Bangalore District Court
M/S Ssjv Project Pvt. Ltd vs M/S Sathyanarayana Raju And Co on 10 April, 2017
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 10th day of April 2017
O.S.No.39/2013
PLAINTIFF : M/s SSJV Project Pvt. Ltd.
Having its registered office at
"Vainetheya', No.64, Terrace Floor
1st Main, ST Bed
Koramangala
Bangalore-560 034
Represented by its Director
Sri.Somashekar Salimath
(By Sri.S.J., Advocate)
V/s.
DEFENDANTS : 1. M/s Sathyanarayana Raju and Co.
Engineers and Contractors
D.No.51-8-40, Plot No.5
Behind BOC Limited
Seethammadhara
Vishakapatnam-530 013
Andhra Pradesh
Rep. by its Managing Partner
Sri.S.Sathyanarayana Raju
2. S.Sathyanarayana raju
Managing Partner
M/s Sathyanarayana Raju and Co.
D.No.51-8--40, Plot No.5
Behind BOC Limited
2 OS No.39/2013 & OS.145/2013
Seethammadhara
Vishakapatnam-530 013
Andhra Pradesh
3. S.Sitarama Raju
Managing Partner
S/o Late Shri.Atchutarama Raju
Flat No.102, Venu Vihar
Apartments
Balaji Hills, Vishakapatnam
Andhra Pradesh
(By Sri.C.M.R., Advocate)
Date of Institution of the Suit: 02.01.2013
Nature of the suit
(Suit on Pronote, suit for Recovery of Money
declaration & possession, suit
for injunction)
Date of commencement of 05.11.2015
recording of evidence:
Date on which the Judgment 10.04.2017
was pronounced:
Total Duration: Year/s Month/s Day/s
04 03 08
O.S.No.145/2013
PLAINTIFF : M/s S.Satyanarayuana Raju & Co.
Engineers & Contractors
Door No.51-8-40, Behind BOC Ltd.
Seethammadhara
Visakhapatnam-530 013
By Sri.Sagiraju Sathyanarayana Raju
Managing Director
Through its Power of Attorney holder
Sri.K.Sreenivasa Rao
Flat No.501, Teja Residency
3 OS No.39/2013 & OS.145/2013
Vaibhav Nagar, Kommadi
Madhurawada
Visakhapatnam-530 041
(By Sri.M.R.M, Advocate)
V/s.
DEFENDANTS : 1. M/s SSJV Projects Pvt. Ltd.
Regd. Office at 12th Floor,
S.N.Towers, 25/2, M.G.Road
Bangalore-560 001
2. SSJV-ZVS Joint Venture
"Vainateya", NKo.64, Terrace Floor
1st Main, ST Bed, Koramangala
Bangalore-560 034
(D1 & D2 By Sri.A.A., Advocate)
Date of Institution of the Suit: 02.01.2013
Nature of the suit
(Suit on Pronote, suit for Recovery of Money
declaration & possession, suit
for injunction)
Date of commencement of 11.06.2017
recording of evidence:
Date on which the Judgment 10.04.2017
was pronounced:
Total Duration: Year/s Month/s Day/s
04 03 08
COMMON JUDGMENT
After hearing the arguments on main suit, it is came to
the knowledge that both the suits are arising out of the
4 OS No.39/2013 & OS.145/2013
closing of work construction barrage and desilting chamber
package for Tapovan Vishnugad Hydro Electric Project dated
22.01.2007 and hence the OS.145/2013 is clubbed with
OS.39/2013. Hence, taken for common Judgment.
2. The plaintiff of OS.39/2013 filed the suit for the
recovery of Rs.6,05,61,574/- from the defendants with
interest at 18% per annum from the date of suit till date of
realization, to award costs of the suit and to pass such other
reliefs.
3. The plaint averments in OS.39/2013 in brief is
that the plaintiff is a company incorporated under the
provisions of Companies Act, 1956. The plaintiff is a reputed
construction company carrying on the business of
construction of dams, tunnels, canals, roads and
infrastructure development. The plaintiff along with its Joint
Venture entity M/s Zarubezh Vodstory (ZVS), a Company
incorporated under laws of Russia, formed Joint Venture in
the name and style of SSJV-ZVS-JV. The purpose of the
5 OS No.39/2013 & OS.145/2013
Joint Venture was for construction of barrage and desilting
package for Tapovan - Vishnugad Hydro Electrical Power
Project of National Thermal Power Corporation Limited
(NTPC).
The SSJV-ZVS-JV was awarded the contract by M/s
NTPC for the construction of barrage and desilting chamber
package for Tapovan - Vishnugad Hydro Electric Power
Project. The defendants represented to the plaintiff that they
have experience and expertise in the area of construction and
induced the plaintiff to issue work order. The work order laid
down the terms and conditions and scope of work of the
defendant No.1. The scope of work of defendant No.1
included construction of barrage and desilting chamber
package for Tapovan - Vishnugad Hydro Electric Power
Project (4x130 MW).
In furtherance of the work order dated 22.01.2007 the
principal employer SSJV-ZVS-JV issued another work order
dated 22.01.2007 agreeing to fund the cost of machinery,
equipment and vehicles etc.
6 OS No.39/2013 & OS.145/2013
As per clause 2 of the work order dated 22.01.2007, the
defendant No.1 was to execute the work strictly in accordance
with the drawings and specifications laid down in the
agreement between SSJV-ZVS and NTPC for the project. The
defendant No.1 had to carry out their scope of work under
oval guidance, survey and technical supervision and strictly
with respect to the terms and conditions of the contract
agreement of NTPC. All other terms and conditions of the
contract agreement the plaintiff had executed with NTPC was
applicable to the defendant No.1 in respect of performance of
the work and payments.
The plaintiff had agreed to pay mobilization advance of
Rs.100 lakhs for making arrangements of accommodation,
labour, transportation of machinery etc. and interests at the
rate of 12% was levied till the said advance was recovered
from the bills.
The defendant No.1 as per clause 18 of the work order
dated 22.1.2007 had agreed to indemnify the plaintiff against
all liabilities that may incur to any other person, all claims,
demands, proceedings, damages, cost and expenses made
7 OS No.39/2013 & OS.145/2013
against or incurred by the plaintiff by reason of any breach of
the terms of the defendant No.1 or his personal.
During the execution of the work order, SSJV-ZVS-JV
vide letter dated 31.3.2008 had brought to the attention of
the defendant No.1 regarding false reporting and negligence
at work site. SSJV-ZVS-JV had informed that the quantity
which the defendant No.1 was excavating in desilting area
was not matching to their actual survey data, and in addition
the staffs of defendant No.1 were giving false reporting on
quantity. During the execution of work order joint
measurement of works with the SSJV-ZVS-JV was conducted
and it was noticed that defendant No.1 with a malafide
intention, had billed extra quantities of works to the total
extent of 33,920.083 cubic meters on the monthly bills.
Apart from this, defendant No.1 had also billed fictitious bills
as if they had executed the works. This was encapsulated in
the letter dated 31.3.2008.
In addition, the defendant No.1 during the course of
execution of work order had illegally shifted sand from the
project site of the above mentioned work order and sold the
8 OS No.39/2013 & OS.145/2013
same to the third parties on many occasions. The quantity of
sand misused by the defendant No.1 was to the extent of
2,884 cubic meters and made money from the illegal shifting
and selling of sand. The same was also brought to the notice
of defendant No.1 vide letter dated 25.2.2009 sent by SSJV-
ZVS-JV.
The plaintiff had provided a vehicle and equipment to
the defendant and further all the running cost, RTO fees,
maintenance etc. were borne by the plaintiff itself and this
was decided as per the work order. However, the defendant
No.1 had not paid the vehicle taxes during the course of
execution of works. But as the same were demanded by the
concerned RTO and the principal employer, SSJV-ZVS-JV the
plaintiff was constrained to pay the vehicle tax payment to the
RTO. The principal employer SSJV-ZVS-JV had also paid
part of the taxes to the RTO.
Inspite of their repeated requests to complete the work
order, the defendant No.1 expressed inability to continue the
work. In view of the same, the principal employer, SSJV-ZVS-
JV and defendant No.1 mutually agreed to cancel the work
9 OS No.39/2013 & OS.145/2013
order. The defendant No.1 vide letter dated 15.7.2009
addressed to SSJV-ZVS-JV accepted that they could not
execute the work as per the time schedule and handed over
the plant and machinery along with the list of inventories.
SSJV-ZVS-JV acknowledged the receipt of inventories
and valuation arrived by the defendant No.1 and thereafter
the plaintiff took over the work of defendant No.1. The
plaintiff upon taking over the work of defendant No.1,
prepared final settlement of accounts and the same was also
acknowledged by the defendant No.1.
As on the date of final settlement of accounts i.e. on
28.12.2009 the defendant No.1 was due to the plaintiff an
amount of Rs.3,15,35,313/-only. The said amounts were
calculated as the net debit balance in the books of accounts
of the plaintiff before adjustment as on 28.12.2009.
After taking over the work order and after adjustment of
their books of account, it is noticed that since the defendant
No.1 had billed extra quantities of works to the total extent of
33,920.083 cubic meters on their monthly bills and had also
billed fictitious bills as if they had executed the works, which
10 OS No.39/2013 & OS.145/2013
was brought to the notice of the defendant No.1 vide letter
dated 31.3.208. The plaintiff is entitled to receive back the
payments made to the defendant No.1 i.e. the excess payment
plus interest.
They are entitled to receive the cost of sand plus interest
on that amount, which the defendant No.1 had illegally
shifted sand from the project site and sold the same to the
third parties to the extent of 2,884 cubic meters. The plaintiff
is further entitled to receive payment made towards vehicle
and equipment cost, running cost, RTO fees, maintenance
etc.
The plaintiffs are entitled to and the defendant No.1 is
due and liable to pay the following amount as explained in
the table below:
Amount to
Interest on
be payable
Sl. the amount
Particulars by the Total
No. payable @
contractor
18% p.a.
(Rs).
1 Amount 3,15,35,313 1,68,73,552 4,84,08,865
payable as
per the
settlement
11 OS No.39/2013 & OS.145/2013
dated
28.12.2009
2 Extra 36,03,822 22,43,193 58,52,015
quantities
billed
3 Sand theft 21,63,000 14,82,692 36,45,692
4 Vehicle taxes 16,35,019 10,19,983 26,55,002
Grand Total 3,89,37,154 2,16,24,420 6,05,61,574
Defendant No.1 was unable to complete the project in
time, caused delay in completion of the project, despite
several requests and reminders, failed to pay the amount,
which is legally due and liable to be paid to the plaintiff. The
defendant No.1 has been evading payment by one or the other
pretext and has been postponing the payment date.
When such being the case, the plaintiff was shocked
and surprised by the legal notice dated 7.12.2012 issued by
the defendant No.1 calling upon the plaintiff to make payment
of Rs.1,12,69,778/- including an amount of Rs.73,73,102
alleged to be due to the plaintiff plus 38,95,675/- interests at
the rate of 18% from 28.12.2009 till the date of the legal
notice.
12 OS No.39/2013 & OS.145/2013
The plaintiff issued reply to the legal notice of the
plaintiff on 21.12.2012 narrating the true and correct facts
and called upon the defendant No.1 to pay Rs.6,29,80,880/-
legally due and liable to be paid by the defendant No.1.
The defendants No.2 and 3 are the Managing Partners
of the defendant No.1 and they are responsible for the day to
day affairs of the defendant No.1. Hence, the defendants No.2
and 3 are jointly and severally responsible to pay the
amounts due to the plaintiff. The plaintiff is represented by
its Director in the present suit. Hence, prayed to decree the
suit.
4. In response to the summons issued, the
defendants No.1 to 3 appeared before the court through their
counsel and filed written statement contending that without
joining plaintiff's principal employer viz. SSJV-ZVS-JV as a
party to the suit, plaintiff is not supposed to mention
regarding work order assigned by SSJV-ZVS-JV. It can be
inferred that SSJV-ZVS-JV has no dispute or claim. Both
the parties as per the settlement terms (letter dated
13 OS No.39/2013 & OS.145/2013
28.12.2009) have mutually agreed to close the work order
after considering and taking into account all the stocks, camp
accommodation, machineries, advance settlement etc. the
final settlement was arrived and therefore the allegation that
fictitious bills were raised by the defendants is false,
malicious and mischievous. The defendants strongly contend
and dispute the veracity of the calculations and method
adopted in arriving the net debt balance in the books of
accounts of the plaintiff. In fact the plaintiff is due a sum of
Rs.73,73,102/ to the defendants which sum the defendants
had to pay to their creditors. Plaintiff is obliged to pay the
said sum to the defendants as per the agreement at the time
of closing of work orders. The settlement amount includes
the liability of the defendants to the creditors. This liability
has been taken over by the plaintiff for payment. For
recovery of the said amount numbers of requests were made
by means of letters, e-mails etc. for which no reply was
received from the plaintiff. This correspondence was
produced as documents in case No.145/2013 filed by the
defendants for recovery of the said amount. On getting
14 OS No.39/2013 & OS.145/2013
response from the plaintiff the defendant No.1 has caused a
legal notice dated 7.12.2012 to the plaintiff and its employer.
To the surprise the defendant, the plaintiff instead of
honouring of the commitment has caused a reply notice dated
21.12.2012 making wild allegations and fictitious claims.
On receipt of the reply legal notice and finding that no
proper response forth coming from the plaintiff the defendant
No.1 has filed a suit on 2.1.2013 in the City Civil Court,
Bangalore for recovery of the said amount of Rs.73,73,102/-.
The plaintiff has not made any claim regarding the suit claim
at any time. It is only in the reply notice dated 21.12.2012 to
the legal notice dated 7.12.2012 caused by the defendants.
In order to pay to their creditors, the defendants have
accepted another work order No.SSJV/SORANG/WO/2009-
10/01 dated 10.4.2009 regarding roads to job facilities and
roads to project colony works. As mutually agreed for
adjustment; a sum of Rs.3,15,32,282/- has been adjusted
towards the debit balance of Rs.3,15,32,313/-. Hence, no
amount is due to the plaintiff by the defendants. As
submitted in the previous paras the plaintiff in turn is due a
15 OS No.39/2013 & OS.145/2013
sum of Rs.73,73,102/. On the following grounds based on
legal and material facts the suit deserves dismissal in limine.
a) The plaintiff's claim is based only on
mutual agreement letter dated 28.12.2009.
The claim is not tenable as in the said
letter at para 4 "It is further agreed that
they shall not be any claim whatsoever
nature from either parties in respect of the
subject work". Hence, there is no cause of
action for the suit as alleged by the plaintiff
that the cause of action arose on
28.12.2009.
b) There is no demand from the plaintiff for
the said sum of suit claim (so called due) at
any time. A reply notice to the legal notice
caused by the defendant will not create any
cause of action.
c) The claim regarding the alleged theft of the
sand, extra quantity billed or based on
letters dated 31.3.2008 and 25.2.2009,
which is included in the suit claim is
barred by limitation as the suit is filed on
2.1.2013.
d) The suit also fails on the ground of non-
joinder of parties.
16 OS No.39/2013 & OS.145/2013
e) The plaintiff did not disclose in the plaint
about the adjustments made with respect
to the work undertaken by defendants
against work order No.SSJV/SORANG/
WO/ 2009-10/01 dated 10.4.2009.
Hence, prayed to dismiss the suit.
5. The plaintiff of OS.145/2013 file the suit for the
recovery of Rs.1,12,69,778/- from the defendants with
interest at 18% per annum from the date of suit till date of
realization, to award costs of the suit and to pass such other
relief's.
6. The plaint averments in OS.145/2013 in brief is
that the plaintiff is a Registered Partnership Firm engaged in
the business of execution of Civil Engineering Construction
Work contracts. The defendants had awarded the work of
"Construction of Barrage and Desilting Chamber Package for
Tapovan Vishnugad Hydro Electric Project" to the plaintiff
dated 22.01.2007. The defendant has agreed to mobilize
certain vehicles, equipment and machinery on the basis of
17 OS No.39/2013 & OS.145/2013
financing the cost of equipment and the same will be treated
as advance in the books of account on recoverable from
plaintiff's running account bills with interest @ 12% p.a. vide
agreement executed on 24.01.2007 by defendant No.2 and
the plaintiff. Whereas the defendants has also awarded
another work of "Execution of Work of Roads to Job facilities,
roads to project colony and road widening works for SORANG
Hydro Electric Project in the state of Himachal Pradesh. The
defendant and the plaintiff have mutually agreed to close the
work of construction of Barrage & Desilting Chamber package
for Tapovan Vishnugad Hydro Electric Project (4 x 130 MW)
and reduced the same in writing vide letter dated 28.12.2009.
It was agreed to take over the Vehicles, Equipment and
machinery on 'as is where is' basis along with Operators,
Mechanical staff and technical supervisors including some of
the regular technical staff of the plaintiff. It was also
mutually agreed that defendants shall take over all the
materials like sand, boulders etc. and also the store stock,
complying accommodation of the plaintiff and give due credit
the same. The defendants and the plaintiff have jointly
18 OS No.39/2013 & OS.145/2013
identified the liability to creditors of the plaintiff to the tune of
Rs.73,73,102/- up to 30.06.2009. For the defendant to take
over the same to make the payment and added the said
Rs.73,73,102/- to overall liability of the plaintiff for the above
work order, thus finally arriving at Rs.3,15,33,313/-. As the
defendants have to pay an amount of Rs.3,15,33,282/- to the
plaintiff in respect of works executed under the work order
dated 10.04.2009 for which the defendants has deducted TD
from the gross bills, paid to the credit of central government
and issued TDS certificates also to the plaintiff and while
finalizing the closing of the work order No.SSJV/BNG/2006-
07 dated 22.01.2007, it was mutually agreed by the
defendants and the plaintiff that both the amounts will be set
off against each other. As per the settlement agreement dated
28.12.2009 the defendants has agreed to pay the creditors of
the plaintiff to the tune of Rs.73,73,102/ but failed to honor
its commitment of paying to the creditors. That as the
pressure from the creditors was mounting the plaintiff had to
undertake another work with L&T JV in the same area and
cleared off the dues on its own. Thus the defendants has
19 OS No.39/2013 & OS.145/2013
become liable to pay the amount of Rs.73,73,102/- to the
plaintiff. The work under the Work Order
No.SSJV/BNG/206-07 dated 22.01.2007 was stopped in the
month of June, 2009 and as plaintiff and the defendants have
mutually agreed to close the work under a settlement
agreement dated 28.12.2009. Inspite of several oral, written
and electronic mail requests by the plaintiff for release of
payment of its legitimate due acknowledgements from both
defendants for having received the legal notice. The
defendants for once have acknowledged the receipt of the
legal notice and sent a reply notice through their counsel on
21.1.2012. In the said reply notice, the defendant instead of
accepting its liability as agreed vide settlement agreement
dated 28.12.2009, has made untenable, baseless, fictitious
and imaginary counter claims against the plaintiff,
conveniently avoided the mentioning of the due amount of
Rs.3,15,33,282/- to the plaintiff for the work executed under
the work order dated 10.04.2009 for the work of "Execution of
works of Roads to Job facilities, roads to project colony and
road widening works for SORANG Hydro Electric Project in
20 OS No.39/2013 & OS.145/2013
the state of Himachal Pradesh' for which TDS has been
deducted from the Bills and paid to the credit of central
government. The plaintiff having not received the due amount
from the amount of Rs.73,73,102/ the defendants has
released the payment nor acknowledge the receipt request
letters.
i) Letter dated 15.10.2011
ii) Gentle Reminder letter dated 14.11.2011
iii) Letter dated 15.10.2012
iv) Letter dated 05.11.2012
v) E-mail of letter dated 05.11.2012
The plaintiff has made several oral requests to the
defendants and always it was assured that the payment will
be released shortly, but so far nothing materialized. After
observing the continued studied silence from the defendants,
the plaintiff has got issued a legal lawyer's notice on
07.12.2012 demanding release of its legitimate and genuine
due amount of Rs.73,73,102/- along with interest at 18%
from the date of settlement agreement. The original legal
notice dated 07.12.2012 was sent to both defendants by
21 OS No.39/2013 & OS.145/2013
RPAD. The plaintiff's counsel has received the postal
defendants, preferred this plaint for recovery of its legitimate
and genuine due amount of Rs.73,73,102/- along with
interest at 18% p.a. from the date of settlement agreement i.e.
28.12.2009. The plaintiff felt that no purpose will be served
in giving reply to the said reply legal notice and also keeping
in view the limitation period for filing suit, the plaintiff
preferred not to reply. Hence, prayed to decree the suit.
7. Upon service of summons, defendants No.1 and 2
appeared before the court through their counsel and filed
written statement contending that SSJV-ZVS-JV was awarded
the contract by M/s NTPC for the construction of barrage and
distilling chamber package for Tapovan-Vishnugad Hydro
Electric Power Project. The plaintiffs represented to the
defendants that they have experience and expertise in the
area of construction and induced the defendants to issue a
work order. The scope of work of the plaintiff included
construction of Barrage and Distilling Chamber package for
Tapovan-Vishnugad Hydro Electric Power Project (2 x
22 OS No.39/2013 & OS.145/2013
130MW). In furtherance of the work order dated 22.01.2007,
the principal employer SSJV-ZVS-JV issued another work
order dated 22.01.2007 agreeing to fund cost of machinery,
equipment and vehicles etc. As per clause-2 of the work
order dated 22.01.2007 the plaintiff executed the work strictly
in accordance with the drawings and specifications laid down
in the agreement between SSJV-ZVS and NTPC for the
project. The plaintiff had to carry out their scope of work
under overall guidance, technical supervision and strictly
with the respect terms and conditions of the contract
agreement the defendant had executed the NPTC was
applicable to the plaintiff in respect of performance of the
work and payments. The defendant had agreed to pay
mobilization of Rs.100/ lakhs for making of arrangements of
accommodation, labour, transportation of machinery, etc.
and interest at the rate of 12%, which was levied till the said
advance was recovered from the bills. During the execution
of the work order, SSJV-ZVS-JV vide letter dated 31.03.2008
had brought to the attention of the plaintiff regarding false
reporting and negligence at work site. SSJV-ZVS-JV had
23 OS No.39/2013 & OS.145/2013
informed that the quantity which the plaintiff was excavating
in distilling area was not matching to their actual survey
data, in addition, the staffs of the plaintiff were giving false
reporting on quantity. During the execution of work order
joint measurement of works with the SSJV-ZVS-JV was
conducted and it was noticed that plaintiff had also raised
fictitious bills as if they had executed the works. This work
encapsulated in the letter dated 31.03.2008. In addition,
plaintiff during the course of execution of work order, had
illegally shifted sand from the project site of the above
mentioned work order sold the same to the third parties on
many occasions. The quantity of the said misused by the
plaintiff was to the extent of 2,884 cubic meters and made
money from the illegal shifting of sand. The same was also
brought to the notice of the plaintiff vide letter dated
25.02.2009 sent by SSJV-ZVS-JV. The defendant had
provided a vehicle and equipment to the plaintiff and further
all running cost, RTO fees, maintenance, etc. were borne by
the defendant itself and this was decided as per the work
order. However, the plaintiff had not paid the vehicle taxes
24 OS No.39/2013 & OS.145/2013
during the course of execution of works. But as the same
demanded by the concerned RTO and the principal employer,
SSJV-ZVS-JV. The defendant was constrained to pay the
vehicle tax payment to the RTO. Inspite of their repeated
requests to complete the work order, the plaintiff expressed
their inability to continue work. In view of the same, the
principal employer, SSJV-ZVS-JV and the plaintiff was
constrained to pay the vehicle tax payment to the RTO. The
principal employer SSJV-ZVS-JV and also paid part of the
taxes to the RTO. Inspite of their repeated requests to
complete the work order, the plaintiff expressed their inability
to continue the work. In view of the same, principal
employer, defendant and the plaintiff mutually agreed to
cancel work order. The plaintiff vide letter dated 15.07.2009
addressed to SSJV-ZVS-JV accepted that they could not
execute the work as per time schedule and handed over the
plant and machinery along with the list of inventories. SSJV-
ZVS-JV acknowledged the receipt of inventories and valuation
of the plaintiff and thereafter the defendant took over the
work of the plaintiff. As on the date of final settlement of
25 OS No.39/2013 & OS.145/2013
accounts i.e. on 28.12.2009 the plaintiff was due to the
defendant an amount of Rs.3,15,25,313/-. The said amounts
were calculated as the net debit balance in the books of
accounts of the plaintiff as on 28.12.2009. As per the
averments made in the plaint and the documents referred by
the plaintiff, there seems to approbation and reprobation of
the averments and documents produced. A document dated
23.12.2009 wherein the plaintiff has sought his present case
on the settlement agreement. There is no due of any amount
to the plaintiff from the defendants. It is true to suggest that
defendants had awarded the work of "Construction of Barrage
and Desilting chamber Package for Tapovan Vishnugad Hydro
Electric Project" to the plaintiff vide work order
No.SSJV/BNG/2006-07 dated 22.01.2007. It is true to
suggest that the defendants has also awarded another work
of "Execution of works of works to job facilities, roads to
project colony and road widening works for SORANG Hydro
Electric Project in the state of Himachal Pradesh vide Work
Order No.SSJV/SORANG/2009-10/01 dated 10.04.2009. As
per the settlement agreement dated 28.12.2009, the
26 OS No.39/2013 & OS.145/2013
defendants have agreed to pay to the creditors of the plaintiff
to the tune of Rs.73,73,102/ to the plaintiff. Hence, prayed
to dismiss the suit.
8. On the basis of the pleadings of both the parties,
the following issues have been framed in both the suits as
under:
OS.39/2013
1. Whether the plaintiff proves that the
defendant No.1 is due of Rs.6,05,61,574/-
towards the discharge of liability as
contended in para No.7 to 19 of the plaint?
2. Whether the plaintiff is entitled to the reliefs
sought for?
3. What decree or order?
OS.145/2013
1. Whether the plaintiff proves that, the
defendants had awarded the work of
construction of Barrage and Desilting
Chamber Package for Tapovan Vishnugad
Hydro Electro Project" by work order dated
22.01.2007 and the defendants had agreed to
mobilize certain vehicles, equipment and
27 OS No.39/2013 & OS.145/2013
machinery on the basis of financing the cost
of equipment and the same was to be treated
as advance in the books of account
recoverable from plaintiff's running account
bills with interest at 12% per annum vide
agreement dated 24.1.2007?
2. Whether the defendants prove that, the
excavating in distilling area made by the
plaintiff was not matching with the actual
survey data and the staff of the plaintiff were
giving false report on quantity and the
plaintiff had illegally shifted sand from the
project site and had sold it to third parties on
many occasions and the plaintiff had made
money out of illegally shifting of 2,884 cubic
meters of sand?
3. Whether the plaintiff proves that, it was
agreed that the vehicles, equipment and
machinery on "as is where is" basis along
with operators, mechanical staff and
technical supervisors was agreed to be taken
over by the plaintiff and the defendant had to
take sand boulders etc., and also the store
stock camping and accommodation of the
plaintiff and give due credit to the same?
28 OS No.39/2013 & OS.145/2013
4. Whether the plaintiff is entitled to recover an
amount of Rs.1,12,69,778/- from the
defendants with interest at 18% per annum,
from the date of suit till realization?
5. What Decree or Order?
9. In OS.39/2013 the Director of Plaintiff Company
examined himself as PW1 and got marked 5 documents at
Ex.P.1 to P.5. The defendant examined its power of attorney
holder as DW1 and got marked sixteen documents at Ex.D.1
to D.16. After clubbing of both the suits these witnesses and
documents of the plaintiff and defendant are continued as it
is.
10. In OS.145/2013 the power of attorney holder of
plaintiff firm examined himself as P.W.1 and got marked
eighteen documents at Exs.P.1 to P.18. After clubbing this
evidence of PW1 is treated as further examination in chief of
DW1 and these Ex.P.1 to 18 are renumbered as Ex.D.6 to
Ex.D.23. The defendant No.1 Company examined its Director
as DW1 and got marked 5 documents at Ex.D.1 to D.5 and
29 OS No.39/2013 & OS.145/2013
examined one witness as DW 2. After clubbing this evidence
of DW 1 is treated as further examination in chief of PW1 and
these Ex.D1 to 5 are renumbered as Ex.P.6 to 10 and the
evidence of the DW2 is renumbered as P.W.2.
11. Heard the arguments and perused the records of
the case.
12. My findings to the above issues in OS No.
39/2013 are as under:
Issue No.1 - Partly in the affirmative
Issue No.2 - Partly in the affirmative
Issue No.3 - As per the final order, for the following:
13. My findings to the above issues in OS No.
145/2013 are as under:
Issue No.1 - Redundant
Issue No.2 - Do not arise for consideration
Issue No.3 - In the negative
Issue No.4 - In the negative
30 OS No.39/2013 & OS.145/2013
Issue No.5 - As per the final order, for the following
REASONS
14. ISSUE No.1 of OS.39/2013 and Issue Nos.1 to 3
of OS.145/2013:- Since these issues are interconnected with
each other hence to avoid repetition of facts and evidence they
are taken up together for common discussion.
15. The plaintiff of OS.39/2013 and defendant No.1 of
OS.145/2013 are one and the same and for the sake of
convenience in the judgment they will be referred as M/s
SSJV Projects Pvt. Ltd. The defendant No.1 of OS.39/2013
and the plaintiff of OS.145/2013 are one and the same and
for the sake of convenience in the judgment they will be
referred as M/s Sathyanarayana Raju and Co. After clubbing
of both the suits the witnesses and the exhibits are
renumbered as stated supra in Para No. 9 & 10.
16. It is admitted fact that the SSJV and ZVS Joint
Venture was awarded the contract by M/s NTPC for the
31 OS No.39/2013 & OS.145/2013
construction of 'barrage and desilting Chamber Package for
Tapovan - Vishnugad Hydro Electric Power Project'. It is
admitted fact that the SSJV - ZVS - JV in turn issued work
order for construction of 'barrage and desilting Chamber
Package for Tapovan - Vishnugad Hydro Electric Power
Project' in favour of the M/s Sathyanarayana Raju and
company with the work orders both are dated 22.01.2007
agreeing to fund the cost of machinery, equipment and
vehicles etc. The Ex.P.1 & 2 shows the same. It is admitted
fact that as per the final settlement of the accounts as per
Ex.P.4 it was mutually agreed by the SSJV - ZVS - JV and
the M/s Sathyanarayana Raju and company to cancel the
work order and the M/s Sathyanarayana Raju and company
was due of Rs.3,15,35,313/ to the plaintiff. It is admitted fact
that the M/s SSJV Projects Pvt. Ltd. awarded another work of
'execution of work' of roads to job facilities, roads to project
colony and road widening works for SORANG Hydro Electric
Project in the state of Himachal Pradesh dated 22.01.2007.
The Ex.D.4 shows the same.
32 OS No.39/2013 & OS.145/2013
17. As per the M/s SSJV project Pvt. Ltd. it has
found false reporting and negligence at the work sight and
with malafide intention had billed extra quantities of work,
illegally shifted the sand from project site and the M/s
Sathyanarayana Raju and company had not paid vehicle
taxes during the course of execution of work and inspite of
repeated request to complete the work order, the M/s
Sathyanarayana Raju and company expressed their inability
to continue the work and hence mutually agreed to cancel the
work order as per Ex.P.4. The M/s Sathyanarayana Raju and
company denied the reason for cancellation of work order and
admitted that mutual agreement to cancel the work order.
When both the parties are making their claims on the basis of
Ex.P.4, then for what reason the work order was cancelled
looses importance and hence it is immaterial to decide these
suits why the work orders both dated 22.1.2007 were
cancelled.
18. The plaintiff of OS.39/2013 claiming the said
Rs.3,15,35,313/- apart from Rs.36,03,822/- towards the
33 OS No.39/2013 & OS.145/2013
extra quantities billed, Rs.21,63,000/- towards sand theft
and Rs.16,35,019/- towards vehicle taxes and in all
Rs.3,89,37,154/- with interest and the said table containing
those items reads thus:
Amount to
Interest on
be payable
Sl. the amount
Particulars by the Total
No. payable @
contractor
18% p.a.
(Rs).
1 Amount 3,15,35,313 1,68,73,552 4,84,08,865
payable as
per the
settlement
dated
28.12.2009
2 Extra 36,03,822 22,43,193 58,52,015
quantities
billed
3 Sand theft 21,63,000 14,82,692 36,45,692
4 Vehicle taxes 16,35,019 10,19,983 26,55,002
Grand Total 3,89,37,154 2,16,24,420 6,05,61,574
19. The plaintiff of OS.145/2013 claiming the amount
of Rs.73,73,102/- mentioned in Ex.P.4.
34 OS No.39/2013 & OS.145/2013
20. As stated supra as both the plaintiffs claiming the
amount under the Ex.P.4, which is containing of two pages,
which reads thus :
"The 1st page of Ex.P.4 reads thus:
Sub: Closing of the work of construction
barrage and desilting chamber
package for Tapovan Vishnugad
Hydro Electric Projects awarded to you
vide work order dated 22.1.2007
Dear Sir,
Inspite of our repeated requests, you were not
able to carry out the work awarded to you as per
the program. You also expressed your inability to
continue the work. Therefore, we mutually agreed
to cancel the above work order on the following
settlement terms:
The final settlement of accounts shall be stand as
follows:
1) It has been mutually agreed that the work awarded
to the contractor shall be taken over the company
w.e.f. 1.7.2009
2) That all the advance, work bills, claims etc. are to
be accounted for upto 30th June 2009 for settlement
of accounts.
35 OS No.39/2013 & OS.145/2013
3) It is agreed that the above amount covers all
accounts and considerations and shall be treated
as full and final settlement.
4) It is further agreed that there shall not be any claim
of whatsoever nature from either parties in respect
of the subject work.
5) The applicable TD will be deducted from your
account for the bills receivable amount.
The 2nd Page of Ex.P.4 reads thus:
Net debit balance in the books of SSJV 2,54,42,381.00
Projects Pvt. Ltd., before adjustment:
Add: Debit Balance transferred from 80,83,364.00
SSJV ZVS Joint Venture
Total 3,35,25,745.00
Less: this debit balance adjusted in the
following terms
c) Store stock of M/s S.S.N. Raju & Co.
taken over by SSJV 36,11,040.00
d) Camp accommodation taken over by 57,52,494.00
SSJV
Net Credit balance 93,63,534.00
Add: Liability of M/s S.S.N. Raju & Co. 73,73,102.00
as on 30.6.2009 related to project taken
over by SSJV Projects Pvt. Ltd.
Net debit balance in the books of SSJV 3,15,35,313.00
Projects Pvt. Ltd.
For SSJV Projects Pvt. Ltd.,
Sd/-
36 OS No.39/2013 & OS.145/2013
Authorized Signatory
Accepted
Sd/-
M/s S.Sathyanarayana Raju & Co."
21. M/s Satyanarayana Raju and company in Para
No.12 of the written statement half heartedly disputed the
Ex.P.4 as the veracity of calculations and the method
adopted in arriving the net debt balance in the books of
accounts and it has not explained how the calculations and
method in preparing the Ex.P.4 is wrong and what is the
correct calculation. So also during the course of cross
examination of PW 1 it is not even suggested that the
veracity of calculations and the method adopted in arriving
the net debt balance is wrong and what is the correct
calculation. So in the circumstances it has to be held that
both the parties admit the Ex.P.4. According to this there
was full and final settlement of the amount payable by the
M/s Sathyanarayana Raju and Co. to the M/s SSJV Projects
Pvt. Ltd. is Rs.3,15,35,313/-. With respect to this
Rs.3,15,35,313/- is also concerned M/s Sathyanarayana
37 OS No.39/2013 & OS.145/2013
Raju and Co. took contention since the M/s SSJV Projects
Pvt. Ltd. was due of Rs.3,15,35,313/- to them with respect
to SORANG Hydro Electric Project and the same was adjusted
before filing of these suits. This contention of M/s
Sathyanarayana Raju and Co. shows that they have admitted
the claim of Rs.3,15,35,313/- made by the M/s SSJV Projects
Pvt. Ltd. This makes it very clear that M/s Sathyanarayana
Raju and Co. was liable to pay Rs.3,15,35,313/- to M/s SSJV
Projects Pvt. Ltd. with respect to the Ex.P.4. Further, in this
regard M/s Sathyanarayana Raju and Co. produced Ex.D.5 to
D.8 which are RA Bill No.1 dated 30.5.2009, RA Bill No.2
dated 30.6.2009 and RA Bill No.3 dated 31.7.2009
respectively in all totally amounting to Rs.3,15,35,313/-,
which are with respect to the work order pertaining to
No.SSJV/SORANG/WO/2009-10/01. The M/s SSJV Project
Pvt. Ltd. admits the raising of bills by M/s Sathyanarayana
Raju and Co. with respect to the SORANG Project but it
disputes the liability of them with respect to the SORANG
Project. If this amount is adjusted towards the amount of
Rs.3,15,35,313/- in Ex.P.4 then there will be correspondence
38 OS No.39/2013 & OS.145/2013
between the M/S SSJV Project Pvt. Ltd. and M/s
Sathyanarayana Raju and Co. and definitely there will be
document with regard to the adjustment. No scrap of paper
is produced in order to show there was adjustment of
amount. Hence it cannot said the amount of
Rs.3,15,35,313/- pertaining to SORANG Project was adjusted
towards the amount of Rs.3,15,35,313/- due by the M/s
Sathyanarayana Raju and Co. with regard to the Tapovan
Vishnugad Project.
22. The learned Advocate appearing for the M/s
Sathyanarayana Raju and Co. vehemently argued and filed
the written arguments contending that since in Clause 4 of
Ex.P.4 it is stated that there shall not be any claim
whatsoever nature from either parties in respect of the
subject work and it was agreed that M/s SSJV Projects Pvt.
Ltd has agreed to taken vehicles, equipment and machinery
on "as is where is'' and hence no amount is payable by M/s
Sathyanarayana Raju and Co. to the M/s SSJV Projects Pvt.
Ltd.
39 OS No.39/2013 & OS.145/2013
23. With respect to the arguments of learned Advocate
for M/s Sathyanarayana Raju and Co. is concerned the
Ex.P.4, which is containing two pages has to be read together
and not each page separately. Taking into consideration of
the entire Ex.P.4 it can be made out that except payment of
Rs.3,15,35,313/- to be paid by the M/s Sathyanarayana
Raju and Co. no any amount is payable by M/s
Sathyanarayana Raju and Co. to M/s SSJV Projects Pvt. Ltd
and there is no such clause till Ex.P.4 the M/s SSJV Projects
Pvt. Ltd agreed to take vehicles, equipment and machinery
on "as is where is'' basis.
24. The learned Advocate for appearing for the
Sathyanarayana Raju and Co. relied on the ruling reported
in AIR 1997 DELHI 355(Cofex Exports Ltd V/s Canara Bank)
wherein it is held that the defendant can plead adjustment
prior to the filing of the written statement and also relied
another ruling reported in AIR 1963 Punjab 479(Amarnath
V/s Produce Exchange Corporation Ltd., Calcutta.), wherein
it is held that two separate accounts being between the same
40 OS No.39/2013 & OS.145/2013
parties in the same right could be set off or adjusted against
each other. As stated above though the M/s Sathyanarayana
Raju and company pleaded adjustment of Rs.3,15,35,313/-
before filing of the suit, but the same is not proved. Hence
these rulings are not helpful to the case of the M/s
Sathyanarayana Raju and Co.
25. Now, it is to be seen whether the M/s
Sathyanarayana Raju and Co. is liable to pay Rs.36,03,822/-
towards the extra quantities billed, Rs.21,63,000/- towards
sand theft and Rs.16,35,019/- towards vehicle taxes and in
all Rs.3,89,37,154/- with interest. The Ex.P.3, which is the
letter dated 15.7.2009 shows that the M/s Sathyanarayana
Raju and Co. handed over the plant and machinery to M/s
SSJV Projects Pvt. Ltd. The Ex.P.5 is the letter dated
25.02.2009, which shows that the SSJV - ZVS- Joint Venture
written letter to the M/s Sathyanarayana Raju and Co.
regarding unauthorizing selling of sand from the Barrage site.
So, Ex.P.3 and P.5 are before entering into Ex.P.4. Hence, it
has to be held that taking into consideration of the return of
41 OS No.39/2013 & OS.145/2013
plan and machinery, unauthorised selling of sand and also
the vehicle taxes etc. the Ex.P.4 was entered between M/s
SSJV Projects Pvt. Ltd. and M/s Sathyanarayana Raju and
Co. If the M/s Sathyanarayana Raju and Co. is liable to pay
any amount with respect to the extra quantities billed, sand
theft and vehicles taxes, then the same would have been
mentioned in Ex.P.4. Hence, the M/s Sathyanarayana Raju
and Co. is not liable to pay the amount of Rs.36,03,822/-
towards the extra quantities billed, Rs.21,63,000/- towards
sand theft and Rs.16,35,019/- towards vehicle taxes and in
all Rs.3,89,37,154/- with interest to the M/s SSJV Projects
Pvt. Ltd.
26. As stated above M/s Sathyanarayana Raju and
Co. in OS.145/2013 claims Rs.73,73,102/- from SSJV
Projects Pvt. Ltd. stating that it has paid the said amount to
the creditors of M/s SSJV Projects and hence the SSJV
Projects Pvt. Ltd. is liable to pay the said amount. Firstly M/s
Sathyanarayana Raju and Co. relying on the Ex.P.4 claiming
that the SSJV Project Pvt. Ltd. is liable to pay Rs.73,73,102/-.
42 OS No.39/2013 & OS.145/2013
The Ex.D.9 is the list of sundry creditors, which shows the
amount of Rs.73,73,102/-. Ex.D.10 is the list of sundry
creditors taken over by the SSJV Projects payment made. In
this regard the DW 1 deposed in his cross-examination as the
Ex.D.9 is not in the letter head of the company and it do not
contain the seal of the company and the Ex.D.10 is not
verified by the auditor and Ex.D.10 is not signed by M/s
SSJV Projects Pvt. Ltd. Ex.P.6(b) is said to be the signature of
the person on behalf of the SSJV Projects Pvt. Ltd. Ex.D.11
to D.14 are the letters of M/s Sathyanarayana Raju and Co.
dated 15.10.2011, 14.11.2011, 15.10.2012 and 05.11.2012
respectively calling upon the M/s SSJV Projects Pvt. Ltd. to
pay the amount of Rs.73,73,102/-. The Ex.D.15 - office copy
of legal notice dated 07.12.2012 shows that M/s
Sathyanarayana Raju and Co. got issued legal notice through
their counsel calling upon the M/s SSJV Project Pvt. Ltd. to
pay the amount of Rs.73,73,102/-. Ex.D.16 is the reply
given by M/s SSJV Projects Pvt. Ltd. dated 21.12.2012
denying the claim of Rs.73,73,102/- and contended that it is
the obligation and liability of the M/s Sathyanarayana Raju
43 OS No.39/2013 & OS.145/2013
and Co. to the M/s SSJV Projects Pvt. Ltd. under the Ex.P.4.
In this regard, the said Srinivasa Rao deposed in the cross-
examination that he has also not produced the bills
pertaining to sundry creditors and he has not produced any
bills raised on the SSJV Projects Pvt. Ltd. pertaining to the
sundry creditors. M/s Sathyanarayana Raju and Co. by
admitting Ex.P.4 admits the due of Rs.73,73,102/- to M/s
SSJV Projects Pvt. Ltd. M/s Sathyanarayana Raju and Co.
contending that the amount of Rs.3,15,35,313/- was
adjusted also shows the liability of it to pay the amount of
Rs.73,73,102/-. If really M/s SSJV Projects Pvt. Ltd. is liable
to pay the amount of Rs.73,73,102/-, then definitely the same
would have been shown in Ex.P.4. So, the M/s
Sathyanarayana Raju and Co. has not placed any acceptable
and cogent evidence to show that M/s SSJV Projects Pvt. Ltd.
is liable to pay Rs.73,73,102/- to it.
27. So, from the discussions made above, I am of the
opinion that M/s SSJV Project Pvt. Ltd. proved that M/s
Sathyanarayana Raju and Co. is liable to pay
44 OS No.39/2013 & OS.145/2013
Rs.3,15,35,313/- to it and failed to prove that M/s
Satyanarayana Raju and Co. is liable to pay the remaining
amount of Rs.74,01,841/-. Since the M/s SSJV Projects Pvt.
Ltd. admits the awarding work of construction of Barrage and
Desilting Chamber Package for Tapovan Vishnugad Hydro
Electro Project" by work order dated 22.01.2007 and the
defendants had agreed to mobilize certain vehicles, equipment
and machinery on the basis of financing the cost of
equipment and the same was to be treated as advance in the
books of account recoverable from plaintiff's running account
bills with interest at 12% per annum vide agreement dated
24.1.2007 and hence the issue No.1 of OS.145/2013 is
answered as redundant and when the M/s SSJV Projects Pvt.
Ltd. and Sathyanarayana Raju and Co. entered into full and
final settlement as per Ex.P.4, then question of considering
that excavating in distilling area made by the plaintiff was not
matching with the actual survey data and the staff of the
plaintiff were giving false report on quantity and the plaintiff
had illegally shifted sand from the project site and had sold it
to third parties on many occasions and the plaintiff had made
45 OS No.39/2013 & OS.145/2013
money out of illegally shifting of 2,884 cubic meters of sand
do not survive for consideration and M/s Sathyanarayana
Raju and Co. failed to prove that it was agreed that the
vehicles, equipment and machinery on "as is where is" basis
along with operators, mechanical staff and technical
supervisors was agreed to be taken over by it and the M/s
SSJV Project Pvt. Ltd. had to take sand boulders etc., and
also the store stock camping and accommodation of it and
give due credit to the same. Hence, Issue No.1 of OS.39/2013
is answered partly in the affirmative and Issue No.1 of
OS.145/2013 is answered as redundant and Issue No.2 of
OS.145/2013 is answered as do not arise for consideration
and Issue No.3 of OS.145/2013 is answered in the negative.
28. ISSUE No.2 of O.S. 39/2013 and ISSUE No.4 of
O.S. 145/2013: The Advocate for M/s Sathyanarayana Raju
and Co. submitted that admittedly the said Tapovan
Vishnugad Project was granted by the NTPC to the SSJV &
ZVS Joint Venture, but this suit is only filed by the SSJV.
Hence, the suit is not maintainable. Admittedly the NTPC
46 OS No.39/2013 & OS.145/2013
given the project to M/s SSJV Projects and ZVS Joint
Venture. The OS.39/2013 is for recovery of money. Hence, I
am of the opinion that the M/s SJV Projects Pvt. Ltd. can
maintain the suit against M/s Sathyanarayana Raju and Co.
29. The learned Advocate appearing for the M/s SSJV
Projects Pvt. Ltd. argued that it is came in the cross-
examination of DW1 that Sri.S.Sathyanarayana Raju, who is
the Managing Partner of M/s Sathyanarayana Raju and Co.
has got no obstacles to come to the Court and to give
evidence. But, M/s Sathyanarayana Raju and Co. examined
its power of attorney holder by name K.S.Srinivas Rao as
DW1, who cannot depose on behalf of M/s Sathyanarayana
Raju and Co. as he has no personal knowledge.
30. The learned Advocate appearing for the M/s SSJV
Projects Pvt. Ltd. has relied on the rulings reported in 2005(2)
SCC 217 (Janaki Vashdeo Bhojvani and another V/s
Indusind Bank Ltd. and others), 1986(2) WLN 713(Rajasthan
Shamboo dutt Shastri V/s State of Rajastan.), AIR 1988
47 OS No.39/2013 & OS.145/2013
Rajasthan 185(Ramprasad V/s Hari Narain),
WP.No.20298/2014 (Nagarathnamurthy V/s S.Narayanappa
and others), Civil Appeal No.147-148 of 2001 (Man Kaur
dead by LRs V/s Hartar Singh Sangha and Criminal Appeal
No.763 of 2007 (Omprakash V/s L.Sunitha and others).
31. The learned Advocate appearing for the M/s
Sathyanarayana Raju and Co. relied on the ruling reported in
AIR 2006 KAR 231 (Bhimappa and others V/s Allisab and
others), ILR 2015 KAR 635 (Sajedabanu V/s Alimabanu and
others) and ILR 2014 KAR 84 (R.Narasimha V/s S.P.Sridhar).
32. I have gone through the above rulings relied by
both the counsels with regard to the right of power of attorney
holder to depose on behalf of the party. In this regard, I would
like to rely on the ruling reported in 2005 KAR 4370(Kajudevi
and another V/s H.S.Rudrappa @ Rudy and others), wherein
his lordship held that the decision in the case of Janaki
Vashdeo Bhojwani cannot be accepted as binding precedent
or obiter-dicta in the facts and circumstances of the case. In
48 OS No.39/2013 & OS.145/2013
the above said ruling reported in AIR 2006 KAR 231, wherein
it is held as under:
"B) Evidence Act (1 of 1872), S.61
Documentary evidence - Suit for declaration
of title and possession - Tile of plaintiff
required to be established by production of
documentary evidence - Said evidence can
be adduced by party or by his power of
attorney holder - Evidence of a power of
attorney holder can prove case of plaintiff.
In a suit for declaration of title, the
plaintiff has to establish his title. Title
cannot be established by his personal
knowledge. It has to be established by
producing documents under which he is
claiming title, most of the time under a
registered document. Insofar as documents
are concerned S.61 of the Evidence Act
mandates that the contents of documents
may be proved either by primary or
secondary evidence. Primary evidence
means the documentary evidence produced
for inspection of the Court. Therefore, when
a particular fact is to be established by
production of documentary evidence there is
no scope for leading oral evidence and there
49 OS No.39/2013 & OS.145/2013
is no scope for personal knowledge. What is
to be produced is the primary evidence i.e.
document itself. The said evidence can be
adduced by the party or by his power of
attorney holder. Production of the document,
marking of the document is a physical act
which does not need any personal
knowledge. Even proof of the document is
by examining the persons who are well
versed with the document or by examining
the attesting witnesses or the executants of
the document. Again the personal knowledge
of the plaintiff has no role to play. In those
circumstances it is open to the plaintiff to
examine the power of attorney holder,
produce the documents through the power of
attorney holder, mark the same and examine
witnesses to prove the said document if it is
denied. Therefore, the contention that the
evidence of a power of attorney holder can
prove the case of the plaintiff in all cases is
not correct."
33. From the above said rulings it is clear that their
lordships held that the power of attorney holder has got right
50 OS No.39/2013 & OS.145/2013
to give evidence on behalf of the party and if the power of
attorney holder does not have the personal knowledge about
the facts of the case, then his evidence cannot be accepted.
In the facts and circumstances of the case, the oral evidence
of power of attorney holder is formal one and the case can be
made out on the basis of the documents produced by both
the parties. Hence, the evidence of the said K.Srinivas Rao on
behalf of M/s Sathyanarayana Raju and Co. will no way effect
its case.
34. The learned Advocate appearing for M/s SSJV
Projects Pvt. Ltd. submits that the M/s Sathyanarayana Raju
and Co. represented by Sri.S.Sathyanarayana Raju filed
OS.No.145/2013 through his power of attorney holder
Sri.K.Srinivas Rao and the said K.Srinivas Rao deposed in
both the suits, but the M/s Sathyanarayana Raju and Co.
has not produced reconstituted partnership deed under
which the said Sathyanarayana Raju has got right to file
OS.No.145/2013 and authorized the said K.Srinivas Rao in
both the suits. M/s Sathyanarayana Raju and Co. in
51 OS No.39/2013 & OS.145/2013
OS.39/2013 produced Ex.D.1, which is power of attorney,
which shows that the partners by name Sagiraju
Sathyanarayana Raju and Sagiraju Seetharamraju authorized
said K.Srinivas Rao to depose before the Court. In
OS.145/2013 M/s Sathyanarayana Raju and Co. produced
Ex.D.17, which is power of attorney executed by
S.Sathyanarayana Raju in favour of said K.Srinivas Rao to
depose in this suit. The M/s SSJV Projects Pvt. Ltd. do not
dispute that M/s Sathyanarayana Raju and Co. is not a
registered partnership. Such being the case it goes without
saying that the one of the partner of M/s Sathyanarayana
Raju has got authority to file the suit and authorize the said
Srinivas Rao to depose before this court.
35. The learned Advocate appearing for the M/s
Sathyanarayana Raju and Co. relied on the ruling reported in
ILR 1992 KAR (Shivananjappa V/s Maralasiddappa and
Sons), wherein it is held that the suit filed by only one partner
in the name of the firm is maintainable. The OS.145/2013
52 OS No.39/2013 & OS.145/2013
filed by Sagiraju Sathyanarayana Raju, who is the partner of
M/s Sathyanarayana Raju and Co. is maintainable.
36. In view of my findings on Issue No.1 of
OS.39/2013 and issue No.1 to 3 of OS.145/2013 the plaintiff
of OS.No.39/2013 is entitled for the reliefs partly and the
plaintiff of OS.145/2013 is not entitled for the reliefs. Hence,
Issue No.2 of OS.39/2013 is answered partly in the
affirmative and Issue No.4 of OS.145/2013 is answered in the
negative.
37. ISSUE NO.3 of O.S. 39/2013 and Issue No.5
O.S.145/2013:- In the result, I proceed to pass the following:
ORDER
OS.39/2013 is partly decreed with costs. The defendants of OS.39/2013 are liable to pay Rs.3,15,35,313/- to the plaintiff with interest at the rate of 18% p.a. from the date of suit till the date of realization. 53 OS No.39/2013 & OS.145/2013
The suit of the plaintiff of OS.39/2013 with respect to the remaining amount of Rs.74,01,841/- is dismissed.
OS.145/2013 is dismissed with costs. Draw decree accordingly.
The original judgment has to be kept in OS.39/2013 and the copy of the same has to be kept in OS.145/2013.
(Dictated to the judgment writer directly on the computer, thereof, is corrected and then pronounced by me in the open court, on this the 10th day of April 2017).
( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE ANNEXURE I. List of witnesses examined on behalf of plaintiff of OS.39/2013 and defendants of OS.145/2013:
P.W.1 Somashekhar Salimath P.W.2 Dayanand.K II. List of witnesses examined on behalf of defendant of OS.39/2013 and plaintiff of OS.145/2013:
D.W.1 K.Sreenivasa Rao 54 OS No.39/2013 & OS.145/2013 III. List of documents exhibited on behalf of plaintiff of OS.39/2013 and defendants of OS.145/2013:
Ex.P.1 C/c of work order dt.22.1.2007 Ex.P.2 C/c of another work order dt.22.1.2007 Ex.P.3 C/c of letter dt.15.7.2009 Ex.P.4 C/c of letter dt.28.12.2009 Ex.P.5 Another c/c of letter dt.25.2.2009 Ex.P.6 Power of Attorney Ex.P.7 Work order given by the defendant to the plaintiff Ex.P.8 Another agreement for procuring the machineries for the construction work Ex.P.9 Work order dated 10.04.2009 Ex.P.10 Settlement deed dated 28.12.2009 Ex.P.11 List of creditors of the plaintiff Ex.P.11(a) Signatures of the plaintiff and & (b) defendant Ex.P.12 to Office copies of original bills with 14 respect of 3rd work orders Ex.P.15 Office copy of the list of creditors to whom we have paid out of pocket Ex.P.16 Office copy of demand dated 55 OS No.39/2013 & OS.145/2013 05.11.2012 Ex.P.17 Another office copy of demand letter sent to the defendant dated 05.10.2012 Ex.P.18 Another office copy of demand letter sent to the defendant dated 15.11.2011 Ex.P.19 Another office copy of demand letter sent to the defendant dated 14.11.2011 Ex.P.20 Office copy of legal notice issued to the defendant Ex.P.21 & Two Postal acknowledgements 22 Ex.P.23 Reply given by the defendants dated 21.12.2012 IV. List of documents exhibited on behalf of defendant of OS.39/2013 and plaintiff of OS.145/2013:
Ex.D.1 Power of attorney dt.6.9.2013 Ex.D.2 Work order dt.22.1.2007 Ex.D.3 Work order dated 24.1.2007 Ex.D.4 Work order dt.10.4.2009 Ex.D.5 to 7 C/c of RA bills Ex.D.8 C/c of grant dt.28.12.2009 Ex.D.9 List of sundry creditors 56 OS No.39/2013 & OS.145/2013 E x.D.10 Payments made to sundry creditors Ex.D.11 to Letter to plaintiff requesting for 14 payment of suit claim in OS.145/2013 Ex.D.15 Legal notice dt.7.12.2012 Ex.D.16 Reply legal notice by plaintiff Ex.D.17 Office copy of work order dated 22.01.2007 Ex.D.18 Original additional work order dated 22.01.2007 Ex.D.19 Letter received from the plaintiff dated 15.07.2009 Ex.D.20 Original final settlement of accounts dated 28.12.2009 Ex.D.21 Office copy of the letter dated 25.02.2009 XLI ADDL.CITY CIVIL JUDGE BANGALORE 57 OS No.39/2013 & OS.145/2013