Delhi District Court
Intex Technologies India Limited vs Tata Consultancy Service Limited on 30 July, 2024
IN THE COURT OF Ms. NIRJA BHATIA
DISTRICT JUDGE (COMM-07), DIGITAL
SOUTH-EAST DISTRICT, SAKET COURT, NEW DELHI
CS (COMM) 607/22
Intex Technologies India Ltd.
A 61, Okhla Phase II
Okhla Industrial Estate,
New Delhi - 110020
.........Plaintiff
Versus
Tata Consultancy Services Limited
9th Floor, Nirmal Building,
Nariman Point, Mumbai 400021,
Maharashtra
..... Defendant
Date of Institution: 09.06.2022
Arguments concluded on : 06.07.2024
Date of Judgment: 30.07.2024
JUDGMENT
This recovery suit is filed for Rs. 31,05,058.82/- along with interest @ 18% (pendente lite and future interest) by M/s Intex Technologies India Ltd. (hereinafter to be referred as plaintiff) having its registered office at A-61, Okhla Phase - II, Delhi. The plaint is signed by Sh. Rishabh Melhotra, AR/ Deputy Manager CS and Legal authorized vide resolution dated 26.05.2022.
NIRJA BHATIA Digitally signed by NIRJA BHATIA Case of the plaintiff Date: 2024.07.30
2. The suit is premised on below assertions:
15:47:55 +0530 Intex Technologies Vs. Tata Consultancy Page 1 of 46
(i) The plaintiff is engaged in the business of manufacturing, marketing, distribution and trading of various electronic and consumer durable products, Computer Hardware peripherals, speaker etc, under the trademark "Intex" throughout the India.
(ii) The M/s Tata Consultancy Services Limited (hereinafter to be referred as defendant) is in business of IT Services consulting and business solutions.
(iii) That both parties entered in an agreement for supply of products and providing services at various locations and MDAS Module of R-APDRP- Nagaland. The plaintiff has to raise invoices on defendant against the completed work.
(iv) The following invoices are unpaid despite completion of work:-
a. Invoice bearing no. 1009104152 dated 22.03.2018 with due date 06.05.2018 amounting to INR 11,80,000/-
b. Invoice bearing no. 1009104162 dated 29.08.2018 with due date 13.10.2018 amounting to INR 24,80,742/-
(v) The total amount of Rs. 31,05,058/- shown outstanding in books of account and has not been paid despite reminder and emails.
(vi) That though the agreement is not available being not traceable, defendant be put to produce the copy of the same.
(vii) Plaintiff further asserts that defendant cannot retract from its email dated 21.08.2018 by which plaintiff was asked to raise bill NIRJA and allege non-completion since asking plaintiff to raise the bills BHATIA Digitally signed tantamounts to admission of completion of work.
by NIRJA BHATIA Date: 2024.07.3015:48:05 +0530 (viii) Suit is filed after compliance of Section 12 A and is Intex Technologies Vs. Tata Consultancy Page 2 of 46 claimed to be in this Court's jurisdiction.
Defendant's Stand Preliminary objections
3. In the Written Statement, defendant raised following preliminary objections:-
(i) This suit is barred by limitation being filed beyond 3 years from the date of invoice of 13.10.2018, when the cause of action allegedly lastly accrued.
(ii) Suit is bad for non-joinder of Government of Nagaland.
(iii) That plaintiff has approached the court with unclean hands and has made suppression of material facts.
Objections on merits
4. The defendant made a narration of its own factual background, the summary of which is as under:-
(i) That on 20.05.2010, Assam Power Distribution Company Ltd, invited tenders for "IT Implementation Agency for goods and services for Department of Power, Nagaland ("DoPN").
(ii) Following the bidding, letter of award was issued to defendant on 22.11.2011 assigning them a contract for supply of goods and related services.
(iii) On 29.03.2012, DoPN entered in a agreement with defendant to provide the goods and related services and to remedy the defects and bring them in conformity.
NIRJA BHATIA (iv) In pursuance of clause 19.2 of Section 7 of Sub-contracting , Digitally signed by NIRJA general conditions of contract under request for proposal ("RFP") BHATIA Date: 2024.07.30 15:48:12 +0530 which form part of the agreement, defendant selected the plaintiff Intex Technologies Vs. Tata Consultancy Page 3 of 46 from empaneled list of DoPN.
(v) The defendant sub-contracted portion of work and availed the services of plaintiff for carrying out various activities which inter-alia included identifying requirements establishing strategies and plans, defining successful installation and implementation of components given in statement of work (SOW) under the scope of modules, GIS Solution Provider, Meter Data Acquisition Solution Provider ( MDAS), Customer Care Centre at the location of Department of Power, Nagaland.
(vi) The scope of work for purchase orders were agreed to be governed by "SOW" document for Nagaland RAPDRP Implementation" dated September 2012, signed between defendant and plaintiff and the Systems Requirement Specification Document ("SRS") issued by Power Finance Corporation, Utility department of Power, Nagaland.
(vii) That the purchase order provided specific of payment terms as per which the payment terms agreed between plaintiff and defendant were "Milestone based", "Back to Back" as per letter of award issued by "DoPN" to defendant as per which plaintiff is entitled to only such payment qua which work is done.
(viii) That plaintiff was to receive "Back to Back" payment and any deviation was permissible only with written permission/ approval from 'DoPN' and 'TCS Project Management'.
(ix) RFP, Section VIII stipulates special condition of contract GSS 14.1, wherein it is specified that release of payment will be NIRJA performance based, and that there will be reduction from BHATIA Digitally signed by NIRJA BHATIA payment for inferior deliverables. Hence, it was imperative that Date: 2024.07.30 15:48:19 +0530 work is properly completed by plaintiff so that defendant can ask Intex Technologies Vs. Tata Consultancy Page 4 of 46 for payment from DoPN.
(x) That plaintiff against 5 purchase orders raised through the months August and September 2012 has received payments against four purchase orders and amount of Rs. 4,39,81,227/- stands remitted.
(xi) That against Purchase orders reference no. 01HW14038/92, only two invoices i.e. invoice no. 1009104152 amounting to Rs. 11,80,000/- against Project Management Charges and other invoice no. 1009104162 amounting to Rs. 24,80,742/- for implementation of Meter Data Acquisition Solution ("MDAS") are withheld as plaintiff left the work incomplete and the work is not certified by Department of Power, Nagaland.
(xii) Defendant states that vide email dated 25.09.2017, defendant intimated to plaintiff that "MDAS" work submitted by the plaintiff was rejected by 'DoPN' which was direct result of plaintiff's unsatisfactory work in the project. The various emails including but not limited to those of dated 10.04.2017, 30.08.2017, 19.09.2017, 25.09.2017, 03.05.2018, 01.08.2018, 25.08.2018 were brought to the notice of the plaintiff. Despite receiving number of communications regarding their unsatisfactory work, plaintiff failed to take any corrective measures or respond to defendant's concern.
(xiii) It is averred that 'DoPN' also addressed various emails to plaintiff expressing grievance for non-completion of the works assigned under the arrangement entered into between plaintiff NIRJA BHATIA and defendant. However, plaintiff willfully failed and neglected to abide by the terms of arrangement. As a result of plaintiff's Digitally signed by NIRJA BHATIA Date: 2024.07.30 failure and neglect to abide by the terms of arrangement, 15:48:26 +0530 Intex Technologies Vs. Tata Consultancy Page 5 of 46 defendant was compelled to engage additional resources and incur substantial expanses to complete the work which was abandoned by the plaintiff.
(xiv) Defendant asserts that abandonment of work by plaintiff caused undue financial and operational burden to defendant and defendant resultantly suffered significant losses due to irregularity in service. Further, it sought plaintiff's cooperation to address the issues and countered it with DoPN causing the delay in payment. However, plaintiff failed to provide any assistance, clarification or redressal.
(xv) That as a result of plaintiff's sudden redaction from work, defendant did not receive full payment and a significant amount of Rs. 14,61,208/- was deducted by DoPN which was due to short supply of equipment for 4 towns and deficiency in services from plaintiff's end.
(xvi) That plaintiff's redaction caused breach of contract in violation of terms and conditions for which various emails including but not limited to email dated 30.08.2020 was addressed.
(xvii) Defendant expresses its shock and surprise on receipt of legal notice dated 16.09.2020 wherein plaintiff demanded payment for incomplete assignment/ job. Subsequently on 30.10.2020, defendant responded to legal notice dated 16.09.2020 by stating that the invoices were put on hold due to plaintiff's failure to do the job as per customers' acceptance and NIRJA non-receipt of customers payment. The plaintiff thereafter, sent a BHATIA Digitally signed rejoinder to reply of legal notice which was again replied by the by NIRJA BHATIA defendant on 19.12.2020. Defendant states that the suit is filed Date: 2024.07.30 15:48:34 +0530 Intex Technologies Vs. Tata Consultancy Page 6 of 46 with ulterior motives and it reserve its right to file a counter- claim.
(xviii) The assertions raised by plaintiff regarding defendant raising a false plea of incomplete work to avoid the payment is denied. The knowledge of work abdication with plaintiff is alleged. Defendant countered the statement of plaintiff raised in context of email dated 21.08.2018 and repeated the contents of the email in pleadings to state that email is self-explanatory which refutes the concocted story raised by the plaintiff. (xix) Rest of the assertions are denied. It is denied that any cause of action has accrued in favour of the plaintiff and or the plaintiff is entitled to any relief.
Gist of replication filed on behalf of plaintiff (5) Consequent to the receiving the Written Statement, plaintiff tendered its replication and disputed as below:
(i) that the suit is barred by limitation. It was claimed that the due date for 2 invoices were 07.05.2018 and 13.10.2018. It is averred that upon raising of the said invoices, defendant made part payment of Rs. 11,60,000/- and after adjustment an amount of Rs. 31,05,098/- is remaining due in running statement of account and accordingly the suit is well within limitation by the plaintiff.
Reliance is then placed upon Suo Motu Writ Petition (C) No. 3 of 2020.
NIRJA (ii) Plaintiff disputes the assertion of suit being bad for non- BHATIA joinder of parties and claims that the defendant is raising the Digitally signed by NIRJA BHATIA Date: 2024.07.30 15:48:41 +0530 Intex Technologies Vs. Tata Consultancy Page 7 of 46 aforementioned argument only with intention to delay the proceedings and avoid its liability.
(iii) Plaintiff claimed that the entire transaction has been completed between the parties to the suit and the defendant alone is liable to make the payment qua the invoices raised.
(iv) It is claimed that in the given nature of the transactions, DoPN is not a necessary party and hence there is no ground for its impleadment.
(v) While replying on merits, the contents of the Written Statement have been denied. It is denied that defendant is not liable to make the payments. It is further denied that the payment for entire work done by the plaintiff has been made. Plaintiff relied on legal notice dated 16.09.2020. It is averred that at the instance of the defendant the plaintiff raised invoice vide email dated 21.08.2018 as the defendant assured the release of remaining payment.
(vi) It is denied that the plaintiff left the site without intimation to defendant and without completing the work. It is alleged that defendant is making frivolous submissions to mislead the court. It is denied that any loss on account of the professional conduct of plaintiff has been caused.
(vii) Breach of contract at the instance of plaintiff is disputed. NIRJA Rest of the submissions have been denied and the statements BHATIA made in the plaint are reaffirmed.
Digitally signed by NIRJA BHATIA Date: 2024.07.30Notes of the proceedings 15:48:49 +0530
6. Present suit was received on 09.06.2022, the process was directed to be issued by my Ld. Predecessor, in the meanwhile Intex Technologies Vs. Tata Consultancy Page 8 of 46 the case was transferred. The Defendant was observed to have been duly served vide proceedings dated 29.03.2023 on which date, the opportunity to file Written Statement was also closed as no Written Statement was received despite service on 23.02.2023. Matter thus was listed for PE, however, on 10.05.2023, Sh. Asav Ranjan, Advocate for Defendant caused physical appearance and moved application seeking extension of time for filing Written Statement U/O VIII Rule 1 CPC, another application U/O 9 Rule 7 was moved which was allowed alongside plaintiff's application.
7. Another application was moved by plaintiff U/O 11 Rule 1 (5) CPC which was allowed vide order dated 08.12.2023 and direction was issued for admission/ denial of documents. The opportunity was given for admission/ denial of documents, the AR of the plaintiff participated in the exercise of admission/ denial of documents whereafter the issues as below were framed:-
(1) Whether plaintiff is entitled for the relief of recovery as prayed? OPP (2) Whether suit is barred by limitation? OPD (3) If issue number 2 is decided in favour of plaintiff, whether any rate of interest is payable, if yes, at what rate? OPP (4) Any other relief.
Evidence NIRJA 8. Matter then was listed for PE. At this stage, it is BHATIA Digitally signed conducive to take note of the evidence received on record. by NIRJA BHATIA Date: 2024.07.30 15:48:56 +0530 Intex Technologies Vs. Tata Consultancy Page 9 of 46 Plaintiff's Evidence
9. Plaintiff examined PW-1 Sh. Anil Kumar Sharma, who tendered his evidence by way of an affidavit and exhibited the following documents:-
1. Extract of a certified copy of board resolution dated 01.03.2024 is Ex.PW1/1.
2. Board resolution dated 26.05.2022 and 20.06.2023 of the previous AR is Ex.PW1/2 (colly).
3. The certified copy of the statement of account of the defendant maintained by the plaintiff company is Ex.PW1/3.
4. The printout of the email dated 21.08.2018 is Ex.PW1/4.
5. The copy of the legal notice dated 16.09.2020 is Ex.PW1/5.
6. The reply dated 31.10.2020 of legal notice is Ex.PW1/6.
7. The response dated 23.11.2020 sent by the plaintiff to reply dated 31.10.2020 is Ex.PW1/7.
8. The response dated 19.12.2020 sent by the defendant to the response dated 23.11.2020 is Ex.PW1/8.
9. Non-Starter report is Ex.PW1/9.
Crux of Cross-examination
10. PW-1 was cross-examined by Sh. Asav Ranjan, Ld. Counsel for defendant, during which he stated that he was not involved personally in the present transaction. He admitted that NIRJA plaintiff has not filed the agreement as it was untraceable, at BHATIA Digitally signed which stage, he claimed that agreement was not executed in by NIRJA BHATIA Date: 2024.07.30 15:49:10 +0530 favour of the plaintiff. Sh. Mahender C. Gupta who participated Intex Technologies Vs. Tata Consultancy Page 10 of 46 in transactions with defendant had left. He admitted purchase order dated 21.08.2012 which was then exhibited as Ex.PW1/D1. He admitted that the 'work in issue' was performed at Nagaland under the 'collaboration' of Government of Nagaland. He claimed that without seeing 'SOW' (Statement of Work) he cannot say the scope of work that the plaintiff had to perform for defendant. He could not verify that both invoices of plaintiff are for "MDAS" and CCC, without seeing their contents, at which stage, he was shown invoices dated 22.03.2018 and 29.08.2018 which upon his admission were exhibited as Ex.PW1/D2 and Ex.PW1/D3 respectively. Despite perusal of the aforementioned invoices Ex.PW1/D2 and Ex.PW1/D3, he could not say that they pertained to the work of "MDAS" and "CCC" and claimed that he has to make a conciliation only whereafter he can state the correct particulars. He was shown the contents of his examination affidavit, on which he admitted that claim in the suit is for 'MDAS' work. He was not aware that any AMC was granted to plaintiff and claimed that he has no technical knowledge. He was unaware that uptill when the team remained at the site. He was then shown "Scope of Work" (SOW) along with letter reference "Sub: Statement of work for Nagaland, R- APDRP Project" which document he admitted whereafter it was exhibited as Ex. PW1/D-4. His attention was drawn to pages 50 and 51 of Ex. PW1/D-5 towards the payment milestone. He was asked to elaborate regarding table mentioned at page No. 50 and NIRJA BHATIA 51 which read that "documents ought to have been submitted Digitally signed by NIRJA BHATIA with the invoice and may have been filed at appropriate stage for Date: 2024.07.30 15:49:18 +0530 completion" at which he volunteered that it is a technical Intex Technologies Vs. Tata Consultancy Page 11 of 46 document and he cannot say from the perusal of record whether it is filed or not. He denied the suggestion that no document is filed to show defendant's liability. It was denied that the plaintiff abandoned the site and did not complete the work. He relied upon email upon which he claimed invoices Ex. PW-1/D-2 and Ex. PW-1/D-3 were raised. He admitted that there is no document on record from Government of Nagaland to show confirmation of completion of work. At which stage, he volunteered that they were working with the defendant. The suggestion that the Government of Nagaland has been deliberately omitted from the array of parties was denied. He denied the knowledge that there was an agreement between the parties i.e. plaintiff and defendant that payment would fall due in favour of plaintiff only on receipts of amounts from Government of Nagaland.
11. In his further cross-examination on 13.03.2024, he affirmed that the work order received from the defendant was pertaining to supply of material and services and he had no personal knowledge of nature of services and supply. He claimed that the invoices were pertaining to purchase order and volunteered that he had no knowledge of technicalities regarding the contents of invoices as against which service and material they were raised. He denied that he did not read the invoices and was making the statement on assumption. At which he was asked to show the invoices and state against which purchase order the NIRJA invoices were raised, on which he pointed out to invoices Ex. BHATIA Digitally signed by NIRJA BHATIA PW-1/D-3 and stated that purchase order number is mentioned Date: 2024.07.30 15:49:25 +0530 against Point 'X'. He then showed Ex. PW-1/D-2 and stated that Intex Technologies Vs. Tata Consultancy Page 12 of 46 purchase order number is mentioned at Point 'X' on the above exhibit. Both the exhibits then were observed to be finding mention of purchase order number 01HW14038 of 92. Witness then claimed that invoices may have been filed along with plaint. He stated that he cannot admit or deny the suggestion that they were not filed with the claim. He could not state the date when the invoices were filed even after seeing the record. He then admitted that he was unable to state the date of filing of invoices as they were not filed with the plaint . He admitted that he has signed the plaint. He admitted Ex. PW-1/D-2 and Ex. PW-1/D-3 pertaining to the charges on account of " MDAS for KOHI". He then stated that he did not know the meaning of 'MDAS' as he had no technical knowledge. He was not knowing specifically the meaning of 'Kohi' though he denied the suggestion that he was not aware of transaction between the plaintiff and the defendant and the charges mentioned in the invoices Ex. PW-1/D-2 and Ex. PW-1/D-3. At which stage he was shown document Ex. PW- 1/D-4, and was asked the meaning of 'GIS' and 'CCC' which he could not narrate. He did not know that for the purposes of payment of infrastructure 'GIS' and 'CCC' was to happen before 'MDAS'. He then stated that the documents Ex. PW-1/4 payment for MDAS implementation was subject to acceptance from utility was a matter of record.
12. During cross-examination on 13.03.2024, he stated that plaintiff is claiming the payment against invoice Ex. PW-1/D-2 NIRJA and Ex. PW-1/D-3 which pertains to project management charges BHATIA Digitally signed and '161' - Implementation Charges for MDAS for KOHI, '162' by NIRJA BHATIA Date: 2024.07.30 15:49:33 +0530 - Implementation Charges for MDAS for WOKH, '163' -
Intex Technologies Vs. Tata Consultancy Page 13 of 46Implementation Charges for MDAS for TUEN, 164 - Implementation Charges for MDAS for ZUNH, 165 - Implementation Charges for MDAS for MOKO respectively", though he did not know what is the project pertaining to, when asked to state that GIC, CCC and infrastructure was pre-requisite for project management and MDAS, he claimed "it is a matter of record". At which stage, he was asked to show the record to which he claimed that "I cannot show from record where it is so stated". He was then confronted with page 46 of document Ex. PW-1/D-4 on which he admitted that the document stated for inclusion of installation, testing and report signing. At which stage, he volunteered that the plaintiff has received confirmation email for all above and have raised the invoices thereof. He admitted " we have not filed the confirmation email of the aforementioned jobs" and volunteer they are available with plaintiff and can be filed.
13. He admitted that the plaintiff had issued completion certificate for previous invoices in consultation with defendant. He admitted that the plaintiff has not placed completion certificate with respect to Ex. PW-1/D-2 and Ex. PW-1/D-3, and volunteered that he had filed the email. At which stage he was asked to show the email from the record. Upon which he pointed to email Ex. PW-1/4 on the basis of which invoices were made. He admitted that email Ex. PW-1/4 is sent from the side of defendant to plaintiff which finds mention "TCS will submit invoices to DoPN based on the sign of documents received from NIRJA BHATIA intex. TCS will release remaining intex MDAS payment as soon Digitally signed by NIRJA BHATIA Date: 2024.07.30 as DoPN will receive TCS payment on MDAS". He could not 15:49:40 +0530 Intex Technologies Vs. Tata Consultancy Page 14 of 46 find the email sent by plaintiff informing the completion of work regarding pending invoice Ex.PW1/D2 and Ex.PW1/D4. Defendant's Evidence
14. Defendant led its evidence through DW-1 Sh. Vivek Bhattacharjee who tendered his examination affidavit and exhibited the documents as below:-
1. PO Ref No : 01HW13903/92, dated 21.08.2012 is Exhibit PW1/D1
2. PO Ref No : 01HW13925/92, dated 22.08.2012 is Exhibit DW1/2.
3. PO Ref No : 01HW13926/92, dated 21.08.2012 is Exhibit DW1/3.
4. PO Ref No : 01HW13927/92, dated 21.08.2012 is Exhibit DW1/4.
5. PO Ref No : 01HW14038/92, dated 11.09.2012 is Exhibit DW1/5.
6. Work in project is Exhibit DW1/6.
7. Email dated 10.04.2017 is (Exhibit DW1/7)
8. Email dated 30.08.2017 is (Exhibit DW1/8).
9. Email dated 19.09.2017 is (Exhibit DW1/9)
10. Email dated 20.03.2018 is (Exhibit DW1/10)
11. Email dated 03.05.2018 is (Exhibit DW1/11).
12. Email dated 01.08.2018 is Ex.DW1/12.
13. Email dated 21.08.2018 is Ex.DW1/13.
14. Email dated 04.09.2018 is Ex.DW1/14.
NIRJA 15. Letter Ref. TCS/DOPN/RAPDRP/Nov 18.01 dated BHATIA 02.11.2018 is Ex.DW1/15.
Digitally signed by NIRJA BHATIA Date: 2024.07.30 15:49:46 +053016. Email dated 14.09.2018 is Ex.DW1/16.
Intex Technologies Vs. Tata Consultancy Page 15 of 4617. Email dated 23.07.2020 is Ex.DW1/17.
18. Email dated 30.08.2017 is Ex.DW1/18.
19. Email trail between plaintiff and defendant dated 08.01.2018 Ex.DW1/19.
20. Plaintiff has raised Invoice No. 1009104162 dated 29.08.2018 for an amount of INR 24,80,742.00 is Exhibit PW1/D3.
21. Invoice No. 1009104152 dated 22.03.2018 for an amount of INR 11,80,000 is Exhibit PW1/D2.
22. Legal notice dated 16.09.2020 is Exhibit DW1/20.
23. Reply to the legal notice on 30.10.2020 is Exhibit DW1/21.
24. Plaintiff filed rejoinder on 23.11.2020 is Exhibit DW1/22.
25. Defendant replied to the same on 19.12.2020 is Exhibit DW1/23.
Gist of cross-examination
15. In his cross-examination, he stated that he is associated with the defendant since 10.08.1995 and has the knowledge of the present case in official capacity. He had transacted with plaintiff personally at the relevant time in capacity as Project Manager of defendant. He admitted Ex.DW1/5 which was the purchase order for execution of work for 'MDAS', 'CCC' and 'SDO' and another scope was for project management activities. He defined 'CCC' as 'Customer Care Centre' and 'MDAS' as 'Meter Data Acquisition System'. He elaborated that in terms of Para 8 of his examination affidavit, plaintiff was the only NIRJA BHATIA subcontractor and the work was allocated to plaintiff against Digitally signed by NIRJA BHATIA Date: 2024.07.30 work order which was to be performed at site while the work was 15:49:57 +0530 Intex Technologies Vs. Tata Consultancy Page 16 of 46 done by TCS itself. Witness stressed that there was no other contractor. His attention was drawn to Para 2.16 of the Written Statement on which, he elaborated that due to unprofessional conduct of plaintiff, payments were received past June 2020 from the Government of Nagaland. He stated that defendant has released the payment for executed work to plaintiff. He was then asked in reference to Para 2.16 of the Written Statement that payment released by Government of Nagaland to defendant is pertaining to work 'executed' by plaintiff, to which he stated that whatever payment has been received against executed work from Government of Nagaland is released to plaintiff. He stated that no payment qua unexecuted work is released to plaintiff. He clarified that the defendant has received only the payment of work completed by TCS and the entire payment from Government of Nagaland is not received, for incompletion of work from plaintiff. He asserted that DoPN has not released all the payments related to work done by plaintiff. Plaintiff has been paid for the work completed by it. He stated that DoPN has not released the payment to the defendant as payment shall be released only when 'Customer Sign Off' would be provided by the plaintiff for completed work. He denied that he has given a wrong answer to the question that DoPN has released payment to defendant company only after completion of work as well as providing of 'Sign off' document to plaintiff company and claimed that he does not have the exact figure and cannot say the NIRJA exact amount received from DoPN for the official work. At BHATIA Digitally signed which stage, he was asked to check the record and after checking by NIRJA BHATIA Date: 2024.07.30 15:50:04 +0530 Intex Technologies Vs. Tata Consultancy Page 17 of 46 the record he stated that no such record is available which he may clarify from his official record.
16. He was then asked to refer email dated 21.08.2018, Ex. DW-1/19 and was asked if he could tell whether invoices were submitted to DoPN by the defendant company to which he replied that no invoices could be submitted to DoPN because the customer 'Sign off' qua completed work was not provided by the plaintiff. He admitted that the defendant has received the payment of Rs. 4,39,81,227/- until June 2020, however, denied that the payments were received for work done by plaintiff after June 2020 and volunteered that after June 2020, defendant had to appoint another vendor to complete the work, though no document to the said extent was filed.
Written Submissions
17. On closure of defendant's evidence, opportunity was extended to the parties to lead their respective arguments. Written arguments have been filed by both sides.
Gist of arguments as addressed on behalf of plaintiff
18. Plaintiff has extensively claimed recovery for amount of Rs. 31,05,058.82/- with interest @18% on the premise that DoPN (Department of Power Nagaland) had awarded a tender to defendant i.e. TCS for execution of certain work such as I.T. Implementation on 23.11.2011 for R-APDRP Project. Plaintiff claims that the privity of contract rested only between defendant NIRJA TCS and the Department of Power Nagaland and the terms were BHATIA Digitally signed by NIRJA BHATIA 'inter se' binding between them. It asserted that the defendant, Date: 2024.07.30 15:50:11 +0530 Intex Technologies Vs. Tata Consultancy Page 18 of 46 engaged plaintiff and gave a portion of work from the total project for completion in terms of 'SOW' i.e Statement of Work which is admitted by the defendant in its evidence. Since, plaintiff performed its obligations as envisaged under the 'Statement of work' dated September 2012, Ex.PW1/D4 as agreed between the parties (i.e. plaintiff and defendant). Defendant was liable to pay the amounts against submitted invoices. Defendant with dishonest intention did not make the payment against two invoices dated 22.03.2018 for Rs. 11,80,000/- Ex.PW1/D2 and 29.08.2018 for Rs. 24,80,742/- Ex.PW1/D3, despite these invoices being raised against Ex. DW1/5 purchase order dated 11.09.2012.
(25) Plaintiff claimed that the invoices Ex.PW1/D2 and Ex.PW1/D3 were raised for project management charge and implementation charge for 'MDAS' in cities Kohima, Vokha, Zunheboto, Mokokchung and Tuensang of Nagaland after confirmation from defendant. The implementation charges included number of modems installed as well as modems handed over to DoPN and 'Sign off' " received for respective 5 cities for 588 @ of Rs. 3,575/- per unit plus 18% GST which fact is shown from the email dated 08.08.2018 sent by plaintiff.
19. Plaintiff claims that plaintiff is not a party to payment transactions inter se defendant and DoPN and hence the payment obligations of defendant were absolute towards the plaintiff and independent of payment from end-user i.e. DoPN and the defendant is bound to make the payment raised against the NIRJA BHATIA completion of work.
Digitally signed by NIRJA BHATIA Date: 2024.07.30 15:50:17 +0530 Intex Technologies Vs. Tata Consultancy Page 19 of 4620. Plaintiff claims that it completed the entire project in terms of purchase order and 'SOW' whereafter raised the invoices from time to time only after confirmation from the defendant. However, the defendant despite admitting the liability vide email dated 21.08.2018 did not make the payment. Plaintiff then relied upon email exchange dated 21.08.2018, 16.08.2018, 08.08.2018 of parties.
21. Plaintiff claimed that defendant has not disputed invoices Ex.PW1/D2 and Ex.PW1/D3 which are filed by the defendant itself. Plaintiff claimed that the payment of these invoices has admittedly been received by defendant from DoPN which is admitted in Para 2.16 of Written Statement. When defendant stated, " due to unprofessional conduct of plaintiff, the defendant received payment from DoPN till June 2020".
22. It is claimed that DW-1 has tried to misled the court during cross-examination by avoiding to admit that the payment obligations of defendant qua plaintiff are absolute and direct. Despite admitting the outstanding invoice value of Rs. 31,05,058.82/-. Defendant has avoided to make the payment and has failed to produce on record, ledger / account statement maintained by defendant with respect to transactions between the defendant and DoPN. The prove that DoPN has not made the payment against the invoices raised by the plaintiff to defendant.
23. It is claimed that defendant has not filed on record any evidence to show deduction done by DoPN. The defendant has NIRJA also failed to provide any kind of evidence of damage on account BHATIA Digitally signed of completion of work by plaintiff. The plaintiff has deposited by NIRJA BHATIA Date: 2024.07.30 15:50:35 +0530 Intex Technologies Vs. Tata Consultancy Page 20 of 46 GST amount of Rs. 5,58,418/- on the invoices dated 22.03.2018 and 29.08.2018 and the defendant has also availed input of GST Credit of these two claimed under the suit.
24. It is claimed that the previous counsel of plaintiff inadvertently could not file the documents, however, since the defendant itself filed the documents Ex.PW1/D2 and Ex.PW1/D3 in order to avoid duplication of documents, the plaintiff did not file the same. The plaintiff then reproduced the entire list of Admission/ Denial of documents and claimed that the statement made by DW-1 is not reliable being contradictory, misleading and avoiding. It was stated that the admissions made cannot be retracted. The plaintiff then relied on Uttam Chand Kothari Vs. Gauri Shankar Jalan & Ors, Manu/GH/0209/2006, AIR 2007, GAU 20. Plaintiff also alleged that witness produced by defendant is not reliable. Reliance is further placed on Devchand Construction Vs. Union of India, 2022, SCC Online Ker 826 and Union of India Vs. Raman Iron Foundary (1974) 2 SCC 231 , Thangam and another Vs. Navamami Ammal, Civil Appeal No. 8935 of 2011, Gautam Sarup Vs. Leela Jetlly and Ors, Civil Appeal No. 1808 of 2008, DOD 07.03.2008, Sangram Singh P. Gaekwar and Ors Vs. Shanadevi P. Gaekwad ( Dead ) through Lrs & Ors [ (2005) 11 SCC 314).
25. It is averred that defendant has made all efforts to mislead the court and to avoid the payment even after receipt from DoPN and thus the defendant has unjustly enriched itself, the hard earned amounts of the plaintiff. The suit is stated to have been NIRJA BHATIA filed within limitation.
Digitally signed by NIRJA BHATIA Date: 2024.07.30 15:50:42 +0530 Intex Technologies Vs. Tata Consultancy Page 21 of 46Gist of arguments as addressed on behalf of defendant
26. Sh. Asav Ranjan, Counsel for the defendant also tendered his written submissions and raised the arguments that on 20.05.2010, the Assam Power Distribution Company Ltd, tendered IT implementation agency for certain goods and services and an agreement was executed on 29.03.2012. In pursuance of the right of sub-contracting, provided by the DoPN, on 28.10.2012, 'Statement of Work' between plaintiff and defendant was executed for services including but not limited to Project Management Charges, Implementation Charges for 'CCC' (Customer Care Centre) and 'MDAS' ( Meter Data Acquisition System ). Defendant asserts that in terms of clause 7 of 'SOW' Phase III of the 'Installation Testing and Report Sign- Off' included approval of deliverable by the utility by the end of the customer being 'DoPN' (Department of Power, Nagaland). Defendant claims that the contention of the plaintiff of them being unaware / disconnected from any agreement from 'DoPN' is not tenable in terms of clause 8 of 'SOW' (Ex. PW-1/D-4, Page 48 of the WS). Defendant claims that the plaintiff was aware that payment was subject to quality of the same being accepted and that the payment under 'SOW' was milestone based. Defendant claims that owing to failure on the part of the plaintiff in completing the milestones, the amounts were not released by 'DoPN' and consequently the defendant was constrained to 'descope' the work which fact is claimed to be evident from Ex. NIRJA DW-1/10, email dated 20.03.2018. Defendant claims that BHATIA plaintiff was obligated to send the 'Sign Off' documents as the Digitally signed by NIRJA BHATIA Date: 2024.07.30 15:50:49 +0530 same were not sent by the plaintiff, 'DoPN' refused to process Intex Technologies Vs. Tata Consultancy Page 22 of 46 the 'MDAS' invoices which is evident from email Ex.DW1/12, Ex. DW-1/23 dated 01.08.2018. Plaintiff failed to establish that the work assigned under the Purchase Orders was completed to degree of satisfaction as was requisite for payment in terms of 'SOW'. Defendant claims that plaintiff failed to produce documents even in the court in terms of provisions of Order 11 Rule 1CPC.
27. It is clarified by defendant that the defendant issued 5 purchase orders in August and September 2012 for provision of services of GIS Solution Provider, Meter Data Acquisition Solution Provider, Customer Care Centre at the location of DoPN. The plaintiff filed the suit on the basis of invoice no. 1009104152 and 1009104162 for raising the claim which clearly stated that under the clause of payment terms, the payment shall be 'back to back' on 'milestone basis'. Despite plaintiff having based its suit on the aforementioned invoices, plaintiff has failed to produce the 'Sign Off' documents even at any point of proceedings, despite seeking permission to file additional documents on 04.11.2023, the invoices were not filed. It is averred that plaintiff was obligated to produce every document in its custody or possession in which context defendant relied on provisions of Order 11 Rule 1 (5) CPC. Defendant alleges that plaintiff is guilty of suppression of material facts and documents and has relied upon the law in S.P. Chengalvaraya Naidu ( dead ) by L.Rs. Vs. Jagannath ( Dead) dead by L.Rs and Ors. 1994 1 SCC 1. Defendant further relied on the provisions of Section 102, NIRJA BHATIA Indian Evidence Act, to claim that burden of proof lies on the parties that would fail if not evidence is given by either side, Digitally signed by NIRJA BHATIA Date: 2024.07.30 15:50:56 +0530 Intex Technologies Vs. Tata Consultancy Page 23 of 46 stating that since the plaintiff did not file any relevant document, there was no proof of the fact that work is completed and burden of proof has not been discharged. In order to strengthen the above arguments claimed that no document except Legal Notice dated 16.09.2020 and replies has been produced by plaintiff. The plaintiff even when moved an application for additional documents did not attempt to introduce the invoices upon which it is relying. Instead, plaintiff introduced a ledger, the existent of truth of which has not been proven. Defendant claims that the plaintiff through the statement of Sh. Anil Kumar Sharma has miserably failed to even prove its contentions since the witness had no knowledge of the transaction that ensued between plaintiff and defendant which is evident from the cross- examination.
28. Defendant then asserted that suit is barred by Section 51 and 52 of Indian Contract Act and relied on email Ex. DW-1/13 dated 21.08.2018. Defendant asserted that Section 52 of Indian Contract Act mandates that if a contract refers a sequence for performance the same must specifically be done in that order and reproduce the provision of Section 52 on Written Submissions. In which breath it is asserted that plaintiff, was aware that payment to plaintiff being 'back to back basis' and was arsing from a sequence of performance, for which cross-examination of PW-1 as recorded below on 13.03.2024 was relied:-
It is correct the email Ex.PW1/4 is sent from the side NIRJA of the defendant to us. It is correct that as per BHATIA Ex.PW1/4, it is mentioned that TCS Will submit invoices to DoPN based on the sign of documents Digitally signed by NIRJA BHATIA Date: 2024.07.30 15:51:03 +0530 received from Intex. TCS will release remaining Intex Intex Technologies Vs. Tata Consultancy Page 24 of 46 MDAS payment as soon as DoPN will release TCS Payment of MDAS".
29. It is averred that plaintiff has failed to complete the entirety of work assigned vide purchase orders to satisfaction of DoPN and since as the initial steps of sequence enumerated have not been complied with, the obligation for remaining steps would not arise. Defendant claimed that plaintiff and defendant did not have one but two ongoing relationships, hence by imposing any liability on defendant, the plaintiff is required to fulfill its obligation first. Defendant then placed reliance on G+H Schallschutz Gmbh Vs. Bharat Heavy Electricals Ltd. 2020 SCC Online Del 19 and Sikkim Subba Associates Vs. State of Sikkim (2001), 5 SCC 629 to assert that the party failing to perform its obligation cannot assert a claim for performance on other.
30. Reliance is also placed on Videocon International Ltd. Vs. City Palace Electronics Pvt. Ltd. 190(2012) DLT 242 and Bishambhar Nath Agarwal Vs. Kishan Chand and Ors, 1989, SCC Online All 426 to claim that where a manner for performance is evident, it must be carried out in that manner and it is not open to concerned parties to chalk out their own manner of performing their own parts of contract.
31. Defendant agreed that that suit is bad for non-joinder of parties, since the plaintiff has failed to implead 'Department of power', 'DoPN' as a necessary party and the suit suffers from infirmity of Order 1 Rule 10 CPC. Reliance is made on NIRJA BHATIA Moreshwar Yadaorao Mahajan Vs. Vyankatesh Sitaram Bhedi Digitally signed by NIRJA BHATIA (D) thr Lrs and others 2022 SCC Online SC 1307 . It was also Date: 2024.07.30 15:51:15 +0530 claimed that being in breach of contract, plaintiff cannot seeks to Intex Technologies Vs. Tata Consultancy Page 25 of 46 enforce obligations of the other party and relied on Pramod Buildings & Developers (P) Ltd. Vs. Shanta Chopra (2011) 4SCC 741.
32. Defendant further argued that pleadings in replication cannot exceed the suit and relied on M/s Anant Construction Pvt. Ltd. Vs. Ram Niwas, 1994 SCC Online Del 615 , on the above submissions it was argued that plaintiff has failed to prove any entitlement and suit be dismissed.
33. I have heard the final arguments and have carefully perused the material and documents placed on record.
Discussion and findings
34. The gist of reasoning for arriving at the decision issue- wise is as below:
Issues No. 1 and 3:
35. The plaintiff has filed the suit pertaining to seeking recovery of Rs. 31,05,058.82 from the defendant. It is claimed that against the invoices Ex. PW-1/D-2 and Ex. PW-1/D-3, the plaintiff completed the work at the given site and after due performance of its part of obligation raised the invoices, however, the aforementioned invoices remained unpaid.
36. The plea in furtherance raised by the plaintiff exerts that defendant is avoiding to make the payment alleging falsely, incompletion of work which fact is contrary to its own admission NIRJA vide email dated 21.08.2018, Ex. PW-1/4. BHATIA Digitally signed 37. The plaintiff then asserts that after having made an by NIRJA BHATIA Date: 2024.07.30 15:51:21 +0530 admission of the performance of work and asking the plaintiff to Intex Technologies Vs. Tata Consultancy Page 26 of 46 submit the invoices, the defendant is now retracting and wriggling out of its part of performance of obligation, which fact had been put to the notice of defendant vide legal notice dated 16.09.2020 (Ex. PW-1/5), which had been replied vide reply dated 31.10.2020 (Ex. PW-1/6), and had further been countered by way of rejoinder dated 23.11.2020 (Ex. PW-1/7), which all facts are claimed to have been admitted by the defendant despite which payments have been avoided.
38. In the aforesaid assertions, in crux, lay the averrments that plaintiff was assigned a portion of work by way of statement of work (Ex. PW-1/D-4), which was sub-contracted to plaintiff by the defendant who in turn had received the contract from DoPN for laying out R-APDRP-Nagaland work.
39. It is claimed that the terms and conditions settled in terms of SOW between the plaintiff and defendant were capable of rendering only one contractual relation which was "direct" between the plaintiff and defendant and the defendant only was connected and concentrated towards any obligation with 'DoPN' with which the plaintiff had no concern or connection. It is averred that in the shadow of alleged dis-satisfaction of 'DoPN', the defendant cannot omit to perform its part of obligation by avoiding the due, which has already been admitted.
40. It be observed that while the parties are at liberty to raise pleas in form of pleadings and narrate the same in order to seek redressal, the proceedings requisite that the pleas are proved by NIRJA evidence.
BHATIA Digitally signed
41. While making the aforementioned assertions, as the by NIRJA BHATIA Date: 2024.07.30 15:51:29 +0530 plaintiff has approached the Court seeking a claim, it was under Intex Technologies Vs. Tata Consultancy Page 27 of 46
the obligation to establish the same as the duty has been cast upon the plaintiff by virtue of provisions of Section 101 and 102 of Evidence Act. For reference the provisions are enumerated as below:
101. Burden of proof.-- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Section 102.-- On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
42. The interpretation of the aforementioned provisions has been dealt with in numerous case laws and more prominently by Hon'ble Supreme Court in Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558, and has taken note as below:
"19. .......................................................... Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter- evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which NIRJA entitles him to a relief, the onus shifts to the defendant BHATIA to prove those circumstances, if any, which would Digitally signed by NIRJA BHATIA disentitle the plaintiff to the same."Date: 2024.07.30 15:51:37 +0530
43. In the light of the above interpretation, it is interesting to take note that plaintiff filed on record only nine documents out of Intex Technologies Vs. Tata Consultancy Page 28 of 46 which Ex. PW-1/1 and Ex. PW-1/2 were pertaining to the authority of PW-1. The strength to the pleas was proposed to be drawn by way of certified copy of statement of account Ex. PW- 1/3. However, at the threshold, it be observed that this certified copy of statement of account was finding no support either from the previous provisions of Section 65-B of Indian Evidence Act and/ or the provisions of Order 11 Rule 6(3) of recently amended CPC. While no certificate of Section 65-B was filed, it could be assumed that plaintiff may raise a plea of submission of affidavit under Order 11 Rule 6(3) CPC as applicable to these proceedings arising out of suit of commercial nature.
44. The provisions of Order 11 Rule 6(3) CPC are reproduced below for reference:
"(3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify-
(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
(c) the dates and time of preparation or storage or issuance or receipt of each such electronic record;
(d) the source of such electronic record and date and time when the electronic record was printed;
(e) in case of e-mail ids, details of ownership, custody and access to such e-mail ids;
(f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
NIRJA (g) deponent's knowledge of contents and correctness BHATIA of contents;
Digitally signed (h) whether the computer or computer resource used Date: 2024.07.30 to preparing or receiving or storing such document or by NIRJA BHATIA data was functioning properly or in case of 15:51:50 +0530 Intex Technologies Vs. Tata Consultancy Page 29 of 46 malfunction that such malfunction did not affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource."
45. The plaint in this case is filed on 09.06.2022, but is devoid of any affidavit under Order 11 Rule 6(3) CPC as required. The plaintiff who took leave of the Court in filing statement of account through application under Order 11 Rule 1(5) CPC cannot be assumed ignorant of requisites of proving the same having been inserted through Order 11 Rule 6(3), since statement of account is a print out of document drawn from computer. Moreover, vide order dated 08.12.2023, Ld. Predecessor cautioned the plaintiff and reminded qua documents specially invoices not filed with statement of account and observed:
"It is made clear that taking of the statement of account on record shall not construed as leave to the plaintiff to place on record the invoices or other documents mentioned in the statement which have already not been placed on record with the plaint. Defendant shall filed the affidavit of admission/denial for the statement of account with additional WS, if any, within thirty days from the date of this order with advance copy to the Ld. Counsel for the plaintiff."
46. Further, it is taken note that with application under Order 11 Rule 1(5) CPC, no permission for placing affidavit under Order 11 Rule 6(3) CPC or certificate under Section 65-B Evidence Act is sought. While disposing of application under Order 11 Rule 1(5) CPC which in its prayer reads as below:
"It is, therefore, most respectfully prayed that this Digitally signed by NIRJA NIRJA BHATIA BHATIA Date:
2024.07.30 15:52:03 application may kindly be allowed and running +0530 Intex Technologies Vs. Tata Consultancy Page 30 of 46 statement may kindly be taken on record and the matter may kindly be heard on its merit in the interest of justice. Such other orders as deemed fit and proper in the facts and circumstances of the case may kindly also be passed."
The above clearly shows no permission for affidavit under Order 11 Rule 6(3) nor under Section 65-B was asked nor was allowed.
47. It is noted that with the application, plaintiff filed one affidavit purportedly under Order 11 Rule 6(3) CPC and the heading reads "Affidavit of plaintiff under Order 11 Rule 6(3) of the Commercial Court, Commercial Division and Commercial Appellate Division of High Court Court's Act, 2015 and certificate on behalf of plaintiff under Section 65-B of Indian Evidence Act 1872". However, no certificate under Section 65-B was placed even at that stage or even subsequently at any stage of proceedings.
48. At this stage, at the cost of repetition, it is observed that no permission for placing affidavit under Order 11 Rule 6(3) CPC was either asked or provided, in which wake the contents of above though are not necessary to be observed, however, in order to discuss the scope of proof of Statement of Account Ex. PW- 1/3 above is being observed. It is requisite to note that even the language of the affidavit under Order 11 Rule 6(3) CPC is not capable of proof or to substantiate its contents since it does not NIRJA BHATIA fulfill the requisite of provisions as enumerated above. It must be Digitally signed by NIRJA BHATIA observed that above at this final stage would not qualify as mere Date: 2024.07.30 15:52:11 +0530 irregularity and for its want, statement of account cannot be Intex Technologies Vs. Tata Consultancy Page 31 of 46 accepted on record as envisaged through the intent of above provisions. For want of any affidavit and/ or certificate as envisaged above, the statement of account does not find any credence of a digital document as discussed above.
49. Plaintiff relied upon the print out of email dated 21.08.2018 and exhibited as Ex. PW-1/4. However, since the aforementioned email is an admitted document by the defendant it is deemed proved and the discussion pertaining to interpretation of its contents shall ensue in the paras to follow. Apart from the statement of account, the plaintiff has not filed any material to support any of its plea and has relied upon the defendant to bring the documentary evidence to support its own claim, which plea has been stated in the plaint itself in para 6 and is extracted below:
"It is pertinent to mention that the said agreement is not traceable and the defendant is put to produce a copy of the same. The plaintiff used to raise invoices to the defendant against completion of work and the defendant used to make the payments accordingly but the two invoices as mentioned in the next paragraph."
50. As observed, the invoices Ex. PW-1/D-2 and Ex. PW-1/D-3, on the basis of which the plaintiff has claimed the recovery, are also not filed by the plaintiff. Both the invoices have been brought by the defendant and have been confronted to plaintiff's witness PW-1 Sh. Anil Kumar. The aforementioned invoices, the claim on which is moved by the plaintiff in the first NIRJA BHATIA instance must have been filed by the plaintiff. Nonetheless, since Digitally signed by NIRJA BHATIA the invoices are not denied, they are deemed proved and the Date: 2024.07.30 15:52:18 +0530 Intex Technologies Vs. Tata Consultancy Page 32 of 46 discussion regarding the plaintiff's entitlement upon the aforementioned invoices shall now be recorded.
51. While making the submissions in detail and through the written submissions on record, the plaintiff admitted existence of an agreement between it and the defendant and affirmed that a "statement of work (SOW)" was entered between the parties. However, the plaintiff on its own failed to produce even the said "statement of work" dated September, 2012, even to disclose the scope of work agreed between the parties, which was later on exhibited by defendant during the process of confrontation of PW-1 and was exhibited as Ex. PW-1/D-4.
52. In the context of above, the status of "SOW" is not clearly stated by the plaintiff while resting its claim upon the said, which is evidenced from contradictions made by PW-1, who first admitted the 'SOW' Ex. PW-1/D-4, affirming its existence, denied the same later while volunteering " agreement was not executed in favour of plaintiff". The intention of above statement was not clarified till later even till the final submissions. While in the plaint the existence of an agreement is admitted (in para 6 of the plaint) and duty is shifted upon defendant for its production, later during process of examination, witness PW-1 denied any agreement between parties. Even if the later part of statement of PW-1 regarding non-existence of document is removed as mis- statement, it was obligated upon plaintiff to state clearly that "SOW" executed in September, 2012 was "The Agreement"
NIRJA referred to by plaintiff for alleging the breach. While plaintiff BHATIA Digitally signed by NIRJA BHATIA neither brought the agreement nor denied SOW Ex. PW-1/D-4 as Date: 2024.07.30 15:52:24 +0530 "The Agreement", the assertions of breach must have been Intex Technologies Vs. Tata Consultancy Page 33 of 46 specifically stated from its scope. The plaintiff cannot be permitted to play "hide and seek" by alleging the non-payment of invoices Ex. PW-1/D-2 and Ex. PW-1/D-3 from breach of contract without first stating the terms of contract specifically. It seems that plaintiff misinterpreted the provisions of law and while claiming under The Contract i.e. "SOW" did not attempt to produce the SOW, which conduct itself is a ground to raise doubts upon credence of claim raised.
53. It is further noted that while challenging breach, the plaintiff was duty bound to produce the agreement as it is held in Amar Nath Vs. Gian Chand, Civil Appeal No. 5797 of 2009 on 28.01.2022 which Hon'ble Supreme Court has authored that a party cannot claim breach of an agreement without placing the original agreement.
54. From the entire perusal of the evidence it is reflected that the plaintiff intended to rely upon defendant for proving its case which became evident further from the fact that without showing any material of having done its part of work at the site by way of either oral or documentary evidence the plaintiff relied on email of 21.08.2018 (Ex. PW-1/4) to claim it as a "conclusive proof of admission" of defendant qua plaintiff's performance of work at site. Though, the email dated 21.08.2018 also suffers from virus of provisions of Order 11 Rule 6(3) CPC, however, being admitted document it is read in evidence. While making observation of above nature, it is also worthwhile to observe that NIRJA while the plaintiff was quick to rely upon the email dated BHATIA Digitally signed 21.08.2018, claiming it to be a proof of admission, during the by NIRJA BHATIA Date: 2024.07.30 15:52:30 +0530 process of admission/denial of documents, denied certain emails, Intex Technologies Vs. Tata Consultancy Page 34 of 46 more specifically as mentioned below, on the ground that "aforementioned emails were not found in the records of plaintiff":
Email Dated Particulars of Events
10.04.2018 Email from Defendant informing Plaintiff of non-release of
MDAS owing to non-consideration of invoices by customers (Ex. DW-1/7) 30.08.2017 Email of defendant stating abandonment of CCC Building Premises and of theft (Ex. DW-1/8 & Ex. DW-1/18) 19.09.2017 Email by defendant informing plaintiff of its duty to follow up with DoPN for payment (Ex. DW-1/9) 25.09.2017 Email by Defendant informing plaintiff of non-acceptance of customers with MDAS deliverables and rejection of invoices (Ex. DW-1/6) 20.03.2018 Email by Defendant regarding de-scoping owing to failure on part of plaintiff to provide a concrete plan and resuming work (Ex. DW-1/10) 03.05.2018 Email by defendant requesting sending of sign off documents to customer (Ex. DW-1/11) 01.08.2018 Email by defendant regarding non payment of MDAS invoice by DoPN as sign off documents not provided by the plaintiff (Ex. DW-1/12 & Ex. DW-1/23) 04.09.2018 Email by defendant informing plainitff that payments for modems for Dimapur, Chumukedima and Kohima were released and non-release of INR 37 lacs for the 3 towns (Ex. DW-1/14) 14.09.2018 Email by defendant requesting plaintiff to release milestone invoices (Ex. DW-1/16)
55. It be observed that the plea on its face does not reveal much credence. While the plaintiff has brought out one particular email out of several "trail mails", there was no cause for it not finding the complete set of emails exchange of parties. The NIRJA BHATIA aforementioned rather shows a 'pick and choose' tendency on the Digitally signed by NIRJA part of plaintiff, as plaintiff is picking only those emails which BHATIA Date: 2024.07.30 15:52:37 +0530 suits its stand while denying the other emails without forwarding Intex Technologies Vs. Tata Consultancy Page 35 of 46 any explanation or clarity. Plaintiff itself is a firm engaged in the business of manufacturing, distribution and trading of various electronic and consumer durable products, Computer Hardware peripherals, as per its own plaint, in which circumstance retrieving of data of email received by it cannot be perceived as a task of difficulty and such conduct raises shadow on the credibility of statements made by the plaintiff. It is again needed to be observed that there has been no cross-examination on the aspects of the documents tendered by DW-1. The aforementioned emails being exhibited on record as part of "trail emails" neither the mode of proof nor the doubt towards their authenticity is raised during cross-examination. No question pertaining to its content has been put to the witness which suggest that the documents have been duly proved.
56. It is pertinent at this stage to take note that at the stage of arguments, a clarification was asked from Ld. Karamvir, Advocate of plaintiff to show the material which can suggest that plaintiff performed its part at which Ld. Counsel in his sincerity admitted that the record is devoid of any such material since the earlier counsel of plaintiff did not make any effort in such direction. In absence of record, hence there is no material to show that the plaintiff undertook any work at the site; the extent of work performed as per allocation and time / date of its completion etc. It is also not disclosed that on which date handing over of completed work to defendant was made. Record NIRJA BHATIA of milestones of work; any supervision of work by defendant is Digitally signed by NIRJA not revealed. During arguments, in view of assertions that BHATIA Date: 2024.07.30 15:52:44 +0530 plaintiff performed its part of obligations as per satisfacton of Intex Technologies Vs. Tata Consultancy Page 36 of 46 defendant, Ld. Sh. Karamvir was asked to at least state the last date on which plaintiff left the site, however, Ld. Counsel fell silent and admitted that no record of the above is available and he cannot state any such date.
57. While no documentary evidence qua performance/ completion of work was shown, plaintiff was well in its rights to produce oral evidence qua above. However, plaintiff could not bring even a single person from the site to depose and to show that the plaintiff performed all milestones of work during the tenure since the contract admittedly was pertaining to nine cities of Nagaland and was having multiple layers, pertaining to installation of hardware and software and its activation. In the absence of any material, the plaintiff could not show the merit of the invoices even if the receipt of invoices was admitted by the defendant.
58. The drawing of invoices, in itself was not sufficient to treat the invoices as proof of completion of work as the same must have been specifically demonstrated and proved. It is interesting to note that PW-1 Sh. Anil Kumar who deposed on behalf of plaintiff was not a technical hand. He admitted that he had no "personal knowledge of transaction and was not involved at any stage with the performance of contract. " He was unaware of the terms of "SOW" Ex. PW-1/D-4. and could not state specifically for what work the invoices were raised. He did not know the nature of milestones requisited to be attained by NIRJA plaintiff as part of performance of its obligation in terms of BHATIA Digitally signed by NIRJA BHATIA expectations of SOW. He could not narrate as what "MDAS"
Date: 2024.07.30 15:52:52 +0530"CCC" meant for which purpose the invoices were raised. He Intex Technologies Vs. Tata Consultancy Page 37 of 46 was not even aware about the scope of purchase orders/ 'SOW' dated 21.08.2012 Ex. PW-1/D-1 and while admitting that the work in issue was to be performed in Nagaland under the collaboration of Government of Nagaland, he was not aware whether any AMC was to be granted to plaintiff and admitted that he had no technical knowledge. The aforesaid was contradictory to the statement made in examination-in-chief in which he had claimed specifically that the suit amount is pertaining to 'MDAS' work.
59. While claiming during the arguments that the plaintiff was disconnected and unconcerned with the inter se transaction between defendant and DoPN which was direct and absolute only between plaintiff and DoPN while the payment obligations of defendant were absolute, direct and solely qua plaintiff against RAPDRP project, plaintiff admitted document Ex. PW-1/D-4 and stated :-
It is correct the email Ex.PW1/4 is sent from the side of the defendant to us. It is correct that as per Ex.PW1/4, it is mentioned that TCS Will submit invoices to DoPN based on the sign of documents received from Intex. TCS will release remaining Intex MDAS payment as soon as DoPN will release TCS Payment of MDAS".
60. He then was confronted with document Ex. PW-1/D-5 (Pages 50-51) wherein he admitted the payment milestones. On being asked to elaborate regarding table mentioned at pages 50- 51, "document ought to have been submitted with invoices may NIRJA BHATIA have been filed at the appropriate stage for completion of work "
though he volunteered "it is technical document" and could not Digitally signed by NIRJA BHATIA Date: 2024.07.30 15:52:59 +0530 Intex Technologies Vs. Tata Consultancy Page 38 of 46 state from perusal of record whether any "sign off" is filed or not. The interpretation of aforementioned only leads to conclusion that the plaintiff was aware that mere submission of invoices alone is not sufficient as the invoices must find support with documentary evidence to show completion of appropriate stages. There is no proof that the completion of the milestones requisited through Ex. PW-1/D-5 as envisaged under Ex. PW-1/D-4 was made. The witness tried to avoid a clear and cogent answer by keeping itself out of the transaction and claiming that the aforementioned details can be forwarded only by a technical person which is contrary to the status of witness who affirmed itself to be a person of the finance background and should have had the capacity to read the requisite behind invoices with support of terms of the contract. While disputing the statement of defendant that plaintiff's entitlement to receive payment would ensue only on bringing 'sign off' / ratification of quantum of work and record of satisfaction by DoPN and absence of any obligation towards third party. Witness admitted document Ex. PW-1/D-4 and Ex. PW-1/D-5, at which stage it was incumbent upon plaintiff to produce material to counter the contents of Ex. PW-1/D-4 and Ex. PW-1/D-5. In such circumstances, there is no evidence that plaintiff completed the work to the satisfaction of defendant and made it liable to release payment.
61. The plaintiff then relied its claim solely on email dated NIRJA BHATIA 21.08.2018 (Ex. PW-1/4), claiming it to be an admission on part Digitally signed of defendant, rendering it liable to pay the amount against by NIRJA BHATIA Date: 2024.07.30 15:53:06 +0530 invoices. The extract of the email has been produced at page 71 Intex Technologies Vs. Tata Consultancy Page 39 of 46 of written statement. The contents of the email is reproduced below for reference:
"Dear Madendra, Intex can raise invoices for the MDAS work as mentioned in mail below.
TCS will submit invoices to DoPN based on sign off document received from Intex. TCS will release remaining Intex MDAS payment as soon as DoPN will release TCS payment on MDAS. As requested in yesterday's call, pl share sign off documents for Dimapur and Kohima also for keeping records with me and follow up/ furnish to customer, if required. Regards Vibek Bhattacharya"
62. However, it be observed that the email is self-explanatory as it states "TCS will submit invoices to DoPN based on sign off documents received from Intex". The plaintiff at no stage has produced any material to show that it forwarded the invoices with 'sign off' documents and during arguments, Ld. Sh. Karamvir claimed that the receipt of 'sign off' certificate has been admitted by the defendant already in email dated 16.08.2018, the extract of which have been stated on page 71 of written statement and page 24 of the plaint. For reference the email is extracted below:
"Dear Vivek Da We have just reviewed the sheet and have revised the remarks as well as quantity based upon Suprio's queries. Pl call us if you are free now to discuss NIRJA further. Sign off certificates of all 5 cities have already BHATIA given.Digitally signed
Xx.............by NIRJA BHATIA Regards Date: 2024.07.30
15:53:12 +0530 Mahendra Gupta"Intex Technologies Vs. Tata Consultancy Page 40 of 46
63. It be observed that while stressing upon the contents of email dated 16.08.2018 (admitted by defendant) alleging that all 'sign off' documents certificates already been given, it should not have been an exercise for plaintiff to place a proof of submission of 'sign off' certificate of all five cities and/ or file a copy of those 'sign off' certificate alongwith plaint to show the denial of receipt of 'sign off' certificates towards completion of work by defendant was a false plea. The plaintiff did not file during the course of proceedings any copy of these five 'sign off' certificate either with the plaint and/ or subsequently during the evidence. Rather, reliance of email dated 16.08.2018 clearly laid that the fact of obtaining a 'sign off' certificate by the plaintiff was a pre- requisite and its submission alongwith the invoices was part of norm for the clearance of invoices and was part of obligation of plaintiff. While the plaintiff had been omitting to fulfill and denying to admit any such obligation and pleas raised in the Written Statement, subsequently could not avoid this fact from emerging through its own document. Had the plaintiff in receipt of the 'sign off' certificate as stated in email of 16.08.2018, it must not have been an exercise of encumberance upon plaintiff to place them on record.
64. The plea of plaintiff that email dated 21.08.2018 tantamounted to an admission and defendant cannot be permitted to retract therefrom under the strength of case law below are reliance which are not attracted to the facts and circumstances of NIRJA the present case. Rather the case law below does not even apply BHATIA Digitally signed to the submissions on record as Thangam and another Vs. by NIRJA Navamami Ammal, Civil Appear No. 8935 of 2011 ; is the law on BHATIA Date:
2024.07.30 15:53:18 +0530 Intex Technologies Vs. Tata Consultancy Page 41 of 46 aspect of damages and no such claim is stated by either side. The law in Gautam Sarup Vs. Leela Jetly and ors. Civil Appeal No. 1808 of 2008; records observations of Sangramsinh P. Gaekwar and ors Vs. Shantadevi P. Gaekwad (dead) through LRs and ors., (2005) 11 SCC 314, and none of the above is shown to apply through facts in hand. Mere asking the plaintiff to raise invoice would not qualify as admission since email dated 21.08.2018 does not fall within scope of Section 17/ 18 of Indian Evidence Act to qualify as an admission as none of the requisites of an Admission having been fulfilled through the said email nor are demonstrated through either evidence or otherwise during arguments.
65. The plea that by avoiding to file the Ledger and/ or proving the deductions having been made by DoPN, the defendant must be held liable for payment to plaintiff is again a mis-premised plea. In the same light, the plea that since the defendant has received the payment, it shall be directed to part with the same in favour fo the plaintiff. The aforementioned pleas are mere averrments and arguments and do not show any merit in the absence of proof that plaintiff completed and concluded the work as per the work order Ex. PW-1/D-1 in terms of SOW Ex. PW-1/D-4 and raised the invoices Ex. PW-1/D-2 and Ex. PW-1/D-3 as expected in terms of Ex. PW-1/D-5. The imputation upon defendant' witness being unreliable witness for having made contradictory, misleading pleas without showing an NIRJA BHATIA element of discredit would not automatically provide a scope for Digitally signed by NIRJA BHATIA application of case law as is proposed by plaintiff by placing Date: 2024.07.30 reliance upon Uttam Chand Kothari Vs. Gauri Shankar Jalan and 15:53:25 +0530 Intex Technologies Vs. Tata Consultancy Page 42 of 46 ors, MANU/GH/0209/2006, as the reliance on Paras 19, 23 and 24 is the discussion pertaining to amendment in Written Statement and show no application to facts.
66. The lack of merit in the plea raised by the plaintiff in order to discredit the witness is apparent from the submission that the defendant has released part payments against the invoices dated 22.03.2018, Ex. PW-1/D-2 amounting to Rs. 11,80,000/- which rather goes to show the bona fide of defendant for not holding on the payments due and only keeping the plaintiff at toes for payments against the amounts the work qua which is in question.
67. The premise of submissions that statement of witness DW-1 is to be discredited for the ground that initially it was claimed that the defendant had not submitted to 'DoPN' the invoices claimed by plaintiff, however, defendant was simultaneously following 'DoPN' for release of outstanding payments is also not stated. It is not stated through evidence that the defendant gained amounts from DoPN towards the work done by the plaintiff as mere raising of invoices without proof of work would not have entitled the plaintiff to claim any. Even otherwise, while the plaintiff raised the plea of imputation on DW-1 alleging that defendant had gained against the invoices of plaintiff, it was well within the rights and domain of plaintiff to summon an official of DoPN and call for record from DoPN Nagaland to prove that the defendant had benefited itself unjustly NIRJA against the work of plaintiff and has now rendered itself liable for BHATIA the claim of plaintiff. By avoiding to bring any witness from Digitally signed DoPN, the plaintiff cannot rests its pleas without any foundation by NIRJA BHATIA Date: 2024.07.30 15:53:31 +0530 Intex Technologies Vs. Tata Consultancy Page 43 of 46 of proof. It appears that under the aforementioned exercise, the plaintiff in written submissions intended to rely on the following cross-examination, alleging that DW-1 is not a reliable witness and has made a contrary and false statement:
Ques: Can you state from the reading of para 2.16 of written statement that payment released by the Government of Nagaland to the defendant is pertaining to the work executed by the plaintiff?
Ans: I say that whatever payment has been received against the executed work from the Government of Nagaland is released to the plaintiff. However, no payment towards unexecuted work is released to the plaintiff.
Court Ques: Can you clarify that you have received the entire payment against the contract work from the Government of Nagaland including of the work assigned to the plaintiff?
Ans: We have received only the payment of the work completed by the TCS. The entire payment from Government of Nagaland is not received for incompletion of work from plaintiff.
Ques: Whether the DoPN has released payment to defendant company for all the work executed/ completed by the plaintiff company?
Ans: DoPN has not released all the payments related to the work done by the plaintiff. Plaintiff has been paid for the work completed by it, however, for incomplete work DoPN has not made payment to the NIRJA defendant.
BHATIA Digitally signed by NIRJA BHATIA Ques: Whether DoPN has released payment to the Date: 2024.07.30 15:53:37 +0530 defendant company only after completion of the work by plaintiff company?Intex Technologies Vs. Tata Consultancy Page 44 of 46
Ans: No. DoPN releases payment to defendant only when customer sign off its provided by plaintiff for completed work.
Ques: Do you mean to say that DoPN has released the payment to the defendant company only after completion of the work as well as providing of sign off document to the plaintiff company?
Ans: Defendant has not received the entire payment from DoPN related to the order given by DoPN to defendant. The non-payment part relates to non- completion of work plaintiff.
It is incorrect to suggest that I have given wrong answer to the above question. I do not have the exact figure and I cannot say the exact amount received from the DoPN for the aforesaid work."
68. The intent of the statement drawn from the aforementioned cross-examination does not seem to favour any such conclusion as is intended to be drawn through written arguments. Having regard to the aforesaid, the case law filed by the plaintiff do not support its own submissions in which case the plaintiff failed to prove issues No. 1 and 3, framed qua its entitlement and interest as burden of proof was not discharged. At this stage, as plaintiff itself has failed to discharge the burden of proof no needful purpose would be served by discussing the case law filed by defendant since the judgment would loose its brevity. However, a note of the same is made in paras of arguments raised.
69. The issues hence are decided against plaintiff in preponderance of probabilities.
NIRJA BHATIA Digitally signed by NIRJA BHATIA Date: 2024.07.30 15:53:47 +0530 Intex Technologies Vs. Tata Consultancy Page 45 of 46 2. Issue no. 2
70. The onus to prove issue No. 2, "the suit being barred by limitation" was upon the defendant. The defendant did not lead any evidence. However, during the arguments submitted, that cause of action lastly arose in favour of plaintiff on 13.10.2018. It has been claimed that even law laid by Hon'ble Supreme Court in Suo Motu (supra) does not come to the rescue of plaintiff as the suit is beyond the period of limitation. However, the perusal of observation of Hon'ble Supreme Court in Suo Motu (supra) and subsequently, in M/s Arif Azim Co. Ltd. Vs. M/s Aptect Ltd., Arbitration Petition No. 29 of 2023, DOD 01.03.2024 the suit falls within the period claim of limitation. Moreover, the evidence in support of above issue has not been led. In circumstances, the no merit is shown in the plea of defendant. Issue rests in favour of plaintiff.
Result
71. On the basis of conclusion and discussion above, plaintiff has failed to prove its entitlement to relief. The suit hence, is dismissed without any orders to cost.
72. File be consigned to Record Room after completion of necessary formalities. Digitally signed by NIRJA NIRJA BHATIA BHATIA Date:
2024.07.30 15:53:56 +0530 Announced in open Court (Nirja Bhatia) today on 30th July, 2024 District Judge (Comm. Court-07) (Digital) South-East, Saket Court, New Delhi Intex Technologies Vs. Tata Consultancy Page 46 of 46