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(g) Plaintiff within the stipulated time period, Civil Suit No.: 366/08 delivered the requisite software along with source code, user documentation and technical design documentation but due to constant demand of changes required by the defendants, the entire work got extended from time to time for which the plaintiff is not liable ;

(h) The value of the contract was Rs.

3 Written statement filed by the defendants wherein it is objected that the suit of the plaintiff is barred by limitation. It is further objected that at no point of time the defendant acknowledged any liability qua the plaintiff and sought rejection of the plaintiff on this ground. It is further objected that the plaint has not been signed, verified and instituted by a duly authorized person. It is further objected that at no point of time, there was any outstanding dues against the defendant. It is admitted that defendant no. 2 through defendant no. 1 approached the plaintiff for development of software of Accounts Receivable Module to be accompanied with the software for Advertising Management System Software. It is admitted that the contract to the plaintiff was awarded on 05.3.2003 for a sum of Rs. 2,35,000/­. It is stated that the software was to be delivered in eight weeks time consisting of source code and executable etc. It is Civil Suit No.: 366/08 further stated that the time of delivery and quality of software were the essence of the contract. It is further stated that the work order dated 05.3.2003 contained that the development of the software was to be completed by the plaintiff and delivered to the defendants within eight weeks. It is further stated that the plaintiff miserably failed to execute the job within the stipulated period which resulted into heavy losses to the defendants. It is further denied that the plaintiff kept on writing to the defendants to seek clarifications. It is further stated that the development of the software was delayed by the plaintiff by twenty months which amounted to 1000% delay and in today's competitive business environment, cannot be acceptable by any standard. It is further stated that full and final payment has been made to the plaintiff. It is further stated that in view of the heavy losses suffered by the defendants due to sheer negligence of the plaintiff, the bill for Rs. 4,65,000/­ raised by the plaintiff, was finally settled at Rs. 3,63,000/­ and was paid through cheques. It is further stated that a sum of Rs. 6,300/­ was paid in excess. It is further stated that due to delay by the plaintiff, the defendants suffered great humiliation, goodwill and financial losses due to sheer negligence of the plaintiff. Rest of the contents of the plaint have been denied in the Civil Suit No.: 366/08 written statement by the defendants.

Moreover, during cross examination PW­1 has admitted that the time was the essence of the contract and the penal clause was there. He has further admitted that initial period as mentioned in Ex. PW1/2 i.e. work order was eight weeks. He has further admitted that the delivery means the delivery with the initial software specifications. He has further submitted that the initial specification was provided by the defendant within one week from the date of placing of Ex. PW1/2. He has further stated that he did not remember how many total specifications were received. He has further stated that second specification might have been received within three days from the date of first specification and sending of the specification was the regular feature in the present project. It is further stated that no specification received from the defendant has been placed on the court file by him. A suggestion was put to him that after receipt of specification within a week from the date of placement of order Ex. PW1/2, no other specification was sent by the defendant till the delivery of initial software supplied on 12.6.2003 and the said suggestion was denied. He has further admitted that Ex. PW1/D­1 which are unsigned e­mail documents issued by the defendant to the Civil Suit No.: 366/08 plaintiff wherein the defendant has made complaint to the plaintiff for rectification of the software. He has further admitted that the plaintiff has not specified in the plaint or in his evidence about the additional specification given by the defendant for the initial stage. He has further admitted that no user manual was given along with software on 12.6.2003. He has further stated that the user manual was supplied sometime in September 2003. A suggestion was put to this witness that the plaintiff has been terming in its terminology as additional work/specifications to the rectification sought by the defendant in the software and the said suggestion was denied. DW­1 in para­3 in his affidavit of evidence stated that delivery was to consist of source code, executable and documentation. In para­5, he has further stated that there was no specific demand by the defendants for modification, extension or enhancement in the software. DW­1 in cross examination has stated that at no point of time extra reports pertaining to the development were asked to be developed or prepared extra reports. He has further stated that the plaintiff developed software in parts which was in violation of contract. He has further stated that defendant had tested whatever software supplied by the plaintiff. He has further stated that it was not found Civil Suit No.: 366/08 OK as it has many defects and the defects were communicated to the plaintiff in writing by e­mail. He has further stated that the plaintiff thereafter delivered the revised version of the software developed by them subsequently. During further cross examination, a suggestion was given to DW­1 that the entire software with initial specification was delivered to the defendants on 07.7.2003 and the said suggestion was denied. In para­10 of the plaint, the plaintiff has stated that the plaintiff had completed the software in April, 2004 and on 23.6.2004, the plaintiff delivered the complete software to defendants along with source code, technical and user documentation. There is no mention about date of 07.7.2003 in the entire plaint. Thus, the plaintiff has given evidence beyond pleadings and that said evidence cannot be looked into. DW­1 has further stated that the defects with regard to the software, documentation and source code were never completely rectified. DW­1 has further stated that after delivery of software, the plaintiff started requesting the defendant to make the payment. He has further stated that all payments were linked to satisfactory deliverables on time and of right quality. DW­1 has further stated that defendant did not have any choice except to engage the plaintiff for development of canvasser module to work along with Civil Suit No.: 366/08 the A.R. module. He has further stated that this work was never completed by the plaintiff and therefore, could never be used by the customers. He has further stated that the defendant asked for rectification of defects with respect to canvasser module. He has further stated that the defects were never completely removed and the defected software was delivered by the plaintiff. DW­1 has further stated that he was not aware whether the Indian Express had asked the plaintiff to develop additional modules to the software from the plaintiff. However, no such work order raised by Indian Express has been brought on the record. The entire testimony of DW­1 is remain unimpeached and during cross examination satisfactorily explained that the plaintiff has failed to supply the software according to the satisfaction of the defendant and in accordance with the work order Ex. PW1/2. Moreover, it is the admission of the plaintiff that a bill of Rs. 4,65,000/­ raised by the plaintiff was finally settled at Rs. 3,63,000/­ as the said averment of the written statement has not been specifically denied by the plaintiff in the replication filed before this court. In view of the observations made herein­above, the plaintiff is not able to discharge the onus to prove this issue. Accordingly, this issue is decided against the plaintiff with the observations that the Civil Suit No.: 366/08 plaintiff is not entitled for the recovery of the suit amount. Moreover, issue no. 1 has already been decided by this court to the effect that the suit is time barred.