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Jharkhand High Court · body

2009 DIGILAW 827 (JHR)

Sachindra Electronics v. Bharat Coking Coal Ltd.

2009-05-25

M.Y.EQBAL

body2009
JUDGMENT : M.Y.Eqbal,J. This appeal is directed against the judgment and decree dated 31st August, 2005 passed by Sub-Judge Dhanbad in Money Suit No.30/94 whereby he has dismissed the suit filed by plaintiff/appellant for a decree for recovery of sum of Rs. 6,70,439.50. 2. Plaintiff’s case is that it is a registered partnership firm engaged in the business of electrical installation/erection commissioning etc. sometime in 1987. The defendants/respondent no.1 M/s Bharat Coking Coal Ltd. invited tender from a reputed electrical contractors for the work of installation of 2 x 5 MVA 33KV/33 KV Electric Sub-station at Amlabad Colliery. Plaintiff submitted its tender with Bhowra Area of BCCL and the tender was accepted by the defendants/respondents. Accordingly the work order dated 5.8.87 was issued by the General Manager, Bhowra Area of Defendant no.1 in favour of the plaintiff for execution of the work of commissioning of 33 KV/33 KV Sub-Station at Amlabad Colliery as per the terms and conditions contained in the said work order. It is further pleaded that as per the terms and conditions of the aforesaid contract, the defendant no.1 was to provide access to and possession of the site to the plaintiff within a reasonable time to start and execute the work and accordingly the plaintiff’s performance of the contractual job was dependent upon availability of site. It is alleged that the defendant miserably failed to afford the access and possession of the site which not only delayed the starting of the work but also its execution considerably. For this reason only despite issuance of work order on 5.8.87, the actual Memorandum of Agreement between the plaintiff and defendant no.1 for execution of the said work was executed on 8.5.88. Further case of the plaintiff is that as per terms of the contract, major civil works, like construction of Control Room building, construction of foundation for installation of transformer, digging of trenches for cable laying etc. were not within the scope of plaintiff’s work and it was stipulated that defendant-Company would get these civil works executed by some other agency/ contractor and hand over the same to the plaintiff at the proper time but the defendant failed miserably as construction/execution of various civil works was unduly delayed. were not within the scope of plaintiff’s work and it was stipulated that defendant-Company would get these civil works executed by some other agency/ contractor and hand over the same to the plaintiff at the proper time but the defendant failed miserably as construction/execution of various civil works was unduly delayed. Plaintiff’s further case is that at the time of starting of the work of the commissioning of Sub-station, the defendant-Company could not provide or even earmark total/exact space on which the outdoor installation like transformers, switches etc. were to be installed but the officials of the Project Committee of Amlabad Project requested the plaintiff to start the work but the execution of the job was interrupted on several occasions. 3. Further case of the plaintiff is that as per the terms of the contract, the defendant-Company was to pay 75% of item-wise unit rate in progressive running bills after erection and pre-commissioning test, but at the time of execution of the work of sub-station, the defendant-Company miserably failed to honour this payment term. As a matter of fact, against the 80% of the work done by the plaintiff, only three running bills amounting to Rs.3,32,070.00 were prepared/approved by the defendant-Company in a span of four years and out of this a sum of Rs.1,65,947.72 was paid to the plaintiff. The defendant-Company in lieu of paying the bills, shifted the entire liability for delay in execution of work on the plaintiff and threatened the plaintiff that liquidated damages would be deducted from plaintiff’s bills for delay in execution of work. Despite all odds, the plaintiff completed 80% of the work within 1989-90 on whichever space and whatever materials, drawing etc made available to the plaintiff by the defendant-Company and the remaining 20% work of the sub-station could have been completed within a month’s time if the defendants had handed over the control room building to the plaintiffs as the major portion of the balance 20% work was within this building. 4. Plaintiff’s further case is that defendant-Company did not want to take the responsibility of their own fault and tended to look for scapegoat to conceal their inefficiency, knowing well that the plaintiff was in no way liable for the default. 4. Plaintiff’s further case is that defendant-Company did not want to take the responsibility of their own fault and tended to look for scapegoat to conceal their inefficiency, knowing well that the plaintiff was in no way liable for the default. In reply to the correspondences, the plaintiff explained the circumstances for delaying the execution of work and despite assurance given by the defendant-Company to resume the work, but even then the contract of the plaintiff was unilaterally, arbitrarily and illegally terminated. Having come to know of this termination on 10.4.91, the plaintiff made serious protests against this termination before the higher officials of defendant No.1 and requested to reconsider his decision of termination and also allow the plaintiff to complete the remaining 20% job and the defendants got the work completed by their own workmen with the components which had already been supplied by the plaintiff. It is further stated that the plaintiff was willing to perform the part of the contract, but the defendants had miserably failed to perform their part and thus this amounts to breach of contract on the part of defendant No.1 and as such, the plaintiff is entitled to get payment of 80% works executed by it with interest @ 12% along with refund of earnest money. Though the plaintiff requested the defendants time and again to pay the outstanding bills, but the defendants never responded to the plaintiff’s demands and finally the plaintiff got one legal notice served on defendant No.2 through his lawyer, but the defendant did not care to reply even that notice. 5. Hence, plaintiff filed suit for recovery of Rs.6,70,439.50 6. Defendants contested the suit by filing written statement stating inter alia that the suit is not maintainable and is barred by limitation and principle of estoppel, waiver and acquiescence. The defendants’ case is that plaintiff was awarded work of installation and commissioning of 2 x 5 MVA Amlabad Substation at a total cost of Rs.8,30,130/-vide work order dated 7.8.87 with completion time of the work within 3 to 4 months. The said work order was issued on 16.5.1988. While shifting 3.3 K.V. Switch-gear to first floor Central Room by plaintiff, one of switch Gear Panel No.34 fell down and got damaged and the Dy. Chief Mining Engineer, Amlabad Project (Mines) intimated the plaintiff about the same and asked him for replacing damaged accessories. The Dy. The said work order was issued on 16.5.1988. While shifting 3.3 K.V. Switch-gear to first floor Central Room by plaintiff, one of switch Gear Panel No.34 fell down and got damaged and the Dy. Chief Mining Engineer, Amlabad Project (Mines) intimated the plaintiff about the same and asked him for replacing damaged accessories. The Dy. Chief Mining Engineer, Amlabad Project further intimated the plaintiff for handing over installation transported in D.G. Campus for erection of 33 KV/3.3 KV Substation. The defendants emphatically denied that plaintiff was not provided access to and possession of site as falsely alleged. According to the defendants, open space was provided to the plaintiff with boundary wall though construction of building work was in progress. Defendants’ further case is that the plaintiff requested the defendants for grant of extension of time for two months for completion of civil work of control room vide letters dated 6.1.88, 13.1.88 and 18.1.88 to enable to complete balance work of Central Room equipment by that time. It is also stated that time was extended to the plaintiff upto 30.6.88 and the payment terms and security deposit were amended. One more 3.3 KV Switch Gear Panel Sl. No.17 was damaged during handling by plaintiff and he was asked to repair and replace damaged parts immediately vide various letters, but without any effect. In lieu of the replacement, the plaintiff demanded payments, but the defendants requested the plaintiff to complete the work within extended time vide letter dated 21.11.88. However, the extended time expired on 30.6.88 and further time was extended upto two months. Plaintiff used defendants’ fitter machine for transformer and due to mishandling by plaintiff’s unskilled person, its 8 numbers heaters were damaged. Plaintiff was asked to repair the same immediately and depute skilled persons vide letters dated 5.9.88, 12.9.88 and 4.11.88. Plaintiff was intimated about some other defects and mishandling by letter dated 4.1.89 and 6.1.89. The plaintiff was asked to complete Sub-station building for all practical purposes, but without any effect. Plaintiff’s work was very slow and plaintiff virtually stopped work from 8.1.89 to 2.4.89 and the plaintiff did not start work inspite of several reminders. However, the 1st R/A bill of the plaintiff for R.1,33,940/-was received by the plaintiff in March, 1989. The plaintiff was asked to complete Sub-station building for all practical purposes, but without any effect. Plaintiff’s work was very slow and plaintiff virtually stopped work from 8.1.89 to 2.4.89 and the plaintiff did not start work inspite of several reminders. However, the 1st R/A bill of the plaintiff for R.1,33,940/-was received by the plaintiff in March, 1989. The plaintiff illegally raised dispute that 3.3 KV Switch cannot be erected due to wrong cable entry holds in civil work of control room and suspended work without any valid justification. Substation was designed by CMPDIL, Ranchi in which each and every details were mentioned and same has been received by the plaintiff on 19.8.87 itself technical details of which has been provided by the defendants on 22.6.89. In the review meeting with the Local and Headquarter officials of Amlabad, plaintiff’s progress was chalked out but instead of doing the work, the plaintiff tried to divert the issue by raising fabricated problems. However, in the meeting with the plaintiff, it was decided to release 2nd R/A bill for payment of Rs.1,18,324/-on 7.11.89. The plaintiff then started work for the commissioning of 220V/Battery Set and charger but it failed to commission it and let 110 cells of Battery Set after Acid pouring and ultimately defendants had to commission it immediately by the help of Engineers and Technicians of D.G. Station to save battery from damage. It is stated that the plaintiff has never shown any seriousness in completing the job rather it has been in the habit of delaying the matter either on one pretext or the other without any valid justification. Ultimately the plaintiff could not complete the job satisfactorily and its partner and authorised signatory Mr. P. Mukherjee by letter dated 4.1.90 declared himself unable to work at site due to his old age and empowered his partner P. Dutta to work at side. The defendants requested the plaintiff to complete the work through various letters to complete the work but without any effect. The plaintiff was given 15 days time as a final opportunity to complete the work by letter dated 5.2.90 by Dy. C. E. (E&M), D.G. Sub-station, Jalgora, but the plaintiff instead of doing the job, demanded adhoc payment for purchasing petty materials on the escalated price due to delay occurred, which was actually a fault on the part of the plaintiff. C. E. (E&M), D.G. Sub-station, Jalgora, but the plaintiff instead of doing the job, demanded adhoc payment for purchasing petty materials on the escalated price due to delay occurred, which was actually a fault on the part of the plaintiff. When the defendants asked the plaintiff to be present for joint measurement on 20.3.90, the plaintiff requested the defendants vide letters dated 17.3.90 and 20.3.90 that they are arranging for testing and commissioning work by the help of another agency, namely, M/s. Damodar Power Electricals, Maithon, which was quite untenable for the defendants and the G.M. Amlabad Project rejected the request. The defendants shown their resentment over the unsatisfactory progress of the work and accordingly a Committee was constituted by the G.M. on 19.4.90 and as per the said decision, the plaintiff was asked intimated by the General Manager, Amlabad Project Area by letter dated 23.5.90 to sign the measurements sheets, but the plaintiff evaded the same. Thereafter, the plaintiff was asked to attend joint discussion on 9.7.90 and 10.7.90 in which the plaintiff gave verbal assurance to start the work from 8.8.90 which fact is duly mentioned in letter dated 31.7.90 in which the plaintiff was asked to start work from 8.8.90 as assured and committed by them otherwise the Department will get the job done by other agencies at the risk and cost of the plaintiff. Even thereafter, the plaintiff was given several reminders to start the work, but they always evaded the same on various false allegations. The plaintiff could not give satisfactory progress of the work and deliberately delayed/stopped the work at several occasions and have deliberately failed to fulfill their contractual obligation even after giving more than sufficient opportunity to start and complete the work. Ultimately the plaintiff was served final notice dated 7.12.90 asking them to reply by 15.12.90 about their intention to re-start and complete the sub-station work otherwise the work will be done by the other agencies at the plaintiff’s cost and risk including imposition of penalty but even then the plaintiff did not re-start the work nor sent any reply which clearly go to show that the plaintiff was not at all interested to complete the job. Finally, the General Manager, Amlabad Project served letter dated 1.4.91 terminating the contract. Finally, the General Manager, Amlabad Project served letter dated 1.4.91 terminating the contract. It is further stated that the plaintiff has already received all his due payment and now nothing remains to be paid to the plaintiff at all regarding the work order and as such the entire claim of the plaintiff in the suit against the defendants is uncalled for, baseless and without any legal foundation and the plaintiff is not at all entitled to get relief of any of the amounts as has been claimed in the suit. 7. The Court below framed the following issues for consideration and decision: 1) Is the suit maintainable? 2) Is the suit barred by the provision of estoppel, waiver and acquiescence? 3) Is the suit barred by the provisions of Limitation? 4) Did the plaintiff failed to perform the complete work of the contract awarded to them by work order No.XI 187/14907-13 dated 5.8.87 owing to various defaults of the defendants and their officials? 5) Did the plaintiff complete 80% of the above job and the same was stopped at the instance of the defendants? 6) Did the defendants terminate the contract illegally or arbitrarily? 7) To which relief the plaintiff is entitled to? 8. While deciding issue Nos.(4) and (5) together, the trial Court after discussing the evidence adduced by the parties came to the conclusion that the plaintiff failed to complete work awarded to them and as a matter of fact, the plaintiff has not completed 80% of the work as claimed by it. The Court further came to the conclusion that the defendants-respondents have not terminated the contract illegally or arbitrarily. Consequently, the suit was dismissed. 9. Mr. Rohit Roy, learned counsel appearing for the appellant, assailed the impugned judgment as being contrary to law, facts and evidence on record. Learned counsel submitted that the Court below has come to an erroneous finding on issue Nos. (4) and (5) and wrongly dismissed the suit. Learned counsel submitted that the Court below has misdirected itself in law in not relying upon the review report of the Reviewing Committee (Ext.3) in which the Department have admitted that the plaintiff completed the work upto 80%. (4) and (5) and wrongly dismissed the suit. Learned counsel submitted that the Court below has misdirected itself in law in not relying upon the review report of the Reviewing Committee (Ext.3) in which the Department have admitted that the plaintiff completed the work upto 80%. Learned counsel submitted that the Court below has further misdirected itself in relying upon Ext.3/A which was marked exhibit on behalf of the plaintiff, but later on, on the prayer of the plaintiff, the order, marking exhibit, was recalled by the Court. According to the learned counsel, the Court below has not correctly appreciated the facts of the plaintiff’s case and the evidence adduced in support thereof and has come to an erroneous finding on issue Nos.(4) and (5). 10. As noticed above, the plaintiff put heavy reliance on the review report, a copy of which was filed by the plaintiff and marked Ext.3, in order to prove their case that 80% of the work order was executed. The Court below after analyzing the evidence of the sole material witness PW.1 who stated in the cross examination that measurement of all the works have been endorsed jointly in the measurement book and the recital of only 30% work shown in the measurement book, came to the conclusion that this witness admitted the execution of the work upto 30%. Paragraph 12 of the finding recorded by the trial is quoted herein below: - “The plaintiff has exhibited carbon copy of a of advocate’s notice as Ext.1 and registration receipt as Ext.2. From perusal of Ext.1, it appears that the plaintiff ahs claimed outstanding bill amounting to Rs. 5 lakhs (approximately) and 12% interest thereon from 1.4.91 till the date of actual payment which claimed amount and date is beyond the schedule A of the plaint and schedule A of the plaint is not happily worded in this suit because the plaintiff has not been able to adduce any evidence of extra or deviation work in support of the schedule A of the plaint. From perusal of order dated 30.1.99 it appears that Ext.3 and Ext/3a documents have been marked on admission out of which Ext.3 is review report and Ext.3/a which has been deleted vide order dated 5.2.99 and complied vide order dated 25.11.99 is the letter No.BCCL/90AMBD/GM/(Project)/P.S./--sub-STN/984 dated 24.12.90. From perusal of order dated 30.1.99 it appears that Ext.3 and Ext/3a documents have been marked on admission out of which Ext.3 is review report and Ext.3/a which has been deleted vide order dated 5.2.99 and complied vide order dated 25.11.99 is the letter No.BCCL/90AMBD/GM/(Project)/P.S./--sub-STN/984 dated 24.12.90. Although Ext.3/a has been deleted and cannot be counted in evidence but P.W.1 in para-32 has been cross-examined in connection with that letter (Ext.3/a) by the defendant and the P.W.1 has stated that I do not know that Sri P.K. Roy, General Manager, Amlabad Project has informed to T.P. Basu on 24.12.90 by writing a letter and clarified that aforesaid matters. It is noted here that the aforesaid matters as per para-32 is regarding the 30% work done by the plaintiff not 80% as per the case of the plaintiff and in the light of aforesaid cross-examination of P.W.1 it appears from the Ext.3/a that 80% of total electrical job (as per review report Ext.3), i.e., from D.V.C. end to Pit-Top end including civil construction of buildings has been completed whereas sub-station (job of electrical installation) part is only 30% completed. Since plaintiff has deleted Ext.3/a vide order dated 5.2.99 got no value in this case but such deletion indicate that the plaintiff has not come with clean hand in this suit alongwith relief. From perusal of statement as per evidence of P.W.1 in para-3, 4, 6 and 9, it appears that the plaintiff has sent so many letters to the B.C.C.L. defendant regarding site and handing over the control room but the plaintiff has not exhibited any letter in this suit and it also apparent from Ext.A of the defendant that the contract of the plaintiff has been terminated w.e.f. 1.4.91 although in the light of Ext.3 the learned counsel for the plaintiff has submitted that the defendant has stopped the work of the plaintiff and plaintiff has completed 80% of the work but from perusal of entire exhibits of the defendants it appears that the plaintiff failed to perform the complete work of the contract awarded to them by the work order (Ext.4) willfully not owing to various defaults of the defendants and their officials and the plaintiff has not completed 80% of the job and same was not stopped at the instance of defendant. Hence, these issues are, hereby, decided against the plaintiff.” 11. Hence, these issues are, hereby, decided against the plaintiff.” 11. From perusal of the aforesaid finding recorded by the Court below, it appears that the Court has wrongly held that Ext.3/a cannot be looked into because that document was deleted from the evidence at the instance of the plaintiff. It is well settled that documents filed by one party can be used by other party, although the party who files the documents has not relied on it. The Court is competent to consider Ext.3/a which shows that only 30% work was completed by the plaintiff. 12. In the case of Lakhan Sao V. Dharamu Chaudhary [ (1991) 3 S.C.C. 331 ], the Supreme Court observed: - “5. The findings are essentially findings of fact. If, however, the appellants succeed in showing that in recording the findings of fact, the court had proceeded on a wrong conception of law as to onus, the correctness of the findings has necessarily to be examined. The only point that has been stressed before us is that lower appellate court has wrongly proceeded on the basis that onus shifted to the defendant to prove the passing of consideration and that the evidence did not establish that fact. It was maintained that the onus did not shift as the burden was entirely on the plaintiff to prove the fact that document was inoperative and no consideration did pass thereunder. We have pointed out earlier that the High Court has set aside the earlier decree pointing out the error committed by the lower appellate court. This observation made by the High Court has been kept in mind by the Additional District Judge in disposing of the appeal thereafter. The learned Judge has considered the question of burden on the plaintiff to establish that there had been no consideration. In examining the question whether the plaintiff had succeeded in proving the negative fact it was open to the court to consider the entire evidence on record when both the parties have tendered evidence and no part of the evidence could be left out. On a consideration of the whole evidence, the court has concluded that there had passed consideration. This finding cannot, therefore, be said to be vitiated. 6. On a consideration of the whole evidence, the court has concluded that there had passed consideration. This finding cannot, therefore, be said to be vitiated. 6. It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff but after having gone into evidence, he cannot ask the court not to look at and act on it. The question of burden of proof at the end of case when both parties have tendered evidence is not of any great importance and the court has to come to a decision on a consideration of all materials.” 13. Be that as it may, the other finding recorded by the Court below in the aforementioned paragraph does not suffer from any illegality or perversity. The plaintiff-appellant failed to prove by adducing reliable evidence that the contract was wrongly terminated by the respondents. Hence, the Court below rightly dismissed the suit holding that the plaintiff-appellant failed to prove their case. 14. For the reasons aforesaid, I do not find any merit in this appeal, which is, accordingly, dismissed.