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2025 DIGILAW 1063 (KAR)

Gammon India Limited v. Aishwarya Earth Movers

2025-11-10

ANU SIVARAMAN, VIJAYKUMAR A.PATIL

body2025
JUDGMENT : ANU SIVARAMAN, J. This Commercial Appeal is filed aggrieved by the judgment dated 06.01.2022 passed by the I Additional District Judge and Commercial Court, D.K., Mangaluru ('Commercial Court' for short) in Commercial Original Suit No.298/2020. 2. We have heard Shri. Prakash B.N, learned counsel appearing for the appellants and Shri. G. Balakrishna Shastry, learned counsel appearing for the respondent. 3. The suit was filed seeking a decree for payment of an amount of Rs.94,39,707.75/- towards unpaid bills for Work Done, Security Deposit, Administrative Expenses and Royalty along with interest from the date of demand as against the appellant. 4. The plaintiff/respondent herein raised the contention that the plaintiff was granted a contract by the defendants for the construction of five new bridges on the Gundya Subramanya Road. After the work was satisfactorily completed, the plaintiff had sought payments from the defendants, where upon the defendants had specifically informed that the amounts due to the plaintiff would be paid as and when payments were made to the defendants by the Karnataka Road Development Corporation Limited ('KRDCL' for short). It is submitted that when the amounts were not paid inspite of repeated requests, a lawyers notice was issued on 17.03.2016, but no reply was received to the same. The suit was thereafter filed on 06.03.2017. 5. The written statement was filed by the appellants herein contending that even going by the plaint averments, the work order was of the year 2006 and the last payment made to the plaintiff was in the year 2012. It was therefore contended that the claim was barred by limitation. 6. The Commercial Court framed the following issues:- "1. Whether the plaintiff proves that, the defendants are liable to pay Rs.94,34,707.75/- along with interest at the rate of 18% p.a. from 11.12.2006 to till the complete payment? 2. Whether the plaintiff proves that, the defendants failed to pay the dues inspite of demand? 3. Whether this court is having jurisdiction? 4. Whether the suit is in time?" 7. Issues (1), (2) and (4) were taken together and it was found that the defendants had clearly sent mails acknowledging the debt and promising to pay the amounts due once the KRDCL made the payments to the defendants. Though the plaint was initially filed for recovery of Rs.79,90,649.75/-, the plaint was amended on 02.02.2021 and suit claim was raised to Rs.94,39,707.75/-. 8. Though the plaint was initially filed for recovery of Rs.79,90,649.75/-, the plaint was amended on 02.02.2021 and suit claim was raised to Rs.94,39,707.75/-. 8. Considering the oral and documentary evidence on record, the Commercial Court found that Ex.P1 - Manual Work Order issued on 18.12.2006, Ex.P2 - Work Order dated 11.12.2006, the confirmation letters as well as measurement books and payment details had also been produced by the plaintiff. Ex.P8 - Confirmation Letter dated 05.12.2013 recorded a balance amount of Rs.46,76,198/- while Exs.P9 and P10 are Confirmation Letters regarding further amounts. The Commercial Court found that Ex.P11-email of defendant No.1 acknowledged the debt and requested the plaintiff to come for a discussion in its office with relevant records in support of its claim on 31.03.2016 or in the first week of April 2016. Further, it was found that the bills in support of the plaint claim had been duly produced by the plaintiff. The oral evidence was also given by PW.1 in support of the plaint contentions. With regard to the plea of limitation, it was found that a clear admission in Ex.P11 email which was fully extracted in the judgment under appeal, the plea could not be sustained. 9. On these findings, it was found that the suit was in time and the suit was decreed as follows:- "1. That, the suit of the plaintiff firm is partly decreed with cost. 2. That, the Defendants are jointly and severally liable to of pay sum Rs.94,39,707.75/- and to pay interest at the rate of 12% p.a. on the principle amount of Rs.79,90,649.75/- from the date of filing of the suit i.e., 06.03.2017 and to pay interest at the rate of 12% p.a. on the remaining amount of Rs.14,44,058/- from the date of amendment of the plaint i.e., 08.02.2021 till its realization. 3. That, the defendant do pay sum of Rs.2,66,634/- (Rupees Two lakhs sixty six thousand six hundred and thirty four only) towards the cost incurred in this suit." 10. The learned counsel for the appellants submits that there was no clear acknowledgment of debt in the email as found by the Commercial Court. It is contended that no amount has been stated in Ex.P11 and even if there is such acknowledgment, it can only be for the amount of Rs.79,90,649.75/- which was the claim in the legal notice. The learned counsel for the appellants submits that there was no clear acknowledgment of debt in the email as found by the Commercial Court. It is contended that no amount has been stated in Ex.P11 and even if there is such acknowledgment, it can only be for the amount of Rs.79,90,649.75/- which was the claim in the legal notice. It is further contended that the trial Court did not consider the effect of the email in the proper perspective. 11. The learned counsel appearing for the appellants would rely on the following decisions:- Airen and Associates v. Sanmar Engineering Services Limited , reported in 2025 SCC OnLine SC 1562 Syndicate Bank v. R. Veeranna and Others , reported in (2003) 2 SCC 15 ; and CLP India Private Limited v. Gujarat Urja Vikas Nigam Limited and Another , reported in (2020) 5 SCC 185 12. The learned counsel appearing for the respondent, would, on the other hand, contend that Ex.P11 is a clear acknowledgment of debt. It is submitted that no evidence whatsoever was adduced by the appellants, while the plaintiff had produced all relevant documents including the Completion Certificates, the bills countersigned by the KRDCL as well as acknowledgements issued from time to time by the plaintiff. It is submitted that even in the replies given by the defendants, there was no dispute of the liability. Further, in view of the fact that no evidence whatsoever was adduced by the respondent; the Commercial Court was perfectly justified in having accepted the plaint averments and the contentions of the respondent herein. 13. The learned counsel appearing for the respondent would rely on the decisions:- Vidhyadhar v. Manikrao and Another, reported in (1999) 3 SCC 573 Food Corporation of India v. Assam State Cooperative Marketing and Consumer Federation Limited and Others reported in (2004) 12 SCC 360 ; and A.E.G. Carapiet v. A.Y. Derderia reported in AIR 1961 Calcutta 359. 14. We have considered the contentions advanced. It is an admitted fact that the plaintiff/respondent had been awarded the contract by the defendants/appellants. The documents to show the award of the contract, the confirmation letters, work orders, completion certificates, measurement books and countersigned bills have all been produced by the plaintiff. No evidence was adduced by the appellants. 14. We have considered the contentions advanced. It is an admitted fact that the plaintiff/respondent had been awarded the contract by the defendants/appellants. The documents to show the award of the contract, the confirmation letters, work orders, completion certificates, measurement books and countersigned bills have all been produced by the plaintiff. No evidence was adduced by the appellants. Ex.P11, which are the disputed emails, read as follows:- "e-mail dated: 29/03/2016 Your Outstanding Payments Shettigar Madhusoodana Dear Shri Ramesh Bhat This has reference to your legal Notice from your advocate Shri Rammohan Rao and subsequent to your telecom with our Project I/C Mr. Somasunder P on 28/3/2016. In connection with your outstanding due payments you are requested to come for a discussion to our office with relevant records in support of your claims on 31 st of March 2016 or in the 1 st week of April 2016 at the following address:- Gammon India Ltd Brigade Towers 12th Floor Brigade Road Bengaluru-560025 Please confirm your visit in advance With best regards S M Shettigar Dy. Manager Accounts e-mail dated: 30/03/2016 Ramesh Bhat Dear Sri. S.M. Shettigar With regard to your mail dated 29.03.2016 you are requested to consult your Mysore Office incharge Engineer and Accounts Section, Karnataka, Bridges. If you not able to get the details please inform us, we will provide the relevant records in support of our claim with the reference to the legal notice please contact the Proprietor M/s. Aishwarya Earth Movers Pandith Deena Dayal Upadhyaya Road, Kamala, Puttur 574 201, DK District Mail Address being raghuramu@gmail.com Hoping immediate settlement of long pending dues. Thanking you, With regards Ramesha U. e-mail dated: 30/03/2016 Shettigar Madhusoodana Dear Shri Raghuram The mail sent to Mr. Ramesh Bhat is forwarded here with as informed by him. This is for your information further needful action please. Regards. S M Shettigar e-mail dated: 31/03/2016 Shettighar Madhusoodana Dear Shri. Ramesh Bhat / Raghuram Some of your dues claimed in the legal notice are yet to be certified by KRDCL. Our Final bill of Phase III of Package IV is under KRDCL certification. It may take about three months time for relaization of the same Subject to the certification on the same by KRDCL and verification from our Audit Department your dues including balance security deposit shall be cleared from our end. Thanks & regards SM Shettigar." 15. Our Final bill of Phase III of Package IV is under KRDCL certification. It may take about three months time for relaization of the same Subject to the certification on the same by KRDCL and verification from our Audit Department your dues including balance security deposit shall be cleared from our end. Thanks & regards SM Shettigar." 15. Section 18 of the Limitation Act, 1963 reads as follows:- "18. Effect of acknowledgement in writing. (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received." 16. It is clear from the evidence on record that Ex.P3 - Completion Certificate was duly proved by the plaintiff before the Commercial Court. Ex.P4 was a letter of the plaintiff, which was duly countersigned by the KRDCL on 22.11.2007. By Ex.P10 - a letter of the appellant dated 19.11.2010 admitted the liability to pay amounts to the plaintiff. However, without specifying the amount. Ex.P5 is a Measurement Book, signed by the appellant on 31.03.2013. Exs.P8 and P9 are also Payment Confirmation Letters, which are duly acknowledged on 05.12.2013. In Ex.P11 replies as well, the appellant has not disputed the liability and has clearly stated that the amounts can be paid only after the KRDCL makes the payment to them. 17. The judgments relied on by the learned counsel appearing for the appellants in Food Corporation of India 's case (supra), that a qualified acknowledgement of liability would extend the limitation only insofar as the specific figure acknowledged is concerned in CLP India Private Limited 's case (supra). It has been held that the repeated letters or exchange of communications do not extend the period of limitation provided by law. 18. It has been held that the repeated letters or exchange of communications do not extend the period of limitation provided by law. 18. In Vidhyadhar 's case (supra), the Apex Court has clearly held that where a party to the suit does not appear in the witness-box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. 19. In Food Corporation of India 's case (supra), it was held that the documents being a part of chain of correspondence can be said to be proved when the said documents are not disputed by the other side. Further, it was held that the acknowledgement of liability in writing need not be accompanied by a promise to pay. The words used must merely indicate the jural relationship. Intention can be inferred by implication. It was further held that Courts generally lean in favour of a liberal construction of such statements. 20. Further, all due documents had been produced by the plaintiff in support of the plaint contentions. The defendants did not adduce any contra-evidence whatsoever. The Commercial Court has considered the materials and the oral evidence on record and has come to a conclusion that the amounts claimed are payable. 21. Having considered the contentions advanced, we are of the opinion that Ex.P11 is a clear acknowledgement of debt and that in the circumstances, the finding of the Commercial Court cannot be found fault with. Though the learned counsel for the appellants has raised several contentions, we are of the opinion in view of the fact that the bills are due was never controverted by the appellants and in view of the specific wordings of Ex.P11, the finding of the Commercial Court that Ex.P11 was an acknowledgement of debt, cannot be found fault with. 22. In the facts and circumstances of the instant case and on an examination of the materials on record, we find no error in the conclusion arrived at by the Commercial Court. No good grounds are made out to interfere with the judgment of the Commercial Court in this appeal. 23. In the result:- (i) The appeal fails and the same is accordingly dismissed. (ii) The amount in deposit before the Executing Court shall be released in favour of the respondent. No good grounds are made out to interfere with the judgment of the Commercial Court in this appeal. 23. In the result:- (i) The appeal fails and the same is accordingly dismissed. (ii) The amount in deposit before the Executing Court shall be released in favour of the respondent. All pending interlocutory applications shall stand dismissed. There will be no order as to costs.