Dismissed

Sardar Singh Contractor v. Telecommunication Consultant India Ltd.

Allahabad HC6 Feb 2018FAPL/88/2007

Case brief

AI extract

What is this about?

In this first appeal under Section 96 CPC, the appellant contractor challenged the lower court's findings regarding the supply and utilization of cables and joints against a government company. The appellate court examined the record and documentary evidence, finding no manifest error in the lower court's assessment of materials supplied versus returned. Consequently, the appeal was dismissed.

What did the court decide?

Appeal dismissed with cost throughout.

Sardar Singh Contractor Vs Telecommunicati… — Contract and Commercial Disputes | Allahabad HC (2018)

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Court No. - 34

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Case :- FIRST APPEAL No. - 88 of 2007

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Appellant :- Sardar Singh Contractor Respondent :- Telecommunication Consultant India Ltd. Counsel for Appellant :- Umesh Chandra Misra, Brij Raj, Sushil Kumar Dubey Counsel for Respondent :- M.R. Srivastava, Major Ranjan Srivastava

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Hon'ble Sudhir Agarwal, J. Hon'ble Shashi Kant, J.

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Heard Sri Brij Raj, Advocate, for appellant and perused the record. None has appeared on behalf of respondent, though the case has been called in revise. In the circumstances, we proceed to hear and decide this case finally after hearing learned counsel for appellant and perusing the record.

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This appeal under Section 96 of Code of Civil Procedure has been preferred at the instance of defendant challenging judgment and decree dated 21.11.2006 passed by Sri S.S. Lal, Additional District Judge, Court No. 6, Aligarh decreeing Original Suit No. 762 of 2003 in favour of plaintiff-respondent.

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Plaintiff-respondent filed the aforesaid suit against defendantappellant for recovery of Rs. 6,02,056/- along with interest at the rate of 18 per cent per annum from 13.08.1997 till the actual payment is made stating therein that plaintiff-respondent is a Government Company incorporated under Companies Act, 1956 (hereinafter referred to as “Act, 1956”) having its Corporate Office at TCIL Bhawan, Greater Kailash I, New Delhi. Company is functioning under the aegis of Ministry of Communications, Government of India and is inter alia engaged in consultancy of turnkey projects in the field of communications and related activities in India and abroad. Defendantappellant is a Civil Contractor and undertook the work of laying underground cables, pipes under HDPE pipe laying for OFC and duct

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works etc. Plaintiff-respondent invited tenders for laying down underground cable network in Telephone Exchange, Hapur on behalf of General Manager (Telecom) Ghaziabad. Ghaziabad Telecom was to be the Principal Employer which was within the knowledge of defendant-appellant. The works had to be carried out as per the drawings and specifications of Principal Employer, i.e., Ghaziabad Telecom, which comes under the erstwhile Department of Telecommunications (hereinafter referred to as “DOT”) and presently Bharat Sanchar Nigam Limited (hereinafter referred to as “BSNL”). Defendant-appellant submitted tender which was accepted by plaintiff-respondent on 27.05.1997. Pursuant thereto an agreement was entered into between the parties on 09.06.1997 at New Delhi. Copy of said letter of acceptance dated 27.05.1997 and agreement dated 09.06.1997 were annexed with the plaint. As per the contract between the parties, materials which were required to be used in execution of work, were to be supplied by plaintiff-respondent. The unused materials so supplied by plaintiff-respondent were to be returned after completion of work and to be reconciled at the time of preparation of final bill. Since tender was issued by plaintiffrespondent on behalf of DOT, materials so required were issued by DOT to defendant-appellant. However, after completion of work, defendant-appellant failed to submit account of the materials issued for reconciliation. Defendant-appellant also failed to complete the work and did not submit final bill. Defendant-appellant submitted two running bills dated 08.07.1997 and 01.08.1997 and was paid a sum of Rs. 91,989/- which included amounts deducted towards TDS and insurance charges. He did not furnish either Performance Guarantee or Material Guarantee which was otherwise to be furnished as per the terms of contract. Failure on the part of defendant-appellant to furnish the same would dis-entitle him even for payment of Rs. 91,989/-. Defendant-appellant raised second bill on 01.08.1997 which was not

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paid pending account of materials installed, since no payment could have been released to the defendant-appellant without reconciling the materials issued to it and return of excess material with them. Plaintiff-respondent vide its letter dated 17.11.1998 requested defendant-appellant to provide account of materials issued to him immediately. The said letter was replied by defendant-appellant vide its letter dated 28.11.1998 wherein a frivolous plea was taken that whatever material was issued by DOT on the requisition of plaintiffrespondent was consumed and whatever was left was got deposited by him in DOT Store, Hapur. The said statement was also fortified by statement that in case there is any difference in the quantities of the material issued, consumed and returned, defendant-appellant was ready to reconcile the same on being informed by plaintiff-respondent regarding the same. The said letter of defendant-appellant also stated that he was enclosing receipts of the materials deposited with DOT Store, but neither any such receipt was enclosed nor any other material was produced in support of the said statement. Thereafter various correspondence took place between the parties. Defendantappellant was requested to submit statement for reconciliation of materials issued to him which was replied by defendant-appellant stating that he would shortly send final bill along with store statement and other relevant documents for verification and reconciliation but despite fixing of dates several times, on the request of defendantappellant, he failed to provide any such details and eventually plaintiff-respondent was constrained to issue a legal notice dated 14.01.2003 whereby defendant-appellant was informed that EMD for a sum of Rs. 1,00,000/- stood forfeited. Defendant-appellant is liable to pay back to plaintiff-respondent a sum of Rs 6,11,097/-. A sum of Rs. 90,959/- has already been released in favour of defendantappellant and after adding it into the aforesaid amount and deducting the amount of EMD, defendant-appellant is liable to pay Rs.

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6,02,056/-. The aforesaid calculation was shown in the plaint in shape of charge as under:

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Amount for Material shortage	=	Rs. 6,11,097/-
Less EMD available	=	Rs. 1,00,000/-
Add Payments released to defendant	=	Rs. 90,959/- Rs. 6,02,056/-

¶16

Thus, defendant-appellant is liable to pay Rs. 6,02,056/- along with interest at the rate of 18 per cent per annum with effect from 13.08.1997 till the date of actual payment.

¶17

Suit was contested by defendant-appellant by filing written statement wherein contention made in para-1,2, 3 and 4 in the plaint were admitted subject to certain assertions and the contention of para5 were partly admitted. In reply to para-6, letters issued by plaintiffrespondent are admitted. In reply to para-7, it is denied that there was shortage of stores to the tune of Rs. 41,93,916/-. It is stated on behalf of defendant-appellant that there was no shortage and correct position will be given in the additional pleas. All letters referred in para-8 are also admitted. According to defendant-appellant, contents of para-8 requires no admission/denial in view of the fact that it relates to intention of plaintiff-respondent regarding item. In reply to paras-10 and 11 of plaint, supply of cables and joints was admitted with assertions that all the cables and joints supplied to defendant-appellant were consumed and there remained no cable or joint with defendantappellant. In para 12, deposition of Rs. 1,00,000/- towards contractor registration fee was admitted. In para-13, the averments made in para13 of plaint were admitted that defendant-appellant has not given 5 per cent cost of material by way of Bank guarantee, with assertion that plaintiff-respondent has waived this guarantee and issued work order to start and complete the work. In case guarantee was condition precedent, plaintiff-respondent should not have issued work order. The averments of para 14 along with reliefs prayed are denied.

¶18

Setting up his case for counter claim, it was pleaded on behalf

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of defendant-appellant in additional pleas that defendant-appellant has completed the work as per norms and to full satisfaction, according to terms and conditions prescribed by the department. There is no complaint of any sort regarding work during execution of work or thereafter. Defendant-appellant carried out work to the tune of Rs. 2,97,117/- while he has been paid Rs. 57256/- only and after deducting this amount, an amount of Rs. 2,39,861/- remained due. Out of this amount a sum of Rs. 2,972/- was deductible as T.D.S. As such amount of Rs. 2,36,889/- remained due against plaintiff-respondent as final payment. Vide letter dated 08.06.1999 defendant-appellant asked to release contractor registration amount and vide letter dated 14.04.2000 sent a reminder but plaintiff-respondent failed to release the amount and to make final payment, therefore defendant-appellant is entitled for payment of Rs. 2,36,889/- along with pendente lite and future interest at the rate of 18 per cent per annum till payment.

¶21

On the basis of pleadings of parties, Court below framed following 13 issues:

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^^1& D;k oknh okni= esa ekaxh x;h jde ikus ds vf/kdkjh gSa^^

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“1. Whether the plaintiff is entitled to get the amount sought in the plaint?”

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^^2& D;k izfroknh vius izfrnkos esa ekaxh x;h jde ikus dk vf/kdkjh gS^^

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“2. Whether the defendant is entitled to get the amount claimed in the written statement?”

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^^3& D;k izfroknh dh rjQ oknh }kjk fn;s x;s dsfcy o TokbaV~l cdk;k gS\ tSlk fd okni= esa dgk x;k gSA ;fn gka rks fdruk eky cdk;k jgk o fdruh dher dk^^

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“3. Whether the cable and joints given by the plaintiff are due (for payment) on the defendant as averred in the plaint? If so, how many items remained unused and of what cost?”

¶28

^^4& D;k oknh us izfroknh ds fcy ls Vh-Mh-,l- ba';ksjsUl o xkj.Vh dh jdesa dkV yh\ ;fn gka rks izHkko^^

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“4. Whether the plaintiff debited TDS, Insurance and guarantee

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amounts from the bill of the defendant? If so, its effect?” ^^5& D;k oknh izfroknh ls Hkqxrku fd;s /ku :0 90]959@& izkIr djus ds vf/kdkjh gSa^^

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“5. Whether the plaintiff is entitled to get paid amount of Rs. 90,959/- from the defendant?”

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^^6& D;k izfroknh dks 17459 ehVj dsfcy lIykbZ dh xbZ\ tSlk fd okni= dh /kkjk 20 esa of.kZr gS^^

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“6. Whether the defendant was supplied 17,459-metre cable as averred in the para 20 of the plaint?”

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^^7& D;k oknh izfroknh ls C;kt ikus ds vf/kdkjh gSa\ ;fn gka rks fdl nj ls^^

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“7. Whether the plaintiff is entitled to get interest amount from the defendant? If so, then at what rate?”

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^^8& D;k izfroknh oknh ls :0 3]36]889@& vFkok 3]05]896@& tSlk fd izfrokn i= dh /kkjk 24 esa of.kZr gS ikus dk vf/kdkjh gS^^

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“8. Whether the defendant is entitled to get Rs. 3,36,889/- or

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3,05,896/- from the plaintiff as averred in para 24 of the written

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statement?”

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^^9& D;k izfroknh izfrnkos ij fdlh C;kt dks oknh ls ikus dk vf/kdkjh gS\ ;fn gka rks fdl nj ls^^

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“9. Whether the defendant, through counter claim, is entitled to get any interest from the plaintiff? If so, then at what rate?”

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^^10& D;k oknh vFkok izfroknh fdlh vuqrks"k ;fn dksbZ gks dks ikus ds vf/kdkjh gSa^^

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“10. Whether the plaintiff or the defendant is entitled to get any relief?”

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^^11& D;k izfroknh }kjk tek dh x;h 1]00]000@& :i;s dh /kujkf'k crkSj Bsdsnkjh fujks/kd 'kqYd ¼tujy flD;ksfjVh½ tek dh x;h gSA tSlk fd izfrokn i= esa dFku gS ;k mDr jkf'k crkSj Mh0,e0Mh0 oknh ds ikl tek gS\ ;fn gkWa rks izHkko^^

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“11. Whether the amount Rs. 1,00,000/- deposited by the defendant has been deposited as general security (thekedari nirodhak shulk) as mentioned in the written statement or the

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aforesaid amount has been deposited with the plaintiff as DMD? If so, its effect?”

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^^12& D;k izfroknh ds fcy ls dkVh x;h /kujkf/k eqcfyx 20888@& :i;s crkSj ijQkjesal xkjUVh izfroknh izkIr djus dk vf/kdkjh gS^^

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“12. Whether the defendant is entitled to get as performance guarantee the amount Rs. 20,888/- debited from the defendant's bill?”

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^^13& D;k Qkbuy fcy izLrqr fd;s tkus ds vHkko esa izfroknh ekaxh x;h /kujkf'k izkIr djus dk vf/kdkjh gS^^

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“13. Whether the defendant, due to non-production of final bill, is entitled to get the demanded amount?”

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(English Translation by Court) 8. After hearing parties and appreciating evidences available on record, Court below has recorded finding that payment of remaining cables and joints provided by plaintiff-respondent to defendantappellant is due on defendant-appellant and he is liable to pay Rs. 6,11,097/- for unreturned materials, i.e., cables and joints.

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On Issue-4, Court below has recorded finding that T.D.S., Insurance and performance warranty deducted by plaintiff-respondent is in accordance with the conditions of agreement and due to non furnishing final bill, defendant-appellant is not entitled for refund of those.

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In respect of Issue-5, plaintiff-respondent was held not entitled to recover Rs. 90,959/- from defendant-appellant due to absence of pleadings to that effect.

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Considering issue Issue-7, it was held that there is no interest clause in the contract dated 09.06.1997 arrived at between the parties. In the circumstances, entitlement of interest is only 6 per cent under Civil Procedure Code.

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In respect of Issue-11, Court below held that security of Rs. 1 lac deposited by defendant-appellant has been adjusted by plaintiffrespondent in its claim, hence there is no dispute regarding that.

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While dealing with Issue-12, it was held that Rs. 20,888/- has been deducted as performance guarantee by plaintiff-respondent in accordance with the conditions of contract. Defendant-appellant has not furnished final bill. In these circumstances, he is not entitled for refund of amount deducted under performance guarantee.

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Under Issue-13, defendant-appellant was found not entitled to get any amount on the basis of final bill produced by him before Court during trial. Thereafter Issues-2, 8 and 9 were taken together and it was held that defendant-appellant is entitled to recover Rs. 2,62,441/from plaintiff-respondent with interest at the rate of 6 per cent per annum from the date of filing of Counter-claim i.e. 01.08.1997.

¶61

Issues 1 and 10 were decided together holding the plaintiffrespondent entitled to recover from defendant-appellant Rs. 6,02,056/with 6 per cent simple interest from 13.08.1997 till payment and defendant-appellant was found entitled to recover Rs. 2,62,441/- with 6 per cent interest from plaintiff-respondent.

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On the basis of above findings, suit of plaintiff-respondent and counter-claim of defendant-appellant were decreed vide judgment under appeal.

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Feeling aggrieved, defendant-appellant, the Contractor, has filed this appeal.

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Learned counsel for defendant-appellant contended that Court below has not properly appreciated the evidences produced by parties especially the defendant-appellant and drew wrong conclusions while recording its findings on Issues-3 and 6.

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The only point, which has arises for determination in this appeal, “as to whether finding recorded by Court below on Issues-3 and 6 are based on proper appreciation of material available on record and requires no interference?”

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Perusal of record shows that despite large number of correspondence between the parties and seeking time on number of

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occasions for submitting final bill and return of unused cables and joints, defendant-appellant has not submitted final bill to plaintiffrespondent and it (final bill) was produced by defendant-appellant only before the Court during Trial. In absence of final bill and other necessary documents, joint inspection of second running bill could not be materialized. Perusal of record also makes it clear that dispute between the parties is not regarding damage or compensation, rather it is for account of cables and joints provided to defendant-appellant by plaintiff-respondent for completing the work of underground cable network. Plaintiff-respondent was providing material to defendantappellant through store acquisition slips which are on record as Paper No. 33/1 to 33/16 and by means of those, cables and joints were provided to defendant-appellant. The Court below has relied on following chart regarding supply of various items to defendantappellant:

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fooj.k eSVhfj;y dsfoy o Vh-,l-,Q-%

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		;wfuV	jsV :i;s	tkjh a	okfilh	bLrseky a		fn;k
				l[;k		l[;k	Lak[;k	:i;s
dsfoy	100	ehVj	217	1517		1490	27	5859
	200	ehVj	361	5619		5281	338	122018
	400	ehVj	700	6363		6350	13	9100
	800	ehVj	1350	3962		3750	212	286200
Vh-,l,Q- 3 ew-iSM	100 ,.M 200 TokbaV	bap	1500	33	3	37	13	23400
Vh-,l-,Q - 4 eq- iSM	400 TokbaV	bap	3060	52	1	17	34	104040
Vh,l,Q 5 ,.M 6 ,tM	800	bap	4320	34	6	14	14	60480
VksVy								611097

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Details of material: Cable and TSF

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		Unit	Rate	Issue	Utilisation	Retu	rned
				no.	number	_Number _	Rupees
_Cable _	100	_Metre _	217	1517	1490	27	5,859
	200	_Metre _	361	5619	5281	338	1,22,018

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	400	_Metre _	700	6363		6350	13	9,100
	800	_Metre _	1350	3962		3750	212	2,86,200
TSF. 3Mu. Pad	100 and 200 Joints	Inch	1500	33	3	37	13	2,34,00
TSF. 4Mu. pad	400 Joints	Inch	3060	52	1	17	34	1,04,040
TSF. 5&6. AZ	800	Inch	4320	34	6	14	14	6,04,80
Total								6,11,097

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(English Translation by Court)

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While deciding Issue-3 and 6, Court below has considered the documentary evidence and submissions of parties in detail, as is evident from relevant part of finding of Court below, which is being reproduced as under:

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^^izfrokn i= ds vuqlkj 17]459 ehVj dsfoy oknh ds ek/;e ls izfroknh dks lIykbZ fd;s x;s ftlesa 304 eh- mlus okil dj fn;k vkSj 15153 eh- dsfoy bLrseky gks x;hA TokbUVl ds lEcU/k esa izfroknh us izfrokn i= esa dgk gS fd 92 TokbUVl mls izkIr gq, 10 mlus oknh dks ykSVk fn;s vkSj 'ks"k bLrseky dj fy;s x;sA

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LVksd fjDohth'ku fLyilhfj;y ua- 131 yxk;r 142 dkxt la[;k 55,1 @2 yxk;r 55,1 @12 rd izkIr dsfcy Vh-,l-,Q- TokbUVl izfroknh izkIr djuk Lohdkj djrk gS vkSj LVh dfjDohth'ku fLyi 143 yxk;r 146 dkxt la- 55,1@14 ls 55,1@16 rd ls dksbZ eSVhfj;y izkIr gksus ls badkj djrk gSA fofnr gks fd ;g izfroknh }kjk izFke okj lk{; ds vk/kkj ij 'kiFki= ds ek/;e ls izLrqr lk{; 72, ds iSjk&10 esa dgk gS izfrokn i= esa dgh Hkh izfroknh dk ;g dFkkud ugha gS fd 143 yxk;r 146 rd ds lkeku mls izkIr ugha gq, gSaA rdZ ds Lrj ij izfroknh ds fo}ku vf/koDrk dh rdZ dk dFku gS fd Lvksd fjDohth'ku fLyi 143 yxk;r 146 ij izfroknh ds fdlh izfrfuf/k ds gLrk{kj ugha gS vkSj dfVax gS ds f}rh; jfuax fcy izLrqr djus ds ckn oknh }kjk QthZ :i ls rS;kj fd;k x;k gSA tSlk fd i=koyh ij miyC/k lk{; ls Li"V gS fd eSVhfj;y jhdUlh fy,'ku o Qkbuy fcy izLrqr djus ds fy, oknh }kjk yxkrkj izfroknh dks i= fy[ks tkr jgs vkSj izfroknh }kjk Hkh eSVhfj;y fjDohth'ku vkSj QkbZuy fcy izLrqr fd;s tkus gsrq dgk x;k vkSj dbZ ckj leku dh ekax dh x;h tSlk fd 1 yxk;r 14 fu.kZ; esa of.kZr gSA

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ysfdu izfroknh }kjk mDr rd u eSVhfj;y fjDohft'ku gsrq iz;kl fd;k x;k vkSj u vfUre fcy izLrqr fd;k x;kA bu ifjfLFkfr;ksa esa Lvksj fjDohth'ku fLyi 143 yxk;r 146 dkxt la[;k 55,1@13 yxk;r 55,1@16 ds ek/;e ls izkIr esVhfj;y ds ckjs esa izfroknh dk ;g dFku Hkh mls izkIr ugha gqvk fo'oluh; ugha gS vkSj blds fo:) dqN dgus ls izfroknh LVs vihy gS D;ksafd bl lanHkZ esa izfroknh }kjk fy[kk i= mlds fo:) LVsvihy ds :i esa izHkkoh gSA

¶81

mijksDr rF;ksa o i=koyh ij miyC/k izys[kh; lk{; ds vk/kkj ij oknh }kjk fn;s x;s dsfcy vkSj TokbUVl izfroknh ij cdk;k gS vkSj izfroknh 17]707 ehVj dsfcy lIykbZ fd;k x;kA 246 ehVj dsfcy izfroknh }kjk ykSVk;k x;k vkSj 17461 ehVj dsfcy izfroknh dks vkiwfrZ fd;k x;k bl izdkj izfroknh ds ftEes 6]11097 :i;s ds eSVhfj;y dsfcy o t;kbUVl cdk;k jgsA tSlk fdfu.kZ; ds i`"B&18 ds vUr esa yxh rkfydk ls Li"V gSA okn fcUnq la[;k 3 o 6 rnuqlkj fu.khZr fd;s tkrs gSaA**

¶82

“As per the written statement, 17,459-metre cable was supplied by the plaintiff to the defendant, out of which the latter returned 304 metre, and 15,153-metre cable was utilised. With respect to the joints, the defendant has averred in the written statement that 92 joints were received with him, 10 of which were returned to the plaintiff and the rest were utilised.

¶83

The defendant admits having received cable and TSF joints through the stock requisition slips bearing serial nos. 131 to 142 (paper nos. 55A1/2 to 55A1/12), and he denies having received any material through stock requisition slips bearing no. 143 to 146 (paper nos. 55A1/14 to 55A1/16). Be it known that in the first statement on oath made in para 10 of the evidence (72A) on affidavit, the defendant has mentioned nowhere in the written statement that he did not receive the articles as in 143 to 146.

¶84

During the arguments, the learned counsel on behalf of the defendant has argued that the stock requisition slip nos. 143 to 146 do not bear signature of any representative of the defendant, and there is cutting as well, which was fraudulently

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prepared by the the plaintiff on the basis of second running bill produced by the defendant. As per the evidence available on records, it is clear that letters continued to be written by the plaintiff for material reconciliation and for producing the final bill, and persistent demands have also been made by the defendant for material requisition and for producing final bill, and many a time items were demanded as described in nos. 1 to 14; but by that time , no effort was made by the defendant for material requisition, nor was produced final bill by him. In these circumstances, the statement of the defendant that he did not receive the material through stock requisition slip nos. 143 to 146 (paper no. 55A/13 to 55A1/16), is not reliable; and the defendant is estopped to say anything against it because the letter written by the defendant in this respect works as estoppel against him.

¶87

On the grounds of the aforesaid facts and documentary evidence available on record, it is found that cable and joints provided by the plaintiff are due on the defendant, and 17,707metre cable was supplied to the defendant, out of which 246metre cable was returned and 17,461-metre cable was utilised by the defendant. In this way, Rs. 6,11,097 for material, cable and joints, are due on the defendant, as is evident from the table at the end of the page 18 of the order. Issues 3 and 6 are decided accordingly.” (English Translation by Court)

¶88

On the basis of aforesaid reasons, we do not find any manifest error of fact or law. This is also not the case of defendant-appellant that the findings of Court below are not based on evidence available on record or based on consideration of any non admissible evidence or any evidence has been left from consideration.

¶89

The point for determination is, therefore, answered against appellant.

¶90

13 24. Appeal is dismissed with cost throughout. Dt. 06.02.2018 PS

Sardar Singh Contractor v. Telecommunication Consultant India Ltd.

Case brief

What is this about?

What did the court decide?

Sardar Singh Contractor v. Telecommunication Consultant India Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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