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Jharkhand High Court
M/S Techno Expo vs M/S Udya Brothers Represented Through … on 9 April, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
( 2025:JHHC:10878 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 37 of 2022
M/s Techno Expo, through President and CEO Sri R.D. Singh, aged
about 77 years, son of Late Balkeshwar Singh, 121, BIADA Colony,
Lohanchal Complex, Bokaro Steel City, P.O. & P.S.- Sector-12,
District- Bokaro ... ... Plaintiff/Appellant
-Versus-
1. M/s Udya Brothers represented through Sri P.K. Udaybhanu, son
of Late P.K. Kunjupillai, 98, Cooperative Colony, P.O. & P.S.-
Bokaro Steel City, District- Bokaro
2. Smt. Syamalaudayan @ Smt. Syamal Audayan, wife of Sri P.K.
Udaybhanu, 98, Cooperative Colony, P.O. & P.S.- Bokaro Steel
City, District Bokaro ... ... Principal Defendants/Respondents
3. M/s. Steel Authority of India Limited/Bokaro Steel Plant through
its Chief Executive Officer, P.O. & P.S.- Bokaro Steel City,
District-Bokaro ... Proforma Defendant/Proforma Respondent
---
CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Appellant : Mr. Pandey Neeraj Rai, Advocate
For the Respondents : Mr. Rahul Lamba, Advocate
: Mr. Nilesh Modi, Advocate
: Mr. Aditya Mohan Khandelwal, Advocate
—
Lastly heard on 13.02.2025
15/09.04.2025 This first appeal has been filed against the Judgement
dated 13th January, 2022 (Decree signed on 22.01.2022) passed by the
learned Civil Judge (Senior Division)-I, Bokaro in Money Suit No. 23 of
2012 whereby the suit has been dismissed on contest holding that the suit is
not maintainable and therefore the plaintiff has no valid cause of action.
2. The plaintiff/appellant had filed the suit on 28.04.2012 for a decree of
Rs.62,77,385.50 with interest pendentilite and future against the defendant
No. 1(hereinafter referred to as “Principal Defendant”) and with a prayer that
the proforma defendant be permanently restrained from making any further
payment to the Principal Defendant and temporary ad-interim injunction in
terms of the reliefs prayed for in the suit.
Case of the Plaintiff-Appellant
3. The case of the plaintiff has been detailed and described in the
impugned judgement. However, the case of the plaintiff in short is as
follows: –
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a. The plaintiff is a proprietorship firm executing contractual work
and providing engineering & consultancy services to various
firms/contractors. The Principal Defendant is a registered contractor
under proforma defendant and was granted various projects for
Civil, Structural Electricidal and other works and were in search of
experienced person through whom they could compete in the
tenders for projects floated by proforma defendant where design,
engineering, supply, erection, testing & commissioning are involved
and get the contract. Upon being approached by the Principal
Defendant, the plaintiff became ready to provide the technical
know-how and assist technically to provide all back-up and support
to the Principal Defendant for the proper preparation of bids, and
performance of the project with his technical skills and knowledge.
b. The tender dated 27.12.2006 was issued by proforma defendant for
Civil, Structural & Electrical works in the Bokaro Steel plant and
the Principal Defendant requested the plaintiff to assist for
preparation of the techno-commercial bids and for doing entire
coordination. The Principal Defendant also authorized the plaintiff
to collect/submit tenders, drawings, letters, clarification points
and/or any other documents related to the aforesaid project and to
attend opening of techno-commercial bid, price bid to techno-
commercial discussions & negotiations on behalf of the Principal
Defendant and to take suitable decisions and sign any document
relating to the aforesaid tender. The authorization letters were
addressed to the competent authority of the proforma defendant and
a copy was given to the plaintiff. Consequently, the plaintiff did the
needful and subsequently, the plaintiff issued a letter dated
06.06.2007 and a letter dated 08.06.2007 on behalf of the Principal
Defendant to proforma defendant explaining the reasons for getting
chance for submission of revised price bid and after completion of
the tender process the Principal Defendant become technically &
commercially suitable and also L-1 in the price bid due to expert
knowledge of the plaintiff and work was awarded to the principal
defendant vide work order dated 13.11.2007 and the contract was2
( 2025:JHHC:10878 )signed on 26.03.2008 whose value was Rs. 2,62,77,764/-. It is the
case of the plaintiff that after submission of the price bid a MOU
cum working agreement was prepared between the plaintiff and the
principal defendant on 11.09.2007 which was signed by both the
parties in presence of two witnesses and was also authenticated by
the Notary Public Bokaro.
c. It is the case of the plaintiff that both the parties mutually agreed to
work together for preparation and submission of the techno-
commercial bids, participation in techno-commercial discussions
and submissions of required clarification for the above mentioned
project and in case of award of the contract to them, they would
take the detailed fabrication, design, dismantling, fabrication,
supply, erection, execution of civil work, testing & commissioning
of the project and establishment of the performance guarantee
parameters as per provision of the contract. A specific reference has
been made to the work mentioned in parameters in clause 3 to 7 of
the MOU dated 11.09.2007 which are quoted as under: –
“3) That the Second party shall arrange design &
engineering for the project and provide all technical
supervision in the area of fabrication & erection of
structural items, and civil execution work as per mutual
understanding.
4) That the First party shall execute the civil and structural
work at site in premises of Bokaro Steel Plant/outside as per
agreement with BSL.
5) That the second party shall be responsible for all co-
ordination work, correspondences, preparation and
submission of bills, project monitoring and progressing and
arrangement Drawings.
5) That the second party shall arrange supply of bought out
items/plant & equipments/components from domestic
sources at the most economical rates on behalf of the first
party.
6) That the second party time to time shall make
arrangement for fund some, time when the investment will
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be high for procurement of steel for structural work, in case
or urgency. Basically the first party shall make the financial
arrangement.
7) The payment shall be released by BSL in the name of the
first party. The First Party, immediately, on receipt of
cheque from BSL shall issue a cheque in the name of the
Second party, which shall be equivalent to 15% of the value
of the cheuqe issued by BSL, after adjustment of Taxes,
duties and other miscellaneous Expenses. Any expenditure
made by the second party in procurement of material or
otherwise, shall be reimbursed.”
d. It is the case of the plaintiff that clause 7 of the agreement
stipulated that the payment shall be released by proforma defendant
in the name of Principal Defendant and the Principal Defendant
shall, immediately on receipt of the cheque issued by the proforma
defendant, issued a cheque in the name of the plaintiff, which shall
be equivalent to 15% of the value of the cheque issued by the
proforma defendant after adjustment of the taxes, duties and
miscellaneous expenses and further that any expenditure made by
the plaintiff in procurement of material or otherwise shall be
reimbursed by the Principal defendant.
e. Thus, as per clause 7 payment was to be made to the Principal
Defendant immediately on receipt of cheque issued by the proforma
defendant to the extent of 15% subject to the aforesaid deductions
and adjustments.
f. It was the specific case of the plaintiff that the following cheques
were released to the Principal Defendant by the proforma defendant
and immediately thereafter the plaintiff sent his four bills whose
details have been mentioned in paragraph 18 to 20 of the plaint
which, in a tabular form, is as under: –
Sl. Cheque amount released Bill sent by plaintiff to
No. to the Principal Defendant the principal
by Proforma Defendant. defendant.
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( 2025:JHHC:10878 )
1 Rs. 14,33,871/- Bill No. 101, dated
10.11.2008 amounting to
Rs. 2,15,081/-
2 Rs. 68,42,028/- Bill No. 102 dated
05.12.2008 amount to
Rs. 10,26,304/-
3 Rs. 53,00,000/- Bill No. 103 dated
20.01.2009 amounting to
Rs. 7,95,000/-
4 Rs.62,27,819/- Invoice No. 104 dated
30.04.2009- Rs.
10,35,793/-
g. It is the further case of the plaintiff that in spite of several requests
nothing was paid to the plaintiff pursuant to the agreement dated
11.09.2007 against the aforesaid four bills.
h. Thus, the case of the plaintiff was that the Principal Defendant
received the total sum of Rs. 2,04,81,187/- vide four cheques
against four bills and therefore, the plaintiff ought to have been paid
an amount of Rs. 30,72,178/- pursuant to the invoices raised by the
plaintiff in terms of agreement dated 11.09.2007. The plaintiff sent
a legal notice to the Principal Defendant vide notice dated
27.01.2009 through Advocate and the Principal Defendant agreed to
amicably resolve the issue but vide letter dated 19.02.2009 the
principal defendant raised some baseless points which was clarified
vide letter dated 14.03.2009 on behalf of the plaintiff and still the
Principal Defendant did not make any payment for the work done
by the plaintiff.
i. The plaintiff has also asserted that the Principal Defendant did not
respond to the various letters and reminders except sending two
letters both dated 20.06.2011 in which the Principal Defendant
offended the plaintiff by mentioning that the plaintiff has not
performed his obligation as stated in the agreement and is not
entitled to get any payment which according to the plaintiff
amounts to breach of trust by the Principal Defendant; in the other
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( 2025:JHHC:10878 )
letter dated 20.06.2011 the Principal Defendant even mentioned
about clause 2 of the agreement mentioning that the same was not
performed.
j. It was further stated by the plaintiff that the Principal Defendant has
not singed the present MoU/agreement under dispute with the
plaintiff rather the Principal Defendant has signed and made total
five agreements (including the subject one) for various projects
under proforma defendant and a copy of additional four agreements
were annexed with the plaint said to be marked as Annexure-VII (a)
to (d).
k. It was also asserted in paragraph 30 of the plaint that during the
course of correspondences the Principal Defendant never disclosed
his intention either orally or through written reply to the plaintiff’s
letters regarding termination of MOU/Agreement at any point of
time. But the principal defendant in reply vide letter dated
20.06.2011 to the plaintiff’s letter dated 31.03.2011 and 25.04.2011
for the first time came up with a plea that the Principal Defendant
has already terminated the contract on the ground of plaintiff’s
failure in performing his part of the obligation. It has also been
asserted that under MOU/Agreement there is no provision for
termination of the agreement by any party and clause 11 clearly
stipulated that in case of any difference both the parties shall
discuss and resolve the issues. In case the issue is not resolved, the
matter may be referred to the local court/High Court as per the
provision of law. Clause 11 of the agreement was violated and the
Principal Defendant has mentioned in letter dated 20.06.2011 that
the agreement was terminated by their previous letter.
l. However, the plaintiff in order to resolve the dispute instituted a
pre-litigation case No. 38 of 2011 before the Permanent Lok Adalat,
Bokaro and agreed to settle the claim of Rs. 24,72,178/- but the
Principal Defendant declined and the case was closed by the
Permanent Lok Adalat with a remark “the claimant/applicant is at
liberty to seek legal remedy in the court of competent jurisdiction
against the Principal Defendant”.
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m. A reference was also made to the letter dated 19.02.2009. The said
letter has been issued by the Advocate of the Principal Defendant
and it has been asserted that in the said letter that it was agreed with
respect to the contents of the MoU/Agreement and the Principal
Defendant had agreed to compensate for the technical know-how
provided by the plaintiff.
n. The plaintiff in paragraph 38 claimed that a sum of Rs.
2,62,77,764/- was paid by the proforma defendant to the Principal
Defendant and apart from that extra work worth Rs. 21,00,000/-
was also done and the total contract value comes to Rs.
2,83,77,764/-. The Principal Defendant had already received an
amount of Rs. 2,04,81,187/- but the plaintiff did not receive any
amount. The Principal Defendant should have paid Rs. 30,72,178
(15% of the total payment received by the Principal Defendant from
proforma defendant till January, 2009) to the plaintiff and further it
has been stated that at the time of filing of the suit the plaintiff was
now entitled to get Rs. 42,56,665/- @ 15% of the total contract
value and the extra claims, as per the terms and conditions of the
MoU/Agreement dated 11.09.2007 with interest @14% as per the
schedule given to the plaint. The schedule of the plaint is quoted as
under:-
Sl. No. Date Bill amount released by 15% of total bill
BSL value
1 13/08/2008 62,27,819.00 9,34,172.85
2 22/08/2008 14,33,871.00 2,15,080.65
3. 22/10/2008 68,42,028.00 10,26,304.20
4. 1/1/2009 59,77,469.00 8,96,620.35
20481187.00 30,72,178.05
Amount Compound 4th year Interest/ Interest for Total Total
after CI for interest for interest day day in 4th amount time
3 years 3 years year duration
till
13/04/2012
1411599.31 477426.46 131749.27 0.00 0.00 1543348.58 3 years 8
months7
( 2025:JHHC:10878 )325001.63 109920.98 30333.49 124.66 1745.21 357080.33 3 years 7
months
& 14
days
1550816.11 524511.91 144742.84 594.83 8327.67 1703886.62 3 years 5
months
& 21
days
1354854.91 458234.56 126453.12 519.67 7275.39 1488583.42 3 years 3
months
& 12
days
1570093.91 433278.72 17348.27
2020720.90 5092898.95Total contract price Rs.2,62,77,764.00
Payment received by (Less) Rs.2,04,81,187.00
Udaya Brothers:
Balance to be received (Add) Rs.57,96,577.00
Value of claim submitted (Add) Rs.21,00,000.00
Total Rs.78,96,577.00
15% of the total value Rs.11,84,486.55a Till date payment received by Udaya 5092898.95
Brothers Rs.2,04,81,187.00 our payment
(@15% only Principle) Rs.30,72,178.00.
Total interest from the date of receipt of
payment is Rs.17,86,786.53. So amount
payable to us with interest against the
payment already received Rs.50,92,898.95
B The amount for which the work has already 869486.55
been completed by us & UB but payment yet
to be received (Rs.2,62,77,764.00 – Rs.
2,04,81,187.00) = Rs.57,96,577.00. So, the
amount payable to us is (@ 15) =
Rs.8,69,486.55
C Amount for the extra work done to complete 315000.00
the project Rs.21,00,000.00. So the amount
payable to us (@ 15%) = Rs.3,15,000.00
So the total claim amount works out to be 6277385.50
(a+b+c)=8
( 2025:JHHC:10878 )o. According to the plaint, the cause of action arose on the basis of
denial of payment to the invoice dated 10.11.2008, 05.12.2008,
20.01.2009 and 30.04.2009 raised by the plaintiff and also on
20.06.2011 when the Principal Defendant issued a letter of refusal
for making any payment and finally on 13.03.2012 when the
Principal Defendant denied for making payment raised before the
permanent Lok Adalat. The suit was filed on 28.04.2012.
4. The plaintiff prayed for the following reliefs: –
(a) That decree for Rs. 62,77,385.50 (Rupees Sixty
Two lacs seventy seven thousand three hundred eighty
five and fifty paisa) only as per account given below in
favour of the plaintiff and against the Principal
Defendant.
(b) That a decree for cost of the suit, interest pendente
lite and future be passed in favour of the plaintiff and
against the Principal Defendant.
(c) That Proforma Defendant be permanently
restrained from making any further payment to the
Principal Defendant and temporary and ad-interim
injunction on the above terms may also be granted in
favour of the plaintiff.
(d) That a decree for such other relief or reliefs, if any
to which the plaintiff may be found entitled to be
passed.
Case of the principal defendant/ contesting defendant /respondent
5. The case of Principal Defendant has been fully mentioned in the
impugned judgement based on the written statement. However, the
case of the principal defendant, in short, is as follows: –
(i) The principal defendant filed a written statement stating that
the suit was not maintainable; there was no cause of action and
the suit was hopelessly barred by limitation.
(ii) It was alleged that there was deliberate suppression of
material facts from the Court. It was specifically denied in the
written statement that the Principal Defendant never authorized9
( 2025:JHHC:10878 )the plaintiff at any point of time and that the work order was
allotted and the agreement was executed with the proforma
defendant on successful technical and commercial bid but not
due to expert knowledge of the plaintiff rather the experience
and expert knowledge of the Principal Defendant was involved.
With respect to the MoU, it was specifically asserted that the
same was not authenticated by the Notary Public, Bokaro rather
the same is attested by Notary Public, Bokaro on 23.12.2007.
The plaintiff instigated and got such void MoU signed under
misrepresentation taking advantage of the situation that the
Principal Defendant was not conversant in Hindi and English as
such he is a South Indian. It was further submitted that
whatever was written in the MoU was drafted unilaterally by
the plaintiff.
(iii) It was asserted that the plaintiff had not done anything in
terms of para 2, 3, 5, 6 and 8 of the said MoU and had
neglected performance in respect of the terms of the agreement
and in view of para 9 of the MoU, the Principal Defendant
terminated the plaintiff at very early stage. It has been stated
that the plaintiff was required to make arrangement of funds for
procurement of Steel for structural work but he did not pay any
heed in this regard at any point of time. The plaintiff never
discharged his part of obligation which he had undertaken and,
in such view, he had breached the understanding and to this
score, the said MoU terminated at his ends. It was also stated
that the plaintiff after signing of the MoU slept over the matter
and woke up only after he could know that three numbers of
R.A. Bills had been released to the Principal Defendant by the
proforma defendant. It was further asserted that in clause 7 of
the MoU, it has been mentioned that the plaintiff will get 15%
of the cheque amount issued by proforma defendant and it was
stated that the plaintiff had not made any investment of single
farthing on the work but the plaintiff will get 15% of entire
payment made by the proforma defendant to the Principal
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Defendant and further all taxes were to be paid by the Principal
Defendant and all expenditures were made by the Principal
Defendant. It was asserted that as per the standards recognized
by the C.P.W.D., Railway as well as B.S.L.(proforma
defendant), the maximum profit is recognized generally to the
extent of 15%. As per the agreement, the entire profit would go
to the plaintiff. On this score, it was asserted that the agreement
was void and cannot be enforced in the eyes of law.
(iv) It was stated that the plaintiff had not rendered any service
and was not entitled for any payment arising out of such void
agreement and there was no question of oral assurance as
alleged by the plaintiff. It was stated that all the bills were
fabricated to develop pressure on the Principal Defendant for
illegal gains on the strength of fraudulent acts. It was also stated
that the payment of Rs. 62,27,819/- was not made by the
proforma defendant for this work and the plaintiff is bound to
strict proof of the same and the whole exercise of the plaintiff
was to extract money from the Principal Defendant on the
strength of fabricated papers.
(v) With respect to the reply dated 19.02.2009 by Mr. S.P.
Darad, Advocate, it was stated that it did not contain counter
signature of the Principal Defendant and there was no question
of any settlement out of court. It was also asserted that Mr. S.P.
Darad, Advocate had played a dual game with Principal
Defendant which clearly showed that he had replied on
19.02.2009 on behalf of the Principal Defendant against the
legal notice dated 27.01.2009 issued on behalf of the plaintiff.
On the other hand, S.P. Darad had issued legal notice dated
27.07.2011 to the Principal Defendant on behalf of the plaintiff
and thus, it was sought to be projected that the concerned
Advocate was acting on behalf of both the parties. It was stated
that the Principal Defendant never empowered Mr. P. Rajgopal
as Project Manager of him for any negotiation at any point of
time and no correspondence was made by the plaintiff. The
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plaintiff was asked to put into strict proof thereof. It was also
stated that the plaintiff had not performed any obligation of the
fraudulently procured so called Agreement/MoU and was
terminated by the Principal Defendant at very initial stage and
intimated to the plaintiff in view of breach of trust on his part.
The Principal Defendant also disclosed that M/s Struck Mech
Engineers provided structural fabrication drawing for the said
work and was paid Rs. 38,913/- vide cheque No. 75422, Axis
Bank, Naya More Branch which was cleared on 03.04.2008 and
thus the payment to M/s Struck Mech Engineers was made
directly by the Principal Defendant to the said person. It was
stated that the plaintiff approached proforma defendant showing
manipulated authorization and the officials of proforma
defendant immediately called upon the principal defendant and
told that any involvement of the plaintiff will cast adverse effect
on the work and the acts and deeds of the plaintiff in sister
concern of this firm was found fraudulent and was debarred
from any participation in B.S.L. (proforma defendant). It was
stated that similar MoU was entered into between Shiv Durga
Para Mount Industry a sister concern of the plaintiff in which
the so-called CEO submitted all the false experience certificate
which was found to be false and such firm was debarred from
B.S.L.(proforma defendant) and the so-called CEO is the
signatory in both the firms. The Principal Defendant asserted
that the MoU was terminated at the very initial stage as the
plaintiff did not perform any part of the obligation under clause
2, 3, 5, 6 and 8 of the said MoU. The defendant also questioned
the fact that the plaintiff had claimed for an amount of Rs.
24,72,178/- before the permanent Lok Adalat vide his
application dated 22.11.2011, then however now, he is claiming
an amount of Rs. 62,77,385/- and such claim was not clear.
(vi) In paragraph 27 of the written statement, it has been stated
that the MoU (Annexure VIII e) does not contain the signature
of witness No. 1 and the signatures of the executants have not
12
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been identified by any Advocate. Further, the MOU was not
authenticated by Notary Public, Bokaro rather the same is
attested by the Notary Public. It was stated that in the reply, the
notice date of MoU was mentioned as 11.09.2008 while no
such MoU was executed between the parties and again it was
alleged that the concerned Advocate Mr. S.P. Darad had played
a fraudulent game in connivance with the plaintiff.
Case of Bokaro Steel Plant (Proforma Defendant)
6. So far as proforma defendant is concerned, they also filed a
separate written statement and asserted that there was no valid reason
to drag defendant No. 2 in the present suit and the suit could have
decided even in absence of defendant No. 2. It has been asserted that it
appears that the plaintiff had impleaded defendant No. 2 as a proforma
defendant for the purposes of seeking an ad-interim injunction against
it in making any payment to Principal Defendant by way of settlement
of dues, if any, for the work executed by Principal Defendant which
was not legally tenable. It has been asserted that there was no privity
of contract between the plaintiff and the defendant No.2 and therefore
the defendant No. 2 does not deserve to be restrained by way of
permanent or ad-interim injunction in making payment of any amount
legally due to principal defendant. A prayer was made that it be held
that the suit was bad against defendant No. 2 and the plaintiff is not
entitled for any permanent or ad-interim injunction.
7. On the basis of pleadings of the parties, the learned Trial court
framed the following issues: –
1. Is the suit as framed maintainable?
2. Is the plaintiff has got valid cause of action for the
suit?
3. Is the suit barred by law of limitation?
4. Is the plaintiff paid required court fee?
5. Is the suit bad for non-joinder or mis-joinder of
parties?
6. Is the plaintiff entitled for a decree to the tune of Rs.
62,77,385/-?
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7. Whether the plaintiff had been employed by the
defendant to perform the technical job under the
contract no. T & C(C)/IPU-278/445/4089 dated
13.11.2007 and the contract agreement no. BSL/T &
C/Civil/5449/AGT-1209 dated 26.03.08?
8. Is the plaintiff entitled to get any relief or reliefs in
the suit?
8. After considering the materials on record, the Issue No. 03 was
decided against the plaintiff and it has been declared that the suit is
barred by limitation; the plaintiff has not performed his contractual
obligations as per agreement dated 11.09.2007, therefore, the Issue
No. 06 and 07 were decided against the plaintiff and the suit was held
to be not maintainable and the plaintiff has no valid cause of action
and accordingly, the Issue No. 1, 2, 4, 5 and 8 were adjudicated
against the plaintiff and in favour of the defendant.
9. Arguments of the appellant (plaintiff)
I. The plaintiff’s suit is for money to be paid by the contesting
defendant/respondent no.1 M/S Udya Brothers. The claim
arises out of MOU/agreement dated 11.09.2007 between the
two (Exhibit- 5). Payment clauses is clause 7, which said that
15% of the value of the money received by the contesting
defendant from the Bokaro Steel Plant (proforma defendant)
shall be passed on to the plaintiff. The money to be received by
the contesting defendant is in relation to a contract given by the
proforma defendant to the contesting defendant. The 15% to
be paid to the plaintiff was owing to certain services rendered
by the plaintiff before and after execution of the
MOU/agreement dated 11.9.2007. The services to be provided
by the plaintiff are by and large in the nature of consultancy.
The fact that pre-MOU performances shall also attract payment
is evidenced from clause 2 of the MOU. As per clauses 1, 2, 3,
4 & 5 (both clauses 5), the specific performances done or
expected to be done are submission of techno commercial offer
by plaintiff in the name of the contesting defendant, preparation
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and submission of Techno ccommercial discussions and
clarifications, arranging design and engineering, provide
technical supervision, coordination, correspondences,
preparation and submission of bills, project monitoring and
progressing/arrangement of drawings.
II. A reference has been made to paragraph 17 and 27 of the plaint
to submit that the plaintiff’s case is that it has performed the
works and it is submitted that the said pleadings are supported
by evidence on record. The evidence of P.W.1 Ajay Kumar
Singh, who happens to be an ex-employee of Techno Expo who
was in service at the time of performance, deposed in para 4
and 5 about execution of the MOU between the plaintiff and
contesting defendant (principal defendant) and performances by
plaintiff, including preparation and submission of bids in the
proforma defendant, carrying out all formalities with regard to
the same. PW2 Satish Kumar Sharan is a former DGM of
Bokaro Steel Ltd, who was taking care of the zone SMS and
power plant during the relevant period and was workshop in-
charge in 2010-2011. In paragraph 5 he deposed that the
contract work given by BSL was being done under him. In
Pparagraph 6 he confirmed that the plaintiff was performing as
technical expert on the site on behalf of the Principal Defendant
in relation to the work and used to participate in all meetings in
his office and render consultation on behalf of the Principal
Defendant. In his cross-examination the defendants have got it
further confirmed that he was taking care of the work from the
year 2007 which he continued to do till his superannuation on
30.6.2011. The proprietor of the plaintiff firm Shri Ramdev
Singh deposed as PW3 and in paragraph 5-11 confirmed the
facts claimed by him in the plaint.
III. Notably, the proforma defendant filed its written statement in
which it did not deny the claims of the plaint, particularly those
relating to SAIL, for example as made in paragraphs 8, 9, 17
and 27. By invoking the doctrine of non-traverse, facts may be
15
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treated as admitted by the proforma defendant, and the contrary
picture projected by the contesting defendant may be treated as
falsified. The fact that the principal defendant has come up
before the court is speaking falsehood established from its
blatant and complete denial of all the factual statements made in
the plaint in relation to the performances. The documentary
evidences to some extent prove that such performances had
happened. For example, one such claim of the plaintiff is that it
had been authorized by the contesting defendant, which has
been denied by the contesting defendant, but has been duly
proved by the plaintiff by proving the authorization document
as Exhibit 2 dated 19.2.2007. This may be considered in light of
the letters dated 6.6.2007 and 8.6.2007 which have been
marked as Exhibit 3 & 4, which were letters written by the
plaintiff to the proforma defendant for affording chance to give
revised bid. But for the authorization and for the contractual
obligation to perform pursuant to such authorization, the
plaintiff’s act of writing such letters cannot be explained by the
principal defendant except as having been done for the principal
defendant in terms of the MOU relating to the performance
terms of the MOU. Certain documents filed by way of
additional evidence also establish instances of performances.
IV. Once the plaintiff has been able to prove that there were certain
performances made, which can only trace its source to the
MOU obligations, the entitlement to 15% under clause-7 of the
MOU will trigger. The onus then shifts to the contesting
defendant to show as to what was not performed, which would
dis-entitle the plaintiff from part of the 15% due. The contesting
defendant having ventured to make absolute denial, has failed
to discharge its burden. The risk run by the principal defendant
in not coming to the court with clean hands and take a false
stand of complete denial should operate against it and to the
benefit of the plaintiff.
16
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V. The contesting defendant has argued that 15% is unreasonable
and certain stray and vague instances have been given as to the
profit margin in other contracts of CPWD, Railways, etc. Such
a plea is fit to be rejected. It is not for the court to rewrite the
contract between the parties. The MOU clause will bind, and in
commercial world it can’t be presumed that 15% would be the
profit margin of a party or 15% share to be passed on to a
consultant would be unreasonable or unacceptable.
VI. Having established that the contract was performed and the
entitlement to consideration was earned, comes the next issue
of payment. The payment has admittedly not been made to the
plaintiff. The contesting defendant has heavily relied upon the
plaintiff’s failure to prove its bills. The MOU dated 11.09.2007
(exhibit-5) does not speak about bills as being a mandatory
requirement. In any case the demands made by letter/legal
notice has been proved. The denial by principal defendant in
writing establishes that there was a demand in writing. The dues
should be therefore directed be paid with interest which is the
normal and natural accretion to the principal sum because of
unlawful retention on part of the defendant.
VII. The issue of limitation has been raised by the contesting
defendant. It is founded upon the fact that according to the
plaintiff the payments were received by the contesting
defendant from the proforma defendant lastly on 20.1.2009,
whereas the suit has been instituted by presentation of plaint on
28.4.2012, which is beyond three years. The principal defendant
has relied upon the clause of the MOU and the claim of the
plaintiff based on the same, to the effect that as per clause 7 of
MOU the plaintiff was to get payment “immediately on receipt
of cheque from BSL”, which means that the running of
limitation triggered on the date when the payment was received
from the proforma defendant by the contesting defendant. It is
submitted that such argument is incorrect and based on
incorrect appreciation of the provisions of the Limitation Act.
17
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VIII. The plaintiff’s answer is that this suit shall be governed by
Article 54 which speaks about suit for specific performance of a
contract. According to the plaintiff, the contract was for
payment of money to the tune of 15%, and on its breach the
plaintiff has sued for specific performance of the said
obligation. Accordingly, the period of 3 years would start
running from the date fixed for performance, and in case no
such date is fixed, it will run from the date when the plaintiff
has noticed that the performance is refused. In the present case
the word used in the contract, is “immediately”, which is vague
enough not to admit of any specific date which can be said to
have been fixed in the contract for performance.
IX. It is to meet this type of case that Article 54 has been designed
in the fashion it is (2 Alternatives). Therefore, the relevant date
would be the date on which there is notice of refusal to perform.
Going by that, “20.06.2011”, shall be the date of refusal, which
stands admitted by the DW-1 in paragraph 8 of his deposition.
This admission by defendant witness supports the statement of
the plaintiff in paragraphs 30 and 47 of the plaint.
X. The claim of the contesting defendant that there was
termination letter given earlier to the plaintiff has been denied
by the plaintiff and in any case the termination letter has not
been proved by the defendant. Secondly, on the issue of
limitation the plaintiff has humbly relied upon the judgments in
Rashtriya Ispat Nigam Limited Vs. Prathyusha Resources &
Infra Private Limited & Ors. (2016) 12 SCC 405-paragraph 5
and Major (Retd.) Inder Singh Rekhi Vs. Delhi Development
Authority: (1988) 2 SCC 338 -paragraph 3, 4 & 5, which
support the contention that it is only after the refusal to make
payment that the limitation starts running. Therefore, even if the
other clauses of the Limitation Act has been the subject matter
of those judgments but the same are being pressed into service
as it is the date of refusal which shall be treated as the date on
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which the right to sue has accrued. The suit has been filed well
within three years from 20.6.2011.
XI. Notably, a five judge bench of the Hon’ble Allahabad High
Court in the case of Udayapal Singh Vs. Lakhmi Chand-
(1935) SCC OnLine All 240 relevant at page 301 & 302 has
held that it is the duty of the court to maintain a suit as within
limitation if it appears from the records to be within limitation,
regardless of the plea of limitation set up or not set up or not
correctly set up by one or other party. Cue may be taken from
Section 3 of the Limitation Act, 1963 which provides for the
converse, namely the duty of the court to dismiss a suit which
appears to be barred by law of limitation from the records
available, regardless of the plea of bar of limitation being set up
or not being set up by the defendant.
XII. It is submitted that in view of the aforesaid submissions, the
appeal be allowed and the suit be decreed.
10. Arguments of the Principal Defendants/Respondents
A. The Plaintiff/ Appellant herein had filed the suit, registered as
Money Suit No.23/2012, before the Civil Judge Senior Division 1st,
Bokaro, seeking inter alia a decree for Rs. 62,77,385.50 in favour of
the Plaintiff and against the Principal Defendant. The Plaintiff has
alleged to have provided the details of Rs. 62,77,385.50 at Schedule
– A to the Plaint. However, there is no such Schedule – A to the
Plaint. One calculation chart, titled as Schedule – A, has been
exhibited as Exhibit -1 in the suit.
B. The Plaintiff is claiming the said money from the Principal
Defendant on the basis of the Memorandum of Understanding
(“MOU”) dated 11.09.2007(Exhibit – 5) allegedly entered between
the Plaintiff and the Principal Defendant. According to the Plaintiff,
they are entitled to get 15% of the total money received by the
Principal Defendant from pro-forma defendant in relation to the
aforesaid work.
C. The Plaintiff has alleged to have raised four invoices dated
10.11.2008, 05.12.2008, 20.01.2009 & 30.04.2009 claiming money
19
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from the Principal Defendant and has stated the denial of payment of
the said invoices as the cause of action for the suit.
D. The following are the major points for consideration: –
Suit is barred by limitation
E. It is submitted that the said suit filed by the Plaintiff is barred by
limitation and the same has been rightly held in the Impugned
Judgment at internal pages 29 – 31.
F. The claim of the Plaintiff is for money against the price of alleged
work done by the Plaintiff pursuant to the said Memorandum of
Understanding (“MOU”) dated 11.09.2007(Exhibit – 5). Article 18
of the Schedule to the Limitation Act, 1963, is the relevant provision,
which provides for the period of limitation and the date from which
such period will start, for such monetary claim of the Plaintiff. As
per Article 18, the time period is three years in case the suit is for the
price of work done by plaintiff for the defendant where no time is
fixed for payment, and the said time period would begin to run from
the time the work is done.
G. Time would mean a certain day as explained in Section 47 of the
Contract Act, 1872. In the present case, there is no certain day fixed
for payment. The relevant clause for payment in the said
Memorandum of Understanding (“MOU”) dated 11.09.2007(Exhibit
– 5) is Clause 7. The said clause does not specify a certain day for
payment, it provides that the payment shall be made on the
happening of an event i.e. on receipt of payment from pro-forma
defendant. Thus, Article 18 would be applicable for the purpose of
limitation in the suit.
H. Further, as per Article 18, the time period of three years would begin
to run from the period when the work is done by the Plaintiff. In the
present case, it has been alleged by the Plaintiff that the Principal
Defendant had received money from pro-forma defendant on
13.08.2008, 22.08.2008, 22.10.2008 and 01.01.2009 (Paragraph 29
of the deposition of the Plaintiff). Accordingly, all the alleged work
would have been done by the Plaintiff prior to 01.01.2009. However,
even considering 01.01.2009 as the alleged date of work done by the
Plaintiff, the suit is barred by limitation as the period of 3 years from
01.01.2009 had expired on 31.12.2011 and the suit was filed on
28.04.2012.
20
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MOU, under which money is being claimed by Plaintiff, was
already terminated on 15.10.2007
I. The Plaintiff is claiming money for the alleged work done under the
said MOU dated 11.09.2007 (Exhibit – 5), but it was already
terminated by the Principal Defendant vide its letter dated
15.10.2007 ( Exhibit – B) with immediate effect wherein it was
categorically stated by the Principal Defendant that the
Memorandum of Understanding (“MOU”) dated 11.09.2007(Exhibit
– 5) was signed by the Principal Defendant under pressure and
misrepresentation by Plaintiff and the Plaintiff was requested not to
be in contact with pro-forma defendant in relation to the work under
the said MOU. The termination letter dated 15.10.2007 ( Exhibit –
B) was received by an employee of the Plaintiff, Mr. B.K. Mishra,
who is also a signatory, as witness, to the said MOU. The said fact
that the termination letter was received by the Plaintiff has been
proved by Defendant Witness No.2, namely P. Raj Gopal, at
paragraph 7 and 10 of his deposition. The fact of termination of the
said MOU has also been proved by Defendant Witness No.1, namely
P.K.Udhaybhanu, at paragraphs 7, 8 and 10 of his deposition.
J. When the said MOU itself was terminated in one months’ time from
the date of MOU, there is no question of any work being done by
the Plaintiff under the said MOU and also there is no question of any
payment being made under the said MOU.
Plaintiff has not performed the work as required under the said
MOU and has accordingly failed to prove the such performance.
K. Without prejudice to the aforesaid arguments, it is submitted that the
said MOU (Exhibit – 5) at Clauses 3, 5, 5, 6 and 8, provides various
works which were required to be performed by the Plaintiff. Some of
such works were to be performed by the Plaintiff at the site of work
which was within Bokaro Steel Plant. It is submitted that the
Plaintiff/ Appellant herein has failed to produce or prove any gate
pass, which it was required to have, in order to enter the premises of
Bokaro Steel Plant for carrying out the required work at Bokaro
Steel Plant. This categorically proves that the Plaintiff never
performed the required work at Bokaro Steel Plant of the pro-forma
defendant.
21
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L. Further, the Plaintiff has also failed to prove the performance of
most of the other works which it was required to perform under the
said MOU. On the contrary, the witnesses on behalf of the Defendant
No.1, specifically Defendant Witness No.2, namely P. Raj Gopal,
has deposed, at paragraph 7 of his deposition, that the Plaintiff has
not performed the required works under the said MOU. Further, the
fact that the Plaintiff has not performed the required works under the
said MOU has also been proved by Defendant Witness No.1, namely
P.K.Udhaybhanu, at paragraphs 7, 27 and 28 of his deposition.
M. The Plaintiff has only filed one document along with its interlocutory
application for additional evidence, allegedly issued by M/s Struc-
Mech Engineers, to show that the Plaintiff collected some drawings
from M/s Struc-Mech Engineers and for which drawings the
payment was made by the Principal Defendant. Firstly, it is
submitted that the said document is fabricated and not genuine as it
does not contain the stamp or seal of M/s Struc-Mech Engineers nor
does it state the designation or the authority of the person who has
allegedly signed on behalf M/s Struc-Mech. Also this document does
not show to whom it is addressed or what is the purpose of issuing
such document.
N. Secondly, it is to be considered that the Plaintiff has not paid any
amount to M/s Struc-Mech Engineers against the issuance of such
drawings. If that would have been so, the Plaintiff ought to have filed
its bank statements showing payment to M/s Struc-Mech Engineers,
but Plaintiff has filed no such document. Payments to M/s Struc-
Mech Engineers have been made by the Principal Defendant.
Accordingly, the said document does not provide much help to the
case of the Plaintiff.
O. The Impugned Judgment has also correctly given the finding that the
Plaintiff has failed to prove that it has performed the required work
under the said MOU.
Plaintiff has failed to prove the four invoices
P. As can be seen from paragraph 47 of the Plaint, the substantial cause
of action for the said suit is the denial of payment by the Principal
Defendant to the alleged four invoices, dated 10.11.2008,
05.12.2008, 20.01.2009 & 30.04.2009, of the Plaintiff. However, it is
22
( 2025:JHHC:10878 )
to be considered that the Plaintiff has failed to prove even its own
said four invoices.
Additional Evidence may not be permitted
Q. In respect to the issue of additional evidence, sought to be adduced
by the plaintiff-Appellant, the respondent/Principal Defendant has
referred to the reply filed to I.A No. 2067/2024. That the Hon’ble
Supreme Court of India through its various decisions has settled
the instances where any additional evidence can be adduced at an
appellate stage under Order 41 Rule 27 CPC. Reliance has been
placed on the judgement of the Hon’ble Supreme Court in the case
of A. Andisamy Chettiar v. A. Subburaj Chettiar [(2015) 17 SCC
713], para 12, onwards.
R. It is submitted that additional evidence may not be admitted and
the appeal be also dismissed being devoid of any merits.
11. After hearing the learned counsel, the Points for determination by
this court are as under :-
1) Whether the suit is barred by limitation?
2) Whether the plaintiff performed any work for the Principal
Defendant pursuant to Memorandum of Understanding (“MOU”)
dated 11.09.2007(Exhibit – 5)?
3) Whether the plaintiff is entitled for a decree to the tune of Rs.
62,77,385/- as claimed?
Evidence of the plaintiff
12. The plaintiff examined following witnesses in support of its
case:
(i) P.W. No. 01 - Ajay Kumar Singh
(ii) P.W. No. 02 - Satish Kumar Sharan
(iii) P.W. No. 03 - Ramdev Singh
13. PW.1 Ajay Kumar Singh stated that he knew both the parties
and had full knowledge with respect to the case and that the plaintiff
has filed the case for recovery of dues from the principal defendant
no.1 . He has stated that the plaintiff and the Principal Defendant
entered into a MOU-cum-working agreement dated 11/9/2007 by
virtue of which both were to work together for participation in tender
and execution of work of the proforma defendant. The work was
23
( 2025:JHHC:10878 )
related to civil structure and electrical works for BC Bay extensive for
new turbo blow in TPP at Bokaro Steel Plant of BSL relating to
Tender No. BSC (C-278). The work order of the said tender was given
to the Principal Defendant and on the basis of the aforesaid agreement
between the parties the Principal Defendant was to submit the technical
and commercial offer with the help of the specialized knowledge of
the plaintiff and the plaintiff acted accordingly and helped the Principal
Defendant in submitting the tender. It was agreed between the parties
that as and when cheque relating to the work is issued in the name of
Principal Defendant by proforma defendant, then the Principal Defendant
shall give cheque to plaintiff after adjustment of deduction of taxes
etc. and after adjustment of expenses to the extent of 15% of the
remaining amount. It was stated that earlier also such agreements were
entered into between the parties and the Principal Defendant had paid
amount to the plaintiff for extending technical assistance. Four
cheques were issued by the proforma defendant to the Principal
Defendant in connection with the present work but the Principal
Defendant did not pay any amount to the plaintiff and then the
plaintiff asked for the amount but neither the Principal Defendant
answered nor paid the amount to the plaintiff. The contract price is
about Rs. 2,62,77,764/- ,out of which defendant No.1 had received Rs.
2,04,81,187/- from proforma defendant but has not paid any amount
to the plaintiff and the plaintiff was entitled to 15% as per the
contract based on the aforesaid MOU, along with interest and the
defendant no.1 has violated the terms and conditions of the MOU
dated 11.09.2007.
In his cross-examination, he stated that he used to work with
the plaintiff earlier from the year 2004 to 2014 and this case has been
filed for unpaid amount of Rs. 3,00,000/-. He could not recall the date
of filing tender by the Principal Defendant. He further admitted that the
design and detail of aforementioned work was prepared by EENG
STRU CSMECH ENG, Ranchi and that plaintiff works with other
companies apart from Principal Defendant but no such evidence was
filed as he is no longer working with the plaintiff. In para 25 he
24
( 2025:JHHC:10878 )
admitted that the plaintiff is registered in the service tax and also
registered under Shops and Establishment Act but denied to know the
registration number and stated that the plaintiff is registered under
sales tax had filed income tax return in the year 2014 but did not know
the income of the plaintiff. In para 27 he denied to know the amount
of money invested in the work order by the plaintiff and denied to be
able to file any document relating to the same. He denied to know the
date of the bills given by the plaintiff to the Principal Defendant and did
not know as to when his CEO visited the project for inspection. He
has stated that for the purposes of the inspection of the work, the
authorities of CISF have issued passes but he had no proof of the same
and that he could not say as to when such passes were issued. He
denied the suggestion that the plaintiff had no experience to do such
sort of work economically.
14. PW. 2 Satish Kumar Sharan, is the retired employee of the
proforma defendant and stated that he knew both the parties and he
had knowledge about the case. He stated that the Principal Defendant
got the work order dated 13.11.2007 from the proforma defendant and
the plaintiff has claimed the amount on the basis of MOU for
rendering assistance in connection with the work. He stated that he
was supervising the work of SMS and Power Plant in that zone and he
was the Zonal in-charge of that Shop in the year 2010 to 2011 and the
work order was being executed under him and in para 6 he stated that
the plaintiff, on behalf of the Principal Defendant used to assist on the
site, attend the meeting regarding that work order and give advice in
the capacity of technical expert and that the plaintiff had informed him
about the MOU and the amount payable to the plaintiff in terms of the
MOU and regarding non-payment by the Principal Defendant after
violating the norms of MOU.
During his cross-examination, he has deposed that he knows
the defendant No.1 as he is the Contractor of (proforma defendant)
BSL and had no idea as to whether the plaintiff had invested any
amount in the project. He retired from BSL on 30/06/2011 and he
used to supervise the work from the year 2007 till his retirement. But
25
( 2025:JHHC:10878 )
he denied to have filed any document for the same and also denied to
know what happened after his retirement. He has categorically stated
that in order to enter the premises of BSL pass is required and he did
not know as to whether any gate pass was issued to the plaintiff. He
could not state the date of any meeting but stated that the meetings
used to be conducted in his office in Steel and Power zone but was
unable to furnish any document regarding the meetings. He also
denied to know that whether the plaintiff is a registered firm. In para
30, he admitted that the plaintiff was employee of BSL Plant and has
retired and could not say the date of his retirement and denied the
suggestion that he was deposing on behalf of the plaintiff as the
plaintiff was an employee of BSL -proforma defendant.
15. PW. 3 Ramdeo Singh is the plaintiff of the case. He has
exhibited his plaint as exhibit-1 and has stated that he has filed the suit
for recovery of due money. He stated that the principal defendant
invited him to accept an offer as defendant no.2 was going to invite a
tender and asked the plaintiff to assist and co-ordinate preparing the
bid and if the project is issued in favour of the principal defendant
then the plaintiff would work with the Principal Defendant till the
work is over. The plaintiff accepted the proposal and assisted the
Principal Defendant by giving his total technical information and
prepared all the documents relating to tender. He has exhibited
Ext.2, [ the authority letter dated 19/02/2017] a copy of the letter
issued by the Principal Defendant and addressed to DGM Project in-
charge, tender and claims, SAIL, BSL, Bokaro; Ext.3 which is a
letter dated 6/6/2007 written by the plaintiff on behalf of the Principal
Defendant to DGM in-charge regarding revised price bid under his
signature; Ext. 4 which is a letter of the plaintiff on behalf of the
Principal Defendant dated 8/6/2007 to DGM, tender and claim for
revised price bid. He has stated that the aforesaid documents would
show that he was authorized to deal with defendant no.2 on behalf of
the Principal Defendant for giving technical assistance and this was
within the knowledge of the defendant no.2.
26
( 2025:JHHC:10878 )
He has further stated that in lieu of providing technical assistance, Ext.
5 i.e. MOU dated 11/09/2007 was entered into between in between the
plaintiff and the Principal Defendant under their signatures and as per
the MOU, the plaintiff would be entitled to receive 15% of the cheque
amount which will be received by the Principal Defendant from
defendant no.2 for the contract and it has also been clearly stated as to
the nature of work the plaintiff has to perform in connection with the
contract. It has also been stated that the Ext. 5 i.e. MOU dated
11/09/2007 was prepared before Notary and in presence of B.K.
Mishra and they have signed as witness. and has also exhibited four
other MOUs as Ext. 6 to Ext.6/3. He has stated that he continued to
work as per the Ext. 5 i.e. MOU dated 11/09/2007 but the Principal
Defendant did not pay 15% of the cheque amounts received from the
defendant no.2. He has produced photocopy of the four cheques
received by the Principal Defendant from defendant no.2 marked
exhibit X to X/3 for identification. He has exhibited a legal notice
dated 27.01.2009 issued to the Principal Defendant in connection
with payment which has been marked Y for identification and he has
also produced the reply of the legal notice sent by an Advocate
namely, S.P. Darad dated 19.02.2009 marked exhibit Y/1 and has
referred to the content of the reply and stated that the entire
arrangement between the plaintiff and the Principal Defendant stood
admitted and acknowledged and be referring to the said reply he has
stated that in the reply it has been stated that the plaintiff had provided
technical assistance prior to the contract and in lieu of such assistance
also payment will be made to the plaintiff. It has been stated that
almost 80% work was over and payments have been received by the
Principal Defendant but the Principal Defendant has not paid any
amount to the plaintiff. He has stated that prior to submission of tender
he has outsourced the work to get structural design and drawing
prepared by a third party and also paid to the third party and has stated
that he had engaged a retired employee of the defendant no.2 namely,
Mandhata Singh [ retired from the post of DGM] for the work . He has
admitted that he did not make any investment in the project as there
27
( 2025:JHHC:10878 )
was no such emergent situation and therefore the plaintiff has not
stated anything about reimbursement. He has stated that he played an
active role in the matter of execution of the work and also in the
matter of preparation, processing and payment of the bills to Principal
Defendant by the defendant no.2 and the Principal Defendant received
the payment from the defendant no.2 on 13.08.2008, 22.08.2008,
22.08.2008 and 01.01.2009, a total of more than Rs. 2.4 crore. He has
also stated that in the letter dated 20.06.2011 the Principal Defendant
has mentioned about termination of the Ext. 5 i.e. MOU dated
11/09/2007 but the plaintiff has not received any such letter of
termination and otherwise also there is no termination clause in the
Ext. 5 i.e. MOU dated 11/09/2007. This witness has also mentioned
that the matter was taken up by the permanent Lok Adalat but nothing
materialised and a reply to the reply sent by S.P. Darad was sent vide
notice dated 14.03.2009 (marked Y/2) asking for payment but no reply
was received. He has referred to the schedule A of the plaint and
claimed the amount mentioned therein. This witness was fully cross
examined.
On recall , this witness has produced Ext. 7 i.e. original letter dated
28.05/2007 filed by plaintiff in the capacity of signatory of Udya
brothers to DGM (P) I/C T & C, BSL regarding approval of price
taxes and duties, Ext. 8 and 8/1 i.e. Caveat Petition no. 01/2009, filed
in the court of Munsif, Bokaro by the defendant and Caveat Petition
No. 02/2009 filed in the court of Sub-Judge-I, Bokaro by the
defendant, Ext.9 and 9/1 are true copy of original letter dated
15/11/2007 sent by Manager of plaintiff, namely, B.K. Mishra To
DGM (P), BSL under his signature and true copy of fax letter dated
06/12/2007 sent by AGM(P), Civil, BSL to the defendant no.1
through B.K. Mishra .
Ext. 10 to 10/3 those are original letter dated 14/05/2007 sent by the
plaintiff in the capacity authorized signatory of the Principal
Defendant to DGM (P) in-charge T & C, BSL regarding supply of
signal lamp post and revised price in his signature, true copy of letter
dated 6-8/10/2007 sent by the plaintiff on behalf of Principal
28
( 2025:JHHC:10878 )
Defendant to DGM(P) in-charge tender and claim, BSL. True copy of
letter dated 2/7/2007 sent on behalf of Udaya Brothers to G.M,. (P),
BSL, written by P. Rajgopal of the Principal Defendant and original
letter dated 11/04/2008 sent by the plaintiff in the capacity of
authorised signatory of the Principal Defendant to DGM in-charge,
BSL regarding Civil Structural Drawing, the copy of the same has
been sent to DGM in charge Utility and Services and Ranchi and Ext.
11 i.e. original copy of power of attorney dated 4/11/2007 under
signatures of the plaintiff and partner of the Principal Defendant, Mr.
P.K. Udayabhanu.
In his cross-examination, he admitted that Techno Expo is
proprietor ship company that has been registered since 2004, has not
been included in the panel of BSL. He stated the tender no. of BSL as
9PU 278, but denied to know when was tender notice issued and again
admitted that it was issued in December, 2006. In para 42 he admitted
that the tender paper was submitted in BSL on which he has not
signed but it was purchased by his representative Mr. Ajay Kumar
Singh, who was appointed as the Project Manager. In para 45 he
admitted that the letter that was sent by BSL dated 4/6/2007 was
addressed to Principal Defendant and admitted that he did not get any
receiving number regarding submission of letter dated 6/6/2007 but
stated that it was received. He further admitted that letter to BSL
dated 8/6/2007 has been faxed and the copy of receiving has been
filed by him in the court and denied the suggestion that it is forged. In
para 50 he admitted that there is no document given by BSL regarding
authorisation as mentioned in para 12 of his testimony and denied the
suggestion that he was never authorised by the Principal Defendant. In
para 52 he admitted that there is no clause regarding the specification
of percentage of profit given by CPWD in any work. He further stated
that technical commercial offer was prepared by him but he has not
filed any proof for that in the court. In para 58 he admitted that he has
not received any order or contract from BSL directly. In para 59 he
admitted that he has voluntarily retired from BSL in the year 2001. He
further stated that the site work of the work order was initiated from
29
( 2025:JHHC:10878 )
June, 2007 and denied to know the exact date. He further stated that
the bid was submitted by his company’s Project Manager Mr. Ajay
Kumar Singh and Mr. Raj Gopal of the Principal Defendant but he has
not submitted any proof regarding the same in the court. He also
stated that he had submitted the detailed fabrication drawing on behalf
of the Principal Defendant in BSL but has not filed any proof in the
court. He further stated that after initiation of the project and there are
document relating to the correspondence but he has not filed the same
in the court, however, he can file if directed by the court. He also
stated that BSL has considered that the plaintiff was authorized but
has not given any letter regarding this. In para 67 he admitted that he
has not signed on the measurement book as an authorized person of
the Principal Defendant as he was not authorized for the same. He
further admitted that the detail was designed by struck Mech
Engineering Mecon Batika, Singh More, Ranchi, and stated that the
cheque was handed over to the said designer by him. He further stated
that some clerk of BSL has signed over the Ext.3 but there is no stamp
of any office over the same and he does not know the name of the
signatory. He has stated that the original letter dated 11th September
2007 (Ext.5- the MOU ) was with the defendant no.1 which has been
received by him on 23/12/2007 and it was with the Principal
Defendant from 11/09/2007 to 23/12/2007. In para 72, he admitted
that the witness No.1 in Ext. 5 i.e. MOU dated 11/09/2007 is the
officer of Principal Defendant and witness no.2 was employee of the
plaintiff.
In para 73 he stated that apart from letter dated 08/06/2007 he has no
letter from BSL regarding his meeting with any authority of BSL. In
para 74, he admitted that there is letter or reply issued by BSL in the
name of the plaintiff for tender No. T & C(M) 1PU/278. He also
denied to know total expenditure in completion of the tender.
He denied the suggestion about giving of false experience certificate
while he was employed as Chief Executive Officer in Shiv Durga Para
Mount. He further stated that gate pass was issued by BSL for this
work order but he has not filed in the court. He further admitted in
30
( 2025:JHHC:10878 )
para 81 that after MOU dated 11/9/2007 he has not submitted any
document to BSL regarding this tender and only submitted the
drawing that has been prepared by Struck Mech Engineering and has
not received any receipt for such deposit. In para 83 he has stated that
BSL has not issued any identity card as the authorized person of the
Principal Defendant. In para 84 , 85 and 86 he has admitted that in the
legal notices issued by both the parties there is no signature of the
plaintiff and the Principal Defendant. He further stated in para 96 to
99 that the cheque relating to the payment by BSL was received by
him from Accounts Dept. of BSL by concerned dealing officer as the
authorised person but there was no such authorisation letter. In para
100 he admitted that it is not written over the Ext.2 that a copy of the
same has been given to the plaintiff company. He has stated in para
101 that he is not aware as to whether he has submitted any document
with regards to any work after issuance of Ext. 5 i.e. MOU dated
11/09/2007.
16. The plaintiff filed following documents as documentary
evidences to prove its case and all the documents were marked with
objections:
Sl. Exhibit/Mark for Description of documents (With
No. Identification Objection)
1. Exhibit-1 Plaint
2. Exhibit-2 Original Authorization dated
19.02.2007.
3. Exhibit-3 Original Letter dated 06.06.2007
4. Exhibit-4 Original Letter dated 08.06.2007
(FAX message)
5. Exhibit-5 True copy of MOU dated
11.09.2007
6. Exhibit-6 to 6/3 Original Agreement dated
09.02.2007, 28.11.2007, 23.09.2007
and 27.09.2007 relating to other
contracts .
7. Exhibit-7 Letter dated 28.05.2007
31
( 2025:JHHC:10878 )
8. Exhibit -8 Caveat Petition No. 01/2009
9. Exhibit-8/1 Caveat Petition No. 02/2009
10. Exhibit-9 Letter dated 15.11.2007
11. Exhibit-9/1 Letter dated 06.12.2007
12. Exhibit-10 to 10/3 Letter dated 14.05.2007,
06.10.2017, 24.07.2007 and
11.04.2008
13. Exhibit-11 Power of attorney dated 04.11.2007
relating to tender notice no. T & C
(M) /IPU -740 (another contract)
14. Mark-X to X/3 Xerox copy of the documents
relating to payment dated
13.08.2008, 22.08.2008, 22.10.2008
and 01.01.2009 issued to the
principal defendant by proforma
defendant (1st to 4th RA Bills said to
be raised by principal defendant)
15. Mark-Y Xerox copy of Legal notice dated
27.01.2009 issued by the plaintiff to
the principal defendant asking for
payment
16. Mark-Y/1 Xerox copy of Reply to Legal
notice dated 27.01.2009 issued by
the plaintiff vide legal notice dated
19.02.2009 issued by advocate S.P.
Darad on behalf of the principal
defendant stating that the principal
defendant was ready to compensate
the plaintiff for the technical
services provided by the plaintiff.
17. Mark-Y/2 Xerox copy of Legal notice dated
19.03.2009 issued by the plaintiff in
response to the reply of the
principal defendant dated
32
( 2025:JHHC:10878 )
19.02.2009
Evidence of the Principal Defendants
17. The Principal Defendant adduced following witnesses in
support of its case;
(a) D.W. No. 01 – P.K. Udaybhanu
(b) D.W. No. 02 – P. Rajagopal
(c) D.W. No. 03 – Pankaj Kumar
18. D.W. No. 01 (P.K. Udayabhanu) representing the Principal
Defendant has admitted that principal defendant got the contract from
the proforma defendant pursuant to tender dated 27.12.2006 and at the
request of the plaintiff, the plaintiff was to give assistance in
connection with the contract but stated that no assistance was rendered
by the plaintiff. He has further deposed that one MOU Cum agreement
dated 11.09.2007 was brought by the plaintiff but the same was never
acted upon and the plaintiff had committed forgery in the said
agreement by forging the signature of the employee of the principal
Defendant, Sri. P. Rajagopal. He also deposed that the plaintiff took
signature of this witness on the agreement by taking him in
confidence. It was stated that as per general standard of public sector
the profits of contract work is about 10% to 15% of the total work
amount and the plaintiff without the knowledge of the Principal
Defendant got it mentioned in the MOU that plaintiff would be
entitled to 15% of the profit. He deposed that he got structural
fabrication drawing from Struck Mech Engineers and he paid
Rs.38,913/- vide Cheque No. 75422 of Axis Bank, Bokaro Steel City
on 03.04.2008. He further deposed that the plaintiff did not do any
work as per the terms and conditions of the agreement dated
11.09.2007 nor arranged necessary funds for execution of Work Order
and the Principal Defendant cancelled the agreement dated 11.09.2007
and did the work from his own resources. He further deposed that the
Principal Defendant through two letters dated 20.06.2011 had refused
to pay as no work was performed by the plaintiff and that the
33
( 2025:JHHC:10878 )
agreement was already cancelled and that no amount was payable. He
further deposed that the principal defendant got the reply of the legal
notice dated 27.07.2011 issued from his Advocate Sri. Bishwanath
Sharma on 16.08.2011. He also deposed that the firm of R.D. Singh
namely Shiv Durga Paramount Industry has been banned by SAIL,
Bokaro Steel Plant for submission of false bill in Bokaro Steel Plant.
During cross examination, he submitted that he had done another
contract work with the plaintiff and the said contract was done on
percentage basis. He further deposed that he is non-matriculate and he
knew Malayalam language and was having a little knowledge of
English and Hindi language. He further deposed that MOU was
executed on 11.09.2007 and prior to and after MOU, the plaintiff
didn’t do any work.
He further deposed that he did not inform proforma defendant
regarding execution of said MOU nor the plaintiff attended any
meeting in respect of the said contract nor did any work for the said
work order. He further deposed that he did not inform proforma
defendant regarding cancellation of MOU. He further deposed that he
replied the letter of the plaintiff by writing one letter only. He further
deposed that one month after execution of the MOU, he cancelled the
said MOU. He further deposed that after dismissal of R.D. Singh, his
work was being supervised by his engineer P. Rajagopal and other
staffs. He deposed that he took work from all department of proforma
defendant and he had one gate pass and for doing work at different
sites, permission was being taken and the said permission was taken in
writing. He further deposed that he did not know as to whether R.D.
Singh was expert or not but he took R.D. Singh for financial help in
the work. He further deposed that after execution of MOU, R.D. Singh
did not do any work and after one month of execution of MOU i.e.
11.09.2007, the plaintiff was removed. He further deposed that he
entered into an MOU with the plaintiff but he terminated the said
MOU, therefore, he did not give any amount to the plaintiff. He
deposed that he was in possession of the bill and papers in respect of
design of structural engineering of TPP and he had paid for design
34
( 2025:JHHC:10878 )
engineering Rs.38,813/-. He deposed that after structural design, there
was purchase of steel and prior to such structure work civil work was
done by him. He deposed that forgery was made in the agreement
dated 11.09.2007 and in the said agreement, there was no signature of
Rajagopal and forged signature of Rajagopal was made. He deposed
that in agreement dated 11.09.2007, the signature of his engineer
Rajagopal was not there. He deposed that the plaintiff had not given
any amount nor did any work nor made any drawing and he did not
give any authorization to the plaintiff to do these works. He further
deposed that in the MOU dated 23.09.2007 (Exhibit -6) his signature
was there in three pages and that this case was not related to other
MOU dated 23.09.2007 (Exhibit -6).
19. D.W. 2 is P. Rajagopal, the Project Manager of the principal
defendant. He deposed that on the request of the plaintiff, the principal
defendant agreed to take help of the plaintiff in the execution of the
said contract but the plaintiff firm did not extend any help in the said
contract. He further deposed that one MOU cum Working Agreement
was executed on 11.09.2007 which was prepared by the plaintiff but
the said agreement was never acted upon and the plaintiff committed
forgery in the said MOU and in the column of Witness No. 01 his
signature was forged which was earlier marked as Exhibit -5 and
proved the original copy of the agreement dated 11.09.2007 vide
Exhibit No. A (with objection). He further deposed that the principal
defendant in order to complete the contract got the fabrication and
drawing from Struck Mech Engineers, and the Defendant No. 01 paid
Rs.38,913/- to Struck Mech. Engineers through Cheque No. 75422,
dated 30.04.2008. He further deposed that the plaintiff as per the terms
of MOU dated 11.09.2007 did not do any work nor arranged any fund
and owing to that the principal defendant cancelled the MOU dated
11.09.2007 and executed the said work of the tender from his own
resources and he proved the said letter of termination of MOU which
was dated 15.10.2007 and was received by the then employee of the
plaintiff namely B.K. Mishra on 16.10.2007 and he proved the
signature of Sri. P.K. Udayabhanu and Sri. B.K. Mishra on the said
35
( 2025:JHHC:10878 )
letter of termination of MOU and the same was marked as Exhibit -B.
He deposed that after termination of the said agreement, the principal
defendant by two letters dated 20.06.2011 again mentioned regarding
termination of the agreement and also informed the plaintiff that
plaintiff was not entitled to any amount as the plaintiff did not do any
work in respect of the said contract and that the agreement was
already cancelled. He further deposed that the plaintiff got the
signature of the principal defendant by taking him into confidence
without giving factual knowledge of MOU because as per the fixed
standards government/public sector unit, the profits would be 10-15%
of the contract value, whereas, the plaintiff without giving any
information to the principal defendant had written 15% of profits as
his share whereas all the financial and investments including all taxes
had to be borne by the Principal Defendant. He further deposed that
another firm of Mr. R.D. Singh namely Shiv Durga Paramount
Industry was banned by proforma defendant for submission of forged
bill. He further proved the legal notice issued by Sri. S.P. Darad, dated
27.07.2011 as Exhibit-E (with objection).
He was extensively cross examined by the plaintiff but nothing
substantial has been elicited from his cross examination. He deposed
that during execution of work he attended all the meetings and the
MOU was cancelled it is evident that the plaintiff, R.D. Singh, did not
do any work. He further deposed that during price negotiation of the
contract with BSL, plaintiff was not present and in all the documents
which were given did not have the signature of the plaintiff.
20. D.W. 3 is Pankaj Kumar. He deposed that Principal
Defendant got contract work for civil structure and electrical works.
He further deposed that the plaintiff did not extend any work for the
said contract and in order to complete the contract work, the Principal
Defendant got structural fabrication drawing from Struck Mech
Engineers, MECON Ranchi and Struck Mech Engineers, MECON
Ranchi was paid through two bills having amount of Rs.27,052/- and
Rs.11861/- respectively and total amount of Rs.38,813/- was paid by
the Principal Defendant to Struck Mech Engineers, MECON Ranchi
36
( 2025:JHHC:10878 )
and he proved the original bill of payment and the same was marked
as Exhibit-F and F/1 respectively (with objection). He further proved
the original copy of the bank account statement of A/c No.
171010200005340 which showed that by cheque no. 75422, total
amount of Rs.38,913/- was paid to Struck Mech Engineers, MECON
Ranchi and the same was marked as Exhibit-G (with objection). He
further proved photocopy of two letters dated 20.06.2011 by which the
plaintiff was informed regarding cancellation of MOU and since no
work was done by the plaintiff, therefore, no amount was dues and
these two letters dated 20.06.2011 were marked for identification-Y
and Y/1 respectively. He further proved the photocopy of the legal
notice dated 16.08.2011 which was marked for identification- Y/2.
He was cross examined extensively but nothing has been
elicited from his cross examination which could show that the plaintiff
had done any work after contract agreement between dated 26.03.2008
between proforma defendant and the principal defendant. During cross
examination, he stated that the drawing and engineering of the said
contract was made by Struck Mech Engineers, appointed by principal
defendant. The office of Struck Mech Engineers, MECON Ranchi is
near MECON, Ranchi and the payment was made by the principal
defendant to Struck Mech Engineers, MECON Ranchi and the
payment was made on the basis of the bill raised by Struck Mech
Engineers.
21. The Principal Defendant exhibited the following documents in
support of its case;
Sl. No. Exhibit/Mark for Description of documents
Identification
1. Exhibit-A MOU cum Working Agreement
dated 11.09.2007
2. Exhibit-B Letter of termination dated
15.10.2017
3. Exhibit-C and C/1 Postal Receipts
4. Exhibit-D Legal notice dated 27.07.2011
5. Exhibit-E Postal Receipt
37
( 2025:JHHC:10878 )
6. Exhibit-F Struck Mech Engineer’s letter
dated 09.03.2008
7. Exhibit-F/1 Struck Mech Engineer’s Bill
dated 17.02.2008
8. Exhibit-G Axis Bank Statement
9. Mark-Y and Y/1 Two Letter dated 20.06.2011
10. Mark-Y/2 Undated reply of legal notice
dated 27.07.2011
22. Thus, D.W-1 has admitted that MOU dated 11.09.2007 contains
his signature but has stated that signature was wrongfully taken by the
plaintiff and it was never acted upon and it was cancelled after one
month. He has also stated that the plaintiff did not perform any work
in connection with the tender/contract involved in this case, either
before or after the MOU and all the work was directly performed by
him. All the defendant witnesses have deposed in the same line as that
of D.W-1. Even the work taken from Struck Mech Engineers was
directly taken by Principal Defendant and was directly paid by
Principal Defendant through cheque whose details have been
mentioned with supporting exhibits.
I.A. No. 2067 of 2024 (additional evidence)
23. In respect to the issue of additional evidence, sought to be adduced
by the plaintiff-Appellant, the respondent/Principal Defendant has referred
to the reply of the Respondent No. 1 filed to I.A No. 2067/2024 and has
opposed the prayer by submitting that the Hon’ble Supreme Court through
its various decisions has settled the instances where any additional
evidence can be adduced at an appellate stage under Order 41 Rule 27
CPC.
24. In A. Andisamy Chettiar v. A. Subburaj Chettiar [(2015) 17
SCC 713], para 12, onwards the principles which applies for taking
additional evidence at the appellate stage has been fully discussed
with reference to the earlier judgements. Extract from the aforesaid
judgement is quoted as under: –
“12. From the opening words of sub-rule (1) of Rule 27, quoted
above, it is clear that the parties are not entitled to produce38
( 2025:JHHC:10878 )additional evidence whether oral or documentary in the appellate
court, but for the three situations mentioned above. The parties are
not allowed to fill the lacunae at the appellate stage. It is against
the spirit of the Code to allow a party to adduce additional
evidence without fulfilment of either of the three conditions
mentioned in Rule 27. In the case at hand, no application was
moved before the trial court seeking scientific examination of the
document (Ext. A-4), nor can it be said that the plaintiff with due
diligence could not have moved such an application to get proved
the documents relied upon by him. Now it is to be seen whether
the third condition i.e. one contained in clause (b) of sub-rule (1)
of Rule 27 is fulfilled or not.
13. In K.R. Mohan Reddy v. Net Work Inc. (2007) 14 SCC 257,
this Court has held as under:
“19. The appellate court should not pass an order so as to patch up
the weakness of the evidence of the unsuccessful party before the
trial court, but it will be different if the court itself requires the
evidence to do justice between the parties. The ability to
pronounce judgment is to be understood as the ability to
pronounce judgment satisfactorily to the mind of the court. But
mere difficulty is not sufficient to issue such direction.”
15. In N. Kamalam v. Ayyasamy (2001) 7 SCC 503], this Court,
interpreting Rule 27 of Order 41 of the Code, has observed in para
19 as under:
“19. … the provisions of Order 41 Rule 27 have not been
engrafted in the Code so as to patch up the weak points in the case
and to fill up the omission in the court of appeal– it does not
authorise any lacunae or gaps in the evidence to be filled up. The
authority and jurisdiction as conferred on to the appellate court to
let in fresh evidence is restricted to the purpose of pronouncement
of judgment in a particular way.”
16. In Union of India v. Ibrahim Uddin (2012) 8 SCC 148, this
Court has held as under:
“49. An application under Order 41 Rule 27 CPC is to be
considered at the time of hearing of appeal on merits so as to find
out whether the documents and/or the evidence sought to be
adduced have any relevance/bearing on the issues involved. The
admissibility of additional evidence does not depend upon the
relevancy to the issue on hand, or on the fact, whether the
applicant had an opportunity for adducing such evidence at an
earlier stage or not, but it depends upon whether or not the
appellate court requires the evidence sought to be adduced to
enable it to pronounce judgment or for any other substantial cause.
The true test, therefore is, whether the appellate court is able to
pronounce judgment on the materials before it without taking into
consideration the additional evidence sought to be adduced.”
(emphasis in original)”
39
( 2025:JHHC:10878 )
25. Thus, the principles of law is clear that the parties are not
allowed to fill the lacunae at the appellate stage and that the provisions
of Order 41 Rule 27 have not been engrafted in the Code so as to
patch up the weak points in the case and to fill up the omission in the
court of appeal. It is against the spirit of the Code to allow a party to
adduce additional evidence without fulfilment of either of the three
conditions mentioned in Rule 27. It has also been held that the
appellate court should not pass an order so as to patch up the weakness
of the evidence of the unsuccessful party before the trial court, but it
will be different if the court itself requires the evidence to do justice
between the parties. The ability to pronounce judgment is to be
understood as the ability to pronounce judgment satisfactorily to the
mind of the court. But mere difficulty is not sufficient to issue such
direction. It has also been held that the admissibility of additional
evidence does not depend upon the relevancy to the issue at hand, or
on the fact, whether the applicant had an opportunity for adducing
such evidence at an earlier stage or not, but it depends upon whether
or not the appellate court requires the evidence sought to be adduced
to enable it to pronounce judgment or for any other substantial cause.
The true test, therefore is, whether the appellate court is able to
pronounce judgment on the materials before it without taking into
consideration the additional evidence sought to be adduced.
26. Through this interlocutory application, the appellant has sought
to introduce additional evidence and this application has been filed
under Order 41 Rule 27 (1)(b) of the Civil Procedure Code. It has
been stated that in order to settle the dispute the plaintiff had filed a
Pre-litigation Case No. 38 of 2011 before the Permanent Lok Adalat,
Bokaro agreeing to settle the claim at Rs. 24,72,178/-. It has been
stated that the documents are clear evidence of the fact that the
Principal Defendant involved the services of the plaintiff to assist
them in the tender floated vide tender notice dated 27.12.2006 and the
plaintiff used to provide specialized skill and knowledge. It has been
asserted that such documents are in continuation of the assertion made
in the plaint and photo copy of numerous documents total nine in40
( 2025:JHHC:10878 )number has been annexed as Annexure IA-1 to IA-9 and the prayer
has been made that they be marked as exhibit. Apart from the
aforesaid documents, the appellant has enlisted many documents as
annexed as Annexure IA-10 to IA-14.
27. Vide paragraph 5, the appellant had undertaken to file the
original copies of the aforesaid documents as and when required and it
has been asserted that the documents annexed with the interlocutory
application be taken as additional evidence for the ends of justice and
that these documents are sterling nature which would remove the
cloud of doubt over the case and that they have direct, vital and
material bearing on the core issues involved in the present case which
is a continuation of the appeal and the interest of justice demands that
these documents be allowed to be treated as additional evidence for
effective pronouncement of judgment and for substantial cause .
Further, the only explanation of not producing such documents at the
stage of trial has been mentioned at paragraph 7 wherein it has been
stated that these documents could not be produced in evidence in suit
due to lack of due legal assistance and advise.
28. In view of the specific undertaking given by the appellant that
they would produce original before this court an order dated
14.01.2025 was passed directing the appellant to produce the original
documents which have been annexed along with the interlocutory
application as only attested copy of the same were filed. The time for
producing the original documents was extended pursuant to
interlocutory application No. 942 of 2025 vide order dated 23.01.2025
and ultimately only following documents were produced by making a
list and relied upon which are as under: –
S. Description of Documents: Number of Corresponding
No. Sheets: Annexure No. in
I.A. No. 2067 of
2024:
1. Original of the name plate and 1 sheet Annex.IA-5
numbering system prepared on
14.02.2008 and got approval
from the consultant CET on
16.02.2008.
2. Original of the letter dated 1 sheet Annex.IA-11
41
( 2025:JHHC:10878 )08.04.2009 issued by Struc-
Mech Engineers.
3. Office Copy of the payment 3 sheets, the Annex.IA-13
reminder letter dated 15.07.2010postage
and accompanying invoices with receipt pasted
the original of the registered on the first
postage receipt. sheet.
4. Office copy of the letter dated 1 sheet with Annex.IA-14
19.06.2010 with the original of second sheet
the courier receipt. pasted over
leaf
5. Office copy of the letter dated 2 sheets Annex.IA-14
06.07.2010 with the original of
the courier receipt.
6. Office copy of the letter dated 1 sheet with Annex.IA-14
1.10.2010 with the original of second sheet
the courier receipt. pasted over
leaf
7. Office copy of the letter dated 1 sheet with Annex.IA-14
31.03.2011 with original of the second sheet
registered postage receipt. pasted on it.
8. Office copy of the letter dated 1 sheet with Annex.IA-14
25.04.2011 with original of the second sheet
registered postage receipt. pasted on it.
9. Office copy of the letter dated 1 sheet with Annex.IA-14
17.06.2011 with original of the second sheet
registered speed post receipt. pasted over
leaf.
29. However, when the documents were perused on 12.02.2025
during the course of presentation of the original documents, it
transpired that Annexure-IA-13 which is letter dated 15.07.2010 is a
photo copy and not original and postal receipt has been produced in
original. So far as correspondence as contained in Annexure-IA-14
series are concerned, all the documents were photo copies with their
original postal receipts or courier receipts except one document dated
19.06.2010 which appears to be original of page 33 of the
interlocutory application. Although, through the interlocutory
application seeking to adduce additional evidence as many photocopy
of numerous documents were filed but along the list of original
documents only Annexure-IA-15, Annexure IA-11, Annexure-IA-13
and Annexure IA-14 series have been produced the details of which
has been mentioned above. This court finds that Annexure-IA-13 and
Annexure IA-14 series are reminders said to have been issued by the
plaintiff to the principal defendant for payment in terms of MOU
42
( 2025:JHHC:10878 )
dated 11.09.2007. So far as the document at I.A -5 is concerned the
same is said to be a name plate. Annex.IA-13 is dated 08.04.2009 and
is said to have been issued by Struck Mech Engineers and has been
filed to prove that the plaintiff was instrumental to get the drawing
made by Struck Mech Engineers. However, Annex. IA-13 is in the
form of confirmation which is neither addressed to any one nor the
designation or authority of its signatory has been mentioned nor
issuance of such document has been reflected in the entire evidence.
The plaintiff wants to rely upon the contents of this document
although there is no foundational pleadings with respect to the facts
mentioned therein which refers to four different drawings from Struck
Mech Engineers.
30. Moreover, there is no cogent and acceptable explanation for
non-production of aforesaid documents at the stage of trial. Further,
this court does not require the aforesaid additional evidence in order to
pronounce the judgment nor aforesaid documents advance any
substantial cause of the plaintiff. This court does not require aforesaid
documents to decide the issues involved in this case and there are
enough materials on record to decide the case. In view of the ratio of
the aforesaid judgment, (2015) 17 SCC 713 (supra) and the
observations made above, the prayer of the appellant to adduce
additional evidence vide interlocutory application No. 2067 of 2024
is dismissed. It is just to place on record that so far as other
documents annexed with I.A. No. 2067 of 2024 are concerned, though
photocopy have been annexed with I.A. No. 2067 of 2024 but the
original have not been produced and the learned counsel for the
plaintiff has relied upon only the documents mentioned in the
aforesaid list.
The point of determination no. (ii) and (iii) –
Whether the plaintiff performed any work for the Principal
Defendant pursuant to Memorandum of Understanding
(“MOU”) dated 11.09.2007(Exhibit – 5)?
Whether the plaintiff is entitled for a decree to the tune of
Rs. 62,77,385/- as claimed?
43
( 2025:JHHC:10878 )
31. The entire claim of the plaintiff is based on MoU-cum-Working
Agreement dated 11.09.2007 (Exhibit-5) said to have been entered
into between the plaintiff and the principal defendant. As per the
MOU-cum-Working Agreement dated 11.09.2007, the plaintiff and
the principal defendant had agreed to work together for preparation
and submission and Techno Commercial Bids, participation in
tenders, participation in Techno Commercial Discussions and
submission of required clarification for the above mentioned project at
Bokaro Steel Plant and in case of award of contract to the principal
defendant , they will take up detailed fabrication design, dismantling,
fabrication, supply, rection, civil execution work, testing &
commissioning of the BC Bay extension and to establish performance
guarantee parameters as per the provisions of tender. It further
envisaged that the plaintiff would arrange design & engineering for
the project and provide all technical supervision in the area of
fabrication & erection of structural items, and civil execution work as
per mutual understanding.
Since the contract of the work was between the principal defendant
and proforma defendant, it was stipulated in clause-7 of the MOU-
cum-Working Agreement dated 11.09.2007 that the payment shall be
released by proforma defendant in the name of the principal defendant
and the principal defendant immediately on receipt of cheque from
proforma defendant shall issue a cheque in the name of the plaintiff
which would be equivalent to 15% of the value of cheque issued by
proforma defendant, after adjustment of taxes, duties and other
miscellaneous expenses. It was also stipulated that any expenditure
made by the plaintiff in procurement of material or otherwise, shall be
reimbursed.
32. As per the evidence of P.W. 1, the plaintiff and the principal
defendant entered into MOU dated 11.09.2007 by virtue of which both
were to work together for participation of tender and execution of
work of proforma defendant and that the principal defendant was to
submit the technical and commercial offer with the help of specialized
knowledge of the plaintiff and accordingly the plaintiff helped the
44
( 2025:JHHC:10878 )
principal defendant to submit the tender. Similar other agreements
were also entered into between the plaintiff and the principal
defendant which were exhibited. During the cross-examination, P.W. –
1 could not recall the date of filing of tender by the principal
defendant and admitted that design and details of work was prepared
by M/s. STRUCK MECH ENGINEERS. This witness denied to have
knowledge about the amount of money invested in the work by the
plaintiff and denied to be able to file any document relating to the
same in paragraph 27 of his cross examination. He did not know as to
when his CEO visited the project for inspection. He has stated that for
the purposes of inspection of the work, the authorities of CISF had
issued passes but he had no proof of the such passes and he could not
say as to when such passes were issued.
P.W. 2 in his chief has referred to the work order dated 13.11.2007
issued by proforma defendant to the principal defendant and that the
plaintiff was claiming the amount on the basis of MOU dated
11.09.2007 (Exhibit – 5) entered into between the plaintiff and the
principal defendant. He has stated that he was the retired employee of
proforma defendant and was supervising the work of SMS and power
plant in the zone and was the zonal in-charge in the year 2010-2011
and the work order involved in this case was being executed under
him. He has stated that the plaintiff on behalf of the principal
defendant used to assist on the site, attend the meeting regarding the
work order and give advice in the capacity of technical expert and the
plaintiff had informed this witness about the MOU dated 11.09.2007
(Exhibit – 5) entered into between the plaintiff and the principal
defendant.
During his cross-examination, he had no idea as to whether
plaintiff had invested any amount in the project. He has also
categorically stated that in order to enter the premises of proforma
defendant, pass is required, and he did not know as to whether any
gate pass was issued to the plaintiff nor could he state the date of any
meeting. P.W.2 has admitted that the plaintiff was an ex-employee of
proforma defendant and denied the suggestion that he was deposing
45
( 2025:JHHC:10878 )
on behalf of the plaintiff as the plaintiff was also an ex-employee of
proforma defendant.
33. Both these witnesses, that is, P.W-1 and 2 could not prove that
the plaintiff was supervising the work or was attending the meetings
and could not prove that the plaintiff or their authorised persons
were issued gate pass for entering the premises of the proforma
defendant for any purpose what so ever. Even the dates of meetings,
if any, in relation to the tender involved in this case in terms of
MOU dated 11.09.2007 or even prior to MOU dated 11.09.2007
could not be mentioned by these witnesses. These two witnesses
could not give the details of any work claimed to have been
performed by the plaintiff in relation to the tender and work involved
in this case, including any assistance rendered in participation of
tender, negotiation of tender, preparation of drawings or supervision
of the work inside the premises of the pro-forma defendant. It was
an admitted fact that no one could enter the premises of proforma
defendant without any gate pass.
34. So far as P.W. 3 is concerned, he is the plaintiff himself. The
documents exhibit-1 onwards have been exhibited by the P.W. 3. He
has exhibited Exhibit-5, the MOU dated 11.09.2007, and stated that
the same was prepared before Notary in presence of B.K. Mishra
signed as a witness. He also exhibited other similar MOUs exhibit-6 to
6/3 which were relating to other contracts and had nothing to do with
the contract involved in this case. This witness has exhibited the plaint
as exhibit-1 ; Original Authorization dated 19.02.2007 (exhibit-2) –
issued by the principal defendant to the proforma defendant
authorising the plaintiff to sign all documents etc. and stating that a
copy of all the correspondences be given to the plaintiff, but this
authorisation letter does not have any receiving of the proforma
defendant and in exhibit-2 it has not been mentioned that a copy of
the letter was being handed over to the plaintiff; Original Letter dated
06.06.2007 (exhibit-3) -issued by the principal defendant to the
proforma defendant but it does not contain the name of the plaintiff
nor a copy is marked to the plaintiff although in the authorisation
46
( 2025:JHHC:10878 )
letter it was mentioned that copy of all the correspondences are to be
given to the plaintiff ; Original Letter dated 08.06.2007 (FAX
message) -issued by the principal defendant to the proforma defendant
which again does not contain the name of the plaintiff nor it reflects
that the plaintiff had any role in submitting this document .
Thus aforesaid documents only prove that an authorisation letter
was issued but it was not marked to the plaintiff. Further the
documents do not reveal that any work was ever done by the plaintiff
for or on behalf of the principal defendant in connection with the
tender/work involved in this case.
This witness has in particular referred to the Xerox copy of Reply to
Legal notice dated 27.01.2009 [issued by the plaintiff] vide legal
notice dated 19.02.2009 [issued by advocate S.P. Darad on behalf of
the principal defendant] stating that the principal defendant was ready
to compensate the plaintiff for the technical services provided by the
plaintiff and thereby the principal defendant admitted and
acknowledged the arrangement made between the plaintiff and the
principal defendant. A reply was also sent to advocate S.P. Darad by
the plaintiff vide notice dated 14.03.2009 asking for payment (marked
exhibit Y/2). It was stated that almost 80% of the work was over but
the principal defendant had not paid any amount to the plaintiff.
None of the legal notices has counter signature of the principal
defendant and the defendant has brought on record a legal notice
issued by the same advocate S.P. Darad to show that he had acted as
an advocate for both the parties in connection with the same
contract and accordingly no reliance can be placed on alleged
admission of the principal defendant.
He has also claimed that he got the structural design and drawing
prepared by the 3rd party and also paid to the 3rd party. However, the
evidence of the defendants discussed later reveals that the payment
was directly made by the principal defendant and the plaintiff had
no role to play in the matter of preparation, payment or submission
of the drawings.
47
( 2025:JHHC:10878 )
He admitted that he did not make any investment in the project and
has stated that the plaintiff has not received any letter of termination
from the principal defendant and other wise also there is no
termination clause in MOU dated 11.09.2007. He has also referred
that the matter was taken up by Permanent Lok Adalat but nothing
materialized.
This witness was recalled for further examination and on recall he
exhibited certain documents as mentioned in the list of exhibits above
including Exhibit-7 dated 28.05.2007 said to have been filed by the
plaintiff in the capacity of signatory of principal defendant but this
court finds that it neither contains the signature of the plaintiff nor it
contains the name of the plaintiff nor does it have any receiving by the
proforma defendant. This witness has admitted during cross
examination that the manager of plaintiff was B.K. Mishra and this
witness has also exhibited the letters dated 15.11.2007 and 06.12.2007
as exhibit 9 and 9/1 but this court finds that these documents does not
show any receiving of the proforma defendant. During his cross
examination he admitted that he had not signed the tender papers
which was submitted before the proforma defendant but stated that it
was purchased by Ajay Kumar Singh who was appointed as the
Project Manager but no such evidence to that effect was produced.
With respect to letter dated 04.06.2007 he admitted that it was
addressed to the principal defendant and he also admitted that he did
not get any receiving of the said letter but simply stated that it was
received by the proforma defendant. He has further admitted that there
is no document given by proforma defendant regarding authorization
in favour of the plaintiff. He stated that technical commercial offer
was prepared by him but has not filed any proof of the same in the
court and that he had not received any order or contract from proforma
defendant directly and that he had retired from proforma defendant in
the year 2001. He has also stated that he has not produced any
document regarding authorization issued by proforma defendant and
he admitted that he had not signed on the measurement book as an
authorized person of the principal defendant. He had admitted that
48
( 2025:JHHC:10878 )
detail was designed by M/s. Struck Mech Engineering and has simply
stated that the cheque was handed over to the said designer by him but
proof of the same has not been produced. He has stated that original
letter dated 11.09.2007 (exhibit-5) which is the bone of contention
between the parties was with the principal defendant which was
received by him on 23.12.2007 and it was with the principal defendant
from 11.09.2007 to 23.12.2007. He admitted that there was no letter
from proforma defendant regarding his meeting with any of the
authority of proforma defendant. He also denied to know the total
expenditure in completion of the tender. He denied the suggestion that
a false experience certificate was submitted by him in connection with
Shiv Durga Paramount while he was employed as chief executive
officer of the said firm. He has stated that gate pass was issued by
proforma defendant for this work order but has not filed even a single
gate pass before the court. He has also stated that proforma defendant
had not issued any identity card to the plaintiff as authorized person of
principal defendant and in the legal notices there is no signature of the
plaintiff and the principal defendant. He has stated that cheque relating
to payment was received by him from the accounts department of
proforma defendant but he had no authorization letter. He has further
admitted that in exhibit-2 it has not been mentioned that a copy of the
letter was being handed over to the plaintiff. He is not aware as to
whether he has submitted any document regard to work after issuance
of exhibit-5 i.e. MOU dated 11.09.2007.
35. This court finds that the oral evidence of the aforesaid 3
witnesses of the plaintiff reveals that the plaintiff has not been able to
prove any assistance rendered by the plaintiff for the purposes of
preparation of tender, filing of tender and revision of tender or even
any meeting with the officers of the proforma defendant or that the
proforma defendant ever acknowledged the plaintiff as an authorized
representative of the principal defendant for any purpose whatsoever.
The plaintiff has also failed to demonstrate that they were even
authorized to enter the premises of the proforma defendant as neither
any gate pass nor any document entitling them to enter the premises
49
( 2025:JHHC:10878 )
has been produced. It has been duly established during the cross
examination of the witnesses of the plaintiff that without any gate pass
or identity card no one could enter the premises of the proforma
defendant. The plaintiff also could not even prove that the technical
drawing given by the Struck Mech. was done at the instance of the
plaintiff or that the plaintiff had any role in the matter.
36. This court also findings that the suit was filed for recovery of
money claim said to be payable to the plaintiff by the principal
defendant/defendant no.1 amounting to Rs.62,77,385/- for the
technical services claimed to have been provided by the plaintiff as
per MOU cum working agreement dated 11/09/2007 (Exhibit-5); The
MOU (Exhibit – 5) has been proved but it is the case of the principal
defendant that the plaintiff got the Exhibit – 5 fraudulently signed and
the Exhibit – 5 was cancelled vide Exhibit – B dated 15.10.2007
which was duly served upon B.K. Mishra; the plaintiff in his evidence
has admitted that B.K. Mishra was the then manager of the plaintiff
and was also a witness to the MOU dated 11.09.2007 (Exhibit – 5)
from the side of the plaintiff . The aforesaid reason for cancellation
has been mentioned in the cancellation letter dated 15.10.2007
(Exhibit B). The said document has been exhibited by DW2 in
paragraph 7 wherein DW2 has stated that the then employee of the
plaintiff Mr. B. K. Mishra had received the termination letter dated
15.10.2007 on behalf of the plaintiff and he has referred to the
signature of P.W.-1 on the said letter of termination and identified the
signature of Mr. B. K. Mishra. The discussions of the evidences as
mentioned above reveals that the letter of cancellation, i.e., Exhibit –
B dated 15.10.2007 and its service to none less than the manager of
the plaintiff, namely, B.K. Mishra who was also a witness to the
MOU (exhibit-5) from the side of the plaintiff. D.W-2 has also stated
that vide the letter dated 20.06.2011, the plaintiff was again informed
that the MOU was already terminated and also exhibited the letter
dated 20.06.2011. This witness was thoroughly cross-examined and
during his cross-examination, he has stated the fact that MOU was
50
( 2025:JHHC:10878 )
cancelled was the proof that the plaintiff did not do any work under
the MOU.
37. This Court also finds that the execution of MOU dated
11.09.2007 was certainly proved but its cancellation vide letter dated
15.10.2007 was also proved. There was no cross-examination of
D.W.-2 in connection with letter of cancellation of MOU dated
15.10.2007.
38. This Court finds that the learned trial court has also considered
the point regarding cancellation of MOU and recorded that there was
nothing on record to establish that any meeting in pursuance of MOU
was attended by the plaintiff with the defendants and it was apparently
clear after going through all the evidences on record that the plaintiff
had not arranged funds pursuant to MOU and that the defendant had
also produced exhibit-B i.e. termination letter dated 15.10.2007. The
learned trial court also took into consideration that the plaintiff had not
performed any work pursuant to MoU dated 11.09.2007 and not even
one meeting of the plaintiff with the proforma defendant or his
authorities was proved by the plaintiff.
39. In order to show that the MOU cum working agreement dated
11/09/2007 (Exhibit-5) was not cancelled, the plaintiff has relied
upon the reply sent by the Advocate S.P. Darad dated 19.02.2009
marked exhibit Y/1 to the legal notice sent by the plaintiff to submit
that the principal defendant admitted and acknowledged the
arrangement made between the plaintiff and the principal defendant
and it was stated that almost 80% of the work was over but the
principal defendant had not paid any amount to the plaintiff and has
also stated that the matter was taken up by Permanent Lok Adalat but
nothing materialized and a reply was sent to advocate S.P. Darad by
notice dated 14.03.2009 on behalf of the plaintiff asking for payment
(marked exhibit Y/2) and also mode and manner of settlement.
However, the principal defendant has raised serious objection to the
legal notices/reply by the Advocate S.P. Darad and have brought on
record the legal notice issued by the same Advocate S.P. Darad from
the side of the plaintiff dated 22.07.2011 (exhibit- D) to demonstrate
51
( 2025:JHHC:10878 )
that the Advocate S.P. Darad was acting as the advocate for both the
sides in the same dispute. Further, a serious objection has also been
taken from the principal defendant to exhibit Y/1 and Y/2 stating that
they do not contain the signature of the principal defendant and upon
perusal of exhibit Y/1 and Y/2 it is apparent that they do not contain
the counter signature of the principal defendant. Considering the
aforesaid aspects of the matter that the Advocate S.P. Darad has acted
as an advocate for both the sides in the same dispute and that exhibit
Y/1 and Y/2, on the basis of which it has been asserted by the plaintiff
that the principal defendant had accepted the entire transaction, are not
reliable documents. Thus, this court finds that MOU cum working
agreement dated 11/09/2007 (Exhibit-5) which is the basis of the
claim of the plaintiff was proved to have been cancelled by the
principal defendant vide Exhibit – B dated 15.10.2007.
40. It was the specific case of principal defendant that the plaintiff
did not perform any work arising out of or in connection with MOU
dated 11.09.2007 (Exhibit – 5) or in connection with the contract
involved in this case which was entered into between principal
defendant and the proforma defendant which itself was cancelled vide
Exhibit – B dated 15.10.2007. Cancellation having been proved, it is
to be examined further as to whether the plaintiff did any work in
connection with MOU dated 11.09.2007 (Exhibit -5).
41. The scope of the work as mentioned in the MOU cum working
agreement dated 11/09/2007 (Exhibit-5 ) reveals that the plaintiff was
primarily required to give technical assistance to the plaintiff in the
matter of submission of tender, drawings, execution of the work but
the plaintiff could not prove any material to show that the plaintiff had
participated in any meetings with the proforma defendant or filed any
document before the proforma defendant in the matter of submission
of tender/drawings/execution of the work or ever visited the site of
work inside the premises of the proforma defendant for supervision of
the work or for any other purposes. In fact, no gate pass was ever
issued to the plaintiff or their employees by the proforma defendant to
enter their premises and admittedly all the matters relating to the work
52
( 2025:JHHC:10878 )
including the execution of the work was inside the premises of
proforma defendant and it has come in evidence of the witnesses and
their cross examination that no one was permitted to enter the
premises of the proforma defendant without a gate pass. It was not
even the case of the plaintiff that the plaintiff or their employees could
enter into the premises of the proforma defendant without a gate pass
or were not required to enter into the premises of the proforma
defendant to do any work in relation to the work right from
submission of tender or to give technical assistance for performance of
the contract work involved in this case.
42. A lot of emphasis has been given by the learned counsel for the
plaintiff with regard to technical assistance rendered by M/s Struck
Mech Engineers. During the course of evidence and also during the
course of hearing, it is not in dispute that the drawing was prepared by
M/s Struck Mech Engineers, but the payment was directly made by
the principal defendant in favour of M/s Struck Mech Engineers
through cheque which has come during the evidence of the
defendants. The additional evidence from the side of the plaintiff
produced before this court has already been rejected as aforesaid.
Further the plaintiff has stated that the cheque for payment to M/s
Struck Mech Engineers for drawings was handed over by the plaintiff
to M/s Struck Mech Engineers has not been proved by the plaintiff by
producing any cogent evidence.
43. This Court has gone through the evidences on record and finds
that there has been no evidence from the side of the plaintiff to show
that any assistance, much less technical assistance was rendered by the
plaintiff to the principal defendant in the matter of execution of the
work which was admittedly executed inside the premises of the pro
forma defendant in which entry was completely prohibited without a
gate pass. Even in the evidence the plaintiff has failed to disclose as to
what kind of assistance was provided by them to the principal
defendant in the execution of the work and whether they incurred any
expenses for such assistance except that they said that they facilitated
in the matter of payment of bills and issuance of cheques by the
53
( 2025:JHHC:10878 )
proforma defendant to the principal defendant and for this also no
document was produced to show that the cheques were actually
received by the plaintiff from the proforma defendant on behalf of the
plaintiff. Admittedly, no bill or claim was raised by the plaintiff in
connection with any expenses for which they were entitled to
reimbursement as per clause 7 of MOU cum working agreement dated
11/09/2007 (Exhibit-5).
44. The learned trial court has also considered the materials on
record to hold that the plaintiff did not perform any work arising out
of MOU cum working agreement dated 11/09/2007 (Exhibit-5). The
learned Trial court while deciding issue no. 6 & 7 which is
corresponding to the point of determination no. (ii) and (iii) framed
by this court and the findings are as follows: –
“17. ……….
18. Now, we have to see, whether the plaintiff has performed all
its contractual obligation as mentioned in MOU dated
11.09.2007 in order to get relief from the court. The plaintiff
has proved several documents. All these documents do not
show that the plaintiff has done fabrication design,
dismantling, fabrication, supply, erections, execution of civil
work, testing and commencing of BC Bay extension and
establishment of the performance guarantee parameters as
per the provisions of the contract. Furthermore, the plaintiff
has also failed to prove its case either by oral or documentary
evidence that after execution of contract dated 26.03.2008, the
plaintiff had performed the contractual work awarded to the
Principal Defendant as per terms and conditions of MOU dated
11.09.2007.
The plaintiff has not performed the contractual work awarded
to the defendant no. 01 as per the terms and conditions of the
MOU dated 11.09.2007. For better clarification, the documents
filed by the plaintiff and marked as exhibits are discussed
herein below. And the contract for executing the work between
Principal Defendant and SAIL, Bokaro Steel Plant was
executed on 26.03.2008 and the plaintiff has not filed any
document or adduced any oral evidence to show that after
execution of contract between the Defendant No. 01 and SAIL,
Bokaro Steel Plant on 26.03.2008, he performed any of the
contractual work as mentioned in the MOU dated 11.09.2007.
19. …………………………………………………
54
( 2025:JHHC:10878 )
20. It is the claim of the plaintiff that he had performed all
the contractual works as assigned to him under MOU cum
Working Agreement dated 11.09.2007 and contract between
Defendant No. 01 and SAIL, Bokaro Steel Plant was executed
26.03.2008 and the work order was issued on 13.11.2007. But
the document such as Exhibit- 2, 3, 4, 10, 10/1 and 10/2 are
prior to the issuance of work order dated 13.11.2007 and
Exhibit 9 and 9/1 are after allotment of work order dated
13.11.2007. Exhibit 10/3 is letter dated 11.04.2008 is the only
document which is after signing of contract agreement and
thereafter no documents have been filed by the plaintiff to show
that he had participated any work of the contract as assigned to
him in MOU cum Working Agreement dated 11.09.2007. It is
the claim of the plaintiff that he had made correspondence with
SAIL, Bokaro Steel Plant being authorized representative of
M/s Udaya Brother but in none of documents, there is seal of
Bokaro Steel Plant and the plaintiff himself accepted in
paragraph 73 of his cross examination that apart from letter
dated 08.06.2007, he had no document in respect of meeting of
any officials of Bokaro Steel Limited. He further deposed in
paragraph 74 of his cross examination that no letter in respect
of tender no. T&C(M)/IPU/278 had been issued by any of the
officials of BSL or office in his name nor any reply was issued
by Bokaro Steel Plant in the name of the plaintiff. He further
deposed in paragraph 75 of his cross examination that he could
not say that how much amount he had spent for completion of
tender. He further admitted in paragraph 81 of his cross
examination that after MOU dated 11.09.2007, he didn’t make
any correspondence nor submitted any document to BSL in
respect of such tender. Simply he had submitted drawing to BSL
and the said drawing was prepared by Struck Mech. Engineers.
He didn’t receive any acknowledgment of such submission of
drawing from BSL (paragraph 82). He further deposed that
Bokaro Steel Limited has not issued any letter acknowledging
him as authorized person of M/s Udaya Brothers in respect of
said tender. Further, he deposed that in respect of four cheques
regarding payment by BSL, he got it from BSL and in order to
get such documents, he didn’t have to write any letter because
he was authorized person. He had already acknowledged this
fact that BSL had not acknowledged him as authorized person
of M/s Udaya Brothers nor he has any evidence in respect of
such authorization. Thus, it is clear that the witness is telling
lie in respect of authorization given to him for contract
agreement dated 26.03.2008. He further admitted in paragraph
101 that he had no knowledge that he had submitted any
document in respect of the said tender after execution of MOU55
( 2025:JHHC:10878 )dated 11.09.2007. He further admitted in paragraph 102 of his
deposition by seeing his documents that he after getting bill
from BSL had submitted in the court and apart from that he
didn’t file any document in respect of performing any obligation
as envisaged in MOU dated 11.09.2007. In paragraph 103, he
deposed that the documents (bills) marked for identification X
to X/3 in which it had not been mentioned that the same was
given to the plaintiff on the request of the plaintiff. He himself
accepted in paragraph 102 of cross examination that after
execution of MOU dated 11.09.2007, he didn’t submit any
document in respect of performance of any obligation as
stipulated in the agreement dated 11.09.2007 but later on again
he re-examined himself on 05.03.2018 and submitted true copy
of the letters and these letters do not show that actually these
letters were received by SAIL, Bokaro Steel Plant because no
postal receipt has been filed by the plaintiff nor any
identification of the receiving officer or concerned clerk or seal
of Bokaro Steel Plant were present on those documents.
Furthermore, he has proved one fax letter dated 06.12.2007
(Exhibit-9/1) issued by SAIL, Bokaro Steel Plant addressed to
M/s Udaya Brothers containing phone number of M/s Udaya
Brothers, so the submission of the plaintiff that he had
personally received the true copy of the same handed over to
M/s Udaya Brothers without acknowledgment of M/s Udaya
Brothers creates doubt over this document because the letter
was addressed to M/s Udaya Brothers. Apart from that the
letter original letter dated 28.05.2007 (Exhibit-7), which was
addressed to M/s BSL issued by the plaintiff being authorized
signatory of M/s Udaya Brother creates doubt that when such
letter was given BSL, then how original copy of Exhibit-7 was
retained by the plaintiff. Furthermore, in Exhibit-7, there is no
acknowledgement of SAIL, Bokaro Steel Plant and furthermore,
letter dated 28.05.2007 (Exhibit-7) is a fax message but there is
no proof of fax message has been given by the plaintiff and this
casts doubt about genuineness of Exhibit-7. Apart from that,
Exhibit -9, 9/1 & 10 are true copies of letter dated 15.11.2007,
06.12.2007 and 14.05.2007 submitted by the plaintiff and in
Exhibit-9 and 10, there is no seal of Bokaro Steel Plant and the
plaintiff has himself accepted in paragraph 81 of his cross
examination that after execution of MOU dated 11.09.2007, he
didn’t make any correspondence or submitted any document to
Bokaro Steel Plant in respect of such tender. Thus, in the light
of specific admission by the plaintiff, the true copies of these
documents cannot be relied upon because in these true copies
there is no seal of Bokaro Steel Plant.
56
( 2025:JHHC:10878 )
21. Furthermore, Exhibit-11 is power of attorney dated
04.11.2007, there is no reference of the tender and contract of
dispute rather different tender notice has been mentioned in
such power of attorney and the plaintiff himself has admitted in
paragraph 28 of cross examination of his re-examination that
the power of attorney dated 04.11.2007 (Exhibit-7) has no
relation with the work order under dispute.
22. Also going through the order sheet dtd. 20.01.2016, I
find that initially the original Copy of Letter dtd. 20.06.2011
was marked as Exhibit 7 and later on crossed in the initials of
the Ld. PO without mentioning of any reason but that original
Copy of the Letter is on the record and the Marking of Exhibit 7
is striked out, that makes the case of the plaintiff doubtful that
what was the basis of not accepting that original letter as an
evidence, even it was marked so by the Ld. predecessor Court.
However, because of that this piece of evidence cannot be read
as an evidence but being part of the record, by going through it
I find that in this Letter Dated 20.06.2011issued by the
Principal Defendant they have stated that they have terminated
the MOU as per Para 2,3,5 and 6 of the same MOU by their
last letter addressed to the plaintiffs.
It is the admitted case of the plaintiff that by letter dated
20.06.2011, he was informed by the Defendant No. 01 that by
last letter MOU was terminated and he was not entitled for any
amount because he didn’t do any work as assigned to him as
per MOU dated 11.09.2007. Also Defendant No. 01 has proved
the termination letter dated 15.10.2007 which was duly
received by Sri. B.K. Mishra, an employee of the plaintiff and
the plaintiff has not objected any authentication of signature of
B.K. Mishra on letter dated 15.10.2007 and a letter dated
20.06.2011 there is reference of last letter by which the MOU
was terminated. Though, the date was not mentioned in the
letter dated 20.06.2011 and this fact was never controverted by
the plaintiff. Thus, it is clear that MOU was terminated by the
Defendant No. 01 by letter dated 15.10.2007. By Caveat
Petition No. 01/2009 and Caveat Petition No. 02/2009 dated
04.02.2009 respectively, the plaintiff was informed by the
Principal Defendant that the opposite party/plaintiff except
providing the technical know-how before the conclusion of the
contract didn’t make any investment whatsoever in procurement
of steel for structural work nor did make any investment in
furtherance of the contract nor did take nor has been taking
any interest in the completion of the contract and it was the
Defendant No. 01 alone who had made and had been making
all the investment in procurement of materials and men and57
( 2025:JHHC:10878 )machinery for the execution of work and furtherance of the
contract.
Thus, from the above discussions, it is clear that the plaintiff
has not performed his contractual obligations as per agreement
dated 11.09.2007, therefore, the Issue No. 06 and 07 are
decided against the plaintiff.”
45. Further discussions have been made regarding non –
performance of any work by the plaintiff while deciding issue no. 1,
2, 4, 5 and 8 which have also been decided against the plaintiff.
46. This court finds that the learned trial court has given a well-
reasoned judgement on the aforesaid issues taking into consideration
all the materials placed on record . This court finds no reason to take a
different view in the light of the discussions made by this court and
the findings recorded above and also being satisfied by the reasons
and findings of the learned trial court.
47. Accordingly, the point of determination no. (ii) and (iii) are
decided against the plaintiff appellant and in favour of the principal
defendant -contesting respondent.
Point of determination No. 1 i.e. whether the suit is barred by limitation?
48. So far as the point of determination No. 1 i.e. limitation is
concerned, it is the case of the plaintiff that in terms of clause 7 of
MoU dated 11.09.2007, the plaintiff was to get payment to the extent
of 15% immediately on receipt of cheque by the principal defendant
from the proforma defendant and thus there was back to back
obligation to issue cheque to the plaintiff by the principal defendant to
the extent of 15% of the cheque amount immediately upon receipt of
the cheque by the principal defendant from the proforma defendant.
49. Learned counsel for the plaintiff has submitted that the suit
shall be governed by Article 54 of the Limitation Act which deals with
specific performance of contract and accordingly three years period
would start running from the date fixed for performance and in case
no such date is fixed, the limitation would commence from the date
when the plaintiff had noticed that the performance was refused. The
learned counsel has referred to the term “immediately” as used in
clause 7 of the MoU dated 11.09.2007 and has submitted that the same
58
( 2025:JHHC:10878 )
is vague enough not to admit of any specific date which could be said
to have been fixed in the contract for specific performance and
therefore it is to meet this type of case that Article 54 has been
designed in a fashion that it includes both the alternatives. It is their
specific case that the relevant date in the instant case would be the
date of notice by which the principal defendant refused to perform his
part of the contract and that would be 20.06.2011.
50. On the other hand, it is the case of the respondent that the suit
will be governed by Article 18 of the Limitation Act and limitation
would be counted from the date of execution of the work. Such plea of
the principal defendant is not acceptable as the cause of action for
claiming payment by the plaintiff arises only upon receipt of cheque
by the principal defendant from the proforma defendant as per clause
7 of the MOU (exhibit-5) and accordingly the date of execution of
work cannot be taken as the trigger point for the cause of action for
computing the limitation.
51. This court is of the considered view that the case would be
guided by Article 54 of the Limitation Act as there was reciprocal
obligation on the part of the principal defendant to pay 15%
immediately upon receipt of the cheque from pro forma defendant.
This court is of the considered view that although no fixed date has
been mentioned for payment but certainly happening of an event, that
is, receipt of cheque by the principal defendant from the proforma
defendant, has been stated to give rise to a cause of action to claim
15% of the cheque amount as per clause 7 of the MOU (exhibit-5) . In
the present case the plaintiff has filed money suit seeking to enforce
payment in terms of clause 7 of the MOU (exhibit-5).
52. The argument of the learned counsel for the -plaintiff appellant
that no specific time having been fixed, the cause of action to file the
suit will be from the date of refusal to pay in the year 2011 is devoid
of any merits. In the present case the date of performance is fixed in
the sense that as per clause 7 of the MOU (exhibit-5) the cheque has to
be issued to the plaintiff by the principal defendant immediately upon
receipt of the cheque from the proforma defendant and the crucial
59
( 2025:JHHC:10878 )
event to claim cheque triggered the moment the principal defendant
received the cheque from the proforma defendant. In the present case
the plaintiff has also claimed to have raised 4 bills after credit of
amount in the account of the proforma defendant although as per
clause 7 of the MOU (exhibit-5) the issuance of cheque to the plaintiff
is not dependent upon actual credit of the amount in the account of the
principal defendant. More over the 4 bills said to have been raised by
the plaintiff after credit of amount in the account of the principal
defendant have not been proved by the plaintiff.
53. In the present case the right to seek remedy accrued to the
plaintiff when the plaintiff was not issued the cheque by the principal
defendant immediately upon receipt of the cheque from the proforma
defendant and for each 4 cheques the dates were different. The suit
was barred by limitation when the date of receipt of each cheque or
even date of receipt of payment of each cheque by the principal
defendant is taken as the cause of action to sue the principal defendant
for payment in terms of MOU-cum-Working Agreement dated
11.09.2007 (Exhibit-5).
54. In the judgement relied upon by the learned counsel for the
appellant in the case of Major (Retd.) Inder Singh Rekhi v. Delhi
Development Authority, (1988) 2 SCC 338 the limitation was governed by
Article 137 of the Limitation Act, 1963 it was held that in order to be
entitled to order of reference under Section 20 of the Arbitration Act,
1940 a dispute has arisen regarding non-payment of the alleged dues
of the appellant. The question was when did such dispute arise. The
High Court proceeded on the basis that the work was completed in
1980 and therefore, the appellant became entitled to the payment from
that date and the cause of action under Article 137 arose from that
date. The Hon’ble supreme court held that in order to be entitled to
ask for a reference there must not only be an entitlement to money but
a difference or dispute must arise. It was held that it is true that on
completion of the work a right to get payment would normally arise
but where the final bills were not prepared and when the assertion of
the claim was made on 28-2-1983 and there was non-payment, the
60
( 2025:JHHC:10878 )
cause of action arose from that date, that is to say, 28-2-1983. It has
been held that it is also true that a party cannot postpone the accrual of
cause of action by writing reminders or sending reminders but where
the bill had not been finally prepared, the claim made by a claimant is
the accrual of the cause of action.
It has also been held that a dispute arises where there is a claim and a
denial and repudiation of the claim. There should be dispute and there
can only be a dispute when a claim is asserted by one party and denied
by the other on whatever grounds. Mere failure or inaction to pay does
not lead to the inference of the existence of dispute. Dispute entails a
positive element and assertion of denying, not merely inaction to
accede to a claim or a request. Whether in a particular case a dispute
has arisen or not has to be found out from the facts and circumstances
of the case.
55. In the case of Rashtriya Ispat Nigam Ltd. v. Prathyusha
Resources & Infra (P) Ltd., (2016) 12 SCC 405 the bone of
contention between the parties has been mentioned in paragraph 4 of
the report as follows:-
“4. The bone of contention in this appeal is the question of relief
being barred by the law of limitation. The appellant submits that
the High Court has arrived at a wrong conclusion by invoking
Article 137 of the Limitation Act, 1963, and since the contract
was in the nature of work contract, Article 18 would apply. This
article would thereby provide that the right to sue accrued when
the contract was completed i.e. 23-10-1997 and hence notice for
arbitration was beyond the period of limitation. The respondent
claimant also argued that the dispute as to determination of base
year for calculating escalation arose vide letter dated 15-7-1996
and hence the notice for arbitration was issued beyond the
period of limitation. Either ways, the cause of action in favour of
the respondent claimant accrued, if any, is an imperfect right.
In paragraph 5 of the report, the settled law on the subject was stated as
under: –
“5. We shall now consider the settled law on the subject. This
Court in a catena of judgments has laid down that the cause of
action arises when the real dispute arises i.e. when one party
asserts and the other party denies any right. The cause of action
in the present case is the claim of the respondent claimant to the
determination of base year for the purposes of escalation and the61
( 2025:JHHC:10878 )calculation made thereon, and the refusal of the appellant to pay
as per the calculations.”
The findings with respect to the point of limitation was recorded in
paragraph 6 of the report wherein it was observed that it was
nobody’s case that the contract came to an end on 23-10-1997, but
the difference on determination of base year first arose in the letter
dated 15-7-1996. However, bills were raised by the respondent
claimant in 1998 vide letter dated 4-9-1998, which actually
resulted into exchange of letters which formed the base of dispute
between the parties and it is an admitted fact that the bills were not
finalised as could be seen from the letters dated 7-2-2000 and 9-5-
2000. The Hon’ble Supreme Court held that the cause of action
arose on the date of raising the bill, that is, on or after 4-9-1998
and held as follows: –
“6……Therefore, we find that the findings of the learned
arbitrator and concurrently affirmed by the High Court are
correct on the point that the cause of action arose on or after
4-9-1998. Hence, the said letter by the respondent claimant to
the appellant to initiate arbitration was not barred by the law
of limitation.”
56. As argued by the learned counsel for the plaintiff and accepted
by this court, the suit is governed by limitation under specific
performance of contract, that is, under section 54 of the Limitation
Act, and therefore this court is of the considered view that the
aforesaid two judgements passed in the context of Article 137 of the
Limitation Act has no application. Otherwise also, residuary provision
for filing suits is Article 113 suits and not Article 137 of the
Limitation Act, 1963.
57. The Article 113 and 54 has been considered by the Hon’ble
Supreme Court in a recent judgement reported in 2025 SCC OnLine
SC 48 (Indian Evangelical Lutheran Church Trust Association
versus Sri Bala and Co.). It has been held by the Hon’ble Supreme
Court that under Article 113 of the limitation Act [that is. the
residuary provision to file suit when the suit is not governed by any
other article], time commences to run when the right to sue accrues
62
( 2025:JHHC:10878 )
and this is in contradistinction to Article 54 of the Limitation Act
relating to a suit for specific performance of contract which is on the
happening of an event. The accrual of cause of action to file a suit has
also been fully explained in the said judgement. Paragraph 9, 9.5, 9.7
9.8, 9.9 9.10,9.11 of the aforesaid judgment are quoted as under for
ready reference: –
“9. The Limitation Act, 1963 consolidates and amends the law
of limitation of suits, appeals and applications and for purposes
connected therewith. The law of limitation is an adjective law
containing procedural rules and does not create any right in
favour of any person, but simply prescribes that the remedy can
be exercised only up to a certain period and not beyond. The
Limitation Act therefore does not confer any substantive right,
nor defines any right or cause of action. The law of limitation is
based on delay and laches. Unless there is a complete cause of
action, limitation cannot run and there cannot be a complete
cause of action unless there is a person who can sue and a
person who can be sued. There is also another important
principle under the Law of Limitation which is crystallized in
the form of maxim that “when once the time has begun to run,
nothing stops it.
9.1….
9.2….
9.3….
9.4….
9.5. This Court in Shakti Bhog Food Industries Ltd. v. Central
Bank of India, (2020) 17 SCC 260, stated that the expression
used in Article 113 of the 1963 Act is “when the right to sue
accrues”, which is markedly distinct from the expression used
in other Articles in First Division of the Schedule dealing with
suits, which unambiguously refer to the happening of a
specified event. Whereas Article 113, being a residuary clause,
does not specify happening of particular event as such, but
merely refers to the accrual of cause of action on the basis of
which the right to sue would accrue.
9.6……
9.7. In the present case, the earlier suit was filed by the
respondent/plaintiff in July, 1993 on the basis of Article 54
referred to above and the plaint in the said suit was rejected on
12.01.1998. The second suit being O.S. No. 49/2007 was filed
on the strength of Order VII Rule 13 of the Code for the very
same cause of action and for seeking the very same relief of
specific performance of the agreement dated 26.04.1991 as the63
( 2025:JHHC:10878 )plaint in the earlier suit was rejected on 12.01.1998. Therefore,
it cannot be said that the second suit namely O.S. No. 49/2007
was filed as per Article 54 of the Limitation Act. Since this is a
suit filed for the second time after the rejection of the plaint in
the earlier suit, in our view, Article 54 of the Limitation Act
does not apply to a second suit filed for seeking specific
performance of a contract. Then, the question is, what is the
limitation period for the filing of O.S. No. 49/2007. We have to
fall back on Article 113 of the Limitation Act.
9.8. Under Article 113 of the Limitation Act, time commences to
run when the right to sue accrues. This is in contradistinction to
Article 54 of the Limitation Act relating to a suit for specific
performance of a contract which is on the happening of an
event. No doubt, the second suit which is the present suit filed
by the respondent/plaintiff is also for specific performance of
the contract but the right to sue accrued to file the second suit
is on the basis of Order VII Rule 13 of the Code subsequent to
the rejection of the plaint in the earlier suit on 12.01.1998.
Therefore, the right to sue by means of a fresh suit was only
after 12.01.1998. The expression “when the right to sue
accrues” in Article 113 of the Limitation Act need not always
mean “when the right to sue first accrues”. For the right to sue
to accrue, the right sought to be vindicated in the suit should
have already come into existence and there should be an
infringement of it or at least a serious threat to infringe the
same vide M.V.S. Manikyala Rao v. M. Narasimhaswami, AIR
1966 SC 470. Thus, the right to sue under Article 113 of the
Limitation Act accrues when there is an accrual of rights
asserted in the suit and an unequivocal threat by the defendant
to infringe the right asserted by the plaintiff in the suit. Thus,
“right to sue” means the right to seek relief by means of legal
procedure when the person suing has a substantive and
exclusive right to the claim asserted by him and there is an
invasion of it or a threat of invasion. When the right to sue
accrues, depends, to a large extent on the facts and
circumstances of a particular case keeping in view the relief
sought. It accrues only when a cause of action arises and for a
cause of action to arise, it must be clear that the averments in
the plaint, if found correct, should lead to a successful issue.
The use of the phrase “right to sue” is synonymous with the
phrase “cause of action” and would be in consonance when
one uses the word “arises” or “accrues” with it. In the instant
case, the right to sue first occurred in the year 1993 as the
respondent/plaintiff had filed the first suit then, which is on the
premise that it had a cause of action to do so. The said suit was64
( 2025:JHHC:10878 )filed within the period of limitation as per Article 54 of the
Schedule to the Limitation Act.
9.9. Thus, generally speaking, the right to sue accrues only
when the cause of action arises, that is, the right to prosecute to
obtain relief by legal means. The suit must be instituted when
the right asserted in the suit is infringed or when there is a
clear and unequivocal threat to infringe that right by the
defendant against whom the suit is instituted. Article 113 of the
Schedule to the Limitation Act provides for a suit to be
instituted within three years from the date when the right to sue
accrues and not on the happening of an event as stated in
Article 54 of the Schedule to the Limitation Act.
9.10. In the facts and circumstances of the present case, it is
also necessary to apply Section 9 of the Limitation Act while
applying Article 113 thereto. Section 9 reads as under:
“9. Continuous running of time.–
Where once time has begun to run, no subsequent disability or
inability to institute a suit or make an application stops it:
Provided that where letters of administration to the estate of a
creditor have been granted to his debtor, the running of the period
of limitation for a suit to recover the debt shall be suspended while
the administration continues.”
Section 9 is based on the general principle that when once
limitation has started to run, it will continue to do so unless it is
arrested by reason of any express statutory provision. Period of
limitation can be extended, inter alia, when cause of action was
cancelled such as by dismissal of a suit. Ordinarily, limitation
runs from the earliest time at which an action can be brought
and after it has commenced to run, there may be revival of a
right to sue where a previous satisfaction of a claim is nullified
with the result that the right to sue which has been suspended is
reanimated [Pioneer Bank Ltd v. Ramdev Banerjee, (1949 -50)
54 CWN 710]. In that case, the court distinguished between
suspension and interruption of limitation period.
9.11. Once time has begun to run, it will run continuously but
time ceases to run when the plaintiff commences legal
proceedings in respect of the cause of action in question. It is a
general principle of some importance that bringing an action
stops running of time for the purpose of that action only
[Andrew McGee, Limitation Periods, 4th Edn., Sweet &
Maxwell, chapter 2, para 1]. The Indian law also follows the
English law [James Skinner v. Kunwar Naunihal Singh, ILR
(1929) 51 All 367, (PC)]. Intervention of court in proceedings
65
( 2025:JHHC:10878 )
would prevent the period of limitation from running and date of
courts’ final order would be the date for start of limitation [N
Narasimhiah v. State of Karnataka, (1996) 3 SCC 88].
[Source : Tagore Law Lectures, U N Mitra, Law of Limitation
and Prescription, Sixteenth Edition, Volume 1, Sections 1-32 &
Articles 1-52]”
58. As per the materials placed on record read with the plaint and
its schedule as quoted above, the facts regarding four cheques are as
under: –
Sl. Date of 4 Cheque Payment Date of bill Interest has been
cheques amount credited to said to have calculated from
No.
issued to principal been raised the date of credit
principal defendant by the in the account of
defendant plaintiff the principal
by the upon the defendant till
proforma principal 13.04.2012 (suit
defendant defendant filed on
(bills not 21.04.2012)
proved)
1 Not 6227819.00 13.08.2008 10.11.2008 1543348.58
2 available 1433871.00 22.08.2008 05.12.2008 357080.33
3 6842028.00 22.10.2008 20.01.2009 1703886.62
4 5977469.00 01.01.2009 30.04.2009 1488583.42
59. This court finds that the plaintiff has asserted that he raised
Bill/Invoice No. 101 on 10.11.2008, Bill/Invoice No. 102 on 05.12.2008,
Bill/Invoice No. 103 on 20.11.2009 and the Fourth Bill/Invoice No. 104
on 30.04.2009 but no documentary evidence has been exhibited and this
fact was not proved by the plaintiff. This aspect of the matter has also
been taken note of by the learned trial court while dealing with the
point of limitation.
60. The schedule -A to the plaint reveals that the amount was
released in favour of the principal defendant by proforma defendant
totaling to Rs. 2,04,81,187/- on different dates i.e. 13.08.2008,
22.08.2008, 22.10.2008 and 01.01.2009 and 15% of the said amount
came to a total of Rs. 30,72,178.05 and as per the plaint, the plaintiff
had raised the bill to the extent of 15% vide invoice dated 10.11.2008,
05.12.2008, 20.01.2009 and 30.04.2009 against each cheque
respectively but these bills have not been exhibited or proved by the
plaintiff. The Schedule further reveals that the principal amount
66
( 2025:JHHC:10878 )against the four bills is Rs. 30,72,178.05 and the plaintiff has claimed
interest for 3 years 8 months, 3 years 7 months and 14 days, 3 years 5
months and 21 days and 3 years 3 months and 12 days till 13.04.2012
respectively and counted the period from the date of credit of the
cheque amount in the account of the principal defendant the suit was
certainly barred by limitation.
61. Since the contract for the execution of the work was between
the principal defendant and proforma defendant, it was stipulated in
clause-7 of the MOU-cum-Working Agreement dated 11.09.2007 that
the payment shall be directly released by proforma defendant in the
name of the principal defendant and the principal defendant
immediately on receipt of cheque from proforma defendant shall
issue a cheque in the name of the plaintiff which would be equivalent
to 15% of the value of cheque issued by proforma defendant, after
adjustment of taxes, duties and other miscellaneous expenses. It was
also stipulated that any expenditure made by the plaintiff in
procurement of material or otherwise, shall be reimbursed. Thus, the
payment to the plaintiff was to be made immediately upon the event ,
that is, receipt of the cheque by the principal defendant and
accordingly, the cause of action to receive 15% of the cheque amount
triggered upon receipt of the cheque by the principal defendant from
the proforma defendant. The date of receipt of four cheques have not
been brought on record but the date of credit of the cheques in the
account of the principal defendant has been brought on record which
is also claimed to have been followed by issuance of four bills by the
plaintiff but those four bills (bill number 101 to 104 -stated in
paragraph 18 to 20 of the plaint) have not been proved by the plaintiff
and the plaintiff has calculated the interest in schedule A on account
of default in payment from the date of credit in the account of the
principal defendant without referring to the bill number 101 to 104 –
stated in paragraph 18 to 20 of the plaint. Further, the figures of the
bill said to have been raised by the plaintiff bearing number 101 to
104 as stated in paragraph 18 to 20 of the plaint does not match with
their claim in the schedule A to the plaint. Even if the date of credit in
67
( 2025:JHHC:10878 )
the account of the principal defendant is taken into consideration as
the cause of action with respect to each cheque, then also the suit was
filed beyond the period of limitation of three years. Even if, assuming
that the date of raising the bill by the plaintiff is to be taken into
consideration as the date of cause of action with respect to each
cheque, then also suit with respect to three of them are barred by
limitation. The fact remains that the bills raised by the plaintiff have
not been proved by the plaintiff. However, this court is of the
considered view that the limitation with respect to claim relating to
four cheques will neither be counted from the date of credit in the
account of the principal defendant nor from the date of raising the
bills by the plaintiff nor from the date of refusal to pay in the year
2011 as the cause of action triggered upon receipt of cheque by the
principal defendant when seen in the light of the section 54 of the
Limitation Act, 1963 as applicable in the present case . So far as the
remaining claim is concerned there is no cause of action in terms of
MOU-cum-Working Agreement dated 11.09.2007 (Exhibit-5) as no
material has been brought on record that the remaining amount has
been paid to the principal defendant by the proforma defendant, much
less, the mode and manner of payment. Rather, the plaintiff has sought
a relief restraining the proforma defendant from releasing any further
amount to the principal defendant.
62. In view of the aforesaid findings, this court is of the considered
view that suit was barred by limitation with respect to the relief in
connection with four cheques and for the remaining claim there was
no cause of action to file the suit when seen in the light of the MOU-
cum-Working Agreement dated 11.09.2007 (Exhibit-5).
63. The findings of the learned Trial Court on the point of
limitation while holding the suit as barred by limitation is as under: –
“The case of the plaintiff is that he had entered into an agreement
vide agreement dated 11.09.2007 ……………………………. The
further case of the plaintiff is that the plaintiff was entitled for the
15% of the cheque amount issued by the SAIL/BSL as per clause 7
of the agreement, which stipulated that the payment shall be
released by BSL in the name of Principal Defendant and the
Principal Defendant immediately on receipt of the cheque issued68
( 2025:JHHC:10878 )by BSL shall in turn issue a cheque in the name of the plaintiff,
which shall be equivalent to the 15% of the cheque amount issued
by BSL after adjustment of the taxes, duties and misc. expenses
and further that any expenditure made by the plaintiff in
procurement of the materials or otherwise shall be reimbursed by
the Principal Defendant.
Now, question arises for consideration that whether the plaintiff
has filed any suit making made demand of 15% of value of the
cheque issued by BSL after adjustment taxes, duties and misc.
expenses within the period of limitation i.e. within three years
from the date of the issuance of cheque to the Principal
Defendant. It is the case of the plaintiff that he raised first invoice
on 10.11.2008 of Rs.2,15,081/- vide Bill/Invoice No. 101 and he
further raised Bill/Invoice No. 102 and 103 on 05.12.2008 and
20.01.2009 for the amount of Rs.10,26,304/- and Rs.7,95,000/-
respectively. Apart from that the plaintiff has also asserted that he
raised fourth bill vide Bill/Invoice No. 104, dated 30.04.2009 for
Rs.10,35,793/- against amount of Rs.62,27,819/- which was to be
paid to the defendant. The plaintiff has failed to prove any of the
invoice as mentioned in the plaint.
Furthermore, in the oral evidence, he has stated in paragraph 22
of his deposition that the agreement for the project was executed
on 26.03.2008 and the payment of three bills from BSL was made
on 13.08.2008, 22.08.2008 and 22.10.2008 and payment of the
fourth bill was made on 01.01.2009. Though, this fact was not
mentioned in the plaint by the plaintiff but in the Schedule ‘A’, he
has mentioned this. The plaintiff has asserted that he raised
Bill/Invoice No. 101 on 10.11.2008, Bill/Invoice No. 102 on
05.12.2008, Bill/Invoice No. 103 on 20.11.2009 and the Fourth
Bill/Invoice No. 104 on 30.04.2009 but in absence of any invoice
which could suggest that the plaintiff has made his demand within
the period of limitation of three years from the date he became
entitled for alleged 15% of the amount of the cheque issued in
favour of the Principal Defendant.
The plaintiff has marked for identification four running bills dated
13.08.2008, 22.08.2008, 22.10.2008 and 01.01.2009 by filing the
photocopy of the same and the same were marked for
identification as X to X/3 respectively. In the Schedule ‘A’ of the
plaint, the plaintiff has prepared demand details and from the
perusal of the Schedule ‘A’, it is clear that the plaintiff has
calculated the amount from the date of cause of action and all the
time durations are more than three years. For ready reference,
Schedule ‘A’ of the plaint is reproduced hereinbelow which
stipulates that the demand for the amount has been made by filing
suit after three years i.e. period of limitation.
69
( 2025:JHHC:10878 )
From the point of limitation to file the suit, the plaintiff was duty
bound to file the suit within three years from the date of accrual of
cause of action to institute the suit. As per the Memorandum of
Understanding cum Working Agreement dated 11.09.2007, the
Principal Defendant immediately on receipt of the cheque of BSL
shall issue a cheque in the name of the plaintiff which shall be
equivalent to 15% of the value of the cheque issue by BSL after
adjustment of taxes, duties and other misc. expenses. It is the case
of the plaintiff as per his plaint that he raised first invoice no. 101
on 10.11.2008 for Rs.2,15,081/-, second bill/invoice no. 102 on
05.12.2008 having amount of Rs.10,26,304/-, third bill/invoice no.
103, dated 20.01.2009 for Rs.7,95,000/- and fourth bill vide
Invoice No. 104, dated 30.04.2009 for Rs.10,35,794/- but the
plaintiff has not proved any of such invoice to show that he had
made demand on such particular date from the Principal
Defendant. On the other hand, in paragraph 23 of his deposition
the plaintiff has stated that the Principal Defendant got payment
from SAIL, Bokaro Steel Plant for his three running bills on
13.08.2008, 22.08.2008 and 22.10.2008 and the fourth running
bill was paid to the Principal Defendant on 01.01.2009. Even
accepting the version of the plaintiff as deposed by him in
paragraph 23 of his deposition, the last payment was made to the
Principal Defendant on 01.01.2009, the plaintiff had to file the
suit within three years from 01.01.2009 i.e. before 31.12.2011 but
the plaintiff has filed the instant suit on 28.04.2012 in this
manner, the suit of the plaintiff is barred by limitation.
From the pleading as well as from the deposition of the plaintiff, it
appears that the plaintiff has not concrete information regarding
payment of bill to the Principal Defendant and he is relying upon
photocopy of the payment slip and anybody can procure the
photocopy of the same. And the plaintiff has filed suit on
28.04.2012 which is certainly time barred in absence of filing of
suit within three years from the date of the payment of amount to
the Principal Defendant. Thus, in this manner, the suit is barred
by limitation in absence of any documentary evidence on record
to suggest that the plaintiff has filed the instant suit within a
period of limitation. As such the Issue No. 03 is decided against
the plaintiff and it is declared that the suit is barred by
limitation.”
64. This court finds that the learned Trial Court has also considered
all the aspects of the matter and has rightly decided the point of
limitation by interpreting clause 7 of the MOU-cum-Working
Agreement dated 11.09.2007 (Exhibit-5) and has also rightly referred
to the schedule A of the plaint while considering the cause of action
70
( 2025:JHHC:10878 )
to file the suit which triggered more than 3 years prior to filing of the
suit; the cause of action was held to be the dates on which the amount
of four cheques was credited in the account of the principal defendant
as was also the date taken by the plaintiff while calculating the interest
from the date the amount became due and payable. This is over and
above the fact that the amount of 15% was to be paid as per clause 7
of MOU-cum-Working Agreement dated 11.09.2007 (Exhibit-5)
immediately upon receipt of cheque and clause 7 did not refer to the
date on which the cheque would be credited in the account of the
principal defendant. Apparently, the learned trial court has stretched
itself to save the suit being barred by limitation by referring to the
dates of credit of the cheques in the account of the principal defendant
instead of receipt of cheques by the principal defendant, still the suit
was barred by limitation with respect to the claim arising out of the
four cheques.
65. Further, filing of the case before permanent lok Adalat, that too
for a much smaller claim, has no relevance as the same was filed after
expiry of the period of limitation. The law is well settled that once the
cause of action triggers, the physical running of time continues till the
period of limitation expires and thereafter the remedy becomes barred
by law of limitation. This court finds no reason to take a different
view from the learned trial court that the suit was barred by limitation.
The point of determination no. (i) is accordingly decided against the
plaintiff -appellant and in favour of the principal defendant-
respondent.
66. Apart from the aforesaid amount of 15% of the four cheques
received by the principal defendant, the plaintiff has stated in the
schedule that the balance amount as per the contract which was yet to
be received by the principal defendant from the proforma defendant
was to the extent of Rs. 57,96,577/- and also claimed that further
Rs.21.00 lakhs were yet to be released by the proforma defendant to
the principal defendant for extra work and therefore added a further
claim of 15% of the amount yet to be received and consequently the
total claim was Rs. 62,77,385.50 inclusive of interest on compounding
71
( 2025:JHHC:10878 )
basis on the amount already received. There is no material to show
that the principal defendant received any amount over and above the
aforesaid four cheques from the proforma defendant. Thus, no cause
of action has been shown for remaining claim over and above the
claim relating to the four cheques.
67. This is over and above the fact that the plaintiff has not been
able to prove performance of any work pursuant to or in relation to the
MOU-cum-Working Agreement dated 11.09.2007 (Exhibit-5) so as to
entitle any payment to the plaintiff by the principal defendant and it
has also been proved that MOU-cum-Working Agreement dated
11.09.2007 (Exhibit-5) was itself cancelled vide Exhibit – B dated
15.10.2007.
68. All the points of determination having been decided against the
plaintiff -appellant and in favour of the principal defendant-
respondent, this appeal is dismissed.
69. The petition seeking additional evidence vide I.A No. 2067 of
2024 has also been dismissed as mentioned above.
70. Let this judgement be communicated to the concerned court
through FAX/e-mail.
(Anubha Rawat Choudhary, J.)
Binit /AFR
72
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