Calcutta High Court
Dredging And Desiltation Company ... vs M/S. Mackintosh Burn & Northern ... on 11 April, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
IA No: GA 8 of 2021
In CS 242 of 2018
Dredging and Desiltation Company Private Limited
Versus
M/s. Mackintosh Burn & Northern Express
Consortium & Ors.
Mr. Sakya Sen
Mr. Sankarsan Sarkar
Mr. Sunil Singhania
Ms. Kalpana Singhania
...for the plaintiff
Mr. Ratul Das
Mr. Subhrajyoti Das
Mr. Sagnik Basu
Mr. Dilawar Khan
Mr. Mainak Biswas
...for the defendant No. 3
Mr. Arnab Chakraborty
Mr. P. Bhowmick
...for the defendant Nos. 1 and 2
Hearing concluded on : 23.02.2023
2
Judgment on : 11.04.2023
Krishna Rao, J.:
Plaintiff has filed the instant application under Order XIIIA of the
Code of Civil Procedure, 1908 as amended by the Commercial Courts Act,
2015 praying for summary Judgment for a sum of Rs. 1,93,12,425/- as
admitted by the defendant no. 1 in its letter dated 16th August, 2017.
In the month of November 2017, in view of ensuing Ganga Sagar Mela,
2017 and improve the navigability of certain channels in River Muriganga
for a smooth movement of cargo and passenger vessels for transportation of
cargo, bikers and pilgrims, Inland Waterways Authority of India, on behalf of
the government of West Bengal, the proforma defendant no. 5 invited online
tender having experience of using cutter suction dredgers in two cover
systems. The plaintiff and one M/s. RDL IDS PL JV were the only
contractors who have submitted tender in respect of the tender Notice. None
of the said two tenders were accepted and the tender notice was not
materialized.
By a letter dated 7th December, 2016, the Inland Water Authority of
India issued a letter to the defendant No. 2 requested to make an offer for
carrying out dredging at the jetties at Lot No. 8 and Chemaguri Khal on
emergent basis by deploying cutter suction dredgers capable of dredging at
least 250 cubic meters of solid per hour within the aforesaid tender at the
rate of Rs. 230/- per cubic metre. On receipt of the said letter, the defendant
no. 2 had called the plaintiff to participate in a meeting held at the office of
Chief Secretary, Irrigation and Waterways Directorate at Jal Sampad
3
Bhawan, Salt Lake City, Kolkata. In the meeting, the plaintiff was requested
by the defendant no. 2 to consider taking up the aforesaid dredging work
and to submit its offer.
On 9th December, 2016, the plaintiff had submitted its offer to do the
job as per the terms and conditions mentioned in the said letter to the
defendant no. 2 by giving its willingness to undertake the said dredging
work. Following the offer of the plaintiff, the defendant no.1 by a letter dated
9th December, 2016, confirmed its willingness to the Inland Waterways
Authority of India to carry out the above-mentioned dredging work. By a
letter dated 14th December, 2016, the Government of West Bengal awarded
the work in favour of the defendant no. 2 as well as in favour of another
Company namely M/s. Reach Dredging Ltd.
By letter dated 15th December, 2016, issued by the defendant no. 1 in
favour of the plaintiff requesting the plaintiff to take up the dredging work
with respect of Lot No. 8 : Area ABCDEFGH for an estimated quantity of
2,00,676 cubic metres on the terms and conditions as mentioned in the said
letter.
Mr. Sakya Sen, Learned Counsel representing the plaintiff submits
that the defendant no. 5 by a letter dated 14th December, 2016 accepted the
offer of the defendant no.1 at the rate of Rs. 225/- per cubic metre for
completing the dredging and desilation work. The defendant no. 1 had
accepted the offer at the rate of Rs. 225/- per cubic metre and offered
plaintiff for the said work at the rate of Rs. 202.50/- per cubic metre. Mr.
Sen submits that as per clause 8 of the offer letter by and between the
4
plaintiff and the defendant no.1, the defendant no.1 would give payment to
the plaintiff as soon as they receive the same from the defendant no. 5.
Mr. Sen submits that defendant no. 1 along with its constituents,
being the defendant nos. 2 and 3 were only acting as commissioning agent
by delegating the allotted work issued by the defendant no. 5 to the plaintiff
herein. Mr. Sen submits that after completing of entire work, the plaintiff
had raised invoice for a total amount of Rs. 9,07,00,155/- dated 20th March,
2017 but in spite of several requests made by the plaintiff, the defendants
did not pay any amount to the plaintiff.
Mr. Sen relied upon the letter dated 27th February, 2017 addressed to
the Additional District Magistrate, being the authority of defendant no. 5
and submits that the defendants have admitted the quantity dredged by the
plaintiff i.e. 3,88,656 cubic metre. He further submits that the defendant
No. 1 had admitted the value of the invoice that is amounting to Rs.
10,05,64,740/- calculating the quantity dredged multiplied by Rs. 225/- per
cubic metre. He further submits that the defendant no.1 further admitted
the number of daily hours dredging was continued by the plaintiff for the
period from 17th December, 2016 to 16th January, 2017 at Lot No. 8 Jetty to
passenger jetty no. 1 at Chemaguri Khal.
Mr. Sen submits that the defendant no. 1 by a letter dated 16th
August, 2017 addressed to the District Magistrate being the Authority of the
defendant no. 5 admitted to work of dredging and disilation was successfully
completed by the defendant no. 1 in January, 2017 and the defendant no.1
had already forwarded the invoice raised by the plaintiff and is awaiting the
5
full payment of the bill amounting to Rs. 10,05,64,740/- inclusive of service
tax. He submits that in the said letter, the defendant no.1 further admitted
that the plaintiff had completed 3,88,656 cubic metre of dredging work. Mr.
Sen submits that it was further admitted that the defendant no.1 that the
defendant no. 5 had already released payment of Rs. 2,14,58,250/- for the
quantity of 95,370 cubic metre dredged by the petitioner.
Mr. Sen submits that defendant no. 5 had given a contract to the
defendant no.1 for dredging work at the rate of Rs. 225/- per cubic metre
and the defendant no.1 had sub contracted the said work to the plaintiff at
the rate of Rs. 202.50 per cubic metre and thus it is back-to-back contract
and the payment was supposed to be received by the plaintiff on a back-to-
back contract basis in terms of clause 8 of the contract by and between the
plaintiff and the defendant no.1 dated 15th December, 2016.
Mr. Sen submits that defendant no.1 had admitted the quantity of silt
dredged by the petitioner being 388656 cubic metre and the defendant no.1
had forwarded the invoice raised by the plaintiff to the defendant no. 5 for
release of payment and the defendant no.1 had admitted that in lieu of bill
raised by the plaintiff on the defendant no.1, the defendant no.1 had
received a sum of Rs. 2,14,58,250/- for a quantity of 95370 cubic metre of
silt dredged.
Mr. Sen submits that as per the admission, defendant nos. 1, 2 and 3
are liable to pay a sum of Rs. 1,93,12,425/- to the plaintiff in terms of the
agreement by and between the defendant no.1 and the plaintiff dated 15th
6
December, 2016 is specifically in terms of clause 8 being 90% of the sum
already received by the defendant no.1 ie. Rs.1,93,12,425/-.
Mr. Sen relied upon the following judgments:
i. (2017) 1 SCC 568 (IDBI Trusteeship Services Ltd. -vs-
Hubtown).
ii. (2017) 8 SCC 237 (Kanchan Udyog Limited -vs- United
Sprits Limited).
iii. (1974) 2 SCC 729 (P. Dasa Muni Reddy -vs- P. Appa Rao).
Mr. Debnath Ghosh, Learned Advocate representing the defendant
nos. 1 and 2 and submits that the plaintiff raised invoice dated 20th March,
2017 for Rs. 9.07 Crore under the cover of the letter dated 23rd March, 2017
but the bill has not been raised as per the terms of the Letter of Intent but
the bill has been raised on the basis of dredging hours and has not been
certified KoPT or the appropriate Authority.
Mr. Ghosh submits that the plaintiff has to submit bills after being
satisfied by the proforma defendant no. 5 as per Letter of Intent. He submits
that the plaintiff has not submitted completion certificate for finalisation of
the bill. He submits that the invoice raised by the plaintiff is not acceptable
to the defendant no.1 since plaintiff had failed to submit bill as per certified
dredged quantity.
Mr. Ghosh submits that there is no admission on the part of the
defendant that the payment would be released in favour of the plaintiff even
if the bills were raised on the basis of dredging hours and if such bills were
7
not certified by the KoPT or the appropriate authority contrary to the
contract between plaintiff, the defendant no. 1 and the defendant no. 2. Mr.
Ghosh submits that the defendant nos. 1 and 2 have several time requested
the plaintiff to raise bills as per the terms of the contract between the parties
but that plaintiff failed to submit bill in terms of the contract.
Mr. Ghosh submits that defendant no. 1 and 2 have rebutted the bills
submitted by the plaintiff vide email dated 13th February, 2018 informing
that the invoice dated 20th March, 2017 has not been accepted.
Mr. Ghosh submits that admittedly no summon has been served upon
the defendant nos.1 and 2 after the transfer of suit before this Court and
thus the procedure contemplated under Order XIIIA, Rule 2 of the Code of
Civil Procedure, which directs that an application may apply for summary
judgment at any time after summons has been served on the defendant but
the plaintiff has not followed the procedure.
Mr. Ghosh submits that the bills submitted by the plaintiff are neither
admitted documents nor any undisputed facts from which it can be inferred
that summary judgment can be passed. Mr. Ghosh submits that a definite
difference has been adopted by the defendant denying the authenticity and
veracity of the bills and highlighted the discrepancies between the bill raised
and the bill to have been raised in terms of the contract.
Mr. Ghosh submits that the plaintiff has to prove the bills by
adducing evidence to satisfy this Court that the plaintiff has submitted the
bill in terms of the contract.
8
Mr. Ghosh relied upon the following judgements:
i. 2022 SCC Online Del 2862 (Interiors Products Private
Limited -vs- Rahul Bhandari)
ii. 2021 SCC Online Cal 526 (MadhusriKonar -vs- New
Central Book Agency)
iii. (2011) 15 SCC 273 (Himani Alloys Ltd -vs- Tata Steel
Limited)
iv. (2010) 6 SCC 601 (Jeevan Diesels -vs- Jasbir Singh)
v. (2020) 13 SCC 564 (Shree Ambica Medical Stores -vs-Surat
Peoples Cooperative Bank Limited).
Learned Counsel representing the defendant no. 3 submits that he
has adopted the submission made by the Counsel for the defendant nos. 1 &
2 and further submits that as per condition no. 3 of the contract, the work
completion or progress is to be certified by the competent authority; KoPT or
other nominated by the Administration.
Counsel for the defendant no. 3 submits that the invoice was raised
on estimated calculation by the plaintiff taking into consideration of
operation of four numbers of machineries and minimal optimal output
quantity of the machines and not on actual quantity of Silt dredged which
requires certification by the KoPT.
Learned Counsel for the defendant no. 3 submits that since the
certification had become available, the defendant no.1 called upon the
plaintiff to rectify its invoice and raise it in terms of the contract but the
plaintiff has not taken any steps and had filed the instant suit.
9
Learned Counsel for the defendant no. 3 submits that there is no
admission as claimed by the plaintiff. He submits that on 28th February,
2017, the defendant no.1 forwarded the invoice of the plaintiff because till
that time, there was no certified quantity of work was done certificate was
available with the defendant no.1. He submits that on the same day i.e. on
28th February, 2017, the defendant no.1 received the certified quantity when
KoPT submitted the documents by letter dated 27th February, 2017.
Learned Counsel for the defendant no. 3 submits that there is a
difference between obligation to make payment and the mode and manner of
making payment.
Counsel for the defendant no. 3 had relied upon the following
judgements:
i. (1911) 2 Ch 279 (Tewkesbury Gas Company, Tysoe -vs- The
Company).
ii. ILR (1964)1 P&H 143 (Mrs. I.K. Sohan Singh -vs- State Bank
of India).
iii. AIR 1956 Bom 151 (M/s. Navnital & Co. -vs- Kishanchand &
Co.).
The work order issued by the proforma defendant no. 5 to the
defendant no. 1 on 14th December, 2016 reads as follows :
"GOVERNEMNT OF WEST BENGAL
Office Of The District Magistrate
South 24-Parganas, Alipore, Kolkata - 700 027
(An ISO 9001 : 2008 Certified Organization)
Memo No : 311(2)/CON/G Date : 14.12.2016
10
To,
1. M/s Mackintosh Burn Ltd, 8, N.S. Road, Kolkata- 700 001
2. M/s Reach Dredging Ltd., 1, Garstin Place, Kolkata-700
001
Sub : Dredging for Ganga Sagar Mela-2017
Sir,
With reference to letter No. IWAI/MD/247/2016-17 dated
09-12-16 and F. No. IWAI/MD/247/2016-17 dated 14-12-16, you
are requested to kindly take up dredging work as follows :-
AREA [REF QUANTITY TO AGENCY
KOPT BE DREDGED WORKING
HYDROGRAPH (APPROX) ON
IC SURVEY NATIONAL
AND PWD WATERWAYS
MECH UNDER IWAI
ESTIMATES] AND
REFERENCE
Lot 8 - Area 3,13,676 Cubic The
ABCDEFGH Metres - Mackintosh
1,13,000 Cubic Burn Limited
Metres earlier
assigned to [WAI
= 2,00,676 Cubic
Metres
Lot 8 - Area 55,826 Cubic Reach
PQRS - Jetty 2 Metres Dredging
Benuban to 54,968 Cubic Limited
Mohana in Metres
Chemaguri
Creek
CONDITIONS :
1. Payment will be made @ Rs. 225/- per cubic meter of actual
quantity silt dredged, as approved by the State Government.
2. Excavated silt should be deposited on the shore/ in the
trenches provided by local administration to prevent back
flow into river channel and enable measurement of quantity
extracted.
3. Work completion/progress is to be certified by the competent
KoPT/Others nominated by the administration.
11
4. Local officials will maintain liaison and guide on the
channels to be dredged.
5. Large scale movement of pilgrims, visitors and vehicles will
commence shortly. All effort should be made to complete
dredging by 05-01-2017.
6. Each agency must mobilize at least two dredgers of at least
400 m per hour of solids capacity and adequate pipelines to
carry away silt.
7. The Mela Committee will periodically review progress of
dredging and may re-assign the work among selected
agencies in the interest of timely completion and safe transit.
Yours faithfully
Additional District Magistrate (General),
South 24 Parganas."
On receipt of work order dated 14th December, 2016, the defendant
no. 1 had back-to-back issued the work order to the plaintiff dated 15th
December, 2016.
"Ref: MBANC/GSM2017/2016-17
Dated: 15th December 2016
To:
Dredging & Desiltation Co Pvt Ltd
167, Old China Bazar Street, 2nd Floor
Kolkata 700001
Sub: LOI for Dredging for Ganga Sagar Mela-2017
Ref: Your Letter DDC/171/16-17 dated 9.12.2016
With reference to the above you are requested to kindly take up
dredging work as follows :
QUANTITY TO BE
AREA (REF KOPT DREDGED (APPROX)
HYDROGRAPHIC SURVEY
AND PWD MECH
ESTIMATES]
12
Lot 8 - Area ABCDEFGH 2,00,676 Cubic Meters
CONDITIONS :
1. Payment will be made at Rs. 202.50 per Cubic Meter of
actual quantity silt dredged, as approved by the State
Government.
2. Excavated silt should be deposited on the shore/ in the
trenches provided by local administration to prevent back
flow into river channel and enable measurement of quantity
extracted,
3. Work completion/ progress is to be certified by the competent
authority : KoPT/Others nominated by the administration.
4. Local officials will maintain liaison and guide on the
channels to be dredged.
5. Large scale movement of pilgrims, visitors and vehicles will
commence shortly. All effort should be made to complete
dredging by 05-01-2017.
6. You must mobilize at least two dredges at least 400 m per
hour of solids capacity each and adequate pipelines to carry
away silt.
7. The Mela Committee will periodically review progress of
dredging and may re-assign the work among selected
agencies in the interest of timely completion and safe transit.
8. Payment will be disbursed immediately as receive from
client.
9. Taxes will be deducted as per govt rules from bills.
Yours faithfully,
For Mackintosh Burn and Northern express Consortium
Bireswar Saha
Dy General Manager."
On 23rd March, 2017, the plaintiff has raised bill for an amount of Rs.
90700155/- to the defendant no. 1. Along with the bill, the plaintiff has
13
informed the defendant no. 1 by a letter dated 23.03.2017 that the plaintiff
has already submitted copy of daily dredging log of all the dredgers along
with summary statement showing daily dredging hours for the entire period
of operation. The plaintiff also informed that the statement of dredging
hours will find that the plaintiff dredged work for 1065.30 hours at Lot No. 8
and 151.35 hours at Chemaguri Khal taking into consideration of minimum
optimum output of 320 cubic metre solids per hour and the total dredging
quantity comes to 340960 cubic metre for Lot No. 8 and 48520 cubic metre
for Chemaguri Khal.
On 28th February, 2017, the defendant no. 1 had requested the
proforma defendant no. 5 regarding the details of the daily dredging hours
for the period from 17th December, 2016 to 16th January, 2017 at Lot No. 8
jetty to passenger Jetty-1 and Chemaguri Khal and in the said
communication, the defendant no.1 had informed the defendant no. 5, the
quantity and value of the work as intimated by the plaintiff to the defendant
no.1.
By a letter dated 16th August, 2017, the defendant no.1 has admitted
that the work has been completed in the month of January, 2017 but the
authorities have released the payment of Rs. 2,14,58,2504/- a quantity of
95,370 cubic metre approximately and requested the authorities to release
the balance payment of Rs. 7,91,06,709/-.
Now, the question in the present application is whether the amount of
Rs. 2,41,50,250/- received by the defendant no.1, the plaintiff is entitled to
get 90% amount out of the same.
14
Admittedly the pro forma defendant No.5 issued work order to the
defendant no.1 to execute the work at the rate of Rs. 225/- per cubic metre
actual quantity silt as approved by the State government. The defendant
no.1 has authorised the plaintiff to execute the said work at the rate of Rs.
202.50 per cubic metre. The plaintiff had submitted bill for a total quantity
of 3,89,480 cubic metre for a total amount of Rs. 90700155/-. The
defendant no.1 has not disputed the quantity and the amount raised by the
plaintiff and accordingly the defendant no. 1 had requested the respondent
no. 5 for release of the amount as per the quantity claimed by the plaintiff
and the authorities have released only Rs. 2,14,58,250/- for a quantity of
95,370 cubic metre. Now the defendants have raised the issue though the
plaintiff had submitted the Bill but the plaintiff has not submitted any
certificate from the competent authority with regard to the completion of
work as per clause 3 of the terms and condition of the letter dated 14th
December, 2016.
Initially the respondent no. 5 had issued work order to the defendant
no.1 on 14th December, 2016 wherein the condition no. 3 reads as follows;
"work completion/progress to be certified by the
competent authority KoPT/others nominated by the
administration."
The similar condition was imposed upon the plaintiff when the
defendant no.1 has authorized the plaintiff to execute the said work at the
rate of Rs. 202.50 per cubic metre.
It is not the case of the defendants that the defendant no.1 had
submitted completion certificate in terms of clause 3 of the condition of the
letter dated 14th December, 2016. From record, it reveals that the details
submitted by the plaintiff was accepted by the defendant no.1 and on the
basis of the invoices raised by the plaintiff, the defendant no.1 had
requested the defendant no. 5 to release the amount. The defendant no. 5
had released only an amount of Rs. 2,14,58,250/- for a quantity of 95,370
cubic metre.
Clause 8 of the conditions of the letter dated 15th December, 2016,
wherein the defendant no.1 had given the sub-contract to the plaintiff, it is
mentioned that "payment will be disbursed immediately as received from
client".
In the present case, the defendant no. 5 has released an amount of
Rs. 2,14,58,250.00/- quantities of 95370 cubic metre in favour of the
defendant no.1. It is admitted that the defendant no.1 had not procured any
completion certificate from the competent authority as required in clause 3
of the work order dated 14th December, 2016 issued by the defendant no. 5
to the defendant no.1. The defendant no. 5 has released the amount in
favour of defendant no.1 without any completion certificate submitted by
defendant.
In the short notes of submission filed by the defendant no. 3, the
defendant no. 3 admitted that:
"m. Since the certificate had become available, the
defendant no.1 called upon the plaintiff to rectify its
invoice and raise it in terms of the contract. The plaintiff
has not taken any steps and/or refuse to do so and has
filed the suit.
3(ii). There is no admission as incorrectly claimed
by the plaintiff on the part of the defendant no.1. On
28th February ,2017, the defendant no.1 forwarded the
invoice of the plaintiff because at that time, there was
no certified quantity of work done available to the
defendant no.1. On the same day, that is 28th February,
2017, the defendant no.1 had received the certified
quantities that become available when KoPT submitted
the document under the cover of letter dated 27th
February, 2017. There is, therefore, no admission of the
defendant no.1 to 3. Further the state of West Bengal
has also rejected plaintiff's claim made in a different
and inflated rate."
In the above paragraphs, the defendant no. 3 has admitted that
defendant no. 1 had the certificate and the said certificate was issued by
KoPT on 27th February, 2017.
Certificate issued by the Director Marine Department, KoPT dated 27th
February, 2017 reads as follows :
"No. Mrn/80/51 Date : February 27, 2017
Ms. Joyoshi Das Gupta, IAS
Additional District Magistrate (General),
South 24 Parganas, Alipore
Mela Officer, Ganga Sagar
Sub : Estimate of quantity of silt extracted during dredging
Madam,
Further to this office letter no. Mrn/80/18, dated 25th January,
2017 the detailed block wise difference of volume alongwith names of
dredgers deployed therein enclosed.
Yours faithfully
(Capt. J. J. Biswas)
Director, Marine Department
AREA BAME OF NAME OF PERIOD DIFF. IN REMARKS
DREDGERS PARTY OF QUANTITY
DREDGING BET.
SURVEY
DATED
15.12.2016
&
10.01.2017
ABCD TAPI IWAI 04.12.16 1255 CU.M This is
TO Considering
15.12.16 the re-
siltation
trend
between
the survey
on 31st
August
2016 and
15th
December,
2016.
ABCD TAPI IWAI 15.12.16 9012 CU.M
TO
09.01.17
CDEFG TAPI IWAI 15.12.16 7785 CU.M
TO
09.01.17
CDEFG NETAI & MACKINTOSH 17.12.16 7785 CU.M
SAI RAM TO
09.01.17
FIJG SAI RAM MACKINTOSH 17.12.16 63513
KRISHNA, TO CU.M
BADANI & 09.01.17
NETAI
OPQR K2 REACH 22.12.16 9678 CU.M
DREDGING TO
06.01.17
CHEMAGURI SAI RAM MACKINTOSH 04.01.17 24072
CREEK TO CU.M
10.01.17
Total 1,23,100
CU.M
The certificate issued by KoPT dated 27th February, 2017, certified the
quantity of 95370 cubic metre on the basis of which the defendant no. 5 had
released the amount of Rs. 2,14,58,250/- in favour of the defendant no. 1. It
is crystal clear that the defendant no. 1 had the certificate and the
defendant no. 5 had released the amount in favour of defendant no.1 and
thus as per Clause 8 of the condition of the letter dated 15th December,
2016, the defendant no.1 is under the obligation to disburse the amount to
the plaintiff as claimed by the plaintiff.
In the case of IDBI Trusteeship Services Limited (Supra), Hon'ble
Supreme Court held that if any part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to defend the suit (even
if triable issues or a substantial defence is raised), shall not be granted
unless the amount so admitted to be due is deposited by the defendant in
court.
In the case of Kanchan Udyog Limited (Supra), the Hon'ble Supreme
Court held that if a party entitled to a benefit under a contract is denied the
same, resulting in violation of legal right, and does not protest, foregoing its
legal right, and accepts compliance in another form and manner, issues will
arise with regard to waiver or acquiescence by conduct.
In the case of P. Dasa Muni Reddy (Supra), the Hon'ble Supreme
Court held that abandonment of right is much more than mere waiver
acquiescence or latches. The doctrine which the Courts of law will recognise
is a rule of judicial policy that a person will not be allowed to take
inconsistent position to gain advantage through the aid of courts. Waiver is
consensual in nature. It implies a meeting of the minds. It is a matter of
mutual intention. The doctrine which the courts of law will recognise is a
rule of judicial policy that a person will not be allowed to take inconsistent
position to gain advantage through the aid of courts. Waiver sometimes
partakes of the nature of an election.
The judgments relied by the defendants are distinguishable in the
facts and circumstances of the present case.
In the present case, the work order issued by the defendant no. 5 to
the defendant no. 1 and the work order issued by the defendant no.1 to the
plaintiff contains the clause that work completion/progress to be certified by
the competent authority i.e. KoPT/others nominated by the administration.
The defendants claim that the plaintiff has not submitted the above-
mentioned certificate and as such payment cannot be released without the
certificate. The said clause does not reveal that the bill submitted by the
plaintiff is to be accompanied with the completion certificate. Admittedly on
27th February, 2017, the competent authority had issued certificate and on
the basis of the certificate, the defendant No.5 had released an amount of
Rs. 2,14,58,250/- for the quantity of work of 95,370 cubic metre. It is not
the case of the defendant no. 1 that the defendant no. 1 had submitted
certificate. The certificate dated 27th February, 2017 issued by the Director,
Marie Department to the defendant no. 1 and accordingly payment was
released for the said quantity.
As per Clause 8 of the work order issued by the defendant no.1 to the
plaintiff payment is to be disbursed immediately after receipt of payment by
the defendant no.1. Admittedly, defendant no.1 had received the amount of
Rs. 2,14,58,250/- and thus the defendant no.1 cannot deny for the payment
to the plaintiff in terms of work order dated 15th December, 2016.
In view of the above prayer (a) of the Notice of Motion is allowed.
G.A. 8 of 2021 is thus disposed of.
(Krishna Rao, J.)
Later :
Counsel for the defendant nos. 1 and 2 prayed for stay of the
operation of the order. Counsel for the plaintiff raised objection. Considered
the submission made by the respective parties. Prayer is refused.
(Krishna Rao, J.)
