Delhi High Court
Rudraksha Constructions vs Tele Communications Consultants ... on 11 September, 2014
$~ 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2659/2011
% Judgment dated 11.09.2014
RUDRAKSHA CONSTRUCTIONS ..... Plaintiff
Through: Mr.Sushil Kumar, Advocate
versus
TELE COMMUNICATIONS CONSULTANTS
INDIA LTD & ANR ..... Defendant
Through: Mr.P.K. Bansal, Advocate for
the defendant no.1
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
I.A. 2695/2013 & I.A. 16697/2012
1. I.A. 2695/2013 has been filed by the defendant no.2 under Order 7 Rule
11 read with 151 CPC for dismissal of the suit on the ground that the
present suit is barred by limitation and for want of cause of action.
2. I.A. 16697/2012 has been filed by the defendant no.1 under Order 7 Rule
11 read with 151 CPC for rejection of plaint and for dismissal of the suit.
3. Counsel for the defendants submit that the suit filed by the plaintiff is
hopelessly barred by limitation; and a bare reading of the plaint would
show that the payments sought are with respect to the bills which pertain
to the year 2002, whereas the suit was instituted on 15.9.2011 i.e. after a
period of almost 10 years.
4. Counsel for the plaintiff on the other hand submits that the suit has been
filed within the period of limitation as various communications were
addressed from the year 2003 onwards to the defendants and the last
CS(OS)No.2659-2011 Page 1 of 9
communication being of 17.7.2006. A legal notice was also issued on
27.8.2008, which was replied to by the defendant on 16.9.2008.
5. Mr.Kumar submits that the stand of the defendant has all along been that
the defendants were not in possession of bills raised by the plaintiff and
thus the suit filed by the plaintiff is within the period of limitation.
6. While dealing with an application under Order 7 Rule 11 CPC, the plaint
is to be read as a whole and a meaningful reading of the plaint should
show as to whether the present suit has been instituted within the period
of limitation, which is admittedly three years.
7. In paragraph 14 of the plaint, it has been averred that the plaintiff
completed the awarded work under the original project by 31.1.2002. The
plaintiff lodged six final bills on 28.2.2002 details of the bills are
reproduced under:
Sl.No. Bill No. Date Amount (Rs.)
1. TCIL/JSM/C-05/99/14 20.02.2002 74,747.70
2. TCIL/JSM/C-04/99/08 20.02.2002 5,24,005.70
3. TCIL/JSM/C-05/99/15 20.02.2002 3,10,719.00
4. TCIL/JSM/C-06/99/12 20.02.2002 2,61,372.00
5. TCIL/JSM/C-05/99/08 20.02.2002 1,43,266.00
6. TCIL/JSM/C-06/99/16 20.02.2002 14,266.69
Total 13,28,602.00
8. As per para 15 of the plaint, an averment has been made that along with
six final bills, the plaintiff had submitted conciliation sheet along with
sinkage 1% duly signed by the officials of the defendants and the plaintiff.
As per the final reconciliation sheet, shortage of stores was calculated at
Rs.1,99,561/-.
CS(OS)No.2659-2011 Page 2 of 9
9. In paragraph 16, the plaintiff goes on to state that it is a matter of record
that the plaintiff completed the work, which involved 150 k.m. of cable
laying, more than 1000 DPS, more than 1000 joints and 25 pillars in and
rocky area spread over 10 kms. It would be useful to reproduce
paragraphs 21 and 22 of the plaint, which read as under:
―21. That plaintiff sent a number of communications oral as well as
written to the defendants and demanded the money due from them.
These included letters dated 27.04.2003, 17.11.2003, 19.01.2004,
09.05.2004, 20.04.2004, 05.10.2004, 27.03.2005, 30.05.2005,
30.07.2005, 27.09.2005, 05.01.2006, 23.05.2006, 20.05.2006,
12.06.2006 and 17.07.2006.
22. That the respondent did not pay any heed to the request for
the plaintiff pertaining to release of payment which was already
over due long time back and refused to pay the plaintiff his dues on
some or the other pretext including no receipt of the bills and thus,
deprived the plaintiff of its rightful money.‖
10. The amount sought to be recovered has been detailed in paragraph 28 of
the plaint, which is reproduced below:
―28. That amount due from TCIL to the plaintiff is as under:-
(i) Retained against 10% bank guarantee Rs.7,50,000/-
and 15% against running bills prior to
2002.
(ii) Against six final bills submitted by Rs.11,73,618/-
TCIL to BSNL on 28.02.2002 towards
labour charges.
(iii) Amount withheld by BSNL from Rs.3,30,756/-
plaintiff from different bills.
(iv) Withheld illegally against security Rs.45,574/-
deposit.
Total Rs.22,99,948/-
Recovery from Stores (-) Rs.1,99,561/-
Audit Recovery (-) Rs.41,358/-
Outstanding Balance Rs.20,59,029/-
Interest @ 12% till date Rs.16,06,020/-
Net payable Rs.36,65,020/-
(Rupees thirty six lacs sixty five thousand and twenty only)‖
11. As per paragraph 29 cause of action for filing the present suit arose when
the plaintiff completed the work awarded under the original project by
31.1.2002 and lodged six final bills on 28.2.2002 aggregating to
Rs.13,28,602/-. It would also be useful to reproduce paragraph 29 of the
plaint:
―29. That the cause of action for filing the present suit arose when
upon the Plaintiff completing the work awarded under the original
project and both the said incomplete projects, by 31.01.2002 as per
the terms of contract with the Defendant No.1 and lodged the six
final bills on 28.02.2002 aggregating Rs.13,28,602.00.
The cause of action arose thereafter when the Plaintiff sent
repeated communications and reminders to the Defendant No.1 to
clear the said bills and release the monies due thereunder. The
cause of action further arose when the respondent did not pay any
heed to the request for the plaintiff pertaining to release of payment
which was already over due long time back.
The cause of action further arose when the plaintiff sent a
legal notice through his counsel dated 27.08.2008 to the defendants
and communicated to them that in case the plaintiff did not receive
its dues in time the recourse to legal proceedings could be initiated
and which letter was replied to by the Defendant No.1 vide letter
dated 16.09.2008.
The cause of action thereafter arose when till the year 2011
the concerned officials of the Defendant No.1 made the same
pretext of non availability of bills with them refused to make the
said payment due under the said bills to the Plaintiff.
The cause of action further arose when the Plaintiff obtained
relevant papers from the Defendant No.2 in different batches upto
July 2011 and which papers revealed that the bills were always
available with the Defendant No.2 and the Defendant No.2 had
made illegal recoveries of Rs.18,16,420.00 from the amounts due,
owing and payable to the Plaintiff.
The cause of action is a continuing and a subsisting one as
the Defendant No.1 continues to deny to the Plaintiff the amounts
due, owing and payable to the Plaintiff under the said bills
alongwith interest thereon.‖
12. Counsel for the plaintiff submits that since the defendants were not
responding to various communications addressed to them, the plaintiff
had to take recourse under the Right to Information Act and after relevant
documents were received in July, 2011, the present suit was filed on
15.9.2011.
13. A bare reading of the plaint shows that the plaintiff completed the project
on 31.1.2002 (as per paragraph 14 of the plaint). Plaintiff submitted six
bills on 28.2.2002 as also detailed in the same paragraph. As per
paragraph 21 of the plaint, letters were addressed by the plaintiff to the
defendant between the period 27.4.2003 to 17.7.2006. Admittedly, the
defendant did not acknowledge the liability at any stage much less during
the period of limitation.
14. The key question which comes up for consideration before this Court as
has been argued by counsel for the plaintiff, is as to whether the period of
limitation would commence when the bills were submitted on 28.2.2002
or when the plaintiff addressed various communications to the defendant
including letters dated 27.04.2003, 17.11.2003, 19.01.2004, 09.05.2004,
20.04.2004, 05.10.2004, 27.03.2005, 30.05.2005, 30.07.2005, 27.09.2005,
05.01.2006, 23.05.2006, 20.05.2006, 12.06.2006 and 17.07.2006 and
when the legal notice was issued i.e. on 27.8.2008. Would the period of
limitation stand extended by the reply received by the plaintiff from the
defendant dated 16.9.2008 or would the period of limitation commence
from the year 2011 when the plaintiff received various documents from
the defendants under the Right to Information Act, as submitted by
counsel for the plaintiff.
15. The admitted case of the plaintiff is that the bills pertain to the work
carried out by the plaintiff, which stood concluded on 13.1.2002. As per
paragraph 14 bills became due and payable and final bills were raised on
28.2.2002. In my view the period of limitation would commence on
28.2.2002 when six bills were raised by the plaintiff upon the defendants.
The communications which have been relied upon during the course of
hearing are letters dated 31.8.2006, 23.3.2007 and 11.4.2007. Reliance is
also placed on the reply dated 16.9.2008 to the legal notice sent by the
plaintiff, which reads as under:
―16.09.2008
Shri Pramod Mishra
Advocate
Siddhivinayak Committee (Opp. Hema Industrial Estate)
Meghwadi
Jogeshwari(E)
Mumbai-400060.
Sub: Your Notice to TCIL dated 27.08.08 on behalf of your
client M/s Rudraksha Construction for work in Jaisalmer
(Regd.)
Project No.JSM/C-04/99, JSM/C-05/99 and JSM/C-06/99
Dear Sir,
This is in reference to your above letter dated 27.08.08 sent on
behalf of your client M/s Rudraksha Construction.
In this regard, it is submitted that all your claims and
allegations are false, wrong and therefore denied. We would
like to inform you that letter dated 31.08.06, 22.08.06,
04.08.06 and 07.07.06 have been sent to your client M/s
Rudraksha Construction for furnishing details of work done
supported by authenticated signed copy of MB, Store
reconciliation statement signed by BSNL, AT Sheets, As Built
drawings, etc.
The above documents have still not been furnished by your
client M/s Rudraksha Construction till date which shows that
it has no case. Furthermore, it is stated that all claims raised
by your client are hopelessly time-barred.
This letter is without prejudice to rights and contentions of
TCIL that may be available to TCIL under facts of law.
Thanking You,
Yours faithfully,
For Telecommunications Consultants India Limited
Sd/-
(N.N. Ray)
Group General Manager (CN).‖
16. Reading of the letter dated 16.9.2008, which is a reply to the legal notice
would show that the defendant has nowhere accepted its liability. In fact
the defendant has not only refuted the demand but has also informed the
plaintiff that the claim is time barred.
17. Section 18 of the Limitation Act, reads as under:
―18. Effect of acknowledgment in writing.-- (1) Where, before the
expiration of the prescribed period for a suit or application in
respect of any property or right, an acknowledgment of liability in
respect of such property or right has been made in writing signed
by the party against whom such property or right is claimed, or by
any person through whom he derives his title or liability, a fresh
period of limitation shall be computed from the time when the
acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated,
oral evidence may be given of the time when it was signed; but
subject to the provisions of the Indian Evidence Act, 1872 (1 of
1872), oral evidence of its contents shall not be received.
Explanation. - For the purposes of this section, -
(a) an acknowledgment may be sufficient though it omits to specify
the exact nature of the property or right, or avers that the time for
payment, delivery, performance or enjoyment has not yet come or
is accompanied by a refusal to pay, deliver, perform or permit to
enjoy, or is coupled with a claim to set-off, or is addressed to a
person other than a person entitled to the property or right;
(b) the word ―signed‖ means signed either personally or by an agent
duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be
deemed to be an application in respect of any property or right.‖
18. As per Section 18 of the Limitation Act, the acknowledgment, if any, is to
be made before the expiration of the period of limitation, the letters
sought to be relied upon by counsel for the plaintiff nowhere acknowledge
the amounts payable by the defendants to the plaintiff. Moreover as per
the own showing of the plaintiff, all the letters sought to be relied upon
have been issued beyond the period of three years from 28.2.2002.
19. Reading of the plaint leaves no room for doubt that the suit is hopelessly
barred by the period of limitation. Accordingly, the present applications
are allowed. Consequently, the suit [CS(OS) 2659/2011] suit is
dismissed, as being barred by limitation.
G.S.SISTANI, J
SEPTEMBER 11, 2014
ssn /2 /pdf
