2022/DHC/005406
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 2nd December, 2022
+ RFA(COMM) 7/2021
KALYAN SINGH BACHHIL ..... APPELLANT
Through: Ms. Shweta Bari, Advocate along
with appellant in person.
Versus
M/S UTILITY POWERTECH LIMITED ..... RESPONDENT
Through: Mr. Tarkeshwar Nath, Mr. Lalit
Mohan, Mr. Virat Saharan &
Mr. Harshit Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR
KAURAV
VIBHU BAKHRU, J.
1. The appellant has filed the present petition under Section 13 of the Commercial Courts Act, 2015 read with Section 96 along with Order XLI Rule 1 of the Code of Civil Procedure, 1908 impugning a judgement dated 20.06.2020 (hereafter 'the impugned judgement') passed by the learned Commercial Court in CS (COMM.) No.04/2019 captioned Kalyan Singh Bachhil v. M/s Utility Powertech Limited,
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wherein the learned Commercial Court dismissed the suit filed by the appellant.
2. The appellant/plaintiff had filed the aforementioned suit for recovery of an amount of ₹81,11,473/- with interest at the rate of 18% per annum from the date of filing of the suit till realisation. The respondent/defendant had also filed the counter-claim for a sum of ₹18,92,504/- along with interest at the rate of 18% per annum till the date of realisation. The claim/counterclaim, made by the parties were in connection with various work orders, placed on the appellant/plaintiff in the years 2004 and 2005. These work orders were for the erection of complete equipment for the implementation of High Voltage Distribution Systems (HVDS) and testing and commissioning of the said system in various localities within the distribution area of BSES Yamuna Power Limited (BYPL) in Delhi.
3. The learned Commercial Court did not accept the appellant's/plaintiff's claim and rejected the suit as being barred by limitation as well as on merits. The counter claim made by the respondent/defendant for recovery of of ₹18,92,504/- was also rejected on the ground of limitation.
4. The appellant is the proprietor of Bachhil and Sons, a concern involved in the business of erecting, testing and commencement of HVDS and LTMP systems services. The respondent is a joint venture of Reliance Infrastructure Limited (REL) and National Thermal Power Corporation Limited (NTPC).
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5. The appellant claims that it had been raising Running Account Bills and the respondent made on account payments to the appellant. However, the aggregate payments made were less than the aggregate invoiced amount to the extent of ₹81,11,473. The appellant's/ plaintiff's claim relates to the recovery of the amounts that were invoiced in respect of work done in various locations. The details of the various bills, as set out in the plaint, indicates that most of the bills pertained to the year 2005 and 2006, however, there appears to be one bill dated 15.03.2007/15.02.2008.
6. The appellant/plaintiff claims that the total bills raised amounted to ₹1,42,38,326/-. Out of the aforesaid amount, the respondent paid an amount of ₹61,26,853/- and the balance amount of ₹81,11,473/- remained outstanding and payable. The appellant/plaintiff claims that it had sent several letters demanding that the outstanding payment be made. The appellant/plaintiff had also escalated his grievance to the Government of India, Ministry of Power and claims that the Government of India had also directed the respondent, by its letters dated 26.08.2009 and 22.04.2010, to address the appellant's/plaintiff's grievance; however, the respondent/defendant had failed to do so.
7. Paragraph 6 of the plaint is relevant and set out below:-
"6. That in this regard plaintiff has been contacting the defendant as well as its other constituents and concerned authorities orally as well as in writing such as through letters dated 18.05.2007, 15.02.2008, 25.02.2008, 13.03.2008, 14.03.2008, 27.03.2008, 25.04.2008, 08.09.200, 22.10.2008,
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21.11.2008, 20.12.2008, 1.06.2009, 27.07.2009, 20.10.2009 and 02.12.2009 for making the payments. Even the Government of India, Ministry of Power, vide its letters dated 26.8.2009 and 22.4.2010 has directed to redress the grievance of the plaintiff. But the defendant has been careless, negligent and oblivious in clearing the outstanding dues of the plaintiff. The defendant sent false and frivolous replies dated 20.3.2008, 26.8.2009, 23.2.2010, 22.4.2010 and 12.05.2010 to the plaintiff. The defendant also has been giving assurances to the plaintiff for the settlement of his accounts but the same now has been found to be false and misleading."
8. The appellant claims that it had sent the respondent a legal notice on 05.02.2010. The appellant claims that the respondent replied to the said legal notice by a letter dated 23.02.2010, directing the appellant to get the approvals of the concerned electrical inspector. The respondent also claimed that it had overpaid an amount of ₹18,92,504/-. The appellant responded by a letter dated 21.04.2010, denying the assertion that any extra amount had been paid by the respondent.
9. The respondent sent a separate demand notice dated 15.10.2011 to the appellant for the recovery of ₹18,92,504/. The notice stated that a sum of ₹37,01,705/- was recoverable by the respondent from the appellant as a part of recovery of balance material along with an amount of ₹58,184/- as a part of payment towards "watch and ward". The appellant replied to the same by a letter dated 10.12.2011, denying the
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same as well as the respondent's claim of interest at the rate of 18% p.a. on the outstanding amount.
10. The learned counsel for the appellant submitted that the claims made by the appellant were within time and the learned Commercial Court had erred in rejecting the same as being barred by limitation. She submitted that REL had not certified the payments, which were due to the plaintiff and unless the same were certified, no payment could be released by the respondent/defendant to the appellant/plaintiff. She stated that the respondent/defendant had concealed the date on which REL had certified the bills. If the said date was disclosed, it would be found that the appellant/plaintiff had filed the suit within the period of three years from such certification. She also referred to the decision of the learned Single Judge of this Court in M/s Utility Powertech Limited v. M/s Amit Traders: RFA 515/2015 decided on 15.05.2018.
11. Mr. Tarkeshwar Nath, learned counsel appearing for the respondent, countered the aforesaid submission. He handed over a copy of the judgment in respect of the counter-claim and relied on the findings of the learned Commercial Court recorded in the said order. The learned Commercial Court had noted that the contract (work orders) was closed on 31.07.2006 and thereafter, the respondent/defendant had engaged another contractor for executing the balance works. The learned Commercial Court held that once the contract had come to an end on 31.07.2006, the cause, if any, for the respondent /defendant to make any claim against the defective work would have arisen. The last payment was made to the appellant/plaintiff on 07.02.2007 and therefore, the respondent/defendant would have
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known, at least by the said date, the quantum of money to be recovered from the plaintiff in respect of any defects which were rectified by a new contractor.
12. In view of the aforesaid findings, the learned Commercial Court also rejected the respondent's counter-claim for recovery of alleged overpayment and material liability as well.
Reasons and conclusions
13. There is some controversy as to whether the contract had been closed. Whilst the respondent/defendant claims that the contract was closed on 31.07.2006 and relies on the findings of the learned Commercial Court in this regard, the appellant/plaintiff claims that the contract was not properly closed. In this plaint, the appellant/plaintiff relied on the letters dated 23.02.2010, sent by the respondent alleging the contract could not be closed for non-compliance of certain actions on the part of respondent. However, it is common ground that the works, in respect of which the parties have made their respective claim and counter-claim, were executed in the years 2004 to 2006. As noticed above, all bills, except a bill dated 15.03.2007/15.2.2008 for a sum of ₹48,56,736/-, were raised in the year 2005 and 2006. According to the appellant/plaintiff, a sum of ₹81,11,473/- was due and payable on the bills being raised.
14. The appellant/respondent had also relied on several letters sent between 18.05.2007 to 02.12.2009 demanding payments which were due and payable by the respondent. There is no dispute that the
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respondent/defendant had not made the payments as claimed. In response to the legal notice dated 05.02.2010, the defendant had, by its letter dated 23.02.2010, denied any liability. On the contrary, it had demanded a sum of ₹18,92,504/-, which, according to the respondent/defendant, was paid extra.
15. The suit was filed on 01.03.2012, which is more than three years from the date on which the last bill had been sent. It was also beyond the period of three years from the date on which the last payment was made by the respondent to the plaintiff.
16. The appellant now contends that that the cause of action for recovering the amount due against the bill would arise on the date on which the bills were certified by REL and that date has not been disclosed.
17. It is not open for the appellant to claim that the period of limitation for filing the suit would arise on the date of certification of the bill by REL and since the said date has not been disclosed, the suit must be accepted as having been filed within the period of limitation. The said contention is inconsistent with the averments made in the plaint. As noticed above, in paragraph no. 6 of the plaint, the appellant/plaintiff had claimed that the amount as claimed was payable and it had written several letters between 18.05.2007 and 02.12.2009 demanding the payments due. The appellant/plaintiff alleged that the respondent/defendant had been careless and negligent in clearing the outstanding dues. If the averments made in paragraph no.6 of the plaint
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are accepted - which the Court must do for the purpose of examining whether the suit has been filed within the period of limitation - it is clear that the cause of action for filing the suit had arisen much prior to three years from the date of filing the suit.
18. It is well settled that the period of limitation cannot be extended by unilateral letters and reminders. The Supreme Court, in the case of Geo Miller & Co. Pvt. Ltd. v. Chairman, Rajasthan Vidyut Utpadan Nigam Ltd.: (2020) 14 SCC 643, has observed as under: -
"21. .....Mere correspondence of the appellant by way of writing letters/reminders to the respondent subsequent to this date would not extend the time of limitation....."
19. The learned Commercial Court had also referred to the decision of this Court in M/s Decor India (P) Ltd. v. Delhi Stock Exchange Association Ltd.: 2012 SCC OnLine Del 3248. In that case, this Court had referred to the decision of the Supreme Court in Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority: (1988) 2 SCC 338 and reiterated the well settled proposition that accrual of cause of action cannot be postponed by sending reminders.
20. The decision in the case of M/s Utility Powertech Limited v. M/s Amit Traders (supra) is of no assistance to the appellant. In that case, the respondent had appealed the judgment and decree dated 29.04.2015, whereby the learned Commercial Court had rejected the defendant's contention that the payments could not be made unless REL certified the same. It does not appear that there was any issue raised in that case
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as to whether the claims filed by the plaintiff were within the limitation. A plain reading of the judgment indicates that the plaintiff, in that case, had sent reminders which were followed by a legal notice. Since the respondent/defendant failed to make the payment, the appellant/plaintiff had filed the suit. There was no issue that the suit had been filed beyond the period of three years from the date on which the payments had become due.
21. In the given facts, this Court finds no infirmity with the judgment and decree of the learned Commercial Court to dismiss the suit as barred by limitation.
22. In view of the above, it is not necessary to examine the controversy whether any payment was due and payable to the respondent.
23. The appeal is dismissed.
VIBHU BAKHRU, J
PURUSHAINDRA KUMAR KAURAV, J DECEMBER 2, 2022 Ch
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