Madras High Court
M/S.Sakthi Engineering ... vs Bharat Sanchar Nigam Limited on 3 April, 2023
S.A.No.1174 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.04.2023
CORAM
THE HONOURABLE MR. JUSTICE V. LAKSHMINARAYANAN
S.A.No.1174 of 2008
M/s.Sakthi Engineering Constructions
a registered Partnership Firm rep. by
Mr.N.Kirubasankar
having its office at
No.16, Jai Nagar, Palayapalayam Road
Erode - 638 011. ...Appellant/1st Respondent
/Plaintiff
Vs.
1.Bharat Sanchar Nigam Limited
represented by its Chief General Manager,
Telecom (Tamil Nadu Circle) B.S.N.L.,
Anna Salai, Chennai - 600 002. ...1st Defendant/1st Appellant
2.The General Manager
Telecom, B.S.N.L.,
Gandhiji Road,
Erode - 638 001. ...2nd Defendant/2nd Appellant
1/11
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S.A.No.1174 of 2008
3.Telecommunications India Ltd.,
rep. by its Senior General Manager,
24, Chakrapani Street, 1st Floor,
West Mambalam,
Chennai - 600 033. ...3rd Defendant/3rd Respondent
/Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 22.04.2008 in
A.S.No.42 of 2007 on the file of the learned Additional District Judge
(Fast Track Court No.1) Erode, reversing the Judgment and Decree
dated 14.11.2006 in O.S.No.402 of 2004 on the file of the learned I
Additional District Munsif, Erode.
For Appellant : Mr.B.Singaravelu
For Respondents : Mr.M.S.Velusamy
JUDGMENT
The plaintiff is the appellant. The plaintiff is the partnership firm
doing contractual works, such as, laying optic fiber cables, microwave
tower installations, transmission, equipments installations, etc., The
parties are referred to in the same ranking as before the Trial Court.
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S.A.No.1174 of 2008
2.The first defendant decided to install and maintain
Telecommunication Networks in Tamil Nadu Circle. The 2nd defendant
is his subordinate with respect to Erode Telecom District. The 3rd
defendant is the Government of India Enterprise which had been
floated for the purpose of undertaking Telecommunication
Development and Maintenance works at pre-approved rates on turn key
basis, etc., The rates are approved by the first defendant and the works
to be executed were awarded by the 2nd defendant. The plaintiff
claimed that it is a registered contractor with the Government of India
and several other private agencies for laying Optic Fiber Cables. It is
the case of the plaintiff that the offer was made by the plaintiff and it
was accepted by the 3rd respondent for laying HDPE pipe lines and
pulling the cables to Padiyur Telephone Exchange. The second work
was trench laying activity for the HDPE pipe lines and pulling up the
cables from Kangeyam Telecom Exchange. The extent of work was
about 7050 meters running along with Kangeyam – Dharapuram Road.
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S.A.No.1174 of 2008
3.According to the plaintiff, it had carried out the works, i.e., the
trenching and laying of pipes on Padiyur Telecom Exchange as well as
from Kangeyam Telecom Exchange. The said work was inspected by
both the 3rd defendant as well as the defendants 1 and 2 and found to
be correct. The rates on which the work was being executed was
approved by the first defendant and the beneficiary of the work was the
2nd defendant. As already pointed out, the 3rd defendant is only a
consultant for the purpose of identifying the contractor. On completion
of the work, the defendants produced the bills under the following
categories:
1.Kankeyam - Padiyur OFC work
under project No:ED/W.O/F-1 AND
F-2/97. The balance is :Rs. 65,753.00
Interest at the rate of 18% for Rs.65,753.00
From 30.08.2002 to 15.09.2004 :Rs. 24,164.15
------------------
Total :Rs. 89,917.15
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S.A.No.1174 of 2008
2.Velliravelli work under Project No:ED/F-4/97
The balance is :Rs. 77,020.00
Interest from 30.10.1999 to 15.09.2004 :Rs. 67,585.05
-------------------
Total :Rs.1,44,605.05
-------------------
Total Amount payable by the defendants
(89,917.15 + 1,44,605) :Rs.2,34,522.20
The claim of the plaintiff was that he is entitled to a sum of
Rs.2,34,522/-. This consists of two components namely Rs.65,753/-
@18% from 30.08.2002 to 16.09.2004 and Rs.77,020/- from
30.10.1999 till 16.09.2004.
4.This suit was resisted by the defendants 1 and 2 and the 3rd
defendant separately. The stand that was taken by the defendants 1 and
2 in Para 11 was that there was no direct connection between the
plaintiff and the defendants and that the work was executed only at the
instance of the 3rd defendant and as the 3rd defendant is the person
who issued the contract he is liable to pay the same.
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S.A.No.1174 of 2008
5.The 3rd defendant had taken a stand that that he had offered the
tenders on behalf of the defendants 1 and 2 and as the area of work was
limited instead of calling tenders it adopted the procedure of finalising
the sealed quotations. The main plea of the plaintiff that the cables
were laid and work had been completed, had been accepted. It was the
case of the 3rd defendant that the work was completed on 12.11.1998
instead of 31.07.1998.
6.Insofar as the second project is concerned, according to them,
the work was awarded on 24.07.1998 and the work was to be
completed on 23.10.1998, but the work was completed on 28.11.1999.
The plea was not that the work was not done but it was done with some
delay.
7.The trial Court found that the case of the plaintiff is proved and
genuine and decreed the suit as prayed for with costs.
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S.A.No.1174 of 2008
8.On appeal, the learned First Appellate Judge held that there is
no privity of contract between the defendants 1 and 2 and the plaintiff
and allowed the appeal. As against the reversal finding, this Second
Appeal has been filed.
9.The Second Appeal has been admitted and the following
Substantial Questions of law were framed:
"a) Is the Lower Appellate Courts below correct
and justified in reversing the well-considered Judgement
of the trial Court?
b)Is the Lower Appellate Court correct and
justified in holding that there was no agreement between
plaintiff and defendants 1 and 2 and that consequently
they are not liable for the suit claim?
c) Are not the defendants 1 and 2 estopped from
denying their liability to the suit claim?"
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S.A.No.1174 of 2008
10.I am saved the trouble of going into the details as against the
other contract granted for the same period because the plaintiff had
presented O.S.No.189 of 2005 which was decreed on 06.09.2007.
Against the said Judgment and Decree, the respondents herein had filed
A.S.No.1116 of 2007. The learned Single Judge of this Court went
through the evidence and found as in this case that the day to day
progress of the work had been followed by the respondents herein and
returned the finding that the bills that was submitted by the
plaintiff/appellant to the respondents/defendants 1 and 2 were being
returned on one reason or the other. The Court held that there is a
privity of contract between the appellants and the respondents and
decreed the suit. The said finding had been confirmed by this Court as
pointed out above. Therefore, the ground on privity of contract does
not exist any more. Hence, I am constrained to reverse the finding.
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S.A.No.1174 of 2008
11.Mr.M.S.Velusamy, learned counsel for the respondent fairly
submitted that as against the order of this Court in A.S.No.1116 of
2007, a Special Leave Petition was preferred to the Supreme Court and
such Special Leave Petition was also dismissed. This Court having
already concluded for the contract between the appellant and the
respondents in A.S.No.1116 of 2007, I am afraid I cannot go into the
said issue all over again. The contractors are the same and the parties
are the same and only the work to be executed at a different place. The
manner of execution of the work is similar and the contract was also
similar in nature. The defence taken in both the suits are also identical
and one having reached the finality, I cannot take a different view in
this appeal. Therefore, this Court holds that there is a privity of
contract between the appellant/plaintiff and the defendants 1 and 2.
12.This Second Appeal is allowed. The suit in O.S.No.402 of
2004 on the file of the learned I Additional District Munsif, Erode, is
decreed. I am not inclined to grant 18% interest from the date of Plaint
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S.A.No.1174 of 2008
till the date of decree granted by the trial Court. This Court modifies
the interest @18% from the date of demand till the date of presentation
and 12% thereafter. There will be no costs in this appeal.
03.04.2023
Index : Yes/No
Internet : Yes/No
Speaking order : Yes/No
mps
To
1.The Additional District Judge,
(Fast Track Court No.1),
Erode.
2.The I Additional District Munsif,
Erode.
https://www.mhc.tn.gov.in/judis
S.A.No.1174 of 2008
V. LAKSHMINARAYANAN, J.
mps
S.A.No.1174 of 2008
03.04.2023
https://www.mhc.tn.gov.in/judis
