Madras High Court
M/S.Simplex Infrastructure Limited vs Tamil Nadu Generation And Distribution on 25 October, 2025
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
2025:MHC:2455
C.S. No.435 of 2000
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on 21.08.2025
Judgment Pronounced on 25.10.2025
CORAM
THE HON'BLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY
C.S. No.435 of 2000
M/s.Simplex Infrastructure Limited,
21, Casa Major Road,
Egmore, Chennai – 600 008.
..Plaintiff
Vs
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO),
N.P.K.R.R. Maligai,
800, Anna Salai, Chennai-600 002.
Represented by its Chairman.
(Amended as per order in A.No.5053 of 2013
on 04.11.2013)
..Defendant
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C.S. No.435 of 2000
Prayer : Plaint is filed under Order VII Rule 1 of the CPC Read With Order IV
Rule 1 of the Original Side Rules, praying to grant a judgment and decree on
the following terms:-
(a) For recovery of a sum of Rs.3,81,72,555.01 (Rupees Three Crores
Eighty One Lakhs Seventy Two Thousand five hundred and fifty five and paise
one only) together with interest at 20% on Rs.2,29,87,159.01 (Rupees Two
Crores Twenty Nine Lakhs Eighty Seven Thousand One Hundred and Fifty
Nine and paise one only) the date of suit till date of realisation;
(b) For a mandatory injunction directing the Defendant to issue the
Completion Certificates for contracts for Civil Works at Tuticorin Thermal
Power Project dated 23.11.1989 and Piling work and civil and structural works
at Basin Bridge Gas Turbine Power Project dated 30.05.1994 and July 1994
respectively;
(c) for a mandatory injunction directing the Defendant to cancel and
return the bank guarantees which are more fully set out in the Schedule
hereunder;
(d) for a permanent injunction restraining the Defendant from invoking
or otherwise acting on or dealing with the said bank guarantees which are more
fully set out in the Schedule hereunder; and
(e) for costs of the suit
For Plaintiff : Mr.Thriyambak J.Kannan,
Ms.Oviya Nila Muralidharan &
Ms.Varsha K.Sukumar
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C.S. No.435 of 2000
For Defendant : Ms. M.Sneha, Special Counsel for TANGEDCO
JUDGMENT
Background
Simplex Concrete Piles (India) Limited, the plaintiff, was awarded three
contracts by the Tamil Nadu Electricity Board, the defendant. Both these
entities underwent a name change later. The former was renamed as Simplex
Infrastructure Limited and the latter as the Tamil Nadu Generation and
Distribution Corporation Limited (TANGEDCO). Amendments to this effect
were allowed by order dated 04.11.2013 in Application No. 5053 of 2013. The
first contract was in respect of civil work for the coal handling system for the
Tuticorin Thermal Power Project. The second contract related to piling work
for the Basin Bridge Gas Turbine Power Project and the third contract related to
civil and structural works for the Basin Bridge Gas Turbine Power Project.
Claims and counter claims arising out of the above mentioned three contracts
form the subject of the suit.
2. The plaintiff has sought recovery of an aggregate sum of
Rs.3,81,72,555.01/- with interest at 20% per annum on Rs. 2,29,87,159.01/-
from the date of the suit till the date of realisation. In addition, mandatory
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injunctions directing the defendant to issue completion certificates in respect of
the above mentioned projects and in relation to bank guarantees issued for and
on behalf of the plaintiff have also been sought. Pursuant to order dated
03.08.2000 in O.A. No.567 of 2000, the bank guarantees provided to
TANGEDCO at the instance of the plaintiff for an aggregate sum of
Rs.72,00,000/- were cancelled subject to the provision of a bank guarantee for
Rs. 24,00,000/-. Consequently, the relief claimed in respect of the bank
guarantees remains valid only to that limited extent. In the written statement
first filed, the defendant made a counter claim for Rs.1,21,98,250/-. By order
dated 01.07.2009 in Application No.655 of 2003, the defendant was permitted
to amend the written statement albeit with effect from the date of order. In the
amended written statement, the defendant made a counter claim for Rs.
1,34,07,627/-.
Pleadings, issues and evidence
3. With regard to the civil work contract for the coal handling system, in
the plaint, the plaintiff states as follows:
3.1. The letter of acceptance dated 03.03.1989 fixed the contract value at
Rs.2,90,99,275/-. A Schedule of Rates (SOR) was appended to the letter of
acceptance and such rates were intended to be firm up to a variation of ± 25%
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of the contract value. A formula was fixed for payment of compensation in case
the contract value fell below or exceeded the stipulated value by more than
25%. The time for completion was 18 months from the date of letter of
acceptance or date of handing over of the site, whichever is later. About 2 ½
years after the contract was awarded, the plaintiff was called upon to undertake
the additional work of construction of reclaiming hopper and conveyor tunnel
on 11.09.1991. The time for completion of this work was 12 months from the
date of handing over on 27.09.1991. The execution of work was delayed for
multiple reasons attributable to TANGEDCO, including failure to supply
power; failure to supply sulphate resistant cement; and not permitting
controlled blasting. Therefore, after several extensions, work was completed on
31.05.1993.
3.2. Hence, the aggregate claim of Rs.16,18,933/- with interest thereon at
20% per annum. The aggregate claim includes a claim of Rs.1,86,570/- towards
variation in the contract value; a claim of Rs.3,46,665/- towards cyclone related
damage; and a claim of Rs.10,85,698/- towards unpaid bills.
4. In the written statement, the defendant asserts inter alia as follows:
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4.1. There was a novation of the contract when the work of construction
of reclaiming hopper and conveyor tunnel was awarded on 11.09.1991. By
consent of parties, at that juncture, the contract value was reduced from
Rs.2,90,99,275/- to Rs.1,61,20,932/-. The final executed value was
Rs.1,72,95,390/-, which exceeded the revised contract value by 7.28%.
Therefore, the contract value was not reduced by more than 25% and the
defendant is not liable to pay any amount on that account.
4.2. The cyclone occurred after the scheduled date of completion.
Therefore, the defendant is not liable to make any payment towards alleged
cyclone related damage.
4.3. The plaintiff completed work for an aggregate value of
Rs.1,72,95,390/-. The defendant paid a sum of Rs.5,82,700/- to the plaintiff and
this sum has not been taken into account by the plaintiff while stating that an
aggregate sum of Rs.65,07,570.95/- was received. If the payment of
Rs.5,82,700/- is taken into account, the aggregate sum paid to the plaintiff
would be Rs.70,90,270.95/-. The defendant is entitled to make recoveries of
Rs.7,71,459.35/- towards the cost of materials such as cement, steel, water
charges, etc. The plaintiff is also entitled to an aggregate sum of Rs.17,28,519/-
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towards hire charges for the generator and interest on the mobilisation advance.
The defendant is also entitled to a sum of Rs.4,12,083/- towards liquidated
damages. After giving credit to the sum of Rs.4,94,601/-, which is due and
payable to the plaintiff, the plaintiff owes the defendant the aggregate sum of
Rs.24,17,460/-.
5. With regard to the contract for piling work at Basin Bridge, in the
plaint, the plaintiff states inter alia as follows:
5.1. The contract value was fixed at Rs.2,29,51,000/- in the letter of
acceptance dated 29.11.1993. The scheduled completion date was 12 months
from the date of handing over of the site. The work was commenced on
25.01.1994 and completed on 02.11.1995. The reasons for delay in execution of
the work were on account of the delay in providing pile drawings by the
defendant; non-availability of work front; increase in number of piles from
1500 to 2023; extensive underground obstructions; and delay by the Central
Electricity Authority (CEA) in granting approval for drawings.
5.2. The contract provides for escalation. In terms thereof, a claim of
Rs.11,18,680/- is made. After giving credit to the sum of Rs.3,44,265/-, which
was paid by the defendant, a sum of Rs.7,74,415/- is payable. The plaintiff
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carried out work for the aggregate value of Rs.2,79,67,003/-. After giving credit
to payments received, a sum of Rs.2,56,743.80/- remains outstanding.
5.3 The plaintiff was called upon to carry out excavation below the water
table, but was only paid at Rs.100/- per cubic meter. As per the SOR, the
plaintiff is entitled to be paid at Rs.130/- per cubic meter. A sum of
Rs.1,47,647/- is payable on this account.
5.4 Since the delay in execution is for reasons attributable to the
defendant, the plaintiff is entitled to reimbursement of the interest deducted on
the mobilisation advance and for reimbursement of the security deposit. The
defendant is liable to reimburse the total sum of Rs.7,96,208/- on this account.
5.5 As a consequence of the plaintiff not providing drawings and not
making the work front available, the men and machinery of the plaintiff
remained idle at site for 94 days. Therefore, the defendant is liable to pay
compensation towards disruption in a sum of Rs.23,50,000/-.
6. In the written statement, the defendant stated inter alia as follows:
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6.1. There was no delay in providing pile drawings to the plaintiff. As
regards increase in the number of piles, the contract envisages that any increase
in individual items of work does not give rise to any additional claims. The
delay in execution is attributable to the plaintiff because the plaintiff did not
mobilise requisite resources to carry out work within the stipulated time limit.
6.2. The defendant inadvertently overpaid the plaintiff towards the
escalation claim although the plaintiff is only entitled to Rs.1,90,553/-.
6.3. As regards the claim towards unpaid bills, the plaintiff executed
work for a total value of Rs.2,78,19,219/- and not Rs.2,79,67,003.80/-. After
giving credit to the sum of Rs.2,77,10,263/-, which was paid to the plaintiff, the
balance payable to the plaintiff is only Rs.1,08,959/- and not Rs.2,56,743.80/-,
as claimed by the plaintiff.
6.4. With regard to excavation below the water table, the SOR prescribes
that a sum of Rs.100/- per cubic meter being paid. On that basis, the amount
payable was paid to the plaintiff and accepted by it.
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6.5. Because the plaintiff received a mobilisation advance, which is a
loan, the plaintiff is liable to pay interest thereon and is not entitled to
reimbursement. The contract prohibits any claim for idling/disruption.
Therefore, the claim for a sum of Rs.23,50,000/- towards idling is not
maintainable.
6.6. The defendant is entitled to liquidated damages of Rs.13,90,968/-. In
addition, the defendant is entitled to a refund of excess escalation and penal
interest. Therefore, an aggregate sum of Rs.19,97,873/- is recoverable by the
defendant. After taking into account the aggregate payable of Rs.14,48,380/-
(security deposit of Rs.13,37,370/- + Rs.1,08,959/-), the net recoverable from
the plaintiff is a sum of Rs.5,49,493/-.
7. With regard to the civil and structural work contract in Basin Bridge,
in the plaint, the plaintiff states inter alia as follows:
7.1. The letter of acceptance was issued on 25.05.1994. The total contract
value was Rs.6,68,68,500/-. The scheduled completion date was nine months
from the date of handing over of the site. The site was handed over on
15.06.1994 and work was partly completed on 30.11.1996 and fully completed
on 30.09.1997. The defendant did not release drawings to the plaintiff in time
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and, in fact, released less than 50% of the required drawings within the
scheduled date of completion. Although the clause on escalation had been
deleted because the contract was to be executed within nine months, on account
of reasons attributable to the defendant, the completion of work took about 39
months. Therefore, the defendant is liable to pay escalation. Since the contract
was executed over 39 months, the actual escalation payable to the plaintiff is
Rs.31,03,446/-. By confining the claim to 2.5% of the contract value for the
period beyond 12 months, the plaintiff is entitled to Rs.28,94,945.48/-.
7.2. The defendant had agreed to pay Rs.140/- per cubic meter for
excavation below the water table, but only paid at the rate of Rs.80/- per cubic
meter. Therefore, the defendant is liable to pay the differential amount of
Rs.4,30,400.70/-.
7.3. As per clause 1.4.0 of Section 2 of the Technical Specifications, the
plaintiff was required to arrange to transport excavated soil that remained after
backfilling to a place within the project area as directed by the
engineer/defendant. On account of non-availability of space within the project
area, the plaintiff was directed to transport the excavated surplus earth to an
area about one kilometre outside the project area. Therefore, the defendant is
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liable to pay for the extra lead at the rate of Rs.100/- per cubic meter for
14,639.105 cubic meters. A sum of Rs.14,63,910/- is payable in this respect.
7.4. The plaintiff was called upon to execute additional work, such as
ceiling plaster, sand filling, bitumen paint, M-15 grade concrete, M.S. Grill,
M.S. Grating etc. The aggregate value of additional work was Rs.44,69,128/-.
After giving credit to the sum of Rs.34,89,794/-, which was paid by the
defendant, a sum of Rs.9,79,333.89/- remains outstanding.
7.5. Since work could not be executed for reasons attributable to the
defendant, the defendant is not entitled to deduct the sum of Rs.19,60,883/-
towards interest on the mobilisation advance and should refund the sum.
7.6. The plant and machinery, supervisory personnel and establishment
of the plaintiff remained idle for a total of 650 days for want of work front and
drawings. The defendant is liable to pay a sum of Rs.75,58,200/- towards
idling/disruption compensation.
7.7. The security deposit of Rs.13,37,370/- has not been refunded in spite
of expiry of the defect liability period on 29.09.1998. Therefore, the plaintiff is
entitled to this sum with interest at 20% per annum.
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8. In the written statement, the defendant asserts inter alia as follows:
8.1. The site was handed over to the plaintiff on 15.06.1994, whereas the
plaintiff completed work on 30.09.1997. Drawings were released periodically
and the plaintiff was called upon to execute work wherever the work front was
readily available. The delay is on account of improper planning and insufficient
mobilisation of men and materials by the plaintiff. The contract does not
contain a provision for escalation and, therefore, the plaintiff is not entitled to
make such claim.
8.2. With regard to excavation below the water table, the contract
provides for payment at Rs.80/- per cubic meter. Payment was made in
accordance with the contract.
8.3. As per clause 1.4.0 relating to disposal of surplus earth, the unit rate
covers disposal and no extra lead was involved. Therefore, the claim of
Rs.14,63,910.50/- is not sustainable.
8.4. Out of the items of additional work listed in the plaint, two items of
work, namely sunshade facia work and brickwork in II sort bricks in
superstructure are covered in the original scope of work. Therefore, only a sum
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of Rs.5,22,206/- is payable to the plaintiff and not the sum of Rs.9,79,333/-, as
claimed by the plaintiff. This amount has been adjusted towards the dues of the
plaintiff.
8.5. As per clause 2.8 of Section A, a claim for idle time charges for any
reason shall not be entertained by the owner. Because the plaintiff accepted this
condition, the plaintiff is not entitled to the idling claim of Rs.75,58,200/-.
8.6. Because the plaintiff delayed the completion of civil and structural
works by 133 weeks, the defendant is entitled to liquidated damages of
Rs.35,43,255/-.
8.7. After taking into account recoveries towards materials issued and
excess payments, a total sum of Rs.45,13,455/- is payable by the plaintiff to the
defendant. After setting off the amounts payable by the defendant to the
plaintiff (Rs.5,41,750/-), a net sum of Rs.39,71,705/- is payable by the plaintiff
to the defendant.
9. In the reply statement, the plaintiff asserts inter alia as follows
regarding the three contracts:
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9.1. As per Article 28 of the GCC, the defendant was required to return
the security deposit within 6 months of the completion of work and also return
the bank guarantees. Work was completed on 31.05.1993.
9.2. The plaintiff agreed to pay hire charges for the diesel generators on
hourly basis by letter dated 09.01.1992, but the defendant is not entitled to
claim enhanced hire charges on the basis of internal documents that do not form
part of the contract and are not binding on the plaintiff.
9.3. The Controller of Explosives permitted controlled blasting. The
refusal of the defendant to permit the same is contrary to the contract and the
plaintiff is entitled to extension of time on that account.
9.4. The net aggregate counter claim of Rs. 24,17,460.35/- for civil work
for the Tuticorin Thermal Power Project, including claim for material supply,
hire charges, interest on mobilisation advance and liquidated damages, is
denied.
9.5. As per the bill of quantities, the plaintiff was required to drive only
1500 piles but had driven 2023 piles in the Basin Bridge piling work contract.
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9.6. The actual quantities of underground obstruction removed by the
plaintiff was 583.58% in excess of the quantities indicated in Annexure 1B of
the Letter of Acceptance – Supplemental Schedule of Items.
9.7. The plaintiff is entitled to a sum of Rs.11,18,680.12/- as escalation
and to the net sum of Rs.7,74,415.12/- as balance escalation charges.
9.8. The aggregate counter claim of Rs.19,97,873/-, including the
individual counter claims towards liquidated damages and interest on security
deposit and retention amount, are denied.
9.9. The price escalation clause was deleted since the contract was to be
executed within nine months. Because the delay in execution of the civil and
structural work at Basin Bridge is attributable to the defendant, the plaintiff is
entitled to escalation as per clause 87.
9.10. The claims towards excavation under the water table and for
transporting surplus earth beyond the project area are reiterated.
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9.11. The plaintiff was directed to execute 12 supplemental items of work
and there was concurrence on rates. The plaintiff denies that the sunshade facia
and brickwork in II sort bricks were part of the original scope of work.
Therefore, the plaintiff reiterates the claim of Rs. 9,79,333.89/- for
supplemental items of work.
9.12. The aggregate counter claim towards the civil and structural work
at Basin Bridge is denied, including the liquidated damages claim of
Rs.35,48,416/- and claims towards supply of materials and recovery of alleged
excess payment.
10. On the basis of the pleadings, the following issues were framed on
19.11.2015:
“(i) Whether the plaintiff is entitled to recover the sum
Rs.3,81,72,555.01/- together with interest @ 20% per annum
on Rs.2,29,87,159.01/- from the date of suit till the date of
realization from the defendant?
(ii) Whether the plaintiff is entitled for a decree for a
mandatory injunction directing the defendant to issue
completion certificates to the plaintiff for the contracts for
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Civil Works at Tuticorin Thermal Power Project dated
23.11.1989, at Basin Bridge Gas Turbine Power Project
dated 30.05.1994 and July 1994 respectively?
(iii) Whether the plaintiff is entitled for a decree for
mandatory injunction directing the defendant to cancel and
return the Bank Guarantees specified in the schedule to the
plaint?
(iv) Whether the plaintiff is entitled for a decree for
permanent injunction, restraining the defendant from
invoking or dealing with the Bank Guarantees specified in
the schedule to the plaint?
(v) Whether the Counter claim of Rs. l,34,07,627/-
claimed by the defendant is barred by limitation?
(vi) Whether the defendant is entitled to the Counter
claim for a sum of Rs.1,34,07,627/- together with interest @
20% per annum from the plaintiff?
(vii) Whether the parties are entitled to costs? To what
extent ?
(viii) To what other reliefs the plaintiff and defendant
are entitled?”
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11. The plaintiff adduced evidence by examining Mr. R. Gopal, Senior
Project Manager, as PW1. In course of the examination-in-chief of PW1, 86
documents were exhibited as Exs. P-1 to P-86. PW1 was cross-examined by
learned counsel for the defendant. The defendant adduced evidence by
examining Mr. R. Ramraj, Superintending Engineer, as DW1. In course of the
examination-in-chief of DW1, 86 documents were exhibited as Exs. D-1 to P-
97. DW1 was cross-examined by learned counsel for the plaintiff. The plaintiff
compiled the pleadings and exhibits in seven volumes (Volumes I-VII), which
are referred to in this judgment, where appropriate.
Counsel and their contentions
12. Oral arguments on behalf of the plaintiff were advanced by
Mr.Thriyambak J.Kannan, learned counsel. Oral arguments on behalf of the
defendant were advanced by Ms. M.Sneha, special counsel for the defendant.
Both parties filed written submissions.
13. After providing an overview of the three contracts, learned counsel
for the plaintiff first made submissions regarding the Tuticorin Thermal Power
Project. He submitted that the site was handed over on 27.09.1991 and that the
scheduled completion date was 18 months from such date, i.e. 26.03.1993.
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Learned counsel submitted that the actual completion date was 31.05.1993. He
contended that the causes for delay were power outage, as evidenced by letter
dated 19.11.1991 (Ex. P-6; page 6 of volume III); delay in supply of cement;
delay in supply of drawings; and rejection of the request for rock excavation by
blasting. He submitted further that the levy of Diesel Generator set (DG set)
charges at rates not approved by the plaintiff is untenable. He also submitted
that the contract value was Rs.2,90,99,275/-, whereas the executed value was
Rs.1,73,03,225/-. Since the executed value was lower than the contract value by
more than 25%, he submitted that the plaintiff is entitled to compensation as
per the formula prescribed in the contract. He pointed out that the plaintiff had
made a claim on such basis for Rs.16,18,933/-. He further submitted that the
defendant's counter claims are barred by limitation and that, without prejudice,
the defendant is not entitled to hire charges for the DG sets, liquidated damages
or interest on the mobilisation advance.
14. As regards the contract for piling work at Basin Bridge, after pointing
out that the contract value was Rs.2,29,51,000/-, learned counsel submitted that
the contract provided for 20,250 metres as the total area for driving piles. The
contract also stipulated the depth at 13.5 metres. If the number of piles were to
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be computed on that basis, he submitted that it would work out to 1500 piles.
Instead, he states that 2023 piles were driven by the plaintiff.
15. Apart from the increase in the number of piles, learned counsel
submitted that there was not only delay in release of drawings for piling work,
but the release was haphazard. In support of this contention, he referred to the
letters issued in July 1995 (Exs.P36 and P37; pages 57 & 58 of Volume III). He
also referred to letter dated 21.09.1994 (Ex.P38) regarding the idling of the rig.
By referring to the cross-examination of DW1, he pointed out that DW1
admitted that the last set of drawings were released in January 1995. He
refuted the contention that the collapse of the rig caused delay by pointing out
that the rig collapsed on 19.01.1995 and was re-commissioned on 22.02.1995,
as evinced by communication dated 22.02.1995 from the plaintiff to the
defendant (Ex.D-40; page 154 of volume IV). By referring to letter dated
16.03.1998 (Ex.P47; page 93 of volume III), learned counsel submitted that
three claims were made towards excavation below the water table, escalation
and additional work relating to demolition and dismantling of obstructions.
16. With regard to the civil work at Basin Bridge, learned counsel
submitted that the site was handed over on 15.06.1994 and that work was
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substantially completed on 30.11.1996 and fully completed on 30.09.1997. As
in the case of the piling work contract, he submitted that the plaintiff is entitled
to payment at Rs.140/- per cubic metre for excavation below the water table.
After pointing out that the plaintiff had to transport surplus earth after
backfilling to an area beyond the project area, he submitted that the plaintiff is
entitled to payment of Rs.14,63,910/- at the rate of Rs.100/- per cubic metre on
this account. By referring to the items of additional work set out in page 43 of
the plaint at paragraph x(e), learned counsel submitted that a sum of
Rs.34,89,794/- was paid leaving a balance due and payable of Rs.9,79,333/-.
Although this contract did not stipulate escalation, learned counsel contended
that escalation was not provided for in view of the contract period being nine
months. Since execution was delayed considerably for reasons attributable to
the defendant, he contended that the plaintiff is entitled to the escalation claim
of Rs.28,94,945/-.
17. Learned counsel for the defendant refuted the above contentions. As
regards the Tuticorin Thermal Power Project, she submitted that the original
scope of work included reclaiming the hopper pit both inside and outside the
compound. By referring to the amended contract at page 26 of volume IV
(Ex.D5), she submitted that the total contract value was reduced to
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Rs.1,61,20,932/- instead of Rs.2,90,99,275/-. She also referred to the cross-
examination of PW1 in this regard and pointed out that PW1 stated that he is
not able to recollect why the value of the work was reduced from
Rs.2,90,99,275/- to Rs.1,61,20,932/-. By also referring to the cross-examination
of DW1 in this regard, she pointed out that DW1 stated that the contract was
amended in September 1991. As regards interest on mobilisation advance, by
referring to Exs.D4 & D5 at pages 25 to 28 of volume IV, learned counsel
submitted that it was agreed that interest would be levied at 18% per annum on
the mobilisation advance. With regard to electricity charges, with reference to
communication dated 15.02.1989 from the plaintiff (page 359 of volume V)
(Ex.P1), learned counsel submitted that the agreement envisaged
water/electricity supply at one point on chargeable basis. She also referred to
reply dated 22.02.1989 in this regard. As regards charges relating to the DG
sets, by referring to Ex.D7 at page 39 of Volume IV, learned counsel submitted
that the plaintiff agreed to pay hire charges. Turning to the cross-examination
of DW1 at page 42 of volume II, learned counsel submitted that DW1 stated
that the first DG set was installed on 28.01.1992 and the second on 23.02.1993
and that there was no delay because the request for the second DG set was
made on 22.02.1993, as evidenced by the communication at page 20 of volume
III (Ex.P12).
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18. As regards cyclone damage, by referring to clause 27 of the contract
(force majeure clause) and Ex.P10 as well as the minutes of meeting held on
30.01.1993 (Ex.P11), learned counsel submitted that the agreed amount was
paid towards de-silting. As regards unpaid bills, after pointing out that all RA
bills up to RA bill 16 were paid, learned counsel submitted that RA bill 17 was
not settled on account of recoveries by the defendant from the plaintiff.
19. With regard to the piling work contract at Basin Bridge, learned
counsel submitted that such piling work was delayed because the defendant did
not provide the dynamic test results for the piles. By referring to clause 5.0 of
the letter of acceptance, learned counsel contended that increase in quantities of
individual items was provided for without any additional compensation in such
regard. She also referred to clause 21.0 of the bid document at page 57 of
volume IV and page 19 of volume VI. By referring to clause 4.0 of the letter of
acceptance, learned counsel pointed out that it provides for recovery of interest
on the mobilisation advance and for recovery of interest on the security deposit.
After pointing out that the measurement book shows the value of work done as
Rs.2,78,19,219/-, learned counsel submitted that the amount payable towards
unpaid bills is only Rs.1,08,959/-. As regards work under the water table,
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learned counsel submitted that it is payable and was paid at Rs.100/- per cubic
meter.
20. As regards the civil and structural works contract at Basin Bridge,
learned counsel submitted that claim for idling is prohibited in clause 2.8 of
Section A. As regards excavation below the water table, she pointed out that it
was paid at Rs.80/- per cubic meter as per SOR 3(ii). With regard to the
supplementary item claim, learned counsel submitted that only the ratio of
ceiling plaster was changed from that specified in SOR item 15(i). With regard
to the filling of sand instead of excavating earth, she submitted that it was paid
at Rs.215/- per cubic meter in terms of SOR item 3. Similar submissions were
made with regard to the deck guard, bitumen paint, M.S. Grill, M.S. Grating,
brick and railway gauge. As regards the extra lead claim, learned counsel
submitted that the disposal of surplus earth was within the project area. With
regard to escalation, by referring to clause 7.2 to 7.4 of the Technical
Specifications and clause 83 of the General Conditions of Contract (GCC),
learned counsel contended that escalation is not permissible unless the formula
is prescribed in the bid document with a ceiling.
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21. Dealing with the counter claims, learned counsel submitted that all
drawings were submitted by 09.10.1995 in relation to the piling work contract,
whereas the work was completed only on 02.11.1995. As regards the civil and
structural works contract, she submitted that work was completed in September
1997 and even if calculated from 02.11.1995, the contractor should have
completed all work by September 1996.
22. By way of rejoinder, learned counsel for the plaintiff submitted that
Ex.P4 is an amendment to the Tuticorin Thermal Power contract and not a
novation. Reliance was placed by him on Section 62 of the Contract Act, 1872
in support of this contention. Learned counsel contended that the original
contract empowered reduction in contract value subject to clause 4 thereof.
Therefore, he contended that clause 4, which provides for compensation if the
contract value is reduced or increased by more than 25% of the specified value,
would apply to the reduction to Rs.1.61 crores. With regard to unpaid bills,
learned counsel submitted that only the receipt of an additional sum of Rs.2
lakhs is admitted, whereas the assertion that Rs.3.63 lakhs + Rs.50,000/- was
paid is disputed. As regards the DG sets hiring charges, he contended that the
rates were not provided earlier and that such rates cannot be foisted on the
plaintiff. As regards the piling work contract, by referring to minutes of
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meeting held on 21.09.1994, learned counsel pointed out that it is recorded
therein that drawings are pending with the CEA for approval. He also referred
to letter dated 28.06.1999 (Ex.P80) with regard to increase in number of piles
and in the number of obstructions. As regards the civil work contract, learned
counsel pointed out that surplus earth was disposed of outside the project site
and that Ex.D58 indicates that the distance is the same and not that it is within
the project area. He concluded his submissions by referring to Ex.P81 with
regard to drawings issued after the contract completion period.
Discussion, analysis and conclusions
Issues (i), (v) and (vi)
23. Out of the eight issues framed by this Court, issue (i) relates to the
monetary claim made by the plaintiff, issue (v) relates to whether the
defendant's counter claims are barred by limitation and issue (vi) relates to
whether the defendant is entitled to the counter claims. These monetary claims
have been made in respect of all three contracts jointly. The adjudication,
however, has to be done separately in respect of claims and counter claims
arising out of each contract. I first deal with the contract relating to civil work
for the coal handling system for the Tuticorin Thermal Power Project.
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Contract relating to civil work for coal handling system at the Tuticorin
Thermal Power Plant
24. The contract value was specified as Rs.2,90,99,275/- in the letter of
acceptance (part of Ex. P-1). The scope of work is indicated in clause 3.1 of the
letter of acceptance as under:
3.1 The scope of work coming under this contract i.e.
part I of specification SECT II-3 generally comprises of the
following main works and structures:
a) Manual unloading Track Hopper/Pit.
b) Transfer House and Conveyor Tunnels.
c) Reclaim Hopper/Pit and Conveyor Tunnel.
d) Any other allied work.”
After recording in clause 2.1 of such letter of acceptance that the rates are firm
until completion of the entire work, quantity variation was provided for in
clause 4. Clause 4 is set out below:
“4) COMMERCIAL:
Quantity Variation: Your request for price increase
for quantity variation beyond ± 25% to ± 50% of the
accepted contract value is accepted as below.
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a) Your accepted rates are firm for any change in total
contract value upto ± 25%. For percentage decrease in
contract value below – 25% and upto – 50%, your rates will
be increased by 7 ½ % for the actual percentage decrease in
contract value below 25%. For % age increase in contract
value +25% upto +50%, your rates shall be increased by 5%
for the actual percentage increased in contract value above
25%. This increase in rates will not be paid for the value of
materials issued by the Board in the increased and decreased
value. The contract value for the purpose of ascertaining the
percentage increase or decrease will be exclusive of
escalation charges if any payable. Please also note that the
above stipulation is subject to the condition that quantity of
individual item of work may vary to any extent and no extra
payment is admissible on this amount. ”
25. Learned counsel for the plaintiff contended that the value of the
contract was reduced to Rs.1,61,20,932/- by letter dated 11.09.1991 (Ex. P-4).
Since the reduced contract value is lower than the original contract value by
more than 25%, it was contended that the plaintiff is entitled to an increase in
rates by 7 ½ % for the actual percentage decrease below 25%. This contention
was countered by learned counsel for the defendant by relying on clause 3
(particularly 3.2 thereof) of Ex. P-4, which is as under:
“ 3.0. Rates and Prices
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The revised price schedule and quantities indicated in
the enclosure to this letter is applicable only for the works to
be taken up for Reclaiming Hopper and Conveyor Tunnel
outside the compound wall. These rates are firm without
escalation till the completion of the entire works. It shall be
noted that neither increase in price nor escalation will be
permissible.
3.2. The value of the contract to be executed for the
portion of work as indicated above is Rs.83,48,568/- (Rupees
eighty three lakhs forty eight thousand five hundred and sixty
eight only) and the total contract value including the existing
work under execution will be Rs.1,61,20,932/- (Rupees one
hundred and sixty one lakhs twenty thousand nine hundred
and thirty two only).”
26. Clause 3 indicates that the value for execution of work relating to
reclaiming hopper and conveyor tunnel outside the compound wall is
Rs.83,48,568/-. After taking into account existing work under execution at that
point of time, the total contract value was fixed at Rs.1,61,20,932/-. Ex. P-4
draws reference to three communications from the plaintiff dated 27.06.1991,
01.07.1991 and 15.07.1991 requesting for an increase in the earlier agreed rates
by 40% for execution of reclaiming hopper and conveyor tunnel outside the
compound wall. Learned counsel for the plaintiff contended that Ex. P-4
pertained to additional work and that it did not result in a novation of the
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original contract. The cross-examination of DW1 is relevant in this regard and
the key questions and answers from the cross-examination on 02.08.2018 and
12.12.2018 are set out below:
“Q: Has the defendant referred to deletion of work awarded
under Ex.P1 in Ex.P4?
A: This amendment to the contract scope speaks about
reclaiming hopper and conveyor tunnel dropping two other
scopes contemplated originally namely (a) manual unloading
hopper/pit and (b) transfer house and conveyor tunnels.
Q: Is it correct that the conveyor system under Ex. P1 was
termed as conveyor no.60?
A: Yes
Q: What is the number of the conveyor system outside the
compound wall?
A: Conveyor number 61 and 62.
Q: In the same statement in Ex.P15, see last page the value of
the work is shown as Rs.95,22,807.92 and a further sum of
Rs.77,80,417.70 is shown as the value of work in respect of
Conveyor No.60, Is it correct that amount of Rs.
95,22,807.92 relates to the work executed under Ex.P4 and
the sum of Rs.77,80,417.70 relates to the work executed
under Ex.P1?
A: I have to go back to the records and verify it.
Q: Please see the last question posed to you on 2/8/2018
wherein you were to confirm the value of the work done by
the plaintiff as being Rs.95,22,807.22 under Ex.P4 and
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Rs.77,80,417.70 under Ex.P1, you were to verify these
records and inform the Hon'ble Court, have you verified the
records?
A: Yes, The records have been verified, cumulative value of
work done is Rs.1,72,95,390/- and the outstanding bill to be
released to the defendant was given in page 21 of the proof
affidavit.
27. When Exs.P-1 and P-4 are analysed along with the oral evidence of
DW1, the conclusions that follow are as follows. Work outside the compound
wall was not within the scope of Ex.P-1. When the plaintiff was requested to
undertake this work, the plaintiff requested for an increase of 40% over rates
agreed to in Ex.P-1. This request was acceded to and the total contract value
was reduced to Rs.1,61,20,932/-. Although Ex.P-4 does not expressly state that
(a) manual unloading hopper/pit and (b) transfer house and conveyor tunnels
were deleted from the revised scope of work, by taking note of the drastic
reduction in estimated contract value from Rs.2,90,99,275/- to Rs.1,61,20,932/-
, in spite of the addition of work outside the compound, the oral evidence of
DW1 on deletion is liable to be accepted. Thus, the plaintiff appears to have
accepted a package deal involving an increase in rates for the additional work
subject to accepting a reduction in the total contract value. Indeed, on careful
examination of Ex.P-4, it is evident that each clause of the original letter of
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acceptance is referred to therein and, in case of amendment, the amendment is
specified. Otherwise, it is stated that there is no change and that it is as per the
original acceptance letter. When seen in this light, the conclusion that follows
is that the price clause of the original letter of acceptance was modified and
substituted by the amended clause (i.e. clause 3 of Ex. P-4).
28. Learned counsel for the plaintiff contended, however, that the
quantity variation clause was not modified by Ex. P-4. On that basis, he
contended that the plaintiff would be entitled to increase in rates in terms of the
quantity variation clause. This contention cannot be countenanced because the
rates and prices clause in Ex. P-4 has effectively substituted the corresponding
clause in the original letter of acceptance. Therefore, notwithstanding the
retention of the quantity variation clause, only if the executed value was 25%
lower than the revised contract value of Rs.1,61,20,932/- would the plaintiff be
entitled to claim a higher rate as per the quantity variation clause.
Consequently, the claim of Rs.1,86,570/- is rejected.
29. The plaintiff also made a claim for cyclone related damage. This
claim was refuted by learned counsel for the defendant by referring to clause 27
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of the General Conditions of Contract (part of Ex. P-1) pertaining to force
majeure. The force majeure clause reads as under:
“27.0 Force Majeure
If at any time during the continuance of this contract,
the performance in whole or in part in any delegation under
this contract shall be prevented or delayed by reasons of any
war, hostilities, acts of public enemy, acts of civil commotion,
strikes, lock outs, sabotages, fires, floods, explosions,
epidemics, warranting restrictions or other acts of God
(hereinafter referred to as eventualities), then provided
notice of the happening of any such eventuality is given by
the TENDERER to the Board within 15 days from the date of
occurrence thereof, neither party shall, by reasons of such
eventuality, be entitled to terminate this contract nor shall
have any claims for damages against the other in respect of
such non-performance or delay in performance and
deliveries under this contract shall be refunded as soon as
practicable after such eventuality has come to an end or
ceased to exist.
Provided that if the performance in whole or part by the
TENDERER or any obligation under this contract is
prevented or delayed by reasons of any eventuality for a
period exceeding 60 days, the Board may at its option,
terminate this contract by notice in writing,”
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As is noticeable from the above clause, flood falls within the scope thereof. As
is typical with force majeure clauses, however, clause 27 provides for excusing
non-performance during the force majeure period and not claiming damages
inter alia for flood/cyclone related clauses. Therefore, the claim for cyclone-
related damage cannot be countenanced.
30. Additionally, in minutes of meeting held on 30.01.1993 (Ex. P-11),
this aspect was discussed and it was agreed between the parties that the
plaintiff's claim for removal of silt and slush would be accepted at rates
specified in particular items of the SOR. The agreed position is that payment
towards removal of silt was made. It was specifically recorded as follows
regarding all other claims for cyclone-related damage:
“ 4. Regarding all other claims, M/s Simplex have been
informed that they are not feasible for compliance and hence
not admissible and this was agreed to be absorbed by M/s
Simplex.”
Ex. P-11 contains the signature of Mr.Shankar Guha, General Manager, on
behalf of the plaintiff. In these circumstances, except to the extent agreed, the
claim towards cyclone damage cannot be sustained.
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31. The plaintiff made a claim of Rs.10,85,698/- towards unpaid bills. In
the written statement, the defendant asserted that a sum of Rs.5,82,700/- was
paid in addition to amounts admitted to be received by the plaintiff. According
to the defendant, the total amount paid to the plaintiff for this contract was
Rs.70,90,270.95/- and not Rs.65,07,570.95/-. Details of such additional
payment were provided by the defendant in course of final arguments by way of
a statement of account. When a comparison is made between receipts admitted
by the plaintiff and payments said to be made by the defendant, it appears that
payment by cheque dated 11.06.1992, cheque no.986652, of a sum of Rs.2
lakhs was not taken into account by the plaintiff. On verification, learned
counsel for the plaintiff admitted receipt of this sum by the plaintiff. As regards
this amount, the defendant has therefore established having made the payment.
Hence, there is evidence of payment of Rs. 67,07,570.95/- towards R.A. Bills I-
XVI leaving a balance of Rs.3,82,700/-.
32. In the statement of account submitted in course of final hearing, the
defendant indicated that the aggregate payment of Rs.70,90,270.95/- included
the following adjustments: Rs.3,63,950/- towards recoveries on account of
mobilisation advance and current consumption charges; Rs. 50,000/- from LS
VI; and Rs. 1,68,750/- towards mobilisation advance. This is not in line with
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the pleading in the written statement, wherein a statement of payables and
recoveries is set out at paragraph 15(a) thereof. Being contrary to pleadings as
regards the above adjustments, the statement of account is rejected to that
extent. Whether and, if so, the extent to which the entitlement to effect
recoveries is established will be considered while dealing with the counter
claims.
33. In addition to the revised claim of Rs.3,82,700/- towards R.A. bills I-
XVI, the final bill value remains unpaid. The amount claimed by the plaintiff
towards this bill is Rs.4,56,510/- and the amount admitted as payable by the
defendant is Rs.4,48,675/-. I will proceed on the basis that the defendant's
calculation is correct in view of the minor variation of Rs.7835/-. The
defendant has also admitted that the withheld amount of Rs.45,926/- is liable to
be released. On that basis, the amount payable to the plaintiff would be Rs.
8,77,301/- (Rs.3,82,700/- + Rs. 4,48,675/- + Rs. 45926/-) for this contract. This
amount would, however, have to be adjusted against the counter claim to the
extent allowed and I turn to this aspect next.
Counter claims of the defendant
Limitation: common to all three contracts
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34. The first aspect to be examined in this regard is whether the counter
claims are barred by limitation. The counter claims in respect of all three
contracts were made on or about August 2000 in the first filed written statement
and amended with effect from 01.07.2009 in the amended written statement. As
noticed earlier, the aggregate counter claim made in the first filed written
statement was Rs. 1,21,98,250/- and this was increased to Rs.1,34,07,627/- in
the amended written statement. The difference is only in respect of the contract
for civil and structural work at Basin Bridge. The amount payable to the
plaintiff for work done has been increased from Rs.5,22,206/- to Rs.5,77,443/-.
The counter claims for recoveries towards materials issued has been raised
from Rs.1,59,975/- to Rs.9,22,215/- and for excess payments has been reduced
from Rs. 1,07,440/- to Rs.47,985/-. As is typical with construction contracts, in
all three contracts, payments were required to be made during execution of
work against running account bills. After completion of work, the contracts
envisaged submission of final bills. In such final bills, credit was to be given
for payments received against running account bills, recoveries, if any, were to
be adjusted and net payments made by the party owing.
35. The GCC contains an identical clause in each contract regarding
payments during execution and the same is set out below:
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“45.0 CERTIFICATE TO BE PROVISIONAL AND
SUBJECT TO CORRECTION
Every certificate for payment on account of work,
materials or things shall be regarded as only provisional and
approximate and all payments made on such certificate shall
be regarded as being open payments and shall respectively
be subject to revision and settlement by the ENGINEER and
in the event of his deciding that from any circumstances the
measurements of works executed, returns of materials
provided and used for the estimates of value previously made
did not truly represent the portion of works executed and
materials received and used having reference to the amount
of the contract sum and the work remaining to be executed by
the CONTRACTOR, the ENGINEER shall have power from
time to time to correct the total results by adding thereto or
deducting therefrom such sum as, after communication with
the CONTRACTOR or his duly authorised agent, the
ENGINEER may deem to be just and such addition or
deduction shall be credited to or (as the case may be) debited
against the CONTRACTOR at such time as the ENGINEER
may think fit.”
All three contracts also provide for the issuance of a completion certificate
(clause 44.0 of the GCC) and the issuance of a final certificate. In this case, on
the ground that completion certificates were not issued in spite of completion of
work, one of the remedies claimed is for the issuance of completion certificates.
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36. These contracts also provide for the issuance of final certificates
upon expiry of the 12 month maintenance period running from the issuance of
the completion certificates. Clause 43.0, which deals with the final certificate,
provides, in relevant part, as under:
“43.0 FINAL CERTIFICATE
The contract shall not be considered as completed until a
certificate (hereinafter referred to as 'the final certificate')
shall have been signed by the ENGINEER to the effect that
the CONTRACTOR has carried out all his obligations under
'Maintenance' and in the manner provided by this
contract....”
As regards the contract for civil work for the Tuticorin Thermal Power Project,
Ex. D-75 (pages 205-206 of volume IV), which is a letter dated 06.01.1999
from the defendant to the plaintiff, reveals that recoveries were indicated while
processing L.S. XVII and part bill. The final bill had not been prepared at that
stage. Likewise, as regards piling work for the Basin Bridge Gas Turbine
Power Project, by letter dated 13.11.1999 (Ex. D-84), the plaintiff was
informed that the final bill is ready for signature. Communication dated
26.04.2000 (Ex. D-88) discloses that the final bill for the civil and structural
work for the Basin Bridge Gas Turbine Power Project is under preparation.
Therefore, the counter claims made in August 2000 are within the period of
limitation. Whether the amended counter claims are within the period of
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limitation is a separate matter, which may be examined, if necessary, after
considering the counter claims on merits.
Counter claims in contract for coal handling system at Tuticorin
37. An aggregate counter claim of Rs.29,12,061.35/- and a net counter
claim of Rs.24,17,460.35/- was made by the defendant with regard to this
contract. The largest element thereof is DG set hire charges of Rs.16,71,981/-.
The contract envisaged provision of power supply at one point on chargeable
basis. This is evident from letter dated 15.02.1989 from the plaintiff setting out
requirements not included in the work order (Ex. P-1 at pages 359 & 361 of
volume V). Ex. D-7 at page 39 of volume IV is a letter dated 09.01.1992 from
the plaintiff to the defendant. After requesting the defendant to provide one
diesel generator of suitable capacity, the plaintiff stated as under:
“We agree to pay the prevailing hire charges of Diesel
Generator per hour meter reading of the generator to be in
use, during power failure.”
Therefore, it is beyond doubt that the plaintiff agreed to pay hire charges.
38. The plaintiff contended that the defendant did not mention the hire
charges and obtain the plaintiff's approval in respect thereof. In response, the
defendant relied upon Board Proceedings No.209 (Ex. D-1). In course of cross-
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examination, a question was put to DW1 at the hearing on 21.12.2018
regarding the supply of DG sets. The said question and answer are set out
below:
“Q: Paragraph 4g, it is said that plaintiff requested for, are
you aware as to when this diesel generator were supply by
the defendant to the plaintiff?
A: Defendant installed two generators on 28/1/1992 and
another one on 23/2/1993.”
At the hearing on 28.02.2020, further questions were put on DG set hire
charges. The said questions are answers are set out below:
“Q: Ex.D75 is shown to the witness. Prior to the issuance of
Ex.D75 letter dated 06.01.1999, was recovery for the hire
charges of the DG set made in terms of Ex.D1?
A: Yes. Even before the issuance of Ex.D75 it was based on
Ex.D1.
Q: Ex.D7 and Ex.D14 are shown to the witness. Ex.D7 letter
dated 09.01.1992 and Ex.D4 dated 19.04.1993. Do either of
these letters make reference to Ex.D1?
A: No, it is not there.
39. The above evidence leads to the conclusion that the plaintiff was
informed that hire charges would be charged for the DG sets and the plaintiff
agreed to pay. Ex. D-1, however, was not made available to the plaintiff at the
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time of entering into the contract and cannot be considered as forming part of
contract documents. Nonetheless, by taking into account the following: the
express consent of the plaintiff to pay DG set hire charges; the absence of any
evidence that the sum of Rs.2,210/- per day towards hire charges is
unreasonable or disproportionate; and the fact that the DG sets were installed
and admittedly remained in the plaintiff's custody on the relevant dates for
which charges were levied, interference is not warranted with the defendant
debiting total DG hire charges of Rs. 16,71,981/-.
40. Apart from the DG hire charges, the defendant counter claimed
Rs.4,14,620/- towards current consumption charges, Rs.3,11,859/- towards
material cost for cement, steel and the like, Rs.11,500/- towards damaged
cables, Rs.51,590/- towards interest on mobilisation advance, Rs.22,435/-
towards retention amount, Rs.10320/- towards income tax, Rs.4,948/- towards
structural steel charges and Rs.4,12,083/- towards liquidated damages.
41. With regard to both electricity consumption charges and hire charges,
the plaintiff stated in the reply statement that these amounts were recovered
from the running account bills. The pleading, in relevant part, from paragraph
3(o) is set out below:
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“(o) ....The plaintiff states that the electricity charges and the
hire charges for the diesel generator sets have already been
recovered by the defendant from the running bills and the
Defendant is not entitled to unilaterally recover additional
amounts on account of alleged audit conducted by their
Board.”
No evidence of such recovery was, however, provided. When questioned on the
basis of recovery, DW1 stated as under on 28.02.2020:
“Q: In the recoveries to be allegedly made against the
plaintiff, what is the basis for seeking the alleged recovery of
the sum of Rs.4,14,620/- towards current consumption
charges?
A: The recoveries have been made on the actual consumption
of power supply by the plaintiff since the power supply was
on chargeable basis as per the contract condition.”
By taking into account the contractual stipulation that the plaintiff was liable to
pay for electricity consumption, the lack of evidence of adjustment thereof
against running account bills and the oral and documentary evidence, I
conclude that the defendant is entitled to the sum of Rs.4,14,620/- towards
electricity consumption charges.
42. Clause 6.6(c) of the GCC provides for the levy of interest on the
mobilisation advance at 18% per annum. In this contract, however, the
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defendant agreed to provide an interest-free mobilisation advance of
Rs.29,09,300 and disbursed the same on 27.07.1989. As per clause (vii) of the
letter of acceptance, this amount was to be recovered from the running account
bills within the original contract period. The completion of work, in this case,
extended beyond the original contract period. Clause 6.6(x) of the GCC deals
with a situation where an interest free mobilisation advance could not be used
within the specified time schedule. The said clause is as under:
“ x. In case the advance is interest free, in the event of the
CONTRACTOR not producing the materials/machineries and
utilising the advance for the purpose for which it was given
as per the time schedule given in the contract, the
CONTRACTOR is liable to pay interest at the Board's
specified rate from the time the advance is given to the date
of actual utilisation of the advance and the commencement of
the work governed by the contract.”
Considering that a mobilisation advance is in the nature of a loan and such loan
could not be recovered within the originally anticipated time frame, in this
contractual context, I conclude that this counter claim of Rs.51,590/- is liable to
be allowed. As regards the other recoveries made by the defendant towards
issuance of materials, damaged cables and structural steel charges, the
sustainability thereof is dependent on evidence.
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43. In the proof affidavit of DW1, the recoveries were dealt with as
follows in internal page 6 thereof (page 218 of volume I):
“ .... For materials and other recoveries an amount of
Rs.7,71,459.35 has to be recovered from the plaintiff as per
Defendant's records towards the cost of cement, steel, water
charges, Retention amount, etc. The recovery proposed by
the Defendant for materials such as cement, steel supplied to
a tune of Rs.3,11,859.35 is correct....”
In course of cross-examination on 02.01.2019, DW1 was questioned about
these recoveries. The relevant question and answer is as under:
“Q: Is there a document on record showing details of all the
recoveries effected by the defendant and the payments made
by the defendant?
A: Yes, pre final bill showing the recoveries, deductions etc.
was sent to the plaintiff for their consent but the plaintiff did
not evoke any response.”
While the proposed recoveries are mentioned in letter dated 06.01.1999 from
the defendant to the plaintiff (Ex. D-75), the said letter contains no particulars
regarding the basis for such recovery. There is no information on the quantity
of supply or the dates of supply or how the amount was computed. Since the
defendant has failed to discharge the burden of proof in this regard, the counter
claim for recovery towards materials issued, damaged cables and income tax is
disallowed. The contract was completed a long time ago and the defect liability
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period has long expired. Therefore, the recovery of Rs.22,435/- towards
retention is impermissible. I next examine the claim for liquidated damages.
44. The admitted position is that work was required to be completed on
or before 26.09.1992 as per Ex. P-4, but was completed only on 31.05.1993.
The defendant has counter claimed a sum of Rs.4,12,083/- as liquidated
damages on this account. In order to sustain this claim, the defendant has to
establish that the delay is attributable to the plaintiff. Towards this end, the
defendant should have placed on record the critical path regarding this project
by specifying the sequential activities and by proving that project completion
was delayed for reasons attributable to the plaintiff. The plaintiff alleged that
delay occurred due to multiple reasons such as not providing uninterrupted
supply of power, delayed supply of sulphate resistant cement, not permitting
controlled blasting and heavy rains and cyclonic weather.
45. While the defendant has effectively shown that provision of
uninterrupted power supply was not assured under the contract, it admitted that
there was a delay of 18 days in providing sulphate resistant cement. The
defendant also agreed that it could not permit controlled blasting due to
proximity to the Indian Oil Corporation's storage tank, naphtha line, etc. and
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that this would result in additional excavation time. Relevant questions and
answers from the cross-examination of DW1 on 02.01.2019 are set out below:
“Q: In terms of the Tender document was the plaintiff
entitled to carry on a portion of excavation using controlled
blasting techniques?
A: Yes.
Q: Is it not a fact that the time for performance and
completion of the plaintiff was dependent on the plaintiff's
being able to use controlled blasting?
A: Yes, if they had resorted to controlled blasting for
excavation, they should have completed that activity much
earlier.”
Even with regard to floods, the defendant agreed to compensate for silt
removal. In the face of this evidence and in the absence of evidence that the
delay is attributable to the defendant, the counter claim for liquidated damages
is rejected.
46. In summary, out of the total counter claim of Rs.29,12,061.35/-, a
sum of Rs. 21,38,191/- (Rs.4,14,620/- + Rs.16,71,981/- + Rs.51,590/-) is
allowed towards current consumption, DG hire charges and interest on
mobilisation advance. In order to arrive at the net payable, the aggregate sum
payable by the defendant to the plaintiff, i.e. Rs. 8,77,301/- (Rs.3,82,700/- + Rs.
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4,48,675/- + Rs. 45926/-), should be deducted there from. In effect, a sum of
Rs.12,60,890/- is payable by the plaintiff to the defendant for this project.
Amounts payable under other contracts, however, should be reckoned before
deciding on net payables.
Piling work for Basin Bridge
47. The scheduled completion date was 12 months from the date of
handing over the site. The plaintiff commenced work on 25.01.1994 and
completed the same on 02.11.1995. The plaintiff made an aggregate claim of
Rs.41,77,366.92/- under this contract. This aggregate claim comprised a claim
of Rs.1,09,096.40/- towards unpaid bills, a sum of Rs.7,74,415.12/- towards
balance due towards escalation, a sum of Rs.7,96,208/- towards reimbursement
of interest deducted towards mobilisation advance, security deposit and
additional security deposit and a sum of Rs.23,50,000/- towards idling charges.
I first deal with the escalation claim.
48. The contract documents included Articles of Agreement dated
30.05.1994 (the Articles of Agreement) (part of Ex. P-26) specifying the
consideration of Rs.2,29,51,000/- calculated with reference to the rates
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specified in the schedule. The schedule set out unit rates and estimated
quantities. Clause 8 of the Articles of Agreement specified as under:
“8. The Board shall make payment to the contractor in
accordance with the unit rates provided against the various
items in the Schedule of accepted prices as specified in the
specification irrespective of the fact whether the amount
exceeds Rs.2,29,51,000/- (Rupees two crores twenty nine
lakhs and fifty one thousand only) or not.”
Clause 7 of the Instructions to Bidders (also part of Ex. P-26) deals with prices
and rates and provides for escalation as follows:
“7.4 In case the Tenderer insists on an escalation clause,
appended to his tender, he shall furnish the formula for
escalation along with a separate ceiling on escalation for
labour, material, fuel, etc., and base date for operation of
escalation (Also refer clause 83 of Section 'D').
7.5 The Contractor shall clearly indicate either a price
variation formula for escalation alongwith separate ceiling
under each head or other means for regulating payment in
the event work spills over the contract period now envisaged
due to reasons attributable to TNEB. The contractors shall
furnish ceiling for various components on the balance work.
The ceiling percentage is to be applied on the contract
value.”
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49. While submitting its offer on 03.02.1992 (Ex. P-26, page 170 of
volume VI), the plaintiff specified a price escalation formula. The base date
was fixed as the date of tender, i.e. February 1992. This formula provided for
the adoption of the minimum wage rate as per the Minimum Wages Act and
rules framed thereunder for calculating escalation on labour costs. With regard
to materials (other than cement and steel), it provided for the adoption of the
All India Wholesale Price Index (All Commodities) published by the Reserve
Bank of India. As regards petroleum, oil and lubricants (P.O.L.), it provided for
adoption of the rates at the filling station closest to the project site. The
plaintiff's price escalation formula was accepted by the defendant in the letter
of acceptance subject to the following ceilings:
“1.1) The accepted rates given in the annexed schedule shall
be kept firm during the entire contract period subject to the
variations as detailed below:-
The contractors shall be paid for escalation on the cost
of labour, materials, (other than cement and steel), and
P.O.L. on the basis of the formula indicated. The overall
ceiling is as shown below:-
a) For all periods within the contract period: 1 ½
% contract value
b) For a period upto 12 months beyond the schedule date of
completion: 2 ½ % of contract value
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c) Beyond the above period as mentioned in b) above:
Escalation formula to be reviewed and revised by mutual
agreement with TNEB.
50. By letter dated 06.10.1997 (Ex. P-44), the plaintiff computed
escalation as per the formula in a total sum of Rs.39,49,825.10/-. Thereafter, the
plaintiff applied the agreed overall ceilings on the executed contract value of
Rs.2,79,62,646/- and claimed an aggregate sum of Rs.11,18,680/- towards
escalation. After giving credit to the sum of Rs.3,44,265/-, which was paid by
the defendant, a net claim for Rs.7,74,415/- was made in this suit. The
defendant contended that the plaintiff was only entitled to 1½ % on the value of
Rs.2,29,51,000/- specified in the contract documents. As is evident from clause
8 of the Articles of Agreement and clause 21 of the Instructions to Bidders, this
contract is a unit rate contract and payment is on measure-and-pay basis.
Consequently, the calculation of the ceilings as a percentage of the executed
value of work is in consonance with the contract. Besides, as noticed above, as
per the escalation formula, the claim is Rs.39,49,825.10/-. Hence, I conclude
that the plaintiff is entitled to the sum of Rs.7,74,415.12/-. As a corollary, the
counter claim of the defendant towards alleged excess payment of Rs.
1,53,712/- as escalation is rejected.
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51. As regards unpaid bills, the plaintiff claimed a sum of Rs.
2,56,743.80/- in paragraphs B (ix) of the plaint and 4 (e) of the reply statement
by asserting that the total value of work done is Rs.2,79,67,003.80/-. The
defendant denies this claim by stating that the total value of work done is
Rs.2,78,19,219/- and not Rs. 2,79,67,003.80/- as per the measurement book.
The defendant states that a sum of Rs. 2,77,10,260/- was paid to the plaintiff for
this contract. In the reply statement, the plaintiff admits receipt of this amount.
The defendant did not exhibit the measurement book and the plaintiff also
failed to adduce credible evidence on the total value of work done. In
paragraph B (xvi) of the plaint, the plaintiff makes a lower monetary claim of
Rs.1,09,096.40/- towards unpaid bills in this contract while making a total
claim of Rs. 41,77,362.92/-. The defendant provided a revised calculation in
course of final hearing that Rs.1,08,959/- + Rs. 2051/- = Rs.1,10,010/- is
payable. In those circumstances, I conclude that the admitted sum of
Rs.1,11,010/- is payable on this account.
52. With regard to excavation below the water table, the plaintiff claimed
that the rate for such work is Rs.130/- per cubic metre. The said contention is
advanced by interpreting the SOR. The relevant entries in the SOR are as
under:
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Sl. Description of items Unit Quantity Rate Amount
in Rs.
No. (4) In fig In words
(1) (2) (3) (5) (6)
1. Excavation in the dry soil M3 3500.0 Rs.30/- Rupees 1,05,000
(for all types of soils) for Thirty only
any section including all
labour and equipments,
sheeting, shoring,
excavation lifting,
hauling and stockpiling
of excavated material for
all lifts and for all leads
within the project area as
per specifications.
2. Extra for excavation M3 3000.0 Rs.100/ Rupees 3,00,000
below water table (for all - One
types of soil) for any hundred
section including all only
labour and equipment,
sheeting, shoring,
excavating, lifting,
hauling, stockpiling of
excavated material and
all labour and
equipments for de-
watering and maintaining
dry working conditions
during excavation,
demolition/dismantling
work and backfilling as
per specifications.
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53. The first SOR item relates to excavation in dry soil. By estimating the
quantity of work at 3500 cubic metres, at the rate of Rs.30/- per cubic metre,
the price has been fixed at Rs.1,05,000/- for this SOR item. Item 2 relates to
excavation below the water table. Because the phrase used is “extra for
excavation below water table”, the plaintiff contended that the rate should be
Rs.30/- + Rs.100/-, i.e. Rs.130/- per cubic metre. On examining this SOR item,
it is evident that the quantity was estimated at 3000 cubic metres. At the rate of
Rs.100/- per cubic metre, the total price of Rs.3,00,000/- was arrived at. Thus,
it is very clear from this SOR item that the rate fixed for excavation below the
water table was Rs.100/- per cubic metre and not Rs.130/- per cubic metre, as
contended by the plaintiff.
54. The plaintiff requested for reimbursement of Rs.7,96,208/-, which
was recovered by the defendant as interest on the mobilisation advance and
security deposit. Clause 4.0 of the letter of acceptance (part of Ex. P-26 at page
236 of volume VI) provides as under regarding mobilisation advance:
“ 4.0) MOBILISATION ADVANCE: The request for the
payment of mobilisation advance at 10% value of contract is
agreed against submission of Bank Guarantee and you have
agreed to pay the interest for the mobilisation advance.
Hence an amount of Rs. 22,95,100/- towards mobilisation
advance (10% of contract value) will be paid to you as a
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special case. You are requested to pay the interest to 20% for
the above amount and produce the Bank Guarantee at
convenient units for the Mobilisation advance.”
The mobilisation advance is in the nature of a loan. Therefore, even assuming
that the plaintiff was not responsible for delay in execution, the plaintiff is not
entitled to reimbursement of interest on mobilisation advance.
55. Clause 2.0 of the letter of acceptance (part of Ex. P-26 at page 235 of
volume VI) deals with security deposit as follows:
“ 2.0) SECURITY DEPOSIT: You are exempted from paying
EMD, as your firm is a permanent deposit holder with Tamil
Nadu Electricity Board. However you have to pay a sum of
Rs.4,59,020/- towards Security Deposit for the above work.
But your request to pay the Security Deposit by Bank
Guarantee for the above amount together with interest is
accepted. Hence you are requested to submit the Bank
Guarantee for the above amount including interest at 20% in
convenient units within 15 days from the date of receipt of
this letter. The interest at 20% on Bank Guarantee towards
Security Deposit will be recovered in the first running
account bill payable to you. The payment of Security Deposit
will be refunded to you only after the expiry of the
maintenance/guarantee period. If you fail to furnish the
above Security Deposit within the above stipulated period
then this acceptance letter is liable to be cancelled.”
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While a security deposit cannot be equated with a loan, it appears from the
above clause that the defendant agreed to accept a bank guarantee towards
security deposit on condition that such bank guarantee be topped-up to include
interest at 20% on Rs. 4,59,020/- and subject to the condition that this would be
recovered from the first running account bill. In view of this express
contractual stipulation, the plaintiff is not entitled to reimbursement of this
amount.
56. The plaintiff also claimed a sum of Rs.23,50,000/- towards idling for
94 days. The contract between the parties expressly excludes any claim for
idling by specifying as under at clause 2.8 of the Instructions to Bidders:
“2.8 Idle time charges for any reason whatsoever shall not
be entertained by the owner.”
Even otherwise, the plaintiff has not provided any evidence in support of the
disruption claim. Therefore, the said claim cannot be sustained and is rejected.
Counter claims of defendant in piling work contract
57. The plaintiff contended that execution was delayed due to belated
release of pile drawings, non-availability of work front, increase in the number
of piles and significant increase in underground obstructions. As regards the
increase in the number of piles, by referring to the relevant SOR item, learned
counsel for the plaintiff pointed out that it provides for driving piles in an area
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of 20,250 metres. By taking into account the piling depth of 13.5 metres, he
submitted that it works out to 1500 piles (20250 divided by 13.5). As against
1500 piles, he submitted that the agreed position is that 2023 piles were driven
by the plaintiff. In response to this contention, learned counsel for the
defendant submitted that clause 5.0 of the letter of acceptance enables increase
in the quantities of individual items of work and that no claim is maintainable
in respect thereof. Clause 5 of the letter of acceptance is as under:
“5.0 QUANTITY VARIATION:
If the value of the work increases to more than 25%
and upto 50%, prices will remain firm except for payment of
escalation as per escalation formula indicated in your offer.
In case the value of the works are less than 25% and upto
50% then your rates for all the items quoted will be enhanced
by 10%.
The above limit of variation is for the total contract
value only and the individual item can vary to any extent.
You can not claim any extra payment on this
account.”(emphasis added)
58. As contended by learned counsel for the defendant, the above clause
expressly enables variation in the quantity of individual items and excludes any
claim for extra payment on that account. The plaintiff, however, has not made a
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claim for extra payment on account of the increase in the number of piles.
Instead, the increase in the number of piles is cited as a reason for delay in
execution of the contract. On examining the relevant SOR item, the contention
of learned counsel for the plaintiff that it indicates that 1500 piles would be
driven over an extent of 20250 metres is liable to be accepted. The tender
documents specified the approximate number of piles as 1650 (page 153 of
volume VI), but clarified that this was approximate and tentative and that the
actual number would be decided only during detailed engineering. Even so,
since the total number of piles that were driven was 2023, which is a substantial
increase over the number envisaged in the contract, it is likely that the time
taken for execution would increase proportionately. To that extent, I conclude
that the said increase in quantity of work would justify an extension of the
contract period.
59. DW1 was questioned about the delay in release of drawings. The
following question and answer during cross-examination on 25.01.2019 is
pertinent on this issue:
“Q: I therefore put it to you that even after the Scheduled
completion date which is 24/1/1995, drawings for
construction were being released by the defendant to the
plaintiff?
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A: Yes, last lap of drawing was released after 24/1/1995 was
on the ground of delayed particulars made by the plaintiff.”
With regard to underground obstructions, the following question and answer of
DW1 during cross-examination on 01.10.2019 is pertinent:
“Q: I therefore put it to you that the plaintiff had removed
almost 583% in excess of quantity in respect of underground
obstruction as compared to the quantity as set out in the
BOQ?
A: Perhaps it could have been on actuals, as the defendant
was unassumed for the predictability of underground
obstructions, the conditions were framed in the tender for the
tenderers to shoulder the sole grounds of responsibility to
remove the underground obstructions by means of rigourous
process of data examination.”
In this factual matrix, learned counsel for the defendant submitted that piling
work was delayed in the contract because the plaintiff did not provide the
dynamic test results for the piles. Neither party has placed on record the critical
path for the execution of this project. While clause 2.2 of the Instructions to
Bidders (Ex. P-26 at page 10 of volume VI) contains a break-up of work with a
broad time schedule, this does not appear to list sequential activities. Merely on
the basis of communications regarding the non-provision of drawings or the
non-provision of the dynamic test results for the piles, no rational conclusion
may be recorded regarding the impact thereof on the execution of work. Put
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differently, any construction project consists of activities that may be carried
out sequentially or concurrently. Unless the record shows the sequential
activities and also provides evidence of impact of particular delay events on
such sequential activities, it cannot be decided as to whether a particular delay
event actually impacted the execution of the contract as per the specified time
schedule. In the absence of actionable evidence in this regard, it is not possible
to conclude whether the belated supply of pile drawings by the defendant or the
non-supply of dynamic test results by the plaintiff impacted the execution and,
if so, the extent of such impact.
60. Given that the burden of proof lies on the defendant in this
connection, the levy of liquidated damages is not sustainable in the absence of
proof that such delay was attributable to the plaintiff. Therefore, I conclude that
the defendant has failed to establish its entitlement to levy liquidated damages
of Rs.13,90,968/- for delayed execution.
61. For reasons set out while determining the plaintiff's escalation claim,
the counter claim for recovery of Rs.1,53,712/- towards alleged excess
escalation is rejected. The defendant also counter claimed penal interest of
Rs.7689/- on the unadjusted portion of the mobilisation advance and
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Rs.1,27,708/- on the counter claims by the defendant. On examining the
contract, I do not find contractual basis to levy the same. During cross-
examination on 09.03.2020, DW1 was questioned on this issue. The relevant
question and answer are as under:
“Q: Can you then point out the clause in Ex.P26/Ex.D26
where the defendant has the power to levy penal interest in
respect of mobilisation advance?
A: There is no clause in the contract entitling the levy of
penal interest and further no penal interest has been levied.
Therefore, the penal interest counter claims are rejected. Although clause 3.0 of
the letter of acceptance (part of Ex. P-26 at page 235 of volume VI) provides
for the levy of 20% interest on the retention amount, it provides for the
deduction thereof from the running account bills. Except for mentioning in the
enclosure to letter dated 26.04.2000 (Ex. D-88 at page 228 of volume IV) that a
claim of Rs.2,27,889/- is made towards interest on R.A. (period 9.1.96 to
2.11.96), no details were provided to substantiate the claim. Therefore, this
claim is rejected. For the same reason, the smaller counter claims in this
contract of Rs.77,005/- towards interest on security deposit, Rs. 2179/- +
Rs.327/- towards income tax, including surcharge, C.C. Charges, etc. are
rejected.
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62. Thus, the plaintiff is entitled to receive an aggregate sum of
Rs.8,84,425.12/- (Rs.1,11,010/- as the agreed amount towards unpaid bills plus
the net payable of Rs.7,74,415.12/- towards balance payable as escalation). All
the counter claims of the defendant are rejected for reasons stated above.
Civil and Structural Works at Basin Bridge
63. As in the case of the piling work contract, the plaintiff made a claim
of Rs.75,58,200/- towards idling charges. In the tender documents, at clause 2.8
of the Instructions to Bidders, it was specified as under:
“2.8 Idle time charges for any reason whatsoever shall
not be entertained by the OWNER.”
The above disruption claim of Rs.75,58,200/- was made for alleged inability to
utilise men and materials for 650 days. Apart from the contractual prohibition,
the said claim cannot be sustained on account of the complete lack of evidence
in support of the claim.
64. A claim for excavation below the water table was made. Such claim
was made by asserting that payment should be made at Rs.140/- per cubic
metre. The relevant SOR items are as under:
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Sl. Description of items Unit Quantity Rate Amount
in Rs.
No. (4) In figure In
words (6)
(1) (2) (3)
2(i) Excavation, in the dry M3 20,000 Rs.60/- Rupees 12,00,000
(for all types of soil) for Sixty
any section including all only
labour and equipment for
sheeting, shoring,
excavation, lifting,
hauling and stock piling
of excavated material for
all lifts and for all lead
within the project area as
per specifications.
2(ii) Extra for excavation M3 14,000 Rs.80/- Rupees 11,20,000
below water table (for all eighty
types of soil) for any only
section including all
labour and equipment for
sheeting, shoring,
excavating, lifting,
hauling, stockpiling of
excavated material and
all labour and equipments
for de-watering and
maintaining dry working
area during excavation,
concreting and
backfilling as per
specifications.
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65. SOR item 2(i) deals with excavation in dry soil. By estimating the
total quantity at 20,000 cubic metres and providing the rate of 60 per cubic
metre, the total price of Rs.12,00,000/- has been arrived at. In SOR item 2(ii),
by estimating the quantity at 14,000 cubic metres, at the rate of Rs.80/- per
cubic metre, the total price of Rs.11,20,000/- has been arrived at. By
emphasising the word 'extra' in the phrase “extra for excavation below water
table”, the plaintiff has claimed at the rate of Rs.140/- (Rs.60/- + Rs.80/-) per
cubic metre. As described above, SOR item 2(ii) proceeds on the basis that the
rate is Rs.80/- per cubic metre for excavation below the water table and not at
Rs.140/- per cubic metre. Hence, the plaintiff's interpretation is not in
consonance with the SOR item.
66. A claim of Rs.14,63,910/- was made in respect of disposal of surplus
earth on the ground that it was disposed of beyond the project area and that it,
consequently, qualifies as additional work. The plaintiff asserts that 14639.105
cubic metres of excavated earth were transported and that it is entitled to
Rs.14,63,910/- at Rs.100/- per cubic metre. The defendant denied this claim on
the ground that clause 1.4.0 of the Technical Specifications for Earth Work
specifies that the unit rate for excavation includes all related activities,
including transportation of surplus earth for disposal. Therefore, it was
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contended that this claim is untenable. Clause 1.4.0 (Ex. P-55 at page 39 of
volume VII) is as under:
“ 1.4.0 Disposal of surplus earth
The contractor shall arrange to transport the surplus
excavated soil remaining after backfilling to any place within
the project area as directed by the Engineer-in-charge. The
soil so transported shall be stacked and levelled neatly. The
unit rate for excavation shall including loading,
transporting, unloading and stacking, levelling complete. The
disposal area shall be intimated by the Engineer-in-charge.”
(emphasis added)
67. The expression “project area” is not defined in the contract. If the
place at which the disposal was done were to be construed as part of the project
area, the plaintiff would not be entitled. On the other hand, if the place of
disposal were to be construed as outside the project area, the plaintiff would be
entitled to its claim. The plaintiff has made this claim with details set out inter
alia in Annexure V of letter dated 04.11.1998 (Ex. P-45 at page 85 of volume-
III). In letter dated 28.06.1999 from the plaintiff to the defendant (Ex. P-80 at
page 195 of volume III), this claim was reiterated by contending that the
additional lead is five times more than in the plant area. The plaintiff also
included this claim in the 19th R.A. Bill (part of Ex. P-73 in volume III).
Ex.D58 clearly shows that the defendant called upon the plaintiff to dispose of
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surplus earth at a different location. The defendant has been unable to establish
that the surplus earth was disposed of within the project area. Therefore, I
conclude that the plaintiff is entitled to this claim.
68. The plaintiff also made a claim for escalation. With regard to
escalation, clause 7.3 and 7.4 of the Instructions to Bidders (Ex. P-55 at page
319 of volume VII) is identical to the clauses from the piling work contract
extracted at paragraph 38 above. In addition, clause 83.0 of the General
Conditions of Contract (GCC) provides as under:
“83.0 Price Variation Clause:
The tenderer has to indicate clearly whether his offer is a
firm price contract without escalation or whether the prices
are subject to escalation. In case the prices are not firm, the
tenderers are to specify their own formulae for escalation
specifying percentages of labour, material, and other
components on which they want escalation as well as the
base date for the operation of escalation. Separate ceiling for
escalation for labour, material and fuel shall also be
indicated. The tenderers are also informed that if nothing is
specified in their tender about escalation, their offer will be
taken as 'FIRM WITHOUT ESCALATION' for the entire
period of work including any agreed extensions thereto. If
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the tenderers give only the escalation formulae without any
ceiling, their tenders will be summarily rejected.”
(emphasis added)
Clause 87 provides as follows with regard to additional claims:
“87.0 ADDITIONAL CLAIMS BY THE CONTRACTOR
The contractor should note that any extra claims such
as supplementary items, escalation, extra lead etc. shall be
preferred by the contractor within three months from the date
of completion of the work. Belated claims will not be
entertained. ”
69. It is common ground between the parties that the plaintiff did not
request for an escalation clause in the contract and specify the escalation
formula. Clause 1.1 of the letter of acceptance is also relevant in this
connection. The said clause is as under:
“1.1) The accepted rates given in the annexed schedule
shall be kept 'FIRM' during the entire contract period subject
to the variations as detailed below:
(a) Rates mentioned in the accepted schedule under
this contract, will hold good for a plus or minus 25%
variations.
(b) In case the variation is beyond (+) 25% and upto
(+) 50% i.e. increase in the quantities, the rates will be
increased by 5% (Five percent only).
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(c) In case the variation is of the order of (-) 25% to (-)
50%, (i.e.) decrease in the quantities, the rates will be
increased by 7 ½ %.
(d) For variations exceeding these limits, separate
rates will be negotiated. It shall be specifically noted that
TNEB shall not pay any increase in rates over those accepted
herein for the delay in completion of works under any
circumstances.”
Thus, except with regard to a variation of not less than 25% in the total contract
value, parties agreed that the prices would remain firm until completion of
work, including during extended periods. While escalation may be granted
when the contract is silent (P.M. Paul v. Union of India 1989 Supp (1) SCC
368), it cannot be granted when there is an unequivocal prohibition even in the
extended period. Because of the nature of the clause, therefore, even the
judgment of the Supreme Court in Assam State Electricity Board and others v.
Buildworth (P) Ltd. (2017) 8 SCC 146 does not come to the aid of the plaintiff.
By taking note of these contractual clauses, the escalation claim is rejected.
70. A claim for reimbursement of interest of Rs.19,60,883/- on
mobilisation advance was made by the plaintiff. Since such mobilisation
advance is in the nature of a loan, the request for reimbursement cannot be
entertained. The plaintiff also claimed refund of the security deposit of
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Rs.13,37,370/- and additional security deposit of Rs.19,544/-. On account of
completion of work and the expiry of the maintenance/defect liability period,
the plaintiff is entitled to such refund. Indeed, as regards the latter, the
defendant has admitted the liability in the written statement.
71. A claim of Rs. 9,79,333.89/- was made by the plaintiff towards
balance due on supplementary or additional work. In the plaint at paragraph C
(x) e) details of the 12 items of work are provided. Ex. P-45 contains further
details of such supplementary work in Annexure VII thereto at page 86 of
volume III. The said Annexure mentions the aggregate claim of
Rs.44,69,128.87/- and the net claim of Rs.9,79,333.89/- after giving credit to
the sum of Rs.34,89,794.98/- received earlier by way of part payment towards
all 12 items of work. In the written statement, the defendant admits that 10
items of additional work were executed and that a sum of Rs.5,22,206/- is
payable on this account. As regards the sun shade facia work, it is stated that it
is covered in clause 2.1.6 of Section-1 of the specification and that brick work
in II sort was substituted for brick work in sort I. By letter dated 29.04.1999
from the plaintiff to the defendant (Ex. P-49 at page 101 of volume III), it was
clarified by the plaintiff that part payment for all 12 items were made with the
approval of the Chief Engineer and that an executed and measured work cannot
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be deleted. This contention is valid. Therefore, I hold that the plaintiff is
entitled to the entire balance claim of Rs. 9,79,333.89/- under this head.
72. The plaintiff also made a claim of Rs. 5,46,271/- for constructing
reinforced concrete (RC) walls for the earth pits. On the basis that this is
additional work, the above claim was made. In the written statement, the
defendant does not deny that this work was executed or that it constitutes
additional work. The contention of the defendant, in relevant part, is set out
below (internal page 28 of amended written statement):
“ d) The plaintiff has failed to give rebate for the 'associated
civil works' as agreed during the meeting held with the Chief
Engineer/Civil Designs on 23.6.98. As the specification was
changed to suit the requirement of defendant, payments are
to be paid separately for this item of work done by the
plaintiff. As such the plaintiff has to give rebate for the
portion of the work that is for 'associated civil works' which
the plaintiff has not actually done while providing the earth
pit, per the revised specification. Hence, this item could not
be finalised....”
The above contention has been raised after the work was executed without
mentioning the agreed rebate. Especially in the context of a unit rate contract,
wherein payment is made on 'measure-and-pay' basis, the defence is tenuous
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and cannot be accepted. Hence, I conclude that the plaintiff is entitled to this
claim.
73. Thus, out of the plaintiff's claims, the following are accepted:
Rs.14,63,910/- towards extra lead; Rs.13,37,370/- towards refund of security
deposit; Rs.19,544/- towards refund of additional security deposit;
Rs.9,79,333.89/- towards additional work; and Rs.5,46,271/- towards RC walls
for earth pits. This aggregates to a sum of Rs. 43,46,428.89/-.
Counter claims of defendant for civil and structural work at Basin Bridge
74. The defendant alleges that the plaintiff is responsible for the delay in
execution of the contract and has claimed a sum of Rs.35,43,255/- as liquidated
damages in the amended written statement. Such claim is made on the basis that
all drawings were provided by 09.10.1995, whereas the contract was completed
in September 1997. The plaintiff refuted these contentions on the basis that
work was delayed due to delayed issuance of drawings, which were issued even
in the 26th month after the site was handed over and non-availability of work
front. As recorded in relation to the piling work contract, the defendant has not
placed on record the critical path for execution of the contract. Even a bar chart
indicating key events and time lines in relation thereto has not been provided.
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In these circumstances, as stated earlier, it is not possible to rationally
determine the reasons for delay and attribute responsibility for such delay.
Questions were put to DW1 on whether the defendant had adduced proof of
loss in respect of each contract with regard to the claim of liquidated damages,
and the consistent answer across these contracts was that there is no proof of
loss. The question and answer recorded on 09.03.2020 as regards proof of loss
in the civil and structural work at Basin Bridge is as follows:
“ Q: Would I therefore be correct in suggesting that in so far
as the civil and structural work is concerned no proof of
losses for liquidated damages has been filed?
A: Yes, the replies given in other two contracts is having the
striking similarity for these annotations.”
Because the burden of proof with regard to the counter claim towards
liquidated damages is on the defendant, I conclude that the defendant has
failed to establish that it is entitled to impose liquidated damages for delay by
the plaintiff.
75. The defendant also counter claimed a sum of Rs.9,22,215/- towards
supply of materials, Rs.47,985/- towards recovery of excess amount paid in
R.A. Bill XIX and part. As regards supply of materials, there is significant
disparity between the counter claim of Rs.1,56,975/- made only towards supply
of G.I. Flats in the first filed written statement and the counter claim of Rs.
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9,22,215/- made in the amended written statement. Both in the proof affidavit
and in the cross-examination, DW1 did not identify relevant documentary
evidence or even provide details of recoveries. Considering the above aspects,
the defendant has failed to discharge the burden of proof in this regard and,
consequently, the counter claim for recovery towards materials issued and
alleged excess payments is rejected. In view of the rejection of these counter
claims, it becomes immaterial as to whether the amended counter claims are
within the period of limitation.
76. In sum, as regards this contract, the plaintiff is entitled to an
aggregate sum of Rs.43,46,428.89/- (Rs.14,63,910.50/- + Rs.13,37,370/- + Rs.
19544/- + Rs.9,79,333.89/- + Rs.5,46,271/- ).
Net payables across all three contracts
77. Upon reckoning net payables in all three contracts, across the three
contracts, the defendant is liable to pay Rs. 43,46,428.89/- + Rs.8,84,425.12/- -
Rs.12,60,890/- = Rs.39,69,964.01/-, which is rounded off as Rs.39,69,964/- to
the plaintiff. By taking into account inflation and interest rates during the
relevant period, I fix the rate of interest on the principal sum at 9% per annum
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from the date of plaint until realisation. Issues (i), (v) and (vi) are disposed of
on these terms.
Issue Nos. (ii), (iii) and (iv)
78. The work in relation to the Tuticorin Thermal Power Project was
completed on 31.05.1993; the work in relation to piling at Basin Bridge was
completed on 02.11.1995; and the civil and structural work at Basin Bridge was
completed on 30.09.1997. The defect liability period of one year also ended
several decades ago. Therefore, the plaintiff is entitled to completion
certificates. With regard to return of bank guarantees, as discussed earlier,
several bank guarantees for an aggregate sum of Rs.75,00,000/- were provided
to the defendant earlier. These bank guarantees were directed to be returned by
order dated 03.08.2000 in O.A. No.567 of 2000 subject to the plaintiff
submitting a bank guarantee for a sum of Rs.24,00,000/-. On account of
holding that there is a net payable by the defendant to the plaintiff, this bank
guarantee is liable to be returned for cancellation. These issues are disposed of
on these terms.
Issues (vii) and (viii)
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79. As the partly successful party, the plaintiff is entitled to proportionate
costs. The plaintiff had paid a sum of Rs. 3,92,405/- as court fees and is entitled
to a sum of Rs.1 lakh towards the same. The plaintiff is also entitled to a sum of
Rs.4,00,000/- towards lawyer's fees and expenses. In the aggregate, the
defendant is liable to pay a sum of Rs.5 lakhs as costs to the plaintiff.
80. In the result, the suit is decreed as under:
(i) The defendant is directed to pay a net sum of Rs.39,69,964/- (after
setting off the net allowed counter claims of Rs.12,60,890/- from and out of the
aggregate allowed counter claims of Rs.21,38,191/-) to the plaintiff with
interest thereon at 9% per annum from the date of plaint until realisation.
(ii) The counter claims are partly allowed to the extent indicated in the
judgment with no net payables by the plaintiff to the defendant.
(iii) The defendant is directed to issue completion certificates in respect
of civil work for the Tuticorin Thermal Power Project, piling work for the Gas
Turbine Power Project at Basin Bridge and civil and structural work for the Gas
Turbine Power Project at Basin Bridge.
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(iv) The defendant is directed to return for cancellation the bank
guarantee for the sum of Rs.24,00,000/- procured and provided by the plaintiff
in terms of order dated 03.08.2000 in O.A. No.567 of 2000.
(v) The defendant is directed to pay an aggregate sum of Rs.5 lakhs as
costs to the plaintiff.
25.10.2025
Index : Yes / No
Internet : Yes / No
Neutral Citation: Yes / No
kj
To
Tamil Nadu Generation and Distribution
Corporation Limited, N.P.K.R.R. Maligai,
800, Anna Salai, Chennai-600 002.
Represented by its Chairman.
Plaintiff's witness:
P.W.1 – Mr.R.Gopal
Defendant's witness:
D.W.1 - Mr.R.Ramraj
Documents exhibited by the plaintiff:
Exhibit Description
Nos.
Ex.P1 Original Articles of Agreement with Annexures dated 23.11.1989
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Exhibit Description
Nos.
entered into between the Plaintiff and Defendant.
Ex.P2 The photo copy of Bank Guarantee dated 10.08.2000 and its
amendment dated 04.08.2010 given by the Plaintiff.
(Ex.P2 is marked subject to the objection that the document is
xerox copy.)
(The defendant in his written statement at page 41 admitted the
contents of the document, hence it is marked.)
Ex.P3 The photo copy of Latest renewed Bank Guarantee dated
05.08.2016 given by the Plaintiff.
(Ex.P3 is marked subject to the objection that the document is
xerox copy.)
Ex.P4 The original Letter dated 11.09.1991 sent by the Defendant to
Plaintiff.
Ex.P5 The office copy of Letter dated 27.09.1991 taking over site sent
by the Plaintiff to Defendant.
Ex.P6 The original Letter dated 19.11.199l sent by the Plaintiff to
Defendant.
Ex.P7 The original Letter dated 13.06.1992 sent by the Plaintiff to
Defendant.
Ex.P8 The office copy of Letter dated 21.09.1992 sent by the Plaintiff to
Defendant.
Ex.P9 The original Letter dated 03.11.1992 sent by the Plaintiff to
Defendant.
Ex.P10 The original Letter dated 17.12.1992 sent by the Plaintiff to
Defendant.
Ex.P11 The copy of the Minutes of Meeting dated 30.01.1993.
Ex.P12 The original Letter dated 22.02.1993 sent by the Plaintiff to
Defendant.
Ex.P13 The original Letter dated 16.02.1993 sent by the Defendant to
Plaintiff.
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Exhibit Description
Nos.
Ex.P14 The original Letter dated 30.03.1993 sent by the Defendant to
Plaintiff.
Ex.P15 The original Letter dated 26.08.1993 sent by the Plaintiff to the
Defendant.
Ex.P16 The original Letter dated 27.08.1993 sent by the Plaintiff to
Defendant.
Ex.P17 The original Letter dated 08.11.1993 sent by the Defendant to
Plaintiff.
Ex.P18 The office copy of Letter dated 12.01.1998 sent by the Plaintiff to
Defendant.
Ex.P19 The office copy of Letter dated 13.04.1998 sent by the Plaintiff to
Defendant.
Ex.P20 The office copy of Letter dated 13.04.1998 sent by the Plaintiff to
Defendant.
Ex.P21 The office copy of Letter dated 09.07.1998 sent by the Plaintiff to
Defendant.
Ex.P22 The original Letter dated 06.01.1999 sent by the Defendant to
Plaintiff.
Ex.P23 The original Letter dated 19.01.1999 sent by the Plaintiff to
Defendant.
Ex.P24 The original Letter dated 23.11.1999 sent by the Defendant to
Plaintiff.
Ex.P25 The original Letter dated 15.12.1999 sent by the Plaintiff to
Defendant.
Ex.P26 The copy of Articles of Agreement with Annexures (BBGTPP-
piling) dated 30.05.1994 entered into between the Plaintiff and
Defendant.
(Original is filed by the defendant and hence copy is marked.)
Ex.P27 The office copy of Letter dated 23.03.1994 sent by the Plaintiff to
Defendant.
Ex.P28 The office copy of letter dated 06.04.1994 sent by the Plaintiff to
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Exhibit Description
Nos.
Defendant.
Ex.P29 The office copy of Letter dated 28.07.1994 sent by the Plaintiff to
Defendant.
Ex.P30 The original Letter dated 23.08.1994 sent by the Plaintiff to
Defendant.
Ex.P31 The office copy of Letter dated 10.01.1995 sent by the Plaintiff to
Defendant.
Ex.P32 The office copy of Letter dated 30.03.1995 sent by the Plaintiff to
Defendant.
Ex.P33 The office copy of Letter dated 17.04.1995 sent by the Plaintiff to
Defendant.
Ex.P34 The office copy of Letter dated 31.05.1995 sent by the Defendant
to Plaintiff.
Ex.P35 The office copy of Letter dated 20.07.1995 sent by the Defendant
to Plaintiff.
Ex.P36 The original Letter dated 29.07.1995 sent by the Plaintiff to
Defendant.
Ex.P37 The original Letter dated 07.08.1995 sent by the Plaintiff to
Defendant.
Ex.P38 The office copy of Letter dated 21.09.1994 by the Defendant to
Plaintiff.
Ex.P39 The office copy of Letter dated 08.09.1995 sent by the Plaintiff to
Defendant.
Ex.P40 The original Letter dated 14.09.1994 sent by the Plaintiff to
Defendant.
Ex.P41 The original Letter dated 19.06.1995 sent by the Plaintiff to
Defendant.
Ex.P42 The original Letter dated 11.08.1995 sent by the Plaintiff to
Defendant.
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Exhibit Description
Nos.
Ex.P43 The office copy of Letter dated 22.09.1995 sent by the Plaintiff to
Defendant.
Ex.P44 The original Letter dated 06.10.1997 sent by the Plaintiff to
Defendant.
Ex.P45 The original Letter with Annexures sent by the Plaintiff to
Defendant dated 04.l1.1998.
Ex.P46 The original Draft Bill prepared by the Plaintiff.
Ex.P47 The original Letter dated 16.03.1998 sent by the Plaintiff to
Defendant.
Ex.P48 The original Letter dated 16.04.1999 sent by the Defendant to
Plaintiff.
Ex.P49 The office copy of Letter dated 29.04.1999 sent by the Plaintiff to
Defendant.
Ex.P50 The original Letter dated 15.05.1999 sent by the Defendant to
Plaintiff.
Ex.P51 The office copy of Letter dated 28.06.1999 sent by the Plaintiff to
Defendant.
Ex.P52 The original Letter dated 07.12.1999 sent by the Defendant to
Plaintiff.
Ex.P53 The office copy of Letter dated 26.04.2000 sent by the Defendant
to Plaintiff.
Ex.P54 The office copy of Letter dated 14.06.1994 sent by the Defendant
to Plaintiff.
Ex.P55 The copy of Articles of Agreement with Annexures (BBGTPP-
Civil Work) entered into between the Plaintiff and Defendant in
July 1994.
(Original is filed by the defendant and hence copy is marked.)
Ex.P56 The original Site handing over note by Plaintiff to Defendant
dated 15.06.1994.
Ex.P57 The office copy of letter dated 28.07.1994 sent by the Plaintiff to
Defendant.
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Exhibit Description
Nos.
Ex.P58 The office copy of letter dated 07.09.1994 sent by the Plaintiff to
Defendant.
Ex.P59 The original Letter dated 24.11.1994 sent by the Plaintiff to
Defendant.
Ex.P60 The office copy of Letter dated 01.03.1995 sent by the Plaintiff to
Defendant.
Ex.P61 The original Minutes of Meeting by Plaintiff and Defendant dated
21.09.1994.
Ex.P62 The office copy of Letter dated 05.12.1995 sent by the Plaintiff to
Defendant.
Ex.P63 The office copy of Letter dated 22.02.1996 sent by the Plaintiff to
Defendant.
Ex.P64 The office copy of Letter dated 18.03.1996 sent by the Plaintiff to
Defendant.
Ex.P65 The office copy of Letter dated 27.04.1996 sent by the Plaintiff to
Defendant.
Ex.P66 The office copy of Letter dated 08.07.1996 sent by the Plaintiff to
Defendant.
Ex.P67 The office copy of Letter dated 25.09.1996 sent by the Plaintiff to
Defendant.
Ex.P68 The office copy of letter dated 14.09.1994 sent by the Plaintiff to
Defendant.
Ex.P69 The original Letter dated 11.08.1995 sent by the Plaintiff to
Defendant.
Ex.P70 The office copy of Letter dated 10.02.1996 sent by the Plaintiff to
Defendant.
Ex.P71 The original Letter dated 08.07.1998 sent by the Plaintiff to
Defendant.
Ex.P72 The office copy of Letter dated 03.12.1996 sent by the Plaintiff to
Defendant.
Ex.P73 The original Letter dated 30.09.1997 sent by the Plaintiff to
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Exhibit Description
Nos.
Defendant.
Ex.P74 The original Letter dated 12.09.1995 sent by the Plaintiff to
Defendant.
Ex.P75 The office copy of Letter dated 20.04.1996 sent by the Plaintiff to
Defendant.
Ex.P76 The office copy of Letter dated 31.07.1996 sent by the Plaintiff to
Defendant.
Ex.P77 The original Final Bill dated 08.10.1997 submitted by the
Plaintiff in respect of the Civil and Structural Works at Basin
Bridge Gas Turbine Power Project to the Defendant.
Ex.P78 The original Letter dated 11.11.1999 sent by the Plaintiff to
Defendant.
Ex.P79 The original Letter dated 08.12.1999 sent by the Defendant to
Plaintiff.
Ex.P80 The office copy of Letter dated 28.06.1999 sent by the Plaintiff to
Defendant.
Ex.P81 The office copy of Working Sheet prepared by the Plaintiff in
support of the calculation made in Letter dated 28.06.1999.
Ex.P82 The original Statement of Claims filed by the Plaintiff.
Ex.P83 The original Letter dated 14.03.2000 sent by the Plaintiff to
Defendant.
Ex.P84 The copy of Letter dated 25.05.2000 sent by the Defendant to
Plaintiff.
Ex.P85 The copy of Letter dated 19.05.2000 sent by the Defendant to
Plaintiff.
(Original is filed by the defendant and hence copy is marked.)
Ex.P86 The copy of Letter dated 06.06.2000 sent by the Defendant to
Plaintiff.
Documents exhibited by the Defendant:
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Exhibit Description
Nos.
Ex.D1 The true extract of Defendant Proceeding B.P.No.209, dated
20.5.86.
(Objected. Marked subject to admissibility and proof)
Ex.D2 The original Acceptance letter dated 03.03.1989 for the award of
work sent by Defendant to Plaintiff.
Ex.D3 The original Article of Agreement dated 23.11.1989 entered into
between Defendant and Plaintiff.
Ex.D4 The original Defendant Proceeding B.P. No.5 dated 09.01.1991
to recover mobilisation advance with 18% interest.
Ex.D5 The original letter dated 11.09.1991 Amendment issued to the
original acceptance letter sent by Defendant to Plaintiff.
Ex.D6 The original site handing over copy dated 27.09.1991 signed by
Defendant and Plaintiff.
Ex.D7 The original letter dated 09.01.1992 requesting D.G set sent by
Plaintiff to Defendant.
Ex.D8 The original letter dated 21.09.1992 requesting the extension of
time upto 24.12.92 sent by Plaintiff to Defendant.
Ex.D9 The original letter dated 03.11.1992 requesting the extension of
time upto 31.01.93 sent by Plaintiff to Defendant.
Ex.D10 The original Minutes of Meeting dated 30.01.1993 held between
Defendant and Plaintiff.
Ex.D11 The original letter dated 16.02.1993 for the Extension of time
granted upto 25.03.93 sent by Defendant to Plaintiff.
Ex.D12 The original letter dated 11.03.1993 requesting the extension of
time upto 15.05.1993 sent by Plaintiff to Defendant.
Ex.D13 The original letter dated 30.03.1993 for the Extension of time
granted upto 30.04.93 sent by Defendant to Plaintiff.
Ex.D14 The original letter dated 19.04.1993 requesting to take back the
DG set sent by Plaintiff to Defendant.
Ex.D15 The original letter dated 30.04.1993 requesting the Extension of
time upto 31.05.93 sent by Plaintiff to Defendant.
Ex.D16 The original letter dated 08.11.1993 mentioning the date of
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Exhibit Description
Nos.
completion sent by Defendant to Plaintiff.
Ex.D17 The original Acceptance letter dated 29.11.1993 sent by
Defendant to Plaintiff.
Ex.D18 The original letter dated 10.01.1994 by accepting the Bank
Guarantee sent by Defendant to Plaintiff.
Ex.D19 The office copy dated 23.02.1994 informing the amendment -1
sent by Defendant to Plaintiff.
Ex.D20 The office copy dated 09.03.1994 informing the progress review
sent by Defendant to Plaintiff.
Ex.D21 The office copy dated 19.03.1994 issuing clarification to the
amendment -1 sent by Defendant to Plaintiff.
Ex.D22 The original letter dated 23.03.1994 informing the delay in
progress of work sent by Defendant to Plaintiff.
Ex.D23 The original letter dated 13.04.1994 informing the delay in work
sent by Defendant to Plaintiff.
Ex.D24 The original letter dated 19.04.1994 requesting to furnish the
programme of work sent by Defendant to Plaintiff.
Ex.D25 The original acceptance letter dated 25.05.1994 sent by
Defendant to Plaintiff.
Ex.D26 The original Article of Agreement and Instruction to Bidders
dated 30.05.1994 entered into between Defendant and Plaintiff.
Ex.D27 The original Article of Agreement for Civil and Structural work
entered into between Defendant and Plaintiff.
Ex.D28 The original letter dated 22.08.1994 informing the slow progress
of work sent by Defendant to Plaintiff.
Ex.D29 The original letter dt. 25.08.1994 enclosing the abstract of 591st
Meeting held on 08.08.1994 by Defendant's correspondences.
Ex.D30 The original letter dated 31.08.1994 sent by Defendant to
Plaintiff.
Ex.D31 The original letter dated 03.09.1994 sent by Defendant to
Plaintiff.
Ex.D32 The original letter dated 30.09.1994 sent by Defendant to
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Exhibit Description
Nos.
Plaintiff.
Ex.D33 The office copy dated 01.10.1994 sent by Defendant's
correspondences.
Ex.D34 The original letter dated 14.10.1994 sent by Defendant to
Plaintiff.
Ex.D35 The office copy dated 03.12.1994 sent by Defendant to Plaintiff.
Ex.D36 The office copy dated 08.12.1994 sent by Defendant to Plaintiff.
Ex.D37 The original letter dated 18.01.1995 sent by Plaintiff to
Defendant.
Ex.D38 The office copy dated 14.02.1995 sent by Defendant to Plaintiff.
Ex.D39 The office FAX message copy dated l8.02.1995 sent by
Defendant to Plaintiff.
Ex.D40 The original FAX dated 22.02.1995 sent by Plaintiff to
Defendant.
Ex.D41 The office copy dated 28.02.1995 sent by Defendant to Plaintiff.
Ex.D42 The original letter dated 01.03.1995 sent by Defendant to
Plaintiff.
Ex.D43 The original FAX dated 02.03.1995 sent by Defendant to
Plaintiff.
Ex.D44 The original letter dated 06.03.1995 sent by Defendant to
Plaintiff.
Ex.D45 The office copy dated 13.03.1995 sent by Defendant to Plaintiff.
Ex.D46 The office copy dated 20.03.1995 sent by Defendant to Plaintiff.
Ex.D47 The office copy dated 24.03.1995 sent by Defendant to Plaintiff.
Ex.D48 The original letter dated 05.04.1995 sent by Defendant to
Plaintiff.
Ex.D49 The original letter dated 24.04.1995 sent by Defendant to
Plaintiff.
Ex.D50 The original letter dated 25.04.1995 sent by Defendant to
Plaintiff.
Ex.D51 The original letter dated 31.05.1995 sent by Defendant to
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Exhibit Description
Nos.
Plaintiff.
Ex.D52 The original letter dated 12.06.1995 sent by Plaintiff to
Defendant.
Ex.D53 The original letter dated 20.07.1995 sent by Defendant to
Plaintiff.
Ex.D54 The office copy dated 25.07.1995 sent by Defendant to Plaintiff.
Ex.D55 The original letter dated 20.09.1995 sent by Defendant to
Plaintiff.
Ex.D56 The office copy dated 06.03.1996 sent by Defendant to Plaintiff.
Ex.D57 The office copy dated 20.08.1996 sent by Defendant to Plaintiff.
Ex.D58 The original letter dated 21.08.1996 sent by Defendant to
Plaintiff.
Ex.D59 The office copy dated 11.04.1997 sent by Defendant to Plaintiff.
Ex.D60 The office copy dated 23.04.1997 sent by Defendant to Plaintiff.
Ex.D61 The original letter dated 10.06.1997 sent by Defendant to
Plaintiff.
Ex.D62 The original letter dated 10.06.1997 sent by Defendant to
Plaintiff.
Ex.D63 The original letter dated 13.06.1997 sent by Defendant to
Plaintiff.
Ex.D64 The office copy dated 24.06.1997 sent by Defendant to Plaintiff.
Ex.D65 The office copy dated 02.07.1997 sent by Defendant to Plaintiff.
Ex.D66 The original letter dated 07.07.1997 sent by Plaintiff to
Defendant.
Ex.D67 The original letter dated 11.07.1997 sent by Plaintiff to
Defendant.
Ex.D68 The original letter dated 30.06.1998/04.07.1998 sent by
Defendant to Plaintiff.
Ex.D69 The original letter dated 09.07.1998 sent by Plaintiff to
Defendant.
Ex.D70 The office copy dated 31.07.1998 sent by Defendant to Plaintiff.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/10/2025 10:20:46 pm )
Exhibit Description
Nos.
Ex.D71 The office copy dated 14.09.1998 sent by Defendant to Plaintiff.
Ex.D72 The original letter dated 26.09.1998 sent by Plaintiff to
Defendant.
Ex.D73 The office copy dated 17.10.1998 sent by Defendant to Plaintiff.
Ex.D74 The office copy dated 30.12.1998 sent by Defendant to Plaintiff.
Ex.D75 The office copy dated 06.01.1999 sent by Defendant to Plaintiff.
Ex.D76 The original letter dated 19.01.1999 sent by Plaintiff to
Defendant.
Ex.D77 The office copy dated 06.03.1999 sent by Defendant to Plaintiff.
Ex.D78 The original letter dated 17.03.1999 sent by Defendant to
Plaintiff.
Ex.D79 The office copy dated 24.03.1999 sent by Defendant to Plaintiff.
Ex.D80 The original letter dated 16.04.1999 sent by Defendant to
Plaintiff.
Ex.D81 The original letter dated 17.05.1999 sent by Plaintiff to
Defendant.
Ex.D82 The office copy dated 03.10.1999 sent by Defendant to Plaintiff.
Ex.D83 The original letter dated 11.11.1999 sent by Plaintiff to
Defendant.
Ex.D84 The original letter dated 13.11.1999 sent by Defendant to
Plaintiff.
Ex.D85 The office copy dated 22.11.1999 sent by Defendant to Plaintiff.
Ex.D86 The original letter dated 07.12.1999 sent by Defendant to
Plaintiff.
Ex.D87 The photo copy of letter dated 23.12.1999 sent by Plaintiff to
Defendant.
(Objected. Marked subject to admissibility and proof)
Ex.D88 The office copy dated 26.04.2000 sent by Defendant to Plaintiff.
Ex.D89 The original letter dated 19.05.2000 sent by Defendant to
Plaintiff.
Ex.D90 The original letter dated 06.06.2000 sent by Defendant to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/10/2025 10:20:46 pm )
Exhibit Description
Nos.
Plaintiff.
Ex.D91 The original letter dated 07.06.2000 sent by Defendant to Bank.
Ex.D92 The original letter dated 07.06.2000 sent by Defendant to Bank.
Ex.D93 The original letter dated 07.06.2000 sent by Defendant to Bank.
Ex.D94 The original letter dated 13.06.2000 sent by Bank to Defendant.
Ex.D95 The original letter dated 13.06.2000 sent by Bank to Defendant.
Ex.D96 The original letter dated 07.07.2000 sent by Bank to Defendant.
Ex.D97 The original letter dated 07.07.2000 sent by Bank to Defendant.
24.10.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/10/2025 10:20:46 pm )
SENTHILKUMAR RAMAMOORTHY, J.
Kj
Pre-delivery Judgment made in
25.10.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/10/2025 10:20:46 pm )
