Florida Constructions (P) Ltd. Represented by its Director Mr.Subash Chandra Bose vs The Banyan Rep. by its Director

1.,P-1,02.01.2014,Original Board resolution

2.,P-2,14.03.2006,Office copy of the quotation

3.,P-3,07.04.2006,Office copy work order issued by the defendant company to the plaintiff company

4.,P-4,27.03.2009,Copy of final bill Certification for payment raised by the plaintiff

5,P-5,25.04.2011,Office copy of the legal notice with acknowledgment sent by the plaintiff''s counsel to the defendant

6,P-6,11.01.2008,E-mail issued by the architect and the said E-mail along with the statement

7,P-7,-,Communication series

The learned counsel for the plaintiff company submitted that pursuant to the work order dated 07.4.2006, the plaintiff company had constructed",,,

10 cottages as per the drawings prepared by the Architect of the defendant Institution and handed over the project to the defendant institution and,,,

raised a final bill on 23.08.2007, which was also certified by the Architect of the defendant institution. The learned counsel for the plaintiff company",,,

further submitted that the suit is filed within a period of three years from the date of raising the final bill. The amount quoted in the final bill was,,,

admitted by the defendant institution. Though the defendant institution had taken the defence that the suit is barred by limitation and that, there were",,,

defects in construction work, the same has not been properly established by them. The defendant institution also failed to pay the amount. All the",,,

correspondence between the plaintiff company and the defendant institution have clearly established the fact that the defendant institution is liable to,,,

pay the amount.,,,

It is submitted by the learned counsel for the plaintiff company that the final bill amount has not been disputed by the defendant institution in the,,,

written statement filed by them. It is further submitted that Ex.D1, clearly shows that all the pending works were completed by the plaintiff",,,

company within the defect liability period, as agreed between the parties in the work order. Ex.P6 would prove the same. Therefore, it is submitted",,,

by the learned counsel that the contention of the defendant institution that they have done the repair work by engaging some other company cannot,,,

be countenanced. Hence, the learned counsel prayed for judgment and decree.",,,

Countering the arguments advanced by the learned counsel for the plaintiff company, the learned counsel for the defendant institution submitted",,,

that Ex.P4 is only a copy and it is not admitted by the defendant institution and that the building was completed only on 23.8.2007 whereas instant,,,

suit has been filed on 26.3.2009, which is barred by limitation. The learned counsel for the defendant institution further contended that the",,,

correspondence between the parties did not contain any defect liability period as alleged by the plaintiff company. Hence, the learned counsel for",,,

the defendant institution prayed for dismissal of the suit.,,,

In the light of the above submissions, now the issue has to be analysed one by one:",,,

Issue Nos: 1 to 4:,,,

It is admitted by both sides that under Ex.P2 and P3, the quotation work orders, the plaintiff company was given a contract for construction of",,,

the cottages. Ex.P2 is the quotation for sum of Rs.80,51,252/- given by the plaintiff company to the defendant Architect and Ex.P3 is the original",,,

work order given by the defendant institution for construction of ten cottages in Thiruvidanthai Village, Kovalam Panchayat, Kanchipuram District.",,,

The above facts clearly indicate that the time period agreed to between the parties has been waived by themselves. Further, terms and conditions",,,

of the work order clearly show that 5% of the bill value shall be deducted from each R/A bill, towards retention money. It is also agreed between",,,

the parties that retention money shall be restored to the contractor free of interest at the expiry of the defects liability period. Though Ex.P3 original,,,

work order, was given for a sum of Rs.69,97,052.76 p, one of the conditions stipulated in the work order clearly shows that if item not included in",,,

the tender, but executed as per the directions of the architects/employers, the same shall be deemed as extra items.",,,

From the terms of the aforementioned work order, it could be seen that retention money shall be deducted by the defendants in the final bill",,,

and that, the same shall be paid after the expiry of the defects liability period. The defect liability period provided in the work order was 12",,,

months. It is admitted by both sides that work was completed on 23.8.2007. Though it is the contention of the defendant institution that the work,,,

has not been properly completed by the plaintiff company, when Ex.P6 communication sent by the defendant''s Architect to the plaintiff company is",,,

perused, it is very clear that all the defects pointed out by the defendant''s Architect under Ex.D1 was completed by the plaintiff company. In",,,

Ex.D1 dated 09.12.2007, the defendant''s Architect has pointed out some pending work in respect of the entire constructions. In the said email",,,

correspondence, the defendant institution has clearly stated that as on 19.12.2007, some pending work to be carried out by the plaintiff company.",,,

Thereafter, via email dated 11.1.2008, the defendant''s architect has admitted that all the pending works were completed by the plaintiff company",,,

as pointed out by them.,,,

In view of the above admission, the contention of the defendant institution that the money has not been paid by them, as they engaged some",,,

other contractor to rectify the defects and that, the amount has been adjusted towards such rectification work, cannot be countenanced at all.",,,

Ex.P6 clearly shows that the defects pointed out by the defendant''s architect has been attended to by the plaintiff company within 5 months from,,,

the date of handing over the entire building to the defendant, though in the contract the defect liability period was fixed as 12 months.",,,

It is not the case of the defendant institution that they are not liable to pay the sum of Rs.18,49,220/- as claimed by the plaintiff company",,,

towards final bill. In Para 6 of the written statement, the defendant Institution has categorically admitted that the final amount was fixed at the rate",,,

of Rs. 18,49,220/-. It is further stated in the written statement that before settlement and even before the payment could be made, the monsoon",,,

had set in and showed the inadequate and defective construction with rain water seeping inside the building from the roof, cupboards, doors and",,,

windows and since the plaintiff company failed to carry out the repair work, they engaged the services of M/s. Tata Reality Infrastructure Limited.",,,

Even though such a statement has been made in the written statement, D.W.1, in his evidence, has stated that he is not able to say as to when the",,,

monsoon set and whether it was 2007-2008. Whereas Ex.P6 clearly shows that in the month of January 2008, all the defects pointed out by the",,,

defendant institution has been attended to by the plaintiff company. Therefore, the contention of the defendant institution that they have carried out",,,

the repairs cannot be accepted.,,,

Moreso, the defendant institution had relied upon a certificate issued by M/s. Tata Reality Infrastructure Limited to show that they incurred",,,

expenditure towards rectification work. When Ex.D6, certificate issued by the TRIL Infopark Limited, is perused, it is seen that the said Firm is no",,,

way connected with the Tata Reality Infrastructure Limited. In any event, the said certificate cannot be given any credence when author of the",,,

same has not been examined before the Court. Further, Ex.D6 also clearly show that the said Info Park Limited has carried out some infrastructure",,,

works in the building in question, like Elevation of the Campus and other works in the year 2012 to 2013 i.e., after five years from the date of",,,

completion of the building by the plaintiff company. Therefore, the work mentioned in Ex.D6, certificate, itself falsified the contention of the",,,

defendant institution that they carried out the defects after handing over the building by the plaintiff company in the year 2007. From the above,,,

document, it could be easily inferred that the contention of the defendant institution cannot be countenanced at all. In this regard, when the evidence",,,

of DW1 is carefully analysed, it is seen that D.W.1, also admitted in evidence that the defects pointed out by the defendant''s Architect, has been",,,

attended to properly and the same has been completed by the plaintiff company.,,,

Even though an attempt has been made by the defendant institution to the effect that they made excess payments under D3 and D4, the said",,,

plea has not been taken by the defendant institution in the written statement and for the first time the same has been introduced in D.W.1''s,,,

evidence. Exs.D3 and D4, so called Bank statements also cannot be given any credence as the same have not been certified under Banker Book",,,

Evidence Act. Further, no one has been examined to prove the so called alleged excess payment made by them. In any event, it is the not the case",,,

of the defendant institution in the written statement that they paid excess amount. Therefore, in the absence of any pleadings in the written",,,

statement, mere evidence would not serve any purpose.",,,

Yet another contention of the defendant institution is that the suit is barred by limitation. To be noted that it is the specific contention of the,,,

plaintiff company that they raised the final bill under Ex.P4. Ex.P4 is the copy of the final bill. In this regard, when the cross examination of P.W.1",,,

is carefully analysed, it is seen that he has not denied Ex.P4 in entirety. In fact, a suggestion was put to P.W.1 to the effect that a sum of",,,

Rs.18,49,220/- is arrived at based on Ex.P4 and the same has been admitted by him. It is the contention of the plaintiff company that Ex.P4 was",,,

certified by the defendant''s Architect and the original has already been sent to the defendant institution and the copy alone was retained by the,,,

plaintiff company. Hence, it is the contention of the plaintiff company that they marked the said copy before this Court. Therefore when the person",,,

has given sufficient explanation for non production of original, there is no bar for marking a copy of the said document, more particularly, when",,,

there is an admission by D.W.1 in the cross examination that the amount admitted by the institution in the written statement is based on Ex.P4.,,,

Therefore, mere non production of the original document, when the same is admitted by the defendant institution, cannot be a ground to non suit",,,

the plaint.,,,

As already stated above, in the written statement, the defendant institution has clearly admitted that a sum of Rs.18,49,220/- is due and",,,

payable to the plaintiff company and the same was also certified by their Architect, viz., M/s. Varsha and Pradeep. Though the retention amount",,,

has been written in pencil, the same has not been disputed by the plaintiff company either in written statement or in the cross examination of P.W.1.",,,

Further, Ex.P7, exchange of various correspondence between the plaintiff company and the defendant institution shows that a sum of",,,

Rs.18,49,220/- claimed by the plaintiff company towards final due and that the same has not been denied by the defendant institution. In view of",,,

the specific admission made by the defendant institution with regard to the payment of due amount of Rs.18,49,220/- in the written statement as",,,

well as the suggestion put to P.W.1 and admission of D.W.1, this Court holds that the plaintiff company have established their case for recovery of",,,

the said amount. Therefore, the plaintiff company are, certainly, entitled to the aforementioned amount.",,,

It is the contention of the learned counsel appearing for the defendant institution that the building was handed over on 23.08.2007 but the suit,,,

has been filed only on 26.3.2012 and hence, the same is barred by limitation. It is not in dispute that the final bill dated 27.3.2009 was raised by",,,

the plaintiff company. It is also not in dispute that as per Ex.P4, work order, retention amount shall be paid by the defendant institution on the",,,

expiry of the defect liability period. Though the defect liability period gets over on 22.8.2008, the due amount has not been paid by the defendant",,,

institution within the said period. In any event, it is the case of the plaintiff company that final bill including the retention amount was raised only on",,,

27.3.2009 and that the suit has been filed on 26.3.2012, i.e. within the period of three years.",,,

It is to be noted that Final bill was raised by the plaintiff company, including all the retention amount, only on 27.3.2009. Even thereafter, the",,,

amount has not been paid by the defendant institution. Further, the receipt of the final bill is not in dispute. Therefore, non-payment of the alleged",,,

dues, from the date when the final bill was sent by the plaintiff company itself will raise cause of action for filing the present suit for recovery of",,,

money. In this context, it is useful to refer the judgment of the Hon`ble Apex Court reported in 1988 SC 1007 (MAJOR (Retd.,) v. INDER",,,

SINGH REKHI) , wherein the Hon`ble Apex Court has held as follows:",,,

.. .. .. It is true that on completion of the work a right to get payment would normally arise but where the final bills as in this case have",,,

not been prepared as appears from the record and when the assertion of the claim was made on 28 th February, 1983 and there was",,,

non- payment, the cause of action arose from that date, that is to say, 28 th of February, 1983. It is also true that a party cannot",,,

postpone the accrual of cause of action by writing reminders or sending reminders but where the bill had not been finally prepared,",,,

the claim made by a claimant is the accrual of the cause of action. A dispute arises where there is a claim and a denial and repudiation,,,

of the claim. .. .. ..""",,,

It is also useful to refer the judgment reported in (MYSORE MINERALS LIMITED V. TAMTAM PEDDA GURUVA REDDY), wherein",,,

the High Court of Karnataka by following the judgment of the Delhi High Court reported in (1987) 2 ALR 73 (RAM DITTA MAL v. FOOD,,,

CORPORATION) has held that the period of limitation will not start running from the date of completion of work or the non- payment of running,,,

bills. The cause of action will arise only after the respondent intimated about the preparation of the final bill or his having accepted the payment.,,,

Similarly, in the judgment reported in (THE BOMBAY DYEING AND MA-NUFACTURING CO.LTD., vs. I.R.ENTERPRISES), the",,,

High Court of Bombay has held as follows:,,,

.. .. .. A perusal of the impugned Award indicates that the learned Arbitrator has rendered a finding that an amount of Rs.9,15,603/-",,,

which was deducted towards five percent retention money would be payable only after completion of work and not before. It is held,,,

that the cause of action for claiming the amount deducted towards the retention money could arise only after the work had been,,,

completed. It is further held that further part,,,

payment was made by the petitioner to the respondent on 31 st March 2008 whereas the Arbitration Agreement was invoked on 29,,,

th March 2011 and thus, claim was within the period of limitation. .. .. .. "".",,,

Having regard to the above judgments and also considering the oral and documentary evidence adduced on both sides, this Court is of the",,,

view that the contention of the defendant institution that the suit is barred by limitation cannot be sustained. The suit has been filed by the plaintiff,,,

company on 26.3.2012 i.e., within three years from the date of final bill, i.e. 27.3.2009, prepared by the plaintiff company. Therefore, this Court",,,

holds that the suit is well within the period of limitation.,,,

As already stated above, the plaintiff company are entitled to the amount towards the final Bill dated 27.3.2009 i.e. Rs.18,49,220/- with",,,

interest as claimed by them, since it was a commercial transaction and thereafter at 6% on the principle from the date of the suit till the date of",,,

realisation. These issues are answered accordingly.,,,

In the result the suit is decreed on the above terms with costs.,,,