M/S Kashyapi Infrastructure Pvt Ltd v. National Buildings Construction Corporation Limited & Anr

RAJIV SAHAI ENDLAW, J. NOVEMBER 01, 2019/'AA' (corrected & released on 13th November, 2019)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 1st November, 2019. + KASHYAPI INFRASTRUCTURE PVT LTD ..... Plaintiff Through: Mr. Sanjeev Agarwal & Mr. Ekansh Agarwal, Advocates. Versus NATIONAL BUILDINGS CONSTRUCTION CORPORATION LIMITED & ANR ..... Defendants Through: Mr. Aditya Parolia & Mr. Akshay Srivastava, Advocates for D-1 with Mr. Anurag Singhal (Engineer Incharge). CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. On 16th September, 2019, the following order was passed :- "1. The plaintiff has instituted this suit for recovery of a principal amount of Rs.3,43,43,650/- and interest till the date of institution of suit of Rs.76,74,251/- from the defendant no.1 National Building Construction Corporation (NBCC) along with pendent lite and future interest. The Commissioner of Income Tax has been impleaded as defendant No.2 though no relief has been claimed against it. 2. The suit was entertained and the defendant no.1 NBCC filed its written statement and to which replication was filed by the plaintiff. 3. The defendant no.2 Commissioner of Income Tax against which, in any case, no relief was claimed, did not appear and vide order dated 21st July, 2017 was proceeded against ex parte. 4. On the pleadings of the plaintiff and the defendant no.1, on 21st July, 2017 the following issues were framed:- "i. Whether in terms of the Memorandum of Understanding between the defendant No.1 and defendant No.2, defendant No.1 is merely an executing agency and not liable to pay to the plaintiff? OPD(1) ii. Whether the plaintiff is entitled to a decree for a sum of ₹4,20,17,901/- against the defendant No.1 along with the interest as per contract dated 3rd September, 2011? OPP. iii. Whether amounts payable to the plaintiff for the works under the contract can be recovered from defendant No.2 directly by the plaintiff? OPD(1) iv. Relief." and the parties relegated to evidence. 5. The plaintiff examined two witnesses and the defendant no.1 examined only one witness and the evidence closed. 6. The suit, ripe for final hearing came up before this Court on 18th December, 2018 and on which date as well as on subsequent dates adjournments were sought on behalf of the counsel for the defendant no.1. Ultimately, the order dated 1st August, 2019 reprimanding the defendant no.1 was passed, which has resulted in the counsel for the defendant no.1 today appearing before this court. 7. The counsel for the defendant no.1, at the outset, states (i) that the defendant no.1, on behalf of defendant no.2, had engaged the plaintiff as a contractor for certain civil works of construction to be carried out for the defendant no.2 and the plaintiff has instituted this suit for recovery of the balance amount due with respect thereto; (ii) that the counsel for the defendant no.1 now on studying the matter has realized that the defendant no.1 was to make payments to the plaintiff only on receipt of payment from the defendant no.2; attention in this respect is invited to Clause 37.3 forming part of Clause 37 of the General Conditions of Contract between the plaintiff and the defendant no.1 and which Clause 37 is as under:- "37.0 PAYMENTS 37.1 The bill shall be submitted by contractor each month on or before the date fixed by the Engineer-in- Charge for all works executed in previous months. The contractor shall prepare computerized bills using the program as approved by Engineer-in-Charge as per prescribed format/pro-forma. The Contractor shall submit five numbers of hard copies and one soft copy of floppy/CD for all bills. Subject to clause 37.3 herein below, the payment due to the contractor shall be made within fifteen days of getting the measurements verified from the Engineer-in-Charge or his subordinate/representative and certification of bill by the Engineer-in-Charge 37.2 All running payments shall be regarded as payments by way of advance against the final payment only and not as payments for work actually done and completed and/or accepted by NB