1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2162 OF 1983 Reliable Construction Co. ...Plaintiffs Vs. The Simplex Mills Co. Ltd. ...Defendants Mr.D.B.Sawant for Plaintiffs Mr. F.Dubash i/b. Mulla & Mulla C & B of Defendants CORAM: SMT.ROSHAN DALVI, J. DATED: 30TH JUNE, 2008 JUDGMENT (Per Smt. Roshan Dalvi, J.) 1. The Plaintiffs carry on business of repairing, painting and other construction work of the Defendant Mills at Bombay and Akola under various contracts represented by tenders submitted by the Plaintiffs and accepted by the Defendants from time to time. The price for the work done is fixed in the tender and upon appreciation of prices of raw- materials like paint, building materials etc., the prices payable to the Plaintiffs came to be altered and raised from time to time. There have been three tenders between the parties between 1974 and 1980 dated 1.4.1974, 1.7.1977 and 19.9.1980 Exhibits-E,B & 2 respectively. 2 2. The parties have admitted their contracts under the aforesaid three tenders. The suit contract relates to the tender dated 1.7.1977 Exhibit-B in evidence. 3. It is, however, the Plaintiffs case that after the prices for the services to be rendered by the Plaintiffs came to be contracted and settled in the tender Exhibit-B, the prices of the products were raised, constraining the Plaintiffs to require the Defendants to pay additional amount to the Plaintiffs. It is their case that in April-May, 1979 it was orally agreed between the Plaintiffs' partner one Lalchand Mehta, the Defendants' Director one Mr. N.S. Damani to raise the rate for building materials and labour charges by 50%. Such an oral novatio as claimed by the Plaintiffs is denied by the Defendants. 4. The Plaintiffs relied upon the correspondence between the parties that admittedly took place containing letters dated 27.12.1977, 28.6.1980 and 27.5.1981 Exhibits C,D & H respectively. 5. As per the contract between the parties, the Plaintiffs admittedly carried out the work of painting, repairing and 3 other building construction after 1.7.1977. The Plaintiffs submitted their bills upon the Defendants from time to time. The Defendants made on account payments from time to time. There is no dispute between the parties for bills submitted and payments made till July, 1979. Between July, 1979 and June, 1980 the Plaintiffs admittedly submitted 26 bills Exhibit-F (colly) . The Defendants admit receipt of the bills and have made on account payments thereon. The Defendants however, do not admit the extent of amount claimed by the Plaintiffs under these bills. These bills are made out not based upon the tender dated 1.7.1977 then in force, but upon the increased amount contended to be orally agreed to be paid in the meeting of Mehta and Damani on behalf of the parties. 6. It is the Defendants' contention that the Plaintiffs did request a higher price. The Defendants did agree to a higher price, but not at the flat rate of 50%, more as contended by the Plaintiffs in paragraph 2 of the plaint. It is the Defendants case that the parties agreed to raise the amount in the bills for various items separately. Consequently, in 18 out of the aforesaid 26 bills Exhibit-F (colly), another partner of the Plaintiffs one Razak Solanki and the Director of the Defendants made out slips of paper showing separate item- 4 wise increase in separate and distinct items in the bills of the Plaintiffs Exhibit-F (colly) . In 18, out of those 26 bills drawn by the Plaintiffs on the Defendants and received by the Defendants shown as Exhibit-1 (colly) in evidence, the slips of papers showing the item-wise increase of papers and agreed between the parties came to be pasted. The Defendants contend that they were to make payments at the increased rate as shown in these slips. They contend that they have, in fact made advance payments on account from time to time. 7. There are further 11 bills drawn by the Plaintiffs upon the Defendants dated 30th June, 1980 Exhibit-G (colly) . Thereafter, there are further 12 bills similarly drawn by the Plaintiffs upon the Defendants for the period between July, 1980 and December, 1980 Exhibit-I (colly) . The contentions of the parties with regard to these bills is similar. The averments in paragraph 7 of the plaint show that the bills Exhibit-I(colly) were reflecting a 80% increase in the prices from the tender price than prevailing. The averments in paragraph 5 of the plaint show an oral agreement between the parties to increase the prices by a flat rate of 80%. Hence, the 12 bills for the period between July, 1980 and December, 1980 Exhibit-I(colly) show an increase 5 accordingly. 8. Consequently, it is seen that the receipt of the bills is admitted, but the amount claimed is not. The increase in the prices is admitted, but the extent claimed is not. The Plaintiffs case for increase of prices is based upon the oral agreement between the parties recited in paragraph 2 of the plaint. The Defendants' case of increase in price is based upon the written agreement between the parties, documented in the slips of paper showing item-wise increase in the prices of the specific bills stated to be written in the handwriting of the partner of the Plaintiffs. The fact that bills are made out and signed by the partner of the Plaintiffs, who accordingly acted on behalf of the firm is admitted in the cross examination of the plaintiffs. 9. The payment by the Defendants on account from time to time are admitted and set out in the plaint itself. Consequently, in paragraph 6 of the plaint Rs.13,40,000/- is shown to be received against the total bills of Rs.15,46,191.79 leaving a balance of Rs.2,06,191.79. 10. The averments in paragraph 7 of the plaint, show further part payment of Rs.5,35,000/- from the amount of 6 Rs.5,61,740.21 raised on the 12 bills Exhibit-I(colly) to the plaint, leaving a balance of Rs.26,740.21. 11. The Plaintiffs have claimed the deduction of TDS under Section 19(c) of the Income Tax Act and claimed the net balance thereon of Rs.15,505.41. 12. The Plaintiffs have further made a claim that during the contract 1800 cement bags of the Plaintiffs remained lying in the godown of the Defendants, which were not returned when the contract was terminated. The Plaintiffs claim Rs.2,43,000/- as value of the cement bags and added the same to their claim of Rs.15,505.41 making a claim of Rs.2,58,505.41 for the bills, for the period between July, 1980 and December, 1980 and Rs.1,73,175.02 as a balance amount due and payable after giving credit for the part payment receipts from the Defendants for the period between July, 1979 and June,1980. Consequently, the total principal amount claimed by the Plaintiffs is Rs.4,31,680.44. The Plaintiffs claim interest @ 12% p.a thereon. 13. Hence, if the Plaintiffs oral agreement is believed, the total amount payable on the Plaintiffs bills admittedly received by the Defendants will be 50% more than the tender 7 amount for the period between 1.7.1979 and 30.6.1980 and 80% more than the tender amount for the bills between July, 1980 to December, 1980. 14. It is for the Plaintiff to prove these oral agreements set out in paragraphs 2 and 7 of the plaint. 15. It is further contended by the Plaintiffs that the Defendants made a dishonest claim of Rs.1,93,970.60 in their Attorney's letter dated 2.12.1981 and augmented that claim to Rs.3,15,610.35 in their subsequent Attorney' s letter dated 5.12.1981. 16. The Defendants' defence in their written statement, as aforesaid, is of the increase in price, albeit item-wise, as set out in the slips of paper pasted to the Plaintiffs bills. 17. The Defendants claim that they had made on account payments from time to time to the Plaintiffs as set out in paragraphs 6 and 7 of the plaint and thereby they have overpaid the Plaintiffs. The Defendants have accordingly counter claimed for recovery of the overpaid amount, demanded by them in the aforesaid Attorney' s letter, which the Plaintiffs contend as a dishonest claim. Upon the 8 pleadings between the parties issues came to be framed by Justice S.K. Shah, as he then was, on 19.3.2004. The Issues are set out and answered accordingly. ISSUES 1. Whether the Plaintiff’s claim or any part thereof is barred by the law of limitation? No 2. Whether it is proved that in April-May 1979 the Defendant agreed to an increase at the flat rate of 50% as stated in paragraph 2 of the plaint and if so for what period? No 3. Whether it is proved that pursuant to the Plaintiff’s letter dated 28th June, 1980 the Defendant agreed to any increase in the original tender rates, and if so, to what extent and for what period? No 4. Whether it is proved that the Plaintiff is entitled to the amounts, if any, as stated in their statement of claim annexed at page 41 to the plaint? No 5. Whether it is proved that the Defendant is entitled to the amounts, if any, as stated in their statement annexed at page 5 to the Written Statement and counter-claim? Not answered 6. What reliefs, if any ? As per final order 9 18. Upon considering the oral and documentary evidence of the Plaintiffs and upon hearing the Advocates of the parties, it came to pass that the issue relating to the bar of limitation of the counter claim of the Defendants has not been framed. That issue needs to be added under the provisions of Order XIV Rule 4 of the Civil Procedure Code. It is framed as follows :- Whether the counter claim is barred by the Law of Limitation ? Yes 19. The parties have shown the aforesaid tenders Exhibits- E,B and 2 in evidence. The parties rely upon the letters Exhibits-C,D & H. Both the Advocates have drawn my particular attention to specific aspects in these letters. The oral agreement alleged by the Plaintiffs would have to be considered alongside, and after appreciating the Plaintiffs letters Exhibit-C,D & H for increase in prices and reflecting how the parties acted upon their agreement for increase in prices. 20. The extent of the bills of the Plaintiffs as modified by the slips produced by the Defendants would have to be considered alongside the oral evidence of the parties with 10 regard to the execution of the bills as well as the slips. 21. Issue No.1:- The suit is filed with regard to several bills issued from time to time by the Plaintiffs upon the Defendants and after giving credit for several part payments thereon from time to time. The last of the part payments is made on 27.12.1980. The Suit is filed on 19.9.1983. The Suit is within time. Hence, Issue No.1 is answered in the negative. 22. Issue No.2:- The relevant tender governing the parties for the period of the suit contract is the tender dated 1.7.1977 Exhibit-B in the evidence. The Plaintiff has claimed 50% more on such tender prices for the bills raised upon the Defendants between July, 1979 to June, 1980 under an oral agreement arrived at between the partner of Plaintiffs Mr. Mehta and the Director of the Defendants Mr. Damani in April-May, 1979. Such oral contract would constitute a novatio between the parties, if agreed upon, by them or proved by the Plaintiffs. The oral agreement is set out in paragraph 2 of the plaint, which runs thus:- “In or about April-May, 1979, it was agreed between the Plaintiffs through their 11 partner Shri Lalchand K. Mehta on the one hand and Shri N.S. Damani, Director of the Defendants on the other that in view of the increase in costs of building materials and labour charges an increase at the flat rate of 50% will be given by the Defendants to the Plaintiffs. In this connection, the Plaintiffs crave leave to refer to any rely on a copy of the Plaintiffs’ letter dated 21st December, 1977 addressed to the Defendants, when produced” 23. It is Plaintiffs’ claim that this oral agreement is evidenced in the Plaintiff’s letter dated 27.12.1977 (wrongly typed as 21.12.1977 in paragraph 2 of the plaint). The letter is marked Exhibit-C in evidence by consent. 24. The Defendants have denied the 50% increase in the rates as claimed by the Plaintiffs in their letter dated 28.6.1980 Exhibit-D in evidence. 25. A further letter has been addressed by the Plaintiffs upon the Defendants on 27.5.1981 sent under certificate of posting on 28.5.1981. That letter is not relied upon by the 12 Plaintiffs in the plaint. It is produced in evidence. Upon such production the Defendants have inspected the letter. The copy of the letter has been marked Exhibit-H (colly) in evidence along with the original postal certificate. 26. These three letters relate to the suit contract and the claim of increase made by the Plaintiffs. It will be material to see and understand each of them. 27. The letter dated 27.12.1977 (para 2 of the plaint) recited in the oral agreement reproduced herein above is the letter relied upon by the Plaintiffs in connection with their oral agreement. It thanks the Defendants for the relationship between the parties and the increase in the rates in 1974 over the rate originally fixed on 1.4.1972 by 40%, despite the Plaintiffs request of an increase by 60%. In December, 1977 (well before the period of the oral agreement of April-May, 1979) the Plaintiffs had approached the Defendants to increase the prices as the prices of raw-materials have gone up in the market. This letter shows the increase claimed by the Plaintiffs more than the tender prices then prevailing, being the tender dated 1.7.1977, Exhibit-D in evidence. Though these letters show the claim of increase in prices, it shows that the claim was made in December, 1977 itself and 13 not as late as in April-May, 1979 as averred in paragraph 2 of plaint and as recited herein above. 28. The Plaintiffs’ further letter dated 28.6.1980 Exhibit-D in evidence is shown to have been sent more than a year after aforesaid oral agreement. In that letter the Plaintiffs have mentioned that they were constrained to revise their rates for civil construction work as well as for painting work. They have made agreements with since 1.7.1977, the date of the tender. The rates were not revised, although the costs for all items being cement, sand, paint, bricks, wires, steel as also the wages of the labourers has risen. The paragraphs of those letters show that the Plaintiffs would be obliged if they would increase the existing rates by 90% to 95% for civil construction job and 60% to 65% for painting work to enable the Plaintiffs to raise the bills on the revised rates for the work carried out from 1.1.1980 onwards. 29. A reading of the letter dated 28.6.1980 shows the increase claimed for the first time since the tender dated 1.7.1977. The increase is claimed from 1.1.1980. The percentage increase claimed is not 50% or 80% for the bills for the two periods July, 1979 to June, 1980 and July, 1980 to December, 1980, but separately for construction work and painting work. 14 30. It is, therefore, argued on behalf of the Defendants that the increase claimed by the Plaintiffs in writing for the suit contract by the letter dated 28.6.1980 is contrary to what is stated to be the oral agreement as averred in paragraph 2 of the plaint. It is rightly argued that, had there been any agreement in April-May, 1979, it would have been recited in the letter dated 28.6.1980. Had the parties agreed to increase the rates in April-May, 1979, the Plaintiffs would not have claimed increase in rates in the said letter from 1.1.1980. Conversely if the increase was claimed from 1.1.1980 it would not have been under the agreement for increase in April-May, 1979. The increase of flat rate of 50% in the oral agreement claimed by the Plaintiffs is absent in the letter of the Plaintiffs. What is claimed in the letter of the Plaintiffs written a year thereafter is not as per the alleged oral agreement. 31. With regard to this aspect, the oral evidence of the Plaintiffs’ partner Mr. Mehta requires to be seen. The answer to question No.38 in the cross examination of the said witness shows that the said letter was signed by Mr. Mehta, the same partner who was present at the time of the agreement claimed to have been entered into in April-May, 1979. The answer to question No.99 in his cross 15 examination shows that the increase in flat rate of 50% was agreed between the parties after the letter dated 28.6.1980. That goes directly contrary to the basis of the Plaintiff’s case being the oral agreement entered into in April-May, 1979. Upon being shown the agreements in para 2 of the plaint, the Plaintiffs’ partner deposed that what was stated in paragraph 2 was correct. The answer to question No.123, he again deposed that he did not remember from which date the 50% increase in tender rate was to be effectuated. Further in answer to question No.126, he answered that the increase was to be effectuated from 1.7.1979 as deposed in his affidavit of examination-in-chief. The letter dated 28.6.1980 requires increase from 1.1.1980. The oral evidence of the Plaintiff is of an oral agreement entered into in April-May, 1979. The documentary evidence of the Plaintiffs contained in the letter dated 28.6.1980 is contrary thereto. Documentary evidence excludes the oral evidence under the specific provisions of Section 91 of the Evidence Act. The oral evidence cannot be believed in view of the letter dated 28.6.1980. 32. The averments in paragraph 7 show that for the further bills, in the later period between July, 1980 and December, 1980 it was to be an 80% increase in the prices over the 16 tender prices. When such increase was agreed to has not been stated. It would not have been agreed to, in April-May, 1979 since the bills themselves were drawn from and after July, 1980. 33. The Defendants agree that the prices were increased. That was natural. It is not denied that the prices of raw- materials in the market did not increase. What is to be considered is how much was the agreed increase between the parties. It is the Defendants’ case that the Plaintiffs’ other partner one Razak Solanki, who had drawn the bills of the Plaintiffs discussed with the Defendants the increase in prices. It was agreed to increase the prices item-wise. The original bills received by the Defendants, copies of which were with the Plaintiffs, were considered by the parties. Slips of paper for each of the prices came to be separately agreed upon and made out. These slips are stated to be in the handwriting of the Plaintiffs’ partner, who drew the bills and who discussed the increase with the Defendants’ Director. 34. The answer to question No.67 in the Plaintiffs' partner’s cross examination shows the admission, that the Plaintiffs' partner Mr. Solanki had drawn all the bills. 17 35. In view of such evidence the Plaintiffs’ further letter, not relied upon in the plaint but tendered in evidence and allowed to be used by the Plaintiffs, must be considered. That is the letter dated 27.5.1981, Exhibit-H in evidence. 36. It refers to the earlier letter dated 28.6.1980 (Exhibit-C in evidence) and refers to the rates which were settled in July, 1977 (which was in the tender dated 1.7.1977 Exhibit- B in evidence). The relevant Paragraph 4 of the letter dated 27.5.1981 needs to be recited. It runs thus:- “ We had carried out work for Akola Unit No.2, B & C type quarters. Bills for their works were settled for the period 1.7.79 to 30.6.80 for Rs.16,50687-79 P, and thereafter also agreed also to consider the increase as demanded by us in our letter dt. 28.6.80. That has not been done. Not even that, even agreed amount which was settled has not been paid and a large balance still remains due and payable which has not been paid inspite of my several requests and demands”. 18 37. The aforesaid letter shows no reference to the oral agreement on May-June, 1979. It makes a reference only to the letter dated 28.6.1980 Exhibit-C in evidence. It speaks about the agreement to increase the prices as demanded by the Plaintiffs after the period of the bills July, 1979 to June, 1980. It makes a grievance that, that was not done, meaning that the increase demanded by the Plaintiffs was not paid. It, thereafter makes a further grievance that even agreed amount, which was settled, was not paid. 38. It is not the Plaintiffs’ case that the amount demanded was different from the amount settled. It is the Plaintiffs’ case that the amount agreed was the amount demanded. That was a percentage increase. This letter shows that there were 2 amounts of increase; one which was demanded by the Plaintiffs and the other, which was settled between the parties as the agreed amount. This reflects the Defendants case of settling for an increase, but not percentage-wise as demanded by the Plaintiffs in the letter dated 28th June, 1980. There was indeed a settlement between the parties and that was item-wise as reflected in the slips of paper in the handwriting of the Plaintiffs' partner pasted to the bills of the Plaintiffs drawn upon the Defendants. The Defendants 19 oral contention is in consonance with the document being the slips relied upon by the Defendants and the very letter of the Plaintiffs dated 27.5.1981 Exhibit-H(colly). 39. The answer to question 10 in the cross examination of the Defendants showing the reasonable increase agreed is to that end and corroborated by the Plaintiffs’ letter Exhibit-H (colly). 40. The Plaintiffs' Advocate has drawn my attention to the endorsement on the bills made by the Defendants: “measurements taken and passed for payment” 41. The Plaintiffs' Advocate contended that the term “measurements taken and passed for payment” shows that the amounts mentioned in the bills were accepted and passed for payment and hence they became payable. 42. The Defendants' Advocate contended that the term “measurements taken and passed for payment” shows that the bills were passed by the department of the Defendants verifying the measurements to the accounts department, who would calculate the amounts. The term, 20 “passed” is to be understood in such context. The Thesaurus meaning of “Pass” is shown in 2 separate contexts: In one context it means : go by, go on, go ahead, go onward, move on, progress, proceed, transfer. In the other context is means: reach a satisfactory standard in, complete successfully, satisfy, qualify, meet, get through, achieve, accomplish, finish, stand the test, attend the standard of, approve, certify something as meeting specified requirements. 43. In this case, only upon measurements of the work done being taken, all that that department of the Defendants could certify was that the portion of the Plaintiffs bills so far as they related to the area/measurements was checked and found correct. The Plaintiffs' oral evidence does not show how the measurements of the work done could certify the actual amounts chargeable so that the accounts department could make the payment. The fact that the bills were “passed” on elsewhere shows that another process needed to be followed before payment could be made in the department/section of the Defendants to which the bills 21 were passed on. Hence, the term denotes the various expressions and appellations showing onward movement in the first set of words recited above and does not show satisfaction reached on the work furnished. 44. The Plaintiffs have not shown the acceptance of the amounts claimed by them by intrinsic evidence showing the Defendants' acts. In fact the letter of the Plaintiffs' father Mr. Mehta itself betrays the Plaintiffs case. Consequently, it is seen that the Plaintiffs have not proved the agreement dated April-May, 1979 for increase