M/S NATIONAL BUILDING CONSTRUCTION CORP. LTD. & ORS. ..... Respondents Through: Mr. Sanjeev Mahajan, Advocates. HON'BLE MS. JUSTICE HIMA KOHLI HON'BLE MS. JUSTICE ASHA MENON ORDER % 29.07.2019 1. The appellant/petitioner is aggrieved by an order dated 9.4.2019 whereby, the learned Single Judge has dismissed IPA No.1 of 2019 filed by it for permission to institute a commercial suit under Section 2(1)(C)(vi) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 against the respondent/defendant, National Building Construction Corporation Ltd. (in short „NBCC‟) for recovery of a sum of Rs. 22,87,46,277.10/ towards cost of T & P, machinery, unused material, camp office etc. 2. A glance at the relevant facts is considered necessary. In December, 2018, the appellant/plaintiff instituted a commercial suit on the Original Side of this Court for recovery of money against the respondents/defendants. Accompanying the said suit was an application filed under Order XXXIII FAO (OS) (COMM) 180/2019 Page 1 of 16 Rule 1 of the Code of Civil Procedure, 1908 (CPC) for seeking permission to file the suit as forma pauperis and for being granted exemption from paying the requisite court fee. 3. On receiving advance notice, the respondent/NBCC entered appearance on 14.3.2019. Invoking the provisions of Order XXXIII Rule 5 (f) of the CPC, the respondent/NBCC prayed for rejection of the application filed by the appellant under Order XXXIII Rule 1 CPC on the ground that the suit itself was barred by limitation. Learned counsel for the respondent/NBCC referred to an order dated 9.2.2016, passed in W.P. (C) 1047/2016, filed by the appellant/plaintiff for seeking quashing of a letter dated 4.5.2012 issued by the respondent/NBCC, terminating its contract on the ground of delay in completion of the work. Vide order dated 9.2.2016, the captioned writ petition filed by the appellant herein was dismissed as being barred by delay and laches on the ground that termination of its contract had taken place more than three years ago. It is noteworthy that the aforesaid order dated 9.2.2016 was upheld by the Division Bench vide order dated 2.5.2016, passed in LPA 265/2016 filed by the appellant. 4. The brief relevant facts of the case are that the respondents No.3 and 4/Allahabad Bank had appointed respondents No.1 and 2/NBCC as a Consultant and Project Manager for the rehabilitation, restrengthening, remodelling, retrofitting, renovating and interior decoration of their existing building at A17, Parliament Street, New Delhi. Respondents No.1 and 2/NBCC in turn floated a tender for execution of the aforesaid works. The appellant, then known as M/s. Shambhavi Contractors Pvt. Ltd., participated in the tender process and was declared as the successful bidder. The appellant executed a contract dated 6.1.2009 with the respondents No.1 and FAO (OS) (COMM) 180/2019 Page 2 of 16 2/NBCC. The stipulated period for completion of the work was 12 months. The original date of completion was 4.12.2009, which was subsequently extended to 31.12.2011. The appellant was handed over the site and it commenced the work on 5.12.2008. On 4.5.2012, the respondents No.1 and 2/NBCC terminated the appellant‟s contract on the ground of failure on its part to carry out its obligations and failure to take steps to remedy breaches etc. The impugned termination notice refers to an earlier notice dated 14.2.2012, issued to the appellant, its reply dated 27.2.2012 and the communication dated 2.5.2012, addressed by the respondents No.1 and 2/NBCC to the appellant pointing out the failure on its part to execute the work within the fixed time schedule. 5. The stand of the appellant was that the respondents No.1 and 2/NBCC had committed breach of contract due to which work progress could not be maintained in terms of the schedule; that there was delay in handing over and clearance of the complete site on the part of the respondents No.1 and 2/NBCC and certain amounts liable to be paid to the appellant against running bills for the work done, were illegally withheld with only part payments released. It was thus stated that termination of the contract by the respondents No.1 and 2/NBCC was arbitrary and unlawful. 6. It