1
IN THE COURT OF I ADDITIONAL DISTRICT JUDGE, NELLORE.
Dated this the 2nd day of April, 2012.
Present:- Sri S. JAGANNADHAM, B.Com., B.L., I Addl. District Judge, Nellore.
O.S.No.21/1998
M/s.Sharat Industries Ltd., having reg. office … Plaintiff. at Venkannapalem village, T.P.Gudur, Nellore.
Vs.
M/s.Nagarjuna Construction Co. Ltd., … Defendant. having its registered office at 41, Nagarjuna Hills, Punjagutta, Hyderabad.
The suit coming on 24.2.12 before me in the presence of Sri.P.Raghurami Reddy, advocate for the Plaintiff and of Sri.N.Srinivasulu Reddy, Advocate for Defendant, upon hearing both sides, upon perusing the evidence of witnesses and the documents, the matter having stood over till this day for consideration, this Court made the following:
J U D G M E N T
This suit is filed for directing the defendant to pay a sum of
Rs.2,10,29,178/- with interest at 18% per annum on Rs.14,08,745/- and for costs.
2. The plaintiff is the M/s.Sharat Industries Limited. The plaintiff is a company incorporated under the Companies Act. The plaintiff purchased Ac.534.33 cents shown as Item-1 of the plaint schedule at
Venkannapalem, Thotapalli Gudur Mandal. The plaintiff wanted to start shrimp culture, for which an integrated aqua culture project was required. The plaintiff entered into an oral contract with the defendant towards the end of year 1993 for construction of its integrated aqua culture project in the above said land which includes civil works by way of construction of a) Hatchery unit b) Feed mill c) Administrative building d) Canteen e)Feed and fertilizers f)Feeder canals including 2 inlets and outlets g) roads h) Service buildings i) auxiliary building and
j) processing plant described in Item-2 of the plaint schedule. So, the estimated costs was about Rs.8 crores. A letter of intent dt:11.1.94 was issued to the defendant. Pursuant to the letter of intent, the work order was also furnished to the defendant. Thereafter the defendant commenced civil works in the month of April, 1994. When the civil works were in progress, the periodical payments were made to the defendant till July, 1996 with reference to work entrusted to the defendant. The payments were either by cash or by cheque which were duly acknowledged by the defendant. The work was not completed despite the request made by the plaintiff to the defendant to complete the work. The defendant left the work incomplete in the first week of August, 1995.
i) The work done by the defendant was of inferior quality which is described in annexures 1 and 2 and also perfunctory in all aspects and below standard specifications.
ii) The inferior quality and perfunctory nature of the work was brought to the notice of the defendant on several occasions and requested to rectify the defects. But defendant did not make any attempt to rectify the same.
iii) The defendant has committed breach of the contract.
iv) The plaintiff was constrained to pay excess bill amount of
Rs.16,56,128/- to the defendant in respect of feeder canals bill in
Sections A to F towards the rectification of discrepancies in physical quantities which is described in the annexure.
v) The plaintiff spent Rs.14,08,745/- for rectification of the collapsed or damaged structures such as inlets and outlets of the shrimp culture 3 ponds from Sections A to F, Hatchery unit and fertilizer building and processing plant with extent described in the annexure.
vi) The plaintiff incurred estimated additional expenditure of
Rs.5,26,874/- for reconstruction and rectification of damaged feeder canals, inlets and outlets of the shrimp culture ponds for sections A to
F.
vii) The plaintiff has to incur additional estimated extent of
Rs.88,95,000/- towards the repairs as well as reconstruction of 1)Larvae building 2)Administrative building 3)Service building 4) Algae building 5) Road work, 6) Main Feeder and minor feeders, 7)
Processing plant 8) Feed mill 9) inlets and outlets of the shrimp culture ponds in Sections A to F on account of incomplete structures, inferior quality of work, due to structural collapse of the inlets and outlets and defective constructions.
viii) The plaintiff suffered consequential crop loss of Rs.45,13,000/- for the year 1995-96 and Rs.30,00,253/- for the year 1996-97.
3. The defendant is bound to pay the above said amount of Rs.2 crores to the plaintiff. The plaintiff issued legal notice to the defendant
dated:1.6.98 by register post acknowledgment due. The defendant
gave reply dated:8.6.98 with all false and frivolous contentions. The plaintiff is also entitled to claim interest at 18% on Rs.14,08,745/- from 4.6.98 till the date of realisation.
4. The defendant filed written statement contesting the suit. The defendant is M/s.Nagarjuna Constructions Company Limited,
Hyderabad. The plaintiff acquired Ac.534.33 cents in Venkannapalem 4 of Thotapalli Gudur Mandal. The plaintiff was intending to start export oriented unit of integrated shrimp project in the above said lands. The plaintiff requested the defendant to execute the civil constructions work in the above said land. In consequence thereafter the plaintiff issued a letter of intent dt:11.1.94 to the defendant for execution of civil works namely construction of hatchery building complex, aqua duct, dox and drain etc., approximately valued around Rs.530 lakhs.
The plaintiff is also agreed to award the contract relating to construction of feed mill and processing plant approximately value around Rs.200 lakhs. The plaintiff issued work order dated:31.3.94.
As per the clause No.8 of work order, the maintenance period of civil works executed by the defendant was only 12 months. Immediately on receiving work order, defendant commenced with the civil works in the land of the plaintiff as per specifications mentioned in the work order. The Site Engineer/Project Engineer/Incharge of Site/Project
Manager employed by the plaintiff were supervising the construction work of the defendant in the above said land of the plaintiff. The construction works were periodically inspected and approved by them.
Payments were being made periodically. As per clause 20 of work order dated:31.3.94, the material used for construction work were to be first inspected and approved by the project engineers of the plaintiff and then only the same were to be used in the construction work. The defendant has executed all the civil works entrusted to it to the satisfaction of the plaintiff to the extent of Rs.722.09 lakhs by May, 1995. The defendant had raised in all 13 RA bills during the period
April, 1994 to May,1995. The plaintiff had at no time raised any objection and after certifying the R.A. bills realised a sum of
Rs.5,65,05,000/- though with delay. The plaintiff had commenced its 5 shrimp culture and hatchery in the completed areas even before completing the civil works. By March/April, 1995, the financial position of the plaintiff deteriorated due to failure of shrimp culture on account of attack of virus disease. The same was mentioned by the plaintiff in the letter addressed to the defendant dated:22.4.96. Major portion of the works were completed. The plaintiff was not in a position to raise funds. The Managing Director Sri.S.Prasad Reddy, the
Director Sri.B.Venkatramireddy, Chief Engineer, Sri.Y.M.Reddy and other senior officials of the plaintiff company had a meeting with
K.V.Narasimhan, the Assistant General Manager of Defendant on 18.8.95 at the corporate office of plaintiff at Chennai and had discussions in detailed as to how the amount due to the defendant should be paid by the plaintiff company. A minutes was adopted on 18.8.95 to the effect that the plaintiff should pay Rs.100 lakhs to the defendant towards the balance amount due to the defendant in full settlement of the work executed payable in four installments for which the defendant agreed. In consequence of the same, the Managing
Director Sri.S.Prasad Reddy issued four postdated cheques. It was mentioned in the minutes dt:18.8.95, that the plaintiff was fully satisfied with the construction work executed by the defendant in the lands of the plaintiff and then arrived at Rs.100 lakhs to be payable to the defendant. Thereafter the plaintiff was delaying with the payments on some ground or the other in view of financial problems faced by the plaintiff. As the financial problems of the plaintiff had deteriorated, the plaintiff wrote a letter dated:27.11.95 wherein they expressed that they would pay Rs.100 lakhs in 13 installments as against agreed four installments. The plaintiff agreed to pay Rs.100 6 lakhs between 25.1.1996 to 31.3.1996 in 13 installments and issued 13 postdated cheques to the defendant as shown below.
S.No Cheque Name of the Bank.DatedAmount Rs. No. 1052421Bank of Baroda, Alwarpet Branch, 25.1.19966,000-00 Chennai 2052422Bank of Baroda, Alwarpet Branch, 01.02.19967,000-00 Chennai 3052423Bank of Baroda, Alwarpet Branch, 05.02.19968,000-00 Chennai 4052424Bank of Baroda, Alwarpet Branch, 10.02.19968,000-00 Chennai 5052425Bank of Baroda, Alwarpet Branch, 15.02.19969,000-00 Chennai 6052426Bank of Baroda, Alwarpet Branch, 20.02.19968,000-00 Chennai 7052427Bank of Baroda, Alwarpet Branch, 25.02.19967,000-00 Chennai 8052428Bank of Baroda, Alwarpet Branch, 03.03.19968,000-00 Chennai 9052429Bank of Baroda, Alwarpet Branch, 10.03.19968,000-00 Chennai 10052430Bank of Baroda, Alwarpet Branch, 15.03.19968,000-00 Chennai 11052431Bank of Baroda, Alwarpet Branch, 20.03.19968,000-00 Chennai 12052432Bank of Baroda, Alwarpet Branch, 25.03.19967,000-00 Chennai 13052433Bank of Baroda, Alwarpet Branch, 31.03.19968,000-00 Chennai
5. The above said 13 cheques were signed by the Managing
Director. When 13 cheques were presented periodically, all the cheques were bounced for want of sufficient funds. The defendant caused notices through M/s.Singhania & Company under section 138 of
Negotiable Instrument Act. The plaintiff sent reply notices to
M/s.Singhania & Company acknowledging its liability of Rs.100 lakhs to the defendant and about issuing 13 postdated cheques. The plaintiff reiterated that due to adverse conditions in hatchery sale, they could not pay amount in time. On the request of plaintiff, some of the 7 bounced cheques were represented even then they were again re- bounced for want of sufficient funds in the account of the defendant.
The legal notices were issued under section 138 of Negotiable
Instrument Act. The plaintiff having received notices has sent reply admitting liability. The defendant filed criminal cases against the plaintiff under section 138 of Negotiable Instrument Act on the file of II
Metropolitan Magistrate, Egmore in Chennai in the month of May, 1996. When the complaints were dismissed they preferred appeals to
High Court at Madras, the appeals are pending. The plaintiff knowing fully well that the defendant was vigorously contesting the criminal cases for recovery of the amounts as a counterblast the plaintiff filed the present suit. It is a fictitious and false suit. In the letter
dated:8.4.96 addressed to M/s. M.S.Hatcheris, Madras marking copy
to the defendant made a demand of Rs.20 lakhs from
M/s.M.S.Hatcheries pleading that the plaintiff was in severe financial crisis and early payment of Rs.20 lakhs due to it. So, by 8.4.96 the plaintiff was in financial crisis. The plaintiff prior to issuing notice
dated:1.6.98 never communicated to the defendant with regard to the
alleged poor quality of civil constructions executed by the defendant.
If really there was any faulty constructions at the project site, the plaintiff would not have made part payments up to July, 1996. It would have raised the same at the time of meeting dt:18.8.95 and further plaintiff would not have issued postdated cheques for Rs.100 lakhs.
The plaintiff was also filed an application under Sick Industrial
Companies (Special Provisions) Act,1985 before the Board for
Industrial and Financial Re-construction, it was mentioned in the above petition the prevalence of virus and white spot diseases since 1994-95 caused lot of damage to shrimp culture, consequently the industry was 8 affected. It was also mentioned that the Hon'ble Supreme Court in
W.P.No.56194 filed by Mr.S.Jagannadham from Tamilnadu in its order
dated:17.12.96 ordered for the closure of all Aqua culture units
situated within the 500 meters from the Costal Regulatory Zone (CRZ) and this hampered the progress of aqua culture activities resulting in lower drain over. Further the banks were apprehensive of consequences and stopped further financial assistance to Aqua culture industry. So, the plaintiff was in troubles financially. The present suit was filed after 2 1/2 years of the defendant filing cheque bounce cases
before II Metropolitan Magistrate, Egmore, Chennai. The suit is filed as
a counter and further only to divert the attention of the Metropolitan
Magistrate. The each and every claim made by the plaintiff is nothing
but false and baseless and invented for the defending the criminal cases filed by the defendant against the plaintiff and to avoid payment of one crore to the defendant which was agreed by plaintiff. The documents and photographs filed by plaintiff were all created. The observations made by the commissioner and the so called engineer should assist the commissioner are not reliable. The close examination of each of the amounts claimed by the plaintiff in the present civil suit would clearly show that it is nothing but fictitious, false and baseless and raised only with a view to delay and evade the just dues of the defendant. The plaintiff has not furnished even a single document to prove their claim. The plaintiff merely attached 41 plans/drawings and statement of account and photographs supposed to have taken after four years after the defendant left the site. No basis is provided for the claims made. The plaintiff is not entitled for any of the claims made in the plaint. The defendant completed the civil works entrusted to the best satisfaction of the plaintiff. At no time during the execution 9 of the said works, there was even a single letter addressed by the plaintiff with regard to alleged poor quality of construction or material used. The constructions were made day to day under the supervision of Site Engineers, Project Engineers, Project managers of plaintiff. Had there been any faulty constructions, the plaintiff would not have made payment of Rs.5,65,05,000/- between 23.3.1994 to 1.6.95. The plaintiff and other officials would not have signed on the minutes of the meeting dated:18.8.95 agreeing to pay Rs.100 lakhs towards the balance due to defendant and postdated cheques would not have been issued. Further the plaintiff would not have made payments till July, 1996. The defendant left the project site in August, 1995 as plaintiff owe one crore by then. The plaintiff never expressed defective or default constructions till issuing notice on 1.6.98. These defences were raised as a counterblast to criminal cases filed by the defendant.
Not even a single document is filed to prove defective construction alleged to be made by the defendant. The plaintiff has mentioned in the annual reports, the directors report and in the application filed
before the Board of Industrial and Financial Re-construction that the
loss was due virus and white spot diseases in shrimp culture and further on account of restrictions placed by the Supreme Court, after the defendant left the Project site, plaintiff made payments on different dates from April to July, 1996 in a total sum of Rs.4,15,500/- towards part of Rs.100 lakhs agreed to be paid by the plaintiff to defendant. The plaintiff sent number of letters to the defendant admitting their liability to pay Rs.100 lakhs and further expressed their inability in not paying the amount agreed to be paid due to financial problems. The suit is an after thought based on fictitious, false and 10 baseless allegations. So, the defendant prayed to dismiss the suit with costs.
6. The defendant originally filed written statement and thereafter filed additional written statement for which plaintiff filed rejoinder denying several averments made in the additional written statement.
7. Basing on the aforesaid pleadings, the following issues were settled for trial.
1. Whether the plaintiff is entitled for Rs.2,10,29,178/- from the defendant?
2. Whether the suit is barred by time?
3. Whether the plaintiff and defendant have arrived at satisfaction under the minutes of meeting dated:18.8.1995? and
4. To what relief, if any?
8. During trial, P.W.1, C.W.1, C.W.2 are examined, Ex.A.1 to Ex.A.51,
Ex.C.1 to Ex.C.12 marked for the plaintiff. D.W.1 and D.W.2 are examined, Ex.B.1 to Ex.B.55 marked for the defendants.
9. The admitted and undisputed facts are that the plaintiff and defendant are companies registered under Companies Act, 1956. The plaintiff had Ac.534.33 cents of land in Venkannapalem, Korutur and
Koduru Bit-I villages of Thotapalli Gudur and Indukurpet Mandal of
Nellore District. The plaintiff wanted to start an export oriented unit of integrated shrimp project in the above said land. The plaintiff invited tenders for carrying out civil constructions in the aforesaid land. The defendant and others submitted their tenders. The tenders of defendant was accepted in pursuance of correspondence and talks, the plaintiff wanted to engage the defendant to carry out the civil 11 constructions. The plaintiff issued a letter of intent dated:11.1.94 (Ex.B.3) for execution of the civil works namely construction of hatchery building complex, aqua duct, dox and drain etc., valued approximately Rs.530 lakhs. The plaintiff also expressed to award
additional work of construction of feed mill and processing plant
costing approximately Rs.200 lakhs. In pursuance of intent, the defendant agreed to execute the work. Then the plaintiff issued a work order dated:31.3.1994 in Ex.B.4. As per the terms of work order, the defendant has to supply the material. The team of engineers of plaintiff has to approve the same and then only the material has to be used. The plaintiff has to supply the plans, designs and the construction shall be made under the supervision of the tem of engineers of the plaintiff. The rates were also agreed and the payments shall be made by monthly by way of each individual work entrusted. The defendant commenced the work in 1994. He was carrying on the work, the plaintiff made some payments. The work went on till the first period of 1995. By August, 1995, the defendant stopped the work. So, the work was not carried out completely. The defendant is contending that as the bills were not paid, the defendant stopped work. The plaintiff is contending that without any reason the defendant stopped the work and further did not carry out the defects or further constructions. The defendant violated the contract and left the work unfinished. The defendant is contending that on 18.8.95 a meeting was held. In that meeting the plaintiff’s officials including
Managing Director and Directors agreed to pay one crore to the defendant and thereafter failed to pay and when the cheques issued by the plaintiff bounced, criminal cases were filed and further civil suit was filed in O.S.No.28/98 for recovery of the amounts mentioned in the 12 cheques. The plaintiff is filing this suit claiming damages for not completing the works, for defective constructions and for using substandard material and causing obstruction to the business of the plaintiff, thereby they sustained loss in business. The plaintiff is claiming a sum of Rs.2,10,29,178/- with costs and with interest.
10. After filing this suit C.W.1 was appointed as Advocate
Commissioner to inspect the various constructions made by the defendant to note the damages caused to the constructions, the defective constructions and to note the other defects in the constructions with the help of qualified engineer. C.W.1 took the assistance of C.W.2 a retired engineer and examined the entire constructions on different dates and both of them submitted their reports pointing out the defective constructions, seepage and leaks were found in the constructions and various other aspects. So, the plaintiff is basing his claim on the estimates made by him and showing them in the annexures of the plaint and also basing on the evidence of
C.W.1 and C.W.2.
11. The learned counsel for plaintiff submitted that both plaintiff and defendant are companies registered under Companies Act. The plaintiff entrusted the civil constructions worth rupees nearly eight crores. The work has to be carried out in the lands of the plaintiff in
Venkannapalem and the civil works were required for aqua culture.
The letter of intent was given on 11.1.94. The defendant commenced work in April, 1994. The constructions were defective, the plaintiff went on paying the bills till July, 1996. Inspite of plaintiff paying the amounts, the defendant left the work incomplete. The quality of work 13 was inferior, perfunctory and below standards. The request made by the plaintiff to rectify the defects were not attended by the defendant.
The plaintiff made excess payment which was not accounted by the defendant in spite of notice. On account of defective constructions, the plaintiff could not do the business with its full capacity and thereby it sustained loss in the business in the year 1995-96 and 1996-97. The claim of the plaintiff is corroborated by the evidence of C.W.1 and
C.W.2. C.W.2 has noted exclusively the various substandard constructions made, the defects in the construction. The defects were photographed apart from describing by C.W.2 in his report. A detailed legal notice was issued to the defendant on 1.6.98 demanding defendant to pay the damages of two crores. The defendant gave reply with all false allegations. The various defective constructions were proved through the evidence of C.W.1 and C.W.2. As seen from the commissioner’s report, the defendant never assisted the commissioner to correctly record the damages and defective constructions. But C.W.1 and C.W.2 having spent lot of time have submitted their reports which amply prove the defective constructions and use of inferior quality of material. The defendant set up the alleged minutes under Ex.B.5, but nobody is examined to prove the same when it was denied. D.W.1 has nothing to do with Ex.B.5. So, the alleged minutes is not proved. The defendant left the work incomplete without settling the accounts. In spite of request made by the plaintiff, the defendant did not carry out the defects in the work or completed the work. So, the plaintiff is justified in making a claim and further the plaintiff has proved with both documentary and oral evidence that plaintiff is entitled for the amount claimed. So, he submitted that in view of oral evidence of P.W.1, C.W.1 and C.W.2, 14 documentary evidence of Ex.A.1 to Ex.A.51, Ex.C.1 to Ex.C.12, the plaintiff could prove the defective constructions of defendant, the substandard work and so, plaintiff is entitled to claim the suit amount.
12. The learned counsel for defendant is contending that the plaintiff entrusted the civil constructions to the defendant company.
PW.1 and C.W.2 categorically admitted that defendant is a reputed company in India. The defendant supplied the material which was approved by the team of engineers of plaintiff. The constructions were made under the supervision of the team of engineers of plaintiff as per the designs produced by them. So, the work was carried on under the direct supervision of the team of engineers of plaintiff. If substandard material was brought, the engineers could have rejected the same then and there itself. The prawn culture was at high peak up to the year 1994. By 1995 there was set back to the prawn culture, the prawns were being attacked with virus and other diseases. Further the
Hon’ble Supreme Court gave direction that prawn culture should not
be carried out within 500 meters from sea, thereby the banks also went back in advancing amounts. So, the prawn culture was adversely affected. On account of virus and other problems, the plaintiff was sustaining loss from 1995 onwards even though they got huge profit of more than six crores in the beginning. On account of set back in the business, the plaintiff was delaying the payments. By May, 1995, the plaintiff almost stopped paying the amounts due to the defendant. In spite of several requests the bills were not passed. The plaintiff showing disinterst in completion of the work, so defendant was forced to stop the work. The defendant was demanding the plaintiff to pay the bills worth more than one crore. The plaintiff never requested the 15 defendant to complete the work. They stopped paying the bills. So, defendant started demanding the plaintiff to pay the bills. So, there was a meeting on 18.8.95. The accounts relating to execution of work, payments were considered and a minutes were passed under Ex.B.5 to pay one crore to the defendant. In order to pay the one crore four postdated cheques were issued. But subsequently the plaintiff took back four cheques and requested for further time to pay the amount in 13 installments and accordingly he issued 13 postdated cheques covering the period of more than one year. When the defendant presented the cheques, they were bounced. Criminal cases were filed against the plaintiff. So, as a counterblast the plaintiff issued notice on 1.6.98 claiming as though the constructions were defective, some damages were caused to the works. At no point of time the plaintiff expressed dissatisfaction over the work. After three years of completion of the work, first time notice was issued on 1.6.98. If really plaintiff was willing to get the work completed by the defendant, it should have paid the balance bills, it should have issued a notice demanding the defendant to complete the work. The plaintiff kept quite for three years and that itself shows that it never intended to get the balance work completed by paying the bills. As the defendant instituted criminal cases for bouncing of the cheques as a counterblast the plaintiff filed this suit as though there were defective constructions and substandard works. The plaintiff has shown disinterest in the work as it was getting continuous loss in the business due to virus attack.
He submitted that the commissioner without issuing notice to the defendant collected samples and send them to the Engineering
College, Tirupati and Engineering College, Andhra University,
Viskhapatnam. The court never authorized the commissioner to collect 16 samples and to get them examined by expert. Further the samples were collected without the knowledge of the defendant. The experts are not examined before the Court to prove the expert reports. The alleged damages are not estimated by any technical person. The photographer is not examined, PW.1 was not authorized to institute the suit. No authorization or resolution is produced in the Court. So, the very suit instituted by PW.1 is not maintainable. There is no proof of damages of the constructions or for business. So, the suit of the plaintiff is liable to be dismissed with costs.
13. On behalf of the plaintiff, Sri.Sabbella Prasad Reddy the Managing
Director of the plaintiff is examined as PW.1. He has deposed about entrusting civil works to the defendant, various payments made during the execution of the work, the defective constructions and substandard constructions made by the defendant. The loss sustained by the plaintiff on account of substandard and defective constructions. He also produced Ex.A.1 to Ex.A.51 to substantiate his claim. CW.1 is the advocate commissioner and C.W.2 is the Engineering Expert who assisted the commissioner in execution of the warrant and Ex.C.1 to
Ex.C.12 marked. They deposed about visiting the constructions made by the defendant to the plaintiff, noting down various defects in the constructions, getting them photographed through the photographer and submitting their detailed reports for inferior and defective constructions made by the defendant. D.W.1 is Sri.M.V.Srinivasa
Murthy the Company Secretary cum Chief General Manager (Legal) and he deposed various aspects relating to execution of the work, plaintiff stopped paying bills, thereby defendant stopped work, then plaintiff agreeing to pay Rs.100 lakhs and thereafter committing 17 default and so, criminal cases were filed. D.W.2 has supported the evidence of D.W.1. The defendant exhibited Ex.B.1 to Ex.B.55. Ex.A.1 is the Memorandum of Articles of Association of plaintiff company.
Ex.A.2 and Ex.A.3 are the annual reports of plaintiff company for the year 1995-96 and 1996-97. Ex.A.4 to Ex.A.44 are the plans relating to various civil works that required, carried out by the defendant in the land of the plaintiff. Ex.A.45 is the schedule of payment made by the plaintiff to the defendant. Ex.A.46 and Ex.A.47 are the positive photographs and negatives numbering 80 showing various defects in the constructions. Ex.A.48 is the legal notice, Ex.A.50 is the reply.
14. Ex.C.1 is the report given by the advocate commissioner. Ex.C.2 is photo albums 14 in number submitted by the commissioner along with his report. Ex.C.3 is the receipt issued by photographer. Ex.C.4 is the test report given by S.V.University Engineering Collecte. Ex.C.5 and Ex.C.6 are the receipts issued by S.V.University and Andhra
University for receiving the amount for doing expert work. Ex.C.7 and
Ex.C.8 are the reports issued by Andhra University Engineering
College, Ex.C.9 is the report issued by Engineering College, Andhra
University. Ex.C.10 is the counterfoil for paying the expert fee to
S.V.University Engineering College. Ex.C.11 is the detailed report of
C.W.2 and Ex.C.12 is the receipt for paying fee to C.W.2.
15. Ex.B.1 is the attested copy of General Power of Attorney given to P.W.1 to defend the defendant. Ex.B.2 is the copy of resolution passed authorizing PW.1 to give evidence and to represent the suit.
Ex.B.3 is the copy of letter of intent given by the plaintiff to defendant and equalent to Ex.A.51. Ex.B.4 is the attested copy of work order 18 issued by the plaintiff to defendant. Ex.B.5 and Ex.B.6 are the certified copies of letters sent by the plaintiff to the defendant. Ex.B.7 to
Ex.B.27 are the certified copies of cheques, the memos issued when the cheques were bounced. Ex.B.28 to Ex.B.39 are the correspondence between the plaintiff and defendant. Ex.B.40 to
Ex.B.42 are the annual reports of plaintiff company for the years 1997- 98, 1998-99, 1999-200. Ex.B.43 is the copy of the application submitted by the plaintiff to treat the industry as sick industry.
Ex.B.44 is the statement of account sent by the plaintiff to the defendant. Ex.B.45 and Ex.B.46 are letters by the plaintiff to the defendant. Ex.A.47 is the original R.A. Bill No.8. Ex.B.48 is the letter sent by the defendant to the plaintiff. Ex.B.49 to Ex.B.53 are attested copies of R.A.Bills submitted by defendant to plaintiff. Ex.B.54 is the certified copy of statement of account of plaintiff’s bank. Ex.B.55 is the letter of advocate for defendant informing status of the appeals pending on the file of High Court of Chennai.
16. Issue No.3: The contention of the plaintiff is that the defendant without completing the civil constructions entrusted to them left the site. In spite of oral request, the work was not completed. Further the substandard material was used in executing the work. The execution of the work was of inferior in quality and perfunctory and below the standard specifications. On account of breach of contract by the defendant, the plaintiff was forced to incur additional expenditure for rectification of the works as referred in A to F schedules. He was also forced to spend Rs.14,08,745/- for rectification of collapsed or damaged structures. It also incurred additional expenditure for rectification of damaged feeder canals including main canal, small 19 canals. It further estimated expenditure of Rs.88,95,000/- for effecting repairs of several buildings and incurred crop loss due to defective constructions and so, plaintiff is entitled for damages claimed in the plaint.
17. The defendant is contending that the plaintiff failed to pay the bills as agreed. There was huge accumulation of arrears nearly more than one crore. The plaintiff sustained loss in the business and it was in financial crisis. As the plaintiff was unable to pay bills the defendant stopped the work. The defendant demanded payment of arrears for the work executed till then. The same was not paid. Then a meeting was held on 18.8.95, the accounts were considered and plaintiff agreed to pay Rs.100 lakhs towards final settlement. Then cheques were issued which were bounced and criminal cases were filed. Prior to 1.6.98 there was no request or demand from the plaintiff side to complete the arrears. The plaintiff never brought to the notice of the defendant either the use or substandard material or making constructions of inferior quality and perfunctory, below the standard specifications.
18. The plaintiff engaged several technical people who supervised the work. So, the material brought by defendant was checked and allowed to be used in execution of the work. In the entire correspondence, the defendant nowhere mentioned use of inferior quality of material, or defective constructions. After the defendant filed criminal cases in 1996 for bouncing of cheques as a counterblast the plaintiff invented the alleged damages, issued notices and then filed suit. So, the minutes of the meeting dated:18.8.95 would show that 20 the plaintiff having satisfied with the work of the defendant agreed to pay Rs.100 lakhs.
19. The plaintiff is disputing the passing of minutes on 18.8.95 in the corporate office of plaintiff. So, this Court has to consider whether any meeting was there on 18.8.95 and the minutes was passed agreeing to pay Rs.100 lakhs by the plaintiff to the defendant. The plaintiff is relying upon Ex.B.5. Ex.B.5 is the letter addressed by Y.M.Reddy Chief
Engineer of plaintiff including the copy of minutes to the defendant. It is referred in the letter that the minutes of the meeting that took place between us on 18.8.95 is herewith sent. As seen from Ex.B.5 that there was difference of Rs.71,000/- with regard to the material received and the same will be checked up at their end. It is also further mentioned there was no dispute on the material supplied to
NCCL. It was referred the difference in quantities for the earth work, escalation and concreting rate for above 3.5 meters level has been finalised. The brick work rate has been considered at the rate of
Rs.1382-36/-m3 for the canal water. After incorporating the above changes, the total bill value will be Rs.6,77,84,615.82ps. The amount for the above changes will be Rs.11,51,464.10ps, which was included in the total bill. The total amount payable after considering the income tax deductions and amounts paid till date by the plaintiff to the defendant would come to Rs.97,34,594-58ps. (say Rs.100 lakhs). It is further mentioned the above said Rs.100 lakhs will be payable in four installments. It is further mentioned with regard to interest, the plaintiff would discuss with director of the defendant.
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20. The minutes was signed by one K.V.Narasimhan on behalf of the defendant. Narasimhan is not examined. P.W.1 is one of the signatory. He has denied this Ex.B.5. There seems to be other persons who signed Ex.B5 namely B.Venkatramireddy Director, S.Hari Prasad
Reddy, K.L.N.Reddy, Y.M.Reddy on behalf of the plaintiff. None of them are examined. So, the counsel for plaintiff is contending that Ex.B.5 is not proved. On the contrary, the counsel for defendant is contending that passing of the minutes in Ex.B.5 was not denied in the subsequent correspondence. Impliedly plaintiff admitted the aforesaid minutes.
21. Ex.B.28 is the legal notice issued on behalf of the defendant
dt:6.2.96. Ex.B.31 is the reply to Ex.B.28. It was mentioned in Ex.B.28
that there was a meeting in the corporate office of plaintiff on 18.8.95 and in that meeting minutes were passed agreeing to pay Rs.100 lakhs to the defendant. The same is not denied in Ex.B.31. On the contrary, it is admitted that plaintiff agreed to pay Rs.100 lakhs by installments.
In Ex.B.32, Ex.B.33, Ex.B.35 the plaintiff admitted its liability to pay
Rs.100 lakhs to the defendant and request was being made to bear with the plaintiff for delayed payment. When the defendant was continuously mentioning in the legal notice about Ex.B.5 there is no specific denial of the same in the aforesaid replies sent by the plaintiff.
So, even though nobody is examined to prove Ex.B.5, the implied admission of the same in the replies given by the plaintiff, it is amply proved that there was a meeting on 18.8.95 in the corporate office of plaintiff and on considering the supplies made, constructions executed, the payments made, final amount was arrived at Rs.100 lakhs and the plaintiff agreed to pay the same by installments to the defendant and cheques were issued to pay 100 lakhs. So, this Court agrees with the 22 contention of the defendant that a meeting was held on 18.8.95, the final amount was arrived in that meeting and minutes were passed in
Ex.B.5 and the plaintiff admitted the same by not denying when the fact was asserted in the notices issued on behalf of the defendant. So, this issue is answered in favour of the defendant and against to the plaintiff.
22. Issue No.2: The defendant is contending that for non-payment of bills, the defendant stopped the work. Subsequent correspondence would show that there were no defects in the constructions. No written request was made by the plaintiff to the defendant either to complete the arrears work or informing that there was any defects in the execution of the work or quality of the work was inferior. The plaintiff made part payments from 1.4.96 to 30.7.96. Till 1.6.98 the plaintiff never informed the defendant that the work executed was of substandard. The notice was issued after three years of defendant leaving the work. So, the suit is barred by limitation. This Court is unable to agree with this contention. As seen from the correspondence and the evidence, the defendant left the work incomplete in August, 1995. The notice was issued on 1.6.98 and suit was filed on 17.7.98. The payments were also made up to July, 1996.
So, the claim is made within three years from the time the defendant left the work. So, the suit is not barred by limitation.
23. Issue No.1: Admittedly the defendant left the work incomplete in the first week of August, 1995. There is no evidence from plaintiff side that any request was made from plaintiff side to the defendant to complete the work. It is referred in the plaint, in the legal notice and in 23 the evidence of P.W.1 that a oral request was made, but the same is not substantiated. On the contrary, the correspondence that took place between plaintiff and defendant subsequent to 1.8.95 till 1.6.98 does not disclose any request was made by the plaintiff to the defendant to complete the arrears work. So, the contention of the plaintiff that oral request was made is not proved. According to the defendant, the amount was not paid as agreed by accepting the bill.
The arrears was nearly one crore, the plaintiff suffered loss. Plaintiff was in financial crisis. so, the defendant was forced to leave the work in the middle.
24. In Ex.B.32, Ex.B.37, Ex.B.38 and Ex.B.39 it was clearly mentioned that the plaintiff was in financial crisis. It was sustaining losses, thereby it has filed a petition in the original of Ex.B.43 to treat the company as sick industry. So, it is proved that plaintiff was in financial difficulty. So, it did not insist the defendant to complete the work. The plaintiff could not pay even agreed Rs.100 lakhs. The cheques issued for payment of Rs.100 lakhs was taken back with a request to permit the plaintiff to pay the agreed amount in 13 installments and issued 13 cheques. They were also bounced even then amount was not paid. So, there is no evidence from plaintiff's side to show that it is the defendant who committed the breach of contract.
On the other hand, the plaintiff was in financial crisis, it could not pay the bills. So, it did not ask the defendant to complete the work.
25. The plaintiff is claiming various amounts under different heads.
Plaintiff has claimed Rs.45,13,000 for the financial year 1995-96 and
Rs.30,00,253/- for the financial year 1996-97 towards crop loss. As far 24 as loss is concerned. Ex.B.42 shows that the plaintiff was getting loss.
Even the contention of the defendant is also that the plaintiff was getting loss in the business. So, it did not pay the amount and it did not ask the defendant to complete the work. So, in a way both parties submit that plaintiff was getting losses in the business. The defendant explains that from 1995 onwards due to virus and white spot diseases, there was heavy loss to the growers of prawns. Further the Supreme
Court gave direction in W.P.No.561/94 filed by one Mr.Jagannadham of
Tamilnadu that the aqua culture units situated within 500 meters from the coast of the sea should be closed. So, it affected shrimp culture.
Further the banks were also afraid to advance loans to aqua culture.
So, there was heavy losses in aqua culture business. So, that also reveals that plaintiff was sustaining loss.
26. The plaintiff is contending that it sustained the above loss on account of inferior quality of constructions, perfunctory constructions, damages caused or collapsing some of the constructions. So, the plaintiff must substantiate the reasons for sustaining loss. The letters addressed by the plaintiff either to defendant or to third party (i.e.
Ex.B.39) reveals that due to adverse conditions, due to virus and other diseases of prawns, the business was adversely affected, thereby there were no hatchery sales, no demand for sales. It was clearly mentioned in Ex.B.39 that loss was due to the above said reasons.
Even in the letters addressed to the defendant, the plaintiff has mentioned that plaintiff is in financial crisis. The business also went down due to virus and other diseases in shrimp culture. So, the loss that was suggested in the letters prior to 1.6.98 was due to diseases and financial crisis in the plaintiff company. Now plaintiff wanted to 25 attribute the same to the defendant. The plaintiff can substantiate the same by producing relevant evidence. P.W.1 the Managing Director has admitted in his evidence that he has not visited constructions. He has not examined any of his technical employees engaged by him to explain the same. In the cross examination he stated that his employees played fraud on the plaintiff by colluding with the defendant and he has even stated that he would initiate criminal prosecution against them. The same was not pleaded in the plaint, not referred in the chief affidavit. So, the above evidence of P.w.1 shows that he has no personal knowledge about the defective constructions and he has not explained that the loss was sustained by the plaintiff due to defective constructions of the defendant. The evidence of C.W.1 and C.W.2 would show by the time they visited the premises of the plaintiff, some of the ponds were under use and shrimp culture was there. So, on considering the entire evidence, this Court is of the considered view that plaintiff has not established that the loss was sustained in the business due to defective construction. On account of defective constructions, if the prawn culture was not carried out properly then the plaintiff can attribute the loss to the defendant. But if the plaintiff sustained loss due to diseases in prawn culture and due to financial crisis, it cannot be attributed to the defendant. So, this
Court is not agreeing with the contention of the plaintiff that plaintiff sustained crop loss during the years 1995-96 and 1996-97 due to defective constructions.
27. The plaintiff pleaded that an amount of Rs.16,50,128/- was paid by way of excess in respect of feeder canals building in A to F Sections towards the rectification of the defects. The plaintiff is contending that 26 the defendant gave wrong description of the work executed and thereby it claimed excess and the excess was paid. So, plaintiff is entitled to recover the same. The plaintiff failed to substantiate the above ground with cogent evidence. The plaintiff is in arrears of nearly
Rs.100 lakhs to the defendant and criminal cases are also pending for bouncing of the cheques. The evidence of C.W.1 and C.W.2 is that they found some defective constructions. The plaintiff has not produced any evidence for excess payment. It is for the plaintiff to place the evidence before the Court how it has made excess payment to the defendant. Admittedly criminal cases are pending for non- payment of the final settlement of amount. If the plaintiff is contending that the work executed is fell short, the work for which bill was presented that can be proved by taking measurements of exact work executed and the bill presented for the work executed. If the bills shows the particular extent, the amount was claimed and on verification the extent fell short, the plaintiff can claim the difference of amount. But there is no such evidence to show that quantity of execution of the work fell short of the claim made by defendant.
28. The plaintiff is claiming a sum of Rs.14,08,745/- for spending rectification of the collapsed or damaged structures such as inlets and outlets of shrimp culture of A to F Hatchery. The plaintiff is claiming the above said amount for spending that amount for rectification of collapsed and damaged structures. When the evidence is considered there is no acceptable evidence produced by the plaintiff that plaintiff spent the above amount for rectification of collapsed or damaged structures. P.W.1 deposed that the above amount was paid to the defendant and the defendant carried out the above work In the cross 27 examination he admits that B.Venkatramireddy was looking after the execution of the contract works and also admit that the defendant is one of the reputed companies in construction works. He admit that
B.Venkatramireddy, Hariprasad Reddy, Y.M.Reddy the team of engineers were supervising the construction work made by the defendant. They are also submitted their reports periodically to the plaintiff. Venkatramireddy was releasing the payments. He has not visited the works carried out by the defendant. His engineers have not raised any objection either with quality or quantity of the work. He has not raised any objection when he signed the cheques issued to the defendant. His technical people also did not raise any objection for execution of the work. He admitted that where some defects were pointed out they were carried out by the defendant. He admits that no written request was made to carry out any defective work He stated that he would produce evidence for spending Rs.14,08,745/-. But he failed to produce any evidence in that regard. He has deposed that he got the work estimated by a charted engineer for spending additional expenditure. But no such estimates are filed. The plaintiff has not produced any bills or any evidence for spending above said amount for rectifying collapsed or damaged structures. None of the engineers who supervise the work is examined. So, plaintiff failed to prove that it has incurred Rs.14,09,745/- for rectification of the collapsed or damaged structures.
29. The plaintiff is claiming Rs.5,26,874/- estimated additional expenditure for rectification of damaged feeder canals, inlets and outlets of shrimp culture ponds for the sections A to F. The plaintiff also estimating an additional expenditure of Rs.88,95,000/- towards the 28 repairs of wall reconstructed, Larvae building, administrative building, service building, algae building, road work, main feeder and minor feeders, processing plant, feed mill, inlets and outlets of shrimp culture for ponds in Section A to F.
30. During the pendency of the suit, the plaintiff filed a petition for an appointment of commissioner to inspect the shrimp culture of plaintiff to note the defective constructions, use of inferior material and also to note the damages that were caused. C.W.1
Sri.D.Hanumantha Rao, a Senior Advocate of this Bar was appointed as Commissioner. The commissioner filed his report in Ex.C.1. The commissioner referred in his report and also in the evidence that in pursuance of the warrant issued to him, he took the assistance of
Sri.A.V.L.Bhujangarao a retired civil engineer and he has examined the various structures with the help of the civil engineer who noted the various damages that were caused to the structures and they were also photographed in Ex.C.2. Sri.Bhujangarao gave his report in
Ex.C.11. He observed with his naked eye that reinforcement steel was found exposed and rusting, there were cracks in the coloumns at some places and honey combing was formed in the concrete at some places.
He also found seepage in the basement floors and he also found leaking of overhead tanks and leaking at several places. He also stated that with the help of C.W.2 he has collected samples of constructions, sent it to Andhra University Engineering college and
S.V.University Engineering college and the experts have examined the samples and gave reports that inferior quality of material was used in making constructions.
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31. C.W.2 Sri.Bhujangarao has deposed in his evidence that
Sri.D.Hanumantha Rao called him and asked him to assist him in execution of the warrant. So, he has visited the structures 19 times, and prepared his report in Ex.C.11. He received in all Rs.38,000/- towards his fees for assisting the commissioner. He has noted down several defects in execution of the work like rusting of steel leakage in the ponds and overhead tanks, cracks in the structures in Ex.C.11. He also deposed that lining and level was not good. He denied the suggestion that he prepared the report as per the direction of the plaintiff and denied that there was no defects in the structures. He stated that the cracks might have occurred due to inferior quality of sand, improper watering, using more thickness of plastering. He denied the suggestion that the defects developed due to non- maintenance of the works.
32. The learned counsel for defendant is contending that C.W.1 was not authorised by the Court to engage a photographer or C.W.2. He was not authorised to collect samples and sent it to Engineering
Colleges for testing. He also contended that the samples were collected without the knowledge of the defendant and further the experts are not examined before the Court. So, the evidence of C.W.1 and C.W.2 has to be rejected. He is further contending that no expert is engaged to calculate the actual damages or inferior structures. The plaintiff gave some schedules. No expert is engaged to calculate and arrive at the alleged damages or loss caused on account of defective constructions. So, plaintiff could not substantiate their claim and therefore, he is contending that suit of the plaintiff is to be dismissed.
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33. The plaintiff requested the Court to appoint a Commissioner.
C.W.1-D.Hanumantha Rao, Senior Advocate of Nellore Bar was appointed as Commissioner. It was specifically mentioned in the warrant, he was authorised to take the assistance of technical hand.
In pursuance of the same, he engaged C.W.2. When the commissioner was asked to note down the defective constructions it is implied that he can engage even a photographer to photograph the actual defects.
So, there need not be special permission from the Court to take the services of the photographer. The Commissioner with the help of
C.W.2 has inspected the constructions for several days and on the request of plaintiff counsel, the commissioner photographed the defects and he has produced the photographs in the Court. This Court is of the considered view that photographer need not be examined to prove the photos as the commissioner appointed by the Court has produced before the Court and deposed that they are the photos taken at his instance. So, this Court is of the considered view that commissioner has not exceeded his power in allowing and taking assistance of the photographer or engaging C.W.2 to find out the defective constructions.
34. C.W.1 admits in the cross examination that he has not specifically issued any notice either to the defendant or to his advocate fixing a date and time for collection of the samples of constructed materials. So, he admits that he has collected the samples without intimating the defendant or his counsel. As I see from the report, even though Commissioner was issuing notices, neither the defendant nor his counsel visiting the place along with the commissioner and assisting him. As per the warrant, the 31 commissioner can make physical verification and also take help of the technical assistants to find out whether the constructions were defective or not. The commissioner can sent the samples for experts.
But at the time of collecting the samples, he should have given a specific notice to the defendant that he was going to collect the samples for sending the same to experts and requesting the defendant to be present at that time. So, the samples were collected in the absence of the defendant and without prior permission to the defendant. So, that portion of the report of the commissioner cannot be used as evidence.
35. In this case, the commissioner sent the samples to Andhra
University Engineering College, S.V.University Engineering College and they have sent the reports also. The reports are marked through the commissioner. The experts are not examined by the plaintiff. So, reports cannot be straight way accepted when the reports are not proved through the experts. So, collection of the samples by the commissioner without the notice to the defendant and the reports of the experts cannot be accepted, as the expert not examined in the
Court, they have to be cross-examined by the defendant.
36. When the photos in Ex.C.2 and when the report of C.W.2 in
Ex.C.11 are perused, there are several defective constructions. The reinforced steel used in the constructions were found rusted. There was leakage from the ponds and tanks on account of defective lining, the water was stagnated here and there. At some places, the polythene paper was used to prevent falling of the leaking water into the premises. When all the above said aspects are considered, there 32 were defects in the constructions, some substandard material appears to be used inspite of condition in Ex.B.4 that the material shall be used only on satisfying by the executive staff of the plaintiff.
37. The learned counsel for defendant is contending that the constructions were made very near to Bay of Bengal. The constructions were made on sand. The sand available near sea shore was used for construction. Further the plaintiff was using the constructions from 1995 onwards. On account of use of salty water the damages would bound to occur. The defendant was to look after the maintenance only for one year. The commissioner inspected the constructions after four years. So, due to improper maintenance, these defects would have occurred.
38. It is a fact that constructions were within two furlong from the sea shore. The constructions were made on sandy soil. On account of erosion cracks may develop in the constructions. On account of use of salty water, the steel will be rusted. So, some defects may develop due to non-maintenance or for erosion of soil. But some of the defects pointed out by the C.W.2 were only construction damages. So, on overall consideration of Ex.C.11, this Court is the considered view that the defendant used some substandard material and constructions were also inferior in quality and perfunctory.
39. This Court has to evaluate how much extent of constructions was defective, what was the value of that construction and what was the total value of the defective construction and and what damages should be awarded to the plaintiff.
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40. The plaintiff has given schedules in the plaint. With regard to shortage of constructions, the probable amount required for reconstruction or repairs and thereby estimated several amounts in in the suit claim.
41. C.W.1 and C.W.2 have only noted the defect during the inspection. They have not estimated the value of the defective constructions or damages or estimated the amount that is required to rectify the damages or to replace the defective constructions.
42. P.W.1 is the Managing Director of plaintiff. He has produced the documents and gave his chief affidavit. He has stated that in spite of oral request the defendant has not rectified the defects. The same is not proved by the evidence. He has admitted in the cross examination that he has not inspected the place of construction. Engineers were engaged by the plaintiff to monitor the work. None of them are examined. Prior to 1.6.98 nobody pointed out the defects either in the constructions or use of inferior material. There was correspondence between the parties, but these defects were not pointed out.
Admittedly some work was not finished, as it was left out. So, P.W.1 is not an expert and the experts appointed by him to look after the work are not examined. He has not estimated the defective constructions or damages caused by appointing any expert. Except filing the schedules with some calculations, they have not substantiated before the Court to arrive at an exact amount that has to be awarded for defective constructions or constructions being damaged on account of inferior quality of material used or for reckless constructions. So, material is not placed before the Court to exactly assess the amount that are 34 required to rectify the defects or to repair the defects. So, in such a situation how the Court can assess the damage to be paid to the plaintiff.
43. The plaintiff failed to prove the loss sustained in the crop due to defective constructions. It has not produced any bills for spending the amounts for rectification. The plaintiff could alone prove through C.W.1 and C.W.2 some defective constructions.
44. The liability of the plaintiff to pay Rs.100 lakhs to the defendant is entirely different from assessing the damages for defective constructions. So, admission of claim of Rs.100 lakhs due to defendant is entirely different. The plaintiff is claiming the damages for improper constructions, defective constructions, cracks developed, the leakage developed, rusting of steel used etc. This Court is not supplied with data which is acceptable to arrive at the exact amount that has to be spent for rectifying several defects. On perusing the photos in Ex.C.2, and considering the report in Ex.C.11, this Court only estimates the damages as token and feels an amount of Rs.10 lakhs can be awarded towards damages and defective constructions. I am sure that the estimation is only a conjecture and it is not exact estimation. The
Court finds several defects were there in the constructions. The defective constructions can be estimated by only an expert even though plaintiff gave his figures in the schedule of plaint, they are not substantiated. So, the hands of Court are tied in correctly assessing the actual damages. So, looking at Ex.C.2 and Ex.C.11, this Court wanted to award a token damages of Rs.10 lakhs. So, this Court 35 records finding that plaintiff is entitled for a sum of Rs.10 lakhs as damages. This issue is answered accordingly.
45. Issue No.4. In view of the findings recorded on Issue No.1 to 3, the plaintiff is entitled for damages of Rs.100 lakhs with subsequent interest at 12% per annum from the date of suit till the date of realisation.
In the result, the suit is partly decreed directing the defendant to pay token damages of Rs.10 lakhs to the plaintiff with subsequent interest at 12% per annum from the date of suit till the date of realisation. In the special circumstances, each party do bear their own costs.
Dictated to Personal Assistant, transcribed by her, corrected and pronounced by me in
open Court, this the 2nd day of April, 2012.
I ADDL. DISTRICT JUDGE,
NELLORE
Appendix of Evidence
Witnesses examined. For Plaintiff For Defendants.
P.W.1: Sabbella Prasada Reddy. D.W.1: M.Srinivasa Murthy. D.W.2: M.Suryanarana Raju Court Witnesses:
C.W.1: Sri.D.Hanumantha Rao. C.W.2: AVL Bujangarao.
Documents Marked
For Plaintiff:
Ex.A.1 : Memorandum and articles of Association of the plaintiff's company. Ex.A.2: Annual report o f the plaintiff company for the year 1995-96. Ex.A.3: Annual report of the plaintiff company for the year 1996-97. Ex.A.4: Layout and details of tanks in aqua culture project of the plaintiff company at Venkannapalem. Ex.A.5: The larvae building plan.
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Ex.A.6: The plan of layout Brood stock,, Larvae and Algae. Ex.A.7: The plan of TRUSS DETAILS OF LARVAE BUILDING. Ex.A.8: The plan of CROSS SECTION OF MAIN FEEDER CANAL. Ex.A.9: The plan of LONGITUDINAL SECTION AND GENERAL PLAN OF MAIN CANAL. Ex.A.10: The plan of R.C.C./BRICK MAIN AND MINOR CANALS DETAILS. Ex.A.11: The plan of farm administration building R.C.Details of Lintal Beams and Staricase. Ex.A.12: The plan of farm Administration building layout and R.C. details of roof, slabs and beams. Ex.A.13: The plan of farm Administration building layout and R.C. details of beams, slabs at 3.150 M LVL. Ex.A.14 The plan of farm Administration building layout and R.C. details of columns, footinfs and plinth beams. Ex.A.15: The plan of administration building sections key plan. Ex.A.16: The plan of administration building first floor. Ex.A.17: The plan of administration building ground floor. Ex.A.18: The plan of processing plant-columns and footing layout. Ex.A.19: The plan of larvae building - Layout & R.C. details of foundation and columns. Ex.A.20: The plan of larvae building - G.A. & R.C. details of plinth beam (Sheet 1 of 2). Ex.A.21: The plan of larvae building G.A. & R.C. details of plinth beams (sheet 2 of 2). Ex.A.22: The plan of larvae building - Sections. Ex.A.23: The plan of larvae building - Doors & Window details. Ex.A.24: The plan of larvae building - G.A. & R.C. details of roof, beams and slab (sheet 1 of 2). Ex.A.25: The plan of larvae building - G.A. & R.C. details of roof, beams and slab (sheet 2 of 2). Ex.A.26: The plan of cross section of minor feeders. Ex.A.27: The plan of longitudinal section of minor Feeders - 1/2. Ex.A.28: The plan o f larvae building excavation plan sections and miscellaneous details. Ex.A.29: The plan of larvae building elevations. Ex.A.30: The plan of larvae building part plan - sheet 1 of 2. Ex.A.31: The plan of processing plant dormitory ground floor. Ex.A.32: The plan of processing plaint at + 4.0 M LVL. Ex.A.33: The plan of Feed mill R.C. details of columns and typical details. Ex.A.34: The plan of feed mill R.C. details of columns and typical details. Ex.A.35:The plan of G.A. & R.C. details of columns and footing of canteen & General Kitchen building. Ex.A.36: The plan of Canteen and Central Kitchen elevations & Section A.A. Ex.A.37: The plan of canteen & central kitchen R.C. details for water tank and tie beams. Ex.A.38: The plan of service building hatchery plan and section. Ex.A.39: the plan of Algae building plan and section. Ex.A.40: The plan of algae build, excavation plan - Sections and miscellaneous details. Ex.A.41: The plan of algae building layout and R.C. details of footings, columns and plinth beams. Ex.A.42: The plan of algae building - General arrangement elevation and R.C. details of beams. Ex.A.43: The plan of algae buildings - Truss details. Ex.A.44: The plan of algae building layout and R.C. details of tanks. Ex.A.45: Payment schedule of plaintiff company. Ex.A.46: Negatives numbering 80. Ex.A.47: Photos numbering 80. Ex.A.48: Office copy of legal notice dt:1.6.98. Ex.A.49: Postal acknowledgment dt:3.6.98. Ex.A.50: Reply notice dt:8.6.98. Ex.A.51: Zerox copy of letter of intent issued by the plaintiff dt:11.1.94.
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Court Documents:
Ex.C.1: Commissioner's report. Ex.C.2: Photo Albums consisting 14 in number. Ex.C.3: Receipt issued by the photographer. Ex.C.4: Test report issued by S.V.University Engineering College, Tirupati. Ex.C.5: Receipt issued by S.V.University College of Engineering, Tirupati. Ex.C.6: Receipt issued by Andhra University, College of Engineering, Vizag. Ex.C.7: Test report issued by Andhra University College of Engineering, Vizag. Ex.C.8: Receipt issued by Department of Civil Engineering, Andhra University, Vizag. Ex.C.9: Receipt issued by the Department of Civil Engineering, Andhra University, Vizag. Ex.C.10: Counterfoil of savings bank account pay-in-slip evidencing fro payment of Rs.1,250/- relating to S.V.University, Engineering College, Tirupati. Ex.C.11: Report of A.V.L. Bhujangarao, Retired Engineer in Technical Hand. Ex.C.12: Receipt issued by Sri.A.V.L.Bhujangarao, Retired Engineer in token of his fee of Rs.38,000/-.
For Defendant:
Ex.B.1/12.6.2002: Attested copy of General Power of attorney executed by the defendant company in favour of Sri.M.V.Srinivasa Murthy.' Ex.B.2/15.3.1996: C.C. of resolution passed by the Board of Directors of the defendant company. Ex.B.3/11.1.1994: C.C. of letter intent issued by the plaintiff to the defendant. Ex.B.4/31.0.3.1994: Attested copy of work order issued by plaintiff to the defendant. Ex.B.5/21.08.1995: C.C. of letter sent by the plaintiff to the defendant. Ex.B.6/27.11.1995: Attested copy of letter sent by the plaintiff to the defendant. Ex.B.7/25.1.1996: C.C. of cheque bearing No.052421 issued by the plaintiff in favour of defendant. Ex.B.8/1.2.1996: C.C. of cheque bearing No.052422 issued by the plaintiff in favour of defendant. Ex.B.9/5.2.1996: C.C. of cheque bearing No.052423 issued by the plaintiff in favour of defendant. Ex.B.10/10.2.1996: C.C. of cheque bearing No.052424 issued by the plaintiff in favour of defendant. Ex.B.11/15.2.1996: C.C. of cheque bearing No.052425 issued by the plaintiff in favour of defendant. Ex.B.12/20.2.1996: C.C. of memo issued by Bank of Baroda Alwarpet Branch, Chennai. Ex.B.13/20.2.1996: C.C. of cheque bearing No.052426 issued by the plaintiff in favour of defendant. Ex.B.14/22.2.1996: C.C. of memo issued by Bank of Baroda, Alwarpet Branch, Chennai. Ex.B.15/25.2.1996: C.C. of cheque bearing No.052427 issued by the plaintiff in favour of defendant. Ex.B.16: C.C. of memo issued by Bank of Baroda, Alwarpet branch, Chennai. Ex.B.17/3.3.1996: C.C. of cheque bearing No.052428 issued by the plaintiff in favour of defendant. Ex.B.18/5.3.1996: C.C. of memo issued by Bank of Baroda, Alwarpet branch, Chennai. Ex.B.19/1.3.1996: C.C. of cheque bearing No.052429 issued by the plaintiff in favour of defendant. Ex.B.20/12.3.1996: C.C of memo issued by Bank of Baroda, Alwarpet Branch, Chennai. Ex.B.21/15.3.1996: C.C. of cheque bearing No.052430 issued by the plaintiff in favour of the defendant. Ex.B.22/20.3.1996: C.C. of cheque bearing No.052431 issued by the plaintiff in favour of the defendant. Ex.B.23: C.C. of memo issued by Bank of Baroda, Alwarpet branch, Chennai. Ex.B.24/25.3.1996: C.C. of cheque bearing No.052432 issued by the plaintiff in favour of defendant. Ex.B.25: C.C. of memo issued by the Bank of Baroda, Alwarpet Branch, Nellore.
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Ex.B.26/31.3.1996: C.C. of cheque bearing No.052433 issued by the plaintiff in favour of defendant. Ex.B.27: C.C. of memo issued by the Bank of Baroda, Alwarpet Branch, Chennai. Ex.B.28/6.2.1996: Attested copy of office copy of notice issued by the defendant to the plaintiff through M/s.Singhania & Company. Ex.B.29/2.3.1996: C.C. of office copy of notice issued by the defendant to the plaintiff. Ex.B.30/5.3.1996: C.C. of acknowledgment signed by the plaintiff. Ex.B.31/15.3.1996: C.C. of reply sent by the plaintiff to M/s.Singhanias & Company. Ex.B.32/28.3.1996: Attested copy of reply notice sent by the plaintiff to the Singhanis & company. Ex.B.33/3.4.1996: C.C. of office copy of regd. notice sent by the defendant to the plaintiff. Ex.B.34/4.5.1996: C.C. of letter from postal department intimating delivery. ExB.35/11.4.1996: C.C. of office copy of regd.notice issued by the defendant to the plaintiff. Ex.B.36/12.4.1996: C.C. of postal acknowledgment signed by the plaintiff. Ex.B.37/22.4.1996: Attested copy of reply sent by the plaintiff to the defendant. Ex.B.38/24.4.1996: Attested copy of letter sent by the plaintiff to the defendant. Ex.B.39/8.4.1996: Original letter sent by the plaintiff to the M/s.M.S.Hatcheris, Madras. Ex.B.40: 8th Annual report of the plaintiff for the year 1997-98. Ex.B.41: 9th Annual report of the plaintiff for the year 1998-99. Ex.B.42: 10th Annual report of the plaintiff for the year 1999-2000. Ex.B.43/27.11.2002: Attested copy of application submitted by the plaintiff company. Ex.B.44/30.7.1996: Original statement of account sent by the plaintiff to the defendant. Ex.B.45/12.8.1996: Original letter sent by the plaintiff to the defendant. Ex.B.46/8.4.1996: Original letter sent by the plaintiff material reconciliation statement up to 25.3.1995. Ex.B.47/30.11.1994: Original R.A. bill No.8. Ex.B.48/31.1.1995: Original letter of the plaintiff along with abstract of bills upto 8th R.A.Bill. Ex.B.49/8.3.1996: Original letter of the plaintiff along with 9th R.A. Bill. Ex.B.50/13.3.1995: Original letter of the plaintiff along with 10th R.A. Bill. Ex.B.51/23.3.1995: Original letter of the plaintiff along with 11th R.A. Bill. Ex.B.52/22.4.1995: Original letter of the plaintiff along with original statement 12th R.A. bill. Ex.B.53/24.5.1995: Attested copy of letter sent by the plaintiff to the defendant along with 13th R.A. Bill. Ex.B.54/12.7.2005: C.C. of statement of account of the plaintiff bank account with Bank of Baroda, Alwarpet Branch, Chennai. Ex.B.55/12.7.2005: Original letter of the advocate for the defendant regarding status of the appeals of the defendant.
I ADDL. DISTRICT JUDGE,
NELLORE
Typed by : K.Mahitha. Read by : Seethalakshmi. Compared by : Nagendrakumar.