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TMI Blog2010 (6) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... interest thereon at 10 per cent. per annum from the date of the statutory notice. In the event the petitioner fails to file the suit within the time permitted notwithstanding the security having been furnished by the company, the company will have liberty to mention the matter upon notice to the petitioner for the security to be directed to be immediately released. - C.P. NO. 292 OF 2009 - - - Dated:- 16-6-2010 - SANJIB BANERJEE, J. Tilok Bose, Sourya Sadhan Bose and Soumitra Dutta for the Petitioner. Utpal Bose and D.N. Sharma for the Respondent. JUDGMENT Sanjib Banerjee, J. The petitioner claims as an unpaid creditor on account of services rendered. The petitioner was engaged for carrying out electrical works at leisure villas being constructed by the company in the sylvan surroundings near Rishikesh in the Garwal Himalayas. The agreement was executed on December 21, 2005. 2. The petitioner says that though the agreement specified a completion date, the electrical work could not be taken up as originally contemplated since the civil work had not been completed within time. The company claims at the hearing that there was delay on the part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The petitioner claims that a debit-note was thereafter raised on the company on or about May 8, 2008 to reflect the enhanced rates after the contract completion date. A copy of the debit-note appears as annexure C (page 54) to the petition. There is no denial that such debit-note was received by the company without any immediate grievance. By a letter of May 21, 2008 the petitioner informed the company that it had accomplished the targeted tasks and had demobilised from the site. The petitioner requested for appropriate gate-pass to be issued to enable the petitioner to remove the petitioner's material from the site. Prior to such letter, the petitioner forwarded two sets of its final bill dated May 8, 2008 to the site office of the company under cover of a letter dated May 9, 2008. The endorsement on the letter reveals that the company's site office forwarded the same to its head office. 7. On May 19, 2008 the petitioner issued an electronic mail informing the company that the petitioner had executed the work till May 13, 2008 and final measurements had been certified by the company's site engineer. The petitioner says that there was no complaint by the company as to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f May 23, 2008 and suggested that the payment of Rs. 10 lakh on November 5, 2008 was as per the terms of the minutes of the meeting for items of work completed within time. The company asserted that not only was no further amount due to the petitioner, it was the company which was entitled to be compensated by the petitioner. 11. Two aspects of the matter stand out from the company's answer to the statutory notice. There is no explanation in the letter as to why the stand taken therein was not reflected in the previous correspondence exchanged between the parties ; as to why the two written demands of August, 2008 passed without any response and as to why the petitioner's statement in its e-mail message of December 16, 2008 that the payment of Rs. 10 lakh of November 5, 2008 was an ad hoc release of the amount due to the petitioner remained uncontroverted prior to the reply to the statutory notice. The other feature of the company's reply to the statutory notice is the colossal failure therein to refer to a letter of May 26, 2008 which the company has now set up as its sheet-anchor. 12. A copy of the letter said to have been issued by the company to the petitioner on May 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "This refers to our email dated May 23, 2008 wherein we have expressed our concern about withdrawal of your team from the site without completing the work as per the contract. All along you have been assuring us that you would be completing the work, therefore this sudden action has put us in a difficult situation. Our project is in the final stages of handing over and your non co-operation will result in colossal financial loss. Please confirm that you would be deputing your team at the site immediately. We have scrutinised the final bill prepared by you for the work carried out at the site. We are shocked to note that you have billed 100 per cent. for many items of work without completing the same. We, therefore, strongly refute the amounts claimed by you in the final bill. The attached list shows the pending works which must be completed without any further delay. We shall appreciate your co-operation in this regard and would expect you to complete the works so that your final bill could be processed for payment." 15. The contents of such document ring a jarring note. Notwithstanding the electrical work not being completed even a year after the schedule date of completi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim in a suit that may be brought by the petitioner, subject to the company furnishing security in respect of the principal claim of the petitioner in the sum of Rs. 37,33,055. In the event such security is furnished within a period of four weeks from the date before the Registrar, Original Side, the claim of the petitioner will stand relegated to a suit and the security will stand to the credit of the suit that may be brought by the petitioner within a period of ten weeks from date. The company will furnish the security upon intimation to the petitioner and the Registrar, Original Side, will make a fixed deposit of the money in a nationalised bank within the vicinity of this court. 18. Upon the security being furnished as directed, C. P. No. 292 of 2009 will remain permanently stayed. The observations in this order should not prejudice either party to the proposed suit. 19. In default of the security being furnished within the time permitted, the petition will stand admitted for the principal sum of Rs. 37,33,055 together with interest thereon at 10 per cent. per annum from the date of the statutory notice. In such event the petitioner will advertise the petition in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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