The main legal point established is that a plaintiff may be entitled to extra-work claims based on actual work executed, and objections raised without evidence may lack basis.

ORDER:

Shree Chandrashekhar, J.

The judgment in Original Suit No. 7 of 2017 passed by the Commercial Court at Dhanbad has been challenged by M/s INDICON Westfalia Limited (in short, defendant-company) by filing the present commercial appeal under section 13(1-A) of the Commercial Courts Act, 2015.

2. Original Suit No. 7 of 2017 was instituted for a money decree for Rs.1,77,39,940.96/- including taxes and interest @ 12% per annum w.e.f 1st January 2014. In the suit the plaintiff has examined himself as PW1 and laid in evidence work order vide Exhibit-1, amended work order vide Exhibit-2 and running bills and letter dated 23rd September 2013 to claim a money decree. Arindam Dutta who was the authorised signatory of the defendant-company was examined as DW1 and he has proved 20 documents including general and special conditions of contract, work order no. BW/KPO/002907/481/12-13/000681, original MOM dated 19th September 2012 etc. to resist the money claim made by the plaintiff, and to support the counter-claim to the tune of Rs. 31,19,727/-.

3. The plaintiff who is the respondent before us has pleaded that a work order dated 1st November 2012 was issued for execution of civil foundation works in two mines at Katras and Keshargarh. The work order was amended vide order dated 6th May 2013 and the scope of the work was enlarged and extended to the mines at Katras, Keshargarh and Kusunda. The initial cost for the work order dated 1st November 2012 was Rs.1,37,00,000/-which was enhanced to Rs.2,05,50,000/-after the civil work for the 3rd mine was included in the amendment order dated 6th May 2013. According to the plaintiff, the running bills were raised but payment was made after deductions on various counts. The running bills contained details of the work executed and the same was supervised and verified by the agent of the defendant-company who put his endorsement to the effect that “measurement has been certified and found OK”.

4. The plaintiff has claimed that it completed the amended work order dated 6th May 2013 but the defendant-company did not pay about half of the amount payable to it which was to the tune of Rs.1,38,97,831.92/-. On the contrary, the defendant-company was pressurizing the plaintiff to hand over the work site without making any further payment and, therefore, a meeting was held on 5th October 2013 between the plaintiff and the Marketing Manager of the defendant-company and it was agreed that Rs.30,00,000/-shall be paid on 7th October 2013 towards the work executed at Kusunda mining. However, no payment was made by the defendant-company and the officials of the defendant-company took forcible possession of the three sites in December 2013. The plaintiff has further pleaded that to mask the forcible possession of the three sites taken over by the defendant-company, letter dated 3rd January 2014 was issued to him requiring him to hand over possession of the three sites.

5. While the dispute between the parties continued, the plaintiff was asked to come for a meeting in the 3rd week of May 2016 at Kolkata office of the defendant-company. Accordingly a meeting was held on 31st May 2016 in which the plaintiff was assured of a final decision. On 6th June 2016 a letter was written by Pradip Kumar Paul who was the Manager (Procurement) of the defendant-company asking the plaintiff to submit documents such as approval for extra-work, challans for PF & ESIC and statement for working months and virtual completion certificate for Katras. Constrained, the plaintiff issued legal notice on 13th October 2016 seeking refund of Rs.98,51,561.63/-and statutory taxes such as service tax, sales tax etc. with interest @ 12% per annum from 1st January 2014. On 2nd November 2016 the defendant-company denied its liability to pay the aforesaid due to the plaintiff.

6. The defendant-company contested the suit by filing written statement raising a plea of bar under section 11 of the Commercial Courts Act on the ground that the Principal Office o