JUDGMENT :

C. Saravanan, J.

Prayer: Original Side Appeal filed under Order XXXVI Rule 9 of O.S. Rules r/w Clause 15 of the Letters Patent, to set aside the Judgment and Decree dated 31.01.2019 passed in Application No.6958 of 2018 in C.S.No.632 of 2018.

The appellant is the defendant in C.S.No.632 of 2018. The said suit has been filed by the respondent to recover a sum of Rs.1,31,19,604/- from the appellant along with interest at the rate of 18% per annum from date of plaint till date of realization.

2. The suit was numbered as a “commercial dispute” within the meaning of Section 2(c)(vi),(vii) and (xviii) read with Section 12 Commercial Courts Act, 2015.

3. In the said suit, the respondent filed an Application No.6958 of 2018 under Order XIV Rule 8 of O.S Rules r/w Order 12 Rule 6 of CPC for judgment and decree on admission for a sum of Rs.1,31,19,604/- which has been partly allowed by the learned Single Judge vide the impugned order dated 31.01.2019 to the extent of Rs.72,48,440.

4. The said application was filed on the strength of a final invoice/bill dated 31.03.2013 [suit document No.2] raised by the respondent/plaintiff on the appellant/defendant for the residual work done and supplies effected for a sum of Rs.86,42,840/- (Rs.72,48,440 + Rs.13,94,400 = Rs.86,42,840) wherein the aforesaid sum of Rs.13,94,400/- represented the service tax which was paid by the appellant on reverse charge basis on 28.09.2013 under a Turnkey Construction contract dated 24.08.2009.

5. The case for admission of liability is on the strength of the alleged acknowledgment of amounts due under the aforesaid final bill dated 31.03.2013 vide suit document No.2 and voluntary payment of service tax by the appellant on reverse charge basis on 28.09.2013 vide suit document No.3 to the credit of the Central Government.

6. Facts relevant to the case is that the appellant and the respondent had entered into a turnkey agreement dated 24.08.2009 pursuant to which the respondent was awarded a turnkey contract to construct multi storeyed residential complex called 'Amber'. The respondent had executed a works Contract under the aforesaid agreement and raised bills from time to time.

7. After the completion of work, the respondent/plaintiff raised a suit document No.2 viz. the final invoice/bill dated 31.03.2013 for a sum of Rs.86,42,840/- inclusive of the service tax of Rs.13,94,400/. The said final invoice/bill was received and accepted by Shri Shreyans Lunwadh of the Appellant.

8. The above amount was allegedly arrived after adjusting the payments already received. Meanwhile, the appellant remitted the service tax of Rs.13,94,400/- on 28.09.2013 vide Suit Document No.3.

9. The appellant however neglected and failed to honour the billed/invoiced amount of Rs.72,48,440 though several reminders were sent by the respondent and the exchange of communication between them. These were filed as suit documents.

10. Since the appellant failed to pay the amounts due to the respondent under the aforesaid final invoice/bill dated 31.03.2013, the respondent issued a statutory notice dated 27.07.2016 under Section 433(e) of the Companies Act, 1956 to wind up the Appellant company and demanded Rs.72,48,440/- [Rs.86,42,840 - Rs.13,94,400/-] after deducting the service tax paid by the appellant.

11. The respondent thereafter proceeded to file C.P.No.361 of 2016 before this Court on 20.09.2016. The said company petition was later transferred to the National Company Law Tribunal, Chennai and renumbered as CP/355/(IB)/2018.

12. During the pendency of the aforesaid proceedings, the appellant filed C.S.No.59 of 2018 on 22.09.2016 for the following reliefs against the respondent and others:-

i. Rs.10,55,760/- towards excess amount paid, along with future interest at the rate of 24% per annum on Rs.10,55,760/- from the date of plaint till realization;

ii. Rs.1,11,98,807.90/- towards amounts spent towards the completion of incomplete work and rectification of defective works, along with interest @ 24%