J U D G M E N T

The suit is filed for recovery of money, though the defendant initially represented by the Learned Counsel subsequently there is no representation for the defendant. This Court, on considering the nature of the suit on 15.03.2018 determine the suit claim falls within the definition of Commercial dispute and proceeded, following procedure as contemplated under Commercial Courts Act.

2. On 24.02.2018, the sole defendant set ex-parte since written statement was not filed and no interest shown by the defendant to contest the matter.

3. The plaintiff/Mr.R.K.Mani, Proprietor of the firm M/s.Project Management Services, Chennai, was examined as P.W.1. 45 Exhibits were marked as Ex.P.1 to Ex.P.45.

4. The case of plaintiff is that the plaintiff is a Proprietary Concern, engaged in the business of executing works contract, including civil, mechanical and electrical project works. The Defendant is also a Proprietary concern, carrying on the business of building construction. The plaintiff and the Defendant had commercial relationships. The plaintiff was awarded a civil construction work by M/s.DF Power Systems Private Limited of a 27MW power plant belonging to M/s.Dalmia Cements, at Yadwad Village, Belgaum District, Karnataka. Time limit was fixed for carrying on this project. The Defendant approached the plaintiff and offered services as a special contractor. The plaintiff awarded a work order dated 12.04.2013 to the Defendant. The Defendant was to supply labour for civil structural works. They were also to purchase equipments and tools. Time was the essence for such supply. Terms of payment were also given in the work order dated 12.04.2013. However, even after the receipt of advance of one month payment, the Defendant failed and neglected to commence the work and supply labour. The plaintiff made their own arrangements to avoid delay to make up for the loss of time.

5. It was the further case of the plaintiff that the plaintiff was called upon by their Principal, by email dated 15.05.2013 to immediately mobilise batching plant since foundation casting of the boiler had already been delayed. In turn, the plaintiff sent a series of emails to the Defendant. However, the Defendant failed in his promise to organise the materials and machinery and also failed to maintain the manpower required for the project. Since the Defendant was very slow in executing the work, the plaintiff insisted on performance guarantee. The Defendant completed only 13.29% of the work as against the contract of 60%

between April 2013 and September 2013.

6. The plaintiff was constrained to terminate the work order dated

12.04.2013 by email dated 03.10.2013, since the Defendant had caused repeated breach of obligations, plaintiff called upon the Defendant to return the advance amount and excess payment amounts due to him by emails dated 03.10.2013, 11.10.2013, 18.11.2013, 12.12.2013 and 27.12.2013. In the meanwhile, since the Principal of the Plaintiff demanded that the Plaintiff should settle the payments, the Plaintiff had to make a further payment of Rs.38,94,690/- to the vendors and suppliers on behalf of the Defendant. Consequently, it has been stated that the Defendant was due and liable to pay a sum of Rs.1,02,00,000/- towards the advance amount, a sum of Rs.10,17,232/- towards excess payment and a sum of Rs.38,94,619/- towards payment made to vendors and suppliers, totalling Rs.1,51,11,851/-. The cheques issued by the Defendant towards performance guarantee had been returned by the ICICI Bank on the ground of 'insufficient funds'. The plaintiff had to file C.C.Nos.2146, 2224 and 8229 of 2014 on the file of the FTC-II, Egmore, Chennai. Seeking recovery of the amounts payable and due by the Defendant.

7. The work order given to the defendant are marked as Ex.P.1 &

Ex.P.2. As per the terms of the work order, the plaintiff has tendered an advance of Rs.72 lakhs being 5% + 5% of the total contract value of Rs.7,20,00,000/-. From the communications through