TMI Blog2018 (5) TMI 1834X X X X Extracts X X X X X X X X Extracts X X X X ..... or the entire bill amount, there can be no justification in withholding the outstanding payments. The witness of the Defendant categorically admits that this contract was not a part of the work order between the Plaintiff and the Defendant. Though the electrical inspector’s approval is required for all installations, Clause 1.1 (h) does not fix the burden of obtaining the inspector’s approval upon the Plaintiff/Contractor. As stated by the Plaintiff’s witness, it was the Defendant’s responsibility and in fact the Defendant had paid the fee required for obtaining the electrical inspector’s approval. It is clear that it was the Defendant’s responsibility to get the approval of the electrical inspector. Appeal dismissed - decided against appellant. - RFA 515/2015 - - - Dated:- 15-5-2018 - JUSTICE PRATHIBA M. SINGH For the Appellant : Mr. Tarkeshwar Nath and Mr. Onkar Nath, Advocates. For the Respondent : Mr. Deepak K. Sharma, Mr. Ashish Sharma and Ms. Gauri Kaushik, Advocates. JUDGMENT Prathiba M. Singh, J. 1. The present appeal arises out of the judgment and decree dated 29th April, 2015 by which the Plaintiff/Respondent's (hereafter Plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder which stipulates that the payment shall be made as per the actual executed quantities duly certified by REL and Unit Rates enclosed at Annexure II. The Defendant raised a counter claim for a sum of ₹ 63,52,193/-. According to the Defendant, the total sum payable to the Plaintiff is only ₹ 62,32,159/- out of which amounts of TDS of ₹ 1,74,239/- and Work Contract Tax of ₹ 2,01,890/- are adjustable. Apart from these, ₹ 2,62,492/- towards Watch and Ward amount and ₹ 23,706/- towards material shortage recovery were retained. Thus, the Defendant claims that the total amount, which has either been paid or deducted/adjusted towards the aforesaid heads is ₹ 63,52,193/- In light of this, it is the Defendant who is entitled for a refund from the Plaintiff as excess payments of ₹ 1,20,034/- have been made. 5. The following issues were framed in the suit on 7th December, 2010. 1. Whether the plaintiff is entitled to a decree for recovery as prayed for? OPP 2. Whether the defendant is entitled to a decree for counter claim as prayed for? OPD 3. Whether the plaintiff is entitled to any interest as prayed for? OPP 4. Whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact deposited the fees for inspection by the electrical inspector. If the project was not completed, inspection by the electrical inspector could not have been asked for. Inspection is done only prior to commencement of the distribution through the installed systems. 10. DW-1 admitted that TDS was deducted on the running bills and the TDS certificates were given. He admitted that the total billed amount on which TDS was deducted was ₹ 77,58,011/-. His admissions are significant and are extracted hereinbelow: ....I do not know if the electric is installed by the plaintiff is in working order or not. It is correct that defendant had deposited the money for inspection by electrical inspector...... 11. DW-2 who was the Chief Manager (HR) admitted that the Plaintiff was not a party to the agreement between Defendant and REL, however, Plaintiff was aware of the terms and conditions of the said agreement. He also admitted that he was not aware of any letter written by the Defendant Company to the Plaintiff regarding the quality of the work done. He did not even have knowledge if the electricity had started flowing in the distribution system set up by the Plaintiff. He, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 65 to 69 of the Electricity Rules, that the fees for inspection by the electrical inspector is paid. Thus, the fact that the Defendant had deposited the fee for the electrical inspector to conduct inspection showed that there was no shortcoming in the work executed by the Plaintiff. 15. The Defendant cannot rely on a mere non-certification by the REL at its own whims and fancies to deprive the amount due to the Plaintiff. There has to be some justification for the Defendant to withhold the payment. Till the suit was filed by the Defendant, there was no grievance raised by the Defendant whatsoever as to the work which was executed. None of the three witnesses of the Defendant had any technical knowledge of the work executed, and also did not point out any shortcomings in the same. All the three witnesses were either related to accounts, finance or HR department, and none of them had any justification or plausible explanation for the non-payment. REL is a third party. The work order was placed by the Defendant and the primary responsibility of the payments vests on the Defendant. If the Defendant had a grievance with the work, the same ought to have been raised with the Plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wledge the deduction of tax at source. The judgement dated 27th November, 2012 in Bigdot Advertising Communications Pvt. Ltd. v. Union of India [CS(OS) No.226/2000] was dealing with the question of the person who is liable once the TDS certificate is issued. It is not a precedent on the proposition that if a TDS certificate is issued, it amounts to admission of liability. In light of this, though the deduction of TDS by itself cannot be sufficient to impose liability, but on a totality of facts it is clear that the defendant is liable. 20. A perusal of the evidence and the pleadings on record clearly shows that the only justification being raised to withhold the payment was non-certification by REL, the obligation of which was not upon the Plaintiff. In the absence of any deficiencies being pointed out in the work executed by the Plaintiff, there can be no justification in withholding payments. The arrangement between the Defendant and its own Joint Venture Partner i.e. REL is an internal arrangement between them, and the Plaintiff cannot be saddled with outstanding amounts in this manner owing to their own internal issues. The Defendant having not led any evidence whatsoever ..... X X X X Extracts X X X X X X X X Extracts X X X X
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