MECON LIMITED Vs. PIONEER FABRICATORS LTD

JUDGEMENT

(1.) FOR the reasons stated in the application the delay of 45 days in filing the review application is condoned. Rev.Pet. No.472/2012 FAO(OS) 89/2008, laying a challenge to the order dated November 21, 2007 passed by the learned Single Judge disposing of OMP No.473/2006 was disposed of by us on May 15, 2012. The appeal was partially allowed. Review of said order dated May 15, 2012 is prayed for vide RP No.472/2012; stating that there is an error apparent on the face of the record as per facts noted in paragraph 16, 24, 29 and 30 of the order sought to be reviewed, in that, it is alleged that it has wrongly been noted (as a fact) that the ,,No Claim Certificate dated February 14, 2003 was without demur i.e. was not under protest.

(2.) TO understand the reason for the review we simply note that one of the issue which arose for consideration pertained to accord and satisfaction and it is in this context the issue of the ,,No Claim Certificate being unconditional i.e. without demur or whether it was a result of coercion and hence under protest arose for consideration.

(3.) IT was further noted that out of the five sites possession of four was handed over on June 06, 2000 and thus qua said four sites the work had to be completed by August 25, 2000 and the remaining one site was handed over on July 12, 2000, requiring the work to be completed at said site by September 30, 2000. It was noted that during execution of the works, Mecon required Pioneer to execute 31 extra items of work and this obviously required the parties to sit across the table and decide the price, to be paid to Pioneer, for having executed the said 31 extra items of work. It was further noted that the parties were a little unofficious in their dealings. They did not sit across the table and decide the price at which extra items, got executed, were to be paid for. The work progressed and was completed by October 31, 2001 at all the sites. Thus, it was noted that it was apparent that qua four sites, possession whereof was handed over on June 06, 2000, for which the works had to be completed by August 25, 2000, the delay was 14 months and for the fifth site, possession whereof was handed over on July 12, 2000 and for which the works had to be completed by September 30, 2000, the delay was of 13 months. It was further noted that as the work progressed, interim bills were raised and running payments released from time to time. This was obviously subject to the works being measured upon completion, since payment had to be made with reference to each item of work with reference to the Bill of Quantities and pertaining to the extra items of work, as per measurements recorded, and at the rate agreed. It was further noted that notwithstanding the works being completed by October 31, 2001, the parties showed no sense of urgency to finalize the issue of payment to be made. Correspondence was exchanged on the subject of the price to be paid for the extra items. Rival versions for the rate, as sought by Pioneer and as offered to be paid by Mecon, find a mention in the said correspondence. It was noted that consensus eluded the parties, requiring a meeting across the table to be held and this took place on August 07, 2002. A rate-list, running into three pages was drawn up pertaining to the 31 extra items of work executed, detailing each extra item of work; the rate claimed by Pioneer; the rate offered by Mecon and the rate which was ultimately agreed to be received by Pioneer. The said document was not only signed by the representative of both parties, but additionally had an endorsement by Pioneer as under:-