BLUE STAR LTD Vs. UNISON HOTELS LTD

JUDGEMENT

(1.) By way of this application under Order VII Rule 11 read with Section 151 CPC, 1908, the Defendant seeks rejection of the plaint on the ground that the present suit filed by the Plaintiff is barred by limitation.

(2.) Before dealing with the present application, it would be necessary to give a brief background of the facts in the present suit. The Plaintiff is a Public Limited Company engaged in the business of installation and commissioning of central air-conditioning plants. In response to the Defendant Company's Notice Inviting Tenders with respect to the execution of heating, ventilation and air-conditioning work for the Defendant's Hotel Project, named Hotel Grand Hyatt, Vasant Kunj, New Delhi, the Plaintiff submitted its bid, which was accepted and an Agreement dated 27.09.1996 was entered into between the parties. The initial contract value was Rs. 8.44 crores, out of which sum the indigenous content was valued at Rs. 4.82 crores. From time to time, the latter value was revised and the final contract value was increased to Rs. 6,62,19,819/- along with ESCALATION CLAIM AMOUNT of Rs. 25,00,000/-, thus aggregating a sum of ' 6,87,19,819/-. In terms of the contract, M/S. LOUIS BERGER INTERNATIONAL INC., 41, Avenue Capucines, Quatre Bornes, Mauritius was nominated to act as a PROJECT MANAGER for "THE WORK" as defined in Clause 1.32 of the SUPPLEMENTARY CONDITIONS to the GENERAL CONDITIONS of the Contract. Clause 14 of the said AGREEMENT set out the TERMS OF PAYMENT, whereunder the "balance 10% of the contract value shall be released against testing and commissioning on pro-rata basis on submission of a Bank Guarantee of 5% issued by Scheduled Bank and valid for the defects liability period." Article 14 of the GENERAL AND SUPPLEMENTARY CONDITIONS to the said AGREEMENT (VOLUME II, EXHIBIT-A) set out the manner and method of "Payments to the contractor and completion", and for the facility of reference is extracted hereinbelow:-

(3.) According to the Plaintiff, there was a novation of the contract to the extent that the Plaintiff was required to submit all Running Bills and the Final Bill to the Defendant's GENERAL MANAGER, Mr. Anil Gupta, who headed the Defendant's PROJECT TEAM for the said Contract and the Plaintiff's interaction was confined to the latter with no part being delegated to the aforementioned PROJECT MANAGER, i.e., M/S. LOUIS BERGER INTERNATIONAL INC. During the execution of "THE WORK", certain disputes arose between the parties compelling the Plaintiff to institute a Civil Suit, being CS(OS) No.485/2000, which suit was disposed of in terms of a compromise application jointly filed by the parties vide order dated 22 nd August, 2000. Under the said compromise, the Defendant was liable to pay a sum of Rs. 25 lacs in four equal instalments under the Head of ESCALATION. The Defendant paid the first three instalments in compliance with the said order but defaulted in the release of the last instalment of Rs. 6.25 lac, thereby compelling the Plaintiff to institute separate execution proceedings for the recovery thereof. The said amount, however, does not form part of the relief prayed for in the present suit.