w w w . L a w y e r S e r v i c e s . i n



Harji Engineering Works Pvt. Ltd. v/s Hindustan Steelworks Construction Ltd.


Company & Directors' Information:- HINDUSTAN STEELWORKS CONSTRUCTION LTD [Active] CIN = U27310WB1964GOI026118

Company & Directors' Information:- HINDUSTAN CONSTRUCTION COMPANY LIMITED [Active] CIN = L45200MH1926PLC001228

Company & Directors' Information:- J K ENGINEERING WORKS LTD [Strike Off] CIN = U29221UP1964PLC003014

Company & Directors' Information:- K. N. ENGINEERING WORKS PRIVATE LIMITED [Active] CIN = U29299HR2011PTC044098

Company & Directors' Information:- V-INDIA ENGINEERING & CONSTRUCTION PRIVATE LIMITED [Active] CIN = U74110GJ2011PTC064562

Company & Directors' Information:- V-INDIA ENGINEERING & CONSTRUCTION PRIVATE LIMITED [Active] CIN = U45200GJ2011PTC064562

Company & Directors' Information:- HARJI ENGINEERING WORKS PRIVATE LIMITED [Active] CIN = U74899DL1982PTC014899

Company & Directors' Information:- M J ENGINEERING WORKS PRIVATE LIMITED [Active] CIN = U27109DL1991PTC043687

Company & Directors' Information:- ENGINEERING CONSTRUCTION COMPANY LIMITED [Strike Off] CIN = U45200MH1944PLC004182

Company & Directors' Information:- R. N. ENGINEERING WORKS PVT LTD [Active] CIN = U27101WB1982PTC034586

Company & Directors' Information:- S K ENGINEERING AND CONSTRUCTION COMPANY INDIA PRIVATE LIMITED [Active] CIN = U45402TZ2010PTC015941

Company & Directors' Information:- HINDUSTAN ENGINEERING C AND S COMPANY PRIVATE LIMITED [Active] CIN = U27106PB1998PTC021247

Company & Directors' Information:- HINDUSTAN ENGINEERING PRIVATE LIMITED [Active] CIN = U27200MP2007PTC019559

Company & Directors' Information:- I. M. ENGINEERING WORKS PRIVATE LIMITED [Active] CIN = U74200WB2008PTC129701

Company & Directors' Information:- P. G. P ENGINEERING WORKS LIMITED [Amalgamated] CIN = U99999MH1976PLC019400

Company & Directors' Information:- M S S P ENGINEERING WORKS PRIVATE LIMITED [Active] CIN = U29130TN2008PTC067764

Company & Directors' Information:- L N ENGINEERING WORKS PRIVATE LIMITED [Active] CIN = U29300MH1989PTC053803

Company & Directors' Information:- J S G ENGINEERING WORKS PRIVATE LIMITED [Strike Off] CIN = U45202HP2000PTC023398

Company & Directors' Information:- V K CONSTRUCTION WORKS PVT LTD [Strike Off] CIN = U45209CH1977PTC003718

Company & Directors' Information:- V K ENGINEERING WORKS PVT LTD [Active] CIN = U99999MH1974PTC017405

Company & Directors' Information:- A B ENGINEERING WORKS PVT LTD [Active] CIN = U27109WB1987PTC041780

Company & Directors' Information:- M M ENGINEERING WORKS PRIVATE LIMITED [Active] CIN = U29951UP1995PTC018573

Company & Directors' Information:- S N P ENGINEERING WORKS PVT LTD [Strike Off] CIN = U28991MP1983PTC002124

Company & Directors' Information:- R B ENGINEERING AND CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U29248OR2012PTC014921

Company & Directors' Information:- B M ENGINEERING WORKS PVT LTD [Strike Off] CIN = U27109WB1974PTC029283

Company & Directors' Information:- H. D. CONSTRUCTION ENGINEERING PRIVATE LIMITED [Active] CIN = U45200JH2017PTC009877

Company & Directors' Information:- N. S. ENGINEERING WORKS PRIVATE LIMITED [Strike Off] CIN = U29200WB2007PTC116554

Company & Directors' Information:- V J ENGINEERING AND CONSTRUCTION INDIA PRIVATE LIMITED [Active] CIN = U45209PN2020PTC191850

Company & Directors' Information:- J M ENGINEERING WORKS PVT LTD [Strike Off] CIN = U27109WB1981PTC034279

Company & Directors' Information:- INDIA ENGINEERING WORKS LTD [Strike Off] CIN = U51900WB1942PLC011320

Company & Directors' Information:- R T C ENGINEERING WORKS PVT LTD [Active] CIN = U29294WB1964PTC026130

Company & Directors' Information:- R M V ENGINEERING WORKS PRIVATE LIMITED [Converted to LLP] CIN = U13203DL2007PTC160014

Company & Directors' Information:- B S ENGINEERING & CONSTRUCTION PRIVATE LIMITED [Amalgamated] CIN = U45400WB2013PTC199280

Company & Directors' Information:- C K D ENGINEERING CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U45202WB1999PTC090674

Company & Directors' Information:- M A ENGINEERING WORKS PVT LTD [Strike Off] CIN = U29222PB1982PTC005117

Company & Directors' Information:- M B ENGINEERING WORKS PVT LTD [Converted to LLP] CIN = U29230WB1959PTC024166

Company & Directors' Information:- C D C ENGINEERING CONSTRUCTION COMPANY PVT LTD [Active] CIN = U74210WB1991PTC051720

Company & Directors' Information:- Z ENGINEERING WORKS PRIVATE LIMITED [Active] CIN = U29253MH2016PTC271563

Company & Directors' Information:- H M ENGINEERING WORKS PVT LTD [Strike Off] CIN = U28991WB1965PTC026593

Company & Directors' Information:- P M ENGINEERING WORKS PRIVATE LIMITED [Strike Off] CIN = U29100PB2014PTC038453

Company & Directors' Information:- S. K. ENGINEERING AND WORKS PRIVATE LIMITED [Strike Off] CIN = U29253MH2013PTC247348

Company & Directors' Information:- P. B. ENGINEERING WORKS PRIVATE LIMITED [Active] CIN = U74900MH2012PTC229787

Company & Directors' Information:- J D WORKS PRIVATE LIMITED [Active] CIN = U74999MH2011PTC211791

Company & Directors' Information:- D & F CONSTRUCTION & ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U45200TN2009PTC070764

Company & Directors' Information:- M K D ENGINEERING WORKS PVT LTD [Strike Off] CIN = U27209WB1976PTC030736

Company & Directors' Information:- S M WORKS PRIVATE LIMITED [Active] CIN = U45400DL2014PTC270403

Company & Directors' Information:- R. A, ENGINEERING AND CONSTRUCTION PRIVATE LIMITED [Active] CIN = U45201UP2019PTC118225

Company & Directors' Information:- U P ENGINEERING WORKS PVT LTD [Strike Off] CIN = U29248UP1972PTC003562

Company & Directors' Information:- B M S ENGINEERING WORKS PVT LTD [Strike Off] CIN = U31503WB1955PTC022834

Company & Directors' Information:- M P WORKS PVT LTD [Strike Off] CIN = U22219WB1950PTC018702

Company & Directors' Information:- D G R ENGINEERING WORKS PVT LTD [Strike Off] CIN = U29230WB1962PTC025563

Company & Directors' Information:- HINDUSTAN CORPORATION PRIVATE LIMITED [Dissolved] CIN = U74900KL1901PTC000424

Company & Directors' Information:- HINDUSTAN LTD. [Active] CIN = U99999MH1917PTC000472

Company & Directors' Information:- HINDUSTAN CORPORATION LIMITED [Dissolved] CIN = U99999MH1949PLC007790

Company & Directors' Information:- B P ENGINEERING WORKS PRIVATE LIMITED [Strike Off] CIN = U99999MH1972PLC015642

    General Application Nos. 3191 of 2018, 613 & 781 of 2019 & Civil Suit No. 212 of 2018

    Decided On, 03 January 2020

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DEBANGSU BASAK

    For the Appearing Parties: Abhrajit Mitra, Chayan Gupta, Dwip Raj Basu, Sweta Gandhi Murgai, Urmila Chakraborty, Kasturi Dasgupta, Advocates.



Judgment Text


1. Three applications are taken up for analogous hearing as they are in the same suit. Old GA No.781 of 2019, New GA No.4 of 2019 is an application of the defendant for rejection and/or dismissal of the instant suit. For the sake of convenience, the application is referred to as the demurrer application. GA No.3191 of 2018 is an application of the plaintiff for judgment on admission. There is another application at the behest of the defendant being Old GA No.613 of 2019, New GA No.3 of 2019 for extension of time to file affidavit-in-opposition in GA No.3191 of 2018.

2. Learned advocate appearing for the defendant submits that Old GA No.613 of 2019, New GA No.3 of 2019 has become infructuous since, affidavits in GA No.3191 of 2018 are complete.

3. In such circumstances, Old GA No.613 of 2019, New GA No.3 of 2019 in CS No.212 of 2018 is dismissed as infructuous.

4. The demurrer application is taken up for consideration first.

5. Learned advocate appearing for the defendant submits that, the claim of the plaintiff is ex facie barred by limitation. In support of such contention, she relies upon the averments made in the plaint. She submits that, the claim of the plaintiff is based upon the two invoices, both of which are dated July 5, 2008. The suit was filed some time in 2018. Therefore, according to her, the claim of the plaintiff on the basis of such two invoices is ex facie barred by the laws of limitation.

6. Learned advocate appearing for the defendant refers to the award of contracts made by the defendant in favour of the plaintiff on March 3, 2004 and May 31, 2004. She submits that, the clauses of the contract documents specify that, the parties agree to have the disputes settled by way of arbitration. Moreover, according to her, there is a forum selection clause which ousts the jurisdiction of this Hon'ble Court. In support of her contention, she refers to and relies upon Clauses 22.0.0 and 23.2.0 of the award of contract.

Learned advocate appearing for the defendant submits that, since the claim of the plaintiff is barred by limitation and since, there is a forum selection clause with the parties agreeing to settle the disputes by way of arbitration, the Court should be pleased to reject the plaint.

7. Learned senior advocate appearing for the plaintiff submits that, the defendant promised to pay the claim of the plaintiff over a period of time. He refers to the correspondence exchanged between the parties in this regard. He submits that, there are acknowledgments of liabilities apart from the promise to pay made by the defendant. Moreover, according to him, the cause of action of the plaintiff is based not only upon the two unpaid invoices but also on the failure on the part of the defendant to return the equipments and machineries despite promises being made. According to him, the promises were made within the period of limitation.

8. Referring to the so called forum selection clause in the award of contract, learned senior advocate appearing for the plaintiff submits that, there are two several Memorandum of Understandings both dated April 12, 2004, where the parties agreed that, the Courts at Kolkata will have jurisdiction. In any event, a part of the cause of action of the suit should arise within the chosen jurisdiction for the chosen Court to assume jurisdiction. In the present case, the defendant did not place any material before the Court to suggest, let alone substantiate that, a part of the cause of action arose within the territorial jurisdiction of the Courts of Delhi. On the face of the clause itself, according to him, the clause is vague.

9. Relying upon (SCG Contracts India Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt. Ltd.& Ors.,2019 SCCOnLineSC 226), learned senior advocate appearing for the plaintiff submits that, the suit being a suit governed by the provisions of the Commercial Courts Act, 2015, a period of 120 days expired since the service of writ of summons on the defendant. The defendant cannot have the luxury of filing a written statement at the stage.

10. Learned senior advocate appearing for the plaintiff refers to the application for judgment on admission and submits that, there are acknowledgements of liability made by the defendant in writing. He refers to pages 298 onwards of the application and submits that, by letters dated October 1, 2012 and January 9, 2013 and even subsequent thereto, the defendant acknowledged its liability to pay the plaintiff. Therefore, according to him, the plaintiff is entitled to a decree on judgment on admission.

11. In response, learned advocate appearing for the defendant submits that since limitation is a triable issue, no decree need be passed at this stage. She submits that, since the suit was not filed in the Commercial Division, the same was directed to be transferred to the Commercial Division on November 14, 2019. The Court however on November 14, 2019 did not invoke the provisions of Section 15(4) of the Act of 2015 and prescribe new timeline or issue any direction for the disposal of the suit. Therefore, according to her, the Court retains the jurisdiction to allow the defendant to file written statement.

12. In the present suit, the plaintiff seeks money decree for Rs. 27,69,21,542/- against the defendant on account of two invoices both dated July 5, 2008. The plaintiff also seeks a decree for specific delivery of equipments described in annexure E to the plaint and in the event of non-returning of the equipments, a decree for a sum of Rs. 5,20,00,000/- against the defendant. In the alternative, the plaintiff seeks a decree on enquiry into the damages.

13. The cause of action of the plaintiff emanates out of notices inviting tenders dated September 6, 2003 and June 30, 2003 issued by the defendant. The defendant is a government of India undertaking. The plaintiff participated in such tender process and were awarded contracts by the defendant. The contracts were awarded on March 3, 2004 and May 31, 2004. There are similar clauses in the two contracts so far as forum selection clause is concerned. As a specimen the forum selection clause of the contract dated March 3, 2004 is taken into consideration. The relevant clause is clause 23.2.0 which is as follows :

"23.2.0 The laws applicable to this Contract shall be the laws in force in India. The Courts of Delhi alone shall have exclusive jurisdiction in all matters arising under this Contract."

14. There is a subsequent Memorandum of Understanding dated April 12, 2004. Such Memorandum of Understanding also contains a forum selection clause which is as follows :

"Any dispute between HSCL & HEWPL if not resolved amicably shall be referred to the appropriate Court of Law at Kolkata."

15. As rightly pointed out on behalf of the plaintiff, both the forum selection clauses in both the award of contract dated March 3, 2004 and the Memorandum of Understanding dated April 12, 2004 are vague. The forum selection clauses do not specify which of the Court at Delhi or at Kolkata will have the exclusive jurisdiction. Both Kolkata and Delhi have a number of Civil Courts which have specified territorial jurisdiction. The clauses referred to above do not specify any individual Court at Delhi or Kolkata.

16. Moreover, as pointed out on behalf of the plaintiff, a part of the cause of action should arise within the territorial jurisdiction of a Court at Delhi for such Court to assume jurisdiction. In the present case, the defendant is unable to show that any part of the cause of action of the plaintiff arose within the territorial jurisdiction of a Court at Delhi.

17. The contention that, this Court will not have jurisdiction in view of the forum selection clause in the award of contract, has no foundational basis.

18. The defendant did not apply for stay of the suit in view of the arbitration agreement. Therefore, the contention of the defendant on such aspect is not accepted.

19. The contention of the defendant that, the claim of the plaintiff is barred by limitation is also unaccepted in the facts of the present case. Limitation is a mixed question of fact and law. In considering the application under Order VII Rule 11 of the Code of Civil Procedure, 1908, the Court is to proceed on the basis that the statements made in the plaint are true and correct. On a meaningful reading of the plaint if the Court finds that the claim of the plaintiff is barred by limitation then the Court can invoke the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 to dismiss the suit. There are pleadings in the plaint that, the defendant promised to pay the plaintiff and that such promises were made within the period of limitation. Moreover, the plaintiff pleads that, the defendant promised to return the plant and machineries in a meeting held on October 8, 2015 and that the defendant failed to do so. The prayers in the plaint as noted above contains not only reliefs with regard to the invoices but also reliefs with regard to the plant and machineries of the plaintiff which the defendant is allegedly holding onto. The plaint cannot be segregated in parts. Therefore taking the plaint as a whole it cannot be said that, on the strength of the pleadings in the plaint, the entirety of the claim of the plaintiff is barred by limitation at this stage. It would be appropriate to keep the issue of limitation open to be decided at the final hearing of the suit.

20. In view of the discussions above, the old GA 781 of 2019, new GA 4 of 2019 in CS 212 of 2018 stands disposed of without any order as to costs.

21. So far as the application for judgment on admission is concerned, there are letters emanating from the defendant which speaks of a promise to return the plants and machineries as also to pay the plaintiff. However, the issue as to whether the suit is within the period of limitation or not is yet to be decided finally. Therefore, since there is a issue of limitation involved in the suit, it would be inappropriate to pass a decree on judgment on admission without deciding on the issue of limitation finally. At this stage, therefore, the application for judgment and decree on the basis of the admission should not be allowed. GA 3191 of 2018 is disposed of accordingly without any order as to costs.

22. The instant suit was transferred to the commercial division on November 14, 2019 without the Court invoking the provision of Section 15(4) of the Act of 2015. SCG Contracts India Pvt. Ltd. (supra) is a case where a suit was filed in the commercial division and that the defendant did not file writte

Please Login To View The Full Judgment!

n statement within 120 days of the service of the Writ of Summons on the defendant. In such factual background, the Supreme Court held that the Court could not have extended the time for filing the written statement. The factual scenario in the present case are different. 23. As noted above, the suit was not filed in the commercial division. It was transferred to the commercial division of November 14, 2019 without the Court proceeding to pass any direction for time management. Section 15(4) of the Act of 2015 requires the Commercial Division to hold case management hearing in respect of transferred suit and prescribe a new timeline and issue further directions as may be necessary. In the facts of the present case, new time lines were not prescribed and a case management hearing did not take place. Therefore, in my view, it would be appropriate to permit the defendant to file written statement within seven days from the date. The parties will discover their documents within a fortnight thereafter. Inspection to be completed within seven days thereafter. The plaintiff will prepare the Judge's Brief of Documents. The parties are at liberty to mention the suit for early disposal.
O R