Case No. 147/2021   

IN THE MATTER OF

M/s MultiTech Engineers, 19 Kripal Apartment, 44, IP Extension, New Delhi through authorized signatory, Anand Mohan Singh S/o Banwari Lal R/o E-401 Gali no.4 Shastri Marg, East Babarpur, Babarpur North East Delhi, Delhi

                                           V/s

The Chief Engineer/DCRTPP, HPGCL, Yumana Nagar through Resident Engineer WYC HE Project HPGCL Bhudkalan, Yumana Nagar, Haryana

CORAM

 Present:

1. Shri Hasnain Qureshi, President
2. Shri Alok Upadhayay, Member
3. Smt. Purnima Singh Rajpoot, Member

PRONOUNCED by Shri Hasnain Qureshi, President

JUDGMENT

1. The present complaint has been filed by the complainant before this commission for  the following reliefs:-

1. The op be directed to pay the complainant the principal amount Rs.1040301 with the interest Rs. 715969 accrued on the principal amount from 5.5.2018 to 15.8.2021 as calculated U/s 16 of the Act,2006 with pendente lite and future interest till realization.
2. Cost of the Case.

1. Complainant has stated that the complainant is a small enterprise under the Micro, Small and Medium Enterprise Act, 2006 and carries on the activity of manufacturing, repairing and machining of turbines and generators and its parts/ components. Op invited  e-tender for capital overhauling work of turbines at WYC HE project HPGCL Bhudakalan with EMD Rs. 98000. The contract was executed between the parties with clause no.5 including the terms and conditions of payment as 40% payment of the total work to be made as running payment on the certification of complication of 60% work and next 40% of the work to be made as running payment on certificate of completion of 100% work. Balance 20% of the total work payment was to be made after successful trial of machine at average load of 7.5 MW for 72 hours. Complainant was requested by the Op to start work from 8.12.2017 at total cost Rs. 2926400 through memo dated 7.12.2017. On completion of the work complaint was paid the amount Rs 1984099 on 25.7.2018 against the invoice dated 21.3.2018 for Rs. 2926400 and the earnest money deposit Rs 98000 was to be paid and thus total amount Rs.1040301 remained unpaid. Complainant communicated the OP for the release of 20 % payment as per clause 5 of the contract vide mail dated 18.8.2018 and it was explained in the mail that the machine cannot achieve full load 7.5MW as it was found on checking that the machine work was successfully completed but the design of runner blades was not correct and due to location of mating holes  on runner blades the machine cannot achieve the full load . Complainant again communicated the Op for pending payment through mails dated 11.4.2019 and 20.12.2019. The Op intimated the complainant through mail dated 22.12.2019 that during the execution of the work or after completion of the work the above explanation was never informed. Op requested to set right the defect to achieve 7.5MW and to provide supervision of M/s Volth Hydro (OEM) by HPGCL to carry out the work. Complainant replied through mail dated 23.12.2019 that the scope of work involving the activities relating to capital overhauling only was done by the complainant and proved successful and blades were supplied by the OEM and they are responsible for the loss of output. Op again requested the complainant through mail dated 16.6.2020  to consider mail dated 23.12.2019 and to correct the fault of machine and offered supervision of OEM. It was replied by the complainant through mail dated 8.7.2020 that the unit shall be redismantled to inspect full opening or closing of the runner blades and it was found that the fault is due to runner or other spairs provided by the HGPCL, then an amount of Rs. 1000000 shall be charged for services. The proposal was submitted by the complainant. OP sought clarification about the proposal. Complainant again communicated to the OP about the less output through mail dated 28.7.2020 and it was mentioned that withholding of the payment for the reasons for attributing to complainant is unfair. Complainant informed the Op that it was not possible to informed during execution of the work or after completion of the work that the design of runner blade was not correct and location of mating holes on the runner blade was an impediment in achieving the full load because the opening and closing of the blades could only be checked after complete assembly of the unit and charging of servo system. The complainant cannot be attributed any fault in not disclosing the cause of less output during the execution of the work or after completion of the work. The cause of less output was beyond the scope of work and the party who supplied the blades can be made liable for not generating 7.5MW output. In principal op had accepted the explanation given by the complainant for not achieving the load 7.5MV as the OP had requested to correct the fault and to provide supervision of OEM by HGPCL to supervise the work. This exonerates the complainant from the alleged fault of giving less output. Complainant has come to know that the unit is now generating 7.5MW after correction of defect in runner blades and op was at fault in attributing blame on the complainant for less output and with holding the 20% of total work payment and earnest money deposit Rs.98000. It amounts to deficiency in service. In view of meaning of the consideration used in defining consumer under the Consumer protection Act are reciprocal promises for promisor and promisee of the parties under the contract and either party to a contract may be service provider or service recipient. Accordingly OP is covered under the scope of service provider to make payment under the contract and the complainant is covered under the scope of service recipient to receive payment on completion  of work which are mutual performances. Complainant is entitled to get the job work done as a consumer and op has failed to discharge its liability of making payment of 20% of the total work payment and earnest money deposit total amount Rs.1040301 with interest Rs 715969 from 5.5.2018 to 15.8.2021 as calculated u/s 16 of the Act,2006 and thus op is liable to make payment of the amount Rs.1756270 with pendente lite and future interest .                                                    

2. Op stated in WS that the complainant was paid the amount Rs 1984099 on 25.7.2018 against the invoice dated 21.3.2018 for Rs 2926400 as per clause no5 of the General terms and conditions of the contract. It is provided in the same clause that 20% of total work payment was to be made after successful trial of the machine at average load of 7.5MW for 72 hours. But the machine could not run on an average load of 7.5 MW and complainant was informed on 7.3.2018 in this regard. The HPGCL has the right to forfeit the earnest money as per clause no4 of the General terms and conditions of the contract. Complainant had to perform functional testing of runner assembly as per scope of the work. It is denied that all the work under taken by the complainant has proved to be successful and the unit was running smoothly is denied the machine could not achieve the load 7.5MW. there was a problem in the runner assembly of the machine which could be identified during functional testing of runner assembly that was under the scope of work and the issue regarding supply of the material having mating holes in blades could be taken up at the initial stage which was taken up after a long delay. Complainant was requested vide email dated 30.7.2012 to carry out the wotrk under the guarantee/warrantee and HPGCL was to provide supervision of OEM ( M/s Voith Hydro ) to supervise the work. As per terms of the work order  defect found in the runner assembly must have been attained by the complainant with out any additional charge to HPGCL. Complainant made it chargeable at the rate Rs.1000000 as informed  through letter dated 8.7.2020 since there is lapse on the part of complainant in execution of the work, hence the action against the complainant is very much lawful. As per scope of the work,  functional work and testing of runner assembly was to be carried out by the complainant and mismatching of holes in the runner blades could be find out at the earlier stage  which may result in   achieving the full load by the machine just after compliance of overhauling work. The matter was also taken with the supplier of runner blades i.e. M/s Voith Hydro (OEM) but the problem of mating holes of runner blades was not identified during the function testing of runner assembly and the same could be rectified at that time. After pursuing the matter with M/s Voith Hydro(OEM) the defect in the runner assembly was corrected. Therefore complainant breached  the contract and failed to perform the obligations .The defect in the runner assembly corrected by M/s Voith Hydro (OEM) the supplier of the runner blade after a long delay of about three years which could be minimized if the complainant would have extended cooperation at the early stage. Complainant is not consumer and it has no right to file the complaint. The complaint is barred by the limitation as the work order issued on 30.11.2017 and work was completed on 25.7.2018. The action regarding forfeiting the payment was taken due to the conduct of the complainant by not obeying the terms and conditions of the work order.                

3. Complainant has filed his affidavit and papers in support of his pleadings. Op has filed affidavit  in support of his pleadings.  
4. We have perused the material available on record and heard the parties counsel. We have also perused the rulings referred to by the parties.
5. The first question of consideration before us is whether the complainant is entitled to any relief?
6. It is alleged that the Op has withheld 20% of the total work  payment and the earnest money deposit after rendering the services of completion of the work. OP has stated that the action was taken due to not making obey of the terms and conditions of the work order and the breach of the contract has been alleged in regard to defect found in the runner assembly which was not attended by the complainant without any additional charges. Complainant has explained the liability of correcting the defect in the machine through mails to the Op and it was stated by the Complainant that the machine could not achieve full load 7.5MW because the design of the runner blades was not correct and due to location of mating holes on runner blades. Complainant also stated that the scope of work involved the activities related to capital overhauling and the capital spares were provided by HPGCL and all the work undertaken by the complainant proved successful and the inability to generate output of 7.5MW was that the runner blades were not able to open fully due to wrong location of the link pin supplied by the OEM and they were liable for the loss of output. Complainant also stated that the Op was informed that the service charges for correction of the defect would be Rs.100000 which was beyond the scope of work to be done by the complainant. In this regard OP requested the complainant to set right the defect to achieve the load7.5MW and to provide supervision of  M/s Voith Hydro (OEM) by the HPGCL to carry out the work. It makes clear that the op accepted the explanation   given by the complainant for the less output. Thus complainant is exempted from imputation of not achieving the full load and cannot be held liable for breach of the contract and no action could be taken by the OP against the complainant by way of forfeiting the amount of 20% of the total work  and the amount of earnest money deposit. Complainant is entitled to get the interest on the amount @12% per annum. Accordingly the complainant is entitled for the reliefs claimed.
7. The question formulated above is decided in favor of the complainant.
8. Second question of consideration before us is whether the District Commission is competent to hear and decide the present case?
9.   Complainant has discussed the term consumer as defined U/s 2(7) (ii) of the Act, 2019 and explained the term consideration used in the definition of the consumer in the context of contractual relationship between the parties. It has been stated that the term consideration is not only money but it may be in other forms also and every promise forming the consideration for each other is an agreement and is based on the concept of bargaining for exchange where both parties get something which they have agreed to. Thus either party to a contract may be service provider or service recipient.   Thus the liability owned by the op may be covered under the scope of service provider to make payment for the work done and the complainant is covered under the scope of service recipient  as a consumer to receive payment on completion of work and the dispute involved in the case may be termed as consumer dispute which may be decided under the Consumer Protection Act,2019.       
10. The question formulated above is decided in favor of the complainant.
11.  Third question of consideration before us is whether the complaint is time barred?
12. Complainant has stated that the complainant raised the issue of making payment of remaining 20% of total work payment vide mail dated 18.8.2018 after part payment of Rs.1984099. thereafter the correspondence between the parties was continuously  taken place and ended with the mail dated 28.7.2020. In view of section 25(3) of the contract Act even a time barred debt  is good consideration for fresh promise to pay the amount. The correspondence between the parties was made in writing and was signed by the officers of the Op and there was no denial to amount due. As such it created a fresh contract U/s 25(3) of the contract Act and the complainant is entitled to enforce the liability of payment against the op. The complaint is within the limitation. 
13. The question formulated above is decided in favor of the complainant.
14.  We hereby direct the Op to pay the complainant the amount Rs.1756270 with pendente lite and future interst @ 12% per annum and litigation expenses Rs.25000.
15. Ops shall comply with the direction within 30 days failing which Ops shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
16. A copy of this judgment be provided to all the parties as per rule as mandated by Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
17. File be consigned to record room along with a copy of this judgment.