TaxTMI 
TaxTMI 
2010 (6) TMI 329
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....the copy of the minutes relied upon in the affidavit-in-opposition which is the more authentic. 3. The minutes of the meeting held at the company's Nehru Place, Delhi office on March 12, 2008 recorded that the petitioner "will endeavour to complete the above mentioned works and all such works which are necessary for virtual completion by April 15, 2008." The minutes further recorded that the petitioner had requested for compensation in view of the increase in the prices beyond the initially contemplated time schedule. The parties agreed at such meeting to enhance the rates of the items supplied and executed after March 12, 2007 by 12 per cent. except for the rates of extra items on which the enhancement would not be applicable. 4. It is such increase in rate that the petitioner brandishes as its trump card. The petitioner says that the defence urged by the company that the delay was occasioned by the petitioner is belied by the fact that the delay is not attributed to the petitioner in the minutes of the meeting of March 12, 2008 and the fact that the price was increased because of the extended completion schedule. The company contends that the company was constrained to give in ....
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....he works which you are unable to execute so that an alternative plan could be worked out." By the same communication, the company complemented the petitioner for "the excellent work carried out by you" and emphasised that the status report was necessary for the satisfactory completion of the work. The status report was forwarded by a communication of May 28, 2008. There was no immediate response from the company. The petitioner says that the petitioner was permitted to remove the petitioner's material from the site upon gate-pass being issued on or about June 29, 2008. 8. By a writing of August 7, 2008 the petitioner demanded that the payment due to it be released. A subsequent demand in writing followed on August 26, 2008. From a further e-mail message of December 16, 2008 issued by the petitioner, it is evident that an ad hoc amount of Rs. 10 lakh was released by the company on November 5, 2008. There was no contemporaneous grievance expressed by the company despite the petitioner's demands in writing for payment made on August 7, 2008, August 26, 2008 and December 16, 2008. It is not in dispute that such written demands were received by the company. 9. The statutory notice was....
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...., after the petitioner's submission was concluded, the company submitted that the petitioner's challenge to the existence and veracity of such letter of May 26, 2008 was without basis since the company could produce unimpeachable evidence of such letter having been served on the petitioner. Since the company had not, at the outset, sought leave to produce its best evidence to demonstrate that the petitioner had received such letter and since the company had failed to furnish proof of delivery of such letter in its affidavit-in-opposition, the company was required to pay substantial costs for being granted leave to use a supplementary affidavit to show that the letter had been served on the petitioner. 13. In its supplementary affidavit the company has produced a consignment note and the receipted copy thereof issued by the private courier apparently assigned the job. The petitioner has used a rejoinder to the company's supplementary affidavit where it had denied the rubber stamp and signature attributed to it in the courier's proof of delivery. The petitioner says that in the usual course of business it maintains a letter receipt register and the petitioner has relied on copies of....
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....y had several opportunities between May and December, 2008 to suggest to the petitioner that the petitioner was at fault. Even the company's e-mail of May 23, 2008 merely sought a status report so that an alternative plan could be worked out for the completion of the work that the petitioner was unable to execute. If the company complemented the petitioner's workmanship on May 23, 2008, it is difficult to accept that three days down the line it would word a letter in the manner that the document of May 26, 2008 would have one believe. 16. Again, if the company had refuted the petitioner's final bill and if the company had, indeed, prepared a list of unfinished work which the company had called upon the petitioner to complete (the list is appended to the purported letter of May 26, 2008), the company would have said so and referred to the list upon receipt of the petitioner's several demands between August and December, 2008. If the contents of the letter of May 26, 2008 were to be accepted, it would be difficult to fathom that the company would allow the petitioner to remove its men and material from the site without so much as a whimper. Further, if the company genuinely refuted ....