BHARAT HEAVY ELECTRICALS LIMITED vs ETHIOPIAN ELECTRIC POWER CORP & ORS
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th January, 2024
+ CS(COMM) 244/2016
BHARAT HEAVY ELECTRICALS LIMITED
….. Plaintiff
Through: Mr. Prashant Mehta and Mr. Raghav Marwaha, Advocates.
versus
ETHIOIPIAN ELECTRIC POWER CORP. & ORS.
….. Defendants
Through: Mr. Rajiv Kapur, Mr. Akshit Kapur and Mr. Aditya Saxena, Advocates for SBI.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A. 15522/2019 (under Chapter XXIII of Delhi High Court (Original Side) Rules, 2018 on behalf of the plaintiff)
1. An application has been filed on behalf of the plaintiff submitting that the total cost incurred for the trial of the suit, amounts to Rs.25,43,779/- which may be awarded in the decree. The application is supported by an additional affidavit dated 10.11.2022 showing revised costs that were inadvertently left out followed by another affidavit dated 15.04.2023.
2. It is submitted in the application that vide Judgment dated 16.11.2018 a Decree has been passed in favour of the plaintiff against the defendant in terms of the prayers relating to Permanent Injunction and discharge/return of Bank Guarantees. Further, costs were allowed in favour of the plaintiff. The plaintiff has thus, sought permission to file the Bill of actual cost upon adjudication of the case as per Chapter XXIII Rule 5 of Delhi High Court (Original Side) Rules, 2018. The plaintiff/Decree Holder has sought the following costs and expenses:
S. No.
Particulars
Amount (Rs.)
1.
Total court fees filed along with the plaint.
1,01,350/-
2.
Bank Guarantee Commission Charges
4,56,500
3.
Expenditure on travelling
5,30,579
4.
Advocates fee including the fee of a Senior Advocate
14,55,350
Total
25,43,779/-
3. Thus, a total cost of Rs.25,43,779/- has been claimed.
4. An Additional Affidavit dated 10.11.2022 has been filed, wherein a revised costs has been given, which is as under :
S.NO.
PARTICULARS
AMOUNT IN INR
1.
Total Court Fee filed along with the Plaint
Rs.1,01,350/-
2.
Bank Guarantee Charges
Rs.41,80,205/-
3.
Expenditure on travelling
Rs.5,28,790/-
4.
Advocates fee including the fee of Senior Advocate
Rs.17,47,850/-
Total
Rs.65,58,195/-
5. This is followed by another affidavit dated 15.04.2023, wherein the total Advocates Fee is calculated at Rs.17,47,850/- and the total travelling expenses have been calculated at Rs.5,28,790/- which are all claimed by way of the costs.
6. Submissions heard.
7. Pertinently in the original application, the Bank Guarantee commission charges were claimed as Rs. 4,56,500/- while in the second affidavit the amount on this account is claimed to be Rs.41,80,205/-. Originally Advocates Fee including the Senior Advocates Fee was stated to be Rs.14,55,350/- which has been enhanced to Rs.17,47,850/- in the second affidavit.
I. Court Fees:
8. Appendix-D annexed to the Code of Civil Procedure provides for the format for drawing of the Decrees in original suits in terms of Order XX Rule 6 & 7 CPC. The heads provided for calculating the cost of suit to which a plaintiff is entitled are as under :
1. Stamp for Plaint
2. Stamp for Power
3. Stamp for Exhibits
4. Pleaders Fee on Rupees
5. Subsistence for Witnesses
6. Commissioners Fee
7. Service of Process
9. Further, Chapter XXIII Delhi High Court (Original Side) Rules, 2018, provide for what would be included as costs which is essentially in consonance with the heads provided in Appendix-D to Form No.1 to CPC dealing with Drawing of Decrees.
10. In so far as the Court Fee in the sum of Rs.1,01,350/- is concerned there is no dispute and it has to be included in the costs.
II. Bank Guarantee Commission Charges:
11. The second cost which is sought is on account of Bank Guarantee Commission Charges initially in the sum of Rs.4,56,500/- which has been enhanced to Rs.41,80,205/- on account of it being kept alive from 01.01.2010 till 31.12.2021.
12. As per the terms of the Contract, the Bank Guarantee in Euro 794,190.37 equivalent to Rs.5,97,00,000/- approx., had been furnished on 17.07.2006 by the plaintiff to defendant No.1 as one of the terms of their Contract. It was issued by defendant No.2 through defendant No.3 on behalf of the plaintiff. the Bank Guarantee was furnished.
13. The terms of Bank Guarantee provided this guarantee is valid until 30 days after the issuing of final acceptance certificate issued by the Engineer. The case of the plaintiff was that the works on completion were handed over to the defendant in 2012. The Bank Guarantee thus, stood discharged in terms of the Contract.
14. The plaintiff further asserted that the Bank Guarantee which is discharged or expired cannot be invoked. However, the defendant No.1 failed to issue the Certificate of Completion and illegally tried to invoke the Bank Guarantees in 2016 for which reason the plaintiff was compelled to file the suit in this Court seeking relief to restrain the defendants from encashing or paying respectively the sum guaranteed in the Bank Guarantee.
15. It was the case of the plaintiff itself that the Bank Guarantee stood discharged on the completion of the works. Furthermore, the Bank Guarantee according to the plaintiff was to be kept alive only till 2012 but was kept alive in 2016, as defendant No.1 failed to issue a Certificate of Completion. Thus, the expenses have been sought in keeping the Bank Guarantee alive.
16. First and foremost, it is observed that, the claim for recovery of Bank Charges incurred for keeping the Bank Guarantee alive till 2021 is a substantive claim for money in terms of the Contract and should have been claimed as a relief in the suit.
17. In this regard a reference may be made to the principle expounded in Trojan & Co. Ltd vs Rm. N. N. Nagappa Chettiar, 1953 SCR 780 wherein it was held that the Prayer clause in a plaint indicates the relief that is sought by the filing party and the court is not entitled to grant a relief that was not asked for. Thus no relief can be granted without a corresponding prayer in the prayer paragraph. Similar observations were made in Bharat Amratlal Kothari & Anr. vs. Dosukhan Samadkhan Sindhi & Ors., (2010) 1 SCC 234.
18. Secondly, the plaintiff failed to claim these charges for furnishing and keeping the Bank Guarantee alive since 2010 while the suit was filed in 2016. It being a substantive relief, should have been sought in the suit. Moreover, it was for the plaintiff to prove that the expenses to keep the Bank Guarantee, was on account of the fault of the defendant. Having not done so, he is now trying to seek the charges for having kept the Bank Guarantee alive as the costs. While the discharge of the Bank Guarantee was sought in the suit by way of relief, there was nothing that prevented him to also claim bank charges .
19. Thirdly, the plaintiff could not have claimed the charges for furnishing or keeping the Bank Guarantee alive during the period that the Contractual works were being performed i.e. till 2012. Even after 2012 to 2016 the non-issuance of the Completion Certificate was the only reason why the Bank Guarantee was kept alive. Thereafter, the suit was filed in 2016 and the judgment was passed on 26.11.2018. Pertinently, this Court has not made any Orders requiring the plaintiff to maintain the status quo in respect of the Bank Guarantee. Neither has any explanation been given for keeping the Bank Guarantee 2016 to 2018 nor thereafter till 2021.
20. Therefore, the claim of the plaintiff for Rs. 41,80,205/- towards the Bank Guarantee cannot be termed as cost of litigation and cannot be awarded on decree of the suit.
III. Legal/Advocates fees:
21. The plaintiff has also sought Rs.17,47,850/- towards the legal/advocates fees. The Rule 5 of Chapter XXIII Delhi High Court (Original Side) Rules, 2018 do provide for the costs incurred on the Advocates Fee including the fee of Senior Advocates as the cost of litigation to be awarded to the plaintiff.
22. In support of the Senior Advocates/Advocates Fee, the plaintiff has relied upon some internal emails of the plaintiff organisation, however, neither any invoice nor any proof of payment has been produced. Moreover, these emails are not even supported with the Certificate under Section 65B of Indian Evidence Act, 1872. However, considering that the Pleaders Fee is included in the cost of litigation, the same may be allowed to the plaintiff on his furnishing the requisite invoices/proof of the payments made to the counsel/ Senior Advocate.
IV.Travel Expenses:
23. The plaintiff has further sought travel expenses in the sum of Rs.5,30,579/- revised to Rs.5,28,790/-. It is asserted that during the pendency of the suit, representatives of the plaintiff had travelled to Ethiopia to have settlement talks with the defendant No.1. However, by no stretch of interpretation can the endeavours made by the plaintiff for settlement or any expenditure incurred by the representative/General Manager of the plaintiff to travel to Ethiopia, can be termed as litigation cost.
24. This head of Travel Expenses does not even comes under Chapter XXIII of Delhi High Court (Original Side) Rules. Therefore, this amount also cannot be allowed to the plaintiff.
Conclusion:
25. In view of the above discussion, the Decree Sheet be prepared by granting the Court Fees and the legal Fees as the Costs.
26. The Decree Sheet be accordingly drawn.
27. The application is disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 19, 2024
Va/Ek
CS(COMM) 244/2016 Page 1 of 7