Delhi District Court
Vijay Pal Singh vs Apeejay Education Society on 8 November, 2024
IN THE COURT OF MS. PRABH DEEP KAUR, DISTRICT JUDGE - 05
(SOUTH-EAST), SAKET COURTS COMPLEX: NEW DELHI
CS DJ No. 7657/2016
CIS No.DLSE010001192012
CS DJ No. 699/2023 (Counter claim)
CIS No.DLSE 01-010053-2023
Vijay Pal Singh
Proprietor, Sterling Techno Constructions,
A-81, Sector -51, 1st Floor,
NOIDA -201301
............. Plaintiff /Non-counter claimant.
VERSUS
1. Sh. Vijay Berlia
General Secretary of Apeejay Education Society,
Appeejay Education Society
14- Commercial Complex,
Masjid Moth, GK-II,
New Delhi
2. Mrs. Sushma Brelia,
President, Apeejay Education Society
Appeejay Stya House,
14- Commercial Complex,
Masjid Moth, GK-II,
New Delhi
3. P.C. Sabbarwal,
Director (Civil), Apeejay Education Society
Appeejay Stya House,
14- Commercial Complex,
Masjid Moth, GK-II,
CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 1/28
CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024
Digitally
signed by
PRABHDEEP
PRABHDEEP KAUR
KAUR Date:
2024.11.08
17:04:21
+0530
New Delhi
(Defendant no. 1 to 3 deleted from array of parties vide order dated
29.10.2015)
4. Appeejay Education Society
(Through Secretary /General Secretary)
14- Commercial Complex,
Masjid Moth, GK-II,
New Delhi
............ Defendant(only defendant as per
amended memo of parties dated 02.04.2016)/Counter claimant
Date of institution of the suit : 06.11.2012
Date of institution of counter claim : filed on 19.01.2014, registered
as separate suit on 03.08.2023
Date on which order was reserved : 16.10.2024
Date of decision : 08.11.2024
SUIT FOR RECOVERY OF RS. 15,71,796/- ALONGWITH PENDENT
ELITE AND FUTURE INTEREST AND COST
&
COUNTER CLAIM FOR RECOVERY OF RS. 68,461.50/-
JUDGMENT
1) Vide this common judgment, the suit of the plaintiff for recovery of Rs. 15,71,796/- alongwith pendent elite and future interest against the defendant and the counter claim of the defendant for recovery of Rs. 68,461.50/- towards arrears of liquidated damages alongwith interest have been disposed off.
2) Admittedly, defendant awarded contract for civil work of building, CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 2/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.11.08 17:04:29 +0530
Appeejay Staya University(ASU), Sohna (with material) to proprietorship firm of plaintiff through work order dated 07.03.2011 Ex. PW-1/DX for total sum of Rs. 16,21,650/-, which was accepted vide acknowledgment dated 09.03.2011 and it was to be executed within 60 days. Thereafter, another work order was awarded to plaintiff's proprietorship firm for civil work of proposed faculty hostel ASU at Sohna for Rs.32,41,880/-, which was accepted vide acknowledgment dated 28.05.2011 and it was to be executed within 90 days.
Admittedly, first RA bill dated 12.03.2011 for Rs. 6,90,284.70/- was approved for sum of Rs. 6,27,636/-; Second RA bill dated 19.07.2011 for Rs. 5,17,352.41/- was approved for Rs. 3,64,649/-; Third bill in October - November 2011 for sum of Rs. 1,15,510.46/- was approved for Rs. 6,47,593/- and all these bills were paid. Admittedly, plaintiff raised bill dated 03.02.2012 for Rs. 15,71,796/- and this bill is in dispute. Averments of defendant
3) As per defendant, the last bill dated 03.02.2012 was approved for Rs. 11,47,421/- and no amount was paid as it was adjusted towards liquidated damages in terms of contract between parties and plaintiff is still liable to pay a sum of Rs. 68,461.50/- to the defendant towards arrears of liquidated damages. The plaintiff failed to complete the work within stipulated time period as the work order dated 07.03.2011 was to be executed by 08.05.2011 and the work order dated 27.05.2011 was to be executed by 26.08.2011 and plaintiff miserably failed to complete the work within time and therefore, in terms of clause 5 of both work orders, the liquidated CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 3/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:04:35 +0530 damages were levied upon plaintiff. The plaintiff not only failed to complete the work within time but also stopped the work and abandoned the site and contract on 25.03.2012. The defendant had to get the work completed which was left incomplete by the plaintiff and defendant had to avail the services of different contractors, had to engage additional labour, had to engage architect /engineer staffs for supervision and thus, defendant had to pay higher rates than the rate agreed with the plaintiff and thus, defendant paid additional amount and suffered loss for Rs. 12,77,657/-. Averments of plaintiff
4) As per plaintiff, plaintiff had completed the work order dated 07.03.2011 well within time and that is why he was awarded another work order vide work order dated 27.05.2011. The work order dated 27.05.2011 was awarded for ground floor and first floor but subsequently it was extended to second and third floor and as additional work of second and third floor was given, it was agreed between parties that it would take additional time to complete it and therefore, now defendant cannot allege that there was any delay on account of plaintiff. It was the defendant who failed to hand over the premises in vacated condition since the site/hostel was occupied by the cement/plumbing material and in some place electrical poles were installed in the room which defendant failed to vacate and thus, the delay in commencement and completion of work is wholly attributable to defendant's conduct. Therefore, defendant cannot claim any compensation on account of alleged delay nor defendant has suffered any loss or damages as alleged. Plaintiff completed the assigned work as per CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 4/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:04:42 +0530 work order, within time, as mutually agreed. The documents, placed by defendant in support of counter claim, regarding the work awarded to different contractors, pertained to different site i.e. Appeejay Satya University (Appeejay Engineering College Old Campus) while the plaintiff was awarded the civil work of proposed faculty hostel, ASU and Appeejay Satya University Sohna and not for Appeejay Engineering College, Old Campus. Plaintiff was awarded earth work, concrete work, brick work which was completed.
Rebuttal by defendant
5) The defendant had denied that the additional work of second floor and third floor was awarded and as per defendant the work order dated
27.05.2011 was for all the floors of faculty hostel block and not for the ground and first floor as alleged. The plaintiff failed to point out a single instant attributable to defendant due to which work was delayed. Plaintiff failed to give the details of the portion where the alleged cement and plumbing material was lying, the quantity of cement, the nature of plumbing material and it proves that site was vacant. Further, the very fact that plaintiff has chosen to restrict the nature of work to earth work, brick work and concrete work, proves that plaintiff had not completed the work as per work order.
Issues:
6) From the pleadings of the parties, following issues were framed vide order dated 07.05.2016 in the main suit::-
i) Whether this court has to territorial jurisdiction to try and entertain the CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 5/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:04:53 +0530 present suit? OPD
ii) Whether the plaintiff completed the civil works as awarded to the plaintiff vide work order dated 07.03.2011 & 27.05.2011 within time limit as provided in the work orderes?OPP
iii) Whether the defendant suffered damages on account of in-complete work left by the plaintiff and delay caused in completion of work?OPD
iv) Whether the defendant has rightfully adjusted the sum of Rs. 11,47,412/? OPD.
v) Whether the plaintiff is entitled to recovery of suit amount, as prayed for? OPP.
vi) Whether the plaintiff is entitled to interest, if so, at what rate and for which period? OPP.
vii) Whether the defendant /counter -claimant is entitled to decree in the sum of Rs. 68,461.50/- from the plaintiff?OPD
viii) Whether the defendant /counter claimant is entitled to interest, if so, at what rate and for which period?OPD
ix) Relief.
7) Thereafter, matter was fixed for plaintiff's evidence.
8) Plaintiff's evidence:-
(a) In order to prove his case, Plaintiff examined himself as PW-1. He tendered his evidence by way of affidavit as Ex. PW1/1 and reiterated the contents of the plaint and has relied upon the documents Ex. PW-1/A to Ex.
PW-1/H. Ex. PW-1/A to Ex. PW-1/C are de-exhibited and marked as mark as mark P1 (Colly) to P3 (Colly). Ex. PW1/D is exhibited in colly) objected to on mode of proof. He was cross examined at length by Ms. Yashmeet, Ld. counsel for the defendant.
(b) In order to prove his case, Plaintiff examined Sh. Ram Ratan Bhati as PW-2. He tendered his evidence by way of affidavit as Ex. PW2/A and reiterated the contents of the plaint and has relied upon the documents Ex.
CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 6/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.11.08 17:05:00 +0530
PW-1/A (colly) and Ex. PW-1/B. He was cross examined at length by Ms. Yashmeet, Ld. counsel for the defendant. Thereafter, PE was closed on 25.11.2017 and the matter was fixed for defendant's evidence.
9) Defence evidence: (a) In order to prove his case, the defendant examined Mr. P.C.
Sabherwal as DW-1. He tendered his evidence by way of affidavit Ex.DW1/A and relied upon the documents i.e. Ex. DW-1/1 verified first running bill, Ex. DW-1/2 verified second running bill, Ex. DW1/3 verified third running bill and Ex. DW-1/4 verified through running bill. He was cross examined at length by Sh. Vinod Kumar, Ld. Counsel for plaintiff.
(b) The defendant further examined Sh. Indu Shekhar Tripathi as DW-2. He tendered his evidence by way of affidavit Ex.DW2/A and relied upon the documents i.e. Original Bill Ex. DW2/1. He was cross examined at length by Sh. Vinod Kumar, Ld. Counsel for plaintiff.
(c) The defendant further examined Sh. Satish Kumar Murgai as DW-3. He tendered his evidence by way of affidavit Ex.DW3/A and relied upon the documents i.e. Office copy of the work order dated 05.06.2012 upon Sh. Hoti Lal is Ex.DW-3/1; The final bill dated 02.03.2013 raised by Mr. Hoti Lal is Ex.DW-3/2; Office copy of the work order dated 31.02.2012 upon Mr. Suresh Singh is Ex.DW-3/3; The final bill dated 13.06.2013 raised by Mr. Suresh Singh is Ex.DW-3/4; Office copy of the work order dated 05.06.2012 upon Mr. Vidya Nand Sahoo is Ex.DW-3/5; The final bill dated 21.01.2013 raised by Mr. Vidya Nand Sahoo is Ex.DW-3/6; Office copy of the work order dated 07.03.2012 upon M/s. Vikas Infrastructure is CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 7/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2024.11.08 17:05:08 +0530 Ex.DW-3/7; The final bill dated 08.01.2013 raised by M/s. Vikas Infrastructure is Ex.DW-3/8; Original bills of material is Ex.DW-3/9 (Colly.); Original muster roll of labour engaged is Ex.DW-3/10. He was cross examined at length by Sh. Vinod Kumar, Ld. Counsel for plaintiff.
(d) The defendant further examined Sh. Lal Chand, Sr. Manager, Bank of Baroda as DW-4 who brought summoned record i.e. statement of account Ex. DW-4/1 and he was not cross examined.
(e) The defendant further examined Sh. Saksham Darbari, Relationship Manager, Kotak Mahindra Bank as DW-5 who brought summoned record i.e. statement of account Ex. DW-5/1(running in 24 pages) and he was also not cross examined.
10) I have heard Sh. Vinod Kumar, Ld. counsel for plaintiff/non-counter claimant and Sh. Dilip Pandita, Ld. Counsel for defendant/ counter claimant have addressed the final arguments. I have meticulously gone through the record.
11) Issue no. i: Whether this court has to territorial jurisdiction to try and entertain the present suit? OPD The onus to prove this issue is upon the defendant. Ld. Counsel for defendant has argued that defendant does not want to address argument on this issue and let the issue be decided as per wisdom of the Court as it is a mixed question of law and fact.
On the other hand, Ld. Counsel for plaintiff has argued that the agreement between parties has been signed and executed in Delhi and therefore, this court has jurisdiction to entertain and try the present suit.
CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 8/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.11.08 17:05:15 +0530 Arguments heard. Record perused.
Admittedly, the registered office of defendant is within territorial jurisdiction of this Court and defendant has filed counter claim also. Therefore, it is held that this Court has territorial jurisdiction and try the present suit. Accordingly, issue no. i is decided in favour of plaintiff against the defendant.
12) Remaining issues:
Issue no. ii) Whether the plaintiff completed the civil works as awarded to the plaintiff vide work order dated 07.03.2011 & 27.05.2011 within time limit as provided in the work orderes?OPP Issue no. iii) Whether the defendant suffered damages on account of in- complete work left by the plaintiff and delay caused in completion of work?OPD Issue no. iv) Whether the defendant has rightfully adjusted the sum of Rs. 11,47,412/? OPD.
Issue no. v) Whether the plaintiff is entitled to recovery of suit amount, as prayed for? OPP.
Issue no. vi) Whether the plaintiff is entitled to interest, if so, at what rate and for which period? OPP.
Issue no. vii) Whether the defendant /counter -claimant is entitled to decree in the sum of Rs. 68,461.50/- from the plaintiff?OPD Issue no. viii) Whether the defendant /counter claimant is entitled to interest, if so, at what rate and for which period?OPD All the issues are taken together for the sake of brevity as all these issues are interlinked and involve same discussion.
13) Plaintiff's arguments:
It has been argued on behalf of plaintiff that there is no dispute that plaintiff was awarded civil work vide two work orders and plaintiff raised bills and defendant had made part payment. It has been argued that in CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 9/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:05:21 +0530 pursuant to first work order plaintiff has raised three RA bills which were approved and paid and now the dispute is only with respect to fourth RA bill issued for work done under second work order. It has been further argued that admittedly, plaintiff was given first work order vide work order dated 07.03.2011 and second work order dated 27.05.2011 on 28.05.2011. Had the plaintiff not completed the work well within time framed, then why defendant had not revoked the contract and got the work done from the another contract and why plaintiff was awarded another work order and it proves that plaintiff had duly completed the first work order well within due to which three RA bills were cleared. As far as the second work order dated 27.05.2011 is concerned, the work was not completed well within time as the material which were to be provided by the defendant, were not provided to the plaintiff. Moreover, defendant cannot deduct the liquidated damages of the first work order from the bill of second work order and at maximum, defendant can claim the liquidated damages with respect to second work order, however, defendant had not filed any calculation as to how defendant paid Rs. 12,17,645/-to other contractors. It has been further argued that the written statement of defendant had been signed by Mr. Vijay Kumar Berlia but he had not entered into witness box and therefore, adverse presumption is to be taken against the defendant's society as defendant has failed to examine its AR Mr. Vijay Kumar Berlia. Ld. Counsel for plaintiff has read over the testimony of plaintiff and has argued that plaintiff has been able to prove his case and there is no contradiction in his testimony. Further, Ld. Counsel for plaintiff has read over the testimony CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 10/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:05:26 +0530 of DW-1/Mr. P.C. Sabherwal and has argued that he admitted that he had not been authorized by defendant's society to depose on its behalf and he had not clarified in which capacity he was deposing as DW-1. It has been further argued that evidence of DW-1 is beyond the pleadings of defendant society and therefore, it cannot be relied upon by defendant to prove its defence. It has been further argued that during cross examination, DW-1 admitted that defendant was to provide material to the plaintiff and thus, he proved the claim of the plaintiff that work could not be completed as defendant failed to provide material to the plaintiff. It has been further argued that when the first work order was completed, bill was raised and entire payment was made then how defendant can claim liquidated damages qua the first work order because during cross examination DW-1 admitted that the bill dated 03.02.2012 was with respect to second work order and the damages were adjusted towards both work orders, which is not permissible. Further, Ld. Counsel for plaintiff has read over the testimony of DW-2 and has argued that even DW-2 had not authority to depose on behalf of defendant no. 2. It has been further argued that during cross examination DW-2 admitted that work done by plaintiff with respect to first order was satisfactory except the delay in completion and thus, he admitted that plaintiff completed the work and the onus is upon the defendant to prove that there was delay in completion of work but defendant had failed to prove the same. Further, Ld. Counsel for plaintiff has read over the testimony of DW-3 and has argued that DW-3 claimed to be financial advisor of defendant's society but he admitted that he was CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 11/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:05:32 +0530 neither the officer bearer of the society nor was authorized by defendant to depose on its behalf. Further, it has been argued that defendant failed to prove that Appeejay Engineering College,Old Campus is known as Appeejay Satya University as claimed by defendant and it proves the claim of plaintiff that the bills of other contractors filed by defendant pertain to different site and not regarding the site whose work was awarded to the plaintiff. It has been further argued that defendant failed to prove its defence that plaintiff had not completed the work and defendant got it done from third person and then rightly deducted the liquidated damages from the bill of plaintiff. Further, Ld. Counsel for plaintiff has pointed out towards the bill dated 27.05.2011 Mark-P1 and has argued that this work order duly mentioned the place of work and has been signed by Mr. Vijay Berlia on behalf of defendant and duly acknowledged on behalf of plaintiff on 28.05.2011 while the documents of other contractor as relied upon by the defendant, have not been acknowledged and signed on behalf of concerned contractors and even the site mentioned in the document is different and which creates a reasonable doubt over the credibility of these documents. Ld. Counsel for plaintiff has pointed out towards the documents Ex. DW-3/1 to Ex. DW-3/8 and has argued that these documents have no receiving or acceptance on behalf of concerned contractor and moreover, all these bills have been accepted for the amount mentioned in the bill while the bills given by the plaintiff were approved for lesser amount after deduction of TDS and other charges and it proves that the bills filed by defendant are forged and fabricated. It has been CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 12/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:07:02 +0530 further argued that defendant has not examined any contractor to prove the completion of work by them and the bills of other contractors don't pertain to the same side and thus, defendant failed to prove that it had rightly adjusted the amount towards the liquidated damages, therefore, the suit of the plaintiff is liable to be decreed and counter claim is liable to be dismissed. Ld. Counsel for plaintiff has relied upon the following judgments;
"Pawan Kumar Dalmia", RFA No. 180/2004;
"Prakash Rattan Lal Vs. Mankey Ram". C.M. (Main) No. 976 of 2007 & C.M. Appl. No. 9885 of 2007, date of order January 19; "Iswar Bhai C. Patel & Bachu Bhai Patel Vs. Harihar Behera & Anr." Decided on 16.03.1999;
"Vidhyadhar Vs. Manikrao & Anr", decided on 17.031999; "judgment of Hon'ble High Court of Bombay in case "Ganpati Narayan Nikam Vs. Ramchandra Bhiku Savant" decided on 17.08.2009;
14) Arguments of defendant:-
On the other hand, it has been argued on behalf of defendant that the court has to determine whether the time was essence of the contract between parties or not. It has been further argued that admittedly, two work orders were given to the plaintiff and the first work order was for Rs.
32,41,880/- qua which part payment was made. Further, Ld. counsel for the defendant has read over the plaint and has argued that in the entire plaint, there are no averments when plaintiff commenced the work and when he completed the same nor plaintiff has brought any evidence to prove that he had completed the work rather plaintiff admitted that he had left the site in between. Further, Ld. counsel for the defendant has read over the written CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 13/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:07:07 +0530 statement and counter claim and has argued that the first three bills were raised by the plaintiff after the dead line of completion of work and thus, even as per the admitted bills, plaintiff has not completed the work well within time. It has been further argued that payments were made of the running bills and only approved amount was paid and remaining amount was adjusted towards the liquidated damages as plaintiff failed to complete the work within time. It has been further argued that qua the first work order plaintiff has not placed on record anything to prove that he completed the work well within time and qua the second work order, plaintiff himself admitted that work was left in between. Further, Ld. Counsel for defendant has pointed out towards the email Ex. PW-1/D (Colly), relied upon by the plaintiff and has argued that all these email pertain to revision of rates only and there is no email to the effect that there is any hindrance on part of defendant due to which work is getting delayed. It has been further argued that in the rejoinder, for the first time, plaintiff claimed that the hindrance was due to defendant or the delay was due to acts of defendant. Ld. counsel for the defendant has read over the rejoinder filed by the plaintiff and has pointed out that had the plaintiff been honest, it would have disclosed in the plaint that work was left in between due to acts of defendant. It has been further argued that during cross examination, PW-1 admitted that work was for entire hostel though in rejoinder plaintiff stated that it was only for ground floor and first floor and thus, plaintiff himself proved that his averments in the pleadings are false. Further, Ld. counsel for the defendant has read over the testimony of PW-2 and has argued that even PW-2 had CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 14/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:07:15 +0530 admitted that work was for upper floor also, which is in contradiction in his averments in his affidavit Ex. PW-2/A. Further, Ld. counsel for the defendant has argued that DW-1 has deposed on the lines of defence taken by defendant in the written statement and he admitted that he was deposing on the basis of record only. It has been further argued that plaintiff has failed to cross examine DW-1 on material aspect and thus, it is an implied admission on part of plaintiff to the deposition of DW-1 which is in consonance with defence of defendant. Further, Ld. counsel for the defendant has argued that anyone, who is acquainted with the facts of the case, can depose as a witness and there is no bar that witness, who is not office bearer or employee of defendant's society, cannot lead evidence on behalf of defendant society. Further, Ld. counsel for the defendant has pointed out that in para no. 3 of the counter claim and in the annexure-A attached to the counter claim, defendant has shown the calculation of damages and defendant has duly adduced evidence to prove the quantum of damages. It has been further argued that all the DWs have duly proved the quantum of damages as well as the fact that plaintiff left the work in between due to which defendant suffered losses. Further, Ld. counsel for the defendant has read over the testimony of DW-3 and has also read over the documents Ex. DW-1/1 to Ex. DW-1/4 as well as the bills Ex. DW-3/1 to Ex. DW-3/10. It has been argued that these bills contain the material bill and labour bills. It has been further argued that with the help of bank statements produced by DW-4 & DW-5, defendant had proved that payments were made to third parties, who were engaged to complete the CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 15/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:07:21 +0530 work left incomplete by plaintiff, through cheque. It has been further argued that the chart of incomplete work has been filed during arguments and defendant has duly proved that delay was on part of plaintiff and therefore, the amount of liquidated damages has to be adjusted by the defendant. It has been further argued that during cross examination, PW-1 has admitted that last bill was verified for Rs. 11,47,421/- and plaintiff had not objected to the same and even to the previous bills, when the bills were approved for the lesser amount, plaintiff had received the payment without any protest and therefore, now plaintiff cannot claim that similar deductions were not made from the bills of other contractors. It has been further argued that defendant has not cleared all the bills of other contractors without deductions and Ld. counsel for the defendant has pointed out towards the relevant bills and has shown the deductions and has argued that the submission of plaintiff is incorrect. It has been further argued that the bills were raised for the extra amount but defendant had paid only contractual amount to everyone i.e. other contractors as well as the plaintiff. It has been further argued that from all the bills it is clear that each and every bill was reduced to contractual amount only. It has been further argued that plaintiff admitted that he left the work incomplete and defendant had proved that it got the work done from other contractor on higher rates and thus, defendant suffered the losses and accordingly, plaintiff is liable to pay liquidated damages to the defendant as per contract between parties. It has been further argued that the suit of plaintiff is liable to be dismissed and the counter claim is liable to be decreed. Further, Ld. CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 16/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:07:30 +0530 counsel for the defendant has relied upon the judgments:
"Mahanagar Telephone Nigam Ltd. Vs. Tata Communication Ltd.", Civil Appeal No. 1766 of 2019, decided on 27.02.2019; "Mahanagar Telephone Nigam Ltd. Vs. Haryana Telecom Ltd.", 2010 V AD (Delhi) 447, decided on 18.03.2010;
"Herbicides (India) Ltd. Vs. Shashank Pesticides P. Ltd.", CS (OS) No. 1362/1997, decided on 13.05.2011;
15) Arguments heard. Record perused. 16) Admittedly, defendant award two work orders to the plaintiff one
dated 07.03.2011(Ex. PW-1/DX) and second dated 27.05.2011 (Mark-P1).
Admittedly, plaintiff issued first RA bill Ex. DW-1/1, second RA Bill Ex. DW-1/2 and third RA bill Ex. DW-1/3 for the civil work at ASU, Sohna and all the three bills were paid for the amount approved by the defendant without any objections. The fourth RA bill DW-1/4 is for the civil work at proposed hostel faculty ASU, Sohna.
17) There is no dispute with respect to the work done by plaintiff under above mentioned four bills as during cross examination, DW-1 admitted that :
".....Whatever work was done under the first and second work order, the same was satisfactory. It is correct that the plaintiff had done the work under the second work order in the sum of Rs. 11,47,421/-. Though, the plaintiff had raised a bill of Rs. 15,71,796/- and same was verified by the site engineer of the defendant and of the plaintiff and verification of the measurement and workmanship it was found that the plaintiff has done the work in the sum of Rs. 11,47,421/-"
18) (a) Further, as per plaintiff the bills for the first work orders were Ex. DW-1/1 to. Ex.DW-1/3 and all the bills were duly cleared by the defendant without any objection and defendant withhold the payment of second work CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 17/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:07:39 +0530 order for the liquidated damages towards both work orders but defendant cannot deduct the liquidated damages from the first work order from the bill of second work order and moreover, if the plaintiff had not completed the work within the time frame, then why defendant had not revoked the first contract and awarded the second work order to the plaintiff.
(b) On the other hand, the defendant had taken plea that plaintiff had given running bill without specification of the work order and those bills were cleared but the fourth running bill was without hold due to conduct of plaintiff.
(c) As far as this plea is concerned, during cross examination, DW-1 admitted that :
"It is correct that liquidated damages was not imposed by the defendant in respect of first bill raised by the plaintiff. It is correct that liquidated damages were imposed by the defendant only in respect of the last RA bill pertains to second work order and was not imposed in the earlier bills....."
Further, DW-2 also admitted that:
"It is correct that the present case pertains to the second work order dated 27.05.2011. It is correct that claim of the plaintiff pertains only with respect to second work order dated 27.05.2011. (Vol. But the claim of defendant pertains to the first and second work order)......".
Thus, it is an admission on part of defendant that the fourth bill Ex. DW-1/4 is with respect to the second work order only and defendant has deducted the amount of liquidated damages of both the work orders from the bill of second work order. However, both the work orders are different contracts in the eyes of law and merely because parties to the work orders CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 18/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:07:45 +0530 are same, that does not mean that defendant can claim its right qua the first work order against the bill of second work order. Even if the running bills were given to the defendant, unless and until defendant is able to show that composite bills were issued for the work done at both sites i.e. ASU, Sohna and proposed ASU Faculty Hostel Sohna, defendant cannot make deduction towards both work orders from the bill of second work order and defendant has to separately prove its entitlement of the liquidated damages qua both work orders. Therefore, the defendant is not justified in adjusting the liquidated damages of both the work orders from the bill of second work order.
19) Now the defendant had taken the defence that plaintiff has not completed the work within time as per work orders and plaintiff left the work incomplete and therefore, defendant adjusted the last bill amount for approved amount towards liquidated damages and defendant has also raised counter claim for the remaining amount towards liquidated damages.
20) Section 55 of the Indian Contract Act 1872 provides that where time is of the essence of the contract, then failure to comply with stipulated timeline renders the contract voidable at the option of the promisee. The onus to prove that time is of the essence of the contract is upon the party claiming it. Generally in case of construction contracts, the timeline clauses in a contract by themselves are not sufficient to prove that time is of the essence of the contract and the true intention is to be gathered from a collective reading of the contract as a whole, the conduct of party and the surrounding circumstances. Thus, in essence, there is an assumption against CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 19/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:07:53 +0530 the time being of the essence of construction contract unless the agreement as a whole appears to be contrary. It is also settled principle that mere mentioning clause related to time is an essence, shall not amount a contract where time is an essence and where the promisee accepts the performance of the contract other than the agreed time, then he shall not be entitled for the compensation unless he has given notice to the promissor indicating his intention for accepting such performance subject to his claim of compensation for delay in performance/completion of the contract.
21) Now the defendant has relied upon the clause no. 5 of the work orders mark -P1 and PW-1/DX. The relevant clause is as follows:
"....Liquidated damages for delay in completion of this work for reasons attributed to you after taking into account the extension in the time schedule for valid reasons shall be 0.5% [1/2 Percent] of delay per week of value of contract work beyond the agreed period of completion, subject to maximum of 25% of the contract value. If the work is not completed within stipulated time, contract may be cancelled & the job may be awarded to other agency at your risk & cost.."
Thus, the clause is not unconditional but is dependent upon the factor that delay is not attributable to the defendant and it also states that in case of failure on part of plaintiff, the contract will be voidable at the option of defendant and it does not render the contract void at once, in case of delay in performance.
22) As far as the first work order is concerned, the defendant has taken the plea that plaintiff delayed in performance and left the work incomplete. To prove its contentions, defendant had relied upon the bills issued by other contractors.
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CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024
Digitally
signed by
PRABHDEEP
PRABHDEEP KAUR
KAUR Date:
2024.11.08
17:07:59
+0530
(a) Now as per first work order dated 07.03.2011 the work was to be
completed by 08.05.2011. Thus, admittedly when defendant awarded second work order to the plaintiff on 28.05.2011, the deadline for first work order had already expired. Interestingly at the time of second work order, defendant has nowhere raised any objection that the first work order has not been completed within time. It is against the ordinary course of business that the second work order would have been awarded to the plaintiff without completion of first work order within time, had the time been the essence of the contract. Therefore, the conduct of defendant in awarding the second work order to the plaintiff on 28.05.2011, without completion of first work order by 08.05.2011, without any objection on part of defendant, shows that time was not the essence of the contract. This conclusion is further corroborated by the fact that the second bill Ex. DW-1/2 qua the first work order was raised in July 2011 and third bill qua the first work order Ex. DW-1/3 was raised in October -November 2011 and defendant had cleared both the bills for the approved amount without any objection. The payment of bills raised by plaintiff after expiration of time-line of the contract, is an acceptance on the part of defendant thereby accepting the delayed performance and condonning delay.
(b) Admittedly, defendant had not served any written notice upon the plaintiff for non-completion of work within time. Moreover, DW-2 also admitted during cross examination that:
"......The extent of work done by the plaintiff with respect to the first work order was satisfactory except the delay in completion...."CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 21/28
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2024.11.08 17:08:09 +0530 Thus, DW-2 admitted that plaintiff has completed the work under the first work order, only delay was there. However, as already discussed, the defendant has not served any notice upon the plaintiff that defendant is accepting the performance by way of payment of bills subject to its claim of liquidated damages and thus, the conduct of defendant itself is equitable to waiver of clause of "time is essence of the contract".
(c) Further, defendant has relied upon the bills of other contractors i.e. Ex. DW-3/1 to Ex. DW-3/9 and has taken plea that plaintiff did not complete the work and defendant has to engage other contractors for getting the work completed of the first and second work orders and defendant has also appointed architect for supervision of work and thus, defendant ended in paying higher rates for completion of balance work.
Now the plaintiff has raised objections to the bills stating that bills pertain to other sites as all these bills mentioned the site as ASU (Appeejay Engineering College, Old Campus) while the site of the plaintiff was ASU and proposed faculty hostel, ASU.
Admittedly, none of the bills relied upon the defendant mentioned about the proposed ASU faculty hostel and all the bills mentioned the site as ASU(Appeejay Engineering College, Old Campus). The defendant has taken plea that both are same building, however, DW-3 admitted that :
"......It is correct that no document has been placed on record which reflects that Apeejay Engineering College, Old Campus is now known as Appejay Stya University. (vol. It is the same building)....."CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 22/28
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2024.11.08 17:08:17 +0530 Thus, defendant has failed to prove that both the sites are one and same. Moreover, even if it is considered that both sites are one and the same, it is not clear why the work orders given to plaintiff mentioned the site as ASU while the work orders given to other contractors, which were given later in time mentioned the site as ASU (Appeejay Engineering College, Old Campus) and it seems that the site mentioned in the work orders given to other contractors, used the terms "old campus" to identify and separate the site of the work order from the other sites or buildings.
(d) Further, Court is in agreement with the arguments addressed on behalf of plaintiff that both the work orders given to plaintiff had been duly signed and acknowledged on behalf of the plaintiff while none of the bills awarded to other contractors i.e. Ex. DW-3/1, Ex. DW-3/3, Ex. DW-3/5 and Ex. DW-3/7, had been signed or acknowledged by the concerned contractors and it raises doubt over the credibility of the work orders, though defendant has proved the payments to these contractors but the doubt is over the identification of the site and authenticity of the work done under the work orders.
(e) Further, it is also interesting to note that all the work orders given to other contractors i.e. Ex. DW-3/1, Ex. DW-3/3, Ex. DW-3/5 and Ex.
DW-3/7 are almost identical to the work orders awarded to plaintiff. In all these work orders given to other contractors, the timeline has been given as follows: In Ex. DW-3/1 dated 05.06.2012, 60 days; Ex. DW-3/6 dated 31.03.2012, 45 days; Ex. DW-3/5 dated 05.06.2012, 60 days and in Ex. DW-3/7 dated 07.03.2012, 45 days.
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However, the respective bills are Ex. DW-3/2 dated 02.03.2013(qua the work order Ex. DW-3/1 dated 05.06.2012); Ex. DW-3/4 dated 13.06.2013(qua the work order Ex. DW-3/3 dated 31.03.2012); Ex. DW-3/6 dated 21.01.2013(qua the work order Ex. DW-3/5 dated 05.06.2012) and Ex. DW-3/8 dated 08.01.2013(qua the work order Ex. DW-3/7 dated 07.03.2012).
Thus, all these work orders have not been completed within the time line mentioned in the work order and despite that defendant had paid the amount and it conclusively proves that the time was not the essence of the contract and defendant had taken the plea just to withhold the amount claimed by the plaintiff.
23) As far as the second work order is concerned, admittedly the plaintiff had left the defendant site on 25.03.2012.
(a) As per plaintiff, he left the site as no payment was received from the defendant and plaintiff has also claimed that the work was not completed by the plaintiff as defendant failed to provide the material to the plaintiff.
(b) On the other hand, defendant has alleged that plaintiff has never approached the defendant taking the plea that defendant is not cooperating or delay is being caused due to reasons attributable to the defendant.
(c) The plaintiff has relied upon the email Ex. PW-1/D(colly). As per defendant these emails pertained to the issue of revision of rates but nowhere plaintiff had raised the issue of non-cooperation of the defendant.
(d) Perusal of these email show that in the email dated 12.07.2011, plaintiff has asked the defendant to reconsider the rates due to surge in CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 24/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.11.08 17:08:29 +0530 price of certain material and thereafter in the email dated 22.12.2011 the plaintiff has raised the issue of increase in the work at two additional floors and in the email dated 12.01.2012, plaintiff has given estimation of timeline of work completion. Strangely defendant has nowhere objected to the timeline nor defendant has filed anything on record whereby defendant has intimated to the plaintiff that these fresh timelines are not acceptable to the defendant.
(e) Further, to prove his contention that defendant was to provide material to the plaintiff for completion of work and defendant failed to do so, plaintiff has cross examined DWs and during cross examination, DW-1 deposed that:
"......Question: I put it to you that vitrified tiles mentioned in item no. 5(a) and Udaipur Green Slab for flooring under item no. 7 were to be provided by the defendant to the plaintiff? What do you have to say?
Ans. It is correct. The requisition was to be made by the plaintiff and upon receipt of requisition the material would have been delivered by the defendant......"
Further, DW-2 deposed during cross examination that:
".....Q. I put it to you that the vitrified tiles in item no. 5(a) and Udaipur Green Slab for flooring under item no. 7 were to be provided by the the defendant to the plaintiff. What do you have to say?
Ans. I am not aware about the vitirified tiles. However, Udaipur Green slab was to be provided by the defendant...... .....It is wrong to suggest that Udaipur Green Stone were not provided by the owner that is why the work mentioned in item no. 7 of second work order could not be completed. (vol. The Udaipur Green Stone was available at site at all the time)...."
Thus, DWs admitted that some material was to be provided by the CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 25/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:08:37 +0530 defendant and there is a contradiction between testimonies of both DW-1 and DW-2 because as per DW-1, the material was to be provided by the defendant after requisition from the plaintiff while as per DW-2, material was already provided. However, defendant has not filed any bill or any other record to show or prove that the relevant material was already provided to the plaintiff as alleged by DW-2.
24) (a) Further, as per clause 5 of the work order mark-P1 and Ex.
PW-1/DX, the contract becomes voidable, in case work is not completed within stipulated time period. This clause nowhere makes the contract void ab initio if the work is not completed within time and therefore, the defendant was required to give a notice to the plaintiff that the work has not been completed by the plaintiff within time and therefore, defendant is revoking the contact and plaintiff is liable to pay liquidated damages as per contract.
(b) However, admittedly defendant has not served any written notice upon the plaintiff, as admitted by DW-1 during cross examination that:
"....The defendant did not issue any notice with regard to the non-completion of item no. 3a i.e. cement mortar, item no. 4a cement mortar, item no. 6 kota stone, item no. 7 painting of first work order Ex. PW1/DX. Vol. The plaintiff was orally reminded at site to expedite and complete the work..... ......Defendant had sent e-email to the plaintiff to complete the work of second work order. But I do not remember the date..."
However, no such email is on record whereby any intimation was given to the plaintiff.
(c) Further, DW-2 also admitted during cross examination that:
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2024.11.08 17:08:44 +0530 ".....No written notice has ever been served to the plaintiff for not completing the work above item. (vol. The plaintiff was being informed at site about the work not being done.....No termination notice of first work order was given to the plaintiff before awarding the balance work to the other contractor...."
It is highly improbable that when parties have entered into written contract and there is regular communication between parties by way of email, no written intimation would be given to the plaintiff for termination of the contract. Moreover, defendant cannot stop the payment in between and then expect the plaintiff to continue the work without payment nor defendant can assume the revocation of contract without serving notice upon plaintiff.
25) I have gone through the judgments filed by both the parties. All the judgments reiterate and reaffirm well established legal principle but none of the judgment is applicable to the facts in hand.
26) Further, plaintiff has filed the bills for Rs. 15,71,796/-. However, during cross examination, plaintiff admitted that "it is correct that last bill dated 03.02.2011 was verified by the defendant for a sum of Rs.
11,47,421/-".
Admittedly, even the previous bills raised by the plaintiff have been approved by the defendant for the lesser amount and plaintiff has received the amount without any objection and it proves that the bills raised by plaintiff were subject to approval of the defendant and plaintiff used to accept the same, therefore, even for the present bill, the amount approved by the defendant will be payable to the plaintiff. Accordingly, plaintiff is CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 27/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date:
2024.11.08 17:08:52 +0530 entitled for the approved sum of Rs. 11,47,421/-.
Plaintiff has also claimed interest at the rate of 24% per annum. It is unreasonable and exorbitant rate of interest. Considering the nature of transactions and prevalent rate of interest in the market, interest @ 9% per annum seems reasonable. Accordingly, all the issues no. ii to viii are decided in favour of plaintiff against the defendant. Relief.
27) In view of the abovesaid discussion as all the issues have been decided in favour of the plaintiff against the defendant. The suit of the plaintiff is decreed for a sum of Rs. 11,47,421/- along with interest @ 9% per annum from the date of institution of suit till the date of realization. The cost of the suit is also awarded in favour of the plaintiff. The counter claim of the defendant is dismissed and defendant is not entitled for any relief.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2024.11.08 17:08:59 +0530 Typed to the direct dictation and (Prabh Deep Kaur) announced in the open court District Judge-05, South East on this 08.11.2024 Saket Courts, New Delhi CS DJ No. 7657/2016 CIS No.DLSE010001192012 Page No. 28/28 CS DJ No. 699/2023 CIS No.DLSE 01-010053-2023 Dated 08.11.2024