Delhi District Court
Ms. R.K. Goel Abhay Kumar Jain vs D.D.A (Dhc) on 7 September, 2024
DLND010013902014
IN THE COURT OF DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 57989/2016
M/s R.K. Goel Abhey Kumar Jain
A registered partner,
through its registered partner
Sh. Nitin Jain
Having office at :
C-1/40, Ashok Vihar,
New Delhi
........ Plaintiff
Versus
1.Delhi Development Authority Through its Vice Chairman Having its office at :
Vikas Sadan I.N.A. Colony, New Delhi.
2. The Executive Engineer, ED-9 DDA, Seed Bed Park Complex, School Blockm, Laxmi Nagar, Delhi.
........ Defendants
Suit presented On : 04.07.2014
Judgment Pronounced On : 07.09.2024
CS 57589/16 page no. 1 of 30
M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A
EX-PARTE JUDGMENT
PLAINT
1. This suit has been filed seeking a declaration that ' No claim undertaking' for closure of Agreement no. 13/EE/ED-04/2006-2007 (hereinafter, referred to as 'The Agreement') is illegal and invalid and for recovery of Rs.4491950/- alognwith pendente lite and future interest @15% alongwith cost by the plaintiff claiming (a) that it is a registered partnership executing various construction works. (b) That the defendant invited tenders for execution of work named and styled as 'Development of Part facility Center near CBD Shahdra SH: C/O 18 meter vide Road, under Phase-I', in response to which plaintiff submitted the tender. (c) That vide intent letter no F.11(9)/EE/ED-04/DDA/2006-2007/329 dated 16.03.2007, the plaintiff was awarded the work for Rs.1,89,75,913/- to be completed within a period of 6 months to be reckoned from the 10 th day of issuance of letter of intent. Thus, the work was to be executed between 26.03.2007 to 25.09.2007. (d) That the Agreement was revised to Agreement no. 02/EE/ED-09/2006-2007 (e) That Eastern Division no. IX was made the incharge of the work. (f) That after the award of the work, the plaintiff made all arrangements for execution and completion of the work within the stipulated period. However, the work could not be started effectively as the clear workable site was not provided, Assistant Engineer and Junior Engineer were not deputed by the defendant and it was also unclear as to which division of the defendant would monitor the work. (g) That therefore, letters dated 04.07.2007 and 21.07.2007 were sent to the defendant notifying that they would be responsible for delay CS 57589/16 page no. 2 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A in execution of the work. (h) That on 08.05.2007 delays were purportedly admitted by the defendant. (i) That on 30.05.2007, a letter was issued ot the defendants giving detailed intimation of the permanent deployed staff at the site and followed by letter dated 15.06.2007 providing the particulars of graduate engineer. (j) That allegedly, till 1 st week of June 2007 as evidenced by letter no.237 dated 8.06.2007 of the Thermal Power House Rajghat (issued to the defendants), it is apparent that site for fly ash was not provided. (k) That the plaintiff was constrained to issue letter dated 14.06.2007 and 23.06.2007 highlighting the delays and defaults on the part of the defendants. A reminder was also sent on 17.07.2007. (l) It is stated that payments in this period were not paid as per the actual work done and due to the conduct of the defendants, the work could not be completed by 25.09.2007 and was prolonged beyond it and as such, time was not off essence of the contract. (m) That till 3rd May 2008, no provision extension was decided and communicated to the plaintiff though, during this period the plaintiff continued and remained at site. (n) That allegedly, as the job mix letter of BM (Bituminous Macadam) and DBC (Dense Bituminous Concentrate) had not been issued till 28.09.2007, as due to non-levelling of GSB (Granular Sub Base), the WMM (Wet Mix Macadam) work was delayed, balance items were also delayed on account of non-completion of retaining wall by the defendants, as a temple near Vishwas Nagar which came in the way of work was not removed even till expiry of the stipulated period and design and drawing for drain to be constructed had not been supplied as late as October 2007, the plaintiff again issued letters dated 11.10.2007, 18.10.2007 and 20.10.2007 to the defendants protesting the delays. (o) That at the request of the defendants, the job mix material were also got CS 57589/16 page no. 3 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A tested from I.I.T. Roorkee through letter dated 07.11.2007 sent alongwith two demand drafts for Rs.40,440/- dated 15.11.2007 and 17.11.2007 (towards testing charges). (p) That I.I.T Roorkee, vide letter dated 10.10.2007 also approved the job mix formula but once again due to non- availability of the site and closure of the Agreement, the process went waste. (q) That the progress of the work was adversely impacted due to irregular payments for work done and non-payment for extra/ substituted items and for wrongful deductions which was duly protested vide letters dated 14.11.2007, 20.11.2007 and 03.12.2007, 29.01.2008 and 07.02.2008 (r) That the supply of curb stones was arranged by the defendants in 3rd week of December 2007 but the decision and design of SFRC slabs and interlocking tiles were not provided till February 2008 as mentioned by the plaintiff in it's letter dated 05.01.2008, 29.01.2008 and 07.02.2008, issued to the defendants. (s) That allegedly, the defendants did not make available the complete site for BM (Bituminous Macadam) and DBC (Dense Bituminous Concentrate) due to non-completion of sewer line as late of March 2008. (t) That the plaintiff with a view to mitigate its losses on account of unutilized staff and overheads decided to seek foreclosure of the contract and finalization of account as it could not bear the expenses. Therefore, letter dated 05.03.2008 was sent and was followed by letters dated 17.03.2008, 25.04.2008, 08.05.2008, 15.09.2008, 13.10.2008 and 06.11.2008. (u) That it is in this scenario, that the plaintiff was coerced and pressurized and therefore, under duress constrained to give the 'No claim undertaking' and the defendants in principle treated the contract closed on 12.11.2008. (v) That since then, the plaintiff kept requesting for finalization of the account and payment of final bill vide letters dated 20.11.2008, 05.02.2009, 27.03.2009, CS 57589/16 page no. 4 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A 21.04.2009, 06.08.2009, 15.03.2010, 14.06.2010, 09.09.2010, 04.07.2011, 14.11.2011 and 14.03.2012. (w) That the final bill was prepared on 07.03.2012 and part payment was made on 26.04.2012. The security deposit was not released so letter dated 26.09.2012 was issued to the defendants. (x) That the plaintiff was verbally told by Engineer Incharge ED-IX that the accounts and bill would not be finalized and the contract would not be closed unless the plaintiff applied for extension of time beyond the stipulated period and the date of decision of the foreclosure of the contract. Hence, the plaintiff issued letter dated 01.10.2012. (y) That allegedly, instead the clearing the balance payment, the defendants on 30.05.2013 (3.5 years after closure of the contract in principle) imposed penalty of Rs.60 lacs for alleged unspecified delay of 17 days. However, the imposition of the penalty under Clause 2 of the Agreement is unjustified and without application of mind. It is stated that the contract was treated as closed on 12.11.2008, in principle whereas the period of extension has been considered till 14.11.2008. It is also stated that after 05.03.2008 till 14.11.2008 no work was executed on account of delay on the part of the defendants regarding closure of contract. (z) Statutory legal notice dated 21.06.2013 was sent to the defendants but to no avail. Thus, the plaintiff filed the present suit for declaration as mentioned above and recovery of money under the following heads:
Sr. No. Description Amount 1 Refund/ release of security deposit Rs.6,89,608/- 2 Release of amount withheld on account EOT Rs.1,70,000/-
in 2nd RA bill Rs.20,000/- alongwith final bill 3 Refund of cost of job mix design Rs.80,900/-
CS 57589/16 page no. 5 of 30
M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A
4 Release of amount withheld/ recovered in Rs.1,40,000/-
running bill for non stacking of fly ash in 2 nd RA bill 5 Amount withheld on account of Quality Rs.20,000/-
Control in 2nd bill 6 Loss of profit @15% on balance of the work Rs.10,03,404/- 7 Amount recovered in 3rd RA Bill on account Rs.1,91,557.84/-
of alleged non stacking of fly ash 8 Testing charges of the material payable by the Rs.1,37,529/-
defendants in the laboratory 9 Losses suffered/ damages incurred on account Rs.2,19,439.30 of increased cost of construction, labour, material 10 Losses suffered and expenses incurred on Rs.7,70,000/-
account of additional salary of permanent staff like Engineer, Munshi/ Site Supervisor, Watchman and ward staff etc. 11 Interest on the abovementioned amount from Rs.10,69,511.92 26.04.2012, the date of part payment of the /-
final bill till the date of payment @15% till 26.05.2014 Total Rs.44,91,950/-
WRITTEN STATEMENT
2. Written statement has been filed on behalf of the defendants taking preliminary objections as under:
a) That the plaintiff has not approached the Court with clean hands.
b) That the suit is barred by limitation and also under Section 53B of Delhi Development Act. 1957.
3. On merits, the Agreement is admitted. However it is denied that CS 57589/16 page no. 6 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A there was any hindrance or encroachment on site when the same was handed over to the defendant on 07.05.2007. It is denied that award of the work, the plaintiff immediately made arrangements for execution and completion of work. Allegedly, till 15.06.2007, plaintiff had not deputed site staff relying upon letter dated 07.06.2007 and 13.06.2007, it is stated that the plaintiff was asked to start the work with immediate effect. It is stated that as per entry dated 07.05.2007, 05.06.2007 and 15.06.2007 in the site register, it can be seen so. Hence, it is stated that delay from 07.05.2007 to 15.06.2007 was attributable to the plaintiff as the plaintiff only appointed Sh. S.C. Sharma, Civil Engineer after letter dated 13.06.2007 was issued to it by the defendants. It is stated that again on16.06.2007, the plaintiff was requested to depute requisite staff. It is denied that fly ash was not made available till June 1 st week. It is averred that plaintiff only contacted defendant n.1 on 05.06.2007 for the permission from Power Generation Com. Ltd. and defendant n.1 obtained the permission on 08.06.2007. Yet, till 16.06.2007 the plaintiff did not start the work of lifting the fly ash and delayed the progress of the work till 18.06.2007. It is also denied that laying, watering and rolling of fly ash was an extra items and beyond the terms of the Agreement. It is stated that repair of RR masonry wall was an extra item which was duly measured and paid for but it did not result in delay of execution of other work items. It is also stated that as per the entry dated 22.06.2007 in the site register, the plaintiff was asked to filling the fly ash but the plaintiff merely stated that stacking of fly ash at site was not possible and it was never the case of the plaintiff that availability of fly ash had become remote. Allegedly, the speed of the work was slow from the very inception and defendants issued a number of requests/reminders to the CS 57589/16 page no. 7 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A plaintiff orally as well as in writing. It is denied that time is not of essence of the contract. It is stated that since the plaintiff could not complete the work by 26.09.2007, it was granted extension of time till 31.09. 2008 without prejudice to the right of the defendants to recovery liquidated damages as per clause 2 of the Agreement. It is denied that the temple had any impact on the progress of the work. Rather, it is the case of the defendants that the temple was on the road of PWD. It is also stated that as per the terms of the contract, the plaintiff was under an obligation to provide sample material for job mixed design at site as well as test/ lab reports as per terms and conditions contained General Specifications forming part of the Agreement. Defendants had relied upon letter dated 29.09.2007 and 08.11.2007 to substantiate that work was being delayed due to shortcomings on the part of the plaintiff. It is also stated that all the drawings and designs were issued to the plaintiff as per the terms of the Agreement and in due course as already mentioned in letter dated 29.10.2007. It is stated that as per entry dated 22.06.2007 in the site register, plaintiff had intimated to the defendants that stacking of fly ash was not possible and therefore, withholding of payment by the defendants on this account was justified. Hence, vide letter dated 20.12.2007, the plaintiff was notified of the deduction of Rs.1,24,013/- for non stacking of fly ash and amount of Rs.1,40,000/- withheld on estimate basis was released to the plaintiff on 27.02.2008. It is averred that vide entry dated 19.10.2007 the plaintiff was again asked by the defendant to rectify the defects but without rectifying the same, plaintiff issued letter dated 20.10.2007 as near eyewash and was therefore replied to on 29.10.2007 for rectifying the defects. The defendants claims that slow progress of work is not attributable to the defendants and it is also CS 57589/16 page no. 8 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A asserted that all extra work was duly measured and paid for. It is denied that extra work had bearing on the main work. The defendants have stated that during the progress of the work, request was received from Delhi Jail Board, in February 2008, to stop the work as the sewer line was to go through the road. The plaintiff requested for closure of work on 05.03.2008 and no work was undertaken thereafter. The defendants claim that provision extension of time was granted to the plaintiff to complete the work bu 31.09.2008. On 12.11.2008, the plaintiff gave the impugned undertaking and the Agreement was closed on the undertaking on 14.11.2008. It is denied that the undertaking was given by the plaintiff under duress or coercion. It is stated that allegations are unsubstantiated. It is also stated that all codal formalities were not completed by 5he plaintiff for release of payments and so, letter dated 16.08.2010 and 09.09.2010 were issued to the plaintiff. It is the case of the defendants that the final bill was accepted to the plaintiff on 17.08.2010. Levy of penalty is stated to have been after scrutinization by the competent authority i.e. SE/CC-10DDA and is as per the Agreement because of extension of time as per letter dated 30.05.2013 clarify the issue. The claims of the plaintiff have been refuted as under:
Sr. Description Amount Reason for not paying No. 1 Refund/ release of Rs.6,89,608/- Since the issues relating to security deposit quality control have not been settled by the plaintiff Security Deposit amount could not be released by the defendant.
2 Release of Rs.1,70,000/- Since the issues relating to amount withheld quality control have not CS 57589/16 page no. 9 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A on account EOT been settled by the in 2nd RA bill plaintiff Security Deposit Rs.20,000/- amount could not be alongwith final released by the defendant. bill 3 Refund of cost of Rs.80,900/- Due to slow speed of job mix design execution of work from the very beginning. Plaintiff was under obligation to make available job-mix design to the defendant but failed to discharge his obligation in time. 4 Release of Rs.1,40,000/- Vide entry dated amount withheld/ 22.06.2007, plaintiff had recovered in intimated the defendant running bill for that stacking of fly ash non stacking of was not possible and fly ash in 2nd RA hence, vide letter dated bill 20.12.2007, plaintiff was notified by the defendant of deduction Rs.1,24,013/- on account of non-staking of fly ash. 5 Amount withheld Rs.20,000/- An amount of Rs.20,000/- on account of could be released to the Quality Control in plaintiff after settling the 2nd bill issue relating to the quality control by the plaintiff but the plaintiff was failed to do the same. 6 Loss of profit Rs.10,03,404/- It is stated that the plaintiff @15% on balance is contrary to his own of the work undertaking and changing his stand and claiming compensation on account of loss of profit arising CS 57589/16 page no. 10 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A from the closure of the contract which was based upon the undertaking of the plaintiff. The claim made by the plaintiff is irrational, exaggerated and without any basis under the law. 7 Amount Rs.1,91,557.84/- It was admitted that the fly recovered in 3rd ash was not done and earth RA Bill on was also not delivered at account of alleged the site by the plaintiff. non stacking of The plaintiff has merely fly ash raised baseless claims without appreciating the attending facts and in respect of these valid and legal deduction/ recoveries made by the defendant without any basis. 8 Testing charges of Rs.1,37,529/- Due to not filing of the material original bills of testing payable by the charges. defendants in the laboratory 9 Losses suffered/ Rs.2,19,439.30 Due to delaying the project damages incurred and extra cost suffered by on account of the plaintiff was on increased cost of account of defaults construction, committed by him. Also, labour, material the plaintiff while seeking closure of contract undertaken not to claim beyond the terms of the agreement. 10 Losses suffered Rs.7,70,000/- Plaintiff has claimed 14 and expenses months salary of Engineer, incurred on Supervisor and Chowkidar CS 57589/16 page no. 11 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A account of as designated by them at additional salary the spot stating that they of permanent staff did not undertake any like Engineer, other work. It is denied Munshi/ Site that the employees were Supervisor, present at the site. It is Watchman and also stated that claim of ward staff etc. the plaintiff is contrary to his own stand that no work had taken place since 29.02.2008 and claimed labour cost incurred for the period commencing of work on 29.02.2008 11 Interest on the Rs.10,69,511.92/- The plaintiff has computed abovementioned the higher rate of interest amount from and taken into 26.04.2012, the consideration the periods date of part during which work could payment of the not progress due to the final bill till the defaults on the part of the date of payment plaintiff. Therefore, the @15% till question of awarding 26.05.2014 interest does not arise. Total Rs.44,91,950/- REPLICATION
3. In the replication, preliminary objections have been denied and the contents of the plaint are reiterated.
ADMISSION AND DENIAL DOCUMENTS
4. No admission and denial of documents was carried out by the parties.
CS 57589/16 page no. 12 of 30
M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A
ISSUES
5. Vide order dated 19.01.2017 following issues were framed:
(i) Whether the plaintiff is entitled for recovery of Rs.44,91,950/- (Rupees Forty Four Lakh Ninty One Thousand Nine Hundred Fifty Only) along with pendente-lite and future interest @ 15% per annum from the date of filing of the suit till realization as prayed for. OPP?
(ii) Whether the plaintiff is entitled for relief of declaration as prayed for. OPP?
(iii) Whether the suit of the plaintiff is barred by limitation. OPD?
(iv) Whether the suit of the plaintiff is entitled for u/s 53B of Delhi Development Act, 1956. OPD?
(v) Relief EVIDENCE
6. To prove its case, plaintiff examined PW-1 Sh. Nitin Kumar who tendered evidence by way of affidavit Ex. PW1/A and relied upon the following documents:
Sl no. Name of document Exhibited
as
1 Form B [Rule 6] issued by Registrar of Firms, Govt Ex. PW1/1
of NCT of Delhi
2 Form A, Registrar of Firms Ex. PW1/2
(OSR)
3 Office copy for production of documents under Ex. PW1/3
Order XII Rule 8 of CPC and Section 65 and 66 of The Evidence Act 4 Postal receipt Ex. PW1/3A 5 Postal receipt Ex. PW1/3B 6 Computer generated tracking report Ex. PW1/3C CS 57589/16 page no. 13 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A Sl no. Name of document Exhibited as 7 Computer generated tracking report Ex. PW1/3D 8 Letter bearing no. F.11(9)/ED.4/DDA/206-07/329 Mark A dated 16.03.2007 sent to the plaintiff 9 Letter dated 04.04.2007 sent by the plaintiff to The Ex. PW1/5 Executive Engineer, Yamuna Sports Complex 10 UPC acknowledgment Ex. PW1/6 11 Letter dated 21.04.2007 sent by the plaintiff to The Ex. PW1/7 Executive Engineer, Yamuna Sports Complex 12 Letter dated 30.05.2007 sent by the plaintiff to The Ex. PW1/8 Executive Engineer, Yamuna Sports Complex 13 Letter dated 15.06.2007 sent by the plaintiff to The Ex. PW1/9 Executive Engineer, Yamuna Sports Complex 14 Letter bearing no. Dy.G.M.(C)/F-25(A)/D186 dated Ex. PW1/10 08.06.2007 sent by Indraprastha Power Generation Co. Ltd to The Executive Engineer (ED9), DDA 15 Letter dated 14.06.2007 sent by the plaintiff to The Ex. PW1/11 Executive Engineer (ED9), Yamuna Sports Complex 16 Letter dated 23.06.2007 sent by the plaintiff to The Ex. PW1/12 Executive Engineer (ED9), Yamuna Sports Complex 17 Letter dated 17.07.2007 sent by the plaintiff to The Ex. PW1/13 Executive Engineer (ED9), Yamuna Sports Complex 18 Letter dated 28.09.2007 sent by the plaintiff to The Ex. PW1/14 Executive Engineer (ED9), Yamuna Sports Complex 19 Letter dated 11.10.2007 sent by the plaintiff to The Ex. PW1/15 Executive Engineer (ED9), Yamuna Sports Complex 20 UPC acknowledgment Ex. PW1/16 21 Letter dated 18.10.2007 sent by the plaintiff to The Ex. PW1/17 CS 57589/16 page no. 14 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A Sl no. Name of document Exhibited as Executive Engineer (ED9), Yamuna Sports Complex 22 Letter dated 22.10.2007 sent by the plaintiff to The Ex. PW1/18 Executive Engineer (ED9), Yamuna Sports Complex 23 True copy of letter bearing no. Ex. PW1/19 F.5(5)2007/AE.V/ED-9/DDA/35 dated 07.11.2007 sent by DDA to Dr. S.S. Jain, Civil Engineering department, IIT Roorkee 24 True copy of letter bearing no. IITR/CED/DDA/ED Mark B 9/1012071 dated 10.12.2007 sent by Dr. S.S. Jain to Executive Engineer ED 9 25 Letter dated 14.11.2007 sent by the plaintiff to The Ex. PW1/21 Executive Engineer (ED9), Yamuna Sports Complex 26 Letter dated 20.11.2007 sent by the plaintiff to The Ex. PW1/22 Executive Engineer (ED9), Yamuna Sports Complex 27 Letter dated 03.12.2007 sent by the plaintiff to The Ex. PW1/23 Executive Engineer (ED9) (colly) 28 Letter dated 05.01.2008 sent by the plaintiff to The Ex. PW1/24 Executive Engineer (ED9) 29 Letter dated 29.01.2008 sent by the plaintiff to The Ex. PW1/25 Executive Engineer (ED9) 30 Letter dated 07.02.2008 sent by the plaintiff to The Ex. PW1/26 Executive Engineer (ED9) 31 Letter dated 05.03.2008 sent by the plaintiff to The Ex. PW1/27 Executive Engineer (ED9) 32 Letter dated 17.03.2008 sent by the plaintiff to The Ex. PW1/28 Executive Engineer (ED9) 33 Letter dated 25.04.2008 sent by the plaintiff to The Ex. PW1/29 Executive Engineer (ED9) 34 Letter dated 08.05.2008 sent by the plaintiff to The Ex. PW1/30 CS 57589/16 page no. 15 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A Sl no. Name of document Exhibited as Executive Engineer (ED9) 35 Letter dated 27.05.2008 sent by the plaintiff to The Ex. PW1/31 Executive Engineer (ED9) 36 Letter dated 15.09.2008 sent by the plaintiff to The Ex. PW1/32 Executive Engineer (ED9) 37 Postal receipt Ex. PW1/33 38 Letter dated 13.10.2008 sent by the plaintiff to The Ex. PW1/34 Executive Engineer (ED9) 39 Letter dated 06.11.2008 sent by the plaintiff to The Ex. PW1/35 Executive Engineer (ED9) 40 Letter dated 06.10.2009 sent by the plaintiff to The Ex. PW1/36 Executive Engineer (ED9) 41 Letter dated 06.08.2009 sent by the plaintiff to The Ex. PW1/37 Executive Engineer (ED9) 42 Letter dated 15.03.2010 sent by the plaintiff to The Ex. PW1/38 Executive Engineer (ED9) 43 Letter dated 14.06.2010 sent by the plaintiff to The Ex. PW1/39 Executive Engineer (ED9) 44 Letter bearing no. F.1(6)AEII/ED9/DDA/ Ex. PW1/40 2008/1348 dated 09.09.2010 sent by The Executive Engineer (ED9) to the plaintiff 45 Letter dated 04.07.2011 sent by the plaintiff to The Ex. PW1/41 Executive Engineer (ED9) 46 Letter bearing no. F.7(1)Misc./ED-9/DDA/1381 Ex. PW1/42 dated 16.09.2011 sent by The Executive Engineer (ED9) DDA to The Branch Manager, Dena Bank Wazirpur 47 Letter bearing no. DB/Deposit/1909 dated Ex. PW1/43 19.09.2011 sent by Dena Bank to The Executive Engineer (ED9), DDA 48 Letter dated 14.11.2011 sent by the plaintiff to The Ex. PW1/44 Executive Engineer (ED9) CS 57589/16 page no. 16 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A Sl no. Name of document Exhibited as 49 Letter dated 14.03.2011 sent by the plaintiff to The Ex. PW1/45 Executive Engineer (ED9) 50 Letter dated 26.09.2012 sent by the plaintiff to The Ex. PW1/46 Executive Engineer (ED9) 51 Letter dated 01.10.2012 sent by the plaintiff to The Ex. PW1/47 Executive Engineer (ED9) 52 Letter dated 09.03.2013 sent by the plaintiff to The Ex. PW1/48 Executive Engineer (ED9) 53 Letter dated 15.05.2013 sent by the plaintiff to The Ex. PW1/49 Executive Engineer (ED9) 54 Letter bearing no. F1(45)AE-II/Pt./ED-9/DDA/ Ex. PW1/50 1530 dated 30.05.2013 sent by DDA to the plaintiff 55 Legal notice dated 21.06.2013 Ex. PW1/51 56 Postal receipt Ex. PW1/52 57 Postal receipt Ex. PW1/53 58 Acknowledgment card Ex. PW1/54 59 Acknowledgment card Ex. PW1/55 60 Final bill Mark C 61 Running account bill Ex.
PW1/57A 62 IInd running account bill Mark D 63 Bill no. 56488 dated 16.08.2007 issued by Delhi Ex. PW1/58 Test House to The Executive Engineer, DDA, ED 9 colly 64 Abstract of Clause 10C Mark E 65 Internet download print out from Delhi.gov.in Mark F 66 Abstract of Clause 10C Mark G 67 Monthly wholesale Price Index Base year 2004-05 Mark F 68 Salaries monthly summary (01.04.2007 to Mark I 31.03.2008) of plaintiff 69 Salaries ledger account (01.04.2008 to 31.03.2009) Mark J CS 57589/16 page no. 17 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A Sl no. Name of document Exhibited as of plaintiff 70 Salary receipts Ex. PW1/65 colly 71 Copy of Agreement dated 19.03.2007 forming part Ex. PW1/66 of the Court record from page nos. 28 to 107 filed by the defendant with index dated 25.11.2014 FINAL ARGUMENTS
7. Final argument has been advanced by Sh. Vivekanand on behalf of the plaintiff and written submission has also been filed on behalf of the plaintiff.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
8. This Court has considered the submissions and material on record.
ISSUEWISE FINDINGS A) Whether the suit of the plaintiff is barred by limitation. OPD? (issue no. iii)
9. The onus to prove the issue was upon the defendant.
9.1 The defendant being ex-parte did not lead any evidence.
9.2 On the contrary, Ld. Counsel for the plaintiff has argued that the suit is maintainable as contract was closed on 12.11.2008. Thereafter, the CS 57589/16 page no. 18 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A defect liability period expired on 12.11.2009 and therefore, final bill and security amount became payable to the plaintiff under clause 17 and 17A of the Agreement. Further, it has been submitted that vide letter dated 09.09.2010 (Ex. PW-1/40) intimation of final bill was given and so, under Section of The Limitation Act, 1963 (hereinafter, referred to as The Limitation Act'), fresh period of limitation started to run. Again on 26.04.2012 as evidenced by Mark C (colly.), the part payment was made within 3 years of defect liability period and so, limitation under Section 19 of The Limitation Act stood extended. Also, letter dated 30.05.2013 (Ex PW-1/50) also establishes that accounts remained unsettled. Therefore, the suit is within limitation of 3 years of part payment and last admission/ acknowledgment of the jural relationship between the parties.
9.4 The Court has considered the statement and material on record.
9.5 The 'No claim certificate' under challenge was given vide letter dated 12.11.2008 wherein the plaintiff undertook 'We shall not claim any thing extra beyond the agreement, if my agreement is closed .' Then, the contract was in principle deemed to be closed w.e.f. 14.11.2008. However, the defendant itself has admitted in paragraph no.20 of the Written Statement that 'the decision of the defendant to close the contract was delayed as the plaintiff had failed to submit the required form in time.' Application for Extension of Time Part-I was submitted by the plaintiff on 03.10.2012. Therefore, the defendant has admitted that the payment of final bill was delayed. It can be gathered from evidence led that vide letter dated 01.10.2012, the EOT Part-I was submitted by the plaintiff and vide letter dated 30.05.2013 (Ex PW-1/50), the CS 57589/16 page no. 19 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A Superintending Engineer CC-10/DDA levied a deduction of Rs.60,000/- under Clause 2 of the Agreement for unjustified delay of 17 days and warned that if payment was not made within 15 days, the amount was to be recovered by the Government from the security deposit. Thus, the only irresistible conclusion which can be drawn is that the accounts between the parties remained unsettled. Therefore, cause of action arose thereafter and the suit is within limitation, therefrom.
9.6 Therefore the issue is decided against the defendant.
B) Whether the suit of the plaintiff is entitled for u/s 53B of Delhi Development Act, 1956. OPD? (Issue no. iv)
10. The onus to prove the issue was upon the defendant.
10.1 The defendant being ex-parte did not lead any evidence.
10.2 It has been argued on behalf of the plaintiff that provisions of Section 53B of the Delhi Development Act, 1957 are not applicable to the present case in view of Deluxe Estate (P) Ltd vs. Delhi Development Authority1 and M/s Lucky Star Estates (India) Pvt. Ltd vs. Delhi Development Authority2 because the suit in question is not for any act done under the act or rules and regulations, therein but for rights arising out of a contract governed by the General Civil Law.
10.3 In the considered view of this Court, as the defendant failed to discharge the onus upon it and it has not been proved that the suit against 1 Suit No.1259/1984 decided by Delhi High Court on 23.05.2003 (105 (2003) Delhi Law Times 2 R.F.A. (OS) No.10/1987 (AIR 2004 Delhi 428) CS 57589/16 page no. 20 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A the defendant was in respect of any act done or purporting to have been done in pursuance of the Act or Rules or Regulations thereunder, the bar under Section 53B(1) of Delhi Development Act would not apply. Be that as it may, prior to the filing of the suit, legal notice dated 21.06.2013 (Ex PW-1/51) was also issued and duly served upon the defendant calling upon it to make the payments and withdraw the letter dated 30.05.2013.
10.4 Hence the issue is decided against the defendant.
C) Whether the plaintiff is entitled for relief of declaration as prayed for? OPP (Issue no. ii)
11. The onus to prove the issue was upon the plaintiff.
11.2 It has been submitted on behalf of the plaintiff that it is entitled to the declaration that letter dated 30.05.2013 is illegal and invalid as it is submitted that the defendant has not led any evidence to substantiate the claim that there was delay of 17 days attributable to the plaintiff. Reliance has been placed upon Vishal Engineers and Builders vs. Indian Oil Corporation Ltd.3 to urge that penalty could only be imposed provided loss is shown. On the contrary, leading the Court through documents Ex. PW-1/5 to Ex PW-1/35, it has been demonstrated that delays on various accounts as mentioned therein were being flagged by the plaintiff and the same were attributable to the defendant. It has been submitted that the documents remained uncontroverted and the testimony of PW-1 has also not been traversed.
3 FAS (OS) No.204/2010 Decided by Delhi High Court on 30.11.2011
CS 57589/16 page no. 21 of 30
M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A
11.3 As regards, the 'No claim undertaking', it has been submitted that the plaintiff was compelled to take steps to cover legal and factual consequences which were imminent in view of the contract not capable of performance as the balance site was not made available and therefore, the plaintiff in order to mitigate further losses of idle overheads and establishments engaged in the work, release of security deposit and unpaid amounts had not option but to issue the undertaking. Thus, the testimony of PW-1 once again being uncontroverted has established that the undertaking was not voluntarily and therefore,is no consequence and validity. Issue is thus, decided in favour of the plaintiff.
11.4 During the course of arguments, reliance has also been placed upon the following judgments:
a) Bhartiya Construction Company vs. Delhi Development Authority4
b) Ultra Builders vs. Municipal Corporation of Delhi5
c) Delhi Development Authority vs. M/s. S.S. Sony & Co.6
d) Delhi Development Authority vs. M/s. S.S. Jetley7
e) A.S. Sachdeva & Sons vs. Delhi Development Authority8
f) J.G. Engineers Private Ltd. vs. Union of India and Anr.9 11.5 The defendant is ex-parte. The testimony of PW-1 affirming duress and compulsion in issuance of 'No claim undertaking' to mitigate losses is unchallenged. Also, the defendant opted to abstain from cross-
examining PW-1 on his affirmations that delay was attributable to the defendant and all the documents relied upon by him were also 4 Arb.L. R.372 decided by the Supreme Court of India 5 Suit no. 1514/ 1991 decided by Delhi High Court on 03.08.2001 6 FAS (OS) NO.54/1994, decided by Delhi High Court on 04.08.2008 7 FAS (OS) No.377/1999 (2000 (VII) AD (Delhi 8 1996 (1) Arb.L.R 9 Civil Appeal No.3349/2005 (AIR 2011 Supreme Court 2477) decided by Supreme Court on 28.04.2011 CS 57589/16 page no. 22 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A untraversed. The defendant also did not lead any affirmative evidence to establish that the delay of 17 days and losses suffered thereto, were recoverable from the plaintiff.
11.6 Hence, the issue is decided in favour of the plaintiff.
C) Whether the plaintiff is entitled for recovery of Rs.44,91,950/- (Rupees Forty Four Lakh Ninety One Thousand Nine Hundred Fifty Only) along with pendente-lite and future interest @ 15% per annum from the date of filing of the suit till realization as prayed for. OPP? (Issue no. i)
12. The onus to prove the issue was upon the plaintiff.
12.1 For the sake of convenience, the overheads under which claim has been sought are being dealt with separately.
a) Release of Security Deposit amounting to Rs.6,89,608/-.
13. The plaintiff claimed aforementioned amount for refund of security deposit and relied upon final bill Mark C. It has been argued that the claim has not been denied in the written statement. The original is stated to be in possession of the defendant and therefore, Mark C is admissible in evidence as despite service of notice dated 13.07.2017 (Ex P W-1/3), the original document was not produced. It is stated that the defendant has not proved that the amount admitted to have been deposit was payable after settlement of quality control but no evidence has been led.
13.1 The defendant has opted to remain ex-parte and has not led any CS 57589/16 page no. 23 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A evidence to show that the security deposit was liable to be withheld on account of any shortcomings in performance of the contract by the plaintiff. Hence, the claim is recoverable by the plaintiff.
b) Release of amount withheld on account of extension of time (EOT) in 2nd Bill Rs.20,000/- & Final Bill Rs.1,50,000/- ----- Rs.1,70,000/-.
14. By referring to 2nd RA Bill (Ex PW-1/57), it has been submitted that Rs.20,000/- was withheld by the defendant on account of extension of time and as per final bill Mark C, Rs.1,50,000/- has been withheld. Thus, it is submitted that Rs.1,70,000/- was withheld by the defendant. Once again, the defendant failed to lead any evidence to justify withholding of amount. Hence, it has been submitted that as there is no justification for withholding of amount, the same is to be released to the plaintiff.
14.1 Once again, the defendant has not justified as to why Rs.1,70,000/- on account of extension of time was not paid to the plaintiff. On the contrary, PW-1's testimony of it's entitlement to the same is unchallenged. Therefore, the claim is decided in favour of the plaintiff.
c) Release of cost of Job Mix design got by the plaintiff form IIT Roorkee --- Rs.80,900/-.
15. It has been argued on behalf of the plaintiff that letters Ex. PW-1/9 (colly.) alongwith two demand drafts for Rs.40440/- dated 15.11.2007 and 17.11.2007, each, are evidentiary of testing charges paid by the plaintiff and the test reports having been obtained from IIT Roorkee for CS 57589/16 page no. 24 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A Job Mix design. However, as the same was not used because the contract was closed on 12.11.2008 due non-availability of the site for road work, Rs.80900/-, spent by the plaintiff is payable.
15.1 The testimony of PW-1 and authenticity of PW-19 (colly.) has not been traversed. The claim of the plaintiff that the defendants are liable to pay and make good the expense because the cost of getting the Job Mix done and approved was part of the quoted rates for Bituminous Macadam (BM) and Dense Bituminous Concentrate (DBC) item of work awarded to the plaintiff has also not been challenged. Hence, the plaintiff would be entitled to the said amount as it was an infructuous expense incurred by it on demand of the defendant.
d) Release of amount withheld/ recovered in running account bills for alleged non-stacking of fly ash in 2nd RA Bill ----- Rs.1,40,000/-
16. Attention of the Court was drawn to 2 nd RA Bill (Ex. PW-1/57) which became admissible as ground for leading secondary evidence was proved since the defendant did not produce the original RA Bill. Thereafter, it has been argued that even though, the defendant admitted retaining Rs.124013/- for want of stacking of fly ash, it did not lead any evidence to show how as per the contract, it was to be stacked in a particular manner and was prejudice or loss, it led to.
16.1 The defendant has failed to lead any evidence to justify withholding the aforementioned admitted amount. The testimony of PW- 1 of it's entitlement to the same is unchallenged. Therefore the claim is CS 57589/16 page no. 25 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A decided in favour of the plaintiff.
e) Amount withheld on account of Quality Control in 2 nd RA Bill ----- Rs.20,000/-.
17. The claim has already been dealt with while deciding claim on release of amount withheld on account of extension of time.
f) Loss of Profit @ 15% on balance unexecuted value of Rs.66,89,364.33/- of the work ---- Rs.10,03,404/-.
18. Relying upon Ultra Builder vs. MCD and DDA vs M/s S.S. Sony, it has been argued that closure of contract under clause 13 is not sustainable after expiry of 20 months of award of work and due to non- availability of site, to cover it's failure, the plaintiff is entitled to loss of profit @Rs.15% on balance unexecuted value of the work. Reliance has also placed upon Delhi Development Authority vs Polo Singh & Co.10 18.1 Plaintiff has claimed that the unexecuted value of work was Rs.66,89,364.33/- as on 14.11.2008 and therefore, 15% of it amounting to Rs.10,03,404.65/- is payable. Yet again, the claim remains uncontroverted and decided in favour of the plaintiff.
g) Amount recovered in 3rd RA Bill on account of alleged non- stacking of fly ash Rs.1,10,348.32 and on account of earth in final bill Rs.81,209.52/- ---- Rs.1,91,557.84/-.
19. It is averred by the plaintiff that an amount of Rs.1,10,348.32/- and Rs.81,209.52/- was recovered by the defendant as admitted by the 10 2003 (66) DRJ 132 (DB) CS 57589/16 page no. 26 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A defendant due to non-stacking fly ash and earth brought at site for filling. However, no loss or expenses to the extent of these withheld amounts has been pleaded or proved by the defendants.
19.1 The defendant has failed to lead any evidence to justify withholding the aforementioned admitted amount. The testimony of PW- 1 of it's entitlement to the same is unchallenged. Therefore the claim is decided in favour of the plaintiff.
h) Testing Charges payable by the defendant for the tests of the material got done in the laboratory as per conditions of contract at pages 103 and 107 ---- Rs.1,37,529/-
20. Relying upon Ex. PW1/58(colly) it has been submitted that the plaintiff had got the test of the materials used in the work conducted in laboratory as per the conditions of the contract. The details of the same are as under :
Sl no. Bill no. Bill date Amount
1 56488 16.08.2007 Rs. 14,831/-
2 57104 03.09.2007 Rs.15,169/-
3 56732 22.08.2007 Rs.4,775/-
4 713397 29.10.2007 Rs. 7,753/-
5 712510 16.10.2007 Rs.20,225/-
6 715283 29.11.2007 Rs.26,292/-
7 717811 07.01.2008 Rs.33,483/-
TOTAL Rs. 1,22,528/-
It has been further submitted that the testimony of the plaintiff and the authenticity of the documents Ex. Pw1/58 (colly) have not been CS 57589/16 page no. 27 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A challenged by the defendant. Further, as per the conditions of contract the testing charges shall be reimbursed.
20.1 The testimony of PW-1 to the same is unchallenged. Therefore the claim is decided in favour of the plaintiff for sum of Rs.1,22,528/-.
i) Losses suffered/ damages incurred on account of increased cost of construction on account of increased rates of labour as per clause 10C of the contract Rs.1,64,824.30/- & losses on account of increased rates of cement as per clause 10CA Rs.54,615/- --- Rs.2,19,439/-
21. It is submitted by PW1 that as per Clause 10CA of the contract, the plaintiff was entitled to price variation / increase or decrease in the price of cement and labour wages during currency of contract March 2007 to November, 2008. The claims are as under:
Sr. No. Description Amount
1 Increased cost of construction on Rs.1,64,824.30P
account of increased rates of labour as
per clause 10C of the contract
2 Increase rates of cement as per formula Rs.54,615/-
applicable as per clause 10C of the
contract
Total Rs. 2,19,439.30P
The only reply of the defendant to this effect is that since the plaintiff delayed the work so clause 10CA payment was not made. However, the defendant has not commented on the calculation of the amount calculated under clause 10CA of the Agreement.
21.1 The testimony of PW-1 on the same is unchallenged and the CS 57589/16 page no. 28 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A defendant did not lead evidence to show delay on the part of the plaintiff. Therefore the claim is decided in faovur of the plaintiff.
j) Losses suffered and expenses incurred on account of additional salary of permanent staff hike Engineer, Munshi/ site supervisor and watch and ward staff for a period of 14 months from 26.09.2007 to 14.11.2008 --- Rs.7,70,000/-.
22. It is submitted that above expenses were incurred due to the delay and default on the part of the defendant as the work could not be completed within the stipulated period and was prolonged. It has been argued that till the closure of the contract payment of additional salary to permanent staff was as under:
Sr. No. Name and designation Salary for Amount 1 Sh. S.C. Sharma Rs.25,000/- p.m for Rs.3,50,000/-
(Engineer) 14 month
2 Sh. Pramod Bansal Rs.17,000/- p.m. for Rs.2,38,000/-
(Supervisor) 14 months
3 Sh. Shiv Charan Rs.6500/- p.m. for Rs.91,000/-
(Chowkidar) 14 months
4 Sh. Raj Kumar Rs.6500/- p.m. for Rs.91,000/-
(Chowkidar) 14 months
TOTAL Rs.7,70,000/-
As per the contract, the plaintiff was under contractual obligation to engage the services of a Graduate Engineer from the date of award till its completion and the Final Bill (Ex. PW1/56) also records the certificate of the engineer engaged till the last.
CS 57589/16 page no. 29 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A 22.1 This claim has been simply denied by the defendant but the defendant has also failed to lead any evidence to disprove the claim. The testimony of PW-1 of it's entitlement to the same is unchallenged.
Therefore the claim is decided in favour of the plaintiff.
23. However, there is no evidence to substantiate the rate of interest @15% either by way of contractual agreement or trade practice. Therefore, keeping in view the commercial nature of the suit, interest @ 12% per annum would be reasonable.
RELIEF
23. In view of above discussions, the suit is decreed for sum of Rs.33,87,436.84/- alongwith pre-litigation, pendente lite and future interest @ 12% per annum alongwith cost of the suit.
24. Decree sheet be prepared, accordingly.
25. File be consigned to records. VIJETA Digitally signed by VIJETA SINGH RAWAT SINGH Date: 2024.09.09 RAWAT 17:02:46 +0530 Pronounced in open Court (Vijeta Singh Rawat) on 07.09.2024 District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS 57589/16 page no. 30 of 30 M/s R.K. Goel Abhey Kumar Jain Vs. D.D.A