Delhi District Court
M/S Garg& Associates vs Municipalcorporationof Delhi on 19 November, 2007
69/06/96 M/S Garg& AssociatesVs. MCD -1-
IN THECOURTOF SH. INDERJEETSINGH
ADDL. DISTT. JUDGE,DELHI
M/S Garg& Associates,
(Engineersand Govt. Contractors),
8/B-5, SectorIII, Rohini,
Delhi-110085,
ThroughSh. RameshChanderGarg, partners.
....Plaintiff
Vs.
1. MunicipalCorporationof Delhi.
Throughits Commissioner,
TownHall, ChandniChowk,
Delhi.
2.(....deletedvide order dated09.04.1999)
Delhi DevelopmentAuthority
Throughits vice Chairman,
VikasSadan,behindINA Market,
NewDelhi-110023.
.....Defendants
Suit No. : 69/06/96
Date of Institution : 26.09.1996
Date of Decision : 19.11.2007
Appearance of the Counsels :-
For the Plaintiff : Shri B.M.Sehgal Advocate.
For the Defendants :Shri G. K. Srivastva,
Advocate
Shri S. C. Juneja,
Advocate
Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -2-
JUDGMENT
1.1. Plaintiff M/s Garg & Associates is a registered partnership firm of Smt. Sneh Lata Garg and author of the plaint Sh. Ramesh Chander Garg, who signed the plaint in this capacity of a partner. The plaintiff is a Civil Engineering firm and registered government contractorwith CPWD,Railwaysand Delhi DevelopmentAuthority. 1.2 The Delhi DevelopmentAuthority throughExecutiveEngineer (S) DD IV invited tenders on PWD Form-6 from the approved contractors for work of "Construction of Multi Storey and Sanitary Installations at plot no. 3,4 & 5 as Asaf Ali Road, Turkman Gate, Delhi-110002. SH: Construction of under ground reservoir of 3 lac liters capacity, pump house and generating set room for the above said work (remaining balance work)" ( hereinafter referred as "assignmentor work " in brief).
The plaintiff was contractor of category Class IV ( later on upgraded to class III) was competent to make offer and the defendant verified pre- qualification of the plaintiff firm and then issued a tender form to the plaintiff. The plaintiff offered, observed Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -3- and qualified the requisite terms prior to opening of the tender inclusive of condition of experienceand capacity to work, registration of the firm, financial capacity to work etc. The plaintiff offered the rates of the tender and it was plaintiff's single tender of rate of 145% above the estimated cost but Superintending Engineering of civil circle II had proposedwith further negotiation on the rates, therefore, fresh reduced rates to 101% above the estimated cost was agreed. The plaintiff came across a mistake in the tendered document but due to prohibition in the tenders for presentation, it was not pointed out since it may result into a disqualification. However during the negotiation of rates, it was clarified that recovery rate of payment should not be consideredas Rs. 2,285 per M.T but be consideredas Rs. 1,900/- per M.T and accordingly concessions in the rates were offered.
1.3 The defendant accepted the offer of plaintiff belatedly by letter No. D/24/TC/EE(S) IV/91-92 dated 6.1.1992 and work was awarded with approval of Superintending Engineering Civil circle II. On 13.1.1992 an agreement No. 23/DD IV/91-92 (hereinafter referred an agreement in brief) was entered between the parties.
Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -4- The assignment was to be started on 16.01.1992 and to be completed on 15.05.1992 being four months time for completion of the assignment.
1.4 The plaintiff allocated its resources and commenced the assignment with due diligence, the material was procured and information was given to the defendant by letter dated 7.2.1992. However the plaintiff face very definite problems of existing of water lying within the alignment of the side. The defendant was requested to remove the problem which was creating hindrance in start of the work but defendant paid no heed. The plaintiff requested the defendant for urgent steps in the matter by letter dated 17.06.1992,which was also regarding certain clarification about the provisions of drawing of pump house, base slab and to explain the positionof pipesinsertedbetweenthe commonwall and underground reservoirbut this letter annoyedthe defendant and they start blaming the plaintiff for slow progress of assignment. Hence the plaintiff decided not to write letter to the defendant to avoid such annoyance but made oral request politely for removal of difficulties. The plaintiff was category Class IV contractor and during the work in full swing, Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -5- the plaintiff had requested for up- gradation of firm from category Class IV to class III and consequently the plaintiff was issued certificate vide letter No. D/EE (S)/DD IV/92/93 dated 05.12.1992 to this effect, the defendant was fully satisfied with the performance,the financial capacity of the plaintiff firm and there was no hesitation in issuing the certificate, that is why the certificate/ letter dated 5.12.1992was issued. So far delay in performanceof assignmentis concerned, it is attributable to the defendant, on account of non provisions of exclusive possession of entire site, non provisions of stipulated material or drawings- architectural or structural, or non removal of waterlines and finally non release of amount as per terms of agreement. The hindrances encountered by the plaintiff were recorded in the hindrance register by the defendant itself. The cumulative effect of all such hindrancesresult into delayed execution of assignment. The plaintiff had requested the defendant for extension of time but defendant tried to trace reasons /pretext to refuse grant of extension of time and plaintiff was asked to execute the work which were not required to be done by him or to treat the work not completed whereas the assignment was completed in all aspects in December 1992. The completed sites/premises was Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -6- handed over the electrical department in December 1992 to install the pump etc. , which is matter of record of electrical division/department.
1.5 There are defendant's allegations that plaintiff failed to complete the following items No. 3(a), 3(b) and 4 of the special condition:-
Para 3(a) of Special Condition "Proper and adequate attention must be paid by the contractor to achieve water tightness and imperviousness of contracts, being an important basic requirement. Apart from achieving a mix of inherently low permissibility, it should be strictly ensured by the contractor that serious causes of leakage such as cracking, segregation and honey combing resulting from in serviceable and defective a huttering and in consistently vibrated concreteand joints beingthe potential courseof leakageare perfectly checked/sealedto the satisfactionof Engineer-in-charge." Para 3(b) of Special Condition 3(b) "The tank shall be tested either completion of roof slab for water tightness. The contractor shall make his agreement of water, for testing the tank. The testing shall be done as per relevant ISI Code to the full satisfaction of Engineer-in-charge. The cost of the test till be borneby the contractor."
Para 4 of Special Conditions The contractor shall be required to execute a bond of Rs.
Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -7- 10/- stamp paper ( non judicial) for guarantee against leakage and ten yearsat his ownrisk and cost."
Whereas neither the assignment of Clause 3(a), 3(b) and 4 were part of agreement nor the index of papers reflects such special conditions and it involved an element of special task attracting consideration and in the absence of consideration or agreement, the plaintiff was not under obligation to perform the extra work being envisagedin the special conditionsof paragraph3(a) and 3(b). The paragraphs 10 & 11 of plaint are regarding such special conditions and paragraphs 12 & 13 of the plaint are in respect of statutory provisionson law of contract ( Section2(d), Section10, Section70 of Indian Contract Act ) that without agreement or consideration the plaintiff cannot be compelled for performancesof taking special work of water tightnessor in imperviousnessof concrete. The plaintiff was not doing the work gratuity Lawful consideration is one of the essential requirement of enforcible agreementin terms of Section 10 of IndianContractAct.
1.6 The plaintiff apprisedthe defendantabout the facts as well as the law that it cannot be forced to execute the work/assignment Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -8- having no consideration. The plaintiff apprised the defendant that he is ready to do the extra work subject to assignment of work with consideration by treating the task of special conditions 3(a) and 3(b) as extra work, the plaintiff never refused or denied the special condition work but it was not the part of agreement, therefore, if the defendantwas requiring the extra work to be done by the plaintiff the defendantwas requiredto assign the task and pay the consideration.
The plaintiff completed the work physically in every aspects. Hence recession of contract by the defendant was illegal and erroneous. The plaintiff also clarified that execution of work at risk and cost or forfeiture of security deposit was illegal and unlawful. The plaintiff also served legal notice dated 22.02.1996 U/s 478 of DMC Act and Section 57-B of DD Act calling upon the defendant to pay Rs. 4,87,365/- + Rs. 1100/- as cost of the notice. The notice was replied, while denying the plaintiff's claim, that is why, later on, suit for Rs. 5 lacs has beenfiled.
Paragraphs15-A to 15-H depict plaintiff's claimas follows:-
i) Final Bill in respectof workdonerecorded Rs. 1,35,000/-
ii) securitydeposit Rs. 25,704/-
iii) loss suffered Rs. 30,000/-
iv) cartageof earth Rs. 3,899.40
v) extracost quarequirementof material Rs. 30,000/-
vi) damagessuffereddueto delayed Rs. 80,000/-
completionof work.
Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -9-
Vii) interest@ 24%w.e.f June1993,but for the last Rs. 2,13,132/-
threeyears.
Viii) interestcharges 1100/-
_______________
5,18,835.40
________________
The plaintiff restricts its claim to the recovery of Rs. 5 lacs instead of actual amount of Rs. 5,18,834.40. It has been explained that the work in respect of item no. 1 above was recorded in Measurement Book under the custody of Executive Engineer but payment was not made in final bill. The defendant had deposited earnest money /security but it has not been released on the allegations of forfeiture but plaintiff is entitled for its refund. A sum of Rs. 30,000/- in respect of item no. (iii) has been claimed that plaintiff was provided instructions and drawings and it had cut the steel accordingly, but later on drawings were changed and plaintiff was to procure another steel and to cut the same as per changed specifications. The plaintiff was compelled to dispose the steel procured and cut initially, in the open market at meager amount of Rs. 6000 per M.T and total quantity was 5 MT tonnes. The plaintiff carried out the carriageearth by mechanical transport which includes elements of loading, unloading and and stacking of earth to the Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -10- tune of 350 cubic meter but defendant paid consideration amount in respect of 240 cum. The plaintiff is entitled for remaining amount @ 17.69 per cum for 110 cum which come to Rs. 3,899.30 described
(iv) above. Since there were directions for closure of stone crushers within the Delhi by hon'ble SupremeCourt of India and plaintiff was to procure the stone grit from Toshamnear Bhiwanti at Haryanaand incurred extra cost, the plaintiff claims as Rs. 30,000/- (v above) .
The various reasons of delay in execution and completion of work were attributable to the defendant and paragraph 15-H depicts the losses suffered on account of employment of engineer, supervisor, chowkidars, idle machinery mixer, vibrator, diesel pump shuttering comes to Rs. 80,850/- but restricts his claim of Rs. 80,000/- as described in (vi) above. The claim of items i to iv was Rs. 3,04,603.40 on which plaintiff's claim interest of Rs. 2,13,132/- computed @ 24% PA from June 1993 but for the period of three years. By including legal notice charges of Rs. 1100/-, the total amountcomesto Rs. 5,85,004/-).
Hencethe presentsuit.
2. The defendant no. 1 MCD filed the written statement but Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -11- there was statement of counsel Sh. S. C. Juneja Advocate for defendant no. 2 DDA that the Slum Department is now under the MCD as such DDA has no concerned. Consequently suit was withdrawnagainstdefendantno. 2 DDAon 9.4.1999. 3.1 The defendant admits about the agreement/contract no. 23/DD IV/91-92 in respect of assignment but defendant denied all other allegations of the plaint reflected in paragraphs 1.1 to 1.6 above.
3.2 The suit is barred by Section 478 of DMC Act as well as Section53-B of DD Act as no requisite noticehas beenservedon the defendant no. 1 and defendant no. 2 respectively. Since there is an Arbitration Clause in the agreement, the suit is not maintainable. Additional Commissioner Slum of MCD, Vikas Kutir is a necessary party, since Slum & JJ Wing transferred to the MCD, but suit suffers from non-joinder of such necessary parties. There is no breach of contract by answering respondent, the suit is liable to be dismissed. The onus also lies on the plaintiff to prove its status of registered partnershipfirm or a registeredcontractorof CPWDor competencyof Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -12- Sh. RameshChanderGarg. 3.3 It was open to the plaintiff at the time of notice inviting tender
that if the contractor is not willing to work or undertake the contract, he was requested not to submit tender or the said work. The conditions of NIT were applicable upon all the eligible tenderors, as such plaintiff's contentionsregardingconditional tender/acceptanceis frivolous and wrong interpretation. The plaintiff had accepted the contract and offer was valid upto to 90 days from the date of issuing the tender and accordingly work was awarded within the stipulated period. The plaintiff has not reproduced correctly the contents of tenderagreementin the pleadings.
3.4 The plaintiff has not performed the assignment within the stipulated period deliberately and intentionally, they had committed breach of the contract. The plaintiff has always been showing irresponsible attitude which is reflected in defendant's letter dated 23.4.1996 and 23.5.1996. The plaintiff had not brought complete material at site, tor steel was brought in the last week of January 1992, one truck of bricks and one truck of coarse sand on 7.2.1992 Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -13- and 6.2.1992 respectively. However, when the material was put to testing it did not confirm the required standard and specification; it was rejected, letter bearing no. D/747/EE(s) AD-IV/992 dated 7.3.1992wassent by the ExecutiveEngineerto the plaintiff. 3.5 The plaintiff was awareof waterlineexistedin the rear portion of the space earmarked of construction of UGR but that was not causing any hindrance. The hindrance was so diminutive in proportion that the plaintiff was able to carry out excavation work in the clear major zone as the total area just could not consideredto be hindrancepronearea.
3.6 The plaintiff did not carry out the work according to architectural instructions or within the stipulated period and the entire delay was on the part of plaintiff. Whereas the plaintiff had handed over the site, architectural and structural drawings to the plaintiff but careless and negligence on the part of the plaintiff made the zone adjacent to other property as collapseprone zone and the unwanted portion was so excavated could also damage the waterline so detected passing across at the rear end. The plaintiff was allowed Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -14- withdrawal of requisite quantity of cement from cement store and defendant also fulfilled its other obligations on financial counts but plaintiff failed to act as per terms of agreement. The RCC works in raft foundation base slab commencedw.e.f 3.4.1992when period of 23 days were left for completion of entire work. One of the alarming part is reflecting serious repercussionof leakageof the work/tankon the part of plaintiff when tested by the department. Unwanted joints in casting of RCCmembersin foundationwork left out there-by giving rise to potential source of leakage as laying/casting of RCC foundationwork in undergroundreservoir startedon 23.4.1992lasted upto 29.4.1992 instead of continuous casting for avoidance of construction joints. It is an outcome of mismanagement of the plaintiff which was duly reflected in the site order book and other correspondence. In addition four number of column work started w.e.f 24.7.1992. The contractor was able to carry out the work of the value of Rs. 2,39,403/- upto 30.05.1992against the tendered cost of Rs. 5,16,644/-to havebeencompletedupto 15.5.1992. 3.7 The defendantalso deniesother allegationof the plaint or the letter sent by the plaintiff that the workwas regularly monitoredduring Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -15- the extended( provisional) period of contract and seepage were brought to the notice of plaintiff/ contractor to avoid further delay or from taking flimsy ground from absolving moral and legal responsibility. The contractor/plaintiff remained utter failure to complete the work which lasted upto December 1992 and ground of provisional extension of time did not mean that the performancewas satisfactorily and lastly dated 5.12.1992 was issued considering the submissive behavior of the plaintiff/ contractor, when the work was in progress.
3.8 The defendant was performing its obligations under the agreement are apparent from various record, alike possession of entire clear site was taken by the plaintiff on 14.1.1992, being apparentfromSite OrderBook., the cementindent was also issuedin advanceon 27.01.1992, which was brought on 30.01.1992. Similarly architectural and structural drawings were handed over on 14.01.1992, however waterline was removed on 18.4.1992 . Although there was ample scope of work in the adjacent portion of the site.
The plaintiff failed to performcontract in its entirety and nasty Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -16- letter dated 30.4.1996 with dirty stock of words were sent by the plaintiff. The plaintiff is givingtwist to the facts and circumstances. 3.9 It was a contractually obligation on the part of plaintiff to perform special conditions 3(a), 3(b) and 4 of the agreement in its true spirit but plaintiff failed to perform contractual obligation, the defendanthas got the work done in respect of original work of special conditions 3(a), 3(b) & 4 from other agencies. The plaintiff failed to realise the contractual Clause 2 of the agreement. The defendant had issued show cause notice to the plaintiff under Clause 3 of the agreement. The plaintiff was apprised about the consequenceof his failure to performthe work in its entirety despite no fault on the part of defendant. The defendant was left with an option let the work done from the other agencies at the risk and cost of the plaintiff, the defendant got the work done from the agencies other than the plaintiff. The special conditions 3(a),3(b) & 4 were part and parcel of the agreement, therefore, the relevancy of section 2(d) and Section 10 & 70 of Indian Contract are misplaced. The defendant also denies plaintiff's allegations or claim in respect of final bill, security deposit, loss suffered or damages or other amount disclosed in the Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -17- plaint, with a submissionsto dismissthe suit.
4. The plaintiff filed replication to the written statement of defendant no. 1 and it reaffirms the contents of plaint with explanation that the suit is not barred by statutory provisions of DMC Act or DD Act as notice was sent prior to filing of the suit. The Arbitration Clause/ agreement was deleted, therefore, it is not an attributableagreement. In India every contractis governedby Indian Contract Act and notice inviting tender is supposed to be governed with the same law. The plaintiff completed the work in December 1992 but it was not recorded by the defendant and plaintiff denies defendant's letter dated 23.4.1996, 25.5.1996 and 7.3.1992. The existenceof waterline at site revealed during start of the work and it was not revealed by mere inspection. The defendant has stated erroneously about the foundation work on 23.4.1992 and Site Order Book also contains erroneous information. Cement register, steel register, Site Order Book, hindrance register will depict the position that defendant was not diligent in providing the material. The plaintiff had pointed out the circumstances from time to time but it was not bothered by the defendant. The work was executed in terms of Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -18- agreement but special conditions 3(a),3(b) & 4 were never part of contract. It was not an obligationto providewater tight and leak proof underground reservoir and the schedule of the quantities of the agreement may be referred to this effect. There is no element of consideration for such extra work and defendant could not force the plaintiff to do such extra work without consideration. There was no breach of terms and condition of agreement by the plaintiff. The plaintiff was merely a licencee at the site and on completion of the work the site automatically transferred to the defendant, as plaintiff never refused to hand over the site but infact defendant refused to take over the site. The plaintiff never abandoned the work or site. The show cause notice under clause 3 of the agreement was erroneous and it was replied by the plaintiff. The plaintiff reaffirms the plaint as correct.
5. The following issues were framed on 20.3.2001 and an additionalissue7(a) framedon 12.10.2004:-
1.Whetherthe plaintiff firmis a registeredpartnershipfirmand plain is signedand verifiedby the duly authorisedpersonof the plaintiff firm?OPP
2.Whetherthe suit is barredby virtue of Section478 of Delhi MunicipalAct?OPD
3.Whetherthe suit is barredby Section-53-B Delhi Development Act? OPD Contd.
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4.Whetherthe claimof the plaintiff is barredby time?OPD
5.Whetherthe assignedworkwas completedby the plaintiff, if not, its effect?Onusof the parties.
6.Whether the plaintiff firm is entitledfor the amountclaimed?OPP
7.Whether the plaintiff firm is also entitledfor interest if so, at what rate and for what period?OPP 7(a)Whether the plaintiff has not complied with the terms and condition mentioned in para no. 3(a),3(b) and 4 under the heading specificationon page26 of the contract agreement?
8.Relief.
6. In order to establish the case plaintiff's partner Sh. Ramesh Chander Garg appeared in the witness box as PW-1 and then concluded the evidence. Sh. J.P. Singhal Executive Engineer of defendantno. 1 had proposedto enter into the witnessbox after filing his affidavit ( now Ex. DW1/P1). Sh. S. K. Aggarwal the then Executive Engineer appeared in the witness box as R-1 and concludedthe evidence.
At the phase of final arguments, both the parties have filed their writtensubmissions.
7.1 Issueno. 1 Whetherthe plaintiff firm is a registeredpartnershipfirm and plain is signedand verifiedby the duly authorisedpersonof the plaintiff firm?OPP 7.2 The onus to prove this issue no. 1 lies on the plaintiff. Sh.
Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -20- Ramesh Chand Garg, PW-1 claims in the plaint as well as in the evidencethat M/s Garg & Associatesis a registeredpartnership firm, he is one of the partner. The defendant had denied plaintiff's status of registered partnership firm with a submissions let the plaintiff to provethe same.
At the juncture of final arguments, defendants written submissions are silent on issue no. 1 but plaintiff reaffirms the contentionsmaintainedin the pleadingsand evidence. 7.3 On assessment,the plaintiff has provedFormA (Ex. PW1/1), Register of Firms reflecting the name of author of the plaint Sh. RameshChanderGarg as one of the partner and nameof Smt. Sneh Lata Jain another partner of the plaintiff's firm; Form B ( Ex. PW1/2) under the Partnership Act and Rules have also been proved by the plaintiff. In addition the defendant had filed agreement Ex. DW1/1 accompanyingpartnership deed of plaintiff firm. Thus I hold that the plaintiff has succeeded to establish issue no. 1 in its favour, the projection of defendant in the written statement remained merely a projection without any evidence to disprove issue no. 1. The issue no.1 is disposedoff in favourof plaintiff.
8.1 Issueno. 2 & 3 Contd.
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2. Whetherthe suit is barredby virtueof Section 478 of Delhi MunicipalAct?
3. Whetherthe suit is barredby virtueof Section- 53(b) Delhi DevelopmentAct?
8.2 The onus to prove issues no. 2 & 3 lies on the defendant. The defendant in its pleadings and evidence maintains that the suit is barred by statutory provisions of Municipal Corporation Act 1957 and D.D. Act 1957 for want of service of statutory notice prior to institutionof suit. In additionthe plaintiff failed to proveserviceof the mandatory notice . Whereasthe plaintiff contendscontrarily that the the plaintiff served the Delhi Development Authority and the Municipal Corporation of Delhi with the requisite notice U/s 53-B of D.D. Act and U/s 478 of DMC Act. The plaintiff has also proved service of notice by post on Municipal Corporation of Delhi, who had also repliedthe notice.
8.3 Alike Section 80 of CPC, an advance notice U/s 53-B of D.D Act or a notice U/s 478 of DMCAct is a mandatoryrequirementwhile instituting a suit against Delhi Development Authority or Municipal Corporation of Delhi respectively. On perusal of documents of the parties, the plaintiff had proved notice dated 27.2.1996 (Ex.PW1/19) Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -22- sent to Commissioner Municipal corporation of Delhi, Vice Chairman Delhi DevelopmentAuthority being a notice U/s 478 of DMCAct and Section 53-B of D.D. Act being parallel to Section 80 of CPC. The notices were sent by registered AD vide postal receipt, UPC Ex. PW1/19 (colly.),it was acknowledged by the office of Commissioner MCD Town Hall on 29.02.1996 as per AD Card Ex. PW1/19 and it was also acknowledgedby office of Vice ChairmanDDAVikasSadan at the counter dak as per AD Card Ex. PW1/19. The receipt of notice by Delhi Development Authority stands confirmed by defendant's letter dated 27.03.1996 Ex. PW1/4A to the plaintiff that the appropriate authority became Municipal Corporation of Delhi. Consequently plaintiff wrote letter dated 22.4.1996 Ex. PW1/21 to Commissioner MCD and Vice Chairman DDA reiterating that the notices sent on 27.2.1996is the notice under the provisions of DMC Act and DDAct. In additionthe defendant/MCDthroughits Executive Engineer (P) S&JJ replied plaintiff's notice. The notice Ex. PW1/19 containsall details fromthe inceptionof tenderwith the detail of work till the correspondence exchange between the parties on various aspects, therefore, the notice dated 22.2.1996 was given to the defendant prior to filing of the suit on 30.09.1996. Therefore, the Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -23- plaintiff has succeeded to prove that statutory notice given to the defendantprior to filing of the suit. The defendant could not establish that the suit is barred by Section 478 of DMCAct or Section 53B of D.D. Act. Accordingly issues no. 2 & 3 are decided against the defendant.
9.1 Issueno. 4 Whetherthe claimof the plaintiff is barredby time?OPD 9.2 The onus to prove this issue lies on defendant. According to plaintiff the suit is within the prescribed period and it is not barred by time. The plaintiff had served defendant with statutory notice dated 27.02.1996 Ex. PW1/19 to the defendant MCD and DDA. Since executivememberof DDA had receivedthe notice, but the work field was transferred to MCD, he redelivered the copy of said notice to MCD also on 27.03.1996. The MCD alleged to have received the notice on 18.04.1996 and replied ( Ex. PW1/21) on 01.09.1997. The cause of action also arisen on 18.04.1996 and further it was replied by the MCD on 01.09.1996. Lastly in terms of Section 28 of Indian Contract Act an agreement in restrain of legal proceedings is void or an agreement which extinguishes the rights of any party in respect of any contract on expiry of specific period so any party from Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -24- enforcing his rights is also void to that extent. Otherwise there is no concrete evidence on the part of defendant to prove that the suit is barredby time.
Whereas the written submissions of defendant are silent on the issue no. 4 but it appears from the record that being a point of law, the defendantcountsthe periodfromthe date of last billing. 9.3 Section 53-B (2) of D. D. Act and Section 478 ( 2) of DMC Act are identical provisions but former applies in respect of Delhi Development Authority and later enactment applies to Municipal Corporation of Delhi. The period of limitation stated to be computed fromthe date of causeof actionarises.
In the present case there are detailed and voluminous correspondence exchanged between the parties and majority of the correspondence pertains to clauses 3(a), 3(b) and 4 of special conditions,as the defendantmaintainsthat suchclausesare part and parcel of the agreement but according to plaintiff it was never the quantities of work scheduled with the agreement. The notice dated 27.02.1996( EX. PW1/19) is one of the thread of cause of action surrounding the dispute on the point of special conditions which was Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -25- replied by the Municipal Corporation of Delhi on 1.9.1996 (Ex.PW1/20), thereafter visualising the stands of Municipal Corporation of Delhi, the plaintiff filed the present suit on 30.9.1996. Apparently the suit has been filed within the prescribed period of limitation. The defendant failed to establish issue no. 4 in his favour and accordinglyissueno. 4 is decidedagainst the defendant.
10. ISSUESNO. 5,6 & 7(a)
5. Whetherthe assignedwork was completedby the plaintiff, if not, its effect?Onusof the parties.
6. Whether the plaintiff firm is entitled for the amount claimed?OPP 7(a)Whether the plaintiff has not complied with the terms and condition mentioned in para no. 3(a),3(b) and 4 under the heading specificationon page26 of the contract agreement? 10.1 Sincethe issuesno. 5,6 & 7(a) are overlappingeach other, therefore,they are takentogether. The onus to proveissueno. 6 lies on the plaintiff, the onusto proveissueno.7(a)lies on the defendant and onus to proveissueno.5 lies on the parties. 10.2 Before my discussion on the issues in the light of rival contentions, there are few objections of the parties on the claim of each other, but in the light of material on record, they can be dealt at Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -26- the first hand. For example, the plaintiff had narrated vital terms and conditions of agreement in para 5 of the plaint but defendant opposed it in para 5 of the written statement, para 5 of the plaint is not correctly stated. However, para 5 of the plaint is identical reproductionof table narratedin noticedated27.2.1996Ex.PW1/9but defendant's reply dated 01.09.1996Ex.PW1/20 does not dispute it, being a matter of record. Hence para 5 of the written statement is contraryto the contentsof reply Ex.PW1/20. Secondlythe defendant had not producedvariousrecordsalike MeasurementBook, record of hindrance Register, Cement Register, Site Order Book, Test report and completion report in respect of Tekno India Company Pvt.Ltd. and during the statement of DW-1 Sh. S. K. Aggarwal, such records were producednow the sameis Ex.DW1/P6to Ex.DW1/P11. Thirdly, at the time of enter into the agreementin respect of assignment,DW- 1 Sh. S. K. Aggarwal was not officiating as concerned Executive Engineer. Sh. J.P. Singhal, Executive Engineer preferred to enter into the witnessbox and he had filed his affidavit DW1/P1but prior to his entering into the witnessbox, Sh. S. K. Aggarwalfiled his affidavit R-1 and then enter into the witness box. Sh. S. K. Aggarwal was cross examined and he deposed specifically that he came into the Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -27- witness box and filed his affidavit on the basis of official record, para 2 to 19 of his affidavit R-1 are verbatim to the affidavit Ex.DW1/P1 of Sh. J.P. Singhal. To say witness DW-1 has no personal knowledge about the affairs involvedbut plaintiff has been in the picture fromthe time of furnishing of his tender then entering into the agreement with the defendant and thereafter execution of the assignment. With this background, the rival contentions on respective issues will be discussed.
10.3 On microscope of the case of both parties, the plaintiff contends that it has executed the assignment entrusted in terms of agreement, the assignment was completed and there was a delay attributable on the part of defendant. The plaintiff was not to execute the work on gratuity but it had tenderedwork/assignmentfor consideration. The Special conditions 3(a),3(b) and 4 were of specialised and technical assignment but the same were never part of the original agreement. The plaintiff was not under contractual obligation to undertakesuch assignmentof special conditionsClause 3(a),3(b) and 4. However, the plaintiff had not refused the work but contended that special conditions work of Clause 3(a), 3(b)& 4 are Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -28- extra items and it can be performed subject to an agreement and consideration. The work of special conditions 3(a),3(b) &4 was awardedto M/s TeknoIndia Comp.Pvt. Ltd., later on.
The plaintiff has referred his claim as depicted in paragraph 1.6 (i) to (viii) above of present judgmentand it has been contended that plaintiff's claim of Rs. 1,35,000/- being a final bill amount stands proved, even from the record of defendant. DW-1 admits that the final bill is prepared when the work is completed by the contractor and the final bill is prepared on the basis of Measurement Book, which reflects a sum of Rs. 1,03,089/-. The Measurement Book record Ex. PW1/P6 reflects various overwriting or reduction of quantities or amount, which are also illegible however an amount of Rs. 20,262/-, which is legible, has been reduced but without any reasons. The written statement also does not suggest any counter plea of the defendant, thus final bill of Rs. 1,35,000/- stands proved. Similarly security deposit of Rs. 25,704/- is a refundable security, the plaintiff has completed the assignment and there is no reasons for the defendant to retain the security amount. Defendant's own record of cementregister, hindranceregister or measurementregister do not suggest any defect in the work but the measurement book reflects Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -29- security amountof Rs. 25,704/- which was 10%of the estimatedcost of tender. Since the steel bar were to be cut according to specification and plaintiff had cut the steel bar, firstly, as per drawingssupplied and later on as per the amendeddrawingsbut the plaintiff suffered loss @ 6000 per MT of quantity 5 MT due to negligence and default of the defendant, as the steel bar cut according to erroneous drawings was to be disposed of at the meager cost. Similarly defendant failed to pay amount of 110 cubic meter of cartage of earth ( 350 less 250 cm) @ 17.69 per cubic meter. The plaintiff had to procure the material from Tosham near Bhiwani on the eve of closure of stone crusher within the territory of Delhi by the order of Apex Court and plaintiff had incurred Rs. 30,000/- extra which it is entitled to recover from the defendant. The plaintiff is also entitled for Rs. 80,000/- on account of damages suffered due to delay completion of work. Lastly, cost of notice of Rs. 1100/- and the plaintiff is also entitled for interest @ 24% PA for the last three years from the date of suit as well as pendentelite and futureinterest.
The plaintiff fortifies its contentions by referring statutory provisions of Section 2(d), 10 & 70 of Indian Contract Act. The Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -30- plaintiff also relies upon State of UP Vs. Chander Gupta AIR 1977 Allhabad29 whereinit was held that Section 70 of the Contract Act is not founded on contract but embodies the equitable principle of restitution. Government is not out side the operation of Section 70. While referring Clause 12 of the agreement vis-a-vis Section 70 of IndianContractAct, reliancehas beenplacedon B.K. Mandal& Sons Vs. State of West Bengal 1962 SC 779, that three conditions laid downby Section70 are:-
(i)) the personsshouldlawfully do somethingfor anotherperson;
(ii) the other person for whom something is done must enjoy the benefit thereof;
(iii) the thing done must not be done fraudulently or dishonestly nor must is be donegratuitously.
Hencewhenthe special conditions3(a),3(b) & 4 are not part of the contract and there is also no notice or instructions in writing by the EngineerIn-chargein context of Clause3(a),3(b)& 4 and also when there is no agreed or predetermined rates of payment/ consideration, the plaintiff cannot be forced to do the work being not part of original agreement. The defendant's witness DW1 corroborates the plea of plaintiff. The plaintiff also relies upon the followingprecedent:-
Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -31-
1. Bhartiya Construction Co. Vs. Delhi Development Authority 1997 (2) Arb LR 369 that there were disputes regarding handing over of site,drawings, design and material as well as levy of compensation under Clause 2 but the award of arbitration was made rule of court.
Consideringdelay in handingover the site drawingsdoes not or other material or changein specification;
2) P.C. Sharma Vs. Delhi Development Authority 1998 (2) RAJ 336 Delhi that the claimant was held entitled to receive compensation on account of prolongation of contract for reasons like hindrance or delay in makingavailablethe material at site. Since the claimant had to incur salary of engineer, staff and other un-contemplated overheads;
3) WEE AAR Constructive Builders Vs. Delhi Development Authority 2004(2) Arb. LR 600 (Delhi), it was held that the award of the Arbitrator was held proper even on the point of escalation under the agreement 10CC of the agreement and it was also held that Arbitrator was justified in awarding compensation with regard to damagesof site partly or delay in supplyingthe material.
4) Nav Bharat Construction Co. Vs. Delhi Development Authority1997(1)Arb. LR 541, it washeld that pursuantto Section73 of Indian Contract Act, party who suffers by breach is entitled to receive from the party who have broken the contract, compensation for any loss or damages caused to him thereby, the claimant was also held entitledfor pendentelite and futureinterest;
5) P.M. Paul Vs. Union of India AIR 1989 SC 1034, losses caused on account of increase in prices of materials and cost of labour and transport during the extendedperiod of contract would be within the purview or incident of contract. It was also held that escalation in the contract amount by Arbitrator would not amount to misconduct.
6) Jagson International Ltd. Vs. Oil & Natural Gas Corporation Ltd. 2004(2)R.A.J. 239 (Bombay),while dealingSection53 and 74 of Indian Contract Act on the point of quantumof damages, it was held that it is not necessary to prove by leading evidence but the party Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -32- committed breach must pay pre-determined damages to the other party.
7) M.L. Mahajan Vs. Delhi Development Authority 1992(2) RAJ 376 ( Delhi), on the point of security deposit, it was concluded that there was no justification for the defendant to withheld the security amountafter completionof the work or in termsof the agreement.
The plaintiff requests that it has succeeded to establish its case.
10.4 Whereas the defendant, in its written submissions, not only denied the plaintiff's claim but also found faults in assignment performed by the plaintiff. Firstly, the suit was evaluated as Rs. 5,18,835/- but claim was of Rs. 5,00,000/- in paragraph 16, without relinquishing claim of Rs. 18,835/-, this preposition is not tenable under the law. Secondly, the assignment under the agreement was subject to various specific conditions like water tightness and imperviousnessof concrete and so far apart from testing of the water tank, the plaintiff was responsiblefor any leakageof pipes, leakageof seepage etc. On the testing carried out by the defendant leakage was found and it was informedto the plaintiff by letters. The plaintiff failed to rectify the defects and defendant was compelled to award Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -33- the work to another contractor vide letter dated 23.11.1995who was paid final bill Ex.DW1/10. Hence the contract with the plaintiff came to an end on account of its faults. The defendant no. 1 cannot be held liable to pay anything. The plaintiff was, even, apprised of his obligationsby way of written letters (Ex.DW1/2,Ex.DW1/4)to perform the work of special conditions No. 3A, 3B and 4. However, the plaintiff disclaimed being bound by the contract but the defendant repudiated his claim by letters (Ex.DW1/5 and Ex.DW1/6). The plaintiff was also given letter Ex.DW1/7 to rectify the defect/leakage test and thereafter the plaintiff was apprised by letter Ex.DW1/8 intending to award the work to other agency at the cost and risk of the plaintiff and ultimately the work was awarded to M/s Tekno India PrivateLimited,beingreflectedin letter Ex.DW1/9. The plaintiff was providedthe architectural and structural drawings in time besides other material alike cement. In fact defendant had brought the material which was not as per specification or standard agreed upon and that is why it was directed to replace the same. Therewas no delayon the part of the defendant.
The measurement book is a matter of record and final bill was not preparedsince the work was not completed, despite Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -34- handed over the site in time followed by timely supply of material. The plaintiff is not entitled for any amount or for any damages. The security amountcan be refundedafter completion of work but as per procedure laid down in the terms of tender/contract. Since the plaintiff has not completed the work, the plaintiff is not entitled for such amount. Similarly, neither the plaintiff established his claim nor it is entitled for damages or other amounts enumerated in various heads. The defendant had invoked the provisions of contract of recession since he failed to perform the obligationof the contract, the suit deservesdismissal. 10.4 Firstly, the objectionswith regardto abandonof claim is being considered. In para 16 (page 26) of the plaint, the plaintiff restricts its claim of Rs. 5,00,000/- instead of amount of Rs. 5,18,835/- and para 16 is clear in itself that plaintiff abandoned its claimof Rs. 18,835/-, therefore, the defendant's contentionsdoes not carry any weight in this regard. Now the issues are being taken/considered.
11.1 On scrutiny and analysis of dispute, the defendant's case is that the plaintiff was assigned work under the agreementbut Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -35- it was performed defectively, at delay and plaintiff also failed to perform the obligations under special conditions 3(a), 3(b) and 4. Whereas, the plaintiff contends contrarily. Let us scrutinize the recordand evidence.
The plaintiff throughout in its letters or replies, which are letters dated 22.1.1994 Ex.PW1/6 (In reference to defendant's letter dated 5.1.1994 Ex.DW1/2) plaintiff's letter dated 11.5.1994 Ex.PW1/8 (in reference to defendant's letter dated 5.5.1994 Ex.DW1/4) followed by plaintiff's other letters dated 31.5.1994 Ex.PW1/11, letter dated 14.6.1994 Ex.PW1/12, that special conditions clauses 3(a), 3(b) and 4 were never part of contract and plaintiff was prepared to perform this task subject to considering an extra item and also subject to payment of consideration. Whereas the defendantin its letter referredas Ex.DW1/2,Ex.DW1/4Ex.DW1/8 and also any others letters dated 19.1.1994 Ex.DW1/3, letter dated 13.6.1995 Ex.DW1/7, letter dated 14.9.1995 Ex.DW1/8 and letter dated 23.11.1995Ex.DW1/9mandatesthat special conditions 3(a), 3
(b) and 4 are part and parcel of the contract, the plaintiff is under contractual obligation to perform such task. Now,what is the factual position?
Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -36- Witness DW1 had brought the record in respect of assignment under agreement of present case as well as the work assignedto M/s TeknoIndia PrivateLimited. He wascross examined specifically about the special conditions 3(a), 3(b) and 4, he deposed that..........."It is correct that there is no referenceof item no. 3(a), 3(b) and item no. 4 of special condition in the schedule of the quantities, item no. 3a, 3b are specialized work........ (further volunteered) not only item no. 3a and 3b are specializedwork but the entire work was specialized....... "It is correct that the items executed by M/s Tekno India Private Limited were not includedin the scheduleof M/s Garg & Associatesi.e. the plaintiff........"It is correct that itemno. 6 cited in the document special condition of Ex.DW1/1 has corresponding referenceto itemno. 9 of scheduleof quantitiesEx.DW1/P2........" By reading this testimony of DW1 in reference to the un-disputed agreement Ex.DW1/1and the work assigned and then performedby M/s Tekno India Company Private Limited, it (Ex.DW1/P4, Ex.DW1/P5suggestthat special conditions3a, 3b and 4 were not the contractualobligationof the plaintiff for the reason :-
(i) The schedule/quantity of work is Ex.DW1/P2 in respect of agreementof assignmentof work to the plaintiff, Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -37-
(ii) Thereare 63 itemsof quantities(Ex.DW1/P2)
(iii)The schedule of quantities is governed by Rule 3.1.1 of specification and conditions (Page 62 of agreement Ex.DW1/1) and as per this condition, the schedule of quantities will prevail over other things,
(iv)The statementof DW1is categorical that special conditions3a, 3b and 4 were not enumerated in the schedule of quantities. The defendant will not derive any benefit merely stating that the special conditions was part and parcel of the agreement and it was expected from the plaintiff to perform obligations of item no.
3a ,3b and 4,
(v)The quantity/schedule of work Ex.DW1/4 read with Ex.DW1/P5 assigned to M/s Tekno India Private Limited categorized specifically quantities of work to be performed,whichdoes not find mention in the agreement Ex.DW1/1 to be performed by the plaintiff,
(vi)The DW1admits that item no. 3a, 3b & 4 are the specializedwork and it is but natural in the eventuality of specialized work corresponding consideration or material are warranted as envisagedin case of M/s TeknoIndia PrivateLimited.
(vii)Water proofing work can be done by the special material like water proof cement etc, but the cement register Ex.DW1/P8does not depict such suppliesnor there was such instructionsin the site order book Ex.DW1/P9for provisionsfor waterproofingcement.
(viii)The defendant projected that for want of compliance of special condition 3a, 3b and 4, the work was either incomplete or defective but the award of tender Ex.DW1/P4 or the schedule of quantities Ex.DW1/P5to M/s TeknoIndia Private Limiteddoes not depict it as a defectivework or incompletework.
(ix)There is no record or observation by Executive Engineers at site either in the site order book or in the other record for non complianceof special condition3a, 3b by the plaintiff, Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -38-
(x)The index of agreement Ex.DW1/1 does not decipher special conditionclauses3a, 3b and 4.
Hence, I hold that the defendantfailed to proveIssue No. 7(a) that the plaintiff failed to comply the terms and conditions mentioned in para 3a, 3b and 4. The Issue No. 7(a) is decided against the defendant.
11.2 Now the second controversy is regarding the completionof the work, accordingto the plaintiff it had completedthe work but according to the defendant the work was incomplete and defective. Wehaveto look at the record,what it speaks?
On analysis of the correspondence exchanged between the parties vis-a-vis, the other record like site order book, hindrance register, cement register, experts test reports, it will be found that during the progress of work various ups and down were confronted by the parties. A few of them are, like availability of material commodity in the market, variationsin the price index, ecological and environmentalpositionand its protectionby orders by the Court vis-a- vis physical problems confronted at the site, which were latent and Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -39- patent in nature. However, the basic dispute between the parties was with regard to special condition clauses 3a, 3b and 4 (which has alreadybeendecidedin para 11.1 above).
The plaintiff wrote various letters inclusive of letters dated 23.5.1994 Ex.PW1/10 followed by another letter dated 31.5.1994 Ex.PW1/11 reiterating that work was completed in December, 1992 and seeking payment of fifth running account/final bill but the defendantobjectedthe sameas the work is incompletefor want of compliance of conditions 3a, 3b and 4. Had the conditions 3a, 3b and 4 a condition precedent, the plaintiff can be compelled to execute the undertakingon non judicial stamppaper as envisagedin clause 4 of the special condition, it was never pressed by the defendant. There is no other correspondence with regard to non completion of other 63 quantities enumerated in the schedule of quantities Ex.DW1/P2. The defendant had projected that the work was defected and it was got rectified by the department but there is no iota of evidence to suggest the nature of defect and as to when and how such defect was rectified, even it does not find mention in the assignment/work performed by M/s Tekno India Private Limited. Therefore, such projection of defendantremainedmerely a projection Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -40- but without any proof or independentevidence. Therefore, I hold that the plaintiff has completed the quantities of work enumerated in quantity Ex.DW1/P2 and plaintiff has succeeded to establish Issue No. 5 in its favour. Whereasthe defendantfailed to establishthat the plaintiff could not complete the quantities of work enumerated in the schedule Ex.DW1/P2. As a matter of fact the defendant had issued certificate dated 5.12.1992 in favour of plaintiff with regard to the working satisfactorily of the plaintiff, financial capacity etc., which corroborates plaintiff's case that the work was being done satisfactorily during the currency of agreement. In this way, the Issue No. 5 is decidedagainst the defendant.
Since the plaintiff has proved Issue No. 5 with regard to completion of assignment, its consequenceswould be its entitlement to receiveconsideration,whichis now subject matter of IssueNo. 6. 11.3 The plaintiff has bifurcated its claim in eight heads, the same are beingdiscussedin forth comingpara 12(i) to 12(viii). 12(i) Instead of referring to the voluminous pleadings and documents, at glance, the measurementbook Ex.DW1/P6reflect that Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -41- there was bill of Rs. 1,03,089/- (computed after various alterations, modification, over-writing, corrections etc.) which was never referred in the written statement of defendant but in the evidence of defendant, it was explained that the plaintiff is not entitled for any amount. It is an admitted case of both the parties that final bill paymenthas not been done as yet. The plaintiff laid its claimin para 15A with regard to the final bill but para 15 of the written statement makesa simple denial without any counter submissions. A few items in the measurementbook are legible (rectified/corrected) and various deductions were carried but no corresponding explanations have beengivenfor such variations.
The witness PW1 deposed on the line of his plaint with regard to final bill of Rs. 1,35,000/- but he was neither cross examined nor counter suggested on the final bill. Therefore, the plaintiff has succeeded to establish his claim of final bill of Rs. 1,35,000/-.
12(ii) There is no dispute of security amount of Rs. 25,704/- with the defendant but in written statement , the defendant contendedthat the plaintiff is not entitledfor amount. However,in the Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -42- written submissions, it was contended that it is subject to rules and regulations and security could be refunded on the completion of assignment, I have already hold in para 11.2 above that the plaintiff has completedthe assignmentin respect of quantities enumeratedin schedule Ex.DW1/P2. Thus, the plaintiff is entitled for refund of security amountof Rs. 25,704/-.
12(iii) The plaintiff claims Rs. 30,000/- on account of losses suffered due to supply of amended Architectural and structural drawingsand he had to procurethe fresh steel and get the samecut as per amended drawings, which result into discard of the steel cut according to previous drawings. Again without re-producing the pleadings or evidence of parties, the site order book Ex.DW1/9 reflects receipts of structural/ architectural drawings on 14.1.1992 at the inceptionof assignmentand there is no other record of supply of amended drawings by the defendant or receipt of such amended drawings by the plaintiff. Therefore, the plaintiff failed to establish supply of erroneous drawings or consequent losses or his claim of Rs. 30,000/- on account of losses, if any, suffered for disposal of 5 metric ton discardedsteel @ Rs. 6000/-per metric ton.
Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -43- 12(iv) The plaintiff was paid carriage of earth of 224.20
cubic metric @ 17.69p whereas the plaintiff's claim that it had performed work of 350 cubic meters whereas according to the defendant, the measurement was taken in the presence of each other and the plaintiff is not entitled for any other amount on carriage of earth.
The answer can be traced from the glimpses of entries containing in measurement book Ex.DW1/P6. There is no dispute of payment of carriage of earth for 224.20 cubic meter, there is also no dispute on rate of Rs. 17.69p per cubic meter (page 79 of measurement book). However, at page 88 of the measurement book, the excavation done was of 350.42 cubic meter, which also suggest that when the earth was excavated to the extent of 350.42 cubic meter it is but natural that the carriage of earth by mechanical transport would be 350.42 cubic meter. The plaintiff reflects its claim to the extent of 110 cubic meter, being the balance quantity of work to be paid. The plaintiff has succeeded to prove that there was carriage of earth by mechanical transport to the extent of 350 cubic meter but he was not paid for such entire task. Thus, plaintiff is Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -44- entitled for Rs. 3,899.40pfor carriage of earth of 110 cubic meter @ 17.69pper cubic meter.
12(v) The plaintiff claims of Rs. 30,000/- on account of procurementof material from Haryanaon the eve of closure of stone crusher within the territorial of Delhi because of order in public interest litigationby Hon'bleSupremeCourt of India.
At the time of agreement, it was unforeseen to the parties that eventualities like closure of stone crusher may happen during the performanceof agreementsince the law has taken its own course, the defendant cannot be blamed for such unforeseen instance. The plaintiff might have incurredsuch extra expenditurefor procurement of material in performance of its contractual agreement but for want of agreementon such eventualities, I am of the view that the defendant can not be burdenedwith such extra expenditure, if any, incurred by the plaintiff. Plaintiff's requests or claims of Rs. 30,000/-on this accountis declined.
12(vi) The plaintiff claims of Rs. 80,000/- (on account of salary paid to his Engineers @ Rs. 3,000/- per month, Supervisory Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -45- Staff @ Rs. 2,000/- per month, 2 Chowkidars @ Rs. 1,500/- per month each = 8000 x 7.5 months and idle machinery @ Rs. 3,000/- per month for a period 7 and half month) and watch and ward charges. The plaintiff maintains that it had also sent demand notice to this effect. The defendanthad deniedthe claimof plaintiff.
The hindrance register Ex.DW1/P7 speaks various circumstances happened from time to time and majority of them pertains to physical situation/problemsoccurred during the execution of work. Sincethe defendantwas regulatoryagencyand plaintiff was an executing agency monitored by Executive Engineers of the defendant about the work be performed through the technical and non-technical staff of plaintiff agency. The plaintiff has computed delay of 44 days for RCC work at Bed label, 10 days for brick work, 17 days for non provisionof lay out, 11 days of structural brick work, 4 days for RCC testing, 37 days because of disturbance in the wall city being a serious result of curfew on 7.12.1992. The facts containing in hindrance register suggests that out of 7 and half month, one month period of civil disturbance cannot be attributed to either of the parties but a law and order situation. The six and half month period of delay is on account of defendant for want of certain Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -46- steps warrantedin the execution of work. The clause 36 (page 38 of agreement Ex.DW1/1) mandates the employment of technical staff during the execution of work, although the plaintiff has not proved any registerregardingemploymentof Engineer,Supervisorystaff and chowkidar but there is also no counter objections or observations in the register maintained by the defendant for non compliance of clause 36 of the agreement. Hence, it stand established that the plaintiff had employed an Engineer, Supervisory staff and two chowkidar during those days when the work was delayed during the progress of work/assignment. So far idle machinery mixer, vibrator, diesel pump, shuttering, ward and watch charges after completion of assignmentetc. is concerned, it is not coveredunder clause 36. The plaintiff has succeeded to establish that such manpower of an Engineer, supervisory staff and chowkidar (total emolument Rs. 8,000/- per month) remained employed during the delay period of 6 and half month (7 and half month less one month). The plaintiff had to bear such overheadexpenditureof Rs. 52,000/-, the law laid down in case P.C. Sharma Vs. DDA (Supra) applies to the circumstances of the present case. Hence, the plaintiff is entitled for a sum of Rs. 52,000/-insteadof claimof Rs. 80,000/-.
Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -47- 12(vii) Now the total claim 12(i) to 12(vi) comes to Rs.
2,16,603/-. The plaintiff had computedthe interest on the amount of Rs. 3,04,603.40p., however when the plaintiff is not entitled of claim of Rs. 30,000/- on account of loss of discard of steel or Rs. 30,000/- as claim on account of procurement of material on higher rate or on the other amount of Rs. 18,000/- on account of idle machinery etc., plaintiff is also not entitled for interest on such heads/amount but certainly it is entitled for interest of Rs. 1,55,954/- being the amount calculated for the period of three years. The total amount comes to Rs. 3,72,557/-. Hence, the plaintiff is held entitled for interest of Rs. 1,55,954/-for a periodof three years prior to filing of the suit. 12(viii) Since the plaintiff had served the defendant with a notice dated 27.2.1996 Ex.PW1/19 being a statutory notice, it is entitledfor cost of notice of Rs. 1100/-as claimed. 12(ix) The plaintiff has succeeded to establish his claim of Rs. 3,73,657/- as decided in para 12(i) to 12(viii) being re-produced as under:-
Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -48-
12(i) : Rs. 1,35,000/-
12(ii) : Rs. 25,704/-
12(iii) : NIL
12(iv) : Rs. 3,899/40
12(v) : NIL
12(vi) : Rs. 52,000/-
12(vii) : Rs. 1,55,954/-
12(viii) : Rs. 1,100/-
-------------------------
Total : Rs. 3,73,657/-
==============
The plaintiff is entitled for claim of Rs. 3,73,657/- and accordingly Issue No. 6 is decided in favour of the plaintiff and against the defendant.
13 IssueNo. 7 :-
Whether the plaintiff firm is also entitled for interest if so, at whatrate and for what period? OPP The plaintiff has claimed interest @ 24% per annum in the legal notice dated 27.2.1996 Ex.PW1/19 but according to the defendant when the plaintiff is not entitled for any amount, the question does not arise for the payment of the interest. Recently in K.R. Builders Pvt. Ltd. Vs. DDA, 144(2007) DLT 741(decided on P28.9.2007), in a suit for recovery of amount, the point of interest was raised. In para 115 of the case K.R. Builders Pvt. Ltd., the Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -49- present prevailing simplerate of interest @ 12% per annumwas held an appropriate rate of interest. In order to strike balanceand in view of the latest market rate and ratio of judgment of case K.R. Builders Pvt. Ltd., the plaintiff is entitled for simpleinterest @ 12%per annum pendente lite and future (i.e. from the date of filing of the suit till the realizationof the amount)is awardedin favourof the plaintiff. 14 Relief :-
In view of my findings on various issues, particularly Issue No. 5, 6, 7a and 7, the plaintiff's suit is decreed for Rs. 3,73,657/-
alongwithsimple interest @ 12% per annumfrom the date of filing of the suit till its realization, coupled with cost of the suit, in its favour and against the defendant. Decreesheet be drawnaccordingly. File is consignedto RecordRoom.
Announcedin opencourt on 19.11.2007 (INDERJEETSINGH) AdditionalDistrictJudge, Delhi Contd.
69/06/96 M/S Garg& AssociatesVs. MCD -50- Contd.