Delhi District Court
M/S Pride Constructions vs Delhi Development Authority on 22 August, 2017
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Civil Suit No. 3/17/97
Civil DJ- 8283/16
M/s Pride Constructions
C-3/12, Krishan Nagar,
Delhi -110051
through Shri Davinder Kumar Nijhawan
Partner
..........Plaintiff
Vs.
Delhi Development Authority,
through its Vice Chairman,
Vikas Sadan,
Behind I.N.A. Market,
New Delhi-110023
......Defendant
Date of institution of the case : 26.05.1997
Date reserved for judgment on : 01.08.2017
Date of pronouncement of judgment: 22.08.2017
JUDGMENT:
1 A suit for recovery of Rs. 5,00,000/- alongwith court fees of Rs. 7225 has been filed.
2 In brief the facts are that the plaintiff M/s Pride Construction is a Partnership firm duly registered under Indian Partnership Act. Shri Davinder Kumar Nijawan and Sh. Prithwi Raj Miglani are the partners of the firm and in such capacity both of them are competent to sign, verify and file the present suit.
CS No. 3/17/97 M/s Pride Constructions Vs DDA 1/27 3 It is stated that plaintiff firm is government contractor duly registered with C.P.W.D and with defendant also. The Executive Engineer, Wester Division No. 9, DDA invited sealed item rate tenders on behalf of Delhi Development Authority, from the approved contractors of appropriate Class in DDA, C.P.W.D; Mes and P & T. The tenders duly quoted by contractors were receivable up to 3 P.M. on 23.08.1993 in the office of the said Executive Engineer and were to be opened on the same day. The tender documents were available on, the working day between 10 A.M. to 3 P.M. on payment of Rs. 150/- as cost of issuance of the tender form. Before the issuance of tender form, it was incumbment on the part of intended tenderer to have produce a valid I.T.C.C and registration certificate. The plaintiff firm accordingly produce the valid I.T.C.C. and registration certificate.
4 It is stated that after due verification of two, a tender form was issued to plaintiff firm. The plaintiff firm accordingly offered its rates which were lowest among all tenderer's consequently offer made by the plaintiff firm was accepted by said Executive Engineer of Northern Division No. 9 vide his letter No. 55(4)/WD-9/A/93-94/1243 dated 9.11.1993. A formal agreement was also executed between the parties in relation thereto on 11.11.1993. The plaintiff was directed upon to provide the copy of partnership to make it part of agreement which was duly provided and attached to agreement.
5 Thereafter plaintiff mentioned in the plaint the vital fact and vital dates of contract in disputed as under:-
(i) Name of Work : Development of land for Dwarka Project Phase 1, in South West of Delhi, SH: Providing and fixing Grill CS No. 3/17/97 M/s Pride Constructions Vs DDA 2/27 fencing around master plan green in Sector 20.
(ii) Date of application and its receipt by defendant :
28.07.1993
(iii) Date of issue of an incomplete tender from as it was not accompanying the relevant drawings etc. : 31.07.1993
(iv) Date of opening of tenders: 23.08.1993
(v) Date of negotiation of rates, whereby the plaintiff firm reduced rates of item No. 5 of random rubble Masonry: 19.10.93
(vi) Date of acceptance or rates offered by the plaintiff firm:
09.11.1993
(vii) Date of signing of formal agreement between plaintiff firm and defendant : 11.11.93
(viii) date of start of work : 19.11.93
(ix) Stipulated date of completion. (Time stipulated to complete work is 5 months) : 18.4.1993
(x) Actual date of completion: 13.3.1996
(xi) Date of payment of final : 30.11.1996
(xii) Date of notice under Clause No. 7 of the agreement:
28.12.96
(xiii) Date of notice under Section 53 (b) of Delhi Development Act: 10.2.1997
(xiv) Estimated cost of work: Rs. 36,50,082/-.
(xv) Tendered amount of work: Rs. 50,83,528/- (xvi) Percentage rates for purposes of clause No. 12: 45.27% (xvii) Total delay in completion of work: 39 months 6 It is stated that in order to complete the work within stipulated period of five months, plaintiff firm, allocated all its resources and procured huge material which was incorporated in CS No. 3/17/97 M/s Pride Constructions Vs DDA 3/27 agreement and also stationed machinery and other tools and plants needed in the execution of work. Employed the salaried staff like Engineers, Munshies, chowkidars etc. The plaintiff firm reduced the aforesaid fact into black and white vide his letter dated 4.11.1994. In terms of schedule of quantities of agreement "square pipes of 50x50x50 2MM" were required for fabrication of grills i.e item no. 11. As the said commodity was not readily available in open market, a request, was made to the defendant for its substitution to ""square pipes of 50x50x50 2MM". The defendant did not give any appropriate response to it for a long time causing unnecessary delay in the execution of work.
7 It is stated in terms of Clause No. 10 and as per "
Schedule of material to issue" the defendant was obliged to issue only commodity viz cement, to tune of 351 MT @ Rs. Rs.2200/- per M.T. from DDA's store a G.T. Karnal or at Mayapuri. The cement was neither provided in time nor as per the required quality. The reference be made to Indent No. 052205 dated 29.12.93, issued at Mayapuri store, the cement issued to plaintiff firm was not conforming to specifications, because part of it was defective and set. The defect was duly communicated to the Executive Engineer but no action from their side despite, the fact was observed by staff viz A.E. & J.E. No steps for replacement of defective cement was initiated and plaintiff firm was forced to use defective cement.
8 It is stated that apart from explained problem other problem was that site conditions were not conducive to start work because the site and its adjoining area were theft prone.
CS No. 3/17/97 M/s Pride Constructions Vs DDA 4/27 The Vice Chairman, DDA visited to the site on 14.01.1994 and directed not to affix any grill in the area and vide letter no. 55(4)/WD-9/A/93-94/1715 dated 02.02.1994 instructed the plaintiff firm to stop work instantaneously. Remove the grills already affixed, otherwise a threat was held out that either grills be dismentalled or those should thrown away. The threats held out in the letter dated 2.2.1994 were against the spirit of agreement because defendant had no right to either dismental grill or to throw it away. The plaintiff firm immediately stopped the work and removed already fixed grills and accordingly informed the defendant about it.
9 It is stated that plaintiff firm before the receipt of above said directions had executed the item of random rubble masonary, got fabricated grills to the extent of 20 M.T. and 10 M.T., paid advances and was lying with fabricator. An information to such an extent was given to defendant that grill was lying with "Delhi Window Factory" as the site of execution of work was theft prone. To be more safe the plaintiff firm demanded release of secured advance under clause 10 (d) for entire material procured. The defendant did not budge to accede any of the suggestions made by plaintiff and paid no heed to it. 10 It is stated that apart from the aforesaid hindrances the problem encountered by the plaintiff firm were created by another agency who was executing the work of laying of sewer lines, in order to save his labour in transportation of material and time dismentled a number of places of the compound wall and compound walls duly constructed by the plaintiff firm. The defendant turned a deaf ears to the strong protests raised by the plaintiff firm.
CS No. 3/17/97 M/s Pride Constructions Vs DDA 5/27 11 It is stated that there were number of acts of omissions, non-co-ordination and undecisiveness on the part of the defendant. In this connection the plaintiff firm refer two letters of defendant one dated 2.5.1994, whereby instruction was given to plaintiff to remove even a single grill if remained undismentalled earlier. Only on next day on 3.5.94 another letter was received whereby the plaintiff firm was instructed upon to restart the fixation of grills immediately. This was followed by a unilateral grant of " Provisional extension of time" by defenant up to 28.5.94 to complete the balance work of approximately Rs. 40,00,000/- within 25 days for which previously five months time was granted to complete.
12 It is stated that even though compound wall was damaged by other agency, the plaintiff firm instead was instructed upon to repair it otherwise it shall be got repaired at risk and cost of the plaintiff firm. This threatening created a mental tension for the plaintiff firm and due adamentness of Executive Engineer was left no option but to repair it.
13 It is stated that vide letter dated 3.6.1994, informed the defendant that an over all increase in rates of steel was Rs. 1.8 paise per Kg. No cooperative attitude was reflected but the plaintiff vide letter dated 27.6.94 was restart the work or be ready to face the consequences for its non-starting. The plaintiff firm in his letter dated 11.07.94 expressed his helplessness against coercive attitude of defendant. The defendant of his own and unilateral granted number of extensions of time. The plaintiff vide letter dated 18.07.94 and 25.7.94 protested it but was of no avail.
CS No. 3/17/97 M/s Pride Constructions Vs DDA 6/27 14 It is stated that without looking in it to relevant record, the superintending Engineer suo moto and unilateral initiated action clause No. 2 and levied a compensation @ 0.5% amounting to Rs. 18.250/- upon the plaintiff firm. The action of Superintending Engineer was illegal, unlawful, and erroneous because no delay could be attributed to the plaintiff firm. The time was never extended and made as essence of the contract. The plaintiff firm made a statement, which was voidable in nature and, therefore, protest was lodged vide letter dated 27.12.96.
15 It is stated that despite above a notice under clause No. 7 was also served upon the defendant by plaintiff. It was followed by a notice under Section 53(b) of Delhi Development Act, which till date remained unrebutted. The plaintiff firm also claimed @ 24% p.a vide said notice it was specifically stated that notice be treated as Notice given under Interest Act. The defendant as per its habit made no response to the above said notice, therefore, this recovery suit.
16 Plaintiff claim deductions and reductions to the tune of Rs. 16,822.74 in the final bill, that every delay in the execution of work was attributed to defendant and seeks award of claim Rs. 18750/- in his favour, a sum of Rs. 1,83,131/- is claimed as extra cost incurred for procurement of 15.90 Qt1 of steel for fabrication the grills for item No. 11 of the agreement, a sum of Rs. 8476 for removing and refixing of grills as per direction of defendant and additional consumption of cement was caused due to reconstruction and repairing of boundary wall dismentalled by other agency, a sum of Rs. 5,000/- is claimed. Plaintiff further claimed Rs. 2,47,220 as the increased in the wages of labourers which was not reimbursed by the defendant.
CS No. 3/17/97 M/s Pride Constructions Vs DDA 7/27 17 Plaintiff further claim a sum of Rs. 10,000/- withheld on account of Quality Control paragraphs, a sum of Rs. 26,490/- for the theft of grills caused to the site. And finally plaintiff seeks money decree for Rs. 5,00,000/-, declare the action of the Superintending Engineer of levying the compensation as unlawful, illegal and erroneous, future interest and any other further relief.
18 Defendant, DDA file written statement and taken preliminary objection that suit is not maintainable and is liable to be dismissed as there is no cause of action in favour of the plaintiff and against the defendant. The suit is barred by limitation and plaintiff has not given the notice in accordance with the provisions of Section 53B of Delhi Development Act, 1957. It is stated that suit has not been properly valued for the purpose of court fees and jurisdiction and plaintiff has not come with clean hands, suppressed the material fact and failed to comply with the requirements of Order VI Rule 2 of CPC.
19 On merit contents of para No. A of the plaint are denied for want of knowledge. The contents of remaining paras also denied. It is stated that stipulated date of completion was 18.04.94 and not 18.04.93. The work was completed on 15.03.96 the total delay in completion of work was 23 months and not 39 months. It is stated that the work was awarded to the plaintiff through call of tender which was to be completed with in a period of five months and thus it was the responsibility of the plaintiff to arrange for the material stipulated to be utilised in the work. The cement was provided in time and as per the required quality. It is denied that cement issued vide indent no. 052205 CS No. 3/17/97 M/s Pride Constructions Vs DDA 8/27 dated 29.12.93, issued at Mayapuri Store was not confirming to specifications, because part of it was defective and set. No excess cement was used in the work over ad above the variation limit which shows that the cement was of good quality.
20 It is stated that during the inspection by the Vice Chairman, DDA it was decided that grills shall not be fixed over the walls and accordingly this decision was conveyed to the plaintiff well within time when only a few grills were manufactured and brought at the site. It is further submitted that vide letter dated 2/2/94 the plaintiff was instructed to removed those grills which had been fixed in violation of the instructions issued earlier for not fixing the grills.
21 It is stated that it was the responsibility of the plaintiff and not of the defendant to make proper arrangement for watch and ward of the material and work during the execution of the work. As regards the payment of secured advances under Clause 10 B of the agreement, it is submitted that this Clause comes into play during the progress of work for the payment at the rate of 75% of the estimated value of any material which in the opinion of the Engineer incharge non-perishable and are in accordance with contract and which have been brought at site in connection therewith and are adequately stored and protected against damage by whether or other causes.
22 It is further stated that as per additional condition on page 71 of the agreement the plaintiff to work proper co- ordination with other agencies as per directions of the Engineer- in-charge which the plaintiff failed to observe.
CS No. 3/17/97 M/s Pride Constructions Vs DDA 9/27 23 It is stated that only the work of fixing grill was stopped by the defendant and the entire work was never ordered to be stopped. The compound wall which was damaged by the other agency was repaired by that agency and not by the plaintiff. It is stated that action under Clause -2 of the agreement was rightly taken because the execution of the work had been delayed by the plaintiff firm and any delay on the part of the defendant was duly considered.
24 It is stated that plaintiff was granted provisional extension of time under clause 5 of the agreement and was accordingly informed that time was essence of the contract vide letter dated 28.5.1994, 23.6.94, 13.7.94, 4.7.94, 30.8.94 and 27.11.96. The defendant denied all the contents of the plaintiff and of the claims of plaintiff and it is stated that plaintiff is not entitled to any relief as claimed by it. Defendant seeks dismissal of the plaint with cost.
25 Plaintiff filed replication to the written statement filed on behalf of defendant/DDA and denied the all the objections taken in the written statement and reiterated the averment mentioned in the plaint.
26 On the pleading of the parties following preliminary issues were framed by my Ld. Predecessor vide order dated 08.03.1999:-
1. Whether the suit is barred by limitation? OPP
2. Relief CS No. 3/17/97 M/s Pride Constructions Vs DDA 10/27 27 Thereafter again vide order dated 21.3.2003 on the pleadings of the parties following issues were framed:-
1. Whether the suit of the plaintiff is within limitation? OPP
2. Whether the notice under Section 53 B of D.D. Act has not been served by the plaintiff on the defendant, if so, its effects? OPD
3. Whether the plaintiff is guilty of committing breach of contract, if so, its effects? OPP
4. Whether the defendant is guilty of committing breach of contract. If so, its effects? OPD
5. Whether the plaintiff is entitled to the amount, as claimed in plaint? OPP
6. Relief 28 Plaintiff in order to prove its case examined Sh.
Devender Kumar Nijhavan who tendered his evidence by way of affidavit Ex. PA and proved the documents i.e. office copy of the notice under order 12 rule 6 CPC served upon the defendant as Ex. PW-1/1 and the postal receipt as Ex. PW-1/2. He further proved the letters written to the DDA by the plaintiff for test report, issued by DSIDC and the correspondence between the parties as Ex. PW-1/3 to Ex. PW-1/52.
29 In the cross-examination he deposed that he cannot say if he had not filed copy of the partnership deed in this case. The work was to be started in November, 1993 and was to be completed in five months. It took 39 months to complete the work. Provisional extension was granted without levy of penalty. Some extensions were granted with levy of penalty also. The CS No. 3/17/97 M/s Pride Constructions Vs DDA 11/27 final bill was prepared by the department. He received the payment of the final bill. He had also accepted the measurement taken by Engineers of the defendant ( DDA). He had not written any protest on the receipt while accepting the payment for the final bill. Letter dated 17.01.1994 was received by him and is marked as Ex. PW-1/D1.
30 In further cross-examination he deposed that the size of the file as mentioned in para no. 2 of the affidavit should have been 50x50x2 mm thick. Due to clerical mistake, the figure 50 has come three times instead of two times. He admitted that as per agreement entered into between the parties, the size of the file was 50 x50 x2.9 m.m. He had not informed the defendant at the time of submitting the tender that the square pipe of 50 x50 x2.9 m.m. was not available in the market.
31 He admitted that the date of the start of work was 19.11.93 and the period of completion was six months. The work was completed in 2 years and 4 months. He admitted that the letter written by the defendant for stoppage of the work was only in respect of the grill and not the whole work. He voluntarily deposed that some concrete work, coping work, pointing work cannot be carried out without affixation of the grill). He admitted that the work of fixation of the grill was stopped only for three months. He deposed that he has not placed on record the bill to show that there was any increase in the rates of steel.
32 In further cross-examination he admitted that he had received the letters Ex. PW-1/33 and Ex. PW-1/34 whereby he was informed that the work carried out by him was defective. He CS No. 3/17/97 M/s Pride Constructions Vs DDA 12/27 further deposed that this fact was also mentioned in Deduction Item Statement, copy of which is Ex. PW-1/D1. He denied the suggestion that the deduction of Rs. 16,822.74 was legal and justified.
33 In further cross-examination he denied all the suggestions put to him about delay attributed to the plaintiff and levy of compensation of Rs. 18,250/-etc. He admitted the suggestion that no repairs were required to be done under the terms of the contract. He had not lodged any police report against the contractor who had damaged wall raised by him. He denied the suggestion that he is not entitled for additional consumption of cement on repairs or prepare of the boundary wall damaged by the other contractor of the DDA as claimed by him.
34 In further cross-examination he admitted the suggestion that extension of time was granted to him by levy of compensation. He voluntarily stated that some of the extension were on account of the fault/hindrances attributable to the defendants and, therefore, he is entitled to the escalation under clause 10 (c) of the agreement). He claimed escalation for the entire period of delay. Extension of over 400 days was granted by the defendant without levy of compensation and he shall be entitled to escalation at least for the said period even if it is found that the rest of the delay was attributable to him. He has claimed the escalation only in respect of the labour charges.
35 He admitted the suggestion that he has been paid a sum of Rs. 10,000/- withheld for quality control vide cheque no.
CS No. 3/17/97 M/s Pride Constructions Vs DDA 13/27 16976 dated 5.9.97. He admitted the suggestion that he was responsible for safety of the material during the period of continuation of the agreement and execution of the work. He had not lodged any FIR in respect of theft of the grill from the site. He admitted the suggestion that DDA is not liable to make good the loss in respect of claim no. 8 for theft of the grill from the site. He admitted the suggestion that he had provided the CC only on the boundary wall. He admitted that deduction of Rs. 9,000/- was on account of the fact that the item as mentioned in the tender i.e cement concreting upto floor to level was not executed by him as the said work was not there in the contract. He admitted that the deduction of Rs. 9,000/- under claim no. 9 has been rightly made. He denied the suggestion that his claim is false and he is not entitled to recover any amount from the DDA. Vide separate statement of ld. Counsel for the plaintiff, evidence of plaintiff was closed on 30.09.2005.
36 On behalf of defendant, DDA Sh. N.C. Godlaw, Executive Engineer appeared as DW-1 and tendered his evidence by way of affidavit Ex. DW-1/A and rely upon the documents already exhibited by PW-1 in his examination as Ex. PW-1/28, PW- 1/30, PW-1/33, PW-1/35, PW-1/37, PW-1/39 ( filed by the plaintiff) and the other documents Mark A1 to A6 which have been mentioned in the original affidavit as DW1/7, DW1/8, DW1/11, DW1/12, DW1/13 and DW1/14.
37 In the cross-examination he deposed that in the year 1994 he was posted as Assistant Engineer in QC Cell of DDA. He never carried out any inspection during 1994 of this region WD9. He worked as Assistant Engineer in this division WD9 from 2001 CS No. 3/17/97 M/s Pride Constructions Vs DDA 14/27 to 2007. Mr. Bamba was not Executive Engineer during 2001 to 2007. He deposed that Agreement/Work file and other related registers maintained by the Division in this context.
38 He deposed that "Work File" means the file pertaining to the correspondence for the work executed and is maintained during the course of execution of the work. The 'other documents' means hindrance register, cement issue register, material test register, site order book etc. He has not field any documents as the same is not required. He deposed that there were hindrances in the work and the same is matter of record. The said record is available in the Division Office. He admitted that he has not filed the same. He admitted that hindrances are mentioned in the hindrance register. He denied the suggestion that he has not filed the documents which have been perused by him before filing the affidavit. He denied the suggestion that he has not seen Mr. Bamba writing and signing and he has no knowledge regarding the agreement.
39 He further deposed that in the agreement the clause 2 say that the time is the essence of the contract. He cannot say whether the work was stopped or not. It is a matter of record mentioned in the hindrance register whether the work stopped from 2.2.94 to 3.5.94. He admitted that he has not filed the hindrance register as same was not required. He admitted that the suggestion that when the extension to the contract is granted the department prepares the extension of Time Proforma Part-II. He cannot say whether that document is prepared or not. He denied the suggestion that he has not perused the document properly. He does not know what was the actual date of CS No. 3/17/97 M/s Pride Constructions Vs DDA 15/27 completion however that is matter of record. This work was supposed to be completed within 6 months as per the agreement. He denied the suggestion that the said period was of 5 months and not 6 months. He denied the knowledge whether any provisional extension was granted between 2.2.1994 to 3.5.1994. He admitted that the stipulation period for the completion of the work was 18.4.94. He denied the suggestion and actual date of completion was 15.3.96.
40 In further cross-examination he cannot comment whether any action was taken as per clause 3 of the agreement. He cannot say whether the said work was ever rescind and same is matter of record. He cannot say whether any delay on the part of the contractor. He does not know whether any work was got executed at the risk and cost of M/s Pride Constructions. He deposed that the fact with regard to the loses has been conveyed to the contractor while grant of execution of time to the plaintiff by the competent authority.
41 He further deposed that he has no knowledge whether extension of time was recommended by the executive engineer while furnishing the Extension of Time Proforma Part-II. He cannot say whether the DDA has suffered any loss due to the alleged delay. He denied the suggestion that he has not furnished the relevant record. He is not aware whether plaintiff has ever requested for extension of time. He admitted the suggestion that if the work is not completed within the stipulated period the contractor has to submit the revised program. He has no knowledge whether the department has ever modified the construction program. He cannot say what was the reason of CS No. 3/17/97 M/s Pride Constructions Vs DDA 16/27 delay mentioned in Part-II of extension of time proforma. He denied the suggestion that contractor has worked according to the pert chart and the delay has been caused due to stopage of work. He denied the suggestion that the work was stopped during the period from 2.2.94 to 3.5.94. He denied the suggestion that the fixing of grill was the main work, however the same includes stone masonry wall.
42 In further cross-examination he deposed that he cannot say whether any cement was issued during 2.2.94 to 3.5.94 as same is matter of record. He does not know whether the department has issued any notice to the contractor as per clause 13 of the agreement. He does not know whether there is any change in the original specifications drawing, designs etc. He admitted the suggestion that there was not curtailment in the work assigned to the contractor. He admitted that as per clause 12 of the agreement certain substitute items and minus extra items have been executed by the contractor. He is not aware whether any quality control check has been done by the chief technical examiner ( CTE). He denied the suggestion that as per clause 15 the notice has to be issued for the quality control check for inspection and same cannot be done at the site order book. He admitted that he has not filed the site order book.
43 In further cross-examination he deposed that he is not aware whether Superintendent Engineer has taken any action before the completion of the work. Under clause 5 of the agreement the EE can reschedule the construction program. He admitted the suggestion that the EE can grant extension to keep the contract alive. He denied the suggestion that EE cannot CS No. 3/17/97 M/s Pride Constructions Vs DDA 17/27 grant extension or reschedule the program. He denied the suggestion that all the clauses are inoperative after the actual date of completion of the work. He admitted the suggestion that all the clauses of the contract are inoperative when the work is rescinded. He is not aware whether any notice was issued to the contractor as per clause 3. He deposed that contract was stopped between 2.2.94 to 3.5.94 on the request of the contractor to avoid the theft of the grill which is entire responsibility of the contractor.
44 In further cross-examination he admitted the suggestion that there were chances of the theft on the site. The contractor had written to the department and also requested orally for stopage for the work. He does not know whether the work was stopped by the VC or LG. He admitted the suggestion that the work has to be executed as per the program approved by the engineer incharge. The delay attributed by the department is considered while grant of extension of the time by the competent authority. He does not aware whether the rate of steel had increased during that time.
45 He further admitted the suggestion that Ex. DW1/PX is a letter from the department wherein the plaintiff was directed to remove all grills from the site till final decision is taken by the department. He is not aware whether the contractor had removed the said grills or not. He has no knowledge whether at the time of execution of the work certain part has been damaged by the other contractor. He admitted the suggestion that as per the clause 10 C of the agreement the contractor is entitled for the increase of wages and cost of material after producing CS No. 3/17/97 M/s Pride Constructions Vs DDA 18/27 necessary documents. He cannot say whether the work was satisfactorily concluded by the contractor. Same is matter of record. The amount claim under clause 7 has already been released to the contractor. He denied the suggestion that theft was taken place at the site. He deposed that it is a matter of record that the rate of Rs. 1050 per metric tone was reduced to Rs. 783 per metric tonne as per the relevant clause. Vide his separate statement evidence on behalf of DDA was closed on 20.01.2009.
46 I have heard Sh. B.M. Sehgal counsel for the plaintiff and gone through the written submissions filed on behalf of plaintiff. I have also heard Sh. S.G. Asthana proxy counsel for Sh. Sanjay Sharma counsel for the DDA and perused the record.
47 Ld. Counsel for the plaintiff Sh. B.M. Sehgal relied upon the judgment in Hydel Construction Ltd. Vs V.H.P State Electricity Board, AIR 2000 Himachal Padesh 19, Consulting Engineering Services ( India) Ltd,. Vs Department of Agriculture & Co-operation 2002 ( 2) RAJ 561 ( Del.), Hind Construction Contractors Vs State of Maharashtra AIR 1979 SC 720, Maula Bux Vs. Union of India, AIR 1955 SC 928, State of Rajasthan Vs Chandra Mohan Chopra AIR 1971 Rajasthan 229, State of U.P. Vs Chandra Gupta & Co. AIR 1977 ALL 28, Hindustan Petroleum Corporation Ltd. Vs Offshore Infrastructure Ltd, AIR 2016(2) RAJ. 560 (Bom.), Vishwanath Sood Vs UOI, AIR, 1989 SC 952, A.T. Brij Paul Singh and Bros. Vs State of Gujarat AIR 1984 SC 1703, Dwaraka Das Vs State of M.P. 1993 (3) Arb. LR291 ( SC), P.C Sharma Vs DDA 1998 (2) RAJ 336 (D), Mohd Salamtullah Vs Govt. of A.P. AIR 1977 SC 1481, EN Veeka Construction Co. Vs DDA 1999(1) Arb. LR 298.
CS No. 3/17/97 M/s Pride Constructions Vs DDA 19/27 48 Findings on issues is as follow:-
Issue no. 1 The present issue is framed on the plea taken by the defendant that present suit is barred by limitation. In the replication the plea is taken by the plaintiff that it has not been alleged how the suit is time barred. The onus is wrongly upon the plaintiff it must be on defendants. As per record between the parties formal agreement entered for the work of "development of land for Dwarka Project Phase 1, for providing and fixing Grill fencing around master plan green in Sector 20". The time stipulated was five months, however, it continued till 15.3.1996. The payment was finally made on 30.11.1996. The notice under Section 53 B of DDA Act given on 10.2.1997. The substantial cause of action arise on 30.1196 when plaintiff had expressed agitation to the final payment and notice under clause 7 of the Agreement issued on 28.12.1996 and suit filed on 26.05.1997. In my considered opinion suit is within limitation as prescribed by the Limitation Act. Therefore, issue is decided in favour of the plaintiff.
49 Issue no. 2.
As per record plaintiff appeared in witness box and proved notice under Section 53-B of DDA Act on 10.02.1997 wrongly Ex. PW-1/37 (Ex. PW-1/27). In para 8 of the affidavit, it is deposed by the plaintiff that a dispute has been arisen and plaintiff firm had served a notice under Section 53-B of DDA Act which remain un-rebuted by the defendant/DDA, however when documents are proved and exhibited as Ex. PW-1/1 to Ex. PW- 1/52 by the plaintiff the notice under Section 53-B is Ex. PW-1/27 dated 10.01.1997 alongwith postal receipts and UPC. It is CS No. 3/17/97 M/s Pride Constructions Vs DDA 20/27 established on record that prior to filing of the suit on 10.01.1997 a notice under Section 53-B, DDA Act served on defendant/DDA. The present suit, therefore filed on 23.05.1997.
50 On the basis of above observation and discussion the plaintiff has proved that mandatory notice under Section 53-B DDA Act has been served upon DDA, therefore, issues no. 2 is decided in favour of the plaintiff and against the defendant.
51 Issue No. 3,4 & 5Issue no. 3, 4 & 5 are taken together as they are inter-connected, however, the onus of issue no. 3 & 5 is on plaintiff and issue no. 4 is on the defendant.
52 The claim No. 3 of the plaintiff is for Rs. 78,902/- and claim no. 4 is of Rs. 1,71,000/- rest on the conclusion on the above said issues.
53 The plaintiff himself appeared in witness box as PW-1 and the testimony of PW-1 has been discussed hereinabove in detail. The defendant also examined Sh. N.C. Godlaw, Executive Engineer as DW-1 whose testimony is also discussed hereinabove in detail.
54 Ld. Counsel for the plaintiff Sh. B.M. Sehgal in the written argument stated that the claim against the amount claim against claim no. 1 & 2 as since been paid, therefore both claim stands withdrawn. For claim No. 3 of Rs. 78,902/- alongwith as levy of compensation @ 3% of the estimated cost under clause 2 of the agreement is stated to be erroneous. The delay of the execution in work is squarely attributed on the defendants. The final bill Ex. PW-1/10 has been prepared. There is no dispute or CS No. 3/17/97 M/s Pride Constructions Vs DDA 21/27 claimed with regard to the measurements. The dispute is only with regard to levy of compensation withholding the recoveries.
55 I would like to refer to the cross-examination of PW-1 Sh. Devender Kumar Nijhavan. He appeared in witness box and admitted that the letter written by the defendant for stoppage of the work was only in respect of the grill and not the whole work. The work of fixation of the grill was stopped only for three months. He admitted the letter Ex. PW-1/33 & 34 where defendant pointed out and informed the work carried out by the plaintiff firm is defective. He further admitted the Deduction Item statement Ex. PW-1/D1. He admitted that he did not lodged any complaint with the police for the damages of the Wall as alleged by him. He admitted that the extension of work was granted by levy of compensation. The extension was about 400 days.
56 The document Ex. PW-1/33 specify the inspection carried out by the DDA officials on 3.3.1994 and several defects were pointed out and directed to remove by the plaintiff. Similarly another inspection was conducted on 03.03.1994 and defects were noticed and informed to the plaintiff firm. It established that the DDA officials are keeping eye on the progress of the work and time to time pointed out defects to be removed. The letter Ex. PW-1/D1 is the visit of Vice Chairman whereby instructions issued that no grill fencing may be provided. All the inspections and instructions were well within the knowledge of the plaintiff. He admitted that he was responsible for the safety of the material during the execution of the work as per agreement and DDA is not liable to make good for the losses, theft of grills etc at the spot. PW-1 further CS No. 3/17/97 M/s Pride Constructions Vs DDA 22/27 admitted that the final bill was prepared by department and he received the payment of the final bill and he did not protest while receiving the payment of the final bill vide letter dated 17.01.1994, Ex. PW1/D1.
57 In my considered opinion several defects were noticed by defendant's officials during the inspection and indicated to the plaintiff. The visit of Vice Chairman also specify the specific instructions. In my opinion, the levy of compensation as per agreement clause 2 is legal and valid. The plaintiff is not entitled for the claim of Rs. 78,902/- as per claim no. 3.
58 The claim No. 4 as per written arguments is Rs. 1,71,000/- for extra expenditure on the purchase of steel. Ld. Counsel Sh. B.M. Sehgal submitted that there is delay of 1177 days on the part of the defendant which is already clarified in Ex. DW-1/8 and plaintiff's counsel relied on Ex. PW-1/9, the details of expenditure. The fundamental claim is on the basis of purchase of steel for making grill which was stopped. In my considered opinion, after the visit of Vice Chairman vide Ex. PW-1/D1 instructions were given to stop the fixing of grill and plaintiff firm never raised any objection or protest. In my opinion defendant specifically informed about the non-fixing of grill. Ex. DW-1/8 further shows that the item of deduction etc, item and giving the benefit to the plaintiff firm.
59 The defendant relied on Ex. DW-1/7,8, 11, 12 13 &
14. The Ex. DW-1/7 showing the items deducted and benefit given to plaintiff firm to the tune of Rs. 16,352/-. Similarly Ex. DW-1/11 shows the hindrance during the execution of the work CS No. 3/17/97 M/s Pride Constructions Vs DDA 23/27 wherein period has been calculated to the tune of 765 days of delay. The Ex. DW-1/12 shows the extension of time for completion of the work extended and as per clause -2 of the agreement the compensation of Rs. 18,250/- were levied. The document Ex. DW-1/13 is a letter for repair of the damaged portion of the masonry wall. Similarly Ex. DW-1/14 is the letter with regard to laying of C.C. in foundation & plinth etc. 60 In the detailed cross-examination of DW-1 Sh. N.C. Godlaw, Executive Engineer, DW-1, no suggestion or question put to the witness in this regard. Agreement clause 12 also provide certain substitute items and minus extra items in the contract. However, there is admission that the work was stopped from 02.02.1994 to 3.5.1994 as per instruction of Vice Chairman. The plaintiff was also directed to remove the grill as per letter Ex. DW-1/PX. The cross-examination has not established any contradictions to the record proved by the DDA through witness DW-1 Sh. N.C. Godlaw, therefore, in my considered opinion, the plaintiff is not entitled to claim of Rs. 1,17,000/-.
61 The other claim of plaintiff of Rs. 2,66,344/- on account of clause 10 ( C) of the agreement and referred the documents Ex. PW-1/11, Ex. PW-1/19 & 20. The defendant denied the payment as per Section 10 ( C) on the pretext that Superintendent Engineer have been compensation under clause 2 of the agreement. Ex. PW-/11 pertain to the visit of Vice Chairman wherein fixing grill fencing was stopped and request made for fixing of charges and removal of the grill by the DDA from the plaintiff firm. Ex. PW-1/19 is a letter written by the plaintiff firm to the DDA , Executive Engineer wherein several CS No. 3/17/97 M/s Pride Constructions Vs DDA 24/27 letters were referred sent by the DDA and their reply and demand was made for increase or escalate prices. The document Ex. PW-/20 is also a letter to the DDA about the removal of the material from the site, however, DDA is not responsible for the safety of the material at the spot as per agreement. In my considered opinion, plaintiff is not entitled to any claim as claimed under Clause 10 (c).
62 Now coming to the judgments relied by ld. Counsel for the plaintiff. I have gone through the judgments relied by counsel for the plaintiff. In the judgment of Hydel Construction Ltd. ( Supra) mainly aspect of Arbitration & Conciliation Act has been discussed. It deals with the raising of objections, limitation and claim of minimum wages etc. In my opinion, it is distinguishable in the present facts and circumstances of the case. The judgment of Consulting Engineering Service ( India) Ltd ( Supra), this judgment is distinguishable in the present facts and circumstances of the case as defendant never terminated the agreement, however, they had extended it without even levy of penalty and the opportunities given to complete the work for about two years and duly informed all the defects. The fundamental delay caused due to the theft and damages to the boundary wall for which defendant officials have no concern.
63 The other judgment M/s Hind Construction Contractors (Supra) in this judgment it has been held that provision relating time being of essence and Rescission. Several letters proved by defendants for extension of time without even levy the penalty, therefore, this judgment is distinguishable in the present facts and circumstances of the case. In respect of the judgment of Maula Bux ( Supra), in the present case the CS No. 3/17/97 M/s Pride Constructions Vs DDA 25/27 final bill has been accepted which was duly paid and plaintiff never raised any objection to the payment. Nothing has been proved on record that there was a breach of agreement by the defendants rather it is the breach and delay by the plaintiff. The other judgment of Vishwanth Sood ( Supra). This judgment deals with the passing of non-speaking award hence scope of Section 30 of Arbitration Clause. However, the present case does not invoke any provision of Arbitration & Conciliation Act.
64 The judgment of A.T. Brij Paul Singh ( Supra) deals with the claim of damages on the breach of contract, however, present facts are totally distinguishable as there is no case proved on behalf of plaintiff that defendant breach the contract so there is no question of any damages rather all the delay have been caused on behalf of the plaintiff. The another judgment relied by the ld. Counsel for the plaintiff is of Dwarka Das ( Supra) this judgment again deals with the breach of contract. This is also distinguishable because it is not established on record that contract was signed by the defendants, therefore, there is no question of damages to be awarded to the plaintiff.
65 The another judgment is of P.C. Sharma ( Supra). In the present case the plaintiff had accepted the final bill and did not raise any supplementary bill and not any protest was made by plaintiff while accepting the final bill and payment, therefore this judgment is distinguishable in the present facts and circumstances of the case. The other judgment is of Mohd. Salamtullah ( Supra) this judgment basically deals with the assessment of damages and the powers of the appellant court. However, in the present facts and circumstances this court is not CS No. 3/17/97 M/s Pride Constructions Vs DDA 26/27 deciding any appeal. Lastly, the judgment of EN Veeka Construction Co. (Supra) this judgment also deals with the assessment of damages, claim, resolution, profit as per Arbitration & Conciliation Act which is not in question in the present suit, therefore this judgment is also distinguishable in the present facts and circumstances.
66 In view of the above all the judgments relied by the ld. Counsel for the plaintiff are not of help for the plaintiff in the present facts and circumstances of the case.
67 Lastly, plaintiff, claimed Rs. 20,000/- cost of proceedings. I find no substance and merit in this claim as plaintiff himself approached to the court and admitted the final bill and received the payment of final bill without any protest. In my considered opinion plaintiff is guilty of breach of Contract it is not the defendant.
68 In view of the above observation and discussion, issue no. 3 & 5 are decided against the plaintiff and in favour of defendant, issue no. 4 is decided in favour of defendant and against the plaintiff.
69 Relief In view of my finding on issue no. 3 & 5 plaintiff is not entitled for any claim. Suit of the plaintiff is dismissed. No order as to cost. Decree Sheet be prepared accordingly. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 22nd August, 2017 ADJ-02 (West)
Delhi
CS No. 3/17/97 M/s Pride Constructions Vs DDA 27/27
CS No. 3/17/97 M/s Pride Constructions Vs DDA 28/27