Delhi District Court
Suit No.09/08 vs Delhi Development Authority on 24 December, 2010
IN THE COURT OF SH. RAKESH KUMAR :ADJ03(C): DELHI
Suit No.09/08
M/s Bassi Builders,
(A Partnership Firm duly Registered
Under the Partnership Act), through
Sh. Harish Kumar Bassi, Partner,
4 Floor, Uphar Cinema Building,
th
Green Park Extension, New Delhi16. .....Plaintiff.
Versus
1. Delhi Development Authority
Through its Chief Secretary,
Vikas Sadan, New Delhi.
2. Executive Engineer (WD15),
Delhi Development Authority,
Lakkar Mandi, Kirti Nagar,
New Delhi - 70. .....Defendants.
Date of filing of Suit. : 26.07.1997.
Date on which case fixed for order. : 26.11.2010.
Date of Judgment. : 24.12.2010.
Suit for recovery of Rs.18,78,305.10ps. i.e. Rs.15,26,662/
towards principal and Rs.3,51,643/ as interest.
M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.1 of pages 60
J U D G M E N T
1. The instant suit for recovery of Rs.18,78,305.18ps. i.e. Rs.15,26,662/ towards principal and Rs.3,51,643/ as interest has been filed by the aforesaid plaintiff (a registered partnership firm) through Sh. Harish Kumar Bassi, its partner and authorized person, against the aforesaid defendants. Cost of the suit is also demanded by the plaintiff.
2. As per plaint, the defendants invited tenders for construction of 280 Dwelling Units (70 LIG & 210 MIG) four storeyed houses and 210 Scooter garages including internal development in mixed land use pocket of Sector10, Dwarka PhaseI, Sub Head:
Construction of 144 Dwelling Units (36 LIG & 108 MIG) four storeyed houses and 108 Scooter garages including providing bored cast in situ under reamed compaction pile foundation and internal development in mixed land use pocket of Sector 10, Dwarka, GroupI. The plaintiff firm also submitted the tender and the same was accepted by the defendants. The contract for above work was, therefore, awarded to the plaintiff firm and agreement no.6/EE/WE15/DDA/9394 was entered into between the parties. The plaintiff completed the entire work to the satisfaction of the defendants on 10.11.1995. There were delays by the defendants on M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.2 of pages 60 various accounts and, therefore, the time for completing the work was extended without levy of any compensation and the work was deemed to be completed and duly recorded on 10.11.1995 by way of completion certificate given by the defendants. In accordance with the terms of the contract, the maintenance/warranty period of six months which also expired on 09.05.1996. Therefore, all amounts due and payable to the plaintiff firm though should have been paid immediately after completion, but atleast after 09.05.1996 when even the maintenance period had expired.
Despite the completion having been recorded and even the warranty period having lapsed the plaintiff firm was forced to continue its security i.e watch and ward as the defendants did not take over the site/flats and this continued upto February, 1997 when the plaintiff firm was forced to write to the defendants to take over the flats and that the plaintiff firm would be withdrawing its security on expiry of month of February, 1997. Even after the work had been recorded to be complete to the satisfaction of the defendants, they were forced to continue watch and ward from 10.11.1995 upto the end of 28.02.1997 whereby the plaintiff firm had to incur a sum of Rs.8,000/ per month towards watch and ward by engagement of security personal/chowkidars M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.3 of pages 60 etc. which was otherwise the responsibility of the defendants. In accordance with the terms of the contract the defendants were to make payment against the final bill within 6 months of date of completion of the work. As per well known practice adopted by all departments, in this case all running bills were prepared by the defendants themselves and, therefore they were obliged to pay the final bill also within 6 months of the date of completion as per terms of the contract. However, the defendants failed to do so and having no alternative the plaintiff firm prepared and submitted the final bill towards balance payment outstanding for the work done by the plaintiff firm by letter dated 19.02.1997 for a sum of Rs.8,02,186/. Despite the fact the bill was submitted by letter dated 19.02.1997 the same is still outstanding. The clause 10-CC of Agreement provdies as under: Clause 10CC of the Agreement provides as under: CLAUSE 10CC If the prices of materials (not being materials supplied or services rendered at fixed prices by the department in accordance with the clause 10 & 34 hereof) and/or wages of labour required for execution of the work increases, the contractor shall be compensated for such increase as per provisions detailed below and M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.4 of pages 60 the amount of the contract shall accordingly be varied, subject to the condition that such compensation for escalation in prices shall be available only for the work done during the stipulated period of the contract including such period for which the contract is validly extended under the provisions of clause 5 of the contract without any action under clause 2 also subject to the condition that no such compensation shall be payable for a work for which the stipulated period of completion is 6 months or less, such compensation for escalation in the prices of materials and labour, when due, shall be worked out based on the following provisions:
1. The base date for working out such escalation shall be the last date on which tenders were stipulated to be received.
2. The cost of work on which escalation will be payable shall be reckoned as 85% of the cost of work as per the bills, running or final and from this amount the value of materials supplied under clause 10 of this contract, or services rendered at fixed charges as per clause 34 of this contract and proposed to be recovered in the particular bill shall be deducted before the amount of compensation for escalation is worked out, in the case of materials brought to site for which any secured advance is included in the bill the full value of such materials as assessed by M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.5 of pages 60 the EngineerinCharge (and not the reduced amount for which secured advance has been paid) shall be included in the cost of work done for operation of this clause. Similarly, when such materials are incorporated in the work and the secured advance is deducted from the bill, the full assessed value of the materials originally considered for operation of this clause should be deducted from the cost of the work shown in the bill, running or final. Further, the cost of work shall not include any work for which payment is made under clause 12 or 12 (a) at prevailing market rates.
3. Components of materials, labour, P.O.L., etc. shall be determined for every work and incorporated in the conditions of contract attached to the tender papers and the decision of the EngineerinCharge in working out such percentages shall be binding on the contractor.
4. The compensation for escalation for materials, and P.O.L. should be worked out as per the formula given below:
i). Vm = W x X x (M1 - Mio) 100 Mio Vm = Variation in material cost i.e. increase & decrease in the amount in rupees to be paid & recovered.
W = Cost of work done worked out M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.6 of pages 60 as indicated in sub para 2 above.
X = Component of materials expressed as percentage of the total value of work.
M1&MI0= All India whole sale index for all commodities for the period under reckoning as published in the Economic Adviser to Govt. of India, Ministry of Industry and Commerce, for the period under consideration and that valid at the time of receipt of tenders, respectively.
ii).VF = W x Z x (F1 - F1o) 100 F1o VF = Variation in cost of fuel, oil and lubricant and increase or decrease in rupees to be paid and recovered.
W = Value of work done, worked out as indicated in sub para 2 above.
Z = Component of P.O.L. expressed as a percent of total value of work as indicated under the special conditions of contract.
F1&F10 =Average index number of wholesale price for groups (fuel, power, light & lubricants) and published weekly by the Economic Adviser to Govt. of India, Ministry of Industry for the M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.7 of pages 60 period under reckoning, that valid at the time of receipt of tenders, respectively.
5. The following principles shall be followed while working out the indices mentioned in sub para 4 above.
(a). The compensation for escalation shall be worked out as quarterly intervals and shall be with respect to the cost of the work done during the three calender months of the said quarter. The first such payment shall be made at the end of three months after the months (excluding) in which the tender was accepted and thereafter at three months, interval. At the time of completion of the work, the last period for payment might become less than three months, depending on the actual date for completion.
(b). The index (MI/FI etc.) relevant to any quarter for which such compensation is paid shall be the arithmetical average of the indices relevant to the three calender months. If the period upto date of completion after the quarter covered by the last such installment of payment, is less than three months the index MI and FI shall be average of the indices for the months falling within that period.
(c). The base index, MIo, FIo, etc. shall be the one relating to the month in which the M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.8 of pages 60 tender was stipulated to be received.
6. The compensation for escalation for labour shall be worked out as per the formula given below:
i). VL = W x Y x (L1 - LIo) 100 LIo VL = Variation in labour cost i.e. increase or decrease in the amount in rupees to be paid or recovered.
W = Value of work done, worked out as indicated in sub para above.
Y = Component of labour expressed as percent of the total value of work.
LIo = Minimum daily wages in rupees of an unskilled adult male mazdoor, as fixed under any law, statutory rule or order as on the last date on which tenders for the work were to be received.
L1 = Minimum wages in rupees of an unskilled adult male majdoor, as fixed under any law, statutory rule or order as applicable on the last day of the quarter previous to the one during which the escalation is being paid.
7. The following principles will be followed while working out the compensation as per sub para 6 above: M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.9 of pages 60
(a). The minimum wage of an unskilled male mazdoor mentioned in sub para 6 above shall be the higher of the following two figures: namely, those notified by Government of India. Ministry of labour and those notified by the local administration, both relevant to the place on work and the period of reckoning.
(b). The escalation for labour also shall be paid at the same quarterly intervals when escalation due to increase in cost of materials and/or P.O.L. is paid under this clause. If such revision of minimum wages takes place during any such quarterly intervals, the escalation compensation shall be payable for work done in all quarters subsequent to the quarter in which the revision of minimum wages takes place.
(c). Irrespective of variations in minimum wages of any category of labour, for the purpose of this clause, the variation in the rates for an unskilled adult male mazdoor alone shall from the basis for working out the escalation compensation payable on the labour component.
8. In the event the price of materials and/ or wages of labour required for execution of the work decrease/s, there shall be downward adjustment of the cost of work so that such price of materials and/or wages of labour shall be deductible from the cost of work M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.10 of pages 60 under this contract and in this regard the formula herein stated under this clause 19 (cc) shall mutatis mutandis apply, provided that:
(i). no such adjustment for the decrease in the price of materials and/or wages of labour aforementioned would be made in case of contracts in which the stipulated period of completion of the work is six months or less.
(ii). the EngineerinCharge shall otherwise be entitled to lay down the principles on which the provision of this sub clause shall be implemented from time to time and the decision of the Engineerincharge in this behalf shall be final and binding.
Provided always that the provision of the proceeding clause shall not be applicable for contracts where provisions of this clause are applicable but in cases where provisions of this clause are not applicable, the provisions of clause 10C will become applicable.
9. The component of material, labour and P.O.L. as indices in para 3 of sub clause 10 CC have been predetermined as below:
a). Material Seventy Five Percent 75%
b). Labour Twenty Five Percent 25%
c). P.O.L. Nil x Total Hundred 100% M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.11 of pages 60 Therefore, in accordance with the aforesaid clause, the defendants became liable to pay the balance increased cost of labour and material as per schedule set out in the clause which came to Rs.3,44,476/. The plaintiff firm vide aforesaid letter dated 19.02.1997 sent details of the said sum payable under clause 10 CC of the Contract requesting the defendants to pay the said amount to the plaintiff firm which is in accordance with the terms and conditions of the contract. However, despite the demand is made in the aforesaid letter, the amount of Rs.3,44,476/ is still outstanding from defendants to the plaintiff. During the course of the work a sum of Rs.20,000/ was detained and unlawfully withheld by the defendants from Running Account Bills towards the alleged Quality Control paras. The partners of the plaintiff firms were called to attend the office of the defendants on various occasions and even the Quality Control Department closed the file in May, 1997 finding the quality of work done by the plaintiff firm to be proper and therefore, withheld amount was to be forthwith released to the plaintiff firm. Despite the same, the said sum of of Rs.20,000/ is still outstanding from the defendants to the plaintiff firm. Further, though the work has been completed as far as back on 10.11.1995 and the quality control department has also closed M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.12 of pages 60 the file, but without any rhyme or reason the defendants have failed to release the balance security of Rs.60,000/ lying with them by way of Fixed Deposit Receipts which they are liable to pay to the plaintiff firm. There is no obligation under the contract on the part of the plaintiff firm to keep any security or watch and ward at the site after the work is completed which in the present case was completed on 10.11.1995 as per completion certificate recorded by the defendants. In the present case the plaintiff firm was forced to engage watch and ward staff/chowkidars from 10.11.1995 upto 28.02.1997. When having no alternative the plaintiff wrote to the defendants that they are withdrawing their watch and ward after 28.02.1997, thereafter only the defendants engaged their own security at the site. In the process the plaintiff firm had to incur a sum of Rs.8,000/ per month towards the said watch and ward which was not its obligation and for defendants to safeguard the site. Now defendant are liable to pay the aforesaid sum which in all comes to Rs. Three Lakhs to the plaintiff firm incurred on the said account. Except the sum of Rs. Three Lakhs towards watch and ward, the remaining amount became due and payable by the defendants to the plaintiff firm immediately on completion of work i.e. 10.11.1995. However, defendants failed to M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.13 of pages 60 do so and heavy amounts of the plaintiff firm remained outstanding and withheld by defendants. The defendants are, therefore, also liable to pay interest on the said amount from the date the amount became due i.e. 10.11.1995 upto the actual date of payment which upto the date of filing of the present suit comes to Rs.3,51,643/. Therefore, the defendants are liable to pay the following amounts to the plaintiff firm: Sl. No. Particulars Amount (Rs.)
(i). Towards final bill. Rs.8,02,186/
(ii). Towards Clause 10CC. Rs.3,44,476/
(iii). Towards amount illegally Rs. 20,000/ withheld by defendants.
(iv). Towards balance security Rs. 60,000/ deposit.
(v). Towards watch & ward. Rs.3,00,000/
TOTAL Rs.15,26,662/
Therefore, defendants are liable to pay to the plaintiff firm the aforesaid sum of Rs.15,26,662/ and interest on the sum of Rs.12,66,000/ which till the date of filing of the suit comes to Rs.3,51,643/. Therefore, in all upto the date of filing of the suit the defendants are liable to pay a sum of Rs.18,78,305.10ps. The defendants are further liable to pay pendentelite and future M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.14 of pages 60 interest @ 24% per annum on the suit amount upto the actual date of payment. The plaintiff served notice on the defendants under Section 53 (B) of the Delhi Development Act, 1957 dated 26.03.1997 through its counsel calling upon the defendants to pay the aforesaid amount and interest but despite service of the said notice the amount and interest are still outstanding from defendants to the plaintiff firm. The cause of action accrued in favour of plaintiff firm and against the defendants when the agreement no.6/EE/WD15/ DDA/9394 was entered into between the parties. The cause of action further accrued when the plaintiff firm completed the entire work and completion certificate was recorded by the defendants on 10.11.1995 and despite completion the due and payable amounts of the plaintiff firm were not released and the defendants did not even prepare the final bill. The cause of action further accrued when 6 months maintenance period also lapsed on 09.05.1996 but still the payments of the plaintiff firm were not made by the defendants. It further accrued when despite the completion being recorded on 10.11.1995, the defendants did not take over the site and plaintiff firm was forced to engage and retain watch and ward/security staff at the site which after completion was the obligation of the defendants, M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.15 of pages 60 suffering loss of Rs.8,000/ per month. The cause of action further accrued when the plaintiff firm sent letter dated 19.02.1997 enclosing the final bill therein and demanding other due and payable amounts but despite the receipt of the said letter the amounts are still outstanding. The cause of action further accrued when the plaintiff firm served notice dated 26.03.1997 under Section 53(B) of the Delhi Development Act, 1957 calling upon the defendants to pay the amounts due and payable and interest to the plaintiff firm but to no effect and the amounts and the interest are still outstanding. The cause of action is still continuing. This court has jurisdiction to try and entertain the present suit. The suit has been properly valued for the purpose of court fee and jurisdiction.
3. Defendant contested the suit by filing its reply in which it is denied that Sh. Harish Kumar Bassi is the partner of the plaintiff firm and is duly authorized to file the present suit, sign pleadings and to take other steps in the case. It is admitted that the plaintiff physically completed the work on 10.11.1995 but there were various defects, shortcomings in the work for which the completion was recorded conditionally subject to the said works being completed by the plaintiff and the said certificate M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.16 of pages 60 enumerated the following works to be done:
(i).Final coat of cement paints/white washing and painting of doors and windows at the time of allotment.
(ii).Final griding of floors.
(iii).Refixing of removed China Wares and brass fittings at the time of allotment.
(iv).Fixing of glass panes at the time of allotment.
(v).Easing of doors and windows at the time of allotment.
(vi).To attend any defects at any stage such as repair of plaster, grinding of floors and painting of doors & windows, working of sanitary installations and any other defects found out by competent authority till allotments.
(vii).Final painting of C.I., S.C.I. And rain water pipes.
(viii).To make Security arrangements for sanitary wares and brass fittings till the same are refixed, which will be in joint custody.
(ix).Testing of water line.
(x).Drawal of supplementary agreement.
There was no delay on the part of the defendant. On 31.05.1996, the Superintending Engineer Civil Circle17 inspected the site and found that the plaintiff had not completed the works M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.17 of pages 60 which had been enumerated in the completion certificate and also which had been communicated to him orally during site inspection. The Superintending Engineer, DDA on 04.06.1996 called upon the plaintiff to carry out those works which were intimated to him at the time of filing of the completion certificate and also to enter into a supplementary agreement for the same. The plaintiff vide letter dated 09.02.1996 intimated the defendant that he had completed the work, however, when the site was inspected it was found that the plaintiff had not attended various defects pointed in the completion certificate and accordingly it was intimated to the plaintiff vide letter dated 27.02.1996 for completion of the houses and to hand over the vacant possession of the same to the defendant. The contention of the plaintiff that all amounts were due and payable to the plaintiff firm after 09.05.1996 is wrong and denied. On 19.02.1997, the defendant received a notice from the plaintiff that they had completed the work on 10.11.1995 and also intimated the completion of the expiry of maintenance period on 09.05.1996 in terms of the contract. In response to the said letter dated 19.02.1996, the defendant vide letter dated 07.03.1997 called upon the plaintiff that the works had not been completed by him as laid down in the M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.18 of pages 60 completion certificate. The provisional completion certificate was duly given by the representative and in the absence of the completion of houses in all respect the plaintiff had to keep watch and ward and would be responsible for prolongation of the contract on account of their own lapses and also be responsible for all the losses and damages etc. The plaintiff however instead of completing the works left the same incomplete, by telegram dated 11.03.1997 stated that the watch and ward had been removed by him and it was the liability of the department to keep the same. The defendant on 11.03.1997 telegraphically informed the plaintiff as under:
''Attend defects, repairs and handover houses to department.
Removal of watch and ward is on your risk and responsibility''.
The plaintiff instead of coming to site to remove defects, repairs and hand over the houses denied the factual position and chose to reiterate that the work have been completed on 10.11.1995 and the watch and ward had been removed by him and the same is the responsibility of the defendant. The defendant again vide telegram called upon the plaintiff as under:
''Your action is arbitrary attend M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.19 of pages 60 WD15 to avoid controversy.
Removal of watch and ward is at your risk and responsibility''.
The plaintiff on 20.03.1997 in response of telegram dated 07.03.1997 denied the contentions of the defendant. The letter of the plaintiff was replied by letter dated 31.03.1997. Again vide letter dated 21.03.1997 the defendant informed the plaintiff that he was not coming forward to remove the defects, repairs etc. as pointed out in the completion certificate and called upon the plaintiff for joining inspection for physical verification of the fact. The plaintiff however, refused to have a joint inspection also and instead sent a legal notice. On 08.05.1997, the plaintiff came to the office of the defendant for discussion and agreed to complete the balance works as mentioned in the completion certificate. The plaintiff agreed that he would complete the balance work in four blocks per month and the same shall be taken over by the defendant simultaneously. The plaintiff assured that the entire work will be completed within five months. Inspite of the said assurance given by the plaintiff the plaintiff failed in his commitment. As per clause 9 of the agreement the plaintiff was to submit all bills but at no stage plaintiff prepared the bills at their M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.20 of pages 60 own. On account of failure on the part of the plaintiff the defendant prepared the bills and got accepted from the plaintiff. In accordance with the terms of the contract the defendants were to make payment against the final bills within six months of the date of completion of the work. The plaintiff however failed to fulfill various conditions laid down in the completion certificate i.e. he failed to rectify the defects, complete the incomplete items. The plaintiff was given various notices to complete the said works. The 18th running account bill/prefinal bill was paid to the plaintiff on 17.01.1996. In fact after 17.01.1996 no work was done by the plaintiff as per the conditions laid down in the completion certificate after 10.11.1995. This fact was brought to the notice of the plaintiff vide letter dated 21.03.1997. The claim of Rs.8,02,186/ as claimed by the plaintiff is wrong and denied. No work was done beyond the actual date of completion i.e. 10.11.1995. Whereas the plaintiff claimed the said amount by showing that the work was completed. The work executed by the plaintiff was substandard and various discrepancies existed which can be categorized into three parts:
(a). The work was inspected by Quality Control Cell of DDA and it was found M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.21 of pages 60 that the plaintiff had done some items of the work as substandard and such items had to be paid on reduced rates as per Clause 25B of the agreement duly approved by the Superintending Engineer. The amount involved in the substandard work is Rs.2,17,774.66ps.
(b). There are also some items which has not been executed but shown as executed by the plaintiff i.e. item no.31.3(d), 11.12() (b), 11.17 (a), 17.1 for an amount of Rs.22,586.98ps.
(c). There are also some items in which quantity has been shown in excess whereas their actual execution is on the lesser side. Item no.3.13, 11.16, 13.1 for an amount of Rs.2,714.10ps.
Under Clause 10CC of the agreement, the plaintiff has already been paid Rs.2,92,523.42ps. and that the total amount to be payable under the said clause works out to be Rs.3,47,211.19ps., therefore, an amount of Rs.54,687.77ps. is payable to the plaintiff under Clause 10CC. It is denied that an amount of Rs.3,42,476/ is outstanding under Clause 10CC.
Withholding of an amount of Rs.20,000/ is not denied, however, it is submitted that the said amount has been withheld on account of the works left out incomplete by the plaintiff and shall be released M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.22 of pages 60 only after completion of the same. It is admitted that an amount of Rs.60,000/ has been retained by way of security deposit and the same would be released to the plaintiff after the completion of the said works. On 10.11.1995 the provisional completion certificate was recorded subject to carrying out certain defective works. However, plaintiff refused to complete the said work and in fact removed their security. It is vehemently denied that the plaintiff firm had kept security for engaging Chowkidar, Supervisors etc. or that the plaintiff firm kept watch and ward, Chowkidars and that the plaintiff firm had incurred a sum of Rs.8,000/ per month towards the said watch and ward charges. It is also denied that the defendants are liable to pay Rs. Three Lakhs to the plaintiff firm on account of such charges. It is also denied that the plaintiffs are entitled to the sum claimed in the suit or that the defendants are liable to pay interest on the amounts claimed.
4. Plaintiff filed replication to the Written Statement of defendants thereby reaffirming the allegation contained in the plaint and denying those of the Written Statement. It is specifically denied that there was any defects or shortcomings in the work done by the plaintiff. There is no question of completion being allegedly conditional or provisional. It is denied that there M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.23 of pages 60 were no delays on the part of the defendant. The plaintiff is not aware of any alleged inspection carried out by the defendant or its Engineer. It is denied that the defendant could call upon the plaintiff to carry out any alleged left over work. Nothing as is being set out is enumerated in the completion certificate. There is no question of any alleged supplementary agreement. All this submissions of the defendant being false is also apparent from the fact that Rs.2,40,000/ i.e. 80% of the total security deposit was also released by the defendant to the plaintiff in 1996. No such letter dated 27.02.1996 was received by the plaintiff. It is denied that watch and ward had to be kept by plaintiff due to non completion of house or that the plaintiff in any way could be held responsible for prolongation of the contract or that there were any lapse on the part of the plaintiff. It is also denied that the plaintiff was responsible for losses and damages. The extension of the time was also approved by the Superintending Engineer vide a letter dated 27.09.1996 which in itself shows the falsity of the defendant's claim. The defendant's letter dated 07.03.1996 was duly replied by the plaintiff vide a letter dated 20.03.1996 denying all baseless and frivolous allegations of the defendant. The true position is that the defendants were never willing to take over the M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.24 of pages 60 flats due to their own reasons. All fittings etc. of the flats were also taken over by the defendant on 08.08.1996. It is specifically denied that the plaintiff failed to fulfill any conditions of the agreement. The defendants were to prepare the final bill and pay the same to the plaintiff. However, since they failed to do so and having no alternative, the plaintiff prepared and submitted the final bill towards balance outstanding for the work done by the plaintiff with letter dated 19.02.1997 for a sum of Rs.8,02,186/ which also defendants have not paid and amount is still outstanding. It is denied that the work executed by the plaintiff was sub standard or there were any alleged discrepancies. There is no question of any amount of Rs.2,17,774.66ps. to be allegedly recoverable on alleged sub standard work. All fittings were affixed by the plaintiff to the flats but were lateron removed by the defendant to avoid any theft. Therefore, it is denied that any part of work was not executed by the plaintiff. It is also denied that any excess quantity has been shown by the plaintiff more than the actual execution. No excess quantity has been claimed as the quantities are same as per the 18th running account bills paid by the defendant to the plaintiff. As per clause 10CC the plaintiff has been paid a sum of Rs.3,36,640/ and a balance amount of M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.25 of pages 60 Rs.3,47,956/ is due from the defendant to the plaintiff towards payment under clause 10CC. It is thus denied that the amount payable is Rs.54,687.77ps. To the contrary the amount payable works out to Rs.3,47,956/.
5. From the pleadings of the parties following issues were framed vide order dated 23.11.1998:
(i).Whether the plaintiff is a registered partnership firm and the suit has been filed by a registered partner? If not, to what effect?
(ii).Whether the plaintiff is entitled to the escalation in prices under clause 10CC of the agreement? If so, to what extent?
(iii).Whether the defendant has illegally withheld a sum of Rs.20,000/? If so, to what effect?
(iv).Whether any amount is due to the plaintiff under the final bill? If so, to what extent?
(v).Whether the defendant was justified in deducting certain amounts, as mentioned in paragraph 6 of the written statement from the final bill of the plaintiff? If so, to what extent?
(vi).Whether the plaintiff had completed the work to M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.26 of pages 60 the satisfaction of the defendant? If so, to what effect?
(vii).Whether there were any defects in the work? If so, to what extent?
(viii).If issue no.7 is proved in the affirmative, whether the plaintiff has removed such defects? If not, to what effect?
(ix).Whether the plaintiff is entitled to the security lying by way of fixed deposit receipt? If so, to what effect?
(x).Whether the plaintiff is entitled to a sum of Rs.3,00,000/ or any other amount by way of the amount incurred on watch and ward staff for the period 10.11.1995 to 28.02.1997?
(xi).To what amount, if any, is the plaintiff entitled?
(xii).Whether the plaintiff is entitled to interest? If so, at what rate and for what amount?
(xiii).Relief.
6. In support of its case plaintiff examined two witnesses namely Sh. Harish Bassi and Sh. Umesh Kumar (Executive Engineer) as PW1 and PW2 respectively and then closed its evidence. On the M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.27 of pages 60 other hand DW1 Sh. V.K. Aggarwal (Executive Engineer) appeared in the witness box from the side of defendant and thereafter the evidence of defendant was also closed.
7. In his examinationinchief tendered by way of affidavit Ex.PX, PW1 Sh. Harish Bassi reiterated the contents of plaint and exhibited the following documents: Ex.P1 : Certified copy of Form A. Ex.P2 : Certified copy of Form B. Ex.P3 : Letter dated 08.02.1996 thereby intimating that the plaintiff has completed the work on 10.11.1995.
Ex.P4 : Copy of defendant's letter dated
23.09.1996. (this documents was
allowed to be taken on record vide
order dated 23.05.2007)
Ex.P5 : Copy of defendant's letter dated
27.09.1996. (this documents was
allowed to be taken on record vide
order dated 23.05.2007)
Ex.P6 : Copy of letter dated 08.08.1996
whereby brass items etc. were
delivered by petitioner to the
defendant. (this documents was
allowed to be taken on record vide
order dated 23.05.2007)
Ex.P7 : Letter dated 27.02.1996 written by the
defendant to the plaintiff, whereby
M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.28 of pages 60
Executive Engineer WD15 made his
observations by visiting the site.
Ex.P8 : Copy of letter dated 04.06.1996
written by Superintending Engineer/
CC17 to Executive Engineer WD15.
Ex.P9 : Letter dated 19.02.1997 written by the
plaintiff to the Executive Engineer
WD15.
Ex.P10 : Telegram of plaintiff regarding
withdrawal of watch and ward.
Ex.P11 : Details of the sum payable under
clause 10CC of the Contract.
Ex.P12 : Notice dated 26.03.1997 u/s 53 B of
Delhi Development Act, 1957 issued
by the plaintiff to the defendant.
Ex.P13 & 14 : Postal Receipts.
Ex.P15 & 16 : Telegrams sent by the defendant to
the plaintiff
Ex.P17 : Plaintiff's letter dated 13.03.1997
written to the Executive Engineer
WD15.
Ex.P18 : Plaintiff's Telegram to the defendant.
Ex.P19 : Receipt dated 20.03.1997.
Ex.P20 : Receipt dated 16.03.1997.
Ex.P21 : Plaintiff's notice to produce to the
defendant.
Ex.P22 : Letter dated 20.03.1997 issued by the
plaintiff to the defendant.
M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.29 of pages 60
Ex.P23 : Letter dated 21.03.1997 issued by
defendant to the plaintiff.
Ex.P24 : Letter dated 09.05.1997 issued by the
plaintiff to the defendant.
Ex.P25 : Letter dated 07.03.1997 issued by the
defendant to the plaintiff.
Ex.P26 : Envelop addressed to the plaintiff.
During cross examination he conceded that in his affidavit the documents Ex.P4, 5 & 6 were mentioned but the same are not on record. He also conceded that these documents have been mentioned in the affidavit by mistake only. He admitted the agreement with DDA. He claimed that the work was completed by the plaintiff on 10.11.1995 and the defendant had even issued a certificate to him regarding the completion of work. He certified that no completion certificate was separately issued but the completion was recorded in the measurement book of DDA. He claimed that whatever conditions were stated in the completion certificate, those were duly fulfilled by him. He claimed of having a certificate with him regarding handing over of the sanitary fittings and brass fittings. He stated that he has no certificate regarding finishing etc. which was mentioned in the completion certificate as pending. The payments regarding this M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.30 of pages 60 work claimed by him through his final bill in as much as he had already done the said work. He expressed his ignorance about the letter dated 04.06.1996, written by Superintending Engineer to the Executive Engineer. He had not sent any letter to the DDA specifically mentioning that he has completed the work of whitewashing etc. as mentioned in the completion certificate. He admitted that he has not filed on record any supporting voucher to prove expenditure incurred on watch and ward. He could not confirm about the receipt of telegrams from DDA dated 11.03.1997 & 15.03.1997. The final bill submitted by him is Ex.P11. The letter Ex.D3 was also written by him to DDA. He conceded that during the execution of the work he had not sent any letter or notice to DDA claiming interest for delayed payment.
PW2 Sh. Umesh Kumar (Executive Engineer), who is a summoned witness, brought the true copies of 18 running bills, which are Ex.PW2/1 (colly.).
During cross examination he conceded that no notice was issued with respect to the deduction made against item no.150 to 164, as mentioned in Ex.PW2/1. He neither could tell as to if the payment was made for SCI Collars Work nor could ascertain even from the record, if any payment was made or any M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.31 of pages 60 work was done regarding SCI Collars Work. He stated that the payment in 18 running bills i.e Ex.PW2/1 was on the basis of provisional rates mentioned therein.
8. DW1 Sh. V.K. Aggarwal, the sole witness produced on behalf of defendant has too supported the case of the defendant by reiterating the contents of written statement and also exhibited the following documents in his examinationinchief tendered by way of affidavit: Ex.DW1/1 : Original Agreement bearing no.6/EE/ WD15/DDA/9394.
Ex.DW1/2 : Copy of completion certificate Ex.DW1/3 : Copy of letter dated 04.06.1996 written by Superintending Engineer/ CC17 to Executive Engineer WD15.
Ex.DW1/4 : Copy of letter dated 27.02.1996 written by Executive Engineer WD15 to the plaintiff.
Ex.DW1/5 : Copy of letter dated 07.03.1997 written by Executive Engineer WD15 to the plaintiff.
Ex.DW1/6 : Copy of telegram dated 11.03.1997.
Ex.DW1/7 : Copy of receipt.
Ex.DW1/8 : Copy of letter dated 21.03.1997
written by Executive Engineer WD15
to the plaintiff.
M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.32 of pages 60
Ex.DW1/9 : Copy of letter dated 09.05.1997
written by plaintiff to the Executive
Engineer WD15.
Ex.DW1/10 : Running Account Bill.
During cross examination he claimed that the main work which is the subject matter of this suit was not executed by the plaintiff during his tenure i.e. from November, 1998 till 10.01.2001 when he was posted in ward 115. The balance part of the main work which remained to be executed was performed in his tenure by M/s Annu Builders. He stated that the affirmation which he has made in the affidavit by way of evidence dated 06.11.2000 is not made regarding main work on his personal knowledge. He conceded that there is no clause in the agreement Ex.DW1/1 requiring parties to execute a supplementary agreement. He claimed that the plaintiff signed the MB no.17 on page 97 Ex.DW1/2. The DDA needs the final finishing i.e. the final coat of paint, floor polishing etc. at the time the work is completed. The supplementary agreement was not drafted because the plaintiff did not turn up to execute the supplementary agreement. The letters dated 21.03.1997 and 31.03.1997 written by DDA to plaintiff also do not mention with regard to plaintiff being called M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.33 of pages 60 upon to come and sign the supplementary agreement. The supplementary agreement was drafted and kept in the office but its copy is not on record. He admitted that the subject matter of the supplementary agreement relating to final coat of whitewash, final grinding of floor, cleaning of glazed tiles, floors, skirting etc. and other items set out in the completion certificate. The completion of work certificate was issued on 10.11.1995 but it was subject to a number of points which are given in the completion certificate on pages 96 & 97 in Ex.D2. He admitted that as per record there is no document that Ex.DW1/3 was communicated to the plaintiff. He claimed that they had conveyed to the plaintiff that the remaining work of the main work was being done by Annu Builders but there is no document to prove this factum on the court record. He conceded that it is not pleaded in the written statement that the remaining work of the main was being got done by the Annu Builders. He clarified that the remaining work was got done after filing of written statement. He admitted that no amended application was moved in this respect nor any counter claim was raised thereby pleading that remaining work of the main work was got done through Annu Builders. No report as was directed form the Assist. Engineer vide their letter Ex.DW1/4 M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.34 of pages 60 has been filed on record. Regarding balance work referred in Ex.DW1/4 no time frame was given for completion of work. Ex.DW1/4 was not with regard to the clause 14 of Ex.DW1/1. Between the period of Ex.DW1/4 and Ex.DW1/5, no balance work was got done by the defendants from any third party. They were waiting for the plaintiff to complete the work during the said period on the basis of the promises made by the plaintiff. They got the balance work done from Annu Builders during 1999. He stated that M.B. Books are retained by the DDA. In case agency does not submit their bills, under the provisions of the agreement DDA prepares the running account bill and the final bill based upon the M.B. Book. He denied that it is an estblihsed practice in DDA that running accounts bill and final bills are prepared by DDA. In this case running accounts were prepared by DDA. The final bill in the present case was not prepared by DDA as the items of agreement work were not completed by the plaintiff. The defendant has not made any claims towards risks and costs. He has not examined the final bill as he was not posted there at the relevant time. He had not examined the same even after he took over as Executive Engineer. He clarified that he did not do so because the agency was not working. He could not tell as to M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.35 of pages 60 whether the bill submitted by the plaintiff Ex.P11 is towards part rates for the work already executed before 10.11.1995, the date of completion for claiming the balance rates. He also could not confirm as to whether upto 7th running account bill, a sum of Rs.3,36,640/ was paid to plaintiff under clause 10 (CC). He could not confirm whether any payment was made to plaintiff under clause 10 (CC) for work done after gross value of Rs.2,93,11,948/. He confirmed that a sum of Rs.60,000/ as a security of the plaintiff is still lying with DDA. He denied the suggestion that the DDA wanted the plaintiff to handover the flats to allottees and at the time of handing over possession carry out the final coat of whitewashing, flooring polishing etc. and did not want to take over liability of watch and ward. He claimed that DDA wanted to complete the work as early as possible. Since it was the onus of the agency to complete the work, so no watch and ward is required to be kept. He also claimed that the DDA posted their personal some time in 1997 when the plaintiff left the site without completing their liability to watch and ward. He denied the suggestion that the DDA is liable to pay a sum of Rs.8,02,186/ as balance payment for part rates as per Ex.P11 for work done prior to 10.11.1995. He admitted that a sum of Rs.20,000/ of the M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.36 of pages 60 plaintiff is lying withheld with DDA on account of work left out in compete by the plaintiff.
9. I have carefully heard the rival submissions of Ld. counsels for the parties. I have also throughly perused the entire material placed in the file.
10. My issue wise findings are as under:
11. ISSUE No.1: Whether the plaintiff is a registered partnership firm and the suit has been filed by a registered partner? If not, to what effect?
As per para 1 of the plaint, the plaintiff firm is a registered partnership firm having its office at the address mentioned in the plaint and Sh. Harish Kumar Bassi, Partner of the plaintiff firm, is duly authorized to file the present suit, sign pleadings and take all necessary steps for proper conduct of the case.
In the corresponding para of the written statement, the defendant has denied that the plaintiff is a partnership firm and Sh. Harish Kumar Bassi is its partner and duly authorized to file the present suit, sign pleadings and to take other steps in the case.
In his examinationinchief tendered by way of affidavit PW1 M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.37 of pages 60 Sh. Harish Kumar Bassi, has testified that he is the partner of plaintiff firm which is a registered partnership firm having its office at 4th Floor, Uphar Cinema Building, Green Park Extension, New Delhi. He also testified that he is duly authorized to file the present suit, sign pleadings, engage advocates and take all such steps for the proper conduct of the case. He has proved the certified copy of Form 'A' and Form 'B' as Ex.P1 & Ex.P2. On the contrary the defendant has led no evidence to rebut the evidence brought on record by the plaintiff. Hence the issue is liable to be decided in favour of plaintiff and against the defendant and the same stands decided accordingly.
12. ISSUE No.2: Whether the plaintiff is entitled to the escalation in prices under clause 10CC of the agreement? If so, to what extent?
As per the claim of the plaintiff, in accordance with the clause 10 CC of the Agreement the defendants became liable to pay the amount of Rs.3,44,476/ towards the balance increased cost of labour and material as per schedule set out in the clause. The plaintiff firm vide its letter dated 19.02.1997 sent the details of the said sum payable under the aforesaid clause of the Contract, requesting the defendants to pay the said amount to the plaintiff M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.38 of pages 60 firm but despite of the demand raised, the amount of Rs.3,44,476/ is still outstanding from defendants to the plaintiff.
While denying the aforesaid claim of plaintiff, the defendant took the plea that the plaintiff had already been paid Rs.2,92,523.42ps. out of the total amount payable under the said clause to be Rs.3,47,211.19ps. and therefore only an amount of Rs.54,687.77ps. is payable to the plaintiff.
In his examinationinchief, PW1 has confirmed that the plaintiff firm vide the letter dated 19.02.1997 Ex.P9 sent details of the sum of Rs.3,44,476/ payable under clause 10 CC of the Contract and requested the defendants to release the payment. He also proved the calculations made in that regard which is Ex.P11 but no payment has been released by the defendants on that score and therefore the plaintiff is entitled for the recovery of the said amount.
The relevant portion of Clause 10 CC of Agreement Ex.DW1/1 is reproduced as under: If the prices of materials (not being materials supplied or services rendered at fixed prices by the department in accordance with the clause 10 & 34 hereof) and/or wages of labour required M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.39 of pages 60 for execution of the work increases, the contractor shall be compensated for such increase as per provisions detailed below and the amount of the contract shall accordingly be varied, subject to the condition that such compensation for escalation in prices shall be available only for the work done during the stipulated period of the contract including such period for which the contract is validly extended under the provisions of clause 5 of the contract without any action under clause 2 also subject to the condition that no such compensation shall be payable for a work for which the stipulated period of completion is 6 months or less, such compensation for escalation in the prices of materials and labour ........... The perusal of the records reveals that the work was awarded to the plaintiff vide letter dated 03.07.1993 and the date of commencement was 13.07.1993 and as per agreement, the date of completion of work was 12.04.1995 and the work was actually completed on 10.11.1995 and the delay was condoned vide letter dated 27.09.1996 Ex.P5, whereby the period of completion was extended by the defendant without levy of compensation. As per the provisions of Clause 10 CC, the plaintiff shall be entitled for M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.40 of pages 60 the compensation in respect of the escalation of prices of materials and services rendered subject to the condition that such compensation for escalation in prices shall be available only for the work done during the stipulated period of the contract including such period for which the contract is validly extended under the provisions of clause 5 of the contract without any action under clause 2 also subject to the condition that no such compensation shall be payable for a work for which the stipulated period of completion is 6 months or less. It means the plaintiff will not be entitled for the compensation towards escalation in case the extension period is six months or less. However in this case it is a matter of record that the extension was granted for more than six months period i.e. six months and 28 days, so plaintiff is entitled for the compensation on that account. The act of extension of work by the defendant and further issuance of the completion certificate shows that the work of the plaintiff was satisfactory. The PW1 has confirmed that the details regarding calculation in respect of 10 CC was given to the defendant alongwith its letter of demand dated 19.02.1997 and the defendant has brought no evidence in rebuttal. Further, the defendant has no where disputed or challenged the final bill and the bill regarding clause 10 CC and M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.41 of pages 60 therefore, the plaintiff is entitled for the recovery of amount of Rs.3,44,476/ towards the escalation in prices under clause 10CC of the agreement. Issue stands decided accordingly.
13. Now, for the sake of convenience before taking issues no.3, 4 & 5, I shall decide issues no.6, 7 & 8 and since they all are interconnected, so I shall take all of them together.
14. ISSUE No.6: Whether the plaintiff had completed the work to the satisfaction of the defendant? If so, to what effect? ISSUE No.7: Whether there were any defects in the work? If so, to what extent?
ISSUE No.8: If issue no.7 is proved in the affirmative, whether the plaintiff has removed such defects? If not, to what effect?
It is the case of the plaintiff that the plaintiff completed the entire work to the satisfaction of the defendants on 10.11.1995. There were delays by the defendants on various accounts and, therefore, the time for completing the work was extended without levy of any compensation and the work was deemed to be completed and duly recorded on 10.11.1995 by way M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.42 of pages 60 of completion certificate given by the defendants.
On the other hand, according to defendant admittedly the plaintiff had physically completed the work on 10.11.1995 but there were various defects, shortcomings in the work for which the completion was recorded conditionally subject to the said works being completed by the plaintiff and the said certificate enumerated the following works to be done:
(i).Final coat of cement paints/white washing and painting of doors and windows at the time of allotment.
(ii).Final griding of floors.
(iii).Refixing of removed China Wares and brass fittings at the time of allotment.
(iv).Fixing of glass panes at the time of allotment.
(v).Easing of doors and windows at the time of allotment.
(vi).To attend any defects at any stage such as repair of plaster, grinding of floors and painting of doors & windows, working of sanitary installations and any other defects found out by competent authority till allotments.
(vii).Final painting of C.I., S.C.I. And rain water pipes.
(viii).To make Security arrangements for sanitary wares and brass fittings till the same are refixed, which will be in joint custody.
(ix).Testing of water line.
M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.43 of pages 60
(x).Drawal of supplementary agreement.
The plaintiff rebutted and denied the defence as raised by defendant that the plaintiff completed the work in all respect and the defendant at no point of time even after the expiry of maintenance period raised any doubts regarding the plaintiffs work.
Perusal of records reveal that by way of the letter Ex.P5, the defendant granted extension of time upto 10.11.1995 without levy of any compensation and the said extension of time was granted in favour of the plaintiff by the defendant on 27.09.1996 without levy of compensation, after four months of expiry of maintenance period. This fact indicates that till 27.09.1996 the defendants were fully satisfied with the work and that the plaintiff had completed the work to the satisfaction of the defendant. Further, the perusal of letter dated 23.09.1996 Ex.P4 shows that the following admissions/submissions have been mentioned in Ex.P4:
(i).Work has been physically completed on 10.11.1995.
(ii).Maintenance period for six months has since been over.
(iii).Assistant Engineerincharge of work has certified that final bill is in plus.
M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.44 of pages 60
(iv).As per CPWD Manual Vol.2, it is recommended for release of Bank Guarantee in connection with security of above work to the tune of 90% in view of mandatory requirement which the Agency fulfills. Submitted for approval for release of 90% amount of the security i.e. Rs.3,00,000/.
Maintenance period was expired on 09.05.1996 and Ex.P4 recommending release of 90% security was issued on 23.09.1996. Perusal of record shows that Ex.P4 was issued after approximately four months of the expiry of maintenance period and as recommended in the letter, in the first month of January, 1997, 80% of the security amount i.e. Rs.2,40,000/ out of Rs.3,00,000/ was released to the plaintiff and only Rs.60,000/ of the security amount was withheld. All these facts confirmed that there was no lapse on the part of the plaintiff and the plaintiff completed the work and as there was no defects or balance work, so the defendant recommended release of 90% of the security amount and accordingly released 80% of security amount and withheld only 20% i.e. Rs.60,000/ which in turn reflects that the work, if any, left incomplete was worth Rs.60,000/. Further as per stipulation contained in clause 17 of Agreement Ex.DW1/1, if there were any defects or balance work, the department was to M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.45 of pages 60 forfeit the security deposit.
The relevant portion of clause 17 of Ex.DW1/1 reads as under: "or if any damage shall happen to the work while in progress from any cause whatever or if any defect shrinkage or other faults appear in the work within six months (3 months in the case of the any other than road work costing Rs.40,000/ & below) after a certificate final or otherwise of is completion.
Completion shall have been given by the Engineerincharge on aforesaid arising out of defective or improper materials or workmanship the contractor shall upon a receipt of a notice in writing on that behalf make the same good at his own expense or in default the Engineerincharge may cause the same to be made good by other workmen and deduct the expense from any sums that may be then or at any time thereafter may become due to the contractor, or from his security deposit."
It is a matter of record that in this case the department has recommended release of 90% of the security deposit which proves that there were no defects or balance work. M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.46 of pages 60 Clause 14 of Ex.DW1/1 relates to the action and compensation payable in case of bad work and it is an admitted fact that there is no notice as required under Clause 14. Had there been any defects or balance work, as per the agreement it was necessary for the defendant to issue a notice under Clause 14 within the maintenance period and in the present circumstances where no such notice has been issued by defendant to plaintiff, so it can not be said that there was any bad work or work was incomplete. Further as per the agreement, the completion certificate is to be issued by the defendant after the completion of work in all respect and the balance work/defects, if any, to be completed during maintenance period of six months which reckons from the date of completion certificate are to be reflected in the certificate and the perusal of the completion certificate shows that item no.1 to 9 are mentioned in the completion certificate reflects the balance work and the works mentioned therein were to be completed at the time of allotment but perusal of record shows that the time of allotment was never intimated to the plaintiff and there is no evidence to that effect also. The letter dated 19.02.1997 Ex.P9 shows that even after the expiry of maintenance period on 09.05.1996, the defendant was failed to take possession of flats in M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.47 of pages 60 question and in the circumstances when items no.1 to 9 as mentioned in completion certificate as balance work which were to be performed at the time of allotment of flats and it is a matter of record that the plaintiff was not intimated about the time of allotment and the defendant was failed to allot the flats even after the expiry of maintenance period and besides the work which were mentioned in the certificate, the plaintiff was not suppose to perform any other work and as per the stipulation of Ex.DW1/1, it was not mandatory for plaintiff to enter into supplementary agreement, it cannot be said that the work was not satisfactory. Lastly the fact that the defendant paid the last running bill on 17.01.1996 (during maintenance period) which again substantiates the stand of the plaintiff that there were no defects or balance work left.
All the aforesaid has established that the plaintiff had fully completed the work to the satisfaction of defendant except the items no.1 to 9, the incomplete work, which were mentioned in the completion certificate but since those were to be performed at the time of allotment of flats and the defendant was failed to intimate the time of allotment to plaintiff and also it was failed to make the allotment within the maintenance period, so the plaintiff can not M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.48 of pages 60 be held liable for them. Besides the above stated left work, the defendant has been failed to point out any defect or shortcoming, so it cannot be said that there were defects in the work of plaintiff and the same was not satisfactory. As such, issues no.6, 7 & 8 are liable to be decided in favour of plaintiff and against the defendant and they all stand decided accordingly.
15. Now I shall proceed to decide issue no.3.
16. ISSUE No.3: Whether the defendant has illegally withheld a sum of Rs.20,000/? If so, to what effect?
It is the case of the plaintiff that during the course of the work a sum of Rs.20,000/ was detained and unlawfully withheld by the defendants from Running Account Bills towards the alleged Quality Control paras. The partners of the plaintiff firms were called to attend the office of the defendants on various occasions and even the Quality Control Department closed the file in May, 1997 finding the quality of work done by the plaintiff firm to be proper and therefore, withheld amount was to be forthwith released to the plaintiff firm. Despite the same, the said sum of Rs.20,000/ is still outstanding from the defendants to the plaintiff firm.
M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.49 of pages 60 The factum of withholding of the amount of Rs.20,000/ is not denied by the defendant but it is the claim of defendant that the said amount was withheld on account of work left incomplete by the plaintiff and the same was to be released only after completion of the same. DW1 in his examinationinchief reiterated that a sum of Rs.20,000/ has been withheld on account of work left out incomplete by the plaintiff as pointed out by the Quality Control and the partner of the plaintiff attended the office of the defendant and even promised to complete the work left incomplete but they reciled from the said promise as a result of which the said amount has not been given back to the plaintiff. Except raising a formal suggestion to the effect that the work was not left incomplete to which the witness denied, the testimony of witness was not impeached by the plaintiff in the cross examination by putting questions on that point nor any evidence in rebuttal has been brought by the plaintiff, so in these circumstances it can not be said that the sum of Rs.20,000/ has been illegally withheld and as such the plaintiff is not entitled for the release of the said amount. Issue stands decided accordingly.
17. ISSUE No.9: Whether the plaintiff is entitled to the security lying by M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.50 of pages 60 way of fixed deposit receipt? If so, to what effect?
In the instant suit besides the others, the plaintiff is also seeking the recovery of Rs.60,000/ towards the release of balance security deposit.
As per plaintiff though the work was completed way back on 10.11.1995 and the quality control department had also closed the file, but without any rhyme or reason the defendants have been failed to release the balance security of Rs.60,000/ lying with them by way of Fixed Deposit Receipts which they are liable to pay to the plaintiff firm. There was no obligation under the contract on the part of the plaintiff firm to keep any security or watch and ward at the site after the completion of work which in the present case was completed on 10.11.1995 as per completion certificate recorded by the defendants. Thus, the plaintiff is entitled for the recovery of the aforesaid amount of Rs.60,000/ from the defendant.
The fact of retention of Rs.60,000/ (deposited in the form of security deposit) has not been disputed by the defendant, however, it has been claimed that since the provisional completion certificate was recorded subject to carrying out certain defective works and the said amount of Rs.60,000/ was to be released on ly M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.51 of pages 60 after the completion of the said work and the plaintiff had refused to complete the said work and infact removed their security also, so the plaintiff is not entitled for the recovery of the said amount. The said fact has been confirmed by DW1 in his examinationin chief and it is not disputed by the plaintiff that the incomplete work mentioned at items no.1 to 9 in the completion certificate were not attended/completed by the plaintiff, so the plaintiff is also not entitled for the release of the said amount. Issue stands decided accordingly against the plaintiff.
18. Now I shall take issue no.4 & 5 together, as they are interconnected.
19. ISSUE No.4: Whether any amount is due to the plaintiff under the final bill? If so, to what extent?
ISSUE No.5: Whether the defendant was justified in deducting certain amounts, as mentioned in paragraph 6 of the written statement from the final bill of the plaintiff? If so, to what extent?
As per the claim of the plaintiff, he is entitled for the recovery of Rs.8,02,186/ in respect of the final bill.
According to Ld. counsel for plaintiff, the defendant had not M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.52 of pages 60 made the payment of final bill within six months of the completion of work as per the requirement of agreement Ex.DW1/1, so vide Ex.P9 dated 19.02.1997, the plaintiff submitted its final bill for the work done for the balance payable sum of Rs.8,02,186/ and 10 CC bill for Rs.3,47,956/ and others. (The questions of 10 CC bill and other amount have been separately dealt with in the other issues.). Further, vide Ex.P9 dated 19.02.1997, the plaintiff also intimated the defendant that he would remove his watch and ward by 28.02.1997 and also requested the defendant to take over the possession and to make the payment of balance amount. The defendants vide letter dated 07.03.1997 Ex.P25 sent their reply to Ex.P9 and significantly no specific mistake or discrepancies was been pointed out in the final bill or the 10 CC bill by the defendant and further, in the whole pleadings documents and evidence, the final bill and 10 CC bill and other claims of the plaintiff has never been disputed by the defendant.
Perusal of Ex.P9 and Ex.P25 show that there is a substance in the contention of the plaintiff. Further, during the course of his cross examination DW1 conceded that he has not examined the final bill Ex.P11, submitted by the plaintiff as he was not posted there at the relevant time nor he had examined the M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.53 of pages 60 same even after he took over as Executive Engineer and further he did not examine Ex.P11 even after the case has been filed in the Court.
Even in the cross examination of PW1, no suggestion was put to the witness to dispute the final bill. There were two requirement for the formulation of final bill i.e. the admitted measurement and admitted rates. The admitted rates are reflected in the Agreement and in Ex.PW2/1 i.e the last and eighteenth running bill recorded by the defendant and in the eighteenth running bill the department made the payment on part rates. In the final bill, the plaintiff took the measurement from the eighteenth running bill Ex.PW2/1 and the final bill is with respect to the balance part rates not paid in the eighteenth running bill and hence the final bill is correct.
The perusal of the letter Ex.P25 reveals that the sole reason for not making payment of the final bill as mentioned by the defendant is that the plaintiff was failed to complete the work as mentioned in the completion certificate. However, the defendant in their Written Statement under para 6 had taken completely a different defence and have reflected completely different defects other than those mentioned in the completion certificate but the M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.54 of pages 60 defendant has not produced any evidence to prove their defence as mentioned under para 6 (a) to (c) of their Written Statement. There is no counter claim also. Hence the defence taken therein remained unproved. As such, the plaintiff is entitled for the recovery of Rs.8,02,186/ in respect of the final bill. Both the issues stand decided accordingly.
20. ISSUE No.10: Whether the plaintiff is entitled to a sum of Rs.3,00,000/ or any other amount by way of the amount incurred on watch and ward staff for the period 10.11.1995 to 28.02.1997?
The plaintiff has claimed a sum of Rs.3,00,000/ towards watch and ward w.e.f. 10.11.1995 to 28.02.1997 @ Rs.8,000/ per month.
It is the case of the plaintiff that despite of the completion of work having been recorded and even the warranty period having lapsed the plaintiff firm was forced to continue its security i.e watch and ward as the defendants did not take over the site/flats and this continued upto February,1997. Subsequently, despite of the writing to the defendants to take over the flats and that the plaintiff firm would be withdrawing its security on expiry of month of February, 1997, the defendants did M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.55 of pages 60 not take any step in that regard. As a result of which, the plaintiff was forced to continue watch and ward from 10.11.1995 upto the end of 28.02.1997 whereby the plaintiff firm had to incur a sum of Rs.8,000/ per month towards watch and ward by engagement of security personal/chowkidars etc. which was otherwise the responsibility of the defendants. The watch and ward of the flats was not the part of the contract, neither it was the responsibility of the plaintiff to keep watch and ward of the flats after completion certificate was obtained by the plaintiff.
Perusal of the letter dated 07.03.1997 Ex.P25, which is the reply by the defendant, in which it has been mentioned in the last para that "in case of removal of watch and ward, you will be responsible for any loss, damages etc." The said writing on the part of the defendant establishes that the plaintiff was doing the watch and ward at least uptill 28.02.1997 which entitles him for claiming the watch and ward charges from the defendant.
In his examinationinchief tendered by way of affidavit PW1 has testified that: "the plaintiff firm was forced to engage watch and ward staff/ M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.56 of pages 60 chowkidars from 10.11.1995 upto 28.02.1997, when having no alternative the plaintiff wrote to the defendants that they are withdrawing their watch and ward after 28.02.1997 after which the defendant engaged their own security at the site. He further testified that in the process, the plaintiff firm had to incur a sum of Rs.8,000/ per months towards the said watch and ward which was not its obligation and for defendant to safeguard the site."
From the aforesaid admission on the part of the defendant and the testimony of the PW1, I am of the considered opinion that the plaintiff is entitled to claim the watch and ward charges from the defendant @ Rs.8,000/ p.m. for the admitted period from 10.11.1995 to 28.02.1997 i.e. for the period of 15 months and 20 days which comes to Rs.1,26,000/ (Rs. One Lakh Twenty Six Thousand Only). Issue stands decided accordingly.
21. ISSUE No.11: To what amount, if any, is the plaintiff entitled?
In view of my findings on the foregoing issues, the plaintiff is entitled for the recovery of the following amounts: M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.57 of pages 60 Sl. No. Particulars Amount (Rs.)
(i). Towards final bill. Rs.8,02,186/
(ii). Towards Clause 10CC. Rs.3,44,476/
(iii). Towards watch & ward. Rs.1,26,000/ TOTAL Rs.12,72,662/ Issue stands decided accordingly.
22. ISSUE No.12: Whether the plaintiff is entitled to interest? If so, at what rate and for what amount?
Since the defendants have withheld the aforesaid awarded amount of the plaintiff i.e. Rs.12,72,662/, without any rhyme and reason, so in my considered view, being the transaction involved in the question of a commercial nature, the plaintiff is entitled for the interest on the aforesaid amount @ 8% per annum from 09.05.1996 (i.e. the date of the expiry of the maintenance/ warranty period of six months from the date of the recording of the completion of work i.e. on 10.11.1995) till the date of recovery of the said amount from the defendants. Issue stands decided accordingly.
23. RELIEF: In view of my findings on the foregoing issues, a decree for the M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.58 of pages 60 sum of Rs.12,72,662/ alongwith interest @ 8% per annum from 09.05.1996 (i.e. the date of the expiry of the maintenance/warranty period of six months from the date of the recording of the completion of work i.e. on 10.11.1995) till the date of recovery of the said amount is awarded in favour of the plaintiff and against the defendants. Plaintiff is also awarded the proportionate cost of the suit. Decree stands passed accordingly.
24. Decree Sheet be prepared accordingly.
25. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 24.12.2010) ADDL. DISTRICT JUDGE
DELHI
M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.59 of pages 60
Suit No.09/08
M/s Bassi Builders Vs. Delhi Development Authority & Ors.
24.12.2010 Present: As before.
Vide a separate judgment, suit of the plaintiff is decreed. Decree Sheet be prepared.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ03 (C)/DELHI/24.12.2010 M/s Bassi Builders Vs. D.D.A. & Ors. (Suit No.09/08/97) Page No.60 of pages 60