Delhi District Court
Cs No. 37/17/98 (New No.8333/16) ... vs . Dda & Anr. 1/26 on 25 October, 2017
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
CS No. 37/17/98
New No. Civ. DJ-8333/16
Shri Gurdeep Singh
Engineers and Contractors
14/480, Sunder Vihar,
New Delhi-110041. ......Plaintif
versus
1. Delhi Development Authority
Through its Vice Chairman,
Delhi Development Authority
Vikas Sadan, Behind INA Market,
New Delhi.
2. The Executive Engineer,
Western Division No.9
Delhi Development Authority,
Mangla Puri, New Delhi-110045. .........Defendants
Date of institution of the case : 23.09.1998
Date of reserving of judgment : 03.10.2017
Date of pronouncement of judgment : 25.10.2017
JUDGMENT
1. The plaintif has filed a suit for recovery of Rs.5,00,000/-. The brief facts necessary for the disposal of the suit are as under:
2. The plaintif is a registered government contractor and is also a registered contractor of defendant in category Class-III. The plaintif has been executing the work of Civil Engineering nature with defendants and with other government departments when the 'percentage rates' sealed CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 1/26 tenders were invited by the defendant no.2 for the execution of work of "Development of land at Dwarka Project in South West of Delhi Phase-I SH: Premixing of 30 metre R/W Sectorial Road in Sector No. 20: Dwarka Phase-I". The plaintif was also one of the tenderers and ofered his rates, which were lowest amongst all the tenderers. Consequently, the rates ofered by the plaintif were duly accepted by the defendant no.2 vide his letter No. 55(11)WD-9/A/94-95 dated 21.06.1995. A formal agreement bearing No. 8/EE/WD-9/95-96 was also executed between the parties in relation thereto on a non- judicial stamp paper worth Rs.2/-. It is stated that as per the agreement, the date of start of the work in dispute was 1 st July, 1995 and stipulated date of completion of work was 31 st August, 1995.
3. It is stated that soon after the award of the work and in terms of the instructions duly given by defendant no.2 in the letter of award dated 21st June, 1995, the plaintif had accordingly contacted the Assistant Engineer to take instructions to start the work. The work was required to be done diligently and as per the programme duly narrated in Clause No.2 of the Agreement. The plaintif started wsork with due diligence and began to procure material etc. and also did other activities but there was no possibility to commence the work physically at site due to defendants non- fulfillment of reciprocal promises of provision of bitumen in terms of agreement. It was not possible for the plaintif to make physical commencement to work as was suggested upon in the agreement. The defendant in fact failed to provide bitumen within the stipulated date of completion. This fact can be verified from the Bitumen Register duly CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 2/26 maintained by the defendants and is till in the custody of defendant no.2. The said document is essential to be protected for the perusal of the Court. A copy of document was required to be delivered to plaintif but despite requests the copy has not been provided to the plaintif.
4. It is stated that another serious and major problem faced by the plaintif was to get repaired the large number of 'Pot Holes' existing in the roads where the work in dispute was required to be done by the plaintif. The defendant no.2 neglected to carry out the minor repairs to the defects caused to the road initially. In due course of time or with the lapse of passage of time and consequent to the constant use of defective and damaged roads by the heavy vehicles, the minor defects i.e. 'Pot Holes' were converted into extensive damages and render the roads unuseable. Before start of the original premix work it was most essential to first repair the deep and extensive 'Pot Holes' as mentioned above. The defendant was suggested to get repaired the road before the commencement of items of agreement otherwise it was difficult to obtain the smoothness in roads and made good workable roads. The defendants were able to give any decision for a long time and finally gave instructions to the plaintif to start the repair of the road surface and filling of the 'Pot Holes' etc.
5. It is stated that the execution of work of repair even done as per the instructions of defendant and was in terms of agreement, still the defendant was reluctant to record the measurement of work done as it was performed at site of work. The plaintif had made number of requests to CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 3/26 defendant no.2 to measure up the work done and calculate the quantity of bitumen actually consumed at the site of work for the repair of road. This was essentially to be done to prepare the extra work to be done and prepare the such estimates of the work required to be done. The plaintif wrote number of letters to defendant in this connection. The Assistant Engineer instead suggesting the eforts put by plaintif, had made some irrelevant statement with regard to issuance and consumption of material. The immediate protest was lodged by the plaintif which had fell to the deaf ears of the defendant no.2. The total repair work done by the plaintif was 170 cm. And apart from it the premixing of road was also carried out to the tune of 6500 sqm. by the plaintif.
6. It is stated that this fact was well within the knowledge of the defendant and it was duly measured by the Junior Engineer concerned on rough sheets with an assurance that the same shall be duly reduced into writing on the authentic measurement books. It is stated that presuming that defendant would not resile from its commitment, the plaintif neither insisted nor written any letter about the aforesaid fact for considerable long time. When the defendant no.2 was reluctant and adamant to record the measurement on authentic measurement books, the plaintif agitated very strongly for reducing this fact into writing but till date measurement of work of 'Pot Holes' has not been recorded. The defendant no.2 deliberately did not issue any bitumen to plaintif to do further work. The plaintif demanded the provision of balance quantity of bitumen and also posted number of letters in this connection but defendant no.2 did not provide the remaining balance CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 4/26 quantity of bitumen to facilitate the plaintif to complete the balance work. The defendant no.2 even though unilaterally granted number of extension of time for the execution of work but did not provide the balance quantity of bitumen till the rescission of contract.
7. It is stated that the defendant no.2 had served the plaintif with numerous illegal, wrongful and untenable notices. The said notices were duly replied by the plaintif. The defendant no.2 has deliberately and knowingly committed the biggest error and illegality when it has rescinded the contract/agreement in dispute vide its letter No.55(11)/WD-9/A/94-95/1366 dated 27.09.1997. The said letter posted belatedly on 30.09.1997 which took about 6 days to reach the plaintif to avoid to record the joint measurements of work done by the plaintif. Resultantly the proposed date for the record of joint measurement could not be implemented. As no joint measurements were possible, it was incumbent on the part of defendant no.2 to have fixed another date for the record of measurements, which was never fixed by the defendant no.2. The defendant no.2 in a later letter had threatened to record measurements unilaterally but did not deliver the copy of it to plaintif despite repeated demands which establish that some manipulation was carried by defendant no.2 and consequently the alleged unilaterally recorded measurements he has hesitated to provide to the plaintif.
8. It is stated that in terms of agreement when a demand was raised by the plaintif for the provision of copy of agreement, the defendant was bound to provide it and also CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 5/26 copies of bills were required to be provided if demanded by plaintif. The plaintif has also a right to peruse and verify all the relevant joint records and documents concerning the contract which is under the power and possession of the defendants but despite requests, the same were not provided. This fact prevented the plaintif to furnish the relevant details and there may occur a variance in detailing the amount in the suit for recovery.
9. It is stated that the plaintif has served the defendant with a notice dated 25.01.1998 under Section 53(b) of Delhi Development Act by post and by hand. The notice was belatedly replied by defendant vide its letter no. 55(11)/WZ-9/A/94-95/371 dated 23.03.98. The plaintif has duly replied it through his Counsel on 13.04.98.
10. The plaintif claimed a sum of Rs.3,00,000/- for the execution of work which includes the repair to the road i.e. 'Pot-holes' etc. There may be a variance in the amount claimed which shall be accordingly modified when the documents required by plaintif are provided by the defendant no.2. The plaintif claimed Rs.50,000/- on account of security deposit. This amount is lying with the defendant no.2 duly deducted time to time from the running bills when the work was duly executed by plaintif. The security deposit is unlawfully and illegally forfeited by defendant no.2. the plaintif claimed Rs.1,00,000/- as loss of profit and other damages because of various breaches committed by the defendant has delayed the work. The plaintif also claimed a sum of Rs.5,500/- as cost of notice and further claimed interest @ 24% per annum.
CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 6/26
11. Defendants filed written statement and in the preliminary objections, it is stated that the suit has not been properly valued for the purpose of court fee and jurisdiction. The suit being of the value of more than Rs.5 lacs, this court has no pecuniary jurisdiction to try the suit. The court fee paid is deficient.
12. On reply on merits, the averments made by the plaintif in the plaint are denied as wrong and incorrect. It is stated that as per Clause -8 of the agreement, the plaintif/contractor was to submit the bills but when the plaintif had not submitted the bill, the department was forced to prepare the same after measuring the quantities in the presence of the plaintif which was also accepted by the plaintif in the M.B. The plaintif has not disclosed as to what kind of information was required to be given to him regarding the bill. After the award of work, the plaintif was to intimate the location of Hot Mix Plant, from where he was to bring the bituminous concrete after ready mixing of the same at the plant. In the absence of the non availability of this information, the bitumen could not be supplied. On receipt of the information, the bitumen was supplied to the contractor during March, 1996 after ascertaining the location of the plant. Even after the supply of sufficient quantity of bitumen, the plaintif failed to start the work till June, 1996. When department has felt that the contractor will not able to do the work due to his own mis-management, the department was compelled to transfer the bitumen at other works to avoid pilferage. If the plaintif had mobilized the resources in time, the work would have been started even in the March, 1996 CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 7/26 when the bitumen was given after ascertaining the location of the Hot Mix Plant. The work could have started only after three months from the supply of bitumen at the plant. It clearly violates the clause-2 and various other clauses of the agreement.
13. It is stated that repairing of plot hoes is a part of the agreement as per agreement item no. 2 for which the plaintif was bound to execute the item accordingly. This item was executed by the agency during the June, 1996 as per the record maintained and measurement were also recorded jointly by the plaintif and the J.E. in charge of the work. The plaintif has affixed his signatures in token of the acceptance of the quantity. The pot holes are measured before the execution of the work as the quantity to be filled in the pot holes cannot be measured later on. The final measurement regarding the pot holes have entered in the M.B. and was accepted by the plaintif. Upon examining the quantity claimed by the plaintif and the bitumen supplied by the defendants, it would be clear that the work done by the plaintif was totally sub standard once which can never be acceptable by the defendants.
14. It is further stated that the quantity executed was although measured on rough sheet at site with a fear of damaging of measurement book. Further these measurements were recorded exactly in the same state in the Measurement Book in the presence of the plaintif and which was also accepted by him in the measurement book. The quantity is also matching with the bitumen consumption issued by the department for the same work. The exonerated CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 8/26 quantity is after thought of the plaintif to cove up his misdeed of not executing the work. It is stated that the provisional extension of time is granted in order to keep the contract alive as per clause - 5 of the agreement and the bitumen is supplied to the contractor after ascertaining his capacity to do the work.
15. It is stated that under the given circumstances there was no alternative left with the defendant but to rescind the contract vide the letter referred by plaintif. The falsity of the claims of the plaintif is further made out from the fact that whereas in the notice he alleges that the letter was received by him after nine weeks and in the present suit he has stated that the letter had been received within six days. The defendants had given 3-4 opportunities to the plaintif even after the rescission of the contract for recording the joint measurement. However, the plaintif never turned up for final measurement for the reasons best known to him. Regarding fixation of the date of the final measurement, the office letter No. F55(11)WD9/A/94-95/1366 dated 27.09.97 clearly shows that the plaintif had been requested to attend the office of the defendants for measurement. The plaintif agency never demanded the copy of the agreement and running account bills. As per Clause -8 of the agreement, the bill is required to be submitted by the plaintif. The plaintif has signed the record at site in token of his acceptance as well as of the knowledge of facts.
16. The defendants have denied the claims made by the plaintif and prayed to dismiss the suit of the plaintif with costs.
CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 9/26
17. Plaintif filed replication to the written statement of the defendants, in which the plaintif has denied the averments made in the written statement and reiterated the averments made in the plaint.
18. From the pleadings of the parties, the following issues are framed by my Ld. Predecessor vide order dated 25.04.2001:
1. Whether the suit is properly valued for the purpose of court fees and jurisdiction?
2. Whether the court has pecuniary jurisdiction to try this case?
3. Whether the plaintiff is entitled for a decree of Rs.5,00,000/- as prayed?
4. Relief.
19. To prove his case plaintif got himself examined as PW1 and thereafter as per statement of Sh. B.M. Sehgal, Counsel for the plaintif, the plaintif evidence was closed on 13.02.2003.
20. In support of their defence, defendants got examined DW1 Sh. B.B. Airy, Executive Engineer and thereafter as per statement of Sh. K.D. Sharma, Counsel for the defendant, the defendant's evidence was closed on 08.02.2008.
CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 10/26
21. PW1 Sh. Gurdeep Singh - plaintif tendered his affidavit in evidence, in which he reiterated the averments made in the plaint and mentioned in his affidavit letter dated 29.05.95 about negotiation of rates as Ex. PW1/1; letter dated 14.06.1995 about further negotiations of rates as Ex. PW1/2;
letter of defendant dated 21.06.1995 as Ex. PW1/3; letter dated 23.02.1996 about bitumen issued in other works being used for the repair of 'pot-holes' as Ex. PW1/4; letter dated 18.12.1996 about the defendant's unilaterally extending the time of completion of the work in dispute up to 31.01.1997 as Ex. PW1/5; show cause notice dated 19.12.1996 served by defendant upon the plaintif as Ex. PW1/6; letter dated 01.01.1997 by which plaintif replied the contents of the letter dated 18.12.1996 and 19.12.1996, as Ex. PW1/7; letter dated 18.03.1997 containing admission that against stipulated quantity of 66.59 M.T., the defendant had provided only 36.45 M.T. most of which is used in repair work, as Ex. PW1/8; letter dated 01.04.1997 in reply to defendant's letter dated 18.03.1997 as Ex. PW1/10; letter dated 20.06.1997 of defendant unilaterally extending the time of completion of work up to 30.09.1997 as Ex. PW1/11; show cause notice dated 21.06.1997 issued by defendant as Ex. PW1/12; letter dated 07.07.1997 written by plaintif in reply to defendant's letter dated 20.06.1997 and 21.06.1997 as Ex. PW1/13; letter dated nil of defendant alleging that the work done was duly recorded in MB as Ex. PW1/14; letter dated 06.08.1997 of the plaintif in reply to letters dated 20.06.1997 and 21.06.1997 as Ex. PW1/15; letter dated 20.08.1997 of the plaintif in continuation to letter dated 06.08.1997 requesting for release of bill for work already measured as Ex. PW1/16; letter dated 20.08.1997 of the defendant in reply to the plaintif's letter CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 11/26 dated 20.06.1997, 21.06.1997 and 07.07.1997 as Ex. PW1/17; letter dated 21.08.1997 written by defendant in reply to the plaintif's letter dated 06.08.1997 as Ex. PW1/18; letter dated 23.08.1997 of the plaintif in reply to the defendant's letter dated 20.08.1997 as Ex. PW1/19; letter dated 27.08.1997 written by defendant in reply to the plaintif's letter dated 20.08.1997 as Ex. PW1/20; letter dated 29.08.1997 of the defendant in reply to the plaintif's letter dated 23.08.1997 as Ex. PW1/21; letter dated 28.08.1997 written by plaintif in reply to the defendant's letter dated 21.08.1997 as Ex. PW1/22; letter dated 30.08.1997 written by plaintif in reply to the defendant's letter dated 29.08.1997 as Ex. PW1/23; letter dated 02.09.1997 written by plaintif in reply to the defendant's letter dated 27.08.1997 as Ex. PW1/24; letter dated 06.09.1997 written by plaintif in reply to the defendant's letter dated 29.08.1997 as Ex. PW1/25; letter dated 27.09.1997 written by defendant in reply to the plaintif's letter dated 28.08.1997 as Ex. PW1/26; letter dated 27.09.1997 by which defendant has justified its action of grant of unilateral extension of time and contested the department has supplied the material in terms of the agreement as Ex. PW1/27; letter dated 27.09.1997 written by defendant in reply to the plaintif's letter dated 02.09.1997 as Ex. PW1/28; show cause notice dated 27.09.1997 under Clause -3 of the agreement issued by defendant as Ex. PW1/29; letter dated 03.10.1997 is reply by defendant to the plaintif's letter dated 06.09.1997 as Ex. PW1/30; letter dated 06.10.1997 letter by plaintif in reply to the defendant's letter no. 1360, 1360 and 1366 all dated 27.09.1997 as Ex. PW1/31; notice dated 25.01.1998 issued by plaintif's Counsel upon the defendant as Ex. PW1/32; letter dated 23.03.1998 CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 12/26 addressed to the counsel of the plaintif in reply to the notice dated 25.01.1998 as Ex. PW1/33; letter dated 11.04.1998 posted by the counsel of the plaintif in reply to the defendant's letter dated 23.03.1998 as Ex. PW1/34. However, the documents mentioned in the affidavit and documents actually exhibited on record does not tally exactly.
22. The documents exhibited on court file are letter dated 23.02.1996 written by plaintif to the defendant as Ex. PW1/1; letter dated 18.12.1996 written by defendant to the plaintif as Ex. PW1/2; letter dated 19.12.1996 written by defendant to the plaintif as Ex. PW1/3; letter dated 07.01.1997 written by plaintif to the defendant as Ex. PW1/4; letter dated 18.03.1997 written by defendant to the plaintif as Ex. PW1/5; letter dated 01.04.1997 written by plaintif to the defendant as Ex. PW1/6; letter dated 21.04.1997 written by plaintif to the defendant as Ex. PW1/7; letter dated 20.06.1997 written by defendant to the plaintif as Ex. PW1/8; letter dated 21.06.1997 written by defendant to the plaintif as Ex. PW1/9; letter dated 07.07.1997 written by plaintif to the defendant as Ex. PW1/10; Letter dated Nil bearing no. 55 (7)WD-9/DDA/A94-95/1171 written by defendant to the plaintif as Ex. PW1/11; letter dated 06.08.1997 written by plaintif to the defendant as Ex. PW1/12; letter dated 20.08.1997 written by plaintif to the defendant as Ex. PW1/13; letter dated 20.08.1997 written by defendant to the plaintif as Ex. PW1/14; letter dated 20.08.1997 written by plaintif to the defendant as Ex. PW1/15; letter dated 21.08.1997 written by defendant to the plaintif as Ex. PW1/16; letter dated 23.08.1997 written by plaintif to the defendant as Ex. PW1/17; letter dated 27.08.1997 written by CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 13/26 defendant to the plaintif as Ex. PW1/18; letter dated 29.08.1997 written by defendant to the plaintif as Ex. PW1/19; letter dated 28.08.1997 written by plaintif to the defendant as Ex. PW1/20; letter dated 30.08.1997 written by plaintif to the defendant as Ex. PW1/21; letter dated 02.09.1997 written by plaintif to the defendant as Ex. PW1/22; letter dated 23.09.1997 written by defendant to the plaintif as Ex. PW1/23; Application for extension of time as Ex. PW1/24; letter dated 27.09.1997 written by defendant to the plaintif as Ex. PW1/25; letter dated 27.09.1997 written by defendant to the plaintif as Ex. PW1/26; letter dated 27.09.1997 written by defendant to the plaintif as Ex. PW1/27; letter dated 27.09.1997 written by defendant to the plaintif as Ex. PW1/28; letter dated 03.10.1997 written by defendant to the plaintif as Ex. PW1/29; letter dated 06.10.1997 written by plaintif to the defendant as Ex. PW1/30; Notice dated 25.01.1998 issued by plaintif's Counsel to the defendant as Ex. PW1/31; postal receipts and AD Card in respect of service of legal notice dated 25.01.1998 as Ex. PW1/32 to Ex. PW1/35; Notice dated 23.03.1998 issued by defendant to the plaintif as Ex. PW1/36; reply dated 11.04.1998 by plaintif's Counsel to the notice of the defendant as Ex. PW1/37 and postal receipts & AD Cards are Ex. PW1/38 to PW1/42; and cover page of Register of defendant as Ex. PW1/43.
23. PW1 Sh. Gurdeep Singh in his cross-examination deposed that the work was awarded to him on 21.06.1995. the date of start of work was 01.07.1995. The work was to be completed within two months from the date of commencement of work i.e. by 31.08.1995. The DDA had CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 14/26 given him the work site for start of work on 01.07.1995 itself. In the work contract, he had to lay stone aggregate for leveling or repairing the pot holes on the roads before the premix carpeting was to be done. Hardly two or three days time diference is made or required in filling pot holes work and laying of carpeting thereon. The pot holes filling was done by him in June 1996 and for the same the requirement of bitumen was necessary and the same was part of the agreement. The bitumen is provided by the Department. Since the same is required to mix with stone aggregate in filling the pot holes as well as while laying the carpet thereon on the road. He had raised the demand for supply of bitumen on the first day when he started the work i.e. July, 1995. To a specific question, he replied that he raised the demand first time in writing to DDA in his letter dated 23.02.1996 i.e. Ex. PW1/1. To another specific question that on receipt of your above letter by defendant/DDA, when the DDA supplied him the bitumen at site, he replied that his other work was in progress in Sector-XI in Division and DDA transferred bitumen from that site to this site immediately thereafter. To a question that whether the other work site where he was working was the part of this agreement/ contract or it was in diferent agreement/contract, he replied that the other site/work was subject to diferent agreement and independent contract but was in the same division.
24. PW1 Sh. Gurdeep Singh in his cross-examination further deposed that he has started the filling of pot holes within 2-3 days of the date of supply of bitumen by DDA at this work site. He cannot say whether the work was started by him in June, 1996. Since work was not completed, CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 15/26 therefore, he did not request to measure the work already done by him. DDA did not extend the time for completing the work. Without looking into the documents, he cannot tell as to whether DDA has extended the time for completion of the work or not. After going through Ex. PW1/2, he can say that DDA has extended time up to 31.01.1997. He did not remember if he had given in writing to the DDA that bitumen be made available at a particular site. He volunteered that he had taken the JD with him and AE and had orally informed them after showing the site. He admitted that bitumen was given in March, 1996. Whatever quantity was given, the same was consumed and work was done to that extent only. Joint measurement was done with regard to the work done. He admitted that DDA has rescinded the work. He had given final bill Ex. PW1/4 to DDA. He denied the suggestion that since he did not complete the work, DDA has rightly rescinded the work and imposed penalty. He denied the suggestion that DDA has rightly forfeited the security. He denied that his claim as set out in the plaint is false or he is not entitled to any amount against DDA.
25. DW1 Sh. B.B. Airy, Executive Engineer tendered his affidavit in evidence as Ex. DX, in which he reiterated the defence of the defendant and got proved on record copy of already exhibited agreement no. 8/EE/WD9/DDA/95-96 as Ex. D-1; copy letter/agreement dated 21.06.1995 as Ex.D-2; copy of letter dated 27.09.1997 as Ex.D-3; copy of letter to the Indian Oil Corporation as Ex. D-4; copy of letter dated 23.03.1998 to Advocate of plaintif as Ex. D-5; list of documents as Ex. D-6; copy of letter dated 21.09.1996 by defendant to the plaintif as Ex. D-7; copy of letter dated CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 16/26 21.06.1997 written by defendant to the plaintif as Ex. D-8; copy of notice by defendant's Counsel to plaintif's Counsel as Ex. D-9.
26. DW1 in his cross-examination admitted that the defendants have not filed on record the Site Order Book, Measurement Book and Hindrance Book pertaining to the work order in question. To a specific question he replied that he did not dispute any clause of agreement Ex. PW1/43 or Ex. D1. The document is admitted by him. He further deposed that he took over his charge from Sh. I.J. Mongia. He seen Mr. Bamba signing and he can identify his signatures. He had no separate written authority to file affidavit DX. He volunteered that being his position as an Executive Engineer, he is competent to file the affidavit on the basis of the record. To a specific question that has he filed the entire record he had perused while preparing the affidavit DX, he replied that his affidavit is based on the affidavit of his previous official Mr. Bhamba, then Chief Engineer Mr. Rastogi, who had retired. He affidavit is based on their affidavit. He denied the suggestion that he had not applied his brain in preparing affidavit DX. He admitted that his affidavit DX is affidavit of earlier affidavit of Mr. Rastogi. He volunteered that it is the same. He has knowledge about the clauses of agreement enumerated in his affidavit. He denied the suggestion that when there exist contradictory clauses like extension of time and levy of compensation, that time ceased to be the essence of the contract. He volunteered that clauses of the agreement are very much clear and duly signed by the contractor.
CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 17/26
27. DW1 in his cross-examination further deposed that as per clause 2, the Suptd. Engineer is fully empowered to levy compensation for delay in execution of the work and time is essence of the contract as per the agreement. The contractor did not inform the location of the hotmix plant as per the terms of agreement and even after supply of the bitumen by the department the contractor has arranged his material to execute the work and delayed the execution of work abnormally with the reasons best known to him. So many notices issued to him even then he failed to execute the work within time allotted or within provisional extension alloted by the competent authority, specifically to keep the agreement alive, that extension has nothing to do with final extension of time for which the Suptd. Engineer is final competent authority. Bitumen was to be supplied by the DDA. DDA generally buys bitumen from Indian Oil. Bitumen was supplied in March 1996. he did not remember the date of indent as the record was available with EWD9. DDA's letter to Indian Oil Corporation is dated 12.02.1996. The date of completion was 31.08.1995 in the present contract. He admitted that the time allowed was two months. As per Clause 2 of the agreement Supdt. Engineer was competent to grant the final extension of time. He volunteered that provisional extension was granted by the Executive Engineer. He denied the suggestion that as per Clause 5 of that agreement the Executive Engineer was competent to extend the time. He volunteered that upto the amount of contract of Rs.1 lac. The Executive Engineer is competent to extend the time finally under Clause 5. He denied the suggestion that as per clause 2 of the agreement the Supt. Engineer is only competent to levy compensation and cannot decide the CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 18/26 question of delay. At portion A to A in para 4 of affidavit DX, the stipulated period and periodical term has been referred in Clause 2 read with Clause 3 of agreement.
28. DW1 in his cross-examination further deposed that he did not remember when provisional extension from time to time but it was given on 21.09.1996. He did not remember whether the provisional extension documents were filed in support of his affidavit but letter dated 21.09.1996 has been placed on record. He did not remember the previous provisional extensions. He cannot bring the record personally however succeeding official can produce the same. He can request the department but he cannot insist them for production of such record. He denied the suggestion that the Suptd. Engineer has got the Appellate Authority to intervene the matter only when the contract request him to do so. He can request the present Executive Engineer to produce the record. He admitted that EOT is in respect of extension of time Ex. DW1/P-1. He denied the suggestion that penalty imposed by Superintending Engineer and DDA was erroneous.
29. DW1 to a specific question that can he name the documents placed before the Superintending Engineer when the extension of time was sought, he replied that the documents are on record but he cannot enumerate there names today. To a specific question that the clauses of agreement were very much clear and self explanatory and agreed by both the parties. So far he recollect the term compensation is not expressed in Clause 2 instead word "levy" is there. He admitted that he has to supply the bitumen to the plaintif. The DDA had received bitumen in CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 19/26 March, 1996. As per Clause 2 of the agreement, the time was essence of the contract. He admitted that the work was to be completed within the stipulated period which was upto 31.08.1995. To a specific question he admitted that non supply of bitumen by the DDA to the plaintif amounts to breach of term of agreement. He volunteered that the plaintif had not begin the work and did not arrange any kind of material nor he informed the DDA the location of hot mix plant where the bitumen was to be supplied. As soon as the information was received from the plaintif in March, 1996 about the hot mix plant, immediately supplies were made in March 1996 itself
30. DW1 to a specific question, he replied that DDA does not stock bitumen. When information about the hot mix plant was provided by the plaintif to the DDA, immediately supply order was placed to Indian Oil Corporation, as Indian Oil Corporation destinate the bitumen at the places advised by the DDA and also in the name of the person to whom it is to be supplied. The Indian Oil Corporation was advised on 12.02.1996 for supply of bitumen to the plaintif. He admitted that as per letter dated 14.11.1995, the Executive Engineer (Store Division) was advised for supply of bitumen, the letter is Ex. DW-1/P-2. He volunteered that the letter dated 12.02.1996 Ex. DW-1/P-3 was written by Executive Engineer Division to Indian Oil Corporation. To a specific question that even if the contractor had communicated them on the date of start of the work, about the location of hot mix plant, it was not possible for them to arrange the bitumen within the stipulated time because it takes more than 4 months time to arrange the bitumen, he replied that it is not CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 20/26 so because the department was very competent to arrange the bitumen in time in case the contractor fulfills its liability and arrange the material within the stipulated period.
31. DW1 in his cross-examination further deposed that he did not remember whether they had written any letter to the plaintif about his non arrangement of material. He admitted that the nature of work as premix. He also admitted that bitumen was one of the essential material for the work of premix. He did not remember the quantity required for the work involved and it is a matter of record. He cannot admit or deny that the quantity of bitumen was required more than 150 metric tone since he did not remember the quantity. He denied the suggestion that he has not requisitioned more bitumen from the Indian Oil Corporation or from any other source to complete the work. He volunteered that the contractor failed to do the assignment in respect of the bitumen supplied to him and the department was compelled to transfer the bitumen to other work. He denied that the bitumen was not supplied directly to the contractor or it was exclusively supplied to the not mix plant. He volunteered that as per Ex. DX-A to Ex.DX-D, the bitumen was received and acknowledge by the contractor personally. He denied the suggestion that they had received bitumen 36.49 mt. tone. After checking the register brought by him, he confirmed that the quantity of bitumen supplied was 36.49 MT, the copy of register is Ex. DXT. He denied that the bitumen supplied to the contractor was utilized and exhausted for repairing the "pot holes" of roads. He denied that concerned JE had recorded roughly the aforesaid work of "pot holes" of roads or he had not intentionally placed the record on authentic CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 21/26 measurement book. He did not remember as to how much bitumen was consumed and recorded in respect of pot holes of roads. He denied that the contractor was prevented to institute the work because of non supply of bitumen. He denied that the contractor has executed the work to the tune of Rs.3 lacs with the bitumen they have provided, neither the work is measured or paid. He denied that Rs.50,000/- is lying in the shape of security deposit which they deliberately not paid. He volunteered that the security has already adjusted against the recovery against the plaintif. He denied that the contractor was prevented to earn the profits when he is not permitted to execute the work.
32. I have heard Sh. B.M. Sehgal, Counsel for the plaintif and also gone through the written arguments. I have also heard Sh. K.D. Sharma, Counsel for the defendants. My findings on issues are as follows:
ISSUE NOS. 1 & 233. Issue nos. 1 and 2 are framed on the basis of preliminary objections taken by the defendant with regard to the valuation and payment of court fees and for pecuniary jurisdiction. I have gone through the averments of the plaint. The suit is valued at Rs.5 lacs and appropriate court fees of Rs.7,225/- has been affixed. I do not find any illegality in the valuation of the suit property for the purpose of court fees and jurisdiction. There is no dispute with regard to the pecuniary jurisdiction as on today in the present court. Therefore, both these issues are decided in favour of plaintif and against the defendants.
CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 22/26 ISSUE NO.3
34. The issue no. 3 has been framed for a total claim of Rs.5 lacs and onus to prove the issue is on the plaintif. In the plaint, the plaintif claimed Rs.3 lacs for execution of work including repair of 'pot holes' etc. to the road; Rs. 50,000/- on account of security deposit; Rs.1 lacs for loss of profit and other damages; Rs.5500/- as cost of legal notice and interest @ 24% per annum of Rs.45,550/-.
35. At the outset, it is pertinent to mention here that the factual matrix of the present case rest upon the documentary evidence led by both the parties and proved during the evidence of both the parties. The detailed testimony has been discussed hereinabove of both the parties. According to averments in the plaint, the plaintif's case is that a work for development of land at Dwarka Project in South West of delhi Phase-I SH: Premixing of 30 metre R/W sectorial Road in Sector No. 20: Dwarka Phase-I, having estimated cost of Rs.7,36,634/- was awarded vide Award No. 55 (11)/WD-9/A/94-95 dated 21.06.1995. the date for start of the work was 01.07.1995 and time allowed to complete the work was two months. However, the contract was rescinded on 27.09.1997 and a letter was received by the plaintif on 03.10.1997. There is no final bill paid to the plaintif. The award of work is proved and admitted by the parties is Ex. D-
2. Accordingly, admitted facts as per documents proved on record are that the work was not started and completed in the stipulated period as per Ex. D-2.
CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 23/26
36. The fundamental plea of the plaintif is that as per agreement between the parties, the defendants did not supply the Bitumen within the stipulated date for completion. The defendants' plea is that the plaintif's contractor was to intimate the location of Hot Mix plant from where he was to bring the bitumen concrete after ready mixing of the same at the plant and in the absence of non availability of this information, the bitumen could not be supplied at the plant. As soon as information received by the defendants, bitumen was supplied to the contractor in March, 1996 in sufficient quantity but plaintif failed to start the work till June, 1996. The plaintif was also not brought the requisite material for mixing and work was only started after three months of the supply of bitumen at the plant so there is clear violation of Clause 2.
37. As per letter proved by plaintif Ex. PW1/1 dated 23.01.1996, the bitumen was supplied to the plaintif by the defendant but he demanded more quantity of the bitumen. Ex. PW1/2 is a letter from the Executive Engineer of the defendant to the plaintif, according to which the time for completion of work was extended up to 31.01.1997. Ex. PW1/3 is another letter from Executive Engineer dated 19.12.1996, according to which the work was not completed and action contemplated against the plaintif. The plaintif replied the letter vide Ex. PW1/4 dated 07.01.1997. He admitted that there is a delay in execution and completion of the awarded work and demanded 170 CUM of bitumen. The letter Ex. PW1/5 of Executive Engineer dated 18.03.1997 again a request was made by defendant to complete the work and explain about 36.45 M.T. bitumen which has already CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 24/26 been issued. The provisional extension was granted vide Ex. PW1/8 dated 26.06.1997 by the defendant. Lastly, the Executive Engineer asked the plaintif's contractor to join for measurement vide Ex. PW1/11, letter dated 29.08.1997.
38. These correspondences establishes that the defendants never delayed the supply of bitumen as demanded by the plaintif. The plaintif contractor failed to provide requisite information in time for supply of bitumen i.e. the Hot Mixing Plant. There is a considerable delay in execution and completion of the awarded work by the plaintif. I do not find any delay and fault of the defendants because the Hot Mixing plaint was to be arranged by the plaintif's contractor and not by the defendant. The awarded work even provisionally extended, even then the plaintif contractor failed to complete the work. In these peculiar circumstances, the rescindment of contract vide letter dated 27.09.1997 is proved to be legal and valid as per agreement between the parties. The plaintif also did not join for final measurement of the work done.
39. The plaintif failed to prove on record the basis for Rs.3 lacs claim as no document proved on record for execution of work to the extent of Rs.3 lacs. The contract was legally rescinded by the defendants, therefore, the security deposit legally forfeited and plaintif is not entitled to claim of Rs.50 thousand. Further, plaintif failed to prove on record the claim of Rs.1 lac for loss of profit because he delayed the work for about two years. Execution of awarded work was required to be completed within two months. There is no particular details of loss of profit and other damages to CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 25/26 the tune of Rs.1 lac. Therefore, plaintif is not entitled to the same. There is no ground to claim charges for the legal notice and interest of Rs.45,550/- as claimed by the plaintif.
40. On the basis of above observation and discussion, in my considered opinion, plaintif is not entitled to Rs.5 lacs as claimed by him. Hence, issue no.3 is decided against the plaintif and in favour of the defendants.
ISSUE NO.4 (RELIEF)
41. In view of my findings on issue no.3 above, the plaintif is not entitled for claim of Rs.5 lacs as claimed by him. The suit of the plaintif is dismissed.
42. No order as to costs.
43. Decree sheet be prepared accordingly.
44. File be consigned to Record Room.
Announced in the open court today the 25th October, 2017.
(Sanjay Kumar) ADJ-02,West/Delhi 25.10.2017 CS No. 37/17/98 (New No.8333/16) Gurdeep Singh vs. DDA & Anr. 26/26