Delhi High Court - Orders
Ramacivil India Construction Pvt Ltd vs Nbcc India Ltd on 30 November, 2023
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~44 & 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 164/2022 & I.A. 4197-4200/2022, I.A. 6572/2022, I.A.
13386/2022, I.A. 14931-14933/2022
RAMACIVIL INDIA CONSTRUCTION PVT LTD ..... Plaintiff
Through: Mr. Arun Bhardwaj, Senior Advocate
with Mr. Srikanth Varma, Mr.
Nishant Bahuguna and Mr. Abhishek
Sharma, Advocates.
versus
NBCC INDIA LTD ..... Defendant
Through: Mr. Vipul Ganda, Mr. Amooni Raina
and Ms. Abhipsa Mohanty,
Advocates.
+ CS(COMM) 153/2023 & I.A. 22783/2023
NBCC (INDIA) LIMITED ..... Plaintiff
Through: Dr. Arun Mohan, Senior Advocate
with Mr. Vipul Ganda, Mr. Arvind
Bhatt, Ms. Ritika Choubey, Ms.
Swastika Singh, Mr. Amooni Raina,
Ms. Abhipsa Mohanty and Ms.
Snigdha Pal, Advocates.
versus
RAMACIVIL INDIA CONSTRUCTION PRIVATE LIMITED &
ORS. ..... Defendants
Through: Mr. Arun Bhardwaj, Senior Advocate
with Mr. Srikanth Varma, Mr.
Nishant Bahuguna and Mr. Abhishek
Sharma, Advocates for D-1.
Mr. Anurag Kaushik and Mr. Jatin
Arora, Advocates for D-2 to 4.
Mr. Pranjit Bhattacharya and Ms. Raj
Sarit Khare, Advocates for D-5 & 6.
CS(COMM) 164/2022 & CS(COMM) 153/2023 Page 1 of 6
This is a digitally signed order.
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Mr. Sanjay Gupta and Mr. Karanveer
Singh Anand, Advocates for D-9 &
10.
Mr. Keshri Kumar, Advocate for D-
11.
Mr. Vivek Singh and Mr. Ritik
Dwivedi, Advocates for D-14.
Mr. Jayesh Unnikrishnan, Ms.
Vibhooti Malhotra and Mr. Udit
Sharma, Advocates for D-16, 17.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 30.11.2023 I.A. 22868/2023 in CS(COMM) 153/2023(u/S 151 of CPC r/w Section 5 of the Limitation Act, 1963 on behalf of Defendant No. 10 seeking condonation of delay)
1. There is a short delay on the part of Defendant No. 10 in filing the written statement. Since no objection is raised by Dr. Arun Mohan, Senior Counsel for Plaintiff, the present application is allowed. Delay of 35 days in filing the written statement is condoned. Written statement is taken on record. Let replication thereto be filed within four weeks from today.
2. Disposed of.
I.A. 21866/2023 in CS(COMM) 153/2023(u/O VIII Rule 1 r/w Section 151 of CPC on behalf of Defendants No. 5 and 6 for condonation of delay)
3. There is a delay on the part of Defendants No. 5 and 6 in filing the written statement. Since no objection is raised by Dr. Arun Mohan, Senior Counsel for Plaintiff, application is allowed. Delay of 88 days in filing the written statement is condoned. Written statement is taken on record. Let replication thereto be filed within four weeks from today.
CS(COMM) 164/2022 & CS(COMM) 153/2023 Page 2 of 6This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/12/2023 at 20:40:46
4. Disposed of.
I.A. 20236/2023 in CS(COMM) 153/2023(u/S 151 of CPC on behalf of Defendant No. 1 seeking directions to the expert committee)
5. On the 23rd August, 2023, while dealing with application [I.A. 5255/2023], filed by the Plaintiff [NBCC (India) Ltd.] under Order XXVI Rule 10A of CPC, this Court appointed IIT Bombay as the Technical Expert ["the Expert Committee"] to facilitate a comprehensive scientific investigation of the constructed structures which form the core of the ongoing suit ["subject property"]. An extract of Paragraph No. 18 from the aforementioned order is extracted hereunder:
"18. In the circumstances, l.A.5255/2023 is allowed. Accordingly IIT Mumbai, is appointed as an Expert Committee to carry out the six tests, i.e., Test-1 Cement Content; Test-2 crushing strength; Test-3 Corroding Steel Falling Concrete; Test-4 Solidity - Soundness Level; Test-5 Chemical analysis -- Chloride content; and Test-6 Carbonation Depth detailed in pars 8.01 to 8.7.4 of the plaint. Defendants are free to participate and suggest over and above the above six test any further tests which they think should be carried out for the concrete that was cast, but do so without causing any obstruction or delay. All expenses and Expert Commissions fees will be paid directly by the plaintiffs. Copies of their bills and payment receipts will be filed in Court."
6. Mr. Arun Bhardwaj, Senior Counsel representing the Applicant/Defendant No. 1, argues that a thorough investigation should encompass several factors, including the design deficiencies of the structures, to conclusively ascertain the root cause of the structural defects manifest in the subject property. In support of this argument, he cites the report dated 17th December, 2019, authored by the Technical Examiner of the Central Vigilance Commission (CTE Report), along with the studies conducted by IIT Delhi. Furthermore, Mr. Bhardwaj highlights that the CS(COMM) 164/2022 & CS(COMM) 153/2023 Page 3 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/12/2023 at 20:40:47 afore-noted order dated 23rd August, 2023, allows the Defendants the opportunity to propose additional tests, beyond the six already mandated by the Plaintiff which are being undertaken by the Expert Committee. The liberty granted in the said order is also in line with the intention behind appointing the Expert Committee originally, as suggested by the following excerpt from the Plaintiff's afore-noted application [I.A. 5255/2023]:
"5. The Expert Committee will take core samples from across the entire construction, carry out the six tests as detailed in TH-8 of the plaint and also carry out such other and further 'tests' and scientific 'investigations that they deem proper, and then give their detailed test results-or Report-to this Court."
7. Mr. Bhardwaj brings to the Court's attention that the Applicant's request for conducting additional tests was rejected by the Expert Committee, as indicated in their communication dated 4 th October, 2023. The basis for this denial was the Committee's interpretation of their mandate as per the language of the order dated 23rd August, 2023, which they believe restricts the Applicant to only suggesting tests on the 'concrete cast'. This interpretation effectively limits the scope of the Applicant participating in the scientific investigation and suggesting further tests.
8. By way of the present application, the Applicant requests for directions to the Expert Committee to carry out an additional set of six tests and agrees to bear the expenses for the same. These tests, detailed in Paragraph No. 5 of the instant application, are outlined as follows:
"5. ...
1) Proof Checking/ Vetting of Soil Investigation Report of the said Project.
2) Proof Checking/ Vetting of the Design Philosophy, Structural Design in ETABS Model derived from the GFC Drawings of the said Project.
3) Proof check ing of the water proofing methodology done by the previous agency/ adequacy of the water proofing items as per the site CS(COMM) 164/2022 & CS(COMM) 153/2023 Page 4 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/12/2023 at 20:40:47 conditions in the Foundation.
4) To check the effect of poor maintenance on the deterioration of the structure.
Further, the Expert Committee must also ought to carry out following Tests / Investigations confirming following:-
5) Whether the soil testing already done by NBCC prior to finalizing the design of the project was / is as per the IS code requirement?
6) Whether the structural design finalized by the NBCC is in compliance / confirming to the said soil testing report and whether the same is passing all parameters of IS code requirement?"
9. Dr. Arun Mohan, Senior Counsel for the Plaintiff, does not object to the Expert Committee proceeding with conducting the tests suggested by the Applicant. However, he emphasises that any test conducted should, in the assessment of the Expert Committee, be relevant for the purpose of complying with the order dated 23rd August, 2023.
10. The primary objective of constituting the Expert Committee is to aid this Court by elucidating the underlying causes of the structural defects observed in the subject property. Given this context, the Court deems it necessary to broaden the present ambit of investigation. Such expansion is vital to comprehensively address the central issues and disputes of this case. It is thus appropriate to include the additional aspects proposed by the Applicant in the scientific investigation. This expanded scope will ensure a more thorough and informed adjudication, aligning with the principles of justice and comprehensive fact-finding. Moreover, it is noted that the Applicant has committed to bearing the full cost of these supplementary tests.
11. Accordingly, it is directed that the Expert Committee of IIT Bombay shall also carry out the tests/checks specified in Paragraph No. 5 of the instant application (reproduced above). The costs for additional tests CS(COMM) 164/2022 & CS(COMM) 153/2023 Page 5 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/12/2023 at 20:40:47 suggested by the Applicant shall be indicated by the Expert Committee to the Applicant, and shall be borne by them exclusively. The Expert Committee should then submit a comprehensive report, which should not only detail the outcomes of all the tests conducted, but also provide a thorough analysis of the factors contributing to the structural defects in the subject property.
12. The Expert Committee is requested to carry out the process expeditiously. Considering the fact that additional tests also would be required to be conducted, the Expert Committee is requested to submit its report within four months from today.
13. With the above directions, the application is disposed of.
I.A. 22406/2023 in CS(COMM) 153/2023 (u/O VII Rule 11 of CPC on behalf of Defendants No. 5 and 6 seeking rejection of the plaint)
14. Issue notice. Counsel for non-Applicants accept notice.
15. Reply to the present application, if any, be filed within four weeks from today. Rejoinder thereto, if any, be filed within two weeks thereafter.
16. Re-notify on 02nd April, 2024.
CS(COMM) 164/2022 & I.A. 4197-4200/2022, I.A. 6572/2022, I.A. 13386/2022, I.A. 14931-14933/2022 CS(COMM) 153/2023 & I.A. 22783/2023
17. Re-notify on 02nd April, 2024.
SANJEEV NARULA, J NOVEMBER 30, 2023 d.negi CS(COMM) 164/2022 & CS(COMM) 153/2023 Page 6 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/12/2023 at 20:40:47