Delhi District Court
M/S Verma Construction Co vs Delhi Development Authority on 30 July, 2016
IN THE COURT OF SHRI KULDEEP NARAYAN : ADDITIONAL
DISTRICT JUDGE-05 (WEST) TIS HAZARI COURTS, DELHI
CS No.36/13/1996 (New CS No.7974/2016)
Unique ID No.02401C5120462004
M/s Verma Construction Co.
WZ-42-A, Meenakshi Garden
New Delhi-110018
Through Mr Naveen Kumar Verma, Partner
....... Plaintiff
V
Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, Behind INA Market
New Delhi-110023. ......Defendant
Date of Institution : 15.04.1996
Date of reserving Judgment : 25.07.2016
Date of pronouncement : 30.07.2016
JUDGMENT
Plaintiff filed the present suit for recovery of Rs.5,00,000/- lacs against the defendant alleging failure in due discharge of the obligations on the part of the defendant resulting in financial losses caused to the plaintiff. The defendant, while denying the allegations, stated that the plaintiff was paid in terms of the agreement and nothing remained due and payable to the plaintiff.
As per the plaint, the relevant facts are that the plaintiff i.e. M/s Verma Construction Co. was a registered partnership firm having its registered office at WZ-42A Meenakshi Garden, New Delhi-110018. It was also a registered Government contractor having specialization in steel CS NO. 36/13/96 (New- 7974/2016 ) Page 1/26 fabrications and work of Civil Engineering nature. The Executive Engineer, Rohini Project Division No.8, Rohini Complex, Delhi Development Authority (DDA), had invited the percentage rates sealed tenders for the work of "Construction of Convenient Shopping Centre No. 3 in Sector XI, Rohini on behalf of the Chairman, DDA. The plaintiff firm being a registered contractor of the defendant also requested for the issuance of tender form to offer its rates and offered the lowest rates amongst all the tenderer-contractor. On a negotiation to reduce the original offer rates, the plaintiff firm obliged the defendant by reducing the rates to 63.25% vide its letter dated 09.08.1991. Since the offered rates of the plaintiff firm were the lowest, the Executive Engineer, Rohini, Project Division No.8 accepted the offer of the plaintiff firm vide letter No. F.50(285)/A/RPD-8/DDA/90-91 1238 dated 21.08.1991. A formal agreement bearing no.13/EE/RPD- 8/DDA/91-92 (for short, "the Agreement") containing all the vital relevant facts and the vital dates of the work, as detailed in para-3 of the plaint, was executed between the parties.
Further, due to numberless breaches committed by the defendant, the plaintiff firm was prevented from fulfilling its obligation to complete the work within the stipulated time of eight months. In para-4 of the plaint, various obligations on the part of the defendant have been detailed under the following heads:
(i) Provision of both Architectural and Structural drawings: As per the Agreement, the plaintiff was assured that all sets of drawings would be provided soon after the award of work as it was not possible to start the work without the foundation drawings. Non- provision of drawings considerable delayed the work.
(ii) Non provision of stipulated material: Defendant was obliged to provide the plaintiff firm with cement, steel, S.C.I G.I pipes etc, CS NO. 36/13/96 (New- 7974/2016 ) Page 2/26 however, none of the material was provided as per requirement, causing delay in the completion of assigned work.
(iii)Non provision of complete site to execute the work: Defendant failed in providing the possession of entire site as per the Agreement to the plaintiff firm, which caused non-completion of work by the plaintiff firm.
(iv) Non release of payment in terms of the Agreement:
Defendant had assured to pay installments at a specified stage, which it failed to oblige and committed breach causing financial impossibilities for the plaintiff firm.
(v) Non communication of decision in terms of the Agreement:
As agreed, defendant failed to provide details of special knowledge, instructions and guidance to the plaintiff firm as and when required and thereby committing breach by violating clause-11 of the Agreement.
It was also alleged that in order to pay less to the plaintiff firm, the defendant deliberately reduced the rates of various items and committed breach of terms as stipulated in clause no.12 of the Agreement. The defendant withheld and deducted huge amount. Further, on receipt of notice under clause no. 7, the defendant made part payment, but rest of the amount remained unpaid. The plaintiff also served the defendant with notice on 27.07.1995 under Section 80 CPC, calling upon the defendant to clear all the due payments which was refused by the defendant vide its letter no.F.50(285)/A/RPD-8/DDA/90-91/612 dated 25.09.1995. Hence, the plaintiff firm filed the present suit for the following claims:
Claim no.1- A sum of Rs. 7000/- for Quality Control. Claim No.2- A Sum of Rs. 40,000/- for non-sanctioning of deviation occurred.CS NO. 36/13/96 (New- 7974/2016 ) Page 3/26
Claim No.3- A sum of Rs.34,914.87 for straightening and cutting of steel.
Claim No.4- A sum of Rs.3877.50, towards the difference of rates of hire charges of road roller to be issued by the defendant. Claim No.5- A sum of Rs. 25,586/- for less paid in item of the Grit Wash Plaster.
Claim No. 6- A sum of Rs.35,406/- towards loss for non-use of shuttering fabricated by plaintiff firm due to non-laying of conducting.
Claim no.7- A sum of Rs.48,879.00 as interest @ 24% per annum for all delayed payment as detailed in annexure-A. Claim No.8- A sum of Rs. 1,47,939.00 under clause 12A of the Agreement envisaged in annexure 'B'.
Claim No.9- A sum of Rs.1,22,800.00 as extra rates for the work executed beyond the stipulated period and also for the losses caused due to unproductive salaried staff and idle labour as detailed in annexure C Claim No.10- A sum of Rs.83,952.00 as interest @ 24% per annum on Rs.4,66,402/- from the date of notice for a period of nine months.
2. Defendant/DDA contested the suit and filed written statement, taking preliminary objections that the suit was not maintainable as mandatory notice under Section 53B of the Delhi Development Authority Act, 1957 ( for short "the DDA Act") had not been served upon it and the suit was bad for mis-joinder and non-joinder of necessary parties. It was denied that the plaintiff reduced the rates. The plaintiff offered the rates with terms and conditions of the tender and therefore, it was bound by the CS NO. 36/13/96 (New- 7974/2016 ) Page 4/26 offer it made. Further, under clause 8 of the Agreement, it was the duty of the plaintiff to submit the bill each month on or before the date fixed by the Engineer-in-Charge which the plaintiff did not submit. It was also stated that plaintiff was paid correctly under clause-12 and 12-A of the Agreement. All the claims of the plaintiff firm were stated to be baseless and, hence, denied. Other pleas of the plaintiff were denied parawise. Dismissal of the suit was prayed for.
3. In the replication, the plaintiff firm controverted all the pleas taken by the defendant and reiterated its own pleas.
4. As per the pleadings of the parties, the following issues were framed:
1. Whether the plaintiff company is registered partnership firm and suit has been filed by the registered partner?
2. Whether notice u/Sec.53-B of the D.D Act has been served upon the deft. If not, to what effect?
3. Whether suit is bad for non-joinder of necessary party?
4. Whether the amount recovered from the contractor by the deft./DDA is illegal?
5. What amount if any the plaintiff is entitled to recover?
6. Relief.
5. In support of its case, the plaintiff examined Shri Naveen Verma (PW-1) who was one of the partners in plaintiff firm.
6. In defence, the defendant/DDA got examined Shri S.C Bajaj-
CS NO. 36/13/96 (New- 7974/2016 ) Page 5/26Assistant Engineer, DDA (DW-1) and Shri Shashikant Gupta-Executive Engineer, Sector-3, Rohini (DW-2).
7. I heard the arguments advanced by Shri B. M Sehgal, Ld. counsel for the plaintiff and Shri P.K Aggarwal, Ld. counsel for the defendant/DDA. Having heard the submissions and perused the entire material available on record, my issue-wise findings are as under:-
8. Issue no.1 "Whether the plaintiff company is registered partnership firm and suit has been filed by the registered partner?"
9. The plaintiff got examined Shri Naveen Verma (PW.1) who deposed that the plaintiff was a partnership firm. He also relied upon income tax clearance certificate Ex.PW.1/1 wherein names of the partners of the plaintiff were mentioned. He also relied on Ex.PW.1/2 which is an office order No. 13/94,dated 11.2.1994 issued by the defendant whereby the enlistment of the plaintiff in Class-II (BNR) was renewed. The office order Ex.PW.1/2 also mentions the names of three partners of the plaintiff firm. The document Ex.PW.1/2 has not been disputed by the defendant whereby the plaintiff was registered as contractor in category Class-II (BNR).
During his cross-examination, PW.1 categorically stated that the plaintiff was a partnership firm and he was one of the partners registered with DDA. PW.1 also stated to have signed the plaint. He further referred to letters Ex.PW.1/4, Ex.PW.1/5 and Ex.PW.1/6 whereby the defendant was informed about the names of the partners of the plaintiff firm. The testimony of PW.1 in this regard could not be rebutted by the defendant. Though the plaintiff did not file any CS NO. 36/13/96 (New- 7974/2016 ) Page 6/26 document after obtaining from the office of Registrar of Firms to show that it is a registered partnership firm, however, in view of the un- rebutted testimony of PW.1 and admitted documents, especially, Ex.PW.1/2 whereby the plaintiff was registered as contractor by the defendant itself, there is no doubt that the plaintiff was a registered partnership firm and the suit was filed by its registered partner. This issue is accordingly decided in favour of the plaintiff.
Issue no.2
"Whether notice u/Sec.53-B of the D.D Act has
been served upon the deft. If not, to what
effect?"
10 To decide this issue, a reference is made to the Section 53-B
of the DDA Act which is reproduced as under:
53 B. Notice to be given of suits - (1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the Authority or any member or any officer or other employee of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made thereunder until the expiration of two months after notice in writing has been, in the case of the Authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered.
(2) No suit such as is described in sub-section (1) shall, unless it is a suit for recovery of immovable property or for a declaration of title thereto, be instituted after the expirty of six months from the date on which CS NO. 36/13/96 (New- 7974/2016 ) Page 7/26 the cause of action arises.
(3) Nothing contained in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.] 11 As per the plaintiff's claim, the notice Ex.PW.1/61-A was issued to the defendant vide postal receipt Ex.PW.1/62 before filing the suit which was replied by the defendant vide reply Ex.PW.1/63. During his examination-in-chief, PW.1 also stated that the notice Ex.PW.1/61-A was served upon the defendant with its acknowledgment receipt Ex.PW.1/62. A perusal of the notice Ex.PW.1/61-A reveals that the same is a notice under Section 80 CPC, not under Section 53-B DDA Act. Further, the postal receipt Ex.PW.1/62 pertains to the period of May,1994, whereas the notice Ex.PW.1/61-A is dated 27.7.1995 which goes to indicate that the postal receipt Ex.PW.1/62 cannot be with reference to the notice Ex.PW.1/61-A. Furthermore, a notice under Section 53-B DDA Act is to be given in respect of any act done or purporting to have been done in pursuance of the Act or any rule or regulation made thereunder and no suit shall be instituted against the Authority or any member thereof or any of its officer or other employees etc until expiration of two months after such notice in writing has been left at its office. It is also stipulated in categorical terms under Section 53-B (2) of the DDA Act, that no suit as described in sub-section (1) shall be instituted after the expiry of six months from the date on which the cause of action arises unless it is a suit for recovery of immovable property or for a declaration of title thereto.
CS NO. 36/13/96 (New- 7974/2016 ) Page 8/2612 Similarly, sub-section (3) stipulates that the requirement of notice under Section 53-B of the DDA Act shall not apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by giving of any such notice.
13 The plaintiff filed the present suit for recovery of Rs.5,00,000/- and accordingly the concession made in sub-section (2) and (3) of Section 53-B of the DDA Act is not available to the plaintiff. It was therefore, incumbent upon the plaintiff to issue a notice under Section 53-B of DDA Act to the defendant and to file a suit after expiration of two months after the notice was left at its office. Instead, the plaintiff chose to issue notice Ex.PW.1/61-A under Section 80 CPC dated 27.7.1995 which was replied by the defendant vide reply Ex.PW.1/63 dated 25.9.1995. The plaintiff filed the suit on 15.4.1996 whereas sub-section (2) of Section 53-B of the DDA Act stipulates in clear terms that no suit shall be instituted after expiry of six months from the date on which the cause of action arose. Therefore, even if notice Ex.PW.1/61-A is treated as a notice under Section 53-B of the DDA Act, the present suit should have been filed not later then expiry of six months from the date of accrual of cause of action. As observed earlier, the postal receipt Ex.PW.1/62 pertaining to period of May,1994 cannot be taken with reference to notice Ex.PW.1/61-A which is dated 27.7.1995 It is clear that the present suit was filed after expiry of six months from the date of accrual of cause of action as per notice Ex.PW.1/61-A and is clearly barred under sub-section (2) of Section 53-B the DDA Act.
14 In view of the above-discussed facts and circumstances, I CS NO. 36/13/96 (New- 7974/2016 ) Page 9/26 am of the considered opinion that the notice under Section 80 CPC cannot take precedence or substitute the notice under Section 53-B of the DDA Act which is a mandatory requirement for filing the suit against the defendant. The suit filed on 15.4.1996 is also barred under Section 53-B (2) of the DDA Act. This issue is accordingly decided against the plaintiff.
Issue No.3 "Whether suit is bad for non-joinder of necessary party?"
15 Though the defendant had taken the objection regarding non- joinder of necessary party while filing its written statement, the defendant did not lead any evidence in this regard. Rather, during the course of arguments, it was fairly conceded by Ld. Counsel for the defendant that this objection was not being pressed by the defendnat. In the absence of any evidence to this effect, it is held that the suit is not bad for non-joinder of necessary party. The issue is accordingly decided against the defendant.
Issue no.4 & 5.
Whether the amount recovered from the contractor by the deft./DDA is illegal?
& What amount if any the plaintiff is entitled to recover?
16 As both these issues are interlinked, they are being decided together. In the present suit, the plaintiff has claimed the suit amount as per 10 claims which are taken up one-by-one.
CS NO. 36/13/96 (New- 7974/2016 ) Page 10/26Claim No.1 17 The plaintiff claimed a sum of Rs.7,000/- withheld for the alleged quality control observation. Admittedly, the quality control cell of the defendant visited the site in 1992 and pointed out certain defects. It is claimed by the plaintiff that those defects were duly rectified by plaintiff before the actual date of completion of the project on 24.5.1993. The plaintiff relied on Measurement Book No.07255 Ex.PW.1/54 in this regard. The plaintiff also notified the defendant about the same vide notice Ex.PW.1/61-A. On the other hand, the defendant examined Shri S.C Bajaj (DW.1), who deposed that the aforesaid amount of Rs.7,000/- was withheld due to bad workmanship.
Further, Shri Shashikant (DW.2) also deposed that after the final observations of the quality control cell were received, a sum of Rs.4865/- was withheld on account of bad workmanship. Ld. Counsel for the plaintiff did not ask any question during the cross-examination of DW.2 regarding withhelding of Rs.4865/-. DW.2 further clarified that the recoveries made from the plaintiff was with regard to bad workmanship and not with regard to deviation quantities. He also stated that deviation was prepared after perusal of the quality control inspection and CTE inspection. Further, Measurement Book Ex.PW.1/54 relied on by the plaintiff also reveals that the completion certificate issued by the defendant was subject to the measurement being recorded and quality checked by the competent authority subject to fixing of glass-panes, fixing fittings and fixtures, final polishing, cleaning kota stone and mosaic, polishing and cleaning of toilets, SGI, CGI pipes and taps etc which itself indicate that there were certain deficiencies as observed by quality control department of the CS NO. 36/13/96 (New- 7974/2016 ) Page 11/26 defendant which remained to be rectified by the plaintiff. Since the testimony of DW.2 with regard to withhelding of Rs.4865/- could not be rebutted by the Ld. Counsel for the plaintiff in any material terms, I have no reason not to believe the same. Accordingly, in my considered opinion, the plaintiff could not establish its claim of Rs.7,000/- which were withheld for quality control observations and therefore, is not entitled for the same.
Claim No.2 18 The plaintiff claimed a sum of Rs.40,000/- for non- sanctioning of deviation occurred in the schedule of quantities of work to be executed. As per the contentions of the defendant, the amount of Rs.40,000/- was withheld as per Clause 12 (A) of the Agreement Ex.PW.1/6 pending finalisation of the deviation statement by the competent authority. As per the testimony of Shri Shashi Kant (DW.2), the competent authority i.e Chief Engineer (R) finalised the deviation statement Ex.DW.1/14 during the pendency of the suit. DW.2 also stated that after approval of the deviation statement, it was calculated that a sum of Rs. 52,03,600/- was payable to the plaintiff, whereas sum of Rs.52,71,871/- had been paid by the defendant. Therefore, the total amount recoverable from the plaintiff was Rs.68,271/- towards difference between the final bill and the deviation statement. A sum of Rs.40,000/- was withheld as per the final bill on account of deviation and a sum of Rs.4865/- was withheld on account of bad workmanship which makes a sum of Rs.23,406/- to be recovered from the plaintiff.
19 DW.2 was cross-examined by Ld. Counsel for the plaintiff CS NO. 36/13/96 (New- 7974/2016 ) Page 12/26 wherein the approval of the deviation statement was doubted by the Ld. Counsel for the plaintiff as the same was to be done by the Executive Engineer concerned as per the Agreement Ex.PW.1/6. As per the testimony of DW.2, the deviation statement was prepared after perusal of Quality Control inspection report and CTE ( Chief Technical Examiner) inspection. As per the contentions of the defendant the aforesaid sum of Rs.40,000/- was withheld in terms of Clause 12-A of the Agreement Ex.PW.1/6. The testimony of DW.2 could not be rebutted in any material terms so as to indicate that withholding sum of Rs.40,000/- pending finalization of deviation statement was unjustified. The plaintiff could not dislodge the claim of the defendant regarding recovery of Rs.68,721/- towards difference between final bill and the deviation statement. The sum of Rs.40,000 was accordingly, rightly adjusted by the defendant in the amount of Rs.68,721/- to be recovered from the plaintiff. The plaintiff is, therefore, not entitled to claim the same.
Claim No.3 20 The plaintiff claimed a sum of Rs.34,914.87 paisa for straightening and cutting of steel. As per the testimony of PW.1, the aforesaid claim was raised vide letters Ex.PW.1/23 and Ex.PW.1/23-A. The aforesaid claim pertained to the item no.3.11 of the Agreement Ex.PW.1/6 whereby the plaintiff was directed to perform three elements namely (I) bending (ii) binding and (iii) placing in position the steel. As per the plaintiff's claim the elements of straightening and cutting of steel was not incorporated in the Agreement Ex.PW.1/6, but both the elements were executed and the defendant had taken the benefit thereof. PW.1 further deposed that the analysis of rates vide CS NO. 36/13/96 (New- 7974/2016 ) Page 13/26 letter Ex.PW.1/23-A was not denied by the defendant vide its reply Ex.PW.1/63 which was replied by the defendant in response to a letter Ex.PW.1/61-A sent by the plaintiff. The plaintiff, therefore, relied upon Section 70 of the Indian Contract Act, 1872 to claim the aforesaid amount.
21 A perusal of document Ex.PW.1/61-A reveals that the same is a notice under Section 80 CPC sent by the plaintiff to the defendant which was replied by the defendant vide reply Ex.PW.1/63. As per reply Ex.PW.1/63, the claim towards straightening and cutting of steel was clearly denied by the defendant stating, inter alia, that the plaintiff was required to place the reinforcement as per the structural drawing and nothing was to be paid extra for the involvement of the minor operation like cutting, bending and straightening. It was also stated that as a matter of common understanding the reinforcement could not be placed as per the drawing until and unless it was bent to the required size. Shri S.C Bajaj (DW.1) had also deposed that the element of straightening and cutting was included in item No.3.11 itself.
During the arguments, Ld. Counsel for the defendant also placed reliance on M/s Anant Bajaj Agencies V. DDA & Ors, 2005, IV, AD (Delhi),197 to show that such type of claim was also disallowed by the Hon'ble High Court.
22 Having heard the submissions in this regard and perused the record, I am satisfied with the contentions of Ld. Counsel for the defendant.
23 It is clear from the record that extra payment for straightening CS NO. 36/13/96 (New- 7974/2016 ) Page 14/26 and cutting of steel was never agreed by the defendant. Though the plaintiff claimed the amount on this account vide letter Ex.PW.1/23 and Ex.PW.1/23-A and also claimed the same in the notice under Section 80 CPC Ex.PW.1/61-A, the defendant never acceded to such demand and categorically denied the same vide its reply Ex.PW.1/63. Moreover, in Anant Bajaj Agencies (supra) case, the Hon'ble High Court referred to another decision in Wee Aar Constructive Builders case wherein the Hon'ble Single Judge had held that since the binding and placing in position the steel for RCC works was included in the contract, said work necessarily required the process of straightening before cutting and therefore, it was held that no claim for extra was maintainable on the said account. It was also not pointed out in the evidence that the contractor had written to DDA that he would be having a claim as an extra item for straightening of bent up steel bars issued in coils. Accordingly, the petitioner's claim was disallowed being contrary to item 3.10 schedule of quantities.
24 In the present suit, the case of the defendant as pleaded is squarely covered within ratio of Anant Raj Agencies (supra) case. In the present case also the plaintiff, though had sent a letter Ex.PW.1/23 and Ex.PW.1/23-A to the defendant to claim the amount on account of straightening and cutting of the steel, the fact remained that the same was never acceded to by the defendant. Rather, the defendant categorically denied the aforesaid claim while replying the notice vide reply Ex.PW.1/63 which goes to indicate that there never was an agreement between the plaintiff and the defendant on the said account. The reliance placed by Ld. Counsel for the plaintiff on Section 70 of the Indian Contract Act, 1872 is wholly misplaced. Accordingly, the CS NO. 36/13/96 (New- 7974/2016 ) Page 15/26 plaintiff is not entitled to claim sum of Rs..34,914.87 paisa towards straightening and cutting of the steel. The claim No.3 is declined.
Claim No.4 25 The plaintiff claimed a sum of Rs.3,877.50 towards difference in the rates of the hire charges of road roller which was not issued by the defendant and the plaintiff had to acquire it from the open market. Admittedly, the defendant working road roller was not available in its mechanical and electrical workshop and therefore, the plaintiff was allowed to use the private road roller on its request.
In his cross-examination, Shri S.C. Bajaj (DW.1) also stated that the plaintiff never protested for lesser rates paid to him in this regard. As per the plaintiff's claim, the defendant was under obligation to issue road roller at Rs.235/- per day as hiring charges, whereas the plaintiff procured the road roller and paid hire charges of Rs.450/- per day. The amount paid to the plaintiff was only Rs. 235/- per day, whereas the difference in the hire charges were not paid by the defendant.
PW.1 also deposed that the request vide letter dated 29.1.1993 Ex.PW.1/30 was also made in this regard. However, a perusal of letter dated 29.1.1993 Ex.PW.1/30 reveals that the same does not pertain to the aforesaid claim of the plaintiff and there is no indication about hiring of any road roller by the plaintiff. PW.1 in his cross- examination conducted on 5.9.2011 also admitted in categorical terms that there was no agreement whereby the defendant was bound to pay for the road roller arranged from the outside. The plaintiff also failed to lead any evidence to establish that he had, in fact, paid hire charges of Rs.450/- per day for the road roller and the defendant was under CS NO. 36/13/96 (New- 7974/2016 ) Page 16/26
obligation to pay the difference in the hire charges. Accordingly, the plaintiff is not entitled to claim an amount of 3,877.50 towards difference in the rates of the hire charges of road roller and the same is declined.Claim No. 5
26 Under claim no.5, the plaintiff claimed a sum of Rs.25,586/- for the paid less in item of grit wash plaster. PW.1 in his examination-in-chief deposed about the aforesaid claim while stating that vide letter Ex.PW.1/29, the defendant was informed about increase in the rate of stone grid which would affect all the items including that of grit wash. PW.1 further claimed the extra rates for grit wash vide letter Ex.PW.1/37 stating, inter alia, that the defendant had paid the agreed upon rates @ Rs.140.34 per square metre, whereas proposal to pay rates @ Rs.125.58 per square metre which was Rs.12.76 less from the agreed upon rates was not acceptable. The afore-mentioned rates were also analysed by the plaintiff vide letter Ex.PW.1/61. The plaintiff also claimed extra rates @ Rs.145.90 per square metre vide its letter Ex.PW.1/60 stating that the defendant had paid Rs.140.30 per square metre, whereas in the final bill the rates were reduced to Rs.127.58 per square metre. The plaintiff also claimed to execute the total quantity of work to be 2005.14 per square metre and accordingly claimed a sum of Rs. 12.76 per square metre in the afore-mentioned claim.
There is no evidence available on record about any agreed upon rates @ Rs.140.34 per square metre as claimed by the plaintiff. Vide letter Ex.PW.1/60, the plaintiff itself had sought approval of rates @ Rs.145.90 per square metre and also filed analysis of rates vide CS NO. 36/13/96 (New- 7974/2016 ) Page 17/26 letter Ex.PW.1/61. Further, there is no evidence to show that the aforesaid rates were approved by the defendant.
27 Shri S.C. Bajaj (DW.1) deposed that only the provisional and on account payment were released to the plaintiff in 10th and 11th running bills which were corrected in the final bill to Rs. 127. 58 per square metre. He further stated that the final rates as approved by the competent authority were worked out and paid in the final bill which was duly accepted by the plaintiff. DW.1 during his cross-examination also stated that there was no provision in the agreement for the reduction or deduction of agreed upon rates and for the approval of extra or reduced rates.
The Superintending Engineer and Chief Engineer were to be the competent authority to decide the rates. As per Clause-29 of the Agreement Ex.PW.1/6, DDA would not be entitled to recover any sum of rupees overpaid nor the contractor would be entitled to any payment in any sum paid short, where such payment has been agreed upon between the Chief Engineer/Executive Engineer on the one hand or the contractor on the other hand. Therefore, it is clear that during the execution of work, the plaintiff was paid the provisional rates which were corrected in the final bill Ex.PW.1/D-4 to Rs.127.50 per square metre. The plaintiff failed to establish that there were any agreed upon rates which were not paid by the defendant. The contention on the part of the plaintiff that the provisional rates were, in fact, the agreed upon rates does not appeal to common sense and therefore this contention is devoid of any merit. Accordingly, the plaintiff is not entitled to claim a sum of Rs.25,586/- for the paid less in items of grit wash plastering. This claim is also declined.
CS NO. 36/13/96 (New- 7974/2016 ) Page 18/26Claim No.6.
28 Under claim no.6, the plaintiff claimed a sum of Rs.35,406/- for non-use of shuttering due to non-laying of conduit pipes by the electrical contractor of the defendant.
As per the testimony of PW.1, the plaintiff had laid shuttering and the job of conduit was to be performed thereafter. The defendant awarded the work of electrification of the shopping centre to another contractor and thereby delayed and failed to co-ordinate with other agencies to carry out the conduiting so as to facilitate the plaintiff to carry out the reinforcement work. PW.1 further alleged that due to non-laying of conduit pipes the relying plates, wooden pallcos, planks, supports and ballies remained un-used at the site and the plaintiff had to pay hire charges for it. The plaintiff claimed the hire charges vide letter Ex.PW.1/58 for a total delay of 84 days @ Rs.241.50 per day. The plaintiff relied upon a number of letters Ex.PW.1/45, Ex.PW.1/48, Ex.PW.1/50, Ex.PW.1/52, Ex.PW.1/53, Ex.PW.1/55, Ex.PW.1/57, Ex.PW.1/58 and Ex.PW.1/61-A in this regard as well as hindrance register Ex.PW.1/55 whereby the non-laying of conduit pipes was also admitted by the defendant. Though the plaintiff claimed that there was delay of 84 days and it had to pay hire charges @ Rs.241.50 per day due to non-laying of conduit pipes, the fact remained that not a single proof of such payment of hire charges could be filed by the plaintiff. The reliance placed on the letter Ex.PW.1/58 in this regard is not sufficient to establish that the hire charges mentioned therein were also paid by the plaintiff.
Further, as per the testimony of Shri S.C Bajaj (DW.1), there was a delay of 58 days and not 84 days as claimed by the plaintiff as CS NO. 36/13/96 (New- 7974/2016 ) Page 19/26 per the hindrance register Ex.PW.1/55 on account of which the extension of time was granted to the plaintiff for all those hindrances without levy of compensation. It is note-worthy that the plaintiff also did not lead any evidence to show that the delay of 84 days had occurred and not of 58 days as deposed by DW.1 as mentioned in the hindrance register Ex.PW.1/55. The plaintiff also could not establish under which clause of the agreement Ex.PW.1/6, the claimed amount was admissible. The extension of time availed by the plaintiff on account of hindrance has not been disputed by the plaintiff.
29 Under these facts and circumstances, in my considered opinion, the claim of Rs. 35,406/- on account of delay caused due to non-laying of conduit pipes which the plaintiff claimed to have incurred on hire charges is not justified and is accordingly declined.
Claim No.7 30 Under claim no.7, the plaintiff claimed a sum of Rs.48,879/- towards interest @24% per annum on all delayed payments. As per the plaintiff's version, as per clause -7 of the Agreement Ex.PW.1/6, whenever a bill is prepared, the defendant was under an obligation to pay it within tenth working day after the submission of the bill. As per the testimony of PW.1, the claim of interest for the delayed payment made which is detailed in annexure-A was notified to the defendant vide letter Ex.PW.1/30, Ex.PW.1/33 and Ex.PW.1/34. PW.1 also relied on letters Ex.PW.1/64,37,38,40 and 61 in this regard.
On the other hand, the defendant contended that the plaintiff was under an obligation under clause 8 of the Agreement Ex.PW.1/6 to CS NO. 36/13/96 (New- 7974/2016 ) Page 20/26 submit the monthly bills, but the plaintiff miserably failed to do so and under the circumstances the defendant was compelled to prepare the bills. The defendant also contended that since the plaintiff was not entitled to receive any amount, there was no question of payment of interest.
31 A perusal of clause-7 of the Agreement Ex.PW.1/6 reveals that the same pertains to the payment of intermediate certificate to be regarded as advances. It is also stipulated therein that in case if work estimated to cost more than five thousand, the contractor shall, on submitting the bill be entitled to receive a monthly payment proportionate to the part thereof then executed to the satisfaction of the Engineer-in-Charge, whose certificate of the sum so payable shall be final and conclusive against the contractor. Further, all such intermediate payment shall be regarded as payment by way of advances against the final bill, not as payment for work actually done or completed. It is further stipulated that the final bill shall be submitted by contractor within one month of the date fixed for completion of the work or the date of certificate of completion furnished by Engineer-in-Charge and payment shall be made within three months, if the amount of the contract plus that of additional items is upto Rs.2 lacs and in 6 months if the same exceeded Rs.2 lacs on the submission of such bill. It is, therefore, clear that there is no stipulation under clause-7 of the Agreement Ex.PW.1/6 to the effect that whenever a bill is prepared, the defendant was under an obligation to pay it within tenth working day after the submission of the bill and the contention of the plaintiff in this regard are incorrect.
On the other hand, as per clause-8 of the Agreement Ex.PW.1/6, CS NO. 36/13/96 (New- 7974/2016 ) Page 21/26 the bill shall be submitted by the contractor each month on or before the date fixed by the Engineer-in-Charge for all work executed in the previous month and the Engineer-in-Charge shall take requisite measurement for the purpose of having the same verified and the claim adjusted as far as possible before expiry of 10 days before presentation of the bill. It is further stipulated that if the contractor does not submit the bill as afore-said, the Engineer-in-Charge may depute within 7 days of the date fixed as aforesaid, a subordinate to measure up the said work in the presence of the contractor whose counter signature to the measurement list will be sufficient warrant and the Engineer-in-Charge may prepare a bill from such list.
During his cross-examination, PW.1 also admitted that the plaintiff failed to submit monthly bills and the payment was received by the plaintiff without any objection. It is also evident that the plaintiff miserably failed to establish if there was any delayed payment on any account. With regard to the afore-mentioned letters sent by the plaintiff to the defendant, suffice it to say that mere sending of letters/notices is not sufficient to show that there was a delayed payment on the part of the defendant. There is not a single evidence available on record to substantiate the delayed payment as per annexure-A of the plaint. Even the plaintiff failed to show any basis to claim interest @ 24% p.a claimed by it.
32 Under these circumstances, I am of the considered opinion that the plaintiff is not entitled to claim a sum of Rs.48,879/- on account of delayed payment. This claim is also declined.
Claim No.8- 33 Under this claim, the plaintiff claimed a sum of CS NO. 36/13/96 (New- 7974/2016 ) Page 22/26 Rs.1,47,939/- under clause 12-A of the Agreement Ex.PW.1/6. As per the testimony of PW.1, the extra rates in the items which crossed the deviation limits was claimed under clause-12-A of the Agreement Ex.PW.1/6 vide letter Ex.PW.1/15 and Ex.PW.1/23. Analysis of the same was marked in Ex.PW.1/23-A. The plaintiff also sent a letter Ex.PW.1/60 alongwith analysis of rates Ex.PW.1/61. The plaintiff contended that since the work executed crossed the deviation limit, in terms of the Agreement Ex.PW.1/6 and as per CPWD manual, the market rates were payable to the plaintiff.
As per clause-12 of the Agreement Ex.PW.1/6, in case of contract substituted items or additional items resulting in exceeding the limits laid down in sub-clause(VI) of clause -12, the contractor shall claim revision of rates supported by proper analysis on receipt of such items or quantities in excess of the deviation limit, not- withstanding the fact that the rates for such items exist in the tender for the main work or can be derived in accordance with the provision of sub-clause (ii) of the preceding clause-12 and the Engineer-in-Charge may revise such rates having regard to the prevailing market rates. It is therefore, clear that any such claim was required to be revised by the Engineer-in-Charge and the plaintiff was entitled to be paid in accordance with rates so revised. There is not an iota of evidence led by the plaintiff, if in pursuance of aforesaid letters, the defendant ever revised rates in terms of clause-12 of the Agreement Ex.PW.1/6. Therefore, there is no justification given by the plaintiff to claim the sum of Rs.1,47,939/-. This claim is also denied.
Claim No.9 34 Under claim no.9, the plaintiff claimed a sum of CS NO. 36/13/96 (New- 7974/2016 ) Page 23/26 Rs.1,22,800/- for the work executed beyond the stipulated date of completion. As per the plaintiff's contentions, some losses were caused due to un-productiveness of the salaried staff like Engineer, Supervisors and ward and watch and idle labour.
In support of the aforesaid claim, the PW.1 deposed regarding the provision of architectural and structural drawings that there was a term in the Agreement Ex.PW.1/6 whereby it was assured that the defendant shall provide the drawings lying in the Division which were not provided. The said clause was marked as "Y" in the Agreement Ex.PW.1/6. A number of letters Ex.PW.1/7, Ex.PW.1/16, Ex.PW.1/23 etc were also written to the defendants. PW.1 further deposed that the hindrance register Ex.PW.1/55 and site order book Ex.PW.1/56 also mention delay in providing drawings. The letter Ex.PW.1/68 was also issued in this regard to the Chief Engineer. Further, with regard to the provision stipulated for the material like cement, steel, CI, GI pipes, the record of the material provided and its daily use was to be recorded by the defendant in material site register regarding which the plaintiff has also written a number of letters to the defendant including letters Ex.PW.1/10 to Ex.PW.19 and Ex.PW.1/23 to Ex.PW.1/26, Ex.PW.1/28 and Ex.PW.1/29. PW.1 further deposed about non-provision of complete site, delay in payment of monthly bills and extra hire charges regarding road roller incurred by the plaintiff and claiming of damages during the execution of the work on account of alleged breaches committed by the plaintiff.
35 As far as the present claim is concerned, it is evident from the record that the plaintiff merely relied on a number of letters issued/written to the defendant to raise grievances about the non-
CS NO. 36/13/96 (New- 7974/2016 ) Page 24/26availability of complete site, delay in providing architectural and structural drawings as well as the construction material. Though PW.1 deposed about the un-productiveness of its salaried staff alleging a number of breaches on the part of the defendant, not a single documentary evidence could be brought on record by the plaintiff in support of its claim. There is no material available on record to show whether during any such alleged delay on the part of the defendant in providing the clear site or construction material to the plaintiff, the plaintiff paid the salary to it staff who remained idle.
Further, during his cross-examination, DW.1 categorically deposed that all such delay on the part of the defendant were duly considered as per hindrance register Ex.PW.1/55 and extension of time was granted to the plaintiff for completion of the assigned work. DW.1 also deposed that the plaintiff was also compensated under clause 10 (CC) of the Agreement Ex.PW.1/6 for increase in rates of the material and labour. The plaintiff could not place on record any evidence contrary to the deposition of DW.1 in this regard.
36 In the entire set of circumstances, I do not find any merit in the claim of the plaintiff for a sum of Rs.1,22,800/- which were allegedly caused due to non-productiveness of its staff. Such alleged un- productiveness could not be proved on record by the plaintiff by leading cogent and positive evidence. The plaintiff is accordingly not entitled for this claim.
Claim No.10 37 Under claim no.10, the plaintiff claimed interest @ 24% per annum amounting to Rs.83,952/- for a period of nine months on a CS NO. 36/13/96 (New- 7974/2016 ) Page 25/26 sum of Rs.4,66,402/- which comes to a total sum of Rs.5,50,354/-. As per the plaintiff's version, he was entitled to interest @ 24% per annum amounting to Rs.83,952/- as pre-suit filing, pendente lite and future interest. The plaintiff claimed aforesaid rate of interest on a sum of Rs.4,66,402/- i.e the amount claimed by it under claim no.1 to 9 in the plaint. The fact that all the aforesaid claims of the plaintiff have already been declined as per aforesaid findings on each claim, the plaintiff is not entitled to claim interest thereon. Moreover, with regard to claim of rate of interest, there is no mention of any kind of interest whatsoever in the whole Agreement Ex.PW.1/6 executed between the parties. Thus, there is no basis to claim interest by the plaintiff. This claim is not substantiated and is, therefore, declined. RELIEF 38 In view of the findings on issue no. 2, 4 & 5, the plaintiff has miserably failed to establish the claims against the defendant. The suit of the plaintiff is also barred under Section 53-B of the DDA Act. The suit of the plaintiff is accordingly dismissed with costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court (KULDEEP NARAYAN)
on 30.07.2016 Additional District Judge-05
West District Court :
Tis Hazari Courts, Delhi.
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