Bangalore District Court
M/S.Simplex Infrastructures Limited vs Union Of India on 13 April, 2022
IN THE COURT OF THE LXXXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU CITY [CCH-84]
:Present:
Ravindra Hegde,
M.A., LL.M.,
LXXXIII Addl. City Civil & Sessions Judge,
Bengaluru
Dated on this the 13th day of April 2022
COM.O.S.No.3577/2008
Plaintiff M/s.Simplex Infrastructures Limited,
(A company registered under the
Companies Act, 1956)
having its Registered Office at
Simplex House,
27, Shakespeare Sarani,
Kolkata-700017.
Through Sri.K.L.Baid,
Sr.General Manager,
(By Sri. CMC/RSS, Advocate)
// versus //
Defendants 1. Union of India
through
The Chief Engineer,
Cvil Engineering Division,
Department of Space,
LPSC Campus, 80 Feet Road,
HAL-II Stage,
Bengaluru.
2. The Superintending Engineer (C)
Civil Engineering Division,
AITF/CATVAC Building,
ISRO, New ISAC Campus,
Marathahalli, Bengaluru.
2
CT 1390_Com.O.S.3577-2008_Judgment .doc
3. The Chief Construction Engineer,
Civil Engineering Division,
Department of Space,
LPSC Campus, 80 Feet Road,
HAL II Stage, Bengaluru.
(By Sri.A.N.G, Advocate)
Date of Institution of the suit : 03/06/2008
Nature of the suit : Recovery of Money
Date of commencement of :
recording of the evidence
Date on which the Judgment : 13/04/2022
was pronounced.
: Year/s Month/s Day/s
Total duration
13 10 10
JUDGMENT
This suit is filed by plaintiff for recovery of amount of Rs.1,99,19,713/- from the defendants jointly and severally along with interest @18% per annum from the date of suit till realization of the entire amount and for cost.
2. The brief facts of the plaintiff's case is as under:
The plaintiff is a reputed contractor and is a company registered under Companies Act 1956 and is engaged in the construction industry for more than 80 years and is represented by its Senior General Manager who is authorized by the Board of Directors. The plaintiff was awarded the work of construction of building for AITF at New ISAC Campus, Marathahalli, Bengaluru and work order was issued on 3 CT 1390_Com.O.S.3577-2008_Judgment .doc 5/6/2002 and the commencement date was fixed as 2/6/2002 and the period of completion fixed was 16 months and the work was to be completed by 19/10/2003, but the work was actually completed on 15/2/2005 with a delay of 15 months 27 days. The value of the work order issued in favour of the plaintiff was Rs.11,74,58,180/-. During the currency of the contract, plaintiff was awarded additional work of construction of building for CATVAC at New ISAC Campus, Marathahalli, Bengaluru, for which work order was issued on 27/3/2003 and the work was to be completed within 12 months by 26/3/2004 and the work is completed on 28/2/2006 i.e. by delay of 23 months. The said work was for Rs.6,00,45,486/-. In respect of the first work, agreement was entered into between the parties and work order was made an integral part of the agreement and the agreement provides for different clauses. K.G.Srinidhi, Engineer-SE(C)-CED/DOS, Bengaluru was designated as the Engineer-in-charge of the work and the plaintiff was directed to contact him for further instructions in connection with the work. Plaintiff was required to complete 1/8th work in 1/4th time, 3/8th of the work before half time and 3/4th of the work before 3/4th period and if failed to adhere to the time schedule, he would be liable to pay compensation equal to 1% or such smaller amount as the Engineer-in-Charge may decide on the estimated cost of the work and compensation shall not exceed 10%. Contract also provided extension of time in clause 5 of the contract on the ground of execution of the work having 4 CT 1390_Com.O.S.3577-2008_Judgment .doc been unavoidably hindered or on any other ground and the Engineer-in-Charge was to determine the extension if he found the grounds to be reasonable. Plaintiff was required to submit monthly bill of the work done on or before the date fixed by the Engineer-in-charge and Engineer-in-charge was required to take the requisite measurements for the purpose of having the bill submitted by the plaintiff verified. The standard of material to be used are all stipulated in the contract. For the delay in supply of stipulated material by the employer the contractor would be granted extension of time and compensation for escalation of account on increase of price materials, wastage or labour are also provided. As per the contract if any dispute arise the contractor plaintiff was required to refer the same to the Chief Construction Engineer along with details of the claims, justification with supporting documents and the Chief Construction Engineer was required to give his decision in writing within a period of 60 days and if the decision is not given within 60 days or if the decision is not acceptable, contractor could approach the Chief Engineer within 60 days and the Chief Engineer was required to give decision within 90 days and the decision of the Chief Engineer is accepted as final and if the Chief Engineer's decision was not acceptable, the plaintiff could approach the Law Courts at Bengaluru for settlement of the disputes after giving due notice. The plaintiff commenced the execution of the work in right earnest and the defendants were satisfied with the progress achieved by the plaintiff and as such the 5 CT 1390_Com.O.S.3577-2008_Judgment .doc plaintiff was even given another work of construction of building for CATVAC/ETF. The completion of both the works was delayed on account of reasons wholly and exclusively attributable to the defendants and the plaintiff was made to suffer severe financial consequences as a result of the delays. The plaintiff has brought to the notice of the defendants about the delay, but no remedial measures were initiated in time and as such the work continued to suffer set backs. The work could not be completed by the plaintiff in time due to various bottlenecks/hindrances faced by the plaintiff during the currency of the contract and even in the extended period.
3. Plaintiff has shown hindrance faced by the plaintiff in execution of the work under about 19 heads which are clearly stated in the plaint and explanation is also given. The hindrance included delay in providing drawings and location of work, non availability of tor steel with the defendants, transporters' strike, delay in providing clearances for other agencies, delay in finalization of external services, delay in finalization of colour scheme of tiles, plaster and paints etc, non finalization of foundation bottom levels, hold on footings of utility building and satellite building, delay in execution of chilled water trench, delay in gantry girder works, non finalization of plinth beam top level for harness lab, delay in SCB work, delay in work at air lock building and also addition of new electrical trenches, repair of works done due to damages caused by other agencies, change/modifications made as per directions of defendants to 6 CT 1390_Com.O.S.3577-2008_Judgment .doc suit requirements of other contractors, delay in finalization of finishing items, delay in finalization of nature and methodology of roof treatment for roof slab at thermovac building and blasting due to encountering of hard rock. These are the main reasons and hindrances due to which work could not be completed in time. Due to this hindrance, plaintiff was prevented from doing proper planning for material procurement and also suffered on account of idleness of resources and though plaintiff has brought these facts to the notice of the defendant from time to time by different letters mentioned in the plaint starting from 3/9/2002, defendants have not take immediate steps and not allowed work to progress smoothly. Due to which plaintiff has suffered huge loss. Inordinate delay in providing drawings and location of work had major effect on the work and men and machinery of the plaintiff became idle for want of drawings and location for execution. Non availability of tor steel with the defendants, transporters' strike, resulted in slowing down of the progress of the work to the great extent. Supply of tor steel was mentioned in the agreement and it was the obligation of the defendants to supply the same from the own store. On one occasion due to acute paucity of material in the stores, the defendants even allowed the plaintiff to purchase tor steel from the market. The strike of transporters lead to delay in supplies of necessary material and it resulted in waste of valuable time as well as idling of resources of the plaintiff. Even the defendants were not 7 CT 1390_Com.O.S.3577-2008_Judgment .doc having a proper program and planned activities of other agencies deployed at the site. On many occasions plaintiff could not get work fronts from the other agencies deployed by the defendants and this resulted idleness of resources of the plaintiff. Non finalization of location details at external surfaces has caused delay in execution of the road work and connection of chilled water trenches with other buildings. Due to non finalization of details of road geometry for approaches, the construction of approach road is delayed. Even in finalization of colour scheme of tiles, plaster and paints etc it was incumbent upon defendants to have finalized the details well in time. Due to non finalization of colour scheme of tiles, plaster and paints it was incumbent upon defendants to have finalized the details well in time. Due to non finalization of the colour scheme in time, plaintiff was made to suffer extra cost. Similarly there was lapses in finalization of other part of the work which are given in detail in the plaint.
4. Various hindrances, obstruction, breach of contract on the part of the defendants, made the plaintiff to suffer huge financial loss due to over stay charges on account of under utilization of plant and machinery and additional cost for providing bank guarantee and workmen compensation policy period during extended period, loss of profit due to overstay, extra expenses on procurement of various materials. As per the legal position which is well settled by the various decisions of Hon'ble Supreme Court 8 CT 1390_Com.O.S.3577-2008_Judgment .doc regarding award of compensation for prolongation of the contract period is required to be applied for determining the compensation payable to the plaintiff due to lapses on the part of the defendants. As the plaintiff has suffered huge loss due to prolongation of the contract period for the lapses on the part of the employer, the plaintiff is entitle for compensation. As per clause 25 of the agreement for settlement of a dispute, plaintiff was to approach the Chief Construction Engineer. The plaintiff submitted claim for reimbursement of extra cost incurred during the overrun period of the contract to the Engineer-in-charge on 15/7/2005 and claimed a sum of Rs.1,48,68,900/- the Engineer-in-charge has replied on 15/9/2005 and he concluded that the reimbursement of extra cost was not admissible. Thereafter the plaintiff addressed a letter on 10/12/2005 and informed the actual position and requested him to give effect to the settled law of the land and accept the claim made by the plaintiff. However, the Engineer-in-charge has not considered the request. Thereafter, being dissatisfied, the plaintiff by letter dated 30/12/2005 refers the matter to Chief Construction Engineer. In terms of clause 25 of the agreement. Chief Construction Engineer on 12/1/2006 asked the plaintiff to submit details of the claim along with necessary justification and supporting documents and plaintiff furnished the same on 27/1/2006. The Chief Construction Engineer was required to give decision within 60 days, but has not given the decision and though the plaintiff 9 CT 1390_Com.O.S.3577-2008_Judgment .doc approached the Chief Engineer by letter dated 30/3/2006. In the meantime on 17/4/2006 the Chief Construction Engineer rejected the claim of the plaintiff and this decision is non-est as the same is not given within the stipulated period. The Chief Engineer by its letter dated 18/4/2006 informed the plaintiff that he has sought certain clarification from this construction engineer and after receiving the same matter would be examined. Subsequently on 1/5/20065, the Chief Engineer stated that after the order of Chief Construction Engineer dated 17/4/2006, plaintiff is at liberty to submit the claim afresh. Thereafter, plaintiff sent another letter on 13/5/2006 and another interim bill on account of additional expenses. Thereafter meeting was held before Chief Engineer and procedure to be followed was devised and plaintiff submitted necessary documents to justify the claim and also furnished fresh details by subsequent letter and reply was received from the defendants and plaintiff submitted the para wise rebuttal to the reply of the defendants and on 6/11/2006 matter was reserved for decision. As for more than two months decision was not received plaintiff called on the Chief Engineer on 8/1/2007 and he was informed that decision was already given on 29/11/2006 but no formal decision was supplied to plaintiff. On 23/2/2007 formal decision was communicated to the plaintiff by the Chief Engineer. The Chief Engineer decision has no value in the eye of law since it is non speaking order and do not address any of the issues. The decision of the Chief Engineer is not 10 CT 1390_Com.O.S.3577-2008_Judgment .doc even tenable in view of the fact that there are admissions on the part of the defendants regarding various delays which have been totally ignored by the Chief Engineer. The Chief Engineer has merely held that the plaintiff is equally responsible for the prolongation of the contract, without elucidating in any manner the so called lapses. Thereafter, plaintiff gave notice u/s 80 of CPC and defendants replied. Subsequently by letter dated 10/1/2008 the defendants have levied liquidated damages amounting to Rs.93,970/- on the plaintiff for the alleged delay for the period of 1/10/2005 to 28/2/2006. This letter show that there are no reasons for levy of liquidated damages and no justification was given and the levy was made without even issuing a show cause notice to the plaintiff and it is levied after lapse of three years which clearly show that it is illegal and uncontractual. Plaintiff protested against illegal levy of compensation. With these averments, since the plaintiff's claim is not responded by the defendants, plaintiff has filed this suit for recovery of Rs.1,99,19,713/- with interest.
5. The defendants have filed written statement and stated that the suit filed by the plaintiff is mischievous act to make unlawful gain on the basis of incorrect interpretation of the terms and conditions of the contract. It is stated that the description of the defendants as made in the plaint is not correct. Awarding of the contract to the plaintiff by the defendant and entering into different documents are all admitted by the defendants. It is stated that the date of 11 CT 1390_Com.O.S.3577-2008_Judgment .doc completion of the work as stated in the plaint is also not under dispute, however several rectification work was undertaken, but were attended partially by the plaintiff and the balance rectification work were attended to by the defendants at the risk and cost of the plaintiff after reminding the plaintiff through several notices. It is stated that the clause 41 of the general conditions of contract, clause 3 of additional conditions of contract and clause 18 of special conditions of contract are relevant for consideration. It is stated that as per the conditions cement required for construction of cement godown, tank and platform for casting pre-cast RCC units will be issued and recovery rate was specified and and there is also condition to return the unused reinforcement bars and structural steel to department store with respect to each of the dimensions specified and there was a condition in respect of levy of charges for materials returned to the stores and recovery rate for the materials issued free of cost was also mentioned. It is stated that the contractor shall be entitled for extension of time as may be determined by the Engineer-in-charge whose decision would be final. The defendants have referred to important clauses which according to the defendants are not referred by the plaintiff. It is stated that the contention that additional work for construction of building of CATVAC/ETF was awarded in favour of the plaintiff based on satisfactory progress of AITF work as stated by the plaintiff is not correct. It is stated that during the course of execution of construction of building for 12 CT 1390_Com.O.S.3577-2008_Judgment .doc AITF work, an offer was made to plaintiff whether it is willing to execute the work under the same terms and conditions and plaintiff readily agreed to take up the work and offered a rebate of 1.5% over the quoted rates already approved. It is stated that the plaintiff has not commenced the work in right earnest as claimed by it. It is denied that the work was delayed on account of the defendants. It is stated that the plaintiff alone is responsible for prolongation of the contract and the defendant had cooperated in all aspects. Various hindrances suffered by the plaintiff as stated in the paint are denied by the defendants and the defendants have given explanation to each one of the alleged hindrances stated by the plaintiff. It is stated that the drawings were released in time and flow of drawings was as per schedule. It is stated that the defendants periodically pointed out slow progress of work and requested to take immediate action to accelerate the progress of work by taking into account various hindrances occurred during the course of execution of work, extension of time for completion of work has been granted without prejudice to the right of the government to recover the liquidated damages. For non availability of steel it is stated that there instructions were given to contractor for procurement of such rods not available in stores. Transporters' strike is noted in the hindrance register and extension of time is given for to such an extent and even delay occurred due to non clearances from other services / agencies is also considered while granting extension and clearance for 13 CT 1390_Com.O.S.3577-2008_Judgment .doc taking up chilled water trench work had been accorded immediately on receipt of block levels and longitudinal sections. It is also stated that the clearance for the foundation bottom levels were accorded in time and there was no delay in finalization of bottom levels. It is stated that the hold was only on 9 footings out of 100 footings and it has not hindered the progress of work as stated by the plaintiff. It is stated that the execution of trenches was cleared immediately on receipt of details and this is a parallel work and had not affected progress of other works. The allegations about delay in finalization of top level of RCC bracket has not delayed the progress of work as other activities were in progress at different areas. It is stated that the required details were provided in time with regard to plinth beam top level of harness lab and progress of SCB works has not hampered for want of clearance with respect to opening in walls as stated by the plaintiff. It is stated that the required details were made available well in time before the scaffolding and shuttering for balance area of airlock yet to start and there was no delay due. Even the allegations of other reasons for the delay are also denied by the defendants. It is stated that sheet rock was encountered during excavation for foundation for high bay area and controlled blasting was resorted to ensure safety of adjacent building and the hindrance due to this has been taken into consideration while granting extension of time. It is stated that the architectural and structural drawings required for AITF work was released on 14 CT 1390_Com.O.S.3577-2008_Judgment .doc 6/6/2002 and subsequently on 17/6/2002 structural drawings indicating the details of foundation / plinth beams for mechanical integration area, harness lab and utility building were released to keep the progress of work. It is stated that as progress of the work was slow by sending letter dated 3/10/2002, the plaintiff was informed about the same and at no point of time had suffered for want of release of drawings. It is stated that as per the agreement by 20/10/2002 12.50% work was to be progressed, but only 6% work was progressed and similarly by 19/10/2003 though 100% work was required to be progressed, but only 75% work was progressed. It is stated that despite availability of front to execute the work, the work was progressing slow due to short deployment of the labour force. The defendant has also given details of labour engaged/ period of deployment till the completion of work. It is stated that by March 2004 100% work was to be completed, but only 50% work was done. There were 'hold' on work which was intimated to the plaintiff and the plaintiff was very well aware of the architectural drawings at the beginning of project and this is lying with clause 29 of the special conditions of contract. The different letters exchanged between the parties are referred to by the defendant in the written statement. The delay in finalization of colour scheme of tiles, plaster and paints as stated by the plaintiff are also denied by the defendants. It is stated that colour scheme for external surface was furnished to the plaintiff on 5/4/2004 with minor changes by letter dated 15 CT 1390_Com.O.S.3577-2008_Judgment .doc 5/5/2004 and subsequently confirmed on 11/5/2004. External plastering was still in progress during the month of May 2004. It is stated that though colour scheme was given on 5/5/2004, plaintiff had taken considerable time to complete the external finishes. It is stated that, though time for external painting was required 133 days and the time taken by plaintiff is 279 days, this is due to slow progress of the work and plaintiff had delayed the work for 146 days. The defendants have not given explanation for different hindrances mentioned by the plaintiff in separate heads and denied that there is delay caused by the defendants.
6. Defendants have stated that, action taken by the defendants with respect to alleged hindrances claimed by the plaintiff has not resulted in any losses as there was no idling of man power and equipment and alleged claim of huge losses due to over stay by the plaintiff is not tenable. It is stated that the claim of the plaintiff on account of under utilization of plant and machinery, under utilization of site establishment during the extended period, additional cost for providing bank guarantee and workmen compensation policy during the extended period, loss of profit due to over stay, extra expenses on procurement of various materials etc is refuted by the defendant. It is stated that these are not tenable claims, as plaintiff is also equally responsible for prolongation of the contract. It is stated that whenever delay has occurred, relevant clauses of the contract had come into play and suitable time extension had been granted with 16 CT 1390_Com.O.S.3577-2008_Judgment .doc benefits of price escalation payment. It is stated that the plaintiff had sent letters to the Engineer-in-charge and it was intimated that claim cannot be considered and being aggrieved the plaintiff has invoked clause 25 of the agreement and approached the Chief Construction Engineer and thereafter Chief Engineer and they have all considered and passed appropriate orders. It is stated that the Chief Engineer had heard the claim and rebuttals of both the parties and thereafter given the decision on 29/11/2006 and the Chief Engineer has given his considered decisions that the plaintiff is also equally responsible for prolongation of contract. It is stated that notice given by the plaintiff is suitably replied and the claim of the plaintiff has been rebutted. The defendant denied that the compensation of Rs.93,970/- was levied with malafide intention. It is stated that the levy of compensation is for the additional authorized work of CATVAC building which the plaintiff had delayed. It is stated that the levy of compensation is for the period beyond the justifiable delays. It is stated that the levy of compensation for the delayed period is in order and it is also stated that while granting extension of time, the defendant has reserved the right to levy of liquidated damages as per clause 2 of the conditions of contract. On all these grounds, the defendants have prayed to dismiss the suit with exemplary costs.
17CT 1390_Com.O.S.3577-2008_Judgment .doc
7. After filing of the written statement, the plaintiff has even filed rejoinder to the written statement and denied the various averments of the written statement. The plaintiff in its rejoinder has denied various averments of the written statement which need not be reproduced again.
8. On these pleadings, the learned predecessor of this Court has framed following issues.
ISSUES
1) Whether plaintiff proves that the work was delayed due to various reasons as shown in the plaint?
2) Whether the plaintiff suffered losses due to delay in completion of work?
3) Whether the plaintiff proves that by awarding additional work of construction of CATVAC/ETF building, the defendants were satisfied with the progress achieved by the plaintiff?
4) Whether the defendants prove that the rejection of the claims by the Chief Engineer was by means of a speaking order?
5) Whether the defendants prove that the plaintiff had done defective work and not removed the defects?
6) Whether the defendants prove that they were justified in levying liquidated damages for an amount of Rs.93,700/- on the plaintiff?
7) Whether the plaintiff proves that the service of a show cause notice on the plaintiff was required before levying of liquidated damages?
18CT 1390_Com.O.S.3577-2008_Judgment .doc
8) Whether the plaintiff is entitled for amount of Rs.1,99,19,713/- and interest @18% per annum from the date of filing of the suit till its satisfaction of the decree amount?
9) To what order or decree?
9. In support of the plaintiff's case Pws.1 and 2 are examined and Ex.P.1 to Ex.P.95 documents are marked. For defendants Dw.1 is examined and Ex.D.1 to Ex.D.65 documents are marked.
10. Heard both the counsels. Both the counsels have filed written arguments also. Perused records.
11. My answer to the above issues are :
ISSUE No.1 : In the negative.
ISSUE No.2 : In the negative.
ISSUE No.3 : Do not arise for consideration.
ISSUE No.4 : In the Affirmative .
ISSUE No.5 : Do not arise for consideration.
ISSUE No.6 : Do not arise for consideration.
ISSUE No.7 : Do not arise for consideration.
ISSUE No.8 : In the negative.
ISSUE No.9 : As per final order for the following:
REASONS
19
CT 1390_Com.O.S.3577-2008_Judgment .doc
20
CT 1390_Com.O.S.3577-2008_Judgment .doc
12. ISSUES No.1 and 2 : Since both these issues are interlinked with each other, they are taken together for discussion, to avoid repetition.
13. The case of the plaintiff is that the defendants had awarded work of construction of building for AITF at New ISAC Campus, Marathahalli, Bengaluru in favour of the plaintiff on 5/6/2002 and the work was to commence on 20/6/2002. the value of the work was Rs.11,74,58,180/- and the work was to be completed within 16 months. As against the prescribed period of 16 months, which expires on 19/10/2003, work was actually completed on 15/2/2005 i.e. with a delay of 15 months 27 days. After entrusting this work, defendants had also entrusted additional work of construction of building for CATVAC at New ISAC Campus and the work order was issued in favour of the plaintiff in respect of this work on 27/3/2003 and the work was to be completed within 12 months from the date of issue of letter of intent i.e. 27/3/2003. Therefore, work was to be completed by 26/3/2004 and work was actually completed on 28/2/2006 with delay of 23 months. The work order issued to the plaintiff was for Rs.6,00,45,486/-. Though in respect of both the works, specific time was fixed within which the work was to be completed, for different reasons, work could not progress and extension of time was granted as provided in the contract and finally work is completed. Alleging that the delay and hindrance is on the part of the defendants, by seeking expenses incurred as over head charges during the 21 CT 1390_Com.O.S.3577-2008_Judgment .doc period beyond the initially agreed time of contract, plaintiff approached the Engineer-in-charge. Then by following clause 25 of the contact has approached Chief Construction Engineer and thereafter the Chief Engineer. Since order of Chief Engineer was not acceptable, as permitted in clause 25, plaintiff has filed this suit.
14. Plaintiff has claimed total amount of Rs.1,99,19,713/-. Claim of the plaintiff is in respect of expenses incurred during prolonged period, on account of charges on plant and machinery and office for the over stay, extra cost incurred on purchase of material during the over stay period and also the extra cost incurred on labour. Clause 25 of contract entered between the parties clearly provides for dispute resolution, through adjudication after complying with the requirement of clause 25. According to the plaintiff, requirement of clause 25 are complied by approaching Engineer-in-charge, Chief Construction Engineer and thereafter the Chief Engineer, before filing the suit. The defendants in the written statement have denied the allegation of hindrance caused by the defendants. They contend that the lapses are on the part of the plaintiff for which several letters were sent asking to accelerate the speed of work so that the work could be completed within the prescribed time and within the period of extended time. The defendants denied each and every allegation of the plaintiff regarding the delay caused. In the plaint the plaintiff has stated the delay caused by the plaintiff under several heads.
22CT 1390_Com.O.S.3577-2008_Judgment .doc It is stated in the plaint and also in the chief evidence of PW.1 that the work assigned to the plaintiff could not be completed in time due to various bottlenecks/hindrances faced by the plaintiff during the currency of the contract and even in the extended period. The plaintiff has stated the various hindrances faced by the plaintiff in the plaint and delay under each such heads are also explained in the plaint. Defendants in their written statement have denied the same. Both the parties have referred to several correspondences exchanged between the parties.
15. In support of the plaintiff's case Pws.1 and 2 are examined. PW.1 in his chief affidavit has reiterated plaint averments and also referred to several letters exchanged between the parties regarding these delays and stated that the reasons for the delay is attributable to the defendants. In the cross examination PW.1 has denied the contrary contentions. The witness has admitted that the period of completion of work was 16 months and it was the realistic period and stated that the additional work order was given on 27/3/2003 and this work was to be completed within 12 months. The witness has stated that the PERT chart is prepared by the contractor and submitted to department and based on their comments/advises, contractor has resubmitted the revised PERT chart for final approval of the department and got approved before proceedings with the work. The witness has stated that they have not taken into consideration the possible hindrance that is likely to be 23 CT 1390_Com.O.S.3577-2008_Judgment .doc encountered. PW.1 has stated that except specialized agency works, as per the approval of the department, all other things were done by the plaintiff and denied that they had absolute discretion to carry out the work and make progress in the work. The witness has stated that the work order was given on 5/6/2002 and admitted that the Bhoomipooja was done on 5/7/2002 and no work was done till that date, except preparatory work like surveying and site infrastructure facilities. PW.1 has stated that he do not know about the letter dated 8/7/2002 given by the defendant stating about the delay in mobilizing work at spot and furnishing of pert chart and bar chart. The witness has stated that most of the letters notified by the defendant regarding the delay were answered with proper justification of the delay which are not attributable to the contractor and based on the submission, the department has sanctioned various suitable time extension for completion of the balance scope of work in which the quantum of work already completed will be appearing. The witness has stated that the contractor has to submit delay progress report, which clearly indicates the progress achieved and the details of staff, manpower, machinery worked on that day and stated that he do not dispute that as on September 2002 only 6% of the work was carried out as per letter of the defendant. PW1 has stated that this letter was replied by stating the reasons due to which the progress could not be done. The witness has stated that he felt that the project can be completed within 16 months and 24 CT 1390_Com.O.S.3577-2008_Judgment .doc there was interruption by monsoon rain. The witness admitted that work was at all fronts, holds were not there. The witness has stated that the chart given by the defendant in the written statement is disputed and he has no work progress report to show the progress from June 2003 to March 2004. The witness admitted that they were expected to complete to procure construction material and store it at site and the storage materials are sufficient to keep the workers engaged and denied that inspite of knowing the transporters' strike in advance, they have not stored the sufficient materials in advance. PW.1 has admitted that the department has taken into consideration the hindrance and also necessary extension of time. The witness admitted that the Chief Engineer has passed final order on 29/11/2006 in respect of dispute of both the parties, by considering the documents produced by both the parties. It is also admitted that the Chief Engineer has given finding on all the claims made by the plaintiff. Witness denied that rejection of plaintiff's claim by the Chief Engineer is justified under the engineering norms.
16. PW.2 is the Senior General Manager Accounts of plaintiff who has given evidence to explain the claim made by the plaintiff in the suit. Witness has stated about the charges on account of plant and machinery for over stay period, overhead charges, for head office and charges for renewal of bank guarantee, insurance premium and expenditure incurred for shifting the material during the over stay period 25 CT 1390_Com.O.S.3577-2008_Judgment .doc and extra cost for purchase of material and extract cost incurred on labour during over stay period. Total amount of claim of Rs.1,99,19,713/- is reiterated with details by PW.2. In the cross examination, PW.2 has stated that on the basis of the accounts maintained by the employees the account was finalized and he was having extra input in addition to the accounts, like bank guarantee commission, insurance premium, head office over heads expenses etc. Witness has stated that he has not seen the pert chart prepared during the subsistance of the contract and admitted that any estimate expenditure expected to be incurred on the project has been taken care during the tender. The witness has stated that they were getting figures from HR Department and after examining those bills Commercial Department passed those bills for payment on the basis of paid bill as per the voucher the expenditure is shown in his affidavit. The details as to how many telephones were used and regarding the expenditure made for electricity, water charges, house rent, watch and ward, medical expenses, general expenses etc are all asked to the witness. Witness has stated that Rs.65,000/- was incurred for refreshment as per the document produced and it cannot be specifically explained as it includes various expenses.
17. For the plaintiff Ex.P.1 to Ex.P.49 are marked in the chief of PW.1 as letters. However, it is found that these Ex.P.1 to Ex.P.49 includes letters and also the claim made before the Engineer-in-charge and then construction Engineer 26 CT 1390_Com.O.S.3577-2008_Judgment .doc and thereafter the Chief Engineer. It also includes the letter given for extension of time to the defendant. Twelve Box Files containing documents like vouchers along with summary sheet regarding expenses incurred during over stay period are produced as Ex.P.50 to Ex.P.61. In the cross examination of DW.1, on 26/2/2015 several letters and correspondences between plaintiff and defendants were confronted and were in a set marked as Ex.P.62 to Ex.P.100 and later corrected as Ex.P.62 to Ex.P.95.
18. For the defendants, DW.1 is examined and witness has reiterated, defendants' case in chief affidavit. In the cross examination, he has admitted that second work as additional work was given to the plaintiff as per Ex.D.44 without inviting tender and in order to save time the work was awarded to the subsisting contractor who was willing to take up the work. He has stated that based on evaluation of the work carried out for the first work, second work was awarded to the plaintiff to save the time. The witness has stated that no liquidated damages were levied on the plaintiff for the first work. The witness has stated that by taking cognizance of delay, extension of time is granted. Witness has stated that levy of compensation is provided in clause 2 of conditions of contract, if there is delay in the performance of contract. Witness has stated that, as per clause 5, plaintiffs have to approach the department for extension of time with reasons and by considering the same, extension of time is granted. The witness has denied the suggestion that only if the delay is 27 CT 1390_Com.O.S.3577-2008_Judgment .doc not attributable to the plaintiff, extension of time can be granted. The witness admitted that as per clause 3, defendant could have terminated the contract for late progress on the part of the plaintiff and stated that no notice was served under clause 3 and stated that there was notice given under clause 2. He has stated that since contractor applied for extension of time under clause 5, department has considered and extension of time was granted under clause 2 for the various reasons brought on record. Witness has stated that the time was extended from time to time to keep the contract alive based on the request of the plaintiff. The witness has stated that the time was essence of the contract and the contractor was required to follow the time schedule and denied the suggestion that, at the time of extension of time, the time was not made as essence of the contract. The witness has stated that letters were written to the plaintiff for slow progress of the work and requested him to accelerate the progress. The witness has stated that no counter claim is made with regard to rectification of the defects carried out at the risk and cost of the plaintiff as mentioned in para 5 and 6 of the written statement. DW.1 denied that due to various delays of the defendant, work was got prolonged and denied that the delay is attributable to the defendants. The witness admitted that the PERT chart were accepted from time to time and denied the suggestion that due to delay in supply of drawings by the defendant, progress of work has suffered and stated that the drawings were supplied in time. The witness 28 CT 1390_Com.O.S.3577-2008_Judgment .doc has stated that there is a clause in the additional conditions of contract that sequence of work shall be as decided by the Engineer-in-charge and accordingly release of drawings as per the progress of the work. The witness has stated that Ex.P.64 is reply for Ex.D.14. The witness denied as there was delay due to the lapses on the part of the defendants, without imposing any liquidated damages, time was extended. The witness has stated that entire delay is not attributable to the defendant. However, he admitted that some delays are caused by the defendants including giving drawings. The witness admitted that in Ex.P.65 the plaintiff had asked them to give design, drawings and he do not remember when the drawings were given to the plaintiff. The witness has admitted that as on 10/10/2002 only Rs.1,45,00,000/- value of work progress was released. The witness has stated that in the contract it is not specifically mentioned that the work front is to be released as per the progress of the work. However, witness denied that the work front release upto 10/10/2002 was not even 12.05% of the progress of the work. The witness admitted that Ex.P.8 and Ex.P.9 are not answered. Witness denied that for the reasons mentioned in Ex.P.10 by the plaintiff, they had given extension of time. Witness has stated that they have granted extension by considering other reasons upto 30/9/2004. The witness admitted as per the agreement they were required to supply steel and they were not having required diameter and that was one of the reason for delay. The witness has denied that 29 CT 1390_Com.O.S.3577-2008_Judgment .doc they have frequently changed the required diameter of steel and the plaintiff suffered scarcity of diameter of steel and there was no clarity. DW.1 admitted that for electrical work, air condition work and steel work different contractors were engaged and due to delay caused by those contractors, delay is caused in the work of the plaintiff. DW.1 has denied that defendant has no right to levy the liquidated damages of Rs.93,700/- on the plaintiff.
19. The defendants have produced copy of letters which are marked as Ex.D.1 to Ex.D.65.
20. On considering the plaint, written statement and evidence led by both the parties and also the documents produced, admitted facts of the case are that the work of construction of building for AITF in ISAC premise was entrusted to the plaintiff and the work order was issued on 5/6/2002 and work was to commence on 20/6/2002 and total amount of the work was Rs.11,74,58,180/- and the work was to be completed within 16 months i.e. 19/10/2003. It is also an admitted fact that due to several hindrances and various reasons, work was delayed and extention of time was sought by the contractor as per clause 5 of the contract and employer i.e. the defendants have given extension of time many times and finally the work is completed on 15/2/2005 and there was delay of about 15 months and 27 days according to the plaintiff. It is also an admitted fact that when the work of the AITF was in progress, employer has given additional work of construction of building for CATVAC 30 CT 1390_Com.O.S.3577-2008_Judgment .doc and the contract was given to the plaintiff as per the letter of intent dated 27/3/2003 and within 12 months from this day the work was to be completed and the total contract amount was Rs.6,00,45,486/-. Even this second work of contract of building for CATVAC was not completed in time and even in respect of this, contractor has sought extension of time and the employer has given the extension of time and finally the work is completed, according to the plaintiff on 28/2/2006 with delay of 23 months.
21. The dispute in the present suit is not in respect of the payment of the contract amount as agreed in the contract. The dispute is also not in respect of payment of escalation as provided in clause 10cc of conditions of Contract. The dispute in the present suit is in respect of over head charges that is said to have been incurred by the plaintiff due to prolongation of the work and non completion of the work in time. According to the plaintiff due to prolongation of the contract period, plaintiff has incurred expenditure towards charges for plant and machinery during the over stay period in which the charges in respect of own equipment and hired equipment are also included. The dispute is also with regard to charges incurred by the plaintiff on account of overhead charges, for head office and charges for renewal of bank guarantee, insurance premium and expenditure of scaffolding and also extra cost incurred on purchase of materials during over stay period and also the extra cost incurred on labour which is calculated at Rs.1,99,19,713/-. According to the 31 CT 1390_Com.O.S.3577-2008_Judgment .doc plaintiff these are the actual expenditure that are incurred by the plaintiff due to this prolongation of the work and are the expenditure incurred during this prolongation period. According to the plaintiff, these expenses which are claimed by the plaintiff are supported by relevant vouchers, bills and receipts which are found in the box file produced as Ex.P.50 to Ex.P.61. Conditions of contract, special conditions etc agreed between the parties, are not exhibited in this case. Conditions of contract, additional condition of contract and Special conditions of contract admittedly govern the contract and the relationship between the parties in respect of these two works of AITF and CATVAC. Contractor is expected to know the terms of contract, situation at the site etc. In the cross examination of PW.1, it is suggested that plaintiff is expected to anticipate the hindrance that may have to be faced in execution of the work.
22. The condition of contract clause 25 provides for resolution of the dispute. If any dispute or difference arises, then the dispute shall in the first place be referred to the Chief Construction Engineer with details of claim justification with supporting documents. If Chief Construction Engineer do not give decision within 60 days or decision given is not acceptable to the contractor, he may approach the Chief Engineer and Chief Engineer have to decide within 90 days and if the decision of Chief Engineer is not acceptable then the contractor can approach the court. Therefore before approaching the court, there is mechanism 32 CT 1390_Com.O.S.3577-2008_Judgment .doc provided for resolution of the dispute by way of approaching the Chief Construction Engineer and then before the Chief Engineer. By following this procedure only, plaintiff can approach the court. However, clause 25 cannot be interpreted in such a way that when the contractor approaches Civil court, such Court would be sitting in appeal against the decision of the Chief Engineer. As such, whether order of the Construction Engineer and subsequently by Chief Engineer are correct or not, need not be decided in the present suit. If the decision of the Chief Engineer is not acceptable to the contractor or Chief Engineer failed to give decision within 90 days, contractor may approach the law court at Bengaluru for settlement of dispute after giving due notice. Therefore, only fact that Chief Engineer's decision is not acceptable to contractor is sufficient for the contractor to approach the civil court as per clause 25. In the present case, admittedly plaintiff has followed the procedure prescribed in clause 25 and thereby as complied with clause 25 in all respect.
23. By Ex.P.19 on 15/7/2005, plaintiff approached the Engineer-in-charge with the claim for reimbursement of extra cost incurred due to delay in execution of work for the reasons not attributable to the plaintiff. This representation is given by plaintiff to Engineer-in-charge, by narrating the delay under several heads caused by the employer like delay in providing drawing and location of work, non availability of tor steel, transporters' strike, delay in providing clearances for contractors of other services, delay in finalization of external 33 CT 1390_Com.O.S.3577-2008_Judgment .doc services, delay in finalization of colour scheme, non finalization of foundation bottom levels, hold on footings, delay in execution of chilled water trench, delay in gantry girder works, non finalization of plinth beam top level for harness lab, delay in SCB work, delay in work at air lock building and other respective details. After receiving Ex.P.19 Engineer-in-charge on 15/9/2005 has given reply as per Ex.P.20, wherein the Engineer-in-charge denied the contention of the plaintiff parawise and on each ground of delay the Engineer-in-charge has given reply against the allegation of the plaintiff and contended that there was no such delay attributable to the defendants. The Engineer-in- charge in Ex.P.20 has also stated that the claim for reimbursement for extra expenses due to delay on various reasons cited in the letter cannot be considered and it is also mentioned that the hindrance caused to the progress of the work beyond the control of the plaintiff have been noted and suitable time extension is given and that extension of time is without prejudice to the right of the government to recover liquidated damages in accordance with clause 2 of the agreement. Thereafter on 10/12/2015 another letter was also sent by the plaintiff to the defendant in reply to the letter Ex.P.20 and claimed Rs.1,48,68,900/-. Ex.P.23 is the claim made before Chief Construction Engineer as required under clause 25 of the contract. Ex.P.25 is the letter of the Construction Engineer dated 12/1/2005. Ex.P.27 is the letter of the plaintiff on 27/01/2006 to the Chief Construction 34 CT 1390_Com.O.S.3577-2008_Judgment .doc Engineer submitting all necessary documents for decision of the claim. Ex.P.28 is the application given to the Chief Engineer. By Ex.P.30, Chief Engineer asked plaintiff to submit the claims afresh under clause 25, if plaintiff is not satisfied with the decision of CCE. Ex.P.31 is a letter sent to the Chief Construction Engineer on 3/5/2006 stating that decision is not given within 60 days by the CCE and that the matter is already referred to the Chief Engineer.
24. On 10/5/2006 as per Ex.P.32, plaintiff sent another application seeking settlement of dispute under clause 25 of the contract to the Chief Engineer. Subsequently, in Ex.P.33 plaintiff has made further claim before the Engineer-in-charge as per Ex.P.33. The earlier claim of the plaintiff was Rs.1,48,68,900/- and by Ex.P.33 the claim is made for Rs.61,38,962/- for the period from 1/4/2005 to 31/12/2005. By Ex.P.34, Engineer-in-charge by referring to the earlier order has stated that this claim also cannot be considered. By Ex.P.35 the Chief Engineer has sent letter to the plaintiff by fixing the date for meeting and Ex.P.36 is the letter of the plaintiff by submitting the documents in box files for consideration by the Chief Engineer. Ex.P.38 is the letter to the Chief Engineer with documents in support of the claim of the plaintiff. Ex.P.39 is its copy and along with Ex.P.39 the details of delay period has been communicated with different heads of delay and even the claim is quantified. Ex.P.40 and Ex.P.41 are the copies of same letters. However Ex.P.40 do not contain all the pages and in Ex.P.41 letter written to Chief 35 CT 1390_Com.O.S.3577-2008_Judgment .doc Construction Engineer, the reply is submitted with all the details by referring to different delays. Ex.P.42 is the letter written to the Chief Construction Engineer mentioning about the delay and number of delay. In this Ex.P.42 dated 30/10/2006 it is also stated by the plaintiff that they do not agree with the contention of the department that the payment in clause 10cc which is regarding price variation is connected to the subject matter of the claim, as price variation do not provide any compensation to the contractor for the loss suffered by him due to time over run of the project. Ex.P.43 letter dated 13/1/2007 to the Chief Engineer, stating that they have not received the order of the Chief Engineer and the alleged order dated 29/11/2006 has not reached the defendant. This order dated 29/11/2006 is and by this order, Chief Engineer rejected. Though plaintiff contended that till 8/1/2007, plaintiff was not informed about order dated 29.11.2016 and only unsigned portion of an order which was given to plaintiff etc., Order dated 29/11/2006 show that this order is an order running into 86 pages and contains the detailed reasons and decision of the Chief Engineer. Since this court is not sitting in appeal against the order of the Chief Engineer, it is relevant only to the extent of ascertaining that requirement of clause 25 of the contract has been complied and present suit is not premature. Since, requirement of clause 25 has been followed and plaintiff being not satisfied with order of Chief Engineer has approached this 36 CT 1390_Com.O.S.3577-2008_Judgment .doc court with the suit, plaintiff has complied clause 25 of the contract.
25. Issue No.1 and 2 are related to delay in completion of the work due to various reasons and also the loss suffered by the plaintiff due to delay in completion of the work. As stated above, both the works entrusted to the plaintiff were not completed in time. In respect to the first work of construction of building for AITF, there is delay of 15 months 27 days and in respect of additional work of construction of building for CATVAC there is delay of 23 months. Since the present suit is for the expenses incurred by the plaintiff due to this prolongation of work for the reasons attributable to the defendants, it is necessary for the plaintiff to prove that delay caused is due to the employer and that plaintiff has incurred such expenses due to this delay in completion of work and that the employer is liable to compensate the plaintiff for the loss suffered. The defendants have denied their liability and contended that, reasons for the delay is not attributable to the employer and there is delay caused by the contractor and wherever there are hindrances, extension of time has been given. At the time of giving extension of time, defendants have referred to clause 2 of conditions of contract and mentioned that extension is without prejudice to the right of the government to recover liquidated damages. The question of liquidated damages under clause 2 for which the defendants are claiming to be entitled is not the issue before the court in the present suit. As per clause 2, employer is 37 CT 1390_Com.O.S.3577-2008_Judgment .doc entitle to damages for the delay in completion of the work and to achieve the progress as agreed. In the conditions of contract there is no such provision enabling the contractor to claim compensation for the delay caused by the employer. However ,clause 5 of conditions of contract clearly provides that, if contractor desires an extension of time for the completion of the work on the grounds of his having been unavoidably hindered in its execution or on any other ground, he shall apply in writing to the Engineer-in-charge within 30 days of the date of the hindrance on account of which he desires such extensions and the Engineer-in-charge shall if in his opinion there are reasonable grounds, shall authorize such extension of time. Therefore, for any hindrance that is caused in progress of the work, contractor is entitle for extension of time. This clause do not speak about any compensation to which the contractor is entitle for the delay caused or hindrance caused by the employer.
26. Plaintiff has produced letters seeking extension of time in respect of first contract as Ex.P.6 and Ex.P.10 which are dated 29/3/2004 and 31/7/2004. In these letters , plaintiff by mentioning the reasons which is beyond their control which has resulted in non completion of the work, has asked the defendant to grant extension of time by considering those facts into consideration. Similarly in respect of the second work of CATVAC such letters are sent as per Ex.P.7 and Ex.P.18 on 29/3/2004 and on 31/3/2005. There is no dispute that on the basis of such letters seeking extension as 38 CT 1390_Com.O.S.3577-2008_Judgment .doc per clause 5 of conditions of contract, extension has been given by the employer. At the time of filing suit, work was also already completed, though not in time, but within the extended period. In Ex.P.6, 7, 10 and 18 referred above, though plaintiff mentioned several reasons due to which, work could not be proceeded and stated that those reasons are beyond their control, Plaintiff has not stated that they have reserved their right to claim compensation for such delay caused in completion of the project. The plaintiff has simply sought extension of time for the reasons mentioned therein. Therefore, while seeking extension of time, plaintiff has not put the defendants to notice of it's intended claim for compensation for non completion of the work within the time due to the reasons attributable to the employer. On the other hand while giving extension of time, employer has put the plaintiff to notice that such extension is without prejudice to the right of the government to recover liquidated damages as per clause 2. The extension of time sought by the plaintiff is simple extension of time, without putting any condition or reserving right to claim compensation for the loss suffered. On this EOT applications the defendant has granted extension of time, but mentioned about its right to claim liquidated damages, which is not the subject matter of the present suit. Entitlement of plaintiff for compensation for loss suffered and expenses incurred due to delay caused by the employer, without even reserving its right to claim compensation while seeking extension of time, is to be 39 CT 1390_Com.O.S.3577-2008_Judgment .doc established by the plaintiff. More so, when, clause 10cc of the contract provides for compensation for escalation on increase of price of materials and labour.
27. One of the ground for delay in the work as mentioned in the plaint is that of non availability of Tor steel with the defendants. As per the contract certain materials are to be provided by the employer. The plaintiff contends that those materials were not available with the defendants and due to that there was delay in progress of the work. However as per the Additional conditions of the contract appearing in page 79, in clause 3 it is mentioned that, owing to difficulty in obtaining certain controlled and other materials in the market, department of space have undertaken to supply them as specified in schedule and there may be delay in obtaining these materials by the department and the contractor is therefore required to keep himself in touch with the day today position, regarding the supply of materials from the Engineer- in-charge and have to so adjust the progress of the work that, labour may not remain idle nor may there be any other claim due to or arising from delay in obtaining the materials. It is also mentioned that, it should be clearly understood that no claim whatsoever shall be entertained by the department of space on account of delay in supplying materials, but suitable extension of contract time will be considered and granted. Therefore, for non availability of Tor steel with the defendant, which was to be supplied by the defendant, clause 3 of additional conditions will apply and for non availability of 40 CT 1390_Com.O.S.3577-2008_Judgment .doc materials in particular time, extention of time can be considered and no other claim is acceptable. Hence, for non availability of Tor steel with the defendant, though it is an hindrance for progress of the work, that do not entitle the plaintiff for any compensation by way of idling charges for machinery, labour or office etc, as per the Additional conditions clause 3 and no claim can be entertained by the department for this delay in supply of materials. Therefore, plaintiff cannot claim the expenditure incurred by the delay caused due to non supply of material which was to be supplied by the defendant as per the additional conditions of contract.
28. One more delay for which, compensation is specifically barred is suspension of work due to order of 'Hold' . Hold on footings of utility building and satellite building is also shown as one of the delay ground attributable to the defendant. Clause 29 of Special conditions of contract bars the plaintiff from making certain claims. Clause 29 is as under:
"The contractor shall suspend the execution of work or any part or parts thereof, wherever called upon in writing by the Engineer-in-charge to do so and shall not resume work thereon until so directed in writing by him. The contractor will be allowed an extension of time for completion not less than the period of suspension but no other claims in this respect for compensation or otherwise, however will be admissible."41
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29. Therefore, when defendant asked the plaintiff to suspend the particular work or any part of the work for a particular period, extension of time will be given for such work suspended period, but no other claim for compensation is admissible. Therefore for the Hold on footing of utility building and satellite building stated by the plaintiff, as per Clause 29 of Special conditions of contract, plaintiff is not entitle to claim compensation, but plaintiff is entitle for extension of time, which appears to have been generously given. On looking these special provisions provided in the contract entered between the parties, it is clear that in respect of hold on footing of utility building and satellite building compensation is barred under clause 29 of the Special conditions of contract for the period of such hold and for that period extension of time can be granted. Similarly for the non availability of the material which is to be provided by the defendant as per clause 3 of additional conditions, no compensation is payable for the delay in supplying the materials. So the period during which materials to be provided by defendants was not available and the period during which there work was suspended due to order for Hold, these clauses in the contract specifically bars any claim for compensation.
30. Main delay alleged by the plaintiff is delay in providing drawing and location of work and this delay is major hurdle in proceeding with the work. Among the documents produced by the plaintiff, in the chief examination 42 CT 1390_Com.O.S.3577-2008_Judgment .doc of PW.1 Ex.P.1 to 49 are marked as Letters. Most of these documents are of the year 2004. Ex.P.1 to Ex.P.4, Ex.P.11 to Ex.P.14 are all of the year 2004 and are pertaining to the additional work of construction of building of CATVAC. Ex.P.5 dated 11/3/2004 and Ex.P.8,9,13 to 17 are of the subsequent dates pertaining to the first contract of building of AITF. Ex.P.19 onwards are the documents which are the representations made before the Engineer-in-charge, Chief Construction Engineer and The Chief engineer and the correspondences exchanged with them with regard to these claims. Ex.P.50 to 61 are the File containing vouchers, receipts, invoices etc, showing expenses made. As per the agreed terms, first contract work was to be completed by 19/10/2003 and the second work was to be completed by 27/3/2004. Therefore these documents at Ex.P.1 to Ex.P.18 are either subsequent to the initially fixed contract period in respect of first contract or of the fag end period fixed for completion of the second contract. These documents at Ex.P.1 to Ex.P.18 by excluding the application for EOT in Ex.P.6, Ex.P.7, Ex.P.10 and Ex.P.18 will not establish that the entire delay in progress of this contract work is attributable to the employer. No doubt, in the cross examination of DW.1, several letters are confronted and then marked as Ex.P.62 to Ex.P.95. Most of these letters are of the period earlier to 2004. Why these documents were not marked through PW.1 is not clear. Since the plaintiff has approached the court, it is the plaintiff who have to establish 43 CT 1390_Com.O.S.3577-2008_Judgment .doc its case by producing relevant documents at relevant time. The plaintiff has marked Ex.P.62 to Ex.P.95, during cross examination of DW.1 and has not marked the same and has not given any evidence with regard to these documents in evidence of PW.1.
31. Defendants have also produced several documents to establish their contention that delay in progress of the work is not exclusively attributable to the employer and there are several lapses and delay caused by the contractor as well. According to the defendants, for the delay or hindrance caused by the employer, as provided in clause 5 of the contract extension of time has been given. The defendants also contend that from the begining there was slow progress in the work and several letters were sent to the plaintiff asking to accelerate the work. In this connection, plaintiff has produced several correspondences made with the plaintiff. First of such correspondence is on 8/7/2002 by Ex.D.5. By this letter plaintiff was informed that considerable time is already consumed in making preliminary arrangement and Bhoomipooja has been conducted on 5/7/2002. In this letter, plaintiff is requested to expedite the work and maintain proportionate progress as per clause 2 of the agreement. So it is by Ex.D.5 for the first time the defendant has raised the issue of slow progress in the work and requested the contractor to expedite the work and to maintain proportionate progress and was asked to submit programme for progress of the work immediately before 12/7/2002. For this letter the 44 CT 1390_Com.O.S.3577-2008_Judgment .doc plaintiff had replied on 31/7/2002. On 2/8/2002, defendant gave reply to letter of the plaintiff and plaintiff was informed that based on the drawing available plaintiff can go ahead with the excavation and casting of footing and, plaintiff was asked to proceed ahead expeditiously based on working drawings issued and any specific clearance required shall be placed before Engineer-in-charge. Subsequently on 7/8/2002 Defendant again replied to the letter of the plaintiff dated 5/8/2002. Ex.D.5 of the defendant, clearly states that there was slow progress by the plaintiff and the plaintiff was asked to accelerate the work. Again in Ex.D.1 dated 3/10/2002 plaintiff was asked to accelerate and this letter is answered by the plaintiff by Ex.P.66 as confronted to DW.1. Similarly in the letter Ex.D.3 dated 14/5/2003 several quarries put by the plaintiff were answered and plaintiff was asked to accelerate the work. In Ex.D.4 letter dated 5/11/2004, issue of hold has been answered and it is mentioned that due to unavoidable hindrance hold is likely to be lifted in August 2005 with regard to the construction of CATVAC building. As discussed above as per the special conditions of contract for this hold period, compensation is not the remedy provided, but it is the extension of time which is liberally granted.
32. In Ex.D.8 dated 16/8/2002 the defendant has asked the plaintiff to excavation and then to floor finish and in letter dated 9/9/2002 produced as Ex.D.9 the list of architectural/structural drawing already released for executing the project has been listed in response to the letter 45 CT 1390_Com.O.S.3577-2008_Judgment .doc of plaintiff dated 3/9/2002. In Ex.D.10, letter dated 16/9/2002 defendant was asked to go ahead with the casting of pedestals and asked to expedite the finding work for integration area and utility area. In the letter dated 13/12/2002 produced at Ex.D.12, plaintiff was informed that the details of layout and finished levels of road work and details of underground crossings already furnished. Again by letter at Ex.D.14 dated 11/3/2003, plaintiff was asked to expedite the progress and isue of steel rods to be supplied is clarified. In Ex.D.17 dated 12/5/2003 the plaintiff was asked to go ahead with specification as indicated in the schedule of quantities under the work order.
33. In Ex.D.29 dated 4/8/2003 the plaintiff was informed about the delay and it is stated that the percentage of progress achieved at the end of July 2003 is only about 66% as against required 80% and plaintiff was asked to bestow personal attention upon the work of utility area, light court yard, harness lab, air lock, satellite integration hall, mechanical integration lab, extension to AC plant, roads, external sewerage, external fire fighting system, internal fire fighting system, internal PH works, internal water supply lines and was asked to accelerate and ensure that arrangement is made to provide adequate men and materials so as to complete all the works in time. In the letter Ex.D.32 dated 11/12/2003 the plaintiff was asked to take immediate action to arrange for sufficient work force and materials to ensure completion of work early.
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34. As per Ex.D.33, Chief Construction Engineer on 15/12/2003 asked plaintiff to come for review of the work and on 1/3/2004 by Ex.D.36, Chief Construction Engineer has sent letter to the plaintiff on review of the work. In this review it is opined that speedy action are required in the activities of granite flooring, polishing, integrated water proofing, false flooring, fixing aluminum windows/doors, vacuum dewatered flooring, false ceiling, structural steel work, external water supply etc. Ex.D.37 dated 26/3/2004 the plaintiff was asked to take action for procurement of granite slabs and ensure completion of work as per programme of AITF building and regarding CATVAC building it was informed that the facts mentioned in the letter of the plaintiff would be looked into and necessary drawing or clearance required for execution of the work will be arranged and it is mentioned that fall in the progress has to be made good to facilitate handing over of the building to the users. Then again there is a letter of the defendant dated 6/5/2004 by bringing to the notice of the plaintiff about slow progress of critical item of civil and other allied work and plaintiff is directed to take appropriate action to accelerate the progress of work and the work which are not finished are required to be attended early. In letter dated 18/8/2005 produced at Ex.D.43 again the list of works which are in balance and are to be accelerated have been highlighted and informed to the plaintiff. The defendant has also produced some more such letters sent to the plaintiff on different dates to accelerate the 47 CT 1390_Com.O.S.3577-2008_Judgment .doc work and giving clarification etc as per Ex.D.53 to Ex.D.61. The order of the Chief Construction Engineer on the claim put forwarded by the plaintiff is produced as Ex.D.62 and the order of the Chief Engineer is produced as Ex.D.44 which is dated 29/11/2006. On looking to these documents it is clear that from 8/7/2002 i.e. within one month of the commencement of the work the defendant has asked the plaintiff to accelerate the spead and has continuously written letters and gave clarifications whenever sought and also has informed about providing of drawing.
35. In the documents that are confronted to DW.1 in the cross examination, letters start with Ex.P.70 dated 31/7/2002 and then Ex.P.71 dated 5/8/2002, Ex.P.72 dated 7/8/2002 and thereon. These letters at Ex.P.62 to Ex.P.95 which are confronted to DW.1 no doubt say that there were hindrance caused by the acts of the employer also. Ex.P.62 dated 3/9/2002 show that the plaintiff has requested the defendant to give list of drawing proposed/planned for building and in the subsequent letters also the plaintiff requested to attend some of the hindrances that are coming in the way of progress in the work. In Ex.P.64 dated 27/2/2003 it was informed by the plaintiff that the work is suffering continuously since commencement of the contract for one reason or the other and the reasons are beyond the control and overall schedule is getting delayed and causing financial loss due to idling of the manpower etc. The plaintiff has stated about not releasing the MISB static bay foundation 48 CT 1390_Com.O.S.3577-2008_Judgment .doc details, gantry girder bracket levels, details of different equipment foundations at satellite building, structural construction drawings etc and it is generally stated that flow of drawings is not in line with progress of site and because of that they are forced to redo scaffolding works which is time consuming and it is also informed that they are not in a position to plan mobilization of manpower and material at a particular structure well in advance. So in this letter, plaintiff has specifically complained about hindrance caused in not supplying material, not providing drawing etc and also informed that due to this delay the plaintiff is not in a position to plan the mobilization of men and machinery and it has resulted in idling of manpower and plants. Similarly in other letters which are confronted to DW.1 and marked Ex.P.65 onwards, there are requests for providing early drawings and complaining about the delay, hindrance etc. In Ex.P.72, usage of tor steel issue has been raised and it is mentioned that the 28 MM steel required for the column is to be procured from the defendant and advance action shall not be taken to avoid all delays. These letters at Ex.P.62 to Ex.P.95 clearly show the concern raised by the plaintiff with the defendant and the hindrance that are caused in progress of work.
36. On consideration of all these correspondences exchanged between the parties and found in Ex.P.62 to Ex.P.95 and Ex.P.1 to Ex.P.18, Ex.D.1 to Ex.D.43 and Ex.D.45 to Ex.D.61, it is clear that both the parties have 49 CT 1390_Com.O.S.3577-2008_Judgment .doc expressed their dissatisfaction in the progress of the work. Both the parties have complained against each other for the lapses and the delay. Immediately within one month of the commencement of the work, letters are being exchanged about the delay caused and the defendant has been asking the plaintiff to accelerate the work and to reach the target of completion within the time schedule. The defendant on the other hand is also complaining that there is delay in giving drawing and delay in providing clearance, delay in finalization of external services etc which have affected the work. On going through all these letters which are only basis for the claim made by the plaintiff and also only basis for the contention of the defendants to reject the claim, it is clear that there were several hindrance in progress of the work. These hindrances have led to non completion of the work within the agreed time. It is also clear that for hindrance caused, defendants have granted extension of time as and when requested by the contractor by giving adequate reasons. In Ex.P.6, Ex.P.7, Ex.P.10 and Ex.P.18 the plaintiff while seeking extension of time has given the detailed reasons for seeking extension of time and defendants have considered the request of the plaintiff and have granted extension of time more than twice and admittedly the work is got completed by the same contractor. Fortunately contract has not gone to the extent of termination. Contract work is performed though with undue delay. Clause 5 of the contract clearly provides that for hindrance caused, contractor is entitle for 50 CT 1390_Com.O.S.3577-2008_Judgment .doc compensation. If the delay is caused by the contractor defendant is entitled to levy liquidated damages as provided in clause 2 of the contract. Though, while giving extension of time, plaintiff has reserved its right to claim compensation, defendant, while seeking extension of time has no reserved his right to claim compensation.
37. On looking to the entire documents, that have been placed before the court by either side, no doubt, there is delay that led to the extension of time and subsequent completion of the work after undue delay, but, delay cannot be attributed to only one of the party. There is delay in mobilization of men and materials by the contractor and there is some delay on the part of the employer in giving drawing. As per the evidence placed before the court, transporters strike has also affected the progress of the work. The transporters strike though has delayed the work for few days, according to defendants, they cannot be held responsible for the same. It is suggested in the cross examination of PW.1 that the transporters strike was known in advance and the plaintiff was required to arrange his plan accordingly. Though the witness has denied the same, loss if any caused to the plaintiff due to transporters strike cannot be put on the employer and moreover in the application given for extension of time the contractor had not reserved his right to claim such expenses on these grounds. Several letters exchanged between the parties, clearly show that there were delay attributable to both the parties and also the third party like 51 CT 1390_Com.O.S.3577-2008_Judgment .doc transporters strike, cooperation of other agencies and non availability of material which was to be provided by the defendant, suspension of work by the order for hold etc., but, contention of the plaintiff that entire delay or hindrance is caused by the employer cannot be accepted. When plaintff approached Chief Engineer claiming compensation, he also appears to have gone through the records and by his decision containing 89 pages as per Ex.D.44, he has rejected all the claims of the plaintiff and rejected the contention of the plaintiff that the defendants are responsible for the entire delay in progress of the work.
38. Plaintiff has stated about several delays and several reasons for the delay in progress of the work and has also highlighted each such heads. On going through the records produced by both the parties, majority of which are only correspondence had between the parties, delay cannot be exclusively attributable to the defendant. On several occasions, delay was of the contractor and the plaintiff has repeatedly asked the contractor to accelerate the work so that the work would be completed within the time schedule. Therefore, contention of the plaintiff, as highlighted in the plaint, stating that entire delay is attributable to the employer alone is not acceptable. Hence, employer alone cannot be held liable for the delay.
39. As provided in the contract clause 5, for the delay caused due to the hindrance that are attributable to the employer, extension of time has been given liberally. In 52 CT 1390_Com.O.S.3577-2008_Judgment .doc respect of the first work there is delay of 15 months 27 days for which extension was given and in second work there was delay of 23 months for which the extension of time was given. As regards the hold which is suspension of work for a particular period, clause 29 of the special conditions of contract clearly provided that extension of time is the remedy and the employer is not liable to pay any compensation. With regard to CATVAC work, in Ex.D.4 dated 5/11/2004 the plaintiff was informed that due to unavoidable hindrance the work is delayed and hold is likely to be lifted in August 2005. Therefore, for this entire period, plaintiff cannot blame the employer by stating that his men and materials and machinery has become idle. Wherever possible, employer appears to have taken care to provide clarification, clarity and information so that the work can proceed as planned. Still due to unavoidable circumstances there are some delay caused which are attributable to the employer. At the same time there are some delay which are attributable to the contractor.
40. For the delay attributable to the contractor the defendant was entitle to claim liquidated damages. However till 2008, defendants appear to have not claimed any such liquidated damages. After decision on the present claim by the Chief Engineer, defendants appears to have made an order for compensation of Rs.93,700/- plus which is not the subject matter of the present suit. As regards the plaintiff, for the delay caused which is attributable to the defendant 53 CT 1390_Com.O.S.3577-2008_Judgment .doc extension of time as provided in clause 5 was given. Apart from this as per clause 10cc of the contract, price escalation is also available. It is not stated that price escalation amount is not received by the plaintiff. The plaintiff contends that price escalation will not remedy the loss caused to the plaintiff and clause 10cc will not come in the way of present claim of the plaintiff. However, when the delay is not entirely attributable to the employer and for the delay caused and the hindrance on the part of the employer the extension of time is already given and the contractor while seeking extension of time has not reserved or not claimed compensation for the expenses incurred during the extended period and when some of the delay is even attributable to the contractor, the contractor will not be entitle for the expenses incurred during extended period of the contract as claimed in the present suit. Apart from this for some of the delay like hold and non availability of the materials, contract specifically bars claim of the compensation. In respect of transporters strike the defendants cannot be held liable. For the price escalation, plaintiff is already having remedy under Section 10cc of the contract.
41. Under these circumstances, plaintiff contractor has failed to prove that the work was delayed for the reasons which are totally attributable to the employer defendant. When the delay are not totally attributable to the defendant, the plaintiff would not be justified in seeking expenses by way of compensation as claimed in the suit. As clause 5 of the 54 CT 1390_Com.O.S.3577-2008_Judgment .doc contract provides for extension of time and do not contain any clause for payment of compensation and as the parties are governed by the contract, plaintiff would not be justified in seeking compensation for the work carried out during the extended period of contract.
42. The plaintiff has produced 12 box files containing vouchers, bills etc showing that the plaintiff has incurred expenses during this period. Even if the work was done in the earlier period of the contract, plaintiff would have incurred many of these expenses. Though the price of the goods and the labour might have increased by passing of time, for that, plaintiff is having remedy under Section 10cc of the contract as he is entitle for price escalation. At some situations like non availability of materials and non progress of the work due to hold etc, the contract expressly bars claim for compensation. Though plaintiff has produced several documents to show that it has incurred expenses like idling of owned and hired machineries, labour, office and site overhead during this extended period, for the reasons stated above the same cannot be claimed from the defendants, as the delay is not solely attributable to the defendants and for the hindrances extension of time is provided by the defendants.
43. Among the claim made by the plaintiff, there is a claim for Rs.17,36,989/- towards plant and machinery and owned equipment during the over stay period and Rs.16,27,666/- towards hired equipment. Chief Engineer in his order has noted that though the machineries owned by 55 CT 1390_Com.O.S.3577-2008_Judgment .doc the plaintiff were of the previous years, plaintiff has calculated rent at 32% by which within 3 years of purchase of the equipment, replacement cost will be recovered. Thereby the Chief Engineer has held that the claim is exorbitant. There is also claim on account of over head for the over stay on the site, head office, renewal of bank guarantee, insurance policy, expenses and scaffolding and material which is totally Rs.1,43,68,543/-, which is also held to be exorbitant by the Chief Engineer. Extra cost incurred on purchase of material during over stay period and extra cost incurred on labour during the over stay period are all claimed in the present suit and total claim of Rs.1,99,19,713/- is arrived. However, for the reasons stated above employer cannot be held liable to pay the alleged expenses incurred during this over stay period and even the contractor has not reserved his claim for compensation while seeking extension of time and as observed by the Chief Engineer, even the claim made by the plaintiff under different heads appears to be clearly exorbitant and for some of the period cover the period of hold and non availability of steel for which contract specifically bars claim for compensation. These period cannot be even bifurcated from the claim made as there is no clear chart given by the plaintiff by highlighting such expenses incurred for a particular period.
44. Though PW.2 has given evidence on the quantification of the claim, as being working in accounts department of the plaintiff, witness has stated that based on 56 CT 1390_Com.O.S.3577-2008_Judgment .doc the voucher that are provided, he has calculated the same. Extra cost that has been calculated by the plaintiff as mentioned by PW.2, is for the period from 27/3/2004 to 31/12/200. What steps the plaintiff has taken to mitigate the loss is also not stated. For some period suspension of work for particular period was ordered in advance and contractor was required to take steps to reduce work force to avoid idling. On looking to evidence of PW.2 and the documents produced, quantification of such expenses to Rs.1,99,19,713/- is not completely justified. As and when these expenses are incurred during the period from 27/3/2004 to 31/12/2005 the plaintiff appears to have not brought it to the notice of the defendants and only by making the claim before Engineer-in-charge by Ex.P.19 the plaintiff appears to have made first claim and then also the second claim and then the consolidated claim and arrived at a figure of Rs.1,99,19,713/-. Correctness of these bills, vouchers and receipts produced in Ex.P.50 to 61 and plaintiff placing the same before the defendants in the regular course of transaction as and when they are raised is also not established. These documents in the files do not appear to contain any counter signature of defendants. On consideration of these oral and documentary evidence placed, plaintiff has failed to justify the claim for Rs.1,99,19,713/- with factual figure and has also failed to prove that these expenses incurred were put to the notice of the defendant as and when the expenses are incurred.
57CT 1390_Com.O.S.3577-2008_Judgment .doc
45. Learned counsel for the plaintiff has relied on the decision of Hon'ble Supreme Court reported in (2007) 13 SCC 43 (K.N.Sathyapalan dead by LRs v. State of Kerala and another) wherein the Hon'ble Supreme Court has held that where the failure of one of the parties to fulfill its contractual obligations has a direct bearing on the work to be executed by the other party, the arbitrator can compensate such other party for the extra cost incurred by it consequent to such failure of the first party. In the present case, failure of the defendants to perform its part of the contract and failure to fulfill its contractual obligations is not established and it is not even established that the failure of the defendant to fulfill its contractual obligations had direct bearing on the work to be executed. In the present case the work is executed, but there was some delay and the delay is attributable to both the parties and for the delay extension was given and for the price escalation three is remedy provided in the contract itself and while seeking extension, contractor has not reserved his right to claim compensation. As such this decision do not help the plaintiff.
46. Learned counsel for the plaintiff has also relied on the decision of Hon'ble Supreme Court reported in (2009) 10 SCC 354 (Asian Techs Limited v. Union of India and others), which is with regard to finality of the decision of the CWE provided in the contract for fixation of rates and the Hon'ble Supreme Court on the facts of the case has held that the arbitrator is within the jurisdiction to decide the matter in 58 CT 1390_Com.O.S.3577-2008_Judgment .doc question. In this decision, issue was also with regard to contractors claim for further compensation after issuance of full and final discharge/ settlement voucher/ no dues certificate and the Hon'ble Supreme Court has held that even in such case the court can go into the question whether the liability has been satisfied or not. This decision is also not applicable to the present fact.
47. In the entire plaint or in evidence, plaintiff has not stated as to what is the total amount that has been received by the plaintiff, with regard to these works. Admittedly the claim is not for the work done in the contract period. The first contract was given for Rs.11,74,58,180 and second work was given for Rs.6,00,45,686/-. Dispute raised by the plaintiff is not in respect of this amount of the contract. Even the plaintiff has not stated as to when final bill was submitted and what was the final bill and when it was cleared and what is the amount totally received by the contractor from the employer till now and what is the amount received as price escalation and price escalation is calculated as on which date etc. Since such information is not placed by the plaintiff it is difficult to accept even the calculation made by the plaintiff. Whether for engaging such machinery and men, permission was taken and whether that was necessary for the particular work etc are also not established by the plaintiff.
48. For the discussions made above, plaintiff has failed to prove that the work was delayed due to the reasons 59 CT 1390_Com.O.S.3577-2008_Judgment .doc totally attributable to the defendants. though the delay in the work is admitted fact, plaintiff has failed to prove that the delay is caused exclusively by the defendant. Plaintiff has also failed to show that the plaintiff has suffered loss and incurred expenses due to delay in completion of the work, over and above the amount already received as per the contract, as quantified in the plaint. Even if the plaintiff has suffered loss and has incurred expenses, for the reasons stated above, plaintiff is not entitle for recovery of the suit claim amount from the defendants. Accordingly issues No.1 and 2 are answered in the Negative.
49. Issue No.4 : On the contention of the defendant that the rejection of the claim by the Chief Engineer was by means of speaking order, Issue No.4 was framed. Whether it is by a speaking order or otherwise, that will not come in the way of this court considering the claim of the plaintiff, as this court is not sitting in appeal against order of Chief Engineer. The contention of the plaintiff is that there is no such speaking order on 29/11/2006 and that no such order is passed within the time of 90 days by the Chief Engineer. However, Ex.D.44 Order show that it is a speaking order and containing pages 1 to 86. As such the defendant has shown that the Chief Engineer has rejected the claim of the plaintiff by a speaking order. As such this issue is answered in the affirmative.
50. Issue No.3 & 5 : In the written statement, defendants have contended that the plaintiff had done some 60 CT 1390_Com.O.S.3577-2008_Judgment .doc defective work and has not removed the defects. Though it is contended in the written statement and even stated by DW.1 that, some such defects are got rectified by the defendants through third party, there are no such claim made by the defendants, by quantifying such expenses incurred for rectifying defects. There is no dispute between the parties that the work entrusted to the plaintiff has been completed, though not in originally agreed time. It is also not in dispute that during pendency of the first work with regard to AITF the second work as additional work is also entrusted to the same plaintiff. Plaintiff contends that as the plaintiff's work was satisfactory, additional work was entrusted to the plaintiff by letter of intent dated 27/3/2003 for construction of CATVAC. However, defendants contend that as it was convenient to get the work done from the same contractor and as the plaintiff was ready to do the work on the same condition, this work was also entrusted to the plaintiff and such entrustment of additional work of construction of building do not presuppose that the defendant was satisfied with the work of the plaintiff of AITF. Moreover, by the time, additional work of the construction was given to the plaintiff on 27/3/2003 no much progress was made in the first work of AITF.
51. On looking to entire materials, as rightly contended by the defendants, additional work of construction of building for CATVAC appears to have been given to the plaintiff as it is additional work and this contractor was already working on the main work of AITF and it is convenient 61 CT 1390_Com.O.S.3577-2008_Judgment .doc and economical. Therefore, merely because additional work of construction of the building for CATVAC was given to the same Contractor after nearly about 9 months of giving contract for the work of AITF, it cannot be said that, at that time itself, plaintiff had proved its quality of work and that the defendant was satisfied with the quality of work done by the plaintiff. At the same time, it also cannot be said that the work was unsatisfactory. If the work done by the plaintiff during that time was not satisfactory to the defendant, it would not have not entrusted this work to the plaintiff. Moreover, by that time, work of first contract had not come up to considerable level, though, the time fixed was fast approaching. The defendants' contention that the plaintiff had done defective work and has not removed the defect is also the contention taken only as a defense and there is no such proof provided by the defendant to show that the work done by the defendant was defective. The defendants have not made any claim for expenses incurred in getting the defective work corrected. On looking to the entire contention of the parties, present suit is not in respect of even defects in the work already done. There is no dispute that the work is done by the plaintiff and is completed. Only issue in the suit is that the work was not completed in time due to several hindrances and due to the lapses on the part of defendants and during this delay, plaintiff incurred expenses. The defendant on the other hand contends that all the delays are not that of the defendant and the plaintiff is not entitle for the 62 CT 1390_Com.O.S.3577-2008_Judgment .doc expenditure mentioned in its claim towards expenses incurred by prolongation of the work. On the other hand the defendant contends that price escalation is already provided under clause 10cc and whenever there were hindrances, extension of time was given to the plaintiff for carrying out the work and as such, defendant is not entitle to pay the amount claimed.
52. On looking to these contentions, defendants are not making any claim on the basis of defective work carried out by the plaintiff and defendant is not seeking any adjustment of the expenses incurred to get the defective work corrected, from the claim of the plaintiff and is also not making any counter claim. As such, this issue regarding defect in the work done by the plaintiff is also beyond the scope of the present suit and in fact the same is not even established.
53. As stated above, plaintiff's contention that by awarding additional work of construction of CATVAC, defendants were satisfied with the progress achieved by the plaintiff, also cannot be accepted as entrusting of additional work of construction of CATVAC to the plaintiff cannot be a certificate of appreciation of work already done by the plaintiff. Anyhow, when additional work was given on 27/3/2003, no much progress was made in the first contract work of AITF and the parties were already exchanging letters about several requirements. In fact as seen in Ex.D.1 on 3/10/2002 itself the defendant has sent letter to the plaintiff 63 CT 1390_Com.O.S.3577-2008_Judgment .doc stating that 3 ½ months have already lapsed since issue of work order and the work achieved upto end of September 2002 is only 6% as against progress to be achieved as per clause 2 of the contract and it is also informed to the plaintiff that the work under different area as mentioned in its letter is to be accelerated. Similarly on 10/10/2002, plaintiff wrote a letter stating about no receipt of any execution, drawings and by Ex.D.2 defendants have replied the same. Therefore it cannot be said that by the time the additional work of CATVAC was entrusted to the plaintiff, the defendants were satisfied with the progress achieved by the plaintiff. Apart from this, whether the work of the plaintiff was satisfactory or not is also beyond the scope of the present suit, as work is completed and the present claim is only in respect of the claim made for the expenses incurred during the prolongation period. The quality of work is not an issue to be decided in the present suit. Therefore, defendant is satisfied with the work done by the plaintiff and the progress achieved at the time of defendant awarding additional work of construction with CATVAC is not the relevant issue. Therefore, these issues also, do not arise for consideration in this suit and are accordingly answered.
54. Issue No.6 & 7 : In the plaint there is reference to some deduction made by the defendants by letter dated 1/1/2008 whereby, defendants have claimed liquidated damages of Rs.93,970/- from the plaintiff for the alleged delay for the period from 1/10/2005 to 28/2/2006. DW.1 in his 64 CT 1390_Com.O.S.3577-2008_Judgment .doc cross examination has stated that in respect of the first work no such liquidated damages is claimed and only in respect of second work CATVAC this claim is made. The plaintiff has sated that this levy of compensation after lapse of 3 years and 2 years respectively after completion of the works is illegal and uncontractual and is only to harass the plaintiff and is liable to be struck down. On the other hand, defendants have attempted to justify the levy of liquidated damages of Rs.93,970/-. Plaintiff has contended that before levying the liquidated damages, service of show cause notice was required and as the same is not done, claim is unjustified.
55. On looking to the entire case of the parties, present suit is in respect of claim of the plaintiff for Rs.1,99,19,713/- as expenses incurred due to prolongation of the work beyond the original fixed time schedule. Expenses incurred by the plaintiff due to this prolongation of work is the claim that is to be adjudicated in the present suit and the same was even before the Chief Engineer and before the Chief Construction Engineer and before the Engineer-in-charge. This claim of Rs.93,970/- as liquidated damages is subsequent to the order of the Chief Engineer dated 29/11/2006 and it is dated 10/1/2008. Therefore, there was no occasion for the parties to agitate on this liquidated damages levied by the defendant. Plaintiff has not made it clear, as to whether this amount of Rs.93,970/-is already recovered from the plaintiff's bill by the defendant. In this suit, plaintiff has not prayed for any relief, in respect of this claim of defendant for liquidated damages.
65CT 1390_Com.O.S.3577-2008_Judgment .doc Similarly, defendants also have not made any counter claim seeking this amount of Rs.93,970/- from the plaintiff as liquidated damages as per the order dated 10/1/2008. Admittedly before passing this order on 10/1/2008, no show cause notice was given to the plaintiff. Since claim of Rs.93,970/- made by the defendant as liquidated damages by order dated 10/1/2008 for the period from 1/10/2005 to 28/2/2006, is not challenged in the present suit by the plaintiff and relief is not even claimed by way of counter claim by defendants, the dispute in respect of claim of Rs.93,970/- made by letter dated 10/1/2008 is beyond scope of the present suit. The correctness justification and entitlement of the defendant for this amount, legality or otherwise of this order and the passing of the order without giving show cause notice to the plaintiff as contended by the plaintiff etc are beyond the scope of the present. As there is no declaration or any order prayed by the plaintiff in respect of this order dated 10/1/2008 and this amount of Rs.93,970/- is not part of the suit claim of Rs.1,99,19,713/- and there is no counter claim on the basis of this order dated 10/1/2008 by the defendant and the defendant is not even seeking any set off of this amount in the alleged claim of the plaintiff etc, and as in respect of this claim, clause 25 of conditions of contract is also not followed, Issue No.6 and 7 do not arise for consideration in the present suit. Accordingly they are answered.
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56. ISSUE No.8 : For the discussion made on above issues, the plaintiff is not entitle for Rs.1,99,19,713/- with interest @18% per annum as claimed in the suit. Since it is not established that entire delay is attributable to the defendants and the entitlement of the plaintiff to the expenses by way of compensation for the prolonged period of contract is not established, plaintiff is not entitle for recovery of the suit claim amount with interest from the defendants. Accordingly issues No.8 is answered in the negative.
57. ISSUE No.9 : For the discussion made on above issues, following order is passed:
ORDER Suit of the plaintiff is dismissed.
In the circumstances of the case, there is no order as to costs.
[Dictated to the Judgment Writer; transcript thereof corrected, signed and then pronounced by me, in the Open Court on this the 13th day of April 2022] [Ravindra Hegde] LXXXIII Additional City Civil Judge.
BENGALURU.
ANNEXURE
1. List of witnesses examined on behalf of Plaintiff:
PW.1 Indupuri Nanajee
PW.2 Samiran Kumar Bhattacharya
67
CT 1390_Com.O.S.3577-2008_Judgment .doc
2. List of witnesses examined on behalf of Defendants:
DW.1 Sudhindra Desai
3. List of documents marked on behalf of Plaintiff:
Ex.P.1to49 : Letters
Ex.P.50 to 61 : 12 box files.
Ex.P.62 to 95 : Letter correspondences.
4. List of documents marked on behalf of defendants:
Ex.D.1 to D.65 : Attested copies of letters.
[Ravindra Hegde] LXXXIII Additional City Civil Judge.
BENGALURU.
***