Delhi District Court
Dharamvir vs Delhi Development Authority on 23 November, 2023
IN THE COURT OF MS. RUCHIKA SINGLA,
ADDL. DISTRICT JUDGE-03, NORTH-WEST DISTT.,
ROHINI COURTS, DELHI
23.11.2023
RCA DJ no. 17/19
DHARAMVIR VS. DDA
and
RCA DJ no. 24/19
DDA Vs. DHARAMVIR
C O N S O LI DAT E D J U D G M E NT
1.There are two appeals preferred against the order/judgment dated 06.02.2019 vide which the court of Ms. Naveen Kumar Kashyap, Ld. SCJ-cum-RC, Rohini Courts, Delhi (hereinafter referred to as the Trial Court), has partly decreed the suit titled as "Dharamvir Vs. DDA, suit no. 53171/12/12" (hereinafter referred to as the suit).
2. Both the parties are aggrieved by the impugned judgment passed by the Ld. Trial Court wherein the suit of the plaintiff was partly decreed. As both the appeals involve common issues, both the appeals are disposed of vide a common judgment.
3. For the sake of convenience, the parties are referred as per their status as before the Ld. Trial Court.
RCA DJ no. 17/19DHARAMVIR VS. DDA and RCA DJ no. 24/19 DDA Vs. DHARAMVIR Page 10 of 10
4. I have heard the arguments on behalf of both the parties. I have also gone through the record.
5. Briefly stated, the facts of the case in the plaint were that the plaintiff was awarded a contract by the defendant for the development of 400 hectares of land at Sec-27 and Sec-28, Phase-IV and V, Rohini for providing exterior finish to annexe building of command tank no.1, Sec-29, Rohini vide agreement no. 4/EE/RPD-1/DDA/2010-11. The work on the said contract was supposed to commence on 05.04.2010 and was to be completed within one month i.e. by 04.05.2010. The tendered amount for the work was Rs.5,08,141/-. However, the work could not completed by the plaintiff on time due to delays on the part of the defendant for not providing a clear hindrance free site and for not providing the cement as required by the defendant.
6. Nevertheless, the plaintiff completed the work and submitted his bills with the defendant but out of the total bill of Rs.3,82,818/-, only part payment was made by the defendant. It was stated that the plaintiff had spent certain expenditure for procurement of extra items for providing a fixing of scaffolding system on the exterior side to the tune of Rs. 1,57,872/-. However, this amount was not paid by the defendant. Further, the plaintiff had claimed a sum of Rs. 1 lakhs towards damages due to the prolongation of the contract by the defendant as the plaintiff had to maintain a salaried staff at the RCA DJ no. 17/19 DHARAMVIR VS. DDA and RCA DJ no. 24/19 DDA Vs. DHARAMVIR Page 10 of 10 site and work could not be completed due to non availability of the site on the part of the defendant.
7. Vide the impugned judgment, the suit of the plaintiff was partly decreed and the plaintiff was awarded a sum of Rs. 1,57,873/-. However, the damages to the tune of Rs. 1 lakh for the prolongation of the contract was not granted by Ld. Trial Court. Hence, the present appeal has been filed for the grant of that amount. Also, claim no. 3 was towards the interest @ 12% p.a, claim no. 4 was towards Rs.5000/- as cost of the notice and claim no. 5 was towards the cost of the proceedings of the suit, which were denied by Ld. Trial Court. Following grounds have been taken by the plaintiff in the present appeal:-
(a) That the Ld. Trial Court has turned down the claim no. 2 to 5 without stating any reason.
(b) That the delay in the work was abnormal and attributable only on the part of the defendant as the defendant did not make available in the working site even after 07 months of the stipulated date of the commencement of the work.
(c) That the rates applied while preparing estimates were prevalent in the year 2007 as per DSR 2007 while the work was delayed and executed in 2011-12 and hence, the plaintiff was entitled to the rates as per DSR 2011-12.RCA DJ no. 17/19
DHARAMVIR VS. DDA and RCA DJ no. 24/19 DDA Vs. DHARAMVIR Page 10 of 10
(d) That the Ld. Trial Court did not discuss the judicial citations which were placed on record by the plaintiff while declining the claim no. 2 to 5 of the plaintiff.
(e) That the judgment of the Ld. Trial Court is liable to be set aside as the court has not kept in consideration Section 55/73/74 Indian Contract Act.
8. It is argued by the Ld. Counsel for the plaintiff that perusal of the evidence produced by the defendant shall show that the defendant has admitted that the site was unworkable and the delay was on the part of the DDA. Hence, it is submitted that the plaintiff is entitled to the compensation for the delay caused in the execution of the contract. Further, it is submitted that no delay was attributable to the plaintiff as the material was not available due to a judgment announced by Hon'ble Punjab and Haryana High Court as the stone quarries were banned. Further the defendant was to supply certain quality of the cement for the completion of the work but cement was provided only after 07 months of the stipulated commencement date. Hence, it is stated that the plaintiff is entitled to the said damages. Further, the plaintiff also seeks allowing of the claim no. 4 towards the cost of the notice.
RCA DJ no. 17/19DHARAMVIR VS. DDA and RCA DJ no. 24/19 DDA Vs. DHARAMVIR Page 10 of 10
9. Ld. Counsel for the defendant has strongly opposed the appeal. It is submitted that the defendant has also preferred a separate appeal challenging the impugned judgment of the Ld. Trial Court. It is submitted that no charges are payable by the defendant to the plaintiff. It is submitted that the plaintiff failed to complete the work on time. There was no fault on the part of the defendant in the prolongation of the contract. Time was the essence of the contract between the parties. Hence, as the contract has been admittedly completed by the plaintiff after a delay of 339 days, no damages are liable to be paid by the defendant to the plaintiff.
10. Further, it is stated that the plaintiff has sought the amount of Rs. 1,57,873/- towards additional cost incurred by the plaintiff but no such bills have been placed on record by the plaintiff. Hence, the Ld. Trial Court had erred in granting that amount to the plaintiff. Hence, the judgment of the Ld. Trial Court is liable to be set aside in this regard as the Ld. Trial Court granted this amount to the plaintiff without any evidence qua the same.
11. Further, it is stated that the contract was awarded to the plaintiff in the year 2010. In the contract it was specifically mentioned that the rate shall be as per DSR 2007. Hence, the claim of the plaintiff that the rate should be awarded to him as per DSR 2011 is unwarranted. Further, the same is beyond the pleadings. Hence, it is RCA DJ no. 17/19 DHARAMVIR VS. DDA and RCA DJ no. 24/19 DDA Vs. DHARAMVIR Page 10 of 10 submitted that the appeal filed by the plaintiff be dismissed and the appeal filed by the defendant be allowed.
12. Record perused. In the present matter, it is an admitted fact that there was a contract between the parties. The time schedule of the contract is as under:-
Date of the start of the work 15.04.2010 Stipulated date of completion 04.05.2010 Actual date of completion 29.04.2011
13. Hence, it is an admitted fact that there was a delay of 339 days in the completion of the contract. It is not in dispute that part payment of the final bill which was raised by the plaintiff to the defendant was allowed by the defendant and duly paid to the plaintiff.
14. In the present matter, as per the prayer clause of the appeal filed by the plaintiff, he seeks the setting aside of the judgment and decree in respect of claim no. 2, 4 and 5. There is no prayer in respect of claim no. 1 which was allowed by the Ld. Trial Court i.e. the claim towards the extra expenditure incurred by the plaintiff to the tune of Rs. 1,57,872/-. The plaintiff has not sought the claim at the rate of DSR 2011 anywhere in his plaint. This averment has been taken first time in the present appeal. Hence, the plaintiff is not entitled to RCA DJ no. 17/19 DHARAMVIR VS. DDA and RCA DJ no. 24/19 DDA Vs. DHARAMVIR Page 10 of 10 the enhanced rate of payment as per DSR 2011. At the cost of repetition, there is no prayer in the appeal in respect of the claim no.1. It is also pertinent to note that even the claim no. 1 which was decreed in the favour of the plaintiff was sought as per DSR 2007 by the plaintiff himself in the original suit. Hence, the plaintiff is estopped from claiming the enhanced rate as per the rates of DSR 2011 in the present appeal.
15. In respect of the claim no. 1 which has been decreed in the favour of the plaintiff, as mentioned above, the defendant has filed an appeal seeking setting aside of that decree stating that the said claim was allowed by Ld. Trial Court on the pleadings of the plaintiff alone that he had incurred an additional cost of Rs. 157872/- as he had to purchase extra items for providing and fixing scaffolding system on the exterior side. However, no such bills were filed by the plaintiff on record during the course of the trial. Hence, in the absence of any evidence that this amount was actually incurred by the plaintiff for purchasing of additional material, the same could not have been granted by the Ld. Trial Court. Hence, the judgment is liable to be set aside to this extent.
16. Record perused. Perusal of the evidence led by the plaintiff in the suit shows that he examined only himself as PW-1. In his testimony, he produced only certain notices which were exchanged RCA DJ no. 17/19 DHARAMVIR VS. DDA and RCA DJ no. 24/19 DDA Vs. DHARAMVIR Page 10 of 10 between the parties. As pointed out by Ld. Counsel for the defendant, the plaintiff did not produce any record to show that the plaintiff had incurred any additional cost on any additional infrastructure which he had to purchase for the execution of the contract. Hence, in the opinion of the court, the Ld. Trial Court erred in decreeing the claim no. 1 of the plaintiff. Hence, as the plaintiff failed to prove that any additional cost was incurred by him, the impugned judgment in respect of claim no. 1 is liable to be set aside.
17. Regarding the claim no. 2, as mentioned above, the plaintiff has sought damages due to prolongation of the contract. As averred by him, he had to pay wages/ salary to his staff for the additional period which was incurred in the completion of the contract. Again no evidence has been led by the plaintiff in this regard before the Ld. Trial Court. As mentioned earlier, only certain communication which was exchanged between the parties was proved on record. The plaintiff did not prove on record any such document vide which he can show that he had paid any wages/salary to his staff which was allegedly deployed at the site when the site was not in a working condition. The plaintiff has also not placed on record any TDS certificate or his balance sheet or his profit/ loss statement or any such statement as per which it can be proved on record that he had paid the said wages. Hence, in the opinion of the court, there is no RCA DJ no. 17/19 DHARAMVIR VS. DDA and RCA DJ no. 24/19 DDA Vs. DHARAMVIR Page 10 of 10 error or infirmity in the judgment of the Ld. Trial Court in respect to this claim.
18. At the cost of repetition, as the plaintiff has himself failed to prove that he had paid such a cost due to the prolongation of the contract, he is not entitled to the damages with regards the same. Ld. Counsel for the plaintiff has submitted that Ld. Trial Court did not discuss the judgments which were filed on record by the plaintiff in support of this argument. Perusal of record shows that the plaintiff has relied upon a judgment of the Hon'ble High Court of Delhi in DDA Vs. Polo Singh 101(2002) DLT 401 wherein the Hon'ble High Court of Delhi has observed that damages for loss of profit can be granted. However, in the present matter, as mentioned above, the plaintiff has failed to prove that he had incurred any loss of profit. There is no such document on record to show that the plaintiff incurred any loss due to the prolongation of any contract. Hence, the plaintiff is not entitled to recovery of the said claim.
19. The claim no. 4 and 5 are in respect of the cost of the legal notice and the litigation expenses. Same is a totally discretionary relief. Perusal of the judgment shows that the cost of the suit was awarded to the plaintiff. However, as the appeal of the defendant is allowed, the said order is also set aside.
RCA DJ no. 17/19DHARAMVIR VS. DDA and RCA DJ no. 24/19 DDA Vs. DHARAMVIR Page 10 of 10
20. In view of the above discussion, the appeal preferred by the plaintiff is dismissed while the appeal preferred by the defendant is allowed and the impugned judgment in respect of claim no. 1 and cost of the suit is set aside.
The Trial Court record be sent back to the Ld. Trial Court along with copy of this order. Decree sheet be prepared accordingly. No order as to cost. The present appeal file be consigned to Record Room. Digitally signed RUCHIKA by RUCHIKA SINGLA SINGLA Date: 2023.11.23 16:15:24 +0530 (RUCHIKA SINGLA) ADJ-03 (N/W) Rohini Courts :Delhi/23.11.2023 RCA DJ no. 17/19 DHARAMVIR VS. DDA and RCA DJ no. 24/19 DDA Vs. DHARAMVIR Page 10 of 10