Delhi High Court
Tirupati Cement Products vs Delhi Jal Board & Anr. on 20 February, 2020
Equivalent citations: AIRONLINE 2020 DEL 577
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 17th October, 2019
Decided on: 20th February, 2020
+ CS(COMM) 235/2017
M/S.TIRUPATI CEMENT PRODUCTS ..... Plaintiff
Represented by: Mr. S.K. Sharma , Mr. Sadaf
Iliyas Khan, Advocates.
versus
DELHI JAL BOARD & ANR ..... Defendants
Represented by: Ms. Sangeeta Bharti, ASC for
DJB with Mr. Ashish Kumar,
Advocate.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By the present suit, the plaintiff seeks decree against defendant for
recovery of ₹6,16,33,177/- with interest @ 12% per annum both pendente
lite and future interest till realization of the whole of the decretal amount be
passed in favour of the plaintiff.
2. Summons in the present suit were issued to defendants on 2 nd May
2017 and after the defendants filed the written statement following issues
were framed on 8th May 2018:
i. Whether the delay- beyond 30th September, 2010 and till 23rd
July, 2012 in completion of the works contracted by the
defendants to the plaintiff is on account of the inability of the
defendants, to provide necessary cooperation vis-a-vis seeking
permissions/ grants from various other government
authorities, that is, NHAI, DIAL, Delhi Traffic Police etc.?
OPP
ii. Whether under the terms/of the contract, particularly Clause
5.55 of Section (V) of Special, Conditions of contract, the
CS(Comm) 235/2017 Page 1 of 18
exclusive obligation to take all necessary approvals from, the
authorities and from anyone else required to give permission
to complete the works was of the plaintiff and the role of the
defendants was only of assisting in Writing letters? OPD
iii. If the above issues are decided, in favour of the plaintiff,
whether the plaintiff had deployed any tools, plants and
manpower for any additional days and if so, what additional
amount was incurred by the plaintiff on this account and to
what amount is the plaintiff entitled to from the defendants
therefor? OPP
iv. If the issues No.(i) and (ii) are decided in favour of the
plaintiff, whether there was any price variation in
commodities required for the works between the said dates
and what additional amount was incurred by the plaintiff on
this act and to what amount is the plaintiff entitled from the
defendants on the said account? OPP
v. If the issues No.(i) and (ii) are decided in favour of the
plaintiff, then whether there was any price variation of Rs.
134649.75 paise for petrol and lubricants and whether the
plaintiff has incurred the said expenditure? OPP
vi. Whether the plaintiff has incurred price variation in the sum of
Rs.2,56,46,776.62 paise on account of delay and if so whether
the plaintiff is entitled to recover, the same from the
defendants? OPP
vii. Whether the defendants have, admitted the delay to be on their
part by not claiming compensation for the delay from the
plaintiff under Clauses 2.1, 2.2., 5.1, and 5.2 of-Section III of
the Contract? OPP
viii. Whether the suit claim is within time? OPP
CS(Comm) 235/2017 Page 2 of 18
ix. If the plaintiff is' found entitled to any monies from the
defendants, whether the plaintiff is entitled, to any interest
thereon and if so at what rate and for what period? OPP
x. Relief.
3. The plaintiff is a partnership firm and is a registered contractor with
Delhi Jal Board (Defendant No. 1 herein). The Executive Engineer
(Defendant No. 2 herein) of Delhi Jal Board invited the tender through
public notice for execution of the work of P/L/J Internal Sewage System in
rural villages of Khera, Paprawat, Roshanpura and Deendarpur along with
peripheral sewer by trenchless method in Najafgarh area. The plaintiff
submitted the tender for completion of the assignment/tender work in
response to the public notice and pursuant to the acceptance of the bid
submitted by the plaintiff he entered into an agreement for the execution of
the said work for the approved tendered amount of ₹20,26,88,567/- which
was 11.05% below the estimated cost of ₹22,78.67,979/- put to tender vide
work order no. DJB/EE(C)/DR.XIV/2009/404 dated 16th March 2009.
4. As per the tender agreement, the stipulated period for completion of
the work was eighteen months from the commencement of the work that is
1st April 2009 and was to be completed on 30 th September 2010. As per the
award letter the time stipulated to complete the work was 18 months which
was to be calculated fifteen days from the date of the work order dated 16 th
March 2009. The work was completed by the plaintiff to the satisfaction of
the defendants and the completion was recorded on 23rd July 2012.
5. Case of the plaintiff is that it performed all the formalities and
technicalities well in time but the tender work was delayed because the
CS(Comm) 235/2017 Page 3 of 18
defendants were unable to provide the necessary cooperation vis-a-vis
seeking permissions/grants from NHAI, DIAL, Delhi Traffic Police and
various other government agencies/authorities. Due to the delays the time
for completion of work was further extended on various occasions by the
defendants. The project manager of the Plaintiff, Madanjit Singh, power of
attorney in the present case got the tender work executed under his own
supervision with a delay of 22 months beyond the period of 18 months. He
approached the defendant time to time for seeking cooperation and
assistance for necessary permissions from the appropriate authorities.
6. The delay of 22 months in completion of work was completely and
entirely attributed to the defendants, which delay further overburdened the
plaintiff causing escalation of cost of labour, minimum wages of clerical
and non -technical supervisory staff and increase in all commodities prices
which were to be paid by the plaintiff. As the delay was on part of the
defendants, the plaintiff did not make any formal request for extension of
time. The defendants granted extension to the plaintiff without levying any
compensation upon plaintiff. Therefore, the plaintiff was entitled to
damages on account of delay in execution of the tendered work as per the
contract agreement beyond the stipulated date of completion, due to which
the actual cost of work done came to ₹21,75,68592/- as against the original
tendered amount of ₹20,26,88,567/-.
7. It is further averred in the plaint that the reasons for delay in
execution of the work were duly recorded by the officials of defendant no.
2 in the register/book maintained by them. The defendants also failed to
provide the clear site and further failed to remove the hindrances from the
CS(Comm) 235/2017 Page 4 of 18
site which also resulted in the prolongation of work and further affected the
working of the plaintiff and resulted in the idle losses.
8. In July 2012, after the completion of work the plaintiff approached
the defendant and took up the issue of escalation of charges/amount and
also the damages due to delay and requested for payment of the escalation
of costs of material, labour and other incidental affairs and damages.
9. According to the plaintiff the defendants admitted their fault and
assured the Plaintiff that the escalation as well as the damages amount
would be paid to the plaintiff at the time of making of the final payment of
the bill. On this assurance plaintiff did not initiate any proceeding for
recovery against the defendant.
10. On 2nd July 2014 the defendants paid the bill amount to the Plaintiff
with the assurance to pay the excess amount. It is averred in the plaint that
no escalation/damages were paid by the Defendant as assured and the
plaintiff accepted the payment of the bill under compulsion as otherwise
the payment would have been deferred further.
11. The plaintiff claimed the following amount from the defendant vide
the letter dated 17th November, 2015.
S.No. Purpose Amount
1. Expenses per day due to delay against the ₹2,25,74,250/-
tools and plants and manpower including
engineering, technical and other staff (for
1143 days delay)
2. Price variation for all commodities ₹13277500.73/-
3. Price variation for Petrol and Lubricants ₹134649.75/-
4. Price variation for Labour ₹256,46,776.62/-
CS(Comm) 235/2017 Page 5 of 18
5. TOTAL ₹6,16,33,177/-
12. The plaintiff wrote a letter dated 17th November 2015 for payment of
the aforesaid escalation/damages for a sum of ₹6,16,33,177/-. Thereafter
the Plaintiff sent a legal notice dated 21 st June 2016 demanding the
escalation/damages amount with interest. Since this amount was not payed,
plaintiff filed the present suit.
13. Defendant filed the written statement taking the plea that the present
suit is barred by limitation as the completion certificate was issued to the
plaintiff on 17th September 2013 for the work completed in July 2012 and
the suit filed on 1st March 2017 that is after three years was barred by
limitation. The Plaintiff has not placed on record any document to show
that the plaintiff received the payment in respect of a particular bill as final
payment under compulsion. The Defendant issued a performance report of
completed work on 17th September 2013 and nothing else.
14. The payment made by the defendant on 2nd July 2014 would not ipso
facto extend the period of limitation particularly when no written assurance
was given by the defendant for any balance payment. It is further submitted
that claim of the Plaintiff is completely an afterthought as the bill raised by
him from time to time were duly paid by the Defendants and no
outstanding amount was remaining.
15. There is no document on record to show any protest on receiving the
payment in respect of a particular bill as final payment under compulsion.
Since the Defendants made the complete payment of the bill on 02nd July
2014 and same was accepted by the plaintiff as the final payment, there is
CS(Comm) 235/2017 Page 6 of 18
no question of the said payment being held to be part payment with
assurance to pay the balance amount.
16. The entire basis of the Claim of the Plaintiff is contrary to the
provisions of the contract executed between the plaintiff and the defendant
No. 1. The claim of the plaintiff being de hors the contract, the contractual
provisions and rather being based on alleged verbal assurances cannot
withstand the test of judicial scrutiny. It is further stated that the suit
against third party by a partnership firm is maintainable only if the firm is
registered. The plaintiff has neither averred in the plaint that it is a
registered partnership firm nor has placed any such certificate on record.
Therefore, the present suit is barred as per the embargo provided under
Section 69 of the Indian Partnership Act.
17. Evidence by way of an affidavit on behalf of the plaintiff was
tendered by Mr. Madanjit Singh vide Ex. PW-1/A. The contents of the
plaint were reiterated in the affidavit. Notice inviting tender dated 25th July
2008 was proved as Ex.P-1. The corrigendum No. 2 to NIT No.-3 (2008-
2009) dated 5th August 2008 was proved as Ex. P-2. The corrigendum to
NIT No.-3 (2008-2009) dated 1st August 2008 was proved as Ex. P-3. The
tender form and letter of intent dated 6th February 2009 were proved as Ex.
P-4. and Ex. P-5respectively. Work Order No.4 dated 16th March 2009 was
proved as Exhibit P-6 whereas Contract Agreement No.03 2008-09 was
proved as Ex. P-7. Letters dated 16th September 2008, 30th March 2011,
15th April 2011 and 25th May 2011 by Plaintiff to Defendants were proved
as Ex.P-8, Ex.P-10, Ex.PW-1/1 and Ex.PW-1/2 respectively. Letters dated
25th November 2010, 20th June, 2011, 24th August 2011, 6th September,
2011 and 3rd January 2012 by Defendants to Plaintiff were proved as Ex.P-
CS(Comm) 235/2017 Page 7 of 18
9, Ex.P-12, Ex.P-14 and Ex.P-15 respectively. Letter dated 26th April 2011
by Defendants to DCP Traffic was proved as Ex.P-11. Performance report
of the completed work dated 17th September 2013 was proved as Ex. P-16.
Claims dated 17th November 2015 submitted by Plaintiff to Defendants
were proved as Ex. P-17 (colly). Notice dated 21st April 2016 issued by the
Plaintiff to Defendants was proved as Ex.P-18. Proof of dispatch of the
notice dated 21st April 2016 was proved as Ex. P-19. Special power of
attorney in favour of Mr. Madanjit Singh was proved as Ex. PW-1/3. The
registration certificate of plaintiff was proved as Ex. PW-1/4. In his cross-
examination he stated that as per the contract his designation was of
manager. He was personally involved in submissions of the bid,
negotiations and finalization of contract with Defendant no. 1 and that he
was fully aware of terms and condition of contracts. He stated that he
obtained permissions from the other department and handed over it to the
defendants. He further explained that he did not have any authority to go to
any authority to obtain necessary permission and he took officials of
defendant to take those permissions. The meeting between officials of
defendant and the department took place in his absence. He further stated
that he has not filed any document on record to show that the officials of
the defendants in any way delayed in issuing or handing over any letter to
seek necessary permission from other the other department. He had also
not objected to condition imposed by defendant No.1 that they were
granting extension without prejudice to the rights to recover liquidated
damages as per the contract and has also not placed any document on
record to substantiate the claim. However, in the hindrance register the
fact that there was no delay on part of the plaintiff was mentioned. He
CS(Comm) 235/2017 Page 8 of 18
further stated that he received full and final payment relating to his work in
July, 2014. The running bill showing full and final payment to the plaintiff
was exhibited as Ex.PW-1/DA. He stated that he did not sign Ex.PW-
1/DA while receiving the last payment made by defendant No.1 in July,
2014.
18. Ram Singh (PW-5), Assistant Director, Office of Economic Advisor,
Department of Industrial Policy and Development produced the copy of
Wholesale Price Index of all commodities and fuel and power (2004-2005)
which was proved as Ex. PW-5/A.
19. Rakesh Kaushik (PW-4), Section Officer Labour Welfare, Delhi Jal
Board produced the photostat copies of order no. 21 dated 6 th May 2009
and office order no. 12 dated 3rd April 2012 issued by consultant (Labour
Welfare). The same were proved as Ex. PW-4/A and Ex. PW-4/B
respectively.
20. Sh. U.K. Sinha (PW-2), Deputy Labour Commissioner, Labour
Department, Government of NCT, produced the photostat copy of order
bearing No. F.12 (142)/02/MW/Lab/7283 dated 19th February 2009 issued
by the Joint Secretary (Labour) and the Photostat copy of order bearing No.
F.12 (142)/02/MW/Lab/1850 dated 08th September 2009 issued by the
Joint Secretary (Labour). The copy of the order dated 19th February 2009 is
Ex. PW.2/A. The copy of the order dated 08th September2009 is Ex.PW-
2/B.Sh.
21. Anil Bharti (PW-3), Executive Engineer produced following
documents i.e. Original Contract Agreement No: 03/2008-09 dated 30th
March 2009 between the DJB and Sh. Sri Bhagwan Aggarwall, Smt.
CS(Comm) 235/2017 Page 9 of 18
Sushma Aggarwal and Sh. Mukesh Aggarwal. Copies of the aforesaid
documents were proved as Ex.PW-3/1 (colly.). Copy of the letter dated 15th
April 2011 written by the plaintiff to defendant No. 2 was proved as
Ex.PW-3/2. Copy of the letter dated 25th May 2011 written by the plaintiff
to defendant no.2 was proved as Ex.PW-3/3. Original Letter of intent
bearing, No. DJB/EE/(C)DRXIV/2009/116 to 122 dated 6 th February 2009
issued by the Executive Engineer to the plaintiff was proved as Ex.PW-3/4.
Original Work Order bearing No. DJB/EE/(C)DR.XIV/2009/404 dated 16th
March 2009 issued by the Executive Engineer (C) Dr. XIV, to the plaintiff
was proved as Ex.PW-3/5. Copy of the Letter bearing Ref. No. 635 (1)
TCP/2008-2009 dated 162008 issued by the plaintiff to the defendant was
proved as Ex.PW-3/6. Copy of the letter No. F-1(19)/DJB/EE (C) Dr.
XIV/2010/1513 dated 25th November 2010 issued by the Executive.
Engineer (C) Dr. XIV, to the plaintiff was proved as Ex.PW-3/7. Copy of
the letter bearing Ref. No. 635 (33) TCP/2010-2011 dated 30th March 2011
issued by the plaintiff to the defendant was proved as Ex.PW-3/8. Copy of
the letter NO. F-/DJB/EE (C) DR.XIV/2011/484 dated 26th April 2011
issued by the Executive Engineer (C) Dr. XIV, to the DCP Traffic Western
Range was proved as Ex.PW-3/9. Copy of the letter No. F-/DJB/EE (C)
DR.XIV/2011/715 dated 20.06.2011 issued by the Executive Engineer (C)
Dr. XIV to the plaintiff was proved as Ex.PW-3/10. Copy of the letter No.
F-/DJB/EE (C) DR.XIV/2011/1021 dated 24th August 2011 issued by the
Assistant Engineer (C) DR. XIV to the plaintiff was proved as Ex.PW-
3/11. Copy of the letter No. DJB/EE (C) DR.XIV/2011/1095 dated 06 th
September 2011 issued by the Executive Engineer (C) DR. XIV to the
plaintiff was proved as Ex.PW-3/12. Copy of the letter No. DJB/EE (C)
CS(Comm) 235/2017 Page 10 of 18
DR.XIV/2012/1462 dated 03.01.2012 issued by the Executive Engineer
(C) DR. XIV, to the plaintiff was proved as Ex.PW-3/13. Copy of the
Performance Report of completed Work bearing No. DJB/EE (C)
DR.XIV/2013/1484 dated 17th September 2013 issued by the Executive
Engineer (C) DR. XIV was proved as Ex.PW- 3/14. Copy of the letter
bearing Ref. No. 635 (72) TCP/2015-2016 dated 17th November 2015
issued by the plaintiff to the defendant, along with this letter, the plaintiff
had attached the calculations etc. (containing 21 pages) which was proved
as Ex.PW 3/15. He failed to produce the hinderance register which was
summoned even after making repeated efforts to trace out the same.
22. It would be in the first instance appropriate to deal with issue
No.(viii) which relates to whether the suit claim was within the period of
limitation. From the own showing of the plaintiff though the work was to
be completed on 30th September, 2010, the work was completed actually
on 23rd July, 2012 which fact is acknowledged by both the plaintiff and the
defendant. The plaintiff for the first time raised the claim of the escalation/
damages for a sum of ₹6,16,33,177/- vide its letter dated 17th November,
2015 i.e. beyond the period of limitation of three years.
23. Supreme Court in the decision reported as (2016) 14 SCC 761 State
of Gujarat Vs. M/s. Kothari and Associates, dealing with the period of
limitation, in the case of breach of contract under Article 55 of Limitation
Act held as under:-
"11. It also appears to us that the contract was clearly not
broken as the Respondents chose to keep it alive despite its
repeated breaches by the Appellant State. The factual matrix presents a situation of successive or multiple breaches, rather than of a continuous breach, as each delay in handing over CS(Comm) 235/2017 Page 11 of 18 the canal/site by the Appellant State constituted to a breach that was distinct and complete in itself and gave rise to a separate cause of action for which the Respondent could have rescinded the contract or possibly claimed compensation due to prolongation of time and resultant escalation of costs. Of course the Respondent is enabled to combine all these causes of action in one plaint, as postulated in the C.P.C provided each claim is itself justiciable. Even the Respondent has argued before the High Court that the suit was based on successive breaches committed by the Appellant State. In our opinion, the suit was required to be filed within three years of the happening of each breach, which would constitute a distinct cause of action. Article 55 specifically states that in respect of successive breaches, the period begins to run when the breach in respect of which the suit is instituted, occurs. In this vein, Rohtas Industries Ltd vs. Maharaja of Kasimbazar China Clay Mines ILR (1951) 1 Cal 420 is apposite as it has held that when a party agrees to deliver certain goods every month for a duration spanning certain years, the cause of action for breach for failure to deliver in a particular month arises at the end of that month and not at the end of the period of the contract. The situation before us is similar in that the cause of action had arisen on each occasion when the Appellant State failed to hand over the site at the contractually stipulated time. Specifically, the limitation periods arose on 15.11.1976, 15.11.1977, 15.11.1978 and 15.11.1979, i.e. on the first day of each season, when the Respondent State committed a breach by failing to hand over the site. Thus the period of limitation did not commence at the termination of the contract period or the date of final payment. The High Court's conclusion that the last date of breach and last date of payment were relevant, not each cause of action, was thus patently erroneous. For each breach, a corresponding amount of damages for additional costs could have been sought. The suit, however, was filed on 25.1.1985, well after the limitation period of three years for even the final breach, as the various causes of action became CS(Comm) 235/2017 Page 12 of 18 time barred on 15.11.1979, 15.11.1980, 15.11.1981 and 15.11.1982 respectively.
12. There is another perspective on the method or manner in which limitation is to be computed. We have already narrated that the Respondent, on every occasion when the extension was sought by it, had requested to be compensated for delay. The Appellant State had granted the extensions but had repudiated and rejected the Respondent's claims for damages. The effect of these events would be that the cause of action for making the claim for damages indubitably arose on each of those occasions. It is certainly arguable that the Appellant State may have also been aggrieved by the delay, although the facts of the case appear to be unfavourable to this prediction, since delay can reasonably be laid at the door of the Appellant. The Respondent, however, could prima facie be presumed to have accepted a renewal or extension in the period of performance but with the rider that the claim for damages had been abandoned by it. If this assumption was not to be made against the Respondent, it would reasonably be expected that the Respondent should have filed a suit for damages on each of these occasions. In a sense, a fresh contract would be deemed to have been entered into between the parties on the grant of each of the extensions. It is therefore not legally possible for the Respondent to contend that there was a continuous breach which could have been litigated upon when the contract was finally concluded. In other words, contemporaneous with the extensions granted, it was essential for the Respondent to have initiated legal action. Since this was not done, there would be a reasonable presumption that the claim for damages had been abandoned and given a go-by by the Respondent".
24. In the present case, work was admittedly completed on 23 rd July, 2012 and thus, the compensation for the alleged breach of contract by the defendants accrued to the plaintiff before 23rd July, 2012. The plaintiff in respect of the present claims, for the first time raised the claim by writing a CS(Comm) 235/2017 Page 13 of 18 letter to the defendants on 17th November, 2015 which was clearly beyond the period of limitation as by the said date, the claim had been time barred. The claim being time barred, raising the claim on 17 th November, 2015 would not extend the period of limitation by filing the suit beyond the period of three years when the claim actually arose. Though the plaintiff states about oral assurance, however in the absence of any written acknowledgement of the liability the period of limitation cannot be extended.
25. Though this Court is not required to go any further into the remaining issues having held that the claim in the suit is barred by limitation, however this Court is also proceeding to decide the claim of the plaintiff on merits to show that there is no merits in the claim sought in the present suit.
26. Considering a claim under Section 73 of the Indian Contract Act Supreme Court in ONGC Ltd. vs. Saw Pipes Ltd., 2003 (5) SCC 705 held as under:
67. Take for illustration construction of a road or a bridge. If there is delay in completing the construction of road or bridge within the stipulated time, then it would be difficult to prove how much loss is suffered by the society/State. Similarly, in the present case, delay took place in deployment of rigs and on that basis actual production of gas from platform B-121 had to be changed. It is undoubtedly true that the witness has stated that redeployment plan was made keeping in mind several constraints including shortage of casing pipes. The Arbitral Tribunal, therefore, took into consideration the aforesaid statement volunteered by the witness that shortage of casing pipes was only one of the several reasons and not the only reason which led to change in deployment of plan or redeployment of rigs Trident II platform B-121. In our view, in CS(Comm) 235/2017 Page 14 of 18 such a contract, it would be difficult to prove exact loss or damage which the parties suffer because of the breach thereof.
In such a situation, if the parties have pre-estimated such loss after clear understanding, it would be totally unjustified to arrive at the conclusion that the party who has committed breach of the contract is not liable to pay compensation. It would be against the specific provisions of Sections 73 and 74 of the Indian Contract Act. There was nothing on record that compensation contemplated by the parties was in any way unreasonable. It has been specifically mentioned that it was an agreed genuine pre-estimate of damages duly agreed by the parties. It was also mentioned that the liquidated damages are not by way of penalty. It was also provided in the contract that such damages are to be recovered by the purchaser from the bills for payment of the cost of material submitted by the contractor. No evidence is led by the claimant to establish that the stipulated condition was by way of penalty or the compensation contemplated was, in any way, unreasonable. There was no reason for the Tribunal not to rely upon the clear and unambiguous terms of agreement stipulating pre- estimate damages because of delay in supply of goods. Further, while extending the time for delivery of the goods, the respondent was informed that it would be required to pay stipulated damages.
68. From the aforesaid discussions, it can be held that:
(1) Terms of the contract are required to be taken into consideration before arriving at the conclusion whether the party claiming damages is entitled to the same. (2) If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such compensation and that is what is provided in Section 73 of the Contract Act. (3) Section 74 is to be read along with Section 73 and, therefore, in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree. The CS(Comm) 235/2017 Page 15 of 18 court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of a contract. (4) In some contracts, it would be impossible for the court to assess the compensation arising from breach and if the compensation contemplated is not by way of penalty or unreasonable, the court can award the same if it is genuine pre-estimate by the parties as the measure of reasonable compensation.
27. Vide letter dated 17th November, 2015 to the defendant, the claim of the plaintiff is two folds, firstly payment due under Clause-10CC and secondly payment due for losses on account of idle labour .
28. A perusal of the agreement between the parties reveals that Clause- 10CC was deleted from the contract agreement between the parties and thus the claim of the plaintiff under the said clause holds no ground and is liable to be rejected.
29. Considering the second claim of the plaintiff on the ground of labour and machinery sitting idle, it is pertinent to mention that though the work under the contract was to be completed till 30 th September, 2010 but through letters dated 28th November, 2010 and 3rd January, 2012 extensions were granted to the plaintiff to complete work under the Contract Agreement without prejudice to the rights of the defendants to recover liquidated damages/ taking appropriate action in accordance with the provisions of the relevant clauses of contract agreement for the work. Till 30th September, 2010 that is the actual date of conclusion of the contract there was no communication between the parties regarding any claim whatsoever. Further the first letter of plaintiff sent to the defendant is dated 15th April, 2011 intimating that the MCD staff were harassing the CS(Comm) 235/2017 Page 16 of 18 plaintiff and also took away their equipments which led the labour and staff to sit idle as the Road Restoration charges were not paid by the defendants to the MCD. The defendant vide letter dated 26th April 2011 made a request to the DCP Traffic for road cutting to lay sewer line from Delhi Gate crossing to Chawla Stand, Najafgarh and also requested to carry out the work as the same was being delayed and it would have been difficult to carry out work in monsoon. Plaintiff vide letter dated 25th May 2011 to defendant made a reference to the earlier letters wherein attention was drawn to the department for slow progress of work for want of permission from MCD. The tender in favour of the plaintiff was as per the trenchless technology which is also reiterated by the letter dated 20th June 2011 of the defendant to the plaintiff granting the approval for the work of "P/L Internal sewerage system in rural villages Khera, Papravat, Roshanpura & Deendarpur along with peripheral sewer by trenchless method" as due to site constraints and inability of the traffic department, the permission by open cut method could not be granted. Therefore, considering the communications between the defendants and MCD on 16th October 2008 whereby permission was sought by the defendant from MCD for road cutting and request was also made to intimate the Road Restoration charges, further vide letters dated 9th April 2009, 22nd May 2009, 30th September 2009 , 21st December 2009, 31st May 2010, 27th July 2010, 24th October 2011 and 1st December 2011 it is evident that the Road Restoration charges were mostly settled by the defendants prior to 15th April, 2011 and only the revised Road Restoration charges of village Paprawat were paid after the said date. It cannot be said that there was any CS(Comm) 235/2017 Page 17 of 18 delay on the part of the defendant particularly in light of clause 5.55 of Special Conditions of the Contract, which reads as under:-
"5.55 The contractor should arrange the necessary permissions from road (However RR Charges shall be deposit by the department), traffic department, electricity deptt., and other services department required for execution of work. The department will access only in writing of letters. No extra claim should be entrained on account of delay in permissions".
30. During the said period various letters dated 9th March 2009 (Ex. D-
2), 5th November 2009(Ex. D-6), 17th December 2009(Ex. D-7), 8th April 2010(Ex. D-9), 5th January 2011 (Ex. D-13), 26th April 2011 (Ex. D-14) and 15th February 2012(Ex. D-17) were addressed to DCP Traffic by the defendant seeking permission for Traffic diversion and road cutting in Najafgarh Area. The fact of non-payment of Road Restoration charges by the defendant to MCD does not arise as most of the charges were settled by the defendant hence the claim of the plaintiff on the said ground is not justified as also in terms of Clause 5.55 of the Special Conditions of Contract as noted above.
31. In view of the discussion aforesaid, the claim in the suit being time barred as also being devoid of merit as noted above, the present suit is dismissed subject to cost of ₹25,000/- in favour of the defendant.
(MUKTA GUPTA) JUDGE FEBRUARY 20, 2020 „Sk/akb‟ CS(Comm) 235/2017 Page 18 of 18