Delhi District Court
M/S. Superior Aircon Pvt. Ltd vs Nbcc (India) Ltd on 10 September, 2024
IN THE COURT OF SH. AJAY KUMAR JAIN:
DISTRICT JUDGE COMMERCIAL COURT 03 - SOUTH EAST
DISTRICT SAKET COURTS, NEW DELHI.
CS (COMM) 33/2019
M/S SUPERIOR AIRCON PVT. LTD.
Through its Authorized Representative
Having its office at :
BU-4, SFS Flats, Outer Ring Road
Pitampura, New Delhi-110034 ..... PLAINTIFF
VERSUS
NATIONAL BUILDING CONSTRUCTION
CORPORATION (INDIA) LTD.
NBCC Bhawan, Lodhi Road
New Delhi - 110 003 .....DEFENDANT
Date of Institution : 31.05.2018
Date when final arguments heard : 23.08.2024
Date of Judgment : 10.09.2024
JUDGMENT
1. Vide this judgment, I shall decide the suit for recovery of Rs. 1,15,07,026/- alongwith interest filed by the plaintiff against the defendant.
2. Brief facts of the case as per plaint that the plaintiff company engaged in the business of providing services relating to CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 1 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
setting up of air-conditioning plants and providing related services thereof. The defendant company in the desire of awarding the contract of supply, installation, testing and commissioning of HVAC and related miscellaneous works for the existing technology building at Saharanpur Campus of IIT Roorkee invited tenders. Under the said notice inviting tender, the scope of work inter-alia was to provide and fix air cooled variable refrigerant flow air conditioning system, duct work, refrigerant and drain piping, insulation, electrical work, false ceiling and civil works related to restoration/ repairs to the existing building due to installation of HVAC system etc. In pursuance of said tender, the plaintiff company participated in said tender and submitted its bid on 25.04.2013 and deposited an amount of Rs. 7,40,000/- as earnest money.
3. The bid submitted by the plaintiff company was accepted by the defendant vide letter of award dt. 06.05.2013 (LOA) and the total value of contract as per LOA was Rs. 3,49,39,338/-. The stipulated period for completion of work was four months. The plaintiff company submitted to the defendant company a performance bank guarantee equivalent to the 5% of contract value which came out to the tune of Rs. 17,46,967/- within 30 days of issuance of LOA. The defendant and the plaintiff entered into an agreement dt. 03.07.2013. The said agreement was to be governed as per the terms and conditions specified in LOA. As per Clause 2.0 of agreement, following documents are defined :
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a. The Defendant's detailed Notice inviting tender NBCC: SGM:
SBG-Delhi: IIT Roorkee:2013:92 dated 09.04.2013 and documents consisting of:
1) ITT, GCC (Volume - I) NIT, Memorandum, Approved Makes, Specifications & Tender Drawings (Volume - II) and BOQ (Volume
- III) including quoting sheet for bidder. 2) Corrigendum No. I issued by the Defendant vide No. NBCC: SGM: SBG- North: IIT Roorkee: 2013:3533 dated 03.05.2013
3) Quoting Sheet of the bidder
4) Tender submitted by the Plaintiff
5) Letter of unconditional acceptance of tender conditions submitted by the Plaintiff.
6) Affidavit as per Appendix 'O' of GCC, submitted by the Plaintiff.
b. The LOA, including all the correspondence referred to therein and Bill of Quantities and quoting sheet of the bidder etc. c. Construction Schedule (Bar Chart) submitted by the Plaintiff.
4. The time was essence of the contract. The plaintiff company commenced the work on site on 16.05.2013. The plaintiff vide letter dt. 21.05.2013 provided the drawing etc. and sought the approval of defendant. Further, the plaintiff company as per the LOA and Clause 9 of the general conditions of contract provided the defendant bank guarantee dt. 01.06.2013 to the tune of Rs. 17,46,967/- valid upto 31.10.2013 which was extended on several occasions on the request of the defendant. After submissions of the drawings on 21.05.2013, there were several meetings between the plaintiff and consultant of the defendant. Pursuant to which, vide letter dt. 04.06.2013, plaintiff provided head load details as desired by the defendant. The plaintiff also sent sample of false ceiling on 07.06.2013 for approval and always acting in consonance with the agreement and its execution.
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5. The plaintiff on 08.06.2013 intimated the defendant that it placed the order of VRF units with LG Electronics India and delivery was expected in the last week of July, 2013. The plaintiff also requested defendant to inspect the VRF units as per the agreement.
6. The defendant after the period of 17 days i.e. on 18.06.2013 sent a letter to the plaintiff asking them to confirm the details of the bank guarantee. The agreement was to be executed between the parties within 10 days of LOA, however, the agreement could only be executed on 03.07.2013. The defendant on 11.07.2013 raised the issue of VRF units, and vide letter dt. 19/22.07.2013, defendant forwarded a set of shop drawings with comments to the plaintiff, and directed the plaintiff to re-work the same. The plaintiff provided detailed reply to the comments of the defendant vide letter dt. 29.07.2013. The defendant vide letter dt. 30.07.2013 reiterated its stand despite explanation therefore the plaintiff conceded to its demand and placed orders with Daikin and placed inspection call with the defendant on 08.08.2013.
7. The plaintiff in terms of GCC raised the first running account bill to the tune of Rs. 35,44,763/32p vide letter dt. 27.07.2013. The payment was to be released within 15 days. The plaintiff company vide letter dt. 05.09.2013 sent a reminder to the defendant. The defendant released the payment only on 07.09.2013 and deducted a sum of Rs. 2,20,000/- under the head of miscellaneous recoveries and recovery of workforce.
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8. The second running account bill was submitted by the plaintiff on 25.09.20213 to the tune of Rs. 55,51,793/-, then sent a reminder on 19.10.2013 and again on 23.10.2013, however, the defendant only on 25.10.2013 released the payment of second running account bill after deducted amount of Rs. 4,50,053/- without any justification.
9. The work was still in progress and the defendant vide letter dt. 29.10.2013 requested the bank to extend the bank guarantee till 31.01.2014 which was extended upto 28.02.2014. The defendant extended the said contract without levying any penalty, liquidated damages or any compensation of delay which demonstrate there is no fault for delay in completion of work attributed to the plaintiff company. The plaintiff raised third running account bill to the tune of Rs. 1,42,05,397/- vide letter dt. 27.11.2013 which was paid on 30.12.2013. The fourth running account bill was raised on 31.01.2014 to the tune of Rs. 1,72,65,072/-, and the defendant made payment on 26.02.2014 after delay and violated the terms and conditions of the agreement. The delay is due to the defendant. The defendant again vide letter dt. 22.02.2014 requested the bank to extend the bank guarantee till 30.06.2014 which was extended upto 30.04.2014.
10. The plaintiff was successful in commissioning one unit by 28.02.2014. In pursuance to the services rendered by the plaintiff, the plaintiff raised fifth running account bill vide letter dt. 29.03.2014 to the tune of Rs. 1,15,34,587/- which was again paid at a belated stage on 17.04.2014 after various illegal recoveries under miscellaneous heads.
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The plaintiff faced hurdles from the defendant as well as from the end clients, as continuous stablise electricity was not provided by the end client. The testing schedule was also hampered due to non-provision of continuous stablise electricity supply resulting in instances of damage to highly sensitive and expensive equipment. The plaintiff already completed its work but due to lack of coordination of work and support, the testing schedule was held and said hindrances faced by the plaintiff was duly pointed out in letter dt. 15.04.2024. Vide meeting held on site on 21.04.2014, it was decided that testing of 72 units have undertaken which began on 22.04.2014 and came to end after 72 hours on 25.04.2014.
11. The plaintiff vide letter dt. 25.04.2014 apprised the defendant about the successful testing and further requested to issue completion certificate, however, the defendant vide letter dt. 16.04.2014 again requested the bank to extend the bank guarantee till 30.06.2014 on the pretext that the plaintiff unable to complete its contractual obligations, however, despite the fact that the plaintiff completed the work extended bank guarantee till 30.06.2014. On 29.04.2014, the plaintiff handed over reports and test sheets to the defendant and requested for issuance of completion certificate.
12. On 19.06.2014, the defendant asked the plaintiff to undertake additional work for electrical lab. The plaintiff also completed the said work on 27.07.2014 and apprised the same vide letter dt. 26.07.2014, and the bank guarantee was extended upto 30.09.2014. The plaintiff on 29.08.2014 provided defendant completion CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 6 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
drawings for complete HVAC work as installed at the site alongwith the operations and maintenance members for outdoor units etc. and on 30.08.2014 supplied extension of time found. Consequently, the plaintiff vide letter dt. 28.07.2014 raised 6 th final bill for extra deviated items. The defendant, however, delayed the release of said payment. The plaintiff vide its letter dt. 03.09.2014, 10.09.2014 and 20.09.2014 send reminders to the defendant requesting to release the payment. On 06.12.2014, defendant released the outstanding payment. The defendant withhold the payment, therefore plaintiff vide letter dt. 20.02.2015 requested the defendant to release the withheld payment and also sent a copy of final bill of Rs. 10,17,407/-, however, defendant again requested to extend the bank guarantee upto 31.03.2016. The plaintiff has already done the contractual obligations. The extension of bank guarantee was not necessary. The defendant vide letter dt. 28.02.2015 requested bank to extend the bank guarantee anticipating that this time the plaintiff may refuse to do so and further requested bank to encash the bank guarantee in the event the plaintiff refused to extend the bank guarantee. The plaintiff vide letter dt. 17.03.2015 apprised the defendant that since the work was completed the extension of bank guarantee was not necessary.
13. The defendant after submission of final bill on 04.06.2015 kept on delaying the payment and thereafter various reminders which are also acknowledged by the defendant. The defendant returned the bank guarantee on 28.03.2016 despite the fact that the work has been completed one year ago.
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14. The defendant despite acknowledging the debt of plaintiff as late as 09.09.2015 refused, not paid the dues. Thereafter, legal notice dt. 13.10.2017 was sent to which a fictitious reply dt. 10.11.2017 sent by the defendant. In the reply of legal notice, defendant acknowledged the debt but failed to release the amount, therefore, the plaintiff has following outstanding claims :
a) Claim for release of residual amount of final bill -
Rs.10,17,407/-
b) Claim for release of payment deducted illegally from the 6th & Final Bill - Rs.19,27,264/-
c) Claim for release of payment deducted illegally from Running Account Bills - Rs.8,55,250/-
d) Claim for release of payment deducted from Running Account Bills on account of security deposit, which was to be released forthwith on expiry of warranty period - Rs. 30,45,439/-
e) Claim against delay solely attributable to the Defendant - Rs. 6,26,845/.
f) Claim against escalation in wages of labour, material etc. - Rs.32,74,891/-
g) Claim against delay caused by the Defendant in releasing the Bank Guarantee from 31.10.2013 to 28.03.2016 - Rs.7,59,930/-
15. The defendant is liable to pay the plaintiff total amount of Rs. 1,15,07,026/-. The present suit claiming following relief was filed :
a) For recovery of Rs. Rs.1,15,07,026/- along with interest 18% per annum from the date the said amount became due and payable till up to date may kindly be passed in favour of the Plaintiff and against the Defendant.
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b) For Costs of the suit may be awarded in favour of the Plaintiff and against the Defendant.
c) Or any other relief which this Hon'ble court deems fit and proper in the facts and circumstances of the present case.
Written Statement
16. In written statement, it is stated that the plaintiff has not come with clean hands and suppressed true facts. The defendant is a public sector undertaking and the company of the plaintiff led to delay in execution and commissioning of SITC of HVAC and related to miscellaneous work which tantamount to direct pilferage of public funds. The suit is also barred by limitation. The plaintiff himself failed to fulfill its part of the contractual obligations, hence, cannot be allowed to take the advantage of its own wrong. The suit is also bad for non-joinder of necessary party i.e. Director, IIT, Roorkee. The defendant is merely agent of the principal client of its owner i.e. IIT, Roorkee and in case the payment is to be recovered, the same has to be recovered from the IIT, Roorkee as per contract.
17. In parawise reply, it is not in dispute that the time was essence of contract but denied that plaintiff company commenced the work on 16.05.2013, and vide letter dt. 21.05.2013 provided drawings of main LT panel, capacitor panel, main penal for VRF units and sub panel for VRF and Air distribution etc. The drawings submitted by the plaintiff were defective and faulty. Number of meetings were held, however, plaintiff failed to take the corrective measures. The plaintiff company failed to assign its manpower to get the things right. The CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 9 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
plaintiff miserably failed to complete the contractual work within stipulated time, therefore, defendant requested the plaintiff to extend the bank guarantee from time to time. It is the obligations of the plaintiff that the bank guarantee alive in terms of the contract and extensions provided therein. It is also denied that plaintiff vide letter dt. 04.06.2013 provided heat load details, also denied on 07.06.2013 sent the sample of false ceiling. The plaintiff failed to comply with its part of contractual obligations and not punctual where even the drawings were defective and plaintiff was asked to submit the program.
18. It is also denied that plaintiff on 08.06.2013 intimated defendant that it had placed the order of VRF units with LG Electronics India and delivery was expected in July, 2013 and requested defendant for instructions. The letters in this regard was also denied. The letters regarding progress were also denied. As per NIT dt. 09.04.2013, the work had to be carried out as per technical specification and non- compliance is indicative of the lackadaisical manner in which the terms of the contract were followed by the plaintiff.
19. It is denied that the agreement could not be signed due to default of the defendant. The project agreement can only be made after all the documents of NIT are correct as per the contract requirements. The construction program submitted by the plaintiff vide letter dt. 10.05.2013 found to be incorrect, defective and inappropriate showing poor knowledge of the plaintiff and same was replied by the defendant vide letter dt. 12.06.2013. The defendant by providing professional guidance enable the plaintiff to re-submit the construction program on CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 10 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
21.06.2013. The delays are solely attributable to plaintiff and its lack of knowledge about construction schedule and subsequent delay in submission of bank guarantee (BG) details. This all suggests unwillingness on the part of the plaintiff towards performing its part of contract, conditions/ obligations.
20. Time was essence of the agreement, however, it is denied that plaintiff was executing the work according to deadlines. The submissions of drawings and details of the plaintiff are not according to the tenders specifications nor suitable for the required system. Intimation to revise submitted documents as per GFC drawings and specifications were intimated by letter dt. 19.07.2013 but due to incompetence of contractor in like nature of the work and negligence towards completion of work within contractual completion date by the plaintiff, the submissions was delayed and request for approval by plaintiff was placed vide letter dt. 13.01.2014. Intention of the plaintiff to use equipment from unapproved makes and incompetence of designs and detailing of LT panels intimated to the defendant in letter dt. 19.07.2013 are self suffice to explain the conduct and motive of the defendant towards honoring the contractual obligations on its part. The plaintiff failed to perform its part of contract miserably and the defendant was constrained to provide technical guidance to the plaintiff to some how get the work completed. It is not in dispute that defendant on 11.07.2013 raised the issue of VRF units picked by the plaintiff as not being as per approved make for VRF units. It is submitted that technical bid was accepted based only on approved makes suggested by CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 11 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
the plaintiff. The plaintiff has failed to perform its part of contract and is making lame excuses with sole motive to shift the blame of its inefficiency upon the answering defendant.
21. It is denied that despite explanation given by the plaintiff for placing order for VRF units with LG Electronics India and considering of demands of the defendant to place orders with Daikin and calling of defendant for inspection on 08.08.2013. It is stated that the plaintiff intended to use equipment from unapproved makes shows his disinterest towards the compliance of contractual conditions. As per 37.3 of GCC, the contractor payment can be cleared in 15 days if corresponding payment is received from IITR and the same was duly intimated by the defendant vide letter dt. 09.09.2015, 17.08.2015, 27.07.2015 and 11.06.2015.
22. The defendant is denying the raising of bills by the plaintiff and deductions made by the defendant without justification. It is stated that as per clause 28.3, 28.4 and 28.5 of GCC, the plaintiff agreed for payment of work force @ 12,500/- per month for 3 numbers and to provide expenditure for maintenance of office and furniture, computer with operator, salary, fax, internet, telephone, office electricity bills, water charges alongwith staff carrying vehicle. The plaintiff failed to comply with its part contractual obligations and is only trying to shift its burden upon the answering defendant by making false representations. The plaintiff extended BG till 28.02.2014, however, this do not show its willingness to complete obligations. The contract and BG must run any hand and it is mandatory to BG alive till CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 12 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
the defect liability period of the contract is over. The delay in work is solely attributable to the plaintiff.
23. It is denied that the defendant extended the contract without any penalty or compensation or not adverse action was taken against the plaintiff showing no fault of the plaintiff. It is stated that the extension of work was granted to keep the contract alive as per GCC clause of 72.4 and further plaintiff is liable for compensation of delay as per clause 72.0 for delaying the project beyond the scheduled completion date. Mere extension of time due to absolve the contractor/ plaintiff for its default. It is stated that the deductions were made in accordance to the contract. As per GCC clause 9.1 and Clause 72, the working capacity of the bidder was declared during the process of tender award suggesting delay in payment of RA bill will not effect the progress of work. The plaintiff extended the bank guarantee by 30.04.2014, as he was confident in completing the work by 30.04.2014. As per clause 4.3 of technical specifications and clause 20 of the special condition of the project, the plaintiff was aware of the availability of area of construction and electricity supply, hence, was advised to plan accordingly but due to incapacity of the plaintiff, the project got delayed. It is also denied that the plaintiff face difficulty of stablised electricity supply and also denied that plaintiff completed the work, however, due to lack of coordination, testing schedule affected. The bank guarantee (BG) was kept alive till the period of contract and the extensions provided upto the defect liability period.
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24. It is also denied that the defendant kept delaying the plaintiff for outstanding payments on one pretext or the other and withheld payment without any cogent reasons. The amount withheld in final RA bill was in the knowledge of the plaintiff, submission of material test reports, pending approval of EOT and clearance of final RA bill. Number of reminders for submissions of test reports, application of extension of time and deputation of representatives was given to the plaintiff by defendant vide letter dt. 28.08.2014, 29.09.2014 and 17.10.2014. It is stated that as per GCC, RA bill clearance can only be made if corresponding payment received from the client. Plaintiff had accepted clause 39 of GCC which clearly defines no idle charge whatsoever will be paid to the plaintiff due to any reason. The work was delayed only due to incompetency and poor workmanship of the plaintiff and not due to any reasons attributable to the defendant. The plaintiff has to strictly comply with the terms of the contract and has not impleaded the owner i.e. Director, IIT, Roorkee. It is stated that the civil suit bearing no. 452/2018 is filed after period of limitation, hence, the return of the plaint by Ld. ADJ Court is of no aid to the plaintiff to extend the period of limitation. The suit be dismissed with cost.
Replication :
25. In replication, the plaintiff reiterated its avernments made in the plaint and denied the avernments made in the written statement.
It is stated that the defendant vide communication dt. 09.09.2015 has given a clear acknowledgment of its pending liability towards the CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 14 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
plaintiff without raising any dispute at that stage. It is also stated that the execution of work got delayed due to reasons solely attributable to the defendant and the defendant himself granted several extensions without levied any penalty/ compensation. The award was of Rs. 3.49 Crores, however, during pendancy the defendant increased the scope of work/ gave extra work. The expense incurred by the plaintiff in completing all the work is Rs.6.19 Crores. The defendant have released the payment of Rs. 6.09 Crores to the plaintiff. It is also submitted that the contentions of the defendant are completely misconceived as the plaintiff vide its communication dt. 13.01.2014 has only sought inspection at manufacturer works and not any approval. The defendant accepted the technical bid submitted by the plaintiff as per VRF units of make LG Electronics India, however, defendant requested the plaintiff and directed the plaintiff to re-work the same in terms of observation provided by the defendant. The defendant in terms of own representation dt. 19/22.07.2013 has denied its own assertions.
26. The defendant has issued the certificate regarding performance of the contractor on 26.08.2014 as well as on 06.10.2017 which itself suggests that the defendant was satisfied with the work completed by the plaintiff. The defendant cannot be allowed to approbate and reprobate. The reliance of the defendant on Clause 39 of GCC that no idle charge whatsoever would be paid to the plaintiff on account of any reasons is completely erroneous and misconceived. It is trite of law that where the contracts are extended beyond specified period of completion, the contractor is entitled to claim all charges/ CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 15 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
expenses incurred by it for such extended period and also entitled for additional expenses. The stipulated period of completion of work was only 4 months, however, the same was completed over the period of 11 months, therefore, the plaintiff is not bound for the fixed prices and escalation for the period beyond the stipulated period of contract is required to be given. The extended period of bank guarantee also shows the bonafide and willingness of the plaintiff to complete the work.
27. In the affidavit of admission denial of documents on behalf of defendant. The defendant admitted the receipt of various letters/ and bills etc., however, not admitted the correctness of contents. The plaintiff in its affidavit of admission denial of document dt. 09.07.2019 admitted letters dt. 10.05.2013, 21.06.2013, 19/22.07.2020, 19.09.2014, 17.10.2014, 11.06.2015, 27.07.2015, 17.08.2015 and 09.09.2015, however, denied letters dt. 12.06.2013 and 17.07.2013.
28. On completion of pleadings, vide order dt. 24.11.2022, following issues were framed :
1) Whether the plaintiff is entitled for recovery of Rs.
1,15,07,026/- as principal amount? OPP (2) Whether the plaintiff is entitled to interest @ 18% p.a. from the date the amount became due until realization thereof? OPP (3) Whether the plaintiff is entitled for cost of suit? OPP (4) Whether the suit of the plaintiff is bad for non-joinder of necessary party i.e. end client / owner i.e. the Director, IIT, Roorkee, Uttrakhand? OPD (5) Whether the suit of the plaintiff is barred by limitation? OPD CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 16 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
(6) Relief.
Brief summary of Evidence :
29. The plaintiff examined PW1 Sh. Sumeet Rai and defendant examined Arvind Mahar. Project Manager (Civil) of defendant.
30. PW1 Sumeet Rai, Director of plaintiff company tendered his affidavit of evidence as Ex.PW1/A and in cross examination stated that as per agreement Ex.PW1/4, IIT, Roorkee is the owner of the work and denied the suggestion that defendant is merely agent of IIT, Roorkee. He also denied the suggestion that amount under contract was paid by IIT, Roorkee and not by NBCC. He stated that it is correct that work is to be completed within four months, however, denied the suggestion that it was delayed due to his own default. He denied the suggestion that deductions were made in RA bills of the plaintiff were legitimate and justified. He denied the suggest that there was delay or default on the part of the defendant in releasing payment of the RA bill of the plaintiff. He denied the suggestion that completion certificate was not issued as it failed to complete the work as per contractual provision, however, volunteered the completion certificate was again issued on 06.10.2017 now Mark A. He denied the suggestion that the plaintiff failed to provide justification for the deviation in quantities as sought vide letter dt. 11.06.2015, however, volunteered he justified in the reply dt. 27.06.2015. He denied the suggestion that IIT, Roorkee have not released the payment as plaintiff has failed to complete the work as per the contract. He denied suggestion that there is no delay on CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 17 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
the part of the defendant in providing the work site/ work front to the plaintiff.
31. DW1 Sh. Arvind Mahar, Project Manager (Civil) tendered his affidavit of evidence as Ex.DW1/A and in cross examination stated that he is working as a Project Manager (Civil). He stated that present dispute arose out of evidence floated in 2013 and he was not a part of the defendant company at that time and only worked on this project since 27.02.2021. He was never a part of the project when the dispute arose between the parties. He further stated that they have communicated in writing to the plaintiff regarding the defects, however, not placed any document in this regard. He further stated that he had not addressed personally any communication to the plaintiff during the subsistence of the work and also not indulged in any communication with the plaintiff company even after assuming charge over the project at IIR, Roorkee on 27.02.2021. He has never notified the defects to the plaintiff company personally. IIT, Roorkee is not signatory to the contract including GCC Ex.PW1/4. He had no document to show the privity of contract between the plaintiff and IIT Roorkee. There is an MOU between the defendant and IIT, Roorkee, however, it is not placed on record.
32. This witness is shown the document Mark A regarding the performance of the contractor. After seeing the same, the witness stated that it is correct that document is signed by Sh. S.K. Soni on behalf of defendant company (Ex.DW1/P-1). He stated that it is correct that as per this certificate, the quality of work, technical proficiency, financial CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 18 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
soundness, mobilization of adequate T&P, manpower and general behavior stated to be good. The gross amount of work paid upto 31.03.2017 is Rs. 6,09,08,764/-. It is correct that against total value of work and noting states that final bill under progress, however, not placed the final bill on record before this court. The performance guarantee submitted by contractor is liable to be returned upon completion of work/ handing over the work. The stipulated date of completion of work was 15.09.2013. He further stated that he had not placed any document on record before this court for delay in execution of work. He also stated that as per clause 72.4.1 of GCC, when there is any hindrance in execution of work within 15 days of that hindrance, contractor have to apply for extension of time on account of that hindrance. In the present case, contractor has not submitted any application for extension of time even after reminding the contractor on multiple occasions. Since the application for extension of time was not submitted by contractor, hence, the same could not be made part of documents on record. Again stated it is mentioned in clause 72.4.3 instead of clause 72.4.1. He has not placed on record copy of hindrance register before the court. He further stated that if there is nay delay on the part of the contractor, compensation could be levied upon the contractor, however, they have not placed on record any document to show that any penalty or compensation has been levied. He volunteered stated that since the application of extension of time has not been submitted by contractor hence, the decision on imposition/ non- imposition of compensation due to delay have not been decided by CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 19 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
competent authority. He also stated that it is also correct that even in the event of non-submission of such application by the contractor, clause 72.4.3 clearly stipulates that the engineer incharge can take a decision thereof, however, no amount of recovery has been effected from the contractor in this case. But volunteered that an amount has been withheld of the contractor on account of extension of time for the subject work. He denied suggestion that all the amount withheld or not paid are being illegally retained by NBCC.
33. Further cross examination was adjourned for bringing the documents, however, the witness has not brought the copy of completion certificate as stated it is not available on record. The original final bill has already been submitted to the IIT, Roorkee. The running account bill already exhibited by the plaintiff. This witness also submitted that hindrance register was not found on record. He also submitted that he has not brought any record which was sought during last cross examination. He further stated that the records which are not on record are the copy of completion certificate, hindrance register and the work was executed during 2013-14, however, he had taken the charge in 2021. He further stated that record pertaining to present case were not handed over to him. He denied suggestion that he had deliberately not brought the relevant record. He further stated that he had not placed on record any document on which miscellaneous recoveries has been effected from the bills. He further stated that he could not show any document that handed over the additional work was yet to be done even as on 17.10.2014.
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34. He further stated the contract GCC already on record is the source of deduction to be done from RA bills. He had not placed on record any document to show the ground on which various recoveries have been effected. He further stated that defendant charge the commission @10% from IIT Roorkee. However, placed no document with respect to receipt of payments from IIT Roorkee. Axis Consultant is not signatory or party to the agreement between plaintiff and defendant. In reply to the question regarding handing over of additional work, he stated that he has not placed on record any document issued by him such additional work gave to be directed to be done by the plaintiff.
Material Exhibits :
35. Ex.PW1/1 is the copy of Board Resolution dt. 12.02.2018; Ex.PW1/2 is the copy of letter of award of tender dt. 06.05.2013; Ex.PW1/3 is the copy of letter dt. 07.05.2023; Ex.PW1/4 is the copy of agreement dt. 03.07.2013; Ex.PW1/5 to Ex.PW1/7 are the copy of letter dt. 21.05.2013, 01.06.2013 and bank guarantee bond; Ex.PW1/8 & Ex.PW1/9 are the copy of letter dt. 04.06.2013 and 07.06.2013; Ex.PW1/10, Ex.PW1/11, Ex.PW1/12 and Ex.PW1/13 are the Copy of letter dated 08.06.2013, 09.06.2013, 13.06.2013 and 19.06.2013; Ex.PW1/14 and Ex.PW1/15 are the Copy of letters both dated 18.06.2013; Ex.PW1/16, Ex.PW1/17, Ex.PW1/18 and Ex.PW1/19 are the Copy of letter dated 11.07.2013, 19/22.07.2013, 29.07.2013 and 20.07.2013; Ex.PW1/20, Ex.PW1/21, Ex.PW1/22 and Ex.PW1/23 are the Copy of letters dated 30.07.2013, 03.08.2013, 07.08.2013 and CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 21 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
08.08.2013; Ex.PW1/24, Ex.PW1/25 and Ex.PW1/26 are the Copy of letter dated 27.07.2013 and 1st RA Bill along with enclosures, letter dated 05.09.2013 and 07.09.2013; Ex.PW1/27 is the copy of 2nd running account bill; Ex.PW1/28 is the Copy of letter dated 19.10.2013; Ex.PW1/29 and Ex.PW1/30 are the Copy of letters dated 23.10.2013 and 26.10.2013; Ex.PW1/31 is the Copy of letter dated 29.10.2013; Ex.PW1/32 and Ex.PW1/33 are the Copy of letter dated 08.11.2013 and extended bank guarantee bond; Ex.PW1/34 Copy of letter dated 27.11.2013 along with the 3rd Running Account Bill; Ex.PW1/35 Copy of letter dated 31.01.2014 along with 4 th Running Account Bill; Ex.PW1/36, Ex.PW1/37 and Ex.PW1/38 Copy of letter dated 22.02.2014 and 27.02.2014 and the extended Bank Guarantee Bond; Ex.PW1/39 is the Copy of letter dated 28.02.2014; Ex.PW1/40, Ex.PW1/41 and Ex.PW1/42 are the Copy of letter dated 03.03.2014, 04.03.2014 and 25.03.2014; Ex.PW1/43 is the Copy of letter dated 29.03.2014 along with 5th Running Account Bill; Ex.PW1/44 is the Copy of letter dated 15.04.2014; Ex.PW1/45 is the Copy of letter dated 16.04.2014; Ex.PW1/46 is the Copy of letter dated 25.04.2014; Ex.PW1/47 and Ex.PW1/48 are the Copy of letter extending bank guarantee dated 29.04.2014 and extended Bank Guarantee; Ex.PW1/49 is the Copy of letter dated 29.04.2014; Ex.PW1/50, Ex.PW1/51 and Ex.PW1/52 are the Copy of letters dated 10.07.2014, 26.07.2014 and 08.07.2014; Ex.PW1/53 and Ex.PW1/54 are the Copy of letters dated 29.08.2014 and 30.08.2014; Ex.PW1/55 and Ex.PW1/56 are the Copy of letter dated 28.07.2014 along with 6 th and Final Bill and copy of CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 22 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
final statement of extra items; Ex.PW1/57, Ex.PW1/58, Ex.PW1/59 and Ex.PW1/60 are the Copy of letters dated 03.09.2014, 10.09.2014, 20.09.2014 and 20.02.2015; Ex.PW1/61 and Ex.PW1/62 are the Copy of letters dated 28.02.2015 and 17.03.2015; Ex.PW1/63, Ex.PW1/64, Ex.PW1/65, Ex.PW1/66, Ex.PW1/67, Ex.PW1/68, Ex.PW1/69, Ex.PW1/70, Ex.PW1/71, Ex.PW1/72, Ex.PW1/73, Ex.PW1/74, Ex.PW1/75 and Ex.PW1/76 are the Copy of letters dated 04.06.2015, 11.06.2015, 27.06.2015, 22.07.2015, 27.07.2015, 08.08.2015, 10.08.2015, 17.08.2015, 27.08.2015, 09.09.2015, 12.09.2015, 14.03.2016, 10.08.2016 and 26.04.2017; Ex.PW1/77 and Ex.PW1/78 are the Copy of the legal notice dated 13.10.2017 and reply dated 10.11.2017; Ex.PW1/79 and Ex.PW1/80 are the Certified copy of the order dated 24.03.2018 and the endorsement on the Original plaint.
Ex DW1/1 (colly) (objected to mode of proof and admissibility of document) is the Office order MPP 57/21 dt. 11.02.2021 and MPP-74/21 dt. 24.02.2021; Ex DW1/2 (colly) (objected to mode of proof and admissibility of document) is the Certified extract of board resolution dt. 19.07.1988 with sub delegation of power-2020; Mark A (de-exhibited from Ex DW1/3) is the Copy of letter dt. 12.06.2013; Mark B (de-exhibited from Ex DW1/4) is the Copy of letter dt. 17.07.2013; Mark C (de-exhibited from Ex DW1/5) is the Copy of letter dt. 17.10.2014 Ex.DW1/P.1 is the certificate dt. 06.10.2017 regarding performance of contractor issued by the General Manager, NBCC. Submissions of the counsels :
CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 23 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
36. Ld. Counsel for plaintiff submit that the testimony of PW1 remained unrebutted and only suggestions were put which are in-
permissible in law, apart from the suggestions no question regarding factual dispute were put. The defence in the written statement is completely moonshine, illusory and frivolous. There are bald denial by the defendant. No questions have been put to the PW1 to discredit the documents/ letters relied by the plaintiff and mere suggestions are not sufficient to discredit the testimony of PW1.
37. The issue no. 1 is for plaintiff's entitlement for recovery of Rs. 1,15,07,026/- which includes residual amount of final bill of Rs. 10,17,407/-. The completion certificate dt. 06.10.2017 (Ex.DW1/P.1) shows that gross amount of Rs. 6,09,08,764/- has been paid upto 31.03.2017. DW1 in cross examination admitted that the final bill under progress but not placed it on record. The plaintiff vide communication dt. 20.02.2015 (Ex.PW1/59 & Ex.PW1/60) submitted the final bill of Rs. 10,17,407/-, however, defendant not produced any document that the said bill is not payable. There is no specific response regarding the communication dt. 20.02.2015 except bare denial.
38. The claim for release of payment deducted illegally from 6th and final bill of Rs. 19,27,264/- and the claim of release of payment deducted illegally from running accounts bills for Rs. 8,55,250/-, 6 th bill dt. 28.07.2014 (Ex.PW1/55) was of Rs. 82,20,509/- which was paid by the defendant after making the deductions of Rs. 6,09,088/- on account of approval of EOT withheld, Rs. 12,18,176/- deducted illegally on account of approval of deviation/ extra items and Rs.
CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 24 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
1,00,000/- deducted illegally on account of insurance policy. DW1 during cross examination on 01.05.2023 admitted that clause 72.4.3 empowers the engineer incharge to take decision regarding extension of time in the event EOT application is not moved by the contractor. DW1 also admitted that no penalty/ recovery or compensation has been levied upon the plaintiff, therefore, no delay can be attributed to the plaintiff company. (Relied upon Deconar Services Vs. National Theremal Power Corporation). No reasons regarding the deductions have been made from the bills of the plaintiff company which is also fortified from the cross examination of DW1 dt. 25.07.2023.
39. Ld. counsel submits that the claim of relief for payment deducted from running account bill on account of security deposit after expiry of warranty period is Rs. 30,45,439/-. The defect liability period is 12 months which have been elapsed on 26.07.2015. The plaintiff is entitled for release of security deposit.
40. Ld. counsel for submits that the plaintiff also raised a claim of Rs. 6,26,845/- against the delay attributable to the defendant. There is nothing in cross examination of PW1 regarding the delay on the part of plaintiff. The defendant was under obligation to provide hindrance free site to the plaintiff which he failed to provide, therefore, the plaintiff incurred losses including additional visits, depreciation on tools and plants, expenses on deals etc. PW1 was not cross examined on this point, therefore, defendant liable to pay this claim. Additionally, the extensions were provided without any penalty and delay is completely and exclusively attributable to the defendant and not on the CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 25 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
plaintiff. (Relied upon B.N. Kharbanda Vs. Delhi Development Authority, MANU/DE.8107/2006). The damages have been computed in accordance with Hudson's formula which has been accepted by the courts across the country. (Relied upon McDermott International Inc. Vs. Burn Standard, (2006)11 SCC 181)
41. Ld. counsel submits that claim of Rs. 32,74,891/- against escalation in wages of labour, material etc. The work was completed much beyond the stipulated date of completion and there is no penalty or recovery effected from plaintiff's bill on account of delay, therefore, the plaintiff is entitled for reimbursement for breach of contract on the part of defendant due to which the works were delay. ( Relied upon J.G. Engineers Pvt. Ltd. Vs. Union of India, (2011)5 SCC 758; B.N. Kharbanda Vs. Delhi Development Authority, MANU/DE.8107/2006; Deconar Services Pvt. Ltd. Vs. National Thermal Power Corporation - MANU/ DE/ 3367/ 2009; Mohanlal Harbanslal Bhayana & Company Vs. Union of India - MANU/DE/2115/2012; Union of India Vs. Multi Tech Construction Co. - 2023 SCC Online Del 2665).
42. There is also a claim of Rs. 7,59,930/- caused by the defendant in releasing the bank guarantee from 31.10.2013 to 28.03.2016. As per the completion certificate (Ex.DW1/P.1), the work was completed on 27.04.2014. As per clause 9 of GCC, the performance guarantee was submitted to be returned on completion of work, however, it was returned after delay i.e. on 28.03.2016, therefore, this claim be also allowed. The issue no. 2 is regarding the interest @ 18% p.a. from the date of due till realization. The interest is an CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 26 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
equitable remedy and same is liable to be granted. ( Relied upon Alok Shankar Pandey Vs. UOI, (2007)3 SCC 545 ). The plaintiff is also entitled to interest as well as cost.
43. Issue no. 4 is regarding the non-joinder of necessary party. IIT, Roorkee is not a necessary party. The contract is executed between plaintiff and the defendant. DW1 also stated that IIT, Roorkee is not the signatory to the contract. No privity of contract with IIT, Roorkee. The case is filed within limitation, hence, the plaintiff is entitled to the relief claimed.
44. Ld. Counsel for defendant submitted that as per the case of plaintiff, the final bill was raised on 28.07.2014 (Ex.PW1/55) and the work was completed prior to 28.07.2014. As per Article 18 of Limitation Act, the period of limitation in respect of the suit begins when the work is done and 3 years is the period of limitation which will expire in 2017. The period of limitation for delay escalation of wages etc. also from the date of the work done or from the date of final bill. However, present suit was filed on 15.05.2018 after expiry of limitation. The previous suit was filed on 24.03.2018 which was also filed after expiry of limitation. Even as per clause 37 .1 of GCC (Ex.PW1/4) pg. 62 and assuming without admitting the provision of Article 13 of Schedule of limitation, the present suit is barred by limitation. There is no subsequent acknowledgment or admission on the part of the defendant. As per the case of the plaintiff itself, the payment of first RA bill was on 07.09.2013, 3rd bill payment on 30.12.2013, 4th bill payment on 26.02.2014 and 5th bill payment on 17.04.2014, CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 27 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
therefore, the payment demanded to these bills because of the deductions is also barred by limitation.
45. The plaintiff is seeking recovery of Rs. 1,15,07,026/-. However, it is a settled law that in civil suit onus is on the plaintiff and the plaintiff cannot seek to rely even on the weakness or absence of the defense of the defendant (State of J&K Vs. Hindustan Forest Co. & Ors., 2006(12) SCC 198; Rangammal Vs. Kappu Swami, 2011(12) SCC 220). The plaintiff miserably failed to lead any cogent evidence to prove the said claim. The affidavit of evidence does not even mention the alleged claims much less the purported amounts claimed. No evidence lead with regard to the particulars, entitlement and quantum of purported claims.
46. With regard to claim of release of Rs. 10,17,407/-, the plaintiff unable to lead any cogent evidence to show that the work corresponding to the residual amount claimed in the final bill (Ex.PW1/55 pg. 387) was actually done by it or any amount remains due or payable in respect of the same. Except the copy of final bill (Ex.PW1/55) which is disputed by the defendant. The plaintiff failed to prove on record any other evidence or to prove its purported claim as per law. The plaintiff failed to take any steps to prove work done or summons the measurement books or file any proof to alleged entitlement. The only way to prove the work done through recording of measurements in the measurement books, thus, plaintiff failed to discharge the onus of proof of claim that a further sum of Rs. 10,17,407/- is due in respect of final bill ( Relied upon Kamal CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 28 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
Construction Co. Vs. Delhi Development Authority & Anr. 2012:
DHC:5902). The plaintiff even not filed ledger account to show alleged clause 37.3 of the amounts due and payable to it and solely relying upon final bill which is disputed by the defendant, thus, failed to discharge the burden. (Relied upon Bharat Aluminum Company Ltd. Vs. Maharashtra Aluminum Corporation - 2009 (110) SRJ 333)
47. The plaintiff is claiming a sum of Rs. 19,27,264/- alleged to be deducted illegally from 6th and final bill. The plaintiff has not even pleaded or stated the material particulars of the deductions made illegally from 6th/ final bill. The defendant in written statement taken the stand that all the deductions were as per contract and onus is on the plaintiff to show the deductions were illegal. However, the plaintiff failed to discharge the said burden.
48. The plaintiff also claimed release of payment deducted illegally from running account bills to the tune of Rs. 8,55,250/-. The plaintiff not pleaded or stated material particulars of the deductions which it claims to have been made illegally from its running bills. The plaintiff failed to lead any cogent evidence to show that the amounts deducted from RA bill were deducted illegally or that it is entitled to recover a sum of Rs. 8,55,250/-. Except copies of the RA bill, nothing is placed on the record.
49. The plaintiff also claimed the deductions from running account bill on account of security deposit of Rs. 30,45,439/-. As per clause 10, the security deposit is to be refunded after expiry of the defect liability period or payment of amount of final bill whichever is CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 29 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
later and for this purpose the plaintiff is required to apply or obtain clearance certificate from Labour officer. The plaintiff also failed to provide applications for extension of time with supporting documents, therefore, not entitled for security deposit.
50. The plaintiff is also demanding claim of Rs. 6,26,845/- on account of delay attributable to the defendant. The plaintiff has to complete its work on 15.09.2013, however, failed to provide any justification. Plaintiff failed to prove any delay attributable to the defendant. Plaintiff also failed to lead any evidence in this regard.
51. Plaintiff also claimed escalation in wages of labour, material etc. to the tune of Rs. 32,74,891/-. Clause 15 of GCC categorically provides that the rates quoted by the tenderer shall be firmed and fixed for the entire period of completion till the handing over the work, no revision of rates or escalation allowed. Clause 16 expressly provide no claim on price variation/ escalation. The plaintiff failed to provide any delay attributable to the defendant.
52. The plaintiff claiming damages and has to prove the breach of contract and actual loss./ damages which he failed to do. Furthermore, the plaintiff is also claiming Rs. 7,59,930/- on account of delay in release of bank guarantee. The plaintiff however failed to prove the delay in release of the bank guarantee and for claiming this amount, the plaintiff has to prove the delay and actual loss which is lacking. (Relied upon Delhi Metro Rail Corporation Ltd. Vs. Sh. Satish Gujral, 2015 SCC Online Del 10638, M/s Unibros. Vs. All India Radio
- 2023 INSC 931).
CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 30 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
53. The plaintiff has failed to prove the principal claim, therefore, not entitled for any interest or the cost and the suit is liable to be dismissed.
54. Written submissions also filed by both the parties.
55. Arguments heard. Record perused.
56. My issue wise findings are as under :
Issue No. (1) Whether the plaintiff is entitled for recovery of Rs. 1,15,07,026/- as principal amount? OPP The brief background facts that the case of the plaintiff that he was awarded the contract of Rs. 3,49,39,338/- by the defendant which is to be completed within four months, however completed in eleven months due to delay by the defendant. The plaintiff also submitted that he has received around Rs. 6.09 Crore, out of a claim of Rs. 6.19 Crore. The plaintiff submitted that he has performed the work in accordance to terms and conditions of the contract and raised the running account bills from time to time which were paid by the defendant after illegal deductions and that too after delay. The plaintiff has also performed the extra work at the request of the defendant for which also the entire payment was not made. The plaintiff also claimed loss of profit on account of delay and the ideal charges for workmen and machinery. However, the defense of the defendant is that the plaintiff has not complied with the terms and conditions of the contract. The plaintiff submitted defective drawings and also found incompetent in performing work. Further, not installing the air-conditioning equipment in terms of the tender, however after requests, installed the CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 31 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
same. The deduction from the bills are legal. The entire delay is on the part of the plaintiff. Any delay in payment is not on the part of the defendant and it is categorically mentioned in the contract that the payment is subject to the release of the payment by the principle employer i.e. IIT Roorkee. It is also the plea of the defendant that merely on the basis of the fact that the defendant has not imposed any penalty for delay do not in any manner suggests that there is no delay on the part of the plaintiff. The plaintiff has to prove all the claims through the cogent evidence which plaintiff has failed to do so in the present case.
57. The issue no. 1 is regarding the entitlement of the plaintiff for a claim of Rs. 1,15,07,026/- under following heads:
a) Claim for release of residual amount of final bill- RS.10,17,407/-
b) Claim for release of payment deducted illegally from the 6th & Final Bill - Rs. 19,27,264/-
c) Claim for release of payment deducted illegally from Running Account Bills - Rs.8,55,250/-
d) Claim for release of payment deducted from Running Account Bills on account of security deposit, which was to be released forthwith on expiry of warranty period - Rs.30,45,439/-
e) Claim against delay solely attributable to the Defendant - Rs. 6,26,845/.
f) Claim against escalation in wages of labour, material etc. - Rs.32,74,891/-
g) Claim against delay caused by the Defendant in releasing the Bank Guarantee from 31.10.2013 to 28.03.2016 - Rs. 7,59,930/-.
CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 32 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
58. The claim (a) is release of residual amount of final bill i.e. Rs. 10,17,407/- and claim (b) is release of payment deducted illegally from the 6th and final bill to the tune of Rs. 19,27,264/-. Ld. Counsel for defendant has raised the objection that the plaintiff is merely relying upon the bills for the payments under claim (a) and (b) and not substantiated through the corresponding documents i.e. measurement books etc. and merely on the basis of bills, the plaintiff is not entitled for the payments. The plaintiff for substantiating the release of payment under claim (a) and claim (b) is not merely relying upon the bills, however, also relied upon the communications dt. 10.08.2015 (Ex.PW1/69), dt. 27.08.2015 (Ex.PW1/71), dt. 12.09.2015 (Ex.PW1/73), dt. 10.08.2016 (Ex.PW1/75). The plaintiff through these communications requested to release the payment of under claim (a) and claim (b) and alongwith the security deposit of Rs. 30,45,439/- [claim (d)]. The defendant in reply dt.17.08.2015(Ex.PW1/70) to the communication dt. 10.08.2015 (Ex.PW1/69) stated that for deviation of the quantity justification is required by their client which can be resolved through joint meeting with the clients. However, defendant had not taken any stand that such resolution has not been taken place after the letter dt. 17.08.2015, though the plaintiff wrote another letter of request dt. 27.08.2015 (Ex.PW1/71) for the abovesaid payment to which the defendant vide letter dt. 09.09.2015 (Ex.PW1/72) replied that their letter dt. 17.08.2015 (Ex.PW1/70) was self explanatory and they will release the payment only after receipt of the corresponding payment from the client. Pursuant to their reply dt. 17.08.2015 CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 33 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
(Ex.PW1/70), the plaintiff again demanded the payment through letter dt. 12.09.2015 (Ex.PW1/73), dt. 14.03.2016 (Ex.PW1/74), dt. 10.08.2016 (Ex.PW1/75).
59. The gist of the communications dt. 10.08.2015, 27.08.2015 and 10.08.2016 are re-produced as under :
".... 2. In view of above, your goodself is requested to please release the following payments deducted from Running Account Bills as Security Deposit :
S.No. Bill No. Date of Amount
Payment Deducted
(Rs.)
a) 1st Running Account 07.09.2013 1,48,019/-
Bill
b) 2nd Running Account 25.10.2013 90,882/-
Bill
c) 3rd Running Account 30.12.2013 4,07,922/-
Bill
d) 4th Running Account 26.02.2014 10,41,398/-
Bill
e) 5th Running Account 17.04.2014 9,42,465/-
Bill
f) 6th Running Account 06.12.2014 4,14,753/-
Bill
Total 30,45,439/-
3. Further, your goodself is once again requested to please release the following payment also, as per the details again given below :
a) Rs. 6,09,088/- deducted illegally from 6th Bill.
b) Rs. 12,18,176/- deducted illegally from 6th Bill.
c) Rs. 1,00,000/- deducted illegally from 6th Bill.
d) Rs. 10,17,407/- on account of payment of Final Bill."
CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 34 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
The material portion of reply dt. 17.08.2015 by the defendant to the demand raised through the above communications is re-produced as under :
"....Once again, you may like to go through the terms and conditions of payment of our agreement with M/s Superior Aircon, which is quite obvious .
In this regard, you are requested to co-operate us. As already informed certain justification for deviation in quantities are required by clients, which can be only resolved through joint meeting with clients.
Please make yourself convenient to attend the meeting to be held with out clients in the next week, which can be scheduled mutually."
The material portion of reply dt. 09.09.2015 by the defendant to the demand raised through the above communications is re-produced as under :
".... This has reference to above cited letter No. NIL dt. 27.08.2013, in this correction, our previous letter No. NBC/Roorkee/IIT/HVAC-SRE (78)2015/528 dt. 17.08.2015, may please be referred which are self explanatory, the agreement between NBCC and M/s Superior Aircon explicitly indicates that payment to the contractor will be released only after receipt the same from the client (Clause No. 37.3 of GCC) and therefore your contention of payment relation with client is not true.
It is again reiterated that your payment can be released only receipt the corresponding payment from client and such no correspondence in this regard will be entertained henceforth."
60. Though the plaintiff has not filed any document except the invoices/ bills but considering the nature of communications, it cannot be inferred that the defendant disputed the payments as demanded CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 35 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
through these letters. The only plea raised by the defendant that they have not received the payment from the client and some justification for deviations required by the client. Thus, the burden is on the defendant to prove that the plaintiff unable to justify these payments. These payments for a total of Rs. 19,27,264/- (deducted illegally from 6th RA bill) plus Rs. 10,17,407/- on account of residual final bill plus sum of Rs. 30,45,439/- deduction towards security deposit from running account bills. The plaintiff in this scenario cannot be denied the payment merely because of defence of the defendant that they have not received the payment from their clients. Hence, the plaintiff is entitled to claim of (a) of Rs. 10,17,407/- and claim (b) of Rs. 19,27,264/-.
61. The plaintiff is also claiming as under :
c) Claim for release of payment deducted illegally from Running Account Bills - Rs.8,55,250/-
These are the payments which are alleged to be deducted illegally by the defendant from the other running account bills, however, the plaintiff unable to prove that these are the illegally deducted payment. There is no corresponding admission by the defendant through any communication like for other payments as discussed above for claim (a) and claim (b). The plaintiff not able to discredit this illegal deduction through corroborating documents, hence, the plaintiff is not entitled for claim of Rs. 8,50,250/- on account of deductions from 1st to 5th running bills.
62. The plaintiff also claiming for the release of security deposit on expiry of guarantee period of Rs. 30,45,439/- [claim (d)].
CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 36 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
The quantum of the said security deposit is not disputed by the defendant. The defendant through letter dt. 09.09.2015 (Ex.PW1/72) only raised the plea that it had not received the said payment from their client, however, in written submissions raised the plea that in terms of Clause 10 of GCC, the security deposit is to be refunded after expiry of defect liability period or on payment of amount of final bill whichever is later. The defect liability is admittedly over. Merely on the ground that the plaintiff not obtained the clearance certificate of labour is no ground to retain the security deposit, particularly when no issues reported from labour, hence the plaintiff is entitled for the release of the security deposit of Rs. 30,45,439/-.
63. The plaintiff is also claiming a sum of Rs. 6,26,845/- against the delay solely attributable to the defendant and further a sum of Rs. 32,74,891/- towards escalation in the wages of labour, material etc. The plaintiff is alleging the delay on the part of the defendant, however the defendant is alleging the delay on the part of plaintiff. Admittedly the work contract is to be completed within four months which is completed after more than 11 months. The defendant has raised the various objections regarding drawing, wrong installation of the VRF fittings etc, however not imposed any penalty on the plaintiff for the delay. The plaintiff relying upon the proposition that in case the plaintiff has delayed the project than the defendant should have imposed the penalty over the plaintiff which was not imposed which means there was no delay on the part of plaintiff and the defendant is delaying because of not providing the site, stabilize electricity for CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 37 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
testing etc. The plaintiff has to establish through cogent evidence the factum of delay on the part of the defendant. However, there is no explicit communication of pecuniary loss to the plaintiff because of delay on the part of the defendant by plaintiff during or after contract. There is nothing on record to suggest that the defendant is contributing the delay deliberately in-contravention to the contract. The plaintiff has to further show the figures of Rs. 6,26,845/- towards delay as well as the figure of Rs. 32,74,891/- towards escalation in wages of labour, material etc. on the basis of the contemporary document i.e. payment made to the labour, cost of material etc. however the plaintiff has not filed any documents to corroborate the said fact. The plaintiff even not filed its ledger statement or the payment made to the labour or procuring the material in this regard. The Apex Court in case title 'Bharat Coking Coal Ltd. Vs. L.K. Ahuja, 2004 5 SCC 109' held that it is not unusual for contractors to claim loss of profit arising out of contractual delay attributable to the employer. In such cases, the contractor needs to establish that they could have utilized the same time for some other business in which they could have earned profit. Unless such a plea is raised and established, a claim for loss of profits cannot be granted in law. The Hon'ble Supreme Court in case title 'Unibros Vs. All India Radio, 2023 SCC OnLine SC 1366' held that as regards a claim for loss of profits, reaffirmed the requirement for adequate evidence to support such claims. It emphasized that evidence must demonstrate the viable opportunities lost due to the delay and be credible. It is also specified that evidence could include CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 38 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
contemporaneous records of potential projects, tendering opportunities declined due to delays, financial statements, and contracts, and contract clauses related to delays and compensation. It also outlined conditions for successful loss of profit claims : i) a delay not attributable to the claimant; ii) the claimant's established contractor status; and iii) credible evidence substantiating the claim.
64. The plaintiff neither able to prove cogently that the delay is on the part of the defendant nor able to prove the figure of damages claim on account of the said delay through cogent evidence. Therefore, the plaintiff unable to prove the claim of Rs. 6,26,845/- and of Rs. 32,74,891/-.
65. The plaintiff is also claiming a sum of Rs. 7,59,930/- on account of delay caused by the defendant in releasing the bank guarantee from 31.10.2013 till 28.03.2016. Admittedly, the plaintiff had extended the bank guarantee on the request of the defendant. Though the plaintiff claiming that he is extended the bank guarantee under pressure but unable to prove the said same through the cogent evidence. No question was asked to DW1 in cross-examination that the plaintiff has extended the bank guarantee under pressure or there is any delay on the part of the defendant in releasing the bank guarantee, hence, the plaintiff is not entitled to any amount on account of his allegations of delay in releasing of the bank guarantee.
66. Issue no. 4 :
(4) Whether the suit of the plaintiff is bad for non-joinder of necessary party i.e. end client / owner i.e. the Director, IIT, Roorkee, Uttrakhand? OPD CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 39 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
The burden to prove the said issue is on the defendant. The main case of the defendant that the work was awarded to the plaintiff on behalf of the owner IIT, Roorkee, therefore IIT, Roorkee is the necessary party, however the plaintiff not impleaded it as necessary party. The present contract has been executed only between the plaintiff and defendant. DW-1 also in cross-examination stated that IIT, Roorkee is not signatory to the contract including GCC. There is no document on record to show the privity of the contract between plaintiff and IIT, Roorkee. Though, the defendant is pursuing the contract for IIT, Roorkee but this do not in any manner makes IIT, Roorkee as a necessary party in respect of present dispute. Therefore, issue no. 4 is decided against the defendant and in favour of the plaintiff.
67. Issue no. 5 :
(5) Whether the suit of the plaintiff is barred by limitation? OPD It is submitted by the Ld. Counsel for the plaintiff that the suit is not barred by limitation as cleared from the fact that as per the certificate Ex.DW1/P1 dated 06.10.2017, the final bill is under progress as on 06.10.2017. The suit is filed in May 2018 therefore not barred by limitation. Furthermore, there is nothing in cross-examination of PW-1 that the suit is barred by limitation. However, the plea of the defendant is that the final bill was raised on 28.07.2014, therefore the works were completed prior to 28.07.2014, however the suit is filed on 15.05.2018.
CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 40 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
As per Article 18, the period of limitation in respect of a suit for the price of work done by the plaintiff where no time period is fixed for payment is three years. The three years has been completed in the year 2017. Ld. Counsel for the defendant submitted that the suit is barred by limitation.
68. Though the final bill is stated to be raised on 28.07.2014, however in the meanwhile, the bank guarantee stands extended till 30.03.2015 which was also released on 16.03.2016. Even otherwise there is a performance certificate (Ex.PW1/D1) of 2017 that final bill is under progress. The defendant is also raising plea that they could make payment as not received from the end client i.e. IIT-Roorkee. Therefore, it cannot be held that the suit is filed on 15.05.2018 is barred by limitation. Accordingly, issue no. 5 is decided in favour of the plaintiff and against the defendant.
Issue No. (2) Whether the plaintiff is entitled to interest @ 18% p.a. from the date the amount became due until realization thereof? OPP Issue No. (3) Whether the plaintiff is entitled for cost of suit ? OPP
69. As discussed above, the plaintiff is found entitled for the claim of residual amount of the final bill of Rs. 10,17,407/- and also the claim of Rs. 19,27,264/- deducted illegally from the 6 th and the final bill. However, there is nothing during submissions regarding the rate of interest agreed between the parties in case of any delay or any illegal deduction of payment. The dealing between the parties is of commercial nature, therefore the grant of interest at the rate of 12% per CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 41 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
annum is sufficient. The work is admittedly found to be completed on 27.07.2014 in terms of Ex.DW1/P.1. The security deposit is also liable to be released on expiry of defect liability period i.e. after a period of one year w.e.f. 27.07.2015. The plaintiff besides the sum of security deposit of Rs. 30,45,439/- also entitled the interest on this amount of Rs. 30,45,439/- at the rate of 12% per annum from 27.07.2015 till its realization. The plaintiff is also entitled interest on claim (a) and (b) @ 12% per annum from the date of completion i.e. 27.07.2014 till its realization. The plaintiff is also entitled for the cost of the proceedings. Accordingly, the issue nos. 2 and 3 are decided in favour of the plaintiff and against the defendant.
70. Ld. counsel for the defendant raised the plea that withheld payment could be released only upon receiving from the client IIT- Roorkee. This contention is duly dealt by the Delhi High Court in case titled Kashyapi Infrastructure Pvt. Ltd. Vs. National Building Construction Corporation Limited & Anr. CS (COMM) 1280/2016 dated 01.11.2019, the relevant paras are re-produced as under :
"9. To deal with the aforesaid contentions, it is deemed appropriate to reproduce hereunder the first three paragraphs of the Agreement dated 3 rd September, 2011 between the plaintiff and the defendant No.1,which are as under :-
"This agreement made this 3rd Day of September, 2011 between the National Buildings Construction Corporation Limited [NBCC], a company incorporated under the Companies Act, 1956 having its Registered Office at NBCC Bhawan, Lodhi Road, New Delhi-110003 (hereinafter referred to as the CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 42 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
"NBCC" which expression shall include its administrators, successors, executors and assigns) of one part and M/s Kashyapi Infrastructure Pvt. Ltd. 12/45, Vasundhra, Ghaziabad (U.P.) (hereinafter referred to as the „Contractor‟ which expression shall unless the context requires otherwise include its administrators, successors, executors and permitted assigns) of the other part.
WHEREAS, NBCC, had invited tenders as per Tender document vide NIT No. 80/2011, for "Construction of Office Building for Income Tax Office on Plot A-2/D, Sector 24 at Noida (UP).."
(Hereinafter referred to as the "PROJECT") on behalf of Commissioner of Income Tax, Ghaziabad, Under Central Board of Direct Taxes, Department of revenue Ministry of Finance (Govt. of India) (Hereinafter referred to as the "OWNER") AND whereas M/s Kashyapi Infrastructure Pvt. Ltd. 12/45, Vasundhra, Ghaziabad (U.P.) has also submitted the above referred tender and NBCC has accepted their aforesaid tender and is awarding the contract for "Construction of Office Building for Income Tax Office on Plot A-2/D, Sector 24 at Noida (UP).." on the terms and conditions contained in its Letter of Award No. NBCC/ED-RBG (E&I)/ITO /Noida/2011/3412 dated 1st August, 2011 and the documents referred to therein, which have been unequivocally accepted by M/s Kashyapi Infrastructure Pvt. Ltd., vide their acceptance given on our letter of award resulting into contract."
10. It is evident from a reading of the aforesaid that the Agreement in the present case was entered into by the defendant No.1 in its own name and on its own behalf, with the plaintiff and the defendant No.1 is not found to have entered into the Agreement with the plaintiff in the name of the President of India or CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 43 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
the Commissioner of Income-Tax, as the case was in the judgment cited by the counsel for the defendant No.1. Merely because one of the two contracting parties in the contract discloses that it was entering into the agreement for the benefit of another person, would not make such other person a party to the contract, more so when the contract contains a clause as Clause 83, as reproduced in the order dated 16 th September, 2019. The said Clause is indicative of the defendant No.1, under its Agreement with the defendant No.2, dealing with the plaintiff in its own right, holding in its own right lien over the amounts due to the plaintiff. Not only so, the defendant No.1, in Clause 84 aforesaid of the Standard Form of Agreement which the successful bidder i.e. the plaintiff was made to sign, also provided that the Agreement to be entered into by the plaintiff was with the defendant No.1 and not with the President of India or with the Commissioner of Income-Tax.
11. Though, the counsel for the defendant No.1 has also drawn attention to the Agreement dated 30th March, 2011 entered into by the defendant No.1 with the defendant No.2 (on page 1 part III B file) but therefrom also is unable to point out any clause authorising the defendant No.1 to enter into agreements for the subject works, for and on behalf of the President of India. It was for this reason only that the recital of the Agreement entered into by the defendant No.1 with the plaintiff is different from that of the Agreement entered into by Rites Ltd. in the cases cited by the counsel for the defendant No.1.
12. The counsel for the defendant No.1 has today also drawn attention to Clauses 6.5 and 6.6 of the Agreement dated 30 th March, 2011 entered into between the defendants No.1 & 2 and substantial portions of which have already been reproduced in CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 44 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
the order dated 16th September, 2019 and which provide for the compensation levied by the defendant No.1 on the plaintiff, for any breach by the plaintiff of the terms of the Agreement, being passed on to the „OWNER‟ described the said Agreement as the „President of India acting through the Commissioner of Income-Tax‟ and the cost of the arbitration award related to the Agreement/court decree and/or the cost payable as a result of direction/order of any court attributed to the OWNER in respect of the work done or to be done under the contract to be paid to the OWNER. However, the same also, in my view, will not absolve the defendant No.1 of liability to the plaintiff. Moreover, it is not the case that the Agreement dated 30th March, 2011 between the defendants No.1 and 2 was disclosed by the defendant No.1 to the plaintiff at the time of the defendant No.1 entering into the Agreement with the plaintiff. Significantly the Agreement between the two defendants also provides for arbitration, only between the two defendants, and does not cover the plaintiff and there is no arbitration clause in the Agreement between the defendant No.1 and the plaintiff. If the defendant No.1 was entering into the contract with the plaintiff for and on behalf of defendant No.2, the agreement would have provided for arbitration of disputes arising from the contract in accordance with the agreement between the two defendants.
13. Though the counsel for the defendant No.1 has also drawn attention to a letter dated 1st August, 2011 of the defendant No.1 to the plaintiff to show that the same was for „Construction of Office Building for Income-Tax Office‟ but the same would also, for the reasons already given, not absolve the defendant No.1 of the liability and make the Income-Tax CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 45 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
Officer liable for the work which the defendant No.1 awarded to the plaintiff.
14. The counsel for the defendant No.1 in the same vein has also drawn attention to Page 33 of Part III A file being the Memorandum attached to the Form of Tender issued by the defendant No.1 as proof to show that the same also discloses Central Board of Direct Taxes as the Client/Owner but again to no avail.
Rather in the present case, the document dated 3 rd June, 2011 at page 11 of Part III A file being a Notice inviting tender also shows the tender to have been invited by the defendant No.1 in its own name and not for and on behalf of the President of India, Commissioner of Income-Tax or Central Board of Direct Taxes. Thus, merely because the plaintiff was aware that the contract which the defendant No.1 was entering into with the plaintiff was for construction of a building, not for own use of defendant No.1 but for the Income-Tax Office, would still not make the defendant No.1 a non-party to the contract with the plaintiff.
15. The counsel for the defendant No.1, with respect to Clause 83 in the General Conditions of Contract has contended that the same also provides that the plaintiff was to attend all meetings including the meetings with the Owner/Client i.e. Income-Tax Office. However, in my view, the said imposition on the plaintiff would not come in the way of the plaintiff suing the defendant No.1 for its dues and which are not in dispute.
16. Though the plaintiff has impleaded Commissioner of Income-Tax as defendant No.2 but has not sought any recovery of money from the defendant No.2.
CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 46 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
17. The counsel for the defendant No.1 has also argued that Clause 83 is not a bar to the plaintiff suing the defendant No.2.
18. Having found the defendant No.1 to be not absolved from the liability for the undisputed dues under the Agreement with the plaintiff, for the reason of defendant No.1 having entered into the contract on principal to principal basis and not as an agent, it cannot be said that the defendant No.1 merely for the reason of having disclosed the person on whose behalf it was getting the work done from the plaintiff, would be absolved from the liability under the Agreement.
19. Clause 4.14 of the Agreement dated 30th March, 2011 between the two defendants and which has been reproduced in the order dated 16th September, 2019, also shows that it was the defendant No.1 who was responsible for procurement of all materials and services for the construction, as distinct from procuring materials and services on behalf of the defendant No.2.
20. On enquiry it is also told that tax on payments made by defendant No.2 to defendant No.1 was deducted by defendant No.2 in the name of defendant No.1 and tax on payments made by defendant No.1 to the plaintiff was deducted by the defendant No.1 in its own name. The same also shows the nature of the Agreement between the plaintiff and the defendant No.1 and the Agreement between the two defendants.
21. No merit is thus found in the defence of the defendant No.1 to the suit.
22. I have given an opportunity to the counsels to address on the aspect of interest. The counsel for the CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 47 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
defendant No.1 has merely stated that interest was agreed in Clause 37.3 to be not paid.
23. However, I tend to agree with the counsel for the plaintiff in this respect and it cannot be said that the defendant No.1, which has withheld the admitted dues of the plaintiff, not only till the institution of the suit but even after the institution of the suit and not taken any action for recovery of the monies from the defendant No.2, can be said to be not liable for interest under the said Clause. The clause to that effect would be against public policy and void."
71. Ld. Counsel for the defendant submitted that this judgment was challenged in appeal. However, Ld. Counsel for plaintiff submitted that in appeal the said judgment is set aside only to the extent regarding the interest part and not the principle amount that too when no objection by plaintiff. The relevant para of order dated 14.02.2020 in RFA(OS)(COMM) 05/2020 titled M/s NBCC (India) Ltd. Vs. M/s Kashyapi Infrastructure Pvt. Ltd. is re-produced as under :
......4. " Learned counsel for the appellant/ NBCC states that while passing the impugned judgment, the learned Single Judge has granted relief beyond the scope of the prayers made by the respondent no. 1/ plaintiff in the suit, in as much as even through the respondent no. 1/ plaintiff had not sought a decree of declaration to the effect that clause 37.3 contained in the contract governing the parties, be declared as null and void on the ground that same is against public policy, a specific finding to the said effect has been returned in paras 22 and23 of the impugned judgment.
5. Learned counsel for the respondent no. 1/ plaintiff does not deny the submission made above and states on instructions that he has no objection if CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 48 of 49 M/s Superior Aircon Pvt. Ltd. Vs. NBCC.
the findings returned in paras 22 and 23 of the impugned judgment in respect of Clause 37.3, are quashed and set aside."
72. Indisputably, 22 & 23 of Kashyapi Infrastructure Pvt. Ltd. (Supra) only talks of interest part and not principle amount that too when not objected. The said withholding of amount is not justified in view of Kashyapi judgment(Supra). Therefore, the plea of the defendant that it can release the payment only upon receiving from the client is not justified. The defendant even otherwise cannot raise this plea for indefinite period. In the present case, 10 years already elapsed. Relief
73. In view of facts and aforesaid discussions, the present suit is decreed in favour of the plaintiff and against the defendant :
i) For a sum i.e. Rs. 10,17,407 plus Rs. 19,27,264/- = Rs 29,44,671/- alongwith interest @ 12% per annum from 27.07.2014 till its realization.
ii) For a sum i.e. Rs. 30,45,439/- towards security deposit alongwith interest @ 12% per annum from 27.07.2015 till its realization.
(iii) Cost of the suit be awarded to the plaintiff.
74. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Digitally signedAJAY Announced in the open court by AJAY KUMAR JAIN KUMAR Date:
on 10th September 2024 JAIN 2024.09.10
16:16:52 +0530
(Ajay Kumar Jain)
District Judge(Commercial Courts- 03),
SE/Saket Courts/Delhi
CS (COMM) 33/2019 dt. 10.09.2024 Page nos. 49 of 49
M/s Superior Aircon Pvt. Ltd. Vs. NBCC.