Delhi District Court
M/S G. D Brothers vs Soulgenie Health Pathways Llp on 30 April, 2026
IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
COMMERCIAL COURT-01, SOUTH ,
SAKET COURTS, DELHI
CS (Comm) No. 104/2023
DLST010018582023
&
CS (Comm) No. 302/2023 (Counter Claim)
DLST010047082023
In the matter of :
M/s G.D. Brothers
(Shri Gurudayal Yadav, Sole Proprietor)
40A, Brijwasi Colony
Sultanpur, New Delhi - 110030
......... Plaintiff
Versus
Soulgenie Health Pathways LLP
Through its Partners:
Sh. Arun Goel and Smt. Anita Goel
R/o B-124, Sector -65
Noida, Uttar Pradesh - 201301
CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 1/57
Also At:-
B-36, Sector - 31,
Noida, U.P.
........Defendant/Counter Claimant
Date of Institution of Suit : 23.02.2023
Date of Institution of Counter Claim : 19.05.2023
Date of Arguments : 04.02.2026, 13.04.2026,
23.04.2026 & 24.04.2026
Date of Judgment : 30.04.2026
JUDGMENT
1. This judgment shall dispose off suit bearing CS (Comm) No. 104/2023 filed by plaintiff as well as counter claim bearing CS (Comm) No. 302/2023 filed by defendant/counter claimant.
2. Plaintiff has filed the suit for recovery in sum of Rs. 86,11,428/- (Rs. Eighty Six Thousand Eleven Thousand Four Hundred and Twenty Eight only) against the defendant on the facts that plaintiff is engaged in the work of interior designing, construction and civil work, whereas defendant is engaged in selling online healthcare products and equipments including yoga products. Plaintiff was approached by defendant for interior repair and renovation work in their premises at Noida, U.P. Accordingly, work order/agreement of Interior work was executed between the parties on 29.05.2019, initially for consideration amount of Rs. 1,23,50,000/- , which was replaced by fresh work order/agreement for consideration amount of Rs. 1,90,00,000/- + GST.
3. Plaintiff started the work in said premises and also issued invoices in terms of the agreement from time to time, which were also verified and passed by the Architect (appointed by defendant). Invoices in total sum of Rs. 2,39,23,002/- including CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 2/57 GST were raised by the plaintiff out of which payment in sum of Rs. 1,53,46,524/- was made by the defendant and payment of balance amount of Rs. 86,11,428/- was not made despite repeated requests and reminders by the plaintiff. Legal demand notice dated 25.07.2022 sent by plaintiff to defendant did not yield any result.
4. Plaintiff initiated "Pre-Institution Mediation" proceedings and filed an application for Mediation before the competent authority under Rule 2 (c) of The Commercial Courts (Pre- Institution) Mediation and Settlement Rules, 2018 wherein Non- Starter Report was issued by the concerned authority and the plaintiff was constrained to file the instant suit.
5. After filing of the suit, written statement as well as counter claim bearing CS (COMM) No. 302/2023 was filed by defendant. In written statement filed on behalf of defendant, it was stated that plaintiff in the legal notice had claimed an amount of Rs. 85,76,478/-, whereas in the plaint, it is claiming amount of Rs. 86,11,428/-. Further, no invoice was raised on 11.06.2022 for an amount of Rs. 81,64,661/- and invoice no. GD/22-23/01, fictitiously so claimed to be raised on 11.06.2022 was actually raised on 05.04.2022 for an amount of Rs. 33,87,418/- which was also sent by email on the same date to defendant. However, this fact has been deliberately concealed by the plaintiff in the plaint in order to fraudulently alter the figures of that invoice. Plaintiff has thus filed on record a fictitious bill which was never raised and not filed with GST authorities.
6. It was further stated that the contract value was Rs. 1,23,50,000/- and not Rs. 1,90,00,000/-. The RA bills were paid CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 3/57 by the defendant in accordance with the terms of the work order as and when raised by the plaintiff. The invoices mentioned by the plaintiff in the plaint, as stated, are not depicting the correct picture. Defendant also stated that against the work order for Rs. 1,23,50,000/-, defendant had already paid sum of Rs. 1,53,46,524/- to the plaintiff which includes extra work items, for which rates were duly approved by the defendant. During the course of execution of the work, items stated as Extra Work in the various RA Bills were duly paid by the defendant subject to final settlement of the amount in the final bill after approval of rates for extra work. It was agreed between the defendant and plaintiff that any extra work will be done only after written approval of rates by the defendant for the extra items/work. However, in total contravention of the contractual terms, plaintiff never bothered to obtain written approval of the rates and is now claiming the unapproved rates and claiming the amount as per the unilateral rates quoted by the plaintiff.
7. Defendant in written statement as well as in counter claim mentioned about submission of final bill on 05.04.2022 by plaintiff and issuance of email by defendant dated 14.04.2022, thereby rejecting the claim of plaintiff as not acceptable as there were various issues which were conveniently ignored by the plaintiff. As the final bill was submitted without addressing the concern of the defendant with respect to the charges for the extra items, for which payment was received under the RA Bills without obtaining written approval of rates from the defendant, defendant raised several issues of pending work viz. incomplete and shoddy exterior grey paint by V-Build, Shoddy Woodwork, CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 4/57 non providing of as-built drawing, non-handover of possession with keys, excess recovery of charges in excess of 10% variance in gross violation of BOQ, poor quality of workmanship, failure to do water proofing and termite treatment, delay in completion of the projects etc.
8. It was stated that plaintiff did not bother to rectify the discrepancies as per the work order and abandoned the work midway immediately thereafter as evident from the email dated 14.04.2022. There was no liability of the defendant to make any payment to the plaintiff as the verification of measurement of the work by the Architect was only with respect to the work done and not with respect to the rates for extra items/variations beyond 10% in BOQ items/delay in execution of project/sub-standard quality of work with respect to waterproofing and termite treatment which came to light after it was measured by the Architect etc. Further, it was the plaintiff who did not reply to the email dated 21.06.2022 and only after 2-3 reminders, plaintiff sent a denial about woodwork part on July 17,2022 but did not respond to the concerns flagged by defendant. It was stated that invoice in sum of Rs. 27,38,298/- was raised by the plaintiff towards the extra work without the approval of the defendant and thus the same is not payable in terms of the work order. Rather it is the defendant who is entitled for damages from plaintiff on account of delay in work and loss of business and reputation.
9. It was further stated that defendant with malicious intent has concealed the material fact that defendant had replied to the legal notice dated 25.07.2022 vide reply dated 10.08.2022, whereby defendant had refuted every contention of the plaintiff CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 5/57 and had sought sum of Rs. 74,75,259/- besides terminating the work order awarded to the plaintiff. Plaintiff, as reiterated, has deliberately not made the said reply as part of record.
10. Defendant, as further stated, had paid sum of Rs. 1,53,46,524/- out of total bill amount of Rs. 1,93,73,210/-. Thus, an amount of Rs. 40,26,686/- is balance, which amount defendant is not liable to pay to the plaintiff in view of the amount of Rs. 74,75,259/-claimed by way of set off/counter claim by defendant towards cost of illegal extra work, excess amount realized by contractor in excess of 10% variation, claim towards waterproofing and anti- termite treatment, penalty on account of delay and loss of business and reputation. Thus, after set off, defendant is entitled to counter claim of Rs. 34,48,573/-. Accordingly, in counter claim, defendant sought decree of 'set off' for an amount of Rs. 40,26,686/- and decree of counter claim for an amount of Rs. 34,48,573/-.
11. In rejoinder/reply to written statement as well as counter claim, contents of written statement/counter claim were denied and those of plaint were reiterated and reaffirmed. It was further stated that plaintiff never used any extra items/extra work and always provided the services as per the work order/agreement signed between both the parties. The items and work was checked and verified by the architect and defendant/counter claimant itself and no such objection of illegal extra items/extra work was raised by the defendant and his architect. Plaintiff handed over the property with completion of final work alongwith complete water proofing and termite treatment. Work was completed on time as per the work agreement and there was CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 6/57 no delay in work on the part of plaintiff that too during the period of covid-19 pandemic when the whole world was suffering and there was complete lockdown in the country. The delay, if any, as per the counter claimant/defendant, was the act of god and was not delayed intentionally by the plaintiff. After the lockdown ended, plaintiff immediately completed the project in very efficient manner. Further, defendant used to make part payment of the invoice amount after complete satisfaction of work and quality and quantities of the items used by plaintiff as per the BOQ and the invoice/bills endorsed by the architect itself. At that time also, no objection was raised by defendant regarding the alleged extra work and items.
12. It was further stated that if the work was not done properly and as per the BOQ, then defendant/counter claimant had to raise the objection then and there only. Further, six months grace period was also agreed between the parties for any repair work and any correction of the work, which plaintiff was bound to do free of cost from the date of completion of work till the expiry of six months, but again defendant/counter claimant never raised any query regarding the quality of work. Hence, defendant/counter claimant is not entitled to the amount sought by it in counter claim.
13. Vide order dated 20.02.2024, following issues were framed jointly in the suit and the counter claim:
1) Whether the invoice was correctly raised on 11.06.2022 for an amount of Rs. 81,64,661/- ? OPP CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 7/57
2) Whether the invoice no. GD/22-23/01 claimed to be raised on 11.06.2022 was actually raised on 05.04.2022 for an amount of Rs. 33,87,418/-? OPD
3) Whether the plaintiff was required to obtain written approval with regard to extra work/item beyond the BOQ, if so, its effect? OPD
4) Whether the final work order was against consideration amount of Rs. 1,23,50,000/- or 1,90,00,000/-? Onus on parties
5) Whether the plaintiff is entitled for recovery of suit amount as prayed for? OPP
6) Whether the counter-claimant is entitled for set off/counter claim as claimed? OPD
7) Relief
14. In plaintiff's evidence, Sh. Ram Avtar Yadav, AR of plaintiff was examined as PW1. He filed affidavit of evidence Ex. PW1/1 and relied upon following documents:-
1. Copy of his Adhar Card as Ex. PW1/A (OSR)
2. Copy of Authorization Letter as Ex. PW1/B
3. Copy of two work orders as Ex. PW1/C and Ex. PW1/D.
4. Copy of email dated 30.05.2019 as Ex. PW1/E.
5. Copy of BOQ as Ex. PW1/F.
6. Copies of 12 Invoices/Bills as Ex. PW1/G (colly)
7. Copy of Bank Statement of plaintiff as Ex. PW1/H.
8. Copies of tentative bills/invoices as Ex. PW1/I (colly).
CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 8/57
15. Sh. Shashank Arun, Architect of Defendant's firm was examined as PW2. He filed affidavit of evidence Ex. PW2/1 and relied upon following documents:-
1. Copy of his Adhar Card as Ex. PW2/A (OSR)
2. Copy of BOQ as Ex. PW1/F.
3. Copy of checked BOQ and Raw Bills/Invoice as Ex.
PW2/C (colly).
16. In Defendant's evidence, Sh. Arun Goel, Managing Partner of defendant was examined as DW1. He filed affidavit of evidence Ex. DW1/A and relied upon following documents:-
1. Emails exchanged between the parties as well as between the defendant and Architect during period of 29.05.2019 to 22.07.2022 as Ex. DW1/1 to Ex. DW1/16.
2. Affidavit under section 63 of BSA 2023 in support of aforesaid emails as Ex. PW1/17.
3. Copy of invoice dated 05.04.2022 as Ex. DW1/18
4. Photographs reflecting water seepage and termite infestation as Ex. DW1/19 (Colly), part of which were later on exhibited as Ex. PW2/D1 to Ex. PW2/D3.
5. Office copy of reply dated 10.08.2022 as Ex. DW1/20
6. Original Postal Receipt as Ex. DW1/21.
7. Copy of Calculation of extra amount charged as per BOQ as Mark A.
8. Description of unapproved extra work outside of BOQ as Mark B.
9. Description of BOQ variance beyond 10% for paint job as Mark C. CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 9/57
10. Screenshots of whatsapp conversation between the parties were exhibited during the cross examination of PW2 as Ex.
PW2/D1 and email dated 08.01.2020 was exhibited as Ex. PW2/D2 Issue-wise findings which are being taken up as per the sequence of events, are as under :
17. Issue no. 4 i.e. Whether the final work order was against consideration amount of Rs. 1,23,50,000/- or 1,90,00,000/-: Plaintiff was awarded the work for interior and renovation work at the premises of the defendant. According to plaintiff, after the final negotiations, initially the amount of Rs. 1,23,50,000/- was settled for work at ground floor and half portion of first floor. Work order for Rs. 1,23,50,000/- Ex. PW1/C was signed on 30.5.2019. As claimed by plaintiff, thereafter on the same date, further extra work was included i.e. remaining half portion of first floor and terrace of the building and the consideration amount was settled at Rs. 1,90,00,000/- + GST as applicable . |Second work order in this regard was mailed to plaintiff on 30.05.2019 by AR of defendant. After finalization of the deal and the terms and conditions of the contract, BOQ was supplied and was discussed by plaintiff with the Architect and the defendant.
18. Defendant, per contra, maintained that the work order was issued by defendant firm on 29.5.2019 vide email of the even date at 13:02 hours to the plaintiff which was in sum of Rs. 1,23,50,000. On 30.5.2019, plaintiff requested that work order in CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 10/57 sum of Rs. 1,90,00,000/- be also sent to him and upon negotiations, final work order will be signed. On 30.5.2019, work order was discussed and the defendant and plaintiff finalized the work order for sum of Rs. 1,23,50,000/- which was duly signed by representative of both the parties alongwith official seal of defendant firm and plaintiff accepted the same by counter signing the work order. According to defendant, plaintiff also undertook to knock off the items from BOQ and make the BOQ consistent with the work order for sum of Rs. 1,23,50,000/-. On behalf of defendant, it was also submitted that work order in sum of Rs. 1,90,00,000/- was not signed by any of the parties and the document filed by plaintiff was fabricated document.
19. In cross examination, PW1 denied the suggestion that there were two versions of work order, one was for Rs. 1,23,50,000/- and the other was for Rs. 1,90,00,000/- He stated that two work orders were issued by the defendant. For the first phase, work order was issued for sum of Rs. 1,23,50,000/- and for the second phase, the work was included in the first work order and the total amount was settled for Rs. 1,90,00,000/- on the same date. He denied that the work was finalized for sum of Rs. 1,23,50,000/- on 30.05.2019 and also denied that as the BOQ was for sum of Rs. 1,90,00,000/-, plaintiff was required to revise the same and bring it in line with work order for sum of Rs. 1,23,50,000/-. He also denied that since work order for Rs. 1,23,50,000/- was finalized, it was signed by the plaintiff as well as the defendant.
20. PW1 although admitted that total amount of BOQ of Rs. 1,23,50,000/- was reduced but he sought to explain that some items were reduced and initially two estimates were provided by CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 11/57 defendant. PW1 insisted that both the work orders were signed by the plaintiff and defendant. He also mentioned that BOQ was not prepared by them and they had only mentioned the rate for various works. He admitted that the nature and scope of work as recorded in the BOQ was explained to the plaintiff by Architect of the defendant. He stated that BOQ as originally supplied remained as it is and there was no revision on or after 30.05.2019.
21. DW1, at the same time, in cross examination, cited his ignorance with regard to sequence of two work orders, however, stated that there was only one work order and two work orders in reference were only proposed work orders. He admitted that the work was done in two phases and though BOQ was not prepared by him, it was prepared after discussion. He admitted that part of the building was renovated in first phase and another part in second phase.
22. Work order in sum of Rs. 1,23,50,000/- dated 29.5.2019 signed on 30.5.2019 is Ex. PW1/C which is admittedly duly signed by both the parties and also bears the stamp of the defendant. Work order in sum of Rs. 1,90,00,000/- is Ex. PW2/D signed by both the parties on every page but is not bearing the stamp of defendant. Defendant relied upon email Ex. DW1/1 which is email dated 29.5.2019 at 13:02 hours sent by defendant to plaintiff alongwith two attachments for " Construction Contract Final Document" and " Payment Schedule" , although the attachments of the email communication were not placed on record by defendant.
23. The subsequent email dated 30.05.2019 at 10: 42 a.m. Ex.
CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 12/57 PW1/E is alongwith the attachment of " Construction Contract _ Final_ SAN- 29.05.2019" document. Ex. PW1/E is admitted by defendant, however, it was stated that this email was sent on the asking of the plaintiff from the personal ID of authorized person of the defendant. Attachment to Ex. PW1/E, as mentioned, was the 'Work Order of Interior Work' in sum of Rs. 1,90,00,000/-. BOQ is Ex. PW1/F in sum of Rs. 1,90,45,717/-. Although defendant has stated that the work order in sum of Rs. 1,90,00,000/- was sent to plaintiff at its asking, however, the work order which was finalized was in sum of Rs. 1,23,50,000/- and items were also reduced from BOQ. Admitted BOQ Ex. PW1/F nevertheless refers to the amount of Rs. 1,90,45,717/- . DW1 had stated that BOQ was to be revised to bring it in consonance with the renovation cost at Rs. 1,23,50,000/-. He had also conceded that BOQ was prepared after discussion which is in sum of Rs. 1,90,45,717/- . No other BOQ with reduction of the items or reducing the cost of work at 1,23,50,000/- is part of record, if so settled between the parties, as claimed by defendant.
24. PW2 is the Architect appointed by defendant and examined by plaintiff in its evidence. He was the one, who had introduced AR of plaintiff to defendant and had arranged the negotiations between the parties regarding the consideration amount which included ground floor, half portion of first floor with final negotiation amount at Rs. 1,23,50,000/- for the first phase and thereafter on the same date , according to him, further extra work was included i.e. remaining first floor and terrace of the building and therefore deal was finalized for consideration amount at Rs. 1,90,00,000/- plus GST as applicable. He certified that the CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 13/57 second work order was executed in his presence. He had prepared the BOQ of the said work with consultation of defendant and copy of the same was supplied to AR of plaintiff who was instructed to proceed as per the work order and BOQ.
25. PW2, the final authority on agreement between the parties, was not subjected to any cross examination nor controverted regarding the execution of work order finally executed between the parties in sum of Rs. 1,90,00,000/-. Both the plaintiff witnesses sufficiently explained that the first work order in sum of Rs. 1,23,50,000/- for the first phase of work was superseded by the second work order in sum of Rs. 1,90,00,000/- which included the scope of second phase of work. Defendant did not dispute sending of this revised work order nor the BOQ which was prepared following mutual discussions between the parties and Architect.
26. There is also admission on part of defendant that the renovation work was to be done in two phases and further that no written approval was given by plaintiff to knock off the items mentioned in BOQ. The purpose of preparation of BOQ is to itemize the materials, labour and services required for a project alongwith their respective quantities and costs. In commercial parlance, BOQ enables accurate cost estimation, prepared by experts based on technical drawings. The second work order being in sum of Rs. 1,90,00,000/- , duly sent by defendant to plaintiff through email, subsequent to execution of first work order, coupled with the jointly discussed BOQ with estimated cost of Rs. 1,90,45,717/- and the testimony of PW2 regarding the value of final work order in sum of Rs. 1,90,00,000/-, this CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 14/57 issue stands decided in favour of plaintiff and against the defendant.
27. Issue no. 3: Clause 5 of work order indicates that:
" Any extra work over and above on the provided drawings and BOQ shall not be considered without prior approval in writing from the client".
Further Clause 13 indicates that :
" The contractor shall be given the opportunity to provide his quotation for the works which have not been awarded through this agreement by the date of signing. In all such cases, upon approval of his rates, the contractor shall carry out the works as per drawings and specifications. All the terms and conditions of this agreement shall prevail upon such approval".
28. Based upon the above, defendant stated that a conjoint reading of the said clauses suggests that written approval of rates was a precondition for undertaking any works which were not part of the work order dated 30.05.2019. It was submitted that admittedly there was no written approval obtained from the defendant by the plaintiff. While plaintiff claimed that it never used any extra items/extra work and always provided the services as per the work order/agreement signed between both the parties. It was also the stand of plaintiff that the items and work was checked and verified by the architect and defendant/counter claimant itself and no such objection of extra items/extra work was raised by the defendant and his architect.
29. PW1 in cross examination was put the question that plaintiff had raised bills for extra work which were already inbuilt in the BOQ, being essential in nature. PW1 denied the same. PW1 further admitted that the door frames could not be installed without first putting lintels. However, PW1 remained consistent and denied raising of bills for extra item/extra work CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 15/57 for a sum of Rs. 27,38,298/- for the works which were either inbuilt in the BOQ or for which no approval in writing was given by the defendant. PW1 also explained that never ever any objection was raised during the relevant period of his working at the site. According to him, after the claim was raised, all the objections were taken up as an afterthought.
30. Ld. Counsel for defendant submitted that PW 1 failed to justify that any such approval was waived off or if any such approval was given, he failed to place on record its particulars. Ld. Counsel for defendant submitted that as no written approval was obtained, the extra work for a sum of Rs. 27,38,298/- was wrongly charged by the Plaintiff. PW2 was also put question in cross examination that extra work in the project was to be approved in writing between the parties. He answered that:
" It was the matter between both the parties where defendant was controlling the project documentation as an agreement and plaintiff had direct contact with defendant. They were communicating on and off as and when they deemed fit for their work with us. Otherwise if they deemed that Architect should not be consulted, then they were not consulting those extra works with us before starting it on site. The top terrace water proofing was directly awarded to the contractor without consulting us and when the problem occurred after execution, then client asked us to look into the issue for which we were not appointed as Architect and we provided our services voluntarily in that area".
31. PW2 was re-put the same question with regard to written approval for extra work being mandatory, to which he stated that CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 16/57 he could not comment as it was between plaintiff and defendant. PW2 submitted that he did not understand the meaning of extra work, as contract was between the plaintiff and defendant and PW2 had received the copy of contract after the parties had signed the contract and PW2 had received only BOQ after few months in the work. This witness was therefore asked whether there were certain items which were not covered by BOQ and those items were addressed as extra work. This witness was again unable to comment without going through the documentation and communication while stating that emails were not accessible by him.
32. PW2 was again put question that he had requested plaintiff to obtain specific approval in writing for extra work which was beyond the BOQ in January 2020 and plaintiff followed this only for one month i.e. February 2020. Witness answered that:
"It may be correct but not specific for the time mentioned in the question. It is a general practice that we remind both plaintiff and defendant during the course of project that if you are coming up with any extra work, kindly take/provide the approval in writing to mitigate any future possible conflict which certainly affects the project health. I am not aware regarding the time period of follow up of plaintiff since both plaintiff and defendant were in mutual written agreement. They were wise enough to take their own decisions and worked as suited to both of them".
33. With regard to the question that no rates were approved for the extra work items by defendant, PW2 answered that he had nothing to say as it was decision of the parties. He could only advise which they could consider or reject as per their own CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 17/57 understanding. To the question that he did not have approved rates for extra work, he reiterated that he could not comment about the extra work, however, the bill verification was based upon BOQ items . He stated that they did not have approved rates for any extra work and he might have verified the quantity for extra work if it was so mentioned in bills.
34. DW1 himself mentioned in his evidence affidavit that RA bills were raised corresponding to stages in project. 11 RA bills were raised as per the understanding and according to him when the last RA bills was raised on 5.4.2022, there was dispute because the plaintiff did not make the final bill after taking in account the amount paid for the extra work items for which there was no approval of rates. DW2 testified that no objection had been raised qua any of the RA bills which according to him included the amount of extra work till the raising of last bill.
35. Regarding the questioning of PW2, focus on plaintiff's follow up for approval of extra work, only for the month of February 2020, suggests at least till that time, an inference of admission or waiver to objection pertaining to extra work. Ld. Counsel for defendant was put query as to by which mode , plaintiff had sought approval for extra work for the month of February 2020 and whether any document in this respect i.e. the written approval has been placed on record on behalf of defendant. Ld. Counsel for defendant denied filing of any such written approval on record nor answered with regard to mode of proof vide which the written approval had been obtained by the plaintiff pertaining to the alleged extra work for the month of February 2020. Ld. Counsel for defendant submitted that this line CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 18/57 of questioning was only to emphasize that the written approval for extra work was mandatory.
36. DW1 relied upon Mark A and Mark B and brought on record the copy of calculation of extra amount charged as per BOQ as Mark A and description of unapproved extra work outside of BOQ as Mark B. PW1 had denied Both the documents Mark A and Mark B in the affidavit of admission/denial of documents. Further, in wake of denial by PW1 regarding any extra work performed at the site, it was incumbent upon the defendant to put Mark A and Mark B to plaintiff witnesses which were not put to any of the witnesses in their cross examination. Mark B also includes the extra work pertaining to February 2020 which is contrary to the suggestion put to PW2 that the written approval had been sought for the month of February 2020.
37. So much so, DW1 himself testified in his evidence affidavit that defendant had already paid a sum of Rs. 1,53,46,524/- upon approved rates, which included extra work items. Further during the course of execution of work, items referred as 'extra work' by defendant, were duly paid by defendant in various RA bills, subject to the final settlement of bills upon completion. Defendant, thereby through his own admission, cleared the payment for extra work as well, as per the RA bills raised by plaintiff, not objecting to the lack of written approval for these rates.
38. Defendant does not dispute that plaintiff performed the work termed as 'extra work' by defendant and the sole objection is pertaining to 'non approval' of rates by defendant for such 'extra work/items'. Not only was 'no objection' raised till the CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 19/57 completion of work but also defendant itself had made the payments as per the rates duly approved by defendant as stated in para 5 of the evidence affidavit of DW1. Although plaintiff insisted that no extra work was performed nor it charged for any extra work beyond the cost of project. In this factual position, although the written approval of the rates by defendant was required as per the condition in work order, however, defendant by its own conduct and by making the payments as per the rates approved by defendant itself, cannot raise objection at a later point of time after the completion of the work and after raising of the bills by plaintiff, more so, when the cost of project did not exceed the stipulated and agreed amount, therefore, this objection by necessary corollary is considered as an after thought move on behalf of defendant. This issue stands answered as above.
39. Issues no. 1 & 2 : During the process of execution of work at the site , as stated by plaintiff, it had raised 12 invoices, starting from 11th July 2019 to 11th June 2022. Plaintiff stated that during the process of execution of work, he started issuing RA bills as per the progress of work which were checked and verified by the Architect through BOQ. He stated that for issuance of RA Bills, defendant verbally instructed him to issue partly RA Bills and assured that the pending amount will be cleared with final invoice/RA Bills. Description of the list of bills was detailed as follows:
TABLE NO. 1Sr. No. DATES INVOICE NO. AMOUNT
1 11/07/2019 GD/19-20/11 7,28,650
CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 20/57
2 08/08/2019 GD/19-20/13 14,57,300
3 13/09/2019 GD/19-20/17 11,27,950
4 15/10/2019 GD/19-20/18 8,87,220
5 16/12/2019 GD/19-20/22 14,92,098
6 25/02/2020 GD/19-20/23 12,71,913
7 05/08/2020 GD/20-21/002 11,52,648
8 01/11/2020 GD/20-21/004 15,52,491
9 12/03/2021 GD/20-21/006 8,85,000
10 28/06/2021 GD/21-22/01 32,83,459
11 23/12/2021 GD/21-22/08 19,19,612
12 11/06/2022 GD/22-23/01 81,64,661
40. Plaintiff further referred to the bills dated 15.10.2019, 16.12.2019, 25.2.2020, 5.8.2020 and 15.12.2021 which had not been completely paid by the defendant, leaving the outstanding amount to Rs. 6948823/- alongwith the tax liability of 18 % , aggregating to Rs. 8199611.14. Plaintiff thereafter added another sum of Rs. 411817/- as pending bill amount, now aggregating to Rs.8611428/-. The description of partial bills, checked amount and received/balance payments was tabulated by plaintiff as follows:
TABLE NO. 2CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 21/57 DATE CHECK INVOICE BALANCE AMOUNT AMOUNT BILL IN RS.
IN RS. IN RS.
15/10/2019 9,22,140.00 7,51,881.00 1,70,259.00
16/12/2019 22,30,903.00 12,64,490.00 9,66,413.00
25/02/2020 16,58,295.00 10,77,892.00 5,80,403.00
05/08/2020 16,72,198.00 9,76,820.00 6,95,378.00
15/12/2021 45,36,370.00 N.A. 45,36,370.00
BASIC 69,48,823.00
TOTAL:-
TAX 18% 12,50,788.14
TOTAL:- 81,99,611.14
PENDING 4,11,817/-
BILL
AMOUNT AS
PER BOOKS
GRAND 86,11,428/-
TOTAL
41. Defendant, per contra, claimed that invoice no. GD/22- 23/01 claimed to be raised on 11.06.2022 was actually raised on 05.04.2022 in sum of Rs. 33,87,418/-. Defendant firm, as claimed, never received invoice dated 11.06.2022 amounting to Rs. 81,64,661/- and last bill received by defendant was on 05.04.2022 for sum of Rs. 33,87,418 /-. It was submitted by Ld. counsel for defendant that plaintiff was raising bogus bills which is evident from the fact that in the above table no.2, it was mentioned that as on 15.12.2021, there was total amount of Rs.
CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 22/57 45,36,370/-, for which no bill was raised, however in table no.1 against s.no. 11, bill dated 23.12.2021 was raised for sum of Rs. 19,19,612/-. Bill dated 23.12.2021 was raised subsequent to the date of 15.12.2021 wherein no reference was made that there was an outstanding of Rs. 45,36,370/- or that part bill was being raised. It was further submitted that as per Ex. DW1/11 i.e. email dated 11.06.2022, plaintiff has stated that as per bill dated 25.10.2021, the amount was Rs. 23,82,834/- + 18% GST and as per bill dated 15.12.2021, the amount was Rs. 45,36,370.63 + 18% GST, however, there is no bill dated 25.10.2021.
42. It was also submitted that there is no explanation by the plaintiff, if according to them, the understanding was to raise partial bills w.e.f. 15.10.2019, why plaintiff only raised four partial RA bills on 15.10.2019, 16.12.2019, 25.02.2020 and 05.08.2020. Ld. counsel for defendant further submitted that this statement of plaintiff is incorrect, as after the alleged date of 15.10.2019, plaintiff had also raised five bills on 1.11.2020, 12.03.2021, 28.06.2021, 23.12.2021 and 05.04.2022. Ld. Counsel for defendant further submitted that plaintiff has not been consistent in its own stand and has deliberately not filed on record its ledger details which would have reflected the amount of bills and the withheld amount.
43. Ld. Counsel for defendant referred to the cross examination of PW1 wherein he had admitted that the bill dated 05.04.2022 was raised after measurements of work done by the Architect and no work had been done after 05.04.2022. Although PW1 also stated that service was provided upto June 2022, but no further bill was raised. Counsel for defendant submitted that in CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 23/57 view of the submission made by the plaintiff, it is proved that no bill was raised after 05.04.2022 and thus there was no question of any bill dated 11.06.2022. Moreover, the bill dated 05.04.2022 was for sum of Rs. 33,87,418/- and not for amount of Rs. 81,64,661/- which was claimed under bill dated 11.06.2022.
44. In cross examination, PW1 admitted that bill dated 05.04.2022 in sum of Rs. 33,87, 418/- was raised, however he sought to clarify that it was modified, subsequent to receipt of email and message from defendant. He mentioned that no GST was paid on the said bill dated 05.04.2022 and GST was also not paid on the amount of bill dated 11.06.2022, which was also provisional . He denied that bill dated 11.06.2022 was never sent to defendant. He stated that this bill was sent through email or whatsapp . He denied that he had not filed any details on record because bill dated 11.6.2022 was never sent or shared to defendant.
45. Ld. Counsel for plaintiff referred to email dated 11.06.2022 Ex. DW1/11 whereby plaintiff had sent the approved measurement sheet dated 31.3.2022 alongwith the details of the pending bills which were dated 25.10.20201 in sum of Rs. 23,82,834/- + GST and dated 15.12.2021 in sum of 45,36,370.63 + GST alongwith demand of another balance in sum of Rs. 411817/-as on 31.3.2022. Admittedly, 11 invoices as detailed/descripted in Table no.1 were raised . However, plaintiff claimed that these were partial bills and the actual amount was more than mentioned in bills, subject to settlement in final bill amount. Invoice dated 15.10.2019 was in sum for Rs. 7,51,881/-, however, plaintiff claimed that the checked amount was Rs.
CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 24/57 9,22,140/- and similarly for the other bills as reflected in table no.2. Ld. Counsel for plaintiff explained that the amount mentioned in invoices as per Table no. 2 in column no. 3 was the amount of partial bills,whereas the exact amount was different which was based upon the measurement, checking and final approval by the Architect as mentioned in column no. 2 of Table no. 2.
46. Ld. Counsel for plaintiff demonstrated on record that the invoiced amount vide bill dated 15.10.2019 part of Ex. PW1/I was in sum of Rs. 7,51,881/- which was followed by checking by Architect vide RA bill 04 part of Ex. PW2/C dated 4.11.2019 in sum of Rs. 9,22,140/-. Thereby defendant had the outstanding payment to be made in sum of Rs. 1,70,259/- against RA Bill 04. Similarly, for partial invoice dated 16.12.2019, invoiced amount was Rs. 12,64,490/- which was followed by 05th RA bill bearing endorsement by Architect dated 26.12.2019 part of Ex. PW2/C (colly) in sum of Rs. 22,30,903/-, thereby leaving the outstanding balance in sum of Rs. 9,66,433/-. Similar was for the partial bill dated 25.2.2020 in sum of Rs. 10,77,892/- against the checked amount in sum of Rs. 1658295/- vide RA Bill No. 06 with endorsement of the same date i.e. 25.02.2020. Partial invoice dated 05.08.2020 was in sum of Rs. 9,76,820/- whereas the checked amount was in sum of Rs. 16,72,198/- vide RA Bill No.
07. Lastly the checked amount is Rs. 45,36,370/- against the payment due as on 15.12.2021 as claimed by plaintiff.
47. It was submitted by Ld. Counsel for plaintiff that after many follow ups, quantities were verified, measurements were checked and Architect gave the approval on 31.3.2022.
CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 25/57 BOQ/Measurement sheet dated 15.12.2021 bears the following endorsement from Architect dated 31.3.2022 that:
" The quantities verified by MCCF in presence of contractor and client's representative on 16.3.2022 and then through drawings at office. For rates verification, contractor's agreement shall be referred to by client alongwith all agreed price escalations and revised BOQs during the course of execution. As per rates quoted here, we certify Rs. 45,36,370/- as total outstanding against this measurement sheet ".
48. Since even after or prior to checking by Architect, bill in sum of Rs. Rs. 45,36,370/- was never raised, plaintiff sought to clarify that it was agreed between the parties that all bills/invoices issued by plaintiff in furtherance of the work will be checked and verified by the Architect and decision of the Architect for verification of the work shall be final and binding on both the parties. Defendant was to release 60% of the payment within seven days of bill submission by plaintiff and balance amount was payable after the bills/invoices had been verified by the Architect within 10 days.
49. Plaintiff submitted that prior to issuance of invoice dated 15.10.2019,it was mutually agreed between the parties that plaintiff will further issue partial bills, Architect will verify and check the total invoices and thereafter remaining amount will be paid. As per the mutual settlement, plaintiff started raising partial bills w.e.f. 15.10.2019 till finalization of the work. With regard to final bill in sum of Rs. 45,36,370/-, plaintiff reiterated that quantities were verified by MCCF in presence of contractor and Client's representatives on 16.03.2022, then through drawings at the office which were signed by Architect in presence of both the parties.
50. Plaintiff thereafter conveyed defendant vide CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 26/57 communication dated 11.6.2022, regarding the balance outstanding in sum of Rs. 81,64,661/- which included payment against last bill in sum of Rs. 45,36,370/- as well as previous outstanding payments. In cross examination, plaintiff was put question that he had raised bill dated 11.6.2022 for inflated amount in collusion with the Architect, to which he stated that defendant's representative was present at the time of recording of measurements.
51. PW1 also denied that measurement sheet for sum of Rs. 45,36,370/- had been prepared in collusion with the Architect and same was not payable by defendant. He reiterated that measurement sheet was prepared in presence of defendant's representative and outstanding amount was payable by defendant. PW1 denied the suggestion that the representative of the defendant was only asked to sign the measurement sheet and he was not aware of the actual work done. However, this suggestion put to PW1 itself indicates as acknowledgment of the measurement sheet having been prepared in presence of representative of the defendant.
52. PW2 also substantiated the assertion of plaintiff that the raw bills were being raised alongwith copy of BOQ with complete estimates and varied amount, if any, which was further checked and verified by PW2 as per the progress of work and after checking the quality and quantity of goods used by plaintiff in work. PW2 also stated that if any ambiguity in work and BOQ was found , then same was rectified by him after physical inspection, followed by correction in invoice and after all verification process, copy of checked raw bills/invoice and BOQ CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 27/57 was supplied to the defendant and plaintiff. PW2 was to alter the Raw Bills/BOQ in case of any alteration in quality and quantity of work desired by defendant and only after that, defendant was issuing payment to the plaintiff.
53. PW2 described the process vide which the contractor used to submit the quantity sheet for the work done with the defendant, which used to be forwarded to the Architect by the defendant. After receipt of the same, Architect used to verify the quantities of various items which after verification was certified and thereafter defendant used to fill in the rate and amount in the certified quantity sheet. According to PW2, During measurement/verification many a times, the quantities would increase or decrease which was accordingly certified by them. In one or two RA Bills, quantity sheets were not given to them in the beginning for verification but same were given later on when the parties could not sort it out amongst themselves. This witness also stated about the presence of representative of both the parties during the verification of quantity sheet to maintain transparency. He also named representative of defendant who was initially one Mr. Rajeev and during preparation of the last bill, it was one Mr. Laxmikant.
54. According to PW2, all measurements were verified and certified by him and on one occasion, another architect from office of PW2 had verified and certified on site. This witness also stated about depiction of the 'work done' in the project till the stage of raising of RA bills before these were sent to them for verification. He also clarified that expression 'raw bill' meant the bill submitted by the contractor and after verification said bill CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 28/57 was called RA bill which was forwarded to the defendant for final payment. For the initial 2/3 bills only, quantities were checked and verified by them and for the subsequent bills, they used to calculate the final amount of the RA bill based on quantity sheet which was then forwarded to defendant with recommendation of payment after withholding retention amount for defect liability period.
55. PW2 stated that there was no communication with them regarding the final closure, after the work was concluded and they were under the impression that the work had been amicably closed or was under closure between both the parties. He stated that sometime in March 2022, quantity sheet with rates was given to them for verification and corroborated the version of plaintiff that it was verified by them in end of March 2022, in presence of representatives of both the parties and final payment was suggested and submitted to the client with their closing remarks. He stated about the presence of Mr. Laxmikant and Mr. Ram Avtar i.e. PW1 during the process of verification. He also stated that Mr. Laxmikant on behalf of defendant was monitoring the execution of work, so even if he was a layman, it will be presumed that he had knowledge of what was happening in the project and before Mr. Laxmikant, one Mr. Rajeev was monitoring the project on behalf of defendant.
56. None of the above named representatives of defendant, who were monitoring the project on behalf of defendant, have been examined as witness in the matter. It is unlikely that the presence of the representatives of the defendant, who had been monitoring the project, shall be only to sign the measurement CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 29/57 sheets without being aware of the actual work done. Prudence definitely does not warrant the same and both the parties in the commercial transactions ought to be aware and conscious of the same. The measurement sheet having been prepared in presence of defendant's representatives and the RA bills checked and approved by the Architect who was final authority on the same, does not leave any doubt with regard to genuineness and correctness of the amount quoted in RA Bills Ex. PW2/C (colly).
57. Defendant relied upon Ex. DW1/18 i.e. invoice bearing no. GD-22-23/01 dated 5.4.2022 in sum of Rs. 33,87,418 which was disputed by the plaintiff submitting that it was replaced by bill dated 11.06.2022 as per the discussion between plaintiff and defendant. Although defendant in the pleadings, in cross examination of PW1 and in his own evidence affidavit maintained, regarding the raising of last bill dated 5.4.2022 and negated issuance of any bill dated 11.6.2022, while submitting that no bill was raised after 5.4.2022. However in his own cross examination, he stated that he did not remember when partial bill dated 5.4.2022 was raised and further stated that to his recollection, there was no partial bill. He stated that he used to receive the bills raised by plaintiff through email. Bill dated 11.6.2022 though is not in the format of invoice but mere communication vide email dated 11.6.2022. This communication , nevertheless, refers to last RA bill amount of Rs. 45,36,370/- and previous outstanding payments.
58. To the subsequent question that final bill dated 11.06.2022 was raised by the plaintiff which included all the partial bill payments and due bills, witness did not dispute or deny the same CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 30/57 and stated that it was matter of record. Suggestion to plaintiff in cross examination that he had raised bill dated 11.6.2022 for inflated amount in collusion with the Architect, also leads to acknowledgment by defendant with regard to raising of bill vide communication 11.6.2022, which was amounting to Rs. 81,64,661/-.
59. Accordingly, the bill/communication dated 11.06.2022 which was inclusive of all the pending bills and the last unpaid liability, superseding the earlier partial bill (as so claimed by plaintiff), both these issues stand answered in favour of plaintiff and against defendant. However, whether the plaintiff shall be entitled for the amount as claimed on 11.6.2022, shall be answered during discussion upon issues no. 5 & 6.
60. Issues no. 5 & 6 : Plaintiff submitted that it completed work of both the phases by January-February 2022. Snag list later on was also completed and plaintiff provided services against defect liability period upto June 2022 but the payments had not been cleared by defendant. Plaintiff claimed that the consideration amount as settled between the parties was in sum of Rs. 1,90,00,000/- + GST as applicable i.e. Rs. 2,24,20,000/- (with 18% GST amount) plus 10% (+/-) variation. Plaintiff charged Rs. 2,39,23,002/- as per the work done, however, he had received amount of Rs. 1,53,46,524/-, leaving the outstanding balance at Rs. 86,11,428/-.
61. Defendant disputed the said claim on many counts based upon delay in completion of the work, deficiencies in the performance of work, claim for extra items not approved by defendant , incorrect amount of bills and further in counter claim CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 31/57 made its own claim for damages due to delay, for business losses and the claim for excess payment beyond permissible variation and further the claim for redoing of water proofing and anti termite treatment.
Delay in work:
62. Ld. Counsel for defendant submitted that project was required to be completed within 45 weeks w.e.f. 30.5.2019 i.e. by April 2020. However, the final bill for an amount of Rs. 33,87,418/- that too towards incomplete work was raised on 5.4.2022, after a delay of 24 months. Ld. Counsel for defendant referred to the penalty clause in work order for delay.
63. Clause 2 of the work order under the heading 'Penalty For Delay' indicates that :
" 2. 0.5% (Half Percent) per week of " Contract Value" subject to a maximum of 2.5% of the contract value. For undue delays beyond 5 weeks, Soulgenie Health Pathways LLP reserves the right to terminate contract and get pending work done from the alternated contractors of their own choice. The cost for the new contractor shall be recovered from previous contractor bill".
64. It was submitted by Ld. Counsel for defendant that since plaintiff delayed the performance of the work, therefore, defendant is entitled to a claim of 2.5% of the total contract value for delay beyond 5 weeks which works out to Rs. 4,75,000/-.
65. PW1 conceded that project was not completed in time. However, explained that due to covid period, work was stopped and prior to that, because of government restrictions with regard to pollution, work was stopped and lastly because defendant's wife had been suffering from covid, therefore there was no entry in their house. Consequently, work was delayed because of the said reasons. He stated that work anyways was completed by end CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 32/57 of December 2021. He further stated in cross examination that they had completed first phase of project by December 2021 and thereafter they commenced the work in other portion after defendant vacated the same. According to plaintiff, after completion of work of second phase of other portion, it was also handed over to defendant in January-February 2022.
66. PW2 denied that there was delay of 24 months in completion of work which was attributable to contractor. He also corroborated the testimony of PW1 regarding the delay having been caused due to onslaught of covid-19 and pollution restrictions. He stated that there was pollution break of approximately more than 2 moths in 2019 and then in beginning of 2020 for few days, thereafter for 5 to 6 months, no work could be done because of covid in 2020. Afterwards in 2021, again lockdown was imposed and work could not completed, followed by another pollution break in 2021. He further mentioned that the project was planned in two phases with approximate time line of 15 months period and execution of the project was done as per the work order.
67. PW2 stated about completion of first phase at around October-November 2020 and then corrected to September- October 2021 and stated about bill closure for second phase around March-April 2022. He acknowledged creation of whatsapp group comprising of client i.e. defendant's representative , architect and the contractor. He did not remember if a message was received on 22.12.2020 in the group with regard to delay in execution of project by contractor. He stated that in the said whatsapp group, detailed discussion with regard to CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 33/57 project execution were happening on regular basis and delay in project was subjected to various factors to which everyone was aware and client was also informed about the environmental closures laid down by NGT and thereafter imposition of covid restrictions. He reiterated that during covid restrictions, work was stalled for two month from March 2020 till June 2020 and even thereafter, there were restrictions which delayed the completion of work.
68. Witness was referred to whatsapp conversation Ex. PW2/D1. He stated that this conversation did take place but was not complete conversation. Ex. PW2/D1 refers to the following communication between the parties:
22.12.2020 , Defendant to PW2:
" Although RA teams are on site, I don't see the work closing anytime as per his deadline of Jan 15. Would request you to please monitor various linkages actively to push him towards closure asap as we need to move in urgently. Also, would request Sunny and you to please proactively provide any design/project inputs that may be pending so that he feels pressured to finish".
PW2 responded that:
" Hi Arun, I'll make a visit to site on Thursday afternoon to see the work progress and will talk to RA on site regarding handover schedule.
Regarding any design related things, we are immediately providing drawings and details as the contractors demand. Besides, furniture and furnishings also are crucial tasks now to complete work on time. Hence, I request you to take care of those things and their timely deliveries/installations in sync with site teams".
PW2 again communicated that:
I had a word with Karan but could not get through Bhuvan. Karan informed that his main person is back from village and he will be able to finish it by 15th July + /- 2 days. He also stated the issues which you mentioned".
06.07.2021, defendant to PW2 :
CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 34/57 " Hi Sunny Shashank, For our meet, could you also please bring along the 2nd phase plans that we envisaged?
Also, as I am extremely skeptical of RA's ability to mobilize resources at this time including supervision and execution resources, we really need to brainstorm on how to MINIMIZE changes in our existing set up and get the project finished asap. "
69. Apparently defendant chose to selectively place on record and confront the witness with the only communication that appears to suit their position. Although even these communications show PW2 requesting defendant to provide drawings and details and to ensure timely deliveries/installations. PW2 testified that this communication did not constitute the complete conversation. He clarified that as Architects, their role was to provide consultancy and support as desired by client specifically pushing up the contractor to align the teams for work and minimizing changes in second phase of work.
70. Witness was further referred to email dated 08.01.2020 Ex. PW2/D2 with following mention:
" Just an update. The work on site has slowed down considerably. It appears RA is not being able to coordinate or get together his vendors. Or he is trying to club work so that he saves on daily costs of plumbers, vendors etc. Either way, this is having an impact. As you know, we are facing considerable inconvenience living under construction. Would request you to please understand and push him towards completing the project with greater energy.
Also, I feel piecemeal working in portions without focused direction may be having an impact on quality. Would request you to please review on site these aspects/concerns.
If there is any aspect such as vendor finalization to be done at out end please let me know.
We really need to expedite. Tarush is going to have his boards from Mid February, so would like maximum work at basement, ground, driveways and courtyards etc. to be addressed.
Request you to effectively coordinate please" .
71. Witness admitted the existence of this email CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 35/57 communication addressed to him but stated that he did not have access to his company email account, therefore, he did not remember which email response was given but stated that based on request of client, necessary instructions were given to contractors. Defendant again seems to have chosen to file on record only the fragmented version of the communications to confront the witness with selective email communications, expressing concern to architect, while suppressing the architect's replies or broader email trail.
In P.K.Gupta & Anr. vs Ess Aar Universal Pvt. Ltd. & Anr. RFA(OS) 78/2011, it was noted that :
"11. We need to highlight that the fundamental principles, essential to the purpose of a pleading is to place before a Court the case of a party with a warranty of truth to bind the party and inform the other party of the case it has to meet. It means that the necessary facts to support a particular cause of action or a defence should be clearly delineated with a clear articulation of the relief sought. It is the duty of a party presenting a pleading to place all material facts and make reference to the material documents, relevant for purposes of fair adjudication, to enable the Court to conveniently adjudicate the matter. In this context it may be highlighted that deception may arise equally from silence as to a material fact, akin to a direct lies. Placing all relevant facts in a civil litigation cannot be reduced to a game of hide and seek. In the decision reported as 2011 (6) SCALE 677 Rameshwari Devi Vs. Nirmala Devi the Supreme Court highlighted that pleadings are the foundation of a claim of the parties and where the civil litigation is largely based on documents, it is the bounden duty and obligation of the Trial Judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties."
Reliance is further placed upon Gauri Shanker vs State Of Rajasthan , CIVIL APPEAL NO. 3701 OF 2015 (Arising out of SLP (c) 30561 of 2014, wherein while referring to Gopal Krishnaji Ketkar v. Mohd. Haji Latif & Ors., it was observed that :
"5. .........Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 36/57 controversy and to rely upon the abstract doctrine of onus of proof.
In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, Lord Shaw observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision. With regard to third parties, this may be right enough- they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
72. PW1 as well as PW2 in categorical terms have stated about the covid restrictions and the pollution breaks and further the own suffering of wife of defendant which led to delay in completion of work. PW2 denied that on account of undue delay in completion of project, defendant/counter claimant had suffered damages. He stated that "in any project, all the stake holders (client), contract, Architects, Govt. Authorities, have to provide their decision or action in a timely manner and if anyone deters from their duties and responsibilities, then the project is the ultimately sufferer. So in this project, a client's decision consumed sometime, whereas due to Govt. Regulations, there were three to four interruptions in executing the project. Also bill to payment cycle is also an important parameters to keep the project under control. Though we were not directly involved in checking the payments, but there were few instances where contractor showed his inability to continue project in full swings due to delay in payments. However, whenever asked to ask client directly or write to him directly, we don't know , if he did so".
73. PW2, at the same time, admitted that his payments had never been withheld though delayed and he was not to comment with regard to payments payable to plaintiff and reason for CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 37/57 withholding of the same. DW1 in cross examination initially denied that the site was closed in 2020 due to pollution in Delhi , however, admitted that during lockdown period of covid 19, construction site was closed. He also admitted that in the year 2021, he had covid in his family and according to him, it was for total period of 5 days. In further cross examination, DW1 seems to have forgotten his earlier response and stated that nobody had suffered from Covid in his family during the year 2021.
74. DW1 admitted in cross examination that he had never issued any written warning, rejection, penalty notice during execution of work. However, he stated that he had complained in writing to the Architect concerned. He denied that he had not made any of ARs as witness who were aware about the meticulous work done by the plaintiff and were fully satisfied that is why no objection like delay or defect was served in written by defendant and neither by any of his ARs and not even by the Architect. DW1 nevertheless conceded that he was aware that during covid period, lockdown was imposed by the government leading to complete prohibition of construction work at sites. According to him, he fully cooperated with the instructions given by the government and was aware that plaintiff was adhering to the same restrictive guidelines.
75. During the period of COVID-19 pandemic, government lockdown protocol mandated closure of both private and public project . Also Lockdowns and the fear of COVID-19 led millions of workers to return to their hometowns, leaving construction sites with insufficient staff to continue operations. Workers who contracted the virus or were exposed to it were forced to CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 38/57 quarantine, severely limiting the available workforce. Further, during the second wave of COVID-19, restrictions were again tightened, causing significant labor scarcity, supply chain disruptions, and suspension of work. Additionally site stoppages were necessitated by specific government orders banning construction activities due to severe pollution levels. Conceding these facts, DW1 also affirmed that both parties were navigating the 'force majeure' event, wherein government-mandated waivers and the strict lockdown protocols prevented any work continuity during the affected periods.
Having acknowledged the constraints during the covid period & due to pollution breaks, it is inequitable for the defendant to complain about delays stemming from force majeure conditions, beyond control of either of the parties, as these were uncontrollable events, not performance failures.
Counter Claim for Business Losses in sum of Rs. 25 lacs :
76. It was also submitted by Ld. Counsel for defendant that defendant had opted for the renovation work in his property as they needed extra storage space for expanding their e-commerce business in new markets of Japan as well as new channel partner like famous Walmart of USA. On account of delay in completion of project, defendant suffered huge losses as they could not expand the business as expected. Due to these delays, defendant was unable to get the storage space in time and it had to delay the launch in the market in the end of 2020, with delay of almost 2 years. As submitted, on account of lapses on the part of plaintiff, defendant is claiming losses to the reputation and business to the tune of Rs. 25 lacs although the actual loss suffered is much more CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 39/57 than the amount claimed. It was also submitted that not only plaintiff delayed completion of project but also during the execution of the project, plaintiff got access to the office of defendant and surreptitiously lured employees of defendant not only to better understand defendant's business and trade secrets but also offered employment to them to set up and execute the same business model for plaintiff for the same products and access to the same resources. Thereby, defendant on account of this grossly unethical act suffered till date, yet restricted its claim of business losses only to sum of Rs. 25 lacs, even though it is insufficient to cater to the financial loss and mental anguish caused by this act.
77. According to PW1, he was not informed about any expansion plan by defendant which was scheduled for December 2021. PW1 denied that he had stolen the business concept of defendant while working on the project or that because of this reason, he had deliberately delayed the execution of the project so as to get ample time to understand the business of the defendant. He explained that he visited office of defendant only upon his asking and some delay was caused which was because of the reason as earlier explained by him. To the contrary, DW 1 was given suggestion that he harassed the plaintiff by withholding final payment because plaintiff was doing same kind of work, as he was doing and plaintiff was getting popular in that business and due to jealousy and vengeance, he did not release the final payment as per bill dated 11.06.2022.
78. Regarding the defendant's counter claim for the alleged business losses, in sum of Rs. 25 lacs, due to delay caused by CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 40/57 plaintiff and defendant having lost the business opportunities during the relevant period, it is inherently improbable that when the entire world was suffering from covid pandemic, defendant could have secured such opportunity, for which the blame is being put upon the plaintiff. Besides that, there is no iota of evidence brought on record by defendant with regard to any such business opportunity, any amount of loss suffered due to delay and even with regard to allegation against plaintiff having stolen the business concept of defendant. Consequently, defendant having failed to establish any business losses caused due to conduct of plaintiff, counter claim is found speculative, baseless, dis-entitling defendant to receive any amount qua this aspect much less the amount of Rs. 25 lacs.
Deficiencies in work:
79. Defendant contended that the plaintiff failed to fulfill its contractual obligations, leaving the exterior grey paint shoddy and incomplete and the substandard wood work. Furthermore, plaintiff failed to deliver as-built drawings, failed to hand over lawful possession with keys and provided poor quality of workmanship. The plaintiff's failure to perform adequate water proofing and anti-termite treatment , led to severe seepage and termite infestation. Due to this breach, defendant was compelled to engage a third party contractor for repairs, incurring damages/charges in sum of Rs. 2,10,000/- which is hereby claimed in the counter claim.
80. Plaintiff disputed the allegation that the work done by him was shoddy in nature or that from time to time, emails were sent to him for rectifying the defects for which he did not take any CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 41/57 corrective steps. PW1 stated that there was no deficiency in his work and all the modification asked by defendant were done by him and only thereafter measurement/work sheets were checked. DW1 referred to email dated 21.06.2022 Ex. DW1/13 whereby defendant conveyed to plaintiff regarding the shoddy exterior paint work, shoddy wood work with bent panels and non providing of as-built drawings. Defendant also conveyed about substandard quality issues, such as water floodings, seepage which, as stated, had already been brought to the notice of plaintiff. This email was preceded by email dated 06.06.2022 Ex. DW1/9 whereby plaintiff had conveyed about the completion of work of both the phases, second phase having been completed on 01.01.2022, notifying defendant that all the snag listed and identified on or before 30.6.2022 shall be their responsibility. Email dated 06.06.2022 was followed by reminders Ex. DW1/11 and Ex. DW1/12 which were placed on record by the defendant itself. Thereafter vide email Ex. DW1/13, defendant conveyed the deficiencies and shortcomings in the work, as noted above.
81. Vide email dated 17.07.2022 part of Ex. DW1/16, plaintiff informed following to defendant :
" First of all let us tell you that GD Brothers does the work of wooden furniture. We are not responsible for any problem in wooden furniture work. I am not responsible if any other work is damaged due to furniture work.
I have sent you the final bill many times.
As per our books a balance of Rs. 4,11,817/- is outstanding as on 31.01.2002.
Some or our bill payments are pending, the details of which are 25.10.2020 - Rs. 23,82,834/- (+GST) 15.12.2021 - Rs. 45.36,370/- (+ GST) 50% of our security deposit should have been paid by the date of last bill of contract but such payment has not come till date and today it has been almost 6 months since the work has been awarded and as per the contract now you will pay us 100% CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 42/57 I am facing trouble and malpractice on the part of my vendors because of your non-payment, which is very upset, according to the bills, the one who makes my money should be given to me and clear the account But if you still face any problem in the work done by me, then now I am not responsible for that because you have not paid my original payment yet but the terms of the contract are broken by you and not G.D. Brothers on behalf of We are being harassed again and again by our threats As per the contract 15.12.2021 Second phase and first phase were handed over to you on 30th May 2021 so after completion of liability period we do not bear any responsibility as you are neither paying the payment nor agreeing to the terms and conditions.
Till date you have not paid our balance bills please get it done as soon as possible".
On the query put to Ld. Counsel for plaintiff, he clarified that in the first line of email, there was typing mistake that ' GD Brothers does the work of wooden furniture' which ought to be that 'GD Brothers do not do the work of wooden furniture', which is also so reflected from the subsequent content and context of the email.
82. Vide email dated 21.7.2022 Ex. DW1/15, defendant informed the following to plaintiff:
" Your mail is totally surprising and disregards our earlier reply to you.
You have still not replied to our mail requesting approval sheets of all extra works, nor have you handed over the project nor completed it as pointed out in our earlier mail Further, now, you are denying responsibility for the woodwork completed by you which only proves the substandard quality of work being done by you as raised in our earlier mail.
As you did not respond to even the architect consultant email to do the needful we have gone ahead and started overhaul work immediately due to the critical nature of the damage after giving you relevant time. Please note that you will be responsible for all costs and inconvenience in this regard (attached pics for your reference).
Moreover, please note until the project is completed and handed over, ALL running bills (even those paid in full) are open to scrutiny and audit and any discrepancies will need to be accounted for.
Waterproofing - Also pics are attached showing clearly the lack of waterproofing that you claim to have done and charged for.
You are once again requested to provide all info as requested in our earlier mail to take the matter to its final settlement".
CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 43/57
83. Plaintiff vide email of even date at 7:25, part of Ex. DW1/16 replied that:
" As spoken to you (Mr. Arun Goel Ji) on telephone conversation on 21.07.2022 at 18:47 P.M. that you are not ready to take any of our services and you said that I am going out of Noida on 22.07.2022. I will come back around 30.07.2022 after that I will talk about the payment.
So I request you to make the payment after I come back as soon as possible".
84. Defendant vide email dated 22.7.2022, part of Ex. DW1/16, further informed:
" Yes. That is because we are dissatisfied with your service and extremely poor quality due to which were are doing on our own expense due to lack of your ability to execute.
This has forced us to be out of our premises in the coming week so that all replacements and repairs can be addressed.
Regarding payment, all relevant has already been stated in our earlier mails to you. Kindly provide All the needful you have still not provided. And also indicate the compensations you will be paying for shoddy work."
85. Defendant relied upon photographs Ex. DW1/19 and Ex. PW2/D1 to Ex. PW2/D3, reflecting water seepage and termite infestation as on 20.7.2022. PW1 was also put question that on account of poor workmanship, there was water leakage in the drawing area for which defendant had to get the water proofing done again alongwith termite treatment. PW1 stated that they had provided services till June 2022 and there was no complaint regarding water leakage or termite. According to plaintiff, defendant had manipulated the photographs taken during the period of working by him.
86. PW2 was asked about forwarding of a video to AR of defendant on his asking . He stated that problem captured in the video was of the time when the work was going on and problem was rectified. Although he was not able to say if the video CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 44/57 captured the issue as on 21.8.2021 and stated that he could confirm the date only after checking his phone. He admitted that there was water proofing issue on terrace parapet which was already existing prior to the commencement of work and same was out of the scope of his consultancy. He stated that however when the same could not be rectified by the contractor, it was brought to their notice and he had advised to do some grouting work and some water proofing work to rectify the problem. He believed that the problem was rectified as after that, no complaint was made about leakage.
87. PW2 was put question as to who informed him about the rectification of water leakage in the property and when did they come to know about it, to which he answered that he got to know about the water leakage in the property which was at four places i.e. in basement, top terrace, on the lower terrace leakage from the side wall of the shaft and on the lower terrace on the front side. Rectification was done by the contractor. Plaintiff informed them about the issue. He did not remember who told him about the rectification and when. No further question was put to this witness on this aspect.
88. Witness was also put photographs regarding water seepage on terrace parapet wall Ex. PW2/D1 to Ex. PW2/D3. He stated that from perusal of the photographs, he could not locate the exact spot as the roof top was not visible. He admitted that while he was providing his consultancy, woodwork was done for TV console fixtures, wall paneling and master bed room bed with side stools. He was not sure as to what amount of work was done by the contractor in this regard. As per his recollection, there was CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 45/57 one petty contractor for the said purpose. He admitted that there was some termite infestation in the wood work in the master bed room, however stated that the said work was done by another contractor, therefore, he could not comment upon the quality of work. He further stated that apart from this, wood work was done in the basement, ground floor, kitchen and first floor and some work with respect to wardrobe was also done by another contractor. He stated that as there was another contractor for woodwork in the project, therefore, he did not remember exactly what all was done by another contractor. He stated that he could answer only after looking at the document including billing document and measurement sheet alongwith his certification with respect to work done by the respective contractors.
89. PW2 further stated that he was never informed about termite infestation in the wood work done. He explained that termite infestation does not stop in one go and it is a periodic process as the property in which the work was going on, already had the issue of termite infestation. He admitted that some communication happened with respect to termite infestation in the master bed room. Matter was discussed with the contractors but the same was got rectified by defendant through another contractor on his own. He stated that as per the work order, there was a defect liability period of six months or one year during which the contractor was under obligation to rectify the defects under his scope of work.
90. With reference to his answer that the property in question had termite infestation, PW2 was asked if this was so, why was the same not included in the BOQ prepared by him, to which he CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 46/57 answered that during the initial discussion with client regarding termite infestation, they discussed that it would be better if they appoint a specialized agency to do termite treatment in the project because termite infestation could be treated by periodic termite treatment and it takes longer duration of agreement with the agency. The other option was also discussed that it could be kept in the regular BOQ with the general contractor but in that case, the follow up at the later stage would be difficult due to intricacies of regular follow up with that agency. PW2 was put question that no document of such initial discussion was ever prepared by the parties with respect to termite treatment. He answered that during the design discussion, a lot many issues and procedures were discussed but not everything comes in written statement or Minutes of Meeting as there were almost 'Nil Minutes of Meetings' prepared during the design and BOQ discussion and preparation period.
91. Witness was put question that no email or letter was ever written by him to the defendant with respect to alleged termite infestation in the property to which he answered that he did not write any email or letter pertaining to any work except for Bill verification. He was put suggestion that he was not able to indicate any document with respect to termite infestation because nothing was discussed regarding termite infestation at the stage of BOQ preparation and his statement in this regard was false. He denied the said suggestion while answering that verbal discussion took place between them and client regarding all the elements which were involved in the project and it was client's conscious decision which was not recorded in any MOM, email CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 47/57 or document, understanding that they were going to appoint their own agency for termite infestation as and when required and they would like to go back to their physical documentation which was available with them and get back to them afterwards with more clarity.
92. Perusal of email exchange between the parties indicate that the plaintiff as per his own submission, had completed the work in January-February 2022. Vide email dated 30.03.2022 Ex. DW1/5, defendant provided snag list pending for closure, to Architect examined as PW2 in the instant proceedings. It was mentioned that the snag list had been shared with plaintiff and plaintiff had committed to close shortly. Snag list contained the following description:
1. Wooden flooring needs to be repaired near the Mater Tarush Room
2. Final cleaning, finishing and sealer coating is pending od driveway stone.
3. Painting touchup and repairing needs to be done in miscellaneous places (1st floor kitchen etc.)
4. The 1st floor kitchen door's handles are not fixed. (pending)
5. Under sink waster jali needs missing in Tanya's washroom
6. Master bedroom's (major seepage) tracing and fixing with permanent solution
7. Grouting and checking for seepage route of ground floor washroom near driveway shaft.
93. Vide email dated 14.04.2022, Ex. DW1/6, defendant informed plaintiff that the invoice as raised was not acceptable and told plaintiff to replace the invoice 'as discussed'. Said communication was followed by email dated 20.05.2022, Ex. DW1/7 sent by plaintiff, seeking the release of payment. Vide email dated 23.05.2022, Ex. DW1/8, defendant informed plaintiff that 'as discussed, work was pending till now'. Plaintiff thereafter vide email dated 06.06.2022, Ex. DW1/9 informed that CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 48/57 all the snags listed and identified on or before 30th June 2022 shall be their responsibility and also informed that their teams were visiting to correct the paint work but defendant was busy due to some personal reasons, so it was not pending because of plaintiff. It was also informed that plaintiff was committed to finish all snags and requested defendant to keep payments separate from the snag list.
94. Now defendant informed plaintiff vide email dated 06.06.2022, Ex. DW1/10, that there were no pending/dues and plaintiff should compensate for major losses of business and manpower. Plaintiff again vide email dated 11.06.2022, Ex. DW1/11 sought release of the pending payments after sending measurement sheet and approval by Architect, alongwith enclosure of final bill. This was followed by another email dated 18.06.2022, Ex. DW1/12. Thereafter vide email dated 21.06.2022, Ex. DW1/13, as per the documents placed on record by defendant itself, for the first time plaintiff was informed by way of email regarding shoddy exterior paint work (vbuild), shoddy woodwork with bent panels etc. and also about the demand for compensation/penalties for sub standard quality issues, such as water floodings, seepages etc. There was no mention of termite infestation till this point of time. Defendant thereafter informed to the plaintiff that since plaintiff had failed to do the needful, therefore, defendant had started overhaul work, for which plaintiff shall be responsible for all costs and and inconvenience in this regard.
95. It was only in the email communication after June 2022, that the defendant started stating about substandard quality of CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 49/57 work without detailing the exact details requiring remedial measures. In terms of the conditions of work order, for the failure of plaintiff, defendant could have deputed other agency to rectify the defects at the risk and cost of contractor.
96. Relevant para of clause 3 stipulates that :
" In case the contractor fails to satisfy the client with their workmanship or timeline to execute various works on weekly basis, the client shall give a notice to correct it twice before terminating the contract without giving any further notice and forfeit any balance payment to execute the balance work at Contractor's risk and cost, as deemed fit by Engineer-In- Charge. The contractor shall have no claim on any account whatsoever for the pending/deficient works".
97. There are rival submissions pertaining to existence of defects and quality of the work. Defendant while has claimed the termite infestation and also the water seepage problem, besides other deficiencies, plaintiff per contra has asserted about the completion of the snag list. Architect PW2 also stated about the appointment of separate agency for termite treatment since it required periodical assessment which according to Architect was not the job of plaintiff. Regarding water leakage and seepage, PW2 also testified that the rectification was done by the contractor. In answer to further question, PW2 stated that he did not remember who told him about the rectification and when. But it was not followed by any other question on this aspect, thereby testimony of PW2 remained un-controverted pertaining to factum of rectification, having been done by the contractor.
98. While the defendant submitted photographs bearing dates 16.07.2022, 20.07.2022 and 21.07.2022 to allege poor workmanship, plaintiff claims that defendant has manipulated the photographs taken during the course of performance of work by the plaintiff at site. Even accepting these photographs as CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 50/57 accurate and depicting the correct factual position as on 22.07.2022, defendant could have rectified the issue from any agency at the risk, cost and consequences of the contractor, thereby plaintiff shall have been liable to pay the cost incurred for the purpose of rectification. However, defendant failed to file bills/invoices, cost certificate etc. to quantify the expenses for the rectification done at the cost and consequences of the plaintiff.
99. DW1 in cross examination admitted that he had never issued any written warning or penalty notice during the execution of work. Although he stated that he had filed on record the written complaint but conceded that he had not taken any independent expert opinion despite claim of unsatisfactory work. Although he sought to submit that it was self evident that the work done was not satisfactory. Nevertheless, defendant failed to substantiate the alleged rectification cost, consequently is not entitled to deduct or counter claim any amount qua this head from the plaintiff.
100. Variation: Defendant had also raised objection with regard to variation in BOQ quantities. It was submitted that as per the BOQ, plaintiff could have only claimed 10% variation in the BOQ quantities, however for paint work, plaintiff raised bill to the variation of 119% which was not payable to the plaintiff and as such the defendant is entitled to claim the said amount. It was submitted that " the total amount for paint work as per the BOQ was Rs. 7,10,224/-, however, plaintiff raised bill of Rs. 22,62,185/- which is 119% variation from the BOQ, thus, the counter claimant shall be entitled to Rs. 15,51,961/-" .
101. Description of BOQ variance beyond 10% for paint job is CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 51/57 Mark C in the defendant's evidence. Clause 12 of the work order stipulates that :
" The Item in the BOQ given in Tender Documents shall hold variants for quantities up to +/- 10%. Further any tasks missed out of the BOQ of a minor nature in any item shall not be charged extra".
102. PW1 refuted the suggestion that 10% of variation limit applied to item wise BOQ as per Clause 12 of the Work Order, leading to violation of the said clause, due to variation to the extent of 119% by raising bill in sum of Rs. 22,62,185/- for paint work. PW1 stated that there was no problem at all nor communicated to him and only when he raised the claim, that this objection was put. According to PW1, had there been any genuine issue with the quantum, it should and would have been communicated prior to bill verification process. In response to the same line of questioning, PW2 stated that 10% variation clause in work order pertained to total project amount and not to the item wise work.
103. PW2 testified that the certified paint work was based on actual final measurements conducted in presence of AR of both the parties. PW2 was asked about the feasibility of certifying the number of paint coats after project conclusion. PW2 answered that while the exact number of coats cannot be formally certified, the general practice is to apply two or three coats of paint with final coat or touch ups provided upon client's satisfaction during the certification process. This witness denied that the scope of work was entirely pre-measured, emphasizing that by nature, retrofitting and renovation work, does not allow exact quantification of entire scope of work.
104. Plaintiff claimed that variation was not item wise, to CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 52/57 counter assertion of defendant for charging of variation at 119%. It is correct that work order permitted variation of 10% (+ -) as a whole. It is also correct that no objection was raised by defendant qua 119% increase/variation during the relevant period. While it is conceded that the work order permits variations of 10% (+ -) on the total contract value, this clause seems to be designed for aggregate deviations, not to permit a 119% increase on a specific, isolated item i.e. paint work. The plaintiff's interpretation ignores the principle that variations must be reasonable and within the original contemplation of the parties. The plaintiff solely relies on the blanket argument that "variation was permitted under the contract." However, in construction contracts, the contractor must demonstrate that the claimed variation was ordered or necessitated, and provide the justification e.g., site conditions, design change for a massive 119% increase, which the plaintiff has completely failed to do.
105. While BOQ was already finalized, therefore, 119% increase on a single item, amounts to creating a new contract item, not a "variation." Allowing such an increase without technical justification, constitutes unfair and unreasonable exploitation of the variation clause, moving beyond genuine unforeseen changes into the realm of excessive. The plaintiff argues that the defendant raised no immediate objection to the 119% increase. However, silent or routine receipt of work does not amount to a waiver of the right to contest unreasonable, exorbitant, or non-contractual variations upon final billing. Because the plaintiff failed to establish the quantum meruit or provide any rational basis for the 119% increase, therefore, for CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 53/57 the failure of the plaintiff to establish the foundational requirements for a valid variation at 119%, this court grants the variation at 10% i.e. Rs. 71022.40/- upon the stipulated amount of paint work at Rs. 710224/- instead of Rs. 15,51,961/-.
Bill Payment/Outstanding Payment:
106. Plaintiff has claimed amount of Rs. 86,11,428/- based upon the outstanding bills in sum of Rs. 69,48,823/- alongwith tax liability at 18% aggregating to sum of Rs. 81,99,611.14. Plaintiff has further claimed 4,11,817/-, leading to aggregate amount in sum of Rs. 86,11,428/-. Genuineness and correctness of the bills quoted in RA bills Ex. PW2/C has already been established during discussion upon issues no. 1 & 2. Total claimed amount by plaintiff is Rs. 2,39,23,002/- (inclusive of 18% GST amount) and also inclusive of 10% (+ -) variation upon the agreed amount of Rs. 1,90,00,000/- Plus 18% GST amount i.e. Rs. 2,24,20,000/-.
107. Outstanding amount as claimed by plaintiff is only against the bills as per table no. 2 reproduced during discussion on issue no. 1 & 2. As already discussed, the invoiced amount pertaining to bills dated 15.10.2019, 16.12.2019, 25.2.2020, 5.8.2020 was less than the approved and certified amount by the Architect . As per the measurement sheets/RA bills duly certified by Architect, the chargeable billed amount was more than the amount for which partial bills were raised, thereby, leaving the outstanding amount in sum of Rs. 81,99,611.4 (inclusive of 18% GST ).
108. Plaintiff has further claimed the pending billed amount as per books in sum of Rs. 4,11,817/-. Although ledger details based upon which the pending billing amount in sum of Rs. 4,11,817/- has been claimed by plaintiff have not been brought on record.
CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 54/57 Amount of Rs. 81,99,611.14 is also inclusive of the variation in sum of Rs. 15,51,961/-, whereas this court has taken note of the variation amount and has permitted variation at 10% amounting to Rs. 71022.40/-.
109. Defendant and plaintiff, nevertheless, are at consensus-ad- idem with regard to defendant having paid Rs. 1,53,46,524/-. Defendant/counter claimant has made claims against plaintiff which include :
(i)claim towards extra work/extra items in sum of Rs. 27,38,298/-,
(ii) claims towards excess amount in excess of 10% variation in violation of clause 12 in sum of Rs. 15,51,961/-,
(iii) claim towards water proofing and anti termite work in sum of Rs. 2,10,000/- ,
(iv) claim for penalty on account of delay in execution of the work in sum of Rs. 4,75,000/-,
(v) claim towards loss of business and reputation on account of enormous delay and sub standard execution of work in sum of Rs. 25,00,000/-.
110. All of these claims except claim no. (ii), did not find favour with this court in view of the discussion (supra). Defendant at the same time acknowledged outstanding liability in sum of Rs. 40,26,686/-.
In Union Of India vs Ibrahim Uddin & Anr , CIVIL APPEAL NO. 1374 of 2008, it was observed that "23. In view of the above, the law on the admissions can be summarised to the effect that admission made by a party though not conclusive, is a decisive factor in a case unless the other party successfully withdraws the same or proves it to be erroneous. Even if the admission is CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 55/57 not conclusive it may operate as an estoppel".
Defendant based upon its own acknowledgment was at least liable to pay the acknowledged amount of Rs. 40,26,686/- to plaintiff. While the defendant raised counter claim / set off for Rs. 74,75,259/-, which claims have been rejected except for claim no. (ii) permitted for sum of Rs. 14,80,938.6 for which defendant/counter claimant is entitled for set off. The Project amount was Rs. 1,90,00,000/- alongwith 18% GST as applicable and with the variation permitted for Rs. 71022.40/-, the entitlement of plaintiff works out to Rs. 2,24,91,022/- and after deducting the payment having been made in sum of Rs. 1,53,46,524/-, entitlement of plaintiff works out to Rs. 71,44,498.40/-. Plaintiff thereby is held entitled for the amount in sum of Rs. 71,44,498.40/-.
111. Plaintiff has charged and claimed 18% GST amount and plaintiff has been held entitled for the amount in sum of Rs. 71,44,498.40/- which is inclusive of 18% GST amount. Plaintiff has not filed any GST Certification on record pertaining to previous GST deposits. Ld. Counsel for plaintiff submitted that the amount received from defendant in sum of Rs. 1,53,46,524/- was inclusive of 18% GST amount and plaintiff has already deposited GST with the Government in sum of Rs. 27,62,374/-. PW1 also conceded that GST had not been paid on the last bill/balance bill. Liability of plaintiff, therefore, to deposit GST still stands.
112. Accordingly, it is directed that during execution proceedings, plaintiff shall file on record GST certification in sum of Rs. 27,62,374/- failing which this amount out of decreetal CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 56/57 amount shall be payable to GST department. Further, for the decreetal amount, 18% GST amount shall also be payable to department and the balance amount shall be released in favour of plaintiff. After payment of GST amount, balance decreetal amount shall be payable alongwith pendentilite and future interest @ 6% per annum (as claimed by plaintiff). Both these issues stand answered as above.
113. Relief : Instant suit is accordingly decreed with cost in favour of the plaintiff and against the defendant for an amount of Rs. 71,44,498.40/- (Rs. Seventy One Lacs Forty Four Thousand Four Hundred Ninety Eight and forty Paisa only), after set off in counter claim in sum of Rs. 14,80,938.6 . It is directed that during execution proceedings, plaintiff shall file on record GST certification in sum of Rs. 27,62,374/- failing which this amount out of decreetal amount shall be payable to GST department. Further, for the decreetal amount, 18% GST amount shall also be payable to department and the balance amount shall be released in favour of plaintiff. After payment of GST amount, balance decreetal amount shall be payable alongwith pendentilite and future interest @ 6% per annum (as claimed by plaintiff).
114. Decree sheet be prepared accordingly. After completion of formalities, file be consigned to record room.
savita Digitally signed
by savita rao
Date: 2026.04.30
rao 16:09:42 +0530
Announced in the open (SAVITA RAO)
court on 30.04.2026 DISTRICT JUDGE
(COMMERCIAL COURT)-01
SOUTH, SAKET COURTS, DELHI
CS (COMM) No. : 104/2023 & CS (COMM) No. : 302/2023 57/57