Delhi District Court
M/S Orion Construction Company Pvt. Ltd vs M/S National Buildings Construction on 16 September, 2014
IN THE COURT OF SH. RAMESH KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE-04, (CENTRAL)
DELHI
Date of institution : 01/12/2006
Judgment reserved on : 11.09.2014
Judgment delivered on : 16.09.2014
Suit No.164/12
M/s Orion Construction Company Pvt. Ltd.
No. 53, K.H. Road,
Bangalore-560027.
Through its Chairman cum
Managing Director. ... Plaintiff
Versus
1. M/s National Buildings Construction
Corporation Ltd.
NBCC Bhawan,
Lodhi Road,
New Delhi-110003.
2. The Director,
Indira Gandhi National Centre for Arts
No.109, 3 ADA Ranga Mandira,
J.C. Road,
Bangalore-560002. ... Defendants
JUDGMENT
1. Briefly stated the facts of the case are that the plaintiff filed a suit against the defendant for recovery of an amount of Rs.15,53,460/- (Rupees Fifteen Lakhs, Fifty Three Thousand, Four hundred sixty only), which is the principal amount due and payable to the plaintiff towards construction works carried out by the plaintiff as per contract between the parties along with pendentelite interest @ 18% per annum and costs.
2. It is claimed that the plaintiff is a private limited company, registered under the provisions of the Companies Act and is in the business of providing engineering and contracting services and also classified as an A-class contracting company by CPWD, Government of India. It is claimed that the defendant is a public limited company, which is in the construction business and it often sub-contracts construction works to the plaintiff company and it pertains to 3 such construction works contracted to the plaintiff company to execute at Bangalore, the particulars of the same are as under:-
A. It is claimed that the second defendant had entrusted to the first defendant the construction of the Southern Regional Centre of IGNCA and Phase-I work of dormitory, guest house, art gallery and museum block and all other related works (balance works). (hereinafter referred to as "first project") The first defendant has in turn sub contracted the work to the plaintiff: the said contract was valued at Rs.74,99,975/- and entrusted to the plaintiff company vide Letter of Indent dated 19.01.2004 and agreement dated 31.01.2004 was signed between the parties.
B. Northern and Southern Extension of wheel shop of wheel and Axle Plant (balance work) (Ref.WPA/2003/1058a) (hereinafter referred to as the "second project"). The said contract was valued at Rs.37,91,260.10/- and entrusted to the plaintiff company vide letter of Indent dated 26/28.3.2003 and agreement dated 31.1.2004 was signed between the parties.
C. Extension of wheel final processing shop of Wheel and Axle Plant (Ref.WPA/2003/1058) (herein after referred to as the "third project"):
The said contract was valued at Rs.30,02,629.61/- and entrusted to the plaintiff company vide Letter of Indent dated 26/28.3.2003 and agreement dated 10.04.2003 was signed between the parties.
3. It is claimed that the plaintiff commenced and culminated/terminated works in the aforesaid projects to the satisfaction of the first defendant and the first defendant had been making payments to the plaintiff against bills raised by it from to time, but it is claimed that the defendant has not made payments against certain invoices raised by the plaintiff against works done and also that he had not refunded the Earnest Money Deposit and Retention Money Deposit, due and payable to the plaintiff for completed works.
4. As far as the first IGNCA project is concerned, it is claimed that the construction in the same had been initially commenced by M/s Ambabhai K. Patel, but when the plaintiff was inducted into the project, no objection was taken from M/s Ambabhai K. Patel and hence the plaintiff commenced work in the said project. It is claimed that the project after being completed to a certain point to the full satisfaction of the defendant was on the express instructions of the defendant, initially slowed down and then stopped for the reasons that they apprehended that the defendant's client IGNCA was not a in a position to pay the bills promptly leading to blockage of funds and therefore, the plaintiff had been initially instructed to slow down the work and finally instructed to stop the work altogether but thereafter, after some lapse of time, started carrying out the work through another sub-contractor behind the back of the plaintiff. It is claimed that the plaintiff had submitted a bill dated 22.09.2004 for Rs. 11,55,197/- towards the works completed and further raised a bill dated 22.09.2004 of Rs.1,34,000/- towards expenses incurred by it in creating the necessary infrastructure for carrying out the project. Thereafter, plaintiff also caused a legal notice dated 17.1.2006 to be issued to the second defendant demanding the payment of the sum of Rs.12,89,197/-, as the plaintiff had a lien on the project.
5. As far as the second project i.e. Project REf.WPA/2003/1058A: is concerned, it it claimed that the entire work was completed to the satisfaction of the defendant on 15.09.2004, and had submitted a final bill dated 21.09.2004 for an amount of Rs.50,000/-, but no payments have been received against the said bill. It is claimed that the despite written and oral demands for the same, no EMD amount of Rs.50,000/- and RMD amount of Rs.59,651/- was paid by the defendant.
6. So far as the third project is concerned, it is claimed that the entire work was completed and on 15.09.2004, final bill was submitted, but the defendant, despite demands, had failed to pay the EMD amount of Rs.50,000/- and RMD amount of Rs. 54,612/-.
7. It is claimed that the principal amount due and payable by the defendant to the plaintiff are as under:
1. First project (IGNCA project) Against Bill dated 22.09.2004 Rs.11,55,197/-
Against bill dated 22.09.2004 Rs. 1,34,000/-
2. Second Project.
Against Bill dated 21.09.2004 Rs.50,000/-
EMD Rs.50,000/-
RMD Rs.59,651/-
3. Third Project
EMD Rs.50,000/-
RMD Rs.54,612/-
Total amount Rs.15,53,460/-
8. It is claimed that plaintiff issued a legal notice dated 20.03.2006, to the first defendant, A corrigendum dated 13.09.2006 was also issued as the work order number for one projects had been wrongly quoted, but defendant had failed to respond to the same or to make payments due. Thus, the suit of the plaintiff, praying a decree for Rs.
15,53,460/- along with pendentelite interest @18% along with costs of the suit.
9. In contra pleadings, in the from of written statement, the defendants No. 1 & 2 had taken a preliminary objection as to mis joinder of cause of action. It is claimed that the time was agreed to be the essence of the contract, however, the plaintiff failed to complete the work in the stipulated time and as such became liable to pay compensation towards the loss for delay. On merits, it is claimed that all the payment as due and legally payable under the contract were made and no amount was payable.
It is claimed that the time allowed for completing the above works in all respects was on or before 09.06.2004 inclusive of Monsoon period, but the plaintiff company, failed to achieve desirable progress of work even after a period of two months from the date of award of work. It is claimed that a letter, dated 23.3.2004, was also sent to the party indicating the slow progress of work. It is denied that the work was slowed down on the basis of the instructions given by NBCC, infact the plaintiff, could achieve only a value of Rs.4,99,508/- during the initial period of two months against the target of Rs. 25,00,000/-. Further, it is claimed that 1st RA Bill dated 31.3.2004 was raised for an amount of Rs.4,99,508 (gross) only, which clearly indicates that the party failed to achieve the required progress of work in all respects. It is also claimed that the plaintiff had requested for extension of time for a further period of four months, vide letter dated 17.05.2004, which was received in the office only on 05.07.2004. However, the 2nd RA Bill, dated 31.05.2004, for a value of Rs.4,87,426/- and 3rd RA Bill, dated 30.06.2004, for a value of Rs.55,823/-, were prepared, but the payment could not be released to the plaintiff because by that time they had already taken a stand to completely slow down the progress of work without any reason, thereby committing breach of the terms of the contract. It is claimed that these amounts were liable to be set off against the claim of the defendant No.1, for the loss suffered by the defendant No.1, due to the illegal rescission of the contract by the plaintiff. It is further claimed that the plaintiff had finally taken a unilateral decision to stop the work vide letter, dated 22.09.2004. It is claimed that the plaintiff raised frivolous demand for Rs.11,55,197/- immediately for the alleged works done and had also raised a claim for Rs.1,34,000/- towards extra expenses incurred by them such as Security charges, construction of office and storerooms and water and electrical connections and requested for payment of the same.
10. Further, it is also claimed that the EMD and RMD is liable to be forfeited for the failure to complete the work and rescission of the contract without any justifiable reason. Further, it is claimed that the defendant No.1 is entitled to Rs.7,49,997/- against southern Reginal Centre Contract, Rs.3,79,126/- against Northern and Southern Extension of wheel shop and Rs.3,00,262/- against the extension of wheel processing, being 10% of the value of each of the contracts. It is claimed that, there is no clause in the terms and conditions/agreement for foreclosure of the contract. It is further submitted that the final bill was processed as per the terms and conditions of the contract and the amount payable to the party works out to Rs.5,36,743/- (gross bill amount Rs.10,42,757, less recoveries as per terms and conditions Rs.1,75,832/-, less amount already released to the party Rs.3,82,320/-, balance payment payable to the party, Rs.4,84,605/- including Release of SD amount Rs.52,138/- totaling thereby Rs.5,36,743/-). But, it is claimed that the said payment were also liable to be adjusted against the losses suffered on account of slow progress of work and the illegal termination/recession of contract by the plaintiff. It is also claimed that the plaintiff vide their letter, dated 03.05.2005, informed that they were giving up their claim of Rs. 1,34,000/- made by them vide their letter dated 22.09.2004.
11. It is denied that the amount is payable in respect of 2nd and 3rd Project.
12. Hence, it is prayed that the suit of the plaintiff be dismissed with costs.
13. Thereafter, replication to the written statement was filed by the plaintiff, wherein the averments of the plaint have been reiterated and the averments of the written statement have been denied. In preliminary submissions, the plaintiff pleaded that the copy of agreement, dated 31.01.2004 was never given to the plaintiff and the defendant No.1 has obviously forged the figure, at page 25 clause 35.02 of the contract which stood at 10Lacs, into 15 lacs.
14. On the basis of the pleadings of the parties, the following issues were framed by the court, vide order dated 10.07.2007.
Issues
1. Whether clause 35.01 of p.25 of the contract in the defendant's document has been forged by the defendant to change the figure which stood at Rs.10 lacs to Rs.15lacs?
OPP.
2. Whether the suit is bad for misjoinder of causes of action as alleged? OPD.
3. Whether there was any delay in execution of any of the contracts on account of the plaintiff? OPD.
4. If yes, whether the defendants suffered any loss attributable to the plaintiff on account of delay?OPD.
5. Whether the plaintiff terminated the contract illegally? (OPD)
6. If yes, whether the defendant suffered any loss or damages on account of alleged illegal termination? OPD.
7. Relief.
15. Vide order dated 27.04.2010, the name of defendant No.2 was deleted from the array of parties.
16. The plaintiff adduced evidence in the form of the only witness namely Sh.P. Nagraj, Project Manager of the plaintiff, whose affidavit is Ex. PW-1/A as his examination-in-chief, who was also cross-examined at length by the defendant.
This witness exhibited the following documents:-
1. Ex.PW-1/1 is the power of attorney.
2. Ex.PW-1/2 is the power of attorney in favour of L.S.U.Nambiar.
3. Ex.PW-1/3 is the original letter of indent.
4. Ex.PW-1/4 is the Bill of quantities.
5. Ex.PW-1/5 is the copy of agreement dated 31.1.2004.
6. Ex.PW-1/6 is the true copy of letter dated 01.02.2005.
7. Ex.PW-1/7 is the original minutes of meeting held on 22.01.2004.
8. Ex.PW-1/8 is objection from previous contractor.
9. Ex.PW-1/9 & 10 are the letters dated 03.01.2004 & 05.01.2004.
10. Ex.PW-1/11 is the true copy of letter dated 17.05.2004.
11. Ex.PW-1/12 is the true copy of the bill in measurement book of defendant No.1.
12. Ex.PW-1/13 is the letter dated 10.08.2004.
13. Ex.PW-1/14 is the copy of minutes of meeting dated 19.08.2003.
14. Ex.PW-1/15 is the copy of letter dated 08.09.2005.
15. Ex.PW-1/16 is the letter of the plaintiff dated 31.05.2005.
16. Ex.PW-1/17 (colly) is the copy of letter dated 22.09.2004.
17. Ex.PW-1/18 is the true copy of bill of works.
18. Ex.PW-1/19 & 20 are the letters dated 06.12.2004 & 08.09.2005.
19. Ex.PW-1/21 & 22 are the letters dated 06.10.2004 & 05.11.2004.
20. Ex.PW-1/23 is the original letter of indent/work order No.PM/NBCC/WPA/2003/1058a and true copy of its agreement is Ex.PW-1/24.
21. Ex.PW-1/25 is the original letter of indent/work order No.PM/NBCC/WPA/2003/1058 and true copy of its agreement is Ex.PW-1/26.
22. Ex.PW-1/27 is the true copy of invoice for Rs.50,003/-.
23. Ex.PW-1/28 to 32 are the true copies of letters dated 12.10.2004, 05.11.2004, 08.09.2005, 08.09.2005 and 21.09.2005.
24. Ex.PW-1/33 (collectively) are the copy of legal notice, corrigendum dated 13.09.2006 and relevant original registered AD.
25. Ex.PW-1/35 is a legal notice dated 17.10.2006.
17. Thereafter, the defendant to discharge the burden of proof, produced only one witness, namely, Sh.M.N. Krishnamurthy, Dy. Project Manager, head office at NBCC Bhawan, Lodhi Road, New Delhi. The DW-1 has tendered his affidavit-in- evidence as Ex.DW-1/A as his examination-in-chief and has proved on record only one document i.e. letter dated 23.03.2004 as Ex.DW-1/6. This witness was also cross- examined at length by the plaintiff.
18. I have heard arguments on behalf of both the parties and have gone through the records carefully.
19. My issue wise findings are as below:
Issue No.1 Whether clause 35.01 of p.25 of the contract in the defendant's document has been forged by the defendant to change the figure which stood at Rs.10 lacs to Rs.15lacs? OPP.
20. The onus to prove this issue was on the plaintiff. Plaintiff in its replication as well as PW-1 in his affidavit of examination-in-chief has pleaded that the defendant No.1 had obviously forged the figure at page 25 clause 35.02 of the General Terms of Contract, which stood at 10 Lacs into 15 Lacs. This is because, the clause which ought to have said the amount of the bill should not be less than Rs.10 lacs which, after the manipulation by the defendant, reads as 15 Lacs. It is claimed that the defendant No.1 had not counter signed this change nor had the plaintiff.
21. This part of the testimony of PW-1 remained unchallenged and unrebutted. Even no suggestion to this effect was given to the PW-1 nor any evidence to the contrary was proved on record by the defendant.
22. It is well settled principle of Law that all the facts in the testimony of the witnesses that remain un-rebutted, can safely be treated as proved and established on record.
23. Thus, this issue is decided in favour of the plaintiff and aginst the defendant.
24. Issue No. 2
Whether the suit is bad for misjoinder of causes of action as alleged? OPD.
25. The onus to prove this issue was on the defendant. It is pleaded on behalf of the defendant that the plaintiff had filed the claim in respect of three contracts. It is pleaded that the facts in relation to the aid contracts are different and the claim and basis of claim of the plaintiff in respect of the said claims is also different. It is pleaded that, in case the plaintiff was aggrieved, he was required to file three different suits for the claims instead of joining three different cause of action, by filing one suit.
26. Order 2 Rule 3 of CPC provides that:
3. Joinder of causes of action.-(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action, against the same defendant, or the same defendants, jointly;
and the plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants, jointly, may unite such causes of action in the same suit.
(2)....
27. In the present case, the plaintiff has filed a suit for recovery against three contracts. Initially the suit was filed against the two defendants, but, thereafter, the defendant No.2 was deleted from the array of parties. After, deletion of defendant No. 2, only one defendant is left to be arrayed in the suit. Hence, it cannot be said that the suit is bad for mis-joinder of causes of action.
28. Thus, in view of the aforesaid law and facts on record, this issue is decided in favour of the plaintiff and against the defendant.
29. Issues No.3 & 4.
3. Whether there was any delay in execution of any of the contracts on account of the plaintiff? OPD.
&
4. If yes, whether the defendants suffered any loss attributable to the plaintiff on account of delay?OPD.
30. Onus to prove both these issues were on the defendant.
31. The defendant in order to prove these issues has examined DW-1, who deposed that the due to slow progress of work by M/S Ambabai K Patel, defendant No. 1 had withdrawn the work of Dormitory and Guest House, Art Gallery/Museum Block of Phase-I from the scope of M/s Ambhai K. Patel and awarded the same to the present plaintiff on 19.01.2004 and time was the essence of the contract and the plaintiff was required to complete the work by 09.06.2004. It is also deposed that the similar works were awarded to the plaintiff by defendant No.1 in respect of the Northern and Southern Extension of Wheel Shop of Wheel and Axle Plant and Extension of wheel final processing shop of Wheel and Axle Plant and the contract document including the special conditions of contracts and the general conditions of contract were provided to the plaintiff Company and it had been agreed between the plaintiff company and the defendant No.1 that the general conditions of contract and the special conditions of contract shall form part of the Letter of Award. It is submitted that the time allowed for completing the above works, in all respects, was on or before 09.06.2004 inclusive of monsoon period. It is deposed that in this connection, a letter, dated 23.03.2004, was also sent by the defendant No.1 to the plaintiff indicating the slow progress of work. It is also deposed that no instructions was given by NBCC that their clients i.e. IGNCA was not in a position to pay the bills. To prove its case, on behalf of defendant only a letter, dated 23.03.2004, was proved on record.
32. During cross-examination, DW-1 deposed that he has no personal knowledge about this case for the period prior to 22.09.2004 and was submitting the same only on the basis of records. No document, showing that the defendant had suffered any loss, on account of delay by the plaintiff has been proved. In letter dated 23.03.2004, Ex.DW-1/6, it has been mentioned that "It is more than a month and no arrangements are made for weigh batcher or measuring box for mixing of PCC & RCC. Several requests were made to your representatives which is taken very lightly by them". It is also mentioned at the end of the letter that "the above aspects may please be attended to at the earliest to avoid further complication".
33. On the other hand, to the contrary on behalf of plaintiff, PW-1 Sh.P. Nagraj, has proved on record copy of a letter dated 17th May, 2004, Ex.PW-1/11 for extension of time for the project, in which it has been mentioned that "the work was delayed due to water seepage from all side of the building and hard rock was found, it required blasting and labour contractor was not ready to work. We were forced to arrange different labour contractor due to this reason the work was delayed. So we kindly request you to extend the time by four months to complete the work". There is an endorsement on Ex.PW-1/11 that "Discussed with GM (NBCC) they have asked us to go slow, as the fund is yet to be released to them".
34. During the course cross-examination, DW-1 has deposed that the defendant has received the letter Ex.PW-1/11 and he further deposed that he was not sure whether the same has been replied.
35. PW-1 has also proved on record a letter, dated 10.08.2004, Ex.PW-1/13, in the last paragraph of which, it has been states as under:-
"As regards the revised schedule for completion, you will appreciate that we have stopped the work since our bills were pending. We, therefore, request you to settle our bills immediately so that we will submit our revised schedule for the completion of work."
36. PW-1 has also proved on record four other letters Ex.PW-1/19, 1/20, 1/21 and 1/22. In all these four letters the plaintiff also requested the defendant to settle the claim, but, admittedly, no reply was sent by the defendant to the plaintiff.
37. PW-1 has also proved on record a letter Ex.PW-1/15, for release of bank guarantee, in which it has been specifically mentioned that ".....the work has been stopped at your instance. We have been requesting you since then to return the original bank Guarantee........"
38. During the course of arguments, ld. Counsel for the defendant has vehemently argued that the time was the essence of the contract and there was a delay in completion of the contract. It is also argued that the defendant had suffered loss on account of delay. But no documentary evidence was proved on record. Defendant has failed to show, how it has suffered loss on account of delay. Even, no letter was written by the defendant to the plaintiff that there is a delay on its part. Even, the letters written by the plaintiff were never replied by the defendant.
39. Thus, in view of letters Ex.1/13 & 15, it cannot be said that there is a delay on the part of the plaintiff, when the plaintiff was regularly in touch with the defendant, and the defendant had never replied to the letters of the plaintiff.
40. Thus, it cannot be said that there was any delay in execution of first contract on account of plaintiff and that the defendant had suffered loss on account of the said delay.
41. As regards to the other two contracts, the plaintiff claims that, so far as the second contract is concerned, the defendant accepted the plaintiff's tender, dated 31.01.2003, and the total value for the construction was valued at Rs.37,91,260.10. For the work completed in this project a bill, dated 21.09.2004, for the pending amount of Rs.50,000/- had been sent to the defendant, but no payment had been made and in addition thereto Rs.50,000/- is due towards the EMD and Rs.59,561/- towards RMD. It is claimed that a total amount of Rs.1,59,561/- is due towards second contract.
42. As far as the third contract is concerned it is claimed that the entire project has been completed by the plaintiff on 15.09.2004. It is pleaded that though the defendant had paid the bill raised for the same, but the EMD of Rs.50,000/- and RMD Rs.54,612/- is due towards this contract.
43. On behalf of plaintiff, PW-1 has proved on record document Ex.PW-1/28, wherein it has been written that "As you are aware we have completed the above work in all respects as required by you. Accordingly, we are submitting our bill for the balance amount due to us. We request you to please settle the bill as well as the earlier dues immediately".
44. With regard to these two contracts, the defendant submitted that in both the contracts the work was not completed within time and in terms of Clause 72 of the General Conditions of Contract, the defendant is entitled to compensation being 10% of the value of the contract. It is pleaded that the defendant is entitled to compensation of Rs.3,79,126/- in respect of second contract and Rs.3,00,262/- in respect to third contract, thus, no amount is payable to the plaintiffs towards these contracts. The Clause 72 of the General Conditions of Contract provides that:-
"Compensation for Delay The time allowed for carrying out the work as entered in the tender shall be strictly observed by the contractor and shall be deemed to be of the essence of the contract on the part of the contractor and shall be reckoned from the tenth day after the date on which the letter of intent is issued to the contractor. The work shall throughout the stipulated period of the contract be proceeded with all due diligence and the contractor shall pay a compensation an amount equal to one percent or such smaller amount as the Engineer-in-Charge/Zonal Chief, NBCC Ltd., (whose decision in writing shall be final) may decide on the amount of the estimated cost of the whole work as shown in the tender, for every week that the work remains un-commenced or unfinished after the stipulated dates. Provided always that the total amount of compensation for delay to be paid under this condition shall not exceed 10% of the tendered value of work.
The amount of compensation may be adjusted or set-off against any sum payable to the contractor under this or any other contract with NBCC."
45. During the course of arguments, ld. Counsel for the defendant has, vehemently, argued that time was the essence of the contract in these two contracts also and, admittedly, there was a delay in completion of these two contracts. It is also argued that the defendant had suffered loss on account of delay. But no documentary evidence was proved on record. Defendant has failed to show, how he had suffered loss on account of delay.
46. In the letter Ex.PW-1/32, the plaintiff, itself, had admitted that "the work was entrusted to us vide your work Order No. PM/NBCC/WAP/2003/1058 dated 23.03.2013. The work was completed by us on 15.09.2004".
47. Thus, it is clear on record, that there is a delay in completion of other two contracts, but the defendant has failed to prove on record that is had suffered any loss due to the said delay.
48. Thus, issues No. 3 & 4 are decided partly in favour of the plaintiff and against the defendant.
49. Issues No.5 & 6
5. Whether the plaintiff terminated the contract illegally? (OPD) &
6. If yes, whether the defendant suffered any loss or damages on account of alleged illegal termination? OPD.
50. The onus to prove these issues was on the defendant. DW-1 has deposed that plaintiff failed to complete the work within the contract period due to reasons attributable to them and they had requested for extension of time for a further period of four months vide letter dated 17.05.2004, which was received in the office only on 05.07.2004. He further deposed that the payments could not be released to the plaintiff because by that time they had already taken a stand to completely slow down the progress of work without any reason, thereby committed breach of the terms of the contract. It is also claimed that, during the time when the work was being undertaken by the Plaintiff Company, the defendant No.1 Company, vide its letter, dated 2nd August, 2004, Ex.DW-1/P1, pointed out various defects in the work being under taken by the plaintiff company. It is claimed that the plaintiff company was asked to rectify the said defects but the said company had failed to do so. It has further been deposed that without the knowledge and consent of the defendant No.1, plaintiff unilaterally slowed down the progress of work for reasons not attributable to Defendant and, thereafter, plaintiff had finally taken a unilateral decision to stop the work vide letter dated 22.09.2004.
51. During cross-examination, this witness deposed that the letter Ex.DW-1/P1, had been responded by the plaintiff by its letter, dated 10.08.2004, which is Ex.DW-1/P2. In the last paragraph of Ex.PW-1/D2, it has been written that "As regards the revised schedule for completion, you will appreciate that we have stopped the work since our bills were pending. We therefore, request you to settle our bills immediately so that we will submit our revised schedule for the completion of work".
52. On behalf of plaintiff, it has been submitted that work was stopped due to non payment of bills. The plaintiff has further submitted that, on 22.09.2004, plaintiff had sent a letter to the defendant requesting the defendant to close the contract and settle the bill for an amount of Rs.11,55,197.00, immediately.
53. No reply to the aforesaid letters were given by the defendant to the plaintiff. Thus, it cannot be said that the termination of contract was illegal.
54. The plea has been taken on behalf of the defendant that it had suffered loss or damage on account of alleged illegal termination. However, nothing is placed, on record, through any documentary evidence in this regard. No letter in this regard, had been sent to the plaintiff. Defendant did not bother to reply the letters written by the plaintiff. Thus, it cannot be said that the defendant had suffered any loss or damage on account of termination of the contract.
55. Thus, in view of the aforesaid discussions, both these issues are decided in favour of the plaintiff and against the defendant.
Relief.
56. The plaintiff had prayed that a decree be passed in favour of the plaintiff for a sum of Rs.15,53,460/- along with pendente lite interest @ 18% p.a, along with costs of the suit.
57. With regard to the first contract, the plaintiff submitted a Bill of Rs. 11,55,197/- towards the work completed and further raised as bill for an amount of Rs. 1,34,000/-. The defendant in its written statement had pleaded that a sum of Rs. 5,34,743/- is due to the plaintiff. The defendant further pleaded that, since the plaintiff failed to complete the work within time, the plaintiff is not entitled for any amount, whatsoever.
58. While deciding issues No.3 to 6, it has been held that plaintiff is not liable for delay in completing the contract with regard to first contract.
59. The defendant has claimed that the plaintiff had given up the claim of Rs. 1,34,000/- as per letter, dated 3.05.2005. In replication to the written statement, the plaintiff had also mentioned that "it is true that the plaintiff company vide their letter, dated 03.05.2005, had agreed that they were willing to give up their claim for an amount of Rs.1,34,000/- payable towards security etc., provided that the defendant agrees to settle the bill for the completed work and to close the contract".
60. Thus, since, at one point of time, the plaintiff had give up the claim of Rs. 1,34,000/-, it is not appropriate, on the part of the plaintiff, that it will again claim the said amount.
61. Thus, the claim of the plaintiff for an amount of Rs.1,34,000/- is dismissed as had already been given up by the plaintiff.
62. The plaintiff had submitted its final bill for Rs.11,55,197/-. The defendant in its written statement pleaded that an amount of Rs.3,82,320/- was already released to the plaintiff and the plaintiff, in its replication, had itself submitted that the plaintiff's claim for the said amount is not subject to any deduction, whatsoever. No specific denial came from the mouth of the plaintiff. In the final bill Ex.PW-1/18, no payment already received was shown by the plaintiff under any head. Thus, it is proved on record that the plaintiff had already received an amount of Rs.3,82,320/-.
63. The defendant, in its written statement, had pleaded that an amount of Rs. 1,75,832/- is recoverable from the plaintiff, as per the terms and conditions. It has been already held, while deciding issues No.3 to 6, that the plaintiff was not liable for delay in execution of the first contract, thus, the defendant is not liable to deduct an amount of Rs.1,75,832/- as per the terms and conditions.
64. Thus, in view of the aforesaid discussion, the plaintiff is entitled to recover an amount of Rs.7,72,877/- [Rs.11,55,197 (total amount) - Rs.3,82,320 (amount already released)].
65. With regard to the second and third contract, it is held, while deciding issues No. 3 & 4, that both the contracts were not completed within time. Thus, as per clause 72 of the General Conditions of Contract, the defendant is entitled to compensation, being 10% of the value of the contract. Admittedly, no counter claim was filed on record by the defendant. The defendant has already withheld the EMD and RMD of the plaintiff against both these contracts and also an amount of Rs. 50,000/- against the bill, dated 21.09.2004.
66. Thus, in view of the aforesaid discussions, the plaintiff fails to establish its claim against the second and third contract. Thus, the suit of the plaintiff is dismissed against the claim of second and third contract.
67. The plaintiff has also prayed for interest @ 18% per annum.
68. SECTION 34 of CPC reads as under:-
Interest Where and in so far as a decree is for the payment of money, The Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, (with further interest at such rate not exceeding 6 % per annum, as the Court deems reasonable on such principal sum), from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.
Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed 6 % per annum, but, shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent/advanced by nationalised banks in relation to commercial transactions.
69. As per clause 52 of the General terms and conditions, it has been mentioned that "the contractor shall not be entitled to any interest with respect to the EMD, Security deposit, Retention money or any money which may be due to him from the Corporation for any delay on the part of the corporation to make any progress or other payments".
70. Thus, the plaintiff is not entitled for any interest till filing of the present suit, but plaintiff is entitled for interest @ 6% on the decreetal amount from the date of filing the suit, till its recovery.
71. In view of the aforesaid discussions, the suit of the plaintiff is partly decreed for an amount of Rs.7,72,877/- along with interest @6% per annum from the date of filing of the suit, till its realization.
Costs to the extent of Court fees is also awarded in favour of the plaintiff. Decree sheet be drawn accordingly.
File be consigned to R/Room.
Announced In the open Court (RAMESH KUMAR)
16.09.2014 Addl. District Judge-04
(Central) Tis Hazari Courts,
Delhi. 16.09.2014