Delhi District Court
K.R. Builders Private Limited vs Delhi Development Authority on 5 January, 2016
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT JUDGE
II (CENTRAL DISTRICT): TIS HAZARI COURTS: DELHI
CS No.384/2015
Unique Case ID No.: 02401C0289612011
K.R. Builders Private Limited
1430, 1st Floor, Sector16,
Faridabad121002
.......... Plaintiff
Versus
1. Delhi Development Authority
Through its Secretary
Vikas Sadan, INA,
New Delhi
2. Executive Engineer
Western Division No.12
Delhi Development Authority
Lakkar Mandi, Kirti Nagar,
New Delhi - 110050
......... Defendants
Date of Institution: 05.09.2001
Judgment Reserved on: 05.01.2016
Judgment Pronounced on: 05.01.2016
JUDGMENT (Oral):
(1) This suit for recovery of Rs.3,96,011.84p (Rupees Three Lacs Ninety Six Thousand, Eleven and Eighty Four Paise) has been filed by the plaintiff against the defendants.
K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 1 Plaintiff's Case:
(2) The case of the plaintiff is that it is a Private Limited Company, duly incorporated under the Companies Act, 1956 and Shri K.R. Gupta, Managing Director is duly authorised to file the present suit, engage advocates, sign pleadings and take all such steps for the proper conduct of the case. It is pleaded that the defendants have invited tenders for work of Construction of 2693/2714, EWS and 358/376 LIG, incremental houses in Bindapur PocketIII, Dwarka Project SH: Construction of 268 EWS, 36 LIG incremental houses BlockB, Pocket III at Bindapur, New Delhi pursuant to which the plaintiff also submitted its tender which was accepted and the defendants awarded the work of construction of 268 EWS, 36 LIG incremental house Block B Pocket - III at Bindapur, New Delhi to the plaintiff Company vide agreement No. 11/EE/WD12/DDA/A/9192.
According to the plaintiff, they mobilised all material and labour to complete the aforesaid work of construction within the stipulated period but there were usual delays on the part of the defendant and the work stood prolonged. It is pleaded that in view of the fact that the entire delay was on the part of the defendant, they also extended the time upto the date of completion i.e. 15.01.1994 without levy of any compensation and therefore, the work stood completed on 15th January, 1994 which completion was recorded by defendant clearly pointing out themselves that the work was completed on 15.01.1994 in all respects.
K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 2 (3) According to the plaintiff, the defendants were not able to allot flats and handover the possession to the allottees and therefore, the last part of finishing i.e. final coat of white wash, paint, fixing of fittings and glasses, paints etc. generally required to be done at the time of handing over of physical possession to respective allottees, was done at that time. It is pleaded that the plaintiff completed the entire work and also continued its watch and ward at the site and as & when flats were allotted, the plaintiff would in each flat carry out the aforesaid last finishing work so that possession can be handed over to the allottees. It is further pleaded that the defendant DDA recorded the same also in the completion certificate clearly stating that these finishing items were not got executed from the plaintiff at the time of recording of completion on 15.01.1994 since DDA Housing Authority was not releasing the allotment/ possession letter due to non availability of civic amenities like water and electricity in Bindapur area. It is also pleaded that despite the fact that the plaintiff had completed the entire work, they did not let the plaintiff remove its watch and ward at the site and for the said purpose also, entered into supplementary agreement dated 07.01.2000 in this regard which was valid for a period of one year to be extended further if required. It is also pleaded that for the purpose of the said supplementary agreement, the defendant also took two bank guarantees from the plaintiff for a total sum of Rs.1,50,000/ being bank guarantee no. 5/2000 and 7/2000 of Punjab and Sind Bank, Green Park Branch, New Delhi. It is further stated that though the period of K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 3 supplementary agreement expired on 06.01.2001 but defendant was not able to allot all the flats and only 100 flats had allotted and watch & ward of the plaintiff continued at the site and the supplementary agreement dated 07.01.2000 was also not further extended and had since expired. It is also pleaded that despite the said supplementary agreement having been executed, the defendants have not paid to plaintiff for watch and ward as per terms of the said supplementary agreement and still made the plaintiff Company to keep watch and ward.
(4) It is further pleaded that though the work was completed on 15.01.1994 in all respects except the one covered under the Supplementary Agreement which is the final coat of paint, whitewash etc. which defendants did not let plaintiff do till the flat was allotted and at the time of handing over of possession of the flat to the allottee, this final work of paint, whitewash, etc. was got done and huge amounts of plaintiff are outstanding towards work done, balance payment under clause 10CC amounts wrongfully and illegally withheld due to various reasons, payments towards watch & ward and return of the Bank Guarantee since the work is complete and the supplementary agreement had already lapsed and the maintenance period also lapsed on 15.07.1994. According to the plaintiff, the defendants refunded the security deposit of the plaintiff in December, 1999 and paid the provisional final bill on 31.03.1998 but still the final bill and the following amounts have not been paid by defendants to plaintiff Company:
K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 4
Sr. No. Heads Amount (Rs.)
A On account of balance amount due and 39,933
payable against the work executed at site
and not paid.
B On account of balance amount due and 10,594.78p
payable for escalation under Clause 10
CC of the agreement on the aforesaid
amount of Rs.39,933/.
C Amount withheld towards finalisation of 3,000.00
cost indices vide MB 1025 page 2
D Amount withheld unlawfully for the issue 22,500.00
of locks by department and locks have
been handed over to the defendants/affixed at the site.
E Amount still unlawfully withheld on 92,000 account of pending allotment of remaining Flats.
F Less payment under Clause 10CC as per 75,769.00 bills submitted by Plaintiff on 5th June, 2000 vide reference No. KBB/DP/DDA/992000/570.
G On account of payment towards watch & 17,600.00 ward of completed works for the period 26.9.97 to 26.11.97@ Rs. 8800/ per month H Towards watch & ward for the period 16th 12,200.00 March, 2000 upto date of filing of the suit @ Rs.6,600/ per month.
Total Rs.3,73,596.7p
K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 5
(5) According to the plaintiff they have sent various requests to the
defendants but to no effect and despite repeated reminders, the defendants have failed to pay the aforesaid amount to plaintiff Company and plaintiff Company's watch & ward continue at the site even on the date of filing of the suit. It is pleaded that since the defendants have failed to pay aforesaid amount to the plaintiff Company, they got served a notice under Section 53B of the Delhi Development Act upon defendants through its Advocate on 30th May, 2001 calling upon the defendants to pay the aforesaid amounts to the plaintiff Company but despite the receipt of the said notice, the defendants have failed to pay the aforesaid amount to the plaintiff Company.
(6) It is further pleaded that the defendants are liable to pay a total sum of Rs.3,73,596.78p to the plaintiff Company upto the date of filing of the suit and since the defendants have illegally and unlawfully withheld the aforesaid amount of the plaintiff Company and despite repeated reminders including legal notice dated 30th May, 2001 calling upon the defendants to pay the amount as well as interest thereupon, the defendants failed to pay the same, the defendants are liable to pay interest on the aforesaid amount @ 18% per annum which upto the date of the filing of the suit which comes to Rs.22,415.06p. According to the plaintiff, the defendant is liable to pay a total sum of Rs.3,96,011.84p to the plaintiff company due to which reason the plaintiff has approached this court.
K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 6 Defendant's Case:
(7) Pursuant to the filing of the suit summons were issued to the defendants who put in their appearance and filed their detail their written statement wherein the defendants have raised a preliminary objection that the suit is barred by limitation in view of the provisions of Section 53B of DD Act, 1957 and the facts have not been properly stated in the plaint. It is pleaded that all the payments which were due to the plaintiff, stood paid and no amount whatsoever is payable by the defendants to the plaintiff as alleged in the plaint. It is further pleaded that no cause of action whatsoever has arisen to the plaintiff for the filing of the present suit against the defendants and the suit is not maintainable for want of a legal, valid and proper notice under Section 53B of DD Act, 1957.
(8) On merits, the defendants have admitted that the tenders were invited and the plaintiff submitted the tender for the construction of 202 EWS and 24 LIG incremental houses, Pocket III at Bindapur. It is further admitted that the tenders submitted by the plaintiff for the construction of 268 EWS and 36 LIG incremental houses, PocketIII, BlockB at Binda Pur, Delhi was accepted and the work was awarded to the plaintiff.
However, the defendants have denied the various allegations made against them. It is denied that there were delays on the part of the defendants or that any usual delays take place in such matters or that the work was prolonged because of any delays on the part of the defendants. It is admitted that the work was completed by the plaintiff on 15.01.1994 and K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 7 completion certificate was also recorded in this respect/ subject to the items of final finishing to be provided at a later date. According to the defendants, the entire work as per the terms and condition of tender/ agreement was not completed by the plaintiff by 15.01.1994 as is apparent from the stipulations and contents of the Completion Certificate. It is pleaded that when the work was completed by 15.01.1994 by the plaintiffs, as alleged in the plaint, there was no reason for them to continue with the watch and ward of the houses and in case any final touches were required to be given at the time of the allotment/ handing over of the flats then the watch and ward till such time was not required from the plaintiff. It is also pleaded that the plaintiff and the Defendants had to act in accordance with the terms and condition of the NIT and the agreement executed between the parties and when the work stood completed as per the Agreement, the defendants could not authorize the plaintiffs to continue with the watch and ward. It is further pleaded that the work as per the plaintiff itself was completed on 15.01.1994 and Supplementary Agreement is stated to have been executed on 7.1.2000 i.e after the lapse of 6 years. It is also pleaded that the alleged Bank Guarantees did not create any additional liability on the defendants since the work, as per the original Agreement had to be completed by the plaintiffs on the rate as agreed upon. According to the defendants, the plaintiff cannot claim any additional amount other than those which were stipulated in the award of the work and in the Agreement originally executed for the tendered work and that the plaintiff cannot claim K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 8 any additional amount in case the flats are allotted and handed over to the allottees with some delay.
(9) It is further pleaded that all the payments which were due to the plaintiff have been made and no payment is due to the plaintiff on account of any extra items or on account of any deduction items paid less/ deducted excess. It is also pleaded that nothing is payable under clause 10(cc) nor any amount has been illegally withheld on account of locks. It is admitted that that Notice under Section 53B of the DD Act, 1957 was received but according to the defendants the same is not a proper, legal and valid notice in accordance with the provisions of law.
ISSUES FRAMED:
(10) The plaintiff has filed a replication to the Written Statement of the defendants wherein they have reaffirmed what has been earlier stated in the main plaint. Thereafter on the basis of the pleading of the parties, vide order dated 23.10.2003 the Ld. Predecessor of this court has framed the following issues:
1. Whether the suit is not maintainable for want of a valid and legal notice under Section 53B of DD Act? (OPD)
2. Whether the suit is barred by limitation? (OPD)
3. Whether the suit has not been filed by a duly authorized person? (OPD)
4. Whether the plaintiff is entitled to the amount claimed in para 10 of the plaint? (OPP) K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 9
5. Whether the plaintiff is entitled to the interest? If so, at what rate and for what period? (OPP)
6. Relief.
EVIDENCE:
(11) In order to prove its case the Managing Director of the plaintiff company namely Sh. K.R. Gupta has examined himself as his sole witness as PW1 whereas the defendants have examined their Executive Engineer Sh. K.G. Allahabadi as DW1.
(12) For the sake of convenience, the details of the witnesses examined by both the parties and their depositions are put in a tabulated form as under:
Sr. No. Name of witness Deposition Witness of the plaintiff: 1 K.R. Gupta (PW1) PW1 Sh. K.R. Gupta has in his examination in chief by
way of affidavit has corroborated what has been earlier stated in the main plaint. He has placed his reliance on the following documents:
1. Board Resolution dated 30.4.1999 which is Ex.PW1/1.
2. Memorandum & Article and Association and Incorporation Certificate which are Ex.PW1/2 & Ex.PW1/3.
3. Completion certificate issued by the defendant which is Ex.PW1/4.
4. Agreement dated 7.1.2000 which is Ex.PW1/5.
5. Copies of the bank guarantee which are Ex.PW1/6 & Ex.PW1/7.K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 10
6. Letter dated 20.4.2001 which is Ex.PW1/8.
7. Detailed calculation in respect of claim no. B which is Ex.PW1/9.
8. Letters dated 03.03.2000 which are Ex.PW1/10 & Ex.PW1/11.
9. Letter dated 5.6.2000 which is Ex.PW1/12.
10. Noting of the DDA dated 11.1.2000 which is Ex.PW1/13.
11. Legal notice dated 30.5.2001 which is Ex.PW1/14.
12. Office copy bearing the receipt of letter dated 2.7.1999 which is Ex.PW1/15.
13. Letters dated 5.6.2000 which are Ex.PW1/16 & Ex.PW1/17.
14. Letter dated 3.4.2000 which is Ex.PW1/18.
15. Letter dated 16.12.1996 which is Ex.PW1/19.
16. Letter for preparation of supplementary agreement which is Ex.PW1/20.
17. Letter dated 29.12.1999 which is Ex.PW1/21.
18. Letter dated 25.8.2000 which is Ex.PW1/22.
19. Circular dated 14.8.2002 which is Ex.PW1/23.
20. Letter dated 29.8.2002 which is Ex.PW1/24.
21. Extension of bank guarantee which are Ex.PW1/25 & Ex.PW1/26.
22. Circular dated 2.5.1997 which is Ex.PW1/27.
23. Circular no. 510 dated 2.5.1997 which is Ex.PW1/28.
24. Circular dated 30.3.1999 which is Ex.PW1/29.
In his crossexamination the witness has deposed on the following aspects:
➢ That he has not brought any documents to show that the labour and the material had been mobilized by the company within the stipulated period.
➢ That there was no mention in the agreement that certain works were to be completed only at the time of handing over the possession of the flats to K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 11 the allottees.
➢ That since the balance payment was not made by the DDA, hence they (plaintiffs) stopped watch and ward of the area in question.
➢ That in the original agreement there was no stipulation regarding watch and ward to be done by the plaintiff but a supplementary agreement relating to watch and ward was executed subsequently.
➢ That the internal noting of the DDA was given to him by a clerk of the DDA but he does not remember his name.
➢ That there is no correspondence from the defendant from the date of completion to the date of execution of the supplementary agreement asking the plaintiff to do the watch and ward of the flats.
➢ That it is a general practice of the DDA to do the watch and ward by the contractor till the possession are not given to the allottees, but he has not brought any document in this regard. ➢ That he did not file any complaint against the DDA regarding pressure to continue watch and ward after completion.
Witness of the Defendant:
2 K.G. Allahabadi DW1 K.G. Allahabadi has in his examination in chief by (DW1) way of affidavit Ex.DA has corroborated what has been earlier stated in the Written Statement.
In his crossexamination the witness has deposed on the following aspects:
➢ That the delay in completion of the work was condoned and they did not impose any penalty upon the plaintiff nor they have taken any action against the plaintiff in accordance with Clause 2 & 3 of the contract.
➢ That he cannot tell the date of handing over the possession of the flats to the allottees without consulting the possession register.K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 12
➢ That though the work was completed on 15.01.1994 subject to certain conditions which conditions have not been fulfilled.
➢ That some amount was withheld in respect of the work in question and the withheld payment was being released from time to time when the flats were being completed and its possession was being handed over to the defendant.
➢ That the plaintiff was not to leave the site till the possession of the flats was delivered to the DDA.
➢ That the defendant has deducted a sum of Rs.
600/ per flat towards fittings and fixtures and the payment @ Rs.600/ per flat had been released to the allottees of the flats, handed over to the allottees.
➢ That the defendant/ DDA had provided locks to the plaintiff for being put on the flat built by him and the DDA had charged a sum of Rs.22,500/ for providing the said locks.
➢ That it was not the term of the contract that the DDA will supply the locks to the contractors to be put on the flat and to deduct the money for providing the said locks.
➢ That he can neither admit or deny that the plaintiff was made payment @ Rs.8,800/ per month when the number of flats of which possession was not taken from the plaintiff was more than 250 and @ Rs.7,700/ where the numbers of flats were less than 250.
➢ That the possession of the flats which were less than 250 was not taken during the period from 26.09.1997 to 26.11.1997.
➢ That the watch and ward charges were paid by the defendant from 26.11.1997 to 15.3.2000 which payments were made in respect of the flats of which the construction was completed.
➢ That the Completion Certificate was issued in the year 1994 subject to providing fixtures and fittings and the final coat.
K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 13 ➢ That there is no provision in the contract under which the completion certificate may be issued without completion of the entire work.
OBSERVATIONS AND FINDINGS:
(13) I have heard the arguments advanced before me by the Ld. counsels for both the parties and considered the written memorandum of arguments filed by them. I have also gone through the testimonies of the witnesses examined by the parties and the material on record. My findings on the various issues are as under:
Issue no.1: Whether the suit is not maintainable for want of a valid and legal notice under Section 53B of DD Act?
(14) Onus of proving this issue was upon the defendant DDA. The case of the defendant is that no notice under Section 53B of the DD Act has been served upon the defendant no.2. According to the defendants.
though the copy of a notice sent to the Secretary of the defendants was sent to the defendant no.2, yet the same is not legally sustainable and hence the suit is liable to be dismissed. The case of the defendants is that the notice sent by the plaintiff under Section 53B of the DD Act was not in accordance with law since firstly it was not addressed to the defendant but to its secretary, secondly the notice did not contain any date of cause of action for filing the present suit, thirdly the notice did not provide any calculations for the alleged amount payable and lastly the notice was K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 14 deficient for the requisite details and for the legal requirement as required under Section 53B of DD Act. In support of its case the defendants have examined their Executive Engineer K.G. Allabadi as its sole witness as DW1.
(15) I have considered the submissions made before me. It is evident from the record that a notice under Section 53B of DD Act has been duly served upon the defendant. It is, however, argued that the notice so issued was in accordance with the requirement as provided under Section 53B of DD Act. I have perused the notice dated 30.5.2001 which is Ex.PW1/14 which has been duly exhibited by the plaintiff which has been addressed to the Secretary DDA copy of which has been sent to the Executive Engineer. Admittedly, Secretary is no authority under the Delhi Development Authority and the notice sent to the Secretary DDA is legally sustainable since the provisions of Section 53B does not provide the authority to whom the notice has to be sent and only states that it has to be left in the office or place of abode of, the person to be sued. Merely because it has been addressed to the Secretary DDA would make no difference once it has been delivered to the office of the authority receipt of which notice has not been denied by the defendant. (16) Further, I have also gone through the contents of the said notice which shows that the plaintiff has exhaustively given the cause of action and the nature of relief sought alongwith the exact amount of compensation claimed which in the present case is to the tune of Rs.3,73,596.78p. Even K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 15 in the crossexamination no suggestion has been given to K.R. Gupta (PW1) to the extent that no legal notice has been sent to the defendant, rather the suggestion is that the notice is not in accordance with the provisions of Section 53 of DD Act. I, therefore, find no merit in the arguments raised by the defendant that the notice given by the plaintiff is not in accordance with the provisions of Section 53B of DD Act. Issue is decided in favour of the plaintiff and against the defendant. Issue no.2: Whether the suit is barred by limitation? (17) Onus of proving this issue was upon the defendant. The case of the defendant is that the suit of the plaintiff is beyond the period of limitation. Ld. counsel for the defendant has vehemently argued that the present suit being related to contract comes within serial no. 18 under para 2 of the schedule attached to the Limitation Act and for the purpose of payments under this head, the cause of action for the purpose under the Limitation Act has to be taken as the date when the work was done and the limitation provided is three years from the said date. It is argued that in general law of Limitation, the suit is covered under the said provisions for the purpose for the start of limitation but in the present case the period of limitation has to be taken under Section 53 B(2) of the DD Act which provides a limitation period of 6 months from the date when the cause of action accrued whereas in the present case the cause of action would accrue to the plaintiff when the work was done and filed and therefore, the suit is K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 16 barred by limitation under Section 53 B(2) of the DD Act. It is also argued that the defendant no.1 DDA has been constituted under Section 3 of DD Act, 1957 and its objects are provided under Section 6 of the said Act and the works of Development, Engineering and Construction of houses are executed by the defendant acting under the provisions of DD Act, 1957. Ld. Counsel for the defendants had further argued that the execution of the present project was also a part of such work and the averments stated at serial no. A to G of para no. 10 of the plaint are clearly barred by time from the date from which the relevant works were executed since it has been specifically stated that the final bill was paid on 27.3.1998 and the present suit was filed in August 2001 and hence the claims are clearly barred by time from the date when the work was done and also from the date when the payment of the final bill was admittedly made. (18) On the other hand the case of the plaintiffs is that the suit is within the period of limitation since the legal notice was issued on 30.05.2001 and the suit was filed on 06.09.2001 which is within the period of limitation and even otherwise since the period for filing the civil suit for recovery is not six months but would be three years as per the Limitation Act and in this regard the Ld. Counsel for the plaintiff has placed his reliance on the cases of K.R. Builders Vs. DDA in RFA No. 348/2009 decided by Delhi High Court on 18.05.2011 and A.S. Sachdeva & Sons Vs. DDA reported in 164 (2009) DLT 162.
K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 17 (19) I have considered the submissions made before me, gone through the case law placed before me and also perused the documents placed on record. Admittedly the final bill had been prepared and paid to the plaintiff only in the year 2000 (i.e. 11.01.2000) and the suit was filed thereafter in the year 2001 i.e. within a period of two years. It is settled law that the limitation as prescribed under Section 53B of the DD Act is in respect of an act done or purported to have been done in pursuance to any Act or any rule or Regulation made thereunder. Since the defendant has failed to prove that the claims of the plaintiff are in respect of an act done or purported to have been done in pursuant to the Act, Rule or Regulation made there under, hence, resultantly the defendant DDA cannot restrict the period of limitation to six months under Section 53B (2) of the Limitation Act for the claim of the plaintiff and the ordinary law of limitation shall be application and the suit having been filed within the period of three years, I hold that the suit of the plaintiff is not barred by the limitation. (20) Issue is accordingly decided in favour of the plaintiff and against the defendants.
Issue No.3 Whether the suit has not been filed by a duly authorized person?
(21) Onus of proving this issue was upon the defendants. The case of the defendants is that the plaintiff has not proved any documents to the effect that Sh. K.R. Gupta was competent to file the suit and while K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 18 appearing Sh. K.R. Gupta (PW1) did not bring the Minute Book containing any resolution thereby authorizing him to file the suit and the affidavit. Ld. Counsel for the defendants has argued that Sh. K.R. Gupta (PW1) has not bring the original Incorporation Certificate which shows that no document has been proved on record to show that Sh. K.R. Gupta was competent to file or pursue the suit in the absence of relevant documents. (22) I have considered the submissions made before me and gone through the record. It is writ large that Sh. K.R. Gupta is the person with whom the agreement was executed and it is Sh. K.R. Gupta who had signed the Measurement Books from time to time. Now, the defendants cannot turn around to deny the relationship. They have not brought any material to show that Sh. K.R. Gupta is not the duly authorized person. I may observe that the present suit has been filed by the plaintiff K.R. Builders (P) Ltd. through its Managing Director K.R. Gupta who has been duly authorized to file the present suit vide Board Resolution which is Ex.PW1/1. The Memorandum and Article and Association and Incorporation Certificate have also been placed on record which are Ex.PW1/2 and Ex.PW1/3. Even in the crossexamination of Sh. K.R. Gupta (PW1) not even a single suggestion has been put to the witness of plaintiff. This being the background, I hereby hold that the present suit has been duly authorized to file the present suit.
(23) Issue is decided in favour of the plaintiff and against the defendants.
K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 19 Issue No.4: Whether the plaintiff is entitled to the amount claimed in para 10 of the plaint?
Issue No.5: Whether the plaintiff is entitled to the interest? If so, at what rate and for what period?
(24) Both the issues are clubbed together for the sake of convenience involving common discussion and being interlinked. Onus of proving both the issues was upon the plaintiff. As many as eight claims have been made by the plaintiff against the defendants under various heads which have been opposed by the defendants on various grounds including the claims being time barred. The case of the defendants is that the entire amount payable to the plaintiff has already been paid for which reason the plaintiff is not entitled to any such claim. The only evidence on record is the oral testimony of Sh. K.R. Gupta (PW1) the Managing Director of the plaintiff visavis the oral testimony of Sh. K.G. Allahabadi (DW1) the Executive Engineer of the DDA. I may observe that the Supplementary Agreement entered into between the parties and the interse communications between them has not been disputed. (25) The case of the plaintiff is that they had competed the work on 15.01.1994 and the delay was on the part of the defendant and hence the defendants have extended the time without levy of compensation. Ld. Counsel for the plaintiff has vehemently argued that the defendants were not able to allot the flats due to which reason the watch and ward was with K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 20 the plaintiff. It is submitted that the finishing and final coat of whitewash, paint, polish and fixing fixtures/ glasses were required to be done at the time of handing over the physical possession of the flats to the respective allottees and therefore despite having completed the work the plaintiff continued its watch and ward at the site. It is further argued that accordingly the plaintiff and the defendant entered into a supplementary agreement dated 11.01.2000 Ex.PW1/5 which was valid for a period of one year for which purpose the defendants have taken two bank guarantees from the plaintiff for a total sum of Rs.1,50,000/. Ld. Counsel for the plaintiff has argued that despite the supplementary agreement having been executed, the defendant had not paid the watch and ward to the plaintiff as per the terms of the supplementary agreement and plaintiff kept the watch and ward till the filing of the present suit. It is argued that the plaintiff made various requests to the defendant but the defendants failed to pay the aforesaid amount to the plaintiff company after which the plaintiff company served a notice under Section 53B of the DD Act. (26) On the other hand Ld. Counsel for the defendants has placed his reliance on the detail crossexamination of K.R. Gupta (PW1) as well as the testimony of Sh. K.G. Allahabadi (DW1). He has pointed out that Sh. K.R. Gupta (PW1) as admitted that there was no correspondence from the defendants from the date of completion till the date of execution of the supplementary agreement asking the plaintiff to do the watch and ward of the flats. It is argued that from the date on which the provisional K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 21 completion took place, the defendant did not ask the plaintiff to continue with the watch and ward work and hence he is not entitled for the same. It is further argued that there is no reason for the plaintiff to continue with the watch and ward when the same was not required under the original agreement and when the same was not asked for from him by the defendant. Ld. Counsel for the defendants has also argued that Sh. K.R. Gupta (PW1) has specifically stated that he did not file any complaint against the DDA regarding the pressure to continue watch and ward after completion. It is further submitted that the payment of the running bills as well as the final bills were received by the plaintiff without any protest and hence they are estopped from making the claims made in the suit. It is further argued that the affidavit filed by the plaintiff by way of evidence does not prove any evidence regarding the payments claimed by it in para
10. Ld. Counsel has pointed out that Sh. K. G. Allahabadi (DW1) has specifically denied that the locks provided by DDA to the plaintiff were returned to the defendants and that the plaintiff was entitled to any payments as claimed in para 10 of the plaint. Ld. Counsel has further pointed out that the witness of the defendant has specifically stated that the completion certificate was issued in the year 1994 which was subject to providing fixtures and fittings and the final coat and the supplementary agreement was entered with the plaintiff because he was blame worthy for not completing the fittings and fixtures. He has also pointed out that the witness DW1 has also specifically stated that the completion certificate was K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 22 issued only because the major work had been completed. Ld. Counsel has pointed out that DW1 has also stated in his crossexamination that he had written letters to the plaintiff to explain the position about the payments of watch and ward letters but the said letters have not been placed on record by the plaintiff. Ld. Counsel for the defendants has argued that the witness of the defendant i.e. Sh. K.G. Allahabadi (DW1) has supported the case of the defendants and no payment is liable to be made to the plaintiff. (27) I have heard the rival contentions. For the sake of convenience my observations and findings as regards the various claims raised by the plaintiff are now being put in a tabulated form as under:
Sr. Head Amount Observations and Findings:
No. A. On account of Rs.39,933/ Both the claim No. A and E are clubbed balance amount together being interlinked. It is an due and payable admitted case that the date of start of against the work work was 14.07.1991 and date of executed at site completion was 13.07.1992, whereas the and not paid. work was actually completed by the plaintiff on 15.01.1994. The Completion Certificate recorded by the Engineerin E. Amount still Rs.92,000/ Charge on 15.01.1994 which is unlawfully Ex.PW1/4 was subjected to withheld on rectification of defects and action still account of required to be taken by the agency on pending some items of work. All the work allotment of executed by the plaintiff was measured remaining flats and provisional final bill paid to him after acceptance in full and final by the K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 23 Sr. Head Amount Observations and Findings: No. plaintiff. The case of the defendants is that the work was actually completed on 15.01.1994 and the bill finalized on 23.07.1998 after four years and no claim of left out measurement made with in the span of 4 years till the time of finalization by contractor because there was not work left to be measured and paid. It is stated that the claim of the plaintiff is time barred under the Limitation Act since the claim of left out work of the main agreement cannot be entertained under the garb of supplementary agreement which only provides for watch and ward.
In so far as the plaintiff is concerned, he has failed to satisfy this Court as to why he kept quite even after the finalization of the bill on 23.07.1998 which is almost after four years of the completion of work on 15.01.1994. The amount due and payable against the work executed at site was in respect of the main agreement. The supplementary agreement of the year 2000 was only related to the limited issue of watch and ward. Hence, the present suit being filed only on 06.09.2001 which was three years, one month and twelve days after the finalization of bill and seven years, seven months and twenty days is clearly time barred. Assuming for a moment that the same is within the K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 24 Sr. Head Amount Observations and Findings:
No. period of limitation, the plaintiff has failed to place on record the evidence to show that after the completion certificate was issued, all the actions required to be taken by him on some of the item of work as pointed out by the EngineerinCharge while issuing the completion certificate on 15.01.1994, had been rectified.
Therefore, I hold that the plaintiff is not entitled to the recovery of these claims.
B. On account of Rs.10,594.78p The plaintiff is claiming this amount
balance amount towards escalation under clause 10 CC
due and payable of the agreement.
for escalation In this regard, I may observe that the
under Clause plaintiff has failed to place on record
10CC of the any evidence to show that quantum of
agreement on work which he was required to execute
the aforesaid in terms of the claim was actually
amount of Rs. executed by him. There is nothing on
39,933/ record to show that the work had been
so executed and completed and if so,
when and also the corresponding
escalation. The plaintiff cannot be
permitted to raise this vague and non
specific claim under the guise of
supplementary agreement.
Therefore, I hold that the plaintiff is not
entitled to the recovery of this claim.
C. Amount Rs.3,000/ The plaintiff is claiming Rs.3,000/
withheld from the defendants on account of
towards finalization of cost indices taken for
K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 25
Sr. Head Amount Observations and Findings:
No.
finalization of calculating the escalation in cost of
cost indices vide project. According to the defendants,
MB 1025 Page due payment has already been made to
No.2. the plaintiff against clause 10 CC of the agreement and as observed herein above the claim towards escalation under Clause 10 CC has been disallowed.
In this regard, I may observe that the plaintiff on his part has failed to place on record any evidence on record to prove that while finalization of bill on 23.07.1998 the cost indices were not taken into consideration. The claim, if any, could have been filed within three years of finalization of the bill. Though the suit which deals with consolidated claims is within time but this particular claim is barred by time and even on merits is unsustainable.
Therefore, I hold that the plaintiff is not entitled to the recovery of this claim.
D. Amount Rs.22,500/ Under this head the plaintiff is claiming withheld the payment which has been withheld unlawfully for by the defendants on account of cost of the issue of locks. It is an admitted case of the locks by plaintiff that the locks provided by the department and department on flats for effective watch locks have been and ward of the flats and there is handed over to nothing on record to show that the the defendants/ plaintiff did not return back the locks affixed at the after rectification of defects and site. allotment of flats. As per the evidence on record the plaintiff has accepted the K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 26 Sr. Head Amount Observations and Findings:
No. provisional final bill in which recovery of locks made in the year 1998. Further, the locks were never returned to the department by the plaintiff which compelled the department to recover it from final bill and the recovery of locks was duly acknowledged in the final bill. I, therefore, hold that the plaintiff is not entitled to the recovery of this claim.
F. Less payment Rs.75,769/ It is the case of the defendant that the
under Clause payment under clause 10 CC of the
10CC as per agreement have been made
bills submitted simultaneously and the payment has
by the plaintiff been made as per the procedure set forth
on 5.06.2000 in the payment. According to the
vide reference defendants, all the admissible payments
No. KBB/DP/ under clause 10 CC has already been
DDA/992000/ made. On his part the plaintiff has
570 failed to bring on record any evidence to
prove the said less payment as alleged
by him and except for his oral testimony
there is nothing on record to show that
the payments already made to him were
not in terms of the existing rules.
I, therefore, hold that the plaintiff is not entitled to the recovery of this claim.
G. On account of Rs.17,600/ Both the Claims G and H are clubbed
payment together being interconnected. It is the
towards watch & case of the defendant that the plaintiff
ward of has been duly compensated for the
completed labour which he had deployed for watch
works for the & ward of the flats under
K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 27
Sr. Head Amount Observations and Findings:
No.
period 26.09.97 supplementary agreement and the
to 26.11.97 @ plaintiff did not engage the labour for
Rs.8,800/ per the period 26.09.97 to 25.11.97 and
month. during this period DDA itself engaged
the guards.
H. Towards watch The case of the defendant is that no
Rs.1,12,200/
and wards for labour was deployed by the plaintiff for
the period watch and wards after the period which
16.3.2000 upto was accounted for payment in second
the date of filing running bill. All the payment for watch
of the suit @ Rs. & ward labour has already been made in
6,600/ per second running bill.
month.
I may observe that on his part the
plaintiff has failed to bring on record
any evidence to show that he had
employed additional labours for the
purposes of watch and wards nor has he
placed on record any document in
support of labour deployed for watch &
ward after 14.03.2000 as per the
supplementary agreement was ever
submitted to the defendants. Rather on
the contrary, the second running
account bill paid to the plaintiff for
watch & ward payment confirms that
during this period it was the defendant
DDA who had provided private security
guards. He has not placed on record
any document/ receipt to prove the
payments made by him to the security
guards towards watch and wards. The
plaintiff has miserably failed to bring on
record any evidence to prove his
K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 28
Sr. Head Amount Observations and Findings:
No.
entitlement to the claim raised by him.
Therefore, I hold that the plaintiff is not
entitled to the recovery of this claim.
(28) This being the background, I hereby hold that the plaintiff is
not entitled to the recovery of amount claimed in para 10 of the plaint. Issue is accordingly decided in favour of the defendants and against the plaintiff.
Relief:
(29) In view of my above discussion and findings on the various issues, I hereby hold that the plaintiff is not entitled to the recovery of amount from the defendants.
FINAL CONCLUSIONS:
(30) In view of my above discussion and findings on the various issues, I hereby hold that the plaintiff is not entitled to the recovery of amount from the defendants.
(31) Suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
(32) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 05.01.2016 ADJII(CENTRAL)/ DELHI K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 29 K.R. Builders Vs. DDA CS No. 384/2015 05.01.2016 Present: Sh. R.K. Singh Advocate for the plaintiff.
Sh. K.D. Sharma Advocate for the defendants.
Heard oral arguments. Be listed for orders at 4:00 PM.
(Dr. Kamini Lau) ADJII(Central)/ 05.01.2016 4:00 PM Present: Sh. R.K. Singh Advocate for the plaintiff.
Sh. K.D. Sharma Advocate for the defendants.
Vide my separate detail order dictated and announced in the open court, but not yet typed, the suit of the plaintiff is Dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(Dr. Kamini Lau) ADJII(Central)/ 05.01.2016 K.R. Builders Vs. DDA, CS No. 384/2015 Page No. 30