Delhi District Court
M/S S.K.B.Builders India Limited vs Indianoil Corporartion Limited on 2 August, 2025
1
IN THE COURT OF SH. BHUPESH KUMAR: DISTRICT JUDGE
(COMMERCIAL COURTS)-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
CS DJ No. 359/2019
M/s SKB Civil Tech Projects Limited
Regd Office at Unit No 627 & 628,
DLF Prime Tower, Plot No 79-80,
Okhla Industrial Area, Phase 1,
New Delhi 110020.
(Through its Director Shikha Mittal)
........... Plaintiff
VERSUS
Indian Oil Corporation Limited,
Refinery Division;
SCOPE Complex, Core 2, the 4th floor,
7-Institutional Area, Lodhi Road,
New Delhi-110003.
............ Defendant
Date of Institution : 26.04.2019
Date of Arguments : 11.07.2025
Date of Judgment : 02.08.2025
JUDGMENT
1. The present suit has been filed by plaintiff M/s SKB Civil Tech Projects Limited seeking recovery of sum of Rs. 1,33,90,815/-alongwith pendente lite and future interest against defendant M/s Indian Oil Corporation Limited (IOCL).
2. The brief facts of the matter as emerged from the plaint are that plaintiff is a Private Limited Company engaged in business of execution of engineering works. The defendant Indian Oil Corporation Ltd. is a public Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 Bhupesh Date:
kumar Kumar
2025.08.02
16:53:01
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 +0530 2 sector undertaking, engaged in refining and marketing the petroleum and petroleum products. It has been further submitted that in pursuant to public tender defendant awarded a work order no. PJ/CC/FCCU/2012-13/25 of 2012-13 for "civil, structural, buildings, road and allied works for FCCU and PRU revamp project at IOCL, Mathura Refinery and LPG bottling plant Mathura pursuant to a public tender no. TPKTI/785/T/FCCU-MR/021" to plaintiff.
It has been further stated that fax of acceptance was issued by defendant on 23.11.2012 which was followed by detailed letter of acceptance (DLOA) dated 12.12.2012. It has been further submitted that defendant appointed M/s Technip KT India Limited (TPKTI) as Project Manager as its representative to oversee the execution of works on behalf of defendant. It has been further submitted that project manager was focal contact person for plaintiff on site deliberations, discussion and other allied activities and overall administration of the contract. It has been further submitted that work was awarded to plaintiff on 23.11.2012 and its scheduled completion period was 8 months i.e. 22.07.2013, however, the work was completed on 15.01.2015. It has been further submitted that work could not be completed on time due to the reason attributable to defendant, for which defendant has granted seven provisional extension of time for completion of work during pendency/execution of work which were processed by defendant from time to time between 20.09.2013 to 29.08.2014. It has been further submitted that work was completed on 15.01.2015 and completion certificate was also issued by defendant in the month of April, 2015. It has been further submitted that soon after the completion of work vide letter dated 07.04.2015 plaintiff requested for extension of time of contract upto 15.01.2015. It has been further submitted that when defendant did not respond to the said letter again Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 kumarBhupeshDate:
Kumar 2025.08.02 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:53:08 +0530 3 on 06.04.2016, plaintiff sent e-mail to defendant for extension of time. In this respect, TPKTI informed the plaintiff that they have forwarded their recommendation for extension of time to defendant. It has been further submitted that even thereafter the plaintiff through email 16.04.2016 and 27.04.2016 requested the defendant for its decision for extension of period and for payment of final bill, but no response was received from defendant. It has been further submitted that on 30.04.2016 final bill was paid by defendant after deduction of 10% of value of contract. But the said deduction has been done by defendant without any notice/communication to the plaintiff.
It has been further submitted that one of the essential of work order was the signing of contract. In this respect it has been stated that fax of acceptance was issued to plaintiff on 23.11.2012 and detailed letter of acceptance was issued on 12.12..2012. But defendant executed and entered the contract in SAP on 07.01.2013. The execution and entry of contract in SAP was essential for submission of mobilization advance and receiving of same by the plaintiff, submission of bill for mobilization advance could be taken up. It has been further submitted that despite submission of Bank Guarantee by plaintiff on 24.12.2012, the mobilization payment was received on 10.01.2013. Therefore at threshold delay of 45 days occurred due to act of defendant.
It has been further submitted that during kickoff meeting on 04.12.2012, plaintiff requested defendant for issue of DLOA and Form V for apply for labour license, but DLOA was issued on 12.12.2012 and Form V on 22.12.2012 and accordingly plaintiff obtained license on 07.01.2013. On this aspect it has been stated that in the absence of labor license, the plaintiff was Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 kumarBhupeshDate:
Kumar 2025.08.02 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:53:15 +0530 4 not able to mobilize manpower at site and this delay can also be attributed to defendant.
It has been further submitted that plaintiff applied for gate pass on 28.12.2012 to Mathura Administration and police, which took a long time for C&A verification and ultimately the gate passes were issued on 05.02.2013 and delay of 29 days caused in this process.
It has been further submitted that defendant was bound to provide clear and free work fronts, land and space for execution of work by plaintiff. The layout drawing showing the location of PMCC building was issued to plaintiff on 04.12.2012 during kickoff meeting and subsequently the area was visited to start the job. It has been further submitted that during joint visit with TPKT/IOCL on 07.12.2012 it was observed that area was covered with M.S.Pipes and fittings in huge quantity. The said material was required to be shifted, but it was not in scope of work of plaintiff, but considering the urgency the plaintiff shifted the material which took around 12 days and completed layout on 19.12.2012 and offered for checking. On this account, the delay of 12 days was caused.
It has been further submitted that on 24.12.2013 the defendant asked plaintiff to shift the entire building by 3.00 meters towards north side to avoid foundation of building from falling in Ecological Park. The plaintiff was instructed to excavate test pits to identify routs for underground cables and the layout was finalized on 30.12.2012 which also caused delay.
It has been further submitted that plaintiff immediately deputed manpower and material and started with excavation activity but on 07.01.2013 a completely different location was identified by defendant for construction and new location was finalized on 27.01.2013 and final Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 Bhupesh kumar Kumar Date:
2025.08.02 16:53:21 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 +0530 5 orientation of building was given on 22.03.2013, after which the plaintiff could start concreting, as such delay of 108 days was caused.
It has been further submitted that there was delay in furnishing drawings like flooring details, architectural and cable trench drawings were issued issued on 12.07.2013, which has also caused delay in execution of work. It has been further submitted that plaintiff received the foundation details for pressurization room on 09.12.2013 and balance brick work in the same room was held up due to equipment erection by other agency. The clearance of brick wall was given vide Technip's email dated 01.02.2014 whereas the painting shade for external and internal walls was finalized by defendant on 28.02.2014.
It has been further submitted that in the month of April, 2014, the plaintiff was instructed to execute gypsum false ceiling job, beyond the scope of work, but still the plaintiff completed job and handed over the entire building on 25.06.2014.
It has been further submitted that one of the scope of work order was cable trench from PMCC building to Mounded Bullet for which initial drawing was issued on 06.04.2013 and subsequent revisions on 16.05.2013 and 01.07.2013, and the area was handed over in the month of September, 2013 and that too only 55 meters, out of total 300 meters.
It has been further submitted that construction of AHU room was not within the scope of work of plaintiff but the drawing was given to plaintiff on 13.06.2013 and only 40% front was available and the rest of area was covered with material. It has been further submitted that revised drawings were issued on 22.08.2013 and area was cleared by defendant by 23.08.2013.
Since AHU Room was located in existing building, the approach was confined one, hence, execution of dismantling and demolishing work of Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 Bhupesh Kumar kumar Date:
2025.08.02 16:53:27 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 +0530 6 RCC, PCC and brickwork was time consuming and costly. The plaintiff casted the slab on 23.10.2013 and completed internal work on 23.11.2013. The front for waterproofing on terrace was cleared on 07.06.2014.
It has been further submitted that construction of blast wall alongwith cable trench drawing was issued on 04.12.2012 and the site was handed over on 25.04.2013 and after handing over the site, the permit was not issued by defendant till 15.05.2013 because excess excavated earth and debris were not removed by other agency and thereafter the plaintiff was instructed to excavate the area upto subsoil water level to decide the depth and width of blast wall. On 06.06.2013, the size of raft was finalized by TPITI/ defendant. The plaintiff then completed the RCC works upto first lift of blast wall and cable trench upto ground floor and handed over the same to other agency for cable lying by 04.08.2013. It has been further submitted that since cable work was being executed by other agency, the plaintiff could not do staging, hence, job was delayed. On 25.10.2013, the plaintiff was instructed to place precast covers and start staging work to complete balance lifts of the wall, but later on 09.11.2013 the plaintiff was instructed to extend the blast wall by another 15 meters, beyond the initial scope work of plaintiff, hence, again the plaintiff had to mobilize labor for RCC dismantling, excavation and shuttering material.
It has been further submitted that extension of wall was delayed because 04 numbers earth pits were falling in the raft portion which had to be shifted by another agency. The shifting was done till 15.12.2013 and plaintiff completed the job on 10.01.2014.
It has been further submitted that for fire water and raw water pump house, the plan section and architectural drawings were issued on 25.01.2013 and thereafter plaintiff submitted shop drawing for approval on 15.02.2013, Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 kumar Bhupesh Date:Kumar District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 2025.08.02 16:53:33 +0530 7 which was approved on 10.03.2013. The material was delivered at site on 15.04.2013. It has been further submitted that front for roof sheeting work in fire water and pump house was released by defendant on 04.05.2013 and for side cladding on 31.08.2013. The job for pump house was completed on 20.09.2013.
It has been further submitted that work order item HPC Shed, architectural and plan drawings were issued on 15.02.2013 and plaintiff submitted shop drawings through its vendor on 18.02.2013 for approval. The shop drawings were returned with comment on 21.02.2013 showing extra work like fixing of bird mesh, S-type louvers and gutter. The plaintiff submitted the revised drawings on 25.02.2013 alongwith rate analysis of extra item. The entire material for roof and side cladding work was delivered on 15.04.2013 at site. Later on 03.09.2013, Technip informed the plaintiff to replace the S-type with vertical cladding sheets for which the plaintiff has submitted revised drawing on 28.09.2013 for approval and also letter mentioning the non-availability of front for roof or side clad sheeting, and the same was confirmed by Civil Status report and MOM dated 24.06.2013, 08.07.2013, 08.08.2013 and 29.08.2013. After the front was cleared in the month of July, 2014, the job was completed by September, 2014, which has been delayed due to various constraints like shortage of space for erection of scaffolding, erection of equipment, testing etc. It has been further submitted that space frame structure work was competed by plaintiff and major erection job was done by 30.10.2013, but erection work could not be completed because the plaintiff was not allowed welding. The plaintiff had requested verbally and through letters regarding permit to carryout welding job, but same was denied because loading/unloading work of LPG. Digitally signed by Bhupesh Bhupesh kumar Date:
CS DJ 359/2019 Bhupesh
kumar Kumar
2025.08.02
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:53:40 +0530 8 Further, due to bad weather condition i.e. due to heavy fog in the month of December, 2013 and January, 2014 it became very difficult to carry out welding work at height.
It has been further submitted that for new inspection bridge item of work order, the initial drawing was issued on 28.03.2013 and revised drawing on 15.04.2013 showing local of inspection bridge between two security kiosk buildings. The plaintiff submitted detailed drawing on 01.05.2013 and brought the material in the month of June, 2013. It has been further submitted that on during joint visit on 13.02.2014, the location was finalized and it was decided that Technip will issue revised civil drawings showing combined foundations for inspection bridge, MS gate and barriers etc. and the plaintiff received drawing on 01.03.2014. After which the plaintiff started layout job and ordered material. It has been further submitted that plaintiff requested several times through letters dated 30.03.2014, 15.04.2014 and 20.05.2014 seeking permission to dismantle the boundary wall for construction of foundations for which plaintiff got permission only on 25.05.2014.
It has been further submitted that work of S.O.R. was related to inside works of operational LPG Plant, but due to constraints like restricted working hours, confined space due to running of loading trucks and issue of height permit, it was difficult for plaintiff to complete the job on time.
It has been further submitted that for the item T.T. Parking area at MBP, as per initial drawing and site visit on 04.12.2012, defendant advised to start the grading work (i.e. leveling of area) for rough size of 350x80 meters. The plaintiff completed grading job by 17.12.2012, but as coordinates were not finalized till 08.01.2013 plaintiff could not start survey work. On 12.01.2013, defendant issued advance drawing showing coordinates for parking area enabling the plaintiff to start survey work and plaintiff submitted Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 kumarBhupesh Kumar Date:
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 2025.08.02 16:53:47 +0530 9 detailed layout drawing on 19.01.2013. It has been further submitted that vide letter dated 03.01.2013 the plaintiff requested for transportation of surplus earth from inside refinery which was granted on 29.01.2013 and plaintiff immediately started with backfilling from 01.02.2013. It has been further submitted that on 07.03.2013, an advanced revision 04 drawing was issued by defendant, but job was stopped by defendant from 09.03.2014 to 20.04.2013. On 11.04.2013 final layout for TT parking area and construction of boundary wall was issued and thus the plaintiff redo the layout and previously executed works. Then the plaintiff resumed backfilling from defendant's borrow area and excavation of boundary wall activities from 20.04.2013. The plaintiff applied for mandatory permission with mining and local authorities to excavate the earth from fields which took two months, and plaintiff got permission from 05.03.2013 to 30.04.2013. It has been further submitted that plaintiff had to re-apply and got the second permission on 19.05.2013 just before the monsoon period. The plaintiff started to supply the earth for filling, but due to monsoon the job came to standstill. After resuming the job from 01.07.2013, the plaintiff completed the backfilling & leveling course for an area of roughly 300 x 60 meters by 30.08.2013 and rest of the area of 50 x 60 meter was under hold by defendant for decision as mentioned in MOM dated 08.07.2013 and was cleared on 09.09.2013.
Simultaneously, the plaintiff started laying of GSB and WBM work which was completed by 20.04.2014. Activities like supply and laying the GSB and WBM to the tune of 4500 cubic meter and 5700 cubic meter in 7 layers was time consuming job.
It has been further submitted that after completion of WBM work and having various meeting with defendant, the permission to do the RCC pavement was given in the month of August, 2014. It has been further Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 kumar Bhupesh Date:
Kumar 2025.08.02 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:53:54 +0530 10 submitted that in the end of October, 2014 around 60 x 10 meter was released connecting the old and new T.T. parking area after lowering of fire water and demolishing of boundary wall by other agency. It has been further submitted that during execution of work, new fronts and extra jobs were added at regular intervals, such as (i) drawings for Septic and soak pit tanks to be constructed near crew room building (ii) RCC road between control room building and filling station on 13/02/14 (iii) Dismantling of boundary wall in east and south side of filling station upto 1.20 mtrs height on 13/02/14 (iv) Hume pipe to be laid as road crossing at Gate No. 03 on 13/02/14. (v) Provision of drain along with boundary wall (inner side) of filling station on 13/02/14.(vi) new excavation fronts were released for laying of cables by other agency. The same was time consuming as plaintiff had to excavate manually and irregularity of issuance of work permit. (vii) Front for false ceiling and false flooring works in two room near water block area was given on 14.04.2014 but due to electrical works the balance front was released in the month of May 2014.
It has been further submitted that some hindrances were unavoidable due to which additional work had to be carried out even after completion of original scope of work such as permission for dismantling the brick wall between the existing and new extension in control room building was to be given on 25/01/14 but since the electrical and instrumentation jobs like fixing of electrical panels, installation of lighting fixtures, etc. were pending, the front for false flooring and false ceiling works was held up as mentioned in plaintiff's letter dated 15.02.14 & 10.05.14. Plaintiff got the permission to execute the same on 14.05.2014.
It has been further submitted that due to construction joint between old and new building, defendant instructed to carry out the waterproofing works Digitally signed by Bhupesh Bhupesh kumar Date: CS DJ 359/2019 Bhupesh 2025.08.02 kumar Kumar 16:54:00 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 +0530 11 on entire roof slab on 28.06.2014 which was time consuming. It has been further submitted that WBM works near New Propylene Area was held up due to pendency of cabling works by other agency. The pavement work near new weigh bridge was pending because several earth pits had to be relocated which were connected with existing weigh bridge, by other agency.
The approval of shade for painting (interior and exterior) for buildings on 18/02/14. It has been further submitted that permission for groove cutting was not given.
It has been further submitted that during execution of work quantities for major items like disposal of excavated earth, excavation, backfilling etc. had exceeded the SOR quantities, resulting in withholding of payments from plaintiff's RA bills i.e. from RA 4th measurement period 16.06.2013 to 01.08.2013. It has been further submitted that plaintiff had raised this issue with defendant and the plaintiff was instructed not to execute the works pertaining to above items until the quantity deviation is processed and plaintiff had to demobilize labour. The plaintiff submitted excess/saving statement on 02.08.2013 for approval and after sending various letters and meetings M/s Technip submitted the deviation statement on 26.10.2013. The deviation approved on 15.03.2014 but the effect of withheld payment in such huge amount was very drastic, resulting in delay in procurement of raw material cement, TMT, stone aggregate etc. and subsequently mobilizing the manpower again. Again during the process of 13th RA bill quantities of many items were restricted to SOR/Revised quantities and huge amount was withheld.
It has been further submitted that plaintiff being issued new drawings /revisions, more time was required and the job for part-A was completed on 15.01.2015, job for part-B was completed on 25.08.2014 and job for Part-C Digitally signed by Bhupesh CS DJ 359/2019 Bhupesh Bhupeshkumar Kumar kumar District Judge(Commercial)-05, Saket Courts, Date:
South East/02.08.2025 2025.08.02 16:54:06 +0530 12 was completed on 25.06.2014. It has been further submitted that delay of 542 days was wholly and absolutely on account of reasons attributable to defendant, hence, defendant was neither authorized nor justified in deducting a sum of Rs.1,25,77,815/- as penalty from plaintiff.
It has been further submitted that due to prolong execution of contract due to act of defendant, the plaintiff was forced to keep the plants equipment and manpower in full deployment and incurred the additional expenses such as rental and maintenance of equipments like JCB, tractors, wages to staff etc. upto Rs.1500/- per day for 542 days amounting to Rs.8,13,000/-, which the plaintiff is entitled to receive from defendant. Inter alia, on the basis of these submissions prayer has been made to decree the suit in favor of plaintiff and against defendant.
3. The defendant has contested the suit by filing written statement, wherein, preliminary objections have been taken to the effect that suit is bad as the plaintiff has not exhausted the mandatory remedy of pre-insititution mediation, hence, the suit is not maintainable.
It has been further submitted that suit is not maintainable as the plaintiff has already received the entire amount without any protest. It has been further submitted that plaintiff was asked to submit shortfall amount towards the price reduction of Rs.21,71,510/- which was paid by plaintiff by way of cheque on 07.05.2016. It has been further submitted that payment was towards shortfall of final bill and when the plaintiff paid the shortfall without any protest, the suit is not maintainable and is abuse to process of law. It has been further submitted that plaintiff was required to complete the work as per work order by 22.07.2013, but the plaintiff never adhered to the time frame and has substantially delayed the work which was completed on 15.01.2015.
Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 BhupeshDate: kumar Kumar 2025.08.02
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:54:12 +0530 13 It has been further submitted that plaintiff was required to obtain permission for obtaining valid gate passes for his labour and equipment in view of clause 10.17.0.0 and was also required to obtain work permit and vehicle permits and said permissions were issued by defendant for smooth entry into the refinery. It has been further submitted that plaintiff was granted extension of period for completion of work by defendant and plaintiff never applied for the same because the plaintiff was aware of the fact that delay was being caused because of lethargic attitude of the plaintiff.
It has been further submitted that around 17 extensions were granted to plaintiff for completion of work from 18.07.2013 till 31.08.2017. It has been further submitted that as per clause 4.4.0.0, inter alia, for delay in execution of work 10% price reduction could be imposed by defendant. It has been further submitted that accordingly from the total contract value of Rs.12,03,34,070/- price reduction on final bill to the tune of Rs.10% alongwith GST @ 18% a sum of Rs.1,44,99,420.26 was imposed/deducted.
It has been further submitted that plaintiff was entitled for mobilization advance as per contract subject to furnishing of composite bank guarantee. It has been further submitted that further the defendant was required to pay Rs.5.0 crore subject to fulfilling certain conditions like submission of invoice / application for release of mobilization of advance with further condition to furnish bank guarantee.
It has been further submitted that said clause does not mean that plaintiff was entitled for advance as matter of right but was subject to certain conditions with object to complete work. It has been further submitted that request for advance was made on 25.12.2012 and bank guarantee was furnished on 5.1.2013 and as such mobilization advance was paid on Digitally signed by Bhupesh Bhupesh kumar Date: CS DJ 359/2019 kumar Bhupesh2025.08.02 Kumar 16:54:18 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 +0530 14 10.01.2013. On this aspect, it has been submitted that delay was caused by plaintiff.
It has been further submitted that defendant as per clause 2.5.10 of GCC was entitled to alter the scope of work. It has been further submitted that plaintiff has claimed Rs.8,13,000/- towards charges incurred on account of extended stay is not maintainable in view of clause 4.3.10.0 of GCC. It has been further submitted that as per contract it was duty of plaintiff to provide adequate manpower and machinery but plaintiff has failed to mobilize the said resources on time.
It has been further submitted that as per terms of contract viz. 2.3.0.0 of GCC the contractor was required to prepare and furnish drawings in accordance with general specification for approval of defendant. It has been further submitted that plaintiff has failed to bring on record any material to establish any default on part of defendant.
It has been further submitted that work fronts were released progressively by defendant to plaintiff who failed to execute the subject work on released work fronts. In this respect it is submitted tha drawing for PMCC front issued to plaintiff at the time of kick off meeting held on 04.12.2012 but plaintiff failed to complete PMCC work within scheduled period. On this aspect, it has been submitted that plaintiff undertook to complete said work by 22.8.2013 but it was completed on 25.06.2014.
It has been further submitted that plaintiff has alleged that he was instructed to execute gypsum false ceiling job on 14.04.2014 which was not within scope of work of plaintiff. On this aspect, it has been submitted that execution of said gypsum false ceiling had not been on completion of overall PMCC building job and further submitted that plaintiff has attempted to mislead the Court on this aspect.
Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 BhupeshDate: kumar Kumar 2025.08.02
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:54:25 +0530 15 It has been further submitted that AHU work was delayed and completed on 23.11.2013 due to reasons attributed to plaintiff like inadequate deployment of manpower and resources. It has been further submitted that plaintiff has falsely alleged that AHU work drawing was issued on 13.6.13 and was revised on 22.8.13. on this aspect it has been further submitted that drawing was issued to plaintiff on 2.5.13 and work was to be completed by 1.7.2013. It has been further submitted that defendant time to time has follow up the matter through its email 23.5.13 the plaintiff was informed that no work was done by plaintiff since 19.05.2013 viz a viz AHU room.
It has been further submitted that despite timely clearance of water proofing and screening work for AHU room, plaintiff adopted lackadaisical attitude. It has been further submitted that plaintiff has taken false plea regarding blast proof wall work. On this aspect It has been further submitted that area of blast proof wall was handing on 25.04.2013 as per record of minutes of meeting held on 27.04.2013. on this aspect It has been further submitted that when no work done by plaintiff on blast proof wall since 19.05.2013 defendant on 16.06.2013 intimated the plaintiff that no sufficient manpower and resource have been deployed by plaintiff over there. It has been further submitted that allegations of plaintiff that work fronts were affected due to work was being done by other agencies is also not correct. On this aspect it has been submitted that work fronts in refinery were given as per agreed time line. Since plaintiff was unable to complete the subject work within agreed time defendant could not keep waiting for defendant to complete previous work, as such handing over the work fronts to plaintiff was not feasible nor practical.
It has been further submitted that plaintiff was wrong in stating qua extra sheeting work. On this aspect it is stated that in view of clause 2.5.1.0 Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 kumar Date:
Bhupesh2025.08.02 Kumar 16:54:31 +0530 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16 of GCC, fixing of pre-coated galvanized steel sheets plaintiff was bound to do it.
It has been further submitted that there was no delay in release of work front for roof sheeting work of fire water pump house, but it was due to act of plaintiff which delayed the matter and this fact is evident from letter dated. 16.06.2013.
It has been further submitted that HPL shed work was delayed due to act of plaintiff and was completed on 10.01.2014. It has been further submitted that plaintiff in regard to space frame structure work has stated false and incorrect and the it has been delayed due to plaintiff which is pertinent from meeting held on 26.09.2013. It has been further submitted that plaintiff was informed vide email dated 11.1.2014 that space framed LPG and propelne work was needed to be expedite because it was to be released to another agency. It has been further submitted that vide email 25.02.2014 it was informed that work was going in space frame structure and the said email was followed by another email 16.04.2014. It has been further submitted that due to LPG Bottling plant the welding permits were available to all agencies during night and Sunday/holidays and the plea of plaintiff of non issuance of welding permit is wrong. It has been further submitted that plaintiff has failed to execute work in night shifts, Sundays and holidays.
It has been further submitted that plea of plaintiff is that delay in issuance of drawing for inspection bridge cause the delay is false. On this aspect it has been submitted that for inspection bridge job, the plaintiff could not procure structural steel and as such work of this project was delayed.
The defendant further submitted that plaintiff has taken false plea that defendant is holding its running account bills. It has been further submitted that 13th RA bill amounting to Rs.1,07,82,834.80 was submitted by plaintiff Digitally signed by Bhupesh CS DJ 359/2019 Bhupesh Bhupesh Kumar kumar District Judge(Commercial)-05, Saket Courts, kumar South East/02.08.2025 Date:
2025.08.02 16:54:40 +0530 17 on 05.08.2014 is contrary to plaintiff's claim regarding approval of bill by defendant on 23.08.2014 after adjusting Rs.47,54,000/-.
It has been further submitted that site for parking area work was handed over to plaintiff on 04.12.2012. but progress of work was very slow. It has been further submitted that it was arranging / excavating earth was within scope work of plaintiff. It has been further submitted that plaintiff's allegation are wrong to the effect that dismantling of boundary wall in east and south side of filling station was extra work. However, it was part of work assigned to plaintiff. It has been further submitted that defendant instructed plaintiff to carry out water proofing work on entire roof slab and the same was time consuming. On this aspect, It has been submitted that job for water proofing was clearly stated in SOR and the same cannot be considered to be additional job. It has been further submitted that suit is not maintainable because TECHNIP India Ltd. was project manager was not made party to the present suit. Further the defendant has made certain preliminary submissions and has mentioned certain clauses of agreement and details of meeting etc., issuing of emails etc. exchanged between both parties.
On merits, it was denied that plaintiff is a registered company. The status of defendant and the fact that defendant is engaged in refining and marketing petroleum and its product and award of work in question to plaintiff has not been disputed. The fact that the acceptance was issued on 23.11.2012 following by letter 12.12.2012 was also not disputed. It was also not disputed that defendant appoint TECHNIP (TPKTI) as Project Manager.
On this aspect, It has been further submitted that when plaintiff itself has stated that TECHNIP was focal contact point, hence, was necessary party. It was not disputed that work was required to be completed within 8 months. On this aspect it was denied that delay has been caused due to act of Digitally signed by Bhupesh CS DJ 359/2019 Bhupesh kumar Bhupesh Date:Kumar kumar District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 2025.08.02 16:54:46 +0530 18 defendant and submitted that it was due to plaintiff as the plaintiff has failed to carry out obligation under contract. It was denied that seven provisional time extensions were granted by defendant for completion of work. It is submitted that defendant has granted 17 times extension for completion of work. It was submitted that extension was granted with undertaking of plaintiff that plaintiff would not claim for extended period. It has been further submitted that even otherwise the permission granted to plaintiff was without any prejudice to rights of defendant to impose price reduction. It has been submitted that plaintiff has not filed on record letter dated 07.04.2015 qua extension of time upto 15.01.2015.
It was denied that plaintiff issued email dt. 06.4.2014 requesting time extension and payment of final bill. It has been further submitted that plaintiff has paid shortfall amount without any protest whatsoever. It was denied that defendant has wrongly imposed price reduction of 10% of contract value. It was denied that effective date of commencement of contract was got shifted to 07.1.2013. It has been further submitted that there was no delay in part of mobilization advance. It was denied that plaintiff was not able to mobilize manpower at site due to absence of labour license.
It has been further submitted that for labour license application was moved on 11.01.2013 despite From-V was issued on 22.12.2012, therefore, plaintiff could procure the license on 21.1.2013. On this aspect it has been further submitted that defendant could have issued 19 number of gate passes immediately without submission of application, however, plaintiff never applied for the same.
It has been further submitted that workman compensation policy was submitted by plaintiff belated on 11.2.2013. It was denied that delay of 29 days in obtaining gate passes was due to defendant.
Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 Bhupesh Date: kumar Kumar 2025.08.02
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:54:51 +0530 19 It was denied that plaintiff completed RCC work upto first lift of blast wall and cable trench upto ground floor and handed over the same to other agency for cable lying on 04.8.2013. It was denied that staging work was delayed due to work being executed by other agencies. It was denied that plaintiff purportedly having to mobilize labor for RCC dismantling, excavation and shuttering material goes against terms of contract. On this aspect, It has been further submitted that plaintiff has not executed any extra length of wall since executed length was already given in the drawing. It was denied that extension of blast wall was purportedly delayed because four numbers earth pits were falling in the raft portion and had to be shifted by other agencies. It was denied that shifting was done till 15.12.2013 and plaintiff completed the job on 10.01.2014. On this aspect, It has been further submitted that blast proof wall was completed on 10.01.2014 and delay was solely attributable to plaintiff. It has been further submitted that only one earth pit was shifted to other location and the plea of plaintiff that four earth pit were shifted is wrong. It was denied that supplying and fixing of pre coated galvanized steel sheets were not covered in original scope of work. It was denied that defendant has approved shop drawings on 15.02.2013. It has been further submitted that roof sheeting work of fire water pump was handed over on 17.04.2015 contrary to allegations of plaintiff. It has been further submitted that completion date for said job being ended by July, 2013 and plaintiff had sufficient time to complete it but due to slow progress the said delay has been caused. It was denied that work front for sheeting work was released on 31.08.2013 and job for pump house was completed on 20.09.2013.
Digitally
signed by
Bhupesh
Bhupesh kumar
kumar Date:
CS DJ 359/2019 Bhupesh Kumar
2025.08.02
16:54:56
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 +0530 20 It has been further submitted that plaintiff for reason attributable to it was unable to start work immediately and started job at November, 2013 and could complete only 75% of total job till end of December, 2013.
Further all the corresponding pleas taken by plaintiff qua cause of delay in the plaint were denied on the basis of preliminary submissions made by defendant. Inter alia, on the basis of these submissions, prayer has been made to dismiss the suit.
4. Replication to the written statement was filed by the plaintiff, wherein, the averments made in written statement have been generally denied and those made in the plaint have been reiterated and reaffirmed.
5. On the basis of pleadings of parties, following issues were framed on 17.07.2023:-
1. Whether the plaintiff is entitled for recovery of sum of Rs.1,33,90,815/- from the defendant, as prayed for? OPP
2. Whether, plaintiff is entitled for any interest, if so, for which period and on what rate? OPP.
3. Relief.
6. After framing of issues, Ld. Local Commissioner was appointed for the purpose of recording evidence of parties. After concluding evidence of parties, Local Commissioner has furnished the report. However, Ld. Local Commissioner vide order dated 16.01.2025 closed the evidence of plaintiff on the ground that PW-1 had not turned up. An application was moved on behalf of plaintiff to recall the said order, which was allowed on 25.03.2025 and PW-1 was recalled for re-
examination. His further cross-examination was carried out in the Court itself in- stead of referring the matter to the Ld. Local Commissioner.
Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 kumar Bhupesh Kumar Date: 2025.08.02 16:55:02
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 +0530 21
7. PW-1, Sh. Sahil Mittal, Director of plaintiff company has lead his evi- dence by way of affidavit Ex. PW1/A, wherein he has made similar deposition to the contents of the plaint. The witness has further relied upon following doc- uments Ex.PW-1/1 annexure 1 dated 07.04.2015 seeking request for time ex- tension, Ex.PW-1/2 Annexure 2 dated 06.05.2015 as regard final time exten- sion, Ex.PW-1/3-Annexure 3 dated 10.08.2013 regarding civil work progress status, Ex.PW-1/4-Certificate U/s 65-B of Indian Evidence Act, Ex.PW-1/5- Fax dated 23.11.2012, Ex.PW-1/6-Detailed letter of acceptance dated 12.12.2012, Ex.PW-1/7-Completion certificate of work order, Ex.PW-1/8-Let- ter dated 04.12.2012 regarding Form V, Ex.PW-1/9 SKB Letter dated 02.02.2013 & 04.02.2013 for gate pass, Ex.PW-1/10 SKB letter dated 08.01.2013 constraint at site shift of coordinate, Ex.PW-1/11 SKB letter dated 08.04.2013 orientation approval on 22.03.2013, Ex.PW-1/12 RCM issue of drawing dated 14.06.2013 and 01.07.2013, Ex.PW-1/13 SKB email dated 25.12.2013 finishing internal works, Ex.PW-1/14 RCM email dated 01.02.2014 clearance brick wall, Ex.PW-1/15 RCM email dated 14.04.2014 confirming addl. Work, Ex.PW-1/16 RCM email dated 17.06.2013, Ex.PW- 1/17 clearance, statement dated 24.06.2013 of 40% area, Ex.PW-1/18 state- ment dated 29.08.2013 of 100% area clearance on 23.08.2013, Ex.PW-1/19 defendant's emails dated 07.06.2014, Ex.PW-1/20 MOM dated 27.04.2013, Ex.PW-1/21Email dated 02.05.2013, Ex.PW-1/22 MOM dated 20.04.2013, Ex.PW-1/23 SKB letter dated 14.06.2014 for front clearance, Ex.PW-1/24 - RCM email dated 10.08.2013 enclosing status on 08.08.2013, Ex.PW-1/25 SKB email dated 09.12.2013 enclosing letter 09.12.2013 stating constraints, Ex.PW-1/26 is RCM email dated 04.05.2013 releasing roof sheet front, Ex.PW-1/27 is RCM email dated 05.09.2013 release front on 31.08.2013 and S type louvers revised, Ex.PW-1/28 is RCM email dated 25.06.2013 with civil Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 Bhupesh Kumar kumar Date:
2025.08.02 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:55:09 +0530 22 status on 24.06.2013, Ex.PW-1/29 is RCM email dated 10.08.2013 with civil status on 08.08.2013, Ex.PW-1/30 is MOM dated 08.07.2013, Ex.PW-1/31 is RCM email dated 11.01.2014 with civil status on 10.01.2014, Ex.PW-1/32 is SKB letter dated 08.01.2014 with email dt. 08.01.2014 for cable not properly laid and non erection of structure, Ex.PW-1/33 is SKB email dated 04.02.2014 for non erection of structure by other agency, Ex.PW-1/34 is defendant's mail dated 13.02.2014 for rev, drwg to be issued by RCM, Ex.PW-1/35 is SKB email dated 20.05.2014 for permission to dismantle, Ex.PW-1/36 is RCM email dated 12.01.2013 issuing drawing coordinates, Ex.PW-1/37 is SKB letter dated 30.01.2013 along with approval dated 10.01.2013 of defendant, Ex.PW- 1/38 is MOM dated 07.02.2013 for ROB road centre, Ex.PW-1/39 is RCM email dated 18.03.2013 for stop work, Ex.PW-1/40 is RCM email dated 11.04.2013 final layout of TT Parking and boundary wall, Ex.PW-1/41 is MOM dated 08.07.2013 for pendency of permission of dismantling, Ex.PW-
1/42 is RCM email dated 29.04.2014 for new excavation for cable, Ex.PW- 1/43 SKB email dated 13.02.2014 for hold up due to drawing and false ceiling front, Ex.PW-1/44 is Letter dated 12.06.2014, Ex.PW-1/45 is SKB email dated 12.06.2014, Ex.PW-1/46 is SKB email dated 15.02.2014, Ex.PW-1/47 is Letter dated 03.09.2013, Ex.PW-1/48 is SKB email dated 23.09.2013 with email dated 23.09.2013 for deviation approval due to exceeding of SOR, Ex.PW- 1/49 is SKB letter dated 28.11.2013 for release of payment, Ex.PW-1/50 is SKB email dated 29.03.2016, 06.04.2016, Technip Email 08.04.2016 and SKB email dated 16.04.2016 and 27.04.2016 for allowing time extension and mak- ing payment of final bill, Ex.PW-1/51 is SKB authorization to its Director, and Ex.PW-1/52 is payment vouchers, receipts, salary payments, rent of engineer-
ing goods and equipment paid etc. Digitally signed by Bhupesh Bhupesh kumar Date: kumar 2025.08.02 CS DJ 359/2019 Bhupesh 16:55:16 Kumar +0530
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 23 The witness was cross-examined at length by Ld. Counsel for defendant. However, his cross-examination shall be considered at the time of appreciation of evidence. PE was closed.
8. The defendant has examined Mr. Dushyant Yadav, Sr. Manager as DW- 1, who has lead his evidence by way of affidavit Ex. DW1/A and made similar deposition to that of contents of the written statement. The witness has further brought on record following documents such as Ex.DW-1/AA is copy of au- thority letter dated 03.10.2024, Ex.DW-1/1 is copy of MOM dated 05.12.2012, Ex.DW-1/2 is copy of letter dated 25.12.2012, Ex.DW-1/3-Copy of letter dated 19.01.2013, Ex.DW-1/4 is copy of license dated 22.01.2013, Ex.DW-1/5-Copy of letter dated 31.01.2013, Ex.DW-1/6 is Copy of letter dated 04.02.2013, Ex.DW-1/7 is copy of letter dated 08.02.2013, Ex.DW-1/8 is copy of MOM dated 28.02.2013, Mark DW-1/9 is copy of MOM dated 23.02.2013, Ex.DW- 1/10 is copy of Catch-up plan dated 05.03.2013, Ex.DW-1/11-Copy of letter dated 09.04.2013, Ex.DW-1/12 is copy of MOM dated 25.04.2013, Ex.DW- 1/13 is copy of MOM dated 02.05.2013, Ex.DW-1/14 is copy of letter dated 15.05.2013, Ex.DW-1/15 is copy of email dated 23.05.2013, Ex.DW-1/16 is copy of letter dated 04.06.2013, Ex.DW-1/17 is Copy of letter dated 16.06.2013, Ex.DW-1/18 is copy of letter dated 28.06.2013, Ex.DW-1/19 is Copy of letter dated 17.07.2013, Ex.DW-1/20 is copy of letter dated 18.07.2013, Ex.DW-1/21 is copy of letter dated 22.07.2013, Ex.DW-1/22 is Copy of letter dated 20.09.2013, Ex.DW-1/23 is Copy of letter dated 21.11.2013, Ex.DW-1/24 is copy of letter dated 21.11.2013, Ex.DW-1/25 is Copy of letter dated 21.11.2013, Ex.DW-1/26 is copy of letter dated 28.11.2013, Ex.DW-1/27 is copy of letter dated 30.11.2013, Ex.DW-1/28 is copy of letter dated 14.01.2014, Ex.DW-1/29 is copy of letter dated Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 BhupeshDate:
kumar Kumar
2025.08.02
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:55:25 +0530 24 15.01.2014, Mark DW-1/30 is copy of email dated 18.02.2014, Ex.DW-1/31 is Copy of letter dated 18.02.2014, Ex.DW-1/32 is copy of email dated 25.02.2014, Ex.DW-1/33 is copy of letter dated 05.03.2014, Ex.DW-1/34 is copy of letter dated 15.03.2014, Ex.DW-1/35 is copy of email dated 19.03.2014, Ex.DW-1/36 is copy of email dated 19.03.2014, Ex.DW-1/37- Copy of letter dated 20.03.2014, Ex.DW-1/38 is Copy of email dated 21.03.2014, Ex.DW-1/39 is copy of email dated 03.04.2014, Ex.DW-1/40 is Copy of email dated 04.04.2014, Ex.DW-1/41 is copy of email dated 16.04.2014, Ex.DW-1/42 is copy of email dated 16.04.2014, Ex.DW-1/43 is copy of letter dated 30.04.2014, Ex.DW-1/44 is copy of email dated 12.06.2014, Ex.DW-1/45 is copy of letter dated 13.06.2014, Ex.DW-1/46- Copy of letter dated 14.06.2014, Ex.DW-1/47 is copy of email dated 28.06.2014, Ex.DW-1/48 is copy of letter dated 30.07.2014, Ex.DW-1/49- Copy of letter dated 31.07.2014, Ex.DW-1/50 is copy of letter dated 29.08.2014, Ex.DW-1/51-Copy of letter dated 30.08.2014, Ex.DW-1/52-Copy of email dated 20.10.2014, Ex.DW-1/53 is copy of letter dated 28.10.2014, Ex.DW-1/54 is copy of letter dated 31.01.2014, Ex.DW-1/55 is copy of email dated 04.11.2014, Ex.DW-1/56 is copy of email dated 24.11.2014, Ex.DW- 1/57 is copy of letter dated 28.11.2014, Ex.DW-1/58 is copy of letter dated 29.11.2014, Ex.DW-1/59 is copy of email dated 01.12.2014, Ex.DW-1/60- Copy of email dated 23.12.2014, Ex.DW-1/61 is copy of letter dated 30.12.2014, Ex.DW-1/62 is copy of letter dated 30.12.2014, Ex.DW-1/63- Copy of letter dated 27.02.2015, Ex.DW-1/64 is copy of letter dated 28.02.2015, Ex.DW-1/65 is copy of letter dated 14.04.2015, Ex.DW-1/66 is Copy of letter dated 28.04.2015, Ex.DW-1/67 is copy of letter dated 01.05.2015, Ex.DW-1/68 is copy of letter dated 29.05.2015, Ex.DW-1/69 is copy of letter dated 01.06.2015, Ex.DW-1/70-Copy of letter dated 30.06.2015, Digitally signed by Bhupesh CS DJ 359/2019 Bhupesh Bhupesh Kumar kumar District Judge(Commercial)-05, Saket Courts,kumar Date:
South East/02.08.2025 2025.08.02 16:55:32 +0530 25 Ex.DW-1/71 is copy of letter dated 09.07.2015, Ex.DW-1/72 is copy of letter dated 28.07.2015, Ex.DW-1/73 is copy of letter dated 03.08.2015, Ex.DW- 1/74 is Copy of letter dated 13.08.2015, Ex.DW-1/75 is copy of letter dated 20.08.2015, Ex.DW-1/76 is copy of email dated 27.04.2016, Ex.DW-1/77 is copy of email dated 27.04.2016, Ex.DW-1/78 is copy of email dated 27.04.2016, Ex.DW-1/79 is copy of email dated 27.04.2016, Ex.DW-1/80 is copy of email dated 09.05.2016, Ex.DW-1/81 is copy of email dated 09.05.2016, Ex.DW-1/82 is copy of letter dated 11.05.2016, Ex.DW-1/83 is copy of email dated 12.05.2016, and Ex.DW-1/84 is certificate U/s 65-B Evi-
dence Act. This witness was also cross-examined at length. However, his cross-examination shall also be considered at the time of appreciation of evi- dence. DE was closed.
9. I have heard the arguments of Mr. Rajinder Kaul, Ld. Counsel for plaintiff and Ms. Vineeta Meharia, Ld. Senior Counsel alongwith Mr. Abinash Agarwal for defendant besides going through the material available on record. Written submissions also filed on behalf of both parties.
10. My issue-wise findings are as under :-
Issue no. 1. Whether the plaintiff is entitled for recovery of sum of Rs.1,33,90,815/- from the defendant, as prayed for? OPP The onus to prove this issue was upon the plaintiff. Ld. Counsel for plaintiff has submitted that work order dated 23.11.2012 was awarded to plaintiff by defendant for civil, structural and allied works at IOCL, Mathura Refinery, and LPG bottling plant, Mathura, which was required to be completed within the period of 8 months i.e. till Digitally signed by Bhupesh Bhupesh kumar Date: CS DJ 359/2019 kumar Bhupesh 2025.08.02 Kumar 16:55:39 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 +0530 26 22.07.2013. It has been further submitted that work was not completed on time and was delayed on the reasons attributable to defendant only.
In respect to delay, it has been submitted to the effect that delay in execution of contract agreement which was necessary for mobilization advance, delay in issuing necessary From V to get labor license, delay in obtaining gate passes, non-availability of work fronts, assigning additional work etc., were on the part of defendant resulting in delay in completion of work.
It has been further submitted that communication for providing and expediting for the said purposes were taken place between both parties. It has been further submitted that work was completed on 15.01.2015. It has been further submitted that when the final bill was submitted by plaintiff the defendant has deducted 10% of the total value of contract. It has been further submitted that said amount was deducted on the ground that plaintiff has delayed in execution of work whereas the delay has been caused by the defendant on the above mentioned reasons. It has been further submitted that this act of defendant was arbitrary and plaintiff is entitled for recovery of the said amount. It has been further submitted that plaintiff has examined PW-1 Mr. Sahil Mittal, one of the director of plaintiff company who has fully corroborated the case of plaintiff, and Ld. counsel for defendant has failed to extract anything favorable to defendant and as such evidence of PW-1 remained un-impeached.
Per contra, Ld. Sr. Counsel Ms. Vineeta Meharia, has submitted that suit is not maintainable because the plaintiff has not exhausted the remedy of pre-institution mediation before filing of present suit. On the basis of these submissions prayer has been made that plaintiff is not entitled for any such claim.
Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 kumar Date: Bhupesh 2025.08.02 Kumar 16:55:45 +0530
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 27 It has been further submitted to the effect that as per work order in question, the estimated contract value of work was around Rs.13,44,55,487/- and the work was required to be completed within 8 months from the date of issuance of fax of acceptance i.e. 23.11.2012. It has been further submitted that as per clause 4.4 the defendant had right to deduct 10% of the total value of contract. It has been further submitted that there was substantial delay in completion of work, which was completed on 15.01.2015 and as such from the final bill 10% of total value of contract was deducted which comes to Rs.1,41,99,420.26, including GST.
It has been further submitted that when plaintiff had submitted final bill on 14.04.2015 of sum of Rs.1,08,43,634/-, plaintiff was informed that there was short fall of Rs.26,81,170/-, and plaintiff was called upon to deposit the same. But instead of depositing of same, the plaintiff has called for details of shortfalls from defendant and insisted that shortfall is of Rs.15,92,195/- only. Thereafter, after negotiation the shortfall was settled to the tune of Rs.21,17,510/-. Then payment of said shortfall was made by plaintiff unconditionally and without any protest on the shortfall or in respect to deduction of 10% of contract amount. It has been further submitted that on submission of final bill when it was settled that plaintiff shall pay shortfall and which was ultimately deposited, itself proves that the accounts were finally settled between parties. Hence, the plaintiff is estopped from asking for refund of 10% amount deducted from cost of the contract. Reliance in this regard has been made in case M/s P.K.Ramaiah and Company vs Chairman and Managing Director, National Thermal Power Corp, 1994 Supp (3) SCC 126 and ONGC Mangalore Petrochemicals Ltd. vs ANS Construction Ltd. And anr., (2018) 3 SCC 373.
Digitally signed Bhupesh by Bhupesh
kumar
CS DJ 359/2019 kumar
Bhupesh Kumar
Date: 2025.08.02
16:55:51 +0530
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 28 It has been further vehemently submitted that plaintiff kept mum for about three years and has filed the present suit only few days prior to completion of three years with malafide intention and after thought knowing well the suit is without any basis. It has been further submitted that plaintiff has failed to prove on record any fact that delay has been caused due to any act of defendant.
In the written submissions it has been submitted that the Court is not require to analyze evidence so as to find which party was responsible for delay when the matter was already settled between parties. However, it is further submitted that defendant has brought on record number of documents to prove this fact.
11. Heard. Material perused.
First of all, the plea taken by defendant that plaintiff has not exhausted the remedy of Section 12A of Commercial Courts Act, as contended in written submission is taken up.
In case M/s Patil Automation Private Limited And Ors. Vs Rakheja Engineers Private Limited, (2022) 10 SCC 1, Hon'ble Supreme Court has held as under :
" This power can be exercised even suo motu by the Court as explained earlier in the judgment. We, however, make this declaration effective from 20.08.2022 so that concerned stakeholders become sufficiently informed. Still further, we however direct that in case plaints have been already rejected and no steps have been taken within the period of limitation, the matter cannot be reopened on the basis of this declaration. Still further, if the order of rejection of the plaint has been acted upon by filing a fresh suit, the declaration of prospective effect will not avail the plaintiff. Finally, if the plaint is filed violating Section 12A after the jurisdictional High Court has declared Digitally signed by Bhupesh CS DJ 359/2019 Bhupesh kumar Bhupesh Date: Kumar kumar District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 2025.08.02 16:55:55 +0530 29 Section 12A mandatory also, the plaintiff will not be entitled to the relief."
In view of this judgment, Hon'ble Supreme Court has fixed the date as 20.08.2022 for declaring that the suit is not maintainable without pre- institution mediation. In the matter in hand, the suit was filed on 26.04.2019 i.e. prior to 20.08.2022 i.e. mandate declared in the aforesaid judgment.
Further as matter of record, on 14.05.2019, my Ld. Predecessor Court during proceedings of the matter had directed Ld. counsel for plaintiff to explore the possibility of pre-institution mediation in compliance of Section 12A, which was availed by plaintiff and the matter not settled and non-starter report was filed. Considering the facts and circumstances, and above judgment, it is found that non-availing the remedy of pre-institution mediation as per Section 12A, has no effect on the present case and defendant is not entitled for benefit on this account.
12. Main contention of Ld.Senior counsel for defendant is that since plaintiff has settled the final account with defendant, hence, plaintiff is debarred from making any claim from defendant. On this aspect, first it is necessary to discuss whether plaintiff has settled the final accounts/matter with defendant.
On this aspect, certain relevant emails exchanged between parties are reproduced and discussed, as under :-
E-mail dated 27 April, 2016, sent by defendant, Ex. DW1/76 Subject: FW: Bill requiring clarifications - wo 23770952 Dear Sir, Refer to the trailing mail from our Finance regarding processing of your Final Bill. Please be informed that there is shortfall of Rs.26,81,107.00 in Final Bill Payable amount after adjusting Price Reduction. As such, you are advised to submit Digitally signed by Bhupesh Bhupesh kumar Date: CS DJ 359/2019 Bhupesh Kumar kumar 2025.08.02 16:56:03 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 +0530 30 Demand Draft of said shortfall amount latest by 30.04.2016 in order to settle the Final Bill and close the contract. Please accord the priority as the BG towards Price Reduction is expiring on 11.05.2016 Regards, Manish Goyal Project Manager Indian Oil Corporation Limited Mathura Refinery Mob: 94 11 44 33 22 In view of said email, shortfall of Rs.26,81,107.00 was demanded from plaintiff and further stated that after adjusting the price reduction of the amount was in the knowledge of plaintiff.
Thereafter the plaintiff has responded to this mail vide Ex.DW1/77 dated 27.04.2015, as under
Dear Sir, With reference to your below mail, we request you to please forward us the calculation detail for the shortfall amount. Regards, Sahil Mittal.
The said email reflects that the plaintiff has not disputed the price reduction and has asked for calculation details for shortfall only.
The said shortfall was furnished to plaintiff vide email Ex.DW1/78, as under :
Subject: FW: Bill requiring clarifications - wo 23770952 Dear Sir, Please find the details as desired for needful at your end please. Regards, Manish Goyal Project Manager Indian Oil Corporation Limited Mathura Refinery Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 kumarBhupesh Kumar Date:
2025.08.02 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:56:09 +0530 31 Mob: 94 11 44 33 22 Thereafter, another email was received from plaintiff wherein shortfall was mentioned as Rs.15,92,195/- and thereafter on final confirmation vide email Ex.DW1/80, which is as under :
Dear Sir, With reference to below mail, we confirm that the cheuge for Rs. 21,17,510/- (submitted against shortfall amount) has been cleared from our bank on 07/05/016.
Thus, we request you to kindly release our B.G. amounting to Rs. 40.00 lacs.
Regards, Sahil Mittal.
As per this communication through email, the plaintiff after paying the shortfall amount of sum of Rs.21,17,510/-, the plaintiff requested the defendant to release Bank Guarantee of Rs.40.0 Lakh.
At this stage, the question arises whether the exchange of aforesaid emails between parties, amount to acknowledgment of final settlement by plaintiff. On this aspect, it is found that even though vide email dated 27.04.2016 Ex.DW1/76 the defendant had informed the plaintiff that shortfall of sum of Rs.26,81,107/- in the final bill is payable after adjusting price deduction, but the defendant had not informed the plaintiff that exactly how much amount has been deducted from final bill or as to how much percentage the said deduction has been made. Further, there is no specific acknowledgment by plaintiff qua acceptance of settlement of account.
Ld. Counsel for defendant has relied upon judgment in case M/s P.K.Ramaiah and Company vs Chairman and Managing Director, National Thermal Power Corp, 1994 Supp (3) SCC 126. In this judgment the Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 kumar BhupeshDate:
Kumar 2025.08.02 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:56:15 +0530 32 contractor has admitted the full and final accounts by acknowledging the same in writing unconditionally.
Further in case ONGC Mangalore Petrochemicals Ltd. vs ANS Construction Ltd. And anr., (2018) 3 SCC 373, the full and final payment was accepted by the contractor and at that point of time he had not raised any claim for the loss incurred during execution of contract.
Reverting to the present matter there is no acknowledgment of full and final settlement of account by plaintiff. Moreover, the plaintiff is not claiming any additional claim, but has claimed the amount which was deducted by defendant on account of delay in completion of work, at the time of submission of final bill. Hence, both these judgments can be distinguished.
In case R.L. Kalathia and Company vs State of Gujarat (2011) 2 SCC 400, Hon'ble Supreme Court has, inter alia, held as under :
13. From the above conclusions of this Court, the following principles emerge:
(i) Merely because the contractor has issued "no-dues certificate", if there is an acceptable claim, the court cannot reject the same on the ground of issuance of "no-dues certificate".
(ii) Inasmuch as it is common that unless a discharge certificate is given in advance by the contractor, payment of bills are generally delayed, hence such a clause in the contract would not be an absolute bar to a contractor raising claims which are genuine at a later date even after submission of such "no-claim certificate".
(iii) Even after execution of full and final discharge voucher/receipt by one of the parties, if the said party is able to establish that he is entitled to further amount for which he is having adequate materials, he is not barred from claiming such amount merely because of acceptance of the final bill by mentioning "without prejudice" or by issuing "no-dues certificate".Digitally signed by Bhupesh
Bhupesh kumar
CS DJ 359/2019 kumar BhupeshDate:
Kumar
2025.08.02
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:56:21 +0530 33 In view of this judgment, in case party has any genuine claim even after issuance of No Dues Certificate, the claim cannot be rejected by the Court.
In the present matter, it is matter of fact that plaintiff has paid shortfall amount, but in case his claim is found to be genuine, the same cannot be rejected. The findings of the aforesaid judgment are fully applicable to facts of the instant case.
13. Further, it is admitted fact that the work awarded to plaintiff was required to be completed in 08 months i.e. from 23.11.2012 till 22.07.2013, but it was completed on 15.01.2015.
Before discussing the evidence of parties on delay, here it is necessary to mention that General Conditions of Contract (GCC) qua which both parties have agreed to carry out the work has not been brought on record by any of the party. On query, ld. Counsel for both parties have submitted that important conditions required/necessary for disposal of the matter have already been reproduced in their pleadings, hence, there was no necessity to bring on record the GCC. However, the contentions of ld. Counsel for both parties in this respect does not inspire confidence of the Court because General Conditions of Contract (GCC) are the foundation of the matter, inter alia, to the effect that how and in what manner the work is to be completed. Under these eventualities, even if GCC has not been brought on record, the matter is looked into on the basis of evidence and documents proved on record, by parties.
In respect to delay in execution of work, it is found that defendant in the written submission has mentioned that the Court is not require to go into details of cause of delay because the plaintiff has already settled its account with defendant. What could be the effect of any such settlement, if any, Digitally signed by Bhupesh CS DJ 359/2019 Bhupesh kumar Bhupesh Kumar Date:
kumar District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 2025.08.02 16:56:27 +0530 34 settlement taken place between parties, would be considered later on. However, at this stage, it is necessary for the Court to look into the matter from the angle of delay because the main ground taken by plaintiff in the suit is deduction of 10% of the contract amount, by the defendant on ground of delay in execution of work was illegal and arbitrary. Under these circumstances without considering the fact that who was responsible for causing delay, the matter cannot be properly adjudicated.
Further, both parties are attributing the cause of delay on the another party and have lead evidence to substantiate their contentions in this respect. PW-1 Mr. Sahil Mittal, one of the Director was examined on behalf of plaintiff and Mr. Dushyant Yadav, Sr. Manager of defendant corporation was examined as DW-1. Their evidence has been scrutinized carefully.
PW-1 Mr. Sahil Mittal, has deposed to the effect that right from initial stage the defendant has caused delay. It has been further deposed to the effect that when the mobilization advance was required to be paid, one of the condition that party was required to execute and enter into contract document which was executed on 07.01.2013. Hence, there was initial delay of 45 days by the defendant. Likewise, this witness has deposed in detail the different kinds of work carried out in this case with delay attributed to defendant i.e. obtaining labor license, mobilization of machinery and manpower, delay in obtaining lay out plan/drawing, evacuation etc. This witness has further submitted that delay has also been caused because plaintiff was asked to carry out certain extra work, which was not part of contract. This witness was cross examined at length and found that Ld. Counsel for defendant has failed to shake the testimony of this witness on all material points i.e. the reasons mentioned of delay attributed to defendant. Hence, the testimony of this witness remained uncontroverted and unshaked. Certain suggestions have Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 BhupeshDate:
Kumar kumar District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 2025.08.02 16:56:33 +0530 35 been put to this witness viz. inability, inexperience, incapability, financial constraints etc. responsible for delay, but all these suggestions were denied. Putting mere suggestions are not sufficient to discard the testimony of any witness, and suggestion cannot take place of proof.
On the other hand, the evidence of DW-1 has been perused and certain queries were called from this witness. The relevant queries and their replies made by the witness are as under : -
Q-20. When was the Contract Agreement executed? Ans. The contract agreement was executed but I do not remember the date thereof. It is also correct that it is the requirement of the defendant.
Q-27. Can you tell from the record when Form V was issued by defendant?
Ans. I have seen the record but I could not find the date when Form V was issued by the defendant.
Q-29. Do you know full form of PMCC and AHU ? Ans. I do not know.
Q-30. Are you aware the route and the length of the cable trench involved in the contract?
Ans. Length is 350 meters approx. and route I do not remember. Q-31. Are you aware in whose scope was the preparation of drawings for the civil work?
Ans. It was within the scope of Technip. Q.44 Is it correct that clearance of left over material by other contractors of the site was not within the scope of plaintiff in this case?
Ans. No it was within the scope of the plaintiff. Q-51. Are you aware how many fronts were to be handed over by owner/consultant to the plaintiff in respect of the contract in question?
Ans. Precisely I cannot give the number of fronts nor any approximate number.
Q-54. Do you have any idea of other minute fronts? Ans. Since I am not involved in the execution of the work so I cannot pinpoint the total number of minute fronts.Digitally signed by Bhupesh
CS DJ 359/2019 Bhupesh
Bhupesh Kumar
kumar
District Judge(Commercial)-05, Saket Courts,kumar Date:
South East/02.08.2025
2025.08.02
16:56:38 +0530
36
Q-60. What is the process of invoking PRS (Price Reduction Schedule)?
Ans. For PRS to invoke or revoke first the job is to be completed, delay analysis has to be done, on the result of delay analysis is to be invoked or revoked.
Q-61. Please explain the process of preparing delay analysis? Contractor has to be prepared the delay analysis and submit the same to the defendant for verifying the same and on that basis delay analysis is prepared.
Q-62. Do you mean to say that delay analysis prepared by the contractor is not submitted to consultant? Ans. No. As a general rule contractor submits the delay analysis to contractor and the same is analyzed by the contractor and placed before the owner for final approval.
Q-63. Please tell whether in the present case the same process as stated above was followed ?
Ans. Yes.
Q-64. Since you were not personally involved in the contract in question can you tell on what basis are you saying Yes to Question no.63?
Ans. I am giving the answer to Question No.63 on the basis of recommendation made by the consultant submitted to the owner which I have seen.
Q-65. Can you show us from the record the said recommendation ? Ans. I have seen the judicial file the said recommendation is not on the record.
Q-66. Is it correct that in view of your answer to Question No.65 you cannot say how much PRS was recommended by consultant? Ans. The consultant had recommended 10% PRS. Q-67. What is the basis of your answer to Question No.66? Ans. Because I had seen time extension paper or delay analysis in which the aforesaid percentage was recommended. Q-68. Are you aware how many days the consultant had considered delay by contractor and how many days delay by defendant? Q-69. Have you records with you or have you seen from the records of the judicial file the dates on which different fronts were released by defendant to plaintiff ?
Ans. I cannot tell minutely the dates on which different fronts were released by defendant to plaintiff and that there is no record on judicial file pertaining to the same. Digitally signed by Bhupesh Bhupesh kumar kumar Date:
CS DJ 359/2019 Bhupesh Kumar
2025.08.02
16:56:45
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 +0530 37 Q-70. Have you records with you or have you seen from the records of the judicial file the dates on which major fronts were released by defendant to plaintiff ?
Ans. No such document is existing on judicial file. Q-81 Please see Ex.PW-1/28 and more particularly at Page no.62, is it correct that the front for cable trench was handed over on 01.07.2013 and that too only 55 meters out of total front of 300 meters?
Ans. Yes.
From careful scrutiny of cross-examination of DW-1, it is found that this witness was not able to explain the important facts viz. when the drawing were released to plaintiff, work fronts were handed over to plaintiff etc. These discrepancies goes to the root of the matter because handing over the drawings and work fronts etc. were important to enable the plaintiff to carry out the work at spot. Hence, the testimony of DW-1 is found to be unworthy of any credit to prove that it was plaintiff only who has caused delay in execution of work.
During course of arguments, Ld. counsel for plaintiff has submitted that area, where the work was to be executed was sensitive area i.e. refinery of IOCL, and for any movement of manpower or of the machinery etc. the necessary permissions from defendant were received, which was also major cause of delay in completion of work. On this aspect, I find substance in contention of Ld. Counsel for plaintiff that being sensitive area of the site, definitely necessary permissions were required before or during the execution of actual work.
14. Now the question arises whether 10% deduction of amount by defendant was genuine. In this respect from perusal of Ex.PW1/5, deduction of 10% is mentioned in clause a, which is as under :
Digitally signed by BhupeshBhupesh kumar Date: CS DJ 359/2019 kumar 2025.08.02 Bhupesh Kumar 16:56:50 +0530
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 38 The price adjustment for delay in completion of work shall be maximum 10% of total contract value, as per clause 4.4.0.0 of GCC.
From the plain reading of this clause, it is found that erring party for delay in completion of work is not required to pay 10% of contract value under all eventualities, because the word used in this clause is maximum, meaning by, it could be less than 10%. As mentioned earlier, the GCC have not been filed by any of the party. However, in respect to deduction @ 10%, DW-1 was cross-examined. The relevant portion of cross examination of DW-1 is as under : -
How the 10% amount is to be deducted, the defendant in his written statement has reproduced, as under :
"4.4.0.0 PRICE ADJUSTMENT FOR DELAY IN COMPLETION 4.4.1.0 The contractual price payable shall be subject to adjustment by way of discount as hereinafter specified, if the Unit(s) are mechanically completed or the contractual works are finally completed, subsequent the date of Mechanical Completion/final completion specified in the Progress Schedule." to "4.4.2.0 If Mechanical Completion of the Unit(s)/final completion of the works is not achieved by the last date of Mechanical Completion of the Unit(s)/final completion of the works specified in the Progress Schedule (hereinafter referred to as the "starting date for discount calculation"), the OWNER shall be entitled to adjustment by way of discount in the price of the works and services in a sum equivalent to the percent of the total contract value as specified below namely:
(xx) For Mechanical Completion of the Unit(s)/final completion of the works achieved within 20 (twenty) weeks of the starting date for discount calculation 10% of the total contract value. (xxi) The reduction in the contract price hereunder by way of price discount shall in no event exceed 10% (ten percent) of the total contract value."Digitally signed
Bhupesh by Bhupesh kumar CS DJ 359/2019 Bhupesh kumar Kumar Date: 2025.08.02 District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:56:56 +0530 39 From the cross-examination of DW-1, as per consultant there was delay of 534 days out of which 154 days delay was on the part of defendant and rest of plaintiff. The consultant has to prepare the report on the basis of input provided by defendant only. As matter of record, the said consultant has not been examined. As stated earlier, this witness has failed to give any clear reply in respect to series / sequence of work carried out or qua delay etc. The same creates doubt in mind of the Court qua genuineness of report of consultant as referred by DW1, in this cross-examination.
As stated earlier, there is delay of 534 days in completion of work, out of which delay of 134 days is on the part of defendant, as came in cross- examination of DW-1. However, in respect to delay in completion of work, in case, if any, delay has been caused by defendant, query was called from DW- 1, and he has replied accordingly, as under :-
Q-102. Is it correct that if there is a delay by defendant there can be delay by contractor of a greater period then the delay by defendant ?
Ans. It can be and it cannot be.
This witness has not denied that in case any delay is caused by defendant, the more delay might be caused by the plaintiff. Hence, it could be one of the reason of delay, but the responsibility of plaintiff alone cannot be fixed for causing delay.
15. One of the contention of Ld. Counsel for defendant is that plaintiff has filed present suit few days prior to expiry of period of limitation of three years. On this aspect it is found that it is matter of right of party when to file the suit, within period of limitation. This contention of Ld. Counsel for defendant is found to be without any force.
Digitally signed by BhupeshBhupesh kumar Date:
CS DJ 359/2019 kumar 2025.08.02
Bhupesh Kumar
16:57:02
+0530
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 40
16. In the light of above discussion, the case of plaintiff is found to be probable that delay in execution of work has been assigned wrongly to plaintiff by defendant. Considering the entire facts and circumstances, it is found that the plaintiff has proved on record that 10% amount of contract value i.e. Rs.1,25,77,815/- was arbitrary and plaintiff is entitled for the same.
17. The plaintiff has further claimed a sum of Rs. 8,13,000/- i.e. expenditure incurred by him because defendant had forced to keep equipments and manpower at the spot. However, the plaintiff has failed to bring on record any cogent evidence as to how he has calculated this amount. Hence, it is found that plaintiff is not entitled for the same.
The issue no.1 stand decided in favor of the plaintiff by holding that plaintiff is entitled for a sum of Rs.1,25,77,815/- from defendant.
18. Issue NO. 2. Whether, plaintiff is entitled for any interest, if so, for which period and on what rate? OPP.
The onus to prove this issue was upon the plaintiff. The plaintiff has claimed pendente lite and future interest @ 18% p.a. which is found to be on higher side. However, considering the facts and circumstances, it is found that interest @ 9% per annum, from the date of filing of suit till its realization would be sufficient to meet the ends of justice.
19. Relief.
Considering the entire facts and circumstances, the suit filed by the plaintiff stand decree for a sum of Rs.1,25,77,815/ alongwith interest @ 9% per annum from the date of filing of the suit till its realization alongwith cost of Rs.1,75,000/- (which includes Court fee and legal expenditure), in favor of Digitally signed by Bhupesh Bhupesh kumar CS DJ 359/2019 BhupeshDate:
kumar Kumar
2025.08.02
District Judge(Commercial)-05, Saket Courts, South East/02.08.2025 16:57:11 +0530 41 the plaintiff i.e. M/s SKB Civil Tech Projects Limited and against the defendant Indian Oil Corporation Limited. Here it is made clear that interest would not be payable on cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Dictated and announced Digitally
signed by
on 2nd August, 2025. Bhupesh
Bhupesh
kumar
(Bhupesh
kumar Kumar) Date:
2025.08.02
16:57:17
District Judge (Commercial Courts)-05 +0530
South-East District, Saket Courts, New Delhi CS DJ 359/2019 Bhupesh Kumar District Judge(Commercial)-05, Saket Courts, South East/02.08.2025