Delhi High Court - Orders
M/S Ram Niwas Goel vs South Delhi Municipal Corporation on 28 April, 2023
Author: Yashwant Varma
Bench: Yashwant Varma
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 654/2021
M/S RAM NIWAS GOEL ..... Plaintiff
Through: Mr. Avinash Trivedi and Mr.
Anurag Kaushik, Advs.
versus
SOUTH DELHI MUNICIPAL CORPORATION ..... Defendant
Through: Mr. Tushar Sannu, SC with Mr.
Priyakar Tiwary, Mr. Azad
Bansal Mr. Devvrat Tiwari and
Mr. Abhishek Gaind, Advs.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 28.04.2023 I.A. 84/2023 (U.O. 6 R. 17 r/w S. 151 CPC)
1. Bearing in mind the nature of disclosures which are made coupled with the fact that the challenge is proposed to be laid to an order of 14 October 2022 which came to be passed by the defendant after the institution and filing of the suit, the present application shall stand allowed.
2. The Court notes that a copy of the amended plaint already stands placed on the record. The defendant shall have a right to file an additional written statement in accordance with the rules of the Court. I.A. 437/2023 (U.O. 39 R. 1 & 2)
1. The present injunction application has been moved under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 seeking the following prayers:-
"It is, therefore, most respectfully prayed that this Hon'bleCourt may kindly be pleased to pass ad-interim ex-parteinjunction thereby restraining the respondent its concernedofficers, authorized Signature Not Verified representatives, employees, etc. toenforce/implement the letter of Digitally Signed By:NEHA Signing Date:28.04.2023 17:38:35 intimation/direction bearing no.bearing No. D/331/EE( M)- I/NGZ/2022 dated 14.10.2022 againstthe plaintiff/applicant with respect to work order bearing no.EE(M-Najafgarh )-I/SYS/2016- 17/369 dated 09.08.2016 duringthe pendency of the main suit in favour of applicant and againstthe respondent and;Any other order or relief which your Lordship may deemfit and proper in the facts and circumstances of the case be alsoawarded in favour of the applicant and against the respondent."
2. The plaintiff essentially is aggrieved by the orders of 14 October 2022 and 09 November 2022 which read thus: -
"NO.D/331/EE(M)-l/NGZ/2022 DATED : 14-10-2022 To M/s. Ram Niwas Goel 33, Prithvi Raj Road Adarsh Nagar, Delhi-110033 Subject : Imp. Dev of U/A colony at S.No. 1155 Dabar Enclave (SR block- A) Rawta Mode Jaffarpur Najafgarh in Ward No. 140 in NGZ. S/H: Construction of road and drain by pdg. SDBC and interlocking tiles in C- 140/NGZ Sir, The above said work was awarded to you vide work order no.EE(M-Najafgarh)NGZ/Sys/2016-17/369 dt. 09.08.2016 with time of completion of 15 months.As par agreement you have to start the work on dt. 10.08.2016 & complete the same on17.11.2017 but the said work was completed by you on dt. 28.02.2019 after delay of 454 days.
Accordingly, as per the record, the case for approval of time extension upto 28.02 .2019was processed and the Competent Authority approved the time extension upto 28.02. 2019 forthe above mentioned work with 10% levy of compensation of tendered value of contract comesto Rs . 96, 24,720/- under Clause-2 of the General Condition of the contract.
You are, therefore, directed to deposit the said amount i.e. Rs. 96,24,720/- on accountof levy of compensation with the department otherwise the same will be recovered from yourpending payment withheld with the department.
Executive Engineer (M)-I/NGZ AND NO.D/363/EE(M)-I/NGZ/2022 DATED : 9-11-2022 To Signature Not Verified Digitally Signed By:NEHA Signing Date:28.04.2023 17:38:35 M/s. Ram Niwas Goel 33, Prithvi Raj Road Adarsh Nagar, Delhi-110033 Subject : Imp. Dev of U/A colony at S.No. 1155 Dabar Enclave (SR block-A) Rawta Mode Jaffarpur Najafgarh inWardNo.140 inNGZ.S/H: Construction of road and drain by pdg. SDBC and interlocking tiles in C- 140/NGZ Sir, In continuation of this office letter no. D/331/EE(M)-I/NGZ dated 14.10.2022 whereinyou have directed to deposit the amount i.e. Rs. 96,24,720 on account of levy of compensationagainst the work order no. EE(M-Najafgarh)NGZ/Sys/2016-17/369 dt. 09.08.2016 (copyattached) but till date no reply has been received so far.
In view of above, you are, once again directed to deposit the said amount i.e.Rs. 96,24,720/- on account of levy of compensation with the department otherwise the samewill be recovered from your pending payment withheld with the department.
Executive Engineer (M)-I/NGZ"
3. The issue itself appears to arise on the basis of an assertion of the defendant that it is entitled to claim compensation in light of the extension of period which was granted as per the request of the plaintiff. According to the defendant, the project was delayed as per the admitted material on the record by 485 days. It is in the aforesaid backdrop that it claims the sum of Rs. 96,24,719/- being 10% of the total tender value in question.
4. According to Mr. Sannu, learned standing counsel appearing for the defendant, the aforesaid action is premised on Clause 2 of the General Conditions Contract [GCC] and more particularly to the power conferred on the defendant therein to recover the amount of compensation from any other sum payable to the contractor either under the same or any other contract. Clause 2 of the GCC reads thus:-
"Clause 2: lf the contractor fails to maintain the requiredprogress in terms of clause 5 or to complete the work andclear the site on or Signature Not Verified before the contract or extended date ofcompletion, he shall, without Digitally Signed prejudice to any other rightremedy available under the law to the By:NEHA Signing Date:28.04.2023 17:38:35 Government onoraccount of such breach, pay as agreed compensation theamount calculated at the rates stipulated below as theauthority specified in schedule âFâ (whose decision inwriting shall be final and binding) may decide on theamount of tendered value of the work for every completedday/month (as applicable) that the progress remains belowthat specified in Clause 5 or that the work remainsincomplete. This will also apply to items or group of itemsfor which a separate period of completion has been specified.
(i) Compensation @ 1.5 % per month of delay for delay ofwork to be computed on per day basis.
Provided always that the total amount of compensationfor delay to be paid under this Condition shall not exceed10% of the Tendered Value of work or of the TenderedValue of the item or group of items of work for which aseparate period of completion is originally given.
The amount of compensation may be adjusted or set- offagainst any sum payable to the Contractor under this or anyother contract with the Government. In case, the contractordoes not achieve a particular milestone mentioned inschedule F, or the rescheduled milestone(s) in terms ofClause 5.4, the amount shown against that milestone shallbe withheld, to be adjusted against the compensation leviedat the final grant of Extension of Time. With- holding of thisamount on failure to achieve a milestone, shall be automaticwithout any notice to the contractor. However, if thecontractor catches up with the progress of work on thesubsequent milestone(s), the withheld amount shall bereleased. In case the contractor fails to make up for thedelay in subsequent milestone(s), amount mentioned againsteach milestone missed subsequently also shall be withheld.However, no interest, whatsoever, shall be payable on suchwithheld amount."
5. The Court further notes that as per the own case of the defendant and which stands duly set forth in Para 31 of the written statement, it is averred that the Planning Department has already passed bills amounting to Rs.93,51,468/- and Rs.21,84,812/-.The defendant further asserts that the aforesaid amount shall be disbursed to the plaintiff upon it filing for extension of time and the same being allowed by the competent authority.
6. The fact that the plaintiff had duly applied for extension of time and the same was accepted is not in dispute. Since the defendant thus admittedly has retained an amount of Rs. 11536280/- [Rs.93,51,468/ + Signature Not Verified Rs.21,84,812/-] and which is clearly far more than the amount which Digitally Signed By:NEHA Signing Date:28.04.2023 17:38:35 is claimed under the head of the amount of compensation determined as payable by the plaintiff in terms of Clause 2, the Court finds merit in the prayers made for grant of interim injunction and for the defendant being restrained from recovering Rs.96,24,719/- from payments due and payable to the plaintiff under other contracts.
7. Accordingly and for the aforesaid reasons, it is provided that the defendant shall stand restrained from making any recoveries of the amount of Rs. 96,24,719/- from the payments otherwise due and payable to the plaintiff under other contracts.
8. The application shall stand allowed in the aforesaid terms. CS(COMM) 654/2021
1. Let the matter be now placed before the concerned Joint Registrar for completion of pleadings on 22.08.2023.
YASHWANT VARMA, J.
APRIL 28, 2023 bh Signature Not Verified Digitally Signed By:NEHA Signing Date:28.04.2023 17:38:35