Delhi District Court
Rajinder Singh vs . Delhi Development Authority on 5 November, 2007
Rajinder Singh Vs. Delhi Development Authority
CS/517/06/95 (1)
IN THE COURT OF SH. INDERJEET SINGH
ADDL. DISTRICT JUDGE: DELHI
In the matter of :-
Sh. Rajinder Singh,
S/o Sh. Mohan Singh,
Govt. Contractor,
Construction and Suppliers,
RZ-20-A, Raghu Nagar,
New Delhi.
.............Plaintiff.
Versus
Delhi Development Authority,
through its Vice Chairman,
Vikas Sadan, Behind INA Market,
New Delhi-110023.
..............Defendant
Suit No. : 517/06/95
Date of Institution : 31.05.1995
Decision Reserved on : 22.10.2007
Date of Decision : 05.11.2007
Appearance of the Counsels :-
For the Plaintiff : Sh. B. M. Sehgal, Advocate.
For the Defendant : Shri S. D. Sharma, Advocate.
Rajinder Singh Vs. Delhi Development Authority
CS/517/06/95 (2)
JUDGMENT
(On suit for recovery of Rs. 5,00,000/-) 1.1. (Plaintiff's plea) :- Plaintiff Sh. Rajinder Singh is a registered Govt. Contractor, construction and suppliers. He is also registered contractor in category-III of defendant Delhi Development Authority. Vide Tender Notice on PWD Form No. 6 and Press Notice, sealed items rates, tenders were invited for development of land for Dwarka Scheme Phase I in South West of Delhi, SH: Earth filing in 30M R/W Road of Sectorial roads in Sector-19-A by DDA/defendant through Executive Engineer Dwarka Project on 3.6.1991. The N.I.T. had envisaged that tenders were invited by Executive Engineer on behalf of Chairman, DDA from the approved contractors of appropriate class of C.P.W.D, Military Engineers Services, Post and Telegraph and Delhi Development Authority. Since the plaintiff, being registered contractors, offered his rates to do the work. The description of quantities and rates offered by the plaintiff are as follows:-
Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (3) S.No Description of item Quantity Unit Rate
1. Earth work in excavation over areas 6141.23 cum. Rs.13.00 per cum.
exceeding 30 cm in depth, 1.5 in width as well as 10 sqm on plan) including disposal of excavated earth lead upto 50 m and lift upto 1.5m disposed earth to be leveled and neatly dressed.
(a) Soft / loose soil (hereinafter referred as Earth work for the sake of bravity).
2. Carriage of earth by mechanical transport including 6141.23 cum. Rs.35.00 per cum.
Loading unloading dressing etc. complete as per the directions of the Engineer-In-Charge upto 5 km lead (earth measured will be reduced by 5% for payment). (hereinafter referred as Carriage of earth).
3. Banking excavated earth in layers not exceeding 20 cm 6141.23 cum. Rs.11.00 per cum.
in depth breaking clods, watering, rolling each layer with ½ tonne roller, or wooden or steel rammers, and rollings at every 3rd and top most layer with power roller of minimum 8 tonnes and dressing up in embankments for roads flood banks, marginal banks and guide banks, etc. lead upto 50m. (hereinafter referred as Banking excavated earth). 1.2. In terms of agreement, the plaintiff deposited earnest money of Rs. 4,853/- with the Executive Engineer at the time of submissions of tender, the plaintiff had offered the lowest but the defendant considered it on the higher side consequently, negotiation of the rates were proposed. The negotiation of rates took place on 4.07.1991 in the office of Executive Engineer and plaintiff had reduced the rates to Rs. 12.50p per cubic meter (in Paragraph 3 of the plaint, the rate has been referred as Rs. 12/- per cubic meter, but it appears to be a typographical error, since at other places in the plaint, the rate has been referred as Rs. 12.50p per cubic meter, which has also been reflected in the Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (4) agreement, now Ex. PW-1/A containing sheet of negotiated rates), in respect of "Earth Work", to Rs. 32.60p per cubic meter in respect of "Carriage of Earth" and to Rs. 9.60p per cubic meter in respect of "Banking Excavated earth". Hence, the negotiated rates offered by the plaintiff were considered and declared to be the lowest amongst all the tenders and said negotiated offer was accepted by the Executive Engineer Western Division No. 10, DDA Central Nursery, Dwarka Project by his letter No. F.54) (119) A/Wd-10/DDA/91-92/1371 dated 08.07.1991. 1.3 The estimated cost of work was Rs. 1,94,124/-, tender amount was Rs. 3,35,925/- and rates of items converted into percentage of 73.05 above the estimated cost. The work was to be started on 18.7.1991 and stipulated date of completion was 17.9.91 but actual date of completion of work was 20.3.1992. The plaintiff was paid final bill on 8.1.1993.
There was period of two months to complete the work and as per Clause 2 of the agreement, the time was essence of the contract and the contractor was to adhere to the time schedule but because of certain hindrance, work could be completed on 20.3.1992, however, the delay in execution of the work was Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (5) undisputed and admittedly attributable to the defendant. The Executive Engineer, in accordance with the Clause 5 of the agreement, extended the time. A formal approval of extension of time was also obtained from the Superintending Engineer, although it was not necessitated, since Executive Engineer discretion was final and binding. 1.4 The task was performed as per agreement satisfactorily and completion certificate also recorded clear findings that there was no defect apparent and all articles like folding, wood work surplus material was removed and cleaned by the plaintiff. The measurement were recorded in the Measurement book and quality was also checked by the Competent Authority. Thus no obligation, whatsoever was left unperformed within the maintenance period. The removal of defects, if any, and other such obligation after completion of the work were also performed, which was recorded in the Completion Certificate. 1.5 However, prior to finalization of the bill but after completion of the work, the defendant aspired to commit an illegality by wrongfully substituting two items i.e. item no. 1 and item no. 2. Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (6) And by consolidation of the said two items i.e item no. 1 + item no. 2, the defendant alleged to have substituted item, introducing a fresh item [i.e. Earth work in rough excavation banking excavated earth in layer not exceeding 20 cm in depth breaking clods watering rolling each layer with ½ tonne roller or wooden or steel rammer or rolling every 3rd and top most layer with power roller of minimum 8 tonne dressing up in embankment for roads flood banks, marginal banks guide banks or filling up grounds depression lead upto 50m and lift upto 1.5m. (a) soft/loose soil]. Basically, allegations of substitution of items, were not substitution of the items but substitution of rates and this was done illegally and unilaterally by the defendant to gain huge advantage, which was not permissible under the agreement. Whereas, the proper and appropriate method to substitute an item was to do it before the work on item was started. And whereas, the alleged substitution of the item had been proposed on 03.12.1992 after about 8-1/2 months after the completion of work (i.e. on 20.03.1992) and month prior to the finalization of the work (i.e. on 08.01.1993). The clause 12 of the agreement covenants in respect of substitution of an item (paragraph 8 of the plaint reproduced Clause 12 of the agreement). Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (7) Hence, as per agreement not only a written order is a condition precedent but also that such order has to be communicated before start of the items proposed to be substituted, thus the alleged substitution is not permissible under the terms of agreement. There was no written order from Engineer-In-charge prior to execution of both the items. As a matter of fact, the work was done as per original agreement, there cannot be any substitution of the item. In addition, the Engineer-In-Charge was only Competent Authority to make alteration or substitution of the items but defendant's letter dated 16.12.1992 envisaged that substitution was done as per approval of Competent Authority i.e. Superintending Engineer, thus so called approval is without jurisdiction and untenable. 1.6 In addition, the defendant had also done illegalities, while deriving rates for the deviated quantities in respect of item no. 3, "Carriage of Earth", which is in violation of the written agreement and Clause 12A of the agreement. Paragraph 11 of the plaint reproduces Clause 12A of the agreement.
In terms of agreement the items was to be executed to the tune of 6141.23 cubic meter. However, against the stipulated Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (8) quantity but plaintiff was made to execute this item to the tune of 22300 cubic meter. As per clause 12A, the rates were payable for deviated quantity as per market rate. The defendant had calculated the rates payable @ Rs. 34.60p per cubic meter and later on, the basis of sanction from so called Competent Authority/Superintending Engineer, the defendant reduced the rate to Rs. 32.60p per cubic meter and by doing so, the defendant has done the illegality. And whereas, there is no Clause in the agreement for reduction of the rate for an item already executed beyond the deviation is permissible. This action was initiated without a due notice and it is time barred. As per agreement, if reduction of rate is necessitated a proper notice with analysis of rates has to be submitted in advance so that the other one if feel necessary may object to the execution of the items, whereas in the present case reduction of rates has taken place on 03.12.1992 (i.e after 8-1/2 months of actual completion of the work including the items in dispute), which is apparently an illegality on the part of defendants. 1.7 The plaintiff had executed and performed work for Rs. 13,86,589.10p in respect of quantities measured and verified by Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (9) Executive Engineer Western Division No. 10 of defendant as per detailed given below:-
Item No. Particulars of items Qty. of work done Rate payable Amount payable (Cub. mt.) (Rs./p) (Rs./p)
1. Earth work 23304 12.50 2,91,300
2. Banking excavated 23304 9.60 2,23,718.40
3. Carriage of earth
a) qty. payable/original rate 7376.48 32.60 40,245.05
b) deviated qty. payable/cla. 12-A 15,943.52 39.62 6,31,325.68 Total ----------------
13,86,589.10 However, the defendant paid Rs. 3,53,928/- by first running bill, Rs. 4,35,677/- by second running bill (total Rs. 7,89,605/-) but plaintiff claims interest of Rs. 1,07,457.12p @ 24% per annum from the period April 1992 to December 1992 on the remaining amount of Rs. 5,96,984/- (i.e. Rs. 13,86,589.10p - Rs. 7,89,605/-) but later on, final/3rd bill of Rs. 2,52,030/- was paid by the defendant. The plaintiff had sent demand notice for Rs. 4,57,411/- (Rs. 4,52,411/- + Rs. 5,000/- earth carted till beyond 7 km. Lead) for the balance outstanding amount with interest. In the plaint, the plaintiff estimates Rs. 6,17,984/- as an outstanding amount including interest from time to time but in conclusion relief of Rs. 4,58,411/- (however, considering the total claim in the Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (10) plaint based on the demand notice, the principal amount is Rs. 4,52,411/- but by typographical error, the amount has been stated as Rs. 4,58,411/-, in the final discussion on merits, the principal amount of Rs. 4,52,411/- will be considered) plus Rs. 47,589/- as interest has been claimed by abandoning the excess claim. The plaintiff also claims interest, pendent-lite and future @ 24% per annum.
2.1. (Defendant's plea) :- The defendant opposed the suit factually and on other grounds. The suit is barred by time as per the provisions of Delhi Development Act, since final bill/payment was received by the plaintiff vide cheque of dated 26.3.1992 but the suit was filed on 31.5.1995, much after the prescribed period of limitation. Secondly, neither the notice required under the law was served on the defendant nor there is any cause of action in reference to Clause 7 of the agreement, the suit deserves dismissal.
2.2 While putting strict onus on the plaintiff to prove the averments of plaint, the defendant denies that the work was done as per CPWD specification or no defect was apparent. The Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (11) extension of time for completion of work was on the request of plaintiff/contractor.
2.3 While denying the allegations of revision in assignment, it is stated that the items have been revised in view of operation actually carried out or the component of the items executed by the plaintiff. Some of the operation had not been carried out in the agreement items no. 1 and 3, which have been modified by substitution with cost adjustment for the operation not carried out. This was under the Clause 12 of the agreement. In addition the plea of plaintiff is an afterthought plea, since plaintiff/contractor has received final bill with full and final measurement accepted without lodging any protest for dis-allowance or recovery. Further, the allegations of substitution of items on 3.12.1992 is not correct. The item was paid as per operation carried out and during that currency of time plaintiff never raised any dispute but accepted the payment.
2.4 While referring defendants letter dated 16.12.1992 about substitution of item, it has been explained that nowhere name of Superintending Engineer find mentioned. Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (12) The payment of deviated quantity has been made as per terms and condition of contract duly accepted without raising any dispute for dis-allowance/recovery, while accepting the final bill. The actual gross work done was for Rs. 10,42,659/- which stands paid, the work done was not Rs. 13,46,589.40p. The final bill was accepted on 26.03.1992 without any protest and as per Clause 7 of the agreement, the final bill accepted was not disputed within stipulated period 30 days, plaintiff's suit is liable to be dismissed.
3. On 27.07.1996 the following issues emerged for determination:-
1. Whether the plaintiff is entitled to a sum of Rs. 4,58,411/- as principal amount and Rs. 47,589/- as interest from filing of the present suit?OPD
2. Whether the plaintiff is entitled to pendente lite and future interest at the rate of 24% PA?OPP
3. Whether the present suit is liable to be dismissed for want of cause of action as per Clause (7) of agreement?OPD
4. Whether the suit is liable to be dismissed for want of notice?OPD
5. Whether the suit is barred by time under the provisions of Delhi Development Act?OPD Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (13) (There appears to be an omission that nature of Issue No. 1 suggests onus on the plaintiff but it has been reflected, as if, on the defendant, the onus would be on the plaintiff).
4. In order to establish the case, the plaintiff Sh. Rajinder Singh entered into the witness box and deposed as PW-1. Sh. A. K. Sharma Executive Engineer WD-X Dwarka deposed as DW-1 on behalf of defendants.
5. During the course of oral arguments, both the parties have argued in detail and I assessed them in the light of statutory provisions of law and the material on record. Their contentions will also be referred issue-wise, in the following paragraphs. 6.1 ISSUE NO. 5
Whether the suit is barred by time under the provisions of Delhi Development Act?OPD The onus to prove this issue lies on defendants. According to defendant, the Delhi Development Act is a special piece of legislation and there is specific provisions of Limitation in Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (14) Section 53-B of the Act. Section 53-B is also on the point of notice to be given of suits prior to filing of suit. As per sub Section 2 of Section 53-B the prescribed period for filing the suit is six months from the date on which cause of action arises. Although, the Limitation Act, 1963 does not apply because of applicability of sub Section 2 of Section 53-B DD Act but for the purposes of ascertaining the period for computing the cause of action, article 18 of the Schedule suggest that period of cause of action will be from the date the work is done. It is an admitted case of plaintiff (paragraph 5 of the plaint) that the date of completion of work was 20.03.1992 but the suit was filed on 31.05.1995, it is beyond the period of six months, the suit is barred by law of limitation. Whereas according to plaintiff, the period for computation of limitation period will be considered from date of final bill paid on 8.1.1993 and there is period of three years for filling the suit, as it is a case based on agreement Ex. PW-1/A or (Ex. DW-1/1). The dispute regarding outstanding bill came into light after the payment of final bill, therefore, the suit is not barred by period of limitation.
6.2 On assessment, sub section (2) of Section 53-B is in Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (15) respect of suits defined in sub Section (1) of Section 53-B of DD Act and sub Section (1) of Section 53-B of the Act is in respect of matters or acts done or purporting to have been done in pursuance of Delhi Development Act, 1957 or any rule or regulation made thereunder but the present case is based on agreement dated 11.07.1991 Ex. PW1/A (= DW-1/1). Thus the period of limitation for the recovery of amount is not governed by sub section (2) of Section 53-B of Delhi Development Act. Secondly, Article 18 of Schedule appended to the limitation Act 1963 prescribed for computing the time from the date of work done in the eventuality when no time has been fixed for payment but Clause 7 of the agreement depicts Schedule for payment, therefore, the analogy presumed on behalf of defendants is not applicable. The prescribed period for filing the suit is not six months. It is a case for recovery of money in respect of accounts or outstanding amounts based on written contract and there is period of three years for recovery of the money and from the date of final bill dated 08.01.1993 (which was paid on 08.01.1993 by final bill Ex. DW-1/2), the present suit filed on 01.06.1995 is within the prescribed period of three years. The Issue No. 5 is decided against the defendants. Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (16) 6.3. ISSUE NO. 4 Whether the suit is liable to be dismissed for want of notice?OPD The onus to prove this issue also lies on the defendants. In written statement of paragraph 5 the defendant replied plaintiff's plea of notice dated 27.03.1993 U/s 80 CPC r/w Section 55 of DD Act, being matter of record. During the course of arguments, it was stated that the contents of the notice to the effect of claim or name of parties or cause of action or material facts have not been proved. Whereas the plaintiff has proved notice dated 27.5.1993 as Ex. PW-1/B addressed to Vice Chairman of the defendant by postal receipt, UPC and AD Card (EX. PW-1/C) in respect of notice, have also been proved, therefore, the defendants objections merely remained a projection in the pleadings but plaintiff has succeeded to prove that a prior notice was sent and served on the defendants. The details given the plaint are based on the contents of the notice, in respect of claim or relief or averment of cause of action. The defendants failed to prove Issue No. 4, therefore, it is decided against them. Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (17) 6.4. ISSUES NO. 1, 2 and 3
1. Whether the plaintiff is entitled to a sum of Rs. 4,58,411/- as principal amount and Rs. 47,589/- as interest from filing of the present suit?OPP
2. Whether the plaintiff is entitled to pendente lite and future interest at the rate of 24% PA?OPP
3. Whether the present suit is liable to be dismissed for want of cause of action as per Clause (7) of agreement?OPD The onus to prove Issues No. 1 and 2 lies on the plaintiff but Issue No. 3 is to be proved by the defendants. The Issues No. 1, 2 and 3 are taken together, since they are overlapping each other and they also involved common discussion.
According to the defendants, the measurement made and bill was paid and it was accepted by the plaintiff in the form of the first running bill, the second running bill and the third/final running bill. No dispute was left, the plaintiff intends to enrich himself at the cost of the defendants. The present suit is based on misrepresentation and the plaintiff's conduct can be gathered from the record. There was total bill of Rs. 10,42,659/- and it stands paid. Further, Clauses 7, 12 and 12A of the agreement are relevant for the purposes of adjudication of the dispute. As Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (18) per Clause 7 of the agreement, the plaintiff was required to protest the disputed items within the period of 30 days from dis- allowance but the plaintiff failed to make any protest in this regard and in terms of Clause 7, the claim stands waived and extinguished. Secondly, so far substituted items are concerned, they are governed by Clause 12 of the agreement and not Clause 12A of the agreement. Clause 12(vi)(d) pertains to the item of road like all items of excavation and filling including treatment of sub-base and soiling work and in the eventuality of additional altered or substituted work, the same has to be carried by the contractor and there is a discretion to allow the rates as embodied in Clause 12 of the agreement itself. The substituted item statement No. 1 (Ex. DW-1/P-6) is the record of actual unit performed and sanctioned by the Superintending Engineer C-13, in terms of Clause 12 of the agreement. As per Clause 12(v) of the agreement, provides that the contractor shall within the seven days of the receipt to carry out the work, inform the Engineer-In- Charge of the rate which it is his intention to charge for such class of work, supported by analysis of rate of rates but no such option was exercised by the plaintiff/contractor and he underwent the task and finally the payment was made by the third/final bill. Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (19) The plaintiff tried to bring the circumstances under Clause 12A of the agreement but feature of the present case does not fall under Clause 12A of the agreement. The defendant had also proved the acceptance of the final bill (Ex. DW-1/P-8) (Page 4 rectangled in colour red) about the acceptance of the bill and measurement, besides the site order book dated 12.07.1991 (Ex DW-1/3) that the plaintiff was served with the instructions to carry the assignment and at this juncture, it cannot be protested that the assignment was given after the completion of work. There is no substance in the submission of the plaintiff and there is no cause of action, Issue No. 3 is to be decided in favour of the defendant and Issues No. 1 and 2 are required to be decided against the plaintiff by dismissing the suit.
Whereas, according to the plaintiff, the Agreement (Ex. PW-1/A) is a bilateral contract and the DDA cannot act unilaterally by reduction in the rates of work. There are Delhi Analysis Rate and Delhi Schedule Rate, which are also being followed by CPWD, MCD, NDMC, local bodies in Delhi. As per the Clause 7 and 12 of the agreement, Engineer-In-Charge is the competent authority and it is the requirement of the contract to inform in writing in advance about the substituted items but the Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (20) defendant without any notice or consent to the plaintiff, substituted the fresh item for agreed items No. 1 and 2 and also the rate was reduced, which is not only against the spirit of the bilateral agreement or Clause 12 of the agreement but also substituted items were made by unilateral act. The substituted item statement No. 1 (Ex. DW-1/P-6) is apparent that the same was done on 03.12.1992 after completion of work on 20.03.1992. Therefore, it cannot change or alter the basic features of the agreement by unilateral act nor it can be termed as a substituted item, since the assignment was not directed or entered prior to the beginning of the work. In addition, there is no written notice by competent authority/Engineer-In-Charge nor the statement (Ex. DW-1/P-6) bears such sanctioned by the Engineer-In- Charge, therefore, act of the defendant are erroneous and contrary to the provisions of the agreement. So far the receipt of the bill is concerned, it does not amount to the consent of receipt of the entire amount, since the plaintiff, alike other contractor, would not refuse the payment and to put the outstanding amount in the category of withheld amount. The acceptance of bill amount does not amount to the acceptance of correctness of final bill.
Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (21) Clause 12A of the agreement is applicable that in the eventuality of additional work of carriage of earth work, there should be a notice in writing about the deviated work and rates are to be derived in terms of agreement. The defendant has no explanation as to why the rates have been reduced, as in the bill itself, firstly, the amount was allowed as per the agreed rate but then the corrections were carried by reducing the rate but without an explanation. The plaintiff had protested the action of the defendant immediately and it cannot be termed that the dispute stands waived or extinguished. There is a cause of action and the plaintiff is entitled for the relief claimed. 6.4(a). After considering the rival contentions in the light of documents on record and the statement of the witnesses, I have come to the conclusion that there is a cause of action in favour of the plaintiff, suit is not without cause of action, pursuant to the Clause 7 of the agreement and Issue No. 3 is decided against the defendants and Issues No. 1 and 2 are decided in favour of the plaintiff, while holding that the Clause 12A of the agreement is applicable in respect of "Carriage of Earth Work" for the following Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (22) reasons :-
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Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (27)
7. Relief In view of my findings on various issues, the plaintiff's Suit for a sum of Rs. 5,00,000/- along with an interest @ 21% per annum from the date of suit till its realization, coupled with the cost of the suit is decreed in favour of the plaintiff and against the defendants.
Decree sheet be drawn accordingly.
File is consigned to Record Room.
Announced in Open Court (INDER JEET SINGH) on 05.11.2007 Additional District Judge Delhi Rajinder Singh Vs. Delhi Development Authority CS/517/06/95 (28) ÀFÁ,Â7Ã,ÃgÂÄ ÀÀFÅ Æ Ç?ÈÉ È Ê,Ë Ì Í!Î&ÏÐgÑ@Ò&ÓcѸÔ5Î=Õ\ÖÎ1×"ØK×¢Ø9ÒÑ?Ù/ÚdÒ Ñ Û Ü\Ù/ÚdÒeÑ?Ò ÝÞ=Õ@Þ*×+Ò~ßOÏgÚdà áEÒ=Ð ×"â the plaintiff's Suit for a sum of Rs. 5,00,000/- along with an interest @ 21% per annum from the date of suit till its realization, coupled with the cost of the suit is decreed in favour of the plaintiff and against the defendants.
Decree sheet be drawn accordingly.
File is consigned to Record Room.
N (INDER JEET SINGH) Additional District Judge Delhi