Delhi District Court
M/S Pride Constructions vs Delhi Development Authority on 23 August, 2017
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Civil Suit No. 4/17/98
Civil DJ- 8271/16
M/s Pride Constructions
C-3/12, Krishan Nagar,
Delhi -110051
through Shri D.K. Nijhawan
Partner
..........Plaintiff
Vs.
1. Delhi Development Authority,
through
The Vice Chairman, DDA
Vikas Sadan, Behind I.N.A. Market,
New Delhi-110023
2. The Executive Engineer,
Western Division No. 10,
DDA Dwarka Project,
Mangla Puri,
New Delhi-110045
......Defendant
Date of institution of the case : 05.05.1998
Date reserved for judgment on : 01.08.2017
Date of pronouncement of judgment: 23.08.2017
JUDGMENT:
1 A suit for recovery of Rs. 5,00,000/- alongwith court fees of Rs. 7225 has been filed.
CS No. 4/17/98 Pride Constructions Vs DDA 1/29 2 In brief the facts are that the plaintiff M/s Pride Construction is a Partnership firm duly registered under Indian Partnership Act. Shri Davinder Kumar Nijawan and Sh. Prithwi Raj Miglani are the partners of the firm and in such capacity both of them are competent to sign, verify and file the present suit.
3 It is stated that plaintiff firm is government contractor duly registered with C.P.W.D and Delhi Development Authority. The Executive Engineer, Wester Division No. 10, DDA vide a "
Press Tender" invited the " sealed item rate tenders" on behalf of Delhi Development Authority, from the approved contractors of appropriate Class in DDA, C.P.W.D; MES and P & T upto 3 .00 p.m. on 28.7.93. The plaintiff firm being a registered contractor of Defendant requested for the issuance of tender form. After the due verification of records etc, the plaintiff firm was issued with a tender form.
4 The rates offered thereafter by the plaintiff firm were the lowest among all the contractors, consequently the offer made by the plaintiff firm was duly accepted by the said executive Engineer, Western Division No. 10, Delhi Development Authority, vide his letter No. 54(9)/WD-10/A/93-94/1599 dated 4.11.1993. A formal Agreement bearing No. 19/EE/WD- 10/DDA/93-94 dated 4.11.93 was also executed between the parties in relation thereto 5 Thereafter plaintiff mentioned in the plaint the vital fact and vital dates of contract in disputed as under:-
(i) Name of Work : " D/o land at Dwarka ( PPK) Project in South West of Delhi CS No. 4/17/98 Pride Constructions Vs DDA 2/29 SH: Providing and fixing Grill Fencing Around Distt. Park in Sector No. 19-A in Agreement No. 19/EE/WD-10/DDA/93-94
(ii) Date of application and its receipt : 05.09.93
(iii) Date of issue of tender form for the work in disputed :
06.09.93
(iv) Date of opening of tenders: 06.09.93
(v) Date of negotiation of rates: 19.10.93
(vi) Date of acceptance or rates offered by the plaintiff firm:
04.11.93
(vii) Date of signing of formal agreement : 11.11.93
(viii) date of start of work : 14.11.93
(ix) Stipulated date of completion: 13.05.1994
(x) Time allowed to complete the work: 6 months
(xi) Actual date of completion: 24.04.1997
(xii) Date of payment of final : 23.11.1997
(xiii) Estimated cost of work in dispute: Rs.26,30,064/- ( Rupees Twenty Six Lac Thirty Thousand Sixty Four only).
(xiv) Quoted tendered: 27.51% ( Twenty Seven decimal five one) percent above the rates quoted.
(xv) Tendered amount of the work in dispute: Rs. 33,57,756/-
(Rupees thirty three lac fifty seven thousand seven hundred fifty six).
(xvi) Total delay in completion of work: 1167 days 6 It is stated that in order to complete the work within stipulated period of six months, plaintiff firm, allocated all its resources and procured huge material at site of work. This defined procured material has been incorporated in agreement to be utilised for the execution of work. Apart from it the plaintiff CS No. 4/17/98 Pride Constructions Vs DDA 3/29 firm arranged T & P, employed the Engineer and other salaried staff like Munshi, chowkidars etc. This fact of allocation of resources and employment of staff etc. was reduced into black and white in the letters duly posted and delivered to the Executive Engineer, Western Division No. 10 of defendant. That one of items of providing square pipes of 50x50x2 mm stipulated to be used in the execution of item no. 11 of the agreement was not readily available in the market. Consequently a request was made reacted very sharply and directed the stoppage of all works, more specifically the agreement items of fixation of grills being very costly item. As a sequel to this direction explained hereinabove the defendant posted a letter bearing No. PA (15)/91/SE-13/DDA/2406 dated 17, 22 January, 1994 whereby the Executive Engineer, Western Division No. 10, Delhi Development Authority had instructed the plaintiff firm to stop the work instantaneously and remove the grills already fixed at site of work. Even though the directions of the Executive Engineer, were against the spirit of terms of Agreement, still the plaintiff firm had no option but to stop the work and remove the grills already fixed because there was no possibility to go ahead with work unless defendant co-operates and issues stipulated materials such as cement etc. and prays for the work done by the plaintiff firm.
7 It is stated that entire work done by the plaintiff firm was to the satisfaction and instructions of defendant. Still due to the aforesaid mentioned reasons the grills already fixed as got dis mentalled and shifted to store of the plaintiff firm. The plaintiff firm accordingly informed the defendant about the stoppage and dis mentlling of grills and losses caused due to the CS No. 4/17/98 Pride Constructions Vs DDA 4/29 stoppage and due to the non-execution of the work and if the work is not permitted to be completed within reasonable time the plaintiff firm shall further suffer unprecedented losses. The plaintiff also informed the defendant about the huge quantity of grills got fabricated. The grill got fabricated and brought to the site of work was 28 M.T. The cost of this grills procured at site was approximately Rs. 5 lac.
8 It is stated that defendant was further made conversant that in addition to above ( material which was already brought to the site of work) the order was placed for the fabrication of 10 M.T. more grills as the site of work was theft prone therefore, to protect the procured material it was proposed to be taken over by the defendant or in alternatively the plaintiff be permitted to be fixed it near group housing scheme, was comparatively safer.
9 The suggestion was further made to the defendant to take over material in accordance with clause 13 of the agreement but it was also not acceptable to defendant. The plaintiff firm further requested the defendant to pay him the secured advance as per provision of clause 10 (B) of the agreement but defendant was reluctant to adhere to the terms of agreement to provide secured advance against already procured material when the work remained un-commenced for a long time and the losses were mounting up the plaintiff firm. The another problem which was created at site was by another contractor who was executing the work of laying of sewer lines by demolishing the boundary wall at number of places and dumping huge quantity of earth on the boundary wall, which duly CS No. 4/17/98 Pride Constructions Vs DDA 5/29 constructed by the plaintiff firm. The plaintiff firm as a protest wrote number-less letters to the defendant but the defendant turned a deaf to it and initiated no action against the defaulting contractor to solve the problem explained hereinabove. The numberless letters were written by plaintiff firm remained unrebutted, therefore, the contents are deemed to be admitted by defendant.
10 It is stated that after about four months of stoppage of the work the Executive Engineer, Western Division No. 10, DDA of defendant all of a sudden instructed the plaintiff firm vide letter bearing no. F.54(9)/EE/WD-10/A/93-94/367 dated 4.5.94 to resume execution of work immediately. The period during which the work remained suspended there was an unprecedented increase in prices of steel and other material incorporated to be used in agreement. The plaintiff firm, therefore, requested the defendant that if it was interested in execution of work through plaintiff firm than the plaintiff firm must be paid on higher rates i.e as per prevailing market rates i.e the plaintiff firm was entitled to the additional cost incurred by him due to the increase in market rages.
11 It is stated that in response to it the Executive Engineer admitted the increase in price of material and further made an affirmative response to demand of additional cost to be paid to the plaintiff firm consequently on this assurance the plaintiff firm delivered a letter wherein the extra and unprecedented increase in the rates of steel was reflected. The plaintiff firm delivered his letter dated 19.1.1994, the copy of the said letter was duly endorsed to Superintending Engineer of the CS No. 4/17/98 Pride Constructions Vs DDA 6/29 Circle. The extra cost which was assured by the defendant has not been paid till dated. The defendant has resiled from paying it on the frivolous ground that unless another work of similar nature, which was awarded to the plaintiff by EE Western Division No. 9 DDA is resumed no payment shall be made even for the work already executed by the plaintiff under the agreement in dispute. The additional cost incurred which was assured before the resumption of the work now refused on the ground that it has no concern with work under dispute.
12 It is stated that defendant in order to further harass plaintiff firm adopted the coercive methods and served number of show cause notices dated 29.11.94. 17.07.1995, 21.07.1995, 04.09.1996 containing the threats of penal action under the penal clause of agreement.
13 It is stated that due to the reasons explained defendant did not take any action to pay the additional and extra cost and had also recorded 24.4.1997 as date of completion of work. It was also assured by the defendant that the statutory increase in cost of material as well as increase the wages shall be reimburse under the provision of 10 ( C) of the Agreement and alleged that the delay is the execution of work was attributable to the plaintiff firm thereby resiled back to the earlier promises of reimbursement of additional cost incurred by plaintiff firm thereby the defendant had committed a serious breach to the contract.
14 The perusal of the facts after the resumption of work would show that entire delay in the execution of work during this CS No. 4/17/98 Pride Constructions Vs DDA 7/29 period was also due to negligence and non fulfillment of reciprocal promises on the part of defendant. Due to explained problems the plaintiff form was denied the provision of complete site to complete the work in terms of agreement consequently the work got delayed and the plaintiff firm was forced to complete the entire work. The various reasons for delay and various breaches committed by the defendant are detailed as under:-
(i) Non availability of entire site (ii) Shortage of cement;
(iii) the defendant shifted the site of boundary wall but no reason for it was given;
(iv) non provision of decision of stone pillars: and
(v) most formidable is the stoppage of work by the Vice-
Chairman. DDA
(vi) Damage of Boundary Wall and removal of earth belatedly by the defendant.
15 It is stated that as the entire delay in the execution of work was attributable to the defendant, the plaintiff form was entitled to extension of time without the levy of compensation, to be paid extra cost for the increase in rates of steel and was also entitled to receive the statutory increase as per clause 10 (c). The defendant in order to deny the payment adopted an erroneous method and motivatedly levied a compensation of Rs. 78,902/- under clause 2 of the agreement. As the time ceases to be essence of the contract, the superintending Engineer had no jurisdiction under clause 2 of the agreement to levy the compensation. The action initiated by the Superintending Engineer was thus without jurisdiction, unlawful, illegal and CS No. 4/17/98 Pride Constructions Vs DDA 8/29 erroneous and no action under clause 2 of the agreement was tenable because entire delay in the execution of work was attributable to the defendant.
16 It is stated that thereafter a final bill was prepared by the defendant but when the payment was released it was observed that defendant has unlawfully refused the release the payment unless plaintiff firm was ready and willing to make a statement that so called final bill prepared by the defendant was acceptable to him in full and final settlement of all his claim. As huge amount of plaintiff firm was got blocked with defendant consequently he had no other option but to make a statement that measurements and bill were acceptable to him otherwise huge money in the shape of final bill and security deposit would be at a stake. The statement thus obtained from the plaintiff firm with threat of seizure and non payment of huge amount was highly and strongly coercive in nature because the will of the plaintiff firm was not free while making the statement.
17 It is stated that plaintiff has served the defendant with a notice under Section 53 B of Delhi Development Act calling upon to pay the following amount within 62 days of receipt of notice to the plaintiff firm. The defendant had only paid a sum of Rs. 60,035/- vide a cheque no. 214507 dated 21.03.98 but not paid any further amount till.
18 The plaintiff claimed a sum of Rs. 58,000/- withheld on the two accounts namely Rs. 50,000/- for the grant of extension of time and another Rs. 8,000/- for the quality control. The defendant however, paid a sum of Rs. 60,035/- vide a CS No. 4/17/98 Pride Constructions Vs DDA 9/29 cheque No. 214507 dated 21.03.1998. This claim therefore, being satisfactory paid deemed to be withdrawn.
19 It is stated defendant had further made deduction of the rates of number of items unilaterally, unlawfully and illegally. These reduction/deduction are reflected in the final bill. The part of these items have also been released at this portion of claim, therefore, also withdrawn.It is stated that the compensation levied to terrorize the plaintiff firm. Neither the defendant had suffered a loss nor had proved it. Otherwise also the action of Superintending Engineer was erroneous in nature because every delay in the execution of work was attributed to the defendant.
20 It is stated that plaintiff was forced to incur extra expenditure on the purchase of steel and before procuring it he had informed the defendant that the extra cost the plaintiff firm was made to spent on the procurement of steel was Rs. 1,71,000/-. The plaintiff to justify his claim also submitted analysis of rates vide letter dated 9.6.94.
21 The plaintiff further claim Rs. 2,66,344/- on account of clause 10 (c) of the Agreement, cost of proceedings amounting to Rs. 20,000/- and the total amount payable to the plaintiff firm is amounting to Rs. 5,36,846/-, however, claim confined to Rs. 5 lac thus the Hon'ble court has got pecuniary jurisdiction to try the suit. And finally plaintiff seeks money decree for Rs. 5,00,000/-,cost of the suit, interest pendentalite and future interest and any other further relief.
CS No. 4/17/98 Pride Constructions Vs DDA 10/29 22 Defendant, DDA file written statement and taken preliminary objection that suit is barred by time, not maintainable and is liable to be dismissed as there is no cause of action in favour of the plaintiff and against the defendant.
23 On merit contents of para 1 to 3 of the plaint are admitted. The Para No. 4 of the plaint is denied and stated that plaintiff be put to strict proof as regards the allocation of the resources and procurement of huge quantity of material at site of work as alleged. It is admitted that plaintiff also employed one Engineer, but the defendant is not aware regarding the employment of other salaried staff like Munshi, chowkidar etc. It is denied that one item of providing square pipes of 50x50x2 mm stipulated to be used in the execution of item no. 11 of the agreement was not readily available in the market. It is denied that any request was made by the defendant. However, it is admitted that the work regarding fixation of grills was only stopped by the defendant vide its letter bearing No. PA(15)/91/SE-13/DDA/2406 dated 17.01.1994 in accordance with the instructions of the Vice-Chairman of DDA. However, there is no direction regarding stoppage of boundary walls.
24 It is stated that no grills had been fixed by the plaintiff at the site of work by the time the plaintiff was directed to stop the fixation of grills. Therefore, no question of directing the plaintiff to remove the grills. It is denied that fixation of grill work and other work done was conforming to the specifications. Since no grill work was done by the plaintiff, the plaintiff is not entitled to receive the payment against it. And all the contents of the plaint are denied.
CS No. 4/17/98 Pride Constructions Vs DDA 11/29 25 It is admitted that plaintiff firm however, informed the defendant that it had got manufactured 28 MT grills and brought the same to the site. However, on inspection by the concerned A.E at the site it was found that only 5.5. MT grills were lying on the site of work instead of 28 MT grills. Accordingly, the plaintiff firm was informed vide letter dated 04.02.1994 and requested in the said letter that it may verify the position regarding the availability of the grills at the site. The remaining contents of the plaint regarding cost of the grills procured at the site was five lacs, additional material, order for fabrication of 10 MT grills are denied. It is stated that request of the plaintiff regarding the transfer of material from the site could not be acceded to being tenable, because the work regarding grill fencing had already been stopped. Moreover the plaintiff was informed that the fencing of grills which had been stopped. Clause 13 of the agreement is not applicable to the circumstances of the case.
26 It is stated that formalities required under the aforesaid clause were never fulfilled and the defendant never brought such quantity of fabricated grills, as stated above, hence the question of secured advance payment does not arise. The boundary wall at certain places by the contractor who was laying sewer lines was got repaired by the defendant at its own cost and denied the other allegations made by the plaintiff regarding unsafe and dumping huge quantity of earth etc. 27 It is admitted that plaintiff was instructed by the defendant vide its letter dated 04.05.1994 to resume the work immediately, however, it is denied that there was an unprecedented increase in prices of steel and other material as CS No. 4/17/98 Pride Constructions Vs DDA 12/29 incorporated in the agreement during the period when the work remained suspended. The defendant informed the plaintiff vide its letter dated 22.06.94 that necessary extension of time shall be considered for execution of the work while finalizing the extension of time. Regarding the extra costs for steel work and controlled product, it was informed by the defendant that the same shall be paid to the plaintiff as per the terms and conditions of the agreement covered by the clause 10 C. The plaintiff was also assured that the payment shall be made in terms of the agreement only.
28 It is stated that plaintiff firm is not entitled to any extra cost because it did not complete the other work regarding boundary walls. The defendant further denied all the contents of the plaint and stated that it is correct that the recorded date of completion of work is 24.04.1997. It is denied that whatever delay in the execution of the work was on the part of the defendant, the same has been accepted by the defendant. Reimbursement under clause 10-C was denied because the work allotted had not been completed within the stipulated period. Payment under this clause is not admissible if extension of time is granted by the competent authority (S.E) without compensation. The completion of work was delayed by the plaintiff firm upto 1077 days against the justified delay of 416 days which includes the period for which the execution of work was got stopped.
29 It is further stated that plaintiff firm was duly compensated for reasons of delay to the extent of 416 days, which was justified. It is also denied that the plaintiff was entitled CS No. 4/17/98 Pride Constructions Vs DDA 13/29 to extension of time without the levy of compensation because the execution of work was further delayed by the plaintiff firm. The compensation of Rs. 78,902/- was rightly and justly, levied, as per permissible under the agreement.
30 It is stated that claim no. 1 & 2 have been withdrawn by the plaintiff firm and as such need no comments. In respect of claim No. 3 it is stated that the compensation levied by the defendant is either terrorem in nature or motivatedly levied to terrorise the plaintiff firm. The claim no. 4 is untenable. It is denied that there was prolonged delay on the part of the defendant or that the plaintiff was forced to incur extra expenditure on the purchase of the steel. In respect of claim no. 5 it is stated that a claim is admissible subject to the fulfillment of the terms and conditions of clause 10-C of the agreement if the work is completed on time of the extension of time is decided by the competent authority without levy of compensation. In the instant case both the issues are contrary to the above requirements as E.O.T has been decided with penalty and other required conditions of clause 10-C has not been fulfilled.
31 In respect of claim -6 it is stated that as the final payment in respect of the work in question has been made to the plaintiff as per the terms and conditions of the agreement and the same has been accepted by it in full and final settlement, nothing is payable to the defendant beyond that. The contents of remaining plaint also denied. Defendant/DDA stated that plaintiff is not entitled to the decree of any amount, cost of suit, interest, pendentelite or future interest and plaintiff is not tnetitled to any further relief.
CS No. 4/17/98 Pride Constructions Vs DDA 14/29 32 Plaintiff filed replication to the written statement filed on behalf of defendant/DDA and denied the all the objections taken in the written statement and reiterated the averment mentioned in the plaint.
33 On the pleading of the parties following preliminary issues were framed by my Ld. Predecessor vide order dated 21.03.2003:-
1. Whether the suit of the plaintiff is within limitation ? OPP
2. Whether the notice under section 53 B of D.D. Act has not been served by the plaintiff on the defendant, if so, its effect? OPD
3. Whether the plaintiff is guilty of committing breach of contract, if so, its effects? OPP
4. Whether the defendant is guilty of committing breach of contract, if so, its effects? OPD
5. Whether the plaintiff is entitled to the amount, as claimed in the plaint? OPP
6. Relief 34 Plaintiff in order to prove its case examined Sh.
Devender Kumar Nijhavan who tendered his evidence by way of affidavit Ex. PA and proved the documents i.e. office copy of the notice under order 12 rule 6 CPC served upon the defendant as Ex. PW-1/1 and the postal receipt as Ex. PW-1/2. He further proved the letters written to the DDA by the plaintiff for test report, issued by DSIDC and the correspondence between the parties as Ex. PW-1/3 to Ex. PW-1/45.
CS No. 4/17/98 Pride Constructions Vs DDA 15/29 35 In the cross-examination he deposed that he has not placed on record the copy of the partnership deed of M/s Pride Constructions. The work was to be started within 10 days of the letter of award. The time for completion of work was 5 months. The work was not completed within the stipulated period. As far as he know the work was completed in about 39 months. He denied the suggestion that delay of just 416 days was justifiable. However, he was given the benefit of delay of 416 days. He denied the suggestion that levy of penalty/compensation udner clause 2 of the agreement was not challengable in the court of law or that the decision of the S.E was the final.
36 In further cross-examination he admitted that he had accepted the final bill. He had also accepted the measurement made by the respondent ( DDA) in respect of work carried out by him. He is not able to trace the letter dated 17.01.1994 received by him from the Executive Engineer asking him to stop the work. He had informed the defendant that he stored the grills measuring 28 metric tonnes at the site. He denied the suggestion that officials of the DDA had inspected the site and found that only 6 metric tonnes of grills had been stacked at the site.
37 In further cross-examination he deposed that he had received the letter dated 4.2.94 Ex. PW1/D1 FROM THE Executive Engineer. He admitted the suggestion that he had not filed any bill regarding fabrication of the grills at the time of filing this suit. He had sought extension of time from the defendant to compete the work. He voluntarily deposed that initially several extensions were given by the DDA of its own without asking. He admitted CS No. 4/17/98 Pride Constructions Vs DDA 16/29 that the extension which he had sought in the end was granted to him on levy of penalty. He admitted that Superintendent Engineer had levied a penalty of Rs. 78,902/- upon him. This penalty was enforced after giving him a show cause notice. However he was not given a hearing but he had given reply to the show cause notice.
38 In further cross-examination he admitted that extension of time for completing the work was granted to him without levy of any penalty. The work was awarded in November, 1993. It was to be started after ten days. He had granted five months time to compete the work. Some of the extensions were granted with levy of some penalty. He had written letters to the defendant to taken possession of the grill and to keep it in their store, but they refused to take the possession. The said letters are Ex. PW-1/7 to Ex. PW-1/9.
39 He further deposed that he had received letter Ex. PW-1/D1, letter dated 8.2.94 Ex. PW-1/D2, letter dated 06.06.96 as Ex. PW-1/D3, letter dated 20.8.96 as Ex. PW-1/D4, dated 04.09.97 as Ex. PW-1/D5, dated 13.11.97 as Ex. PW-1/D6, dated 17.1.94 as Ex. PW1/D7, dated 10.06.93 as Ex. PW-1/D8 and letter dated 12.01.94 as Ex. PW-1/D9. He deposed that he had not lodged any FIR in regard to the theft at the site. He admitted the suggestion that Superintendent Engineer has levied penalty of 3% under clause 2 of the agreement. He denied the suggestion that the work was not completed in terms of the agreement. He has not given any supplementary bill for the extra/higher rates. He had submitted a bill in regard to clause 10 (c) of the agreement in his claim. The said bill is not in this file. He denied CS No. 4/17/98 Pride Constructions Vs DDA 17/29 the suggestion that he has not submitted that bill. He also denied the suggestion that he had received full payment in respect of the work done by him. He admitted that at the time of receiving the final payment he has not made any protest. He voluntarily deposed that he had written letters to the defendant to make payment in respect of Clause 10 ( C) before submitting the final bill. He denied the suggestion that his claim is false and nothing is recoverable from the defendant.
40 Vide separate statement of ld. Counsel for the plaintiff, evidence on behalf of plaintiff was closed on 31.05.2005.
41 On behalf of defendant, DDA Shri Gurmukh Bhatia, Executive Engineer appeared as DW-1 and tendered his evidence by way of affidavit Ex. R-1 and rely upon the documents Ex. DW- 1/1 to Ex. DW-1/9.
42 In the cross-examination he admitted the suggestion that his affidavit Ex. R-1 and its contents are based on the information derived by him from the official record. He has placed on record the relevant record on the judicial file which is already exhibited as Ex. DW-1/1 to Ex. DW-1/9. He admitted that in the judicial file there is an affidavit of Karan Singh, Executive Engineer and the same is Ex. DW-1/P1 and it is also correct that his affidavit Ex. R-1 is ditto copy of affidavit of Ex. DW-1/p-1, except the name and date portion. He denied the suggestion that he has not perused the record or he copied affidavit Ex. DW-1/P-
1. 43 In further cross-examination he deposed that time will always remain essence of the contract despite such clauses CS No. 4/17/98 Pride Constructions Vs DDA 18/29 mentioned in para 4 of his affidavit Ex. R-1. He deposed that Executive Engineer can extend the time provisionally. It is not necessary as per clause 2 of the agreement that the superintending engineer is competent to levy the compensation only if it is recommended by the executive engineer that the delay is on the part of the contract.
44 He further deposed that the contact was never rescinded by DDA/defendant. He denied the suggestion that the delay was exclusively attributed on the part of the DDA. The total delay on the part of DDA is of 416 days out of 1077 days. The balance days were delayed on the part of the plaintiff. There was no such period of delay, which was not considered by the DDA. He admitted that extension of time i.e. Ex. DW-1/8A contains an error in calculation instead of 354 days an extension of 56 days was given. The extension, however, recommended for 56 days was given.
45 In further cross-examination he deposed that DDA has suffered losses because of delay on the part of the contractor. The losses occurred in the form of salary to the work charge staff for this delay. These losses were never communicated to the contractor. No notice was given to the contractor. He denied the suggestion that if the delay as detailed in calculation error is added up to the period granted by the SE, the delay shall still remain on the part of the contractor. The plaintiff was instructed not to execute the work of fixing of grill only for certain period as per the directions of Vice-Charirman, DDA. He has no knowledge that the instructions were issued as the area was theft prone area. The contractor could have executed other work than the fixation of the grill.
CS No. 4/17/98 Pride Constructions Vs DDA 19/29 46 He further deposed that the agreement between the parties is Ex. DW-1/P2. He admitted that the plaintiff has not claimed extra as is specified in condition No. 8. He admitted that plaintiff contractor has not refused the additional/extra work in terms of Clause 12 of the agreement Ex. DW-1/P-2. He admitted that plaintiff contract had not abandoned the work or left the work incomplete. He denied the suggestion that clause 13 of the agreement has been unnecessarily referred in paragraph 8 of his affidavit. He admitted the suggestion that the actual date of completion of the work was 24.04.1997. He further admitted the suggestion that SE had given the notice under clause 2 on 19.09.1997. He admitted that action under clause 2 was initiated on 27.10.1997. He deposed that they have no information that after getting the work stop there was hike in the steel prices.
47 He further deposed that plaintiff had not apprised them any information that there was a hike in the steel price or they would make extra claim on such account. He denied the suggestion that plaintiff is entitled for various payments under clause 10 C of the agreement. He voluntarily deposed that neither the plaintiff had given them any voucher to this effect and in the eventuality of 10% increase of prices during the currency of work, the clause 10 C is attached, subject to the approval of SE. He denied the suggestion that levy of compensation of 3% was imposed on the contractor to prevent the contractor from availing the benefit from clause 10 C. At present it is not in his knowledge that the compensation was levied on the contractor for non-furnishing labour report under clause 19g of the agreement. He cannot admit or deny, as he is CS No. 4/17/98 Pride Constructions Vs DDA 20/29 not recollecting the fact, at this stage, that no compensation under clause 19 g was imposed on the contractor. He denied the suggestion that he is avoiding the answer of the preceding question or suppressing the answer intentionally, or he has full knowledge about the employment of contract labour at the site. He denied the suggestion that he had not perused the record or that is why he is deposing so with regard to the labour employed.
48 It is pertinent to mention here that one affidavit of Sh. Karan Singh, Executive Engineer also filed on record on behalf of DDA but he has not been examined in the court.
49 I have heard Sh. B.M. Sehgal counsel for the plaintiff and gone through the written submissions filed on behalf of plaintiff. I have also heard Sh. S.G. Asthana proxy counsel for Sh. Sanjay Sharma, counsel for the DDA and perused the record.
50 Ld. Counsel for the plaintiff Sh. B.M. Sehgal relied upon the judgment in Hydel Construction Ltd. Vs V.H.P State Electricity Board, AIR 2000 Himachal Padesh 19, Consulting Engineering Services ( India) Ltd,. Vs Department of Agriculture & Co-operation 2002 (2) RAJ 561 ( Del.), Hind Construction Contractors Vs State of Maharashtra AIR 1979 SC 720, Maula Bux Vs. Union of India, AIR 1955 SC 928, State of Rajasthan Vs Chandra Mohan Chopra AIR 1971 Rajasthan 229, State of U.P. Vs Chandra Gupta & Co. AIR 1977 ALL 28, Hindustan Petroleum Corporation Ltd. Vs Offshore Infrastructure Ltd, AIR 2016(2) RAJ. 560 (Bom.), Vishwanath Sood Vs UOI, AIR, 1989 SC 952, A.T. Brij Paul Singh and Bros. Vs State of Gujarat AIR 1984 SC 1703, Dwaraka Das Vs State of M.P. 1993 (3) Arb. LR291 ( SC), P.C CS No. 4/17/98 Pride Constructions Vs DDA 21/29 Sharma Vs DDA 1998 (2) RAJ 336 (D), Mohd Salamtullah Vs Govt. of A.P. AIR 1977 SC 1481, EN Veeka Construction Co. Vs DDA 1999(1) Arb. LR 298.
51 Findings on issues is as follow:-
Issue no. 1 & 2 The issue no. 1 & 2 are taken together as which are inter-connected. The onus of issues no. 1 is on the plaintiff and issue no. 2 is on the defendant. The issue no. 1 has been framed on the plea taken in the written statement of defendant that present suit is barred by time. As per record the contract for "Work of providing fixing Grill Fencing Around District Park in Sector No. 19-A was awarded on 04.11.1993 and agreement was signed on 11.11.1993. The date of completion was six months but actually work was completed on 24.04.1997. The final payment was made on 23.11.1997. The present suit filed on 20.04.1998. The notice under Section 53-B of DDA Act served upon the defendant on 14.01.1998, Ex. PW-1/23.
52 In the cross-examination no question or suggestion put by defendant's counsel on Ex. PW-1/23. The notice under Section 53-B of DDA Act, therefore, it is proved on record that as required by law proper legal notice under Section 53-B of DDA Act served upon defendant by plaintiff on 14.01.1998. Thereafter after expiry of two months, the present suit filed on 20.04.1998, therefore, the suit is within three years of limiation as per Limitation Act and also after due compliance of Section 53-B of DDA Act.
53 On the basis of above observation and discussion, Issue no. 1 & 2 are decided in favour of plaintiff and against the defendants.
CS No. 4/17/98 Pride Constructions Vs DDA 22/29 54 Issue no. 3, 4 & 5 Issue no. 3, 4 & 5 are taken together as they are inter-connected, however, onus of issue no. 3 & 5 is on the plaintiff and issue no. 4 is on the defendant. The plaintiff Sh. Devender Kumar Nijhavan, appeared in witness box as PW-1, the partner of the plaintiff firm, as discussed in detail hereinabove. Similarly, defendant examined DW-1 Sh. Gurmukh Bhatia, Executive Engineer as DW-1 whose testimony is also discussed in detailed hereinabove.
55 Claim No. 1The plaintiff claimed Rs. 16,822.74 for unlawful, erroneous and illegal deductions. Ld. Counsel Sh. B.M. Sehgal submitted that plaintiff submits that the money recovered by the defendant in certain deductions is an ad hoc deduction but no defects whatsoever were removed and the deducted amount remained unused. However, no document proved in this regard by the plaintiff. It is not established on record that how Rs. 16,822.74 are deducted as erroneous and illegal by the defendant. Therefore, plaintiff is not entitled to claim No. 1 of Rs. 16,822.74.
56 Claim No. 2The claim no. 2 is of Rs. 18,250/- as the levy of compensation under clause 2 of the agreement. Sh. B.M Sehgal, counsel for the plaintiff submitted that the action of defendant is erroneous and illegal. The delay of execution of work is squarely attributed on the part of the defendants. The date of work to be started is 19.11.1993 and time allowed six months. The work was completed on 15.3.1996. There is delay of 39 months. The applications were submitted for expansion of time and defendant CS No. 4/17/98 Pride Constructions Vs DDA 23/29 admitted the delay vide letter Ex. DW-1/11. The plaintiff explained the reasons for delay. The plaintiff had written number of letters for stoppage of work. Letters were Ex. PW-1/9, 10, 11, 12, 13, 14, 16, 19, 22, 23, 24, 25 & 50. Sh. B.M. Sehgal, counsel for the plaintiff further submitted that the work was stopped by the defendant vide letter dated 17.01.1994 Ex. PW-1/D1. The defendant granted provisional expansion of work. The Contract was not surviving when the compensation was levied under clause 2 of the agreement. The defendant has neither suffered any damages nor losses. He relied on judgments of Maula Bux Vs Union of India, AIR 1955, SC 928 field as Annexure P-4, Statement of Rajasthan Vs Chander Mohan Chopra, AIR, 1971, RAJ 229, Annexure P-5, State of U.P. Vs Chander Gupta & Co. AIR 1977 ALL 28 Annexure P-6, Hindustan Petroleum Corporation Ltd. Vs Offshore Infrastrure Ltd. 2016 ( 2) R.A.J 560 ( Bom.) Annexure P-7. 57 In order to appreciate the contention of Ld. Counsel for plaintiff, I would like to draw the attention of the cross- examination of PW-1 Sh. Devender Kumar Nijhavan, PW-1 admitted that benefit of delay 415 days was given to him. He admitted that he had accepted the final bill and also the correctness of the measurement made by the DDA in the work carried out. He denied that DDA had conducted the inspection and found 28 metric tonnes of grills had been stored at the spot. However, he admitted the letter Ex. PW-1/D1. He admitted that no bill of fabrication of grill was filed by him. He admitted that initially several extensions were given by the DDA at its own without asking. He further admitted that extension of time for completion of work was granted to him without levy of any penalty.
CS No. 4/17/98 Pride Constructions Vs DDA 24/29 58 PW-1 further admitted that letter of defendant dated 8.2.1994 Ex. PW-1/D2, dated 6.6.1996 Ex. PW-1/D3, dated 20.08.1996, Ex. PW-1/D4, dated 4.9.1997 Ex. PW-1/D5, dated 13.11.1997 Ex. PW-1/D6, dated 17.01.1994 Ex. PW-/D7, dated 10.06.1993 Ex. PW-1/D8 and dated 12.01.1994 Ex. PW-1/D9. He further deposed that he did not lodge any FIR of the theft at site. He admitted that Superintendent Engineer has levied penalty of 3% under clause 2 of the agreement. He has not given any supplementary bill for extra/higher rates and submitted a bill under section 10 ( c) of the agreement. The said bill is not available on judicial record.
59 The above cross-examination established that the plaintiff admitted the bill and final bill passed by the defendant. He had accepted all the measurements. He admitted that time was extended by DDA for completion of work without is asking. He admitted the letter Ex. PW-1/D1. He admitted various letters written to him after inspection by the officials of DDA. There is no supplementary bill or extra/high rates submitted by him. Therefore, in these circumstances the claim no. 2 of Rs. 18,250/- is not proved by the plaintiff.
Claim No. 3 to 960 The plaintiff claimed Rs. 1,83,131/- for extra expenditure on the purchase of steel. Ld. Counsel for plaintiff Sh. B.M. Sehgal referred to the document Ex. DW-1/8 and letter Ex. PW-1/9. The document Ex. DW-1/8 is a letter of statement of Minus Extra item wherein amount of minus extra items has been mentioned. The document Ex. DW-1/9 is a letter to the plaintiff firm by the defendant regarding breach of contract as per sub-
CS No. 4/17/98 Pride Constructions Vs DDA 25/29 clause 3 of the agreement between the parties regarding delay and suspension of work. It is pertinent to mention here that in the cross-examination PW-1 Sh. Devender Kumar Nijhavan, has admitted that no supplementary bill has been submitted about the extra/high rates. He further deposed that there was no specific direction of stoppage of fixing of installation of the grill vide Ex. PW-1/D7, therefore, plaintiff is not entitled to claim of Rs. 1,83,131/-.
61 Claim No. 4 is for a sum of Rs. 8,476/- for addition consumption of cement, claim no. 5 is for a sum of Rs. 5 lacs for repair and reconstruction of boundary walls, claim no. 6 is for a sum of Rs. 2,47,220/- on account of clause 10 C of the agreement due to the increase in the rates of various items, claim no. 7 is for a sum of Rs. 10,000/- withheld on account of quality Control paragraphs and the claim no. 8 is for Rs. 26,490/- for the theft of grills.
62 I have gone through the record. There is no document proved on record qua consumption of addition cement to the tune of Rs. 8,476/-. In the cross-examination plaintiff admitted the final bill and measurement and never disputed and claimed Rs. 8,476 for addition consumption of cement. Similarly there is no documentary evidence proved for re-construction of boundary walls with regard to claim of Rs. 5,000/- due to damages of boundary wall and on account of clause 10 C of the agreement due to the increase in the rates of various items. Similarly no document proved in this regard. Nothing brought on record about the with held of quality paragraphs. The plaintiff admitted that he did not lodge the complaint about the theft of grill. It is admitted on record that defendant and its officials were CS No. 4/17/98 Pride Constructions Vs DDA 26/29 not liable for safety and security of the site, it is the plaintiff firm who has to take care about the material left at the spot, therefore plaintiff is also not entitled to claim Rs. 26,490/- for theft of grill.
63 Similarly claim of Rs. 9,417/- there is no evidence for wrong erroneous substitution of item of providing and laying in string courses, parapets enchors blocks in foundation and plinth.
64 Now coming to the judgments relied by ld. Counsel for the plaintiff. I have gone through the judgments relied by counsel for the plaintiff. In the judgment of Hydel Construction Ltd. ( Supra) mainly aspect of Arbitration & Conciliation Act has been discussed. It deals with the raising of objections, limitation and claim of minimum wages etc. In my opinion, it is distinguishable in the present facts and circumstances of the case. The judgment of Consulting Engineering Service ( India) Ltd ( Supra), this judgment is distinguishable in the present facts and circumstances of the case as defendant never terminated the agreement, however, they had extended it without even levy of penalty and the opportunities given to complete the work for about two years and duly informed all the defects. The fundamental delay caused due to the theft and damages to the boundary wall for which defendant officials have no concern.
65 The other judgment M/s Hind Construction Contractors (Supra) in this judgment it has been held that provision relating time being of essence and Rescission. Several letters proved by defendants for extension of time without even levy the penalty, therefore, this judgment is distinguishable in the present facts and circumstances of the case. In respect of CS No. 4/17/98 Pride Constructions Vs DDA 27/29 the judgment of Maula Bux ( Supra), in the present case the final bill has been accepted which was duly paid and plaintiff never raised any objection to the payment. Nothing has been proved on record that there was a breach of agreement by the defendants rather it is the breach and delay by the plaintiff. The other judgment of Vishwanth Sood ( Supra). This judgment deals with the passing of non-speaking award hence scope of Section 30 of Arbitration Clause. However, the present case does not invoke any provision of Arbitration & Conciliation Act.
66 The judgment of A.T. Brij Paul Singh ( Supra) deals with the claim of damages on the breach of contract, however, present facts are totally distinguishable as there is no case proved on behalf of plaintiff that defendant breach the contract so there is no question of any damages rather all the delay have been caused on behalf of the plaintiff. The another judgment relied by the ld. Counsel for the plaintiff is of Dwarka Das ( Supra) this judgment again deals with the breach of contract. This is also distinguishable because it is not established on record that contract was signed by the defendants, therefore, there is no question of damages to be awarded to the plaintiff.
67 The another judgment is of P.C. Sharma ( Supra). In the present case the plaintiff had accepted the final bill and did not raise any supplementary bill and not any protest was made by plaintiff while accepting the final bill and payment, therefore this judgment is distinguishable in the present facts and circumstances of the case. The other judgment is of Mohd. Salamtullah ( Supra) this judgment basically deals with the assessment of damages and the powers of the appellant court.
CS No. 4/17/98 Pride Constructions Vs DDA 28/29 However, in the present facts and circumstances this court is not deciding any appeal. Lastly, the judgment of EN Veeka Construction Co. (Supra) this judgment also deals with the assessment of damages, claim, resolution, profit as per Arbitration & Conciliation Act which is not in question in the present suit, therefore this judgment is also distinguishable in the present facts and circumstances.
68 In view of the above all the judgments relied by the ld. Counsel for the plaintiff are not of help for the plaintiff in the present facts and circumstances of the case.
69 Lastly, plaintiff, claimed Rs. 20,000/- cost of proceedings. I find no substance and merit in this claim as plaintiff himself approached to the court and admitted the final bill and received the payment of final bill without any protest. In my considered opinion plaintiff is guilty of breach of Contract it is not the defendant.
70 In view of the above observation and discussion, issue no. 3 & 5 are decided against the plaintiff and in favour of defendant, issue no. 4 is decided in favour of defendant and against the plaintiff.
71 Relief In view of my finding on issue no. 3 & 5 plaintiff is not entitled for any claim. Suit of the plaintiff is dismissed. No order as to cost. Decree Sheet be prepared accordingly. File be consigned to record room.
Announced in the open (SANJAY KUMAR)
court on 23rd August, 2017 ADJ-02 (West)
Delhi
CS No. 4/17/98 Pride Constructions Vs DDA 29/29
CS No. 4/17/98 Pride Constructions Vs DDA 30/29