Delhi District Court
Sh. Dharam Vir vs Delhi Development Authority on 11 July, 2023
IN THE COURT OF MS. RUCHIKA SINGLA,
ADDL. DISTRICT JUDGE-03, NORTH-WEST DISTT.,
ROHINI COURTS, DELHI
CS No. :576296/16
CNR no. DLNW01-000661-2012
In the matter of:
Sh. Dharam Vir,
Sole Proprietor Dharam Vir & Co.
61, Pitam Pura, Village,
Delhi-110088
........ Plaintiff
VERSUS
Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, INA,
New Delhi-10023
....... Defendant
Date of institution : 30.07.2012
Date on which judgment was reserved : 06.07.2023
Date of pronouncement of the judgment : 11.07.2023
CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 1 of 24
JUDGMENT
SUIT FOR RECOVERY
1. By this judgment, I shall decide present suit filed by the plaintiff for recovery.
2. In brief, the case of the plaintiff as per plaint is that he is the sole proprietor of M/s Dharamvir & Co. running his business at Pitampura Village, Delhi. The defendant company invited tenders for maintainance of completed scheme under North Zone. The name of project was Annual Repair and Maintainance of Road near C & D block, Shalimar Bagh (Providing and laying dence bitumenus carpet surfacing on road no. 319, 320 and 323 at C & D, Shalimar Bagh). The plaintiff applied for the said tender and deposited a sum of Rs. 24,385/- as earnest money. The rates quoted by the plaintiff were 41.13% above the estimated cost of Rs. 12,19,252/-. The said quotes were accepted by the defendant vide letter no. F.4(378)/EE/ND- 11/2010-11/459 dated 06.07.2010. The stipulated time to complete the work was 02 months.
3. After the work was awarded to the plaintiff, the plaintiff started the work immediately. A joint site inspection was carried out by the plaintiff and the defendant and it was observed that there were unprecedented number of pot holes in the road to be constructed. Hence, the plaintiff suggested that the pot holes should be repaired.
CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 2 of 24 The Assistant Engineer of the DDA however suggested that a fresh work order for the repair of the pot holes should be issued. Hence, the site was not deemed to be handed over to the plaintiff till the actual repair of the pot holes by the defendant at the site. Also, the plaintiff was unable to commence the work due to rainy season. In view of the same, the defendant unilaterally extended the time to complete the tender vide its letter dated 30.10.2010. Time and again, extentions were granted to the plaintiff.
4. Further, the plaintiff approached M/s T.C. Industries for providing the bitumen concrete on prepared surface. The said company had its office at Inderpuri, New Delhi but as the location of the hot mix plant was outside Delhi, as per the directions of the Hon'ble Apex Court that all the hot mix plants within the territory of Government of NCT of Delhi were closed down, the plaintiff was not supplied with the raw material for the completion of the tender. This fact was informed by the plaintiff to the defendant vide letter dated 12.11.2010. Further, vide a letter dated 01.12.2010, the plaintiff clarified that stone grid does not contain any marking and the bitumen is the product of Govt. Of India. It is submitted that delay was not attributable to Plaintiff as it was the poor planning of the Defendant who sought the work to be executed during peak rainy season but the work was terminated by the defendant vide letter dated 21.05.2011, without any fault of the plaintiff. The plaintiff raised his claim before CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 3 of 24 the defendant but the same was denied. Hence, the present suit was filed.
5. Summons of the suit were served upon the defendant. DDA filed a written statement, taking preliminary objections that the claim was barred by limitation and that there was no cause of action. Defendant admitted the award of work to the plaintiff. It was stated that work was to start from 16.07.2010 and was to be completed by 15.09.2010. However, the work was not done by the Plaintiff. It was further alleged that as the work was in fact, never carried out/ started, accordingly the amount of Performance Guarantee (PG) and Earnest Money (EM) deposited on behalf of the Plaintiff stood forfeited vide letter dated 21" May, 2011.
6. It was further claimed that as per the terms and conditions, the date of start of the work was 16.07.2010 and the site was duly handed over to the Plaintiff on 16.07.2010 but despite numerous requests and reminders from the Defendants, the Plaintiff failed and neglected to start the work in question. It was stated that the plaintiff had been delaying the start of the work in question on one pretext or the other. Even the plaintiff was bound to get the approval of source of all the ingredients of quarry/ Hot Mix Plant/ Source of Bitumen etc., from the Engineer in charge of the defendant, as per the MORTH (Ministry of Road Transport and Highways) specification but the Plaintiff failed and neglected to get the same despite various CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 4 of 24 requests and reminders in this respect. It was further claimed that the Plaintiff had himself admitted in the plaint and also in his letter dated 10.01.2011 that the Bitumen is the product of Govt. of India and there is no private producer of Bitumen. It was submitted that as per the own admission of the Plaintiff that the Bitumen is the product of Govt. of India i.e. Indian Oil Corporation, how, the Plaintiff could have procured the same from private person i.e. Shivalik Tar Products, which proved that the said invoice was forged and fabricated by the Plaintiff only with a view to cheat the defendant.
7. As regards sending the sample for testing and for preparation of Job Mix Formula as per MORTH specification, the Plaintiff submitted the requisite samples on 22.03.2011, although he did not enclose any forwarding letter, and the same were sent to Bharat Test House on the same very day i.e. 22.03.2011. No Test reports were submitted by the Plaintiff. The original test report, being taken by the Plaintiff from Bharat Test House, is in the custody of the Plaintiff and has never been submitted with the defendant. Other allegation regarding huge quantity of earth was lying at site, and the Plaintiff employed any labour to remove the same or that there was any hindrance or that the extension was granted due to the said hindrance, was also denied by Defendant. It was absolutely denied that the Plaintiff has executed any work. It was alleged that the Plaintiff had failed and neglected to start the work despite passage of long time and ultimately the defendant had no other alternative to forfeit the CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 5 of 24 amount PG/ EM vide letter dated 21.05.2011, as also detailed in written statement.
8. Replication to the written statement of defendant was filed on behalf of the plaintiff wherein he denied the averments of the written statement and re-affirmed the averments of the plaint.
9. After completion of pleadings of both the parties, admission/denial of the documents was conducted. Following issues were framed by Ld. Predecessor of this Court vide order dated 18.11.2014:-
1. Whether plaintiff is entitled to suit amount along with interest, as prayed for? OPP
2. Whether the suit of the plaintiff is time barred in view of Section 53B of DDA Act, 1957? OPD
3.Whether there is no cause of action for filing the present suit? OPD.
4. Relief
10. In his evidence, the plaintiff examined himself as PW-1 and he tendered his evidence by way of affidavit, which is exhibited as Ex.PW1/A. He relied upon the following documents in his evidence:-
a) Letter dated 13.10.2010, when the extension of time was granted by the Executive Engineer unilaterally is Ex. PW 1/1.
CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 6 of 24
b) Letter dated 20.10.2010, in reply to the plaintiff letter dated 31.08.2010 whereby the defendant has agreed to release the payment in terms of agreementis Ex. PW 1/2.
c) Letter dated 04.11.2010, in reply to the plaintiff's letter dated 30.10.2010, whereby the defendant raised various complaints against the plaintiff is Ex. PW 1/3.
d) Letter dated 09.11.2010 another extension of time was granted is Ex. PW1/4
e) Letter dated 12.11.2010 is Ex. PW 1/5.
f) Letter dated 22.11.2010 from the plaintiff, delivering an undertaking from M/s T.C. Industries, whose capacity to execute the work is well narrated in his letter dated 19.11.2010 is Ex. PW 1/6.
g) Letter dated 26.11.2010 whereby the defendant wanted to know the source of material to be procured and detail of Hot Mix Plant to execute the work is Ex. PW1/7.
h) Letter dated 29.11.2010 granting another extension of time unilaterally is Ex. PW1/8.
CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 7 of 24
i) Letter dated 01.12.2010, the plaintiff clarified that bitumen 60/70 is available in the market and if permission is given he shall procure it is Ex. PW 1/9
j) Letter dated 02.12.2010, the plaintiff again wanted a permission from the department for the procurement of bitumen. The other material being put to the required test is Ex. PW1/10.
k) Letter dated 16.12.2010 from the plaintiff to the defendants, in reply to the defendant's letter dated 06.12.2010, explaining various problems faced in the execution of work and also intimating the defendant about the employment of engineer and about the Hot Mix Plan, from where the design mix bitumen is to be procured is Ex. PW1/11.
l) Letter dated 10.01.2011 again informed the defendant about the procurement of material is Ex. PW 1/12
m) Letter dated 20.01.2011 the letter written by the defendants are containing contradictory statements therefore plaintiff requested to defendant to attend the site is Ex. PW1/13.
n) Letter dated 31.01.2011, the plaintiff again clarified that it has procured large quantity of material at site of work. The bitumen procured is lying at the site at Bhiwani is Ex. PW 1/14 CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 8 of 24
o) Letter dated 22.03.2011 from the defendant, requesting for the testing of material is Ex. PW1/15.
p) Letter dated 08.04.2011 whereby the plaintiff clarified that Shri Kailash Gupta JE visited the site for the record of levels could not do it because of the huge quantity of earth lying at site and also due to existing of pot holes is Ex. PW 1/16.
q) Letter dated 19.04.2011 the plaintiff strongly protested that without visiting the site and without making any observations made. Shri Sanjay, engineer of the plaintiff visited the site 02.02.2011 along with Shri Kailash Gupta who refused to record the levels is Ex. PW1/17.
r) Letter dated 28.04.2011, the plaintiff has employed the large number of labour force and tractors to remove the earth from site is Ex. PW1/18.
s) Letter dated 29.04.2011 from the defendant requesting to record the levels of his own is Ex. PW 1/19.
t) Letter dated 29.04.2011 the defendant again granted the extension of time is Ex. PW 1/20.
u) Letter dated 27.05.2011, the letter addressed to the Executive CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 9 of 24 Engineer, Superintending Engineer and Chief Engineer separately whereby the plaintiff clarified that certain officers at site were demanding bribe from him is Ex. PW 1/21.
v) Letter dated 30.05.2011, the plaintiff clarified that the work has been started and bitumen got tested from Bharat Test House, the photocopy of material procured from Shivalik was also handed over to the defendant is Ex. PW 1/22.
w) Notice dated 20.11.2011 from the plaintiff's counsel to the defendant under section 53 (b) along with the postal receipts are Ex. PW1/23.
x) Letter dated 05.12.2011, the notice was wrongly delivered to ND9, who returned the notice as Ex. PW 1/25.
y) Notice dated 06.02.2012, which is posted to both Vice Chairman and Executive Engineer at Correct Address with postal receipts are Ex. PW1/26.
z) Letter dated 11.04.2012 from the Executive Engineer containing the reply to the notice are Ex. PW 1/26.
za) Final Bill is Ex. PW1/27.
CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 10 of 24 zb) Levels as recorded by the parties is Ex. PW 1/28.
11. During the course of cross examination, certain documents were put by Ld. Counsel for the defendant to the plaintiff. The documents are as under :-
a) Letter dated 20.10.2010 as Ex. PW1/D2, letter dated 22.10.2010 as Ex. PW1/D3 and 04.11.2010 as Ex. PW1/D4, to which the plaintiff replied that whether he has received this document or not. Hence, these documents were not admitted.
b) However, regarding the documents i.e. letter dated 13.10.2010 as Ex. PW1/D1, letter no. 106 dated 31.01.2011 as Ex. PW1/D5, letter no. 295 dated 16.03.2011 as Ex. PW1/D6, letter no. 303 dated 17.03.2011 as Ex. PW1/D7, letter no. 391 dated 08.04.2011 as Ex. PW1/D8, letter no. 496 dated 29.04.2011 as Ex. PW1/D9, letter no. 512 dated 29.04.2011 as Ex. PW1/D10, letter no. 139 dated 18.11.2010 as Ex. PW1/D11, letter no. 1317 dated 27.12.2010 as Ex. PW1/D12 and letter no.
23 dated 11.01.2011 as Ex. PW1/D13, the plaintiff admitted that all the letters were received by him.
12. The plaintiff was duly cross examined by Ld. Counsel for the defendant. In view of separate statement made by Ld. Counsel for the plaintiff, PE was closed vide order dated 15.12.2018.
CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 11 of 24
13. Thereafter, the matter was fixed for DE. The defendant examined Sh. B. K. Gupta as DW-1 and tendered his evidence by way of affidavit as Ex. DW1/A. He relied on documents Ex. PW1/D1 to Ex.PW1/D10, Ex.PW1/5 and Ex.PW1/12. He was duly cross examined by Ld. Counsel for the plaintiff and DE was closed vide order dated 26.03.2019.
14. I have already heard final arguments from Sh. G.L. Verma, Ld. Counsel for plaintiff and Sh. S.S. Mittal, Ld. Counsel for the defendant and have perused the entire material available on record carefully. The issues were framed by Ld. Predecessor of this Court vide order dated 18.11.2014. My Issue-wise findings are as under:-
Issue no. 1:
"Whether plaintiff is entitled to suit amount along with interest, as prayed for? OPP"
15. The onus to prove this issue was upon the plaintiff. The plaintiff has filed the present suit on the allegations that the Plaintiff was awarded a Contract vide letter dated 06.07.2010 for execution of particular work within a period of 2 months from 16.07.2010, which was completed on 21.05.2011. He further claims that the delay in execution was on account of lapse on the part of the Defendant. The Plaintiff claims a sum of Rs.14,63,280 as the amount of final Bill, Rs. 4,385.00 towards refund of earnest money wrongfully forfeited by CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 12 of 24 Defendant, Rs. 86,039.00 towards refund of Performance guarantee wrongfully forfeited, Rs. 25,750.00 on account of loss of profit on unexecuted work, Rs. 3,34,000.00 towards Watch and Ward charges etc., Rs.10,000.00 towards cost of Legal Notice, besides interest @ 12% per num and cost of the suit.
16. Defendant's counsel has argued that thought the work was awarded to the plaintiff, the work was to start from 16.07.2010 and was to be completed by 15.09.2010 but the work was not done by the Plaintiff. It is further alleged that as the work was in fact, never carried out/ started, the defendant was within its right to forfeit the amount of Performance Guarantee (PG) and Earnest Money (EM) deposited by the Plaintiff. The same stood forfeited vide letter dated 21" May, 2011. It is further submitted that although there was no reason for not starting the work on behalf of the Plaintiff, however, the defendant granted various extensions of time for execution of the awarded work but the work was not completed by the Plaintiff as he had no intention to execute or even to start the work and he kept on delaying the start of the work on one pretext or the other.
17. It was further argued that the plaintiff further did not take any action with respect to the Job Mix Formulas Procurement of Bitumen and Batch mix in plant despite various requests and reminders from the defendant. It is further alleged that the Plaintiff has concocted false and frivolous story of "Pot holes Theory" only with a CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 13 of 24 view to delay the execution/ start of the awarded work. It is further alleged that in letters dated 30.10.2010 and 12.11.2010, the Plaintiff admitted his failure to procure the required material. It is further claimed that the letter dated 01.12.2010 and 02.12.2010 by the Plaintiff were duly replied by the defendant vide letter No. 391 dated 03.12.2010.
18. It is further claimed that plaintiff was bound to get the approval of source of all the ingredients of quarry/ Hot Mix Plant/ Source of Bitumen etc., from the engineer in charge of the defendant, as per the MORTH (Ministry of Road Transport and Highways) specification but the Plaintiff failed and neglected to get the same despite various requests and reminders in this respect.
19. It is further claimed that the Plaintiff has himself admitted in the para under reply and also in his letter dated 10.01.2011 that the Bitumen is the product of Govt. of India and there is no private producer of Bitumen. Hence, how the Plaintiff could have procured the same from private person i.e. Shivalik Tar Products, has not been explained by the plaintiff. This proves that the said invoice is forged and fabricated by the Plaintiff only with a view to cheat the defendant. Further, it was required by the plaintiff to send the sample for testing and for preparation of Job Mix Formula as per MORTH specification but no Test reports were submitted by the Plaintiff. The original test report was taken by the Plaintiff from Bharat Test House and is in his CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 14 of 24 custody but the has never been submitted with the defendant.
20. It is alleged that as the Plaintiff had failed and neglected to start the work despite passage of long time, the defendant had no other alternative but to forfeit the amount PG/ EM vide letter dated 21.05.2011. Further, it was argued that the letter dated 30.05.2011 was forged and fabricated.
21. Ld. Counsel for the defendant has argued that it is a settled law that the Plaintiff has to stand on his own legs and has to prove his case. PW1 tendered his evidence by way of affidavit on 19.02.2018 and on 28.08.2018, in his cross examination, he admitted that he had been working as contractor of DDA may be since last 25 years or 35 years. PW1 also admitted that he was fully aware about all the rules and regulations of DDA. PW1 claimed that he filed the tender on the basis of tendered documents but no site plan or drawings were issued by DDA to him. However, PW1 admitted that he never wrote any such letter to the DDA demanding site plan and drawing. Further, PW1 also admitted that site was handed over to him on 16.07.2010 and completion time was 2 months expiring on 15.09.2010. Firstly, PW1 denied the suggestion that despite rainy season work could be completed in 2 months. However, thereafter, PW1 admitted that work could very well be completed despite rainy season. Hence, it is argued that the averment of the plaintiff that he could not start the work due to rainy season is a false submission.
CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 15 of 24
22. Record perused.
23. In the present matter, as enumerated above, the plaintiff has sought recovery of the charges for the work allegedly completed by him, while the DDA/defendant has alleged that no work was done by the plaintiff at any point of time. It is an admitted fact that time was the essence of the contract between the parties. The initial period of contract was 2 months and admittedly the same was extended by the defendant from time to time.
24. Firstly, Ld. Counsel for the defendant has argued that the plaintiff had not prepared the material as per the MORTH specifications, though the plaintiff was well aware that the material had to be as per these specifications. Perusal of the cross examination of PW-1 as well as the cross examination of DW-1 shows that the plaintiff has averred that there was no such requirement of the samples to be as per the MORTH specification. However, no evidence has been led by the plaintiff regarding this fact.
25. Per contra, perusal of record shows that the plaintiff was informed qua the same vide a letter dated 29.04.2011, which was admitted by the plaintiff during his cross examination as Ex. PW1/D10. Further, the plaintiff admitted a letter dated 18.11.2010 which is Ex. PW1/D11, wherein the defendant had complained to the CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 16 of 24 plaintiff that he was not starting the work despite various directions. It was further mentioned that the plaintiff was making baseless correspondence and not starting the work. Further, vide letter dated 27.12.2010 admitted as Ex. PW1/D12 by the plaintiff, the defendant has again requested the plaintiff to bring the samples of all ingredients as per the requirement of the MORTH specification.
26. Hence, as mentioned above, it is proved that the plaintiff had been informed by the defendant repeatedly that the samples were supposed to be as per the MORTH specification. Further, the plaintiff has not led any evidence to show that this requirement was not there. Hence, it is proved that the material which was to be used was supposed to be as per the MORTH specifications.
27. Further, the plaintiff has himself relied upon a letter dated 04.11.2010 Ex. PW1/3, where it is mentioned that as per the terms and conditions of the agreement, the plaintiff was required to intimate the name of any graduate engineer for taking of levels of existing road, where dense bitumenous was to be done. However, there is nothing on record to show that the same done by the plaintiff. No such correspondence is placed on record by the plaintiff vide which this requirement was met. Hence, the plaintiff has been unable to prove that this requirement was met by him. Further, it was also mentioned in the letter Ex. PW1/3 that the job mix formula and location of the bituminous plant was to be approved from the engineer Incharge.
CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 17 of 24 However, the plaintiff was not placed on record any such document to show that he had taken the approval from such engineer at any point of time.
28. It is alleged by the plaintiff that the supplier of the material was unable to supply the material as all the hot mix plants within the territory of Govt. Of NCT of Delhi was closed down. However, the plaintiff has not proved on record any such document that the said company was closed down. In fact, in his letter dated 16.10.2010 Ex. PW1/11, he has mentioned that the factory of that company M/s T.S. Industries from whom the material was to be procured was located at Distt. Alwar, Rajasthan. Hence, the averment of the plaintiff that the material could not be procured due to the closing of the hot mix plants within the territory of the Govt of NCT of Delhi is an inconsequential argument. The factories in the territory of NCT of Delhi were closed. The factory at Alwar, Rajasthan was very much open. Hence, there was no reason for the non-procurement of the material.
29. Further, in the same letter Ex.PW1/11, the plaintiff has mentioned that the material has to come from outside Delhi which is only approx 50-60 kms from Delhi. Hence, the argument of the plaintiff that the non procurement of the material was beyond the capacity and control is a false and misleading argument. Further, in view of the above admission of the plaintiff that the work could have CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 18 of 24 been done in the rainy season, the plaintiff has not provided any cogent reason as to why the work could not be done by him. Further, Ld. Counsel for the defendant has argued that the plaintiff has given an excuse regarding the non procurement of the bitumen. The plaintiff has stated in his cross examination that he did not remember if he had admitted that only Indian Oil Corporation was the producer of bitumen. However, the plaintiff has himself exhibited a letter dated 10.01.2011 which was written by him to the DDA which is Ex. PW1/12 wherein he has himself written "as per my information and knowledge, there is no private producer of bitumen, only Indian Oil Corporation, produces it. Therefore, to allege that it is unmarked is unacceptable." Hence, again the plaintiff has made contrary submissions before the court. At one instance, as per his own document, he has acknowledged the fact that only Indian Oil Corporation produces bitumen but thereafter, he has sought to procure bitumen from a private company i.e. M/s T.C. Industries. Hence, it seems that the intention of the plaintiff was only to delay the matter.
30. Further, as mentioned above, the plaintiff had been informed that the material had to be sent for testing as per the MORTH specifications. As discussed above, he was duly informed qua the same by the defendant by various letters. Further, it is an admitted fact that he had been working as a contractor for the defendant for more than 2 decades. Hence, the fact that he was unaware of this specification does not seem plausible.
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31. Now, as per the plaintiff's own case and documents, he had sent the samples for testing and he has alleged that the DDA was informed qua the same and thereafter, work was done by him. In this regard, the plaintiff has placed on record a letter dated 22.03.2011 which was issued by the Assistant Engineer, DDA as Ex. PW1/15 to the Assistant Director, Bharat Test House wherein it was mentioned that the material for the preparation of the job fix formula was required to be sent for testing and that the same be tested as per the MORTH specification. In the letter, it has been mentioned that the plaintiff had to arrange the carriage of the samples. The defendant has specifically alleged that the plaintiff did not submit the test result with them. The plaintiff has placed on record the copy of the test report Ex.PW1/15A but there is nothing on record to suggest that the same was ever submitted to the DDA or that an approval was taken from the DDA to complete the work as per the approved samples.
32. The plaintiff has placed on record a letter dated 30.05.2011 as Ex.PW1/22 vide which he allegedly completed a work amounting to Rs. 15 lacs. Here, though the plaintiff has placed on record the letter Ex.PW1/22, there is nothing on record to suggest that this letter was ever submitted to the DDA. There is no receiving by the DDA or postal receipt to show that this letter was sent by the plaintiff to the defendant at any point of time. In fact, the plaintiff even did not put this question to DW1 as to whether the defendant had received this CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 20 of 24 letter at any point of time. Perusal of the record shows that no document has been filed by the plaintiff to show that any work was completed by him at any point of time. He has only merely mentioned this fact in his letter Ex. PW-1/22. He has alleged in this letter that he had procured the material from Shivalik Tar Products. Copy of a bill issued by Shivalik Tar Products is also placed on record. However, as mentioned earlier, the plaintiff had initially written a letter to the defendant that he shall procure the material from M/s TC Industries. There is nothing on record to show that the plaintiff had informed the defendant that he shall procure the material from M/s Shivalik Tar Products. Further, there is also nothing on record to suggest that the samples which were sent for testing were from M/s Shivalik Tar Products.
33. He has further mentioned in his letter Ex.PW1/22 that the dense bitumen concrete was manufactured in the presence of the defendants JE Sh. P.K. Sharma. However, the plaintiff did not take any steps for his appearance as a witness in the present matter. The plaintiff also did not attach any photographs to show that the work was ever completed by him. Hence, merely filing of a bill from M/s Shivalik Tar Products does not prove the same, particularly, in view of the fact that the plaintiff did not summon the record from M/s Shivalik Tar Products. The plaintiff also did not summon any record to show that the material was actually supplied from M/s Shivalik Tar Products to him at any point of time. No suggestion was put to the defence CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 21 of 24 witness that the work was started and completed. It is a settled principle of law that non putting of suggesion amounts to an admission. Thus, it can be safely inferred that plaintiff did not complete work within time. In view of the same, the court is of the opinion that the plaintiff has failed to prove that he had conducted any work as granted to him by the defendant. Hence, the plaintiff is not entitled to the relief as claimed by him. This issue is accordingly decided in the favour of the defendant and against the plaintiff.
Issue no 2 "2. Whether the suit of the plaintiff is time barred in view of Section 53B of DDA Act, 1957? OPD"
34. The onus to prove this issue was upon the defendant. It is provided under Section 53B of DDA Act that before the institution of the suit, a mandatory notice of 2 months has to be given to the DDA. The plaintiff has filed the present on 28.7.2012. Prior notice under Sec 53 B of DD Act was duly given on 20.11.2011 which was replied by DDA on 11.4.2012. Hence, this requirement is met with by the plaintiff.
35. The defendant contends that the suit of plaintiff is time barred in view of Section 53B of DDA Act, 1957. The plaintiff has relied upon the case of Delux Estates (P) Ltd. Vs. DDA reported at 105 (2003) DLT 829 contending that where the refund was belated, CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 22 of 24 the act of the authority that was not done pursuant to any provision of the DDA Act or rules and regulations framed thereunder, would not attract the provisions of limitation prescribed under the Act and instead, the limitation ordinarily applicable under the Limitation Act apply for instituting a suit for recovery of amounts.
36. The law laid down in Delux Estates (P) Ltd. Vs. DDA reported at 105 (2003) DLT 829 squarely favours the plaintiff. Ordinary limitation will govern plaintiff's case. Present case is not a case seeking enforcement of rights under DDA Act. Recovery suit was filed on 28.7.2012. Prior notice under Sec 53 B of DD Act was duly given on 20.11.2011 which was replied by DDA on 11.4.2012. Hence, the suit is within three years from cause of action. Hence, Issue no 2 is decided in plaintiff's favour and against the defendant.
Issue no 3 "Whether there is no cause of action for filing the present suit? OPD."
37. The onus to prove this issue was on the defendant. It is plaintiffs case that the Plaintiff not paid for the job done by him in pursuance to the tender awarded to him vide letter dated 06.07.2010. From the pleadings of plaintiff, it can not be said that case is without cause of action. In U.P. Rashtriya Chini Mill Adhikari Parishad Vs. State of U.P., (1995) 4 SCC 738, it was held thus:
CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 23 of 24 "The expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in cause of action. It has to be left to be determined in each individual case as to where the cause of action arises."
38. From the pleadings of plaintiff, it can not be said that case is without cause of action. Hence, this issue is decided in plaintiff's favour and against the defendant.
Relief In view of findings on issue no 1, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court Digitally signed
RUCHIKA by RUCHIKA
on 11th July, 2023. SINGLA
SINGLA Date: 2023.07.11
14:56:22 -1000
(RUCHIKA SINGLA)
Addl. Distt. Judge-03, North-West Distt.,
Rohini Courts, Delhi.
This judgment contains 24 pages and each
page is checked and signed by me.
CS DJ 576296/16 Dharam Vir Vs. DDA Page no. 24 of 24