Delhi District Court
Delhi Development Authority vs M/S Composite Consultant Pvt. Ltd on 10 September, 2014
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No.478/2010
IN THE MATTER OF:
Delhi Development Authority
Vikas Sadan, New Delhi.
Through I.S. Sandhu .....Plaintiff
VERSUS
M/s Composite Consultant Pvt. Ltd.
Regd. Office at Composite House,
170171, Gulmohar Park Road, New Delhi49
....defendant
Date of Institution: 28.05.2010
Date of Reserving for Judgment: 25.08.2014
Date of Judgment : 10.09.2014
SUIT FOR RECOVERY OF RS. 1,63,660/
JUDGMENT:
1. Vide this Judgment, I shall decide a suit for recovery of Rs. 1,63,660/ filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are that the plaintiff vide agreement No. 13/EE/ISD/DDA/A/8586, award the work of the development of land for CHBS in Zone E8 to E12 in Shahdara S.H.: C/o 7.00 million liters ( 15 lacks gallons) capacity RCC ground reservoir in Zone E8near Laxmi Nagar,District Center, with stipulated date of start and completion being 24.09.85 and 2306 Suit No. 478/2010 Page No. 1 of 13 1986, but the work was actually completed on 25071987. The estimated cost of the work was Rs. 23,25,000/ The tender amount was Rs. 20,25,000/. The cost of the completed work was Rs. 20,12,952. The total amount of the claim , counter claim refereed to the arbitrator was Rs. 15,35,125/ claimed by the defendant and Rs. 96,509/ claimed by the plaintiff as counter claim. The dispute between the parties arose and Sh. A.L. Garg, Superintending Engineer ( Arbitrator) I, DDA was appointed as sole arbitrator by EM/DDA vide No. EM2(102)88/Arbn./1308387 dt. 04101991. The defendants claimed sever claims and fourteen additional claim for Rs. 15,35,125/ whereas plaintiff had put for only one counter claim amounting to Rs. 96,509/ for adjudication by the arbitrator. The arbitrator had awarded Rs. 33,911/ in respect of four claim i.e. claim No. 1,3, & 7 and additional claim No. 10 and rest of the claim of the defendants were rejected. The Ld. Arbitrator also awarded to release the security deposit of Rs. 1,00,000/ lying in the shape of Bank Guarantee. The Counter claim filed by the plaintiff was disallowed by the arbitrator. The Arbitrator also awarded 15 % per annum simple interest from the date of publishing award i.e. dt. 04 061992 to the date of actual payment of decree whichever is earlier. The plaintiff challenged the award before the Hon'ble High Court and filed objection against the said award. After hearing the Suit No. 478/2010 Page No. 2 of 13 objections filed by the plaintiff against the aforesaid award, Hon'ble High Court set aside the award in respect of two subclaim i.e. Claim No. 1 (i) and 1 (iii) and nothing stated regarding the rate of interest. It is further submitted that the defendant filed an execution petition No. 203/2005 for Rs. 33,911/ and the plaintiff also filed an execution petition No. 66./2005 for Rs. 60,043/ in respect of sub claim No.1 (i) and 1 (iii) . It is further submitted that the Hon'ble High Court after hearing the arguments of both the parties held that award in respect of sub clause 1 (i) & (iii) amounting to Rs. 60,043/ was an excepted matter which could not have been arbitrated upon. However, this amount can not be recovered by DDA/Plaintiff from the execution petition which have been made rule of court. However, DDA/plaintiff is entitled to recover this amount from the agency CCPL in other manner permissible in under law. Simultaneously, court held that amount of Rs. 33,911/ has been arrived at by Arbitrator by excluding a sum of Rs. 60,043/ in respect of the claim No. 1 (i) & (iii) so both the petition have been dismissed by the court. However, the court further mentioned in its order that it shall be open to DDA/plaintiff to pursue the remedies available to it in law for recovery of the above amount in excepted matters. The total recoverable amount from the defendant comes to Rs. 60,043/ against which Rs. 15,661/ under claim No. 1 is payable by the Suit No. 478/2010 Page No. 3 of 13 plaintiff , so the net recoverable amount comes to Rs. 44,382/which the defendant is liable to pay alongwith interest @ 15 % p.a. and thus the total amount recoverable from the defendant comes to Rs. 1,63,660/. The defendant has failed to pay the said amount despite repeated demand of the plaintiff. Hence, the present suit is filed by the plaintiff.
3. On the other hand the defendant in its WS has contended that the suit of the plaintiff is barred by law of limitation. The plaintiff has wrongly interpreted the judgment and decree dt. 08052002 passed by the Hon'ble High Court of Delhi. The award dt. 04061992 have been made an published by Sh. A.L. Garg, sole Arbitrator appointed by the plaintiff, allowing certain claim of the objector and rejecting the counter claim of the plaintiff. It is further submitted that the subject matter of the suit relates to only to claim No. (i) and (iii). In relation to these two subheads of the claim No. 1, the Ld. Sole Arbitrator had held in favour of the defendant and against the plaintiff. The Hon'ble High Court of Delhi had deleted certain items from the award as expected item not in the purview of the arbitrator. The items stand deleted from claim of the defendant as well as counter claim of the plaintiff. The defendant had informed the plaintiff about the award being made rule of court by the Hon'ble High Court of Delhi vide its registered letter dt. 23082002 to pay Suit No. 478/2010 Page No. 4 of 13 the due amount to the defendant but the plaintiff, however, failed to respond the same. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. From the pleading of the parties following issues were framed vide order dt. 07122010.
i) Whether the plaintiff is entitled to a decree for recovery of Rs.
1,63,600/, as prayed ?OPP.
ii) Whether the plaintiff is entitled to pendentelite and future interest as prayed? OPP
vii) Relief
5. To prove his case plaintiff has examined Sh. K.K. Jamuda as PW1 , PW1 has filed his evidence by way of affidavit Ex. CW1/A. In his affidavit PW1 has reiterated the facts mentioned in the plaint and relied upon the following documents document:
i) Copy of order dt. 24082009 is Ex. PW1/1 Colly.
ii) Copy of Judgment dt. 08052002 is Ex. PW1/2 colly. Iii) Copy of award dt. 04061992 is Ex. PW1/3 colly.
iv) Copy of decree in the suit on the basis of award is Ex. PW1/4 colly.
The PW1 was also crossexamined by the Ld. counsel for the defendant. During crossexamination the PW1 was confronted with Suit No. 478/2010 Page No. 5 of 13 the documents Ex. PW1/D1 which is letter dt. 23062004.
6. On the other hand the defendant has examined Sh. Amitabh Sood as DW1. DW1 has filed his evidence by way of affidavit Ex. DW1/1. In his affidavit DW1 has reiterated the facts mentioned in his WS and relied upon the documents Ex. DW1/A which is resolution dt. 05112010 and Mark C which is letter dt. 23082002. During crossexamination DW1 was confronted with agreement dt. 1609 1985 Ex. DW1/P1 Colly and Execution order dt. 24082009 Ex. DW1/P2 colly.
7. I have heard Ld. counsel for both the parties and perused the record & gone through the relevant provision of law.
8. My issue wise finding is as under:
9. Issue No. 1. Whether the plaintiff is entitled to a decree for recovery of Rs. 1,63,600/, as prayed ?OPP.
Issue No. 2 Whether the plaintiff is entitled to pendentelite and future interest as prayed? OPP Issue nos. 1 and 2 are being taken up and decided together since involve appreciation of common evidence for these issues. Before delving on the rival contentions of the parties it is relevant to discuss the evidence led by the parties.
10.PW1 Sh. K.K. Jamuda stated in his crossexamination that he was appointed in DDA on 5091995 as an assistant engineers and is Suit No. 478/2010 Page No. 6 of 13 aware of the facts of the case. The contract was for the construction of RCC reservoir. The dispute was regard withholding of the amount of the defendant. The plaintiff has raised the documents with regard to the dues from the defendant. Letter dt. 23062004 was sent by the plaintiff after the passing the aware of the arbitrator. The said letter is Ex. PW1/D1. He could not admit or deny whether the defendant had provided sluice valve to the plaintiff. As per the report the defendant has not installed the spindle. The plaintiff has inspected the work carried out by the defendant from time to time and deficiency in the work came in the knowledge then and there and therefore, the department withheld the amount towards the deficiency in work. The date of commencement of work was 2409 1985 and completion was 23061986 but the work was actually completed on 25071987.He did not remember whether the department informed the defendant in writing regarding the deficiency in work. The defendant accepted the bill sent by the department. The concrete test was done by the outside lab as well as DDA lab and it was found that the ratio was 1: 3.6:8.9. He is not aware whether league was noticed by the then staff of the plaintiff. As per the record of the plaintiff the ration of concrete should have been 1:1.5:3 for water structure.
11.DW1 Sh. Amitabh Sood stated in his crossexamination that there Suit No. 478/2010 Page No. 7 of 13 are two directors in defendant's company Amitabh Sood and Alka Sood. Only director were present in the meeting held on 0511 2010. The minutes of the meeting was not brought by him. Agreement between the parties was executed on 16091985. He denied that the payment was released on percent basis for different work after completion. The payment was released on the basis of completion different stage of work and these stages of work are mentioned in contract Ex. DW1/P1 colly. There is a provision in the said contract for deduction of rate of improper mixing of cement. The ration of mixing of cement and concrete was complied with at 1:1.5:
3. The spindle of swiss wall was essential part of contract. He denied that the said work was not completed by the defendant. He denied that he was to pay 10 percent of heavy compensation because of non completion of work in time.
12.The contention of the defendant is that the present suit is barred by limitation, which is without any merits since the cause of action arose for the first time on 8/5/2002 when the Hon'ble Delhi High Court set aside the award dated 4/6/1992 with respect to the claim nos. 1 (i) & (iii). Thereafter, the plaintiff initiated execution proceedings with respect to the present cause of action, which were dismissed vide order dated 24/8/2009 since the amount under execution was to be recovered by the plaintiff as per law and not via Suit No. 478/2010 Page No. 8 of 13 execution proceedings. In view of the provisions under S. 14 of the Limitation Act, the period when the execution proceedings were initiated till 24/8/2009 are to be excluded. This suit was instituted on 28/5/2010. Thus, this suit is filed within the period of limitation.
13. The contention of the plaintiff is that the total recoverable amount from the defendant comes to Rs. 60,043/ in terms of judgment dated 8/5/2002 in appeal and dated 24/8/2009 in execution proceedings passed by the Hon'ble Delhi High Court. Against Rs. 60,043/ under claim no. 1 plaintiff is to pay Rs. 15, 661/ to the defendant and thus, net recoverable amount comes to Rs. 44, 382/ which the defendant is liable to pay with interest @ 15 % per annum and thus a total of Rs. 1,63,660/ is recoverable from the defendant.
14.At this juncture it is relevant to discuss the relevant paragraphs of judgments dated 8/5/2002 and 24/8/2009, which are reproduced as under: Order dated 8/5/2002
19.There is no other objection raised in the application filed by the respondent under section 30 & 33 of the Arbitration Act and the same stands disposed of in terms of the aforesaid order. As a result, the award passed by the arbitrator is made a rule of the court save and except the award passed by him with regard to subhead 1 & 3 of claim No. 1 . A decree sheet be accordingly drawn up. Order dated 24/8/2009 The two executions are filed by the two parties to an arbitration Suit No. 478/2010 Page No. 9 of 13 proceedings. The arbitral award dated 4th June, 1992 after considering the various claims and counter claims is for net payment by DDA to M/s. Composite Consultants Pvt. Ltd. (CCPL) of a sum of Rs.33,911/ with interest. Two of the claims of CCPL before the arbitrator were for wrongful deduction by the DDA of Rs.2,794/ and Rs.57,249/ out of the admitted amounts payable to CCPL. The arbitrator inter alia held that the said deductions had been wrongly made by the DDA and accordingly the amounts therefor were payable by DDA to CCPL. The net amount of Rs.33,911/ found payable by DDA was arrived at, also considering that CCPL was entitled to the said two payments.
In proceedings for making the said award rule of the court being Suit No.2281A of 1993, this court however on 8th May, 2002 held that the decision of the relevant authority of the DDA for deduction of the sums of Rs.2,794/ and Rs.57,249/ was an excepted matter and hence could not have been arbitrated upon. The award was made rule of the court inter alia with the said modification.
DDA has preferred Execution No.66/2005 stating that since the amounts of Rs.2,794/ and Rs.57,249/ (total Rs.60,043/) which the award had held payable by the DDA were not payable by the DDA to CCPL, after deducting Rs.33,911/ otherwise held payable by DDA, a sum of Rs. Rs.26,132/ along with interest as awarded was due from CCPL to DDA. Execution No.203/2005 was filed by CCPL for recovery of Rs.33,911/ with interest. CCPL has preferred objections in execution preferred by DDA.
I find that once it was the stand of the DDA and has been upheld by this court that the claims of the DDA of Rs.2,794/ and Rs.57,249/ were excepted matter, DDA cannot execute recovery thereof in execution of the award made rule of the court. DDA though is entitled to recover the said amounts from CCPL in other manners permissible in law. Once the amount is held to be an excepted matter, it ceases to be a part of the award and cannot be recovered in execution of the award. Thus the execution petition filed by the DDA is misconceived.
The execution preferred by CCPL is similarly misconceived. The amount of Rs.33,911/ in favour of CCPL was arrived at after including the amounts of Rs.2,794/ and Rs.57,249/. Once the said amounts are to be excluded, axiomatically the sum of Rs.33,911/ Suit No. 478/2010 Page No. 10 of 13 would also not be payable by DDA to CCPL.
Accordingly, both the execution petitions are dismissed. It is however clarified that it shall be open to DDA to pursue the remedies available to it in law for recovery of the amounts held to be excepted matter. The parties are left to bear their own costs. All pending applications are also disposed of.
15.From the aforesaid, it is clear that the plaintiff was directed/permitted by the Hon'ble Delhi High Court to recover the suit amount as per law by filing a suit for recovery and proving its case therein.
16.It is also relevant to discuss the relevant portions of the award dated 4/6/1992, which is as under:
(i)DEDUCTION OF Rs. 2794.00 FOR IMPROPER MIXING OF CEMENT CONCRETE:
The claimants contended that the results of the cement concrete cubes taken during execution of work were satisfactory. The amount deducted allegedly for bad concrete, not proper mixing, based on the inspection and testing of EE(QC), without informing them regarding the proposed deduction or rectification of the work, is unjustified. The respondents contended that the results of chemical analysis of the two samples of concrete taken from the walls showed different results. In one sample it has shown very poor results as 1:3.6:8.9 whereas in the other the result was satisfactory. On reference of these results it was inferred that mixing of concrete was not proper.
On Consideration of the records and submission made by both the parties, I find that the contention of the respondents is not acceptable since the inference drawn by them for improper mixing for the whole concrete, is not correct in view of the facts that the work was executed on different days spanning over a large period of time. Moreover the cube test taken during execution have passed and the ration of cement concrete shown by the tests of chemical analysis as 1:3.6:8.9 can not withstand the water test.
(ii) WITHHOLD OF Rs. 57, 249/ FOR SPINDLES OF SLUICE VALVES:
The claimants contended the work was complete including spindles Suit No. 478/2010 Page No. 11 of 13 of sluice valves when the watch and ward was removed by them on 15021988 ( annexure20). However due to fear of theft , the spindles of sluice valves were removed and re fixed on the instructions of the respondent and intimated to them vide exhibit C 30 dt. 230289. The respondent stated that the spindles were taken by the claimants as evident from the undertaking given by them on 01021989 exhibit R9 and were not fixed after wards. They also denied the receipt of letter dt. 230289.
On consideration of the records and hearing the arguments of both the parties, I find that there is no force in the submission of the respondents in view of the fact that the respondents never pointed out this major deficiency while pointing out other small deficiencies in their subsequent correspondence after 23.2.89 ( R26,R28, R30), hence they are not justified for withholding the amount of this account.
17.The case of the plaintiff is that deductions of money for improper mixing of cementconcrete is valid on the part of the plaintiff since a ration of 1:3.6:8.9 was found substandard upon laboratory test. The test report has not been placed on record by the plaintiff. Mere mentioning of submissions of the parties in the award dated 4/6/1992, which has already been set aside vide order dated 8/5/2002 by the hon'ble Delhi High Court, with respect to cement concrete improper mixing will not prove the case of the plaintiff in the present suit. The plaintiff has not proved the improper mixing.
18.As regards work regarding spindles of sluice valves having not been done by the defendant, the plaintiff has neither produced any photographs nor has proved otherwise that no work was done by the defendant in this regard. Mere mentioning of Suit No. 478/2010 Page No. 12 of 13 submissions of the parties in the award dated 4/6/1992, which has already been set aside vide order dated 8/5/2002 by the hon'ble Delhi High Court, with respect to work regarding spindles of sluice valves will not prove the case of the plaintiff in the present suit. The plaintiff has not proved the work regarding spindles of sluice valves having not been done by the defendant.
In view of the foregoing discussion, the plaintiff has failed to prove its case and thus is not entitled to recover the suit amount. These issues are accordingly decided in favour of the defendant and against the plaintiff.
19. Relief:
In view of the foregoing discussion, the plaintiff has failed to prove his case and thus the suit is hereby dismissed. There are no orders as to costs. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
Announced & signed in the ( Snigdha Sarvaria)
open court on 10.09.2014 Civil Judge/Central05/Delhi
Suit No. 478/2010 Page No. 13 of 13