Delhi District Court
M/S Jainco Buildcon Private Limited vs Delhi Jal Board on 9 January, 2026
CNR No. DLCT010010822024
IN THE COURT OF SHRI DEVENDRA KUMAR SHARMA:
DISTRICT JUDGE (COMMERCIAL COURT)- 03: CENTRAL
TIS HAZARI COURT (EXTENSION BLOCK): DELHI.
CS (COMM) No. 143/2024
In the matter of :-
M/s Jainco Buildcon (P) Ltd.
Through its Authorized Representative/ Director,
Sh. Naresh Jain,
Having its Registered Office At:
3-5, 1st Floor, LSC, BQ Block,
DDA Market, Shalimar Bagh,
New Delhi - 110088
E-mail: [email protected] ......Plaintiff
Versus
1. M/s. Delhi Jal Board
Govt. of NCT of Delhi,
Through its Chief Executive Officer,
Varunalaya Complex, Phase- II,
Karol Bagh, New Delhi - 110005
E-mail: [email protected]
2. The Executive Engineer (Const.) DR-XIV,
M/s Delhi Jal Board,
Govt. of NCT of Delhi,
Having its Office at:
Sewage Pumping Station,
Najafgarh, New Delhi-110043
Email: [email protected]
[Not summoned vide order dated 22.04.2024]
....... Defendants
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 1 of 59
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.01.09
16:47:51 +0530
Date of Institution : 23.01.2024
Date on which Judgment reserved : 26.12.2025
Date on which judgment pronounced : 09.01.2026
SUIT FOR RECOVERY
JUDGMENT
1. Vide this judgment I shall dispose off the suit for recovery of Rs. 69,11,871/- alongwith interest filed by plaintiff against the defendant.
Pleadings of the Parties :-
2. Succinctly stated facts of the case as set out in the plaint are that the plaintiff is a Private Limited Company duly constituted, incorporated and registered under the relevant provisions of The Companies Act, 1956. The suit has been filed through Sh. Naresh Jain, Director of the Plaintiff Company who has been authorized to sign, verify, institute, depose and file the present suit for and on behalf of the Plaintiff Company by virtue of Board Resolution dated 01.03.2021.
3. It has been further averred that the Plaintiff Company is a reputed Contractor and is engaged in the business of laying of peripheral water mains, laying of sewerage line, its repair and maintenance etc. It has been further averred that the Plaintiff, apart from the contracts of private parties, also executes the contracts of various Government departments including Delhi Jal Board (Defendant No.1) etc. and is enlisted as Class-IA (TP) CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 2 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:48:00 +0530 Contractor with the Defendant No.1 and executing various projects allotted/disbursed by the Defendant(s) during the course of business.
4. It has been further averred in the plaint that the Defendant No.1 is a statutory board duly constituted by the Legislative Assembly of Government of NCT of Delhi under the Delhi Water Board Act, 1998, to discharge the functions of water supply, sewerage and sewage disposal and drainage within the NCT of Delhi and the Defendant No. 2 was/is incharge of work for P/L Sewer Line in F&D Block, Mahaveer Enclave, Kailash Puri Extn., Sagarpur and Durga Park in Dwarka Constituency, Delhi (hereinafter referred to as the 'work').
5. It is further averred in the plaint that in the year 2014, the Defendant No.1, through Defendant No.2, had issued a Notice Inviting Tender Bearing No: DJB/EE(C)DR-XIV/2014 dated NIL to invite tender for the completion of above-mentioned work through press NIT bearing No. 02/ (2014-15) and the Plaintiff Company had also filed a tender for the above-mentioned work and was successful in getting the tender being the Lowest-1 (L1) Firm.
6. It has been further averred in the plaint that the above-mentioned work was awarded to the Plaintiff vide Work Order No. 04/ (2014-15) dated 29.12.2014 for a total value of Rs.58,92,17,827/- and the stipulated period for completion of aforesaid work was 30 months. However, extensions were granted by the defendants from time to time in the present case.
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 3 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:48:07 +0530
7. It has been further averred that pursuant to the aforesaid work order, the Defendant No.1, through Defendant No.2, had also executed a Contract Agreement dated 14.01.2015, bearing No. 02/ (2014-15) with the Plaintiff Company with respect to the aforesaid work.
8. It has been further averred in the plaint that the plaintiff company had commenced the aforesaid work with the terms and conditions stipulated in the above referred contract agreement dated 14.01.2015. However, on account of various reasons, the work could not be completed within agreed stipulated period of 30 months and the defendants provisionally extended the time of completion of work till 06.07.2018, firstly, vide letter dated 05.07.2017 and in continuation thereof, vide letter dated 04.09.2018, the time for completion of work was further granted and extended upto 15.04.2019. It has been further averred that the reasons for non-completion of work in time were duly communicated to the defendants by the plaintiff vide letters dated 17.09.2018 and 03.04.2019. Thereafter, the time of completion of work was again extended vide letter dated 15.04.2019 upto 31.12.2019, vide letter dated 20.12.2019 upto 29.04.2020 and thereafter at regular intervals on its own by the defendant on 04.09.2020, 13.10.2020, 17.03.2021, 14.06.2021, 27.12.2021 and 31.12.2021, time was extended upto 31.03.2022.
9. It has been further averred in the plaint that due to onset of Covid-19 pandemic, the Government of India had imposed lockdown in the entire country in the last week of March 2020 initially for a period of 21 days but the same was extended CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 4 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:48:13 +0530 time to time and in the meantime, the Central Government as well as the Delhi Government had issued advisories to all the Government and Private institution(s) to treat the staff on-duty during the aforesaid period of lockdown and to pay full wages to all employees so that the employees may not face any difficulty in their livelihood and accordingly, the plaintiff company had sent a letter dated 30.03.2020 to the defendant no.2 regarding treating the staff on duty during lockdown period and thereafter, the plaintiff company had also sent an email dated 04.04.2020 to the defendant no. 2 notifying the occurrence of Force Majeure event and also informing that the aforesaid work had been suspended rendering the entire work force and machine idle.
10. It has been further averred in the plaint that due to the continuous and prolonged subsistence of Covid-19 epidemic, the Plaintiff company had suffered heavy financial losses and on account of non-availability of labour within the NCT of Delhi region at that time, it was become impossible for the plaintiff to continue with the aforesaid work as per the schedule of the work despite of the best efforts on the part of the Plaintiff.
11. It has been further averred in the plaint that Force Majeure event of epidemic Covid-19, which was happening throughout the nation and its subsistence for more than 60 days in a total period of 120 days, fall within the purview of "Clause 10.5 Force Majeure" and "10.5.1 Non-Political Event" of the above referred Contract Agreement dated 14.01.2015 identifying the 'epidemic' as one of the Force Majeure Event.
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 5 of 59 Digitally signed by Devendra Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:48:19 +0530
12. It has been further averred that considering the above-mentioned facts and circumstances, the plaintiff Company opted for the termination of aforesaid Contract Agreement dated 14.01.2015 due to Force Majeure as per the provisions contained in Clause No. 11.5 of the aforesaid Contract Agreement which authorizes either of the party to terminate the contract by giving a 15 days' notice of intention to terminate and in pursuance of provisions under clause 11.5.1, the plaintiff company vide its letter dated 29.05.2020 had conveyed its intention to terminate the contract containing all necessary information regarding intention to terminate the above referred contract under 'Force Majeure Clause' which was received in the office of Defendant No. 2.
13. It has been further averred in the plaint that soon after the expiry of 15 days' period after its letter dated 29.05.2020 whereby intention to terminate was communicated, the Plaintiff Company vide its letter dated 15.06.2020 had issued the Termination Notice to the Defendants thereby terminating the aforesaid Contract Agreement on account of Force Majeure Event of Covid-19 pandemic and by serving the Termination Notice 15.06.2020 upon the Defendants, the above-mentioned work shall automatically stand terminated and the Plaintiff Company is entitled for all the payments as mentioned in Clause No. 11.5.2 (i),
(ii) and (iii) of the Contract Agreement and subsequent/ other clauses related to the payment of work already done by the Plaintiff.
14. It has been further averred that despite contacting the CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 6 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:48:25 +0530 concerned official(s) of the defendants many times, personally as well as telephonically, the defendants failed to either settle the present matter amicably or to clear the outstanding amount in terms of the aforesaid contract agreement and thus, finding no alternative, the plaintiff company had served upon defendants a statutory Notice dated 29.09.2020, U/s 96 of the Water Board Act, through speed post as well as through E-mail calling upon them to pay/tender a sum of Rs.3,37,12,369/- along with interest and cost towards the work already done and various Running Account (RA) bills submitted by the plaintiff before the termination of the contract under Force Majeure Clause. However, the Defendants have sent a vague response to the aforesaid notices of plaintiff company dated 15.06.2020 and 29.09.2020 through a vague reply dated 06.10.2020.
15. It has been further averred in the plaint after great persuasion, the Plaintiff Company manages to receive only part payments, time to time, towards aforesaid total outstanding dues. After expiry of statutory period in terms of aforesaid notice and after due adjustments of payments received, in order to recover the balance outstanding due of Rs.2,25,72,335.36/- as on 12.02.2021, the plaintiff company has initiated Pre-Institution Mediation Proceedings in terms of Section 12A of Commercial Court Act, 2015, before the DLSA, Delhi High Court, New Delhi, vide Pre-Institution Mediation No. 7/2021, however, during the pendency of aforesaid proceedings before DLSA, Delhi High Court, the Departmental Mediation Committee constituted by the Defendants had also initiated another mediation proceedings with respect to the pending claims of the plaintiff company.
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 7 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:48:32 +0530
16. It has been further averred in the plaint that without prejudice to the rights of the plaintiff, though the Plaintiff company had already terminated the contract agreement in terms of its clause no. 11.5, and was not bound to execute any work further, however, upon the requests made to the Plaintiff time to time, the plaintiff company in good faith for early disbursal of its payments and in terms of clause 10.5.6 of the contract agreement, had carried out certain additional work post-pandemic/ lockdown in the adverse situation where the cost of procuring labours and materials have touched upto the sky.
17. It has been further averred in the plaint that vide minutes of meeting dated 19.07.2021 of the Departmental Mediation Committee of the defendants, which was communicated to the plaintiff through letter dated 13.10.2021, the said mediation proceeding before the Departmental Mediation Proceeding Committee remained unsuccessful.
18. It has been further averred that the plaintiff is also entitled to the charges under the head of "Watch & Ward" and the plaintiff company is maintaining running account with all the contractors who are providing services under the head of "Watch & Ward" to the Plaintiff Company and the respective payments of "Watch & Ward" head have been paid to respective contractors as mentioned in the concerned Ledger Accounts filed along with the plaint.
19. It has been further averred in the plaint that during the pendency of aforesaid mediation proceedings, the Plaintiff CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 8 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:48:40 +0530 Company had also received part payments from the Defendants under above mentioned heads but excluding the payment towards the head of 'Watch and Ward'. However, the following amounts are still outstanding and payable by the Defendants till 30.11.2023:-
S.No. Detail Amount
1. On account of Interest Bill 4,08,090.00
2. On account of Final Bill submitted on 1,64,920.00
01.03.2023 in terms of Clause 11.5.2 (i)
3. On account of Watch & Ward upto 63,38,861.00 30.11.2023 Total 69,11,871.00
20. It has been further averred in the plaint that in terms of Clause 11.5.2 of the Contract Agreement, upon termination of contract under Force Majeure Event, the Engineer-in-Charge was duty bound to issue a Payment Certificate which also includes payments towards the head of cost of protecting and securing the works in terms of clause 11.5.2 (iii) also.
21. It has been further averred in the plaint that since the commencement of aforesaid work, the material procured by the plaintiff for execution of aforesaid work was lying in the custody of the plaintiff and the custody of the same has not been taken back by the Defendants, therefore, in terms of aforesaid clause of contract agreement, the plaintiff has no option but to provide facility of "Watch and Ward" in order to safeguard the said material till the date of filing the present suit. The plaintiff company has taken all the measures to protect the same by deploying adequate number of employees/ security personnel under the head "Watch & Ward".
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 9 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:48:47 +0530
22. It has been further averred in the plaint that apart from the other meetings and communications exchanged between the parties, the Plaintiff had written letter dated 13.04.2021, however, the defendants in contravention to the conditions laid down in Contract Agreement dated 14.01.2015, had declined the claim of the Plaintiff towards cost of protecting and securing the works in terms of clause 11.5.2 (iii) vide its letter dated 17.05.2021. Despite that, the plaintiff had been constantly approaching the concerned official(s) of the Defendants vide its Letters dated 12.10.2021, 15.03.2022, 30.03.2022, 02.05.2022, 18.07.2022, 24.11.2022, 01.03.2023, 11.04.2023, 11.07.2023, 27.07.2023, 07.08.2023, 09.08.2023 & 12.09.2023 and lastly on 01.12.2023 respectively. However, the Defendants have failed to pay any heed and even not bothered to reply the same in any manner. It has been further averred that the Pre-Institution Mediation proceedings before DLSA, Delhi High Court, New Delhi was also failed vide Failure Report dated 22.04.2022. Thus aggrieved by the acts of defendants, the plaintiff has filed the present suit praying for a decree for recovery of Rs.69,11,871/- alongwith pendente lite and future interest @ 18% per annum till date of realization of the suit.
23. It is pertinent to mention here that though the plaintiff had impleaded the Executive Engineer (Const.), DR-XIV, DJB as defendant no.2 in the suit, however, since Executive Engineer does not have any personal liability in the matter, summons were ordered to be not issued to him and were issued to Defendant No.1/DJB only.
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 10 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:48:55 +0530
24. The defendant No.1/DJB has contested the suit by filing detailed written statement. By way of preliminary objection, it has been alleged that suit has been filed by the plaintiff with malafide intention seeking recovery under those heads for which it is not entitled to.
25. On merits, it has been submitted that the provisional extensions of time was given to the Plaintiff considering the genuineness of not able to complete the contract within stipulated time on various reasons and thus, the Defendant / DJB cooperated with the Plaintiff so that the work would be completed without fail but the delay was not attributable to the Defendant/DJB.
26. It has been further alleged that the plaintiff had sent the termination notice dated 15.06.2020 without seeking any requisition from the Defendant and it was a one-sided termination from the Plaintiff side.
27. It has been further averred that the payments for which the plaintiff was entitled to had already been given by the defendant/DJB and it was made clear to the Plaintiff that they are not entitled for any amount whatsoever, more particularly on account of watch and ward and interest and further the plaintiff had to submit the requisite documents with the defendants on account of final bill amounting to Rs.1,64,920/-. The sending of notice by the plaintiff is admitted but the contents are denied.
28. It has been further averred that the Plaintiff had of its own had completed the incomplete work, which he has left of the CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 11 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
2026.01.09 Sharma 16:49:01 +0530 same contract before giving its termination and that the Plaintiff had not done any extra or new work. It has been further submitted that it has already been intimated to the Plaintiff at the time of proceedings before the Mediation that the plaintiff is not entitled for interest Rs.4,08,090/-. It has been further submitted that the Defendants/DJB had already approved the payment of Rs.14,67,220/- on account of interest on delay payments but the interest of Rs. 4,08,090/- which the plaintiff is seeking is for the period of Covid, when it was in full swing and was treated as a period of "Force Majeure" (Act of God) and it was categorically stated that no party is contractually bound for contractual obligations vis-a-vis the payment of interest on delay payment. It has been further submitted that the defendant on various occasion had requested the Plaintiff to submit the requisite documents with the defendants so that the amount, which is being claimed to the tune of Rs. 1,64,920/-, will be released forthwith but the Plaintiff tried to avoid giving of the said documents to the defendants and hence on this ground, the defendants had not cleared the said amount for want of documents on the side of the plaintiff. It has been further submitted that when the claim was filed on 12.01.2021 by the plaintiff before the Defendants, the Defendants had duly replied to the claim No.5 of the Plaintiff, thereby categorically stated that the expenditures on account of watch and ward is the part of items to be executed and therefore, the separate watch and ward is not applicable or liable to be paid by the defendants/DJB meaning thereby the watch and ward was itself included in the work, which was entrusted to the Plaintiff and therefore, the Plaintiff cannot separately claim for the watch and CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 12 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:49:07 +0530 ward. It has been further submitted that taking care of the materials lying at the site is the sole responsibility of the plaintiff and that the Plaintiff cannot claim extra as watch and ward for all the materials lying at the site. Rest of the averments made in the plaint are denied and it is again reiterated that plaintiff is not entitled to any payment as alleged payment can only be made after scrutiny of documents as per the contract agreement after accepting the same by the defendant and in absence of the same the present suit of the plaintiff liable to be dismissed.
29. Plaintiff has filed replication reiterating the averments made in the plaint and denying contra averments made in the written statement. It has been reiterated that in terms of clause 11.5.2 of the contract agreement, the plaintiff company was entitled for any amount spent on 'Watch & Ward' head for the safeguard of material and custody of the same was not taken back by the defendant at the relevant site(s). On merits, it has been averred that there was no need for the plaintiff to seek any requisition from the defendant to terminate the contract agreement on the ground of force majeure event. It has been further averred that the defendant has not disclosed as to which document(s) has not been submitted by the plaintiff alongwith the final bill which was submitted before the defendant on 01.03.2023 in terms of clause 11.5.2(i) amounting to Rs.1,64,920/-. Rest of the averments made in the written statement are denied and it is prayed that suit of plaintiff be decreed as prayed for.
30. From the pleadings of parties, following issues were framed: -
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 13 of 59 Digitally signedDevendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:49:13 +0530
1) Whether plaintiff is entitled to decree for recovery of Rs.69,11,871/- against the defendants, as prayed for?
(OPP)
2) Whether the plaintiff is entitled for interest. If so, at
what rate and for which period? (OPP)
3) Relief.
31. In order to prove its case, plaintiff has examined four witnesses i.e. PW1 Sh. Naresh Jain, Director/AR of Plaintiff Company; PW2 Sh. Gyan Singh; PW3 Sh. Dharam Singh and PW4 Sh. Jitender.
32. PW1 Sh.Naresh Jain has reiterated the facts averred in the plaint in his affidavit Ex.PW-1/A and relied upon following documents: -
S. No. Details of documents Exhibit
1. The attested copy of Memorandum and Article of Ex.PW-1/1 Association of plaintiff company containing Certificate of Incorporation and detail of directors
2. Copy of Board Resolution Ex. PW-1/2
3. Minutes of meetings Ex. PW-1/3
4. Letter of acceptance by defendant no.1 and all Ex. PW-1/4 other applicable, general and other agreed terms and conditions between the parties
5. Office letter dated 30.03.2020 and mail dated Ex. PW-1/5 04.04.2020 alongwith office memorandum dated 19.02.2020
6. The office copy of letter dated 15.06.2020 Ex. PW-1/6
7. The copy of letter dated 26.09.2020, sent by the Ex. PW-1/7 Plaintiff Company to concerned E.E. regarding payment of accrued interest on account of delay in release of due amount of RA Bills, duly received by the Defendant(s) on 28.09.2020
8. The office copy of Legal Notice dated Ex. PW-1/8 CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 14 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:49:19 +0530 29.09.2020 sent by Plaintiff Conepany to the (Colly) Defendant(s) along with Speed Post Receipt, two tracking reports and through e-mail dated 29.09.2020
9. The reply dated 06.10.2020 addressed by the Ex. PW-1/9 Defendant(s) to the Plaintiff Company along (Colly) with one postal envelope in which the said reply was received
10. The copy of the letter dated 08.10.2020, sent by Ex. PW-1/10 Plaintiff Company to the Defendant(s), received by the Defendant(s) on 09.10.2020, regarding handing over the sewerage network under outfall No. 1-17
11. The letter dated 14.10.2020, sent by Ex. PW-1/11 Defendant(s) to Plaintiff Company, received by (colly) the Plaintiff Company regarding extension of validity of bank guarantee along with attachment and envelope
12. The copy of the letter dated 15.10.2020, sent by Ex. PW-1/12 Plaintiff Company to the Defendant(s) received by the Defendant(s) on 15.10.2020 regarding work
13. The letter dated 16.10.2020 sent by Defendant Ex. PW-1/13 to Plaintiff Company along with copy of letter (Colly) dated 09.10.2020 and another letter dated 16.10.2020 regarding extension of date of completion of work
14. The copy of the letter dated 26.10.2020 sent by Ex. PW-1/14 Plaintiff Company to the Defendant(s) referring (Colly) to the termination of contract along with postal receipt
15. The copy of letter dated 26.10.2020 sent by Ex. PW-1/15 Plaintiff Company to the Defendant(s) replying to their letter dated 16.10.2020
16. Letters dated 26.10.2020 Ex. PW-1/16
17. The letter dated 27.10.2020 Ex. PW-1/17
18. The letter dated 25.11.2020 along with copy of Ex. PW-1/18 postal receipt and attachment (Colly)
19. The letter dated 26.11.2020 Ex. PW-1/19
20. The letter dated 15.12.2020 along with envelope Ex. PW-1/20 (Colly)
21. The letter dated 31.12.2020 Ex. PW-1/21
22. The letter dated 07.01.2021 Ex. PW-1/22 CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 15 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:49:25 +0530
23. The letter dated 12.01.2021 along with Ex. PW-1/23 attachment
24. The letter dated 18.01.2021 along with Ex. PW-1/24 attachment (Colly)
25. The letter dated 19.01.2021 Ex. PW-1/25
26. The copy of reply dated 21.01.2021 bearing Ex. PW-1/26 reference no. 2682 and 2691, along with (Colly) envelope
27. The copy of letters dated 22.01.2021 and Ex. PW-1/27 & 27.01.2021 sent by Plaintiff Company to Ex.PW-1/28 Defendant
28. The reply dated 23.02.2021 to letters dated Ex. PW-1/29 19.01.2021 and 27.01.2021 sent by Defendant(s) (Colly) to the Plaintiff Company along with envelope
29. The letter of extension of validity of Bank Ex. PW-1/30 guarantee dated 26.02.2021, sent by the (Colly) Defendant to the Plaintiff Company, along with envelope
30. The letter dated 03.03.2021, sent by the Ex. PW-1/31 Defendant to the Plaintiff Company, referring (Colly) letters of Plaintiff Company dated 25.04.2019 and 12.06.2019 along with envelope
31. The copy of letter dated 05.03.2021, sent by Ex. PW-1/32 Plaintiff Company to Defendant(s) along with (Colly) Reply dated 10.03.2021, sent by the Defendant(s) to the Plaintiff Company qua said letter along with envelope
32. The copy of letter dated 15.03.2021, sent by Ex. PW-1/33 Plaintiff Company to Defendant(s) along with (Colly) mode of sending the said letter and attachment
33. The copy of letter dated 16.03.2021, sent by Ex. PW-1/34 Plaintiff Company to Defendant(s)
34. Replies dated 17.03.2021 Ex. PW-1/35
35. Letter dated 19.03.2021 Ex. PW-1/36
36. Reply dated 19.03.2021 along with envelope Ex. PW-1/37
37. The copy of letters dated 30.03.2021 and Ex. PW-1/38 &
31.03.2021, sent by Defendant(s) to Branch Ex.PW-1/39 Manager of Yes Bank, with a copy to Plaintiff Company
38. The copy of letters dated 31.03.2021, Ex. PW-1/40, 08.04.2021, 13.04.2021, sent by Plaintiff Ex.PW-1/41 & Company to Defendant, along with envelopes Ex.PW-1/42 CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 16 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:49:31 +0530 and attachments respectively
39. The letters dated 05.05.2021 and 17.05.2021, Ex. PW-1/43 & sent by Defendant(s) to Plaintiff Company, along Ex.PW-1/44 with envelope respectively
40. The copy of letter dated 31.05.2021, sent by Ex. PW-1/45 Plaintiff Company to Defendant(s) regarding change in law of G.S.T. along with mode of sending the said letter and attachment
41. The letter dated 04.06.2021, sent by Ex. PW-1/46 Defendant(s) to Plaintiff Company along with (Colly) envelope
42. The copy of letter dated 08.07.2021, sent by Ex. PW-1/47 Plaintiff Company to Defendant(s) referring (Colly) completion of drawing relating to work along with mode of sending the said letter
43. The copy of letters dated 24.08.2021 and letter Ex. PW-1/48 24.08.2021, sent by Plaintiff Company to and Defendant(s), relating to work and joint Ex.PW-1/49 inspection along with mode of sending the said respectively letter
44. The letter dated 25.08.2021, sent by Ex. PW-1/50 Defendant(s) to Plaintiff Company, replying to (Colly) letter dated 24.08.2021 along with envelope
45. The copy of letter dated 12.10.2021, sent by Ex. PW-1/51 Plaintiff Company to Defendant(s) along with (Colly) mode of sending the said letter and attachment
46. The copy of the letter dated 13.10.2021, Ex. PW-1/52 addressed by the Defendant(s) to the Plaintiff (Colly) Company, along with relevant mediation proceedings and documents etc.
47. The copy of letters dated 18.10.2021 and Ex. PW-1/53 01.12.2021, sent by Plaintiff Company to and Defendant(s), along with mode of sending the Ex.PW-1/54 said letter, the letters dated 10.12.2021 and respectively another letter dated 10.12.2021 sent by Defendant(s) to Plaintiff Company regarding change in law of G.S.T. and performance certificate along with envelope
48. The copy of letters dated 13.12.2021 Ex. PW-1/55
49. The copy of letter dated 27.12.2021 Ex. PW-1/56
50. The copy of letter dated 31.12.2021 Ex. PW-1/57
51. The copy of letter dated 03.01.2022 along with Ex. PW-1/58 attachment CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 17 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:49:37 +0530
52. The copy of letter dated 08.02.2022 Ex. PW-1/59
53. The copy of letter dated 28.02.2022 sent by Ex. PW-1/60 Plaintiff Company to Defendant(s) along with mode of sending the said letter and attachment.
54. The letters dated 14.12.2021, sent by Defendants Ex. PW-1/61 to Plaintiff Company
55. The letter dated 30.03.2022 Ex. PW-1/63 (Objected to for want of signatures and stamp of the department.)
56. The letter dated 02.05.2022 Ex. PW-1/64
57. The letter dated 18.07.2022 Ex. PW-1/65
58. The letter dated 01.03.2023 Ex. PW-1/66
59. The letter dated 11.04.2023 Ex. PW-1/67
60. The letter dated 11.07.2023 Ex. PW-1/68
61. The letter dated 27.07.2023 Ex. PW-1/69
62. The letter dated 07.08.2023 Ex. PW-1/70
63. The letter dated 09.08.2023 Ex. PW-1/71
64. The letter dated 12.09.2023 Ex. PW-1/72
65. The letter dated 01.12.2023 (2 Nos.) Ex. PW-1/73 (Colly)
66. The copies of letters dated 15.03.2022 Ex. PW-1/74
67. The copy of letter dated 26.03.2022 Ex. PW-1/75
68. The letter dated 14.12.2022, sent by Ex. PW-1/76 Defendant(s) to the Plaintiff Company, regarding revised date of completion
69. Mediation proceedings along with failure report Ex. PW-1/77 dated 22.04.2022 (Colly)
70. The details of work/material lying in the custody Ex. PW-1/78 of the Plaintiff Company at site relating to Defendant(s)
71. The details of bills/invoices issued by the M/s Ex. PW-1/79 Jitendra, Civil Contractor for the services (Colly) rendered to Plaintiff Company at the relevant site of Defendant along with invoices and ledger account of M/s Jitendra showing the payment and outstanding balance for the period of July 1, 2017 to March 31, 2018
72. The details of bills/invoices issued by the M/s Ex. PW-1/80 Jitendra, Civil Contractor for the services (Colly) rendered to Plaintiff Company at the relevant site CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 18 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
2026.01.09 Sharma 16:49:43 +0530 of Defendant along with invoices and ledger account of M/s Jitendra showing the payment and outstanding balance for the period of April 1, 2018 to March 31, 2019
73. The details of bills/invoices issued by the M/s Ex. PW-1/81 Jitendra, Civil Contractor for the services (Colly) rendered to Plaintiff Company at the relevant site of Defendant along with invoices and ledger account of M/s Jitendra showing the payment and outstanding balance for the period of April 1, 2019 to March 31, 2020
74. The details of bills/invoices issued by the M/s Ex. PW-1/82 Jitendra, Civil Contractor for the services (Colly) rendered to Plaintiff Company at the relevant site of Defendant along with invoices and ledger account of M/s Jitendra showing the payment and outstanding balance for the period of April 1, 2020 to March 31, 2021
75. The details of bills/invoices issued by the M/s Ex. PW-1/83 Jitendra, Civil Contractor for the services (Colly) rendered to Plaintiff Company at the relevant site of Defendant along with invoices and ledger account of M/s Jitendra showing the payment and outstanding balance for the period of April 1, 2021 to March 31, 2022
76. The details of bills/invoices issued by the M/s Ex. PW-1/84 Jitendra, Civil Contractor, Dharam Singh, Civil (Colly), Contractor and Gyan Singh, Civil Contractor for Ex.PW-1/85 services rendered to Plaintiff Company at the (Colly) and relevant site of Defendant along with invoices Ex.PW-1/86 and ledger account of M/s Jitendra, M/s Dharam (Colly) Singh and M/s Gyan Singh showing the payment and outstanding balance for the period of April 1, 2022 to March 31, 2023
77. The details of bills/invoices issued by the M/s Ex. PW-1/87 Jitendra, Civil Contractor, Dharam Singh, Civil (Colly) Contractor for services rendered to Plaintiff Company at the relevant site of Defendant along with invoices and ledger account of M/s Jitendra and Dharam Singh showing the payment and outstanding balance for the period of April 1, 2023 to March 31, 2024
78. The letter dated 05.07.2017 Ex. PW-1/88
79. The letter dated 04.09.2018 Ex. PW-1/89
80. The letter dated 17.09.2018 Ex. PW-1/90 CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 19 of 59 Digitally signed by Devendra Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:49:51 +0530
81. The letter dated 03.04.2019 Ex. PW-1/91
82. The letter dated 15.04.2019 Ex. PW-1/92
83. The letter dated 20.12.2019 Ex. PW-1/93
84. The letter dated 04.09.2020 Ex. PW-1/94
85. The letter dated 13.10.2020 Ex. PW-1/95
86. The letter dated 17.03.2021 Ex. PW-1/96
87. The letter dated 14.06.2021 Ex. PW-1/97
88. The certificate U/s 65B of Indian Evidence Act, Ex. PW-1/98 1872
89. The certificate U/s 65B given by the counsel for Ex.PW-1/99 Plaintiff Company
33. The PW1 was cross-examined at length in respect to contract agreement; procurement of permissions from other departments; termination notice dated 15.06.2020; percentage of the work done; delay in completion; communications exchanged between the parties; compliance made in removal of defects; laid down of sewer lines; measurement book; deficiency in submitting the documents for clearance of the final bill; force majeure clause and its application; entitlement of interest for delayed payment;
handing over the project; responsibility of incurring costs of watch and ward liability; extent of work completed by the plaintiff; the availability of the remaining material and its storage; repayment of unused material and other material aspects of the defense of the defendant.
34. PW2 Sh. Gyan Singh has deposed that he knew plaintiff as he was having business relations with the plaintiff company and that he worked with the plaintiff company during the year 2023. He further deposed that he used to guard the Jal Board pipes, keep them clean, sprayed water as and when required CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 20 of 59 Digitally signed by Devendra Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:49:58 +0530 and raised bills for work done for the plaintiff. He identified the signatures at Point A on invoices no. 185 & 186, both dated 31.03.2023 (part of Ex. PW-1/85 (colly- pages 924 and 925).
35. During his cross-examination, PW2 has testified that he used to do the work as detailed in his examination in chief only and no other work and that he was not a builder. He has further testified that he had his own contract business wherein he supplies labour to persons who approached him for it. He has further testified that he was asked by the supervisor of the plaintiff company to supply labour and that he also used to do labour work alongwith persons supplied by him. He has further testified that he had discharged his work at F&D block, Mahavir Enclave in the year 2023 for about two months i.e. March and April, 2023 and that he had supplied three persons including himself for the work. He has further testified that supplies/material lying at the spot belong to plaintiff company and that he was not aware if supplies/material of any other company, besides the plaintiff, was also lying at the spot or not. He has denied the suggestion that in the month of March and April, 2023, there were no pipes of plaintiff company lying at the spot. He has further deposed that the pipes lying at the spot had been marked as that of "Delhi Jal Board" and that he was not aware who owned the pipes as he was only doing the duties assigned to him by the plaintiff. He has denied the suggestion that the pipes only have marking of the manufacturer and not of the department which procured it i.e. Delhi Jal Board and that neither he nor any labour deputed by him did the work of guarding the pipes etc., on behalf of plaintiff, as deposed by him in his examination in chief. He has also denied CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 21 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:50:04 +0530 that invoices no. 185 & 186, both dated 31.03.2023 (part of Ex. PW-1/85 (colly- pages 924 and 925), are forged and fabricated. He has further testified that the said invoices were prepared at his instance by a person from cyber cafe and he cannot read and write in English. He has further testified that he had given details to the person from cyber cafe and the invoices were prepared by said person at his instance. He has admitted that he cannot read the contents of invoices as they are in English language and voluntarily stated that he can make out the price mentioned upon the invoices as that which was claimed by him from the plaintiff. He has further testified that he did not do the work of checking how the water flowed through the pipes and that he does not have a formal office or any GST number and he was not aware whose GST number was reflected from invoices no. 185 & 186, both dated 31.03.2023 (part of Ex. PW-1/85 (colly- pages 924 and
925). He has further deposed that he also has no knowledge how address of a registered office is mentioned on said invoices and further denied the suggestion that invoices no. 185 & 186, both dated 31.03.2023 (part of Ex. PW-1/85 (colly- pages 924 and 925) have been forged and fabricated in his name by the plaintiff company or that he was deposing falsely at the instance of plaintiff company.
36. PW3 Sh. Dharam Singh has deposed that he knew plaintiff as he was having business relations with the plaintiff company and that he worked with the plaintiff company during the year 2023. He has further deposed that he used to guard the Jal Board pipes and also did any other work told by the officials of the plaintiff i.e. to have the material delivered at the spot kept CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 22 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:50:10 +0530 safely. He has further deposed that he did not raise bills for work done for the plaintiff and the plaintiff made payment to him by cheque. He identified the signatures at Point A on invoice no. 2022- 23/070 dated 02.03.2023, (part of Ex. PW-1/86 (colly- pages 926), invoices no. 2022-23/071 dated 31.03.2023, (part of Ex. PW-1/86 (colly- pages 930), invoices no. 2023-24/072 dated 03.05.2023, (part of Ex. PW-1/86 (colly- pages 932), invoice no.
2023-24/073 dated 05.06.2023, (part of Ex. PW-1/86 (colly- pages
933), invoice no. 2023-24/074 dated 03.07.2023, (part of Ex. PW-1/86 (colly- pages 934),invoice no. 2023-24/078 dated 03.08.2023, (part of Ex. PW-1/86 (colly- pages 935), invoice no. 2023-24/081 dated 03.10.2023, (part of Ex. PW-1/86 (colly- pages
939),invoice no. 2023-24/083 dated 06.11.2023, (part of Ex. PW-1/86 (colly- pages 940), invoice no. 2023-24/084 dated 07.12.2023, (part of Ex. PW-1/86 (colly- pages 941).
37. A Court question was put to the witness that earlier he had stated that he had not raised invoices and later he had identified his signatures on above noted invoices to which he replied that he could not understand the question put to him earlier.
38. During his cross-examination, the PW3 has testified that he was B.Sc graduate from Mahoba District, Bundelkhand University and can read and write in English language but he was not very fluent in doing so. He has further testified that he worked for his father only and was not doing any independent work and that he was also not doing work of supply of labour. He has further testified that he does not have any firm in his own name CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 23 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
2026.01.09 Sharma 16:50:17 +0530 nor does he has any GST number or registered office address and that he does not have knowledge how GST number and registered office address was mentioned on invoices detailed in his examination in chief. He has further testified that the letter head on which invoices have been printed was got prepared by him from a printer and that he was unable to read the handwritten description of products on the invoices. He has further testified that he did not prepare invoices himself but had only put his signatures thereupon. he has further testified that he used to come to the site rarely as his father used to look after the work at site and that he had signed invoices at the instance of his father. He has further testified that he had no knowledge of the work regarding which the invoices were issued and further denied that he was deposing falsely at the instance of his father/plaintiff company.
39. PW4 Sh. Jitender has deposed that he knew plaintiff as he was having business relations with the plaintiff company. He has further deposed that he worked with the plaintiff company during the year 2017 and that he used to guard the Jal Board pipes and also did any other work told to him the officials of plaintiff i.e. to have the material delivered at the spot kept safely. He has further deposed that he used to raise bills as plaintiff made payment to him by way of cheque. He identified his signatures at point A on all invoices attached with list Ex. PW-1/79 (Colly), Ex. PW-1/80 (colly), Ex. PW-1/81 (colly), Ex. PW-1/82 (colly), Ex. PW-1/83 (colly), Ex. PW-1/84 (colly) and Ex. PW-1/87 (colly).
40. During his cross-examination, the PW4 has testified CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 24 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:50:24 +0530 that he was 7th fail and cannot read and write in English language. He has further testified that the invoices were prepared by any person from his village who was able to read and write in English and that due to this reason, the invoices had been prepared by different persons. He has further testified that he only used to check amount written on each invoice to see whether the invoice was correct or not and that he had no knowledge as to the content/description of work detailed on each invoice. He has further testified that he does not have any firm in his own name nor does he has any GST number or registered office address. He has further testified that he does not have knowledge how GST number and registered office address was mentioned on invoices detailed in his examination in chief. He has further testified that the letter head on which invoices had been printed was got prepared by him from a printer and that he used to do work himself and also supplied labour. He has further testified that he worked for the plaintiff company from year 2017 and continued to work till 2023. He was unable to give details of work done by him for plaintiff from the year 2017 till 2023 and further testified that he used to keep a rough note of work done by each labour and voluntarily stated that he had not preserved the said record since there was no work since last about one year. He has denied the suggestion that no work could have been done by him after year 2022 as plaintiff had stopped work in the year 2022 and voluntarily stated that he continued to work till 30.09.2023. He was not aware if the material lying at the spot belonged to plaintiff company or Delhi Jal Board and denied the suggestion that he was deposing falsely at the instance of plaintiff company.
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 25 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:50:30 +0530
41. No other witness was examined on behalf of plaintiff and, therefore, PE was closed.
42. In order to prove their defence, defendant has examined only one witness i.e. Sh. Parveen Parashar, Assistant Engineer, EE(C)DR-XIV, Delhi Jal Board, as DW1. He has reiterated the facts averred in the written statement in his affidavit Ex.DW-1/A and relied upon following documents:-
S.No. Details of documents Exhibit
1. The letter dated 21.01.2021 written by the Ex.PW-l/D1 defendant/DJB to the plaintiff company
2. The printout of minutes of meeting of the Ex.DW-1/2 defendant dated 19.07.2021, with respect to the work of "P/L Sewer Line in F&D Block, Mahavir Enclave, Kailash Puri Extension, Sagarpur and Durga Park in Dwarka Constituency
3. The letter dated 09.08.2023 written by the Ex.PW-1/D2 defendant/DJB to the plaintiff company
4. The letter dated 03.06.2024 written by the Ex.PW-1/D3 defendant/DJB to the plaintiff company
5. The certificate U/s 65(B) of the Indian Evidence Ex.DW-1/5 Act
43. The DW1 was cross-examined at length in respect to his authorization to depose on behalf of the defendant; awareness of the work order in the present case; quantum of sanctioned/released payment; imposition of penalty upon the plaintiff for delay in execution of work; measurement book;
laying of pipeline; quantum of work/extra work done by plaintiff; formal approval of extra work; procedure laid down by DJB to lay internal sewer lines; performance bank guarantee; release of security deposit; competency of DW1 to depose in terms of the CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 26 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:50:36 +0530 office order; additional work perform by the plaintiff after invoking of force majeure clause and its payment; total work done by the plaintiff; reduction of work; delayed approval of the work after the award of contract; intimation regarding the goods lying with the plaintiff under watch and ward at the costs of the plaintiff; stand of the defendant for taking possession of the unutilized goods etc.
44. No other witness was examined on behalf of the defendant and, therefore, DE was closed.
45. Arguments were addressed by Sh.R.D. Sharma, counsel for plaintiff as well as Sh.Naresh Sharma, counsel for defendant who reiterated averments made in plaint and written statement respectively in support of their arguments. Written submissions and judgments were also filed on behalf of plaintiff.
46. The main submissions of the counsel for the plaintiff are :-
(a) That the plaintiff completed the work as per schedule, however, the defendant did not make the payment of the final bill i.e. 44th RA Bill for a sum of Rs.1,64,920/-, hence, defendant is liable to pay the due amount alongwith the interest for delayed payment.
(b) that the defendant did not take back the custody of material belonging to the defendant in terms of Agreement Ex.PW1/4, therefore, the plaintiff is entitled for the payment of Watch and Ward.CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 27 of 59 Digitally signed
Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:50:43 +0530
(c) That the statement of DW1 is not admissible in law as he is not a competent/authorized person in terms of circular dated 22.10.2024, Ex.P1.
(d) That the defendant has not produced any evidence in support of the claim that plaintiff has filed the present suit under those heads for which he is not entitled to.
(e) That the extensions were duly applied and granted by the defendant alongwith stipulation for entitlement of escalation costs.
(f) That the intention to terminate the contract and notice of termination of contract was legally done in terms of Clause 10.5, 11.5.1 and 11.2.2 of the GCC, therefore, the termination was legal and valid.
(g) That after the termination of contract on account of force majeure, the plaintiff was not bound to complete the work in any manner.
(g) That the defendant has failed to pay the due amount in terms of letter dated 27.07.2023, Ex.PW1/69.
(h) That the stand taken by the defendant regarding the non-payment of Watch and Ward is contrary to the terms of the agreement and the defendant has failed to give any legal and valid explanation for non- payment.
(i) That the plaintiff has examined the contractors (PW2 to PW4) who had provided the services of Watch and Ward who have proved the bills and the payments to them were made through online transfers after making statutory deductions which are clearly CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 28 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:50:50 +0530 reflected in the statement of account filed by the plaintiff which remained unchallenged.
(j) That the defendant has failed to bring on record any evidence that if balance pipe was lying on the relevant site then why they did not answer the plaintiff's letters.
(k) That the plaintiff has also done extra work in terms of change in the original work allotted and the same has not been disputed by DW1 in his testimony.
(l) That the performance guarantee submitted by the plaintiff as well as the security deposit deducted from the bills were also released which established that plaintiff has fully performed the work to the best satisfaction of defendant.
(m) That the defendant has failed to act in legal manner and not discharged its liability in terms of Ex.PW1/4 and committed the default of not paying the legal and valid payment of the plaintiff.
47. It is thus prayed that suit of plaintiff be decreed as prayed for.
48. Per contra, the main contentions of the counsel for defendant are :-
(a) That sending Termination Notice dated 15.06.2020 by the plaintiff to the defendant without seeking any requisition from the defendant/DJB was one sided termination from the plaintiff company.
(b) That the plaintiff company has failed to submit the
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 29 of 59
Digitally signed
Devendra by Devendra
Kumar Sharma
Kumar Date:
Sharma 2026.01.09
16:50:57
+0530
requisite documents with the defendant for claiming the amount of final bill, whose reference has been specifically given in Ex.DW1/3 and also in letter dated 03.06.2024, Ex.DW1/4.
(c) That the plaintiff had not done any extra or new work.
(d) That the plaintiff is not entitled for interest amount of Rs.4,08,090/- as the same was for Covid period when it was in full wing and the same was treated a period of 'Force Majeure' . Further, no period for which the interest has been sought has been mentioned.
(e) That the plaintiff had wrongly sought amount of Rs.63,38,861/- on account of '"Watch and Ward" as the same was part of the items to be executed and the separate watch and ward is not applicable or liable to be paid. It has been further submitted that the it was the responsibility of the plaintiff for which it cannot claim extra from the defendant. That the three witness i.e. PW2 to PW4 examined on behalf of the plaintiff to prove the amount of "Watch and Ward"
were tutored one and it was already made clear by the defendant vide its letter dated 21.01.2021 (Ex.PW1/D1) that no separate "Watch and Ward" is applicable to the plaintiff company.
(f) That the PW1 has admitted that the responsibility of watch and ward continues to remain with the contractor/plaintiff company till the handing over of the project and when it was asked to PW1 that as to CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 30 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:51:03 +0530 whether the project was finally handed over to the defendant department/DJB in March, 2022, the said witness had categorically stated that the project is yet to be handed over to the department/DJB.
(g) That the responsibility of the defendant was only to initiate proceedings for permission from different departments by writing letters to them and thereafter the follow up action were taken by the plaintiff. That no written communication was made by plaintiff to the defendant if the Government agencies were not co-operating with the plaintiff, therefore, plaintiff cannot put blame on the defendant for delay in procuring permission. The said fact has been admitted by the PW1 in his cross-examination.
(h) That the plaintiff had failed to submit the complete and legible drawings in response to letter dated 16.10.2020, Ex.PW1/13 sent by defendant which was regarding the rectification of work at different location.
(i) That from the cross-examination of PW2, PW3 and PW4 it is brought out that the said witnesses knew nothing about the nature of the work done and even the invoices were seems to be forged and fabricated and therefore, the plaintiff is not entitled for any amount whatsoever on account of "Watch and Ward".
49. Thus, it is prayed that suit of the plaintiff be dismissed.
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 31 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:51:09 +0530
50. In rebuttal, counsel for plaintiff has submitted additional written submissions wherein he had given calculation of the interest amount of Rs.4,08,099/-. It has been further submitted that the interest as per the Clause 12.2.1 and 12.2.2 is payable on all delayed payments irrespective of any rider (Covid Period) or otherwise as defendant is contractually bound to comply with the contractual provisions of Contract Agreement executed between plaintiff & defendant. With respect to claim of Rs.1,64,920/- on account of final bill, it has been submitted that the copy of complete CMB of Final Bill 44th i.e. forwarding letter dated 01.03.2023 is Ex.PW1/66 and the relevant page of book is CMB 32 of the measurement book which is the RAB (Final Bill). It has been further submitted that in the cross-examination of DW1 dated 23.05.2025, it has been admitted that all the items mentioned at S.No.E119.2.1 at page no.640 pertains to laying of pipeline by the plaintiff. As such, it is duly admitted that measurement referred to in the final bill are for the actual work executed at the site as desired by defendant. It has been further submitted that in line with Clause 10.5.4 of the Contract Agreement, plaintiff is not under any obligation to perform any such task as desired vide letter dated 03.06.2024 of the defendant. Therefore, the plaintiff is entitled for final bill submitted on 01.03.2023 in terms of Clause 11.5.2(I). With respect to claim on account of Watch & Ward upto 30.11.2023, it has been submitted that the plaintiff in support of his claim of Rs.63,38,861/- has filed various documents which are Ex.PW1/79 (Colly) to Ex.PW1/87 (Colly) which contains the summary of the bills raised by the respective contractors, their respective bills and the statement of CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 32 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:51:15 +0530 account showing the payments made by the plaintiff to the respective contractors. It has been further submitted that the plaintiff has paid the respective contractors the amount which falls under the category of "Watch and Ward" and the plaintiff had examined PW2 to PW4 i.e. contractors who provided labours for "Watch and Ward" of the material at different sites of the project to the plaintiff and all the contractors have received the payment from the plaintiff for providing services upto 30.11.2023 and that none of the contractos objected the quantum of payment received or any discrepancy raised by them in their testimony. The details of other contracts have been given where the plaintiff and defendant no.1 are party to the agreement and it is stated that in the said contracts the defendant have paid the amount under the head of "Watch and Ward".
51. In rebuttal arguments filed on behalf of the defendant, it has been submitted that in letter, Ex.PW1/D1, it has been clearly stated that the above mentioned expenditure of watch and ward is included in the rates quoted by the agency, therefore, separate watch and ward will not be given and it will be a part of the items and this fact was well within the knowledge of the plaintiff; that there is no clause in the whole contract agreement that the separate watch and ward will be given to the contractor. It has been further submitted that not a single letter has been placed by the plaintiff company on the court record wherein it has been written that the DJB will pay the final bill on the handing over over the balance material; that the witnesses brought by the plaintiff i.e. PW2 to PW4 are not trustworthy and had given the CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 33 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
2026.01.09 Sharma 16:51:21 +0530 baffling statements during their cross-examination. It has been further submitted that by virtue of document Ex.PW1/78, the plaintiff tried to demonstrate that on a particular date, this much length of pipes are lying at his store, however, the said document is not the document of the defendant nor there is signature of any of the officials of the DJB. Thus, it is prayed that suit of the plaintiff be dismissed.
52. I have heard learned counsels for parties and my findings on aforesaid issues is as under:-
ISSUE NO.1:-
Whether plaintiff is entitled to decree for recovery of Rs.69,11,871/- against the defendants, as prayed for? (OPP)
53. Onus to prove this issue was upon the plaintiff. In order to prove its entitlement for the recovery of the suit amount, the plaintiff has claimed the amounts in various heads i.e. (i) a sum of Rs.4,08,090/- on account of Interest Bill, (ii) a sum of Rs.1,64,920/- on account of Final Bill submitted on 01.03.2023 in terms of Clause 11.5.2(i) and (iii) a sum of Rs.63,38,861/- on account of Watch & Ward upto 30.11.2023. In support of its claim, the plaintiff has examined four witnesses i.e. PW1 Sh.
Naresh Jain, Director/AR of Plaintiff Company; PW2 Sh. Gyan Singh; PW3 Sh. Dharam Singh and PW4 Sh. Jitender. My findings therefore, would be claim wise separately.
Claim No.1 - On account of Interest Bill
54. The plaintiff has claimed interest of Rs.4,08,090/- on CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 34 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:51:28 +0530 account of delayed payment and the calculation has been given as under:-
RA Bill No. Date of Bill Date of Amount Delay in Interest Payment (Rs.) days 36th 09.03.2020 02.11.2020 51,34,133/- 148 days 2,08,179/- 37th 31.03.2020 02.11.2020 44,86,735/- 126 days 1,54,885/- 38th 10.09.2020 13.01.2021 46,95,593/- 35 days 45,026/-
TOTAL 4,08,090/-
55. The defendant has challenged the aforesaid claim on the ground that no details has been mentioned i.e. the period for which the interest amount has been sought and further submitted that plaintiff is seeking interest for the Covid period when it was in full swing and was treated as a period of "Force Majeure" and that no party is contractually bound for contractual obligation vis-
a-vis the payment of interest on delayed payment for which they are not entitled to.
56. In this regard, it has been submitted by the Counsel for the plaintiff that as per Clause 12.2.1 and 12.2.2, the interest @ 10% per annum is payable on all payments delayed by the defendant for period of more than 90 days irrespective of any rider (Covid Period) or otherwise as defendant is contractually bound to comply with the contractual provisions of Contract Agreement executed between plaintiff and defendant.
57. There is no denial on behalf of any of the parties regarding the terms of contract Ex.PW1/4. In the entire cross- examination of PW1, except the defence that it was pandemic period, there was no question regarding the rate of interest as CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 35 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
2026.01.09 Sharma 16:51:36 +0530 contemplated in the contract Ex.PW1/4 @ 10% per annum after 90 days of the submission of the bill.
58. The relevant clause of the contract Ex.PW1/4 is reproduced as under for ready reference:-
"12.2Payments of running bills 12.2.1 The payment of the monthly running bill for the Works shall be released in 90 days from the date of recording of pay order. No excuse for delay in completion of work/ prolongation of the Contract shall however be entertained on account of the reason of delay in payment. The bidder therefore, must take into consideration of its financial capability to carry out and to continue the work without any hindrances.
12.2.2 In the event of the failure of Employer to release payment as per clause 12.2.1, the Employer shall be liable to pay interest @ 10% per annum on net payable amount computed for period beyond 90 days. Provided always, that no interest shall be payable on any amount disallowed or disputed by the Engineer-in-Charge or the Employer, even if such amount is later on determined to be payable to the Contractor, as a result of any process resorted to for the settlement of the dispute as per Contract."
59. Otherwise also, this bill is for the work prior to the period of Covid. Even in the notification declaring the Covid and consequent Force Majeure situation, there was no order of suspension of interest being accrued on account of delayed payment. The aforesaid clauses makes it clear that there was no dispute raised regarding the said bills against which the interest amount has been claimed in the pleadings or in the evidence.
60. Apart from that, vide Ex.PW1/28 the computation of the interest has been revised as Rs.4,06,974/-. This claim of CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 36 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:51:43 +0530 interest has been admitted to be correct on behalf of defendant vide its letter dated 23.02.2021 Ex.PW1/29 wherein it has been specifically mentioned that "regarding the second claim for amounting to Rs.4,06,974/- (against RA Bills No.36, 37 and 38) received vide letter dated 27.01.2021, the same has been checked and verified by Divisional Accounts Section" and same is stated to have been informed to the plaintiff firm to get it accepted. Thus, by own letter defendant has accepted the correctness of the claim and therefore, it does not lie good in the mouth of defendant now to contest that on account of pandemic period, no interest is payable without raising any such issue at the time of communication between the parties. Further, vide letter dated 17.03.2021-Ex.PW1/35, letter dated 19.03.2021- Ex.PW1/36 and letter dated 05.05.2021- Ex.PW1/43, the same position has been reiterated asking the plaintiff firm to send his representative and finally admitting the interest for an amount of Rs.4,06,963/-. Even the consensus regarding this interest amount of Rs.4,06,963/- was arrived at in the Memorandum of Meeting of Mediation Committee vide Ex.PW1/52 (Colly) dated 19.07.2021 which was concluded with the observations that claim of the parties cannot be finalized in piecemeal. Thus, from the above documents, no scope is left even from own admission of the defendant, that the plaintiff firm was entitled for a claim of interest of Rs.4,06,963/-.
61. It is settled law that admitted facts need not be proved and in this regard a reference may be had to the provisions of Indian Evidence Act and the relevant provisions U/s 58 of the Indian Evidence Act is reproduced as under:-
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 37 of 59 Digitally signedDevendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:51:50 +0530 "58. Facts admitted need not be proved:- No fact need to proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:-
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
62. As a matter of fact the interest demanded vide letter dated 19.01.2021 Ex.PW1/25 alongwith the aforesaid interest for subsequent period in subsequent letters was reconciled by the defendant and was later on paid.
63. Therefore, from the evidence available on record, as discussed hereinabove, the plaintiff has been able to prove its case for payment of interest i.e. Rs.4,06,963/- on preponderance of probability. This claim is decided accordingly in favour of the plaintiff.
Claim No.2 - On account of Final Bill submitted on 01.03.2023 in terms of Clause 11.5.2(i)
64. It is alleged on behalf of the defendant that the plaintiff company has failed to submit the requisite documents with the defendant for claiming the amount of final bill, whose reference has been specifically given in Ex.DW1/3 and also in letter dated 03.06.2024, Ex.DW1/4.
65. The claim no.2 of the plaintiff has been disputed on the ground that the bill Ex.PW1/66A (Colly) (also Ex.PW1/66) could not be cleared as the plaintiff despite repeated demand vide CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 38 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:51:56 +0530 various letters including letter dated 09.08.2023 Ex.PW1/D2 and letter dated 03.06.2024 Ex.PW1/D3 has failed to submit GIS Base Map for updating in Mapping Cell, all dia pipes reconciliation statement and some documents as required for finalization of final inspection report.
66. There is no denial regarding the submission of the bill Ex.PW1/66A (also Ex.PW1/66) for an amount of Rs.1,64,920/- on 02.03.2023. The entire dispute is regarding field inspection after submission of Maps and certain documents. As per case of the defendant, the entire project was handed over in March, 2022. In the cross-examination of PW1, the plaintiff has been confronted with the question that the requisite documents were to be submitted by the plaintiff but no specific documents has been pointed out in the entire cross-examination of PW1 which was not submitted by him except the letter Ex.PW1/D2 and Ex.PW1/D3 and witness in reply to the letter Ex.PW1/D3 has testified that the documents as detailed in Ex.PW1/D3 has not been submitted. However, when DW1 was cross-examined, he himself admitted that the performance bank guarantee is released only after overall performance and to the full satisfaction of the defendant department and he further admitted that in the present case the defendant has released the performance bank guarantee to the plaintiff after completion/ execution of the awarded work. He has further admitted that even the security deposit has already been released after the lapse of defect liability period. Thus, from the own admission on behalf of the defendant, it is clear that the said objection pertaining to release of amount vide bill Ex.PW1/66 / PW1/66A are only for the sake of objection after CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 39 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:52:04 +0530 releasing the performance bank guarantee as well as security amount. When the defendant itself has released the performance bank guarantee as well as security amount, it would be deemed that the said release was after satisfaction of the work already done and therefore, now non-release of the amount of Rs.1,64,919.84 against claim no.2 appears to be without justification. The plaintiff has otherwise been able to prove on preponderance of probability of its entitlement regarding the said amount. This claim is also decided accordingly in favour of the plaintiff.
Claim No.3 - On account of Watch & Ward upto 30.11.2023 :-
67. In the present case, the admitted position of the fact is that vide contract Ex.PW1/4 the plaintiff has undertaken to carry out the laying of the sewer pipe. The total cost of the tender amount was fixed as Rs.58,92,17,827/-. The period for the completion of work was 30 months. The scope of work was fixed the laying of sewer lines for approximately 72 Kms. Ultimately the work/ contract was awarded in favour of the plaintiff.
68. In the contract executed between the parties, the general terms and conditions were settled including the contract price which was termed as agreed price per executing the work, cost which includes all expenditure reasonably incurred or to be incurred by the contractor whether on or off the site with the defects liability period.
69. There was also stipulation regarding the meaning of employer of defendant i.e. DJB which was defined as through its CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 40 of 59 Digitally signed by Devendra Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:52:10 +0530 Chief Executive Officer or any other officer so nominated by the Chief Executive Officer and shall include their legal successors and permitted assignees. As per stipulation between the parties through Ex.PW1/4, the Engineer-in-Charge was the person responsible for signing the contract, supervision of the contract, administration of the contract, release of the payments, as per contract provisions and taking other decisions like extension of time, imposition of damages etc.
70. In the present case, according to the plaintiff, due to pandemic he was unable to continue with the performance of the contract while defendant has taken a defense that despite the pandemic, it was for the plaintiff to complete the performance of the contract upon the agreed terms and conditions including the payment of watch and ward expenses.
71. In this regard, the terms of the contract/ general conditions of contract becomes relevant and the relevant conditions are reproduced for ready reference as under:-
10.1 Suspension of Work 10.1.1
(i) The Contractor shall within 3 days of receipt of the order in writing of the Engineer-in-Charge. whose decision shall be final and binding on the Contractor) suspend the progress of the work or any part thereof for such time and in such manner as the Engineer-in-Charge may consider necessary so as not to cause any damage the work already done or endanger the safety in general thereof for any of the following reasons:
a. on account of any default on the part of the Contractor or;
b. for proper execution of the Works or part thereof for reasons other than the default of the Contractor;
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 41 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:52:17 +0530 c. for safety of the Works, public and or public property, or d. to avoid hindrance to other works; or e. as communicated by Engineer-in-Charge for any other reason.
The Contractor shall, during such suspension, properly protect and secure the Works to the extent necessary and carry out the instructions given in that behalf by the Engineer-In-charge.
(ii) If the suspension is ordered for reasons (b), (c), (d) or (e) in sub-Para (i) above:
a. The Contractor may be granted on merits an extension of time equal to the period of every such suspension plus 25% or 1 month, whichever is less, of period for mobilization and demobilization, b. Further, the Contractor shall be compensated for any variation in price of material, labour, etc. as per provisions of clause 14.1 & 14.2........."
10.4 Time extensions for delay 10.4.1 The time allowed for execution of the Works as specified in the Special Conditions of Contract or the extended time in accordance with these conditions shall be the essence of the Contract. The execution of the Works shall commence from the 10th calendar day or such time period as mentioned in Work Order. Where the Contractor commits default in commencing the execution of the Works, the Employer shall without prejudice to any other right or remedy available in law, be at liberty to forfeit the earnest money & performance guarantee absolutely.
10.4.2 If the Works be delayed by:
(i) Force majeure as defined under clause 10.5, or
(ii) Delay on the part of other contractors or suppliers engaged by Engineer-in-Charge executing some other work not forming part of the Contract, or
(iii) Non-availability of stores, if provided by Employer or
(iv) Non-availability or break down of tools and plants, if being supplied or supplied by the Employer, or
(v) Non-availability of Site as per clause 2.4
(vi) Any other cause, but not including predictable events such as rainy season, clearance of site, etc. which in the opinion of the Engineer-in-Charge is CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 42 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
2026.01.09 Sharma 16:52:26 +0530 beyond the Contractors control.
Then upon the happening of any such event causing delay, the Contractor shall within 7 (seven) days give notice thereof in writing to the Engineer-in-Charge but shall nevertheless use his best endeavors to prevent or make good the delay and shall undertake all delay mitigation measures to the satisfaction of the Engineer-in-Charge before proceeding with the Works. If neither Parties issues notice regarding the event within 7 (seven) days of occurrence of such event, the said event shall be deemed not to have occurred and the Contract will continue to have effect as such.
It shall be the responsibility of the Contractor to record any hindrance and reasons thereof in the PMS within 7-(seven) days of occurrence of such event.
Neither Parties shall by reason of such event be entitled to terminate the Contact or have claim for damages against the other in respect of such non-performance or delay in performance except as may be provided under provisions of clause 11.1.
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10.5 Force Majeure As used in this Contract, the expression "Force Majeure" or "Force Majeure Event" shall mean occurrence in India of any or all of Non-Political Event, Indirect Political Event and Political Event, as defined in clauses 10.5.1, 10.5.2, and 10.5.3 respectively, if it affects the performance by the Parties claiming the benefit of Force Majeure (the "Affected Party") of its obligations under this Contract and which act or event
(i) is beyond the reasonable control of the Affected Party, and
(ii) the Affected Party could not have prevented or overcome by exercise of due diligence and following Good Industry Practice, and (iii) has material adverse effect on the Affected Party.
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10.5.4 Effect of Force Majeure Neither Parties shall be considered to be in default or in breach of his obligations under the Contract to the extent that performance of such obligations is prevented by any circumstances of Force Majeure which arises after the date of the letter of Acceptance or the date when the Contract becomes effective, whichever is the earlier.
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 43 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:52:32 +0530 10.5.5 Notice of Occurrence
If either Parties considers that any circumstances of Force Majeure have occurred which may affect performance of his obligations he shall promptly notify the other Parties and the Engineer-in-Charge.
10.5.6 Performance to Continue Upon the occurrence of any circumstance of Force Majeure the Contractor shall endeavour to continue to perform his obligations under the Contract so far as reasonable practicable. The Contractor shall notify the Engineer-in- Charge of the steps he proposes to take including any reasonable alternative means for performance which is not prevented by Force Majeure. The Contractor shall not take any such steps unless directed so to do by the Engineer-in- charge.
Provided that if the Contractor incurs additional costs in complying with the Engineer-in-Charge's directions under this clause, the amount thereof shall be certified by the Engineer- in charge and added to the Contract Price.
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11.5 Termination due to Force Majeure Event 11.5.1 If a Force Majeure Event, as specified under clause 10.5 subsists for a period of 60 days or more within a continuous period of 120 days, either Parties may in its discretion terminate this Contract by issuing a termination notice to the other Parties without being liable in any manner whatsoever, save as provided in provisions of clause 11.1. Upon issue of such termination notice, this Contract shall, notwithstanding anything to the contrary contained herein, stand terminated forthwith;
Provided that before issuing such termination notice, the Parties intending to issue the termination notice shall inform the other Parties of such intention and grant 15 (fifteen) days time to make a representation, and may after the expiry of such 15 (fifteen) days period, whether or not it is in receipt of such representation, in its sole discretion issue the termination notice.
11.5.2 In the event of the Contract being terminated under clause 11.5.1 on account of Force Majeure Event, the Engineer-in-Charge shall issue a payment certificate which CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 44 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:52:38 +0530 shall include:
(i) An amount equal to the value of construction work less payments already made, less advance payments outstanding against the Contractor up to the date of issue of termination notice, less other recoveries due in terms of the contract, less taxes to be deducted at source in accordance with applicable law
(ii) the cost of plants and materials ordered for the Works which have been delivered to the Contractor. Provided that such Plants and Materials shall become property of Employer when paid for by the Employer and the Contractor shall place the same at the Employer disposal.
(iii)and the Contractor's cost of protecting and securing the Works.
12.8 Rates 12.8.1 The tendered rate (%age rate tender/item rate tender) for all items of the Works shall be considered inclusive of all leads and lifts, unless otherwise specified by BOQ, skilled ar unskilled labour & material required for working at all heights and depths, making any shape of the masonry as per the drawings, royalty fee, terminal taxes, octroi, entry tax etc. etc. besides other taxes payable by the Contractor such as Value Added Tax (VAT) on work contract and the VAT applicable on the goods/material. Nothing extra shall be paid unless otherwise given in the description of item and no extra claim shall be entertained due to any reasons whatsoever on this account.
12.8.2 Nothing extra shall be paid unless otherwise specified on account of cutting of grass, bushes, leveling of undulation in the ground, existence of drain and temporary structures etc. requiring removal and difficulty due to space constraints.
12.8.3 Nothing extra shall be pald for working in foul conditions unless otherwise specified. The tendered rates shall not be subject to any revisions for want of any information.
12.8.4 Nothing extra shall be paid for Works required as per Good Engineering Practice, BIS, manufacturer recommendation even if it is not specifically provided in the Contract.
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12.10.4 .............
Although Employer shall recognize the delivery challan and invoice for material and supplies/equipments involved in CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 45 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:52:45 +0530 execution of the work (supplied in course of inter-state trade against Form C) at the time of their receipt at the Site, the responsibility of their watch and ward shall continue to vest with Contractor, until the project is handed over to Employer. Nonetheless, the payment to Contractor shall be governed by the payment schedule as laid down in the tender document. To facilitate the Contractor account for the transactions, Employer shall with each payment issue a certificate specifying the quantity of material and supplies/ equipment consumed in achievement of a project milestone against which payment is released, based on the quantities worked out as mentioned above. ............
13.1.1 The Engineer-in-Charge shall have power:
(i) to make alteration, omissions, additions, or substitutions in the original specifications, drawings, designs and instructions that may appear to him to be necessary or advisable during the progress of the work, and
(ii) to omit a part of the Works in case of non-availability of a portion of the Site or for any other reasons.
The Contractor shall be bound to carry out the Works in accordance with any instructions given to him in writing signed by the Engineer-in-Charge and such alterations, omissions, additions or substitutions shall form part of the Contract as if originally provided therein. Any altered, additional or substituted Works which the Contractor may be directed to do in the manner specified above as part of the Works, shall be carried out by the Contractor on the same conditions in all respects including price on which he agreed to do the Works except as hereafter provided.
Instructions for any variations shall be communicated to the Contractor by the Engineer-in Charge in writing with a copy to the Employer.
13.0 Alterations, Additions & Omissions 13.1 Deviations/ Variation Extent and Pricing 13.1.3 If any extra item of material and/ or labour is involved during execution of work, the Contractor shall have to execute the same as per the direction of Engineer-in-Charge and the payment shall be made as per applicable DSR plus/minus Contractor's enhancement as applicable. In case, the extra CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 46 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:52:51 +0530 item of material and/ or labour is not available in the schedule of rate, the Contractor will be paid analyzed rates based on either DSR with Contractor's enhancement (+/-) or prevailing market rates plus 15% Contractor's profit but without Contractor's enhancement.
14.1.4 The following conditions shall prevail
(i) Price Variation shall not be applicable for Contracts with original Stipulated Period of Completion less than 12 months.
(ii) For Contracts with original Stipulated Period of Completion greater than 12 months, Price Variation shall be applicable on the entire duration of Contract. No price variation will be made for Contracts where the extension in time is because of default of Contractor. The decision of Engineer-in-Charge shall be final and binding on the Contractor.
(iii) The base date for the purpose of this clause shall be 7 days before the last date of submission of final bid.
(iv) In case of extension in the date of completion of works, the compensation under price variation shall be limited to indices prevailing at the time of Stipulated Period of Completion or as prevailing for the period under consideration, whichever is less.
(v) Clause 14:1 is operative both ways, i.e. if the price variation as calculated above is on the plus side, payments on account of the price variations shall be allowed to the contractor and if it is on the negative side, the Employer shall be entitled to recover the same from the Contractor and the amount shall be deductible from any amounts due and payable under the Contract.
(vi) To the extent that full compensation for any rise or fall in costs to the Contractor is not entirely covered by the provision of this or other clauses in the Contract, the unit rate and prices included in the Contract shall be deemed to include amounts to cover the contingency of such other actual rise or fall in costs.
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15.1 Completion certificate 15.1.1 Within 10 (ten) days of the Physical Completion of the work, the Contractor shall give notice of such completion to the Engineer-in-Charge. Within 30 (thirty) days of the receipt of such notice, the Engineer-in-Charge shall inspect the Works and if there is no defect in the work, shall furnish the Contractor with a Completion Certificate, otherwise a provisional certificate of Physical Completion indicating CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 47 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:52:56 +0530 defects:
(i) to be rectified by the Contractor and/or
(ii) for which payment will be made at reduced rates, shall be issued.
Provided that no Completion Certificate shall be issued, nor shall the Works be considered to be complete until the Contractor shall have removed from the Site all scaffolding, surplus materials, rubbish and all huts and sanitary arrangements required for his/their work people on the Site and cleaned off the dirt from site, shall have obtained clearance from labour officer as under clause 15.1.2 and not until the Works shall have been measured by the Engineer-in- Charge. If the Contractor shall fail to comply with the requirements of this clause on or before the date fixed for the Physical Completion of work, the Engineer-in-Charge may at the expense of the Contractor remove such scaffolding, surplus materials and rubbish etc., and dispose of the same as he thinks fit and clean off such dirt as aforesaid, and the Contractor shall have no claim in respect of scaffolding or surplus materials as aforesaid except for any sum actually realized by the sale thereof.
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16.0 Defect Liability and Maintenance 16.1 Defect Liability Period
(i) The Contractor shall be responsible for all the Defects in the Works or any part thereof, as the case may be, during the execution of the Works arid during the defects liability period.
(ii) The Defect Liability Period for the Works shall be one [1] year or as defined as per nature of work from the Completion Date.
(iii) In case commissioning happens within 1 (one) year from the Physical Completion of the Works, the Defects Liability Period shall start from the commissioning date. However, if the commissioning is delayed beyond 1 (one) year, the Defects Liability Period shall be Two (2) years from the date of Physical Completion of the Works.
(iv) The Security Deposit, submitted as per clause 6.2, shall be refunded if no defects are noticed during the Defect Liability Period or the Defects pointed out are removed.
(v) Contractor shall be responsible for security (watch and ward) of the project assets/ facilities for the period between Completion Date and commissioning.
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 48 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:53:02 +0530
72. In order to rebut the claim of the plaintiff, the arguments advanced on behalf of the defendant is that as per condition enumerated in clause 12 of the general conditions, the responsibility of the watch and ward of the items/materials shall continue to vest with the contractor until the project is handed over to employer and since the entire watch and ward expenses included within the meaning of items, the plaintiff is not entitled for any watch and ward expenses irrespective of the fact that whether it is for the extended period after the original period of contract has expired or for pandemic period by invoking the force majeure clause. On the other hand, the plaintiff has claimed the watch and ward expenses for the entire period after the completion of the 30 months including the period of pandemic on the ground that the unutilized pipes/goods are still lying under the watch and ward expenses being incurred by the plaintiff.
73. Thus, the question arises as to whether plaintiff is entitled for any watch and ward expenses or not. In clause 11.5 of the General Conditions, in no ambiguous terms it has been clearly stipulated that on termination of contract due to force majeure event under clause 11.5.1, sub-clause (ii) make it clear that the cost of plants and materials ordered for the work which have been delivered to the contractor and such plaints and material would become the property of the employer when paid for by the employer and the contractor shall place the same at the employer's disposal and clause (iii) makes it clear that the contractor is entitled for cost of protecting and securing the work. Thus, in any event if it is proved on record that the contract was terminated due CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 49 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:53:09 +0530 to force majeure event as per stipulation under clause 11.5 of the General Conditions, the plaintiff becomes entitled for the cost of protecting and securing the works and defendant is bound to take back the materials of which payment has been made by the defendant.
74. In no uncertain terms, it has been proved on record that intimation notice Ex.PW1/5 dated 29.05.2020 received in the office of defendant on 01.06.2020 for invoking the force majeure clause was given by the plaintiff stating therein that vide order dated 24.03.2020 the Union Government had already issued the directions in the form of lockdown. This notice of information has never been denied. Further, vide notice Ex.PW1/6 dated 15.06.2020, received in the office of defendant on 17.06.2020, the plaintiff has terminated the present contract on the ground of force majeure event as clarified by the Office Memorandum of the Ministry of Finance No.F18/4/2020PPD dated 19.02.2020. The said letter has also not been challenged on factual ground except on the ground that there could be no unilateral termination of contract by the plaintiff stipulated in general conditions and therefore, this notice Ex.PW1/6 cannot be treated to be a notice of termination of the contract awarded in favour of the plaintiff in the present case.
75. However, this interpretation of the defendant does not hold much water as the clause 11.5 had twin conditions to terminate the contract i.e. intention to terminate the contract by way of notice at least 15 days in advance by either party to the contract and after the expiry of 15 days period, either party in its CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 50 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:53:16 +0530 sole discretion can issue the termination notice. In the present case, as discussed hereinabove, both the conditions have been fulfilled by the plaintiff i.e. intention to terminate the contract and termination of contract vide notices Ex.PW1/5 and Ex.PW1/6 respectively. Thus, it can be safely held that the contract between the parties came to an end on issuance of the termination notice Ex.PW1/6. There is nothing on record to suggest contrary that the said contract was ever extended in writing by the plaintiff or plaintiff ever agreed to perform the contract between the parties by sending the written intimation.
76. Of course in the present case, the further work and bills for their payment have been raised and therefore, now it is to be seen as to whether same can be treated to be implied retraction of the notice Ex.PW1/6 for termination of the contract between the parties.
77. Further, if the terms and conditions as enumerated in clause 10.4.2 is taken into consideration, it has been stipulated that even in the events of happening of the force majeure, the contractor shall nevertheless use his best endeavour to prevent or make good the delay and under clause 10.5.6 it is for the contractor to make all the endeavour to continue to perform his obligation under the contract so far as reasonable, practicable and he is entitle for additional cost, if any. Thus, in view of the said provisions, it can be said that if the present plaintiff has continued the work of contract which is the subject matter of present case, it can be said that he had impliedly agreed to continue with the contract.
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 51 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:53:22 +0530
78. As discussed herein-above the total work awarded was for approximately 72 Kms of sewer pipeline. In the cross- examination of DW1, it has come on record that upon page no.345 at serial no.22(a)(i)(ii)&(iii) of Ex.PW1/4 (colly), the proposed quantity has been mentioned as 64738.44 meter, 123 meters and 107 meters. Thus, approximately the proposed quantity of work came out in the testimony of defendant to be approximately 65 Km which was done prior to invoking force majeure clause.
79. DW1 further has admitted that the said quantity was revised vide letter dated 03.03.2021 Ex.PW1/31 (colly) by 7.8 Kms. and therefore, now the approximate quantity to be laid down remained about 57 Kms. Though this figure appears to be insignificant but when it is compared with the case of the plaintiff that he terminated the contract after performing his part, this figure becomes significant as is admitted by DW1 in his further cross-examination that in actual the plaintiff laid down the sewage pipeline of 61825.96 meter length against the revised estimated quantity of 57168.44 meter. Thus, it makes clear that the defendant by their own reduced the work order when the plaintiff did not relent to their demand to continue with the contract vide letters Ex.PW1/9 dated 06.10.2020 and thereafter repeated communications seeking clarification as to why the plaintiff has not terminated other contracts regarding the other projects. As a matter of fact there was no need for plaintiff to explain as to why he has not terminated the other contracts awarded in his favour by the defendant department and the best part has been that even vide CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 52 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:53:28 +0530 communication letter Ex.PW1/15, the plaintiff has informed and apprised the defendant department that they may also invoke the force majeure clause regarding the other projects if they are willing so as both the projects are separate and it is not necessary for plaintiff to terminate all the awarded contracts under the FMC which is a valid arguments on behalf of the plaintiff.
80. Thus, from the evidence available on record, it has been proved on preponderance of probability that the plaintiff has terminated the contract/ work award in terms of the general conditions laid down at the time of entering into the contract and therefore, on account of the provisions of general conditions under clause 11.5, plaintiff is entitled for watch and ward cost for the material lying unutilized after invocation of F.M.C.
81. Further, in the entire testimony led on behalf of the defendant there is no denial that the unutilized pipes/ materials were not lying with the plaintiff and was not under the watch and ward/ security of the plaintiff after the termination of the contract on account of pandemic. Even the termination of remaining part of contract about 7 Km by the defendant itself shows that the defendant was also well aware about the consequences of legal notice Ex.PW1/6. More so, vide letter dated 18.07.2023 wherein the communication was made to send the photographs alongwith the location/site of the materials stored which remained unutilized and thus, this letter itself makes it clear that defendant department had knowledge of keeping watch and ward of the utilized material.CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 53 of 59 Digitally signed
Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:53:35 +0530
82. Further, in the cross-examination of DW1 it has come on record that the revised quantum of work was conveyed to the plaintiff only after 75 months from the date of issue of the work order. It has also come on record in the testimony of DW1 that there was extra work executed over and above the work awarded in the contract which is reflected in the bill Ex.PW1/66.
He has also admitted that without formal approval of extra items, work cannot be proceed at site by the plaintiff and admitted that vide letter dated 21.09.2017 approximately 997 days from the award of the work, approval of extra item was conveyed. When DW1 was confronted with that approval for demolishing/taking out of the existing old sewer pipelines was conveyed to the plaintiff on 24.09.2018, he has testified that it was a matter of record and thereafter for all the queries regarding extra items and its approval, this witness has stated that these are matter of record.
83. In his cross-examination, DW1 has admitted that at the time of first extension of time upto 29.04.2020 vide Ex.PW1/93, no levy of penalty was imposed as there was no fault on the part of contractor.
84. Thus, this witness has admitted that the extension of time for the work awarded in favour of the plaintiff was done without any penalty condition as there was no fault on the part of contractor/plaintiff. The present work was to be completed by 07.07.2017 as per issue work order no.4(2014-15). Even the testimony of DW1 found corroboration vide letter Ex.PW1/89 where the extension of time was given without levy of penalty alongwith escalation as per the contract agreement. This extension CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 54 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:53:41 +0530 is there also unilateral vide letter dated 04.09.2020 (Ex.PW1/94), 13.10.2020 (Ex.PW1/95), 17.03.2021 (Ex.PW1/96), 14.06.2021 (Ex.PW1/97) after termination of the contract vide Ex.PW1/6.
These letters itself shows that alongwith the extension of time to perform the contract the escalation in the cost was also sanctioned.
85. Thus, if the argument that the cost of watch and ward was also included in the item is accepted to be correct, even then it can be inferred that escalation in the cost of the work also include the watch and ward cost for performing the work beyond the stipulated period i.e. 07.07.2017 and therefore, on this count also the plaintiff is entitled for watch and ward cost after the expiry of the original period of contract.
86. In the entire cross-examination of PW1, not a single question has been put that no watch and ward was employed by the plaintiff after the stipulated period of 30 months of the contract. Instead of that it has come in the testimony of PW1 that defendant has no right to recover the payment for pipes which has not been used by the plaintiff but the payment has already been made by the defendant no.1 and when this witness was confronted with clause 13.2.2 from point 'X' to 'X' the witness has clearly denied applicability of the said clause and stated that it is the FMC clause 11.5 which would be applicable in the present case after termination of the contract. Upon specific query regarding the applicability of the clause 11.5, PW1 has clearly stated that the said clause entitles the plaintiff to recover the watch and ward cost after the invoking of FMC. When PW1 was confronted with his CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 55 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:53:49 +0530 entitlement qua the watch and ward charges for the remaining period prior to FMC, he has pointed out that he has been given the watch and ward charges after the expiry of original contract period vide Ex.PW1/63, Ex.PW1/64, Ex.PW1/65 and Ex.PW1/67 and Ex.PW1/68 with one copy of the High Court order wherein plaintiff have been given watch and ward expenditure. However, PW1 has not been cross-examined on the issue that no such order granting watch and ward cost has been passed or has been paid to the plaintiff for the period prior to force majeure events and thereby it can be safely held in absence of any rebuttal, that the plaintiff was granted watch and ward cost even prior to force majeure period.
87. There is no cross-examination of PW1 regarding the genuineness of bills, Ex.PW1/79, Ex.PW1/80, Ex.PW1/81, Ex.PW1/82, Ex.PW1/83, Ex.PW1/84, Ex.PW1/85, Ex.PW1/86, Ex.PW1/87, raised by the plaintiff towards the watch and ward cost or their payment or the details of work/ material lying in the custody of the plaintiff at site vide Ex.PW1/78 and the final bill Ex.PW1/73 for watch and ward cost alongwith the order specifying the rate of skilled, unskilled and semi-skilled labour charges. It is pertinent to mention here that in the said bills, the payment has been shown to have been made through bank account and not a single question has been put to PW1 that no such payment was made by the plaintiff to any of his service provider for watch and ward.
88. Of course, in the testimony of PW2 to PW4, there is discrepancy regarding the maintenance of invoices allegedly CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 56 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date:
Sharma 2026.01.09 16:53:55 +0530 raised by them but in the entire testimony of these witnesses, neither any question has been asked that they have never received any payment as shown in the ledger account of the plaintiff firm nor there is anything in their testimony which raises any doubt that they have never worked as a watch and ward staff. Instead of that it has come in the testimony of PW2 that he had used to do the guard duty and has denied the suggestion that he has never did any guard duty. PW3 also in his testimony has admitted that the plaintiff had made payment to him by cheque and this fact has never been controverted from this witness. Witness PW4 has also testified that he did work for the plaintiff company since the year 2017 till 2023. Thus, from their testimony coupled with the testimony of PW1, it can be safely held that for the plaintiff to prove his entitlement for watch and ward he was required to prove that these persons were paid for their duty which plaintiff had adequately proved on the basis of oral as well as documentary evidence.
89. Thus, from the above testimony available on record, it is clear that not only on account of force majeure clause but plaintiff is entitled for watch and ward cost after the date of expiry of the original date for completion of work as per applicable rate time to time till the submission of last bill for the period upto 30.11.2023 as per law and subject to furnishing the proof of deposit of the taxes as applicable during the said period. This claim is also decided in favour of the plaintiff.
90. In view of the foregoing discussion, plaintiff is held entitled to payment of amount of Rs.69,10,744/-
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 57 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: 2026.01.09 Sharma 16:54:01 +0530
(4,06,963+164920+6338861) (Rupees Sixty Nine Lakhs Ten Thousand Seven Hundred Forty Four only). This issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2Whether plaintiff is entitled for interest. If yes, at what rate and for which period? (OPP)
91. The plaintiff has prayed for grant of pendent lite and future interest @ 18% per annum on the suit amount from the date of filing of the present suit till its realization. The said rate of interest, however, appears to be on higher side considering the prevailing reporate for lending money as fixed by the RBI. Therefore, the ends of justice would be met if the plaintiff be awarded simple interest @ 9% per annum from the date of filing of the suit i.e. 23.01.2024 till the realization of the decreetal amount.
R E L I E F:-
92. In view of the above, the suit is decreed for a sum of Rs.69,10,744/- (Rupees Sixty Nine Lakhs Ten Thousand Seven Hundred Forty Four only) in favour of the plaintiff and against the defendant with simple interest @ 9% per annum from the date of filing of the suit i.e. 23.01.2024 till the realization of the decreetal amount.
93. Plaintiff is also held entitled to the costs of the suit and additionally the amount spent by the plaintiff in pre-
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 58 of 59 Digitally signed Devendra by Devendra Kumar Sharma Kumar Date: Sharma 2026.01.09 16:54:07 +0530 institution mediation proceedings.
94. Decree sheet be prepared accordingly.
95. File be consigned to record room after due compliance. Digitally signed Devendra by Devendra Dictated and announced Kumar Kumar Sharma Date:
in the open Court on Sharma 2026.01.09 9th January, 2026. 16:54:14 +0530 (DEVENDRA KUMAR SHARMA) District Judge (Commercial Court)-03 Central, Tis Hazari Courts, Delhi.
CS (COMM) No.143/2024 M/s Jainco Buildcon Pvt. Ltd. Vs. Delhi Jal Board & Anr. Page 59 of 59