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[Cites 5, Cited by 0]

Delhi District Court

S.R. Sharma vs The Vice­Chairman on 18 May, 2007

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IN THE COURT OF  SH. J.P.  NARAIN,  CIVIL JUDGE  : DELHI

SUIT NO.699/06/93

S.R. Sharma,
AC­3/37­A, Shalimar Bagh,
Delhi­110052.

                                                                  Plaintiff.
         Versus

1. The Vice­Chairman,
   Delhi Development Authority
   Vikas Sadan, INA,
   New Delhi.

2. The Executive Engineer,
   Western Division No. 3,
   Kirti Nagar Lakhar Mandi,
   Delhi Development Authority,
   New Delhi­110015.

                                                                    Defendants.
JUDGEMENT:

By this judgment, I shall dispose of the present suit of the plaintiff. The plaintiff has filed the present suit for recovery of Rs. 1,90,154/­ with cost and interest. In brief the case of the plaintiff is that plaintiff is a contractor and has entered into a contract for the execution of the work under a contract no. 14/EE/WD/3/DDA/91­92 with the DDA through Executive Engineer and the plaintiff has 2 performed the contract as per the terms of the agreement and the defendants directed the plaintiff to make certain additions and the rates of these extra items have to be derived in accordance with the provisions of clause 12 of the said agreement. That the plaintiff has already raised his claims with the defendants through letters dated 01.08.1991, 12.08.1991, 18.08.1991, 14.09.1991, 23.09.1991, 27.09.1991, 21.10.1991, 29.11.1991, 07.12.1991 and 13.12.1991 but finalized the bill on 27.07.92 without considering these claims.

2. That the plaintiff served a legal notice dated 20.01.93 but despite service of notice the defendants did not make the payment. The plaintiff has sought money recovery of Rs. 1,90,154/­ with cost and interest.

3. Defendants have contested the suit and filed written statement. The defence of the DDA is that the rates for extra work as claimed by the plaintiff are not in accordance with clause 12 of the contract agreement. That the recovery of Rs. 12,961 was made in accordance with clause 42(2) of the contract agreement.

4. From the pleadings of the parties, the following issues were framed :

1.Whether the plaintiff has carried out any additional work / extra 3 item and he is entitled to any amount because of additional work / extra item? OPP.
2.Whether the recovery of Rs. 12,961/­ on account of penal rate recovery of cement is illegal and factually wrong ? OPP.
3.To what amount the plaintiff is entitled to recover.

5. From the pleadings of the parties, the following additional issues were framed :

1. That the suit is not maintainable against both the defendants in view of the provisions of section 3(2) of DD Act, 1957 and that the could not be filed against any of its officers and accordingly, the present suit is not maintainable.
2. That the suit is not maintainable in view of the provisions of Section 51 of DD Act, 1957 and the defendants are not liable personally. They can not be sued as such.
3. That the suit is barred by time in accordance with Section 53B (2) of DD Act, 1957, vis­a­vis the dates on which the alleged payment became due. The limitation from 6 months has to apply from the said dates.
5. In support of his case the plaintiff has examined himself as PW­1. In defence Defendant DDA has examined DW­1 Sh.

S.K. Gupta.

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7. I have meticulously scrutinized the entire evidence on the record and have given my careful thoughts to the rival submissions. The findings of the additional issues framed on 29.11.2006 will have bearing on the finding of issues No. 1,2 and 3 and therefore, I will decide the additional issues first. My findings on the issues is as under :­

8. ADDITIONAL ISSUES NO. 1AND 2 :

The plaintiff has filed the present suit against Vice Chairman of DDA and Executive Enggineer, WD­III, Kirti Nagar. Sub Section 2 of Section 3 provides as follows :
"The Authority shall be a body corporate by the name aforesaid having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and to contract and shall by the said name sue and be sued."

9. Section 51 of the DD Act, 1957 provide protection of action taken in good faith and same provides that no suit prosecution or other legal proceedings shall lie against any person for anything which is in good faith done and intended to be done under this Act or any rules or regulations made thereunder. From the bare reading of provisions of Section 3 and Section 51 it becomes crystal clear that Delhi Development Authority can be sued in the name of 5 Delhi Development Authority only. In the present case DDA has not been sued. Defendant DDA could have been sued through the person mentioned in Sub Section 3 of Section 3. The parties of the suit reads as follows :

" S.R. Sharma, AC­3/37­A, Shalimar Bagh, Delhi­110052.
Plaintiff.
Versus
1.The Vice­Chairman, Delhi Development Authority Vikas Sadan, INA, New Delhi.
2.The Executive Engineer, Western Division No. 3, Kirti Nagar Lakhar Mandi, Delhi Development Authority, New Delhi­110015.
Defendants"

10. The same clearly shows that the plaintiff has sued Vice Chairman and Executive Engineer, DDA. DDA has not been sued through Vice Chairman and Executive Engineer, therefore, the suit is not maintainable in accordance of Sub Section 2 of Section 3. From the bare reading of Section 51 it becomes clear that no suit shall lie against any official of the DDA for anything which is in good faith done or intended to be done under the DD Act or any rules and 6 regulations made thereunder. The Vice Chairman has not done anything in the present case and Executive Engineer has acted under the rules and regulations in good faith, therefore, they are not personally liable and therefore, the suit is not maintainable.

11. ADDITIONAL ISSUE NO. 3 :

Sub­Section 2 of Section 53B provides as under :
"No suit such as is described in sub­section (1) shall, unless it is a suit for recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises."

12. Defendant has taken the objection that the suit is barred by time in accordance with Sub­ Section 2 of DD Act vis­a­vis the dates on which the alleged payment become due. Ld. Counsel for the defendants has argued that the suit was required to be instituted within 6 months from the accruing of cause of action and against each payment cause of action has accrued separately and therefore, the suit is barred by time. I have gone through the entire evidence on the record. The plaintiff has admittedly entered into one contract with the DDA and thereafter, extra items have been provided by the plaintiff from time to time and payment of the extra items was demanded vide letter dated 01.08.91 to 27.07.92. The present suit 7 was filed on 14.07.93. As per Sub Section 2 no suit can be filed after the expiry of 6 months from the date on which the cause of action arises. Even if the entire contract is to be taken as one and it is presumed that the date of finalization of the bills in which the claims of the plaintiff were ignored is taken as the date of the cause of action then the present suit has been filed on 14.07.93 and same is clearly filed after the expiry of 6 months from the date on which the cause of action arises and therefore, the suit is barred by Sub Section 2 of Section 53B of DD Act and accordingly, issue No. 3 is decided against the plaintiff.

13. ISSUE NO. 1 :

From the testimony of PW­1 and DW­1 it is established that the plaintiff has carried out the additional work. From the evidence, it is also established that the plaintiff is entitled to payment from the DDA for the additional work but in the present case the plaintiff has not sued DDA and in fact has sue Vice Chairman and Executive Engineer of DDA and in view of Section 51, plaintiff is not entitled to recovery of any amount against the Vice Chairman and Executive Engineer, DDA as they are directed U/s 51 of DD Act. In view of the findings on additional issues no. 1,2 and 3, plaintiff is not entitled to any recovery.
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14. ISSUE NO. 2 :

The plaintiff has claimed recovery of Rs. 12,961/­ on account of penal rate recovery of cement is illegal and factually wrong. According to DDA recovery has been effected as per clause 42 (2) of the contract agreement. As plaintiff has executed the co­ efficient of cement adopted by the defendant and the statement prepared by the defendant at the time of finalization of the bill and from bare reading of clause 42 (2) of the contract agreement it is established that the recovery of Rs. 12,961/­ on account of penal rate recovery is in accordance with the terms of the contract. Plaintiff has failed to establish that the recovery of Rs. 12,961/­ is illegal and factually wrong.
15. ISSUE NO. 3

In view of the findings on additional issues No. 1,2,3 and issue no. 1 and 2, plaintiff is not entitled to recovery of any amount from the defendants and accordingly, suit of the plaintiff is dismissed. Parties shall bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.

(J.P. NARAIN) CIVIL JUDGE/DELHI.

ANNOUNCED IN OPEN COURT ON 18.05.2007 9