Delhi District Court
Sh. Vijay Kumar Goel vs Delhi Development Authority on 6 August, 2022
IN THE COURT OF SH. RAJINDER KUMAR
ADDITIONAL DISTRICT JUDGE-02, NORTH-WEST,
ROHINI COURT: DELHI.
CS DJ No.78498/16
IN THE MATTER OF:
Sh. Vijay Kumar Goel,
Engineers & Contractors,
E-33, Ashok Vihar, Phase-I,
Delhi-110052.
Through
Shri Vijay Kumar Goel,
Proprietor ......Plaintiff
Versus
Delhi Development Authority
Through
1. The Vice Chairman
Delhi Development Authority
Vikas Sadan,
Near INA Market, New Delhi.
2. The Executive Engineer
R.P.D-10, Delhi Development Authority,
CSC-9, Sector-7,
Rohini, Delhi-110085.
.....Defendants
Date of Institution : 14.11.2000
Date of Reserving Order : 30.07.2022
Date of Judgement : 06.08.2022
CS DJ No.78498/16
Vijay Kumar Goel Vs. DDA & Anr. Page 1 of 44
JUDGMENT :-
SUIT FOR RECOVERY OF RS.66,70,231/- ALONGWITH FUTURE INTEREST @ 18% P.A. FROM THE DATE OF INSTITUTION OF SUIT
1. This is a suit for recovery of Rs.66,70,231/- alongwith future interest @ 18% p.a. from the date of institution of the suit, filed by the plaintiff against defendants.
2. Brief facts of the case as per the plaintiff are that he is a Class-
A contractor and is registered with various Government and Semi- Government organizations and is executing civil construction work for the last more than 15 years. That he has been awarded the work of "Development of land of 472.40 hectors in Sector 23, 24 and 25 at Rohini, Phase-III, S.H.:Construction of outfall drain from Sector 20 to 25 at Rohini (Line No.F to G-300)" by the defendants. That the estimated cost of the work was Rs.5,87,84,385/- and the tendered amount was Rs.7,15,59,002/-. That the stipulated date of commencement was 01.08.1996 and the stipulated period was 24 months. That the work was complete to the entire satisfaction of the defendants on 15.05.1999 and the final bill for the work was paid on 16.06.1999 but since, certain pending payments were not included in the final bill, the plaintiff wrote to the defendants to release those payments as well, but no heed was paid to this by the defendants. The CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 2 of 44 plaintiff has claimed several reliefs against the defendants i.e. Claim No.1 to 11, which in brief are as under:
Claims Pertains to :- Amount Claim No.1. Extra rate for RCC work executed above Rs.53,170/-
floor 2 level.
Claim No.2. Extra payment due to execution of the items Rs.17,12,080/-
of :-
(I) Centering and shuttering (Item nos.12a &
b);
(ii) Reinforcement (item no.14) in or under water or liquid mud.
Claim No.3. Testing of the RCC pipe joints. Rs.9,89,670/- Claim No.4. Extra expenditure on continuous de- Rs.5,87,888/-
watering, idle tools and plants, machinery, equipment, idle establishment and labour & loss of profit during the period from 27.05.1998 to 23.06.1998.
Claim No.5. Extra lift for filling excavated earth in Rs.3,51,090/-
trenches beyond initial lift of 1.5 meters.
Claim No.6 Extra payment due to executing the items Rs.12,53,589/-
of :-
(i) extra for each additional lift of 1.5m in soft / loose soil (item no.2); and
(ii) filling available excavated earth in trenches in layers of 20 cm in depth (item no.4) in or under water or liquid mud.CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 3 of 44
Claim No.7 Providing centering and shuttering at height Rs.8,16,281/-
of more than 3.5 meters.
Claim No.8 Extra expenditure on continuous de- Rs.2,07,200/-
watering, idle tools and plants, machinery, equipment, idle establishment and labour & loss of profit during the period of no work from 11.02.1999 to 24.02.1999 for non-
supply of cement and steel.
Claim No.9 Claim on account of short payment due to Rs.6,49,257/-
rates of deviated quantities.
Claim No.10 Claim on account of withholding of amount Rs.50,000/ due to Quality of Control observations.
Claim No.11 Claim for interest from the date of institution @ 18% p.a. of suit.
3. Certain preliminary objections are taken in the W/S like that the suit is not maintainable for the want of statutory notice U/s 53- B of DDA Act and also that the suit was barred by time u/s 53-B(2) DDA Act. All the 11 claims of the plaintiff are denied by the defendants. It is also pleaded that no payments of the plaintiff were due towards the defendants.
4. Replication was filed by the plaintiff to the W/S filed by the defendants, wherein the pleadings of the defendants are denied and the contents of the plaint are re-affirmed. In replication, the plaintiff has pleaded the fact of service of notice dated 07.05.2000 upon the CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 4 of 44 defendants. Notice and postal receipts were also filed by the plaintiff alongwith the replication.
5. As per order dated 16.07.2004, admission / denial of the documents was conducted in this case and the documents filed through list of documents dated 31.01.2003, at serial no.3 only in the form of original Register and pages no.384 to 498 were deemed to have been admitted by the plaintiff in his absence.
6. On the basis of pleading of the parties, following issues were framed in this case on 19.08.2004, which are as under :-
(1) Whether the statutory notice under Section 53-B of the DDA Act has been served on the Defendant? OPP (2) Whether the Suit is barred by time under the provisions of Section 53-B(2) of the DDA Act, 1957? OPP (3) Whether the plaintiff is entitled to any amount as claimed in the plaint? OPP (4) Relief.
7. The plaintiff got examined himself as PW-1 in support of his case. The plaintiff (PW1), during his examination-in-chief, relied upon various documents i.e. Ex-PW1/1, Ex-PW1/2, Ex-PW1/4, Ex- PW1/5 & Ex-PW8 to Ex-PW1/39. PE was closed on 10.10.2013. There are no documents Ex-PW1/3, Ex-PW1/6 and Ex-PW1/7 as referred in the evidence affidavit by the plaintiff (PW1).
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 5 of 448. The defendants got examined Sh. Asadur Rahman (as DW1) in this case, who did not rely upon any document during his examination-in-chief. The evidence of defendants was closed on 05.07.2022.
9. I perused the judicial file minutely, in view of rival submissions of parties.
Issue - wise findings is as under :
10. Issue No.(1) - Whether the statutory notice under Section 53-B of the DDA Act has been served on the Defendant? OPP & Issue No.(2) - Whether the Suit is barred by time under the provisions of Section 53-B(2) of the DDA Act, 1957? OPP Both the issues are inter-connected. Hence, to avoid repetition and for the sale of brevity, both are taken up together. The onus to prove the same was put upon the plaintiff. It is pleaded by the defendants that the suit was not maintainable for the want of statutory notice U/s 53-B of DDA Act,1957. In the corresponding para of replication, i.e. para no.1, it is replied by the plaintiff that the notice dated 07.05.2000 was duly served upon the defendants. The plaintiff has placed on record the copy of the notice dated 04.05.2000 (Ex-PW1/30) alongwith postal receipts Ex-PW1/31 & PW1/32. It is pertinent to mention here that the genuineness of the same is not disputed by the side of the defendants. It is also not the case of the defendants that the copy of said notice or the postal CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 6 of 44 receipts were forged or fabricated. No doubtedly, the plaintiff was supposed to place on record the said document alongwith the plaint itself. As per plaintiff, the notice was duly served upon the defendants to meet the requirement of Sec.53-B of DDA Act but it has now specifically been pleaded in the replication by the plaintiff. The plaintiff cannot be punished for the mistake of his counsel.
Sec.27 General Clauses Act reads as under :-
"27. Meaning of service by post. Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
The said notice is duly addressed to the defendant no.1 & 2 on their correct address. There is nothing on record to presume anything against the plaintiff. Accordingly, it is clear that the service was duly effected upon the defendants.
As per the plaintiff, a number of letters Ex-DW1/PX-3 to Ex-DW1/PX-23 were sent to the defendants, which are duly admitted by Asadur Rehman (DW1) during his cross-examination dated 29.08.2017 at page no.1. So, it can be safely held that the cause of action was still subsisting and continuing in the present case.
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 7 of 44During cross-examination dated 10.10.2013 (at page no.1), the plaintiff (PW1) incorrected to the suggestion put to him that the notice Ex-PW1/30 U/s 53-B of DDA Act has not been served upon the defendants. The plaintiff (PW1) also incorrected to the suggestion that he had not placed on record the proof of service (Ex-PW1/30). The witness has volunteered that Ex-PW1/31 and Ex-PW1/32 were the postal receipts of the same.
The defendants have failed to apprise the Court as to how the Agreement in question was executed under the provisions of DDA Act to which the period of limitation was 6 months and not 3 years. In para 11 of the plaint, it is pleaded by the plaintiff that the final bill was paid by the defendants on 16.06.1999, i.e. less than 3 years. It is pertinent to mention here that in the corresponding para of W/S filed by the defendants, the same is neither disputed nor denied. Rather, same is duly admitted by them by pleading that the same need no reply. The plaintiff has filed the present suit on 14.11.2000. So, more than 2 months time has duly been given to defendants prior to filling of the present case.
Accordingly, both the issues are decided in favour of the plaintiff and against the defendants.
11. Issue no.(3) - Whether the plaintiff is entitled to any amount as claimed in the plaint? OPP The onus to prove this issue was upon the plaintiff. The plaintiff has pleaded 11 claims in this case. So, let, the same be taken one by one.
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 8 of 4412. Claim No.1 -
12.1 So far as this claim is concerned, the plaintiff has claimed a sum of Rs.53,170/- for payment of extra rate for RCC work executed above floor 2 level. It is the plea of the plaintiff that as per para 5.4.11.3 of CPWD Specifications, 1996 Vol.II, RCC work under sub-categories i.e. (a) rafts & footings, (b) all other items upto floor 2 level (c) from floor 2 level to floor 3 level and so on was to be measured separately. It is also pleaded by the plaintiff that as per Delhi Schedule Rates (DSR), Item no.5.30 (page no.94), for the work from floor 2 level to floor 3 level, an extra rate of Rs.32.25 per floor per cubic meter was payable. It is also pleaded that as per CPWD specifications 1996, Volume I (Page 2), special provision was to be made in the estimate for such situations, where the level was more than 3 meters from plinth level. It is also the plea of the plaintiff that he had provided manholes at a depth of more than 7.5 meters from ground level and also that as per para 0.5.2.1 of CPWD Specifications, Volume II (page no.1), the storey height has been specified as 3.5 meters and accordingly, work done above 3.5 meters was payable extra in term of said Specifications and the rate given in DSR. 12.2 It is the plea taken by the defendants in the W/S that the same is wrong and denied. That the defendants have fully paid the amount payable to the plaintiff as per the terms of the agreement. It is also pleaded that the contentions of the plaintiff that the rates as applicable under 5.4.11.3 of CPWD Specifications no.1996 of Delhi Schedule of Rates 1993 was incorrect and denied. That the claim was to be dealt with as per provisions contained in the CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 9 of 44 agreement between the parties and DSR 13393 and CPWD Specifications were not applicable in this case. 12.3 In the corresponding para of WS, the defendants did not deny/ dispute the applicability of item Number 5.30 of DSR as pleaded at page no.4 of the plaint. The defendants have also not denied the fact of the plaintiff that the depth of the manholes was more than 7.5 meters from the ground level as pleaded in the plaint. The reasons are best known to the defendants. The defendants have also not denied the applicability of CPWD Specifications Volume II in their W/S to the Agreement in question as pleaded by the plaintiff in this case. The reasons are known to the defendants.
12.4 In his evidence affidavit (Ex-PW1/A) filed by the plaintiff (PW1), the contents of the plaint are reproduced and nothing material came out of his cross-examination to support the defence raised by the defendants.
12.5 During his cross-examination dated 17.11.2014 (at page no.1), it was admitted to be correct by Sh. Asadur Rehman (DW1) that the agreement was based on DSR 1993. It was also admitted to be correct that for the present Agreement, CPWD Specifications 1996 Vol.I to VI were applicable. It is also admitted to be correct on the very same page that in the 5 th certificate of final bill, it was written that work has been carried out as per specification. During cross-examination dated 09.08.2017 (at page no.1), it was admitted to be correct by DW1 that the average bed level was 206.345m. During cross-examination dated 01.12.2018 (at page no.1 & 2), it was deposed that the average top level of depth filling for chamber CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 10 of 44 no.1 & 2 was 214.53m and the average base level of depth filling from F02 to 650, it was 206.34. At page no.3, it was also deposed by him that the details of average depth filling upto crest level was on page no.29, 30, 31 and 34 of MB No.9595.
In further cross-examination dated 12.12.2018 (at page no.5), it was admitted to be correct by DW1 that all the chambers constructed during the work were of RCC and not of brick work. During cross-examination dated 01.04.2022, (at page no.4), it was deposed by the witness that the payments were made to the plaintiff upto floor 2 level qua item no.8, 9 & 10 of the agreement as per nomenclature of the schedule of the Agreement. The witness incorrected to a suggestion put to him that if it was so, DDA has made extra payments to the plaintiff 13 times. During cross- examination dated 10.03.2022, (at page no.1), it was deposed by him that the work of RCC cannot be said completed in the absence of centering-shuttering and plastering. It was also deposed by him that the RCC cannot be said completed without plastering. The witness incorrected to the suggestion put to him that RCC can be said completed without plastering. It was also deposed by him that there was requirement of shuttering for CC. It was also deposed by him that he do not remember whether any payments for shuttering for the work of CC was made for the work in question. It was also deposed by him that he cannot tell the rates of RCC work and CC work executed in or under water.
12.6 During cross-examination dated 18.06.2022 (at page no.1), it was admitted to be correct by him that in turning chambers of questioned work, below raft plinth beams and raft of CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 11 of 44 columns were laid and above floor 1 level and above floor 2 level and above intermediate tie beams were also constructed by the plaintiff. At page no.3, It was also admitted to be correct by him that the work of earth-filling and laying of shattering-shuttering was not done in the sub-soil.
12.7 The plaintiff has claimed a sum of Rs.53,170/-. The plaintiff has annexed with the plaint, Annexure 1 (Ex-PW1/4) but the same is neither denied nor disputed by the side of the defendants. The reasons are best known to them.
13. Claim No.2 -
13.1 It is the plea of the plaintiff that as per terms of the Agreement, the rates for various items were for executing the work in normal dry conditions but during execution of contract, certain items had to be executed under water, which required continuous pumping to lower down the sub-soil water level. That as per item no.13 of schedule of quantities, extra payment was admissible for RCC work done in or under water including cost of pumping or bailing out water and removal of water, slush etc. That the operation of de-watering was not included in the specification, hence, extra amount was payable. That for the work of de- watering, extra amount was payable for the item of reinforcement done in or under water and also for the item of plastering. That as per Para 13.8.10 (page no.8) of CPWD specifications, 1996 volume IV, the rate shall include cost of all labor and materials involved in all the operations described above. That the defendants did not pay any heed to the notice of the plaintiff.
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 12 of 4413.2 It is the plea taken by the defendants that as per agreement between the parties, the rates payable for expenditure of works under water were paid by the defendants to the plaintiff as per item no.13 under Schedule of Quantities. That de-watering once done in RCC work was not accepted for other works. That the provisions of CPWD Specifications 1996 Vol.II were not applicable to the case as the case was governed by the terms of the agreement.
13.3 During his cross-examination dated 17.11.2014 (at page no.1), it was admitted to be correct by Sh. Asadur Rehman (DW1) that the agreement was based on DSR 1993. it was also admitted to be correct that for the present Agreement, CPWD Specifications 1996 Vol.I to VI were applicable. During cross-examination dated 01.12.2018 (at page no.4), after verifying the record, it was admitted to be correct that extra rates for quantities of work executed under water was applicable. At page no.5, the witness states that he cannot say as to whether the plaintiff has never claimed any extra / additional rates for additional work executed in or under water and that it was matter of record. It was admitted to be correct by him that the work was to be executed as per CPWD Specifications. During cross-examination dated 07.12.2018 (at page no.1), it was admitted to be correct by DW1 that the certified copy of analysis of rates for approval of deviation was filed by him on that day Ex-DW1/PX-22. At page no.2, the witness admitted the fact that the document Ex-DW1/PX-25 deals with centering and shuttering, reinforcement and concreting.
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 13 of 4413.4 During his further cross-examination dated 24.11.2018 (at page no.6), several questions were put to DW1, out of which questions, question no.13 & 14 reads as under :-
"Question 13:- Have you filed all correspondence exchanged by the DDA with the plaintiff with respect to the instant work in the instant suit?
Answer. I cannot say about this.
Question 14:- Have you brought the record of correspondence exchanged with the Contractor in respect of work with you today in the Court?
Answer. I have not brought it in the court today."
13.5 During cross-examination dated 20.11.2019 (at page no.1), it was admitted to be correct by him that there was requirement of masons for execution of work. During cross-examination dated 01.04.2022 (at page no.1), it was deposed that RCC pipes, cement concrete, earth working excavation and RCC work etc. were executed in sub-soil condition. It was also admitted by him that centering-shuttering and reinforcement were also executed in or under water. At page no.2, it was also deposed by him that he cannot say exactly as to when were the payments made by the defendants whether it was through running bills or final bills.
In further cross-examination dated 10.03.2022 (at page no.1), it was also deposed by DW1 that the work of reinforcement and centering-shuttering was also executed in or under water or in sub- soil condition. The witness incorrected to the suggestion put to him that no payments was ever paid to the plaintiff for centering-
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 14 of 44shuttering and reinforcement work. The witness was asked to refer the judicial record and tell as to what was the amount paid to the plaintiff for the work of centering-shuttering and reinforcement. It was deposed by the witness at page no.2 that he cannot state. It was also deposed by him that he do not remember if the rates for centering -shuttering and reinforcement were ever submitted by plaintiff to DDA. It was also deposed by him that he was not aware whether the said rates were ever disputed by defendant / DDA.
13.6 During cross-examination dated 10.03.2022 (at page no.2), it was deposed by him that he do not remember if the rates for centering-shuttering and reinforcement were ever submitted by the plaintiff to the defendants. During cross-examination dated 18.06.2022 (at page no.1), it was admitted to be correct by him that in turning chambers of questioned work, below raft plinth beams and raft of columns were laid and above floor 1 level and above floor 2 level and above intermediate tie beams were also constructed by the plaintiff. It was also deposed by him that the foundation work was called from the work upto 1.5 m from plinth level and below it, 3.5 m upto floor 1 level and all levels it repeats by 3.5 m. After referring the judicial record, it was also deposed by him that the work was executed in extra item no.1/1 and 1 /2 upto floor 2 level and above in the 13 th final bill. At page no.3, It was also admitted to be correct by him that the work of earth-filling and laying of shattering-shuttering was not done in the sub-soil. During cross-examination dated 18.06.2022 (at page no.4), it was admitted to be correct by DW1 that reinforcement and centering-
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 15 of 44shuttering was not executed in sub-soil condition. It was also volunteered by him that the tender in question was raised on DSR 1993 and CPWD Specifications were to be followed. It was also admitted to be correct by him that in clause 11 and 12 of the agreement, there was a reference of DSR 1993 and CPWD Specifications. It was also answered by him to a question put to him, which reads as :
"Q. Please tell how to deal with the work done from the contractor, which does not exist in the Schedule of Quantity? Ans. That is taken up as extra item."
13.7 During cross-examination dated 01.07.2022, (at page no.2), it was admitted to be correct by the witness that in Agreement no.13, payment of item no.6, 7 & 8 of CC 1: 2 : 4 stone-soiling, RCC 1: 1.5:3 and part quantity of item no.9 & 10 were also paid in Agreement no.13 of extra work under water or liquid. It was deposed by him that he was not aware if extra item no.1/1 ad 1 /2 were also paid in Agreement no.13 of extra work.
During cross-examination dated 05.07.2022, (at page no.1), it was also deposed by him that he cannot admit or deny whether the questioned work RCC columns upto floor 2 level and its centering-shuttering were constructed through extra item no.1/1 and 1/2. At page no.1, it was also deposed by him that he is not aware whether the plaintiff had ever asked DDA for payment of extra rates on the stipulated quantities and rates then provided in the Schedule of quantity of agreement.
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 16 of 4413.8 Alongwith the plaint, the plaintiff has filed Annexure-II (Ex-PW1/5), wherein the calculation of the amount claimed in Claim no.2 has been described but the same is neither disputed nor denied by the side of the defendants.
14. Claim No.3 -
14.1 It is the plea of the plaintiff that as per Item no.17 of Schedule of Quantities, the plaintiff was to provide and lay non- pressure RCC pipes and as per actual site conditions, the pipes were laid under water. That as per condition no.4.6 on page 64 of the Agreement, the contractor was not required to carry out testing of joints in RCC pipes laid below sub-soil water level but despite that the defendants directed the plaintiff to carry out the testings of the joints through written directions in Site Book order Book on 01.09.1997, 02.09.1997 and 06.09.1997. That the plaintiff brought to the notice of the defendants vide letter dated 15.09.1997 that it was not their obligation and also that if the defendants still insist on the testing, the same shall be payable separately. That the testing was completed successfully by the plaintiff and intimated the defendants vide letter dated 25.10.1997 and the payment was also demanded but the defendants did not do so.
14.2 It is the plea of the defendants that the claim was wrong and denied and also that no extra payment for testing of RCC pipe joints was payable as the same was included in item no.17 of the Schedule of Quantities. That the defendants were not required to make the payments as per clause 4.6 of Specifications and CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 17 of 44 Conditions. That at the time of signing of agreement, the estimated amount was increased by 21.73 % on the item rate tendered.
It is pertinent to mention here that in the corresponding para of W/S, the defendants did not deny / disputed the sending of letter dated 15.09.1997 by the plaintiff to them. The reasons are best known to the defendants.
It is pleaded by the plaintiff that he successfully carried out the testing of joints and compliance was reported to the defendants vide letter dated 25.10.1997 (Ex-PW1/8). It is also pleaded that even though, payment was demanded for the item no.3 but was not paid.
The defendants also did not deny / dispute the sending of said letter of compliance dated 25.10.1997 in their W/S and the reasons are again known to them.
14.3 During cross-examination dated 04.12.2018 (at page no.1), it was admitted to be correct by DW1 that the pipes laid for the strong water storm in the work in question was to be tested. It was also deposed by him that it was to be tested after its laying. At page no.2, it was also deposed by him that he know the procedure, how the pipe lines had to be tested in the given conditions of the Contract. At page no.2 itself, while the witness was asked about the specifications regarding the testing of pipes, no answer was given by him by stating that without referring CPWD Specifications, he cannot give any answer. It was also admitted to be correct by him that without looking CPWD Specifications, he was not aware of the procedure. At page no.3, it was promised by CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 18 of 44 DW1 to bring the relevant record i.e. Testing Register. It was also admitted to be correct by him that the installation of pipes had to be done in dry conditions under sub-soil. During cross- examination dated 07.12.2018 (at page no.4), it was deposed by him that he was not aware about the CPWD Specifications in respect of testing of laid RCC pipe line. At page no.5, it was also deposed by him that it was revealed that the original records of testing was not available in the division, when the said record was desired by the plaintiff under RTI. At page no.6, it was deposed by him that the copy of Testing Register was not filed by DDA. During cross-examination dated 02.04.2022 (at page no.2), it was deposed by him that the testing was done as per CPWD Specifications, which was part of agreement.
14.4 In the cross-examination dated 10.03.2022 (at page no.2), it was deposed by him that the testing of RCC pipes was done but he was not aware whether any record of the said testing was filed in the case. It was also deposed by him that he cannot tell the procedure followed for the testing. It was also deposed by him that he cannot tell the amount given on account of agreement, clauses and terms and conditions. During cross-examination dated 01.07.2022 (at page no.3), it was also deposed by him that he cannot admit or deny whether RCC pipeline was tested by filling up with water from chamber to chamber for 2.5 meters head and for retaining water in every chamber at start and ends of every chamber constructed 0.345mm thick brick work pardy walls with 12mm coarse and cement plaster. It was admitted to be correct that during the testing of complete RCC pipeline, it was observed that CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 19 of 44 54 joints of pipe were found sweating for which CC 1:2:4 and in centering-shuttering works were done by the plaintiff. It was also deposed by him that he cannot tell as to what amount was added in the justification for testing of pipeline. During cross-examination dated 05.07.2022, (at page no.1), it was also deposed by him that he cannot admit or deny whether the questioned work RCC columns upto floor 2 level and its centering-shuttering were constructed through extra item no.1/1 and 1/2.
14.5 Hence, on the basis of the pleadings of the parties and in the light of admission of letter dated 15.09.1997 and 25.10.1997 (Ex-PW1/8) in the W/S, the plaintiff has proved this claim on the scale of preponderance of probabilities. Moreover, the defendants did not deny / dispute Annexure-III (Ex-PW1/9) which was filed alongwith the plaint (Showing the calculation of the amount claimed in the present claim).
15. Claim No.4 -
15.1 It is the plea of the plaintiff that the stipulated period of contract was 24 months and it was imperative that the whole work had to be completed within said period. That accordingly, the plaintiff mobilized their resources. However, the defendants were found wanting in the discharge of their reciprocal obligations. That defendants also failed to obtain the permission of the Municipal authorities for road cutting in time due to which no work could be carried out from 27.05.1998 to 23.06.1998 (28 days). That this fact was communicated to the defendants vide letter dated 30.05.1998 but the same was not responded. That during this period of CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 20 of 44 complete stoppage, the plaintiff had to incur expenditure on running of diesel pump round the clock for de-watering to stop rising of sub-soil water; the machinery, tools and plants, centering & shuttering and other equipment also remained idle; the plaintiff had to disburse salaries to their staff, establishment watch and ward etc. That supply of stipulated materials, being the contractual obligations of the defendants, the consequences for non-supply have to be to their account. That vide letter dated 30.05.1998, the defendants were intimated that the plaintiff had suffered losses to the tune of Rs.20,980/- per day.
15.2 It is the plea of the defendants that the entire claim of the plaintiff was wrong and denied. That the letter of the plaintiff dated 30.05.1998 was duly replied. That as per the cement register maintained by the defendants, cement was being regularly issued to the plaintiff, which shows that the work was under progress and the same was never stopped.
It is pertinent to mention here that there is no letter / document placed on record nor it was pleaded as to by which letter, the letter of the plaintiff dated 30.05.1998 was duly replied by the defendants as pleaded. In the absence thereof, it can be safely presumed that the said letter of the plaintiff was never replied by the side of the defendants.
15.3 During cross-examination dated 02.04.2022 (at page no.3), it was admitted to be correct by DW1 that cement and steel were stipulated items, which were to be supplied by DDA. It was also deposed that he cannot say if hindrances were reported by the contractor. It was also admitted that Hindrance Register (EX-
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 21 of 44DW1/PX24) was also maintained by the department. During cross- examination dated 01.07.2022 (at page no.3), a question was put to DW1 which reads as :
"Q. Please tell by which mean and mode, DDA objected the claim of the plaintiff submitted for the period 27.05.1998 to 23.06.1998? Ans. It was duly replied in my evidence affidavit."
15.4 It is not out of context to mention here that in the evidence affidavit (Ex-DW1/A) filed by DW1, it is stated in para (9) that the letter of the plaintiff dated 30.05.1998 (Ex-PW1/10) was duly replied but the whole of the affidavit is silent as to when and by which letter the same was replied as claimed by the defendants.
It was also deposed by him that he was not aware if any payment was made to the plaintiff for the claim no.4. The plaintiff has filed Annexure-IV (Ex-PW1/11) alongwith the plaint itself but the same is neither disputed nor denied by the side of the defendants. The reasons are best known to them. The defendants also have failed to reply to the letter dated 30.05.1998 (Ex- PW1/10) sent by the plaintiff to them.
The plaintiff has specifically claimed a sum of Rs.20980/- per day for the losses suffered to him in the letter dated 30.05.1998 (Ex-PW1/10). The plaintiff has claimed the losses for the period from 27.05.1998 to 23.06.1998 and the same comes to Rs.587440 @ Rs.20980 per day.
16. Claim No.5 -
16.1 The plaintiff claims for extra lift for filling excavated earth in trenches beyond initial lift of 1.5 meters. It is the plea of the CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 22 of 44 plaintiff that as per item no.4 of the Schedule of Quantities, the scope of work was defined as "Filling available excavated earth in trenches, plinth, sides of foundations etc. in layers not exceeding 20cms. In depth, consolidating each deposited layer by ramming and watering, lead upto 50m and lift upto 1.5m. That since the work done exceeded the initial lift of 1.5m, the plaintiff requested for extra payment in accordance with the terms of the agreement vide letter dated 06.12.1997 but no payment was made. That the payment was admissible as per the agreement.
16.2 It is the plea of the defendants that the claim was wrong and denied. That the payment was made to the plaintiff as per Agreement no.4 of the Schedule of Quantities. It is denied by the defendants that payment was to be made as per item no.2 of the Schedule of Quantities since the item was applicable for additional lift of 1.5 m or part thereof. That the payments were to be made only under the terms of agreement. That at the time of signing of agreement, enhancement of the rate was done and subsequently, the rate was enhanced by 21.93% for operation of clause.
It is very specifically pleaded by the plaintiff that since the work exceeded the initial lift of 1.5m, the plaintiff requested for extra payment vide letter dated 06.12.1997 but nothing was paid. It is pertinent to mention here that in the W/S filed by the defendants, there is no denial to the said letter dated 06.12.1997 of the plaintiff. The reasons are best known to the defendants. 16.3 During cross-examination dated 01.12.2018 (at page no.5), it was admitted to be correct by DW1 that in terms of CPWD specifications of earth work, it does not state that rates for CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 23 of 44 additional lift of excavation and filling & earth-filling in or under water were inclusive. During cross-examination dated 20.11.2019 (at page no.1), it was admitted to be correct by DW1 that earth filling upto 1.5m was included in the work contract. It was also deposed by him that he do not know as to how many meters, earth filling was done by plaintiff. It was also deposed that the payment of earth filling beyond 1.5 m was paid by DDA as per item no.2 Schedule of Quantities. During cross-examination dated 18.6.2022 (at page no.3), it was also admitted to be correct by him that the work of earth-filling and laying of shattering-shuttering was not done in the sub-soil. During cross-examination dated 01.07.2022 (at page no.3 and 4), it was deposed by him that since, no payment was to be made to the plaintiff qua item no.2 of final bill, there was no need to answer as to what effected quantity of item no.4 was measured and paid by DDA to plaintiff for doing additional lift of fillings beyond 1.5 meters. The witness incorrected to the suggestion put to him that the defendants were liable to make the payment for doing additional work beyond 1.5 m in item no.4. It was also admitted to be correct at page no.4 that the work of earth- filling and additional lift were the last items of the work in question in trench. it was also admitted to be correct by him that it was agreed between the parties that the trench was to be kept free of water i.e. in dry condition till the work in trench was not over.
During cross-examination of the plaintiff (PW1) dated 01.09.2009 (at page no.1), it was admitted to be correct by him that he had executed extra items of work in the present project / work. This leading question itself gives an indication of an CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 24 of 44 admission on the part of the defendants that some extra work was executed for extra item by the plaintiff.
16.4 The plaintiff has filed Annexure A-5 (Ex-PW1/12) alongwith the plaint but the same was never denied nor disputed by the side of the defendants. The defendants also did not deny the sending of letter dated 06.12.1997 but the same was never replaced nor complied with by them. The reasons are again known to the defendants.
17. Claim No.6 -
17.1 It is the plea of the plaintiff that extra payment due to executing the items of (i) extra for each additional lift of 1.5m in soft / loose soil (item no.2), and (ii) filling available excavated earth in trenches in layers of 20cm in depth (item no.4) in or under water or liquid mud. That the instant claim pertains to the earth work, for which extra rate was admissible if the same have to be executed in or under water as provided in item no.3. That for execution of item no.2 & 4, continuous pumping had to be resorted to for lowering down the sub-soil to facilitate the execution of the items. That the defendants paid the plaintiff extra rate for de- watering item no.1 but for unknown reasons, no payment on item no.2 and 4 on the same analogy was made. That the plaintiff wrote to the defendants vide letter dated 06.12.1997, wherein payment was claimed, but no positive response was forthcoming and hence, this claim.
17.2 It is the plea of the defendants that the claim was wrong and denied. That whatever payment was due to the plaintiff was CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 25 of 44 made to the plaintiff as per item no.3 of the Agreement. As per clause 66 (a) of the Agreement, nothing extra over and above the rate was payable. That the plaintiff's reference to CPWD Specifications 1996 was denied as the Agreement between the parties itself was complete.
It is pertinent to mention here that there is no denial / dispute to the said letter dated 06.12.1997 (Ex-PW1/22) in the W/S filed by the defendants. The reasons are best known to them. In these circumstances, it can be safely presumed that the said letter was duly served upon the defendants.
17.3 During cross-examination dated 09.08.2017 (at page no.1), it was admitted to be correct by Sh. Asadur Rehman (DW1) that the average bed level was 206.345m. During cross-examination dated 24.11.2018 (at page no.7/8), it was deposed by the witness that he cannot tell the average depth of filling of the work in question as he had erroneously made calculation of average. During cross-examination dated 01.12.2018 (at page no.1), it was deposed by the witness after verifying from records that the average depth of filling was 4.97m upto crest level of trenches chamber no.1 to 14. During cross-examination dated 01.12.2018 (at page no.1 & 2), it was deposed that the average top level of depth filling for chamber no.1 & 2 was 214.53m and the average base level of depth filling from F02 to 650, it was 206.34. At page no.3, it was also deposed by him that the details of average depth filling upto crest level was on page no.29, 30, 31 and 34 of MB No.9595. During cross-examination dated 02.04.2022 (at page no.1), it was admitted to be correct that the work in sub-soil was to CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 26 of 44 be done in dry conditions. It was also deposed that he cannot tell exactly as to what was the sub-soil water level for the work in question. After going through the judicial record, it was deposed by DW1 that the Measurement Book was not there on record but while his attention was drawn towards document Ex-DW1/PX1, the same was admitted to be the copies of the Measurement Book. At page no.3, it was also admitted to be correct by him that average sub-soil was also recorded as 212.200. During cross- examination dated 01.04.2022 (at page no.1), it was admitted to be correct by DW1 that additional lift of excavation, earth-filling and additional lift of earth filling were also executed in or under water. At page no.2, it was also deposed by him that he cannot say exactly as to when were the payments made by the defendants whether it was through running bills or final bills. During cross- examination dated 18.06.2022 (at page no.2), It was also deposed by him that he was not aware that there was any Agreement regrading ALR and AHR between the parties. At page no.3, it was also admitted to be correct by him that the work of earth-filling and laying of shattering-shuttering was not done in the sub-soil. It was also deposed by him that the depth of excavation and sub-soil level was different for different chambers. At page no.4, it was deposed by the witness that for the work done by Contractor (which does not exist in the Schedule of Quantity), the same was to be taken up as extra item.
17.4 In the subsequent cross-examination dated 01.07.2022 (at page no.2), it was also deposed by him that he was not aware if extra item no.1/1 ad 1 /2 were also paid in Agreement no.13 of CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 27 of 44 extra work. At page no.3 and 4, it was deposed by him that since, no payment was to be made to the plaintiff qua item no.2 of final bill, there was no need to answer as to what effected quantity of item no.4 was measured and paid by DDA to plaintiff for doing additional lift of fillings beyond 1.5 meters. The witness incorrected to the suggestion put to him that the defendants were liable to make the payment for doing additional work beyond 1.5m in item no.4. it was also admitted to be correct at page no.4 that the work of earth-filling and additional lift were the last items of the work in question in trench. it was also admitted to be correct by him that it was agreed between the parties that the trench was to be kept free of water i.e. in dry condition till the work in trench was not over. It was further deposed by him that he do not possess any other document to show that payment was ever made by the defendants to the plaintiff for keeping the trench free of water. During cross-examination dated 05.07.2022 (at page no.2), it was admitted to be correct by him that above the RCC pipe-line, earth- filing can be done only after completion of both side chambers. It was also admitted to be correct by him that for the period from 11.02.1999 to 24.02.1999, the DDA itself recorded hindrance for 14 days due to non-availability of 16mm dia, so required for construction of columns. At page no.1, it was also deposed by him that he is not aware whether the plaintiff had ever asked DDA for payment of extra rates on the stipulated quantities and rates then provided in the Schedule of quantity of agreement.
During cross-examination of the plaintiff (PW1) dated 01.09.2009 (at page no.1), it was admitted to be correct by him CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 28 of 44 that he had executed extra items of work in the present project / work. This leading question itself gives an indication of an admission on the part of the defendants that extra work was executed for extra item by the plaintiff.
17.5 The defendants did not deny nor complied with the letter dated 06.12.1997 (Ex-PW1/22). Moreover, the plaintiff has placed on record Annexure-V (Ex-PW1/12) which was filed alongwith the plaint itself but was never denied nor disputed by the side of the defendants for the reasons best known to them.
18. Claim No.7 -
18.1 The plaintiff has claimed for providing centering & shuttering at height of more than 3.5 meters. It is the plea of the plaintiff that item nos.9, 10 & 11 of the Schedule of Quantities provided for executing RCC work upto floor 2 level and as per para 5.4.11.3 of the CPWD Specifications, 1996, Volume-II (Page
89), RCC work was to be measured separately. That item no.5/16 (p.92) of DSR, 1997 provides for extra payment for additional height in centering & shuttering for height more than 3.5 meters @ Rs.42.40 per Sq.meter for every additional height of 1 meter or part thereof. That the work done above 3.5 meters was payable extra in terms of CPWD Specifications and the rate given in the DSR. That the average height of the manholes was about 8 meters. That the plaintiff duly intimated the defendants that they were entitled to extra payment in terms of DSR 1997 vide their letter dated 25.10.1997 but for unknown reasons, no payment was made.
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 29 of 44That since the claim was based on agreement and DSR, the same was due and payable.
18.2. It is the plea of the defendants that the claim was wrong and denied. That the claim of the plaintiff has already been paid under the agreement item no.17, which is for payment at all height. That the plaintiff's reference to the CPWD Specifications 1996 or DSR 1997 are denied. That the payment for all work done by the plaintiff has been paid to him as per agreement. That this claim is repetition of claim no.1.
18.3 During cross-examination dated 01.04.2022, (at page no.4), a question was put to DW1 whether he can tell the height of a floor but the witness did not tell the same. It was replied by him that it was not a building work.
18.4 In his cross-examination dated 10.03.2022 (at page no.1), it was deposed by Asadur Rehman (DW1) that there was requirement of shuttering for C.C. It was also deposed by him that he do not remember whether any payments for the shuttering for the work of C.C was made for the work in question. During cross- examination dated 08.04.2022 (at page no.1), it was also deposed by DW1 that he had no idea if the claims raised by the plaintiff before DDA were ever objected by DDA. It was also deposed by him that he cannot say as to what amount was paid to the plaintiff.
During cross-examination dated 09.08.2017 (at page no.2), it was deposed by DW1 that average depth of excavation was 8.18 meter. During cross-examination dated 01.12.2018 (at page no.2), it was also admitted to be correct by DW1 that the average earth filling from crest level to the top level was 5.04 meters. During CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 30 of 44 cross-examination dated 01.04.2022 (at page no.4), it was deposed by DW1 which reads as :-
"Q. Can you tell the height of a floor for the work in question? Ans. It is not a building work. (Vol. It was the work which was executed below the ground level)."
During cross-examination dated 10.03.2022 (at page no.1), it was deposed by DW1 that the work of RCC cannot be said completed in the absence of centering-shuttering and plastering. It was also deposed that there was requirement of shuttering for C.C. It was also deposed by him that he do not remember whether any payments for shuttering for work of C.C was made for the work in question. It was further deposed by him that he cannot tell the rates of RCC work and CC work executed in or under water.
During further cross-examination dated 08.04.2022 (at page no.2 Pre-lunch session), it was deposed by DW1 that he cannot tell when for the item no.9-11 of RCC above floor 2 level, payments were made by DDA to the plaintiff. During cross-examination dated 16.06.2022 (at page no.3), it was admitted by DW1 that item no.9-12 extra item no.1/1 and 1/2 have been paid upto floor 2 level in the questioned work.
18.5 It is very specifically pleaded by the plaintiff that the defendants were duly intimated by him that he was entitled to extra payment in terms of DSR, 1997 vide letter dated 25.10.1997 (Ex- PW1/8) but the W/S is silent regarding the said letter. The defendants have failed to deny / dispute the said letter of the plaintiff. In the absence thereof, it is presumed that it was duly served upon the defendants but was never replied nor complied CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 31 of 44 with. The plaintiff has claimed the amount @ Rs.169.60/sq.meter through the said letter.
It is also pertinent to mention here that the plaintiff has filed Annexure VII (Ex-PW1/14) which was filed alongwith the plaint itself, wherein the amount @ Rs.169.60/sq.meter was claimed. This Annexure was never denied nor disputed by the side of the defendants.
19. Claim No.8 -
19.1 The plaintiff has claimed for extra expenditure on continuous de-watering, idle tools and plants, machinery, equipment idle establishment and labor and loss of profit during the period of no work from 11.02.1999 to 24.02.1999 for non- supply of cement and steel. It is the plea of the plaintiff that claim no.4 may be read as part of pleadings under this claim also. That when the work was for due to non-supply of cement and steel from 11.02.1999 to 24.02.1999, in the absence of the stipulated materials, no work was possible at the site. That the plaintiff has to resort to continuous de-watering to lower the sub-soil water level. That during this period of complete stoppage, the plaintiff had to incur expenditure on running of diesel pump round the clock for de-watering to stop rising of sub-soil water, the machinery, tools and plants, centering & shuttering and other equipment also remained idle; the plaintiff had to disburse salaries to their staff, establishment, watch and ward etc. and also suffered loss of profit during this no-work period. That the factum of suffering of losses was repeatedly brought to the notice of the defendants vide letter CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 32 of 44 dated 15.02.1999 (Ex-PW1/15) and 17.02.1999 (Ex-PW1/16) but no reply was received from the defendants. That it was duly intimated to the defendants that the plaintiff was suffering losses to the tune of Rs.14,800/- per day. That the claim was justified as the suspension was wholly and exclusively attributable to the defendants.
19.2 It is the plea of the defendants that this claim was wrong and denied. It is also pleaded that the cement register clearly shows that cement was being regularly issued to the plaintiff during the period in question and that there was stoppage of work and the same continued.
It is pertinent to mention here that in the corresponding para of W/S, the defendants did not deny / disputed the sending of letter dated 15.02.1999 and 17.02.1999 by the plaintiff to them. The reasons are best known to the defendants. It is also pleaded by the plaintiff that vide the letter dated 15.02.1999 (Ex-PW1/15) and 17.02.1999 (Ex-PW1/16), that the factum of losses suffered to him was brought to the notice of the defendants. That it was also reported to the defendants that the plaintiff suffered losses to the tune of Rs.14800/- per day but were not replied. The defendants did not deny / dispute the pleadings of the plaintiff regarding the sending of the letters dated 15.02.1999 (Ex-PW1/15) and 17.02.1999 (Ex-PW1/16) for the reasons best known to them. 19.3 During cross-examination dated 02.04.2022 (at page no.3), it was admitted to be correct that cement and steel were stipulated items, which were to be supplied by DDA. It was also deposed that he cannot say if hindrances were reported by the contractor. It was CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 33 of 44 also admitted that Hindrance Register (EX-DW1/PX24) was also maintained by the department. During cross-examination dated 08.04.2022 (at page no.2), it was deposed by him that he cannot tell exactly as how much cement was issued for the purpose of RIS items. It was also deposed by him that he cannot say if no cement was ever issued for RIS items.
Moreover, the defendants did not deny / disputed Annexure- VIII (Ex-PW1/A) which was filed alongwith the plaint itself.
20. Claim No.9 -
20.1 The plaintiff has claimed Rs.6,49,257/- on account of short payment due to rates of deviated quantities. It is the plea of the plaintiff that it was not a matter of dispute that certain items had exceeded the deviation limit provided in the contract. That as per clause 12(A) of the Agreement, deviated quantities were to be paid to the petitioner on market rates. That the field staff had prepared a detailed note for approval of the deviated quantities and the rates on that account, a payment of more than Rs.27.68 Lakhs was recommended and this payment was also approved by Executive Engineer concerned and by higher officials but no payment was released to the plaintiff.
It is the plea of the defendants that the present claim was wrong and denied. It is also pleaded that revision was not admissible in regard to certain items exceeding the deviation limit. That whatever payment was required to be made had been made under claim no.6 & 12 of the Agreement. That according to clause no.6 & 12, no revision of rate was admissible.
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 34 of 4420.2 During cross-examination dated 04.12.2018 (at page no.6), a suggestion was put to the DW1 that in terms of justification prepared by DDA, the cost of the work in question was at 25.23% above DSR 1993. The witness deposed that he can answer only after verifying the records but was not carrying the relevant record with him on the day of his examination. During cross-examination dated 08.04.2022 (at page no.2), it was deposed by him that he was not aware whether the rates for deviated quantities were submitted by the plaintiff to the defendants. During cross-examination dated 28.04.2022 (at page no.1), it was deposed by him that he do not have any knowledge whether DDA has served deviation statement upon the plaintiff. It was also deposed by him that he was not aware if DDA has ever taken consent of plaintiff prior or after sanction of Deviation Statement. The witness incorrected to the suggestion that prior to award of questioned work, analysis of justification was prepared on the basis of market rates as on 1.11.1996, on the basis of which, DDA has sanctioned the Deviation Statement AHR. After drawing the attention of the witness towards document Ex-DW1/PX19 (Colly.), the same was admitted to be correct by him. At page no.2, it was also deposed by him that he cannot tell on what basis , the market rates as on 01.11.1996 were adopted for sanction of Deviation statement on 25.05.1999 after about 31 months. It was also deposed by him that he cannot say if the market rates as on 15.05.1999 were applicable and the same were to be adopted for sanction of deviation statement for the work in question. During cross-examination dated 18.06.2022 (at page no.1), it was also deposed by him that CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 35 of 44 he was not aware when was the deviation statement under RTI supplied to the plaintiff.
20.3 During cross-examination dated 05.07.2022 (at page no.2), it was deposed by him that he is not aware whether DDA has given any notice to the plaintiff for withdrawal of deviated quantities. It was however, volunteered by the witness that it is a matter of record. It was also deposed by him that he is also not aware whether DDA has given any order to the plaintiff for execution of deviated quantities. It was however, volunteered by the witness that the deviation statement is already on record. The witness incorrected to the suggestion that the deviation statement was silent regarding the said 'notice' or said 'order'. It was also deposed by him that he is not aware as to when did DDA (during currency of contract) objected or disputed the analysis of rates for execution of extra work and deviated quantities beyond the deviation limit of the agreement. It was however, volunteered by the witness that it was a matter of record.
20.4 It has been specifically pleaded by the plaintiff in the plaint itself that the field staff had prepared a detailed note for approval of the deviated quantities and the rates on that account, a payment of more than Rs.27.6 Lacs was recorded and approved by Executive Engineer and higher officials but no payment was released to the plaintiff. The defendants did not bother even to deny or dispute the said pleadings of the plaintiff in their W/S. The reasons are best known to them. After the perusal of the cross- examination of DW1, it has now become clear that the witness of defendants i.e. DW1 was not aware if the rates as on 01.01.1996 CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 36 of 44 were adopted while sanction of deviated statement on 25.05.1999 i.e. after 31 months. It has also become clear now that the copy of deviation statement was provided to the plaintiff only on an application filed under RTI Act.
20.5 It is also pertinent to mention here that the plaintiff has filed on record Annexure-IX (Ex-PW1/18) which was filed alongwith the plaint. The plaintiff has clearly described the quantity, permissible deviation limit, market rate, rate paid alongwith difference in amount etc. The plaintiff has given the details of calculation of the amount claimed in the present claim but the same is neither denied nor disputed by the side of the defendants. The reasons are best known to the defendants. There is nothing on record to disbelieve the pleadings and the evidence of the parties lead in their case.
21. Claim No.10 -
21.1 The plaintiff has claimed Rs.50,000/- on account of withholding of amount due to Quality Control observations. It is the plea of the plaintiff that the defendants have illegally deducted an amount of Rs.77,000/- on account of Quantity Control Observations. It is also the plea of the plaintiff that no details were ever been supplied to him and hence, the said deduction is not only illegal but also against the principles of natural justice. That the plaintiff had carried out the work entirely in accordance with the CPWD Specifications and that this fact stands recorded by way of certificate on each bill paid to the plaintiff. That the reduction of any amount was not proper and liable to be refunded.
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 37 of 4421.2 In the W/S, the contents of present claim are admitted to the extent of withholding of amount by the defendants but the rest of the contents of the para are denied. It is also pleaded that various inspections were carried out by the Quality Control Staff. That the defendants were justified in withholding the amount and that the amount withheld shall be released after all the observations made by the Quality Control Staff were settled and fulfilled. During cross-examination dated 24.11.2018, (at page no.2), it was admitted to be correct by Sh. Asadur Rehman (DW1) that in case, there had been any quality issue pending from the Agency, the agency cannot be relieved of responsibility without rectifying the defect. A question was also asked to the witness that in case, the Quality Control issues remains pending, whether the Agency cannot absolved of responsibility without addressing / rectifying such issues, the witness showed his inability to depose anything about the question. During subsequent cross-examination dated 24.11.2018 (at page no.4), the witness was asked to tell the recovery made from the plaintiff after the final bill from the work in question. The witness stated that he cannot say but it was matter of record. At page no.6, the witness answered similarly to a question that whether any notice was given by DDA to the plaintiff for the recoveries made from the amount withheld. The witness also deposed similarly on the very same page while he was asked whether all the correspondence exchanged by DDA with the plaintiff in respect of the work in question was filed on record. 21.3 At page no.7, it was also deposed by him that no document was filed showing the plaintiff was put to notice of the recoveries.
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 38 of 44During cross-examination dated 12.12.2018 (at page no.2), it was incorrected to suggest by DW1 that the quality control observation was never conveyed with the plaintiff. During cross- examination dated 01.04.2022, (at page no.3), it was admitted to be correct by Sh. Asadur Rehman (DW1) that DDA has given certificates for every running and final bills that the work has been carried out as per CPWD Specifications. It was also deposed that there was no inspection of CTE or Quality Control Wing of DDA done after completion of work but the same was done during the execution of work. It was also deposed by him that he cannot state whether any inspection report was ever conveyed to the plaintiff. It was however, volunteered by the witness that no inspection can be carried out without the presence of the contractor or his representative. During cross-examination dated 08.04.2022 (at page no.1), it was deposed by DW1 that he was not aware whether any notice was given by DDA to the plaintiff regarding the quality control. It was also deposed by him that the plaintiff was duty bound to keep the surface in dry condition till the completion of work as it was as per the terms and conditions of the Agreement. During cross-examination dated 05.07.2022 (at page no.3), it was deposed by DW1 that he was not aware whether copy of Quality Control Inspection report was ever given to the plaintiff or not. It was also deposed by him that he was not aware whether any notice / letter was written to the plaintiff by DDA regarding the defects for the deduction of the amount. It was also deposed that he was not aware whether any copy of statement of deduction was supplied to the plaintiff or not prior or after the deduction.
CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 39 of 4421.4 So, after the consideration of the evidence lead by DW1, it has now become clear that the work was carried out by the plaintiff as per CPWD Specifications and also that there was no inspection of CTE or Quality Control Wing of DDA done after completion of work. The witness of defendants i.e. (DW1) is also not aware whether any inspection report was ever conveyed to the plaintiff. The witness is also not aware whether any notice was given to the plaintiff regarding the Quality Control. He is also not aware if any notice / letter was written to the plaintiff by the defendants regarding defects for deduction of amount. The witness of defendants (DW1) is also not aware if copy of statement of deduction was supplied to the plaintiff or not before or after the deduction.
21.5 The defendants have failed to deny specifically the pleadings of the plaintiff in their W/S qua the present claim.
The evidence affidavit of DW1 is silent as to what amount was withheld by the defendants. It is only during cross- examination of DW1 dated 24.11.2018 (page no.3), it has come out that a sum of Rs.1843/-, Rs.222.20/- in 13 th and final bill was sanctioned. At page no.5, it is stated that a sum of Rs.4947/- dated 23.08.1998, Rs.980/- dated 28.03.2001, Rs.154/- dated 21.06.2000, Rs.756/- dated 28.03.2001, Rs.1268/- (MB No.9587 at page no.84), Rs.806/- (MB No.9587 at page no.83), Rs.140/- dated 31.07.2001, Rs.9670/- dated 04.08.2010, totaling to Rs.18,721/- was recovered. The plaintiff has claimed a sum of Rs.50,000/- under the present claim. In the notice dated 04.05.2000 (Ex- PW1/30), the plaintiff has claimed the same amount. Admittedly, CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 40 of 44 as per DW1, only a sum of Rs.18721/- (Supra) in total was deducted.
So, the plaintiff is found entitled to the remaining amount i.e. Rs.50,000 - Rs.18721 = Rs.31279/-.
22. Claim No.11 -
22.1 It is the plea of the plaintiff that he had been denied of due and genuine payments for no cogent reasons which forced him to approach the court for redressal of grievances. That accordingly, the plaintiff was entitled to interest from the date of filing of the suit. That since, the transaction was commercial, the interest should be at the market rate i.e. 18% p.a. In the W/S, the defendants have denied the present claim of the plaintiff.
22.2 During cross-examination dated 07.12.2018 (at page no.2), it was deposed by Sh. Asadur Rehman (DW1) that he had verified the records pertaining to correspondence with the contractor but he did not find any notice served upon the plaintiff for recovery of penal rates. During cross-examination dated 05.07.2022 (at page no.3), it was admitted to be correct by him that whenever, inadvertently or by mistake, if any payment was made by DDA to contractor, the same was recovered by DDA with interest. It was also deposed by him that he was not aware whether the agreement between the parties prohibits taking and paying the interest on commercial transactions. The witness incorrected to the suggestion put to him that DDA was liable to pay the amount in question to the plaintiff alongwith interest @24% p.a. CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 41 of 44 Admittedly, there is no rate of interest fixed / settled between the parties. Keeping in view the commercial nature of the transaction, plaintiff is held entitled to interest @ 10% per annum from the date of the institution of the suit till its realization.
23. In cross-examination dated 01.12.2018 (page no.5), it was admitted to be correct by DW1 that the work was to be executed as per CPWD Specifications. During cross-examination dated 04.12.2018 (page no.6), witness admitted it to be correct that the instant work was awarded to the plaintiff only after finding the bid offered by him was conducive in terms of justification prepared by the DDA before award of work. In cross-examination dated 02.04.2022 (at page no.2), it was admitted to be correct by DW1 that the assigned work was completed by the plaintiff. In cross-examination dated 01.04.2022 (at page no.2), DW1 was asked to answer after referring the judicial record as to what payments were finally made by the defendants to the plaintiff qua the items. The witness showed his inability and replied "he cannot tell". In cross-examination dated 10.03.2022 (at page no.3), it was also deposed by DW1 that he cannot say if the height of the wall of chambers was 7.73 meters. On 08.04.2022 (at page no.1), it was deposed by DW1 that he had no idea whether the claims raised by the plaintiff before DDA were ever objected by DDA.
24. In cross-examination dated 16.04.2022 (page no.1), DW1 admitted that the Letter dated 25.10.1997, 06.12.1997, 03.01.1998, 12.03.1998, 27.04.1998, 30.05.1998, 27.06.1998, 18.11.1998, 15.02.1999 and 17.02.1999 were supplied by DDA to the plaintiff CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 42 of 44 under RTI. The witness also admitted the document (Ex-DW1/PX-20) dated 04.02.1998 that it was also issued by DDA under RTI. At page no.3 of he cross-examination dated 16.06.2022, it was deposed by DW1 that he filed his evidence affidavit after gone through the Agreement (Ex-PW1/1), scope of work executed at the site, conditions of contract, records of work in question, paid bills, measurement book of works, level book relating to earthwork, sub- soil items and quality control file of division office / sub-division office / Accounts branch / AE (planning) and structural drawings and site order book. Vol. I have gone through the record only, which was available. I cannot tell as to what was the record which was not gone through by me before the filing of my evidence affidavit.
25. During cross-examination dated 18.06.2022 (page no.4), it was also deposed by DW1 that the tender in question was based on DSR 1993 & CPWD Specifications were to be followed. It was also admitted to be correct by him that in clause 11 & 12 of the Agreement between the parties, there was reference of DSR 1993 & CPWD specifications Vol.1 to 6.
26. The plaintiff is supposed to prove his case on the scale of preponderance of probabilities. On the basis of the material available on record and the evidence lead by the parties, it is established that the plaintiff has proved his case on the said scale. Nothing material has come out of the cross-examination of the plaintiff (PW1) to support the defence of the defendants in this case.
Hence, on the basis of the above discussion (claim-wise) for claim No.1 to 11 and also on the basis of the pleadings and the CS DJ No.78498/16 Vijay Kumar Goel Vs. DDA & Anr. Page 43 of 44 evidence brought on record by the parties, both the issues are decided in favour of the plaintiff and against the defendants.
27. Issue No.(4) - RELIEF :
In view of the findings on the issues No.1 to 3 (Supra), the suit is decreed with costs. The plaintiff is found to entitled to the following reliefs :-
(i) To a decree for a sum of Rs.66,51,056/- (Rs.53,170/- Claim-1, Rs.17,12,080/- Claim-2, Rs.9,89,670/- Claim-3, Rs.587440/- Claim-4, Rs.3,51,090 Claim-5, Rs.12,53,589/- Claim-6, Rs.8,16,281 Claim-7, Rs.2,07,200 Claim-8, Rs.6,49,257 Claim-9, Rs.31,279 Claim-10) alongwith interest @ 10% per annum from the date of the institution of the suit till its realization.
(ii) Costs of the suit.
Decree-sheet be prepared accordingly.
Announced in the Open Court
on 06h of August, 2022.
(RAJINDER KUMAR)
Additional District Judge-2 (North-West)
Rohini Courts: Delhi
CS DJ No.78498/16
Vijay Kumar Goel Vs. DDA & Anr. Page 44 of 44