Delhi District Court
Veena Bhatia vs National Building Construction on 13 February, 2015
Veena Bhatia Vs National Building Construction
IN THE COURT OF CIVIL JUDGE02 (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
Presided Over By: SH. VISHAL PAHUJA
In the matter of :
CS No. 514/2014
Veena Bhatia,
J13/1, Second Floor,
Patel Market, Rajouri Garden,
New Delhi 110027 ... Plaintiff
Versus
National Building Construction Corporation Ltd. (NBCC)
NBCC Bhawan,
5th Floor, Lodhi Road,
New Delhi ... Defendant
Date of Institution : 15.05.2010
Date of Reserving Judgment : 12.02.2015
Date of Decision : 13.02.2015
Final Decision : Decreed
J U D G M E N T
(On Suit for recovery of Rs.78,181/)
1. This is a suit for recovery of Rs.78,181/ alongwith pendente lite interest @18% per annum against the defendant.
CS No. 514/14 Page 1 of 11Veena Bhatia Vs National Building Construction
2. Briefly stated, case of the plaintiff is that plaintiff is a proprietor of M/s Accurate Surveyors and works in the field of Land and Quantity Surveyors, Architects Civil Engineers etc. That defendant is a Govt. of India Enterprises had a project of ReDevelopment of Netaji Nagar (Part) & Moti Bagh (East), Netaji Nagar, New Delhi - 110023. The defendant vide its letter dated 09.02.2007 issued notice inviting tender for Soil Investigation of the area mentioned above and sealed offers were invited from the parties as per the tender documents. That plaintiff submitted tender as per direction and terms issued in letter dated 19.02.2007 alongwith Earnest Money Deposit of Rs.15,000/ by way of demand draft/pay order issued in favour of defendant. That plaintiff was awarded work by the defendant vide work order No.NBCC/RE/NN/LOI/SOIL Testing/2007/54 dated 27.02.2007. That on 15.03.2007, plaintiff informed the defendant that he has completed work of soil investigation except for the area under control of CPWD and Airport Authority of India and both are not allowing him to carrying out the investigation work and it was requested to get the said area available to the plaintiff for carrying out his work and plaintiff also requested the defendant for extension of time for two month. On 01.04.2007, plaintiff informed the defendant that plaintiff has completed the soil investigation work at godown site but on the other remaining site, plaintiff is unable to get the access in the area which is under control CS No. 514/14 Page 2 of 11 Veena Bhatia Vs National Building Construction of AAI. On 05.05.2007, area of land which was under control of airport authority was get available to the plaintiff. Immediately, thereafter the plaintiff completed the remaining work of soil investigation. On 11.05.2007, plaintiff informed the project manager that plaintiff has completed the work awarded under the work order No.NBCC/RE/NN/LOI/SOIL Testing/2007/54 dated 27.02.2007. That on 20.05.2007, plaintiff submitted final bill of Rs.3,65,750/ for payments vide its letter No.AS/Vol.Soil/20072008/31 dated 20.05.2007 alongwith final report. That defendant made the payment on 20.08.2007 but withheld Rs.18,287/ which include EMD of Rs.15000/ and Rs.3287/ deducted @5% of the total final bill (Rs.3,65,750/) on account of security deposit under clause 10 of the condition of contract. That apart from Rs.18,287/ defendant on account of alleged pending sanction of extension of time also withheld the amount of Rs.36,575/ due and payable by it in terms of the work order to the plaintiff. That defendant has already sanctioned alleged extension of time. That defendant told plaintiff that the said sum should be released after six month. That defendant has not refunded the said money to the plaintiff after expiry of six month. That plaintiff vide its various reminder letters dated 11.02.08, 11.06.08, 22.07.08, 10.09.08, 17.09.08, 17.10.08, 12.11.08 requested the defendant to release the said payment but all in vain. That plaintiff send a legal notice dated 19.02.2009 to the defendant for payment of sum of Rs. 54,862/ with interest @ 18% per annum but all in vain. That CS No. 514/14 Page 3 of 11 Veena Bhatia Vs National Building Construction defendant was also called upon to pay cost of legal notice Rs. 11000/ Hence, the present suit is filed by the plaintiff.
3. Upon service of summons of the present suit, defendant appeared and filed its written statement (WS) denying the allegations as contained in the plaint.
Defendant in its WS stated that suit is not maintainable because a sum of Rs.18,287/ and further a sum of Rs.36,575/ was forfeited vide letter dated 02.04.2009 by the defendant because plaintiff has not completed the work within 21 days and no extension was sought or granted by the defendant. Thus, on the above said grounds the defendants have prayed that the suit of the plaintiff be dismissed.
4. Plaintiff filed replication to the WS of the defendant denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the replication.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 24.09.2011:
1. Whether the plaintiff is entitled to a decree for recovery of Rs.78,181/? OPP
2. Whether the plaintiff is entitled to pendente lite interest @18% per annum? OPP
3. Whether the time was essence of contract which the plaintiff failed to adhere to. If so, its effect? OPD CS No. 514/14 Page 4 of 11 Veena Bhatia Vs National Building Construction
4. Whether the plaintiff present a report which was not correct and if so, its effect? OPD
6. In order to prove her case, the plaintiff examined one witness namely Sh. Rajesh Bhatia as PW1 who tendered his evidence by way of an affidavit Ex.PW1/A reiterating the same facts as mentioned in the plaint. He also relied upon the documents Ex.AD, Ex.FH, Mark AB, Mark1, Ex.PW1/1, Ex.PW1/3, Ex.PW1/4 (colly) and thereafter, plaintiff closed her evidence.
Defendant, on the other hand, examined one witness namely Sh. S. L. Jain as DW1 who tendered his evidence by way of an affidavit Ex.DW1/1. He also relied upon documents Mark A Colly to Mark D and thereafter, defendant closed its evidence.
7. I have heard the contentions of both the sides and also gone through the record carefully. My issuewise findings are as under:
ISSUE NO.1 Whether the plaintiff is entitled to a decree for recovery of Rs.78,181/? OPP
8. The onus to prove this issue was upon the plaintiff. Admittedly, the defendant has withheld the earnest money of Rs.15,000/, 10% of the total amount towards the compensation of delay i.e. Rs.36,575/ & the security deposit CS No. 514/14 Page 5 of 11 Veena Bhatia Vs National Building Construction of 5% i.e. Rs.3287/. The amount total comes out to be 54,862/ and after including interest @ 18% per annum whichever from 20.02.2008, the amount in total is claimed as Rs.78,181/. As the issue no.3 and 4 have been decided in favour of the plaintiff and against the defendant, so no fault can be attributed upon the plaintiff by any corner. In consequence to the finding given in the issue no.3 and 4 and the evidence led on record, this court is of the view that plaintiff has been able to establish her case by leading cogent evidence and has discharged the onus lying upon her shoulders and she is entitled to recover the above mentioned amount. Accordingly, this issue stands decided in favour of the plaintiff and against the defendant.
ISSUE NO.2 Whether the plaintiff is entitled to pendente lite interest @18% per annum? OPP
9. The onus to prove this issue was upon the plaintiff. Plaintiff has claimed interest @ 18% per annum, which seems to be excessive and exorbitant. In the facts and circumstances of the present case, interest @12% per annum seems to be just and appropriate.
ISSUE NO.3 Whether the time was essence of contract which the plaintiff failed to adhere to. If so, its effect? OPD CS No. 514/14 Page 6 of 11 Veena Bhatia Vs National Building Construction
10. The onus to prove this issue was upon the defendant. Ld. Counsel for defendant argued that plaintiff was supposed to complete the work within 21 days from the assignment of the work but plaintiff failed to complete the same and have only completed after the period of almost 3 months. It is further argued that the work has been delayed due to which damage/loss has been caused to the defendant.
On the other hand, Ld. Counsel for the plaintiff argued that plaintiff was not provided the portion of site which was under the control of Airport Authority of India and CPWD for which plaintiff written a letter seeking extension of time on 15.03.2007 and 01.04.2007 and the same was extended. It is further argued that if the time was essence of contract the defendant could have provided the site in time enabling the plaintiff to complete his work within stipulated period. It is further argued that no loss has been caused to the defendant as no show cause notice or any other legal notice have been issued by the defendant to the plaintiff.
No doubt a clause as to time being essence of contract and extension for delay was incorporated in the contract Ex.DW1/P1 i.e. the admitted document. No doubt there has not been any letter issued by the defendant extending the time period of the contract but the fact that no show cause notice or objection has been raised at any point of time by the defendant and even the report of the plaintiff was accepted without any objection cannot be ignored. It is further important to note here that the plaintiff has written CS No. 514/14 Page 7 of 11 Veena Bhatia Vs National Building Construction two letter dated 15.03.2007 and 01.04.2007 to the officers of the defendant seeking extension of time and informing non availability of the site under the control of the abovesaid authorities. On the letter dated 01.04.2007 there has been receiving given by Mr. P. S. Sarcar, official of defendant to whom the plaintiff was to report as per contract. The onus to prove that no such letter was handed over to the officials of defendant was upon the defendant and defendant was supposed to call the said witness to disprove the same but the defendant has failed to do so. If we go through the clause 22 of the contract Ex.DW1/P1 it also incorporates the provision of extension of delay and as observed above that the defendant has accepted the report of the plaintiff without any objection nor any show cause notice has been issued by the defendant to the plaintiff does not attribute the reason of delay upon the plaintiff. Moreover the clause is more strictly to be interpreted qua the aspect of commencement of work within 10 days of assignment and it does not stress upon its completion within stipulated period. No contrary evidence to the claim of the plaintiff that site was not made available to him in time has been led by the defendant. Further, no evidence has been led by the defendant to show the effect of non compliance of the contract by the plaintiff in time.
In view of the evidence led and the observations given above, this issue stands decided in favour of the plaintiff and against the defendant.
CS No. 514/14 Page 8 of 11Veena Bhatia Vs National Building Construction ISSUE NO.4 Whether the plaintiff present a report which was not correct and if so, its effect? OPD
11. The onus to prove this issue was upon the defendant. Ld. Counsel for the defendant argued that the plaintiff has given the wrong report on soil investigation for which services of the plaintiff were availed. It is further argued that plaintiff has not mentioned the existence of rock strata in his report admittedly whereas he was aware about the same while conducting investigation. It is further argued that defendant has to hire/consult another expert for the same, cost of which has also been burdened upon the defendant further if the report of the plaintiff would have been relied then the purpose of the investigation would have been frustrated as the actual construction bearing capacity of the land could not have been ascertained.
On the other hand, ld. Counsel of plaintiff argued that the plaintiff was only hired for soil investigation and not for the rock investigation. It is further argued that as per the contract plaintiff has investigated the soil and as per bill of quantity the rate was charged as agreed @ Rs.300/ whereas if there would have been rock investigation as part of contract the rate would have been @ Rs.3300/. Arguing further Ld. Counsel argued that in the report, the plaintiff has mentioned that the investigation was only pertaining to the soil and not to the rocks so he was not required to mention the rock strata in his report which otherwise also was informed to the CS No. 514/14 Page 9 of 11 Veena Bhatia Vs National Building Construction officials of defendant at the time of boring.
12. Admittedly, the defendant has accepted the report without any objection. It is also important to note here that no objection was raised by the defendant during the defect liability period of 6 months after receiving the final bill from the plaintiff. So there can be no question that can be raised by the defendant upon the report filed, in his defence at this stage. Secondly, it is also not disputed that the rate of rock investigation is 10 times more than the rate of soil investigation. The rate agreed between the parties qua the soil investigation was @ Rs.300/ or Rs.350/ whereas the document filed by the defendant Ex.PW1/D shows that the rate of rock investigation is Rs.3300/. Hence, the plaintiff was not bound to investigate the rock or to incorporate the rock strata in his report and he has rightly filed the report qua the soil investigation only. DW1 in para no.2 of his affidavit and in his cross examination admitted that the final report is based only on the soil investigation and it is further admitted by him that the contract does not contemplate the investigation of the rocks.
In view of the evidence led and the observations given above, it is found that the report filed by the plaintiff was correct. Accordingly, this issue also stands decided in favour of the plaintiff and against the defendant.
CS No. 514/14 Page 10 of 11Veena Bhatia Vs National Building Construction Relief
13. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is hereby decreed and a decree for recovery of Rs.78,181/ alongwith the interest @ 12% per annum from the date of institution of the suit till realization is hereby passed in favour of the plaintiff and against the defendant. Costs of the suit are also awarded to the plaintiff. Decree sheet be prepared accordingly.
14. File be consigned to the record room after due compliance.
Announced in the open Court (Vishal Pahuja)
on 13.02.2015 CJ02 (South)/Saket Courts
New Delhi/13.02.2015
CS No. 514/14 Page 11 of 11