Delhi Development Authority vs Shri Sat Bhushan

Indermeet Kaur, J.—This second appeal has impugned the judgment and decree dated 25.7.2008 which had endorsed the finding of the trial judge dated 30.4.2007 whereby the suit of the plaintiff Sat Bhushan had been decreed in the sum of Rs. 1,50,000/- along with interest @ 6% per annum.

The trial judge whose findings were endorsed by the Appellate Court had examined the oral and documentary evidence including the agreement entered into between the parties which was the foundation of the claim of the plaintiff which isEx.PW-1/1. The court had framed six issues. On the basis of the oral and documentary evidence led before it, the court held that the plaintiff is entitled to the recovery of the afforested amount. The agreement Ex. PW-1/1 and its detailed clauses had been gone into.

Counsel for the Appellant has urged that the impugned judgment has erred in granting the amount of Rs. 50,000/- as loss of profit when admittedly the plaintiff had not led any evidence on this score. The trial judge whose finding was endorsed by the appellate court had returned a finding in para 18. Reliance had been placed upon a judgment of the Supreme Court reported in Harinder Anand Vs. D.D.A., where the loss of profit @ 10% had been granted holding it to be reasonable as the recession of the contract was illegal. There is no fault in this finding.

Counsel for the Appellant has further argued that Clause 10, General Condition No. 1 of the agreement Ex.PW-1/1 clearly stipulates that even if there isa fault on the part of the department, a suit for compensation and damages couldn''t be filed; such a suit was not maintainable. Written statement filed by the department has been perused. Although the Defendant had relied upon Clause 10of the agreement Ex.PW-1/1 but no specific plea had been set up that the suit of this nature was not maintainable; no specific issue on the maintainability of the suit had also been framed. The issues framed by the trial court reads as follows:

Whether the plaintiff is entitled to the recovery of Rs. 1,50,000/- as claimed? OPP

Whether the Defendants had illegally resided the contract vide letter dated 31.08.98? OPP

Whether the plaintiff is entitled to the declaration as prayed for?

Whether the plaintiff is entitled to the injunction as prayed for?

Whether the plaintiff is entitled to the interest at the rate of 18% and if so, for what period? OPP 6. Relief.

No such plea having been taken prior to today such an argument cannot be entertained before the second appellate Court as to answer this query; the document Ex.PW-1/1 has necessarily again to be scrutinized which is a fact finding and hands of this Court are tied as far as fact findings are concerned. Unless there is a perversity, this Court cannot interfere in finding of fact; no such perversity is made out.

The Court had held that the plaintiff is entitled to the declaration, injunction prayed for by him as also the amount which finding was returned in his favour.

The question of law has been framed in the body of the appeal at page 3. They read as follows:

i. Whether the Ld. Trial Court without the documentary evidence of payment or income tax records, account books can grant the amount as allowed in the present suit?

ii. Whether the judgment can be passed against the specific terms of the contract under Clause 10 and specification and condition No. 1?

iii. Whether the Ld. Trial Court allow watch and ward against the specific terms of the contract wherein the contractor has to be put their own guards till the execution of the work?

iv. Whether the Court below has passed the judgment against the specific terms of the contract wherein the DDA is entitled to forfeit the earnest money?

v. Whether the DDA as not followed the contract between the parties and by doing so the court has acted against the law and judgment passed by this Hon''ble Court?

These are all fact based. No substantial question of law has arisen. The appeal as also the pending application is dismissed.