Jai Singh vs Delhi Development Authority (DDA)

By way of this suit the plaintiff is seeking recovery of Rs. 2,28,68,176/- (Rupees Two Crores, Twenty Eight Lakhs, Sixty Eight Thousand, One Hundred and Seventy Six), along with interest pendente lite and future interest till actual payment, in addition to the costs of the suit. The prayer of the suit as mentioned in the plaint reads as under:

The plaintiff, Mr. Jai Singh, is a construction contractor undertaking the business of construction in the name and style of his sole proprietorship concern by the name of J.S. Constructions.

The defendant i.e., Delhi Development Authority (“DDA”), invited tenders for the construction of 1174 MIG, 210 LIG, and 623 EWS houses at Kondli, Gharoli, Phase II, sub head construction of 176 MIG Houses including internal development group IX.

The plaintiff submitted his tender offer, which was accepted vide letter dated 15.02.1992 and the parties entered into an agreement bearing No. 47/EE/ED-492-93 (“Agreement”), which was later transferred to the contractual jurisdiction of Executive Engineer, Eastern No. 7 and renumbered as Agreement No. 07/EE/ED-7/93-94, and ultimately transferred to Executive Engineer, Eastern Division No. 4.

As per the terms and conditions, it was decided that the work was to be completed within a period of 18 months scheduled to commence from 25.12.1992 and to be completed by 24.06.1994.

Due to certain breaches alleged to be attributable to the defendant, the work could not be completed as per the fixed schedule timeline and it was completed only on 22.02.1997, i.e., after a delay of about 32 months.

Consequently, the defendant issued a completion certificate under Clause 6 of the Agreement and also granted extension of time (“EOT”) up to 22.02.1997 without levy of any compensation under Clause 2 of the Agreement, and also released compensation up to the date of final completion of work in terms of Clause 10CC of the Agreement.

The plaintiff by way of this suit claims further compensation under Clause 10CC as the compensation released in his favour was inadequate particularly when the delay was entirely attributable to the defendant.

The record of all the hindrances aggregating to 649 days was submitted by the plaintiff to the defendant along with the application dated 12.05.1997 seeking EOT.

The aforesaid position with respect to delayed performance was admitted by the Executive Engineer of defendant in his letter dated 15.05.1997, wherein he recommended grant of EOT to the Superintendent Engineer without levy of any compensation in terms of Clause 2 of the Agreement. The same was accordingly allowed by the Superintendent Engineer vide letter dated 23.05.1997.

Subsequently, after repeated requests to the Executive Engineer (DDA) for payment of the plaintiff‟s final bill, the plaintiff, on 20.08.1997 raised a final bill with respect to the undisputed items of work. The said bill was misplaced, and a copy of the bill was again furnished on 23.01.1999, which was again submitted afresh to the Executive Engineer on 10.03.1999 after rectifying the typographical errors.

The said bill was not even acknowledged by the defendant. Hence, by way of present suit, the plaintiff seeks a principal sum of Rs. 1,57,71,156/- along with interest.

The defendant has filed its written statement wherein the defendant vehemently opposed the present suit and also raised preliminary objections qua maintainability of the suit. The stand of the defendant is unequivocal and clear that nothing as claimed in the plaint, is due and payable to the plaintiff.

Based on the pleadings and the documents, this Court vide its Order dated 24.07.2007, framed the following issues for adjudication of the matter by this Court:

Initially, the Issue No. 1 was directed to be heard as a preliminary issue but vide Order dated 15.07.2011, it was agreed between the parties that the said issue may be decided along with other issues.

The parties led their evidence by way of affidavits, wherein the plaintiff examined the following witnesses:

The defendant examined sole witness namely, Mr. M.K. Gupta (DW1), who was posted as an Assistant Engineer with the defendant and he tendered his evidence by way of affidavit exhibited as Ex. DW1/A.

The parties have proved and exhibited the documents as described in „Form A‟ annexed to this judgment.

Mr. Vinaik, learned counsel for the plaintiff, in response to the preliminary objection raised by the defendant has argued that on 14.03.2011, this Court directed the plaintiff to place on record original notice dated 28.08.1999 (Ex. PW1/89) to prove the fulfilment of the requirement laid down under Section 53B of the Delhi Development Act, 1957 (“the Act”) and also directed the Director of DDA to furnish an affidavit stating whether the notice was received or not.

Pursuant thereto, the notice was exhibited as Exhibit PW1/89 with concurrence of both the parties as recorded in the Order dated 11.09.2015.

He further states that pursuant thereto in the affidavit dated 14.03.2011, the receipt of the notice dated 28.08.1999 was admitted by the defendant but an alternate ground was raised qua the cause of action namely, that it arose when the first final bill was raised, i.e., in the year 1997.

It is further stated that Section 53B of the Act is analogous to the provision contained in Section 80 of the CPC, 1908, wherein it is laid down that a prior two-month notice setting out the complete cause of action needs to be served on DDA before filing of the suit and the suit must be filed within 6 months of the said notice.

The plaintiff has acted in strict compliance with the provision of Section 53B of the Act as not only the notice dated 28.08.1999 explicitly disclosed the cause of action and claim, but also the suit was preferred within 6 months of the date of notice (filed on 21.02.2000). Even though the plaint was returned by the registry due to deficiency in the court fees, it was recorded in the objection sheet that the suit was filed on 21.02.2000.

Mr. Vinaik, learned counsel, also states that the cause of action in terms of Section 53B of the Act arose after expiry of two months of the notice having been served and the demand remaining unpaid i.e., the two month period expired by the end of October 1999, thereby giving the plaintiff time till end of April 2000 for filing of the present suit. Reliance is placed on Fresh Assets Ltd. v. DDA^{11.2015 SCC OnLine Del 11245.}.

He also places reliance on the judgment of Mayurdwaj Coop. Group Housing Society Ltd. v. DDA^{22.2010 SCC OnLine Del 4409.}, to state that express mention of provision of Section 53B in the notice is not a sine qua non for filing a suit against DDA, once all the ingredients of the provision stand satisfied, the provision is deemed to be complied with.

He further states that in the present factual matrix, the three years limitation period as per the Limitation Act, 1963, (“Limitation Act”) is applicable to the suit and not the special period of limitation under Section 53B of the Act which has to be strictly construed and should be attracted only in cases where the defendant is under statutory obligation i.e., the act complained of was done pursuant to the statutory requirement or was done by virtue of a contract which was entered into in compliance of the powers conferred by the Act. Reliance is placed on Durga Chand Kaushish v. Union of India^{33.1971 SCC OnLine Del 158.}, and Deluxe Estates v. DDA^{44.2003 SCC OnLine Del 497.}.

The defendant has erroneously pleaded that the date of final bill was the date of commencement of cause of action as the cause of action accrues when the final demand is made and not from the final bill. Even if the stand of defendant is accepted that the final bill was dated March 1999, the suit was still filed within limitation.

Mr. Vinaik, learned counsel, has argued that the suit was initially filed on 21.02.2000, returned under objection and was refiled on 24.02.2000. Due to certain defects, it was ultimately refiled on 03.03.2000 by making the payment of the requisite court fee as computed by the Registry to the tune of Rs. 2,25,555.20/- on ad valorem basis.

At the outset, learned counsel for the plaintiff, states that the facts that after completion of work on 22.02.1997, the EOT was granted and payment on account of escalation under Clause 10 CC of the Agreement was released, and that the additional items assigned to the plaintiff were duly performed remain uncontested. Also, the fact that DDA had to release the final bill within 6 months and the contents of the final bill remain uncontested.

The final bill dated 20.08.1997 was raised within 6 months of completion of the work and the covering letter of the said bill containing an endorsement of receipt by the representative of the defendant is duly placed on record.

The claim made by way of the said final bill remained unrefuted by the defendant, in effect, establishing the said Claim.

Since copy of the bill dated 20.08.1997 got misplaced, another copy dated 23.01.1999 was sent by the plaintiff and owing to certain typographical errors in the same, a new bill dated 10.03.1999 (Exhibited as Ex. PW1/85) was submitted to the defendant.

It is further argued that the averment qua final bill was clearly made in paragraph No. 9 of the plaint which was not answered by the defendant clearly indicating if the final bill was ever paid. The defendant has only raised a defence that the submitted bill was not a final bill. Thus, the same stands admitted and cannot be disputed.

The stand of defendant with regard to the final bill is self-contradictory as for the purpose of calculating limitation, the defendant describes it as final bill but at the same time for the purpose of payment, they treat it as an abstract. However, the factum of final bill stands admitted by the affidavit dated 20.04.2011 filed by the EE of defendant in compliance of the Order of this Court dated 14.03.2011.

Additionally, no question with regards to the date of final bill was posed to the PW1 during his cross examination by the counsel for the defendant.

Mr. M.K. Gupta, Assistant Engineer of the defendant, in his evidence by way of affidavit (Ex. DW1/A), has not denied the fact of hindrances and has ignored the issue of delay in work. He has only briefly stated that some work was left out and had to be awarded to another agency for performance.

DW1 in his affidavit has failed to state any amount that has been paid towards the final bill. It only contains a statement to the effect that nothing is payable, while at the same time admitting that the completion certificate was granted.

Thus, in the light of the aforesaid, the only conclusion possible is that the final bill is pending and outstanding.

Mr. Vinaik has argued that having proved beyond reasonable doubt that the defendant was in breach of its obligations, the encashment of bank guarantee is also illegal. The fact that no Counterclaim is preferred by the defendant establishes the fact that defendant is having no claim against the plaintiff.

The work was completed with a delay of 32 months, solely attributable to the defendant‟s non-performance of its reciprocal promises namely, failure in arranging timely supply of stipulated materials, delaying structural designs, delay in payments for the executed work, and delay in laying the electronic goods by agency of the defendant.

The aforesaid defaults resulted in idling of the centering and shuttering material fixed along with compensation and costing of the RC, etc.

By way of Claim No. 3, the plaintiff is seeking compensation over and above i.e., in addition to the compensation covered by the escalation Clause 10CC or any other such provision for that matter, as the time period for completion of work got extended by 32 months thereby entailing approximate inflation of 20% as per the cost indices issued by CPWD. Reliance is placed on the judgment of this Court in G.D. Tewari v. DDA.^{55.Judgment dated 02.05.1995 in Suit No. 2376/1993.}

It can be seen from a perusal of letter dated 31.03.1993 (Ex. PW1/4) that the plaintiff informed the defendant about breaches of obligations and vide letter dated 20.06.1994 (Ex. PW1/86) it was clearly stated that the work could only be completed beyond time on payment of 20% over and above the quoted rates.

In response to the said letter, the defendant replied vide letter dated 25.06.1994 (Ex. PW1/87 also as Ex. P7) wherein the Claim was not refuted, and it was stated that the demand of the plaintiff would be considered after decision on EOT. Thus, the Claim of the plaintiff is entitled to be decreed.

He further states that deployment of staff for the execution of work as per terms and conditions of the contract was necessary and the deployment of employees calculated at the rate of Rs. 41,500/- per month is 2.2% of the quantum of the work required to be executed in 18 months. Thus, the rate of 2.2% is justified in view of the incidental charges incorporated in analysis of rates forming basis of schedule of rates by CPWD and also supported by the textbook of GT Gajaria. Additionally, for the reasons above, the defendant cannot take defence of Clause 10CC.

It is also stated that as on the stipulated date of completion, work valued at Rs. 1,90,33,415/- remained incomplete on expiry of 18 months due to defendant‟s defaults. This had the effect of depriving the plaintiff of the profit he would have earned on this work within the stipulated period. Thus, the plaintiff has computed this Claim of interest on loss of profit calculated on staggered basis at half of 32 months (i.e., 16 months) worked out at the rate of 18% p.a.

It is submitted by the plaintiff that the defendant has erred in computing the compensation. The defendant prepared bills for increase in material and wage rate prevailing on the date of submission of the tender offer for each quarter and also for the extended period.

The defendant did not include the correct amount as the rise in subsequent quarters in the cost indices was not factored in, causing a shortfall of Rs. 26,68,300/- in the compensation payable to the plaintiff under Clause 10CC of the Agreement itself. Reliance is placed on Anant Raj Agencies v. DDA^{66.2009 SCC OnLine Del 3248.}.

Learned counsel for the plaintiff further submits that extra items of work beyond the scope of the Agreement were executed at the specific instance of the defendant and the same are payable in the following manner as stated hereinbelow:

In respect of item No. 7.4, base plaster of 15 MM was provided as against 12 MM as per the items of work. Hence, this Claim for extra thickness of plaster is to the tune of Rs. 20,980/- as per the applicable Delhi Schedule Rates, 1989 (“DSR”).

He also states that Rs. 2123/- are payable towards Centering and shuttering provided for laying DPC, as an extra item.

It is also stated that Rs. 26,000/- (for 325 c.m. at Rs. 80/per c.m.) is payable for providing Yamuna Sand, which was beyond the scope of the Agreement.

Further, an amount of Rs. 47,020/- (Rs. 28,793/- + 63.3%) is payable towards 100 MM and 75 MM SCI collars at Rs. 47,020/- as per the DSR.

The Claim qua supply of overweight steel stands proved as it was recorded by the defendant‟s Executive Engineer, thereby attracting compensation of Rs. 1,50,000/- for the excess steel charged. Reliance is placed on Steel Weighment Register (exhibited as Ex. PW1/88).

Learned counsel for the plaintiff submits that illegal deduction of Rs. 1,26,876/- was made by the Executive Engineer of the defendant despite there being no deficiencies in the work executed as per specifications and under the supervision of defendant.

The learned counsel for the plaintiff also submits that the defendant has wrongly withheld Rs. 3,29,693/- across ten R.A. bills, despite the work being executed in terms of the Agreement and certificate to this effect being recorded in these bills.

At the outset, Ms. Takiar, learned standing counsel for the defendant, submits that Section 53B(2) of the Act prescribes a mandatory limitation period for suits for recovery or other claims, providing a time limit of 6 months from the date of accrual of cause of action.

The limitation is to be reckoned from accrual of the cause of action, which the plaintiff claims to be on 22.02.1997 when defendant released compensation under Clause 10CC, or, at the latest, 22.08.1997 when the final bill was submitted by the plaintiff or even if it is considered to be accruing from 23.01.1999 or 10.03.1999, the suit filed on 22.02.2000 is still barred by limitation.

It is also stated that as per the settled position, the limitation is to be calculated from the date of cause of action which is tied to the date of submission of final bill by the contractor or failure on part of the defendant to pay the same. No further demand/reminders will revive/renew the limitation period or stop the clock. Reliance in this regard is placed on MCD v. Gurbachan Singh^{77.2014 SCC OnLine Del 19.}, Shah Construction Co. Ltd. v. MCD^{88.1984 SCC OnLine Del 119.}, and Satender Kumar v. MCD^{99.2010 SCC OnLine Del 424.}.

It is further stated that in view of the paragraph No. 6 and 16 of the plaint it is clear that the date of actual completion as per the plaintiff is 22.02.1997 and the final bill was raised on 22.08.1997, which was to be paid within two weeks and in case of non-payment, the suit could have been filed within 6 months from the expiry of 2 months. Hence, the suit filed on 22.02.2000 is beyond the limitation period prescribed under Section 53B of the Act.

Ms. Takiar, learned counsel, states that time was of the essence of the subject Contract as the same provided for delays in its completion to be treated as a fundamental breach and the plaintiff failed to perform its obligations within the agreed timeframe despite repeated notices and opportunities.

In accordance with the Contract between the parties, the defendant was empowered to get the incomplete/deficient work completed/rectified at the risk and cost of the plaintiff, and the same was done after following due process and affording multiple opportunities to the plaintiff.

The cross-examination of the plaintiff reveals glaring inconsistencies of the following nature in his stand:

It is stated by Ms. Takiar, learned counsel, that a copy of bill dated 23.01.1999 was received by the defendant but the same was not in the nature of a final bill or a bill as it was reflecting an abstract amount of a sum of Rs. 29,57,349.70/- and Rs. 6,04,825.75/- on account of actual work.

Further, on 10.03.1999, another abstract was submitted wherein the amount was revised to Rs. 31,99,124/- and Rs. 6,04,825/- and now by way of the present suit the plaintiff is seeking an amount of Rs. 9,87,680/- towards actual work, which is apparently contrary to the initial stand taken by the plaintiff.

Since, it is clear that finalisation of bill is done on rectification of defective work, there were defects in the work executed by the plaintiff, which were assigned to outside agency for the purpose of rectifications and the same was in his knowledge, hence, bill could have been finalised only on completion of the work.

She further states that the plaintiff has failed to submit the clearance certificate issued by the labour officer, which was required for release/refund of the bank guarantee in terms of Clause 46 of the Agreement. Reliance is also placed on Clause Nos. 17B, 19G, 29 of the Agreement.

Qua this Claim, it is stated that as per Clause 12 of the Agreement extra work could be executed and the compensation for the same was duly paid by the defendant in terms of Clause 10CC. Hence, no other amount is payable over and above the amount paid under Clause 10CC, as payment made under this Clause was all inclusive comprehensive payment.

The demand with respect to this amount was raised on 24.10.1996, which was declined by the defendant on 16.11.1996 and the plaintiff also declared in his application for EOT dated 12.05.1997 (Exhibit Ex. P3) that it will not claim any amount extra due to the said delay.

Accordingly, the plaintiff cannot claim any expenses incurred for the extra work which is performed beyond the stipulated completion date unless the same was approved/condoned by the defendant in terms of the contractual provisions. Reliance is placed on Section 55 of the Indian Contract Act, 1872, (“Contract Act”) and also on the judgments of DDA v. U. Kashyap^{1010.1998 SCC OnLine Del 762.}, MCD v. Rakesh Bros.^{1111.(2005) 120 DLT 186.}

She further submits that this Claim is merely a reiteration of Claim No. 3 and as per Section 55 of the Contract Act, the Contractor is not entitled to any compensation for the continued employment of the staff and machinery unless expressly allowed by the defendant. The amount claimed has already been settled in terms of Clause 10CC and nothing remained due.

The present Claim is an attempt to inflate the claims of the plaintiff as the plaintiff also executed other works and his employees were also working at other sites.

Additionally, no extra expenses paid to the staff has been proved to be working at the site and no evidence was led to this effect by the plaintiff.

The burden is on the plaintiff for not only proving the occurrence of prolongation but also the quantum of loss of profit. There is no evidence/document placed on record to indicate the quantum of loss. Assuming even if there is any loss, the Court is also required to see clear evidence to this effect that the loss is attributable to the defendant‟s breach and not the plaintiff‟s own conduct.

Additionally, this Claim of the plaintiff is vague in its nature as there is an ambiguity in the Claim with regards to whether the plaintiff wants to claim loss of profit or interest on such loss of profit.

Clause 10CC is clear in its ambit, exhaustively covering the scope/subject of price escalation and no other form of compensation for delay or other reason is contemplated under the Agreement. It includes the compensation for increase or decrease in the cost of materials and labour during the contract period or during the extension, and excludes the damages for other factors such as idling, loss of profit due to prolongation, etc. Hence, Clause 10CC incorporates the entire remedy available to the plaintiff under the Agreement.

Ms. Takiar with respect to this Claim states that the plaintiff submitted multiple bills but omitted these items, hence, the Claim for these items is just an afterthought.

None of the claims for extra work done is payable to the plaintiff as Clause 10CC applies only on price escalation of material and labour during the contract and approved extension period, and not on the delays attributable to the plaintiff or prolongation claims beyond the approved extension.

She submits that no 15 MM base plaster was provided by the plaintiff instead of 12 MM and the same is not payable in view of Clause Nos. 42(ii) and 3.1.5 of the Agreement.

She also states that this work was executed as per the item of Agreement and CPWD specifications. Hence, nothing more is payable.

It is stated that this Claim for Yamuna sand is not payable because it is outside the scope of the Agreement.

It is also stated with respect to this Claim that the said amount has already been paid under item No. 11.5 to 11.12 of the Agreement and nothing more is payable. Reliance is also placed on Special Condition No. 3.14 of the Agreement.

The Claim with respect to overweight steel is also an afterthought as the plaintiff accepted 30 bills and the plaintiff never raised this issue in any of the bills. Moreover, it is covered under the permissible variations allowed under Clause 42(iii) of the Agreement.

The deductions for the deficiencies which is stated as illegal by the plaintiff were made under the reduction item statement duly approved by the SE, which was final and binding as per the provision contained in Clause 25B of the Agreement.

All the RA bills in which the amount was withheld were already accepted by the plaintiff and the same were not disputed. The amount shown as withheld for RA bills No. 20 and 30 stood already released in favour of the plaintiff. The other amounts had been withheld in accordance with the provisions of the Agreement and on account of quality control observations and excess consumption of cement by the plaintiff during the execution of the work. Hence, nothing is payable by the defendant to the plaintiff with respect to this Claim.

I have heard learned counsels for the parties and perused the documents, evidence and material placed on record.

The preliminary issue raised by the defendant in the present case concerns the special limitation period prescribed under Section 53B of the Act for instituting suits against the defendant. At this stage it is pertinent to refer to Section 53B of the Act, which reads as under:

From a conspectus of the aforesaid, it can be seen that Section 53B(1) of the Act bars institution of a suit against the defendant until the expiry of two months after service of notice in writing stating explicitly the cause of action, the relief sought, and the amount of compensation claimed. Section 53B(2) further provides that no such suit shall, save in specified exceptions (not relevant here), be instituted after the expiry of six months from the date on which the cause of action arose.

It is the preliminary objection raised by the defendant against the maintainability of the suit that the limitation period for the filing of the present suit reckoned from the date of release of compensation under Clause 10CC (i.e., 22.02.1997) and resultantly the suit filed on 22.02.2000 is filed beyond the period of limitation prescribed under Section 53B of the Act.

Defendant further, without prejudice to the aforesaid argument, states that even if the date of submitting of final bill dated 20.08.1997 or its corrected copies submitted on 23.01.1999 or 10.03.1999, is considered as the date of accrual for cause of action, the suit is still barred by limitation, as the maximum period of limitation in the present case would be 8 months (2 months for notice + 6 months for filing of suit). Even from the last date i.e., 10.03.1999, the suit filed on 22.02.2000 is beyond the limitation of 8 months.

Per contra, the plaintiff has argued that the final bill was submitted on 20.08.1997, which was resubmitted on 10.03.1999 and later a demand notice dated 28.08.1999 was addressed by the plaintiff to the defendant. Thus, the two-month period for notice must be calculated from 28.08.1999 which expires on or about 27.10.1999 and, hence, on this basis the suit filed on 21.02.2000 falls well within the period of limitation permitted, which would only expire on 27.04.2000.

The plaintiff has also argued that the special limitation period as prescribed under Section 53B of the Act must be strictly construed and should only be attracted in cases where the dispute is regarding the statutory obligation of the DDA under the Act itself or rule or regulation made thereunder.

The law with respect to operation of special period of limitation provided under Section 53B of the Act is no longer res integra and has been time and again expounded by this Court. The same has been recently explained by a Coordinate Bench of this Court in the judgment of DDA v. Dr Fresh Assets Ltd.^{1212.2026 SCC OnLine Del 2376.}, and the relevant paragraphs of the judgment read as under:

The aforesaid judgment of Dr. Fresh Assets (Supra) is also on the same lines of reasoning as the judgment of Lucky Star Estates (Supra) by the Hon‟ble Division Bench of this Court.

In this view of the matter, the issue of fact which is to be decided is that whether the actions of the defendant can be said to be actions to have been done under the Act or any rules or regulations framed thereunder.

The present suit filed for recovery of Rs. 2,28,68,176/- along with interest is premised on non-payment of final bill, illegal withholding of multiple amounts including towards work done beyond the completion date, loss of profitability due to prolongation, and compensation payable under 10CC on the ground of delay and other additional grounds.

The plaintiff alleges non-performance of contractual obligations arising from the Agreement dated 23.12.1992 by the DDA to the aforestated amounts, the withholding/non-payment of the same cannot be said to be falling within the scope and ambit of an action done under the Act or any rules or regulations framed therein. It is entirely a matter of contractual disputes between the parties and does not fall within the statutory framework of the Act. Hence, section 53B of the Act will have no application.

The judgment of MS Shoes East Ltd. v. DDA.^{1313.2018 SCC OnLine Del 9074.} relied upon by defendant is distinguishable and operative paragraphs of the same read as under:

The aforesaid judgment of MS Shoes East Ltd. (Supra) is distinguishable on facts from the present case as in that case not only the copy of bid and tender issued by DDA inviting tenders had ―Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981‖ mentioned in the list of documents but also the allotment letter was under the ―Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981‖. The same is not the case in the present suit and my attention has not been drawn to any such fact or evidence.

In this view of the matter, the special limitation period prescribed under Section 53B of the Act does not apply to the present suit and the suit will be governed by the provisions of the Limitation Act, thereby the limitation period of 3 years shall apply for institution of the present suit.

Accordingly, the present suit filed on 21.02.2000 is within the limitation period of 3 years.

After its refiling on 03.03.2000, the plaint filed bears an ad valorem court fee of Rs. 2,25,555.20/- as computed and accepted by the Registry. The defendant has neither placed any material before this Court nor made any submission at the hearing stage to show that this computation is erroneous or that any further court fee remains outstanding. Thus, it is evident that the court fee affixed to the plaint by the plaintiff is sufficient and the plaint does not suffer from any defect.

Accordingly, the issue No. 2 is decided in favour of the plaintiff.

The onus of proof for this Claim is on the plaintiff.

The Claim of the plaintiff with respect to the payment of final bill to the tune of Rs. 41,77,809/- is premised on manifold arguments, which can be crystallised in the following manner:

Per contra, the defendant in paragraph No. 9 of its Written Statement has denied the factum of submission of bill by the plaintiff to the EE of the defendant and stated that since, there were rectifications of defects required in the incomplete work executed by the plaintiff, the same were executed by another agency at the risk and cost of the plaintiff.

It is also argued in the defence qua this Claim that the defendant only received an abstract (dated 23.01.1999) of the amount claimed by the plaintiff and that was not in the nature of a bill. Another revised abstract dated 10.03.1999 (Ex. PW1/85) claiming Rs. 31,99,124.01/-and Rs. 6,04,825.75/- (for actual work done) was also submitted. However, now by way of his plaint, the plaintiff is seeking Rs. 31,90,124/- (amount payable for undisputed work) and Rs. 9,87,680/-(for actual work done) as against Rs. 6,04,825.75/- stated in the bill dated 10.03.1999 for actual work done, reflecting a contradictory approach.

Additionally, it is the defence of the defendant that bill could only have been finalised upon completion of work by the other agency to which the rectification work to the tune of Rs. 7,14,003/- was awarded.

Mr. Jai Singh (PW1), plaintiff and proprietor of the plaintiff in paragraph Nos. 9, 10 and 11(1) of his evidence by way of an affidavit has deposed that on completion of work by the plaintiff, the defendant was requested for payment of final bill but to no avail. Consequently, a final bill was submitted on 22.08.1997, which was misplaced by the Executive Engineer of DDA resulting in submission of another copy of bill dated 23.01.1999, which was again resubmitted on 10.03.1999 (Ex. PW1/85) on account of some typographical errors. Despite the final bill already being submitted, the same has not been settled. The relevant portions of his affidavit reads as under:

During the cross-examination of Mr. Jai Singh (PW1), after perusal of the record he stated that he did not submit the final bill dated 22.08.1997 and also stated that he had filed only one covering letter dated 20.08.1997 and the same is not attached with a final bill, i.e., no final bill is annexed along with the covering letter. While denying the suggestion that he had given only one final bill dated 10.03.1999 (Ex. PW1/85), he stated that it is correct that he has not placed on record any final bill issued prior to 10.03.1999. The relevant portions of the cross-examination recorded on 11.09.2015 read as under:

In view of the admission made by PW1 in his cross-examination, it is clear that there is no evidence placed on record to show submission of final bill on part of the plaintiff prior to 10.03.1999, hence, the controversy at hand and the present Claim needs to be adjudicated on the basis of the only available bill dated 10.03.1999.

Even the defendant in paragraph Nos. 9, 10 and 10(1) of its written statement has admitted that it has duly received the abstracts (final bill and corrected final bill as per plaintiff) dated 23.01.1999 and 10.03.1999 respectively. The relevant portions of the written statement reads as under:

Mr. M.K. Gupta (DW1), in his affidavit by way of evidence only reiterated the contents of the written statement and no questions in his cross-examination were put to him with respect to this Claim. The record of cross-examination of DW1 reads as under:

In view of the aforesaid admissions with regards to the factum of receipt of bill/abstract, the issues which arise for consideration is the nature of the document and the amount due and payable, if any.

The said argument creating distinction between the final bill and an abstract is merely a baseless assertion not supported by any cogent evidence or any argument as to how the nature of that enclosed bill is that of an abstract. Additionally, there is no particular format either of an abstract bill or that of a final bill, which is brought to my notice in support of this argument.

From a perusal of the enclosing letter dated 10.03.1999, it is clear that the bill enclosed therewith running around 20 pages has been categorically referred to as “Final bill” by the plaintiff and from a perusal of the same it can be seen that it is an elaborate and detailed bill. The same is having particulars of every sub-head and expenses that cannot in any way be said to be only an abstract especially in absence of any argument as to how it is an abstract and not a final bill. The bill enclosed with letter dated 10.03.1999 (Ex. PW1/85) reads as under:

It was only when the defendant ignored the requests for payment made by the plaintiff, the plaintiff was compelled to raise this final bill and the defendant despite admitting that it has received the bill dated 10.03.1999 (Ex. PW1/85) has failed to demonstrate any steps that it had taken pursuant to the said bill. Thus, the defendant cannot be allowed to evade its liability by referring these bills as abstracts rather than final bills.

In this view of the matter, the aforesaid argument of the defendant is rejected and does not deserve any further consideration.

It is also stated in the evidence by way of an affidavit of Mr. M.K. Gupta on behalf of defendant exhibited as Ex. DW1/A that the sum as claimed in the suit is not payable. He has not specifically made any statement in the affidavit with respect to the present Claim and has in a general manner denied liability to pay any amount. This stand of the witness for defendant is merely a bald denial of its liability without establishing any cogent grounds or explaining any specific reasons for the same. The relevant paragraphs of the affidavit read as under:

The mere denial of liability on part of the defendant to pay the demand raised by the plaintiff only on the ground that the rectification work had to be awarded to some other agency for completion at risk and cost of the plaintiff, cannot absolve the defendant from its liability to pay the same. The defence witness DW1 has in his affidavit failed to even name the alternate agency through which the rectification work was undertaken.

The defence witness DW1 on the other hand has admitted the issuance of completion certificate after grant of EOT.

At this juncture, it is important to refer to the completion certificate dated 22.02.1997 (Exhibit as Ex. P2), which reads as under (True typed copy):

The Completion Certificate as reproduced hereinabove itself records physical completion of the work on 22.02.1997 and that no defects were found. The items listed as outstanding include whitewash and painting, cleaning of manholes and drains, fixing of fittings and fasteners, repair of plaster and flooring, and similar items.

Once there is a completion certificate in favour of the plaintiff and the defendant has failed to establish precise grounds for non-payment of the final bill raised by the plaintiff, the defendant cannot be allowed to deny the plaintiff‟s legitimate dues indefinitely by merely stating that another agency had to undertake the rectification work not done by the plaintiff.

The defendant has categorically in the paragraph No. 10(1) of its written statement (reproduced above in paragraph No. 112 of the judgment) has stated that the bill is to be finalized after completion of rectification work by the outside agency and the same could not be worked out. However, except for the award of work and for the statement that the defendant has to outsource the rectification work, no evidence has been led by the defendant to show:

The settlement of the bill could have awaited the finalization of the rectification work but the same cannot be left in the lurch indefinitely on this ground. The defendant ought to have produced cogent evidence in support of its contentions to oppose the payment of final bills, which it has failed to do so.

An award of work, in itself, is insufficient to prove, if any actual expense has been incurred by the defendant in getting the rectification work done. Thus, in the absence of complete records, bills, and proof of payment qua the rectification work by the outside agency, this argument cannot be allowed to defeat the genuine claim of the plaintiff.

In this view of the matter, the unsubstantiated argument of the defendant that nothing was payable cannot be countenanced.

The defendant has also pointed out inconsistencies in the Claim of the plaintiff raised by way of final bill dated 10.03.1999 and the present suit i.e., the plaintiff is seeking Rs. 31,90,124/- (amount payable for undisputed work) and Rs. 9,87,680/- (for actual work done) as against Rs. 6,04,825.75/- stated in the bill dated 10.03.1999 (Ex. PW1/85) for actual work done.

The plaintiff in the suit (as per the final bill) besides claiming 31, 90,124/- (amount payable for undisputed work) and Rs. 6,04,825.75/-(for actual work done but not paid) has claimed an additional sum of Rs. 3,82,854/- being 63.3% of Rs. 6,04,825.75/- (the actual work done but not paid) towards contractor‟s percentage, hence, there is no inconsistency in the final bill and the amount sought to be recovered by way of the present suit. The same can be clearly inferred from a perusal of the bill reproduced in the paragraph No. 116 of the present judgment.

From a perusal of the aforesaid, it is clear that the total amount due as per the final bill is Rs. 41,77,809/-. Thus, the argument of the defendant that there is an apparent contradiction between the final bill and the amount claimed by way of this suit deserves to be rejected.

The defendant has also fleetingly raised an argument that the payment under Clause 10CC has been released till completion date and the same has been accepted by the plaintiff.

From a bare perusal of Clause 10CC it is clear that the same provides for price escalation and moreover, the aforesaid stand of the defendant is contrary to the stand taken by the defendant in paragraph No. 10(1) of its written statement wherein it is categorically stated that the bill is to be finalised on completion of work by the outside agency and till that time the exact figures cannot be worked upon. The relevant portion of the paragraph is already reproduced in the paragraph No. 112 of this judgment.

Thus, the defendant cannot be allowed to make contrary submissions that the bill is to be finalized on completion of rectification works and at the same time also stating that the bill was already paid under 10 CC compensation which was released in 1997. Accordingly, this argument of the defendant also fails to shake the case of the plaintiff.

The standard of proof by which the present Claim needs to be adjudicated is that of preponderance of probability, which for all of the reasons as stated above leans in favour of the plaintiff and accordingly, the Claim No. 1 is decided in favour of the plaintiff.

Accordingly, the plaintiff is entitled to a decree of Rs. 41,77,809/-along with interest.

Claim No. 2: Release of bank guarantee of Rs. 3 lakhs, and incidental expenses of Rs. 40,000/. (the onus to prove this claim is on the plaintiff.)

At the outset, it is noteworthy that this Court in its Order Sheet for I.A. No. 2084/2001 dated 03.08.2001 categorically recorded the fact that the bank guarantee as well as its invocation period has already expired and the only question which was kept open for adjudication was the entitlement of the defendant to insist upon keeping the said bank guarantee alive under Clause 30 of the Agreement. The Order Sheet dated 03.08.2001 reads as under (True typed copy):

Subsequently, the plaintiff filed an I.A. bearing No. 11438/2001 seeking deletion of the observation recorded by the Court in the aforesaid Order on the ground that the bank guarantee has already expired and the question which is left open is just academic in nature, and is causing great prejudice to the plaintiff because the bank is refusing to return the margin money and is continuing to deduct charges towards this bank guarantee.

Pursuant thereto, vide Order dated 11.12.2001 passed in another I.A. 11438/2001, the aforesaid question was deleted by this Court observing that it had become redundant. The Order Sheet dated 11.12.2001 reads as under (True typed copy):

The Plaintiff in his written arguments dated 06.08.2025 placed on record, has made the following argument with respect to this Claim:

The abovesaid argument of the plaintiff seems to be contrary to the observations recorded in the Orders dated 03.08.2001 and 11.12.2001, wherein it has clearly been recorded that the bank guarantee has expired, time for extending the same has expired and the bank guarantee need not be kept alive.

No other Order has been brought to my notice, wherein it has been indicated that the bank guarantee was encashed.

Additionally, the onus of proof for this issue lies on the plaintiff and he has failed to lead any evidence to show that the bank guarantee bearing No. 39/94-95 issued by the State Bank of Indore, Green Park Extension, New Delhi, was encashed by the defendant.

Even though in the written arguments as reproduced hereinabove the plaintiff has stated that the bank guarantee has been encashed, no cogent evidence has been produced before me to prove the same. Additionally, no material has been filed to show the expenses incurred in keeping the bank guarantee alive.

In the absence of the plaintiff having led cogent evidence and having failed to discharge his onus of proof, the relief as claimed by him cannot be granted.

By way of this Claim, the plaintiff is essentially seeking compensation for the work executed beyond the stipulated date of completion, calculated at 20% over the tendered rates to account for inflation and idling costs arising out of the 32 months delay caused by the failure of defendant to fulfil its obligations. The same resulted in idling of the centering and shuttering material and costing of RC, etc. Plaintiff has placed reliance on letter dated 31.03.1993 (Exhibited as Ex. PW1/4) to point out breaches on part of the defendant.

It is stated that the plaintiff mobilised all his resources for timely completion of the project but the defendant failed to arrange supply of stipulated materials, drawings on time and to ensure timely payments for work done. Also, the Claim of the plaintiff is not covered by any escalation clause including Clause 10CC and is in addition to the same.

Per Contra, the defendant has argued that payment made under Clause 10CC is a comprehensive payment and nothing more is payable. It is also argued that this Claim was raised by the plaintiff on 21.10.1996, which was rejected on 16.11.1996 by the defendant reiterating Clause 10CC.

It is also important that the plaintiff applied for EOT stating that he would not claim anything extra amount due to the delay which was sought to be extended. Thus, in view of this undertaking by the plaintiff and clause 10CC compensation, this Claim deserves to be rejected.

Plaintiff has placed reliance on letter dated 20.06.1994 (Exhibited as Ex.PW1/86) to state that the plaintiff informed the defendant in advance that the delays are attributable to the defendant and the work could only be completed beyond time on payment of 20% over and above the quoted rates. The letter dated 20.06.1994 (Ex.PW1/86) reads as under (True typed copy):

In response to the aforesaid request raised by Ex.PW1/86, the same was not declined by the defendant but was posted for consideration after completion of formalities of EOT. Letter dated 25.06.1994 exhibited as Ex. PW1/87 (also marked as Ex. P7) is reproduced hereunder (True typed copy):

PW1 in his evidence by way of an affidavit reiterated the aforesaid contentions of the plaintiff and also stated that the defendant in issuing the aforesaid reply (Ex. PW1/87) has admitted his claim.

Defendant in its written statement has stated that the plaintiff in his application form seeking EOT in the prescribed proforma part-I has declared that he will not claim any extra amount due to the aforementioned delay. The defendant has relied on application for EOT Part-I dated 12.05.1997, which is exhibited as Ex. P3 and the same reads as under (True Typed Copy):

When PW1 was put to cross examination with respect to the undertaking recorded in the application dated 12.05.1997 (Ex. P3) seeking EOT, he admitted that the undertaking was duly written and signed by him but at the same time, he also stated that it was a one-sided agreement and EOT would not have been granted if he would have not made that undertaking. The relevant excerpts from the cross-examination of PW1 recorded on 19.01.2015 read as under:

In the present case, as per the concluded contract between the parties clause 10CC contemplated payment on account of escalation. Clause 10CC of the Agreement is reproduced as under:

The plaintiff vide letter dated 20.06.1994 exhibited as Ex. PW1/86 , sought to alter the terms of the contract by offering to do the work after the stipulated date of completion by charging 20% over and above the initially quoted rate of 63.30%. The same was not accepted by the defendant.

The defendant vide letter dated 25.06.1994 (Ex. PW1/87 also marked as Ex. P7) informed the plaintiff that the matter concerning EOT is pending consideration and the defendant is not in a position to allow anything beyond the already fixed 63.30%.

Thereafter, the plaintiff made an application seeking EOT dated 12.05.1997 (Ex. P3). The said offer (EOT application) contained a specific undertaking ―I will not claim any extra amount due to above mentioned delay‖. It was this offer which was accepted by the defendant and the defendant accordingly granted EOT, leading to a concluded contract between the plaintiff and the defendant.

The stand of the plaintiff seeking to claim sums after specifically agreeing not to claim, would result in breach of this contractual term. It is only on this basis that the EOT was granted to the plaintiff. As regards the argument that EOT was obtained under duress or coercion, there is no document from 12.05.1997 to show any protest/objection raised by the plaintiff in this regard.

Hence in view of the undertaking recorded in the EOT Application (Ex.P3) and the fact that no evidence has been led with respect to the argument of duress to satisfactorily impeach the said undertaking, this Claim of the plaintiff stands rejected.

In this Claim, the plaintiff is seeking compensation for deployment of employees and machinery at the rate of Rs. 41,500/- per month which is 2.2% of the quantum of work required to be executed every month in order to complete the amount of Rs. 3,30,27,654/- for 18 months.

On the other hand, defendant has argued that the present Claim is a mere reiteration of the Claim No. 3 and in absence of any contractual stipulation to allow compensation for continued employment of staff and machinery, the same cannot be allowed. Additionally, the plaintiff has not led any evidence in support of this Claim of extra expense.

PW1 in his affidavit by way of evidence has provided a detailed calculation of the said Claim wherein amount spent in maintenance of employees, staff and material are set out. The relevant paragraphs of the affidavit of PW1 read as under:

The defendant witness (DW1) in his affidavit by way of evidence has stated that whatever amount was due, it was paid to the plaintiff under Clause 10CC and the same also included the overheads for Staff and Machinery. Thus, the plaintiff cannot raise any further claims. The relevant paragraphs of the affidavit of DW1 read as under:

When PW1 was subjected to cross-examination on 13.01.2016, he clearly admitted that he has not filed any document before the Court to show any actual expense incurred/detailed description of the particulars which are demanded by way of this Claim. The relevant paragraph of the cross-examination reads as under:

The onus of proving this issue lay on the plaintiff, however, except for making a bald averment and a calculation of his own, the plaintiff has failed to produce any cogent evidence to show the number of staff employed or the machinery deployed at the site by the plaintiff.

In absence of any such evidence of this nature, this statement of the plaintiff qua compensation for continued employment of staff, machinery without any proof qua the actual expenses incurred in maintaining the employees, staff and machinery cannot be accepted.

The law in this regard is well settled that in the absence of any evidentiary proof and merely on the basis of unsupported calculations, such claims cannot be granted in favour of the Plaintiff.

A Coordinate Bench of this Court in the judgment of Union of India v. Om Construction Co.^{1414.2019 SCC OnLine Del 9037.}, has held:

A coordinate bench of this Court in its recent judgment of ECO Green Buildtech (P) Ltd. v. Vikartan Infrastructure (P) Ltd.^{1515.2026 SCC OnLine Del 7062.}, also held as under:

Even though the aforesaid judgments were rendered in cases of challenge against arbitral awards, a combined reading of the aforesaid judgments along with Kailash Nath Associates v. DDA^{1616.(2015) 4 SCC 136.}, and Fateh Chand v. Balkishan Dass^{1717.1963 SCC OnLine SC 49.}, clearly highlights that the plaintiff is required to place cogent evidence on record to show continued employment of staff, deployment of machinery and the amounts spent thereupon and in absence of the same, vague and unsupported calculations cannot be accepted to award this Claim in plaintiff‟s favour.

Additionally, the plaintiff himself in his application for EOT-Part-I (Exhibited as Ex. P3) dated 12.05.1997 made an undertaking that he will not claim anything extra due to the said delay. Hence, this Claim of the plaintiff is not only an unsubstantiated claim but also contrary to his own undertaking recorded in the said document.

In this view of the matter, this Claim of plaintiff is wholly untenable and devoid of merit, accordingly, the same is rejected.

The plaintiff in this Claim is seeking of Rs. 4,56,802/- as interest calculated on loss of profit due to the prolongation of the Contract caused by the delay in its completion owing to breach of its obligations by the defendant.

As per the plaintiff, all the defaults and breaches resulting in delayed performance of contract for 32 months were attributable to the defendant only.

On this premise, the plaintiff has calculated the cost of work done after the stipulated (initially decided) date of completion as Rs. 1,90,33,415/-and has calculated the loss of profit at rate of 10% of the said amount i.e., Rs. 19,03,341 for loss of profit.

The plaintiff by way of this Claim seeks interest on Rs. 19,03,341/-(alleged loss of profit) at the rate of 18% p.a. The plaintiff has calculated the interest on a staggered basis by reducing the period of 32 months to 16 months and has accordingly Claimed amount of Rs. 4,56,802/- as interest.

Per Contra, the defendant in its written statement has stated that no loss of profit was suffered by the plaintiff and the plaintiff should be put to strict proof of the same. The said loss as claimed by the plaintiff should have been shown in the ITR of the plaintiff and in absence of the same, this Claim of the plaintiff remains unsubstantiated.

The defendant has also contended that this Claim of the plaintiff is vague in its nature as the plaintiff seems to be confused regarding what he wishes to claim because the heading of the Claim in the plaint is different from what he actually appears to be claiming from the description of the Claim. The plaintiff appears to be Claiming interest on loss of profit but has not indicated the basis on which the said amount of Rs. 4,56,802/- towards interest is calculated. In any case even if a loss is alleged, the same must be directly attributable to the conduct of the defendant to hold it accountable.

At the outset, I find merit in the contention of the defendant that the Claim along with its calculation is very poorly described in the plaint making it difficult to discern for the purpose of adjudication. The plaintiff has phrased the heading of the Claim in such a manner to indicate that the plaintiff is Claiming loss of profit itself. Even the calculation of the interest remains unexplained in the Plaint and affidavit by way of evidence furnished by the plaintiff (PW1).

It was only in the written arguments dated 06.08.2025 filed by the plaintiff that the plaintiff clarified its stand qua this Claim and stated that the plaintiff is seeking recovery of interest on loss of profit at the rate of 18% calculated for a period of 16 months on staggered basis.

In view of the aforesaid, for the purpose of Claiming interest on loss of profit, the plaintiff is required to prove the loss of profit by cogent evidence and then the basis of calculation of interest adopted by him.

Mr. Jai Singh (PW1) in his evidence by way of an affidavit only reiterated the submissions already set out in the plaint and was put to cross-examination on 13.01.2016, wherein he admitted that he has not filed any separate details in his ITR qua the loss of profit suffered by the plaintiff. The relevant paragraph of the record of cross-examination reads as under:

The Hon‟ble Supreme Court in the judgment of Unibros v. All India Radio^{1818.2023 SCC OnLine SC 1366.}, laid down four conditions only upon satisfaction of which loss of profit can be decreed in favour of the plaintiff. The relevant paragraphs of the judgment read as under:

In view of Unibros (Supra) and a catena of judicial authorities including those discussed for adjudication of the Claim No. 4, it is settled law that for Claiming loss of profit, the Claimant/plaintiff is required to prove both breach of Contract and actual resultant loss by leading cogent and credible evidence, to substantiate his aforesaid Claim. However, the demand raised by the plaintiff by way of this Claim is merely in the form of assertion without any cogent evidence to prove the same.

It is settled law that estimation formulas also cannot be applied by Court of Law/ Arbitrator in vacuum to award Claims of this nature when they are not substantiated by any evidence for proving actual loss of profit.

In the present case, the plaintiff in his cross-examination has accepted that he has not reflected any separate details in his ITR records with respect to the loss of profit over which interest is Claimed and he has also not led any documentary evidence, let alone any credible evidence to prove the actual loss and to support his Claim for interest on loss of profits.

In view of the conditions laid down in the judgment of Unibros (Supra) especially the fourth condition i.e., the presence of credible evidence to substantiate the Claim of loss of profit, the same is not fulfilled by the plaintiff in the present case. He has failed to lead any evidence at all in order to prove loss of profit, thus, making his Claim sans evidence.

Additionally, the plaintiff has not led any evidence at all to show:

Thus, in absence of any evidence to show loss of profit or prove calculation of interest on it, the Claim of the plaintiff seeking interest on such loss of profit is rejected.

By way of this Claim, the plaintiff is not contending that no payment was made to him under Clause 10CC rather the plaintiff is disputing the methodology of calculation made by the defendant.

The plaintiff contends that the defendant has prepared and paid escalation in terms of Clause 10CC but with certain fallacies:

Additionally, the escalation should be payable not only on the final bill amount but also on claims relating to work done but not paid. The plaintiff on this premise has worked out an additional sum of Rs. 26,68,300/- as payable to him under Clause 10CC.

Defendant on the other hand has reiterated its stand that the entire amount due and payable under Clause 10CC was paid to the plaintiff and there is nothing more payable on its part. The plaintiff has also not supported his Claim by proper calculation or basis on which its Claim is based.

In any case, Clause 10CC is a price variation clause for compensating any increase or decrease in the cost of material and labour, and does not cover the compensation for delay or overheads, loss of opportunity, etc.

Mr. Jai Singh (PW1) in his affidavit by way of evidence has reiterated the averments already made in the plaint and the relevant portions of the affidavit read as under:

Mr. M.K. Gupta (DW1) maintained his consistent stand that the entire amount payable under Clause 10CC is already paid to the plaintiff and the same was duly accepted by the plaintiff. Hence, nothing more is payable to the plaintiff. Relevant paragraphs of the affidavit read as under:

When PW1 was put to cross examination on 11.09.2015, it was admitted by him that he has received certain payments under Clause 10CC for the bills that he raised. The relevant portion of the cross-examination reads as under:

Further, PW1 on 14.09.2015 was again put to cross-examination wherein he stated that the defendant did not pay the entire amount under Clause 10CC for the period which was extended in order to complete the Contract. The relevant portions of the cross-examination recorded on 14.09.2015 read as under:

From a conspectus of the averments made in the plaint along with the evidence placed on record and arguments made before this Court in support of this Claim, it is clear that the plaintiff has denied the sufficiency/ disputed the calculation of compensation paid under Clause 10CC but at the same time has not furnished any basis or calculations or breakdown of the amount claimed (i.e., Rs. 26,68,300/-) to show that the same is due and payable to the plaintiff in addition to the amount already paid under Clause 10CC by the defendant.

The onus of proof for this Claim lay on the plaintiff.

The defendant has produced specific RA Bills evidencing payments made under Clause 10CC, which are exhibited as Ex DW1/3, DW1/4, DW1/5 and DW1/6 respectively. On the other hand, the plaintiff except for making bald averment and disputing the stand of the defendant has not led any evidence much less cogent evidence to show:

In this view of the matter, this Claim of the plaintiff is bereft of any proof, evidence and particulars, so as to entitle the plaintiff to this Claim.

In this Claim, the plaintiff is seeking to recover the cost of items of work which were executed as per the directions of the defendant but are beyond the scope of the Agreement and remain unpaid.

These Claims qua different items were argued by the defendant to be raised as an afterthought because bills were frequently submitted for a period of 18 months yet the plaintiff omitted to include these items.

The onus of proof with respect to each sub-claim is on the plaintiff.

As per the plaintiff, this part of the Claim No. 7 is qua the thickness of plaster in respect of item No. 7.4 wherein the base plaster was 15 MM instead of 12 MM, which was contemplated in the items of work. The same was done as per directions of the defendant. Hence, plaintiff seeks recovery of Rs. 20,980/- for 4196.36 sq. mtrs.

The defendant on the other hand has denied the fact that 15 MM plaster was provided and as per Clause 42(ii) of the Agreement no extra payment is payable. Also, the plaintiff was required to maintain a cement register in terms of Clause 3.1.5 of the Agreement. Clause 3.1.5 reads as under:

PW1 in his affidavit by way of evidence has reiterated the averment made in the plaint verbatim.

My attention has been drawn to Clause 3.1.5 by the defendant from a perusal of which it seems that the plaintiff was required to maintain registers for cement, paint, etc. which could have been produced by the plaintiff for the purpose of proving this Claim but the same has not been done. Plaintiff has not placed reliance on any documentary evidence in support of his Claim for proof of actual cost of extra thickness of the plaster.

The onus of proof with respect to this Claim lay on the plaintiff. Once, the defendant has denied that 15 MM plaster was provided, the plaintiff had to lead cogent evidence:

The plaintiff has not led any evidence to show either of the two things. In the absence of any evidence, this sub-claim stands rejected.

The plaintiff is claiming an amount of Rs. 2123/- towards the centering and shuttering provided for laying of DPC, which is beyond the scope of Agreement, hence, claimed as an extra item.

The defendant with respect to this Claim has contended that the work was carried out as per the item of Agreement and CPWD specifications wherein rates included the cost of materials and labour involved in all operations. Thus, nothing extra is payable for centering and shuttering.

PW1 in his affidavit by way of evidence only stated that he had to provide centering and shuttering for laying of DPC which was beyond the scope of Agreement and no questions were put to PW1 with respect to this Claim.

I am of the view that the plaintiff has fleetingly raised this Claim without explaining the particulars and without leading any evidence to show as to how the work of centering and shuttering on which this Claim is based, falls outside the scope of Agreement. The plaintiff has also failed to provide cogent evidence for calculation and expense of Rs. 2123/- as claimed in the present claim.

Since, the onus to prove this Claim was on the plaintiff and the plaintiff has failed to discharge the said onus, the present Claim cannot be allowed.

The plaintiff claims Rs. 26,000/- (for 325 c.m. at Rs. 80/per c.m.) towards the Yamuna Sand provided for the work, which was not contemplated under the Agreement and was required for being filled in the plinth, etc.

The defendant in its written statement has denied the said Claim on the ground of falling outside the terms of the Agreement and CPWD specifications.

PW1 in his affidavit by way of evidence only reiterated the contents of the plaint to state that the description of item takes precedence over the specific provision which does not provide for supply of Yamuna Sand. Since plaintiff has provided the said item, he is entitled to award of this Claim. The relevant paragraph reads as under:

No questions with respect to this Claim were put to PW1 during the cross-examination.

The defendant in its written statement with respect to this sub-claim for use of Yamuna sand has stated as under:

This Claim with respect to use of Yamuna Sand is only fleetingly raised and is an unsubstantiated claim as the plaintiff has not led any evidence to prove that Yamuna Sand was actually supplied and used. Once the defendant has denied the claim, it was upon the plaintiff to prove the same by leading cogent evidence, except for an averment in the plaint and affidavit, there is nothing to support his claim. Hence, the said Claim is rejected.

The plaintiff also claims Rs. 47,020/- (Rs. 28,793/- + 63.3%) towards the SCI Collars of 100 MM and 75 MM provided for proper functioning of drainage system and the same is stated to be payable under Clause 12 of the Agreement.

Defendant in its written statement has denied this Claim and stated that:

PW1 in his affidavit by way of evidence reiterated the averments of the plaint and provided the calculation of the claimed amount. No questions were put to PW1 in his cross examination with respect to this Claim.

The plaintiff has placed reliance on Clause 12 of the Agreement which provides for “alteration in specification and designs”, without explaining how the Claim falls/is payable under the relevant Clause of the Agreement.

The plaintiff qua this sub-claim was required to lead evidence as to the costing of the SCI collars, in the absence of any evidence with respect to the same, this Claim cannot be allowed.

This Claim is premised on the basis that the steel of 6 mm to 12 mm size was supplied by the defendant and the same was payable on the basis of its actual weight. As per the plaintiff, the same was overweight and the payment for excess weight of steel so supplied is due and payable to the plaintiff.

On the other hand, the defendant has contended that the plaintiff has duly accepted bills from 1^st bill to 30^th bill without raising any protest regarding the issue of overweight steel, thereby implying that he had no grievance and the present Claim is only an afterthought.

Also, the defendant has contended that there is no record available at the site which could prove the fact of steel being overweight. Moreover, the payment of steel is covered within the permissible variations in terms of Clause 42-III of the Agreement.

PW1 in his affidavit by way of evidence reaffirmed the averments of the plaint and relied upon Steel Weighment Register (purportedly signed by officials of DDA) exhibited as Ex. PW1/88 (also marked as exhibit Ex. P10) to substantiate his submissions.

DW1 also in his affidavit by way of evidence reiterated the contents of written statement and maintained his consistent stand that all payments have been made as per the Agreement and the same has not been objected, hence, nothing more is payable. No questions were to him with respect to this Claim in cross-examination.

Plaintiff in this Claim has not explained or worked out the calculation of Rs. 1,50,000/- claimed towards the overweight steel supplied to it. He has arrived at the said amount without substantiating it with any supporting evidence, calculation sheet or explanation as to how the alleged excess weight translates into the claimed amount of Rs. 1,50,000/-.

Even if I were to agree with the contention of plaintiff regarding supply of overweight steel, the amount claimed to the tune of Rs. 1,50,000/- by the plaintiff cannot be accepted in absence of any evidence/explanation showing its computation.

Additionally, the computation of the amount claimed cannot be comprehended from a perusal of Steel weighment register (Ex. PW1/88, Ex. P10).

In my view, a mere assertion that certain overweight quantities were supplied, without properly quantifying the Claim either in the plaint or in affidavit by evidence, and without providing a calculation for the same supported by credible evidence, is insufficient to entitle the plaintiff to the claimed amount.

The plaintiff was required to establish with clarity:

Additionally, I find merit in the contention of the defendant that the plaintiff ought to have been objected/protested with respect to this issue of overweight steel to the duly paid bills which was not so done, thus, this argument of the plaintiff is nothing but an afterthought.

In absence of any precise quantification of this Claim, it also cannot be decided whether the variation was covered in terms of Clause 42 of the Agreement i.e., 3% or 2% plus/minus variation allowed in terms of the Agreement. Clause 42 of the Agreement reads as under:

The onus to prove this Claim lay on the plaintiff. In absence of any computation of the claimed amount substantiated with credible evidence, plaintiff has failed to discharge this onus. Accordingly, the Claim of the plaintiff cannot be adjudicated in his favour and is accordingly rejected.

This Claim is based on the illegal deduction made by the Executive Engineer of the defendant. This deduction is illegal as there were no deficiencies and the entire work was executed as per specifications and under supervision of defendant.

It is the case of the defendant that the said deduction was made as per reduction item statement approved by the Superintending Engineer (SE) of the defendant in terms of Clause 25B of the Agreement. Clause 25B reads as under:

PW1 in his affidavit by way of evidence only reiterated the averments of the plaint in verbatim and when he was put to cross examination he denied the allegation of deposing falsely and stated that the explanation of illegal deduction is a matter of record. The relevant paragraph of the cross-examination recorded on 13.01.2016 reads as under:

DW1 in addition to reiterating the submissions of written statement, maintained its stand that the entire amount is paid and accepted and nothing more is payable.

From a perusal of Clause 25B, it is clear that the Agreement contemplated to confer Superintending Engineer of the defendant with power to adjudge not only the quantum of reduction but also justification for the same with respect to sub-standard work. The decision of SE is also stated to be final and non-arbitrable.

Notably, plaintiff with respect to present Claim has failed to draw my attention to any specific document whereby this illegal deduction for alleged deficiency is explained. The amount claimed is also not substantiated by way of evidence.

The plaintiff has failed to show as to how the deductions made by SE of the defendant were incorrect/wrong and additionally, Clause 25B raises a presumption of finality attached with the decision of the SE. Even though the finality in terms of Clause 25B operates only for the purpose of arbitration, the same, to my mind, is also operational for the purpose of the present suit because there is no credible evidence placed on record by the plaintiff except for a mere assertion that there were no deficiencies, in order to dislodge the said presumption.

Accordingly, the present Claim with respect to illegal deductions for alleged deficiencies is rejected.

By way of this Claim, the plaintiff is seeking refund of amount which is illegally withheld from payment of R.A. Bills for work done along with interest at the rate of 18% p.a. from the date of work being notified as complete.

It is the case of the plaintiff that certain amounts were withheld from the bills which were prepared and paid during the execution of the work. Such withholding after completion of work is illegal as the work was executed in terms of the Agreement and certificate to this effect is also recorded on the R.A. Bills.

On the other hand, defendant has raised this contention that all the R.A. Bills were duly accepted by the plaintiff without protest and all amounts are withheld in accordance with the provisions of the Agreement most of them being withheld on account of quality control and excess use of cement. The relevant portion of the written statement providing bill-wise remarks read as under:

PW1 in his affidavit by way of evidence deposed exactly in a similar manner to the averments mentioned in the plaint. The bill-wise distribution of withheld amount reads as under:

When PW1 was put to cross-examination on 13.01.2016, he stated that he cannot recollect if the defendant has paid the entire amount under Claim No. 10. PW1 also admitted that he accepted all the R.A. Bills and payments without any protest to the same. The relevant paragraph of the cross-examination reads as under:

DW1 only reiterated the averments of the written statement and stated that as the entire money payable is paid and duly accepted without any objections, nothing more is payable. No questions were put to him with respect to this Claim.

Notably, plaintiff has not addressed any arguments in the written arguments with respect to this Claim.

From a conspectus of the aforesaid, it is clear that amounts withheld qua 3 bills i.e., R.A. Bills bearing Nos. 4, 20, and 30 were released by the defendant to the plaintiff, rendering this Claim partly infructuous. The other bills are withheld on account of either excess use of cement or quality control.

The Plaintiff (PW1) in his cross examination duly admitted that he has not objected/protested to any of the R.A. Bills at the time of payment. In absence of any protest, this Claim for withholding of amounts is an afterthought. The plaintiff cannot argue the interim nature of R.A. Bills to protect this Claim as in any case nothing stopped the plaintiff from objecting/protesting to the withholding of the said amount.

At the cost of repetition from other portions of this judgment, the plaintiff qua this Claim also has only made a mere bald assertion that there were no deficiencies in the work executed by him. The plaintiff has also failed to specifically address the grounds on which the amounts are stated to be withheld by the defendant.

The onus of proof for this Claim lay on plaintiff not only to prove that an amount had been deducted but also that the deduction was unauthorised. In absence of any credible and cogent evidence, a mere assertion of the plaintiff cannot be accepted to award/decree this Claim in his favour. Plaintiff has not led any evidence to show that there were no deficiencies in the work executed by him. The present Claim is devoid of any credibility except assertions on part of the plaintiff, which cannot satisfy the standard of preponderance of probability in his favour.

The plaintiff ought to have challenged the bill-wise deductions with relevant measurements and evidences to specifically demonstrate that the deductions were unauthorised or extraneous to the scope of Agreement.

Accordingly, the Claim No. 10 with respect to refund of withheld amount of bills is rejected.

In view of the above, Claim No. 1 of the plaintiff is decided in his favour and the plaintiff is entitled to recovery of Rs. 41,77,809/- along with interest at the rate of 9 % per annum from the date of raising of the corrected final bill, i.e., 10.03.1999 till the date of actual payment.

All other Claims are decided against the plaintiff for the reasons as stated above.

For all the aforesaid reasons, the suit is partly decreed in favour of the plaintiff and he is entitled to recovery of an amount of Rs. 41,77,809/-towards Claim No. 1 for Payment of final bill, along with interest at the rate of 9% per annum to be calculated from 10.03.1999 till the date of actual payment.

Accordingly, the suit is decided in the terms set out above. The parties shall bear their own costs of these proceedings. Pending applications, if any, stand disposed of.

Let a decree be drawn in terms of this judgment.