Delhi High Court
D.D.A vs M/S.Pride Constructions on 15 December, 2008
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
Judgment reserved on : December 03, 2008
% Judgment delivered on : December 15, 2008
+ RFA 648/2005
D.D.A ..... Appellant
Through: Mr.Yeeshu Jain, Advocate.
versus
M/S.PRIDE CONSTRUCTIONS ..... Respondent
Through: Mr.B.M.Sehgal, Advocate.
RFA 649/2005
D.D.A ..... Appellant
Through: Mr.Yeeshu Jain, Advocate.
versus
M/S.PRIDE CONSTRUCTIONS ..... Respondent
Through: Mr.B.M.Sehgal, Advocate.
RFA 651/2005
D.D.A ..... Appellant
Through: Mr.Yeeshu Jain, Advocate.
versus
M/S.PRIDE CONSTRUCTIONS ..... Respondent
Through: Mr.B.M.Sehgal, Advocate.
RFA No.648, 649 & 651 of 2005 Page 1 of 16
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.
1. The above captioned appeals arise out of a
common judgment and decree dated 5.5.2005 whereby three
suits filed by the respondent; being Suit No.227/2004, Suit
No.228/2004 and Suit No.229/2004 have been partially
decreed.
2. The claim in the three suits was as under:-
(A) Suit No.227/2004
(I) Watch and ward charges @Rs.6600/- p.m.
for 18 months. Rs.1,18,800/-
(II) Amount deducted from the final bill. Rs. 95,200/-
(III) Refund of security deposit Rs.1,06,000/-
(IV) Interest @12% per annum on watch and
ward charges for 23 months. Rs. 27,334/-
(V) Cost of legal notices dated 11.1.2001
and 31.1.2003 Rs. 6,600/-
--------------------------------
Rs.3,53,934/-
(B) Suit No.228/2004
(I) Watch and ward charges @Rs.6,600/- p.m.
for 18 months. Rs.1,18,800/-
(II) Amount deducted from the final bill. Rs.1,68,840/-
(III) Refund of security deposit Rs.1,50,000/-
(IV) Interest @12% per annum on watch and
ward charges for 23 months. Rs. 27,334/-
(V) Cost of legal notices dated 11.1.2001
and 31.1.2003 Rs. 6,600/-
--------------------------------
Rs.4,71,574/-
(C) Suit No.229/2004
(I) Watch and ward charges @Rs.6,600/- p.m.
for 18 months. Rs.1,18,800/-
(II) Amount deducted from the final bill. Rs. 88,200/-
(III) Refund of security deposit Rs.1,00,000/-
(IV) Interest @12% per annum on watch and
ward charges for 23 months. Rs. 27,334/-
(V) Cost of legal notices dated 11.1.2001
and 31.1.2003 Rs. 6,600/-
--------------------------------
Rs.3,40,934/-
3. The three suits have been decreed awarding watch
and ward charges @Rs.6,600/- per month for a period of only
12 months; amount deducted from the final bills(s) has also
been decreed and so also the claim for security deposit in each
suit. Cost incurred on account of sending legal notices have
been declined. Pre suit interest has been declined. Pendente
lite and future interest has been awarded @12% per annum.
Thus, decree passed in suit No.227/04 is in sum of
Rs.2,80,400/- with interest as afore-noted. Decree passed in
Suit No.228/04 is in sum of Rs.3,98,040/- with interest as afore-
noted. Decree in suit No.229/04 is in sum of Rs.2,67,400/- with
interest as afore-noted.
4. The three suits were consolidated vide order dated
20.1.2004 and evidence has been recorded in Suit
No.229/2004. It may be noted that original documents filed by
the plaintiff in the three suits have been separately exhibited
with duplication of exhibit marks in the three suits.
Documents filed by DDA in Suit No.229/2004 have been
exhibited in said suit.
5. For clarity it may be recorded that in Suit
No.228/2004, put in a tabular form, the status of the
documents exhibited would be as under:-
EXHIBIT DATE
EXH. PW1/1 AGREEMENT BETWEEN
THE PARTIES DATED
9.8.1999
EXH PW 1/ 2 LETTER DATED 16.2.2001
EXH PW1/3 LETTER DATED 3.5.2001
EXH PW1/4 LETTER DATED 8.9.2000
EXH PW1/5 LETTER DATED 29.8.2000
EXH PW1/6 LETTER DATED 28.8.2000
EXH PW1/7 LETTER DATED 4.8.2000
EXH PW1/8 LETTER DATED 11.7.2000
EXH PW1/9 LETTER DATED 12.5.2000
EXH PW1/10 LETTER DATED 11.3.2000
EXH PW1/11 TO EXH POSTAL RECEIPTS DATED
PW1/15 12.11.2001
EXH PW1/16 NOTICE U/S 53(B) OF
DELHI DEVELOPMENT
ACT DATED 11.1.2001
EXH PW1/17 NOTICE DATED 31.1.2003
UNDER SECTION 53(B) OF
DELHI DEVELOPMENT
ACT
EXH PW1/18 POSTAL RECEIPT
EXH PW1/19 POSTAL RECEIPT
6. In Suit No.227/2004, Exhibits PW-1/16 to Ex.PW-
1/18, have not been filed and hence not proved. But, two
documents, Ex.PW-1/20 and Ex.PW-1/21, have been proved.
Nothing has turned on said documents and no submission
were made pertaining thereto before the learned Trial Judge or
in appeal. Hence, we need not note their contents.
7. In Suit No.229/2004 documents exhibited in Suit
No.228/2004 have been proved as exhibits save and except
Ex.PW-1/6 which has not been relied upon in said suit.
Pertaining to DDA, documents exhibited are as under:-
EXHIBIT LETTERS DATED
PW1/D1 14.9.2000
PW1/D2 29.4.2000
PW1/D3 2.9.2000
PW1/D4 4.2.2000
PW1/D5 20.1.2004
PW1/D6 3.11.1999
PW1/D7 29.4.2000
PW1/D8 5.11.1999
PW1/D9 (MARKED AS PW1/9) 29.4.2000
The said documents are common to all the suits.
8. The common case pleaded in all the plaints was
that vide three work orders, DDA awarded plaintiff the work of
constructing 126, 136 and 240 LIG flats in different sectors of
the colony called Rohini in Delhi with date of completion of the
three works being 22.4.1994, 3.10.1994 and 5.1.1995.
Alleging that the plaintiff held back certain works at the
request of DDA on account of area not being developed and
the allottees not willing to take possession of the flats, it was
pleaded that a supplementary agreement, Ex.PW-1/1 was
executed pertaining to the three contracts on 9.8.1999
between the plaintiff and DDA, inter alia, recording that the
plaintiff has substantially completed the works and that works
listed in schedule-B shall be held back and completed during
the process of handing over the flats to the allottees.
9. Schedule-B reads as under:-
Name of Work:- M/O Completed scheme in Rohini Zone.
SH:- C/o 126, LIF Incremental houses in Pkt.8 & 9
Sector -25, Rohini Ph.III.
The following items or those part of items which
may be executed under the supplementary agreement for
the type of finishing items during the process of handing
over the flats/built up spaces to the prospective allotted (sic
prospective allottees) are as under:-
1. Final cost of white-wash/colour wash painting of
doors, windows, water meter boxes SCI/GI pipes and
shutters etc.
2. Providing and fixing of sanitary fittings and fixtures.
3. Testing of G.I. pipes and other fittings etc.
4. Easing of steel windows and wooden shutters etc.
5. Providing and fixing of door window fitting and
providing and fixing glass panes to window.
6. Removal of mortar droppings paints and white wash
splashes from walls and floors.
7. Cleaning gully traps house manholes and fixing of
covers etc.
8. Rectification of defects and repair work, if any.
9. Watch and ward of whole housing pockets round
the clock by providing the chowkidars/security guards.
Agency will be full responsible for any type of theft and
pilferage for completed houses and make good the same for
which nothing extra would be paid.
10. The watch and ward charges will be paid
Rs.6600/- per month for the abovesaid work (as per rates
specified in Circular No.510 dated 2/5/97) issued by EMS
Office.
Sd/- Sd/-
Contractor Executive Engineer
R.P.D. 10/DDA"
10. Pleading that the supplementary agreement dated
9.8.1999 was valid for a period of 18 months and that even
thereafter the plaintiff was compelled to engage watch and
ward staff to protect the flats because DDA did not hand over
possession thereof to the allottees, claim was made for
expenses incurred on account of continued deployment of
watch and ward staff for another 18 months. Amounts
deducted from the final bill(s) as afore-noted were claimed to
be refundable on the ground that the works were completed.
So was the basis to claim the refund of security deposit.
11. DDA opposed the claims in the three suits alleging
that the plaintiff did not communicate to the defendant that all
items of work as stated in the supplementary agreement were
completed/executed and the flats could be taken over from
him by the DDA. In the absence of such a statement from the
plaintiff, the defendant was/is not bound to make any payment
whatsoever to the plaintiff till the work mentioned in the
supplementary agreement was executed in full and proper
spirit and manner. (Refer para 5.iii of the written statement).
Pertaining to the claim for continued deployment of watch and
ward it was pleaded the plaintiff failed to provide security in
the true sense and failed to execute the remaining work. The
DDA was not thus bound to release any kind of payment even
after the expiry of the said maintenance period. (Refer para
5.v of the written statement). Same was the defence pleaded
with respect to refund of security deposit.
12. Plaintiff examined Shri D.K.Nijhawan as PW-1 who
proved various letters communicated by the plaintiff to DDA.
The letters made a common reference to the 126, 136 and 240
flats which were constructed by the plaintiff in Sectors 25, 22
and 21 respectively in the colony Rohini. Briefly noted, the
letters are reminders on various dates between March 2000 till
May 2001 requesting DDA to take possession of the flats
because thefts have started taking place with the thieves
stealing sanitary fittings from a few flats. DDA was informed
that since a theft insurance policy was obtained from New
India Assurance Company, claims should be lodged with the
said company. The witness was confronted with the letters
Ex.PW-1/D-1 to Ex.PW-1/D-9, receipt whereof was admitted by
him. In sum and substance, the said letters referred to the
flats to be constructed by the plaintiff; grievance of DDA being
that fittings and fixtures are not being provided in the flats and
that the allottees have been complaining about fittings and
fixtures not being affixed in the flats. Ex.PW-1/D-1, dated
14.9.2000 is the complaint by DDA addressed to the plaintiff
informing that pertaining to 136 flats, in more than 50 flats,
possession whereof has been handed over to the allottee,
fittings and fixtures have not been affixed. Similar is the
complaint in Ex.PW-1/D-2 dated 29.4.2000. Ex.PW-1/D-4 is a
letter dated 4.2.2000 addressed by DDA to the plaintiff;
referring to the entire lot of flats in the three sectors of Rohini,
DDA has requested the plaintiff to complete finishing work in
the flats in respect whereof a list was prepared and sent to the
plaintiff under cover of letter dated 5.11.1999 addressed by
DDA. We note that other letters make similar request of
affixing all fittings and fixtures in the flats as also completing
the final coat of colour wash on the outer walls and white-wash
on the inner walls. Vide Ex.PW-1/9, on 29.4.2000, DDA
informed the plaintiff that Rs.700/- per flat retained as money
withheld from the final bill would be paid when the flats were
completed in all respects i.e. all fittings and fixtures put in
place.
13. Decreeing the three suits as afore-noted, learned
Trial Judge has held that after 29.4.2000 no letter was written
to the plaintiff and that DDA did not lodge any claim with
respect to the goods which were stolen and that even the
value of the stolen items was not given to the Court.
Conclusion drawn is that the plaintiff would be entitled to
watch and ward charges for a further period of 12 months
pertaining to all three sites i.e. Rs.6,600 x 12 = Rs.79,200/- for
each site. Rs.700/- per flat deducted from the final bill as
claimed for the three sites as also refund of security deposit
for the three contracts has been held to be the entitlement of
the plaintiff.
14. Challenging the impugned judgment and decree,
learned counsel for DDA urged that the letters Ex.PW-1/D-1 to
Ex.PW-1/D-9 established theft of some fittings and fixtures
from the flats and that this was admitted even by the plaintiff
in its letters Ex.PW-1/9 to Ex.PW-1/10, all of which requested
DDA to lodge a claim with the insurance company with whom
the fittings and fixtures were insured against theft; counsel
urged that it was apparent that the plaintiff had not deployed
any watch and ward staff at site and hence was not entitled to
recompense for expenditure on account of watch and ward
staff. Counsel further urged that no documentary evidence
was led of making any payment to chowkidars or watchmen
deployed at the three sites. Conceding that entire fittings and
fixtures in all the flats were not stolen, further conceding that
the value of the stolen articles were not proved, counsel urged
that the onus was on the plaintiff to establish as to how many
flats were affected by the theft. Thus, counsel urged that the
plaintiff was not entitled to a refund of Rs.700/- per flat which
was deducted when the supplementary agreement was
executed. Counsel urged that security deposit had to be
forfeited because, admittedly, as per the contract the same
was refundable when the works were completed.
15. Responding to the contention of learned counsel for
the appellant/DDA, counsel for the respondent/plaintiff urged
that no evidence was led by DDA of having spent any money
for completion of the flats and hence a presumption arises that
the work was completed in all the flats. Thus, counsel urged,
the learned Trial Judge was justified in directing refund of the
money retained by DDA @Rs.700/- per flat when the
supplementary agreement was executed as also the refund of
the security deposit. Pertaining to the claim for watch and
ward charges, counsel urged that the learned Trial Judge has
recompensed the plaintiff @Rs.6,600/- per month, the agreed
rate, for a period of only 12 months as against the period of 18
months for which the claim was made. Counsel urged that
merely because theft took place did not mean that watch and
ward staff was not deployed. Pertaining to the plea that no
documentary evidence was led pertaining to salary paid to
chowkidars/watchmen, counsel urged that affidavits of three
chowkidars, Nathu Ram, Ram Chander and Bhim Ram were
filed in Suit No.227/2004 as per which affidavits the three
persons were engaged as chowkidars at the three sites and
had received their wages.
16. The undisputed position between the parties is that
three supplementary agreements were executed on 9.8.1999,
one each pertaining to the three works which were awarded by
DDA to the plaintiff. At that time the flats were near
completion and since experience of DDA was that fittings and
fixtures, particularly relatable to sanitary fittings like taps, ball
stoppers, mixtures, stop-cock, MS Stays, fasteners etc. are
prone to theft, installation thereof was deferred as per the
supplementary agreement and certifying the final bill for
payment Rs.700/- per flat was retained to be paid over when
the flats were handed over with all fittings and fixtures intact.
Admittedly, fittings and fixtures were not intact when
possession of the flats were handed over to the allottee. It
may be clarified that theft pertained to only some flats and not
all.
17. Unfortunately, learned Trial Judge has ignored
intrinsic evidence which shows as to which flats were affected.
18. As noted above, the works pertained to 126 flats in
Sector-25, Rohini. 136 flats in Sector-22, Rohini and 240 flats
in Sector-21, Rohini. Ex.PW-1/D-1 evidences that 50 out of 136
flats in Sector-22 were affected. Ex.PW-1/D-6 shows that 41
flats out of 126 were affected in Sector 25. Ex.PW-1/D-8 shows
that 67 flats out of 240 in Sector 21 Rohini were affected. We
say so for the reason the plaintiff has been directed to
complete the works in 50 out of 136 flats, 41 out of 126 flats
and 67 out of 240 flats in the said three sectors.
19. Assuming that all pending works in the said flats
remained unexecuted, at best, DDA could have retained the
following amounts:-
(a) Rs.700 x 50 = Rs.35,000/-.
(b) Rs.700 x 41 = Rs.28,700/-.
(c) Rs.700 x 67 = Rs.46,900/-.
20. But, it is not in dispute that the fittings and fixtures
were insured with New India Assurance Company by DDA for
which the premium was paid by the plaintiff. The letters
written by the plaintiff to DDA show that the plaintiff
repeatedly requested DDA to lodge a complaint with the
insurance company. For unexplainable reasons, DDA did not
do so.
21. Thus, the contractor would be entitled to a refund of
the amount deducted from the final bill @Rs.700/- per flat and
to that extent we find no infirmity in the view taken by the
learned Trial Judge that the amount claimed in the three suits
under (II) has to be awarded in favour of the plaintiff. On the
same reasoning we hold that the view taken by the learned
Trial Judge that the security deposit claimed in the three suits
has rightly been directed to be refunded, additionally for the
reason it is not the case of DDA that the security deposit has
been forfeited. No order passed by the competent authority
forfeiting the security deposit was shown to us.
22. Pertaining to the claim for watch and ward, merely
because theft took place may not be sufficient to hold that no
watch and ward was deployed. But, there has to be proof that
the plaintiff deployed watch and ward staff and paid wages to
the staff deployed. There is no evidence on record in the form
of any register, voucher or a receipt that any amount was paid
to any person deployed as a chowkidar/watchman. The only
evidence is in the form of three affidavits filed by one Nathu
Ram, Ram Chander and Bhim Ram to the effect that they were
employed as chowkidars/watchmen at the three sites. The
said affidavits do not inspire any confidence for the reason the
deponents thereof were not produced as witnesses and did not
subject themselves to cross-examination. We thus set aside
the finding of the learned Trial Judge pertaining to amount
awarded for watch and ward.
23. The appeals are partially allowed. Impugned
judgment and decree dated 5.5.2005 decreeing Suit
No.227/2004, Suit No.228/2004 and Suit No.229/2004 is
modified and the three suits are decreed as under:-
(a) Suit No.227/2004 is decreed in sum of Rs.2,01,200/-
(Rupees Two Lakhs One Thousand and Two
Hundred only) together with interest @12% per
annum from the date of the suit till realization plus
proportionate costs.
(b) Suit No.228/2004 is decreed in sum of Rs.3,18,840/-
(Rupees Three Lakhs Eighteen Thousand Eight
Hundred and Forty only) together with interest
@12% per annum from the date of the suit till
realization plus proportionate costs.
(c) Suit No.229/2004 is decreed in sum of Rs.1,88,200/-
(Rupees One Lakh Eighty Eight Thousand and Two
Hundred only) together with interest @12% per
annum from the date of the suit till realization plus
proportionate costs.
24. There shall be no orders as to costs in appeal.
25. We note that pursuant to interim orders passed in
all the appeals the decretal amount has been deposited by the
appellant in this Court which has been invested in a fixed
deposit. We direct the Registry to calculate the amount
payable to the respondent as per the present judgment and
pay over the same to the respondent and refund the balance
to the appellant.
PRADEEP NANDRAJOG, J.
J.R. MIDHA, J.
December 15, 2008
DK
