Delhi Development Authority vs Shri Sat Bhushan
2010 Latest Caselaw 5718 Del

A-3

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Date of Judgment: 15.12.2010


+            R.S.A.No.39/2010 & CM No.3491/2010



DELHI DEVELOPMENT AUTHORITY           ...........Appellant
                 Through: Mr.Bhupesh Narula, Advocate.

                   Versus

SHRI SAT BHUSHAN                                 ..........Respondent
                         Through:    Nemo.



CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This second appeal has impugned the judgment and decree

dated 25.7.2008 which had endorsed the finding of the trial judge

dated 30.4.2007 whereby the suit of the plaintiff Sat Bhushan had

been decreed in the sum of Rs.1,50,000/- along with interest @ 6%

per annum.

2. The trial judge whose findings were endorsed by the

Appellate Court had examined the oral and documentary evidence

including the agreement entered into between the parties which

was the foundation of the claim of the plaintiff which is Ex.PW-1/1.

The court had framed six issues. On the basis of the oral and

documentary evidence led before it, the court held that the plaintiff

is entitled to the recovery of the aforestted amount. The

agreement Ex. PW-1/1 and its detailed clauses had been gone into.

3. Counsel for the appellant has urged that the impugned

judgment has erred in granting the amount of Rs.50,000/- as loss of

profit when admittedly the plaintiff had not led any evidence on

this score. The trial judge whose finding was endorsed by the

appellate court had returned a finding in para 18. Reliance had

been placed upon a judgment of the Supreme Court reported in 83

(2000) DLT 391 Harinder Anand Vs. DDA where the loss of profit

@ 10% had been granted holding it to be reasonable as the

recession of the contract was illegal. There is no fault in this

finding.

4. Counsel for the appellant has further argued that Clause 10,

General Condition No.1 of the agreement Ex.PW-1/1 clearly

stipulates that even if there is a fault on the part of the

department, a suit for compensation and damages could not be

filed; such a suit was not maintainable. Written statement filed by

the department has been perused. Although the defendant had

relied upon Clause 10 of the agreement Ex.PW-1/1 but no specific

plea had been set up that the suit of this nature was not

maintainable; no specific issue on the maintainability of the suit

had also been framed. The issues framed by the trial court reads

as follows:

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

2.Whether the defendants had illegally resided the contract vide letter dated 31.08.98?OPP

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

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

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

6.Relief."

5. No such plea having been taken prior to today such an

argument cannot be entertained before the second appellate Court

as to answer this query; the document Ex.PW-1/1 has necessarily

again to be scrutinized which is a fact finding and hands of this

Court are tied as far as fact findings are concerned. Unless there

is a perversity, this Court cannot interfere in finding of fact; no

such perversity is made out.

6. The Court had held that the plaintiff is entitled to the

declaration, injunction prayed for by him as also the amount which

finding was returned in his favour.

7. The question of law has been framed in the body of the

appeal at page 3. They read as follows:

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

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

iii. Whether the Ld.Trial Court allow watch and ward against the specific terms of the contract wherein the contractor has to be put their own guards till the execution of the work? iv. Whether the Court below has passed the judgment against the specific terms of the contract wherein the DDA is entitled to forfeit the earnest money?

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

These are all fact based. No substantial question of law has

arisen. The appeal as also the pending application is dismissed.

INDERMEET KAUR, J.

DECEMBER 15, 2010 nandan