Rakesh Kumar vs The Nuclear Science Centre & Ors.
2011 Latest Caselaw 5509 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No.509/2002

%                                                   November 16, 2011

RAKESH KUMAR                                        ..... Appellant
                           Through:     Mr. C.B.N. Babu, Advocate

                     Versus


THE NUCLEAR SCIENCE CENTRE & ORS.          ..... Respondents
                 Through: Mr. A. Konar, Advocate

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA


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

    2.   To be referred to the Reporter or not?

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


VALMIKI J. MEHTA, J. (ORAL)

1. This Regular First Appeal filed under Section 96 of the Civil

Procedure Code, 1908 (CPC) impugns the judgment and decree of the trial

court dated 02.04.2002 by which the suit of the appellant/plaintiff for

recovery of ` 3,50,963/- was dismissed.

RFA No. 509/02 Page 1

2. The facts of the case are that the appellant-contractor was awarded a

contract for making a New Bitumen Road for the respondent No. 1/Nuclear

Science Centre vide letter of intent dated 01.03.2000. The total estimate of

the work to be done was ` 12,42,000/- and bills were to be submitted as per

the actual measurement of work done from time to time. The work relating

to seal coat was to be done @ ` 20/- per square meter. The

appellant/plaintiff claims to have completed the work and submitted a final

bill. After giving due adjustment for payment made, it was claimed that an

amount of ` 2,24,798/- was due. It was stated that the

respondents/defendants through their letter dated 11.05.2000 pointed out

certain defects which were rectified by the appellant/plaintiff. The

appellant/plaintiff also claimed that an extra work to the tune of ` 39,632/-

was done. The subject suit came to be filed for recovery of ` 2,24,798/- as

the balance payment of the work done, an amount of ` 83,517/- as security

deposit and ` 42,648/- as interest @ 24% per annum totaling to `

3,50,963/-.

3. The respondents/defendants contested the suit and pleaded that as per

the joint inspection carried out between the parties on 08.05.2000 it became

RFA No. 509/02 Page 2 apparent that the work of the appellant/plaintiff was not satisfactory and

therefore a detailed list of works to be rectified was supplied to the

plaintiff/appellant vide letter dated 11.05.2000. Though the

appellant/plaintiff by its letter dated 22.05.2000 claimed that deficiencies

were removed, however, when the representatives of the Central Roads

Research Institute (CRRI) visited the site on 25.05.2000 it was found that

there were deficiencies in the work and which were pointed out to the

appellant/plaintiff vide a letter dated 31.05.2000. The appellant/plaintiff by

means of two letters dated 07.06.2000 (Ex. DW-1/2) and 19.06.2000 (Ex.

DW-1/3) admitted the defects in the work and promised to rectify the same,

however, the work which was to be done after a rainy season was not done

by the appellant/plaintiff and therefore this was notified to the

appellant/plaintiff by the respondent No. 1/defendant No. 1 vide its letter

dated 26.09.2000 (Ex. DW-1/1). It was also pleaded that the

appellant/plaintiff relied upon a report of the CRRI dated 26.07.2000 (Ex.

PW-1/12), however, that report only dealt with the content of the Bitumen in

the seal coat but not with respect to the issue of the defective nature of work.

4. The trial court after the pleadings were completed framed the

RFA No. 509/02 Page 3 following issues:

"1. Whether plaintiff has not performed the contract to the satisfaction of the defendant, if so its effects? OPD

2. Whether defendants have made payment in respect of the agreement to the plaintiff save and except the final bill which could not have been paid until the works were completed satisfactorily and the defects rectified? OPD

3. Whether the defendants are entitled to with-hold the amount of contract of seal-coating alongwith security deposit? OPD

4. Whether plaintiff is entitled to amount claimed? OPP

5. Relief."

5. The trial court has dismissed the suit by holding that the admitted

documents Ex. DW-1/2 dated 07.06.2000 and Ex. DW-1/3 dated

19.06.2000, being the letters of the appellant/plaintiff himself, admitted the

defective work, which admittedly was not rectified and, therefore, the

appellant/plaintiff was not entitled to suit amount.

6. Learned counsel for the appellant argued that the report of the CRRI

dated 26.07.2000 (Ex. PW-1/12) clearly showed that there was no defect in

the work and, therefore, the suit ought to have been decreed. It was argued

that letters of the appellant/plaintiff to the defendants dated 07.06.2000 and

RFA No. 509/02 Page 4 19.06.2000, Ex. DW-1/2 and Ex. DW-1/3 respectively, were got signed

under coercion and pressure and, therefore, cannot be relied upon.

7. In order to appreciate the first contention of the appellant/plaintiff, it

was necessary to refer to the document Ex. PW-1/12 which is relied upon by

the appellant/plaintiff to claim that there is no defective work. This report is

in fact a letter from CRRI to the respondent No. 1 and the same reads as

under:

         "F.P. 3D(2)/331                            Dated : 26th July, 2000

         To

                 Shri M.K. Gupta,
                 S.E. (Civil),
                 Nuclear Science Centre
                 Post Box No. 10502,
                 Aruna Asaf Ali Marg
                 New Delhi - 110067 (India)

         Sir,

Kindly refer to your letter No. NSC/9.85 dated 10 th July, 2000. The sample of seal coat sent by your department has been tested.

The test results are as under:

         1.      Bitumen Content                  8.89%
                 By weight of Mix


RFA No. 509/02                                                                Page 5
        2.        Sieve Analysis               2.36mm. - 100% Passing
                                              180 Micron - 100% Rtd.
                 Thanking you,

                                              Yours faithfully,

                                             (Dr. Sunil Bose)
                                         Flexible Pavements Division"

A reading of this letter quite clearly shows that this letter has nothing to do

with whether the work done by appellant/plaintiff was defective or not and

this letter only talks of the Bitumen Content. Even if the Bitumen Content is

as per the desired parameters that does not mean that the work done by the

appellant/plaintiff was not defective, and as admitted by him vide Ex. DW-

1/2 and Ex. DW-1/3.

8. The argument raised on behalf of the appellant/plaintiff that the

appellant's letters Ex. DW-1/2 and Ex. DW-1/3 were got signed under

coercion and pressure is an argument without any substance whatsoever

because if these letters were written on account of any pressure or coercion,

the appellant/plaintiff would have thereafter withdrawn these letters,

however, these letters were never withdrawn. In fact, the respondent No. 1

after the rainy season wrote its letter dated 26.9.2000 (Ex. DW-1/1) which

RFA No. 509/02 Page 6 reminded the appellant/plaintiff to rectify the defective work, however, the

rectification was not done.

9. A civil case is decided on balance of probabilities. The balance of

probabilities shows that in the present case the work done by the

appellant/plaintiff was defective in as much as the appellant/plaintiff on his

own letterheads and in his own handwriting admitted the work done to be

defective vide Ex. DW-1/2 and Ex. DW-1/3. I have, therefore, no reason to

interfere with the impugned judgment and the decree dismissing the suit of

the appellant/plaintiff.

10. In view of the above, the appeal, being without merit, is dismissed,

leaving the parties to bear their own costs. Trial court record be sent back.

VALMIKI J. MEHTA, J.

NOVEMBER 16, 2011
godara




RFA No. 509/02                                                            Page 7