Yuvraj Singh vs Delhi Development Authority
2014 Latest Caselaw 99 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       I.A. No. 17982/2011 (O.XXXVII R.3 (5) CPC) in CS (OS) No.
        1142/2011
%                                    Reserved on: 19th November, 2013
                                     Decided on: 6th January, 2014
YUVRAJ SINGH                                                                ..... Plaintiff
                                               Through:   Mr. S.K. Jain, Advocate.

                                   versus

DELHI DEVELOPMENT AUTHORITY                                          ..... Defendant
                     Through:                             Mr. M.K. Singh, Advocate.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

1.

By this application the Defendant seeks leave to defend the suit.

2. Learned counsel for the Defendant contends that the present suit for

recovery does not fall within the scope and ambit of Order XXXVII CPC.

No cause of action ever accrued in favour of the Plaintiff and against the

Defendant. The Defendant constituted a Committee to look into the matter

relating to bills of the Plaintiff which found certain lapses and thus a

Vigilance Inquiry has been ordered into the same. The entire records relating

to the concerned Division Office and the works in dispute are in the custody

of the Vigilance Branch. It is the case of the Defendant that the Claims No.

6 to 10 are beyond the scope of the agreement and the Defendant is not

entitled to pay anything to the Plaintiff on the said count. Further as regards

the Claim No. 1 the Third Running Bill is under scrutiny and necessary

action will be taken only after the administrative decision by the department.

Regarding Claim No. 2 it is contended that the security can only be released

after the payment of the final bill. The payment, if any, regarding Claim No.

3 can only be made after taking of the administrative decision after the

inquiry is over. Regarding Claim No. 4, the payment, if any, for the work

executed will be duly considered at the time of payment of the final bill.

Further the Claim No. 5 is not tenable as the quantum of work was washed

away with water and is not required to be paid by the Defendant. The case

of the Plaintiff is unsubstantialed and sham and no case for summary trial is

made out. Hence the Defendant be granted unconditional leave to defend to

contest.

3. Learned counsel for the Plaintiff on the other hand contends that the

defence taken by DDA is not defence in the eyes of law and thus the

application is liable to be dismissed. Merely because an inquiry is pending

before the Vigilance Department of the Defendant, the claim of the Plaintiff

cannot be denied. The vigilance inquiry is only against Shri S.K. Sethi, the

then Executive Engineer of the Defendant on the complaint of the Plaintiff

regarding demand of bribe for releasing the payment. It is an unequivocal

admission on the part of the defendant DDA, its officials and the Committee

that the plaintiff has done the work for which the plaintiff is entitled to

payments.

4. I have heard learned counsel for the parties.

5. The Plaintiff has filed the present suit for recovery of Rs.

1,99,18,881/- against the Defendant for construction of internal road/foot

path and parking at Yamuna River, West Bank, Vijay Ghat, Pushta. The bid

of the Plaintiff was accepted and he was awarded a tender vide letter dated

28th June, 2007. The case of the plaintiff is that the parties agreed that the

time for completion of work would be four months, the date for starting the

work was 8th July, 2007 and the date for completion of work was set as 7th

November, 2007. The estimated cost put to tender was Rs. 35,81,969/- and

the accepted tender amount was Rs. 44,06,973/-. After receipt of the Award

Letter, the Plaintiff arranged infrastructure, labour, material etc. for

execution of the work as per the schedule of quantities and thus invested a

huge amount of money for execution of work. The site was full of bushes

and long grass which was required to be cleared. The Plaintiff submitted

these facts and also submitted the rates to be charged for the extra work of

jungle clearing and total station survey along with the detailed analysis of

rates in the last letter. The Plaintiff mentioned in the said letter dated 10th

July, 2007 that he would not be accepting any rate less than the market rates.

The Plaintiff also informed the Defendant about the resources deployed by

him at the site. The Defendant directed the Plaintiff to clear the Jungle under

the extra item and the Plaintiff executed the work accordingly which can be

verified from the Hindrance Register. The Defendant failed to provide

required drawings to the Plaintiff and recorded in the Hindrance Register at

site on 24th July, 2007 that alignment plan and sections for the road to be

constructed were not available with them. Thus the Defendant felt that total

station survey is necessary for preparation of working drawings. However,

the Defendant failed to conduct the survey work. The Plaintiff informed the

Defendant that the labour, material and staff etc. of the Plaintiff were lying

idle at the site and made requests to the Defendant to issue working drawings

so that the work could be taken up, but to no avail. The Defendant was not

having the full working drawings of the project and therefore, the Defendant

directed the Plaintiff to conduct the total station survey of the site under

extra item for preparation of the working drawings. The Plaintiff executed

the work on total station survey and completed the job on 21 st August, 2007

to the satisfaction of the Defendant. There were other various hindrances

which had to be resolved by the Defendant.

6. From the narration of the facts in the plaint itself it is evidently clear

that the Claims No. 6 to 10 were beyond the agreement. In view thereof the

Plaintiff is required to prove by leading evidence that there was an

agreement between the Plaintiff and the Defendant for the said work and the

Defendant is liable to pay for the same. Further the facts mentioned in the

plaint are disputed by the defendant. As per the documents filed by the

plaintiff, the defendant had given extension of time reiterating clearly that

time was the essence of the contract. Thus which of the parties caused the

delay is required to be adjudicated. The case of the defendant as per the

letters is that the claim of the plaintiff regarding deployment of staff was

false, as on surveys by the officers of the defendant the same was found to be

incorrect. At this stage the only thing which has to be seen is whether the

defendant has made out triable issues. In view of some of the claims being

beyond the agreement and others denied by the defendant, I am of the

considered opinion that the Defendant has made out a case for grant of leave

to defend.

7. Application is, therefore, disposed of granting leave to defend.

CS (OS) No. 1142/2011

8. Written statement be filed within four weeks. Replication be filed

within four weeks thereafter.

9. List before the learned Joint Registrar on 18th March, 2014 for

admission/denial of the documents.

(MUKTA GUPTA) JUDGE JANUARY 06, 2014 'vn'