Trade Fair Authority Of Haryana ... vs Ajay Jain
2018 Latest Caselaw 7165 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 818/2006

%                                                    5th December, 2018

TRADE FAIR AUTHORITY OF HARYANA AND ORS.
                                          ..... Appellants
                 Through:  Ms. Noopur Singhal, Advocate
                          for Mr. Anil Grover, Advocate
                          (M. No.9312765888).
                          versus

AJAY JAIN
                                                          ..... Respondent

                          Through:       Mr. Sunil Dutt, Advocate (M.
                                         No.9811168148).

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908(CPC) is filed by defendants in the suit

impugning the Judgment of the trial court dated 08.09.2006 by which

the trial court has decreed three claims to the respondent/plaintiff as

under:-

1. Payment for scaffolding for year 1999 Rs. 47,500

2 Balance payment as per letter dated Rs. 1,21,600 05.01.2001 being 10% of security deducted

3 Earnest money deposited at the time of tender Rs. 30,000

2. At the outset I may note that counsel for the

respondent/plaintiff very fairly does not seek the amount of

Rs.47,500/- under claim no.1 and therefore impugned judgment and

decree will stand modified accordingly by reducing this amount of

Rs.47,500/- from the judgment and decree passed for a sum of

Rs.1,99,100/- alongwith interest @ 12% per annum.

3. The only aspect and issue to be addressed by this Court is

whether the respondent/plaintiff is guilty of delay in the work awarded

to the appellants/defendants under Award no.1017 dated 21.09.2000

pertaining to design of exterior and related work for the Haryana

Pavilion at I.I.T.F., Pragati Maidan, New Delhi. Admittedly the work

was to commence on 05.10.2000 and was to be completed by

05.11.2000. The issue is whether the respondent/plaintiff has

completed the work by 05.11.2000 or the work got delayed thereafter

and was completed after 05.11.2000.

4. The counsel for the appellants/defendants has argued that

the appellants/defendants were entitled to deduct the penalty for the

delayed work in terms of Clause 8 of the Award Letter dated

21.09.2000, and this para 8 reads as under:-

"8. In case the work is not completed within the time period up to 5.11.2000 the agency will be penalized at the rate of Rs.25,000/- per day upto 13.11.2000 and the work will be completed at his risk and cost."

5. No doubt there is a clause which entitles the

appellants/defendants to deduct the penalty for delayed work beyond

05.11.2000 and upto 13.11.2000 at the rate of Rs.25,000/- per day, but

the factual issue is that whether or not the respondent/plaintiff had

completed the work by 05.11.2000. In this regard, there can be no

doubt that the respondent/plaintiff completed the work by 05.11.2000

inasmuch as the respondent/plaintiff had written its Letter dated

06.11.2000 attaching therewith the final Running Bill/Ex.PW1/17

dated 04.11.2000, and the letter dated 06.11.2000 shows that the entire

work was complete except laying of the carpet on the floor and which

was agreed, that the same would be laid on 12.11.2000. The counsel

for the respondent/plaintiff is right in contending that the carpet was to

be laid within the next few days after 05.11.2000 because otherwise

the carpet would have been spoiled even before the trade fair would

have commenced on 14.11.2000. This letter dated 06.11.2000 reads

as under:-

            "                                                   6th     Nov.

        The Administrator
        Trade Fair Authority of Haryana
        Haryana Bhawan
        Copernicus Marg
        New Delhi-1

Ref:-Renovation of HARYANA PAVILLION IITF-2000 Sub:- Submission of Third Running Bill

Madam, With reference to ongoing renovation work of Haryana Pavilion IITF-2000 at Paragati Maidan, New Delhi, please find herewith enclosed our third running bill for payment.

We also wish to inform you that we have completed all the works expect laying of carpet on the floor, as it was agreed to lay this on 12th Nov.2000.

Thanking you,

Your's Sincerely, For Options Unlimited,

RAJEEV SEHGAL, DIRECTOR

Encal a.a."

6. There is no doubt that the appellants/defendants have not

in any manner disputed the contents of the Letter dated 06.11.2000

written by the respondent/plaintiff to the appellants/defendants, and

even if the work was not completed then surely the

appellants/defendants would have contradicted the contents of the

Letter dated 06.11.2000. I may note that with respect to the same

work order, there were various other disputes and these have been

decided by the impugned Judgment dated 08.09.2006. As per the

impugned judgment various letters which are Ex.PW1/D2 to

Ex.PW1/D5 and Ex.PW1/16were written by the appellants/defendants

to the respondent/plaintiff which were not found to be responded to by

the respondent/plaintiff, and thus the contents of those letters were

used against the respondent/plaintiff. Therefore by the very same

logic the appellants/defendants are deemed to have accepted the

contents of the Letter dated 06.11.2000 which is reproduced above.

Once the work was completed by 05.11.2000 and Running bill

alongwith the Letter dated 06.11.2000 is given by the

respondent/plaintiff to the appellants/defendants, it cannot be held that

the respondent/plaintiff was guilty of delay in work beyond

05.11.2000.

7. Ld. counsel for the appellants/defendants have sought to

place reliance upon the Letter dated 10.10.2000 / Ex.PW1/8 issued by

the appellants/defendants to the respondent/plaintiff on the aspect of

respondent/plaintiff being guilty of delay beyond 05.11.2000, but

surely this letter has no bearing on whether the work was completed

by 05.11.2000 as this letter is dated 10.10.2000 and was written just

about four days after the commencement of work. It's pertinent to note

there could have been some delay but the issue is not about any delay

for the period from 05.10.2000 to 10.10.2000 but of a delay and non-

completion beyond 05.11.2000. I therefore reject the argument urged

on behalf of the appellants/defendants by placing reliance upon the

Letter dated 10.10.2000/Ex.PW1/8.

8. Ld. counsel for the appellants/defendants then sought to

place reliance upon Ex.PW1/D12 to show that certain items of work as

per the contract were not done, however, it is noted that the

appellants/defendants have already reduced payment made to the

respondent/plaintiff for certain works not done, and therefore, such

works stand deducted from the said work order. The document

Ex.PW1/D12 is pursuant to a Report prepared by the officials of the

appellants/defendants dated 30.12.2000 pointing to both the delay and

the defective nature of work and the deduction was only made for the

defective nature of work.

9. Ld. counsel for the respondent/plaintiff is also justified in

placing reliance upon Letter dated 05.01.2001/Ex.PW1/18 written by

the appellants/defendants to the respondent/plaintiff, and the para 6 of

this letter states that a penalty of Rs.1.93 lakhs was imposed upon the

respondent/plaintiff both for delay and unsatisfactory completion of

work. Therefore if the appellants/defendants have once deducted an

amount of Rs.1.93 lakhs out of the total payment made to the

respondent/plaintiff as penalty towards unsatisfactory completion of

work and an assumed delay, the appellants/defendants have thus

already deducted the penalty with respect to any assumed delayed

work, and thus no further deduction can be allowed to the

appellants/defendants from the final bill.

10. Ld. counsel for the appellants/defendants very vainly

canvassed that the trial court ought not to have granted interest and in

any case not at 12% per annum, however considering that we are

talking of payments due in the year 2000, and in the year 2000 if loan

was taken by the respondent/plaintiff from any bank, surely at that

time, the respondent/plaintiff would have to pay interest @ 12% per

annum simple, and therefore there is no illegality in the trial court

awarding interest @ 12% per annum simple.

11. In view of the aforesaid discussion, this appeal is partially

allowed and the impugned judgment and decree in favour of the

respondent/plaintiff is reduced by a sum of Rs.47,500/- from the

decretal amount of Rs.1,99,100/- i.e now the money decree against the

appellants/defendants in favour of the respondent/plaintiff will be

Rs.1,51,600/-. The rest of the judgment with respect to interest and

costs will remain as it is. The Parties are left to bear their own costs

so far as this appeal is concerned.

12. The decretal amount has been deposited by the

appellants/defendants in this Court. Out of the aforesaid amount, the

respondent/plaintiff is entitled to withdraw a sum of Rs.1,51,600/-

alongwith interest till the date of deposit in this Court as a principal

amount, and since this amount deposited in this Court is lying in a

fixed deposit, on this amount payable to the respondent/plaintiff of

Rs.1,51,600/- alongwith interest @ 12% per annum till the date of

deposit in this Court interest has accrued in favour of

respondent/plaintiff and this amount which is payable to the

respondent/plaintiff will be the amount of Rs.1,51,600/- with interest

@ 12% per annum till the deposit in this Court and future interest

accrued thereon as per the fixed deposit made. The balance amount

alongwith interest accrued thereon be refunded back to the

appellants/defendants.

DECEMBER 05, 2018                              VALMIKI J. MEHTA, J
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