Delhi High Court
Nbcc Ltd. & Mahavir Hanuman ... vs M/S Tameerat Group on 3 January, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 942/2016
NBCC LTD. & MAHAVIR HANUMAN REALTOR PVT LTD JV
& ANR ..... Plaintiffs
Through: Ms.Marilyn Khakha, Advocate.
versus
M/S TAMEERAT GROUP ..... Defendant
Through: Ex parte
% Date of Decision: 03rd January, 2018.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. The present suit has been filed for the recovery of additional
expenditure of Rs.1,10,47,748/- incurred by the plaintiffs for completion of
construction of the Lotus Apartments in NBCC Town in Kekhra District
Baghpat, U.P.
2. Since none appeared for the defendant despite publication in the
newspaper, it was proceeded ex parte vide order dated 09th February, 2017.
3. The relevant facts of the case are that the plaintiffs had entered into an
agreement with the defendant, a group of contractors and engineers, for the
construction of Lotus Apartments in NBCC Town on the Delhi-Saharanpur
Highway, Khekra, District Baghpat, U.P. (hereinafter referred to as the
„Project‟). It is pertinent to mention that the plaintiff no.1 is an
unincorporated joint venture between NBCC (India) Ltd. and Mahavir
Hanuman Realtor Private Limited for the construction of this project.
Plaintiff no.2 is NBCC (India) Ltd.
4. The tender for the said project was originally awarded to the
defendant for a total cost of Rs.6,19,70,166.28 vide letter of acceptance
dated 21st May, 2010 issued by the plaintiffs. Pursuant to the said letter of
acceptance, a detailed letter of award dated 04th June, 2010 was issued by the
plaintiffs in favour of the defendant. As per Clause 7 of the said letter of
award, the project had to be completed within 15 months from the tenth day
of issue of the letter of intent i.e. by 30th August, 2011. It was agreed
between the parties that the defendant had to complete its work relating to
the project within the stipulated time. As per Clause 76.1 of the GCC, the
courts at Delhi have the jurisdiction to deal with the matters pertaining to the
contract.
5. Ms. Marilyn Khakha, learned counsel for the plaintiffs states that
since the inception of the project, the defendant failed to meet any of the
deadlines stipulated in the contract, despite extension given by the plaintiffs.
She emphasizes that despite extension of the date of completion up to 30th
September, 2012, which was more than a year from the date of completion
stipulated in the contract, the project was abandoned by the defendant mid-
stream.
6. She points out that the plaintiffs through a letter dated 24th December,
2010 brought to the defendant‟s notice that the work relating to the project
needed to be expedited on all "fronts".
7. Ms. Marilyn Khakha states that NBCC sent a letter dated 09th August,
2011 to the defendant stating that the job assigned to it had only been
executed to the tune of Rs.1,34,00,000/- which was merely 22% of the total
contract value. It was further noted in the letter dated 12th September, 2011
that the work had come to a standstill.
8. She points out that a notice was issued on 22nd August, 2012 to the
defendant to show cause within seven days as to why action under Clause 72
of General Conditions of Contract should not be taken against it.
9. Learned counsel for the plaintiffs states that NBCC terminated the
contract with the defendant for the construction of Lotus Apartments vide
letter dated 07th November, 2012 under Clause 72 of the GCC. She
reiterates that the total work executed by the defendant was only to the tune
of 2,26,56,999/- i.e. 37% of the total work. She contends that it was evident
vide the 18th R.A.Bill dated 22nd November, 2012 issued by the defendant
that the defendant had accepted the termination of the contract. According
to the plaintiffs, the work left incomplete by the defendant was valued at
Rs.2,92,96,236/-
10. She states that M/s Kashyapi Infrastructure Pvt. Ltd. was awarded the
balance work of construction of Lotus Apartments for a total contract value
of Rs.3,46,63,683/- vide letter of award dated 17th April, 2013. She
contends that the additional expenditure incurred by the plaintiffs was
Rs.81,50,732/- and the same was arrived at by deducting the value of work
left incomplete by the defendant from the bills raised by M/s Kashyapi
Infrastructure Pvt. Ltd.
11. Ms. Marilyn Khakha, learned counsel for the plaintiffs states that after
adjusting the said amount against performance guarantee and the amount
withheld from the defendant, the additional expenditure incurred by the
plaintiffs works out to Rs.48,50,732/-.
12. Further, according to her, in accordance with Clause 72.1 of the GCC,
the plaintiffs are entitled to compensation for delay at 10% of the tendered
value i.e. Rs.61,97,016.63. Therefore, the total amount payable by the
defendant to the plaintiffs is Rs.1,10,47,748/-.
13. The plaintiffs have placed on record their evidence by way of affidavit
of Sh.Dinesh Kumar, AGM (Engg.), NBCC. In the said affidavit, the
witness has proved the letter of acceptance, letters of awards, General
Conditions of Contract, letters and notices issued by the plaintiffs as well as
the running bills submitted by the defendant and the expenditure incurred by
the plaintiffs for completion of the contract through M/s Kashyapi
Infrastructure Pvt. Ltd.
14. Keeping in view the aforesaid facts and the documents on record as
well as the arguments advanced by the learned counsel for the plaintiffs, this
Court is of the view that the plaintiffs have proved their case and are entitled
to be compensated in accordance with Clause 72.1 of GCC as well as for the
additional expenditure incurred for completing the contract left incomplete
by the defendant.
15. Accordingly, the present suit is decreed for Rs.1,10,47,748/- along
with the pendente lite and future interest @ 8% per annum. This Court may
mention that it is awarding the interest @ 8% per annum as that is the
normal rate at which the banks are lending monies now-a-days.
MANMOHAN, J
JANUARY 03, 2018
KA
