Municipal Corporation Faridabad ... vs M/S Thola Gamdu Co.Op L And C ...
2023 Latest Caselaw 877 P&H

RSA-79-2022 (O&M)                                                       -1-

    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                   CHANDIGARH

                                RSA-79-2022 (O&M)
                                Date of decision: 17.01.2023

Municipal Corporation, Faridabad and others
                                                             ...Appellants
                   Versus

M/s Thola Gamdu Coop. L & C Society Ltd.

                                                            ...Respondent

CORAM: HON'BLE MR.JUSTICE H.S. MADAAN

Present:    Mr. Udit Garg, Advocate for
            Mr. Rajiv Verma, Advocate for the appellants.

                                *****

H.S. MADAAN, J. (Oral)

Briefly stated facts of the case are that plaintiff M/s Thola

Gamdu Coop. L & C Society Ltd. Matindu, Sonipat had brought a suit

against Municipal Corporation, Faridabad through its Commissioner

and Executive Engineer, Municipal Corporation, Faridabad seeking a

declaration that letter dated 22.04.2014 vide which a penalty of 10% of

allotted amount of work i.e. Rs.41,04,600/- under Clause-II and

decision of Corporation to forfeit the security amount are illegal,

arbitrary liable to be set aside, besides craving for grant of permanent

injunction restraining the defendants from recovering the said amount

from the plaintiff and from forfeiting the security amount deposited by

the plaintiff. As per version of the plaintiff, defendant No.1 had allotted

construction work of water drain from Bodh Vihar Chowk to Hitkari

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Chowk, NIT Faridabad to plaintiff society after accepting its tender.

The work order had been issued by the defendants, vide letter dated

12.11.2010 and the entire cost of work was fixed as Rs.5,09,30,943/-

which was liable to be extended as per work done at site subject to

approval from the State Government. However, the attitude of

defendant Corporation and its employees was non-cooperative

inasmuch as the plaintiff was not given design of water drain till

03.11.2011 despite various requests, therefore, work could not start. It

took 3 ½ months for defendants to issue the design. The plaintiff had

taken up the matter with officials of defendants in that regard, vide

letter dated 08.03.2011, requesting for extension of time limit from

21.01.2011 to 31.03.2012.

According to the plaintiff, it could not complete the work

due to non finalization of layout of drainage for want of shifting of

transformer poles, water pipelines and delayed payment etc. The

plaintiff kept on making representations to officials of defendants but

no proper and appropriate response was given and delay in completion

of work was solely on account of the sluggish and slow response of

officials of defendants. No ground was there to impose any penalty

upon the plaintiff when defendants refused to withdraw the impugned

notice and threatened to forfeit security amount deposited by the

plaintiff with them. Feeling aggrieved, the plaintiff brought the suit in

question.

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2. On notice, the defendants appeared and filed joint written

statement, contesting the suit, raising various preliminary objections,

contending that the plaintiff lacked locus standi to file the suit because

it had failed to execute the alleged work within the stipulated period,

therefore, the penalty was imposed upon it as per terms & conditions of

the contract. The plaintiff itself being a wrong doer is estopped from

filing the suit. According to the defendants, full cooperation was

extended to the plaintiff and designs were supplied within time. All the

hurdles pointed out by the plaintiff in the construction were got

removed. Even time for completion of contract was extended, however,

progress of the work was not upto the satisfaction despite various

letters having been written to the plaintiff. Only 20% of the work was

completed in one year, therefore, penalty was rightly imposed upon the

plaintiff as per rules adopting proper procedure. Refuting the remaining

assertions, the defendants prayed for dismissal of the suit.

3. From the pleadings of the parties, following issues were

framed:-

1. Whether the plaintiff is entitled to get a decree of declaration against the defendants as prayed for? OPP.

2. Whether the plaintiff is entitled to get decree of permanent injunction against the defendants as prayed for? OPP.

3. Whether the suit is not maintainable due to law of estoppal? OPD

4. Whether the plaintiff has violated the terms of agreement? OPD

5. Relief.

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4. Parties were afforded adequate opportunities to lead

evidence in support of their respective claims. During the course of

evidence of plaintiff, Sh. Pradeep, its authorized representative

appeared as PW1 and submitted his affidavit Ex.PW1/A in which he

has made assertions in tune of the case of the plaintiff as given in the

plaint. The plaintiff relied upon various documents, whereas, during

the course of evidence of defendants, Sh. Sumer Singh, JE got his

statement recorded as DW1 and repeated on oath the version of

defendants as given in the written statement. The defendants also

proved in evidence several documents.

5. After hearing arguments, the trial Court of Civil Judge (Jr.

Divn.) Faridabad, vide judgment and decree dated 15.09.2018 decreed

the suit of the plaintiff with costs, declaring that the impugned letter

dated 22.04.2014 levying penalty of 10% of amount of contract i.e.

Rs.41,04,600/- under Clause II issued by the defendant Corporation is

null and void and is not binding upon the plaintiff, therefore, the

defendants were restrained from recovery the amount of penalty as

well as forfeiting the security amount in any manner.

6. Feeling aggrieved by the judgment and decree passed by

the trial Court, the defendants had preferred an appeal before District

Judge, Faridabad. The appeal was assigned to Addl. District Judge,

Faridabad, who vide judgment and decree dated 27.10.2021, dismissed

the same.

7. Still feeling aggrieved, the defendants have knocked at the

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door of this Court by way of filing the present Regular Second Appeal.

8. I have heard learned counsel for the appellant/defendants

besides going through the record and I find that there is no merit in the

appeal. Here both the Courts below i.e. trial Court of Civil Judge (Jr.

Divn.) Faridabad and Ist Appellate Court of Addl. District Judge,

Faridabad have returned concurrent findings that the delay in execution

of the work by the plaintiff was not deliberate but on account of the act

and conduct of officials of defendants inasmuch as they had not

provided the requisite drawings to the plaintiff within time and had not

got the site cleared for smooth completion of project. The progress in

the drain work could not be done due to non finalization and non

removal of hurdles of crossing of water pipeline to alignment of drain,

electric poles and constructed house in alignment of drains. The

transformer and electric poles coming in between layout of drainage

were also got removed quite belatedly. In that way, the

problems/hurdles pointed out by the plaintiff in various letters written

to officials of defendants were not sorted out at the earliest. Therefore,

the burden for non completion of work in time could not be shifted

upon the plaintiff.

9. The Courts below have analyzed the evidence adduced by

the parties in a very minute and detailed manner, finding that there was

no justification for the defendant corporation to impose any penalty

upon the plaintiff or threatening to forfeit the security deposited by the

plaintiff with Municipal Corporation, Faridabad. Therefore, the relief

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of declaration and permanent injunction as prayed for by the plaintiff

was granted to it.

I find that the judgments passed by the Courts below are

quite detailed, well reasoned, based upon proper appraisal of evidence

and correct interpretation of law. No illegality or infirmity therein is

found to be there. There is no ground to interfere with the impugned

judgments and decrees by exercising the power in Regular Second

Appeal. No substantial question of law arises in this appeal. The appeal

is found to be without merit and is dismissed accordingly.

17.01.2023                                          (H.S. MADAAN)
sumit.k                                                 JUDGE


             Whether speaking/reasoned :      Yes          No
             Whether Reportable :             Yes          No




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