Full Text
Date of Decision: 30th September, 2019 CS(COMM) No.1000/2018
UNIVERSAL CONTRACTORS & ENGINEERS (P) LTD. .... Plaintiff
Through: Mr. Raghav Mehdirath, Adv.
CONSTRUCTIONS CORPORATION LTD. …...Defendant
Through: Mr. Rajat Arora & Vishalakshi Singh, Advs.
JUDGMENT
1. This suit for recovery of Rs.4,91,99,187.71 paise, post completion of pleadings, is ripe for framing of issues. The counsel for the defendant however contends that the suit claim, on the basis of averments in the plaint and documents filed by the defendant and admitted by the plaintiff, is barred by time.
2. The counsels have been heard on the said aspect.
3. The plaintiff has instituted this suit, pleading that (i) the defendant, on 27th December, 2011 floated a tender inviting bids for execution of the work of “Construction of Permanent Building – Package-1: Academic Block (Institute of Tribal Science & Arts) for Indira Gandhi National Tribal University (IGNTU) at Amarkantak”;
(ii) the plaintiff offered technical as well as price bid for the aforesaid works, and the plaintiff was awarded the execution of the said works vide Agreement dated 28th May, 2012; (iii) in terms of the Agreement, the work had to be executed by the plaintiff within the period of 15 2019:DHC:6457 months commencing from 8th April, 2012; however the contract envisaged and contained provisions and procedure for extension of time in case the work was not completed within the stipulated time framework; (iv) since the work was prolonged for no fault attributable to the plaintiff, the time for execution of the work was extended upto 31st May, 2015 and the work executed by the plaintiff accepted without levy of compensation under the contract; (v) in terms of the Agreement, the defendant had undertaken to liquidate the bills generated by the plaintiff in respect of the quantities every month, after verification; (vi) after execution of contract, the defendant “unilaterally opted to make variation in item 10.2, which had invariable increased the cost component of the plaintiff to accommodate the aforesaid variation in the specification of the said item, for which various formal and informal interactions were made by the functionaries of the plaintiff with the key functionaries of the defendant, however, finding no conducive and positive response from the defendant, the plaintiff was constrained to assert the aforesaid claim in writing displaying its financial constraints in execution of the aforesaid item with variation, as proposed by the defendant post execution of contract”; (vii) the plaintiff, vide its letter dated 15th April, 2013 explained justification for its claim for variation / extra execution of work and on which financial implications to the tune of Rs.7.90 crores were valued by the functionaries of the defendant and forwarded to the High Power Technical Committee of IGNTU, which was the principal employer / beneficiary of the work, to seek its concurrence for the said expenditure; (viii) however till final execution of the work and its acceptance to the satisfaction of the defendant, the defendant failed in taking a final decision on the aforesaid claim of the plaintiff; (ix) the plaintiff mobilized all its resources to site and had been making endeavours to achieve completion of work within stipulated time frame but owing to poor coordination and lack of proper planning at the end of the defendant, the work was inordinately delayed and completion was finally recorded on 31st May, 2015; (x) the notice inviting tender required the bidders to acquaint themselves with the site condition before offering the bid; during the said site inspection the plaintiff noticed that works earlier carried out on the site comprised of an “I” section that was partially bolted and welded; the plaintiff thus quoted rates for executing the said item in the manner being executed at site; the drawings furnished with the bid document also showed the execution of the said item as “I” Section; however after allocation of the work vide contract aforesaid, the defendant unilaterally altered the design specifications and directed the plaintiff to execute the same from “I” to “Box” Sections; (xi) the same had adverse implications on the pocket of the plaintiff; (xii) any variation in design, drawing or Bill of Quantities was payable in terms as envisaged in the agreement executed between the parties; (xiii) in addition to the said variation, the construction drawings furnished to the plaintiff were totally different from the tender drawings and caused variation in sundry items; (xiv) to achieve completion of the work, the plaintiff had to incur additional costs and of which the defendant was apprised; (xv) the various variations which occurred on account of revision in the items, in addition to what was required in terms of original Bill of Quantities, were as under:
I. In earlier ongoing project the connection details had been executed using simple bolting system where as in our scope of work in our project, the connection details were changed as both Bolting and Welding.”;
(xvi) on persuasion of the plaintiff, the defendant agreed and approved the claim of the plaintiff; (xvii) however since the said work was being got executed by the defendant as deposit work of IGNTU, the defendant recommended revision with financial implications to the tune of Rs.7.90 crores on account of variations and suggested to the
(xviii) though the plaintiff was not under any obligations to receive acceptance from IGNTU, as the work was awarded by the defendant to the plaintiff, but on request of the defendant, the plaintiff agreed to wait for decision of High Power Technical Committee of IGNTU;
(xix) the bill for the work executed by the plaintiff was finalized and paid on 31st July, 2016; however the decision as to the proposed revisions as recommended by the defendant was kept in abeyance. Though the defendant vide its letter dated 3rd September, 2015 to the the High Power Technical Committee, but the defendant did not take any follow up action; and, (xx) the plaintiff was entitled for the payment on variation in the quantities of the aforesaid items in terms of rates analyzed by the plaintiff and the plaintiff is entitled to assert the claim for the aforesaid amount along with interest at 11.5% per annum, which comes out to Rs.4,91,99,187.71 paise, the details of which are furnished in Schedule A to the plaint. Though the plaint as aforesaid refers to Schedule A to the plaint, but no Schedule A is found, neither in Part-I file nor in Part-II file nor any reference thereto is found neither in the main index to the suit nor in Part-IIIA file. Thus, it is not known, out of the suit claim of Rs.4,91,99,187.71 paise, how much is towards the principal amount and how much is towards the interest thereon at 11.5% per annum and from which date.
4. Notice may also be taken of the title given by the plaintiff to the suit, which reads as under: “SUIT FOR RECOVERY OF RS.4,91,99,187.71/- (RUPEES FOUR CRORES NINETY ONE LAKHS NINETY NINE THOUSAND AND ONE HUNDRED EIGHTY SEVEN ONLY)
ARISING FROM CLAIMS FOR LOSS SUFFERED ON ACCOUNT OF BREACH OF CONTRACT EXECUTED BETWEEN THE PARTIES IN RESPECT OF WORK FOR CONSTRUCTION OF PERMANENT BUILDING FOR INDRA GANDHI NATIONAL TRIBAL UNIVERSITY AT AMARKANTAK.
PACKAGE 1; ACADEMIC BLOCK. (INSTITUTE OF TRIBAL SCIENCES AND ARTS)
AWARDED VIDE CONTRACT AGREEMENT NO.799470/IGNTU-MP/PKG.-1/248 DATED 28.05.2012” The aforesaid title is inconsistent with the claim in the suit as narrated above. While from reading of the plaint, the claim is found to be for works in excess of the contracted works, carried out by the plaintiff at the asking of the defendant, but as per the title, the suit is for recovery of compensation for breach of contract. There is no plea of any breach in the body of the plaint.
5. The suit, filed without any application for interim relief, came up before the Joint Registrar first on 10th July, 2018 and without noticing the aforesaid incongruities / inconsistencies in the plaint, the suit was entertained and notice thereof ordered to be issued and pleadings completed as aforesaid.
6. The defendant has contested the suit pleading, that (i) the plaintiff is guilty of suppression of true and correct facts; the plaintiff has concealed that the plaintiff, vide its letters dated 30th September, 2015 and 5th October, 2015, while requesting the defendant to issue Completion Certificate, clearly mentioned that there was no dispute as on that date; (ii) in pursuance to the aforesaid letters, Completion Certificate dated 4th May, 2016 was issued to the plaintiff by the defendant; it is evident from the Competition Certificate that there was no dispute as the plaintiff itself had requested for Completion Certificate and admitted that there was no dispute of any regard; (iii) the entire payment has been made by the defendant to the plaintiff and the defendant has also returned the bank guarantee and security deposit to the plaintiff after the completion of the work order; (iv) vide letter dated 28th July, 2016, the plaintiff submitted its final running account bill for the work, amounting to Rs.1,13,32,628/-, which was the plaintiff signed the payment sheet which again clearly shows that the plaintiff had no dispute / claim with regard to the payments; (v) the plaintiff has filed the present suit after almost two years of receiving full and final payment, and concealing the true facts; (vi) the plaintiff is an experience contractor and not new to construction contracts and knew that the drawings in the tender documents were only reference drawings and not good for construction drawings, which are issued at the time of commencement of the work; (vii) the payment for works or supplies is made on work or supplies actually measured; the final bill raised by the plaintiff included the bill for extra items which has been paid to the plaintiff; and, (viii) in spite of delay in completion of work by the plaintiff, no damages or penalty was imposed by the defendant and instead extension was granted by the defendant for smooth construction of the building. Else, the defendant has specifically denied each and every averment in the plaint including the averment of the defendant, vide its letter dated 3rd September, 2015 having assessed the financial implication at Rs.7.90 crores or having written to the Registrar of IGNTU to refer the claim to the High Power Technical Committee.
7. The plaintiff in its replication to the written statement of the defendant though has not disputed having written letters dated 30th September, 2015 and 5th October, 2015 but has denied that the plaintiff in the said letters clearly admitted that there was no dispute. Similarly, the plaintiff has not disputed that it raised a final bill of Rs.1,13,32,628/- on the defendant and received payment thereof, but has pleaded that it was only qua the work done, which did not include the claim in respect of additional costs borne by the plaintiff consequent to the variation in terms of Item No.10.[2] of the Bill of Quantities.
8. The counsel for the defendant has argued, that (a) the plaintiff in the plaint has admitted the date of completion of the works undertaken by the plaintiff in pursuance to the agreement with the defendant as 31st May, 2015; (b) that the present suit has been filed in July, 2018 i.e. after more than three years of the completion of the work; (c) the defendant, at page 4 of its documents in Part-III(B) file, has produced a copy of the letter dated 30th September, 2015 of the plaintiff to the defendant as under: “Date: 30.09.2015 To, The Project Manager, NPCC Ltd.
IGNTU Project, Amarkantak M.P. Sub:- Construction of Academic building (Tribal Arts & Science) at IGNTU, Amarkantak Regarding issue of completion certificate Ref. No.: Work Order No.799470/IGNTU-MP/PKG.-I/248 Dated 28.05.2012 Dear Sir, It is requested to you, please issue completion certificate for Academic Building (Tribal Arts & Science) for participating tender, as per enclosed Performa. We have no any dispute as on date. Thanking you Your faithfully Sd/- For, M/s Universal Contractor and Engineers (P) Ltd.”;
(d) the plaintiff, during admission / denial of documents, has admitted the said document and Ex.D-1 has been put thereon; (e) the defendant at page 5 of its documents in Part-III(B) file, has also produced the letter dated 5th October, 2015 sent by the plaintiff to the defendant as under: “Date: 05.10.2015 To, The Project Manager, NPCC Ltd.
IGNTU Project, Amarkantak M.P. Sub:- Construction of Academic building (Tribal Arts & Science) at Regarding issue of completion certificate Ref. No.: Work Order No.799470/IGNTU-MP/PKG.-I/248 Dated 28.05.2012 Dear Sir, It is requested to you, please issue completion certificate for Academic Building (Tribal Arts & Science) for participating tender, as per enclosed Performa. No any dispute as on date. Your faithfully Sd/- For, M/s Universal Contractor and Engineers (P) Ltd.”; (f) the said document also has been admitted by the plaintiff in admission / denial of documents and Ex.D-2 has been put thereon; (g) the defendant, at page 6 of its documents in Part-III(B) file has produced the letter dated 14th October, 2015 written by the plaintiff to the defendant as under: “Ref: UCE/NPCC-01/2015-IGNTU Date: 14th Oct, 2015 To The Project Manager NPCC Ltd.
IGNTU Site Amarkantak M.P. Sub: Construction of Academic building - Regarding release of security deposit. Work order No.799470/IGNTU-MP/PKG.-I/248 Dated 28-05-2012 Dear Sir, With reference to the subject cited above, it is intimated that Construction of Academic Building bas been completed in all respect and entire building has been handed over to IGNTU authorities and being used for the intended purpose since beginning of the academic session 2015 and w.e.f. 1/6/2015. It is submitted that as per the clause 11 Security Deposit of the work order “after successful completion of work, 50% of the security deposit can be released against bank guarantee from any nationalized bank as per the approved format.” The BG will be submitted at ZM office directly after the vetting of the approved format. We therefore request your good offices to release the 50% security deposit against bank guarantee as we are facing financial crises. Yours faithfully Sd/- (N.D. Sharma) Director / Signatory Universal Contractor and Engineers (P) Ltd.”; (h) the said document has also been admitted by the plaintiff in admission / denial of documents and Ex.D-3 has been put thereon; (i) the defendant, at page 7 of its documents in Part-III(B) file has produced the letter dated 14th December, 2015 written by the plaintiff to the defendant as under: “Date – 14/12/2015 To NPCC Limited Anoopur (M.P.) Sub:- Issue of experience certificate for construction of Academic block. Sir, With reference to above cited we need work experience certificate for participating tender. So, we request to you please issue work experience certificate. Sd/- ”; (j) the said document has also been admitted by the plaintiff in admission / denial of documents and Ex.D-4 has been put thereon; (k) the defendant, at page 8 of its documents in Part-III(B) file has also produced the letter dated 21st January, 2016 written by the plaintiff to the defendant as under: “Ref: UCE/NPCC-01/2016-IGNTU Date: 21st Jan, 2016 To NPCC Ltd.
IGNTU Site Amarkantak M.P. Sub:- Construction of Academic Building - Regarding release of security deposit against Bank Guarantee. Dear Sir, With reference to the subject cited above, it is intimated that we have submitted the bank guarantee at NPCC Raipur office on 7-01-2016 for the release the 50% security deposit. The bank on the request of NPCC have confirmed the issuance of BG vide their letter (copy enclosed) Annexure- II(1). We therefore request your good offices to issue the MB for early release of security deposit. Sd/- (N.D. Sharma) Director Universal Contractor and Engineers (P) Ltd.”;
(l) the said document has also been admitted by the plaintiff in admission / denial of documents and Ex.D-5 has been put thereon; (m) attention is next invited to page 21 of Part-III(B) file, being the final bill dated 29th July, 2016 raised by the plaintiff on the defendant in the sum of Rs.1,16,51,231/-; (n) though the plaintiff in the plaint has claimed variation in the works, but not pleaded any particulars of how the variation was effected and on which date; (o) Clause 3.01 and 3.[2] of the General Conditions of Contract forming part of the agreement between the parties, provides as under: “3.0 SCOPE OF WORK
3.01 The scope of work covered in this tender shall be as per the Bill of Quantities, specifications, drawings, instructions, orders issued to the contractor from time to time during the work. The drawings for this work, which may be referred for tendering, provide general idea only about the work to be performed under the scope of this contract. These may not be the final drawings and may not indicate the full range of the work under the scope of this contract. Drawings released as “GOOD FOR CONSTRUCTION” from time to time by the Engineer-in-charge of NPCC and according be executed according to any additions / modifications / alterations / deletions made from time to time, as required by any other drawings that would be issued to the contractor progressively during execution of work. It shall be the responsibility of the contractor to incorporate the changes that may be in this scope of work, envisaged at the time of tendering and as actually required to be executed. 3.[2] The quantities of various items as entered in the “BILL OF QUANTITIES” are indicative only and may vary depending upon the actual requirement. The contractor shall be bound to carry out and complete the stipulated work irrespective of the variation in individual items specified in the bill of quantities.”; (p) thus, the plaintiff cannot claim any works to be extra on accounts of the drawings appended to the tender document; (q) Clause 37.[3] of the aforesaid General Conditions of Contract also provides that the plaintiff would become entitled to payment only after the defendant has received the corresponding payment from the client / owner and any delay in release of payment by the client / owner to the defendant, leading to delay in release of corresponding payment by the defendant to the plaintiff, shall not entitle the plaintiff to any compensation / interest from the defendant; and, (r) the tender, in pursuance to which agreement was signed by the parties, in Volume-II thereof under the head “Schedule of Quantities – Civil Works”, under the sub-head “Steel Work”, at Item No.7.05, provides “Structural steel work riveted, bolted or welded in built up sections, trusses and framed work, including cutting, hoisting, fixing in position and applying a priming coat of approved steel primer all complete” and thus the plaintiff is not entitled to claim any payment for extra work with respect to “Box” Section.
9. Per contra, the counsel for the plaintiff has contended that, (i) the claim of the plaintiff in the suit is for extra works and not with respect to works done under the Agreement and of which payment has been received; (ii) Clause 69 of the aforesaid General Conditions of Contract between the parties titled Alteration in Specification, Design and Drawing in Sub-clause 69.[1] thereof, provides as under: “69.[1] The Engineer-in-Charge shall have power to make any alterations in, omissions from, additions to or substitutions for, the original specifications, drawings, designs and instructions that may appear to him to be necessary during the progress of the work, and the contractor shall carry out the work in accordance with any instructions which may be given to him in writing signed by the Engineer-in-Charge and such alternations, omissions, additions, or substitutions shall not invalidate the contract and any altered, additional or substituted work which the contractor may be directed to do in the manner above specified as part of the work shall be carried out by the contractor on the same conditions in all respects on which he agreed to do the main work. The time for the completion of the work shall be extended in the proportion that the altered, additional or substituted work bears to the original contract work, and the certificate of the Engineer-in-Charge shall be conclusive as to such proportion. Over and above this, a further period to the extent of 25 percent of such extension shall be allowed to the contractor. The rates for such additional, altered or substituted work under this clause shall be worked out in accordance with the following provisions in their respective order: i) The rates for the additional, altered or substituted work are specified in the contract for the work, the contractor is bound to carry out the additional, altered or substituted work at the same rates as are specified in the contract for the work. ii) If the rates for the additional, altered or substituted work are not specifically provided in the contract for the work, the rates will be derived from the rates for a nearest similar item of work as are specified in the contract for the work. In case of composite tenders where two or more schedule of quantities / bill of quantities form part of the contract, the rates shall be derived from the nearest similar item in the schedule of quantities / bill of quantities of the particular part of work in which the deviation is involved failing that from the lowest of the nearest similar item in other schedule of quantity. The opinion of the Engineer-in-Charge as to whether or not the rate can be reasonably so derived from the item in this contract will be final and binding on the contractor. iii) If the altered, additional or substituted work includes any work for which no rate is specified in the contract for the work and which cannot be derived in the manner specified in sub para (i) and
(ii) from the similar class of work in the contract then such work shall be carried out at the rates entered in the Schedule of rates (DSR-2007 including cost index considered in tender) plus the percentage above or below to the quoted rates. iv) If the rates for the altered, additional or substituted work cannot be determined in the manner specified in sub-clauses (i) to
(iii) above, then the contractor shall, within 7 days of the date of receipt of order to carry out the work, inform the Engineer-in-Charge of the rate which it is his intention to charge for such class of work, supported by analysis of the rate or rates claimed, and the Engineerin-Charge shall determine the rate or rates on the basis of prevailing market rates of the material, Labour, T&P etc. plus 10% (Ten percent) to cover the contractors supervision, overheads and profit and pay the contractor accordingly. The opinion of the Engineer-in- Charge as to the current market rates of materials and quantum of labour involved per unit of measurements will be final and binding on the contractor. However, the Engineer-in-Charge, by notice in writing, will be at liberty to cancel his order to carry out such class of work and arrange to carry it out in such manner as he may consider advisable. But under no circumstances, the contractor shall suspend the work on the plea of non-settlement of rates of items falling under the clause.”; and, (iii) the plaintiff, at page 48 of its documents in Part-III(A) file, has produced the copy of the letter dated 3rd September, 2015 written by the defendant to the Registrar, IGNTU with reference to the MOU dated 28th February, 2011 between IGNTU and the defendant, inter alia stating as under: “After the work was started the agencies have approached us stating that there is variation in one of the item mentioned in the BOQ namely item no.10.[2] “Structural steel work riveted, bolted or welded in built up sections, trusses and framed work, including cutting, hoisting, fixing in position and applying a priming coat of approved steel primer all complete.” and as per the construction drawing received there was a change in scope of work. They have also stated that there is a difference between tender drawing and good for construction drawing regarding the item 10.2. They have asked us for the revision of rates. Then we referred the case to University Architect vide mail 18th February 2013 asking for the clarification and he has stated that rate revision is not required (copy of mail enclosed). Accordingly, we have intimated the agencies that this cannot be considered for rate revision, however, once again the agencies has approached our corporate office asking for the rate revision item no.10.2, in this regard our engineering section including our Corporate Office has opined that this case is fit for rate revision since the executed item for structural work is different than available item in contract agreement i.e. item no.10.2. Afterwards the agencies were repeatedly asking us for revision of rates and threatened to stop the work saying that they are incurring huge loss on this account for which we intimated them to continue the work and assured that we will refer the matter to a high power technical committee to look into the merits of the case. The approximate financial implication if rates are revised is as follows.
1. Construction of Academic building (Tribal Art & Science): Rs.2.70 Crores.
2. Construction of Administrative building: Rs.2.50 Crores
3. Construction of Permanent hostel building Girls: Rs.2.70 Crores Total: Rs.7.90 Crores However, it is suggested that the matter may be referred to high power technical committee so that they can give a decision regarding the claim of the agency, whether structural steel item executed for the above buildings are covered under DSR item No.10.[2] or to be considered as an extra item. Hence, we request you to do the needful at the earliest since we have to finalize the contract.”
10. I have considered the rival contentions.
11. I may at the outset state that the counsel for the defendant is not correct in contending that the suit was filed in July, 2018. Though the suit came up first before the Joint Registrar on 10th July, 2018 but the suit is found to have been filed first on 30th May, 2018 and thereafter re-filed on 2nd July, 2018 and 7th July, 2018. Thus the suit has been filed on the last day of the third year from the date of completion of the works i.e. 31st May, 2015.
12. Though the plaintiff in the title of the plaint has described the suit as for recovery of compensation for breach of contract but from the body of the plaint and the arguments, it is not in dispute that the suit is for recovery of price of extra works claimed to have been done by the plaintiff for the defendant in pursuance to the agreement dated 28th May, 2012 between the parties. The counsel for the plaintiff contends the said extra works to have been got done under Clause 69 supra of the General Conditions of Contract executed between the parties. However for the said clause to become applicable, the plaintiff has to plead and show instructions in writing issued to the plaintiff by the Engineer-in-Charge of the project, under his signatures, to make alterations, additions or substitutions vis-a-vis the original specifications, drawings, designs and instructions. Needless to state, the plaintiff has not pleaded any such instructions, which as per Clause 69.[1] supra, are necessarily required to be in writing signed by the Engineer-in-Charge. Had there been any such instructions in writing, the plaintiff would not only have pleaded the same, but also produced the same along with its plaint and which has not been done. In fact, the plaint glosses over the requirement of such instructions to be in writing, and the plaintiff has not pleaded any explanation for the same being not in writing.
13. Clause 69.[1] supra also provides for proportionate extension of time for completion of such instructions for alternations, additions or substitutions. The plaintiff, though has pleaded extension of time, but has not pleaded the said extension to be proportionate to the additions, alternations, substitutions required. Rather, it is plea of the plaintiff that the extension was on account of delays of the defendant in liquidating the running bills from time to time of the plaintiff and for other reasons attributable to the defendant. Merely because the time for completion was extended without levying any penalty on the plaintiff, cannot necessarily raise an inference of the same being on account of additions, alterations or substitutions required by the defendant. Clause 69.[1] also requires a certificate of the Engineer-in- Charge as to the proportionate extension. No such certificate has been pleaded or filed.
14. As per Clause 69.1(i) and (ii), the rates for additions, alterations, substitutions if any were to be worked out at the same rate as specified in the contract for the work, or if the additional, altered or substituted work was not specifically provided in the contract, the rates therefor were to be derived from the rates for nearest similar item of work as specified in the contract for the works. Clause 69(iii) and
(iv) further provides that if the rates for the altered, additional or substituted work cannot be derived in the manner specified in subclause (i) and (ii), then the aforesaid rates has to be determined on the basis of the Delhi Schedule of Rates, 2007 and if that is also not possible, then the Engineer-in-Charge himself shall determine the rates on the basis of prevailing market rates. The plaintiff, nowhere in the plaint has pleaded under which provision of Clause 69.[1] the cost of the additional, altered or substituted work was computed. The only inference is that neither any instructions for any additional, alteration or substituted work was issued, nor did plaintiff have any occasion to ask for in writing any confirmation thereof, or to have the rate thereof determined from the Engineer-in-Charge as provided under Clause 69.[1] (i) to (iv) aforesaid. It is significant that Clause 69.[1] supra also provides for the Engineer-in-Charge to, by writing, cancel the additions, alterations or substitutions asked for, on non-settlement of rates. It is thus evident that Clause 69 envisaged a settlement of rates to be arrived at with respect to any additional, altered or substituted work.
15. A reading of Clause 69 also shows that the costs of the additional, altered or substituted work was required to be billed by the plaintiff from time to time when such works were carried out. The plaintiff does not claim to have raised any such bills. The only explanation given therefor is that the defendant, vide its letter dated 3rd September, 2015 to the Registrar of IGNTU has asked for the matter to be referred to the High Power Technical Committee.
16. The plaintiff, in the plaint has portrayed as if the defendant in its letter dated 3rd September, 2015 was satisfied with the additional work and the value thereof claimed by the plaintiff. However, though the plaintiff claims that the defendant had assessed the value thereof at Rs.7.90 crores, but the plaintiff itself in the plaint is not claiming the said amount and is claiming a sum of Rs.4,91,99,187.71 only and out of which also, it is not known how much is the principal amount claimed and how much is the pre-suit interest. There is no explanation whatsoever in this regard.
17. Further, a reading of the letter dated 3rd September, 2015, made out to be the fulcrum of the case of the plaintiff, does not show that the defendant had approved of or was satisfied of the claim of the plaintiff for additional work. Rather, in the letter dated 3rd September, 2015, the defendant has carefully acted as the messenger of the claim of the plaintiff to IGNTU. A reading of the letter dated 3rd September, 2015, material part whereof has been reproduced above, shows that the said claim of the plaintiff was rejected by the University Architect as far back as in the year 2013. The suit filed on 30th May, 2018 is after more than three years therefrom. Else, the defendant vide the said letter merely suggested to the Registrar of the University to refer the claim of the plaintiff to a High Powered Technical Committee.
18. It cannot be lost sight of that the plaintiff has instituted the suit as a commercial suit, and under Order XIII-A of the CPC as applicable to such suits, the Court is entitled to summarily dismiss the suit if finds no real prospect of the plaintiff succeeding in the suit. Such suits, which on the basis of pleadings and undisputed documents are deadwood and which no amount of evidence can bring to life, are not to necessarily go through the rigmarole of trial. Once the plaintiff has made out a claim for additional/varied work carried out for the defendant, the plaintiff, to be able to claim for such additional work under the contract, is required to plead the case in terms of the contract and if is not found to have done so, is liable to be non-suited forthwith. Reference in this regard may also be made to B.S.N. Joshi and Sons Ltd. Vs. Nair Coal Services Ltd. (2006) 11 SCC 548, holding, in the context of tender contracts, that if there are essential conditions, the same must be adhered to, and in the absence of a power of general relaxation, principle of strict compliance will be applied where it is possible for the parties to comply with the conditions fully.
19. Be that as it may, the main thrust of the counsel for the defendant, and with which an application under Order VII Rule 11 of the CPC is also claimed to have been filed though not listed, is of the plaintiff having unequivocally and repeatedly represented that it had no disputes with the defendant, and having concealed the said fact.
20. Merit is found in the said contention also. Had any claims of the plaintiff with respect to additional work done in pursuance to the contract been pending consideration with the High Powered Technical Committee, the plaintiff in its letters dated 30th September, 2015 and 5th October, 2015 reproduced above would not have stated that there was no disputes as on that date. The plaintiff itself in the plaint claims to have formally justified its claim for the additional work vide letter dated 15th April, 2013. If the said claims were pending, there was indeed a dispute on 30th September, 2015 and 5th October, 2015 when the letters aforesaid were penned by the plaintiff. It is significant that the plaintiff did not mention the said letters in the plaint, and even after the defendant pleaded the same accusing the plaintiff of suppression, it is not the plea of the plaintiff that the plaintiff was forced or coerced into writing the said letters to have its admitted dues, bank guarantee and security released from the defendant. In the absence of any such plea of the plaintiff, there is no reason to not bind the plaintiff to its unequivocal statement of having no dispute with the defendant.
21. The plaintiff, after having approbated so, cannot be permitted to reprobate and raise a dispute. The plaintiff, even if had any claim for additional works against the defendant, was well within its right to give up the said claim and in its letters aforesaid is found to have given up the said claim.
22. Supreme Court, in National Insurance Co. Ltd Vs. BogharaPolyfab Pvt. Ltd. (2009) 1 SCC 267, has held that when a contract has been fully performed, there is a discharge of the contract by performance, and the contract comes to an end; in regard to such a discharged contract, no right to seek performance nor any obligation to perform, remains; in short, there cannot be any dispute. It was further held that when both parties to a contract confirm in writing that the contract has been fully and finally discharged by performance of all obligations and that there are no outstanding claim or disputes, courts will not refer any subsequent claim or dispute to arbitration; similarly, where one of the parties confirms that he has received the payment in full and final satisfaction of all claims, and he has no outstanding claim, that amounts to discharge of the contract by acceptance of performance and the party confirming such discharge cannot thereafter make any fresh claim or revive any settled claim. In Union of India Vs. Master Construction Co. (2011) 12 SCC 349, the Supreme Court, after taking note of the dicta in National Insurance Co. Ltd.supra, added that where a party claims that a discharge voucher or no-claim certificate has been obtained by fraud, coercion, duress or undue influence, then the Court may look into such claim to see whether the dispute is bona fide or genuine. However, it was also held that such plea of fraud, coercion, duress or undue influence cannot be merely a bald plea, and if such plea is found to be an afterthought, make believe or lacking in credibility, then the Court must lay the matter to rest there and then. In ONGC Mangalore Petrochemicals Ltd. Vs. ANS Constructions Ltd. (2018) 3 SCC 373, where also in the facts of the case the contractee had requested a Completion Certificate and which was issued by the Contractor, the Supreme Court held that the contractee cannot take a plea of coercion and duress and claim for losses incurred during execution of contract at a belated stage, after accepting the final payment in full and final satisfaction of all its claims. The Court further held that there is no point raising the claim for losses incurred during the execution of the contract at a belated stage, which creates an iota of doubt as to why such claim was not settled at the time of submitting final bills.
23. In the present case, as aforesaid, the plaintiff has at no point pleaded that the letters dated 30th September, 2015 or 5th October, 2015, asking the defendant to issue a Completion Certificate and claiming that there is no dispute as on that date, were sent under fraud, coercion, duress or undue influence. In fact, vide letters dated 14th October, 2015 and 21st January, 2016, the plaintiff asked the defendant to release 50% of the security deposit of the work order, and which as per Clause 10 of the General Conditions of Contract between the parties could be released only after completion of work. Vide letter dated 28th April, 2016 also, the plaintiff asked the defendant for refund of its performance guarantee as the work had been “completed satisfactorily and handed over to the concerned authority”.
24. In light of the aforesaid also, the plaintiff now, after three years of the work being completed, and almost two years after the Completion Certificate was provided by the defendant and the final bill was drawn up and paid, cannot claim that there were unpaid dues of the defendant.
25. Merit is thus found in the contention of the counsel for the defendant that there is no need to frame issues and put the suit to trial, when the plaintiff on the basis of pleadings and admitted documents is not found to have any real prospect of success in the suit.
26. The suit is thus dismissed with costs to the defendant; professional fee is assessed at Rs.1.50 lacs. Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J. NOVEMBER 28, 2019 SEPTEMBER 30, 2019 „gsr‟..