M/S ATTAR SINGH & BROTHERS v. DELHI DEVELOPMENT AUTHORITY

1. For the reasons stated in the application, delay in re-filing the restoration application is condoned. I.A. is disposed of. I.As. 9215/2018 (for restoration) & 9216/2018 (delay in filing) in CS (OS) 2540/2008

2. The present applications have been filed seeking restoration of the present suit, which was dismissed on 10th November, 2016 and seeking condonation of delay in filing of the application. Applications were preferred on 7th May, 2018. A perusal of the application shows that there are no reasons given whatsoever as to why a delay of such long period i.e. 499 days is to be condoned. The only reasons, that have been captured in the paragraphs 2 & 3 of the application, are set out herein below: 2018:DHC:7972

The contents of these two paragraphs do not satisfy the basic requirements for condonation of delay. The delay is, thus, not liable to be condoned.

3. In any event, this Court has also examined the merits of the case. The award of the work order to the contractor, dates back to 14th October, 1982. The admitted case of the contractor is that the date of completion of the work order was 25th April, 1985. The demand for release of payment of Rs.25 lakhs was raised by the contractor with the DDA on 28th January,

1987. The arbitration clause was invoked on 27th February, 1992. By applying clause 7, the learned Arbitrator, vide his award dated 29th July, 2011, has held that as the Contractor did not choose to invoke the arbitration clause from 1987 to 1992, the claims are barred by limitation. Accordingly, the Contractor’s claims were rejected.

4. The submission of Mr. Sandeep Sharma, learned counsel for Plaintiff/Contractor is that the final bill was prepared by the DDA only on 15th December, 1992 after arbitration was invoked. Thus, the claims are not barred by limitation. He relies on Inder Singh Rekhi v. Delhi Development Authority, AIR 1988 SC 1007 to argue that the preparation of the final bill itself gives rise to cause of action to the Contractor.

5. It is noted that this is the second round of arbitration, which has taken place between the parties. In the first round, the learned Sole Arbitrator had rejected the claims of the Contractor on 8th May, 2008. Vide order dated 30th November, 2010, this Court had set aside the award and fresh arbitration proceedings had been commenced. The award impugned in the present petition is the award passed in the second round of arbitration on 29th July, 2011. The suit was dismissed on 10th November, 2016 for nonprosecution. The learned Arbitrator has, after analysing the various dates, held that between the year 1987 to 1992, the Contractor did not raise the claims and as per the clause, the Contractor could not wait for more than six months for seeking payment. Clause 7 reads as under: “Clause 7 No payment shall be made for a work estimated to cost rupees five thousand or less till after the whole of the work shall have been completed and certificate of completion given. But in the case of work estimated to cost more than Rs. Five thousand, the contractor shall, on submitting the bill be entitled to receive a monthly payment proportionate to the part thereof then executed to the satisfaction of the Engineer-in-Charge, whose certificate of the sum so payable shall be final and conclusive against the contractor. But all such intermediate payments shall be regarded as payment by way of advance against the final payment only and not as payments for work actually done and completed, and shall not preclude the requiring of bad, unsound and imperfect or unskilled work to be removed and take away and reconstructed, or re-erected or be considered as an admission of the due performance of the contract, or any part thereof, in any respect or the accruing of any claims, nor shall it conclude, determine, or affect in any way the powers of the Engineer-in-Charge under these conditions or any of them as to the final settlement and adjustment of the accounts or otherwise or in any other way vary or affect the contract. The final bill shall be submitted by the contractor within one month of the date fixed for completion of the work or of the date of the certificate of completion furnished by the Engineer-in-Charge and payment shall be made within three months if the amount of the contract plus that of additional items is upto Rs.[2] lacks and in 6 months, if the same exceeds Rs.[2] lakhs of the submission of such bill. If there shall be any dispute about any items of the work then the undisputed item or items only shall be paid within the said period of three months or six months or as the case may be. The contractor shall submit a list of the disputed items within thirty days from the disallowance thereof and if he fails to do this, his claim shall be deemed to have been fully waived and absolutely extinguished. Wherever there is likely to be delay in recording detailed measurements for marking payments in the case of residential building, advance payments without detailed measurements for works done (other than foundations and finishing items) upto (a) lintel level (including sun shade etc.) and (b) slab level, for each floor, worked out at 75% of the tendered rates may be made in running account bills by the Engineer-in- Charge in his discretion on the basis of certificate from the Assistant Engineer to the effect that the work has been completed upto the level in question. The advance payments so allowed shall be adjusted in the subsequent running bill by taking detailed measurements thereof. Final payment shall be made only on the basis of detailed measurements.”

6. A perusal of Clause 7 shows that the final bill has to be submitted by the Contractor within one month of the date of completion of work or the date of certificate of completion furnished by Engineer-in-Charge. The said clause is not qualified with the term `whichever is earlier’ or `whichever is later’. Thus, the cause of action arises at least insofar the Contractor is concerned, arises when the work was completed i.e., on 25th April 1985. The claim is raised for the first time on 28th January, 1987. If the payment is not made within a period of six months, the Contractor has no option but to raise the claims within three years from the expiry of six months. The Contractor cannot say that he would wait endlessly for the DDA to finalise the final bill and then raise the claims. Delay by the DDA in finalizing the final bill would not increase or give the benefit to the Contractor to delay the raising of his claims. The DDA’s reliance on Bindra Builders v. Delhi Development Authority, 192 (2012) DLT 565 is apt. In the said case, a learned Single Judge of this Court held as under:

7. Decree, already passed making the award rule of the Court is, thus, upheld and is not liable to be set aside. Both the applications for restoration and condonation of delay are dismissed. Objections filed by the Contractor have also been considered on merits and do not deserve to be entertained.

PRATHIBA M. SINGH JUDGE DECEMBER 18, 2018