LAWS(DLH)-2012-3-185

K R BUILDERS PVT LTD Vs. DDA

Decided On March 19, 2012
K.R.BUILDERS PVT. LTD. Appellant
V/S
DDA Respondents

JUDGEMENT

(1.) WE are concerned in the instant appeal with the correctness of the judgment and decree dated September 28, 2007, disposing of CS(OS) No.142/2003 filed by the appellant; not in full, but only in relation to items of claim at serial No.(e), (h), (i) and (n) of para 11 of the amended plaint, which have been rejected by the learned Single Judge. WE highlight that the claims decreed by the learned Single Judge have not been challenged by DDA and not all claims rejected have been questioned in the instant appeal.

(2.) CLAIM vide para 11(e) in sum of Rs. 1,38,245/- pertains to the grills affixed by the appellant and the factual setting of the claim is that the contract required, vide item No.6.6 of the description of items, to provide and fix MS grills of required pattern fabricated with MS flat square or round bar, and the claim of the appellant is that this description conforms to ordinary grills. The appellant claims that when the drawing was furnished to it the same pertained to an ornamental grill and hence the differential claim over and above the item rate, as per the contract, which has been paid for. The claim as per para 11(h) of the plaint in sum of Rs. 43,504.10 pertains to amount not paid in terms of clause-10(cc) of the contract and to understand the claim it needs to be highlighted that the appellant had, vide para 11(g), a claim in sum of Rs. 80,795.45 alleging that this amount was wrongly withheld notwithstanding the appellant having rectified the defective works on account of which the said sum was deducted from the running bills. The claim in para 11(h) pertained to the material and labour escalation pertaining to the said work i.e. the work carried out towards rectification of the defects. CLAIM vide para 11(i) was with respect to clause-10(cc) of the contract and was not that no money was paid under clause- 10(cc) nor was the dispute pertaining to the quantum of work executed each quarter or the relevant index or indices applied, but was to the manner in which the clause had to be interpreted and applied. CLAIM vide para 11(n) was on account of damages due to work being prolonged by about 48 months, over and above the 18 months contract stipulated time; damages were claimed on account of idle establishment, idle tools, plant and machinery at site. Rs. 7,20,000/- has been claimed under this head.

(3.) IT was urged by learned counsel for the appellant that in response to appellants pleading in para 11(e) of the plaint, in the written statement filed, the respondent had not denied that the grill affixed was ornamental and thus no evidence was led, except for the witness to state that the grill was ornamental.