R K ANEJA Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This is an application by the plaintiff under Order 39 Rules 1 & 2 Civil Procedure Code for issue of ad interim injunction restraining the defendants from withholding retraining the amounts having become due to the plaintiff in respect of the work executed under the agreement No. 12 & 13/EE/E.D.I./83-84 by the plaintiff or which may become due to the plaintiff under any other contract or agreement awarded to the plaintiff by the defendants.

(2.) Brief facts which led to the present application are as under: That the plaintiff is an Electrical Engineer.(hereinafter referred to as 'applicant'). He is duly registered with the defendant for 'A' Class contracts. The applicant was awarded a work by the defendant for the internal electric installation at Bhikaji Cama Bhawan, R.K-Puram District Centre vide their letter dated 5.10.84. The applicant commenced the work with effect from 6.10.84. The parties to the present application entered into an agreement No. 14/EE/E./D. 111/A/84-85 in respect of the aforesaid work. It was agreed upon in between the parties that both the parties shall be bound by the Terms & Conditions contained in the tender form and the conditions of the contract attached to the agreement. As per Clause 2 of the Contract, the time allowed for carrying out the work was to be the essence of the contract and the applicant was to belliable for penalty at the rate stipulated therein in the event of delay to commence the work or to finish the work by proper dates. Clause 3 of the Conditions provided that in case of delay or breach of the Terms & Conditions by the applicant the defendant would be entitled to terminate the contract and to forfeit the security deposit and get the remaining work completed at the risk and cost of the contractor. Clauses 29 and 30 empower the defendant to withhold the security deposit or any sum or money due to applicant under the said contract or any other contract. Progress of the construction was very slow from the very beginning and therefore the work of the electric installation could not be carried out as per the time schedule envisaged in Clause 2 of the Conditions. The Contractor who was constructing the building suspended the work from February, 1986 onwards on account of certain disputes in between him and the defendant and the site as such could not be handed over to the applicant to carry out electric installation. The above dispute could only be resolved in June, 1987 much after the expiry of the date for the completion of the contract. The execution of the work awarded to the applicant was entirely dependent upon the completion of the construction. No electric installation could have been done till the site was handed over to him. Hence no allegation of delay or negligence could be attributed to the applicant. The applicant later on agreed to resume the work vide his letter dated 19.6.87 in response to the letter dated 12.6.87. The applicant during the course of the work demanded the payment in accordance with the terms and conditions of the contract from the defendant but they refused to release the payment on one pretext or the other. The applicant brought this fact to the notice of the Chief Engineer who directed the officers to release the payment with regard to the work completed by the applicant. He further directed the supply of the requisite material to the applicant in order to enable him to complete the work. The said orders were not complaidwith the applicant again complained to the Chief Engineer on 20.3.89 and 30.3.89 that neither the payments were released for the work completed nor material was supplied for further work. The Chief Engineer thereupon covened a meeting on 4.4.89. It was towards the end of the said meeting that the Executive Engineer informed the Chief Engineer that the agreement awarded to the applicant had been rescinded vide his letter dated 31.3.89.

(3.) The applicant was served with a show cause notice under Clause 2 of the Conditions of Contract on 27.4.89 as to why the penalty be not levied on him for the delay and negligence committed by him in execution of the contract. The said notice is illegal and invalid as the action under Clause 2 can be taken during the subsistence of the contract only and not after termination of the same. Clauses 2 and 3 of the conditions of the contract are mutually exclusive of each other. The applicant cannot be penalised more than once for the same breach. The applicant replied to the letter dated 27.4.89 through his letter dated 10.5.89 wherethrough he informes the defendant that the work could not be completed on account of non co-operation by the officials of the D.D.A. The applicant again received a letter from the Superintending Engineer on 25.10.90 for a sum of Rs. l,34,729.00 as compensation under Clause 2 of the Conditions of the Contract for the alleged delay and default on his Contract for the alleged delay and default on his part. Pursuant to the letter dated 25.10.90, the applicant received another letter dated 17.11.90 from the Executive Engineer threatening action underclause 29of the agreement for the failure of the applicant to deposit the alleged sum of Rs. l,34,729.00 .