Jai Singh vs Delhi Development Authority (Dda)

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 08.07.2026
Judgment pronounced on: 28.10.2026

+ CS(OS) 457/2000
JAI SINGH .....Plaintiff

Through: Mr. Mandeep Singh Vinaik, Mr.
S.K. Sagar, Ms. Ragini Vinaik, Ms.
Hridyaa Singh, Advs.
versus

DELHI DEVELOPMENT AUTHORITY (DDA) .....Defendant

Through: Ms. Shobhana Takiar, Standing
Counsel, Mr. Shivam Takiar, Mr.
Prateek Dhir, Mr. Kuljeet Singh,
Advs.
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH

J U D G M E N T

1. By way of this suit the plaintiff is seeking recovery of Rs.
2,28,68,176/- (Rupees Two Crores, Twenty Eight Lakhs, Sixty Eight
Thousand, One Hundred and Seventy Six), along with interest
pendente lite and future interest till actual payment, in addition to the
costs of the suit. The prayer of the suit as mentioned in the plaint reads
as under:
―It is therefore, most respectfully prayed that this Hon’ble
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Court may be pleased to pass a money decree, in favour of
the plaintiff, and against the defendant, directing the
defendant to pay to the plaintiff a sum of Rs. 2,28,68,176/-
(Rupees Two Crores, Twenty Eight Lakhs. Sixty Eight
Thousand. One Hundred and Seventy Six Only), along with
interest pendente lite and future interest, payable till the
date of actual payment. The costs of the suit may also be
awarded in favour of the plaintiff.‖
FACTUAL MATRIX AS PER THE PLAINTIFF
2. The plaintiff, Mr. Jai Singh, is a construction contractor undertaking
the business of construction in the name and style of his sole
proprietorship concern by the name of J.S. Constructions.
3. The defendant i.e., Delhi Development Authority (“DDA”) , invited
tenders for the construction of 1174 MIG, 210 LIG, and 623 EWS
houses at Kondli, Gharoli, Phase II, sub head construction of 176 MIG
Houses including internal development group IX.
4. The plaintiff submitted his tender offer, which was accepted vide letter
dated 15.02.1992 and the parties entered into an agreement bearing
No. 47/EE/ED-492-93 (“Agreement”) , which was later transferred to
the contractual jurisdiction of Executive Engineer, Eastern No. 7 and
renumbered as Agreement No. 07/EE/ED-7/93-94, and ultimately
transferred to Executive Engineer, Eastern Division No. 4.
5. As per the terms and conditions, it was decided that the work was to
be completed within a period of 18 months scheduled to commence
from 25.12.1992 and to be completed by 24.06.1994.
6. Due to certain breaches alleged to be attributable to the defendant, the
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work could not be completed as per the fixed schedule timeline and it
was completed only on 22.02.1997, i.e., after a delay of about 32
months.
7. Consequently, the defendant issued a completion certificate under
Clause 6 of the Agreement and also granted extension of time
(“EOT”) up to 22.02.1997 without levy of any compensation under
Clause 2 of the Agreement, and also released compensation up to the
date of final completion of work in terms of Clause 10CC of the
Agreement.
8. The plaintiff by way of this suit claims further compensation under
Clause 10CC as the compensation released in his favour was
inadequate particularly when the delay was entirely attributable to the
defendant.
9. The record of all the hindrances aggregating to 649 days was
submitted by the plaintiff to the defendant along with the application
dated 12.05.1997 seeking EOT.
10. The aforesaid position with respect to delayed performance was
admitted by the Executive Engineer of defendant in his letter dated
15.05.1997, wherein he recommended grant of EOT to the
Superintendent Engineer without levy of any compensation in terms
of Clause 2 of the Agreement. The same was accordingly allowed by
the Superintendent Engineer vide letter dated 23.05.1997.
11. Subsequently, after repeated requests to the Executive Engineer
(DDA) for payment of the plaintiff‟s final bill, the plaintiff, on
20.08.1997 raised a final bill with respect to the undisputed items of
work. The said bill was misplaced, and a copy of the bill was again
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furnished on 23.01.1999, which was again submitted afresh to the
Executive Engineer on 10.03.1999 after rectifying the typographical
errors.
12. The said bill was not even acknowledged by the defendant. Hence, by
way of present suit, the plaintiff seeks a principal sum of Rs.
1,57,71,156/- along with interest.
13. The defendant has filed its written statement wherein the defendant
vehemently opposed the present suit and also raised preliminary
objections qua maintainability of the suit. The stand of the defendant
is unequivocal and clear that nothing as claimed in the plaint, is due
and payable to the plaintiff.
14. Based on the pleadings and the documents, this Court vide its Order
dated 24.07.2007, framed the following issues for adjudication of the
matter by this Court:
―1. Whether the suit is barred under Section 53B of the
Delhi Development Act? OPD
2. Whether the Court fees affixed on the suit by the plaintiff
is deficient? OPD
3. Whether the plaintiff is entitled for the amount claimed in
the suit or any other amounts? OPP
4. Relief.‖
15. Initially, the Issue No. 1 was directed to be heard as a preliminary
issue but vide Order dated 15.07.2011, it was agreed between the
parties that the said issue may be decided along with other issues.
EVIDENCE
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SRIVASTAVA
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16. The parties led their evidence by way of affidavits, wherein the
plaintiff examined the following witnesses:
A. Mr. Jai Singh (PW1), the plaintiff, is a construction contractor
running his business under the name and style of his sole
proprietorship concern namely, J.S. Construction. He tendered his
evidence by way of an affidavit exhibited as Ex. PW1/A.
B. Mr. Gaurav Dagar (PW2), son of the plaintiff, who assisted the
plaintiff in conduct of his business also tendered his evidence by
way of an affidavit exhibited as Ex. PW2/A.
17. The defendant examined sole witness namely, Mr. M.K. Gupta
(DW1), who was posted as an Assistant Engineer with the defendant
and he tendered his evidence by way of affidavit exhibited as Ex.
DW1/A.
18. The parties have proved and exhibited the documents as described in
„Form A‟ annexed to this judgment.
SUBMISSIONS ON BEHALF OF THE PLAINTIFF
ISSUE NO. 1: Whether the suit is barred under Section 53B of the
Delhi Development Act? OPD
19. Mr. Vinaik, learned counsel for the plaintiff, in response to the
preliminary objection raised by the defendant has argued that on
14.03.2011, this Court directed the plaintiff to place on record original
notice dated 28.08.1999 (Ex. PW1/89) to prove the fulfilment of the
requirement laid down under Section 53B of the Delhi Development
Act, 1957 (“the Act”) and also directed the Director of DDA to furnish
an affidavit stating whether the notice was received or not.
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20. Pursuant thereto, the notice was exhibited as Exhibit PW1/89 with
concurrence of both the parties as recorded in the Order dated
11.09.2015.
21. He further states that pursuant thereto in the affidavit dated 14.03.2011,
the receipt of the notice dated 28.08.1999 was admitted by the
defendant but an alternate ground was raised qua the cause of action
namely, that it arose when the first final bill was raised, i.e., in the year
1997.

22. It is further stated that Section 53B of the Act is analogous to the
provision contained in Section 80 of the CPC, 1908, wherein it is laid
down that a prior two-month notice setting out the complete cause of
action needs to be served on DDA before filing of the suit and the suit
must be filed within 6 months of the said notice.
23. The plaintiff has acted in strict compliance with the provision of
Section 53B of the Act as not only the notice dated 28.08.1999
explicitly disclosed the cause of action and claim, but also the suit was
preferred within 6 months of the date of notice (filed on 21.02.2000).
Even though the plaint was returned by the registry due to deficiency in
the court fees, it was recorded in the objection sheet that the suit was
filed on 21.02.2000.
24. Mr. Vinaik, learned counsel, also states that the cause of action in terms
of Section 53B of the Act arose after expiry of two months of the notice
having been served and the demand remaining unpaid i.e., the two
month period expired by the end of October 1999, thereby giving the
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plaintiff time till end of April 2000 for filing of the present suit.
1
Reliance is placed on Fresh Assets Ltd. v. DDA .
25. He also places reliance on the judgment of Mayurdwaj Coop. Group
2
Housing Society Ltd. v. DDA , to state that express mention of
provision of Section 53B in the notice is not a sine qua non for filing a
suit against DDA, once all the ingredients of the provision stand
satisfied, the provision is deemed to be complied with.
26. He further states that in the present factual matrix, the three years
limitation period as per the Limitation Act, 1963, (“Limitation Act”) is
applicable to the suit and not the special period of limitation under
Section 53B of the Act which has to be strictly construed and should be
attracted only in cases where the defendant is under statutory obligation
i.e., the act complained of was done pursuant to the statutory
requirement or was done by virtue of a contract which was entered into
in compliance of the powers conferred by the Act. Reliance is placed
3
on Durga Chand Kaushish v. Union of India , and Deluxe Estates v.
4
DDA .
27. The defendant has erroneously pleaded that the date of final bill was
the date of commencement of cause of action as the cause of action
accrues when the final demand is made and not from the final bill.
Even if the stand of defendant is accepted that the final bill was dated
March 1999, the suit was still filed within limitation.

1
2015 SCC OnLine Del 11245.
2
2010 SCC OnLine Del 4409.
3
1971 SCC OnLine Del 158.
4
2003 SCC OnLine Del 497.
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SRIVASTAVA
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ISSUE NO. 2: Whether the Court fees affixed on the suit by the
plaintiff is deficient? OPD
28. Mr. Vinaik, learned counsel, has argued that the suit was initially filed
on 21.02.2000, returned under objection and was refiled on 24.02.2000.
Due to certain defects, it was ultimately refiled on 03.03.2000 by
making the payment of the requisite court fee as computed by the
Registry to the tune of Rs. 2,25,555.20/- on ad valorem basis.
ISSUE NO. 3: Whether the plaintiff is entitled for the amount
claimed in the suit or any other amounts? OPP
29. At the outset, learned counsel for the plaintiff, states that the facts that
after completion of work on 22.02.1997, the EOT was granted and
payment on account of escalation under Clause 10 CC of the
Agreement was released, and that the additional items assigned to the
plaintiff were duly performed remain uncontested. Also, the fact that
DDA had to release the final bill within 6 months and the contents of
the final bill remain uncontested.
Claim No. 1: Payment of final bill of Rs. 41,77,809/- in respect of
items of work done.
30. The final bill dated 20.08.1997 was raised within 6 months of
completion of the work and the covering letter of the said bill
containing an endorsement of receipt by the representative of the
defendant is duly placed on record.
31. The claim made by way of the said final bill remained unrefuted by the
defendant, in effect, establishing the said Claim.
32. Since copy of the bill dated 20.08.1997 got misplaced, another copy
dated 23.01.1999 was sent by the plaintiff and owing to certain
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typographical errors in the same, a new bill dated 10.03.1999
(Exhibited as Ex. PW1/85) was submitted to the defendant.
33. It is further argued that the averment qua final bill was clearly made in
paragraph No. 9 of the plaint which was not answered by the defendant
clearly indicating if the final bill was ever paid. The defendant has only
raised a defence that the submitted bill was not a final bill. Thus, the
same stands admitted and cannot be disputed.
34. The stand of defendant with regard to the final bill is self-contradictory
as for the purpose of calculating limitation, the defendant describes it as
final bill but at the same time for the purpose of payment, they treat it
as an abstract. However, the factum of final bill stands admitted by the
affidavit dated 20.04.2011 filed by the EE of defendant in compliance
of the Order of this Court dated 14.03.2011.
35. Additionally, no question with regards to the date of final bill was
posed to the PW1 during his cross examination by the counsel for the
defendant.
36. Mr. M.K. Gupta, Assistant Engineer of the defendant, in his evidence
by way of affidavit (Ex. DW1/A), has not denied the fact of hindrances
and has ignored the issue of delay in work. He has only briefly stated
that some work was left out and had to be awarded to another agency
for performance.
37. DW1 in his affidavit has failed to state any amount that has been paid
towards the final bill. It only contains a statement to the effect that
nothing is payable, while at the same time admitting that the
completion certificate was granted.
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SRIVASTAVA
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38. Thus, in the light of the aforesaid, the only conclusion possible is that
the final bill is pending and outstanding.
Claim No. 2: Release of bank guarantee of Rs. 3 lakhs and incidental
expenses of Rs. 40,000/.
39. Mr. Vinaik has argued that having proved beyond reasonable doubt that
the defendant was in breach of its obligations, the encashment of bank
guarantee is also illegal. The fact that no Counterclaim is preferred by
the defendant establishes the fact that defendant is having no claim
against the plaintiff.
Claim No. 3: Cost of work done beyond the stipulated date of
completion @ 20 percent extra over the tendered rates. Rs. 48,98,553/.
40. The work was completed with a delay of 32 months, solely attributable
to the defendant‟s non-performance of its reciprocal promises namely,
failure in arranging timely supply of stipulated materials, delaying
structural designs, delay in payments for the executed work, and delay
in laying the electronic goods by agency of the defendant.
41. The aforesaid defaults resulted in idling of the centering and shuttering
material fixed along with compensation and costing of the RC, etc.
42. By way of Claim No. 3, the plaintiff is seeking compensation over and
above i.e., in addition to the compensation covered by the escalation
Clause 10CC or any other such provision for that matter, as the time
period for completion of work got extended by 32 months thereby
entailing approximate inflation of 20% as per the cost indices issued by
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CPWD. Reliance is placed on the judgment of this Court in G.D.
5
Tewari v. DDA.
43. It can be seen from a perusal of letter dated 31.03.1993 (Ex. PW1/4)
that the plaintiff informed the defendant about breaches of obligations
and vide letter dated 20.06.1994 (Ex. PW1/86) it was clearly stated that
the work could only be completed beyond time on payment of 20%
over and above the quoted rates.
44. In response to the said letter, the defendant replied vide letter dated
25.06.1994 (Ex. PW1/87 also as Ex. P7) wherein the Claim was not
refuted, and it was stated that the demand of the plaintiff would be
considered after decision on EOT. Thus, the Claim of the plaintiff is
entitled to be decreed.
Claim No. 4: Compensation for continued employment of staff,
machinery beyond the stipulated date of completion. Rs. 25,27,000/-.
45. He further states that deployment of staff for the execution of work as
per terms and conditions of the contract was necessary and the
deployment of employees calculated at the rate of Rs. 41,500/- per
month is 2.2% of the quantum of the work required to be executed in
18 months. Thus, the rate of 2.2% is justified in view of the incidental
charges incorporated in analysis of rates forming basis of schedule of
rates by CPWD and also supported by the textbook of GT Gajaria.
Additionally, for the reasons above, the defendant cannot take defence
of Clause 10CC.
Claim No. 5: Loss of profit due to prolongation of the contract. Rs.
4,56,802/-.

5
Judgment dated 02.05.1995 in Suit No. 2376/1993.
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46. It is also stated that as on the stipulated date of completion, work
valued at Rs. 1,90,33,415/- remained incomplete on expiry of 18
months due to defendant‟s defaults. This had the effect of depriving the
plaintiff of the profit he would have earned on this work within the
stipulated period. Thus, the plaintiff has computed this Claim of
interest on loss of profit calculated on staggered basis at half of 32
months (i.e., 16 months) worked out at the rate of 18% p.a.
Claim No. 6: Payment of compensation under clause 10CC of the
agreement.
47. It is submitted by the plaintiff that the defendant has erred in computing
the compensation. The defendant prepared bills for increase in material
and wage rate prevailing on the date of submission of the tender offer
for each quarter and also for the extended period.
48. The defendant did not include the correct amount as the rise in
subsequent quarters in the cost indices was not factored in, causing a
shortfall of Rs. 26,68,300/- in the compensation payable to the plaintiff
under Clause 10CC of the Agreement itself. Reliance is placed on
6
Anant Raj Agencies v. DDA .
Claim No. 7: Cost of work done beyond the scope of agreement but
not paid for.
49. Learned counsel for the plaintiff further submits that extra items of
work beyond the scope of the Agreement were executed at the specific
instance of the defendant and the same are payable in the following
manner as stated hereinbelow:
Cost of Extra Thickness of Plaster

6
2009 SCC OnLine Del 3248.
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50. In respect of item No. 7.4, base plaster of 15 MM was provided as
against 12 MM as per the items of work. Hence, this Claim for extra
thickness of plaster is to the tune of Rs. 20,980/- as per the applicable
Delhi Schedule Rates, 1989 (“DSR”) .
Centering and shuttering for DPC (Item No. 2.4)
51. He also states that Rs. 2123/- are payable towards Centering and
shuttering provided for laying DPC, as an extra item.
Cost of Yamuna Sand (Item No. 1.3)

52. It is also stated that Rs. 26,000/- (for 325 c.m. at Rs. 80/per c.m.) is
payable for providing Yamuna Sand, which was beyond the scope of
the Agreement.
Cost of providing SCI Collars
53. Further, an amount of Rs. 47,020/- (Rs. 28,793/- + 63.3%) is payable
towards 100 MM and 75 MM SCI collars at Rs. 47,020/- as per the
DSR.
Claim No. 8: Overweight Steel
54. The Claim qua supply of overweight steel stands proved as it was
recorded by the defendant‟s Executive Engineer, thereby attracting
compensation of Rs. 1,50,000/- for the excess steel charged. Reliance is
placed on Steel Weighment Register (exhibited as Ex. PW1/88).
Claim No. 9: Illegal Deductions for alleged deficiencies, Rs.
1,26,876/-
55. Learned counsel for the plaintiff submits that illegal deduction of Rs.
1,26,876/- was made by the Executive Engineer of the defendant
despite there being no deficiencies in the work executed as per
specifications and under the supervision of defendant.
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SRIVASTAVA
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Claim No. 10: Refund of illegal withholding. Rs. 3,29,693/-.
56. The learned counsel for the plaintiff also submits that the defendant has
wrongly withheld Rs. 3,29,693/- across ten R.A. bills, despite the work
being executed in terms of the Agreement and certificate to this effect
being recorded in these bills.
SUBMISSIONS ON BEHALF OF THE DEFENDANT
ISSUE NO. 1: Whether the suit is barred under Section 53B of the
Delhi Development Act? OPD

57. At the outset, Ms. Takiar, learned standing counsel for the defendant,
submits that Section 53B(2) of the Act prescribes a mandatory
limitation period for suits for recovery or other claims, providing a time
limit of 6 months from the date of accrual of cause of action.
58. The limitation is to be reckoned from accrual of the cause of action,
which the plaintiff claims to be on 22.02.1997 when defendant released
compensation under Clause 10CC, or, at the latest, 22.08.1997 when
the final bill was submitted by the plaintiff or even if it is considered to
be accruing from 23.01.1999 or 10.03.1999, the suit filed on
22.02.2000 is still barred by limitation.
59. It is also stated that as per the settled position, the limitation is to be
calculated from the date of cause of action which is tied to the date of
submission of final bill by the contractor or failure on part of the
defendant to pay the same. No further demand/reminders will
revive/renew the limitation period or stop the clock. Reliance in this
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7
regard is placed on MCD v. Gurbachan Singh , Shah Construction Co.
8 9
Ltd. v. MCD , and Satender Kumar v. MCD .
60. It is further stated that in view of the paragraph No. 6 and 16 of the
plaint it is clear that the date of actual completion as per the plaintiff is
22.02.1997 and the final bill was raised on 22.08.1997, which was to be
paid within two weeks and in case of non-payment, the suit could have
been filed within 6 months from the expiry of 2 months. Hence, the suit
filed on 22.02.2000 is beyond the limitation period prescribed under
Section 53B of the Act.
ISSUE NO. 3: Whether the plaintiff is entitled for the amount
claimed in the suit or any other amounts? OPP
General Submissions
61. Ms. Takiar, learned counsel, states that time was of the essence of the
subject Contract as the same provided for delays in its completion to be
treated as a fundamental breach and the plaintiff failed to perform its
obligations within the agreed timeframe despite repeated notices and
opportunities.
62. In accordance with the Contract between the parties, the defendant was
empowered to get the incomplete/deficient work completed/rectified at
the risk and cost of the plaintiff, and the same was done after following
due process and affording multiple opportunities to the plaintiff.
63. The cross-examination of the plaintiff reveals glaring inconsistencies of
the following nature in his stand:

7
2014 SCC OnLine Del 19.
8
1984 SCC OnLine Del 119.
9
2010 SCC OnLine Del 424.
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a. On 19.01.2015, the plaintiff admitted that he had not been
able to complete construction by 24.06.1994 and delay was
attributable to the defendant, and on the same page he
referred to the completion certificate and stated that he had
completed the construction but could not tell the specific
date.
b. The plaintiff acknowledged that there were
unfinished/defective work but also denied that the defendant
got the unfinished work performed by outside agency.
c. The plaintiff admitted that the site was handed over to him
as per the schedule (Pg. 237 of the paper book) and at the
same time stated that defendant has not handed over the site
in whole on time and free from encumbrances.
d. The plaintiff admitted that the payment towards extended
period had already been made to him but at the same time
stated that it is incorrect to suggest that the entire amount as
per Clause 10CC was paid.
e. It is stated by the plaintiff that he had taken the clearance
certificate from the labour office but also said that he never
brought the said document on record nor can he produce the
said clearance certificate.
Claim-wise Submissions
Claim No. 1: Payment of final bill of Rs. 41,77,809/- in respect of
items of work done.
64. It is stated by Ms. Takiar, learned counsel, that a copy of bill dated
23.01.1999 was received by the defendant but the same was not in the
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nature of a final bill or a bill as it was reflecting an abstract amount of a
sum of Rs. 29,57,349.70/- and Rs. 6,04,825.75/- on account of actual
work.
65. Further, on 10.03.1999, another abstract was submitted wherein the
amount was revised to Rs. 31,99,124/- and Rs. 6,04,825/- and now by
way of the present suit the plaintiff is seeking an amount of Rs.
9,87,680/- towards actual work, which is apparently contrary to the
initial stand taken by the plaintiff.

66. Since, it is clear that finalisation of bill is done on rectification of
defective work, there were defects in the work executed by the
plaintiff, which were assigned to outside agency for the purpose of
rectifications and the same was in his knowledge, hence, bill could
have been finalised only on completion of the work.
Claim No. 2: Release of bank guarantee of Rs. 3 lakhs and incidental
expenses of Rs. 40,000/.
67. She further states that the plaintiff has failed to submit the clearance
certificate issued by the labour officer, which was required for
release/refund of the bank guarantee in terms of Clause 46 of the
Agreement. Reliance is also placed on Clause Nos. 17B, 19G, 29 of the
Agreement.
Claim No. 3: Cost of work done beyond the stipulated date of
completion @ 20 percent extra over the tendered rates. Rs. 48,98,553/.
68. Qua this Claim, it is stated that as per Clause 12 of the Agreement extra
work could be executed and the compensation for the same was duly
paid by the defendant in terms of Clause 10CC. Hence, no other
amount is payable over and above the amount paid under Clause 10CC,
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SRIVASTAVA
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as payment made under this Clause was all inclusive comprehensive
payment.
69. The demand with respect to this amount was raised on 24.10.1996,
which was declined by the defendant on 16.11.1996 and the plaintiff
also declared in his application for EOT dated 12.05.1997 (Exhibit Ex.
P3) that it will not claim any amount extra due to the said delay.
70. Accordingly, the plaintiff cannot claim any expenses incurred for the
extra work which is performed beyond the stipulated completion date
unless the same was approved/condoned by the defendant in terms of
the contractual provisions. Reliance is placed on Section 55 of the
Indian Contract Act, 1872, (“Contract Act”) and also on the judgments
10 11
of DDA v. U. Kashyap , MCD v. Rakesh Bros.
Claim No. 4: Compensation for continued employment of staff,
machinery beyond the stipulated date of completion. Rs. 25,27,000/-.
71. She further submits that this Claim is merely a reiteration of Claim No.
3 and as per Section 55 of the Contract Act, the Contractor is not
entitled to any compensation for the continued employment of the staff
and machinery unless expressly allowed by the defendant. The amount
claimed has already been settled in terms of Clause 10CC and nothing
remained due.
72. The present Claim is an attempt to inflate the claims of the plaintiff as
the plaintiff also executed other works and his employees were also
working at other sites.

10
1998 SCC OnLine Del 762.
11
(2005) 120 DLT 186.
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73. Additionally, no extra expenses paid to the staff has been proved to be
working at the site and no evidence was led to this effect by the
plaintiff.
Claim No. 5: Loss of profit due to prolongation of the contract. Rs.
4,56,802/-.
74. The burden is on the plaintiff for not only proving the occurrence of
prolongation but also the quantum of loss of profit. There is no
evidence/document placed on record to indicate the quantum of loss.
Assuming even if there is any loss, the Court is also required to see
clear evidence to this effect that the loss is attributable to the
defendant‟s breach and not the plaintiff‟s own conduct.
75. Additionally, this Claim of the plaintiff is vague in its nature as there is
an ambiguity in the Claim with regards to whether the plaintiff wants to
claim loss of profit or interest on such loss of profit.
Claim No. 6: Payment of compensation under clause 10CC of the
agreement.
76. Clause 10CC is clear in its ambit, exhaustively covering the
scope/subject of price escalation and no other form of compensation for
delay or other reason is contemplated under the Agreement. It includes
the compensation for increase or decrease in the cost of materials and
labour during the contract period or during the extension, and excludes
the damages for other factors such as idling, loss of profit due to
prolongation, etc. Hence, Clause 10CC incorporates the entire remedy
available to the plaintiff under the Agreement.
Claim No. 7: Cost of work done beyond the scope of agreement but
not paid for.
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SRIVASTAVA
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77. Ms. Takiar with respect to this Claim states that the plaintiff submitted
multiple bills but omitted these items, hence, the Claim for these items
is just an afterthought.
78. None of the claims for extra work done is payable to the plaintiff as
Clause 10CC applies only on price escalation of material and labour
during the contract and approved extension period, and not on the
delays attributable to the plaintiff or prolongation claims beyond the
approved extension.
Cost of Extra Thickness of Plaster
79. She submits that no 15 MM base plaster was provided by the plaintiff
instead of 12 MM and the same is not payable in view of Clause Nos.
42(ii) and 3.1.5 of the Agreement.
Centering and shuttering for DPC (Item No. 2.4)
80. She also states that this work was executed as per the item of
Agreement and CPWD specifications. Hence, nothing more is payable.
Cost of Yamuna Sand (Item No. 1.3)
81. It is stated that this Claim for Yamuna sand is not payable because it is
outside the scope of the Agreement.
Cost of providing SCI Collars
82. It is also stated with respect to this Claim that the said amount has
already been paid under item No. 11.5 to 11.12 of the Agreement and
nothing more is payable. Reliance is also placed on Special Condition
No. 3.14 of the Agreement.
Claim 8: Overweight Steel
83. The Claim with respect to overweight steel is also an afterthought as
the plaintiff accepted 30 bills and the plaintiff never raised this issue in
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any of the bills. Moreover, it is covered under the permissible
variations allowed under Clause 42(iii) of the Agreement.
Claim No. 9: Illegal Deductions for alleged deficiencies, Rs.
1,26,876/-
84. The deductions for the deficiencies which is stated as illegal by the
plaintiff were made under the reduction item statement duly approved
by the SE, which was final and binding as per the provision contained
in Clause 25B of the Agreement.
Claim No. 10: Refund of illegal withholding, Rs. 3,29,693/-.
85. All the RA bills in which the amount was withheld were already
accepted by the plaintiff and the same were not disputed. The amount
shown as withheld for RA bills No. 20 and 30 stood already released in
favour of the plaintiff. The other amounts had been withheld in
accordance with the provisions of the Agreement and on account of
quality control observations and excess consumption of cement by the
plaintiff during the execution of the work. Hence, nothing is payable by
the defendant to the plaintiff with respect to this Claim.
ISSUE-WISE ANALYSIS AND FINDINGS
86. I have heard learned counsels for the parties and perused the
documents, evidence and material placed on record.
ISSUE NO. 1: Whether the suit is barred under Section 53B of the
Delhi Development Act? OPD
87. The preliminary issue raised by the defendant in the present case
concerns the special limitation period prescribed under Section 53B of
the Act for instituting suits against the defendant. At this stage it is
pertinent to refer to Section 53B of the Act, which reads as under:
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SRIVASTAVA
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―53B. Notice to be given of suits—
(1) No suit shall be instituted against the Authority, or any
member thereof, or any of its officers or other employees, or
any person acting under the directions of the Authority or
any member or any officer or other employee of the
Authority in respect of any act done or purporting to have
been done in pursuance of this Act or any rule or regulation
made thereunder until the expiration of two months after
notice in writing has been, in the case of the Authority, left
at its office, and in any other case, delivered to, or left at the
office or place of abode of, the person to be sued and unless
such notice states explicitly the cause of action, the nature
of relief sought, the amount of compensation claimed and
the name and place of residence of the intending plaintiff
and unless the plaint contains a statement that such notice
has been so left or delivered.
(2) No suit such as is described in sub-section (1) shall,
unless it is a suit for recovery of immovable property or for
a declaration of title thereto, be instituted after the expiry
of six months from the date on which the cause of action
arises.
(3) Nothing contained in sub-section (1) shall be deemed to
apply to a suit in which the only relief claimed is an
injunction of which the object would be defeated by the
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SRIVASTAVA
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giving of the notice or the postponement of the institution of
the suit.‖
88. From a conspectus of the aforesaid, it can be seen that Section 53B(1)
of the Act bars institution of a suit against the defendant until the
expiry of two months after service of notice in writing stating explicitly
the cause of action, the relief sought, and the amount of compensation
claimed. Section 53B(2) further provides that no such suit shall, save in
specified exceptions (not relevant here), be instituted after the expiry of
six months from the date on which the cause of action arose.
89. It is the preliminary objection raised by the defendant against the
maintainability of the suit that the limitation period for the filing of the
present suit reckoned from the date of release of compensation under
Clause 10CC (i.e., 22.02.1997) and resultantly the suit filed on
22.02.2000 is filed beyond the period of limitation prescribed under
Section 53B of the Act.
90. Defendant further, without prejudice to the aforesaid argument, states
that even if the date of submitting of final bill dated 20.08.1997 or its
corrected copies submitted on 23.01.1999 or 10.03.1999, is considered
as the date of accrual for cause of action, the suit is still barred by
limitation, as the maximum period of limitation in the present case
would be 8 months (2 months for notice + 6 months for filing of suit).
Even from the last date i.e., 10.03.1999, the suit filed on 22.02.2000 is
beyond the limitation of 8 months.

91. Per contra, the plaintiff has argued that the final bill was submitted on
20.08.1997, which was resubmitted on 10.03.1999 and later a demand
notice dated 28.08.1999 was addressed by the plaintiff to the defendant.
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SRIVASTAVA
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Thus, the two-month period for notice must be calculated from
28.08.1999 which expires on or about 27.10.1999 and, hence, on this
basis the suit filed on 21.02.2000 falls well within the period of
limitation permitted, which would only expire on 27.04.2000.
92. The plaintiff has also argued that the special limitation period as
prescribed under Section 53B of the Act must be strictly construed and
should only be attracted in cases where the dispute is regarding the
statutory obligation of the DDA under the Act itself or rule or
regulation made thereunder.
93. The law with respect to operation of special period of limitation
provided under Section 53B of the Act is no longer res integra and has
been time and again expounded by this Court. The same has been
recently explained by a Coordinate Bench of this Court in the judgment
12
of DDA v. Dr Fresh Assets Ltd. , and the relevant paragraphs of the
judgment read as under:
―29. For the better understanding, Section 53B DDA Act is
reproduced as under: …
30. Pertinently, the present suit is not one seeking
enforcement of any right created under the DDA Act. The
relief claimed by the Plaintiff is for interest on the earnest
money of Rs 63,12,500 received by the Appellant on 17-12-
2008, was retained by the Appellant for more than 04
years, and returned only on 29-1-2013 without any
interest.

12
2026 SCC OnLine Del 2376.
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SRIVASTAVA
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31. In Lucky Star Estates (India) Pvt. Ltd. v. Delhi
Development Authority in RFA(OS) 10/1987, this Court,
dealing with a similar challenge based on Section 53B,
held that a suit seeking damages/interest on the principal
amount/earnest money wrongfully retained by DDA, does
not ipso facto fall under the expression of “any act done or
purporting to have been done under this Act” so as to
attract the special 06 month limitation envisaged under
sub-section (2). It was observed that the DDA cannot take
refuge under Section 53B(2) DDA Act, to defeat
substantive contractual or restitutionary claims which are
otherwise, within the general limitation period, as per law.
32. Admittedly, an Application i.e. I.A. 24684/2014 in
CS(OS) 1936/2014, under Order VII Rule 11 CPC, was
earlier filed by the Appellant, raising the identical plea that
the suit was barred by Section 53B (2) of the DDA Act. By
the order dated 29-7-2015, this Court rejected the said
Application, holding that the suit for recovery of interest on
earnest money was not liable to be rejected on the ground of
Section 53B.
33. Therefore, learned trial court, rightly observed that the
suit was not barred by Section 53B of the DDA Act.‖
94. The aforesaid judgment of Dr. Fresh Assets (Supra) is also on the
same lines of reasoning as the judgment of Lucky Star Estates (Supra)
by the Hon‟ble Division Bench of this Court.
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SRIVASTAVA
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95. In this view of the matter, the issue of fact which is to be decided is that
whether the actions of the defendant can be said to be actions to have
been done under the Act or any rules or regulations framed thereunder.
96. The present suit filed for recovery of Rs. 2,28,68,176/- along with
interest is premised on non-payment of final bill, illegal withholding of
multiple amounts including towards work done beyond the completion
date, loss of profitability due to prolongation, and compensation
payable under 10CC on the ground of delay and other additional
grounds.
97. The plaintiff alleges non-performance of contractual obligations arising
from the Agreement dated 23.12.1992 by the DDA to the aforestated
amounts, the withholding/non-payment of the same cannot be said to
be falling within the scope and ambit of an action done under the Act or
any rules or regulations framed therein. It is entirely a matter of
contractual disputes between the parties and does not fall within the
statutory framework of the Act. Hence, section 53B of the Act will
have no application.
13
98. The judgment of MS Shoes East Ltd. v. DDA. relied upon by
defendant is distinguishable and operative paragraphs of the same read
as under:
―69. Delhi Development Authority v. H. Dohil Construction
Co. AIR 1984 Delhi 124 was a suit for specific performance
of contract to sell land and was held to be a suit essentially

13
2018 SCC OnLine Del 9074.
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SRIVASTAVA
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for recovery of immovable property and not within the
scope of Section 53B(2).
70. Ram Dulari v. Delhi Development Authority 1995 (34)
DRJ 129 was a suit for recovery of damages accruing from
the action of the DDA of demolishing the construction on
the property of the plaintiff. It was held that the act of
demolition is integrally connected with the duties of the
DDA and covered by Section 53B(2) of the Act.
71. Lucky Star Estates (India) Pvt. Ltd. v. The Delhi
Development Authority AIR 2004 Delhi 428 was a suit for
refund of earnest money with interest. The Single Judge
held the suit to be barred by limitation under Section
53B(2). However, the Division Bench in appeal found that
the cancellation of the bid was after one year and without
disclosing any reason, earnest money had been illegally
retained. In these facts, Section 53B(2) was held to be not
applicable. I may however notice that the Delhi
Development Authority (Disposal of Developed Nazul
Land) Rules, 1981 were not noticed and it was generally
observed that auctioning of nazul land was an act done
under a contract but not required by the DDA Act.
72. For the reason of the finding in Lucky Star Estates
(India) Pvt. Ltd. supra, of the DDA having acted illegally
and for the reason of the said judgment not noticing the
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Rules aforesaid, I am humbly of the opinion that the same
does not bind me.
73. Mayurdwaj Cooperative Group Housing Society
Ltd. v. Delhi Development Authority 2011 (121) DRJ
317 (RFA (OS) No. 0549/2011 preferred whereagainst was
dismissed on 19-12-2012) was a suit for refund of
composition fee collected by the DDA and finding that DDA
was not entitled to collect the composition fee, the suit was
held to be not within the ambit of Section 53B(2).
74. Fresh Assets Ltd. v. DDA was a suit for recovery of
interest on the earnest money deposited with the DDA and
which was returned by DDA on its own, on sale being
stayed by an order of another Court. The plaintiff claimed
interest for the period for which the said money had been
retained. With respect to the defence of Section 53B(2), it
was held relying on Lucky Star Estates (India) Pvt.
Ltd. supra that the facts of the subject case did not warrant
the restriction of the larger period of limitation prescribed
under the Limitation Act to be whittled down to the period
prescribed under Section 53B(2) of the Act.
75. As would be obvious, in Fresh Assets Ltd. supra there
was an admission of the DDA of the DDA being not entitled
to retain the earnest money and DDA on its own had
refunded the same but after some delay. It was in this light
held that the action of the DDA of retaining the monies was
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not an act done or purported to have been done in
pursuance of the Delhi Development Act or any rule or
regulation made thereunder and the said judgment has no
application to the facts of the present case.
76. I thus hold Section 53B(2) to be applicable and the
limitation available to the plaintiff being of six months only.
77. The suit having been filed beyond the said six months,
whether counted from 12-6-1995 or from 9-3-1996, is
palpably barred by time.‖
99. The aforesaid judgment of MS Shoes East Ltd. (Supra) is
distinguishable on facts from the present case as in that case not only
the copy of bid and tender issued by DDA inviting tenders had ―Delhi
Development Authority (Disposal of Developed Nazul Land) Rules,
1981‖ mentioned in the list of documents but also the allotment letter
was under the ―Delhi Development Authority (Disposal of Developed
Nazul Land) Rules, 1981‖. The same is not the case in the present suit
and my attention has not been drawn to any such fact or evidence.
100. In this view of the matter, the special limitation period prescribed under
Section 53B of the Act does not apply to the present suit and the suit
will be governed by the provisions of the Limitation Act, thereby the
limitation period of 3 years shall apply for institution of the present
suit.
101. Accordingly, the present suit filed on 21.02.2000 is within the
limitation period of 3 years.
Signed By:ANSH
SRIVASTAVA
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ISSUE NO. 2: Whether the Court fees affixed on the suit by the
plaintiff is deficient? OPD
102. After its refiling on 03.03.2000, the plaint filed bears an ad valorem
court fee of Rs. 2,25,555.20/- as computed and accepted by the
Registry. The defendant has neither placed any material before this
Court nor made any submission at the hearing stage to show that this
computation is erroneous or that any further court fee remains
outstanding. Thus, it is evident that the court fee affixed to the plaint by
the plaintiff is sufficient and the plaint does not suffer from any defect.
103. Accordingly, the issue No. 2 is decided in favour of the plaintiff.
ISSUE NO. 3: Whether the plaintiff is entitled for the amount
claimed in the suit or any other amounts? OPP
Claim No. 1: Payment of final bill of Rs. 41,77,809/- in respect of
items of work done.
104. The onus of proof for this Claim is on the plaintiff.
105. The Claim of the plaintiff with respect to the payment of final bill to
the tune of Rs. 41,77,809/- is premised on manifold arguments, which
can be crystallised in the following manner:
a. Firstly, the final bill submitted on 22.08.1997 was raised within
6 months of the completion of the work. This bill was
resubmitted on 10.03.1999 (Ex. PW1/85).
b. Secondly, the aforesaid covering letter submitted on 22.08.1997
contains an endorsement by representative of DDA
acknowledging the receipt of the final bill. The same remains
unrefuted by the DDA.
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SRIVASTAVA
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c. Thirdly, the averment contained in the plaint under paragraph
No. 9 of the plaint was not specifically answered by the
defendant to clarify whether the final bill or any of its part was
ever paid to the plaintiff.
d. It is admitted in the affidavit of EE (DDA) dated 20.04.2011
(submitted in compliance of Order of this Court dated
14.03.2011) that the bill submitted was a final bill and the
defendant has also treated the bill as final for the purpose of
raising the objection of limitation.
e. Mr. M.K. Gupta (DW1) in his evidence by way of an affidavit
(Ex. DW1/A) has only made an assertion that nothing is
payable while admitting that the completion certificate was
granted.
106. Per contra, the defendant in paragraph No. 9 of its Written Statement
has denied the factum of submission of bill by the plaintiff to the EE of
the defendant and stated that since, there were rectifications of defects
required in the incomplete work executed by the plaintiff, the same
were executed by another agency at the risk and cost of the plaintiff.
107. It is also argued in the defence qua this Claim that the defendant only
received an abstract (dated 23.01.1999) of the amount claimed by the
plaintiff and that was not in the nature of a bill. Another revised
abstract dated 10.03.1999 (Ex. PW1/85) claiming Rs. 31,99,124.01/-
and Rs. 6,04,825.75/- (for actual work done) was also submitted.
However, now by way of his plaint, the plaintiff is seeking Rs.
31,90,124/- (amount payable for undisputed work) and Rs. 9,87,680/-
(for actual work done) as against Rs. 6,04,825.75/- stated in the bill
Signed By:ANSH
SRIVASTAVA
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dated 10.03.1999 for actual work done, reflecting a contradictory
approach.
108. Additionally, it is the defence of the defendant that bill could only have
been finalised upon completion of work by the other agency to which
the rectification work to the tune of Rs. 7,14,003/- was awarded.
109. Mr. Jai Singh (PW1), plaintiff and proprietor of the plaintiff in
paragraph Nos. 9, 10 and 11(1) of his evidence by way of an affidavit
has deposed that on completion of work by the plaintiff, the defendant
was requested for payment of final bill but to no avail. Consequently, a
final bill was submitted on 22.08.1997, which was misplaced by the
Executive Engineer of DDA resulting in submission of another copy of
bill dated 23.01.1999, which was again resubmitted on 10.03.1999 (Ex.
PW1/85) on account of some typographical errors. Despite the final bill
already being submitted, the same has not been settled. The relevant
portions of his affidavit reads as under:
―9. That on completion of work, the plaintiff had been
requesting the Executive Engineer, DDA for payment of his
final bill, but after having exhausted his patience, the
nd
plaintiff submitted his final bill on 22 August, 1997 in
respect of undisputed items of work. The Executive Engineer
misplaced the said final bill and plaintiff submitted another
rd
copy of the bill on 23 January, 1999 after having been so
informed by the Executive Engineer. Since there were some
typing errors, the plaintiff prepared the final bill afresh and
th
submitted the same on 10 March, 1999 to the Executive
th
Engineer. The original of the Final Bill dated 10 March,
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SRIVASTAVA
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1999, along with covering letter of like date, was submitted
by me personally to the office of the Executive Engineer,
ED-7, DDA, at School Block, Shakarpur, Delhi. The said
bill and covering letter was received by the clerk on duty
and an entry was duly made in the diary maintained in the
said office. The concerned official of the DDA also initialled
a copy of the said letter and recorded receipt. The office
copy of the same is Exhibited and is marked Exhibit
PW1/85. I state that the final bill contains precise
measurements of the work done and the quantities worked
on.
10. The Executive Engineer of the defendant has taken no
action to settle my accounts so far. All personal efforts on
my part to have my grievances redressed having failed, I am
left with no recourse except to seek redressal through the
judicial process.
…
1. Payment of Final Bill of Rs.41,77,809/- in respect of
items of work done
The contract work was completed on 22.2.97 and in terms of
the contract between the parties, the final bill was payable
within 6 months from the date of completion i.e. upto
21.8.97. Even the DDA has failed to pay the final bill
submitted on 22.8.97 which was misplaced in the office of
the Executive Engineer and as such another copy of the
same was sent on 23.1.99. Since there were some typing
Signed By:ANSH
SRIVASTAVA
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errors, a fresh copy of the final bill was submitted to the
th
Executive Engineer on 10 March, 1999, but so far no
payment has been made. The amount payable in respect of
undisputed work is Rs.31,90,124.00 and another sum of Rs.
9,87,680.00 which is genuinely payable, but have not been
paid by DDA are also payable. Therefore, a total of
Rs.41,77,809.00 is payable in respect of the final bill for
work done by me.‖

110. During the cross-examination of Mr. Jai Singh (PW1), after perusal of
the record he stated that he did not submit the final bill dated
22.08.1997 and also stated that he had filed only one covering letter
dated 20.08.1997 and the same is not attached with a final bill, i.e., no
final bill is annexed along with the covering letter. While denying the
suggestion that he had given only one final bill dated 10.03.1999 (Ex.
PW1/85), he stated that it is correct that he has not placed on record
any final bill issued prior to 10.03.1999. The relevant portions of the
cross-examination recorded on 11.09.2015 read as under:
―I had submitted the final bill to the DDA. I cannot
recollect the exact date, but it was after completion of
the work and it was probably in the year 1996. I have
filed copy thereof on court file.
Witness is allowed to see the court record with
assistance of his counsel. After going through the court
record, the witness states that the said final bill is
already. Ex. PW1/85 along with covering letter dated
10/03/1999.
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SRIVASTAVA
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Court observation There is no date on the Final Bill.
It is incorrect to suggest that I have not given any Final
Bill prior to Ex. PW1/85. I can only tell after seeing the
record if I had not given any final bill to the defendant
on 22/08/1997.
After seeing the record, witness submits that he did not
submit any final bill dated 22/08/1997 and further
volunteers that he had filed one covering letter dated
20/08/1997 and there is no final bill along with that
covering letter. It is incorrect to suggest that I have
given only one final bill to the defendant which is dated
10/03/1999. It is correct that I have not filed any final
bill on court file prior to 10/03/1999.‖
111. In view of the admission made by PW1 in his cross-examination, it is
clear that there is no evidence placed on record to show submission of
final bill on part of the plaintiff prior to 10.03.1999, hence, the
controversy at hand and the present Claim needs to be adjudicated on
the basis of the only available bill dated 10.03.1999.
112. Even the defendant in paragraph Nos. 9, 10 and 10(1) of its written
statement has admitted that it has duly received the abstracts (final bill
and corrected final bill as per plaintiff) dated 23.01.1999 and
10.03.1999 respectively. The relevant portions of the written statement
reads as under:
―9. That the contents of para 9 are absolutely incorrect,
wrong and denied. It is submitted that since no bill was
submitted by the plaintiff the question of the Executive
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Engineer of the defendant taking no action to settle the
accounts of the plaintiff does not arise. As a matter of
fact the completion certificate had recorded on certain
rectification of defects and certain incomplete left out
building work/items were to be completed by the
plaintiff. The plaintiff did not execute the work relating
to rectification of defects/left out work items and rather
abandoned the work and, therefore, the defendant had
no alternative except to get the rectification of defects as
also left out building work/items to be got executed at
the risk and cost of the plaintiff after completing all the
formalities because the allottees of the dwelling unit
were pressing hard to get the possession of their flats.
The left out work was awarded to another agency vide
award letter No. F.11 (225) ED-4/DDA/1999-2000/484
rd
dated 23 March, 2000 for the sum of Rs.7.14 lacs
under intimation to the plaintiff. In the facts and
circumstances, as stated out above, there was no
occasion for the officials of the defendants to
acknowledge the alleged receipt of the alleged final bill
in any manner whatsoever.
10. That the contents of para 10 as stated is totally
incorrect and denied. It is denied that the amount as
claimed is payable to the plaintiff by the defendant. The
details of the amount are being dealt with individually
and separately hereafter.
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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CS(OS) 457/2000 Page 36 of 139

1. Payment of final bill of Rs.41,77,809/- in respect of
items of work done.
In addition to the submissions made hereinabove, it is
submitted that the final bill according to the contract
was payable within 6 months from the date of
nd
completion. It is wrong and denied that bill dated 22
August, 1997 have been submitted by the plaintiff to the
rd
defendant. It is submitted that on 23 January, 1999
the defendant received an abstract of the amount
claimed by the plaintiff . That was not a bill. In the said
so called bill the plaintiff had indicated a sum of
Rs.29,57,349.70 as payable to the plaintiff by the
defendant besides a sum of Rs.6,04,825.75 on account of
actually work done but not paid. The said alleged bill
was not a final bill or a bill at all. It was only an
abstract of the amount claimed by the plaintiff. Once
again another abstract was submitted in the office of
th
the defendant on 10 March, 1999 though it was not a
bill strictly speaking, and according this revised
abstract the plaintiff claimed Rs.31,99,124.02 as
received by the plaintiff besides the sum of
Rs.6,04,825.75 on account of work done but not paid.
Here as against a sum of Rs.6,04,825.75 the plaintiff is
making a claim of Rs.9,87,680/-, thus there is an
apparent contradiction in the stand of the plaintiff. It is
denied that a sum as claimed is payable. It may be
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SRIVASTAVA
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mentioned here that since the work was awarded to
another agency at the risk and cost of the plaintiff and
that work is yet to be completed, therefore, there was
no occasion for the defendant to finalise the bill. The
finalization of the bill depended upon the rectification
of defects and the execution of the building work/items
which were to be got executed at the risk and cost of
the plaintiff. As stated in para 9 above the work to the
tune of Rs.7,14,003/- awarded to another agency under
intimation to the plaintiff. It is submitted that the bill is
to be finalized on the completion of the work by the
other agency to whom work has been awarded at the
risk and cost of the plaintiff and till that time the exact
figures cannot be worked out. However, the claim put
forth by the plaintiff is vehemently denied.‖
113. Mr. M.K. Gupta (DW1), in his affidavit by way of evidence only
reiterated the contents of the written statement and no questions in his
cross-examination were put to him with respect to this Claim. The
record of cross-examination of DW1 reads as under:
―On SA
XXXXX by Mr. M. S. Vinaik, Advocate for the plaintiff.
Presently, I am posted as an Executive Engineer (Hqrs),
Civil Circle-12, North Zone, Ashok Vihar Phase-I, New
Delhi. At the time when I sworn my affidavit ExDW1/A, I
was posted as Assistant Engineer.
Q. Did you deal with this case personally?
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A. Yes, I have dealt with this case as per office record.
Q. What was the scope of your duty while dealing with this
case as an Assistant Engineer?
A. As per directions of our Executive Engineer ED-IV, I was
instructed to deal with this case.
As an Assistant Engineer, my duty was to see the civil
construction work & maintenance etc. I used to have site
visits of the places where construction work was done
through contractors.
Q. You have mentioned in para 4 of your affidavit that the
work was start on 25.12.92 and date of completion was
24.06.1994. Did the work start in time and end in time?
A. The work was started in time. However, the same was
could not be completed in time. It was completed on
22.02.1997.
It is wrong to suggest that the delay in work was
attributable to hindrances caused by DDA.
Q. Is it true that every time, DDA issues a completion
certificate, it is issued subject to rectification of defects?
A. No.
Q. Is it true that in every construction contract, DDA has a
defect liability period after completion?
(Objected to by counsel for defendant by submitting that
question does not have any relevancy pertaining to this
case).
Court observation: question disallowed since it is of general
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in nature.
Q. Is it true that DDA issued completion certificate to
plaintiff after completion of work?
A. Yes, DDA issued completion certificate to plaintiff,
subject to rectification of defects as detailed in completion
certificate.
It is wrong to suggest that DDA issued completion
certificate to plaintiff after being satisfied about the
completion of work done by plaintiff.
It is correct that plaintiff had requested for extension of
time for completion of work.
I did not deal with the request of plaintiff for extension of
time. The officer who was posted at the relevant period in
the DDA dealt with the request of plaintiff.
It is correct that plaintiff was granted extension of time
without levy of compensation or fine.
Further cross examination of the witness is deferred as
witness wants to answer the questions after going through
record of the case.
…
On SA
XXXX by Mr. M. S. Vinaik, Advocate for plaintiff.
It is correct that in all construction contracts and in this
contract also, a Hindrance Register is maintained by the
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DDA.
Q. Is it true that the Hindrance Register is prepared by the
AE and is counter signed by Executive Engineer and
Superintending Engineer?
A. It is correct. Vol. It is prepared by JE.
Q. Is it true that all the Hindrances faced by the plaintiff
were recorded in the Hindrance Register for the contract in
question also?
A. I have to check up the record of the case.
It is wrong to suggest that the delay in execution of the
work by the plaintiff was wholly attributable to the
Hindrances recorded in the Hindrance Register.
Concluded.‖
114. In view of the aforesaid admissions with regards to the factum of
receipt of bill/abstract, the issues which arise for consideration is the
nature of the document and the amount due and payable, if any.
115. The said argument creating distinction between the final bill and an
abstract is merely a baseless assertion not supported by any cogent
evidence or any argument as to how the nature of that enclosed bill is
that of an abstract. Additionally, there is no particular format either of
an abstract bill or that of a final bill, which is brought to my notice in
support of this argument.
116. From a perusal of the enclosing letter dated 10.03.1999, it is clear that
the bill enclosed therewith running around 20 pages has been
categorically referred to as “Final bill” by the plaintiff and from a
perusal of the same it can be seen that it is an elaborate and detailed
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bill. The same is having particulars of every sub-head and expenses that
cannot in any way be said to be only an abstract especially in absence
of any argument as to how it is an abstract and not a final bill. The bill
enclosed with letter dated 10.03.1999 (Ex. PW1/85) reads as under:
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117. It was only when the defendant ignored the requests for payment made
by the plaintiff, the plaintiff was compelled to raise this final bill and
the defendant despite admitting that it has received the bill dated
10.03.1999 (Ex. PW1/85) has failed to demonstrate any steps that it had
taken pursuant to the said bill. Thus, the defendant cannot be allowed to
evade its liability by referring these bills as abstracts rather than final
bills.
118. In this view of the matter, the aforesaid argument of the defendant is
rejected and does not deserve any further consideration.
119. It is also stated in the evidence by way of an affidavit of Mr. M.K.
Gupta on behalf of defendant exhibited as Ex. DW1/A that the sum as
claimed in the suit is not payable. He has not specifically made any
statement in the affidavit with respect to the present Claim and has in a
general manner denied liability to pay any amount. This stand of the
witness for defendant is merely a bald denial of its liability without
establishing any cogent grounds or explaining any specific reasons for
the same. The relevant paragraphs of the affidavit read as under:
―7. The delay in the completion of work was not in any
manner attributable to the Defendant- DDA or its
officers or any agency related to the Defendant. The
Completion certificate was issued after grant of
extension of time uptil 22.02.1997 without levy of
compensation under clause 2 of the agreement at the
request of the Plaintiff. The payment under clause 10CC
was released till the completion of work and duly
th th
accepted by the Plaintiff vide 13 RA Bill (10CC), 14
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th th
RA Bill (10CC), 15 RA Bill (10CC) and 16 RA Bill
(10CC) which are marked as Ex DW1/3, DW1/4, DW1/5
and DW1/6 respectively.
8. I say that the Plaintiff is not entitled to claim anything
more than what has been paid under clause 10CC of the
agreement.
…
11. I say that the amount claimed by the Plaintiff is not
payable to the Plaintiff by the Defendant. The Final bill
according to the contract was payable within 6 months
from the date of completion. Defendant had never
submitted Final Bill. The sum as claimed in suit is not
payable. Since the work was awarded to another agency
at the risk and cost of the Plaintiff. Under Clause 49 of
the agreement, since the case is pending for adjudication
before this Hon'ble Court, bank guarantee can be
retained.‖
120. The mere denial of liability on part of the defendant to pay the demand
raised by the plaintiff only on the ground that the rectification work had
to be awarded to some other agency for completion at risk and cost of
the plaintiff, cannot absolve the defendant from its liability to pay the
same. The defence witness DW1 has in his affidavit failed to even
name the alternate agency through which the rectification work was
undertaken.
121. The defence witness DW1 on the other hand has admitted the issuance
of completion certificate after grant of EOT.
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122. At this juncture, it is important to refer to the completion certificate
dated 22.02.1997 (Exhibit as Ex. P2), which reads as under (True typed
copy):
―COMPLETION CERTIFICATE
Name of Work – C/o 1174 M.I.G. / 210 L.I.G. / 623 E.W.S
houses at Kondli Gharoli Phase II
(S.H. – C/o 176 M.I.G. houses I/C internal development at
Kondli Gharoli Phase II, Gr. IX)
Agency – M/s J. S. CONSTRUCTION
Agreement No – 47/EE/E.D.3/D.D.A/92-93
&
7/EE/E.D.7/D.D.A/93-94
Estimated Cost – Rs. 2,02,25,140/-
Percentage above – 63.30% above D.S.R
Tendered Cost – Rs. 3,30,27,654/-
Date of start (as per agmt)– 25.12.92
Date of completion (as per agmt)-24.6.94

Time allowed for completion – 18 months

Date of completion (actual)- 22.2.97
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SRIVASTAVA
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Certified that the work has been physically completed on
22/2/97 and no defects are apparent and the contractor has
removed from the premises on which the work was being
executed all scaffoldings, wood work, surplus materials and
the rubbish and has cleaned the dirt from all doors,
windows, walls, floors other......
in upon or about which the work has to be executed or of
which he had possession for the purpose of execution
thereof. This is however to measurements being recorded
and the quality being checked by the competent authority.
The completion certificate is being recorded subject to the
following conditions :-
(1.) Final coat of white wash /painting of doors and
windows, shutters in the flat and final coat of paint over the
railings, grills of staircase and balconies and paintings of
S.C.I./G.I. pipe etc.
(2.) Cleaning and repairing of all manholes (circular &
rectangular) and gully gratings and S.W. drains and fixing
of M.S. foot rests
(3.) Testing of all sewers /water lines, internal and external
(4.) Fixing of windows, fasteners and stays
(5.) Cleaning of windows/glazing and fixing of glass panes
and repairs of M.S. …. and steel glazing wherever required.
(6.) Fixing of covers over road gully chambers… manholes
and water meter chambers etc.
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(7.) Fixing of covers for fire hydrant and sluice valves and
ferrule chambers and brass spindle.
(8.) Fixing of M.S. covers and frame of RCC tanks over
terrace
(9.) Fixing of low level cistern, high level cistern,
washbasins and Brass and C.P. fittings etc in the flats
(10.) Fixing of towel rails, looking mirror, fixing of ferrule
in waterlines and fitting of R.C.C. circular tanks
(11.) Repairs of plasters/C.C. flooring /mosaic dado/glazed
tiles/C.C. path/grit wash/kota stone/ mosaic flooring and
skirting and mud phuska in terrace and mumty etc.
wherever necessary.
(12.) Replacement of broken A.C. pipe /S.C.I. rainwater
pipe in stacks and its fittings etc.
(13.) Fixing/repairing of door shutters fittings
(14.) Final rubbing and polishing of marble flooring and
skirting in flats.
(15.) Cleaning and testing of mud phuska and khurra.
(16.) All defects painted out by Q.C. cell and other
inspecting authority such as C.E., S.E., E.E. and as per
defect register should be rectified by the contractor.‖
123. The Completion Certificate as reproduced hereinabove itself records
physical completion of the work on 22.02.1997 and that no defects
were found. The items listed as outstanding include whitewash and
painting, cleaning of manholes and drains, fixing of fittings and
fasteners, repair of plaster and flooring, and similar items.
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SRIVASTAVA
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124. Once there is a completion certificate in favour of the plaintiff and the
defendant has failed to establish precise grounds for non-payment of
the final bill raised by the plaintiff, the defendant cannot be allowed to
deny the plaintiff‟s legitimate dues indefinitely by merely stating that
another agency had to undertake the rectification work not done by the
plaintiff.
125. The defendant has categorically in the paragraph No. 10(1) of its
written statement (reproduced above in paragraph No. 112 of the
judgment) has stated that the bill is to be finalized after completion of
rectification work by the outside agency and the same could not be
worked out. However, except for the award of work and for the
statement that the defendant has to outsource the rectification work, no
evidence has been led by the defendant to show:
A. Proof of actual payment of Rs. 7,14,003/-, made to the
outside agency for getting the rectification work done,
which was allegedly to be done by the plaintiff.
B. Additionally, the defendant has neither filed a
counterclaim nor pleaded a set off.
126. The settlement of the bill could have awaited the finalization of the
rectification work but the same cannot be left in the lurch indefinitely
on this ground. The defendant ought to have produced cogent evidence
in support of its contentions to oppose the payment of final bills, which
it has failed to do so.
127. An award of work, in itself, is insufficient to prove, if any actual
expense has been incurred by the defendant in getting the rectification
work done. Thus, in the absence of complete records, bills, and proof of
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payment qua the rectification work by the outside agency, this
argument cannot be allowed to defeat the genuine claim of the plaintiff.
128. In this view of the matter, the unsubstantiated argument of the
defendant that nothing was payable cannot be countenanced.
129. The defendant has also pointed out inconsistencies in the Claim of the
plaintiff raised by way of final bill dated 10.03.1999 and the present
suit i.e., the plaintiff is seeking Rs. 31,90,124/- (amount payable for
undisputed work) and Rs. 9,87,680/- (for actual work done) as against
Rs. 6,04,825.75/- stated in the bill dated 10.03.1999 (Ex. PW1/85) for
actual work done.
130. The plaintiff in the suit (as per the final bill) besides claiming 31,
90,124/- (amount payable for undisputed work) and Rs. 6,04,825.75/-
(for actual work done but not paid) has claimed an additional sum of
Rs. 3,82,854/- being 63.3% of Rs. 6,04,825.75/- (the actual work done
but not paid) towards contractor‟s percentage, hence, there is no
inconsistency in the final bill and the amount sought to be recovered by
way of the present suit. The same can be clearly inferred from a perusal
of the bill reproduced in the paragraph No. 116 of the present
judgment.
131. From a perusal of the aforesaid, it is clear that the total amount due as
per the final bill is Rs. 41,77,809/-. Thus, the argument of the defendant
that there is an apparent contradiction between the final bill and the
amount claimed by way of this suit deserves to be rejected.
132. The defendant has also fleetingly raised an argument that the payment
under Clause 10CC has been released till completion date and the same
has been accepted by the plaintiff.
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133. From a bare perusal of Clause 10CC it is clear that the same provides
for price escalation and moreover, the aforesaid stand of the defendant
is contrary to the stand taken by the defendant in paragraph No. 10(1)
of its written statement wherein it is categorically stated that the bill is
to be finalised on completion of work by the outside agency and till
that time the exact figures cannot be worked upon. The relevant portion
of the paragraph is already reproduced in the paragraph No. 112 of this
judgment.

134. Thus, the defendant cannot be allowed to make contrary submissions
that the bill is to be finalized on completion of rectification works and
at the same time also stating that the bill was already paid under 10 CC
compensation which was released in 1997. Accordingly, this argument
of the defendant also fails to shake the case of the plaintiff.
135. The standard of proof by which the present Claim needs to be
adjudicated is that of preponderance of probability, which for all of the
reasons as stated above leans in favour of the plaintiff and accordingly,
the Claim No. 1 is decided in favour of the plaintiff.
136. Accordingly, the plaintiff is entitled to a decree of Rs. 41,77,809/-
along with interest.
Claim No. 2: Release of bank guarantee of Rs. 3 lakhs, and
incidental expenses of Rs. 40,000/. (the onus to prove this claim is on
the plaintiff.)
137. At the outset, it is noteworthy that this Court in its Order Sheet for I.A.
No. 2084/2001 dated 03.08.2001 categorically recorded the fact that the
bank guarantee as well as its invocation period has already expired and
the only question which was kept open for adjudication was the
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entitlement of the defendant to insist upon keeping the said bank
guarantee alive under Clause 30 of the Agreement. The Order Sheet
dated 03.08.2001 reads as under (True typed copy):
―03.8.2001
Present: Ms. Anjali Sharma for the plaintiff.
Mr. V.K.Sharma for the defendant
Ι.Α.2084/2001 in S.No.457/2000
Since the application was for interim injunction restraining
the defendant from encashing the bank guarantee, same has
become infructuous as the bank guarantee has expired and
the period of its invocation has also expired. I.A. is
dismissed.
However, the question whether the defendant is entitled to
have bank guarantee alive under clause 30 of the agreement
shall remain open for consideration.
I.A.2083/2001
In spite of several opportunities, plaintiff has not filed reply
to the application. Application is allowed.
Plaintiff is directed to supply better particulars within four
weeks.
S.No.457/2000
Renotify on 11th December, 2001 for further proceedings.
03rd. August, 2001 J.D. KAPOOR
JUDGE‖
138. Subsequently, the plaintiff filed an I.A. bearing No. 11438/2001
seeking deletion of the observation recorded by the Court in the
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aforesaid Order on the ground that the bank guarantee has already
expired and the question which is left open is just academic in nature,
and is causing great prejudice to the plaintiff because the bank is
refusing to return the margin money and is continuing to deduct
charges towards this bank guarantee.
139. Pursuant thereto, vide Order dated 11.12.2001 passed in another I.A.
11438/2001, the aforesaid question was deleted by this Court observing
that it had become redundant. The Order Sheet dated 11.12.2001 reads
as under (True typed copy):
―11.12.2001

Present: Ms. Anjali Sharma for the plaintiff.
Ms .Shobana Takiar for the defendant.
I.A.No.11438/2001
In view of the fact that the bank guarantee has expired and
the time for extending the same has also expired, the
observations made in the order dated 3rd August, 2001 to
the effect that the question whether the defendant is entitled
to have bank guarantee alive under Clause 30 of the
agreement shall remain open for consideration have
become redundant and stand deleted.
IA stands disposed of.
Dasti.
S.No.457/2000
Counsel for defendant states that she has received file from
the department only yesterday. Let written statement be filed
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SRIVASTAVA
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within six weeks. Replication be filed within four weeks
thereafter.
Renotify on 14th May, 2002.
11th December, 2001 J.D. KAPOOR
JUDGE‖
140. The Plaintiff in his written arguments dated 06.08.2025 placed on
record, has made the following argument with respect to this Claim:
―The plaintiff having established Breach of Obligations on
the part of the defendant beyond reasonable doubt , the
encashment of Bank Guarantee is obviously unreasonable
and deserves to be compensated for . In fact, there is no
counter claim of DDA against the plaintiff thereby
establishing the fact that DDA has no claim whatsoever
against the plaintiff. It would only be fair if the judgment
and decree to hold that the defendant is liable for
compensating the plaintiff against illegal encashment of
BG .‖
141. The abovesaid argument of the plaintiff seems to be contrary to the
observations recorded in the Orders dated 03.08.2001 and 11.12.2001,
wherein it has clearly been recorded that the bank guarantee has
expired, time for extending the same has expired and the bank
guarantee need not be kept alive.
142. No other Order has been brought to my notice, wherein it has been
indicated that the bank guarantee was encashed.
143. Additionally, the onus of proof for this issue lies on the plaintiff and he
has failed to lead any evidence to show that the bank guarantee bearing
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No. 39/94-95 issued by the State Bank of Indore, Green Park
Extension, New Delhi, was encashed by the defendant.
144. Even though in the written arguments as reproduced hereinabove the
plaintiff has stated that the bank guarantee has been encashed, no
cogent evidence has been produced before me to prove the same.
Additionally, no material has been filed to show the expenses incurred
in keeping the bank guarantee alive.
145. In the absence of the plaintiff having led cogent evidence and having
failed to discharge his onus of proof, the relief as claimed by him
cannot be granted.
Claim No. 3: Cost of work done beyond the stipulated date of
completion @ 20 percent extra over the tendered rates. Rs. 48,98,553/.
146. By way of this Claim, the plaintiff is essentially seeking compensation
for the work executed beyond the stipulated date of completion,
calculated at 20% over the tendered rates to account for inflation and
idling costs arising out of the 32 months delay caused by the failure of
defendant to fulfil its obligations. The same resulted in idling of the
centering and shuttering material and costing of RC, etc. Plaintiff has
placed reliance on letter dated 31.03.1993 (Exhibited as Ex. PW1/4) to
point out breaches on part of the defendant.
147. It is stated that the plaintiff mobilised all his resources for timely
completion of the project but the defendant failed to arrange supply of
stipulated materials, drawings on time and to ensure timely payments
for work done. Also, the Claim of the plaintiff is not covered by any
escalation clause including Clause 10CC and is in addition to the same.
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SRIVASTAVA
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148. Per Contra, the defendant has argued that payment made under Clause
10CC is a comprehensive payment and nothing more is payable. It is
also argued that this Claim was raised by the plaintiff on 21.10.1996,
which was rejected on 16.11.1996 by the defendant reiterating Clause
10CC.
149. It is also important that the plaintiff applied for EOT stating that he
would not claim anything extra amount due to the delay which was
sought to be extended. Thus, in view of this undertaking by the plaintiff
and clause 10CC compensation, this Claim deserves to be rejected.
150. Plaintiff has placed reliance on letter dated 20.06.1994 (Exhibited as
Ex.PW1/86) to state that the plaintiff informed the defendant in
advance that the delays are attributable to the defendant and the work
could only be completed beyond time on payment of 20% over and
above the quoted rates. The letter dated 20.06.1994 (Ex.PW1/86) reads
as under (True typed copy):
―J.S. Constructions
Govt. Contractor & Engineer
Ref. No. ......................... Dated: 20th Jun 94
To,
The Executive Engineer,
Eastern Division-VII, DDA
Seed Bed Park, School Block,
Shakarpur, Delhi-110092.
Sub : Construction of 176 MIG Houses at Kondli Gharoli
Phase-II, Group-9.
Signed By:ANSH
SRIVASTAVA
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Dear Sir,
This has reference to the award of aforesaid work to us. As
you are aware, the work was awarded to us on 16.12.1992 and
the completion date was 18 months after the tenth days period
from the start of the work. Accordingly the date of completion
will be 26th June, 1994. As you have been notified in the
correspondences exchanged on account of various breaches
which are outlined below once again on your part, the work
could not be completed and has to be executed beyond the
stipulated date of completion. The work has been delayed
because of numerous causes some of which are :
1. Non-availability of complete site.
2. Non-issue of drawings for both structural and
architectural.
3. Delayed decisions.
4. Non-sanction of extra items/substituted items.
5. Erratic payments of running bills.
6. Deviation in the quantities beyond agreement quantities.
7. Non-payment of bill under Clause 10cc of the Agreement.
We hereby notify you that for the work to be done after the
stipulated date of completion, we shall be claiming 20 per cent
over and above the estimated cost our quoted rates (63.30%
above the DSR 1989). The rate being claimed (63.30%) is in
accordance with the current market rate at which the works
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SRIVASTAVA
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are being awarded. This is without prejudice to our other
claims under various clauses of the Agreement and in
particular Clause 12-A and other claims under the contract.
Thanking you.
Yours faithfully,
For M/s J.S. Constructions
151. In response to the aforesaid request raised by Ex.PW1/86, the same was
not declined by the defendant but was posted for consideration after
completion of formalities of EOT. Letter dated 25.06.1994 exhibited as
Ex. PW1/87 (also marked as Ex. P7) is reproduced hereunder (True
typed copy):
―OFFICE OF THE EXECUTIVE ENGINEER
EASTERN DIVISION-7, DDA, DELHI-92
No. F.54(65)93-94/ED-7/A/DDA/3007-3008 Dt. : 25.6.94
To
M/s J.S. Constructions
J-171, Saket, New Delhi-16
Sub: C/o 176 M.I.G. Houses at Kondli Gharoli, Ph.II, Gr.-
IX.
.....
Dear Sir,
Kindly refer your letter dated 20th June 1994 regarding
above mentioned work. In this regard it is intimated that
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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CS(OS) 457/2000 Page 79 of 139

Time Extension Case of the above work is being reviewed
under this division as well as in the Circle Office. As and
when final outcome of the same is received from the Circle
office the same will be intimated to you.
In light of above mentioned fact I am not in a position to
give any extra rate beyond 63.30% above. However
payment under Clause - 10CC of the Agreement will be
released in due course after getting outcome of the E.O.T.
Case from the Competent Authority.
Thanking you,
Yours faithfully

(H.S. DHARAMSATTU)
EXECUTIVE ENGINEER
EASTERN DIVISION-7
D.D.A., DELHI – 92‖
152. PW1 in his evidence by way of an affidavit reiterated the aforesaid
contentions of the plaintiff and also stated that the defendant in issuing
the aforesaid reply (Ex. PW1/87) has admitted his claim.
153. Defendant in its written statement has stated that the plaintiff in his
application form seeking EOT in the prescribed proforma part-I has
declared that he will not claim any extra amount due to the
aforementioned delay. The defendant has relied on application for EOT
Signed By:ANSH
SRIVASTAVA
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Part-I dated 12.05.1997, which is exhibited as Ex. P3 and the same
reads as under (True Typed Copy):
―Application for Extension of Time-Part I
1. Name of Contractor: J.S. Constructions
2. Name of work as given in the agreement: C/o 176 M.I.G.
Houses at Kondli
3. Agreement No.: 07/E.E./E.D.-7/93-94
47/E.E./E.D.-3/92-93
4. estimated amount put to tender: Rs. 2,02,25,140-00

5. Date of commencement of work as per agreement: 25-12-92
6. Period allowed for completion of work as per Agreement: 18(
Eighteen) months.
7. Date of completion as per agreement: 24-06-94.
8. Period for which extension of time has been given previously –
st
1 extension vide E.E.’s No. Date
nd
2 extension vide E.E.’s No.
rd
3 extension vide E.E.’s No.
th
4 extension vide E.E.’s No.
Total extension previously given
9. Reasons for which have been previously given (Copies of the
previous applications should be attached)
10. Period for which extension is applied for Date of completion
22.02.97.
Signed By:ANSH
SRIVASTAVA
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11. Hinderances on account of which extension is applied for with
dates on which hinderance occurred and the period for which these
are likely to last

Total period for which extension is now applied for hinderances
mentioned above.
Extension of time required for extra work
Details of extra work and amount involved-
Total value of extra work 50 Lacs 3,30,27,654/- 18
months x50,000,00/-
-----------------------------------
3,30,27,654-00 = 2.72 x 1.25= 3 ….
=102 days
Proportionate period of time put to tender on account of based
Signed By:ANSH
SRIVASTAVA
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… amount put to tender on account of extra work.
Total extension of merequired for 11 &12-
I will not claim any extra amount due to above mentioned
delay
Signature of Contractor
Date

Submitted to the sub-divisional officer.‖
Signed By:ANSH
SRIVASTAVA
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Enlarged image of the relevant extract from Ex. P/3





Signed By:ANSH
SRIVASTAVA
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154. When PW1 was put to cross examination with respect to the
undertaking recorded in the application dated 12.05.1997 (Ex. P3)
seeking EOT, he admitted that the undertaking was duly written and
signed by him but at the same time, he also stated that it was a one-
sided agreement and EOT would not have been granted if he would
have not made that undertaking. The relevant excerpts from the cross-
examination of PW1 recorded on 19.01.2015 read as under:
―At this stage encircled portion A of Ex.p3 is shown to the
witness where the words ―I will not claim any extra amount
due to above mentioned delay‖ is confronted to the witness
by stating that he himself has written such words and
witness has admitted that he has written such words and he
volunteers that since it was one sided agreement and If
these words would not have been written by him his time
would not have been extended and he has written the same
under completion.
It is incorrect to suggest that there was no completion or
pressure upon me by DDA to write such words on encircled
portion A of Ex.P3. It is incorrect to suggest that Ex.P4 &
Ex.P6 does not bear my signature however it is correct that
Ex.P5 does not bear my signature. It is incorrect to suggest
that the DDA has given me the material of steel or cement in
time or the same was always available in the store of DDA
in abundance. I have not completed the remaining defected
work or un-rectified work in terms of Ex.P2 (Ex.PW1/3)
(Vol. there was no such averment in Ex.P2 (Ex.PW1/3). …‖
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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CS(OS) 457/2000 Page 85 of 139

155. In the present case, as per the concluded contract between the parties
clause 10CC contemplated payment on account of escalation. Clause
10CC of the Agreement is reproduced as under:
―CLAUSE 10CC. If the prices of materials at stores (not
being materials supplied or services rendered at fixed prices
by the department in accordance with Clauses 10 & 34
hereof) and/or wages of labour required for execution of the
work increases, the contractor shall be compensated for
such increase as per provisions detailed below and the
amount of the contract shall accordingly be varied, subject
to the condition that such compensation for escalation in
prices shall be available only for the work done during the
stipulated period of the contract including such period for
which the contract is validity extended under the provisions
of clause 5 of the contract without any action under clause 2
and also subject to the condition that no such compensation
shall be payable for a work for which the stipulated period
of completion is 6 months or less. Such compensation for
escalation in the prices of materials and labour, when due,
shall be worked out based on the following provisions:
1. The base date for working out such escalation shall be
the last date on which tenders were stipulated to be
received.
2. The cost of work on which with escalation will be
payable shall be recokoned as 85% of the cost of work as
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SRIVASTAVA
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per the bills, running or final, and from this amount the
value of materials supplied under clause 10 of this contract
or services rendered at fixed charges as per clause 34 of
this contract, and proposed to be recovered in the particular
bill, shall be deducted before the amount of compensation
for escalation is worked out. In the case of materials
brought to site, for which any secured advance is included
in the bill the full value of such materials as assessed by the
Engineer-in-Charge (and not the reduced amount for which
secured advance has been paid) shall be included in the cost
of work done for operation of this clause. Similarly, when
such materials are incorporated in the work and the secured
advance is deducted from the bill,
Cost of the work shown in the bill, running or final. Further
the cost of work shall not include any work for which
payment is made under clause 12 or 12(A) at prevailing
market rates.
3. Components of materials, labour, P.O.L., etc., shall be
pre-determined for every work and incorporated in the
conditions of contract attached to the tender papers and the
decision of the Engineer-in-Charge in working out such
percentages shall be binding on the contractor.
4. The Components for escalation for materials, labour and
P.O.L. shall be worked out as per the formula given below:-
i) VM = W × (X / 100) × ( (MI - MI₀) / MI₀ )
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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VM = Variation in material cost i.e. increase or
decrease in the amount in rupees to be paid or
recovered.
W = Cost of work done worked out as indicated in
sub-para 2 above.
X = Component of materials expressed as percent of
the total value of work.
MI & MI₀ = All India whole sale index for all
commodities for the period under reckoning as
published by the Economic Advisor to Government of
India, Ministry of Industry and Commerce, for the
period under consideration and that valid at the time of
receipt of tenders, respectively.
(ii) VF = W × (Z / 100) × ( (FI - FI₀) / FI₀ )
VF = Variation in cost of fuel, oil and lubricant,
increase or decrease in rupees to be paid or recovered.
W = Value of work done, worked out indicated in
sub-para 2 above.
Z = Component of P.O.L. expressed as percent of
total value of work as indicated under the special
conditions of contract.
FI & FI₀ = Average index number of wholesale price
for group (fuel, power light and lubricants) as
published weekly by the Economic Adviser to Govt of
Signed By:ANSH
SRIVASTAVA
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India Ministry of Industry for the period under
reckoning and that valid at the time of receipt of
tenders respectively.
5. The following principles shall be followed while working
out indices mentioned in sub-para 4 above.
(a) The compensation for escalation shall be worked
out at quarterly intervals and shall be with respect to the
cost work done during the three calender months of the
saidwork. The first such payment shall be made at the end of
three month after the month excluding) in which the tender
was accepted and thereafter at three months interval. At the
time of completion of the work, the last period for payment
might become less than 3 months, depending on the actual
date of completion.
(b) The index (MI/FI etc.) relevant to any quarter for
which such compensation is paid shall be the arthmetical
average of the indices relevant to the three calender months.
If the period up to date of completion after the quarter
covered by the last such instalment of payment, is less than
three months, the index MI and FI shall be the average of
the indices for th month falling within that period.
(c) The base index, MI₀ FI₀ etc. shall be the one
relating the month in which the tender was stipulated to be
received.
6. The compensation for escalation for labour shall be work
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SRIVASTAVA
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out as per the formula given below :
(iii) VL = W × (Y / 100) × ( (LI - LI₀) / LI₀ ) …
VL = Variation in labour cost i.e. increase or
decrease in the amount in rupees to be paid or
recovered.
W = Value of work done, worked out as indicated in
sub para 2 above.
Y = Component of labour expressed as percnet of
the total value of work.
LI₀ = Minimum daily wage in Rupees of unskilled
adult male mazdoor, as fixed under any law, statutory
rule or order as on the last date on which tenders for
the work were to be received.
LI = Minimum wage in rupees of an unskilled adult
male mazdoor, as fixed under any law statutory rule or
order as applicable on the last day of the quarter
previous to one during which the esscalatin is being
paid.
7. The following principles will be followed while working
out the compensation as per sub-para 6 above.
(a) The minimum wage of an unskilled male mazdoor
mentioned in sub-para 6 above shall be the higher of the
following two figures, namely those notified by Government
of India, Ministry of Labour and those notified by the local
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SRIVASTAVA
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administration, but relevant to the place of work and the
period of reckoning.
(b) The escalation for labour also shall be paid at the
same quarterly intervals when escalation due to increase in
cost of materials and/or P.O.L. is paid under this clause. If
such revision of minimum wages takes place during any
such quarterly intervals, the escalation compensation shall
be payable for work done in all quarters subsequent to the
quarter in which the revision of minimum wages takes
place.
(c) Irrespetive of variations in minimum wages of a
category of labour, for the purpose of this clause, the vary
in the rates for an unskilled adult male mazdoor alone shall
form the basis for working out the escalation compensation
payable of the labour component.
8. In the event the price of materials and/or wages of labour
required for execution of the work decrease/s, there shall be
downward adjustment of the cost of work so that such price
of materials and/or wages of labour shall be deductable
from the cost of work under this contract and in this regard
the formula herein before stated under this clause 10 (CC)
shall mutatis mutandis apply provided that:-
i) no such adjustment for the decrease in the price of
materials and/or wages of labour aforementioned would be
made in case of contracts in which the stipulated period of
Signed By:ANSH
SRIVASTAVA
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completion of the work is less than six months;
ii) the Engineer-in-Charge shall otherwise be entitled to
laydown the principles on which the provision of this sub-
clause shall be implemented from time to time and the
decision of the Engineer-in-Charge in this behalf shall be
final and binding.
Provided always that the provisions of the preceding clause
(10C) shall not be applicable for contracts where
provisions, of this clause 10 (CC) are applicable. However,
in contracts where provisions in clause 10(CC) are not
applicable, then provisions in clause 10(C) will become
applicable".
The component of material, labour and P.O.L. as indicated
in para 3 of sub clause 10(CC) have been pre-determined as
below :
(a) Material Seventy five Percent 75
(b) Labour Twenty five Percent 25
(c) P.O.L. NIL Percent X
TOTAL ; Hundred 100‖
156. The plaintiff vide letter dated 20.06.1994 exhibited as Ex. PW1/86 ,
sought to alter the terms of the contract by offering to do the work after
the stipulated date of completion by charging 20% over and above the
Signed By:ANSH
SRIVASTAVA
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initially quoted rate of 63.30%. The same was not accepted by the
defendant.
157. The defendant vide letter dated 25.06.1994 (Ex. PW1/87 also marked
as Ex. P7) informed the plaintiff that the matter concerning EOT is
pending consideration and the defendant is not in a position to allow
anything beyond the already fixed 63.30%.
158. Thereafter, the plaintiff made an application seeking EOT dated
12.05.1997 (Ex. P3). The said offer (EOT application) contained a
specific undertaking ―I will not claim any extra amount due to above
mentioned delay‖ . It was this offer which was accepted by the
defendant and the defendant accordingly granted EOT, leading to a
concluded contract between the plaintiff and the defendant.
159. The stand of the plaintiff seeking to claim sums after specifically
agreeing not to claim, would result in breach of this contractual term. It
is only on this basis that the EOT was granted to the plaintiff. As
regards the argument that EOT was obtained under duress or coercion,
there is no document from 12.05.1997 to show any protest/objection
raised by the plaintiff in this regard.
160. Hence in view of the undertaking recorded in the EOT Application
(Ex.P3) and the fact that no evidence has been led with respect to the
argument of duress to satisfactorily impeach the said undertaking, this
Claim of the plaintiff stands rejected.
Claim No. 4: Compensation for continued employment of staff,
machinery beyond the stipulated date of completion. Rs. 25,27,000/-.
161. In this Claim, the plaintiff is seeking compensation for deployment of
employees and machinery at the rate of Rs. 41,500/- per month which
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SRIVASTAVA
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is 2.2% of the quantum of work required to be executed every month in
order to complete the amount of Rs. 3,30,27,654/- for 18 months.
162. On the other hand, defendant has argued that the present Claim is a
mere reiteration of the Claim No. 3 and in absence of any contractual
stipulation to allow compensation for continued employment of staff
and machinery, the same cannot be allowed. Additionally, the plaintiff
has not led any evidence in support of this Claim of extra expense.
163. PW1 in his affidavit by way of evidence has provided a detailed
calculation of the said Claim wherein amount spent in maintenance of
employees, staff and material are set out. The relevant paragraphs of
the affidavit of PW1 read as under:
―4. COMPENSATION FOR CONTINUED EMPLOYMENT
OF STAFF AND MACHINERY BEYOND THE
STIPULATED DATE OF COMPLETION RS. 25,27,000.00.
The completion of the work was delayed by 32 months for
defaults and breaches under the contract attributable solely
to the defendant. Even beyond the period of delay of 32
months, my staff and machinery had to be deployed for
another six months from the actual date of completion, i.e.
22 February, 1997. Therefore, I am entitled to be
compensated for a period of 38 months.
In terms of Clause 36 of the contract document, it was
specified as to what staff had to be deployed by me on site.
It was specified therein that I was bound to deploy at least
one Graduate Engineer, Two qualified diploma holders. I
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SRIVASTAVA
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state that I deployed my staff and machinery soon after the
receipt of acceptance of my tender offer to ensure
completion of the work on time. As a consequence of the
delay on the part of the defendant, the staff and machinery
remained under utilised for the original period stipulated in
the contract and I had to continue the employment of staff
and machinery for a future indefinite period of 32 months
beyond the stipulated date of completion.
The staff employed by me, and the wages paid per month is
detailed as under:-
Graduate Engineer 1 Nos. @Rs. 5000/-
Diploma Engineer 1 Nos. @Rs. 3,500/-
Head Mistry 1 Nos. @Rs. 4,000/-
Supervisors 4 Nos. @ Rs. 2,500 amounting
to Rs. 10,000/-
Accountant 1 Nos. @ Rs. 3000/-
Clerk 2 Nos. @ Rs. 2000/-
amounting to Rs. 4000/-
Chowkidars 6 Nos. @ Rs. 2000/-
amounting to Rs. 12,000/-
Total monthly remuneration : Rs. 41,500/-
The above staff is in addition to my head office
establishment and at a minimum of Rs. 10,000/- a month,
for 38 months, comes to Rs. 3,80,000/-.
Signed By:ANSH
SRIVASTAVA
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Likewise, machinery and other equipment deployed for
execution of the work was to the order of Rs. 10 Lakhs
detailed as under:-
1) Centering and shuttering material
2) Ballies and planks and scaffolding material
3) Concrete mixers
4) Vibrators
5) Pumps
6) Small T & P.
Since the staff and machinery had to be deployed for an
additional 38 months, beyond and the expenditure as
detailed above is of the order of Rs. 41500/- Plus Rs.
15,000/- making it a total of Rs. 56,500/-. The total loss can
be computed as 38 times Rs. 56,500 /-. In view of the
quantum of work getting reduced with every passing day I
am claiming compensation to the extent of Rs. 21,47,000/-,
on this account. Therefore, the total amount claimed under
this head comes to Rs. 25,27,000/- .
I state that the compensation claimed for deploying
construction material is based on amounts actually payable
as per market rates for taking such items on hire. I state that
no contractor owns such a large stock of such goods as
Ballies, planks, shuttering and scaffolding material, as is
required for a work of this magnitude. It is customary for
Signed By:ANSH
SRIVASTAVA
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such material to be taken on hire, and the I had to pay huge
amounts towards the hire charges for this material.
Ordinarily, the work of such material such as scaffolding,
shuttering, ballies and planks, is for about six months.
However, in the present case, the said materials were
required to be kept on site for an extra period of 38 months,
and I am entitled to be compensated for the cost incurred by
me for the said extra 38 months.‖

164. The defendant witness (DW1) in his affidavit by way of evidence has
stated that whatever amount was due, it was paid to the plaintiff under
Clause 10CC and the same also included the overheads for Staff and
Machinery. Thus, the plaintiff cannot raise any further claims. The
relevant paragraphs of the affidavit of DW1 read as under:
―12.The quoted rates as per the tender submitted and the
additional payment under clause 10CC completely takes
care of the extra expenditure that may have to be incurred
by the contractor and this includes the overheads in the
form of staff and machinery also. Once the payment under
clause 10CC has been paid, nothing more can be claimed
by the Plaintiff. The Plaintiff was well aware of the facts
when quotation was given in response to the NIT. There is
no clause in the agreement to provide for any extra claim as
is being put forth by the Plaintiff. The entire payment under
clause 10CC has been paid to the Plaintiff hence no further
claims can be raised. No work has been got done beyond the
Signed By:ANSH
SRIVASTAVA
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scope of the agreement hence the Plaintiff cannot raise any
claims regarding the same.
13.Plaintiff had accepted all the measurements, running
bills and payments.‖
165. When PW1 was subjected to cross-examination on 13.01.2016, he
clearly admitted that he has not filed any document before the Court to
show any actual expense incurred/detailed description of the particulars
which are demanded by way of this Claim. The relevant paragraph of
the cross-examination reads as under:
―I have not brought nor can I produce the clearance
certificate in this regard from the Labour Office. (Vol. Since
it is an old matter now). It is correct that i have not placed
any document on record w.r.t. number of employees/
workers / labour/ staff, I had employed. It is correct that I
have not filed any document on record w.r.t. the period for
which machinery was kept on the site.‖
166. The onus of proving this issue lay on the plaintiff, however, except for
making a bald averment and a calculation of his own, the plaintiff has
failed to produce any cogent evidence to show the number of staff
employed or the machinery deployed at the site by the plaintiff.
167. In absence of any such evidence of this nature, this statement of the
plaintiff qua compensation for continued employment of staff,
machinery without any proof qua the actual expenses incurred in
maintaining the employees, staff and machinery cannot be accepted.
Signed By:ANSH
SRIVASTAVA
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168. The law in this regard is well settled that in the absence of any
evidentiary proof and merely on the basis of unsupported calculations,
such claims cannot be granted in favour of the Plaintiff.
169. A Coordinate Bench of this Court in the judgment of Union of India v.
14
Om Construction Co. , has held:
40. The Division Bench, even in this case holds that a
Contractor would be legally entitled to these claims only if
the same is duly established and work is prolonged due to
only default of the employer and not because of the
contractor's delay.
….
42. Though, these three heads of idle machinery/labour,
escalation and loss of profits are distinct and separate
heads, the award of damages under these three heads
requires evidence and has to be established by the
Contractor . The arbitrator/Court has to consider as to
whether damages are liable to be awarded under all the
three heads and whether there is evidence on record to
support such an award. There cannot merely be an ipse
dixit of calculations without any foundational events and
documents. …‖
170. A coordinate bench of this Court in its recent judgment of ECO Green
15
Buildtech (P) Ltd. v. Vikartan Infrastructure (P) Ltd. , also held as
under:

14
2019 SCC OnLine Del 9037.
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SRIVASTAVA
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―11. For claim No. 4 the case set up by the respondent was
that the resources arranged on rent remained idle for
failure of the petitioner to supply the requisite material in
terms of the contract. The Tribunal under Sections 55 and
73 of the Indian Contract Act, 1872 (for short ―the Contract
Act‖) proceeded to deal with the claim. It was held that the
petitioner was in breach of the terms of the contract. The
contention of the petitioner that the idling of resources
constituted a part of the overhead was rejected. In absence
of evidence of actual loss or damage suffered by the
respondent or the actual rent paid, the Tribunal erred in
quantifying and awarding the damages. It would be
apposite to note that the Tribunal recorded that the claim
for payment of rent of Rs 2.5 lakhs per month towards
machinery was unsupported by vouchers demonstrating
rent had actually been paid. The Tribunal relying upon
personal experience in the filed of construction, quantified
the expenses to be two percent of the contract value and
awarded Rs 1,04,29,203 along with interest. The expertise
of the Tribunal cannot substitute the onus to be
discharged by the respondent to prove the actual loss or
damage suffered . For awarding of damages under Section
73 of the Contract Act the twin conditions of the breach of
terms of the contract and consequential actual loss or
damage suffered are mandatory to be established. Reference

15
2026 SCC OnLine Del 7062.
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SRIVASTAVA
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in this regard be made to Kailash Nath Associates v. DDA,
(2015) 4 SCC 136 : (2015) 2 SCC (Civ) 502 and Fateh
Chand v. Balkishan Dass, 1963 SCC OnLine SC 49. The
award of claim No. 4 is contrary to the provisions of the
Contract Act and the law laid down by the Supreme Court.
The award of claim No. 4 is patently illegal and liable to be
set aside.
12. Claim No. 6 concerns damages towards additional
overheads occasioned due to the breach of contract by the
petitioner . The Tribunal held that the claim made was
based on the bare minimum requirement of staff for
execution of contract and is not unreasonable. The staff
deployment was found to be consistent with trade practise
and the site requirements. It is held that had the petitioner
not committed the breach, the respondent would have
completed the work within the stipulated period thereby
not incurring the additional cost. There was no evidence
led by the respondent of additional overhead expenditure
incurred due to breach of contract. The Tribunal relied
upon personal experience in the field and CPWD circular
MAN-150 and 169 for quantifying the overhead expenses at
7.5% of the contract value . At the cost of repetition, the
expertise of the Tribunal cannot form the basis for
quantification of damages more so, when no evidence of
the expenses incurred was produced. Equally, the reliance
placed by the Tribunal upon the trade practice of
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SRIVASTAVA
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deployment of staff is unsupported by evidence on record to
establish the prevalence of the trade practice. It would be
relevant to note here that the CPWD circulars relied upon
by the Tribunal were not confronted to the petitioner and is
in violation of Section 24(3) of the Act.
171. Even though the aforesaid judgments were rendered in cases of
challenge against arbitral awards, a combined reading of the aforesaid
16
judgments along with Kailash Nath Associates v. DDA , and Fateh
17
Chand v. Balkishan Dass , clearly highlights that the plaintiff is
required to place cogent evidence on record to show continued
employment of staff, deployment of machinery and the amounts spent
thereupon and in absence of the same, vague and unsupported
calculations cannot be accepted to award this Claim in plaintiff‟s
favour.
172. Additionally, the plaintiff himself in his application for EOT-Part-I
(Exhibited as Ex. P3) dated 12.05.1997 made an undertaking that he
will not claim anything extra due to the said delay. Hence, this Claim
of the plaintiff is not only an unsubstantiated claim but also contrary to
his own undertaking recorded in the said document.
173. In this view of the matter, this Claim of plaintiff is wholly untenable
and devoid of merit, accordingly, the same is rejected.
Claim No. 5: Loss of profit due to prolongation of the contract.
174. The plaintiff in this Claim is seeking of Rs. 4,56,802/- as interest
calculated on loss of profit due to the prolongation of the Contract

16
(2015) 4 SCC 136.
17
1963 SCC OnLine SC 49.
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caused by the delay in its completion owing to breach of its obligations
by the defendant.
175. As per the plaintiff, all the defaults and breaches resulting in delayed
performance of contract for 32 months were attributable to the
defendant only.
176. On this premise, the plaintiff has calculated the cost of work done after
the stipulated (initially decided) date of completion as Rs. 1,90,33,415/-
and has calculated the loss of profit at rate of 10% of the said amount
i.e., Rs. 19,03,341 for loss of profit.
177. The plaintiff by way of this Claim seeks interest on Rs. 19,03,341/-
(alleged loss of profit) at the rate of 18% p.a. The plaintiff has
calculated the interest on a staggered basis by reducing the period of 32
months to 16 months and has accordingly Claimed amount of Rs.
4,56,802/- as interest.
178. Per Contra, the defendant in its written statement has stated that no
loss of profit was suffered by the plaintiff and the plaintiff should be
put to strict proof of the same. The said loss as claimed by the plaintiff
should have been shown in the ITR of the plaintiff and in absence of
the same, this Claim of the plaintiff remains unsubstantiated.
179. The defendant has also contended that this Claim of the plaintiff is
vague in its nature as the plaintiff seems to be confused regarding what
he wishes to claim because the heading of the Claim in the plaint is
different from what he actually appears to be claiming from the
description of the Claim. The plaintiff appears to be Claiming interest
on loss of profit but has not indicated the basis on which the said
amount of Rs. 4,56,802/- towards interest is calculated. In any case
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even if a loss is alleged, the same must be directly attributable to the
conduct of the defendant to hold it accountable.
180. At the outset, I find merit in the contention of the defendant that the
Claim along with its calculation is very poorly described in the plaint
making it difficult to discern for the purpose of adjudication. The
plaintiff has phrased the heading of the Claim in such a manner to
indicate that the plaintiff is Claiming loss of profit itself. Even the
calculation of the interest remains unexplained in the Plaint and
affidavit by way of evidence furnished by the plaintiff (PW1).
181. It was only in the written arguments dated 06.08.2025 filed by the
plaintiff that the plaintiff clarified its stand qua this Claim and stated
that the plaintiff is seeking recovery of interest on loss of profit at the
rate of 18% calculated for a period of 16 months on staggered basis.
182. In view of the aforesaid, for the purpose of Claiming interest on loss of
profit, the plaintiff is required to prove the loss of profit by cogent
evidence and then the basis of calculation of interest adopted by him.
183. Mr. Jai Singh (PW1) in his evidence by way of an affidavit only
reiterated the submissions already set out in the plaint and was put to
cross-examination on 13.01.2016, wherein he admitted that he has not
filed any separate details in his ITR qua the loss of profit suffered by
the plaintiff. The relevant paragraph of the record of cross-examination
reads as under:
―… It is wrong to suggest that the plaintiff never suffered
any loss on profit for the assignment in dispute. I have not
reflected any separate detail wrt loss of profit suffered by
me, in my ITR. (vol. The ITR reflects total detail of my profit
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and loss account). It is wrong to suggest that the Claims
mentioned in the present suit were not demanded by me
during the contract period. It is wrong to suggest that I am
deposing falsely.‖
184. The Hon‟ble Supreme Court in the judgment of Unibros v. All India
18
Radio , laid down four conditions only upon satisfaction of which loss
of profit can be decreed in favour of the plaintiff. The relevant
paragraphs of the judgment read as under:
―16. To support a Claim for loss of profit arising from a
delayed contract or missed opportunities from other
available contracts that the appellant could have earned
elsewhere by taking up any, it becomes imperative for the
Claimant to substantiate the presence of a viable
opportunity through compelling evidence. This evidence
should convincingly demonstrate that had the contract been
executed promptly, the contractor could have secured
supplementary profits utilizing its existing resources
elsewhere.
17. One might ask, what would be the nature and quality of
such evidence? In our opinion, it will be contingent upon
the facts and circumstances of each case. However, it may
generally include independent contemporaneous evidence
such as other potential projects that the contractor had in
the pipeline that could have been undertaken if not for the

18
2023 SCC OnLine SC 1366.
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delays, the total number of tendering opportunities that the
contractor received and declined owing to the prolongation
of the contract, financial statements, or any clauses in the
contract related to delays, extensions of time, and
compensation for loss of profit. While this list is not
exhaustive and may include any other piece of evidence that
the court may find relevant, what is cut and dried is that in
adjudging a Claim towards loss of profits, the court may not
make a guess in the dark; the credibility of the evidence,
therefore, is the evidence of the credibility of such Claim.
…
19. The law, as it should stand thus, is that for Claims
related to loss of profit, profitability or opportunities to
succeed, one would be required to establish the following
conditions : first, there was a delay in the completion of the
contract; second, such delay is not attributable to the
Claimant; third, the Claimant's status as an established
contractor, handling substantial projects; and fourth,
credible evidence to substantiate the Claim of loss of
profitability. On perusal of the records, we are satisfied that
the fourth condition, namely, the evidence to substantiate
the Claim of loss of profitability remains unfulfilled in the
present case.‖
185. In view of Unibros (Supra) and a catena of judicial authorities
including those discussed for adjudication of the Claim No. 4, it is
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settled law that for Claiming loss of profit, the Claimant/plaintiff is
required to prove both breach of Contract and actual resultant loss by
leading cogent and credible evidence, to substantiate his aforesaid
Claim. However, the demand raised by the plaintiff by way of this
Claim is merely in the form of assertion without any cogent evidence to
prove the same.
186. It is settled law that estimation formulas also cannot be applied by
Court of Law/ Arbitrator in vacuum to award Claims of this nature
when they are not substantiated by any evidence for proving actual loss
of profit.
187. In the present case, the plaintiff in his cross-examination has accepted
that he has not reflected any separate details in his ITR records with
respect to the loss of profit over which interest is Claimed and he has
also not led any documentary evidence, let alone any credible evidence
to prove the actual loss and to support his Claim for interest on loss of
profits.
188. In view of the conditions laid down in the judgment of Unibros
(Supra) especially the fourth condition i.e., the presence of credible
evidence to substantiate the Claim of loss of profit, the same is not
fulfilled by the plaintiff in the present case. He has failed to lead any
evidence at all in order to prove loss of profit, thus, making his Claim
sans evidence.
189. Additionally, the plaintiff has not led any evidence at all to show:
A. The reason for calculating interest at the rate of 18% p.a.
B. The duration of 16 months which he has adopted for the purpose of
calculating interest on staggered basis.
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190. Thus, in absence of any evidence to show loss of profit or prove
calculation of interest on it, the Claim of the plaintiff seeking interest
on such loss of profit is rejected.
Claim No. 6: Payment of compensation under clause 10CC of the
agreement. (Rs. 26,68,300/-)
191. By way of this Claim, the plaintiff is not contending that no payment
was made to him under Clause 10CC rather the plaintiff is disputing the
methodology of calculation made by the defendant.

192. The plaintiff contends that the defendant has prepared and paid
escalation in terms of Clause 10CC but with certain fallacies:
A. Quantum of work taken for each quarter was not correctly reflected.
B. Certain bills were allocated to earlier quarters, even though the
work/index position would have entitled him to a higher rate in later
quarters when cost indices were higher, thereby placing the plaintiff
in a disadvantageous position.
193. Additionally, the escalation should be payable not only on the final bill
amount but also on claims relating to work done but not paid. The
plaintiff on this premise has worked out an additional sum of Rs.
26,68,300/- as payable to him under Clause 10CC.
194. Defendant on the other hand has reiterated its stand that the entire
amount due and payable under Clause 10CC was paid to the plaintiff
and there is nothing more payable on its part. The plaintiff has also not
supported his Claim by proper calculation or basis on which its Claim
is based.
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195. In any case, Clause 10CC is a price variation clause for compensating
any increase or decrease in the cost of material and labour, and does not
cover the compensation for delay or overheads, loss of opportunity, etc.
196. Mr. Jai Singh (PW1) in his affidavit by way of evidence has reiterated
the averments already made in the plaint and the relevant portions of
the affidavit read as under:
―6. PAYMENT OF COMPENSATION UNDER CLAUSE 10
CC OF THE AGREEMENT
Clause 10 CC of the agreement provides for compensation
to the parties for rise and fall in the prices and wage rate of
labour incorporated in the execution of the work. A proper
procedure has been laid out therein. The defendant
prepared bills for compensation payable to the plaintiff in
view of the rise in prices of material and wage rate of
labour with reference to the same prevailing on the date of
submission of tender offer for each quarter for the currency
of contract agreement and also for the extended period in
view of the extension of time having been granted by the
defendant without any levy of compensation under clause 2
of the agreement. However, the defendant did not include
the correct amount of work as per proposed paid bill during
each of the quarter while working out the compensation.
Furthermore, the defendant included amounts of certain
bills in earlier quarters and in view of the rise in subsequent
quarters of the cost indices which form the basis of payment
of compensation, I have been placed in a disadvantageous
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position and have consequently, suffered damages. It is
further stated in terms of the contract that I am also entitled
to be paid on the amount of the final bill and also
compensation under clause 10CC on the amount of claims
relating to the work done but not paid for by the defendant.
The total amount payable to me on this count comes to Rs.
26, 68, 300/-.‖
197. Mr. M.K. Gupta (DW1) maintained his consistent stand that the entire
amount payable under Clause 10CC is already paid to the plaintiff and
the same was duly accepted by the plaintiff. Hence, nothing more is
payable to the plaintiff. Relevant paragraphs of the affidavit read as
under:
―7. The delay in the completion of work was not in any
manner attributable to the Defendant- DDA or its officers
or anv agency related to the Defendant. The Completion
certificate was issued after grant of extension of time uptil
22.02.1997 without levy of compensation under clause 2 of
the agreement at the request of the Plaintiff. The payment
under clause 1OCC was released till the completion of work
th
and duly accepted by the Plaintiff vide 13 RA.Bill (10CC),
th th th
14 RA Bill (10CC), 15 RA Bill (10CC) and 16 RA Bill
(10CC) which are marked as Ex DW1/3, DW1/4, DW1/5
and DW1/6 respectively.
8. I say that the Plaintiff is not entitled to claim anything
more than what has been paid under clause 10CC of the
agreement.
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…
12.The quoted rates as per the tender submitted and the
additional payment under clause 10CC completely takes
care of the extra expenditure that may have to be incurred
by the contractor and this includes the overheads in the
form of staff and machinery also. Once the payment under
clause 10CC has been paid, nothing more can be claimed
by the Plaintiff. The Plaintiff was well aware of the facts
when quotation was given in response to the NIT. There is
no clause in the agreement to provide for any extra claim as
is being put forth by the Plaintiff. The entire payment under
clause 10CC has been paid to the Plaintiff hence no further
claims can be raised. No work has been got done beyond the
scope of the agreement hence the Plaintiff cannot raise any
claims regarding the same.
…
14.All payments have been paid as per the terms and
conditions of the Agreement. All payments have been duly
accepted by the Plaintiff and no objection was raised while
accepting payments.‖
198. When PW1 was put to cross examination on 11.09.2015, it was
admitted by him that he has received certain payments under Clause
10CC for the bills that he raised. The relevant portion of the cross-
examination reads as under:
―After completion of the contract, I had taken the Clearance
Certificate from the Labour Office. (Vol. same has not been
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filed on court record). I cannot say with certainty as to
whether I can produce that Clearance Certificate now in
this court. (Vol. as I would have to check my records as
such certificates are quite older i.e. 20-22 years back). It is
correct that I had received certain payments under Clause
10CC. (Vol. for the bills I had raised in that regard).‖
199. Further, PW1 on 14.09.2015 was again put to cross-examination
wherein he stated that the defendant did not pay the entire amount
under Clause 10CC for the period which was extended in order to
complete the Contract. The relevant portions of the cross-examination
recorded on 14.09.2015 read as under:
―…
It is incorrect to suggest that I was paid the entire amount
for the period that was extended for concluding the contract
under the Clause 10 CC. …
It is correct that the DDA gave me compensation with
respect to extension of time under Clause 10 CC. (Vol. it
was not paid in full). …‖
200. From a conspectus of the averments made in the plaint along with the
evidence placed on record and arguments made before this Court in
support of this Claim, it is clear that the plaintiff has denied the
sufficiency/ disputed the calculation of compensation paid under
Clause 10CC but at the same time has not furnished any basis or
calculations or breakdown of the amount claimed (i.e., Rs. 26,68,300/-)
to show that the same is due and payable to the plaintiff in addition to
the amount already paid under Clause 10CC by the defendant.
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201. The onus of proof for this Claim lay on the plaintiff.
202. The defendant has produced specific RA Bills evidencing payments
made under Clause 10CC, which are exhibited as Ex DW1/3, DW1/4,
DW1/5 and DW1/6 respectively. On the other hand, the plaintiff except
for making bald averment and disputing the stand of the defendant has
not led any evidence much less cogent evidence to show:
A. Any further amount due and payable to the plaintiff.
B. Payments made to the plaintiff by the defendant under clause 10CC
were wrong/insufficient.
203. In this view of the matter, this Claim of the plaintiff is bereft of any
proof, evidence and particulars, so as to entitle the plaintiff to this
Claim.
Claim No. 7: Cost of work done beyond the scope of agreement but
not paid for.
204. In this Claim, the plaintiff is seeking to recover the cost of items of
work which were executed as per the directions of the defendant but are
beyond the scope of the Agreement and remain unpaid.
205. These Claims qua different items were argued by the defendant to be
raised as an afterthought because bills were frequently submitted for a
period of 18 months yet the plaintiff omitted to include these items.
206. The onus of proof with respect to each sub-claim is on the plaintiff.
Cost of Extra Thickness of Plaster
207. As per the plaintiff, this part of the Claim No. 7 is qua the thickness of
plaster in respect of item No. 7.4 wherein the base plaster was 15 MM
instead of 12 MM, which was contemplated in the items of work. The
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same was done as per directions of the defendant. Hence, plaintiff
seeks recovery of Rs. 20,980/- for 4196.36 sq. mtrs.
208. The defendant on the other hand has denied the fact that 15 MM plaster
was provided and as per Clause 42(ii) of the Agreement no extra
payment is payable. Also, the plaintiff was required to maintain a
cement register in terms of Clause 3.1.5 of the Agreement. Clause 3.1.5
reads as under:
―3.1.5 The contractor (J.B. C-1) should maintain the
Register for cement, paint and other Registers as required
by the Engineer-in-Charge and these should be signed by
the contractor or his authorised agent and the Junior
Engineer-in-Charge of the work.‖
209. PW1 in his affidavit by way of evidence has reiterated the averment
made in the plaint verbatim.
210. My attention has been drawn to Clause 3.1.5 by the defendant from a
perusal of which it seems that the plaintiff was required to maintain
registers for cement, paint, etc. which could have been produced by the
plaintiff for the purpose of proving this Claim but the same has not
been done. Plaintiff has not placed reliance on any documentary
evidence in support of his Claim for proof of actual cost of extra
thickness of the plaster.
211. The onus of proof with respect to this Claim lay on the plaintiff. Once,
the defendant has denied that 15 MM plaster was provided, the plaintiff
had to lead cogent evidence:
A. To show laying of 15 MM of plaster, and
B. The costs incurred therein.
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212. The plaintiff has not led any evidence to show either of the two things.
In the absence of any evidence, this sub-claim stands rejected.
Centering and shuttering for DPC (Item No. 2.4)
213. The plaintiff is claiming an amount of Rs. 2123/- towards the centering
and shuttering provided for laying of DPC, which is beyond the scope
of Agreement, hence, claimed as an extra item.
214. The defendant with respect to this Claim has contended that the work
was carried out as per the item of Agreement and CPWD specifications
wherein rates included the cost of materials and labour involved in all
operations. Thus, nothing extra is payable for centering and shuttering.
215. PW1 in his affidavit by way of evidence only stated that he had to
provide centering and shuttering for laying of DPC which was beyond
the scope of Agreement and no questions were put to PW1 with respect
to this Claim.
216. I am of the view that the plaintiff has fleetingly raised this Claim
without explaining the particulars and without leading any evidence to
show as to how the work of centering and shuttering on which this
Claim is based, falls outside the scope of Agreement. The plaintiff has
also failed to provide cogent evidence for calculation and expense of
Rs. 2123/- as claimed in the present claim.
217. Since, the onus to prove this Claim was on the plaintiff and the plaintiff
has failed to discharge the said onus, the present Claim cannot be
allowed.
Cost of Yamuna Sand (Item No. 1.3)
218. The plaintiff claims Rs. 26,000/- (for 325 c.m. at Rs. 80/per c.m.)
towards the Yamuna Sand provided for the work, which was not
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contemplated under the Agreement and was required for being filled in
the plinth, etc.
219. The defendant in its written statement has denied the said Claim on the
ground of falling outside the terms of the Agreement and CPWD
specifications.
220. PW1 in his affidavit by way of evidence only reiterated the contents of
the plaint to state that the description of item takes precedence over the
specific provision which does not provide for supply of Yamuna Sand.
Since plaintiff has provided the said item, he is entitled to award of this
Claim. The relevant paragraph reads as under:
―I have provided Yamuna Sand for the work. The
description of item of the work which takes precedence as
per specific provisions in the agreement does not provide
for supply of the same required to be filled in plinth etc. and
since this was supplied by me, I am entitled to be paid for
the same, and the cost thereof is payable as under:-
325 c.m @ Rs. 80/- per c.m, = = 26,000/-.‖
221. No questions with respect to this Claim were put to PW1 during the
cross-examination.
222. The defendant in its written statement with respect to this sub-claim for
use of Yamuna sand has stated as under:
―iii). Cost of Yamuna Sand (Item No. 1.3).
The claim is denied as per terms and conditions of the
agreement and CPWD specification because the item in
question does not cover in the clauses of the agreement
executed inter se the parties.‖
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SRIVASTAVA
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223. This Claim with respect to use of Yamuna Sand is only fleetingly
raised and is an unsubstantiated claim as the plaintiff has not led any
evidence to prove that Yamuna Sand was actually supplied and used.
Once the defendant has denied the claim, it was upon the plaintiff to
prove the same by leading cogent evidence, except for an averment in
the plaint and affidavit, there is nothing to support his claim. Hence, the
said Claim is rejected.
Cost of providing SCI Collars

224. The plaintiff also claims Rs. 47,020/- (Rs. 28,793/- + 63.3%) towards
the SCI Collars of 100 MM and 75 MM provided for proper
functioning of drainage system and the same is stated to be payable
under Clause 12 of the Agreement.
225. Defendant in its written statement has denied this Claim and stated that:
A. The defendant has already paid the amount payable towards this
work under item No. 11.5 to 11.12 of the Agreement and the
amount as claimed is over and above the sum already paid.
B. Nothing more is due and payable because as per Special Condition
No. 3.14 of the Agreement, the plaintiff was required to fix SCI
collars required for fixing SCI pipes for free.
226. PW1 in his affidavit by way of evidence reiterated the averments of the
plaint and provided the calculation of the claimed amount. No
questions were put to PW1 in his cross examination with respect to this
Claim.
227. The plaintiff has placed reliance on Clause 12 of the Agreement which
provides for “alteration in specification and designs”, without
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explaining how the Claim falls/is payable under the relevant Clause of
the Agreement.
228. The plaintiff qua this sub-claim was required to lead evidence as to the
costing of the SCI collars, in the absence of any evidence with respect
to the same, this Claim cannot be allowed.
Claim No. 8: Overweight Steel
229. This Claim is premised on the basis that the steel of 6 mm to 12 mm
size was supplied by the defendant and the same was payable on the
basis of its actual weight. As per the plaintiff, the same was overweight
and the payment for excess weight of steel so supplied is due and
payable to the plaintiff.
230. On the other hand, the defendant has contended that the plaintiff has
st th
duly accepted bills from 1 bill to 30 bill without raising any protest
regarding the issue of overweight steel, thereby implying that he had no
grievance and the present Claim is only an afterthought.
231. Also, the defendant has contended that there is no record available at
the site which could prove the fact of steel being overweight.
Moreover, the payment of steel is covered within the permissible
variations in terms of Clause 42-III of the Agreement.
232. PW1 in his affidavit by way of evidence reaffirmed the averments of
the plaint and relied upon Steel Weighment Register (purportedly
signed by officials of DDA) exhibited as Ex. PW1/88 (also marked as
exhibit Ex. P10) to substantiate his submissions.
233. DW1 also in his affidavit by way of evidence reiterated the contents of
written statement and maintained his consistent stand that all payments
have been made as per the Agreement and the same has not been
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objected, hence, nothing more is payable. No questions were to him
with respect to this Claim in cross-examination.
234. Plaintiff in this Claim has not explained or worked out the calculation
of Rs. 1,50,000/- claimed towards the overweight steel supplied to it.
He has arrived at the said amount without substantiating it with any
supporting evidence, calculation sheet or explanation as to how the
alleged excess weight translates into the claimed amount of Rs.
1,50,000/-.

235. Even if I were to agree with the contention of plaintiff regarding supply
of overweight steel, the amount claimed to the tune of Rs. 1,50,000/- by
the plaintiff cannot be accepted in absence of any evidence/explanation
showing its computation.
236. Additionally, the computation of the amount claimed cannot be
comprehended from a perusal of Steel weighment register (Ex.
PW1/88, Ex. P10).
237. In my view, a mere assertion that certain overweight quantities were
supplied, without properly quantifying the Claim either in the plaint or
in affidavit by evidence, and without providing a calculation for the
same supported by credible evidence, is insufficient to entitle the
plaintiff to the claimed amount.
238. The plaintiff was required to establish with clarity:
A. The excess quantity supplied.
B. The rate on the basis of which the said Claim is calculated
aggregating to Rs. 1,50,000/-.
239. Additionally, I find merit in the contention of the defendant that the
plaintiff ought to have been objected/protested with respect to this issue
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of overweight steel to the duly paid bills which was not so done, thus,
this argument of the plaintiff is nothing but an afterthought.
240. In absence of any precise quantification of this Claim, it also cannot be
decided whether the variation was covered in terms of Clause 42 of the
Agreement i.e., 3% or 2% plus/minus variation allowed in terms of the
Agreement. Clause 42 of the Agreement reads as under:
―CLAUSE 42
(i) The contractor shall see that only the required quantities
of materials are got issued. Any such material remaining
unused and in perfectly good condition at the time of
completion or determination of the contract shall be
returned to the Engineer-in-Charge at a place where
directed by him, by a notice in writing under his hand, if he
shall so require. Credit for such materials will begiven at
the prevailing market rate not exceeding the amount
charged from him excluding the element of storage charges
@ …% levied at the time of issue of materials to him. The
contractor shall also not be entitled to cartage and
incidental charges for returning the surplus materials from
and to the above said stores.
(ii) After completion of the work the theoratical quantity of
cement to be used in work shall be calculated on the basis of
statement showing quantity of cement to be used in different
items of work, provided in Delhi Schedule of Rate, …
printed by the CPWD. In case any item is executed for
which the standard constants for the consumption of cement
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are not available in the above mentioned statement or
cannot be derived from this statement, the same shall be
calculated on the basis of standard formula to be laid down
by the Superintending Engineer of the circle concerned.
Over this theoretical quantity of cement, shall be allowed a
variation upto 3% plus/minus for works estimated cost of
which as put to tender is not more than Rs. 5 lacs and upto
2% plus minus for works the estimated cost of which put to
tender is more than Rs. 5 lacs. The difference in the quantity
of cement actually issued to the contractor and the
theoretical quantity including authorised variation, if not
returned by the contractor, shall be recovered at twice the
issue rate, without prejudice to the provision of the relevant
conditions regarding return of materials governing the
contract. In the event of it being discovered that the quantity
of cement used is less than the quantity ascertained as
herein before provided (allowing variation) on the minus
side as stipulated above), the cost of quantity of cement not
so used, shall be recovered from the contractor on the basis
of stipulated issue rates and cartage to site.
(iii) The provision of foregoing sub-clause shall apply
mutatis-mutandis in the case of steel reinforcement of
structural steel sections (each diameters/section or category
shall be considered seperately) except that the theoretical
quantity of the steel shall be taken as the quantity required
as per design or as authorised by Engineer-in-Charge
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including authorised lampages plus 3% wastage due to
cutting into pieces. Over this theoretical quantity 2%
plus/minus shall be allowed as variation due to wastage
being more or less."
241. The onus to prove this Claim lay on the plaintiff. In absence of any
computation of the claimed amount substantiated with credible
evidence, plaintiff has failed to discharge this onus. Accordingly, the
Claim of the plaintiff cannot be adjudicated in his favour and is
accordingly rejected.
Claim No. 9: Illegal Deductions for alleged deficiencies, Rs.
1,26,876/-
242. This Claim is based on the illegal deduction made by the Executive
Engineer of the defendant. This deduction is illegal as there were no
deficiencies and the entire work was executed as per specifications and
under supervision of defendant.
243. It is the case of the defendant that the said deduction was made as per
reduction item statement approved by the Superintending Engineer
(SE) of the defendant in terms of Clause 25B of the Agreement. Clause
25B reads as under:
―CLAUSE 25B. The decision of superintending Engineer
regarding the quantum of reduction as well as justification
there of in respect of rates for sub standard work which may
be decided to be accepted will be final and would not be
open to arbitration‖
244. PW1 in his affidavit by way of evidence only reiterated the averments
of the plaint in verbatim and when he was put to cross examination he
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
18:36
CS(OS) 457/2000 Page 122 of 139

denied the allegation of deposing falsely and stated that the explanation
of illegal deduction is a matter of record. The relevant paragraph of the
cross-examination recorded on 13.01.2016 reads as under:
―It is wrong to suggest that I have deposed falsely to the
effect that DDA has made illegal deductions wrt Claim no.9,
as mentioned by me in the plaint. It is a matter of record if I
have nor have not explained such illegal deductions in my
claim or not. (Vol. If it is not written, it may be taken
accordingly).‖
245. DW1 in addition to reiterating the submissions of written statement,
maintained its stand that the entire amount is paid and accepted and
nothing more is payable.
246. From a perusal of Clause 25B, it is clear that the Agreement
contemplated to confer Superintending Engineer of the defendant with
power to adjudge not only the quantum of reduction but also
justification for the same with respect to sub-standard work. The
decision of SE is also stated to be final and non-arbitrable.
247. Notably, plaintiff with respect to present Claim has failed to draw my
attention to any specific document whereby this illegal deduction for
alleged deficiency is explained. The amount claimed is also not
substantiated by way of evidence.
248. The plaintiff has failed to show as to how the deductions made by SE
of the defendant were incorrect/wrong and additionally, Clause 25B
raises a presumption of finality attached with the decision of the SE.
Even though the finality in terms of Clause 25B operates only for the
purpose of arbitration, the same, to my mind, is also operational for the
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
18:36
CS(OS) 457/2000 Page 123 of 139

purpose of the present suit because there is no credible evidence placed
on record by the plaintiff except for a mere assertion that there were no
deficiencies, in order to dislodge the said presumption.
249. Accordingly, the present Claim with respect to illegal deductions for
alleged deficiencies is rejected.
Claim No. 10: Refund of illegal withholding, Rs. 3,29,693/-.
250. By way of this Claim, the plaintiff is seeking refund of amount which is
illegally withheld from payment of R.A. Bills for work done along with
interest at the rate of 18% p.a. from the date of work being notified as
complete.
251. It is the case of the plaintiff that certain amounts were withheld from
the bills which were prepared and paid during the execution of the
work. Such withholding after completion of work is illegal as the work
was executed in terms of the Agreement and certificate to this effect is
also recorded on the R.A. Bills.
252. On the other hand, defendant has raised this contention that all the R.A.
Bills were duly accepted by the plaintiff without protest and all
amounts are withheld in accordance with the provisions of the
Agreement most of them being withheld on account of quality control
and excess use of cement. The relevant portion of the written statement
providing bill-wise remarks read as under:
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
18:36
CS(OS) 457/2000 Page 124 of 139

253. PW1 in his affidavit by way of evidence deposed exactly in a similar
manner to the averments mentioned in the plaint. The bill-wise
distribution of withheld amount reads as under:
―R.A. Bill No. Date Amount
withheld
4 27.11.93 Rs. 36,412.00
20 2.5.95 Rs. 60,000.00
Rs. 1.988.00
22 7.7.95 Rs. 1.988.80
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
18:36
CS(OS) 457/2000 Page 125 of 139

23 19.8.95 Rs. 133.76
24 29.9.95 Rs. 10,000.00
25 2.11.95 Rs. 25,000.00
26 14.12.95 Rs. 10,000.00
27. 2.96 Rs. 10,000.00
28. 30.3.96 Rs. 95,899.00
30 2.97 Rs. 79,738.00
----------------------
Rs. 3,29,693.00
----------------------
254. When PW1 was put to cross-examination on 13.01.2016, he stated that
he cannot recollect if the defendant has paid the entire amount under
Claim No. 10. PW1 also admitted that he accepted all the R.A. Bills
and payments without any protest to the same. The relevant paragraph
of the cross-examination reads as under:
―The constitution of JS Construction Company is sole
proprietorship concern. It is wrong to suggest that no
amount has been withheld by the DDA. I cannot recollect,
but it is a matter of record that if the defendant has paid
entire amount concerning claim no. 10, as mentioned by me
in the plaint. It is correct that I have accepted all the
running account bills / payments without any protest, as far
as claim no. 10 is concerned. (Vol. It is practice that
running account bills are given from time and nothing is
final).‖
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
18:36
CS(OS) 457/2000 Page 126 of 139

255. DW1 only reiterated the averments of the written statement and stated
that as the entire money payable is paid and duly accepted without any
objections, nothing more is payable. No questions were put to him with
respect to this Claim.
256. Notably, plaintiff has not addressed any arguments in the written
arguments with respect to this Claim.
257. From a conspectus of the aforesaid, it is clear that amounts withheld
qua 3 bills i.e., R.A. Bills bearing Nos. 4, 20, and 30 were released by
the defendant to the plaintiff, rendering this Claim partly infructuous.
The other bills are withheld on account of either excess use of cement
or quality control.
258. The Plaintiff (PW1) in his cross examination duly admitted that he has
not objected/protested to any of the R.A. Bills at the time of payment.
In absence of any protest, this Claim for withholding of amounts is an
afterthought. The plaintiff cannot argue the interim nature of R.A. Bills
to protect this Claim as in any case nothing stopped the plaintiff from
objecting/protesting to the withholding of the said amount.
259. At the cost of repetition from other portions of this judgment, the
plaintiff qua this Claim also has only made a mere bald assertion that
there were no deficiencies in the work executed by him. The plaintiff
has also failed to specifically address the grounds on which the
amounts are stated to be withheld by the defendant.
260. The onus of proof for this Claim lay on plaintiff not only to prove that
an amount had been deducted but also that the deduction was
unauthorised. In absence of any credible and cogent evidence, a mere
assertion of the plaintiff cannot be accepted to award/decree this Claim
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
18:36
CS(OS) 457/2000 Page 127 of 139

in his favour. Plaintiff has not led any evidence to show that there were
no deficiencies in the work executed by him. The present Claim is
devoid of any credibility except assertions on part of the plaintiff,
which cannot satisfy the standard of preponderance of probability in his
favour.
261. The plaintiff ought to have challenged the bill-wise deductions with
relevant measurements and evidences to specifically demonstrate that
the deductions were unauthorised or extraneous to the scope of
Agreement.
262. Accordingly, the Claim No. 10 with respect to refund of withheld
amount of bills is rejected.
ISSUE NO. 3: Whether the plaintiff is entitled for the amount
claimed in the suit or any other amounts? OPP
263. In view of the above, Claim No. 1 of the plaintiff is decided in his
favour and the plaintiff is entitled to recovery of Rs. 41,77,809/- along
with interest at the rate of 9 % per annum from the date of raising of the
corrected final bill, i.e., 10.03.1999 till the date of actual payment.
264. All other Claims are decided against the plaintiff for the reasons as
stated above.
RELIEF
265. For all the aforesaid reasons, the suit is partly decreed in favour of the
plaintiff and he is entitled to recovery of an amount of Rs. 41,77,809/-
towards Claim No. 1 for Payment of final bill, along with interest at the
rate of 9% per annum to be calculated from 10.03.1999 till the date of
actual payment.
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
18:36
CS(OS) 457/2000 Page 128 of 139

266. Accordingly, the suit is decided in the terms set out above. The parties
shall bear their own costs of these proceedings. Pending applications, if
any, stand disposed of.
267. Let a decree be drawn in terms of this judgment.



JASMEET SINGH, J
th
OCTOBER 28 , 2026/SS

















Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
18:36
CS(OS) 457/2000 Page 129 of 139

ANNEXURE
FORM ‘A’
LIST OF WITNESSES
S. No. Name of Witness Whether witness of
plaintiff or defendant
1. Mr. Jai Singh (PW1) Plaintiff
2. Mr. Gaurav Dagar (PW2) Plaintiff
3. Mr. M.K. Gupta (DW1) Defendant

LIST OF DOCUMENTS ON BEHALF OF THE PLAINTIFF

S. No. Exhibit/Mark Date of Exhibit Description of
Exhibit
1. Ex. PW1/A 23.03.2012 Affidavit by way of
evidence on behalf of
PW1.
2. Ex. PW2/A 23.03.2012 Affidavit by way of
evidence of PW2.
3. Ex. PW1/1 also
exhibited as Ex. P1
11.03.2003 Contract Agreement
dated 23.12.1992
bearing No.
47/EE/ED- IV
pertaining to
construction of 176,
MIG House at Kondli,
Group No. 9, Delhi,
including abstract of
cost in (bill of
quantities)

4. Ex. PW1/2 23.03.2012 Letter of acceptance
dated 15.02.1992
5. Ex. PW1/3, Ex. P2, Ex. 11.03.2003 Copy of measurement
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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CS(OS) 457/2000 Page 130 of 139

1/84 book and completion
certificate
6. Ex. P3 11.03.2003 Application for
Extension of time Part
1
7. Ex. P4, P5 & P6 11.03.2003 Application for
Extension of time Part
2
8. Ex. PW1/87, Ex. P7,
Ex. P8, Ex. P9.
11.03.2003 Reply of the Executive
Engineer dated
25.06.1994 to letter of
the plaintiff dated
20.06.1994.
9. Ex. PW1/88, Ex. P10,
Ex. P11
11.03.2003 Copy of steel
weighment register
10. Ex. P12 11.03.2003 Defendant‟s letter
dated 09.08.1993.
11. Ex. P13 11.03.2003 Defendant‟s letter
dated 24.01.1994.
12. Ex. PW1/85 (colly) 23.03.2012 Final bill dated
10.03.1999 issued by
Plaintiff to Executive
Engineer, ED-IV,
DDA.
13. Ex. PW1/86 23.03.2012 Letter dated
20.06.1994 issued by
plaintiff to Executive
Engineer, DDA.
14.
23.03.2012
Letter of the plaintiff
dated 31.03.1993
Ex. PW1/4
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
18:36
CS(OS) 457/2000 Page 131 of 139

15. 23.03.2012 Letter of the plaintiff
Ex. PW1/5
dated 05.04.1993
16. 23.03.2012 Letter of the plaintiff
Ex. PW1/6
dated 23.04.1993
17. Ex. PW1/6 (should have
been exhibited as Ex.
PW1/7)
23.03.2012
Letter of the plaintiff
dated 15.06.1993
18. 23.03.2012 Letter of the plaintiff
Ex. PW1/8
dated 28.07.1993
19. 23.03.2012 Letter of the plaintiff
Ex. PW1/9
dated 27.09.1993
20. 23.03.2012 Letter of the plaintiff
Ex. PW1/10
dated 07.12.1993
21. 23.03.2012 Letter of the plaintiff
Ex. PW1/11
dated 17.01.1994
22. 23.03.2012 Letter of the plaintiff
Ex PW1/12
dated 20.02.1994
23. 23.03.2012 Letter of the plaintiff
Ex. PW1/13
dated 23.02.1994
24. 23.03.2012 Letter of the plaintiff
Ex. PW1/14
dated 24.02.1994
25. 23.03.2012 Letter of the plaintiff
Ex. PW1/15
dated 11.03.1994
26. 23.03.2012 Letter of the plaintiff
Ex. PW1/16
dated 11.04.1994
27. Ex. PW1/17 23.03.2012 Letter of the plaintiff
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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CS(OS) 457/2000 Page 132 of 139

dated 06.05.1994
28. 23.03.2012 Letter of the plaintiff
Ex. PW1/18
dated 19.05.1994
29. 23.03.2012 Letter of the plaintiff
Ex. PW1/19
dated 28.05.1994
30. 23.03.2012 Letter of the plaintiff
Ex. PW1/20
dated 01.06.1994
31. 23.03.2012 Letter of the plaintiff
Ex. PW1/21
dated 19.06.1994
32. 23.03.2012 Letter of the plaintiff
Ex. PW1/22
dated 20.06.1994
33. 23.03.2012 Letter of the plaintiff
Ex. PW1/23
dated 11.07.1994
34. 23.03.2012 Letter of the plaintiff
Ex. PW1/24
dated 14.07.1994
35. 23.03.2012 Letter of the plaintiff
Ex. PW1/25
dated 09.08.1994
36. 23.03.2012 Letter of the plaintiff
Ex. PW1/26
dated 21.10.1994
37. 23.03.2012 Letter of the plaintiff
Ex. PW1/27
dated 29.11.1994
38. 23.03.2012 Letter of the plaintiff
Ex. PW1/28
dated 17.06.1994
39. 23.03.2012 Letter of the plaintiff
Ex. PW1/29
dated 18.06.1994
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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CS(OS) 457/2000 Page 133 of 139

40. 23.03.2012 Letter of the plaintiff
Ex. PW1/30
dated 21.06.1994
41. 23.03.2012 Letter of the plaintiff
Ex. PW1/31
dated 08.08.1994
42. 23.03.2012 Letter of the plaintiff
Ex. PW1/32
dated 11.10.1994
43. 23.03.2012 Letter of the plaintiff
Ex. PW1/33
dated 12.07.1994
44. 23.03.2012 Letter of the plaintiff
Ex. PW1/34
dated 19.10.1994
45. 23.03.2012 Letter of the plaintiff
Ex. PW1/35
dated 21.01.1995
46. 23.03.2012 Letter of the plaintiff
Ex. PW1/36
dated 28.01.1995
47. 23.03.2012 Letter of the plaintiff
Ex. PW1/37
dated 09.02.1995
48. 23.03.2012 Letter of the plaintiff
Ex. PW1/38
dated 13.02.1995
49. 23.03.2012 Letter of the plaintiff
Ex. PW1/39
dated 05.05.1995
50. 23.03.2012 Letter of the plaintiff
Ex. PW1/40
dated 11.08.1995
51. 23.03.2012 Letter of the plaintiff
Ex. PW1/41
dated 04.11.1995
52. 23.03.2012 Letter of the plaintiff
Ex. PW1/42
dated 05.11.1995
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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CS(OS) 457/2000 Page 134 of 139

53. 23.03.2012 Letter of the plaintiff
Ex. PW1/43
dated 26.04.1995
54. 23.03.2012 Letter of the plaintiff
Ex. PW1/44
dated 20.02.1996
55. 23.03.2012 Letter of the plaintiff
Ex. PW1/45
dated 26.02.1996
56. 23.03.2012 Letter of the plaintiff
Ex. PW1/46
dated 17.05.1996
57. 23.03.2012 Letter of the plaintiff
Ex. PW1/47
dated 13.07.1994
58. 23.03.2012 Letter of the plaintiff
Ex. PW1/48
dated 14.07.1994
59. 23.03.2012 Letter of the plaintiff
Ex. PW1/49
dated 10.08.1994
60. 23.03.2012 Letter of the plaintiff
Ex. PW1/50
dated 05.09.1994
61. 23.03.2012 Letter of the plaintiff
Ex. PW1/51
dated 20.10.1994
62. 23.03.2012 Letter of the plaintiff
Ex. PW1/52
dated 26.12.1995
63. 23.03.2012 Letter of the plaintiff
Ex. PW1/53
dated 15.05.1996
64. 23.03.2012 Letter of the plaintiff
Ex. PW1/54
dated 16.05.1996
65. 23.03.2012 Letter of the plaintiff
Ex. PW1/55
dated 20.05.1996
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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66. 23.03.2012 Letter of the plaintiff
Ex. PW1/56
dated 21.06.1996
67. 23.03.2012 Letter of the plaintiff
Ex. PW1/57
dated 16.09.1996
68. 23.03.2012 Letter of the plaintiff
Ex. PW1/58
dated 20.08.1997
69. 23.03.2012 Letter of the plaintiff
Ex. PW1/59
dated 27.08.1997
70. 23.03.2012 Letter of the plaintiff
Ex. PW1/60
dated 23.09.1997
71. 23.03.2012 Letter of the plaintiff
Ex. PW1/61
dated 19.12.1997
72. 23.03.2012 Letter of the defendant
Ex. PW1/62
dated 09.08.1993
73. 23.03.2012 Letter of the defendant
Ex. PW1/63
dated 24.01.1994
74. 23.03.2012 Letter of the defendant
Ex. PW1/64
dated 21.03.1994
75. 23.03.2012 Letter of the defendant
Ex. PW1/65
dated 18.04.1994
76. 23.03.2012 Letter of the defendant
Ex. PW1/66
dated 02.05.1994
77. 23.03.2012 Letter of the defendant
Ex. PW1/67
dated 02.05.1994
78. 23.03.2012 Letter of the defendant
Ex. PW1/68
dated 23.05.1994
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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79. 23.03.2012 Letter of the defendant
Ex. PW1/69
dated 06.06.1994
80. 23.03.2012 Letter of the defendant
Ex. PW1/70
dated 15.06.1994
81. 23.03.2012 Letter of the defendant
Ex. PW1/71
dated 29.09.1994
82. 23.03.2012 Letter of the defendant
Ex. PW1/72
dated 02.11.1994
83. 23.03.2012 Letter of the defendant
Ex. PW1/73
dated 23.05.1994
84. 23.03.2012 Letter of the defendant
Ex. PW1/74
dated 08.02.1994
85. 23.03.2012 Letter of the defendant
Ex. PW1/75
dated 10.03.1995
86. 23.03.2012 Letter of the defendant
Ex. PW1/76
dated 01.03.1994
87. 23.03.2012 Letter of the defendant
Ex. PW1/77
dated 02.07.1994
88. 23.03.2012 Letter of the defendant
Ex. PW1/78
dated 17.01.1997
89. 23.03.2012 Letter of the defendant
Ex. PW1/79
dated 17.01.1997
90. 23.03.2012 Letter of the defendant
Ex. PW1/80
dated 15.12.1997
91. Ex. PW1/81 (also
exhibited as Ex.
23.03.2012 Letter of the defendant
dated 02.12.1995
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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PW1/83)
92. Ex. PW1/89 11.09.2015 Notice dated
28.08.1999 issued by
the plaintiff to the
defendant.

LIST OF DOCUMENTS ON BEHALF OF THE DEFENDANT
1. Ex. DW1/1 08.07.2016 Written Statement
2. Ex. DW1/A 08.07.2016 Affidavit by way of
evidence on behalf
of DW1.
3. Ex. DW1/2 08.07.2016 Letter of the
defendant dated
02.12.1994.
th
4. Ex. DW1/3 08.07.2016 13 R.A. Bill
(10CC)
th

5. Ex. DW1/4 08.07.2016 14 R.A. Bill
(10CC)
th
6. Ex. DW1/5 08.07.2016 15 R.A. Bill
(10CC)
th
7. Ex. DW1/6 08.07.2016 16 R.A. Bill
(10CC)
Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
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8. Ex. DW1/7 08.07.2016 Notice Inviting
Tender No.
23/F.O./EZ/99-
2000.
9. Ex. DW1/8 08.07.2016 Award Letter No.
F.11.(226) ED-
4/DDA/ 2000-
2001/749 dated
12.05.2000.

Signed By:ANSH
SRIVASTAVA
Signing Date:28.10.2026
18:36
CS(OS) 457/2000 Page 139 of 139