LATE SH. PRAMOD KUMAR JAIN PROPRIETOR OF M/S JAIN ENTERPRISES THROUGH HIS LEGAL HEIRS ORS & ORS. Vs. MUNICIPAL CORPORATION OF DELHI & ANR.
COURT : DELHI HIGH COURT.
CITATION : FAO ( COMM) – 14 / 2023
Judges : HON’BLE Mr. Justice Rajiiv Shakdher .
HON’BLE Mr. Justice Amit Bansal .
Date : 13-09-2024
Appellant :
1.) Mrs. Archana Jain
W/o Late Sh. Pramod Kumar Jain
2.) Sh. Sachin Jain
S/o Late Sh. Pramod Kumar Jain
3.) Sh. Nitin Jain
W/o Late Sh. Pramod Kumar Jain
4.) Sh. Rahul Jain
W/o Late Sh. Pramod Kumar Jain
Respondent – MUNICIPAL CORPORATION OF DELHI AND ORS.
FACTS – Facts for disposal of the present petition are that respondent invited the tender for the execution of work of raising of road from factory no.118 to 115, from factory no.120 to 118 and from MC Primary School to A-98, Wazirpur Industrial Area A block. The petitioners submitted the tenders for the said works which were accepted and the work was awarded to the petitioners by the respondent on various dates. The agreements were executed between the parties. After the mobilization of the resources at three work sites, the petitioners came to know that the work cannot be executed at the respective work sites due to the non-availability of each of the work sites and great opposition from the factory owners of the plots No. 115 to 120. Thereafter the petitioners were directed to execute the work from the factory plot no.140 to MC Primary School which was also partially provided in respect of one work order. In respect of second work order clear site was never provided and the partial site was provided to the petitioners only in June, 2001 and further in respect of third work order original or the alternate site was never provided by the respondent. The petitioners had vide letters dated 22.03.2001 and 30.04.2001 requested the respondent for providing sites for execution of work and also informed the department about the incurring of losses due to non availability of sites, but not a single reply was ever given by the respondent.
It is further stated that the sites of the work orders were not changed at the time of the issue of the work orders which is clear from the letters dated 19.01.2001 and 19.03.2001 written by MCD. After re-mobilization to the new work sites and after overcoming all the hindrances the petitioners were finally able to partially complete the two work orders in the month of October, 2001 and the third work site was never provided to the petitioners. Thereafter the petitioners wrote various letters for payment of the work done, however, no response had been received from the respondents, hence, petitioners invoked the Arbitration Clause vide letter dated 18.02.2008. Despite the notice when the appointing authority did not appoint the Arbitrator, the petitioner filed application before Hon’ble High Court of Delhi which was allowed vide order dated 02.04.2009. No bill was ever sent by the MCD and finally on 30.07.2018 replied that
an amount of Rs.2,84,214 and Rs.2,66,565 is pending due for payment to the petitioner by the respondent.
The respondent filed their reply to the statement of claim wherein they admitted the claim with regard to certain amount due to the petitioners. During the trial the parties filed their evidence and witnesses were also cross examined. The petitioners filed an application for production of documents, however, respondent stated that their records is untraceable and only provided the copies of the Measurement Book and no bill was annexed with the reply.
ISSUES –
Non-Availability of Work Sites:
Issue: Whether the respondent breached the contractual agreement by failing to provide the agreed-upon work sites or alternate sites for the execution of the work.
Consideration: The petitioners’ claim that they could not execute the work due to the non-availability of the sites and the opposition from factory owners, despite the work orders specifying certain sites.
Delayed Site Provision:
Issue: Whether the respondent’s delay in providing the sites and the partial provision of the sites constituted a breach of contract.
Consideration: The petitioners’ claims of delayed site provision and the impact on their ability to complete the work, including the fact that partial site provision occurred only in June 2001.
Failure to Respond to Requests:
Issue: Whether the respondent’s failure to respond to the petitioners’ requests for site provision and their communication about incurring losses constituted a breach of their duty to address such issues.
Consideration: The petitioners’ letters requesting site provision and informing the respondent about the losses incurred, and the lack of response from the respondent.
Completion of Work and Payment Issues:
Issue: Whether the respondent’s failure to make timely payments for the partially completed work and the non-appointment of an arbitrator for dispute resolution constituted a breach of contract.
Consideration: The petitioners’ claims regarding the completion of work, the unpaid amounts, and the invocation of the arbitration clause.
Evidence and Documentation:
Issue: Whether the respondent’s failure to provide adequate documentation, including original bills and complete records, affects the resolution of the claim.
Consideration: The petitioners’ application for production of documents, the respondent’s claim of untraceable records, and the provision of only Measurement Book copies without the accompanying bills.
Arbitration and Legal Proceedings:
Issue: Whether the appointment of an arbitrator and the subsequent legal proceedings were conducted appropriately in light of the respondent’s failure to act.
Consideration: The procedural aspects related to the appointment of the arbitrator and the court’s involvement in resolving the arbitration issue .
COURT ORDERS :
17.01.2023
Parties are directed to file a brief note of written submissions not exceeding five pages with relevant documents/judgments on which they want to rely with relevant portion duly highlighted for the convenience of this Court within four weeks from today.
28.04.2023
Condonationthe delay of 58 days in filing the written submission.
Application is disposed of.
Consequently, written submission on behalf of appellant no.3 is taken
on record.
10 .05 .2023
Written submissions filed on behalf appellants are on record.
Learned counsel for respondents seeks further time and granted four weeks to file written submissions in terms of order dated 17.01.2023. 3.
Renotify on 12.10.2023 under the same caption.
12.10.2023
Learned counsel for the respondents seeks and is granted two weeks’ time to file the Written Submissions.
Re-notify on 09.01.2024.
09.01.2024
There is no representation on behalf of the respondents.
Adverse orders, qua the respondents, are deferred.
In any event, counsel for the appellants seeks accommodation.
Accordingly, list the appeal on 24.04.2024.
24.04.2024
Learned counsel for the respondents says that he will ensure that the written submissions lodged with the Registry are brought on court record prior to the next date of hearing .
List the matter on 13.09.2024.
