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2007 DIGILAW 1878 (DEL)

SANGEETA AGARWAL v. BALMER LAWRIE and CO. LTD.

2007-11-12

BADAR DURREZ AHMED

body2007
Judgment BADAR DURREZ AHMED, J (ORAL) 1. This is an application for leave to defend filed on behalf of the defendant. The learned counsel appearing on behalf of the defendant submitted that triable issue arise between the parties and, therefore, unconditional leave to defend ought to be granted to the defendant. He submitted that Oil and Natural Gas Corporation (ONGC) had offered a contract to the defendant in respect of the SCOPE Complex at Delhi. The defendant, in turn, subcontracted part of the work to the plaintiff. Two Letters of Intent were issued successively, first for the 13th floor and then for the 8th floor. These Letters of Intent were dated 19.9.2003 and 26.12.2003. According to he learned counsel for the defendant, the Letters of Intent were issued pursuant to the bids submitted by the plaintiff in response to the notice inviting tender issued on 21.8.2003. The scope of work was clearly spelt out and it was also indicated that the work was to be completed within six weeks. 2. It was also contended that the plaintiff was well aware that the work that was awarded to the plaintiff was a sub-contract of the larger work which was awarded by ONGC to the defendant. This would be apparent on a plain reading of the two Letters of Intent referred to above. It was also indicated in the said letters that the work was to be completed within six weeks from the date of the issuance of the Letters of Intent. One of the defences raised by the defendant in this suit is that the plaintiff did not complete the work in time. To demonstrate this, the learned counsel for the defendant drew my attention to a document at page 43 of the documents file which is a letter written on 6.2.2004 whereby a grievance was made in respect of the slow progress of work. In response the plaintiff sent a reply dated 9.2.2004 wherein it is indicated that the work would be completed on the dates mentioned therein which are subsequent to the six weeks period. It is, of course, the case of the plaintiff that the work could not be completed because of the default on the part of the defendant. The defendant, however, submits that the default, if at all, was on the part of the plaintiff. It is, of course, the case of the plaintiff that the work could not be completed because of the default on the part of the defendant. The defendant, however, submits that the default, if at all, was on the part of the plaintiff. The learned counsel for the defendant then drew my attention to Ext. `A to the leave to defend application which is a statement of accounts which indicates that nothing is due from the defendant to the plaintiff. In that document it is indicated that a sum of Rs 5,87,424/-has been deducted by the defendant from the amounts payable to the plaintiff on account of liquidated damages charged as @ 10% of the gross bill value of Rs 58,74,240.56. 3. The learned counsel for the plaintiff submitted that the deduction on account of liquidated damages by the defendant is uncalled for and the same could not have been done. It is also submitted by the learned counsel for the plaintiff that the present suit itself is on the basis of liquidated damages agreed to between the parties. 4. Considering the submissions made by the learned counsel for the parties, I am of the view that serious triable issues do arise between the parties and, therefore, the defendant would be entitled to grant of leave to defend. However, in order to balance the equities between the parties, it would be appropriate that the purported liquidated damages to the extent of Rs 5,87,424/-which have been deducted by the defendant from the bills payable to the plaintiff be deposited in Court and await orders of the Court. Consequently, this application is disposed of with the direction that the defendant is granted leave to defend on depositing an amount of Rs 5,87,424/-in Court within eight weeks.