V.K.JAIN, J. - (1.) IA No.6410/2006 (by defendant No.1 under Order VII Rule 11 CPC) This is an application under Order VII Rule 11 CPC for rejecting the plaint.
(2.) THE plaintiff has filed this suit for recovery of Rs.33,65,599/-. It is alleged in the plaint that the defendant No.1, which is a Unit of defendant No.2 entered into an Agreement with the plaintiff for supply of 75,000 MT of non levy cement with 10% deviation. Under the Agreement, the supply was to commence on 10.5.1985 and was to be completed by 9.11.1985. It is further alleged that the defendants, however, commenced supply only in July, 1985 and the last supply was made in February, 1987. Clause 2 of the Agreement between the parties provides as under:- "The time allowed for carrying out the supply and the dates of delivery of the materials mentioned in the tender shall be strictly observed by the contractor and shall be deemed to be of the essence of the contract and the contractor shall deliver the materials on or before the dates mentioned in the tender. Should the contractor fail to delivery the materials on or before the stipulated dates, he shall pay as agreed liquidated damages, and not by way of penalty, an amount equal to one per cent or such smaller amount as the Suptdg. Engineer, DDA (whose decision in writing shall be final) may decide on the amount of the estimated cost of the whole work as shown in the tender for every day that the contractor shall exceed the time of the delivery and the delivery of the materials may be in arrears. Provided always that the entire amount of liquidated damges shall not exceed 10% (ten percent) of the estimated cost of the work as shown in the tender." The legal proposition in the matter is well- settled. The Court while considering an application for rejection of the plaint can look into only the averments made in the plaint and the documents filed by the plaintiff. The defence taken by the defendant is not to be considered while examining such an application and validity of the documents filed by the plaintiff also cannot be examined at this stage.
(3.) ADMITTEDLY, the plaintiff invoked arbitration clause contained in the Agreement on 18.3.1991 and an Arbitrator was appointed on 1.5.1991, to adjudicate upon the disputes between the parties. During pendency of the arbitration proceedings, the Executive Engineer of plaintiff/DDA referred the matter to Director (Material Management), whose decision was to be final and binding between the parties in terms of Clause 2 of the Agreement, to decide the amount of liquidated for late supply of the cement. The Arbitrator vide order dated 21.9.2005 took a view that the claim pertaining to Clause 2 of the Agreement was beyond the purview of arbitration. The Director (Material Management) had, in the meanwhile, vide his decision dated 31.8.2004 decided to levy compensation amounting to Rs.924615 on the defendants. Now, the plaintiff has claimed the aforesaid amount of Rs.9,24,615/- along with interest thereon from 18.3.1991 to 1.2.2005 at the rate of 18% per annum, amounting to Rs.24,40,984/-.;