The court emphasized that while considering an application under Order VII Rule 11 of the CPC, only the averments made in the plaint and the documents produced along with the plaint are required to be seen.

JUDGMENT

I.A. 15283/2022

1. This application has been filed by the defendant under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure, 1908 (hereinafter referred to as the `CPC') seeking rejection of the plaint, primarily on the submission that the Suit is barred by Limitation and in terms of Sections 73(3) and 74 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the `Act').

CASE OF THE PLAINTIFF IN THE PLAINT

2. To appreciate the challenge of the defendant, it would be essential to take note of the averments made in the plaint.

3. It is the case of the plaintiff that pursuant to a Notice Inviting Tender for construction of three (3) blocks of staff quarters i.e. Block A, B & C, with a combined capacity of 144 dwelling units, at Mundka Depot for Phase-II of Delhi MRTS Project (hereinafter referred to as the `Project'), the defendant was awarded the said work vide Letter of Acceptance dated 27.05.2009 for a total contract value of Rs.19,86,85,437.51. The project was taken over by the plaintiff from the defendant on 05.10.2012, 10.11.2012 and 03.12.2012 for Block A, B and C respectively. The flats constructed by the defendant were allotted and taken over by the employees of the plaintiff between March to May 2013, and around 140 families started residing in the Project. Immediately after occupation of the flats by the residents, a large amount of seepage problem was discovered in all the three (3) blocks. In the meantime, on 18.06.2014, the Completion Certificate was issued by the plaintiff stating the date of completion to be 15.02.2013, for a total value of Rs.25,02,70,420.07/-. The Defect Liability Period got over on 14.02.2014.

4. The plaintiff states that on 09.12.2014, the plaintiff informed the defendant about visible cracks on the structural members of the building towers being noticed within a period of two years from the date of completion of the building. The plaintiff finally appointed a Committee to investigate the reasons for the worsening condition of the residential blocks. The Committee vide its report dated 20.06.2015, revealed the deficiencies in the work, including the fact that the chloride content in the concrete was very high compared to the permissible limit. The Committee recommended that a complete and thorough assessment on retrofitting design be done with the help of a competent and expert Structural Consultant and remedial measures be taken.

5. On 20.06.2015, the plaintiff engaged M/s Sri Ram Institute for carrying out investigations by conducting various technical tests to ascertain the strength of the structure built by the defendant. M/s Sri Ram Institute, on 27.05.2015, submitted its report, which again pointed out various construction deficiencies in the Project. The plaintiff, thereafter, issued a legal notice dated 24.09.2015 to the defendant pointing out the structural defects noticed and demanded a sum of Rs.13,68,87,646/- from the defendant as damages.

6. The plaintiff, on 20.07.2015, also appointed M/s Epicon Consultants Pvt. Ltd. for carrying out the detailed structural assessment of the buildings and suggest further action. M/s Epicon Consultants Pvt. Ltd., in November, 2015, after examination and inspection of the Project inter-alia reported that the chloride content at various locations of reinforcement was more than 10 times the allowable limit for the same. The report also, while providing remedial measures, stated that the presence of excessive chloride is a permanent defect which is irreversible.

7. On 10.02.2016, a Conciliator was appointed for settlement of the disputes between the parties. By a Deed of Settlement dated 04.07.2016, the parties entered into a settlement whereby the defendant agreed to pay to the plaintiff an amount of Rs.4,11,75,690/- towards the repairs of the structure and the lease charges of the employees.

8. The plaintiff asserts that after entering into the above settlement, the plaintiff appointed M/s Cembond Construc