AN AGREEMENT made this ..........................day of.......................... 200.. BETWEEN
M/S ……………………………………………………………………………………………………………… a company registered under companies act 1956, having its registered office at ……………………….. ……………………………………………………………………………………. Duly represented by its GPA holder Mr …………………………………. S/O …………………………………………………. Aged …… years resident of …………………………………………………………………………….., Herein afterwards called as the CONTRACTOR, unless repugnant to the context herein the word shall mean and include its successors in office, administrators, executors of the one part
And
Mr …………………………………. S/O …………………………………………………. Aged …… years resident of …………………………………………………………………………….., Herein afterwards called as the OWNER unless repugnant to the context herein the word shall mean and include his heirs for any dues and liability as an agent, permitted assigns of the other part
WHEREAS the Owner is desirous for appointing a Contractor for construction of his house at............. and the Contractor has agreed to accept the construction work under the terms and conditions appearing hereinafter.
NOW THIS AGREEMENT WITNESSETH as follows:
1. The Contractor shall at their own cost [take down & remove the house & buildings, situate and being premises No............. in............. street, etc.] erect, build and completely finish in a good, substantial, and workmanlike manner and [with the best men and materials of their several kinds] a house and other buildings upon a piece of land belonging to the owner, lying and situate at......... [that is the site upon which the said house and buildings are existing] according to the plans, elevations and sections, and in accordance with the specification of the works and drawings which have been duly signed by the Contractor and also by the owner's architect M/s. ………………………………………………….
2. The said works shall be executed under the direction and to the satisfaction in all respects of the said M/s. ……………………………….. , who shall have been appointed to act for him for the purpose of this contract.
3. The owner hereby grants licence to the Contractor to enter on the premises for the purpose only of performing this contract, the Contractor shall forthwith commence the said works actively prosecute the same, and the said works shall in all respects be completed by making the said house and buildings made fit for habitation and use within ........... calendar months from the date of these presents; Provided that if any delay shall arise from fire or due to any unforeseeable and unavoidable circumstances or any natural calamities or other inevitable cause or accident or any strike or lock-out in the building trade or any other trade or employment, or by the default of the owner in paying in due course any moneys payable to the Contractor under this contract then such further time shall be allowed for the construction thereof as the architect shall in writing certify to be reasonable.
4. All materials to be used in the works, although the same would be particularly mentioned in the specification or as from time to time required in writing by the owner or the architect, shall be supplied and furnished by the Contractor.
5. The contractor shall, on completion of the said works, at his own expense, remove and clear away all scaffolding, fencing unused materials, and rubbish from the same, and leave the whole of the works and premises in a clean and proper state.
6. The owner shall pay to the Contractor the sum of Rs.......... (Rupees.......................) only which shall include the cost of labour and of all materials, plant, and other things required for the purpose of the works, and of the conveyance or transport and removal thereof to or from the works in manner following that is to say, (a) the sum of Rs............. (Rupees...........,.............) only upon the production of the owner's certificate, of the architect that works to the value of Rs............. (Rupees.........,...............) has been duly executed to his satisfaction by the Contractor, (b) the further sum of Rs.. upon the production, of like certificate that work to the value of Rs............. (Rupees.........................) has been so executed, (c) and the remaining said sum of Rs............. {Rupees... ......,....) upon the production to the owner of the certificate of the architect that the said works have been in all respects completed making the said house and buildings made fit for habitation and use, in accordance with the contract and to his satisfaction, or, (the sum to be paid by the owner to the Contractor for the said works shall be ascertained according to the rates specified in the schedule of prices annexed to the said specification, so far as the prices are there specified, which shall include the cost of labour as above and the payment for any work not included in the said schedule of prices, shall be fixed by the architect).
7. Weekly payments on account shall be made by the owner to the Contractor upon the certificates of the architect of the contract value of the work executed, subject to a deduction of 10% upon such value which shall be retained by the owner until the completion of the work, and shall be paid to the Contractor upon the certificate of the architect of the works having been completed, and of the balance remaining due to the contractor.
8. All such payments to be made to the contractor under this agreement in the manner as aforesaid, shall always be, subject to a statutory deduction as provided under the Income Tax Act, 1961, for which necessary certificates for such deduction for the purpose of Income Tax shall be provided by the owner to the contractor along with every payment.
9. The architect shall not give his certificate in respect of any work which is in any respect defective or not according to the contract or otherwise not done to his reasonable satisfaction or while the contractor is not using due diligence in the prosecution of the works, or is otherwise making default for the performance of this contract.
10. The owner [or the architect] may at any time during the progress of the works by order in writing make or cause to be made any alteration in the said original specification and plans by way of omission or addition or otherwise deviating there from, and the said works shall be executed according to the said alteration or deviations under the direction and to the satisfaction of the architect in the same manner as if the same had been included in the said original specification and plans; and any work or materials which shall so be ordered not to be done or used shall be omitted or shall not be used by the contractor.
11. All additions and deductions to be made to or from the amount of the Contract price in respect of any such alteration or deviation from the said specification or plans as aforesaid shall be fixed by the architect: and the difference of expense occasioned by any such alteration or deviation shall be added or deducted to or from the contract price. But no payment or allowance whatever shall be made to the Contractor for any extra work or materials done or used by him without a previous order or authority in writing from the owner; and any alteration or deviation ordered or authorized as aforesaid shall not in anywise alter the total contract price to be paid to the Contractor, except so far as the same shall alter the amount of labour or the value of the materials which may be required to be used in or about the works, nor shall alter the mode in which the contract price is to be paid, or in which the value of the work done is to be ascertained with a view to payment thereof. And the Contractor shall not by reason of any such addition to or alteration in the works as aforesaid be allowed any further time for completing except such further time (if any), as the architect shall in writing certify to be reasonable.
12. The owner shall be entitled to deduct any moneys which the Contractor shall be liable to pay to the owner, under this contract or otherwise, from any sum which may become payable to the Contractor hereunder; and the architect in making his certificates as aforesaid shall have regard to any sums so chargeable against the Contractor: PROVIDED always that provision shall not affect any other remedy by action at law, or otherwise to which the owner may be entitled for the recovery of any such moneys.
13. In case the said works shall not in all respects be completed [and the said house and buildings made fit for habitation and use] [and all scaffolding, fencing, unused materials and rubbish cleared away] on or before the............. day of.............. or within such extended time as shall be allowed for that purpose, as hereinbefore mentioned, and the architect shall certify in writing the fact of such non-completion or non-removal, then the contractor shall pay to the owner, as liquidated damages for such default, and not as a penalty, the sum of Rs............ (Rupees...............), for every subsequent week, and so in proportion for any part of a week, until the completion of the said works, and the removal of all scaffolding, fencing, unused materials and rubbish, such completion and removal to be certified in writing by the architect.
14. All materials which may from time to time during the progress of the works be in, upon, or about the premises for use in the said works (except such as may be rejected by the architect as not being in accordance with the specification), shall be deemed to be the absolute property of the owner, and save as regards any surplus materials remaining over after completion of the said works in accordance with this contract, shall be used solely for the purpose of the said works and shall not be removed without the consent or authority of the architect but the Contractor shall nevertheless be solely responsible for the loss or destruction thereof, and for all damage which may happen thereto by fire or any other cause whatsoever and the Contractor shall likewise be liable to make good all damage which may happen to the said works from any cause what ever thereto during the progress thereof.
15. The Contractor shall depute company civil engineer to superintend the execution of the work, and shall not assign [or sublet] this contract or any part thereof, without the express licence and approval in writing of the owner.
16. A supervisor or engineer appointed and paid by the Contractor shall be constantly on the works, and all direction given to him by the architect shall be deemed to have been given to the Contractor. The site supervisor of the work shall be appointed and paid by the owner and shall at all times be allowed to inspect the works and materials on behalf of the architect and subject to an appeal to the architect no materials to which the said supervisor shall object shall be used.
17. In case at any time during the progress of the works any unnecessary delay shall occur in the carrying on of the same through the default of the Contractor [and such delay shall be certified by the architect] and the owner or the architect shall give a written notice to the Contractor to proceed with the said work or leave the same, if contractor does not rectify then the owner shall be at liberty, without avoiding this contract, to recover possession of the said premises or any part thereof, and to take the said works wholly or partially out of the hand of the Contractor, and to employ any other person or persons to execute the same and for that purpose to retain possession of, and use all materials and to take possession of, and use of scaffolding, plant, tools, implements and things on or aboutthe said works and all expenses and damages thereby incurred, shall be ascertained and certified by the architect and shall be paid by the contractor to the owner.
18. In case the Contractor shall at any time neglect or omit to pull down or remove any work or materials which the architect shall have to certify in writing to be defective, or not according to contract within......... days after writing notice so to do shall have been given to him or left on the works by the owner or the architect or left as aforesaid, or within such further time as may be specified in such notice, or in case the Contractor shall assign [or sublet] this contract or any part thereof without licence or prior approval of the owner, then and in any such case the owner shall be at liberty, without avoiding this contract, to recover possession of the said premises or any part thereof, and to take the said works wholly or partially out of the hand of the Contractor, and to employ any other person or persons to execute the same and for that purpose to retain possession of, and use all materials and to take possession of, and use of scaffolding, plant, tools, implements and things on or aboutthe said works and all expenses and damages thereby incurred, shall be ascertained and certified by the architect and shall be paid by the contractor to the owner.
19. The certificate, or decision in writing, of the architect upon any matter as to which he is hereby authorised to certify or decide, shall be final and binding upon both parties, except that the architect may by any certificate make any correction or modification in any previous certificate which shall have been made by himself, or by any predecessor in his office, except that certificate shall not be conclusive as to the sufficiency of any work or materials to which it relates and shall not relieve the Contractor from the liability to make good any defective work or materials.
20. The Contractor shall conform in all respects to the provisions and regulations of any general or local Act of Parliament, or of any local authority which may be applicable to the said works, and indemnify the owner against all penalties incurred by reason of non-observance of any such provisions or regulations.
21. The Contractor shall indemnify the owner against all actions or proceedings which may be brought or taken against the owner in respect of damages caused to a public street by the contractor in the performance of this contract.
22. The owner shall indemnify the Contractor against all actions and proceedings on the part of any person having or claiming ancient lights, on account of any actual or alleged or apprehended interference of the said buildings and works therewith.
23. The owner and the Contractor shall respectively at their own expense insure against their several liabilities covered by this contract in such sums as may be determined under these presents and in default of any provision therein, then any such sums as shall be reasonable and each party shall upon the demand of the other at any time produce for inspection the relevant policy or policies of insurance and the receipts for premium paid.
24. In case of any dispute or difference shall arise between the owner or architect and the contractor either during the progress or after completion or abandonment of the works as to the construction of the contract or as to any matter thing arising therein or in connection therewith or in respect of any certificate or decision in writing of the architect, issued upon the Contractor for the purpose, either party may forthwith give to the other notice in writing of any such dispute or difference and the same shall be referred to the arbitration and the final decision of a single arbitrator to be agreed upon the parties, or failing agreement within 30 days of such notice to be given at the request of the either party, by the President of the Institute of Civil Engineers for the time being. The award of such arbitrator shall be final and binding upon the parties.
IN WITNESS WHEREOF the Parties have hereunto set their respective hands the day and year first above written.
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