Delhi District Court
Umesh Tyagi vs Mcd Through Its Commissioner on 5 June, 2024
~1~
In the court of Sh. Umed Singh Grewal, District Judge-
Commercial Court-05, Central District
Extension Block, Tis Hazari, Delhi.
CS (Comm) No.: 419/2023
In the matter of:
Umesh Tyagi
Sole Proprietor of
M/s Amit Elevator Services,
Office :- 732, Burari Village,
Delhi - 110094 ........ Plaintiff
Vs.
1. Municipal Corporation of Delhi
Previously known as (East Delhi Municipal Corporation)
Through its Commissioner,
Dr. S. P. Mukherjee Civic Centre,
J. L. Nehru Marg, New Delhi - 110 002.
2. The Executive Engineer (E)-II/SH(S)/MCD
Disaster Management Centre,
Gazipur, Delhi. ........ Defendants
Date of Institution : 06-03-2023
Date on which arguments were concluded : 17-05-2024
Date of pronouncement of judgment : 05-06-2024
Present: Sh. Akhil Rana, counsel for the plaintiff.
Sh. Sanjeet Malik, counsel for the defendants.
CS (COMM) No.: 410/23
Umesh Tyagi Vs. MCD & ors.
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JUDGMENT:-
1. This is an ordinary suit for recovery of ₹ 10,15,422.35 paise along with pendent-lite and future interest and cost.
2. The defendants are engaged in taking care of all civil amenities of National Territory of Delhi. The plaintiff is a contractor enrolled with the East DMC and in that capacity, he participated in the tender process initiated by the defendant no.2 for deployment of staff for electrical works at zonal office building Karkardooma under Shah (South) Zone. He was successful bidder and work order number 94 dated 25-11-2016 was allotted pursuant to which he entered into agreement with defendants. He completed the work to the satisfaction of the defendants without any negative remark. The defendant no.2 completed the final measurement of the work and passed first bill of ₹ 6,95,000/- on 27-11-2017 and paid the same on 22-05-2018 after deduction of TDS @ 2% and labour cess @ 1%. The second bill of ₹ 1,90,500/- was also passed on 30-05-2018 after deduction against TDS @ 2% and labour cess @ 1% amounting to ₹ 5,895/-. The plaintiff had deposited earnest money of ₹ 18,500/- also with defendants.
It is further mentioned that as per rules, the defendants are to reimburse ESIC, EPF and service tax paid by the contractor/plaintiff on their behalf, within 7 days but not later than 30 days of submission of documentary proof of payment as CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~3~ per office memorandum no.01 dated 30-06-2015. As per office memorandum numbers 150 & 184 dated 14-12-2007 and 08-06- 2009 of CPWD, the engineer-in-chief is to reimburse ESIC and EPFO to the contractor and that circular of Central PWD is applicable to the defendants also because the work order was subject to GCC which have been inherited from Central PWD. They are also liable to pay ESI & EPF as per para no.34 of the work order but even after submitting the proof of payment of ESI & EPF and claim under 10C, the defendants did not release money.
The Delhi Government, vide order no. 466 dated 31- 05-2017, had increased minimum wages approximately 29% w.e.f. 01-04-2017 and the plaintiff had paid the increased wages to his workers and also claimed that amount of ₹ 1,57,380/- under 10C. Despite repeated requests and written demands on 17-07-2018, 02-09-2022 of the plaintiff and issuance of completion certificate on 13-08-2018 by the defendants, defendants did not release the amount of ₹ 5,40,718/- including ₹ 18,500/- towards security, ₹ 1,42,617/- in respect of EPF & ESIC, claim under 10C amounting to ₹ 1,57,380/- and CP @ 15% on ESIC & EPF i.e. ₹ 25,671/-. Even the legal notice dated 14-09-2022 under Section 477 and 478 of DMC Act and 80 of Cr.P.C. went unheard.
CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
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3. The defendants admitted in written statement that the plaintiff had participated in the tender issued by them for certain work and the tender is governed by the terms and conditions mentioned in the notice inviting tender. The plaintiff was the successful bidder and hence work order number 94 dated 25-11- 2016 was awarded to him. It is further admitted that they released the payment of first running bill for the work done by the plaintiff but they could not release the amount of ESIC and EPFO & claim under 10C because the wages of the labour enhanced by Delhi Government were declared invalid and quashed by Hon'ble Delhi High Court.
The plaintiff is bound by terms and conditions of NIT, work order and GCC. He failed to adhere to the requirements of work order and GCC. It is admitted that as per law, GCC and established practice between the parties, the plaintiff is entitled to reimbursement of ESIC and EPF and claim under 10C but after furnishing the clarification and documents requisitioned by defendants. The plaintiff never submitted break up of the documentary proof of the payment. He did not submit final bills as required by GCC and also directed by Hon'ble Delhi High Court in a judgment. So, there was no question of any payment to him.
4. Following issues were framed on 25-05-2023 :-
CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
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1. Whether the plaintiff is entitled for suit amount as prayed for? OPP
2. Whether plaintiff is entitled to any interest? If yes, for which period and at what rate? OPP
3. Whether plaintiff is at fault and not entitled to any amount due to non-submission of interim and final bills? OPD
4. Whether plaintiff is not entitled to refund of the security amount due to non-compliance of clause nos. 17 & 45 of GCC? OPD
5. Whether the suit is barred by period of limitation in respect of work order? OPD
6. Relief.
5. To prove his case, plaintiff examined Sh. Kuldeep Kumar Singh, AE (Electrical) as PW-1 who proved following documents :-
1) Ex. PW-1/1 is copy of legal notice dated 14-09-2022 received on 20-09-2022 ;
2) Ex. PW/12 is copy of letter sent by plaintiff vide letter dated 17-07-2018 received on 18-07-2018 ;
3) Ex. PW-2/3 is copy of letter sent by plaintiff dated 02-09-
2022 received on 05-09-2022.
CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~6~ The plaintiff examined himself as PW-2 by tendering his affidavit in evidence Ex. PW-1/A on 24-07-2023 in which he reiterated the contents of plaint. He has again appeared in witness box on 22-11-2023 and tendered some more documents. He relied upon following documents :-
1. Ex. PW-2/1 is registration certificate;
2. Ex. PW-2/2 (colly) is work order;
3. Ex. PW-2/3 is 2nd passed bill;
4. Ex. PW-2/4 (colly) are downloaded gazette notification of Delhi Govt. dated 31-05-2017 ;
5. Ex. PW-2/5 is completion certificate ;
6. Ex. PW-2/6 (colly) are downloaded office memorandums ;
7. Ex. PW-2/7 (colly) are downloaded details of ESIC contribution by plaintiff ;
8. Ex. PW-2/8 (colly) are downloaded challan of EPF contribution from Dec. 2016 to Nov. 2017 ;
9. Ex. PW-2/9 (colly) download ESIC monthly contribution from Dec.2016 to Nov. 2017 ;
10.Ex. PW-2/10 (colly) are downloaded EPF contribution from Dec. 2016 to Nov. 2017 ;
11. Ex. PW-2/11 is GCC rules ;
12.Ex. PW-2/12 is non-starter report ;
13.Ex. PW-2/13 is copy of ordersheet dated 23-01-2020 (certified seen and returned) ;
CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
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14.Ex. PW-2/14 is notice under Order XII Rule 8 CPC dated 06-05-2023 ;
15.Ex. PW-2/15 is certificate under Section 65 B of Indian Evidence Act ;
16.Ex. PW-2/16 is the certified copy of the plaint of Commercial Suit No. 71/2020 of work order No. 94 dated 25-11-2016 and
17.Ex. PW-2/17 is the letter no. AEC/2016-17/230 dated 14- 03-2017 and the same was received vide dairy no. 1644 dated 15-03-2017 by the defendants. Photocopy of that document is already mark P-1.
He also relied upon documents exhibited by PW-1 as Ex. PW-1/1 to Ex. PW-2/3.
6. The defendants examined Sh. Kuldeep Kumar Singh, AE, Shahdara, South Zone, MCD, as DW-1 who reiterated the contents of written statement in his affidavit. Additionally, he deposed that the plaintiff failed to comply with clause nos. 17 and 45 of GCC and hence, he is not entitled to refund of security. Moreover, he had not applied for no objection certificate from the legal department.
Issue No. 37. Learned counsel for defendants argued that provision CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~8~ of giving advance to the contractor is there in clause no. 7 of GCC but for that purpose, the contractor is to move bills. No interim bill was moved by him. As per clause 9 of the GCC, the payment is to be made only after filing of bill by the contractor within three months of completion of the work. In the case in hand, the work was completed on 30-11-2017 as mentioned in Ex. PW-2/3 (colly), but the contractor did not file any bill. He further submitted that the Hon'ble Delhi High Court held in "North Delhi Municipal Corporation Vs. Sanjeev Kumar", RFA No. 430/17, decided on 22.03.2018, that it was mandatory for the contractor to submit bill. But the plaintiff did not follow that guideline also. He further submitted that the document Ex. PW-2/3 is being touted as bill by the plaintiff but it is not so. That document is merely internal noting by the officials of the defendants and same cannot be taken into account because no bill was given by the plaintiff at any point of time and hence, there was no occasion for the defendants to pass the bill. The said document is neither interim nor final bill and nor it is the proceeding vide which any of the bill was passed by the defendants.
On the other hand, learned counsel for plaintiff admitted it correct that if the contractor wanted to take advance, he is required to submit bill as per clause no. 7 of GCC. Even if the bill is not submitted, the defendants, on their own, may pass the bill under that clause and similar are the provisions of clause CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~9~ 9 for final bill. He further argued that Ex. PW-2/3 is the proceeding vide which officers of the defendants had recommended to make payment of IInd and final bill to the plaintiff. Despite it, the accounts branch did not follow that direction. He submitted that Ex. PW-2/3 is not internal noting because the same is bearing signatures of the officers of the defendants including Engineer in-charge and also of the contractor.
8. The bone of contention is the document Ex. PW-2/3. Whether it is interim or final bill or proceedings of the defendants vide which interim or final bill was passed or it is merely official noting having no probative value ?
Its perusal shows that it is in several inks. Some of its contents are in printed form and some have been written with pen. Some contents have been written with thick pen ink. The signatures of all concerned persons are naturally with pen.
Ordinarily, following are the contents of a bill of a contractor :-
1) Name of the firm/company.
2) Name of the proprietor/partner/director.
3) Invoice number.
4) Date of invoices.
5) Date of execution of the work.
6) Description and measurement of the work.
CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
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7) Total value of the work done.
8) Amount needed as advance.
9) The bill is generally address to the department.
10) Signature of the proprietor/ partner/ director/ authorized signatory.
Ex. PW-2/3 reflects that it is bearing only the detail of the work done and its measurement. It is bearing the signature of plaintiff also but not as a person submitting the bill but as a person receiving the amount from the department. All other above contents are missing. It bears the signatures of the Assistant Engineer and also Executive Engineer who has been termed as Engineer in-charge in conditions of contract. The counsel for defendants also admitted that designation of Engineer in-charge is X.En. Due to missing of the contents of a bill, this document can neither be termed as running nor the final bill.
9. Hon'ble Delhi High Court in Surgical Electronics vs. UOI 60 (1995) DLT 359 held that the internal notings are only an expression of views during the decision making process and cannot be treated as final binding and enforceable decision.
Hon'ble Supreme Court in M/s. Sethi Auto Service Station vs. DDA (2009) 1 SCC 180 held that notings in a departmental file do not have the sanction of law to be an effective order which is only an expression of viewpoint or opinion of an officer to be used for internal use and consideration CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 11 ~ of other officials of department and helps in arriving at final decision. Such type of internal noting is not meant for outside exposure. When such internal noting is approved by the final decision making authority and that order is communicated to the concerned party whose rights are affected, then only the same can be considered.
10. In Mahadeo & Ors., Appellants Vs Smt. Sovan Devi & Ors., Respondents, Civil Appeal No. 5876 of 22 arising out of SLP (C) No. 20839 of 21 decided by Hon'ble supreme Court on 30-08-2022, following was held :-
15. This Court in Municipal Committee v. Jai Narayan & Co. held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of an opinion by the particular individual. It was held as under:
"16. This Court in a judgment reported as State of Uttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670 held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. It was held as under: "24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 12 ~ decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.
(See State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493, Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, State of Bihar v. Kripalu Shankar (1987) 3 SCC 34, Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84, Sethi Auto Service Station v. DDA (2009) 1 SCC 180 and Shanti Sports Club v. Union of India (2009) 15 SCC 705)."
17. Thus, the letter seeking approval of the State Government by the Deputy Commissioner is not the approval granted by him, which could be enforced by the plaintiff in the court of law."
16. The basis of the claim of the writ petitioner is a letter written by the Secretary of the Soldier Welfare Department CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 13 ~ to the District Collector, Udaipur on 19.03.1971 for allotment of land. The Rules contemplate that if the possession is not taken within 6 months, the allotment shall be deemed to have been cancelled. Firstly, the inter- departmental communication dated 19.03.1971 cannot be treated to be a letter of allotment..."
11. Ex. PW-2/3 bears the signature of AAO as well as Executive Engineer (M) who is the authorized person by Commissioner to verify and check the measurement. The entries are based upon the measurement book which contains particulars of the work done on day to day basis that are cross checked by the lower rung officials of the defendants. Existence of signatures of AAO and XEn shows that the same has been passed by the concerned zone for release of the payment. Moreover, its contents were fully in the knowledge of the plaintiff as it is bearing his signature. Presence of signature of Executive Engineer shows that the decision had been taken at zone level that payment has to be made by the headquarter. Due to these circumstances and facts, above document has lost the status of internal noting.
So, it is held that above document is neither running nor final bill and nor it is internal noting of the defendants. But it definitely amounts to acknowledgement of ₹ 1,90,605/-.
CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
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12. As per clause 7 of GCC, the Engineer in-Charge may give advance to the contractor even without submission of interim bills, if the estimated cost of the work was more than ₹ 20,000/-. It is mentioned in clause 9 that the final bill shall be submitted by the contractor in the same manner as specified in interim bill clause within nine months of physical completion of work. Ex. PW-2/3 bear the words "IInd and final Bill" on top. Those words suggest that the proceedings of the defendants are regarding IInd which is final bill. Even DW-1 admitted in cross- examination that IInd and final bill was made on 15-02-2018 as per measurement book and sent to the accounts branch for payment. So, DW-1 also proves that Ex. PW-2/3 is the proceeding of the defendants for making payment of work order amount to the plaintiff in view of the clause 9 of GCC even without submission of bill by the contractor.
13. Neither in work order nor in GCC and nor in judgment "NDMC Vs. Sanjeev Kumar" (supra), it is mentioned that if the contractor did not submit interim/running or final bills, he would forfeit right of filing of suit to recover the work order amount. So, it is held that though the plaintiff did not submit any bill with the defendants, yet he is entitled to recover the work order amount by filing a recovery suit. Hence, this issue is decided in favour of plaintiff and against defendants.
CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 15 ~ Issue No. 5 :-
14. Counsel for the defendants argued that work was completed on 30-11-2017 and the suit was filed on 06-03-2023 and hence, it is barred by period of limitation of three years.
Counsel for the plaintiff admitted that the work was completed on 30-11-2017 and prescribed period had started running from next day i.e. w.e.f. 01-12-2017. But before, expiry of three years from that day, 2nd and final bill was passed on 30- 05-2018 paving way for commencement of fresh prescribed period. As per judgment of Hon'ble Apex Court, the period from 15-03-2020 to 28-02-2022 is to be excluded in case the limitation expired during that period. In the case in hand, the limitation period expired during COVID-19 and hence, the plaintiff is entitled to the remaining period w.e.f. 01-03-2022. He further argued that as per Commercial Courts Act, the period of pendency of pre-institution application is also be excluded. It was filed on 23-11-2022 and failure report was issued on 27-02- 2023. After excluding these two periods, the suit is within limitation.
15. Both the parties are agreeing that the work was completed on 30-11-2017. So the prescribed period had started running w.e.f. 01-12-2017 and it was to end on 01-12-2020. But before arrival of that day, the defendants acknowledged the CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 16 ~ amount vide acknowledgment dated 30-05-2018 as observed in issue no.3. Due to that reason, the fresh period started running w.e.f. 31-05-2018. As per the judgment of Hon'ble Apex court, if the limitation period expired during COVID-19, the party shall have balance of that period w.e.f. 01-03-2022. In the case in hand, limitation period had started running from 31-05-2018 till 15-03-2020, period of one year nine months 15 days had expired. So on that day, the remaining limitation period was 3 years (-) one year nine months 15 days = one year two months 15 days. The plaintiff is entitled to that period to be reckoned from 01-03- 2022.
As per report Ex. PW-2/12, the plaintiff had moved pre-institution application on 23-11-2022 and the failure report was ultimately issued on 27-02-2023. So the application remained pending for three months and four days. That period is also to be excluded from the limitation period.
In above manner, the total excluded period comes out of one year two months 15 days + three months and four days = one year 5 months 19 days to be reckoned from 01-03-2022. So the case should have been filed till 20-08-2023 but it was filed on 06-03-2023. It shows that it is within limitation period.
This issue is decided in favour of the plaintiff and against the defendants.
CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 17 ~ Issue no.4 :-
16. Learned counsel for defendants argued that as per clause 17 of GCC, if any damage has been caused while executing the work, the contractor is liable. Also, the security deposit/ earnest money cannot be refunded before the expiry of 12 months/ 6 months (In case the work order was more than ₹ 5 lacs/ upto ₹ 5 lacs as the case may be), after issue of final certificate or completion certificate or till the preparation and passing of the final bill, whichever was earlier. He further submitted that the plaintiff never submitted the final bill and hence, the same has yet not been passed and so, the cause of action for refunding security amount/ earnest money has not arisen.
On the other hand, learned counsel for plaintiff argued that no document has been placed on record by the defendants to show that any damage was caused by contractor while executing the work. The work was completed on 30-11-2017 and hence, completion certificate is deemed to have been issued by them long ago i.e. more than one year from today.
17. It is correct that as per clause 17 of GCC, the contractor is liable to pay or correct for the damages caused to anything while executing the work order or for any defect, shrinkage or other faults appearing in the work done, within 12 CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 18 ~ months/ 6 months in case the work order was of Rs. 5 lacs/ less than Rs. 5 lacs.
If such defect is detected, the Engineer in-Charge may ask the contractor to do the rectification and if he fails, such work can be got done through other persons for which the payment is to be made by the contractor. But the defendants did not file any report or examine any witness to prove that the plaintiff had caused damage to any building, road, fence or enclosure while executing the work or work done by him was faulty. Rather, deposition of DW-1 is that the completion certificate was issued as he had completed the work as per GCC. As observed earlier, the work was completed on 30-11-2017 and so, it should have refunded the security amount one year thereafter i.e. on or after 30-11-2018.
The plaintiff did not file any document which he may have written to the Labor Officer to issue him a clearance certificate. It is pertinent to mention that after writing to the Labor Officer for such certificate, the contractor is to send intimation to Engineer in-Charge as per clause 45 and on receipt of that communication, the Engineer is to write to the Labor Officer to intimate him if any complaint was pending against the contractor in respect of the work. If no complaint is found pending till after three months after the completion of the work or no communication is received from the Labor Officer to that effect till six months after the date of completion, it shall be CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 19 ~ deemed to have received clearance and the security deposit would be released to the contractor. The work was completed on 30-11-2017 and that fact would have come to the knowledge of Engineer in-Charge on the same day. Moreover, it is the deposition of the DW-1 that the completion certificate was issued to the plaintiff.
Hence, it is held that plaintiff is entitled to refund of the security deposit of ₹ 18,500/- for the work order in question.
Issue no. 1
18. Learned counsel for plaintiff argued that work order number 94 dated 25-11-2016 was alloted to his client and he had deposited a security amount of ₹ 18,500/- with the defendants. The contractual amount was ₹ 9,42,000/-. After execution of the work, the defendants passed first running bill of ₹ 6,95,000/- after deducting 2% for income tax and 1 % for labour cess on 27- 11-2017 and paid the same on 22-05-2018. The defendants had passed second and final bill of ₹ 1,90,500/- on 30-05-2018 and sent the same to the accounts department for making payment but it was paid during pendency of the case on 06-03-2023.
Next argument is that earnest amount of ₹ 18,500/- was also deposited with the defendant as precondition of the contract and that amount was refundable after one year of the execution of the contract. The contract was executed on 30-11-2017 and the CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 20 ~ payment should have been made till November, 2018 but that amount has also been withheld.
He further submitted that as per the terms and conditions, bylaws and rules, the contractor of the plaintiff was required to deposit the ESIC & EPFO contribution in the accounts of the workers who were deployed to execute the work and that amount and and Claim 10C is to be reimbursed by the employer/ defendants within 7 to 30 days. The plaintiff sent defendants letter Ex. PW-1/2 dated 17-07-2018 for reimbursement of amount of ₹ 3,76,575/- under that head but it has not been paid. Plaintiff again sent defendants letter Ex. PW-2/3 dated 02-09- 2022 for reimbursement of amount of ₹ 2,99,997/- under the heads of ESIC & EPFO and claim under 10 C and despite receipt of letter on 05-09-2022, payment was not made. He further submitted that as per the office memorandum issued by Central PWD, the plaintiff is entitled to 15% of profit on ESIC and EPFO contribution. The terms and conditions mentioned in notice inviting tender and GCC of the defendants are based upon GCC issued by Central PWD and hence, the said memorandum is applicable to the defendants also and so, plaintiff is entitled to 15% of ESIC and EPFO and in this way, the total comes to ₹ 25,671/-.
He further argued that vide order dated 31-05-2017, the Government of NCT of Delhi increased the minimum wages approximately 29% effective from 01-04-2017 and in CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 21 ~ compliance of that order, the plaintiff paid increased wages to his workers deployed on the site of work order of this case. So, the plaintiff is entitled to that legitimate claim of reimbursement of ₹ 1,57,380/- under clause 10C of GCC.
19. Counsel for defendants argued that the plaintiff was required to file the attendance book of the workers deployed by the plaintiff to execute the work order. But the plaintiff did not maintain such attendance register and also did not supply copy thereof to the plaintiff with letters Ex. PW-1/2 and ex. PW-2/3. Moreover, the letters were not accompanied by the bank statement of the workers to show that they had received at least minimum wages from the plaintiff. Also, they were not accompanied by the acknowledgment of the workers that the plaintiff had deposited ESIC and EPFO contribution in their accounts. Due to that default, no order was passed on those letters. Before this court also, the plaintiff has not filed any document to show that the persons for whom the ESIC and EPFO contribution was deposited, had actually worked on the site. None of the worker has been examined and hence, the plaintiff is not entitled to any amount under ESIC and EPFO heads and consequently, it is not entitled to 15% of the profit of the amount of ESIC and EPFO as office memorandum of Central PWD is not applicable to the defendants.
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20. The plaintiff is claiming amount under five different heads. First is for the principal amount of ₹ 1,90,500/- i.e. the balance of the contractual amount. Second is for ESIC and EPFO deposit. Third is for earnest money and fourth is 15% of the ESIC and EPFO. Fifth is claim under 10C i.e. the difference of increase of minimum wages.
21. It has already been decided that the plaintiff is entitled to security amount of ₹ 18,500/- from defendants.
22. Now, let us come to the amount of ₹ 1,90,500/- i.e. under the heading of balance of contractual amount.
It is the admitted case that plaintiff had participated in the tender process initiated by the defendants and he was successful bidder and hence the work order number 94 dated 25-11-2016 for deployment of staff for electrical works at zonal office building Karkardooma under Shah (South) Zone was alloted in his favour and the term of contract was 12 months. It is also the admitted position that the work order was executed by the plaintiff pursuant to which first running bill of ₹ 6,95,000/- was passed and the money was paid to the plaintiff. It is not the case of the defendants that the whole contractual amount has been paid to the plaintiff. It admitted payment of only ₹ 1,90,500/-.
It has already been held that Ex. PW-2/3 (colly) is not the bill submitted by the plaintiff. It is the proceedings of the CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 23 ~ defendants qua the work order in question. Even DW1 admitted in cross-examination that entry of second bill Ex. PW-2/3 (colly) was made in measurement book on 15-02-2018 and sent to accounts branch for payment. So, Ex. PW-2/3 (colly) amounts to acknowledgment dated 15-02-2018 that the plaintiff was entitled to a sum of ₹ 1,90,500/- from the defendants regarding the work order no. 94.
PW-1 deposed in para no.25 of affidavit in evidence that the defendants have paid him on 06-03-2023 an amount of ₹ 1,96,500/- which is the amount of 2nd & final bill Ex. PW-2/3 without deduction. Due to payment, plaintiff is not entitled to that principal sum.
23. For reimbursement of the ESIC and EPFO contribution deposited in the account of the workers by plaintiff, it has been admitted in para no. 10 of the written statement that as per established practice between the parties and as per law and GCC, the plaintiff is entitled to reimbursement of ESIC and EPFO but for such entitlement, the contractor is to furnish clarification. As per GCC and written statement, if the contractor makes payment of ESIC and EPFO in the account of the employees engaged for the work order in question, he is entitled to reimbursement thereof.
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~ 24 ~
24. Following terms and conditions accompanying the work order Ex. PW-2/2 (colly) and separately mentioned in other general terms and conditions are relevant :-
"6. The contractor will depute the following staff (except Sunday/ gazette holiday) in whole month:-
(a) Elecrical wireman in one shift from 9 am to 5:30 p.m.
(b) D. G. Set operator/ PA system operator in one shift from 9 am to 5:30 p.m.
(c) Pump operator in one shift from 9 am to 5:30 p.m.
(d) Left operator in one shift from 9 am to 5:30 p.m.
(e) Beldar in one shift from 9 am to 5:30 p.m.
7. The contractor/ agency should be well organized and registered with appropriate authority and should have a valid ELECTRICAL LICENCES for carrying out the electrical works/ jobs etc.
8. a) The persons so deployed shall be liable for payments of their wages etc. and all dues which the agency/ contractor liable to pay under various labour regulations and other statutory obligation.
b) The contractor/ agency shall ensure that all persons so deployed by them get the minimum wages all other benefits as admissible under various labour laws/ act.
21. The contractor shall be responsible for maintenance of all records of the person deployed like photo, resident proof (ration card, attested copy/ election card attested copy/ driving license attested copy etc.) educational and technical qualification proof attested copies. The same CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 25 ~ shall be furnished to the department's Engineer Incharge without fail who deployed against the contract. The contractor shall also be responsible for intimating the department's Engineer Incharge on his own changing all or any of the persons deployed.
23. a) The contractor shall ensure proper filing of printed logbook for each installation like pump, DG set, lifts. The formal log sheet will be approved by the department. The duty person shall sign in his shift on the log sheet and the same will signed and stamped by the contractor shall be submitted to the Engineer Incharge the next day.
b) The contractor shall maintain register for minor routine maintenance carried out as per scope of work.
c) The contractor / agency will be required to maintain attendance register of the labour deployed on the work with address and photographs, the same will be got verified by the AE/JE incharge twice a month and may be demanded during the period of contractor which shall be preserved for one years after the contractor is over.
d) The contractor/ agency shall not engage any sub- contractor or transfer the contract to any person in any whatsoever case of it is found the contractor shall be terminated immediately.
e) The contractor/ agency shall be solely responsible for the correctness /genuineness of the documents whatsoever submitted.
34. The reimbursement to the contractor shall be made after submitting original challan/ passbook/ debit/ credit CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 26 ~ bank statement of the employee against ESIC &EPFO to this office."
As per above conditions, for executing the work order, the plaintiff was required to engage three operators and one beldar and wireman each. He was to employ only the skilled staff who should have requisite qualification and electrical license. The plaintiff was further required to deploy the duty chart showing the names of the persons on duty along with their mobile phone numbers, their names and addresses. He was further required to forward the name of his employees to the defendants in writing before starting the work. As per clause 34, the reimbursement is allowed to the plaintiff subject to furnishing of statement to the effect that ESIC and EPFO contributions had been deposited in the accounts of the workers.
Even DW-1 admitted that plaintiff had sent information of deposit of ESIC and EPF of his workers to the defendants on 17- 07-2018 & 02-09-2022 vide Ex. PW-1/2 and Ex. PW-2/3 for reimbursement of ESIC and EPF contribution. But the defendants did not proceed further with the request because the plaintiff did not submit attendance register, bank statement of the workers and labour acknowledgment. He further deposed that it was practice in the department that the contractor should furnish the bank statement of the worker to prove that he had paid minimum wages to them and he should also furnish the acknowledgment by the workers to the effect that the contractor CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 27 ~ had deposited ESIC and EPF contribution in the their account. But the plaintiff did not file any of those documents and hence his claim was not forwarded, though he had submitted proof of deposit of ESIC and PF along with contingent bill.
25. In demand letters Ex. PW-1/2 & Ex. PW-1/3 dated 17-07- 2018 and 02-09-2022, the plaintiff did not mention the name of the workers for whom he was claiming ESIC and EPFO reimbursement. Perusal of the payment receipts regarding ESIC and EPFO shows that the same are for 60 - 70 employees. He did not name any of the employee as the person who had executed the order. It is pertinent to mention that plaintiff is a government contractor who executes several work orders of defendants also. Moreover, the document Ex. PW-2/7 (colly) onwards also show that he has kept several workers on permanent roll for whom he deposited ESIC and EPFO continuously. It is the admitted position that those 60 - 70 persons were not engaged by him for executing the present work order. But he did not mention in the letters Ex. PW-1/2 Ex. PW- 1/3 the name of the workers for whom he was claiming the reimbursement. Even before this court, he did not mention their names.
The plaintiff was required to maintain the attendance register/employment book of the persons engaged by him for executing the work order. Neither before defendants nor before CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 28 ~ this court, such attendance register has been filed. Moreover, the plaintiff did not examine any worker before this court to prove that he had been engage by the plaintiff to execute the present work order.
The plaintiff had given notice Ex. PW-2/14 dated 06-05- 2023 under Order XII Rule 8 CPC to defendants for production of several documents including original attendance register/ log book of labour of present work order. Defendants did not file any reply to that notice. It is pertinent to mention that as per terms and conditions, it was the plaintiff who was to maintain the attendance register of his labour. Such register should be with the plaintiff and not with the defendants. Even if it is presumed that the original attendance register was handed over to the defendants for the purpose of payment of contractual amount, the plaintiff might have definitely retained the photocopy thereof. Such photocopy has not been filed by him. It is pertinent to mention that the notice under Order XII Rule 8 CPC is said to have been given on 06-05-2023 and thereafter, defendants examined their witness Sh. Kuldep Kumar who deposed that the plaintiff did not hand over attendance register of his workers. So, simply because the plaintiff gave notice to the defendants for production of original attendance register, the same does not create any reason for this court to reach to the conclusion that the plaintiff had sent original attendance register to the defendants because such plea is not supported by any document.
CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 29 ~ So, the plaintiff has failed to prove that he had engaged any of the workers whose names are mentioned in the ESIC and EPFO contribution receipts, to execute this work order as attendance register not filed by him. Hence he is not entitled to reimbursement under that head and consequently he is not entitled to profit @ 15 % of that amount. Plaintiff is also not entitled to claim 10C as no record has been filed nor any worker examined to prove that enhanced minimum wages were paid to them and hence, he is not entitled claim under that head.
26. In view of above discussion, it is held that plaintiff is entitled to an amount of ₹ 18,500/- under the heading of earnest money. This issue is decided in favour of plaintiff and against defendants.
Issue No. 227. As per clause 9 of GCC, the contractors / plaintiff was to submit bill to the defendants so that they may make payment to him. But he did not file any bill and so, he is entitled to interest only from the date of filing of the suit. Taking into account the case "Rajnish Yadav Vs. NDMC, RFA (OS) (COMM) 1/2021"
decided by Hon'ble Delhi High Court on 29-04-2022", interest @ 9 % per annum is granted to the plaintiff.
CS (COMM) No.: 410/23 Umesh Tyagi Vs. MCD & ors.
~ 30 ~ Issue no. 5
28. Consequent to decision on above issues, it is held that plaintiff is entitled to an amount of ₹ 18,500/- from the defendants alongwith interest @ 9% per annum from the date of filing of suit i.e. 06-03-2023 till realization. He is entitled to cost also.
Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Digitally
signed by
Announced in open court UMED UMED SINGH
on 5th day of June, 2024 SINGH
Date:
2024.06.05
15:32:28
+0530
(UMED SINGH GREWAL)
District Judge-Commercial Court-05
Central District, Delhi.
CS (COMM) No.: 410/23
Umesh Tyagi Vs. MCD & ors.