Delhi District Court
Sh. Gurdarshan Singh vs The Union Of India on 9 September, 2011
:1:
IN THE COURT OF CIVIL JUDGE-I, NEW DELHI DISTRICT, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 241/10
Unique Case ID No.02403C0311552010
Sh. Gurdarshan Singh
S/o Sh. Baljit Singh
R/o WZ -199, G Block,
Gali No. 17, Jail Road,
Hari Nagar, New Delhi-110058 ... Plaintiff
Versus
The Union of India
Ministry of Railways
Baroda House, Northern Railway,
New Delhi,
through its General Manager ... Defendant
SUIT FOR RECOVERY OF RS.1,39,933/-
(RUPEES ONE LAC THIRTY NINE
THOUSAND NINE HUNDRED AND THIRTY
THREE ONLY) ALONGWITH PENDENTE-
LITE AND FUTURE INTEREST
DATE OF INSTITUTION : 12.11.2009
DATE OF ARGUMENTS : 29.08.2011
DATE OF DECISION : 09.09.2011
JUDGMENT
1. This suit has been filed by the plaintiff against the defendant for recovery of Rs.1,39,933/- alongwith costs and pendente-lite and future interest at the rate of 15% per annum.
2. In this suit, the plaintiff is the proprietor of M/s Apex Civil Suit No.241/10 :2: Traders, operating from WZ-199, G Block, Gali No. 17, Jail Road, Hari Nagar, New Delhi-110058 and the defendant is the Union of India, acting through the General Manager, Ministry of Railways, Baroda House, Northern Railway, New Delhi.
3. The facts that have allegedly led to the filing of this suit are as follows :-
Date Fact 30.6.06 The defendant, acting through Assistant
Divisional Engineer, Northern Railway, Hazrat Nizamuddin, New Delhi issued letter no.W/NZM/Quatitions/2006 dated 30.6.2006 whereby quotations were invited for providing Pumps and Generator for lifting of water in C/W area of DAL Section in the S/O(P.Way) Nizamuddin, New Delhi under the ADEN/NZM.
6.7.06 In pursuance of the aforesaid letter, the plaintiff submitted his quotation, wherein the plaintiff offered for providing Pump with Generator for lifting of water at the rate of Rs.1539/- per day i.e. for a total sum of Rs. 92,340/-.
All the quotations received were opened by ADEN/HNZM and forwarded to the Sr. DFM/NDLS vide letter no. W/NZM/Quot dated 7.7.2006.
10.7.06 The ADEN/HNZM prepared the comparative statement of all the quotations received from various firms and submitted the same to the Sr.DEN/V/NDLS vide letter no.
W/NZM/06.
Since the quotation submitted by the plaintiff was found to be the lowest, the Assistant Divisional Engineer, Northern Railway, Hazrat Nizamuddin, New Delhi requested the plaintiff to start doing the work, as soon as possible, without waiting Civil Suit No.241/10 :3: for a formal letter from the side of the department of the defendant.
15.7.06-6.9.06 The plaintiff worked at DAL Section from Km 8/0-11/0 and completed the work as per the satisfaction of the employees of the defendant.
7.9.06-14.9.06 The plaintiff worked at Kotla Railway
Colony, near Ashram Chowk under
SSE/W/NZM, New Delhi and completed the work as per the satisfaction of the employees of the defendant.
29.4.09 The plaintiff issued a legal notice dated 29.4.2009 against the defendant.
7.7.09 The plaintiff issued a legal notice under Section 80 of the Code of Civil Procedure, 1908 against the defendant.
25.7.09 The plaintiff issued another legal notice under Section 80 of the Code of Civil Procedure, 1908 against the defendant. However, despite the service of the aforesaid notices, the defendant neither replied nor paid the dues of the plaintiff.
4. On the aforesaid facts, the case set up by the plaintiff is that he had provided services to the defendant for a period of 61 days at the rate of Rs.1539/- per day. Therefore, he is entitled to receive Rs. 94,933/- from the defendant alongwith pre-litigation interest of Rs.45,000/- for the period 15.9.2006 to 12.11.2009.
5. In the written statement filed by the defendant, the relevant preliminary objections taken is that the suit is barred by the law of limitation. In reply on merits, the defendant has averred that the plaintiff is not entitled to any amount from the defendant because no formal contract was signed between the Civil Suit No.241/10 :4: parties and the work, alleged to be done by the plaintiff, was done without the consent of the defendant.
6. In the replication, the plaintiff has traversed the contents of the written statement filed by the defendant and reiterated and reaffirmed the contents of the plaint. Also, the plaintiff has challenged the written statement filed by the defendant on the ground that it has not been properly verified as per Order VI Rule XV of CPC.
7. On the pleadings of the parties, the following issues were framed on 11.2.2011 :-
"1. Whether the suit is barred by the law of limitation? OPD.
2. Whether the plaintiff is entitled to the amount of Rs. 94,933/-? OPP.
3. Whether the plaintiff is entitled to interest ? If so, at what rate and for which period? OPP.
4. Whether the pleadings in the written statement has been properly verified on behalf of the defendant? OPD.
5. Relief."
8. In support of his case, the plaintiff examined himself and PW-2 Sh. Ramji Lal. In his examination in chief, the plaintiff deposed in line with the plaint and tendered in evidence the following documents :-
(i) Log book (8 pages) (Ex.PW1/1 OSR).
(ii) Copy of the Indian Railways Permanent Way Manual (Ex.PW1/2).
(iii) Letter written by Sh. Ramji Lal (Ex.PW1/3).Civil Suit No.241/10 :5:
(iv) Notice dated 29.4.2009 (Ex.PW1/4).
(v) Three original postal registration slips (Ex.PW1/5 to Ex.PW1/7).
(vi) Acknowledgment receipt (Ex.PW1/8).
(vii) Notice dated 7.7.2009 (Ex.PW1/9).
(viii) Five original postal registration slips (Ex.PW1/10 to Ex.PW1/14).
(ix) Five original acknowledgment receipts (Ex.PW1/15 to Ex.PW1/19).
(x) UPC (Ex.PW1/20).
(xi) Notice dated 25.7.2009 under Section 80 of the Code of Civil Procedure, 1908 (Ex.PW1/21).
(xii) Original postal registration slip (Ex.PW1/22).
(xiii) Original acknowledgment receipt (Ex.PW1/23).
(xiv) UPC (Ex.PW1/24).
9. Also, PW-1 Sh. Gurdarshan Singh relied upon the following documents, which were admitted by the defendant at the stage of admission/denial of documents :-
(i) Tender dated 30.6.2006 (Ex.P-1).
(ii) Quotation submitted by the plaintiff (Ex.P-2).
10. During cross examination, the plaintiff stated that on 14.7.2006, Sh.Jitender Kumar, Assistant Divisional Engineer had informed him that in the tender, his bid was found to be the lowest and keeping in mind, the emergent nature of the work, he should immediately start the work without waiting for a formal letter. Also, the plaintiff stated that he had not received Civil Suit No.241/10 :6: any formal letter of acceptance from the defendant.
11. In his examination in chief, PW-2 Sh. Ramji Lal supported the case of the plaintiff by stating that during 15.7.2006 to 14.9.2006, he was working as Supervisor, Northern Railway, Hazrat Nizamuddin, New Delhi and had supervised the work done by the plaintiff during the relevant period. PW-2 Sh. Ramji Lal identified his signatures and the signatures of Sh. Harish Kumar, Sh. Ghisawan, Sh. Budhu, Sh. Jabar and Sh. RK Sahani at points E, A, B, D and F, respectively on the log book, Ex.PW1/1. Also, PW-2 Sh. Ramji Lal identified his own signatures at point A on the letter dated 31.8.2006, Ex.PW1/3.
12. Despite grant of opportunity, no questions were put by the Ld. Advocate for the defendant to PW-2 Sh. Ramji Lal. After examination of PW-2 Sh. Ramji Lal, the plaintiff evidence was closed.
13. In support of its case, the defendant examined DW-1 Sh. Mohit Lila, DW-2 Sh. Ghisawan and DW-3 Sh. Budhu. In his examination in chief, DW-1 Sh. Mohit Lila deposed in line with the written statement. However, he did not tender any document in support of his testimony.
14. During cross examination, DW-1 Sh. Mohit Lila stated that he had no personal knowledge about the facts and circumstances of the present case as he had been posted as Senior Divisional Engineer-V since 5.5.2008. Also, DW-1 Sh.
Civil Suit No.241/10 :7:Mohit Lila stated that Sh. AK Singh, who was the Senior Divisional Engineer-V during May-July 2006 is accessible to the defendant as he is presently posted as Secretary, Principal Chief Engineer, Baroda. DW-1 Sh. Mohit Lila denied having any personal knowledge regarding the quotations invited in the year 2006 and stated that the file of the invitation made in 2006 by the office of the Assistant Divisional Engineer, Northern Railway, Hazrat Nizamuddin, New Delhi was neither traceable in his office nor in the finance section of the Divisional Railway Manager's office. DW-1 Sh. Mohit Lila also denied any knowledge of the fact that Sh. Ghisawan, Sh. Budhu and Sh. Jabar were working as keymans of the defendant at the relevant time and that Sh. Jitender Kumar had given any oral directions to the plaintiff to carry out the work before execution of a formal agreement. However, DW-1 Sh. Mohit Lila admitted that DAL Area, Chanakyapuri is a low lying area where water accumulates in every monsoon season and that during his tenure in the past 3 years, a pump was placed in DAL Area, Chanakyapuri for pumping of water.
15. In his examination in chief, DW-2 Sh. Ghisawan stated that he is an illiterate person and he had never met the plaintiff prior to 3.6.2011. DW-2 Sh. Ghisawan denied that he had supervised any work done by the plaintiff during 15.7.2006 to 14.9.2006. Upon being asked a Court question, DW-2 Sh. Ghisawan stated that he had not been read over and explained the contents of his affidavit and he had no knowledge, whether the contents of his affidavit were correct.
Civil Suit No.241/10 :8:16. During cross examination, DW-2 Sh. Ghisawan stated that he was working as a keyman and that in 2006, he was working at Chanakyapuri/Safdarjung area. Also, DW-2 Sh. Ghisawan stated that the Chanakyapuri/Safdarjung is a low lying area.
17. In his examination in chief, DW-3 Sh. Budhu stated that he is an illiterate person and he had never met the plaintiff prior to 3.6.2011. DW-3 Sh.Budhu denied that he had supervised any work done by the plaintiff during 15.7.2006 to 14.9.2006. Upon being asked a Court question, DW-3 Sh. Budhu stated that he had not been read over and explained the contents of his affidavit and he had no knowledge, whether the contents of his affidavit were correct.
18. During cross examination, DW-3 Sh. Budhu stated that he was working as a gangman in 2006 at Chanakyapuri/Safdarjung area. Also, DW-3 Sh. Budhu stated that the Chanakyapuri area is a low lying area that gets flooded with water in monsoon season. Upon being cross examined regarding the nature of work of a gangman and a keyman, DW-3 Sh. Budhu stated that as a gangman, he checks 3 - 3½ kms of railway track every day and upon being given the duty of a keyman, he is expected to check that all bolts are in place and in case, something is found missing, to make an entry in the printed booklet given by the railways. In addition to the aforesaid, DW-3 Budhu admitted that he, Sh. Jabar and Sh. Ghisawan were working as keyman in 2006 and PW-2 Sh. Ramji Civil Suit No.241/10 :9: Lal was their supervisor. DW-3 Sh. Budhu denied his signatures at point C on page 3 and 4 of the log book, Ex.PW1/1 and denied that he was testifying under coercion by his seniors. After cross examination of DW-3 Sh. Budhu, the defendant evidence was closed.
19. I had heard Sh.Satyaprakash Gupta, Ld. Advocate for the plaintiff and Sh.KS Ahuja, Ld. Advocate for the defendant on 19.8.2011, 27.8.2011 and 29.8.2011. The issue wise findings, in this case are as follows:
ISSUE NO.1
20. In support of the case of the plaintiff on this issue, the Ld. Advocate for the plaintiff had drawn reference to the judgment of the Hon'ble High Court of Madhya Pradesh in Ram Bihari Lal v JN Srivastava, AIR 1985 MP 150 and submitted that for the purpose of calculating the period of limitation for filing the present suit, the plaintiff is entitled to get the benefit of the period of two months, spent by the plaintiff, while waiting for the defendant to reply to the notice issued under Section 80 of the Code of Civil Procedure, 1908.
21. The Ld. Advocate for the defendant had not rendered any assistance on this issue.
22. After hearing the Ld. Advocates and perusing the record of the Court file in respect of this issue, I find it necessary Civil Suit No.241/10 :10: to refer to the judgment of the Hon'ble High Court of Madhya Pradesh in Ram Bihari Lal v JN Srivastava (supra). In the said judgment, the Hon'ble High Court, while calculating the period of limitation, had excluded the period of 2 months spent by the plaintiff, after issuing a notice under Section 80 of the Code of Civil Procedure, 1908. While doing so, the Hon'ble High Court had observed, "There is no merit in the contention that the suit is barred by limitation. The deceased died on 3-10-1958 and the suit has been filed on 3-10-1959, notice under S. 80 C.P.C. was served on 31-8-1959, two months notice period has to be excluded, and the suit is, therefore, well within the period of one year's limitation."
23. In my view, the principle applied in the aforesaid judgment, applies to the present case and a period of two months is to be excluded while determining the period of limitation for filing the present suit. As per record, the plaintiff has claimed the amount of Rs.94,933/- as price of the services rendered to the defendant during 15.7.2006 to 14.9.2006 and the present suit has been filed on 12.11.2009. Since, the suit had been filed within 3 years and 2 months from 14.9.2006, I find that it has been filed within the period of limitation
24. In view of the aforesaid discussion, the issue is decided in favour of the plaintiff and against the defendant. It is held that the suit has been filed within the period of limitation prescribed under the law of limitation i.e. the Limitation Act, 1963.
Civil Suit No.241/10 :11: ISSUE NO. 225. In support of the case of the plaintiff on this issue, the Ld. Advocate for the plaintiff had submitted that the testimony of the plaintiff supported by the unchallenged testimony of PW-2 Sh. Ramji Lal establishes that the plaintiff had provided services to the defendant during 15.7.2006 to 14.9.2006. Therefore, the plaintiff is entitled to the principal amount of Rs.94,933/-.
26. Upon being questioned regarding the applicability of the Article 299 of the Constitution of India, the Ld. Advocate for the plaintiff had drawn reference to the judgment of the Hon'ble Supreme Court of India in Mulamchand v State of Madhya Pradesh, AIR 1968 SC 1218, M/s Bengal Coal Co. Ltd. v The Union of India, AIR 1971 Calcutta 219 and Municipal Committee, Kishan Ganj v Maharaja Kishangarh Mills, AIR 1961 Rajasthan 6. On the strength of the said judgments, the Ld. Advocate for the plaintiff had submitted that inspite of the fact that no formal contract was executed between the plaintiff and the defendant, this Court can grant the relief claimed by the plaintiff under Section 70 of the Contract Act, 1872.
27. In support of the case of the defendant on this issue, the Ld. Advocate for the defendant had reiterated the defence taken by the defendant that no formal contract was executed between the parties and therefore, the defendant is not liable to pay any money to the plaintiff. In support of his submission, the Ld. Advocate had relied upon the judgment of the Hon'ble Civil Suit No.241/10 :12: Supreme Court of India in Life Insurance Corporation of India v Raja Vasireddy Komalavalli Kamba & Ors, AIR 1984 SC 1014 and the judgments of various Hon'ble High Courts in Kamta Prasad v IInd Additional District Judge Mainpuri & Ors, AIR 1997 Allahabad 201, Bijoy Ballav Kundu & Anr. v Tapeti Ranjan Kundu, AIR 1965 Calcutta 628, B. Jaya Babu v The Regional Manager (GR), APSRTC & Ors, AIR 1996 Andhra Pradesh 30 and Sagora Bibi v Sk. Manik & Ors, AIR 1987 Calcutta 86.
28. After hearing the Ld. Advocates and perusing the record of the Court file in respect of this issue, I find it necessary to refer to the law laid down in Mulamchand v State of Madhya Pradesh (supra), M/s Bengal Coal Co. Ltd. v The Union of India(supra) and Municipal Committee, Kishan Ganj v Maharaja Kishangarh Mills (supra).
29. In Mulamchand v State of Madhya Pradesh (supra), it has been observed, "6. In our opinion, the reasoning adopted by the trial court and by the High Court for rejecting the claim of the appellant is not correct. It is now well established that where a contract between the Dominion of India and a private individual is not in the form required by Section 175 (3) of the Government of India Act, 1935, it was void and could not be enforced and therefore the Dominion of India cannot be sued by a private individual for breach of such a contract. (See the decision in Seth Bikhraj Jaipuria v. Union of India, 1962 (2) SCR 880 = (AIR 1962 SC 113)). It was stated in that case that under Section 175 (3) of the Civil Suit No.241/10 :13: Government of India Act, 1935, the contracts had (a) to be expressed to be made by the Governor-General, (b) to be executed on behalf of the Governor-General and (c) to be executed by officers duly appointed in that behalf and in such manner as the Governor-General directed or authorised. The evidence in the case showed that the contracts were not expressed to be made by the Governor-
General and were not executed on his behalf. It was held by this Court that the provisions of S. 175 (3) were mandatory and the contracts were therefore void and not binding on the Union of India which was not liable for damages for breach of the contracts. The same principle was reiterated by this Court in a latter case - State of West Bengal v. B. K. Mondal and Sons, 1962 Supp (1) SCR 876 = (AIR 1962 SC 779). The principle is that the provisions of Section 175 (3) of the Government of India Act, 1935 or the corresponding provisions of Article 299 (1) of the Constitution of India are mandatory in character and the contravention of these provisions nullifies the contracts and makes them void. There is no question of estoppel or ratification in such a case. The reason is that the provisions of Section 175 (3) of the Government of India Act and the corresponding provisions of Article 299 (1) of the Constitution have not been enacted for the sake of mere form but they have been enacted for safeguarding the Government against unauthorised contracts. The provisions are embodied in Section 175 (3) of the Government of India Act and Article 299 (1) of the Constitution on the ground of public policy - on the ground of protection of general public - and these formalities cannot be waived or Civil Suit No.241/10 :14: dispensed with. If the plea of the respondent regarding estoppel or ratification is admitted that would mean in effect the repeal of an important constitutional provision intended for the protection of the general public. That is why the plea of estoppel or ratification cannot be permitted in such a case. But if money is deposited and goods are supplied or if services are rendered in terms of the void contract, the provisions of Section 70 of the Indian Contract Act may be applicable. In other words if the conditions imposed by Section 70 of the Indian Contract Act are satisfied then the provisions of that section can be invoked by the aggrieved party to the void contract. The first condition is that a person should lawfully do something for another person or deliver something to him; the second condition is that in doing the said thing or delivering the said thing he must not intend to act gratuitously; and the third condition is that the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof. If these conditions are satisfied, Section 70 imposes upon the latter person the liability to make compensation to the former in respect of, or to restore, the thing so done or delivered. The important point to notice is that in a case falling under Section 70 the person doing something for another or delivering something to another cannot sue for the specific performance of the contract, nor ask for damages for the breach of the contract, for the simple reason that there is no contract between him and the other person for whom he does something or to whom he delivers something. So where a claim for compensation is made by one person against another under Section 70 it Civil Suit No.241/10 :15: is not on the basis of any subsisting contract between the parties but on a different kind of obligation. The juristic basis of the obligation in such a case is not founded upon any contract or tort but upon a third category of law, namely, quasi-
contract or restitution. In Bibrosa v.
Fairbairn, 1943 AC 32 Lord Wright has stated the legal position as follows :
"......any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English Law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution."
7. In Nelson v. Larholt, (1948) 1 KB 339 Lord Denning has observed as follows :
"It is no longer appropriate to drawdistinction between law and equity. Principles have now to be stated in the lightof their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular framework. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires."
30. In M/s Bengal Coal Co. Ltd. v The Union of India(supra), it has been observed, Civil Suit No.241/10 :16: "Mr Ghose next contends that the learned Judge was in the wrong in holding that Section 70 of the Contract Act does not apply. In Mulam Chand's case the Supreme Court observed that even in the case of a void contract under Section 175(3) of the Government of India Act or the corresponding provision of Art. 299(1) of the Constitution, the provision of Section 70 can be invoked by the aggrieved party to the void contract. The first condition to be satisfied under the section is that a person should lawfully do something for another person or deliver something to him; the second condition is that in doing the said thing or delivering the said thing he must not intend to act gratuitously, and the third thing is that the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof. If these conditions are satisfied Section 70 imposes upon the latter person the liability to make compensation to the former in respect of or to restore the thing so done or delivered."
31. In Municipal Committee, Kishan Ganj v Maharaja Kishangarh Mills (supra), it has been observed, "It would be extremely inequitable and unjust to held that when a contract has been entered into by authorised persons and is found to be unenforceable for want of certain formalities, the advantage gained by that party should not be, when it was not intended to be gratuitous, restored or compensated. The relief which a person asks for under S. 65 is not forbidden by any law and it cannot be legitimately argued that in trying to secure such a relief, he is attempting to do indirectly what he had Civil Suit No.241/10 :17: been forbidden by law to do directly.
(5) Section 70 of the Contract Act is somewhat broader in its effect. It says:
"Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or restore, the thing so done or delivered".
It applies to those cases where irrespective of any contract or agreement, a person lawfully does something for another person or delivers anything to him which was never meant to be gratuitous and the other person has enjoyed the advantage, the latter is bound to make restitution to the former, Section 70 therefore applies where all these three elements are present; namely:
(i) that a person has lawfully done something for another person or delivered something to him,
(ii) that he does not intend doing so gratuitously and
(iii) that the other person has enjoyed the benefit thereof.
(6) The learned counsel for the appellant urges that the relief under S.65 of the Contract Act should not be granted where there is nothing to show in the pleading that any such relief claimed. It is suggested that in granting any such relief the court would be introducing a new cause of action which was not set up in the plaint and when the pleading was never sought to be amended on that line. Reliance has been placed on a decision of the Calcutta High Court in New Churulia Coal Co. Ltd. v. Union of India, AIR 1959 Cal 585.
Where further facts require to be investigated, it may be necessary to insist upon such an averment, in the pleading so Civil Suit No.241/10 :18: as not to take the defendant by surprise before granting relief under S. 65 of the Contract Act; but if on the facts found there is no difficulty in granting the equitable relief, it would be unreasonable to refuse it on any such technicality. Das Gupta C.J. (as he then was ) recognised this principle in his judgment in the above case relied upon by the defendant. He observed:
"I have, therefore, come to the conclusion that the mere fact that a claim under S. 65 of the Indian Contract Act on the basis that the contract had been discovered to be void, was not made by the plaintiff in his plaint, is not by itself a sufficient reason why he should not be allowed to raise that point.
Where further facts require to be investigated, it would be reasonable to proceed by way of an amendment of the plaint to add such arguments. Where, however, further investigation of facts is not necessary, the Court would be justified in giving the plaintiff relief under the provisions of S. 65 of the Indian Contract Act even without a formal amendment of the plaint".
32. In my view, the correct position of law that emerges from the aforesaid observations is that Article 299 of the Constitution of India does not bar the grant of an equitable relief to a plaintiff under Section 70 of the Contract Act, 1872; that the equitable relief under Section 70 of the Contract Act, 1872, can be granted to a plaintiff, provided the conduct of the plaintiff is upright and the ingredients of Section 70 of the Contract Act, 1872 are satisfied and that the mere failure of the plaintiff to plead that he is claiming equitable relief as per Section 70 of the Contract Act, 1872 does not, by itself, constitute sufficient Civil Suit No.241/10 :19: reason, to deny the said relief to the plaintiff.
33. In the present case, I find that the conduct of the plaintiff is upright as he has approached this Court with clean hands by himself stating that no formal contract was executed between the parties and that he had started working for the defendant because he was directed to do so by Sh. Jitender Kumar, Assistant Divisional Engineer, Northern Railway, Hazrat Nizamuddin, New Delhi and because the work was of an emergent nature. In contrast to the said conduct of the plaintiff, I find that the conduct of the defendant has been equivocal and deficient, at least, at three instances, stated below:-
(i) During the pre-trial stage, the plaintiff had filed an application under Order 11 Rule 12 of CPC seeking discovery of the documents relating to the invitation made by the defendant on 30.6.2006. In response to the application, the defendant had filed an affidavit stating that the documents relating to the tender dated 30.6.2006 and quotation dated 10.7.2006 are no longer available with the office of the defendant. In my view, the said affidavit filed on behalf of the defendant, smacked of malafides because it did not give any explanation as to how a government department had lost the record of a tender issued in 2006 i.e. within 3 years, especially when the first legal notice issued by the plaintiff had been served on the defendant on 29.4.2009. Also, in my view, the failure of the defendant to produce the documents relating to the tender dated 30.6.2006 and quotation dated 10.7.2006 is to be read against the Civil Suit No.241/10 :20: defendant as per Illustration (g) of the Evidence Act, 1872 and it is to be presumed that the averments made by the plaintiff regarding the tender dated 30.6.2006 and quotation dated 10.7.2006 are true and correct version of the facts.
(ii) In the affidavit filed by Sh. Mohit Lila in response to the application filed by the plaintiff under Order 11 Rule 12 of CPC, it was admitted by Sh. Mohit Lila that the quotations in question were opened on 6.7.2006. However, during cross examination, DW-1 Sh. Mohit Lila stated that he had no personal knowledge about the invitation published on 30.6.2006 and the file was not traceable in his office as well as the Finance Section of the Divisional Railway Manager's office. In my view, either the statement made in the affidavit of Sh.Mohit Lila is incorrect or the statement made by DW-1 Sh. Mohit Lila during cross examination is false. Either way, the inconsistent statements made by Sh. Mohit Lila, result in the conclusion that an adverse inference has to be drawn against the defendant.
(iii) During cross examination, DW-1 Sh. Mohit Lila had stated that Sh. AK Singh, who was the Senior Divisional Engineer-V during May to July 2006 was accessible to the defendant as he is presently posted as Secretary, Principal Chief Engineer, Baroda House. In my view, the fact that the defendant did not examine Sh. AK Singh, despite the fact that he was available, also results in the conclusion that an adverse inference has to be drawn against the defendant.
Civil Suit No.241/10 :21:34. With respect to the fulfillment of the ingredients of Section 70 of the Contract Act, 1872, I find that all the ingredients have been fulfilled by the plaintiff. The first ingredient i.e. the fact that the plaintiff had lawfully done the work for the defendant, is proved by the evidence of PW-1 Sh. Gurdarshan Singh and PW-2 Sh.Ramji Lal. Both PW-1 Sh. Gurdarshan Singh and PW-2 Sh. Ramji Lal had testified that the plaintiff had worked for the defendant during 15.7.2006 to 14.9.2006. In addition, PW-2 Sh. Ramji Lal had identified his signatures on the log book, Ex.PW1/1 and the letter dated 31.8.2006, Ex.PW1/3. During cross examination, no suggestion was put by the Ld. Advocate for the defendant to PW-1 Sh. Gurdarshan Singh and PW-2 Sh. Ramji Lal regarding the non supply of services by the plaintiff. In fact, the Ld. Advocate for the defendant had not even put one question to PW-2 Sh. Ramji Lal, who had expressly stated that he had supervised the work done by the plaintiff. Later, the said testimony of PW-2 Sh. Ramji Lal was corroborated by DW-3 Sh. Budhu, who admitted that in 2006, he was working under the supervision of PW-2 Sh. Ramji Lal. In my view, the inevitable conclusion that follows from the aforesaid testimonies is that the plaintiff had lawfully done the work for the defendant.
35. The second ingredient i.e. the fact that the plaintiff had not intended to work gratuitously, is proved by the testimony of PW-1 Sh. Gurdarshan Singh, who had expressly stated that he had participated in the tender issued on 30.6.2006 and offered to work at the rate of Rs. 1539/- per day.1 1 In paragraph 7 of the affidavit filed in response to the application under Order 11 Civil Suit No.241/10 :22: In my view, if the plaintiff intended to act gratuitously, he would not have participated in the tender issued on 30.6.2006.
36. The third ingredient i.e. the fact that the defendant had enjoyed the benefit of the services rendered by the plaintiff is proved by the unchallenged 1 testimony of PW-1 Sh. Gurdarshan Singh and PW-2 Sh. Ramji Lal, who had testified that the services were rendered to the defendant and entries were maintained in the log book, Ex.PW1/1, bearing the signatures of PW-2 Sh. Ramji Lal, DW-2 Sh. Budhu, DW-3 Sh. Ghisawan, Sh.Harish Kumar, Sh. Jabbar and Sh. RK Sahani. Also, in my view, the aforesaid fact is also proved by the inability of the defendant to produce any evidence regarding the person who had provided the services during 15.7.2006 to 14.9.2006, if the plaintiff had not provided the services 2.
37. Thus, as a net result of the aforesaid discussion, the issue is decided in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to the equitable relief under Section 70 of the Contract Act, 1872 and therefore, the defendant is liable to pay Rs.94,933/- to the plaintiff as price of the non gratuitous services rendered by the plaintiff during 15.7.2006 to 14.9.2006.
Rule 12 of CPC, it has been admitted by Sh. Mohit Lila that the quotations in question were opened on 6.7.2006.
1 During cross examination, no question regarding non supply of service was put to PW-1 Sh. Guardarshan Singh or to PW-2 Sh. Ramji Lal. 2 Almost all the witnesses appearing in this Court, had testified that DAL area, Chanakyapuri is a low lying area that requires use of water pumps and generator for pumping of water during every monsoon season. If the plaintiff had not supplied the services in 2006, then some other person would have supplied the services to the defendant. Thus, the failure of the defendant to disclose the name of such person has to be read against the defendant.
Civil Suit No.241/10 :23:ISSUE NO.3
38. The onus, in respect of this issue, was placed on the plaintiff. By proving that the plaintiff is entitled to the amount of Rs.94,933/-, the plaintiff has established that he is entitled to interest. In the plaint, the plaintiff has claimed pre-litigation interest of Rs.45,000/- for 14.9.2006 to 12.11.2009. Also, the plaintiff has claimed pendente-lite and future interest at the rate of 15% per annum.
39. In respect of the claim of pre-litigation interest of Rs. 45,000/-, I find that it is not maintainable because there was no agreement between the parties regarding payment of interest at the rate of 15% per annum and because the plaintiff has failed to prove the existence of any any custom, trade practice or usage, as per which, the defendant was/is liable to pay pre- litigation interest at the rate of 15% per annum to the plaintiff. In my view, in the present case, the plaintiff can only be entitled to pre-litigation interest at the rate of 6% per annum because the plaintiff has delayed the filing of this suit and taken his own time in approaching this Court for redressal of his grievance. Upon calculation, I find that simple interest at the rate of 6% per annum on the sum of Rs. 94,933/-, for the period 14.9.2006 to 12.11.2009 amounts to Rs. 18,005/-.
40. In respect of the claim of pendente-lite and future interest at the rate of 15% per annum, I find that the rate of interest claimed by the plaintiff is excessive and the ends of Civil Suit No.241/10 :24: justice would be met, if the plaintiff is granted pendente-lite and future interest at the rate of 6% per annum.1 ISSUE NO. 4
41. In respect of this issue, upon perusing the written statement filed by the defendant, I find that it has not been properly verified as per Order 6 Rule 15 of CPC. However, in my view, this defect does not go to the root of the matter and cannot result in nullifying the defence raised by the defendant. Thus, the issue is decided in favour of the defendant and against the plaintiff.
RELIEF
42. In view of the findings on the aforesaid issues, the suit of the plaintiff is partly decreed against the defendant for a sum of Rs.1,12,938/- (Rupees One Lac Twelve Thousand Nine Hundred and Thirty Eight Only) alongwith pendente-lite and future interest at the rate of 6% per annum. The parties shall bear their own costs.
43. Before parting with this Judgment, it is clarified that the judgments cited by the Ld. Advocate for the defendant have not been discussed in this judgment because the plaintiff has been granted relief under Section 70 of the Contract Act, 1872 1 As per the judgment of the Hon'ble Supreme Court of India in Central Bank of India v Ravindra, AIR 2001 SC 3095, the grant of pendente-lite and future interest is a subject matter of the discretion of the Court and not to be governed by the agreement between the parties. The Interest Act, 1978 contemplates the grant of interest at the rate of 6% per annum.
Civil Suit No.241/10 :25:that deals with quasi contracts and not contracts, per-se.
After preparation of the decree-sheet, the file shall be consigned to the Record Room.
Announced in the Open Court (Jay Thareja) On 09.09.2011 Civil Judge-I, New Delhi District New Delhi Civil Suit No.241/10