Delhi District Court
K L Monga vs The Executive Engineer Cpwd And Anr on 4 November, 2023
IN THE COURT OF MS. BARK.HA GUPTA, DISTRICT
JUDGE (COMMERCIALCOURT)-06, CENTRAL
DISTRICT, TIS HAZARI COURT, DELHI
C.S. (Comm) No.1615/2019
CNR No.DLCT0l-011517-2019
Sh. K.L. Monga
S/o. Late Daulat Ram Monga,
Proprietor ofM/s. Jal Suraksha Engineers
Office at -2157 /T-2, First Floor,
Main Patel Road, Guru Arjun Nagar,
New Delhi- I l0008.
Through his SPA holder/ son
Sh. Ravi Monga
...... Plaintiff
Versus
I. The Executive Engineer,
Central Public Works Department,
Noida Central Division,
J.P. Bhawan, New Delhi-110002
.... Defendant no. I
2. Union of India,
Ministry of Housing & Urban Affairs,
(Central Public Works Department)
Nirman Bhawan, New Delhi- I I000 I,
Through its Chief Secretary/ Secretary.
. ... Defendant no. 2
Date of Institution 28.08.2019
Final arguments 23.09.2023
Date of decision 04.11.2023
CS (Comm ) No.1615/2019 K.L. Monga Vs . The Executive Engineer & Anr. page I of 25
JUDGMENT
1. The plaintiff namely Sh. K.L. Monga who is the proprietor of 'Mis. Jal Suraksha Engineers' (hereinafter referred to as the 'plaintiff) has filed a suit for declaration that the letter bearing no. 23 (137)/GCC/2018-19/405 dated ll.03. 20l 9 may be declared as null and void and also for recovery of Rs.21,84,539/- (Rs. Twenty One Lakh Eighty Four Thousand Five Hundred Thirty Nine only). He has also sought relief of permanent and perpetual injunction against the defendants i.e. the Executive Engineer, Central Public Works Department (hereinafter referred to as the 'defendant no. l ') and Union of India, Ministry of Housing and Urban Affairs, Central Public Works Department (hereinafter referred to as the 'defendant no. 2').
2. Brief facts of the case as revealed from the plaint are that the plaintiff is doing construction work in various government departments including in Delhi. Further, he has duly authorised his son Sh. Ravi Monga to file and sign the suit and also to proceed with the suit vide Special Power of Attorney dated 18.06.2019 which he executed in favour of his son, which was duly attested on 16.07.2019.
3. The plaintiff submit that an intimation letter bearing no. 23(137)GCC/2018-19/405 dated 11.03.2019 was sent by the concerned Superintending Engineer of the defendants regarding CS (Comm) No.1615/2019 K.L. Monga Vs. The Executive Engineer & Anr. page 2 of 25 levy of compensation on him under Clause 2 of the Agreement No. 07/EE/NCD/2015-16, which was executed between him and the defendant no. 1 regarding execution of work of providing installing, testing and commissioning of sub-starter set at NIB, A- 32, Sector-62, Noida on total tender/ contractual amount of Rs.2,18,45,394/- (Rupees Two Crore Eighteen Lakh Forty Five Thousand Three Hundred Ninety Four only).
4. Further, the Superintending Engineer of the defendants as per Clause 2 of the agreement informed him that he is liable to pay compensation in the sum of Rs.21,84,539/- (Twenty One Lakh Eighty Four Thousand Five Hundred Thirty Nine only) as he was responsible for delay of 249 days in execution of the work assigned to him.
Further, the defendant no. I also sent him a notice dated 21.05.2019, vide which, he directed the plaintiff to deposit the said amount, which the plaintiff received on 25.05.2019.
5. The plaintiff further submit that after receiving the letter bearing No. 54/NIB/NCD/2015-16/914 dated 30.05.2015 on 01.06.2015, he vide his letter dated 07.06.2015 intimated to the defendants that he has mobilized all his resources and manpower at the site to execute the awarded work and also requested the defendants to hand him over the complete hindrance free site.
6. The plaintiff further submit that the work was to CS (Comm) No. 1615/2019 K.L. Monga Vs. The Executive Engi neer & Anr. page l of 25 commence from 04 .06.2015 which was to be completed on
03. I 0.20 I 5 as per the agreement between the parties, however, the defendants did not hand him over the site till 08.06.2015 . He further submit that after taking over the site in compliance of letter dated 05.06.2015 issued by the deputy director (Admn), the Assistant Engineer of the defendants also. sent him a letter dated 08.06.2015, vide which, he confirmed the date of handing over the site to the plaintiff.
7. The plaintiff further submit that he sent a covering letter dated 09 .06.20 I 5 to the Office of the defendant no. I, vide which he submitted the drawings and other documents for execution of the work in the Office of the defendants and vide his letter dated 10.06.2015, he intimated to the defendants about appointment of two Site Civil Engineers for executing the work.
He further submit that the specific site for execution of the work was not decided by the concerned officers of the defendants as was acquired by the letter written by the Deputy Director (Administration) bearing reference no. S.1-129/2010- NIB/ENGG(C) Vol-II/760 dated 15.07.2015 to the Assistant Engineer of the project.
Thereafter, the plaintiff, vide his another letter bearing no. JSE/SS/NIB/15 dated I 1.08.2015 informed the Assistant Engineer (Civil)-II ofNCD ofCPWD, that the civil tank drawing were delivered to him only on 25.07.2015 and the work was CS (Comm) No.1615/2019 K.L. Monga Vs. The Executive Engineer & Anr. page 4 of 25 ru /.,,,.-rJb , i 'tvv/ I already started on 27 .7.2015 . Further, he also intimated that the security guard had stopped the work for the last four days and requested the defendants to take appropriate action for smooth execution of the work. He also submit that the proposed schedule of the work/ bar chart was also given in the said letter and submit that due to rainy season, the dates got fluctuated from the given programme/ schedule.
8. The plaintiff further submit that he also sent a letter dated 12.08.2015 to the defendants, vide which, he submitted the particulars of the Supervisor, whom he appointed for execution of the work, which letter was duly acknowledged by the Assistant Engineer of defendants vide letter dated 14.08.2015, which he addressed to the Deputy Director and thereafter, the Deputy Director (Administration) wrote a letter bearing no. S.1- 129/2010-NIB/ENGG(C) Vol.-11/1767 on 17.08.2015 to the Assistant Engineer of the project, as per which, he granted permission for entry of the raw material/ machinery i.e. JCB Truck and labour at NIB Campus as per request of the plaintiff.
9. The plaintiff further submit that he also submitted a letter on 02 .09.2015 in the Office of defendant no. 1 for approval of the design mix for Grade M-25 RMC and also sent another letter dated 21.09.2015 for raising demand of mild steel squares and round pipes for fabrication of the plant room and also sought approval to bring MS pipes of 'Jindal Hissar' make as the CS (Comm) No.1 615/2019 K.L Monga Vs. The Executive Engineer & Anr. page So r 25 approve d make was not available in the market.
He further submit that as per the oral instructions of the defendants, he use d th e MS Pipes of Jindal Hissar and also received payment for execution of this part of the work and further submit that he wrongly mentioned the date in his letter as 22.09.2015 instead of 21.09.2015. He further submit that he made a request vide his letter dated 26.09.2015 to the office of defendant no. 1, vide which, he sought for an electric connection at one point, which was to be provided by the defendants in terms of the agreement, but the defendant no. 1 did not give any reply and he also did not concede to the request of the plaintiff.
I 0. Further, since the electricity was not provided, hence, he again sent letters dated 07.10.2015 and 15.12.2015 to the defendants to provide him the electric connection at site.
He further submit that the delay from 26.09.2015 till 07.12.201 S was due to delay in execution of the work by the defendants. Further, he also sent a letter dated 04.12.2015 in the office of the defendant no. 1, vide which, he intimated that he had constructed the underground tank I/C enclosure of the subtracter set at site and stated that the parties verbally discussed about shifting of two monoblock motors which were already inistalled on the existing lab effluent existing lab storage pit in the office of the NIB and also requested as to whether two motors I/C accessories should be removed or would they be replaced CS (Comm) No.1615/201 9 K.L. Monga Vs. The Executi ve Engineer & Anr. page 6 of 25 ,[\J "\\ ?},,?;
~ ,--1 with the new ones.
11. The plaintiff submit that he also sent a letter dated 17.12.2015 in the office of the defendants, vide which, he requested for the closure of the main gate for two days on 19.12.2015 and 20.12.2015 to cut the RCC surface and to lay the PVC pipes and also sent another letter dated 22.12.2015 with the same request.
12. The plaintiff submit that the Assistant Engineer of the defendant also sent him a letter dated 15.03.2016 and asked him to submit the documents to the AE (E) for electrical connection of ETP/STP and stated that the electric connection was not provided to him despite request, however, in compliance of letter dated 15.03.2016, he submitted the requisite details and documents vide his letter dated 18.03.2016.
The plaintiff further submit that he sent letters dated 24.05 .2016 and 23.07.2016 to the defendant no. 1 and requested him to provide electricity connection as demanded by him earlier also for completion of the work and stated that the electric connection was provided only on 31.12.2016 and the substracter set was installed and commissioned successfully as intimated to him vide letter dated 12.01.2017 and further, he also requested for recording the completion and stated that the actual completion of work was recorded by the defendant no. I as 03.04.2017.
CS (Comm) No.1 615/20 19 K.L. Monga Vs. The Executive Engineer & Anr. page 7 of 25 . t"ff further submit that he sent the replies dated 13 . The p1am 1 24.09.2016, 21.10 .2016 and 26.10.2016, vide which, he gave _a . . k d further vide his bar chart of execution of the remammg wor an ' letters dated 21.11.2016, 28.11.2016 and 01.12.2016 in the office of the defendant no. 1, he intimated that despite their schedule for testing and energizing the plant ·m the JOIO · · t surv ey by NIB ' the 1 1ty of AE and JE of Civil date was postponed due to non ava1·1 ab·1· Department.
Further, NIB also refused to provide electric connection to the plaintiff from the main sub-station in the presence of JE (Electrical) of the defendants and hence, the plaintiff again gave the bar chart for execution of the remaining work vide his aforesaid letters and submit that all these facts created hindrance in execution of the work.
14. The plaintiff further submit that he also sent a letter dated 27.12.2016 to the defendants, vide which, he requested them for issuance of gate passes to remove the surplus material from the site and thereafter, he sent another letter on 07.01.2017 to the defendant no. 1, vide which, he requested NIB for collection of the samples in his presence as the plant was running. Further, vide his other letter dated 17.01.2017 sent to the office of defendant no. 1, the plaintiff intimated that he had installed and commissioned the plant at site on 12.01.2017 and also intimated that some decision was pending, for which no date was given and CS(Comm)No 1615/2019 KL Monga Vs TheExecut1veEngmeer &Anr page 8of 25 iW,,. /J/7 ty ('\\ V\ / he also requested him for recording the date of completion. Further, since no decision was taken so he again wrote letters on ' ' 01.02.2017 and 16.02.2017 to the defendants with the same request.
15. The plaintiff further submit that the Assistant Engineer of the defendants wrote a letter dated 21.02.2017 to the Manager, DPCC, Kashmere Gate, Delhi with a request for lifting the samples of sewage recycling water. Further, the plaintiff, vide his letter dated 20.3.2017 sent to the office of the defendant no. 1 stated that two skilled operators were provided to operate the plant at site, although, there was no such provision in the agreement and he also requested the defendants for recording the date of completion of the work.
16. The plaintiff further submit that the defendants pointed out certain defects in the executed work vide their letter dated 08.05.2017 and the plaintiff vide his letter dated 17.05.2017, requested the defendants to appoint a skilled operator for operating the plant at site as the plaintiff was withdrawing his skilled operator form the site within 48 hours and he also requested for issuance of the gate pass for removing the surplus material, equipments etc. from the site.
17. The plaintiff further submit that the Superintending Engineer of the defendants issued a show cause notice under CS (Comm) No.16 I 5/2019 K.L. Monga Vs. The Executive Engineer & Anr. page 9 of 25 y?
J;
clause 2 of the Agreement vide its letter dated 30.08.201S , whereby he admitted that the completion was recorded on 03.04.2017. The plaintiff submit that he is not admitting the date and he did not give any reply to the said show cause notice on 11.09.2018 to the Superintending Engineer of the defendants and further, the plaintiff vide his letter dated 18.01.2019 also mentioned about the detailed hindrances to the defendants, which are, reiterated as under:-
Total Days s. Nature of Period of No. Hindrances Hindrances 1 Site not availabl e 04.06.2015 to 27+31+8 66 Days from Client. 08.08.2015 2 Entering permissio n 11.08.2015 to 21+7 38 Days for materia I 17.09.2015 Machinery and Labours not given by client.
3 Electrical Power Point 26.09.2015 to 5+31+30 73 Days
not considerable for 07.12.2015 +7
execution of ETP
work from client and
shifting of Existing
Pump House.
4 Permission for closing 17.12.2015 to 7 Days 7 Days
of Main Gate (Entry) 23.12.2015
~or laying of Pipe
Imes not given by
client.
5 Power supply not 24.12.2015 to 8+366 374
available for 31.12.2016 Days
Energisation of ETP.
Total 558
C Days Days
-
CS(Comm)No.161512019 KL ~\,.,--V_;)
. . Monga Vs. The Executive Engineer & Anr· page 10 of 25 I
18. The plaintiff further submit that the show cause notice was issued on 30.08.2018 while the contract was not alive as the date of completion of work was 03.10.2015 as per the agreement.
Further, the delay in execution of the work was not approved by the defendants on the basis of clause 2 read .with clause 5 of the GCC of the Agreement.
He further submit that time was not extended in proportion to the delay which he has attributed to the defendants. Further, time was not the essence of the contract and the provisional extension of time / the extension of time was granted not once but again and again without adjudicating the responsibility of the delay and submit that extending the time in proportion to the delay attributed to the defendants without levy of compensation under clause 2 of the agreement should have been determined and deducted from the running bills or the amount payable to the plaintiff.
19. He further submit that the same should have been done by the defendants while the contract was still alive and stated that time was not the essence of the contract and further, clause 2 of the agreement could not be invoked in view of the case titled as "Hind Construction Contractors vs. Sate of Maharashtra, 1979 AIR (SC) 720".
f '.)''· page 11 of 25 CS (Comm) No.1 615/2019 K.L Monga Vs. The Executive Engincc~ . o/;Vl/7 v'\
20. The plaintiff submit that the delay in execution of the work was due to failure on the part of the defendants as they failed to perform their part of contract within time as and when demanded by the plaintiff in terms of the agreement.
Further, the plaintiff also sent a legal notice under Section 80 of CPC dated 28.05.2019 in the office of the defendant no. 1 and sent it by speed post on 29.05.2019, wherein he challenged the order of the Superintending Engineer of the defendants, imposing levy of compensation of Rs.21,84,539/- on him which was intimated to the plaintiffvide letter dated 11.03.2019.
21. The plaintiff further submit that the defendants sent him a notice, although there was arbitration clause no. 25 in the General Conditions of Contract and submit that in view of the legal proposition, Clause 2 the agreement is not arbitrable as is held in the case titled as "Vishwanath Sood Vs. U.O.1., AIR 1989 SC 952".
The plaintiff further submit that in pursuance of his legal notice, the defendants gave reply on 12.06.2019, however, they refused to withdraw the letter dated 11.03.2019 which was issued by the Superintending Engineer of the defendants to him. Further, the defendants did not provide him the copy of the general conditions of the contract, although, the plaintiff orally demanded the same.
22. The plaintiff submit that he had already invoked the clause [LJ ,/ \\,,.. v-2:i Y~r CS (Comm) No.1615/2019 K.L. Monga Vs. The Executive Engineer & Anr. page 12 of 25 no. 25 of the GCC by sending legal notice no.33/19 dated 17.06.2019 by speed post to the defendant no. 1, wherein he raised 10 claims to the tune of Rs.1,68,35,741.50/-. Further, the defendants gave reply to the said notice vide letter dated 01.07.2019 and thereafter, the defendant no. 1 also gave a detailed reply dated 03.08.2018 to the notices of the plaintiff dated 28.05.2019, 17.06.2019.and 20.06.2019.
The plaintiff also submit that he also applied for initiation of pre-mediation before the Central District Legal Services Authority, wherein the defendants filed their reply dated 26.07.2019, however, the matter could not be settled.
23. The plaintiff prays for passing a decree of declaration in his favour and against the defendants, vide which the order of imposition of levy of compensation/ penalty of Rs.21,84,539/- (Rupees Twenty One Lakh Eighty Four Thousand Five Hundred Thirty Nine only) under Clause-2 of the Contract which was intimated to him vide letter no. 23(137)/GCC/2018-19/405 dated 11.03.2019, may be declared as null and void.
He further pray that decree in the sum of Rs.21,84,539/- (Rupees Twenty One Lakh Eighty Four Thousand Five Hundred Thirty Nine only) alongwith interest@ 12% w.e.f. I 1.03.2019 till date of realization may also be passed in his favour and against the defendants.
The plaintiff further prays for passing a decree of permanent and perpetual injunction in his favour to restrain the CS (Comm) No.1615/2019 K.L. Monga Vs. The Executive Engineer & Anr. page 13 of 25 defendants from implementing the order which was intimated to him vide letter reference no. 23( 137)/GCC/2018-19/405 dated 11.03 .2019 by circulating the same in other division of its own department and other government organization with request to recover the amount of compensation as claimed from the legal proceedings in his favour.
The plaintiff also prays that the costs of the suit may also be awarded in his favour and against the defendants.
24. The defendants in their joint Written Statement have denied the submissions of the plaintiff. They submit that the suit of the plaintiff is not maintainable as the defendants have justified for the levying of compensation and stated that the plaintiff failed to complete the work within four months w.e.f. 04.06.2015 till 03.10.2015 as per first stipulation in the agreement which was duly executed between the plaintiff and defendant no. I vide agreement no. 07/EE/NCD/2015-16 dated 30.05.2015, even in the extended period of contract.
25. The defendants further submit that the suit of the plaintiff is not maintainable as admittedly, the work was not completed within the stipulated period of four months, though, there was no hindrance in execution of the work. Further, the delay is attributable solely to the plaintiff as he accepted various provisional extensions of time and though, time was extended, yet the plaintiff did not complete the work.
~ , ,,,1,,-;:, CS (Comm ) No.1615/201 9 K.L. Monga Vs. The Executive Engineer & Anr. page 14 of 25
26. The defendants further submit that the plaintiff did not give satisfactory reply to the show cause notice dated 30.08.2018 as per which, he was asked to show cause within I0- days from receiving the said notice as to why compensation should not be imposed upon him as per Clause 2 of the contract for delay in completion of the work and submit that the plaintiff did not mention the days/ dates of hindrance and he applied for extension of time for execution of the work vide his reply dated I 1.09.2018.
They further submit that the register no. 7 for site shows that the delay was due to hindrance of 300 days only, which was allowed by the defendants and time was extended but still the plaintiff did not complete the work and further submit that if delay in the execution of work was due to hindrance beyond the control of the plaintiff, then he should have justified.
27. The defendants further submit that in fact, there was hindrance of 300 days which was duly recorded in the hindrance register, which was maintained at site and submit that as such, there was no hindrance of 558 days from the date of starting the work till the date of the completion of the work i.e. from 04.06.2015 to 03 .04.2017.
The defendants further submit that the plaintiff is solely responsible for execution of the work for 249 days besides delay of 300 days and hence, the defendants were justified in levying CS (Comm) No.16 15/2019 K.L. Monga Vs. The Ex ecutive Engin eer & Anr. page 15 of 25 ~,>._\"11) '-A compensation of Rs.21,84,539/- (Rupees Twenty One Lak.h Eighty Four Thousand Five Hundred Thirty Nine) on the plaintiff.
They pray that the suit filed by the plaintiff is devoid of any merits and hence, it may be dismissed outrightly.
28. The plaintiff has filed rejoinder wherein he has reiterated whatever he has mentioned in the plaint and denied the submissions of the defendants.
29. As per record, vide order dated 22.02.2021, the following issues were framed by my Ld. Predecessor:-
(a) Issue no. 1 : Whether the plaintiff is entitled to recover any amount ofRs.21,84,539/- (Rupees Twenty One Lakh Eighty Four Thousand Five Hundred and Thirty Nine only) from the defendant? OPP
(b) Issue no. 2: Whether the plaintiff is entitled to declaration that letter of defendant vide no. 23(137/GCC/2018-19/405 dated I 1.03.2019 is null and void? OPP
(c) Issue no. 3: Whether the plaintiff is not entitled to the claim on the ground of delay in the execution of the work and attracting liability of levy of compensation, as per the preliminary objection nos. I and 7 of the defendant? OPD
(d) Issue no. 4: Whether the plaintiff is entitled to pendent-lite and future inte!est@ 12% per annum from 11.03.2019, if so on what amount? OPP CS(Comm) No.16 15/20 19 K.L. Monga Vs. The Executive Engineer &Anr. page 16of 25
(e) Issue no. 5: Who is entitled to cost and in what terms?
(f) Issue no. 6: Relief.
30. The plaintiff, in support of his case examined himself as PW- I. As per record, the defendant examined Sh. Anil Mittal, Executive Engineer, Noida Central Division, CPWD as DW-1.
31. I have heard final arguments as advanced by Advocate Sh.Umesh Chandra Mishra, Ld. Counsel for the defendants and have also gone through the material as placed on record. As per record, none appeared for the plaintiff to advance final arguments. Further, though an opportunity was given to the parties to file brief written synopsis, if they so desire within four days, however, it is only the defendants, who have filed the written submissions and the plaintiff has not filed any written synopsis.
32. Now, the paras underneath, in the issues are discussed:-
Firstly, the issue no. I is discussed which is as under:-
Issue no. I : "Whether the plaintiff is entitled to recover any amount ofRs.21,84,539/- (Rupees Twenty One Lakh Eighty Four Thousand Five Hundred and Thirty Nine only) from the defendant?" OPP The onus to prove the issue is on the plaintiff Sh. K.L. Monga.
CS(Comm) No.1615/2019 K.L. Monga Vs. ThcExccuti vc Enginccr &Anr. page \7of 25
33. The plaintiff examined himself as PW-1 and adduced evidence vide his affidavit Ex. PWI/A bearing his signatures at points A and B respectively, wherein he has testified that the defendants awarded him the work of installing, testing and commissioning of sub-starter set at NIB, A-32, Sector-62, Naida, on total tender/ contractual amount of Rs.2, I 8,45,394/- (Rupees Two Crores Eighteen Lakh Forty Five Thousand Three Hundred Ninety Four only) and further, after completion of formalities, an Agreement No. 07/EE/NCD/2015-16 was executed between him and the defendant no. 1, vide which, the date of starting this work was 04.06.2015 and date of completion was 03.10.2015 .
He further submit that he is the proprietor of 'Mis. Jal Suraksha Engineers' and is doing construction work in the various government departments, including in NCT of Delhi and has authorized his son Sh. Ravi Monga to give evidence before this Court.
He further testified that the work awarded by the defendants was supervised by his son Sh. Ravi Monga and Sh. Ravi Monga has personal knowledge of the day to day activities and the correspondence between the defendants and 'Jal Suraksha Engineers' . He has proved the copy of Special Power of Attorney executed by him in favour of his son Sh. Ravi Monga as Ex.PW-l(OSR) bearing his signatures at points C, D and E and also testified that he did not revoke or cancel the said SPA.
As per record, the defendant did not cross-examine the plaintiff/ PW-1.
CS (Comm) No. 161 5/201 9 K.L. Monga Vs. The Executive Engineer & Anr. page 18 of 25
34. The defendants, in support of their case, examined Sh, Anil Mittal (Executive Engineer, NOIDA Central Division, CPWD) as DW-1, who adduced evidence vide his affidavit Ex. DWI/A bearing his signatures at points A and B respectively. He also proved the following documents:-
i) True attested copy of the hindrance register as Ex.DW-1/1.
ii) True attested copy of the Extension of Time Proforma Part-I as DW-1/2.
As per record, the plaintiff did not cross examine him on any aspect.
35. From the plaint, it is revealed that the plaintiff has very categorically stated that he has duly authorized his son Sh. Ravi Monga to file the suit and to proceed with the case vide Special Power of Attorney dated 18.06.2019, which he executed in favour of his son and proved the same as Ex.PWl/1 and he also testified that he has not revoked or cancelled the said Special Power of Attorney. Further, his son used to deal with the defendants and he has entire knowledge of the case.
It is also pertinent to discuss here that the plaintif£' PW-1, vide his affidavit in evidence Ex.PWI/A stated that the defendants placed orders with him for total tender/ contractual amount ofRs.2,18,45,394/-, which he completed on 04.06.2015.
36. It is surprising to note that the plaintiff/ PW-I in his entire ,~A/ :(v?
Yl...,,/ , CS (Comm) No. 161 5/201 9 K.L. Monga Vs. The Executive Engineer & Anr. page I9 of 25 affidavit Ex.PWl/A has nowhere even remotely whispered about . ade in the plaint and allegations levelled by him the contentions m dants He has nowhere stated that if at all, the on any o f the d e1en • defendants owe him a sum of Rs.21,84,539/- as claimed by him in the plaint and nowhere whispered in his affidavit that any of the defendants has any liability to pay him any amount, for which he has filed the present suit. He has very specifically stated in his affidavit Ex.PWl/A that the work awarded by the defendants was supervised by his son Sh. Ravi Monga and his son has personal knowledge of day to day activities and the correspondence with the defendants. In fact, the plaintiff has not proved even a single document to show that he is entitled to recover the amount or any of the reliefs as claimed by him in the plaint from any of the defendants. The plaintiff has stated in the plaint that his son Sh. Ravi Monga is aware of the details of the case and has nowhere testified as to how he is entitled to any recovery from the defendants. Further, the plaintiff has not examined his son Sh. Ravi Monga, who as per the plaintiff used to deal with the defendants and has knowledge of the case.
37. It cannot be lost sight of that though, the defendants did not cross-examine the plaintiff/ PW-1 on any aspect, yet it is the plaintiff who has to prove his case and even at the cost of repetition, it is discussed that the plaintiff, in his entire affidavit, has nowhere stated that the defendants or any of the defendants owe him the claimed amount or any of the other reliefs. The cl/ ,,,'72> 'jY'-\,-\\ CS (Comm) No.16 15/2019 K.L. Monga Vs. The Executi ve Engineer & Anr. page 20 of 25 plaintiff/ PW- I has not uttered a single work against the defendants.
38. As per record, the defendants have also examined Sh. Anil Mittal, (Executive Engineer) as DW-l, who has testified vide his affidavit Ex.DWl/A. It is revealed that DW-l stated in it whatever defendants have stated in the Written Statement, which is not repeated here for the sake of brevity.
He has also proved the true attested copies of the Hindrance register and that of extension of time Proforma Part-I as Ex.OW-I/I and Ex.DW-1/2 respectively.
39 It cannot be lost sight of that the plaintiff has not cross- examined DW-1 on any aspect at all, though, DW-1 has proved relevant documents.
It is well settled law that if a witness is not cross-examined on any material aspect/point, then, it amounts to truthfulness of the same.
40. In the case in hand, the plaintiff has preferred not to cross- examine DWI, who is the most material witness of the defendants on any aspect at all. Further, the plaintiff has not disputed the documents Ex.OW-I/I and Ex.DW-1/2 as well on any ground and nothing is shown on record that DW-1 has deposed falsely or that the documents proved by him are forged or fabricated.
~r-1\---B CS(Comm) No.1615/2019 K.L. Monga Vs.ThcExccutivcEnginccr &Anr. pagc21 of 2S In the given facts and circumstances, the entire testimony of DW-l has remained unrebutted and uncontroverted by the plaintiff and further, the documents proved by DWI have also remained unchallenged and hence, the only reasonable conclusion that can be drawn is that the plaintiff has nothing to ask or to offer to DW-1 in the cross-examination and the plaintiff has admitted the version of DW-1 and the documents proved by him in entirety.
41. In considered opinion of the court, DW-1 has deposed in a straightforward, cogent and convincing manner and as such, there is no reason to doubt or disbelieve his version. Further, his testimony is sufficiently corroborated on material aspects by the documents, which are duly proved by him.
As such, nothing is shown on record, ifDW-1 has deposed falsely or that DW-1 has not come forward in narrating the true picture of the occurrence or that version of DW-1 suffers from any artificiality or exaggeration or any inherent infirmity, which goes to the root of the matter and shake his basic version. Hence, the only irresistible conclusion that can be drawn in the given facts and circumstances is that the plaintiff has nothing to ask or to offer to DW-1 in cross-examination and further, the plaintiff has also not disputed any of the documents proved by DW-1 and rather, the plaintiff has admitted them all.
42. Accordingly, m view of totality of the facts and ~\\,,,v> ,. v· CS (Comm) No.1615/201 9 K.L. Monga Vs. The Executive Engineer & Anr. page 22 of 25 circumstances of the case and the material as placed and proved on record, in considered opinion of the Court, the plaintiff has not been able to show that he is entitled to any of the reliefs claimed by him in the suit. In fact, the plaintiff has also miserably failed to prove that he is entitled to a sum of Rs.21 ,84,394/- from the defendants. Accordingly, this issue is decided against the plaintiff.
43. The issue no. 2 is discussed as under:-
lssue no. 2: "Whether the plaintiff is entitled to declaration that letter of defendant vide no. 23(137/GCC/2018-19/405 dated I 1.03.2019 is null and void?" OPP
44. The onus to prove this issue is also on the plaintiff, however, the plaintiff/ PW-1 vide his entire evidence vide affidavit Ex.PWl/A, has nowhere stated anything even remotely as to how he is entitled to the declaration that the letter bearing no. 23(137/GCC/2018-19/405 dated 11.03.2019 issued by the defendants be declared as null or void. In fact, the plaintiff is totally silent about it and has not even verbally testified anything about the said letter and further, he has not produced any document as well in support of his case. He has not examined his son Sh. Ravi Monga, who admittedly could have thrown light on it.
Accordingly, in view of the above, in considered opinion of the Court, the plaintiff has miserably failed to show anything \A/\A\"VJ CS (Comm ) No.1 61 5/2019 K. L. Monga Vs. l nc Executive Engineer & Anr. pl-'23 :~ 25 on record to declare the letter bearing no. 23(13 7/GCC/20 I 8- \ 19/405 dated 11.03.2019 issued by the defendants as null and void. This issue is accordingly decided against the plaintiff.
45. The issue no. 4 is discussed as under:-
Issue no. 4: "Whether the plaintiff is entitled to pendent-lite and future interest@ 12% per annum from 11.03.2019, if so on what amount?" OPP
46. The onus to prove this issue is on the plaintiff, however, in view of detailed discussion on Issues no. I and 2, in considered opinion of the Court, the plaintiff has miserably failed to show that he is entitled to to pendent-lite and future interest @ 12% per annum from I 1.03.2019 and also failed to show that he is entitled to the said rate of interest on what amount. Hence, this issue is decided against the plaintiff.
47. The issue no. 3 is discussed as under:-
Issue no. 3: "Whether the plaintiff is not entitled to the claim on the ground of delay in the execution of the work and attracting liability of levy of compensation, as per the preliminary objection nos. I and 7 of the defendant?" OPD
48. The onus to prove this issue is on the defendant and in view of the detailed discussion of Issue nos. 1 and 2 and also keeping in view that the defendants have examined Sh. Anil ~\_,y) CS (Comm) No.1615/2019 K.L. Monga Vs. The Executive Engineer & Anr. page 24 of 25 Mittal as DW-1 who has testified vide his affidavit Ex.DWI/A and has also proved the documents Ex.DWI/I and Ex.DWl/2 to prove that the plaintiff is not entitled to the claim on the ground of delay in the execution of the work and attracting liability of levy of compensation, as per the preliminary objection nos. 1 and 7 of the defendant.
It would also be worth mentioning that the plaintiff has not cross-examined DW-1 on any aspect and accordingly the entire testimony of DW-1 has remained unrebutted and uncontroverted by the plaintiff as already discussed earlier at length. This Issue is accordingly decided in favour of the defendants.
49. Now, the Issue nos. 5 & 6 are discussed as under:-
Issue no. 5: "Who is entitled to cost and in what terms?"
Issue no. 6: "Relief."
After going through the entire material placed on record and in view of the observations made by the Court on Issues nos. I, 2 and 3, in considered opinion of the Court, the plaintiff has miserably failed to prove his case and undoubtedly, the plaintiff is not entitled to costs of the suit. The suit of the plaintiff is hereby dismissed. No order is passed as to costs. File be consigned to Record Room as per rules after compliance of r necessary legal formalities.
Dictated and Announced today ~#\~\'<
i.e. on 04.11.2023
in the open Court (BARKHA GUPTA)
District Judge (Commercial Court-06)
Tis Hazari Courts, Delhi
CS (Com m) No.1615/2019 K.L. Monga Vs. The Executive Engineer & Anr. page 25 of 25