Delhi District Court
Krishan Kumar Gupta vs Municipal Corporation Of Delhi And Anr on 8 October, 2024
IN THE COURT OF AMIT KUMAR : DISTRICT JUDGE
(COMMERCIAL)-08 : TIS HAZARI COURTS, CENTRAL:
DELHI
(Commercial Case No. 1431/2023)
CNR No. DLCT01-015342-2023
KRISHAN KUMAR GUPTA
SOLE PROPRIETOR OF
M/S. KRISHAN KUMAR GUPTA
70, SWASTIC KUNJ, SECTOR-13,
ROHINI, DELHI-110085
.....PLAINTIFF
VS
MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER
CIVIC CENTRE, MINTO ROAD,
NEW DELHI-110002
....DEFENDANT
Date of institution of case : 27.10.2023
Date of arguments : 03.09.2024
Date of pronouncement of judgment : 08.10.2024
JUDGMENT:
1. Present is a suit seeking recovery of Rs. 11,67,666/- along with interest @ 12% per annum and the brief facts necessary for disposal of this suit as averred in the plaint are that the plaintiff is an enrolled contractor with MCD/defendant and was awarded work order no. EE(M-I)KPZ/SYS/2018-2019/172 dated 30.11.2018 for Development work in ward no. C-67, Paschim Vihar, KPZ. Stg. of boundary wall in Dashera Park, Jwalaheri Village in C-67, Paschim Vihar/KPZ. It is claimed that the plaintiff completed the work order to the satisfaction of defendant without any negative mark and visited the officials of -1- defendant for preparation and submission of the bill of the work order. Defendant completed the final measurement of the work in the measurement book and the same was accepted by the plaintiff and thereafter, 1st and final bill pertaining to the above said work order were prepared and accepted by the plaintiff and the defendant passed the first and final bill on 26.08.2019 for an amount of Rs. 8,46,135/- inclusive of Rs. 89,800/- as Security/earnest money. In the suit, the plaintiff has claimed the principal amount of the bill Rs. 7,56,335/- and the security amount of Rs. 89,800/- alongwith interest @ 12% per annum w.e.f. 01.06.2020 to 30.08.2023 of Rs. 3,21,531/-.
2. The defendant in the written statement did not dispute the award of the work order to the plaintiff. It was, however, claimed that the plaintiff has not submitted bill for payment as required under the contract and has not complied with the clause 7, 9, 17 and 45 of the General Contract Clauses (GCC) and 4(b) of the Work Order and therefore, is not entitled to suit amount. It was stated that the plaintiff did not submit labour clearance certificate as required. It was claimed that suit is pre mature as submission of bill is essential for payment and failure to submit the bill on the part of plaintiff renders him illegible for the suit amount.
3. In the replication, the contents of the written statement were disputed and that of the plaint were reiterated.
4. On the pleadings of the parties, following issues were framed on 22.04.2024:
-2-1) Whether plaintiff is entitled to recovery of the suit amount ?OPP
2) Whether plaintiff is entitled to interest? If yes, at what rate and for what period? OPP
3) Whether the plaintiff failed to comply with the necessary terms and conditions of NIT,work order and GCC and if yes, to what effect? OPD
4) Relief.
5. The plaintiff to prove its case examined himself as PW1 whereas the defendant examined its Assistant Engineer(M- I)KPZ, as the sole witness.
6. I have heard the submissions and have perused the record and my findings on the issues is as under:
ISSUE NO. 1 & 2:
7. The onus of proving both these issues was on the plaintiff. The plaintiff in his examination in chief, proved on record the copy of the work order as Ex. PW1/1, copy of the first and final bill dated 26.08.2019 as Ex. PW1/2, copy of GCC as Ex. PW1/3 and legal notice as Ex. PW1/4. In the brief cross examination, the witness admitted that all the terms and conditions of the work order were read by him. He did not file the first and final bill alongwith measurement with the defendant nor he submitted the labour clearance certificate. He did not apply for extension of time to complete work order. He has -3- received the bill amount but not the earnest money/security amount.
8. The defendant witness in his examination in chief reiterated the contents of the written statement. In the cross examination, he admitted that the plaintiff completed the entire work to the satisfaction of the defendant. He admitted that payment of the principal amount of Rs.7,56,335/- was released on 28.06.2024 to the plaintiff and security amount has been withheld.
9. It was argued by Ld. Counsel for the plaintiff that the plaintiff completed the work to the satisfaction of the defendant. The defendant has prepared the bill but did not release the payment till this suit was filed. Payment of only principal amount was released on 28.06.2024 and plaintiff therefore is entitled to refund of security amount and also interest on delayed payment of principal amount and security amount as well. It was argued that as per Clause 9 of the GCC, the defendant was bound to make the payment within six months, if the tender value is upto Rs. 5 Lac and within nine months, if it exceeds Rs. 5 Lac and since no payment has been made by the defendant as per GCC, the plaintiff is entitled to the refund of security and earnest money with interest on entire amount.
10. On behalf of the defendant, it was argued that the suit is pre mature as the plaintiff did not submit the bill alongwith measurement nor the labour clearance certificate and therefore, the defendant is not liable to pay any money to the plaintiff yet -4- the principal amount has been released to the plaintiff. Counsel for the defendant in support of his submission relied upon the judgement of Hon'ble Delhi High Court passed in North Delhi Municipal Corporation Vs. Sanjeev Kumar, RFA No. 430/2017 decided on 22.03.2018.
FINDINGS:
11. As far as the execution of the work order is concerned, the same is undisputed. DW1 in the cross examination, admitted that the entire work was completed by the plaintiff to the satisfaction of the defendant. He admitted that bill was passed on 26.08.2019. When the defendant has already passed the bill of the plaintiff and has also made the payment of principal amount, it cannot be argued for the defendant that the plaintiff is not entitled to the suit amount as he did not complied with the clause 4(b) of the work order or other terms and conditions of GCC.
12. The perusal of the judgment passed by Hon'ble Delhi High Court in North Delhi Municipal Corporation Vs. Sanjeev Kumar (supra) shows that it nowhere mandates that the plaintiff is required to submit the bills only on his letter head and only in his handwriting. The plaintiff proved on record the bill passed by the defendant as Ex. PW1/2. The bill bears the signatures of the plaintiff at the relevant space provided in the bill. It means that the plaintiff accepted the bill passed by the defendant and signed the same as token of acceptance. DW1 admitted in the cross examination that payment has been made. If that is so, then what was the requirement of the plaintiff to -5- submit the bill. Otherwise also, in the judgment relied upon, the Hon'ble High Court gave several directions to the defendant as well such as photography, videography, maintaining of record digitally etc. Even after considerable time of this judgment, the defendant has failed to comply with these directions. The defendant cannot claim the compliance of this judgment regarding submitting bills by contractor alone without complying with the directions given to the defendant. When the defendant itself failed to comply with directions given in this judgment, it cannot be argued that the plaintiff should diligently comply with the directions of this judgment. The facts that the plaintiff signed the bill and accepted the bill, give rise to the presumption that there was due compliance of the directions of Hon'ble High court given in this judgment. The plaintiff, therefore, is entitled to the bill amount.
13. Coming to the aspect of return of the security deposit, it was argued for the defendant that the plaintiff did not submit the labour clearance certificate as per clause 45 of the GCC and therefore, is not entitled to the refund of security amount. In this regard, cross examination of DW1 is relevant. DW1 admitted that payment of principal amount has been released to plaintiff. Work was completed way back in 2019. Nothing has been placed on record by defendant in regard to any labour complaint. When no labour complaint was pending against this work order then only defendant released the payment of bill. The defendant cannot withheld the security deposit only because there is no labour clearance certificate.
-6-14. Coming to the aspect of interest, the plaintiff has claimed interest @ 12% on the entire amount from 01.06.2020 i.e. after expiry of nine months from the date of passing of the bill. Counsel for the defendant argued that there was no term and condition regarding payment of interest and therefore, plaintiff is not entitled to any interest. The law in this regard has already been settled by Hon'ble Delhi High Court in the case of North Delhi Municipal Corporation Vs. Vipin Gupta in RFA No. 160/2017 and the SLP against this order was dismissed by Hon'ble Supreme Court. This judgment was further confirmed by the Hon'ble Division Bench of Hon'ble Delhi High Court in the case of North Delhi Municipal Corporation Vs. M/s. Barahi Construction passed by Hon'ble Delhi High Court in RFA (Commercial) 06/2021 dated 15.03.2021. In view of these judgments, the plaintiff is entitled to interest on the bill amount. The plaintiff, therefore, shall be entitled to interest @ 9% per annum on the principal bill amount of Rs. 7,56,335/- from 01.06.2020 till 27.06.2024 as payment was made on 28.06.2024 and interest @ 6% on the security deposit of Rs. 89,800/- from the date of the suit till realization. The plaintiff has, therefore, proved the issue in his favour as discussed above.
ISSUE NO. 3:
15. The onus of proving this issue was on the defendant.
It was argued for the defendant that the plaintiff failed to meet out the terms and conditions of the notice inviting tender as he did not submit the final bill. As already discussed, the bill Ex. PW1/2 bears the signatures of the plaintiff and was passed by the defendant after completion of all the formalities as admitted by -7- DW1. If the plaintiff did not fulfill the conditions of the tender as argued, then why the bill was passed and payment of principal amount was released remains unanswered. The defendant therefore has failed to prove the issue.
RELIEF:
16. In view of my finding given on the above said issues, plaintiff shall be entitled to a decree for a sum of Rs.89,800/-. Plaintiff shall also be entitled to interest @ 9% on the amount of Rs. 7,56,335/- from 01.06.2020 till 27.06.2024.
Plaintiff shall be entitled to interest @ 6% on the amount of Rs. 89,800/- from the date of the suit till realization.
17. Plaintiff shall also be entitled to the cost of the suit.
18. Copy of the judgment be sent to both the parties by electronic mode, if available or otherwise.
19. Decree sheet be prepared accordingly.
20. File be consigned to Record Room.
Digitally signed by AMITAMIT KUMAR KUMAR Date:
2024.10.08 14:38:41 +0530 (AMIT KUMAR) District Judge, Comm. Court-08 Central, Tis Hazari Courts Extension Block, Delhi/08.10.2024 -8-