Delhi District Court
Mrs. Harjeet Kaur vs The Commissioner on 14 March, 2014
Harjeet Kaur v. The Commissioner, MCD
IN THE COURT OF MS. SURYA MALIK GROVER
SCJCUMRC (SOUTH) SAKET COURTS COMPLEX
NEW DELHI
CS No. 74/11
UNIQUE CASE ID NO. 02406C0169182011
IN THE MATTER OF:
MRS. HARJEET KAUR
SOLE PROPRIETOR OF
M/S BAGGA BUILDERS
61/10, 2ND FLOOR,
RAMJAS ROAD, KAROL BAGH,
NEW DELHI05.
....PLAINTIFF
VERSUS
THE COMMISSIONER
MUNICIPAL CORPORATION OF DELHI
CIVIC CENTRE, MINTO ROAD,
NEW DELHI.
....DEFENDANT
DATE OF INSTITUTION : 08.07.2011
DATE OF RESERVING THE JUDGMENT : 06.03.2014
DATE OF DECISION : 14.03.2014
Page 1 of 13
Harjeet Kaur v. The Commissioner, MCD
JUDGMENT
1. This is a suit for recovery of Rs.1,34,465.44/ filed by the plaintiff against the defendant. The plaintiff has also claimed interest @ 24% per annum from the date of filing of the suit till payment with costs.
FACTUAL MATRIX OF THE CASE
2. The brief facts of the case are as under: 2.1 The plaintiff is a contractor executing the work of construction under the name of M/s Bagga Builders. It is averred by plaintiff that defendant invited a tender for improvement to damaged intersection by bitumen mastic at Tjunction Kailash Colony on Lala Lajpat Rai Marg in W. No. 12/SZ. In response to the said invitation, the plaintiff submitted the tender and the defendant awarded the aforesaid work to the plaintiff vide Work Order No. EEIV SZ/TC/200607/615 dated 08.03.2007 for the contractual amount of Rs.5,00,675/. The stipulated date of start of work was 17.03.2007 and the stipulated date of completion of work was 18.06.2007. Thereafter, the plaintiff after the award of the work mobilized the resources at site for execution of the Page 2 of 13 Harjeet Kaur v. The Commissioner, MCD work. The work as per stipulated date of completion was to be completed on 18.06.2007 but due to delay on the part of the department, the work was actually completed on 14.12.2007. 2.2 It is further averred that after the completion of the work, the department measured the same and prepared the 1st and final bill for a gross amount of Rs.4,513/. Out of this gross amount, the security of Rs.31,990/ was deducted and after making the other statutory deductions, the bill was passed for net payable amount of Rs.4,18,198/ on 28.03.2008. It is further averred that the same has been received by the plaintiff on 31.3.2008. The plaintiff submits that the defendant has illegally withheld payments in the final bill. The first such amount is Rs.25,000/ on account of test certificate for passed samples. These were however gotten checked from Shriram Institute and the payment of Rs.4,607/ was made by the plaintiff. It is further averred that another sum of Rs.8,000/ is lying with the defendant on account of earnest money. Thus, in all a total sum of Rs.69,597/ is due and payable to the plaintiff.
2.3 It is alleged that defendant assured the plaintiff that payment would be released shortly. The defendant did not clear the aforesaid Page 3 of 13 Harjeet Kaur v. The Commissioner, MCD payments of final bill and the security deposit, despite the plaintiff visiting the defendant department repeatedly. It is averred that the plaintiff had executed the work awarded by the defendant to the satisfaction of all concerned. It is contended that no defect of any sort in the work executed by the plaintiff was ever pointed out by the defendant. Thus, there has never been any justification for not making payment of the aforesaid amount.
2.4 It is contended that being left with no option, the plaintiff issued a legal notice dated 06.05.2011 calling upon the defendant to make the aforesaid payment to the plaintiff along with an interest of 24% per annum on the passed 1st and final bill for depriving the plaintiff of the use and investment of the said amount within a period of two months and also an amount of Rs.5,500/ as notice charges were to be paid by the defendant. Thus, the total amount due and payable by the defendant is Rs.1,34,465.44/.
3. The defendant/MCD filed the written statement on 02.05.2012. Preliminary objections have been taken by defendant that the work was completed by the plaintiff on 10.01.2008. It is further submitted that the completion of work was got delayed by the plaintiff for a Page 4 of 13 Harjeet Kaur v. The Commissioner, MCD period of 6 months and 24 days. It is stated that an amount of Rs.25,000/ was withheld on account of nonexistence of extension of time which was to be approved by the competent authority. Further, after reconstruction of tender/accounts file, extension of time was granted by the competent authority upto 10.01.2008 with three percent levy of compensation on tender amount and accordingly final bill has been passed on 24.04.2012 for an amount of Rs.12,608/. 3.1 On merits, the claim of the plaintiff has been denied. It is submitted that it was the responsibility of the plaintiff to take extension of time which was not so applied for. All the remaining averments have been denied as false and incorrect.
4. Replication has been filed reiterating and reaffirming the averments made in the plaint. In reply to the preliminary objections, it is stated that the plaintiff was always ready and willing to execute the work but the same could not be started owing to the nonavailability of site and the delay ensuing from the same is attributed to the defendant itself. Further, the levy of three percent has been challenged as wrong and illegal. It is further submitted that the defendant had at no point of time issued any letter or show cause letter to the plaintiff about any Page 5 of 13 Harjeet Kaur v. The Commissioner, MCD delay as is being alleged now and the defendant is put to strict proof of the same.
5. It is pertinent that after filing of the suit, the defendant stated that the work file had been misplaced and same was reconstructed and a final bill was passed by the defendant on 24.04.2012 for a sum of Rs. 52,598/.
ISSUES
6. On the basis of the material on record, following issues were framed by Ld. Predecessor on 21.08.2012 :
1. Whether plaintiff is entitled to recover a sum of Rs.
1,34,465.44 from the defendant as prayed for in the suit? OPP.
2. Whether the plaintiff is entitled for interest, if so, at what rate and for which period? OPP.
3. Relief.
EVIDENCE ON RECORD
7. The plaintiff in support of her case examined witness Sh. Pappu Seth as PW1, who filed his affidavit in evidence which is Ex.P1. PW1 has relied on documents i.e. attested copy of Special Page 6 of 13 Harjeet Kaur v. The Commissioner, MCD Power of Attorney dated 10.10.2012 in favour of Sh. Pappu Seth as Ex.PW1/A; copy of work order dated 08.03.2007 as Ex.PW1/B; test report receipt dated 16.01.2008 as Ex.PW1/C and copy of legal notice dated 06.05.2011 along with AD Card and postal receipt as Ex.PW1/D (colly.).
7.1 In the crossexamination, PW1 has admitted that the site was to be handed over to him in March, 2007 and the work was to be completed in the month of December, 2007. He has admitted that no letter was written by him in respect of the delay being caused due to the reasons attributed to the defendant. He has admitted that he did not apply for extension of time for completion of work as the department had given him provisional extension of time on its own. He has admitted that the department can levy the compensation for delay in execution of work but has added that the same can be done only after issuance of notice. He has admitted that there was no communication in respect of demand for outstanding amount before legal notice dated 06.05.2011.
7.2 No other witnesses were examined. Thereafter plaintiff's Page 7 of 13 Harjeet Kaur v. The Commissioner, MCD evidence was closed on 21.12.2012.
8. The defendant in support of its case examined Sh. S.C. Yadav, Executive Engineer, SDMC as DW1, who filed his affidavit in evidence which is Ex.DW1/1.
8.1 In his crossexamination, DW1 has admitted that the site was handed over to the plaintiff on 08.01.2008 i.e after six months of the order. He has denied that at the time of handing over the site, there was no shuttering work going on of the Delhi Metro Rail Corporation. He has admitted that a s show cause notice should be issued in terms of clause 3 (4) of the General Conditions of Contract in cases where the work goes beyond stipulated date of completion. He has further admitted that as per clause 5 (4) of General Conditions of Contract, in case extension of time is not sought, same shall not be a bar for giving a fair and reasonable extension of time by the Engineer Incharge.
9. I have heard the arguments by counsel for the plaintiff and gone through the record carefully.
DECISION AND LEGAL REASONING
10. During final arguments, it was pointed out by Ld. Counsel for Page 8 of 13 Harjeet Kaur v. The Commissioner, MCD the defendant that before going into the issues, it is quintessential to adjudicate if the suit has been filed within the period of limitation as prescribed in the Indian Limitation Act. On the other hand, Ld. Counsel for the plaintiff has argued that as the said plea was not taken at the time of filing written statement, it is not tenable at this stage. Even otherwise, as a legal notice had been issued to the defendant within the prescribed period, and hence the period of limitation was extended from the date of issue of legal notice.
11. The short question before the Court was if plea of limitation can be raised at any stage or the same must be raised at the very first stage during the trial?
12. In judgment titled Jagab v. Natho, AIR 1960 Punj 2007, it has been held that the question of limitation may be raised at any time in the course of the proceedings. On the same lines, in Maqbul Ahmad v. Pratap Narain Singh, (1935) ILR 57 and Manindra Canal Land and Corporation Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336, it has been held that Section 3 is peremptory and the duty of the Court is to notice the Act and give effect to it even though limitation is not Page 9 of 13 Harjeet Kaur v. The Commissioner, MCD referred to in the pleadings.
Again, in Narne Rama Murthy v. Ravula Somasundaram, (2005) 6 SCC 614, it has been held that in cases where the question of limitation of law and from pleadings itself it is apparent that the suit is barred by time, it is the duty of Court to decide limitation at the outset even in the absence of such a plea in defence. But when the question of limitation is a mixed question of law and fact, and the suit does not appear to be barred on the face of it, limitation should be specifically pleaded, an issue raised and then proved.
In Sudama Rai v. Bisheshir Prasad, AIR 1935 All 92 and M.S. Chettiyar Firm v. S.E. Bholat, (1934) ILR 13 Rang 43, it has been held that the Court is bound to take notice of the point of limitation if it appears to it that the suit is barred by time, even if the defence did not take up the plea or the plea was abandoned.
In V.M. Salgaocar v. Board of Trustees of Port of Mormugao, (2005) 4 SCC 613, it has been held that even if the defendant "intentionally" does not raise the plea of limitation, if the suit is ex facie barred by time, Court has no choice but to dismiss the same. Page 10 of 13 Harjeet Kaur v. The Commissioner, MCD In Shri Amarnath Satya v. Shri Amar Nath Satya, (1994) 55 DLT 683, it has been held that the principle that the Court shall dismiss the suit, even if the defendant did not raise the raise of limitation, will apply only in cases where limitation is attracted on admitted facts or facts beyond controversy. The rule is not attracted when the plea of limitation is founded on such facts as are disputed without adjudication whereof the Court cannot determine whether the bar of limitation was attracted or not. In such a case, the party relying on the bar of limitation has to allege the facts, on proof whereof, the Court shall apply the bar of limitation.
13. Hence, in view of the submissions looked at in the light of the case law on the subject, I have no hesitation in holding that even if the plea of limitation has not been taken by the defendant at any point of time, the same shall not create a hurdle for the Court in looking into the question of limitation. Rather, it is the bounden duty of the Court to ensure that the suit has been filed within the period of limitation for the simple reason that there is no estoppel against statute.
14. In the present facts and circumstances, the written contract was awarded to the plaintiff on 08.03.2007 and stipulated time of Page 11 of 13 Harjeet Kaur v. The Commissioner, MCD completion of the work was three months. Thereafter, the first and final bill was prepared by the department for an amount of Rs.4,75,513/. Further, a sum of Rs.4,18,198/ was paid to the plaintiff on 31.03.2008. It is noteworthy that from 31.03.2008 till sending of legal notice dated 06.05.2011, there was not a single communication for a period of three years and two months by the plaintiff for recovery of the contractual amount.
15. From the above, it is evident that the suit of the plaintiff is ex facie time barred as the suit has not been filed within three years of the accrual of cause of action. Moreover, neither in para 10 which mentions the accrual of cause of action nor anywhere else in the plaint, there is an averment that period of limitation was extended on account of any acknowledgment on the part of the defendant of the remaining payment. The extension of period of limitation has been alleged on the basis of sending of legal notice. To my mind, the plea raised is not tenable as the legal notice was sent after two months of lapse of prescribed period of limitation. Even otherwise, it is settled law that merely sending a legal notice does not amount to accrual of cause of action nor does it amount to acknowledgment of liability. Page 12 of 13 Harjeet Kaur v. The Commissioner, MCD
16. In view of the foregoing discussion, I am of the considered opinion that the suit filed by the petitioner is highly time barred and therefore, not maintainable in view of the provisions of Indian Limitation Act. In view of the aforesaid, there is no requirement to deal with the issues framed. Accordingly, the suit is dismissed.
17. No order as to costs.
18. Decree sheet be prepared accordingly.
19. File be consigned to record room.
Announced in the open Court (Surya Malik Grover) on 14.03.2014 SCJcumRC (South), Saket Courts, New Delhi Page 13 of 13