Delhi District Court
Cs No. 28/17/02 (New No.9206/16) Satya ... vs . Dda & Anr. 1/35 on 9 November, 2017
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
CS No. 28/17/02
New No. Civ. DJ-9206/16
Shri Satya Parkash Gupta
Sole Proprietor of
M/s. Satya Parkash & Bros.,
R/o A-1, C.C. Colony,
Opp. Rana Pratap Bagh,
Delhi-110007.
......Plaintif
versus
1. Delhi Development Authority
Service to be efected through
The Vice Chairman,
DDA, Vikas Sadan, INA,
New Delhi.
2. The Executive Engineer,
WD-5,
Delhi Development Authority,
Vikas Minar, I.P. Estate,
New Delhi .........Defendants
Date of institution of the case : 21.03.2002
Date of reserving of judgment : 16.10.2017
Date of pronouncement of judgment : 09.11.2017
JUDGMENT
1. The plaintif has filed a suit for recovery of Rs.43,99,464.93. The brief facts necessary for the disposal of the suit are as under:
2. The plaintif is working as Government Contractor and Engineer under the name and style of M/s. Satya Parkash & Bros. as its sole proprietor. The defendants invited tenders for the work of maintenance of completed scheme under CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 1/35 South West Zone under the sub-head of Repair of Roads at Janakpuri, Paschim Vihar, Vikas Puri and Hastsal. In response to the said invitation to tender, the claimant submitted the tender and the same was accepted being the lowest one and further negotiations took place between the plaintif and defendants. After negotiations, the defendant no.2 vide its letter no. F5 (23) WD-5/A/DDA/98-99/2056 dated 13.11.1998 awarded the work of maintenance of competed scheme under South West Zone under the Sub-head of Repair of Roads at Janakpuri, Paschim Vihar, Vikas Puri and Hastsal to the plaintif. The contractual consideration of work was Rs.59,07,000/-. As per the requirements the plaintif entered into agreement dated 13.11.1998.
3. It is stated that the stipulated date of start of above said work was to be 14.11.1998 and the date of completion was to be 13.12.1998 as per the work order/agreement. The plaintif had already arranged and kept ready all the equipments, staf, labour and machines for starting the work. The work was to be carried out by the plaintif in the areas covered under three diferent divisions viz WD-2, WD-5 and WD-7. As per the terms of contract entered into between the parties, the bitumen was to be supplied by the department but the same was not supplied in time. Some delay had been caused in completion of the work due to irregular supply of bitumen as well as non availability of the site by the department despite various letters by the plaintif. Since the delay was caused due to fault on the part of the department, the extension of the time was granted by the department to the plaintif and the work for all the divisions was actually completed by the plaintif on CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 2/35 28.07.1999. The entire work was executed under the instructions, supervision and to the satisfaction of the department.
4. It is stated that the measurements of the said work were periodically recorded and entered in the measurement book (MB) by the department. During the process of the work, two running bills amounting to Rs.12,86,892.13 were entered in MB, passed and payments were made to the plaintif. The plaintif completed the full work as per the tender under supervision and to the satisfaction of the defendants and also raised two bills vide letter dated 30.05.2000 for a sum of Rs.39,76,922.30 and Rs.19,62,073.35 total amounting to Rs.59,38,995.65 for the work carried out under diferent divisions. The defendants have failed either to finalize the said bills or to make any payment thereof. The bills for the work amounting to Rs.39,76,922.30 were entered in measurement book (MB) by the defendants and prepared but neither the same were finalized nor payment was made to the plaintif. Apart from the above, bill for the work amounting to Rs.19,62,073.35 has not been entered in the measurement book by the defendants intentionally and malafidely.
5. It is stated that on the above payments certain deductions were to be made by defendants regarding security, income tax and rebate for allowing the plaintif to use its own Road Rollers. After the deductions, amount payable by the defendants to the plaintif comes to Rs.25,03,947.83 as detailed in the plaint. The said bill of Rs.25,03,047.82 should have been passed and payment CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 3/35 should have been made to the plaintif immediately after the competition of the work but due to inaction and on performance of its statutory duties, the defendants have failed to do either of it which is ultra virus and illegal. The plaintif kept on visiting and made various representations and letters including letters dated 24.07.2000, 31.08.2000, 05.10.2000 and 07.02.2001 to the defendants but in vain. The said letters have been duly received by the defendants but neither any reply has been sent nor the bill has been finalized nor any payment has been made to the plaintif till date. The plaintif is also entitled to the security amount of Rs.5,00,000/- from the defendants which has been wrongly withheld by them.
6. It is stated that the plaintif issued a legal notice dated 15.09.2001 to the defendants by speed post and was duly received by the defendants on 19.09.2001. The defendants sent a reply dated 19.10.2001 and called the plaintif for a meeting along with other higher officials of defendant on 23.10.2001. The plaintif attended the meeting on 23.10.2001 and the defendants admitted the claim of the plaintif, assured him that his bill has been finalized and the payment would be released soon but not payment has been made till date. The defendants are liable to pay a sum of Rs.30,03,047.82 towards the outstanding principal amount to plaintif. Due to the inordinate delay in payment the plaintif is also entitled to interest @ 18% per annum on the above said amount till realization of the same. The interest on the above amount w.e.f. 28.07.1999 to 28.02.2002 come to Rs.13,96,417.11. As such the defendants are liable to pay to the plaintif a total sum of Rs.43,99,464.93.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 4/35
7. The defendants filed written statement and denied the averments made in the plaint as wrong and incorrect. It is stated that as per the Agreement entered between the parties, the bitumen was to be supplied by defendant no.1 Authority and the same was supplied as per the requirement of the plaintif as indicated to the defendant no.1 from time to time. It is stated that the gross work executed by the plaintif was for a total amount of Rs.46,09,410/- against the tendered amount of Rs.59,07,000/-. The work was completed by the plaintif on the various sites given to him for execution. The said amount of Rs.46,09,410/- was the amount for which the actual work was executed by the plaintif. However, the plaintif mischievously raised fictitious bills on totally false and frivolous pretext, basis and calculations. The plaintif failed to mention the details of measurements for which the bills were claimed by him. The defendants duly recorded the measurements at the site and the said amount of Rs.46,09,410/- was the amount found due on the basis of the said actual work done by the plaintif at the sites. The bills submitted by the plaintif for a sum of Rs.39,76,922.30 and Rs.19,62,073.35 were raised on fictitious ground and not based on the actual work done by the plaintif. The plaintif is not entitled to the amounts claimed in the said bills.
8. It is stated that the plaintif had been time and again informed about the recording of complete measurements by the defendants for the gross work executed by him and had further being informed to submit his measurements, in the event of any doubt about the recording of the measurements by the defendants. No measurements CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 5/35 were submitted by the plaintif at any point of time nor any doubts regarding the measurements recorded by the defendants were expressed by the plaintif at any point of time. The calculations made by the plaintif are totally false and incorrect. The details of the final bill prepared by the defendants in accordance with the actual work executed by the plaintif are mentioned in the written statement. According to which the plaintif is entitled to the payment of only a sum of Rs.90,813.98 from the defendant no.1.
9. It is stated that the bill amounting to Rs.46,09,410/- was payable to the plaintif in the 3rd R.A. Bill/ Final Bill but the plaintif started raising extra bills on false pretext for the works not executed by him. The plaintif even failed to submit the details of the measurements for the diference, despite being called upon to do the same. The amount claimed in the bill raised by the plaintif are fictitious and are not payable. It is stated that the security deposit is collected from the R/A/c bills of the contractor (plaintif) at the rate of 10% of the estimated cost put to tender as per clause 1 of the agreement. The said amount is to be refunded after the finalization of the Bill. Since the plaintif has refused to accept the final bill prepared by the defendants and as such the security deposit has not been released to him. Since the plaintif did not submit the certificate for acceptance of the measurements and refused to accept the amount calculated by the defendants, the bill could not be paid to him.
10. It is stated that the defendants wanted to resolve the matter and in the meeting held between the parties the CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 6/35 defendants submitted the proof for the payments due under the contract as per the work executed by the plaintif. The action of the plaintif has been totally unjustified and totally false and frivolous claims are being raised without any basis thereof. The suit filed by the plaintif is an abuse of process of the court and is liable to be dismissed.
11. The plaintif filed replication to the written statement of the defendants, in which averments made by defendants are denied and averments made in the plaint are reiterated.
12. On the pleadings of the parties, the following issues were framed by Hon'ble High Court on 21.11.2011:
1. Whether the bills submitted by the plaintiff were not based on the actual work done by the plaintiff, if so its effect? OPD
2. Whether the plaintiff is entitled to the suit amount? OPP
3. Whether the plaintiff is entitled to any interest, if so at what rate and for which period? OPP
4. Relief.
13. To prove his case, plaintif Sh. Satya Prakash Gupta got himself examined as PW1. Thereafter, as per statement of Ld. Counsel for the plaintif, the plaintif evidence was closed on 14.01.2015.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 7/35
14. Defendants got examined Sh. Chander Mani, Executive Engineer as DW1 and thereafter as per statement of Ld. Counsel for the plaintif, defendant evidence was closed on 10.03.2017.
15. PW1 Sh. Satya Prakash Gupta-plaintif tendered his affidavit in evidence as Ex. PW1/A, in which he reiterated the averments made in the plaint and got proved on record copy of letter dated 16.01.1999 as Ex. PW1/1; copy of the letter dated 18.01.1999 and its reply dated 21.01.1999 as Ex. PW1/2 and Ex. PW1/3 respectively; letter dated 04.03.1999 as Ex. P9; copy of letter dated 21.04.1999 along with postal receipt and AD Card as Ex. PW1/4 to Ex. PW1/6 respectively; copy of letter dated 18.05.1999 along with postal receipt and AD card as Ex. PW1/7 to Ex. PW1/9 respectively; copy of letter dated 03.06.1999 demanding interest on pending payment along with postal receipt and AD card as Ex. PW1/10 to Ex. PW1/12 respectively; copy of letter dated 30.05.2000 along with its courier receipt as Ex. PW1/13 and Ex. PW1/14 respectively; copy of letter dated 24.07.2000 along with its courier receipt as Ex. PW1/15 and Ex. PW1/16 respectively; letter dated 31.08.2000 along with its courier receipt as Ex. P5 and Ex. PW1/17; copy of letters dated 05.10.2000 along with its courier receipt as Ex. PW1/18 and Ex. PW1/19; copy of letter dated 07.02.2001 along with its postal receipt and AD Card as Ex. P4, Ex. Pw1/20 and Ex. PW1/21 respectively; copy of the legal notice dated 15.09.2001 along with its original postal receipt and AD card as Ex. P1, Ex. PW1/22 and Ex. PW1/23; original letter dated 19.10.2001 by respondent as Ex. P2; copy of letter dated 16.01.1999 as Ex. PW1/1; copy of letter dated 04.03.1999 as Ex. P9; copy of the letters dated CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 8/35 10.03.1999 and 11.03.1999 as Ex. P8 and Ex. P7 respectively; copy of letter dated 22.07.1999 as Ex. P6. Ex. P1 to P12 were admitted by the defendant at the time of admission/denial of documents. Ex. PW1/11 and Ex. PW1/21 were de-exhibited being photocopies and were marked as Mark -A and Mark B respectively.
16. PW1 Sh. Satya Prakash Gupta in his cross-
examination deposed that he understand English and can read little English. He did not remember if he had visited the Oath Commissioner or Notary Public. He admitted that the affidavit of evidence has been filed in May, 2012. He admitted that it is not mentioned in the affidavit that the contents of the affidavit were explained to him in vernacular language. He volunteered that his Counsel had explained the contents to him.
17. PW1 in his cross-examination further admitted that the site was handed over to him in time. He denied the suggestion that the necessary equipments were not ready with him to start the work at the site. He denied that the required quantity of bitumen was released to the plaintif to start the work. He denied that the defendant had given the indent for the required quantity of bitumen to start the work to the plaintif. He volunteered that indent for complete quantity was not given. He denied the suggestion that as per the agreement, the running bills were to be submitted by the plaintif. He volunteered that the department had to carry out the inspection regarding measurements and prepare the bill.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 9/35
18. PW1 in his cross-examination further deposed that he did not remember the name of the civil engineer who was appointed by him as per Clause 36 (1) of the Agreement. Initial level of the road was recorded in the presence of engineers of both the sides duly signed by him. The final level of the road was not recorded. He did not receive any completion certificate from the department. He did not recall the quantity of bitumen issued by the department. He did not have any record of the bitumen issued as the record is maintained only by the department. He denied the suggestion that as per Ex. PW1/D1, 200.616 MT of bitumen was issued by the department. He cannot say if the person authorized by him has signed page 99 of Ex. PW1/D2. He did not remember if the defendant had retained any amount of the plaintif as per Clause 15 of the agreement.
19. PW1 in his cross-examination further deposed that the first running bill was passed for an amount of Rs.12,41,629/- and the second running bill was passed for an amount of Rs.25,09,688/- which also included the first running bill. He admitted that the security deposit was to be paid in accordance with Clause 17 of the agreement. To a specific question that the unused quantity of bitumen which was to be returned to the department, was to be charged at a penal rate which is double the amount of the normal rate, from him as per the agreement, he replied that there was no unused bitumen and there was not any question of returning the unused bitumen as per the agreement.
20. PW1 in his cross-examination further deposed that he cannot say in which Division of DDA he has worked in CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 10/35 the present contract as the matter is 15 years old. He admitted that the work pertained to three divisions. He cannot tell orally what is the amount of work done by him in each division. He volunteered that Measurements Books are already on record. All the work done by him is mentioned in the Measurements Books. All the work done by him is mentioned in the Measurements Books. All the work done by him was got recorded by the concerned JE/AE in the Measurement Book. He further deposed that he had written letters to the defendant regarding the hindrances caused at the site and not in the site order book. The site order book is not present at the site and it remains with the official of the defendant. No final bill was given to him by the defendant. He denied the suggestion that he received the payment for the work done by him. He denied that the suit filed by him is false and frivolous or that he is not entitled to any payment.
21. DW1 Sh. Chander Mani Garg, Executive Engineer, W.D.-5, DDA tendered his affidavit in evidence as Ex. DW1/A, in which he deposed about the case of the defendant in its written statement. He got proved on record original agreement dated 13.11.1998 as Ex. DW1/1; original measurement book no. 008582 as Ex. DW1/2; the original measurement book no. 008587 as Ex. DW1/3; original measurement book no. 00785 as Ex. DW1/4; original measurement book no. 1045A as Ex. DW1/5; original measurement book no. 1054A as Ex. DW1/6; original measurement book no. 00787 as Ex. DW1/7 and original final bill as Ex. DW-1/10.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 11/35
22. DW1 Sh. Chander Mani in his cross-examination admitted that when the project was executed he was not posted in any of the three Divisions. He has no personal knowledge of the present case. He volunteered that he has derived the knowledge from the record. He admitted that all the measurement books which are mentioned in his affidavit are not prepared under his instructions. There are three Division Stafs in preparation of all measurement books and today he cannot tell their names. He admitted that the final Bill Ex. DW1/1 was not prepared on his instructions and he derived the knowledge from the record. He has prepared the chart mentioned in his affidavit at para no. 11 has been prepared after going through the measurement books. He admitted that in the written statement at para no. 8 at page 4, the dues against plaintif is shown to the tune of Rs.90,000/- and in his affidavit in para no. 11 the dues are shown at the tune of Rs.65,813/-.
23. DW1 denied the suggestion that final Bill Ex. DW1/10 was prepared after filing of written statement. He denied that after running second bill plaintif was paid only Rs.12,86,892.13. He volunteered that this amount of 12,86,892.13 is cheque amount which was given to the plaintif but in record the gross-amount is mentioned as Rs. 25,09,09,688/- including the first running bill amount as well. He denied the suggestion that this system of inclusion of first and second running bill is wrong and amount paid to the plaintif was to be deducted from the final bill. He admitted that there is a due of Rs. 5 lacs towards plaintif with regard to the security. He volunteered that the security amount is payable only after maintenance period is over or final bill of CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 12/35 the work has been paid by the plaintif. The maintenance period of present project was over in the month of July 2000. As per record final bill was prepared on 07.09.2002 as per MB No. 1045A.
24. DW1 admitted that on final bill Ex. DW-1/10 no date has been mentioned. He denied the suggestion that after filing of the present suit, final bill Ex. DW-1/1 was prepared arbitrarily, wrongly with incorrect figure. It is mentioned in the CPWD Works Manual that security amount would be due after final bill is prepared and paid. He denied the suggestion that in CPWD Works Manual it is mentioned that the security would be released only after the maintenance period is over. He volunteered that Security amount is paid after the maintenance period is over or final bill is paid which ever is later. The amount of recovery of Bitumen is shown in the final bill because Bitumen was provided by DDA. He denied the suggestion that the total Bitumen quantity supplied to the plaintif was consumed during the execution of the project. No notice or letter filed on record whereby DDA demanded unused Bitumen from the plaintif. He volunteered that it is shown in MAS Register. Original MAS register is filed on record and has already been exhibited as Ex. PW-1/D2. He admitted that in Ex. PW-1/D2 there is nothing mention about the taking away the Bitumen by the plaintif. He volunteered that there are three separate MAS Register of all three Divisions. As per Ex. PW-1/D2, 81 Bitumen drums were retained by plaintif. He denied the suggestion that plaintif had returned the said 81 Bitumen drums as per Ex. PW-1/D2.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 13/35
25. DW1 denied the suggestion that the department had not issued any letter to the plaintif because there was nothing remained/retained by the plaintif. He admitted that in the agreement between the plaintif and defendant there is no condition prescribed to impose panel recovery upon the plaintif on account of bitumen. He volunteered that DDA followed the CPWD Works Manual and agreement provides that surplus material shall be return by the plaintif as per Clause 42 of the agreement. He denied that the CPWD Works Manual do not prescribe any panel recovery. He denied that recovery on account of bitumen, penal recovery of bitumen are wrongly carried out without any conditions and without any basis. The recovery of about Rs. 48,000/- and QC paras was not a recovery and was retained by the department for the future. The QCs paras retain amount has not been settled till today. In the present case even the extension of time has not been settled till date.
26. DW1 denied that the recovery made on account of QCs paras and on account of amount with held for extension of time has already been settled and become due to be paid to the plaintif. He denied that the final bill Ex. DW-1/10 is based on flimsy measurements and totally incorrect. He did not know whether the plaintif had submitted its final bill in May, 2000. He did not know whether plaintif had submitted bill alongwith all the measurements taken by him from its measurement book. He did not know whether the measurement contained in the final bill was measured jointly by the then officials and plaintif or not. He did not know whether any notice was given to the plaintif for joining the measurements of the work.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 14/35
27. DW1 volunteered that as per agreement, contractor was bound to submit his measurement and two running bills were paid to the plaintif which were accepted. He denied that plaintif had submitted its final bill alongwith measurements and this fact is in his knowledge. He denied that the measurements of the plaintif were never disputed by the concerned officials. He admitted that Ex. P1 was served by the plaintif before filing of the suit but he did not know whether any reply of the same was given or not. He again said that the reply to the legal notice Ex. P1 might have been given by the department. He denied that no reply was ever sent or served upon the plaintif by the defendant. He denied that the plaintif is entitled to the suit amount and has carried out the work to the tune of Rs. 59,38,995.65P. He denied that the due amount to the plaintif was intentionally not paid alongwith security deposit. He denied that the withheld amount has also been wrongly withheld till date and is liable to be released to the plaintif.
28. I have heard Sh. A.K.Gupta, Counsel for the plaintif and Sh. Anupam Sharma, Counsel for the defendant/DDA and perused the record.
29. Sh. Anupam Sharma, Ld. Counsel for the defendant/DDA stated that admittedly the repair work of roads at Janakpuri, Paschim Vihar, Vikas Puri and Hastsal, New Delhi was awarded to the plaintif firm vide award letter dated 13.11.1998 Ex. DW1/1, which contained the detailed terms and conditions related to all the aspects relating to execution of the work. The stipulated date of start and completion of the work were 14.11.1998 and 13.12.1998 respectively. It is further stated that admittedly the tender cost of the work was Rs.59,07,000/- and if the plaintif fails to CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 15/35 prove that he had executed and completed the entire work in accordance with the terms and conditions of the Award letter and agreement than the suit stands fail except for the amount found due in Final Bill prepared by the department.
30. Ld. Counsel for the defendant/DDA further stated that the issue no. 1 has not been correctly framed as it is the plaintif who has approached the Court with a claim of recovery. Therefore, no decree of any amount can be granted in his favour until and unless the plaintif duly proves the claims raised by it. Accordingly, the onus to prove the claims squarely rests upon the plaintif and the defendant is not required to prove the claims of the plaintif. He referred to Section 101-103 of the Evidence Act.
31. He further stated that issue nos. 2 and 3 cannot be contradictory to the issue no.1 as all the issues have emerged from same controversy and are out of same aspect i.e. whether the alleged Final Bill filed by the plaintif is correct or not. It is the plaintif who is required to prove that it had actually done the work as mentioned by it in the alleged Final Bill submitted by it. Ld. Counsel requested to correct and reframe issue no.1 in positive and onus of proving the same be placed upon the plaintif.
32. He further stated that both the parties have produced one witness each. In this respect it is important that the plaintif being an interested witness, his statement alone without being corroborated/supported by other independent evidence cannot be considered as it is not more than self serving statement.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 16/35
33. Ld. Counsel for the defendant/DDA further referred to various clauses of the Agreement. He stated that as per Clause 6 of the Agreement, within 10 days of the actual physical completion of the work, plaintif was required to issue a notice in writing to the Engineer-in-Charge, intimating him the completion of the work, so that the Engineer-in-Charge could inspect the site and work and if no defect is found, the Completion Certificate was to be issued. However, it is an admitted fact that no such notice had been served upon the Engineer-in-Charge by the plaintif which proves that the work was never complete. Further, as per Clause 7 of the Agreement the final bill was to be submitted by the plaintif within one month of the stipulated date of completion or of the Completion Certificate issued under Clause 6. It was the plaintif who was solely responsible to prepare and submit all the Bills, be it Running Account or the Final Bill.
34. He further stated that it is an admitted fact that to prepare a Bill, measurements were required to be taken at the site and responsibility of taking the measurements was also of the plaintif in the presence of the defendant who was to certify the same. Accordingly, the claims for recovery brought up by the plaintif have to be tested on the touchstone of the terms and conditions of the Agreement and upon the evidence produced by the parties.
35. Ld. Counsel for the defendant further stated that to prove the onus of issues, defendant got examined as DW1 Sh.Chander Mani, Executive Engineer, who deposed that plaintif had neither measured the work done nor submitted CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 17/35 any measurements. He further proved the M.Bs. Nos. 008582 as Ex. DW1/2, 008587 as Ex. DW1/3, 00785 as ex. DW1/4, 01045A as Ex. DW1/5, 01054A as Ex. DW1/6 & 00787 as Ex. DW1/7. Since the original M.B. No. 1376 was not traceable, therefore, the photocopy thereof was marked as Mark-A. However since its entries have also been recorded and to in M.B. No. 1045A as Ex. DW1/5, the has to be duly read in evidence vis-a-vis the entires contained in Mark -A. DW1 has clearly stated that no work had been cone by the plaintif except for the work as has been recorded in the aforesaid Measurement Books.
36. Ld. Counsel further stated that the DW1 has further deposed that based upon the measurements recorded in the aforesaid M.B.s, the third cum Final Bill for a sum of Rs.46,09,410/- was prepared by the defendant. The Final Bill was prepared on the basis of the work done by the plaintif at the site, therefore, he is not entitled to any amount more than what has been stated in the Final Bill. The third cum Final bill has been duly proved as Ex. DW1/10.
37. It is stated that the first R.A. Bill prepared on the basis of M.B. No. 787 (Ex. DW1/7) and M.B. No. 785 (Ex. DW1/4) for a total sum of Rs.12,41,629/- and after deductions, the amount paid to th plaintif was Rs.5,47,652.41. The plaintif did not take any objection to the measurements or to the amount of the payment made against the same. Thereafter, the second R.A. Bill on the basis of M.B. No. 8582 (Ex. DW1/2) and M.B. No. 8587 (Ex. DW1/3) for a total sum of Rs.25,09,688/- was prepared on 26.03.1999. This Bill also included the gross amount of First CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 18/35 R.A. Bill i.e. Rs. 12,41,629/-. the net amount paid after recoveries of Rs.11,82,310/- against the second R.A. Bill was Rs.7,79,600/-. This bill had duly been accepted by the PW1 in the aforesaid M.B. Ex. DW1/6 without taking any objection thereto.
38. He further stated that the record entry of the Final Bill has been made in M.B. No. 1376, Mark A and abstract of the Final Bill has duly been noted and prepared in M.B. No. 1045A which has been duly proved as Ex. DW1/5. The contents of both the M.B.s stand duly proved along with the amount of the Final Bill based thereupon.
39. Ld. Counsel for the defendant further stated that after the second R.A. Bill, the work done by the plaintif was only for a sum of Rs.20,99,322/- and accordingly, the third cum Final Bill was prepared for a Gross Sum of Rs.46,09,410/- which included the Gross sum of Rs.25,09,688/- already paid to the plaintif in the First and Second R.A. Bills. It is stated that out of the aforesaid sum of Rs.20,99,722/-, the recoveries under various heads had to be made which have duly been stated in para 11 of the affidavit of evidence of the DW1 and after deductions towards the said recoveries the net amount payable to the plaintif comes to Rs.65,813.81. However, the plaintif has refused to accept the same for his malafide reasons.
40. Ld. Counsel for the defendant further stated that during the cross-examination, suggestions had been given to the DW1 to the efect that the plaintif had submitted the measurements along with its alleged Final Bill and that the CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 19/35 Final Bill prepared by the defendant is based on flimsy grounds but he was not confronted with any such measurements having allegedly been submitted by the plaintif. It is stated that no question or even suggestion had been given to the DW1 that the measurements recorded in the aforesaid M.Bs. are incorrect or were not as per the actual work done by the plaintif. Thus the said measurements stands admitted and the plaintif is left with no case.
41. Ld. Counsel for the defendant stated that the plaintif has not challenged any of the Measurement Books duly proved on record by DW1. On the other hand, in his cross-examination held on 14.01.2015, PW1 had stated that "I cannot tell orally what is the amount of the work done by me in each division. (Vol.) Measurements Books are already on record. All the work done by me is mentioned in the Measurements Books. All the work done by me was got recorded by the concerned JE/AE in the Measurement Books." It is clear and direct admission of the case put forward by the defendant, the suit is left with no basis at all. In para 6 of the plaint, the plaintif has stated that 'measurements of the said work were periodically recorded and entered in the measurement book (MB) by the department'.
42. Ld. Counsel for the defendant further stated that PW1 in his cross-examination held on 09.07.2013 admitted that he knows only little English and in the cross-examination held on 25.09.2013 he could not tell the name of the engineer appointed by him as per Clause 36 of the Agreement. This has to be read with the fact that no letter intimating the name or antecedents or such an engineer CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 20/35 appointed by him had been proved or even been filed on record. Thus, it stands admitted and proved that the plaintif had not appointed any engineer or a technical person as required by Clause 36 of the Agreement. The Bills be it Running Account or Final have to be prepared in the format provided by the department which could be done through a technical person and not by any layman.
43. Ld. Counsel for the defendant further stated that in order to support a Bill, measurements for the work against which it was claimed was also required to be recorded and submitted along with the Bill. However, the plaintif had not having submitted the alleged measurements of the alleged work done by him has failed to support or to prove its claims. Thus the Final Bill as advanced by the plaintif is clearly on flimsy and fictitious grounds. It is an admitted fact that since the plaintif had not prepared nor submitted the two running Accounts Bills as required by him and both the said Running Account Bills were prepared by the defendant on its own. It is also and admitted fact that both the aforesaid R.A. Bills were duly accepted by the plaintif without any protest or objection.
44. It is stated that the final bill prepared by the defendant on the basis of the measurements recorded in the aforesaid M.Bs. is absolutely correct and is based upon the actual work done by the plaintif and the alleged final bill wrongly and malafide prepared by the plaintif and has no basis at all. It is stated that the defendant is a statutory Authority which works through its officers/officials. No individual has any personal interest and even the said CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 21/35 officials/officers continue to change being transferred from one post to other and it becomes very important for the plaintif to state absolute cogent grounds for not recording the work done by it, which plaintif failed to establish or even state one single reason for non recording of the work alleged to have have been executed by the plaintif.
45. Ld. Counsel for the defendant stated that another material fact which has neither been stated nor been proved by the plaintif is that since when the defendant stopped recording the alleged work done by it. The plaintif has stated in para 6 of the plaint that the work done by it was duly recorded in the M.Bs. When that was so then obviously no part of the work done by the plaintif had been left unrecorded by the defendant. It is stated that it is an admitted fact that the entire bitumen required to execute the work was provided by the defendant and therefore, the cost thereof was to be deducted from the net payment payable to the plaintif.
46. Ld. Counsel further stated that at the start of the work, a Master Register is opened/prepared which is divided in diferent parts and all the required entries and details are recorded in the relevant parts of the said Master Register. The Bitumen being a controlled material is always first obtained by the defendant and then is issued to the Contractor against receipt in the Register duly kept for the purpose and same practice is adopted in the instant case. The total bitumen issued to the plaintif for execution of the work was 200.616 MT. In this respect, PW1 in his cross-examination held on 25.09.2013 that "I do not recall the quantity of the bitumen CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 22/35 issued by the department. I do not have any record of the bitumen issued as the record is maintained only by the department."
47. Ld. Counsel further stated that the defendant has also filed and proved the original M.A.S. Register wherein the record of bitumen is maintained. It is stated that PW1 has clearly admitted that he did not have or maintained the record of the bitumen issued to the plaintif. Since, the plaintif had neither maintained the record of bitumen nor had the same with it and since the bitumen was the most important item to be used in execution of the work, therefore, no bill least the final bill could be prepared by the plaintif and if any such alleged Final Bill has been prepared by the plaintif than in the absence of the necessary details of the bitumen issued to the plaintif and used for execution of the work, same cannot have any sound basis and no payment can even considered to be made to the plaintif.
48. Ld. Counsel for the defendant stated that PW1 in his cross-examination wrongly denied the M.A.S. Register (Ex. PW-1/D2) which shows the issuance of 200.616 MT bitumen and had intentionally and malafidely refused to identify the signatures of plaintif's representative on page 99 of Ex. PW1/D2 for the receipt of the bitumen. It is an admitted fact that the bitumen was supplied by the defendant and was being obtained by the plaintif from the defendant from time to time. The aforesaid denial and refusal by the PW1 stands in clear contradiction to his aforesaid admission which is to the efect that the record of the bitumen issued to the plaintif is maintained only by the department.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 23/35
49. Ld. Counsel for the defendant stated that PW1 had himself admitted that the record of bitumen issued was always maintained by the defendant but since he had denied the original MAS Register (bitumen part) and had also refused to identify the signatures of his representative, the onus of proof stood shifted upon plaintif even if the same was upon the defendant. However, the plaintif had not lead any evidence in rebuttal and had not at all proved any other bitumen register or document containing record of bitumen. Hence, it stands proved that the defendant had issued 200.616 MT bitumen to the plaintif for the execution of the work.
50. Ld. Counsel for the defendant stated that DW1 during his cross-examination has specifically denied the suggestion that total quantity of bitumen issued, had been consumed in the work. The suggestion made to him about not filing on record any notice or letter issued by the DDA demanding unused bitumen is irrelevant and serves no purpose as he was voluntary stated that the same is mentioned in MAS Register (Ex. PW1/D2). He further stated that 'as per Ex. PW-1/D2 bitumen drums were retained by the Plaintif'. He further stated that 'as per Ex. PW-1/D2 81 bitumen drums were retained by the plaintif'. He denied the suggestion that plaintif had returned the said 81 bitumen drums as per Ex. PW-1/D2. He denied the suggestion that department had not issued any letter to the plaintif because nothing remained/retained by the plaintif.
51. Ld. Counsel for the defendant stated that as per Clause 42 of the Agreement read with Para 26.5 of the CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 24/35 C.P.W.D. Manual, any surplus/left over material which was issued by the Department or had been procured with the assistance of the department had to be returned back to the department. If any such surplus material had not been returned to the department, then recovery fro the same is to be done at Market rates as per Clause 42 of the Agreement read with paras 26.4 (2), 26.4 (4) of the CPWD manual. Further as laid down in clause 26.5.1 of the CPWD Manual, recovery of amount at double the issue rate is required to be made for the material used towards rectification of the defective work.
52. Ld. Counsel for the defendant stated that being an experienced and registered Government Contractor, the plaintif was well aware of the aforesaid relevant provisions of the CPWD Manual as also of the relevant clauses of the Agreement. The fact that the bitumen was a controlled material and had always to be obtained by the defendant and is to be used economically and misuse thereof invited provisions of penalty. It is stated that on behalf of plaintif, it was suggested to the DW1 that as per CPWD Manual Security amount would be due after the final bill is prepared. Accordingly, plaintif itself has relied upon the provisions of CPWD Manual, which in any case are binding guidelines in the execution of works. The DW1 in his cross-examination has clearly stated that DDA follows CPWD Works Manual and that the Agreement also provides that surplus material shall be returned by the plaintif as per Clause 42 of the Agreement.
53. Ld. Counsel for the defendant further stated that the plaintif was issued 200.616 MT bitumen, cost whereof CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 25/35 was Rs.22,28,844/-. As per theoretical calculation for execution of the actual work done, the bitumen required for the use was 163.033 MT. Therefore, after the execution of the actual work, the plaintif had to return 37.583 MT bitumen to the defendant. Since the plaintif had not returned the same, penal recovery was rightly made from the final Bill. It is an admitted fact that various statutory and other recoveries viz Income Tax, surcharge on income tax, sales tax, security, rebate on road roller etc. as deducted in the Final Bill are required to be efected from the Gross amount found due to the Contractor.
54. He further stated that plaintif had also failed to comply with the observations/ objections taken by the Quality Control department. Therefore, recoveries under the head of Q.C. paras is rightful, proper and justified. It is an admitted fact that the work had been executed with delay. Therefore, as per clause 2 read with Clause 5 of the Agreement, plaintif was required to submit a request for grant of Extension of time as per Part-A of the EOT performa and the Superintending Engineer is vested with the authority to impose penalty/compensation for the default upto maximum of 10% of the tender cost. In the instance case, admittedly the plaintif had not submitted the EOT Part-A, therefore, the issue with respect to grant of final extension of time remained unsettled and accordingly, a sum of Rs.32,000/- had been withheld there against.
55. He further stated that the aforesaid amount of Rs.32,000/- withheld against EOT has been mentioned clearly in the MB No. 1045A (Ex. DW-1/5) in two diferent parts viz CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 26/35 Rs.25,000/- and Rs.7,000/-. However, the said amount of Rs.25,000/- has not been mentioned directly in the written statement but has clearly been stated in the affidavit of evidence and the aforesaid M.B. In view of the aforesaid submissions all the recoveries made by the defendant in the Bills including the Final Bill are fully justified, proper, rightful and as per the terms and conditions of the Agreement and after deduction, the same comes to rs.65,813.81 which only is due to the plaintif in addition to the sum of Rs.5,00,000/- which had been deducted as Security Deposit. The defendant has already been willing to give this amount but the plaintif has refused to accept the same.
56. Ld. Counsel for the plaintif further stated that Clause 30 of the agreement specifically provides that no interest shall be payable on the amounts retained by the Engineer-in-charge. It is not denied that in view of Clause 1 of the Agreement, the Security Deposit @ 10% of the estimated cost had been deducted from the Running Account Bills and the same had been adjusted in the final bill. The plaintif was entitled to the refund of the Security Deposit amount of Rs.5,01,812/- but the same could be released only after the maintenance period is over or if the Final Bill was accepted by the plaintif. Since the plaintif had refused to accept the final Bill prepared by the defendant, therefore, the security deposit could not be released. The defendant had never denied the refund of security deposit but it was the plaintif who has refused to take the same. Accordingly, no interest is payable on the security deposit which even otherwise is also interest free in view of the aforesaid Clause. Ld. Counsel referred judgment of Hon'ble Supreme Court in CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 27/35 the case of 'Krishna Bhagya Jala Nigam Ltd. vs. G. Harischandra Reddy and Anr.' AIR 2007 SC 817. Lastly, it is stated that suit deserves to be dismissed with costs.
57. Ld. Counsel for the plaintif also filed written arguments. He has given the brief summary of pleadings i.e. plaint, written statement and written statement as well as documents exhibited in the evidence of PW1.
58. It is stated that the defendant examined one witness namely Chander Mani Garg, Executive Engineer as dW1 and he exhibited the documents i.e. Agreement dated 13.11.1998 as Ex. PW1/1, measurement book Ex. PW1/2 to Ex. PW1/8 the measurement book no. 166 as Mark A, the third and final bill prepared by DDA as Ex. PW1/10. It is further stated that the plaintif has proved on record Ex. Pw1/13, the letter dated 30.05.2000 the plaintif had submitted two bills for a sum of Rs.39,76,922.30 and 19,62,073.95 along with the said letter. The plaintif has given all the measurement of the work carried out by the plaintif along with it. The plaintif has also proved on record that plaintif through various letters exhibited as stated herein above from time to time the payment was demanded by him from the defendant but the defendant have neither finalize the bill nor made the payment.
59. Ld. Counsel for the plaintif further stated that it is the admitted case of the defendant that they have received the bills but did not finalize the same. It is also clear by the record as well as exhibit documents that none of the letters and legal notice was ever replied by the department at any CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 28/35 point of time. The defendant has never raised any query and discrepancy about the bills submitted by the plaintif. The account was not finalized by the defendant before filing of the present suit. It is very pertinent to mention here that it is admitted case of the defendant that work in question was for a contractual amount of Rs.59,07,000/-. As per the allegation of the defendant, work executed by the plaintif was for only amount of Rs.46,09,410/-. Had there is any truth therein, then what had happened to the balance work of the work order which was to be executed by the plaintif. It is not of the case of the defendant that the plaintif has not complete the entire work of about Rs.59,00,000/- rather in the written statement in para 7, they had categorically admitted the entire work completed by the plaintif. It is not the case of the defendant that there was any work left by the plaintif to be executed otherwise there would have been risk and cost recovery on the plaintif by the department. These facts clearly reflect that the bill was raised by plaintif which was not fictitious and the same are executed by the plaintif and the defendant had been making false excuses. The plaintif has proved his case before the Hon'ble Court beyond doubt and entitled the suit amount.
60. With regard to issue no.1, it is stated by Ld.Counsel for the plaintif that this issue cast a duty and onus on the defendant to point out the deficiency or defect by which it would show the work was not executed as shown by the plaintif. The defendant has completely failed to prove the onus cast on it. Only one witness i.e. DW1 was produced by the defendant who was not having any personal knowledge of the work executed. He was admittedly not CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 29/35 posted in any of the three division when the work was carrying out during the project was executed. Even the final bill prepared by defendant was not based on any of the instruction of the witness. The concerned official who were deputed at the time of execution of the work have not been produced by the defendants neither they had anywhere shown any inability to produce the concerned official. These facts itself prove that an adverse inference is to be drawn against the defendant.
61. Ld. Counsel for the plaintif further stated that the witness DW1 produced by the defendant could not stood the test of the cross-examination and broke time to time. He has deposed even against the written statement filed before the court. He could not explain the discrepancy in the amount shown to be payable to the plaintif as per the defendant which is Rs.90,000/- as per written statement and Rs.65,813/- as per his affidavit of chief examination. In the written statement the defendants alleged that the payment of Rs.25,09,688/- against two running bills but in the cross- examination DW1 admitted that the cheque amount is Rs.12,86,892.13. He also admitted that Rs.5,00,000/- was also due to be paid to plaintif as regard security which he stated to have been due from in the month of July 2000 he had completely failed to prove the alleged recovery mentioned in the written statement and chief examination of the witness on account of taking away the bitumen supplied by the department during the execution of work by the plaintif. He admitted that in MAS register i.e. Ex. PW1/2 there is nothing mention of about the alleged story of taking away of bitumen by the plaintif.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 30/35
62. Ld. Counsel for the plaintif further stated that he had failed to prove that the department had ever given any notice to the plaintif for calling upon him to return the alleged taking away of bitumen though he denied the suggestion. In the written statement in para 8 sub clauses E&F there were shown penal recovery of bitumen from the plaintif where as in the cross-examination the witness admitted that there is no condition prescribed in the agreement for imposing penal recovery upon the plaintif on account of bitumen. He further admitted in cross- examination that recovery shown in para 8 as H, I, J, K was not a recovery but the retained amount. The witness falsely stated that the said retained amount on account of QC paras and on account of extension was not settled even after expiry of about 19 years. He deposed against the pleading where the defendant did not disputed the grant of extension contended by the plaintif. He failed to point out either in the chief examination and cross-examination or any defect or in the bills submitted by the plaintif to the defendant hence, the issue no.1 is liable to be decided against the defendant and in favour of plaintif.
63. With regard to issue no. 2 and 3, it is stated by Ld.Counsel that for the plaintif that if the issue no.1 is decided against the defendant, the entitlement to the suit amount is the efect of the issue no.1. It is the otherwise proved by the plaintif in his chief examination by his examination. The plaintif stood by his cross examination and proved his case. He categorically deposed that all the work carried out by him was duly entered in measurement book maintained by him. Moreover as stated herein above the CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 31/35 complete work was executed as admitted by the defendants. Hence, it is clear that the work order for a contractual amount of work about Rs.57,00,000/- could have been executed for only Rs.46,00,000/- as alleged by the defendants. The plaintif is also entitled for interest @ 18% per annum which was correct as per market usage. The contractor has to arrange money from bank which costs not less than 15-16% per annum and further expenses required.
64. I have perused the record. My findings on issues are as under:
ISSUES NO. 1 TO 3:
65. Issues no. 1 to 3 are taken up simultaneously as inter connected. I have gone through the written arguments filed by both the parties. The detailed testimony of PW1 Sh.Satya Prakash Gupta and DW1 Sh. Chander Mani Garg, Executive Engineer discussed herein above in detail. The present suit filed by plaintif on 08.03.2002. The detailed claim mentioned in para 8 and 14. The defendants have denied the entire claim of the plaintif. They have given their statement of account in reply to para 8. The plaintif has proved on record the original letters, correspondence between the parties. It is admitted case of the parties that there is a delay in execution of awarded work. The plaintif has taken the plea of Bitumen was not supplied by the defendant in time. However, in the cross-examination PW1 Sh.Satya Prakash Gupta, Ex. PW1/D1 was put wherein it is specified that 200.616 MT of Bitumen was supplied.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 32/35
66. The plaintif ignored the specific question with regard to the Register Ex. PW1/D2, wherein the authorized person has signed for receiving the Bitumen. On the contrary, the plaintif has not produced any document to show that how much quantity of Bitumen was supplied and how much delay was carried out by the defendant. In the cross-examination, PW1 Sh. S.P. Gupta admitted that first running bill was passed for an amount of Rs.12,41,629/- and second bill passed for an amount of Rs.25,09,688/- including the payment of first running bill. He admitted that security deposit has to be paid in accordance with Clause 17 of the agreement.
67. The defendant examined DW1 Sh. Chander Mani Garg, Executive Engineer as DW1, who proved the measurement book no. 008582 as Ex. DW1/2; the measurement book no. 008587 as Ex. DW1/3; measurement book no. 00785 as Ex. DW1/4; measurement book no. 1045A as Ex. DW1/5; measurement book no. 1054A as Ex. DW1/6; measurement book no. 00787 as Ex. DW1/7. One measurement book no. 1376 was not traceable. Their copies were available on record. According to testimony of DW1, final bill of Rs.40,09,410/- prepared by defendant on the basis of complete work done by the plaintif which is third cum final bill Ex. DW1/10. All the measurements were recorded in the measurement books. During the detailed cross-examination on behalf of plaintif of DW1 Sh. Chander Mani Garg, the measurement books are not challenged. There is no question or suggestion put that these measurements are incorrect or defective and never accepted by the plaintif.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 33/35
68. All the measurement books establish the fact that all the work done by the plaintif recorded at the site and duly proved. I have gone through the final bill Ex. DW1/10. It is undated bill. On the other hand plaintif relied on his Bill Ex. PW1/13 containing the Annexure - A, Annexure - B and Annexure -C. These three Annexures are on plain paper. They are not verified by any authorized person of plaintif as well as not by any Engineer of the DDA. The defendant denied all the three Annexures, therefore, it was the duty of the plaintif to prove all the three Annexures. However, in the evidence, a covering letter mentioning these Annexures has been brought on record but how the measurements and amounts are determined is not proved by the plaintif. Therefore, plaintif miserably failed to prove Ex. PW1/13. On the other hand, defendant proved Ex. DW1/10, the final bill. In the detailed cross-examination of DW1 Sh. Chander Mani Garg, the calculation made in the final bill are not confronted.
69. In my opinion Ex. DW1/10 is proved by the defendant. Accordingly, the plaintif is entitled to Rs.65,813.81 as per terms and conditions of the agreement and after legal deductions. In addition to it, plaintif is also entitled to security deposit of Rs.5 lacs along with interest @ 10% per annum. The plaintif is also entitled to interest @ 9% per annum from filing of the suit till realization along with pendente lite interest on Rs.65,813.81.
70. On the basis of above observation and discussion, all the three issues are decided accordingly.
CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 34/35 ISSUE NO.4 (RELIEF)
71. In view of my findings on issues no. 1 to 3 above, it is held that plaintif is entitled for a decree of Rs.65,813.81 (Rupees sixty five thousand eight hundred thirteen and paisa eighty one only) with interest @ 9% per anum from the date of filing of the suit till realization of the decreetal amount along with pendente lite interest and plaintif is also entitled for a decree of Rs.5,00,000/- (Rupees five lacs only) towards security along with interest at the rate of 10% per annum. No order as to costs.
72. Decree sheet be prepared accordingly.
73. File be consigned to Record Room.
Announced in the open court today the 9th November, 2017.
(Sanjay Kumar) ADJ-02,West/Delhi 09.11.2017 CS No. 28/17/02 (New No.9206/16) Satya Parkash Gupta vs. DDA & Anr. 35/35