Delhi District Court
Sh. J.K. Sahni vs Sh. N. K. Prabhakar on 20 January, 2020
CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
CS No. 677/2017 (16042 / 2016)
In the matter of:
1. Sh. J.K. Sahni
Sole Proprietor
M/s. J. K. Construction Company,
D109, LIC Colony,
Paschim Vihar,
New Delhi110087.
Alternate address :
C/o Ajay Gaind, Advocates
D43, Rajouri Garden,
New Delhi - 110 027
.....Plaintiff
Versus
Sh. N. K. Prabhakar,
Executive Engineer,
South Western Division No.9,
Delhi Development Authority,
New Delhi.
....Defendant
Date of Institution of suit : 10.01.2011
Date of transfer to this court : 23.08.2012
Date of reserving judgment : 13.01.2020
Date of pronouncement : 20.01.2020
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CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020
Appearance:
1. Sh. Ajay Gaind, Advocate, Ld. Counsel for plaintiff
2. Sh. Amit Minocha, Advocate Ld. Counsel for defendant
SUIT FOR RECOVERY OF RS. 11, 81,554/ (RUPEES ELEVEN
LAKHS EIGHTY ONE THUSAND FIVE HUNDRED
FIFTY FOUR ONLY
J U D G M E N T:
1. The present suit has been filed by the plaintiff against the defendant seeking recovery of Rs. 11,81,554/ (Rupees Eleven Lakhs Eighty One Thusand Five Hundred Fifty Four only) along with pendentelite and future interest.
2. Relevant facts as emanating from the plaint, giving rise to the cause of action in favour of plaintiff for filing the present suit are that facts of the case are as under:
a) It is averred that plaintiff is sole proprietary concern of Sh. J K Sahni, who is carrying on its business activity of civil construction for government and government agencies.
Present suit has been filed after service of notice upon defendant u/s 53B of the Delhi development Authority Act and acknowledgment of receipt of said notice on 09.07.2020 by the defendant.
b) It is averred that pursuant to a notice inviting tenders, the defendant having found the offer as made by plaintiff acceptable, accepted his offer and conveyed the same to him under his letter dated 28.09.2001 resulting in Agreement Page No. 2 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 No.34/EE/SWD 9/DDA/200102. The quoted amount by plaintiff stood accepted with 2 % rebate for construction of 480 Janta Houses at Sector16B, PocketB, Dwarka Phase II including internal development GR.II.
c) It is averred that the contract entered into, envisaged the period for execution of contract as 21 months, commencing from 08.10.2001 up to 07.07.2003 with reciprocal promises by both parties. The work was commenced by plaintiff despite constraints and hindrances on account of acts of omission and commission attributable to defendant on a continuous basis.
d) It is averred that despite the fact that most of the work that could have been carried out by plaintiff had been executed, yet completion was recorded only on 07.08.2005 i.e. after a period of nearly 25 months from stipulated date of completion envisaged under the contract entered into by and between plaintiff and defendant. The work which had been largely completed was held up due to nonavailability of funds with defendant. Pursuant to recording of completion communications were periodically addressed to defendant and its various offices informing them all of nonrecording of various items of work executed by plaintiff, besides informing them that final bill had not been prepared by defendant, incomplete measurements were being recorded and the plaintiffs were not in a position to submit their final bill due to lack of detailed measurements.
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e) It is averred that though the agreement, more specifically under clause 7 required plaintiff to submit his intermediate, as also his final bill, within prescribed period envisaged under the said clause, he could not do so, and, as on date also is unable to do so, because of nonrecording of final measurements despite repeated requests by way of letters. dt. 08.04.2006, 26.12.2006, 26.03.2007, 13.04.2007, 14.04.2007, 15.09.2007, 17.03.2008 and 16.05.2008. Thereafter plaintiff sent a legal notice dated 01.01.2009 followed by a reminder to his legal notice dated 28.03.2010 where after finally a legal notice in terms of Section 53 B of the Delhi Development Authority Act, 1957 was also served on defendant. The defendant even after the recorded date of completion i.e. 07.08.2005 continued to process the case, as claimed by them, under letter bearing no.1537 dt. 12.07.2007.
f) Despite repeated reminders defendant did not agree either to make payments or release amounts and cesses illegally and unlawfully charged by them for inexplicable reasons. The recovery under the contract of the plaintiff relate to work done and not measured/under measured; work not paid for and/or payments till withheld despite lapse of maintenance period; watch and ward at site beyond maintenance period, withheld security etc., besides non measurement of works executed and total amount claimed is depicted in Para 19 of the plaint.
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g) It is averred that the aforestated amounts are due along with interest on the aforesaid amounts from the date of expiry of maintenance period which expired as far back as June 2006. The plaintiff claims interest @ 15 % on all the aforesaid unpaid items of work executed by him and acknowledged by defendant but not accounted for in the final bill, even though final measurements were not accepted by plaintiff, and for some of the works the measurements recorded even by the staff at site of defendant, had not been incorporated in the final bill. Hence, the present suit.
3. After filing of the suit, summons for settlement of issues were issued to the defendant. Pursuant to service of summons, the defendant tendered their appearance.
4. Defendant appeared in the court and filed written statement interalia submitting that the present suit is liable to be dismissed on the ground that the suit of the plaintiff is defective one as the plaintiff himself does not know against whom he has filed the present suit as in the index title of the suit is "J. K. Construction Company Vs. DDA" but in the memo of parties as well as on the title of the suit on the plaint the same is "J. K. Construction Company Vs. N K Prabhakar. Suit of the plaintiff is liable to be dismissed on the ground of misjoinder and non joinder of the parties as N K Prabhakar is the Executive Engineer in SWD9, Dwarka and who is not necessary party to the suit as the plaintiff is claiming the relief against the DDA. (However vide order dated 21.11.2011 the application under Page No. 5 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 Order VI Rule 17 CPC filed by the plaintiff was allowed and plaint was amended w.r.to the name of the parties.
5. It is submitted that the suit of the plaintiff is liable to be dismissed on the ground that the plaintiff had already received an amount of Rs. 1,30,000/ vide cash challan No. 917 dated 24.01.2008 and cheque No. 599401 dated 24.01.2008 and the cess was levied, which was deducted and recovered from the plaintiff, in pursuance of building and other construction works welfare Cess Act 1996 read with Delhi Building and other construction works Rule. The levy of Cess is not a tax on the sale and purchase of goods as for the purpose as specified under constitution (46th Amendment Act 1982) and therefore, no liability arisen on the defendants to refund the amount claimed by the plaintiff.
6. It is submitted that the amount claimed by the plaintiff for watch and ward is not payable since the completion certificate has been recorded on 07.08.2005 subject to the completion of the pending works and it is mentioned in the completion certificate Clause No. 6 that no watch and ward shall be payable to the agency for carrying out balance works etc. as the contractor has also accepted the same vide MB No. 1651/P95 wherein, the completion has been recorded. It is submitted that moreover, the contractor has accepted the final bill vide MB No. 1650/P35 on 12.07.2007.
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7. It is submitted that the amount claimed by the plaintiff is not supported with any document and the plaintiff deliberately concealed the correct facts as he has received the amount from the defendant DDA and as per the record, DDA is not liable to pay Rs. 40,000/ and Rs. 25,000/ which were with held on account of audit observation and the amount with held on the account of finishing item in unallotted flats and now only 12 flats are unallotted, therefore, the amount can be released.
8. It is submitted that there is no liability on the defendant to refund the amount to the plaintiff however, security amount as submitted by the plaintiff is not lying with the defendant and the plaintiff is only entitled to get Rs. 65,000/ only from the defendant i.e. Rs. 25,000/ and Rs. 40,000/ which was withheld on account of the audit observation and finishing items in unallotted flats.
9. It is submitted that plaintiff has not approached the Court with clean hands and has concealed the material facts from the Court. The plaint is without any cause of action and suit is not maintainable. No amount of any kind is due against the defendant/DDA and present suit has been filed only to harass and humiliate the defendant. Hence, the suit filed by the plaintiff be dismissed.
10. Plaintiffs have filed replication to the written statement of the defendant, thereby, denying all the allegations in written statement and has reiterated its allegations leveled in the plaint.
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11. From the pleadings of the parties, following issues were framed on 21.12.2011 : ISSUES
(i) Whether the plaintiff is entitled to recover an amount of Rs. 5,76,000/ from the defendant for Watch and Ward at contract site ? OPP
(ii) Whether the plaintiff is entitled to recover an amount of Rs. 6,05,000/ under heads 1 to 5 as mentioned in the prayer clause which is allegedly due to the paid by the defendant ? OPP
(iii) Whether the suit is bad for mis joinder or nonjoinder of necessary parties ? OPD
(iv) Relief.
12. The parties to the suit were thereafter called upon to substantiate their respective cases by leading evidence.
13. Sh. J.K. Sawhney, proprietor of the plaintiff company appeared in the witness box as PW1 who has relied on following documents :
(i) Letter No.F.54.(185)/SWD.9/DDA/220203/2425, dated 06.01.2005, written by Executive Engineer, SWD9 to M/s J.K Construction regarding provisional extension of time of completion of work is Ex. P1
(ii) Internal note dated 10.01.2005 of EE, SWD9, written to SE, CC2 & Chief Engineer (Dwarka), requesting for release of payment to the agency, is Ex. P2,
(iii) Letter No. F.4 (346) / AE(P)/SWD9/DDA/97072, dated 18.05.2005, written by EE, SWD9/DDA to M/s J.K Construction Company is P3,
(iv) Copy of internal note No.CE(DWK)/10 (5)/05/431, dated 21.02.2006, written by SE (HQ), Dwarka to CE (Dwarka)/DDA, is Ex. P4,
(v) Letter dated 26.12.2006, written by PW1 to defendant is Ex.
P5, Page No. 8 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020
(vi) Letter No.J/480/881, dated 26.03.2007, written by PW1 to defendant is Ex. P6,
(vii) Letter No.F3/SD1/SWD9/DDA/19, dated 23.04.2007, written by AEI, SWD9, DDA to M/s J.K Construction Company is Ex. P7,
(viii) Copy of internal note bearing No.F12(255)/AE(P)/I/CC 2/05/DDA/1537, dated 12.07.2007, written by EE (P), CC 2/DDA to EE, SWD9/DDA, is Ex. P8,
(ix) Copy of Final Bill of Rs.3,94,035/ released by Asst.
EngineerI/SWD9/DDA in favour of M/s J.K Construction Co. is Ex. P9,
(x) Copy of EIS (Extra Item Statement), prepared by JESWD 9/DDA relating to carriage of earth by mechanical transport and other items is Ex. P10,
(xi) Letter No.F.4(346)/AE(P)/SWD9/DDA/698, dated 29.04.2008, written by EE, SWD9/DDA to M/s J.K Construction Co., is Ex. P11,
(xii) Copy of letter dated 16.05.2008, written by M/s J.K Construction Company to Executive Engineer, SWD9/DDA, is Ex. P12,
(xiii) Copy of letter bearing Ref. No.JKC/VS/2009, dated 01.01.2009, written by M/s J.K Construction Company to The Vice Chairman, DDA, Vikas Sadan, New Delhi23, is Ex. P13,
(xiv) Copy of legal notice bearing Ref.No.AGC/SWD9/720/ 2009, dated 01.01.2009, issued by plaintiff's counsel to the defendant is Ex. P14,
14. Thereafter, plaintiff's evidence was closed.
15. Sh. Mahesh Chander Executive Engineer, DDA appeared as DW1 who testified through his examinationinchief by way of affidavit Ex.DW1/A and proved on record documents :
i) Copies of the bills of M/s S.K. Jena, M/s Pradeep Kumar Singh and M/s M.B. Contractor are Ex. DW1/1 to Ex.
DW1/5, Page No. 9 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020
ii) The copies of joint inspection reports by the defendant as well as DMRC, first on 27.11.2010 are Ex. DW1/6 to Ex. DW1/14,
iii) Copy of the statement of account is Ex. DW1/15,
16. Thereafter, the defendant evidence was closed.
17. I have heard the arguments advanced by Sh. Ajay Gain, Advocate Ld. Counsel for the plaintiff and Sh. Amit Minocha, Advocate Ld. Counsel for the defendant and have perused the oral and documetnary evidence lead on record.
18. My issue wise findings are as under : Issue no. 1
19. The burden to prove issue no. 1 is on plaintiff and during the course of arguments, Ld. Counsel for plaintiff has contended that plaintiff is not supposed to tender any proof for providing watch and ward charges to the DDA, in view of the Circular No. 510 of DDA. Otherwise also, plaintiff in letter dated 21.12.2006 (P5) stated that watch and ward are still being paid by the plaintiff for which more than Rs. 5,00,000/ has been spent. He further contended that a legal notice dated 30.10.2010 under Section 53(B) of the DDA Act was issued by plaintiff to DDA. The plaintiff has claimed watch and ward charges and DDA Officer has made endorsement on the above said legal notice vide endorsement dated 22.11.2011 for seeking reply from the concerned official as recorded in para no. 1 & 4 of the above said legal notice. He further contended that the plaintiff in his crossexamination has specifically testified that he continued Page No. 10 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 providing watch and ward on the site till December 2011, plaintiff is therefore, entitled to an amount of Rs.8,84,000/ in the following bifurcations i.e. Rs. 6,60,000/ for 400 Flats, (ii)Rs. 97,200/ for 50 flats and Rs. 1,45,200/ for balance flats (this amount as watch and ward charges is Rs. 5,76,000/as detailed in para no. 19 of the plaint), in as much as actual work was completed by the plaintiff on 07.08.2005 as detailed in the Ex. P9. The liability of the plaintiff to maintain the site as per clause 14 of the Contract for a period of six months after completion of work ended on 06.02.2006.
20. In support of his contention, plaintiff has relied on (i) Navbharat Construction Company v. DDA, in FAO (OS) No. 126/2010 passed by Hon'ble High Court of Delhi (ii) Rajinder Kumar v. DDA on OA No. 1294/2010 passed by Hon'ble CAT, Principal Bench, Delhi.
21. In rebuttal, Ld. Counsel for the defendant has contended that plaintiff has specifically admitted in his cross examination that he neither claimed any watch and ward from the defendant/DDA nor any bill was ever raised by the plaintiff as he has no right to claim the said amount from the defendant and plaintiff has no locus standi to claim watch and ward expenses from the defendant. It is contended that plaintiff has not raised any bills for the claim and therefore has no right to claim the said amount by virtue of the present suit.
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22. It is contended that the legal notice Ex. P13 and reminder Ex. P14 also did not talks about any claim for watch and ward expenses on behalf of the plaintiff, therefore, without raising any bill and its rejection thereof, no right of claim for watch and ward charges arises in favour of the plaintiff from the defendant. In support of his contention, he has relied upon Shiv Kumar Wasal & Co. v. DDA in OMP No. 215/2014 judgment passed by Hon'ble High Court of Delhi.
23. So far as the claim of the plaintiff to the tune of Rs.
5,76,000/ as watch and ward provided by the plaintiff at the site of the defendant is concerned, it may be noted that plaintiff has not produced any labour record which he was bound to maintain, in terms of the contract/agreement/award Ex. 'Court Document No. 1'.
24. It may be noted that the plaintiff has issued notice to defendant i.e. the Vice Chairman DDA & Executive Engineer DDA,in terms of the letters dated 01.01.2009, but through these letters dated 01.01.2009 Ex.PW13 and letter dated 01.01.2009 PW14 respectively, plaintiff has nowhere admittedly demanded watch and ward charges. Apart from that, plaintiff through another letter dated 17.03.2008 available at page no. 401405 of judicial record (which document has not been exhibited) made no claim for watch and ward charges. The plaintiff, through reminder dated 28.03.2010 (not exhibited), to legal notice had not demanded any watch and ward amount from DDA.
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25. It may be noted that plaintiff for the first time demanded watch and ward in the legal notice under Section 53B of the DDA Act, but prior to that plaintiff has never demanded "watch and ward" charges under the head "watch and ward", charges. Otherwise also, as per Clause 42 of the Agreement (Ex. Court Document 1), it was duty of the plaintiff to bear all the incidental charges including the storage and safe custody of the material and plaintiff was also liable to construct suitable godowns at the site of work for storing material from safety against damages and for that purpose plaintiff was supposed to bear all watch and ward charges as per Clause 42 of the agreement.
26. So far as the case law relied upon by the plaintiff is concerned, in Nav Bharat (supra), the claim of the petitioner (therein) of 'watch and ward' charges was allowed by the Ld. Arbitrator and Single Bench of Hon'ble High Court of Delhi set aside findings regarding 'watch and ward' charges, in the award passed by Ld. Arbitrator, whereas the Division Bench allowed the claim against 'watch and ward' charges while making following observations, which are reproduced as under :
"In respect of Claim for watch and ward, our attention has been drawn to the response filed by the DDA before the Arbitral Tribunal, which learned counsel rightly contends to be vague and illusive. All that has been pleaded by the DDA is as follows :
The contractors vide his letter No. NBCC/Narela/203 dt.3693 (Copy enclosed R22) has given an undertaking to keep, watch and ward of the houses till allotment of the houses. So the claim of rs. 5,30,000/ is not justified, denied and hence may be rejected."Page No. 13 of 34
CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 XXXXX "The learned Arbitrator was not impressed with the argument that in the letter the appellant/contractor had had undertaken not to claim anything on account of Watch and Ward till the flats were allotted. We are also convinced that no such inference or collusion can be drawn from the letter of the Contractor/Appellant/ At the highest, all that he had conveyed was that he would assume the responsibility of Watch and Ward. There is no material on record to indicate that the DDA had earlier, or in response to the said letter, clarified that no payments will be made against Watch and Ward.
XXXX We have extracted the ratio of McDormett for the reason that we respectfully disagree with the approach of learned single judge in as much as he has set aside the amounts awarded in the subject Claim No. 29. We find that there is no incongruity in the agreement arrived at between the parties if this were so, it would be entirely inadmissible, unreasonable or illogical to refer to the Appellant/Contractor's Letter allegedly Undertaking to carry on Watch and Ward, If the Contractor did not envisage this responsibility, and the DDA had called upon the Contractor to perform these duties, the latter would be liable to compensate the former for the expenses incurred in the performance of this responsibility"
27. The bare perusal of the said observations makes it crystal clear that in the above said judgment, DDA has made vague and illusive contentions regarding watch and ward charges payable to the petitioner (therein) in as much as the stand of the DDA was that petitioner (therein) had given undertaking to keep watch and ward of the houses till the allotment of the houses. Otherwise also there was a finding of facts recorded by Ld. Arbitrator which must not have been Page No. 14 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 interfered in the objection under section 34 of the Arbitration & Conciliation Act. As such, the facts of the present suit stands distinguishable to the facts of the abovesaid judgment.
28. As far as the ratio of Rajinder Kumar (supra) is concerned, the petitioner (therein) was facing the following charges which are reproduced as under :
"Shri Rajinder Kumar, AE recommended and forwarded the bills for payment of the above mentioned works amounting to Rs.85,268.00 for the period prior to the date of drawl of the Supplementary Agreement and further in contravention to the EMs circular No. 509, 510 dated 2.5.97 and also circular No. 520 dated 30.3.99 which is also irregular and loss to the organisation."
29. In the said judgment, various circulars namely 474, 509, 510, 520 issued by the DDA were interpreted and in Para No. 3 it has been observed as under :
"3. The learned counsel for the Applicant has challenged the impugned orders on the following two grounds:
(a) that the orders of the disciplinary and appellate authorities are totally nonspeaking; and
(b) that the note of disagreement is based on wrong interpretation of circulars number 474, 509, 510 and 520, issued by the Engineering Member from time to time.
4. Before we may consider the arguments of the learned counsel for the Applicant, it would be useful to consider the various circulars, which have formed the basis of the report of the inquiry authority as well as the note of disagreement.
5. Circular number 474 is dated 08.11.1995. It is on the subject of drawing of supplementary agreements for housing projects. On the subject of the watch and ward of the work, the following instructions are given in the circular:
Page No. 15 of 34CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 "3. During the operation of the Supplementary Agreement the watch and ward of the entire work, including the completed portion of the work of the Main Agreement shall continue to remain the responsibility of the contractor. The contractor shall also be liable to make good any loss or damage to the executed items of Main Agreement. The contractor shall not be paid anything extra on this account."
Another circular number 509 was issued on 02.05.1997 superseding the circular number 474 dated 08.11.1995. In the circular the provision for the watch and ward was modified as follows:
"8 The contractor's would be entitled for the payment of watch and ward/service charges etc during the operation of the Supplementary Agreement in respect of the existing contracts also as per the predecided rates to be worked out on the basis of the norms/guidelines separately issued vide circular No. 510 dated 2.5.97."
XXXX The circular number 510 was also issued on 02.05.1997, which provided guidelines for the operation of Supplementary Agreement in respect of watch and ward/service clause. The circular has been reproduced below:
According to the instructions issued vide Circular No. 509 dt.2.5.97 regarding operation of Supplementary Agreement, contractors are required to be paid for watch and ward/service charge etc. for the operation of Clause2
(j) contained therein."
XXXX "Circular number 520 was issued on 30.03.1999, which clarified the instructions of the Engineering Member issued under circulars 509 and 510. The circular has been quoted in full below:
Certain clarifications have been sought to standing instructions No. 509 dt. 020597 in respect of applicability of the payment of watch & ward charges for the intervening period i.e. from the date of closure of the Main Agreement till the signing of the Supplementary Page No. 16 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 Agreement by the contractors in respect of old contracts wherein condition of the Supplementary Agreement does not form part of the contract. The matter has been examined in detail and it has been decided that watch & ward charges are payable for the intervening period subject to the following: The contractors have been continuing to provide watch & ward services during the said period.
The contractors entering into the Supplementary Agreement for the same, including finishing items, fixing of fittings etc. required to be executed at the time of handing over of the possession of the flats."
30. In para no. 12, it was observed as under :
"It is very clear from the reading of the circulars that payment of watch and ward staff between the conclusion of the Main Agreement and drawing up of the Supplementary Agreement was permitted by the circulars and that the circulars provided flat rates based on the number of houses in the housing pocket for calculation of the amount to be paid for watch and ward staff. Nowhere has it been mentioned that the payment would be based on the actual number of watch and ward staff deployed by the contractor."
31. From a bare perusal of the above said findings, it is crystal clear that there was a supplementary agreement executed between the petitioner (therein) and DDA, whereas in the present case there is no supplementary agreement between the plaintiff and defendant in terms of the above said circular No. 509 and 510 issued by DDA. Therefore, the facts of the case Rajinder Kumar (supra) is not applicable to the facts of the present case and stand distinguishable.
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32. So far as the ratio of the judgment Shiv Kumar Wassal (supra) is concerned, it was observed in para no. 18 as under :
"18. This Court is of the view that the contractor has not placed on record any evidence to prove that the watch and ward was deployed by the petitioner on the site. The contractor has not placed on record salary slips, attendance register etc in support of the claim. The contractor also did not raise any invoice on the DDA. In the absence of any such evidence, the contractor is not entitled to claim No.5/14. The finding of learned arbitrator relating to claim No.5/14 is not based on evidence and is therefore, set aside."
33. A bare perusal of the law laid down by Hon'ble High Court, it is crystal clear that until and unless watch and ward are pleaded and proved, no such charges under the head 'watch and ward' can be granted to the plaintiff. From the above said discussion, it can be safely concluded that plaintiff is not entitled to any 'watch and ward' charges. This issue is accordingly decided in favour of the defendant and against the plaintiff.
Issue No 2.
34. The burden to prove this issue is on the plaintiff and plaintiff has claimed amount under five heads namely :
S.No. Name of Work Amount Due
(Rs.)
1. Earth carted beyond 50 mtrs to be paid for Rs.40,000/
but not paid (kept in partV)
2. Maintenance period expired on 06.02.2006, Rs.25,000/
yet amounts have not been released in full.
3. Amounts kept in partV Rs.1,30,000/
4. Part security still not released Rs. 10,554/
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CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020
5. Cess levied though contractually not payable Rs.4,00,000/
by me, and has not been released to me, thus far, even though no cess has been deducted from other contracts executed along with my contract.
Under head Nos. 1 & 235. This amount claimed by the plaintiff has not been controverted by the defendant in as much as in para 16 to 20 of the written statement this amount is admitted. Therefore, claim of the plaintiff under head No. 1 & 2 is admitted by the defendant and plaintiff is held entitled to the amount of Rs. 65,000/ under the head nos. 1 & 2.
Head No. 3.
36. As far as head no. 3 is concerned, plaintiff has made a statement in the court on 16.03.2016 that he has received an amount of Rs. 1,30,000/, therefore, this relief under head 3 of issue no. 2 stands satisfied in terms of statement made by plaintiff and plaintiff also admitted in his written submission that he has received the amount of Rs. 1,30,000/.
Head No. 437. So far as the part security is concerned, it is claimed that an amount of Rs. 10,554/ is withheld by defendant, the plaintiff has pleaded in letter dated 26.03.2007 (Ex. P6) that security amount has not been released. Plaintiff has relied upon audit observation vide Ex. DW1/X3, Ex. DW1/X4 and Ex. DW1/X5 in order to contend that security amount is admitted by defendant. It may be noted that in these documents, security Page No. 19 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 deposits are detailed but defendant has not made categoric denial that part of the security amount is withheld by defendant, which fact was in specific knowledge of the defendant, therefore, by virtue of provisions Section 106 of Evidence Act, facts which are specifically in the knowledge of the party, must be proved by that party, therefore, defendant must prove these facts which defendant failed to prove that plaintiff is not entitled to the security amount, therefore, plaintiff is held entitled to the surety amount of Rs. 10,554/.
Head No. 5.
38. So far as the contention regarding levying of cess by the defendant, which contractually is not payable by the plaintiff in as much as the cess is not applicable to concluded contract is concerned; plaintiff has claimed refund of the cess which is wrongly deducted by the defendant. It is contended that there was a delay in execution of work for the reasons attributable to the defendant, which fact was admitted by the defendant in as much as the provisional extension was granted by the defendant for conclusion of work and inter se, correspondence between the parties, depicts so. Therefore, the said deduction has been wrongly made by the defendant in as much as neither the contract between the parties did not envisage any such levying of cess, nor the Act/circulars provides for imposition of cess to completed contracts. Otherwise also, as per the agreement between the parties Clause 21 provides for conditions to be imposed by defendant and none of such condition provided for levying of such cess. He has contended Page No. 20 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 that, viewed from any angle, levying of cess is illegal, per se and in violation of the terms and conditions of the agreement as well as ratio of law laid down by Superior Courts. Ld. Counsel for the plaintiff has relied on the following judgments :
1. Rashtriya Ispat Nigam Ltd. v. Dewan Chand Ram Saran, in Civil Appeal No. 3905 of 2012, judgment passed by Hon;ble Supreme Court of India.
2. Gopal Glass Works Ltd. v. Union of India & Anr., passed by Hon'ble Gujarat High Court in Special Civil Application (SCA) 11916/2012.
39. Ld. Counsel for the plaintiff has further contended that neither concession given cannot be withdrawn by notification nor terms of the contract/agreement can be rectified/modified/ altered during the subsistence of the contract in this regard. Reliance has placed judgment titled as Numaligarh Refinery Ltd. v. Daelim Industrial Company Ltd. In Appeal (Civil) No. 4079 of 2007 passed by Hon'ble Supreme Court of India.
40. Ld. Counsel for the defendant has relied upon case titled as Rangamal v. Kuppuswami & Anr. in Civil Appeal No. 562 of 2003, passed by Hon'ble Supreme Court of India in order to contend that burden of proof never shifts and it is upon the plaintiff to prove that he is entitled to the amount claimed.
41. At the outset, it may be noted that plaintiff has claimed Rs. 4,00,000/ as "cess" wrongly deducted by defendant whereas, in letter dated 26.03.2007 (Ex. P6) amount on Page No. 21 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 account of deduction of cess is detailed as Rs, 3,78,000/ and the relevant clause of Ex. Court Document No. 1 is as under :
"Tendered rates are inclusive of all taxes and levies payable under the respective statutes. However, pursuant to the constitution (Forty Sixth Amendment) Act 1982, if any further tax or levy is imposed by statute, after the date of receipt of tenders, and the contractor, the reunder, necessarily and properly pays such taxes/levies, the contractor shall be reimbursed the amount so paid, provided such payment if any, is not in the opinion of Superintending Engineer (whose decision shall be final and binding) attributable sto delay in execution of work within the control of the contractor.
(i) The contractor shall keep necessary books of account and other documents for the purpose of this condition as may be necessary and. Shall allow inspection of the same by a duly authorised representative of Govt. and further shall furnish such other information/documents as the EngineerinCharge may require.
(ii) The contractor shall within a period of 30 days of imposition of any further tax or levy, pursuant to the Constitution (Forty Six Amendment) Act, 1982, given a written notice thereof to the EngineerinCharge that the same is given pursuant to this condition, together with all necessary information relating thereto."
42. It may be noted that DDA vide circular dated 07.02.2006 (Ex. DW1/2) has issued instructions regarding levying of cess upon all the Contractors whose work are complete as much as those whose works are still in progress and relevant portion of the said circular is reproduced as under :
"Sub XXXX i. XXXXX ii. The parliament with a view to arguments the resources of the building and other Construction Workers Welfare Board constituted under the Building Conditions of Service) Act 1996 enacted another legislation i.e. the Building and other constructions Workers Welfare Cess act, 1996 vide Notification No. 28 dated 19.08.1996 which Page No. 22 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 provides for levy and collection of Cess on the cost of construction incurred by an employer. The Government of India has framed and notified on 26.03.1998 the Building and other Construction Workers Welfare Cess rules - 1998 the under the aforesaid Act. The Government of India also notified "The Building and other Construction Workers (Regulation of Employment and Conditions of Service) central Rules 1998 vide Notification dated 19.11.1998.
iii. Consequently, the Government of NCT of Delhi has notified, the Delhi Building and other Constriction Workers (Regulation of Employment and Conditions of Service) Rule 2002 framed under the provisions of Section 62 of the aforesaid Central Act (act of Government of India) i.e. the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 vide notification no. DLC/CLA/BCW/01/19 dated 10.01.2002.The Govt. of NCT of Delhi, as a follow up action, had further notified the constitution of "The Delhi Building and Other Construction Workers Welfare Board under the Chairmanship of the Minister of Labour of Govt. of NCT of delhi vide Notification No. 151 dated 2.9.2002"
iv. CPWD vide Office Memorandum No. DGW/CON/192 dated 11.06.2004 has modified Clause No. 19 of General Conditions of contract of the standard contract formats to be adopted in all future NIT's stipulating therein that the contractors shall also comply with the provisions of the above mentioned Acts. XXXX vi. Similar provision/subclause should also be incorporated in all other standard Contract formats as well, which are also at some time or the other, adopted for the purpose of getting the works executed.
vii. These instructions are both for future NITs as well as in respect of ongoing works as on 10.01.2002 onwards. It is made clear that Cess, under the above mentioned provisions of the Act, shall also be required to be deducted from all the above mentioned ongoing contracts from 10.01.2002 onwards, as clarified by Secretary (Labour) vide their office letter No. 17(10) BOCW/PG/Lab./05/207 dated 16.08.2005."
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43. Prior to that Govt. of NCT of Delhi issued notification dated 16.08.2005 wherein, provisions for imposition of cess has been incorporated and relevant portion of the said notification is under :
"The Government of NCT of Delhi vide Notification No. DLC/CLA?BCW/01/19 dated 10.01.2002 notified the Delhi Building and Other Construction Workers (RE&CS) Rules 2002 and accordingly, has constituted the Delhi Building and other Construction Workers Welfare Board vide Notification No. DLC/CLA/BCW/02/596 dated 2 nd September, 2002. Accordingly, the Building and Other Construction workers Welfare Cess Act, 1996 (hereinafter referred as the Cess Act) and Building and Other Construction workers Welfare Cess Rules, 1998 (hereinafter referred to as the Cess Rules) have become operative w.e.f. January 2002 in the whole of NCT of Delhi.
XXXX It shall be ensured that no building plan is approved of by such local bodies without collecting 1% cess."
44. From the bare perusal of the abovesaid notification and circular it may be noted that GNCT of Delhi has issued notification dated 16.08.2005 which is a public document and judicial notice of the said document can be taken, thereafter, in terms of this notification DDA has issued Circular No. 576 (Ex. DW1/2) and existence of said circular has not been denied by the plaintiff in his testimony in as much as plaintiff admitted in his crossexamination that Circular No. 576 (Ex. DW1/2) was in his knowledge.
45. Now the question arises whether DDA was competent to invoke the provisions contained in the above said circular Page No. 24 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 issued pursuant to the above said notification issued by Govt. of NCT of Delhi for levying of cess.
46. In this regard, it may be noted that the relevant Clause as reproduced above (in Ex. Court Document No. 1) provided that if any further tax or levy is imposed by Statute, after the date of receipt of tender and the Contractor, thereafter pays such taxes/levies, the contractor shall be reimbursed by DDA for the amount so paid meaning thereby, if any, further cess/tax is levied and the Contractor/plaintiff has paid such tax/cess, thereafter, DDA was supposed to reimburse plaintiff for such amount of cess.
47. So far as the contention of the plaintiff that the circular is not applicable to the case of the plaintiff in as much as the contract of the plaintiff already stood concluded and DDA has recorded such fact that the work stand completed on 07.08.2005 in terms of Ex. P9 is concerned, the said contention appears to be attractive but the same is found fallacious as Clause (vii) of Ex. DW1/2 depicts that cess under the provisions of the Act shall also be required to be deducted from all the ongoing contract w.e.f. 10.01.2002 onwards. Therefore, on 10.01.2002, the work of plaintiff in terms of the agreement/contract was not completed which admittedly completed on 07.08.2005. Therefore, the provision of this circular issued by the DDA in this regard are mutatis mutandis applicable to the case of the plaintiff and plaintiff was rightly saddled with the liability of cess in terms of the Act passed by Page No. 25 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 Parliament, notification issued by Govt. of NCT of Delhi and the circular issued by DDA in terms of compliance of notification issued by Govt. of NCT of Delhi.
48. So far as judgment relied upon by the plaintiff is concerned, suffice it to say that in Gopal Glass (supra) the issue involved was whether terms and conditions of the contract can be altered with retrospective effect and relevant paras of the said judgment are reproduced as under :
"6.1 Learned Senior Counsel for the petitioners has submitted that as per the terms of the contract between the petitioners and the respondent No.2, the petitioners are governed by APM rates and that therefore, the impugned directions by respondent No.1 and / or impugned demand by respondent No. 2 tantamount to variation in terms of the contract. Learned Senior Counsel for petitioners have submitted that impugned demand raised by respondent No.2 is not only time barred but is contrary to the terms and conditions of the contract entered into by the respondent No.1 with present petitioners. It is also contended that variation in terms of the contract and amendment in contract are sought to be made unilaterally and that too without any opportunity of hearing to the petitioners. It is submitted that contracts are sought to be retrospectively amended which is not permissible more so when the contacts are sought to be amended at the direction of the government (respondent No.1) which also is not permissible in view of the terms and condition of the contract. The impugned communication and actions are also challenged on the ground that such retrospective recovery is impermissible in law. It is also claimed that retrospective recovery is sought to be made by wrong interpretation of the circular / letter of respondent No.1 and incorrect interpretation of the pricing order dated 20.6.2005. Learned Senior Counsel for the petitioners have also submitted that the demand for retrospective recovery of differential price is opposed to public policy and is contrary to the contract executed between the petitioners and the respondents."Page No. 26 of 34
CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 XXXX "9.7 It is claimed and alleged that the respondent No.2 has, unilaterally and in breach of the terms of contract, retrospectively revisedincreased the price and retrospective recovery is being enforced. It is also contended on behalf of the petitioners that in view of the contractagreement between the parties, the supplysale of gas to the extent of contracted quantity (which is described and known as APM allocation) had to be made at APM rates and the supply made in certain specified circumstances even beyond APM allocation was also to be made at APM rates; however the respondent No.2 has demanded nonAPM rates for supply of gas beyond APM allocation and that the respondent is not right or justified or authorised to charge nonAPM rates for supplysale of gas beyond/in addition to the APM allocation and that the recovery sought to be made for past period, i.e. from July 2005 to March 2010 is impressible in view of the agreed terms of contract. Thus, the period in dispute in present petition is from 1.7.2005 to 31.3.2010."
49. The Hon'ble High Court of Gujarat has observed in para no. 10.9 as under :
"10.9 The disputes raised in present group of petitions fall within the realm of private commercial contract between the parties and in light of the above mentioned characteristics of the contracts and the nature and scope of dispute, the contracts or the dispute do not involve public law element and merely because number of consumers affected by respondent No. 2 are more or merely because the respondents are "state" and / or "instrumentality of state" and / or "instrumentality of State", the disputes between the parties, which are in private law domain and arise from purely commercial contracts are not capable of being categorised as disputes in realm of public law or involving public law element."
50. A bare perusal of the above said para, it is crystal clear that no such findings has been recorded by Hon'ble High Court of Gujarat that recovery of gas price at revised rate with Page No. 27 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 retrospective effect was illegal per se in as much as those writ petition were dismissed.
51. So far as the ratio of Rashtriya Ispat Nigam Ltd.
(supra) is concerned, it may be noticed that in the said judgment, sales tax was passed on to the respondent (therein) by the petitioner (therein) as the service tax was brought into force on 05.11.1997 vide Notification No. 44/77 with effect from 16.11.1997. Consequent thereupon, the appellant deducted 5% tax on the bills of the respondent for the period 30.11.1997 to 06.08.1999 as by the amendment of the definition of asessee effected on 12.05.2000 (though retrospectively effective from 16.07.1997) the liability to pay the service tax was shifted to the person, who was availing service as the assessee. The respondent, however, refused to accept the deductions, and raised a dispute for arbitration under Clause 15 of the terms and conditions mentioned above and the dispute was referred for the arbitration to a sole arbitrator.
52. The ld. Arbitrator rejected the claim of the respondent (therein) and relevant para of the award passed by Ld. Arbitrator has been dealt in para no. 11 of this judgment, which is as under:
"Thereafter, he dealt with the question of liability to pay the service tax, and by a detailed award dated 25.5.2004 rejected the contentions of the respondent and dismissed the Claim Petition. In the penultimate paragraph, the learned arbitrator held as follows: "Clause 9.3 of the Tender Terms and Conditions of the Contract, to my mind is clear & unambiguous. Thus it is the Page No. 28 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 Respondent who is the assessee. It is also true that liability is of the Respondent to pay the tax. But then, under the contract, under clause 9.3 to be more precise, it was agreed that it would be the claimant who shall bear "all taxes, duties and other liabilities" which accrue or become payable "In connection with the discharge of his obligation."
Service tax was one such tax/duty or a liability which was directly connected with "the discharge of his obligation" as the clearing & forwarding agent. It is this contractual obligation which binds the claimant and though under the law it is the respondent who is the assessee, it can & rightly did deduct the service tax from the bills of the claimant in terms of the said contractual obligation, the validity and legality of which has not been challenged before me."
53. The Hon'ble Supreme Court, set aside the order/judgment of the Double Bench of Hon'ble High Court by making following observation :
"26. As far as the submission of shifting of tax liability is concerned, as observed in paragraph 9 of Laghu Udyog Bharati (Supra), service tax is an indirect tax, and it is possible that it may be passed on. Therefore, an assessee can certainly enter into a contract to shift its liability of service tax. Though the appellant became the assessee due to amendment of 2000, his position is exactly the same as in respect of Sales Tax, where the seller is the assessee, and is liable to pay Sales Tax to the tax authorities, but it is open to the seller, under his contract with the buyer, to recover the Sales Tax from the buyer, and to pass on the tax burden to him. Therefore, though there is no difficulty in accepting that after the amendment of 2000 the liability to pay the service tax is on the appellant as the assessee, the liability arose out of the services rendered by the respondent to the appellant, and that too prior to this amendment when the liability was on the service provider. The provisions concerning service tax are relevant only as between the appellant as an assessee under the statute and the tax authorities. This statutory provision can be of no relevance to determine the rights and liabilities between the appellant and the respondent as agreed in the contract between two of them. There was nothing in law to prevent the appellant from entering into an Page No. 29 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 agreement with the respondent handling contractor that the burden of any tax arising out of obligations of the respondent under the contract would be borne by the respondent.
XXXX
28. It was pointed out on behalf of the appellant that it is conventional and accepted commercial practice to shift such liability to the contractor. A similar clause was considered by this Court in the case of Numaligarh Refinery Ltd. vs. Daelim Industrial Co. Ltd., reported in [2007 (8) SCC 466]. In that matter, the question was as to whether the contractor was liable to pay and bear the countervailing duty on the imports though this duty came into force subsequent to the relevant contract. The relevant clause 2(b) read as follows:
"2(b) All taxes and duties in respect of job mentioned in the aforesaid contracts shall be the entire responsibility of the contractor..." Reading this clause and the connected documents, this Court held that they leave no manner of doubt that all the taxes and levies shall be borne by the contractor including this countervailing duty.
29. In any case, assuming that clause 9.3 was capable of two interpretations, the view taken by the arbitrator was clearly a possible if not a plausible one. It is not possible to say that the arbitrator had travelled outside his jurisdiction, or that the view taken by him was against the terms of contract. That being the position, the High Court had no reason to interfere with the award and substitute its view in place of the interpretation accepted by the arbitrator. The legal position in this behalf has been summarized in paragraph 18 of the judgment of this court in SAIL vs. Gupta Brother Steel Tubes Ltd. (supra) and which has been referred to above. Similar view has been taken later in Sumitomo Heavy Industries Ltd. vs. ONGC Ltd. reported in [2010 (11) SCC 296] to which one of us (Gokhale J.) was a party."
54. In this case, before passing of the Finance Act 2000, it was customer/respondent (therein), was assessee to pay Page No. 30 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 service tax but after passing of the amendment in the Act in 2000, the petitioner (therein) was held to be the assesse and it was observed that service tax is a direct tax and it is possible that it may be passed on the customer and therefore, in view of the terms and conditions of the agreement entered into between the parties, it was provided for that liability of service tax will be borne by respondent (therein) and the findings made by Ld. Arbitrator was found not to be faulted one in as much as parties in terms of the agreement i.e. respondent (therein) agreed to bear the service tax, therefore, there is nothing in the above said judgment that no cess/tax can be passed on by one of the party to the contract to the party in terms of the terms and conditions of the contract, otherwise, it was held that service tax can be passed on the persons receiving the services as per agreement between the parties, therefore, this judgment stands distinguishable to the present case.
55. So far as the ratio of judgment Numaligarh Refinery (supra) is concerned, in the said judgment it was observed as under :
"...This section also clearly says that unless a different intention appears from the terms of the contract, in case of the imposition or increase in the tax after the making of a contract, the party shall be entitled to be paid such tax or such increase. In this connection, the intention of the parties is to be ascertained, as per the clauses mentioned above. A perusal of the contract makes it clear that DIC is under obligation to pay the taxes, duties and levies. Therefore, the intention is very clear that taxes and duties will be the obligation of the DIC."Page No. 31 of 34
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56. It was observed in this judgment that the terms and conditions of the agreement clearly lays down that all taxes, duties and levies have to be borne by the contracting party. It was further observed that countervailing duty which came into force by the Statute and hence in face of the various Clauses of the consolidated agreement it was to be paid by the petitioner (therein). Therefore, the ratio of this judgment support the case of the defendant that cess can be levied by defendant as per the mandate of the Statute, relevant notification and circular as well as the terms and conditions of the Ex. Court Document No. 1
57. In view of the above, the DDA was right in deducting the amount of cess to be paid by the plaintiff to the Government and there is nothing illegal in the said action of DDA, accordingly this head 5 under Issue no. 2 is decided in favour of the defendant and against the plaintiff.
58. So far as the judgment relied upon by Ld. Counsel for the defendant regarding the burden of proof is concerned, suffice it to say that burden of proof never shifts from shoulder of the plaintiff who has come to the court seeking relief but onus to prove always keeps on shifting and the said judgment is to the effect that the party who asserts the facts is supposed to prove those facts.
59. No issue has been framed on limitation, otherwise, submissions has been made by Ld. Counsel for defendant that the suit is barred by Limitation in as much as final bill has been Page No. 32 of 34 CS No. 618/2012 J.K. Sahni v. Executive Engineer DDA DOD : 20.01.2020 prepared in 2007 and suit has been filed after three years, therefore, suit is barred by time. To rebut the said contention of Ld. Counsel for the defendant, Ld. Counsel for the plaintiff has submitted that suit was filed in the year 2011 and evidence filed during the course of proceedings by the defendant shows that even in March 2011, part payments of final bill was admitted by due to the plaintiff. It is submitted that in the written statement also, the defendant admitted that payments are still being due to the plaintiff.
60. It is contended that in view of admission made by the defendant towards payment being due, the issue of limitation would not be attracted as held by Hon'ble High Court in the case of Salwan Construction Company v. Union of India, 41 (1990) DLT 374, wherein the issue of limitation seeking arbitration was agitated by the Union of India and the same was deducted in favour of the claimant by the Hon'ble High Court.
61. The defendant admitted in the written statement that they have to pay to plaintiff certain amounts, therefore, the contention that suit is barred by limitation as agitated would be unsustainable in the eyes of law. It may be noted that defendant has admitted the payment to be made by defendant to plaintiff in certain paras of written statement, therefore, in view of the admission of defendant regarding payment to be made to plaintiff, the suit cannot be termed as barred by limitation.
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62. Even though the plaintiff has claimed interest @ 24% per annum however, not an iota of evidence is on record in this regard. This court is of the view that interest of justice will meet if simple interest @ 6% per annum is awarded.
Issue no. 3
63. The onus to prove this issue was on the defendant, however, no evidence has been lead by defendant in this regard except a bald allegation raised in the written statement, therefore issue no. 3 is decided in favour of the plaintiff and against the defendant.
Relief
64. In view thereof, the suit of the plaintiff is "decreed" as follows :
a) Decree in the sum of Rs. 75,554/ (Rupees Seventy Five Thousand Five Hundred Fifty Four Only) alongwith simple interest @ 6% per annum from the date of filing of suit till its realization, is passed in favour of plaintiff and against defendant.
b) Plaintiff is also entitled to cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Digitally signed VIJAY by VIJAY
Announced in the open court on KUMAR DAHIYA
20th Day of January 2020.
KUMAR Date:
2020.02.18
DAHIYA 13:19:03 +0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
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