Delhi District Court
Pankaj Gupta vs North Delhi Municipal Corporation And ... on 4 August, 2023
IN THE COURT OF Dr. KAMINI LAU: DISTRICT
JUDGE (COMMERCIAL COURT)02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
CS (COMM.) No. 4308/2021
CNR No. DLCT010142012021
Sh. Pankaj Gupta
M/s Gupta Traders
H. No. 5 First Floor Mandir Marg,
Kewal Park, Delhi - 110052.
......Plaintiff
Versus
1. Municipal Corporation of Delhi
Through its Commissioner
Civic Center, Minto Road,
New Delhi110002
2. The Executive Engineer (MII) KPZ
North Delhi Municipal Corporation,
Near Mini Stadium Keshav Puram
New Delhi
......Defendants
Date of filing of suit: 25.10.2021
Arguments concluded on: 04.08.2023
Date of Judgment: 04.08.2023
Present: Sh. S.K. Singh Advocate along with the plaintiff
Pankaj Gupta in person.
Ms. Aarti Bansal Advocate along with Sh. Pankaj
Kumar Jain, Superintendent Engineer II,
Keshavpuram Zone, MCD, Delhi.
Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021
Judgment dated 04.08.2023 Page No. 1 of 14
JUDGMENT:
(Under Order XII Rule 6 CPC) (1) This is a Civil Suit filed by the plaintiff Pankaj Gupta seeking recovery of Rs.13,16,295/ (Rupees Thirteen Lacs, Sixteen Thousand, Two Hundred Ninety Five only) along with pendentelite and future interest interest, from the defendants.
BRIEF FACTS:
Case of the plaintiff:
(2) The plaintiff Pankaj Gupta is the Sole Proprietor of M/s. Gupta Traders, a firm which is duly enrolled as Municipal Contractor with the Municipal Corporation of Delhi. It is pleaded that the Work Order bearing No. 306 and 307 dated 14.03.2017 was awarded to the plaintiff by the defendant no.2 through the tender invited by the defendant no.2. Pursuant to the same, the plaintiff entered into an agreement with the defendants and completed the awarded works to the satisfaction of the Engineerincharge before the stipulated period of time and the period prescribed for defect liability also passed over without any negative remark. According to the plaintiff, the defendants completed the final measurement of the above works and the 1st & Final Bill pertaining to the Work Order no. 306 was passed and recorded in the Measurement Book for a sum of Rs.4,32,992/ on 19.12.2017 and a sum of Rs.49,220/ towards security and earnest money was deposited by the plaintiff in respect of the same. Further, 1st & Final Bill pertaining to the Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 2 of 14 Work Order no. 307 was passed and recorded in the Measurement Book for a sum of Rs.4,36,084/ on 19.12.2017 and a sum of Rs.49,568/ towards security and earnest money was deposited by the plaintiff in respect of the same. According to the plaintiff, a total amount of Rs.9,67,864/ has been withheld by the defendants despite passing of bills and despite several requests. The case of the plaintiff is that as per Clause 9 of General Terms and Conditions of the defendants, the defendants are liable to pass the bills within a period of six/ nine months which the defendants failed to pay and therefore, the defendants are also liable to pay interest @ 12% per annum on entire outstanding amount of Rs.9,67,864/. Being aggrieved by the callous and irresponsible attitude of the defendants, the plaintiff got issued a legal notice dated 11.12.2020 upon the defendants which the defendants neither replied nor complied with the same and hence, the present suit was filed.
Case of the defendants:
(3) The defendants have filed a written statement wherein it is pleaded that no cause of action has ever arisen in favour of the plaintiff and the suit is not maintainable as the plaintiff has failed to file separate suits for separate cause of action as there were two work orders for separate ward number and the allocation for payment for separate work order had to be made by the defendant No.1 separately. It is further pleaded that the suit is time barred by limitation as the outstanding amount allegedly due vide first and final bill, as is apparent on the Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 3 of 14 record and the suit is filed by the plaintiff on 21.10.2021.
According to the defendants, there is a specific condition in the agreement entered into between the parties that the payment of bill will depend on availability of funds in particular head of account from time to time in North DMC and the payments of bills shall be made strictly on queue basis i.e. first the past, liabilities will be cleared and after that the release of payment for passed bills will be in order of the demand received at Headquarter under particular head of account and hence the NDMC did not make any delay in the light of rules/conditions prescribed time to time thereunder and hence, the plaintiff is not entitled to interest. It is further pleaded that the security amount can only be paid after payment of final bill, that too when the plaintiff applies for refund of security amount and make necessary formalities in this regard, including the clearance certificate from Labour Office as per Clause 45 of the General Terms & Conditions of the tender document and original G8 receipts but the plaintiff failed to comply with the terms and conditions.
(4) On merits, the defendants have denied all the allegations made by the plaintiff. It is pleaded that no bill was ever raised on 19.12.2017 with regard to the Work Orders but no bill was ever raised by the plaintiff in respect of the said work orders. However, the first and final bill was passed by the Keshopur Zone and demand was sent to the Headquarters.
Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 4 of 14 Application under Order XII Rule 6 CPC:
(5) When the case was at the stage of admissiondenial of documents by the parties, an application under Section 13A of the Commercial Court Act along with Order XII Rule 6 CPC read with Section 151 CPC was filed by the plaintiff on 23.04.2022 praying that keeping in view the specific admission on the part of the defendants, the present suit be Decreed.
(6) Reply to the said application has been filed by the defendants denying any specific and unequivocal admissions on the part of the defendants pursuant to which the official records relating to the transaction/ Work Order were called and produced by the defendant.
FINDINGS & OBSERVATIONS:
(7) I have heard the arguments advanced before me. The short issue which arises for consideration is, as to whether in view of the averments made by the defendants in their written statement, the plaintiff would be entitled to a judgment on admission under Order XII Rule 6 of the CPC, regarding the principal amount.
Legal Position:
(8) Before coming to the grounds raised in the application, I may note that the law on the scope of Order XII Rule 6 CPC is well settled. The Hon'ble Supreme Court has in a catena of judgments held that the power conferred under Order XII Rule 6 of the CPC is a discretionary power and Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 5 of 14 relief cannot be claimed under it as a matter of right. The provisions of Order XII Rule 6 CPC provides as under:
".....Order XII Rule 6 Judgment on admission
(i) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(ii) Whenever a judgment is pronounced under subrule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced....".
(9) The Hon'ble Supreme Court in the case of Uttam Singh Duggal & Co Ltd. Vs. Union of India, reported in (2000) 7 SCC 120, has put to rest the law on the object and scope of Order XII Rule 6 CPC which I quote as under:
"...... 12. As to the object of Order XII Rule 6 CPC, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rules, it is stated "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of relief to which according to the admission of the defendants, the plaintiff is entitled". We should not unduly narrow down the meaning of this Rule, as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed.....".
Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 6 of 14 (10) In the case of Vijaya Myne Vs. Satya Bhusan Kaura, reported in 142 (2007) DLT 483 (DB), the Division Bench of the Hon'ble Delhi High Court has observed and I quote as under:
"....... 12. The purpose and objective in enacting the provision like Order 12 Rule 6, CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitle the plaintiff to get the decree, inasmuch as such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored....."
(11) Again, in the case of Himani Alloys Ltd. Vs. Tata Steel Ltd., reported in (2011) 15 SCC 273, the Hon'ble Supreme Court has observed as under:
".......11. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be conscious and deliberate act of the party making it, showing an intention to be bound by it. Order XII Rule 6 CPC being an enabling provision, it is neither mandatory nor preemptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trail Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 7 of 14 which permanently denies any remedy to the defendants, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is clear admission which can be acted upon...."
(12) Also, in the case of S.M. Asif Vs. Virender Kumar Bajaj, reported in (2015) 9 SCC 287, the Hon'ble Supreme Court observed as under:
"...... 8. The words in Order 12 Rule 6 CPC "may" and "make such order"....show that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order XII Rule 6 CPC. The said rule is an enabling provision which confers discretion on the court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim....."
(13) In another case titled as Raveesh Chand Jain Vs. Raj Rani Jain, reported in (2015) 8 SCC 428, it has been held by the Hon'ble Supreme Court and I quote as under:
"...... 8. The bare perusal of the aforesaid provision makes it clear that it confers wide discretion on the court to pass a judgment at any stage of the suit on the basis of admission of facts made in the pleading or otherwise without waiting for the determination of any other question which arose between the parties. Since the Rule permits the passing of judgment at any stage without waiting for determination of other questions, it follows that there can be more than one decree that may be passed at different stages of the same suit. The Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 8 of 14 principle behind Order XII Rule 6 is to give the plaintiff a right to speedy judgment so that either party may get rid of the rival claims which are not in controversy....".
(14) After analysing several decisions on the scope of Order XII Rule 6 CPC, the Hon'ble Delhi High Court in the case of Harish Relan Vs. Kaushal Kumari Relan, reported in 2017 SCC Online Delhi 6614, had observed and I quote as under:
"...... 32. As can be seen from the view taken in the above decisions and a series of judicial pronouncements on similar lines, the underlying object of Order XII Rule 6 CPC is to enable the parties to obtain speedy justice. This Court had observed in the case of Tirath Ram Shah Charitable Trust v. Sughra Bi @Sughra Begum (Decd.) reported as 225 (2015) DLT 666, that the object of Order XII Rule 6 CPC is that once there are categorical admissions of facts made by a party, then the litigation should not be permitted to linger on unnecessarily and in appropriate cases, on an application filed by a party under Order XII Rule 6 CPC, asking for a decree on the basis of the said admissions, the court ought to exercise its discretion and bring an end to such litigation by passing appropriate orders. Such admissions can be express or implied. They can be a part of the pleadings or judicial admissions. However, the facts of each case have to be examined for applying the law laid down above......"
(15) A Division Bench of the Hon'ble Delhi High Court in the case of Anupama Bansal Vs. Suraj Bhan Bansal, reported in 2019 SCC Online Delhi 8846, had observed and I quote as under:
"....... 25. As can be seen from the above discussion, the aim and object of enacting Order XII Rule 6 CPC is to empower the court to pronounce a judgment on admission, when such admissions are considered Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 9 of 14 sufficient to entitle the plaintiff in a suit, to a decree. The underlying object of enacting the said provision is to ensure speedy justice and save the parties from undergoing the travails of a protracted trial. Such admissions can be in the form of pleadings or otherwise, i.e., in the documents, correspondence etc. placed on record. Admissions can be oral or in writing. They can be constructive admissions without being specific or expressive, which fact can be inferred from vague and evasive denials in the written statement, while responding to specific pleas taken in the plaint....."
(16) A reading of the aforesaid decisions would show that ordinarily, the rights of the parties have to be decided in the suit. The controversy on merits of the disputed questions of fact cannot be considered at the stage of deciding an application under Order XII Rule 6 CPC. For a judgment on admission to be passed under Order XII Rule 6 CPC, the court has to see as to whether the admission of facts are plain, unambiguous and unequivocal and go to the root of the matter which would entitle the other party to succeed. The object of Order XII Rule 6 CPC is that once there are categorical admission of facts made by a party, then the litigation should not be permitted to linger on unnecessarily and on an application filed by a party asking for a decree on the basis of the said admissions, the court should exercise its discretion and bring such a litigation to an end. [Ref: Indu Singh Vs. Surender Kamboj & Ors., FAO (OS) No.51/2020 decided on 10.11.2020 by the Hon'ble Delhi High Court].
Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 10 of 14 Observations of the Court:
(17) Now coming to the facts of the present case. I may note that in para 5 of the written statement the defendants have specifically stated that the payment of bill will depend on availability of funds in particular head of account from time to time in North DMC. The relevant portion of the same is reproduced as under:
".....That there is a specific condition in the agreement entered into between the parties that the payment of bill will dependent on availability of funds in particular head of account from time to time in North DMC. The payment of bills shall be made strictly on queue basis i.e. first the past liabilities will be cleared and after that the release of payment for passed bills will be in order of demand received at Headquarter under particular head of account. Hence, the NDMC did not make any delay in the light of rules/ conditions prescribed time to time thereunder, thus, the plaintiff is not entitled to any interest on account of imaginary delay in payment as per the amended rules incorporated by circular dated 19.05.2006 in NIT/ Tender conditions....".
(18) Today, Sh. Pankaj Kumar Jain, Superintendent EngineerII, Keshavpuram Zone, MCD, Delhi has appeared and has brought the original files relating to Work Order No. EE(CLZMIV)/SYS/20162017/306 and Work Order No. EE(CLZMIV)/SYS/20162017/307 both dated 14.03.2017. According to him, as per the record, the plaintiff has not submitted any bills and the amount has been calculated by the department relating to two work orders as under:
➢ Work Order No. 306 dated 14.03.2017, the bill of which was prepared on 08.05.2017 for a sum of Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 11 of 14 Rs.4,92,799/ (Rupees Four Lacs, Ninety Two Thousand, Seven Hundred Ninety Nine) (restricted to contractual amount Rs.4,92,200/) which was prepared on the basis of measurements taken by the department as available on the Measurement Book No. 24214. The said bill was passed on 29.12.2017 by the concerned Executive Engineer. The demand had been sent/ dispatched to the Headquarters on 08.03.2019 which amount is yet to be released. The relevant documents in this regard are Ex.C1 (running into 8 pages).
➢ Work Order No. 307 dated 14.03.2017, the bill of which was prepared on 19.06.2017 for a sum of Rs.4,95,677/ (Rupees Four Lacs, Ninety Five Thousand, Six Hundred Seventy Seven) which was prepared on the basis of measurements taken by the department as available on the Measurement Book No. 24215. The said bill was passed on 29.12.2017 by the concerned Executive Engineer. The demand had been sent/ dispatched to the Headquarters on 14.02.2019 which amount is yet to be released. The relevant documents in this regard are Ex.C2 (running into 8 pages).
(19) In this regard, the statement of Sh. Pankaj Kumar Jain, Superintendent EngineerII, Keshavpuram Zone, MCD, Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 12 of 14 Delhi has been recorded separately.
(20) In so far as the plaintiff Pankaj Gupta is concerned, he does not dispute the record produced by the Superintendent EngineerII, Keshavpuram Zone, MCD, Delhi and has submitted that present case may be disposed off on the basis of the same. The plaintiff has specifically admitted that he has not submitted any bills in respect of the work executed by him. According to the plaintiff, he is not pressing his relief of interest on the principal amount and has requested that the defendant be directed to release the payment within the reasonable time. The statement of the plaintiff Pankaj Gupta has also been recorded separately.
(21) I have considered the submissions and the statements made before me. It is apparent from official record of the defendants that the final bills prepared by the defendants on the basis of measurements taken by the defendants in respect of both the Work Orders have been passed by the concerned Executive Engineer on 08.03.2019. In so far as the Work Order No. 306 dated 14.03.2017 is concerned, the demand of Rs.4,92,200/ had already been sent/ dispatched to the Headquarters on 08.03.2019. Further, the demand of Rs.4,95,677/ has also been sent to the Headquarters on 14.02.2019 in respect of Work Order No. 307 dated 14.03.2017. The payments in respect of the aforesaid amounts shall be made to the plaintiff on queue basis. (22) Under the given circumstances, there being an admission on the part of the defendants with regard to the Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 13 of 14 principal amount of Rs.9,87,877/ and the plaintiff not having pressed the relief of interest over the same, I deem it fit to exercise my discretion under Order XII Rule 6 CPC. The suit of the plaintiff Pankaj Gupta is hereby Decreed accordingly. No orders as to costs.
(23) Admission Decree be prepared accordingly.
(24) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 04.08.2023 District Judge (Commercial Court)02,
Central, Tis Hazari Courts, Delhi
Pankaj Gupta Vs. NDMC, CS (COMM) No. 4308/2021 Judgment dated 04.08.2023 Page No. 14 of 14