Delhi District Court
Yamuna Singh vs Gnct Of Delhi Etc on 24 December, 2024
Digitally
signed by
SANATAN
SANATAN PRASAD
PRASAD Date:
2024.12.24 In The Court of Sh. Sanatan Prasad,
14:59:50 District Judge-02, (East),
+0530
Karkardooma Courts, Delhi.
CNR NO. DLET01-002746-2015
CS No. 864/2016
In the matter of :-
Sh. Yamuna Singh,
Sole Proprietor of
M/s. Aakash Refrigeration &
Electrical Engineering Works,
R/o 107, Gali No.5, Railway Road,
Saboli, Delhi-110093.
.....Plaintiff
Versus,
1. GNCT of Delhi,
Through its Chief Secretary,
Delhi Sachivalaya, I.P.Estate,
New Delhi.
2. Secretary, (Education),
GNCT of Delhi, Room No.6,
Main Building, Old Secretariat,
Delhi-110054.
3. Director, (Education),
GNCT of Delhi, Room No.14,
Northern Wing, Old Secretariat,
Delhi-110054.
4. Regional Director, (District East),
Director of Education, Rani Garden,
G.S.S.School, Shastri Nagar, Delhi-110031.
.....Defendants
Date of institution : 29.06.2015
Date of reserving order : 24.08.2024
Date of decision : 24.12.2024
CS No. 864/2016
Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.1 of 28
SUIT FOR RECOVERY OF RS. 4,03,216.00.
Present : Ms. Shashi Panwar, Ld. Counsel for the plaintiff.
Sh. Ashish Sharma, Ld. Counsel for the defendants.
JUDGMENT
1. Brief facts of the case, relevant for disposal of the present suit, are, that the plaintiff has filed the present suit on the averments that he is the sole Proprietor of M/s. Aakash Refrigeration & Electrical Engineering Works and deals in maintenance and supply of all kinds of electrical appliances, and is having his shop/office at above stated address. Defendant No.4 vide Work Order, dated 03.04.2012, entrusted the maintenance of electrical fittings, lights, fans, inverter, air- conditioners and other electrical appliances of three buildings of District East, (SV Anand Vihar Building, Shakarpur Zone-II Building, RD and Zone-III at Rani Garden), and as per the said Work Order, plaintiff started providing maintenance and other allied works/services to the defendants and had raised the following bills from time to time :-
S.No. Invoice No. Date Amount in (Rs.)
1 641 29.04.2012 19500.00
2 643 01.05.2012 14900.00
3 644 02.05.2012 19500.00
4 646 04.05.2012 15900.00
5 648 06.06.2012 13400.00
6 649 07.07.2012 19800.00
7 653 10.07.2012 19500.00
8 656 15.07.2012 17100.00
9 657 18.07.2012 14200.00
10 658 22.07.2012 18000.00
CS No. 864/2016
Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.2 of 28
11 659 27.07.2012 19000.00
12 660 02.08.2012 19000.00
13 661 08.08.2012 19300.00
229100.00
2. It is, further, averred that after submitting the above mentioned bills, plaintiff approached the defendant No.4 with request to release the outstanding payments, but, it avoided, on one pretext or the other, for the reasons best known to them. The plaintiff retrieved photocopies of the said bills through RTI, which were diarized by the office of the defendant No.4 and were duly verified by the concerned branch officer and as such, there was no qualms/reservations about the quality and price of the work done. Plaintiff was surprised to know through RTI that the Office of Superintendent, District East, (Care Taking Branch), Anand Vihar, Vide its letter, dated 23.08.2012, had sought some clarification from the plaintiff, however, no such alleged letter had ever been received by the plaintiff and plaintiff came to know about the same only through RTI, dated 18.02.2015, that the aforesaid bills have not been cleared/kept pending. Plaintiff, was further, surprised to know from the First Appellate Authority's letters, dated 18.02.2015 and 27.03.2015, (wrongly stated in para 5 of the amended plaint as 27.03.2014, though, as 27.03.2015 in the original plaint : sic ). that during the year 2012-2013, the office of the defendant No.4 had not received any bills from the plaintiff. The letters, dated 18.02.2015 and 27.03.2015, also official notes provided by the PIO of the defendants show that there was no transparency, clear intent to disclose the correct factual position and this was all done, just to harass and extract money / illegal gratification, qua the said bills from the plaintiff, which CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.3 of 28have been misplaced deliberately. Further, no FIR had been lodged in respect of loss of documents/registers from the Office of Education Department, Anand Vihar, Delhi-110092.
3. Plaintiff met defendant No.4 and requested several times including, verbally, to trace the bills/registers and to release the outstanding payments, but, to no avail and as such, a legal notice, under Section 80, of CPC, was issued to the defendants, on 27.04.2015, for release of an amount of Rs.3,70,700/- with interest @ 24% p.a., which was duly served, but same went unresponded and prayer is made to pass a decree for Rs. 4,03,216/- with interest @ 24% p.a. pendente lite and future.
4. Summons of the suit were served upon the defendants and it appears that there is a joint written statement, filed by all the four defendants, duly verified by them with the signature of Ms. Saroj Bala Sain and her supporting affidavit, duly sworn and verified and she has has also deposed, as PW-3, in the matter.
5. The defendants have contested the suit and in the written statement, preliminary objections to the suit have been taken, on the grounds, as stated therein, that plaintiff firm is a not a legal entity, in the light of the law, as laid down by Hon'ble High Court of Delhi, in case of Miraj Marketing Corporation v. Vishaka Engineering and Anr., RFA No. 349/2003, and thus, the said firm cannot sue or be sued, as the plaintiff, himself, alleged to be the sole proprietor of the said firm, but, he did not submit any document in that regard, i.e., shop registration number certificate under relevant Shop and Establishment Act; VAT number certificate; Service Tax number certificate; TAN number certificate & any other documents in support of his Proprietorship, which are necessary and mandatory for sale & purchase CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.4 of 28and for providing services, as alleged by the plaintiff. Further, plaintiff has failed to bring anything on record to show change of his address, (as mentioned in most of the alleged bills, related to the year 2012), and changed his address without any notice to the department and cherished to remain in dormant state, also slumber over the matter for more than three years. The department vide its letters No. DE/47/4/26/CT/2013/58, dated 10.04.2013 & DE/47/4/26/CT/2013/283, dated 23.08.2013, sought requisite documents from the firm, in respect of justification, reasonability and specifications, with regard to rates of parts, installed in the ACs, Inverter and electrical fixtures, as per MRP as well as labour charges, item wise, pertaining to the alleged bills, but the said letters were returned undelivered, as no such office of the firm, at the given address, existed at that time. The plaintiff/firm had filed the present suit, although, he was required to address the concerns raised by and before the concerned department, as regards justification and reasonability as to rates to parts, fixtures, service and others, as per terms and conditions, stipulated in the letter, dated 03.04.2012, and also to comply with the provisions of GFRs and as such, non- responding to the aforesaid letters, would not give any departmental remedy, available to the plaintiff, accordingly, the suit is not maintainable and is liable to be dismissed in limine. The Letter No. F.DE/47/4/26/DDE/CT/12/3360, dated 03.04.2012, from the Office Superintendent, (CT), District East, filed by the plaintiff, categorically, states that work order shall be subject to approval of HOD, i.e. Regional Director of Education, East Region, however, same could not attain finality, thus, the said letter is not a work order and is, merely, an expression of intent, to give the work orders to the plaintiff/firm in CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.5 of 28future, as and when demand arises. Further, the said letter does not show description of any specific work, allotted to the plaintiff/firm with regard to any particular branch/office with respect to buildings mapped on three different places. Also, the works, if to be done by the plaintiff/firm, then they were required to be verified from the concerned branches/offices and a work verification register was also required to be maintained by the plaintiff/firm and subsequently, copies thereof were required to be submitted at the time of raising the bills with the department. The plaintiff/firm had failed to produce individual work orders, also verification registers, against the alleged raised bills, which were found not justified by the Competent Authority and bills were rejected and in the absence of any such work orders/verification registers, it will lead in its entirety and general prudence that no work orders, as alleged, were ever executed with the plaintiff/firm, who/it failed to submit the clarifications/justifications, as sought.
6. The alleged bills, are highly inflated, non-descriptive, non-item wise, without rate, specification, date, place/office and were without mentioning the fact as to when and where the alleged works or services were executed/provided, further, said bills do not carry signature of recipients in respect of such services/maintenance, as bill No.634, dated 22.04.2012, shows that plaintiff has claimed therein an amount of Rs.15800/- on account of 2 TR AC Gas Charging @ Rs.3500/- each, for 4 ACs, i.e., Rs.14000/-, also on account of change of two Capacitors with labour charges @ Rs.900/- each, i.e. Rs.1800/-, totaling to Rs.15,800/- and the said bill No.634, nowhere mentions for which branch/office, the said work was done and who were the recipients of these services, further, there was no verification of the CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.6 of 28said jobs by any official/officer and the bill was raised without attaching any work order, as per requirement of Letter, dated 03.04.2012, also no copies of verification register for such jobs, were ever submitted to the department. Similarly, bills, dated 22.04.2012, 26.04.2012, 06.06.2012, 07.07.2012, 15.07.2012, 18.07.2012, 22.07.2012, 27.07.2012 were raised with respect to repairs of 33 ACs, amounting to Rs.1,24,300/-, however, again, above stated discrepancies were found therein, including their place of service and installation. Further, bills, dated 25.04.2012, 29.04.2012, 02.05.2012, 04.05.2012, 07.07.2012, 10.07.2015 (sic : 10.07.2012), & 08.08.2012, totaling to Rs. 43,500/-, were raised within a very short span period of three and half months with above mentioned discrepancies, in respect of 290 tube lights, despite without mentioning their location, i.e., branch/office of their installation, and as such, no cause of action has been made out against the defendants. These bills must have been segregated item wise & rate wise, i.e. parts, fixtures etc., used in such jobs/services, as per individual work order, including labour charges, specified in the work orders. The suit sans any cause of action and is liable to be rejected, out-rightly, under Order 7, rule 11, CPC. The suit is time barred, as it was filed in July, 2015, in respect of bills for the period April, 2012 to August, 2012 and the amount claimed therein is of three years or more old. Replying on merits, all other averments, as mentioned in the plaint, have been denied and prayer is made to dismiss the suit with costs.
7. The plaintiff has also filed rejoinder to the written statement, reiterating, therein, the averments, made in the plaint and denying the averments, as mentioned in the written statement and prayer is made for decretal of the suit.
CS No. 864/2016Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.7 of 288. Vide Order, dated 05.02.2016, following issues were framed for adjudication :-
1. Whether the bills raised by the plaintiff have been duly verified by the Official of the Department concerned? OPP.
2. If the issue No.1 is decided in favour of the plaintiff, then whether the plaintiff is entitled to recovery of suit amount along with interest and cost, as prayed ? OPP
3. Relief; And in support of his case, plaintiff has examined Sh.
M.A.Khan, LDC, Office of Deputy Director of Education, East Zone, District East, D-Block, Anand Vihar, Delhi, as PW1. Plaintiff, examined himself, as PW-2, and filed his evidentiary affidavit and proved it, as Ex.PW2/A, also has relied upon the documents Ex.PW2/B, Ex.PW2/C1 to C13, also Ex.PW2/D, which is de-exhibited as Mark-A; Ex.PW2/E, which is de- exhibited as Mark-B; Ex.PW2/F, Ex.PW2/G1 to G4 and Ex.PW2/H1 to H4 and has reiterated his entire case. PW-2 was duly and extensively cross-examined by the Ld. Counsel for the defendant.
Dr. Saroj Bala Sain, Regional Director, (East), Directorate of Education, GNCT, Rani Garden, Geeta Colony, Delhi has been examined as PW-3, who has produced the record of RTI application and its reply and proved the same as Ex.PW3/A, (colly). She was duly cross-examined by Ld. Defence Counsel. Sh. Sandeep Dutta, Office Superintendent, (Care Taker), District East, (SV Anand Vihar Building, Shakarpur, Zone-II Building and RD and Zone-III Office, Rani Garden), examined himself, as PW-4, who filed his evidentiary affidavit and proved it, as CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.8 of 28Ex.PW4 and has relied upon the documents Ex.PW1/B, (Ex.PW2/B : sic, there is no such document on record as Ex.PW1/B and accordingly, reliance is being placed on Ex.PW2/B), and was duly and extensively cross-examined by the Ld. Counsel for the defendant. Smt. Laxmi Awasthi, Assistant Commissioner, GST, ITO, Delhi, examined herself, as PW-5, who filed her evidentiary affidavit and proved it, as Ex.PW5/A. She was duly and extensively cross-examined by the Ld. Counsel for the defendant and the plaintiff's evidence was closed on 16.10.2018.
To controvert the case of the plaintiff, the defendant has examined Dr. Davindera, Deputy Director of Education, (Zone-01), D-Block, Anand Vihar, New Delhi-110092, as DW-1, who filed his evidentiary affidavit and proved it, as Ex.DW1/A and has relied upon the documents Ex.DW1/1 to Ex.DW1/3. He was duly cross-examined by the Ld. Counsel for the plaintiff and the defendant's evidence was closed on 29.03.2022 and the matter was listed for hearing final arguments.
9. I have heard Ld. Counsels for the parties and carefully perused the entire judicial record, also written arguments, submitted by the parties and my issue wise findings are as under :-
Findings on issue No.1
10. This is an issue, to the effect, as to, "Whether the bills raised by the plaintiff have been duly verified by the Official of the Department concerned? OPP" and onus to prove this issue was on the plaintiff and to prove the same the plaintiff has examined PW1, Sh. M.A.Khan, CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.9 of 28LDC, Office of Deputy Director of Education, East Zone, District East, D-Block, Anand Vihar, Delhi, who has deposed in his examination-in- chief that he has brought the stock registers for the year 2011 to 2014 and the work registers were maintained by the agency/firm, who had performed the work in the Director of Education and these are four stock registers for the year 2011-2012 and the bills bearing numbers 641, 643, 644, 646, 648, 649, 656, 657, 658, 659, 660 and 661 were not noted in the stock register, as same were neither verified from the concerned office nor the work register was submitted by the plaintiff. The opportunity to cross-examine this witness has resulted in nil.
PW-2 Sh. Yamuna Singh, the plaintiff, has reiterated his case, as mentioned in the plaint, in his evidentiary affidavit Ex.PW2/A also and has placed reliance upon certain documents, as mentioned therein. In his cross-examination, PW-2 has deposed that as per the work order, he was supposed to maintain a work register with regard to the work done by him and same was required to be submitted by him along with the bills. He further deposed that he was required to get the bills verified from the HOD in respect of the work executed by him, as per the work order. He deposed that he had submitted the work register with the bills, however, he does not have copy of the same.
During his cross-examination, PW-2, has admitted in his cross that he has not mentioned in the bills that he is enclosing work order register along with the bills in respect of the executed work and all bills pertain to the work executed by him in DD, East. He deposed that he had executed the work on the instructions of then Superintendent Sh. Sandip Dutta and he used to get the complaints verbally from the officials and thereafter they used to sign the alleged work register, CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.10 of 28maintained by him. He has denied the suggestion as wrong that the payments of bill could not be processed for the reason that the work register was never submitted along with the bills. He has admitted that on the bills Ex.PW2/C1, C2, C3, C4 and C5, there is no stamp mentioning the entry of the same in the stock register of the department. The date mentioned as 01.11.2012 is the entry number at the time of submitting bills, however, he cannot tell whether there was any signature by the Care Taking Branch on the stamp in Ex.PW2/C6 to C13 and affirmed that the signatures on the same are of Mr. Sandip Dutta, who had verified the bills. He has denied the suggestion as wrong that the signatures of Mr. Sandip Dutta on Ex.PW2/B are different from the signatures as appearing on Ex.PW2/C6 to C13. He again said, the signatures are different on both the exhibits. He deposed that Mr. Sandip Dutta had signed the bills Ex.PW2/C6 to C13 in his presence, who marked the same to Mr. Shyam LDC.
PW-3, Dr. Saroj Bala Sain, Regional Director, (East), Directorate of Education, GNCT, Rani Garden, Geeta Colony, Delhi; A summoned witness has proved the record relating to RTI application and its reply, as Ex.PW3/A, (OSR).
During her cross-examination, PW-3 has deposed that plaintiff has not submitted the work order register, therefore, same was not available with the office of Directorate of Education. The plaintiff has not submitted the copy of work order and verification of the work done by him, therefore, the bills had not been paid till that date, as the department was unable to verify whether the work had been done by the plaintiff or not in respect of the bills, claimed by the plaintiff.
CS No. 864/2016Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.11 of 28PW-4 Sh. Sandeep Gupta, who was posted as Office Superintendent, (Care Taker), District East, (SV Anand Vihar Building, Shakarpur, Zone-II, Building and RD and Zone-III Office, Rani Garden), during the year 2007-2012, had tendered his evidentiary affidavit, as Ex.PW4 in his evidence and had placed reliance upon the document Ex.PW1/B and in his examination-in-chief, he has deposed that vide work order, dated 03.04.2012, plaintiff was entrusted the maintenance of electrical fittings, lights, fans, inverter, air-conditioners and other electrical appliances of three buildings of District East, as above. He further deposed that the work register was always maintained and kept in the custody of then care taker Mr. M.A.Khan, LDC and all the work entrusted to the plaintiff were verified by a responsible official, who entered the same in the work register, which was then countersigned by PW-4 and thereafter same was sent for approval/release of payment. He also deposed that it was the duty and responsibility of the department to maintain the work register and not of the plaintiff.
During his cross-examination, PW-4 has stated that he knew the plaintiff since when he joined the Education Department, as he was already working as a electric contractor there. He remained there in the Education Department from 2005 till 2012 and in the East District from 2007 to 2012. The plaintiff used to call him on phone regarding his due payment even after he got transferred from the said department. He does not remember as to who had issued the contract for maintenance of the building to the plaintiff. The bills raised by the plaintiff, used to be approved by the concerned Deputy Director and at that time, he was posted as Office Superintendent, Administration. He was supposed to look after the entire administration work of teachers/principals. He was also supervising the general maintenance CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.12 of 28of the building, which would include the electrical work as well. Whenever, plaintiff used to raise the bill, it would go to the concerned zone and they used to recommend it to him and he used to forward it to the Deputy Director. He was given a written order by the Deputy Director for supervising the maintenance work, which was not available with him/PW-4, but, it was probably of the year 2008 or 2009. He has denied the suggestion as wrong that he was not having any authority to recommend the bills of the plaintiff for payment after verifying them. A work register was used to be maintained at their office. He used to cross check the work done by the plaintiff and counter sign the said register. There was no other contractor for electrical work with the department at that time except the plaintiff. He has admitted it to be as correct that it was not necessary to approve the entire bill as raised by the contractor, as it is. He has further admitted it to be as correct that some of the documents/bills Ex.PW2/C1 to C13 have been forwarded by him under his signatures, which are Ex.PW2/C6 to C13. He has denied a suggestion as wrong that the material to be used during maintenance such as tube light, bulbs etc. used to be supplied from the government store, which is significant to note. He also stated that the bills were verified by the department on the basis of existing rate list for maintenance of electrical works. He is not sure as to whether the disputed bills, raised by the plaintiff were not in accordance with the existing rates of electric maintenance and that is why the payment has not been made to him qua the said bills till that date. He has admitted that when the bills were submitted to him by the plaintiff, same were not accompanied with work verification register. He voluntarily deposed that due to said reason, he sent the bills to the Care Taker, M.A.Khan, for their verification. He has denied CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.13 of 28a suggestion as wrong that work register was with the plaintiff and it was his duty to annex the copy of the same in respect of the work conducted by him. Although, he was having the additional charge of Care Taking Branch, but, he does not remember the exact period of the same and he voluntarily deposed that it might be from 2009, approx. He further deposed that as per procedure of department, any work order can be given after there was a approval of the Regional Director, but can't recollect if such was taken or not, in the present case.
PW-5 Smt. Laxmi Awasthi, who was posted as Assistant Director of Education for East District, (SV Anand Vihar Building, Shakarpur, Zone-II, Building and RD and Zone-III Office, Rani Garden), during the year 2007-2012, had deposed in her examination-in-chief that the plaintiff was entrusted with the maintenance work of electrical fittings, lights, fans, inverter, air-conditioners and other electrical works of three buildings, as above, and Care Taking department was responsible to keep/maintain work register for each and every work done in all three buildings so that bills can be verified through the same during payment and the said work registers were maintained and kept in the custody of Care Taker Mr. M.A.Khan, LDC.
During her cross-examination, she had deposed that she was posted as Assistant Director, Education, District East, w.e.f. August, 2009 to August, 2014 and she was looking after the administration, vigilance and care taking was also part of her duties. She admitted it to be correct that care taking branch was not directly under her but was part of the administration. At that time Sh. Sandeep Dutta was the Incharge of the Care Taking Branch. The Deputy Director of the district was responsible for all the branches. She admitted it to be correct that Sh. Sandeep Dutta CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.14 of 28was working as Superintendent and she knew about the same, as he worked under her. The decisions regarding the care taking branch matters used to be taken by the Deputy Director and the purchase committee. She had signed a work order in favour of the plaintiff. The work order, Ex.PW2/B was shown to the witness and after seeing the same, she submitted that it does not bear her signatures and she voluntarily, deposed that there were other work orders, which were signed by her. She has denied the suggestion as wrong that no work order other than Ex.PW2/B was ever issued in favour of the plaintiff. She does not orally, remember the number of work order/s issued in favour of the plaintiff during her tenure. No other private agency was maintaining the buildings of east district during her tenure there. She is unaware, if M/s Anand Industrial was also engaged for the maintenance of the buildings. The witness has been shown page No.11C, of Ex.PW3/A, (colly), who identified her signatures at point A, thereupon and she deposed that it was the approval of the purchase committee as well as purchase order for purchasing the goods, mentioned therein from Kendriya Bhandar. She further deposed that work orders for electrical maintenance used to be given to the plaintiff, however, as per her information, the said records were not available in the district. She has denied a suggestion as wrong that no approval for granting work orders, as above, to the plaintiff, was ever obtained or given. She deposed that she does not remember, if she had signed on the said registers, however, in her routine course of business, she must have signed on those registers as well as other registers. The entry in the work register was made by the LDC and counter signed by the Superintendent. She has denied the suggestion as wrong that the requirement of the work was entered by the officials of the department and the work done was entered in the register by the private CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.15 of 28agency who conducted the work and thereafter, it is verified and counter signed by the Superintendent and then by the Incharge of the Office where the work has been done. Ex.PW2/B gave the correct procedure at point X encircled in red colour. She has admitted it to be correct that as per the said procedure, the bill has to be submitted by the agency along with the verification report. She has denied the suggestion as wrong that since the plaintiff had not submitted the verification report along with the bills in respect of the work done by him pursuant to the work orders, therefore, his bills have not been passed. She voluntarily deposed that he used to follow all the procedure. She has denied a suggestion as wrong that the plaintiff never followed the given procedure. She is not aware as to why the payment of the plaintiff was withheld and voluntarily, deposed that the plaintiff had given his best services to the department. She had deposed that she had personally, not made any recommendations during her tenure in writing for releasing the payment to the plaintiff and again, voluntarily, deposed that she had orally made instructions and denied the suggestions as wrong that the same was withheld due to the negligence of the plaintiff and not because of any deficiency of ( or : sic) negligence on the part of the defendant or she was deposing falsely at the instance of the plaintiff.
11. On the other hand, in defence, the defendant has examined Dr. Davindera, Deputy Director of Education, (Zone-01), D-Block, Anand Vihar, New Delhi-110092, as DW1, vide his evidentiary affidavit Ex.DW1/A and in his examination-in-chief, he has reiterated the defence of the defendant, as set up in the written statement and has also relied on Ex.DW1/1, i.e., Letter, dated 10.04.2013, also Ex.DW1/2, i.e., Letter, dated 23.08.2013 and Original Notings, dated CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.16 of 2828.03.2013, as Ex.DW1/3.
During his cross-examination, DW1 has denied the suggestion as wrong that the suit is within limitation. Further, stated that he does not know whether plaintiff is the proprietor of M/s Aakash Electrical or not. He has denied the suggestion as wrong that the plaintiff complied with all the formalities, as required by the department for processing and payment of bills in duplicate, in reply to a question, if the same contains the procedure for filing the bills with the department and has answered that the letter seeks only clarification of the rates and not the procedure. Similarly, he has replied as above and has admitted it to be correct that there is no mention of verification of bills and submission of work register, as per Ex.DW1/1. He does not know whether the work register was, (being : sic), maintained by the department or by the plaintiff during that period. He even does not know whether the care taker maintains the work register on the basis of his non-posting in the Division/Zone/District. He has denied the suggestion as wrong that since the officials of the department were corrupt and demanding money for processing of pending bills, therefore, the bills of the plaintiff were not processed. He has denied the suggestion as wrong that the bills of the plaintiff are correct and as per the procedure or that department had intentionally, not processed and cleared the payment of the plaintiff as the plaintiff has not fulfilled their illegal demands or that the plaintiff is entitled for the payment of the bills submitted by him with the department. He accepts that the department had given the documents under RTI application filed by the plaintiff, which includes the above exhibited documents. The witness has stoutly denied a suggestion as wrong that he was deposing falsely in the matter, however, he has accepted that the department has received the notice U/s 80, CPC, sent by CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.17 of 28the plaintiff and the address of the plaintiff in the legal notice is mentioned as Aakash Refrigeration, but, has, volunteered to say that as per the record of department, plaintiff had been changing his address.
12. I have, carefully, gone through the testimonies of the PWs and it appears that the PW4, Sh. Sandeep Dutta, the then Office Superintendent, (CT), District East, (SV Anand Vihar Building, Shakarpur Zone-II Building, RD and Zone-III at Rani Garden), during the relevant period for the years 2007-2012 and PW-5 Smt. Laxmi Awasthi, Assistant Director of Education for East District, (SV Anand Vihar Building, Shakarpur, Zone-II, Building and RD and Zone-III Office, Rani Garden), during the year 2007-2012, are the most material and best possible witnesses to depose in the favour of the plaintiff and also truth of the matter, before the Court. These witnesses have deposed in their individual and not official capacity / capacities, as stated by them, themselves, but, in loop with their department. PW-4, in his cross-examination, done on 30.01.2018, at page No.2, has deposed to the effect :-
"...It is correct that it was not necessary to approve the entire bills as raised by the Contractor, as it is. It is correct that some of the document/bills Ex.PW2/C-1 to C13 have been forwarded by me under my signatures. They are Ex.PW2/C-6 to Ex.PW2/C-13, which bear my signatures. It is incorrect to suggest that the material to be used during maintenance such as tube light, bulbs etc. used to be supplied from the government store."; In contrast to this, the plaintiff / PW-2, in his cross- examination, done on 02.08.2016, at the end of the last paragraph, has stated as under :-CS No. 864/2016
Sh. Yamuna Singh v. GNCT of Delhi & Ors.DOD : 24.12.2024 Page No.18 of 28
"...It is correct that in the bills I have not mentioned as to what material I had used. I have only charged the labour charges as the material was provided by the DD (East Building)."; It is apparent that both depositions cannot go together, as one is contrary to the other. The PW-4 is an Office Superintendent. He cannot be allowed any concession even remotely to mistake the exact position of the material and its source, to be obtained or supplied from and its status, also procedure applicable, in this regard, in his office. At the same time, PW-2 has also claimed to have been working for and with the department since 2008-2009, then, the question arises as to why this kind of apparent contradictory deposition/(s), in the cross-examination/(s), both the witnesses, emerge and are available. The obvious reply is that either of the witnesses is deposing incorrectly or even both.
The PW-4, in this context, appears to be a motivated witness for the total contradictory stands taken by him as well as the plaintiff with regard to the supply of the consumables or the material to be supplied/outsourced from the store. However, even on this score, plaintiff has no moral right to deviate from the letter, dated 03.04.2012, Ex.PW2/B, issued from the Office of PW-4 and then, claim undue harassment, while simultaneously getting the PW-4 deposing in his favour and supporting his case all along and here by the same brush/stroke, both the PW-2 and PW-4, have become witnesses incapable of any legal credibility/trustworthiness and they are therefore, not the witnesses of truth and as such, their entire testimonies for these reasons stand demolished and I, therefore, discard their testimonies altogether, as biased and motivated, respectively.
13. PW-5 Smt. Laxmi Awasthi, Assistant Commissioner, GST, ITO, CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.19 of 28Delhi, is also, possibly, one of the best witnesses, available to the plaintiff and she was working as Assistant Director-Education, District East, during the relevant period, but the witness has not been able to deposed categorically, in favour of the plaintiff, except to have volunteered to say that the Vendor used to follow all the procedure, which obviously, is not the case, though, the witness has denied a suggestion as wrong that since the plaintiff had not submitted the verification report along with the bills in respect of the work done by him pursuant to the work orders, therefore, his bills have not been passed and there is also denial of a suggestion as wrong that the plaintiff never followed the given procedure even though, she is not aware further as to why the payment of the plaintiff was withheld and has volunteered to state, again, that he had given the best services to the department, however, she further volunteers to say that she had made oral instructions for releasing the payment of the plaintiff and now, it becomes clear to me that the procedure mentioned in Ex.PW2/B was not complied in letter and spirit as was the practice/understanding being adopted during the relevant time by the Vendors/officials of the department as they were going on with the cozy relationship, and one side was scratching the back of other side but the plaintiff cannot take any advantage on this account for the reason that he was working with the government department and it was, primarily, his duty to get the work verified in accordance with the procedure, strictly and thereafter, submit the bills accordingly. Even, he has not shown or established on record that he had informed the change of his working place / address to the department for the reasons best known to him and he has filed his current address in the Address Form, while filing the suit. DW-1 has asserted that the plaintiff kept CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.20 of 28his address changing, which is quite apparent with no denial or cross- examination of the DW-1 on this point. The perusal of Mark-A and Mark-B show that concerned register was not traceable and no such bill during the 2012-2013 was received in the office. Further, perusal of the record shows that twelve bills in original, raised by the plaintiff, Ex.PW2/C1 to C6 & C8 to C13, were submitted to the department concerned by the plaintiff, which were duly endorsed and given number thereof with dates and some of the bills were marked by PW-4 to the concerned dealing hand for verification of the work and the said bills were placed on record by the defendants, themselves. It, therefore, clearly, appears that the work register was enjoined to be maintained by the concerned department, however, the said register had not been produced/placed on record by the defendant for the reasons best known to them. It, also, appears that the bills were submitted by the plaintiff with the defendant, however, it is not known to the Court as to whether same were verified or not, because work verification register has not been produced on record to cross-check this fact and in the absence of non-production of the work register by the defendant, it cannot be said the bills were verified or not and it is not understandable to this Court, as to why the said register could not be produced before the Court and the reason in this regard is inexplicable, on behalf of the defendants and as such, the testimony of PW-5 does not appear to be supportive of the case of the plaintiff, as she had not answered the questions, put to her, during her cross-examination, specifically and categorically, nor, she has been able to depose categorically, if, the work was duly verified, in the present case, though, she has corroborated the case of the plaintiff generally and thus, her testimony also is of no avail to the plaintiff or his case.
CS No. 864/2016Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.21 of 2814. There is testimony of PW-3 Dr. Saroj Bala Sain, Regional Director, (East), Directorate of Education, GNCT, Rani Garden, Geeta Colony, Delhi, who has produced the summoned record in respect of RTI reply, given by her on the basis of the records, made available, by the Office of Directorate of Education, working as Deputy Director, (East/PIO), at the relevant time. This PW has, clearly, deposed against the entire case of the plaintiff, as laid on, in the present suit. There is Ex.PW2/B, which is a letter, dated 03.04.2012, by the PW-4, issued to the address of the plaintiff, i.e., 488/4, Opposite M.C.Primary School, Dilshad Garden, Delhi and paragraph No.2, thereof reads as under :-
"...You are hereby directed to take up the maintenance work of the above mentioned buildings, as and when the demand arises there and get the work verified in the work register from the concerned Branch/office. The bills be raised on each work basis along with the copy of the work verification register..."; This makes it clear that each and every work has to be verified from the concerned branch / office, where the work has been carried on. Further, the bills are to be raised along with the copy of the work verification register and this follows the conclusion that work verification register is being maintained by the department / defendant, though, the work is to be verified on the basis of the bills, raised for each work by the person carrying out it or on whose behalf the work is contracted to be carried out, has to raise/submit the bill along with the copy of the work verification register, apparently, after verification from the concerned branch/office.
Ms. Panwar and Sh. Sharma have, equally, laid on their emphasis on the original bills, but for the different effects, on the one hand, Ms. Panwar submits that some of the bills bear the signature of PW-4, while referring to it to the concerned branch for verification and some of them, CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.DOD : 24.12.2024 Page No.22 of 28
though, may not, yet, were submitted and they were duly verified. She also submits that the Contractors, carrying out the departmental work, are totally at the mercy of the department and its official concerned and they should not be made to run from the pillar to post for the payments due to them for doing their legitimate business activities and services rendered to the department for not acceeding to undue / illegitimate requests made by the officials concerned for passing the bills, at the same time, Sh. Sharma submits that it is the PW-4, only, who issued the letter to the plaintiff and therefore, the plaintiff as well as the PW-4 were very much aware about the requirement for passing the bills and in this context, my attention is drawn to the copy of the office note, dated 28.03.2013, i.e., Ex.DW1/3, copy, whereof, has been filed as part of RTI reply and the last paragraph of the office note states about seeking clarification from the Vendor, i.e., Plaintiff / M/s. Aakash Refrigeration, also, there are two envelopes, bearing the same address/(s), of the addressee, i.e., 488/4, Opposite M.C.Primery School, Dilshad Garden, Delhi-110095 and one can note that, though, Ex.PW2/B does not mention pin code, but these two envelopes do mention even pin code also. Its bearing address is not the same as mentioned by the plaintiff in the head of the plaint and they both are different addresses. Similarly, this different address, as appearing in the head of the plaint has been mentioned in his affidavit, also, filed in the Court and also in the application, made for obtaining information through RTI and also receiving the information in response to his applications.
15. The reply, submitted to the RTI applications, made by the plaintiff, vide response, dated 18.02.2015, is quite evasive. However, the response, made in the First Appeal, is quite different therefrom and the material responses, differently made, is in Column No.5 of the reply CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.23 of 28where it states that no bills during the year 2012-2013 were received by the Office and it again, reiterates that the work register was not traceable in the 'Office'. However, it differs from the response made in the amended reply in material terms that no bills were received from the Office during the year 2012-2013, in Column No.2, of the reply, which is part of Mark-B, (collectively, 4 pages). A careful analysis of the entire RTI reply makes it clear to me that the same has been manipulated at one level or the other for the reasons that the defendants, now, have chosen to submit the original bills in the Court on 05.02.2016 only and they were neither maintaining the work register properly nor getting the work verified, and rather, leaving everything to the official concerned to take a selective view of the things, at every occasion, in keeping with their convenience and discretion and viewed in this juxtaposition here, the testimony of PW-3 becomes quite relevant and believable, when she deposes in her cross- examination that the plaintiff had not submitted the copy of work order and work verification done by him, therefore, his bills have not been paid till date, as the department is unable to verify whether the work has been done by the plaintiff or not, in respect of the bills claimed by the plaintiff and at the same time, this also goes to reinforce the conclusion that the Department was not in the habit of maintaining any work register properly and was in the practice of resorting to adhocism, in this regard, depending on their discretion, convenience, whims, caprice and pick & choose policy and for this reason, the work register has never been traced, as its production would have resulted in revealing/exploring all these irregular practices, inasmuch as, if the register was genuinely misplaced, then the Department ought to have lodged atleast a Non-Cognizable Report of missing/misplacing the CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.24 of 28work register and also would have had gone to fix responsibilities for such loss departmentaly. The material contradictions in the RTI replies, first from the level of PIO and then from the Appellate authority, is also for the same reasons, as the information provided, in this regard, was, clearly, compromised and manipulated, as already noted.
16. Now, piecing together valiantly, from the questions, put before the DW1, i.e., Dr. Davindera, in response to the confrontation of the witness with Ex.DW1/1 and the question, reading as under :-
Que. Whether Ex.DW1/1 contains the procedure for filing bills with the department ? and further question, reading as under :-
Que. Whether the bills needs to be verified as per Ex.DW1/1 or submission of work register ? and the replies, of the witness, as to first question, to the following effects, "In the letter we have sought only clarification of the rates and not the procedure"; And, "It is correct that there is no mention of verification of bills and submission of work register"; And further suggestions that the bills of the plaintiff are correct and as per the procedure and again, that the department has intentionally not processed and not cleared the payment of the plaintiff, as plaintiff, not fulfilling their illegal demands and there is entitlement of the plaintiff for payment of the bills, submitted by him and if, the witness was deposing falsely. There are clear and stout denials, made by the DW1 of all these suggestions and mounting her most ferocious and valuable arguments, Ms. Panwar, vociferously contends that it is the department, which alone has submitted the original bills before this Court and further the department/witness/DW1, has, already, admitted receipt of notice U/s 80, CPC, though, denied in the written statement and thereafter, various contradictory informations, being manipulated, in different RTI replies, CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.DOD : 24.12.2024 Page No.25 of 28
amply, make it clear that the only reason for denial, is non-supply of illegal gratification to the personnel concerned. Ms. Panwar, also contends that there was no ifs and but, employed by the department with regard to the bills, submitted, by Anand Industrial Corporation, as evident from the internal notes, dated 28.03.2013, i.e., Ex.DW1/2 and the same exhibit, clearly, shows that the department, in its pick and choose policy, went to seek clarification with regard to the amount of Rs.2,60,000/- towards the bills raised by the present plaintiff but not towards the bills of other Vendor, i.e., Anand Industrial Corporation, which was also on the same footing and almost for similar amounts. Ms. Panwar, further, boosts up her challenge, while seeking drawal of an adverse presumption against the department under Section 114 (g), of The Indian Evidence Act, 1872, to contend that it was the responsibility of the department to maintain and produce the work register and if the same was not produced by the department, then, the plaintiff is entitled for the benefit to the effects that if the same were produced, then, it would have gone against the department only. She further, heavily, relies on, the testimony of PW-5 Smt. Laxmi Awasthi, Assistant Commissioner, GST, ITO, Delhi, to contend that when the witness has deposed and testified, favourably, in favour of the plaintiff, then, there remains nothing to doubt about the work done and veracity of the bills, raised and submitted by the plaintiff, in this regard.
17. I have carefully, analyzed and considered the whole import of the arguments and it appears that the tone / tenor and demeanor of the testimony of PW-5 is not affirming in its nature, demonstratively, rather, it is suggestive and the witness, herself, has never been able to depose categorically, in favour of the case of the plaintiff, though, she has made an effort for speaking good things about the plaintiff and his CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.26 of 28work, in her entire testimony, which I have not found quite supportive, to the case of the plaintiff.
18. As far as, drawing of adverse presumption, as above, is concerned, there is no need to draw such a presumption in the matter, for the reasons, first, that the departmental witnesses have deposed in an unusual fashion and further, the whole truth, has already emerged from the careful examination/analysis of the evidence, led in, on record and categorically to the effect that the work register was not being maintained by the department to further its pick and choose policy and also to either deny or accept, selectively a particular obligation, falling on its part, for no other reason, except to manipulate the things in a given case to advance their ulterior motives, whenever, they desired so, and viewed in this scenario and in juxtaposition, the arguments, put forward by Ms. Panwar, clearly, appear to be, impregnable, as far as, their weight and logic, is concerned. However, two wrongs cannot go to make one right and it is true that the public departments, more often than not, are riddled with the malaise of corruption, at most of the places and in almost all walks of life, but neither the majesty of law, nor the Court, can go to condone this malaise in any form whatsoever and not even on the ground of parity. Further, such an argument cannot be countenanced on account of its inherent immorality, internalized with it. Further, if the Court goes to allow parity with regard to the practices opposed to public policy, then, the same will not be a lawful consideration and therefore, an unlawful object, and as such, I find myself unable to agree with the arguments, raised by Ms. Panwar, in her written submissions, though, it is clear to me that the bills were raised and certain work might have had been done by the present plaintiff for the defendants, which/who have/had not been maintaining CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors.
DOD : 24.12.2024 Page No.27 of 28the work register, as per the procedure laid down by the department in Ex.PW2/B, but the plaintiff cannot succeed, to prove this issue, in his favour, on this account, as it was his duty to deal with the government department only, in terms of the rules and procedure and not in terms of whims and fancy of a particular official at a particular time and as such, I am of the view that the plaintiff has failed to discharge the burden of proof placed upon him in respect of the issue No.1 and as such, it is held that the bills raised by the plaintiff have not been duly verified by the official of the department concerned and thus, this issue is decided in favour of the defendants and against the plaintiff.
Findings on issue No.2
19. This is an issue, to the effect, as to, "If the issue No.1 is decided in favour of the plaintiff, then whether the plaintiff is entitled to recovery of suit amount along with interest and cost, as prayed ? OPP" and onus to prove this issue was on the plaintiff and in view of my findings, just returned on issue No.1, as above, this issue is also decided against the plaintiff and in favour of the defendants.
Findings on issue No.3
20. Relief : This is an issue, of relief, and in view of my findings, just returned, on the issues No.1&2, as above, the suit of the plaintiff stands dismissed with no order as to costs. Decree sheet be prepared, accordingly. File be consigned to Record Room.
Digitally signed by SANATAN SANATAN PRASAD Announced in the open PRASAD Date: 2024.12.24 15:00:52 +0530 Court on 24.12.2024. ( Sanatan Prasad ) District Judge-02 (East)/KKD/Delhi. CS No. 864/2016 Sh. Yamuna Singh v. GNCT of Delhi & Ors. DOD : 24.12.2024 Page No.28 of 28