Delhi District Court
Sh. Shishpal vs ) North Delhi Municipal Corporation on 31 August, 2016
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
CS14630/2016
Sh. Shishpal,
Sole Proprietor of
M/s S.P. Enterprises,
H. No. 134, Gopal Nagar, Najafgarh,
New Delhi110043.
.......Plaintiff
VERSUS
1) North Delhi Municipal Corporation,
through its Commissioner,
4th Floor, Civic Centre, Minto Road,
New Delhi110001.
2) The Executive EngineerMIV,
North Delhi Municipal Corporation,
Shakti Nagar Extension,
Near Kakaji Lane,
Delhi110052.
....... Defendants
CS14630/2016
Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 1 of 13
Date of institution of suit : 31.03.2016
Arguments heard on : 09.08.2016
Date of decision : 31.08.2016
ON APPLICATION U/O XII R 6 READ WITH SECTION 151 OF
THE CODE OF CIVIL PROCEDURE
JUDGMENT
1. An application under Order XII Rule 6 read with Section 151 of The Code of Civil Procedure (in short CPC), dated 04.08.2016 was filed by plaintiff on 09.08.2016 and its advance copy was already supplied to Ld. Counsel for defendants on 05.08.2016.
2. I have heard Ld. Counsels for the parties, perused the record including the aforesaid application under consideration, its reply and other material on record.
3. Contractor plaintiff filed suit for recovery of Rs. 55,91,301/ with interest from defendants. Plaintiff averred to have been awarded works, detailed as under : CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 2 of 13 Sl. Work Work Order & Date Contractual Time of No. Amount in Rs. completion 1 Imp. Dev. front lane EE(CLZMIV)/SYS/ 16,66,348/ 3 Months by pdg. RMC from H. 20132014/522, No. B3/46 to B3/64 dated 05.03.2014 in B3 Block Ashok Vihar PhII in Ward No. 66 Sawan Park/CLZ 2 Imp. Dev. of lane from EE(CLZMIV)/SYS/ 9,04,330/ 4 Months H. No. 93 to 107, 109 20142015/202, to 123 and back lane dated 19.12.2014 from 25 to 39, 161 to 175 and 1 to 11 by pdg. RMC in Nimri Colony at C65/CLZ 3 Imp. Dev. of lane from EE(CLZMIV)/SYS/ 9,99,700/ 4 Months H. No. 297 to 311, 313 20142015/208, to 323 and back lane dated 19.12.2014 from H. No. 273 to 283, 257 to 271, 245 to 255, 369 o 383 in Nimri Colony at C65/CLZ 4 Construction of EE(CLZMIV)/SYS/ 13,84,274/ 4 Months boundary wall of park 20132014/436, near sewage treatment dated 28.02.2014 plant in CBlock, Wazirpur Industrial Area in C68/CLZ 5 Imp. Dev. of lane by EE(CLZMIV)/SYS/ 5,97,031/ 3 Months pdg. RMC from Gali 20142015/83, CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 3 of 13 Sl. Work Work Order & Date Contractual Time of No. Amount in Rs. completion No. 103 from H. No. dated 24.11.2014 1461 to 1468 in Ganeshpura in C 61/CLZ in Tri Nagar 6 Imp. Dev. of road EE(CLZMIV)/SYS/ 7,04,579/ 3 Months berm and drainage 20142015/313, system from G1130 dated 09.01.2015 to G755 in Shakurpur JJ Colony at Ward No. 64/CLZ 7 Imp. Dev. of lane by EE(CLZMIV)/SYS/ 6,81,450/ 3 Months pdg. RMC in 20142015/194, Shakurpur village dated 19.12.2014 from Culvert to transformer (near mother dairy) at Ward No. 62/CLZ Plaintiff submitted that he completed the said work orders within the prescribed period to the satisfaction of Engineerin Charge/Defendant no2. Security amount of Rs. 5,53,118/ was also deposited by plaintiff at the time of submission of tender by plaintiff. After completion of work by the plaintiff, the defendant prepared first and final bills of plaintiff for net payable amount after deducting security amount, detailed as under : CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 4 of 13 Sl. No. Work Date of passing Net Amount in Security Order No. Rupees Amount in Rupees 1 522 30.05.2015 13,45,705/ 1,63,675/ 2 202 30.04.2015 7,45,603/ 90,433/ 3 208 06.05.2015 8,45,113/ 69,420/ 4 436 14.08.2015 1,53,861/ 19,287/ 5 83 18.05.2015 4,93,567/ 59,703/ 6 313 28.08.2015 5,82,310/ 72,376/ 7 194 14.12.2015 5,55,536/ 78,224/ Total : 47,21,695/ 5,53,118/
4. In the filed written statement afore elicited facts i.e. (i) award of works vide stated work orders; (ii) completion of works; and (iii) issuance of bills aforesaid are the relevant material facts, which have been admitted by the defendants.
5. Defendants interalia put forth in defence that suit was premature as agreement interse parties had specific condition that payment of bill will depend on availability of funds in particular head of account from time to time in North DMC. In terms of amended General Terms and conditions of tender documents, the payment of bills shall be CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 5 of 13 made strictly on the 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 Head Quarter under particular head of account. Accordingly, delay in making the payment did not attract any liability and the plaintiff was not entitled to interest on account of delay in payment as per the amended rules incorporated by circular, which had been gone through by plaintiff who had participated in the tender and executed the work. Also is the defence of defendants that the security amount can only be paid after payment of the final bill, that too when the Contractor applies for refund of security amount and make necessary formalities in this regard including submission of the Clearance Certificate from the Labour Officer as per clause 45 of the General Terms and Conditions of the tender documents. Also was stated that the security deposited shall not be refunded before expiry of one year from the date of completion of the work as per clause17 of the General Terms and Conditions of the tender documents. It is also the averment of defendants that the bills of net payable amount to plaintiff were sent to the Head Quarter for payment on queue basis vide demand numbers, detailed as under, whereas for work orders no. 522 and 202 the payments were released through RTGS while for other work orders payments will be released by the Head CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 6 of 13 Quarter on availability of funds under the particular head of account : Sl. No. Work Order no. Net Amount in Rupees Demand No. & Date 1 522 13,45,705/ Payment made through RTGS, dated 31.03.2016 and 13.07.2016 2 202 7,45,603/ Payment made through RTGS, dated 13.07.2016 3 208 8,45,113/ No demand 4 436 1,53,861/ Nil 5 83 4,93,567/ 112, dated 18.01.2016 6 313 5,82,310/ 117, dated 18.01.2016 7 194 5,55,536/ 134, dated 17.02.2016 Total : 47,21,695/
6. In the application under Order XII Rule 6 CPC read with Section 151 CPC, the plaintiff had averred that full payment in respect of work order no. 522 and 202 i.e., (i) Rs. 13,45,705; and (ii) Rs.7,45,603/ was made through RTGS dated 31.03.2016 and 13.07.2016 by the defendants after filing of the present suit. Similarly, in the written statement afore elicited facts of payment by defendants to plaintiff have been averred. Aforesaid payments were made by the defendants to the CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 7 of 13 plaintiff in the pendency of the suit.
7. Defendants filed reply to the application of plaintiff under Order XII Rule 6 read with Section 151 CPC and controverted the contentions of the application and reiterated the averments of the written statement.
8. Applicant/plaintiff through Counsel prayed for judgment on admissions stating that a policy decision cannot entitle defendants to either not make payment or delay payment after admitting its obligation to make the payment.
9. Order XII Rule 6 of CPC reads as under : "ORDER XII ADMISSIONS
6. Judgment on admissions - (1) Where admissions of fact have been made either in the pleadings 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, CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 8 of 13 having regard to such admissions.
(2) Whenever a judgment is pronounced under sub rule (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."
10. Section 58 of The Indian Evidence Act reads as under : "58. Facts admitted need not be proved. No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleadings in force at the time they are deemed to have admitted by their pleadings.
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
11. In the case of Vijaya Myne Vs. Satya Bhushan Kaura, 142 (2007) DLT 483 (DB), Hon'ble Mr. Justice A.K. Sikri summarized the legal position for the purpose and objective in enacting provision under Order XII Rule 6 CPC holding that : "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 CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 9 of 13 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."
12. (A) Awarded works in question vide elicited work orders; (B) completion of works; (C) preparation of elicited bills of plaintiff by defendants; (D) sending of such bills of plaintiff to the Head Quarter for payment are those relevant and material facts, which have been admitted candidly by defendants in clear, unambiguous, unqualified, unconditional and unequivocal terms.
CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 10 of 13
13. The afore elicited admission of relevant and material facts have been categorical, conscious and deliberate act of defendant showing an intention to be bound by it. In the cases of Jagbir Singh Sharma Vs. MCD & Ors. in CS (OS) 1797/2007; Sh. Ramkesh, sole proprietor of M/s Ramkesh Vs. MCD & Ors. in CS (OS) 1805/2007 and M/s Balaji Construction Company Vs. MCD & Ors., in CS (OS) 1806/2007; vide order dated 15.07.2008, Hon'ble Mr. Justice Sanjiv Khanna of our own High Court held that : "Once the defendantMCD admits its obligation to make the payment, the said payment has to be arranged for and budgeted for by them. The plaintiffs have no role to play in the said exercise. How the defendant manages their internal affairs is their own business."
It was also held therein that : "Section 46 of the Indian Contract Act, 1872 stipulates that where no time limit is specified, the engagement must be performed within a reasonable time"
Similar plea of defendant therein for making payments to CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 11 of 13 said contractor as per their policy on "first in first out" (principle of FIFO in accountancy) was held to be lacking merits and premise and shorn of merits to grant leave to defend in summary suit.
14. Elicited facts of the matter in hand are clear pointers of passing of reasonable time after completion of the work in question by plaintiff, preparation of the bills in question by defendant Corporation and consequential nonpayment till date by defendant Corporation to clear outstanding liability payable to plaintiff with respect to the bills totaling Rs. 26,30,387/. Under the garb of covenant in Clause 9 of amended General Terms & Conditions with regards to payment of bills on queue basis as per 'FIFO', the defendants cannot be permitted to evade the admitted liability by either delaying it beyond reasonable time or making it barred by limitation. Even otherwise, bald assertion of existence of queue of bills for works is not supported by any documentary evidence since no list of pending bills has been filed by defendant depicting the position therein of the bill of plaintiff in question for the work (s) done. Accordingly, such bald assertion of defendants per se is to postpone liability of admitted debt of defendants payable to plaintiff.
CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 12 of 13
15. Since the outstanding payment of amount of bills totaling Rs.26,30,387/ [Rs. 47,21,695.00 (Rs. 13,45,705.00 + Rs. 7,45,603.00)] stands admitted in unequivocal, unambiguous, unqualified terms by defendants in favour of plaintiff, so far that is concerned, the plaintiff is entitled for judgment on admissions. Plaintiff is held entitled for recovery of sum of Rs. 26,30,387/ in his favour and against the defendants under Order XII Rule 6 of CPC. Decree sheet be prepared accordingly.
16. So far as the facets of security amount and component of interest, its period, rate or whether it is payable by defendants to plaintiff are concerned, they are the mixed questions of fact and law, requiring leading of evidence by the parties at the opportune time and shall be adjudicated after adducing of evidence by the parties.
Announced in open Court (GURVINDER PAL SINGH) on 31st Day of August, 2016. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
(AD) CS14630/2016 Sh. Shishpal Vs. North Delhi Municipal Corporation & Anr. Page 13 of 13