Delhi District Court
Sh. Brij Mohan vs Vice Chairman on 21 October, 2021
IN THE COURT OF SH. RAJINDER KUMAR
ADDITIONAL DISTRICT JUDGE2: ROHINI COURTS: DELHI
CS DJ No.75485/16
1. Sh. Brij Mohan
Proprietor of M/s S. R. Builders,
Having its Regd. Office at 13,
Alipur, Delhi - 110036.
......Plaintiff
Vs.
1. Vice Chairman
Delhi Development Authority,
INA, Vikas Sadan,
New Delhi.
2. Superintendent Engineer
Civil Circle12,
Ashok Vihar, PhaseI,
Delhi.
3. Executive Engineer,
Northern DivisionII,
Ashok Vihar, PhaseI,
Delhi.
.....Defendants
Date of Institution : 21.08.2010
Date of Reserving Order : 07.10 & 18.10.21
Date of Judgment : 21.10.2021
Brij Mohan Vs. Vice Chairman & Ors. Page no. 1 of 14
CS DJ No. 75485/16
JUDGMENT :
1. This is a suit for recovery of Rs.5,96,220/ alongwith interest @ 24 % per annum from 08.05.2007 till realization of the case, filed by the plaintiff against the defendants.
2. Brief facts of the case as per the plaintiff are that he is the proprietor of M/s S.R. Builders and engaged in the business of Govt. Contractor & Builders. That in 2007, the defendant no.3 invited Public Tender to complete development of Land. That the tender of the plaintiff was awarded vide Letter dated 01.03.2007 and Award Letter was issued to the plaintiff. That thereafter, an Agreement was executed between the plaintiff and defendant no.3. That after deposition of 5% share of performance guarantee, the plaintiff start performing of contract work at site on 13.03.2007. That at every step and stage, the work of the plaintiff was found satisfactory and upto quality mark. That on 08.05.2007, the assigned tender work was completed within the prescribed time and the completion certificate was presented before the O/o defendant no.2 and the same was also signed by the defendant no.3 and other officers and the same Brij Mohan Vs. Vice Chairman & Ors. Page no. 2 of 14 CS DJ No. 75485/16 was recorded in the measurement Book No.08408. That the other formalities were completed by the other competent Authorities and thereafter, the performance guarantee i.e. 5% of the tendered amount was released by the defendant no.3 in favour of the plaintiff. That after approval of the completion certificate, the officers of defendants duly took the measurement of the work done and found the same complete and satisfactory. That total bill amount of Rs.5,96,220/ was prepared by the J.E. and A.E but the defendant no.2 & 3 kept on delaying the release of the amount despite writing of letter dated 08.11.2007, 02.06.2009 and 19.06.2009 by the plaintiff. That the plaintiff also sent Legal Notice dated 28.01.2010 and a notice U/s 80 CPC dated 26.04.2010 but despite service, the defendants did not make any payment to the plaintiff. That the notice dated 26.04.2010 was replied vide reply dated 04.06.2010.
3. In the W/S of defendants, certain preliminary objections were taken like that the plaintiff has come to Court with unclean hands and has suppressed the material facts and also that the suit was without any cause of action.
Brij Mohan Vs. Vice Chairman & Ors. Page no. 3 of 14 CS DJ No. 75485/16
4. In the replication / rejoinder, plaintiff has denied the case of the defendants and reiterated his own case as stated in the plaint.
5. On the basis of pleadings of the parties, the following issued were framed in this case on 06.12.2010, as under :
1. Whether the plaintiff is entitled for decree of recovery of Rs.5,96,220/ as prayed in prayer clause A of the plaint ? OPP
2. Whether the plaintiff is entitled to recover interest @ 24% p.a. w.e.f 08.05.2007 till date of filing of suit ? OPP
3. Whether the plaintiff is entitled to recovery pendentelite and future interest @ 24 % p.a. or at what other rate ? OPD
4. Whether the suit does not disclose cause of action ? OPD.
5. Relief.
6. In support of his case, the plaintiff got examined himself as PW1. The plaintiff also got examined Sh. P. P. Verma, Executive Engineer (Retd.) from DDA as PW2, Sh. Dharamveer Vats as PW3, Sh. Mahender Singh as PW4 in this case. PE was closed on 13.11.2017.
Brij Mohan Vs. Vice Chairman & Ors. Page no. 4 of 14 CS DJ No. 75485/16 The plaintiff (PW1) during his examinationinchief, relied upon various documents i.e. ExPW1/1 to ExPW1/11 besides the documents Mark A to G.
7. The defendants got examined Sh. Bimal Kumar, Executive Engineer as DW1 in support of their pleadings. DE was closed on 14.01.2019.
8. I perused the judicial file minutely and my issueswise finding is as under.
ISSUE No.4
9. The onus to prove this issue was upon the defendants and is based on the pleadings of the defendants. In para 2 of the P.Os of the W/S filed by the defendants, it is pleaded that there was no cause of action in the present suit.
Law is well settled that while deciding the issue of cause of action, only the averments of the plaint are to be seen and considered. As per the plaintiff, the public tender was awarded in his favour and on 08.05.2007, the assigned tender work was completed by him within the prescribed time period and that the bill amount of Rs.5,96,220/ was prepared by the J.E and A.E of the defendants but the amount was not released to him despite sending of several letters and notices.
Brij Mohan Vs. Vice Chairman & Ors. Page no. 5 of 14 CS DJ No. 75485/16 So, on the basis of the pleadings of the plaintiff, the suit is found to be with a valid cause of action. The issue is accordingly decided against the defendants and in favour of the plaintiff.
ISSUES No.1 to 3.
10. All these issues are taken up together as, to the considered opinion of this court, all these issues appear to be interconnected and can be decided by the same reasoning. The onus to prove these issues was upon the plaintiff.
It is the plea of the plaintiff that in 2007, the defendant no.3 invited Public Tender to complete development of Land and the tender of the plaintiff was awarded vide Letter dated 01.03.2007 and Award Letter was issued to the plaintiff. That thereafter, an Agreement was executed between the plaintiff and defendant no.3. That after deposition of 5% share of performance guarantee, the plaintiff started the work at site on 13.03.2007 and on 08.05.2007, he completed the assigned work well before the prescribed time. That the work of the plaintiff was found satisfactory and upto quality mark. That the completion certificate was presented before the O/o defendant no.2. That total bill amount of Rs.5,96,220/ was prepared by the J.E. and Brij Mohan Vs. Vice Chairman & Ors. Page no. 6 of 14 CS DJ No. 75485/16 A.E but the defendant no.2 & 3 did not release the amount despite writing of several letters and notices.
It is the plea of the defendants that the plaintiff has not come to the court with clean hands and has suppressed material facts. It is also pleaded that the work has not been carried out at the site by the plaintiff. That a complaint was received from the area MLA about the nonexecution of the work vide letter dated 15.05.2010. It is also pleaded that as the work at the site was never executed, there was no question of any payment. That in the letter dated 20.11.2009, the A.E has directed the plaintiff to get the measurements verified from the site but the plaintiff failed to get it verified. That even, the plaintiff did not submit the final bill. That the plaintiff was called a number of times through field staff / A.E but the plaintiff never turned up.
11. In his examinationinchief, the plaintiff (PW1) reaffirmed and re iterated the contents of the plaint. Nothing material came out of his crossexamination to support the defence of the defendants. Sh. Bimal Kumar (DW1), during his examinationinchief, reaffirmed the pleadings of the defendants but while under crossexamination, it was admitted to be correct by him (at page no.1) that as a matter of Brij Mohan Vs. Vice Chairman & Ors. Page no. 7 of 14 CS DJ No. 75485/16 practice, J.E and A.E visits the site before project is completed and also prepares notes including the extent of the work done. It was also deposed by him that after the completion of the project and the inspection of the site by J.E, the completion certificate is then issued and signed by the Executive Engineer, A.E and J.E. It is also admitted to be correct by him that after the issuance of the completion certificate, performance guarantee is then released by the Department. It was also deposed by the witness (at page no.2) that the Letters Ex PW1/4 and ExPW1/5 were also lying on the records of the defendants i.e. DDA. It becomes pertinent to mention here that the said documents i.e. ExPW1/4 and ExPW1/5 are nothing but the Letters dated 02.06.2009 and 19.06.2009 respectively, both sent by the plaintiff to the Executive Engineer, DDA / defendants.
During his crossexamination (at page No.2), it was also admitted to be correct by Sh. Bimal Kumar (DW1) that before the Letter dated 20.11.2009, DDA has not called the plaintiff by any means for the measurement of the work done. It was also admitted to be correct by him that other than not releasing the dues, no other legal action was Brij Mohan Vs. Vice Chairman & Ors. Page no. 8 of 14 CS DJ No. 75485/16 taken against the plaintiff for the noncompletion of the work as per specifications.
For the sake of arguments, if the contents of the W/S filed by the defendants are presumed to be correct, the same contains several material contradictions. In para 3 (parawise reply of the W/S), it is pleaded by the defendants that the work has not been carried out by the plaintiff. In para 4 (parawise reply of the W/S), it is pleaded that as the work at site was never executed, hence, there was no question of any payment. In para 5 (parawise reply of the W/S), it is pleaded that the complete work was never executed at the site. Again, in para no.7 (parawise reply of the W/S), it is pleaded by the defendants that it was found that the complete work has not been executed at the site.
12. In Para no.7 (parawise reply of the W/S), it is pleaded by the defendants that the plaintiff did not submit the final bill as required under Clause 7 of the Agreement.
During his crossexamination, the plaintiff (PW1) has deposed (at page no.1) that the final bill was made after the completion of tender work was prepared in the presence of J.E, A.E and Contractor and the same was submitted before the office of DDA. It was also deposed that Brij Mohan Vs. Vice Chairman & Ors. Page no. 9 of 14 CS DJ No. 75485/16 the completion certificate Mark D was issued by the Executive Engineer after the inspection of the tender / work site.
During his further crossexamination, the plaintiff (PW1) has admitted (at page no.2) that 5% i.e. Rs.20,000/ performance guarantee was released on the completion certificate. During his cross examination, Sh. Bimal Kumar (DW1) has admitted to be correct that after issuance of the completion certificate, performance guarantee is then released by the Department.
For the sake of arguments, if the contention of the defendants that the work of the plaintiff was defective or incomplete is admitted to be correct, there is nothing brought on record by the defendants as to why no Letter in writing / notice was sent to the plaintiff in this regard. Moreover, it is the admitted case of the defendants as clearly admitted by Sh. Bimal Kumar (DW1) that the Letter dated 02.06.2009 (Ex PW1/4) and Letter dated 19.06.2009 (ExPW1/5) were lying on the records of the defendants / DDA. There is nothing on record as to why the said Letters of the plaintiff were not duly replied by the defendants. The reasons are best known to the defendants themselves. Brij Mohan Vs. Vice Chairman & Ors. Page no. 10 of 14 CS DJ No. 75485/16 The sole witness of the defendants i.e. Sh. Bimal Kumar (DW1), during his crossexamination has deposed that he had seen the entire record of the contract in question and that the file of the contract lying in the office comprises of work completion certificate and final bill prepared by the DDA.
13. The plaintiff has claimed a sum of Rs.5,96,220/ alongwith interest in this case. It is interesting to note down here that the amount pleaded by the plaintiff is nowhere disputed by the defendants in their W/S. In para 7 of the plaint, it is clearly pleaded that a total bill amount of Rs.5,96,220/ was prepared by the J.E and A.E, working under the authority of defendants in regard to the work order carried out by the plaintiff as per the award letter. In the corresponding para of the W/S, these pleadings are not denied by the defendants for the reasons best known to them. It is, however, pleaded by the defendants (in para 7 of the W/S, parawise reply) that the claim of the plaintiff for the final bill amounting to Rs.5,96,220/ was arbitrary without any base. As per the W/S, the defendants themselves are not sure whether any work was carried out or no work was ever executed or that it was the incomplete work carried out by the plaintiff at the site. The defendants also did not Brij Mohan Vs. Vice Chairman & Ors. Page no. 11 of 14 CS DJ No. 75485/16 bother to reply to the letters (ExPW1/4 and PW1/5) sent to them by the plaintiff, when admittedly the same were lying in the files of the defendants / DDA.
14. In para 10 of the plaint, it is pleaded by the plaintiff that he has sent a legal notice dated 28.01.2010 to the defendants requesting for the release of the bill amount of Rs.5,96,220/ as well as security with interest and that the said notice was duly served upon the defendants. In the corresponding para of the W/S, the said pleadings of the plaintiff was neither admitted nor denied. It is however, pleaded by the defendants that the claim amount was hypothetical, arbitrary and bogus as the work was never executed at the site. Nothing is pleaded by the defendants as to how the claim amount of the plaintiff was hypothetical, arbitrary and bogus. The defendants have replied to the second legal notice dated 26.04.2010 vide reply dated 04.06.2010 (Ex PW1/11), clearly admitting that they have received the first notice dated 28.01.2010 but the said first notice was never replied by defendants for the reasons best known to them. After the consideration of the evidence of Sh. Bimal Kumar (DW1), it is the admitted fact that no Brij Mohan Vs. Vice Chairman & Ors. Page no. 12 of 14 CS DJ No. 75485/16 order action was taken by the defendants against the plaintiff except the nonrelease of the dues, which makes the defence of the defendants doubtful.
15. Hence, on the basis of the pleadings and the evidence lead by the parties and the documents available on record, the court has no hesitation in holding that the plaintiff has proved the Issue No.1.
The plaintiff has though claimed interest @ 24% p.a. till the realization but the said rate of interest is exorbitant. It is no more res integra that grant of interest, both pendentelite and future is in the discretion of the court. Keeping in view the facts and circumstances as well as the prevalent rate of interest in the Banks, it is ordered that the plaintiff shall be entitled to simple interest on the decreetal amount @ 8 % p.a. The Issue no.1 to 3 are decided accordingly in favour of the plaintiff and against the defendants.
ISSUE NO.5 Relief.
16. In view of the findings of this court on the issues No.1 to 4 to the above effect, the plaintiff is found entitled to a decree for a sum of Brij Mohan Vs. Vice Chairman & Ors. Page no. 13 of 14 CS DJ No. 75485/16 Rs.5,96,220/ alongwith interest @ 8 % p.a. from the date of filing of the suit till its realization. No order as to costs.
A decreesheet be prepared accordingly as per rules. Announced in the Open Court on 21st October, 2021.
(RAJINDER KUMAR) Additional District JudgeII (NorthWest) Rohini Courts: Delhi Brij Mohan Vs. Vice Chairman & Ors. Page no. 14 of 14 CS DJ No. 75485/16