Delhi District Court
Sh. Varinderjeet Singh vs North Delhi Municipal Corporation on 14 September, 2016
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
CS11265/2016
Sh. Varinderjeet Singh,
Sole Proprietor of M/s Planup Construction
Through his Power of Attorney Holder
Sh. Pappu Seth,
Office at : 5674/79, Reghar Pura,
Karol Bagh, New Delhi110005.
.......Plaintiff
VERSUS
North Delhi Municipal Corporation,
through its Commissioner,
Civic Centre, Minto Road,
New Delhi.
....... Defendant
Date of institution of suit : 28.01.2016
Arguments heard on : 27.08.2016
Date of decision : 14.09.2016
ON APPLICATION U/O XII R 6 READ WITH SECTION 151
OF THE CODE OF CIVIL PROCEDURE
CS11265/2016
Sh. Varinderjeet Singh Vs. North Delhi Municipal Corporation Page 1 of 11
JUDGMENT
1. An application under Order XII Rule 6 read with Section 151 of The Code of Civil Procedure (in short CPC) was filed by plaintiff on 09.05.2016 and its copy was supplied to defendant counsel.
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. 9,50,860/ with interest from defendant. Plaintiff averred to have been awarded works of (i) Improvement Development of lane by pdg. RMC from H. No. E361 to H. No. E359 in EBlock Double Storey Ramesh Nagar in C98/KBZ [ H. No. E359 in EBlock Double Storey Ramesh Nagar] by pdg. RMC from in Mansarover Garden, vide Work Order No. EE (M KBZ)I[EE I]/SYS/20142015/128, dated 09.10.2014 for contractual amount of Rs. 7,39,273/; and (ii) Improvement Development of lane by pd. RMC from H. No. B170 to B197 in BBlock Mansarover Garden in C98/KBZ [ B197 in BBlock Mansarover Garden] by pdg. RMC from CS11265/2016 Sh. Varinderjeet Singh Vs. North Delhi Municipal Corporation Page 2 of 11 in Mansarover Garden, vide Work Order No. EE (MKBZ)I[EE I]/SYS/20142015/129, dated 09.10.2014 for contractual amount of Rs. 7,52,845/. The time of completion provided in the work orders were 3 months each. Plaintiff submitted that he completed entire work as per satisfaction of the defendant. Security amount of Rs. 27,200/ [(i) Rs. 13,700/; and (ii) Rs. 13500/] was also deposited by plaintiff at the time of submission of tender by plaintiff. After completion of works by the plaintiff, the defendant prepared and passed 1 st RA Bills in favour of plaintiff for sum of (i) Rs. 4,95,823/; and (ii) Rs.4,44,037/, totaling Rs. 9,39,860/ after deducting/withholding Rs. 20,000/ [(i) Rs. 10,000/; and
(ii) Rs. 10,000/] for the reasons known to defendant.
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.
CS11265/2016 Sh. Varinderjeet Singh Vs. North Delhi Municipal Corporation Page 3 of 11
5. Defendant 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 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 defendant that there was no clause for payment of any interest to the plaintiff in the entire tender documents as well as agreement. Also was stated that if the contractor does not prepare and submit the bills, then the EngineerinCharge of MCD will prepare the same and in such an event, the contractor will not be entitled to any claim whatsoever due to delay in payment including that of interest, as per clause7 of the General Terms and Conditions of the tender CS11265/2016 Sh. Varinderjeet Singh Vs. North Delhi Municipal Corporation Page 4 of 11 documents. Plaintiff had not submitted any bill with the defendant and the EngineerinCharge of defendant had himself prepared the first running bills of the plaintiff. Also was stated that the claim of security amount is premature one as the final bills have not yet been raised and the necessary formalities have not been completed by the plaintiff as per Clause45 of the General Terms and Conditions of the tender documents. It is also the averment of defendant that the net payable amount to plaintiff was (i) Rs. 4,95,823/; (ii) Rs. 4,44,037/, totaling Rs. 9,39,860/ for which the first running bills were passed and sent to the Head Quarter for payment on queue basis vide demand no. 127, dated 05.05.2015 and same will be released by the Head Quarter on availability of funds under the particular head of account.
6. Defendant 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.
CS11265/2016 Sh. Varinderjeet Singh Vs. North Delhi Municipal Corporation Page 5 of 11
7. Applicant/plaintiff through Counsel prayed for judgment on admissions stating that a policy decision cannot entitle defendant to either not make payment or delay payment after admitting its obligation to make the payment.
8. 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, 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."
9. 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 CS11265/2016 Sh. Varinderjeet Singh Vs. North Delhi Municipal Corporation Page 6 of 11 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."
10. 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 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 CS11265/2016 Sh. Varinderjeet Singh Vs. North Delhi Municipal Corporation Page 7 of 11 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. (A) Awarded works in question vide elicited work orders; (B) completion of works; (C) preparation of elicited first running bills of plaintiff by defendant; (D) sending of such first running bills of plaintiff to the Head Quarter for payment are those relevant and material facts, which have been admitted candidly by defendant in clear, unambiguous, unqualified, unconditional and unequivocal terms.
12. 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 CS11265/2016 Sh. Varinderjeet Singh Vs. North Delhi Municipal Corporation Page 8 of 11 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 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.
13. 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 CS11265/2016 Sh. Varinderjeet Singh Vs. North Delhi Municipal Corporation Page 9 of 11 clear outstanding liability payable to plaintiff with respect to the first running bills totaling Rs. 9,39,860/. 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 defendant 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 defendant per se is to postpone liability of admitted debt of defendant payable to plaintiff.
14. Since, the outstanding payment of amount of first running bills totaling Rs. 9,39,860/ stands admitted in unequivocal, unambiguous, unqualified terms by defendant 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. 9,39,860/ in his favour and against the defendant under Order XII Rule 6 of CPC. Decree CS11265/2016 Sh. Varinderjeet Singh Vs. North Delhi Municipal Corporation Page 10 of 11 sheet be prepared accordingly.
15. So far as the facets of security amount and component of interest, its period, rate or whether it is payable by defendant 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) th on 14 Day of September, 2016. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
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