Delhi District Court
Umesh Tyagi vs Mcd on 8 May, 2024
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In the court of Sh. Umed Singh Grewal, District Judge-
Commercial Court-05, Central District
Extension Block, Tis Hazari, Delhi.
CS (Comm) No.: 934/2023
In the matter of:
Umesh Tyagi
Sole Proprietor of
M/s Amit Elevator Services,
Office :- 732, Burari Village,
Delhi - 110094 ........... Plaintiff
Vs.
1. MCD (Previously known as South DMC),
Through its Commissioner,
4th floor, Dr. S. P. Mukherjee Civic Centre,
J. L. Nehru Marg,
New Delhi - 110002.
2. The Executive Engineer (E-IV)
M.C.D. Primary School,
Police Colony,
Delhi - 110016. ........ Defendants
Date of Institution : 08-06-2023
Date on which arguments were concluded : 23-04-2024
Date of pronouncement of judgment : 08-05-2024
Present: Sh. Akhil Rana, counsel for the plaintiff.
Sh. Sanjeet Malik, counsel for the defendants.
CS (COMM) No.: 559/23
Umesh Tyagi Vs. MCD & ors.
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JUDGMENT:-
1. This is an ordinary suit for recovery of ₹ 6,13,171.41 paise along with pendent-lite and future interest and cost.
2. The defendants are engaged in taking care of all civil amenities of National Territory of Delhi. The plaintiff is a government contractor and in that capacity, he participated in the tender process initiated by the defendants for the provision of man power for day-to-day maintenance of various MPL building, school, community centre, toilets and dispensary in ward nos. 68S, 75S & 88S under South Zone. He was a successful bidder and work order number 172 dated 14-02-2019 was allotted pursuant to which he entered into agreement with defendant no.2. He completed the work to the satisfaction of the defendants without any negative remark.
The defendants completed the final measurement of the work and passed his first bill of 4,00,707/- on 18-05-2020 and sent to the accounts department for payment but the amount has yet not been released. The plaintiff did not release the earnest money/security amount of ₹ 8,500/- also.
It is further mentioned that as per para no.E of additional conditions of work order, payment of ESI & EPF will be made extra to the contractor only after submission of original proof of ESI & EPF deposition for appointed labour by the contractor. As per office memorandum no. 184 dated 08-06- CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~3~ 2009, the engineer-in-chief is to reimburse ESIC and EPFO to the contractor and that circular of Central PWD is applicable to the defendants also because the work order was subject to GCC which have been inherited from Central PWD. Despite submission of proof of payment of ₹ 40,624/- to its employees under the head of ESIC and EPFO, the defendants did not release that money. They did not release an amount of ₹ 6,093/- to him which they are bound to give as contractual profit @ 15 % on ESIC and EPFO as per office memorandum numbers 150 & 184 dated 14-12-2007 and 08-06-2009 of Central PWD. The total outstanding amount is ₹ 4,55,924/- which defendants did not release despite receipt of demand letters dated 02-03-2022, 24- 08-2022, 24-09-2022, 24-09-2022 and 09-11-2022. Even the legal notice dated 11-11-2022 under Sections 477 and 478 of DMC Act r/w Section of 80 of CPC went unheard.
3. The defendants admitted in written statement that the plaintiff had participated in the tender issued by them for certain works and this tender is governed by the terms and conditions mentioned in the notice inviting tender. The plaintiff was the successful bidder and hence, work order number 172 dated 14- 02-2019 was awarded to him. It is denied that the department had prepared and passed bill for an amount of ₹ 4,00,707/- after final measurement. It has been admitted by the defendants that the plaintiff had deposited earnest money of ₹ 8,500/-.
CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~4~ It has been admitted in response to para nos. 1, 2 and 3 of the plaint that plaintiff was the successful bidder and work order number 172 was alloted to him but he is bound by terms and conditions of NIT, work order and GCC. He failed to adhere to the requirements of work order and GCC. It is admitted that as per law, GCC and established practice between the parties, the plaintiff is entitled to reimbursement of ESIC and EPF but after furnishing the clarification and documents requisitioned by defendants. The plaintiff never submitted break up of the documentary proof of the payment. He did not submit final bills as required by GCC and also directed by Hon'ble Delhi High Court in a judgment. So, there was no question of any payment to him.
4. Following issues were framed on 03-10-2023 :-
1. Whether the plaintiff is entitled for suit amount as prayed for? OPP
2. Whether plaintiff is entitled to any interest? If yes, for which period and at what rate? OPP
3. Whether plaintiff is at fault and not entitled to any amount due to non-submission of interim and final bills? OPD
4. Whether plaintiff is not entitled to refund of the security amount due to non-compliance of clause nos. 17 & 45 of GCC? OPD
5. Relief.
CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
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5. In order to prove the case, the plaintiff examined himself as PW-1 by tendering his affidavit in evidence Ex. PW- 1/A in which he reiterated the contents of plaint. He relied upon following documents :-
1. Ex. PW-1/1 is registration certificate ;
2. Ex. PW-1/2 (colly) is work order ;
3. Ex. PW-1/3 is passed bill ;
4. Ex. PW-1/4 is reimbursement letter dated 09-11-2022 regarding ESIC & EPF ;
5. Ex. PW-1/5 (colly) are memorandums guidelines regarding ESIC & EPF and contractual profit ;
6. Ex. PW-1/6 and Ex. PW1/16 to Ex. PW-1/18 are demand letters ;
7. Ex. PW-1/7 is legal notice dated 11-11-2022 ;
8. Ex. PW-1/8 is GCC rules;
9. Ex. PW-1/9 & ex. PW-1/19 to Ex. PW-1/29 are details of employees regarding ESIC contribution w.e.f. February 2019 to January 2020 ;
10. Ex. PW-1/10 & Ex. PW-1/30 to Ex. PW-1/40 are challans of EPF deposit w.e.f. February 2019 to January 2020 ;
11. Ex. PW-1/11 & Ex. PW-1/41 to Ex. PW-1/51 are ESIC receipts w.e.f. February 2019 to January 2020 ;
CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
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12. Ex. PW-1/12 & Ex. PW-1/52 to 62 are payment details of EPF contribution w.e.f. February 2019 to January 2020 ;
13. Ex. PW-1/13 is non-starter report ;
14. Ex. PW-1/14 is notice dated 07-06-2023 under Order XII Rule 8 CPC.
15. Ex. PW-1/15 is certificate under Section 65-B of Indian Evidence Act;
6. The defendants examined Mr. Siddharth Kumar Rai, Assistant Engineer (Elect-II), South Zone, as DW-1 who reiterated the contents of written statement in his affidavit. Additionally, he deposed that the plaintiff failed to comply with clause nos. 17 and 45 of GCC and hence, he is not entitled to refund of security. Moreover, he had not applied for no objection certificate from the legal department.
In cross-examination he relied upon following documents :-
1. Ex. DW-1/P-1 is measurement book of the work order in question ;
2. Ex. DW-1/P-2 is completion report dated 23-01-2020 of the work order ;
3. Ex. DW-1/P-3 is labour detail report submitted by the plaintiff ;
4. Ex. DW-1/P-4 is certificate and the aadhar cards of two workers issued by Labour Department of GNCT, Delhi CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~7~ regarding their competency. The defendant wanted that the contractor should file competency certificate of his workers who would be employed by him for executing the work order ;
5. Ex. DW-1/P-5 is agreement between the parties ;
6. Ex. DW-1/P-6 is test check report prepared by the officers of the defendant ;
7. Ex. DW-1/P-7 is demand for budget allocation ;
8. Ex. DW-1/P-8 is attendance register (containing 14 pages) of the labour engaged to execute the work order.
Issue No. 37. Learned counsel for defendants argued that provision of giving advance to the contractor is there in clause no. 7 of GCC but for that purpose, the contractor is to move bills. No interim bill was submitted by him. As per clause 9 of the GCC, the payment is to be made only after filing of bill by the contractor within three months of completion of the work. In the case in hand, the work was completed on 23-01-2020 as mentioned in Ex. PW1/3, but the contractor did not file any bill. He further submitted that the Hon'ble Delhi High Court held in "North Delhi Municipal Corporation Vs. Sanjeev Kumar", RFA No. 430/17, decided on 22.03.2018, that it was mandatory for the contractor to submit bill. But the plaintiff did not follow that guideline also. He further submitted that the document Ex.
CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~8~ PW-1/3 is being touted as bill by the plaintiff but it is not so. That document is merely internal noting by the officials of the defendants and same cannot be taken into account because no bill was given by the plaintiff at any point of time and hence, there was no occasion for the defendants to pass the bill. The said document is neither interim nor final bill and nor it is the proceeding vide which any of the bill was passed by the defendants.
On the other hand, learned counsel for plaintiff admitted it correct that if the contractor wanted to take advance, he is required to submit bill as per clause no. 7 of GCC. Even if the bill is not submitted, the defendants, on their own, may pass the bill under that clause and similar are the provisions of clause 9 for final bill. He further argued that Ex. PW-1/3 is the proceeding vide which officers of the defendants had recommended to make payment of bill to the plaintiff. Despite it, the accounts branch did not follow that direction. He submitted that Ex. PW-1/3 is not internal noting because the same is bearing signatures of the officers of the defendants including Engineer in-charge and also of the contractor.
8. The bone of contention is the document Ex. PW-1/3. Whether it is interim or final bill or proceedings of the defendants vide which interim or final bill was passed or it is merely official noting having no probative value ?
CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~9~ Its perusal shows that it is in several inks. Some of its contents are in printed form and some have been written with pen. Some contents have been written with thick pen ink. The signatures of all concerned persons are naturally with pen.
Ordinarily, following are the contents of a bill of a contractor :-
1) Name of the firm/company.
2) Name of the proprietor/partner/director.
3) Invoice number.
4) Date of invoices.
5) Date of execution of the work.
6) Description and measurement of the work.
7) Total value of the work done.
8) Amount needed as advance.
9) The bill is generally address to the department.
10) Signature of the proprietor/ partner/ director/ authorized signatory.
Ex. PW-1/3 reflects that it is bearing only the detail of the work done and its measurement. It is bearing the signature of plaintiff also but not as a person submitting the bill but as a person receiving the amount from the department. All other above contents are missing. It bears the signatures of the Assistant Engineer and also Executive Engineer who has been termed as Engineer in-charge in conditions of contract. The CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 10 ~ counsel for defendants also admitted that designation of Engineer in-charge is X.En. Due to missing of the contents of a bill, this document can neither be termed as running nor the final bill.
9. Hon'ble Delhi High Court in Surgical Electronics vs. UOI 60 (1995) DLT 359 held that the internal notings are only an expression of views during the decision making process and cannot be treated as final binding and enforceable decision.
Hon'ble Supreme Court in M/s. Sethi Auto Service Station vs. DDA (2009) 1 SCC 180 held that notings in a departmental file do not have the sanction of law to be an effective order which is only an expression of viewpoint or opinion of an officer to be used for internal use and consideration of other officials of department and helps in arriving at final decision. Such type of internal noting is not meant for outside exposure. When such internal noting is approved by the final decision making authority and that order is communicated to the concerned party whose rights are affected, then only the same can be considered.
10. In Mahadeo & Ors., Appellants Vs Smt. Sovan Devi & Ors., Respondents, Civil Appeal No. 5876 of 22 arising out of SLP (C) No. 20839 of 21 decided by Hon'ble supreme Court on 30-08-2022, following was held :-
CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
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15. This Court in Municipal Committee v. Jai Narayan & Co. held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of an opinion by the particular individual. It was held as under:
"16. This Court in a judgment reported as State of Uttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670 held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. It was held as under: "24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 12 ~ cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.
(See State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493, Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, State of Bihar v. Kripalu Shankar (1987) 3 SCC 34, Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84, Sethi Auto Service Station v. DDA (2009) 1 SCC 180 and Shanti Sports Club v. Union of India (2009) 15 SCC 705)."
17. Thus, the letter seeking approval of the State Government by the Deputy Commissioner is not the approval granted by him, which could be enforced by the plaintiff in the court of law."
16. The basis of the claim of the writ petitioner is a letter written by the Secretary of the Soldier Welfare Department to the District Collector, Udaipur on 19.03.1971 for allotment of land. The Rules contemplate that if the possession is not taken within 6 months, the allotment shall be deemed to have been cancelled. Firstly, the inter- departmental communication dated 19.03.1971 cannot be treated to be a letter of allotment..."
11. Ex. PW-1/3 bears the signature of AAO as well as Executive Engineer (M) who is the authorized person by Commissioner to verify and check the measurement. The entries are based upon the measurement book which contains particulars of the work done on day to day basis that are cross checked by CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 13 ~ the lower rung officials of the defendants. Existence of signatures of AAO and XEn shows that the same has been passed by the concerned zone for release of the payment. Moreover, its contents were fully in the knowledge of the plaintiff as it is bearing his signature. Presence of signature of Executive Engineer shows that the decision had been taken at zone level that payment has to be made by the headquarter. Due to these circumstances and facts, above document has lost the status of internal noting.
So, it is held that above document is neither running nor final bill and nor it is internal noting of the defendants. But it definitely amounts to acknowledgement of ₹ 3,80,672/-.
12. As per clause 7 of GCC, the Engineer in-Charge may give advance to the contractor even without submission of interim bills, if the estimated cost of the work was more than ₹ 20,000/-. It is mentioned in clause 9 that the final bill shall be submitted by the contractor in the same manner as specified in interim bill clause within nine months of physical completion of work. As per plaintiff's counsel, Ex. PW-1/3 bear the words "II nd and final Bill" on top. Those words suggest that the proceedings of the defendants are regarding is final bill. Even DW-1 admitted in cross-examination that defendants had prepared & passed bills with regard to work order in question. So, DW-1 also proves that Ex. PW-1/3 is the proceeding of the defendants for making CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 14 ~ payment of work order amount to the plaintiff in view of the clause 9 of GCC even without submission of bill by the contractor.
13. Neither in work order nor in GCC and nor in judgment "NDMC Vs. Sanjeev Kumar" (supra), it is mentioned that if the contractor did not submit interim/running or final bills, he would forfeit right of filing of suit to recover the work order amount. So, it is held that though the plaintiff did not submit any bill with the defendants, yet he is entitled to recover the work order amount by filing a recovery suit. Hence, this issue is decided in favour of plaintiff and against defendants.
Issue no. 4
14. Learned counsel for defendants argued that as per clause 17 of GCC, if any damage has been caused while executing the work, the contractor is liable. Also, the security deposit cannot be refunded before the expiry of 12 months/ 6 months (In case the work order was more than ₹ 5 lacs/ upto ₹ 5 lacs as the case may be), after issue of final certificate or completion certificate or till the preparation and passing of the final bill, whichever was earlier. He further submitted that the plaintiff never submitted the final bill and hence, the same has yet not been passed and so, the cause of action for refunding earnest/ security amount has not arisen. He further submitted that the plaintiff did not furnish clearance certificate from the Labor CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 15 ~ Officer that no complaint was pending against him regarding work labour.
On the other hand, learned counsel for plaintiff argued that no document has been placed on record by the defendants to show that any damage was caused by contractor while executing the work. The work was completed on 23-01-2020 and completion report Ex. DW-1/P-2 was issued by the defendants on that day itself. He next submitted that DW-1 deposed during cross-examination that there was no complaint against the plaintiff by the labour department, ESIC and EPF department.
15. It is correct that as per clause 17 of GCC, the contractor is liable to pay or correct for the damages caused to anything while executing the work order or for any defect, shrinkage or other faults appearing in the work done, within 12 months/ 6 months in case the work order was of Rs. 5 lacs/ less than Rs. 5 lacs.
If such defect is detected, the Engineer in-Charge may ask the contractor to do the rectification and if he fails, such work can be got done through other persons for which the payment is to be made by the contractor. But the defendants did not file any report or examine any witness to prove that the plaintiff had caused damage to any building, road, fence or enclosure while executing the work or work done by him was faulty. Rather, deposition of DW-1 is that there was no negative CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 16 ~ remark regarding the present work. As observed earlier, the work was completed on 23-01-2020 and completion report was also issued on that date itself and so, defendants should have refunded the earnest/ security amount six months thereafter i.e. on or after 23-07-2020.
The plaintiff did not file any document which he may have written to the Labor Officer to issue him a clearance certificate. It is pertinent to mention that after writing to the Labor Officer for such certificate, the contractor is to send intimation to Engineer in-Charge as per clause 45 and on receipt of that communication, the Engineer is to write to the Labor Officer to intimate him if any complaint was pending against the contractor in respect of the work. If no complaint is found pending till after three months after the completion of the work or no communication is received from the Labor Officer to that effect till six months after the date of completion, it shall be deemed to have received clearance and the security deposit would be released to the contractor. The work was completed on 23-01-2020 and that fact would have come to the knowledge of Engineer in-Charge on the same day as completion certificate Ex. DW-1/P-2 had also been issued on that day itself. Even if the plaintiff did not apply to the Labor Officer for issuance of clearance certificate, it was the duty of the defendants, after completion of work, to seek information from the said officer whether any complaint was pending against the plaintiff or not.
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~ 17 ~ But the defendants did not adopt that course. Moreover, it is the deposition of DW-1 that no complaint was received by defendants against plaintiff regarding this contract.
DW-1 admitted it correct in cross-examination that the plaintiff had deposited earnest money to the tune of ₹ 8,488/- and the same has not been refunded.
Hence, it is held that plaintiff is entitled to refund of the security deposit of ₹ 8,488/- for the work order in question.
Issue no. 1
16. Learned counsel for plaintiff argued that work order number 172 dated 14-02-2019 was alloted to his client and he had deposited a security amount of ₹ 8,488/- with the defendants. The contractual amount was ₹ 4,14,477/-. After execution of the work, the defendants passed bill of ₹ 3,80,672/- after deducting 2% for income tax, 1% for SGST, 1% for CGST and 1% for labour cess and sent the same to the accounts department for making payment but it has yet not been made despite giving of demand letters on different dates Ex. Ex. PW- 1/6 and Ex. PW-1/16 to Ex. PW-1/18 and legal notice dated 11- 11-2022 Ex. PW-1/7 (colly).
Next argument is that earnest/ security amount of ₹ 8,488/- was also deposited with the defendant as precondition of the contract and that amount was refundable after six months of the execution of the contract. The contract was executed on 23- CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 18 ~ 01-2020 and the payment should have been made till July, 2020 but that amount has also been withheld.
He further submitted that as per the terms and conditions, bylaws and rules, the contractor of the plaintiff was required to deposit the ESIC and EPFO contribution in the accounts of the workers who were deployed to execute the work and that amount is to be reimbursed by the employer/defendants within 7 to 30 days. The plaintiff sent defendants letter Ex. PW1/4 dated 09-11-2022 for reimbursement of amount of ₹ 40,624/- under that head but it has not been paid. He further submitted that as per the office memorandum issued by Central PWD, the plaintiff is entitled to 15 % of profit on ESIC and EPFO contribution. The terms and conditions mentioned in notice inviting tender and GCC of the defendants are based upon GCC issued by Central PWD and hence the said memorandum is applicable to the defendants also and so, plaintiff is entitled to 15 % of ESIC and EPFO and in this way, the total comes to ₹ 6,093/-.
17. Counsel for defendants argued that the plaintiff was required to file the attendance book of the workers deployed by the plaintiff to execute the work order. But the plaintiff did not maintain such attendance register and also did not supply copy thereof to the plaintiff with letter Ex. PW1/4. Moreover, the application was not accompanied by the bank statement of the workers to show that they had received at least minimum wages CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 19 ~ from the plaintiff. Also, the application was not accompanied by the acknowledgment of the workers that the plaintiff had deposited ESIC and EPFO contribution in their accounts. Due to that default, no order was passed on that application. Before this court also, the plaintiff has not filed any document to show that the persons for whom the ESIC and EPFO contribution was deposited, had actually worked on the site. None of the worker has been examined and hence the plaintiff is not entitled to any amount under ESIC and EPFO head and consequently, it is not entitled to 15% of the profit of the amount of ESIC and EPFO as office memorandum of Central PWD is not applicable to the defendants.
18. The plaintiff is claiming amount under four different heads. First is for the passed bill amount of ₹ 3,80,672/-. Second is for ESIC and EPFO deposit. Third is for earnest/ security deposit and fourth is 15 % of the ESIC and EPFO.
It has already been decided that the plaintiff is entitled to earnest/ security amount of ₹ 8,488/- from defendants.
19. Now, let us come to the amount of ₹ 3,80,672/- i.e. under the heading of balance of contractual amount.
It is the admitted case that plaintiff had participated in the tender process initiated by the defendants and he was successful bidder and hence the work order number 172 dated 14-02-2019 CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 20 ~ for provision of manpower for day-to-day maintenance of various MPL buildings, school, community centre, toilets and dispensary in ward no. 68S, 76S and 88S under South Zone was alloted in his favour and the term of contract was 301 days. It is also the admitted position that the work order was executed by the plaintiff pursuant to which bill of ₹ 3,80,672/- was passed but not paid. It is not the case of the defendants that the contractual amount has been paid to the plaintiff. It admitted payment of only ₹ 3,80,672/-.
It has already been held that Ex. PW1/3 is not the bill submitted by the plaintiff. It is the proceedings of the defendants qua the work order in question. Even DW1 admitted in cross- examination that as Ex. PW1/3 is in the handwriting of the officials of the defendants and bears their signatures as well as the signatures of the plaintiff. So, Ex. PW1/3 amounts to acknowledgment dated 18-05-2020 that the plaintiff was entitled to a sum of ₹ 3,80,672/- from the defendants regarding the work order no. 172. After deducting an amount of ₹ 8,014/- for TDS @ 2%, an amount of ₹ 4,007/- for SGST @ 1%, an amount of ₹ 4,007/- for CGST @ 1% and an amount of ₹ 4,007/- for labour cess @ 1%, the net entitlement comes to ₹ 3,80,672/-. So, it is held that plaintiff is entitled to that amount from defendants as a balance of contractual amount.
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20. For reimbursement of the ESIC and EPFO contribution deposited in the account of the workers by plaintiff, it has been admitted in para no.14 of the written statement that as per established practice between the parties and as per law and GCC, the plaintiff is entitled to reimbursement of ESIC and EPFO but after submitting the relevant queries of the submission of proof by the defendants' department in prescribed format of the MCD. Moreover, it is mentioned in point (e) of additional conditions of work order Ex. PW-1/2 (colly) that payment of ESI & EPF will be made to the contractor only after deposition of original proof of ESI & EPF deposition for appointed labour by the contractor. Hence, as per additional conditions and written statement, if the contractor makes payment of ESIC and EPFO in the account of the employees engaged for the work order in question, he is entitled to reimbursement thereof.
21. As per work order Ex. PW-1/2, for executing the work, the plaintiff was required to engage one wireman grade-I and one electric beldar. The plaintiff was further required to maintain log book of the staff appointed by him. He was to employ Wireman who should have requisite qualification and Wireman-II license and also minimum experience of two years of operation and maintenance of electric installation. The plaintiff was further required to deploy the duty chart showing the names & number of persons deployed along with their addresses. He was further CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 22 ~ required to forward the name of his employees to the defendants in writing before starting the work. As per clause (e), the reimbursement is allowed to the plaintiff subject to furnishing of statement to the effect that ESIC and EPFO contributions had been deposited in the accounts of the workers.
Even DW-1 admitted that plaintiff had submitted proof of deposits of ESIC & EPF Ex. PW-1/4 dated 09-11-2022. But the defendants did not proceed further with the request because the documents were not submitted within 2-3 months of completion of work. He further admitted that the plaintiff deposited receipts of online payment of ESIC & EPF. He further deposed plaintiff should also furnish the acknowledgment by the workers to the effect that the contractor had deposited ESIC and PF contribution in the their account. But the plaintiff did not file any document and hence his claim was not forwarded, though he had submitted proof of deposit of ESIC and PF along with contingent bill.
22. In demand letter Ex. PW1/4 dated 09-11-2022, the plaintiff did not mention the name of the workers for whom he was claiming ESIC and EPFO reimbursement. Perusal of the payment receipts of ESIC and EPFO shows that the same are for 50 to 60 employees. He did not name any of the employee as the person who had executed the order. It is pertinent to mention that plaintiff is a government contractor who executes several work orders of defendants also. Moreover, the documents Ex. PW-1/9 CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 23 ~ onwards also show that he had kept several workers on permanent roll for whom he deposited ESIC and EPFO continuously. It is the admitted position that those 50 - 60 persons were not engaged by him for executing the present work order. But he did not mention in the application Ex. PW-1/4 the name of the workers for whom he was claiming the reimbursement.
23. But DW-1 has proved that the plaintiff had maintained the attendance register ex. DW-1/P-8 (colly) of the persons engaged by him for executing the work order. He further proved the competency certificate issued by Labour Department of GNCT Delhi Ex. DW-1/P-4 as required by the defendants. He also proved the completion report dated 23-01-2020 Ex. DW-1/P-2 and detail report of labour department as Ex. DW-1/P-3. Receipts regarding deposit of ESIC contribution w.e.f. February 2019 to January 2020 Ex. PW-1/11 and Ex. PW-1/41 to Ex. PW-1/51 are also placed on record. So, the plaintiff has successfully proved that he had engaged workers, whose names are mentioned in the attendance register, ESIC and EPFO contribution receipts, to execute this work order. Hence, he is entitled to reimbursement under that head, amount to 4 40,624/-. But plaintiff failed to show that OM Nos. 150 and 184 dated 14-12-2007 and 08-06- 2009 of Central PWD are applicable to defendants also. So he is not entitled to contractual period @ 15% of ESIC & EPFO.
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24. In view of above discussion, it is held that plaintiff is entitled to an amount of ₹ 3,80,672/- under the heading of contractual amount. The plaintiff is entitled to an amount of ₹ 8,488/- under the heading of earnest/ security. He is also entitled to an amount of ₹ 40,624/- under the heading of ESIC & EPFO. The total entitlement comes out to ₹ 3,80,672/- + ₹ 8,488/- + ₹ 40,624/- = ₹ 4,29,784/-. This issue is decided in favour of plaintiff and against defendants.
Issue No. 225. As per clause 9 of GCC, the contractors / plaintiff was to submit bill to the defendants so that they may make payment to him. But he did not file any bill and so, he is entitled to interest only from the date of filing of the suit. Taking into account the case "Rajnish Yadav Vs. NDMC, RFA (OS) (COMM) 1/2021"
decided by Hon'ble Delhi High Court on 29-04-2022", interest @ 9 % per annum is granted to the plaintiff.
Issue no. 5
26. Consequent to decision on above issues, it is held that plaintiff is entitled to an amount of ₹ 3,80,672/- from the defendants alongwith interest @ 9% per annum from the date of CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.
~ 25 ~ filing of suit i.e. 08-06-2023 till realization. Plaintiff is also entitled to ₹ 8,488/- + ₹ 40,624/- = ₹ 49,112/-. He is entitled to cost also.
Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Digitally signed Announced in open court on 8th day of May, 2024 UMED by UMED SINGH SINGH Date: 2024.05.08 15:50:26 +0530 (UMED SINGH GREWAL) District Judge-Commercial Court-05 Central District, Delhi. CS (COMM) No.: 559/23 Umesh Tyagi Vs. MCD & ors.