Delhi District Court
Also At vs North Delhi Municipal Corporation on 22 September, 2016
IN THE COURT OF Dr.VIJAY KUMAR DAHIYA: ADDL.
DISTRICT JUDGE (CENTRAL07), TIS HAZARI COURTS : DELHI.
New CS. No. 612814/16 & Old CS No. 65/14
Pankaj Arora
Sole proprietor of
M/s. Pankaj Constructions Co.
Plot no. 8, West Laxmi Market,
Khureji Khas, Opp. S.B.I.
Shahdara, Delhi 110051
Also At:
DP206, Maurya Enclave,
Pitam Pura, Delhi. .........Plaintiff
VERSUS
1.North Delhi Municipal Corporation Through its Commissioner's 4th Floor, Civic Center, Minto Road, New Delhi 110015.
2. The Executive Engineer (MIII)CLZ North Delhi Municipal Corporation, Old Hindu College Building, Kashmiri Gate, Delhi. .........Defendants Date of Institution : 10.10.2014 Date when the case reserved for order : 22.09.2016 Date of Order : 22.09.2016 J U D G M E N T
1. The present suit has been filed by the plaintiff for recovery of Rs. 7,08,754/ against the defendants.
1/7 New CS. No. 612814/16 & Old CS no. 65/14 Pankaj Arora Vs. North Delhi Municipal Corporation
2. The brief facts of the plaintiff's case are like this. The plaintiff is the sole proprietor of the proprietorship firm engaged in the civil constructions and supply of building materials. Plaintiff has been executing the work of civil nature of the defendants. Defendant no. 1 is a body corporate of state of Delhi and engaged in the business of taking care of all the civil amenities, developments etc. The plaintiff being Govt. contractor approached the defendant for the work order through tender invited by defendant no. 2 and after satisfaction of all required conditions, defendant no. 2 awarded the work order bearing no. 554 dated 08.03.2013 titled as "Upgradation service in MVID Hospital Sh: Const. Of boundary wall of JE (Civil) store in MVID Hospital in C282/CLZ" to the plaintiff. Plaintiff thereafter entered into formal contract in this regard and plaintiff immediately made necessary arrangement for the execution and completion of the awarded work order and completed the same before the stipulated period which was to the satisfaction of Engineerinchief of defendant no. 2 and no defect could be pointed out during prescribed period for defect liability.
3. As stated, the concerned JE of the defendants completed the final measurement of abovesaid work order and recorded the same in the measurement book on 16.06.2013 but no effort has been made by the defendant no. 2 for passing the final bill of the plaintiff in respect of the abovesaid work order despite the request being made by the plaintiff time and again. Defendant no. 2 has signed the completion report acknowledging the work completed by the plaintiff and the final bill for the suit amount has been prepared by the concerned AE which has been acknowledged by the plaintiff. But defendant no. 2 has not passed the final bill for the reason best known to the defendant no. 2. The quality control cell of the defendant has 2/7 New CS. No. 612814/16 & Old CS no. 65/14 Pankaj Arora Vs. North Delhi Municipal Corporation tendered the final inspection report on 24.09.2013 without recording any adverse remark. The plaintiff approached the defendants for releasing bill amount but defendant failed to release the same to the plaintiff. Thereafter, plaintiff got issued a legal notice dated 17.06.2014 calling the defendant to pass his final bill alongwith interest @ 12% per annum. But defendant no. 2 replied the said letter through letter dated 06.08.2014 making false and frivolous defences. The defendant have not released the money to the plaintiff and consequently plaintiff has been deprived of his money alongwith interest accrued thereon. The plaintiff is entitled for interest for a period over 8 months as per clause 9 of the general terms and conditions of the agreement. Hence, the present suit.
4. Defendants have appeared after being served with summons for settlement and filed written statement stating therein that suit is bad for misjoinder of the party in as much as defendant no. 2 has been impleaded as party who is neither necessary nor proper party. There is no cause of action in favour of the plaintiff. Plaintiff has not completed required formalities despite repeated requests, therefore, final bill could not be passed. The suit is premature and liable to be dismissed. Plaintiff has accepted the measurement of the abovesaid work in the measurement book on 11.11.2013 despite the fact that the same was recorded in the MB on 16.06.2013. The defendant no. 2 received the requisition of MVID hospital and required satisfaction work completion certificate were received on 27.12.2013. The defendant no. 2 received report of Quality Control Cell of the MCD on 24.09.2013. Plaintiff had not filed the bill for work executed by him despite the fact that JE has prepared the final bill. The relevant document namely final inspection report of quality control cell, approval note, Copy of invoices, ready mix concrete (RMC) were lost on 11.04.2014 3/7 New CS. No. 612814/16 & Old CS no. 65/14 Pankaj Arora Vs. North Delhi Municipal Corporation and said loss of documents was informed to the Delhi Police through SO No. 430/14 dated 17.04.2014. The defendant no. 2 had obtained the photocopy of final inspection report of the quality control cell and approval note and further requested to plaintiff to supply the original RMC so that final bill can be prepared. But plaintiff failed to supply the same. Therefore, EIC of the MCD prepared the final bill as per clause 7 of the terms and conditions of the agreement but bills could not be passed as plaintiff failed to supply documents to the defendant. Therefore, plaintiff is not entitled for the interest for bill payment. The suit deserves to be dismissed.
5. Plaintiff filed replication denying the assertion made in the WS and reiterated the contents of the plaint.
6. From the pleadings of the parties following issues were framed :
(i) Whether the plaintiff is entitled for the decree of interest of Rs. 78,754/ from the date of filing of the suit till realization? OPP
(ii) Relief.
On 22.09.2016 with the consent of the parties one additional issue was framed as on account of sheer inadvertence issue no. 1 has been framed for interest only and additional issue was framed which as under :
(1A) Whether plaintiff is entitled for decree of an amount of Rs. 6,56,254/ alongwith pendente lite and future interest @ 12% from the date of filing of the suit till its realization? OPP
7. Parties led evidence. Sh. Pankaj Arora appeared as PW1 to 4/7 New CS. No. 612814/16 & Old CS no. 65/14 Pankaj Arora Vs. North Delhi Municipal Corporation prove his case and testified through evidence affidavit Ex.PW1/A. PW1 relied upon documents i.e. copy of work order Ex. PW 1/1 (OSR), certified copy of test report of sample dated 20.05.2013, 20.05.2013, 20.05.2013, 05.06.2013, 05.06.2013, 26.06.2013 alongwith certifiate under section 65B Indian Evidence Act Ex.PW1/2 (OSR), copy of test certificate dated 11.06.2013 Ex.PW1/3 (OSR), copy of measurement book Ex.PW1/4 (OSR), copy of legal notice dated 17.06.2014 Ex.PW1/5, copy of reply dated 06.04.2014 Ex.PW1/6.
8. To rebut the case of the plaintiff, Sh. Kishan Kumar, Assistant Engineer (M) II appeared as DW1 and testified through evidence affidavit Ex.DW1/A. He has relied upon complaint dated 17.04.2014 Ex.DW1/1, office copy of letter dated 16.09.2014, 01.04.2015, 06.05.2015, 21.05.2015 and 02.06.2015 Ex.DW1/2 to Ex.DW1/6, copy of general terms and conditions Ex.DW1/7 and circular dated 19.05.2006 Ex.PW1/8.
9. I have heard the counsels for the parties and gone through the records.
My issuewise findings are as under: ISSUES NO.1 & 1A
10. These issues are related to each other, hence, decided by common order. Onus to prove these issues is on the plaintiff. Plaintiff appeared as PW1 and testified through his evidence affidavit Ex. PW1/A and reiterated the contents of the plaint which are already set out while briefing the facts of the present case and proved certain documents.
5/7 New CS. No. 612814/16 & Old CS no. 65/14 Pankaj Arora Vs. North Delhi Municipal Corporation
11. To rebut the case of the plaintiff, Sh. Kishan Kumar, AE (M) II appeared as DW 1and testified through his evidence affidavit Ex.DW1A and reiterated the assertion made in the written statement which are already reproduced while briefing the facts of the present case.
12. It may be noted that it is admitted between the parties that work order was allocated to the plaintiff through Ex.PW1/1 which was completed by the plaintiff as per terms and conditions of the agreement within stipulated period. PW1 has admitted that he accepted the measurement in the measurement book on 11.11.2013 in respect of entries which were made on 16.06.2013. He further admitted that EIC of the defendants has prepared the bill himself. He denied that he has not deposited the original RMC with defendant no. 2. DW1 in his cross has admitted that the details of the document lost has been mentioned in the complaint Ex.DW1/1 but a bare perusal of this Ex.DW1/1 lead to infer that it was not detailed in this document that original invoices of RMC were lost. Plaintiff has filed the present suit on 10.10.2014 and defendants have issued letter dated 16.09.2014 Ex.PW1/2 asking the documents from the plaintiff for preparation of the bill. Thereafter, defendants have issued letter dated 01.04.2015 Ex.DW1/3 asking for depositing RMC slips. Thereafter the defendant sought documents from the plaintiff after filing of the present suit through letter dated 06.05.2015 Ex.DW1/4 and letter dated 21.05.2015 Ex.DW1/5 and letter dated 02.06.2015 Ex. DW 1/6. The defendants have sought invoices of the RMC from the plaintiff. Plaintiff has admitted in his cross that he could not ascertain the company name from whom the plaintiff has purchased the RMC for work order in question.
13. From the abovesaid discussion, it can be concluded that the 6/7 New CS. No. 612814/16 & Old CS no. 65/14 Pankaj Arora Vs. North Delhi Municipal Corporation plaintiff had deposited the original invoices of the RMC to the defendants which has been admittedly lost by the defendants and on account of non availability abovesaid invoices of the RMC the final bill could not be passed by the defendants. It is only by the sheer negligence on the part of the defendants that bill in question could not be prepared and passed by the defendants in as much as the original documents including RMC had been lost by official of the defendants. Therefore, defendants are liable to prepare and pass the final bill in respect of the work order in question. Plaintiff is also entitled for interest @ 9 percent from the filing of the present suit till its realization. Therefore, these issues are decided in favour of the plaintiff and against the defendants.
RELIEF
14. From the above discussions and in view of my findings discussed above, I am of the opinion that the suit of the plaintiff deserves to be decreed and is hereby decreed. The plaintiff is held entitled to a decree of Rs.6,56,254/ along with pendenteelite and future interest @ 9% per annum from the date of institution of the suit till realization. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court, (Dr. VIJAY KUMAR DAHIYA) On 22st Day of September, 2016. ADJ(Central07)/DELHI 22.09.2016 7/7 New CS. No. 612814/16 & Old CS no. 65/14 Pankaj Arora Vs. North Delhi Municipal Corporation