Delhi District Court
Suraj Prakash vs Municipal Corporation Of Delhi on 7 October, 2024
IN THE COURT OF AMIT KUMAR : DISTRICT JUDGE
(COMMERCIAL)-08 : TIS HAZARI COURTS, CENTRAL:
DELHI
(Commercial Case No. 1254/2023)
CNR No. DLCT01-012844-2023
SURAJ PRAKASH
SOLE PROPRIETOR OF
M/S KAMAL ELECTRICALS
7863,ARAKSHAN ROAD, RAM NAGAR,
PAHAR GANJ,
NEW DELHI-110055.
.....PLAINTIFF
VS
MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER
CIVIC CENTRE, MINTO ROAD,
NEW DELHI-110002
....DEFENDANT
Date of institution of case : 20.09.2023
Date of arguments : 12.09.2024
Date of pronouncement of judgment : 07.10.2024
JUDGMENT:
1. Present is a suit seeking recovery of Rs. 9,66,595/- along with interest @ 12% per annum and the brief facts necessary for disposal of this suit as averred in the plaint are that the plaintiff is an enrolled contractor with MCD/defendant and is engaged in electrical work. Plaintiff was awarded work order No. 157 dated 14.03.2018 for P/o Semi High Mast Poles in Municipal park, Jahangir Puri, Delhi. It is stated that immediately after the award of the work order, the plaintiff made all necessary arrangements and executed the work order before the stipulated period without -1- any negative remark. The prescribed period for defect liability also passed over without negative remark. Defendant completed the final measurement of the work order and prepared and passed the 1st and final bill pertaining to work order for a sum of Rs.7,49,581/- on 29.05.2020. Despite passing the bill, the payment has not been released despite several requests. The plaintiff also served the legal notice dated 16.12.2022 calling upon the defendant to release the principal amount of Rs. 7,49,581/- along with interest @12% per annum. The defendant did not release any money, hence this suit has been filed seeking recovery of the bill amount and interest accrued thereon @ 12% per annum.
2. The defendant in the written statement did not dispute the award of the work order to the plaintiff. It was, however, claimed that the plaintiff has not submitted bill for payment as required under the contract and has not complied with the clause 9 and 45 of the General Contract Clauses (GCC) and 4(b) of the Work Order and therefore, is not entitled to suit amount. It was stated that the plaintiff did not submit final bill with measurement as required. It was claimed that suit is pre mature as submissions of bill is pre-requisite and essential for payment and failure to submit the bill on the part of plaintiff renders him illegible for the suit amount.
3. In the replication, the contents of the written statement were disputed and that of the plaint were reiterated.
-2-4. On the pleadings of the parties, following issues were framed on 10.04.2024:
1. Whether plaintiff is entitled to recovery of the suit amount ?OPP
2. Whether plaintiff is entitled to interest? If yes, at what rate and for what period? OPP
3. Whether the plaintiff has failed to comply with the necessary terms and conditions of GCC and work order ? OPD
4. Relief.
5. The plaintiff to prove its case examined himself as PW1 whereas the defendant examined its Assistant Engineer (Elect.) as the sole witness.
6. I have heard the submissions and have perused the record and my findings on the issues is as under:
ISSUE NO. 1 & 2:
7. The onus of proving both these issues was on the plaintiff.
The plaintiff in his examination in chief, proved on record the copy of the work order as Ex. PW1/1, the legal notice as Ex. PW1/4 and copy of the relevant pages of GCC as Ex. PW1/3. There is no Ex.PW1/2. In the brief cross examination, the witness admitted that all the terms and conditions of the work order. He stated that he submitted the final bill with full measurement. He denied the suggestion that he did not submit the final bill alongwith measurement with the defendant. He denied the -3- suggestion that suit is not maintainable for want of compliance of condition no. 4(b) of the work order.
8. The defendant witness in his examination in chief reiterated the contents of the written statement. In the cross examination, he admitted that the plaintiff completed the work order as per NIT. He admitted that bills have been passed at the end of the defendant. He admitted that the defendant has passed all the bills as per entries made in the measurement book, which were accepted by the plaintiff. He admitted that no labour complaint is pending. He admitted that defendant has not made any payments to the plaintiff for the work order. He admitted that proforma invoice Ex DW1/P1 was received from the plaintiff by the office of Executive Engineer MCD. The amount of the passed bill is Rs. 7,54,681/-.
9. It was argued by Ld. Counsel for the plaintiff that the plaintiff completed the work order to the satisfaction of the defendant. The defendant has prepared the bill but did not release the payment and therefore, the plaintiff is entitled to the suit amount alongwith interest. It was argued that as per Clause 9 of the GCC, the defendant is bound to make the payment within six months, if the tender value is upto Rs. 5 Lac and within nine months, if it exceeds Rs. 5 Lac and since no payment has been made by the defendant as per GCC, the plaintiff is entitled to the bills amount, refund of security and earnest money with interest.
10. On behalf of the defendant, it was argued that the suit is pre mature as the plaintiff did not submit the bills alongwith -4- measurement nor the labour clearance certificate and therefore, the defendant is not liable to pay any money to the plaintiff. Counsel for the defendant in support of his submission relied upon the judgment of Hon'ble Delhi High Court passed in North Delhi Municipal Corporation Vs. Sanjeev Kumar, RFA No. 430/2017 decided on 22.03.2018.
FINDINGS:
11. As far as the execution of the work order is concerned, the same is undisputed. DW1 in the cross examination, admitted that the entire work of the work order were completed by the plaintiff as per NIT. He admitted that no labour complaint is pending and also that first and final bill of the work order was passed. When the defendant has already passed the bill of the plaintiff, it cannot be argued for the defendant that the plaintiff is not entitled to the suit amount as he did not complied with the clause 4(b) of the work order or other terms and conditions of GCC.
12. The perusal of the judgement passed by Hon'ble Delhi High Court in North Delhi Municipal Corporation Vs. Sanjeev Kumar (supra) shows that it nowhere mandates that the plaintiff is required to submit the bills only on his letter head and only in his handwriting. The plaintiff proved on record the final and running bill passed by the defendant. The bills bear the signatures of the plaintiff at the relevant space provided in the bills. It means that the plaintiff accepted the bills prepared and passed by the defendant and signed the same as token of acceptance. DW1 admitted in the cross examination that the bills were prepared on measurement book. If that is so, then what was the requirement -5- of the plaintiff to submit the bills. Otherwise also, in the judgment relied upon, the Hon'ble High Court gave several directions to the defendant as well such as photography, videography, maintaining of record digitally etc. Even after considerable time of this judgment, the defendant has failed to comply with these directions. The defendant cannot claim the compliance of this judgment regarding submitting bills by contractor alone without complying with the directions given to the defendant. When the defendant itself failed to comply with directions given in this judgment, it cannot be argued that the plaintiff should diligently comply with the directions of this judgment. The facts that the plaintiff signed the bills and accepted the bills, give rise to the presumption that there was due compliance of the directions of Hon'ble High court given in this judgment. The plaintiff, therefore, is entitled to the bill amount.
13. Coming to the aspect of interest, the plaintiff has claimed interest @ 12% on the entire amount from 01.03.2021. Counsel for the defendant argued that there was no term and condition regarding payment of interest and therefore, plaintiff is not entitled to any interest. The law in this regard has already been settled by Hon'ble Delhi High Court in the case of North Delhi Municipal Corporation Vs. Vipin Gupta in RFA No. 160/2017 and the SLP against this order was dismissed by Hon'ble Supreme Court. This judgment was further confirmed by the Hon'ble Division Bench of Hon'ble Delhi High Court in the case of North Delhi Municipal Corporation Vs. M/s. Barahi Construction passed by Hon'ble Delhi High Court in RFA (Commercial) 06/2021 dated 15.03.2021. In view of these -6- judgments, the plaintiff is entitled to interest on the bill amount but not from 01.11.2022 as claimed by the plaintiff. Plaintiff did not submit bills and same were prepared by defendant. The plaintiff, therefore, shall be entitled to interest @ 9% per annum on the bill amount of Rs. 6,62,478/- after expiry of nine months from the date of the bill as the bills amount is more than Rs. 5 Lac and @ 6% per annum on the security amount of Rs. 87,103/- from the date of suit till realization.
14. The plaintiff has, therefore, proved these issues in his favour as discussed above.
ISSUE NO. 3:
15. The onus of proving this issue was on the defendant. It was argued for the defendant that the plaintiff failed to meet out the terms and conditions of the notice inviting tender as he did not submit the bills. As already discussed, the bills bear the signatures of the plaintiff and were passed by the defendant after completion of all the formalities as admitted by DW1. DW1 admitted in the cross examination that the bills were cleared after going through all the relevant documents like measurement book. If the plaintiff did not fulfill the conditions of the tender as argued, then why the bill was passed remains unanswered. The defendant therefore has failed to prove the issue.
RELIEF:
16. In view of my finding given on the above said issues, plaintiff shall be entitled to a decree for a sum of Rs. 7,49,581/-.
-7-a) Plaintiff shall also be entitled to interest @ 9% on the amount of Rs. 6,62,478/- after expiry of nine months from the date of passing the bill on 29.05.2020.
b) Plaintiff shall be entitled to interest @ 6% on the security amount of Rs. 87,103/- from the date of the suit till realization.
17. Plaintiff shall also be entitled to the cost of the suit.
18. Copy of the judgment be sent to both the parties by electronic mode, if available or otherwise.
19. Decree sheet be prepared accordingly.
20. File be consigned to Record Room.
Digitally
signed by
AMIT AMIT KUMAR
Date:
KUMAR 2024.10.07
16:07:49
+0530
(AMIT KUMAR)
District Judge, Comm. Court-08
Central, Tis Hazari Courts
Extension Block, Delhi/07.10.2024
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