Delhi District Court
Shri Suraj Bhan vs Municipal Corporation Of Delhi on 22 July, 2016
IN THE COURT OF MS. SUJATA KOHLI ADDITIONAL DISTRICT
JUDGE (CENTRAL) TIS HAZARI : DELHI
C.S. No. : 537/14/11
Case No.15101/16
Unique Case ID No.02401C0066092011
Shri Suraj Bhan, Sole Proprietor
M/s S.B. Builders,
Govt. Contractors and General Order Supplier,
R/o H. No.117, Ladpur,
Delhi110006. ........Plaintiff
Versus
Municipal Corporation of Delhi
Through Its Commissioner,
Town Hall, Chandni Chowk,
Delhi110006.
Date of filing of the suit : 14.02.2011
Date of reserving judgment : 21.07.2016
Date of passing the judgment : 22.07.2016
SUIT FOR RECOVERY
JUDGMENT
1. Present suit has been filed for recovery of Rs.5,93,325/ for work done by the plaintiff. Plaintiff is sole proprietor of a contract business being run under the name and style of M/s S.B. Builders, and he is a government contractor and order supplier and residing at Delhi.
C.S. No. : 537/14/11 page 1 of 24
2. Subject matter of the present suit is the work contract with Municipal Corporation of Delhi (hereinafter referred to as "MCD"), for which the plaintiff is aggrieved that he was not paid for the work executed.
3. Facts as stated are that tender was invited by defendant through its Executive Engineer, Najafgarh, ZoneI, Engineering Department, for the project called "Impt of lance by RMC in Village Mahipalpur in C 144, NG (Master Hukam Singh Wali Gali)." Following work was to be executed:
(i)Earth work in surface excavation not exceeding 30 cm in depth but exceeding 1.5m in width as well as 10 sqm on plan e/c disposal of excavated earth upto 50m and lift upto 1.5m disposed soil to be leveled and neatly dressed all kind of soul.
(ii)Carriage of surplus earth/rubbish or malba by mechanical transportation including loading, stacking comp lead within 5.00KM.
(iii)S/s of brick aggregated 50mm nominal size at site.
(iv)Laying of brick aggregate 50mm nominal size including screening sorting and spreading to template and ramming with hand rammer.
4. Schedule of quantities was separately filed.
5. Plaintiff alleged that after perusal of schedule of quantities, he offered his C.S. No. : 537/14/11 page 2 of 24 rates, which happened to be lowest and were accordingly accepted.
Particulars of the amount agreed are stated as under:
(i) Tendered Amount Rs.4,73,914.00
(ii) Estt. Amount Rs.4,73,950.00
(iii) Contractual Amount Rs.4,73,914.00
(iv) Percentage Rates At par.
(v) Head of A/c. 66/3129(vi) Time of completion 2 months
6. Upon acceptance of tender, submitted by plaintiff, work order was issued bearing No.EE.NG/M1/TC/200809/1032 dated 29.10.2008. Material terms of agreement have been reproduced by the plaintiff specifically as under:
(i) Name of work Imp. of lane by RMC in Vill.
Mahipalpur in C-144 NG (Master
Hukam Singh Wali Gali)
(ii) Tender Amount Rs.4,73,914.00
(iii) Estt. Amount Rs.4,73,950.00
(iv) Contractual Amount Rs.4,73,914.00
(v) Rates officer by client At par.
(vi) Work order No. EE.NG/M-1/TC/2008-09/1032
66/3129
(vii) Date of start of work 09.11.2008
(viii) Time allowed to complete the 2 months
work
(ix) Stipulated date of completion 08.01.2009
(x) Actual date of completion 04.12.2008
C.S. No. : 537/14/11 page 3 of 24
7. Plaintiff claims that immediately after work order was issued, plaintiff commenced work with due diligence. The materials as per the agreement were procured by him, and were got tested from MCD laboratories.
Testing reports dated 26.11.2008 were duly issued by the concerned authority and the original testing reports were delivered by the plaintiff to defendant.
8. Plaintiff also obtained confirmation of M/s Vikas RMC (Ready Mix Concrete) for the design mix used by the said agency in RMC, and they also confirmed that it was done as per Indian standard, and the specifications were stated as under: Design Mix Grade M-20 W/C Ratio-0.44 Cement 383 Kgs (OPC-43Gr.) Water 170 Kgs.
Sand 710 Kg (Zone II Sand, Narnaul)
20mm Agreegate 718 Kg (TOSHAM)
10mm Agreegate 412 Kg (TOSHAM)
Admixture 1% Max. by Wt. of cement
9. Thereafter, plaintiff simply goes on to state that he dispached letter dated 27.07.2009 to the Commissioner, and he referred relevant portion thereof C.S. No. : 537/14/11 page 4 of 24 as under: "On 05.12.08 when I had completed the work I was called by Sh. Pawan Gupta and who asked me to pay Rs.2.00 Lacs as amount for payment of bill. Upon my refusal he asked me to come later. On 19.12.2008, I was called again at the store by Sh. Pawan Gupta who asked me to accept the bill of Rs.,90,752/ much less than the amount of work I had carried out. I made a note in the MB stated that I do not accept the measurement of this bill. But inspite of a lapse of around 7 months, I was not paid my full bill nor I was called for remeasurement nor was any notice issued to me by the department which clearly shows that their malafide intentions"
unquote.
10. However, plaintiff is aggrieved that no action was taken by the defendant, inspite of said letter, and therefore, he again dispatched another letter dated 18.12.2009 seeking information under Delhi Right to Information Act, 2005 from the competent authority i.e. Superintending Engineer PIO, Engineering Department, Najafgarh Zone, New Delhi seeking information on the following aspects:
(a)What is the position of my application filed on 27.07.2009?
(b)PIs provided me the day to day progress made on my application till date?
(c)When did it reach which official and what action wa taken by official on my application?
(d)Why no bill was paid to me till date despite various C.S. No. : 537/14/11 page 5 of 24 requests made to the department?
(e)Why the orders of the worthy commissioner were not complied as the bill is to be submitted by the JE within 10 days of completion of work? What action is to be taken against the erring JE/AE.
11. It is further grievance of the plaintiff that complete information was not given on this RTI query, and as such, plaintiff then approached Dy. Commissioner, Najafgarh Zone on 03.02.2010 under same Act, informing him that vague information was given by the Superintending Engineer, and accordingly filed appeal thereunder.
12. It is alleged that when bill was still not paid to plaintiff, he dispatched another letter dated 23.07.2010 to the Executive Engineer, whereby he furnished first and final bill and also claimed hindrance from the defendant from 05.12.2008, when he is alleged to have completed the work in question.
13. Similarly, he also referred to another letter sent by him being dated 08.09.2010 wherein plaintiff clarified that the said letter should be treated as notice under Interest Act.
14. Plaintiff further alleged that since there was no response, and no compliance by MCD towards payment, plaintiff was compelled to serve legal notice through his counsel to Commissioner on 01.10.2010 with claim of Rs.5,93,325/. This notice was sent u/s 4789 of the DMC Act.
15. Plaintiff claimed payment on the following accounts: Principal amount - Rs.4,73,436.00 (as per first and final bill) Interest - Rs.1,08,889/ (@ 12% per annum from 05.12.2008 til date i.e. for a C.S. No. : 537/14/11 page 6 of 24 period of one year and 11 months) Thus he claimed a total sum of Rs.5,93,325/ by way of present recovery suit.
16. At the initial stage defendant had not contested the case and was proceeded exparte, but later by order dated 06.11.2012, upon application u/o 9 r 7 CPC, they were allowed to participate and contest the case.
17. Defendant in their written statement raised certain preliminary objections, firstly that no notice u/s 477/478 of the DMC Act, 1957 was served, prior to the filing of the suit, and that the suit is not maintainable. Defendant raised another preliminary objection as contained in para 2 which is read as under: "That suit of plaintiff is not maintainable on account of the fact that plaintiff is not enter into an agreement in all the works according to the agreement"
18. Purport of this objection is not clear, but in all probability, what seems is that the defendant raised objection, that the work as done was not according to the agreement. Further, defendant raised objection that proper court fee had not been filed, and for this reason alone, the suit itself should be dismissed.
19. Defendant further alleged that the plaintiff has concealed material facts and thus is not entitled to claim relief from a court of law. It has been mainly stated that though the work order in question, was admittedly issued in favour of plaintiff, and it is also admitted, that schedule of rate itemwise had been also supplied to plaintiff, along with copy of the work order, but it is the version of defendant, that the work was not completed by plaintiff, and instead plaintiff did only 50% of the work, and stopped it C.S. No. : 537/14/11 page 7 of 24 thereafter, without any valid reason or intimation given to defendant.
20. It is alleged that the plaintiff was supposed to execute work worth Rs.4,73,914/, a per work order and the schedule of rates, whereas the plaintiff executed the work only worth Rs.1,90,752/. Defendant, thereafter, also goes on to claim that first running bill worth Rs.1,90,752/ was prepared on the basis of actual executed quantities, which the plaintiff refused to accept, saying that he was not in agreement with measurements, as mentioned in measurement book.
21. Further plea of limitation has also been raised by the defendant.
22. On merit also, this is the main defence raised, that the work was not completed by plaintiff, and only 50% of the work allocated was done, and the bill which was prepared by defendant, as running bill, was not accepted by plaintiff himself.
23. Defendant has strongly denied that plaintiff completed the work as per work order. Defendant has not disputed the fact that plaintiff did start the work at the site, but they alleged that after executing 50% thereof, plaintiff stopped the work without any valid reason or intimation even given to the defendant.
24. Plaintiff has filed replication, denying the stand taken by the defendant, and has reiterated the averments as already made in the plaint as correct. He claimed that he had completed the entire work. He has however, not denied that only a running bill was prepared after completing the work, whereas defendant had been under obligation to prepare the final bill.
25. Regarding refusal to accept the running bill by the plaintiff, he does not dispute his refusal, but has tried to justify the refusal by pleading, that he C.S. No. : 537/14/11 page 8 of 24 had not agreed with the measurements which were recorded in said running bill, and he correctly refused to accept the same. It is submitted that it was encumbent on the part of defendant to have remeasured the work in the presence of the plaintiff which was never done.
26. Plaintiff in his reply denied having ever stopped the work after executing 50% thereof. As per plaintiff, the entire work stood completed by him, and further in terms of agreement, it is defendant who had not prepared first and final bill which they were bound to prepared, as work was complete in all respects.
27. Plaintiff further alleges that the defendant had taken benefit of the executed work and yet not paid the dues of the plaintiff. He also contended that had the work been incomplete, defendant would have issued some letter to the plaintiff regarding incomplete work, which is not so as per record. It is also contended by plaintiff that if plaintiff had indeed not completed the work, the defendant had not specified as to who had then completed it.
28. On the basis of pleadings, vide order dated 12.03.2013, following issues were framed by Ld. Predecessor: (1)Whether the suit of th plaintiff is barred u/s 477/478 of DMC Act, 1957, for want of the service of the statutory notice upon the defendant?OPD (2)Whether the plaintiff is entitled to a decree of recovery of Rs.593325/ in favour of the plaintiff and against the defendant?OPP (3)Whether the plaintiff is entitled to any interest on the suit amount?
C.S. No. : 537/14/11 page 9 of 24
If so, at what rate and for which period?OPD
(4)Relief.
29. During evidence, plaintiff has examined himself as PW1 on his affidavit dated 18/07/2011 Ex.PW1/A. Besides, he relied upon following documents:
(i) Copy of schedule of quantities of the work was sought to be exhibited as Ex.PW1/1, as per affidavit, was deexhibited and only marked as Mark A,
(ii) Copy of work order dated 29.10.2008 sought to be exhibited as Ex.PW1/2, as per affidavit, was deexhibited and only marked as Mark B,
(iii) Letter regarding submissions of design Mix of M20 Grade along with 15 challan were exhibited as Ex.PW1/3,
(iv) Letter dated 27.07.2009 issued from plaintiff to Commissioner MCD is Ex.Pw1/4,
(v) Copy of letter dated 18.12.2009 referred to in the affidavit as Ex.PW1/5 was only marked as Mark C,
(vi) Letter dated 08.01.2010 issued by defendant to plaintiff sought to be exhibited as Ex.PW1/6 was also only marked as Mark D,
(vii)Copy of letter dated 03.02.2010 sought to be exhibited as Ex.PW1/7 was marked as Mark E,
(viii) Letter dated 23.08.2010 was exhibited as Ex.PW1/8,
(ix) Letter dated 08.09.2010 was exhibited as Ex.PW1/9,
(x) Copy of notice u/s 478 MCD Act issued by plaintiff to defendant along with its postal receipts were Ex.PW1/10.
C.S. No. : 537/14/11 page 10 of 24 These documents were specifically objected to on behalf of defendant MCD.
30. Mr. M.S. Yadav, Executive Engineer, Maintenance Division III, South Delhi Municipal Corporation, Najafgarh Zone, Delhi was examined on behalf of defendant as DW1 on his affidavit dated 31.08.2015 Ex.DW1/A, and besides he relied upon following mentioned documents as Ex.PW1/1 to Ex.PW1/6 in this affidavit.
31. Documents sought to be exhibited as Ex.DW1/2 was photocopy but was bearing original signatures and was thus exhibited, subject to mode of proof.
32. Document sought to be exhibited as Ex.DW1/5 (Colly), though original was produced, even original was only a sheet from the computer, bearing no signatures even and much less any certificate u/s 65 B of the Indian Evidence Act. Document perse not admissible in evidence and was de exhibited and only marked as Mark D1X5.
33. DW2 Sh. V.P.Dahiya, Executive Engineer (Maintenance) DivisionIII, South Delhi Municipal Corporation, Najafgarh Zone, New Delhi was examined on his affidavit Ex.DW2/A. He relied upon some documents as already tendered through DW1.
34. Final arguments were addressed on behalf of plaintiff, while none appeared on behalf of defendant.
35. Now I proceed to decide the case on the basis of material on record and in the light of the arguments so addressed. My issuewise findings are as under.
C.S. No. : 537/14/11 page 11 of 24 Issue No. 1:Whether the suit of th plaintiff is barred u/s 477/478 of DMC Act, 1957, for want of the service of the statutory notice upon the defendant?OPD
36. Defendant has raised the objection that a suit is barred under the provisions of section 477/478 DMC Act, 1957 for want of service of statutory notice upon the defendant. However, the objection as raised is without any substance and in complete disregard of the material on record, in as much as the copy of the notice dated 01.10.2010 had already been filed by the plaintiff at the initial stage of this case and further it was duly proved at the evidence stage alongwith the postal receipts showing its dispatch and all of which were Ex. PW1/10 (Colly three documents). The postal receipt on record mentioned the addressee as Commissioner, MCD, Town Hall,New Delhi and going by this,the presumption under section 27 of General Clauses Act is raised regarding the due receipt of the said notice by the MCD. The objection is devoid of merits and same is rejected. Issue No. 1 is accordingly disposed of.
37. Issue No. 2:Whether the plaintiff is entitled to a decree of recovery of Rs.593325/ in favour of the plaintiff and against the defendant?OPP C.S. No. : 537/14/11 page 12 of 24
38. The plaintiff in order to establish his entitlement was basically required to prove that, he had completed the work assigned to him and that upon completion of the work, he had given a written intimation in the form of a completion report to MCD, but on this most material aspect of the case, the plaintiff has faltered, in as much as, inspite of the repeated query by the court even during the course of arguments, the plaintiff was not able to point out to any such document on the judicial record, by which he could say that he had given a written intimation to the defendant about the completion of the work.
39. Ld. Counsel for the plaintiff himself has relied upon the general conditions of the work contract issued from MCD and he has placed the same on record.
40. Clause 8 of the said terms provides that, within ten days of the completion of the work, the contractor shall give notice of such completion, to the Engineer Incharge, and within 30 days of the receipt of such notice, the Engineer Incharge shall inspect the work, and if there is no defect in the work, he shall furnish the contractor with a final certificate of completion, otherwise a provisional certificate of physical completion indicating defects (a) to be rectified by the contractor and / or (b) for which payment will be made at reduce rate, shall be issued.
41. It is further very clearly specified, that no final certificate of C.S. No. : 537/14/11 page 13 of 24 completion shall be issued, nor shall the work be considered to be complete, until the contractor shall have removed from the premises, on which the work has been executed, all scaffolding, surplus materials, rubbish and all huts and sanitary arrangements required for his / their work for the people on the site in connection with the execution of the works, as may have been erected or constructed by the contractor and cleaned of the dirt from all wood work etc. and not until the work shall have been measured by the Engineer Incharge.
42. The said clause further provides that if the contractor fails to comply with the requirements as to the removal etc., the date fixed for completion for work, the Engineer Incharge may at the expense of the contractor remove such scaffolding etc. as he thinks fit and the contractor shall have no claim in respect thereof.
43. In the present case, the plaintiff and Ld. Counsel, during the course of final arguments, conceded that there was no such completion report or even any letter written by the plaintiff to the MCD, regarding completion of the work, and they have not even offered any explanation for not having written to the MCD upon the alleged completion of the work, even on the face of it.
44. The very first letter that the plaintiff seems to have issued to MCD is Ex. PW1/4, which is dated 27.07.2009, whereas he claims to have completed the work way back in the year 2008. If his claim was C.S. No. : 537/14/11 page 14 of 24 indeed genuine, there is no explanation forthcoming about this entire gap of one year and it is not understandable, as to why the plaintiff straightway resorted to sending his grievance regarding non payment of his bill, straightway to the Commissioner, MCD instead of first having submitted his completion report in the year 2008 itself.
45. No doubt the plaintiff narrates in this letter, and refers to the past events, claiming therein, that he had completed the work on 05.12.2008 and even though he goes on to narrate certain events as alleged by him, regarding some dispute with the previous executive engineer Mr. Pawan Gupta, and certain events resulting there from, leading upto the nonpayment of his dues; that still cannot be a substitute for the first intimation letter about completion.
46. Even otherwise, there is no sequence of events made out in the story of the plaintiff. It would not be starting with the complaint about non payment by a letter addressed to the Commissioner, straightway, one year later, without even having submitted any completion report, as required, as per the standard terms and conditions, would even otherwise, be required in any case of work contract.
47. When the hirer of service itself, is not even made aware, that the work has been completed, it is not understandable, as to how it would be measured and how bills of any contract can be cleared, without any such information and compliance of the necessary procedure. Be it the case of MCD or for that matter any other private C.S. No. : 537/14/11 page 15 of 24 hirer of service also.
48. During the course of arguments, Ld. Counsel of plaintiff tired to address certain arguments, which seemed almost irrelevant and only an attempt to divert the crux of the issue and the query of the court being put repeatedly on this aspect. The query was repeatedly avoided by Ld. Counsel of the plaintiff and ultimately, the plaintiff only starting narrating some story about some quarrel having taken place, with the same AE or JE Mr. Pawan Gupta. He was not able to give any specific reply, as to whether any completion report was or was not submitted. Ultimately, he had to concede as per record that no such report had been submitted at all.
49. Ld. counsel of the plaintiff referred to a document Ex.PW1/3, collectively, the first page of which is a letter on the letterhead of one firm under the name and style of Vikas RMC (readymade concrete) addressed to the plaintiff, whereby the said firm has dispatched some design mix proposition as used by them in their RMC, as per the Indian standards etc.
50. It is not understandable, as to how on earth, this document would be relevant to the controversy between the parties. The sole controversy was whether plaintiff had been paid for the work or not. What was to be established was that the work had been completed. It was not the defence of defendant, that the work was not satisfactory, or the material was not good. The defense raised by them was only that the C.S. No. : 537/14/11 page 16 of 24 work had been done only upto 50% and therefore no final bill could have been cleared. In the light of this, this document was nothing except a document between the plaintiff and a third party from whom he might have intended to have purchased the material. How it concerned the question of completion of work, could not be addressed during arguments inspite of specific clarification sought, and therefore this document has to be ignored.
51. Once again, the other pages of this document Ex.PW1/3, collectively, are all delivery challans in respect of the delivery of readymixed concrete to the plaintiff. On the same reasoning, these pages of the documents need to be ignored as they do not relate to the question of completion of work at all.
52. The next document Ex.PW1/4, was a letter, already referred and discussed above, which had been issued by the plaintiff for the first time, after one year of the alleged date of completion of the work, addressed to the Commissioner of MCD, harboring his grievance of non payment. For the reasons, already discussed, this letter does not at all, establish that the work had been completed on the date alleged by the plaintiff, or for that matter whether it had at all, been completed even on any other date, whatsoever.
53. The next document Ex.PW1/8, is once again a follow up/a reminder of the earlier letter, above discussed. This reminder letter is dated 23.08.2010, once again, harboring the grievance of non payment and C.S. No. : 537/14/11 page 17 of 24 does not assist the plaintiff in establishing the completion of work, as claimed by the plaintiff.
54. Ex.PW1/9 dated 08.09.2010, on the face of it, once again is a unilateral correspondence from the side of the plaintiff and only a reminder about the payment, and does not help the plaintiff to establish that he had actually completed the work.
55. Document Ex.PW1/10, is a copy of legal notice which the plaintiff had issued and it cannot be disputed that it was not served, in view of the postal receipt, also exhibited by the same number.
56. However, apart from this, the plaintiff has not been able to tender any of other document and none of them throw any light on the sole controversy involved in this suit, regarding the completion of the work.
57. What was required to be proved by the plaintiff was simply the completion report submitted by him to the MCD. Secondly, the measurement taken jointly by him and JE/Executive Engineer, and the endorsements showing that JE/Executive Engineer were satisfied with the same.
58. However, the plaintiff has not even, bothered to prove any such completion report, either, as envisaged by the clause8 of the work contract standard terms and conditions, or for that matter, even any other kind of completion report in January, by way, even of a single letter. There is not a piece of paper showing that the completion of C.S. No. : 537/14/11 page 18 of 24 work had even intimated to MCD, as required. Accordingly, the plaintiff also could not prove any such measurements, as required.
59. Documents tendered on behalf of defendant i.e. Ex.DW1/1, is a proposal of the work alongwith the proposed sketch, Ex.DW1/2 is the schedule and the sketch of work, Ex.DW1/3, agreement, Ex.DW1/4 is the actual work order. Except these, there are no other documents relied upon by the defendant.
60. It was nobody's case hat the rates or the schedule and the specification, were different, and therefore these documents do not have much relevance and need not be considered at length, as the only question involved was, whether the plaintiff had, or had not, completed the work, and the onus, squarely lay upon the plaintiff, to show, that he had completed the work, in as much as, he could have proved only by submitting the work done completion report, and secondly the measurement book, neither of them had been proved by the plaintiff and plaintiff totally failed to discharge the onus on the basic question involved.
61. As regards Ex.DW1/6, colly., even if it be taken, that this document of the defendant itself. This letter is only a photocopy of the measurements provisionally taken and this shows that the date of commencement of the work was till 05.11.2008, whereas the plaintiff in his plaint has claimed, that he had completed the work on 05.12.2008 itself i.e. within 30 days. However, this copy of C.S. No. : 537/14/11 page 19 of 24 measurement does not reflect any date of completion of the work whatsoever and the said column is left vacant.
62. There seem to be some more documents on the judicial file, which are only photocopy documents, and are not admissible in evidence and they just remained marked documents relied upon, not proved. However, it was not in dispute, that the work contract was awarded after accepting of the tender submitted by the plaintiff, and it was only that the objection as raised was that the work had not been completed.
63. Therefore, neither the terms and conditions were in dispute nor any other documents were in dispute, or lacking in this case from the side of the plaintiff but even far from proving, that he had submitted any work completion report to MCD, he has not even pleaded this fact anywhere, in this plaint, that he has even submitted work completion certificate to MCD. All that, he has pleaded was that the work has been completed and he has been denied payment.
64. Ld. Counsel of the plaintiff also referred to some queries sent by the plaintiff to the PIO/Information officer, MCD regarding the status of his application dated 27.07.2009. Ld. Counsel for the plaintiff, thereafter contended that these queries also remained unreplied. They were only forwarded to another department/zone and ultimately they were not replied.
65. This query under the RTI, regarding the status of his application and C.S. No. : 537/14/11 page 20 of 24 other queries regarding grievance in respect of non payment of the bills, also does not help the plaintiff, at all, as even this does not refer to any work completion report that he had submitted to the MCD, and instead, he straightaway, refers to his letter, which is more like a complaint dated 27.07.2009, already discussed above, at length.
66. These letters sent under RTI, even if taken to be admitted documents, in view of letter dated 07.01.2010, still, it does not help the case of the plaintiff in any manner whatsoever, to prove that he had actually completed the work. At the end of the arguments, plaintiff and Ld. Counsel have conceded that they have not submitted any such work completion report to MCD.
67. There is an original measurement book having been filed in the court but nothing has been referred during final arguments but even though, same is perused, and all that it goes to show is that at one point of time at one stage of work, the plaintiff has not accepted the measurement. As per the condition of the work contract, measurement is to be taken throughout the progress of the work, and as such this does not imply that the work measurement was taken at the final stage.
68. As per the work order, the time for completion of work was prescribed as one month after 10th day of issue of the work order. The work order was dated 03.10.2008 and therefore, it was supposed taken to be completed by 03.11.2008.
C.S. No. : 537/14/11 page 21 of 24
69. Further replies of the plaintiff/PW1, rather admissions, during cross examination, put the last nail into the coffin. Reference is had to the relevant portion as under: "I cannot admit or deny that the work as I had executed is entered into in the measurement book maintained by the Department as I have no access thereto.
.................. It is correct that first running bill amounting Rs.1,90,752/ was prepared in December, 2008 and was put to me and it is correct that I had denied to append my signature thereupon (Vol. It was not in the true amount. ...........I did not file any written request at that time but later on I did so. ................At this stage the document i.e. measurement book no.21206 is shown to the witness in its page no.10 where some hand written entry is reflected thereupon on the portion marked as mark 'A' and on being asked the witness accepted this hand written entry to be in his hand and signed by him beneath thereto. The measurement book photocopy is marked as mark 'X'. I had not asked the defendant for any completion certificate. ............ Date of the completion of the work was the year, 2010. It is incorrect to suggest that the assigned work was to be completed by 04.12.2008. .............. I do not remember whether or not I had submitted any bill pertaining to the payment of the work done by me; with the defendant department."
70. No doubt the defendant itself has also produced and referred to the entries in measurement book by referring them during the cross examination of PW1, and therefore is to be read as an admitted document in evidence, but inspite of that, plaintiff has not been able to give any viable explanation as C.S. No. : 537/14/11 page 22 of 24 to why he did not accept the said bill for part of the work.
71. Infact towards end of his testimony, the plaintiff has made almost a mess of his own story, as he has even contended that the work was to be completed by December, 2008, and he has gone on to claim that the work was completed in the year 2010. This itself was even self contrary to his own document, about non payment of dues to, which was sent to the Commissioner of MCD dated 27.07.2009 itself.
72. Further, the plaintiff has replied that he cannot admit or deny, whether he had raised any bill or not for the alleged final work.
73. Not only, the plaintiff has failed to discharge his onus, but also failed to meet the cross examination even, and has destroyed his own case. There is no reason as to why, he would have been entitled to payment as claimed by him for the entire work done. On the contrary, a contractor leaving work in the middle, as being claimed by defendant MCD, as appears so in the present case, defendant MCD rather would have been burdened with added cost on the account of fresh contract being given to any other contractor. In these circumstances, as plaintiff has failed to prove, that he had completed the whole work, Issue No.2 is accordingly decided against the plaintiff.
Issue No.3: Whether the plaintiff is entitled to any interest on the suit amount? If so, at what rate and for which period?OPP
74. In view of my findings on Issue No.2 above, this issue is rendered infructuous and is disposed of accordingly.
C.S. No. : 537/14/11 page 23 of 24
Issue No.4: Relief.
In view of discussion held above, the suit is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on 22.07.2016 (SUJATA KOHLI) Additional District Judge, Central, Delhi.
C.S. No. : 537/14/11 page 24 of 24