Indian Kanoon - Search engine for Indian Law

Delhi District Court

S.L. Arora vs . The Commissioner Of North Delhi ... on 23 September, 2021

         S.L. Arora Vs. The Commissioner of North Delhi Municipal Corporation




               IN THE COURT OF MS. COLETTE RASHMI
              KUJUR: ADJ-10: TIS HAZARI COURTS: DELHI.


        CNR NO.:- DLCT01-008180-2017
        SUIT NO.:- 250/17
        UNIQUE CASE ID NO.:- 2028/17

        IN THE MATTER OF :-

        Sh. S.L. Arora
        S/o Sh. Bishan Dass
        Govt Parking Contractor
        At shop no. 2, Slum Market,
        Near H.P. Petrol Pump,
        G.T. Road, Shahdara, Delhi-32.
                                                                   ....Plaintiff.

                                       VERSUS

        The Commissioner
        North Delhi Municipal Corporation
        16th floor, Civic Centre,
        New Delhi-110002.
                                                                 ....Defendant


                Suit for recovery of Rs. 5,69,990/- along with
                        pendentelite & future interest.

        Date of Institution of the Suit                          : 26.05.2017
        Date on which Judgment was reserved                      : 22.09.2021
        Date of Judgment                                         : 23.09.2021

                             ::- J U D G M E N T -::




Page 1 of 9                                                      CS no. 2028/17
          S.L. Arora Vs. The Commissioner of North Delhi Municipal Corporation


   1.

The plaintiff has filed the present suit for recovery of Rs.

5,69,990/- along with pendent lite and future interest with cost.

2. Succinctly, the facts, as stated by the plaintiff in the suit, are that plaintiff is a government parking contractor and has been running various government parking sites as allotted to him.

3. In the present matter the defendant allotted a parking site at Parking Tibetan Market, Monastery to the plaintiff on temporary basis for a monthly license fee @ 3,62,000/- plus TCS 2,244% for a period of one month from 20.12.2014 to 19.01.2015 vide letter dated 19.12.2014. The plaintiff accordingly, deposited a sum of Rs. 3,70,123/- with the defendant in advance but the said parking site could not be operated due to religious factors as near the parking there is a mandir and a Goshala Samiti where the devotees visiting the site did not pay parking charges for their vehicles and create problems.

4. It is the case of the plaintiff that after having taken possession the plaintiff became aware of the problems and immediately brought all the facts to the knowledge of the concerned officials of the defendant. As per the plaintiff, defendant was requested either to adjust their amount in some other parking site or refund the same to the plaintiff.

S.L. Arora Vs. The Commissioner of North Delhi Municipal Corporation The competent authority after verifying the problems at parking site vide its order dated 16.02.2015 cancelled the parking site allotted to the plaintiff and the above said parking made fee parking site till further orders.

5. Even after cancellation of the parking site and despite various requests of the plaintiff, defendant did not refund the amount to the plaintiff. Defendant were supposed to refund the amount of Rs. 3,70,123/- and is also liable to pay interest @ 24% per annum.

6. Thereafter, plaintiff served a legal demand notice dated 30.08.2016 upon the defendant, but the defendant neither replied to the same nor refunded any amount to the plaintiff. Hence, the present suit.

7. On being served with summons, the defendant appeared and filed the Written Statement.

8. The defendant has taken the preliminary objections that no cause of action has ever arisen in favour of plaintiff.

9. On merits, it was submitted that the parking site was cancelled along with other parking site in view of order dated 19.01.2015 passed by Hon'ble NGT in case titled Vardhman Kaushik vs. UOI & Ors OA no. 21/2014. It was denied that defendant was supposed to refund the amount Page 3 of 9 CS no. 2028/17 S.L. Arora Vs. The Commissioner of North Delhi Municipal Corporation of Rs. 3,70,123/- along with interest @ 24% per annum. Other contents of the plaint are denied and stated to be wrong.

10. In replication, contents of the WS are denied and contents of plaint were re-affirmed.

11. From the pleadings of the parties, following issues were framed:-

1. Whether the plaintiff is entitled for the recovery of suit amount ?OPP

2. Whether the plaintiff is entitled for interest ? If so, at what rate and for which period ?OPP.

3. Relief.

11. Thereafter, matter was fixed for PE and plaintiff examined himself as PW1. The witness has relied on the documents ExPW1/1 to 18. Upon cross examination the witness/ plaintiff has stated that it is correct that before offering bid for a parking site, it is incumbent upon a parking contractor to visit the said parking site. It is correct I visited and checked the parking site in question before offering bid for the same. The witness denied that the plea of non- payment of parking fees by the devotees of the adjacent mandir was afterthought or that the suit for recovery is sham. The witness also states that the parking site was never operated since the day of handing over of Page 4 of 9 CS no. 2028/17 S.L. Arora Vs. The Commissioner of North Delhi Municipal Corporation its possession to me.

12. Thereafter, PE was closed and the Defendant examined DW1 Ashok Kumar, Senior Secratariat Assistant, MCD, Delhi 33. The witness tendered his evidence by way of affidavit Ex DW1.A. In his cross examination, the witness averred that he had no personal knowledge about the temporary allotment of the parking site in question to the plaintiff at the time of allotment in favour of the plaintiff.

The volunteered that he could depose from the records available with him. Thereafter he stated that he had not brought the temporary allotment file in respect of the site in question. He stated, I have not inspected the parking site prior to July, 2017. He volunteered to say that the parking site in question has been cancelled. The witness admits that except the allotment letter and possession letter, no other document was executed between the parties regarding any terms and conditions....we have not filed any such document with respect to the terms & conditions on record. The witness further volunteered to state that the temporary parking site was allotted with the prior approval of the competent authority. We have not filed any such document on record. DW1 admits that the plaintiff had given a letter in writing to the defendant apprising therein the problems stated hereinabove for not getting the parking site operated due to the aforesaid reasons. According to the witness the parking site was cancelled on the basis of the order of Hon'ble NGT vide OA N.21/2014, Page 5 of 9 CS no. 2028/17 S.L. Arora Vs. The Commissioner of North Delhi Municipal Corporation dated 19.01.15 titled Vardhman Kaushik vs. UOI & Ors. The witness further admits that the parking site was cancelled on the basis of Ex PW1/12. He further goes on to state that the competent authority had cancelled the parking site allotted to the plaintiff and which order was conveyed to the plaintiff vide office order Ex PW1/12. He denied the suggestion that the defendant is liable to refund the monthly licence fee alongwith interest @24% p.a.

13. As there were no further witnesses to be examined the evidence was closed and final arguments were heard.

14. Considered.

15. The plaintiff has argued that he is entitled to the recovery of the licence fee as the parking was site was cancelled by the competent authority of the defendant after considering the difficulties spelled out by the plaintiff in his letters to the defendants office. The plaintiff has argued that the allotment was a temporary allotment and only for a months period. He had deposited an amount of Rs.3,62,000/- which are his life's savings which need to be saved. The plaintiff has further argued that the order of cancellation as an office order and not the order of the NGT as deposed by the witness. For this he has brought on record the cancellation order which is Ex PW1/12. It is argued that the defendant has no reason to refuse the refund of the licence fee as there were no terms and conditions nor has the defendant brought any on record.

16. The defendant on the other hand has argued that the Page 6 of 9 CS no. 2028/17 S.L. Arora Vs. The Commissioner of North Delhi Municipal Corporation cancellation order was by the order of the Hon'ble NGT dated 19.01.2015 therefore the plaintiff is not entitled to any refund. The plaintiff had taken possession of the parking site and once it is in is possession the MCD is not liable for the difficulties in running it. It is further argued that the plaintiff had inspected the site before making the bid and hence he was aware of the circumstances and conditions of the parking site. The plaintiff was also aware of the mandir and the monastery at the parking site, therefore, the defendant cannot be held responsible for the lack of profit.

17. It is not denied that the parking site was a temporary allotment. The letter issuing temporary allotment of Parking Tibetan Market, Monastery dated 19.12.2014 by NDMC/ defendant is Ex PW1/2. This letter awards the site to S.L.Arora on Temporary Monthly Licence Fee @3, 62,000/- + TCS 2.44% for a period of one month from 20.12.14 to 19.01.15.

18. It is not in dispute that the amount was duly deposited with NDMC. The receipts are exhibited. It is not denied that the full and vacant physical possession of the parking site was handed over to the plaintiff vide Ex PW1/6 dated and signed on 19.12.14 Dealing Asstt (RP Cell) and the Superintendent (RP Cell), NDMC countersigned by the plaintiff.

19. The defendant also does not deny having received the letter dated 23.12.14 and 26.12.14 from the plaintiff Page 7 of 9 CS no. 2028/17 S.L. Arora Vs. The Commissioner of North Delhi Municipal Corporation describing the problem in running the site and seeking cancellation of the allotment and again on 07.01.15 by speed post. Finally the parking site was cancelled by the defendant vide its office order dated 20.12.15. it reads Competent authority vide its order dated 16.02.2015 has cancelled the parking site allotted to the parking contractor S. L. Arora at Tibetan Market Monastery. The above authorized parking may be treated as a free parking site till further order/ arrangement. This issues with the prior approval of the competent authority.

20. Nowhere in the entire letter does it mention that the Hon'ble NGT has directed the cancellation of the parking site. The office order No. DC/RP CELL/2015/D-1073 is Ex PW1/12. It gives clear instructions for putting up a display board for free parking till further orders. How can it be assumed to be an order of the NGT? The office order dated 20.01.15 and 02.02.15 filed by the plaintiff and heavily relied by the defendant for showing cancellation of the parking by the NGT nowhere reflects the parking Tibetan Market Monastery. Further more, it is in continuation of office letter no. DC (RPC)/NDMC/2015/D-973 dated 20.01.15.

21. It is the contention of the defendant that the parking site was bid on an 'as is where is' basis therefore the plaintiff is not entitled for a refund. The plaintiff was indeed aware of the condition of the parking site, but has admittedly also informed about the law and order problem and other Page 8 of 9 CS no. 2028/17 S.L. Arora Vs. The Commissioner of North Delhi Municipal Corporation problems in running the parking site immediately. The delay if any was by the defendant in taking action despite knowing that the allotment was only for a month. It is also admitted by the defendant that no other document besides the allotment letter and the possession letter was signed by the parties, therefore there is nothing in the present case to assume that the licence fee was non- refundable.

22. The defendant cannot under these circumstances be allowed to take advantage of the plaintiff and his circumstances. It was the duty of the defendant also to bring correct facts before the court but the defendant has been wrongly harping upon the NGT order which is clearly not the basis of the order of cancellation of the parking site. In view of the above, the present suit is decreed in favour of the plaintiff and the defendant is warned and to desist from giving submissions unsupported by documents and submissions that are on the face of it false.

23. Accordingly, suit of the plaintiff is decreed for an amount of Rs. 5,69,990/- along with interest @ 6% per annum from the date of filing of the suit till the realization of the decreetal amount. Costs of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room. Announced in the open court (Colette Rashmi Kujur) on 23.09.2021. ADJ-10/Central/THC Delhi.