Delhi District Court
Rajesh Kumar Gupta Proprietor Of M/S ... vs Municipal Corporation Of Delhithrough ... on 2 September, 2024
IN THE COURT OF AMIT KUMAR : DISTRICT JUDGE
(COMMERCIAL)-08
TIS HAZARI COURTS, CENTRAL: DELHI
(Commercial Case No. 1122/2023)
CNR No. DLCT01-010231-2023
RAJESH KUMAR GUPTA
PROPRIETOR OF
M/S. BALAJI & ASSOCIATES,
D-11/51, SECTOR-8,
ROHINI, DELHI-110085
Phone:- 9311040159, 9310737272
Email:- [email protected] .....PLAINTIFF
VS
MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER
4th Floor, CIVIC CENTRE, MINTO ROAD,
NEW DELHI-110001 ....DEFENDANT
Date of institution of case : 28.07.2023
Date of arguments : 05.08.2024
Date of pronouncement of judgment : 02.09.2024
JUDGMENT:
1. Present is a suit seeking recovery of Rs. 13,25,308/- 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 was awarded work order no. 428 dated 22.02.2019 for improvement and development of boundary wall of Balmiki Mandir wala Park, L- Block, Shakurpur, JJ Colony, Kohat Enclave. It is claimed that the plaintiff completed the work order to the satisfaction of defendant without any negative mark and visited the officials of defendant for preparation and submission of the bills of the work order. Defendant completed the final measurement of the work in -1- the measurement book and the same was accepted by the plaintiff and thereafter, first and final bill pertaining to the above said work order was prepared and accepted by the plaintiff and the defendant passed the bill on 29.08.2019 for an amount of Rs. 8,23,824/-. The plaintiff had also deposited Rs. 79,716/- as security deposit + earnest money. The defendant also withheld an amount of Rs. 10,000/- in the passed bill. In the suit, the plaintiff has claimed the principal amount of Rs. 8,33,824/- and the earnest money and security amount of Rs. 79,716/- alongwith interest @ 12% per annum w.e.f. 29.08.2019 till 31.05.2023 of Rs. 4,11,768/-.
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 17 and 45 of the General Contract Clauses (GCC) and 4B of the Work Order and therefore, is not entitled to suit amount. It was stated that the plaintiff did not submit labour clearance certificate as required. It was claimed that suit is pre mature as submission of bill is 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.
4. On the pleadings of the parties, following issues were framed on 27.03.2024:
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 -2-
3. Whether the plaintiff failed to fulfill the terms and conditions of the work order and GCC? If yes, to what effect? OPD
4. Whether the plaintiff failed to seek extension of time in completing the work order? If yes, to what effect? OPD
5. Relief.
5. The plaintiff to prove its case examined himself as PW1 whereas the defendant examined its Assistant Engineer 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, copy of the first and final bill as Ex. PW1/2, legal notice as Ex. PW1/3, attested copy of the measurement book as Ex. PW1/7 and attested copy of the demand of fund raised by the defendant with Head Quarter, MCD as Ex. PW1/8. Ex. PW1/7 and PW1/8 were filed by the defendant on the application of the plaintiff.
8. In the brief cross examination, the witness admitted that all the terms and conditions of the work order were accepted by him. He filed the final bill alongwith measurement with the defendant but no acknowledgement was given. He did not submit the labour clearance certificate. He denied the suggestion that suit is not maintainable for want of compliance of the terms and conditions of the GCC and for not submitting the labour clearance certificate.
-3-9. The defendant witness in his examination in chief reiterated the contents of the written statement and proved on record the notice inviting tender as Ex. DW1/1, the work order Ex. DW1/2 and the terms and conditions of the work order and GCC as Ex. DW1/3. In the cross examination, he admitted that the plaintiff completed the entire work to the satisfaction of the defendant but no money was released. He admitted that bill has been passed at the end of the defendant. Measurement book was prepared by the JE on the basis of day to day work done by the contractor. The work was completed by the plaintiff as per NIT condition and specification. No labour complaint has been received so far by the department. The material used by the plaintiff was tested in the lab. The bill prepared by the defendant was accepted by the plaintiff. The bill thereafter was forwarded to head quarter for payment. The bill was passed on 29.08.2019 and no payment has been made to the plaintiff including the security amount.
10. It was argued by Ld. Counsel for the plaintiff that the plaintiff completed the work 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 was 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 bill amount, refund of security and earnest money with interest.
11. 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 judgement 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:
12. As far as the execution of the work order is concerned, the same is undisputed. There was no delay in execution of the work as DW1 admitted in the cross examination that the work was completed by the plaintiff as per NIT conditions and specifications and further the material used by the plaintiff was tested in Municipal as well as independent lab. No labour complaint in respect of this work order is pending. The first and final bill was passed on 29.08.2019. 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 terms and conditions of the work order and GCC.
13. 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 bill only on his letter head and only in his handwriting. The plaintiff proved on record the first and final bill passed by the defendant as Ex. PW1/2. The bill bears the signatures of the plaintiff at the relevant space provided in the bill. It means that the plaintiff accepted the bill passed by the defendant and signed the same as token of acceptance. DW1 admitted in the cross examination that the bill was prepared on -5- the basis of site inspection and measurement book. If that is so, then what was the requirement of the plaintiff to submit the bill. Otherwise also, in the judgement 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 judgement, the defendant has failed to comply with these directions. The defendant cannot claim the compliance of this judgement 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 judgement, it cannot be argued that the plaintiff should diligently comply with the directions of this judgement. 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 judgement. The plaintiff, therefore, is entitled to the bill amount.
14. Coming to the aspect of return of the security deposit, it was argued for the defendant that the plaintiff did not submit the labour clearance certificate as per clause 45 of the GCC and therefore, is not entitled to the refund of security amount. In this regard, cross examination of DW1 is relevant. DW1 admitted in the cross examination that no labour complaint is pending. As per record, the defendant passed the bills in August, 2019 and almost five years have passed since then. When no labour complaint is pending against this work order, the defendant cannot withheld the security deposit only because there is no labour clearance certificate.
-6-15. Coming to the aspect of interest, the plaintiff has claimed interest @ 12% on the entire amount from 29.08.2019 i.e. the date of the passing of the bill. 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 judgments, the plaintiff is entitled to interest on the bill amount. The plaintiff, therefore, shall be entitled to interest @ 9% per annum on the bill amount of Rs. 8,33,824/- from 29.05.2020 till realization and interest @ 6% on the security deposit of Rs. 79,716/- from the date of the suit till realization. The plaintiff has, therefore, proved the issues in his favour as discussed above.
ISSUE NO. 3:
16. 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 final bill. As already discussed, the bill Ex. PW1/2 bears the signatures of the plaintiff and was passed by the defendant after completion of all the formalities as admitted by DW1. DW1 admitted in the cross examination that the bill was cleared after going through all the relevant documents like -7- measurement book, site inspection etc. 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.
ISSUE NO. 4:
17. The onus of proving this issue was on the defendant. DW1 in the cross examination admitted that work was completed by the plaintiff as per tender conditions and specifications. It is nowhere claimed in the affidavit of evidence that there is delay in execution of the work. The defendant, therefore, has failed to prove the issue that the work was not completed in time or that the plaintiff failed to seek extension of the time. The issue is decided accordingly.
RELIEF:
18. In view of my finding given on the above said issues, the plaintiff shall be entitled to a decree for a sum of Rs. 9,13,540/-. Plaintiff shall also be entitled to interest @ 9% per annum on the bill amount of Rs. 8,33,824/- from 29.05.2020 till realization and interest @ 6% on the security deposit of Rs. 79,716/- from the date of the suit till realization.
19. Plaintiff shall also be entitled to the cost of the suit.
20. Copy of the judgment be sent to both the parties by electronic mode, if available or otherwise.
21. Decree sheet be prepared.
22. File be consigned to Record Room. Digitally signed by AMIT AMIT KUMAR KUMAR Date:
2024.09.02 14:34:11 +0530 (AMIT KUMAR) District Judge, Comm. Court-08 Central, Tis Hazari Courts Extension Block, Delhi/02.09.2024 -8-