Delhi District Court
Sh. Munish Anand vs ) North Delhi Municipal Corporation on 24 October, 2016
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
CS17459/2016
Sh. Munish Anand,
Sole Proprietor of M/s Durga Builders,
26/30, Old Rajinder Nagar, New Delhi110060. .......Plaintiff
VERSUS
1) North Delhi Municipal Corporation,
through its Commissioner,
4th Floor, Civic Centre, Minto Road,
New Delhi110001.
2) The Executive Engineer (MII) KBZ,
North Delhi Municipal Corporation,
52 Block, Old Rajinder Nagar,
Near Karol Bagh Metro Station, New Delhi110060. ....... Defendants
SUIT FOR RECOVERY OF RS. 17,16,260/
Date of institution of suit : 06.10.2015
Arguments heard on : 04.10.2016
Date of decision : 24.10.2016
CS17459/2016
Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 1 of 23
JUDGMENT
1. The plaintiff, sole proprietor of M/s Durga Builders, a firm duly enrolled as Municipal Contractor with the defendants (erstwhile MCD) has filed the present suit for recovery of Rs. 17,16,260/ with interest from defendants. Adumbrated in brief the facts of the case of plaintiff are as follows. Contractor Plaintiff averred to have been awarded works of (i) Improvement to lane by pdg. RMC from H. No. B4/28 to B 5/33 and adjoining lanes in Inderlok in Ward C74/KBZ vide Work Order No. EE (MKBZ) II(EE XXIX)/SYS/ 20132014/171, dated 06.09.2013 for contractual amount of Rs. 2,48,898.00; (ii) Improvement Development of Gali No. 7 by providing RMC in Joshi Road in C 91/KBZ vide Work Order No. EE(MKBZ)II (EE XXIX)/SYS/2013 2014/173, dated 06.09.2013 for contractual amount of Rs. 7,92,574.00; and (iii) Improvement/Development of Gali No. 39 by providing RMC in Beadon Pura in C91/KBZ vide Work Order No. EE(MKBZ)II (EE XXIX)/SYS/20132014/174, dated 06.09.2013 for contractual amount of Rs. 6,36,908/. The time of completion provided in the work orders was 3 months. Plaintiff submitted that he completed entire work to the CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 2 of 23 satisfaction of EngineerinCharge/defendant no2 before the stipulated time. Earnest amount of Rs. 1,75,452.00 [i.e., (i) 25,662.00; (ii) 83,438.00; and (iii) 66,352.00] was also deposited by plaintiff at the time of submission of tender by plaintiff. After completion of works by the plaintiff, the defendant prepared first and final bills of plaintiff for sum of
(i) Rs.2,12,731.00 on 07.01.2014; (ii) Rs. 6,05,963.00 on 28.03.2014; and
(iii) Rs. 5,44,107.00, on 08.01.2014; totaling Rs. 13,62,801.00 after deducting Rs. 1,75,452.00 towards security of plaintiff.
2. Plaintiff had filed another civil suit, which is now bearing CS No. 17458/2016 (Old CS No. 422/2015), titled "Munish Anand Vs. North Delhi Municipal Corporation & Anr."; which was filed on 06.10.2015 and therein same were the dates of hearing as they are in the present matter. In said CS No. 17458/2016 (old CS No. 422/2015) the work orders in question are bearing numbers (i) 188 for which first and final bill was passed on 14.02.2014 of net amount of Rs. 3,55,745.00; (ii) 175 for which first and final bill was passed on 08.01.2014 of net amount of Rs. 6,28,299.00; and (iii) 192 for which first and final bill was passed on 14.02.2014 of net amount of Rs. 4,54,155.00, totaling Rs. 14,38,199/.
CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 3 of 23 With respect to these aforesaid three work orders Numbers (i) 188; (ii) 175; and (iii) 192 in the written statement filed in this case, there is an admission for passing of the afore elicited three bills. Similarly, in case CS No. 17458/2016 (old CS No. 422/2015) in the filed written statement the defendant has interalia elicited that for work orders numbers (i) 171 for which first and final bill was passed on 07.01.2014 for net amount of Rs. 2,12,731.00; (ii) 173 for which first and final bill was passed on 29.03.2014 of net amount of Rs. 6,05,963.00; and (iii) 174 for which first and final bill was passed on 08.01.2014 of net amount of Rs. 5,44,107.00, totaling Rs. 13,62,801/ were passed and sent to Head Quarter. It has been averred that despite passing of the aforementioned bills and several requests of plaintiff, the defendants neither released the payment nor showed any reason for withholding the said payments. As per clause9 of General Terms and Conditions of the defendants, the defendants were liable to release the payment of the passed bills within a period of three months. Plaintiff served legal notice dated 16.05.2015 upon the defendants through counsel, however, the defendants neither replied the same in any manner whatsoever nor complied with the same. Resultant had been this suit.
CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 4 of 23
3. Defendant interalia put forth in defence that suit was premature as agreement interse parties had specific condition that payment of bill will depend on availability of funds in particular head of account from time to time in North DMC. In terms of amended General Terms and conditions of tender documents, the payment of bills shall be made strictly on the queue basis i.e. first the past liabilities will be cleared and after that the release of payment for passed bills will be in order of the demand received at Head Quarter under particular head of account. Accordingly, delay in making the payment did not attract any liability and the plaintiff was not entitled to interest on account of delay in payment as per the amended rules incorporated by circular, which had been gone through by plaintiff who had participated in the tender and executed the work. Also is the defence of defendant that the security amount can only be paid after payment of the final bill, that too when the Contractor applies for refund of security amount and make necessary formalities in this regard including submission of the Clearance Certificate from the Labour Officer as per clause 45 of the General Terms and Conditions of the tender documents. Also was stated that the security deposited shall not be refunded before expiry of one year from the date of completion of CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 5 of 23 the work as per clause17 of the General Terms and Conditions of the tender documents. It is also the averment of defendants in written statement of case CS No. 17458/2016 (old CS No. 422/2015) in respect of work orders in question that the net payable amount to plaintiff was Rs. 13,62,801/ for which the first and final bills were passed and sent to the Head Quarter for payment on queue basis vide demand numbers (i) 62, dated 25.09.2014; (ii) 20, dated 04.04.2014; and (iii) 228, dated 20.02.2014 and same will be released by the Head Quarter on availability of funds under the particular head of account. Defendants denied that the plaintiff had been put to loss and interest. It has also been averred that the suit had been filed without just, legal, valid or justifiable cause of action having ever arisen in favour of the plaintiff and against the defendants for filing the present suit. Defendants denied to be liable to pay any interest or cost as alleged to the plaintiff. Rest of the averments of the plaint have been denied by the defendants in toto. Defendants prayed for dismissal of the suit.
4. During the course of proceedings, the plaintiff filed an application under Order XII Rule 6 read with Section 151 of The Code of CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 6 of 23 Civil Procedure (in short CPC) was filed by plaintiff on 08.01.2016, seeking judgment on admissions stating that a policy decision cannot entitle defendant to either not make payment or delay payment after admitting its obligation to make the payment. Since the outstanding payment of amount of first and final bills totaling Rs. 13,62,801/ stood admitted in unequivocal, unambiguous, unqualified terms by defendants in favour of plaintiff, after hearing the counsels for parties, the plaintiff was held entitled for judgment on admissions for recovery of sum of Rs. 13,62,801/ from the defendants under Order XII Rule 6 of CPC vide separate judgment dated 23.01.2016.
5. So far as the facets of security amount and component of interest, its period, rate or whether it is payable by defendants to plaintiff were concerned, they being the mixed questions of fact and law, required leading of evidence by the parties, so, the matter was fixed for framing of issues.
6. From the pleadings of the parties, following issues were framed vide order dated 08.02.2016 : CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 7 of 23 ISSUES
1)Whether the plaintiff is entitled for refund of earnest money/security deposit, as claimed, or not? Onus of proof on parties.
2)Whether the plaintiff is entitled for interest? If so, on what amount, at what rate and for which period? OPP
3)Relief.
7. In evidence, plaintiff examined himself as PW1 vide affidavit Ex PW1/A. PW1 relied upon documents viz., (i) copy of registration certificate, dated 07.10.2014 of plaintiff exhibited as Ex PW 1/1; and (ii) legal notice with acknowledgment of defendants exhibited as Ex PW1/2. PW1 was crossexamined.
8. Defendants examined Sh. Jagdish Chander, Assistant Engineer EE(MII), Karol Bagh Zone, Block52, Old Rajinder Nagar, New Delhi, as DW1 vide affidavit Ex DW1/A. DW1 relied upon documents viz., (i) work order no. 188, dated 06.09.2013 given Ex DW1/8; and (ii) work order no. 192, dated 06.09.2013 given Ex CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 8 of 23 DW1/10. DW1 was crossexamined.
9. I have heard arguments addressed by Sh. Satyendra Kumar Singh, Ld. counsel for plaintiff; Sh. Dharamvir Gupta, Ld. counsel for defendants; and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence and have also examined the record of the case.
10. My issue wise findings are as under : Findings on Issue No(1) Whether the plaintiff is entitled for refund of earnest money/security deposit, as claimed, or not? Onus of proof on parties.
In para5 of the plaint, it is the averment of the plaintiff contractor that following are the amounts of security deposited with the defendant Corporation : CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 9 of 23 Srl. Work Order No. Amount of Security No. deposit in Rs.
1. 171 25,662/
2. 173 83,438/
3. 174 66,352/ Total : 1,75,452/ In corresponding reply to para5 of the plaint in written statement, the defendants did not deny the fact of deposit of aforesaid security deposits. The fact of deposit of security sums aforesaid is deemed to be admitted by defendants.
11. In written statement, defendants averred that the earnest money/security amount can only be paid after payment of final bills, that too when the plaintiff applies for refund of earnest money/security amount and makes necessary formalities in this regard, including submission of the Clearance Certificate from the Labour Office as per clause45 of the General Terms and Conditions of the tender documents. In said para further was averred that the demand of final bills raised was CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 10 of 23 to be paid as per seniority on queue basis subject to availability of fund in the particular head of account.
12. It is also the argument of Ld. Counsel for defendant that the security deposited is not to be refunded before expiry of one year from the completion of the work.
13. It is own averment in paras3 and 4 of written statement of defendants that averments in para3 and 4 of the plaint are a matter of record. There is no specific denial of defendants, firstly of completion of the works to satisfaction of defendants and secondly completion of works before the stipulated time.
14. In the course of defendant evidence, the defendants did not prove the original or amended General Terms and Conditions of tender documents containing the afore referred clauses17 and 45 therein. Even, the originals of circular dated 19.05.2006 Mark DX14 and circular dated 10.06.2014 Mark DX12 were not produced in the deposition of DW1 or before or later and so even circulars Mark DX14 and Mark DX12 stand CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 11 of 23 not proved. Though, Mark DX12 has not been proved by defendants, yet for the sake of arguments only, even if the protection clauses17 and 45 contained therein are seen then they read as under : "Clause 17 : The security deposit shall not be refunded before expiry of one year from the date of completion of work.
Clause 45 : Security deposit shall not be refunded till the contractor produces clearance certificate from the Labour Officer."
15. The original clause45 in the General Conditions of contract for works of Municipal Corporation of Delhi, though not proved by defendants, but being considered just for the sake of arguments reads as follows : "Clause - 45 Release of Security deposit after labour clearance :
Security Deposit of the work shall not be refunded till the contractor produces a clearance certificate from Labour Officer. As soon as the work is virtually complete the contractor shall apply for the clearance certificate to the Labour Officer under intimation to the EngineerinCharge. The Engineer inCharge on receipt of the said communication, shall write to the Labour Officer to intimate if any CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 12 of 23 complaint is pending against the contractor in respect of the work. If no complaint is pending on record till after 3 months after completion of the work and/or no communication is received from the Labour Officer to this effect till six months after the date of completion it will be deemed to have received the clearance certificate and the security Deposit will be released If otherwise due."
16. Bare perusal of afore elicited clause45 reveals of no pre requisite for the contractor to deposit original G8 receipt issued at the time of deposition of earnest money amount. Notice Ex PW1/2, dated 16.05.2015 sent by plaintiff through Counsel for demand of payments for work done as well as security deposit amounts aforesaid was delivered by hand on 20.05.2015 in the office of defendant no1 Corporation and on the first page of the same there is appended the stamp impression of defendant no1 Corporation of date 20.05.2015 with receipt no. 9A. With regards to averments of service of notice Ex PW1/2, dated 16.05.2015 on defendants, as detailed in para14 of the plaint in corresponding para of the written statement of defendant, the defendants never denied of service of such notice. It is proved on record that on date of service of notice Ex PW1/2 i.e., on 20.05.2015, period much more than one year had passed after completion of the works in question. Defendants have not laid any CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 13 of 23 material on record nor proved the same nor of any fact of complaint pending against the plaintiff contractor in respect of the works in question before the Labour Officer, empowering defendant Corporation to withhold the security deposit of plaintiff contractor. It is own admission of the defendants that they had passed and sent the bills in demand to the Head Quarter for payment on queue basis vide demand numbers (i) 62, dated 25.09.2014; (ii) 20, dated 04.04.2014; and (iii) 228, dated 20.02.2014 and same will be released by the Head Quarter on availability of funds under the particular head of account. Accordingly, as on the date 20.05.2015, the date of service of notice Ex PW1/2 dated 16.05.2015, even period much more than reasonable period had elapsed after sending of the bills in demand. The assertion of defendants of passing of bills in demand and sending those bills in demand clearly laid down the facts that with respect to the cleared items in the bills in demand there was no dispute nor they contained any items in dispute, for quantities and rates as approved by the officers of defendant Corporation. Notice Ex PW1/2 served on 20.05.2015 on defendants contained demand interalia of refund of the security sums aforesaid within 60 days from receipt of the notice i.e., on or before 19.07.2015. Neither defendants CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 14 of 23 responded to the notice Ex PW1/2 nor refunded the security sum so withheld.
17. Security deposit/earnest money could have been retained by defendants as per clause17 of the General Terms and Conditions of the contracts/works of defendant Corporation only for duration of defect liability period of one year from the date of completion of work. In the fact of the matter, the afore elicited security deposit/earnest money has been even retained after expiry of defect liability period despite service of notice Ex PW1/2 on 20.05.2015.
18. Accordingly, plaintiff is entitled for refund of the earnest money/security deposit sums of Rs. 1,75,452/ from the defendants. Issue No. 1 is decided in favour of plaintiff and against the defendants accordingly.
Findings on Issue No(2) Whether the plaintiff is entitled for interest?
If so, on what amount, at what rate and for
which period? OPP
CS17459/2016
Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 15 of 23
19. As afore elicited, in terms of averments of plaint, Work Orders Nos. 171, 173 and 174, all dated 06.09.2013 were completed in three months each. This fact of the plaint have not been denied nor controverted in the written statement of defendants. It was argued by Ld. Counsel for defendants that as per the clause7 of General Terms and Conditions of contracts/works of Corporation, if the contractor does not prepare and submit the bills, then the EngineerinChief of Corporation will prepare the same and in such an event, the contractor will not be entitled to any claim whatsoever due to delay in payment including that of interest.
20. It is admitted fact of plaintiff PW1 that he did not raise any bill on completion of works in question. Be that as it may, it is own candid admission of defendants in written statement of CS No. 17458/2016 (old CS No. 422/2015) of preparation of bills in demand of amount Rs. 13,62,801/ for the works of Work Orders Nos. 171, 173 and
174. In written statement of CS No. 17458/2016 (old CS No. 422/2015) also was the averment of the defendants that defendant no2 had sent the bills in demand vide demand numbers (i) 62, dated 25.09.2014; (ii) 20, CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 16 of 23 dated 04.04.2014; and (iii) 228, dated 20.02.2014 and same will be released by the Head Quarter on availability of funds under the particular head of account.
21. It is the argument of Ld. Counsel for defendants that payment of bills depended upon availability of funds on particular head of account from time to time in North DMC and in terms of amended General Terms and Conditions of tender documents. The payment of bills were to be made strictly on queue basis i.e., first the past liabilities will cleared and after that the release of payment for passed bills will be in order of demand received at Head Quarter under particular head of account. So, as per Ld. Counsel for defendants, delay in making the payment did not attract any liability and plaintiff was not entitled to any interest on account of delay in payment as per the amended rules incorporated vide circular dated 19.05.2006, which had been gone through by plaintiff and participated in the Tender and executed the work.
22. Defendants failed to prove all the relevant clauses of the General Terms and Conditions of the tender documents as originals of CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 17 of 23 these were neither produced nor copies proved in accordance with law. Though, the defendants have not proved the General Terms and Conditions of the contract, yet for the sake of arguments only, if Mark DX12 is seen then following is the clause no. 7 specifying therein as : "Clause 7 : It says that if the contractor does not prepare and submit the bills, then the Engineerin Charge of MCD will prepare the same and in such an event, the contractor will not be entitled to any claim whatsoever due to delay in payment including that of interest"
23. Even in terms of said clause7, the contractor is not entitled to interest for the delay in payment on account of nonpreparation and submissions of bills. When read as a whole, said clause7 simply specifies of non entitlement of interest by contractor when he does not submit the bills after preparation and on that count the Engineerin Charge of Corporation prepares the bill. It does not mean that even after delay in preparation of the bills by the EngineerinCharge of Corporation, the Corporation will not be liable to pay interest for period later to preparation of bills by EngineerinChief for further unreasonable delay caused in making of payment of such bills to the contractor.
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24. In the cases of Jagbir Singh Sharma Vs. MCD & Ors. in CS (OS) 1797/2007; Sh. Ramkesh, sole proprietor of M/s Ramkesh Vs. MCD & Ors. in CS (OS) 1805/2007 and M/s Balaji Construction Company Vs. MCD & Ors., in CS (OS) 1806/2007; vide order dated 15.07.2008, Hon'ble Mr. Justice Sanjiv Khanna of our own High Court held that : "Once the defendantMCD admits its obligation to make the payment, the said payment has to be arranged for and budgeted for by them. The plaintiffs have no role to play in the said exercise. How the defendant manages their internal affairs is their own business."
It was also held therein that : "Section 46 of the Indian Contract Act, 1872 stipulates that where no time limit is specified, the engagement must be performed within a reasonable time"
Similar plea of defendant therein for making payments to said contractor as per their policy on "first in first out" (principle of FIFO in accountancy) was held to be lacking merits and premise and shorn of merits to grant leave to defend in summary suit.
CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 19 of 23
25. Defendants have not proved of there being in existence any queue for payment of bills for clearing the past liabilities first and then to release the payment of bills in question. No document has been proved by defendants specifying the order of demands received at Head Quarter under particular heads of account, including the demand for bills in question so received therein to make out what is the number of demand in question in said queue amongst of demands received at Head Quarter nor defendants have proved any fact on record what was the availability of funds at the Head Quarter of defendant Corporation to elicit there being nonavailability of funds for payment of past bills in question, elicited above. After the defendant Corporation admitted its obligation to make the payment by passing of the bills and sending of the demand to the Head Quarter for payment, it was the duty of the defendant Corporation to arrange for the said payment and/or budget it earlier or later. Plaintiff had no role to play in said exercise as to how the defendant Corporation manages its internal affairs as it is their own business. In terms of Section 46 of Indian Contract Act and as per the law laid in the cases of Jagbir Singh Sharma (supra) and Ramkesh (supra), when there is no time limit specified, the engagement must be performed within a CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 20 of 23 reasonable time. Notice of demand for payments of work done and security, interest of date 16.05.2015 Ex PW1/2 were served upon defendants on 20.05.2015, which date was much later to passing of any reasonable time. The works in question were performed in three months of the award of work. Defendants had no justifiable ground/premise to withhold the legitimate sums of plaintiff Contractor admitted to be payable by defendants Corporation for the works done or the security/earnest money.
26. In the case of Varinder Jeet Singh Vs. Municipal Corporation of Delhi & Anr., 2013 (134) DRJ 284, Hon'ble Ms. Justice Hima Kohli interalia held that : "15. It is settled law that if a person is deprived of the use of money to which he is legitimately entitled, he has a right to be monetarily compensated for the said deprivation. [Ref: (1992) 1 SCC 508: Secretary, Irrigation Deptt. Govt. of Orissa v. G.C. Roy; (2004) 5 SCC 65 : Ghaziabad Development Authority v. Balbir Singh, and (2009) 8 SCC 507 : Sri Venkateswara Syndicate v. Oriental Insurance Company Ltd. and Anr.] The object behind awarding interest to a party, who has suffered loss, due to a CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 21 of 23 legitimate deprivation of the enjoyment of the use of money that he was entitled to rightfully, is to balance the equities and while doing so, the facts involved in each case must be examined by the Court.
16. The statutory provisions with regard to payment of interest are laid down in Section 3 of the Interest Act, 1978, that provides that in any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, if the proceedings do not relate to a debt payable by virtue of a written instrument at a certain time, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable, then interest will be claimed, till the date of institution of the proceedings."
27. In view of Section 3 of Interest Act, 1978, the plaintiff is entitled to claim interest from the date 20.07.2015 (after expiry of notice period from 20.05.2015, the date of service of notice) till realization on outstanding liability of first and final bills totaling Rs. 13,62,801/ as well as on sum of Rs. 1,75,452/ of security. In the fact of the matter, having regard to nature of the commercial transaction between the parties the CS17459/2016 Sh. Munish Anand Vs. North Delhi Municipal Corporation & Anr. Page 22 of 23 plaintiff is accordingly held entitled for interest @ 7.5% per annum (current rate of interest on fixed deposits in bank) on aforesaid sums.
RELIEF
28. In view of my findings with respect to issues no. 1 and 2, the suit of the plaintiff is decreed in terms that plaintiff is held entitled for recovery of security sum of Rs. 1,75,452/ as well as interest @ 7.5% per annum w.e.f., 20.07.2015 on sum of Rs. 15,38,253/ (Rs. 13,62,801.00 + Rs. 1,75,452.00) till realization with costs from defendants. Decree sheet be prepared and file be consigned to record room.
Announced in open Court (GURVINDER PAL SINGH)
th
on 24 Day of October, 2016. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
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