Delhi District Court
Brig.Kulwant Singh (Retd.) Proprietor ... vs Union Of India And Anr on 15 July, 2024
IN THE COURT OF SH. BRIJESH KUMAR GARG,
DISTRICT JUDGE (COMMERCIAL COURT)-01 :
SHAHDARA, KARKARDOOMA COURTS: DELHI
CS (Comm.) No. 676/2022
CNR No. DLSH01-007834-2022
BRIG. KULWANT SINGH (RETD.)
Proprietor of 3105/KULWANT SINGH SECURITY AGENCY,
Having Office at Shop No. 3, III Floor,
Shiv Shakti Complex, East Vinod Nagar,
Delhi-110 091.
......Plaintiff
Versus
1. UNION OF INDIA
MINISTRY OF COMMUNICATION
Department of Posts, Through Secretary,
Postal Directorate, Dak Bhawan,
New Delhi-110 001.
2. THE SENIOR SUPERINTENDENT OF POST OFFICES
DEPARTMENT OF POSTS,
Delhi East Division, Krishna Nagar HO,
Delhi-110 051.
......Defendants
Date of institution : 08.12.2022
Date of final arguments : 07.06.2024
Date of Judgment : 15.07.2024
JUDGMENT
1. The present commercial suit for recovery of a sum of Rs.15,72,700/- (Rs. Fifteen Lakhs Seventy Two Thousand Seven Hundred Only), alongwith pendentelite and future interest, has been filed, on behalf of the plaintiff, wherein, it is stated that the plaintiff had retired from Indian Army, as Brigadier, and is CS (Comm.) 676/2022 page 1 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi running a security agency, under the name and style of '3105/Kulwant Singh Security Agency'.
2. It is further stated in the plaint that the defendant No.2 was in need of nine security guards, one each for its nine post offices, at Delhi East Division and needed only one security guard with arms (gunman) at its post office at Krishna Nagar HO, Post Office and accordingly, the plaintiff and defendant No.2 entered into an agreement, dated 23.12.2014, wherein, it was agreed that the plaintiff would provide the security services to the post offices of defendant No.2, at the approved rates/wages.
3. It is further stated in the plaint that the plaintiff had provided the security guards, on the request of the defendant No.2, since the year 2014 and they continued to perform the work diligently and to the complete satisfaction of the defendants and no complaint, whatsoever, of any nature was raised by the defendants, at any point of time.
4. It is further stated in the plaint that on the intervening night of 19/20.02.2017, a dacoity had taken place at Krishna Nagar, Head Post Office and a case FIR No.95/17 was lodged at PS Anand Vihar, u/s 395 IPC.
5. It is further stated in the plaint that the defendant No.2 conducted the investigation, but, failed to give any opportunity to the plaintiff to submit his version, and thereafter, issued a notice, dated 16.05.2018, wherein, the defendant No.2 levelled allegations against the security guards of the plaintiff and put the entire blame on the security guard provided by the plaintiff, CS (Comm.) 676/2022 page 2 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi despite of the fact that chowkidar of the defendant No.2 was also present at the time of the incident and the said chowkidar was absolved of all the charges.
6. It is further stated in the plaint that as per the specific duty assigned by the defendant No.2 to its chowkidar, he was required to stay inside the post office and to lock the door from inside, whereas, the security guard was required to stay outside and keys of the post office remains in possession of the chowkidar alone. It is further stated that the chowkidar of defendant No.2 was negligent in his duties and was sitting outside and had left the doors of the post office open.
7. It is further stated in the plaint that vide notice, dated 16.05.2018, the defendant No.2 demanded a sum of Rs.15,72,700/-, which was looted on 19/20.02.2017 by the dacoits, as reimbursement from the plaintiff, without any rhyme or reason and they refused to release the due payments of the plaintiff, with malafide intentions unless the plaintiff reimbursed the aforesaid looted amount to them.
8. It is further stated in the plaint that the plaintiff had disputed the claim of defendant No.2 and requested the defendant No.2, vide his letter dated 16.05.2018, to retain the aforesaid amount from the total dues to be paid to the plaintiff, as a provisional measure, pending finalization of dispute and release the balance payment. But, the defendant No.2 failed to release the due withheld amount to the tune of Rs.43,13,480/- and continued to pressurize the plaintiff to pay the looted amount.
CS (Comm.) 676/2022 page 3 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
9. It is further stated in the plaint that the plaintiff submitted a detailed reply, dated 14.09.2018, to the defendant No.2. But, the defendant No.2, again asked the plaintiff to reimburse the looted amount, vide letter dated 12.10.2018. Thereafter, vide letter dated 15.10.2018, the plaintiff asked the defendant No.2 to inform him about the consideration of his earlier submissions. Vide letter dated 01.11.2018, the defendant No.2 informed the plaintiff that the submissions of the plaintiff were not found convincing by the competent authority and vide letter, dated 17.01.2019, the defendant No.2, again asked the plaintiff to pay the amount of Rs.15,72,700/-.
10. It is further stated in the plaint that a detailed representation was also submitted by the plaintiff on 30.09.2019. But, despite representation, the defendant No.2 has failed to release the due payment to the plaintiff. Therefore, with no option left with the plaintiff, the plaintiff was forced to make the payment of the looted amount to the plaintiff, and thereafter, under protest and without prejudice, the said amount of Rs.15,72,700/- was deposited by the plaintiff vide cheque No.519306 dated 30.09.2019. It is further stated that after receipt of the aforesaid amount from the plaintiff, the defendant No.2 started releasing the withheld payment of the plaintiff and finally, the last payment was released to him on 13.07.2021.
11. It is further stated in the plaint that as per the terms and conditions of the agreement, the plaintiff may have been liable if any theft had taken place, but no liability can be fixed on the plaintiff in case of dacoity.
CS (Comm.) 676/2022 page 4 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
12. It is further stated that the plaintiff was forced to send a legal notice dated 22.07.2022, to the defendant. But, a false and evasive reply was given by the defendant No.2, on 16.08.2022. It is further stated that the defendant No.2 has wrongfully forced the plaintiff to pay the aforesaid amount of Rs.15,72,700/- and hence, the present suit for recovery of the said amount from the defendants.
13. After filing of the present suit, the summons of the suit for settlement of issues were duly served upon the defendants and accordingly, written-statement was filed on their behalf on 16.08.2023. In the written statement, it has been admitted that the defendants had entered into an agreement with the plaintiff, on 23.12.2014, under which, it was specifically mentioned in Para-3.1 that it would be the responsibility of the security agency to guard Krishna Nagar HO, and as per Clause 3.2 of the said agreement, it was the responsibility of the security agency to guard all the security check points at the entrance of the building or at any other security point, including roof of the building.
14. It is further stated in the written-statement that on the intervening night of 19/20.02.2017, a dacoity had taken place at Krishna Nagar HO, in which an amount of Rs.15,72,700/- was looted and a case FIR was lodged at PS Anand Vihar. It is further stated that as per the circle level inquiry report, on the intervening night of 19.20.02.2017, Sh. Munna Lal, MTS, was working as night chowkidar, alongwith one armed security guard of the plaintiff, at Krishna Nagar HO and both of them had their dinner in the delivery hall, and thereafter, left the doors open and CS (Comm.) 676/2022 page 5 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi were sitting at the main gate of the post office building and security guard provided by the plaintiff was sitting without his gun and was busy on his mobile phone. It is further stated that the security guard left his gun at the ATM room, located adjacent to the main entry gate, and at about 11 p.m., 7-8 dacoits, armed with weapons entered the post office building from behind, tied their hands and put them in the delivery hall and looted the cash and other items. It is further stated that the security guard had failed to perform his duty, as he was negligent and was sitting at the main gate, without his gun and was busy on his mobile phone. It is further stated that as per Para 5.2 of the agreement, dated 23.12.2014, it was the duty of the security agency to reimburse the government, of the loss sustained by the government, for any theft, breakage, mutilation or damage to any person or property in the course of execution of the services of the security agency. It is further stated that the bills of security agency were withheld, as the plaintiff was not depositing the looted amount worth Rs.15,72,700/- and the withheld bills were released, after the deposition of the looted amount by the security agency.
15. It is further stated in the written-statement that as per Para 3.8 of the agreement, it was the responsibility of the security agency to ensure that the office gates are properly locked after working hours, and specially during night, and no entry of any outsider was to be allowed, without specific approval of the competent authority.
CS (Comm.) 676/2022 page 6 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
16. It is further stated that the contentions raised by the plaintiff regarding forced payment is frivolous and the suit filed by the plaintiff is totally false, baseless and illegal, and therefore, the same be dismissed with heavy costs.
17. Rejoinder to the written-statement of the defendant was also filed, on behalf of the plaintiff, wherein, the contents of the written-statement were denied and the contents of the plaint have been reiterated and reaffirmed.
18. First case management hearing was conducted on 26.09.2023 and from the pleadings of the parties, the following issues were framed by the court, as under:
1. Whether the plaintiff is entitled to claim/recover an amount of Rs.15,72,700/- from the defendants, as claimed in the plaint ? OPP
2. Whether the plaintiff is entitled to claim pendente lite and future interest from the defendants? If so, at what rate and for which period ? OPP
3. Relief.
19. During the trial, the plaintiff has examined Sh. Kulwant Singh, proprietor of the plaintiff firm, as PW-1. Whereas, the defendants have examined Sh. Nikhil Jain, Sr. Superintendent of Post at its Delhi East Division, as DW-1 and Sh.Abhishek Kumar Singh, OSD to Minister for Railways, Communications, Electronics & IT, Govt. of India, the then Director Postal Services (Operations), Delhi Circle, New Delhi, who conducted the circle level inquiry, as DW-2.
20. After completion of trial, final arguments were concluded CS (Comm.) 676/2022 page 7 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi by Sh. Ravi Rai, Advocate, for the plaintiff and Ms. Mukta Arora, Advocate, for the defendants, on 07.06.2024. The Ld. Counsels for the parties have also filed their respective written arguments.
21. During the course of arguments, it was argued by the Ld. counsel for the plaintiff that the plaintiff is a security service provider and an agreement was executed between the parties for providing the security services to the defendants, at its various post offices under Delhi East Division, including Krishna Nagar Head Office, vide agreement dated 23.12.2014. He has further argued that the said agreement was executed initially, for a period of two years till 31.12.2017. However, the same was extended till the year 2021, under oral agreement and this fact was duly acknowledged and admitted by the defendants.
22. Ld. Counsel for the plaintiff has further argued that the plaintiff had provided one security guard, as per the requirement of the defendant No.2, at its Krishna Nagar head office and the duty of the security guard, provided by the plaintiff, was to guard the building from outside, and for inside security, the defendants have appointed their own watchman/chowkidar. He has further argued that the duty of the watchman/chowkidar, provided by the defendant, was to remain inside the main building by bolting/closing the main entrance to the building, from inside.
But, the said watchman of the defendants had not performed his duties properly and had not bolted the main building from inside, which has facilitated the dacoits to commit dacoity, easily on 19.02.2017. He has further argued that the dacoity was CS (Comm.) 676/2022 page 8 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi committed by eight armed dacoits, on the night of 19.02.2017 and accordingly, case FIR No. 95/2017 was also registered u/s 395 IPC, but, a single security guard was incompetent to protect the entire building of his own from such kind of offences and the agreement dated 23.12.2014, also does not cover the offence of 'dacoity'. He has further argued that the defendants had found their watchman/chowkidar guilty of dereliction of duties and accordingly, a fine of Rs.1 Lakh was also imposed on him and the same stands paid by the watchman, and therefore, the defendants cannot transfer their liability on the plaintiff.
23. The Ld. Counsel for the plaintiff has further argued that the defendants had also conducted an internal circle level inquiry, wherein, the various other deficiencies were also pointed out. But, during the said circle level inquiry, no opportunity was granted to the plaintiff to present his case and a biased circle level inquiry was conducted by the defendants, on the basis of which, the defendants had withheld the amount of about Rs. 43 Lakhs, which was due towards the plaintiff. He has further argued that the plaintiff deposited the claimed amount of Rs.15.72 Lakhs with the defendants, under protest, and thereafter, the aforementioned withheld payments were released by the defendants, to the plaintiff. He has further argued that vide legal notice dated 22.07.2022, the defendants were asked to release the payment of Rs.15,72,700/-, alongwith interest @15% per annum. But, the said payment has not been released by the defendants, till date.
24. The Ld. Counsel for the plaintiff has further argued that CS (Comm.) 676/2022 page 9 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi the plaintiff has proved his entire case, by leading reliable and cogent evidence and by filing the relevant documents on record. He has prayed that the suit of the plaintiff be therefore, decreed in its' favour and against the defendants, with interest and costs.
25. On the other hand, the Ld. counsel for the defendants has argued that as per various clauses of the agreement, dated 23.12.2024, it was the responsibility of the plaintiff to guard the entire building of Krishna Nagar head office, including its treasury, and it was the duty of the plaintiff to check all the entry points of the building. She has further argued that a circle level inquiry was also conducted regarding the incident of dacoity, which had taken place on 19.02.2017, in which, an amount of Rs.15,72,700/- was looted. She has further argued that as per the circle level inquiry report, Sh. Munna Lal, MTS, was working as night chowkidar, alongwith one armed security guard provided by the plaintiff, at Krishna Nagar head office and on the night of 19.02.2017, both of them had their dinner in the delivery hall and left the door opened and were sitting at the main gate of the post office building, without their gun and were busy on their mobile phones. The security guard had left his gun in the ATM room, located outside and adjacent to the main entry gate of the post office building and at around 11.00 p.m., 7-8 dacoits, with weapons, entered the post office building from behind and tied the hand of both, MTS and security guard, and put them in delivery hall and looted the cash and other items from the post office building. Thus, the security guard had failed to perform his duty, as he was negligent about the happenings around and was sitting at the main gate, without his gun and was keeping himself CS (Comm.) 676/2022 page 10 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi busy on his mobile phone.
26. The Ld. Counsel for the defendants has further argued that as per para 5.2 of the agreement dated 23.12.2014, the security agency/plaintiff was liable to reimburse the government/ defendant, for the losses sustained by the government for any theft, breakage, mutilation or damage to any person or property, in the course of execution of the services by the security agency. She has further argued that the bills of the plaintiff were withheld, as the security agency was not depositing the looted amount and once the security agency deposited the amount of Rs.15,72,700/-, vide cheque dated 30.09.20219, the withheld bills were released to the security agency.
27. The Ld. Counsel for the defendants has further argued that the Delhi Police had also submitted its report on the security standards at Krishna Nagar Post office and it was mentioned that the guards deployed at Krishna Nagar post office were not well trained, and therefore, the said report, duly incorporated at point No. 13.2.1 of the circle level inquiry report, indicates a clear breach of trust and contract agreement by the security agency and therefore, the security agency is fully liable for the monetary losses sustained by the government during the dacoity.
28. The Ld. Counsel for the defendants has further argued that the amount of Rs.15,72,700/- was recovered from the security agency as damages, apart from monetary losses, which the defendants suffered during the dacoity. However, during the arguments, the Ld. Counsel for the defendants has admitted that as per the circle level inquiry, various deficiencies were pointed CS (Comm.) 676/2022 page 11 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi out regarding the security at Krishna Nagar Post office and it was also found that the watchman/chowkidar Munna Lal, was also guilty of dereliction of duties, and accordingly, a fine of Rs.1 Lakh was also imposed on him and the same was also duly recovered from him. The Ld. Counsel for the defendants has prayed that the plaintiff has filed a false, baseless and illegal claim, and therefore, the same is liable to be dismissed with heavy costs.
29. I have carefully perused the case file and I have also given my considered thoughts to the arguments addressed by the Ld. Counsels for the parties. I have also perused the written arguments filed by the Ld. counsels for the parties. My findings on the various issues are as under:
Issue No. 1Whether the plaintiff is entitled to claim/recover an amount of Rs.15,72,700/- from the defendants, as claimed in the plaint ? OPP
30. The burden to prove this issue lies on the plaintiff and in support of its contentions, the plaintiff has examined himself as PW-1 and has filed his affidavit Ex.PW1/A, wherein, the plaintiff has reproduced the entire contents of the plaint. It has been reiterated that the plaintiff was running a security agency as proprietor of 3105/Kulwant Singh Security Agency, and an agreement was entered with the defendant No.2, on 23.12.2014, as the defendant No.2 was in need of nine security guards, one each for its nine post offices. It is also mentioned that the defendants had required only one security guard with arms CS (Comm.) 676/2022 page 12 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi (gunman), at the post office situated at Krishna Nagar and vide agreement dated 23.12.2014, it was agreed that the plaintiff would provide the security services to the defendants' post offices at the approved rates/wages of DGR, on the identified locations, and accordingly, the security guards were provided to the defendant No.2 since the year 2014 and they continued to work diligently and to complete satisfaction of the defendants.
31. In his affidavit Ex.PW1/A, he has reiterated that on the intervening night of 19/20.02.2017, a dacoity had taken place at Krishna Nagar post office, and accordingly, case FIR No.95/2017, was registered at PS Anand Vihar, u/s 395 IPC. A copy of the FIR has been placed on record as Ex.PW1/3. The fact of dacoity at the premises of Krishna Nagar post office on 19.02.2017 and registration of FIR, is an admitted fact and is not denied by the defendants.
32. In his affidavit Ex.PW1/A, he has also reiterated that during investigations, no opportunity was granted by the defendant No.2, and vide notice dated 16.05.2018, false allegations were raised against his security guard. It is further stated that the entire blame was put on his security guard, despite of the fact that the chowkidar/watchman of defendant No.2 was also present at the time of the incident and the defendant No.2 had assigned the specific duty to its chowkidar to remain/stay inside the post office and to lock the door from inside, while the security guard was to stay outside and the keys of the post office had also remained in possession of the chowkidar alone. It is also reiterated that the chowkidar of defendant No.2 was CS (Comm.) 676/2022 page 13 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi negligent towards his duties and was sitting outside and the doors of the post office were also left open by him.
33. In the affidavit Ex.PW1/A, it is also reiterated that vide notice dated 16.05.2018, Ex.PW1/4 (an admitted document of the parties), the defendant No.2 demanded a sum of Rs.15,72,700/- from the plaintiff, the amount looted by the dacoits on 19/20.02.2017, as reimbursement from the plaintiff and they also refused to release the due payments to the plaintiff, wrongfully, with malafide intentions, unless the plaintiff reimbursed the aforesaid amount of Rs.15,72,700/-.
34. It is also reiterated in the affidavit Ex.PW1/A that the defendant No.2 failed to release the withheld amount of Rs.43,13,850/-, despite request of the plaintiff, to release the due amount, after deducting the aforesaid amount of Rs.15,72,700/-, from the total dues. But, they continued to pressurize the plaintiff to pay the looted amount. Thereafter, a detailed reply to the letter dated 16.05.2018 was submitted by the plaintiff on 14.09.2018. But, the defendant No.2 again asked the plaintiff to reimburse the looted amount, vide letter dated 12.10.2018. A copy of the letters dated 19.09.2018 and dated 12.10.2019, have been placed on record as Ex.PW1/6 & Ex.PW1/7, respectively. These two documents are also not denied by the defendants.
35. It is further mentioned in the affidavit Ex.PW1/A, that vide letter dated 15.10.2018, the plaintiff had again asked the defendant No.2 to consider his earlier reply dated 14.09.2018. But, vide letter dated 01.11.2018, the defendant No.2 informed the plaintiff that his submissions were considered, but, were not CS (Comm.) 676/2022 page 14 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi found convincing by the competent authority and vide letter dated 17.01.2019, the defendant No.2 again asked the plaintiff to pay the amount of Rs.15,72,700/-. Copies of the letter dated 15.10.2018, 01.11.2018 and 17.01.2019, have been placed on record as Ex.PW1/8, Ex.PW1/9 and Ex.PW1/10 respectively. These documents were also not denied by the defendants.
36. It is reiterated in the affidavit Ex.PW1/A that vide representation, dated 30.09.2019, it was informed by the plaintiff to the defendants that as per the Clause 5.2 of the agreement dated 23.12.2014, the plaintiff was liable for reimbursement of the looted amount, only if, the loss sustained by the defendant was on account of theft, breakage, mutilation or damages. But, the FIR lodged by defendant No.2 was for dacoity only and therefore, the plaintiff was not liable to pay the aforesaid amount to the defendant No.2.
37. It is further mentioned in the affidavit Ex.PW1/A, that despite said representation, the defendant No.2 failed to release the due payment and continued to threaten the plaintiff that the due payments will not be released unless the looted amount was deposited by the plaintiff.
38. It is further stated in the affidavit Ex.PW1/A that with no other option, the plaintiff was forced to make the payment of the looted amount, and therefore, the plaintiff made the aforesaid payment, under protest, vide cheque No 519306 dated 30.09.2019, drawn upon Union Bank of India, for an amount of Rs.15,72,700/-. This fact of deposition of the amount of Rs.15,72,700/- by the plaintiff is also admitted by the defendants.
CS (Comm.) 676/2022 page 15 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
39. It is further stated in the affidavit, Ex.PW1/A, that after deposition of the aforesaid amount by the plaintiff, the defendant No.2 started releasing the withheld payment to the plaintiff, and finally, the last payment was released to him on 13.07.2021.
40. It is further stated in the affidavit, Ex.PW1/A, that a dacoity has taken place at the post office of the defendant, wherein, 7-8 persons had over powered the guard and the employee of defendant No.2 and therefore, no liability can be fixed on the plaintiff, in case of dacoity.
41. It is further stated in the affidavit, Ex.PW1/A, that the plaintiff had made the payment of Rs.15,72,700/-, under protest, and a legal notice dated 22.07.2022, was also served upon the defendants to release the said payment. It is further stated that a false and evasive reply was also sent by the defendants on 16.08.2022. The legal notice dated 22.07.2022 and the reply dated 16.08.2022, have been proved on record as Ex.PW1/13 and Ex.PW1/14 respectively. These documents are also not denied by the defendants.
42. During the trial, the affidavit of the plaintiff was tendered in evidence on 17.10.2023 and an opportunity was also granted to the defendants to cross-examine the plaintiff. But, perusal of the cross-examination of the plaintiff shows that the plaintiff has not been cross-examined, on behalf of the defendants, on any disputed fact or on any material or relevant point. However, it was admitted by the plaintiff that he had signed the contract/agreement Ex.PW1/2, after going through its contents.
CS (Comm.) 676/2022 page 16 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
43. From the testimony of the plaintiff and his affidavit Ex.PW1/A, it is clear that the entire case of the plaintiff is based on the terms & conditions of the agreement, dated 22.12.2014, Ex.PW1/2. The execution of this agreement and its extension till the year 2021 has not been denied by the defendants. Therefore, the contents of this agreement, Ex.PW1/2, are reproduced below, for ready reference, as under :
CS (Comm.) 676/2022 page 17 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm.) 676/2022 page 18 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm.) 676/2022 page 19 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm.) 676/2022 page 20 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi CS (Comm.) 676/2022 page 21 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
44. From the terms & conditions of the above agreement, it is clear that this agreement was executed for providing gunman, for guarding the Krishna Nagar head office, to man the security check posts at the specified points and to check the material and equipments brought in/taken out from the building and also the personal belongings of the staff and visitors entering the building.
45. From the terms and conditions of this agreement Ex.PW1/2, it is further clear that as per Clause 5.2, the plaintiff/ security agency was liable to reimburse in full, to the defendants/ government, the losses sustained by the defendant for any theft, breakage, mutilation or damage to any person or property in the course of execution of the services by the plaintiff. From this clause, it is clear that the serious offences like dacoity or rioting etc. are not covered under the agreement. Furthermore, from the contents of this agreement and the deposition of PW-1, it is clear that, in case, the defendants were intending to cover the losses CS (Comm.) 676/2022 page 22 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi due to various other serious offences like dacoity and rioting also, or under all eventualities, they should have not hired the services of a single gunman, to guard the entire premises of Krishna Nagar head office. Even otherwise, in case, the serious offences like dacoity or rioting etc. were also covered under the agreement, it was not physically viable to guard the entire building with the services of a single armed gunman.
46. During the trial, the defendants have also examined Sh.Nikhil Jain, Sr. Superintendent of Post Offices, Delhi East Division, in support of his contentions, as DW1, on 26.10.2023. This witness has filed his affidavit Ex.DW1/A, wherein, he has also reproduced the entire contents of the written statement. It is reiterated in the affidavit Ex.DW1/A, that the agreement dated 23.12.2014 was executed between the parties and on the night of 19.02.2017 a dacoity had taken place at Krishna Nagar head office, in which an amount of Rs.15,72,700/- was looted by the dacoits and an FIR was also lodged at PS Anand Vihar.
47. During the trial, the defendants have relied upon the circle level inquiry report to substantiate their contentions that the security guard provided by the plaintiff was at fault and due to his dereliction of duties, the dacoits were able to loot an amount of Rs.15,72,700/- from the Krishna Nagar head office premises.
48. In his affidavit Ex.DW1/A, this witness has also reproduced the contents of the said circle level inquiry report. The circle level inquiry report has been proved on record as Ex.DW1/5. The relevant contents, regarding the investigations, as mentioned in this circle level inquiry report Ex.DW1/5, CS (Comm.) 676/2022 page 23 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi submitted by DW-2 Sh. Abhishek Singh, the then Director Postal Services (Operations) Delhi Circle, New Delhi-110 001, are reproduced below for ready reference :
"3. Investigations :
3.1 On investigation it was found that Shri Lallan Kumar was working as Treasurer and Shri Rajpal - Iind as APM (Treasury) in the second batch on 18-02-2017 (Ssturday) at Krishna Nagar HO on leave arrangement as regular APM (Treasury) Sh. A.K. Jain was on leave.
Both of them i.e. Shri Lallan Kumar and Shri Rajpal - Iind were the joint custodian of Treasury Branch. The cash bags of seventeen Post Offices in account with KNHO containing the cash worth Rs.14,48,700/- were kept by them in a small cash chest embedded in Treasury Branch along with the cash of Rs.50,000/- of currency notes of Rs.10/- denomination and rejected two-three pieces currency notes of denomination Rs.500/- and Rs.1000/- amounting to Rs.74,000/- WPS (Withdrawan Old Series) which were returned by the bank. Remaining cash was kept by them in Godrej cash safe. The small cash chest and Godrej safe were locked jointly by them after finishing their day's work before leaving the office at arouind 20.30 hours on 18.02.2017 and its keys were kept in the main cash safe. The first lock of the main cash safe was locked with the key of APM and the 2nd lock was closed by Sh. Lallan Kumar. Then the lock of outer gate of main treasury was locked by Shri Lallan Kumar and one more lock was put by APM Shri Rajpal - II.
3.2 In the night of 19.02.2017 (Sunday) Shri Munna Lal MTS was working as night chowkidar with duty hours from 7 P.M. to 7 A.M. along with one armed guard named Sh. Raj Kumar hired from private security agency. Sh. Raj Kumar attended his duty at 20.00 hours (08 p.m.) on 19- 02-2017. Both of them took their dinner at around 22.00 hours in delivery hall. The entry gate of the Post Office Building near delivery hall and the entry gate of Delivery Hall was opened by them at the time of dinner and they were left opened. Sh. Raj Kumar, Security Guard after taking dinner was sitting near the main entry gate of the Post Office building near delivery hall and Shri Munna Lal was also sitting nearby. The gun belonging to the security guard Sh. Raj Kumar was kept by him in ATM Room located outside and ajdacent to Main Entry Gate of Post Office building. He was sitting in front of the main entry gate of the Post Office building near delivery hall on the chair without his gun and busy on his mobile. At around 11 p.m. around seven to eight persons/decoits having the fire arms, knives and iron rods entered the post office from behind the building and over powered them. The decoits tied the hands of Sh. Munna Lal and Sh. Raj Kumar and put them in the delivery hall. They demanded the key of the treasury cage but were informed that the keys remain with the Post Master and hence unavailable. Thereafter, two of them remained in the delivery hall keeping eyes on both the night CS (Comm.) 676/2022 page 24 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi chowkidar/guard. Test of the miscreants went inside and broke open the locks and kundas of the treasury iron cages. They also broke open the small iron cash chest by breaking its locks and the cash bags kept inside were taken out. All the cash bages were opened by them and the cash inside was kept in a bag and taken away by the miscreants. The miscreants also tried to break open the godrej safe but did not succeed in breakig the Godrej Safe despite all their efforts. Some of the miscreants took the COD/Fgn. Parcels and tore open them. They took their contents and kept some of the contents in a bag which was later taken away by them. The miscreants remained int he office for about two hours and ran away at about 01.00 a.m. arouind with cash amounting to Rs.15,72,700/- kept in small iron cash chest and other items duly kept in the bags. The cash bags in torn condition were left in the treasury. Before leaving the office, the miscreants threatened both the night chowkidar/guard not to rais any alarm.
xxxx xxxx xxxx xxxx 3.6 On further investigation, it is revealed that M/s 3105/Kulwant Singh Security Agency, D-34, Basement, Building No. 744, 100 foot Road, Chhattarpur Pahari, New Delhi - 110 074 is providing the Gunman to Krishna Nagar Head post office from 20.00 hours to 08.00 hours. An agreement was signed between Sr. Suptd of Post Offices, Delhi East Division and M/s 3105, Kulwant Singh Security Agency on 23.12.2014. The said agreement was valid for two years, as such the said contract was due to expire on 31.12.2016.
3.6.1. Vide letter no. KSSA/DOPTY/30 dated 14.10.2016 addressed to Sr. Supdt. Of Post Offices, Delhi East Division, M/s 3105 Kulwant Singh Security Agency has intimated that they are willing to continue the contract and requested for extension of contract for two years as per the conditions of the existing contract. The request of Security Agency was forwarded to AD (PO) Delhi Circle by SSPOs Delhi East Division vide letter dated 01.11.2016 for consideration. On receitp of directions from AD (PO) Circle Office vide letter dated 17/18-11-2016 that new contract can be entered into before expiry of old contract, the Directorate General of Resettlement (DGR) was requested for sponsoring of agencies for deploying the Security Guards/Gunman in the Post Offices under Delhi East Division. The sponsorships received from DGR were not found fit for engagement by the committee constituted for selection. As such, no new contract have been made. However, the contract of engagement of Security Guard with the present contractor i.e. M/s 3105/Kulwant Singh Security Agency, D-34, Basement, Building No. 744, 100 foot Road, Chhattarpur Pahari, New Delhi - 110 074 was approved for extension for the period from 01.01.2017 to 31.12.2017 vide Circle Office letter number PO-6/4-7/p-ii/2009-10 dated 21.09.2017. As such, M/s 3105/Kulwant Singh Security Agency, D-34, Basement, Building No. 744, 100 foot Road, Chhattarpur Pahari, New Delhi - 110 074 was continuously providing the Gunman to Krishna Nagar HPO after expiry of the contract on 31.12.2016 and the payments were also being made to CS (Comm.) 676/2022 page 25 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi the security agency continuously. The particulars of payments from December - 2016 onwards are as under :
S. Month Sanction Memo Number /Date No 1 December 2016 G-3/Security Guard/16-17 dated 06.01.2017 2 January - 2017 G-3/Security Guard/2017 dated 03-2017/17.04.2017 3 February - 2017 G-3/Security Guard/2017 dated 17.05.2017 4 March - 2017 G-3/Security Guard/2017 dated 06-2017 5 April - 2017 G-3/Security Guard/2017 dated 06-2017/04.07.2017 6 May - 2017 G-3/Security Guard/2017 dated 08.08.2017 7 June - 2017 G-3/Security Guard/2017 dated 22.08.2017 8 July - 2017 G-3/Security Guard/2017 dated 27.09.2017 9 August - 2017 G-3/Security Guard/2017 dated 15.11.2017 10 September-2017 G-3/Security Guard/2017 dated 03.01.2018 11 October-2017 G-3/Security Guard/2017 dated 01-2018/01.02.2018
The payments from November-2017 onwards ae yet to be released.
3.7 Keeping in view of the above, no departmental official is found involved in the incidence of dacoity at Krishna Nagar Head Post Office Delhi - 110 051 on the interevening night of 19/20 - 02-2017. However, following major lapses are noticed on the part of Security staff delpolyed on duty on the date of incidence.
(i) Shri Munna Lal MTS : he was chowkidar at Krishna Nagar HO on the intervening night of 19/20-02-2017 and was required to keep the doors/gates locked in the night hours. But he kept opened the entry gate of delivery hall and entry gate of the Post Office Building near the delivery hall. Due to this, decoits got an easy access inside the Head Post Office Building and were able to overpower. Had the gates been properly locked, he might have got some time to take some action to inform the Police Authorities/Postal Officers or putting some barriers against the inside doors of the delivery hall. However, immediately after the dacoits have flown away, he showed courage and informed the police authorities.
(ii) Sh. Raj Kumar, Security Guard : Being the security guard he was required to guard the whole building and to be alert at all the time but he was so negligent that he was sitting in the open near the entry gate of the Post Office building near delivery hall without his gun and keeping himself busy on his mobile and he was unaware of what was happening around him. The gun belonging to him was also not with him instead he was kept his gun in the ATM room which was located outside and adjacent to main entry gate of the Post Office building. As a resutl, he has failed to resist the attack of the dacoits and was easily grabbed and overpowered by them. Had he been in possession of his gun, he could have stopped the attackers by threatening or firing and on listening the sound of fire, the police personnel, if any was patrolling nearby, might have come to Post Office building and the incidence could have been avoided.
CS (Comm.) 676/2022 page 26 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
4. Modus operandi : The miscreants entered the Head Post Office from behind and over pwered the MTS/Chowkidar and Security Guard on duty under the influence of fire arms. Knives and iron rods. The miscreants tied their hand and legs and put them in the delivery hall. The miscreants broke open the locks and Kundas of the treasury iron cages, tore many ordinary foreign articles/COD Parcels and finally fled awa with cash of Rs.15,72,700/- (Rs. Fifteen Lakh Seventy Two Thousand Seven Hundred Only) and other items duly kept in the bags. Before leave the office, the miscreants threatened the MTS/Chowkidar and Security Guard not to raise alarm.
5. Amount involved :
Cash kept in sealed Cash Bags of 17 Sub Offices kept in 14,48,700/- iron chest for overnight safe custody (Para 3.3 above) Rejected two-three pieces currency notes of 74,000/- denomination Rs.500/- and Rs.1000/- (WOS notes) at KNHO Treasury (Para 3.3.3. above) Currency notes of denomination Rs.10/- (para 3.3.3. 50,000/-
above) Total 15,72,700
5.1 Amount recoveryed : Police authorities have recovered an amount of Rs.1,50,000/- (Rs.One Lakh Fifty Thousand Only) from the miscreants. The same has been confirmed by the police authorities during investigation before filing the Charge Sheet in the court of law but the amount is not credited to the department. It will be released as and when the Hon'ble court orders for the same.
5.2. Net amound of loss : Rs.15,72,700/- (Rs. Fifteen Lakh Seventy Two Thousand Seven Hundred only) 5.2. Adjustment of Loss : The amount of loss Rs.15,72,700/- (Rs. Fifteen Lakh Seventy Two Thousand Seven Hundred only) has been charged under the head UCP pending recovery/write off/loss under the proviion of Rule-55 of FHB Manual Volume - 1 vide SSPOs Delhi East Division memo number F-1/01/2017-18 dated 23/30-03-2017. The same will be adjusted later on.
xxxx xxxx xxxx xxxx
8. Departmental action : Sr. Supdt. Of Post Offices Delhi East Division has been asked to make efforts for recovery of amount of loss from M/s 3105/Kulwant Singh Security Agency, D-34, Basement, Building No. 744, 100 foot Road, Chhattarpur Pahari, New Delhi - 110 074 according to agreement made on 23.12.2014 with M/s Kulwant Singh Security Agency for a period of two years. As per clause 5.2 of said agreement dated 23.12.2014 made between the Security Agency Service and the SSPOs Delhi East Division as per which "The security Agency shall be liable to reimburse in full to the Government the losses CS (Comm.) 676/2022 page 27 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi sustained by the Government for any theft, breakage, mulilation or demage to any person or property in course of execution of the services by the Security Agency".
9. Police action :
9.1. The case was reported to SHO Anand Vihar Police Station and FIR No. 0095 dated 20.02.2017 under sec 395 IPC has been registered. Shri Vineet Pratap Singh, ASI was the Inquiry Officer and the Charge Sheet has already been filed by police in the court of law. SSPOs Delhi East Division and Sr. Postmaster Krishna Nagar HO are in liason with the plice authorities and it has been iniformed by them that eight dacoits (as explained in para 7.1 above) have been caught and an amount of Rs.1,50,000/- has been recovered from their custody. The case is under trial in the court of law at Karkardooma Court and the next date of hearing is 17.04.2018. All the accused persons are reported t be released on bail. SSPOs Delhi East Division has been asked to provide all necessary assistance to the police authorities, keep watch over the court proceedings and request the honourable court, at the appropriate stage, that the amount of loss caused to the department may be fully ordered to be recovered from the culprits and credited to the department."
49. During this circle level inquiry, the following preventive measures were also suggested, as under :
"13. Preventive Measures:
13.1 The office was also visited by CPMG Delhi Circle on the day of incidence and during the course of visit, it was observed that the delivery of work of Krishna Nagar HO and Laxmi Nagar SO is handled in the delivery hall through which there is a way to Treasury which is congested as the space available seems to be insufficient. Thus, in order to ease the situation and to avoid movement of large number of people around treasury, SSPOs Delhi East Division was directed to examine the following aspects on urgent basis vide this office letter number INV/13- 01/2017, dated 08.03.2017:
(i) Merging delivery work of Krishna Nagar Head Post Office and Laxmi Nagar SO A proposal in this regard has already been submitted by SSPOs Delhi East Division and the same is under consideration at M.O. Section, Circle Office. AD (MO) is directed to ensure necessary action at the earliest.
(ii) Erection of temporary structure next to BPC to accommodate total work of delivery there Civil work/construction of erection of temporary structure next to BPC to accommodate total work of delivery there is under process.
CS (Comm.) 676/2022 page 28 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
(iii) Shifting of SBCO and some other branch to present delivery hall, as establishing CPC PLI there has further squeezed the overall space availability.
Action has already been initiated by SSPOs Delhi East Division regarding shifting of SBCO and some other branch to present delivery hall.
13.1.1. AD (PO) was asked to direct Divisional Heads and Postmasters of Head Post Offices to review the overnight cash retention and bring it down to minimum by remitting the maximum possible amount to the bank on daily basis.
13.2.2. AD(PC) was asked to ensure supply of a new Godrej Cash Chest to Krishna Nagar Head Post Office. Accordingly, a Godrej Cash Chest was supplied to Krishna Nagar HO on 18-03-2017 and one Godrej Cash Chest to Jhilmil HO on 17-03-2017."
50. During the circle level inquiry, a report on the security of Krishna Nagar head office was also submitted by the police officials of the concerned police station, which has been incorporated in this circle level inquiry report, as under:
"13.2 Besides above, action has been initiated regarding Security Protocol to be followed in Postal Department-Preparation of Standard Operating Procedure. In this regard, the matter was discussed with Joint CP on the day of incident itself and Delhi Police has done their security audit. Krishna Nagar head Post Office was inspected by Delhi Police during the course of investigation and a report regarding security standard of Krishna Nagar Post Office was submitted by Shri Vineet Pratap Singh, Sub-Inspector, Anand Vihar Police Station. 13.2.1 As per report on security standard of Krishna Nagar Post Office, Delhi Police has pointed out the following shortcomings:
(i). Boundary wall of the Post Office is very small and there is not any iron grill on it. Anyone can climb on it.
(ii). There are only two guards in the night and they are not well trained.
(iii). No CCTV camera is installed in the premises. CCTV is very necessary for security purpose.
(iv). Grills of main Treasury Branch are very old and weak.
(v). Vehicle parking system is very poor, which is inside the Post Office building and no register is maintained regarding vehicle, which are parked in the Post Office.
CS (Comm.) 676/2022 page 29 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
(vi). All doors of the Post Office are very old, which should be changed.
13.2.2. The security audit of Delhi Police has further suggested the following to improve the security of Post Offices:
(i). Height of the Boundary wall should be increased and iron grills should be there.
(ii). At least four guards should be in Post Office in the night and they should be well trained and they should be with weapons.
(iii). High resolution CCTV cameras should be installed in the premises and in Treasury Branch.
(iv). An alarm should be installed in the main Treasury Branch.
(v). Vehicle parking system should be improved and a register should be maintained with the number of vehicle and owner's name, address should be recorded in it.
(vi). Doors of Post Office should be changed.
13.2.3. The height of the Boundary Wall of the office has been increased and iron grills are also installed and rest of the construction work in the office premises is going on. Two Security Guards with Gun have been deputed from 07.00 P.M. to 07.00 A.M. along with one MTS staff for overnight security of the office. The CCTV Cameras has been installed in Krishna Nagar Head Post office. Action for installation of alarm system in the main Treasury Branch and changing the doors of the Post Office has also been initiated by SSPOs Delhi East Division. A register has been maintained for noting the particulars of the vehicles and their owners visiting Krishna Nagar Head Post Office for getting their work done. However, SSPOs Delhi East Division is directed to monitor the completion of all the work on weekly basis and ensure that all the work is completed properly.
13.2.4. Further, the security protocols followed in banks including PNB Security Manual were also studied by AD (V & I) and a report was submitted which was examined by the HOC and a drive has been initiated to prepare a Standard Operating Procedure to ensure security of the post offices. All unit heads were asked to constitute a team in their Divisions comprising of divisional Head, ASP (HQ), Postmaster, AE/JE(Civil) and the Building Clerk for the micro analysis in respect of security arrangements of each Post Office under their Division. The matter was also discussed in the weekly meeting of Divisional Heads with HOC and it was found that Sub Offices in Delhi Circle are in practice of remitting cash to their respective HO's on daily basis and keeping minimum cash in the office, as such, all cash travels to HO's. Thus it was decided to carry out the security audit of all HO's through the team. The team was directed to carry out a thorough exercise of "Security Audit" of each Post office on 'as it is' basis. This exercise is underway."
CS (Comm.) 676/2022 page 30 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
51. In his affidavit Ex.DW1/A, DW-1 Sh. Nikhil Jain has reproduced various paragraphs of the above noted circle level inquiry, Ex.DW1/5, and has also reiterated that the plaintiff was required to guard the entire premises of Krishna Nagar head office, and therefore, the full liability for reimbursement of losses falls upon him. It is also mentioned that it was the duty of the security guard to ensure that the building doors were closed after duty hours and it was his duty to guard the treasury of the office as per para 3.1 of the agreement. However, this witness has admitted that the entire blame was not put on the security guard of the plaintiff and the departmental action was also taken against Sh. Munna Lal, MTS, who was deployed as Chowkidar at Krishna Nagar head office, at the time of dacoity, and an amount of Rs. 1 Lakh was also imposed on him, as fine.
52. In his affidavit Ex.DW1/A, it is reiterated by this witness that as per clause 5.2 of the agreement the plaintiff was under
contractual obligations to reimburse the losses sustained by the defendants. He has also reiterated that as per para 3.8 of the agreement, it was the responsibility of the security agency to ensure that the office gates were properly locked after the working hours and especially during night and no entry of any outsider was allowed without specific approval of the competent authority, except speed post customers/agents. But, the cross- examination of this witness has demolished the entire case of the defendants.
53. During his cross-examination, DW-1 Sh. Nikhil Jain has admitted that he was working as Sr. Superintendent of Posts at CS (Comm.) 676/2022 page 31 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi Delhi East Division, Krishna Nagar Head Office, only w.e.f. 23.08.2022 and on the date of incident on 19.02.2017, he was not posted at the Krishna Nagar head office. He was also having no information about the concerned Sr. Superintendent of Posts, who was posed at Krishna Nagar head office on 19.02.2017. It is relevant to note that no official from Krishna Nagar Head Office, who was posted there on the date of incident, on 19.02.2017, has been examined by the defendants, during the trial. This witness has further deposed that he joined the Department of Posts only on 23.12.2019, and therefore, he was having no personal knowledge about the dacoity at Krishna Nagar Head office, on 19.02.2017. He has also admitted that he was having no knowledge about the date or the year of conducting the circle level inquiry.
54. During his cross-examination, DW1 Nikhil Jain has also admitted that he was having no knowledge about the fact that on 18.02.2017, a total of about Rs.30 lakhs of cash was received at the office of the defendant No.2 from other post offices under his jurisdiction. He has admitted that it was the duty of his staff to put the cash back in separate iron cages in the said premises. He has also admitted that a watchman was also employed by the defendant No.2, who used to remain present at the premises during the night and it was his duty to remain present in the premises during the night and to close the premises from inside. He has further admitted that on 19.02.2017, their watchman was found outside the premises and was not present inside the premises, as per the directions, and therefore, a penalty/ recovery of Rs.1 Lakh was also imposed on him.
CS (Comm.) 676/2022 page 32 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi
55. During the trial, the defendants have also examined DW2 Sh. Abhishek Kumar Singh, OSD to Minister of Railways & Communication, Govt. of India, who was the then Director, Postal Services (Operations), Delhi Circle, New Delhi, who conducted the circle level inquiry and submitted his report Ex.DW1/5. This witness has proved the circle level inquiry report Ex.DW1/5 and during his cross-examination, he has admitted that before conducting the circle level inquiry, the department had already started the recovery proceedings against the plaintiff. He has further admitted that while conducting the circle level inquiry, the cognizance of the agreement dated 23.12.2014 was taken by him and during the inquiry, no opportunity was given to the plaintiff or its guards to present their case. He has also admitted that during this inquiry, he has come to know that the dacoits had given beatings to the guards on duty and had overpowered them. He has further stated that as per his knowledge, no CCTV was installed at the Krishna Nagar branch, on the date of incident.
56. From the testimonies of the witnesses of the parties and the documents on record, it is clear that the agreement, dated 23.12.2014, Ex.PW1/2, was subsisting on the date of the incident on 19.02.2017, as the same was extended orally. It is further clear that the said agreement requires reimbursement of losses by the plaintiff to the defendants for any theft, breakage, mutilation or damage, to any person or property in the course of execution of services by the security agency/ plaintiff. But, it does not mention the liability of the plaintiff/ security agency for damages under all eventualities or due to commission of serious offences CS (Comm.) 676/2022 page 33 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi like dacoity or rioting etc. Even otherwise, only one armed security guard was provided by the plaintiff, as per the directions of the defendants, to guard the Krishna Nagar head office building and in the considered opinion of this court, as per the lapses pointed out by the police officials of Delhi Police and the circle level inquiry, Ex.DW1/5, the same was not sufficient to guard and take care of all the eventualities. Furthermore, a single armed security guard can, by no stretch of imagination, be asked to take care of 7-8 armed dacoits, who entered the building premises of Krishna Nagar head office, by jumping over the back side boundary wall and over powered him and the watchman.
57. From the material on record, it is also clear that the watchman of the defendants was required to remain inside the main building and to keep the doors /gates of the main building, including the treasury, closed from inside, at all times after the working hours, and the security guard provided by the plaintiff was to remain outside the main building, but inside the boundary wall of the premises, and to guard the entry/exit points. During the circle level inquiry, as well as during the investigations conducted by the Delhi Police, during the investigations of FIR No.95/17, it has been pointed out that the watchman of the defendants was also guilty of dereliction of duties as he has not performed his duties properly and has not closed the gates of the main building and the treasury and has not remained inside the main building. During the dacoity, he was also sitting outside, with the security guard provided by the plaintiff, and has not cared to close the doors of the main building and the treasury. The lapses and dereliction of duties by the watchman, namely, CS (Comm.) 676/2022 page 34 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi Munna Lal, MTS, have facilitated the dacoits to commit the offences easily. Therefore, the lapses on the part of the official of defendant No.2 cannot be transferred on the security guard provided by the plaintiff.
Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Issues No. 2Whether the plaintiff is entitled to claim pendente lite and future interest from the defendants? If so, at what rate and for which period ? OPP
58. The burden to prove this issue also lies on the plaintiff. In the plaint, the plaintiff has claimed the pendentelite and future interest, on the amount of Rs.15,72,700/- @ 18% per annum. But, in his affidavit Ex.PW1/A, the plaintiff has failed to claim any interest on the said amount.
59. Perusal of the agreement Ex.PW1/2, also indicates that there is no clause in the terms & conditions, regarding the payment of any kind of interest, by the defendants to the plaintiff. However, it is an admitted fact that the amount of Rs.15,72,700/- was deposited by the plaintiff, with the defendants, vide cheque No. 519306 dated 30.09.2019, and the same has remained deposited with the defendants till date. The said amount has not been released by the defendants to the plaintiff, despite his repeated reminders, written letters and the legal demand notice Ex.PW1/4, and representation dated 30.09.2019, Ex.PW1/11. Therefore, keeping in view the nature of transactions between the parties and the prevailing rates of bank interest, it would be CS (Comm.) 676/2022 page 35 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi appropriate if the interest @9% per annum is also awarded in favour of the plaintiff and against the defendants, w.e.f. 01.10.2019.
This issue is decided accordingly, in favour of the plaintiff and against the defendants.
Relief
60. In view of my findings on the various issues, as discussed above, the suit of the plaintiff is hereby decreed, in favour of the plaintiff and against the defendants, for an amount of Rs.15,72,700/- (Rs.Fifteen Lakhs Seventy Two Thousand Seven Hundred Only), alongwith simple interest @9% per annum, w.e.f. 01.10.2019, till its realization. Costs of the suit are also awarded in favour of the plaintiff and against the defendants.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Digitally signed
BRIJESH by BRIJESH
Announced in the open Court KUMAR GARG
on this 15th Day of July, 2024
KUMAR Date:
GARG 2024.07.15
16:09:46 +0530
BRIJESH KUMAR GARG
District Judge (Commercial Court)-01
Shahdara Distt, KKD, Delhi
CS (Comm.) 676/2022 page 36 of 36 D.J.(Commercial)-01/Shahdara/KKD/Delhi