Delhi District Court
Shri Ram Kishore Sharma Prop M/S R K ... vs Delhi Jal Board And Ors on 31 January, 2025
IN THE COURT OF SH MUKESH KUMAR GUPTA
DISTRICT JUDGE(COMMERCIAL)-07(CENTRAL)
TIS HAZARI COURTS: DELHI
CS (Comm.) No. 1152/2023
CNR No. DLCT010110322023 DLCT010110322023
SH. RAM KISHORE SHARMA,
Proprietor of M/s R.K. Electricals,
D-84, Gali No. 20, Bhajan Pura,
Delhi-110053
......Plaintiff.
Vs
1.THE EXECUTIVE ENGINEER (E&M) W&S CN.
Delhi Jal Board: GNCTD
Kanhiya Nagar,
New Delhi-110035.
Email: [email protected]
2.The ACE (M)-5,
Delhi Jal Board,
Room No. 312,Varunalaya,
Jhandewalan, Karol Bagh,
New Delhi-110005.
...... Defendants.
SUIT FOR RECOVERY OF RS. 8,84,516/-
Date of institution of suit : 09.08.2023
First Date before this court : 06.04.2024
Date of hearing of final argument : 28.01.2025
Digitally
signed by Date of Judgment : 31.01.2025
MUKESH
MUKESH KUMAR
KUMAR GUPTA
GUPTA Date:
2025.01.31
16:26:58
+0530
CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 1 of 35
Appearance(s) : Mr. Sanjay Bansal, Adv. Ld. Counsel for plaintiff.
Ms. Rhea Verma, Adv. Ld. Counsel for the defendant.
JUDGMENT
(A) PRELUDE:
1. By way of present judgment, I shall conscientiously adjudicate upon suit of the plaintiff for Recovery of Rs. 8,84,516/- (including a pre- suit interest @ 12% per annum on the Principal amount of Rs. 6,89,126/- for the period 16.08.2021 till filing of the suit amounting to Rs. 1,65,390/-) alongwith interest @ 12 % per annum pendentlite and future from the date of filing of the suit till its realisation. The plaintiff has also prayed for costs of the suit against the defendants.
(B) CASE OF THE PLAINTIFF:-
2. Eschewing prolix reference to the pleadings crystallizing the same the plaintiff has averred in the plaint that:-
2.1) The plaintiff is the proprietor of proprietorship firm namely M/s R.K. Electricals which is a registered contractor engaged in the business of Electricals contracts having its office at D-841, Gali No.20, Bhajan Pura, Delhi-110053. The plaintiff firm has been carrying on different works for the Delhi Jal Board for deployment of skilled, semi-
skilled and unskilled labour for E&M installations various sites of the defendant including at Shastri Nagar, BPS and water Emergency since long and is engaged in the civil nature of work for the defendant No.1.
Digitally signed2.2) The defendant had awarded the work order No.181 dated MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.01.31 16:27:06 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 2 of 35 20.03.2021 ( in short "WO-181") for period of 120 days vide LOI No.7697 dated 16.03.2021 after inviting tender for deployment of skilled, semi-skilled and unskilled labour for E& M installation at Shastri Nagar BPS and water Emergency to the plaintiff for the value of Rs.6,89,126/-.
The work was to be executed between 17.03.2021 and 14.07.2021. The plaintiff has deposited an amount of Rs.21,000/- in the shape of FDR No.008688 dated 17.03.2021 drawn on Union Bank of India, Bhajan Pura, Delhi with defendant No.1 vide letter dated 17.03.2021 and Rs.9,000/- towards performance Guarantee for this work in pursuance to letter dated 16.03.2021 from the defendant No.1.
2.3) It is further the case of the plaintiff that plaintiff has completed the work on 14.07.2021 and the same has been accepted by the defendant with completion date. Accordingly, the plaintiff has submitted a bill for the value of Rs.6,89,126/- with defendant no.1 vide diary No. 1708 dated 16.08.2021 alongwith log registers maintained at Booster Pump and ESI and EPF details for the persons deployed at site in term of LOI, which were also duly signed by the Engineers concerned from time to time.
2.4) It is further the case of the plaintiff that plaintiff has completed the work in time and when plaintiff demanded the amount, the defendant has failed to release the payment for the work done in terms of LOI and the work order and also withheld the FDR for Rs.21,000/- deposited as Performance Guarantee besides security deposit MUKESH by Digitally signed MUKESH KUMAR GUPTA of Rs. 9,000/-. Accordingly, the total outstanding amount including the KUMAR Date:
GUPTA 2025.01.31 16:27:12 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 3 of 35 principal amount of Rs.6,89,126/-, earnest money of Rs.30,000/- deposited with the defendant, pre-institution interest of Rs.1,65,390/- @ 12% per annum thereby totaling to Rs.8,84,516/-.
2.5) As per plaintiff, he has issued various letter for release of outstanding payment including e-mail dated 09.06.2022 and letter dated 19.09.2022 but the defendants have tried to evade the payment on one pretext or the other compelling the plaintiff to issue a legal notice dated 22.11.2022 calling upon the defendants to pay the outstanding amount with interest @ 12% per annum, which was also not responded to by the defendants.
2.6) The plaintiff has claimed that the cause of action arose on the date when the plaintiff has completed the work on 14.07.2021 and thereafter when the bill was raised on 16.08.2021 and further when the legal notice was served upon the defendant which was not responded to and the same is still continuing and finally when steps for pre-institution mediation were taken under Section 12-A of Commercial Courts Act, 2015 where the defendants failed to appear and a Non-Starter Report dated 24.05.2023 was issued by the concerned Legal Service Authority.
2.7) Hence the present suit for recovery of Rs.8,84,516/-
alongwith interests and costs.
(C) CASE OF THE DEFENDANTS:- Digitally signed by MUKESH MUKESH KUMAR GUPTA
3. On receipt of summons for settlement of issues, the defendants KUMAR Date:
GUPTA 2025.01.31 16:27:20 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 4 of 35 contested the suit by filing a detailed Written Statement thereby submitting preliminary submissions which are as under:-
3.1) That defendants are employees with Delhi Jal Board which is a government agency responsible for supply of potable water to the National Capital Territory region of Delhi and as per the records work of "Deployment of skilled, semi skilled and unskilled labour for E&M installations at Sanjay Gandhi Transport" was awarded to the plaintiff vide work order no. 181 dated 20.03.2021 for the value of Rs.6,89,126/-. Thereafter, parties executed contract agreement no. 162/2020-21 dated 22.03.2021 which specifically stated that parties shall be bound by the General conditions of Contract and other conditions as per notice inviting tender available on DJB website attached with the tender all of which formed an integral part of contract. As per the terms of the contract, following documents were binding on the parties and form an integral part of the contract between the parties:-
(I) Work Order no. 181 dated 20.03.2021;
(ii) General condition of Contract and other conditions available on DJB website;
(iii)Item wise Bill of Quantity;
(iv)Indemnity Bond dated 20.03.2021;
(v) Letter of intent no. 7697 dated 11.03.2021;
(vi)Copy of FDR no. 008688 dated 17.03.2021.
3.2) It has further been contended that as per the work order, the work was to be commenced on 17.03.2021 and the plaintiff was directed Digitally signed by MUKESH MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.01.31 16:27:28 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 5 of 35 to submit documents and details of the labour to be deployed at site. However, the plaintiff neither started the work on time nor submitted the requisite detail in time and accordingly, two separate e-mails dated 18.03.2021 and 19.03.2021 were sent to plaintiff directing him to commence work. Thereafter, plaintiff failed to complete the work as per the specification of the work order.
3.3) It has further been contended that several inspections were made by the concerned Engineers of the defendant and during inspection, many discrepancies were found at site viz. the number of persons deployed by the plaintiff at site were not as per the work order, the log entries submitted by the plaintiff with respect to labour deployed had several inconsistencies and contradictions and inadequate labour deployment etc. 3.4) It has further been contended that the plaintiff has not approached the court with clean hands as the plaintiff has falsified it log entries and used signatures of same person to act on behalf of other labour which was contrary to the terms of the contract. Moreover, the plaintiff has failed to submit the educational qualifications and experience certificates and ESI/EPF related particulars of the labour deployed and failed to complete the work as envisaged in work order on account of inadequate labour deployment and gross delay. The defendant has further contended that as per the terms of the Work Order, plaintiff was also obligated to give a certificate to the Engineer in Charge by 10 th MUKESH by Digitally signed MUKESH of every month that the payment to the labour/worker was made as per KUMAR GUPTA KUMAR Date:
GUPTA 2025.01.31 16:27:35 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 6 of 35 Minimum Wages Act, however, the plaintiff failed to do so. It has further been contended that plaintiff has failed to execute the work order and was in fundamental breach of the terms of the contract by not providing relevant particulars of its labour and not deputing adequate labour on the work site. The defendants were forced to make alternative arrangements at extra cost and depute additional resources to cover the lapses and delays occasioned by the plaintiff.
3.5). On merits, the contents of the plaint have been denied except the fact that plaintiff was awarded work order no.181. The defendant has denied that the plaintiff has completed the work in the stipulated time.
All other contents of the plaint were denied and prayer has been made for dismissal of the plaint.
4. Replication to the Written Statement was also filed by the plaintiff refuting the contentions raised by defendant and reiterating the contents of the plaint. It has been averred that the written statement is not being signed and verified by the defendant and therefore the Written Statement deserves to be rejected outrightly. It has also been reiterated that the plaintiff has not committed any breach much less any fundamental breach as alleged. It has been stated that the defendant had never asked the plaintiff to give any certificate that the payment was made as alleged wrongly for the first time in the Written Statement.
Digitally signed (D) CRYSTALISING THE DISPUTE :-
by MUKESH
MUKESH KUMAR
KUMAR
GUPTA
GUPTA
Date:
2025.01.31
5. On the pleadings of the parties and documents placed on record the 16:27:42 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 7 of 35 following issues were framed for adjudication vide order dated 08.02.2024.
ISSUES.
(i) Whether the plaintiff failed to complete the work as per specifications of the Work Order by not deploying the requisite number of persons at site ? OPD.
(ii) Whether the plaintiff falsified the log entries and used signatures of same persons to act on behalf of labourers contrary to the terms of Contract ?OPP
(iii) Whether the plaintiff is entitled to recover the suit amount from the defendant, as claimed? OPP
(iii) Whether the plaintiff is entitled to any interest ? if so, at what rate and for what period ?OPP
(iv) Relief.
(E) EVIDENCE OF PLAINTIFF
6. Plaintiff, in support of his case, got examined himself as PW1 and reiterated the contents of the plaint on oath in his affidavit Ex.PW1/A. He got exhibited the copy of the Work Order No.181 dated 20.03.2021 as Ex.PW1/1, Letter dated 17.03.2021 vide which he deposited an amount of Rs.21,000/- in the shape of FDR No. 008688 dated 17.03.2021 as Ex.PW1/2 (colly), Bill of Rs. 6,89,126/- deposited with defendant No.1 vide diary No. 1708 dated 16.08.2021 as Ex.PW1/3, Log Book maintained at Booster Pump Site containing 121 pages as Ex.PW1/4 (colly), Challans with TRRN Number, ECR, E-Receipt, Payment Digitally signed by confirmation Receipt, Detail list of workers with their salary Sheet, Bank MUKESH MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2025.01.31
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+0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 8 of 35
Statement month-wise as Ex.PW1/5 (colly) and Copy of letters dated
09.06.2022 and 19.09.2022 vide which the plaintiff has requested for release of payment and legal notice dated 22.11.2022 as Ex.PW1/6 (colly). He has deposed that the defendant got the person deployed and availed the services and thereafter had also duly acknowledged the bill and never refuted the contents of the bill. However, despite receiving the bill, the defendant had failed to release the payment as well as performance Guarantee amount to plaintiff against the present work order. It has further been deposed that the suit is correct and the defendants are liable to pay the outstanding amount alongwith interest and costs.
7. During cross-examination, Ld. Counsel for defendants has tried to puncture the testimony of PW1 on the point of number of non- compliance of general conditions available on DJB website and Bill of Quantity (BOQ) attached with the tender, deployment of persons and action on the objection/comments raised by the officers/AE of the defendant department. He has deposed that prior to 2021, he has obtained similar work orders from the defendant and executed 3 work orders for Sanjay Gandhi, Jahanagirpur and Shastri Nagar sites and obtained payment for all 3 three work orders earlier to this work order adding voluntarily that Completion certificate has been obtained after the bill submitted with the defendant. He has deposed that he has engaged 10 persons on this work orders whose names ware Umar Pal, Sudhir, Sameer, Vikas, Pankaj, Pushpender, Yogesh, Azad, Gavender and Digitally MUKESH signed by MUKESH KUMAR Anupam, out of which Sudhir and Azad are skilled persons, Yogesh and KUMAR GUPTA GUPTA Date:
2025.01.31 16:27:56 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 9 of 35 +0530 Gavender are semi-skilled and others are unskilled for 3 shifts. The time of shifts and number of persons deployed were also mentioned. He has further deposed that on 18.03.2021 vide diary No. 4821, all the relevant papers regarding the persons employed were submitted in the office of the defendant at Kanhiya Nagar Office and the contract period was 17.03.2021 to 14.07.2021 i.e. for 120 days and that he started the work on 17.03.2021. He has deposed that the inspection was done by the officers of the defendant on many occasions who have also signed the log book and that he has never objected to the inspection carried out by the defendant department. The witness when confronted with page No. 120 of Log book Ex. PW-1/4 and asked about any action on the objection/comments raised by the officers/AE of the defendant department, has answered in negative adding that the defendant can deduct money from the bill if there is any lack of labour or absence of employee from the site. He has further deposed that he has never marked the person absent in the log book, voluntarily deposing that he has made the full payment to the persons employed in the work order. He has denied the suggestion that the log book has fraudulent entries with forged signatures and the same does not reflect the actual employment of labour. He has denied the suggestion that the plaintiff had to start the work on 17.03.2021 and has failed to complete the work as per orders.
He has further denied the suggestion that the plaintiff did not submit the relevant documents (ESIC details, Education Qualification, Skilled Digitally related qualification etc.) before the commencement of work.
signed by
MUKESH
MUKESH KUMAR
KUMAR GUPTA
GUPTA Date:
2025.01.31
16:28:03
+0530
CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 10 of 35
8. No other witness was examined by the plaintiff and the evidence of the plaintiff was closed by his statement dated 19.10.2024.
(F) DEFENDANT'S EVIDENCE :-
9. The defendants in their defence got examined one Shri Ved Prakash Pandey, Executive Engineer (E&M) M-5, Kanhaiya Nagar, Delhi as DW1 who has filed his evidence by way of affidavit Ex.DW1/A. The witness reiterated the contents of written statement on oath and got exhibited the Computerised copy of work order No. 181 dated 20.03.2021, General Conditions of "contract and other conditions available on DJB website, Item wise Bill of Quantity Indemnity Bond dated 20.03.2021, letter of Intent No.7697 dated 16.03.2021 and copy of FDR No.008688 dated 17.03.2021 containing 20 pages as Ex.DW1/1 (colly) and copy of E-mail dated 18.03.2021 as Ex.DW1/2 (colly). DW1 Shri Pandey also deposed in his evidence that plaintiff has failed to complete the work as per the specifications of Work Order and during the inspections carried out by the concerned engineers of the defendants, many discrepancies were found at site which includes the number of persons deployed by the plaintiff at site being not as per work order and the log entries submitted by the plaintiff with respect to labour deployed having several inconsistencies and contractions, inadequate labour deployment etc. and failing of the plaintiff to give a certificate to the Engineer in Charge with respect to payment made to labour/worker as per the Minimum Wages Act. He has finally deposed that the plaintiff has not submitted the final bill or supporting documents submitted with the Digitally signed KUMAR GUPTA defendant to process the payment/bill of the plaintiff.
MUKESH by He has deposed
MUKESH
KUMAR Date:
2025.01.31
GUPTA 16:28:10
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CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 11 of 35
that the suit of the plaintiff is liable to be dismissed as misconceived and bereft of cause of action with exemplary costs.
10. The witness was subjected to a very detailed cross-examination by Ld. Counsel for the plaintiff, during which DW1 has deposed that initially the work order was issued by Executive Engineer (E&M) (Water and Sewerage Central North) which was restructured to EE (E&M) M-5 in November, 2021. He has further deposed that all the documents/records pertain to the work in question was received in his office but only work order file is available in his division adding that file contains documents like copy of estimate, copy of work order, copy of contract/agreement, notings of approval of the work order, copy of NIT alongwith administrative approval proforma. He has further deposed that no other contractor was employed on this work except the plaintiff but tried to volunteer a possibility of departmental man power may have been deployed, but when asked about document or details he deposed that there is no document to show that department has deployed any manpower in this work adding that department may have deployed labour as per telephonic conversation. He has deposed that the plaintiff has sought erroneous relief because LOI (Letter of Intent) was issued by the department on 16.03.2021 with deployment of labour from 17.03.2021 after providing various documents like Aadhar Card, technical qualification, education qualification, address proof etc. for which even the department has wrote e-mail on 18.03.2021 which was responded to by plaintiff with e-mail dated 18.03.2021 asking for Digitally issuance of the work order which was issued on 20.03.2021. He has also signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.01.31 16:28:16 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 12 of 35 referred to e-mail on 25.03.2021 for deployment of manpower stating that the bill was claimed by the plaintiff from 17.03.2021. He has also deposed that the then AE (E&M) and JE (E&M) have written less manpower has been deployed and fake signatures have been done on the log sheet. He has further deposed that the AE and JE have informed the Executive Engineer in writing that the plaintiff had faked the signatures on the log sheet but when asked about any FIR/police complaint being lodged by the Executive Engineer even after receiving the letter from the AE/JE in this regard, he has answered in negative adding that departmental proceedings have been initiated against the contractor but when asked he could not even tell what departmental proceedings have been taken against the contractor. He has further deposed that he does not have any knowledge whether the department has ever written for blacklisting of the contractor for making the fake signatures on the log sheet.
11. While explaining the work covered under work order he has deposed that there are log book entries in which it is written by JE that the water supply was disturbed in the area. He has volunteered to depose that the said entries in the log sheet submitted by the plaintiff do not have the original log book. The witness when confronted with the log sheet and asked on which pages of log sheet it was written that the water supply was disturbed in the area has pointed out to page No. 108 of the log sheet where the foot note was written as : "Today Morning supply not done properly due to this Hydrant No.1 and Hydrant No.2 not Digitally signed by MUKESH working". Witness has also pointed out at page No.115 wherein it is MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.01.31 16:28:23 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 13 of 35 +0530 written on the foot note that "due to negligence of R. K. Electricals, today supply disturbed" signed at 7.20 AM on 13.06.2021. When asked about the responsibility to maintain hydrants at work site, the witness has stated the same to be of the defendant department to repair the hydrants installed at the Booster Pump Station, still adding that it is the duty of the manpower deployed by contractor to inform the concerned JE regarding the fault in the hydrants but when asked specificially about the case he said that he does not have any knowledge whether the manpower of the contractor had not informed about the fault in the hydrants to the JE. He has further deposed that he does not have any knowledge whether the department or JE had written any letter to the contractor about non-information of fault in hydrant even after the entry so made at page no. 108 of the log sheet admitting that no such document has been placed on record.
12. He has further deposed that he has not placed any document on record to show who had operated the Booster Pump in question from 17.03.2021 to 25.03.2021. He has further deposed that he does not remember the exact number of booster pump operated under the jurisdiction of EE in the year 2021. The witness did not remember the name of the agency who had deployed the manpower at the site before issuance of letter of intent to the plaintiff. When asked about alleged forgery, witness has said that no expert opinion has been taken to show that the signatures are forged on log sheet Ex.PW1/4 (colly), volunteering that concerned Jr. Engineer has checked the log sheets Digitally signed by physically and found the signatures are fake and recorded on the log MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.01.31 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 14 of 35 16:28:32 +0530 sheets but when asked about documentary proof that the AE and JE had ever informed to the Executive Engineer about the fake signature on the log sheets Ex.PW1/4 (colly), he admitted that no such document was placed on record. The witness when confronted with the original Log Sheets Ex.PW1/4 (colly) and asked whether the log sheets were prepared at site as per the document as shown Ex.PW1/4 (colly) has answered in affirmative. He has further deposed that the plaintiff has executed the work as work order was issued to this contractor, voluntarily adding that the work was completed as per the terms and conditions of the Work Order. He has admitted that no payment was ever released to the plaintiff in respect of this work.
13. When asked again on forged signatures, DW1 could not tell without seeing the record as to whether the Executive Engineer has written any letter to the contractor about the fake signature. He admitted the e-mail ID of the department is [email protected] . He has further deposed that he is not sure but it seems that the e-mail ID of Additional chief Engineer is [email protected]. The witness has admitted that the rubber stamp as encircled in red on Ex.PW1/3 i.e the submitted bill was of Defendant Division by which the final bill was received by the department, voluntarily deposing that the bill was incomplete. But when asked about the defendant had ever refuted or denied the bill Ex.PW1/3 after receiving the same from the plaintiff, he says that he will have to confirm admitting that he has not placed any such letter on record to show that the EE at that time was denied or refuted or alleged that the Digitally signed by MUKESH bill was incomplete.
MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.01.31 16:28:40 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 15 of 35
14. He has further deposed that it is the duty of the JE Incharge to check the attendance of the man power at the booster pump on daily basis, however, due to the number of booster pump, it may not be possible for the JE to check on daily basis and may be checked on alternative days. He has admitted that department has not deposited any ESI EPF with ESI and EPF towards the manpower deployed by contractor in this work order or received any notice from the ESI EPF Department towards its non-deposit. The witness has further admitted that the department has also not paid any salary to the man power deployed by the plaintiff in this work order. He has denied the suggestion that the contractor/plaintiff has paid the salary to their man power as per the norms prescribed by the Minimum Wages Act. He has admitted that the department is the principal employer of the man-power deployed in this work order. He has further denied the suggestion that the contractor has deployed the man power from 17.03.2021 till 14.07.2021 but when asked about the exact date from which date the plaintiff had deployed the man power at booster pump, he could not tell adding the plaintiff had deployed the man power uptil 14.07.2021. He has further deposed that he did not know when the new tender was called for deploying the man power on this booster pump. He has further deposed that he could not say whether the plaintiff had deposited the ESI and EPF with the ESI Department for the man power deployed at site. He has voluntarily deposed that due to non-submission of relevant documents, however, the same was submitted by the plaintiff in the court record. He has further Digitally signed by MUKESH MUKESH KUMAR GUPTA deposed that he has not checked the document pertaining to the ESI and KUMAR Date:
GUPTA 2025.01.31 16:28:47 +0530 EPF as received in court. He has to check whether the department has CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 16 of 35 received the legal notice dated 22.11.2022 or not. He has further deposed that he had to check whether the e-mail Ex.PW/6 (pages No.17 to 21) has been received by the department or not, though the e-mail ID was of the department only. He has denied the suggestion that the contents of para No.7, 8 and 9 are wrongly written in the affidavit Ex.DW1/A to deny the payment to the plaintiff. He has finally deposed that no security amount has been released to the plaintiff.
15. No other witness was examined by the defendants and the evidence of the defendants was closed vide statement dated 19.11 .2024.
(G) ANALYSIS & DETERMINATION:-
16. I have heard the arguments addressed by the Ld. Counsels for the parties, perused the entire record including the oral and documentary evidence. I have given a thoughtful consideration to the same. My issue-
wise determination is as under:-
Issues No.1 & 2 : "Whether the plaintiff failed to complete the work as per specifications of the Work Order by not deploying the requisite number of persons at site ? OPD."
"Whether the plaintiff falsified the log entries and used signatures of same persons to act on behalf of labourers contrary to the terms of Contract?OPP"
17. The onus of proving these issues was held upon the defendants who have taken a preliminary objections in its Written Statement that the suit is liable to be dismissed for the reasons that the plaintiff has failed to complete the work as per specifications of the work order by not deploying the requisite number of persons at site and the plaintiff has also Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
falsified the log entries and used signatures of same persons to act on GUPTA 2025.01.31 16:28:54 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 17 of 35 behalf of labourers contrary to the terms of contract. These issues are inter-connected besides being pivotal to the entire controversy between the parties as there is no dispute regarding the award of contract Ex.PW1/1, completion of work within stipulated time, labour complaint or any other issue regarding the satisfactory work being completed except the alleged non-compliance of work order/conditions Ex.PW1/1.
18. Ld. Counsel for the defendant Ms. Verma has also argued that plaintiff was required to ensure efficient and smooth running of booster pumping station including maintenance and upkeep of the station in three separate shifts every day. It was further argued that total 10 labours had to be deployed 2 skilled, 2 semi-skilled and 6 unskilled shift wise and under no circumstances could the workers be deployed beyond 8 hours shift in a day. Ld. Counsel has further argued that plaintiff has failed to perform the work as per the terms of the work order Ex.DW1/1 (colly) and deployed grossly inadequate labor at site. It was further argued that the plaintiff was required to furnish list of workers deployed on each site with names and addresses within 2 days but the plaintiff failed to provide the same. The plaintiff was further required to provide list of workers along with their ESI details, age proof, educational qualifications, technical qualifications etc. which the plaintiff has not provided. It has further been contended that the plaintiff has further failed to supply certificate with respect to the payment of the workers as per the Minimum Wages Act, by 10th of every month to the Engineer-in-Charge despite requests from the department. Ld. Counsel for the defendant has Digitally MUKESH signed by MUKESH KUMAR further argued that plaintiff failed to commence the work in time from KUMAR GUPTA Date:
GUPTA 2025.01.31
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CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 18 of 35 17.03.2021 despite e-mails dated 18.03.2021 and 19.03.2021 sent by the defendant to commence the work and provide complete details. It has also been argued that various inspections were carried out by the JE/AE concerned where it was found that staff as recorded by the plaintiff was not present as required as per Work Order Ex.DW1/1 (colly) at the site, whose shift timing and particulars were wrongly recorded and sometime it has been. It was further found that at the site for entire night, none of the deployed worker was skilled, which is in complete violation of the work order.
19. It has further been argued that as per the inspection, there were gross discrepancies were found in the log entries and actual labor deployment and it was found that same worker was performing three shifts in complete violation of the terms of the work order. He has further argued that as per the inspection report the defendant found gross under deployment of labor on site and incorrect entries reflecting in the log book. Ld. Counsel for the defendant has argued that the plaintiff in order to hide its lapses and wrong doings was manipulating the entries in the log book and show false deployment of labor and thus the plaintiff did not perform the work as per the specifications of the work order no.181 dated 20.03.2021 Ex.DW1/1(colly). Ld. Counsel for the defendant while referring to part of log book (Ex.PW1/4) at page No. 108 & 105 has pointed out some discrepancies in the work done and contradiction in the testimony of PW1 regarding ignorance of whose labour was skilled, semi-skilled or unskilled. Ld. Counsel for defendant has further Digitally signed emphasized that the plaintiff has deposited FDR only and not provided by MUKESH MUKESH KUMAR GUPTA KUMAR GUPTA Date:
2025.01.31 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 19 of 35 16:29:09 +0530 the documents and details of the labours and as such as acted in contravention of agreed terms & conditions of agreement and work order Ex.DW1/1.
20. Per contra, Ld. counsel for the plaintiff has vehemently argued that there is no dispute with regard to the fact that the contract was awarded to the plaintiff and letter of intent No.7679 dated 16.03.2021 was issued to the plaintiff and work order was issued on 20.03.2021. It has further been argued that the plaintiff deployed the labor at the site immediately and as per request of the defendant w.e.f. 17.03.2021 and maintained the log book which was also inspected by the officials of the defendant from time to time who has duly recorded their due satisfaction while referring to page No.42, 50, 60, 68, 75, 97 and other pages of Ex.PW1/4. It was further argued that the log book maintained by the defendant was not signed by the officials of the defendant on each and every day as per their own admission during evidence. Ld. Counsel for the plaintiff has argued that the defendant never issued any show cause notice to the plaintiff at any point of time during the subsistence of the contract or even thereafter leading to an inference that it has condoned the lapses/discrepancies which were minor in nature. As regards the objections raised by the defendant that plaintiff failed to supply the educational and technical qualifications of the workers deployed at the site, it was argued that the plaintiff had submitted all the relevant documents along with the attendance register and ESI and EPF documents during the pendency of the suit and the same has taken on Digitally signed by MUKESH record vide order dated 06.04.2024 and the plaintiff has also deposited MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2025.01.31 16:31:30 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 20 of 35 +0530 the bill but the defendant failed to release the bill to the plaintiff. Ld. Counsel for the plaintiff has further pointed out the admission by the defendant in respect of the execution of Work Order Ex.DW1/1(colly) and the completion of the Work Order as per the terms and conditions of the Work order in the cross-examination of DW1 Shri Ved Prakash Pandey, Executive Engineer (E & M).
21. In order to discharge the burden of proving these issues, DW1 Shri Ved Prakash Pandey, the Executive Engineer concerned has deposed in his evidence Ex.DW1/A that the work order was to commence on 17.03.2021 and the plaintiff was directed to submit document and details of the labour to be deployed at site but the plaintiff neither started the work nor submitted the requisite details in time and as per record despite e-mails dated 18.03.2021 Ex.DW1/2 and dated 20.03.202 Mark 'A' were issued to the plaintiff in respect to the commencement of work and submission of complete documents with respect to deployed labour but the plaintiff has failed to provide the same. DW1 Shri Ved Prakash Pandey has further testified that several inspections were made by the concerned engineers and many discrepancies were found at site as the number of persons deployed by the plaintiff at the site were not as per the work orders, more so, the log entries submitted by the plaintiff with respect to labour deployed had several inconsistencies and contradiction. Further the plaintiff has failed to submit educational qualifications and experience certificates and ESI/EPF related particulars of the labour deployed and failed to comply the work as per work order Dx.DW1/1 Digitally signed despite sending e-mails Ex.DW1/2 (colly) to the plaintiff.
MUKESH by MUKESH
KUMAR GUPTA
KUMAR Date:
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22. Contradicting the testimony of DW1 during cross-examination by the plaintiff,it has come on record that all the documents/records pertain to the work in question was received by the defendant in their office. Even, PW1 during his testimony in cross-examination has deposed that all the relevant papers regarding the persons employed at the site were submitted by the plaintiff at defendant's office at Kanhiya Nagar on 18.03.2021 vide diary entry No.4821. This deposition has not been duly refuted by the defendant during his evidence. Admittedly, as per testimony of DW1 during cross-examination, it has come on record that the concerned division of the defendant has undergone a restructuring from the office of the Executive Engineer (E&M), Water and Sewerage Central North ) to EE (E&M) M-5 in the month of November 2021 where the work order file has come on record which contained certain documents including NIT, work order, copy of the contract agreement, notings and approval of the Work Order and copy of NIT alongwith administrative approval proforma. The witness has failed to refute as to whether the details and documents in respect of the labour employed was received during such restructuring or not, that too when the plaintiff during his cross-examination has even given the date and diary no. of such submission of documents. This has to be seen as in response to the e-mail dated 18.03.2021 Ex.DW1/2 of the defendant. Pertinent to mention here that the defendant has admittedly failed to either take any action against the plaintiff, impose any penalty or even initiate any proceedings with the process of black-listing which has been deposed by DW1 in his deposition during cross-examination. Even the defendant has MUKESH by Digitally signed MUKESH failed to issue a show cause notice to this effect leading to a necessary KUMAR GUPTA KUMAR Date:
2025.01.31 GUPTA 16:32:25 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 22 of 35 inference that either the documents were not integral to the contract or that they were received by the defendant and lost during restructuring. This is further corroborated by the fact that the plaintiff has filed his bill for the work order on 16.08.2021 which was duly accepted vide entry No.1708 as per the deposition of DW1 but the defendant has failed to issue any letter thereafter pointing out the aforesaid deficiency or even asking for it and decided just to keep silent on receipt of such bill Ex. PW1/3.
23. Adverting to the allegations of lesser number of labour employed in contravention of the Work Order and the Agreement Ex.DW1/1( colly). DW1 Shri Ved Prakash Pandey during cross-
examination has admitted that no other contractor was employed for the subject work except the plaintiff nor he has placed on record any document to show that any substitute labour was ever employed, though he has taken a stand that sometime people from the department may be deployed to cover the deficiency but when asked about any such document or proof, the witness has utterly failed and admitted that no such document was filed on record. It is highly improbable for a Government department like the defendant for allocation of duties even for short period can be made without any official order or at least an administrative approval on file. DW1 during his cross-examination has deposed that the plaintiff has executed the work as per the work order and the work was completed as per the terms and conditions mentioned therein. He has also deposed that there were no complaints from the Digitally signed by MUKESH MUKESH KUMAR residents regarding the non-supply of water or non-operation of the GUPTA KUMAR Date:
GUPTA 2025.01.31 16:32:33 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 23 of 35 pump. He has further deposed that there is no document to show that the department has deployed any manpower in this work and the plaintiff has completed the work order. Though the witness has tried to over emphasize the discrepancies found during inspection by the concerned JE/AE from the observation made at the bottom of log book Ex.PW1/4 (colly), referring to page No.108 of the log sheet stating that water supply got disturbed in the area due to fault of the plaintiff but when subjected to cross-examination, the witness has crumpled down by admitting that the supply was disturbed due to fault in hydrant No.1 and 2 being not working at the site and admitting that it was the responsibility of the defendant department to repair the hydrant installed at the booster pump. He has tried again to wriggle out of the aforesaid by referring to page No.115 showing negligence of the plaintiff and imposing a duty on the plaintiff to inform that the concerned JE regarding fault in the hydrant but when further subjected to cross-examination he has admitted that he has no knowledge about such information being given by the contractor or even the department/JE issuing any written communication to the contractor for fault on account of non-information. As such taken on the yardstick of preponderance of probabilities, the defence raised by the defendant that the plaintiff failed to complete the work order has not been proved by way of any cogent evidence and appears to be just a ploy to avoid liability.
24. As regards the manipulation in the log books, it may be seen that a careful examination of log sheet Ex.PW1/4 shows that the concerned Digitally signed by MUKESH MUKESH KUMAR JE/AE has not made inspection on day to day basis but has made random GUPTA KUMAR Date:
GUPTA 2025.01.31 16:32:41 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 24 of 35 inspection and has even signed the log sheet sometimes by mentioning their comments regarding everything being in order and labours were found on the site with their names but in some of the log sheets discrepancies have been duly referred to. Now if there were discrepancies, the defendant was either required to issue a show cause notice, a warning notice, a penalty being imposed, a curtailment of the wages amount or cancellation of contract in its entirety. Admittedly, no such action has been taken and the same has been duly admitted by the defendant during his-cross-examination as DW1. It is not the case that plaintiff had got the log book signed in advance from the labor and has forged the same. Though Ld. Counsel for defendant during the cross- examination has tried to state that forgery was committed by the plaintiff in mentioning the name of same labour in the different shifts but she has failed to point out any clause in the agreement or even general terms and conditions as to how many labour skilled, semi-skilled, unskilled labour were required to be employed in a particular shift or for a particular time. If the defendant was so sure and confident of the forgery and discrepancies pointed out was major they were required to take an action either before the concerned police enforcement agency or at least at their departmental level. DW1 has admitted that no complaint/FIR was ever lodged before the police for manipulating the log sheets and no action was taken against the plaintiff in respect of fudging of the log sheets. He also admitted that the persons whose signatures were fudged/forged were not verified, though in haste he has tried to cover that the departmental action was taken against the contractor but when required to show the MUKESH by Digitally signed MUKESH same by way of a document he has shown ignorance. Hence, on the KUMAR GUPTA KUMAR Date:
GUPTA 2025.01.31 16:32:49 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 25 of 35 basis of the evidence and taken on the yardstick of preponderance of probabilities, even the defendant has failed to prove this aspect by way of any cogent evidence and it appears that the discrepancies noted was so minor worth ignoring/contoning with no action being ever taken by the defendant. Ld. Counsel for the defendant has referred to letter dated 16.06.2021 Mark 'C' in support of his contention, however, when the aforesaid letter is carefully examined, the same only refers to the requirement of submitting certificate by 10th of every month confirming the wages are paid to the deployed employee as per the Minimum Wages Act, and not for the aforesaid discrepancies or allegations of forgery.
During the course of arguments, Ld. Counsel for plaintiff has clearly refuted any such letter was ever received by the defendant. In its affidavit of admission and denial, the plaintiff has duly denied this document as manipulated. If the document is carefully examined, it shows that the same was sent to th plaintiff through Speed Post but neither the Speed Post receipt nor the tracking report of the same forms part of the record showing the actual delivery of the same to the plaintiff.
25. In view of the aforesaid facts and circumstances, once it is admitted by the defendant that the work was completed by the plaintiff and no complaints were received either from the residents or from any labor or department of ESI and EPF regarding non deposit of the contribution by the plaintiff, the preponderance of probability lies strongly in favour of the plaintiff and against the defendant. Plaintiff has already proved on record the log book Ex.PW-1/4 which establish that the plaintiff has deployed the labor and completed the work as per the Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.01.31 CS (Comm.) No. 1152/2023 16:32:56 +0530 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 26 of 35 terms and conditions of the tender. Hence, some discrepancies in the number of labors on some particular days when the officials of defendant inspected the site can not be a basis to deny the payment to the plaintiff. Defendant has failed to prove the manipulation or forgery in the log sheets and therefore, the same have to do taken as correct as per the records.
26. In view of the aforesaid discussion, the court is of the considered view that the defendant has failed to discharge the onus conferred upon it even to the extent of yardstick of preponderance of probabilities. These issues are accordingly decided against the defendant and in favour of the plaintiff.
Issue no.3. "Whether the plaintiff is entitled to recover the suit amount of Rs. 8,84,516/- from the defendant ?OPP"
27. The onus of proving this issue was held upon the plaintiff and relates to his entitlement to the suit amount which includes three components, the principal amount of Rs.6,89,126/-, the pre-award deposit of Rs.30,000/- in 2 tranches of Rs.21,000/- and Rs.9,000/- and finally the pre-suit interest component of Rs.1,65,390/-. To prove the same, the plaintiff has examined himself as PW1 and filed his affidavit by way of evidence as Ex.PW1/A. This issue is to be determined in the wake of fact that there is no dispute regarding the award of Work Order/contract Ex.PW1/1, completion of work within stipulated time, labour complaint or any other issue regarding the satisfactory work being completed except some alleged deficiencies that the plaintiff has failed to complete Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
2025.01.31 GUPTA 16:33:03 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 27 of 35 the work as per specifications of the work order by not deploying the requisite number of persons at site and the plaintiff has also falsified the log entries and used signatures of same persons to act on behalf of labourers contrary to the terms of contract. The aforesaid two aspects have already been determined by the court while deciding the issues No.1 and 2.
28. The plaintiff has duly submitted the requisite bill of Rs.6,89,126/- in respect of the work done pursuant to work order Ex.PW1/1 with the defendants, which has been exhibited as Ex.PW-1/3. The same has also been accepted by the defendant vide diary No.1708 dated 16.08.2021 without any objection or response that there was non-compliance of the work order/contract Ex.PW1/1.
29. When the evidence of the parties is critically examined, it is not in dispute that the plaintiff firm was awarded WO No.181 dated 20.03.2021, Ex.PW1/1 by the defendants and the said work were duly executed by the plaintiff and as a precondition earnest money was also deposited by the plaintiff. It is also not in dispute that the work was completed within time and the plaintiff has completed the necessary formalities of the work leading to preparation of the bill Ex.PW1/3 mentioning not only the details of the work done, rates on which the work was done and the actual amount due to be paid by the defendant.
30. According to the plaintiff, bill Ex.PW1/3 was deposited for Digitally signed by Rs.6,89,126/- on 16.08.2021 qua WO No.181 and the earnest amount MUKESH MUKESH KUMAR KUMAR GUPTA Date:
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for the same work of Rs. 30,000/- (Rs.21,000/- as Performance
Guarantee by way of FDR + Security deposit of Rs.9,000/-) was also deposited as precondition. The plaintiff has paid contribution EPF & ESIC of the employees. The testimony of PW1 in this regard is not only clear and categoric but has also not been breached during cross- examination.
31. The defendant on the other hand, during his deposition has admitted that the work was done in terms of work order Ex.DW1/1 and the fact that the contractual amount was not so far released to the plaintiff. If the bill Ex.PW1/3 is carefully scrutinized and as already discussed they contain not only the details of work, rates on which the work was completed but also the total amounts against each work order. The bill has been duly signed by the Contractor, the plaintiff and is admittedly based on the log book Ex.PW1/4 which contains the details and particulars of work done. It is not the case of the defendant that this bill Ex.PW1/3 or the log book Ex.PW1/4 has been illegally raised. It is also an admitted case of the defendant that there is no complaint against the plaintiff from the public for non-supply of water or labour complaint pending or received against the plaintiff in respect of the work orders in question. The defendant has duly admitted that the plaintiff has worked uptil the last date of completion of work covered under the Work Order Ex.PW1/1. It has also come on record that the defendant has not been able to show that it has either engaged any other contractor or labour or even has deployed its regular employees for completion of the Digitally signed by MUKESH MUKESH KUMAR GUPTA work at the subject site during the period of contract. As regards the KUMAR Date:
GUPTA 2025.01.31 16:33:45 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 29 of 35 principal claimed amount of Rs.6,89,126/- withheld by the defendant in the bills Ex.PW-1/1, DW-1 Shri Ved Prakash Pandey in his cross examination has admitted that no payment in respect of the work order No.181 has been made by the defendant so far. The plaintiff on his part has issued a legal notice dated 22.11.2022 Ex.PW1/6 (colly), for release of the contractual amount. The plaintiff has made request for passing of the bills and release of payment in respect of the work completed pursuant to the work order Ex.PW1/1 awarded to him. Thus, taken comprehensively the defendant has though admitted the liability on satisfaction of the works covered by the work order Ex.PW1/1 but is deliberately denying the claim of the plaintiff on the technical plea of some minor discrepancies in the log book Ex.PW1/4. As already discussed, law and equity cannot permit the same to happen, more so, when there is clear admission of completion of work without any complaint or lack of compliance and even the liability by the defendant . And as such, the plaintiff is entitled for the amount of the bill as claimed and which the defendants is withholding without any justifiable reason. Reliance placed on judgement of Hon'ble High Court of Delhi in North Delhi Municipal Corporation Vs. Barahi Construction RFA (COMM) 6/2021 (Neutral citation: 2021/DHC/958-D) and the judgment of Hon'ble Division Bench of High Court of Delhi in North Delhi Municipal Corporation Vs. Vipin Gupta RFA 160/2017 to support his point. He has further relied upon the judgment of Mr. Rajnish Yadav proprietor of M/s. Bharat Construction Company Vs. North Delhi Municipal Corporation, RFA (OS) (COMM) 1/2021 MUKESH by Digitally signed MUKESH (Neutral citation: 2023/DHC/000174) to submit that once the defendants KUMAR GUPTA KUMAR Date:
GUPTA 2025.01.31 16:33:53 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 30 of 35 had accepted the execution of the work by the plaintiff pertaining to the work order without any dispute whatsoever and therefore, the defendants were under the liability to pay the contractual work amount to the plaintiff.
32. Adverting to the aspect of non-depositing of ESI and EPF contribution, the defendant as DW-1 in his examination has deposed that plaintiff was required to furnish the details of ESI and EPF deposits. Even this contention of the defendant is baseless as the plaintiff has already shown the ESI and EPF documents deposited in the department which has been already been taken on record vide order dated 06.04.2024 and duly proved on record as Ex.PW1/5. The testimony of DW1 in this regard is also important in as much as the defendant has admitted that he was the principal employer of the labour with respect to the work covered under work order and has neither received any notice or any proceedings for non-deposit of ESI and EPF with the statutory authorities.
33. In so far as the refund of the security deposit/pre-contract deposit of Rs.30,000/- against the work order is concerned, PW-1 Shri Ram Kishore Sharma, in his testimony has duly proved the same and the deposits slip of the same has being even exhibited on record as Ex.PW1/2. Nothing has come on record breaching the aforesaid testimony or affecting the credibility of the document Ex.PW1/2. The defendant, DW1 during his cross-examination has admitted that as per Digitally signed by MUKESH record, the plaintiff had deposited earnest money to the tune of MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.01.31 16:34:01 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 31 of 35 Rs.30,000/- and the same has not been refunded to the plaintiff till date. As per clause 5 of the letter of intent dated 16.03.2021 Ex.DW1/1 (colly), the plaintiff has deposited Rs.30,000/- as security amount/Performance Guarantee of departmental rate. The work was completed by the plaintiff and accordingly, the bill was prepared and the same was submitted and accepted by the defendant on 16.08.2021. Admittedly, there is no complaint regarding the quality of work done by the plaintiff nor there is any complaint against the plaintiff regarding any labour dispute in respect of the aforesaid work order Ex.PW1/1 except some minor discrepancies against which no action was taken by the defendants. A considerable time has expired since the contract was completed and admittedly there is no claim made by the defendant on account of any acts of commission or omission on the part of the plaintiff. Hence, there are no grounds for the defendant to withhold the security amount of the plaintiff. Accordingly, taken on the yardstick of preponderance of probabilities and in view of oral as well as documentary evidence which has come on record, the plaintiff has been successful in discharging the onus for his entitlement on this count also.
34. Thus on the basis of aforesaid discussions and findings, the court is of th considered opinion, the plaintiff has been able to successfully proved its entitlement, for the principal amount, pre-contract security deposit from the defendant on the yard stick of preponderaterance of probabilities. The issue is accordingly decided in favour of the plaintiff and against the defendants.
Digitally signed by MUKESH MUKESH KUMAR GUPTA KUMAR Date: 2025.01.31 GUPTA 16:34:09 +0530
CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 32 of 35 Issue no.4: "Whether the plaintiff is entitled to recover any interest from the defendant, if so, at what rate and for what period ?OPP"
35. The onus to prove this issue was on the plaintiff. The plaintiff has claimed pendentelite and future interest @ 12% per annum on the claimed amount of Rs.8,84,516/- (which included a pre-suit interest of Rs. 1,65,390/- ) pendentlite and future interest from the date of filing of the suit till its realization.
36. Ld. Counsel for the plaintiff has argued that defendant has illegally withheld the amount of bill. It is further argued that the plaintiff has suffered financial losses as defendant failed to release the payments and hence, the plaintiff is entitled for the interest on the delayed payment. Ld. Counsel for the defendant on the other hand, has staunchly refuted the same on the ground of non-compliance of terms and conditions of Work Order Ex.DW1/1 (colly).
37. The plaintiff has, however, failed to establish the basis on which the interest is being claimed @ 12% per annum by way of any clear or cogent evidence. Though there is stipulation for interest @ 18% per annum on the plaintiff's bill Ex.PW1/3, however, the interest component on delayed payment was never agreed to in the work order Ex.PW1/1 or even the general terms and conditions Ex.DW1/1 (colly). The same is against equity as the defendant cannot withhold the justifiable payment of plaintiff for the work obtained by them from him. Hon'ble High Court in North Delhi Municipal Corporation Vs. Sanjeev Kumar (RFA No. Digitally signed by MUKESH MUKESH KUMAR 430/2016) has clearly held that interest shall be levied on the defendant GUPTA KUMAR Date:
GUPTA 2025.01.31 16:34:16 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 33 of 35 for delayed payment. Similar observation were made by Hon'ble Delhi High Court in NDMC & Others Vs. Shish Pal MANU/DE/1200/2018, where the Hon'ble court while dealing with the cases of another civic body and the contractor employed for civic work by holding that if a period of payment is prescribed by the contract the contractor shall be entitled to interest after such stipulated period. If the terms and conditions is carefully examined, PW1/1 in condition No.26 provides for submission of final bill after 30 days of completion of work but does not prescribe any stipulation for delayed payment. Thus, considering the facts and circumstances of the case and the law as discussed, this court is of the considered opinion that the interest of justice would be subserved if the plaintiff is awarded simple interest @ 7.5% per annum on the entitled amount of Rs.7,19,126/- (Rs.6,89,126/- + Rs.30,000/-) from the date of request of releasing of bill amount raised through e-mail dated 09.06.2022 till filing of the suit and the same rate pendentlite and future till the date of its realization. This issue is, accordingly decided in favour of the plaintiff and against the defendants.
(H) CONCLUSION:-
ISSUE No.5: Relief.
38. In view of the aforesaid discussions and finding of the court on the aforesaid issues, the court is of the considered opinion that the plaintiff has been able to successfully prove its entitlement to the recovery against the defendant. The suit of the plaintiff is, accordingly decreed against the defendants for a sum of Rs.7,19,126/- (Rs.6,89,126/- + Rs.30,000/-) MUKESH by MUKESH KUMAR GUPTA from the date of request of releasing of bill amount raised through e-mail Digitally signed KUMAR Date:
GUPTA 2025.01.31 16:34:24 +0530 CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 34 of 35 dated 09.06.2022 till filing of the suit and the same rate pendentlite and future till the date of its realization. In the specific facts and circumstances of the case, the plaintiff shall also be entitled to the costs of the suit throughout.
39. Decree sheet be drawn accordingly.
40. File be consigned to record room after due completion.
PRONOUNCED IN OPEN COURT .
Digitally signedON THIS 31st JANUARY, 2025. MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2025.01.31 16:34:38 +0530 (MUKESH KUMAR GUPTA) DISTRICT JUDGE (COMM. COURT)-07 CENTRAL/DELHI CS (Comm.) No. 1152/2023 Ram Kishore Sharma Vs. Delhi Jal Board and Ors.. Page no. 35 of 35