Delhi District Court
Sdmc vs . M/S Balaji & Sons & Anr. on 28 July, 2018
Digitally
signed by
ANIL ANIL ANTIL
Date:
ANTIL 2018.07.31
17:13:37
+0530
IN THE COURT OF ANIL ANTIL, ADDITIONAL DISTRICT
JUDGE.05 SOUTH EAST DISTRICT, SAKET COURTS, ND.
Civil Suit No.1251/17
SDMC Vs. M/s Balaji & Sons & Anr.
South Delhi Municipal Corporation
Through its Authorized Officer ..........Plaintiff
Versus
1. M/s Balaji & Sons
Through Sole proprietor Mr. Bisheswar Jha
205/2A/9, Kishan Garh, Vasant Kunj,
New Delhi110070
Also at:
C386B, Street No. 27
Khajuri Khas Delhi110094
And at:
138/9, Flat No. 17, II Floor,
Kishan Garh, Vasant Kunj, New Delhi110070
And
Email ID of defendant: [email protected]
..........Defendant
Date of institution of the suit : 21.08.2017
Date of reserved for order/judgment : 21.07.2017
Date of pronouncement of judgment : 28.07.2017
Decision :Suit Decreed
Civil Suit No. 1251/17 SDMC Vs. M/s Balaji & Sons & Anr. page no. 1 of 9
EXPARTE JUDGMENT
1. The present suit has been filed by the plaintiff for recovery of
Rs.65,98,238/ (Rupees Sixty Five Lakhs Ninety Eight Thousand Two
Hundred and Thirty Eighty Only) alongwith pendente lite and future interest.
2. Plaintiff's version as per averments in the plaint :
2.1 Succinctly, plaintiff is a legal entity, the South Delhi Municipal
Corporation (hereinafter referred to as 'SDMC') in short, constituted under
the Delhi Municipal Corporation Act, 1957.
2.2 That parking sites across the South Delhi are under the control and
administration of the SDMC and contracts are awarded to the different
contractors as per the norms.
2.3 That defendant herein was awarded with the contract of the parking
site at Alaknanda Market, New Delhi. That the provisional offer letter No.
USD/RPC/D750 dated 24.08.2011 indicating a monthly license fee of Rs.
1,11,000/ was issued in favour of the defendant. The site was handed over.
That advance amount for the Alaknanda parking site amounting to Rs.
13,11,890/ was deposited by defendant vide Receipt No. AJ1837 dated
12.01.2012.
2.4 That on completion of one year of the contract, a demand notice was
served upon the defendant vide letter No. AC/RPC/2013/D360 dated
18.02.2013 calling up on the defendant to pay the advance MLF for the
second year, i.e. an amount of Rs. 15,48,080/. That upon the intimation of
the defendant contractor about encroachment in the parking site, the plaintiff
corporation took immediate action and has forwarded the complaint under the
Civil Suit No. 1251/17 SDMC Vs. M/s Balaji & Sons & Anr. page no. 2 of 9
signatures of the Asst. Commissioner to the SHO concerned.
2.5 That vide letter No. RPC/2013/D276 dated 09.07.2013, the plaintiff
corporation has asked the defendant to deposit the advance MLF of Rs.
15,48,080/ within 7 days from the date of receipt of the said letter.
2.6 That vide letter dated 18.07.2013 and 19.07.2013 the defendant has
made different requests to the plaintiff corporation, which was not in
consonance with the NIT/Contract executed between the parties.
2.7 That a coordination committee was constituted in terms of the Order
of the Hon'ble High Court in WPC No. 4899/2013. That the said co
ordination committee held its meeting on 19.11.2013 and has considered the
grant of remission up to 10% in the monthly licese fee w.e.f. 07.06.2013 to
12.09.2013 in respect of Alaknanda parking site.
2.8 That a payment of Rs. 11,98,464/ was made by defendant towards
80% MLF of Alaknanda parking site for the second year on 21.10.2013.
2.9 That Vide letter No. RPC/SDMC/2014/D157 dated 31.10.2014, the
SDMC has revised the parking rates and the MLF was also accordingly
provisionally revised. That the same was duly communicated to all the
registered parking contractors.
2.10 That the Alaknanda parking site was allotted on 22.02.2012 on which
the outstanding dues up to February 2015 is Rs. 46,90,848/ and the MLF for
the month of March 2015 is Rs. 8,07,684/, thus totalling Rs. 54,98,532/.
2.11 That on non payment of the licence fees, a demandcumcancellation
notice letter vide letter no. ADC/RPC/20142015/D338 dated 11.02.2015
was served upon the defendant wherein a specific demand was made against
the Alaknanda parking site.
Civil Suit No. 1251/17 SDMC Vs. M/s Balaji & Sons & Anr. page no. 3 of 9
2.12 Vide letter No. RPC/SDMC/2015/D483 dated 28.03.2015, plaintiff
corporation had cancelled the parking contract and has blacklisted the
defendant company M/s Balaji & Co.
2.13 That in spite of several demands, defendant has failed to make the
payment of Rs. 65,98,238/ (including penalty @20% u/s 155 of DMC Act,
1957) and the interest thereupon @18% p.a. That the defendants are thus
liable to make the payment of said amount along with interest @24% p.a.
which is the market rate of interest commonly being charged upon
commercial transactions. Hence, the present suit is filed.
3. Summons of the suit was issued on dated 21.08.2017. Ordinary
process issued to defendant was received back with remarks 'incomplete
address' and other that 'no such company at the address'. These were the
same addresses which were furnished by the defendant when the contract
was entered with the plaintiff and parking site was taken over. Thereafter, the
Defendant was duly served through electronic mode vide email dated
03.10.2017. An affidavit of service along with 65B of Evidence was filed by
the plaintiff. Despite being duly served, neither the defendant appeared nor
WS has been filed on behalf of defendant till date. Hence defendant was
proceeded exparte accordingly.
4. Evidence:
4.1 In exparte evidence, Assistant Commissioner, RP Cell, stepped
into the witness box on behalf of the plaintiff and deposed vide affidavit of
evidence exhibited as Ex.PW1/A reiterating the contents of the plaint.
4.2. For the sake of brevity and to avoid repetition the contents are not
reproduced. The Assistant Commissioner of SDMC/plaintiff has relied upon
Civil Suit No. 1251/17 SDMC Vs. M/s Balaji & Sons & Anr. page no. 4 of 9
documents which are Ex. PW1 to Ex. PW17. Ex. PW1 to Ex. PW15
(colly). Ex. PW3, Ex. PW12, Ex. PW14 and Ex. PW15 are
photocopies. Counsel for plaintiff submits that the originals were sent
to the defendant thereby only the photocopies were kept on the
record. Submissions were noted. Ex. PW1/16 is also a photocopy,
exhibit mark is given only for the purpose of identification.
This is the entire evidence adduced in this matter.
5. I have heard the submissions advanced by the plaintiff. I have
also perused the entire case record meticulously.
6. Findings:
6.1 Perusal of the pleadings and evidence adduced by the plaintiff,
the terms and conditions of the NIT/contract which is duly signed by the
parties is reflected in Ex. P2.
6.2 The provisional offer letter no. OSD/RPC/D750 dated
24.08.2011 allotting the parking site of Alaknanda in favour of defendant at a
monthly license fee of Rs. 1,11,000/ reflects in Ex. P3.
6.3 That on completion of one year of the contract, a demand notice
was served upon the defendant vide letter No. AC/RPC/2013/D360 dated
18.02.2013 calling up on the defendant to pay the advance MLF for the
second year, i.e. an amount of Rs. 15,48,080/ Ex. P6. Vide letter no. RPC/2
13/D276 dated 09.07.2013, plaintiff corporation has asked the defendant to
deposit the advance MLF of Rs. 15,48,080/ within seven days from date of
receipt of the said letter Ex. P8.
6.4 Ex. P10, the minutes of the coordination committee further
reflects that after examining the ground position and grievances of the
Civil Suit No. 1251/17 SDMC Vs. M/s Balaji & Sons & Anr. page no. 5 of 9
defendant regarding encroachment and execution of civil work by PWD a
remission upto 10% in the monthly license fee w.e.f. 07.06.2013 to
12.09.2013 was granted to the defendants.
6.5 As shown by Ex.P12,Vide letter no. RPC/SDMC/2014/D157
dated 31.10.2014, the SDMC revised the parking rates and the MLF was also
accordingly provisionally revised and the same was duly communicated to all
the registered parking contractors. Demandcumcancellation notice dated
11.02.2015 for total sum of Rs. 46,90,848/ is shown vide Ex. P13. Another
Demand cumcancellation notice letter vide letter no. DC/RPC/2014
2015/D394 dated 09.03.2015 was served upon the defendant wherein a
specific demand for the amount of Rs. 46,90,848/ + 8,07,684/ was made
against the Alaknanda parking site is proved through vide Ex. P14.
6.6 The amount payable by the defendant is calculated herein:
S. No. Month Remarks MLF Total Paid
(Amount) Outstanding Yes/No
1. 23rd Feb, 2012 Advance 1,11,000 Nil Yes
nd
to 22 Feb, MLF + +2491*12
2013 TCS =
(2.244%) 13,61,890/
for one
year paid
2. 23rd Feb, 2013 10% 1,22,100 15,48,080/ Rs.
to 22nd Feb, enhanceme +2740*12+ 11,98,464/
2014 nt in MLF 50,000 = towards
+ TCS 15,48,080/ 80%
(2.244%) licence fee
deposited
by the
Civil Suit No. 1251/17 SDMC Vs. M/s Balaji & Sons & Anr. page no. 6 of 9
contractor
via Pay
Orer No:
008015
dated
21.08.2013
3. 23rd Feb to 31st 10% 13,43,310* 11,10,2956/ No
Oct, 2014 enhanceme 8 Months 9
nt in MLF days =
11,10,295/
4. November 2014 Revised 8,07,684/ 8,07,684/ No
MLF (6
times) =
1,34,614*6
=
8,07,684/
5. December 2014 8,07,684/ 8,07,684/ No
6. January 2015 8,07,684/ 8,07,684/ No
7. February 2015 8,07,684/ 8,07,684/ No
8. March 2015 8,07,684/ 8,07,684/ No Total as on Rs. Total Paid 28.03.2015 66,96,996/ = Rs.
11,98,464/
paid
Balance Rs.
outstanding 54,98,532/
28.03.2015
6.7 Besides that, defendant is exparte; despite being duly served through
electronic mode defendant has chosen not to appear before the court to refute the contentions of the plaintiff. Testimony of the plaintiff's witness has remained unchallenged and unrebutted. There is nothing to disbelieve the Civil Suit No. 1251/17 SDMC Vs. M/s Balaji & Sons & Anr. page no. 7 of 9 unrebutted testimony of the plaintiff's witness or to doubt the authenticity and veracity of the document exhibited and proved on record. The defendant did not come forward to disprove the case of plaintiff as it stands. Therefore, the evidence of the plaintiffs and documents filed by the plaintiffs are deemed to be admitted under the provision of Order XII R. 2A CPC. 6.8 It is noticed that the plaintiff has also claimed 20% penalty on the demand calculated by the Commissioner in terms of provisions under Section 155 of the DMC Act. But, in my considered opinion the said provisions is applicable to the taxes which are recoverable to the SDMC from the assessee who has defaulted therein. Herein the case of the plaintiff is premised on the licence fees recoverable from the defendant on account of leasing out the parking site. Therefore, Section 155 read with Section 154 and Section 153 of the DMC Act is not applicable to the facts of the present case. Accordingly, the claim of the plaintiff qua the penalty of 20% under the said provisions stands declined.
6.9 In view thereof, considering the above discussed facts and circumstances, I am of the considered opinion, plaintiff has proved its case and is entitled to a decree for a sum of Rs. 54,98,532/ alongwith interest @9% per annum from dated 28.03.2015 (the demand cum termination notice), till the realisation of the suit amount.
Cost of the suit is awarded to plaintiff.
Suit stands disposed of accordingly.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Civil Suit No. 1251/17 SDMC Vs. M/s Balaji & Sons & Anr. page no. 8 of 9 Announced in the open Court (Anil Antil) Today on 28.07.2018 ADJ05, South East, District(SE) Saket Court, New Delhi Civil Suit No. 1251/17 SDMC Vs. M/s Balaji & Sons & Anr. page no. 9 of 9