Shri K.P. Raghav vs The Chief Secretary, Govt. Of Nct ...
2007 Latest Caselaw 1499 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The plaintiff is an Engineer, stated to be engaged in the business of undertaking contracts of various nature. The Deputy Conservator of Forests, Government of NCT of Delhi, defendant No. 4 herein, brought out a public notice on behalf of the President of India inviting quotations from interested parties to tender for pitting, planting and maintenance of the plants at specified places in the Territory of Delhi. The plaintiff submitted his tender for work and after negotiation of rates, a letter dated 23.6.1997 (Ex.P1/18) was issued awarding the work of pitting and planting of seedlings to the plaintiff at Rajokari, Jaunapur and Deoli for various quantities of plants. The rates agreed for pitting were @Rs.3.25 per pit and for planting of seedling @Rs.2.85 per plant. Apart from the said work, the plaintiff was also assigned the work of maintenance of plants/seedlings for the rates as under:

First year Aug. 1997 to June 1998 Rs. 2.00 per month

Second Year July 1998 to June 1999 Rs. 1.90 per month

Third year July 1999 to June 2000 Rs. 1.80 per month

2. In this behalf, an order was issued on 30.6.1997 authorising the DCF (South) to enter into such a contract (Ex.P2). The agreement executed in this behalf is exhibited as Ex.P1. The agreement provided both for the rates of pitting and planting of seedlings and for maintenance of seedlings. The agreement also stipulated that the survival percentage of the plants/seedlings should be 80% after the end of three years.

3. The plaintiff claims to have completed the work successfully and started the maintenance work. It is stated that regular inspection used to be carried out. However, the payments of the plaintiff are not cleared.

4. The plaintiff in para-5 of the plaint has set out various bills towards maintenance which remained outstanding for the period from November, 1997 to November, 1998 amounting to Rs. 29,75,917/-. Apart from this, for the other work done, bills were raised in November, 1998 for Rs. 1,62,495/-, which remain outstanding.

5. It is the case of the plaintiff that though subsequently payments for pitting and plantation were cleared belatedly, the payment for the maintenance work was not made. A legal notice dated 7.2.1999 (Ex.P41) is stated to have been served, but no reply was received. The suit has been filed for recovery of the amount due towards maintenance, refund of earnest money of Rs. 50,000/-, past, pendente lite and future interest as also damages for loss of income due to breach of agreement and costs.

6. The suit has been contested by the defendants. One of the pleas raised is that as per the terms and conditions of the Plantation Work (i.e. Clause 7), the disputes had to be referred to Conservator of Forests, which would be final and binding, but no endeavor was made to approach the Conservator. These terms and conditions of Plantation Work are stated to form the basis of the award of tender. Learned Counsel for the defendants states that the plaintiff unilaterally rescinded the agreement forfeiting the rights to claim any monetary benefit from the defendants. The defendants seek to cast doubt on the efficacy of the maintenance work carried out by the plaintiff and so far as the claims of the plaintiff are concerned, it is stated that the defendants never accepted the claims of the plaintiff nor ever assured payment.

7. On the pleadings of the parties, the following issues were framed vide order dated 10.12.2004:

1. Whether the suit is not maintainable in view of Clause 7 of the 'Terms and Conditions of Plantation Work'? OPD.

2. Whether the plaintiff has committed any breach of the contract by not completing the work? OPD.

3. Whether the plaintiff has preformed all its obligations under the contract OPP.

4. Whether the plaintiff was justified in rescinding the contract in the circumstances of the case OPP.

5. Whether the Plaintiff is entitled to the refund of security amount of Rs. 50,000/-? OPP.

6. Whether the Plaintiff is entitled to damages? OPP.

7. Whether the Plaintiff is entitled to interest on unpaid bills? OPP.

8. Relief.

8. On hearing learned Counsel for the parties and perusal of the pleadings, evidence on record and the documents, the following findings are arrived.

ISSUE No. 1: Whether the suit is not maintainable in view of Clause 7 of the 'Terms and Conditions of Plantation Work'?

9. Onus of proving this issue was on the defendants. Learned Counsel for the defendants has not been able to point out from the record as to whether these terms and conditions for Plantation Work have been filed, Clause-7 of which has been relied upon. Thus, the defendants have been unable to discharge the onus. The issue is answered against the defendants.

ISSUE No. 2: Whether the plaintiff has committed any breach of the contract by not completing the work?

10. The defendants have made general averments about the breaches committed by the plaintiff. On being asked to point out whether any communication was addressed to the plaintiff bringing to the notice of the plaintiff any breaches, learned Counsel has been able to point out no such document. Learned Counsel sought to refer to a letter dated 6.10.1997, but the said letter was denied by the plaintiff and has not been proved. No notice to produce the original document was apparently given and thus, no secondary evidence could be led. Thus, no reliance could be placed on the same.

ISSUE No. 3: Whether the plaintiff has preformed all its obligations under the contract?

11. It is difficult to accept that where the defendants are public authorities, any default on the part of a contractor would not have been even brought to the notice of the contractor in writing. Not only that, learned Counsel for the plaintiff rightly points out that the bills submitted by the plaintiff had been admitted and the testimony held shows that the payments were not being made to the plaintiff on account of some financial constraints.

12. In my considered view, the defendants have clearly failed to discharge the onus and the issue is answered against the defendants.

ISSUE No. 4: Whether the plaintiff was justified in rescinding the contract in the circumstances of the case?

13. The records show that PW1 Shri K.P.Raghav, who is the plaintiff, has affirmed to the satisfactory work being carried out and to the factum of the officials of the defendants carrying out regular inspection from time to time. The plaintiff raised bills again from time to time for various amounts and it is stated that these bills were duly approved and verified by the officials of the defendants after physical inspection/verification and the work was certified. The invoices submitted have been proved as Ex.P6 to Ex.P43. Since the payments were not being made, various reminders/letters were sent, which are exhibited as Ex.P37 to Ex.P40. As the payments were not forthcoming, after putting the defendants to notice vide letter dated 30.11.1998 (Ex.P40), the plaintiff withdrew from the work. Defendant No. 1 subsequently informed the plaintiff vide letter dated 1.9.2000 (Ex.P5) that the file of the plaintiff was missing.

14. Shri Radhey Shyam, Forest Ranger, Tughlakabad (South) was summoned as PW2 to produce the relevant records being the Plantation Register and Stock Registers for the work assigned to the plaintiff. The Stock Registers have been proved at Ex.PW2/A to Ex.PW2/H. The witness has, however, stated that the summoned records did not include the plantation records of bill Nos. 171 and 172, both dated 29.6.1998. The defendants examined Shri Tilak Chand, Assistant Conservator of Forests (West) as DW3. The said witness affirmed to the fact that the bills submitted by the plaintiff in respect of the plantation work done by him in the Deoli area were verified on the basis of survival rate of the plants and the amounts were duly entered in the relevant Stock Registers. The said witness expressed lack of awareness about the terms and conditions of the agreement executed between the parties. The witness confirmed that the plantation work was inspected by a team of Officers on 28.9.1998 and the report was submitted to the Department (Ex.DH2/1). An identical affidavit has been filed by Shri Suresh Kumar (DW2), Ex-Forest Range Officer (Mehrauli Range) for the Jaunapur and Deoli areas.

15. In the cross-examination of Shri Tilak Chand (DW3), it is once again stated that the work of the plaintiff was supervised and was duly entered in the Stock Registers. The inspection team verified the Stock Registers and was satisfied with the same. The bills were also verified and checked by him and thereafter recommended for payment, the same being sent to the Deputy Conservator of Forests (South). He has affirmed that such bills were neither turned down nor was any objection raised about the same and that during his tenure, he has found plaintiff's work satisfactory. On being confronted, he admitted the report of the inspection team (Ex.DW2/1). The inspection report is as under:

INSPECTION REPORT OF PLANTATION 1997-98 UNDER WASTELAND DEVELOPMENT SCHEME EXECUTED BY M/S K.P. RAGHAV M/s K.P. Raghav executed the plantation 1997-98 vide work order No. F. 25/DCF(S)/GSLP/97/2828-25 (CF) dated 23.6.97 under Wasteland Development Scheme and planted 45000 Nos. seedlings each at Jaunapur and Rajokari and 10000 Nos. at best on tender basis at the lowest rate among tenderer.

The payment of contractor was not released in view of financial or budget constraints during 97-98. The No. of pits and seedlings planted had been verified by Range Officer concerned.

In pursuance of direction of Conservator of Forests dated 18.8.98 Deputy Conservator of Forests West, Central and South inspected and plantation on 28.8.98.

The plantation executed at different sites were inspected randumly and covered more than 70% area. It has been observed that mixed plantation of various species viz Papri, Ailanthus, Pilkhan, Gullar, Lasora, Acacia, Jangal Jalebi, Imli, Been, Bakain, Kachnar, was done and survival percentage appears to 80%. The distance of seedlings have been maintained 300x300 on ordinary soil but in rocky and mined area especially in Rajokari could not be adhered too. The dead seedlings have been found replaced in the field.

Due to rocky outcrop the growth of seedlings is slow however, condition of plantation is satisfactory.

Sd/- Sd/- Sd/-

D.C.F. (WEST) D.C.F. (CENTRAL) D.C.F.(SOUTH)

16. Once again in cross-examination of Shri Suresh Kumar (DW3), identical facts have been stated.

17. Another witness examined is Ms.Kamal Preet, Deputy Conservator of Forests (South) (Ex.DW1), who has stated that insofar as the record of the case were concerned, the same could not be located and the file was the reconstructed file. An interesting aspect is that in the cross-examination, it is once again reiterated that the Department had made its best efforts to release payments to the plaintiff. Mr.Yogesh, the then Deputy Conservator of Forests was also examined as a witness (DW4). The said witness has deposed that the maintenance work was lacking and was not as per schedule. There were also irregular patches of vacant land with plantation due to lack of water and cattle grazing and it is in view thereof, that a letter dated 6.10.1997 was addressed. It may be noticed that the letter dated 6.10.1997 is only an office copy. No notice to produce the original was given and, thus, the said document cannot be exhibited. The witness states that he was visiting the site regularly and used to maintain nothings, but it was stated that the file had been misplaced.

18. A further affidavit has been filed by Shri R.B.Shukla, Upper Division Clerk, South Division (DW5), who has given the details of the bills submitted and the payments made. It would be relevant to reproduce the deposition as under:

2. I say that the Range Officers are charged with the responsibility of supervising the work executed by the Contractors and are required to verify the bills of the Contractors as per the work executed and enter the verified amount in the Stock Register. In the present case the verification was done according to the survival percentage of the seedlings on site and the verified amounts were entered into the stock register. A chart giving the Bills submitted by the Plaintiff for the Devli Area of Wildlife Sanctuary of Asola Bhatti as verified and entered into the Stock Register by the then Range Officer, Mr. Tilak Chand is set out hereinbelow:

 Sl.    Bill       Bill       Verification       Amount
No.    No.       Amount        Survival        Verified
                              Percentage
1      119      80,000/-         96%            76,800/-
2      129      40,000/-         87%            34,800/-
3      161      40,000/-         87%            34,800/-
4      173      38,000/-         80%            30,400/-
5      176      38,000/-         81%            30,780/-
6      179      38,000/-         88%            33,440/-
7      184      27,867/-         81.5%          22,711/-
8      170      15,200/-         90%            13,680/-
9      187       7,600/-         82%             6,095/-

 

I say that the Bill Nos. 166 and 167 submitted by the Plaintiff in the present proceedings are not entered in the Stock Register pertaining to Devli in my custody.

3. I say that the Plaintiff has suppressed the fact that the following bills pertaining to Devli have been paid as per the records of the account section of the Office of the Deputy Conservator of Forests (South) as set out in the chart set out hereinbelow:

 Sl.    Bill       Bill       Amount Paid     Date of payment
No.    No.       Amount                      and Cheque No.
1      170       15,200/-      13,680/-      13.08.1999 Ch. No. 986359
2      187       7,600/-        6,095/-             -do-
 

4. I say that a chart giving the Bills submitted by the Plaintiff for the Jauna Pur and Rajokari Area of South Forest Division as verified and entered into the Stock Register by the then Range Officer, Mr.Suresh Kumar Thakur is set out hereinbelow:

 Sl.    Bill       Bill       Verification       Amount
No.    No.       Amount        Survival        Verified
                              Percentage
1      109      1,58,000/-        96%          1,72,800/-
2      110      1,80,000/-        95%          1,71,000/-
3      117      1,80,000/-        95%          1,71,000/-
4      118      1,80,000/-        96%          1,72,800/-
5      127      1,80,000/-        92%          1,65,600/-
6      128      1,80,000/-        93%          1,67,400/-
7      159      1,80,000/-        88%          1,58,400/-
8      160      1,80,000/-        89%          1,60,000/-
9      174      1,71,000/-        84%          1,43,640/-
10     175      1,71,000/-        85%          1,45,350/-
11     177      1,71,000/-        91%          1,55,610/-
12     178      1,71,000/-        90%          1,53,900/-
13     182      1,16,850/-        86%          1,00,491/-
14     183        91,200/-        84%            76,608/-
15     168        41,040/-        95%            38,988/-
16     169        52,090/-        96%            50,007/-
17     185        20,520/-        96%            19,700/-
18     186        26,045/-        95%            24,745/-
 

5. I say that Bill Nos.162, 164, 165, 171 and 172 submitted by the Plaintiff in the present proceedings are not entered in the Stock Register pertaining to Rajokari and Jaunapur in my custody.

6. I say that the Plaintiff has suppressed the fact that the following Bills pertaining to Rajokari and Jaunapur have been paid as per the records of the account section of the Office of the Deputy Conservator of Forests (South) as set out in the chart set out hereinabove:

 Sl.    Bill       Bill       Amount Paid     Date of payment
No.    No.       Amount                      and Cheque No.
1      168       41,040/-      38,988/-      13.08.1999 Ch.No.986359
2      169       52,090/-      50,007/-           -do-
3      185       20,520/-      19,700/-           -do-
4      186       26,045/-      24,745/-           -do-

 

19. The aforesaid evidence shows that other than one witness, the oral testimony of one witness-Shri Yogesh (DW4), there is nothing which has come on record to substantiate the defense of the defendants that the plaintiff was not carrying out the work as per requirement. The stand of the other witnesses is that the work was found satisfactory and, in fact, payments were to be made. The payments were, however, not made apparently due to some financial constraints. The inspection report (Ex.DW2/1) also supports the case of the plaintiff.

20. In view of the aforesaid, it cannot be said that the plaintiff did not carry out the work and the affidavit of Shri R.B. Shukla (DW5) gives the details of the payment of the bills made other than five bills as mentioned in para-5. However, bills have been proved as Ex.P6, Ex.P9, Ex.P13, Ex.P42 and Ex.P43. The receipt of the bills have been admitted. The issue of entry in the Stock Registers is an internal matter of the defendants. It has not been pointed out as to whether verification of these bills were found not be in accordance with with contract and whether the plaintiff was ever informed about the same.

21. I am, thus, of the considered view that even these bills cannot be doubted. However, if the bills submitted by the plaintiff and the verified amount is taken, by and large the verified amount was to the extent of about 85%. I deem it appropriate to follow some methodology, of course, with some element of subjectivity, insofar as the deduction is concerned, and, thus, direct that these bills should be treated to have been approved to the extent of 85%.

22. If the amounts as per the aforesaid affidavit are taken, then it will be found that the total bills verified by the defendants as per paras 2 and 4 are to the tune of Rs.22,67,814/- out of which Rs.1,53,215/- has been paid as per paras 3 and 6. The balance outstanding is, thus, Rs.21,14,599/-. The five disputed bills are to the tune of Rs.8,86,000/- and if they are discounted by 15%, the amount would come to Rs.7,53,100/- (Rs.8,86,000-Rs.1,32,900). Thus, the total amount payable would be Rs. 28,67,699/-.

23. In view of the aforesaid, I find that there is nothing on record to show that the plaintiff has not performed his obligation under the contract.

24. It is not in dispute that the defendants were not paying the plaintiff the amounts of maintenance. In such a situation, the plaintiff cannot be expected to indefinitely carry out the work without the payment being made and the plaintiff was, thus, justified in rescinding the contract. The issue is answered accordingly.

ISSUE NO. 5: Whether the Plaintiff is entitled to the refund of security amount of Rs.50,000/-? OPP

25. The plaintiff had given security amount of Rs.50,000/-. The plaintiff is not at fault. There is no reason for the defendants to detain the security amount. The plaintiff is, thus, entitled to the said security amount.

ISSUE NO. 6: Whether the Plaintiff is entitled to damages? OPP

26. The plaintiff himself rescinded the contract. Even otherwise there is nothing on record to substantiate any damages as claimed nor is any evidence led in this behalf. The issue is answered against the plaintiff.

ISSUE NO.7: Whether the Plaintiff is entitled to interest on unpaid bills? OPP

27. The amounts have remained outstanding and due from the defendants despite the legal notice dated 7.2.1999. Once the legal notice had been served, at least,

soon thereafter the amounts should have been paid in a month or so and, thus, cleared at least by 31.3.1999. The plaintiff, thus, must be entitled to interest from 1.4.1999 till date of payment. Keeping in mind the prevailing interest rates, I deem it appropriate to grant to the plaintiff simple interest @12% per annum.

ISSUE NO.8: Relief

28. A decree is passed in favor of the plaintiff and against the defendants for the sum of Rs.28,67,699/- along with interest @12% per annum, simple interest from 1.4.1999 till date of payment. Plaintiff shall also be entitled to proportionate costs. Decree sheet be drawn up accordingly.