M/S Centre For Research Planning ... vs Union Of India
2010 Latest Caselaw 2407 Del

                                                    UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                           RFA No.572/1994


                                    Date of Decision: May 05, 2010


       M/S CENTRE FOR RESEARCH PLANNING AND ACTION
                                              ......Appellant
                    through Mr. Yakesh Anand, Advocate

                  versus


       UNION OF INDIA                      ..... Respondent
                     through Mr. Jatan Singh, Advocate with
                     Mr. Ashok Singh, Advocate

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the „Digest‟? No

REKHA SHARMA, J. (ORAL)

The facts of the case are that the respondent had engaged the

services of the appellant for undertaking study on the „Optimization of

Use and Cost of Motor Vehicles‟ of the Department of Posts at

Calcutta. The approval to undertake the study was conveyed to the

appellant through a Memorandum dated August 22, 1991. Before I

proceed further, it is important to notice clause (xii) of the said

Memorandum for much turns on it. It runs as under:-

"On this basis to develop an action plan for implementation by DOP over the next about three years so as to

RFA No.572/1994 Page 1 substantially increase the efficiency of its vehicular fleet in terms of considerable reduction in cost not only per KM but also in terms of per unit of postal articles handled or work load performed.

For undertaking the study the department will pay to CERPA a consultancy fee of Rs. 1.46 lakhs as under:

50% on approval of the Proposal.

25% on submission of Draft Report.

15% on approval of Draft Report.

10% on delivery of Final Report.

The report will be made available to the Department of Posts within three months from the date of assignment.

Shri L.D.Bonnel, Chief postmaster General, West Bengal Circle, Calcutta has been nominated as Project Liaison officer."

A copy of this Memorandum, amongst others, was sent to

Shri S.P.Ahuja, Honorary Director of the appellant with the following

endorsement:-

"Shri S.P.Ahuja, Hony. Director Centre for Research Planning and Action, 16, Dakshneshwar, 10-Hailey Road, New Delhi- 110 001 for undertaking the study as per terms of reference specified in the Memo ibid w.r.to their letter No.CERPA/980/5204/91 dated 7.4.91. He is requested to convey his acceptance and also the programme of the study team."

The appellant on receiving copy of the aforesaid Memorandum

wrote to the respondent on August 23, 1991 stating therein that, "we

propose to initiate work on this study from 3rd September, 1991 and

complete it by about 30th November, 1991", and along with the letter,

also sent bill No.014 dated August 23, 1991 for Rs.73,000/- being the

50% amount towards the approval of the proposal.

The respondent not only did not pay the sum of Rs.73,000/- or

any further amount in terms of the Memorandum dated

August 22, 1991 but, on the contrary, sent a letter dated

RFA No.572/1994 Page 2 December 09, 1991 informing the appellant that it had called off the

study. Feeling aggrieved by the non-payment of its dues, the

appellant filed a suit in the Court of the District Judge for the recovery

of Rs.1,05,265/- but met with no success. The learned Judge

dismissed the suit vide judgment dated April 23, 1994. Hence, the

present appeal by the appellant.

It is submitted by the learned counsel for the respondent that

there was no justification on the part of the appellant to have raised

the bill for Rs.73,000/- on August 23, 1991 when the Memorandum

according approval to undertake the study itself was dated

August 22, 1991 and the schedule of payment as laid down in the said

Memorandum provided that 50% amount of the consultancy fee of

Rs.1.46 lacs was payable on approval of the proposal. The submission

is based on the premise that there was a gap of just one day between

according of approval by the respondent and submission of the bill,

and that in such a short span, it was neither possible for the appellant

to have submitted the proposal, nor for the respondent to have

accorded approval to the same. Hence, as per the learned counsel for

the respondent, the learned trial Judge rightly dismissed the claim of

the appellant.

It is not disputed by the learned counsel for the appellant that

the Memorandum for undertaking the study of „Optimization of Use

and Cost of Motor Vehicles‟ was dated August 22, 1991, but it is

stated that in so far as the proposal for such a study is concerned, it

was sent to the respondent much earlier and it was, in fact, approved

by the respondent by letter dated April 02, 1991 addressed to the

RFA No.572/1994 Page 3 Honorary Director of the appellant by the Joint Secretary of the

respondent, namely, Shri V.S.Ailawadi. It will be appropriate to

reproduce the letter of April 02, 1991:-

"Kindly refer to your letter No.CERPA/905/5036/91 dated the 12th March, 1991 regarding the proposal for `Study of Optimisation of Use and Cost of Motor Vehicles‟, I am to say that your proposal has been approved subject to the following modifications:-

i) The proposed study will also include a survey of different types of vehicles available in the market and recommendations of the most suitable vehicles, including suitability of three wheelers, which will meet the requirement of the Department of Posts for carriage of mail with reference to Optimise freight load/volume etc.

ii) The modelities of present arrangements of purchase of chassies and body building and give recommendations both for speeding up the process and for ensuring economy; and

iii) Proper mix of vehicles of various sizes/loads etc.

2. You are requested to include the above modifications within the present estimated cost of the proposed study."

I may at this stage note that unfortunately, the trial court record

has not been made available to this court because inadvertently, it

was destroyed during weeding of the records. However, the learned

counsel for the appellant has placed on record whatever documents

were available with him in his record.

A perusal of the impugned judgment goes to show that a witness

from the Department, namely, Shri A.L.Chopra, Assistant Accounts

Officer appeared as DW-1 and he admitted that letter dated

April 02, 1991, referred to hereinabove was written by

Shri V.S.Ailawadi. He also referred to the original of that letter as

RFA No.572/1994 Page 4 Exhibit DW-1/PX2. It is thus clear from the evidence of

Shri A.L.Chopra that some proposal was sent by the appellant to the

respondent and its approval was conveyed through letter dated

April 02, 1991. This being the position, the raising of the bill by the

appellant for Rs.73,000/- representing 50% of the consultancy fee of

Rs.1.46 lacs payable on approval of the proposal was not unfounded.

It is evident from the letter dated April 02, 1991 that the proposal by

the respondent was sent much in advance and that on

August 22, 1991, only a formal communication was sent to the

appellant, consequent to which the appellant was to undertake the

detailed study for „Optimization of Use and Cost of Motor Vehicles‟ in

terms of the Memorandum. In view of the proposal having already

been approved, the appellant, in my view, became entitled to 50% of

the consultancy fee of Rs.1.46 lacs immediately on the issuance of

Memorandum dated August 22, 1991 and as regards the balance, it

was to be paid to it only on the submission of the Draft Report,

approval of the Draft Report and delivery of Final Report.

For what has been noticed above, I hold that the appellant is

entitled to a sum of Rs. 73,000/- towards 50% of the approval of the

proposal. As regards the balance, the learned counsel for the

respondent has pointed out that the appellant did not adhere to the

schedule as laid down in Clause 12 of the memorandum dated

August 22, 1991 and hence, nothing further was payable in terms

thereof. It is not disputed by learned counsel for the appellant that

the schedule as laid down in Clause 12 of the Memorandum was not

adhered to. As a matter of fact, the appellant in a letter dated

RFA No.572/1994 Page 5 October 29, 1991 informed the respondent that it will initiate the field

work in first week of November, 1991 whereas it was required to

complete the entire study by November 30, 1991.

Having regard to the fact that the sum of Rs.73,000/- was

wrongly withheld by the respondent, I deem it proper to award some

lump-sum amount to the appellant towards delayed payment.

Accordingly, I award a further sum of Rs.50,000/-. The respondent

shall make the payment within three months from now.

With this direction, the appeal is disposed of.

REKHA SHARMA, J.

MAY 05, 2010 PC/ka.

RFA No.572/1994                                                      Page 6