Amit Kumar Tanwar vs Mcd & Anr.
2013 Latest Caselaw 1893 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 26th April, 2013

+                                CS(OS) 2260/2010

      AMIT KUMAR TANWAR                                   ..... Plaintiff
                  Through:              Mr. Rajesh Kumar Chaurasia, proxy
                                        counsel.

                                       versus

      MCD & ANR.                                              ..... Defendants
                          Through: Mr. Sanjeev Sabharwal, Standing Counsel
                          for MCD with Mr. S.K. Sinha UDC in EEM II,
                          Karol Bagh Zone.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1.

The plaintiff instituted this suit for recovery of Rs.24,37,349/-

together with pendente lite and future interest @ 12% per annum from the

MCD pleading -

a. that the plaintiff is the sole proprietor of M/s Amit Construction duly

registered/enrolled as a Municipal Contractor;

b. that the defendant MCD awarded five different work orders to the

plaintiff for execution from time to time;

c. that the position with respect to the said five work orders is as under:

          SL        Date of the       Status
                   work order
         1.        16.06.2005    The plaintiff completed the entire works

within stipulated period and the defendants also inspected the work from time to time and entered the progress in the measurement book on 19th April, 2007 and 13th August, 2007 but deducted Rs.17,958/- from the final bill towards security charges, income tax, surcharge on income tax and vat charges etc.

2. 07.06.2005 The plaintiff completed the entire works within stipulated period and the defendants inspected the work from time to time and entered the progress in the measurement book on 13th August, 2007 but deducted Rs.43,065 towards security charges, income tax, surcharge on income tax and vat charges.

3. 22.03.2006 The plaintiff completed the entire works within stipulated period and the defendants inspected the work from time to time and entered the progress in the measurement book on 11th June, 2007 and 13th August, 2007 but deducted Rs.50889/- from the final bill towards security charges, income tax, surcharge on income tax and vat charges etc.

4. 22.03.2006 The plaintiff completed the entire works (Work within stipulated period and the defendants Order No.: also inspected the work from time to time EEXXIX/T and entered the progress in the measurement C/KBZ/499 book on 30th May, 2007 and 13th August, 2007 but deducted Rs.28099/- from the final bill towards security charges, income tax surcharge on income tax and vat charges etc.

5. 22.03.2006 The plaintiff completed the entire works (Work within stipulated period and the defendants Order No: also inspected the work from time to time EEXXIX/T and entered the progress in the measurement

C/KBZ/500 book on 22nd January, 2008 and 13th August, 2007 but deducted Rs.58206/- from the final bill towards security charges, income tax, surcharge on income tax and vat charges etc.

d. that the defendant was to pay Rs.16,21,970/- to the plaintiff as per

passed bills and Rs.1,57,117/- towards security amount deposited by

the plaintiff but though the bills for all the five contracts were passed

on 18th September, 2007 but payment was not made; hence the suit.

2. The defendant MCD contested the suit pleading that the suit was not

maintainable for want of statutory notice under Section 447/478 of the DMC

Act, 1957; that a single suit for recovery of amounts claimed under different

contracts cannot be filed; that the suit claim is barred by time; that the

plaintiff did not complete the works under any of the five orders within the

prescribed time and there were delays of six months and six days, one year

eight months and 15 days, approximately three years, 11 months and of 18

months and 11 days respectively in completion of the works; that the works

awarded to the plaintiff under each of the contracts were under non-plan

head of accounts and thus payment thereof was to be released depending

upon availability of the funds as per the general terms and conditions of the

contract; that the defendant MCD is liable only to pay the amount of the

passed bill and is not liable for any interest.

3. No replication was filed by the plaintiff.

4. On the pleadings of the parties, the following issues were framed on

6th September, 2011

"1. Whether the works awarded to the plaintiff were completed by him within the time stipulated in the contract? OPP.

2. Whether the suit is barred by limitation, as alleged in the written statement? OPD.

3. To what amount, if any, the plaintiff is entitled as principal sum?

4. Whether the plaintiff is entitled to interest and if so, at what rate and for what amount?

5. Relief."

5. The plaintiff examined himself and closed his evidence.

6. The defendant MCD examined its concerned Executive Engineer but

the plaintiff did not cross examine him stating that since the institution of the

suit, the defendant MCD has cleared the amount of the passed bill as well as

the security deposit, and the dispute remained only qua the interest for the

delay in payment.

7. Mr. Rajesh Kumar Chaurasia, Advocate appearing on behalf of Mr.

Ranjeet Kumar, Advocate has today also stated that the claim in the suit

survives only qua interest as the principal amount has already been paid. He

however informs that he has stated so on the instructions of the plaintiff who

is present in person and is otherwise unable to argue being unaware of the

facts.

8. Per contra, the counsel for the MCD states that there was no clause in

the agreement providing for payment of interest for delay in payment and

has reiterated that the works awarded being under the non-plan head, the

release of funds whereof is dependent upon availability, the plaintiff is not

entitled to any interest.

9. It is not deemed appropriate to await Mr. Ranjeet Kumar, Advocate

for the plaintiff who has chosen not to appear and who has chosen not to

hand over the file to Mr. Chaurasia who is appearing.

10. The record has been examined qua the aspect of interest.

11. The plaintiff in his affidavit by way of examination in chief has

reiterated the contents of the plaint. Nothing qua interest is elicited in his

cross examination.

12. The sole witness of the defendant in his examination in chief qua

interest has reiterated the same stand as in the written statement, of there

being no agreement for payment of interest and of the payment being

dependent upon availability of funds, the works being under a non plan head

of accounts.

13. The work orders proved by the plaintiff are not found to contain any

clause, of the payment for the works thereunder being dependent upon

availability of funds or no interest being payable for the delay in payment.

14. Though the defendants have taken various defences and on which

issues have been framed but the defendants having otherwise admitted

liability and having in fact paid the principal amount claimed in the suit

during the pendency of the suit, the said issues framed fade into oblivion and

need not be gone into.

15. The defendant/MCD in its evidence also has not shown any

agreement or a general condition of the contract whereunder the contractor

may have disclaimed interest for delayed payment.

16. Without any bar to the claim for interest being shown, it is the settled

principle in law that delay in payment has to be compensated by interest.

The pleas of the defendant, of the delay by the plaintiff in execution of the

work, also pale into insignificance once the defendants have not claimed any

damages from the plaintiff on this account and have in fact admitted liability

to the plaintiff and discharged the said liability during the pendency of the

suit. This Court in judgment dated 31 st January, 2013 in CS(OS) No.

1309/2009 titled Varinder Jeet Singh Vs. MCD, also held MCD liable for

interest, in that case @ 10% p.a.

17. Considering the facts and circumstances, it is felt that interest at the

rate of 10% per annum from 60 days after the expiry of the date on which

the bills were passed and till the date of payment would sub-serve justice.

Accordingly, recovery of the principal amount is decreed as satisfied and

interest for delay in payment is decreed in favour of the plaintiff and against

the defendant for interest at the rate of 10% per annum for the period from

60 days after the date when the bills were passed and till the date when the

amount under the bills / security deposit was paid/refunded.

18. The plaintiff shall also be entitled to costs of the suit as per schedule.

19. Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J

APRIL 26, 2013 M