M/S Satya Parkash and Bros Pvt Ltd Vs. North Delhi Municipal Corporation and Anr - Court Judgment

SooperKanoon Citationsooperkanoon.com/30071
CourtDelhi High Court
Decided OnDec-19-2014
JudgeManmohan Singh
Appellant M/S Satya Parkash and Bros Pvt Ltd
RespondentNorth Delhi Municipal Corporation and Anr
Excerpt:
* in the high court of delhi at new delhi order delivered on:19. h december, 2014 % + cs(os) 1112/2014 m/s satya parkash & bros pvt ltd ..... plaintiff through mr.mr.arun kumar gupta, adv. with mr.achal gupta, adv. versus north delhi municipal corporation & anr ..... defendants through mr.d.k. sharma, adv. coram: hon'ble mr.justice manmohan singh manmohan singh, j.1. this is a suit for recovery filed by the plaintiff against the defendants under order xxxvii cpc for a sum of rs.25,71,705/along with pendent lite and future interest.2. brief facts of the case as stated in the plaint are that plaintiff, a private limited company, is registered with several government organisations as class-i contractors and deals with c.p.w.d, state p.w.ds., n.h.a.i., m.c.d., ndmc etc. mainly in road works.3. it is stated that defendants had invited tenders for the work of "development and strengthening of road by providing dense carpeting from h.no.15/10 to 17/1 in indira vikas colony in c-ii/clz" which was subsequently awarded to the plaintiff vide work order no.ee-m-ii/tc/2007-08/507 dated 25th march, 2008. an agreement no.e.e.mii/tc/2007-08/69/01/507 was also executed between the parties in this regard. the total cost of the work was rs.18,24,667/and plaintiff submitted rs.16,650/- as earnest money vide gb no.405010 dated 28th december, 2007. the time of completion of work order was four months starting from 10th day from the date of issuance of work order issued on 25th march, 2008.4. it has been stated that the plaintiff completed the work on 31st july, 2008 i.e. before the stipulated date of completion to the satisfaction of the defendant. after completion of the work, plaintiff approached the officials of the defendants for payment when it was informed that the work would be tested by 3rd party quality control cell and by the laboratory national test house, ghaziabad for quality assurance. the samples were lifted by quality control cell from the executed work on 14th january, 2009. it was informed that since the work in question has a defect liability period of 5 years, the work is to be inspected thoroughly and only then would be the payment made.5. it has been further stated that the site was again inspected in the year 2011 by the officials where it was found that there is no visible structural defect/crack, bleeding, development of pot holes etc. on road covered under the agreement.6. thereafter the plaintiff again pressed for making payment when the concerned junior engineer prepared a note wherein a recovery statement of a sum of rs.34,822/- was prepared. the said note was forwarded to the higher officials and again the site was inspected and recovery of rs.34,822/- was approved in july, 2012.7. after the approval of the recovery, the defendant prepared a final bill in their measurement book/records on 8th august, 2012 for a sum of rs.14,21,867/- besides the security amount of rs.1,69,416/8. it is stated by the plaintiff that on 21st november, 2012, the plaintiff wrote to the defendants regarding illegal recoveries in the first and the final bill of the plaintiff and requested the defendants to correct the same and release the pending payment immediately after the said correction.9. since the plaintiff did not recieve its payment, it wrote to the defendants on 18th january, 2013 requesting it to release the pending payment on immediate basis along with interest. on failing to receive a response from the defendants, plaintiff on 14th june, 2013 asked the defendants to supply copies of final bill, recovery statement etc. to initiate legal proceedings against it.10. in response to the said letter, plaintiff received few documents along with an office noting dated 13th december, 2011, signed by the assistant engineer- iv/clz, the executive engineer-ii/clz and the superintending engineer/clz. it has been stated that it was admitted therein by the defendants that plaintiff had completed the work within the stipulated period, the tests reports of the work done were satisfactory and even after passage of so many years there was no structural defect, cracks, undulations, bleedings, honey combing, development of pot holes and erosion etc. on the road. it was further stated therein that a sum of rs.34,822/- will be recovered from the final bill.11. it is stated that defendant deducted 10% security amount of rs.1,69,416/- while arriving at the final bill, which is also liable to be refunded to the plaintiff after expiry of the defect liability period of 5 years, which has already expired on 1st august, 2013.12. it is stated that plaintiff had been making verbal and written requests to the defendants to release its payments vide letters dated 11th august, 2012, 21st november, 2012, 18th january, 2013 and 14th june, 2013 whereby plaintiff had brought to the notice of the defendant that the amount of actual work done was rs.16,94,164/out of which a deduction of about rs.84,821/- has been wrongly made which is to be included in the final amount rs.14,21,867/which becomes rs.15,06,688/-. despite the correspondence bringing to defendant's notice the said difference of the amount, the defendants have failed to pay any amount.13. after waiting for the receipt of its dues from the defendants, plaintiff sent a legal notice dated 20th december, 2013 calling upon the defendants to clear all its dues of rs.14,21,867/- and rs.1,69,416/- towards security deposit along with interest @12% without any further delay. since the said notice was not replied to and on failure to receive any payment, plaintiff filed the present suit for recovery of an amount of rs.25,71,705/-. the details of the same are given as under : a. first amount 14. and final bill rs. 14,21,867/- b. interest @ 12 % p.a. on final bill for 5 years and 8 months w.e.f. 1st august, 2008 to 31st march, 2014 rs. 9,66,869/- c. security amount rs. 1,69,416/- d. interest on security amount for 8 months w.e.f. 1st august, 2013 to 31st march, 2014 rs. 13, 553/- total rs. 25,71,705/- the matter was listed before court on 22nd april, 2014 when summons to enter appearance were issued to the defendants. the defendant no.1 was served on 12th may, 2014 and memo of appearance was filed on 30th june, 2014 after a delay of 38 days. the application filed by defendant no.1 being i.a.no.18284/2014 seeking condonation of delay in filing the memo of appearance was dismissed vide order dated 30th september, 2014 since no one appeared on behalf of defendant no.1. the said application was dismissed after hearing the learned counsel for the plaintiff. no review was filed by the defendant no.1. no one appeared on behalf of defendant no.2. in the absence of any defence, the suit of the plaintiff was liable to be dismissed. when the matter was listed before court on 29th october, 2014, the same was adjourned to 3rd november, 2014. though, it was not recorded, learned counsel for defendant no.1 mentioned that in case the interest component is pressed by the plaintiff, he may advise his client to pay principle amount. however, on 8th december, 2014 new counsel appearing on behalf of defendant no.2 did not agree on behalf of his client to pay even principle amount, rather the statement was made that since there is no arbitration clause in the agreement, his client has now filed the application under section 8 of arbitration and conciliation act, 1996 in the registry. the matter was adjourned to 9th december, 2014 when defendant no.1’s three applications were listed. the details of the same are given as under : (a) i.a. no.25154/2014 (under section 8 of arbitration & conciliation act, 1996) (b) i.a. no.25155/2014 (under order 9 rule 9 read with section 151 cpc) (c) i.a. no.25156/2014 (under section 5 of limitation act read with section 151 cpc) 15. meanwhile defendants have filed an application bearing i.a. no.25154/2014 under section 8 of the arbitration and conciliation act, 1996 stating that the agreement executed between the parties contains an arbitration clause which has been concealed by the plaintiff, accordingly it is prayed that the matter be referred for arbitration. another application bearing i.a. no.25155/2014 has also been filed by the defendants under order 9 rule 9 read with section 151 cpc for restoration of application being i.a.no.18284/2014 which was dismissed vide order dated 30th september, 2014. application bearing i.a. no.25156/2014 is filed seeking condonation of delay in filing i.a. no.25155/2014.16. under these circumstances, it becomes necessary for the plaintiff to file the replies to these applications before passing the final order. let the replies be filed within four weeks, rejoinder be filed within four weeks thereafter. list these pending applications along with main suit for consideration on 23rd march, 2015. (manmohan singh) judge december19 2014
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI Order delivered on:

19. h December, 2014 % + CS(OS) 1112/2014 M/S SATYA PARKASH & BROS PVT LTD ..... Plaintiff Through Mr.Mr.Arun Kumar Gupta, Adv. with Mr.Achal Gupta, Adv. versus NORTH DELHI MUNICIPAL CORPORATION & ANR ..... Defendants Through Mr.D.K. Sharma, Adv. CORAM: HON'BLE MR.JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J.

1. This is a suit for recovery filed by the plaintiff against the defendants under Order XXXVII CPC for a sum of Rs.25,71,705/along with pendent lite and future interest.

2. Brief facts of the case as stated in the plaint are that plaintiff, a private limited company, is registered with several Government Organisations as Class-I Contractors and deals with C.P.W.D, STATE P.W.Ds., N.H.A.I., M.C.D., NDMC etc. mainly in road works.

3. It is stated that defendants had invited tenders for the work of "Development and Strengthening of road by providing Dense Carpeting from H.No.15/10 to 17/1 in Indira Vikas colony in C-II/CLZ" which was subsequently awarded to the plaintiff vide work order No.EE-M-II/TC/2007-08/507 dated 25th March, 2008. An agreement No.E.E.MII/TC/2007-08/69/01/507 was also executed between the parties in this regard. The total cost of the work was Rs.18,24,667/and plaintiff submitted Rs.16,650/- as earnest money vide GB No.405010 dated 28th December, 2007. The time of completion of work order was four months starting from 10th day from the date of issuance of work order issued on 25th March, 2008.

4. It has been stated that the plaintiff completed the work on 31st July, 2008 i.e. before the stipulated date of completion to the satisfaction of the defendant. After completion of the work, plaintiff approached the officials of the defendants for payment when it was informed that the work would be tested by 3rd Party Quality Control Cell and by the Laboratory National Test House, Ghaziabad for quality assurance. The samples were lifted by Quality Control Cell from the executed work on 14th January, 2009. It was informed that since the work in question has a defect liability period of 5 years, the work is to be inspected thoroughly and only then would be the payment made.

5. It has been further stated that the site was again inspected in the year 2011 by the officials where it was found that there is no visible structural defect/crack, bleeding, development of pot holes etc. on road covered under the agreement.

6. Thereafter the plaintiff again pressed for making payment when the concerned Junior Engineer prepared a note wherein a recovery statement of a sum of Rs.34,822/- was prepared. The said note was forwarded to the higher officials and again the site was inspected and recovery of Rs.34,822/- was approved in July, 2012.

7. After the approval of the recovery, the defendant prepared a final bill in their measurement book/records on 8th August, 2012 for a sum of Rs.14,21,867/- besides the security amount of Rs.1,69,416/8. It is stated by the plaintiff that on 21st November, 2012, the plaintiff wrote to the defendants regarding illegal recoveries in the first and the final bill of the plaintiff and requested the defendants to correct the same and release the pending payment immediately after the said correction.

9. Since the plaintiff did not recieve its payment, it wrote to the defendants on 18th January, 2013 requesting it to release the pending payment on immediate basis along with interest. On failing to receive a response from the defendants, plaintiff on 14th June, 2013 asked the defendants to supply copies of final bill, recovery statement etc. to initiate legal proceedings against it.

10. In response to the said letter, plaintiff received few documents along with an office noting dated 13th December, 2011, signed by the Assistant Engineer- IV/CLZ, the Executive Engineer-II/CLZ and the Superintending Engineer/CLZ. It has been stated that it was admitted therein by the defendants that plaintiff had completed the work within the stipulated period, the tests reports of the work done were satisfactory and even after passage of so many years there was no structural defect, cracks, undulations, bleedings, honey combing, development of pot holes and erosion etc. on the road. It was further stated therein that a sum of Rs.34,822/- will be recovered from the final bill.

11. It is stated that defendant deducted 10% security amount of Rs.1,69,416/- while arriving at the final bill, which is also liable to be refunded to the plaintiff after expiry of the defect liability period of 5 years, which has already expired on 1st August, 2013.

12. It is stated that plaintiff had been making verbal and written requests to the defendants to release its payments vide letters dated 11th August, 2012, 21st November, 2012, 18th January, 2013 and 14th June, 2013 whereby plaintiff had brought to the notice of the defendant that the amount of actual work done was Rs.16,94,164/out of which a deduction of about Rs.84,821/- has been wrongly made which is to be included in the final amount Rs.14,21,867/which becomes Rs.15,06,688/-. Despite the correspondence bringing to defendant's notice the said difference of the amount, the defendants have failed to pay any amount.

13. After waiting for the receipt of its dues from the defendants, plaintiff sent a legal notice dated 20th December, 2013 calling upon the defendants to clear all its dues of Rs.14,21,867/- and Rs.1,69,416/- towards security deposit along with interest @12% without any further delay. Since the said notice was not replied to and on failure to receive any payment, plaintiff filed the present suit for recovery of an amount of Rs.25,71,705/-. The details of the same are given as under : a. First amount 14. and Final Bill Rs. 14,21,867/- b. Interest @ 12 % P.A. on final bill for 5 years and 8 months w.e.f. 1st August, 2008 to 31st March, 2014 Rs. 9,66,869/- c. Security Amount Rs. 1,69,416/- d. Interest on security amount for 8 months w.e.f. 1st August, 2013 to 31st March, 2014 Rs. 13, 553/- TOTAL Rs. 25,71,705/- The matter was listed before Court on 22nd April, 2014 when summons to enter appearance were issued to the defendants. The defendant No.1 was served on 12th May, 2014 and memo of appearance was filed on 30th June, 2014 after a delay of 38 days. The application filed by defendant No.1 being I.A.No.18284/2014 seeking condonation of delay in filing the memo of appearance was dismissed vide order dated 30th September, 2014 since no one appeared on behalf of defendant No.1. The said application was dismissed after hearing the learned counsel for the plaintiff. No review was filed by the defendant No.1. No one appeared on behalf of defendant No.2. In the absence of any defence, the suit of the plaintiff was liable to be dismissed. When the matter was listed before Court on 29th October, 2014, the same was adjourned to 3rd November, 2014. Though, it was not recorded, learned counsel for defendant No.1 mentioned that in case the interest component is pressed by the plaintiff, he may advise his client to pay principle amount. However, on 8th December, 2014 new counsel appearing on behalf of defendant No.2 did not agree on behalf of his client to pay even principle amount, rather the statement was made that since there is no arbitration clause in the agreement, his client has now filed the application under Section 8 of Arbitration and Conciliation Act, 1996 in the Registry. The matter was adjourned to 9th December, 2014 when defendant No.1’s three applications were listed. The details of the same are given as under : (a) I.A. No.25154/2014 (under Section 8 of Arbitration & Conciliation Act, 1996) (b) I.A. No.25155/2014 (under Order 9 Rule 9 read with Section 151 CPC) (c) I.A. No.25156/2014 (under Section 5 of Limitation Act read with Section 151 CPC) 15. Meanwhile defendants have filed an application bearing I.A. No.25154/2014 under Section 8 of the Arbitration and Conciliation Act, 1996 stating that the agreement executed between the parties contains an arbitration clause which has been concealed by the plaintiff, accordingly it is prayed that the matter be referred for arbitration. Another application bearing I.A. No.25155/2014 has also been filed by the defendants under Order 9 Rule 9 read with Section 151 CPC for restoration of application being I.A.No.18284/2014 which was dismissed vide order dated 30th September, 2014. Application bearing I.A. No.25156/2014 is filed seeking condonation of delay in filing I.A. No.25155/2014.

16. Under these circumstances, it becomes necessary for the plaintiff to file the replies to these applications before passing the final order. Let the replies be filed within four weeks, rejoinder be filed within four weeks thereafter. List these pending applications along with main suit for consideration on 23rd March, 2015. (MANMOHAN SINGH) JUDGE DECEMBER19 2014