Kusum v. North Delhi Municipal Corporation

2 At the outset, it is phihted: outThat a bunch ofsifnilarly placed contractors F^d^|rlcT'=Lprtaih'"shitk''H#iic|L'E^ in their favour against whicFA^i^gular EM!|ippe[5];^flad been filed. That Regular First Appeal had been disposed ofby a Single Bench ofthis Court on 01.12.2016 (RFA No.786/2016); it was based on the consent order dated 17.11.2016 arrived inter-se the parties o J This Court notes that these writ petitions arise out of the Corporation. All the petitioners are duly registered contractors registered withthe respondent Corporation andhave been carrying out various works of the respondent. The petitioners having completed the said works to the satisfaction of the respondent for which bills had been prepared and certified but complete payment not having been received by the petitioners had accordingly been constrained to file these petitions. Contehtion of the pefitioners being that they are claiming only,those bills which had been duly.vpertified for payment and for which^hbWounthad beeirtp^l^' '"Ah % C ' ' • VV-.v;' y %

4 The stand ofthe resporident was that there is a spe|ific clause in the agreement which is binding;'uj^h4he parties and which was to the effect that the pa^eht'b|--t^^ bd subject to the availability of funds,'in:partrcular'M aGcbuht from time to time and the payments shall be made.strietly'bn queue basis i.e. first the past liabilities will be cleared and after the release of payments for past bills only then the case of the petitioners would be considered; interestwould also not be payable. -V'

5 The relevant extract of Clause 7 of the 'General Conditions of Contract for Municipal Corporation of Delhi Works' highlighted by the respondent Corporation is reproduced herein as under:- "The payment ofpassed bills will besubject to cn'ailability offunds inparticular headofaccountfrom time to time in MCD.- Payment of bills shall be strictly on Queue basis i.e. first the past liabilities will be cleared andafter thatthe release ofpaymentfor passed bills be inorderoj the demand received at HQunder particularheadofaccounts. No interest shall be payable to the:contfactor mpase ofdelay in payment on account of non-availability offunds in the.particuiafhepd ofaccountofMCD "

6 This beihghhe stand ofthe respondent 'Ciorpd'b^^ the petition ''if'' hadprogressed, and the up ffefi&l hearing.

7 However, at this sta.ge]! asjhpfed'supra, attention|bf this Court •? / § has been 'irawn to the ju|gm|nt-passed by the Single|Bench ofthis Court in RF^ N[6].;^,78'6fe'5T6';'!^ arisen out of decrees which had enuredTn'fav<hjn0f,sucEl who had preferred to file civil suits instead of Fifing'writ petitions.

8 In the course of these proceedings on 07.09.2016, the additional submission of the respondent was noted which was that the payments being asked for bythe petitioner are under 'non-planned head' and the petitionerwill have to stand in queue along with others; submission of planned head' and the money under the 'non-planned head' is being mis-used i.e. for purpose other than those purposes for which it is required to be used. The respondent had been directed to place on record an affidavit stating the amounts expended in the 'non-planned head'. This affidavit is on record and the details ofmoney sought to be expended in the 'non-planned head' have been given.

9 Court is of view.thdfflieibrd^s ^asseddn RFA No. 786/2016 this Court is ofthe view that these petitions can'alsq^ be disposed off on the saipe terms and conditions as there is no disputelo the fact that the case pfthese petitioners is similar to those who wer^parties in the H I RFA. / rt/A. / -f; pi ^ v.-v

10 The termsvdfrtlle cohsdnf" ofider'ilias and reproduced in RFATfe;.T8b/20F[6] redtFas ' A' •,-v

(i) The appellants shallfile fresh compilations, complete in all respects in respect ofthe respondents and the other contractors, irrespective of whether they have filed any appeals/suits ofrecovery or not, so that there is a clarity about theirpriority in the wait list.

(ii) The appellants undertake to strictly adhere to the timeline mentioned in the compilation,for releasingpayments to the respondents.

(iv) The appellants shall ensure thai the budgetfor release of amounts under the head of Non-Plan Expenditure is increased on a regular basis so that the release ofpaymentscan be expeditedto the respondents and other contractors in the wait list, even prior to the dates ofpriority mentioned against their names.

(v) The appellants shall upload the compilation on their -websitesfor ease of access and update it regularly at the end of each monthfor the respondents and others to know.what X" their status is in the wait list.

(vi) Having regard to thefact that the appellants expect the respondents to stay their hands and notpursue their legal remediesfor execution of the impugnedjudgments and decreesfor a period mentioned'hereinaftepjt is agreed that interest shall be payable to the respondents on the:principal amount after thfyxphy ofthree years and ninety days reckonedfrom thejdateThe'concerned hadpass'edihefills.ofthe respondentsfor payment. In other ^fbrds, a cushion-of 90-days'istae.ingpro-vided toTheHead Quarters of;; '< fff: ' ''i both the appellantsffor completirig.fheladminiftr'ative work ofreceiving anddiarising the bills receivedfromdifferent Tjivisidnjsjindrprep'dfing a combined listfor/payment and itis agreedthatfor thesaidperiod, no interest shallbe payabletotherespondents.

(vii) It is further agreed that thf^jxpllants m ill not be liable to p^ interest on the principal amounts payable,. toflheffespqnaeriT^undei^^^^ impugried judgments and decrees, for a'-period, •of three years- fdekdned fr&m'4hEdddte of expiry of 90 days mentioned above. •;'••• •, - % "' 'f

(viii) However, immediately on' expiry ofghree f eaTts-as noted above, if the amounts remain outstandingfor any reason whatsoever, the appellants shallpay interest @ 9% per annum on the principal amount to the respondents, for the remaining period, till realization.