Chief Election Officer and Others vs Gangashri Computers

G. Minhajuddin, J.—This appeal has been filed u/s 96 of the Code of Civil procedure, 1908 against the judgment and decree dated 08.04.2009 passed by learned 8th Additional District Judge (FTC), Bilaspur, in Civil Suit No. 02-B/08, whereby suit of the respondent/plaintiff for recovery alongwith interest and cost has been decreed. The facts, in brief, of the case are that the respondent/plaintiff is running a computer institute at Link Road, Tarbahar, Bilaspur. In response to the Notice inviting Tender dated 06.09.2002 issued by appellant/defendant No. 1 for printing of computerized electoral rolls, the respondent/plaintiff had submitted its tender, which was accepted after due negotiation on 27.09.2002 and work order dated 27.09.2002 was issued in respondent/plaintiff''s favour by appellant/defendant No. 1. As per terms and conditions of the '' tender, the tender work was to be completed by 05.04.2003, failing which penalty @ Rs. 1000/- per day for each constituency was to be levied and deducted either from the security deposit or from the amount payable to the tenderer. However, subsequently, the said stipulated date was extended up to 05.05.2003. The respondent/plaintiff was to do the computerization and printing of electoral rolls of Marvahi, Kota, Losmi, Mungeli, Orhagaon, Takhatpur, Bilaspur, Masturi, Seepat constituencies. After completing the tender work, the respondent/plaintiff submitted his bill amounting to Rs. 20,92,048/- on 05.02.2004 in the office of appellant/defendant No. 2 for payment, which was reduced and modified by the office of appellant/defendant No. 2 to the extent of Rs. 20,04,456/- and the same was accepted by the respondent/plaintiff. The said bill was forwarded to the office of appellant/defendant No. 1 for payment. However, appellant/defendant No. 1 made payment of Rs. 9 lacs against the said bill and the remaining amount of Rs. 11,04,456/- remained unpaid. The appellant/defendant No. 1 vide its letter dated 27-28/09/2005 informed the respondent/plaintiff that as he did not complete the tender work by the stipulated date, therefore, as per terms of the tender, a sum of Rs. 10,03,000/- has been deducted as penalty and the remaining amount of Rs. 97,357/- shall be paid soon.

That the respondent/plaintiff objected to the above deduction and contended that the appellants/defendants have wrongly calculated the number of days of delay. The respondent/plaintiff has contended that he had submitted the printed computerized electoral rolls of all the constituencies within the stipulated time period, except the printed computerized electoral rolls for Masturi constituency, which was submitted on 11.05.2003 and therefore, there is delay of only six days. Since there were some printing mistakes in the electoral rolls submitted by the respondent/plaintiff, the same was not accepted and as such, the respondent/plaintiff after reprinting of those electoral rolls again submitted it in the office of appellant/defendant No. 2. The calculation of number of days of delay has wrongly been done by the appellants. The respondent/plaintiff alongwith its plaint has submitted Calculation Table No. 1, 2, & 3. According to Calculation Table No. 2, there is delay of only six days in submitting the electoral rolls.

The respondent/plaintiff had sent a notice u/s 80 of CPC to the appellants/defendants through his Advocate Shri R.D. Rai on 21.03.2006 for payment of the remaining amount after deducting only Rs. 6000/- as penalty for delay of six days, but the said notice was not replied to. The appellants/defendants No. 2 & 3 on 27.06.2006 made a false reply through their Govt. Advocate and did not pay the amount of the bill. Thus, with the aforesaid averments, the respondent/plaintiff filed a civil suit for recovery of Rs. 14,82,916/- alongwith interest and cost.

Subsequently, through amendment, the respondent/plaintiff has also averred in his plaint that the respondent/plaintiff had sought information regarding proceedings initiated by the department for payment of his bill from appellant/defendant No. 1 by way of making an application under Right to Information Act and consequently, the respondent/plaintiff was directed to remain present on 21.07.2006 in the office of appellant/defendant No. 1 for perusing the documents available in the office. Accordingly, the respondent/plaintiff after perusing the documents in the office of appellant/defendant No. 1 came to know that an opinion was sought from the Law Department on 29.12.2005 with respect to calculation of the number of days of delay for payment of bill amount of the plaintiff and consequently, on 22.02.2006 the Principal Secretary (Law) had opined that the delay would be original electoral list, and not from the date of submission of corrected electoral list. Thus, the Principal Secretary (Law) had admitted that there was only six day''s delay on the part of the plaintiff in submitting the electoral list.

The appellants/defendants in their reply, denying the adverse allegations made by the respondent/plaintiff in his plaint, have averred that the respondent/plaintiff had not submitted the entire electoral list within the stipulated date, but instead of 100-100 revised copies, he had submitted 95-95 copies of the electoral list for each constituency, which were found to be defective and returned back to the respondent/plaintiff for submitting the same after correction. The respondent/plaintiff had not submitted the corrected electoral lists of the constituencies by the stipulated date i.e. 05.04.2003 and even after extension up to 05.05.2003, he had failed to submit the corrected electoral lists. Ultimately, the corrected electoral lists were submitted by the respondent/plaintiff after an inordinate delay of 1003 days from the extended date of 05.05.2003 and accordingly, deductions were from the amount to be paid to the respondent/plaintiff, as per terms of the tender, which stipulate that a sum of Rs. 1000/- per day for each constituency, as penalty, shall be deducted from the security deposit or the amount payable to the tenderer for delay in submitting the electoral rolls. Thus, the deduction of Rs. 10,03,000/- from the amount payable to the respondent/plaintiff, can not be said to be unreasonable or illegal. Although opinion was sought from the Law Department with regard to delay committed by the respondent/plaintiff, but the opinion given by the Law Department is not binding on the appellant/defendant No. 1 because there was total delay of 1003 days in submitting the corrected electoral list in the office of appellant/defendant No. 2 and therefore, as per terms and conditions of the NIT, an amount of Rs. 10,03,000/- towards penalty @ Rs. 1000/- per day for each constituency has rightly been deducted from the amount payable to the respondent/plaintiff.

However, the learned trial Court after hearing counsel for the respective parties, considering the material available on record, by the impugned judgment, decreed the suit in favour of the respondent/plaintiff.

Heard Learned Counsel for the parties, perused the LCR as also the impugned judgment and decree.

The points for determination in this appeal are as follows:

(i) Whether appellant/defendant No. 1 was justified in computing delay in submitting the printed computerized electoral rolls from the date on which the corrected electoral rolls were submitted?

(ii) Whether appellant/defendant No. 1 was justified in imposing penalty @ Rs. 1000/- per day per constituency and deducting an amount of Rs. 10,03,000/- from the amount payable to the respondent/plaintiff?

The respondent/plaintiff (PW-1), in his cross-examination in para-19, has admitted that before filling up the tender form, he had read and understood the terms and conditions of the tender. In addition to the terms in the tender, he had also proposed certain terms, which were accepted after due negotiation, and thereafter, he and filled up the tender form. He has admitted that one of the conditions in the tender was that the tenderer had to submit 100-100 printed copies of the revised electoral rolls by 05.04.2003, failing which penalty @ Rs. 1000/- per day per constituency was to be levied and deducted, and the said stipulated date was subsequently extended to 05.05.2003 in para-20, he has categorically admitted that the corrected electoral lists were submitted with a delay of 1003 days from 05.05.2003 in para-21 of his cross-examination, the respondent/plaintiff has stated that for reprinting of electoral rolls there was no time limit and therefore, there was no separate contract for that. He has stated in his examination-in chief that he had obtained information under Right to Information Act that on opinion being sought from the Principal Secretary (Law) by the appellants/defendants, the Principal Secretary (Law) had opined on 22.02.2006 that there is delay of only six days on the part of the respondent/plaintiff in submitting the electoral rolls, as delay is to be counted from the date when the original electoral list was submitted and not from the date when the corrected list was submitted. In para-22, he has stated that the opinion of the Principal Secretary (Law) is binding on the appellant/defendant No. 1.

It is not is dispute that pursuant to the NIT dated 06.09.2002 issued by appellant/defendant No. 1 for printing of computerized electoral rolls, the respondent/plaintiff had submitted his tender, which was accepted after due negotiation on 27.09.2002 and work order dated 27.09.2002 was issued in his favour. The respondent/plaintiff was to do the computerization and printing of electoral rolls of Marvahi, Kota, Losmi, Mungeli, Jarhagaon, Takhatpur, Bilaspur, Bilha, Masturi, Seepat constituencies. As per terms and conditions of the tender, the tender work was to be completed by 05.04.2003, failing which penalty @ Rs. 1000/- per day for each constituency was to be levied and deducted either from the security deposit or from the amount payable to the tenderer. It is also not in dispute that subsequently, the stipulated date of completion was extended up to 05.05.2003.

The learned trial Court has decreed the suit of the respondent/plaintiff mainly on the grounds that on opinion being sought by the appellants/defendants, the Principal Secretary (Law) had opined that there has been delay of only six day on the part of the respondent/plaintiff and further, that there was no time limit for submitting the revised corrected electoral rolls by the respondent/plaintiff. However, the above finding of the learned trial Court does not appeal to reason as during the election period, the State and its instrumentalities itself become subordinate to the Chief Election Officer and therefore, the opinion expressed by the Principal Secretary (Law) can, by no stretch of imagination, be said to be binding on the Chief Election officer. Further, the tender work of preparation of electoral rolls is a sensitive matter and in such a work, time is the essence of the contract. The respondent/plaintiff was earlier directed to complete the tender work by 05.04.2003, however, on his failure, the time was extended up to 05.05.2003 and even by the extended date, the respondent/plaintiff could not complete the tender work. The respondent/plaintiff has himself admitted in his plaint as well as in his evidence that he could not complete the tender work within the stipulated time.

The respondent/plaintiff alongwith his plaint has annexed three calculation tables. It is not is dispute that initially the stipulated date for submission of electoral rolls was 05.04.2003, which as per statement of the proprietor of respondent/plaintiff''s firm Arun Jaiswal (PW-1) was extended on 20.03.2003 till 05.05.2003. As per the Calculation Tables No. 1, 2, & 3 annexed with the plaint, the corrected electoral rolls of Marvahi, Kota, Lormi Mungeli, Jarhagaon, Takhatpur, Bilaspur, Bilha, Masturi, Seepat constituencies were submitted on 12.07.2003, 28.07.2003, 04.08.2003, 21.08.2003, 13.08.2003, 04.09.2003, 19.08.2003, 11.08.2003, 30.08.2003 and 22.08.2003 respectively. As such, the delay in re-submission of the electoral rolls after correction comes to 1003 days, if computed from the extended date i.e. 05.05.2003, and the same has been admitted by Arun Jaiswal (PW-1), who is proprietor of the respondent/plaintiff''s firm, in his cross-examination. As per the Calculation Tables No. 1 & 2, initial submission of the electoral rolls, which were found to be defective, of the constituencies mentioned above, was on 02.05.2003, 5.5.2003, 22.4.2003, 28.4.2003, 4.5.2003, 5.5.2003, 5.5.2003, 4.5.2003, 11.05.2003 and 05.05.2003 respectively. Although Arun Jaiswal (PW-1) has denied that initially he had not submitted 100-100 copies of the electoral rolls, but had not submitted only 95-95 copies. However, this witness has admitted that he has not got any document filed in respect of the fact that how many copies of the electoral rolls initially submitted by him were defective, but has admitted that after correction, the electoral rolls of the constituencies were re-submitted by him on the dates shown in Column No. 5 of Calculation Table No. 1 and if delay is computed from the dates of resubmission of the corrected electoral rolls, then it comes to 1003 days.

Any matter relating to election and that too, preparation of electoral rolls, is a sensitive and delicate matter. The defective electoral rolls are of no use for election purposes. It does not appeal to reason that why the delay should be computed from the dates of initial submission of the electoral rolls of different constituencies, which were found to be defective and were returned back to the respondent/plaintiff to be re-submitted after correction. In this view of the matter, it is only the dates on which the corrected electoral rolls of the constituencies were re-submitted, from which delay will have to be computed. As such, from the Calculation Tables No. 1, 2 & 3 annexed with plaint as well as admission of Arun Jaiswal (PW-1) in his cross-examination, that it stands proved that there had been a total delay of 1003 days in resubmission of the corrected electoral rolls of 10 constituencies by the respondent/plaintiff in the office of appellant/defendant No. 2. Thus, in view of this, as per terms and conditions of the NIT, we are of the opinion that the appellant/defendant No. 1 was wholly justified in invoking the penalty clause and imposing penalty @ Rs. 1000/- per day per constituency for the delay of 1003 days and accordingly, deducting a sum of Rs. 10,03,000/- from the amount payable to the respondent/plaintiff.

In the result, the appeal is allowed in part. The impugned judgment and decree dated 08.04.2009 passed by learned 8th Additional District Judge (FTC), Bilaspur, in Civil Suit No. 02-B/-08 is modified to the extent that the respondent/plaintiff is entitled to receive a sun of Rs. 97,357/-, instead of Rs. 10,98,456/- from the appellants/defendants alongwith interest @ 6% per annum from the date of submission of the bill i.e. 05.02.2004 till its realization. However, in the facts and circumstances of the case, there shall be no order as to costs. Additional Registrar (Judicial) is directed to draw up a decree accordingly.