[CASE NUMBER] IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No.86 of 2001
1. [ENTITY], represented by the Deputy Commissioner, Singhbhum East, Jamshedpur
2. The [ENTITY]
3. The [ENTITY].
4. The [ENTITY].
5. The [ENTITY]
6. The [ENTITY]. Appellants Versus [ENTITY] son of Late N.K. Singh by faith Hindu, by occupation business, resident of Road No.8, Quarter no.109/2/2, Adityapur, Jamshedpur. Respondent
For the Appellants : Mr. [ENTITY], A.C. to [SECTION] For the Respondents : None PRESENT HON'BLE MR. JUSTICE [ENTITY] By the Court :- 1. Heard the learned counsel for the appellants.
2. This appeal has been preferred by the defendants-appellants and is directed against the judgment and decree dated 24.01.2001 passed by the Subordinate Judge-I, Jamshedpur in [CASE NUMBER] by which the learned Subordinate Judge-I has decreed the suit on contest but without costs and directed the defendant to pay a sum of Rs.10,51,948/- to the plaintiff jointly with pendentelite and future interest at the rate of 6% per annum till realization.
3. The case of the plaintiff in short is that the plaintiff, who is a contractor, pursuant to a notice inviting tender for named Improved of Riding Quality Works submitted his tender and the same was accepted by the defendants. Such acceptance was communicated to the plaintiff by the [CASE NUMBER] defendant no.4. The letter of acceptance was issued to the plaintiff which happens to be the work order, issued by the department of the defendants under the signature of defendant no.4 acting for and on behalf of the then State of Bihar. The agreement was executed by and between the parties, being the agreement no.F2-36 of 1988-89 dated 20.03.1999. Pursuant to the agreement, the plaintiff deposited security/additional security to the tune of Rs.40,000/-. After commencement of the work, it was detected by the defendants that some extra work were to be done by the plaintiff which were not covered by the said agreement. The plaintiff completed the work including the extra work under the orders passed in the site order book to the satisfaction of the department of the defendants. The plaintiff completed the work by 7th day of May, 1999. The plaintiff claimed a sum of Rs.10,99,821/- as per the details mentioned below.
(i) The value of agreement work - Rs.13,09,769.00/-
(ii) The value of extra item of works - Rs.6,31,000/-
(iii) Total value of work - Rs.19,40,769.00/- (iv) Deduction made for royalty and cost of materials - Rs.3,80,948.00/- (v) Actual amount payable to the plaintiff - Rs.15,59,821.00/- (vi) Amount paid to the plaintiff - Rs.5,00,000/- (vii) Amount due payable to plaintiff - Rs.10,59,821.00/-
(viii) Security money to be realized -Rs.40,000.00/-
Total - Rs.10,99,821.00/-
As in spite of repeated demands of the plaintiff the defendants did not pay the dues of the plaintiff, the plaintiff served notice under [SECTION] of the [ACT] and thereafter filed the suit. The defendants entered appearance and in their joint written statement they pleaded that no agreement for the extra work was there nor there was any written direction from the Executive Engineer to carry out the extra work. It was the further case of the defendants that the work done by the contractor was not satisfactory and the allegations of repairing works is absolutely false. The defendants also pleaded that the plaintiff was never ordered to do the extra work nor there was any order beyond the item of the agreement. It was also the case of the defendants that the Junior [CASE NUMBER] Engineer was forced to accept the extra work, therefore, the charges of extra work is not sustainable. The defendants also took the plea that the work done by the plaintiff was not according to the specification of the agreement for which the Executive Engineer of the National Highway wrote a letter to the plaintiff-contractor and the road was also inspected by the Communication Minister of India and it was detected that the work done by the contractor was not according to specification and in consequence of which the contractor was directed to complete the work according to the specification but it was never done by the plaintiff- contractor. The defendants admitted that the value of the agreement was Rs.13,09,769/- but denied the charges amounting to Rs.6,37,000/-.
4. Basing on the rival pleadings of the parties the following four issues were framed by the learned court below :-
(i) Whether the suit as framed is maintainable? (ii) Whether the plaintiff has cause of action for the Suit? (iii) Whether the plaintiff is entitled to decree for Rs.10,99,821.00/-? (iv) To what relief or reliefs, if any, the plaintiff is entitled?
5. In support of his case, the plaintiff altogether examined two witnesses including himself as P.W.1 while one witness namely [ENTITY] was examined on behalf of defendant. Besides the oral testimony, the plaintiff proved the following documents :-
(i) The letter no.185 dated 08.02.1999 issued by the Executive Engineer National Highway, Division Jamshedpur address to the plaintiff intimating the acceptance of the tender which has been marked as Ext.1.
(ii) The agreement entered into in respect of the work which has been marked as Ext.2.
(iii) The site work book dated 18.03.1999 which has been marked as Ext.3 and the site work book dated 03.05.1999 which has been marked as Ext.3/A.
(iv) The office copy of the notice under [SECTION] of the [ACT] which has been marked as Ext.4 [CASE NUMBER]
(v) The Postal receipts of the registered letters which have been marked as Ext. 5 to 5/E.
(vi) The copy of the demand notices sent by the plaintiff to the defendant no.4 which has been marked as Ext.6/A.
(vii) The reply letter bearing no.900 dated 07.12.1999 of the defendant no.4 which has been marked as Ext.7.
6. Learned court below after taking into consideration evidences both, oral and documentary adduced by the rival parties decreed the suit as already indicated above.
7. Learned counsel for the appellants submitted that the learned court below failed to appreciate the evidence in the record in its proper prospective and the impugned judgment is against the weight of evidence on the record. It is pertinent to mention that though in ground no.7 of the appeal memo, it has been mentioned by the appellant that the learned court below wrongly and illegally held that the plaintiff was entitled for a decree of Rs.10,99,821/- but the perusal of the record reveals that the same is not a fact and in fact, the decree was passed for only Rs.10,51,948/- and not for Rs.10,99,821/-. It was further submitted that the learned court below erred in finding that the plaintiff had done the extra work of value of Rs.6,31,000/-. It was also submitted by the learned counsel for the appellants that since there was clause for arbitration in clause-23 of the agreement, the suit of the plaintiff was illegal and is not maintainable. Hence, it is submitted that the impugned judgment and decree be set aside and the suit of the plaintiff be dismissed.
8. No one turned up on behalf of the respondent in-spite of repeated calls at the time of hearing of the appeal.
9. In view of the submission made at the bar, the only point of determination in this appeal is whether the learned court below was right in decreeing the suit on the basis of the testimony and evidence available in record.
10. In his testimony, the P.W.1-plaintiff has corroborated the averments made in the plaint. The plaintiff also proved the aforesaid documents which were marked as exhibits as already indicated above. He has also [CASE NUMBER] stated about the acceptance of the tender, issue of work order and the agreement entered into between the parties. He further stated about the nature of extra work made in the site order book and that the said site order book bears the signature of Shri [ENTITY], S.D.O., P.W.D., National Highway as well as the Executive Engineer-[ENTITY]. The P.W.1 also stated that the page nos.3 to 6 of the site order book is in the handwriting of Junior Engineer-[ENTITY] and the signature of the [ENTITY], Junior Engineer-[ENTITY] and Executive Engineer-[ENTITY] was also appearing in the same. P.W.1 further stated that the amount of extra work done was for Rs.6,31,000/-. In his cross-examination he has stated that he had no knowledge whether the Minister inspected the work done by him. He was issued certificates for the work done by him.
11. P.W.2-[ENTITY] is an employee of the plaintiff. He has proved the carbon copy of the notice issued under [SECTION] of the [ACT]. In his cross-examination, he has stated that the said notice was signed by Mr. [ENTITY] Advocate.
12. From the side of the defendants D.W.1-[ENTITY] has stated that the contract work of National Highway-6 was given to the plaintiff. On being proved by him, the letter dated 15.10.1999 of the Assistant Engineer National Highway, Sub-Division-Ghatshila to the Executive Engineer has been marked as Ext.A with objection. He also proved the letter dated 04.12.1999 written by the Junior Engineer, National Highway, Bahragora to the defendant no.4 which has been marked as Ext.A/1 with objection. The letter bearing no.446 dated 03.07.1999 of the defendant no.4 to the plaintiff has been marked as Ext.A/2 with objection. The measurement book proved by him was marked as Ext.B with objection. In his cross-examination, he has stated that as per agreement, the bill amount was Rs.13,09,769/- He further stated that the measurement book was in custody of the defendants. In para no.9, he has stated that the area where the work was going on was not under the charge of the D.W.1. In para no.12, he has stated that the written statement borne the signature of the Executive Engineer. He does [CASE NUMBER] not have any knowledge about Ext.A to Ext.A/2.
13. So far as the submission of the learned counsel for the appellants regarding clause-23 of the agreement being an arbitration clause is concerned, learned counsel for the appellants fairly submits that in the written statement, the defendants have not taken the plea of existence of any arbitration clause in the agreement. The Hon'ble Supreme Court of India in the case of [PRECEDENT] has laid down the circumstances where the arbitration agreement contained in a contract cannot be invoked to seek reference of any dispute to arbitration by observing as under in paragraph - 29:-
"29. It is thus clear that the arbitration agreement contained in a contract cannot be invoked to seek reference of any dispute to arbitration, in the following circumstances, when the contract is discharged on account of performance, or accord and satisfaction, or mutual agreement, and the same is reduced to writing (and signed by both the parties or by the party seeking arbitration):
(a) where the obligations under a contract are fully performed and discharge of the contract by performance is acknowledged by a full and final discharge voucher/receipt, nothing survives in regard to such discharged contract;
(b) where the parties to the contract, by mutual agreement, accept performance of altered, modified and substituted obligations and confirm in writing the discharge of contract by performance of the altered, modified or substituted obligations;
(c) where the parties to a contract, by mutual agreement, absolve each other from performance of their respective obligations (either on account of frustration or otherwise) and consequently cancel the agreement and confirm that there are no outstanding claims or disputes."
14. So, it is needless to mention that in the instant case the issues whether there exists an arbitration agreement or not and whether the suit is not maintainable even though neither of the parties took any steps for referring the matter to arbitration are issues of fact. Hence in the absence of the defendants having not pleaded existence of any arbitration clause in the agreement nor the defendants having raised the said issue any time [CASE NUMBER] during the pendency of the suit and also as the defendants-appellants have not taken any step to incorporate the said plea in their pleadings by way of amendment, hence it is not open for the defendants-appellants to raise the said plea for the first time by oral submission at the time of hearing of the appeal. Since no pleading was there in the written statement of the defendants regarding existence of any arbitration clause which renders the suit not maintainable, so obviously no issue was framed regarding the same. In the absence of any pleading and consequently in the absence of any issue thereof, the same is not open to be agitated for the first time before this Court at the fag end, at the time of final hearing of the appeal by way of oral submission, behind the back of the plaintiff-respondent, as already mentioned above, the plaintiff- respondent has not taken part in the hearing of this appeal.
15. So far as the evidence in the record is concerned, it is not disputed by the defendants that the extra work was done by the plaintiff to the extent, the value of which was Rs.6,31,000/-. Though the defendants took the plea that the extra work was done by the plaintiff, were not under the order of Executive Engineer but the testimony of the P.W.1 shows the signature of Executive Engineer besides that of the Junior Engineer and the S.D.O. was also appearing in the site work book. The said portion of the testimony of the plaintiff has not been challenged in any manner in his cross examination, hence the same is to be accepted, it being a settled principle of law that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility.
The Hon'ble Supreme Court in the case of [PRECEDENT] in para-31 in this respect held as under :-
"31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the [CASE NUMBER] correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in [SECTION] of the [ACT], which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by [SECTION] of the [ACT], which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; and [PRECEDENT] given by me)
16. Though as stated by the D.W.1, the Executive Engineer, S.D.O. and the Junior Engineer were still in service but without any plausible reason they were withheld from the witness box by the defendants and instead the defendants chose D.W.1 to be the person to be examined on their behalf in the suit. But in paragraph no. 9 of his testimony, D.W.1 has stated that he was not in-charge of the portion for which the work in connection with the matter involved in the suit was done. Further as the D.W.1 has rightly admitted that the written statement should have been signed by the Executive Engineer but it was found that the same was not signed by the Executive Engineer. The Measurement Book has been filed by the defendants themselves. It appears that the [CASE NUMBER] entries of extra work to be done by the plaintiff also finds place in the measurement book. Since the defendant took the plea that the plaintiff by use of force and coercion upon the Junior Engineer has got the site order book signed by him yet as both the parties were adducing evidence so the burden was upon the defendants to prove the same. The evidence in the record shows that the defendants failed to establish that the Junior Engineer was forced or coerced to sign the site order book as no evidence in this respect has been put forth by the defendants in this respect on the other hand in the absence of any cross-examination whatsoever of the P.W.1, regarding his testimony about the site measurement books were duly signed by inter alia the Junior Engineer, the same is to be accepted. The site order book and measurement book shows the extra work of worth Rs.6,31,000/- was done by the plaintiff. The said order book completely tallies with the measurement book which was produced by the defendants themselves. Further the rate on which the plaintiff has claimed the amount has not been disputed by the defendants. Thus, this Court is of the considered view that the plaintiff has been able to prove his entitlement for payment of a sum of Rs.6,31,000/- towards extra work and Rs.3,80,948/- towards outstanding dues for work done according to the agreement which the defendants themselves admit. Besides this the plaintiff is also entitled for realization of the security money of Rs.40,000/-. Thus, the plaintiff is in total entitled for payment of Rs.10,51,948/- with pendentelite and future interest thereon at the rate of 6% per annum till realization.
17. In view of the discussion made above, the learned court below having rightly decreed the suit. The impugned judgment and decree dated 24.01.2001 passed by the Subordinate Judge-I, Jamshedpur is confirmed and this appeal being without any merit is dismissed but in the circumstances without any costs.
18. Let the Lower Court Record be sent back to the court below along with a copy of the Judgment forthwith.
([ENTITY], J.) High Court of Jharkhand, Ranchi Dated 11th April, 2018 [ENTITY] A.F.R.