1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 91 OF 2005 WITH CROSS OBJECTION NO. 22 OF 2005 AND FIRST APPEAL NO. 90 OF 2005 1. The Governor of Goa, Secretariat, Panaji-Goa. 2. The Government of Goa by its Chief Secretary, Secretariat, Panaji-Goa. 3. The Chief Engineer(Goa) Irrigation Department, Panaji-Goa. 4. The Executive Engineer, Works Division X, Irrigation Department, Pajimola, Sanguem-Goa. ... Appellants versus Shri T. P. Abdulla, P.W.D. Contractor, major, r/o National Hotel, Quepem-Goa. ... Respondent Shri G. Shirodkar, Government Advocate for the Appellants. Shri C. Mascarenhas, Advocate for the Respondent. 2 CORAM : F. M. REIS, J. DATE : 27TH JANUARY, 2011. ORAL JUDGMENT The above appeals challenge the Judgment and Decree passed by the learned Adhoc Additional District Judge, South Goa at Margao in Civil Suit No.120 of 2004(New) dated 7-10-2004 whereby the suit filed by the respondents was partly decreed. 2. First Appeal No. 90 of 2005 challenges the portion of the said Judgment whereby the counter-claim filed by the appellants came to be rejected. 3. The suit came to be filed by the respondents on the ground that by an agreement dated 2-11-1999 the respondent was assigned the work of construction of balance work of the branch canal taking off at Ch:18.45 kms. of SIP main canal at Ch:6.93 kms. to 7.65 kms. in Sarzora Village of Salcete Taluka for the tendered price of Rs.4,97,188.90 and the work was to be completed within 150 days from 17-11-1999. According to the respondents, he started the work as contemplated in the 3 said agreement and he also started facing difficulties and as such, every time he was forced to call upon the Junior Engineer of the appellants for minor details. After the completion of the work, the respondent requested the Junior Engineer and the Sub-Divisional Officer to record the ground levels but the same was not done and also the drawings were not provided to him. According to the respondent, he completed a substantial portion of the work but was not paid for the work carried out by him and the measurements recorded for R. A. Bill is only about 20% of the work done. Accordingly, the respondent claimed that in view of the closure by the Konkan Railway Authorities to use the access to take the materials at the site of the work and inspite of repeated requests, no action was taken in this regard, a letter was addressed to the authorities bringing to their notice the said situation. For other reasons, as stated in the plaint and for the default committed by the appellants the suit came to be filed by the respondent claiming, inter alia, for a declaration that the determination of the agreement dated 2-11-1999 is illegal and void and further restraining the appellants from assigning the balance work under the said agreement to any other contractor and further claimed an amount of Rs.4,60,000/- with interest at the rate of 18% per annum from the date of filing of the suit till the date of payment on different counts as 4 mentioned at para 17 of the plaint. The appellants resisted the suit and disputed the claims put forward by the respondent and stated, inter alia, that no amounts were due to the respondent. It is further their contention that they were entitled to terminate the agreement in view of the defaults committed by the respondent. Along with the written statement, the appellants also filed a counter-claim that they are entitled to recover an amount of Rs.2,04,500/- on different counts as stipulated at para 35 of the written statement. A written statement to the said counter-claim was also filed by the respondent disputing the claim put forward by the appellants. 4. The learned Judge after framing the issues and recording the evidence, partly decreed the suit and the appellants were directed to pay the respondent the balance amount as per the value of the rate agreed taking into account the value of the work done by the respondent as per the Commissioner's report dated 29-12-2000 i.e. taking into account the item of embankment work as 1,363.14 cubic meters as certified by the Commissioner. The sum of Rs.65,000/- which were already paid to the respondent was to be deducted. The appellants were also directed to 5 deduct a sum of Rs.14,000/- from the said balance amount. The balance amount was ordered to be paid along with interest. 5. Being aggrieved by the said Judgment, the appellants had preferred the present appeal. The respondent filed the aforesaid cross objections after being served in the said appeal and claimed the reliefs which were refused by the learned Judge. The appellants also preferred a separate appeal challenging the rejection of their counter-claim. 6. Shri G. Shirodkar, learned Government Advocate appearing for the appellants has assailed the impugned Judgment and has submitted that the learned Judge has disposed of the suit mainly relying upon the Commissioner's report though no opportunity was given to the appellants to cross-examine the said Commissioner. Shri Shirodkar, learned Government Advocate further submitted that there was no order passed by the learned Judge accepting the Commissioner's report, and thus considering that the said Commissioner was not cross-examined, the report cannot form part of the evidence. Learned Government Advocate further submitted that besides Rs.14,000/- as allowed by the learned Judge to be deducted, appellants had also claimed a further sum of 6 Rs.1,80,000/- which were claimed in the counter-claim which are not considered by the learned Judge whilst passing the impugned Judgment. Learned Government Advocate took me through the impugned Judgment and pointed out that the said Judgment has been passed only on the basis of the Commissioner's report and as such prayed that the respondent has failed to establish his case and the suit deserves to be dismissed and the counter-claim be allowed. 7. Shri C. Mascarenhas, learned Counsel for the respondent has submitted that the question of refusing the amount as decreed by the impugned Judgment does not arise at all. On the contrary, Shri Mascarenhas, learned Counsel pointed out that apart from the claim which has been adjudicated there were claims put forward by the respondent which has been pleaded at para 17(b) and paras 2(b) and (c) which have not been considered by the learned Judge whilst passing the impugned Judgment. Learned Counsel has submitted that the compensation which has been claimed by the respondent in para 17 is on different heads and the break up has been furnished therein and this aspect has not been considered at all in the impugned Judgment. Learned Counsel further submitted that no reasons have been given by the learned 7 Judge whilst passing the impugned Judgment as to why the said claim of the respondent was refused. The learned Counsel as such submitted that the matter deserves to be remanded for fresh adjudication of the dispute raised by the parties. 8. The learned Government Advocate in regard to the submission of the learned Counsel for the respondent submitted that in case the matter is remanded the appellants should be permitted to cross- examine the Commissioner. 9. Having heard the learned Counsel and on perusal of the record, I find that the impugned Judgment passed by the learned Judge is only upon considering the Commissioner's report. As a grievance is sought to be made by Shri G. Shirodkar, learned Government Advocate with regard to the fact that the Commissioner was not cross-examined and as such, the same had no eventual value, I find that in the interest of justice, the appellants can be given an opportunity to file a proper application before the learned trial Judge and after hearing the respondent an appropriate order be passed with that regard. 8 10. Shri C. Mascarenhas, learned Counsel is justified to contend that the learned Judge has not at all applied her mind with regard to the claims put forward by the respondent as pleaded in para 17(b) and paras 2(b) and (c). There are no reasons given by the learned Judge in the impugned Judgment as to why the said claim has been refused. So also Shri G. Shirodkar, learned Government Advocate is justified to contend that the claim put forward by the appellants in their counter-claim has not been properly adjudicated by the learned Judge whilst passing the impugned Judgment. 11. Considering the overall facts on record and on the basis of the contentions of both the learned Counsel, I find that in the interest of justice the matter deserves to be remanded for deciding the suit afresh, after hearing both the parties. 12. In view of the above, I pass the following order:- O R D E R 1. Both the appeal and cross objections are partly allowed. 2. The impugned Judgment and Decree dated 7-4-2004 of the learned Adhoc Additional District Judge, South Goa at Margao is quashed and set aside. 9 3. Civil Suit No.120 of 2004 is restored to the file of the learned Additional District Judge. 4. The learned Judge is directed to decide the said suit and counter-claim afresh after hearing both the parties, in the light of the observations made herein above, in accordance with law as expeditiously as possible. All the contentions of the parties are left open. 5. The appeal and cross objection stands disposed of accordingly with no orders as to costs. 6. The parties are directed to appear before the learned Judge on 28-2-2011 at 10.00 a.m. F. M. REIS, J. RD