RFA 5/2003 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE C.R. SARMA This appeal is directed against the judgment and decree, dated 29.06.2002, passe d by the learned Civil Judge (Sr.Divn.) No.2, Guwahati, in Money Suit No.230/199 7. By the impugned judgment and order, the learned Civil Judge decreed the plain tiff’s suit, observing that the plaintiff would be entitled to realise Rs.2,45,7 1,798/- with interest, thereon, @ Rs.6% per annum from 14.09.1995 till realisati on of the said amount from the defendants jointly and severally. Being aggrieved by the said judgment and decree, the defendants have carried the appeal to this Court. 2. The appellant-defendant No.2, on 29.7.92 invited tender against the work for construction of 4(four) numbers of transhipment platform each 686 m trs. long BG-MG with covered shed and other ancillary works in connection with c onversion of Guwahati-Lumding Meter-gauge section into Broad gauge under the N.F . Railway. The plaintiff submitted his tender for the said work. Tenders were op ened on 25.8.92. Thereafter, vide letter dated 30.9.92 the defendant No.2, invit ed the plaintiff to attend his office, on 13.10.92, for negotiation. Accordingly , the plaintiff attended the office of the defendant No.2, on 13.10.92, and offe red his revised rates against each item of work and the defendant No.2 accepted the said rate vide telegram dated 23.11.92, followed by issuance of formal work order in favour of the plaintiff for the purpose of execution of the said work. By the said work order dated 2.12.92, the plaintiff’s offer was accepted by the defendants in respect of work under item No.4 relating to execution of civil wor k and the rate so accepted, was stated to be 300% above the schedule of rates of 1979 edition with corrections upto-date i.e. as on 25.8.92, which was the date of opening the tenders. According to the plaintiff, at the time of negotiation, held on 13.10.92, the defendant No.2 informed the tenderers, including the plain tiff, that they had prepared an estimate, on the basis of the schedule of the ra tes of 1979 as corrected upto-date and that the tenderers were also informed tha t the said corrected rate was 450% above the 1979 schedule of rates. At the time of offering the rates, particularly in respect of item No.4, the plaintiff quot ed his rate at 300% above the 1979 schedule of rates corrected upto 25.8.92. An agreement of contract was also executed on 30.12.1992 between the plaintiff and the defendants. The plaintiff executed the work as per specification and complet ed the work in time. Accordingly, the defendants issued completion certificate t o the plaintiff. During the continuance of work, payments in respect of some run ning bills were made to the plaintiff. According to the plaintiff, the 1979 Sche dule of rates corrected upto date was above 450% of the 1979 Schedule of rates a nd therefore, as the plaintiff had quoted 300% above the 1979 Schedule of rates corrected upto date, he was entitled to get payment of his bills at the rate of 300% above the 1979 Schedule of rates plus 450%, but payment, against item No.4, was made only at 300% above the 1979 schedule of rates and not on the basis of 1979 schedule of rates corrected upto 25.8.92. The plaintiff pleaded that he was entitled to get Rs.4,13,11,723/- but the defendants, after making payment of Rs .1,62,54,390/-, withheld the final payment of the bill towards the said work. As the defendants failed to make payment in respect of final bill, in spite of rep eated requests, at the agreed rate, the plaintiff, having no other alternative h ad approached, this Court by filing a writ petition, being Civil Rule No.2702/95 , seeking issuance of appropriate writ or direction to the defendants requiring them to make payment of the outstanding dues to the plaintiff, in respect of the work done by him, in pursuance of the work order dated 2.12.92. In the said Civ il Rule, the defendants submitted that the Railway Administration had offered a sum of Rs.4.00 lakhs and odd to the plaintiff. For the first time, as contended by the plaintiff, he came to know that the defendants estimated only Rs.4.00 lak hs and odd as the final payment for the bills in respect of the said works. This Court, by order, dated 26.7.95, passed in the said Civil Rule, directed the def endant No.2 to make payment of Rs.4.00 lakhs and odd along with the earnest mone y and the security deposit within a period of one month. However, it was provide d, in the said order, that the said direction would be without any prejudice to the interest of the plaintiff. With the above direction, the said Civil Rule hav ing been dismissed, the plaintiff preferred a writ appeal being Writ Appeal No. WA(T) 241/96. A Division Bench of this Court, by the judgment and order, dated 1 2.6.96, disposed of the writ appeal with the observation that the plaintiff shou ld pursue his remedy by filing a civil suit. The pleaded case of the plaintiff is that though the plaintiff is entitl ed to get Rs.2,50,57,333/-, the defendants paid an amount of Rs.2,09,796/-, ther eby leaving Rs.2,48,47,537/- as outstanding amount. The plaintiff also claimed r ecovery of Rs.2,66,028/- on the ground that the said amount was illegally deduct ed, by the defendants, from the bills of the plaintiff towards the Assam General Sale Tax. Moreover, as the defendants did not pay the amount in time, the plain tiff claimed interest @ 15% per annum from 14.9.95 till payment. Therefore, the plaintiff through his advocate, on 31.3.97, issued a statutory notice U/s 80 of the CPC to the defendants demanding payment of an amount of Rs.2,85,74,668/-. As in the said notice, dated 31.3.97, the amount was wrongly shown, the plaintiff issued another notice on 2.9.97 demanding payment of Rs.3,21,67,207/- including interest. After receipt of the notice also, as the defendants failed to pay the claimed amount, the plaintiff filed this suit for recovery of Rs.3,21,67,207/- f rom the defendants. 3. The defendants contested the suit by filing written statement. T he defendants, in their written statement, inter alia, contended that there was no cause of action, that the suit was barred by limitation, that the suit was no t maintainable and that the plaintiff was not entitled to get the relief claimed in the suit. The defendants, admitting that the work order was issued to the pl aintiff by the defendants, averred that the estimated value of the work was Rs.1 ,50,13,738/- and that the plaintiff agreed to execute the said work at the contr acted rate, which was 300% above the N.F. Railway schedule of rates, 1979 editio n, corrected upto date i.e. the date of opening the tender, which was 25.08.1992 and also in conformity with the relevant terms and conditions, contained in the said contract agreement. It was also contended that the plaintiff accepted the payments of the bills raised from time to time, at 300% above the contracted rat e without objection. The defendants, categorically stated that there was no corr ection or enhancement of the rate of N.F. Railway schedule of rates of 1979 till the date of opening of the relevant tender i.e. till 25.8.92 and that the plain tiff’s claim of Rs.4,13,11,725/- for the complete work was without any basis and nothing but imaginary. According to the defendants, they by their letter, dated 31.3.95, duly informed the plaintiff that the final bill for the said work was ready and thus requested him to sign the said final bill at the office at an ear ly date. They also pleaded that the balance amount payable to the plaintiff was Rs.2,09,796/- only and that an amount of Rs.2,66,028/- was the statutory deducti on towards AGST, which was fully known to the plaintiff. It is also stated, in t he written statement, that the plaintiff received the final bill by signing no c laim certificate and that the notice issued by the plaintiff U/s 80 of the CPC w as invalid and insufficient. The defendants prayed for dismissal of the plaintif f’s suit. 4. Upon the pleadings of the parties, the learned trial Judge frame d the following issues for decision :- 1. Whether the suit is maintainable in its present form? 2. Whether the plaintiff has the cause of action in the suit against the de fendants? 3. Whether notice U/s 80 CPC was served properly on the defendants by the p laintiff? 4. Whether the plaintiff is entitled to the amount of Rs.3,21,67,207/- as c laimed against the defendants? 5. Whether the defendants are liable to pay the above amount to the plainti ff under the terms and conditions of the relevant contract agreement? 6. Whether the plaintiff is entitled to the relief claimed? 7. To what relief or reliefs the parties are entitled? 5. In support of his claim, the plaintiff examined himself as P.W.1 and exhibited certain documents. The defendants also examined one of its employ ees as D.W.1. 6. We have patiently heard Mr. S. Sarma, learned counsel appearing on behalf of the appellants-defendants and Mr. S. Medhi, learned senior counsel appearing for the respondent-plaintiff and carefully perused the materials on re cord. 7. Mr. Sarma, learned counsel appearing for the appellants-defendan ts submitted that the learned trial Judge failed to appreciate that the schedule rate of 1979 edition was never revised by raising the same by 450% and as such the learned Judge committed error by rendering his findings that the respondent- plaintiff was entitled to get payment 300% above the schedule rate of 1979 by ra ising the same by 450%. It is also submitted that the rates of 1979 schedule edi tion corrected upto date i.e. as on 25.08.1992, which was the date of opening th e tender, was the schedule rate of 1979 and as such the respondent-plaintiff was entitled to get payment at the agreed rate which was 300% above the said schedu le rate and that the payment of the entire amount due has been made on the basis of the said rate. 8. Refuting the said argument, advanced by the learned counsel appe aring for the appellants-defendants, Mr. S. Medhi, learned senior counsel appear ing for the respondent-plaintiff, referring to the Ext.No.12 i.e. a sheet of cal culation of estimate, submitted that as per the Ext.No.12 the schedule rate of 1 979 edition was corrected/revised by raising the said rate by 450% at the time o f preparation of the estimate for the concerned work and as such the plaintiff, having quoted his rate 300% above the schedule rates of 1979 edition and correct ed upto date, was entitled to get payment @ 300% above the 1979 schedule rate af ter raising the said rate by 450%. Therefore, supporting the impugned judgment a nd decree, the learned senior counsel has submitted that the said judgment and d ecree was rightly passed taking into consideration the materials on record and a s such the same needs no interference. 9. In view of the arguments, advanced on behalf of the parties and their pleaded case, we find that the short question, involved in this case, is w hether the 1979 schedule of rates with upto date correction was 450% above the 1 979 schedule rate i.e. whether the 1979 schedule rate was revised, as on 25.08.1 992, by enhancing the same by 450%. The Issue Nos. 4 and 5 aforesaid cover the s aid question. The learned trial Judge has answered both the issues in affirmativ e i.e. in favour of the plaintiff. The Issue Nos. 1, 2, 3, 6 and 7 were also dec ided in favour of the plaintiff and thus the suit stood decreed in favour of the plaintiff. 10. In order to appreciate the arguments advanced on behalf of the p arties and to examine the correctness of the findings of the learned trial Judge , it will be appropriate to, briefly, recapitulate the evidence, both oral and d ocumentary, on record. Primarily, the fate of this case rests on documentary evi dence. 11. The plaintiff, examining himself as PW.1, exhibited the tender n otice as Exhibit (for short ’Ext.’) No.1, the work order as Ext.No.11, the expla nation as Ext.No.11(1) and Ext.No.11(2), the estimate as Ext.No.12, the calculat ion sheet of estimate (hand written), the schedule of rates of 1979 edition as E xt.No.13, the contract agreement as Ext.No.14 and the revised rate of 1993 as Ex t.No.15. In his evidence, given as PW.1, the plaintiff stated that the rate was revised during 1979 to 1992 by showing an increase of 450% and that the said enh ancement has been shown in the estimate. He further stated that he had quoted th e rate by adding 300% more on the said revised rate, as on the date of opening t he tender, and signed the contract agreement. In his cross examination, the PW.1 stated that, according to the tender notice i.e. Ext.No.1, the estimated cost w as Rs.15,200,00/- and that in Ext.No.14 i.e. contract-agreement, the contract va lue was mentioned as Rs.15,01,3,738/-. 12. The defendants also examined one witness as DW.1. Exhibiting the final bill (original copy) as Ext.No.-’Ka’ and the No Claim Certificate, issued by the Contractor, as Ext.No.-’Ka(4)’. The D.W.1 stated that the final bill was prepared as per the contract agreement deducting the income tax and that no mon ey was payable to the contractor. In his cross-examination, the DW.1 further sta ted that the contractor gave a note i.e. Ext.No.-’Ka(3)’ indicating without pre judice to my claim in C.R.2702/95 . He denied the suggestion that the corrected upto date final bill would be Rs.2,50,57,333.00. 13. From the above discussed evidence and the documents exhibited by the parties, there is no dispute that the approximate cost of the work was Rs.1 .52 crores and the last date of the submission of tender was 25.08.1992, which w as the date fixed for opening the tenders. The Ext.No.-11 i.e. work order reveal s that the estimated cost of the work was Rs.1,50,13,738/- and as per Ext.No.11( 1) the North East Frontier Railway Tender No.CE/CON/GL/92/25, the estimate of it em No.4, as shown at Column No.2 was Rs.15,17,722/- and the agreed rate was 300% above. In the note at Sl.No.II (i.e. bottom of the work order) Ext.No.11(2), it is mentioned that in respect of item No.4 the contractors should quote a percen tage of rate above/below/at par with the N.F. Railway Schedule of rates of 1979 edition corrected upto the date of opening of the tender i.e. as on 25.08.1992. There is no dispute to the above terms and condition. Therefore, as per Ext.Nos. -11, 11(1) and 11(2), the rate was required to be put, taking the schedule of th e rate of 1979 edition corrected as on 25.08.92. There is nothing on record to f ind that the said schedule of rate was corrected or revised or enhanced by raisi ng the rate by 450%. The respondent-plaintiff has relied on Ext.No.-12 i.e. the calculation sheet (hand written) used by the Railway for preparation of the esti mate. The learned counsel for the appellants-defendants, during the course of hi s argument, submitted that Ext.No.-12 was an internal document of the Railway De partment and that the same was prepared to calculate the estimate of the work fo r the purpose of issuing tender notice and that at no point of time the said doc ument/calculation sheet was published or notified indicating that the revised ra te of 1979 schedule was enhanced by 450%. Ext.No.-13 is the schedule of rates (r evised 1979) and as per the said schedule the estimated cost of the work was Rs. 15,17,722.33. The agreement of work i.e. the Ext.No.-14 also indicates the cost of the work (item No.4) was Rs.15,17,722/- and the rate quoted by the contractor was 300% above. The said agreement also reveals that the quoted rate was 300% a bove the schedule of rates of 1979 edition with correction upto the date of open ing of tender i.e. 25.08.1992. Neither in the work order nor in the agreement of contract there was any mention that the 1979 rate was corrected or enhanced or raised by adding 450% to the said schedule or rate. Admittedly, the Ext.No.-12 i s a hand-written document maintained in the Office of the appellants-defendants and the same was prepared, while calculating the estimate of the work. The said document was neither made a part of the tender notice nor the same published ind icating the 1979 schedule of rates. The bottom part of Ext.-12 reads as follows :- & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &. As per accepted rate vide CANO SE/61 dated 2.5.79, rate for SR item is 344% -1989 Add 10% 34.40 378.40 - 1990 Rs.4,92,670.45 Add 10% 37.84 415.24 - 1991 450% above NFSR Rs.22,17,017.00 Add 10% 41.52 456.76 - 1992 Rs.27,09,687.40 Non schedule item Rs.8,16,856.00 Say 450% above NFSR. Cost of transhipment = Rs.35,26,543.40 Hence cost of 4 Transhipment shed = 4 x 35,26,543.40 = Rs.1,41,06,173.60 say Rs.1,41,06,174.00 A careful reading of the rates of various items mentioned in Ext .No.12 and the rates mentioned in 1979 schedule reveals that the rates are not s ame. The basic rates of items mentioned in Ext.No.12 was much less than the rate s mentioned in 1979 i.e. the 1979 rate was much higher than the rates used in ca lculating the said estimate vide Ext.No.12. For example, the rates of works at S l.No.17 [814(a)] and 18 [601(a)] of the said schedule were Rs.73,830.00 and Rs.1 2,576.40 respectively, but in respect of similar items of works as mentioned in Ext.No.12 at Sl.No. 814(a) and 601(a) were Rs.18,457.50 and Rs.3,144.10 respect ively. In view of the low rate, as indicated in Ext.No.12, while preparing the e stimate, the said low rate was enhanced by 450% whereas the rates mentioned in 1 979 schedule was much more higher than the rate mentioned in Ext.No.12. Therefor e, the rates indicated in Ext.No.12, not being equal to the rate mentioned in sc hedule of rates of 1979, even if the basic rate mentioned in Ext.No.12 was enhan ced by 450% at the time of preparing the estimate, it cannot be held that the sa id enhancement would imply that the schedule of rates of 1979 edition was also e nhanced at the time of preparation of the estimate. Therefore, we find no diffic ulty to hold that the estimate was not prepared by enhancing the rates of 1979 s chedule (Ext.No.13). In our considered opinion, the contention of the appellant that the schedule of rates of 1979 stood corrected by raising the said rate by 4 50% as on 25.08.1992 is a misconceived one and not based on the materials on rec ord. We find no substantive evidence showing that the said rate was enhanced by adding 450% as on 25.08.92. Therefore, it can be gathered, from Ext.No.-11 (wor k order), Ext.No.-12 (calculation sheet) and Ext.No.-14 i.e. the agreement, that as on 25.08.1992, the schedule of rates of 1979 edition as mentioned in Ext. No s. 13 and 14 was not raised/revised/corrected by adding 450% of the said rate. I f the rate was enhanced/corrected by 450%, then there would have been no difficu lty to mention the same in the agreement, as well as in the tender notice. That apart, there was no official communication to make the respondent-plaintiff and other contractors believe that the 1979 schedule of rates was corrected by revis ing the existing rate by 450%. Hence, we find sufficient substance in the conten tion of the learned counsel, for the appellants-defendants, that the 1979 rate, as on 25.08.1992, was not enhanced by adding 450% to the existing rate. The fact that all running bills were accepted by the plaintiff at 300% above the 1979 sc hedule of rates, without adding 450% on the said rate, supports the plea of the defendants. Therefore, in the light of the above discussion, the learned trial J udge committed error by holding that, as per Ext.No.-12, the schedule of rates o f 1979 was enhanced by adding 450%. What the learned trial Judge misread was tha t the learned trial Judge treated the Ext.-12 as a document in support of the pl aintiff’s plea of enhancement of 1979 schedule of rates by 450%. But as discusse d above, the said finding is not based on a correct appreciation of materials on record. Therefore, the Ext.No.-12 can’t help the respondent-plaintiff in claimi ng that the 1979 schedule of rates was enhanced by 450%. There is no official n otification or publication showing that the 1979 schedule of rates was enhanced by 450%. Therefore, the plaintiff, having quoted the rate at 300% above the 1979 schedule of rates (corrected as on 25.08.1992) i.e. the Ext.No.-13, was entitle d to get payment @ 300% above the rate mentioned in the schedule of rates of 197 9 i.e. Ext.No.-13. As the final payment has been made on the basis of the said r ate, there is no outstanding amount for payment. 14. In view of the above discussion, we have no hesitation to hold t hat, on the date of opening the tender i.e. on 25.08.1992, the schedule of rates of 1979 edition was not enhanced by 450% and, therefore, the plaintiff was not entitled to get payment @ 300% above, by raising the 1979 schedule of rates by 4 50%. In our considered opinion the learned trial Judge committed an error by dec iding the issue Nos. 4 and 5 in favour of the respondent-plaintiff and thereby h olding that the respondent-plaintiff was entitled to get payment @ 300% above th e rate, after adding 450% on the existing schedule of rates of 1979 edition. The refore, the said issues should have been decided in negative and accordingly we do so. 15. Though the appellants-defendants raised the question of maintain ability, the learned trial Judge, while deciding the issue No.1, observed that t he defendants did not press the said issue and as such the same was decided agai nst the defendants. The said issue having been decided with the above observatio n, and the question of maintainability of the suit not being raised in the appea l also, we refrain from reopening the matter. 16. In deciding the issue No.2, the learned trial Judge came to the finding that there was cause of action for the suit. Considering the pleadings o f both the parties and the facts narrated therein, it appears that the plaintiff could show that there was substantial question for adjudication. Therefore, in our considered opinion, the learned trial Judge rightly decided the issue No.2 h olding that there was sufficient cause of action in favour of the plaintiff. 17. The issue No.3 involves the question regarding proper issuance o f notice under Section 80 CPC. Though, by the notice, dated 31.03.1997, issued u nder Section 80 CPC, an amount of Rs.2,85,74,668/- was claimed, later on, notici ng certain mistake, the said claim was corrected and another notice, dated 02.09 .1997, was issued claiming an amount of Rs.3,21,67,207/-. As observed by the lea rned trial Judge, the defendants did not deny the receipt of the said notice. Bu t, the defendants in their written statement, contended that the said notice was invalid and insufficient. Except taking the said plea, the defendants failed to substantiate, as to in what manner the same was invalid and insufficient. There fore, the notice, under Section 80 CPC, having been duly served on the defendant