HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 65 OF 2007 Executive Engineer ..............................Appellant. Versus Dinesh Chandra Patni ...................Respondent. Dated: 20.5.2008 Hon’ble Rajesh Tandon, J. Heard Sri R.C. Arya, Standing Counsel for the appellant and Sri Amit Kapri, counsel for the respondent. 2. By the present First Appeal filed under Section 96 of the Code of Civil Procedure, appellant has prayed for setting aside the judgments and decree dated 28.7.2006 passed by the District Judge, Champawat in Original Suit No. 6 of 2004 Dinesh Chandra Patni Vs. Executive Engineer, P.W.D., Champawat. 3. Briefly stated, suits were filed by the plaintiff/ respondent being Original Suit No. 6 of 2004 Dinesh Chandra Patni Vs. Executive Engineer, P.W.D., Champawat for recovery of Rs. 3,96,573.25. 4. According to the plaint averments, the defendant invited tenders for construction of Champawat – Manch Motor Marg. By completing all the formalities, the plaintiff / respondent sent his tender to the office of the defendant. The tender of the plaintiff / respondent was accepted and work order was passed in favour of the plaintiff / respondent vide Agreement No. 34 EE dated 16.11.2000 1.000-2.000 km. Rs. 8,34,050=25. Therefore, the plaintiff got an amount of Rs. 2 3400=00 deposited in the office in the shape of the stamp. Abiding by the specified terms and conditions, the plaintiff / respondent started the construction of the Champawat – Mancha Motor Road and completed the construction in the year, 2001. During the course of the construction work, the plaintiff was given a sum of Rs. 4,37,477 out of Rs. 8,34,050=25 and it was told that rest of the payment shall be made after the completion of the work. In presumption that the payment shall definitely be made by the defendant / appellant, the plaintiff / respondent collected some money from his friends in order to pay the wages of the labourers, but after the completion of the work, the defendant did not pay the rest of the amount and due to this, the plaintiff is liable to pay a huge amount borrowed by him. The plaintiff / respondent a number of times requested the defendant for final payment, but the defendant / appellant did not pay any heed to it. Being aggrieved by the said conduct, the plaintiff / respondent, the plaintiff / respondent on 22.7.2002 moved an application before the defendant for final payment of him bill, but despite that application, no payment was made to the plaintiff. Thereafter, the plaintiff / respondent sent a notice through his advocate on 22.10.2002. It was replied by the defendant on 30.10.2002 stating therein that after the repair of the construction, the final payment can only be made, though the liability to repair the construction was not of the plaintiff. When no payment was made, the plaintiff / respondent again sent a notice on 24.8.2003 through his advocate, which was never replied. The plaintiff has submitted that a sum of Rs. 3,96,573=25 is to be received from the defendant/ appellant. 5. The defendant has contested the suit by denying the averments contained in the plaint. However, the defendant has admitted the contents of paragraph 1 of the plaint. The 3 defendant has stated that the plaintiff / respondent has not done the work according to departmental norms. Rest of the contents have been denied by the defendant. In additional pleas, the defendant / respondent has stated that through letters dated 26.11.2001, 16.8.2002 issued by the Assistant Engineer (Second) the plaintiff was made aware that the work done by him has not been found to be up to the mark and without clearing the same, it was not possible for him to make the final payment, but the plaintiff / respondent did not try to rectify the same. The account of the approved work has been closed and after receipt of the fund, the payment can be made according to the work done by him. It has further been stated that a sum of Rs. 4,83,440.00 and the payment of Rs. 3,50,610.25 is remaining. 6. On the pleadings of the parties, the court below has framed the following issues: “1. Whether the remaining final payment of Rs. 3,96,573.25 has not been made to the plaintiff by the defendant after the completion of construction work and its repair in respect of Agreement NO. 34 EE? It yes, effect? 2. Whether as sum of Rs. 3,50,610.25 of the plaintiff is due over the defendant, as has been stated by the defendant? 3. Whether the work done by the plaintiff is defective, if yes, effect? 4. Whether the plaintiff is entitled to get any relief? 7. Towards the documentary evidence, the plaintiff / respondent has filed per list 8 Ga 1 copy of the application dated 4 22.7.2002 moved by the plaintiff Paper No. 9Ga1/1, Photostat copy of the Registry Receipt Paper No. 9Ga1/2, Photostat copy of the Notice dated 22.10.2002 Paper No. 9Ga1/3 to 9Ga1/4, Photostat copy of the Receipt of the Registry and acknowledgement Paper No. 9Ga1/5, Photostat copy of the reply to the notice Paper No. 9Ga1/6 to 9G1/7, Photostat copy of the notice dated 24.8.2003 Paper No. 9Ga1/8, Photostat copy of the Receipt of the Registry and Acknowledgment Paper No. 9Ga1/9 and Photostat copy of the A.D. Card Paper No. 9Ga1/10. Towards the oral evidence, the plaintiff / respondent has filed his own affidavit. 8. Towards the documentary evidence, the defendant has filed per list 17 Ga 1 Photostat copy of the notice dated 26.11.2001 in respect of Agreement No. 34 EE Paper No. 18 Ga1 and Photostat copy of the notice dated 16.8.2002 in respect of Agreement No. 34 EE Paper No. 19 Ga 1. Towards the oral evidence, the defendant has filed the affidavit of Dhirendra Narain Dubey, Junior Engineer, Provincial Division, Public Works Department, Champawat. 9. While deciding the issue no. 1 and 2 as to whether the remaining final payment of Rs. 3,96,573.25 has not been made to the plaintiff by the defendant after the completion of construction work and its repair in respect of Agreement NO. 34 EE and as to whether as sum of Rs. 3,50,610.25 of the plaintiff is due over the defendant, as has been stated by the defendant, the court below has recorded a finding that since the amount of Rs. 3,50,610.25 has been admitted by the defendant and the plaintiff / respondent has not shown any document while claiming a sum of Rs. 3,96,573.00 due against the defendants. Thus, the defendant will be liable to pay a sum of 5 Rs. 3,50,610.25 to the plaintiff. This issue has been decided accordingly. 10. While deciding the issue no. 3 as to whether the work done by the plaintiff is defective, the court below has recorded as finding that the plaintiff has not shown any document establishing that the errors had been rectified, thus, is clear that the work done by the plaintiff is defective. This issue has been decided accordingly. 11. While deciding the issue no. 4 as to whether the plaintiff is entitled to get any relief, the court below has recorded a finding that since the repair work has not been done by the plaintiff, therefore, from the amount payable to the plaintiff 10% of the same shall be deducted and rest of the amount shall be paid to the plaintiff / respondent. 12. The court below has decreed the suit of the plaintiff on 28.7.2006. 13. I have gone through the statement available on record and perused the judgment and decree passed by the court below. 14. The plaintiff Dinesh Chandra Patni has stated in his affidavit to the following effect: “3- ;g fd nkSjkus dk;Z izfroknh }kjk Hkqxrku ds :i esa oknh dks vuqcU/k 34 bZ0bZ0 fnukad 16-11- 2000 :0 834050-25 ¼vkB yk[k pkSarhl gtkj :i;k iPphl iSlk½ ds foijhr :i 437477-00 ¼pkj yk[k lSarhl gtkj pkj lkS lRrj :0½ dk gh Hkqxrku fd;k x;k 'ks"k Hkqxrku dk;Z lekfIr ij fd;k tkuk 'kiFkdrkZ dks crk;k x;kA 6 4- ;g fd oknh us vius O;fDrxr iz;klksa ls vius fe=ksa nksLrksa ls /kujkf’k m/kkj ekaxdj bl izR;k’kk esa etnwjksa dk Hkqxrku fd;k fd izfroknh }kjk vfUre Hkqxrku dk;Z lekfIr mijkUr izkIr djus ls oknh m/kkj /kujkf’k dk Hkqxrku dj nsxk ijUrq dk;Z lekIr mijkUr Hkh izfroknh }kjk 'kiFkdrkZ dks vfUre Hkqxrku ugha fn;k x;k ftl dkj.k 'kiFkdrkZ ij m/kkj nsunkjh vo’ks"k gS ftlls og Hkqxrku ds vHkko esa vnk ugha dj ik jgk gSA” 15. The Assistant Engineer of P.W.D. in his affidavit has admitted the fact that some amount is unpaid and has stated that there was some defect in the work of the plaintiff. Relevant paragraph of the affidavit are quoted below: “3- ;g fd okn i= dk in ua0 3 ftl rjg rgjhj gS Lohdkj ugha gSA vuqcU/k ds fo:) :0 483440-00 dk Hkqxrku fd;k tk pqdk gS ,oa 350610-25 dk Hkqxrku vo’ks"k gS 'ks"k vfrfjDr dFku esa gSA 5- ;g fd okn i= dk in ua0 5 ftl rjg rgjhj gS Lohdkj ugha gSA foHkkxh; fu;eksa ,oa ekudksa ds vuqlkj =qfViw.kZ dk;Z dk Hkqxrku lEHko ugha gS] lgk;d vfHk;Urk f}rh; ds i=kad 177 @ ch0,Q fnukad 26-11-01 o 119@ch0,Q fnukad 16- 08-02 }kjk oknh dks mlds }kjk fd;s x;s dk;Z dh dfe;ksa ds fy, voxr djk;k x;k ysfdu oknh }kjk dfe;ksa dks nwj djus gsrq iz;kl ugha fd;k x;kA 6- ;g fd okn i= dk in ua0 6 vkaf’kd :i ls Lohdkj gS esa uksfVl rFkk tokc fn;k tkuk Lohdkj gSA oknh }kjk foHkkxh; vuqjks/k ds mijkUr Hkh dk;ZLFky =qfV;ksa dks nwj ugha fd;k x;k ftl 7 dkj.k Hkqxrku ugha fd;k tk ldk uksfVl fof/kd :i ls iszf"kr gS 'ks"k vfrfjDr dFku esa vuqjks/k ds mijkUr Hkh =qfV;ksa dks nwj ugha fd;kA ftl dkj.k Hkqxrku ugha fd;k tk ldk 'ks"k vfrfjDr dFku esaA ” 16. In view of the aforesaid statements and the observations made above, I do not find any infirmity in the judgment and decree passed by the court below as the judgment and decree has rightly been passed. Since the plaintiff had done work, therefore, he has entitled to get his remuneration, but since no repair work had been done by the plaintiff, ten percent of the amount payable to the plaintiff has very rightly been deducted. 17. In view of the above, I find no merit in the present First Appeal so as to interfere under Section 96 of the Code of Civil procedure and the same deserves to be dismissed. 18. Consequently, First Appeal is dismisses. No order as to costs. (Rajesh Tandon, J.) 20.5.2008 Rathour