HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL N. 66 OF 2007 Executive Engineer ................................Appellant. Versus Har Singh .....................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 judgment and decree dated 28.7.2006 passed by the District Judge, Champawat in Original Suit No. 5 of 2004 Har Singh Vs. Executive Engineer, P.W.D., Champawat. 3. Briefly stated, suits were filed by the plaintiff/ respondent being Original Suit No. 5 of 2004 Har Singh Vs. Executive Engineer, P.W.D., Champawat for recovery of a sum of Rs. 4,09,110.50. 4. According to the plaint averments, the defendant invited tenders for construction of Champawat –March 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. 24 EE dated 12.10.2000 2.000-2.5000 km. Rs. 4,19,108.25 and Agreement No. 23 EE dated 12.10.2000 0.5- 1.000 Km. Rs. 4,15,016.25. Thereafter, the plaintiff was got an amount of Rs. 2000 each deposited in the office in the shape of the stamps. 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 construction work, the plaintiff was given a sum of Rs. 1,95,081 out of Rs. 4,19,108.25 in respect of Agreement No. 24 EE dated 12-10- 2000 and a sum of Rs. 2,29,933 out of Rs. 4,15,016.25 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 the 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 his 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 stating 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. 4,09,110.50 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 defendant has stated that the plaintiff / respondent has not done the work according the 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 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 was further been stated that a sum of Rs. 2,55,324.60 has been paid in respect of Agreement No. 23 EE dated 16.11.2000 and a sum of Rs. 1,59,691.65 is to be paid and a sum of Rs. 2,12,367.00 has been paid in respect of Agreement No. 24 EE dated 12-10-2000 and a sum of Rs. 2,06,741.25 is to be paid. 6. On the pleadings of the parties, the court below has framed the following issues: “1. Whether the remaining final payment of Rs. 4,09,110.50 has not been made to the plaintiff by the defendant after the completion of construction work and its repair in respect of Agreement NO. 24 EE and Agreement No. 23 EE?, if yes, effect? 2. Whether a sum of Rs. 3,663,432.90 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 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 9Ga1/7, Photostat copy of the notice dated 24.8.2003 Paper No. 9Ga1/8, Photostat copy of the Receipt of the Registry and Acknowledgement 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 the 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. 4,09,110.50 has not been made to the plaintiff by the defendant after the completion of construction work and its repair in respect of Agreement NO. 23 EE and 24 EE and as to whether a sum of Rs. 3,66,432.90 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. 3,66,432.90 has been admitted by the defendant and the plaintiff / respondent has not shown any document while claiming a sum of Rs. 4,09,110.50 due against the defendants. Thus, the defendant will be liable to pay a sum of Rs. 3,66,432.90 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 a finding that the plaintiff has not shown any document establishing that the errors had been rectified, thus, it 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 statements available on record and perused the judgment and decree passed by the court below. 14. Sri Har Singh / plaintiff in paragraph 3 of his affidavit has stated as under: - “3- ;g fd nkSjkus dk;Z izfroknh }kjk vfUre Hkqxrku ds :i esa oknh dks vuqcU/k 24 bZ0bZ0 fnukad 12-10-2000 :0 419108-25 ¼pkj yk[k mUuh’k gtkj ,d lkS lkB :i;k iPphl iSlk½ ds foifjr :Ik 119081-00 ¼,d yk[k mUuh’k gtkj ,D;klh :0½ ek= rFkk vuqcU/k la[;k 23 bZ0bZ0 fnukad 12-10-2000 :0 415016-25 ¼pkj yk[k iUnzg gtkj lksyg :Ik;k iPphl iSlk½ ek= ds foijhr :0 229933-00 ¼nks yk[k mUurhl gtkj ukS lkS rSarhl :Ik;k½ dk gh Hkqxrku fd;k x;k “ks’k Hkqxrku dk;Z lekfIr ij fd;k tkuk 'kiFkdrkZ dks crk;k x;k gSA 4- ;g fd 'kiFkdrkZ 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 dj nsxk ijUrqdk;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 dk;Z 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 paragraphs of the affidavit are quoted below: “3- ;g fd okn i= dk in ua0 3 ftl rjg rgjhj gS Lohdkj ugha gSA vuqcU/k la0 23 bZ0bZ0 fnukad 12-10- 2000 ds fo:) 255324-60 :Ik;s dk Hkqxrku fd;k tk pqdk gS] rFkk :Ik;k 159691-65 dk Hkqxrku vo’ks"k gSA rFkk 24 bZ0bZ0 fnukad 12-10-2000 ds fo:) :Ik;k 212367-00 dk Hkqxrku fd;k x;k gSA ,ao vo’ks"k Hkqxrku 206741-25 gSA ’ks"k vfrfjDr dFku esaA 5- ;g fd okn i= dk in ua0 5 ftl rjg rgjhj gS Lohdkj ugha gSA foHkkxh; fu;eksa ,ao ekudksa ds vuqlkj =qfViw.kZ dk;Z dk Hkqxrku lEHko ugha gS] tc fd oknh }kjk foHkkxh; vuqjks/k ds mijkUr Hkh dk;Z LFky ij gq;h =qfV;ksa dks nwj djus dk iz;kl ugha fd;k x;kA” 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 was 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 36 of the Code of Civil Procedure and the same deserves to be dismissed. 18. Consequently, First Appeal is dismissed. No order as to costs. (Rajesh Tandon, J.) 20.5.2008 Rathour