RSA No.3451 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.10264-C of 2008 and RSA No.3451 of 2008 Date of Decision:03.11.2008 Union of India & Ors. ....appellants Versus Satish Saini .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Puneet Jindal, Advocate for the appellants **** RAKESH KUMAR GARG J. CM No.10264-C of 2008 For the reasons recorded in the application the same is allowed and delay in making good the deficiency in Court fee, is condoned. RSA No.3451 of 2008 This is defendants' second appeal challenging the judgment and decrees of the Courts below, whereby suit of the plaintiff for recovery of Rs.1,65,681/- with interest at the rate of 6% per annum from the date of suit till its realization, has been decreed. In brief, the case of the plaintiff/respondent is that he had been allotted a work(Sanitation of 300 Units Type I & II Staff Quarters with the provision of Bio-Latrines in the jurisdiction of AEN, Pathankot) on 17.02.1994. The plaintiff had completed the aforesaid work. In the course of execution of the aforesaid work, the Inspector of Works, Pathankot, forced the plaintiff to carry out some extra work on the assurance that payment for those works will also be adjusted against the aforesaid allotted work. The aforesaid work was duly carried out by the plaintiff. Plaintiff requested for payment when the works were completed, but no payment RSA No.3451 of 2008 2 was made in respect of aforesaid works. When the payment was not paid, plaintiff approached defendant No.2 D.S.E-II, Ferozepur on 20.11.1995 and defendant No.2 nominated AEN(Northern Railways), Pathankot to jointly inspect, the residence of Inspector of Works, Pathankot vide verbal order dated 30.01.1996 passed by defendant No.2. After joint inspection a detailed report was submitted to defendant No.1 on 27.04.1996 wherein details of work was carried out by the plaintiff was submitted to defendant No.2 but who refused to make the payment. In spite of the confirmation of the work defendant No.2 rejected the claim of the plaintiff vide letter dated 24.09.1996 on the plea that work in dispute is not done on order of AEN, as the plaintiff had been carrying out the work at the spot under the supervision of Inspector of works,Pathankot, therefore, Inspector of Works is responsible for it and as such all the defendants were jointly and severally responsible to make the payment to the plaintiff but they are not ready despite repeated requests and as such the present suit filed. Notice of the suit was given to defendants who filed joint written statement, whereby they contested the suit by taking preliminary objections that plaintiff has no locus standi to file the present suit and as such suit of the plaintiff is bad for not serving notice u/s 80 CPC. It is further averred that plaintiff has not disclosed under which allotment order or contract work he undertook the alleged works duly completed, therefore , the suit of the plaintiff is not maintainable and the same is liable to be dismissed. On merits, all the averments made in the plaint are specifically denied. From the pleadings of the parties, following issues were framed by the trial Court: 1. Whether the plaintiff is entitled to recover Rs.1,00,000/-for the additional work done by him detailed under the heads 1 to 12 in para No.2 of the plaint? OPP RSA No.3451 of 2008 3 2. Whether the defendants have withheld the payment of Rs.63,600/- deposited by the plaintiff towards earnest money/security?OPP 3. Whether the plaintiff is entitled to recover Rs.2081/- on account of item No.135? OPP 4. Whether the plaint is vague, lacks of material particulars and does not disclose any cause of action? If so, its effect? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the suit as framed is not maintainable?OPD 7. Whether notice u/s 80 CPC is not valid? OPD 8. Relief. After hearing arguments of the learned counsel for the parties, the trial Court decided issues No.1 to 3 in favour of plaintiff- respondent. Issues No. 4 to 7 were decided against the defendants as these issues were not pressed by the defendants and the suit of the plaintiff-respondent was decreed with costs vide judgment and decree dated 06.12.2001. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the defendants filed an appeal which was dismissed by Additional District Judge(Ad hoc) Fast Track Court, Gurdaspur, vide impugned judgment and decree dated 11.06.2008. Still not satisfied, the defendants have filed the instant appeal in this Court, challenging the aforesaid judgment and decrees of the Courts below. Mr.Puneet Jindal, Advocate, learned counsel for the appellants has vehemently argued that plaintiff-respondent is not entitled to recover the amount of additional work done by him because no contract RSA No.3451 of 2008 4 was made by the plaintiff with the appellants regarding additional work which was done by him. It was further argued by the learned counsel for the appellants that the plaintiff-respondent failed to serve legal notice under Section 80 CPC which is a mandatory requirement so as to sue any public sector undertaking/government undertaking. However, the Courts below have miserably failed to take into consideration the arguments raised by the appellants and therefore the judgment and decrees of the Courts below are liable to be set aside. I have heard learned counsel for the appellants and perused the record. However, I find no merit in the arguments raised by the learned counsel for the appellants. Undisputedly, vide agreement dated 17.02.1994, the plaintiff-respondent was allotted a work for the sanitation of 300 Units Type I & II Staff Quarters with the provision of Bio-Latrines. This work was duly completed by the plaintiff-respondent regarding which there is no dispute. This is also not in dispute that the appellant carried out the extra work as alleged by him for which there was no contract between him and the appellants. However, it has been fully proved on the record that the additional work was completed and the same was handed over to the defendants which was accepted and enjoyed by the department. There is ample evidence on record to prove the excess work done by the plaintiff. It is useful to refer to the observations of the Lower Appellate Court in this regard: “ I find no force in this connection raised by counsel for appellants because the plaintiff has fully proved on the file that some additional work has been done beyond agreement with defendants railway and the plaintiff has examined PW1 K.C.Dogra and PW2 Ram Avtar, Head Clerk and PW4 Ashwani Kumar who have deposed that allotment RSA No.3451 of 2008 5 of work of 17.02.1994 was admitted by both parties even factum to complete contract and defendant while appearing in witness box DW1 Shri Kailash Chand Dogra and DW2 Pardeep Kumar also admitted regarding work done by the plaintiff. It is also proved that vide agreement 414/Pathankot dated 17.02.1994 there was a dispute in regarding to work done by the plaintiff excess of more than which has been allegedly mentioned by the plaintiff in the measurement report Ex.PX as well as in the report submitted by Joint Committee. Photo copy of which is Ex.P-5, as such, simple refusal by defendants regarding fact that additional work has not been done by the plaintiff cannot be relied upon. Moreover defendants have admitted regarding execution of excess work in letter Ex.PA dated 06.08.1996 and letter Ex.P-7 and in the report Ex.P-5 submitted by committee after carrying of the measurement of the excess work on the directions of higher officer. Similarly, DW1 has admitted in his cross-examination regarding execution of work done by the plaintiff but no payment has been made by defendants to the plaintiff. Similarly, DW-2 has admitted in his cross- examination regarding work done by the plaintiff excess of agreement. It is fully proved that execution of excess work beyond contract work has been done by the plaintiff as per documents produced by the plaintiff. Now, question arose that whether the plaintiff is entitled to recover suit amount for execution of excess work done by the plaintiff or not. The appellant alleged that the plaintiff is not entitled for payment of the additional work done beyond contract.” RSA No.3451 of 2008 6 In V.R.Subramanyam vs.B.Thayappa and ors. All India Reporter,1966(SC) 1034, the Hon'ble Apex Court held as under: “ If a party to a contract has rendered service to the other not intending to do so gratuitously and the other person has obtained some benefit, the former is entitled to compensation for the value of the services rendered by him. Where, therefore, a building contractor made additional constructions to the building which were not done gratuitously and upon an oral agreement claimed compensation at prevailing market rate against owner of the plot he was entitled to receive compensation for the work done which was not covered by the the contract, even if he failed to prove an express agreement in that behalf. By awarding a decree for compensation under the statute and not under the oral contract pleaded, there was in the circumstances no substantial departure from the claim made by the building contractor.” In Union of India versus Kamal Kumar Goswami and others, AIR 1974 Calcutta 231, the Hon'ble Calcutta High Court held as under: “A request may be made by a wholly unauthorized person or such request may be wholly invalid in law yet it does not lie in the mouth of a defendant to say that he is not liable to pay compensation under Section 70 of the Act in the absence of a request where he has received the benefit of the work lawfully done by the plaintiff not intending to do so gratuitously.” In view of the law laid down in the above cases, I find no force in the contentions raised by the appellants because the work has RSA No.3451 of 2008 7 been completed and the same has been accepted and enjoyed by the appellants. Therefore, appellants are liable to pay additional work done by the plaintiff. No substantial question of law arises in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 03.11.2008 neenu