IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.603 of 2010 Magadh Construction Works, Mohalla – New Area, Nutan Nagar, P.S. Civil Lines, District – Gaya through its Proprietor Sri Ram Naresh Sharma, Son of Late Ambika Singh. ………………. Plaintiff …………….. Appellant. Versus 1. The State Of Bihar through Collector, Gaya. 2. Engineer in Chief – cum – Special Secretary – cum – Additional Commissioner, Road Constructions Department, Bihar Technical Building, Visheshwaraiya Bhawan, New Secretariat, Patna. 3. Work Commissioner, Road Constructions Department, Bihar Technical Building, Visheshwaraiya Bhawan, New Secretariat, Patna. 4. Chief Engineer, South Bihar Wing, Road Constructions Department, Bihar Technical Building, Visheshwaraiya Bhawan, New Secretariat, Patna. 5. Superintending Engineer, Road Construction Department, Magadh Circle, Near Gaya Club, P.S. Rampur, District – Gaya. 6. Executive Engineer, Road Construction Department, Division No. 1 Gaya, Mohalla – Sewa Nagar, P.O.- Gaya, P.S. Civil Lines, District – Gaya. …………….. Defendants ………….. Respondents. ----------- For the Appellant :- Mr. Pushkar Narain Shahi, Advocate. :- Mr. Patanjali Rishi, Advocate. :- Mr. Sanjeet Kumar Singh, Advocate. For the Respondents :- Mr. P. K. Verma, AAG XI. :- Mr. Prabhat Kumar Sharan, A.C. to AAG XI. 03/ 13.08.2010 Heard learned counsel for the appellant and the State. This miscellaneous appeal is directed against the order dated 21.04.2010 passed by the Sub-Judge-I, Gaya in Money Suit No. 2 of 2005 by which he has rejected the injunction petition. However, the plaintiff filed a suit for a money decree for Rs.7,87,668/- in the case of the plaintiff that he take the contract for worth Rs.1,14,68,312/- by the two agreements bearing agreement no. 47 F 2 / 1998-1999 worth Rs. 33,34,503/- and 75 F 2 / 1998-1999 worth Rs. 87,23,285 respectively. However, the work completed and the work worth Rs. 1,14,68,312 /- but a payment has only been made worth Rs.1,06,80,644/- and there is no dispute that the work has not been completed and also no dispute regarding the quality of the work. - 2 - However, the suit filed after due notice but since the defendant State appeared but did not file written statement and hence they were debarred under Order VIII Rule 10 of the Civil Procedure Code by order dated 06.12.2006 and the suit proceeded and during the pendency of the suit the State has issued a notice to the appellant seeking refund of Rs.5,69,899/- on the ground of excess payment has been made for non use of the bitumen which was supplied to the contractor. Hence a petition under Order XXXIX Rule 1 and 2 read with Section 151 of the Civil Procedure Code has filed in the suit by plaintiff to injunct the State from affecting the said notice. However, on the injunction petition a reply was filed by the State that the claim of the plaintiff is not based on correct measurement as per M.B. No. 2944 page 57 to 63, as alleged in the plaint also. However, after considering the submission of both parties, the lower court rejected the petition holding that the plaintiff has taken the excess amount but has not completed the work and hence there is no prima facie case or balance of convenience. Learned counsel for the appellant, however, contended that the finding recorded by the learned lower court in rejecting the injunction petition is beyond the record as it is not the case of either of the parties that the work has been not completed or there is any dispute about the work and hence contended that the finding recorded by the learned lower court is not sustainable. However, the plaintiff claims that the suit is for enforcing the agreement No. 75 F 2 / 1998 – 1999 worth Rs. 87,23,285/- - 3 - whereas in the notice the agreement no. though mentions 75 F 2 / 1998 – 1999 but the contract amount is Rs.87,23,285/-. Further it is true that the suit has been filed for the realization of amount out of the contract arising out for which the work has been done. However, the suit has been filed on 21.03.2005 itself and the notice has been issued in 2008. However, the learned lower court without taking into consideration the respective case of the parties rejoinder and has decided the fact on extraneous consideration that work has not been done which fact beyond record as case of neither party that work not completed and hence the impugned order is not sustainable and hence the impugned order is set aside and is remanded back for consideration afresh by the lower court. However, the lower court while considering the matter afresh shall take into consideration whether the plaintiff’s injunction petition is maintainable without making any amendment in the plaint regarding the subsequent event about the notice issued by the State and the fact whether any such issues have been framed in the suit and further taking into consideration the variation of contract amount in case of the mention in the plaint and the notice issued and hence with these observations the matter is sent down to consider afresh in the light of the observation and the impugned order is set aside and the miscellaneous appeal is allowed with the above observation for fresh consideration. Kundan (Gopal Prasad, J.)