First appeal no. 82 of 2006 1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 82 OF 2006 Government of Goa Through Executive Engineer, Soil Conservation Division, Director of Agriculture, Panaji-Goa. ... Appellants versus Shri Vassant Sawant, Public Works Department, Resident of Tonca, St. Estevam-Goa. ... Respondent Shri S. Vahidulla, Government Advocate for the Appellants. Shri T. Pereira, Advocate for the Respondent. CORAM : F. M. REIS, J. DATE : 16TH JUNE, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Decree dated 17-12-2005 passed by the learned Additional District Judge at Mapusa in Civil Suit No.186 of 2004. First appeal no. 82 of 2006 2 2. The Appellants filed a suit on the ground that there is a bund defending the paddy field called “Pirazona Khasan” at Moira, Bardez Taluka and that the said bund required repairs and consequently tenders were invited by the Appellants to repair the said bund. It is further their case that on 21-11-1984 the tender notice was duly advertised and thereafter published in the Gazette and the work was estimated at Rs.1,27,418.20. The work was tendered by the Respondent for a sum of Rs.1,08,062.35 and accordingly the same was awarded to the Respondent. Consequently, an agreement was entered on 17-12-1984 and the requisite deposit as earnest money was deposited by the Respondent. It is further their case that the Respondent completed 30% of the work and submitted two bills, one being dated 29-1-1985 for a sum of Rs.23,507.98, and in February, 1985 the said amount was paid to the Respondent. The work was not completed by 30-5-1985 and an extension of 123 days was sought by the Respondent to complete the said work. The extension was not granted and a concern was shown by the Local Tenants Association by letters dated 17-6-1985 and 25-7-1985. The Respondent was asked to restart and complete the work and on failure thereof compensation would be claimed from the Respondent. First appeal no. 82 of 2006 3 After October, 1985, the Respondent did not restart the work. Despite of correspondence addressed to the Respondent to complete the said work, the Respondent did not resume his activity. Show cause notice was issued calling upon the Respondent as to why action should not be taken against him for such agreement and thereafter the Tenants Association informed the Appellants that the Respondent had abandoned the work but, however, in October, 1986, the Respondent restarted the work and the same was stopped in the second week of April, 1986. The measurement of the work done was recorded and by letter dated 18-1-1994 the Appellants granted the Respondent extension of time of 582 days on payment of 5% of the estimated cost as compensation. Ultimately, after lot of correspondence, as the Respondent did not complete the work the Appellants issued a notice for termination of the contract vide final notice dated 19-3-1997. It was further their case that the Appellants had to complete the work and incur expenses of Rs.1,91,175/- and consequently prayed that the Respondent be directed to pay the said amount with interest from 2-1-1987. First appeal no. 82 of 2006 4 3. The Respondent contested the suit by filing a written statement and the fact that the tender was awarded to them came to be admitted. The Respondent denied that extension was not granted by the Appellants and they also denied that the final bill was prepared in view of an agreement between the Appellants and the Respondent. It is further his case that the work could not be completed on account of breaches which occurred to the bund and that the Respondent was having financial difficulties which prevented him in completing the balance work. It is further his case that the work was not retendered and denied that any amount was spent by the Appellants to complete their work. 4. The learned Judge after framing the issues by impugned Judgment dated 17-12-2005 dismissed the suit filed by the Appellants. Being aggrieved by the said Judgment, the Appellants have preferred the said appeal. 5. Shri S. Vahidulla, learned Government Advocate appearing for the Appellants has assailed the impugned Judgment on different counts. The main points on which the impugned Judgment was assailed First appeal no. 82 of 2006 5 by the Appellants was that the learned Judge had erroneously come to the conclusion that the suit filed by the Appellants was barred by limitation, and pointed out that the finding of the learned Judge is totally erroneous. The next contention is that the learned Judge on the face of the impugned Judgment has accepted the claim of Rs.1,91,170/- as claimed by the Appellants but, however, whilst passing the impugned Judgment and deciding issue no.6 has erroneously recorded that the finding on issue no.6 is in the negative. 6. On the other hand, Shri T. Pereira, learned Counsel for the Respondent has supported the impugned Judgment. He has fairly conceded that the suit was not barred by limitation but, however, he pointed out that there is no evidence on record to claim the said amount of Rs.1,19,170/- as prayed, considering the finding on issue no.6. 7. Having heard the learned Counsel and on perusal of the record, the following two points for determination arise:- 1. Whether the learned Judge was justified to come to the First appeal no. 82 of 2006 6 conclusion that the suit filed by the Appellants was barred by limitation? 2. Whether the learned Judge was justified to come to the conclusion that the Appellants were entitled to a sum of Rs.1,91,170? 8. With regard to the first point for determination, the learned Judge whilst passing the impugned Judgment has come to the conclusion that the suit filed by the Appellants is barred by limitation but, however, Shri T. Pereira, learned Counsel for the Respondent has fairly conceded that the suit is not barred by limitation in view of the period prescribed under the Indian Limitation Act, 1963 for suits filed by the Appellants. Consequently, the finding of the learned Judge to the effect that the suit is barred by limitation cannot be sustainable and the same is quashed and set aside. The first point for determination is answered accordingly. 9. With regard to the second point for determination on perusal of the impugned Judgment, I find that the learned Judge has given a finding with regard to issue Nos.6 and 10 at para 5 of the impugned First appeal no. 82 of 2006 7 Judgment that the Appellants have proved that they are entitled for the said sum of Rs.1,91,170/- but, however, while deciding the said issue at para 19, the learned Judge has held that the Appellants have failed to prove that they had to spend the said sum of Rs.1,91,170/-. Even whilst considering the said aspect, there are no appropriate reasons to arrive at suchs finding nor any material was considered whilst coming to the said conclusion. The learned Government Advocate fairly accepted that the learned Judge has not appreciated the evidence on record to come to such finding. Considering the contrary findings given by the learned Judge on the said aspect and in the interest of justice, I find it appropriate that the learned Judge be directed to decide the said suit afresh after hearing both the parties in accordance with law. In case any of the parties desire to lead any further evidence, liberty is given to them to file an appropriate application and the same shall be decided by the learned Judge on its own merits. The second point for determination is answered accordingly. 10. In view of the above, I pass the following order:- First appeal no. 82 of 2006 8 ORDER 1. The appeal is partly allowed. 2. The impugned Judgment and Decree dated 17-12-2005 is quashed and set aside. 3. Civil Suit No.186 of 2004 is restored to the file of the learned Additional District Judge at Panaji. 4. The learned Additional District Judge is directed to decide the said suit afresh after hearing both the parties in the light of the observations made hereinabove, in accordance with law. All contentions of both the parties on merits are left open. 5. Parties are directed to appear before the learned Judge on 16-8-2011 at 2.30 p.m. F. M. REIS, J. RD