HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CITY CIVIL COURT APPEAL No.75 of 2001 JUDGMENT: The plaintiff, in O.S.No.1346 of 1989 on the file of II Senior Civil Judge, City Civil Court, Hyderabad, filed the suit for recovery of Rs.56,305.47 ps. The allegations in the plaint go to show that the plaintiff has supplied sand under two tenders i.e. TC-I and TC-II. Under TC-I, the rate quoted was Rs.71/- per cubic metre and under TC-II at the rate of Rs.69/- per cubic metre. During the year 1985, plaintiff has supplied material worth of Rs.3,64,736.24 ps for TC-I contract and Rs.2,06,729.90 ps for TC-II and chips worth Rs.8,809.32 ps. Out of the total amount, the plaintiff has received only Rs.5,57,979.70 ps and the balance amount of Rs.22,295.76 ps for TC- I tender along with interest and also the Earnest Money Deposit (for short E.M.D) of Rs.14,000/- which was deposited for the TC-I tender are payable. As the defendant has not paid the amount, the above suit was filed for recovery of the said amount. 2. The defendant has filed a written statement admitting the supply of sand by the plaintiff. There was verification of the quality and quantity differences and entire bills were paid. There is no amount due to the plaintiff. No objection was raised with regard to the quality or quantity assessed by the defendant. The relief of refund of the E.M.D is not maintainable. There is no cause of action to file the suit and hence the defendant pleaded for dismissal of the suit. 3. On the basis of the above pleadings, the following issues have been framed for trial: 1) Whether the suit is in time? 2) Whether the plaintiff is entitled to the amount of Rs.22,295.76 ps as claimed? 3) Whether the plaintiff is entitled to refund of EMD amount claimed without “no objection certificate from the Asst. Director of Mines and Geology? 4) Whether the plaintiff is entitled to claim interest at the rate claimed? 5) Whether the defendant is entitled to exemplary costs? 6) To what relief?” 4. On behalf of the plaintiff, P.W.1 is examined and marked Exs.A.1 to A.27. On behalf of the defendant, D.W.1 is examined and marked Exs.B.1 to B.13. 5. On considering the evidence on record, the lower Court took the view that the rate of Rs.71/- per cubic metre claimed by the plaintiff under TC-I supply is not proved and the payment made by the defendant is correct and dismissed the claim but however ordered refund of the E.M.D. Aggrieved by the said judgment, the present appeal is filed. 6. The points that arise for consideration are: 1) Whether the plaintiff is entitled for the decree of Rs.22,295.75 ps as the difference in value of the sand supplied under TC-I contract? 2) Whether the judgment and decree passed by the learned II Senior Civil Judge is legal and sustainable? 7. POINTS:- Learned counsel for the appellant strongly contends that the first tender was accepted for supply of the sand at the rate of Rs.71/- per cubic metre and this fact was also admitted by the D.W.1 in his evidence and the lower Court erred in holding that there is no proof of the rate being fixed at Rs.71/- per cubic metre under TC-I contract. According to him, if this fact is admitted then the claim of the plaintiff should not have been dismissed. Admittedly, tender is said to have been called and that it was accepted at the rate of Rs.71/- for TC-I and Rs.69/- for TC-II. It is true that in the evidence of D.W.1 he claimed that there were subsequent negotiations whereunder the plaintiff is said to have been agreed for supply of sand for TC-I at the rate of Rs.69/- also, for which there is no plea or an understanding between the parties. 8. The point for consideration is, whether the plaintiff is entitled for the suit amount? 9. In-fact, it was not the plea of the defendant in the written statement that the amount was calculated at the rate of Rs.69/- in stead of Rs.71/-. In-fact, in the written statement, it is the claim of the defendant that after verification of the quality and quantity, the bills were prepared and a statement of account was said to have been furnished to the plaintiff. In-fact, Ex.A.25 is the copy of such statement and as can be seen from the letter Ex.B.12 which is a reply notice to the advocate for the plaintiff, it was specifically stated by the defendant that a statement of account is enclosed and the particulars of the deductions are noted thereunder. This letter is dated 24-10-1988. A copy of the same statement is marked as Ex.B.13, which corresponds to Ex.A.25. A perusal of both statements clearly go to show that from 05-07-1985 till 25-07-1986, all the supplies were taken into consideration under TC-I and TC-II and calculations were made at the rate of Rs.69/- for some supplies and at the rate of RS.71/- for some supplies. In-fact, in the statement of account filed by the defendant, for some of the supplies there was some difference in quantity due to calculation mistakes and the value has been deducted. Therefore, when such clear statement was given by the defendant and when there is a difference in the quantity claimed by the plaintiff and accepted by the defendant, after verification the present claim of the plaintiff that rate was not paid as agreed upon cannot be taken into consideration. In-fact the lower Court has not taken into consideration the case of the plaintiff that on the basis of the pleadings in the written statement and furthermore even from the own conduct of the plaintiff after receipt of Ex.A.10, no further notice was given to the defendant disputing the correctness of the accounts or the deduction of the quantities. In-fact, when the amounts were paid as final settlement also no objection was raised. Therefore, the claim of the plaintiff that the rates as agreed upon for TC-I is not paid is not reflected as per the accounts filed before the Court by the defendant. To substantiate the claim of the plaintiff on the basis of the calculations of difference, no other statement of account was filed by the plaintiff. 10. Therefore, taking into consideration the above fact, the claim of the plaintiff based on difference of the rate cannot be taken into consideration. However the counsel for the appellant submits that the value of the metal worth Rs.8,809.32 ps was not paid. But as can be seen from the plaint, there was no claim for that amount separately but it is stated it included in the original claim. As can be seen from item no.20 of the statement of account, bill No.27 and 28 are referred and supply was claimed at 99.65 metric tonnes. The amount was not accepted showing that there is reduction in quantity and it was disallowed. The learned counsel for the appellant submits that there is no material evidence to show the reduction of the quantity or the value thereof and even if there is to be some difference, it cannot be so huge. The bills clearly show the above claim. Therefore, in view of the above circumstances, I find that the plaintiff will be entitled for a sum of Rs.7,772.92 ps as per the bills 27 & 28, which were disallowed. 9. With the above modification, the decree of the lower Court is to be confirmed. 10. Accordingly, the City Civil Court Appeal is allowed in part and apart from the refund of the E.M.D as ordered by the lower Court, the plaintiff will be entitled for a further sum of Rs.7,772.92 ps with interest at 6% p.a., from the date of suit till the date of realisation. Each party do bear their own costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO 18th March, 2011 VJL