1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 66/2006 1. State of Goa, represented by the Executive Engineer, Works Division-VII, Goa Tillari Irrigation Development Corporation, Dhargal, Pernem, Goa. 2. State of Goa, represented by Chief Secretary, Panaji-Goa. ........ Appellants. V/s. 1. M/s Parwani Builders, a registered partnership having its office at 262, Rani Laxmi Nagar, Nagpur (Mah.) 440 022. 2. Bank of Maharashtra, Darampeth, Nagpur (Maharashtra) (PIN Code not known). ........ Respondents. Mr. Guru Shirodkar, Government Advocate for the appellants. Mr. C. Mascarenhas, Advocate for respondent No.1. CORAM :- F.M. REIS, J. Date :- 9th March, 2011. 2 ORAL J U D G M E N T : 1. The above appeal challenges the impugned Judgment and Decree dated 18th December, 2004, passed by the learned District Judge, at Panaji in Civil Suit No. 185/2004. 2. Briefly, the facts of the case are as follows : Respondent No.1/plaintiffs filed a suit for declaration and permanent injunction with regard to the invocation of the Bank Guarantee issued in favour of the appellant/defendants in the said suit. In the said suit, whilst filing the written statement, the appellant/defendant No.1 raised a counter claim, inter alia, claiming that the respondent/plaintiffs were liable to pay a sum of Rs.6,16,467/- along with interest thereon. Written statement to the said counter claim was also filed. The counter claim was amended pursuant to the orders of the Court. During the pendency of the said suit, arbitration proceedings were also initiated at the instance of the respondents. It is contended that the appellants/defendant no.1 had raised a similar counter claim before the learned arbitrator. The arbitration proceedings had been disposed of, but according to the appellants, the 3 counter claim was not maintainable, as the counter claim was already pending adjudication before the learned District Judge. After arbitration proceedings concluded, the learned District Court proceeded to adjudicate the counter claim in the said suit by recording of evidence, whereby both the parties led evidence in respect of their respective contentions with regard to the counter claim. The learned Judge by the impugned judgment and decree dated 18th December, 2004, dismissed the counter claim filed by the appellants. 3. Shri Shirodkar, learned Government Advocate appearing for the appellants has assailed the impugned judgment and pointed out that the contentions raised in the counter claim have not at all been considered by the learned Judge whilst passing the impugned judgment. Learned Counsel took me through the impugned judgment and pointed out that there is no appreciation of evidence at all with regard to the claim of the appellants in respect of the counter claim. Learned Government Advocate further pointed out that it is the contention of the appellants that there was an excess payment made by the appellants to the respondent No.1 by mistake, which was sought to be recovered by the counter claim. The learned Counsel further submitted that the impugned judgment has been passed on irrelevant 4 consideration, as the question of there being any estoppel on the part of the appellant would not arise. The learned Counsel took me through the notes of evidence and pointed out that the excess payment was effected to the respondent No.1 which the appellants were entitled to recover from the respondent. 4. On the other hand, Shri C. Mascarenhas, learned Counsel appearing for respondent No.1 supported the impugned judgment. Learned Counsel, however, fairly conceded that there are no appreciable reasons given by the learned Judge whilst passing the impugned judgment rejecting the counter claim on the basis of the submissions advanced by both the parties. Learned Counsel further submitted that when similar counter claim was raised before the arbitrator, the question of proceeding with the recording of evidence did not arise at all. Learned Counsel further submitted that the whole exercise done by the learned Judge in proceeding to record the evidence is superfluous as the learned Judge did not have jurisdiction to decide the counter claim, as the arbitration proceedings had already been concluded. To a pointed query to the learned Counsel as to whether all contentions have been considered by the learned Judge while passing the impugned judgment, learned Counsel fairly conceded 5 that though such reasons are not found in the impugned judgment, but, however, according to him, the same can be considered by this Court while deciding the above appeal. 5. Having heard learned Counsel and on perusal of the record, I find that the Government Advocate Shri Shirodkar is justified in his contention that the learned Judge has not appreciated the evidence brought on record, nor scrutinized the material brought by the parties to ascertain as to whether the appellants were entitled for the relief claimed in the counter claim. So also the contention of the respondent to the effect that the counter claim itself was not maintainable in view of the provisions of Order II, Rule 2 of the Code of Civil Procedure has also not been considered by the learned Judge while passing the impugned judgment. The learned Judge has not at all addressed to the contentions raised by the respective parties, nor the material adduced by the parties on record with regard to their respective claims. As no adequate reasons have been given whilst disposing of the said suit, I find that the impugned judgment cannot be sustained and deserves to be quashed and set aside. The matter deserves to be remanded to the learned Judge to decide the counter claim afresh, after hearing both the parties, in accordance with law. 6 6. In view of the above, I pass the following: O R D E R (i) The appeal is partly allowed; (ii) The impugned judgment and decree dated 18.12.2004 is quashed and set aside. (iii) Civil Suit No.185/2004 (new) is restored to the file of the learned Addl. District Judge, Panaji. The learned Addl. District Judge is directed to decide the counter claim afresh, after hearing both the parties, in accordance with law. All contentions raised by both the parties are left open. (iv) Parties are directed to appear before the Court of learned Principal District Judge, North Goa, Panaji on 11th April, 2011, at 10 a.m. and abide by its further directions. The appeal stands disposed of accordingly, with no order as to costs. F.M. REIS, J. ssm.