1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal NO. 150/2010 (Kirtikumarsingh Jawaharsingh Chauhan VERSUS The Simplex Mills Co. Ltd. & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Rohit Sharma h/f Shri Anand Parchure, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 19, 2010 . Heard. The appellant is the original plaintiff. A suit was filed by the plaintiff for recovery of an amount of Rs.67,000/- from the defendants-respondents with future interest. It was the case of the plaintiff that the plaintiff was appointed as a contractor by the respondent no.1 for the respondent no.2 for drilling bore-wells. In case the desired yield of water as agreed between the parties was received from drilling two bore-wells, the plaintiff was entitled to a sum of Rs.2,60,000/-. However, in case, the desired yield was secured from more than two bore-wells, an amount of Rs.2,85,000/- was payable to the plaintiff. The mode of payment was stipulated in the contract. An amount of Rs.1,50,000/- was payable to the plaintiff after initial yield test was done and desired yield was obtained after 24 hours of continuous 2 pumping. The balance amount was to be paid to the plaintiff after a final yield test of 72 hours of continuous pumping. The plaintiff was entitled to 20% of the value of the contract which was to be held by the defendant no.2 as security deposit for three months from the date of issuance of the completion certificate. According to the plaintiff, the defendant no.2 paid an amount of Rs.1,00,000/- to the plaintiff on 19.04.1997 and an amount of Rs.1,25,000/- on 07.05.1997. Since more than two bore-wells were dug, according to the plaintiff, the plaintiff was entitled to Rs.60,000/- more as the amount payable in that case was Rs.2,85,000/-. It is the case of the plaintiff that the defendant did not issue the completion certificate to the plaintiff on the ground that there was no need to do so as nearly 80% of the amount was paid to the plaintiff. The plaintiff pleaded that though a final yield test was carried out by the plaintiff, the defendants had stated that the same was not carried out as per the agreement. In such circumstances, the plaintiff claimed an amount of Rs.67,000/- along with future interest and costs. The defendants denied the claim of the plaintiff but, admitted the agreement dated 01.04.1997. It was specifically pleaded by the defendants that the plaintiff had 3 not obtained the completion certificate as per the contract and he was not entitled to file a suit. They denied that the plaintiff had carried out a final test as pleaded by the plaintiff. The defendants pleaded that water was not made available to the defendants from the three bore-wells dug by the plaintiff as per the contract. They pleaded that the plaintiff had also not submitted the final bill and the suit of the plaintiff was liable to be dismissed. The trial Court on an appreciation of the evidence on record, came to the conclusion that the suit of the plaintiff could be decreed as the plaintiff had received almost 80% of the amount payable in terms of the contract and that showed that the defendants had received the desired results from the bore-wells dug by the plaintiff. The trial Court held that the plaintiff was ready to conduct a third test also and hence, the trial Court decreed the suit of the plaintiff. The first appellate Court on a re-appreciation of the evidence on record, came to the conclusion that 20%of the value of the contract was to be held back by the defendant no.2 as security deposit for three months from the date of issuance of completion certificate. The first appellate Court held that the plaintiff had not received any completion certificate in this case. The first appellate Court then held 4 that the plaintiff had neither furnished a final bill to the defendant nor obtained the completion certificate from the defendant and, hence, was not entitled to seek a decree for Rs.67,000/-, in view of Clause (D) of the contract dated 01.04.1997. The findings of the first appellate Court are challenged in the second appeal. On hearing the learned counsel for the appellant and on perusal of the judgment along with the evidence of the plaintiff which forms a part of the memo of the first appeal, it appears that the first appellate Court did not commit any error in reversing the findings recorded by the trial Court on a re-appreciation of the evidence on record. The first appellate Court rightly considered the fact that the completion certificate was not obtained by the plaintiff from the defendants and the obtaining of the same was a condition precedent in terms of Clause (D) of the contract to receive 20% of the value of contract which was to be held back by the defendants towards security deposit. The first appellate Court gave due weightage to the agreement executed between the parties on 01.04.1997 and the clauses incorporated therein for holding that the plaintiff could not have sought the recovery of the amount of Rs.60,000/- towards the unpaid price for the work done by the plaintiff. The first appellate 5 Court considered the admission of the plaintiff in his cross- examination that he had not secured/obtained a completion certificate from the defendant that the desired yield of water was secured from the three bore-wells dug by the plaintiff for the defendants. The first appellate Court considered certain admissions of the plaintiff in his cross-examination to hold that the plaintiff was not entitled to get back any security deposit from the defendants merely because the plaintiff had received nearly 80% of the amount of the contract from the defendants when it was specially the case of the defendants that the plaintiff had not carried out the work as per the agreement at Exh.34 and they had not received the ground water (desired yield) as per the agreement. The judgment reported in 2001(2) Mh.L.J. 786 (Santosh Hazari Versus Purushottam Tiwari deceased by L.Rs)and relied on by the counsel for the appellant to substantiate his submission that the first appellate Court has not come into close quarters with the reasoning assigned by the trial Court, is liable to be rejected as the first appellate Court considered the relevant evidence on record and had read the same along with the agreement dated 01.04.1997 to consider whether the plaintiff was entitled to an amount of Rs.60,000/- in the absence of the issuance of a completion certificate. 6 It is necessary to note that the plaintiff had not sought a declaration that the defendants were liable to issue the completion certificate as he had carried out the work as per the agreement specially when it was the case of the defendants that the plaintiff failed to give the desired results to the defendants. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE