1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 2 OF 2000 1. Mormugao Municipal Council Through its Chairperson, Municipal Building, Vasco-da-Gama. 2. The Chief Officer, Mormugao Municipal Council, Municipal Building, Vasco-da-Gama. ... Appellants versus Shri V. V. P. Nair, Major, Businessman, House No.95, Main Road, Bordem, Bicholim-Goa. ... Respondent Shri S. D. Padiyar, Advocate for the Appellants. Shri D. Pangam, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 24TH MARCH, 2009. ORAL JUDGMENT This appeal is directed against Judgment/Decree dated 17-7-1999 of the learned Civil Judge, Senior Division, Vasco-da-Gama, by which the suit 2 filed by the Respondent/Plaintiff has been decreed in the sum of Rs.1,80,000/- with pending and future interest at the rate of 24% per annum. 2. There is no dispute that the Respondent/Plaintiff was a labour contractor who pursuant to a tender published by the Appellants/Defendants for removal of garbage and subsequent work order dated 15-1-1996, was allotted the work of removal of garbage from I.O.C. tank to St. Andrew Church and Railway Station to Bar Oasis in a vehicle belonging to Appellants/Defendants and to be taken to their disposal yard. The said work order/agreement was for a period from 16-1-1996 to 15-4-1996. Claiming that the Plaintiff had carried out the said work in terms of the said agreement, for which the Plaintiff was not paid, the Plaintiff filed the said suit for recovery of the said amount with interest at the rate of 24%. 3. The Appellants/Defendants contested the suit on two grounds, namely, that the work of the Plaintiff was not satisfactory and the contract given to the Plaintiff was terminated by letter dated 18-3-1996. The learned trial Court framed several issues and the Appellants/Defendants examined two witnesses in support of their defence but it appears that at the time when the suit came for final disposal the Defendants chose not to advance any oral or written arguments and as such the suit was decreed against the Defendants. 4. There is also no dispute that an agreement in terms of the works order was written down by the parties but was not executed by anyone of them. 3 5. The Defendants plea that the agreement with the Plaintiff was terminated by letter dated 15-3-1996 has been considered by the learned trial Court observing that the Defendants had failed to prove by cogent evidence that the said letter dated 16-3-1996 was in fact delivered to the Plaintiff and further observing that the Defendants had not produced any correspondence that the Plaintiff was informed that the contract was terminated. On the contrary, the Plaintiff had stated that the Plaintiff had not received the said letter nor he was informed by any other person and that he had no supervisor by name Mohiddin. As far as the plea of termination of contract by the said letter dated 16-3-1996 is concerned, such a plea was not taken by the Defendants in their written statement and therefore no evidence in support thereof could have been looked into by the learned trial Court. It is well settled principle of law that no amount of evidence can be taken into consideration in support of a plea which is not taken. In this view of the matter also, the plea that the agreement was terminated by the said letter dated 16-3-1996 could not have been accepted. 6. As far as the plea that the work of the Plaintiff was not carried out satisfactorily, it may be noted that the Defendants main witness who is a Sanitary Inspector had admitted that he was responsible for daily supervision of garbage clearing work and that he had inspected the area, for the removal of garbage by the Plaintiff, from 16-1-1996 till 31-1-1996 regarding which first bill was submitted by the Plaintiff, and for the said period he had not made any report to the Defendants about the unsatisfactory work done by the Plaintiff for removal of 4 garbage. He had further admitted that he had also visited the said area for the period from 1-2-1996 to 18-3-1996, and during this period also he had not made any reports to the Defendants about the removal of garbage by the Plaintiff. Not only that the said Sanitary Inspector Shri Nigalye had also admitted that he had issued a certificate on the reverse of bill, including the bill dated 25-3-1996 which was for the period from 16th to 24th March, 1996 that the contractor had removed the garbage. This bill dated 25-3-1996(Exh.DW2 colly.) also disproves the plea of the Defendants that the work was not done by the Plaintiff, satisfactorily. In case the work being carried out by the Plaintiff was unsatisfactory the said Sanitary Inspector would have certainly made a note and not approved any of the said bills. In the circumstances, therefore, the Defendants contention that the removal of the garbage work was not carried out by the Plaintiff satisfactorily has been rightly rejected by the learned trial Court. The Plaintiff had categorically stated that he had continued to remove the garbage as per the contract, and had submitted his bills, the last bill being of 15-4-1996. Once it is held that the Defendants pleas that the Plaintiff's work was unsatisfactory or that the contract was terminated on 18-3-1996 could not have been accepted then the Defendants were bound to pay to the Plaintiff for the work done at the rate of Rs.2000/- per day which works out to Rs.1,80,000/- and which amount the learned trial Court was fully justified in decreeing in favour of the Plaintiff. 7. The learned trial Court had also decreed the suit with interest at the rate of 24% per annum from 16-4-1996 till final payment. Learned Counsel on 5 behalf of the Plaintiff submits that the agreement was in possession of the Defendants and as the said agreement was not produced by the Defendants and therefore an adverse inference ought to have been drawn against the Defendants, and the rate claimed by the Plaintiff at 24% ought to be decreed. Learned Counsel further submits that the Defendants were required to pay to the Plaintiff Rs.1,80,000/- in the year 1986, and since then the value of money has gone down and that had also to be taken into consideration whilst awarding interest. Learned Counsel on behalf of the Defendants submits that appropriate rate to be awarded to the Plaintiff is 6%. 8. There is no doubt that the Plaintiff claimed in the suit, interest at the rate of 24% from 16-4-1996 till payment but without any justification for such a high rate of interest nor justified the same in his evidence before the Court. The suit was for money due to the Plaintiff on account of the work done by him and as such it could not be termed as a claim arising of a commercial transaction. That being the position, the rate of interest which the Plaintiff could be entitled to is not more than 6% which is accordingly hereby granted to the Plaintiff thereby modifying the Judgment/Decree. Except for the said modification as regards interest, I find there is no merit in this appeal and consequently the same is hereby dismissed. The Plaintiff therefore would be paid a sum of Rs.1,80,000/- at the rate of 6% from 16-4-1996 till the amount is deposited before the Court. Whatever interest is accrued thereafter on the said amount during the pendency of this 6 appeal shall be paid to the Plaintiff and the balance, if any, shall be returned to the Defendants. 9. Registry to calculate the amount in terms of this Judgment and pay to the respective parties. N. A. BRITTO, J. RD