IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :17.06.2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.No.1070 of 2003 and C.M.P.No.19370 of 2003 1.The Superintending Engineer, Tamil Nadu Water Supply and Drainage Board, Vellore District and Dharmapuri Circle, Gandhi Nagar, Vellore – 6. 2.The Executive Engineer, Tamil Nadu Water Supply and Drainage Board, R.W. Division-I, Gandhi Nagar, Vellore – 6. 3.The Executive Engineer, Tamil Nadu Water Supply and Drainage Board, R.W. Division-II, (Urban) Gandhi Nagar, Vellore – 6. ... Appellants/Defendants Vs. J.Varadhan ... Respondent/Plaintiff Appeal suit filed under Section 96 of Code of Civil Procedure, against the Judgment and Decree dated 27.6.2003 made in O.S.No.1 of 2002 (Vellore Sub Court O.S.No.305/96) on the file of the Additional District and Sessions Judge (Fast Track Court), Vellore. For Appellants : Mrs.Sudharshana Sunder For Respondent : No appearance JUDGMENT The Appellants/Defendants have projected this present Appeal against the Judgment and Decree dated 27.06.2003 in O.S.No.1 of 2002 (on the file of Sub Court, Vellore O.S.No.305/96) on the file of the Additional District and Sessions Judge, (Fast Track Court), Vellore. 2.The trial Court, in its Judgment, on an appreciation of oral and other documentary evidence available on record, has, inter alia, observed that 'the Respondent/Plaintiff is not entitled to a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.8,34,900/- (Rupees Eight Lakhs Thirty Four Thousand and Nine Hundred only) as claimed in the Pliant and it has not accepted the claim of Rs.1,07,375/- made by the Appellants/Defendants as if a counter claim and held that the Appellants/Defendants are still to pay a sum of Rs.88,159/- to the Respondent/Plaintiff. Accordingly, it partly decreed the suit for a sum of Rs.88,159/- in favour of the Respondent/Plaintiff directing the Respondent/Plaintiff to receive interest for the aforesaid sum at 9% per annum from the date of filing of the suit till the date of passing of the decree and thereafter, at 6% per annum till the date of realisation. Moreover, the Respondent/ Plaintiff has been directed to pay the required Court Fee.' 3.Before the trial Court, 1 to 7 issues have been framed for adjudication in the main Suit. On the side of the Respondent/Plaintiff, witness P.W.1 (Respondent/Plaintiff) has been examined and Exs.A.1 to A.29 have been marked. On the side of the Appellants/Defendants, witness D.W.1 has been examined. Exs.B.1 to B.50 have been marked. 4.Being aggrieved against the Judgment and Decree passed by the trial Court in the main suit, the Appellants/Defendants have filed the present Appeal before this Court. 5.The Points that arise for rumination in this Appeal are: (1)Whether the Respondent/Plaintiff has completed the 13 project works? (2)Whether the Respondent/Plaintiff is entitled to receive a sum of Rs.8,34,900/- as balance amount from the Appellants/ Defendants with interest? (3)Whether the suit suffers on account of non-issuance of notice as per Section 80 of Civil Procedure Code? (4)Whether the suit is barred by limitation? (5)Whether the trial Court has jurisdiction to entertain the suit? (6)Whether the Appellants/Defendants are entitled to claim the compensatory cost from the Respondent/Plaintiff? The Contentions,Discussions and Findings on Point Nos.1 and 2: 6.The Learned Counsel for the Appellants/Defendants that the trial Court has failed to note that inasmuch as the Respondent/Plaintiff has not completed the 13 project works as agreed, he is not entitled to claim a sum of Rs.8,34,900/- with future interest and costs. https://hcservices.ecourts.gov.in/hcservices/ 7.According to the Learned Counsel for the Appellants/ Defendants, the trial Court has not taken note of the fact that due to non commencement of Kilarasambattu Water Supply Scheme, the Board has suffered a loss of Rs.1,07,375/- by granting the same to another contractor. Moreover, the Appellants are entitled to recover a sum of Rs.1,07,375/- as per Agreement and Departmental Rules. 8.It is the contention of the Learned Counsel for the Appellants that the trial Court failed to take into account that from the inception of agreement, the Respondent/Plaintiff has not co-operated and further has not completed any of the works entrusted to him. Further, he has not returned the unused materials supplied by the Department when the work has been in progress. 9.The Respondent/Plaintiff, in the Plaint, has averred that he was one of the Approved Contractors of Tamil Nadu Water Supply and Drainage Board for North Arcot Ambadkar District & Dharmapuri Circle, for over 15 years. His tender for 13 works for Puttutaku Arapakkam, Kanikapuram and Naryanapuram pipe lines, Kilaiyanur (Chengam Union) Open well construction, Sekkadu Anaicut Union Open well construction, Muthurasikuppam (Sholinghur Union) Overhead tank, Paledaiyampatti (Kanniyambedi Union) Overhead tank and pipeline, Kangeyanellur (Katpadi Union) Sinking Well, WSS Poigai Mottur (Anaicut Union) Overhead tank and pipe line, WSS to Periyasekanur (Vellore Union) Overhead and Pipe line, WSS to Sathumadurai (Kanniyambedi Union) Overhead tank and pipe line, WSS to Nelvoi (Kanniyambadi Union) Overhead and pipe line, Thirupattur Drought Work (Infiltration Well) (Urban Work) and Thikkupattu Sandal Mill (Infiltration Well) (Urban work) were accepted and he executed the agreements in favour of the Appellants 2 & 3/Defendants 2 & 3 and completed the work. However, the final bill for the said 13 works were not paid inspite of repeated demands and registered notices. 10.The Respondent/Plaintiff in respect of 13 works has made the following claim mentioning that a total sum of Rs.8,34,900/- is due to be paid to him. They are as follows: "1.Puttutakku, Arapakkam, Kanikapuram & Naryanapuram, Arcot Union: Pipe line & Tap. Final Bill Rs.30,000-00 Interest at 12% p.a. From 10.7.1980 to 10.1.1995 Rs.52,200-00 ----------------------- Total Rs.82,200-00 ----------------------- https://hcservices.ecourts.gov.in/hcservices/ 2.Kilayanur, Chengam Union, Open Well Final Bill Rs.30,000-00 Interest at 12% p.a. From 18.10.1982 to 18.1.1995 Rs.43,800-00 ----------------------- Total Rs.73,800-00 ----------------------- 3.Sekkadu, Anaicut Union Construction of Open Well Final Bill Rs.25,000-00 Interest at 12% p.a. From 18.12.1982 to 10.1.1995 Rs.36,000-00 ----------------------- Total Rs.61,000-00 ----------------------- 4.Mutharasikuppam, Sholinghur Union, Construction of 30,000 litres O.H.T. Final Bills Rs. 5,000-00 Interest at 12% p.a. From 10.7.1984 to 10.1.1995 Rs. 6,300-00 ------------------------ Total Rs.11,000-00 ----------------------- 5.Palladayampatti, Kanniyambadi Union Laying & Jointing of pipe line, 60,000 litres O.H.T. Final Bills Rs.10,000-00 Interest at 12% p.a. From 4.11.1985 to 10.1.1995 Rs.11,000-00 ----------------------- Total Rs.21,000-00 ----------------------- 6.Kugayanallur, Katpadi Union, Internal, Infiltration Well Final Bill Rs. 50,000-00 Interest at 12% p.a. From 5.8.1996 to 10.1.95 Rs. 51,000-00 ------------------------ Total Rs.1,01,000-00 ------------------------ https://hcservices.ecourts.gov.in/hcservices/ 7.W.S.S. Poigai & New Colony, Ananicut Union Pipe line, 60,000 lts. O.H.T. Final Bills Rs. 50,000-00 Interest at 12% p.a. From 1.9.1988 to 10.1.1995 Rs. 38,000-00 ------------------------- Total Rs. 88,000-00 ------------------------- 8.W.S.S. To Poigai Mottur in Annaicut Union Pipeline, 30,000 lts. O.H.T. Final Bills Rs. 20,000-00 Interest at 12% p.a. From 31.12.1988 to 10.1.1995 Rs. 14,400-00 -------------------------- Total Rs. 34,000-00 -------------------------- 9.W.S.S. To Periyasekkanur, Vellore Union, Pipeline, 60,000 lts O.H.T. Final Bills Rs. 20,000-00 Interest at 12% p.a. From 17.9.1989 to 10.1.1995 Rs. 12,600-00 -------------------------- Total Rs. 32,600-00 -------------------------- 10.W.S.S. To Sathumadurai in Kanniyambadi Union Pipe line 60,000 O.H.T. Final Bills Rs. 40,000-00 Interest at 12% p.a. From 11.11.1989 to 10.1.1995 Rs. 24,400-00 ------------------------- Total Rs. 64,000-00 ------------------------- 11.W.S.S. To Nelvoy in Kanniayambadi Union Pipe line 60,000 Lts. O.H.T. Final Bills Rs. 40,000-00 https://hcservices.ecourts.gov.in/hcservices/ Interest at 12% p.a. From 12.6.1989 to 10.1.1995 Rs. 26,000-00 ------------------------- Total Rs. 66,400-00 ------------------------- 12.Thirupattur (Drought work) Infiltration Well Final Bills Rs. 70,000-00 Interest at 12% p.a. From 25.11.1985 to 10.1.1995 Rs. 76,300-00 ------------------------- Total Rs.1,46,300-00 ------------------------- 13.Thekkupattu sandal mill. Infiltration Well Final Bills Rs. 30,000-00 Interest at 12% p.a. From 18.9.1988 to 10.1.1995 Rs. 22,500-00 -------------------------- Total Rs. 52,500-00 -------------------------- Total amount due for 13 works Rs. 8,34,900-00 11.It is the stand of the Respondent/Plaintiff that inspite of repeated demands and registered notices, the Appellants/Defendants have not paid the due amount to him and he has filed the present suit for recovery of a sum of Rs.8,34,900/- along with future interest and cost of the suit. As per Final Bills, the Appellants/Defendants are liable to pay to the Respondent/Plaintiff a sum of Rs.8,34,900/- together with interest and costs for the 13 works. 12.The 2nd Appellant/2nd Defendant has filed the written statement which has been adopted by the Defendants 1 and 3. In the Written Statement, the 2nd Appellant/2nd Defendant has stated that it is true that the Respondent/Plaintiff was one of the Approved Contractors of the T.W.A.D. Board but was block-listed for his omissions and commissions. The 13 contract works mentioned in the Plaint were awarded to the Respondent/Plaintiff by the Board but none of the work was done by him properly. There is no amount due to the Respondent/ Plaintiff by the Appellants/Board and he himself is due to the Board a sum of Rs.19,216/-. The Appellants/Defendants, in the Written Statement at paragraph 7 to 20, have averred the following: "7.The first work viz. Poottuthakku, Arapakkam, Kannigahram and Narayanapuram Arcot Union pipe line and tap was awarded to the plaintiff and the value of the work was fixed at Rs.45,613/-. The plaintiff had done the work to the value of https://hcservices.ecourts.gov.in/hcservices/ Rs.46,480-36. Towards the said work done by him, a sum of Rs.44,636,60 was already paid to him by the Board. But the plaintiff had not returned materials worth Rs.11,867/- supplied by the Board to the plaintiff and also a sum of Rs.37/- as income tax and the total sum payable by the plaintiff to the Board thus comes to Rs.11,904/-. The Board is thus liable to recover a sum of Rs.10,060/- (Rs.11.904-1844) from the plaintiff. So in this work the plaintiff himself is liable to pay a sum of Rs.10,060/- to the Board. 8.The second work viz. Kilianur, Chengam Union Open well the work was awarded on 18.3.1982 to the plaintiff to the value of Rs.47,350/-. The plaintiff did not commence the work at all. Therefore the work was abandoned and there is no amount due to the plaintiff by the board. 9.The third work viz. Serkadu Anaicut Union Construction of open well. The work was awarded to the plaintiff on 2.7.1982 for the value of Rs.21,410/-. But the plaintiff had done the work to the value of Rs.36,410/- and a sum of Rs.34,649/- was already paid by the Board to the plaintiff and hence there is a balance of Rs.1761/- is due to the plaintiff by the Board. A sum of Rs.7/- is due for income-tax and therefore only a sum of Rs.1754/- is due to the plaintiff regarding the said work. 10.The fourth work viz. Mutherasikuppam Sholinghur Union construction of 30,000/- litres of overhead tank was awarded to the plaintiff for the value of Rs.32,911-02. The said work was completed by him and the final bill was paid to him on 19.4.1988 vide cheque No.13872 dated 19.4.1988. Therefore there is no amount due to the plaintiff in respect of the said work. 11.Regarding the fifth work viz. Pallacedayampati, Kaniyambodo Union laying of pipe line and over-head tank. The work was awarded to the plaintiff for the value of Rs.73,609-75. This work was also completed by him and the final bill was paid to him on 29.5.1987 itself vide cheque No.156482. Thus there is no amount due to the plaintiff under this item. 12.Regarding the sixth item viz.Kugainallur Katpadi Union. The work was entrusted to the plaintiff on 5.2.1986 for the value of Rs.65,353- 95 for construction of well. The work was completed by him and the final bill was paid to https://hcservices.ecourts.gov.in/hcservices/ the plaintiff on 29.5.1987 vide cheque No.156482. Thus there is no amount due to the plaintiff on the said work. 13.The seventh work cited in the plaint viz. Water Supply Scheme to Poigai and New colony in Anaicut Village. The work was awarded to the plaintiff on 1.2.1988 for the value of Rs.1,55,115-18. He executed the work for the value of Rs.1,54,706-51. A sum of Rs.1,23,079/- was already paid to the plaintiff and there is a balance of Rs.31,627/- to be paid to the plaintiff. In this work the plaintiff returned the materials supplied by the Board partly to the value of Rs.2,100/- and failed to return to the value of the Rs.4,752/-. A sum of Rs.503/- is due from him for payment of income tax and a sum of Rs.17/- is due towards storage. Therefore, a total sum of Rs.5272/- is due from the plaintiff under this work and a total amount due to him is Rs.33,727/- less the amount Rs.5272/- which comes to the net amount due to the plaintiff by the Board is Rs.28,455/-. 14.The 8th item viz. the water supply scheme to Poigaimottur in Anaicut Union. The work was awarded to the plaintiff on 31.5.1988 for the value of Rs.85,358-60. Towards the said work a sum of Rs.75,214/- was already paid to him and there is a balance of Rs.10,145/- is to him by the Board. He has also returned certain materials supplied by the Board to the value of Rs.857/-. Thus there is a total sum of Rs.11,002/- is due to the plaintiff by the Board. Further a sum of Rs.114/- is due as recovery for payment of income-tax. Therefore the net amount due to the plaintiff comes to Rs.10,888/-. 15.The 9th item viz. Water supply scheme to Perissekkanur in Vellore Union. The work was awarded to the plaintiff on 17.2.1989 for the value of Rs.1,55,115/-. But the plaintiff had done the work to the value of Rs.1,38,980/-. A sum of Rs.1,15,05/- was already paid by the Board to the plaintiff and there is a balance of Rs.23,975/- due to the plaintiff under this work. Recovery of income-tax of Rs.359/- the non return of materials to the value of Rs.14,302/- and a sum of Rs.600/- spend by the Board for arresting the leakage of over-head tank. Totaling Rs.15,261/- is to be deducted from Rs.23,975/- and there is a balance of Rs.8,714/- is due to https://hcservices.ecourts.gov.in/hcservices/ the plaintiff by the Board. This defendant submits that the plaintiff had left the said work unfinished. 16.The 10th item viz. Sethumadurai in Kaniyambadi Union laying of pipe line and over head tank. The work was awarded to the plaintiff for the value of Rs.1,87,455-03. The plaintiff left the work unfinished and also failed to turn up for check measurement and also to sign in the M books and bill forms in spite of number of reminders issued to the plaintiff at various levels. Hence the final bill was passed by the Department and a sum of Rs.27,89-/- is kept under other deposit in the Board. 17.Regarding the 11th item viz. Nelvoy water supply scheme in Kaniyambadi Union, the work was awarded to the plaintiff on 2.11.1989 for the value of Rs.1,54,983/-. In this work also the plaintiff did not complete the same and he left the work unfinished in the middle. The total value of work done by him was Rs.1,24,060/-. A sum of Rs.98,831/- was already paid to the plaintiff and there is a balance of Rs.25,229/- in which recoveries have to be made for a sum of Rs.13,500/- towards non return of materials. Rs.401/- towards the income-tax and Rs.600/- towards arresting of leakage, totaling Rs.14,501/-. Hence there is a balance of Rs.10,728/- is due to the plaintiff by the Board. 18.Under the 12th item viz. Tirupattur Drought Relief work. The work was awarded to the plaintiff for the value of Rs.1,59,369-74. The plaintiff had done the work to the value of Rs.164,413/- in which a sum of Rs.1,18,782/- was already paid to the plaintiff by the Board. In the balance amount of Rs.48,631/- a sum of Rs.25,177/- is due from him towards recoveries and hence a sum of Rs.23,454/- is due to the plaintiff by the Board under this work. 19.Under the 13th item viz. Thakkupattu Sandal Mill construction for the value of Rs.1,01,105.95. The plaintiff did the work to the value of Rs.98,895/-. A sum of Rs.85,938/- was already drawn by him from the Board and there is a balance of Rs.12,957/- is due to the plaintiff by the Board. The plaintiff is due to the Board towards recoverable under this work a sum of Rs.26,621/-. Thus the plaintiff himself is due to the Board a sum of Rs.13,664/-. https://hcservices.ecourts.gov.in/hcservices/ 20.In all the above 13 works entrusted to the plaintiff by the Board, a sum of Rs.88,159/- (approx.) is due to the plaintiff by the Board. Apart from the above said 13 works, another water supply scheme to Kilarasambattu in Kaniyambadi Union was entrusted to the plaintiff by the Board to the value of Rs.2,41,808.94 as per agreement No.10/90-91. But the plaintiff did not commence the work at all. The Dept. Waited for the more than a year and terminated the aid contract with a condition to recover the extra financial commitment from the running bill of the plaintiff. The Department is entitled to recover the loss which may occur in entrusting the work to another contractor as per the agreement and also departmental rules. Another tender was called and one V.K.Rangan's tender was accepted by the Board. The tender was accepted for a sum of Rs.3,49,183.61. The 2nd contractor V K Rangan completed the work. Therefore the department sustained a loss of Rs.1,07,375/- due to the lapses of the plaintiff and the said amount is recoverable from the plaintiff. Thus the plaintiff is due to the Board a sum of Rs.19,216 i.e. The plaintiff is due to the Board a sum of Rs.1,07,375/- and the Board is due to the plaintiff a sum of Rs.88,159/-." 13.P.W.1 (Respondent/Plaintiff), in his evidence, has deposed that he has been an Agreement Contractor with the Tamil Nadu Water Supply and Drainage Board for the past 15 years and for completion of 13 contract works, a contract has been given in his favour and as agreed, he has completed the 13 works for which he has not been given the full amount and only a balance amount has been paid to him. 14.It is the further evidence of P.W.1 that as per Agreement in places like Puttutakku, Arapakkam he has laid the pipeline for which he has been paid only a balance amount and a sum of Rs.30,000/- remains as an outstanding amount in this regard, for which 12% interest will have to be paid to him and he has claimed in all, together with interest a sum of Rs.82,800/-. Furthermore, the evidence of P.W.1 is to the effect that in Chengam Union at Kilayanur for construction of a well, a contract has been entered into and that he has completed the work, but as per contract, full amount has not been paid to him and that a sum of Rs.30,000/- is due to him and with an interest at 12% per annum a sum of Rs.73,800/- is liable to be paid to him. In Anaicut Union, Serkkadu Village he has worked in an open well for which full amount has not been paid and the said amount together with interest of Rs.25,000/- aggregating in all a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.65,000/- is due to be paid to him. 15.P.W.1's evidence also speaks to the effect that he has completed the 13 contract works for which he has not been paid the full amounts by the Appellants/Defendants and he is not in possession of the materials belonging to the Appellants/Defendants and before filing of the suit he has given Exs.A.1 and A.10 notices for which no reply has been received. 16.P.W.1, in his cross examination, has deposed that he has no accounts relating to the work performed by him and in the office, they will give a letter to him in regard to the contract work accepted by him and that the 13 contracts have been accepted and for which one of them they have given a letter and further some of the letters are available and some are not available. 17.P.W.1 proceeds to state in his evidence that in case of dispute the matter can be referred to Arbitration as mentioned in the agreement entered into by him and in regard to the laying of pipeline at Puttutakku, the agreement has been entered into in the year 1980 and he does not know in how many days the pipeline has to be laid as per agreement and at the time of tender, the work is for Rs.50,000/- and moreover, he does not know in how many days he has completed this work. 18.The evidence of P.W.1 is to the effect that he does not know to what distance he has laid the pipeline and he has completed half the job for which he has been paid the amount, but he does not remember as to the amount paid to him but all the payments have been made through cheques and in regard to the Puttutakku work how much amount remains to be paid to him, he does not know and he does not know that the place of work has been allotted to him on 11.6.81 and for a sum of Rs.45,613/- the agreement has been entered into and he has been given a cheque for Rs.44,636.60 paise which he has received. Further, it is the evidence of P.W.1 that it is wrong to state that the value of cement and iron rod to an extent of Rs.11,861/- have not been paid back to him and it is wrong to state that in respect of Puttutakku work, he himself due to pay a sum of Rs.11,904/-. 19.P.W.1, in his evidence, has stated that it is wrong to state that in respect of Puttutakku work, there is a balance of work amounting to Rs.10,400/- and in Kilayanur-Chengam Village for digging up a well an agreement has been entered into, but he has not been furnished with the agreement copy and after the year 1982-1983 for the aforesaid contract, an agreement has been entered into and in the said agreement, in how many days the work has been completed, it will be mentioned and at present, he is not remembering as to when he has finished the work, but it will be seen from the agreement. Added further, it is the further evidence of P.W.1 that since the well has https://hcservices.ecourts.gov.in/hcservices/ been dug on the river side and also because of the loose sand, the authorities have informed him that they will change the estimate but the same has been stopped and for this, he has not been paid the amount and that the authorities have come and seen the work done by him but they have not recorded the same. He cannot say in Kilayanur to what amount the contract has been entered into for digging the well and this can be seen from the records and the cement and iron rods have not been given to him and in respect of digging the well, a contract has been entered into on 18.3.82 for a sum of Rs.47,350/-. But he is not in possession of records pertaining to the work turned by him and the same has been received by the officers. 20.P.W.1 has deposed that in Serkadu he has been granted the permission to dig a well. But he does not know the date, year in which the contract has been entered into and that he is not in possession of the agreement and also he is not filed the same into Court. Continuing further, it is the evidence of P.W.1 that he is not in possession of the accounts in his hands and the bill has been given in favour of the party and further, he does not remember to what amount the bills have been given and to a suggestion whether he has accounts in respect of the suit amount, he has stated that at that time he has been in possession, later he has given the same for preparing the bill and he does not know on 2.7.89 a contract has been given for Rs.21,410/-. But the said contract will be for Rs.50,000/- and he does not remember that a sum of Rs.34,619/- has been paid by the Department to him and it is not correct to state that a sum of Rs.1,754/- is due to be paid to him and further, it is not correct to state that he has to pay a sum of Rs.7/- towards the income tax. The evidence of P.W.1 (in cross examination) is to the effect that