R.S.A.No.3845 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 11496-C of 2008 and R.S.A.No.3845 of 2008 Date of Decision:28.11.2008 State of Punjab and others .....Appellants. versus M/s Virindra Builders and another .....Respondents. CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL. Present: Ms. Nidhi Garg, AAG, Punjab for the appellants. **** AJAY KUMAR MITTAL, J. The present regular second appeal filed by defendant No.1 to 3 is directed against the judgment and decree dated 27.11.2007 passed by the lower appellate Court affirming that of the trial Court dated 21.12.2005 whereby the suit of the plaintiff for recovery, was decreed. Brief facts of the case are that defendants No.1 to 3 floated a tender for the supply of material and LBM of 75 mm compacted thickness with crushed stone/hand broken aggregates as per specifications providing graded P.C. after mixing aggregate and bitumen in Hot Mixed Plant (HMP) on Baghpurana-Nathana Road KM No. 1.163 to KM 23.60 upto Bhagta Bhaika for Rs.216 lacs which was allotted to the plaintiff firm. It was pleaded that defendants No.2 and 3 did not agree to three terms of the tender and revised rates were asked which were again submitted but again two terms of the tender were R.S.A.No.3845 of 2008 -2- changed by the defendants though the same were not according to the tender. The said terms were not revised by the plaintiff-firm as they were not bound to do so. It was further pleaded that plaintiff quoted the rates in accordance with the quantities and items mentioned in the NIT and the rates mentioned at item No.3 were without tack coat as the same was under item No.1 and, therefore, no undertaking or consent was given by the plaintiff. According to the plaintiff-firm, the defendants at their own reduced the limit from one year, as mentioned by the plaintiff, to four months without his consent, whereas the plaintiff agreed to six months. Further, the bitumen was to be supplied at Baghapurana Plant whereas defendants No.2 and 3 wanted the supply at Faridkot Store. Therefore, the tender fell through without any fault of the plaintiff. Thereafter, the tender submitted by the plaintiff modifying the rates and conditions was not accepted by the defendants and the plaintiff vide letters dated 6.8.1999, 6.10.1999 and 15.12.1999 conveyed to the defendants about the non-acceptance of the new rates which the defendants wanted to impose. Thereafter, defendant No.3 levied penalty of Rs.4.32 lacs vide letter dated 13.1.2000 and forfeited the security amount of Rs.4.32 lacs deposited by the plaintiff without any basis and illegally. Despite issuance of notices/letters, the defendants did not refund the security amount which gave rise to the filing of the suit for a recovery of Rs.4,32,000/- along with costs and the interest accrued thereon. The averments of the plaintiff were controverted by defendants No.1 to 3 by filing a joint written statement and raising various preliminary objections therein. It was pleaded that the tender R.S.A.No.3845 of 2008 -3- fell due to the fault of the plaintiff. As the plaintiff failed to execute the work and due to that the defendants had already suffered a lot, for which the plaintiff was liable to compensate. It was further pleaded that the dispute was to be referred to the Arbitrator but the plaintiff did not take any step in that regard. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. From the pleadings of the parties, the trial Court framed various issues and on appreciation of the oral as well as the documentary evidence adduced by the parties held that since the defendants had failed to prove that they had suffered damage or loss due to non-execution of work by the plaintiff as per the alleged tender, they were not entitled to retain the amount or forfeit the same by way of penalty. The plaintiff was further held entitled to the interest as the defendants had retained its amount illegally. The trial court further held that the suit was filed within limitation. Accordingly, the trial court vide judgment and decree dated 21.12.2005 decreed the suit of the plaintiff for recovery of Rs.4,32,000/- along with interest at the rate of 6% per annum from the date of deposit of the security till the realization of the said amount. Defendants No.1 to 3 were held liable jointly and severally to refund the security. Feeling aggrieved, defendants No.1 to 3 took the matter in appeal and the lower appellate Court vide judgment and decree dated 27.11.2007 affirmed the findings recorded by the trial Court and dismissed the appeal. Hence, the present regular second appeal. The solitary contention raised on behalf of the defendant- appellants is that the suit is barred by time as the security was R.S.A.No.3845 of 2008 -4- deposited on 18.5.1999 whereas the suit was filed on 7.1.2003. I have heard learned counsel for the appellants and have perused the impugned judgments with her assistance. I do not find any force in the submission of the learned State counsel. It is not in dispute that the defendants-appellants had forfeited the security on 12.1.2000 and, therefore, the cause of action accrued from the said date and the suit could have been filed within a period of three years from the date of forfeiture of the security. Therefore, the courts below had rightly held that the suit which was filed on 7.1.2003 was within limitation. No illegality and perversity could be pointed out by the learned counsel for the appellants in the concurrent findings of fact recorded by the Courts below which may warrant interference by this Court in the regular second appeal. No question of law much less a substantial question of law arises in this appeal for consideration of this Court. In view of what has been stated above, the present appeal fails and the same is hereby dismissed with no order as to costs. There is a delay of 263 days in filing the appeal. Since the appeal has been dismissed on merits, no separate order is being passed on the application for condonation of delay in filing the appeal and the same is disposed of as such. November 28, 2008 (AJAY KUMAR MITTAL) gbs JUDGE