1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. Civil First Appeal No.193/1992 (The State of Rajasthan & Others Versus Shri Sita Ram Choudhary) Date of Judgment :: 11th February, 2009 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Ms. Priyanka Pareek, Deputy Government Counsel for the appellants Mr. R.K. Agarwal for the respondent BY THE COURT: The defendants have preferred this regular first appeal under Section 96 of the Code of Civil Procedure against the impugned judgment and decree dated 25th November, 1991 passed by Additional District Judge No. 6, Jaipur City, Jaipur in Civil Suit No. 33/81 (57/89), whereby the trial court partly decreed the suit of plaintiff-respondent for declaration, permanent injunction and recovery of the amount to the extent of Rs. 73,212/- with interest @ 6% per annum. 2. Briefly stated the facts of the case are that the plaintiff-respondent filed a suit for declaration, permanent injunction and recovery of a sum of Rs. 1,15,021.60 paise 2 against defendants-appellants in the Court of District Judge, Jaipur City, Jaipur which was transferred for disposal to the Court of Additional District Judge No.6, Jaipur City, Jaipur, wherein it was pleaded that defendant no. 4 invited tenders on 20th June, 1978 for construction of public road. The tender of plaintiff was accepted. The work was to be completed during the period from 7th October, 1978 to 6th October, 1979. The defendants did not give lay out plan nor vacant possession of the land in dispute for raising construction. The material of earlier contractor was lying at the spot which was not removed. The land had not been acquired and due to protest of agriculturists, the lay out plan was not supplied by defendants to petitioner. The demarcation was not done by the defendants at the spot. The plaintiff wrote a letter and reminder thereafter to the defendant no.4 to make available the lay out plan and to remove the material of earlier contractor and to demarcate the actual place / land, where road is to be constructed, but no heed was given by them and all of a sudden they served a notice in January, 1979 upon the plaintiff and thereafter vide order dated 28th March, 1979, 3 imposed a penalty and forfeited the amount of security deposited by the plaintiff. The amount of penalty was recovered from the amount belonging to plaintiff relating to other contracts. The defendants have deducted a sum of Rs. 31,003.10 paise and further a sum of Rs. 50212.00; total a sum of Rs. 81,215.10, which were wrongly deducted and plaintiff is entitled to recover the same. The plaintiff is further entitled to receive a sum of Rs. 23,806.50 paise towards the loss of profit, therefore, plaintiff is entitled to a decree of declaration, permanent injunction and recovery of the amount. 3. The suit was contested by defendants by filing written statement, wherein contents of the plaint were denied and it was pleaded that plaintiff did not start his work within time and in these circumstances, there was no alternative left with the defendants except to forfeit the amount of security and to impose penalty on the plaintiff. 4. On the basis of pleadings of the parties, the learned trial court framed 17 issues, which are reproduced in the impugned judgment passed by the trial court. The plaintiff examined PW-1 Sita Ram, PW-2 Jagmohan 4 Lal, PW-3 Bihari Lal, PW-4 Sardara Ram and also produced documentary evidence. The defendants examined DW-1 K.S. Mathur, DW-2 Radhey Shyam Gupta and DW-3 Inderjeet. The trial court, after considering all the issues in detail, decreed the suit of the plaintiff for a sum of Rs. 73,212/- and also awarded interest on the decreetal amount @ 6% per annum from the date of filing of the suit. It was also declared that the order of penalty passed by defendants is null and void and defendants were further restrained from recovering the disputed amount from any amount of other contract of the plaintiff. 5. The learned counsel for the appellants contended that although the trial court has framed 17 issues, but main issues in the present case are issues no. 1 and 2. The trial court has committed an illegality in deciding both the issues against the defendants. It was contended that it was the duty of the plaintiff to start the work of contract within time and to complete the same before October, 1979, but the work was not started and in these circumstances the contract was rightly cancelled and amount of penalty was rightly recovered from the amount of the plaintiff 5 belonging to other contracts, therefore, the impugned judgment and decree passed by the trial court is liable to be set-aside and the suit of the plaintiff be dismissed. 6. Per-contra, learned counsel for the plaintiff-respondent contended that plaintiff was always ready and willing to perform his contract and he wrote a letter from time to time to the defendant no.4 to supply the lay out plant, to demarcate the place, from where the road is to be constructed and to remove the raw material belonging to earlier contract, but neither lay out was supplied nor earlier raw material of another contractor was removed, therefore, he could not start the work. It was further contended that the land in dispute on which the road was to be constructed, was not even acquired and land holders did not allow the defendants to demarcate the land. The land was acquired on 5th February, 1980 and award was passed in 1983. This fact was admitted by the defendants' witnesses in the Court and in these circumstances the trial court has rightly decided the issues in favour of the plaintiff and no interference in the said finding is called for. 7. I have considered the submissions of 6 learned counsel for the parties and examined the impugned judgment as well as the record of the trial court. The trial court has decided all the issues in detail and after considering the oral and documentary evidence, the issue no. 1, 2, 3 and other issues nos. 8 to 13, 15 and 17 have also been decided in detail. The trial court has referred the statement of PW-1 Sita Ram, plaintiff, who stated that he requested the Department to supply him lay out plan, the design, the demarcation on the road side and to remove the material of earlier contractor Radha Kishan, but they did not give any heed on the request of the plaintiff. The Department was supposed to supply the raw material of Devrala Mine, but in fact there was no raw material available with the said mine and he requested to supply the raw material of other mine, but the same was also not supplied nor he was allowed to bring the other raw material. He wrote letter in this regard, which were placed on record as Ex.-2 the letter written to Executive Engineer, Ex.-3 the another letter, the third reminder is Ex.-4. Thereafter letter was also written to Superintendent Engineer, which is marked as Ex.-5 and letter / reminder was also sent to 7 Chief Engineer, a copy of which was marked as Ex.-6 and ultimately he served a notice on the defendants, which was marked as Ex.-7. The defendants in their statement stated that they gave notice to the contractor plaintiff to start the work, but he did not start the work. The trial court has referred the statement of DW-1 K.S. Mathur, DW-2 Radhey Shyam Gupta, DW-3 Inderjeet. DW-1 K.S. Mathur, in his statement stated that on 5th October, 1978 he was not posted at Jhunjhunu. When he joined there, the work of the plaintiff had already been withdrawn, therefore, his statement does not help the defendants in any manner. DW-2 Radhey Shyam Gupta stated that the number of notices were given to the contractor to start the work, but not a single notice or letter has been placed on record to corroborate the oral testimony. DW-3 Inderjeet stated that plaintiff did not come to take lay out plan, whereas from the statement of PW-1, it is clear that he requested the Department to supply the same and in this regard he also gave number of letter and reminders to all the respondents. In these circumstances, the issue no. 1 was rightly decided in favour of the plaintiff and against defendants and it was rightly held that it was 8 the duty of the defendants to acquire the land and to supply the lay out plan at the spot, therefore, the defendants are liable to breach of contract. While deciding issue no.2, the trial court rightly held that the defendants wrongly imposed penalty and liquidated damages on the plaintiff. While deciding issue no.3, the trial court recorded a finding that DW-3 Inderjeet specifically admitted that in the year 1983, the payment of compensation in respect of disputed land was made to the agriculturists. Ex.-11 was placed on record by plaintiff, which is relevant and material for adjudication of the present case. The tender was invited and accepted in the year 1978 and period of contract was from 7th October, 1978 to 6th October, 1979, whereas the lay out plan could not be supplied for the reason that there was obstruction from side of land holders as their land had not been acquired and no compensation had been paid to them. From the copy of the award dated 18th January, 1983 Annexure-11, it is clear that first time a request was made for acquisition of the land vide letter dated 3rd July, 1979 and thereafter the proceedings were initiated under Section 4 (1) of the Land Acquisition Act, 1953. This 9 document further makes it clear that land holders were raising objections and putting the obstruction on the action of defendants for constructing road on their land without acquiring the same and without payment of compensation of their land to them. In these circumstances, it is clear that learned trial court was fully justified in deciding issue no. 1, 2, 3 in favour of the plaintiff and against defendants. So far as amount of recovery is concerned, the trial court while deciding issue no. 8 to 13, 15 and 17 has discussed in detail and has recorded a finding that plaintiff is entitled to a sum of Rs. 73,212/- only and he is not entitled for remaining amount. The said finding was given on the basis of statement of defendants' witness K.S. Mathur, DW-1. In these circumstances, the finding of the trial court is not only based on plaintiff's evidence, but it is based on admission of defendants also. 8. After considering all the facts and circumstances and the submissions of learned counsel for both the parties, I am of the view that trial court has rightly decreed the suit of plaintiff-respondent and the same does not call for any interference by this Court. 9. In view of above discussion, I do not 10 find any merit in this appeal and the same is, accordingly, dismissed with no order as to costs. (NARENDRA KUMAR JAIN),J. DK