THE HON’BLE SRI JUSTICE K.C.BHANU APPEAL SUIT NO.1900 OF 1993 DATED: 19-10- 2010. Between 1.The Executive Engineer, Tribal Welfare Division, Parvathipuram And another … Appellants-Defendants And N.Seetharama Naidu …Respondent-Plaintiff THE HON'BLE SRI JUSTICE K.C. BHANU APPEAL SUIT NO.1900 OF 1993 JUDGMENT: This appeal is directed against the judgment and decree, dated 05-07-1993, in O.S.No.8 of 1991 on the file of the Subordinate Judge, Parvathipuram, whereunder and whereby the suit filed for recovery of money was decreed. 2. Appellants herein are the defendants and the respondent herein is the plaintiff in the suit. 3. The averments of the plaint in brief are as follows: The plaintiff entered into agreements with the 1st defendant for execution of the works at Parvathipuram and required deposits were also made as per rules. The plaintiff completed major part of the work i.e., up to 80% and the Deputy Executive Engineer, Tribal Welfare, Bhadragiri, took the measurements of the work done and entered the same in the Check Measurement Book. All the works done by the plaintiff are duly entered in the various check measurement books duly signed by the Assistant Executive Engineer and checked by the Deputy Executive Engineer and Supervised by the higher officials. While so, the plaintiff wanted to contest for Andhra Pradesh Assembly seat from Parvathipuram and as he shall not held any subsisting contract with the State Government, he requested the 1st defendant to finalize the works and settle the accounts and issue no subsisting contract certificate. The 1st defendant gave reply that he would settle the account at the earliest point of time. Accordingly, the 1st defendant sent no subsisting contract certificate on 30-10-1989. Even by 27-10-1989 all the measurements were taken and M. books were produced before the 1st defendant in order to finalize the issue and make necessary payments to the plaintiff. The 1st defendant neglected to finalize the matter and did not pay the amounts due to the plaintiff under various works. The 1st defendant is bound to make necessary payments after finalizing the accounts even by 30-10-1989. But still, the amount due to the plaintiff are not paid. The plaintiff got issued a notice under Section 80 CPC on 25-01-1990 and the defendants received the same. As the defendants failed to pay the due amounts in spite of demands, the plaintiff filed the suit. 4. The 2nd defendant filed written statement, which was adopted by the 1st defendant. The defendants denied the averments in the plaint. It is stated that the plaintiff could not complete the works within the time stipulated and delayed the same and incurred all the displeasure and disqualification to proceed with the work further entitling the 1st defendant for the termination of contracts. At this juncture, the plaintiff wanted to contest for the election and requested the 1st defendant to issue no subsisting contract certificate, which is condition precedent to contest the elections. The 1st defendant out of good will and generosity immediately issued no subsisting certificate to enable the plaintiff to file his nomination. But the payments due to the plaintiff could not be made urgently for want of check measurements, revised administrative sanction and approval of the work estimates by the Superintending Engineer, Tribal Welfare and sanction of time extension proposals by the Chief Engineer, Tribal Welfare. The said fact was intimated to the plaintiff. The plaintiff having achieved his object of getting no subsisting contract certificate, filed the suit in a hasty manner knowing fully well about the formalities and the administrative procedure to be followed for making the payments. The plaintiff approached the 1st defendant on 25-05-1991 and requested for payment due to him and to make payments of the additional security deposit of 2 ½ % along with final payments. The 1st defendant made final and full payment to the plaintiff on 30-05-1991 with specific amounts under 5 different agreements through a cheque, dated 30-05-1991. The total amount there under is Rs.1,00,835/-. Thus the entire amount due to the plaintiff was paid to him on 30-05-1991 as per the work done. The plaintiff having accepted the same towards final payment cannot maintain the suit and the suit is liable to be dismissed in limini. The other deposits i.e., E.M.D. and F.S.D. can be released only after six months after the final payment or till such time the agreement condition are fulfilled and the vouchers relating to the work are fully audited and the results communicated to the department. So the claim towards E.M.D. and F.S.D. is premature. The claim of interest is against rules. Hence, they pray to dismiss the suit. 5. Basing on the above pleadings, the following issues were settled by the trial Court: 1. Whether the defendant made the final and full payment 30-05- 1991 as pleaded in the written statement? 2. Whether the payment of Rs.1,00,835/- covered the entire claim of the plaintiff? 3. Whether the defendant can retain the additional security deposits and further security deposits as pleaded in the written statement for a period of six months and as such the claim of the plaintiff is premature? 4. Whether the plaintiff is entitled for the interest claimed? 5. To what amount the plaintiff I entitled? 6. To what relief? 6. The plaintiff himself was examined as P.W.1 and got marked Exs.A1 to A5. On behalf of the defendants, D.W.1 was examined and no documents were marked. 7. The trial Court after consideration of oral and documentary evidence on record, decreed the suit. Aggrieved thereby, the defendants filed this appeal. 8. The learned Assistant Government Pleader appearing for the appellants contended that in view of the fact that the plaintiff voluntarily given up contract work for the reason that he wanted to contest in the elections, the Government accepted the same and refunded the amount due to him and that amount has been received by him without any protest and therefore, question of awarding interest for the amount received by the plaintiff is not warranted and hence, she prays to set aside the judgment and decree with regard to granting of interest. 9. Now the point for determination is whether the plaintiff is entitled for the interest and costs for the suit claim?. 10. During the course of evidence, it came to light that the amount claimed for the work done was calculated to Rs.1,14,750/- and the deposits came to Rs.55,290/- and the remaining amount is claimed towards interest. It is not in dispute that after filing of the suit, the plaintiff was given a cheque for Rs.1,00,835/- on 30-05-1991 and that amount was paid after the check measurement was done. It was conceded by the plaintiff that the cheque represents the work done by him. The receipt of the said cheque is without any protest. Therefore, as on the date of receiving the cheque, no amount was due to the plaintiff in relation to the work done by him. It is not in dispute that E.M.D. amount of Rs.55,500/- was not returned. Even D.W.1 admitted that the Department has no objection to return the deposit provided the plaintiff submits indemnity bond. It is not the case where the defendants terminated agreement of contract because the plaintiff wanted to contest in the elections. He himself requested the department to cancel the contract and he may be paid to the work done as on the date of withdrawal from the contract work. When the plaintiff himself received the amount without any protest, the question of paying any interest does not arise. In such circumstances, it can be said that he waived his claim with regard to interest. That aspect of the case has not been considered by the trial Court. Therefore, the decree with regard to granting of interest at 12% p.a. on Rs.1,00,835/- from 01- 02-1990 to 29-05-1991 and the proportionate costs from the defendants on the suit amount are liable to be set aside. 11. Accordingly, the appeal is partly allowed confirming the decree insofar as it relates to recovery of amount of Rs.55,500/- with simple interest at 12% p.a. from 01-11-1999 till the date of realization and execution of indemnity bond to the defendants within a period of one month from the date of decree to enable the defendants to pay the entire amount. The decree with regard to granting of interest at 12% p.a. on Rs.1,00,835/- from 01-02-1990 to 29-05-1991 and the proportionate costs from the defendants on the suit amount are set aside. No order as to costs. ________________ K.C. BHANU, J DATED:19.10.2010 Hsd