RSA No.3987 of 2008 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3987 of 2008 Date of Decision: 8.12.2008 The Punjab State and others ..Appellants. Vs. The Warning Suba Singh Cooperative Land and Society Ltd. . ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.P.C.Goyal, Addl.AG Punjab for the appellants. None for the respondents. RAKESH KUMAR JAIN, J. This second appeal has been filed by the defendants against the judgment and decree of both the Courts below whereby the suit of the plaintiff for recovery has been decreed. Briefly stated the facts of the case are that the plaintiff is a registered Cooperative Society. In response to N.I.T in respect of the work of Blair Sub Minor RDO to 7000, the plaintiff Society submitted tender rates which were accepted by the defendants. The plaintiff Society executed the work as per agreement and completed within time on 4.1.1999 subject to the satisfaction of the defendants. After completion of the said work, the plaintiff Society submitted bills to the defendants for payment of the work done but the defendants did not make the payment. The plaintiffs filed Civil Writ Petition in the High Court which was disposed of on 18.2.2002. Thereafter, the defendants had paid only amount of executed work RSA No.3987 of 2008 -2 - amounting to Rs.2,92,022/- vide cheque dated 14.9.2002 but the defendants did not pay interest on the delayed payment which they were otherwise liable to pay w.e.f. January 1999 to September 2002. The plaintiff Society claimed interest @ 18% per annum on the delayed amount of Rs.2,92,022/- but the defendants did not pay as a result of which the suit has been filed. In the written statement, the defendants admitted that the work was allotted to the plaintiff Society but it was claimed that as per Condition No.6 of the work order, the plaintiff never submitted bills well within time rather it was the defendant department who had prepared the bills on its own level. It was further alleged that defendants had already paid the amount of Rs.2,92,022/- on 14.9.2002 and there is no provision in the work order regarding payment of interest on the delayed payment. From the pleadings of the parties, the following issues were framed by the trial Court: (i)Whether the plaintiff is entitled to recover the suit amount along with interest as claimed ? OPP. (ii)Whether interest as claimed ? OPP. (iii)Whether before filing the present suit notice under section 80 CPC was served upon the defendants? OPP. (iv)Relief. The plaintiff examined Dalbir Singh as PW1 and Tilak Raj as PW2 whereas the defendants examined Ajit Singh as DW1, Vivek Sheel Chawla as DW2 and Harish Kumar as DW3. The trial Court decreed the suit vide judgment and decree dated 28.4.2007 in which it was held that the plaintiff has proved bill Ex.P10 which is admitted by the defendants' witnesses. As per terms and conditions of the work order, the plaintiff was not required to submit the bill themselves. According to condition No.6, the RSA No.3987 of 2008 -3 - plaintiff was to deliver in the office of the SDO/Executive Engineer on or before 10th of every month during the continuance of the work done under the work order, a return showing particulars of all claims. This condition No.6 if read with Rule 7.16 of the Financial Rules relating to the public work department, the payment for all the works done are to be made on the basis of the measurement recorded in the measurement book. Therefore, measurement book is considered as very important account record in which detailed measurements are to be recorded by the Executive Engineer etc. As per Rule 7.7.(b) it is the Gazetted Officer or his subordinate who is to prepare the bill and is required to certify therein the whole of the work executed therein by the contractor. Thus, it was not for the plaintiff to submit the bill rather he was to refer to the measurements made in the measurement book and the bill was to be prepared by the concerned Gazetted Officer of the defendants on the basis of the entries made in the measurement book. The defendants' witnesses Ajit Singh DW1, Vivek Sheel Chawla DW2 and Harish Kumar DW3 have admitted in the cross- examination that the payment to the contractor was to be made on the basis of entries regarding the execution of the work in the measurement book maintained by the department. Therefore, the plaintiff was not required to submit final bill as the Gazetted Officer of the defendants was to prepare the same on the basis of the entries of the measurement book. With these findings, it was held that the plaintiff is entitled to the payment of interest @ 12% per annum w.e.f. 1.7.1999 to 14.9.2002 with future interest @ 6% per annum from the date of institution of the suit till the date of decree and further interest at the said rate from the date of decree till its realisation. The defendants went up in first appeal in which the first RSA No.3987 of 2008 -4 - Appellate Court had held that there is no challenge to the finding that amount of Rs.2,92,022/- was paid on 14.9.2002 by the defendants- appellants which was required to be paid on or before 1.7.1999. As such, the defendants-appellants delayed the payment of amount, however, the first Appellate Court found the interest awarded as excessive, therefore, the appeal of the defendants was allowed partly and it was held that the plaintiffs shall be entitled for recovery of interest on the delayed payment of Rs.2,92,022/- @ 8% per annum from 1.7.1999 till the payment of entire amount of interest. Now the defendants are in second appeal before this Court. The question of law framed in the grounds of appeal and argued before this Court by Sh.P.C.Goyal, Addl.AG Punjab is to the effect “as to whether respondent-plaintiffs are entitled to recover amount along with interest while respondent-plaintiff has not submitted the bill within time. Interestingly, the finding recorded by the trial Court on this issue as to whether the plaintiff has to submit the bill or the defendant has to prepare the bill on the basis of measurement book has not been challenged by the appellants before the first Appellate Court rather the issue was raised only qua rate of interest which of course was reduced by the first Appellate Court from 12% per annum to 8% per annum. Now in the present appeal, defendants-appellants have again raked up this issue which is a pure finding of fact recorded by the trial Court and not even challenged before the first Appellate Court. Therefore, I find that the present appeal is totally frivolous and has been filed for the sake of filing it, therefore, the same is hereby dismissed with a costs of Rs.5000/-. (Rakesh Kumar Jain) 8.12.2008 Judge Meenu