1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT ::: S.B. Civil First Appeal No.29/1988 The State of Rajasthan & another. vs. M/s. Mehta Construction Company. Date : 20th August, 2010 HON'BLE JUSTICE SHRI PRAKASH TATIA Mr.Ashwini Gehlot, for the appellants. Mr.Narendra Singh, for the respondent. - - - - - BY THE COURT : Heard learned counsel for the parties. The plaintiff/respondent filed a suit for recovery of principal amount of Rs.98,371/- with interest. The trial court decreed the suit of the plaintiff vide impugned judgment and decree dated 9.10.1987 for a sum of Rs.98,371/- as principal amount and Rs.1,629/- as interest, in total Rs.1,00,000/- with interest at the rate of 6% per annum. Hence, the State has preferred this regular appeal. 2 Brief facts of the case are that a work contract was given to the plaintiff by the defendant no.2 – Chief Engineer Rajasthan Canal Project, Bikaner on behalf of the State Government in pursuance of the tender dated 7.4.1969. The contract was executed on 20.5.1969. According to the plaintiff, there were reciprocal obligations of the parties for providing some facilities by the appellants and of doing work by the respondent. The details are given in the terms of the agreement and details of those terms are not relevant in view of the fact that this fact is not in dispute that the plaintiff was given contract and it started the work. It is also not in dispute as per fact stated in the written statement that the plaintiff did the work and submitted running bills periodically for which the plaintiff was given payment of the running bill amounts on 21.5.69, 8.7.69, 7.1.70, 31.1.70, 28.2.70, 31.3.70, 2.6.70 and 10.7.70, thereby total 9 bill payments have been paid to the plaintiff as admitted by the defendants in the written statement. However, it is also admitted case that when 9th running bill was submitted by the plaintiff, then the defendants recovered some amount on the ground that the plaintiff left the work and, therefore, that amount was not paid to the plaintiff. The defendants also stated that 3 since the plaintiff left the work, therefore, its security amount of Rs.25,000/- was forfeited. The defendants further stated that since the plaintiff left the work, they have to complete the work from their own sources by paying extra amount. However, in the written statement, there is no counter claim raised by the defendants so as to claim damages from the plaintiff on account of breach of contract. Furthermore, in para 19 of the plaint, the plaintiff pleaded that it did the work of Rs.98,371.96p., details of which has been given in the Schedule appended to the plaint. For this, the defendants replied (in para 27) that they are denying the work mentioned in items no.1 to 15 of the Schedule and, therefore, the plaintiff's contention that Rs.98,371.96p. is due in the defendants is wrong. However, the defendants specifically have not controverted the facts that the plaintiff did not do the work, details of which have been given by the plaintiff in the Schedule appended with material particulars inspite of the fact that the defendants had specific knowledge that whether those works have in fact been carried out on spot or not. Be it as it may, mere using the words “specifically denied” itself cannot be a sufficient denial when the facts were in the knowledge of the defendants who could have stated that the works mentioned in the Schedule have in fact either not been executed by the plaintiff and if executed by the plaintiff, 4 then it was unauthorisedly executed or if it was executed, then the payment of that work has been paid to the plaintiffs. However, as already stated, no such denial is there. Be it as it may be, in view of the pleadings of the parties, the trial court framed as many as 8 issues. Issue no.1 was whether the plaintiff was a registered partnership firm ? Issue no.2 was whether the plaintiff's tender was accepted or work order was given or not ? Issue no.3 was whether the plaintiff complied with the conditions of agreement/contract and if it has not complied, then its work could have been suspended or cancelled ? Issue no.4 was wither the plaintiff committed breach of terms of the contract ? Issue no.5 was whether the plaintiff was entitled to money claimed in the suit ? Issue no.6 was with respect to the claim of interest of the plaintiff ? Issue no.7 was whether the plaintiff was required to complete 1/18th of the work every month and upon completion of that work, only payment could have become due ? Issue no.8 was whether the plaintiff's suit is according to the cause of action disclosed in the plaint ? And issue no.9 was about the relief ? In the trial court, the plaintiff produced witnesses PW1 Shivkishan and PW2 Jaikishan and produced certificate of registration of their firm 5 as Ex.1, copy of notice sent under Section 80 CPC as well as acknowledgement receipt thereof. The defendants produced witnesses DW1 L.L. Mathur, DW2 T.R. Dhawan, DW3 Rewant Singh and DW4 Hira Ram. The defendants produced as many as 37 documents and original documents. So far as plaintiff's firm is registered firm is concerned, this finding of the trial court is based on documentary evidence and this issue has not been contested by the appellants seriously in appeal and rightly the appellants did not contest this issue as the plaintiff proved its firm to be registered firm. The finding of issue no.2 also is not seriously disputed in view of the fact that it is admitted case that the tender of the plaintiff was accepted and the plaintiff was given the work order and in the written statement, the defendants admitted even acting upon that contract and making payment to the plaintiff periodically. Issues no.3 and 4 are also of not much importance in view of the fact that it is not the case of even the plaintiff that it was not under an obligation to do the work and it is not the case of the defendants that they cancelled the contract and the defendants are entitled to any damages from the plaintiff as there is no counter claim nor there is any claim for adjustment of the amount i.e. aasserted or determined claim which 6 could have been done after giving opportunity of hearing to the plaintiff for determination of compensation payable to the defendants. The core issue is issue no.5 which is with respect to the plaintiff's amount due in the defendants. For this issue, both the parties led evidence. The plaintiff did the work is not in dispute. The plaintiff's amount has been deducted from running bill no.9 is also admitted fact. The plaintiff gave its detail evidence with respect to the work done by it and referred in the schedule appended to the plaint. In rebuttal to the plaintiff's evidence, the defendants' contention is that when the plaintiff did not complete the work, then some letters were given to the plaintiff and the plaintiff was asked to remain present for measurement of work but the plaintiff did not remain present. The defendants further pleaded that when the plaintiff's 9th running bill was received by the defendants, then at that time, an audit objection was raised that the plaintiff did not complete 1/18th part of the work every month. The plaintiff's case is that it could not do the work in time as the respondent did not supply the water etc. on site. Substantially there are allegations of not providing sufficient infrastructure for completion of the work to the plaintiff by the defendants. If the contention of the defendants is accepted that the plaintiff did 7 not cooperate for measurement of the work, then also it is not the case of the defendants that they measured the work done by the plaintiff and found the work short to the bill raised by the plaintiff. As already noticed, it is not the case of the defendants that because of some valid reason they could have deducted any amount of the plaintiff to be adjusted against the dues of the department and this is more relevant because of the reason that admittedly, the defendants have not levied any penalty against the plaintiff for breach of contract nor passed any order to forfeit the security amount. In these facts and circumstances, the trial court was fully justified in holding that the defendants had no right to deduct the plaintiff's principal amount of Rs.73,371.96p. and Rs.25,000/- as security amount. The trial court carefully considered the statement of the witnesses with reference to the documents produced by the defendants and I do not find any illegality in the finding of fact recorded by the trial court while deciding the issue no.5. The trial court was fully justified in holding that if the plaintiff has not completed the work of 1/18th per month, then also, it is inconsequential because of the reason that there is no counter claim of the defendants against the plaintiff on this account claiming damages against 8 the plaintiff nor there is a claim of adjustment of any amount, rather say, any amount could not have been claimed for adjustment as that alleged claim has not even been quantified by the defendants. The defendants also failed to prove that the time was essence of the contract. In view of the above discussion, I do not find any merit in this appeal and the same is hereby dismissed. No order as to cost. [PRAKASH TATIA], J. S.Phophaliya