THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Appeal Suit No.82 of 2007 JUDGMENT: The appellants invited tenders for the work of providing B.T. renewal coat upon the road from Bodhan to Ethonda, estimated at Rs.16 lakhs. The respondents emerged as the successful tenderers, by quoting excess of 9.95%, over the estimated amount. The same was accepted by the appellants and a contract was executed for a sum of Rs.16,75,758/-. The mark out was given on 03.03.1999, and the work was to be completed within six months. The respondents filed O.S.No.14 of 2001 in the Court of Senior Civil Judge, Bodhan, against the appellants, for recovery of a sum of Rs.4,89,329/-, with interest at 24% per annum, from the date of filing of the suit, till the date of realization. They pleaded that the work was executed according to the specifications and the bills to the extent of Rs.2,00,000/- were not paid. It was also alleged that EMD and security deposit to the tune of Rs.1,00,000/-, was not refunded. Rs.1,03,329/- was claimed towards damages. The appellants filed written statement, opposing the suit. According to them, the amounts, which the respondents were entitled to, were already paid. It was pleaded that during the course of inspection of the work, certain defects were noticed, and a memo, dated 18.11.1999 was issued requiring the respondents to rectify the defects. It was mentioned that the respondents themselves are liable to refund a sum of Rs.3,89,735/-, for the deficiency of the work. Through judgment, dated 04.03.2005, the trial Court decreed the suit, for a sum of Rs.3,77,231/-, with interest at 12%, per annum, from the date of filing of the suit. The same is challenged in this appeal. Learned Government Pleader for Appeals submits that the trial Court did not take into account the communication issued to the respondents, pointing out defects. He contends that the work executed by the respondents did not accord with the specifications of the agreement, marked as Ex.B.1. Learned counsel submits that the entries in the measurement book, marked as Ex.B2, were not considered. Sri T.V.Rajeevan, learned counsel for the respondents, on the other hand, submits the records clearly disclose that the entire work was executed, in accordance with the specifications. By making reference to the deposition of DW.1, he submits that there did not exist any dispute, as to the performance of contract, on the part of the respondents. There did not exist any dispute, as to the entrustment of work, by the appellants to the respondents, or as to the terms of agreement. Except a sum of Rs.2,00,000/-, the appellants released the entire amount covered by the agreement. In addition to withholding Rs.2,00,000/-, they refused to return the EMD of Rs.40,000/- and the security deposit of Rs.60,000/-. The respondents filed the suit for payment of not only these amounts, but also a sum of Rs.1,03,329/- towards interest by way of damages. On the basis of the pleadings, the trial Court framed the following issues for its consideration: i) “Whether the plaintiff is entitled to recover an amount of Rs.4,89,329/-? ii) Whether the plaintiff is entitled for future interest @ 24% per annum on decretal amount? iii) To what relief?” The evidence adduced in the suit is very scanty. On behalf of the respondents, PW.1 was examined and a copy of legal notice, dated 01.01.2001, was marked as Ex.A.1. On behalf of the appellants, DW.1 was examined and Exs.B.1 and B.2 were marked. The point that arises for consideration, in this appeal, is as to, Whether the appellants are justified in withholding part of the amount covered by the agreement and a sum of Rs.1,00,000/- deposited by the appellants towards EMD and security deposit? The appellants sought to justify the action, referred to above, on the ground that in the course of inspection conducted by the Advisor to the then Chief Minister and Quality Control Officer, NABARD on 19.06.1999, certain defects in the execution of the works by the respondents were pointed out and the same were not rectified by the respondents. Apart from pleading justification for withholding the amounts, referred to above, the appellants insisted that the respondents are liable to pay amount for the deficiency of the work. Hardly any material paper has been placed before the trial Court to suggest that any deficiency was noticed in the work executed by the respondents. The Executive Engineer of the department was examined as DW.1. In his cross-examination, he admitted that the respondents have executed the work and rectified the defects. For instance, his attention was drawn to page No.57 of measurement book, marked as Ex.B.2, wherein it was certified that the respondents have rectified the patch holes with their own costs. When the same was suggested to him, he categorically admitted. Further certifications are at page 82 of the same Ex.B.2. The trial Court took into account the admissions by DW.1 and arrived at the conclusion that there was no basis for the appellants to withhold the amount. The relationship between the appellants and the respondents is governed by the agreement, which is marked as Ex.B.1. In case the appellants wanted to deny any benefit under the agreement to the respondents, they were under obligation to place the material before the Court to justify their action. No such effort was made. The amount deposited towards EMD and security deposit can be withheld, only on the strength of written orders duly indicating the reasons for such an action. No proceedings justifying the withholding of the EMD and security deposit are placed before the trial Court. Therefore, the point deserves to be answered in favour of the respondents and against the appellants. This Court does not find any basis, or ground to interfere with the judgment and decree passed by the trial Court in O.S.No.14 of 2001. The appeal is accordingly dismissed. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated:19.08.2009. GJ