IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 382/1999 Reserved on:5.6.2009 Decided on:25.6. 2009 Govind Ram and others. …Appellants. Versus State of Himachal Pradesh and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1 No. For the appellants : Mr. Bhupinder Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate For the Respondents : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 14.6.1999 passed by the learned District Judge, Shimla in civil appeal No. 16-S/13 of 1997 and 5-S/13 of 1999/97 partially modifying the judgment and decree passed by the learned Sub Judge 1st Class (1), Rohru, District Shimla in civil suit No. 125/1 of 1995 dated 30.11.1996 for setting aside the same and to decree the suit of the plaintiff in its entirety with costs. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 Brief facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of the appellants (hereinafter referred to as ‘the plaintiff’ for convenience sake) instituted a suit for recovery of Rs. 1,10,998.36 paisa in the court of learned Sub Judge 1st Class. He had pleaded that in the year 1988, the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) invited tenders for the construction of Baidhar-Tikkar Road. He submitted the tenders for the works advertised and three works were allotted to him by the defendants. According to him, the works were completed except Deoli Ghasni Road C/05/7 meters. Out of this partition, 22 meters had been completed in May, 1990 and only 8 meters portion could not be completed for want of non-supply of blasting material by the defendants. According to him no proper measurement was carried out by the defendants. In all, the plaintiff had claimed for execution of three works a sum of Rs. 1,10,998.36 paisa. The suit was contested by the defendants. The defendants have admitted the awarding of works to the plaintiff. However, it was pleaded that the plaintiff had not completed the works within the stipulated period. It was further pleaded by the defendants that the plaintiff has never lodged any complaint regarding the shortage of blasting material. According to them, the measurement of the works was carried out in the presence of the plaintiff. The plaintiff filed the replication to the written statement filed by the defendants. The trial court partly decreed the suit of the plaintiff to the extent of Rs. 41,450/- with costs and future simple interest @ 12% per annum from the date of filing till its realization. The plaintiff preferred an appeal against the judgment and decree passed by the learned Sub Judge 1st Class. It was assigned civil appeal No. 16-S/13 of 1997. The defendants also preferred an appeal against the judgment and decree dated 30.11.1996 passed by the learned Sub 3 Judge 1st Class and it was assigned civil appeal No. 5-S/13 of 99/97. The learned District Judge dismissed the appeal filed by the plaintiff vide judgment dated 14.6.1999. The appeal filed by the defendants was partly accepted and the judgment and decree of the trial court was modified in the manner that in place of decree for a sum of Rs. 41,450/- with costs and with interest @ 12% per annum from the date of the filing of the suit till the payment of the decretal amount, a decree for a sum of Rs. 41,212/- without costs and without interest was passed in favour of the plaintiff and against the defendants. The plaintiff was also saddled with the costs of the appeal by the learned District Judge. This Regular Second Appeal has been filed seeking modification of the judgment and decree passed by both the courts below by decreeing the suit of the plaintiff in its entirety with costs and interests. The Regular Second Appeal was admitted on the following substantial question of law: 1. Whether the lower appellate court is justified in law in withholding the interest and cost by modifying the decree of the trial court and also reducing the amount of decree without assigning any cogent reasons for the same, when the plaintiff was held entitled for the amount and there was no evidence available on the record to show that the whole amount as claimed by the plaintiff was ever offered by the defendants to the plaintiff and in such circumstances, was it within the jurisdiction of the lower appellate court to have declined the interest and the cost to the plaintiff-appellant? Mr. Bhupender Gupta, Senior Advocate has strenuously argued that the first appellate court has committed illegality by dismissing the appeal preferred by his client. According to him, the suit of the plaintiff was required to be decreed in its entirety with costs and interest. 4 Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the judgment and decree passed by the first appellate court. I have heard the learned counsel for the parties and perused the record carefully. The sum and substance of the case of the plaintiff is that the sanctioned amount of three works allotted to him was for Rs. 1,28,286/-. He was paid a sum of Rs. 41,485/- but remaining amount of Rs. 86,801/- was not paid to him. He has relied upon letters Ex. PW-1/A, Ex.PW-1/B and PW-1. A sum of Rs. 1, 28,286/- was estimated cost of the works. It was nowhere stipulated that the amount mentioned in the letter was to be paid in its entirety to the plaintiff on completion of the works. The money was to be paid after carrying out the measurements of the works executed by him. He has proved on record Ex.PW-1/E and Ex.PW-1/F. According to these two letters, he had executed the work worth Rs. 91,253/-. Ex. PW-1/E is dated 13.6.1990 and Ex.PW-1/F is dated 3.11.1990. He had claimed a sum oif Rs. 91,253/- on account of the value of the works executed by him. He has been paid a sum of Rs. 41,485/- as per his own averments contained in para 3 of the plaint. The defendants have also stated that a sum of Rs. 41,485/- was paid to the plaintiff. He has not denied this averment in replication. It is thus evident that he has received a sum of Rs. 41,485/- out of Rs. 91,253/-. A sum of Rs. 5,989/- and Rs. 2567.12 paisa were to be deducted out of a sum of Rs. 49,768/- and a sum of Rs. 41,212/- remained due to the plaintiff. He has failed to prove that the work executed by him on the spot was more than the work on the basis of the measurements carried out on the spot. The plaintiff could only prove that he was entitled to Rs. 41,212/-. The trial court has decreed the suit for a sum of Rs. 41,212/- with costs and future simple interest @ 12% per annum. The first appellate 5 court has though upheld the decree for recovery of Rs. 41,212/- but without costs and without interest. The Court is of the firm opinion that the plaintiff was entitled to simple interest @ 12% per annum on the decretal amount of Rs. 41,212/-. The only ground mentioned by the learned District Judge for denial of the costs and interest is that the defendants had offered to pay a sum of Rs. 44,498/- to the plaintiff vide Ex.DW-2/A against a sum of Rs. 41,212/-. This cannot constitute a valid ground for denying the interest to the plaintiff. Since the plaintiff has been deprived of a sum of Rs. 41,212/-, he was entitled to simple interest @ 12% per annum as awarded by the trial court. In view of the discussion made hereinabove, the appeal is partly accepted. The judgment and decree of the first appellate court is modified to the extent that the plaintiff is held entitled to simple interest @ 12% per annum from the date of institution of the suit till the realization of the decretal amount of Rs. 41,212/-. No costs. 25.6. 2009 (Rajiv Sharma ), J. *awasthi*