// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil First Appeal No.125/1991 {Bhanwar Lal and Others Vs. State of Rajasthan and Others} Date of Order ::: 24.03.2009 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Ajeet Bhandari, Counsel for appellants Shri S.C. Purohit, Government Counsel for respondents #### By the Court:- The plaintiff-appellants filed a suit for recovery of a sum of Rs.1,03,000/- against the defendant-respondents in the trial court; the said suit was decreed by the trial court for a sum of Rs.9,948/- with interest at the rate of 6% per annum. Being aggrieved with rejection of other part of suit for recovery of money, the plaintiff-appellants have preferred this appeal. The plaintiff was 'A' Class contractor (Public Works Department & Railway); vide order dated 10th March, 1961, his tender amounting to Rs.97,346/- for construction of the metalled road from Indergarh to Karwar was approved and an agreement in due course was executed. The plaintiff gave the details of his entire dues in Annexure Schedule 'A', appended with the suit, which are as under:- // 2 // ANNEXURE SCHEDULE 'A' 1. Non payment of 6th running Bill Rs.23,882.00 2. Difference account of arbitrary deduction in the item of Earthwork Rs.2,091.98 3. Less payment in consolidation of Ballast Rs.1,144.26 4. Less payment of earthwork done at site non measured in time Rs.3,216.89 5. Payment made to other contractor's agent for freight and wages Rs.1,000.00 6. Deduction of Roller charges more from the final bill Rs.620.00 7. Deduction of Rs.618/- on account of penalty from the final bill Rs.618.00 8. Security deposit not refunded after due date Rs.9,948.00 9. Damages on account of non-payment of the just dues of the various bills at the proper time: Rs.25,000.00 Due Amount: Rs.67,521.13 10. Interest on the all items Rs.57,483.01 Total: Rs.1,25,004.14 The plaintiff claimed Rs.25,000/- on account of damages, in the above Schedule 'A', but he restricted his claim in his plaint to Rs.10,000/- only on account of damages, and consequently reduced the interest thereon and thus filed a suit for recovery of a sum of Rs.1,03,000/-. The trial court decreed the suit // 3 // in respect of Item No.8 of the Annexure Schedule 'A', for Rs.9,948/- towards security deposit, which was not refunded by the defendants after due date. The trial court has also awarded interest thereon. The submission of the learned counsel for the appellants is that the trial court has committed serious illegality in not decreeing the suit of the plaintiff in respect of Items No.1 to 7 of Annexure Schedule 'A', whereas from the evidence available on the record the claim of the plaintiff was fully proved. He further contended that in the facts and circumstances of the case the plaintiff was entitled for damages and interest on the due amount. The trial court framed Issue No.1 in respect of Item No.1 of Annexure Schedule 'A' relating to Rs.23,882/-. The Issues No.2 and 3 were framed in respect of Item Nos.2 to 7 of Annexure Schedule 'A'. Issue No.4 relates to Rs.10,000/- claimed towards damages. Issue No.5 relates to interest in case the amount is decreed in favour of the plaintiff. Issues No.6 and 7 were also framed as to whether the defendants are entitled to receive damages from the plaintiff for not completing by him the work in time. The trial court decided Issue No.1 independently. The Issues No.2 to 7 were decided jointly. All the Issues were decided against the // 4 // plaintiff. Issue No.8 was also framed in respect of limitation, which was decided partly in favour of the plaintiff. The submission of the learned counsel for the appellants is that the trial court committed an illegality in deciding Issue No.1 against the plaintiff; his contention is that the tender was accepted in the name of the plaintiff whereas the payment of Rs.23,882/- was made to one Man Mohan Goyal and not to the plaintiff, therefore, the payment made to Man Mohan Goyal cannot be treated to have been made to the plaintiff and the said Issue ought to have been decided in his favour. So far as Issues No.2 to 7 are concerned, the learned counsel for the appellants contended that the learned trial court has not appreciated the evidence properly and thus wrongly decided these Issues against the plaintiff. So far as the finding in respect of Issue No.8 is concerned, the learned counsel for the appellants stated that it was a case pertaining to payment of running bill, where the limitation should have been counted from the date of last/final bill and, as such, the suit was filed within time and the finding of the trial court in this regard is liable to be reversed. The learned counsel for the respondents contended that the trial court has considered // 5 // the oral and documentary evidence in detail and there is no illegality or perversity in the finding of the trial court in respect of Issues No.1 to 8 and, as such, no interference is called for by this Court in the said finding and the appeal deserves to be dismissed. I have considered the submissions of the learned counsel for the parties and examined the impugned judgment and the record of the trial court as well. So far as the finding of the trial court in respect of Issue No.1 is concerned, after considering the evidence available on the record and the submissions of the learned counsel for the parties, I am satisfied that the learned trial court has rightly decided Issue No.1 in favour of the defendants and against the plaintiff. The amount of Rs.23,882/- relates to 6th running bill. The defendants paid the said amount through Cheque No.32733 dated 26th February, 1964. The Cheque was issued in the name of the plaintiff and it was handed over to Man Mohan Goyal. The submission of the learned counsel for the appellant is that Man Mohan Goyal was not authorized on his behalf to collect the Cheque or to receive the amount of running bill on behalf of the plaintiff; whereas the submission of the learned counsel for the respondent is that Man Mohan Goyal was partner // 6 // of the plaintiff and he was fully authorized to receive the Cheque on behalf of the plaintiff against his running bill, therefore, the payment made by the defendants in this regard through Cheque was correct payment and the defendants have committed no illegality in it. In this regard it is relevant to mention that the plaintiff himself gave a written letter (Exhibit A-7) dated 4th September, 1961 to the defendants. The trial court has reproduced the said letter in its judgment while recording the finding on Issue No.1. The said letter is also reproduced here as under:- “To The Assistant Engineer, P.W.D. (B&R) Bundi. Sub: Construction of M.R. from Indergarh to Karwar. Dear sir, I beg to inform you that Shri Man Mohan Goyal is my Partner. He has got power to look after the above work and accept the measurement and bill prepared by you and carry on the work as per your instructions and specification on my behalf. Yours faithfully, Shri Narain 4.4.61.” The plaintiff, in his statement, has admitted that he has written the above letter dated 4th October, 1961. The aforesaid letter makes it clear that the plaintiff admitted that Man Mohan Goyal was his partner. The payment was made through Cheque in the name of the // 7 // plaintiff. If the payment of the said Cheque has been withdrawn by Man Mohan Goyal illegally by committing any criminal act then it was for the plaintiff to take necessary action in this regard directly against Man Mohan Goyal. It is relevant to mention that in Para Nos.4 and 5 of the plaint the plaintiff has pleaded about the payment of Rs.23,882/- with reference to Man Mohan Goyal but it has not been pleaded that Man Mohan Goyal was not authorized to collect Cheque on his behalf against the running bills; when Exhibit A-7 has been admitted by the plaintiff, wherein Man Mohan Goyal was admitted to be his partner, then it is presumed that he was authorized to collect the Cheque of running bill on behalf of the plaintiff also, and in case any Cheque, in the name of the plaintiff, pertaining to his payment, has been handed over to Man Mohan Goyal, then it is treated as legal payment and if any wrong has been committed with regard to that Cheque then this is a matter in between the plaintiff and Man Mohan Goyal. So far as the defendants are concerned, they cannot be made liable for double payment of the said amount. The trial court has considered both oral as well as documentary evidence in this regard and, in my view, the finding of the trial court in respect of Issue No.1 is fully justified and no interference in it is called // 8 // for. So far as the finding of the learned trial court in respect of Issues No.3 to 7 in respect of Items No.2 to 7 of Annexure Schedule 'A' appended with the suit, is concerned, I find that for Item No.2 for Rs.2,091.98p. for Item No.3 for Rs.1,144.26p. and for Item No.4 for Rs.3,216.89p., the trial court has recorded a finding that payment towards the said Items were made to the plaintiff and he accepted the payment towards full and final payment as it was not accepted under protest. The payment was made in the year 1965-1966 and no objection in this regard was raised by the plaintiff till filing of the suit in October, 1975 i.e. for about ten years. The trial court has also assigned other reasons while rejecting the claim of the plaintiff in respect of Items No.2 to 4, but, in my view, one reason assigned by the trial court is sufficient that the payment was accepted by the plaintiff in 1965-66 without any protest in this regard, therefore, the payment was made without any protest and, in these circumstances, the plaintiff is now estopped from raising such grievance in respect of these Items. So far as Item No.5 of Annexure Schedule 'A' relating to Rs.1,000/- is concerned, the trial court has rightly disallowed the said claim of the plaintiff on the ground that the // 9 // payment of Rs.1,000/- was made by the defendants to another Contractor for making good the damages for which the plaintiff is liable. Similarly the trial court has rightly disallowed the claim of the plaintiff in respect of Items No.6 and 7 for Rs.620/- and Rs.618/-, respectively, and, in my view, no interference in the said finding is called for. So far as the finding of the learned trial court in respect of Issue No.8, relating to limitation, is concerned, it is a settled proposition of law that question of limitation is a mixed question of law and fact, both. The trial court has considered the facts and law both while deciding Issue No.8 and, in my view, the finding of the trial court in this regard is correct and no interference in it is called for. In view of the above discussion, I do not find any merit in any of the submissions of the learned counsel for the appellants and the appeal, being devoid of any merit, is hereby dismissed with no order as to costs. (Narendra Kumar Jain) J. //Jaiman//