IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.253 of 2004 Judgment reserved on:30.9.2008. Decided on: October 17, 2008 Amar Nath …..Appellant. VERSUS Anil Mahajan …..Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Appellant : M/s.Bhuvnesh Sharma & Ramakant Sharma, Advocates. For the Respondent: Mr.Sunil Goel, Advocate. Kuldip Singh, Judge: The plaintiff has filed the present appeal against judgment, decree dated 3.12.2003 passed by learned Additional District Judge(1), Kangra at Dharamshala in Civil Suit No.7-G/2001 dismissing the suit of the appellant for recovery of Rs.2,71,630.70 along with interest at the rate of 15% per annum w.e.f. 22.11.2001. 2. The facts, in brief, are that appellant had filed a suit for recovery of Rs.2,71,630.70 along with interest at the rate of 15% per annum from 22.11.2001 onwards 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… against respondent for supplying sand, stone, Bajri etc. It has been alleged that respondent was a registered Class-A contractor with Himachal Pradesh Public Works Department and was awarded contract for construction of culverts, drains, retaining walls on Hoshiarpur – Dharamshala road R.D.No.117 to 121 from Bankhandi to Dargetta on three kilometers length for an amount of Rs.11 lacs. The respondent had engaged appellant for supply of sand, bajri, stones, boulders and water on 10.12.1998 for completion of the said work. The appellant was owner of tractors bearing registration No.HIK-2170 and HP-36-2203 and appellant by engaging these tractors supplied material to respondent from 10.12.1998 to 22.7.1999 worth Rs.2,56,282. The respondent had made payment of Rs.55,000 only to the appellant and Rs.2,01,182 was still recoverable from respondent. The appellant had filed a complaint before Labour Inspector, Dehra who on 10.10.2000 held that respondent was liable to pay the claim of the appellant. The respondent had filed an appeal against the decision dated 10.10.2000 and the case was remanded to Labour Inspector who vide order dated 6.8.2001 held that dispute between the parties is of civil nature. Thereupon appellant served a notice dated …3… 25.8.2001 on respondent which was not replied and then appellant filed the suit. 3. The suit was contested by respondent by filing written statement in which he took preliminary objections of locus standi, non-joinder of necessary parties and lack of cause of action. On merits, it was pleaded that the tractors of appellant were meant for agricultural purpose and those could not have been used for supply of sand, bajri, stones etc. to respondent. The appellant was never engaged for supplying material. The respondent had no privity of contract with the appellant. It has been denied that no payment was made to appellant or any payment still remained to be paid to appellant by respondent. The award of work from Kilometers 117/0 to 121/0 to respondent was admitted but it was pleaded that respondent had engaged Madan lal as sub-contractor to execute the work on the spot by engaging labour and procuring material from all agencies. The Labour Inspector was not competent to adjudicate the dispute between the parties. In order to avoid dispute and to maintain good relations, respondent had agreed to pay Rs.1,60,000 to Sub-Contractor Madan Lal in full and final settlement of his claim. The claim, if any of the appellant, may be against …4… sub-contractor Madan Lal and not against respondent who never engaged appellant for supplying the material. The respondent thus denied the claim of the appellant. The appellant filed replication and reiterated his stand. On the pleadings of the parties, the following issues were framed:- i) Whether the plaintiff has supplied sand, stones, Bajri etc. to the defendant from 10.12.1998 till 22.7.1999 of the value of Rs.2,56,282 and a sum of Rs.2,01,282 is due to the plaintiff, as alleged? OPP ii) Whether the plaintiff has no cause of action? OPD iii) Whether the plaintiff has no locus standi? OPD iv) Whether the suit is bad for non-joinder of necessary parties? OPD v) Relief. The learned Additional District Judge dismissed the suit on 3.12.2003. Hence, the present appeal. 4. I have heard Mr.Bhuvnesh Sharma, learned counsel for the appellant, Mr.Sunil Mohan Goel, learned counsel for the respondent and gone through the record. On behalf of the appellant, it has been submitted that the …5… learned Additional District Judge has not properly appreciated the material on record. The appellant had supplied sand, stones, bajri, boulders, water etc. to respondent from 10.12.1998 to 22.7.1999 worth Rs.2,56,282. The respondent had paid only Rs.55,000, by way of cheque Rs.40,000 and Rs.15,000 in cash. The balance amount of Rs.2,01,182 remained payable by respondent to appellant. The learned Additional District Judge has not properly appreciated oral and documentary evidence more particularly Ext.PW-2/A. Therefore, learned counsel for the appellant has prayed for setting aside impugned judgment, decree and decreeing the suit of the appellant. On the contrary, the learned counsel for the respondent while supporting the impugned judgment, decree has submitted that learned Additional District Judge has properly appreciated the material on record. The appellant has led no legal evidence in support of his claim. The respondent had no privity of contract with appellant. The respondent had engaged Madan Lal as sub-contractor. The appellant has prepared fictitious document Ext.PW- 2/A. It has been rightly disbelieved by learned Additional District Judge. He has submitted that there is no merit in the appeal. …6… 5. PW-1 Amar Nath has stated that he supplied the material to Anil Mahajan, Contractor from 10.12.1998 onwards. He engaged labour and supplied material worth Rs.2,56,000, details shown in Mark ‘A’. The defendant had paid Rs.55,000 out of which Rs.40,000 by way of cheque and balance in cash. He approached the Labour Inspector who passed order Ext.PW-1/A and investigation report Ext.PW-1/B. He issued notice dated 25.8.2001 Ext.PW- 1/C. In cross examination, he has stated that defendant had not issued any receipt in token of having received the material but ‘Munshi’ present on the spot used to issue receipts. The cheque was issued by contractor in his name. He has shown his ignorance that Madan Lal and Anil Mahajan had dispute regarding the payments and a writing of Rs.1,60,000 was prepared. He denied the suggestion that the defendant had no privity of contract with him. 6. PW-2 Madan Lal has stated that plaintiff had an agreement on 9.12.1998 with defendant for supplying sand, stones, boulders and water. The defendant’s (sic) son used to drive the tractors and in token of delivery of material he used to issue receipt on the copy under his signatures which is Ext.PW-2/A. The plaintiff had supplied material worth Rs.2,56,282 to the defendant. The …7… defendant had issued cheque of Rs.40,000 to the plaintiff. They (14 persons) filed claim for payment, the copies of decisions are Ext.PW-2/B and Ext.PW-2/C. Anil Mahajan had settled the matter with him on payment of Rs.1,60,000. The claim of Amar Nath was not included in that amount. He had received Rs.1,60,000 from defendant. In cross examination, he has stated that there was no written agreement between plaintiff and defendant. The copy Ext.PW-2/A was not brought by him rather it was brought by plaintiff. He admitted that he had issued receipt Ext.D-1, he also admitted agreement Ext.D-2. PW-3 Baldev Chaudhary has stated that he worked in the work awarded to defendant, he fixed the shuttering. There was dispute about payment for which they approached Labour Inspector who decided the case a copy of decision is Ext.PW-2/B. 7. DW-1 Anil Kumar has stated that there was no privity of contract between him and plaintiff. He appointed Madan Lal as sub-contractor. A copy of agreement between him and Madan Lal is Ext.D-2. The receipts are Ext.D-1 and Ext.D-3. Madan Lal had executed consolidated receipt Ext.D-4. Madan Lal was responsible for payments of labour and material. In cross examination, he has …8… denied that notice Ext.PW-1/A was served on him. DW-2 Pritam Singh has stated that he was present when agreement Ext.D-2 was executed, Ext.D-1, Ext.D-3 and Ext.D-4 bear his signatures. 8. In Para-3 of the plaint, the appellant has pleaded that respondent had engaged him on 10.12.1998 for supplying sand, bajri, stones, boulders and water and he made the supply from 10.12.1998 to 22.7.1999. He has placed on record Mark ‘A’ details of material supplied to defendant. Mark ‘A’ is the copy of Ext.PW-2/A which has been brought on record in the statement of PW-2 Madan Lal. PW-2 has identified his signatures on Ext.PW-2/A, he has not proved the entries of Ext.PW-2/A. The appellant has led no evidence to prove the entries incorporated in Ext.PW-2/A. The appellant by Ext.PW-2/A has made an attempt to show what was supplied by him and what was received by Madan Lal on behalf of the respondent and the value thereof. The case of the appellant is that he supplied the material to respondent through two tractors and he engaged labour but surprisingly appellant has not examined drivers of the tractors and anyone from the labour to prove that in fact he had supplied material to respondent as claimed by him. PW-2 in his statement has …9… stated that appellant on 9.12.1998 had agreed to supply material to defendant but in the plaint the appellant has pleaded that such agreement was entered on 10.12.1998. There is no written document for supplying material by appellant to respondent. The statement of PW-2 regarding agreement between appellant and respondent for supplying the material on 9.12.1998 is not in conformity with the pleaded case of the appellant. The appellant allegedly supplied the material to respondent from 10.12.1998 to 22.7.1999 for more than seven months. The appellant has not proved by leading legal evidence on record, accounts of such supply. The appellant has stated that the respondent had issued a cheque of Rs.40,000 to him. This cheque could have been a piece of link evidence in order to show privity of contract between appellant and respondent for supplying material but no such cheque has been placed and proved on record. 9. PW-2 Madan Lal along with 13 others including appellant Amar Nath had approached labour authorities raising their grievance of non payment of their dues by respondent. The perusal of Ext.PW-2/B would show that Madan Lal had claimed Rs.45,000 and Amar Nath had claimed Rs.2,01,282 against respondent. In fact, a total …10… claim of Rs.5,26,342 was put forward before the labour authorities. The Labour Inspector vide decision dated 10.10.2000 Ext.PW-2/B recommended for payment of Rs.5,26,343 vide Ext.PW-2/B under Himachal Pradesh Public Works Department Contractors Labour Regulations to the department. The decision dated 10.10.2000 Ext.PW-2/B was reviewed by decision dated 6.8.2001 Ext.PW-2/C and the claim of Amar Nath was refused on the ground that his claim was not covered by the regulations. The defence of respondent is that he engaged Madan Lal sub-contractor for executing the work awarded to him and Madan Lal was responsible for making payments to the suppliers, labour etc. Ext.D-2 is the agreement dated 31.12.2001. In consideration of Rs.1,60,000 Madan Lal had agreed to discharge respondent of all liabilities including liabilities under the awards passed by Labour Inspector and the liabilities arising due to supply of material in connection with the work in question. Madan Lal issued receipts Ext.D-3 and Ext.D-4. Madan Lal in his statement has stated that claim of 13 persons was Rs.2,76,000 which was reduced to Rs.1,50,000 by Labour Inspector. The respondent settled the dispute on payment of Rs.1,60,000 so that the matter is not carried in appeal. …11… He received Rs.1,60,000. The agreement Ext.D-2 is in between Anil Mahajan and Madan lal. There is nothing in the agreement Ext.D-2 to infer that Madan Lal had executed the agreement on behalf of other claimants mentioned in Ext.PW-2/B. The agreement Ext.D-2 is only in between Anil Mahajan and Madan Lal. This supports the contention of respondent that he appointed Madan Lal as sub-contractor who was responsible for making payments to the suppliers, labour etc. and this emerges from the reading of agreement Ext.D-2 also. The settling of claim of Rs.2,76,000 for Rs.1,60,000 by Madan Lal further indicates that he was independently dealing with respondent. It is not the case of Madan Lal that he was authorized by other claimants to forgo the claim and settle the matter for Rs.1,60,000. The perusal of Ext.PW-2/A further indicates that this document was prepared in one go and learned Additional District Judge has rightly not relied this document. The learned Additional District Judge has rightly appreciated the material on record in rejecting the claim of the appellant. The appellant has miserably failed to prove his claim against respondent by leading legal evidence. 10. No other point was urged. …12… 11. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. October 17, 2008 ( Kuldip Singh ) (soni) Judge.