1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.292 OF 2005 Delcon Engineering, Civil Contractors, Mulla Mansion, Ponda, Goa. …. Appellant V/s State of Goa, represented by Executive Engineer, Works Division XII, Irrigation Department, Fatorda, Margao, Goa. …. Respondents Mr. C. Mascarenhas, Advocate for the Appellant. Mr. M. Salkar, Government Advocate for the Respondent. CORAM : F.M. REIS, J. DATE : 9th MARCH, 2011 JUDGMENT : The above appeal challenges the order dated 7/04/2005 passed by the learned Additional District Judge, South Goa, Margao in Civil Miscellaneous Application No.66/2004 in Special Civil Suit No.221/1991. 2. The application came to be filed by the respondent under Section 144 of the Civil Procedure Code for restitution of amount as according to the respondent, the appellant paid pursuant to order passed in the proceedings an excess amount to the tune of 2 Rs.5,17,197/-. The said application was opposed by the appellant on two grounds. The first ground was that the application itself was not maintainable. The next ground was disputing the amount, as according to the appellant, the amount if at all they would be liable to pay to the respondent would work out to Rs.1,37,353/-. 3. The learned Counsel for the appellant has assailed the impugned judgment and submitted that the learned Judge has not at all considered the contention of the appellant to the effect that there was no unconditional payment effected by the respondent to the appellant while depositing the amount to obtain the stay of the impugned award. The learned Counsel further submitted that even though the amounts were collected by the appellant, the same were on furnishing of a Bank Guarantee and there was no absolute payment in favour of the appellant. The learned Counsel further submitted that any amounts paid by the respondent are to be adjusted first towards interest and thereafter towards the principal amount. The learned Counsel further submitted that as he had suffered substantial expenditure for obtaining the Bank Guarantee all these aspects would have to be considered for the purpose of determining the actual amount to be paid by the appellant to the respondent. The learned Counsel further submitted that all these 3 contentions which were raised have not at all been dealt with by the learned Judge while passing the impugned order. The learned Counsel, however, did not assail the finding of the learned Judge, that the application filed by the respondent was maintainable. 4. On the other hand, Mr. Salkar, the learned Government Advocate appearing for the respondent has pointed out that though no such reasons have been given, nevertheless, the learned Judge has rightly allowed the application filed by the respondent under Section 144 of the Civil Procedure Code. The learned Counsel took me through the statement at page 47 and submitted that there is calculation error committed by the respondent while forwarding the claim by the respondent before the learned Judge, which has to be rectified. 5. Having heard the learned Counsel and on perusal of the records, I find that the learned Judge has not considered the submissions advanced by the appellant with regard to their contention to the effect that the payments which were effected by the respondent were conditional payment and the amounts were to be withdrawn on furnishing bank guarantee. The learned Judge has not considered up to when the interest would cease to be payable 4 and ascertain the rate of interest at which the amount was liable to be paid by the respondent to the appellant. The aspect as to whether the payment which has been effected is to be adjusted first towards the interest and thereafter towards the principal amount has also not been considered. 6. Considering the submissions of the learned Government Advocate to the effect that even the calculation sheet produced by the respondent there is an error committed by them, which has to be corrected, I find that in the interest of justice, the learned Judge should be directed to decide the application afresh to determine the actual amount payable by the appellant to the respondent in accordance with the awards passed in the proceedings. The learned Government Advocate also submitted that he would file a fresh statement before the learned Trial Judge. 7. In view of the above, I find that the matter deserves to be remanded for fresh adjudication as to the actual amount payable by the appellant to the respondent after hearing both the parties. 8. In view of the above, I pass the following order: 5 O R D E R (i) The appeal is partly allowed. (ii) The impugned order directing the payment of a sum of Rs.5,73,197/- together with interest at the rate of 18% from 1/04/2002 up to the actual payment is quashed and set aside. (iii) The finding of the learned Judge that the application filed by the respondent is maintainable stands confirmed. (iv) Learned Judge is directed to decide the actual amount payable by the appellant to the respondent afresh after hearing both the parties in accordance with law, without being influenced by any observations made herein. (v) All the contentions raised by the parties are left open. (vi) The appeal stands disposed of accordingly with no order as to costs. (vii) The parties are directed to appear before the learned Judge on 11/04/2011 at 2.30 p.m. F.M. REIS, J. NH/-