First Appeal No.239 of 2007 Against the judgment and decree dated 20.01.2006 passed by Sri B.K.Singh, Sub Judge VII, Biharsharif, Nalanda in Money Suit No.58 of 1999. STATE OF BIHAR & ORS. ………. Defendants-Appellants Versus CHANDRADEO PRASAD ……… Plaintiff-Respondent ******** For the Appellants : Mr. Sanjeet Kumar, J.C. to S.C. 9 Mr. Shashi Shekhar, Advocate For the Respondent : Mr. Manish Sahay, Advocate Dated : 29th day of June, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The defendants have filed the present First Appeal against the judgment dated 20.01.2006 and the decree following thereupon signed on 16.02.2006 by Sri B.K.Singh, the learned Subordinate Judge VII, Biharsharif, Nalanda in Money Suit No.58 of 1999 decreeing the plaintiff- respondent’s suit for realization of money. (2) The plaintiff-respondent, Chandradeo Prasad filed the aforesaid suit for realization of Rs.2,85,563 alleging that the defendant no.5 in the year 1996-97 issued tender for emergency repairing of road from 33-34 kilometers of Ekangarsarai road and 38-42 kilometers of the Mungeshwar Sahoo, J. - 2 - same road. The tender of the plaintiff was accepted and two agreements were executed by the parties on 04.04.1996. One agreement is no.2F- 2/96-97 and the other is 10F-2/96-97. The amount of the first contract was for Rs.99,800 and the second was for Rs.99,701. The plaintiff completed the repairing works of the said roads within 15 days and the department of the respondent examined the work of the plaintiff and finding the work to be satisfactory signed the bill. Both the bills were sent to the defendant no.5 for payment. In spite of repeated demands, the defendant no.5 did not pay the bills. Thereafter, the plaintiff sent notice under Section 80 C.P.C. and then filed the present suit. (3) The defendants appeared and filed written statement accepting the work done by the appellant. The only objection taken by them in the written statement is that the measurement books were not signed by the concerned Engineers, therefore, the plaintiff’s case cannot be accepted. The plaintiff filed writ application before the Hon’ble High Court and on the order of High Court, Liability Committee was constituted. The Liability Committee enquired the work of the plaintiff and rejected the claim, therefore, the suit is not maintainable. They further stated that there was no allotment made. (4) On the basis of the aforesaid pleadings, the learned Court below framed various issues and after trial came to the conclusion that since the defendants-appellants have admitted the work done by the plaintiff, they are liable to pay the cost of the construction work. However, the learned Court below did not accept the claim of the plaintiff with regard to interest at the rate of 16% and granted only 6% interest per annum. - 3 - (5) The learned counsel for the appellant raised only one question that when the measurement book was not signed by the concerned Engineers, who measured the work, the same was not reliable. Therefore, the learned Court below has wrongly decreed the plaintiff’s suit. Further, the Liability Committee has already rejected the claim of the plaintiff. On this ground, the learned counsel submitted that the impugned judgment and decree are liable to be set aside. (6) On the other hand, the learned counsel appearing on behalf of the plaintiff-respondent submitted that the appellants have admitted the allegation made by the plaintiff regarding the work done by him. If measurement book was not signed by the concerned Engineers, it was fault on the part of the Engineers and for that the plaintiff’s claim cannot be denied. The learned counsel further submitted that the appellants have not brought on record the decision of the Liability Committee. The learned Court below has rightly after considering all the materials available on record decreed the plaintiff’s suit. Therefore, the appeal filed by the State is liable to be dismissed. (7) In view of the above contentions of the parties, only point arises for consideration is as to whether because the measurement book has not been signed by Executive Engineer the claim of the plaintiffs can be negatived? (8) In the present case, from the pleadings of the parties, it is clear that the appellants admitted the pleading of the plaintiff that there was agreement between them and the plaintiff also completed the work. There is no denial that in completion of the work any delay was caused or that the work done by the plaintiff was unsatisfactory. The plaintiff has produced the agreements which have been marked as - 4 - Exhibit-1 and 1/a. Exhibit-2 and 2/a are the measurement books and Exhibit-3 series are the bills submitted by the plaintiff. So far these Exhibits are concerned, it may be mentioned here that the defendants- appellants have admitted this fact. There is no denial. Therefore, it requires no elaborate discussion. The only objection is that the measurement books were not signed by the Executive Engineers. (9) So far this question is concerned, it is pure question of law. In 2007(1) P.L.J.R.787(Ram Lakhan Yadav vs. State), this Court has held that the Executive Engineer was not an employee of the plaintiff and he was not in the control of the plaintiff. No reason has been assigned as to why he did not sign the measurement book and, therefore, it cannot be used against the plaintiff. It appears that in that case also, only the same ground was raised by filing counter-affidavit in the writ application which was filed by the contractor. The same view has been taken again in 2007(1) P.L.J.R.264(Harbanshi Lall vs. State of Bihar), at page 258(Bishwanath Prasad vs. State of Bihar) and at page 273(Ram Pravesh Prasad vs. State of Bihar). From perusal of these decisions, it appears that in those cases also, Liability Committee denied the payment to the applicant. This Court found that there was no denial of execution of agreement and also that no work was done or that incomplete work was done. In the present case also, execution of agreement between the parties is admitted. Completion of work to the satisfaction of the appellants is admitted. Completion of work within time is also admitted. In such circumstances, there is no reason as to why the Liability Committee would have denied the payment to the plaintiff. - 5 - (10) Considering the above facts and circumstances of the case, I find that the learned Court below has considered all these aspects of the matter and arrived at a right conclusion. The points arise by the appellant are not acceptable and on that ground, the impugned judgment and decrees cannot be interfered with. (11) In the result, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. No order as to costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 29th June, 2011 Saurabh/N.A.F.R.