THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 700 OF 2001 Dated: 24.02.2011 Between: Danduri Pullaiah and another …APPELLANTS AND The Municipal Commissioner, Ongole and others …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.700 OF 2001 JUDGMENT: The plaintiff in O.S.No.1 of 1989 on the file of the Principal Subordinate Judge, Ongole, is the appellant herein. 2. The suit was filed for recovery of a sum of Rs.86,150/- being value of the work done by the plaintiff when the work said to have been entrusted by the 1st defendant on the eve of the visit of the then Hon’ble Chief Minister on November, 1979. The part of the work was said to have been completed and the bills were not paid to the plaintiff on the ground that the work entrusted was unauthorised and therefore, there is no liability for any of the defendants to pay the money. The defendants contended that the suit is also barred by time. 3. The 1st defendant, who is the beneficiary of the work and in- charge of the maintenance of the municipal area, has admitted the entrustment of the work and also the completion of part of the work by the plaintiff and the value of the work, which is said to have been done by the plaintiff is said to be a sum of Rs.13,930/- after excluding the value of 200 bags of cement supplied by the Municipality. It was further pleaded that correspondence was made with the Government and the Government periodically asked to stop the payment as the work was unauthorised and procedure for entrustment of the work was not valid. It was also pleaded by the 1st defendant that only a sum of Rs.13,930/- is payable and it was specifically pleaded in the written statement that the Superintending Engineer, Public Health, Guntur in his memo No.430/Con/Estt/80-49 dated 07.05.1985 has recommended that the value of the work entrusted was Rs.13,930/- after deducting the costs of the cement supplied by the Municipality to the plaintiff. Therefore, the defendant pleaded that it is not liable to pay interest on the amount. The other defendants pleaded that there is no privity of contract and therefore, they are not liable to pay the amount. 4. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1. Whether the plaintiff is entitled to the amount as claimed in the suit representing the value of the work done or by way of damages? 2. Whether the plaintiff is entitled to claim any interest? 3. Whether the plaintiff is only entitled to Rs.13,930/- after deducting the cost of cement supplied by the Municipality as contended to in the written statement? 4. Whether there is any privity of contract? 5. To what relief? 5. On behalf of the plaintiff PW.1 was examined and marked Exs.A1 to A3. On behalf of the defendants DW.1 was examined and no documents were marked. 6. After considering the evidence on record, the learned Senior Civil Judge found that the plaintiff will be entitled to a sum of Rs.13,930/- only, but however, dismissed the suit as has been barred by time. Aggrieved by the said judgment, the present appeal is filed. 7. The points that arise for consideration are: 1. Whether the plaintiff is entitled for the entire suit claim with interest? 2. Whether the suit is barred by time? 3. Whether the judgment and decree passed by the learned Senior Civil Judge, Ongole, is legal and sustainable? 8. So far as the entrustment of the work to the plaintiff and completion of the part of the work done by him is concerned, there is no dispute about the defendants are trying to avoid the liability on technical grounds of not following the procedure while awarding the work to the plaintiff. It appears that several works were said to have been entrusted to several contractors on the eve of the visit of the then Hon’ble Chief Minister. It is not a case where the Municipality did not get any benefit from the work done by the plaintiff. Even if, any of the officers have not followed the procedure and acted as per the instructions of the superiors, still the Municipality cannot deny the benefit of the work done by the plaintiff and avoid the payment under the principles of contract. No body shall be allowed to take advantage of their own wrong. Evidently the wrong, if any, was done by the employees of the defendant and not by the plaintiff. That is the reason why the lower Court found that under case of liability, a sum of Rs.13,930/- is payable. 9. So far as the quantum of the work is concerned, a detailed report is said to have been furnished by the Department and on the basis of it the amount payable to the plaintiff is fixed at Rs.13,930/-. The lower Court has discussed the merits of this claim and also considering the M-books and other material found that the contentions of the defendants about the quantum of the amount payable is only Rs.13,930/-. There is no other material filed by the plaintiff to show that he had made purchases or supplied any goods more than worth mentioned by the 1st defendant. The 1st defendant has also not challenged the finding of the Court about the liability and admitted the same. 10. The question before the Court is whether the suit is barred by time. As could be seen from the plea taken by the defendants to deny the claim of the plaintiff is not appreciable having already taken the services and having addressed several letters to the higher authorities for payment of the money. However, the lower Court has taken into consideration that the period of limitation starts from the date of notice- Ex.A2, which is dated 20.01.1983 and therefore, the suit is barred by time under Article 113 of the Limitation Act. In fact under the provisions of the Limitation Act, a fresh promise to pay the money will not absolve the liability of the defendants from payment of the money and unless there is a specific denial of liability to pay the money and refusal to pay the money, the defendants cannot escape the liability as already stated in the written statement. The defendants have made a specific plea that a letter was addressed by the Chief Engineer on 07.05.1985 recommending for payment of the value of the work done by the plaintiff. Therefore, by 07.05.1985 the defendants admitted the liability to pay the money and subsequently there was no denial or refusal of the amount payable by the 1st defendant. Therefore, the earlier reply notice Ex.A2 relied on by the defendants to hold that the suit is barred by time cannot be taken into consideration. At all times, the 1st defendant, in fact, bonafidely and honestly making efforts to see that the money is paid by the Government. But, however, on technicalities it was not done. Therefore, when the letter dated 07.05.1985 clearly recommends the case of the plaintiff for payment of Rs.13,930/- and till this date no refusal is made by the concerned Department, it cannot be said that the cause of action has arisen to file the suit to attract Article 113 of the Limitation Act. Therefore, I find that the plaintiff is entitled for the amount and the defendants having received the benefit of the work cannot deny the same. Therefore, the suit of the plaintiff is decreed for a sum of Rs.13,930/- with interest at 12% from the date of suit till the date of decree and 6% subsequent interest till realisation. In the result, the Appeal is partly allowed. The plaintiff shall bear his own costs in this appeal and he will be entitled to the proportionate costs in the lower Court. _________________________ N.R.L.NAGESWARA RAO, J February 24, 2011 Ivd THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.3502 OF 2000 December 08, 2010 The defendant in O.S.No.2 of 2002 on the file of the Senior Civil Judge, Hindupur is the appellant herein. The suit filed for recovery of Rs.4,33,820/- being the principal and interest due on a promissory note dated 15.06.1999 executed by the defendant for a sum of Rs.2,75,000/- payable with interest at 21%. In spite of repeated demands, the defendant did not pay the money. He has also given an undertaking that he will pay the money and executed the letter on 26.03.2001, but failed to do so. Hence, the suit. The defendants 3 and 5 filed a written statement. The defendants also further claimed that he is an agriculturist and claiming the interest at 21% is excessive. On the basis of the pleadings, the following issues are framed for trail. On behalf of the plaintiff PW.1 is examined and marked Ex.A1 and A2. On behalf of the defendant, DW.1 is examined. No documents are marked. After considering the evidence on record, the Junior Civil Judge dismissed the suit of the plaintiff and aggrieved by the said judgment, the present appeal is filed. The points that arise for consideration: 1. Whether the suit promissory note is not supported by consideration? 2. Whether the interest claimed by the plaintiff is excessive? 3. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? Points: There is no dispute about the execution of the promissory note of Ex.A1 by the defendant. Though the execution of Ex.A2 is denied, the relevancy of Ex.A2 is not necessary since execution of the promissory note is admitted. It is not a case where the defendant has taken a blank paper theory and on the other hand, his specific plea is that on a promise that the money will be paid later he executed a promissory note. Evidently, the defendant is a innocent man and said to have having some business and in such circumstances, it is difficult to believe that without receiving any consideration he would have executed the promissory note- Ex.A1. Even otherwise after execution of the promissory note no notice was given by the defendant calling upon the plaintiff to return the promissory note or to pay the money as promised under Ex.A1. Merely because the plaintiff and defendant are related distantly he does not mean that at faith a promissory note were will be would have been executed by the defendant. The evidence of PWs.1 and 2 accept with the presumption under Section 118 of Negotiable Instrument Act clearly establishes the liability of the defendant. The learned counsel for the appellant pleads that interest of 21% was claimed by the plaintiff and it is excessive and injurious. According to the case of the plaintiff, the defendant is running a rice and dall mill and the money was borrowed for business purpose and therefore, the interest charged is reasonable assuming for making that even if the defendant is not an agriculturist the Court has to still consider whether the charge of interest at 21% reasonable. There is no proof that the market rate of interest prevailing on that date is 21%. There is also no proof that the defendant has made any profit from the business. Therefore, in view of the above circumstances, I find charging of interest at 21% by the plaintiff and granting of the same by the lower Court appears to be is injurious and onerous and taking into consideration the plea of the appellant I feel interest of justice should meet to be interest is granted at 15% instead of 21% interest granted by the lower Court. With the above modification, the decree and judgment of the lower Court is confirmed. Accordingly, the suit of the plaintiff is decreed for a sum of Rs.2,75,000/- with interest at 15% from 15.06.1999 to 15.03.2002 and subsequent interest as granted by the lower Court. The Appeal is partly allowed. Each party do bear their own costs in the appeal.