THE HONOURABLE SRI JUSTICE G.CHANDRAIAH A.S.NO:1095 OF 2003 & A.S.NO:2816 OF 2004 & CROSS OBJECTIONS. DATE:7.2.2011. Between: 1.THE STATE OF A.P REP BY THE COLLECTOR, WEST GODAVARI & OTHERS. APPELLANTS. & KOPPARTHI SATYANARAYANA & ANOTHER. RESPONDENTS. THIS COURT MADE THE FOLLOWING: THE HONOURABLE SRI JUSTICE G.CHANDRAIAH A.S.NO:1095 OF 2003 & A.S.NO:2816 OF 2004 & CROSS OBJECTIONS. COMMON JUDGMENT: A.S.No:1095 of 2003 is filed by the appellants aggrieved by the judgment and decree dated 11.10.2002 in O.S.No:67 of 1994 on the file of the learned Senior Civil Judge, Bhimavaram and A.S.No:2816 of 2004 is filed by the appellants aggrieved by the judgment and decree dated 22.4.2003 in O.S.No:62 of 1995 on the file of the learned Senior Civil Judge, Bhimavaram. The appellants are defendants and the respondents are the plaintiffs in the respective suits. Since the issue involved in both the suits, is one and the same, they are being disposed by a common judgment. The status of the parties will be referred to as arrayed before the Court below, for the sake of convenience. The brief facts leading to file the appeal in A.S.1095 of 2003, are: The suit in O.S.67 of 1994 was filed by the plaintiff for recovery of an amount of Rs.2,40,637-20 with subsequent interest on Rs.1,46,730.00 till the date of payment and for costs of the suit. The averments in the plaint in O.S.67 of 1994 are that in the month of March, 1990, the 2nd defendant called for tenders for re improvement of Ruddrajakodu Drain from K.M. 11.00 to 12.20 for Rs.4,22,566/- in C.R.No:21/90-91. The plaintiff submitted a tender for Rs.4,35,000/- and the same is accepted by the 2nd defendant with an excess of 8.45%. Both parties entered with an agreement No:49, SE/90-91, dated 30.4.1990. The work had to be completed within three months from the date when the site is handed over. The site was handed over to the plaintiff on 22.4.1990 and as per the agreement, the work had to be completed by 21.7.1990. During the year 1990, there were heavy rains and hence, it was not possible to go on with work. In the month of June, 1990, further work was done by the plaintiff. Then the rainy season started and work could not be proceeded. The Department issued a notice stating that the work so far done would be finalized and the payment would be made. The Department also informed him that the work would be handed over to C.E.R.P. Circle, Eluru. The total value of work done by the plaintiff, came to Rs.2,28,665/-. L.S. Part I Bill was passed for Rs.46,172/- as noted on page 23 of M.B.-460 A/DDB. A cheque for Rs.45,249/- was issued bearing No:926270 VR 1376, dated 30.6.1990 after deducting the income tax. By the date of L.S. Part II Bill, the final bill was recorded on 16.6.1991 for the entire amount due at page 35/MB 460 A/DDB. But, for want of funds, the bill was passed only for Rs.45,623/- and the Cheque No:078216 VR.No:2202, dated 31.3.1992 was issued only for Rs.41,424/- after deducting income tax. For the work doe, the plaintiff has to still get an amount of Rs.1,36,870/-. The plaintiff gave earnest money deposit of Rs.3,710/- comprising of D.D.No:581343, dated 31.3.1990 in S.B.H. Chinamiram and another of Rs.6,150/- under D.D.No:903623, dated 7.4.1990 in S.B.H. Bhimavaram. Thus, a total sum of Rs.1,46,730/- was due from the defendants and the plaintiff is also entitled to interest thereon at 24% p.a. from 1.4.1992 to the date of payment. Notice under section 80 C.P.C was issued to the defendants on 25.6.1994 and they in turn received the same on 27.6.1994. The 3rd defendant sent a letter, dated 5.8.1994 bearing Lr.No:Sup-914 M in which he stated that certain allegations were received and that the matter was under a detailed enquiry by superior officers and that confidential instructions were received on the issue relating to the work and necessary action will be taken on receipt of final orders from the higher authorities. The defendants filed the written statement denying the averments made in the plaint. Basing on the pleadings, the Court below framed the following issues: 1.Whether the plaintiff is entitled to the total sum of Rs.1,46,730/-. 2,Whether the plaintiff is entitled for interest at 24% p.a. on 1,46,730/- from 1.4.1992 till realization. 3.Whether the notice issued by the plaintiff is not under section 80 C.P.C. 4.Whether the plaintiff failed to approach the Arbitrator initially and this Court has no jurisdiction. 5.Whether the defendants are entitled to compensatory costs. On behalf of the plaintiff, P.w.1 was examined and Exs.A1 to A10 were marked and on behalf of the defendants, D.w.1 was examined and Exs.B1 was marked. Considering the oral and documentary evidence, the Court below answered all the issues in favour of the plaintiff and consequently, decreed the suit by its decree and judgment dated 11.10.2002. The decree in the said suit reads as under: 1.The defendants do pay to the plaintiff a sum of Rs.2,40,637-20 with subsequent interest at 6% p.a. on Rs.1,46,730/- from the date of the suit till the date of realization. 2.the defendants do also pay to the plaintiff a sum of Rs.12,029-50 towards costs of the suit. Having aggrieved by the same, the defendants filed A.S.1095 of 2003. A.S.No:2816 of 2004 is filed by the appellants aggrieved by the judgment and decree dated 11.10.2002 in O.S.No:62 of 1995 on the file of the learned Senior Civil Judge, Bhimavaram. The brief facts leading to file the present appeal, are: The suit in O.S.62 of 1995 was filed by the plaintiff for recovery of an amount of Rs.2,15,776/- and for subsequent interest and for costs of the suit. The averments in the plaint in O.S.62 of 1995 are that the plaintiff is a registered Class II Contractor doing works in I & P Department. The 3rd defendant called for tenders for the improvements of Rudrayakodu drain in the year 1990. The plaintiff submitted a tender on 12.4.1990 to the 3rd defendant to do the said contract work of improvements to Rudrayakodu drain from K.M. 12.200 to 14.000. The tender of the plaintiff was accepted by the 3rd defendant. The plaintiff entered into an agreement No:53 SE/90-91 dated 30.4.1990 with the 3rd defendant to do the said contract work at a cost of Rs.4,91,858/-. The plaintiff has made earnest money deposit of Rs.11,500/- at the time of executing the said agreement. As per the terms of the said agreement, the plaintiff has to complete the said work by 21.7.1990. The plaintiff completed the said work within the stipulated period by about 15.7.1990 to the utmost satisfaction of the defendant authorities. The 4th defendant has also done the check measurements and had taken the final levels in respect of the said work done by the plaintiff and prepared final bill payable to the plaintiff in respect of the said work. As per the said final bill, the plaintiff is entitled to receive an amount of Rs.2,17,182/- towards the value of the said work done by him. From out of the said bill amount, in come tax has to be deducted and the remaining amount is payable to the plaintiff. The 4th defendant made a part payment of Rs.45,934/-, and Rs.42,057/- to the plaintiff on 30.6.1990 and 31.3.1992 respectively from out of the said final bill amount payable to the plaintiff. Still, the plaintiff has to get an amount of Rs.1,26,171/- besides the earnest money deposit of Rs.11,500/-. The plaintiff requested the 4th defendant many a time to pay the said balance amount of the final bill and the earnest money deposit. But, the 4th defendant postponed the same on the pretext of non availability of funds from the 1st defendant. Thereupon, the plaintiff got issued a registered notice as contemplated under section 80 C.P.C on 17.9.1994 to the defendants demanding for payment of the amount of Rs.1,26,171/- payable in respect of the work done and Rs.11,500/- payable towards the earnest money together with interest at 24% p.a. from the date of final bill. The defendants received the said notice and the 4th defedant sent a reply stating that the matter is under a detailed enquiry and that necessary action will be taken on receipt of final orders from his higher authorities. The defendants have so far not paid the said amounts due to the plaintiff. The defendants filed the written statement denying the averments made in the plaint. Basing on the pleadings, the Court below framed the following issues: 1.Whether the plaintiff is entitled for suit claim. 2.Whether the plaintiff is entitled for any interest as claimed. 3.Whethr this Court has no jurisdiction to try the suit. 4.Whether the suit is bad for non issuance of section 80 C.P.C as contemplated under section 80 C.P.C. 5.Whether the defendants are entitled for compensatory costs under section 35A C.P.C. 6.To what relief. On behalf of the plaintiff, P.w.1 was examined and Exs.A1 to A10 were marked and on behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B3 were marked. Considering the oral and documentary evidence, the Court below answered all the issues in favour of the plaintiff and consequently, decreed the suit by its decree and judgment dated 22.11.2003. The decree in the said suit reads as under: 1.The defendants do pay to the plaintiff a sum of Rs.2,15,776/- with subsequent interest at 6% p.a. on Rs.1,37,671/- from the date of the suit till the date of realization. 2.the defendants do also pay to the plaintiff a sum of Rs.13,278/- towards costs of the suit. Having aggrieved by the same, the defendants filed A.S.2816 of 2004. Heard the learned counsel and perused the material available on record. At this stage, the learned counsel for the respondent-plaintiff placed before this Court a copy of the judgment dated 5.11.2005 in A.S.Nos:848, 849 and 850 of 1999. A perusal of the same reveals that the said appeals were filed by the Department aggrieved by the decree and judgment, dated 1.7.1998 in O.S.Nos.55, 56 and 57 of 1994, which were decreed by the learned Senior Civil Judge, Bhimavaram. On considering the facts of the case, this Court by judgment dated 5.11.2005 rendered a common judgment, a relevant portion of which is as under: “Having regard to the said fact once the department failed to comply the demand made under Ex.A2 notice, on expiry of period specified therein plaintiffs are entitled to interest from 28.6.1994 (date of notice), which was served on the defendnt on 29.6.1994. Therefore, plaintiffs are not entitled to interest at 24% p.a. as claimed, but they are entitled to interest at 12% p.a.on expiry of notice period till filing of the suit and future interest at the rate of 6% i.e. from the date of suit till the date of decree and from the date decree till the date of realization.” In the instant case, in so far as the suit in O.S.62 of 1995 is concerned, the notice under section 80 C.P.C was issued by the plaintiff on 17.9.1994 and the same was received by the defendants and in so far as the suit in O.S.67 of 1994 is concerned, the notice under section 80 C.P.C issued by the plaintiff on 25.6.1994 was received by the defendants on 27.6.1994. Having regard to the facts and circumstances of the case, the present appeals are disposed of in terms of the decree and judgment made by this Court in A.S.Nos.848, 849 and 850 of 1999, dated 5.11.2005. It is made clear that the common judgment in A.S.Nos.848,849 and 850 of 1999, dated 5.11.2005 shall form part of this record. In view of the disposal of the main appeals in terms of the common judgment of this Court as referred to above, no further orders need be passed on the cross objections and accordingly, they are closed. No order as to costs. _________________ Justice G.Chandraiah. Date:7.2.2011 Gurc. THE HONOURABLE SRI JUSTICE G.CHANDRAIAH A.S.NO:1095 OF 2003 & A.S.NO:2816 OF 2004 & CROSS OBJECTIONS. DATE:7.2.2011.