1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1266 OF 2003 M/s.Offshore Industrial Construction Pvt.Ltd; 22, Udyog Khetra,Mulund Link Road, Mulund, Mumbai 400 080. Plaintiff versus Rosma Engineering Construction, TPS-4/820, Thalap, Kanoor, Kerala. Defendant Mr.Heeralal Chaturvedi i/by Chaturvedi & Chaturvedi for plaintiff. CORAM : A.S.OKA, J. DATE OF RESERVING THE JUDGEMENT : 4th December 2009 DATE OF PRONOUNCING THE JUDGEMENT : 6th January 2010 JUDGEMENT :- 1. The plaintiffs have filed the present suit for recovery of a sum of Rs.12,55,965=21 Ps. with further interest thereon @ 18% p.a. from the date of institution of the suit till realization. 2. The case in the suit is that the defendants were working as sub 2 contractors of the plaintiffs in various projects undertaken by the plaintiffs. The plaintiffs had entered into an agreement dated 12th February 2001 with Karnataka Water Supply and Drainage Board. Under the said agreement, the plaintiffs were given work of laying down water pipeline from Taranagar to Sandur on the terms and conditions incorporated in the said agreement. The plaintiffs were under an obligation to complete the work on or before 12th August 2001. 3. The plaintiffs had granted labour contract to the defendants for laying and testing of 14 inch M.S. underground pure water pipeline from Taranagar to Sandur on agreed terms and conditions. 4. According to the case of the plaintiffs, the defendants submitted seven estimated bills to them for the total value of Rs.59,00,650/- for the work entrusted to them. However, the plaintiff certified the bills for an amount of Rs.46,64,371/-. As per the terms and conditions agreed before commencement of the work by the defendants, on the request of the defendants, the plaintiffs made payment of a sum of Rs. 39,86,116/- to the defendants. 5. Even after payment of the said amount, the defendants could not complete their work and due to negligence on the part of the 3 defendants, the plaintiffs could not complete the project within the time limit fixed under the agreement. When this issue was raised by the plaintiffs with the defendants, without completing the work, the defendants left the site. Therefore, the plaintiffs were forced to get the work completed by engaging another agency at extra cost. It is alleged that due to the delay on the part of the defendants, the Karnataka Water Supply and Drainage Board delayed payment of amount of Rs.45.00 lakhs. 6. The case of the plaintiffs is that as per the work done by the defendants, only a sum of Rs.27,30,151/- was payable to the defendants. Thus, according to the plaintiffs, an amount of Rs. 12,55,965=41 Ps. was paid in excess to the defendants. It is alleged that the said excess payment was made as certain bills were fabricated by the defendants. The present suit is filed for recovery of the said amount which was allegedly paid in excess to the defendants. 7. On 2nd November 2007 the suit was ordered to be transferred to the list of "undefended suits". On 12th November 2009 the suit was shown under the caption "undefended suits for ex-parte decree". The plaintiffs were permitted to adduce evidence. The plaintiffs have filed an affidavit in lieu of examination-in-chief of 4 Mr.G.B.Mallikarjunaiah, its Account Officer. The plaintiffs have produced true copies of six documents. The evidence of the said witness was recorded in the Court on 4th December 2009. None appeared for the defendants and, hence, there was no cross examination of the said witness. 8. A true copy of the agreement between the plaintiffs and Karnataka Water Supply and Drainage Board has been produced and proved. The same has been marked as Exhibit-P-4. The said agreement proves that the work was to be completed within six months from 12th February 2001. 9. Seven bills submitted by the defendants in the total sum of Rs. 59,00,650/- have been produced on record and the same have been marked as Exhibit-P-5 (collectively). The documents at Exhibit-P-6 shows that all the seven bills were verified and the entitlement of the plaintiffs was to a sum of Rs.27,30,151/-. There is no challenge to any of these documents by the defendants. There is no challenge to the case made out by the plaintiffs that a total sum of Rs.39,86,116/- was paid by the plaintiffs to the defendants and thus there is excess payment of Rs.12,55,965=41 Ps.. Thus, the plaintiffs have established their claim for the principal amount. 5 10. The plaintiffs have prayed for further interest @ 18% p.a.. There is no agreement produced on record to show that the defendants have agreed to pay interest on the amount at a particular rate. However, the transaction between the parties is a commercial transaction. Hence, interest @ 8% p.a. deserves to be granted. 11. Hence, I pass following order :- (A) There will be a decree in terms of prayer clause (a) with a modification that further interest will be payable @ 8% p.a. from the date of institution of the suit till realization of the amount; (B) The plaintiffs will be entitled to refund of the court fees as per Rules. (A.S.OKA, J.)