RSA No.3624 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3624 of 2008(O&M) Date of decision: 1.12.2008 State of Haryana and others ......Appellants Versus M/s Goel Projects Private Limited ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ashish Sharma, Deputy Advocate General, Haryana for the appellants. Rakesh Kumar Garg, J. CM No.10765-C of 2008 For the reasons mentioned in the application, the prayer made is allowed and the applicant-appellants are permitted to make up the deficiency in the Court fee. RSA No.3624 of 2008 Briefly stated, the case of the plaintiff is that it was allotted a work of construction of two number RCC underground clear water tanks at Bhiwani vide letter No.210688 dated 5.11.1998. As per terms and conditions of the contract, the securities amounting to Rs.2,72,635/- were deducted by defendants No.2 and 3 from the running account bills of the plaintiff-Company. Defendants No.2 and 3 released the security amount in parts i.e. Rs.4,730/- adjusted against cement and Rs.1,05,000/- paid on 19.2.2001 and Rs.51,235/- paid on 30.3.2001 to the plaintiff-Company. In this manner, the balance amount of security deposits of Rs.1,11,669/- was RSA No.3624 of 2008(O&M) 2 withheld and remained outstanding against the defendants which they have not paid to the plaintiff-Company till this date. The plaintiff made several oral as well as written requests to defendants No.2 and 3 vide its letter dated 30.8.2001 and registered notice dated 12.10.2002 but in spite of that the defendants have not paid the balance security amount of Rs.1,11,669/- outstanding against the defendants. Thus, the defendants are illegally withholding the amount of the plaintiff-Company. So, the plaintiff- Company is entitled to recover the amount of Rs.1,48,519/- including interest @ 18% per annum from 1.4.2001 to 26.1.2003 along with future interest @ 18% per annum from the date of institution of this suit till its realisation. The plaintiff served notice under Section 80 CPC to the defendants despite that no action was taken by the defendants. Therefore, the necessity to file the present suit arose. Notice of the suit was given to the defendants who appeared and filed written statement taking the ground that coincidentally, the plaintiff was also executing another work costing Rs.138.90 lacs “laying of RCC NP 3 type sewer from CIA Staff quarters to Dinod Gate Bhiwani” under agreement No.BPHD/2/651/96 and an amount of Rs.15,09,655/- was found to be paid in excess against that work on account of payment of premium of non scheduled item. Accordingly, the recovery of Rs.13,97,986/- was effected from the available amount lying with the department against that work and the balance of Rs.1,11,669/- against the work of Rs.1,11,669/- was effected from the dues under the provisions of clause 22-A of the contract agreement. The security amounting to Rs.2,72,635/- was deducted from the running account bills of the plaintiff under the contract agreement and the same stand released by making payment of Rs.1,60,966/- and adjustment against recovery of another work, i.e. RSA No.3624 of 2008(O&M) 3 agreement No.BPHD/2/651/96 laying of RCC NP3 sewer from CIA staff quarter to Dinod Bhiwani. The alleged payable amount of Rs.1,11,669/- has already been paid to the plaintiff by making adjustment towards recovery against another work under agreement No.BPHD/2/651/96 “laying of RCC Pipe Sewer from CIA Staff quarter to Dinod Gate, Bhiwani. Besides this, legal plea regarding jurisdiction of Court has also been taken. Both the parties led oral as well as documentary evidence in support of their claim. After hearing both the sides, the Courts below decided both the issues in favour of the plaintiff and decreed the suit. Feeling aggrieved therefrom, the defendants have filed the present appeal challenging the judgment and decrees of the Courts below. After hearing learned counsel for the appellants, I find no merit in this appeal. Admittedly, the disputed amount is sought to be recovered from the plaintiff on account of adjustment towards recovery against another work. The case of the appellant is that the said deduction has been made as per the Clause 22-A of the contract agreement Ex.D-8 according to which the deduction could be made from any other account of the contractor. Clause 22-A of Ex.D-8 reads as under:- “Any excess payment made to the contractor inadvertently or otherwise under this contract or any account whatever and any other sum bound to be due to Government by the contractor in respect of this contract or an other contract or work order or on any account whatever may be deducted from sum whatever payable by Government to that contract or either in respect of this contract or any work order or any other account by any other department of the Government.” Thus, as per Clause 22-A, defendants were entitled to recover RSA No.3624 of 2008(O&M) 4 any sum due towards the plaintiff. However, what has to be seen is whether the earlier contract was given to the same plaintiff or to somebody else. It has not been disputed that Ex.P-5, copy of plaint and Ex.P-6, copy of written statement pertains to the other case of the parties. A perusal of the plaint shows that the plaintiff in the said case is a proprietorship firm, whereas in the present case, the plaintiff is a private limited company. It means that both are separate entities, though the partners of the plaintiff and contractors of the plaintiff in another case are the same, however, the present plaintiff is a private limited company whereas the plaintiff in the other case is proprietorship firm which is a separate entity and, therefore, clause 22-A of the contract agreement does not apply on the present firm. Thus, the recovery by the defendants from the plaintiff regarding some other contract which was given to Goel Project proprietorship firm, is being legally effected and the plaintiff is very much entitled to recover the said amount from the defendants with interest. Thus, I find no infirmity or illegality in the findings recorded by the both the Courts below. No substantial question of law arises. Dismissed. December 1, 2008 (RAKESH KUMAR GARG) ps JUDGE