THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1926 of 1992 DATE: 04-08-2011 Between: The Andhra Pradesh State Construction Corporation Ltd., Hyderabad and others. .. Appellants And P.Dharma Rao .. Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1926 of 1992 JUDGMENT: The defendants in O.S.No.89 of 1982 on the file of the Subordinate Judge at Khammam are the appellants herein. The suit was filed for recovery of sum of Rs.1,00,000/- with interest at 12% per annum. The contention of the plaintiff is that he was given a nomination work for construction of a cross regulator at Kilometer No.14.015 and he completed the work and the final bill was prepared on 20th August, 1981. After completion of the work, the site was handed over on 01.08.1979 and the cross regulator was opened by the Chief Minister. The APSCCL i.e. the 1st defendant has drawn the departmental final bill on 05.05.1981 but the amount was not paid. The construction was made under the supervision of the officers of the defendants but subsequently there was said to be collapse of the wall of the cross regulator and the amount was not paid. Therefore, the suit was filed for recovery of the non-payment of the final bill amount and also for the failure to refund the earnest money and security deposit with interest at 12% per annum from 01.08.1979 to 01.08.1982. The 3rd defendant has filed a written statement admitting the entrustment of work on nomination basis and further pleaded that the construction life is normally 40 years and because of lack of cement and concrete and failure to keep up the specifications, wall has collapsed and the plaintiff has not re-constructed the same and the plaintiff is, therefore, not entitled to claim the amount. The suit amount is not correct. Therefore, the suit is liable to be dismissed. On the basis of the above pleadings, the following issues were framed for trial: 1. Collapsing of the wall or cross regulator how far the responsibility gets fixed on the plaintiff? 2. Is it open for the Department to withhold the payment of the amounts pleaded in the plaint? 3. Is there breach of contract and who committed breach? 4. Is the suit claim correct? 5. To what relief? On behalf of the plaintiff, P.W.1 was examined and marked Exs.A-1 to A-7 and on behalf of the defendants, D.W.1 was examined and no documents are marked. After considering the evidence on record, the learned Subordinate Judge, Khammam decreed the suit of the plaintiff as prayed for with future interest at 12% per annum. Aggrieved by the said judgment and decree, the present appeal is filed. The points that arise for consideration are: 1) Whether the plaintiff is entitled for the suit amount? 2) Whether the plaintiff is entitled for the interest claim? 3) Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? POINT NOS.1 to 3: There is no dispute about the fact that the plaintiff was entrusted with the construction of the cross regulator and he has completed the construction and handed over the site on 01.08.1979 and a final bill was prepared and was presented and was said to have been drawn by the defendants on 05.05.1981, which was not paid to the plaintiff. The only defence of the defendant is that the wall of the regulator has collapsed and, therefore, there is no proper construction and consequently the plaintiff is liable to make good the loss that was suffered by the collapse of the wall. In order to show that the wall was not properly constructed and that there were any latches on the part of the plaintiff, the burden is, evidently, on the defendants to prove the same. According to the evidence of D.W.1 some expert reports were said to have been received but they were not filed before the Court except the oral testimony of D.W.1. There is no evidence before the Court as to the cause for the collapse of the wall. In the absence of any such evidence, the contention of the defendant, that the wall has collapsed due to poor construction undertaken by the plaintiff, cannot be accepted. It is also to be noted that whenever the final bill is prepared, there will be a certification of the quality and also the quantity of the performance of the contractor by the departmental authorities and evidently, in this case, only after such certification the final bill was prepared. Furthermore, the construction was under the supervision of the engineers, who are qualified and at no point of time the objection was raised about the poor quality of the construction. Therefore, in view of the above circumstances, the payment cannot be denied to the plaintiff for the work already has completed and having obtained possession of the regulator and having got it opened by the Chief Minister, immediately after it was handed over. Therefore, the defendant cannot deny the liability for payment of the amount due under the final bill. In this case, the composition of the claim of the plaintiff is a sum of Rs.31,344/- towards F.S.D. and a sum of Rs.13,986.01 ps. towards escalation charges and thereafter interest on the two amounts. Evidently, as can be seen from the evidence on record, D.W.1 has admitted the total final bill amount payable is Rs.65,005/-, having taken into consideration the F.S.D. amount as Rs.13,455/- as against the claim of the plaintiff as Rs.14,723/-. Therefore, excluding the escalation charges, a sum of Rs.65,005/- is payable to the plaintiff. But, however, in the written statement there is no serious dispute about the amount of Rs.14,723/-. Therefore, the difference amount comes to Rs.1,268/-, which can be added. Therefore, the total amount to which the plaintiff will be entitled is Rs.66,273/- (Rupees sixty six thousand two hundred and seventy three only). But, however, the plaintiff has claimed the interest at 12% per annum from the date of handing over the possession i.e. 01.08.1979. Evidently, there is no stipulation to pay interest in the contract and, therefore, from 01.08.1979 the plaintiff is not entitled for interest. But, however, the allegations in the plaint, which were not disputed, go to show that the amount was drawn by the department on 05.05.1981 and thereafter the department could not retain the same and the defendant is, therefore, liable to pay the interest on such amount, having withheld the same. Therefore, the decree of the lower Court is modified and the suit of the plaintiff is decreed for the sum of Rs.66,273/- (Rupees sixty six thousand two hundred and seventy three only) with interest at 12% per annum from 05.05.1981 till the date of decree and with subsequent interest at 6% per annum till the date of realization. Accordingly, the Appeal Suit is partly allowed. Each party to bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J DATE: 04-08-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1926 of 1992 DATE: 04-08-2011 MR