IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1039 of 2008 Date of Decision: 30.1.2009 M/S Ram Krishan Yudhister Parkash, Ferozepur Cantt. ....... Appellant through Shri Rajesh Garg, Advocate. Versus Cantonment Board, Ferozepur. ....... Respondent through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. Feeling aggrieved by the judgments and decrees dated 16.9.1997 and 15.5.2007 passed respectively by the Civil Judge (Senior Division), Ferozepur (hereinafter described as, `the trial Court') and the District Judge, Ferozepur (referred to hereinafter as `the First Appellate Court') vide which its suit was partly decreed and the appeal was dismissed, the plaintiff-appellant has filed the present Regular Second Appeal. The appellant had filed a suit for recovery of Rs.13,96,332.19 on the plea that it had carried out the work of Brick Linking of Sukhbar Nullah from G.T.Road to Cantonment boundary Pillar No.44 (near Fattuwala village) during the period from December,1986 to February,1987. R.S.A.No.1039 of 2008 -2- .... Various claims were made by the appellant, which are as follows:- (i)A sum of Rs.1,99,214.26 was paid less than the due during the year 1986-87 for the work done,i.e., excavation of the foul sullage muddy earth/ silt from the nullah to its entire length (the break-up of the work the and amounts have been detailed in the plaint). (ii) A sum of Rs.1510.53 was claimed in respect of the work of placing cement concrete in the foundation as also the mess concrete in the nullah in the foul position. (iii) A sum of Rs.61680.62 was paid less in respect of the brick work done in the foul position. (iv) A sum of Rs.1,86,911.77 was paid against the due amount of Rs.2,48,592.39. (v) A sum of Rs.17431.57 was paid less in respect of cement plaster done in the foul position of the Sukhbar Nullah. (vi) A sum of Rs.3765.91 was claimed as difference in the rate for the work of edge shuttering in the roof slabs one in the foul position. (vii) Another sum of Rs.25991.80 was claimed as difference in the rate in respect of the work of RCC roof slabs done in the foul position to the entire portion of the Sukhbar nullah. (viii) A sum of Rs.71717.14 was claimed by way of interest at the rate of 12% per annum on the amount due from 1.3.1987 to 28.2.1990. R.S.A.No.1039 of 2008 -3- .... (ix) A sum of Rs.12,17,704.54 was claimed in respect of the work done during the year 1987-88 along with interest amounting to Rs.1,17,817.56 which was calculated at the rate of 12% per annum. The appellant served a notice upon the respondent under Section 273 of the Cantonment Act,1924 for payment Rs.14,23,339.76, besides the interest,but to no effect and hence, he filed the suit. The respondent, who contested the suit, admitted that the appellant is a partnership firm,but denied that it is a registered partnership. It also admitted the factum of the appellant having carried brick lining of the Sukhbar nullah, but disputed the claim set up by him and stated that the entire payment regarding the works had been made to him. It was pleaded that final bill dated 28.2.1988 for Rs.19,46,129.89 for the extended work was signed by the appellant and the same was paid in six instalments and Rs.3,30,164.89 were paid to him on 9.2.1988 in full and final satisfaction of that bill. It was further pleaded that in the notice dated 1.10.1986 inviting tenders for the work, it was expressly stated that no extra payment will be made for pumping out water and desilting the nullah and, therefore, there was question of paying anything to the appellant on this score. The parties, thereafter, went to trial on the following issues:- 1. Whether the plaintiff is registered firm and the suit has been filed through a registered partner?OPP 2. Whether the plaintiff is entitled to recover a sum of Rs.13,96,322.19?OPP R.S.A.No.1039 of 2008 -4- .... 3. If issue no.2 is proved, whether the plaintiff is entitled to interest on this amount? If so, at what rate?OPP 3A. Whether the drain in question was not desilted by the plaintiff during the year 1986-87 and 1987-88 and the work was done in foul condition?OPD 3B. Whether the payment of Rs.4,81,207.78 paise was made by the defendant to the plaintiff against the work order No.64 dated 18.9.85 and has no concern with the present contract?OPD 4. Relief. The trial Court, after appraisal of the entire evidence brought before it, partly decreed the suit for recovery of Rs.76802.92 with proportionate costs and interest at the rate of 12% per annum thereon to be calculated for the period 25.12.1989 till the date of its filing and also at the said rate during the pendency thereof and with further interest at the rate of 6% per annum till final realization. In appeal, the First Appellate Court affirmed the findings of the trial Court. Hence, this appeal. Learned counsel for the appellant contended that the claim of the appellant has wrongly been disallowed by the Courts below. He has referred to the reasoning contained in paragraphs 12 of the judgments of the trial Court and the First Appellate Court to say that the amount has been wrongly calculated and the claim as set up by the appellant has been R.S.A.No.1039 of 2008 -5- .... disallowed on perverse reasoning. I have considered the contention of the learned counsel for the appellant and have perused the record. It is the case of the respondent that entire amount due to the appellant had already been paid. The appellant tried to make out a case that the works which he had undertaken have not been compensated in terms of the clause of the agreement. The Courts below have noticed that in the tender notice dated 1.10.1986 (Exhibit DW5/D), it was stipulated that no extra amount shall be paid for pumping out water and desilting the nullah. A perusal of the paragraphs of the impugned judgments as referred by the learned counsel for the appellant reveals that the appellant had tried to segregate the works regarding desilting of the nullah, but it was clearly specified in the tender notice that no extra payment shall be made for the purpose. If in the process, some steps had been taken by the appellant as a measure of desilting, then it cannot be said that he would be entitled to some more amount on this score. In any eventuality, these are the questions of facts which have been determined by the Courts below and no question of law, much less a substantial question of law, is shown to have arisen for consideration in the Regular Second Appeal. Consequently, this appeal is totally devoid of any merit and is dismissed. January 30,2009 ( Mahesh Grover ) “SCM” Judge