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2009 Supreme(Gau) 268
IN THE HIGH COURT OF GAUHATI
Ranjan Gogoi and Biplab Kumar Sharma, JJ.
State of Assam and Ors. - Appellants
Vs.
Marino Dredg Co. (P) Ltd. - Respondent
RFA No. 142 of 2005
Decided on : 27.04.2009
For Appellant/Petitioner/Plaintiff: S. Sarma, Adv.
For Respondents/Defendant: M.K. Choudhury, Sr. Adv. and M. Dutta, Adv.
The main legal point established in the judgment is the need for a fresh consideration of the case, taking into account the relevant Measurement Book and the documents mentioned in the plaintiff's application, as well as the original Measurement Books, the relevant APWD Code Rule 376, and the letter of the plaintiff dated 3.12.1993.
Headnote:
Money Suit - Execution of dredging work - APWD Code Rule 376 - Correction in Measurement Book - Fresh consideration ordered
Fact of the Case:
The plaintiff filed a money suit against the defendants for non-payment of the amount claimed for execution of dredging works. The defendants denied the claim, stating that the plaintiff failed to complete the work within the specified time and that the measurements of the works were not as claimed by the plaintiff. The trial court partially decreed the suit in favor of the plaintiff based on a letter issued by the Executive Engineer certifying the amount of works executed by the plaintiff.
Finding of the Court:
The trial court's decision was set aside and quashed, and a fresh consideration of the case was ordered by the court. The court found that the matter needs to be reconsidered, taking into account the relevant Measurement Book and the documents mentioned in the plaintiff's application. The court also directed the consideration of the original Measurement Books, the relevant APWD Code Rule 376, and the letter of the plaintiff dated 3.12.1993, on the basis of which the Exhibit-10 letter dated 4.12.1993 was issued.
Issues: The issues in the case included the maintainability of the suit, limitation, cause of action, completion of the dredging job, joint measurement, final bill, release of bank guarantee and earnest money, tampering of measurement book, and entitlement of the plaintiff to the claimed amount.
Ratio Decidendi: The court found that the matter needs fresh consideration, taking into account the relevant Measurement Book and the documents mentioned in the plaintiff's application. The court also directed the consideration of the original Measurement Books, the relevant APWD Code Rule 376, and the letter of the plaintiff dated 3.12.1993, on the basis of which the Exhibit-10 letter dated 4.12.1993 was issued.
Final Decision: The impugned judgment and decree were set aside and quashed, and a fresh consideration of the case was ordered by the court.
B.K. Sarma, J.
1. This appeal is directed against the judgment and decree dated 6.8.2004 passed by the learned Civil Judge (Senior Division) No. 1, Guwahati in Money Suit No. 48/98, partially decreeing the suit in favour of the plaintiff respondent declaring that the plaintiff/respondent is entitled to Rs. 12,45,816/- payable by the defendants/appellants No. 1 to 4 jointly or severally with interest at the rate of 9% per annum from 1.4.1995 till realization of the amount within 60 days.
2. The sole respondent as the plaintiff instituted money suit No. 48/98 valued at Rs. 35,13,556.64P against the present four appellants as the defendants and also against the defendant No. 5 by name who was the defendant No. 4 in his official capacity. The learned trial Court has held that the suit against the said defendant No. 5 is not maintainable in view of the fact that he was already a party defendant (defendant No. 4) in his official capacity.
3. The matter relates to execution of the particular work entrusted to the plaintiff/respondent by the defendants-appellants pursuant to floating of tender and the entitlement of the plaintiff-respondent to the amount it had claimed in the suit for execution of the works. It is an admitted position that the plaintiff could not execute the work fully. The prayers made in the suit are as follows:
The plaintiff, therefore, prays before the learned Court for-
(a) A decree for Rs. 35,13,556.64 as mentioned in paragraph 39 thereof against the defendants and each one of them.
(b) Interest on judgment and further interest till date of payment of the decretal amount by the defendants @ 18% per annum or at such other rates this learned Court may deem fit and proper.
(c) Receiver;
(d) Commission for Inspection, Inventory and or Investigation.
(e) Attachment before judgment.
(f) All costs including the amount paid by plaintiff by way of court-fees.
(g) Advocate's costs.
(h) Such other relief and/or further reliefs which this learned Court may be pleased to hold to be just and proper.
4. The case as set out in the plaint is that the plaintiff who had been carrying on, inter alia, the business of dredging of river beds by employing the self owned dredgers was awarded with contract pertaining to the job of river bed dredging vide work order dated 23.12.1992. The work order was preceded by the Letter of Intent (LOI) vide letter dated 9.10.1992, pursuant to which the plaintiff had submitted Bank Guarantee dated 13.12.1992 for Rs. 2,35,000.00 to the defendant/appellant No. 3 towards security and performance guarantee. The plaintiff respondent had also earlier submitted the Demand Draft for Rs. 20,000.00 dated 15.9.1992 towards earnest money.
5. Pursuant to the said work order, the defendant/appellant No. 3 agreed to pay a sum of Rs. 6,98,500/- only as mobilization charge of the dredgers and Rs. 86/- only as excavation charge of dredged material per cubic metre and a further sum of Rs. 2,50,000/- for demobilization of dredgers and re-transportation including handling, dismantling, loading to destination etc. as specified in the Letter of Intent.
6. The plaintiff-respondent took up the job at the specified work site. It is the claim of the plaintiff that it had completed the dredging work on 15.3.1993. The plaintiff had written letters to the defendants/appellants intimating the difficulties it had to face towards execution of the works. As per the own admission of the plaintiff, it could not complete the work within the target date i.e. 9.2.1993 allegedly for the situation beyond its control and accordingly it had prayed for extension of time to complete the work which was granted by the defendants/appellants up to 15.3.1993, vide letter dated 6.3.1993.
7. According to the plaintiff/respondent, measurements of the works were taken by the competent officers of the defendant/appellant No. 3 and defendant No. 5 on 15.3.1993 and such measurement was recorded in presence of the representative of the plaintiff at the work site in
