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2011 Supreme(Mad) 2800
High Court of Judicature at Madras
M. VENUGOPAL
The Superintending Engineer, Vellore District & Others
Versus
J. Varadhan
A.S.No.1070 of 2003 & C.M.P.No.19370 of 2003
Decided on : 17-06-2011
For the Appellants:Mrs. Sudharshana Sunder, Advocate
For the Respondent: -------.
A contractor is entitled to recover the balance amount due to him from the Board for the contract works executed by him, along with interest.
Headnote:
CONTRACT - SUIT FOR RECOVERY OF MONEY - CONTRACTOR CLAIMING BALANCE AMOUNT FROM BOARD - BOARD CLAIMING COMPENSATORY COST FROM CONTRACTOR - COURT HELD THAT CONTRACTOR IS ENTITLED TO RECOVER BALANCE AMOUNT FROM BOARD - BOARD IS NOT ENTITLED TO COMPENSATORY COST FROM CONTRACTOR.
Fact of the Case:
The Respondent/Plaintiff, a contractor, filed a suit against the Appellants/Defendants, a Board, for recovery of a sum of Rs.8,34,900/- as balance amount for 13 contract works executed by him. The Board, in its written statement, denied the claim of the Respondent/Plaintiff and claimed a sum of Rs.1,07,375/- as compensatory cost from the Respondent/Plaintiff.
Finding of the Court:
The Court held that the Respondent/Plaintiff was entitled to recover a sum of Rs.88,159/- from the Board, together with interest at 6% per annum from the date of filing of the suit till date of realization. The Court further held that the Board was not entitled to claim compensatory cost from the Respondent/Plaintiff.
Issues: 1. Whether the Respondent/Plaintiff has completed the 13 project works? 2. Whether the Respondent/Plaintiff is entitled to receive a sum of Rs.8,34,900/- as balance amount from the Appellants/Defendants with interest? 3. Whether the suit suffers on account of non-issuance of notice as per Section 80 of Civil Procedure Code? 4. Whether the suit is barred by limitation? 5. Whether the trial Court has jurisdiction to entertain the suit? 6. Whether the Appellants/Defendants are entitled to claim the compensatory cost from the Respondent/Plaintiff?
Ratio Decidendi: 1. The Court held that the Respondent/Plaintiff had completed the 13 contract works as agreed, but the Board had failed to pay the full amount due to him. 2. The Court held that the Respondent/Plaintiff was entitled to recover a sum of Rs.88,159/- from the Board, together with interest at 6% per annum from the date of filing of the suit till date of realization. The Court found that the Respondent/Plaintiff had claimed a sum of Rs.8,34,900/- as balance amount, but the Board had admitted that it owed the Respondent/Plaintiff a sum of Rs.88,159/-. 3. The Court held that the suit did not suffer on account of non-issuance of notice as per Section 80 of Civil Procedure Code, as the Board was not a 'Government' and the Appellants Engineers' were not 'Public Officers'. 4. The Court held that the suit was not barred by limitation, as the Respondent/Plaintiff had filed the suit within the limitation period. 5. The Court held that the trial Court had jurisdiction to entertain the suit, as the contracts had been entered into within the jurisdiction of the trial Court. 6. The Court held that the Board was not entitled to claim compensatory cost from the Respondent/Plaintiff, as the Respondent/Plaintiff had not filed a frivolous or vexatious suit.
Final Decision: The Court allowed the appeal in part and modified the judgment and decree of the trial court. The Court directed the Board to pay a sum of Rs.88,159/- together with interest at 6% per annum from the date of filing of the suit till date of realization to the Respondent/Plaintiff within a period of two months from the date of receipt of copy of the judgment.
1. The Appellants/Defendants have projected this present Appeal against the Judgment and Decree dated 27.06.2003 in O.S.No.1 of 2002 (on the file of Sub Court, Vellore O.S.No.305/96) on the file of the Additional District and Sessions Judge, (Fast Track Court), Vellore.
2. The trial Court, in its Judgment, on an appreciation of oral and other documentary evidence available on record, has, inter alia, observed that 'the Respondent/Plaintiff is not entitled to a sum of Rs.8,34,900/- (Rupees Eight Lakhs Thirty Four Thousand and Nine Hundred only) as claimed in the Pliant and it has not accepted the claim of Rs.1,07,375/- made by the Appellants/Defendants as if a counter claim and held that the Appellants/Defendants are still to pay a sum of Rs.88,159/- to the Respondent/Plaintiff. Accordingly, it partly decreed the suit for a sum of Rs.88,159/- in favour of the Respondent/Plaintiff directing the Respondent/Plaintiff to receive interest for the aforesaid sum at 9% per annum from the date of filing of the suit till the date of passing of the decree and thereafter, at 6% per annum till the date of realisation. Moreover, the Respondent/ Plaintiff has been directed to pay the required Court Fee.'
3. Before the trial Court, 1 to 7 issues have been framed for adjudication in the main Suit. On the side of the Respondent/Plaintiff, witness P.W.1 (Respondent/Plaintiff) has been examined and Exs.A.1 to A.29 have been marked. On the side of the Appellants/Defendants, witness D.W.1 has been examined. Exs.B.1 to B.50 have been marked.
4. Being aggrieved against the Judgment and Decree passed by the trial Court in the main suit, the Appellants/Defendants have filed the present Appeal before this Court.
5. The Points that arise for rumination in this Appeal are:
(1) Whether the Respondent/Plaintiff has completed the 13 project works?
(2) Whether the Respondent/Plaintiff is entitled to receive a sum of Rs.8,34,900/- as balance amount from the Appellants/ Defendants with interest?
(3) Whether the suit suffers on account of non-issuance of notice as per Section 80 of Civil Procedure Code?
(4) Whether the suit is barred by limitation?
(5) Whether the trial Court has jurisdiction to entertain the suit?
(6) Whether the Appellants/Defendants are entitled to claim the compensatory cost from the Respondent/Plaintiff?
The Contentions,Discussions and Findings on Point Nos.1 and 2:
6. The Learned Counsel for the Appellants/Defendants that the trial Court has failed to note that inasmuch as the Respondent/Plaintiff has not completed the 13 project works as agreed, he is not entitled to claim a sum of Rs.8,34,900/- with future interest and costs.
7. According to the Learned Counsel for the Appellants/ Defendants, the trial Court has not taken note of the fact that due to non commencement of Kilarasambattu Water Supply Scheme, the Board has suffered a loss of Rs.1,07,375/- by granting the same to another contractor. Moreover, the Appellants are entitled to recover a sum of Rs.1,07,375/- as per Agreement and Departmental Rules.
8. It is the contention of the Learned Counsel for the Appellants that the trial Court failed to take into account that from the inception of agreement, the Respondent/Plaintiff has not co-operated and further has not completed any of the works entrusted to him. Further, he has not returned the unused materials supplied by the Department when the work has been in progress.
9. The Respondent/Plaintiff, in the Plaint, has averred that he was one of the Approved Contractors of Tamil Nadu Water Supply and Drainage Board for North Arcot Ambadkar District & Dharmapuri Circle, for over 15 years. His tender for 13 works for Puttutaku Arapakkam, Kanikapuram and Naryanapuram pipe lines, Kilaiyanur (Chengam Union) Open well construction, Sekkadu Anaicut Union Open well construction, Muthurasikuppam (Sholinghur Union) Overhead tank, Paledaiyampatti (Kanniyambedi Union) Overhead tank and pipeline, Kangeyanellur (Katpadi Union) Sinking Well,
