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2017 Supreme(Online)(Gau) 145

IN THE GAUHATI HIGH COURT
K. Nobin Singh, J
General Manager North East Frontier Railway and Others v. J. A. Brothers Nagaland
Civil Appeal | F.A No. 1(K) of 2011

Advocates:
For the Appellants/Petitioners: Ms. Nuksungtila, Mr. C. T. Jamir
For the Respondents: None

Contractors must adhere to measurement protocols outlined in contract agreements; failure by the other party to fulfill their obligations does not negate a claimant's right to recover amounts due.

Headnote:(A) Code of Civil Procedure, 1908 - Section 96 - Arbitration and Conciliation Act, 1996 - Section 8 - Contract agreement - Appellants/defendants' appeal against the judgment directing payment of a balance bill of Rs. 19,52,012/- for contractual work, including interest - Failure of defendants to conduct joint measurements as stipulated and wrongful denial of plaintiff's claims were established. (Paras 2, 3, 4, 10, 11, 19)

(B) Law of Contracts - Construction of agreements - Measurement of completed work by contractor accepted in absence of timely objections from defendants - Burden on defendants to prove completion issues not met, thereby entitling plaintiff to recover amounts due. (Paras 6, 7, 8, 10)

Facts of the case:
The appellants floated a tender for road repairs, and the respondent's submission led to a contract agreement, which was completed, but subsequent payment disputes ensued involving allegations of misconduct by defendants and non-payment.

Findings of Court:
The Court found that the plaintiff completed the work satisfactorily, and defendants failed to perform their obligations regarding joint measurement, leading to the decree favoring the plaintiff.

Issues: Main issues included the completion of work under contract, validity of measurements taken, the locus standi of the attorney holder, and interest on the amount claimed.

Ratio Decidendi: The court ruled that in the absence of defendants' timely measurements or responsive actions, the contractor's assessments stand valid by mutual agreement and documents signed by both parties, highlighting that the defendants' evasion cannot adversely affect the plaintiff's claims.

Result: Appeal dismissed.

Table of Content
1. outline of the factual background of the case. (Para 1 , 2 , 3)
2. court's findings on issues and evidence presented. (Para 4 , 6)
3. arguments and defenses raised by the appellants. (Para 5 , 8)
4. essential legal principles established by the court. (Para 7)
5. final decisions and conclusions drawn by the court. (Para 9 , 10)

1. Heard Ms. Nuksungtila, learned counsel who appeared on behalf of the appellants and also heard Mr. C. T. Jamir, learned Sr. Advocate who appeared on behalf of the respondent.

2. This is an appeal under S.96 of the Code of Civil Procedure, 1908 r/w R.29 of the Rules for the Administration of Justice and Police in Nagaland, 1937 directed against the judgment and order dated 30.05.2014, passed by the learned District & Sessions Judge, Dimapur in Civil Suit No. 15/2007.

3. The brief facts of the case leading to this appeal are as follows; The appellants / defendants floated a Tender Notice No. 105/2003 (IT - 3) on 2003, for Execution of the work, ' At LMG - Repairs to main road from 1st BN RPSF / LMG Complex to Recreation Club with Colony road at Loco Colony; BF Colony; S.H Colony et. Under SSE(W) / S / LMG' for an amount of Rs. 38,18,035/-. In response, the respondent / plaintiff submitted his tender vide his letter dated 17.02.2005 and he was selected for the work. Accordingly, on 24.02.2005, an agreement was signed and according to the same the petitioner was to finish the work on or before 16.08.2005. Thereafter, a subsidiary contract agreement was signed by the parties on 12.06.2006, by which the respondent / plaintiff was given additional work and the value of the contract was enhanced to Rs. 44,45,096/- and time limit for completion of the work was also extended till 30.05.2006. The contract agreement was signed by Sri. James Akham on behalf of the respondent firm M/s J.A Brothers and on behalf of the President of India by Divisional Engineer, N.E.F. Railway, Lumding. The respondent / plaintiff claimed that as per the contract agreement he had completed execution of the work on 21.07.2006. So, he informed the appellants / defendants and requested for final measurement and payment of the bill through a letter dated 22.07.2006, but due to non - payment of illegal gratification demanded by the appellants / defendants No.5, final measurement could not take place even after 2(two) months from the date of his report. Having no choice the plaintiff with his authorised Engineer and staffs took final measurement of the work done and the result of the same tallied with the records of the quantities of the materials used and volume of the work done and signed by both the parties in the register maintained by defendant No.5. Thereafter, he submitted the same to the Divisional Railway Manager, N.F. Railway at Lumding vide his letter No. Final Bill / NFR / LMG / 06-07 dated 04.10.2006 for payment of the outstanding bill amounting to Rs. 19,52,012/-. However, he did not get any response for payment of the bill. Therefore, he was compelled to issue a legal notice through his Advocate to the General Manager, N.F. Railway, Lumding. Only thereafter, the appellants / defendants responded and fixed 23.12.2006 for doing the same but no one from the appellants / defendants side came forward for measurement of the work done. As such, he wrote a letter on the same day to the appellants / defendants requesting for the same. Thereafter, another date i.e. 12.02.2007 was again fixed for the joint measurement but on that day also the same could not be carried out as the appellant / defendant No.5, assaulted and criminally intimidated the people who were at work site on behalf of the respondent for the purpose. A complaint regarding the incident was submitted to the Railway authorities but no action was taken. Since the petitioner did not get positive response from the appellants, he filed a suit before the Addl. District Judge, Dimapur praying for a decree for the sum of Rs. 19,52,012/- and for a decree of Rs. 20

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2017 Supreme(Online)(Gau) 145

IN THE GAUHATI HIGH COURTK. Nobin Singh, JGeneral Manager North East Frontier Railway and Others v. J. A. Brothers NagalandCivil Appeal | F.A No. 1(K) of 2011

Contractors must adhere to measurement protocols outlined in contract agreements; failure by the other party to fulfill their obligations does not negate a claimant's right to recover amounts due.

IN THE GAUHATI HIGH COURT
K. Nobin Singh, J
General Manager North East Frontier Railway and Others v. J. A. Brothers Nagaland
Civil Appeal | F.A No. 1(K) of 2011