Coastal Project Private Limited vs Sri Gopal Chakraborty

This appeal under Section 96 of the CPC arises from the judgment dated 06.09.2011 delivered in Money Suit No.66 of 2008 by the Civil Judge, Sr. Division, Court No.2, West Tripura, Agartala.

The respondent instituted the Money Suit being No.66 of 2008 for realization of a sum of Rs.12,67,906/- with cost and interest at 12% per annum from 01.06.2008 till the date of payment. According to the respondent [hereinafter referred to as the plaintiff] he was engaged for execution of two work-orders bearing No.CPPL/IBBF/PUR/04/145 dated 13.11.2004 and No. CPPL/IBBF/PUR/05/110 dated 01.12.2005 relating to construction of Indo-Bangladesh Border Fencing. The NBCC Ltd., a Govt. of India undertaking was the nodal agency for implementing the said works, but the said nodal agency [the defendant No.3] engaged Coastal Projects Private Ltd.[ the defendant No.1] for execution of the work on turnkey basis. The plaintiff has averred further that the defendant No.1 assigned the part of the said work to him in the month of August, 2006 orally. Since the defendant No.1 did not supply the materials as per requirement and the running account [in short, RA] bills were not paid despite execution of the work, the plaintiff had to suspend the work under compelling circumstances. The said situation was brought to the notice of the defendant No.2 who was the Project Manager of the defendant No.1. As the defendant No.2 who was representing the defendant No.1 had no intention to get the works executed by the plaintiff, he submitted the bills dated 11.04.2008. The plaintiff was also asked to execute another work at Simna Sector [Daigyabari site]. In that section when the plaintiff executed about 2.364 km. out of the total work of 5 km the defendant No.2 without any rhyme or reason engaged another agency to execute the balance quantity of work and thus, the plaintiff was compelled to withdraw from the said work. As a result, the plaintiff suffered a huge financial loss. On 11.04.2008, the plaintiff had submitted separate bills to the defendant No.2 for the works done by him on the basis of those work orders and the oral work-orders, but the defendant No.2 did not respond positively. On 23.06.2008, the defendant no.2 rejected the claim of the plaintiff. The defendant No.2 even did not mention that the fencing work was executed by the plaintiff at Daigyabari site on the basis of oral contract. The plaintiff has stated that the evidence are galore that the plaintiff executed the works on having the materials from the defendants No. 1 and 2. The plaintiff had indicated in the plaint that the defendants be directed to produce such records. On 23.06.2008, it became clear to the plaintiff that the defendants No. 1 and 2 had no intention to allow him complete the work and as consequence thereof, the plaintiff submitted the bills, asking the payment and on 01.07.2008 the plaintiff reiterated his claim to persuade the payment but no payment was made. On 04.10.2008, the plaintiff served a notice of demand on the defendants No. 1 and 2 with copies to the defendants No. 3 and 4. In the demand notice, the plaintiff had clearly stated that if the payment is not made within a period of one month from the date of receipt, the plaintiff would charge interest on the amount at the rate of 12% per annum w.e.f. 01.06.2008 till the date of payment but it did not bring any positive yield, meaning the claim of Rs.12,67,906/- with interest at the rate of 12% per annum from 01.06.2008 was not honoured in terms of the letter dated 11.04.2008, within the time as stipulated in the notice of demand or thereafter. As no payment has been made, the plaintiff has instituted the suit for realization of the said amount.

The defendants No. 1 and 2 by filing a written statement have categorically stated that by the agreements dated 13.11.2004 and 01.12.2004 those defendants assigned the said work to the plaintiff for physical execution, but whether plaintiff had employed unemployed youth was not known to the defendants. The principal defendants have categorically denied that they had engaged the plaintiff for any other sector including the Simna sector at Daigyabari. However, it has been asserted by those defendants that from the contract of the plaintiff it would be seen he was not willing to perform the work assigned to him and he did not receive the materials in proper time. Moreover, as per the agreement the plaintiff did not submit proper records as per Para ''J'' of the agreement dated 13.11.2004 wherein it has been clearly stated that if the plaintiff did not give the reconciliation statement of materials and the master-print of the wage statement the work, the payment shall be stopped by the defendants. From the record, it is seen that the excess materials were issued to the plaintiff but he did not give the proper statement of the said materials. Moreover, as per agreement, he should have raised the R/A bills by every 28th day of the month but he failed to comply with the terms and conditions of the agreement which he executed with the principal defendants. On contemplation that the plaintiff would not complete the work as per the said agreement as he stopped receiving the materials, even though, those defendants were ready to execute the work by the plaintiff but due to non-cooperation by the plaintiff, the defendants No. 1 and 2 were compelled to stop the supply of materials to the plaintiff and took necessary steps in time with the terms and conditions of the agreement. The defendants No. 1 and 2 had no intention to stop the execution of the work but for sheer negligence and improper management as unleashed by the plaintiff, such harsh decision had to be taken for completing the work within the time stipulated in the basic agreement. But they have categorically denied that they have asked the plaintiff to work for the Simna sector to execute any construction work. The plaintiff had also not given, according to the defendants No. 1 and 2, the account of the advance made to them. For unleashing some mismanagement, the defendants No. 1 and 2 were persuaded by the circumstances to take the decision that they would discontinue the execution of the work by the plaintiff as the plaintiff even after serious insistence did not stick to the schedule for completion of the work. Even, the plaintiff is not entitled to get any amount for the bill which was submitted by him in connection with the Simna sector for obvious reason that his service was not taken in that sector.

On the face of such rival pleadings, as it appears from the record, the trial court framed the following issues for adjudication of the suit:

I. Is the suit maintainable in its present form and nature?

II. Whether the plaintiff entered into an agreement with the defendants No. 1 & 2 for construction of Indo-Bangla Border Fencing in some parts of Tripura for and on behalf of the defendants No. 1 & 2 who were earlier engaged by the defendants No. 3 & 4 for execution of such construction work?

III. Was the plaintiff failed to complete the stipulated construction work of Indo-Bangla Border Fencing due to non cooperation of the defendants No. 1 & 2?

IV. Whether the plaintiff is entitled to get a money decree for an amount of Rs.12,67,906/- against the defendants No. 1 & 2?

V. To what other relief/reliefs the parties of this suit are entitled to get?

As gathered from the records, the plaintiff examined himself as P.W.1 and he proved some documents viz. the Work-orders dated 13.11.2004 and 01.12.2005, the letter of the plaintiff dated 11.04.2008 as referred, the letter of the defendant No.2 dated 23.06.2006 rejecting the claim and the demand notice of the plaintiff dated 04.10.2008 [Exbt.M.O.1 series].

From the defendants one Sudip Basu [D.W.1] was examined to prove their case. On purported appreciation of the evidence both the issues No. I & II were decided in the affirmative and in favour of the plaintiff. While deciding the issue No.III, the trial Court returned the finding which reads inter alia as under: "....but the plaintiff got no positive response from the side of the defendant No.2. But in his cross-examination the plaintiff admitted that as per agreement deals were to be presented and submitted to the defendants No. 1 & 2 by the plaintiff within 28th day of every English calendar month but the plaintiff could not submit the bill as per terms and condition of the agreement. The plaintiff also admitted in his cross examination that he did not make any attempt to submit the labour statement to the higher authority of the defendants by post or otherwise and the plaintiff also did not furnish any information in writing regarding his inability to submit the bills by 29th day of every English calendar month...."

It was further observed that the defendants No. 1 & 2 did not entrust the plaintiff any other work in writing or verbally except the construction work mentioned in the aforesaid two work orders dated 13.11.2004 and 01.12.2005 issued by the defendant No.2, but at the same time from the written statement and the oral evidence of D.W.1 it is found that except those work orders the defendants No. 1 and 2 also verbally asked the plaintiff to supply manpower in connection with a work at Simna sector, Daigyabari site. Section 53 of Indian Contract Act,1872 have been referred to demonstrate that the plaintiff was prevented from performing the work assigned to him. In the plaint, the plaintiff stated that due to non-receipt of materials as per requirement from the defendant No.1, the plaintiff could not complete the stipulated work and he was compelled to keep the work suspended getting no response from the respondent No.2 in respect of supply of materials and for nonpayment of R/A bills. So in absence of any documentary evidence in respect of the performance etc. it was an uphill task to determine the actual loss that has been suffered by the plaintiff. However, even after observing as above, the trial court has observed that the plaintiff is entitled to get a money decree for an amount of Rs.12,67,906/-. According to the trial court, the plaintiff is entitled to get the said sum of Rs.12,67,906/-. The trial court has observed succinctly as under: "....But surprisingly the defendants No. 1 & 2 nowhere of their written statement and oral evidence mentioned the exact amount of money which the plaintiff is entitled to get from the defendants No. 1 & 2 for completion of some works under agreement for which this court has no other alternative but to act upon the evidence adduced by the plaintiff in his suit...."

On such premises, the trial court passed the decree of Rs.12,67,906/- with interest @ 8% per annum from the date of institution of the suit i.e. 23.12.2008 till the payment is made by the defendants No. 1 & 2.

Mr. K.N.Bhattacharjee, learned Senior counsel assisted by Mr. Kohinoor N. Bhattacharjee has submitted that the plaintiff has miserably failed to prove that he is entitled to a judgment for realization of the money as demanded by him. Mr. Bhattacharjee, learned Sr. counsel has further stated that even though the defendants No. 1 & 2, the appellants herein, admitted that the work orders dated 13.11.2004 and 02.11.2005 were issued by them but the plaintiff has miserably failed to provide the amount of work he had completed and the amount of work for which he raised the bill either by way of averment in the plaint or by evidence or by any other means, such as the records of transaction.

From the other side, Mr. A.K.Deb, learned counsel has appeared for the plaintiff-respondent whereas Mr. J. Majumder and Mr. P.K.Ghosh, learned counsel appeared for the respondents No. 2 & 3 respectively. Mr. Deb, learned counsel has submitted that there is no infirmity in the finding and decision returned by the trial court. The judgment is well reasoned and it does not warrant any interference from this court.

The pertinent question which emerges in this appeal is that whether the plaintiff [the respondent No.1] has discharged the burden of proving his case.

It is apparent from the plaint that there is no description of the work executed by the plaintiff save a reference to the agreements dated 13.11.2008 and 01.12.2005. There is no other document except the letter dated 11.04.2008, the reply dated 23.06.2006 and the demand notice dated 04.10.2008. As there was no dispute regarding the issuance of work order it was not denied by the principal defendants. The plaintiff-respondent was awarded two works to be executed. From the letter dated 23.06.2006 issued by the defendant No.1, it appears that the defendant No.1 had clearly observed as under:

"We are in receipt of your letter mentioned above claiming finalization of bills and damages for breach of contracts awarded to you by us.

At the outset, we would like to advise you to go through the detailed terms and conditions of the contract works allotted to you before writing such letters to us claiming finalization and damages of your bills.

Please note that we totally reject your claim for finalization of bills stated to have been submitted by you and damages for breach of contracts awarded to you by us. As a matter of fact, we are in the process of filing a claim against you for non-completion of the works awarded to you as well as poor quality to the extent of work you have done as per detailed technical specifications given to you. We give below the details of the work done by you.

Cement Concrete Works:- As per instruction given to you by our site-incharge, you were to carry out cement concrete work of 1:5:10 and 1:3:6 upto 0.746 km, whereas you have done only 1:5:10 and left the balance work of 1:3:6 in spite of our repeated requests by our Site-In- Charge you did not undertake the work.

Angle Fixing:- Out of the total 7 Km. Stretch angle fixing (both side 90X90X6mm, middle row angle 65X65X6mm and strut post for both side 90X90X6mm), you have done only 4.5kms., middle row with 65X65X6mm angle, strut post for both side with 90X90X6mm 4 Kms and strut post of 65X65X6mm upto 4 Kms. From the above mentioned work done by you, it is evident that you have not completed the work in all respect as per the technical specification given to you. Though, we have given several opportunities for completing the work you did not do anything breaching the contractual obligations.

Store Materials:- You have been issued total quantities of materials required for completion of 9,500 kms. stretch, which were duly received by you/your representatives. But it is highly disappointing to note that even after leaving work half-done; you did not care to return back the balance materials available with you. As per clause (e) of the terms and conditions of the contract, you have been clearly informed that the "Construction materials should be used theoretically and you have to submit the reconciliation statement of materials every month and any physical variations of excess consumption of materials if any, found the same shall be deducted from your RA Bills.

You have been clearly informed vide clause (j) of the terms and conditions that the RA Bills should be submitted on every 28th day of the month with all supporting documents, i.e. joint measurement records, details of consumption of materials, reconciliation statement, master print of the wages statement etc, but you have never produced that about documents.

As per clause (f) of the terms and conditions, you have been instructed to meet all the quality standards of the project given to you from time to time by the Site-in-charge, but the quality of work done by you was very worst which has resulted damages to our reputation and we had to redo the work once again to the satisfaction of our client. You may kindly note that you have failed in all respects to execute the works awarded to you in total and thus breached the contractual obligations, resulting damages to our image and reputation, financial loss, claim from our client for delay in completion of the work. Under the circumstances, we have no other alternative but file our claim from you."

Thereafter, the plaintiff immediately issued the demand notice claiming the said amount. But the defendants No. 1 & 2 did not raise any counter-claim against the plaintiff. It is well settled that the mere assertion will not entitle someone to get the benefit. Surprisingly, what we find that some details are provided in respect of the quantity of work as has been carried out by the plaintiff in the Indo-Bangla Border Fencing work at Simna sector, Daigyabari site, but the defendants No. 1 & 2 have categorically denied to have entered into any agreement with the plaintiff. Even the plaintiff did not call for the records from the custody of the defendants No. 1 & 2 for proving the opposite. Now, it appears to this court that the demand notice is the solitary basis for claiming the sum of Rs.12,67,906/- with interest at the rate as stated above. Even the bills were not introduced in the evidence. This court does not find any materials on the basis of what it can be inferred that the plaintiff has discharged the burden of proof as provided under Section 101 of the Evidence Act when there is no admission by the defendants.

Section 101 of the Evidence Act provides clearly that the burden of proof lies on the person who sets up claims as to any legal right or liability depended on the existence of facts which he asserts must prove that those facts exist. Whoever desires any court to give the judgment as to such legal right or liability he is obligated to prove the existence of the relevant fact. There exists distinction between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. Onus of proof is related to the question which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others [ Anil Rishi v Gurbaksh Singh, (2005) 5 SCC 558].

Even though there is evidence that the defendants No. 1 & 2 awarded two works in favour of the plaintiff as stated but the plaintiff did not prove the amount of the works he had executed and what are the components for which he is entitled to the said sum. If that burden is not discharged by the plaintiff, the onus of proof cannot be shifted to the defendants No. 1 & 2. Even though the defendants No. 1 & 2 have denied and raised the counter claim, but in that premises also it cannot be said that the onus to prove that they are not liable to make payment of the bills has shifted to them.

Mere assertion is not sufficient. The relevant fact has to be proved by the plaintiff as the plaintiff wished the court to believe in existence of such fact. Unless such proof is laid, the court will not imagine in any evidence. Thus, this court is constrained to observe that the plaintiff having failed to discharge the burden of proof in respect of his claim, the suit is bound to fail.

Having observed thus, the impugned judgment and decree dated 06.09.2011, delivered in Money Suit No.66 of 2008 is liable to be interfered with and accordingly it is ordered. The impugned judgment and decree is set aside as consequence of the observation made above. Consequently the suit is dismissed. In the result, the appeal stands allowed.

Draw the decree accordingly. Transmit the L.C.Rs thereafter.