State of Rajasthan & Ors vs M/S Parnami Construction Co

These Civil First Appeals under sec.96 CPC have been filed against judgments & decrees dated 06.11.1989 passed by Additional District Judge, Bikaner in Civil Original Suits No.07/1985 and 08/1985 respectively.

Suit No.07/1985 pertains to recovery of Rs.22717/- in respect of lining work performed by respondent-plaintiff from RD No.5 to 71/2 in Bisalpur Sub Division under Agreement No.43/1979-80. Suit No.8/1985 pertains to recovery of Rs.29732/- in respect of lining work performed by the respondent- plaintiff from RD No.10 to 121/2 in Bisalpur Sub Division under Agreement No.12/1979-80. The material controversy in both the suits being identical, for the purpose of consideration of both the appeals, reference to facts of suit No.07/1985 is being taken.

Briefly stated, M/s Parnami Construction Company, Bikaner filed a civil suit against the State of Rajasthan and others, for recovery of Rs.22,717/- stating therein that the plaintiff-firm is a partnership firm and engaged in the business of contractor-ship. It has been alleged that the defendants No.2 to 5 invited tender for lining-work from R.D. No.5 to 7 1/2 in Sub Division Bisalpur, on behalf of defendant No.1 State of Rajasthan. The respondent- plaintiff also submitted his tender for the above work and the same was accepted. Work order was given to him and Agreement No.43/1979-80 was executed between the parties.

According to the plaint allegations, time was not essence of the contract. The respondent-plaintiff further alleged in the plaint that he completed the work on 26.06.1979. He also completed extra work entrusted to him. He alleged in para 8 of the plaint the defendants have not paid Rs.16,574/- and this amount was wrongly withheld by the appellant-defendants. It was also alleged in the plaint that as he has completed the work on 26.06.1979 and the payment has not been made to him, he is entitled for interest at the rate of 12% per annum. He claimed Rs.6,125/- as interest. In this manner, the respondent-plaintiff filed suit for recovery of Rs.22,717/-.

The appellant-defendants by written statement denied all the material facts pleaded by the plaintiff. They denied the fact that the respondent-plaintiff is a registered partnership firm. They also denied that time was not essence of the contract. They specifically stated that the time was essence of the contract according to condition No.2 of the Agreement entered into between the parties and also according to Schedule ''G'' & ''F'' attached to the Agreement. It was specifically mentioned that the work was to be completed within 3 months. According to Schedule-F, the date of commencement of the work was 31.03.1978 and the date for completion of the work was 30.10.1978.

The appellant-defendants also stated in their written statement that the respondent-plaintiff did not complete the work within the stipulated time, as he completed the work on 28.06.1979 after a delay of near about 8 months. The appellant-defendants also pleaded that the respondent-plaintiff is not entitled to recover the amount as pleaded by him in para 8 of the plaint. They also stated reasons for denial for each & every item stated in para 8 of the plaint.

On pleadings of the parties, 5 issues were framed. Witnesses were examined and after hearing arguments of the parties, the trial court passed judgment & decree on 06.11.1989. Aggrieved by the judgment & decree dated 06.11.1989, the appellant- defendants preferred this appeal on the grounds that the trial court has committed illegality in not framing proper issues in the matter and proceeded with the suit on improper issues and thereby, committed material illegality and irregularity in passing the judgment & decree against the appellant-defendants.

It was also contended that the appellant-defendants have specifically denied in their written statement that they do not know whether the respondent-plaintiff firm is a registered firm or not. In the face of this denial, the trial court should have framed issue whether the plaintiff firm is a registered partnership firm. The trial court has committed serious illegality in not framing an issue in this regard.

It was also contended that the plaintiff Hansraj, who appeared in the witness box, only stated that he is partner of the respondent-plaintiff firm but no Registration Certificate was exhibited. Copy of entry of the Register, showing name of the plaintiff as partner of the firm, has also not been exhibited.

Without producing documentary evidence, the plaintiff only tendered oral evidence, which is not admissible according to sec.91 of the Evidence Act.

It was further contended that the trial court also committed error of law in deciding issue No.1 against the appellant- defendants and holding that time was not essence of the contract. The decision of the trial court is erroneous inasmuch as clause 2 of the Agreement and Schedules F & G attached to the Agreement clearly provided that time for completion of the work was only 3 months from date of commencement. Thus, time was essence of the contract between the parties but the trial court committed illegality in holding that the Agreement executed between the parties was not on behalf of Governor of the State of Rajasthan as provided under Article 299 of the Constitution of India. The reason given by the trial court is not at all convincing because in the Agreement entered between the parties, due to printing error, the word ''Government'' was printed instead of ''Governor'' but the parties knew it very well that the Agreement was being entered into by defendants on behalf of Governor of State of Rajasthan.

It was contended that the trial court has committed illegality in deciding issue No.2 against the appellant-defendants. The trial court has not considered statements of witnesses produced by the defendants. It was also contended that the trial court has committed illegality in deciding issue No.4 against the appellant- defendants. The defendants have tendered evidence in support of this issue. As many as 3 witnesses were examined by which this issue fully stand proved but the trial court has not properly appreciated the evidence.

On the contentions raised by the appellant-defendants, considered pleadings of the parties and oral & documentary evidence available on record.

So far as question relating to not framing proper issue whether the plaintiff-firm was a registered firm or not, the plaintiff-firm M/s Parnami Construction Company pleaded that it is a partnership firm, doing business of contractor-ship and the defendants in the written statement admitted that the plaintiff- firm is a partnership firm, doing contractor-ship business but refused to admit whether it was registered or not. When it is admitted position that the plaintiff-firm is doing contractor-ship business and it was given the work as per tender and an Agreement was entered into between the parties as Agreement No.43/1978-79 and the dispute is regarding work undertaken by the plaintiff-firm under the Agreement; there is no dispute regarding partners of the firm, the respondent-plaintiff also tendered oral evidence regarding the fact that he is partner of the plaintiff-firm; the argument of the appellant-defendants in this regard is not sustainable.

So far as contention raised in respect of decision of issue No.1 is concerned, it was with regard to fact whether the time was essence of the contract or not. In this respect, the respondent- plaintiff in para 6 of the plaint stated that for completion of work, time was not essence of the contract but the appellant-defendants in their evidence and written statement stated that 3 months'' time was fixed for completion of the work and time was extended on request of respondent-plaintiff up to 26.06.1979 whereas the respondent-plaintiff actually completed the work on 28.06.1979.

The Agreement was executed by Executive Engineer, Rajasthan Canal Project on behalf of State of Rajasthan. It was also admitted by the appellant-defendants that final bill was prepared. Under these circumstances, when the Final Bill was prepared, no penalty can be recovered. From perusal of the Agreement as well as evidence on record, it is clear that time was not essence of the contract. The trial court has rightly decided issue No.1 in favour of respondent-plaintiff and against the appellant-defendants.

So far as contentions raised in respect of issue No.2 are concerned, perused the oral & documentary evidence placed on record. This issue was with regard whether the respondent- plaintiff is entitled to receive Rs.16,574/- as per para 7 of the plaint. From perusal of the evidence, it is clear that the defendants'' witness Krishna Kumar DW3 in his cross-examination admitted that final bill was Rs.4571/-. The total of final bill attached with the Agreement and as per statement of DW3 Krishna Kumar it appears that the amount of Rs.4571/- was rightly due but by way of over-writing, amount of Rs.2970/- was written. DW1 J.C. Makkad stated that excess payment was made in running bills and therefore, this amount was deducted but no such evidence has been placed on behalf of the appellant-defendants that how excess payment was made in the running bills. On the basis of evidence, the amount of Final Bill being Rs.4571/- is established.

The trial court after properly appreciating the evidence on record found that the respondent-plaintiff was successful in proving the due amount of Rs.16574/- against the appellant- defendants. Hence, the trial court has rightly observed and decided this issue in favour of respondent-plaintiff and against the appellant-defendants.

So far as contention raised in respect of issue No.3 is concerned, this issue is with regard to interest. The appellant- defendants only contended that the trial court has committed error in deciding issue No.3 but nothing has been stated as to what error has been committed by the trial court. The trial court has specifically stated that the respondent-plaintiff has claimed 12% interest from 26.06.1979 to 25.07.1982 but he has also contended that market rate is 18% per annum. The trial court while deciding the issue stated that on what basis market rate of 18% interest has been shown, no evidence has been produced on behalf of the respondent-plaintiff that at the relevant time the market rate was 18% and therefore, the trial court allowed interest at the rate of 12% per annum as claimed by the respondent-plaintiff in the suit. In the opinion of this Court, there is no illegality in deciding this issue.

So far as contentions regarding issue No.4 are concerned, the trial court framed this issue in respect whether the appellant-defendants are entitled to Rs.6525/- as per para 16 of the written statement. The trial court considered evidence of DW2 Visheshar Singh who in his statement stated that 423251 tiles were given to the respondent-plaintiff whereas only 414354 tiles were utilized for completion of the work and in this way, 8897 tiles were used in excess and 02 bags of cement were also excess used. As per BSR, 5 to 10 percent wear & tear is considered justified. If 5% of 423251 tiles is taken into account then the number comes to 20,000 tiles whereas actual tiles which were broken or used in excess are only about 8000. In this way, no such evidence was placed on record on behalf of appellant-defendants on the basis of which it can be inferred that the defendants are entitled to get amount of Rs.6525/- as per paras 15 and 16 of the written statement. The trial court has rightly decided this issue also after proper appreciation of evidence.

There is no ground for interference in the aforesaid judgments & decrees dated 06.11.1989 passed by the trial court. Both the appeals, being devoid of merits, are dismissed.