The Managing Director, Karnataka Road Development Corporation vs Vishal Infrastructure Limited

N. Kumar, J—This is the defendant''s regular first appeal, challenging the Judgment and Decree of the trial Court which has decreed the suit of the plaintiff in part with proportionate cost and directed the defendant to pay a sum of Rs. 32,41,000-00 with interest at 6% from 15.11.2005 till realization.

For the purpose of convenience, the parties are referred to as they were referred to in the original suit.

The plaintiff was a successful tenderer for maintenance contract of State Highway, Hassana, for the year 2001-02. The Said work was given together with a contract agreement for carrying out the work on 21.04.2001. The plaintiff commenced the work in all earnestness and carried out some portion of the work. He also executed certain additional work, for which he requires extra quantity of material. His case is that there was interference in the work carried on by it from the local authorities in respect of shifting of electric and water lines, cables and also road side shops, sheds and garbage in certain area. They affected progress of the work and the work was delayed. Within 22.04.2002, it was not possible for the plaintiff to complete the work. However, he completed the work by 30.06.2002. The department has issued certificate certifying the satisfactory completion of the work. The amount of more than Rs. 50,00,000-00 was not released for the work executed and payments were delayed for about 8 to 10 months because of the internal matters of the defendant department. The delay in payment of the bills is also cause for delay in completion of the work. Therefore, the plaintiff gave a representation with reasons for delayed work. The defendant has withheld an amount of Rs. 108.05 lakhs out of running bills on the ground that there was a delay in completion of the work. Subsequently, a sum of Rs. 75.64 lakhs was released and a sum of Rs. 32.41 lakhs was with held. The reason is out of 79 days delay, 24 days is not properly explained. Thereafter, the plaintiff got issued a legal notice calling upon the defendant to pay a sum of Rs. 32,41,000-00 with 12% interest amounting in all Rs. 77,31,730-00.

After service of summons, the defendant entered appearance through their counsel and filed their written statement. They have referred to various contract entered into between the parties. They contend that out of 79 days delay in completing the work being satisfied with 55 days delay. They withheld a sum of Rs. 32,41,000-00 for 24 days delay in completing the work.

On the basis of the aforesaid pleadings, the trial Court framed the following issues:

(1) Whether plaintiff proves that for valid reasons entrusted work was not completed thereby defendant has no authority to impose penalty for delay?

(2) Whether plaintiff proves that he had carried additional work?

(3) Whether plaintiff proves that he is entitled for a sum of Rs. 77,31,730-00 from the defendant?

(4) Whether the suit of the plaintiff is barred by limitation?

(5) Whether plaintiff is entitled for relief sought for?

(6) What decree or order?

The plaintiff examined one Sri. B.K. Krishnamurthy as P.W. 1, produced 7 documents, which are marked as Exs. P1 to 7. The defendant did not step into the witness-box. No documentary evidence was produced.

The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the unchallenged oral evidence of P.W. 1 and Exs. P1 and 3 are sufficient to prove that the plaintiff has got valid reasons for non-completion of the entrusted work within the prescribed period. From the pleadings of the defendant itself it is clear that the defendant authority has got right to relax the condition of the work order in respect of time limit. The defendant has already relaxed 55 days delay. In those circumstances, the defendant had no authority to impose penalty for 24 days delay. The plaintiff also carried out additional work. In those circumstances, trial Court held that withholding of Rs. 32,41,000-00 which is legitimately due to the plaintiff is without the authority, illegal and therefore, it partially decreed the suit of the plaintiff for a sum of Rs. 32,41,000-00 with 6% interest. Aggrieved by the said Judgment and Decree, this appeal is filed.

There is a delay of 1521 days in preferring this appeal. One S. Dwarkinath, Executive Engineer in-charge, Karnataka Road Development Corporation Limited has sworn to the affidavit stating that the impugned Judgment and Decree dated 17.03.2011 has not come to the notice of the appellant. It came to know of the same after receipt of the summons dated 19.02.2015 in Execution Case No. 25001/2015. The said summons, was received in the concerned section on 02.03.2015. On 03.03.2015, the counsel applied for certified copy of the impugned Judgment and Decree. It was obtained on 07.04.2015. It was forwarded to the appellant and thereafter, immediately this appeal is filed. The aforesaid averment in the affidavit only states the facts. It does not explain the cause for the delay.

Admittedly, the suit summons was served. The defendant entered appearance through the counsel. Filed a detailed written statement. P.W. 1 was cross-examined. When the case was set-down for the defendant''s evidence, they did not appear to adduce oral and documentary evidence. Thereafter, the Judgment was pronounced on 17.03.2011. No explanation is forthcoming why after the Judgment and Decree, immediately an application is not filed for certified copy. It also does not disclose who is the official, who was in-charge of this case, who is the advocate, who was conducting the case. Why the Advocate and the party remained absent and why immediately after the Judgment and Decree, certified copy is not applied for and also what transpired during this 4 years.

Though Section 5 of the Limitation Act provides that the appellant or the applicant satisfy the court that he had sufficient cause for not preferring the appeal or making the application within such period, the delay could be condoned. No cause much less sufficient cause is set-out in the affidavit filed in support of the application. What is set-out is mere facts of what transpired after the Court issued a notice in the Execution Case. In that view of the matter, we do not see any justification to condone the delay of 1521 days delay in filing the appeal.

The facts set-out above clearly demonstrate the irresponsibility on the part of the officials of the department, who were in-charge of the case as well as the counsel, who was engaged. Absolutely, no action is yet taken against the counsel and the erring official, who was in-charge.

As the facts set-out makes it very clear that the contractor has completed the work, also carried on additional work, there is a delay of 79 days. He has given reasons, out of which 55 days delay was accepted. For mere delay of 24 days, an amount of Rs. 32,41,000-00 is said to be withheld from the running bills, which is legitimately due to the plaintiff. We see no justification. Therefore, in terms of the Judgment and Decree, the appellant has to pay the amount to the plaintiff/respondent, who was succeeded in the suit. It is open for the appellant to initiate appropriate action against the erring official who was in-charge of the case as well as the counsel, who had conducted the case on their behalf and recover from them the said amount if they so desire. Accordingly, I.A. No. 1/15 filed for condonation of delay of 1521 days in filing the appeal is dismissed. Consequently, the appeal is also dismissed. In the circumstances, I.A. No. 2/15 filed for stay does not survive for consideration. Hence, I.A. No. 2/15 is rejected. No costs.