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2008 DIGILAW 871 (CAL)

Raharman Prodhan v. STATE OF WEST BENGAL

2008-08-28

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment :- BHASKAR BHATTACHARYA, J (1) THIS appeal is at the instance of the plaintiff in a suit for recovery of money and is directed against the judgment and decree dated 15th September, 1998 passed by the Civil Judge (Senior Division), Jalpaiguri in Money Suit No. 10 of 1993 thereby dismissing the suit filed by the appellant. (2) THE appellant before us filed a suit being Money Suit No. 10 of 1993 in the court of Assistant District Judge, Jalpaiguri, thereby praying for a decree of rs. 3,80,585. 73p. with interest and the case made out by the appellant may be summed up thus: (a) The plaintiff was an enlisted Government Contractor under the directorate of Irrigation and Water-works of the Government of West Bengal and had executed and completed several works in the past with the full satisfaction of the Department, its Officers and Engineers. (b) The plaintiff submitted tenders in response to notice inviting tender No. 22 of 1989-90 for Serial Nos. 15 and 16 on 11. 4. 90. The works were intended for the protection of left bank of the river Leesh near Bagrakote area of b. G. Railway Bridge in P. S. Mal, District" jalpaiguri, from Ch. OM to 206 m against Serial No. 15 and from Ch. 206 to 412 M against Serial No. 16. The estimated amount against both the Serial Nos. 15 and 16 was rs. 1,24,088/-each. The plaintiff submitted tender at 2. 29% and 2. 21% below the schedule rate for work of Serial Nos. 15 and 16 respectively. (c) The defendant no. 2, on behalf of the Government of West Bengal, accepted the plaintiff"s tenders and issued work-orders vide Memo No. 949 dated 15th May, 1990 for Serial No. 15, the tendered amount being rs. 1,21,246/- and Memo No. 950 dated 15th May, 1990 for Serial No. 16, the tendered amount being Rs. 1,21,222/- intimating that the time for completion was one month and a half to be reckoned from 18th May, 1990. (d) The plaintiff, without wasting anytime after the receipt of the work-orders, commenced the respective works on 19th May, 1990 as per alignment given by the Executive Engineer, Jalpaiguri Irrigation Division and the sub-Divisional Officer, Karatowa Talma Irrigation Sub-Division, P. O. Mal, district" jalpaiguri. There were other working agencies at the site. (d) The plaintiff, without wasting anytime after the receipt of the work-orders, commenced the respective works on 19th May, 1990 as per alignment given by the Executive Engineer, Jalpaiguri Irrigation Division and the sub-Divisional Officer, Karatowa Talma Irrigation Sub-Division, P. O. Mal, district" jalpaiguri. There were other working agencies at the site. The plaintiff and those contractors tried to convince the said two Officers of the Government about wrong alignment pointing out that the alignment given on that day was almost near the middle portion of the river but the concerned Officers paid no heed to the observations of the plaintiff and the other contractors. (e) The earth of the site was hard and splint and hence, the work had to be executed with the help of Poklin machine, which was within the knowledge of the Department. The work in question was executed to a considerable extent as per the instruction and at the same time, from time to time, directions were given by the concerned Engineers. On 10th June, 1990, the defendant no. 2 visited the site and intimated the plaintiff that the alignment so given by the Executive Engineer and the S. D. O. was wrong and incorrect and that the alignment would be changed. Then, on 14th June, 1990, the concerned Executive Engineer confirmed that alignment given by him was wrong and that new alignment would be given soon. At that stage, the plaintiff requested him to take measurement of the work done by him till then. The plaintiff was requested on the same date to ask for measurement in writing through proper channel and accordingly, the plaintiff submitted a letter on 14th June, 1990 stating facts mentioned above and prayed for measurement of the work already done. (f) On 16th June, 1990, due to devastating flood of Leesh river, the work done up to that date as well as the stacked boulder were washed away and such facts were well within the knowledge of the Department; but as in spite of the assurance and written request, the measurement of the said work was not taken by the Department, the plaintiff submitted another letter on 25th June, 1990 stating all those facts and prayed for payment for the works already done. The plaintiff then submitted another letter on 28th June, 1990 correcting some defect in the earlier letter dated 25th june, 1990 to the Executive Engineer through proper channel claiming a sum of Rs. 2,25,824/- and asking for new alignment. (g) The Department did not give new alignment till March, 1991, nevertheless, it was interesting to note that the Department handed over memo No. 71 dated 5th February, 1991 of the Office of the S. D. O. to the plaintiff asking him to start and expedite the work for quick progress and on 12th March, 1991, the Executive Engineer handed over Memo Nos. 334 and 335 both dated 12th March, 1991 to the plaintiff and threatened to impose a penal clause on the ground of alleged violation of terms of agreement inasmuch as the Sub-Divisional Officers by Memos No. 134 dated 12. 3. 91 confirmed new alignment was given on that day i. e. 12. 3. 91. It was therefore clear that Memo Nos. 71, 331 and 335, as referred to above, have got no basis at all and the plaintiff kept the same on record by letter dated 17. 3. 91 addressed to the Executive Engineer through proper channel. (h) The plaintiff commenced the work as per new alignment given on 12. 3. 91 and measurement was taken only with respect to some work out of that work done then. As the plaintiff"s claim dated 28. 6. 90 was not attended to, the plaintiff had to submit a letter on 5. 6. 91 urging for payment of dues of Bill dated 28. 6. 90 as well as on account bill on the basis of measurement taken on 29. 5. 91. (i) That on 15. 6. 91, the defendant no. 2 visited the site and ordered stay of the execution of the work with respect to Ch. OM to 206m on the ground of further change of alignment of the work and the S. D. O. subsequently confirmed the same by Memo No. 424 dated 20. 6. 91. The plaintiff, however, was allowed to complete the work with respect to Ch. 206 to 412 m and the payment therefor has long been paid to the plaintiff. It may be recalled that a sum of Rs. 6,000/- was paid to the plaintiff by way of running account bill with respect to work done and measurement taken concerning Ch. 91. The plaintiff, however, was allowed to complete the work with respect to Ch. 206 to 412 m and the payment therefor has long been paid to the plaintiff. It may be recalled that a sum of Rs. 6,000/- was paid to the plaintiff by way of running account bill with respect to work done and measurement taken concerning Ch. OM to 206 M. (j) The plaintiff was assured that on giving further new alignment for Ch. OM to 206 M, he was required to execute the work and hence, the plaintiff, in usual course, did not remove the establishment set up by him at the site as well as for guarding the work already done and stacked boulder in respect of Serial No. 15 as final measurement was not taken with respect to work done in spite of plaintiff"s letter dated 22. 7. 91. However, only in the middle of 1992, the S. D. O. informed the plaintiff verbally that the further work of Serial No. 15 would not be done and then only the plaintiff prayed for release of the security money. (k) The defendant did not pay the dues as well as did not take any measurement of the said work and hence, on 7. 8. 92, the plaintiff sent letter through proper channel addressed to the Executive Engineer stating all the facts. The plaintiff in the said letter raised bill amounting to rs. 1,35,625/-in respect of work done against Serial No. 15 after further new alignment was given on 12. 4. 91 and adjustment of on account payment of Rs. 6,000/ -. The plaintiff specifically stated in the said letter that if the said sum was not paid within 30 days from the date of receipt of that letter, the defendants and for that matter, the Department should be bound and liable to pay interest @ 12% p. a. on the said amount from 1. 7. 91. (l) By the said letter, the plaintiff requested the Executive Engineer to arrange for payment of Rs. 1,24,824/- and 12% interest p. a. thereon from 28. 6. 90 and also for payment of Rs. 1,35,625/- within one month but the defendants did not pay the said amount. The plaintiff was entitled to get the said amount with interest @ 12% p. a. from the defendants and the defendants were bound and liable to pay the same to the plaintiff. 6. 90 and also for payment of Rs. 1,35,625/- within one month but the defendants did not pay the said amount. The plaintiff was entitled to get the said amount with interest @ 12% p. a. from the defendants and the defendants were bound and liable to pay the same to the plaintiff. (m) The defendants failed and neglected to pay the said amount legally entitled to the plaintiff although the defendants are bound and liable under the law to pay the said amount and the interest thereon @ 18% p. a. In spite of letter dated 7. 8. 92 and oral request made on several occasions to the respective Engineers of the Department, the defendants and their engineers had not paid any heed whatsoever. (n) The plaintiff in the circumstances had to issue notice under Section 80 c. P. Code on 3. 5. 93 to the defendants under registered cover with A/d through his lawyer Sri Hiren Guha Thakurta, Jalpaiguri and the defendants has duly received the said notice. In spite of the said notice, the defendants had not paid the said amount with the interest thereon to the plaintiff and consequently, were liable legally to pay interest @ 18% p. a. from 28.6. 90 on Rs. 1,24,824/- as well as from 1. 7. 91 on rs. 1,35,625/ -. Thus, the plaintiff was entitled to the sum of rs. 2,60,449/-as claimed in plaintiff"s letter dated 7. 8. 92 as well as rs. 48,825/- being interest @ 12% p. a. on Rs. 1,35,625/- from 1. 7. 91 to 30. 6. 93 and Rs. 67,405/- being interest @18% p. a. on Rs. 1,24,824/- from 28. 6. 90 to 30. 6. 93 and Rs. 3,906. 73p. being interest @ 18% p. a. on rs. 2,60,449/-from 1. 7. 93 to 31. 7. 93 and thus, the total claim with interest as aforesaid came to Rs. 3,80,585. 73p. The plaintiff was also entitled to Rs. 800/- from the defendants being costs of notice as per provision of Order 20a Rule 1, C. P. Code. The suit was contested by the respondent by filing written statement as well as additional written statement and the defence of the respondent may be summed up thus:(1) The names of the works as mentioned in the advertisement were as follows: N. I. T. No. 22 of 89-90 " Sl. The suit was contested by the respondent by filing written statement as well as additional written statement and the defence of the respondent may be summed up thus:(1) The names of the works as mentioned in the advertisement were as follows: N. I. T. No. 22 of 89-90 " Sl. 15 of Executive Engineer, Jalpaiguri Irrigation Division I. Protection of the left bank of river Leesh near Bagrakote area at u/s. of Rly. Bridge in ? ? P. S. Mal, District Jalpaiguri from Chainage OM to Ch. 206 Mtr. Estimated Amount : Rs. 1,24,088=00 Name of Agency : Sri Raharman Prodhan Rate of Tender : 2. 29% below the rates of schedule Tender value of the work : Rs. 1,21,246/- Date of written commence the works order to : 18. 5. 90 Time allowed works to complete the : One and half months. Memo. No. for work order : No. 949 dt. 15. 5. 90 of the Executive Engineer, ? Jalpaiguri Irrigation Division. II. N. I. T. ? No. 22 of 89-90 Sl. No. 16 of Executive Engineer, Jalpaiguri Irrigation Division. ? Protection of left bank of river Leesh near Bagrakote area at u/s. of Rly. Bridge in P. S. Mal, ? Jalpaiguri from Ch. 206 Mtr. To 412 Mtr. Estimated Amount : Rs. 1,24,088=00 Name of Agency : Sri Raharman Prodhan Rate of tender : 2. 31% below the rates of schedule Tender value of the work : Rs. 1,21,222=00 Date of written commence the works order to : 18. 5. 90 Time work allowed to complete the : One & half months Memo. No. for work order. : No. 950 dt. 15. 5. 90 of the Ex. Engr. ? Jalpaiguri Irrigation Division. (2) The defendants denied that the plaintiff commenced work on 19. 5. 90 or that alignment was given wrongly near the middle of the river or that the plaintiff and other contractors complained about the wrong alignment or that the Officers did not listen to their objections. (3) The defendants denied that the earth at the site of work was hard or that the plaintiff resorted to mechanical excavation by use of Pokliein machine. (3) The defendants denied that the earth at the site of work was hard or that the plaintiff resorted to mechanical excavation by use of Pokliein machine. There was no provision for mechanical excavation in the schedule of works and if the plaintiff resorted to such excavation, it was done by him at his own risk and responsibility and the department had no liability to pay any extra rate for such work. (4) The defendants further denied that the work was executed by the plaintiff to a considerable extent as per directions of the concerned Officers. It is further denied that on 10. 6. 90, the defendant no. 2 visited the site and he told the plaintiff that the alignment given by the Executive Engineer and the S. D. O. was wrong and that the alignment would be changed. (5) The defendants denied that on 14. 6. 90 the Executive Engineer confirmed that the alignment earlier given was wrong and that the new alignment would be given soon or that the plaintiff requested him to take measurement of the work done till then. It is further denied that the plaintiff was requested to apply for measurement in writing through proper channel or that the plaintiff did so. (6) The defendants denied that on 16. 6. 90 due to flood of Leesh River the works done by the plaintiff as well as boulders stacked by him were washed away or that the department knew the said fact. The defendants further denied that the plaintiff applied in writing praying for measurement or that the department gave any assurance. The defendants further denied that the plaintiff submitted any letter praying for payment or at all. It was also denied that the plaintiff wrote any letter on 25. 6. 90 or 28. 6. 90 claiming Rs. 2, 25,824/- or that he asked for new alignment. (7) From the available record, it appeared that even the plaintiff failed to achieve progress in work up to 6. 4. 91 and that even on 3. 5. 91, the plaintiff did not start the work at all. The defendants denied that the plaintiff made any claim on 28. 6. 90 or that he submitted any bill on that date or that in prayed for any payment. (8) The 1/r. A. bill for the work amounting to Rs. 5569. 4. 91 and that even on 3. 5. 91, the plaintiff did not start the work at all. The defendants denied that the plaintiff made any claim on 28. 6. 90 or that he submitted any bill on that date or that in prayed for any payment. (8) The 1/r. A. bill for the work amounting to Rs. 5569. 00 was prepared and submitted by the S. D. O. /k. T. I. Sub-Division on 20. 6. 91 on the basis of measurement recorded on 29. 5. 91 in page no. 1 and 2 of M. B. No. 2086. The payment of the bill was cleared through Vr. No. 3 dated 10. 7. 91 from the office. S. D. O. /k. T. I. Sub-Division through his letter No. 424 dated 20. 6. 91 had already intimated the contractor that as per instruction of (Chairman, n. B. F. C. C.) during his visit at site on 15. 6. 91 the works would remain stopped until further notice. As such, any further execution of the work was totally abandoned. (9) The defendants denied that the department gave any assurance to plaintiff that the new alignment for Chain "o" metre to 260 M would be given or that the plaintiff would have to execute the said work or that on such assurance, the plaintiff did not remove his establishment from the site of work or that he kept guard for the work done or stacked boulders or that the final measurement was not taken as alleged or that the plaintiff submitted any letter on 22. 7. 91. (10) The defendants denied that the plaintiff sent any letter to the Executive engineer on 7. 8. 1992 claiming Rs. 1,35,625/- as alleged. The defendants further denied that the plaintiff was entitled to Rs. 1,35,625/- or any sum of money or that the defendants were liable to pay interest @ 18% or at all. They denied that the plaintiff sent any letter on 7.8. 1992 or he made oral request. They also disputed the legality of the alleged notice under Section 80 of the Code of Civil Procedure or their liability to pay a sum of rs. 3,80,585. 73p. with interest @ 18% per annum as claimed. They denied that the plaintiff sent any letter on 7.8. 1992 or he made oral request. They also disputed the legality of the alleged notice under Section 80 of the Code of Civil Procedure or their liability to pay a sum of rs. 3,80,585. 73p. with interest @ 18% per annum as claimed. (3) AT the time of hearing of the suit, three witnesses including the plaintiff deposed in support of the claim while two Officers of the defendants gave evidence in opposing the claim of the plaintiff. As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein was pleased to dismiss the suit. Being dissatisfied, the plaintiff has come up with the present first appeal. (4) MR Mukherjee, the learned Advocate appearing on behalf of the appellant has attacked the judgement and decree impugned by pointing out that the learned Trial Judge erred in law in totally ignoring Exhibits 3, 4, and 5 on the ground that the defendants did not receive those documents by totally misreading the depositions of the two witnesses for the respondents. Mr mukherjee submits that the D. W.-1 admitted in his evidence that it was not possible for him to remember the signature of all the staff of the office and that he was not sure whether the seals appearing on those documents were genuine or not. In such circumstances, according to Mr Mukherjee, there was no justification of disbelieving the assertion of the appellant that those were received by the staff of the office with the official seal. Mr Mukherjee further contends that the defendants even did not apply for verification of the seal of the office appearing on those documents. (5) MR. Mukherjee next contends that it was the duty of the respondent to disclose documents showing why no step was taken against his client for not completing the job within six weeks from May 14, 1990. According to him, adverse inference should be drawn against the respondents for non-production of all the relevant documents, which if produced would show the real fact. Mr mukherjee further submits that the respondent even did not answer the notice under Section 80 of the Code of Civil Procedure containing all the allegations contained in the plaint. He, therefore, prays for dismissal of the judgement and decree passed by the learned Trial Judge and for passing a decree as prayed for. Mr mukherjee further submits that the respondent even did not answer the notice under Section 80 of the Code of Civil Procedure containing all the allegations contained in the plaint. He, therefore, prays for dismissal of the judgement and decree passed by the learned Trial Judge and for passing a decree as prayed for. (6) MR Roy, the learned advocate appearing on behalf of the respondents, has, on the other hand, opposed the aforesaid contentions of Mr Mukherjee and has supported the judgement and decree passed by the learned Trial Judge. According to him, the learned Trial Judge after considering the evidence adduced on behalf of the parties having disbelieved the plaint case for absence of any documentary evidence in support of his claim, this Court should not take a different view from the one taken by the learned Trial Judge based on the selfsame materials. Mr Roy, therefore, prays for dismissal of this appeal. (7) THEREFORE, the question that falls for determination in this appeal is whether the plaintiff has established that it had done the work pursuant to the work-orders as claimed in the plaint. (8) AFTER hearing the learned counsel for the parties and after going through the materials on record, we find that it has been admitted by the defendants that the plaintiff was found to be the lowest tenderer in respect of Serial Nos. 15 and 16, as mentioned in the plaint. It further appears that the work-order was issued to the appellant on 18th May, 1990 with specific stipulation therein that the same was required to be completed within one month and a half from 18th May, 1990. According to the plaintiff, from the very next day, he commenced the work although wrong alignment was given by the concerned Engineer and in spite of pointing out such defective alignment, the same was not rectified. Ultimately, on 10th June, 1990, the defendant no. 2 visited the site and informed the plaintiff that the alignment, so given by the Executive Engineer and the S. D. O. earlier, was wrong and the same should be changed. On 14th June, 1990, according to the plaintiff, the Executive Engineer confirmed that the alignment earlier given by him was wrong and that fresh alignment should be given. 2 visited the site and informed the plaintiff that the alignment, so given by the Executive Engineer and the S. D. O. earlier, was wrong and the same should be changed. On 14th June, 1990, according to the plaintiff, the Executive Engineer confirmed that the alignment earlier given by him was wrong and that fresh alignment should be given. In view of such fact, the plaintiff immediately requested the said Engineer to take measurement of the work already done by the plaintiff based on such wrong alignment and accordingly, the plaintiff was requested to ask for measurement in writing through proper channel. Consequently, the plaintiff submitted a letter on 14th june, 1990 stating all the facts and praying for taking measurement of the work already done. However, on 16th June, 1990, there was a devastating flood in the river Leesh, as a result, the work done by the plaintiff was washed away. The plaintiff further submitted a letter on 25th June, 1990 stating all the facts and prayed for payment of the work done. Another letter was written on 28th June, 1990 pointing out some defect of the letter given by him dated 25th June, 1990. There is no dispute that until March 1991, no new alignment was given. (9) ACCORDING to the defendants, they did not receive any of the letters dated 14th June, 1990, 25th June, 1990 or 28th June, 1990. The learned Trial Judge accepted the aforesaid contention of the defendants and held that the plaintiff could not produce any register showing the actual work done by him and, therefore, dismissed the claim of the plaintiff. (10) IN our view, in the case before us, the approach of the learned Trial Judge was totally wrong. Although, in the written statement, all the allegations made in the plaint have been denied, the defendants have not disclosed their defence in anyway nor have they explained the reason why in spite of issuing work-order on 18th June, 1990 asking the plaintiff to complete the work within 45 days, they remained silent till March 1991 by not giving any alignment. It is not expected that without giving any alignment, the plaintiff would be asked to complete the work within 45 days. It is not expected that without giving any alignment, the plaintiff would be asked to complete the work within 45 days. The D. W.-1 in his cross- examination has, however, admitted that usually alignment is shown within 10 to 15 days after the work-order is issued and that before alignment is shown, the contractor cannot start work. In this case, no explanation has been given why alignment was given first time after 10 months from the issue of work-order when the work-order itself directs the contractor to complete the work within 45 days and at the same time, it is not the case of the defendants that the time-limit fixed in the work-order was extended by notifying such fact to the plaintiff. From the aforesaid conduct of the defendants any reasonable person will accept the version of the plaintiff that due to wrong alignment originally given by the defendants, the work done was washed away due to flood and the defendants were not agreeable to take the responsibility of the wrong alignment earlier given. (11) ALTHOUGH, the witnesses for the defendants tried to allege that the official seal appearing on Exbts. 3 to 5 were fake and those did not bear the signature of any of the employees of the defendants, in cross-examination, those witnesses were compelled to admit that it was not possible for them to recognise the signature of all the employees of the office and that they were not sure whether the official seal appearing on the Exbts. 3 to 5 were fabricated or not. In our opinion, on the face of such evidence, the learned Trial Judge erred in law in disbelieving the case of the appellant. (12) THE plaintiff, on the other hand, all through maintained that he did 90% of the work till 16th June, 1990 when everything were washed away in flood. In our opinion, the defendants having failed to disclose any material pointing out the reason for not giving any alignment from 18th May, 1990 till March 1991 although the work was required to be completed within 45 days, it is apparent that the plaintiff proceeded in accordance with the original work-order dated 18th may, 1990 on the basis of wrong alignment initially given by the concerned engineer. The D. W.-2 in his evidence stated that he did not enquire as to why the alignment was given in the month of March 1991. Such deliberate false statement of the D. W.-2 clearly established that the defendants were suppressing the real fact. (13) NO prudent man will believe the case of the defendants that although 45 days" time was granted to complete the work, it would not give any warning to the plaintiff for non-completion of the work nor would it enquire the reason for giving alignment in the month of March 1991, after the expiry of the time-limit of completion of the work. It is not even the case of the defendants that the work was abandoned earlier. In the written statement, the defendants even virtually denied the existence of flood, although, no such stance was taken in evidence. (14) WE, therefore, find substance in the contention of Mr Mukherjee, the learned advocate appearing on behalf of the appellant that the defendants deliberately suppressed their documents, which if disclosed, would indicate that the plaintiff commenced his job from 18th May, 1990 on the basis of the original alignment and substantially completed the same on 14th June, 1990. Even the selfsame allegation as contained in notice under Section 80 of the Code of Civil procedure as well as in the letters given in the month of June 1990 was not disputed by the defendants by giving any answer at any point of time. We are satisfied that those three letters were received by the office of the defendants by giving official seal and signature. No prayer was made on behalf of the defendants for appointment of an expert to prove the fabrication of the official seal appearing on Exbts. 3 to 5 by producing their real official seal. (15) IN such circumstances, we are left with no other alternative but to hold that the plaintiff has proved his claim of Rs. 2,60,449/-, which by addition of interest, as mentioned in the plaint, has become Rs. 3,80,585. 73p. (16) WE, therefore, set aside the judgment and decree passed by the learned trial Judge and grant a decree of the aforesaid amount by holding that the plaintiff has proved the receipt of Exbts. 3 to 5 and in view of non-denial of the allegation contained therein as well as of those contained in Exbts. 3,80,585. 73p. (16) WE, therefore, set aside the judgment and decree passed by the learned trial Judge and grant a decree of the aforesaid amount by holding that the plaintiff has proved the receipt of Exbts. 3 to 5 and in view of non-denial of the allegation contained therein as well as of those contained in Exbts. 14 to 16, it is apparent that the case made out in the plaint has been established. (17) THE appeal, thus, is allowed with costs which we assess at Rs. 10,000/ -. The suit filed by the plaintiff is decreed for a sum of Rs. 3,80,585. 73p. with interest at the rate of 18% per annum from the date of filing of the suit till realisation.