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2010 DIGILAW 1617 (PAT)

State Of Bihar v. Kailash Pd.

2010-07-22

MUNGESHWAR SAHOO

body2010
JUDGEMENT Mungeshwar Sahoo, J. 1. The State of Bihar and he authorities have filed this First Appeal against the judgment dated 25.11.1978 and the decree signed on 7.12.1978 by the learned First Additional Subordinate Judge, Muzaffarpur in Money Suit Nos. 59 of 1976/7 of 1978 decreeing the plaintiff/respondents suit for recovery of Rs. 11,409/- with interest at the rate of 0 per cent per annum. 2. The plaintiffs/respondents filed the aforesaid Money Suit claiming the reliefs for recovery of Rs. 11,409/- on the ground that he was a contractor and his tender being the lowest tender for constructing the Kumbha-Bajpatti Road was accepted by the appellant. Prior to the execution of agreement, the plaintiff visited the spot and found that there was a bridge after a distance of one mile and the said bridge was not fit for crossing the heavy vehicles. According to the plaintiff, he was to construct 11/2 kms. road but because of the bridge, it was not possible for him to construct road beyond the said bridge unless the bridge is repaired so that heavy vehicles could pass over it. The matter was discussed with the appellants and then a conditional agreement was executed and the appellants assured that the department would reconstruct/repair the bridge before the plaintiff would require the use of the bridge. The plaintiff was required for constructing the road up to bridge within June, 1974. 3. The further case of the plaintiff is that the bridge, in question, was never either reconstructed or repaired by the appellants as a result of which the plaintiff could not complete the work beyond the bridge. He completed the work of metalling the road up to the bridge only. Therefore, the department closed his work and final bill was passed on 29.8.1975 and payment for metalling the road up to the bridge was made to the plaintiff. It is, further pleaded that the defendant/appellant did not return the earnest money of Rs. 7,962/- deposited by the plaintiff/contractor nor paid the security money deducted from his own account bill on the ground that Accountant General objected to it. According to the plaintiff, it was not because of fault on the part of the plaintiff but because of fault on the part of the defendants/appellants the work beyond the bridge could not be completed and, therefore, the defendants/appellants are liable to return the said amount. According to the plaintiff, it was not because of fault on the part of the plaintiff but because of fault on the part of the defendants/appellants the work beyond the bridge could not be completed and, therefore, the defendants/appellants are liable to return the said amount. Notice u/s 80 CPC was served and then when the defendants did not care even to reply, the plaintiff filed the suit. 4. The appellants appeared and filed their contesting written statement. Besides taking various ornamental pleas, mainly it is contended that the plaintiff was allotted the metalling work for 1.75 miles for Rs. 94,605/- and accordingly, an agreement in F2-109/73-74 was executed on 25.3.74. The lame excuse made by the plaintiff for non-completion of work is not acceptable. The plaintiff had visited the site and in open eyes after visiting the bridge entered into the agreement. The allegation that conditional agreement was made is false and denied. The plaintiff applied seeking time to finish the work within June, 1974 up to the bridge and to complete the whole work within June, 1975 but he completed up to bridge side by 13th July, 1974 and did a few work beyond the bridge, without completing the same. The Executive Engineer earlier restricted the plaintiff to work up to bridge only for Rs. 50,000/- but because the plaintiff subsequently agreed to complete the whole work, the proposal to construct up to the bridge was suspended. 5. The further case of the defendants is that the other tenderer was granted the same work for same length of the road who completed the work and no objection was raised by him that the bridge was in such a dilapidated condition or that heavy vehicle would not pass. Since the plaintiff did not complete the work as agreed by him, he cannot be allowed to raise all these afterthought pleas. The value of the work done by the plaintiff was assessed at Rs. 43,089/-. The remaining work was to be completed through different agencies and, therefore, the defendants incurred a loss of Rs. 23,474/-. 6. The further case is that during the audit, Accountant General, Bihar suggested for action against the plaintiff and the plaintiff was knowing that the State of Bihar shall take action for realising damage from him, so, he filed this suit with false pleas. The department is bound to comply the audit objection. 23,474/-. 6. The further case is that during the audit, Accountant General, Bihar suggested for action against the plaintiff and the plaintiff was knowing that the State of Bihar shall take action for realising damage from him, so, he filed this suit with false pleas. The department is bound to comply the audit objection. The claim of the plaintiff is ill-founded and the interest claimed is exaggerated. The plaintiff himself could not complete the work because of paucity of fund, and therefore, the defendants are not responsible. 7. On the above pleadings of the parties, the learned court below framed as many as 8 issues. Out of 8 issues, issue Nos. 5 & 6 are as follows: Issue No. 5: Whether the Madhuban bridge was impassible for heavy traffic and whether it requires reconstruction or repair? & Issue No. 6: Whether the defendants are responsible for the non-completion of work by the plaintiff beyond the bridge? 8. The learned court below after considering the evidences on record came to the conclusion that Madhuban bridge was impassible for heavy transport and it requires reconstruction or repair and the plaintiff was handicapped to complete the work beyond bridge side due to it and on the basis of these findings, learned court below decreed the plaintiffs suit. 9. The learned G.A.-II appearing on behalf of the appellant submitted that the learned court below has wrongly decreed the suit filed by the plaintiff. According to him, with open eyes, the plaintiff entered into agreement and, therefore, he cannot be permitted to say that there was any conditional agreement between the parties and moreover, any oral evidence regarding terms and conditions of the agreement is barred u/s 92 of the Indian Evidence Act but the learned court below failed to consider these aspect of the matter and decreed the suit. The learned G.A.-II further submitted that according to the plaintiff himself prior to entering into agreement visited the bridge and thereafter, he entered into the agreement. In such circumstances, now the plaintiff cannot be allowed to put a condition for performance of the contract which was not embodied in the contract and say that unless that condition is performed by the defendants, he will not complete the work as agreed by him in the agreement. On these grounds, the learned G.A.-II submitted that the impugned judgment and decree are liable to be set aside. 10. On these grounds, the learned G.A.-II submitted that the impugned judgment and decree are liable to be set aside. 10. It may be mentioned here that in spite of service of notice, nobody appeared on behalf of the respondent when this appeal was heard. 11. In view of the above facts and circumstances and the submissions made on behalf of the appellant, the point arises for consideration in this appeal is as to whether there was any assurance by the defendant that the bridge will be repaired/reconstructed as alleged by plaintiff and whether the condition of the said Madhuban bridge was such that no heavy transport vehicle could pass over it and whether it required reconstruction/repair and whether because of non-repairing of the bridge by the defendants, the plaintiff could not complete the work? FINDINGS 12. According to the plaintiffs case, prior to agreement, he visited the spot and then could know that the bridge was in dilapidated condition and heavy transport vehicle could not pass over it. He informed the State authorities regarding the condition of the bridge and the said authorities/appellants assured him that the said bridge will be reconstructed/repaired before the plaintiff could use the same so that the plaintiffs work will not be hampered. On the contrary, the defendants stated that there was no such discussion between them and there was no such condition. 13. The parties have adduced oral as well as documentary evidences in support of their cases. Before going to the evidences of the parties, let us examine the point raised by the learned counsel appearing for the appellant that the oral evidence to prove the fact that is terms contrary to the terms and conditions mentioned in the agreement is inadmissible in evidence in view of Section 92 of the Indian Evidence Act. 14. Section 92 of the Evidence Act provides as follows: "92. Exclusion of evidence of oral agreement.When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1):........... Proviso (2):The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document. Proviso (3) to (6):" 15. Therefore, according to the proviso No. 2 of Section 92, the plaintiff can prove the oral agreement which was precondition for performance of the contract. Therefore, I find no force in the submission of the learned G.A.-II. Here the oral agreement alleged by the plaintiff is not inconsistent with the terms of the agreement. Now, let us see whether there was any such discussion and assurance between the parties regarding construction or repair of the said bridge which was condition precedent. It may be mentioned here that according to the plaint, after getting the work order, the plaintiff made repeated requests to repair/reconstruct the said bridge so that the work may be completed beyond the bridge but the same was not repaired. P.W. 1 in his evidence clearly stated that the bridge was not fit for passing any heavy transport. He brought this fact to the notice of the Executive Engineer and Superintending Engineer. They realised the trouble and assured him that the same will be repaired/reconstructed and they also assured that if the bridge will not be reconstructed/ repair, the plaintiff will be required to complete the work up to bridge only. In spite of his repeated requests, the bridge was neither reconstructed nor repaired and so it was impossible to complete the work beyond the bridge sc he left the same. On the other hand, the defendants witnesses i.e. D.Ws. 1, 6 & 10 have said that the bridge was not closed for passing of heavy vehicles. From perusal of Ext.-2, the letter written by D.W. 1 himself, it appears that plaintiffs have placed his difficulties at the time of execution of agreement.. Ext.-2/n is the letter written by Superintending Engineer dated 31.3.1974 to the Executive Engineer. From perusal of this letter, it appears that it is mentioned that the plaintiff contractor had put condition at the time of executing the agreement that if the bridge in question would be repaired only then he would be able to complete the work which was confirmed by the Superintending Engineer. From perusal of this letter, it appears that it is mentioned that the plaintiff contractor had put condition at the time of executing the agreement that if the bridge in question would be repaired only then he would be able to complete the work which was confirmed by the Superintending Engineer. Ext.-2/o is proposal regarding this fact written by Executive Engineer which was confirmed by the aforesaid Ext.-2/n. The another letter being Ext.-2/p dated 26.3.1974 by Executive Engineer to the Superintending Engineer also disclosed the same fact. D.W. 6 is the Executive Engineer who has given this proposal. Now, therefore, although there is denial on the part of the defendants that there was no such proposal that the plaintiff could complete the work only after repair/reconstruct the bridge but the documents referred to above speaks themselves. Apart from this, it may be mentioned here that there is no specific denial in the written statement of the defendant to the fact that the heavy vehicle could not pass on the said bridge. Therefore, since the fact pleaded by the plaintiff that heavy vehicle could not pass over the bridge stands admitted and needs no proof. 16. The plaintiff has proved many letters showing the correspondence between the parties regarding the reconstruction/repair of the alleged bridge. From perusal of Ext.-2/f and Ext.-2/p, it appears that it is mentioned there that the bridge could not be repaired because of paucity of fund. As stated above, the Exts.-2/n, 2/o, 2/p shows that Madhuban bridge was very weak but it could not be repaired because of paucity of fund. This Ext.-2/f is dated 24.9.1976. No doubt, D.W. 10 the then S.D.O. in-charge of the work in his evidence has stated that prior to March, 1975, the bridge was repaired but this part of oral evidence is belied by Ext.-2/f and Ext.-2/n. 17. From the discussion of the oral as well as documentary evidence as discussed above, it appears that there are oral evidence vs. oral evidence. In such circumstances, the documentary evidence are more important. Moreover, in the present case, the documentary evidences produced by the plaintiff-respondents are never denied. The genuineness of thesaid documents are not challenged. Moreover some of the documents are in the pen of the defendants. In such circumstances, the documentary evidence are more important. Moreover, in the present case, the documentary evidences produced by the plaintiff-respondents are never denied. The genuineness of thesaid documents are not challenged. Moreover some of the documents are in the pen of the defendants. As discussed above, these documents amply prove the fact that prior to entering into agreement, the plaintiff was assured that the Madhuban bridge shall be repaired/constructed by the defendants prior to the completion of the metalling of the road by the plaintiff up to said bridge. The said documents as discussed above also prove the fact that the bridge was in dilapidated condition but because of paucity of fund, the defendants did not repair/reconstruct the bridge and, therefore, the plaintiff could not complete his work beyond the said bridge. 18. In view of my above discussion, I find that the plaintiff has been able to prove that the defendants assured him that the bridge in question will be repaired/reconstructed as alleged by the plaintiff and also I find that Madhuban bridge was in such condition that no heavy transport vehicle could pass over it and it required reconstruction/repair and because of non-repairing of the bridge, the plaintiff could not complete the work. In other words, the defendants made the work impossible to be completed by the plaintiff. The finding of the learned Court below of these points, therefore, needs no interference as such they are confirmed. 19. The plaintiff in the plaint has given the calculation regarding the amount claimed in separate schedule. After considering the materials available on record, the learned Court below found that the plaintiff is entitled to a decree for a sum of Rs. 7,808/- only and granted the decree with interest at the rate of Rs. 6 per cent per annum. Against that part of the finding, the plaintiff has not filed any cross-objection. The appellants have also not addressed the Court on that issue. Accordingly those findings of the Court below are also confirmed. 20. In the result, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs.