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2014 DIGILAW 310 (TRI)

Director General of Police v. Bijoya Das

2014-08-04

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:-- 1. This first appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 05.06.2008 and 19.06.2008 respectively, passed by learned Civil Judge, Sr. Division, Court No. 1, West Tripura, Agartala in Money Suit No. 37 of 2003. 2. Heard learned counsel Mr. Niharendu Majumder for the appellants and learned counsel Mr. D.K. Biswas for the respondent. 3. The respondent as plaintiff (hereinafter mentioned as plaintiff) instituted the suit inter alia contending that Sub Divisional Police Officer (for short, SDPO), Sadar, now Lembucherra, as per instruction of Superintendent of Police (SP, for short), West Tripura asked her to get some construction/repairing works of barracks etc. for the Assam Rifle Jawans of 26 Assam Rifles at Abhicharan Camp and also asked her to execute the works on emergency basis and as per the verbal instruction of SDPO, she took up the 11 items of works for construction/repair at Abhicharan Camp of 26 Assam Rifles and completed the works within the stipulated time as desired by the SDPO. After the works were completed in the month of June, 2000, Major/Captain Adjutant of 26 Assam Rifles communicated a completion report in writing to SP, West Tripura, Agartala. After receipt of the completion report, the works were verified by an officer of SP, West Tripura with an Engineer and they were satisfied with the works executed by the plaintiff and thereafter measurement of the works were made and entered in the Measurement Book (for short, M.B.). The plaintiff thereafter submitted bills amounting to `7,31,329/- for all those 11 items of works to the SP, West Tripura through SDPO, Sadar and was expecting payment within short time but received no response from the defendants. The plaintiff contacted with the authorities of the Police department for her payment but got no fruitful result. Thereafter, Addl. SP(Rural) by writing a letter dated 21.01.2002 asked her to remain present in a meeting on 22.01.2002 at 12-30 hours in the chamber of the Addl. The plaintiff contacted with the authorities of the Police department for her payment but got no fruitful result. Thereafter, Addl. SP(Rural) by writing a letter dated 21.01.2002 asked her to remain present in a meeting on 22.01.2002 at 12-30 hours in the chamber of the Addl. SP (Rural) and accordingly, she attended the meeting and convinced the authority that the works were executed to the full satisfaction of the authorities for which Major/Captain Adjutant of 26 Assam Rifles communicated a completion report to SP, West Tripura and the measurement of the works were made and recorded in M.B. and she insisted payment but even thereafter payment was not made as per her demand. On 20.08.2003 she made a written application to the SP, West Tripura for making her payment and demanded that in case the payment not made immediately, interest @15% per annum will be charged. Even thereafter payments were not made and so she served notice under Section 80(1) of CPC on 1st September, 2003. But after lapse of statutory period of notice, payments were not made and hence, she filed the suit for recovery of the amount of `7,31,329/- with interest @15% per annum from the date of completion of the work. 4. The defendant-appellants (hereinafter mentioned as defendants) contested the suit by filing written statement denying all the averments made in the plaint and contended that there is nothing to show that any codal formalities were observed and any work order was issued by the competent authority to the plaintiff to execute the works on emergency basis. SDPO never instructed the plaintiff to execute any such work at Abhicharan camp of 26 Assam Rifles. There was no contract between the plaintiff and the defendants for execution of any work in writing. Since no codal formalities were observed and no work order was issued, the plaintiff is not entitled to get any relief in the suit. It is further contended that SP, West Tripura, vide Office Order No. 1(17)/SP/PS/W/98/1764-69 dated 14.12.2001 constituted a committee consisting of Sr. officers of the police department and they verified the works alleged to have executed by the plaintiff and submitted their report in writing on 29.06.2002 observing that the works executed by the plaintiff was valued at `1,76,498/- and that the claim made by the plaintiff of `7,31,660/- was not at all justified. officers of the police department and they verified the works alleged to have executed by the plaintiff and submitted their report in writing on 29.06.2002 observing that the works executed by the plaintiff was valued at `1,76,498/- and that the claim made by the plaintiff of `7,31,660/- was not at all justified. It is also contended that before inspection of the work by the committee, Addl. SP(Urban), West Tripura also assessed the works and found that the works executed was valued about`1,91,298/-. It is contended by the defendants that the plaintiff did not execute the work valued `7,31,660/- and no proper measurement as alleged was recorded and so the plaintiff is not entitled to get a decree of the amount claimed and the suit is liable to be dismissed. 5. The trial Court considering the pleadings of the parties formulated 4(four) issues namely-- i. Whether the suit is maintainable? ii. Whether the defendants issued work order in favour of the plaintiff and plaintiff performed the works? iii. Whether the plaintiff is entitled to get decree along with interest and cost as claimed in the suit? iv. Whether the plaintiff is entitled to get any other relief/relieves having regard to the facts and circumstances of the case? 6. In course of trial, the plaintiff examined herself as P.W. 1 and in support of her case proved the following documents-- Exhibit 1--Completion Report filed by Major/Captain of 26 Bn. Assam Rifles vide his letter addressed to the Superintendent of Police, West Tripura (defendant No. 2). Exhibit 2--Copy of the letter written by plaintiff addressed to the Superintendent of Police, West Tripura (defendant No. 2) requesting for payments for the works executed by her. Exhibit 3-Copy of letter of Additional Superintendent of Police (Rural) addressed to plaintiff dated 21.1.2002 requesting her to attend meeting on 22.01.2002. Exhibit 4-Copy of letter of plaintiff addressed to Superintendent of Police, West Tripura (defendant No. 2) dated 20.8.2002 requesting for making payment and in the event of failure to make payment claiming interest @ 15% per annum and Exhibit 5-Copy of the notice issued by the Advocate of plaintiff to the three defendants under Section 80, C.P.C. by Special Messenger. Exhibit 4-Copy of letter of plaintiff addressed to Superintendent of Police, West Tripura (defendant No. 2) dated 20.8.2002 requesting for making payment and in the event of failure to make payment claiming interest @ 15% per annum and Exhibit 5-Copy of the notice issued by the Advocate of plaintiff to the three defendants under Section 80, C.P.C. by Special Messenger. On the prayer of the plaintiff, M.B. of the works alleged to have executed by the plaintiff and the bills raised by the plaintiff were called from the office of defendant No. 2 and the plaintiff also proved those M.B. and 11 Nos. of bills and those were also exhibited namely Exhibit-A and Exhibit-B series. 7. On behalf of the defendants, one witness namely Dilip Debbarma as D.W. 1 was examined and on their behalf defendants, 3(three) items of documents were proved and marked as Exhibit C to Exhibit E series namely-- Exhibit C Series--Copy of letter of the Superintendent of Police dated 14th December, 2001 forming a Committee to inquire into the matte pending payment of the bills; Exhibit D Series--Report of the Inquiry Committee filed with Superintendent of Police, West (defendant No. 2) and Exhibit E Series--Letter of the Superintendent of Police, West Tripura (defendant No. 2) addressed to the Director General of Police, confirming receipt of the notice issued by plaintiff under Section 80, C.P.C. 8. The trial Court decided all the issues in favour of the plaintiff and accordingly decreed the suit. Hence, this appeal. 9. Learned counsel Mr. Majumder appearing for the defendant-appellants has submitted that the completion report of the work as claimed by the plaintiff was submitted by the Major/Captain Adjutant of 26 Bn. Assam Rifles but the authorities of the Assam Rifles has not been made a party in the suit and so the suit is bad for non-joinder of necessary party. Learned counsel Mr. Biswas has submitted that Abhicharan camp, for accommodation of Assam Rifles jawans, was arranged by the police department of the Govt. of Tripura and the camp was set up for preventing extremists’ activities. Since Assam Rifles Jawans were staying in Abhicharan camp, after the works were executed by the plaintiff, the Major/Captain Adjutant of the Assam Rifles camp simply communicated a completion report to SP. No stress of imagination can suggest that Assam Rifles is a necessary party in the suit for adjudicating upon the issues. Since Assam Rifles Jawans were staying in Abhicharan camp, after the works were executed by the plaintiff, the Major/Captain Adjutant of the Assam Rifles camp simply communicated a completion report to SP. No stress of imagination can suggest that Assam Rifles is a necessary party in the suit for adjudicating upon the issues. Further, no such issue was raised before the trial Court and this issue has been unnecessarily raised in the appeal. 10. On perusal of the pleadings and evidence of the parties, I find that simply a communication was made by the Major/Captain Adjutant of 26 Assam Rifles regarding completion of works. It is an admitted position that police department of the Govt. of Tripura has got a camp at Abhicharan to accommodate Assam Rifles personnel and there is nothing that the works were executed at the instance of Assam Rifles rather the plaintiff alleged that the works were executed as per the verbal instruction of SDPO, Sadar pursuant to a direction of SP, West Tripura and the defendants also contended in Exhibit-D series that at the relevant point of time there were series of extremists incidents in West Tripura District and therefore, the officers of the department could not take proper care and attention of the works alleged to have executed by the plaintiff. The works were verified by the officials of the defendants and there is nothing to show that Assam Rifles authorities had any sorts of involvement in the execution of the work. So, this argument of learned counsel Mr. Majumder is found to be of no merit and accordingly rejected. 11. Next argument advanced by learned counsel Mr. Majumder is that the plaintiff insisted that she executed 11 items of works at Abhicharan camp of 26 Bn. Assam Rifles in the year 2000 and submitted bills for those 11 items of works claiming `7,31,329/-. To verify and re-assess the works, SP, West Tripura constituted a committee consisting of three senior officers of the West Tripura Police Administration headed by the Addl. SP and that committee after verification and re-assessment of the works, submitted a report which has been proved as Exhibit D series on behalf of the defendants and that report shows that there was no work at all of barrack Nos. 1, 2 and 3. It is further submitted by Mr. SP and that committee after verification and re-assessment of the works, submitted a report which has been proved as Exhibit D series on behalf of the defendants and that report shows that there was no work at all of barrack Nos. 1, 2 and 3. It is further submitted by Mr. Majumder, learned counsel that no such work to the extent valued `7,31,329/- was executed by the plaintiff and on verification by the committee, it was found that works valued at about `1,76,498/- was executed and the plaintiff cannot get more than that amount. Since no tender process was followed inviting quotations from other contractors and since no work order was issued for the alleged construction/repairing works, the plaintiff’s claim cannot be entertained based on the report submitted by Major/Captain Adjutant of Assam Rifles and the impugned entry in the M.B. The plaintiff since did not come in clean hand, her entire claim is liable to be rejected. 12. Learned counsel Mr. Biswas for the plaintiff-respondent, on the other hand, has submitted that it is an admitted position that there was an abnormal situation at that time in West Tripura District because of extremists’ activities. Assam Rifles personnel were deputed at Abhicharan, an extreme interior locality of the State and the plaintiff being a bona fide contractor of the Govt. of Tripura and specially executing the works of the police department, was verbally asked by the SDPO, Sadar to execute the works on emergency basis as desired by SP, West Tripura and as per direction of SDPO, the plaintiff executed the work by June, 2000 and after the work was completed the Major/Captain Adjutant of the Assam Rifles who were occupying the camp submitted a report to SP, West Tripura that the works were completed in 11 items including that of three new barracks for the accommodation of Assam Rifles Jawans. The execution of the works was verified by the officers of the police department and the works were measured and recorded in the M.B. The plaintiff thereafter submitted her bills for those 11 items of work through SDPO and SDPO certified the bills which were submitted to SP, West Tripura for making payment. The defendants were sitting over the bills, did not make payments in time. The defendants were sitting over the bills, did not make payments in time. The committee to verify the works was constituted in the month of June, 2002 i.e. after two years of the execution of the works and the committee submitted a vague report which is not tenable in law and fact. Further, at the time of alleged verification by the committee, the plaintiff was not asked to remain present and in her absence the verification/re-assessment was made which is evident from Exhibit-D series and therefore, no reliance can be placed on that verification/re-assessment report for determination of the claim of plaintiff. It is candidly submitted by Mr. Biswas, learned counsel that the defendants by submitting Exhibit-D series rather admitted the claim of the plaintiff as a whole. There is no room of suspicion of the claim of the plaintiff. The plaintiff being a bona fide contractor was verbally asked by SDPO to execute the works and the plaintiff submitted her estimate for the works and copies of those estimates have been produced on record. There is no room of any suspicion in the execution of the work since the defendants did not raise any point that no such work at all was made. They have only raised a point after two years of execution of the works that the works to that extent were not executed whereas there was entry in the M.B. of the works done by the plaintiff for which the plaintiff submitted her bills and Exhibit-A and Exhibit-B series clearly proved the case of the plaintiff. 13. At the very outset, I am constrained to observe that the suit is an instance of poor pleadings by both side. Neither the plaintiff nor the defendants, as it appears, came before Court with clear pleadings in respect of their stand. The trial Court, however, decided the issues and decreed the suit. 14. The plaintiff claimed that she was verbally directed by the SDPO to execute the works of construction/repairing of 26 Bn. Assam Rifles camp at Abhicharan Para. Accordingly she executed the works in 11 items and in the month of June, 2000 the works were completed and Major/Captain Adjutant of the Assam Rifles camp sent a completion report to SP, West Tripura. Assam Rifles camp at Abhicharan Para. Accordingly she executed the works in 11 items and in the month of June, 2000 the works were completed and Major/Captain Adjutant of the Assam Rifles camp sent a completion report to SP, West Tripura. The plaintiff in her pleadings did not state as to on which date the verbal instruction was given and on which date she started the work and completed the work. The defendants at the first instance denied the entire claim of the plaintiff but later on admitted that the plaintiff executed the works valued `1,76,498/- and thereby admitted that the plaintiff executed the works at Abhicharan Camp in the year 2000 and certain works were positively done. 15. Let us now see whether the plaintiff could prove her case. The plaintiff in para 4 of the plaint stated that she executed the following works:- “4. That, the S.D.P.O. Sadar verbally asked the plaintiff to execute the following works:- i. Construction of Jawans barrack for 26 Assam Rifles at Abhicharan camp (size: 50’ X 20’) (4 chalas with verandah and partition (Barrack No. 1). ii. Construction of Jawans barrack for 26 Assam Rifles at Abhicharan Camp (size: 50’ X 20’ ft.) (4 Chalas with verandah and partition) (Barrack No. 2). iii. Construction of Jawans barrack for 26 Assam Rifles at Abhicharan camp (size: 50’ X20’ ft.) (4 chalas with verandah and partition) (Barrack No. 3). iv. Construction of JCO club barrack for 26 Assam Rifles at Abhicharan camp (4 chalas with verandah and partition) (size: 45’ X 18’). v. Construction of HQ barrack for 26 Assam Rifles at Abhicharan camp (4 chalas with verandah and partition) (size: 45’ X 18’ ft.). vi. Construction of office cum wireless barrack for 26 Assam Rifles at Abhicharan Camp (4 chalas with verandah and partition) (Size: 45’ X 18’). vii. Construction of kitchen cum store for 26 Assam Rifles at Abhicharan camp (4 chalas with verandah and partition) (size: 45’ X 18’ ft.). viii. Construction of Dining Hall cum recreation for 26 Assam Rifles at Abhicharan camp (size: 45’ X 18’ ft.) (4 chalas with verandah & partition). ix. Construction of boundary fencing around the camp for 26 Assam Rifles at Abhicharan camp. x. Construction of 2 Nos. Verandah, one Officer’s kitchen and latrine, fencing and partition/ceiling for 26 Assam Rifles at Abhicharan camp officer including front side boundary fencing of officers’ barrack. xi. ix. Construction of boundary fencing around the camp for 26 Assam Rifles at Abhicharan camp. x. Construction of 2 Nos. Verandah, one Officer’s kitchen and latrine, fencing and partition/ceiling for 26 Assam Rifles at Abhicharan camp officer including front side boundary fencing of officers’ barrack. xi. Construction of one Goal-Ghar for 26 Assam Rifles at Abhicharan camp (size: 25’ X 25’ ft.).” 16. In para 8 of the plaint, the plaintiff stated that she submitted the bills for an amount of `7,31,329/- for the following items of work:- 17. At the time of recording evidence, on the prayer of the plaintiff, the Measurement Book and the bills presented by the plaintiff for the works alleged to have done by her were called by the trial Court and the defendants produced the Measurement Book and the bills before the Court from their custody and those were marked as Exhibit-A and Exhibit-B series respectively. Exhibit-A clearly shows that the measurement of the works were entered in the Measurement Book by an Assistant Engineer and it was countersigned by the SDPO, Sadar, West Tripura. Exhibit-B series shows that those are 11 items of bills submitted by the plaintiff and those bills were checked by the Assistant Engineer who measured the works and made entries in the Measurement Book (Exhibit-A) and the bills were countersigned by the SDPO. It is, therefore, evident that after the works were executed by the plaintiff, the Major/Captain Adjutant of 26 Assam Rifles sent a report in writing in the month of June, 2000 to SP, West Tripura reporting completion of the works by the plaintiff and thereafter measurement of the works were done by one S. Chowdhury an Assistant Engineer of TIDC, Agartala and the Measurement Book as well as the bills of the plaintiff were countersigned by the SDPO. The defendants now cannot go back to those documents prepared at their instance. There is no pleading that the Assistant Engineer or the SDPO were unauthorized people to record the M.B. or to countersign the M.B. and the bills. It is, therefore, evident that certain verbal orders were made by SDPO directing the plaintiff to execute the works as alleged and according to such verbal orders the works were executed. 18. Obviously, the government works must be executed observing the codal formalities inviting tender etc. but no such procedure was followed in the present case. It is, therefore, evident that certain verbal orders were made by SDPO directing the plaintiff to execute the works as alleged and according to such verbal orders the works were executed. 18. Obviously, the government works must be executed observing the codal formalities inviting tender etc. but no such procedure was followed in the present case. The defendants by filing Exhibit-D series i.e. the verification/reassessment report submitted by the Committee of the police officers that there was an abnormal situation at that time prevailing in the interior areas of West Tripura District because of extremists activities at different places and for some other reasons as stated in the report and under such circumstance, while it was an abnormal situation, SDPO directed the plaintiff to execute the works for the accommodation of the Assam Rifles personnel at Abhicharan and accordingly, the works were executed. Exhibit-E proved by the defendants also supporting the case of the plaintiff. It is a letter written by SP, West Tripura to the Director General of Police dated 10.12.2003 in respect of notice under Section 80 CPC served by the plaintiff wherein it is clearly stated that the construction works were undertaken without proper work order during the year 2000 and for clearance of the claim, a Committee was constituted for submitting a report on the works done. The defendants even after taking meeting with the plaintiff pursuant to their letter dated 21.01.2002, marked Exhibit-3, did not settle the claim of the plaintiff though the bills were submitted in the year 2000. Thereafter, the plaintiff wrote another letter dated 20.08.2003 but received no response from the defendants. Ultimately, the plaintiff served notice under Section 80 CPC on 01.09.2003 and after receipt of that notice also the defendants did not take any step to settle the claim of the plaintiff. Such inaction on the part of the defendants for a pretty long time after the works were executed by the plaintiff cannot be appreciated by a Court of equity and hence in my considered opinion, the trial Court rightly decided the suit against the defendants. Such inaction on the part of the defendants for a pretty long time after the works were executed by the plaintiff cannot be appreciated by a Court of equity and hence in my considered opinion, the trial Court rightly decided the suit against the defendants. Exhibit-D series i.e. the Committee report constituted by the SP cannot be the basis for deciding the claim of the plaintiff since it was an action taken by the defendants after two years of execution of work and further at the time of alleged verification by the Committee, the plaintiff was not asked to remain present and to say her grievance or claim. Exhibit-D series, therefore, deserves no consideration in the eye of law. On the other hand, I find that Exhibit-A, the Measurement Book was prepared by an Assistant Engineer and was countersigned by the SDPO. 11 items of bills were raised by the plaintiff and those bills were also certified by the Assistant Engineer and SDPO. So, based on Exhibit-A and Exhibit-B Series, the claim of the plaintiff may fairly be adjudicated and I find nothing wrong in the judgment passed by the trial Court. 19. In view of the discussions made above, the appeal is found to be devoid of any merit and hence, it stands dismissed. 20. No costs. 21. Send back the L.C. record along with a copy of this judgment.