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Tripura High Court · body

2015 DIGILAW 385 (TRI)

Subrata Chakraborty v. State of Tripura

2015-06-18

S.TALAPATRA

body2015
ORDER : 1. Heard Mr. D.K. Biswas, learned counsel appearing for the appellant and Mr. N. Majumder, learned counsel appearing for the respondents. 2. This appeal filed under Section 100 of the C.P.C. arises from the judgment and decree dated 04.06.2011 delivered in Money Appeal No. 3 of 2009, by the District Judge, West Tripura, Agartala. 3. It is to be noted that fundamentally this appeal questions the concurrent finding of fact as returned by the impugned judgment. This appeal was admitted on the following substantial questions of law: Whether the question of limitation having not been pleaded in the written statement can be raised by the defendants in the first appellate court? 4. Mr. D.K. Biswas, learned counsel appearing for the appellant has made a very pointed submission that the first appellate court has failed to inquire the aspects of admission made by the defendants in the written statement. He has further proceeded to say that if those admissions by the pleadings are considered, it would be apparent that the defendants have admitted the whole claim of the plaintiff. 5. Mr. Biswas, learned counsel in order to substantiate such submission has further submitted that the so called reassessment was made at the back of the plaintiff. Therefore, no inference whatsoever can legally be drawn against the claim of the plaintiff on the basis of such reassessment. From the other side, Mr. N. Majumder, learned counsel appearing for the respondent has submitted that such reassessment was made by the defendants much before the payment was made to the plaintiff and due communication was made to the plaintiff on the exercise of reassessment. The plaintiff even participated in the process. 6. Even it has been categorically stated that after reassessment the plaintiff was apprised that he would be entitled to the sum of Rs. 1,94,142/-. The receipt of that sum has not been questioned by the plaintiff. However, the plaintiff’s claim was much more i.e. his total claim was Rs. 4, 03,065/- on payment of Rs. 1,94,142/- the remainder of the claim was discarded by the respondent as the sum on reassessment according to them was the final settlement for execution of various works of the police organisation. 7. Mr. Majumder, learned counsel, having made reference to the written statement has submitted that presence of the plaintiff-appellant during reassessment has been categorically pleaded in the written statement. 7. Mr. Majumder, learned counsel, having made reference to the written statement has submitted that presence of the plaintiff-appellant during reassessment has been categorically pleaded in the written statement. Even the records to the effect were enclosed therewith. The plaintiff has failed to prove that the exercise of the reassessment was undertaken in his absence by rebutting those pleadings. 8. Moreover, after submission of the examination-in-chief under Order XVIII, Rule 4 of the C.P.C. the plaintiff did not make himself available for the cross-examination, simply on consideration of that aspect of the matter, the entire evidence of the plaintiff is liable to the discarded from consideration. 9. After considering the written statement, this Court does not find that in anywhere the respondents have admitted that the plaintiff is entitled to get a sum of Rs. 4,03,065/- rather they have categorically stated that inflated bills were submitted by the plaintiff and merely those bills were forwarded to the competent authority. That does not or cannot amount ‘admission’ as to entitlement of the plaintiff of the amount. 10. It has been contended that after proper reassessment, the bill was settled at Rs. 1, 94,142/. The plaintiff is not entitled to any further amount beyond that. As such, the claim of Rs. 2, 08,923/- was never admitted by the defendants as it was acceded that the petitioner was entitled to that sum. Moreover, at the time of receipt of the said amount, the plaintiff did raise any objection. 11. On the face of concurrent finding returned by both the courts observing that no evidence could be advanced by the plaintiff in support of his claim. This Court is unable to accept any plea in this regard. Even no finding is required to be recorded on the substantial questions of law as formulated by this Court. 12. Having observed thus, this appeal being devoid of merit is dismissed. 13. Prepare the decree accordingly and send down the LCRs thereafter.