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2017 DIGILAW 772 (HP)

State of H. P. v. Pardeep Kumar

2017-07-06

SURESHWAR THAKUR

body2017
Sureshwar Thakur, Judge. The plaintiff instituted a suit against the defendants, wherein, he claimed a relief for declaration and for permanent prohibitory injunction. The suit of the plaintiff stood decreed by the learned trial Court. In sequel thereto, the defendants/appellants herein are driven to institute the instant appeal herebefore. 2. Briefly stated the facts of the case are that the plaintiff is a contractor duly enlisted with the Himachal Pradesh Public Works and has been executing works for various departments of defendant No.1. During the course of his business as contractor, the plaintiff had entered into a contract with defendant No.1 through defendant No.2 for the execution of work of “Balance work of Mubarkpur Ranital Kangra Road, Section Bharwain to Matau in Km 85/75 to 145/0 (Sh. Cutting Earthwork, C/o retaining walls, Culverts, Parapets, drain and metalling in Km 138/0 to 141/0)”. The plaintiff has pleaded and claimed that the formal agreement for the work was duly executed between the parties and the same has been numbered as agreement No.105 of 1998-99 in the office of defendant No.2. The plaintiff has further pleaded and claimed that the work was awarded to the plaintiff on 12.01.99 for a tendered cos of Rs.73,98,221/- and with a stipulated time of nine months for its completion, which was to be reckoned from the 15th day of the issue of the letter of award and thereafter the work was stipulated to be started by 27.01.1999 and completed by 26.10.1999. The plaintiff has pleaded and claimed that as per the standard conditions of the agreement the plaintiff was also required to execute 1/8th work in ¼th of the time stipulated, 3/8th of the work in ½ of the time and 3/4th of the work within ¾ of the time. It has been further pleaded that the time stipulated for the completion of the work was stipulated to be the essence of the contract but the contract agreement also contains provisions for extension of time in the event of the plaintiff having been hindered in the execution of the work on account of reasons beyond his control, and the agreement also contains provisions for payment of compensation for delay in the execution of the work and as such the time stipulated for completion of the work ceased to be of the essence of the contract. The plaintiff has further pleaded that the agreement also contains provisions relating to the manner in which the work was to be executed and also required the defendants to make available the site for the work, required quantities of the stipulated materials like cement, blasting material and steel and also stipulated that regular payments would be made to the plaintiffs every month by the defendants by a fixed date. The plaintiff has also pleaded that no specific order of performance of the respective promises was expressly fixed by the agreement but the nature of the transaction between the parties required the defendants to perform their part of the promises relating to the aforesaid requirements. The plaintiff has further pleaded and claimed that he made all necessary arrangements of men, material and machinery for the timely execution of the work but he was prevented from executing the work, as per his planning as the payments for the work done by him were inordinately delayed and even the materials required for the execution of the work were not supplied to the plaintiff in time, as a result of which, he was unable to achieve the progress as contemplated by the provisions of the contract despite bringing these facts to the knowledge of the officials of the defendants. The plaintiff has further pleaded and claimed that instead to honour and comply with the contract and provide the materials and the payment, the defendants started issuing letters threatening action under the penal provisions of the contract and finally vide order dated 9.6.2000, the defendants determined and imposed compensation amount to Rs.7,39,821/- for alleged delay in the execution of the work under clause 2 of the agreement vide letter dated 2.8.2000 and thereby to rescind and to forfeit the security deposit of the plaintiff amount to Rs.1,00,000/- which actions of the defendants have been pleaded and claimed by the plaintiff to be wrong and illegal, in view of the fact that the plaintiff was not given an opportunity to be heard and delay has been pleaded and claimed on account of failure to comply the conditions of the agreement by the defendants to the execution of the work and thereby the plaintiff has pleaded and claimed that to determine and impose compensation amount to Rs.7,39,821/- and to forfeit the security deposit of the plaintiff, amounting to Rs.1,00,000/- is wrong and illegal as well as without any jurisdiction and thereby liable to be restrained from recovering such amount as the plaintiff has specifically pleaded and claimed that this part of dispute has never been adjudicated upon and the subject matter of arbitration between the parties and thereby after serving with legal notice dated 30.05.2001 filed the present suit for declaration and injunction. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objection inter alia jurisdiction, maintainability, estoppel, valuation and limitation. On merits, the defendants have admitted the status of the plaintiff to be a contractor as well as to award the contract to the plaintiff as per terms and conditions of the contract including stipulations incorporated therein. However, the defendants have denied failure to comply with the terms and conditions for making available the material for the execution of the work as pleaded by the plaintiff including payments thereof and thereby the defendants have pleaded and claimed that the plaintiff has failed to execute the work as per terms and conditions and thereby has been rightly held liable for compensation including forfeiture of security deposit strictly in terms and conditions of the agreement to execute the work and thereby have prayed for the dismissal of the suit. 4. 4. The plaintiff/respondent herein filed replication to the written statement of defendants/appellants wherein, he denied the contents of the written statement and reaffirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the action of the respondent imposing compensation for alleged delay in completion of the work under Clauses 2 of Agreement No.105 of 1998-99 relating to balance work of Mubarakpur Ranital Kangra Road section Bharwain to Mataur in K. 85/750 to 145/0 “(SH:cutting in earthwork, C/o for retaining Walls, culverts, parapets, Drains and metalling in Km 138/0 to 141/0)”vide letter dated 9.6.2K and subsequently rescinding the work after forfeiting the security deposit, is arbitrary and is not binding upon the plaintiff? OPP 2. If issue No.1 is decided in favour of the plaintiff to what relief he is entitled?OPP 3. Whether the order of the defendant for forfeiting the security deposit amount is illegal and without jurisdiction?OPP 4. Whether the plaintiff is entitled for the money decree as prayed for?OPP 5. Whether this Court has no jurisdiction to hear the present suit in view of arbitration clause? OPD 6. Whether the present suit is not maintainable? OPD 7. Whether the plaintiff is estopped from own act and conduct from maintaining the present suit?OPD. 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction fee? OPD. 9. Whether the suit is not within limitation?OPD 10. Whether the plaintiff has not completed the work within stipulated period? OPD. 11. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. 7. Now the defendants/appellant herein, have instituted the instant Regular First Appeal before this Court, for assailing the findings recorded by the learned trial Court in its impugned judgment and decree. 8. OPD. 11. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. 7. Now the defendants/appellant herein, have instituted the instant Regular First Appeal before this Court, for assailing the findings recorded by the learned trial Court in its impugned judgment and decree. 8. The validity of the order recorded by the defendants/appellants herein upon the plaintiff/respondent herein, wherein compensation stood foisted upon the latter, for his allegedly delaying the completion of awarded work(s) beyond the period stipulated in the relevant contract, also whereby, the defendants forfeited the security deposit of the plaintiff, “stood contested” by the plaintiff on the ground of (a) there occurring gross evident failure of the defendants to within time supply vis-a-vis him, the blasting material and cement etc., thereupon, his standing precluded to abide by the terms and conditions of the relevant contract. (b) The defendants withholding defrayment to him of amount(s) comprised in bills raised with respect to his completing some portion(s) of the awarded work. In respect of proving the aforesaid breaches made by the defendants with respect to the relevant contract, the plaintiff stepped into the witness box. The learned counsel appearing for the defendant subjected him to the ordeal of a rigorous cross-examination, yet during course thereof “his” testification, borne in his examinationin- chief, wherein, he made echoing with respect to the contractual breaches aforesaid occurring on the part of the defendants, remained unshared of its tenacity. Consequently, with hence the plaintiff discharging the onus of proving the apposite issue, it was incumbent upon the defendants to adduce best evidence for hence dislodging the tenacity of his testification. Contrarily, one of the defendants' witness, namely, Shri B.S. Thakur, in his testification occurring in his cross-examination “admitted” that he had sought elicitations from the Junior Engineer concerned with respect to the executory progress made by the plaintiff, in respect of the works awarded to him also therein he admitted the factum of the Junior Engineer concerned preparing report(s) in respect thereto, yet the Junior Engineer concerned “stood not” led into witness box nor also the reports purportedly prepared by him, revealing the speed or the indolence with which the plaintiff was executing the awarded work(s) also remained unadduced into evidence. Consequently, for non adduction of the aforesaid best evidence, it cannot be firmly concluded that there occurred any negligence or indolence on the part of the plaintiff to within the contractual period completely execute the awarded work(s). Moreover, the defendants “did not” for belying the testification recorded by the plaintiff, wherein, he hence affirmatively discharged the apposite onus cast upon him, adduce the best documentary evidence comprised in the relevant records/measurement books maintained by them holding thereon, the signatures of the plaintiff, also “reflective” of the defendants' by ensuring prompt supply of wherewithals/relevant material, demanded by the plaintiff, hence theirs performing their contractual obligations in respect thereof, whereupon, alone it would have been befitting to conclude that the plaintiff “despite being” with utmost promptitude besides regularity supplied all wherewithals/relevant material, his hence not utilizing them also would yield a conclusion that thereupon his openly breaching the terms of the relevant contract enjoining him to complete the works awarded to him “within time prescribed therein”. Contrarily, the withholding(s) by the defendants of all the aforesaid material(s) embodying therein all the portrayals aforesaid, “sparks” a firm inference that the defendants “did not” within time nor with regularity supply all the relevant wherewithals/relevant material(s) “to the” plaintiff, whereupon, he became incapacitated to within the time ordained in the relevant contract, hence complete the relevant works awarded to him, corollary whereof is that, there “can not” be any imputation of dereliction vis-a-vis the plaintiff in his not completing the awarded work(s) within the contractual period. Consequently, it is held that the impugned judgment and decree does not suffer from any perversity or absurdity of mis-appreciation of evidence on record. 9. In view of the above discussion, the present Regular First Appeal is dismissed and the impugned judgment and decree is maintained and affirmed. All pending applications also stand disposed of. No order as to costs.