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2018 DIGILAW 1639 (HP)

Abdul Gaffar Wani through LRs. v. HPSEB

2018-09-12

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT : Chander Bhusan Barowalia, J. 1. The present regular second appeal has been maintained by the appellant (since deceased), who was the plaintiff before the learned trial Court (hereinafter to be called as “the plaintiff”), laying challenge to the judgment and decree, dated 06.03.2012, passed by learned District Judge, Shimla, H.P., in Civil Appeal No. 41-S/13 of 2009, whereby the judgment and decree, dated 30.06.2009, passed by learned Civil Judge (Sr. Div.), Court No. 1, Shimla, H.P, in Civil Suit No. 13-1 of 09/99, was modified by reducing the decree amount of Rs. 6,30,000/- to Rs. 3,15,000/-. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the plaintiff filed a suit for recovery of Rs. 7,30,000/- against the defendants, wherein it has been alleged that he is carrying on business of a Contractor and undertaking various type of works including loading, unloading and stacking of material and equipment. The defendants No. 1 & 2 required the services of the plaintiff for execution of aforesaid work for their Malyana store. The plaintiff undertaken to execute the aforesaid work, as such, the parties entered into an agreement, dated 15.10.1997, which commenced w.e.f. 01.10.1997 and was to end on 30.09.1998. As per the plaintiff since October, 1997 he started executing the work assigned to him by the defendants. Since October, 1997 to March, 1998, the plaintiff has submitted different bills to the defendants for the work done by him and total amount from the work done by him came to Rs. 4,57,349.56/-. As per the allegations in the plaint, after March, 1998, the plaintiff continued to work for the defendants, despite the fact that they were not paying him for the work executed by him. Accordingly, on 04.05.1998, the plaintiff served the defendants with a notice, wherein he claimed that he is entitled to a total sum of Rs. 11,13,793.09/-, however the defendants paid only Rs. 4,11,021.70/- to him. Thus, for the remaining amount, the plaintiff filed a suit for recovery against the defendants. 3. The suit of the plaintiff was contested by the defendants by filling written statement, wherein it has been averred that the entire work which was done by the plaintiff, has been recorded in the measurement books of the concerned Junior Engineer. 4,11,021.70/- to him. Thus, for the remaining amount, the plaintiff filed a suit for recovery against the defendants. 3. The suit of the plaintiff was contested by the defendants by filling written statement, wherein it has been averred that the entire work which was done by the plaintiff, has been recorded in the measurement books of the concerned Junior Engineer. It has been further averred in the written statement that the plaintiff is at liberty to see the measurement books maintained by the Junior Engineer to reconcile the quantum of work done by him. It has been denied that any sum is due to the plaintiff from the defendants. Lastly, a prayer for dismissal of the suit has been made. 4. On the pleadings of the parties, the learned trial Court framed the following issues for determination and adjudication of the case: “1. Whether the plaintiff executed the works for defendant in the amount of Rs. 11,30,793.09, as alleged? OPP 2. Whether the plaintiff has not been paid the balance amount of the works executed by him amounting to Rs. 7,26,951.39, as alleged? OPP 3. Whether the defendant is liable to pay any amount to the plaintiff, if so, to what extent? OPP 4. Whether the plaintiff is entitled to interest, if so, at what rate? OPP 5. Relief.” 5. After deciding issues No. 1 and 2 partly yes, issues No. 3 and 4 in affirmative, the suit of the plaintiff was partly decreed with costs. Subsequently, the defendants maintained an appeal before the learned first Appellate Court, which was partly allowed and the judgment and decree, passed by the learned trial Court was modified by reducing the decree amount of Rs. 6,30,000/- to Rs. 3,15,000/-. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law: “1. Whether the learned first Appellate Court could have reduced the decretal amount without recording reasons for reducing the amount? 2. Whether the learned first Appellate Court could have modified the decree passed by the learned trial Court on the basis of the records of the respondents even though the said records especially the measurement books, which were admittedly with the defendants- respondents were not produced in the Court?” 3. Whether the bills submitted by the plaintiff-appellant and proved as Ext. PW-2/J-1 to Ext. Whether the bills submitted by the plaintiff-appellant and proved as Ext. PW-2/J-1 to Ext. PW-2/J-35 could have been rejected simply on the ground that the same had not been verified by the Junior Engineer especially when the same were based on the collateral evidence in the shape of the challans of the defendants-respondents proved as PW-3/A-1 to PW-2/A- 613.” 6. Leaned Senior Counsel appearing on behalf of the appellants has argued that the learned first Appellate Court after upholding the judgment and decree of the learned trial Court, in para 27 of the judgment, without any reasons, reduced the amount from Rs. 6,30,000/- to Rs. 3,15,000/-, as such, the impugned judgment and decree required to be set aside by restoring the judgment and decree of the learned trial Court. On the other hand, learned counsel for the respondents has argued that the learned first Appellate Court has given findings as per law, as the plaintiff-appellant was only entitled for the payment of verified bills, therefore, the findings recorded by the learned first Appellate Court needs no interference. He has further argued that the interest awarded is on the higher side, as the bank interest in those days was not more than 8%, therefore the interest is also required to be reduced to 8%. In rebuttal, learned Senior Counsel appearing on behalf of the appellants has argued that neither any employee was examined by the respondents defendants, nor any measurement books were produced before the Court. 7. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 8. PW-1, Shashi Ram, Assistant Store Keeper of Malyana Store w.e.f. 1993 to 1998 has stated that the work force of the plaintiff has done work of loading, unloading and stacking of goods in Malyana Store and Ext. PW-1/A to Ext. PW-1/E are details of the work executed by the plaintiff from 03.10.1997 to 29.12.1997 and 02.02.1998 to 26.03.1998. PW- 3, Sher Singh Jyoti, Assistant Engineer tendered in evidence stock maintenance books and challans, Ext. PW-3/A-1 to Ext. PW-3/A-613. PW-4, Baldev Thakur, Store Keeper of Malyana Store w.e.f. February 1998 to March 1998 has stated that during this period, physical verification of store has been carried out. He could not state who had supplied the labour for physical verification. 9. PW-3/A-1 to Ext. PW-3/A-613. PW-4, Baldev Thakur, Store Keeper of Malyana Store w.e.f. February 1998 to March 1998 has stated that during this period, physical verification of store has been carried out. He could not state who had supplied the labour for physical verification. 9. PW-5, Mohammad Akbar has stated that he had been working with the plaintiff and the plaintiff and his work force had done loading, unloading and stacking of goods in the store of the defendants in the year 1997-98. He further stated that during this period no other labour had done the aforesaid work. 10. The plaintiff appeared in the witness box as PW-1 and supported the contents of his plaint in its entirety and stated that he is entitled to the suit amount with interest at the rate of 24%. 11. Against the evidence of the plaintiff, the defendants have examined DW-1, Vinod Kumar, Additional Junior Engineer, who tendered in evidence running bills Ext. DW-1/A, Ext. DW-1/B and mark X-1 to mark X-5. He also tendered in evidence purchase orders Ext. DW-1/C to Ext. DW- 1/F. He has stated that bills has been prepared on the basis of measurement books of the Junior Engineer concerned. However, this witness could not trace the measurement books in the record of the store and elsewhere. 12. DW-2, Sanjeev, Assistant Executive Engineer, Malyana Store in the year 1997-98, has stated that the work executed by the plaintiff has been entered in the measurement books by the Junior Engineer. He further stated that the defendants have paid for the work, however the plaintiff neither supplied labour for annual verification for store, nor labour was required for the purpose. This witness has tendered in evidence documents, Ext. DW-2/A to Ext. DW- 2/H and Ext. DW-2/J to Ext. DW-2/P. 13. Taking into consideration the statement of the plaintiff, he, while appearing in the witness box as PW-2 has proved on record the allotment of work for the period October, 1997 to September, 1998, vide Ext. PW-2A and the subsequent extension of the period till 31.12.1998, vide Ext. PW-2/B. In his examination-in-chief he deposed that though the list of the work done by him were supplied to him till March, 1998, however thereafter the defendants stopped giving him the details and the Junior Engineer prepared bills on his own. He proved on record the notices Ext. PW-2/C and Ext. PW-2/B. In his examination-in-chief he deposed that though the list of the work done by him were supplied to him till March, 1998, however thereafter the defendants stopped giving him the details and the Junior Engineer prepared bills on his own. He proved on record the notices Ext. PW-2/C and Ext. PW-2/D given by him to the defendants pointing out the fact of the lists not being supplied after March, 1998. He further proved on record notice, Ext. PW-2/E given to the defendants prior of filing the suit. He has proved on record letter written to Junior Engineer, Ext. PW-2/F and letter Ext. PW-2/G and Ext. PW-2/H letter received by him. He has also proved on record the bills, Ext. PW-2/J-1 to Ext. PW-2/J-35, raised by him on account of the work done. As per the statement of the plaintiff, there was a market usage of paying 24% per annum interest on delayed payments. He has further alleged that no other agency has been entrusted the work of loading and unloading. As per the cross-examination of the plaintiff, he has admitted that he received the payment from the defendants under protest, however he has categorically denied that the defendants deployed 6-7 persons in the store for doing the labour work and that he has not done any work pertaining to shifting and verification. 14. Ext. PW-1/A to Ext. PW-1/E and Ext. P-1 to Ext. P-6 are the lists bearing the signature of the Assistant Store Keeper of the defendants, which show the details of the work done by the plaintiff. The aforesaid lists had been duly proved by the plaintiff and had also been admitted to have been signed by the Assistant Store Keeper. Ext. PW-2/A to Ext. PW- 2/H are the letters exchanged between the parties and the notices issued by the plaintiff, which were also proved on record by the plaintiff and there is no cross-examination qua the same. As per the bills Ext. PW-2/J-1 to Ext. PW-2/J-35, the amount claimed by the plaintiff comes to Rs. 8,09,045.89/-, however when these bills are compared with the entry made in the store challans and SMBs, the total amount after deduction comes to Rs. 7,80,232.06/-, whereas the plaintiff restricted his claim to Rs. 7,30,000/-, including Rs. 1.00 lac regarding the cost of the work done during physical verification of the store. 15. 8,09,045.89/-, however when these bills are compared with the entry made in the store challans and SMBs, the total amount after deduction comes to Rs. 7,80,232.06/-, whereas the plaintiff restricted his claim to Rs. 7,30,000/-, including Rs. 1.00 lac regarding the cost of the work done during physical verification of the store. 15. From the above it is clear that the plaintiff has executed the work for the disputed period i.e. 01.10.1997 to 31.12.1998, amounting to Rs. 11,91,253.76/-, out of which, an amount of Rs. 4,11,021.70 has already been received by him and, therefore, the balance amount comes to Rs. 7,80,232.06, however the plaintiff has only claimed Rs. 7,30,000/- (including Rs. 1.00 lac as a verification charges) and after deducting a sum of Rs. 1,00,000/-, the amount payable to plaintiff by the defendants comes to Rs. 6,30,000/-. 16. Now coming to the reduction of the amount by the learned first Appellate Court is concerned, It can be simply stated that when some of the bills, as noticed by the learned Civil Judge, did not tally with the stock maintenance register, the learned first Appellate Court has reduced the decretal amount to Rs. 3,15,000/-. However, this reasoning seems to be without any basis, accordingly, substantial question of law No. 1 is answered holding that the findings recorded by learned first Appellate Court are perverse and without any reasons while reducing the decretal amount. Substantial question of law No. 2 is answered holding that as the measurement books were not produced by the defendants in the Court, there were no occasion to reduced the decretal amount on the basis of hypothesis and the findings are thus perverse. As far as substantial question of law No. 3 is concerned, the same is answered holding that as the bills were not verified by the Junior Engineer, the same were not liable to be rejected, as the bills were raised by the contractor and the defendants could have been produced the measurement books to rebut the same, thus the findings as recorded by the learned first Appellate Court in reducing the amount are perverse and without any basis. 17. In view of the what has been discussed hereinabove, the present appeal is allowed, the judgment and decree passed by the learned first Appellate Court is set aside and the findings recorded by the learned trial Court are upheld. 17. In view of the what has been discussed hereinabove, the present appeal is allowed, the judgment and decree passed by the learned first Appellate Court is set aside and the findings recorded by the learned trial Court are upheld. The appeal, so also pending applications, if any, stands disposed of accordingly.