High Court · 2012

Heard Mr. P.K. Kalita, learned Counsel for the appellant and Mr.

2. This first appeal has been filed by the plaintiff against the Ju dgment and Decree dated 18-12-2002 passed by the learned Civil Judge (Senior Div ision), Lakhimpur, North Lakhimpur in Money Suit No.1/1987.

3. The facts of the case may be briefly noted.

4. Plaintiff is a Class-I registered Contractor under the Flood Con trol Department (now Water Resources Department), Government of Assam. Work orde r dated 30-01-1985 was issued to the plaintiff awarding contract work of constru ction of marginal embankment along right bank of river Sillay in Jonai Civil Sub -Division as the earlier contractor, who was awarded the contract, had abandoned the work. In the work order, the rate of work mentioned was as per the approved rate of 1981-82 whereas the work was allotted to the plaintiff in the year 1985 . Plaintiff undertook execution of the contract work on assurance of the Chief E ngineer to consider enhancement of the rate in due course. According to the plai ntiff, huge quantity of earth work executed by him were washed away by the river water. Width of river Sillay also increased which resulted in extra work. He ha d also to construct three numbers of ramps at different places after completion of the embankment on verbal orders of the Executive Engineer. Petitioner further claimed that his labourers numbering two hundred had to sit idle for more than one month as the Forest Department prevented the work from being executed on the ground that a portion of the work fell inside reserve forest land. Plaintiff st ated that he had completed 50% of the work allotted to him vide work order date d 30-01-1985 in 1985 and the remaining 50% in 1986 because of obstruction by For est Department. He raised the grievance that his final bill was not settled. Pla intiff had filed number of representations before the authorities of the Flood C ontrol Department for settlement of his dues but there was no response. His plea der’s notice also went unresponded. Ultimately, he filed Money Suit No.1/1987 ma king a total claim of Rs.9,02,132.15. He, however, stated that he had received R s.2,90,610/- from the department. Thus, he claimed that balance amount of Rs.6,1 1,522.15 was due to him by the department on account of the aforesaid work. He f urther claimed an amount of Rs.82,555.48 on account of interest. Thus, the suit was filed for realization of Rs.7,04,077.63 (Rs.6,11,522.15 + Rs.82,555.48) from the defendants.

5. The defendants filed written statement resisting the claim of th e plaintiff. Defendants stated that the lowest tenderer Shri AHSH Baruah was all otted the work at the lowest quoted approved rate which he completed. Plaintiff was allotted another work from ch.3450m to 4650m at the lowest quoted approved r ate of Rs.5.75 per cubic meter. It was contended that Rs.5.75 per cubic meter wa s the approved rate of 1984-85 and not of 1981-82. Other contentions of the plai ntiff were denied except construction of three ramps. As per computation of defe ndants, plaintiff was entitled to Rs.3,58,170/-, out of which payment of Rs.2,92 ,912/- was already made. Therefore, according to the defendants, an amount of Rs .65,258/- only remained to be paid to the plaintiff.

6. Plaintiff produced five witnesses and exhibited number of docume nts to support his claim. Defendants side cross-examined the witnesses produced by the plaintiff but did not produce any witness.

7. The trial Court by Judgment and Decree dated 04-11-1992 partly d ecreed the Money Suit for Rs.65,258/- as against the claim of Rs.7,04,077.63. Th e plaintiff filed first appeal against the said Judgment and Decree before this Court, which was registered as FA No.11/1993. This Court vide the Judgment and O rder dated 28-08-2001 after observing that there was no proper discussion and de cision on the essential points, set aside the Judgment and Decree dated 04-1 1-1992 and remanded the case to the trial Court for disposal afresh.

8. On remand, learned trial Court reframed the issues as under - 1. Whether there is cause of action for the suit?

2. Whether the plaintiff is entitled to the rates per cubic meter for differ ent works done by the plaintiff ?

3. one by the plaintiff ? Whether there is any discrepancy in the measurement of the earth works d

4. Whether the labourers engaged by the plaintiff numbering about 200 had t o sit idle due to the obstruction in performing the works by forest department a nd for the lapse of the defendants, and if so, whether the plaintiff is entitled to claim the wages/ compensation for those labourers ? Whether some contract works allotted to the plaintiff were cancelled ill 5. egally and with ulterior motive of the defendants and if so, whether the plainti ff is entitled to any compensation ?

6. Whether the height of the embankment as claimed by the plaintiff or that of the defendant is correct ?

7. To what relief if any, the plaintiff is entitled to?

9. The first issue was answered in favour of the plaintiff. On the issue of entitlement of the plaintiff to the rates per cubic meter, learned tria l Court on examination of the evidence on record partly decided that issue in fa vour of the plaintiff by allowing the prayer of the plaintiff for grant of one e xtra lead of 35 paise per cubic meter for the work done.

10. Issue Nos.3 and 6 were taken up together as the substance thereo f was identical. Learned trial Court held that plaintiff had carried out extra w ork of 1645 cubic meter of earth. Also the value of construction of ramp work wa s estimated at Rs.1,132/-.

11. On the claim of the plaintiff that his labourers numbering about 200 had to sit idle for over a month because of obstruction by the Forest Depar tment (issue No.4), learned trial Court found that no document or proof could be produced by the plaintiff in support thereof. Therefore, it was held that plain tiff is not entitled to any compensatory wages.

12. Issue No.5 was answered against the plaintiff as he could not pr oduce any material to substantiate his claim that other contract works allotted to him were illegally cancelled.

13. On due consideration, learned trial Court held that plaintiff is entitled to the following amount:- (i) arth work @ Rs.6.45 per m3 (ii) Payment for work done in Group 9 from ch.3450m to 4650m for 49677m3 of e = Rs.3,20,417/- Payment for earth work done in ch.2050m to 2200m and ch.2725m to 2800m f or 7986m3 of earth work @ Rs.5.85 per m3 (iii) = (iv) Payment for extra work of 1645m3 of earth work done @ Rs.6.10 per m3 Rs. 10,085/- For construction of 3 nos. of ramps TOTAL = Rs. 46,718/- Rs. 1,132/- Rs.3,78,352/- = = As a sum of Rs.2,92,912/- was already paid to the plaintiff, the amount due to t he plaintiff stood at Rs.85,440/- (Rs.3,78,352/- - Rs.2,92,912/-).

14. Thus the suit was decreed against the defendants for recovery of Rs.85,440/- with interest @ 6% per annum from the date of filing of suit till r ealization.

15. I have examined the pleadings exchanged and the evidence on reco rd, both oral and documentary. After due application of mind, I am of the opinio n that the issues framed were more or less correctly decided by the learned tria l Court on proper appreciation of the evidence on record, which does not call fo r further appraisal and scrutiny at this stage. Having regard to the nature of t he claim, this Court is of the considered view that it would be in the interest of justice if the Judgment and Decree of the learned trial Court is upheld. This Court, therefore, finds no good ground to interfere with the decision of the le arned trial Court.

16. Accordingly, appeal is dismissed. Judgment and Decree of learned trial Court dated 18-12-2002 is affirmed. Decree be prepared accordingly.

17. Registry to send down the LCR.