High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.11.2007CORAMTHE HONOURABLE MR. JUSTICE S.TAMILVANANA.S.No.200 of 19961.The State of Tamil Nadu rep. by the Superintending Engineer, Highways and Rural Works, Madras Region, Patel Road, Guindy, Madras-25.2.The Divisional Engineer, Highways and Rural Works Department, Chengalpattu. .. Appellants/Defendants.. Vs ..T.R.Surrendranath .. Respondent/PlaintiffPrayer: Appeal against the judgment and decree dated 11.09.1995 madein O.S.No.11624 of 1988 on the file of the VII Assistant Judge, CityCivil Court, Chennai.For Appellants : Mr.V.Ravi, Special Govt. Pleader (AS)For Respondent : Mr.N.S.VarathachariJUDGMENTThis appeal is directed against the judgment and decreedated 11.09.1995 made in O.S.No.11624 of 1988 on the file of thelearned VII Assistant Judge, City Civil Court, Chennai.2.The appellants herein are the defendants before the trialCourt in O.S.No.11624 of 1988. The respondent/plaintiff had filed thesuit for declaration, permanent injunction and also for a directionto the appellants/defendants to pay a sum of Rs.92,000/- togetherwith interest at the rate of 6% per annum. The Court below hasdecreed the suit directing the appellants/defendants to pay a sum ofRs.50,000/- with proportionate costs. Aggrieved by the judgment anddecree passed by the Trial Court, the appellants/defendants havepreferred this appeal. https://hcservices.ecourts.gov.in/hcservices/

3.Mr.V.Ravi, learned Special Government Pleader (AS)appearing for the appellants/defendants submitted that the TrialCourt, without considering the evidence and the merits of the caseproperly, has decreed the suit directing the appellants/defendants topay a sum of Rs.50,000/- to the respondent/plaintiff, though therespondent/plaintiff had filed only a copy of the legal notice dated02.10.1994 sent by him, without any other supporting documents forclaiming Rs.92,000/-. According to the learned Special GovernmentPleader, the oral evidence of the respondent/plaintiff and the copyof the notice marked as Ex.A-1 would not be sufficient to establishthe case of the respondent/plaintiff to base the money claim, howeverthe Court below has decreed the suit for a sum of Rs.50,000/- withoutany supporting evidence.4.Per contra, the learned counsel appearing for therespondent/plaintiff submitted that the appellants/defendants havemarked 24 documents including the agreement dated 30.12.1986 enteredinto between the appellants/defendants and the respondent/plaintiffand the Assistant Divisional Engineer was examined as D.W.1.According to him, though the respondent/plaintiff has not producedsufficient supporting documents to establish his claim, in thewritten statement filed by the appellants/defendants, it has beenadmitted at para No.2 that the respondent/plaintiff had paid EarnestMoney Deposit of Rs.19,000/- and Additional Security Deposit ofRs.25,000/-, totally a sum of Rs.44,000/-. 5.It has been admitted by both the appellants well as therespondent herein that the first respondent had called for tendersfor the purpose of improving 'Kanchipuram bye-pass road, fromK.M.0/0:6/4, including construction of vented cause-way, at KM 5/2-4in lieu of the existing road dam". 6.According to the respondent/plaintiff, after theacceptance of his tender, he had collected the materials required forthe aforesaid construction work and also started the work. However,as the appellants/defendants had not removed certain obstructions,the respondent/plaintiff could not perform his part of the contractentered into on 30.12.1986 and due to the apprehension that theappellants/defendants would take penal action against therespondent/plaintiff, the suit was instituted for a declaration thatthe contract entered into between the appellants/defendants and therespondent/plaintiff herein on 30.12.1986 was unenforceable and for aconsequential permanent injunction, not to take any penal actionagainst the respondent/plaintiff based on the agreement. Therespondent/plaintiff had further pleaded in the suit for return of asum of Rs.92,000/- together with 6% interest per annum. However, therespondent/plaintiff had not produced any supporting documents tosubstantiate his claim of Rs.92,000/-. https://hcservices.ecourts.gov.in/hcservices/

7.The learned Special Government Pleader appearing for theappellants/defendants further contended that there was no breach ofcontract by the appellants, but the respondent/plaintiff had failedto perform his part of the contract, as per the tender, hence,subsequently the tender was cancelled and the work was allotted tosome other person. On the admission made by the appellants/defendantsin the written statement, it is clear that the respondent haddeposited Rs.44,000/- with the appellants towards Earnest MoneyDeposit (E.M.D.) of Rs.19,000/- and Additional Security ofRs.25,000/- and the said amount has not been returned to therespondent. There is no specific evidence to show that the appellantshad incurred any loss due to breach of contract by the respondentherein and therefore, retaining the Earnest Money Deposit andAdditional Security amount would be an unjust enrichment.8.In these circumstances to meet the ends of justice, thisCourt is of the view to direct the appellants/defendants, to returnthe Earnest Money Deposit of Rs.19,000/- along with the AdditionalSecurity Deposit of Rs.25,000/- to the respondent/plaintiff. Therespondent/plaintiff has not established that he was performing hispart of the contract and that there was a breach of contract only onthe part of the appellants/defendants. Therefore, therespondent/plaintiff is not entitled to any interest for theaforesaid amount. 9.As contended by the learned counsel for the appellants,the Trial Court has held without any supporting documents, oradmission by the appellants/defendants that Rs.22,000/- had beenspent for material collection and Rs.20,000/- was spent towards non-completion of the work by the respondent/plaintiff and awarded atotal sum of Rs.50,000/- to be paid by the appellants/defendants. Thefinding of the Court below is not based an any evidence, andtherefore as contended by the learned counsel for the appellants, thejudgment and decree of the Court below has to be set aside, since thesame is not supported by any evidence. 10.As discussed earlier in the judgment, it has beenadmitted by the appellants/defendants that an amount of Rs.19,000/-towards Earnest Money Deposit and Rs.25,000/- towards AdditionalSecurity Deposit, were received by the appellants from the respondentherein. There is no evidence on the side of the appellants/defendantsto show that there was any loss incurred by them due to the defaultcommitted by the respondent. Hence, retaining the money by theappellants would be construed only as an unjust enrichment, as statedearlier.11.In such circumstances, to meet the ends of justice, thisCourt finds it just and reasonable to direct theappellants/defendants, to return the Earnest Money Deposit and https://hcservices.ecourts.gov.in/hcservices/ Additional Security Deposit that had been received from therespondent/plaintiff, since the tender was subsequently allotted tosome other person.12.Considering the facts and circumstances and the argumentsadvanced by both the learned counsel, it is ordered that theappellants/defendants herein have to pay a sum of Rs.44,000/-received from the respondent/plaintiff, by way of Earnest MoneyDeposit and Additional Security Deposit. Accordingly, the appeal ispartly allowed and the impugned judgment and decree are set aside andthe appellants herein are directed to return the money paid by therespondent towards Earnest Money Deposit and Additional SecurityDeposit.13.It has been verified by the learned counsel appearing forthe respondent/plaintiff that on 23.04.1996, a sum of Rs.32,569/- wasdeposited by the appellants/defendants before the Trial Court and thesame was withdrawn by the respondent/plaintiff on 14.02.2002. Hence,the appellants/defendants are directed to pay the balance amount ofRs.11,431/- within a period of three months from the date of receiptof a copy of this order, failing which, the respondent would beentitled to get the amount with 9% interest for the balance amountfrom the date of this judgment. However, there is no order as tocosts.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.jrlTo1. The Registrar, City Civil Court, Madras.2. The VII-th Assistant Judge, City Civil Court, Madras.3. The Section Officer, VR Section, High Court, Madras.+ 1 CC to the Government Pleader SR NO 69414A.S.No.200 of 1996sks[co]sky/28.12.