Smt. Kiran Devi … v. 1. State of Jharkhand, through the Collector, Deoghar 2. Secretary to the Govt. Rural
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 117 of 2017 Smt. Kiran Devi ……Appellant Versus 1. State of Jharkhand, through the Collector, Deoghar 2. Secretary to the Govt. Rural Development, P.W.D. Bihar, Patna 3. Executive Engineer, Ganga Pump Canal, Division No. 1, Monghyr. ……………. Respondents --------- CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --------- For the Appellants : Mr. Onkar Nath Tiwari, Advocate For the Respondents : 08/Dated: 28/06/2024 Heard Mr. Onkar Nath Tiwari, learned counsel for the appellant. 2. This second appeal has been filed being aggrieved and dissatisfied with judgment dated 19.12.2016 and decree signed on 07.01.2017 passed by the learned District Judge-II, Deoghar in Money Appeal No. 03/2015 reversing the finding of the learned Sub-Judge-III in Money Suit No. 35 of 1988 which has been passed by judgement and decree dated 30.08.2005 and 08.09.2005 respectively. 3.
Legal Reasoning
The case of the plaintiff as stated in the plaint is that the plaintiff who is proprietor of M/S. S.K. Industries Estate Jasidih in the District of Deoghar, which is engaged in manufacturing of Hume pipe and tools in supply of the same in the various unit including the Govt. It is further said that by agreement duly executed between the State of Jharkhand through the Executive engineer "Ganga Pump Nahar Division No, II, Munger" and plaintiff to her authorized agent under which the State of Bihar agreed to purchase of supply by the plaintiff R.C.C. Hume Pipes of different diameter. It is further said that in pursuance of the said agreement being agreement no. 54 F2 of the year 1986-87 work order was issued is the name of plaintiff's firm directing to supply Hume Pipe and as such result of that agreement plaintiff supplied (1) 300 m.m. Dia NP 2-160 Nos-400 Mtrs. (ii) 1200 m.m. Dia NP 3-54 Nos-135 Mirs (ii) 600 m.m. Dia NP 2-80 Nos-200 Mirs. (iv) 900 m.m. Dia NP3-60 Nos-150 Mtrs. The aforesaid number of Hume Pipe was supplied by the plaintiff at work site through Truck No. B.H.J. 4142 and after supply proper receipt was granted on 29.11.86 and 15.12.86 by the Chowkidar and Sub-Divisional Officer Ganga Pump 2 Kanal Division, Jamalpur, Munger. It is said that receipts were granted after verification of good. So supplied by the plaintiff and delivered to the defendants. The value of supplied commodities come to Rs. 2,83,126.20 paise and out of that total amount payment of Rs. 79312/- was paid to the plaintiff on 10.03.86 which was received under protest. Further it is said that with malafide intention the defendant did not entered the total description of the goods supplied to them in their measurement book. Which was unilateral and their subordinates have prepared bills on fake M.B. I stated that at the time of supply of materials there was no occasion left before the plaintiff to participate in preparation of M.Bs. and the M.Bs. were unilaterally prepared in the office of defendant and accordingly bills has been prepared according to their desire. Further it is said that after supply of materials by the defendants the payment of those supply was not duly paid to the plaintiff and there was inordinate delay in payment due to negligence of the subordinate staff in State Government Offices. So plaintiffs stopped the further supply of Hume pipe and further it is said that defendants were deliberately tented with malafide intention to give supply order to some other person of their choice, on part of payment by the defendants the rest amount remained dues with them that comes to Rs. 203814.20 paise which is payable by the defendants to the plaintiff. On several occasions plaintiff requested for the rest payment but that has been avoided then on behalf of the plaintiff a notice dated 18.04.87 has been sent through his advocate but the Executive Engineer denied the claim on perusal of false allegations. Ultimately plaintiff served a notice u/s. 80 of the C.P.C. dt. 11.09.87 through his Advocate. But no heed has been paid by the defendant. It is said that as per the agreement between the parties, it was agreed that the suit can be lie either at Munger or Deoghar Civil Court. The cause of action for institution of this suit arises on various dates and lastly on 12.11.87 when the defendant in spite of notice u/s. 80 of C.P.C. did not make any payment to the plaintiff against his outstanding dues i.e. Rs. 203814.20 paise within jurisdiction of this Court, hence this suit. This plaintiff has sought the relief for a 3 decree of Rs. 203814.20 paise and interest of 18% chargeable pendentilite till the date of realization and the cost of the suit as well. 4. On the other hand the case of the defendant party is that an agreement no. 54F/2/86-87 was execute between the plaintiff and defendant for supply of RCC pipe as noted in the plaint. It is also fact that after the execution of agreement work order was issued to the plaintiff company for supply of the goods but the plaintiff firm supplied only the quantities as mentioned below; (i) 300 m.m. Dia 69 Nos- 175.05 Mtr. (ii) 600 m.m. Dia 54 Nos 135 Metrs. (iii) 900 m.m. Dia-30 Nos-75 Mtrs. Which is mentioned in the measurement book. Further it is said that as per contention in the plaint quantity of R.C.C. Hume pipe was not supplied by the plaintiff and the Sub-Divisional Officer reported that neither he has received the materials nor granted any receipt for the quantities stated by the firm. He also denied the authorization of any person to received the material on behalf of the department and it is said that Chowkidar who is an employee on master-roll has not been authorized to receive any material. Further it is said that what ever material was supplied by the plaintiff's firm that has been entered into the measurement book by the Junior Engineer and S.D.O. and an amount of Rs. 79312/- has been paid against the supplied materials and no amount of the plaintiff is due against the defendant. Hence no question of billing and payment of further more amount arises. It is also stated that because the plaintiff firm stopped the supply of materials so vide letter no. 3223 dt. 24.12.86 has been published in the Newspaper of Hindu Times dt. 31.12.86 and some other company has been directed for supply of the rest materials. It is said that because the plaintiff's company has not supplied the total materials as required by the defendants so his claim of dues of Rs. 203814,20 is baseless and false. The notice U/s 80 of C.P.C. sent by the plaintiff has been duly replied by T.O. No. 978 dt. 15.06.87 by special messenger. So far as territorial jurisdiction of the suit is concerned the defendant party has challenged the jurisdiction at Civil Court Deoghar and to the effect they have filed their separate application no. 33/89 to the Court below and further it is said that no 4 cause of action arose to the plaintiff company either before this Court or before Civil Court Munger as there is no supply of the quantity materials to the department and whatever material was supplied by the plaintiff company that has been already paid to them and it is said by the defendant that suit of the plaintiff is not maintainable and this is fit to be dismiss. 5.
Legal Reasoning
Learned counsel for the appellant submits that a petition was filed by the defendants/respondents before the learned court with regard to territorial jurisdiction which was disposed of by the learned court on 07.09.1990 and that order was not challenged and in view of that order on the point of jurisdiction of the learned appellate court is perverse. He submits that on that point this appeal may be admitted. He further submits that agreement was executed between the parties which was exhibited before the learned court and when the said document was exhibited on the ground of not discussing the interpolation in the agreement is further law point and in view of that the second appeal may be admitted. 6. The Court has gone through the judgements of the learned trial court as well as First Appellate Court. 7. The plaintiff/appellant has instituted the Money Suit No. 35 of 1988 for decree of Rs. 203814.20 paise against the respondents/defendants and further prayer was made for realization of the above amount with pendentilite @ 18 per cent to be paid to the plaintiff. Cost of the suit was also claimed. 8. On the basis of above pleadings the learned trial court framed six issues to decide the suit and the issues were decided by judgement dated 30.08.2005 and the suit was decreed in favour of the appellant/plaintiff. Aggrieved with the said judgment the defendants moved before the First Appellate Court in Money Appeal No. 03 of 2015 and the learned appellate court has reversed the findings of the learned trial court. 9. The learned appellate court has further formulated points to decide the appeal and by deciding the point with regard to supply of quantity of hume pipes learned appellate court has considered the challan which was marked as Exhibit-3. P.W. 4 Bhola Das the Truck driver who said that since 25.10.86 to 29.11.86 by his 5 truck he carried the Hume pipes and unloaded it to Lakadkola P.S. Jamalpur, District Munger. He stated that this Hume pipes were delivered to Ganga Pump Kanal Division Jamalpur after delivery of Hume Pipes he used to get receiving from Naresh Singh, the Guard. Further in para 3 of this witness it has come, whenever he delivered the Hume pipes at Lakakola the Munshi and Khalasi both had gone with him. The challan were in possession of Munshi. Naresh Singh Chaukidar was present there. He was not known to him since prior and none of the officer meet him there. The learned appellate court has further considered that evidence of P.W. 5 Shikhir Kumar Verma who was Munshi of the plaintiff company who has stated that in the year 1986 since 25.10.86.to 29.11.86 he was on that very truck and by that truck from S.K. Industries Jasidih he carried the Hume pipes to Ganga Pump Kanal Division Jamalpur Lakadkola. He has further stated that after delivery, materials were counted and receiving of the pipes was made by S.D.O. and the Chaukidar and that challan was marked as Ext.3. The learned appellate court has further considered the evidence of P.W. 6 Shashi Kumar Singh the husband of the proprietor of S.K. Industries, the appellant herein and he has stated that on behalf of Kiran Devi power of attorney has been executed to him and he has proved the power of attorney as Ext.4. He has further stated about the notice for agreement between the plaintiff and defendant. On the point of delivery of materials nothing was stated in deposition of this witness who happened the husband of the present appellant. P.W. 7 - Govind Mandal who was an advocate who has issued the legal notice. On the point of delivery of materials nothing has been stated by this witness and the learned appellate court has found that evidences of PW 3, 4 and 5 are contradictory to each other. How the contradictory statements are there that has been discussed by the learned appellate court. The learned appellate court has considered that P.W.3, P.W.4 and P.W. 5 in para have stated that hume pipes was delivered to Ganga Pump Kanal Division Jamalpur since 25.10.86 to 29.11.86 where is the receiving signatures which was made on 25.10.86 and onward before 29.11.86 thus the learned appellate court found that the testimony of these witnesses about delivery chalan Le. Ext- 3 is doubtful and has decided that issue in favour of the defendants/respondents and against the appellant. Issue No. V was 6 with regard to jurisdiction of the suit which was decided by the learned appellate court and learned appellate court has come to the conclusion that the territorial jurisdiction of Munger Court whereas the word ‘Deoghar’ has been inserted by way of manipulation and thus the Deoghar was having no jurisdiction. 10. In view of above the Court finds that so far supply of hume pipes itself are concerned the learned appellate court came to the conclusion that there were contradictory statement of the P.Ws and that is why the learned appellate court has not accepted the version of the learned trial court. 11. So far jurisdiction is concerned as argued by the learned counsel for the appellant that the initially the said issue was disposed of, the Court finds that by order dated 07.09.1990 in absence of any witness when such a dispute was there the learned court disposed of the said suit. If mixed question of fact and law are concerned with regard to the jurisdiction parties are required to adduce with regard to that point. As such the learned appellate court has further discussed the said issue and came to the conclusion that there is manipulation in the agreement with regard to taking of jurisdiction. Admittedly, the supply was made in the district of Munger town. The tender notice was issued by the said district. The entire work was executed by the appellant if any in the district of Munger. 12. The law with regard to cause of action and jurisdiction of the Court has been well settled by the Hon’ble Supreme Court in the case of “ A.B.C. Laminart Pvt. Ltd. Vs. A.P. Agencies, Salem”(1989) 2 SCC 163 wherein para 15 it has been held as under:- “15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and Its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have (been) performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be 7 rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contact is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors." 13. In view of above judgment of the Hon’ble Supreme Court a suit of contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. 14. There are the connecting factors of deciding the jurisdiction. Admittedly, in absence of any evidence adduced by either of the parties the said
Decision
issue was disposed of by the learned court and this is mixed questions of law and facts are involved. This Court further finds that the word ‘Deoghar’ is written in handwriting whereas the entire document is typed one. Further, the initial of husband of appellant is there. The defendant side signature was not there. In view of that the learned appellate court has come to the conclusion that manipulation is there with regard to jurisdiction. 15. The Hon’ble Supreme Court has deprecated the action of the High Court in entertaining petition merely because petitioner resides within its territorial jurisdiction, even if no cause of action arose within its jurisdiction. Reference may be made to the case of “Oil and Natural Gas Commission Vs. Utpal Kumar Basu” (1994) 4 SCC 711. 12. In view of above facts, the court finds that there is no illegality in the finding of learned First Appellate Corut and no substantial question of law is involved in this second appeal and sitting under section 100 of the C.P.C., the High Court is not required to admit this second appeal in absence of any substantial question of law and accordingly, this second appeal is dismissed. Pending, I.A., if any, stands disposed of. ( Sanjay Kumar Dwivedi, J.) Satyarthi/A.F.R.