The Maharahstra Housing And Area, ... vs M/S Shiva Enterprises, ...
2021 Latest Caselaw 10186 Bom

                                         (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                       SECOND APPEAL NO.263 OF 2021

 1)       The Maharashtra Housing and Area
          Development Authority (MHADA)
          Through its Secretary,
          Mantralaya Mumbai & Ors.        =                     APPELLANTS


          VERSUS

 M/s Shiva Enterprises,
 Through its Partner -
 Dhoopnarayan s/o Rajkara Singh                           =     RESPONDENT
                        -----
 Mrs.Renuka V.Ghule,Advocate for Appellants;
 Mr.JN Singh and Mr. AS Kulkarni, Advocates, for
 Respondent.
                      -----
                  CORAM : SMT.VIBHA KANKANWADI,J.

RESERVED ON : 15/07/2021 PRONOUNCED ON : 03/08/2021

PER COURT :-

1. Heard learned Counsel appearing for

respective parties.

2. At the outset, the ratio laid down in

Ashok Rangnath Magar Vs. Shrikant Govindrao

Sangvikar - (2015) 16 SCC 763, wherein the Hon'ble

Apex Court held as under, is considered.

"18. In the light of the provision contained in Section 100 Civil Procedure Code and the ratio decided by this Court, we come to the following conclusion:-

(i) ...........................................................................;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the respondent;

3. Though it is not necessary to hear the

respondent at this stage; yet, an opportunity was

given.

4. Present appellants are the original

defendants. Present Respondent is original

plaintiff, who filed Special Civil Suit No.43/2008

for recovery of amount of Rs.65,70,282/- towards

construction costs of residential houses under

MHADA Scheme. That suit was decreed by learned 3 rd

Joint Civil Judge, Senior Division, Dhule on

9.4.2012. The defendants were directed to pay the

said amount to the plaintiff together with future

interest @ 12% p.a. from the date of the order till

realisation of the decreetal amount. The said

judgment was challenged by the appellants-original

defendants before the District Court, Dhule by

filing Regular Civil Appeal No.213/2018. The

appeal was heard by learned District Judge, Dhule

and it came to be partly allowed. The decree was

modified and the defendants were directed to pay an

amount to the tune of Rs.37,51,784/- with interest

@ 12% p.a. from the date of filing of the suit till

the date of the decree and 6% p.a. from the date of

the decree till actual payment. Now. The MHADA and

other appellants are before this court.

5. It has been vehemently submitted on

behalf of the appellants that both the Courts below

have not properly considered the evidence and the

law points involved. The conduct on the part of the

plaintiff-respondent was not considered and every

blame was put on the defendants. It ought to have

been considered as to how the plaintiff was not

cooperating and the activities were not done as per

the Schedule. Exaggerated costs were levied

towards the labour charges and other items by the

plaintiff, though there was no ground work done by

the plaintiff as per the contract. In fact, the

defendants have paid all the RA bills from time to

time. Even the plaintiff had accepted amount of

Rs.6,93,185/-, vide RA Bill No.6 dated 27.6.2003

without any objection and thereafter action of

imposing penalty was revoked and extension was

granted without imposing the penalties up to

31.12.2003. Though the decree has been modified by

the learned Judge of the First Appellate court; yet

he has also not considered certain points. Certain

amount under different heads are levied as per the

whims without there being any ground or base.

Under such circumstance, when there was absolutely

no base much less legal, for the claim; yet the

decree has been granted which leads to substantial

question of law. Further, a fact has been missed

by the learned District Judge that the judgment and

decree passed by learned Civil Judge, Senior

Division, was challenged before the High Court

initially, as at that time, the jurisdiction was

with this Court.

6. In Civil Application No.5310/2014, the

then Bench of this Court had directed the

appellants to deposit an amount of Rs.35,16,570/-

and accordingly, that amount has been deposited in

two installments. That amount has been withdrawn by

the plaintiff. Thereafter, as the pecuniary

jurisdiction of District Courts was enhanced, the

First Appeal was transferred from this Court to the

District court and those payment has not been

considered by the learned District Judge while

modifying the decree. As substantial questions of

law are arising in the appeal and substantial

payment has been made, stay deserves to be granted

to the impugned decree till the Second Appeal is

decided.

7. Per contra, learned Advocate appearing

for the respondent supported the reasons given by

both the Courts below and submitted that no

substantial questions of law are arising in this

appeal. The plaintiff was a reputed partnership

firm, dealing in civil constructions. In view of

the tender, the plaintiff had taken the work of

construction of 200 tenements out of 350 on Survey

No.471, 477 at Chalisgaon Road, Dhule. Though the

estimated cost of the tender work was Rs.

77,67,500/-, but the plaintiff had accepted it at

the cost of Rs.63,69,427.67 ps. Thereafter, as the

defendants, who had committed breach of the terms

and conditions of the contract, the Work order was

itself issued belatedly. Further, due to rainy

season, there was no progress in the construction.

It was difficult to excavate black soil in rainy

season. Defendant No.5 had, in fact, issued the

order for 168 tenements only instead of

construction of 200 tenements. There was no

separate provision made for up-rooting of the

Babool trees from the spot and that was made by the

plaintiff at his cost. The plaintiff had submitted

running bills from time to time, however, they were

not cleared and, therefore, the plaintiff was

entitled to get an amount of Rs.65,70,282/-

together with interest. All the documentary

evidence and oral evidence has been considered

properly and, therefore, no substantial questions

of law is arising in this appeal.

8. At the outset, it can be said that there

is no concurrent finding by the Courts below. The

Trial Court had decreed the suit in its entirety;

whereas the first Appellate Court has modified it

and the amount that is awarded is almost 50% less.

The learned First Appellate Court has not granted

the amount under certain heads though it was held

that the defendants have committed breach of the

terms of the contract. This also requires

admission of the appeal. Further, it appears that

the fact, that certain amount was deposited by the

defendants in this Court in view of the order

passed by the Division Bench of this Court in CA

No.5310/2014 on 11.7.2014, was not communicated and

considered by the learned First Appellate Court.

In view of the said order passed by the Division

Bench of this Court, the defendants had deposited

an amount of Rs.35,16,576/- and the same has been

withdrawn by the plaintiff. That deduction ought

to have been considered and made by the learned

first Appellate court while passing the decree.

Therefore, on both these counts, definitely,

admission of the Second Appeal is required as it

involves substantial questions of law. Hence, the

Second Appeal is admitted on the following

substantial questions of law, -

                  i)             Whether        both      the      Courts          below
                  were         justified        in     holding            that        the

defendants have committed breach of the contract ?

ii) Whether the learned Judge of the First Appellate court erred in granting

arbitrary amount under different heads to the Respondent-plaintiff ?

iii) Whether the first Appellate Court ought to have been given due credit to the amount, which has been withdrawn by the present respondent-plaintiff when the amount was with this Court ? In other words, whether there is suppression of withdrawal of the amount by the present respondent - plaintiff before the first Appellate Court ?

9. Issue notice to the respondent. Learned

Advocate waives notice for the respondent.

10. Call R and P.

(SMT. VIBHA KANKANWADI) JUDGE

BDV