Shri Virender Kumar vs The Indian Railway Constructions ...
2010 Latest Caselaw 5867 Del

 *           IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                     RFA No.377/1999

 %                                              23rd December, 2010

SHRI VIRENDER KUMAR                                        ...... Appellant


                                   Through:     Mr. K.K.Rohatgi, Adv.

                             VERSUS

THE INDIAN RAILWAY CONSTRUCTIONS CO. LTD.                  .... Respondent

                                   Through:     Mr. A.K.Singla, Sr. Adv. with
                                                Mr. J.K.Sharma, Adv.
 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. The appellant/plaintiff by the present appeal under Section 96 of the

Code of Civil Procedure, 1908 (CPC), impugns the judgment and decree

dated 12.1.1999 of the trial court whereby his suit for recovery of

Rs.2,28,000.30p has been dismissed. Out of this amount of Rs.2,28,000.30,

the principal amount due was Rs.1,47,695/-. This principal amount of

Rs.1,47,695/- comprises of three amounts i.e., 80,640/-, Rs.55,195/- and

Rs.11,860/-. So far as Rs.11,860/- is concerned, no challenge has been

raised to this aspect in the appeal and the claim has been held to be time

barred by the court below. The only issue before this court is for the claims

of Rs.80,640/- and Rs.55,195/-.

2. The main defence of the respondent/defendant before the trial court

was that after completion of the work, an agreed amount of deduction of

Rs.80,640/- was agreed and which is duly recorded in the document dated

5.2.1991 exhibited as Ex.DW1/1. This document is signed by the

appellant/plaintiff and the same shows agreement of deduction of

Rs.80,645.60. After execution of this document to deduct Rs.80,645.60, the

appellant thereafter received a sum of Rs.1,00,000/- towards his bills for the

work done.

3. The basic issue which was decided by the court below was issue no.3

as to whether the document Ex. DW1/1 dated 5.2.1991 was signed as a

result of coercion and compulsion. This issue has been dealt with by the trial

court in para 10 which reads as under:-

"10. The plaintiff has stated that document Ext.DW-1/1 was got written from the plaintiff under compulsion and coercion. Plaintiff was in need of money, so he could not refuse to sign the said document. For the sake of arguments if that is so, the plaintiff has not agitated or raised any grievance at any time against this document after 5.2.91. Plaintiff was pointed out deficiencies in the work under letter dated 6.4.92 of the defendants but nowhere he has shown any document under which it could be stated that deficiency in the work has been removed. There is no reply to this letter dated 6.4.92 received by the plaintiff from the defendants. The plaintiff represented his case to the Ministry of Information and Broadcasting, wherein the reply from

the department states that M/s Varinder Construction did not rectify deficiencies. This letter is dated 18.6.92 Ext.PW1/12. He represented to the Managing Director of the defendants on 22.7.92 under Ex.PW-1/13 stating that there was no deficiency in the work, but no grievance raised with regard to the document executed on 5.2.91. The letter dated 31.8.92 Ex.PW-1/14 is also material on the point which is replied from the Addl. Private Secretary to the Minister of Information and Broadcasting wherein it is stated that position was explained to the concerned Minister. For the first time the grievance was raised with regard to deduction of Rs.80,645/- in the letter dated 25.3.93 addressed to the defendants. In this letter it is admitted by plaintiff himself that defects in the work were got rectified by the defendant without any intimation to the plaintiff. So the plaintiff had not raised any grievance against the document dated 5.2.91 for complete 2 years. The conduct and acquiescence shows that he gave consent to this coercion and compulsion allegedly put upon the plaintiff on 5.2.91. He represented his case to the department which was investigated and reply was also received by the plaintiff. There is no evidence that the plaintiff removed the defects and deficiency in the work. In what manner coercion and compulsion was exercised upon the plaintiff no details given in the plaint until and unless the particulars of coercion and compulsion are detailed in the plaint, no evidence can be led upon these two facts. So the question of coercion and compulsion as per facts of this case are no ground to say that the plaintiff is entitled to the recovery of the suit amount. From 5.2.91 till the date of suit plaintiff has not made any grievances for recovery of Rs.55,195/- also from the defendants due to extra expenditures incurred by him by changing from Bitumen to brackets. In the evidence also it is stated by the plaintiff himself that amount of Rs.1,00,000/- was paid to him by the department on 8.3.91. To the question put in cross-examination whether any completion certificate of the job work was obtained by the plaintiff, there was no direct answer. So till the completion certificate is obtained by plaintiff from the defendants it cannot be said that the work was completed by the plaintiff and defects were removed also. So the issue is decided in favour of the defendants

and against the plaintiff."

4. I fully agree and endorse the aforesaid finding of the court below.

Sitting as an Appellate Court, I am not entitled to interfere with the judgment

of the trial court merely because another view is possible. This court can

only interfere if the findings and conclusions of the trial court are perverse or

illegal. Once it is found that Ex.DW1/1 dated 5.2.1991 was duly executed by

the appellant himself, and by which all the issues with respect to the

deductions were settled and thereafter an amount of Rs.1,00,000/- was paid

to the appellant, in my opinion, no further claim of the appellant would lie

against the respondent inasmuch as this document dated 5.2.1991 was

never challenged by the appellant at any time on the ground of the same

having been taken through coercion and compulsion.

5. In view of the above, I do not find any error in the impugned judgment

and decree. The appeal is therefore dismissed leaving the parties to bear

their own costs.

Trial court record be sent back.

CM No. 978/1999 (U/O 41 Rule 27 CPC) in RFA No. 377/1999

Dismissed as not pressed.

DECEMBER 23, 2010                                VALMIKI J. MEHTA,J
ib