Gauhati High Court
RFA/18/2016 on 13 November, 2024
GAHC010011132016
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
RFA No. 18/2016
1. Union of India,
Represented by the Secretary to the Govt. of India,
Department of Railways, New Delhi.
2. The General Manager,
N.F. Railway, Maligaon,
Guwahati-781011, Dist.-Kamrup(M), Assam.
3. The Divisional Railway Manager,
N.F. Railway, Tinsukia, PO-Tinsukia,
Dist.-Tinsukia, Assam.
4. The Senior Divisional Engineer (Works),
N.F. Railway, Tinsukia, PO & Dist.-Tinsukia,
Assam.
5. The Executive Director, Civil Engineer (G),
(Railway Board), New Delhi.
6. The Chief Engineer,
N.F. Railway, Dibrugarh at Tinsukia,
PO-Tinsukia.
7. The Divisional Engineer,
N.F. Railway, Tinsukia,
Dist.-Tinsukia, Assam.
......Appellants.
-Versus-
Shri Inamul Rashid Hazarika,
S/o Late Abdul Rashid Hazarika,
B.C. Das Road, Near Railway Station,
PO & PS-Dibrugarh, Dist.-Dibrugarh, Assam.
......Respondent.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Appellants : Mr. B. Sarma. ......Advocate.
For the Respondent : Mr. U.C. Rabha,
Mr. A. Sahad. ......Advocates.
Dates of Hearing : 19.09.2024 & 26.09.2024
Date of Judgment : 13.11.2024
JUDGMENT AND ORDER
Heard Mr. B. Sarma, learned counsel for the appellants and also
heard Mr. U.C. Rabha, learned counsel for the sole respondent.
2. This regular first appeal, under Section 96, read with Section 151
of the Code of Civil Procedure, is directed against the judgment and
decree, dated 27.04.2015, passed by the learned Additional District
Judge, Dibrugarh, in Title Suit No.17/2003 [Title Suit No.22/2013(new)].
It is to be noted here that vide impugned judgment and decree, dated
27.04.2015, the learned Additional District Judge, Dibrugarh (hereinafter
referred to as the "Trial Court") has decreed the suit filed by the
respondent herein for recovery of a sum of Rs.51,34,336/- including the
interest and security deposit.
3. The back ground facts leading to filing of the present appeal is
briefly stated as under:-
"The appellants/defendants herein had invited tenders from
time to time from the office of the Divisional Engineer, Dibrugarh
for executing certain works in the Railway Departments. The
respondent/plaintiff herein had participated in the aforesaid tender
process and after scrutinizing the tenders, certain works were
allotted to him on different dates for execution. Thereafter, formal
contract agreements were signed on various dates viz. 24.02.1987,
10.11.1987, 14.12.1988, 27.06.1989, 14.09.1990, 12.08.1991,
13.03.1992, 24.07.1992 and 07.07.1993, by the appellants and the
respondent herein. Thereafter, complying with the terms of the
tender document, the respondent has deposited security money
and started the works at the specified sites, indicated by the
appellants/defendants. While executing the works, allotted to the
respondent/plaintiff, he had also received provisional payments
against ad-interim bills for meeting the running expenses.
Thereafter, on completion of the aforesaid tender works, the
respondent herein and the appellants jointly made inspection from
time to time and recorded the same in the measurement book
through its competent staffs. The respondent had given all the
necessary particulars of the works i.e. the name of work allotted,
the value of the works, the amount of payment received, the
balance receivable and also number of the measurement books in
which all the measurements were recorded in a separate sheet.
Thereafter, the respondent herein submitted nine sets of
documents each containing contract works agreement, details of
zonal works, statement of account regarding works done by him
and the respective bill amount and the provisional payment
received against each zonal work and marked those documents as
document Nos.1 to 9. Thereafter, the appellants herein after taking
measurements, issued completion certificates to the respondent in
respect of the works done by him and he was waiting to receive
the balance payments against each work done by him and he has
submitted two completion certificates issued by the Divisional
Engineer, N.F. Railway, Dibrugarh. The total amount he has to
receive from the appellants herein is Rs.51,34,336/- only.
Thereafter, he had made several requests to the appellants herein
to release the said amount, but the appellants have withheld the
same illegally and wrongfully. Thereafter, he along with one Sajjad
Mannan had filed one writ petition before this Court against the
appellants herein for settlement of the bills in respect of completion
of the works allotted to him. Thereafter, vide order dated
09.09.1999, this Court has directed the respondent/petitioner to
prefer his claim along with copies of the writ petition, rejoinder and
other documents including copy of the order in support of the claim
before the appellants herein, directing the appellants to allow
reasonable opportunity to the respondent/petitioner to place his
claim in person during the course of examination if necessary.
Thereafter, the respondent herein along with Sajjad Mannan
filed a representation mentioning particulars of work orders, tender
value of such work, value/bill, payment receipt, balance payable
and also particulars of measurement books of the works done and
thereafter, the respondent herein received one letter No.W/44/1@-
1 dated 08.12.1999, issued by the defendant No.5 to the Deputy
CVO (E), Maligaon, N.F. Railway, asking him to send all the cases
in question to dispose of the same in compliance of the order of
this Court. Thereafter, on 15.12.1999, the respondent has received
a letter from the appellant/defendant No.5, informing him that the
scrutiny of the respondent's demand was going on. Thereafter, the
respondent and Sajjad Mannan were directed to attend the
chamber of the appellant/defendant No.5 to discuss the issue on
12.01.2000 at 10 a.m. Accordingly, the respondent herein along
with Sajjad Mannan went to meet defendant No.5, but no
discussion could be held and he was informed that the payment
could not be made. Thereafter, the respondent herein had received
one show-cause notice as to why action should not be taken
against him within 20.02.2001, wherein it is stated that malpractice
and irregularities in respect of three work orders, namely, (i)
DBRT/2113 dated 10.11.1987, (ii) DBRT/2333 dated 27.06.1989
and (iii) DBRT/2023, dated 24.02.1987, and the respondent herein
filed his reply denying the allegations made therein and thereafter,
instead of affording any opportunity of being heard, vide ex-parte
order dated 10.09.2001, he and his sister concerns were banned
from all business dealings for five years. Thereafter, he had sent
one notice under Section 80 CPC through his lawyer claiming
refund of a sum of Rs.14,87,000/-, and subsequently amended
notice for a sum of Rs.18,25,196/- which was duly received by the
appellants herein, but they failed to respond to the same.
Therefore, he has instituted the suit for recovery of a sum of
Rs.51,34,336/- including the interest and security deposit, from
1987 till the date of filing the above.
The appellants herein received summons in the said suit and
filed written statement stating that the suit is liable to be dismissed
on the point of jurisdiction as the contract works were performed in
the district of Tinsukia and that the suit is barred by the law of
limitation and it is also bad in law for being filed with mala-fide
intention for wrongful gain on public money and that the suit is
barred under Section 5 of the Arbitration and Conciliation Act, 1996
as there was an arbitration clause. It is also stated that as per
General Conditions of Contract, 1979, Clause 63(1) clearly stated
that in the event of any dispute or difference between the parties
that could not be settled between the parties as to the construction
and operation of contract, the matter may be settled through
arbitration and that the performance of the respondent was found
unsatisfactory and for the same, notice was issued to him as per
Clause 62 of the General Conditions of Contract, 1979 and that he
was given the reasonable opportunity of being heard pursuant to
the order of this Court and the direction has been complied with
diligently and no notice under Section 80 CPC was received and
that in the initial notice received by it, the claim was made for
Rs.14,87,000/-, but in the subsequent notice, the claim was
enhanced to Rs.18,25,196/- contending that there was a bona-fide
mistake and that the claim amount is wrongly calculated as
Rs.51,34,336/-, which is unjust, unreasonable and highly inflated
and the suit is instituted after a long gap of almost 8 years and on
such count also, the same is liable to be dismissed and the rate of
interest i.e. 18% is exorbitant and far from permissible limit as laid
down in Section 34 of the CPC and the rate of interest is not
maintainable and therefore, it is contended to dismiss the same."
4. Upon the pleadings of the parties, the learned Trial Court has
framed following issues:-
(i) Whether there is cause of action for the suit?
(ii) Whether the suit is maintainable in law and facts?
(iii) Whether the plaintiff is entitled to get decree as prayed
for in the plaint?
(iv) To what relief/reliefs the parties are entitled to?
5. It is to be noted here that the appellants herein, though had filed
written statement, had failed to adduce any evidence. Thereafter,
considering the evidence of the respondent herein and the documents
exhibited by him, the learned trial court had decreed the suit for recovery
of Rs.51,34,336/- from the appellants herein along with interest @6% per
annum from the date of filing of the suit.
6. Being highly aggrieved, the appellants preferred the present appeal
for setting aside the judgment and decree on the following grounds:-
(i) The learned Trial Court ought to have considered that the suit is
not maintainable in law and facts as plain reading of the plaint
becomes crystal clear that the instant suit ought to have been
preferred at Tinsukia and not Dibrugarh since the entire contract
works state to be entered and allegedly performed in district
Tinsukia;
(ii) The plaintiff's claim is hit by the statute of limitation which is barred
as it is evident that the cause of action for suit arose on and from
20.12.1985, 28.12.1986, when the plaintiff and the defendants
executed contract agreement for time to time, on 23.10.1992,
10.02.1992 when the plaintiff received provisional payment of bills.
The completion of the contract and the certificate issued thereof on
02.08.1995 stood barred on 02.05.2003, the date of filing the suit;
(iii) The plaintiff has suppressed material facts and instituted the suit
with mala-fide intention for illegal gain with wrongful bargain and
that there was an arbitration clause in the agreement and that the
jurisdiction of the Civil Court is barred under Section 5 of the
Arbitration and Conciliation Act, 1996 and the same had not been
considered;
(iv) The learned Trial Court ought to have considered that as per the
existing General Condition of Contract, 1979 Edition (Regulation for
Tenders Contracts), Clause 63(1) clearly states that in the event of
any dispute or differences before the parties that could not be
settled between the parties, the matter may be settled through
arbitration. Hence, the suit is barred under Section 5 of the
Arbitration and Conciliation Act, 1996. The suit is also not
maintainable since it cannot be settled in Law courts departing
from the arbitration clause laid down in the contract (General
Conditions of Contract, 1979) in accordance with Section 7, sub-
section 5 of the Arbitration and Conciliation Act, 1996, and the
learned trial court had not considered the same;
(v) The learned Trial Court had not considered the fact that the
performance of the plaintiff in some of the allotted contract works
was found unsatisfactory, and as such some contract works were
terminated by the Railway Administration and payment of the
completed works were stopped and though nine number of
Agreement of works executed between the plaintiff and the
Railway, the plaintiff failed to complete 2 nos. of contract works i.e.
contract Agreement Nos.DBRT/2582 dated 13.03.1992 and
DBRT/2614 dated 24.07.1992, which were subsequently terminated
at the risks and costs of the plaintiff and the same was not
considered by the plaintiff;
(vi) The learned Trial Court ought to have considered that no
completion certificates were issued by the competent authority as
mentioned in the plaint, where Senior Divisional Engineer of
Railway is the competent authority to issue such certificate. The
fact remains that the plaintiff even after having information and
knowledge that he is not entitled to get any payment from the
Railway was insisting and is filing the suit for payment of
Rs.51,34,336/- which is illegal, arbitrary and mala-fide and the
same was not considered by the learned Trial Court;
(vii) The learned Trial Court ought to have considered that the Railway
Board has scrutinized and examined the tender cases in depth with
related facts and decided to ban business dealing with the plaintiff.
And after detail scrutiny and as per guidelines of the Railway
Board, the Railway Board decided to ban all business dealings with
the plaintiff and the said fact was not considered in the judgment;
(viii) The learned court below ought to have appreciated that the
discussions were held on 13.01.2000, instead of 12.01.2000, and
the minutes of the joint discussions were drawn up but the plaintiff
denied to sign the same. In the said meeting, the next date for the
discussion was fixed as 24.01.2000. On 24.01.2000 one
representative of plaintiff attended the office of the Sr. DN,
Tinsukia without any authority to represent on behalf of the
plaintiff, due to which discussion could not be held. Thereafter, the
plaintiff never approached the Railway Authority and the said fact
was not considered in the impugned judgment;
(ix) The learned Trial Court ought to have appreciated that the Railway
was willing to settle the issue by holding discussion with the
plaintiff in respect of his claim and railway's counter claim, but the
plaintiff has not co-operated with Railway and preferred not to sign
the minutes drawn by Railway after the joint discussion with the
plaintiff. The plaintiff is pursuing old and stale claim which is not be
construed in law to give a fresh lease of life to the stale claim
which already stood barred by the efflux of time;
(x) The learned trial court ought to have applied its mind that the
plaintiff's claim as laid down at different stages with different
amounts simply reveals his mala-fide intention. In the notice u/s 80
CPC dated 13.2.2002 drafted by Sri Satybrata Sarma, Advocate the
plaintiff laid his total claim at Rs.14,67,000/- with interest up to
date. In subsequent amended, notice drafted by Sri Malay Chandra
Bagchi, Advocate, the claim amount unreasonably enhanced to
Rs.18,25,196/- contending that in the earlier notice "bona-fide
mistake" was made in laying the claim of the plaintiff at
Rs.14,87,000/-. But, in the corrigendum, the plaintiff's Advocate,
Sri Malay Chandra Bagchi is absolutely silent as to how the claim
amount was calculated earlier wrongly and also failed to give any
idea as to whether the mistake resulted from calculation of the
amount or a simple type mistake. Besides, it is also surprising and
difficult to accept the logical sequence as to why the claim amount
in the plaint was laid down at a Rs.51,34,336/- much higher laid
rate i.e. which is apparently unjust, unconditional, unreasonable
and highly inflated and such not at all entertainable in view of the
situation and the same was not considered in the impugned
judgment;
(xi) The learned trial court ought to have considered that the suit is not
maintainable when the present suit was instituted after a long gap
of almost eight years, where also no claim stands recoverable from
the Railway by the plaintiff on 13.02.2002 and on the date of filing
of the suit. The plaintiff has already taken the stand for a sum of
Rs.14,87,000/- and the Railway reply dated 16.05.2000 was duly
received by the plaintiff and in spite of that the plaintiff again
submitted bill putting his own signature on 13.02.2002 for an
amount of Rs.14,87,000/-, which is illegal and arbitrary;
7. Mr. Sarma, learned counsel for the appellants, besides reiterating
the grounds mentioned herein above, also submitted synopsis of written
argument, wherein he had shown the amounts claimed by the
respondent herein as under:-
Sl. Exhibit No. Actual Interest on Security Security
No. amount due actual amount deposit deposit with
at 18% due interest
1. Exhibit-1, page-55 Rs.51,391/- Rs.1,05,608/- Rs.16,749/- Rs.29,896/-
2. Exhibit-2, page-25 Rs.90,356/- Rs.2,06,011/- Rs.2,592/- Rs.2,592/-
3. Exhibit-3, page-38 Rs.37,533/- Rs.71,538/- Rs.18,867/- Rs.33,960/-
4. Exhibit-4, page-54 Rs.74,636/- Rs.1,33,225/- Rs.3,262/- Rs.5,480/-
5. Exhibit-5, page-66 Rs.1,12,000/- 1,79,760/- Rs.19,948/- Rs.30,221/-
6. Exhibit-6, page-94 Rs.6,17,768/- Rs.8,79,318/- Rs.3,408/- Rs.5,163/-
7. Exhibit-7, page-111 Rs.90,000/- Rs.97,200/- NIL NIL
8. Exhibit-8, page-134 Rs.3,50,000/- Rs.4,20,000/- NIL NIL
9. Exhibit-9, page-153 Rs.2,00,000/- Rs.2,49,000/- NIL NIL
Total Rs.16,23,684/- Rs.23,41,660/- Rs.64,826/- Rs.1,07,249/-
7.1. Drawing the attention of this court to the chart prepared by him Mr.
Sarma submits that though claim is made for a sum of Rs.51,34,336/-,
and the learned trial court had also passed a decree for the same, yet,
from the document so exhibited by the respondent/plaintiff, the amount
is found to be of Rs.41,37,419/- with 18% interest per annum and if the
interest is counted @ 6% per annum, which is awarded by the learned
trial court, the amount would be much lesser. The respondent/plaintiff
had failed to establish his entitlement of Rs. Rs.51,34,336/-. And on such
count, the judgment so passed by the learned trial court is perverse and
the decree, so passed is not executable. Mr. Sarma, also submits that
before calculating the interest, the principal amount has to be calculated
first and only thereafter, the interest has to be added. Mr. Sarma also
pointed out that there was an arbitration clause in the General Conditions
of Contract, but the same has not been considered. The plea of limitation
is also taken but not considered and the issue of jurisdiction has also not
been considered by the learned Trial Court and the impugned judgment
and decree is not at all sustainable. Mr. Sarma, also submits that the
claim so made by the respondent herein was repudiated vide letter
No.W/441/W-1 dated 16.05.2000, but, said letter was not exhibited by
the appellants, though it was one of his documents and he had not
challenged the said letter.
7.2. Mr. Sarma further submits that though the appellants herein had
failed to enter into the witness box to establish the statement and
averment made in the written statement, yet, the respondent has to
establish its case by its own evidence and it cannot rely upon the
weakness of the appellants' case. In support of his submission, Mr. Sarma
has referred to a decision of Hon'ble Supreme Court in the case of Anil
Rishi v. Gurbaksh Singh, reported in (2006) 5 SCC 558, where it
has been held as under:-
"8. The initial burden of proof would be on the
plaintiff in view of Section 101 of the Evidence Act,
which reads as under:
"101. Burden of proof.--Whoever desires any
court to give judgment as to any legal right or
liability dependent on the existence of facts
which he asserts, must prove that those facts
exist.
When a person is bound to prove the
existence of any fact, it is said that the burden
of proof lies on that person."
9. In terms of the said provision, the burden of
proving the fact rests on the party who substantially
asserts the affirmative issues and not the party who
denies it. The said rule may not be universal in its
application and there may be an exception thereto. The
learned trial court and the High Court proceeded on
the basis that the defendant was in a dominating
position and there had been a fiduciary relationship
between the parties. The appellant in his written
statement denied and disputed the said averments made
in the plaint.
10. Pleading is not evidence, far less proof. Issues
are raised on the basis of the pleadings. The
defendant-appellant having not admitted or
acknowledged the fiduciary relationship between the
parties, indisputably, the relationship between the
parties itself would be an issue. The suit will fail
if both the parties do not adduce any evidence, in
view of Section 102 of the Evidence Act. Thus,
ordinarily, the burden of proof would be on the party
who asserts the affirmative of the issue and it rests,
after evidence is gone into, upon the party against
whom, at the time the question arises, judgment would
be given, if no further evidence were to be adduced by
either side."
7.3. Under the aforementioned facts and circumstances, Mr. Sarma has
contended to allow the present appeal by setting aside the impugned
judgment and decree.
8. Per contra, Mr. Rabha, learned counsel for the sole respondent
submits that the respondent herein had submitted a statement of account
for claiming the amount and also he had examined two witnesses and
exhibited 10 work orders and there were no irregularities in execution of
the said works. Mr. Rabha further submits that though the issue of
jurisdiction is raised, yet at the relevant point of time, the Office of the
Railway Divisional Engineer was situated at Dibrugarh from where the
work orders were issued, though the works were executed in the district
of Tinsukia and as such, the Court at Dibrugarh has jurisdiction to try the
suit. Mr. Rabha also submits that though the arbitration clause was there
in the General Conditions of Contract, yet, the appellants herein had
made no application for referring the matter for arbitration. Further
submission of Mr. Rabha is that the relevant work orders were exhibited
as Exhibits-1 to 11 and that the evidence adduced by PW-1 remained
unrebutted and he was not effectively cross-examined also and whatever
he stated could not be demolished in his cross-examination and in a civil
case the standard of proof is preponderance of probability only, not
beyond reasonable doubt. It is also pointed out that the appellants herein
failed to enter into the witness box and as such, the contention made in
the written statement cannot be taken into account and in view of
Section 114(g) of the Indian Evidence Act, presumption is available
against the appellants and therefore, Mr. Rabha contended to dismiss the
appeal with cost. In support of his submission, Mr. Rabha has referred to
a decision of Hon'ble Supreme Court in the case of Vidhyadhar v.
Mankikrao & Anr., reported in (1999) 3 SCC 573, wherein it has been
held in paragraph No.17 as under:-
"17. Where a party to the suit does not appear in the
witness-box and states his own case on oath and does
not offer himself to be cross-examined by the other
side, a presumption would arise that the case set up
by him is not correct as has been held in a series of
decisions passed by various High Courts and the Privy
Council beginning from the decision in Sardar
Gurbakhsh Singh v. Gurdial Singh reported in AIR 1927
PC 230: 32 CWN 119. This was followed by the Lahore
High Court in Kirpa Singh v. Ajaipal Singh [AIR 1930
Lah 1: ILR 11 Lah 142] and the Bombay High Court in
Martand Pandharinath Chaudhari v. Radhabai Krishnarao
Deshmukh [AIR 1931 Bom 97: 32 Bom LR 924]. The Madhya
Pradesh High Court in Gulla Kharagjit Carpenter v.
Narsingh Nandkishore Rawat [AIR 1970 MP 225: 1970 MPLJ
586] also followed the Privy Council decision in
Sardar Gurbakhsh Singh case [AIR 1927 PC 230: 32 CWN
119]. The Allahabad High Court in Arjun Singh v.
Virendra Nath [AIR 1971 All 29] held that if a party
abstains from entering the witness-box, it would give
rise to an adverse inference against him. Similarly, a
Division Bench of the Punjab and Haryana High Court in
Bhagwan Dass v. Bhishan Chand [AIR 1974 P&H 7] drew a
presumption under Section 114 of the Evidence Act,
1872 against a party who did not enter the witness-
box."
9. Having heard the submission of learned Advocates of both the
parties, I have carefully gone through the memo of appeal and the
grounds mentioned therein and also perused the record of the learned
Trial Court and the impugned judgment and decree dated 27.04.2015,
and the decision referred by Mr. Sarma, learned counsel for the
appellants.
10. It appears that the respondent herein had claimed for recovery of a
sum of Rs.51,34,336/- including the security deposit, in the suit instituted
by him. It also appears that before institution of the suit, he had issued
notice, dated 16.05.2000, under Section 80 CPC to the appellants herein.
In the first notice dated 13.02.2002, he had first mentioned the amount
he claimed is Rs.14,67,000/-, with interest up to date. But, in the
subsequent amended notice he had mentioned the amount as
Rs.18,25,196/-, on the ground that there was a bona-fide mistake in
the first notice. If the amount is for Rs.18,25,196/- as per the subsequent
notice under Section 80 CPC, no averments has been made in the
pleading and no calculation has been shown as to how the amount
escalates to Rs.51,34,336/-, which the learned Trial Court had decreed.
The learned Trial Court also in the impugned judgment and decree, dated
27.04.2015, had not discussed anything in this regard and no reason was
also assigned as to how the amount mentioned in the notice i.e.
Rs.18,25,196/- becomes to Rs.51,34,336/-.
11. Thus there appears to be substance in the submission of Mr.
Sarma, learned counsel for the appellants. According to him and as
shown in the chart of his written synopsis of argument has rightly pointed
out that even the interest is calculated @18% per annum, then also the
amount becomes Rs.41,37,419/-, only and if the rate of interest is
counted @ 6% per annum, then the amount would be much lower than
the sum claimed by the respondent and decreed by the learned trial
court.
12. It is well settled in the case of Anil Rishi (supra) that the
burden of proof of a fact rest upon the party who substantially asserts
the affirmative issue and not the party who denies it and that the plaintiff
has to succeed on the strength of his own case and not on the weakness
found in the case of the defendants.
13. In the case in hand, the respondent/plaintiff had failed to show the
calculation and breakup of the amount of Rs.51,34,336/-. Thus, the
amount claimed and decreed is vague, indefinite and inconclusive. The
finding, so arrived at by the learned trial court in issue No. (iii) and (iv) of
the impugned judgment, is erroneous and bereft of logic and on such
count the same are arbitrary and also illegal.
14. This court, otherwise would have ventured to dispose of the appeal,
had all the materials been placed on record. But, in view of inadequacy of
materials, and this court would not like to make such venture, and in the
interest of justice, this court deemed it appropriate to remand the matter
to the learned Trial Court to hear the matter a fresh and to pronounce
judgment thereafter. In such exercise, if necessary the learned Trail
Court shall afford opportunity of being heard to both the parties and to
adduce evidence to the respondent herein. It is also provided that
adequate discussion, in respect of issue No. (iii) and (iv) shall be made
and in the process of determining the amount, at first the principal
amount from the different bills, i.e. from Exhibits-1 to 9 shall be
calculated and thereafter, the interest accrued thereon shall be added.
15. In the result, the impugned judgment and decree so passed by the
learned Trial Court stands set aside and quashed. In view of provision of
Rule 23-A Order 41 CPC, the matter is remanded to the learned Trial
Court for deciding the matter a fresh in terms of the observations made
herein above. Send down the record of the learned Trial Court with a
copy of this judgment and order. Since it is an old pending matter, the
learned Trial Court is directed to make an endeavour to conclude the trial
as soon as practicable.
16. The parties have to bear their own cost.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
