Gujarat High Court
State Of Gujarat vs Bharat Vijay Construction Co on 4 January, 2021
Bench: Gita Gopi
C/FA/848/2007 JUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/FIRSTAPPEALNO. 848 of 2007
With
CIVILAPPLICATION(FORORDERS) NO. 1 of 2010
In
R/FIRSTAPPEALNO. 848 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
==============================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==============================================================================
STATEOF GUJARAT& 1 other(s)
Versus
BHARATVIJAYCONSTRUCTIONCO.
==============================================================================
Appearance:
MRUTKARSHSHARMA,ASST.GOVERNMENTPLEADER(1)for the Appellant(s)No. 1,2
MRNIRAVR MISHRA(6140)for the Defendant(s)No. 1
==============================================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/01/2021
ORAL JUDGMENT
C/FA/848/2007 JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. This appeal has been preferred against the judgment and
decree dated 28.03.2005 passed by the Court of learned Civil
Judge (S.D.), Gandhinagar in Special Civil Suit No.55 of 1995
[New] (Special Civil Suit No.162 of 1988 [Old] ) whereby, the said
suit preferred by the respondent herein, original plaintiff, was
partly allowed and the appellants herein, State of Gujarat and
The Executive Engineer, original defendants, have been directed
to pay Rs.1,03,661/- (Rupees One lac three thousand six
hundred sixty one only) together with interest at the rate of 18
per cent per annum from the date of filing of suit till its
realization to the respondent-plaintiff.
2. The facts in brief are that on 11.06.1979 the appellant-
State had invited tenders for the construction of earthen dam,
masonry water weir, etc. under the Dantiwada Irrigation
Scheme. The respondent-plaintiff, who was engaged in the
business of executing such works, had filled-in the tender along
with other applicants. The tender of the respondent-plaintiff
came to be accepted vide letter of acceptance dated 12.12.1980.
The respondent-plaintiff provided requisite security deposit at
the time of execution of the works contract. Thereafter, the
appellant-State issued work order in favour of the respondent-
plaintiff whereby, the respondent-plaintiff was required to
commence the work on 17.12.1980. However, it appears that
the work could not be commenced on account of some land
acquisition related issues and therefore, the works contract
came to be terminated in the year 1985.
2.1 Being aggrieved by the action of the appellant-State, the
C/FA/848/2007 JUDGMENT
respondent-plaintiff filed the suit in question before the Court
below claiming Rs.83,14,988/- as damages along with interest at
the rate of 18% per annum from the date of filing of suit till its
realization along with costs. The said suit was partly decreed in
favour of the respondent-plaintiff whereby, the appellant-State
has been directed to pay the amount of security deposit of
Rs.1,03,661/- together with interest at the rate of 18% per
annum from the date of the suit till its realization, by way of
impugned judgment and decree dated 28.03.2005. Being
aggrieved by the same, the appellant-State has preferred the
present appeal.
3. Mr. Utkarsh Sharma, learned Assistant Government
Pleader, submitted that the security deposit given by the
respondent-plaintiff at the time of execution of the works
contract was up to 31.11.1983. However, when the contract
came to be disseminated in accordance with the terms of the
agreement, the amount of security deposit given as bank
guarantee was released by the appellant-State vide letter dated
07.01.1985. The respondent-plaintiff has never deposited any
amount in cash and therefore, there is no question of returning
any amount, as directed by the Court below. It was, therefore,
prayed that the impugned judgment and decree passed by the
Court below is erroneous and deserves to be quashed and set
aside.
4. Mr. Nirav Mishra, learned advocate appearing for the
respondent-plaintiff, submitted that the Court below had not
believed the say of the appellant-State that it had released the
amount of security deposit taken from the respondent-plaintiff
since the appellant-State had not produced any documentary
C/FA/848/2007 JUDGMENT
evidence in support of such say. Therefore, the Court below had
decreed the suit partly in favour of the respondent-plaintiff by
directing the appellant-State to make payment of the amount of
security deposit with interest. It was, accordingly, prayed that
the Court may not entertain the present appeal.
5. Heard learned counsel on both the sides and perused the
material on record. It respondent-plaintiff had filed the suit in
question claiming damages of Rs.83,14,988/-. It appears from
the record that the respondent-plaintiff was awarded the work
contract by the appellant-State for constructing an earthen Dam
in pursuance of the tender issued on 11.06.1979. However, on
account of some issues relating to the acquisition of land, the
project could not be proceeded with and the works contract
entered into with the respondent-plaintiff came to be terminated
in the year 1985. Before the Court below, the appellant-State
had produced documentary evidence in form of the resolutions
issued by the Central Government dated 26.12.1980 as also the
order passed by the Ministry of Agriculture and Irrigation,
Government of India dated 31.12.1980. It appears from the
material produced on record that the Government of Gujarat had
not obtained prior sanction / approval of the Government of
India for the use of any "Forest Area" for "any other purpose"
and therefore, the project in question could not be proceeded
with and ultimately, the contract came to be terminated.
Considering the aforesaid factual aspects, we are of the view that
the Court below was justified in not holding the appellant-State
of being guilty to perform its part of the contract.
6. Insofar as the amount of security deposit given by the
respondent-plaintiff is concerned, it was the case of the
C/FA/848/2007 JUDGMENT
appellant-State before the Court below that it had returned the
amount of security deposit to the respondent-plaintiff on
07.01.1985, i.e. in pursuance of the termination of works
contract. The appellant-State has moved Civil Application No.01
of 2010 in the present appeal under Order 41 Rule 27 of Code of
Civil Procedure for production of additional evidence. Along with
the memorandum of civil application, a document in the form of
letter dated 14.07.2005 of Dena Bank, Burhanpuri Bhagal
Branch, Surat addressed to the Executive Engineer, Irrigation
Department, Amreli has been produced, which states that the
said Branch does not have any bank guarantee for
Rs.1,03,661/- in the name of M/s. Bharat Vijay Construction
Company, Surat, i.e. the respondent herein. Another document
annexed along with the civil application is a letter dated
07.01.1985 of appellant No.2 herein addressed to the Manager,
Dena Bank, Baranpuri Branch, Surat stating that the Bank
Guarantee of Rs.1,03,661/- in favour of M/s. Bharat Vijay
Construction Company, Surat is not required for further period
by the Office of the appellant and hence, the same has been
released and sent to the party concerned by Registered A.D.
Post.
7. The impugned judgment and decree was passed on
28.03.2005. It is to be noted that the communication of
appellant No.2 informing the concerned Bank that the Bank
Guarantee of the respondent-plaintiff has been released and
which is sought to be produced by way of additional evidence is
dated 07.01.1985. The said letter regarding release of the Bank
Guarantee, though being of the year 1985, was never produced
before the Court below in the suit proceedings for reasons best
known to the appellants. In the civil application, it has been
C/FA/848/2007 JUDGMENT
urged that though the Bank Guarantee furnished by the
respondent-plaintiff was released at the instance of the
appellants themselves, the respondent-plaintiff has taken a
dishonest stand contending that the amount of security deposit
has not been paid. It was contended that the appellant-State has
been wrongly fastened with the liability to pay interest on the
said amount of Bank Guarantee. It is also contended that the
documents in question are public record and could not be forged
and therefore, their non-production in the suit proceedings
would not prejudice the defence of the respondent-plaintiff.
8. The civil application has been moved under Order 41 Rule
27 of CPC. Under the said provision, additional evidence could
be adduced under any one of the three situations provided
therein. For ready reference, the said provision is reproduced
hereunder;
"27. Production of additional evidence in Appellate
Court. -
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or documentary,
in the Appellate Court. But if -
(a) the Court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not produced by him at the
time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or
C/FA/848/2007 JUDGMENT
document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record the
reasons for its admission."
8.1 It is well-settled that additional evidence cannot be
permitted to be adduced so as to fill-up the lacunae or to patch
up the weak points in the case, as has been held by the Apex
Court in the case of N. Kamalam v. Ayyaswami reported in
(2001) 7 SCC 503. The trial Court has framed issues at Exhibit-
12. Before the Court below, the appellants were called upon to
prove the issue that there was no concluded contract between
the parties, which was answered in the negative. The appellants
had every opportunity to produce the aforesaid documents in the
suit proceedings but, they never did so. Now, by producing the
said documents with a plea to consider them as additional
evidence, the appellant-State intends to fill-up the lacunae,
which could not be permitted. Considering the totality of facts,
we are of the view that the direction to return the amount of
security deposit has to subsist; however, the imposition of
interest at the rate of 18% per annum on the said amount is
onerous as the said amount is public money.
9. In the result, the appeal is partly allowed. The impugned
judgment and decree dated 28.03.2005 passed by the Court of
learned Civil Judge (S.D.), Gandhinagar in Special Civil Suit
No.55 of 1995 [New] (Special Civil Suit No.162 of 1988 [Old] )
qua directing the appellant-State to pay Rs.1,03,661/- to the
respondent-plaintiff is confirmed. However, insofar as the
direction to pay interest at the rate of 18% per annum on the
said amount is concerned, the same is modified and reduced to
C/FA/848/2007 JUDGMENT
simple interest at the rate of 6% per annum, which shall be
payable from the date of decree dated 28.03.2005 till the date of
refund. The impugned judgment and decree stands modified
accordingly. Registry to send the record and proceedings, if lying
with this Court, to the trial Court concerned forthwith. The civil
application stands disposed of accordingly.
(DR. VINEET KOTHARI, J)
(GITA GOPI, J)
PRAVINKARUNAN
