Karnataka High Court
B Raghunath Prasad vs The Executive Engineer (Ele) on 2 June, 2022
Bench: Ravi V Hosmani
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RSA No. 1586 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1586 OF 2011 (MON)
BETWEEN:
B. RAGHUNATH PRASAD
S/O B. BEERAPPA
AGED ABOUT 49 YEARS
OCC:PWD CLASS-I CONTRACTOR
R/AT 1ST CROSS
RAVINDRA NAGAR EXTENSION
SHIMOGA CITY-577 201.
...APPELLANT
[BY SRI UMESH MOOLIMANI, ADVOCATE FOR
SRI S.V. PRAKASH., ADVOCATE (VC)]
AND:
1. THE EXECUTIVE ENGINEER (ELE.)
KARNATAKA ELECTRICITY BOARD
KPTCL (NOW MESCOM)
MRS DIVISION
SHIMOGA CITY-577201.
Digitally signed by
VEENA KUMARI B 2. THE SECRETARY
Location: High KARNATAKA ELECTRICITY BOARD
Court of Karnataka
BANGALORE / GENERAL MANAGER
(ADMN & HRD), KPTCL
(NOW BESCOM)
BENGALURU-560 001.
...RESPONDENTS
[BY SRI H.V.DEVARAJU, ADVOCATE (PH)]
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 14.12.2010 PASSED IN
R.A.NO.227/2005 ON THE FILE OF THE PRL. DISTRICT JUDGE,
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RSA No. 1586 of 2011
SHIMOGA, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 24.10.2005 PASSED IN
O.S.NO.263/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) &
C.J.M, SHIMOGA.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 14.12.2010
passed by Principal District Judge, Shimoga, in
R.A.No.227/2005 and judgment and decree dated 24.10.2005,
passed by Principal Civil Judge (Sr.Dn.) and CJM at Shimoga, in
O.S.No.263/1997, this appeal is filed.
2. Appellant herein was plaintiff in original suit and
respondent in first appeal, whereas respondents herein were
defendants no.1 and 2 in suit and appellants no.1 and 2 in first
appeal. They shall hereinafter be referred as per their ranks in
original suit.
3. Plaintiff filed O.S.No.263/1997 seeking for recovery
of Rs.52,000/- with interest at 18% per annum from date of
suit till realisation. In plaint, it was stated that plaintiff was a
private contractor and defendant no.1 was executive engineer
RSA No. 1586 of 2011
working under defendant no.2. It was further stated that
defendant no.1 had issued a tender notification on 22.02.1994
for carrying construction of compound wall to left side of M.R.S.
Shimoga. That plaintiff had submitted his bid quoting rate of
Rs.4,10,272.50. Plaintiff's bid was accepted by defendant no.1
and tender was awarded to him by issuing letter dated
14.12.1995. An agreement incorporating terms and conditions
was also executed. As per terms of agreement, work was
required to be completed 'within six months from date of
its commencement'.
4. It was further stated that though agreement was
executed on 25.12.1995, spot was not identified and issuance
of work order was delayed, constraining plaintiff to commence
work only from 01.05.1996. Delay was alleged to be on account
of acts of defendants. Upon completion of construction, plaintiff
submitted final bills for acceptance. But, defendant no.1 did not
make payment. It was stated that defendant no.1 was due as
follows:
a) Deposited amount Rs.12,000.00
b) 5% deducted in cash bill Rs.15,000.00
c) Final work bill payment Rs.25,000.00
Total Rs.52,000.00
RSA No. 1586 of 2011
5. Claiming said amount, plaintiff got issued legal
notice dated 10.07.1997 to defendant no.1. Instead of making
payment, a false reply was got issued on 21.07.1997
contending that defendants were not liable to pay any amount.
Constrained by refusal by defendant to make payment, plaintiff
filed suit for recovery of amount due.
6. On service of suit summons, defendant no.1 filed
written statement generally denying plaint averments and
specifically stating that work spot was not identified. It was
asserted that immediately after signing of agreement on
25.12.1995, lineout was given. Thereafter, there was no
obstacle to plaintiff to commence work. It was specifically
pleaded that in final bill submitted, plaintiff clearly admitted
that work was started on 25.12.1995 and completed on
18.10.1996, which was clearly more than stipulated period of
six months. Plaintiff could have approached competent
authority and got delay condoned. Instead of same, plaintiff
had filed suit.
RSA No. 1586 of 2011
7. While denying plaintiff's claim as imaginary
defendant no.1 stated that it was plaintiff who was liable to pay
to defendants following sums:
i) intermediate payment of Rs.2,82,284.90
ii) Deduction towards income tax, sales tax and
security deposit of Rs.28,738/-.
iii) Amount of Rs.499/- towards income tax, Rs.998/-
towards sales tax, security deposit of Rs.3,732/-
and;
iv) Penalty on Rs.3,41,426.18 @ 7.5% i.e.,
Rs.25,607/-.
Based on above figures, defendant no.1 alleged that
plaintiff himself was due to defendants.
8. Based on pleadings, trial Court framed following
issues:
1. Whether the plaintiff proves that the
commencement of work was delayed for
want of written order from the
defendant?
2. Whether the plaintiff is entitled to suit
claim with interest at 18% p.a. as
claimed?
3. What Decree or Order?
RSA No. 1586 of 2011
9. Thereafter plaintiff got himself examined as PW.1.
Exhibits P.1 to P.9 were marked. On behalf of defendants
Assistant Executive Engineer, was examined as DW.1 and
Exhibits D1 to D.9 were marked.
10. On consideration, trial Court answered issue no.1 in
negative; issue no.2 partly in affirmative and issue no.3 by
decreeing suit in part and directed defendants no.1 and 2
jointly and severally to pay Rs.48,262/- with interest at 6% per
annum.
11. Aggrieved by judgment and decree, defendants no.1
and 2 preferred R.A.No.227/2005 on several grounds. It was
contended that trial Court failed to appreciate oral and
documentary evidence in proper perspective. It was contended
that plaintiff had violated terms of tender agreement by failing
to complete construction within time prescribed. Despite same,
trial Court decreed suit. It was also contended that impugned
judgment and decree was erroneous, capricious, arbitrary and
contrary to law and facts of case.
12. Considering grounds urged, first appellate Court
framed following points for its consideration:
RSA No. 1586 of 2011
1. Does appellants/defendants prove that the
respondent/contractor did not construct the
compound on the left side of M.R.S.
Shimoga within the contractual period of 6
months from the date of its commencement
as per the contract entered into between
themselves and respondent on 25.12.1995
and so, they have levied penalty at the rate
of 7.5% per annum on the tender amount
and so, they are justified in deducting that
penal amount from the final bill of the
respondent.
2. Does respondent/plaintiff prove that the
delay caused in commencing the contract
work was due to the laches and negligence
of the appellants/defendants in not
delivering the work spot along with
measurement and work order and so, he is
entitled to recover and suit amount of
Rs.52,000/- from the
appellants/defendants?
3. Does appellants further prove that
impugned judgment and decree passed by
the court below is erroneous, capricious,
arbitrary, contrary to facts and law and
needs to be set aside?
4. What Order or Decree?
13. On consideration, first appellate Court answered
points no.1 and 3 in affirmative; point no.2 in negative and
point no.4 by allowing appeal and setting aside judgment and
decree passed by trial Court. Aggrieved thereby, plaintiff is in
second appeal.
RSA No. 1586 of 2011
14. Sri Umesh Moolimani, Advocate for Sri S.V.
Prakash, learned counsel for plaintiff submitted that admittedly,
tender condition clearly stipulated that work was to be
completed within six months from date of commencement of
work. Ex.P9 - Tender Notification itself provided for deduction
of period of monsoon. Plaintiff commenced work on 1.05.1996
and completed it on 18.10.1996. Even by assuming that
plaintiff had commenced work on 25.12.1995, it is common
knowledge that monsoon in Shimoga extends beyond three
months i.e., from June upto September. Therefore, completion
of work on 18.10.1996 cannot be said to be beyond stipulated
period. Therefore, trial Court was justified in decreeing suit and
first appellate Court erred in setting aside same.
15. It was further contended that defendants paid first
and second bill submitted by plaintiff but withheld payment of
third and final bill. Security deposit and earnest money deposit
(EMD) are also not paid despite plaintiff issuing legal notice on
10.07.1997. First appellate Court failed to appreciate these
factors while passing impugned judgment and decree.
RSA No. 1586 of 2011
16. Learned counsel further submitted that plaintiff had
very clearly pleaded sums due as follows:
3rd and final bill - Rs.25,000/-
EMD - Rs.12,000/-
5% deduction in each bill
towards security deposit - Rs.15,000/-
17. Without any challenge to said calculation made by
plaintiff in plaint, first appellate Court erred in reversing decree
passed by trial Court. It was lastly contended that impugned
judgment and decree passed by first appellate Court was
contrary to admissions given by DW-1.
18. On other hand, Sri. H.V. Devaraju, learned counsel
for respondent no.1 supported impugned judgment and decree
opposed appeal. It was contended that tender agreement very
clearly stipulated that period of completion of work was six
months. It was specifically pleaded by defendant no.1 that date
of commencement of work was 25.12.1995 as stated by
plaintiff in final bill. There is no dispute about date of
completion i.e., 18.10.1996. Therefore, plaintiff clearly fail to
complete work within six months. It was further contended
intention of defendants in stipulating period of six months for
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RSA No. 1586 of 2011
completion was to ensure completion of work before onset of
monsoon. In any case, even if, period of three months were to
be deducted, plaintiff would have nevertheless fail to complete
work within six months. Therefore, defendant no.1 was fully
justified in imposing penalty @ 7.5% on amount of
Rs.3,41,426.18. In view of same, plaintiff himself was due sum
of Rs.28,738/- to defendants. Therefore, there was no merit in
suit claim.
19. Learned counsel further contended that while
passing impugned judgment and decree had framed two issues
and had answered issue no.1 in negative which was not
challenged by plaintiff. By virtue of same, finding that no delay
occurred on account of defendants attained finality. Such being
case, trial Court erred in relying upon Ex.D.6 to conclude that
plaintiff has not commenced work as on 19.01.1996. Learned
counsel submitted that even finding of trial Court that plaintiff
failed to establish that date of commencement of work was
01.05.1996 also remained unchallenged. Relying upon evidence
led by defendants, without giving clear finding regarding date
of commencement, trial Court concluded that work was
commenced within period of six months. First appellate Court
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RSA No. 1586 of 2011
upon reconsideration of evidence had rightly set aside said
finding. It was lastly submitted that finding of first appellate
Court regarding date of commencement of work being a finding
of fact did not call for interference in second appeal.
20. Heard learned counsel, perused impugned
judgment and decree and records.
21. Appeal was admitted on 04.12.2015 to consider
following substantial questions of law:
"1. Whether judgment and decree passed by
appellate Court in allowed
R.A.No.227/2006 filed by defendants and
setting aside judgment and decree passed
in O.S.No.263/1997 by trial Court and
consequently dismissing suit of plaintiff for
recovery of money is sustainable in law?
2. To consider other substantial questions of
law which may arise while hearing appeal."
During argument, no other substantial question of law is
proposed for consideration. Therefore, only substantial question
of law framed is examined herein.
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RSA No. 1586 of 2011
22. It is not in dispute that in response to tender
notification dated 22.02.1994, plaintiff had submitted his bid on
22.11.1994 and was awarded tender work. Tender agreement
was executed on 25.12.1995 and work order issued on said
day. It is also not in dispute that period stipulated for
completion of work was six months from date of
commencement of work. Date of completion of work on
18.10.1996 is also not in dispute. In Ex.P.9 - there is clear
stipulation that period of six months shall exclude monsoon
period.
23. As per above submissions, main dispute is
regarding date of commencement of work. While it is
contended by plaintiff that date of commencement of work was
01.05.1996 and as it was completed on 18.10.1996, it was
within six months. But according to defendant no.1, date of
commencement of work was 25.12.1995 as stated by plaintiff
in his first running bill submitted on 16.02.1996.
24. In this regard, trial Court observed that tender
agreement was executed between plaintiff and defendant no.1
on 25.12.1995. It referred to plaintiff's admission about receipt
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RSA No. 1586 of 2011
of letter - Ex.D.6, from defendant no.1, wherein defendant
no.1 directed plaintiff to commence/complete work as soon as
possible. It noted that first running bill submitted by plaintiff
Ex.D.1 was on 15.02.1996. As running bills can be submitted
only after commencement of work, trial Court held plaintiff's
claim of date of commencement of work as 01.05.1996 was
not correct. It referred to Ex.D.6 - letter issued by defendant
no.1 to plaintiff on 19.01.1996 stating that plaintiff had not
started work and cautioning him that if he fails to take up work
as early as possible, consequent action would follow.
25. As either of parties fail to lead evidence and
establish specific date of commencement of work, trial Court
hypothetically considered date of commencement of work as
19.01.1996 i.e. date of Ex.D.6. It referred to cross-examination
of DW-1 wherein he admitted that period of three months is
excluded from period of completion of work if it covers
monsoon period and also about one week time required for
removal of fence from place of construction. By excluding
monsoon period of three months as well as time taken for
removal of fence from deemed period of construction i.e., from
19.01.1996 to 18.10.1996, apart from one week period
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RSA No. 1586 of 2011
required for removal of fence, trial Court held that plaintiff had
completed construction within six months.
26. However, first appellate Court while answering point
no.1 considered date of execution of agreement i.e. 25.12.1995
as date of commencement of construction and date of
completion as 18.10.1996 to hold that completion of
construction was belated by period of three months twenty
three days. It referred to denial of knowledge about period of
monsoon being excluded from time stipulated for completion of
construction as attempt to hide truth. It also referred to
contents of Exs.D.3 to D.6 and D.8 i.e., correspondence by
defendant no.1 with plaintiff, whereunder plaintiff was
prompted to commence and complete work within time as
indicating lapses on part of plaintiff. On such finding, it held
that defendants were justified in imposing penalty @7.5%.
While passing impugned order, first appellate Court also
observed that in final bill plaintiff had mentioned date of
commencement of work as 25.12.1995 and therefore plaintiff
was estopped from contending otherwise.
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RSA No. 1586 of 2011
27. However, final bill submitted by plaintiff is not
marked in evidence, neither of exhibits Ex.D.1 to D.8 mention
date of commencement of work. Indeed there is no pleading
with regard to delay occurring on account of failure by
defendant no.1 to ensure removal of fence existing at work
site. Even finding of trial Court that plaintiff's claim to have
commenced work from 01.05.1996 cannot be accepted as
plaintiff had submitted running bills on 15.02.1996 would be
justified. Further as noted above DW-1 admitted during cross-
examination that three months would be period of monsoon.
28. Further definition of month in Section 35(3) would
be calendar month. Hence, six months would be six calendar
months commencing from 19.01.1996. I am supported by
judgment of this Court in case of Loordswamy Vs. Presiding
Officer ESI Court and another reported in ILR 2001 Kar
2276 and decision of Hon'ble Supreme Court in case of Tamal
Lahiri Vs. P.N. Tagore reported in (1979) 1 SCC 75.
29. Therefore, computation of time taken for
completion of construction even from 19.01.1996 till admitted
date of completion i.e., 18.10.1996 would be two days shy of
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RSA No. 1586 of 2011
nine months (excluding first day). If monsoon period of three
months is excluded, time taken for construction would be within
six months.
30. In view of above, finding of first appellate Court
regarding date of commencement of work as well as its
conclusion that time taken for completion of construction was
belated by three months and twenty three days would be
contrary to evidence on record and perverse. Hence,
substantial question of law is answered in affirmative.
In result I pass following:
ORDER
Appeal is allowed. Impugned judgment and decree
passed by Principal District Judge, Shimoga, in
R.A.No.227/2005 is set aside and judgment and decree dated
24.10.2005, passed by Principal Civil Judge (Sr.Dn.) and CJM,
Shimoga, in O.S.No.263/1997 is restored. Defendants are
directed to pay Rs.48,262.00 with future simple interest at rate
of 6% p.a., from date of order.
Sd/-
JUDGE
*Psg/BVK
