Karnataka High Court

The Executive Engineer vs Ananth Ganapati Bhat on 4 June, 2025

Author: Hanchate Sanjeevkumar

Bench: Hanchate Sanjeevkumar

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                                                              RFA No. 100316 of 2017


                           HC-KAR



                                       IN THE HIGH COURT OF KARNATAKA

                                               DHARWAD BENCH

                                     DATED THIS THE 04TH DAY OF JUNE, 2025

                                                    BEFORE

                               THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

                               REGULAR FIRST APPEAL NO. 100316 OF 2017 (MON)

                          BETWEEN:

                          THE EXECUTIVE ENGINEER
                          (ZILLA PANCHAYAT ENGINEERING DIVISION),
                          RURAL DEVELOPMENT ENGINEERING DEPARTMENT,
                          SIRSI DIVISION, SIRSI,
                          DIST: UTTARA KANNADA-581 401.
                                                                           ... APPELLANT
                          (BY SRI VISHWANATH HEGDE, ADVOCATE.)

                          AND:

                          1.   ANANTH GANAPATI BHAT,
                               AGED 61 YEARS, OCC: ENGINEER AND
                               PWD CONTRACTOR, R/O: BELLEKERI,
                               SIRSI TALUK, DIST: UTTARA KANNADA-581401.

Digitally signed by       2.   THE STATE OF KARNATAKA,
MALLIKARJUN RUDRAYYA
KALMATH                        REPRESENTED BY DEPUTY COMMISSIONER,
Location: HIGH COURT OF
KARNATAKA DHARWAD              UTTARA KANNADA, KARWAR,
BENCH
                               DIST: UTTARA KANNADA-581301.
                                                                    ... RESPONDENTS
                          (BY SRI B.G.INDI, ADVOCATE, FOR R1;
                          SRI ASHOK T. KATTIMANI, ADDITIONAL GOVERNMENT ADVOCATE,
                          FOR R2.)

                               THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
                          THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE
                          JUDGMENT AND DECREE DATED 15.02.2017 PASSED IN
                          O.S.NO.51/2015, ON THE FILE OF THE SENIOR CIVIL JUDGE, SIRSI,
                          OR IN THE ALTERNATIVE TO REMAND THE MATTER TO TRIAL COURT
                          WITH A MANDATE TO RECORD THE EVIDENCE OF DEFENDANT NO.1
                          AND TO DECIDE THE MATTER THEREAFTER IN ACCORDANCE WITH
                          LAW AND ETC.,.
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                                                NC: 2025:KHC-D:7302
                                            RFA No. 100316 of 2017


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     THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT IS DELIVERED THEREIN AS UNDER:


                       ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

This appeal is filed by defendant No.1 challenging the

judgment and decree dated 15.02.2017, passed by the

Senior Civil Judge, Sirsi, in O.S.No.51/2015, thereby the suit

filed for recovery of money is partly decreed holding that the

defendants are jointly and severally liable to pay an amount

of Rs.5,45,648/- to the plaintiff together with interest at the

rate of 14% p.a. from 21.04.2006 till realization of the

amount.

2. For the purpose of convenience and easy

reference, ranking of the parties is referred to as per their

status before the trial Court.

3. The plaintiff/respondent No.1 filed suit for

recovery of money against the defendants stating that

defendant No.1 has issued work order to the plaintiff for

construction of Shri Hardikar Manjappa Memorial Hall at

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Banavasi in Sirsi taluka and accordingly an agreement came

to be executed on 22.03.2000 and the plaintiff has taken

possession of the land and started construction of the

Memorial Hall and completed 95% of the said work and 5%

of the work is remained like, removal of scaffolding, surplus

materials and rubbish from the premises. But in the

meantime, defendant No.1 attempted to take possession of

the constructed premises without satisfying the bill to the

plaintiff of Rs.4,71,526/-. Therefore, the plaintiff was

constrained to file suit in O.S.No.72/2006 for permanent

injunction against defendant No.1, but the said suit was

dismissed. In the said suit O.S.No.72/2006, defendant No.1

took pleading that the plaintiff has fully completed the

construction, therefore, has taken possession. Therefore, the

plaintiff in the present suit by relying on the pleading taken

in O.S.No.72/2006 that the entire construction is completed,

pleaded that defendant No.1 has not honoured the bill of

Rs.4,71,526/- and therefore, filed a suit for recovery of

money along with interest at the rate of 18% p.a.

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4. In pursuance to the summons served, the

defendants appeared and filed the written statement and

denied that the plaintiff has completed construction work.

Further taken contention that the plaintiff has not completed

the construction work, therefore, the bill was not honoured.

With thee pleadings, prayed to dismiss the suit.

5. Based on the pleadings of the parties, the Trial

Court has framed the following:

ISSUES

1. Whether the plaintiff proves that due to unavoidable circumstances the contract work entrusted to him could not be completed by him within time?

2. Whether he further proves that the contract work entrusted to him is yet to be completed?

3. Whether the plaintiff further proves that the defendant No.1 has forcibly tried to take possession of the premises contrary to the terms of the contract?

4. Whether he further proves that due to the act of the defendants he has suffered huge monetary loss?

5. If so, whether the plaintiff is entitled to recover the claim amount as prayed for by way of damages?

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6. Whether the Defendant No.1 proves the breach of terms of contract committed by the plaintiff in not completing the work within the stipulated time?

7. Whether the plaintiff is entitled to the suit reliefs?

8. What order or decree?

6. The plaintiff is examined as PW.1 and got marked

documentary evidence as Exs.P.1 to Ex.P.6. The defendants

have not examined any witnesses and also not produced any

documents in support of their contention.

7. The Trial Court partly decreed the suit by

directing the defendants to pay an amount of Rs.5,45,648/-

to the plaintiff with interest at the rate of 14% p.a. from

21.04.2006 till its realization. Being aggrieved by it,

defendant No.1 has preferred the above appeal by raising

various grounds and the main grounds raised are that, the

suit is not maintainable as per section 295 of the Karnataka

Gram Swaraj and Panchayat Raj Act, 1993 ('the Act' for

short). Further, the suit is not maintainable since the Zilla

Panchayat is not made as a party to the suit, but only the

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Engineering Division is made as party. Therefore, on all

these grounds prayed to set aside the judgment and decree

passed by the trial Court.

8. Upon hearing the learned counsels appearing for

the parties and perusing of Trial Court records, the points

that arise for my consideration are as under:

i) Whether, under the facts and circumstances involved in the case, defendant No.1 proves that the suit is not maintainable as per section 295 of the Act?

ii) Whether, under the facts and circumstances involved in the case, defendant No.1 proves the fact that the plaintiff has not completed the construction work?

iii) Whether, the judgment and decree passed by the Trial Court requires any interference?

9. Learned counsel for the appellant/defendant No.1

submitted that the suit is not maintainable as per section

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295 of the Act. Further the suit is not maintainable since Zilla

Panchayat is not made as party, but only Engineering

Division is made as party. Further submitted, the plaintiff has

not completed the construction work, therefore, not entitled

for the amount raised in the bill. Therefore, on all these

grounds prays to allow the appeal.

10. On the other hand, learned counsel for

plaintiff/respondent No.1 submitted that the suit is

maintainable and it is rightly considered by the trial Court.

Further submitted that defendant No.1 himself admitted that

the plaintiff has completed the construction work and

accordingly has taken possession. Therefore the plaintiff is

entitled for recovery of money from defendant No.1.

Therefore, justified the judgment and decree passed by the

trial Court and hence prays to dismiss the appeal.

11. In the present case it is not disputed that

defendant No.1 has entrusted the work to the plaintiff in a

tender as the plaintiff being successful tenderer and

accordingly the plaintiff had been issued with work order for

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construction of Shri Hardikar Manjappa Memorial Hall at

Banaavasi in Sirsi taluka; defendant No.1 had executed the

agreement dated 22.03.2000 in this regard. It is also not

disputed that upon getting tender from defendant No.1,

plaintiff took possession of the premises for construction and

according to the plaintiff, he has completed 95% of the

construction work. According to the plaintiff, only remaining

5% of work was yet to be completed, like removing

scaffolding, surplus material and rubbish from the premises.

But in the meantime defendant No.1 has attempted to take

possession of the constructed Memorial Hall without

satisfying the bill. Therefore, the plaintiff objected and has

filed suit for injunction in O.S.No.72/2006. The said suit was

dismissed. In the said suit O.S.No.72/2006, defendant No.1

took contention that the plaintiff has completed the

construction, therefore, defendant No.1 has taken possession

of the constructed Memorial Hall.

12. When this being the fact, defendant No.1 has

admitted that construction of Memorial Hall was completed,

then defendant No.1 could not resile from the statement

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made in O.S.No.72/2006 as it is amounting to estoppel

under section 115 of the Indian Evidence Act (Old Act).

Therefore, considering these aspects, the trial Court is

correct in decreeing the suit. There is no evidence adduced

or produced by the defendants that they have honoured the

bill raised by the plaintiff, but the bill raised by the plaintiff is

still due. Therefore, the plaintiff has filed the suit. On the

contrary there is no evidence by defendant No.1 that they

have paid the bill. Therefore, under these circumstances the

trial Court is correct in decreeing the suit in part.

13. Regarding maintainability of the suit, as per

section 295 of the Act, there is no merit found in the said

ground raised and the contention taken by the learned

counsel for appellant/defendant No.1.

14. Section 295 of the Karnataka Gram Swaraj and

Panchayat Raj Act, 1993, reads as under:

295. Bar of suits etc.-(1) No Civil Court shall entertain a suit objecting to an assessment demand or charge made or imposed under this Act, or for the recovery of any sum of money collected under the authority of this Act, or for damages on account of any assessment or

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collection of money under the said authority, if the provision of this Act have been in substance and effect compiled with.

(2) No suit or other legal proceeding shall lie against a Chief Executive Officer or Executive Officer or Secretary or any other officer of the Government or a Grama Panchayat or Taluk Panchayat or Zilla Panchayat or any member, officer, servant or agent of such Grama Panchayat, Taluk Panchayat or Zilla Panchayat acting under its direction in respect of anything done or purporting to have been lawfully done and in good faith under this Act or any rule, regulation, bye-law or order made thereunder except with the previous sanction of the Zilla Panchayat or such officer as the Zilla panchayat may specify.

(3) No suit or other legal proceeding shall lie against the Government in respect of anything done under this Act, or any rule, regulation or bye-law made thereunder.

15. As per sub-section (1) of Section 295 of the Act,

the Civil Court does not have jurisdiction regarding an

assessment demand or charge made or imposed under this

Act, or for the recovery of any sum of money collected under

the authority of this Act, or for damages on account of any

assessment or collection of money under the said authority.

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16. Here, learned counsel for appellant/defendant

No.1 argued that for recovery of money the suit is barred.

But there is no merit in this contention for the reason that in

sub-section (1) of Section 295 of the Act the suit is barred

for recovery of money collected under the authority of this

Act. Here, in the present case there is no question of amount

is collected under the authority of the Act by any officials of

the Zilla Panchayat. But in the present case the suit is filed

for recovery of money since defendant No.1 has not

honoured the bill raised by the plaintiff even though the

plaintiff has completed construction work of Memorial Hall.

Therefore this sub-section (1) of Section 295 of the Act is not

applicable to the present case.

17. Further, sub-section (2) of Section 295 of the Act

relates to bar of the suit when the officials are acting under

the direction of Zilla Panchayat in respect of anything done

or purporting to have been lawfully done and in good faith

under this Act or any rule, regulation, bye-law or order made

thereunder. Under these circumstances the suit is barred.

But in the present case there is no question of being act

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done or purporting to have been lawfully done by the

authority of the Zilla Panchayat. Even any officials of Zilla

Panchayat, Taluka Panchayat, Gram Panchayat acting under

the direction of the Act or Authority, do anything, then the

suit is not maintainable. But the facts in the present case are

different. Here the plaintiff is not challenging the act or

action of the officials/authority of Zilla Panchayat. The suit is

filed for simply recovery of money from defendant No.1

contending that the plaintiff has completed construction work

of Memorial Hall. Therefore, this sub-section (2) of Section

295 of the Act is also not applicable to the present case.

18. Therefore, upon interpreting the provisions of

sub-section (1) and (2) of Section 295 of the Act on the facts

and issues involved in the case, there is no merit in the

grounds raised in the memorandum of appeal and also in the

arguments addressed by the learned counsel for the

appellant. Therefore, the appeal is liable to be dismissed as

there is no error found in the judgment and decree passed

by the trial Court.

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19. Defendant No.2 is the Government represented

by the Deputy Commissioner is misjoinder of party in the

suit. As per sub-section (3) of Section 295 of the Act, the

Government shall not be a party, but the plaintiff has made

the Government as party.

20. Therefore, the judgment and decree passed by

the trial Court is liable to be confirmed except awarding of

rate of interest. The trial Court has imposed interest at the

rate of 14% p.a. which is found to be little bit exorbitant

one. The decreetal amount as passed by the trial Court shall

carry interest at the rate of 12% p.a. from 21.04.2006 till its

realization. Therefore, the judgment and decree is liable to

be modified insofar as imposing rate of interest is concerned

only. Therefore, the appeal is liable to be allowed in part so

far as imposing of rate of interest is concerned. Hence,

I answer points No.1 and 2 raised for consideration in the

negative and point No.3 partly affirmative so far as rate of

interest is concerned.

21. Hence, I proceed to pass the following:

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                               ORDER


       i)     The appeal is allowed in part.


       ii)    The        judgment        and     decree   dated
15.02.2017, passed by the Senior Civil Judge, Sirsi, in O.S.No.51/2015, is modified so far as imposing of interest is concerned and the interest at the rate of 12% p.a. is imposed on the decreetal amount from 21.04.2006 to till realization of the entire amount.

iii) No order as to costs.
       iv)    Draw decree accordingly.




                                                   Sd/-
                                         (HANCHATE SANJEEVKUMAR)
                                                  JUDGE


MRK
CT: BCK

 