Tripura High Court
Ardeshir B. Cursetjee & Sons. Ltd vs Sri Niranjan Debnath on 2 April, 2024
HIGH COURT OF TRIPURA
AGARTALA
RFA No.09 of 2023
1. Ardeshir B. Cursetjee & Sons. Ltd.,
Mackinnon Mackenzie Building, 4 S.V. Marg, Ballord Estate, Mumbai
400001, represented by its Vice President.
2. The Vice President,
Ardeshir B. Cursetjee & Sons. Ltd. Mackinnon Mackenzie Building, 4 S.V.
Marg, Ballord Estate, Mumbai 400001
......Defendant- Appellant(s)
VERSUS
Sri Niranjan Debnath,
S/O Sri Nilmani Debnath, resident of Santipur, P.O. & P.S. Pechartal, District
Unakoti, Tripura
...... Plaintiff-Respondent(s)
For Appellant(s) : Mr. A. Acharjee, Advocate.
Ms. M. Chakraborty, Advocate.
Ms. S. Sarkar, Advocate.
For Respondent(s) : Mr. G.K. Nama, Advocate.
Sri Niranjan Debnath,
Son of Shri Nilmani Debnath, resident of Santipur, P.O. & P.S. Pecharthal, District
Unakoti, Tripura
...... Plaintiff-Appellant(s)
VERSUS
1. Ardeshir B. Cursetjee & Sons. Ltd.,
Mackinnon Mackenzie Building, 4 S.V. Marg, Ballord Estate, Mumbai
400001, represented by its Vice President.
2. The Vice President,
Ardeshir B. Cursetjee & Sons. Ltd., Mackinnon Mackenzie Building, 4
S.V. Marg, Ballord Estate, Mumbai 400001
...... Defendant-Respondent(s)
For Appellant(s) : Mr. G.K. Nama, Advocate.
For Respondent(s) : Mr. A. Acharjee, Advocate.
Ms. S. Sarkar, Advocate.
Date of hearing : 6th February, 2024.
Date of Judgment : 2nd April, 2024.
Whether fit for reporting : YES NO
√
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
HON'BLE MR. JUSTICE S.D. PURKAYASTHA
JUDGMENT & ORDER
[S. Datta Purkayastha, J]
The judgment dated 12.01.2023 passed by the learned Civil Judge
(Sr. Div.), Court No.2, West Tripura, Agartala in MS No.30 of 2015 and
consequent decree thereof are under challenge in both the appeals. In RFA 12
of 2023, the challenge has been made for limited purpose.
[2] By the said judgment and decree, following reliefs were granted to
the plaintiff (respondent of RFA No.09 of 2023 and appellant of RFA No.12 of
2023) of the original suit:
"26. In the result, the suit of the plaintiff is decreed in favour of
plaintiff and against the defendants on contest with cost with
following declaration:
The plaintiff is entitled to get from the defendants sum of
Rs.17,75,000/-(Rupees Seventeen Lakhs and Seventy Five Thousand)
Only along with 10% interest per annum on the said amount with
effect from the date of the decree till realization of the said amount.
Senior Sheristadar of this Court is hereby asked to prepare
the decree accordingly and place the same before me for obtaining
signature within 15(fifteen) days from today.
This case is thus disposed off on contest......................"
[3] North Eastern Electric Power Corporation Ltd. (for short
"NEEPCO") entered into an erection, procreation and construction (EPC)
contract with Bharat Heavy Electrical Ltd. (for short "BHEL") for construction
of one gas based combine cycle power project at Monarchak under Sepahijala
District to be setup by said NEEPCO. BHEL in turn entered into another
contract with defendant No.1, Ardeshir B. Cursetjee & Sons. Ltd. (appellant
No.1 of RFA No.09 of 2023 and respondent No.1 of RFA No.12 of 2023) for
transportation of various over dimension cargo items for said construction. For
that purpose, heavy machineries were required to be transported from
Hyderabad to Kolkata by road and then from Kolkata to Badarpur (Assam)
through sea and river and from Badarpur to Monarchak site via road. The State
of Tripura did not grant any permission to transport such heavy machineries
through some bridges, as those bridges were weak and would not support the
movement of such heavy machineries thereupon. Therefore, as an alternative,
said defendant No.1 was asked to construct bypass roads made of soil, pipes,
bricks, chips etc. in different places of Tripura like Sanichara, Ramnagar,
Pecherthal, Champaknagar, Sekerkote, Bishalgarh etc. In order to construct
such bypasses, the defendant gave sub-contract in favour of the plaintiff for
construction of such bypasses on abovesaid points.
[4] The dispute arose between the parties regarding construction of
bypass at Bishalgarh. The terms and conditions of the contract regarding
payment to be made to the plaintiff by defendants were that plaintiff would be
paid 20% of the payment after 5 days of commencement of work on the bypass
at Bishalgarh, the next 20% would be released on completion of 50% of the
work, thereafter, further 20% payment would be released upon completion of
100% work and 20% more would be released on movement of 28 heavy/OSD
consignments and the rest 20% would be released on completion of dismantling
of such bypass road and after obtaining a certificate from the concerned
authority regarding removal of such obstruction from the river channel.
[5] The plaintiff alleged that the amount of total contract work was
Rs.86,35,000/- out of which the defendant paid Rs.68,60,000/- and the rest
amount of Rs.17,75,000/- was illegally kept undisbursed by them though, the
plaintiff had completed all the works as per terms of the contract. He,
thereafter, made repeated requests and finally issued a demand notice through
his advocate, dated 17.07.2013 and getting no response from defendants, he
finally filed the suit for recovery of said Rs.17,75,000/- along with 10% interest
thereupon from 17.05.2013 (may be 17.07.2013) till realization.
[6] According to the defendants, on 03.04.2013, such heavy
machineries were transported through the said Bishalgarh bypass and in
response to the Email dated 05.04.2013 of the plaintiff, the defendants gave
him permission to dismantle the said bypass vide their reply Email dated
06.04.2013. As alleged by the defendants, it was also asked by them that such
dismantling had to be done in a time bound manner and original condition of
the river bed was to be restored, but till 06.05.2013, plaintiff did not dismantle
the said Bishalgarh bypass. On 06.05.2013 itself, there was heavy shower in
that area and for not dismantling said bypass, the area was flooded with water
causing heavy damage to the nearby houses and shops only for negligence and
inaction of the plaintiff. The defendants on 07.05.2013, sent an Email to the
plaintiff that due to failure of the plaintiff to undertake such dismantling work,
that incident had occurred and therefore, BHEL asked the defendants to
undertake the work of dismantling and cost of the same might be deducted from
the final bill of the plaintiff. They also asked the defendants to arrange for
necessary compensation to the affected person. By an Email dated 09.05.2013,
the defendants asked the plaintiff to join a meeting with them in presence of
BHEL, NEEPCO and the local administration on 13.05.2013 but the plaintiff
did not respond. Being compelled, the defendants engaged another contractor
namely, Tapan Kumar Nag and got the said bypass dismantled and the river bed
restored and cost of the same to the tune of Rs.17,75,000/- was adjusted from
the final bill of the plaintiff relying on another clause of the contract. The
defendants also filed one counterclaim bearing No. MS (CC)01 of 2015 for
realization of Rs.28,58,371/- from plaintiff for the payment as was allegedly
made by them to said Tapan Kumar Nag and also for realization of
Rs.5,83,018/- from him towards compensation for damages as was allegedly
disbursed by them to the affected people. The said counterclaim was ultimately
dismissed for default.
[7] During trial, the plaintiff examined himself as witness along with
other two witnesses namely, Biplab Bhowmik and Bijan Dey. Examination-in-
chief on affidavit of one witness namely, Hemant N. Upadhay was submitted
before the Trial Court from the side of defendants but he ultimately did not face
cross-examination. Several documents were proved by the plaintiff and on the
contrary, no documentary evidence was adduced by the defendants.
[8] The Trial Court observed that as per evidence, the total cost of
construction of bridge/bypass at Bishalgarh including dismantling thereof, was
for Rs.25,50,000/- and as per the terms of the agreement, for last phase of
payment of 20% of Rs.25,50,000/- was Rs.5,10,000/- which had to be released
upon completion of dismantling work and on collection of a certificate from the
concerned authority by the plaintiff, but Rs.17,75,000/- was hold back. The
Trial Court further observed that as per document under Exbt.12, first part of
dismantling work of Bishalgarh bypass was already completed by the plaintiff
and the second part of dismantling work was going on, and as per oral evidence
of the plaintiff and his witnesses, said dismantling work was completed by him.
But, the defendants, on the other hand, failed to controvert the same by
adducing any evidence. Thus, the Trial Court ultimately decreed the suit.
[9] Mr. A. Acharjee, learned counsel for defendants argued that the
work order was issued from Mumbai and the work site was at Bishalgarh and
therefore, the suit ought to have been filed either at Mumbai or at Bishalgarh.
He thus argued that the Trial Court had no jurisdiction to try the suit. Ld.
Counsel also referred to Clause 9 of the terms and condition as attached with
the work order(Exbt.1/B) as quoted below and argued that at all events the
plaintiff was responsible for proper maintenance of the bypasses.
"9. You shall be responsible for Maintenance of the Bypasses FOR
ONE SEASON upto the passage of the last Consignment/total of 28
Nos. Consignments shall be moving over these bypasses as per
Packing List which shall be provided by us to you with the LOI/Work
Order but can increase as per our requirements. In the event of any
Damage to the Bypasses for any reason whatsoever, with the
exception of reasons attributable to Nature or any Natural Calamity
such as Floods, you shall be solely responsible to repair them at
your Cost at the earliest but not later than 7 to 10 days."
According to Mr. Acharjee, learned counsel, the plaintiff was,
therefore, responsible for the cost and damages occurred due to inundation of
flood water at Bishalgarh bypass. He also contended that despite requests to
dismantle the bypass, the plaintiff did not dismantle it till 06.05.2013 and if he
would have taken proper steps in time, such havoc could have been avoided and
therefore, in no way, he is entitled to get the decree. In this regard, he also
referred to another Email dated 09.05.2013 sent from the office of the
defendants to the plaintiff, whereby the plaintiff was informed that due to his
failure in diligent compliance of dismantling work had resulted in problems in
that area for which the plaintiff was solely responsible, and therefore, he was
asked to attend the meeting with the local administration, BHEL and NEEPCO
but he did not attend and he was throughout non-cooperating. Lastly, Mr.
Acharjee, learned counsel argued that the plaintiff could not be allowed to take
advantage of his own wrong, and therefore, the suit was liable to be dismissed.
[10] Mr. G.K. Nama, learned counsel for the plaintiff, Sri Niranjan
Debnath, on the other hand, argued that his client would not have any grievance
regarding the judgment of the Trial Court if the interest would be awarded to
the plaintiff from the date of cause of action. Ld. Counsel prayed for awarding
the interest on decreed amount from the date of cause of action till realization.
[11] So far the matter of territorial jurisdiction of the Trial Court, as
raised, is concerned, the suit was tried by the Court of the learned Civil Judge,
(Sr. Div.), Court No.2, West Tripura, Agartala and at the initial stage of trial,
said Court had territorial jurisdiction over Bishalgarh area till it was bifurcated
in the year 2018 after creation of a new judicial District for Sepahijala. Even
after such bifurcation, both parties participated in the trial before the Court at
Agartala without raising any objection. Therefore, the defendants had their
acquiescence in this regard and they cannot be allowed now to raise such an
issue at this appellate stage, more particularly, when there has been no resultant
failure of justice by conducting trial of that suit by the Trial Court. Section 21
of Code of Civil Procedure creates a bar on raising such issue in the Appellate
or Revisional Forum unless such objection was taken in the Court of first
instance at the earliest possible opportunity and unless there has been a
consequent failure of justice.
[12] Regarding the next point of argument of Mr. Acharjee that due to
flooding of the area by rain water, there was damage to the properties of
neighbouring people at Bishalgarh and the plaintiff was, therefore, liable to
bear the damages of the same. Clause 6 of "General/Special Conditions of the
Contract cum Terms & Conditions" (Exbt.1/B) bears relevance which is
extracted hereinbelow:
"6. Compensation payable to the Locals, if any, shall be to your
account, with the exception to the Bishalgarh Bypass which is being
dealt by us."
[13] As per above said clause, the obligation of payment of damages
lies with the defendants. As per one dismantling status report dated 12.05.2013
(Exbt.12), as sent by the plaintiff to the defendants, the first part of such
dismantling at Bishalgarh site was already completed and such dismantling
work of second part was running at that time. It is also mentioned in that letter
that first part of such work was only cutting of earth of 4-5 m. width at the
center of the bypasses and depth up to top of the Hume pipes and second part
consisted of the work of clearing of Hume pipes from river channel. The letter
further indicates that it was agreed between the parties that first part of the work
would be completed before arrival of rainy season and the second part would be
started after the rainy season came. The witnesses of the plaintiff, i.e. PW-2
and PW-3 also stated that the first part of dismantling work at Bishalgarh site
was completed within April, 2013 but in their cross-examination, even no
denial as to abovesaid assertions was made from the side of defendants. On the
other hand, examination-in-chief on affidavit of one witness namely, Sri
Hemant N. Upadhay was submitted before the Trial Court from the side of
defendants but he did not appear in the witness dock to face pertinent questions
in cross-examination and no document was also proved as evidence to support
their defence story including their claim that the dismantling work was
ultimately done by engaging another contractor. Adverse inference under
Section 114(g) of the Evidence Act, 1972 is, therefore, drawn against the
defendants.
[14] Situated thus, no infirmity is found in the judgment of Trial Court
by granting a money decree of Rs.17,75,000/- in favour of the plaintiff along
with 10% interest per annum thereupon. However, admittedly, the dispute was
regarding a contractual work of commercial nature where the plaintiff had
invested his money and due to the blockade of the same, he suffered
financially. Therefore, it would be just and proper if the Trial Court would
grant interest from the date of cause of action and at the latest when the demand
notice was sent by plaintiff on 17.07.2013 through his advocate. In view of the
above, the impugned judgment and decree are liable to be modified only to the
extent that the plaintiff will be entitled to interest @10% per annum on
Rs.17,75,000/- from 17.07.2013 till realization.
As a result, the appeal bearing No.RFA 09 of 2023 is hereby
dismissed being devoid of merit and RFA No.12 of 2023 is hereby allowed. It
is held that plaintiff Sri Niranjan Debnath is entitled to get Rs.17,75,000/- from
the defendants along with 10% simple interest per annum thereupon computing
from the date 17.07.2013 till payment or realization.
Appeals are accordingly disposed of with cost in favour of plaintiff
Sri Niranjan Debnath in both the appeals.
Registry is to prepare decree accordingly and to send down the
LCR with a copy of this judgment and decree.
Pending application(s), if any, shall also stand disposed of.
(S.D. PURKAYASTHA), J (APARESH KUMAR SINGH), CJ
Rudradeep RUDRADEEP BANERJEE Digitally signed by RUDRADEEP BANERJEE
Date: 2024.04.02 16:24:33 +05'30'
