Decided on July 10,2018

Karna Kumar Barman Appellant
State Of Assam And Ors, Represented By Secy To Govt Of Assam Respondents


Kalyan Rai Surana, J. - (1.) This appeal under Section 96 CPC is directed against the judgment and decree dated 28.01.2011, passed by the learned Civil Judge (Senior Division) No. 1, Kamrup, Guwahati in Money Suit No.43 of 2007, thereby dismissing the money suit filed by the appellant.
(2.) The appellant's case in brief is that he is a registered A.P.W.D. contractor. He was awarded with two contracts, being (1) A/R to U/M Barama Dhamdhama Tamulpur Road for 2002 to 2003 for collection and supply of sand gravel and river gravel at 2nd K.M to 6th K.M. including spreading vide work order No.EE/1190 dated 22.10.2003 at an approximate cost of Rs.1,91,041/-, and (2) A/R to U/M KBS Road for 2001-2002 (E/W by T/C from Ch. 8720.00 M to 8880.00M and collection and supply of sand gravel and river gravel with spreading), vide order No. EE/1320 dated 21.01.2000. Both the work orders were issued by the Executive Engineer, P.W.D., Nalbari Rural Road Division, Nalbari (respondent No.3).
(3.) The appellant executed two separate agreements in F-2 form in respect of the said two contract works. As per the condition of agreement, both the works were completed within the allowed time and the concerned Sectional Officer, APWD had recorded the measurement of the executed work done in the "measurement book" of the department. In course of time the appellant submitted two final bills for payment for the said two works, being (1) Final Bill No. FF/59B dated 10.05.2004 for Rs.1,90,662/-, and (2) Final Bill No. FF/22B dated 10.01.2003 for Rs.1,55,504/-. As the appellant did not receive his payment even after long lapse of time, as such, the appellant issued an advocate's notice dated 08.12.2006 under Section 80 CPC, demanding payment of the aforesaid two bills along with the interest, as follows (1) Rs.2,45,953.98 (being the principal sum of Rs.1,90,662.00 with interest at the rate of 12% p.a. amounting to Rs.55,291.98); and (2) Rs.2,45,696.32 (being the principal amount of Rs.1,55,504.00 with interest at the rate of 12% p.a. amounting to Rs.90,192.32). In reply to the said advocate's notice, the respondent No.3, by his letter No.5019 dated 06.01.2007, admitted the department's liability to pay the bill amounts to the appellant subject to availability of fund, and it was also stated that the interest along with cost of notice is not admissible as per clauses of the tender agreement. However, as the payment was not forthcoming, the appellant had instituted his suit on 19.06.2007 for recovery of the above referred amount, as well as for Rs.2,000/- towards the cost of notice under Section 80 CPC and for the cost of suit.;

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