STATE OF HARYANA Vs. YUSUF ALIAS YUSUF KHAN

JUDGEMENT

(1.) THIS judgment shall dispose of RSA Nos. 410 and 418 of 1984, as both the appeals have arisen against the judgment and decree dated 29.10.1983 passed by the District Judge, Gurgaon, whereby the appeal filed by the plaintiff was partly allowed and partly dismissed.

(2.) YUSUF alias Yusuf Khan had filed a suit of declaration to the effect that he was an approved contractor of PWD Public Health Department of Haryana and that a tender with an approximate cost of Rs. 40,000/- was invited on 11.11.1980 by the Executive Engineer, Public Health, Division No. 2, Gurgaon and that the plaintiff was one of the tenderers. It was alleged that the representatives of the plaintiff had filled by mistake the rate of 9% above the C.S.R. even though he wanted to fill 90% above the C.S.R. rate. It was alleged that the department approved the tender @ 9% above the C.S.R. and the approval was conveyed to the plaintiff in the middle of December, and when the plaintiff received the approval, he came to know about the mistake. It was alleged that after 4-5 days, he received a notice from the Executive Engineer for starting the work vide letter dated 16.12.1980 and on receiving the notice, he submitted representation to the department for correcting the rate as 90% above CSR instead of 9%. It was alleged that in his second representation, which was received by the department on 1.1.1981, the plaintiff had made it clear that if the rate is not corrected then the plaintiff was not willing to start the work. It was alleged that the department vide letter dated 6.1.1981, rejected the claim of the plaintiff and the department also imposed penalty on the plaintiff vide letter dated 8.2.1981, imposing a penalty of Rs. 4000/- as compensation, forfeiture of the earnest money of Rs. 800/- and removal of the name of the plaintiff from the approved list of contractors. It was alleged that these penalties were imposed upon the plaintiff in the absence of any legal contract entered into between the parties, inasmuch as the plaintiff had never signed the contract and the Executive English had imposed pecuniary loss on the plaintiff as the plaintiff had not been allowed to submit fresh tender for new works. It was alleged that the plaintiff had filed an appeal to the Superintending Engineer, PWD, Public Health, Gurgaon, but the Superintending Engineer affirmed the imposition of penalty by way of compensation of Rs. 4000/- vide letter dated 12.8.1981 without mentioning anything about the other penalties. It was alleged that the penalties imposed by the Executive Engineer and the Superintending Engineer were illegal and void and were liable to be set aside.

(3.) AFTER hearing both sides and after perusing the record, the learned Trial Court dismissed the suit of the plaintiff holding that the plaintiff having signed each and every page of the rate tender and contract for work, which was accepted by the Executive Engineer, the contract was complete and the penalties imposed upon the plaintiff were legal and according to the terms and conditions of the tender agreement. Resultantly, the suit was dismissed. However, the appeal filed by the plaintiff was partly accepted by the District Judge. The findings recorded by the Trial Court on Issue No. 1 were set aside and it was held that the imposition of penalties on the plaintiffs were unauthorised and the order imposing these penalties was void and illegal snd not binding upon the plaintiff. Resultantly, the suit was decreed and the declaration sought for by the plaintiff was granted. However, the declaration was refused that the plaintiff will be deemed to be an approved Government Contractor. Aggrieved against the judgment and decree passed by the District Judge, the present Regular Second Appeals have been filed in this Court. RSA No. 410 of 1984 has been filed by the defendant State of Haryana challenging the findings of the learned District Judge on Issue No. 1 whereas RSA No. 418 of 1984 has been filed by the plaintiff, challenging the judgment and decree of the learned District Judge, whereby part of the claim of the plaintiff regarding approved Government contractor had been declined.