- (1.) THIS appeal is at the instance of the plaintiff in a suit for recovery of money and is directed against the judgment and decree dated 15th September, 1998 passed by the Civil Judge (Senior Division), Jalpaiguri in Money Suit No. 10 of 1993 thereby dismissing the suit filed by the appellant.
(2.) THE appellant before us filed a suit being Money Suit No. 10 of 1993 in the court of Assistant District Judge, Jalpaiguri, thereby praying for a decree of rs. 3,80,585. 73p. with interest and the case made out by the appellant may be summed up thus: (a) The plaintiff was an enlisted Government Contractor under the directorate of Irrigation and Water-works of the Government of West Bengal and had executed and completed several works in the past with the full satisfaction of the Department, its Officers and Engineers. (b) The plaintiff submitted tenders in response to notice inviting tender No. 22 of 1989-90 for Serial Nos. 15 and 16 on 11. 4. 90. The works were intended for the protection of left bank of the river Leesh near Bagrakote area of b. G. Railway Bridge in P. S. Mal, District"jalpaiguri, from Ch. OM to 206 m against Serial No. 15 and from Ch. 206 to 412 M against Serial No. 16. The estimated amount against both the Serial Nos. 15 and 16 was rs. 1,24,088/-each. The plaintiff submitted tender at 2. 29% and 2. 21% below the schedule rate for work of Serial Nos. 15 and 16 respectively. (c) The defendant no. 2, on behalf of the Government of West Bengal, accepted the plaintiff"s tenders and issued work-orders vide Memo No. 949 dated 15th May, 1990 for Serial No. 15, the tendered amount being rs. 1,21,246/- and Memo No. 950 dated 15th May, 1990 for Serial No. 16, the tendered amount being Rs. 1,21,222/- intimating that the time for completion was one month and a half to be reckoned from 18th May, 1990. (d) The plaintiff, without wasting anytime after the receipt of the work-orders, commenced the respective works on 19th May, 1990 as per alignment given by the Executive Engineer, Jalpaiguri Irrigation Division and the sub-Divisional Officer, Karatowa Talma Irrigation Sub-Division, P. O. Mal, district"jalpaiguri. There were other working agencies at the site. The plaintiff and those contractors tried to convince the said two Officers of the Government about wrong alignment pointing out that the alignment given on that day was almost near the middle portion of the river but the concerned Officers paid no heed to the observations of the plaintiff and the other contractors. (e) The earth of the site was hard and splint and hence, the work had to be executed with the help of Poklin machine, which was within the knowledge of the Department. The work in question was executed to a considerable extent as per the instruction and at the same time, from time to time, directions were given by the concerned Engineers. On 10th June, 1990, the defendant no. 2 visited the site and intimated the plaintiff that the alignment so given by the Executive Engineer and the S. D. O. was wrong and incorrect and that the alignment would be changed. Then, on 14th June, 1990, the concerned Executive Engineer confirmed that alignment given by him was wrong and that new alignment would be given soon. At that stage, the plaintiff requested him to take measurement of the work done by him till then. The plaintiff was requested on the same date to ask for measurement in writing through proper channel and accordingly, the plaintiff submitted a letter on 14th June, 1990 stating facts mentioned above and prayed for measurement of the work already done. (f) On 16th June, 1990, due to devastating flood of Leesh river, the work done up to that date as well as the stacked boulder were washed away and such facts were well within the knowledge of the Department; but as in spite of the assurance and written request, the measurement of the said work was not taken by the Department, the plaintiff submitted another letter on 25th June, 1990 stating all those facts and prayed for payment for the works already done. The plaintiff then submitted another letter on 28th June, 1990 correcting some defect in the earlier letter dated 25th june, 1990 to the Executive Engineer through proper channel claiming a sum of Rs. 2,25,824/- and asking for new alignment. (g) The Department did not give new alignment till March, 1991, nevertheless, it was interesting to note that the Department handed over memo No. 71 dated 5th February, 1991 of the Office of the S. D. O. to the plaintiff asking him to start and expedite the work for quick progress and on 12th March, 1991, the Executive Engineer handed over Memo Nos. 334 and 335 both dated 12th March, 1991 to the plaintiff and threatened to impose a penal clause on the ground of alleged violation of terms of agreement inasmuch as the Sub-Divisional Officers by Memos No. 134 dated 12. 3. 91 confirmed new alignment was given on that day i. e. 12. 3. 91. It was therefore clear that Memo Nos. 71, 331 and 335, as referred to above, have got no basis at all and the plaintiff kept the same on record by letter dated 17. 3. 91 addressed to the Executive Engineer through proper channel. (h) The plaintiff commenced the work as per new alignment given on 12. 3. 91 and measurement was taken only with respect to some work out of that work done then. As the plaintiff"s claim dated 28. 6. 90 was not attended to, the plaintiff had to submit a letter on 5. 6. 91 urging for payment of dues of Bill dated 28. 6. 90 as well as on account bill on the basis of measurement taken on 29. 5. 91. (i) That on 15. 6. 91, the defendant no. 2 visited the site and ordered stay of the execution of the work with respect to Ch. OM to 206m on the ground of further change of alignment of the work and the S. D. O. subsequently confirmed the same by Memo No. 424 dated 20. 6. 91. The plaintiff, however, was allowed to complete the work with respect to Ch. 206 to 412 m and the payment therefor has long been paid to the plaintiff. It may be recalled that a sum of Rs. 6,000/- was paid to the plaintiff by way of running account bill with respect to work done and measurement taken concerning Ch. OM to 206 M. (j) The plaintiff was assured that on giving further new alignment for Ch. OM to 206 M, he was required to execute the work and hence, the plaintiff, in usual course, did not remove the establishment set up by him at the site as well as for guarding the work already done and stacked boulder in respect of Serial No. 15 as final measurement was not taken with respect to work done in spite of plaintiff"s letter dated 22. 7. 91. However, only in the middle of 1992, the S. D. O. informed the plaintiff verbally that the further work of Serial No. 15 would not be done and then only the plaintiff prayed for release of the security money. (k) The defendant did not pay the dues as well as did not take any measurement of the said work and hence, on 7. 8. 92, the plaintiff sent letter through proper channel addressed to the Executive Engineer stating all the facts. The plaintiff in the said letter raised bill amounting to rs. 1,35,625/-in respect of work done against Serial No. 15 after further new alignment was given on 12. 4. 91 and adjustment of on account payment of Rs. 6,000/ -. The plaintiff specifically stated in the said letter that if the said sum was not paid within 30 days from the date of receipt of that letter, the defendants and for that matter, the Department should be bound and liable to pay interest @ 12% p. a. on the said amount from 1. 7. 91. (l) By the said letter, the plaintiff requested the Executive Engineer to arrange for payment of Rs. 1,24,824/- and 12% interest p. a. thereon from 28. 6. 90 and also for payment of Rs. 1,35,625/- within one month but the defendants did not pay the said amount. The plaintiff was entitled to get the said amount with interest @ 12% p. a. from the defendants and the defendants were bound and liable to pay the same to the plaintiff. (m) The defendants failed and neglected to pay the said amount legally entitled to the plaintiff although the defendants are bound and liable under the law to pay the said amount and the interest thereon @ 18% p. a. In spite of letter dated 7. 8. 92 and oral request made on several occasions to the respective Engineers of the Department, the defendants and their engineers had not paid any heed whatsoever. (n) The plaintiff in the circumstances had to issue notice under Section 80 c. P. Code on 3. 5. 93 to the defendants under registered cover with A/d through his lawyer Sri Hiren Guha Thakurta, Jalpaiguri and the defendants has duly received the said notice. In spite of the said notice, the defendants had not paid the said amount with the interest thereon to the plaintiff and consequently, were liable legally to pay interest @ 18% p. a. from 28. 6. 90 on Rs. 1,24,824/- as well as from 1. 7. 91 on rs. 1,35,625/ -. Thus, the plaintiff was entitled to the sum of rs. 2,60,449/-as claimed in plaintiff"s letter dated 7. 8. 92 as well as rs. 48,825/- being interest @ 12% p. a. on Rs. 1,35,625/- from 1. 7. 91 to 30. 6. 93 and Rs. 67,405/- being interest @18% p. a. on Rs. 1,24,824/- from 28. 6. 90 to 30. 6. 93 and Rs. 3,906. 73p. being interest @ 18% p. a. on rs. 2,60,449/-from 1. 7. 93 to 31. 7. 93 and thus, the total claim with interest as aforesaid came to Rs. 3,80,585. 73p. The plaintiff was also entitled to Rs. 800/- from the defendants being costs of notice as per provision of Order 20a Rule 1, C. P. Code. The suit was contested by the respondent by filing written statement as well as additional written statement and the defence of the respondent may be summed up thus: (1) The names of the works as mentioned in the advertisement were as follows: JUDGEMENT_177_TLCAL0_2008Html1.htm (2) The defendants denied that the plaintiff commenced work on 19. 5. 90 or that alignment was given wrongly near the middle of the river or that the plaintiff and other contractors complained about the wrong alignment or that the Officers did not listen to their objections. (3) The defendants denied that the earth at the site of work was hard or that the plaintiff resorted to mechanical excavation by use of Pokliein machine. There was no provision for mechanical excavation in the schedule of works and if the plaintiff resorted to such excavation, it was done by him at his own risk and responsibility and the department had no liability to pay any extra rate for such work. (4) The defendants further denied that the work was executed by the plaintiff to a considerable extent as per directions of the concerned Officers. It is further denied that on 10. 6. 90, the defendant no. 2 visited the site and he told the plaintiff that the alignment given by the Executive Engineer and the S. D. O. was wrong and that the alignment would be changed. (5) The defendants denied that on 14. 6. 90 the Executive Engineer confirmed that the alignment earlier given was wrong and that the new alignment would be given soon or that the plaintiff requested him to take measurement of the work done till then. It is further denied that the plaintiff was requested to apply for measurement in writing through proper channel or that the plaintiff did so. (6) The defendants denied that on 16. 6. 90 due to flood of Leesh River the works done by the plaintiff as well as boulders stacked by him were washed away or that the department knew the said fact. The defendants further denied that the plaintiff applied in writing praying for measurement or that the department gave any assurance. The defendants further denied that the plaintiff submitted any letter praying for payment or at all. It was also denied that the plaintiff wrote any letter on 25. 6. 90 or 28. 6. 90 claiming Rs. 2, 25,824/- or that he asked for new alignment. (7) From the available record, it appeared that even the plaintiff failed to achieve progress in work up to 6. 4. 91 and that even on 3. 5. 91, the plaintiff did not start the work at all. The defendants denied that the plaintiff made any claim on 28. 6. 90 or that he submitted any bill on that date or that in prayed for any payment. (8) The 1/r. A. bill for the work amounting to Rs. 5569. 00 was prepared and submitted by the S. D. O. /k. T. I. Sub-Division on 20. 6. 91 on the basis of measurement recorded on 29. 5. 91 in page no. 1 and 2 of M. B. No. 2086. The payment of the bill was cleared through Vr. No. 3 dated 10. 7. 91 from the office. S. D. O. /k. T. I. Sub-Division through his letter No. 424 dated 20. 6. 91 had already intimated the contractor that as per instruction of (Chairman, n. B. F. C. C.) during his visit at site on 15. 6. 91 the works would remain stopped until further notice. As such, any further execution of the work was totally abandoned. (9) The defendants denied that the department gave any assurance to plaintiff that the new alignment for Chain "o" metre to 260 M would be given or that the plaintiff would have to execute the said work or that on such assurance, the plaintiff did not remove his establishment from the site of work or that he kept guard for the work done or stacked boulders or that the final measurement was not taken as alleged or that the plaintiff submitted any letter on 22. 7. 91. (10) The defendants denied that the plaintiff sent any letter to the Executive engineer on 7. 8. 1992 claiming Rs. 1,35,625/- as alleged. The defendants further denied that the plaintiff was entitled to Rs. 1,35,625/- or any sum of money or that the defendants were liable to pay interest @ 18% or at all. They denied that the plaintiff sent any letter on 7. 8. 1992 or he made oral request. They also disputed the legality of the alleged notice under Section 80 of the Code of Civil Procedure or their liability to pay a sum of rs. 3,80,585. 73p. with interest @ 18% per annum as claimed.
(3.) AT the time of hearing of the suit, three witnesses including the plaintiff deposed in support of the claim while two Officers of the defendants gave evidence in opposing the claim of the plaintiff. As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein was pleased to dismiss the suit. Being dissatisfied, the plaintiff has come up with the present first appeal.;