- (1.) This civil first appeal preferred by appellant M/s. Kunney Singh Bhanwar Lal partnership firm is directed against the judgment and decree dated 15.10.1986 passed by learned Additional District Judge No.1, Jodhpur in Civil Original Suit No.99/1983, whereby the learned trial court has dismissed the suit for permanent injunction filed by the appellant-plaintiff.
(2.) The brief facts of the case are that the Executive Engineer, Jawai Canals Division Sumerpur invited tenders for construction of Head Work and Bund from Chain 0 to 59 of the Mithri Irrigation Project Part I Tehsil Bali, District Pali vide tender Notice No.9851-70 dated 08.10.1965. The tender of the appellant-plaintiff was accepted 10% above 'G' Schedule and intimation of this acceptance was conveyed to the appellant by the Executive Engineer, Jawai Canals Division Sumerpur vide letter dated 03.02.1966.
(3.) The appellant-plaintiff executed the work to the satisfaction of the defendant. The work was completed on 05.06.1969 and intimation of the same was sent to the Executive Engineer, Jawai Canals Division Sumerpur. From the running bills of the work a sum of Rs.80800/- was deducted. Final bill was paid on 31.03.1972, but at that time the amount of security, i.e. 80,800/- and another sum of Rs.24549.37 due for work done by the appellant was not paid. Half of the security amount was paid later on, but the remaining half of the security amount and the other amount due for the work done by the appellant was not paid, therefore, notices under Section 80 CPC were given to the defendant. The Executive Engineer, Jawai Canals Division Sumerpur sent a letter dated 03.10.1977 to the Chief Engineer, Irrigation, Jaipur to pay the remaining amount of security to the appellant. In spite of repeated notices, the aforesaid amount was not paid to the appellant-plaintiff. After more than 9 years of the completion of the work, the Executive Engineer, Jawai Canals Division Sumerpur vide letter dated 28.09.1978 asked the appellantplaintiff to deposit Rs.82393/- on the ground that the said sum was paid in excess for lead and lift of the material. The appellant-plaintiff gave a notice under Section 80 CPC to the defendant on 19.10.1978 and requested to desist from making any recovery of the said amount and when no reply was received from the defendant, the appellant-plaintiff filed a suit for permanent injunction to restrain the defendant from taking any proceedings for recovery of the said amount from the security amount of the Mithri work or from any other bill of the another work of the appellant-plaintiff.;