- (1.) THE appellant -defendant (hereinafter 'the defendant -Railway) has filed this first appeal under Section 96 CPC against the judgment and decree dated 11.12.1993, passed by the Additional District and Sessions Judge No.3, Kota in Civil Suit No.43/1990 whereby the respondent -plaintiff's (hereinafter 'the plaintiff') money suit for Rs.1,20,369.74/ - has been decreed.
(2.) THE facts of the case are the plaintiff on 15.10.1985 filed a suit against the defendant -Railway for recovery of money due and outstanding for the execution of contract No.49 entered into between the parties to the suit on 22.11.1979 whereunder the plaintiff was required to and had made the contracted construction. It was submitted by the plaintiff that he had earlier entered into a contract No.13 with the defendant -Railway on or about 21.11.1974 for supply of earth for a railway track being laid by the defendant -Railway. It was submitted that a dispute with regard to contract No.13 dated 21.11.1974 had arisen between the parties whereunder in terms of the provisions of the contract an Arbitrator was appointed and reference of the dispute between the parties made to him. It was submitted that the plaintiff filed his claim before the Arbitrator and the defendant -Railway while opposing the claim also laid their counter claim. At the conclusion of the arbitration, the Arbitrator vide his award dated 18.02.1983 awarded a sum of Rs.1,14,979/ - as due and payable by the defendant -Railway to the plaintiff in respect of contract No.13 dated 21.11.1974. It was submitted that in respect of contract No.49 duly executed between the parties on 22.11.1979, no dispute of any nature arose between the plaintiff and the defendant -Railway. In fact the contract was duly executed and in 1983 even monies retained by the defendant -Railway as security released on satisfaction of performance. Yet in respect of running two bills qua contract No.49 dated 22.11.1979, aggregating to Rs.94,049.74/ -, payment was not made for the purported reason of the defendant -Railway seeking to allegedly adjust the said amount against the claim of outstandings dues from the plaintiff under contract No.13 dated 21.11.1974. It was submitted that the amount retained unlawfully by the defendant -Railway pertaining to the work executed under contract No.49 dated 22.11.1979 between the parties was wholly illegal and arbitrary and unjustified. The sum of Rs.94,049.74 along with interest @ 12% from the date the amount become due till the date of the filing of the suit computed as Rs.26,320/ -, aggregating to Rs.1,20,369.74/ - was claimed. It was prayed that the money suit be decreed as prayed for along with pendente lite and future interest. On service of notice on the defendant -Railway, a written statement of denial was filed. The case of the defendant -Railway was that the plaintiff was in breach of his obligation under contract No.13 entered between the parties on 21.11.1974 and the sum of Rs.94,049.74/ - was adjusted in respect thereof from the amount payable under contract No.49 dated 22.11.1979 in the exercise of power under condition No.52 of the general condition of the contract as obtaining at the relevant time between the parties. It was submitted that the factum of retention of Rs.94,049.74/ - in respect of work executed under contract No.49 dated 22.11.1979 for reason of the plaintiff's liability under contract No.13 dated 21.11.1974 was conveyed to the Arbitrator in writing. It was submitted that while passing the award dated 18.02.1983 in respect of the disputes arising under contract No.13 dated 21.11.1974 between the parties, the said amount i.e. Rs.94,049.74/ - had been taken into reckoning and considered by the Arbitrator. It was submitted that issue of retention / adjustment of the amount of Rs.94,049.74/ - thus having been before the Arbitrator, dispute in regard thereto was subsumed in the arbitration award dated 18.02.1983 and could not be re -agitated as a fresh cause of action in the money suit laid by the plaintiff.
(3.) ON the pleadings of the parties, the learned trial court framed four issues which loosely translated in English are as under : (1) whether the plaintiff was entitled to the payment of Rs.94,049.74/ - under running bills of the contract No.49 dated 22.11.1979 as detailed in para 6 of the plaint. (2) whether on the due amount of Rs.94,049.74/ - claimed by the plaintiff in the suit before the trial court, interest @ 12% p.a. was payable effective 27.05.1983. (3) whether the defendant -Railways had lawfully and rightly adjusted the amount due under contract No.49 with the amount outstanding to the defendant owing to it having allegedly suffered loss after having to invoke the "risk and cost " clause in contract No.13 and what would be the effect of such adjustment on the suit. (4) whether in spite of the award of the Arbitrator (18.02.1983), the defendant's claim of adjustment of Rs.94,049.74/ - due under contract No.49 with alleged dues of contract No.13 dated 21.11.1974 was legal and valid. (4A) whether in view of award dated 18.02.1983 the money suit laid by the plaintiff is not maintainable. (5) relief. ;