D.G.R.PATNAIK, J. - (1.) THE appellant Food Corporation of India has filed this appeal against the judgment dated 20.1.1998 and its corresponding decree dated 7.2.1998 passed by the learned Subordinate Judge, Chaibasa in Money Suit No. 9 of 1993 whereby the suit of the plaintiff/respondent was decreed in favour of the plaintiff respondent.
(2.) THE suit was filed by the plaintiff/respondent against the present appellant for realization of a sum of Rs. 2,73,476/ -together with interest pendente lite. The case of the plaintiff is that the plaintiff was engaged as a transport contractor for transportation of food grains from the Rail head to different godowns situated at Chakradharpur. The defendent No. 2, namely, the Food Corporation of India appellant represented by its Senior Regional Manager was the principal employer of the plaintiff for the purpose of the employees provident fund and other schemes. Prior to the allotment of the contract to the plaintiff, a tender was floated by the defendants for executing transportation work for the period from 1989 to 1991. The plaintiff being the lowest bidder, the work was allotted to him and he had deposited a sum of rupees fifty thousand as earnest money. Despite mentioning the distance between the rail head and various godowns in the tender notice, the actual distance was measured by a higher committee and the transportation charges were calculated on the basis of the actual distance covered. The plaintiff executed the contract work and submitted bills periodically for the job done and the defendants used to pay the bills after retaining 20 percent of the bill amount towards provident fund etc. However, the defendants withheld payment of the plaintiffs Bill Nos. 119 to 130 of Rs. 1,43,434.55 -p and further amount of Rs. 16,342.30 -p pertaining to other bills and also retained the plaintiffs earnest money/security deposit of rupees fifty thousand. The claim of the plaintiff is that the defendants have wrongly and without justification withheld hid amount. The plaintiff has claimed realization of the amount along with interest at the rate of 12% per annum accrued thereon from the date due and till final payment of the bills. The defendant/appellants resisted the claim of the plaintiff on the ground that the plaintiff was earlier awarded contract for the same work of transportation of food grains from the rail head to the same godowns and the plaintiff had submitted inflated bills by claiming charges for transportation for distances more than actually covered and in this manner, the plaintiff had received excess payment which was paid to the plaintiff by mistake. The specific plea of the defendants is that the amount of Rs. 2,05,734.74 -p was received by the plaintiff in excess of his dues for execution of the contract and the defendants were legally entitled to recover the amount, from the plaintiff by way of adjustment from the plaintiffs 16/5/20 pending 14 Page 3bills. 26
(3.) ON the basis of the rival pleadings, the learned Court below besides framing issues relating to the maintainability of the suit and the issue as to whether the plaintiff was entitled to recover the amount claimed, had also framed the following two issues, namely: (i) Whether the defendants are entitled to refuse payment to the plaintiff on the plea of excess payment in respect of an earlier contract? (ii) Has the defendants a right of adjustment under the law for recovery of the alleged excess payment? Issues No. (i) and (ii) as aforesaid, were decided by the learned Court below against the defendants. ;