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FA/175/2010 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 175 of 2010
With
CIVIL
APPLICATION No. 1026 of 2010
In
FIRST APPEAL No. 175 of
2010
=========================================================
ABHEL
MERUBHAI KATHI - Appellant(s)
Versus
FOOD
CORPORATION OF INDIA (A GOVT. OF INDIA UNDERTAKING) - Defendant(s)
=========================================================
Appearance
:
MR
VIJAY N RAVAL for
Appellant(s) : 1,
MR JAL SOLI UNWALA for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 12/05/2010
ORAL ORDER
The
applicant of captioned Civil Application (for stay) No.1026 of 2010,
who is the appellant in First Appeal No.175 of 2010, has preferred
this application seeking an order staying the operation and execution
of the judgment and decree dated 22nd
September, 2009 passed by the 2nd
Additional Senior Civil Judge, Surendranagar in Special Civil Suit
No.6 of 2000 whereby the learned trial court has directed present
appellant (original defendant) to pay a sum of Rs.7,40,336.97 to
present opponent (original plaintiff) with interest at the rate of
6%. The above mentioned First Appeal arises from the said judgment
and decree.
So
as to consider the prayer made in the application, it is necessary
and appropriate to take into account certain factual aspects, which
gave rise to the suit proceedings and thereby to present Appeal and
this Civil Application.
The
opponent herein-Food Corporation of India [hereinafter referred to as
FCI ], had after following procedure of inviting and evaluation
of tenders, awarded a contract viz. handling and transport
contract to present applicant.
As
per the case of present opponent-FCI i.e. the original plaintiff, the
appellant (contractor, and original opponent) abandoned the contract
without completing the execution of the contract work and thereby
committed breach of the contract awarded to it.
Hence,
on the ground that the present appellant had committed breach of the
terms of the contract, the opponent herein terminated the contract by
its communication dated
18th
March, 1997.
After
terminating the contract, the opponent-FCI claimed damages from the
appellant contractor which, as per its claim, it had suffered on
account of the acts of omission viz. abandoning the contract, by the
appellant contractor.
Since
the applicant herein-failed to respond to the demand notice, the
opponent-FCI filed the aforesaid Special Civil Suit No.6 of 2000.
The
opponent-FCI quantified its damages at Rs.11,18,598.92/- but claimed
decree for a sum of Rs.7,40,336.97 after giving credit of
Rs.3,78,261.95, which was available in its hands in form of security
deposit.
After
hearing the opponent and upon considering the material available on
record, the learned trial Court passed the judgment and decree dated
22.9.2009 whereby the court partly allowed the suit in favour of the
plaintiff FCI-present opponent and directed the opponent i.e. present
appellant to pay Rs.7,40,336.97 ps with interest at the rate of 6%
from the date of the presentation of the suit.
The
appellant is aggrieved by the judgment and decree. Hence, the appeal.
Mr.
Pandya, learned advocate, has appeared for Mr. V.N. Raval, learned
advocate for the appellant and Mr. Jal Soli Unwala, learned advocate
has appeared for the respondent FCI.
Mr.
Pandya, learned advocate for the appellant has raised diverse
contentions against the impugned judgment and decree. He has, inter
alia, submitted that though the opponent had claimed set off and
specifically pleaded set off in the written statement itself, the
learned trial court has not recorded any finding with regard to the
appellant’s plea of set off. He has also assailed the findings and
conclusions of the learned trial court holding the appellant in
default in making the due and payable payment and in directing the
appellant to pay the sum of Rs.7,40,336.97 ps. While Mr. Pandya,
learned advocate urged other contentions e.g. that the learned trial
court has taken into consideration such documents which were not duly
proved by the plaintiff and/or that the learned trial court has based
the conclusions on material, which cannot be construed as evidence in
the eye of law and that the learned trial Court has failed to take
into account the grounds urged by the appellant-opponent in its
defence, he has, mainly and essentially assailed the judgment on the
ground that though plea of set off was raised, it has been completely
disregarded.
Mr.
Unwala, learned advocate for the opponent has resisted the suit
raising various objections e.g. it is not open to the appellant to
raise contentions with regard to set off and the same has rightly not
been considered by the learned trial court inasmuch as the appellant
i.e. original opponent had not paid court fees qua the plea of set
off and that therefore, the learned trial court was not obliged to
consider the said plea. He has further submitted that for the
aforesaid reasons as well as for the reason that the plea was not
pressed in service even any issue with regard to the plea of set off
was not raised until the final decree came to be passed. This aspect
of the matter gets substantiated by the fact that even in such
situation the opponent i.e. present appellant had never raised any
objection on the ground that any issue was not framed, and that
therefore, at this stage, now it is not permissible to the appellant
to assail the judgment on the said ground. As regards, the contention
with reference to documents and its proof is concerned, the learned
advocate Mr. Unwala has referred to the evidence of the witness,
wherein, reference pertaining to the documents in question has been
specifically made. He has also referred to the oral evidence
including cross examination in support of his submission that the
documents were duly placed on record and were referred to in the oral
evidence and not only the documents but the contents including the
signature/s and other related aspects have been duly proved before
the learned trial court and any error in relying on the said
documents has not been committed by the court.
Having
regard to the rival contentions, the appeal requires to be
considered. Earlier by order dated 19th March, 2010, the
Records & Proceedings was called for. Considering the aforesaid
aspects, ADMIT.
In
view of the facts and circumstances of the case and considering the
request of the appellant, the appeal will be listed for final hearing
in the week beginning from 30th August, 2010.
ORDER
IN CIVIL APPLICATION.
In
view of the aspects pertaining to the appeal mentioned in the order
passed in the appeal today, so far as the prayer for interim relief
is concerned, it deserves to be noted that the appellant herein has
preferred the appeal against the judgment and decree dated 22nd
September, 2009 which requires the appellant to pay a sum of
Rs.7,40,336.97 ps. along with interest at the rate of 6% from the
date of the presentation of the suit. Differently put, the impugned
judgment and decree is a money decree. Hence, any unconditional
interim relief cannot be granted. It would not be out of place to
take into account the fact that the suit was made on the ground that
the opponent i.e. present appellant had abandoned the contract
without executing the contract work which resulted into damages. The
appellant appears to have given some explanation with regard to his
conduct, however, there is no denial of the fact that the contract
work was abandoned. While considering the prayer for interim relief,
the said factual aspect and the appellant’s conduct, interwoven in
the impugned judgment, cannot be overlooked, besides the fact that in
view of the provisions contained under Order 41 Rule 1(3) and 5 as
well as 5(5) and also in view of the well settled legal position, a
money decree ought not be stayed without requiring the judgment
debtor to deposit the amount. Hence, by way of interim relief, only
the execution of the judgment and decree impugned in the accompanying
appeal is stayed on condition that the appellant shall deposit the
entire awarded amount along with interest, before the learned trial
court on or before 18th June, 2010.
The
civil application is partly allowed and is accordingly disposed of.
[K.M.Thaker,
J.]
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