Posted On by &filed under High Court, Madhya Pradesh High Court.


Madhya Pradesh High Court
Ajay Johari vs Municipal Council on 15 September, 2000
Equivalent citations: I (2005) BC 605
Author: A Mishra
Bench: A Mishra


JUDGMENT

Arun Mishra, J.

1. This second appeal has been filed by the plaintiff aggrieved by the reversal of the judgment and decree passed by the Trial Court.

2. The suit was filed by the plaintiff for recovery of an amount of Rs. 11,000/- along with interest against the Municipal Council, Shivpuri on the allegation that the plaintiff” was one of the tenderers to the NIT which was issued for construction of ‘V shape drainage in the Municipal Council, Shivpuri at Raghvendra Nagar Colony. The tender of the plaintiff was accepted on 25.6.1991. Thereafter an agreement was executed which is Ex. D/3, on record, on 24.9.1991. Even after the execution of the agreement the defendant did not issue work order. The plaintiff continuously waited for the work order and without granting opportunity of hearing the security amount of the plaintiff of Rs. 1,600/- was deducted and from the final bill of another contract of Ward No. 10, Harijan Basti, Rs. 6,679/- was illegally deducted. The plaintiff came to know that the contract has been given to one of the employees of the Municipal Council, Shivpuri namely, Mantoo Khan in order to give him illegal benefit out of the contract. Thus sum of Rs. 8,279/- has been illegally deducted by the respondent. Notice was served. Suit was filed for recovery of the amount of Rs. 11,000/- along with interest.

3. Municipal Council in the written statement denied the plaint allegations and contended that in spite of the notice the plaintiff did not execute the agreement and on 25.9.1991 the work order was issued but the plaintiff did not execute the work, hence the earnest money was forfeited and the amount was deducted. The order of Administrator which was passed by Administrator on 27.1.1992. Recovery made was tried to be justified on the ground of delay in execution of work and as such the Council has suffered the loss as the contract was given on 25% above CSR from 12.5.1992. However, it was not denied that before forefeiting the security and cancelling the contract notice was not issued to the plaintiff.

4. Trial Court decreed the suit in part and ordered refund to the extent of forfeiture of the security amount of Rs. 1,600/- and amount of Rs. 6,679/- deducted from the final bill of another contract, along with interest at the rate of 6% per annum till realisation. Trial Court came to the conclusion that the work order was not issued and before forfeiting the amount and deducting an amount of Rs. 6,679/-, no notice was issued to the plaintiff, The recovery made was illegal as work order itself was not issued, hence, the plaintiff could not be faulted for not doing the work. Municipal Council filed an appeal before the learned First Appellate Court which reversed the finding of the Trial Court. In para 13, the Appellate Court came to the conclusion that on the basis of document Exs. P5 and P6 that the work orders were issued to the applicant, hence the plaintiff was responsible for not carrying on the work in spite of issuing of work orders as contained in notice Ex. P/5 and Ex. P/6. It also came to the finding that the plaintiff delayed in execution of the agreement and any how or some how he wanted not to carry out the work assigned to him.

5. Aggrieved by the judgment and decree of reversal passed by the First Appellate Court this Second Appeal has been filed before this Court which was admitted on 21.6.99 on the following substantial questions of law;

“(1) Whether after recording the finding that plaintiff has executed the agreement with defendant, the lower Appellate Court was justified in reversing the judgment and decree passed by the Trial Court?

(2) Whether in the absence of selling aside the finding of Trial Court that the work order was not issued to plaintiff the lower appellate judgment and decree passed by the Trial Court?”

6. The substantial question of Law No. 2 requires reframing hence it is refrained to the following effect-

“whether the finding of the learned Appellate Court that the work order was issued to the plaintiff is perverse”. Another substantial question of law is also framed which arises for consideration that “Whether due process of law has been adopted by the Municipal Counsel for cancelling the contract”.

7. Mr. Vivek Jain, learned Counsel for the appellant has submitted that it is a case where the Appellate Court’s finding with respect to issuance of work order is totally perverse. It has considered documents P/5 and P/6 so as to record a finding that the work order has been issued. These documents are not related to the work under the contract in question. Document Ex. P/5 relates to construction of Latrine and Bathroom in B.J.P. Office at Shivpuri, Ex. P/6 relates to construction of drainage in Ward No. 15, Krishnapuram, whereas the agreement in question was for the work to construct ‘V shape drainage in Raghvendra Nagar Colony at Shivpuri. It is his further submission that no notice was issued, before cancellation of agreement forfeiting security and deducting other amount. No order of cancellation of agreement was ever issued to him and has urged that even security deposit was forfeited and amount was deducted from final bill of another contract without hearing and violation of principle of natural justice.

8. Learned Counsel for the respondent Mr. Kamal Kishore submitted that purely findings of fact are recorded by the Court below and he has placed reliance on a decision of Apex Court in case of Maniar Ismail Sab and Ors. v. Manikar Fakruddin and Ors., AIR 1989 SC 1509 wherein it has been held that in concurrent finding of fact no interference by High Court is permissible. He has placed reliance on a decision of this Court in case of Rajendra Kumar v. Narendra Kumar, 1995(2) MPWN SN 110 wherein it has been held that fresh appraisal of evidence is not permissible in second appeal. His further submission is that if the Appellate Court’s finding is not perverse, no interference can be made even if the finding is erroneous. He placed reliance on a decision of this Court in case of Gangaram v. Bhagirathi, 1997(1) MPWN SN 23. He has also relied on a decision of the Apex Court in case of O.T.M.O.M. Meyyappa Chettiar v. O.T.M.S.M. Kesi Vishwanathan, 1994(1) MPWN SN 94 in which it has been laid down that the High Court is not entitled to reappraise evidence by merely saying that findings recorded by Court below are perverse.

9. There is no dispute with the preposition that the finding of fact recorded by the First Appellate Court is normally final and binding, but at the same time, it is also settled law that if the findings are perverse and based on misreading of documents and are such which cannot be reasonably arrived at, interference in the appeal can be made. It is also settled law that the findings of the Trial Court if it has considered the evidence in details are entitled to great weight as held in case of Madhusudan Das v. Smt. Narayani Bai and Ors., AIR 1983 SC 114.

10. From the judgment of the First Appellate Court it appears that it has reversed the finding of the Trial Court with respect to issuance of the work orders relying on the documents Exs. P/5 and P/6 which are not related to the contract in question. Document Ex. P/5 relates to construction of Latrine and Bathroom in B.J.P. Office at Shivpuri, and document Ex. P/6 relates to construction of drainage in Ward No. 15, Krishnapuram, whereas the contract in question was for the work to construct ‘V shape drainage in Raghuvendra Nagar Colony at Shivpuri, with respect to which work order was required to be issued. Inspite of categorical plea taken by the plaintiff in the plaint as well as deposed to by him, no such work order has been placed on record by the Municipal Council. Thus, the Trial Court’s finding that no such work order was issued was based on correct appreciation of evidence on record. The finding recorded by Court below in perverse and based on misreading of document and is unsustainable in law in view of glaring flaws. The finding recorded is open to interference in the light of decision of Apex Court in the case of State of Rajasthan v. Harphool Singh, V (2000) SLT 151=(2000) 5 SCC 652.

11. It is also apparent that there is categorical plea and statement that no notice before forfeiting the security and cancellation of agreement was issued to the plaintiff not even the cancellation order of the agreement was despatched to the plaintiff nor it has been placed on record so as to justify what was the reason for the Municipal Council to pass such an order. Thus the order of forfeiture of security and cancellation is grossely violative of the principles of natural justice and unsustainable.

12. In the absence of issuance of work order the plaintiff could not have started the work at site and as such the amount of security deposit and amount of Rs. 6,679/- from final bill of another contract could not be deducted by the Municipal Council. The deduction made and forfeiture of the security deposit was wholly illegal and bad in law. Learned Appellate Court has also relied on fact that the execution of agreement was delayed. Once agreement was executed between the parties, it can be cancelled in valid manner after issuing the notice, but no such notice has been issued.

13. Thus, the judgment and decree passed by the First Appellate Court are unsustainable and is set aside. The judgment and decree passed by the Trial Court is restored. Parties are directed to bear their own costs.


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