RSA No.3502 of 2007 (O&M) ( 1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 18.8.2009
(i) RSA No. 3502 of 2007.
Municipal Council, Yamunanagar and another
......Appellants
Versus
Virender Kumar .......Respondent
(ii) RSA No. 960 of 2009.
Municipal Council, Yamunanagar and another
……Appellants
Versus
Virender Kumar …….Respondent
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Sanjay S. Chauhan, Advocate, for the appellants.
Shri Anil Kshetarpal, Advocate, for the respondent.
HEMANT GUPTA, J. (Oral).
This order shall dispose of RSA Nos.3502 of 2007 and 960 of
2009 filed by the defendants aggrieved against the judgment and decree
whereby Civil Suit No. 645 of 1998 was partly decreed and Civil Suit No.
646 of 1998 for injunction restraining the defendant-appellants from
RSA No.3502 of 2007 (O&M) ( 2)
recovering a sum of Rs.1,50,132/- by virtue of notice dated 3.6.1998, was
decreed in its entirety.
The plaintiff-respondent was given contract for maintenance of
street lights of Civil Division, Yamnunagar for the period 1.6.1997 to
31.5.1998. As per the said contract, the plaintiff was to maintain 3080 tube-
lights, 404 sodium points and 98 mercury points. As per the defendants, a
sum of Rs.4,19,338/- was deducted on account of the fact that the plaintiff
has used aluminium chokes instead of copper chokes, which were to be
used in terms of the agreement between the parties.
The learned first Appellate Court has found that a notice was
given to the plaintiff to replace the aluminium chokes with copper chokes,
but in the notice no details of the points, which were not in working
condition or in respect of which the aluminium chokes were used, is
disclosed. In view of the said fact, it was found that without proof of
violation of the terms of the contract at the instance of the plaintiff, the
defendants cannot recover the aforesaid amount of Rs.4,19,338/-. It also
found that imposition of penalty of Rs.1,52,132/- is not justified as it
cannot be said that the plaintiff has failed to repair the damaged street light
points.
Learned counsel for the appellants has vehemently argued that
the plaintiff has violated the terms of the contract agreement. Therefore, the
claim of the plaintiff to recover the amount deducted on account of violation
of the terms and conditions of the contract, cannot be justified. Since the
plaintiff has violated the terms and conditions of the contract and has not
repaired the damaged light points, the defendant-appellants were justified
in imposing penalty as well.
RSA No.3502 of 2007 (O&M) ( 3)
The learned first Appellate Court has found that the burden of
proof that the plaintiff has violated the terms and conditions of the
agreement i.e., by using aluminium chokes instead of copper chokes and
non-repair of the damaged light points is on the defendants and that the
defendant-appellants have failed to discharge such burden.
In view of the said fact, both the Courts have returned a
concurrent finding of fact that the plaintiff is entitled to recover the amount
deducted at the instance of the defendants. Such findings are sought to be
disputed by re-appreciation of evidence. It could not be pointed out that any
evidence has been misread or not taken into consideration.
Consequently, I do not find any patent illegality or material
irregularity in the finding recorded or that the finding recorded gives rise to
any substantial question of law in the present second appeals.
Hence, the present appeals are dismissed.
(HEMANT GUPTA)
JUDGE
18.8.2009
ds