Punjab-Haryana High Court
State Of Haryana And Others vs M/S Stup Consultant (P) Ltd on 18 July, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
RSA No. 1998 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 1998 of 2012 (O&M)
Date of decision: July 18, 2012
State of Haryana and others
...Appellants
Versus
M/s Stup Consultant (P) Ltd.
...Respondent
CORAM:- HON'BLE MR. JUSTICE A.N. JINDAL
Present:- Mr. Amit Kumar, DAG, Haryana,
for the appellants.
A.N. JINDAL, J.
CM No. 5555 C of 2012 For the reasons stated in the application, which is supported by the affidavit, delay of 144 days in filing the appeal is condoned.
CM stands disposed of.
RSA No. 1998 of 2012 The trial court, vide its judgment dated 24.9.2010, decreed the suit of the plaintiff/respondent for recovery of `2,78,682/- alongwith interest @ 24% per annum from the date of filing of the suit till its realization. On appeal, the first appellate court, partly accepted the appeal with costs and decree was modified to the extent that the plaintiff would be entitled to aforesaid amount from the defendants alongwith pendent lite and future interest @ 9% per annum.
The facts, in brief, are that the plaintiff-respondent company, which is incorporated under the Companies Act, was awarded contract of consultancy service for project preparation of strengthening of National RSA No. 1998 of 2012 2 Highway No. 10 for road section from kilometer 250 to 275 (except 2 kilometer in Sirsa Town) in Haryana. The amount of the contract awarded to the plaintiff was to the tune of `13,27,055/-. The plaintiff company completed six sets of preliminary reports on 26.12.2000 and all the documents, including the draft final report were submitted to the Chief Engineer, Ministry of Surface and Transport, New Delhi, on 28.5.2001, as directed by defendant No.5. Even after having completed the contract to the satisfaction of the defendants/appellants, the complete bill of the plaintiff was not approved and an amount of `2,78,682/- was withheld, regarding which the plaintiff preferred the suit.
Notice of the suit was given to the defendants, who appeared and contested the cause. Grant of contract for strengthening of National Highway No. 10 is admitted. It was submitted that tender of the plaintiff- company was accepted subject to the terms and conditions exhibited in the detailed approved DNIT and in the tender form Stereo B&R No. 29 prescribed for submission of tender. It was agreed between the parties that all the disputes of differences shall be referred to the sole arbitration of any serving Superintending Engineer or the Chief Engineer, Haryana PWD (B&R), as per clause 25A (2) of the agreement. The decision of the arbitrator shall be final and binding between the parties. It was also agreed between the parties that, as per sub clause 10 of Clause 25-A of the agreement, no question relating to this contract shall be brought before any civil court, without first completing the arbitration proceedings. It was further submitted that the plaintiff initially submitted the inspection report and 10% of the bid amount was payable in terms of the agreement, which was paid to the plaintiff, vide voucher No. 5 dated 10.1.2001. Similarly, in RSA No. 1998 of 2012 3 terms of the agreement, 15% of the total bid amount was payable on submission of project report, which too was paid to the plaintiff, vide voucher No. 20 dated 9.2.2001. The plaintiff company was supposed to submit draft final report and no extra claim was admissible to the plaintiff, as per the terms and conditions of the agreement. The approval of detailed project report was to be taken by the plaintiff from the Ministry of Road Transport and Highways but it did not get the same. Receipt of 80% of the total amount/fee was admitted by the plaintiff. The balance bill of 20% payment was to be paid on approval of the DPR and as such the bill raised by the plaintiff company prior to the approval of DPR is in violation of the terms and conditions of the contract. It was further submitted that approval of detailed project report was necessary from the Ministry of Road Transport and Highways, New Delhi, on behalf of the Union of India, but the plaintiff has not impleaded Union of India as party to the suit. It was further submitted that since the Ministry of Road Transport & Highways, New Delhi, has rejected the draft final report so submitted by the plaintiff, therefore, the payment of remaining 20% of the bid amount cannot be made to the plaintiff/company.
On the pleadings of the parties, the following issues were framed by the trial court:-
1. Whether the plaintiff is entitled to recover the amount of ` 2,78,682/- alongwith interest as alleged? OPP
2. Whether the suit of the plaintiff is not maintainable in the present form ? OPD
3. Whether the plaintiff has no cause of action to file the present suit? OPD RSA No. 1998 of 2012 4
4. Whether the plaintiff is stopped by its own act and conduct? OPD
5. Whether the suit is bad on account of non-joinder and mis-joinder of necessary parties? OPD
6. Whether the suit has not been filed by a duly competent person? OPD
7. Whether the suit is barred by limitation? OPD
8. Whether the suit is liable to be dismissed with special cost ? OPD
9. Relief.
Both the parties led evidence in support of their pleadings. The trial court decreed the suit alongwith interest @ 24% per annum. However, the first appellate court, partly accepted the appeal and the decree was modified to the extent that the plaintiff would be entitled to the amount due alongwith pendente lite and future interest @ 9% per annum, as already noticed.
Heard.
It is an admitted fact that the contract for preparation of detailed project report for strengthening of National Highway No. 10 was granted to the plaintiff, vide Ex. P.5 (Ex. D1) and the total cost of the project was `13,27.055/-. It is also an admitted fact that 80% of payment has already been released and dispute is only regarding balance payment of ` 2,78,682/- remains.
In the written statement, it has been alleged that the plaintiff has not completed the entire work and suggestion to this effect was also given to PW1 Nayan Singh during his cross-examination, which was denied RSA No. 1998 of 2012 5 by him.
To prove that entire work stand completed within stipulated period, the plaintiff has led in evidence letter Ex. P.21 dated 30.11.2000 written by SDO Provincial Sub division No. II, (NH), Sirsa to the Executive Engineer Provincial Division No. II (NH Works) Hisar and vide this letter, the SDO has intimated to the XEN that the plaintiff has completed all survey work and collected field data, as per inspection report, and their work uptill now is quite satisfactory. DW1 A.K. Goel, XEN produced the original record and admitted that letter Ex. P21 has been written by their department and the same is correct. Thus, the work awarded to the plaintiff stands completed by it. The plea raised by the defendants that the work has not been completed stands falsified and is not borne out from the record.
Learned counsel for the State has not much to argue the case as the Department itself has admitted that the plaintiff has completed the contract and has submitted the report to the satisfaction of the appellants, but only due to non approval of detailed project report payment could not be made. Arbitrary refusal of approval does not bind the plaintiff-company and the appellants are bound to pay for the work done by the plaintiff. As such, both the courts below appear to have rightly appreciated the issues and on scrutiny of the evidence brought on record. No question of law much less substantial question of law arises for determination. No illegality has been detected in the impugned judgments so as to make observation of disagreement with the findings recorded therein.
Resultantly, finding no merit in this appeal, the same is dismissed.
July 18, 2012 (A.N. JINDAL)
prem JUDGE
RSA No. 1998 of 2012 6