Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Amar Nath Misra on 20 September, 2019
Author: I. P. Mukerji
Bench: Md. Nizamuddin, I. P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:- Hon'ble Justice I. P. Mukerji
Hon'ble Justice Md. Nizamuddin
FA No. 360 of 2013
State of West Bengal & Ors.
Vs.
Amar Nath Misra
For the Appellant : Mr. Suprabhat Bhattacharya
For the Respondents : Mr. Probal Kumar Mukherjee
Mr. Silamta Cjakraborty
Mr. Anindya Halder
Judgment on : 20.09.2019
I. P. MUKERJI, J.
The respondent is a works contractor. On 11th March, 2002 a work order was issued in his favour by the Executive Engineer, Purulia Irrigation Division, the second appellant, for maintenance and repair of an approach road from Begunkodar to Murguma and onward to the head works of 'Saharajore' Irrigation Scheme under P.S - Purulia, District - Purulia. This approach road was 4.75 kilometres long. The total value of the tender was Rs.25,78,375/-. The work was to be completed within 90 days from 15th March, 2002. The time to complete the work was extended by the appellants from time to time. Finally, it was completed in April, 2004.
Only one term of the contract is relevant for the purpose of this appeal. The details and breakup of the rates at which the respondent was to be paid were mentioned in a schedule to it. Sl. No. 3 is material and is set out below:
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"Patching of potholes by drawing water, cutting to regular shape with vertical sides removing all loose and disintegrated materials screening & stacking the same for rouse with new materials as per requirement and filling the potholes with coarse aggregate and screenings, confirming to specifications and compacting the same with power roller including cost of all materials and hire charges of machineries but excluding the cost of coarse aggregate and screenings.
(a) Stone other than pakur/Dhadka? Chandil. 25% of 4750 x 3.05 x 0.075 ....... 271.64 m3 m3 654.68 Rs.177837=00"
It is an admitted position that the cost of "coarse aggregate and screenings" was to be paid separately by the appellants. By his letter dated 8th April, 2006 the respondent made a claim of Rs.13,87,323/- for carriage and supply of stone materials. Learned senior counsel for him, Mr. Probal Kumar Mukherjee submitted that these stone materials were equivalent to "coarse aggregate and screenings". This additional claim was well founded under the contract, he said.
In the plaint filed in the court below the respondent made a claim for Rs.24,57,118.68/- as the principal amount. This principal amount included the claim for supply and carriage of these stone materials for Rs.13,87,323/-.
By the impugned judgment and decree dated 31st May, 2011, inter alia, this claim was wholly decreed. Some other claims were also decreed. 3 The decree in respect of the other claims is not challenged in this appeal, by learned Counsel for the appellants. Only the part, for Rs.13,87,323/- in respect of the stone materials is questioned by him. The learned judge has delivered a very detailed judgment making a detailed narration of the case of the parties, analysis of the evidence and has come to the conclusion that the said claim by the respondent contractor for supply of stone materials was wholly sustainable. This part of the judgment of the court below is to be examined by this court. Let me analyse the evidence.
In his examination-in-chief the respondent stated in paragraph 16 that he had supplied "stone materials". "The spreading of morum was not included in the tendered work", he said.
The deposition of Amit Kr. Roy, the Executive Engineer, Purulia Irrigation Division, is important. He said in his cross-examination that "coarse aggregate" means "the big gravel", "screening" means "small gravel". Now, there is absolutely no dispute that "gravel" is synonyms with "stone".
In paragraph 17 of his examination-in-chief, Mr. Roy stated that the measurement in respect of work against Sl. No. 3 and 4 was entered in the measurement book and the RA bill of the respondent was duly paid. It appears from his evidence that the road laying or repairing work consisted of first laying "big gravel". At the last stage "small stone, sand along with bitumen" are made into a mixture and laid on the surface of the road. There is no denial that big gravel and small stones were supplied by the respondent. It was admitted in the evidence that the work in question was completed and the RA bill paid. 4 Therefore, it could be safely concluded that big gravel and small gravel or in other words, coarse materials and screening were employed by the respondent in the contract.
Thus, the findings of the learned judge in the court below on this issue was well founded. I affirm those findings.
I affirm the decree of the court below as far as the principal amount is concerned. But in my opinion, the rate of interest awarded is excessive. As there was no agreement between the parties for payment of interest and nothing on record to show that there was any notice under the Interest Act, 1978, claiming interest, I hold following the principle laid down is Section 34 of the Code of Civil Procedure that the respondent shall only be entitled to 6% simple interest from 12th April, 2007 being the date of institution of the suit till the date of payment by the appellant.
In those circumstances, the decree of the court below is modified by passing a decree for Rs.13,87,323/- in favour of the respondent and against the appellant No.1 together with interest @ 6% simple interest per annum from 12th April, 2007 till payment.
The appeal is disposed of accordingly.
Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
I agree, (Md. Nizamuddin, J.) (I. P. MUKERJI, J.)