MYSORE LAMP WORKS LTD. R/BY ITS MANAGING DIRECTOR G.C. INDRARAJ URS. Vs. MYSORE URBAN DEVELOPMENT AUTHORITY R/BY ITS COMMISSIONER

JUDGEMENT

(1.) THE Appellant has preferred this appeal challenging the legality and correctness of the judgment and decree passed by the Small Causes & Civil Judge (Sr. Dn.), Mysore dated 2.8.2007 in O.S. No. 751/2004. The Appellant -company is a public sector undertaking of State of Karnataka. Respondent -Mysore Urban Development Authority is also a creation of the State of Karnataka under the Karnataka Urban Development Authority Act, 1937.

(2.) FACTS leading to this case are as here under: Mysore Urban Development Authority filed the suit to recover a sum of Rs. 1,03,00,000/ - which is said to have been paid as advance for the supply of electrical materials and erection of street lights etc. to the Defendant and a sum of Rs. 36,87,682/ - towards interest to be calculated from 24.11.2001 to 17.11.2004 on Rs. 1,03,00,000/ -with interest at 12% p.a. along with notice charges of Rs. 1,000/ -, in all Rs. 1,39,88,682/ -According to the plaint averments. in respect of two residential lay -outs formed by the Plaintiff -Mysore Urban Development Authority viz., Rajiv Nagar III Stage (Devanur III Stage), Sathagalli II Stage in Mysore and Handuvinahalli Layout in Nanjangud entrusted the work of electrification to the Defendant -company and on the request of the Defendant, advance payment of Rs. 1,03,00,000/ - was paid on 24.11.2001 subject to the condition that the Defendant shall complete the work of electrification and street lighting within the stipulated time on the ground that Defendant did not execute the work by issuing a legal notice, filed a suit to recover the aforesaid amount. Defendant admitted the entrustment of work by the Plaintiff and it also accepted the receipt of advance paid by the Plaintiff. According to the Defendant, in terms of the order placed by the Plaintiff, it supplied the material worth of Rs. 1,06,00,000/ - and the work could not be executed on account of the delay and latches in not getting the approval from the KPTCL and also on the ground that Plaintiff did not co -operate with the Defendant to execute the work. Therefore, Defendant contended that the value of the material supplied by the Defendant and certain work executed by the Defendant is also required to be taken into account and that the Defendant is entitled to claim adjustment in this regard. Accordingly, Defendant requested the court to dismiss the suit. Based on the above pleadings, following issues were framed by the court below: 1. Whether the Defendant proves that in view of the mutual agreement dated 7.1.2003 between the Plaintiff and the Defendant and the resolution dated 4.2.2004, the Plaintiff is estopped from making any claim against the Defendant, the suit is highly misconceived? 2. Whether the Defendant proves that the non -furnishing of the invoice is only by inadvertence and there was no demand made by the Plaintiff after receipt of the materials, asking the Defendant to furnish the invoice immediately and mere non delivery of invoice will no way empower the Plaintiff to seek such a huge claim against the Defendant?

(3.) TO what order the parties are entitled to? In order to prove their respective contentions, on behalf of the Plaintiff one K.M. Munigopala Raju was examined as PW -1 and he relied upon Ex.P -1 to 15 and on behalf of the Defendant one Manohar was examined as DW -1. He relied upon Ex.D -1 to 14. Trial court, after considering the entire evidence held issues 1 & 2 in the negative and issue No. 3 in the affirmative. Accordingly, suit came to be decreed for a sum of Rs. 1,39,88,682/ - along with future interest at 12% p.a. on Rs. 1,03,00,000/ -from the date of the suit till the date of realisation. Challenging the legality and correctness of the judgment and decree dated 2.8.2007, present appeal is filed. 3. The main contention of Mr. Amar Kumar, counsel for the Appellant is that Plaintiff/Respondent having accepted the delivery of the material supplied by the Appellant, trial court has committed a serious error in not adjusting the value of. the material supplied by the Defendant. According to him, trial court did not consider that the Appellant had made a claim before the Respondent that it had supplied the material worth of Rs. 1,06,00.000/ - and after adjusting the advance paid by the Plaintiff towards the value of the material supplied, still the Defendant was entitled to receive the amount from the Plaintiff. Therefore, he requests the court to re -consider the entire evidence and allow the appeal. 4. According to Mr. Manjunath, counsel for the Respondent, that even if the Appellant's case is accepted that it had supplied the material, there was no counter claim made by the Defendant, therefore, Defendant cannot request to consider the counter claim in the absence of such a prayer and payment of court fee. Therefore, he requests the court to dismiss the appeal.