SUALEHEEN Vs. SATYAWATI CO-EDUCATIONAL COLLEGE

JUDGEMENT

(1.) This appeal has impugned the judgment and decree dated 16.08.2007 which had reversed the findings of the trial Judge dated 12.12.2006. Vide impugned judgment and decree dated 12.12.2006, the suit of the Plaintiff seeking damages and compensation had been decreed in the sum of ' 76,911.18 along with interest @ 8% per annum as also costs. Vide the impugned judgment, the decree was modified and the suit of the Plaintiff was decreed for a lesser amount i.e. the actual bill which had been raised by the Plaintiff which was in the sum of ' 8,746.18 along with interest @ 8% per annum. This judgment is the subject matter of the second appeal.

(2.) The appeal has been admitted and the following substantial questions of law have been formulated:

(3.) On behalf of the Appellant, it has been urged that the finding in the impugned judgment is a perversity; attention has been drawn to Ex. PW-1/10 dated 17.06.1996. It is pointed out that this document clearly shows that a concluded contract had been evidenced between the parties. The Defendant had waived the condition of payment of earnest money and the other terms and conditions of the tender also stood waived in view of the fact that it was in an emergent situation that the Plaintiff had been asked to complete the remaining work which had remained unconcluded by Mr. Rajender Singh. It was in this scenario that the award of work had been granted to the Plaintiff in terms of the communication dated 17.06.1996. Attention has also been drawn to Ex. PW-1/11. Counsel for the Appellant has placed reliance upon a judgment of High Court of Kerala reported in , AIR 1987 KER 56 to substantiate his submission that where the Defendant's tender had been accepted by the Plaintiff without Defendant's/tenderer's making the security deposit, nevertheless it was held to be a concluded contract between the parties; the condition of deposit of the security amount had stood waived.