STATE OF GUJARAT Vs. PATEL DEVJIBHAI KHIMJIBHAI

JUDGEMENT

(1.) This is an appeal by the State of Gujarat against the judgment and decree of the City Civil Judge Ahmedabad dismissing the suit of the State Government for recovery of Rs. 36 781 paise after adjusting an amount of Rs. 11 536 paise being the amount of security deposit against an amount of Rs. 48 318 paise being the price of the materials namely steel cement and steel-wire as well as empty cement bags supplied to the respondent-contractor The suit has been dismissed by the learned City Civil Judge on the short ground that the suit was premature in view of the provision contained in Clause 30 of the suit contract requiring an aggrieved party to approach the Superintending Engineer before taking any legal action. The learned City Civil Judge has on the merits of the case found that the State Government was entitled to recover Rs. 36 781 paise from the respondent-contractor. It is this judgment and decree which is the subject matter of this first appeal before us.

(2.) At the time of hearing of this appeal Mr. Chhaya the learned Assistant Government Pleader appearing on behalf of the State Government urged that the learned City Civil Judge was clearly in error in holding that Clause 30 of the suit contract precludes the aggrieved party under the contract to approach Civil Court without first referring the matter in dispute to the Superintending Engineer. In submission of Mr. Chhaya the provision contained in Clause 30 should not be construed either as a certification clause or as a clause providing for arbitration as a condition precedent to the filing of the suit. In support of his contention Mr. Chhaya relied on the decision of the Division Bench of this Court consisting of J. M. Sheth & B. K. Mehta JJ. (Per J. M. Sheth J.) in Appeal No. 34 of 1970 from Order with Civil Revision Application No. 298 of 1970 with Civil Revision Application No. 299 of 1970 decided on 19th/20th January 1971 He therefore urged that the learned City Civil Judge was therefore in error in dismissing the suit in spite of his finding that the State Government was entitled to recover Rs 36 781 paise from the respondentcontractor.

(3.) The rival cases of parties be stated for appreciating the contention of the learned Assistant Government Pleader It is not in dispute that the respondent-firm was entrusted with the work of constructting 18 constabulary quarters at the Head Quarters Police Lines at Ahmedabad on the terms and conditions contained in the contract document Ex. 50. The work was commenced by the respondent-firm in the month of June 1956 and it submitted running account bills from time to time and payments were made to it accordingly the final bill was prepared and the respondent-firm was asked by letter dated November 2 1960 to attend at the office of the Deputy Engineer Shahi Bag Division Ahmedabad to finalise the bill. The partner of the respondent--firm requested the department to defer settlement of Bill till November 20 1962 The Deputy Engineer of the State Government by his letter of December 4 1962 informed the respondent-firm about the quantity of cement and steel not accounted for in the running account bills as also about the fact that empty cement bags were not returned by the respondent-firm The respondent-firm was accordingly informed by the letter of December 18 1962 to which the respondent-firm by its letter of December 25 1962 gave a false and evasive reply though the respondent-firm was asked to show the receipts for the return of empty cement bags the receipts were not produced and shown It was the case of the State Government that it supplied 498 tons of cement 95.6 tons of steel and 0.5T-3H-14 C.W.T. of steel-wires for the suit work through the Public works Department of the State Government and the quantity accounted for according to the State Government came to be Tons 353-1 Cwt of cement 64T-3H-00Cof steel and the remaining quantity namely 144 Tons and 19 Cwt. of cement 31 C.W.T. Tons of steel and of T-3H-14 C.W.T. of steel-wire remained unaccounted for and for which no recoveries were made in the running bills. The State Government also claimed Rs. 3 828 paise towards the cost of 5105 empty cement bags at the rate of Rs. 0-75 paise per bag. The State Government in all therefore claimed an amount of Rs 48 318 paise as the sum recoverable from the respondent-firm However the State Government adjusted an amount of Rs. 11 536 paise being the amount of security deposit against the aforesaid amount to be recovered and made a net claim of Rs. 36 781 paise. The case of the respondent-firm as disclosed in its written statement Ex. 12 was that the suit of the State Government was premature in view of Clause 30 of the suit contract under which all the disputes relating to the said agreement were required to be referred to the Superintending Engineer. The respondent-firm denied that it did not co-operate the State Government in finalising the bills. According to the respondent-firm it had returned the empty bags and therefore the State Government was not entitled to recover any amount on that count. The respondent-firm also asserted and maintained that there was no unexplained quantity of cement or steel as alleged by the State Government. According to the respondent-firm there were errors in the measurements taken by the State Government and if the measurements were correctly taken there would be no case for the State Government to complain about the unexplained quantity of cement steel or steel-wires as averred in the plaint. The learned City Civil Judge on the basis of the respective cases of the parties raised necessary issues and on the 2nd issue whether the State Government has established its claim of Rs. 36 781 paise it was found by the learned Judge as under: 19 This oral evidence supported as it is by the documentary evidence to which I shall presently advert in my opinion is sufficient enough to prove that the total quantity of steel and the cement as claimed by the plaintiff was supplied to the contractor that the cost recovered therefore is as mentioned in the Running Account Bills and the balance remains payable by the contractor-defendant in respect of these materials supplied as is an excess of the quantity mentioned in the Running Account Bills and as finally mentioned in the Final Bill. 20 The important documents in this connection are the said 39 Unstamped Receipts Exhibit 96 and the last unstamped receipt Exhibit 90. These receiptS are passed by the defendant contractor acknowledging the supply of the materials mentioned therein. The defendant has not examined any witness nor has he led any documentary evidence from the firms Account Books or any other document or paper to controvert the position as it emerges from these unstamped receipts These receipts alone therefore are sufficient enough to establish the plaintiffs case with regard to the supply of the materials of Cement and steel. 21 With regard to the empty cement bags there is the ..... Cement Bag Register.... maintained by the Department and entries therefrom are produced on record through witness Dineshchandra as per Exhibit 105. Here also there is no eVidence brought on record from the side of the defendant firm to contrOvert the position of Cement bags as it emerges from this Register 22 Apart from this the Seven Running Account Bills the entries in the contractors ledger (Exhibits 48-49) the Measurement Books (Exhibits 60-61) and the Forms of Indents for Materials put in by the defendant-firm which are at Exhibit 111 strengthen the case of the plaintiff State with regard to the materials supplied and empty cement bags no returned by the contractor that is the defendant-firm 23 In this view of the matter on merits I do hold that the plaintiff State has established its claim for the suit-amount and my finding therefore on Issue No. 2 will be in the affirmative. However in the opinion of the learned City Civil Judge the claim of the plaintiff-State with regard to the recovery in connection with the materials supplied and unaccounted for as also with regard to nonreturn of empty cement bags which is disputed by the defendant-firm both in the written statement before the Court as also in the corresponthat ensued between the parties prior to the filing of the present suit was one which ought to have been referred to for the decision of the Superintending Engineer as provided in Clause 30 and since it was not done the present suit was premature and not maintainable. The learned City Civil Judge followed the decision of the learned Single Judge of the Bombay High Court in SHANTI SHEKHAR BANERJI V. BOMBAY HOUSING BOARD in Pauper Petition No. 20 of 1955 and Suit No. 377 of 1955 where the learned Single Judge of the Bombay High Court held in view of the provision contained in the contract before him which was pari-materia with the provision contained in Clause 30 of the suit contract document Ex. 50 in the present suit that it was a certification clause the compliance of which was a condition precedent to the filing of the suit. The learned City Civil Judge found himself being bound by this decision as it was the decision of the Bombay High Court rendered before 15th March 1957. The learned City Civil Judge therefore having found himself bound by that decision held that the suit was pre-mature and therefore on that ground alone dismissed the suit.