MAHENDABHAI JETHALAL VYAS Vs. GURUDARSHAN RAJENDRASINH SHOKHI HEIR OF DECD. RAJENDRASING MASASING SHOKHI

JUDGEMENT

(1.) This First Appeal under Section-96 of the Code of Civil Procedure, 1908 at the instance of the original plaintiff and is directed against the judgment and decree dated 30/09/2016 passed by the Principal Senior Civil Judge, Bharuch in the Special Civil Suit No.229 of 1998 filed by the appellant herein, which came to be dismissed.

(2.) The facts giving rise to this First Appeal have been recorded by the Court below in the Paragraphs - 1, 2 and 3. The same are as under:- 2. 1 The plaintiff is doing the business of construction at Bharuch. The defendants nos.1 to 4 are the heirs of Rajendrasing Sokhi. O.N.G.C. Ankleshwar had given contract to Rajendrasing Masasing for constructing road of Ankleshwar and he had given sub contract to plaintiff for the said work by executing written agreement on 30/3/1996. The plaintiff had worked as per the contract and there are dues of Rs. 7,15,762/- payable by deceased Rajendrasing Shokhi to the plaintiff. The plaintiff had accepted the liability of Rs. 7,05,000/- of deceased Rajendrasing and also paid that amount to Speedking Enterprise on behalf of Rajendrasing. As per the settlement of account between them, the deceased Rajendrasing had given two post dated cheque dated 10/10/1998 and 2/11/1998 of Rs. 9,00,000/- and Rs. 8,65,000/- respectively but suddenly Shri Rajendrasing expired on 9/9/1998 due to heart attack. As the defendants nos.1 to 4 are the heirs of deceased Rajendrasing, hence, he has informed the defendants nos.1 to 4 for recovering the due amount of deceased father Rajendrasing but they have not given any support, hence, he has requested the defendants nos.5 to 6 for not releasing the payment of Speed King Enterprise but the defendants nos.5 to 6 have informed to take the stay order from the court. So he could not recover the said due amount. The defendants nos.1 to 4 are trying to dispose off the immovable and movable properties of deceased Rajendrasing i.e.(i) Property No.213, Shakti nagar, Gujarat Housing Board, Bharuch of Rs. 7,85,400/-, (ii) Property No.214, Shakti nagar, Gujarat Housing Board, Bharuch of Rs. 9,81,000/- (iii) (Vehicle) Jeep No.GCL 8922 &Maruti Zen GJ-16/C-3866 of Rs. 4,00,000/- (iv) Amount of rs.2,23,000/- Rs. 1,44,000/-, Rs. 1,30,000/-, Rs. 75,000/-, Rs. 1,54,689 deposited on different dates in the account of O.N.G. Ankleshwar (v) Fixed Deposit in State Bank of India, ONGC Ankleshwar Baruch, bearing No.F.D.R.A./32 No.612039 of Rs. 1,00,000/- of dated 16/8/2000 (vi) Bill due from O.N.G.C. of Rajendrasing Shokhi and after disposing of the said properties the defendants nos.1 to 4 are trying to go to their native - Punjab. Therefore, the plaintiff has given separate application and prays for attachment before judgment of the above mentioned movable land immovable properties and filed the present suit for recovering of due amount of Rs. 17,65,000/- along with the interest at the rate of 18% from the defendants nos.1 to 4. 2. 2 The defendants are duly served with the notices. The defendants nos.1 to 4 have filed their written statement at vide Exh.15, wherein they have admitted the executing of agreement of sub contract in favour of plaintiff by their deceased father Rajendrasing for the period from 1.4.96 to 31.12.96. They have denied the letter dated 17/7/1997 of Rajendrasing. They have admitted that deceased Rajendrasing had given two cheques of Rs. 9,00,000/- and Rs. 8,65,000/- to the plaintiff but the amounts of both the cheques are paid to the plaintiff in cash on 10/8/98 by deceased father Rajendrasing in their presence and for the same the plaintiff had given writing on his letter pad and also given assurance that he will return the said cheques but after the death of their father the plaintiff has misused the said cheques. Hence, there was no due of plaintiff against deceased father Rajendrasing. In short these defendants have denied the averments of the plaintiff in toto and prayed to dismiss the suit of the plaintiff with costs. 2. 3 The defendants nos.5 and 6 have filed their written statement at vide Exh.11, wherein they have mainly contended that there is no privity of contract between the plaintiff and defendants nos.5 and 6, therefore, there is no cause of action arisen against them. FDR No.27 in agreement no.39 has been released on 10/12/96. That FDR No.612039 has been released on 17/11/97, as such there is no such FDR with ONGC. FDR No.1 to 4 are in favour of ONGC as such the plaintiff can ask for any stay regarding the same. They have paid the bills against the agreements nos.127 and 102 of Rs. 14,17,803 and 22,29,989/- respectively. Stating such facts, they have prayed to dismiss the suit with costs against them.

(3.) Having regard to the pleadings of the parties, the trial Court framed the following issues vide Exh.57.