STATE OF GOA Vs. PARWANI BUILDERS

JUDGEMENT

(1.) THE above appeal challenges the impugned Judgment and Decree dated 18th December, 2004, passed by the learned District Judge, at Panaji in Civil Suit No. 185/2004. Briefly, the facts of the case are as follows :

(2.) SHRI Shirodkar, learned Government Advocate appearing for the appellants has assailed the impugned judgment and pointed out that the contentions raised in the counter claim have not at all been considered by the learned Judge whilst passing the impugned judgment. Learned Counsel took me through the impugned judgment and pointed out that there is no appreciation of evidence at all with regard to the claim of the appellants in respect of the counter claim. Learned Government Advocate further pointed out that it is the contention of the appellants that there was an excess payment made by the appellants to the respondent No. 1 by mistake, which was sought to be recovered by the counter claim. The learned Counsel further submitted that the impugned judgment has been passed on irrelevant consideration, as the question of there being any estoppel on the part of the appellant would not arise. The learned Counsel took me through the notes of evidence and pointed out that the excess payment was effected to the respondent No. 1 which the appellants were entitled to recover from the respondent.

(3.) HAVING heard learned Counsel and on perusal of the record, I find that the Government Advocate Shri Shirodkar is justified in his contention that the learned Judge has not appreciated the evidence brought on record, nor scrutinized the material brought by the parties to ascertain as to whether the appellants were entitled for the relief claimed in the counter claim. So also the contention of the respondent to the effect that the counter claim itself was not maintainable in view of the provisions of Order II, Rule 2 of the Code of Civil Procedure has also not been considered by the learned Judge while passing the impugned judgment. The learned Judge has not at all addressed to the contentions raised by the respective parties, nor the material adduced by the parties on record with regard to their respective claims. As no adequate reasons have been given whilst disposing of the said suit, I find that the impugned judgment cannot be sustained and deserves to be quashed and set aside. The matter deserves to be remanded to the learned Judge to decide the counter claim afresh, after hearing both the parties, in accordance with law. In view of the above, I pass the following: