SURESH CHANDRA DAS Vs. CALCUTTA METROPOLITAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This appeal arises out of an order passed by Sabyasachi Mukharji, J. on the 11th of July, 1977. The plaintiff instituted this suit on the 22nd of April 1977 under Order 37 of the Code of Civil Procedure. The claim of the plaintiff in the suit is for recovery of sum of Rs.5,54,596.18 in respect of works stated to have been done by the plaintiff pursuant to a contract arrived at by the plaintiff with the defendant by acceptance by the defendant on the 21st April 1975 of the Tender submitted by the plaintiff on the 18th of April 1975 in respect of the work mentioned in the Tender. Running Bills were submitted and certain payment were made in respect of the said running bills. Before the institution of the suit the plaintiff wrote a letter to the defendant on the 3rd March 1976 demanding payment of the said sum of Rs.5,54,596.18. A reply was sent to the said letter by the defendant on the 21st April 1976 and in this letter the claim of the plaintiff was denied and disputed on the grounds mentioned in the said letter. The main two grounds mentioned in the said letter are that the rates on the basis of which the bills have been submitted were incorrect and the plaintiff has also stopped carrying on the work and has not completed all the works to be done in terms of the Agreement between the parties. After the institution of the suit under Or. 37 in view of the amendments introduced in the said Order, authorizing and entitling the plaintiff to file the instant suit under the said Order, as the suit of the plaintiff is for the recovery of a fixed sum of money arising out of a written contract between the parties, the plaintiff followed the procedure provided in Order 37 of the amended Code of Civil Procedure by taking out Summons for final judgment as the defendant had duly entered appearance in the suit on the 12th May 1977.

(2.) The plaintiff affirmed an affidavit in support of the Summons taken out by him on the 24th May 1977 and the affidavit was affirmed by the plaintiff Suresh Chandra Das on the same date. In the affidavit filed the plaintiff has stated that the plaintiff verily believes that there is no defence to the claim of the plaintiff in the suit. An affidavit-in-opposition to the said affidavit of the plaintiff was filed on behalf of the defendant and the said affidavit has been affirmed by one Prasanta Kumar Ghose who happens to be the Executive Engineer, South Calcutta Division, Sewers & Drainage Sector of the defendant. In the affidavit-in-opposition filed on behalf of the defendant the claim of the plaintiff has been denied in its entirely and the defendant has further stated that the plaintiff has been trying to take improper advantage of certain typographical mistakes which had occurred in the Tender Form and the claim made by the plaintiff is not tenable and the plaintiff has also ceased to carry on his work and has not completed the entire work in terms of the Agreement between the parties. It may be noted that there was an earlier proceeding in the City Civil Court where a suit had been filed by the plaintiff. It is also to be noted that there was an application for stay of the instant suit under S. 34 of the Arbitration Act. The said application for stay, it appears, has now been finally disposed of and stay has not been granted.

(3.) Considering the various statements made in the affidavit, the learned trial Judge an order on the 11th July 1977 granting leave to the defendant to contest the suit unconditionally. Against the order of the learned Judge granting unconditional leave to the defendant to defend the suit, the plaintiff has preferred this appeal.