HIMJIT CONSTRUCTION Vs. TARUN SARKAR

JUDGEMENT

(1.) This appeal from the appellate decree is at the instance of the defendant and it arises out of a money suit. In the money suit the plaintiff claimed a sum of Rs. 9,252/- as his outstanding dues for the works done on a sub-contract on behalf of the defendant for adjustment of the amounts paid and also claimed a sum of Rs. 748/- by way of interest. According to the plaintiff, he was given a sub-contract to effect certain painting and whitewashing of premises No. 4, Raja S. C Mallick Road, Calcutta in March 1978. He completed the work in April 1978 and submitted a bill for a sum of Rs. 16,752/- for the works so done along with a job chart indicating the job undertaken by him on behalf of the defendant. According to the plaintiff, out of the aforesaid sum of Rs. 16,752/- he received payment of Rs. 7,500/- and what remained due by way of balance was Rs. 9,252/-. Since the said amount was not paid in spite of repeated reminders the plaintiff instituted the suit for recovery of the said sum together with interest as indicated hereinbefore. The suit was contested by the defendant. After taking all sorts of possible defences that can be taken in a general way the specific defence which the defendant took was that the sub-contract was not given to the plaintiff but was given to one Jayanta Kumar Sarkar. According to the defendant the work undertaken by Jayanta Kumar Sarkar was less in volume than as claimed by the plaintiff. The value of the work done, according to the defendant was Rs. 7873.26 but of which a sum of Rs. 7500/- being paid what remained due was merely Rs. 373.26. The defendant denied that any bill was submitted to the defendant by the plaintiff or that any such bill with a job chart was ever submitted. This in substance was the defence taken.

(2.) Upon the pleadings as aforesaid several issues were framed. Parties adduced evidence, both oral and documentary. The learned Subordinate Judge on consideration of the evidence answered the issues all in favour of the plaintiff and he further found that on the evidence adduced the case of the plaintiff had been well proved. Accordingly, the learned Subordinate Judge gave a decree for Rs. 10,000/- in favour of the plaintiff. On an appeal by the defendant all the findings recorded by the learned Subordinate Judge having been affirmed the learned Additional District Judge has dismissed the appeal. Hence the present second appeal.

(3.) Mr. Bhattacharyya appearing in support of this appeal has first contended that the plaint that was filed on the verification of one Tarun Sarkar was not maintainable as the said Tarun Sarkar had not proved the power of attorney in his favour under which he could derive authority to present the plaint or verify the same. Though no specific defence in this regard was raised in the written statement this issue was gone into by the two Courts below but was concurrently overruled because in view of the Courts below it was not for the defendant to dispute his authority and also because the power of attorney was duly filed though it was not exhibited because no specific issue was raised in that regard. The next point which has been urged by Mr. Bhattacharyya is that what appear to be the findings of fact are not really so because such findings are not based on evidence or are based on adverse inferences drawn contrary to law. These are the two points which have been convassed by Mr. Bhattacharyya in support of this appeal.