STATE Vs. ANANDA PRASAD

JUDGEMENT

(1.) The sole defendant in Money Suit No. 340/6 of 1969/73 of the Court of the First Additional Subordinate Judge, Cuttack, is the appellant in this appeal. This is a suit by the plaintiff for recovery of a sum of Rs. 39,713.92 with pendente lite and future interest from the defendant who is the State of Orissa.

(2.) The plaintiff's case in brief is that the plaintiff is a carriage and transport contractor and his business is to carry materials to different destinations. The plaintiff alleges that at the request of the Executive Engineer, Public-Health Division, Cuttack, acting on behalf of the State of Orissa, the plaintiff carried various materials, such as cement C.I. and G.I. pipes A.C.C. sheets, to different places during the period from 21-5-1965 to 21-8-1965. The works executed by the plaintiff were duly accepted by the defendant who enjoyed the benefits thereof. The plaintiff submitted bills for a total sum of Rs. 87,659.83 for the said works. From time to time the defendant paid a total sum of Rs. 48,759.92 towards the said bills. The plaintiff's case is that the balance amount out of the said bills had not been paid by the defendant in spite of repeated demands for which the plaintiff served a notice under S.80, C.P.C. on the defendant who on receipt of the same made a part payment of Rs. 15,000/- and did not make any further payment thereafter. According to the plaintiffs calculation, a sum of Rs. 33,759.92 has remained outstanding against the defendant for the recovery of which the suit has been filed along with the interest thereof.

(3.) The defendant denies all the plaint allegations made in the plaint and contends that during the year 1964-65 tenders for transportation of materials were invited and forwarded to the Superintending Engineer for his decision. On scrutiny it was found that certain essential items were not included in the tender. Therefore, the Superintending Engineer, P. H. Circle, Bhubaneswar, in his letter No. 9032 Dt. 30-9-1964 rejected the tenders and asked the Cuttack P. H. Division to invite fresh tenders for the work. The Superintending Engineer in the aforesaid letter also ordered that for urgent cases of carriage the lowest rates for the carriage tender decided in respect of Drainage and Sewerage Division should be adopted and the lowest tenderer or any other contractor might be asked to execute the work till the tenders were finalised for the Division. Thereafter the next tender was invited on 16-6-1965 and a decision was taken on 23-8-1965 by the Superintending Engineer in his letter No. 10/274 dt. 23-8-1965. The plaintiff executed the work of transportation of materials during the period from 21-5-1965 to 21-8-1965 on the verbal orders of the officers of the Division as no written order was issued at any level. On 31-5-1965 the plaintiff filed an application praying that he be paid at the rates accepted for the Drainage and Sewerage Division. For the works executed by the contractor, he was paid 7 bills and 12 of his bills were kept pending for payment. In the meanwhile the Superintending Engineer in memo. No. 244 dt. 5-8-1965 issued an order to ban payment to transport contractors and called for detailed informations on the tenders invited from March, 1962 onwards. Accordingly, detailed informations were furnished to the Superintending Engineer, P. H. Circle, Bhubaneswar. The Superintending Engineer referred the matter to the Chief Engineer who in his letters No. 471 dt. 3-12-1965 and No. 628 dt. 24-8-1967 gave decision in the matter. Subsequently, on a reference for clarification, the Chief Engineer in his letter No. 431 dt. 22-5-1968 gave the decision regarding the payment of the bills. Further clarifications on several points were sought for and the latest decision of the Superintending Engineer was received vide letter No. 217 dt. 22-5-1969. According to the said decision, the contractors were to execute agreements for final disposal of their cases and recoveries were to be made from them from their pending bills. The plaintiff was asked to execute the agreement but he refused to do so on the plea that the matter was sub judice. As per the rates decided by the authority, the claim of the plaintiff for his pending bills comes to Rs. 12,234.45 instead of Rs. 48,759.92 as claimed by him. The defendant has appended a statement of the total recovery made from the contractor and has stated that it is not possible to make any further payment to the plaintiff as the recovery to be made from him is much more than his dues. It has also been stated that since the outstanding bills of the plaintiff are insufficient to meet the recovery, his earnest money deposited in the shape of N.D.C. has also been held up. The defendant has also pleaded that the suit is barred by limitation and is hit by the provisions of Art.299 of the Constitution. The defendant ultimately prays for dismissal of the suit.