ELECTRONICS CONTROL INSTRUMENTS Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is second appeal by plaintiff having remained successful in the trial court but having been non-suited by the lower appellate court. Appellant plaintiff was granted contract for execution of some work by defendant no. 1 - respondent/Union of India. Defendant no. 2- Deputy Chief Electrical Engineer (not party in first appeal and in instant second appeal) ordered forfeiture of plaintiff's security amount of ` 2,12,740/- i.e. ` 1,87,490/- amount of bank guarantee encashed and ` 25,250/- security amount deposited in cash vide order dated 3.5.1990 on account of delay in execution of the contract. Said action of defendant no. 2 has been challenged in the suit claiming it to be illegal and null and void. Defendants contested suit and justified forfeiture of plaintiff's security. Various other pleas were also raised.

(2.) LEARNED Civil Judge (Junior Division), Patiala vide judgment and decree dated 10.2.2007 decreed plaintiff's suit for declaration that action of defendant no. 2 regarding forfeiture of plaintiff's security is illegal, null and void. However, first appeal preferred by defendant no. 1 ? Union of India has been allowed by learned Additional District Judge, Patiala vide judgment and decree dated 28.7.2009 and thereby suit filed by the plaintiff stands dismissed. Feeling aggrieved, the plaintiff has preferred the instant second appeal.

(3.) LEARNED counsel for the appellant vehemently contended that the plaintiff has been non-suited by the lower appellate court on the ground that the plaintiff has not sought the relief of recovery of the security amount and suit for mere declaration is not maintainable but the plaintiff could not have sought relief of release of security amount from the civil court being within the purview of the Arbitrator whereas validity of forfeiture of the security amount was not within the purview of the Arbitrator.