STATE OF BIHAR Vs. BABA CONSTRUCTION

JUDGEMENT

(1.) THE Defendants -Appellants have filed this Miscellaneous Appeal against the judgment and order dated 30 -4 -1993 passed in Title Suit No. 43. of 1988 by the Sub -ordinate Judge, I, Khagaria, whereby the learned Sub -ordinate Judge has decreed the Suit of the plaintiff -respondent and made the Award rule of the Court. The learned Sub -ordinate Judge has held that the Plaintiff is entitled to realise the amount of Rs. 69,492.00 with interest at the State of Bank of India rate from 30 -11 -1988 till the date of realisation.

(2.) THE plaintiff had filed the suit in the Court of Sub -ordinate Judge, Khagaria, for appointment of an arbitrator to give his award in respect of the claim of the plaintiff and to make it a rule of the Court. According to the plaintiff, Baba Construction, it had filled up tender for F.D.R. work Badla Nagar Para embankment in Paharpur and his rate was approved and the work was allotted to him at an estimated cost of Rs.

(3.) ,04,067.61 P. An agreement to this effect was executed by the plaintiff on one side and the Executive Engineer, Flood Control Division 2, Khagaria, defendant No. 2, on the other side. A sum of Rs. 15, 500.00 had been deposited by the plaintiff as earnest money and he completed the work, which was entered in the measurement book and he was paid Rs. 02,17,477.00 . According to the plaintiff -respondent, Rs. 69,492/ - remained due with the department concerned of the appellants. In spite of oral and written request made by the plaintiff -respondents, defendants -appellants did not pay the amount of Rs. 69,492. Due to delay in payment of the dues, the plaintiff has claimed interest. Further, according to the plaintiffs -respondents, there was a Clause for arbitration in the agreement which had been executed between the parties for carrying out the work in the embakment and it was to be referred to the Superintending Engineer of the circle, who was defendant No. 3 in the suit. It is relevant to mention here that in the title suit, the Collector of Khagaria was defendant No. 1 and the Executive Engineer. Flood Control Division 2, Khagaria, was defendant No. 2, and the Superintending Engineer, Flood Control Circle, Khagaria, was defendant No. 3 and the Chief Engineer, Irrigation, Samastipur, was defendant No. 4. 3. The defendants had contested the suit and a written statement on behalf of defendant No. 2 had been filed in the Court of the learned Sub -ordinate Judge, Khagaria. According to this defendant, the date of completion of work was 15 -6 -1985, but the plaintiff did not complete the work as per schedule date of agreement, but on the prayer of the plaintiff -defendant No. 3 extended the period till 14 -7 -1985 when the work was completed. This defendant had admitted in his written statement that the work done by the plaintiff -respondent was up to the tune of Rs. 02,86,969.00 and the plaintiff has already been Rs. 02,17,477.00 and thus Rs. 69,492.00 is due with the defendant. According to this defendant, the amount of Rs. 69,492.00 only could not be paid to the plaintiff respondent due to non -availability of the fund. The defendant has denied the payment of interest on the said amount. According to the defendant, as per Clause of agreement in view of the dispute in between the parties, the matter of dispute will be referred to arbitration but in the instant case, there is no dispute as the department is admitting dues of Rs. 69,492.00 of the plaintiff. It has been stated in the written statement that in any view of the matter, the dues, as mentioned above, is valid claim of the plaintiff and it may be referred to the arbitrator. But, it has been prayed to dismiss the suit.