STATE OF BIHAR Vs. RUBY CONSTRUCTION

JUDGEMENT

(1.) The instant appeal has been preferred against the judgment and decree dated 20.10.2006, decree sealed and signed on 31.01.2006 in Title (Arbitration) Suit No. 314 of 1985 by learned sub-Judge VI, Patna whereby and whereunder the Title Suit filed by the plaintiff/respondent was decreed with cost. The defendants are the appellants and the plaintiff is the respondent.

(2.) The suit was filed by the plaintiff for settlement of his claim related with an agreement by appointing Arbitrator or settlement of his claim by the court admitting it to be regular suit for passing decree of Rs. 7,20,524/- with interest in favour of the plaintiff. The case of the plaintiff, briefly stated, is that on 12.12.1980 Sone-Ganga Flood Protection Department has published an auction notice in the daily newspaper for construction of revetment and slope of 920 feet from Ranighat to Gulbi Ghat under Group 3A for the protection of right bank of Ganga river, that had to be completed till June, 1981. By the said auction notice, Bids were invited from the registered contractors of the Irrigation Department, Govt. of Bihar in the office of defendant no. 4, the Superintending Engineer, Sone Bhawan, Beer Chand Patel Road, Patna till 3:00 p.m. on 12.01.1981 and Bids have to be opened on the same day in presence of the Bidders by the defendant no.4. But on 30.12.1980 the defendant no. 5, the Executive Engineer, had revised the last date of applying the Bids and made it to 14.01.1981. The plaintiff is a registered firm and it had deposited its Bid on 14.01.1981 along with other documents with necessary security deposit that was done by putting the National Saving Certificate and Pass Book of Bankipur Post Office on mortgage in favour of defendant no. 5. The Bids, thus, received were opened by the defendant no. 4, the Superintending Engineer, in which almost all the valid Bids, the plaintiff's Bid was the lowest but the defendant no. 4 had showing favour and malafide, recommended the Bid of Jawahar Lal Singh for approval. His Bid was not valid which was below the estimated limit. That was informed to the defendant no. 4 by the plaintiff through his letter dated 27.02.1981 and by the defendant no. 5 through its letter no. 168 dated 29.02.1981 in which defendant no. 5 had informed to the defendant no. 4 that in such a small money said work of auction could not be completed and he stated that the Bid of the plaintiff is valid and lowest. In the mean time, due to increase in rates of articles, Department has changed the schedule rate with effect from Ist July, 1981. The plaintiff had received the auction under new conditions that is verified in the letter of the plaintiff dated 03.09.1981, that was accepted by the defendant no. 4, the Superintending Engineer, by its letter no. 1347 dated 15.09.1981. On 15.09.1981, some difficulties arose and that were discussed with the Superintending Engineer and agreement was reached to the point that the Department shall undertake the management of the treated Sall Balla through the Forest Department, it is also agreed that the defendant no. 4 shall write a letter to the appropriate authority of the Railway to provide 125 wagons on adhoc basis that will carry essential goods to Rajendra Nagar Patna from Bakudih Railway Station of North Eastern Railway. Finally, this was also agreed between the parties that the calculation of 90 days of finishing auction work shall be made after proper and correct measurement of the entire place of work by the Surveyor and providing paying. Further case of the plaintiff is that through the correspondence, defendant no. 3, Chief Engineer has accepted the Bid of the plaintiff on 14.01.1981 as is clear from the Superintending Engineer's letter No. 1347 dated 15.09.1981. Thus, plaintiff had been allotted the work of Rs. 8,34,718.17/- and after executing the agreement making contract with Executive Engineer given instruction to collect treated Sall Balli, boulders and other materials. On 12.09.1981, plaintiff by the signatures of its partner Baleshwar Prasad Singh, entered into an agreement with Executive Engineer in presence of the witnesses that was attested by him and one copy was provided to the plaintiff. Thus, value of the contract stood to Rs. 8,34,718.17/- and its number was Contract No. 1/2-36 year 1981-82. On 12.12.1981, the defendant no. 5 had issued an authority letter for taking Sall Balla from Hazaribagh Forest Department but document D was issued to the plaintiff on 16.12.1981, after termination of the period of completion of work. Work till 14.12.1981 was not measured by the defendants nor total length of 920 feet was marked to the plaintiff. Plaintiff had written a letter dated 31.03.1982 for extension of period of completion of work that was accepted by the Junior Engineer, S.D.O. and finally it was approved by the defendant no. 5. Now plaintiff had started work according to the contract. Within the contract the defendants and department had important role of responsibility and accountability and it was their duty that they should provide treated Sall Balla and boulders to the plaintiff and Engineer Incharge should provide boundary mark and marking of the work place to the plaintiff. Again, on 28.05.1982, prayer was made for extension of time from 31.03.1983 that was verified by the Junior Engineer and S.D.O. but defendant no. 5, the Executive Engineer, had kept it into pending. Stone materials of Rs. 2.79 lacs reached from Bakudih Railway Station to Rajendra Nagar, Patna, that was booked by the plaintiff and R.R. was sent to the defendant no. 5 who received that on 9th June, 1982 through the defendant no. 6 under the instruction of defendant no. 4 and that was not supplied to the plaintiff contractor and the contract of the plaintiff was breached by malafide and illegality and plaintiff suffered a loss of Rs. 7,20,524/- by the acts of the defendants and plaintiff has also stated that the defendants being under collusion misappropriated the stone materials and despite several request and sending of legal notice, defendants have kept hold of the advance and security money of the plaintiff and due to acts of the defendants and knowingly obstruction of the defendants and due to not observing accountability, plaintiff suffered loss of Rs. 7,20,524/- for which the plaintiff filed the suit against the defendants to recover the money with interest and costs payable as per law.

(3.) After filing of the suit show cause notice was issued to the defendants and they have in their reply to show cause denied all the charges of the plaintiff and pleaded that the suit of the plaintiff is not maintainable and plaintiff has no cause of action. The entire suit is time barred and plaintiff is knowingly raising doubt and on arising of any dispute as per contract, Superintending Engineer is the competent authority for settlement and no suit related to Money may be accepted. The defendant further pleaded that the plaintiff in his plaint not specifically mentioned any item of the suit, hence, they are not in a position to reply the plaintiff, if they have any valid claim, then they should file it before Arbitrator and if there is any kind of dispute related to contract, then, it shall be sent before the Superintending Engineer for Arbitration.