STATE OF BIHAR Vs. BHAGWATI SINGH

JUDGEMENT

(1.) This application by the State of Bihar under Section 115 of the Civil Procedure Code (hereinafter referred to as 'the Code) is directed against the order dated 7th April, 1975, passed by the learned Subordinate Judge, Hazaribagh, directing the Stare of Bihar, namely, the Receiver to make payment of Rs. 16,330.38 paise to Bhagwati Singh, the opposite party, a Government Contractor and to report its compliance within fifteen days of the date of order.

(2.) In order to appreciate the point involved in this application, it will be necessary to state briefly the facts obtained from the application filed by the petitioner. The State of Bihar, namely, the petitioner instituted a Title Suit bearing No. 16 of 1961 in the Court of learned Subordinate Judge, Hazaribagh, regarding mining properties of late Raja of Ramgarh. An application was also filed in the said suit by the petitioner for the appointment of a Receiver under Order 41 Rule 1 of the Code, to manage the suit properties as detailed in the said petition. On 6th of October, 1969, the then learned Subordinate Judge, ordered for the appointment of a Receiver and by his order dated the 7th of October, 1969 Sri P.K. Mishra, Deputy Commissioner, Hazaribagh, was appointed as an ad interim Receiver who took over charge of the properties on 10th October, 1969. By order dated 14th March, 1970, the State of Bihar was appointed the Receiver with all the powers as detailed in the writ of appointment. The different areas of Kedla Jharkhaud Colliery were put in the charge of the Receiver. For the purpose of efficient functioning of different contracts and despatch of coal from the different collieries the road connecting the different areas had to be repaired and maintained by the Receiver. The then nominee of the State of Bihar who was the Receiver on behalf of the State got a tender notice issued through the Superintendent of collieries under reference dated 24th of May, 1972, inviting sealed tenders for supplying 40 trucks first class morrum for road repairs and maintenance work. The specific condition in the tender notice was that the morrum was to be dumped along the road 100 Ft. apart and the rate was to be quoted for 100 oft The tender notice is marked as Annexure '1' to the application filed in this Court. Bhagwati Singh, the sole opposite party, submitted his tender for the supply of stone boulders and morrum. Under letter dated 29th July, 1972, Shri B. Roy, Superintendent, under the Receiver gave a work order to the opposite party to supply stone boulders and morrum of such quantity as inducted at road side and the ad hoc rates were fixed till the tenders were finalised. The supply order given to the opposite party is marked as Annexure '2' to the application. Thereafter, the tender of opposite party was accepted, being the lowest rate offered. The work order dated the 8th August, 1972, is marked as Annexure '3' to the application. The opposite party began to supply morrum and boulders from time to time after receipt of the work order. The materials supplied by him were duly measured by the Surveyor and the measurements were noted in the Measurement Book on 15th October, 1972 and 18th December, 1972. The measurement was done in presence of the representative of opposite party and the Measurement Book was duly signed by the Surveyor, the Superintendent of collieries and the representative of the opposite party. It was further stated in the application filed by the petitioner that the payments as per the Measurement Book, were made by the opposite party except some matters of dispute raised by another contractor, namely Mr. D.P. Jais-wal. The dispute was also decided by the superintendent of the Colliery and payments were made accordingly to the opposite party. On 3rd February. 1973, the opposite party filed a petition before the then learned Subordinate Judge praying) for directing the authorities concerned to make payment to him at an early date. The opposite party's total claim mentioned in the petition was of Rupees 18,226.00. On receipt of the said petition of opposite party, the court directed the Receiver to file rejoinder by 19th February, 1973. The court also directed the Receiver to submit his report against the allegations made by the opposite party in his petition. On 19th February, 1973, the rejoinder and the report were filed, after obtaining the report of the Superintendent of collieries concerned. The Superintendent concerned had reported to the Receiver that there was no dues outstanding in the name of opposite party. However the Receiver prayed for directing the opposite paryt to appear before the agents for settlement of his dues. The opposite party prayed for sending all papers, i.e. the Chalans to the agent for verification and report. The court, by its order dated 19th February, 1973, directed the opposite party to appear before the Receiver for settlement of his dues. On 17th May, 1974, the opposite party again filed a petition stating therein that he had not received the payment and prayed the court to get the payment of Rs. 18,226.00 made to him altogether with interest thereon. Thereupon, the court directed the Receiver on 18th of May, 1974 to report. The Receiver submitted his rejoinder on 17th June, 1974, in which it was asserted that there was no outstanding dues of the opposite party as the Superintendent had reported that the payment for supply, as claimed by the opposite party, had already been made to him on the basis of measurement, and the Receiver prayed for rejecting the petition of the opposite party. At that point of time, the matter was heard by Shri J.P. Singh, the then learned Subordinate Judge, who was pleased to pass an order dated 16th July, 1974. A true copy of the said order is marked as Annexure '4' to the application. It will be relevant to quota in extenso paragraph 13 of his order which reads thus:--

(3.) The coal mines authority, after receipt of the court's direction, wrote letters to the Receiver for certain clarifications, but the court, however, by order dated 21st of December, 1974, directed the Receiver to pay the amount immediately without examining the correctness of the accounts and to report by 23rd December, 1974. Thereafter, the petitioner filed a petition on 23rd of December, 1974 before the court praying therein that direction for the payment within the specified time should be stayed, as the petitioner wanted to move the High Court in revision. On the application of the petitioner, time till 16th of January. 1975 was granted. However, against the said order, the petitioner did not move the High Court. Subsequently, the Receiver could get the measurement book from the coal mining authority and reports of the Superintendent. Surveyor and Road Supervisor in respect of the supply of raw materials by the opposite party. The Receiver then filed a petition on 2nd January, 1975, before the court annexing the copies of measurement book, report of the Superintendent, Surveyors and others. In the said petition, it was prayed for recalling the order dated 21st of December, 1974 passed by the court. The court was, however, pleased to recall the said order dated the 21st of December, 1974, but instead of giving opportunity to the Receiver to verify and to make payment after the receipt of the measurement book from the coal mining authority, the impugned order dated 7th of April, 1975, was passed.