STATE OF BIHAR Vs. RAM PRAVESH RAI

JUDGEMENT

(1.) The defendants no. 1 to 8 have filed this first appeal against the judgment and decree dtd. 27/11/2001 passed by Sri Damodar Pandey, the then learned Ist Sub-Judge, Siwan in Money Suit No. 14. of 2000 whereby the learned court below decreed the plaintiff respondent Ist set 's Money Suit. The plaintiff respondent Ist set Ram Pravesh Rai filed the aforesaid Money Suit for recovery of Rs.09,07,603.00 the principal amount with interest alleging that the plaintiff is a registered contractor under the Water Resources Department, Govt. of Bihar, Patna. The defendants no. 1 to 8 are the State Government and its officers and the defendant no. 9 is an agency of the State Government and all the defendants are State within the meaning of Article 12 of the Constitution of India. Under National Water Management for reclamation of the lost irrigation potential in different irrigation scheme of the country, the Government of India entered into an agreement with the World Bank under I.D.A. scheme in 1986-87. The State of Bihar participated in this project for special repair to remodeling and modernization of Hatwa Branch Canal, the estimated cost of which was nearly Rs.20.00 crores of rupees with an estimated irrigation of lost potential of nearly 70,000 hectares. The schedule time of the special repair works of Hatwa Branch Canal was 1993. As the progress of the work was very slow and on being approached by the State of Bihar and the Central Government, the World Bank was pleased to extend the schedule period of completion of this work of special repair up to March, 1995. The special repair work of Hatwa Branch Canal of R.D. No. 135 to R.D. No. 175 is a piece of project costing nearly 0.4% of the project costs. The work relating to special repair of Hatwa Branch Canal was allotted to the Bihar State Construction Corporation, defendant no. 9, vide letter no. 57 dtd. 19/1/1993 by the State of Bihar for which State of Bihar entered into contract with the aforesaid Corporation in Form F-2 dtd. 30/11/1993. It is prevalent practice that the Executive Engineer Incharge of work will issue the work order to its contractor only when pre-sec. management has been taken in the level book and the same has been brought forward in the measurement book and thereafter, working cross sec. was drawn up on graph sheet. The presec. management was done from 3/12/1993 to 15/12/1993 in the level book and the same was brought forward to the measurement book and thereafter, working cross-sec. were drawn up on the graph sheets. The aforesaid work was done jointly by Executive Engineer incharge of works along with the Junior Engineer, and S.D.O. Incharge of works with S.D.O. and Junior Engineer quality control which took a considerable time. The Executive Engineer Incharge of work vide letter no. 2095 dtd. 31/12/1993 issued work order in favour of Corporation and accordingly, he made correction in the bid of contract of the commencement of work as 31/12/1993 in place of 30/11/1993. On receipt of the aforesaid work order the Corporation allotted the work to the plaintiff who is a petty contractor under the forms of contract and it was agreed in between the parties that the Corporation will made payment for the work done to the plaintiff on the receipt of the money from the State Government. The plaintiff completed the work within stipulated period i.e. by 30/4/1994. The part sec. measurement was done in between

(2.) 05.1994 to 12/5/1994 in which the Executive Engineer, Junior Engineer and S.D.O. participated. Thereafter, the same was brought forward in the measurement book and then cross sec. were prepared in the graph sheets. The S.D.O. incharge of the work prepared the Bill and sent the same to the Executive Engineer incharge of works Sec. . The Executive Engineer incharge sent the record to the Executive Engineer quality control who examined the correctness of the procedure of the measurement and being satisfied with the procedure of the measurement countersigned on the measurement book on 25/11/1994. The work of turfing on the bank of canal were done earlier but the measurement of the same could not be taken as there was no sufficient growth of grass. The measurement of turf was done on 20/7/1994 which was checked 100 % by the S.D.O. incharge of works who prepared the final Bill of Rs.09,07,603.00 and submitted the same to the Executive Engineer incharge of work for payment and the same was approved by the Superintending Engineer and Chief Engineer, Water Resources Department, Govt. of Bihar. The Water Resources Department, Govt. of Bihar allotted funds to the Corporation for making payment to the petitioner but the same was stopped by the Chief Engineer Water Resources Department, Siwan vide its letter no. 251. dtd. 31/3/1995 in order to fulfill the wishes of the Minister Incharge of Water Resources Department, Govt. of Bihar. The plaintiff waited for about one year for payment of his Bill but when he did not receive the same, he filed C.W.J.C. No. 5909 of 1996. before the High Court, Patna which was disposed of vide order dtd. 5/8/1997 with a direction to the plaintiff to file a representation within one month to Secretary, Water Resources Department who was to make necessary inquiry from the office of Corporation. It was also observed that if any liability would be found, the State of Bihar will release the fund in favour of the Corporation and the Corporation will make the payment to the plaintiff within one month from the date of receipt of the fund. The plaintiff made representation to the Secretary Water Resources Department, Govt. of Bihar on 10/8/1997 and the Joint Secretary wrote a letter dtd. 28/8/1997 to the Chief Engineer Water Resources Department, Patna for his comment who after making inquiry recommended for making payment. The Managing Director of the Corporation also gave reply vide letter dtd. 11/9/1997 to the letter of Joint Secretary, Water Resources Department Govt. of Bihar admitting the claim of the plaintiff and requested to release the fund for making payment to the plaintiff. When the plaintiff did not receive money, he filed a contempt petition vide C.W.J.C. No. 3483 of 1997 for violating the order of the High Court passed in C.W.J.C. No. 5908 of 1996. The Secretary, Water Resources Department, Govt. of Bihar instead of releasing the fund constituted a special liability committee with its sole motive to deny the claim of the plaintiff which vide its recommendation dtd. 27/11/1997 rejected the claim of the plaintiff then the plaintiff filed C.W.J.C. No. 915 of 1998. The appointment of liability committee by the defendant was made against the terms of the contract and there was no terms in the contract that in case of dispute regarding payment liability committee will be constituted rather there was a term that in case of dispute the matter will be finally decided by the Superintending Engineer. The report of the liability committee is based on surmises and conjectures and against the report of Junior Engineer, S.D.O., Incharge of work, Executive Engineer, Superintending Engineer and Chief Engineer. There is no dispute that the plaintiff has not completed the work assigned to him by the Corporation as all concerned officer of the State Government as well as the Corporation have confirmed and thereafter, a cheque was issued in favour of the Corporation for payment to the plaintiff which was stopped in order to fulfill the wishes of the concerned Minister, even after the order passed by the High Court in C.W.J.C. No. 5909. of 1996, the concerned authorities of the State Government as well as Corporation have admitted the claim of the plaintiff and approved the payment of the said amount to him. C.W.J.C. No. 915. of 1996 was also disposed of on 23/2/1999 with observation. The plaintiff again moved L.P.A. No. 1451 of 1999 wherein vide order dtd. 10/4/2000 it was observed that the proper remedy is to pursue the matter before the Civil court. Thereafter, within the time allowed in L. P.A. No. 1451 of 1999 the plaintiff sent the notices under Sec. 80 C.P.C. and thereafter, filed the suit. The plaintiff has prayed that the amount invested by the plaintiff is for business purpose, the amount payable by the defendants to the plaintiff is of commercial transaction, hence, the defendants are liable for payment of amount with interest at commercial rate as fixed by the Reserve Bank of India. 2. The defendants no. 1 to 8 filed joint written statement stating therein that the suit is not maintainable, court fee paid is not sufficient and the suit is not properly valued. The plaintiff of the suit has no concern directly with these defendants. The defendant no. 9 has filed the suit which ought to have been filed by the Corporation defendant no. 9 as the agreement is not executed directly in between the plaintiff and the defendants no. 1 to 8. The Bihar State Construction Corporation entered into an agreement to execute special repair work of Hatwa Branch Canal on 28/11/1993 and the Executive Engineer, Saran Canal Division Mairwa issued work order vide no. 2095 dtd. 31/12/1993 with a target to complete the work by 30/4/1994. The pre-level of the Canal was taken from 3/12/1993 to 15/12/1993. The department entered into the contract with the Construction Corporation only and the Department is not concerned whether the Corporation executed the work with the help of any petty contractor. The liability committee constituted was special one for examining the claim of the plaintiff only, hence, the question of plan and non-plan does not arise. The Department within the competency has constituted the committee to examine the genuineness of the claim before the payment. The Committee was constituted by Government of Bihar vide letter no. 291. M. B. 81-154-97-1223 dtd. 25/9/1997 which comprises Chief Engineer, Siwan, Superintending Engineer, Design Circle Siwan, flying squad circle no. 2 Patna and the Executive Engineer was also the invitee. The Committee has not given finding on surmises and conjectures. The Committee within his power examined the full fact with the relevant records and did not recommend for payment. The High Court has not given any positive direction for payment and as such the suit is fit to be dismissed with cost.

(3.) On behalf of defendant no. 9 separate written statement has been filed challenging the jurisdiction of the court as there was terms and conditions of the agreement entered in between plaintiff and defendant no. 9 with the jurisdiction to decide any dispute is vested to Civil Court, Patna. The plaintiff is entitled for a sum of Rs.08,15,963.00 out of the claim amount. The rest amount is the amount of Corporation overhead. The claim of the plaintiff has been admitted by this defendant. The plaintiff has done the work under the allotment made by this defendant as petty contractor. The Government of Bihar allotted the fund to Saran Canal Division, Mairwa for which a cheque was issued for the amount in the name of Corporation but ultimately the payment of cheque to Corporation was ordered to be stopped by the Government of Bihar, thus, no payment was made to Corporation, though the Corporation by writing letter requested for release of the amount mentioned above. The Managing Director vide letter no. 56 dtd. 11/9/1997 has requested the Joint Secretary, Water Resources Department, Patna for the payment which had been stopped. The claim of the plaintiff was denied by the Secretary, Water Resources Department,Patna. Other facts have been admitted by this defendant. This defendant has prayed to decree the suit.