UNION OF INDIA Vs. KALYAN PRASAD AGARWAL

JUDGEMENT

(1.) THE appellant -defendant (hereinafter 'the defendant -Railway) has filed this first appeal under Section 96 CPC against the judgment and decree dated 11.12.1993, passed by the Additional District and Sessions Judge No.3, Kota in Civil Suit No.43/1990 whereby the respondent -plaintiff's (hereinafter 'the plaintiff') money suit for Rs.1,20,369.74/ - has been decreed.

(2.) THE facts of the case are the plaintiff on 15.10.1985 filed a suit against the defendant -Railway for recovery of money due and outstanding for the execution of contract No.49 entered into between the parties to the suit on 22.11.1979 whereunder the plaintiff was required to and had made the contracted construction. It was submitted by the plaintiff that he had earlier entered into a contract No.13 with the defendant -Railway on or about 21.11.1974 for supply of earth for a railway track being laid by the defendant -Railway. It was submitted that a dispute with regard to contract No.13 dated 21.11.1974 had arisen between the parties whereunder in terms of the provisions of the contract an Arbitrator was appointed and reference of the dispute between the parties made to him. It was submitted that the plaintiff filed his claim before the Arbitrator and the defendant -Railway while opposing the claim also laid their counter claim. At the conclusion of the arbitration, the Arbitrator vide his award dated 18.02.1983 awarded a sum of Rs.1,14,979/ - as due and payable by the defendant -Railway to the plaintiff in respect of contract No.13 dated 21.11.1974. It was submitted that in respect of contract No.49 duly executed between the parties on 22.11.1979, no dispute of any nature arose between the plaintiff and the defendant -Railway. In fact the contract was duly executed and in 1983 even monies retained by the defendant -Railway as security released on satisfaction of performance. Yet in respect of running two bills qua contract No.49 dated 22.11.1979, aggregating to Rs.94,049.74/ -, payment was not made for the purported reason of the defendant -Railway seeking to allegedly adjust the said amount against the claim of outstandings dues from the plaintiff under contract No.13 dated 21.11.1974. It was submitted that the amount retained unlawfully by the defendant -Railway pertaining to the work executed under contract No.49 dated 22.11.1979 between the parties was wholly illegal and arbitrary and unjustified. The sum of Rs.94,049.74 along with interest @ 12% from the date the amount become due till the date of the filing of the suit computed as Rs.26,320/ -, aggregating to Rs.1,20,369.74/ - was claimed. It was prayed that the money suit be decreed as prayed for along with pendente lite and future interest.

(3.) ON the pleadings of the parties, the learned trial court framed four issues which loosely translated in English are as under :