SANTU PRASD DAS Vs. EASTERN COAL FIELD LTD

JUDGEMENT

(1.) Both the appeal (F. A. No. 328 of 1989 P and F. A. No. 442 of 1989) have arisen out of the judgment and decree dated 15-5-1989 passed in Money Suit No. 40 of 1987 whereby and whereunder the learned Subordinate Judge I, Deoghar dismissed the suit. Money Suit No. 40 of 1987 was filed for recovery of Rs. 14,94,465.65 paise due to non-payment of Bills in respect of agreement Nos. 4 and 7 of 1978 in respect of Chiltra Colliery and agreement Nos. 5 and 6 of 1982 in respect of Lalmatia Colliery and interest was also claimed at the rate of 12% per annum together with temporary injunction restraining defendant No. 7, from getting any certificate of attachment for the alleged arrears with the plaintiff and also for mandatory injunction directing the defendant Nos. 1 to 6 to pay the defendant No. 7 the arrears as per agreement.

(2.) The case of the plaintiffs in brief is that plaintiff No. 1 Santu Prasad Das took contract work for construction of office building and N. H. S. quarters in Chitra Colliery from the defendant No. 1 Eastern Coal Field Limited and entered into agreement as per agreement No. 4 and 7 of 1978. It is alleged that during the subsisting period of the contract work, there was some dispute as to the enhancement of rate and other damages and to settle the matter, an arbitration case vide Title Suit No. 83 of 1979 was filed in the learned Court below and during the pendency of the arbitration proceeding, the plaintiff No. 1 who is appellant here, completed the aforesaid work to the satisfaction of the defendant No. 1 and constructed buildings were taken in possession by defendant no. 1 respondent and plaintiff No. 1 was paid running accounts bills but final bill and security money were not paid to him for which, he claims to be legally entitled. It is further alleged that defendant No. 1 represented to the plaintiff that the matter of payment will be settled if the plaintiff takes up the work at Lalmatia Colliery and entrusted the contract work for the construction of N. H. S. quarters at Lalmatia to plaintiff No. 1 for himself and on behalf of the plaintiff No. 2 vide agreement Nos. 5 and 6 of 1982 and the plaintiff accordingly constructed the building at Lalmatia Colliery also under the aforesaid contract, for which he was paid running account bills of Rs. 10,47,121.99 paise. It is further alleged that while construction was going on, some dispute of public nature arose there and the public dismantled the boundary wall of N. H.S.quarters and work was ultimately stopped. It is further alleged that after settlement of the matter, the plaintiffs were noticed by the defendant to complete the balance work and the plaintiff immediately completed the work.

(3.) In arbitration proceeding vide Title Suit No. 83 of 1979, the arbitrator made an award of Rs. 1,59,560/- in favour of the plaintiff No. 1 which caused annoyance to the defendant No. 1 and, the plaintiff no. 1 submitted to the Court to pass decree of the said amount against the defendant No. 1 but defendant No. 1 objected to the same. The plaintiffs submitted bills completed N. H. S. quarters to the defendants and demanded payment of final bill and earnest money but on account of the aforesaid award, the defendants withheld the payments. It is further alleged that defendants assured the plaintiffs that entire arrears will be cleared off if the plaintiff withdraw his petition for passing the decree against the defendant No. 1 and accordingly defendant no. 1 withdrew the petition. Thereafter a joint measurement was taken under the instruction of the General Manager of Lalmatia Colliery and the Bills were passed and kept in the office since January 1985 but has not been paid to the plaintiff till today. On the other hand, State Bank of India, Deoghar arbitrarily and illegally filed a false requisition for certificate and the same is pending before the District Certificate Officer and the Bank has further illegally forfeited the deposits of the relations of the plaintiffs and without making defendant No. 1 a party, is persuading issuance of attachment of immoveable properties of plaintiffs. Thereafter plaintiffs filed a petition before C. W. J. C. No. 627 of 1987 before the Patna High Court and the Court was pleased to direct the defendant No. 1 to look into the grievance of the petitioner and inform them why payment in respect of their bills have been withheld. It is further alleged that Advocate's notice was also given to the defendant No. 1 but to no effect. Defendant No. 2 misrepresented to the plaintiff No. 1 and fraudulently induced him to withdraw the award case putting him to a loss of Rs. 1,59,560/- and further withheld the final bills of both Chitra and Lalmatia Colliery and, therefore, this suit have been filed.