KARMA LODAY BHUTIA Vs. BIR BAHADUR RAI

JUDGEMENT

(1.) This Appeal under Order XL1, Rules 1 and 2 of the Code of Civil Procedure, 1908 is against the judgment and decree both dated 29.08.2017 passed by the Learned District Judge, East Sikkim at Gangtok in Money Suit No.11 of 2015 decreeing the suit in favour of Bir Bahadur Rai (The Plaintiff). The Plaint

(2.) Bir Bahadur Rai's case was that he and Karma Loday Bhutia (Defendant) were both contractors known to each other. Karma Loday Bhutia was entrusted with the contract to construct the Panchayat Ghar at Rakdong-Tintek. As Karma Loday Bhutia was unable to pursue the contract he executed an irrevocable power of attorney (exhibit-2) in favour of Bir Bahadur Rai. Thereafter, Bir Bahadur Rai commenced the construction of the Panchayat Ghar investing his own money and completed it. When he came to learn that Karma Loday Bhutia had received payments from the running bills he issued legal notice dated 30.03.2012 (exhibit-3) to Zilla Panchayat to stop payment. On 27.02.2013 the Department sanctioned the final bill slip of Rs. 7,89,000/- (exhibit-4) and handed over a cheque for the said amount to Karma Loday Bhutia in the presence of Bir Bahadur Rai. Thereafter, Karma Loday Bhutia issued two cheques i.e. State Bank of Sikkim's cheque dated 06.03.2013 for Rs.7,89,000/- (exhibit-5) and HDFC Bank's cheque dated 12.03.2013 for Rs.7,90,000/- (exhibit-6) to Bir Bahadur Rai. Both the cheques were dishonoured vide return memos dated 19.03.2013 (exhibit-7) and 15.03.2013 (exhibit-8). Although, Bir Bahadur Rai informed Karma Loday Bhutia about it he did not pay the amount due. He could not therefore make the labour payments for which the labourers complained to the Panchayat (exhibit-9). The President of the Panchayat issued letter dated 17.04.2013 (exhibit-10) to Bir Bahadur Rai informing him about it. Bir Bahadur Rai waited till March 2015 for payment and issued legal notice dated 23.03.2015 (exhibit- 11) to Karma Loday Bhutia. Thereafter, he filed the suit for recovery of Rs.15,79,000/-.

(3.) Karma Loday Bhutia disputed the execution of the irrevocable power of attorney. He denied he was not capable to pursue the contract work. He asserted that he had executed the contract work and completed it on 30.06.2011. Karma Loday Bhutia explained that the irrevocable power of attorney was executed by him as Bir Bahadur Rai had assured him that he had an enlistment of a Grade-B contractor but when he failed to produce it he refused to get it registered and cancelled it. Karma Loday Bhutia specifically denied that Bir Bahadur Rai had executed the work. He asserted that it was him who had executed the work after taking loans from friends, relatives and financial institutions. He denied issuing the two cheques in favour of Bir Bahadur Rai and asserted that he had procured the cheques deceitfully. He also stated that in fact the Panchayat had called him due to the complaint by the labourers after which he settled the dispute with them and drew a ,,milapatra. The Issues Framed