District Board of 24 Parganas vs P.K. Bhattacharya and Company

Arun K. Mukherjea, J.—This is an appeal against a judgment and decree dated September 26, 1963, of the Subordinate Judge First Court, Alipore, in a suit for recovery of money due for work done. The facts of the case are as follows: One Prafulla Kumar Bhattcharjee was at all material times carrying on the business of a general merchant and contractor under the name and style of M/s. P. K. Bhattacharjee & Company He was the sole proprietor of the said business undertaking. Since April 1, 1958, however, the said Prafulla Kumar Bhattacharjee ''converted and merged'' the said business into a partnership firm. Even after this the business continued to be carried on under the name and style of M/s P. K. Bhattacharjee & Company This partnership firm, is the Plaintiff firm which claims that by reason of an agreement by and between itself and Prafulla Kumar Bhattacharjee it is entitled to all debts and moneys due and owned to the said Prafulla Kumar Bhattacharjee for all works done by him before the formation of the said partnership. By a letter dated October 17, 1952, the Defendant No. 1, the District Board of 24-Parganas (hereinafter referred to as the said Board) gave Prafulla Kumar Bhattacharjee (whom we shall hereinafter refer to as the contractor) a contract for doing certain special repair works to Gopalpore Bridge on Sikra Haroa Road, fifth mile, in the district of 24-Parganas. The stipulated remuneration was, the Plaintiff alleges, ''35 per cent above the estimate of Rs. 20,885 as prepared by the Board'' for the job. During the execution of that job the contractor, it appears, did certain works which were not included in the original estimate but which, according to the Plaintiff, were essential for making the job complete and effective from an engineering point of view. Under instructions from the Board received through the District Engineer of the Board the'' contractor did this additional work in good faith. The entire job was completed during 1953-54. The Board made an interim part payment of Rs. 20,500 to the contractor during the progress of the work and also supplied him with certain departmental materials which would be valued at Rs. 497. After the work was completed the contractor waited for a reasonable time expecting the Board to have a final bill prepared for the job. The Board, however, did not do this, and after waiting for a long time the contractor made his own assessment of the work done for the entire job which showed that a total sum of Rs. 46,000 was due to him from the Board. By a letter dated November 11, 1954, the contractor asked the Board to pay him the balance outstanding sum of Rs. 25,000 after giving credit to the Board for the interim payment made as well as for the value of the materials supplied. The Board did not make the payment even after several reminders. The Plaintiff alleges that, in the meantime, the Board prepared a revised estimate for the works done by the contractor, including the aforesaid supplementary works and that the District Engineer after checking and scrutinising the estimate recommended for the Board approval, payment of a sum of Rs. 32,000 to the contractor together with further 35% of the aforesaid sum as per terms of the contract for the job. It is further alleged that the Board referred the estimate to the Superintending Engineer of Presidency Circle, for his opinion and that the said Superintending Engineer revised the estimate and approved the payment of Rs. 30,000. The Plaintiff contends that since the estimate had passed, for Rs. 30,000 the contractor became entitled to a further 35 per cent on that sum according to the terms of the contract, i.e. to say, the contractor became entitled to the sum of Rs. 10,500 over and above a sum of Rs. 30,000. Altogether, therefore, the contractor, according to the Plaintiff, became entitled to a total sum of Rs. 40,500. Giving credit to the Board for the payment already made, i.e. to say, for Rs. 20,500 as well as the value of materials, namely Rs. 497,. the balance sum of Rs. 19,503 remained due to the contractor. It is stated that by a letter dated February 11, 1957, addressed to the Administrator of the said Board which by that time had been superseded under an order of the State of West Bengal, the contractor made demand for payment of the sum of Rs. 20,000 more or less. The Administrator, who is the Defendant No. 2 in'' the present suit, neither made any payment nor sent any reply to the contractor''s letter. Subsequently, however, the Secretary of the Board by a letter dated June 10, 1957, informed the contractor that the matter was under active consideration of the Board. Nothing was, however, done to implement this assurance and the contractor came to know after some time that, in the meantime, the Superintending Engineer had made a fresh scrutiny and scaled down the revised estimate from Rs. 40,500 to Rs. 36,850. On the basis of this assessment after giving credit to the Board for the payments made and the value of the materials supplied a sum of Rs. 15,859 remained due and owing to the contractor. On or about April 1, 1958, the contractor converted his business into a partnership concern and it is contended that the present Plaintiff, namely the partnership firm, became entitled to the sum of Rs. 15,859 from the Defendant Board. A letter dated October 8, 1958, was sent to the Administrator of the Board demanding an estimated sum of Rs. 20,000 with interest calculated on that sum from the date of completion of the contracted work at 12 % per annum. Thereafter, the Plaintiff served a notice dated September 28, 1959, u/s 80 of the CPC upon the Secretary to the Department of Local Self-Government of the State of West Bengal demanding payment of Rs. 16,800 being the balance of the contractor''s dues on the basis of the final scrutiny of the Superintend ding Engineer. On October 9, 1959, the Plaintiff received a letter from the Secretary of the Board in which the Plaintiff was informed that the Plaintiff''s claim for the higher amount on the work of special repairs to Gopalpore Bridge had been rejected by the Board, after due consideration. The Plaintiff contends that the Board is liable to pay a sum of Rs. 15,859 being the balance amount for the work done by the contractor as aforesaid as compensation for or alternatively as damages suffered by the Plaintiffs together with interest on the said sum at the rate of 2 % per annum from October 17, 1958, upto September 30; 1959, aggregating the total sum of Rs. 18,666. The Plaintiffs filed the present suit ''against the Defendant Board for Rs. 18,666 or alternatively for enquiry into the damages suffered and costs and interests.

The main contentions of the Defendant Board in their written statement are as follows:

(1) The Plaintiffs'' claim is barred by limitation.

(2) The Plaintiff firm has no cause of action against the Defendant as there was no privacy of contract between them.

(3) No notice of claim having been served upon the Administrator of the "Defendant Board as required by. the Bengal Local Self Government Act of 1885 the suit is liable to be dismissed in limine.

(4) The Defendant Board never issued-any instruction to the contractor for additional works. Nor did the Defendant accept such additional items of work from the contractor. Such work if done was done by the contractor without any authorization or work order from the Defendant Board and "the alleged work was totally incapable of ascertainment or verification, when the revised estimate for the additional work was sanctioned by the Defendant by its resolution No. 2350 dated October 27, 1956." As such the Defendant Board contends that there is no liability on the part of the Defendant to make any payment for such work. It is admitted that some work was done by the contractor but that the work was never sanctioned nor accepted by the Board and the contractor did the work without any authority.

(5) There was never any proper contract entered between the parties for the execution of the additional works.

(6) The conversion of the business of the contractor into a partnership firm is not recognised.

(7) The Plaintiff is not entitled to any decree. On these pleadings the following issues were settled for determination:

(1) Has'' the Plaintiff got any cause of action against the Defendant No. 1 ?

(2) Were the ''additional works'' alleged to have been executed by the contractor concerned, approved for execution or accepted by the Defendant No. 1, at any time ?

(3) Had the contractor concerned accepted payment in part, against the finally settled and accepted account for the work done, and accepted, as alleged ?

(4) Is the Plaintiff entitled to receive and/or recover any amount from the Defendant No. 1, as alleged ?

(5) Is the suit bad for non-joinder of parties ?

(6) Is the Plaintiff entitled to claim or receive any interest ?

(7) What relief, if any, is the Plaintiff entitled to ?

Three witnesses were examined on behalf of the Plaintiff and one On behalf of the Defendant Board. The learned Subordinate Judge after hearing the oral evidence and considering the documents filed in the suit gave a decree in favour of the Plaintiff for Rs. 15,859 with costs against the Defendant No. 1, The learned Judge, however, dismissed the suit against the Defendant No. 2, the State of West Bengal. The decree was to carry interest at the rate of 6 1/4% from the date of the decree till realisation.

The learned trial Judge in his judgment found that the Plaintiff had executed certain additional works. In coming to this finding the learned trial Judge obviously used the word ''Plaintiff'' to refer to the contractor. The learned trial Judge makes no difference between the contractor and the Plaintiff firm. On the question as to whether the contractor had executed additional works there seems to be very little doubt: there is a clear admission on behalf of the Defendant Board that the contractor had done some additional work. The evidence also supports this. Mozammal Hossain who happened to be the Vice-President of the District Board at the relevant time and Sanat Kumar Biswas who was the Overseer-in-charge of the work done by the contractor have given their testimony in support of this claim. The measurement "book (Ex. 3) also confirms the contractor''s claim to have done some additional work. Since the fact of the contractor having done additional work for the Board has been established the really important question in this case is as to whether the Plaintiff is entitled to payment for this additional work. On the strength of the resolution passed by the District Board on October 27, 1958, the learned trial Judge accepted the Plaintiff''s. contention that the Board has sanctioned the sum of Rs. 30,000 plus 35 % to be the contractor''s dues for the additional work. The matter was referred to the Superintending Engineer for clarification of certain figures. As to what happened after this Reference is not known. The Board alone can say as to what transpired after the Reference and since the Board had made no disclosure the learned trial Judge says that the inference is irresistible that the Superintending Engineer''s clarification went in favour of the contractor. Though the additional work was done on the basis of a verbal order in the beginning the absence of written authority is not considered vital by the learned trial Judge as the necessity of the repairs and also the factual execution thereof have been both conclusively established by the Plaintiff''s witnesses. According to the learned trial Judge, the Plaintiff is entitled to the amount claimed for execution of the additional work at least on the principle of Section 70 of the Indian Contract Act. The point of limitation, we are told, was not pressed by the Defendant Board. The learned trial Judge rejected the Defendant''s contention that since the contractor who executed the work has not transferred his claim against the Board to the partnership firm according to the provisions of Section 130 of the Transfer of Property Act with notice to the Defendant, the transfer was not binding against the Defendant. According to the learned trial Judge the partnership deed, namely Ex. 4, shows on the face of it that the contractor Prafulla Kumar Bhattacharjee did not by executing the document create any real or substantial change in his business relationship...what he did by executing this deed of partnership was to take his sons into this business retaining, however, all effective control over the business to himself and also major shares of the profits of the business. This new business is in substance his own business.

On this ground the learned trial Judge thought that there was no necessity at all for making any formal transfer of the actionable claim in favour of the Plaintiff firm. In other words, the learned trial Judge did not accept the partnership character of the business and held that no formal transfer of the claim to the ''ostensible partnership'' was required by law. The learned trial Judge rejected an argument made on behalf of the Plaintiff that the deed of partnership itself is to be regarded as a deed of transfer of the actionable claim.

The learned trial Judge rejects also the argument that the suit was not maintainable without a prior notice u/s 146 of the Bengal Local Self-Government Act. The learned trial Judge has allowed the decree for Rs. 15.859 and has rejected the Plaintiff''s claim for interest on the ground that there was no agreement entitling the Plaintiff to interest. The learned trial Judge has, however, allowed interest at the rate of 6 % from the date of decree till realisation.

The three controversies round which the arguments of the counsel on both sides centered at the time of hearing of the appeal before us arc as follows:

(i) Was the contractor entitled to payment in respect of the additional works ?

(ii) Is the Plaintiff firm entitled to sue for the contractor''s claims in the absence of a proper and valid assignment from the contractor ?

(iii) Was, the suit maintainable in the absence of a notice u/s 146 of the Local Self-Government Act ? We shall deal with these controversies one by one.

Mr. Mitter appearing for the Appellant argued that since the original contract did not cover the additional works and since no other contract was executed in respect of the additional works in compliance with the formalities necessary for a contract with the District Board, the contractor cannot make the District Board liable for any work that he might have done. It was contended that the District Board would not be bound to pay for any work or works done without a prior sanction of the District Board accorded in the manner prescribed by the statute. In this connection Mr. Mitter drew our attention to the following Rules of the District Board Manual made by the Government by a notification dated February 11, 1886, u/s 138A of the Bengal Local Self-Government Act (Ben. III of 1885). These form a part of pt. V. of the Rules under the said Act of 1885.

Rule 102:

Every contract made by, or on behalf of, any Board or union committee in respect of a sum, or involving a value, exceeding Rs. 50, shall be in writing, and shall be signed by the Chairman or Vice-Chairman of the Board, or by the Secretary, and one of the members of the union committee.

Rule 103:

Every contract or agreement entered into by any District Board in respect of a sum, or involving in value above Rs. 500, shall be sanctioned at a meeting, be in writing, be signed by the Chairman and two other members of the District Board, and shall be sealed with the common seal of such District Board. Unless so sanctioned and executed, such contract shall not be binding on the District Board.

Mr. Mitter also relied on Rule 53 and certain other Rules under the Act made under Clause (g), (1) and (n) of Section 138 of the Bengal Local Self-Government Act (Ben. Ill of 1885) by notification dated December 20, 1901, and subsequently amended by other two notifications dated March 18, 1912, and August 5, 1939. The Rule in its present form reads as follows:

Rule 53:

Whenever there is reason to anticipate that an estimate will be exceeded by more than 10 per cent of its total amount, a revised estimate shall immediately be prepared and submitted for the approval of the authorities whose sanction would be necessary if it were an Original estimate. When excesses occur at such an advanced period of the construction of a work as to render the submission of a revised estimate purposeless, the excess will be dealt with in a completion report in which details need only be given when the excess is above 10 per cent of the original estimate.

It is nobody''s case that the formalities prescribed in the above Rules have been observed when the order for the additional work was given to the contractor. It is on this ground that Mr. Mitter argued that the District Board cannot be made liable for any payment in regard to the additional work.

Mr. Mitter relied on certain decisions in support of his contention. He referred to a decision of this Court in Sitaram Gupta v. Corporation of Calcutta AIR IMG Cal. 18. In that case a suit was filed against the Corporation of Calcutta for a perpetual injunction u/s 54 of the Specific Relief Act. Sections 67 and 68 of the Calcutta Municipal Act provides that all contracts must be made by the Mayor or Deputy Mayor in the prescribed form and it was held in that case that it was only the Mayor and the Deputy Mayor who could exercise all powers of entering into contracts and that the power could not be delegated to anybody. It was further held that the Corporation could not be bound by any contract which was not in the form prescribed by Sections 67 and 68 of the Act. Bose J., who delivered the judgment in that case, relied on the celebrated case of H. Young of Company v. Mayor, and Corporation of Royal Leamington Spa (1883) 8 A.C. 517 and held that where a contract with a corporation has to be executed in a particular form, but the statutory provisions regarding the agreement have not been complied with, the agreement is invalid and not binding on either party notwithstanding that there has been part performance of the contract. His Lordship further held that where a company or public body is incorporated or established by statute for special purposes only and is altogether the creature of statute, law, the prescription for its acts or contracts arc imperative and essential for their validity.

Mr. Mitter relied on this judgment strongly and stated that no valid contract executed in compliance with the formalities enjoined by the statutory rules seems to be subsisting in regard to the additional works. Besides, the District Board did not even authorise the execution of the works. Therefore, he argued, the District Board cannot be held liable for the works executed by the contract pursuant to the directions of certain officers of the District Board. Mr. Mitter pointed out to us that the District Board by its letter, of October 6, 1959, had rejected the claim of the contractor for a further amount in connection with the work of special repairs to Gopalpore Bridge (See Ex. 6(a) at p. 155 of the Paper Book). Mr. Mitter further argued that since there was no contract for the additional work executed by an- authorised person in accordance with the prescribed formalities whatever alleged contract is relied on by the contractor must be void and unenforceable, and will be incapable of subsequent ratification. Mr. Mitter relied on the authority of State of West Bengal v. B.K. Mondal and Sons A.T.R. 1962 S.C. 779 and the Full Bench decision of the Patna High Court in Hindustan Construction Co. Vs. State of Bihar, for the proposition that a contract made without complying with statutory formalities cannot be ratified at a subsequent stage by the competent authority. Mr. Mitter anticipated the argument that could be raised against him to the effect that even if the contract in question would be unenforceable an obligation would be imposed upon the District Board u/s 70 of the Contract Act to make compensation to the contractor who rendered services under the invalid contract. To this argument Mr. Mitter relied that no case has been made u/s 70 of the Contract Act in the plaint and that no issue was even raised on this point at the time of trial.

We are not quite impressed by this argument of Mr. Mitter, Even assuming that the additional work had been executed in pursuance of certain directions of the officers of the District Board without having gone through the formalities of executing a proper contract in accordance with the statutory rules and that the Plaintiff could not, in the circumstances, fall back upon a void contract for enforcing his claims there is no doubt that Section 70 would come to the rescue of the contractor. The plaint, it is true, does not specifically make out a case u/s 70 of the Indian Contract Act. Mr. Banerjee appearing for the Respondent frankly admitted this defect. But he submitted that para. 5 of the plaint- is a substantial pleading of a claim u/s 70 of the Contract Act. Paragraph 5 reads, as follows:

The said contractor took in hand the work contracted for and in the process of the execution of the said works it appeared that further works not included in the aforesaid estimate were essentially required to be done for making the job complete and effective from technical (engineering) point of view. Under instruction of the District Board received through its District Engineer the said contractor in good faith did all those additional works and the entire works were completed during 1953-54. During the progress of the works the Board made an interim part payment of Rs. 20,500 by cheque to the said contractor and also supplied him departmental materials worth Rs. 497.

One can perhaps spell out from the words ''in good faith'' an implication that the contractor expected the District Board to compensate him for the work done in such good -faith. The reference to the essential requirement of the work in order to make the contractor''s job complete and effective from the technical point of view can be construed perhaps as an averment on the part of the Plaintiff that the work was lawfully done and that the person for whom the work was done enjoyed the benefit of it. The reference to part payment by cheque could be likewise construed to be a contention that the work was not intended to be done gratuitously. In our opinion, we should construe para. 5 liberally. For this we rely on the decision of the Supreme Court in V.R. Subramanyam Vs. B. Thayappa and Others, . That was also a case where the contractor had made additional constructions to the building under circumstances similar to those in which the contractor in the instant case executed the additional work. The High Court of Mysore had in the case of Subramanyam held that the contractor had failed to prove the oral agreement pleaded by him. Even so, instead of dismissing the suit the High Court awarded compensation on quantum merit which had not been claimed by the contractor in his plaint. It was argued before the Supreme Court that the Plaintiff ought to succeed or fail on the case pleaded by him and not on- a cause of action not pleaded. The Supreme Court rejected this contention and held that if a party to a contract has rendered services to the other not intending to do so gratuitously and the other person has obtained some benefit, the former is entitled to compensation for the value of the services rendered by him. The Supreme Court did not hesitate to uphold the contractor''s claim even though there had been no clear pleading in the plaint of quantum merit or a claim u/s 70 of the Contract Act. Following this decision of the Supreme Court we� hold that mere absence of clear and express pleading in the plaint would not be sufficient to shut out the contractor''s claim for additional work. There is one special reason and in the ends of justice we should not permit a technical objection of absence of pleading to prevail against the contractor in the instant case. We find from the written statement of the District Board that there is no clear pleading there regarding the unenforceability of contract for noncompliance with the statutory formalities. In Kalyanpur Lime Workers Ltd. Vs. State of Bihar and Another, where as objection was taken to certain leases u/s 30 of the Government of India Act, the Supreme Court held that since such an objection involved investigation into the fact whether the draft lease had signature of the appropriate authority on behalf of the Government and the Plaintiff had no opportunity in the trial Court to produce necessary evidence to meet the point, the High Court was not justified in allowing the question to be raised at the time of arguments. In the instant case, if the District Board had clearly raised in its pleading an objection to the validity of the contract the Plaintiff would have had an opportunity to meet the point at the time of trial or in any event to plead and prove a case u/s 70 of the Contract Act. In this view of the matter, we think we should allow the Plaintiff to invoke the provisions of Section 70 of the Contract Act and since it is nobody''s case that the additional works had not been done or that the additional works were not useful to the District Board or that the contractor intended to do the works gratuitously, we must, in the facts and circumstances of the case, hold that the contractor was entitled to compensation for the services rendered by him to the District Board.

We now come to the question whether the Plaintiff firm can sue the District Board for the contractor''s claims. Mr. Mitter argued vehemently that no suit for compensation or damages can lie at the instance of the Plaintiff firm. The Plaintiff has framed its claim against the District Board in para. 10 of the plaint in the following language:

Thereafter on or about April 1, 1958, the Said contractor converted the said business into a partnership concern as aforesaid under the name and style of P. K. Bhattacharjee & Company, i.e. the present Plaintiffs, and the Plaintiffs in view of the said conversion and merger became entitled to the aforesaid sum of Rs. 15,859 in place and stead of the said contractor from the Defendant No. 1, the District Board of 24-Parganas.

Mr. Mitter relied on Section 130 of the Transfer of Property Act which provides as follows:

Section 130. (1) The transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing, signed by the transferor or his duly authorised agent, shall be complete and effectual upon the execution of social instrument, and thereupon all the rights and remedies or otherwise, shall vest in the transferee, whether such-notice of the transfer as is hereinafter provided be given or not:

Provided that every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as hereinafter provided) be valid as against such transfer.

(2) The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid, sue or institute proceedings for the same in his own name without obtaining the transferor''s consent to such suit or proceedings and without him a party thereto.

Exception--Nothing in this section applies to the transfer of a marine or fire policy of insurance or affects the provisions of Section 38 of the Insurance Act, 1938 (IV of 1938).

Mr. Mitter argued that there is no instrument in writing assigning the claim of the contractor to the Plaintiff firm. This contention of Mr. Mitter was sought to be met by the argument that the partnership deed itself was a deed of assignment. Paragraph 3(a). of that deed reads as follows:

The capital of the partnership business shall consist of all assets which stand to the credit of the said firm of Messrs. P. K. Bhattacharjee & Company, on first April, 1958.

It was argued that this in substance was an assignment of the contractor''s claim; The learned trial Judge rejected this plea by saying that this contention was not very appealing. He remarks further that an actionable claim of the amount would have required heavy stamp duty for transfer and since the partnership deed is only on a stamp paper of Rs. 20 it cannot be viewed as a deed transferring the actionable claim. The learned trial Judge was not quite correct in this particular assessment of the arguments advanced by the Plaintiff. An assignment of an actionable claim does not require any stamp nor does it require registration. In fact, mere expression of intention in writing is enough and no formal deed is necessary. All that the learned trial Judge should have considered was whether para. 3(a) of the deed is in essence a transfer of the claim. In any event, we are not concerned with the objection about the stamp duty raised by the learned trial Judge, for Section 3(i) of the Stamp Act saves us from that responsibility. Since the deed has already gone into evidence the question of sufficiency of stamp cannot be raised at this stage.

The learned trial Judge after rejecting the Plaintiff''s claim that the deed formed a substantial assignment of the contractor''s claim observes that this aspect of the matter is not fatal to the Plaintiff''s claim, because,, according to him, "it is found that there has been no transfer at all strictly speaking." This argument is almost unintelligible. If there has been no transfer then it is the contractor who alone can sue the District Board and the Plaintiff firm has no locus slaidi.

In our opinion, Mr. Banerjee is right in his contention that para. 3(a) of the partnership deed is enough to transfer the contractor''s claim to the Plaintiff firm. -In T.N. Seshachalam Naidu Vs. A. Venkatachalam Chetty and Others, it has bee held that where under the terms of an agreement in writing which had been given effect to, all the assets and liabilities of the concern were transferred, the transferee became entitled to the amount due under a promissory note which was in favour of the transferor concerned. As there was an agreement in writing evidencing the transfer, in such a case it was held unnecessary to consider the effect of Sections 130 and 137 of the Transfer of Property Act.

In our opinion, since the contractor transferred all his assets to the partnership firm at the time of executing the partnership deed that transfer will be taken as including all actionable claims standing to the credit of the contractor on that date. The contractor''s claim against the District Board u/s 70 of the Indian Contract Act was clearly an actionable claim and it has, therefore, in our opinion, been validly transferred to the Plaintiff firm by a written instrument in the form of the partnership deed. The objection of the Appellant that the Plaintiff firm has no locus standi to bring the suit, therefore, fails.

We now come to the last objection of the Appellant, namely,'' the objection that the suit is not maintainable in the absence of a notice u/s 146 of the Local Self-Government Act; There is no substance in this contention. Section 146 of that Act only provides that no action can be brought against the members of a District Board or their officers until after one month''s notice of the cause of action. That section has got nothing to do with a suit filed against the District Board. In the instant case, the suit was filed against the District Board of 24-Parganas which, of course, has now been replaced by the Zilla Parishad. Section 146 of the Local Self-Government Act is no bar at all to the institution of such a suit. The Appellant, therefore, fails in all its contentions. The appeal, therefore, must fail.

Turning to the cross-objections in which the Respondent claims that the learned Judge should at least have given interest pendente lite u/s 34 of the Code of Civil Procedure, we accept this contention of the Respondent and hold that the learned Judge should have given interest at the rate of 6 % per annum from the date of the suit to the date of the decree.

In the aforesaid circumstances we pass the following order:

The appeal is dismissed and the cross-objection is upheld in part. We confirm the decree of the learned Judge with this modification that the principal decrial amount of Us. 15,859 should carry interest at the rate of 6 % per annum from the date of filing of the suit till realisation. Considering all the facts and circumstances of the case we do not make any order as to costs whether in the appeal or in the cross-objection.

M.M. Dutt, J.

I agree.