Hindusthan Architects Pvt. Ltd. vs Kolkata Metropolitan Development Authority

J. Bhattacharya, J.—This First Appeal is directed against the judgment and decree dated 31st January, 2007 passed by the learned Civil Judge, Senior Division, 9th Court at Alipore, in Money Suit No. 9 of 2002 at the instance of the plaintiff/appellant. The plaintiff filed the said suit for recovery of its dues and compensation by way of damages on account of breach of contract by the defendant amounting to Rs. 1,26,55,827/- on different heads. Since in course of hearing of this appeal, Mr. Ghosh, learned Advocate, appearing for the plaintiff abandons all other claims of the plaintiff on different heads excepting the claim for refund of security deposit amounting to Rs. 50,000/; this Court does not think it necessary to consider the justifiability of those abandoned claims of the plaintiff on different heads. We thus restrict our consideration to the legality of the plaintiff''s claim which it made on account of refund of security deposit.

Be it mentioned that deposit of security money amounting to Rs. 1,27,843.21.p by the plaintiff with the defendant in pursuance of the contract was not specifically denied by the defendant in its written statement. Though the plaintiff claimed that security deposit amounting to Rs. 1,27,843.21.p was deposited with the defendant but in course of evidence, the plaintiff''s witness being P.W-1 admitted that the plaintiff has received about 75% of such security deposit from the defendant. He further stated in his evidence that rest of the security deposit has not yet been refunded to the plaintiff. Neither the plaintiff''s witness was effectively cross-examined on this point nor the defendant succeeded in establishing by evidence that nothing is due and payable to the plaintiff on account of its claim for refund of security deposit or the entire security deposit was refunded to the plaintiff.

If this part of the plaintiff''s evidence is believed then we find that a sum of Rs. 31,960/- still remains due and payable by the defendant to the plaintiff.

The suit was ultimately dismissed by the learned Trial Judge on 31st January, 2007 by holding, inter alia, that the plaintiff''s claims are barred by limitation. The learned Trial Judge also found that the plaintiff failed to establish its claim during trial.

However, the learned Trial Judge while considering the Issue Nos. 3, 7 and 8 held that the plaintiff''s claim for refund of balance security money can be allowed subject to limitation. Since the learned Trial Judge ultimately found that the plaintiff''s said claim is barred by limitation, the relief which the plaintiff claimed for refund of the said security money was also not allowed by the learned Trial Judge.

Being aggrieved by the said judgment and decree, the instant appeal was filed by the plaintiff/appellant before this Court.

In connection with this appeal an application for giving additional evidence was taken out by the plaintiff/appellant and the said application having been allowed by this Court, the suit was sent back to the learned Trial Judge for rehearing on remand under the provision of Order 41 Rule 25 of the Code of Civil Procedure.

Thereafter the additional evidence was recorded in the said suit. The completion certificate issued by the Executive Engineer dated 23rd September, 1999 was admitted into evidence and relying upon the said additional evidence, the learned Trial Judge ultimately came to the conclusion that the suit was not barred by limitation.

The defendant/respondent has not challenged the said judgment of the learned Trial Judge passed on 29th August, 2011. The defendant thus accepted the findings of the learned Trial Judge on the point of limitation.

We have already indicated above that the learned Trial Judge while disposing of the suit before remand held that there cannot be any reason why the defendant should not be directed to refund the balance security money to the plaintiff, provided the suit of the plaintiff in this respect is found to have been made out within the period of limitation. This part of the findings of the learned Trial Judge has also not been challenged by the defendant.

In such view of the facts, we have no hesitation to hold that the plaintiff''s claim to the extent of refund of the balance security money by the defendant cannot be denied as the said issue was ultimately decided by the Learned Trial court in favour of the plaintiff and the findings which were so arrived at by the Learned Trial Court on such issue attained its finality having not challenged by the defendant in appeal.

Accordingly, we dispose of this appeal by directing the defendant to refund the balance security money amounting to Rs. 31,960/- to the plaintiff together with simple interest @ 6% per annum from the date of filing of the suit i.e. 6th June, 2002 till realization thereof within one month from date.

In default, the plaintiff will be at liberty to realize the said amount by executing this decree in accordance with law. The plaintiff''s claim in the suit is thus allowed in part.

The judgment and decree passed by the learned Trial Judge which is impugned in this appeal is modified accordingly.

The appeal is thus allowed to the extent as indicated above without costs. Urgent photostat certified copy of this order, if applied for, be furnished to the applicant as early as possible.

Arindam Sinha, J.

I agree