Ningayya Basayya Hiremath vs Hubli-Dharwad Municipal Corporation

S.N. Satyanarayana, J.

The plaintiff in O.S. No. 233/2003 and other O.S. Nos. 346/2003 to 351/2003, 32/2004, 36/2004, 206/2004 to 213/2004, has come up in these second appeals impugning the concurrent finding rendered by both the Courts below in dismissing his suits filed for recovery of money due for partial completion of civil construction work under various work orders issued by the first respondent and also for refund of Earnest Money Deposit (E.M.D.) and security deposit which is provided by him as guarantee for completion of the work entrusted to him under several work orders. The aforesaid suits were dismissed by common judgment dated 20.02.2009 passed by the Court of 1st Addl. Civil Judge (Sr. Dn.), Hubli and confirmed by the Court of 1st Addl. District Court, Hubli, by its common judgment dated 31.01.2011 passed in R.A. Nos. 81/2009 to 88/2009, 92/2009, 103/2009 to 110/2009.

Brief facts leading to these second appeals are as under:

Appellant in all these appeals is one Ningayya Basayya Hiremath, who is a registered TV Class Contractor with respondent Corporation. It is the case of the appellant that during the period 1999-2003 he was entrusted with civil construction work under various work orders for completion of several construction work within the limits of Hubli-Dharwad Municipal Corporation. It is the case of appellant that he accepted the said work order and commenced the work entrusted. When the said civil works were at different level of completion due to non payment of the amounts for the work completed, he was not able to continue the contract work. Hence, he issued a notice in respect of each of the work order that was issued to him calling upon the defendant to pay the amount for the work that was already carried out by him. In view of non payment of the same he stopped the work and filed the aforesaid suits and as well as other suits for recovery of the money towards the work that was completed by him with reference to various work orders issued in his favour. According to him in some of the cases he had raised running bill and the said running bills were cleared and payments were released in his favour. In respect of others no bills were raised by him but his demand for ad hoc payments was not considered.

In the said suits on service of notices, defendant entered appearance and took up defence that the plaintiff has not commenced work under any work orders and in respect of those where he had completed the work upto an extent where the running bills were raised they have honoured the same and subsequent to payment of first and second running bills under some of the work orders the remaining work is not taken up by the plaintiff-contractor. Therefore, the Corporation is not under any obligation to pay the amounts demanded in the legal notices and as well as in the suits filed for recovery of money. In the said suits defence was also taken that question of repaying the security deposit and also E.M.D. before completion of the work does not arise for the reason that security deposit and E.M.D. is to ensure that the plaintiff-contractor would complete the civil work to the satisfaction of the defendant Corporation and that the work which is completed by him would sustain for the period stipulated under the work order for a minimum period beyond the completion of the civil work referred to in each work order. In the instant case, when the work covered under the work order itself is not completed question of considering repayment of E.M.D. and security deposit does not arise.

With these rival pleadings all the suits went into trial. In some of the suits the plaintiff was able to establish the completion of work and non payment of the bills by the Corporation which has resulted in the suit of the plaintiff being decreed and in respect of the suits decreed he has realized the decreetal amount also. However, in respect of a batch of suits where plaintiff was not able to establish the extent of work that was completed by him and also where he was not able to demonstrate that he is entitled for payment of the suit claim his suits came to be dismissed, by common judgment dated 20.02.2009.

The plaintiff being aggrieved by the same, preferred the appeals in lower appellate Court, viz, the Court of District Judge, Hubli, in R.A. Nos. 81/2009 to 88/2009, 92/2009, 93/2009 and 103/2009 to 110/2009. The lower appellate Court on reappreciation of the pleadings, oral and documentary evidence with reference to the grounds urged in the appeal memo, felt that the plaintiff in the first place has not established that he has completed the work as claimed in each of the plaint and in the absence of showing that the work is completed he is not entitled to recover the amount claimed in each of the suits against work order.

In the lower appellate Court, the finding of the trial Court with reference to the right of plaintiff seeking refund of E.M.D. and as well as security deposit was also upheld in holding that, in the absence of work being complete, the question of plaintiff seeking refund of E.M.D. and as well as security deposit does not arise until the mandatory period after completion of the work is over. In the instant case, the work itself not being completed, he is not entitled to claim the amount, accordingly dismissed the said appeals by common judgment dated 31.01.2011.

Being aggrieved by the concurrent findings of both the Courts below in dismissing his claim for recovery of money for the alleged partial completion of work orders, the plaintiff in the aforesaid suits has come up in these second appeals.

Heard the learned counsel for the appellant, perused judgments of both the Courts below with reference to the grounds of appeal and also the pleadings, oral and documentary evidence available on record. On going through the same, it is seen that in R.S.A. No. 5051/2012 (O.S. No. 223/03 and R.A. No. 81/09), admittedly the work order is dated 07.03.2000 whereas the running bill in this is raised to an extent of Rs. 3,36,186.82, which is duly paid. The claim of the plaintiff is that over and above the work referred to above, he has completed additional work to an extent of Rs. 51,779/- which he is entitled to recover along with E.M.D. of Rs. 12,353/- and security deposit of Rs. 16,810/-. Though he has stated that he has completed the work to an extent of Rs. 51,779/-over and above the first running bill, which he has produced and for which he has received the amount, in his evidence he has clearly admitted that, after the first running bill is paid he has not commenced the work in the absence of payment with reference to other works. Therefore, his contention that he has completed the work to an extent of Rs. 51,799/- after payment of first running bill is contradicted in his own evidence. In addition to that, there is nothing on record to demonstrate what is the extent of work that he has completed after the first running bill is paid.

Similar is the situation in R.S.A. No. 5053/2012 (O.S. No. 347/2003 and R.A. No. 83/2009), R.S.A. No. 5054/2012 (O.S. No. 348/2003 and R.A. No. 84/2009 and R.S.A. No. 5056/2012 (O.S. No. 350/03 and R.A. No. 86/09) barring this, in none of the appeals arising out of various other suits any bill is raised by the plaintiff. In the absence of raising a bill, he cannot expect payment to be made. As could be seen that in each of the other appeals arising out of various suits the suit is based on the work order and as well as legal notices issued stating that he has completed "X" amount of work for which amount is not paid. But strangely in none of those suits, bills are raised, demand is made prior to issue of legal notices. Therefore, issuance of legal notices and filing of suits in all those suits are premature as against the earlier suits where running bills are raised and payments are received.

Therefore, what is seen is, in cases where running bills are raised and payments are received, the plaintiff has not adduced any evidence to demonstrate that subsequently he has carried out further work for which he is entitled to payment and if at all there is any such work carried out by him, there is no bill raised while concluding that the said bill is required to be paid and in respect of the pending work, he is not interested to carry out the work. On the contrary, he issued legal notices in all other suits and demand for payment without raising the bill.

The trial Court by looking into the same, has rightly come to the conclusion that the plaintiff has failed to establish, in fact he has completed any portion of work that was entrusted to him under various work orders for which he is entitled to receive payment. In the absence of material to demonstrate the right of plaintiff to receive payment, the trial Court rightly dismissed his suits for recovery of the alleged money due to him and the lower appellate Court on reappreciation of the pleadings, oral and documentary evidence available on record, has rightly confirmed the judgment of the trial Court in rejecting his prayer for reversing the judgment and decree passed by the trial Court in dismissing his suits.

The learned counsel for the appellant tried to substantiate that, in all the suits filed by him, there was reference to the extent of work carried out by him, which is recorded in the measurement book maintained by the Corporation. Therefore, the respondent-Corporation should have produced the said document in the court below. Instead, it has deliberately retained the same which would amount to infringing his right to get that evidence before the Court as provided U/s 114-G of the Evidence Act. It is also his grievance that in the instant case, the defendant-H.D.M.C. has deliberately withheld the said book and subsequently stated that the same is destroyed. Therefore, non production of that book has resulted in dismissal of his suits due to the reason that the extent of work which is carried out by him, has not come on record.

This Court is not in agreement with the said line of argument for the reason that, in the trial Court no attempt is made by the plaintiff to call upon the defendant to produce the said measurement book as evidence in the Court below. In addition to that, he has not raised the bill except in 3-4 suit claims. In many of the suits he has not raised the bill to demonstrate what is the extent of work that is completed. If at all the measurement regarding the work that is completed by him, is available in the bill raised by him, it is always open for him to secure measurement book and to seek comparison of the same. In the instant case the initial burden of establishing the extent of work completed is not done by the plaintiff. Therefore, he cannot say that the defendant should have voluntarily produced the book to show the extent of work carried out by him.

The learned counsel for the appellant tried to rely upon the judgment rendered by Full Bench of the Apex Court, in the matter of Gopal Krishnaji Kotkar v. Mohamed Haji Latif reported in laws (SC) 1968-4-14 to support his contention that, the respondent-Corporation ought to have produced the measurement book in the Court below; in the said judgment their Lordships have observed as under:

""The observation of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration (g) of S. 114 of the Evidence Act, and also an impressive body of authority."

The said line of argument does not hold water and the aforesaid judgment would not inure to his benefit for the reason that the plaintiff himself has not raised the bill in all the suits except in one or two suits where he has raised the first and second running bill and in other matters he has relied upon work order and legal notices issued by him calling upon the Corporation to make payment for the alleged work which he has done, which is not supported by any document. Therefore, in the light of aforesaid discussion this Court does not see any merit in these appeals. Further, with reference to the grounds urged, no substantial question of law also does not arise for consideration. Accordingly, all these appeals are dismissed.