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Judgment
F.M. Reis, J.—Heard Shri D. Lawande, the learned Government Advocate appearing for the appellants and Shri S. Shet, the learned Counsel appearing for the respondent. The above appeal challenges the judgment and decree passed by the learned Additional District Judge, Panaji in Civil Suit No.315/2004, whereby the suit filed by the respondent was partly decreed and the appellants were directed to pay a sum of Rs.1,66,101/-with interest thereon at the rate of 18% p.a. from 25/10/2002 to be calculated on quarterly rest, besides a further sum of Rs.20,000/- as compensation.
Briefly, the facts of the case are that the respondent quoted for a tender of Ferry Toll collections invited by the appellant no.3. It is further the case of the respondent that he was declared as a successful bidder and was called upon to complete requisite formalities. In accordance with the terms of the said tender the respondent had deposited earnest money of Rs.4,000/-and thereafter paid a sum of Rs.1,66,101/-as security deposit as per the directions of the appellants. The respondent was also called upon to complete the formalities of executing the agreement and, as such, the respondent had signed such agreement. But however, the respondent abruptly terminated the agreement without giving any valid reasons and on account of such action according to respondent he had suffered heavy losses and, consequently, sought for the refund of Rs.1,66,101/-with interest plus compensation of the sum of Rs.2,22,900/-.
The appellants contested the said suit by filing the written statement. It is their case that no agreement was executed between the respondent and the appellants. It is further their case that the respondent had informed the appellants that he is not in a position to commence the said work of collecting the toll fees dues to his sickness and, as such, prayed that the suit be dismissed.
The learned Judge after framing the issues and recording of evidence by the impugned judgment and decree dated 27/04/2006 partly decreed the suit in the manner stated herein above. Being aggrieved by the said judgment and decree the appellants have preferred the present appeal.
Shri D. Lawande, the learned Government Advocate has assailed the impugned judgment essentially on two counts. The learned Counsel has pointed out that though it is not in dispute that the sum of Rs.1,66,101/-was in fact paid to the appellants as security deposit, but however, according to the learned Counsel the said amount was not repaid as the respondent failed to come forward to collect the said amount. The learned Counsel further pointed out that despite of intimations to the respondent to collect the said amount the respondent for the reasons best known to him refused to collect the said amount. The learned Counsel further pointed out that the learned Judge whilst passing the impugned judgment has awarded interest at the rate of 18% p.a. with Rs.20,000/-as compensation which is exorbitant and in any event respondent is not entitled for any interest as according to him the amount remained on account of the default committed by the respondent. The learned Counsel further pointed out that the learned Judge has awarded a sum of Rs.20,000/-as damages when there is no evidence on record nor any material adduced by the respondent to the effect that the respondent has suffered such damages. The learned Counsel further pointed out that unless and until actual damages are established the question of awarding such compensation to the respondent would not arise. The learned Counsel, as such, submits that the impugned judgment deserves to be quashed and set aside.
On the other hand, Shri S. Shet, the learned Counsel appearing for the respondents has supported the impugned judgment and pointed out that the learned Judge has rightly decreed the suit and directed payment of Rs.1,66,101/-which was deposited by the respondent with the appellants. The learned Counsel further pointed out that as far as the interest is concerned this Court may fix the reasonable rate of interest as it deems fit. The learned counsel as such submits that the appeal deserves to be dismissed.
Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal:
POINTS FOR DETERMINATION:
(i) Whether the learned Judge was justified to direct refund of sum of Rs.1,66,101/-with interest at the rate of 18% p.a. to be calculated on quarterly rests.
(ii) Whether the learned Judge was justified to award compensation of a sum of Rs.20,000/-to the respondent.
With regard to the first point for determination it is not in dispute that the sum of Rs.1,66,101/-was in fact paid by the respondent to the appellants as deposits. It is also not in dispute that the respondent was the successful bidder in the said tender floated by the appellant no.3. The records further reveal that in view of the acceptance of the tender of the respondent a sum of Rs.1,66,101/- was paid by the respondent to the appellants which were inclusive of earnest money which was paid earlier. Considering the said aspect and taking note of the fact that appellants had terminated the agreement immediately thereafter there was no justification for the appellants to retain the said sum of Rs.1,66,101/-. As such, the learned Judge was justified to direct the refund of the said amount of Rs.1,66,101/-.
With regard to the rate of interest awarded by the learned Judge in the impugned judgment at the rate of 18% p.a. with quarterly rests, considering the contentions of the learned Counsel appearing for the appellants that the respondent was called upon to collect the said amount which is otherwise not disputed by PW1 in the cross-examination. I find that the interest awarded by the learned Judge is on the higher side. Considering the rates of interest prevailing in Nationalized Bank at the relevant time, I find that the reasonable interest would be 10% p.a. instead of 18% as awarded by the learned Judge in the impugned judgment. The learned Judge also was not justified to award interest with quarterly rests, as it is well settled that grant of interest pendente lite u/s 34 of the CPC is discretionary and there is no contractual rate of interest specified in the agreement Considering the overall evidence on record, I find that the appellants are liable to pay to the respondent a sum of Rs.1,66,101/-together with interest at the rate of 10% p.a. from 25/10/2002 up to the actual payment. The first point for determination is answered accordingly.
With regard to the second point for determination, on perusal of the evidence on record, I find that no material has been adduced by the respondent to substitute his claim for damages. The learned Judge was not justified to arbitrarily fix the amount of damages as the respondent has failed to adduce any material to establish the said claim. The learned Counsel appearing for the respondent fairly states that the respondent has not adduced any evidence that he has in fact suffered any damages. As such, the learned Judge was not justified to award compensation of Rs.20,000/-as damages. The evidence on record also discloses that the Respondent has sought time to start the work at the site, hence it cannot be said that the respondent has suffered damages as claimed by him. To that extent, the impugned judgment deserves to be quashed and set aside. The second point for determination is answered accordingly. In view of the above, I pass the following order:
ORDER
(i) The impugned judgment and decree dated 27/04/2006 is modified and the appellants are directed to pay to the respondent a sum of Rs.1,66,101/-along with interest thereon at the rate of 10% p.a. from 25/10/2002 up to actual payment.
(ii) The appeal stands disposed of accordingly with no order as to costs.