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Judgment
The present appeal has been filed by the appellants â€" State feeling aggrieved of the judgment and decree dated 22.01.2015 passed by the Civil
Judge North, Udaipur (hereinafter referred to as the ‘Trial Court’) duly affirmed vide judgment and decree dated 14.07.2016 by the learned
Additional District Judge No.3, Udaipur (hereinafter referred to as the ‘Appellate Court’).
Succinctly stated the facts apropos the present appeal are that the plaintiff â€" respondent herein instituted a suit against the defendants â€" appellants
herein for mandatory injunction laying challenge to a notice of recovery dated 15.03.2002 demanding a sum of Rs.1,46,452/- and recovery made
pursuant thereto.
The plaintiff in the suit filed by him averred that pursuant to an NIT for construction of a dam his bid of Rs.46,62,000/- was accepted and
consequently an agreement No.56/1997-98 came to be executed between the plaintiff and defendants â€" State.
In furtherance of the agreement aforesaid, the work order dated 02.03.1998 came to be issued by the defendant No.2. The plaintiff had completed the
work in the month of August, 1998, well in time, to the utmost satisfaction of the defendants. After completion of the work, the defendant had made
final payment to the plaintiff and even security money of 5% was also returned to him. After about four years, the plaintiff came to receive the
impugned notice dated 15.03.2002 issued by the defendant No.2, asking him to make payment of alleged excess amount of Rs.1,46,452/-, failing which
the same was threatened to be recovered from other contracts of the plaintiff.
Faced with such situation, the plaintiff rushed to institute a suit for injunction without issuing a notice under Section 80 of the Code of Civil Procedure,
1908.
The appellants â€" defendants filed the written statement and opposed the suit on all possible counts including that in absence of requisite notice under
Section 80 of the Code of Civil Procedure, the suit was not maintainable.
On the basis of the pleadings of the rival parties, following six issues were framed by the Trial Court :-
^^1- vk;k oknh okn of.kZr vk/kkjksa ij izfroknh la- 2 }kjk uksfVl ds rgr uksfVl dh jkfâ€k olwy ugha djus ckcr~ izfroknh dks LFkk;h fu""ks/kkKk ls ikcan
djokus dk vf/kdkjh gS \
2- vk;k oknh }kjk okn esa egkys[kkdkj dks i{kdkj u cuk, tkus dk okn ij D;k vlj gS \
3- vk;k oknh us nkok izLrqr djus ds iwoZ /kkjk 80 lh-ih-lhdk uksfVl izfroknh dks ugha fn;k] bldk okn ij D;k vlj gS \ 4- vuqrks""k \ vfrfjDr rudh &
5- vk;k oknh }kjk fd;k x;k okn ewY;kadu i;kZIr gS vkSj ml ij i;kZIr U;k;â€kqYd vnk fd;k x;k gS \
6- vk;k izfroknh la[;k 2 }kjk oknh dks fn, x, uksfVl ds Øe esa nkSjkus okn izfroknh la- 2 }kjk jde dkV fy, tkus dh nâ€kk esa oknh] izfroknh la[;k 2 ls
iwjh jde e; 18 izfrâ€kr okf""kZd dh nj ls C;kt izkIr djus dk vf/kdkjh gS \**
After dealing with and considering the oral and documentary evidence in detail, the trial Court found that the defendants have issued a work order in
tune with the tender, which included clause- 6-B requiring the contractor to execute extra lift of earth, fixing its costs to be Rs.1,92,888/-. A copy of
the said tender was also sent to Accountant General for information, which clearly contained the stipulation regarding extra lift of earth and payment
towards it.
The trial court has found that after completion of the work and payment to the contractor, the defendant No.2 had issued notice for recovery only on
the basis of audit objection raised by the Accountant General. The said objection was to the effect that as per Page 47 of the G Schedule, the item 6-
B regarding lifting of extra earth could not have been given in the tender.
The trial court has held that the stipulation of item No.6-B was very much there in the tender and in furtherance thereof, the contractor had
undisputedly and undeniably carried out the said work, as had been admitted by the defendants’ witness DW-1 â€" Narendra Prakash, in
unequivocal terms. The trial court further found that there is no gain saying that the contractor has executed the work in question and that too without
any error or lacuna.
The trial court held that firstly the objection raised by the Office of Accountant General was unsustainable and even if the same had any substance,
such objection ought to have been raised before issuance of the work order and the plaintiff cannot be saddled with the liability of the amount of
Rs.1,46,452/-. The trial court held that the recovery in question was also against the principles of natural justice as the defendants have recovered the
amount from the appellant’s other bills, without even issuing notice to him.
In view of the findings aforesaid, the trial court decreed the suit filed by the plaintiff while declaring the recovery notice No.2528 for a sum of
Rs.1,46,452/- to be illegal. The Trial Court also directed the defendants to pay the aforesaid amount along with interest @ 12% from the date of
recovery till the date of payment.
The appellant â€" State preferred an appeal before Additional District Judge No.3, Udaipur, which came to be rejected by the Appellate Court, vide its
judgment and decree dated 14.07.2016, after discussing the evidence in detail.
Mr. Rajpurohit, learned counsel for the appellants calling in question the judgments and decree dated 14.07.2016 and 22.01.2015 contended that the
courts below have erred in decreeing the suit filed by the plaintiff. He contended that the appellant â€" defendants were bound by the directives issued
by the Accountant General. If the plaintiff had any grievance against the objection raised by the Accountant General, he ought to have impleaded him
as a party. In absence of Accountant General, the suit was not maintainable, submitted Mr. Rajpurohit. He contended further that the plaintiff had
admittedly not issued notice under Section 80 of the Code of Civil Procedure, hence, the suit was not maintainable.
I have heard learned counsel for the appellant in detail and perused the material available on record.
As far as the findings recorded by the trial court duly affirmed by the appellate court in relation to the recovery of money are concerned, the same are
infallible. The trial court has rightly held that in wake of the stipulation in the form of Condition No.6-B regarding removal of earth, the Accountant
General could not have raised any objection, particularly after the execution of the work and payment has been made.
This Court concurs with and affirms the finding recorded by the trial court that such recovery notice after passing of more than three years is illegal,
particularly when no opportunity of hearing was afforded to the plaintiff. The recovery notice dated 15.03.2002 has rightly been set aside by the trial
court.
Now I proceed to consider the submissions made by the appellants that the suit in question was not maintainable sans a notice under Section 80 of the
Code of Civil Procedure.
This Court is of the view that the courts below have rightly held that in view of recovery notice, allowing only seven days time to deposit the money,
the suit in question was emergent in nature, for which even the trial court had registered the suit as a suit of urgent nature. If the plaintiff were to wait
for notice period of two months, the purpose of the suit would have been frustrated.
Apart from the above, no prejudice can be said to have been caused to the defendants, in absence of issuing of a notice under Section 80 of the Code
of Civil Procedure. Hence the suit filed in imminent threat of recovery was maintainable.
The argument of Mr. Rajpurohit that in absence of presence of Accountant General as the defendant, the suit was incompetent; is equally
fallacious. The audit Objection of the Accountant General or its officers is nothing more than an opinion. The defendants â€" State Government or
its Engineer are required to act upon the opinion, after due application of their mind albeit after providing an opportunity of hearing to the concerned
contractor. The Accountant General was neither necessary nor proper party as none of its action was under challenge. It cannot be said that the suit
as filed by the plaintiff was incompetent.
In view of discussion forgoing, this Court does not find any illegality or infirmity in the judgments impugned.
The appeal filed by the appellants is therefore, dismissed.