The State of Tamil Nadu vs T.R. Surrendranath

S. Tamilvanan, J.—This appeal is directed against the judgment and decree dated 11.09.1995 made in O.S. No. 11624 of 1988 on the file

of the learned VII Assistant Judge, City Civil Court, Chennai.

The appellants herein are the defendants before the trial Court in O.S. No. 11624 of 1988. The respondent/plaintiff had filed the suit for

declaration, permanent injunction and also for a direction to the appellants/defendants to pay a sum of Rs. 92.000/- together with interest at the

rate of 6% per annum. The Court below has decreed the suit directing the appellants/defendants to pay a sum of Rs. 50,000/- with proportionate

costs. Aggrieved by the judgment and decree passed by the Trial Court, the appellants/defendants have preferred this appeal.

Mr. V. Ravi, learned Special Government Pleader (AS) appearing for the appellants/defendants submitted that the Trial Court without

considering the evidence and the merits of the case properly, has decreed the suit directing the appellants/defendants to pay a sum of Rs. 50,000/-

to the respondent/plaintiff, though the respondent/plaintiff had filed only a copy of the legal notice dated 02.10.1994 sent by him, without any other

supporting documents for claiming Rs. 92,000/-. According to the learned Special Government Pleader, the oral evidence of the

respondent/plaintiff and the copy of the notice marked as Ex.A-1 would not be sufficient to establish the case of the respondent/plaintiff to base the

money claim, however the Court below has decreed the suit for a sum of Rs. 50,000/- without any supporting evidence.

Per contra, the learned Counsel appearing for the respondent/plaintiff submitted that the appellants/defendants have marked 24 documents

including the agreement dated 30.12.1986 entered into between the appellants/defendants and the respondent/plaintiff and the Assistant Divisional

Engineer was examined as D.W.I. According to him, though the respondent/plaintiff has not produced sufficient supporting documents to establish

his claim, in the written statement filed by the appellants/defendants, it has been admitted at para No. 2 that the respondent/plaintiff had paid

Earnest Money Deposit of Rs. 19,000/- and Additional Security Deposit of Rs. 25,000/-, totally a sum of Rs. 44,000/-.

It has been admitted by both the appellants well as the respondent herein that the first respondent had called for tenders for the purpose of

improving Kanchipuram bye-pass road, from K.M. 0/0:6/4. including construction of vented cause-way, at KM 5/2-4 in lieu of the existing road

dam.

According to the respondent/plaintiff, after the acceptance of his tender, he had collected the materials required for the aforesaid construction

work and also started the work. However, as the appellants/defendants had not removed certain obstructions, the respondent/plaintiff could not

perform his part of the contract entered into on 30.12.1986 and due to the apprehension that the appellants/defendants would take penal action

against the respondent/plaintiff, the suit was instituted for a declaration that the contract entered into between the appellants/defendants and the

respondent/plaintiff herein on 30.12.1986 was unenforceable and for a consequential permanent injunction, not to take any penal action against the

respondent/plaintiff based on the agreement. The respondent/plaintiff had further pleaded in the suit for return of a sum of Rs. 92,000/- together

with 6% interest per annum. However, the respondent/plaintiff had not produced any supporting documents to substantiate his claim of Rs.

92,000/-.

The learned Special Government Pleader appearing for the appellants/defendants further contended that there was no breach of contract by the

appellants, but the respondent/plaintiff had failed to perform his part of the contract, as per the tender, hence, subsequently the tender was

cancelled and the work was allotted to some other person. On the admission made by the appellants/defendants in the written statement, it is clear

that the respondent had deposited Rs. 44,000/- with the appellants towards Earnest Money Deposit (E.M.D.) of Rs. 19,000/- and Additional

Security of Rs. 25,000/- and the said amount has not been returned to the respondent. There is no specific evidence to show that the appellants

had incurred any loss due to breach of contract by the respondent herein and therefore, retaining the Earnest Money Deposit and Additional

Security amount would be an unjust enrichment.

In these circumstances to meet the ends of justice, this Court is of the view to direct the appellants/defendants to return the Earnest Money

Deposit of Rs. 19,000/- along with the Additional Security Deposit of Rs. 25,000/- to the respondent/plaintiff. The respondent/plaintiff has not

established that he was performing his part of the contract and that there was a breach of contract only on the part of the appellants/defendants.

Therefore, the respondent/plaintiff is not entitled to any interest for the aforesaid amount.

As contended by the learned Counsel for the appellants, the Trial Court has held without any supporting documents, or admission by the

appellants/defendants that Rs. 22,000/- had been spent for material collection and Rs. 20,000/- was spent towards non-completion of the work

by the respondent/plaintiff and awarded a total sum of Rs. 50,000/-to be paid by the appellants/defendants. The finding of the Court below is not

based an any evidence, and therefore as contended by the learned Counsel for the appellants, the judgment and decree of the Court below has to

be set aside, since the same is not supported by any evidence.

As discussed earlier in the judgment, it has been admitted by the appellants/defendants that an amount of Rs. 19,000/- towards Earnest Money

Deposit and Rs. 25,000/- towards Additional Security Deposit, were received by the appellants from the respondent herein. There is no evidence

on the side of the appellants/defendants to show that there was any loss incurred by them due to the default committed bv the respondent. Hence,

retaining the money bv the appellants would be construed only as an unjust enrichment, (sic)

In such circumstances, to meet the ends of justice, this Court finds it just and reasonable to direct the appellants/defendants, to return the

Earnest Money Deposit and Additional Security Deposit that had been received from the respondent/plaintiff, since the tender was subsequently

allotted to some other person.

Considering the facts and circumstances and the arguments advanced by both the learned Counsel, it is ordered that the appellants/defendants

herein have to pay a sum of Rs. 44,000/- received from the respondent/plaintiff, by way of Earnest Money Deposit and Additional Security

Deposit. Accordingly, the appeal is partly allowed and the impugned judgment and decree are set aside and the appellants herein are directed to

return the money paid by the respondent towards Earnest Money Deposit and Additional Security Deposit.

It has been verified by the learned Counsel appearing for the respondent/plaintiff that on 23.04.1996. a sum of Rs. 32,569/- was deposited by

the appellants/defendants before the Trial Court and the same was withdrawn by the respondent/plaintiff on 14.02.2602. Hence, the

appellants/defendants are directed to pay the balance amount of Rs. 11,431/- within a period of three months from the date of receipt of a copy of

this order, failing which the respondent would be entitled to (sic) the amount with 9% interest for the balance amount from the date of this

judgment. However, there is no order as to costs.