The Executive Engineer Vs Ananth Ganapati Bhat

THE EXECUTIVE ENGINEER (ZILLA PANCHAYAT ENGINEERING DIVISION), RURAL DEVELOPMENT ENGINEERING DEPARTMENT, SIRSI DIVISION, SIRSI, DIST: UTTARA KANNADA-581 401.

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… APPELLANT

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(BY SRI VISHWANATH HEGDE, ADVOCATE.)

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AND:

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ANANTH GANAPATI BHAT, AGED 61 YEARS, OCC: ENGINEER AND PWD CONTRACTOR, R/O: BELLEKERI, SIRSI TALUK, DIST: UTTARA KANNADA-581401.

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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THE STATE OF KARNATAKA, REPRESENTED BY DEPUTY COMMISSIONER, UTTARA KANNADA, KARWAR, DIST: UTTARA KANNADA-581301.

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… RESPONDENTS

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(BY SRI B.G.INDI, ADVOCATE, FOR R1;

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SRI ASHOK T. KATTIMANI, ADDITIONAL GOVERNMENT ADVOCATE, FOR R2.)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 15.02.2017 PASSED IN O.S.NO.51/2015, ON THE FILE OF THE SENIOR CIVIL JUDGE, SIRSI, OR IN THE ALTERNATIVE TO REMAND THE MATTER TO TRIAL COURT WITH A MANDATE TO RECORD THE EVIDENCE OF DEFENDANT NO.1 AND TO DECIDE THE MATTER THEREAFTER IN ACCORDANCE WITH LAW AND ETC.,.

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NC: 2025:KHC-D:7302 RFA No. 100316 of 2017

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HC-KAR

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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This appeal is filed by defendant No.1 challenging the

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judgment and decree dated 15.02.2017, passed by the Senior Civil Judge, Sirsi, in O.S.No.51/2015, thereby the suit filed for recovery of money is partly decreed holding that the defendants are jointly and severally liable to pay an amount of Rs.5,45,648/- to the plaintiff together with interest at the rate of 14% p.a. from 21.04.2006 till realization of the amount.

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For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court.

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The plaintiff/respondent No.1 filed suit for recovery of money against the defendants stating that defendant No.1 has issued work order to the plaintiff for construction of Shri Hardikar Manjappa Memorial Hall at

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Banavasi in Sirsi taluka and accordingly an agreement came to be executed on 22.03.2000 and the plaintiff has taken possession of the land and started construction of the Memorial Hall and completed 95% of the said work and 5% of the work is remained like, removal of scaffolding, surplus materials and rubbish from the premises. But in the meantime, defendant No.1 attempted to take possession of the constructed premises without satisfying the bill to the plaintiff of Rs.4,71,526/-. Therefore, the plaintiff was constrained to file suit in O.S.No.72/2006 for permanent injunction against defendant No.1, but the said suit was dismissed. In the said suit O.S.No.72/2006, defendant No.1 took pleading that the plaintiff has fully completed the construction, therefore, has taken possession. Therefore, the plaintiff in the present suit by relying on the pleading taken in O.S.No.72/2006 that the entire construction is completed, pleaded that defendant No.1 has not honoured the bill of Rs.4,71,526/- and therefore, filed a suit for recovery of money along with interest at the rate of 18% p.a.

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HC-KAR

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In pursuance to the summons served, the

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defendants appeared and filed the written statement and denied that the plaintiff has completed construction work. Further taken contention that the plaintiff has not completed the construction work, therefore, the bill was not honoured. With thee pleadings, prayed to dismiss the suit.

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Based on the pleadings of the parties, the Trial

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Court has framed the following:

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ISSUES

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Whether the plaintiff proves that due to unavoidable circumstances the contract work entrusted to him could not be completed by him within time?

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Whether he further proves that the contract work entrusted to him is yet to be completed?

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Whether the plaintiff further proves that the defendant No.1 has forcibly tried to take possession of the premises contrary to the terms of the contract?

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Whether he further proves that due to the act of the defendants he has suffered huge monetary loss?

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If so, whether the plaintiff is entitled to recover the claim amount as prayed for by way of damages?

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Whether the Defendant No.1 proves the breach of terms of contract committed by the plaintiff in not completing the work within the stipulated time?

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Whether the plaintiff is entitled to the suit reliefs?

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What order or decree?

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The plaintiff is examined as PW.1 and got marked documentary evidence as Exs.P.1 to Ex.P.6. The defendants have not examined any witnesses and also not produced any documents in support of their contention.

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The Trial Court partly decreed the suit by

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directing the defendants to pay an amount of Rs.5,45,648/to the plaintiff with interest at the rate of 14% p.a. from 21.04.2006 till its realization. Being aggrieved by it, defendant No.1 has preferred the above appeal by raising various grounds and the main grounds raised are that, the suit is not maintainable as per section 295 of the Karnataka

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Gram Swaraj and Panchayat Raj Act, 1993 (‘the Act’ for short). Further, the suit is not maintainable since the Zilla Panchayat is not made as a party to the suit, but only the

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Engineering Division is made as party. Therefore, on all these grounds prayed to set aside the judgment and decree passed by the trial Court.

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Upon hearing the learned counsels appearing for the parties and perusing of Trial Court records, the points that arise for my consideration are as under:

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i) Whether, under the facts and circumstances involved in the case, defendant No.1 proves that the suit is not maintainable as per section 295 of the Act?

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ii) Whether, under the facts and circumstances involved in the case, defendant No.1 proves the fact that the plaintiff has not completed the construction work?

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iii) Whether, the judgment and decree passed by the Trial Court requires any interference?

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Learned counsel for the appellant/defendant No.1

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submitted that the suit is not maintainable as per section

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295 of the Act. Further the suit is not maintainable since Zilla Panchayat is not made as party, but only Engineering Division is made as party. Further submitted, the plaintiff has not completed the construction work, therefore, not entitled for the amount raised in the bill. Therefore, on all these grounds prays to allow the appeal.

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On the other hand, learned counsel for plaintiff/respondent No.1 submitted that the suit is maintainable and it is rightly considered by the trial Court. Further submitted that defendant No.1 himself admitted that the plaintiff has completed the construction work and accordingly has taken possession. Therefore the plaintiff is entitled for recovery of money from defendant No.1. Therefore, justified the judgment and decree passed by the trial Court and hence prays to dismiss the appeal.

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In the present case it is not disputed that defendant No.1 has entrusted the work to the plaintiff in a tender as the plaintiff being successful tenderer and accordingly the plaintiff had been issued with work order for

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construction of Shri Hardikar Manjappa Memorial Hall at Banaavasi in Sirsi taluka; defendant No.1 had executed the agreement dated 22.03.2000 in this regard. It is also not disputed that upon getting tender from defendant No.1, plaintiff took possession of the premises for construction and according to the plaintiff, he has completed 95% of the construction work. According to the plaintiff, only remaining 5% of work was yet to be completed, like removing scaffolding, surplus material and rubbish from the premises. But in the meantime defendant No.1 has attempted to take possession of the constructed Memorial Hall without satisfying the bill. Therefore, the plaintiff objected and has filed suit for injunction in O.S.No.72/2006. The said suit was dismissed. In the said suit O.S.No.72/2006, defendant No.1 took contention that the plaintiff has completed the construction, therefore, defendant No.1 has taken possession of the constructed Memorial Hall.

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When this being the fact, defendant No.1 has admitted that construction of Memorial Hall was completed, then defendant No.1 could not resile from the statement

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made in O.S.No.72/2006 as it is amounting to estoppel under section 115 of the Indian Evidence Act (Old Act). Therefore, considering these aspects, the trial Court is correct in decreeing the suit. There is no evidence adduced or produced by the defendants that they have honoured the bill raised by the plaintiff, but the bill raised by the plaintiff is still due. Therefore, the plaintiff has filed the suit. On the contrary there is no evidence by defendant No.1 that they have paid the bill. Therefore, under these circumstances the trial Court is correct in decreeing the suit in part.

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Regarding maintainability of the suit, as per section 295 of the Act, there is no merit found in the said ground raised and the contention taken by the learned counsel for appellant/defendant No.1.

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Section 295 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993, reads as under:

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Bar of suits etc.-(1) No Civil Court shall entertain a suit objecting to an assessment demand or charge made or imposed under this Act, or for the recovery of any sum of money collected under the authority of this Act, or for damages on account of any assessment or

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collection of money under the said authority, if the provision of this Act have been in substance and effect compiled with.

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(2) No suit or other legal proceeding shall lie against a Chief Executive Officer or Executive Officer or Secretary or any other officer of the Government or a Grama Panchayat or Taluk Panchayat or Zilla Panchayat or any member, officer, servant or agent of such Grama Panchayat, Taluk Panchayat or Zilla Panchayat acting under its direction in respect of anything done or purporting to have been lawfully done and in good faith under this Act or any rule, regulation, bye-law or order made thereunder except with the previous sanction of the Zilla Panchayat or such officer as the Zilla panchayat may specify.

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(3) No suit or other legal proceeding shall lie against the Government in respect of anything done under this Act, or any rule, regulation or bye-law made thereunder.

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As per sub-section (1) of Section 295 of the Act,

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the Civil Court does not have jurisdiction regarding an assessment demand or charge made or imposed under this Act, or for the recovery of any sum of money collected under the authority of this Act, or for damages on account of any assessment or collection of money under the said authority.

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Here, learned counsel for appellant/defendant

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No.1 argued that for recovery of money the suit is barred. But there is no merit in this contention for the reason that in sub-section (1) of Section 295 of the Act the suit is barred for recovery of money collected under the authority of this Act. Here, in the present case there is no question of amount is collected under the authority of the Act by any officials of the Zilla Panchayat. But in the present case the suit is filed for recovery of money since defendant No.1 has not honoured the bill raised by the plaintiff even though the plaintiff has completed construction work of Memorial Hall. Therefore this sub-section (1) of Section 295 of the Act is not applicable to the present case.

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Further, sub-section (2) of Section 295 of the Act relates to bar of the suit when the officials are acting under the direction of Zilla Panchayat in respect of anything done or purporting to have been lawfully done and in good faith under this Act or any rule, regulation, bye-law or order made thereunder. Under these circumstances the suit is barred. But in the present case there is no question of being act

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done or purporting to have been lawfully done by the authority of the Zilla Panchayat. Even any officials of Zilla Panchayat, Taluka Panchayat, Gram Panchayat acting under the direction of the Act or Authority, do anything, then the suit is not maintainable. But the facts in the present case are different. Here the plaintiff is not challenging the act or action of the officials/authority of Zilla Panchayat. The suit is filed for simply recovery of money from defendant No.1 contending that the plaintiff has completed construction work of Memorial Hall. Therefore, this sub-section (2) of Section 295 of the Act is also not applicable to the present case.

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Therefore, upon interpreting the provisions of sub-section (1) and (2) of Section 295 of the Act on the facts and issues involved in the case, there is no merit in the grounds raised in the memorandum of appeal and also in the arguments addressed by the learned counsel for the appellant. Therefore, the appeal is liable to be dismissed as there is no error found in the judgment and decree passed by the trial Court.

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Defendant No.2 is the Government represented by the Deputy Commissioner is misjoinder of party in the suit. As per sub-section (3) of Section 295 of the Act, the Government shall not be a party, but the plaintiff has made the Government as party.

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Therefore, the judgment and decree passed by the trial Court is liable to be confirmed except awarding of rate of interest. The trial Court has imposed interest at the rate of 14% p.a. which is found to be little bit exorbitant one. The decreetal amount as passed by the trial Court shall carry interest at the rate of 12% p.a. from 21.04.2006 till its realization. Therefore, the judgment and decree is liable to be modified insofar as imposing rate of interest is concerned only. Therefore, the appeal is liable to be allowed in part so far as imposing of rate of interest is concerned. Hence, I answer points No.1 and 2 raised for consideration in the negative and point No.3 partly affirmative so far as rate of interest is concerned.

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Hence, I proceed to pass the following:

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HC-KAR

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ORDER

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i) The appeal is allowed in part.

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ii) The judgment and decree dated 15.02.2017, passed by the Senior Civil Judge, Sirsi, in O.S.No.51/2015, is modified so far as imposing of interest is concerned and the interest at the rate of 12% p.a. is imposed on the decreetal amount from 21.04.2006 to till realization of the entire amount.

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iii) No order as to costs.

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iv) Draw decree accordingly.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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MRK CT: BCK LIST NO.: 1 SL NO.: 30

The Executive Engineer v. Ananth Ganapati Bhat

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The Executive Engineer v. Ananth Ganapati Bhat

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