Dismissed

State of Haryana v. M/S Prem Kumar Subhash Kumar

Punjab & Haryana HC12 Jan 2012ESA/39/2009

Case brief

AI extract

What is this about?

In an execution second appeal regarding a contractual dispute for brick and tile supply, the High Court upheld the lower appellate court's order directing the judgment-debtors to prepare a final bill. The Court ruled that stock register entries proved material supplied, while measurement books showed material used, and allowed deduction for rejected items.

What did the court decide?

Execution Second Appeal dismissed except to allow deduction for rejected bricks and tiles from the final bill.

State of Haryana Vs M/S Prem Kumar Subhash… — Execution and Attachment | Punjab & Haryana HC (2012)

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ESA No.39 of 2009 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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EXECUTION SECOND APPEAL NO.39 OF 2009 (O&M) DATE OF DECISION: JANUARY 12, 2012

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State of Haryana & others

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.... Appellants

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Versus

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M/s. Prem Kumar Subhash Kumar

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.... Respondent

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CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.

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PRESENT: Mr. H. S. Lalli, Additional Advocate Genral, Haryana for the appellants.

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Mr. Subhash Gupta, Advocate for the respondent.

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L.N. MITTAL, J. (ORAL)

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CM No.409-C of 2012

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Allowed as prayed for. Annexures A-1 and A-2 are taken on record, subject to all just exceptions along with annexed affidavit. ESA No.39 of 2009

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This is execution second appeal by State of Haryana & others (judgment debtors), who were successful in executing Court but have been unsuccessful in the lower appellate Court.

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Respondent contractor M/s. Prem Kumar Subash Kumar prepared bricks for the appellants for which appellants supplied coal. Dispute arose between the parties which was referred to Arbitrator. Arbitrator gave his award dated 30.05.1984, which has admittedly been made rule of the Court. Pursuant thereto, appellants prepared final bill of the contractor.

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The contractor-decree-holder filed execution petition alleging that

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ESA No.39 of 2009 (O&M)

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he had supplied bricks numbering 9,59,600 and tiles numbering 12,33,600 and he was entitled to the price thereof along with earnest money and security deducted from the bills and against the said total amount, cost of coal supplied by appellants to respondent as well as payment already made was to be adjusted. Detailed calculations of the claim made by the decree-holder have been given in paragraph 3 of judgment dated 14.02.2005 of the executing Court i.e. learned Additional Civil Judge (Senior Division), Hisar.

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Appellants/JDs alleged that they had prepared final bill in compliance with the award of the Arbitrator and nothing remained due to the respondent from the appellants.

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Learned executing Court vide judgment dated 14.02.2005 dismissed the execution petition holding that award of the Arbitrator, which was made rule of the Court, has already been complied with by the appellants. However, appeal preferred by the decree-holder has been allowed by learned Additional District Judge, Hisar vide judgment dated 08.08.2009 and thereby appellants-judgment-debtors have been directed to prepare final bill after considering entries Exhibit P-2 to Exhibit P-26 made in their own stock register regarding number of bricks and tiles supplied by the contractor. Feeling aggrieved, judgment-debtors have filed the instant execution second appeal.

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I have heard learned counsel for the parties and perused the case

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file.

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Learned counsel for the appellants relied on entries in measurement book to contend that bricks and tiles entered in the measurement book were actually supplied by respondent contractor and final bill has been prepared accordingly. Details of the said bricks and tiles are contained in Annexures A-1

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ESA No.39 of 2009 (O&M)

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and A-2 and the affidavit filed therewith.

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Learned counsel for respondent, however, contended that entries in measurement book simply depict the number of bricks and tiles actually used in works by the appellants whereas entries in stock register depict the number of bricks and tiles actually supplied by respondent to the appellants. Per contra learned State counsel for appellants contended that entries in stock register pertained to number of bricks and tiles moulded at the brick kiln and do not depict the number of bricks and tiles actually supplied by respondent to the appellants. It was also contended that some bricks and tiles were rejected by the appellants as detailed in Annexures A-1 and A-2.

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I have carefully considered the rival contentions.

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Entries Exhibit P-2 to P-26 in the stock register of the appellants themselves have been admitted by their sole witness A. P. Jain, SDO, RW-1. He admitted that these entries give the detail of bricks and tiles supplied to the judgment-debtors. In view of this admission of sole witness of the appellants herein themselves, there is no room for doubt left to upheld the finding of the lower appellate Court that the said entries depict the actual number of bricks and tiles supplied by respondent to the appellants. It may be added that these entries exist in the stock register of the appellants themselves. The contention of counsel for appellants that these entries depict the number of bricks and tiles moulded at the brick kiln is completely meritless as there is neither any such pleading nor even an iota of material on record to support this contention. On the contrary, this contention is negatived by admission of A.P. Jain, RW-1 a witness of the appellants themselves. In fact, there is considerable force in the contention of counsel for the respondent contractor that entries in measurement

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ESA No.39 of 2009 (O&M)

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book depict the number of bricks and tiles actually used by the appellants in the execution of their works. Measurement book is prepared to depict the work done and the material used in the work whereas stock register depicts the actual position of stock of material. Consequently entries in stock register in the instant case depict the number of bricks and tiles actually supplied by respondent to appellants whereas entries in measurement book depict the number of bricks and tiles actually used in execution of works. The respondentcontractor is entitled to the price of bricks and tiles actually supplied by him to the appellants irrespective of the number of bricks and tiles used by the appellants out of it in their works as depicted by entries in measurement book.

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However, it has to be noticed that according to Annexures A-1 and A-2, 16,050 tiles and 10,150 bricks were rejected by the appellants. Obviously the appellants shall be entitled to deduct the amount of the rejected bricks and tiles while preparing the final bill.

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Except as observed in the preceding paragraph, finding of the lower appellate Court is upheld. The said finding is the only finding that can be arrived at on the basis of the evidence led by the parties including entries in stock register of appellants themselves and the admission of their sole witness regarding number of bricks and tiles supplied by respondent to the appellants. Accordingly the instant execution second appeal is dismissed, except regarding observation made in the preceding paragraph.

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(L. N. MITTAL) JUDGE

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12.01.2012 'raj'

State of Haryana v. M/S Prem Kumar Subhash Kumar

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State of Haryana v. M/S Prem Kumar Subhash Kumar

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