Judgment on Board
Goutam Bhaduri, J.
1. By this appeal, the appellant/plaintiff would call in question the legality and validity of the impugned judgment and decree dated 27-7-2016 passed by the 1st Additional District Judge, Bilaspur, in civil suit No.74-B/2014. The decree is of Rs.14,81,671/- as against claim of Rs.35,23,725/-.
2. Learned counsel appearing for the appellant/plaintiff, on instructions, would submit that the appellant is not aggrieved by other findings except symbolic penalty which is imposed by the Court below at para 14 of the impugned judgment. Learned counsel would submit that the penalty which has been imposed would show that no evidence exists or any facts were available before the Court below to impose such penalty. He would further submit the said part of symbolic penalty of Rs.20,000/- which is imposed may be set aside as it may turn otherwise against the appellant in preparation of final bill by including the escalation of price of goods.
3. Learned counsel appearing for the respondents/defendants, per contra, would submit that though the symbolic penalty has been imposed, but the said imposition of penalty is as per admission of the plaintiff in its plaint at paras 13 & 14, therefore, the finding recorded by the Court below with regard to imposition of penalty is well merited. He would further submit that in cross-examination, the admission exists.
4. We have heard learned counsel appearing for the parties and perused the record.
5. Since the issue confined to the finding arrived at by the trial Court only with regard to imposition of penalty, we do not wish to deliberate on the other issues. We would only confined to see whether imposition of penalty of Rs.20,000/- by the Court below was justified in the facts and circumstances of the case and whether any evidence is available before the trial Court to impose such symbolic penalty.
6. The facts of the case, which are not in dispute, are that on 19-12-2007 a Notice Inviting Tender (NIT) for coal handling was issued by the respondents/defendants for which the Letter of Intent (LoI) was issued in favour of the appellant/plaintiff, who was the successful bidder, on 26-4-2008. Thereafter, an agreement was executed on 19-6-2008 whereby the work was to be completed within 9 months, therefore, it was to be completed by 11-2-2009. During continuation of agreement, extension was given and eventually the work completion certificate was given on 8-3-2010, thereby, according to the respondents, a delay of 8 months (approx.) was caused. Therefore, on different heads the defendants have deducted the amount, for which the recovery suit for Rs.35,23,725/- was filed by the plaintiff.
7. After hearing the parties and considering the evidence, the learned trial Court passed a decree to the tune of Rs.14,81,671/-. Primarily the appellant is aggrieved by the finding recorded by the trial Court at para 14 of the impugned judgment. This made us to lay down our hands on the facts and evidence on which such finding was arrived at.
8. Reading of para 13 of the judgment would show that the trial Court has held that a crane was made available to the plaintiff to discharge the job for which an amount of Rs.42,625/- was deducted. The finding also recorded that neither the plaint nor the written statement disclose the fact that in case the work is not completed within the stipulated time how much amount would be imposed by way of penalty. As per the plaint, delay of 6 months 19 days has caused and out of which delay of 6 months 3 days was caused at the behest of the defendants and penalty of Rs.2,24,064/- was imposed for delay of 13 days. The Court held that there is no ground or evidence has been led with regard to imposition of penalty. So the finding of learned Court below is that imposition of penalty was wrong.
9. Reading of paras 6 & 7 of the cross-examination of DW-1 Tapas Kumar Pal, it shows that on 6-3-2010 the Senior Manager had forwarded the recommendation to extend the time without imposing penalty. This witness further deposed that the Senior Engineer (Civil) has evaluated the entire facts, which were existing on the spot and thereafter, had recommended for extension of time without imposing any penalty. The statement further purports that extension of time was recommended as per Ex.P/1 (note sheet) without imposing a penalty. Thus, the finding of the trial Court, on which the penalty was imposed by the defendants, was without any basis, appears to be correct. Admittedly, there is no cross appeal against this finding, therefore, the finding of the trial Court that the imposition of penalty was without any evidence reading with the statement of DW-1 Tapas Kumar Pal appears to be correct.
10. Now coming to para 14 of the judgment the trial Court has recorded that though the defendant has failed to prove what was the basis to impose penalty and nothing has been placed before the Court but since the crane owned by the defendant company was used by the plaintiff as such it would deem to carry rent and in such background after adjustment of dues a symbolic penalty of Rs.20,000/- was imposed. We fail to see any reason in such finding. If at all crane was given by the respondent the official record must contain such allocation and rate of rent. If such documents have not been placed before the Court, it cannot pass a decree on a deeming fiction. If those documents i.e. allocation of crane on rent and adjustment of dues have been withheld by the respondent then the adverse inference is required to be drawn. Consequent
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ly, the amount of penalty, which the appellant is aggrieved cannot be allowed to sustain. 11. Accordingly, we set aside the finding recorded by the Court below at para 14 of the judgment with regard to imposition of symbolic penalty of Rs.20,000/- on the ground that no facts or evidence exist to impose such penalty. Since there is no challenge with regard to other findings of the impugned judgment and decree, the same would be maintained. 12. In the result, the present appeal is disposed of in the aforesaid terms, leaving the parties to bear their own cost(s). 13. A decree be drawn accordingly.