Oral Judgment:Gita Gopi, J.1. This appeal has been preferred against the judgment and decree dated 28.03.2005 passed by the Court of learned Civil Judge (S.D.), Gandhinagar in Special Civil Suit No.55 of 1995 [New] (Special Civil Suit No.162 of 1988 [Old] ) whereby, the said suit preferred by the respondent herein, original plaintiff, was partly allowed and the appellants herein, State of Gujarat and The Executive Engineer, original defendants, have been directed to pay Rs.1,03,661/- (Rupees One lac three thousand six hundred sixty one only) together with interest at the rate of 18 per cent per annum from the date of filing of suit till its realization to the respondent-plaintiff.2. The facts in brief are that on 11.06.1979 the appellant- State had invited tenders for the construction of earthen dam, masonry water weir, etc. under the Dantiwada Irrigation Scheme. The respondent-plaintiff, who was engaged in the business of executing such works, had filled-in the tender along with other applicants. The tender of the respondent-plaintiff came to be accepted vide letter of acceptance dated 12.12.1980. The respondent-plaintiff provided requisite security deposit at the time of execution of the works contract. Thereafter, the appellant-State issued work order in favour of the respondent- plaintiff whereby, the respondent-plaintiff was required to commence the work on 17.12.1980. However, it appears that the work could not be commenced on account of some land acquisition related issues and therefore, the works contract came to be terminated in the year 1985.2.1 Being aggrieved by the action of the appellant-State, the respondent-plaintiff filed the suit in question before the Court below claiming Rs.83,14,988/- as damages along with interest at the rate of 18% per annum from the date of filing of suit till its realization along with costs. The said suit was partly decreed in favour of the respondent-plaintiff whereby, the appellant-State has been directed to pay the amount of security deposit of Rs.1,03,661/- together with interest at the rate of 18% per annum from the date of the suit till its realization, by way of impugned judgment and decree dated 28.03.2005. Being aggrieved by the same, the appellant-State has preferred the present appeal.3. Mr. Utkarsh Sharma, learned Assistant Government Pleader, submitted that the security deposit given by the respondent-plaintiff at the time of execution of the works contract was up to 31.11.1983. However, when the contract came to be disseminated in accordance with the terms of the agreement, the amount of security deposit given as bank guarantee was released by the appellant-State vide letter dated 07.01.1985. The respondent-plaintiff has never deposited any amount in cash and therefore, there is no question of returning any amount, as directed by the Court below. It was, therefore, prayed that the impugned judgment and decree passed by the Court below is erroneous and deserves to be quashed and set aside.4. Mr. Nirav Mishra, learned advocate appearing for the respondent-plaintiff, submitted that the Court below had not believed the say of the appellant-State that it had released the amount of security deposit taken from the respondent-plaintiff since the appellant-State had not produced any documentary evidence in support of such say. Therefore, the Court below had decreed the suit partly in favour of the respondent-plaintiff by directing the appellant-State to make payment of the amount of security deposit with interest. It was, accordingly, prayed that the Court may not entertain the present appeal.5. Heard learned counsel on both the sides and perused the material on record. It respondent-plaintiff had filed the suit in question claiming damages of Rs.83,14,988/-. It appears from the record that the respondent-plaintiff was awarded the work contract by the appellant-State for constructing an earthen Dam in pursuance of the tender issued on 11.06.1979. However, on account of some issues relating to the acquisition of land, the project could not be proceeded with and the works contract entered into with the respondent-plaintiff came to be terminated in the year 1985. Before the Court below, the appellant-State had produced documentary evidence in form of the resolutions issued by the Central Government dated 26.12.1980 as also the order passed by the Ministry of Agriculture and Irrigation, Government of India dated 31.12.1980. It appears from the material produced on record that the Government of Gujarat had not obtained prior sanction / approval of the Government of India for the use of any "Forest Area" for "any other purpose" and therefore, the project in question could not be proceeded with and ultimately, the contract came to be terminated. Considering the aforesaid factual aspects, we are of the view that the Court below was justified in not holding the appellant-State of being guilty to perform its part of the contract.6. Insofar as the amount of security deposit given by the respondent-plaintiff is concerned, it was the case of the appellant-State before the Court below that it had returned the amount of security deposit to the respondent-plaintiff on 07.01.1985, i.e. in pursuance of the termination of works contract. The appellant-State has moved Civil Application No.01 of 2010 in the present appeal under Order 41 Rule 27 of Code of Civil Procedure for production of additional evidence. Along with the memorandum of civil application, a document in the form of letter dated 14.07.2005 of Dena Bank, Burhanpuri Bhagal Branch, Surat addressed to the Executive Engineer, Irrigation Department, Amreli has been produced, which states that the said Branch does not have any bank guarantee for Rs.1,03,661/- in the name of M/s. Bharat Vijay Construction Company, Surat, i.e. the respondent herein. Another document annexed along with the civil application is a letter dated 07.01.1985 of appellant No.2 herein addressed to the Manager, Dena Bank, Baranpuri Branch, Surat stating that the Bank Guarantee of Rs.1,03,661/- in favour of M/s. Bharat Vijay Construction Company, Surat is not required for further period by the Office of the appellant and hence, the same has been released and sent to the party concerned by Registered A.D. Post.7. The impugned judgment and decree was passed on 28.03.2005. It is to be noted that the communication of appellant No.2 informing the concerned Bank that the Bank Guarantee of the respondent-plaintiff has been released and which is sought to be produced by way of additional evidence is dated 07.01.1985. The said letter regarding release of the Bank Guarantee, though being of the year 1985, was never produced before the Court below in the suit proceedings for reasons best known to the appellants. In the civil application, it has been urged that though the Bank Guarantee furnished by the respondent-plaintiff was released at the instance of the appellants themselves, the respondent-plaintiff has taken a dishonest stand contending that the amount of security deposit has not been paid. It was contended that the appellant-State has been wrongly fastened with the liability to pay interest on the said amount of Bank Guarantee. It is also contended that the documents in question are public record and could not be forged and therefore, their non-production in the suit proceedings would not prejudice the defence of the respondent-plaintiff.8. The civil application has been moved under Order 41 Rule 27 of CPC. Under the said provision, additional evidence could be adduced under any one of the three situations provided therein. For ready reference, the said provision is reproduced hereunder;"27. Production of additional evidence in Appellate Court. -(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not produced by him at the time when the decree appealed against was passed, or(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reasons for its admission."8.1 It is well-settled that additional evidence cannot be permitted to be adduced so as to fill-up the lacunae or to patch up the weak points in the case, as has been held by the Apex Court in the case of N. Kamalam v. Ayyaswami reported in (2001) 7 SCC 503. The trial Court has framed issues at Exhibit-12. Before the Court below, the appellants were called upon to prove the issue that there was no concluded contract between the parties, which was answered in the negative. The appellants had every opportunity to produce the aforesaid documents in the suit proceedings but, they never did so. Now, by producing the said documents with a plea to consider them as additional evidence, the appellant-State intends to fill-up the lacunae, which could not be permitted. Considering the totality of facts, we are of the view that t
Please Login To View The Full Judgment!
he direction to return the amount of security deposit has to subsist; however, the imposition of interest at the rate of 18% per annum on the said amount is onerous as the said amount is public money.9. In the result, the appeal is partly allowed. The impugned judgment and decree dated 28.03.2005 passed by the Court of learned Civil Judge (S.D.), Gandhinagar in Special Civil Suit No.55 of 1995 [New] (Special Civil Suit No.162 of 1988 [Old] ) qua directing the appellant-State to pay Rs.1,03,661/- to the respondent-plaintiff is confirmed. However, insofar as the direction to pay interest at the rate of 18% per annum on the said amount is concerned, the same is modified and reduced to simple interest at the rate of 6% per annum, which shall be payable from the date of decree dated 28.03.2005 till the date of refund. The impugned judgment and decree stands modified accordingly. Registry to send the record and proceedings, if lying with this Court, to the trial Court concerned forthwith. The civil application stands disposed of accordingly.