1993CLC615 (PLP)

The defendants having failed to settle plaintiff's account the plaintiff Wed the present suit challenging the actions of the defendants and claiming inter alia, the refund of the security deposit of Rs.5,000, cost of equipments valued at Rs. 50,000, and payment for work executed by the plaintiff. Service of the suit was effected on the defendants but on their failure to file the written easement judgment was pronounced under rule of Order 8, C.P.C. and consequently a preliminary decree was passed on 19‑4‑1978. In pursuance of the said decree the Nazir was directed to take account as prayed by the plaintiff. It appears, however, that the Court's direction was not conveyed to the Nazir and the matter remained pending for a long time and ultimately on 20‑5‑1991 the Nazir was once again required to submit his report in the light of the decree passed earlier. The Nazir submitted his report on 22‑2‑1992 according to which he found that the plaintiff is entitled to a sum of Rs. 2,02,313.70 from the defendants in respect of the work executed by him under d the contract in dispute. Mr. SA. Mannan filed objections to the said report and has attacked the same to his arguments before me mainly on three grounds. His first objection is that the defendants' document titled `General Abstract' from which the Nazir has picked up the figure of Rs. 2,02,314 as the value of the work executed by the plaintiff, also mentions the value of the work executed by the Department at the cost of the plaintiff and, therefore. if the document is taken as a whole an amount of Rs. 63.193.84 would, thereunder, be payable by the plaintiff to the defendants. His submission was that Nazir has not taken into consideration the amount to be recovered from the plaintiff in respect of the work done by the defendants at the cost of the plaintiff. His second objection is that in addition to the work execute by the defendants on behalf of the plaintiff the defendants were also entitled to recover from the plaintiff the usual payments made on behalf of plaintiff towards income‑tax and amounts paid to the plaintiff by way of secured advances for purchase of material. Both these items, he stated, are also mentioned in the aforesaid document. The amount towards income‑tax was Rs. 6069 and that for the secured advances Rs. 28,403 thus totalling Rs. 34,472 which amount too was deductible from the payment due to the plaintiff. His last objection is that the Nazir fade consider the claim of the defendants against the plaintiff. In so far as the first objection is concerned, the Nazir has explained that in working out the amount of Rs. 2,02,313.70 he played reliance on the claim submitted by the plaintiff as also documents submitted by defendants which fully supported plaintiff's claim. According to plaintiff's claim, the value of work executed by him, inclusive of the 22% agreed addition on those items for which Pak. P.W.D. rates existed, was Rs.2,67,073.70 and out of this amount an amount of Rs.64,760 paid to the plaintiff against his third running bill was deducted with` the result that the balance that remained due was Rs.2,02,313.70. There appears little doubt with regard to the correctness of the claim of the plaintiff, .for, in the earlier mentioned `General Abstract' submitted by the defendants themselves the amount of Rs. 2,02,314 is shown as payable to the plaintiff. Similarly, another document bearing the signature of P.W.D's. Assistant Engineer and titled `Recovery Statement' shows the value of the work executed by the plaintiff as Rs. 2,67,074 and the amount due to him as Rs. 2,02,314 on which income‑tax deduction of Rs.6,069, at 3% has been calculated. In so far as the objection regarding the Nazir's failure to deduct from this amount the value of work executed by the defendants at the cost of the plaintiff is concerned, the Nazir in his Report has stated that the defendants have failed to produce all the records to enable the Nazir to determine the value of work done by the defendants. According to the Nazir the defendants failed to produce all the relevant records and even the documents produced by them did not support each other. Be that as it may, here the question as to whether the defendants would be entitled to claim any amount from the plaintiff for work allegedly executed by them at the cost of the plaintiff, would depend on the determination of the issue as to whether or not they were justified in resorting to clause 3(b) of the agreement. The defendants could not have acted under clause 3(b) at their whim, but only if certain pre‑conditions existed. Alongwith the plaint the plaintiff has annexed several letters showing that the delay in the execution of the work, if not wholly, partly was due to the failure of the defendants. In any case, that would have been an issue in suit and could have been decided on the basis of evidence. However, as stated earlier, the present suit was decreed ex parte against the defendants on their failure to file written statement. Defendants' application for setting aside the ex parte decree was dismissed and so also the High Court Appeal filed by them. In this view of the matter, it is no longer open at this stage to consider as to whether the defendants were entitled to resort to clause 3(b) and consequently to allow them any amount for work that may have been executed by them allegedly at the cost of the plaintiff. As such in so far as the first objection is concerned, it has no merit and is rejected. As regards the second objection, it would appear that in the `General Abstract', referred to above, an amount of Rs.6,069 towards income‑tax and an amount of Rs. 28,403 towards secured advance is shown as recoverable from the plaintiff. The plaintiff, present in Court, does not deny that he was liable to income‑tax deductions. He also admits that secured advances for purchase of material were given by the defendants. Accordingly, both these amounts are in the nature of payments to the plaintiff and would be deductible from payments due to him irrespective of whether the action taken by the defendants under clause 3(b) of the agreement was proper or not. As such the Nazir ought to have allowed the deduction of these two amounts totalling Rs. 34,472 from the amount found due to the plaintiff. 1 would, therefore, allow these two amounts totalling Rs. 34,472 to be deducted from the amount of Rs.2,02,314.00 found due to the plaintiff towards the said work executed by him. As regards the third objection, this is closely connected with the first objection dismissed earlier and for the reasons already stated it has no force. In the absence of‑any counter‑claim by the defendants there can hardly be any question of entertaining their claim at this stage. In the result, on the basis of the accounts taken, I hold that the defendants are liable to pay to the plaintiff and the plaintiff is entitled to receive from the defendants a sum of Rs.1,67,841.70 on account of work executed by the plaintiff under the contract in dispute. This amount of Rs.1,67,841.70 will be in addition to the amount of Rs.5,5000 which has already been paid by the defendants to the plaintiff in Execution Application No. 7 of 83 and in pursuance of the said preliminary decree in this suit. Accordingly, the suit is decreed against the defendants in. the total sum of Rs.2,22,841.70 with costs. The sum, however, includes Rs.55,000 already paid by the defendants as mentioned above and therefore there now remains to be paid by the defendants to the plaintiff the balance decretal amount of Rs.1,67,841.70. This decree to be satisfied within the period of three months from the date hereof. The plaintiff appears to have paid court‑fee on Rs. 56,()

00. Now in view of the further relief granted to him, he is liable to pay additional court fee. H.B.T./S‑959/K Suit decreed.