THE HON’BLE SRI JUSTICE V.SURI APPA RAO CIVIL REVISION PETITION No.4915 OF 2008 Dated: 19.06.2014 Between:
M/s.Gayatri Projects Limited .. Petitioner-Plaintiff and The State of A.P. & others .. Respondents-defendants THE HON’BLE SRI JUSTICE V. SURI APPA RAO CIVIL REVISION PETITION No.4915 OF 2008 ORDER:
This Civil Revision Petition under section 115 of the Code of Civil Procedure has been preferred by the petitioner-plaintiff aggrieved over the order dated 30.07.2008 passed in E.P.No.10 of 2006 in O.S.No.15 of 2000 whereby and whereunder the I Additional District Judge, Karimnagar, dismissed the execution petition filed by the petitioner herein.
Heard both sides and perused the material on record.
For the sake of convenience, parties hereinafter are referred to as they are arrayed before the Court below.
Relevant facts, leading to filing of present revision case, in a nutshell are as follows:
Plaintiff filed O.S.No.15 of 2000 before the trial Court for declaration to recover the liquidated damages of bills as illegal and perpetual injunction restraining the defendants from collecting damages and also for recovery of Rs.1,63,25,818/- from D.2 and Rs.1,39,53,261/- from D.3 towards refund of liquidated damages with 12% interest. The trial Court vide judgment dated 27.03.2006 passed a decree for Rs.1,63,25,818/- + Rs.1,18,56,000/- together with 6% interest from the date of collection of liquidated damages till the date of realization in addition granting costs of Rs.12,39,481/-.
Aggrieved over the same, defendants-Government filed appeal before this Court. During pendency of appeal, plaintiff approached the defendants with letter dated 26.09.2006 along with particulars of amounts due to it in a tabular form, and undertaking to waive the interest payable to it on the decreetal amount on the basis of mutual settlement without initiating further legal course or action on the judgment/decree. The plaintiff also addressed a similar letter under Ex.A.5 dated 20.09.2007 undertaking to forego the interest payable to it on the decreed amount on the basis of mutual settlement to enable withdrawal of the appeals pending in this Court and as such the plaintiff requested the defendants to release the decretal amount without costs. Subsequent, thereto the Government issued G.O.Ms.No.201 dated 12.09.2007 ordering for refund of liquidated damages to the plaintiff, in pursuance thereof, the plaintiff has withdrawn Rs.2,81,83,898/- towards part satisfaction. Thereafter on 06.02.2008 the plaintiff addressed Ex.A.6 letter to the Chief Engineer for release of balance liquidated charges and court expenses. Since the defendants have not turned to the said representation dated 06.02.2008, plaintiff filed Execution Petition before the Executing Court for realization of amounts.
Defendants filed a counter before the trial Court contending that pursuant to the representations of the plaintiff to the defendants agreeing to forego the interest awarded, the defendants have issued G.O.Ms.No.201 dated 12.09.2007 and the plaintiff also withdrawn the amounts. As such, the plaintiff again cannot initiate E.P. proceedings as a second round of litigation.
Plaintiff contended before the Executing Court that interest has been calculated only for the delayed period of 1 year 7 months and four days i.e. after expiry of eight weeks period as mentioned in their representation dated 26.09.2006. It is further contended that there is no whisper of costs either in its representation or the communications of the defendants. As such, the plaintiff is entitled for costs as ordered by the trial Court in O.S.No.15 of 2000.
Defendants contended before the Executing Court that the plaintiff by its representations made the defendants to pay the amounts and the plaintiff having withdrawn the amounts again cannot initiate E.P. proceedings claiming some more amounts.
The Executing Court after perusing the oral evidence of P.W.1, R.W.1 and document evidence of Exs.A.1 to A.6, held that basing on the representations of plaintiff, the defendants have paid amounts and have also withdrawn the appeals filed by them before the High Court and thereby the defendants are deprived of their right to agitate the correctness of judgment and in such circumstances the plaintiff cannot start a second round of litigation, which it foregone in terms of its representation under Ex.A.3. Thereby, the Executing Court terminated the E.P. recording full satisfaction of decree in O.S.No.15/2000. Aggrieved over the same, present revision has been preferred by the plaintiff.
Learned counsel for the revision petitioner submitted that after Ex.A.3 representation dated 26.09.2006, the Government issued Ex.A.4-G.O.Ms.No.201, dated 12.09.2007 and there was delay in depositing the amount by the respondent/Government. Therefore, the revision petitioner is entitled for the interest for the period of delay and also costs of the suit. In its representation, the revision petitioner has specified the amount payable to them as Rs.1,63,818/- + Rs.1,18,56,000/- decree amount in O.S.No.15 of 2000 and the same was withdrawn by the revision petitioner. Learned counsel for the revision petitioner contends that the interest for the delay period and costs of the suit have to be paid.
Per contra, learned counsel for the respondent submitted that in view of the undertaking given by the revision petitioner, appeal filed by the Government has been withdrawn and the decree amount of Rs.1,63,818/- + Rs.1,18,56,000/- was deposited as per G.O issued by the Government and the same was withdrawn. Therefore, the question of payment of interest for the delay period and costs does not arise and there was specific mention about the said payments in the representation of the revision petitioner and also in the G.O. issued by the Government. Therefore, the learned District Judge rightly terminated E.P regarding the full satisfaction and there are no grounds to interfere with the same.
Admittedly, O.S.No.15 of 2000 filed by the revision petitioner for refund of the liquidated damages, Government filed appeal against the judgment and decree passed by the learned I Additional District, Karimnagar on the advise of the Special Government Pleader, who conducted the case before the trial Court. After filing of the appeals and when they are at SR stage, the revision petitioner approached the Administrator-cum-Chief Engineer with the proposal to waive interest payable to them on the decree amount. Considering the representation of the revision petitioner and after taking opinion of the learned Advocate General, the Government issued G.O. dated 12.09.2007 agreeing to pay the decree amount without interest. Accordingly, deposited the amount and the same was withdrawn by the revision petitioner. Now the revision petitioner came up with the plea that he is entitled for interest for the delayed period and also the costs of the suit.
Pursuant to Ex.A.3-letter, the respondent/Government has withdrawn the appeal at SR stage, though there is good case to prefer appeal, on the basis of the advise of the Government Pleader acceded to the request of the revision petitioner and issued G.O for payment of principal amount as agreed by the revision petitioner without any further legal recourse or action on the judgment. There is no specific mention about payment of costs and also in the representation or in the G.O issued by the respondent/Government based on the representation of the revision petitioner. Therefore, the revision petitioner is not entitled for costs and the interest in which the respondent/Government cannot be penalised for payment of interest, in the absence of specific agreement between the parties under Ex.A.3-letter and E.A.4-G.O. It is relevant to extract the representation of the representation requesting the respondent/Government to realise the principal amount:
In this connection we beg to submit that in view of urgency to clear our long pending liabilities arose during the performance of the subject Modernization works, we hereby request you to release the aforementioned L.D. amount to avoid further litigation and delay. In this regard we agree to waive the interest payable to us on the decreed amount on the basis of mutual settlement without initiating further legal course or action on the judgment/decree.”
As seen from Ex.A4-G.O. issued by the Government on the request made by the revision petitioner vide Ex.A.3 letter and after obtaining opinion of the Advocate General, the respondent/Government accede the request of the revision petitioner and deposited the amount and the same was withdrawn by the revision petitioner. The revision petitioner cannot claim further amount for the delayed payments and costs of the suit which were not claimed in the representation. Ex.A.4 G.O. was issued in terms of the request made by the revision petitioner and deposited the decretal amount, waiving the interest and the same has been withdrawn by the revision petitioner. The execution Court after considering the contents of Ex.A.3-letter and Ex.A.4-
G.O has rightly terminated the execution proceedings recording the full satisfaction of the decree in O.S.No.1 of 2001 and therefore, I do not seen any illegality or irregularity in the order passed by the executing Court. Therefore, the revision petition is liable to be dismissed.
Accordingly, the revision petition is dismissed. There shall be no order as to costs.
V.SURI APPA RAO, J Dated 19.06.2014 Kvrm/kk THE HON’BLE SRI JUSTICE V.SURI APPA RAO CIVIL REVISION PETITION No.4915 OF 2008 Dated: 19.06.2014