The present first appeal has arisen out of the common judgment and order rendered in Special Civil Suit No. 352/90 by the Civil Judge (S.D.) at Mehsana dated 31.3.1998. The appellant-Board is the original defendant which has filed the present appeal being aggrieved with the impugned judgment on the grounds, inter alia, that the court below has failed to appreciate that the respondent original plaintiff had committed breach of the contract and therefore he was not entitled to recover the security deposit. It has been contended that the court below ought to have appreciated that even after extension of the time the work was not completed and therefore the impugned order regarding payment of the amount of Rs. 57,752/- along with interest @ 12% is erroneous. 2. Heard learned advocate Mr. Munshaw for the appellant- Board and learned advocate Mr. Sukhwani for the respondent.
3. Learned counsel Mr. Munshaw made submissions in detail referring to the papers and submitted that the findings are given in cognate matter against the plaintiff and as there was a delay and breach of the terms and conditions of the contract the amount of security deposit could not have been refunded. Learned counsel Mr. Munshaw submitted that in any event at least the interest @ 12% ought not to have been awarded and therefore the present appeal may be allowed to the limited extent.
4. Learned advocate Mr. Sukhwani submitted that the court below, after having appreciated the evidence, has declined to entertain the suit filed by the contractor (appellant in First Appeal No. 5501/98). However, the amount of security deposit would be refunded and the court having examined all aspects has ordered to refund the amount which is just and proper.
5. In view of rival submissions it is required to be considerd whether the present appeal can be entertained or not.
6. As it is evident, this appeal also arises out of the common judgment which has been rendered by the court below and another First Appeal No. 5501/98 has also been filed by the contractor. On appreciation of evidence and after considering the material and evidence, the court below has ordered for refund of the amount of security deposit, which would not call for any interference with regard to the rate of interest. As First Appeal No. 5501/98 filed by the contractor has also not been entertained, the present appeal also does not call for any interference with the same judgment and award on the aspect of interest.
7. Therefore, without any further elaboration, the present appeal deserves to be dismissed and accordingly stands dismissed as First Appeal No. 5501/98 filed by the respondent- contractor (appellant in the said appeal) has also not been entertained.
(Rajesh H. Shukla, J.) (hn)