IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1741 of 2008 To FIRST APPEAL No.1744 of 2008 With CIVIL APPLICATION No. 5883 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE JAYANT PATEL Sd/-
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
=========================================
========================================= SARDAR SAROVAR NARMADA NIGAM LTD. & 1 Versus JAIMIN BROTHERS =========================================A ppearance:
MR GC MAZMUDAR for the Appellants MR BS PATEL for the Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE C.L. SONI Date : 28/09/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE C.L. SONI)
1. All these appeals raise common questions of facts and law. They are therefore, heard and decided together.
1.1. The parties in all the appeals are same. The respondent had filed four suits for recovery of different amounts. In all the suits, judgment and decree was passed on 2.4.2007 and by same learned Judge. The appeals are at the instance of Sardar Sarovar Narmada Nigam. Appeal No.1741 of 2008 is filed against the judgment and decree dated 2.4.2007 passed by learned 6th Additional Senior Civil Judge, Vadodara in Special Civil Suit No.945 of 1993, whereby the learned Judge has partly allowed the suit of the respondent and ordered the appellants to pay Rs.8,14,026.78 ps. to the respondent with interest at the rate of 12% per annum from the date of the suit till realization, Appeal No.1742 of 2008 is filed against the judgment and decree in Special Civil Suit No.946 of 1993, whereby the learned Judge has partly allowed the suit of the respondent and ordered the appellants to pay Rs.13,52,961.65ps. to the respondent with interest at the rate of 12% per annum from the date of the suit till realization, Appeal No.1743 of 2008 is filed against the judgment and decree in Special Civil Suit No.947 of 1993, whereby the learned Judge has partly allowed the suit of the respondent and ordered the appellants to pay Rs.13,74,435.65 ps. to the respondent with interest at the rate of 12% per annum from the date of the suit till realization and Appeal No.1744 of 2008 is filed against the judgment and decree in Special Civil Suit No.948 of 1993, whereby the learned Judge has partly allowed the suit of the respondent and ordered the appellants to pay Rs.8,72,869.92 ps. to the respondent with interest at the rate of 12% per annum from the date of the suit till realization.
2. The respondent was awarded a public contract for the work of residential building in NPMC Unit-II Phase-II 83 to 144 KM at Kalol of four categories. Therefore, four contracts were executed. Because of the claims in respect of each of the contract, the respondent had filed four suits. It is the case of the respondent in each of the suit that the work was to be completed within a period of 11 months. The contract was to be completed within the prescribed time limit but could not be completed on account of various reasons, attributable to the appellants. There were frequent changes in the office location of the appellants, in the design of the project and in the instructions for carrying out the work, because of which, the Chief Engineer had visited the site and suggested changes which required extra items and excess quantity of materials to be used and materials suggested by the Engineer approved and brought in after a period of 6 to 7 months and therefore, the work was delayed. Since the work could not be commenced because of the required decision, instructions and necessary supervision for the work, the work could be hardly commenced upto October 1990 and the respondent was already put to heavy loss and in October 1990, due to Gulf war, there was already shortage of diesel and there was stiff price rise in petrol and because of such hindrance, the work could not be completed, and therefore, extension of time was required to be sought which was granted and ultimately, the work was completed. The appellants, however, did not release payment, which resulted into heavy loss to the respondent. The suits were therefore, required to be filed for various claims put forth in the suits.
3. The suits were resisted by the appellants by filing written statements, denying that there was frequent changes in the office location, designs and instructions. It was further denied that the work was delayed because of the changes suggested by the Chief Engineer and for use of the suggested materials. It was also denied that the respondent had timely commenced the work and also that there was loss incurred by the respondent for the rise in prices. It was stated that extension was granted to the respondent out of sympathy. The appellants also denied all the claims made by the respondent in the suits, on the ground that it was the respondent who was responsible for breach of the contract and was not entitled to any of the claims put forth in the suit. The appellants, therefore, prayed to dismiss the suits with costs. The appellants also raised issue of jurisdiction of Civil Court.
4. In all the suits, the respondent examined its witness. The witness proved execution of the contract and has also produced various documentary evidence on record. Considering the evidence available on record, the learned Judge has partly allowed all the suits and ordered the appellants to pay different amounts as stated above with interest at the rate of 12% per annum.
5. We have heard the learned advocates for the parties.
5.1. Learned advocate Mr.G.C. Mazmudar appearing for the appellants in all the appeals has contended that by virtue of the Gujarat Public Work Contracts Disputes Arbitrations Tribunal Act, 1992 (hereinafter referred to as 'the Act'), the Civil Court had no jurisdiction to entertain and decide the suits. He submitted that the suits were filed by the respondent in the year 1993, whereas the Act is of 1992 and therefore, the Civil Court not only could not have entertained the suits but also could not have proceeded with and delivered the judgment and decree in such suits. He submitted that since the Tribunal had already come into force when the suits were pending before the Civil Court, the Civil Court ought to have transferred the suits to the Tribunal and ought not to have proceeded and decided the suits. He, therefore, submitted that the judgment and decree passed by the Civil Court being without jurisdiction is required to be quashed and set aside in all the suits.
5.2. Learned advocate Mr. Mazmudar further submitted that the suits were resisted by filing written statements by the appellants on all the counts. He submitted that even if there was no evidence adduced by the appellants, by examining any witness, the respondent was not entitled to have its all claims allowed in the civil suits. On the basis of the documentary evidence available on record, the respondent was not only not entitled to any of the claims for the work done but also not entitled to claim on account of rise in the price of the petrol and materials because of the Gulf War as also the respondent was not entitled to interest for the period prior to the suits and was also not entitled to the interest at the rate of 12% per annum in absence of any contract between the parties as regards the rate of interest. Mr. Mazmudar thus urged to allow the appeals and quash and set aside the judgment and decree passed by the learned Trial Judge in all the suits.
6. Replying to the first contention as regards the jurisdiction of the Civil Court, learned advocate Mr. B.S. Patel appearing for the respondent submitted that in the present case, the suits were filed in the year 1993 and since the Act of 1992 came into force with effect from 1.1.1994, the Civil Court would have jurisdiction to decide the suit filed before 1.1.1994. Mr. Patel has relied on the decision of this Court in the case of Ajay S. Patel, Engineers Contractors and Consultants Vs. State of Gujarat and Anr. Reported in 2007(2) GLH 567. In reply to the other submissions of Mr. Mazmudar, learned advocate Mr. Patel submitted that the respondent had performed its part of the contract and on the basis of the evidence adduced before the Court, the respondent was entitled to all the claims put forth in the suits and the learned Judge has not committed any error in partly allowing the suits. Mr. Patel further submitted that the evidence of the respondent stating that the delay in completing the work was absolutely attributable to the appellants has remained unchallenged and he further submitted that it was the appellants who recommended for extension of time to complete the work because there was no fault on the part of the respondent for delay in completing the work. Mr. Patel thus submitted that since the respondent has proved that because of the change in the plan, drawing and specification, varying in quantity of material, use of the extra items and because of the other factors, the respondent was not responsible for delay in work and was having been granted extension of time on the recommendation of the appellants, the learned Judge cannot be said to have committed any error in granting various claims of the respondent.
6.1. Learned advocate Mr. Patel has also submitted that the respondent was entitled for increase of amount of bill on account of rise in the price of the petrol and materials because of the Gulf War. He pointed out that there was rise in the price of the petrol and other commodities, which could be said to be statutory rise because it was under the approval of the Government and therefore, the respondent was rightly granted increase in the ultimate amount of the work done under contract. He also submitted that the work executed by the respondent was of the commercial nature, even if there was no contract between the parties for the rate of interest for the period prior to the suit, by virtue of the Interest Act, the respondent would be entitled to interest at the commercial rate for the period prior to filing of the suits as also for the subsequent period and the learned Judge has granted only 12% interest as against the demand of 18% per annum and exercised the discretion legally which may not be interfered with by this Court. He ultimately urged to dismiss the appeals of the appellants.
7. As regards the first contention about the jurisdiction of the Civil Court, the decision in the case of Ajay S. Patel (supra), relied on by Mr. Patel governs the issue of jurisdiction raised by Mr. Mazmudar. The said decision was delivered in review application being Misc. Civil Application No.102 of 2006 in First Appeal No.314 of 2000. In the said decision, judgment and order dated 6.10.2005 delivered in First Appeal No.413 of 2000 taking the view that even if suit was filed prior to 1.1.1994, Civil Court would have no jurisdiction, was recalled and it is held that even if the suit was filed prior to 1.1.1994, i.e. the date of coming into force of the Act, the Civil Court would not loose the jurisdiction to decide the suit. In view of this decision, the first contention of the learned advocate Mr. Mazmudar cannot be accepted and the same is rejected.
8. We find that the respondent has examined its witness in support of his various claims in the suit. The said witness has deposed that there were changes in the plan, drawing and specification. There was variation in the quantity of the material to be used. There was a visit of the Chief Engineer who suggested for change in the material to be used. The witness of the respondent has further deposed that because of the circumstances created by the appellants, it was not possible to complete the work in time. The said witness has further deposed that it was the appellants who recommended for extension of time considering the circumstances created by the appellants themselves. The said witness has produced on record the documentary evidence to prove the recommendation made by the appellants for extension of time. We have gone through the said communication, produced at Exh.35 in one suit and like communications in other suits. We find that the appellants took into consideration slow progress of work by respondent during four months of rainy season and found that it was not possible to complete the work by respondent within the time limit and therefore, extended time. However, as per the case of the respondent, it continued the work in expectation of further extension which was not approved and amount was deducted from final bill towards time limit deposit.
9. In light of the above discussion, we may now consider each of the claim allowed by the learned Judge in the suits.
9.1. In Special Civil Suit No.945 of 1993, Claim No.1 in the suit comprises in itself more than one claims. The learned Judge has held the respondent entitled to Rs.8,066.86 ps. for the work of more excavation in the foundation, Rs.2,500/- for testing charges, Rs.1,029.50 ps. as against the claim of Rs.2,059/- on account of interest on withheld amount, Rs.7,951/- on account of use of the increased quantity for the work carried out, Rs.5,000/- which is kept as deposit, Rs.7,516/- for difference of rates for the work and the payment at reduced rate made to the respondent. Rs.11,641/- for carrying out the work of lintel above the doors and windows, being at the increased rate on account of the material becoming costly. We find that all the above-claims in Claim No.1 relate to the work done by the respondent which was proved by evidence of the respondent including deposit. Therefore, we do not think it proper to disturb the above claims. In respect of other three suits except difference in figure of amount, since claims in claim No.1 are almost of similar nature, the same reasoning would apply to such claims in all the other three suits.
9.2. In this Claim No.2, the respondent has claimed an amount of Rs.2,78,694/- on account of overhead and overstay, i.e. office establishment, camps, kitchens, mess, supervisory staff etc. This claim was made by the respondent at the rate of 15% of the tender cost. For this claim, the learned Judge has considered the provisions of Section 73 of the Contract Act and one report of the Rates and Costs Committee, Ministry of Irrigation and Power, Central Water and Power Commission for the purpose of assessing the claim. Learned Judge has also observed that the evidence of the witness of the respondent has remained un-controverted. Learned Judge ultimately considered the claim at the rate of 10% instead of 15% and has awarded Rs.1,85,000/- instead of Rs.2,78,694/- claimed by the respondent.
9.3. As regards this claim on account of overhead is concerned, we find that under Clause 57 of the Contract Act, the respondent was under obligation to provide and maintain all facilities, like office establishment, camps, kitchen and various other facilities like urinals, canteen facilities etc. It is required to be noted that it is not the case of the Contractor that the appellant took abrupt action of termination of contract and such action was illegal. In fact, as per the case of the respondent, extension of time to complete the work under contract was granted but the work could not be completed and further extension was not approved. In our view, when the respondent could not complete the work in extended time limit and continued the work for further period which was not approved and when it continued with overhead expenses to complete the work, the appellant cannot be made responsible for such expenses. It is required to be noted that the respondent was aware about various terms of the contract, including Clause No.57 as also Clause No.15-A, which reads as under:-
“15-A: The contractor shall not be entitled to claim any compensation from Govt. on account of delay by Government in the supply of materials entered in Schedule 'A' where such delay is caused by (i) Non-supply due to short allotment of quota in the case of materials available under quota regulations (ii) Difficulties relating to the supply of railway wagons, (iii) Fgrce majeure, (iv) Act of God, (v) Act of the country's enemies or any other reasonable cause beyond the control of Government.
In the case of such delay in the supply of materials, Government shall grant such extension of time for the completion of the works as shall appear to the Engineer- in-charge to be reasonable in accordance with the circumstances of the case. The decision of the Engineer in-charge as the extension of time shall be accepted as final by the contractors.
The above-said clause provided that the respondent Contractor was not entitled to any compensation on account of the reasons stated therein and if the respondent had worked beyond extended period of time, the contractor cannot lay claims on account of overhead and overstay simply on the ground that the appellant was responsible for the delay in completing the work. Since there was no premature termination of the contract and since the Contractor worked for full length of extended time limit and still could not complete the work and continued the work in expectation of further extension which was not approved, we are of the view that it is not a case where the Contractor was entitled to any amount on account of overhead and overstay. At this stage, we may refer the judgment of the Hon'ble Supreme Court in the case of Oil & Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd. reported in (2003)5 SCC 705. In the said judgment, the Hon'ble Apex Court has held that:-
(1) In terms of Sections 73 and 74 of the Contract Act, the terms of contract are required to be taken into consideration before arriving at conclusion whether the party claimed damages is entitled to the same;
(2) That if the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such compensation and that is what is provided in Section 73 of the Contract Act.
(3) If it is impossible to assess the actual loss or damage, reasonable compensation in case of breach would be awarded.
Therefore, terms of contract are relevant and required to be taken into consideration. As stated above, Clause 15-A of the contract would make the respondent dis-entitled to such claim of overhead and overstay. Learned Judge has thus committed an error in accepting the claim on account of overhead and overstay. We, therefore, disallow such claim of overstay and overhead. This very reasoning would apply in other three cases in respect of the claim of overhead and overstay.
9.4. In this very claim No.2, respondent has also claimed an amount of Rs.9006/- on account of loss of profit. Learned Judge has allowed this claim by relying on Clause 15 of the contract, on the ground that the appellant had curtailed the work under the contract without serving any notice to the respondent and therefore, the respondent was deprived of profit for the work remained to be completed. Learned Judge has however, considered the claim of loss of profit at the rate of 10% instead of 15% relying on the decision of the Hon'ble Supreme Court reported in AIR 1984 SC 1703 and AIR 1977 SC 1481.
9.5. We have already discussed above the circumstances under which the appellant had extended the time limit demanded by the respondent. We have also discussed that during this extended time limit, the respondent could not complete the work under the contract and took 3 to 4 months more to complete the work in expectation of approval of further extension of time by the appellant. However, as per the case of the respondent itself, second extension was not approved by the respondent. On this ground, we have already disallowed the claim of the respondent towards overhead and overstay expenses. We are, therefore, of the view that since there was no abrupt termination of the contract by the appellant and since the respondent could not complete the work within the first extended time limit and since no further time was extended, the respondent could not be made entitled to claim amount on account of loss of profit.
9.6. We may also notice Clause 15 of the Contract, which is reproduced as under:-
“Clause 15. No claim to any payment or compensation for restriction or for restriction of work: If any time after executive of the contract documents the Engineer-in-charge shall for any reason whatsoever, require the whole or part of the work, as specified in the tender, be stopped for any period or shall not require the whole or part of the work to be carried out at all or to be carried out by the contract, he shall give notice in writing of the fact to the Contractor who shall thereupon suspend or stop the work totally or partially, as the case may be in any such case, except as provided hereunder the Contractor shall have no claim to any payment or compensation whatsoever on account of any profit or advantage which he might have derived from the execution of the work in full but which he did not so derive in consequence of the full amount of the work not having been carried out on account of any loss that he may be put to on account of materials purchased or agreed to be purchased or for unemployment of labour recruited by him. He shall not have also any claim for compensation by reason of any alterations having been made in the original specifications drawings designs and instructions which may involve any curtailment of the work as originally contemplated. Where however, materials have already been purchased or agreed to be purchased by the Contractor before receipt by him of the said notice, the Contractor shall be paid for such materials at the rate determined by the Engineer-in- Charge provided they are not in excess of requirements and are of approved quality and/or shall be compensated for the loss, if any that he may be put to in respect of materials agreed to be purchased by him, the amount of such compensation to be determined by the Engineer-in- charge whose decision shall be final. If the contractor suffers any loss on account of his having to pay labour charges during the period during which the stoppage of work has been ordered under this clause, the contractor shall, on application, be entitled to such compensation on account of labour charges as the Engineer-in-charge, whose decision shall be final, may consider reasonable. Provided the Contractor shall not be entitled to any compensation on account of the labour charges if in the opinion of the Engineer-in-charge the labour could have been employed by the Contractor elsewhere for the whole or part of the period during which the stoppage of the work has been ordered as aforesaid.”
Clause 15 provides that if Engineer-in charge of the contract, for any reasons whatsoever require the whole or part of the work, as specified in the tender, be stopped for any period or shall not require the whole or part of the work to be carried out at all, he shall give notice in writing of the fact to the Contractor who shall thereupon suspend or stop the work totally or partially, as the case may be, in any such case, except as provided in this very clause, the Contractor shall have no claim to any payment or compensation on account of any profit or advantage which he might have derived from execution of the work.
9.7. In the case on hand, there was no question of giving any notice by the Engineer-in-charge for stoppage of the work or for curtailment of any work. In fact, it is the case of the respondent itself that the work was delayed because of certain reasons and the work was started at a later point of time and considering the circumstances, the extension of time was granted by the appellant. We have discussed above while dealing with the claim of overhead that extension of time was granted by the appellant at the request of the respondent on the ground that there was slow progress of the work because of the rainy season. Thus, considering such circumstances, extension of time was granted to the respondent. However, it is also a case of the respondent that during extended period of time also, the work could not be completed and in expectation of further extension, the work was continued. However, second time, extension was not approved. Therefore, there was no question of curtailment or stoppage of work by the Engineer-in- charge. Therefore, there was no question of issuance of any notice by the Engineer to the respondent. Learned Judge has, therefore, committed an error in relying on Clause 15 for grant of claim towards loss of profit. As discussed above, since the extension was already granted, taking into consideration the circumstances that during rainy season, slow progress in the work and thereafter also, since the work could not be completed by the respondent during extended period of time, second extension was refused and therefore, it could not be said that the respondent had suffered any loss of profit because of any illegal action on the part of the appellant. In view of this, we are of the view that the respondent is not entitled to any amount towards loss of profit. These reasonings would equally apply in cases of other three suits.
9.8. In the Claim No.2, the respondent has also claimed an amount of Rs.2,30,100/- on account of Gulf War and Rs.2,73,994/- for extra expenditure. It has come in evidence that the Gulf war had taken place in the month of October 1990 when the contract with the respondent was in progress. The respondent claimed 30% rise on account of rise in price of the petrol to the extent for the period from October 1990 till 8.3.1991. During this period, the respondent has carried out the work under the contract, amounting to Rs.7,67,000/-.
It is also found that there was a statutory rise in the price of the petrol, diesel and oil by 20% to 25%. It is also claimed by the respondent that because of such rise in the price of the petrol, there was also rise in the price of the material. It was further claimed that for the period from 30.3.1991 to 31.12.1991, the respondent had executed the work of Rs.6,84,985/- and for the said period, the respondent claimed 40% rise in the value of the work done. The learned Judge has observed that though as per the evidence, there was rise of 97.9%, but the respondent claimed only 40% rise. The learned Judge has further recorded that since the respondent has not given any evidence, according to the judgment on which the reliance is placed by the respondent reported in AIR 1968 SC 1413 and AIR 1999 SC 1341, adverse inference could be drawn against the appellants. The learned Judge therefore, considered the claim of the respondent and has awarded Rs.4,35,595/- instead of Rs.4,79,489.50 ps. against the claim of the respondent by considering 30% rise in the value of the work of Rs.7,67,000/- and Rs.6,84,985/-. In other suits different amounts are allowed for this claim.
9.9. We find that though the appellants did not controvert the evidence of the respondent as regards the statutory rise in the price of the petrol and consequential rise in the price of the other materials, the claim of such rise allowed by the learned Judge could not find support from the terms of the contract between the parties.
9.10. In fact, on this aspect, there is negative covenant contained in Clause 20-A, which reads as under:-
“20-A However, neither party shall be liable to the other for any loss or damage occasioned/ caused by or arising out of acts of God and in particular, unprecedented floods volcanic eruption, earthquake or other convulsion, of nature; and other acts, such as but not restricted to invasion, the act foreign countries, hostilities or war like operations before or after declaration of rebellion military or unsurped power which prevent performance of the contract and which could not have been forseen or avoided by a prudent person.”
Thus, in view of the above Clause in the contract, the respondent in fact was not entitled to the above claim in the suits. The above Clause specifically dis-entitles any of the parties to the contract to make claim for compensation or damage or any kind of claim on account of events stated in the said clause, including the event of war.
10. When the respondent entered into the contract, it was conscious of said clause for any kind of future eventualities and still it accepted the terms of the contract without there being provision for claim for rise for the bill amount on account of the statutory rise in the petroleum prices or any such similar kind of eventuality in future. The parties are bound by the terms of the contract and if the claim of any of the parties does not fall within the terms and conditions of the contract, such party is not entitled to have his claim allowed in the Court simply because the other party has not adduced evidence by examining witness. The party who is making such claim has to prove that he is entitled to such claim under the terms of the contract. We find that the learned Judge has committed an error in allowing the claim of the respondent for rise in the bill amount on account of Gulf war in absence any term or condition in the contract. We, therefore, disallow this claim of the respondent in all the suits.
11. Next is the claim of the respondent as regards interest for the period prior to the suit as well as for subsequent period. The learned Judge has awarded interest at the rate of 12% per annum for the period prior to the suit as also subsequent to the suit. So far as the period after filing of the suit is concerned, the learned Judge has awarded interest also on the amount of interest worked out on the principal sum prior to the suit.
12. We find that there is no contract between the parties for awarding interest. However, the learned Judge has adopted the reasons that the transactions between the parties were commercial transactions and the respondent claimed interest at the rate of 18% per annum, but interest of justice would be met if 12% per annum interest was granted.
13. In this regard, this Court while considering the issue of interest in First Appeal No.709 of 1989 with First Appeal No.944 of 1989 decided con 7.9.2011 has awarded interest at the rate of 9% per annum being a prevailing bank rate on consideration of the totality of the circumstances. In the said case also, it was a case of awarding of public contract and considering the provisions of the Interest Act as also the other judgments on the issue of grant of interest, this Court in the said decision, awarded interest at the rate of 9% per annum. Following the said decision, we are of the view that the claimant shall be entitled to interest at the rate of 9% per annum instead of 12% per annum. However, for the period subsequent to the filing of the suit till the same is realized is concerned, such interest shall be only on principal amount.
14. In light of the above, the respondent in each of the appeal shall now be entitled to the following amounts:-
In First Appeal No.1741 of 2008:
Rs. 33,703.86 Towards claim No.1(since the same is not disturbed by us) On the aforesaid amount, the respondent shall be entitled to interest at the rate of 9% per annum from 15.7.1992 (date on which the last payment was made to the respondent as mentioned in demand notice) till filing of the suit, i.e. 3.11.1993, which comes to Rs.3920.00.
Thus, the respondent shall be entitled to total sum of Rs.37,623.86 ps. to be recovered from the appellants. However, the respondent shall be entitled to interest at the rate of 9% per annum from the date of the suit till its realization on the amount of Rs.33,703.86 ps.
In First Appeal No.1742 of 2008:
Rs. 33,762.00 Towards claim No.1(since the same is not disturbed by us) On the aforesaid amount, the respondent shall be entitled to interest at the rate of 9% per annum from 15.7.1992 (date on which the last payment was made to the respondent as mentioned in demand notice) till filing of the suit, i.e. 3.11.1993, which comes to Rs.3938.00.
Thus, the respondent shall be entitled to total sum of Rs.37,700.00 to be recovered from the appellants. However, the respondent shall be entitled to interest at the rate of 9% per annum from the date of the suit till its realization on the amount of Rs.33,762.00.
In First Appeal No.1743 of 2008:
Rs. 2,08,313.35 Towards claim No.1(since the same is not disturbed by us) On the aforesaid amount, the respondent shall be entitled to interest at the rate of 9% per annum from 15.7.1992 (date on which the last payment was made to the respondent as mentioned in demand notice) till filing of the suit, i.e. 3.11.1993, which comes to Rs.24,295.00.
Thus, the respondent shall be entitled to total sum of Rs.2,32,608.35 ps., to be recovered from the appellants. However, the respondent shall be entitled to interest at the rate of 9% per annum from the date of the suit till its realization on the amount of Rs.2,08,313.35 ps.
In First Appeal No.1744 of 2008:
Rs. 49,899.00 Towards claim No.1(since the same is not disturbed by us) On the aforesaid amount, the respondent shall be entitled to interest at the rate of 9% per annum from 15.7.1992 (date on which the last payment was made to the respondent as mentioned in demand notice) till filing of the suit, i.e. 3.11.1993, which comes to Rs.5820.00.
Thus, the respondent shall be entitled to total sum of Rs.55,719.00, to be recovered from the appellants. However, the respondent shall be entitled to interest at the rate of 9% per annum from the date of the suit till its realization on the amount of Rs. Rs.49,899.00.
15. In the result, the appeals are partly allowed to the above extent.
15.1. In First Appeal No.1741 of 2008, the respondent is entitled to a total sum of Rs.37,623.86 ps. The respondent shall be entitled to 9% interest per annum on the principal amount of Rs.33,703.36 ps. from the date of the suit till its realization.
15.2. In First Appeal No.1742 of 2008, the respondent is entitled to a total sum of Rs.37,700.00. The respondent shall be entitled to 9% interest per annum on the principal amount of Rs.33,762.00 from the date of the suit till its realization.
15.3. In First Appeal No.1743 of 2008, the respondent is entitled to a total sum of Rs.2,32,608.35 ps. The respondent shall be entitled to 9% interest per annum on the principal amount of Rs.2,08,313.35 ps. from the date of the suit till its realization.
15.4. In First Appeal No.1744 of 2008, the respondent is entitled to a total sum of Rs.55,719.00. The respondent shall be entitled to 9% interest per annum on the principal amount of Rs.49,899.00 from the date of the suit till its realization.
15.5. The judgment and decree in all the suits shall stand modified accordingly.
16. In view of the judgment passed in the main First Appeal, Civil Application would not survive and the same shall stand disposed of accordingly.
Sd/-
(JAYANT PATEL, J.) omkar Sd/-
(C.L. SONI, J.)