A .M.Shaffique, J The respondents in W.P.(C). No.13809 of 2013 are the appellants. The appellants challenge the judgment dated 9.4.2014, by which judgment the learned Single Judge directed the appellants to pay the balance amount due to the petitioner in respect of the contract work executed by him pursuant to Ext.P1, along with interest at the rate of 10% from the date on which payment has become due. However, it was made clear that petitioner/respondent herein shall be bound to effect routine maintenance up to the year 2012. 2. The facts involved in the case disclose that the writ petition was filed claiming balance amount due in respect of the contract which was completed by the writ petitioner in terms of Et.P1 agreement. It was inter alia contended that the work was completed within the extended period of time on 31.3.2010. The allegation is that the entire amount due to the petitioner is not paid. It is inter alia contended by the appellants that the work related to construction of road and while doing so a third party had filed a suit as O.S. No.141 of 2006 against the Government as well as the contractor seeking for a direction to construct compound wall in his property on the allegation that the defendants in the case has trespassed into his property and has caused loss, and the lateral support to his property has been substantially effected. The suit was decreed as per judgment dated 17.12.2008. There was a direction to the defendants, which includes the contractor to construct a protection wall on the western side of plaint B schedule property for the safety of plaint A schedule property. It is submitted that since such a direction has been issued and the contractor is responsible for the court passing such a decree, the appellants are not liable to pay the entire amount. Reference was also made to Clause 12(1) of the General Conditions of Contract dated 12.7.2004, which inter alia provides that the contractor is responsible for all risk, loss or damage to the property consequent to the performance of the contract.
3. The learned Single Judge after considering the respective contentions of the parties formed an opinion that pendency of the Execution Petition in O.S.141 of 2006 against the Government is not a valid reason for withholding the payment. Since the execution of work has been admitted and payment is withheld only on account of the pendency of the execution petition, the appellants are liable to pay the amount covered by the final bill.
4. Having regard to the aforesaid findings, while impugning the judgment, learned Government Pleader submits that as per the terms of the contract, the appellant is entitled to withhold any loss that is caused by the appellants on account of negligence of the contractor or breach of contract on the part of the contractor. Therefore, the learned Single Judge has committed serious error in directing payment of the amount. That apart, learned Single Judge has failed to notice the judgment by which the defendants were jointly and severally directed to construct a compound wall and the expenses have to be incurred by the contractor, especially when he is a party to the said suit.
5. Heard learned Government Pleader and the learned counsel appearing for the respondent.
6. Though specific reference is made to Clause 12(1) of the General Conditions of Contract, the facts involved in the case would disclose that a third party claimed that a compound wall is to be constructed on account of loss of lateral support due to the construction of the road. A perusal of the judgment in the said case, which is produced as Ext.R4(a) shows that there is no specific finding that the contractor himself is responsible for the said loss. A decree has been passed directing the defendants to construct a protection wall on the western side of the plaint B schedule property. Whether the respondent herein is responsible for the same is a disputed fact. The writ petitioner does not admit the fact that he is responsible for the loss of lateral support to the third party's property nor does he admit the liability to pay any compensation in that regard. True that, he is bound by the decree passed. But that does not mean that there is an adjudication of dispute between the appellants and the respondent herein. Whether respondent is liable to compensate the appellant in this regard or not for construction of the compound wall is to be adjudicated in appropriate proceedings in terms of the contract between the parties or under general law by initiating appropriate proceedings in a civil court. It is not open for the appellants to contend that they will retain the amount payable to the contractor for the work which had already completed.
7. Learned counsel for the respondent submits that entire payment has already been effected in compliance with the judgment.
8. It is further pointed out by learned Government Pleader that learned Single Judge has committed serious error of law in forming an opinion that the contractor is liable for the maintenance of the road only up to the year 2012.
9. It is submitted by learned counsel for the respondent that as per the terms of the contract, the contractor/respondent herein is liable to maintain the road only up to 30.3.2015. We record this submission made by the learned counsel.
10. It is contended by learned Government Pleader that direction to pay 10% interest on the balance amount was without any basis. It is pointed out that non payment was on account of a genuine dispute between the parties. Having regard to the fact that there existed a dispute between the parties especially on account of the pendency of the decree passed in the civil suit, and pending Execution Petition, we do not think that the learned single Judge was justified in directing payment of interest at the rate of 10% and hence we delete that portion also.
In the above circumstances, the writ appeal is disposed of with the following modifications :
i) It is made clear that liability of the respondent to maintain the road is up to 30.3.2015.
ii) The liability to pay interest at 10% on the balance amount payable is deleted.
iii) The appellants right to recover the amount if any spent for construction of compound wall from the respondent is reserved, which will be subject to the terms of the contract between the parties, or by initiating appropriate proceedings before a civil court.
Sd/-
ASHOK BHUSHAN, ACTING CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE, JUDGE.
sou.
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