IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE: NELLORE
Present: JUNAID AHMED MOULANA
Principal District Judge, Nellore
Wednesday, the 20th day of June, 2018
APPEAL SUIT No.103/2016
M/s Srihari Naidu Lorry Transport, Represented by its Managing Director
K.Srihari Naidu, A.K. Nagar, Nellore City. .. Appellant
Vs.
1. The State of Andhra Pradesh Represented by District Collector SPSR Nellore District, Nellore.
2. The Managing director, A.P. State Seeds Development Corporation Limited HACA Bhavan, Hyderabad.
3. The Manager (Marketing)., A.P. State Seeds Development Corporation Limited HACA Bhavan, Hyderabad.
4. J.Seshagiri Rao, Manager, Engineering Section, A.P. State Seeds Development Corporation Limited, HACA Bhavan, Hyderabad.
5. N.Bhaskar, Finance Manager, A.P. State Seeds Development Corporation Limited, HACA Bhavan, Hyderabad.
6. District Manager (Marketing) A.P. State Seeds Development Corporation
Limited, Dargamitta, Nellore. .. Respondents
On appeal against the decree and judgment dated 12.4.2016, made by
Principal Senior Civil Judge, Nellore, in
O.S.No.207/2013
M/s Srihari Naidu Lorry Transport, Represented by its Managing Director
K.Srihari Naidu, A.K. Nagar, Nellore City. .. Plaintiff
Vs.
1. The State of Andhra Pradesh Represented by District Collector SPSR Nellore District, Nellore.
2. The Managing director, A.P. State Seeds Development Corporation Limited HACA Bhavan, Hyderabad.
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3. The Manager (Marketing)., A.P. State Seeds Development Corporation Limited HACA Bhavan, Hyderabad.
4. J.Seshagiri Rao, Manager, Engineering Section, A.P. State Seeds Development Corporation Limited, HACA Bhavan, Hyderabad.
5. N.Bhaskar, Finance Manager, A.P. State Seeds Development Corporation Limited, HACA Bhavan, Hyderabad.
6. District Manager (Marketing) A.P. State Seeds Development Corporation
Limited, Dargamitta, Nellore. .. Defendants
This appeal coming on 23.4.2018 for final hearing before me, in the presence of Sri N.S.Natarajan – advocate for appellant, and of Sri
Arigela Nagendra Sai – advocate for respondents 2 to 6, and 1st respondent having remained ex parte, and having stood over for consideration till this day, this Court delivered the following—
J U D G M E N T
This appeal is filed by the appellant – the unsuccessful plaintiff in O.S.No.207/2013 on the file of Principal Senior Civil Judge,
Nellore, assailing the decree and judgment made therein on 12.4.2016, dismissing the suit filed for recovery of security deposit of Rs.1,00,000/- under agreement dated 31.3.2007, and amount of Rs.1,00,000/- deposited for transport tenders.
(i) The appellant herein is the plaintiff, and respondents 1 to 6 are defendants 1 to 6 before court below, and they will be hereinafter referred as per their positions in the suit, for the sake of convenience.
2. The facts and circumstances that led to filing of appeal are—
(i) The plaintiff filed suit before court below, contending that he is lorry transport contractor, and vide agreement dated 31.3.2007, was awarded contract for delivery of seeds, packing material and allied -: 3 :- products for the period from 1.4.2007 to 31.3.2008, by defendants 2 to 6, and at the time of agreement they collected Rs.1,00,000/- as security deposit, for due performance of the contract, and as per article-4(2) of the agreement, the corporation will have rights besides other legal remedies to forfeit or adjust in full or in part, the amount of security deposit either for the unworkman like performance of the services by the contractor or for any damages, losses, costs or expenses, that the corporation may suffer or incur in this behalf due to negligence or otherwise of the contractor, for violation of any of the terms and conditions of the agreement, and in article-4(3) the security deposit or such part thereof as has not been forfeited, or adjusted as aforesaid, will be refundable to the contractor, on satisfactory completion of work under the agreement and production of no-due certificates, from the concerned
District Manager (Seeds).
The plaintiff successfully complied with the terms and conditions of the contract, and was also awarded contract for the further period from 15.5.2008, 14.5.2009, 10.5.2010, and 7.6.2011, and there were no complaints against plaintiff during these contract periods, and that the amount of Rs.1,00,000/- deposited as security initially in 2007, was carried forward as security deposit till 2012, and the contract period came to an end on 6.6.2012, and requested defendants 2 to 6 and they did not refund his amount, and further, in addition to his above said amount, deposited two demand drafts, each for Rs.50,000/-, in favour of A.P.
State Seeds Development Corporation Limited, Hyderabad, for transport tenders, for the period 2012-2013, and his tender was not accepted, and it was awarded to third-party, and the said amount is also liable to be refunded, with interest at 18% per annum, thus filed the suit.
(ii) The 1st defendant remained ex parte, and defendants 2 to 6 resisted the suit of plaintiff, by filing written statement of 6th defendant, -: 4 :- adopted by defendants 2 to 6, wherein refuted all the material allegations made in the plaint, and inter alia contended, plaintiff has not complied his part of duty, as provided in clause 15(b) in deducting and remitting E.P.F.
in respect of his employees, and initially plaintiff deposited Rs.1,00,000/- as security, and subsequently entered into contract with the corporation for the years 2008-2009 and during that period he did not deposit security amount, and on his request, the security deposit made earlier, was adjusted for the year 2008-2009 and for further years also upto 2012.
And as per the agreement, the security deposit is refundable on production of no-due certificate issued by concerned by District Manager (Seeds), and statutory amount was due from the plaintiff, by way of
E.P.F., and plaintiff could not get no-due certificate, and plaintiff admitted in writing that he engaged three employees on wages at Rs.4,000/- per month, in 2011-2012 vide his letter dated 22.5.2012, and carried on contract work continuously till 2011-2012, and section 2 of E.P.F. Act, 1952, applies to plaintiff, and accordingly, Regional E.P.F. Commissioner computed E.P.F. dues of Rs.9.10 Lakhs for the period from April 2008 to
October 2011, for various such parties, under common order dated 5.7.2012, and as per the said order, plaintiff was liable to pay
Rs.1,48,005/- towards E.P.F. contribution for his employees, and refunded of Rs.51,995/-, into the account of plaintiff, in S.B.I.,
Fathekhanpet branch, Nellore, and suppressing said facts, to gain wrongfully, filed the suit, and defendants 2 to 6 are not at all liable to pay any amount, including interest, and prayed for dismissal of suit.
(iii) Basing on the above pleadings, following issues were settled for trial—
(1) Whether the plaintiff is entitled for recovery of entire suit
amount with interest at the rate of 18% p.a. as prayed for?
-: 5 :- (2) To what relief plaintiff is entitled?
(iv) To substantiate his claim, plaintiff examined himself as PW-1 and filed Exhibits A-1 to A-6, and defendants 2 to 6 did not choose to adduce evidence.
(v) The plaintiff and defendants 2 to 6 did not advance arguments, and court below, treated their arguments as heard, and on considering the material available on record, dismissed the suit with costs.
3. The plaintiff, feeling aggrieved by the dismissal of his suit, has come up with this appeal assailing the impugned decree and judgment of court below, on the following and among other grounds— (1) The decree and judgment of court below is contrary to law, weight of evidence and probabilities of the case.
(2) The observation of court below, issue No.1 are an omnibus issue is erroneous, and no other issue would arise based on the pleas of defendants.
(3) The issues framed by court below in para-8 of its judgment, do not arise at all for consideration, and are redundant, and it committed a fundamental mistake in framing these issues, and not calling upon the plaintiff and defendants to adduce evidence.
(4) The court below committed mistake in not referring to exhibits marked, and referring in extenso the unmarked documents, which have no relevance to the case.
(5) The court below ignored absence of pleas from defendants, and supplied pleas for defendants, much less indicated in the written statement.
(6) The court below should have noticed, there is no dispute with regard to agreement, and it was admitted, and -: 6 :- the only defence raised by defendants is concerning applicability of Employees Provident Fund Act.
(7) The court below committed earlier, by observing that arbitration clause has to be applied to the suit, as it was a defensive mechanism not pleaded by defendants, and they waived it.
And for these and among other grounds, prayed to set aside the decree and judgment of court below, and to decree the suit as prayed for.
4. Heard both sides.
(i) The learned counsel for plaintiff argued, suit is filed for recovery of security deposit, and amount deposited for transport tenders, made with defendants, and the amount of security deposit, is refundable, and the amount deposited to secure a contract that was allotted to a third party, and the said amount is also refundable, and the defendants withheld the said amounts on the premise, the plaintiff has not paid
Employees Provident Fund contribution to its employees, and in fact A.P.
Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as ‘the Act’) has no application to plaintiff, and is applicable only to an establishment where 20 or more employees were engaged, and the defendants 2 to 6 have unlawfully withheld the amounts, therefore, are liable to pay the same with interest.
(ii) Per contra, the learned counsel for defendants 2 to 6 argued, originally the contract agreement was entered between the plaintiff and 2nd defendant on 31.3.2007, and the suit is filed three years after the completion of contract, and it is barred by limitation, and further supplemented, in the agreement dated 31.3.2007, arbitration clause is provided to resolve the disputes, and the suit is not maintainable before court below, and prayed for dismissal of appeal.
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5. On hearing both the parties, and upon perusing the material available on record, the point that arises for consideration is— “Whether the decree and judgment dated 12.4.2016 in
O.S.No.207/2013 on the file of Principal Senior Civil Judge,
Nellore, are sustainable in law?”
6. POINT: - In this appeal, there is no controversy that the 2nd defendant entered into an agreement on 31.3.2007 with the plaintiff, for transportation of all kinds of seeds, packing material and allied products, for a period of one year, ending by 31.3.2008, and has collected Rs.1,00,000/- as security deposit, and subsequently, said contract has been renewed in favour of plaintiff, for the year 2008-2009, 2009-2010, 2010-2011, and 2011-2012.
(i) And as per the defendants 2 to 6, the security deposit of
Rs.1,00,000/- made under agreement dated 31.3.2007, has been adjusted as security deposit for the agreements entered for the years 2008-2009, 2009-2010, 2010-2011 and 2011-2012, and the same was adjusted towards E.P.F. contribution due by plaintiff and for that reason, it was not refunded to him.
(ii) And the plaintiff has come up with the suit before court below, seeking refund of said amount, and the same was resisted by defendants 2 to 6 on the ground, as stated above.
7. And considering the rival pleas of the parties, issues one and two were settled by the court below, and the parties went into trial, and the plaintiff examined himself as PW-1 and filed documents in Exhibits A- 1 to A-6, and defendants 2 to 6 failed to adduce evidence, and considering the material available on record, the court below dismissed the suit, holding, in the agreement dated 31.3.2007 entered between plaintiff and 2nd defendant, three months’ time from the date of -: 8 :- completion/termination of contract, plaintiff is given right to prefer appeal, and whereas the suit is filed 11 months after completion of contract, thus barred by limitation, and further held, said agreement between plaintiff and 2nd defendant dated 31.3.2007 is subject to the provisions of Arbitration and Conciliation Act (hereinafter referred as ‘Arbitration Act’), and plaintiff failed to explain maintainability of suit.
8. And as discussed supra, in the suit only issues 1 and 2 were framed, with regard to the entitlement of suit claim by plaintiff from the defendants, and admittedly, the court below has not framed any issue touching the maintainability of suit and its limitation, and without such issues being framed, the following points were framed for determination, in its impugned judgment— (1) Whether the security deposit carries interest?
(2) Whether the plaintiff has preferred any claims or appeals if any in writing within three months from the date of termination or completion of the agreement failing which, such claims or appeals shall be deemed to have been waived and absolutely barred and the Corporation shall be discharged and released of all liabilities under this agreement in respect of such claim?
(3) Whether the plaintiff has three employees under him and he is liable to pay EPF as per EPF Act?
(4) Whether the provisions of EPF Act is applicable to the case of the plaintiff?
(5) Whether the defendants are competent to withhold the EPF amount from the security deposit?
(6) Whether the defendants discharged and paid the balance amount to the plaintiff by depositing into his S.B. Account bearing No.30305338474 of State Bank of India, Fathekhanpet Branch, Nellore to a tune of Rs.1,48,005/-?
(7) Whether the suit is barred by limitation?
and dealt with the above points, and however from the findings in the impugned judgment, the court below has confined itself, with regard to limitation and maintainability of suit, and is able to answer points 2 and 7 only framed, while rendering the judgment, and failed to answer points 1 -: 9 :- and 3 to 6, and consequently held, issue No.1 against the plaintiff and in favour of defendants, and dismissed the suit with costs, and the same is in challenge in this appeal.
9. And admittedly, defendants 2 to 6 have not questioned the claim of plaintiff as barred by limitation, and the court below, though the agreements between plaintiff and 2nd defendant, were not exhibited in evidence, relied upon a clause in para-7 of the copy of agreement dated 31.3.2007 filed, that plaintiff has to file appeal within three months from the date of completion or termination of contract, and despite the said timeframe, filed the suit 11 months after completion of the contract, held the suit claim is barred by limitation.
(i) No doubt, under section 3 of Limitation Act, the court is invested with power subject to the provisions contained in sections 4 to 24, every suit instituted, appeal preferred, and application made after the prescribed period, shall be dismissed, though limitation has not been set up as a defence.
(ii) And on a reading of the findings of court below, in its impugned judgment, it came to conclusion, basing on the condition stipulated in page-7 of agreement dated 31.3.2007, that plaintiff has to file appeal within three months from the date of completion/termination of the contract, and took this timeframe fixed in the agreement, as period of limitation for the suit claim, and this court is unable to comprehend with this approach of court below that the suit claim of plaintiff is governed by the limitation provided in the unmarked agreement dated 31.3.2007.
(iii) And on a plain reading of the condition provided in the agreement dated 31.3.2007, no doubt, a provision is made giving right to plaintiff to file appeal or claim in writing, within three months from the -: 10 :- date of termination or completion of contract, and his failure amounts to waiver of his right, and 2nd defendant shall be discharged of all its liabilities, under the said contract.
(iv) And in the instant case, plaintiff is not seeking enforcement of agreement dated 31.3.2007 entered with 2nd defendant, and is seeking refund of security deposit, which he made with 2nd defendant, when he entered into contract, with them under the said agreement dated 31.3.2007.
(v) And it is a settled principle of law, period of limitation to file certain suits, appeals and applications, before court of law, has been provided under the provisions of Limitation Act, and the schedule appended thereto, and the parties to contract have no right to stipulate period of limitation, to enforce the claims arising out of such contracts, in courts of law, and such a course is allowed, virtually it amounts to scuttling the very object of enacting the law of limitation.
(vi) And even otherwise, going by the condition in agreement
dated 31.3.2007, it does not indicate that plaintiff has to institute suit
against 2nd defendant, within three months’ time stipulated therein, and the only condition made therein is, plaintiff, being the contractor of 2nd defendant, is allowed to make an application/appeal before 2nd defendant, within three months after completion/termination of contract, and this stipulation of three months time therein, is no way related to filing of suit in court of law, and the court below went wrong by applying the said period of three months, fixed in the agreement, as period of limitation for filing the suit.
10. And in this case, it is not in controversy, that plaintiff deposited Rs.1,00,000/- as security with 2nd defendant, while entering into contract on 31.3.2007, and said amount was refundable to plaintiff -: 11 :- on completion of contract, and this amount of Rs.1,00,000/- collected by 2nd defendant under agreement dated 31.3.2007, no doubt, is a deposit made by plaintiff, for due performance of the contract.
(i) The limitation for filing suit for recovery of money deposited under agreement, is provided under article 22 of limitation act, in which it was provided, that a suit for money deposited under an agreement that it shall be payable on demand, has to be instituted within three years, from the date of demand.
(ii) And before instituting the suit, plaintiff has issued Exhibit A-3 notice dated 25.10.2012 under section 80 C.P.C. to defendants, and the same was served upon the defendants, vide Exhibits A-4 to A-6, and thereafter, instituted the suit on 18.2.2013 before court below.
(iii) And as per article 22 of limitation act, for recovery of amount deposited under agreement, suit has to be instituted within three years from the date of demand, and from Exhibit A-3 it is made out, plaintiff made a demand for refund of amount deposited under agreement dated 31.3.2007, on 25.10.2012, and thereafter instituted on 18.2.2013, well within three years, and it is not barred by limitation.
11. And during the course of hearing, the learned counsel for defendant 2 to 6, vehemently argued, without there being a plea in the written statement, that in the agreements between plaintiff and 2nd defendant, an arbitration clause is provided, and all the disputes arising out of the contract therein, ought to be resolved by way of arbitration, and the suit is not maintainable before a civil court.
(i) The defendants 2 to 6 did not make any endeavour to raise any such plea before court below, and file the said agreements, and exhibit the same in evidence, and to show there is an arbitration clause in -: 12 :- agreement dated 31.3.2007, and the suit claim has to be resolved through arbitration, and without the said agreement being exhibited in evidence, and there being any plea in that regard, court below ventured upon and dealt, and held agreement dated 31.3.2007 is subject to the provisions of Arbitration Act, and plaintiff failed to explain maintainability of the suit.
(ii) Though the said agreement dated 31.3.2007 is not marked in evidence, since the court below has dealt with it, and held that it is subject to the provisions of Arbitration Act, and in view of this matter, it is desirable to see whether the said agreement is subject to the provisions of Arbitration Act, and does it have any effect on the maintainability of suit.
(iii) And no doubt, in agreement dated 31.3.2007, it was stipulated that the contract thereunder is subject to the provisions of
Arbitration Act, and except that no specific clause in positive terms was incorporated therein, to show, the disputes arising out of said contract are to be resolved by way of arbitration, and be that as it may, even assuming the disputes arising out of agreement dated 31.3.2007, are resolvable by way of arbitration, in such case, it is required to be answered, whether the suit of plaintiff is maintainable before court below.
(iv) When there is an agreement between the parties incorporating arbitration clause, to resolve the disputes arising among them through arbitration, and having such arbitration clause, if one of the parties to the agreement, approaches the court of law for resolution of that dispute, to deal with such situation, a provision is made under
Section 8 of Arbitration Act, and for better appreciation of the matter, it is extracted hereunder— “8. Power to refer parties to arbitration where there is an arbitration agreement— -: 13 :- (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”
And on a plain reading of section 8 of the Arbitration Act, it is clear, when a dispute brought before the court of law is governed by arbitration agreement, in such a case, any one of the parties shall apply to the court,
before filing written statement, to refer the dispute in question to
arbitration.
(v) And in this case, admittedly, as discussed hereinabove, defendants 2 to 6, have not contended that the dispute involved in suit is subject to arbitration, and also did not make any endeavour as provided under section 8(1) of Arbitration Act, by filing a petition to refer the dispute to arbitration.
(vi) And the defendants 2 to 6, having right to seek the dispute involved in the suit, referred to arbitration under section 8(1) of the Act, were complacent before court below, and this silence on their part, amounts to waiving in their right to seek referral of dispute / suit claim to arbitration, and once it is held, defendants 2 to 6 have waived in their right in invoking the provisions of the Arbitration Act, to refer the claim for arbitration, and necessarily it has to be concluded, the claim made by plaintiff in the suit, is maintainable before court below.
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12. And coming to the security deposit of Rs.1,00,000/- under agreement dated 31.3.2007, made by plaintiff is concerned, it is not at all in controversy, and even according to defendants 2 to 6, the said security deposit of Rs.1,00,000/- made by plaintiff, was subsequently taken/ adjusted towards security deposit for agreements entered into between plaintiff and 2nd defendant for the periods from 2007-2008, 2008-2009, 2009-2010, 2010-2011 & 2011-2012, and the only resistance offered by defendants 2 to 6 is, plaintiff fell due to pay Employees Provident Fund contribution for his three employees, to a tune of Rs.1,48,005/-, and the security deposit of Rs.1,00,000/-, was adjusted towards the same.
(i) And in the discussion made earlier, absolutely no oral or documentary evidence was adduced by defendants 2 to 6 in support of their case, and similarly they failed to cross-examine plaintiff/PW-1 and to refute his evidence given in chief examination.
(ii) And it is well settled, by the Hon’ble Apex Court in “Iswar Bhai
C.Patel v. Harihar Behera and Another”,1 and “Vidyadhar v. Manikrao and
Another”,2where a defendant in the suit does not appear into the witness box and state his case on oath, and does not offer himself for cross-examination by other side, a presumption would arise, that the case set up by him is not correct.
13. In the present case also, defendants 2 to 6, having resisted the claim of plaintiff for refund of security deposit and money deposited towards transport tenders, that the amount deposited by plaintiff, was adjusted to a tune of Rs.1,48,005/- towards his Employees Provident
Fund contribution for his three employees, failed to adduce rebuttal in support of this contention, and even they did not choose to file the so called order, said to have been issued by E.P.F. Commissioner, that the 1 1999(2) LD (S.C.S.N.) 19 2 AIR 1999 SC 1441 -: 15 :- plaintiff is liable to pay Rs.1,48,005/- towards E.P.F. contribution for his employees.
(i) And when there is no evidence from defendants 2 to 6, either oral or documentary, to show that the plaintiff actually has to pay E.P.F.
contribution for his employees, necessarily a presumption would arise, that the case set up by defendants 2 to 6 against the plaintiff is incorrect, and they failed to prove, plaintiff fell due an amount of Rs.1,48,005/- towards E.P.F. contribution for his three employees.
(ii) And added to it, it is the contention of defendants 2 to 6, that the plaintiff has engaged three employees and the provisions of the Act are applicable to them, and he contravened its provisions.
14. No doubt, the Act was made with the object to provide for the institution of provident funds, pension funds, and deposit linked insurance funds, for the employees working in factories and other establishments, and the application of the Act, has been provided under section 1 of the Act, and it reads as hereunder—
1. Short title, extent and application. (1) This Act may be called the Employees‟ Provident Funds and Miscellaneous Provisions Act, 1952. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) Subject to the provisions contained in section 16, it applies - (a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which twenty or more persons are employed and (b) to any other establishment employing twenty or more persons or class of such establishments which the Central
Government may, by notification in the Official Gazette, specify, in this behalf: Provided that the Central Government may, after giving not less than two months‟ notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment employing such number of persons less than twenty as may be specified in the notification. (4) Notwithstanding anything contained in sub-section 3 of this section or-sub-section 1 of section16, -: 16 :- where it appears to the Central Provident Fund Commissioner, whether on an application made to him in this behalf or otherwise, that the employer and the majority of employees in relation to any establishment have agreed that the provisions of this Act should be made applicable to the establishment, he may, by notification in the
Official Gazette, apply the provisions of this Act to that establishment on and from the date of such agreement or from any subsequent date specified in such agreement. (5) An establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below twenty.
And on a reading of sub-section 3 of section 1 of the Act, it is clear, subject to the exemptions provided under section 16 of the Act, the provisions of the Act are applicable, to every establishment, which is a factory, engaged in any industry in which 20 or more persons are employed, or to any other establishment in which 20 or more persons are employed, or class of such establishments, notified by the Central
Government in official gazette.
(i) And in the instant case, plaintiff is not running a factory, and is only a transport contractor, owning a lorry, and even according to the defendants 2 to 6, he has engaged only three employees, and as per sub section 3 of section 1, the provisions of the Act are applicable to establishment which is a factory, engaged in any industry, or any other establishment in which 20 or more persons were employed, and hence the provisions of the Act have no application to plaintiff and the three employees worked under him.
(ii) And when it is held, the provisions of the Act have no application to the case of plaintiff, the necessary conclusion is, the contention of defendants 2 to 6, plaintiff fell due an amount of -: 17 :-
Rs.1,48,005/- towards E.P.F. contribution for his employees, falls flat to the ground.
(iii) And no doubt, as per Article-4(3) of agreement dated 31.3.2007, as pleaded by plaintiff, the amount deposited by him as security, is refundable, on satisfactory completion of work under the agreement, on production of no-due certificate from concerned District
Manager of 6th defendant.
(iv) And in the discussion made above it is held, defendants 2 to 6 failed to prove, plaintiff fell due an amount of Rs.1,48,005/- towards
E.P.F. contribution for his employees, and no doubt, in seeking refund of security deposit of Rs.1,00,000/-, plaintiff/PW-1, has not submitted no- due certificate issued by 6th defendant, and since it is not at all the case of defendants 2 to 6, except contending, that Rs.1,48,005/- was due from plaintiff, that he failed to perform the contract satisfactorily, and from this it can be inferred, plaintiff has performed the contract, that he entered with 2nd defendant, satisfactorily, and since the defendants 2 to 6 failed to prove, plaintiff fell due an amount of Rs.1,48,005/- it shall be inferred, no such amount was due by him to defendants 2 to 6, and is entitled for a no-due certificate from 6th defendant, and however the same was not obtained from 6th defendant.
(v) And as the plaintiff has come up with the suit, seeking refund of security deposit of Rs.1,00,000/- made with 2nd defendant, and it was resisted by defendants 2 to 6, in such a case, expecting plaintiff to obtain and produce no-due certificate from 6th defendant, is highly improbable, and as it is made out, from the record, the plaintiff has not fell due any amount towards E.P.F. contributions for his employees, in such case the defendants 2 to 6 are necessarily liable to refund said amount deposited with 2nd defendant.
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(vi) And as the said amount of Rs.1,00,000/-, though it was deposited under agreement dated 31.3.2007 initially, and however, subsequently it was taken as security for the contracts entered between plaintiff and 2nd defendant for the periods from 2007-2008, 2008-2009, 2009-2010, 2010-2011 & 2011-2012 also, and lastly the contract in favour of plaintiff, was concluded in 2012, and he made demand for refund of said amount, by way of Exhibit A-3 notice dated 25.10.2012, and it was not complied with by defendants 2 to 6, and from that date onwards, plaintiff is entitled for simple interest at 12%, on the security deposit of Rs.1,00,000/-.
15. The plaintiff also has sought for refund of Rs.50,000/- each said to have been deposited towards transport tenders, vide two demand drafts bearing Nos.472578 and 472579, drawn in favour of A.P. State
Seed Development Corporation Limited, for the period 2012-2013, and they said to have been allotted to third-party and it is liable to be refunded to him, with interest at 18% per annum.
(i) And admittedly, going by the case of plaintiff, these amounts of Rs.50,000/- each said to have been deposited under two demand drafts, is not related to agreements above-referred, entered with 2nd defendant, and on a reading of impugned judgment of court below, there is no finding in relation to these amounts claimed by plaintiff in suit.
(ii) And be that as it may, the amounts of Rs.50,000/- each claimed by plaintiff, said to have been deposited under two demand drafts, pertains to subsequent transactions in the effort to secure transport contract for the year 2012-2013, and according to him, he failed to secure the said contract, having deposited amount at the time of submission of tenders, and is claiming refund of said amounts.
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(iii) And in this case, the plaintiff/PW-1, except pleading and stating in evidence, that he deposited Rs.50,000/- each under demand drafts, did not place any material on record, in proof of deposit of said amounts with A.P. State Seeds Development Corporation Limited,
Hyderabad, though it is stated by plaintiff/PW-1 in his case and evidence, said amounts were paid by him by way of demand drafts bearing
No.472578 and 472579, and no evidence is let-in in this regard, by summoning concerned bank personnel, from whom said demand drafts were said to have been obtained in favour of A.P. State Seeds
Development Corporation Limited, Hyderabad, to show, they were obtained in whose favour and were withdrawn by whom, and so also the plaintiff is not clear on which dates said amounts were deposited under demand drafts, and in the absence of evidence showing deposit of
Rs.50,000/- under two demand drafts, it is highly difficult to accept his contention to that effect, and thus failed in this regard, and is not entitled for refund to the extent of said amounts.
16. And in view of the discussion made supra, the decree and judgment dated 12.4.2016 made in O.S.No.207/2013 is liable to be set aside, and the plaintiff is entitled for recovery of Rs.1,00,000/- with interest thereon at 12% per annum from 25.10.2012 till date of suit, and thereafter at 6% per annum till payment or realization, from defendants 2 to 6, and rest of the suit claim deserves to be dismissed, including the suit against 1st defendant, and accordingly the point is answered.
17. In the result, appeal is allowed with proportionate costs, and the decree and judgment dated 12.4.2016 made in O.S.No.207/2013 on the file of Principal Senior Civil Judge, Nellore, is set-aside, and the suit in
O.S.No.207/2013 on the file of Principal Senior Civil Judge, Nellore, is
partly decreed for a sum of Rs.1,00,000/- with interest thereon at 12% per annum from 25.10.2012 till date of suit, and thereafter at 6% per -: 20 :- annum till payment or realization, against defendants 2 to 6, and rest of the suit claim, including the suit against 1st defendant, is dismissed.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in the open court, this the 20th day of June, 2018.
Sd/-JUNAID AHMED MOULANA
Principal District Judge
NELLORE
APPENDIX OF EVIDENCE
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Sd/-JUNAID AHMED MOULANA
Principal District Judge
NELLORE