P. Venugopal Vs. Superintending Engineer and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1186893
CourtChennai Madurai High Court
Decided OnNov-24-2016
Case NumberS.A.No. 1715 of 2001
JudgeThe Honourable Ms. Justice V.M. Velumani
AppellantP. Venugopal
RespondentSuperintending Engineer and Others
Excerpt:
(prayer: second appeal is filed under section 100 of civil procedure code, against the judgment and decree dated 26.10.1999, made in a.s.no.3 of 1999 on the file of the court of the additional district judge-cum-chief judicial magistrate, thanjavur at kumbakonam, reversing the judgment and decree, dated 01.03.1995, made in o.s.no.147 of 1991, on the file of the subordinate court, kumbakonam.) 1. this second appeal has been filed against the judgment and decree dated 26.10.1999, made in a.s.no.3 of 1999 on the file of the court of the additional district judge-cum-chief judicial magistrate, thanjavur at kumbakonam, reversing the judgment and decree, dated 01.03.1995, made in o.s.no.147 of 1991, on the file of the subordinate court, kumbakonam. 2. the appellant is the plaintiff, who succeeded in the trial court, but lost in the first appellate court. the respondents 1 and 2 are the defendants 2 and 3 and the third respondent is the first defendant in the suit in o.s.no.147 of 1991 on the file of the subordinate court, thanjavur. 3. facts of the case: (i) the appellant is a licensed contractor. the first respondent called for tenders for construction of laboratory building for the third respondent. the appellant submitted his tender for rs.14,34,437/-. the same was accepted by the first respondent. terms and conditions were reduced into writing and an agreement was entered into. as per the terms and conditions, from the bills submitted by the appellant, 5% of the bill amount will be deducted and kept as additional security deposit. 2.5% will be returned to the appellant at the time of payment of final bill, after completion of work to the satisfaction of the first respondent. the balance 2.5% will be retained by the first respondent for two years from the completion of work. if any defect is found in the construction, the appellant must rectify the same at his own cost and if the appellant fails to rectify the defect, the first respondent can rectify the same and deduct the cost from the amount retained by them. the appellant completed the construction on 29.09.1996 and duly handed over the same to the respondents 1 and 2. the first respondent paid final bill amount and 2.5% of the amount was retained by him as additional security deposit, as per clause 33-a of the agreement, for rectification of the defect, if any, found in the construction. the first respondent retained a sum of rs.33,610/- in the above account. on 27.05.1988 and 25.08.1988, the first respondent informed the appellant that in the audit, it was found that rs.20,513/- and rs.16,684/- were paid in excess to the appellant and after adjusting rs.33,610/-, he called upon the appellant to pay a sum of rs.3,587/-. the appellant is not liable to pay this amount, as 5% excess materials can be utilised by the appellant. as per clause 33-a of the agreement, the amount can be recovered only if any defect is found in the construction and if the appellant fails to rectify the defect. the appellant sent a notice dated 03.01.1991 as per section 80 c.p.c., demanding the amount. the respondents did not send any reply. hence, he has filed the suit for the relief stated supra. (ii) the second respondent filed written statement and the same has been adopted by the respondents 1 and 3. the respondents submitted that there is some mistake found in the calculation for the amounts payable to the appellant and the same was found out during audit while verifying in m book. therefore, two sums of rupees were adjusted from the additional security deposit of rs.33,610/- and the appellant was called upon to pay the balance sum of rs.3,587/-. the respondents sent number of reminders to the appellant and the appellant did not send any reply and did not pay the amounts. the appellant having come to know that steps are taken by the respondents to recover the amount of rs.3,587/-, filed the suit with false allegations. audit objections were based on verification of m book and the appellant made certain mistakes while calculating the amounts payable to him. the appellant is not entitled to the amounts claimed in the plaint and therefore, prayed for dismissal of the suit. (iii) based on the pleadings, the learned subordinate judge, kumbakonam, framed necessary issues. (iv) before the learned subordinate judge, the appellant examined himself as p.w.1 and marked 7 documents as exs.a.1 to a.7. the respondents examined one m.rengabashyam as d.w.1 and marked 18 documents were marked as exs.b.1 to b.18. (v) the learned subordinate judge, considering the pleadings, both oral and documentary evidence, arguments of the learned counsel for the parties, decreed the suit, holding that the respondents are entitled to recover the amounts as per the audit objection, but recovery is not an adjustment, but it is only a set-off and the respondents must pay the court fee on the amounts claimed by them. (vi) against the said judgment and decree, dated 01.03.1995, the respondents 1 and 2 filed a.s.no.33 of 1999 before the court of additional district judge-cum-chief judicial magistrate, thanjavur at kumbakonam. (vii) the learned additional district judge-cum-chief judicial magistrate, thanjavur at kumbakonam, formulated necessary points for consideration. (viii) the learned additional district judge-cum-chief judicial magistrate, thanjavur at kumbakonam, allowed the appeal holding that when the respondents 1 and 2 by exs.a.3 and a.4 intimated the appellant the two sums of rs.20,513 and rs.16,684/- ought to be paid by him and a sum of rs.33,610/- was adjusted and called upon the appellant to pay the balance sum of rs.3,587, the appellant did not send any reply and did not request for verification of m book and audit objection. the learned additional district judge-cum-chief judicial magistrate, thanjavur at kumbakonam, took note of the fact that the appellant admitted his signature in the m book and the error in the calculation. considering the terms and conditions of the agreement, the learned additional district judge-cum-chief judicial magistrate, thanjavur at kumbakonam, held that the amount received is only adjustment and not set off or counter claim. 4. against the said judgment and decree, dated 01.03.1995, the appellant has preferred the second appeal. 5. at the time of admitting the second appeal, this court framed the following substantial questions of law: 1. whether in view of the claim made by the respondents in their written statement read with the provisions contained under order viii rule 6 and 6-a of the c.p.c., the said claim is only a mere adjustment and not a counter claim and adjustment and either case, are they not bound to value the said claim and pay court fee thereon and consequently, was the court below right in setting aside the decree of the trial court, treating the said claim only as a mere adjustment and also accept the same, especially when they failed even to value it and pay court fee thereon? 2. whether in view of clause 33-a of ex.a.1, agreement, the respondents are not bound to pay the entire 2-1/2% of the value of the work done viz., rs.33,610/- retained by them to the appellant on 29.9.1988, when admittedly the appellant had duly completed the construction according to the specifications prescribed by them and handed over to them on 29.9.1986 and they had not noticed any defect in the said construction within 2 years thereafter (i.e.) till 29.9.1988? 3. whether the failure of the court below to consider the pleadings and the oral and documentary evidence on record, more particularly, the contents of the written statement and ex.a.1 and depositions of p.w.1 and d.w.1 with reference to the position of law, had not made its judgment incorrect and perverse? 6. the learned counsel for the appellant submitted that 2.5% of additional security deposit was retained by the respondents only as a security for rectification of defect, if any, which may occur within two years of completion of work. the respondents have no right to recover the amounts for any other purpose. the amount claimed by the respondents is not admitted amount and therefore, it cannot be said that the respondents have adjusted the same. the respondents must make a counter claim or set off and pay the court fee and prove the same. the learned additional district judge-cum-chief judicial magistrate, thanjavur at kumbakonam, failed to consider this aspect. the respondents have not issued any notice to the appellant with regard to recovery of amounts. they only intimated about audit objections and no opportunity was given to the appellant to explain his stand. as per the terms and conditions, upto 5% excess materials can be used by the appellant. the respondents are not entitled to claim value of the said materials. in the present case, the appellant has not used excess materials more than 5%. the mistake alleged to have been committed in m book is not by the appellant, but it is by the officials of the public works department and the appellant cannot be penalised for the mistake committed by the respondents. the learned additional district judge-cum-chief judicial magistrate, thanjavur at kumbakonam, failed to consider the contention of the appellant and the terms and conditions in the agreement in proper perspective and erroneously allowed the appeal. 7. per contra, the learned counsel for the respondents 1 and 2 submitted that by exs.a.3 and a.4, dated 27.08.1988 and 25.08.1988, the second respondent intimated in the year 1988 about the recovery based on the audit report. the appellant did not send any reply and did not seek verification of m book. only after three years, the appellant sent ex.a.5 notice, dated 03.01.1991 and filed the suit. as per clause 27 of ex.a.1 agreement, after final audit only, security deposit of the contractor will be refunded after adjusting the amount payable by the contractor to the department. the appellant has admitted the measurement in m book, which was marked as ex.b.6 and admitted the errors pointed out by the respondents. the appellant did not return the remaining materials to the respondents and therefore, he is not entitled to claim the benefit of 5% excess utilisation of materials. as per clause 71 of the madras detailed standard specifications, the respondents are entitled to adjust any amount due to the department from the contractor for the payable amounts in the same contract or from any other contract. the amounts recovered was only adjustment and it is not counter claim or set off. therefore, the respondents are not liable to pay any court fee. the learned subordinate judge, kumbakonam, having held that the respondents are entitled to recover the amount, erred in decreeing the suit on the ground that the respondents failed to pay the court fee on the amount recovered. as per clauses 15, 27, 29, 33 and 33-a of the agreement entered into between the appellant and the respondents read with clause 71 of the madras detailed standard specifications, the recovery made by the respondents is only an adjustment and it is valid and legal. the learned additional district judge-chief judicial magistrate, thanjavur at kumbakonam, has considered all the material facts and law in proper perspective and allowed the appeal. there is no question of law arises in the second appeal and therefore, he prayed for dismissal of the second appeal. 8. heard mr.c.selvaraj, learned special government pleader appearing for the third respondent. 9. i have carefully perused all the materials available on record, the judgment and decree of the courts below and considered the arguments advanced by the learned counsel appearing for the parties. 10. the appellant is a licensed contractor. in any contract entered with the public works department, the madras detailed standard specifications forms part of the said contract. the said madras detailed standard specifications need not be attached to the agreement entered into between the contractor and the respondents. in the present case, the respondents have recovered two sums of rs.20,513/- and rs.13,194/- from the additional security deposit of 2.5% of the appellant and called upon him to pay the balance sum of rs.3,587/-. the contention of the appellant is that these two sums are disputed amounts and no notice was given to the appellant before adjustment. exs.a.3 and a.4 are only intimation and the respondents can recover these amounts only after paying court fee and proving their case. this contention is untenable. the second respondent issued exs.a.3 and a.4 intimating the recovery of amounts and called upon the appellant to pay the balance amount. the appellant has not sent any reply objecting to the same and did not call upon the respondents to produce the audit report or m book for verification. only after three years, he has issued ex.a.5 notice dated 03.01.1991, calling upon the respondents to pay rs.33,610/-. 11. further, in the cross-examination, the appellant as p.w.1 admitted the measurements in m book and admitted that he signed m book. he also admitted that there are certain errors in the calculation of the amounts payable to him. he has stated that he returned the cut piece of steel to the godown of the second respondent, but admitted that he has not obtained any acknowledgement for the same. this contention cannot be accepted, for the simple reason that whenever any material was issued to the appellant, he shall acknowledge and similarly, whenever he returns the materials, he shall obtain acknowledgement for the same. the appellant is the licensed contractor and has obtained contract for rs.14,34,437/- from the first respondent. it is not the case of the appellant that this is his first contract with the public works department. therefore, his evidence in the cross-examination that he is not aware of the madras detailed standard specifications, cannot be accepted. the respondents have proved that as per clause 27 of the agreement, the amounts if any, can be refunded to the contractor from the security deposit only after final audit. in the present case, two sums of rs.20,513/- and rs.13,194/- are recovered based on the audit report. further, as per clause 71 of the madras detailed standard specifications, the respondents are entitled to recover the amounts from the existing contract or any other contracts of the same contractor. a reading of clause 71 clearly shows that the amounts recovered from the additional security, is only an adjustment and not set off. 12. it is relevant to extract clause 27 of the agreement and clause 71 of the madras detailed standard specifications. agreement: 27. upon the terms and conditions of this agreement being fulfilled and performed to the satisfaction of the estate officer and after the vouchers relating to the work have been finally audited and the result has been communicated to the registrar, the security deposited by the contractor as herein before received or such portion thereof as he may be entitled to under the said conditions shall be returned to the contractor. clause 71 of the madras detailed standard specifications: ''71. recovery of money from contractor in certain cases.- in every case in which provision is made for recovery of money from the contractor, government shall be entitled to retain or deduct the amount thereof from any moneys that may be due or may become due to the contractor under these presents and/or under any other contract or contracts or any other account whatsoever. 13. the learned subordinate judge, kumbakonam, erroneously decreed the suit on the ground that the respondents have not paid court fee. the learned additional district judge-cum-chief judicial magistrate, thanjavur at kumbakonam considered these aspects with regard to various clauses in the agreement and the madras detailed standard specifications and rightly held that recovery is only an adjustment and it is not a set off or a counter claim. therefore, the substantial questions of law framed are answered against the appellant. 14. in the result, the second appeal is dismissed. the judgment and decree, dated 26.10.1999, made in a.s.no.3 of 1999 on the file of the court of the additional district judge-cum-chief judicial magistrate, thanjavur at kumbakonam, is confirmed and the judgment and decree, dated 01.03.1995, made in o.s.no.147 of 1991, on the file of the subordinate court, kumbakonam, is set aside. no costs.
Judgment:

(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 26.10.1999, made in A.S.No.3 of 1999 on the file of the Court of the Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam, reversing the judgment and decree, dated 01.03.1995, made in O.S.No.147 of 1991, on the file of the Subordinate Court, Kumbakonam.)

1. This Second Appeal has been filed against the judgment and decree dated 26.10.1999, made in A.S.No.3 of 1999 on the file of the Court of the Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam, reversing the judgment and decree, dated 01.03.1995, made in O.S.No.147 of 1991, on the file of the Subordinate Court, Kumbakonam.

2. The appellant is the plaintiff, who succeeded in the Trial Court, but lost in the first appellate Court. The respondents 1 and 2 are the defendants 2 and 3 and the third respondent is the first defendant in the suit in O.S.No.147 of 1991 on the file of the Subordinate Court, Thanjavur.

3. Facts of the case:

(i) The appellant is a licensed Contractor. The first respondent called for tenders for construction of Laboratory building for the third respondent. The appellant submitted his tender for Rs.14,34,437/-. The same was accepted by the first respondent. Terms and conditions were reduced into writing and an agreement was entered into. As per the terms and conditions, from the bills submitted by the appellant, 5% of the bill amount will be deducted and kept as additional security deposit. 2.5% will be returned to the appellant at the time of payment of final bill, after completion of work to the satisfaction of the first respondent. The balance 2.5% will be retained by the first respondent for two years from the completion of work. If any defect is found in the construction, the appellant must rectify the same at his own cost and if the appellant fails to rectify the defect, the first respondent can rectify the same and deduct the cost from the amount retained by them. The appellant completed the construction on 29.09.1996 and duly handed over the same to the respondents 1 and 2. The first respondent paid final bill amount and 2.5% of the amount was retained by him as additional security deposit, as per Clause 33-A of the Agreement, for rectification of the defect, if any, found in the construction. The first respondent retained a sum of Rs.33,610/- in the above account. On 27.05.1988 and 25.08.1988, the first respondent informed the appellant that in the audit, it was found that Rs.20,513/- and Rs.16,684/- were paid in excess to the appellant and after adjusting Rs.33,610/-, he called upon the appellant to pay a sum of Rs.3,587/-. The appellant is not liable to pay this amount, as 5% excess materials can be utilised by the appellant. As per Clause 33-A of the Agreement, the amount can be recovered only if any defect is found in the construction and if the appellant fails to rectify the defect. The appellant sent a notice dated 03.01.1991 as per Section 80 C.P.C., demanding the amount. The respondents did not send any reply. Hence, he has filed the suit for the relief stated supra.

(ii) The second respondent filed written statement and the same has been adopted by the respondents 1 and 3. The respondents submitted that there is some mistake found in the calculation for the amounts payable to the appellant and the same was found out during audit while verifying in M Book. Therefore, two sums of rupees were adjusted from the additional security deposit of Rs.33,610/- and the appellant was called upon to pay the balance sum of Rs.3,587/-. The respondents sent number of reminders to the appellant and the appellant did not send any reply and did not pay the amounts. The appellant having come to know that steps are taken by the respondents to recover the amount of Rs.3,587/-, filed the suit with false allegations. Audit objections were based on verification of M Book and the appellant made certain mistakes while calculating the amounts payable to him. The appellant is not entitled to the amounts claimed in the plaint and therefore, prayed for dismissal of the suit.

(iii) Based on the pleadings, the learned Subordinate Judge, Kumbakonam, framed necessary issues.

(iv) Before the learned Subordinate Judge, the appellant examined himself as P.W.1 and marked 7 documents as Exs.A.1 to A.7. The respondents examined one M.Rengabashyam as D.W.1 and marked 18 documents were marked as Exs.B.1 to B.18.

(v) The learned Subordinate Judge, considering the pleadings, both oral and documentary evidence, arguments of the learned counsel for the parties, decreed the suit, holding that the respondents are entitled to recover the amounts as per the audit objection, but recovery is not an adjustment, but it is only a set-off and the respondents must pay the Court fee on the amounts claimed by them.

(vi) Against the said judgment and decree, dated 01.03.1995, the respondents 1 and 2 filed A.S.No.33 of 1999 before the Court of Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam.

(vii) The learned Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam, formulated necessary points for consideration.

(viii) The learned Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam, allowed the appeal holding that when the respondents 1 and 2 by Exs.A.3 and A.4 intimated the appellant the two sums of Rs.20,513 and Rs.16,684/- ought to be paid by him and a sum of Rs.33,610/- was adjusted and called upon the appellant to pay the balance sum of Rs.3,587, the appellant did not send any reply and did not request for verification of M Book and audit objection. The learned Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam, took note of the fact that the appellant admitted his signature in the M Book and the error in the calculation. Considering the terms and conditions of the agreement, the learned Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam, held that the amount received is only adjustment and not set off or counter claim.

4. Against the said judgment and decree, dated 01.03.1995, the appellant has preferred the second appeal.

5. At the time of admitting the second appeal, this Court framed the following substantial questions of law:

1. Whether in view of the claim made by the respondents in their written statement read with the provisions contained under Order VIII Rule 6 and 6-A of the C.P.C., the said claim is only a mere adjustment and not a counter claim and adjustment and either case, are they not bound to value the said claim and pay court fee thereon and consequently, was the Court below right in setting aside the decree of the trial Court, treating the said claim only as a mere adjustment and also accept the same, especially when they failed even to value it and pay court fee thereon?

2. Whether in view of Clause 33-A of Ex.A.1, Agreement, the respondents are not bound to pay the entire 2-1/2% of the value of the work done viz., Rs.33,610/- retained by them to the appellant on 29.9.1988, when admittedly the appellant had duly completed the construction according to the specifications prescribed by them and handed over to them on 29.9.1986 and they had not noticed any defect in the said construction within 2 years thereafter (i.e.) till 29.9.1988?

3. Whether the failure of the Court below to consider the pleadings and the oral and documentary evidence on record, more particularly, the contents of the written statement and Ex.A.1 and depositions of P.W.1 and D.W.1 with reference to the position of law, had not made its judgment incorrect and perverse?

6. The learned counsel for the appellant submitted that 2.5% of additional security deposit was retained by the respondents only as a security for rectification of defect, if any, which may occur within two years of completion of work. The respondents have no right to recover the amounts for any other purpose. The amount claimed by the respondents is not admitted amount and therefore, it cannot be said that the respondents have adjusted the same. The respondents must make a counter claim or set off and pay the Court fee and prove the same. The learned Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam, failed to consider this aspect. The respondents have not issued any notice to the appellant with regard to recovery of amounts. They only intimated about audit objections and no opportunity was given to the appellant to explain his stand. As per the terms and conditions, upto 5% excess materials can be used by the appellant. The respondents are not entitled to claim value of the said materials. In the present case, the appellant has not used excess materials more than 5%. The mistake alleged to have been committed in M Book is not by the appellant, but it is by the Officials of the Public Works Department and the appellant cannot be penalised for the mistake committed by the respondents. The learned Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam, failed to consider the contention of the appellant and the terms and conditions in the agreement in proper perspective and erroneously allowed the appeal.

7. Per contra, the learned counsel for the respondents 1 and 2 submitted that by Exs.A.3 and A.4, dated 27.08.1988 and 25.08.1988, the second respondent intimated in the year 1988 about the recovery based on the audit report. The appellant did not send any reply and did not seek verification of M Book. Only after three years, the appellant sent Ex.A.5 notice, dated 03.01.1991 and filed the suit. As per Clause 27 of Ex.A.1 Agreement, after final audit only, security deposit of the Contractor will be refunded after adjusting the amount payable by the Contractor to the Department. The appellant has admitted the measurement in M Book, which was marked as Ex.B.6 and admitted the errors pointed out by the respondents. The appellant did not return the remaining materials to the respondents and therefore, he is not entitled to claim the benefit of 5% excess utilisation of materials. As per Clause 71 of the Madras Detailed Standard Specifications, the respondents are entitled to adjust any amount due to the Department from the Contractor for the payable amounts in the same contract or from any other contract. The amounts recovered was only adjustment and it is not counter claim or set off. Therefore, the respondents are not liable to pay any Court fee. The learned Subordinate Judge, Kumbakonam, having held that the respondents are entitled to recover the amount, erred in decreeing the suit on the ground that the respondents failed to pay the Court fee on the amount recovered. As per Clauses 15, 27, 29, 33 and 33-A of the Agreement entered into between the appellant and the respondents read with Clause 71 of the Madras Detailed Standard Specifications, the recovery made by the respondents is only an adjustment and it is valid and legal. The learned Additional District Judge-Chief Judicial Magistrate, Thanjavur at Kumbakonam, has considered all the material facts and law in proper perspective and allowed the appeal. There is no question of law arises in the second appeal and therefore, he prayed for dismissal of the second appeal.

8. Heard Mr.C.Selvaraj, learned Special Government Pleader appearing for the third respondent.

9. I have carefully perused all the materials available on record, the judgment and decree of the Courts below and considered the arguments advanced by the learned counsel appearing for the parties.

10. The appellant is a licensed Contractor. In any contract entered with the Public Works Department, the Madras Detailed Standard Specifications forms part of the said contract. The said Madras Detailed Standard Specifications need not be attached to the agreement entered into between the Contractor and the respondents. In the present case, the respondents have recovered two sums of Rs.20,513/- and Rs.13,194/- from the additional security deposit of 2.5% of the appellant and called upon him to pay the balance sum of Rs.3,587/-. The contention of the appellant is that these two sums are disputed amounts and no notice was given to the appellant before adjustment. Exs.A.3 and A.4 are only intimation and the respondents can recover these amounts only after paying Court fee and proving their case. This contention is untenable. The second respondent issued Exs.A.3 and A.4 intimating the recovery of amounts and called upon the appellant to pay the balance amount. The appellant has not sent any reply objecting to the same and did not call upon the respondents to produce the audit report or M Book for verification. Only after three years, he has issued Ex.A.5 notice dated 03.01.1991, calling upon the respondents to pay Rs.33,610/-.

11. Further, in the cross-examination, the appellant as P.W.1 admitted the measurements in M Book and admitted that he signed M Book. He also admitted that there are certain errors in the calculation of the amounts payable to him. He has stated that he returned the cut piece of steel to the Godown of the second respondent, but admitted that he has not obtained any acknowledgement for the same. This contention cannot be accepted, for the simple reason that whenever any material was issued to the appellant, he shall acknowledge and similarly, whenever he returns the materials, he shall obtain acknowledgement for the same. The appellant is the licensed Contractor and has obtained contract for Rs.14,34,437/- from the first respondent. It is not the case of the appellant that this is his first contract with the Public Works Department. Therefore, his evidence in the cross-examination that he is not aware of the Madras Detailed Standard Specifications, cannot be accepted. The respondents have proved that as per Clause 27 of the Agreement, the amounts if any, can be refunded to the Contractor from the security deposit only after final audit. In the present case, two sums of Rs.20,513/- and Rs.13,194/- are recovered based on the audit report. Further, as per Clause 71 of the Madras Detailed Standard Specifications, the respondents are entitled to recover the amounts from the existing Contract or any other Contracts of the same Contractor. A reading of Clause 71 clearly shows that the amounts recovered from the additional security, is only an adjustment and not set off.

12. It is relevant to extract Clause 27 of the Agreement and Clause 71 of the Madras Detailed Standard Specifications.

Agreement:

27. Upon the terms and conditions of this agreement being fulfilled and performed to the satisfaction of the Estate Officer and after the vouchers relating to the work have been finally audited and the result has been communicated to the Registrar, the security deposited by the contractor as herein before received or such portion thereof as he may be entitled to under the said conditions shall be returned to the contractor.

Clause 71 of the Madras Detailed Standard Specifications:

''71. Recovery of money from contractor in certain cases.- In every case in which provision is made for recovery of money from the Contractor, Government shall be entitled to retain or deduct the amount thereof from any moneys that may be due or may become due to the contractor under these presents and/or under any other contract or contracts or any other account whatsoever.

13. The learned Subordinate Judge, Kumbakonam, erroneously decreed the suit on the ground that the respondents have not paid Court fee. The learned Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam considered these aspects with regard to various Clauses in the agreement and the Madras Detailed Standard Specifications and rightly held that recovery is only an adjustment and it is not a set off or a counter claim. Therefore, the substantial questions of law framed are answered against the appellant.

14. In the result, the second appeal is dismissed. The judgment and decree, dated 26.10.1999, made in A.S.No.3 of 1999 on the file of the Court of the Additional District Judge-cum-Chief Judicial Magistrate, Thanjavur at Kumbakonam, is confirmed and the judgment and decree, dated 01.03.1995, made in O.S.No.147 of 1991, on the file of the Subordinate Court, Kumbakonam, is set aside. No costs.