Gujarat High Court
General Manager Western Railway vs Ranjit Construction Co on 8 October, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
C/FA/2258/2002 JUDGMENT DATED: 08/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2258 of 2002
With
R/CROSS OBJECTION NO. 94 of 2010
In
R/FIRST APPEAL NO. 2258 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
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GENERAL MANAGER WESTERN RAILWAY
Versus
RANJIT CONSTRUCTION CO.
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Appearance:
MR MUKESH A PATEL(636) for the Appellant(s) No. 1
MR KG SUKHWANI(871) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 08/10/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. This First Appeal under Section 96 of the Civil Procedure Code is Page 1 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined preferred against judgment and order dated 04-05-2002 passed by 3 rd Joint Civil Judge (Senior Division), Vadodara in Special Civil Suit No.249 of 1996. By the impugned judgment and order, the suit of the present respondent (original plaintiff) was partly allowed and the plaintiff was ordered to recover amount of Rs.1,48,50,616/- with running interest of 18% from the date of suit i.e. 26-04-1996 till realization.
2. The appellant before the Court is Railways, whereas respondent is Construction Company. The Railways being original defendant and the appellant herein, be referred to as appellant and Construction Company being plaintiff - respondent herein, be referred to as respondent.
3. The appeal came to be admitted by this Court under order dated 25-10-2002 directing Record and Proceedings also to be sent and by order dated 25-10-2002 . In Civil Application No.5307 of 2002, order came to be passed wherein in Para-4 , directions were issued while granting stay of the impugned judgment and order to deposit amount of Rs.50,00,000/- with the trial Court within six weeks and for the remaining amount, responsible Officer of the Railway Authority was to file Undertaking to comply with the directions that may be given by this Court upon deciding the Appeal finally. In case of dismissal of the Appeal within six weeks thereof, entire balance amount was to be deposited within six Page 2 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined weeks or as per direction of the Court in the Appeal.
4. On the other hand, respondent was permitted to withdraw amount by furnishing Bank Guarantee to the trial Court with condition that life of Bank Guarantee shall continue till final outcome of First Appeal. The order also stipulated that in case of failure to furnish Bank Guarantee, amount was to be invested in the Nationalized Bank with cumulative effect and Fixed Deposit to be renewed from time to time.
5. Respondent has filed Cross Objection No.94 of 2010 at subsequent stage, which was ordered to be heard with this Appeal. It appears that attempts were made by both the sides by filing application for getting the matter heard at the earliest. Record and Proceedings is received. Over and above, appellant and respondent have submitted their respective Paper-book, on which they seek to rely upon.
6. The facts of the case pertain to Tender Contract being Tender No. S&C/1221 (LT), which was work of design and construction of new Broad gauge Railway bridge consisting of 9 spans of 18 meters and 1 span of 12.37 meters and the work included PSC girders, construction of foundation, substructure and superstructure across Narmada Main Canal on the track between Bakrol and Derol stations on Baroda-Godhara Broad Page 3 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined gauge section and the work was at kilometers 442/278.
7. Respondent had bided and quoted value of the bid at Rs.2,45,01,500/- against Tender Notice value of Rs.1,61,64,00,000/- (approximate cost). Upon due negotiation, bid of respondent was accepted at Rs.2,39,50,215/-, for which Acceptance Letter came to be issued by the appellant on 21.6.1991 and thereafter Agreement was executed between the parties. The chronology is that Tenders were opened on 15 th October, 1990. Negotiation commenced and offer was made by respondent on 26th February, 1991. Post negotiation, Tender Quotation of respondent was accepted and on 25th March, 1991, Acceptance letter was issued at Tender value mentioned in the preceding paras.
8. Entire work was to be completed within 21 months from the date of Acceptance letter i.e. 25-03-1991 and accordingly, work was to be completed on 24-12-1992. However, as per work contract under Clause- 17(2) of GCC (General Conditions of Contract) provided, extension of this period upon request being made by respondent and therefore, as respondent made an application for extending time period on two occasions, first extension was granted from 15-12-1992 to 24-02-1993. Second extension was for a period from 25-02-1993 to 31-10-1993.
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9. Even as per appellant, work was completed on 31-10-1993. The plaintiff filed suit on 15-04-1996 seeking decree of Rs.1,66,06,648/- with running interest at the rate of 24% per annum along with cost and expenses. As per respondent, cause of action for bringing in the suit was subsequent to contract being awarded during progress of the construction, there was non-cooperation by Railways by changing and alternating basic design, not performing their part of the contract within reasonable time and in not handing over work site as per the work contract, committing breach of contractual stipulations and obligation and lastly upon completion of work on 31st August, 1993, where on the claim for making payment arose on 10-10-1994, when respondent lodged their claim with the appellant by issuing notice under Section 80 of CPC and demanded outstanding amount. From the plaint, it is evident that under various headings, claims were made, which can be enumerated as under:
(1) Empty boring due to incomplete canal: Rs.5,11,292/-
(2) Faulty performance of the contract by appellant resulting in unreasonable delays resulting in idling of machinery: Rs.11,62,500/-
(3) Idling of manpower and overheads: Rs.23,48,337/-
(4) Loss of business in terms of profit by considering business turn over of respondent was Rs.2,40,00,000/- in 21 months to be at Rs.14,09,002/-
(5) Loss suffered due to alterations of design parameters by the appellant: Rs.37,68,004/-Page 5 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025
NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined (6) Losses due to sandy strata in foundation: Rs.13,56,410/- (7) Refund of recoveries of liquidated damages: Rs.89,903/-
(8) Interest on detained dues: Rs.59,61,451/-
Total: Rs.1,66,06,899/-
10. Out of aforesaid claim, by the impugned judgment and order, following claims were accepted.
(1) Cost of Empty boring due to incomplete canal bed level: Rs.5,11,292/- (2) Railway faulty performance due to unreasonable delays:
(i) Idling various machinery : Rs.11,62,500/-
(ii) Idling complete man power and overheads: Rs.23,48,337/-
(3) Loss of business in terms of profit: Rs.93,93,346/-
(4) Interest at the rate of 13% on loss of business: Rs.12,21,235/-
(5) Loss suffered due to alteration of design parameters by Railways:
Rs.37,68,004/-
(6) Loss due to sandy strata foundation : Rs.13,56,410/-
(7) Refund on recoveries of liquidated damages: Rs.89,903/-
Total: Rs.1,04,58,180/-
11. Accordingly, suit was partly allowed and suit was decreed for recovery of Rs.1,48,50,616/-, which included interest to the tune of Rs.43,92,436/-. Therefore, suit was partly allowed with decree to recover amount of Rs.1,48,50,616/-, which included interest to the tune of Page 6 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined Rs.43,92,436/- on the total claims allowed in favour of respondent.
12. Learned Advocate for the appellant has submitted that claim under the heading of Empty boring due to incomplete bed level was an issue which was already considered at the time of negotiation for schedule Item No.NS-1 and during course of negotiation, higher rate and higher value of the contract was accepted considering the nature of work involved, which included increase in Empty boring and excavation in the foundation due to difference between ground level and proposed canal bed level and therefore, claim of Rs.5,11,292/- was already covered at the time of negotiation and ought not to have been entertained. Referring to Clause-30, 30(1) of Tender document (Exh-33) and Clause-19 of GCC (General Conditions of Contract), it was obligatory for Contractor to inspect the proposed site and after being acquainted with the parameters like space, approach road, availability of labour material, water and electricity before submitting tender and therefore, it was not open for respondent to raise grievance regarding issue, for which now claim is raised. Particularly, about ground level, bridge alignment and canal bed level.
13. It is argued that as per terms of contract, periodical measurement of work is being done by Railway Officers in presence of Contractor or Page 7 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined his authorized Agent, which is being recorded in the Measurement Book for making periodical payment. Such Measurement Books have been signed by respondent without raising any dispute or protest. On the basis of such details entered into Measurement Book, interim payments have been made and accepted by respondent without protest. As on date, respondent has been paid for contract amount of Rs.2,39,50,215/- and Rs.14,89,383/- towards escalation charges. Final Bill has been paid on 15- 07-1994, though respondent has endorsed "under protest".
14. With regard to alleged delay in confirming the drawings, it is submitted that as per Condition No.2.2 of Tender document (Exh-33), Tenderer has to prepare working drawing and design and submit the same for Railways approval and Chief Engineer (C&S) Western Railway is final Authority for modification, revision, acceptance or rejection of design, thus prepared and work has to be executed as per design approved and accepted by the Railways and the rates of the Tenderer have to accepted for design, which are finally approved. He has drawn attention of this Court to Clause-1.3.2.1, 1.3.2.2 and 1.3.2.3 of Tender Contract. According to this, it was incumbent upon respondent to submit various reports like Geo Technical Report of trial bore in the vicinity, etc. and for which, it was provided that no claim or compensation on Page 8 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined account of variation shall be entertained.
15. It is submitted that as per Condition No.1.3.3 of Contract Agreement, it was provided that Tenderer will have to submit all the technical features with necessary details of technical designs and tentative drawings of RCC piles, substructure and superstructure, various standards, which have been adopted in the design, method of launching and erection in position, facilities for maintenance and inspection, over and above, what has been prescribed in the Tender document (Exh-33) for proper appreciation by appellant to as such its suitability of work. Upon being furnished with all these details, Railways have final Authority for design and structure.
16. It is submitted that Contractor had failed to submit in time detail design calculation and drawings for foundation along with relevant data, which has resulted into delay in approving final design and therefore, delay cannot be attributed to Railways, which aspect has not been taken into consideration by Civil Court, while passing impugned judgment and order. He has drawn attention of this Court to Condition No.2.5, 2.5.1 of Contract Agreement, which also provides for approving of design and drawings at the earliest. However, it was incumbent for Railway to also take into consideration Public Safety, for which Railway Engineers had to Page 9 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined check design calculation for foundation for substructure, superstructure of bridge in detail before approving the same, which is in itself time consuming process. In any case, approval of design and drawing would only come into question once respondent had submitted his details, which in the present case, was done belatedly by respondent himself and only excuses created that the appellant did not approve design within stipulated time.
17. Learned Advocate has argued that as per Condition No.1.3, 2.3 of the Contract Agreement, study of soil strata was part of responsibility of respondent, which was relevant, while considering design. Submission of any type of design or drawings without study of soil was of no consequence and would not be treated as complete drawing and design for approval of Railways. Even from documents on record, respondent had submitted soil strata report belatedly thereby delaying approval and therefore, cost of such delay cannot be borne by Railways. It is submitted that Clause-64 of GCC (General Conditions of Contract) stipulates that the contractor has to raise dispute within 90 days from the date of intimation of preparation of final bill and in the present case, final measurement was recorded on 24-11-1993 and final bill under protest was signed by the Contractor on 15-07-1994. Accordingly, dispute ought to have been Page 10 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined raised on or before 20-03-1994, but respondent has not raised any such dispute. Non raising of such dispute would amount to waiver of any claims against Railways and thereafter, no claim ought to be entertained and in fact, claim by respondent before the Civil Court was not maintainable at all. The Civil Court ought to have examined applicability of Clause-64(1)(i), which itself would stipulate two separate stages for giving notices and such clause being binding to the parties, which included waiver clause and therefore, respondent has no right to raise any dispute.
18. It is submitted that while deciding Issue Nos.2 to 5, the Court ought to have taken into consideration stand of the appellant as well, which the appellant had raised that respondent had remained inactive and negligent in submitting details and in absence of details, approval of drawings and designs by Railway Authority was not possible and therefore, erroneous finding is given by the Civil Court that there was breach of contract on the part of appellant in handing over of the site and for approval of designs and drawings.
19. It is submitted that in this regard, the Civil Court has completely failed to appreciate content of Exh-42 to Exh-49 and Exh-52 to Exh-64. It is submitted that grant of loss of profit at the rate of 13%, is also Page 11 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined erroneous, as there is nothing on record to indicate any loss suffered by the respondent, as and when the bills for work has been prepared, amount has been paid including final bill, there is no reasoning attached in the impugned judgment and order to consider the turn over of 21 months in calculating amount under head of loss of business in terms of profit. It is submitted that there is no reasoning given by the trial Court while granting amount of Rs.37,68,004/- under the head of alteration of design parameters due to sandy strata foundation.
20. It is submitted that the trial Court has committed an error in granting amount of Rs.37,68,004/- under head of alteration of design and amount of Rs.13,56,410/- under the head of sandy strata in foundation. It is submitted that the trial Court has committed an error in granting awarding interest at the rate of 18% to decretal amount till realization, wherein the Court has failed to consider Condition No.16(3) of GCC (General Conditions of Contract). Lastly, it is submitted that the trial Court has erred in entertaining suit particularly when Arbitration Clause is provided for and the respondent has not invoked Arbitration Clause.
21. As against this, learned Advocate for the respondent has submitted that after due negotiation, which included all the aspects, such as rates, technical details, designs, which were discussed at length. Negotiated Page 12 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined offer was submitted on 26th February, 1991, pursuant to which, the appellant was required to give clear site for commencement of the work immediately. The appellant was also required to excavate canal profile and clear canal bed, was required to be given for beginning of the work. It is submitted that design and drawings showing general arrangement with details was submitted by respondent on 23 rd April, 1991, but the appellant did not approve the design and drawings within stipulated time and the appellant was not able to hand over clear site for commencement of the foundation work. Despite repeated request, time was consumed by Railway Authorities in finalization and approval of design and drawings and also for handing over clear site to undertake work. Therefore, from beginning, the appellant did not give importance to time stipulation. Thereby, leading to non-conformity of time line, for which respondent was justified in claiming damages suffered by him due to delay in project. It is submitted that it is on account of inordinate delay by the appellant himself at various stages, work has resulted into delay and consequential damages to respondent.
22. It is argued that canal profile was incomplete at many places and at majority of foundation location and visibly a lot of earth work excavation was yet to be done before laying foundation. Therefore, Page 13 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined improper and unready site was reason for respondent not to commence contract work and complete it within stipulated time. It is submitted that handing over of incomplete, improper and unready site is fundamental breach of the terms of the contract, for which respondent was entitled to claim damages. It is submitted that respondent had plan to commence foundation work before onset of monsoon, but on account of delay on the part of the appellant, respondent had to face several difficulties resulting into additional expenditure being incurred. It is submitted that changes and alteration in the basic designs and drawings were very extensive, which are resulted into extra work to tune of 31%, which also is required to be borne by the appellant. As this extra work was disproportionately higher that original work as per contract between the parties.
23. Learned Advocate has argued to justify ideal cost incurred by respondent on account of machinery and man power laying ideal for the period of delay caused at the hands of appellant and therefore, such cost has to be borne by the appellant.
24. Having heard learned Advocates for the parties and having perused the documents on record. Main contention appreciated by the Civil Court are (1) designs and drawings were approved belatedly preventing Page 14 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined respondent from starting work in time, (2) failure on the part of Railways to hand over ready site to commence work, (3) modification, alteration caused by the Railways resulting in excess work, (4) nature of site, which required additional work like sandy strata.
25. The Court may deal with Cross Objection filed by the respondent- plaintiff. It appears to the Court that Cross Objection was filed in the year 2010; almost after period of 8 years and in the Cross Objection, only claim was with regard to applying interest at the rate of 24%. Prayer Clause in the Cross Objection is for modifying impugned judgment and order in the Special Civil Suit No.249 of 1996 to decree the suit in toto with running interest at the rate of 24%. No submissions were advanced on the Cross Objection.
26. The Court may thereafter deal with various judgments, on which parties have placed reliance for Court's consideration. On the issue of work site and price escalation, reliance is placed on the decision of Apex Court in case of K. N. Sathyapalan v/s. State of Kerala reported in (2007) 13 SCC 43, wherein facts would indicate that proceedings were arising out of Arbitration Act, where upon passing of award, State of Kerala had preferred petition under Section 30 of Arbitration Act challenging award and for setting aside the same. This petition was dismissed, against which Page 15 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined State had preferred Appeal before Kerala High Court and issue that was being dealt with that out of claims raised under 12 different heads, Arbitrator had allowed only 5 claims. It is in this factual background, question which was being considered by the Apex Court was with regard to absence of any price escalation clause in the original Agreement and specific prohibition to the contrary in the supplemental Agreement, could the appellant have made any claim on account of escalation of cost and whether Arbitrator exceeded his jurisdiction in allowing such claims. Such is not issue, which has come up as even the contentions raised by the appellant in the Civil Court. There was no such contentions raised or issues framed that escalation was not permissible. In Para-33, which is relied upon by learned Advocate for the respondent, finding is given by the Court with regard to facts typical to the case in the reported judgment.
27. Though learned Advocate for the appellant has cited various other judgments, but the same are on the issue of price escalation, which may not be required to be dealt with being repetitive in nature.
28. On the issue of overhead establishment charges, reliance is placed upon the decision of Apex Court in case of Associate Builders v/s. Delhi Development Authority reported in (2015) 3 SCC 49 and particularly on Page 16 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined Para-48, 52 and 56. Judgment being celebrated judgment on the issue of public policy vis. a vis. Arbitration and Conciliation Act. Aforesaid paras are addressing the facts of case before the Court particularly Claim Nos.9, 10, 11 and 15, wherein the fault was found with application of Hudson's formulae adopted by Arbitrator to conclude on the claim under heads. The High Court had held that Arbitrator had mechanically applied formulae and therefore, the Court found that the High Court has exceeded its jurisdiction in interfering with the possible view of the Arbitrator on facts like applying certain formulae to settle the claim. Para-52 and 54 are again on the issue of application of formulae to conclude claim and it is held that to apply formulae, one has to take into account contract value i.e. awarded and not work completed. This being the ratio, the same could not be applicable to the facts of the present case.
29. Another decision on the same point of overhead establishment charges, he has also cited decision in case of Mcdermott International Inc. v/s. Burn Standard Company Ltd. reported in AIR 2006 SCW 3276, which was also considered in the celebrated judgment of Associate Builders (supra), which also pertains to application of different formulae to be applied to different circumstances to assess the damage and this Page 17 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined application of formulae would eminently fall within domain of Arbitrator and would not warrant any interference from the Court.
30. With regard to point of loss of profit, reliance is placed on the reported decision in case of M/s. A.T. Brij Paul Singh and Bros. v/s. State of Gujarat reported in AIR 1984 SC 1703, wherein ratio laid down is that Contractor is entitled to claim damages on the basis of expected profit on balance of the work contract. However, extent of damage would depend on facts of each case. In Para-11 of the aforesaid decision, conclusion was arrived at that respondent was guilty of breach of contract in as much as rescission of the contract by respondent was held to be unjustified and the plaintiff contractor had executed his part of the work contract and therefore, contractor would be entitled to damages by way of loss of profit.
31. Considering the plaint and written statements, the trial Court famed the issues, which are as under:
"1. Whether the plaintiff proves that defendant western Railway awarded contract of Design and construction of BG Railway Bridge consisting of 9 span of 18 Mts. and 1 span of 12.375 Mts. PSC girders including construction of foundation substructure and superstructure across Narmda Main Canal between Bakrol Derol station on vadodara- Godhra BG section at KM.442/278 for value of Rs.2,39,50,215.00?
2. Whether the plaintiff proves that inordinate delay was exhibited from the defendant western Railway for progress of work which resulted in delay of contract and consequently, whether the plaintiff Page 18 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined suffered damages?
3. Whether the plaintiff proves that defendant Western Railway delayed approval of various drawings at stages?
4. Whether the plaintiff proves that both the parties felt and realised alteration and modification as essential and inevitable which resulted into extra work and more quantity of construction material?
5. Whether the plaintiff proves that extra work resulted into expenses unproportionately high including hikes in material?
6. Whether the plaintiff is entitled to various Claims detailed in para- 10 claim no.1 to 6 amounting to Rs.1,06,45,448/-?
7. Whether the plaintiff proves that interest of Rs.59,68,451/- is leviable from the defendant?
8. Whether the plaintiff is entitle to amount of Rs.1,66,06,899/-?"
32. Keeping in view the pronouncements of Apex Court in cases referred to herein above, the Court may examine the issues. With regard to Issue No.1, there does not appear to be any dispute and the same being answered in affirmative largely because, the issue was with regard to entering of the contract between the parties and value of the Tender pursuant to negotiation. The Court may therefore, not interfere with the finding for Issue No.1.
33. However, the Civil Court has proceeded to consider Issue Nos.2 to 5 jointly and while doing so, the Court has found that the Civil Court has in its reasoning reflected verbatim averments made by the plaintiff.
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In the plaint, what is averred in Para-4, 5 and 6 has been verbatim reproduced. From Para-8 and 9, the Court has undertaken exercise of verbatim comparison of averments made in Para-5, 6, 7, 8 and 9 with the findings given on Issue Nos.2 to 5 and find that there is no application of mind nor any reference to contention raised by the appellant in response to such issues. Therefore, while answering Issue Nos.2 to 5 in affirmative, there does not appear to be any independent reasoning assigned to hold in favour of respondent.
34. In the opinion of the Court, Issue Nos.2 to 5 make crux of the matter and therefore, would require application of mind to relevant clauses from work contract and Communication entered into between the parties in this regard especially with regard to approval of drawings and designs accompanied with necessary reports to form a complete report of drawings and designs for final approval of Railway Authorities. Exercise also needs to refer to relevant Clauses of Contract, which specifically covered eventuality of delay in approval of designs and specific provision regarding no additional responsibility on the appellant in such cause.
35. Clause-51.2 of the Tender document (Exh-33) would read as under:
"51.2 The successful tenderer shall follow the following programme for submission and approval of detail design.
(i) Design and drawing of general arrangements for bored piles and Page 20 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined R.C.C. pile cap including substructure of R.C.C. for abutments, return and piers within 23 days of issue of acceptance letter by the railway.
(ii) Submission of final modified drawing in (1) above after incorporating all modifications within 42 days of issues of acceptance letter/ the railway.
(iii) Design and drawings of P.S.C. girders and suitable bearing for P.S.C. Girders within 70 ways of issue of acceptance letter by the Railway.
(iv) Submission of final modified drawings in (iii) above after incorporating all modifications within 84 days of issue of acceptance letter by the Railway."
36. As per time prescribed herein above, 84 days were to expire on 18-06-1991, whereas evidence on record of the Communication intersay for the purpose of finalizing drawings has run into till 05-10-1991, which is Exh-48, which refers to submission of design of pile cap and piers, which is under preparation and was to be submitted in short period. Communication dated 22-10-1991 at Exh-49 also refers to request for approval as early as possible after submitting design calculation and drawings for pier cap and neoprene bearing. Meaning thereby, time line as specified in the aforesaid Clause appears to have been breached by respondent himself and therefore, error is committed by the Civil Court in holding in accepting contention of respondent that there is fundamental breach by the appellant in not complying with time line as Page 21 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined specified.
37. The Court may therefore, refer to Clause-2.5, which is for the purpose of approval of designs and drawings, wherein Clause-2.5.2.1, Clause-2.5.2.2, Clause-2.5.2.3 Clause-2.5.2.4 would read as under:
"2.5.2.1. Procedure for checking detailed calculations and working drawings.
Within one month from the receipt of acceptance letter, the contractor/s shall submit the detailed design and drawings to the Railways for approval in triplicate accompanied by complete information and sufficient data.
Within one month of approval of the design/drawings the Contractor/s shall supply the copies of detailed approved drawings and designs to the Railways in sufficient numbers as brought but in the tender documents (Clause 2.5.3) 2.5.2.2. Drawings and designs shall be in metric units and shall be neat and clear and supplemented by fell explanatory notes wherever required, If during the scrutiny of detailed design calculations and working drawings, any changes therein which are found necessary in the opinion of the Railways, shall be incorporated without altering the lumpsum quotation. It is entirely the responsibility of the contractor/s to submit the designs in good time. No claims shall be granted or accounts of late approval to the design and consequent delay in the executions.
2.5.2.3. Approval of drawings and design calculations by the Railways shall not in any way relieve the contractor/s and his consultants of his/their responsibility for the correctness, soundness and structural stability and safety of the structure.
2.5.2.4. The approved drawings and the design calculations of the bridge shall be the property of the Railways."Page 22 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025
NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined
38. This clause clearly stipulates that no claims shall be granted on account of late approval to design and consequent delay in execution. The trial Court has not at all refer to such contractual provision. Along with this, the Court may refer to documents, which has come on record with regard to approval of drawings, wherein first letter dated 23-04- 1991 vide Exh-39.
39. Railways has responded by letter dated 16-05-1991 vide Exh-41, which indicated to respondent that design could not be checked in absence of soil strata details and soil investigation require of field as well as Laboratory. Over and above general arrangement plan was also required to be submitted along with calculation, so as to adopt correct loading for superstructure. Such communication also informed respondent that Contract Agreement is ready and was awaiting signature of respondent and design calculation for pile foundation for abutment in duplicate is retained in the Office. In view of Communication by Railways, respondent responded by Communication dated 29-05-1991 resubmitting design calculation.
40. On 17-06-1991, another communication by respondent to the appellant regarding two sets of design calculations and drawings showing the details of reinforcement for pile under abutment. The Court may Page 23 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined thereafter cursorily go through certain another Communications in the interregnum period, thereafter referring to Communication dated 09-07- 1991 addressed by appellant to respondent invoking Tender Conditions vide Para 1.7.3(III) at page-163 of Paper-book.
41. On 09-07-1991, vide Exh-44 forwarding copy of observation by Deputy Chief Engineer (Bridges) for compliance and invoking Tender condition of Para-1.7.3(III) indicating the diameter of pile should be of minimum size of 1 meter, whereas design submitted by respondent was for 900 mm, which required change in design.
42. In response to 09-07-1991, respondent submitted his response on 29-07-1991 (Exh-45) giving details of such requirement stipulated in Exh-
44. The Court may thereafter refer to Exh-46, which is by Deputy Chief Engineer (Bridges) acknowledging submission of revised design for abutment A1 and A2 foundation and pier foundation of P1, P2 and P8, where three alternatives have been provided and also addressing deficit in required details in Para-5, 6, 7 and 8 of this Communication. Copy of which was also addressed to respondent.
43. Accordingly, respondent responded vide letter dated 29 th August, 1991 at Exh-47 referring to change in the design as per suggestion and Communication dated 05-10-1991 at Exh-48 indicating that design of pile Page 24 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined cap and pier is under preparation and will be submitted in short period. Again on 22-10-1991 at Exh-49, such designs were submitted.
44. Aforesaid Communications will have to be viewed by keeping in mind Clause-2.5.2.2 of Tender document (Exh-33) and the fact that that is established by referring to Communications mentioned herein above, it cannot be said that the appellant has delayed approval of drawings. In fact, Communications referred to herein above had justifiable reasons calling upon respondent to furnish improvise designs, so as to match requirement of appellant.
45. It was obligatory for the Civil Court to refer to Clause-2.5.2.2 and Communications intersay with regard to finalization of design before concluding that there was delay on the part of appellant, thereby giving cause of action to respondent to claim damages.
46. With regard to handing over of the site, it would be pertinent to refer to Clause-19(1) of GCC (General Conditions of Contract) at Exh-86 would read as under:
"19. (1) It is understood and agreed that the Contractor has, by careful examination, satisfied himself as to the nature and location of the work, the conformation of the ground, the character, quality and quantity of the materials to be encountered the character of equipment and facilities need preliminary to and during the prosecution of the works, the general and local conditions, the labour conditions Page 25 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined prevailing therein and all other matters which can in any way affect the works under the contract."
47. This Clause is with regard to Contractor's understanding and which is even before stage, he commences work. It is incumbent upon the contractor for careful examination and satisfying himself, as to nature and location of work including character, quality and quantity of material to be encountered and the nature of equipment and facilities needed. This Clause may be read with Tender document (Exh-33) under the heading of Conditions specifications particularly Clause-1.3.2, which provides for trial bore. Clause-1.3.2.1 to Clause-1.3.2.3 are specific requirements with Tenderer will have to satisfy himself by site inspection of trial bores and actual soil strata, which the contractor will be facing during work and framed his design and work out the rates, thus offered.
48. This Clauses further provide that there may be variation in the bed profile along with bridge alignment and the Contractor will have to undertake one boring per pier or abutment and based on such investigation only, foundation depth of each pier and abutment has to be designed. Reading of aforesaid Conditions specification would require the Tenderer to undertake the inspection exercise in detail, work out design as well as rates to be offered. Therefore, when respondent filled up Tender and offered his rates, obviously, it is presumed that he has acted Page 26 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined in consonance with Conditions of Tender document (Exh-33) and therefore, as per Clause-19 of GCC (General Conditions of Contract), it is not open for respondent to raise any grievance with regard to nature of sites, which had required respondent to undertake additional work or use additional material.
49. In the opinion of the Court, this relevant aspect, which has come on record by way of documentary evidence, has not been taken into consideration by the Civil Court.
49.1 The issues are framed on the basis of rival contentions of the parties and where there is differences on the factual assertion, the issues are framed. While answering the issues based on the evidence and reasonings, findings are given by the Court. In the instant case as recorded in the preceding paras, the Court has thoroughly compared verbatim content of averments made in the plaint, which have been reproduced, while answering the Issue Nos.2 to 5 in the impugned judgment. The Court does not find any reference to reply given by the appellant in its written statements to each of the contention. Meaning thereby, the Court has simplicitor adopted version of the respondent- plaintiff and given go by to the stand of the appellant.
Page 27 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined 49.2 To give strong foundation to reasonings, it was obligatory upon the
Civil Court to take cognizance of contention raised by the appellant herein and answer such contention by sound reasoning based on the evidence on record, which is missing in impugned judgment.
50. In the facts of the case, while answering Issue Nos.2 to 5, no reference is made to documents, which are relevant for deciding the issue. Before answering the issues, the Court has under the heading of reasons gave narration of evidence and arguments made by both the sides, but has not concluded as to which of the contentions and arguments, are required to be accepted and reasons for doing so.
51. The Court therefore, finds that answer to the Issue Nos.2 to 5 are bereft of any reasons, but are merely verbatim reproduction of averments of the plaint and therefore, such finding is required to be interfered with.
52. With regard to Issue No.6, 7 and 8 same are not independent issues, but are based on Issue Nos.1 to 5 and particularly, for quantification of damage, which is covered under Issue Nos.2 to 5. Therefore, Issue Nos.6, 7, 8, 9 are ancillary issues, which is completely reliant upon conclusion arrived at with regard to Issue Nos.2 to 5. Issue No.6 is with regard to entitlement of the plaintiff to various claims in Page 28 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined Para-10 of the plaint and Issue No.7 is with regard to entitlement of interest and Issue No.8 being entitlement of total amount. Issue Nos.6, 7 and 8 merely deals with calculation, which has its foundation in the Issue Nos.2 to 5.
53. Once this Court has come to conclusion that findings given in Issue Nos.2 to 5 have no legs to stand, consequential answer to Issue Nos.6, 7, 8 and 9 will also have to be interfered.
54. In the facts before this Court, this Court has arrived at finding that there was no breach of contract on the part of appellant giving rise to the cause of action to claim damages under the heads mentioned in the plaint. Moreover, finding arrived by the Civil Court were bereft of any reasons and conclusions not based on appreciation of evidence of both the sides and hence, the Court is of the view that impugned judgment and order is required to be interfered with and is required to be set and aside. Accordingly, impugned judgment and order dated 04-05-2002 passed by 3rd Joint Civil Judge (Senior Division), Vadodara in Special Civil Suit No.249 of 1996 is ordered to be set aside. Consequentially, respondent is not entitled to any of the claims staked by him in the plaint. Suit is therefore required to be dismissed and accordingly, Suit is hereby dismissed. The First Appeal is allowed. As a necessary Page 29 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025 NEUTRAL CITATION C/FA/2258/2002 JUDGMENT DATED: 08/10/2025 undefined consequence, the appellant is permitted to withdraw the amount deposited under interim orders of this Court with interest that may have accrued. The applicant is also discharged from Undertaking, if any given under the interim direction of this Court. Decree to be drawn accordingly. The parties to bear their own cost. R & P be sent back to the concerned Trial Court, forthwith.
Order on Cross Objection
55. In furtherance to Para-25, the Cross Objection is filed seeking modification of impugned judgment and order seeking decreeing the suit in entirety with running interest at the rate of 24% per annum. Though, no arguments were advanced in this regard by both the sides, the Court has examined averments made in the Cross Objection and to the Court, it appears that Cross Objection bearing Stamp No.94 of 2010 appears to have been raised after period of 8 years. Moreover, by separate reasons assigned by this Court, the Court has come to conclusion that there was no breach of contract on the part of the appellant, which is basic cause of action giving rise to claims. In view of aforesaid categoric finding given by this Court, claim of decreeing the suit in entirety is not required to be entertained. Therefore, Cross Objection is required to be rejected and accordingly, Cross Objection is rejected.
(A.Y. KOGJE, J) (J. L. ODEDRA, J) PARESH SOMPURA Page 30 of 30 Uploaded by MR PARESH J SOMPURA(HC00451) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 05:56:18 IST 2025