Madhya Pradesh High Court
The Food Corporation Of India vs Ratanlal N. Gwalani on 6 May, 2003
Equivalent citations: AIR2004MP215, 2004(1)MPHT56, AIR 2004 MADHYA PRADESH 215, (2004) 1 MPLJ 552, (2004) 1 MPHT 56, (2004) 2 CURCC 393
Author: A.K. Shrivastava
Bench: Dipak Misra, A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment and decree dated 7-10-1999 passed by the learned District Judge, Hoshangabad in Civil Suit No. 4-B/92, the defendant has preferred this appeal under Section 96 of the Code of Civil Procedure, 1908.
2. In brief, the suit of plaintiff, who is respondent herein, is that he entered into an agreement with the defendant Corporation for the construction of 50,000 M.T. capacity godowns under Phase-I sub-head superstructure (Balance Work) at Itarsi on 15-2-1987. The value of the work which was required to be performed by the plaintiff was Rs. 1,27,38,504.00 (Rupees one crore twenty seven lacs thirty eight thousand five hundred and four only), the period of the contract was 15 months w.e.f. 6-2-1987. The work order was issued on 8-1-1997, the date of stipulation for the completion of the contract, as per plaintiff was 5-5-1988.
3. As per the pleadings putforth in the plaint, the parties entered into the contract for building work which was based on reciprocal promises. According to the plaintiff, in the absence of the performance of the obligation on the part of the defendant, he could not perform his part of the contract and it was incumbent upon the defendant Corporation to co-operate in such a manner so that the work of the plaintiff could not be hampered and enable him to complete the work in the stipulated period. The case of the plaintiff is that the defendant Corporation failed at the very threshold of the contract to handover uninterrupted possession of the complete site so as to enable the plaintiff to complete the contractual work within the stipulated period.
4. So as to perform the contract, the plaintiff engaged a larger number of labourers for the execution of the work and for that he incurred heavy expenditure by giving them advance. The plaintiff had also mobilized all the resources (Machinery equipment etc.) in order to complete the work within the stipulated period but as the defendant Corporation failed to hand over the uninterrupted possession of the site, the valuable time which could have been utilised to execute the work was lost and the resources mobilized by the plaintiff were rendered useless due to the aforesaid breach of the owner.
5. It has been proponed by the plaintiff that on account of non-handing over of the site from the very beginning of the work, the plaintiff was put to uncertainty as on number of occasions the space for stacking materials etc. was encroached by another agency, i.e., M/s Ramesh Malik & Co. employed by the defendant Corporation for executing the construction of adjacent godown which caused a practical difficulty and restriction on the plaintiff to execute and progress his work caused huge losses due to non-utilisation of his resources etc.
6. According to the terms of the contract the defendant Corporation was duty bound to supply the material like Cement, Mild Steel, Tor Steel, A.C. Sheets, A,C. Fittings, Tubular Trusses with accessories etc. to the plaintiff, the details of which have been given in Para 6 of the plaint. According to the plaintiff, the defendant failed to perform his part of the contract as he did not supply the said required materials to the plaintiff in sufficient quantity and in due time despite the repeated requests made by the plaintiff. On account of the failure of the defendant to supply the requisite quantity of material in due time, the plaintiff sustained heavy loss due to idle labour and overhead expenses etc.
7. According to the plaintiff that his work also suffered on account of the non-performance of work by other agencies (contractors employed by the defendant Corporation). The work of the anti termite treatment was assigned to another agency and further work (viz., sand filling and base work etc.) was not required to be performed before the anti termite treatment which was required to be completed first. The plaintiff repeatedly requested the defendant Corporation to get these works completed which failed to complete the anti termite treatment in various godowns in time, which caused a huge loss to the plaintiff as his labour sat idle and he had to pay overhead expenses and his valuable time was lost. As per the plaintiff, he made several oral requests and also wrote letters in this regard to the defendant Corporation but it did not pay any heed to the defendant, as a result of which the plaintiff had to suffer immense loss due to the failure of the defendant to perform his part of the contract.
8. It has been specifically pleaded by the plaintiff that the 6 mm dia steel supplied by the defendant was all entangled for which the plaintiff made several requests to the defendant to solve the problem but it did not take up the work immediately and the progress of the work of the plaintiff suffered.
9. The defendant was obliged to supply the trusses along with its accessories, but then trusses supplied by the defendant were damaged and required welding of its components which again was not done by it and was done after the repeated requests of the plaintiff and that too at a belated stage which resulted in loss due to idle labour, overhead expenses. That apart valuable time being lost. According to the plaintiff, the trusses had wrapped and had to be straightened out by the defendant which again took a considerable time. The holes in the base plates of the trusses were also not properly matched by the defendant for which the plaintiff had to incur the extra labour, time and expenses to properly matched the holes. The defendant did not pay proper attention to the contract and the work of the plaintiff suffered loss due to negligence, carelessness and high handedness of the officials of the defendant Corporation. The plaintiff further pleaded that the plaster and white washing work was completed by him but the other agencies employed by the defendant for the electrical work completely mishanded the work in its hand and damaged the plaster, white washing etc. which was again performed by the plaintiff and for which he suffered loss due to extra labour and overhead expenses and valuable time was lost on the said count.
10. It has been putforth by the plaintiff that the steel work in mild steel angle nosing including cutting, placing in position etc. also increased much more than the agreed deviation limit and causing extra loss of time. The defendant arbitrarily withheld vast amount from the running bills of the plaintiff, the details have been shown in the Schedule 'F' attached to the plaint towards the alleged Employees Provident Fund for which there was clause in the contract and the said amount was, however, released by the defendant at a later stage and that too in instalments which caused financial hardship financial blockades to the plaintiff. The defendant also failed to provide the extra rates for extra work and make payment thereof in time to the plaintiff.
11. It has also been set forth in the plaint that for the work of roofing of godowns, the defendant Corporation had to supply A.C. Sheets of various sizes in good condition and time according to the requirement but the same were not supplied in time and when they were supplied they were found to be damaged and the quantity of the sheets were not supplied in required sizes resulting in extra skilled labour efforts and expenses due to overlapping and fixing extra, J. Hooks & other materials for which the plaintiff suffered huge loss, the amount of which has been given in detail in Para 14 of the plaint. The plaintiff in Para 16 of his plant has pleaded that the work which was entrusted to him was completed on 5-9-1988 and the possession of the various godowns was handed over to the defendant in the following manner :--
Godown No. Date of handing over No. 4 30-4-87 No. 3 30-7-87 No. 5 24-9-87 No. 6 26-11-87 No. 10 5-1-88 Nos. 2 and 9 23-8-88 No. 1 6-4-88 No. 8 27-7-88 No. 7 29-8-88 Last Godown
12. According to the plaintiff, the defendant reaped the benefits from these godowns and utilized them from the date of taking over possession. The defendant took the possession of the godowns after satisfying itself on the touchstone of the quality of the work but the plaintiff was put to surprise that a sum of Rs. 44,475/- was deducted by the defendant towards the alleged rectification which according to the plaintiff was neither required nor got done by the defendant. The plaintiff therefore claimed the said amount along with interest @ Rs. 12% p.a. from 5-3-1989, when this sum ought to have been paid to the plaintiff along with the final bill. The plaintiff has executed the work of Eve Gutters CGI Sheets of 0.80 mm thickness according to the agreement but the rate for the same which was paid to him by the defendant for the sheet of thickness of 0.63 mm. It is also the case of the plaintiff that the State Government charged an amount of Rs. 20,000/- towards the sales tax in respect to the goods supplied by the defendant Corporation for use in the contract work. As per the plaintiff the sales tax was required to be paid by the department and this condition has been embodied in the agreement. The plaintiff also claimed the said amount. After putting certain other amounts required to be received by the plaintiff from the defendant ultimately in Para 28 of its plaint the plaintiff submitted the details of the claim which reads as under:--
DETAILSOF CLAIMS CLAIMS SCHEDULE
1.
Rs. 29,476/-
Salvaged Sheets A
2. Rs. 2,13,307.90 Escalation B
3. Rs. 44,475.00 Rs. 16,011.00 Rs. 60,486.00
4. Rs. 17,987.00 Deducted illegally for rectificationsWork & item ex-ecuted but not paid for C
5. Rs. 11,672.00 Difference in rates initem of Semi CircularGutters D
6. Rs. 20,000.00 Sales Tax
7. Rs. 3,39,694.00 Infructuous overheadexp.
E
8. Rs. 19,484.65 Interest on E.P.F. F
9. Rs. 9,378.66 Interest on delayed RA Bill G
10. Rs. 17,127.00 Interest on late payment of extra items H
11. Rs. 84,219.00 Interest on delayed Final Bill
12. Rs. 9,378.00 Interest on illegal deduction I
13. Rs. 36,000.00 Interest on Security Deposit Rs. 8,68,210.00 The plaintiff had thus prayed for a decree against the defendant for Rs. 8,68,210.00 along with interest @ 18% p.a. pendente lite and future.
13. The defendant Corporation by filing the written statement denied the claim of the plaintiff. In the written statement objection of limitation had been raised and it has been pleaded that the suit is barred by time. Another objection of the defendant is that the plaintiff did not send any notice to the defendant calling him to pay compensation and unless and until a notice of demand is made and payment is refused then only a cause of action could have accrued to the plaintiff. According to the defendant, as no cause of action has arisen for filing of suit, the suit is not maintainable. The defendant, however, did not deny the execution of the contract between the plaintiff and the terms and conditions embodied therein. The stand of the defendant is that it performed its part of the contract entirely and strictly as per the terms of the contract and it has not committed any breach of any of the conditions of the contract. It has been pleaded by the defendant that the speed and progress of work of plaintiff was slow and it was not on account of any of the fault or breach of any of the condition of contract by the defendant but it was on account of the plaintiffs own negligency and inefficiency.
14. The averments of the plaintiff for the non-delivery of possession of his site in time was denied, further it was denied that the space for stacking material etc. was encroached upon by one M/s Malik & Co. who was employed by the defendant Corporation for executing the work of adjacent construction. In the nutshell the entire case of the defendant is that on account of plaintiffs own negligency, the work was not completed within the prescribed time and there had been no breach of any of the condition of the contract on its site and thus the defendant is not liable to pay any sum and the suit deserves to be dismissed. In the last, it has been specifically pleaded by the defendant that each and every claim of plaintiff demonstrated in Schedules A to I with the plaint is time barred.
15. The Trial Court framed the issues and recorded the evidence of the parties. The plaintiff examined himself as P.W. 1 and also examined Manohar Ashudave (P.W. 2) and Laxminarayan Malviya (P.W. 3). The defendant examined H.L. Tckchandani (D.W. 1) who at the relevant time was serving on the post of Assistant Manager in the Corporation. The defendant also examined Naresh Kumar Sahu (D.W. 2), who was serving on the post of Junior Engineer (Civil) in the department. Both the parties brought number of documents on record.
16. The Trial Court after considering the oral and documentary evidence came to hold that the suit of the plaintiff is within time and also held that the plaintiff is entitled to a decree of Rs. 5,46,924.25 and after deducting the amount of the interest the plaintiff is entitled to the interest @ 12% p.a. on Rs. 4,82,947.85 from the date of filing of the suit.
17. Feeling aggrieved by the judgment and decree, decreeing the suit of the plaintiff, the defendant has preferred this appeal.
18. We have heard Shri R.K. Gupta, learned Counsel for the appellant and Shri R.C. Sobhani, learned Counsel for the respondent.
19. Mr. R.K. Gupta, learned Counsel for the appellant has raised the following contentions:--
(a) The claims which have been putforth in the suit could not have been raised being barred by limitation inasmuch as they do not form the part of the final bill which was supposed to be prepared by the contractor. But he being not co-operative, the owner under compelling circumstances prepared the same. To elucidate the proponement of Mr. Gupta is that if a particular claim is not included in the final bill, the limitation qua the said claim would run from the date of completion of work which in the case at hand is 5-9-88 and the suit having been filed in the year 1992 is barred by limitation.
(b) All the claims which have been putforth and compensation have been claimed do not form a part of the final bill and hence, the stance taken on the first ground would apply to each claim and the plaintiff must wriggle out of the same.
(c) As the plaintiff had accepted the final bill without any protest that would amount to positive acceptance by the plaintiff and thereafter, he can not take a somersault and lodge a claim in the common law forum as claims can not be tenable being hit by the concept of estoppel.
(d) Assuming for the sake of argument that the claim being tenable being not hit by concept of estoppel, the same would also be barred by limitation even if limitation is computed from the date of final bill inasmuch as the plaintiff had not intimated whether he had raised any dispute as provided under the requisite clause of the contract. Learned Counsel has referred to the clause which deals with the preparation of final bill.
(e) The claims have been putforth at an escalated rate which was not agreed to by the owner and, therefore, such claim is not adjudicable but as such an exercise has been done by the learned Trial Judge, the entire judgment is vitiated. Learned Counsel has commended us to the decisions rendered in the cases of Vipinbhai Rs. Parekh v. General Manager, Western Railway, Bombay, AIR 1984 Guj. 41 and Jullundur Improvement Trust, Jullundur v. Kuldip Singh, AIR 1984 P&H 185.
20. Per contra, Mr. Sobhani, learned Counsel for the respondent, has submitted that limitation shall commence from the date of preparation of final bill as there has been successive denial or refusal by the owner and such successive denials would come to the rescue of the plaintiff and save the limitation. To buttress his submission he has commended us to the decisions rendered in the cases of Mst. Rukhmabai v. Lala Laxminarayan and Ors., AIR 1960 SC 335 and Gannon Dunkerley and Co. Ltd. v. Union of India, AIR 1970 SC 1433. He has also referred to Clause 7 of the agreement to show that though disputes were raised, some were not paid heed to and, therefore, the concept of estoppel is not attracted. That apart, it also submitted by the learned Counsel that the plea of estoppel has not been putforth in the written statement and no issue was framed with regard to estoppel.
21. The main contention of the appellant is that the suit of the plaintiff is barred by time. Taking into account of the first facet of the matter which pertains to the suit being barred by time as alleged by the defendant in the present case, it is no more in dispute that the work of construction of godowns of defendant was executed by the plaintiff. According to the defendant, the cause of action would accrue to the plaintiff on the different dates on which the plaintiff had shown the laches on the part of the defendant and from that date the period of limitation would be reckoned and if the period is reckoned accordingly the suit of plaintiff would become time barred. According to the plaintiff, the payment of final bill was made on 4-8-1990 and from this date the period of limitation would be computed and as the suit has been brought within three years from this date; i.e., 4-3-1992, the same is within limitation as per Articles 55 and 113 of the Indian Limitation Act, 1963 (in short 'the Act'). To understand the rival contentions of learned Counsel for the parties, it shall be apposite to refer Articles 55 and 113 of the Limitation Act which read as under :--
Description of suit Period of Limitation Time from which period begins to run
55. For compensation for the breach of any contract, express or implied, not herein specially provided for Three years When the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases.
113. Any suit for which no period of limitation is provided elsewhere in this Schedule Three years When the right to sue accrues
22. According to Clause 7 of the conditions of the contract, it is stipulated that a monthly payment shall be made to the contractor in proportion to the part of the work he had executed to the satisfaction of the Engineer-in-Charge and such intermediate monthly payment shall be regarded as payments by way of advance against the final payment and not for payment of work actually done and completed. It has also been embodied in this clause that the final bill shall be submitted by the contractor within one month of the date fixed for completion of the work or of the date of the certification of completion furnished by the Engineer-in-Charge and payment shall be made within three months and the payment shall be made within six months if the amount of contract exceeds Rs. 2 lakhs of the submission of such amount. Hence, unless and until the final bill is finalised which would also include the running bill of the work done, no cause of action would accrue to the plaintiff to file any suit nor the period of limitation would be reckoned earlier to it. More than seven decades back the Privy Council in the case of Mt. Boh v. Mt. Koklan and Ors., AIR 1930 Privy Council 270, had laid down the law that "there can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted". The said principle was followed by the Privy Council in its later decisions An-namalai Chettiar and Ors. v. A.M.K.C.T. Muthukaruppan Chettiar, AIR 1931 PC 9 and Govinda Narayan Singh and Ors. v. Sham Lal Singh and Ors., AIR 1931 PC 89. There is nothing in law which says that the moment a person's right is denied he is bound to bring a suit. The Apex Court in the case of Mst. Rukhmabai (supra) in Para 33 has held as under :--
"33. The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however, ineffective and innocuous it may be, can not be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."
23. To us the case of Rukhmabai (supra) squarely covers the present dispute. In the present case, there is no factual dispute that final bill was submitted by the plaintiff on 4-8-1990 and the suit was filed on 4-3-1992, i.e., within three years from the date of the submission of the final bill. Indeed, the right to sue accrued to the plaintiff only after the submission of his final bill and the non-payment thereof. The Supreme Court in the case of Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority, AIR 1988 SC 1007, has held that the period of limitation has to be computed from the date of the claim is asserted and the payment is denied and there is a denial of repudiation of the claim. Their Lordships in Para 4 held that:--
"On completion of the work a right to get payment would normally arise but where the final bills as in that case have not been prepared and when the assertion of the claim was made on 28th Feb., 1983 and there was non-payment, the cause of action arose from that date, i.e., 28th Feb., 1983."
In the present case, as we have discussed hereinabove and as there is no dispute that the final bill was submitted on 4-8-1990 and, therefore, from this date the period of limitation is to be reckoned. The decision of Major (Retd.) Inder Singh Rekhi (supra) was followed by the Bombay High Court in the case of M/s, R.P. Souza and Co. v. Chief Engineer, Public Works Department, Altinno, Panaji, Goa and Ors., AIR 2000 Bombay 74, and in this case in Paras 10 and 13 it has been held that once the work of construction entrusted to a contractor is completed, it would be the duty of the party to see to it that the final bill in relation to the dues payable to such contractor in respect of the work is prepared and paid within reasonable time from the date of completion of such work, unless there are justifiable reasons for delaying the preparation and payment of the final bill. The Corporation should have itself come forward within a reasonable time from the date of the completion of the work to prepare the final bill in relation to the work relating to the contractor. The delay in the preparation of the final bill for the work carried out by the plaintiff for the defendant-Corporation, it would not permissible for the defendant thereafter to raise the point of limitation.
24. The scenario can be looked from another spectrum. If Clause 7 of the conditions of the contract elucidating and guiding the mode of payment and the presentation of the final bill are kept in juxtaposition with the payment of the final bill on 4-8-1990, it would become clear as noon day that the suit filed on 4-3-1992 was well within the prescribed period of limitation. No authority is required to be quoted in this regard when the factual matrix is crystal clear leaving scintilla of doubt that the suit is within limitation.
25. In the case of Gannon Dunkerley (supra), Their Lordships while elucidating Article 120 of the Limitation Act of 1908 held that an accrual of the right asserted in the suit and its infringement, or atleast a clear and unequivocal threat against whom the suit is instituted. In the present case, the admitted position is that the final payment of the bill was made on 4-8-1990 by the defendant and, therefore, right to sue accrued to the plaintiff from this date and the suit is well within the prescribed period of limitation.
26. In the present case, the defendant is Food Corporation of India which is a public authority. It is unfortunate that a public authority like the defendant is raising the plea of limitation (though the suit is within time) to deprive a just claim of the plaintiff though it should not have raised this objection in all morality and justice. Though a public authority is not prohibited from raising such a plea and the Court is duty bound to decide such plea when if it is raised but such a plea should not ordinarily be taken up by the public authority unless the claim of the plaintiff is not well founded and by raising of delay of filing a suit the evidence for the purpose of resisting such claim has become unavoidable. In this context, it will be profitable to refer the two judgments of the Supreme Court The Madras Port Trust v. Hymanshu International, AIR 1979 SC 1144 and Mahavir Kishore and Ors. v. State of M.P., 1990 JLJ 1.
27. Now we shall discuss the case law relied upon by the learned Counsel for the appellant to bolster his contention that the suit is barred by time. In the case of Jullundur Improvement Trust, Jullundur (supra), the payment of the final bill was received on 14-12-1967 and the suit was filed on 9-2-1971 and thus it was held that the suit was barred by time. The situation in the present case is different. Here the amount under the final bill was paid to the plaintiff on 4-8-1990 and the suit was filed on 4-3-1992, therefore, the case of Jullundur Improvement Trust, Jullundur (supra) is clearly distinguishable.
28. The contention of Shri Gupta, learned Counsel for the appellant is that the claims which have been putforth and the compensation that has been claimed do not form the part of the final bill and, therefore, the suit of the plaintiff is barred by time can not be accepted for the simple reason that there is no pleading to this effect in the written statement and no evidence has led to that effect by the defendant nor there is any suggestion made to the plaintiff during his cross-examination. The Supreme Court in the case of C. Mackertich v. Steuart & Co., AIR 1970 SC 839, has held that point which was not raised in the written statement, it should not have been allowed to be raised in appeal. In the case of Messrs. Trojan & Co. v. RM.N.N. Nagappa Chettiar, AIR 1953 SC 235, it has been held by Their Lordships that the decision of a case can not be based on the grounds outside the pleadings of the parties and it is the case pleaded that has to be found. As we have discussed hereinabove that there is no pleading in regard to the issue which now defendant-Corporation is raising, the same can not be now agitated which definitely have nexus with the facts. In this regard, the decision of Single Bench of this Court in the case of Mishrilal v. State of M.P., 1986 JLJ 451, also throws sufficient light.
29. Thus, on the basis of the anvil of the ratio decidendi of the aforesaid decisions, we have no hesitation to hold that the suit of the plaintiff is within time and the learned Trial Judge did not commit any error in arriving at the said conclusion.
30. The other contention which has been raised by the learned Counsel for the appellant that the plaintiff having accepted the final bill without any protest and objection, would amount to positive acceptance by plaintiff and thereafter he can not ask for any other payment and he is estopped from raising the dispute. The said contention though appears to be attractive at the first blush but on a deeper scrutiny found to be devoid of any substance. The plaintiff did not make any endorsement while receiving the payment of the final bill that he had received the payment in full and final settlement of all the demands. There is nothing on record to show that there was any accord and suggestion in the sense of bilateral consensus. No evidence has been led by the defendant that the plaintiff received the final bill was conscious and aware that the amount which he had accepted was in full and final. Indeed there is no pleading of the defendant in this regard in its written statement. As there is no pleading, no issue has been formed in this regard. On going through the entire judgment of the Trial Court, it is perceptible that this point was not raised before it. The argument which has been set forth by the learned Counsel for the appellant is having nexus with the facts which was required to be pleaded by the defendant in its written statement. It is well settled in law that the fact which has not been pleaded, no decision could be passed thereupon. The point which now the defendant is raising appears to have been borrowed from the context of Section 63 of the Indian Contract Act but without any pleading to that effect, the defendant can not be permitted to raise this point for the first time in this Court and to put the plaintiff into surprise, therefore, we have no hesitation to repel the argument of learned Counsel for the defendant. The applicability of principle of estoppel is not applicable in the present case because there is nothing on record so as to demonstrate that anywhere, at any point of time, the plaintiff by his declaration, act or omission intentionally caused or permitted the defendant to believe that he had obtained the payment of final bill in full satisfaction and thus, the point which has been proponed by the appellant can not be accepted.
31. It has been next putforth by the appellant that the claims which have been raised by the plaintiff claiming the compensation do not form part of the final bill and hence the judgment rendered by the Trial Court is vitiated. To appreciate this argument, we have seen the pleadings of the parties, the plaintiff in different paragraphs of his plaint has pleaded that how and in what manner the defendant was negligent and caused hindrance in performing the work of the plaintiff and how much loss he had suffered. The plaintiff along with the plaint attached several schedules demonstrating the details of the loss he suffered. The defendant in its written statement has not raised this plea that the claim do not form the part of the final bill. On the other hand, the defendant denied the averment of the plaintiff claiming compensation on account of the laches and negligency of the defendant which hampered his work. Thus, in absence of any such pleading, the raising of this point would amount to throw an arrow in the air without any target.
32. The last point which has been raised by the appellant is that the plaintiff has claimed an escalated rate which was not agreed to by the defendant and, therefore, such claim is not tenable. Again, this point has been raised without any base of the pleading in the written statement. This was also not put to the plaintiff in the cross-examination and there is no evidence of defendant in this behalf. The defendant has examined H.L. Tekchandani who was serving on the post of Assistant Manager in the Corporation during the relevant time but nowhere he has stated that the escalated rate putforth by the plaintiff was not agreed to by the defendant. Looking to the pleadings of the parties and the evidence both oral and documentary and the reasonings ascribed by the Trial Court, it is crystal clear that on account of negligency and hindrance created by the defendant, the work could not be completed by the plaintiff in time. The conditions of the contract are not in dispute. The contract did include the provision of extention of time vide Clause 5 and as well as the provision of penalty vide Clause 2. Thus, the time never remained an essence of contract. In this context, it shall be apposite to refer the judgment of the Apex Court in the case of Mis Hind Construction Contractors v. State of Maharashtra, AIR 1979 SC 720. There are catena of the exhibits demonstrating that the plaintiff submitted extention applications from time to time indicating therein the hindrances created by the defendant which resulted in delay in the progress of the work. Some of those Exhibits are Ex. P-35, Ex. P-40, Ex. P-94, Ex. P-103 and Ex. P-109. The plaintiff submitted application for the extension of time, it was duly considered by the defendant and granted outright extension under Clause 5 of the contract without imposing any penalty. In this context, Ex. D-115 is a very material document. It is pertinent to mention here that the defendant while granting extension, no where stipulated any rider by mentioning that the delay had been attributed on account of the fault of the plaintiff. On going through the oral and documentary evidence, the only inference which could be drawn is that the defendant committed several defaults in fulfilling their reciprocal promises which resulted in losses and damages to the plaintiff. In these situations, we are enlightened by the law laid down by the Apex Court in the case of P.M. Paul v. Union of India, AIR 1989 SC 1034.
33. The contract provides payment of "escalation" and this find place at pages 36 to 38 of the contract which stipulates that "no increase in the contract price due to escalation is payable if in the opinion of the Corporation that the delay is attributed to the contractor". We have already discussed hereinabove that vide Ex. D-115 the defendant granted outright extension of time without putting any rider or putting any note that even a single day's delay was attributed on account of the fault of the contractor. The question of escalation has been dealt with by the Trial Court while discussing the issue No. 9 which according to us is in consonance with the evidence as well as on the basis of the case law referred in the judgment. In the case of Hyderabad Municipal Corporation v. M. Krishnaswami Mudaliar and Anr., AIR 1985 SC 607, it was held by Their Lordships of the Supreme Court while dealing with Sections 55 and 73 of the Indian Contract Act have held that the contractor is entitled for extra payment for the extended period of contract on account of inflation because the department extended the period of the contract.
34. The Trial Court, in our considered opinion, was right in allowing the escalation and the claim towards overhead expenses. On the basis of the pleading and the totality of circumstances, we find that the delay had occurred on account of several faults of the defendants in the following manner :--
(i) The defendant failed to deliver the possession of site in due time; (ii) Space for stacking for material was encroached partially by M/s N.B.C.C.; (iii) The defendant supplied entangled 6 mm dia steel; (iv) Trusses supplied by the defendant were defective; (v) There was defective workmanship of electrical agency; (vi) The defendant wrongly withheld amount towards EPF; (vii) Some cracked sheets were provided by the defendant; and (viii) Wrong recovery of sales tax on work contract; withheld for alleged rectification etc.
Indeed the aforesaid faults of the defendant have been noticed by the Trial Court on the basis of the evidence placed on record.
35. On account of the aforesaid reasonings, the various contentions of learned Counsel for the defendant/appellant can not be accepted and for this reason, the case law of Vipinhhai RS. Parekh (supra) is not at all helpful to the appellant.
36. We have given our bestowed consideration to the reasonings assigned by the Trial Court. We have tested the reasonings on the touchstone of the pleadings and the evidence and find that only a singular view could have been arrived which, indeed, has been taken by the Trial Court.
37. We have discussed each and very point which has been raised by the learned Counsel for the appellant but on the basis of the aforesaid reasonings, we are of the view that none of them is sufficient to put any dent on the reasonings ascribed by the Trial Court decreeing the plaintiff's suit. We may hasten to add no argument was advanced with regard to the quantum and, therefore, we have refrained from adverting to the same. However, as far as interest is concerned, we are inclined to reduce it 9% per annum.
38. In the result, the appeal is allowed to the extent indicated hereinabove. Parties are to bear their respective costs of this appeal.