Madras High Court
The Superintending Engineer, ... vs The Green Lands New India Construction ... on 18 March, 1993
Equivalent citations: (1993)2MLJ228
JUDGMENT Srinivasan, J.
1. Defendants 1 to 4 have preferred this appeal against the judgment and decree in O.S. No. 228 of 1981 on the file of the Subordinate Judge's Court, Periyakulam. The parties will be referred to hereinafter in accordance with their rank in the suit.
2. The first plaintiff is a partnership firm carrying on business in engineering jobs and construction works. The second plaintiff is the managing partner thereof. The plaintiffs entered into an agreement with the first defendant on 9.2.1974 for the execution of Suruliyar Hydro Electric Project Highways Dam excavation for foundation from Chainage 55 Metres to end of Dam, i.e., Chainage 165 metres upto the top of Highways Dam in Suruliyar Upper Cam -Specification No. S.M.H.37 Tender dated 17.8.1973. The plaintiffs took over the site on 9.2.1974 and started excavation work. The agreement was engrossed on stamp paper and signed by the parties on 15.11.1974, which is marked as Ex.B-1. The plaintiffs commenced the masonry work on 1.7.1976. Since then the excavation as well as masonry work were simultaneously carried out. According to the plaintiffs the work was completed by the end of the year 1978 and the last payment made by defendants 1 to 4 was on 9.4.1980.
3. As per the terms of the agreement the sand required for the work shall be collected by plaintiffs from the approved quarries at Periyar river near Chinnarnanur. There is also a clause that the sand collected should be in accordance with the Madras Detailed Standard Specifications known as M.D.S.S. When the plaintiffs brought the sand from Chinnarnanur the same was tested by the defendants and rejected by them as not suitable. By letter dated 19.12.1975 under Ex.A-5 the second defendant requested the plaintiffs to stop forthwith further collection of sand from Chinnamanur area and to collect the same from the then prevailing sand quarries of Govindanagaram, Lakshmipuram and Ambasamudram areas. Copies of the said letter were marked to the Assistant Engineers, I and II with instructions to report the extra lead involved over and above the specific lead in the tenders and the consequent additional cost of masonry to all the contractors. The second defendant assured the plaintiffs that extra cost would be paid for extra lead. Accordingly the plaintiffs collected sand from the approved quarries in Govindanagaram, Lakshmipuram and Boothipuram. According to the plaintiffs the defendants agreed to pay the extra cost involved by transporting sand from the newly approved quarries. The claim of the plaintiffs is that the additional cost incurred thereby is Rs. 92,729.29. When the plaintiffs wrote to the defendants for payment of the extra cost they were being informed that the matter was in the Chief Engineer's office for consideration. They have waited for some time and since there was no response the plaintiffs issued a notice under Section 80 of the Code of Civil Procedure calling upon the defendants to pay the additional cost, under Ex.A-9, dated 16.12.1980. After sending an interim reply under Ex.A-10, dated 29.12.1980 the defendants sent a final reply under Ex.A-11, dated 20.1.1981 stating that the claim of the plaintiffs had been rejected by the Board. The plaintiffs filed the present suit on 1.9.1981 for recovery of a sum of Rs. 1,00,119-75, inclusive of interest at 12 per cent per annum from 16.12.1980 to 31.8.1981 on the sum of Rs. 92,279.22. The plaintiffs have also prayed for subsequent interest from the date of plaint. A calculation memo is attached to the plaint setting out the distance and rates.
4. The defendants have raised the following pleas in the written statement:
The entire work was completed on 24.5.1978 and not by the end of December, 1978 as alleged in the plaint. The bill for the work was paid on 17.4.1980 and not on 9.11.1980. As per Clause 11 of the tender specifications, the contractor should inspect the locality and study the topography of the area. He should also inspect the quarries etc. and satisfy themselves about the availability of the materials and route of transport before submitting the tender. As per Clause 16 of the specification, every tenderer is expected before quoting his rates to inspect the site of the proposed works and study the topography of the area. The defendants found that the sand supplied initially by the plaintiffs was not suitable as it contained more than the allowable amount of silt and therefore, the second defendant instructed the contractors to collect sand from the newly approved quarries. There was no assurance by the second defendant to pay extra costs and instructions given to Assistant Engineers-I and II cannot be relied on by the plaintiffs. It is true that the plaintiffs collected sand from the approved quarries in Govindanagaram, Lakshmipuram and Ambasamudram, but they are not entitled to claim any extra amount therefor. The distances of the sand quarries from the Dam site are 37 Kms. from Chinnamanur; 48 KM from Lakshmipuram; 52.5 Km. from Govindanagaram and 60 Km., from Boothipuram. The extra rate for sand from Lakshmipuram works out to Rs. 3.95 per cubic metre and the quantity of sand used as per final bill claim is 6809 cubic metre. The additional cost works out only at Rs. 26,896 and the claim made in the plaint is neither legal nor correct. The plaintiffs have not sent any bill for the amount claimed and the suit claim is barred by limitation.
5. The trial court held that the defendants are liable to pay the additional cost incurred by the plaintiffs by transporting sand from new quarries different from that mentioned in the agreement and that the claim made by the plaintiffs is correct. It was held that the plaintiffs would be entitled to interest as the work was finished in 1978 and the plaintiffs had waited for payment for more than two years. On these findings the trial court granted a decree as prayed for by the plaintiffs. The plea of limitation was also negatived by the trial court. Aggrieved thereby defendants 1 to 4 have preferred this appeal.
6. Learned Counsel for the appellants-defendants 1 to 4 have raised the following contentions:
(1) Defendants have no liability to pay the extra amount claimed by the plaintiffs. There was no agreement or assurance by the second defendant to pay additional cost. It was the duty of the plaintiffs to inspect the quarries and ascertain whether the sand available was in conformity with M.D.S.S. and calculate the probable cost for transportation of suitable sand before submitting a tender. The second defendant was not authorised to give any assurance or enter into an agreement to pay additional costs and even if he had done so it is not binding on the Board with the result the plaintiffs are not entitled to claim the additional amount.
(2) The distances set out in the plaint and the calculation memo annexed thereto are erroneous. The maximum distance for which sand was transported was only 48 KM., and not 57 KM., as claimed in the plaint.
(3) The rates claimed by the plaintiffs are those prevailing in 1975-76 and the plaintiffs are entitled only to the rates prevailing in 1973-74 which were much less and (4) The suit is barred by limitation as the work was completed on 24th May, 1978 and the suit was filed only on 1.9.1981.
7. There is no merit in any of the contentions of learned Counsel for defendants 1 to 4. As regards the first contention we must observe even at the outset that the defendants have failed to produce the best evidence before the Court. In Sardar Gurbaksh Singh v. Gurdial Singh, 53 M.L.J. 392, the Privy Council has held that "it is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on. his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case." The plaintiffs have come to Court with a specific case that the second defendant assured them that additional cost involved by transporting sand from newly approved quarries will be calculated and paid to them. The second plaintiff has deposed as P.W. 1 in support of the averments made in the plaint. In chief-examination he has stated that when the defendants directed the plaintiffs to collect sand from quarries in Vaigai river, Govindanagaram, Lakshmipuram and Ambasamudram, he protested on the ground that the distance between the Dam site and the quarries would be much more and the expenses would be more. He has stated expressly that he mentioned the same to the second defendant and the latter agreed to pay the additional cost. He has also stated that the same is found in the instructions given to the Assistant Engineers in Ex.A-5, In the said letter dated 19.12.1975 written by the second defendant to the first plaintiff it is seen that the following instructions are given to the Assistant Engineers-I and II for necessary action;
The extra lead involved over and above the specific lead in the tenders may be reported and the consequent additional cost of masonry to all the contractors may be reported.
It should be noted that copies of Ex.A-5 were marked also to the first defendant and the Executive Engineer of Erovangalur for the purpose of issuing similar notices to the masonry and turnal contractors of his division. P.W. 1 has also stated that because the second defendant told him personally he collected sand from Boothipuram. In the cross examination P.W. 1 has reiterated the same version and added that even before Ex.A-5 letter was given to him he objected orally to collect sand from a distant place and only thereafter Ex.A-5 was issued. In spite of this categoric evidence by P. W. 1 the second defendant has not been examined on the side of the defendants. The only witness examined by the defendants is an Accountant in the Office of the Electricity Board at Madurai. He does not know the material facts. He does not know the distance between various quarry sites and the Dam site. He does not know the rates prescribed for transportation of sand. He does not know anything about G.O.Ms. No. 522, dated 4.3.1968, upon which reliance is placed by the plaintiffs. He does not know even the terms of Ex.B-1 agreement between the parties as he deposed that if there is a provision in the agreement for payment of additional cost it shall be paid and if there is no such provision it need not be paid. There is no explanation as to why the concerned Executive Engineer has not been examined. Hence, this Court is entitled to draw an adverse inference against the defendants as regards the disputed facts. The evidence of P.W. 1 remains uncontradicted by any acceptable evidence on the side of the defendants.
8. The instruction contained in Ex.A-5 which we have extracted above, clearly shows that the Executive Engineer agreed to pay the additional cost; otherwise there was no necessity at all for him to give instructions to the Assistant Engineers to calculate the extra lead and work out the additional cost and report the same. The plaintiffs have been consistently writing to the defendants for payment of the extra cost. Ex.B-3 is a letter dated 4.3.1977 addressed to the Chief Engineer, Project Circle (South), Tamil Nadu Electricity Board, the relevant portion of which is as follows: "... The promised higher rates or in other words the extra rate for transporting sand from an extra distance of about 38 Kms. especially when diesel prices have been increased in oil, grease, tyres and other prices connected with transportation is yet to be awarded to us." "The way the Superintending Engineer is evading these problems we are forced to appeal to you Sir,...."
As there was no reply another letter was written under Ex.A-6 dated 27.9.1977 with a similar request. A third letter was written on 3.11.1977 under Ex.A-7 the relevant portion of which is as follows:
...We have been under correspondence for the past two years regarding the extra lead for the transportation of sand and the consequent extra amount to be paid to us. We will be highly thankful to you Sir if you could kindly make an immediate approval of the amount due to us.
Thereafter a letter dated 26.12.1977 was written by the Superintending Engineer to the second plaintiff in reply to Ex.A-6 dated 27.9.1977 without making any reference to Ex.A-7 dated 3.11.1977. It was stated in that letter (Ex.A-8) that "the question of extra lead for sand for dam masonry works has been referred to the CEO and orders are awaited." Obviously this shows that there was an agreement or at least an assurance by the Executive Engineer to the plaintiffs to pay the extra amount. If as a fact there was no such talk at any time for payment of extra amount, there was no necessity for the first defendant to refer the matter to the Chief Engineer and inform the plaintiffs that it was under consideration.
9. Again the plaintiffs wrote on 2.1.1978 under Ex.B-4 to the Chief Engineer regarding sand extra lead, referring to Ex.A-8 and enquired him whether the extra amount had been granted so that the plaintiffs could assess their financial position and settle the affairs of the firm. There was no reply thereto and at no time the Chief Engineer wrote any letter to the plaintiffs. After waiting till December, 1980, plaintiffs issued a notice under Section 80 of the Code of Civil Procedure as per Ex. A-9, dated 16.12.1980. The defendants sent an interim reply on 29.12.1980 under Ex.A-10 that orders of competent authority were awaited and intimation would be sent in due course. A final reply was sent on 12.1.1981, under Ex.A-11. It contained only one sentence reading thus:
I have to inform you that your claim for payment of extra lead for sand used for construction of dams for Suruliyar Hydro Electric Project has been rejected by the Board.
It is significant to note that the factual averments contained in the plaintiffs notice Ex.A-9 have not been denied by the defendants under Ex.A-11. There is no explanation on the part of the defendants for not sending any detailed reply containing the relevant facts according to their version. Taking the above circumstances into account we have no hesitation to hold that as a matter of fact the second defendant, who is the Executive Engineer agreed to pay the additional cost which may be incurred by the plaintiffs by transporting sand from the newly mentioned quarries, viz., Govindanagaram, Lakshmipuram and Ambasamudram, and that only after getting such assurance from the second defendant, the plaintiffs proceeded to transport sand from the new quarries.
10. The next aspect of the matter to be considered is whether the Executive Engineer is authorised to give such directions or enter into such agreement. P.W. 1 has stated that the second defendant is the person in-charge of the dam construction and the entire superintendence and control are all with him. No doubt D.W. 1, the Accountant, has deposed that the general superintendence, preparation of the estimates, calling for tenders and payment of contractors' bills are all the work done by the Superintending Engineer, first defendant and that the agreement Ex.B-1 is between the first defendant and the plaintiffs. He has also stated that the second defendant has no right to modify Ex.B-1. Nowhere does D.W.1 say that the second defendant had no authority to ask the plaintiffs to bring sand from quarries different from that mentioned in Ex.B-1. He has admitted that a copy of Ex.A-5 containing such a direction was forwarded to the first defendant by the second defendant. Clause 21 of the conditions of contract forming part of Ex.B-1 is in the following terms:
The Superintending Engineer or the Executive Engineer in-charge reserves the right to decrease or increase the reach depending upon the progress of work shown by the concerned contractor....
Clause 18 of the Additional Conditions in Ex.B-1 reads thus;
When the wade is awarded to more than one contractor, the contractors may be allocated any reach as convenient and necessary. The reaches will also be re-allocated from time to time to suit the exigencies of work. The decision of the Executive Engineer in this regard is final and binding....
Similarly, Claus 23 is in the following terms:
The Superintending Engineer or the Executive Engineer in-charge reserves the right to decrease or increase the reach depending upon the progress of work shown by the concerned contractor...
The above clauses show that the Executive Engineer who is in-charge of the work is empowered to do such things as are necessary for the purpose of carrying out the work. If he was not empowered to direct the contractors to collect sand from quarries other than that mentioned in Ex.B-1, the first defendant should have immediately informed the plaintiffs to that effect on receipt of Ex.A-5 and stopped them from collecting sand from Govindanagaram, Lakshmipuram and Ambasamudram. There is no dispute that pursuant to Ex.A-5 the plaintiffs collected sand from the distant quarries and performed their part of the contract by transporting the same to the Dam site. D.W. 1 has admitted that sand was collected from Boothipuram by, the plaintiffs. P.W. 1 has given evidence positively about collecting sand from the new quarries as directed by the second defendant. At no point of time the defendants ever raised a protest that the second defendant was not entitled to give a direction different from that contained in Ex.B-1 as regards collection of sand and stopping the plaintiffs from doing the work. It is not therefore open to the defendants to raise a plea in these proceedings that they are not bound to pay for the additional cost incurred by the plaintiffs for transporting the sand.
11. Reliance is placed by the defendants on the following clauses in Ex.B-1.
13. The tenderer shall examine closely the Madras Detailed Standard Specification and also the Standard Preliminary Specification contained therein before submitting his tender unit rates which shall be for finished work in site. He shall also carefully study the drawings and additional specifications and all the documents which form part of the agreement to be entered into by the accepted tenderer.
Clause 3 of the Additional Conditions:
Sand required for the work shall be collected from the approved quarries at Periyar River near Chinnamanur. Sand collected should also conform to the M.D.S.S. Additional Conditions: Clause 11:
The contractor should inspect the locality and study the topography in the area. They should also inspect the quarries etc. and satisfy themselves about the availability of the materials and routes of transport before tendering.
Clause 16: "Specification: SUR. 37:
Every tenderer is expected before quoting his rates to inspect the site of the proposed works and study the topography of the area. The Board will not, however, after acceptance of a ' contract rate, pay any extra charges, for lead or for any other reason in case the contractor, is found later on to have misjudged the materials available or routes of transport. Attention of the contractor is directed to Standard Preliminary Specifications regarding payment of seigniorage, tools etc. Relying on the above clauses it is contended that the plaintiffs having entered into an agreement with open eyes cannot claim extra charge for the extra lead. There is no merit in this contention. We have already referred to Clause 3 which provides expressly that sand should be collected only from the approved quarries at Periyar River near Chinnamanur whereby the plaintiffs are prevented from collecting from any other quarry. When the plaintiffs acted pursuant to the said clause and broughts and from Periyar River it was found to be unsuitable for the work. Hence the second defendant rejected the same and directed the plaintiffs to collect sand from other quarries. It is not the case of the defendants that the plaintiffs did not collect sand at Periyar River near Chinnamanur; nor is it their case that there were other places in Chinnamanur itself from which plaintiffs could have collected suitable sand. D.W. 1 has been specifically asked about it and he expressed his ignorance as to the same. It is better to refer to the relevant question and answer:
Hence, the direction given by the second defendant to plaintiffs to collect sand from other quarries was certainly with a view to continue the work with suitable sand of required quality and not to stop the same because the required quality was not available from Chinnamanur quarries. Even if the second defendant had acted beyond his powers in giving such a direction it is certainly binding on the defendants as it has been given in the larger interests of the defendants. The plaintiffs are certainly entitled to claim the cost for bringing sand from such distant quarries, on the basis of the principle embodied in Section 70 of the Contract Act. The plaintiffs never intended to transport sand from a distant quarry on any concessional rate or free of costs. When the contract was entered into the plaintiffs submitted the tender on the basis that sand could be brought from Chinnamanur quarry. They worked out the cost only on that basis. When it was found that it was not possible to give effect to that part of the contract and when the Officer-in-charge of the Works authorised the plaintiffs to bring sand from other approved quarries in order to continue and complete the work the plaintiffs were justified in law to insist upon payment of the additional cost involved by complying with the directions given by the second defendant.
12. Reliance is rightly placed by learned Counsel for the plaintiffs on Section 70 of the Contract Act, which is in the following terms:
Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.
The defendants having had the benefit of the plaintiffs' transporting sand from the newly approved quarries and continuance of their work, are bound in law to pay the extra cost incurred thereby.
13. Learned Counsel has drawn our attention to the judgment of the Supreme Court in Subramanyam v. Thayappa . The relevant passage in the judgment is as follows:
If a party to a contract has rendered service to the other not intending to do so gratuitously and the other person has obtained some benefit, the former is entitled to compensation for the value of the services rendered by him. Evidently, the respondent made additional constructions to the building and they were not done gratuitously. He was therefore entitled to receive compensation for the work done which was not covered by the agreement. The respondent claimed under an oral agreement compensation at prevailing market rates for work done by him: even if he failed to prove an express agreement in that behalf, the court may still award him compensation under Section 70 of the Contract Act.(Vide para. 5)
14. A Division Bench of this Court has considered the question in Madasami Nadar v. Virudhunagar Municipality , and stated the law thus:
From the foregoing discussion, it is clear that in order to rest a claim under Section 70 of the Contract Act there need not be a pre-existing legal obligation on the part of the claimant to supply or to serve. So long as it is not an officious overbearance on the part of the plaintiff to intermeddle and cause the supply to be made or cause the work to be done, he can claim compensation provided he did make supply or did the work not intending to do so or supply so, gratuitously. It is fairly clear that the plaintiff bona fide acted with the genuine intention of supplying the goods or doing the work, then if it is not intended to be a free or gratuitous act, he is bound to be compensated by the other party for such an overt but sincere act done by the initiating party should not go a waste since the party against whom compensation is claimed did have the benefit of the supply of the goods or the performance of the work. So long as the act is not illegal the jurisdiction of the Court to grant relief is always available so as to avoid unjust enrichment and also on the basis of an implied forging of a quasi contract between the two parties. (vide para. 8).
Hence, we reject the first contention of learned Counsel for the defendants.
15. The second contention relates to the alleged errors in the distance from the quarry site to the Dam site as stated by the plaintiffs. According to learned Counsel the particulars given in the plaint and the annexure thereto are erroneous. There is no substance in this contention. The distances are admitted in the written statement itself and in paragraph 12 they are set out clearly. We have already referred to the same. P.W. 1 has in his evidence referred to the distance. There is no question in the cross examination of P.W. 1 that the distances mentioned by him are not correct. D.W. 1 expressed ignorance as to the distances. Thus there is no evidence on record to support the contention of learned Counsel for the defendants raised probably for the first time in this Court that the particulars of distances mentioned in the plaint schedule are erroneous.
16. It is also contended by learned Counsel that sand was collected only from a quarry at a distance of 48 Kms. This contention goes against the admission made by D.W. 1 that the plaintiffs collected sand from Boothipuram. Paragraph 12 of the written statement mentions the distance from Boothipuram as 60 Kms, Hence this contention is rejected.
17. The third contention relates to the rates claimed by the plaintiffs. Here again the defendants have not chosen to let in any evidence whatever, as to the rates which prevailed in 1974-75 or 1975-76. Apart from merely stating that the rates which prevailed in the latter years were not applicable and the rates which prevailed in 1973-74 were alone applicable, learned Counsel has not been able to point out to us any relevant material in this regard. No question was put to P.W.1 as to the rates which prevailed in 1973-74 nor has D.W. 1 spoken about the same. In fact, he has admitted that he does not know the rates. P.W. 1 has in his evidence not only mentioned the distance but also the rates claimed and the difference in the cost incurred. Nothing has been elicited in cross-examination to discredit the same. D.W. 1 has in his chief-examination stated that the additional cost incurred by bringing sand from Lakshmipuram was only Rs. 26,896. He has not explained as to how it was worked out. The written statement also mentions the same figure and gives the rate as Rs. 3.95 per Cubic metre. But no evidence has been produced in support thereof. D.W. 1 has stated that there is a schedule of rates for transportation of sand and he admitted that he cannot say whether the rates mentioned in the plaint are right or wrong. In the circumstances, we have no option but to reject the contention of learned Counsel for the defendants on the question of rates.
18. The last contention is that the suit is barred by limitation. According to learned Counsel the plaintiffs completed the work on 24.5.1978. It is stated in the written statement and repeated by D.W. 1. P.W. 1 has categorically stated that the work was stopped in December, 1978. In the cross examination he has repeated the same and he has denied the suggestion that he worked only upto 24.5.1978. D. W. 1 has been cross examined by the plaintiffs as to his knowledge of the completion of the work. He says The statement is tell-tale and it need not be added that he does not know anything about the case. In answer to the next question he has stated that he does not remember whether he went to the Dam site in 1979.
19. Learned Counsel for the defendants contends that Article 18 of the present Limitation Act is the relevant one. Under that article for a suit for the price of work done by the plaintiff for the defendant at his request where no time has been fixed for payment the period of limitation is three years from the date on which the work is done. The evidence of the second plaintiff as P.W. 1 that he was doing work till December, 1978 is acceptable as there is no evidence to the contrary. There is no explanation on the part of the defendants for not examining any of the Engineers who were in-charge of the work but only an Accountant in the office in Madurai who did not know anything personally about the work. Hence, the suit is within three years from the date on which the work is done and it is within the time.
20. Learned Counsel for the plaintiff contends that the relevant article is not Article 18, but only Article 113 of the present Limitation Act. The said Article is the residuary Article and any suit for which no period of limitation is provided elsewhere in the Schedule falls under the same and the period of limitation is three years from the date when the right to sue accrues. Reliance is placed on the judgment of the Supreme Court in Gannon Dunkerley and Company v. Union of India . There, the scope of Articles 56,115 and 120 of the old Limitation Act, 1908 corresponding to Articles 18, 55 and 113 of the present Act has been discussed. The Court held that the suit in that case was governed by Article 120 and not barred by limitation. The relevant facts in that case were: The appellant Company had undertaken under the terms of the contract to do specific construction work for the Union of India at "basic rates". The Engineer-in-charge was by the terms of the agreement competent to give instructions for work not covered by the terms of the contract and remuneration was to be paid at the rate fixed by the Engineer-in-charge for such additional work. The appellant Company made a claim in a suit filed by it for payment at an additional rate over the stipulated rate in view of the change in circumstances in respect of the additional work done at the request of the Engineer-in-charge. The suit was filed beyond 3 years of the date on which the work was done. The Court held that Article 56 of the old Act corresponding to the present Article 18 was not applicable as the claim was not for price of work done but for enhanced rates in view of altered circumstances. It was held that it was not a suit for compensation for breach of contract and the residuary Article 115 (present Article 120) was alone applicable. Under that Article the period of limitation was six years from the date on which the right to sue accrued. There is considerable force in the contention of learned Counsel for the plaintiffs, that the present suit will be governed by Article 113 of the Limitation Act.
21. Learned Counsel also draws our attention to the judgment of the Allahabad High Court in State of U.P. v. Chandra Gupta and Company . That was a case of a suit for recovery of amount for extra work done after the claim was rejected. The court held that the suit was governed by Article l 15 of the old Limitation Act and not by Article 56 thereof. It is not necessary for us to consider whether the present case would fall under Article 55 corresponding to Article 115 of the old Act. We hold that the suit is not barred by limitation.
22. There is no error in the decree passed by the trial court. Though, the plaintiffs claimed in the plaint a sum of Rs. 1,00,119.75 they filed a memo of calculation in the trial court after the judgment as directed by the Court. In the schedule to the plaint the total quantity of sand consumed was mentioned as 7294.8 cubic metre. That was obviously an error caused by arithmetical mistake in dividing 6079.50 by 2.5 and multiplying the quotient by 2.8 (6079.50 x 2.8). The figure should be 6809 cubic metre. That was pointed out in the written statement as well as the evidence. On that basis a memo of calculation was filed after the judgment as stated above. As per the said memo of calculation the principal amount due to the plaintiffs was Rs. 86,814.75 and interest thereon at 12 per cent per annum for 8 months and 14 days was Rs. 7,379. The total amount was Rs. 94,193.75. The trial Court ought to have passed a decree only for the said amount of Rs. 94,193.75. Inadvertently the figure mentioned in the calculation memo was overlooked and a decree has been passed for Rs. 1,00,119.75 with subsequent interest on Rs. 92,279.22 at 12 per cent per annum from the date of plaint, ie. 1.9.1981 till date of payment Hence, the decree of the trial court should be modified and the defendants should be directed to pay to the plaintiffs, a sum of Rs. 94,193.75 with interest on Rs. 86,814.75 at 6 per cent per annum from the date of plaint, i.e. 1.9.1981 till the realisation of the decree amount. But for the above modification the judgment and decree of the Court below are unassailable.
23. In the result, the appeal is partly allowed and the decree of the trial court is modified as indicated above. In other respects the decree of the trial court is confirmed and the appeal is dismissed. The appellants-defendants 1 to 4 shall pay proportionate costs to respondents 1 & 2 (plaintiffs) in the appeal.