Bangalore District Court
M.Keshava Raju vs Government Of Karnataka on 25 October, 2019
IN THE COURT OF THE LXXXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU CITY[CCH-84]
PRESENT: Sri S.A. HIDAYATHULLA SHARIFF,
B.A., LL.M.,
LXXXIII Additional City Civil and
Sessions Judge
Dated this the 25th day of October 2019
COM.O.S.No.23/2019
(O.S.No.10/2018 & OS 45/2017)
PLAINTIFF: M.Keshava Raju, aged about 66
years, S/o late M. Narayana Raju,
Engineering Contractor, No.7, I.T.I
Layout, R.M.V. II Stage, Bangalore
560094.
[By Sri.KMM/PHR, Advocate]
/v e r s u s/
DEFENDANTS: Government of Karnataka, Public
Works Department.
Represented by its
1. The Secretary,
Public Works Department,
Government of Karnataka,
3rd Floor, Vikasa Soudha,
Bangalore560001.
2. The Chief Engineer (C&B) South,
K.R.Circle, P.W.D,
Bangalore560001.
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3. The Executive Engineer,
P.W.D. Division, Chikkaballapur,
Chikkaballapur District.
[By District Government Pleader]
Date of institution of the : 26/02/2019(04/2/2017)
suit
Nature of the suit : Recovery of money
Date of commencement of : 30/10/2017
recording of the evidence
Date on which the : 25/10/2019
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
02 08 21
(S.A. Hidayathulla Shariff)
LXXXIII ACC & SJ: Bengaluru
Plaintiff has filed this suit against defendants for
recovery of money. This suit was originally filed before
the II Addl. Senior Civil Judge & JMFC, Chikkaballapur
and suit was numbered as OS No.45/2017. Thereafter,
the suit was transferred to I Addl. District & Sessions
Judge, Chikkaballapur and numbered as OS No.
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10/2018. After establishment of this court to try
commercial disputes, on the point of territorial
jurisdiction, the suit is transferred to this court and it
was renumbered as Commercial OS No.23/2019.
2. The case of the plaintiff in brief is that he is a
Class I contractor having experience in contract works.
He submitted tender in response to the tender
notification issued by the Government of Karnataka for
the work of "Construction of Mini Vidhana Soudha at
Sidlaghatta, Kolar District" presently Chikkaballapur
District. He being the lowest tenderer was awarded the
above mentioned construction work vide Agreement
No.10/9394 dated 11/8/1993. The cost of the work
under the above mentioned tender was Rs.42,91,526/.
The 3rd defendant Executive Engineer, PWD Division,
Kolar has issued work order on 24/8/1993. As per the
terms of the contract, the monthly stipulated progress
was Rs.2,14,576/. As per the work order the date of
commencement of the work was 19/8/1993 and the date
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of completion was 15/11/1995, including monsoon
period. The contract contains schedule of quantities in
which rates for each of various individual items of work
are entered in Schedule B along with a copy of
agreement, the letter of acceptance, work order etc. with
the detailed technical specifications, with the conditions
of contract agreement.
3. It is further case of the plaintiff that immediately
after receiving the work order, he started the work in
portion of the site made available by the Assistant
Executive Engineer. He has mobilized the resources
including men, machinery, establishment and other
matching equipments and camped at site to execute the
work. The site was not clear as the electric and
telephone lines were obstructing the work. A minor
portion of the work was executed for some period as long
as clear site was available and there was stoppage of
work for a major period during the stipulated period of
performance of the contract. Immediately after the mark
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out given by the subdivisional officers, he started the
work and completed the excavation for foundation by
30/9/1993 as per the excavation plan and mark out
given by the defendant. He continued the stay at work
site with the establishment for the purpose of executing
the work in the stipulated and prolonged period upto
March 1999, but could not complete the work in all
respects due to reasons stated in the following paras.
4. The construction of buildings of any magnitude
requires detailed approved working drawings showing the
details of foundations, basement, superstructures with
all items. The defendant failed to supply these drawings,
designs and details in time. The defendant was not in a
position to supply the working drawings at a time along
with the work order. The designs/drawings for RCC
foundations were supplied only in the month of
November 1993 with a delay of 3 months for foundation.
The drawings for basement were issued only on
30/10/1994 with a delay of 14 months. The drawings for
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ground floor roof beams and slab were issued to him only
on 29/12/1995 with a delay of about 28 months after
commencement of the work. Until the expiry of the
original contract period the defendant was not in a
position to issue full working drawings for all the items
even for ground floor where as the contract consists of
ground floor and first floor. Inspite of abnormal delay in
supply of work working drawings, the defendant has not
fixed any further period of performance of the contract.
He has brought all the delays to the knowledge of the
defendant at several times as and when occurred in his
several letters dated 16/2/1995, 27/7/1995,
30/10/1995, 5/11/1996, 16/4/1997, 4/9/1998,
5/10/1998, 14/10/1998 and 25/11/1998. The delay on
the part of defendants in supplying the full working
drawings has caused abnormal delay in executing the
work and has also resulted in huge loss to him.
5. It is further case of the plaintiff that high tension
electric lines, telephone lines fixed were crisscrossing the
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work site. There was a Municipal Water Supply line
passing through below the ground level of the site. It was
very difficult to execute even the foundation as the
municipal underground water supply lines were not
shifted. There were major obstructions in the site due to
high tension electrical line which was crossing in the
middle of the site and posing danger to the labourers.
This fact of delays were brought to the knowledge of the
defendant through letters dated 25/11/1993,
11/5/1994, 10/6/1994, 24/10/1994, 4/1/1995 and
19/10/1995. There was abnormal delay in making the
site clear by removing the high tension electric line,
telephone line and municipal water supply line. The high
tension line was shifted only during September 1994. It
was not possible to fabricate the steel for columns below
the high tension electric line. The basement work cannot
be executed without removal of the high tension electrical
line. The delay in not shifting of the high tension
electrical line has caused stoppage of work.
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6.It is further case of the plaintiff that the essential
building materials were not available at a reasonable
distance. He had to go in search of the building
materials since the same were not available at the
distance shown by the defendant at the time of
tendering. This caused further delay in executing the
work with incurring extra cost and required much more
investments by him.
7. It is further case of the plaintiff that the interim
payments for the work done were very irregular. The
contract agreement provided payment for the work done
in each month. There were inordinate delay in preparing
and payment of the bills. In some occasions, the
defendant took 6 to 8 months for making one running bill
payment. This created unbalanced working conditions
and delayed the completion of the work. Even at the time
of canceling the contract, there were substantial pending
payments. The delay in making payments was brought
to the knowledge of the defendants through letter dated
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10/6/1994, 16/2/1995, 27/7/1995, 15/2/1996 and
4/9/1998.
8. It is further case of the plaintiff that inspite of
above mentioned impediments, he continued the
execution of the work under most trying circumstances.
He was executing the work to the possible extent and
kept ready the same establishment made at site to
execute and complete the work. In the mean time, the
defendant has illegally canceled the contract with a
threat to execute the balance work at plaintiff risk and
cost though the delays attributable to the defendant. The
defendant has not even fix further period for performance
of the contract to make the time essence of the contract
after expiry of the period of contract on 15/11/1995.
Inspite of his repeated requests for extension of time,
before expiry of original contract period, the defendant
has illegally canceled the contract without fixing period
for extension of contract. The final bills are not yet
prepared and final account pertaining to the contract are
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yet to be settled by the defendants. The defendants have
committed breach of contract.
9. It is further case of the plaintiff that after
cancellation of the contract, he has given a consolidated
claims letter dated 5/9/2002 to the 3 rd defendant for
settlement as per clause 29 of the conditions of the
contract. As there was no reply to the above letter, he
approached the defendant by letter dated 7/11/2002 for
settlement as per the conditions of the contract. Even
the 2nd defendant has not replied the said letter for
settlement of claims. Thereafter, he has approached the
Hon'ble High Court of Karnataka by filing CMP
No.47/2003 for appointment for arbitrator as per the
conditions of the contract. The Hon'ble High Court of
Karnataka by its order dated 11/7/2003 has rejected the
above mentioned CMP on the ground that clause 29 of
the contract is not an arbitration clause. Aggrieved by
the order dated 11/7/2003 passed by the Hon'ble High
Court of Karnataka, he has filed WP No.40896/2003 for
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appointment of arbitrator and the said writ petition was
also dismissed on 6/11/2003. Aggrieved by the above
mentioned order, he has approached the Hon'ble
Supreme Court of India by filing SLP in Civil Appeal
No.1558/2004 for appointment of arbitrator. The Apex
Court of the Land by its order dated 25/10/2013 held
that clause 29 of the contract is not an arbitration clause
and has given liberty to him to recover the dues through
legal remedy. Further he has filed review petition against
the common judgment passed in SLP No.1586/2004
before the Apex Court of the Land and the said review
petition also came to be dismissed on 16/9/2014.
10. It is further case of the plaintiff that in
connection with breach of contract dated 11/8/1993 by
the defendants, following claims have arisen to him,
which he has sought for settlement in the present suit.
11. Claim I : to declare that the cancellation of
contract is illegal and wrongful and to desist from
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applying cost and risk action of completing the
balance work and entitled for damages.
With regard to above mentioned claim No.1, it is the
case of the plaintiff that the stipulated period of contract
expires on 15/11/1995, as per the terms of contract.
Inspite of several delays and defaults committed by the
defendant, he continued the execution of the work even
beyond the stipulated period. The defendant also
accepted and permitted him to complete the execution of
work. Delay in completion of work is not attributable to
him. His repeated requests for grant of extension of time
were not considered by the defendants. The defendants
have not disputed the claims at the time of execution of
the work beyond statutory period of time and allowed
him to continue with the work. All of a sudden the
defendant had taken illegal action of cancellation of the
contract. Had the defendant made the site clear
immediately after agreement, made proper payments,
made available required drawings in time and allowed
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him to continue the work, he would have completed the
work in a reasonable time. Without deciding the aspect
of the breach of contract, the cancellation of the contract
by defendants is illegal. Hence, the cancellation of the
contract dated 11/3/1999 by the defendant is illegal and
wrongful. Hence, defendant required to refund a sum of
Rs.1,63,470/ towards refund of EMD, FSD recovered in
bills and NSC recovered in bills and defendants are liable
to pay him a sum of Rs.3,49,825/ as interest @ 12% per
annum on the above mentioned amount and liable to pay
him totally a sum of Rs.5,13,295/ towards the claim
No.1.
12. Claim 2 : Payment of damages of idle charges
of men and machinery suffered.
With regard to the above mentioned second claim,
it is the case of the plaintiff that the execution of the
work was stopped on several occasions for want of design
details and due to obstructions at work site, lack of
payments. The total period of stoppage was 339 days,
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during the period of execution of work from
commencement of work to the cancellation of contract
due to various defaults and breaches committed by the
defendant, he has suffered damages in the form of idle
charges of men and machinery, due to the default
committed by the defendant, which resulted in stoppage
of work. The stoppage of work was intimated to the
defendant by letter dated 10/6/1994, 24/10/1994,
4/1/1995 and 16/2/1995. He has kept separate men
and machinery for the performance of the work
pertaining to contract in dispute. He has no chance to
mitigate the damages suffered during the idle period and
there was no other opportunity to utilize the
establishment made at this work and was always ready
at work site for instruction of the defendant to execute
the work. The idle charges per day works out to
Rs.3,600/ including labours and machinery. The
defendant required to compensate him for the idle
charges @ Rs.3,600/ per day for 339 days, which
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amounts to Rs.12,20,400/. Defendant required him to
pay a sum of Rs.31,60,836/ as interest @ 12% per
annum on the above mentioned amount. With regard to
claim 2 the defendant required to pay him a total sum of
Rs.43,81,236/ as payment of damages of idle charges of
men and machinery suffered by him.
13. Claim 3 : Payment of equitable revised rates
for the work done beyond the stipulated period of
contract.
With regard to above mentioned claim No.3,
plaintiff has stated that the period of performance was
prolonged beyond the stipulated date of completion due
to several defaults and breach of contract committed by
the defendants. Consequently, he was forced to execute
the work in the prolonged period beyond the stipulated
period of completion, facing the burnt of all around
increase in the market prices during the period. There is
no justice in insisting him to do the contract at tendered
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rates, since the delay in completing the work was not at
all attributable to him. He is entitled for payment of
equitable revised rates for the work done beyond the
stipulated period taking into consideration of the
changed market conditions and circumstances under
which the work was executed. The defendants are
required to pay equitable revised rates for the quantities
of work executed beyond the stipulated date of
completion of 15/11/1995. Plaintiff has claimed a sum
of Rs.14,84,424/ towards equitable revised rates for the
work done beyond the stipulated period of contract and
also sought for a sum of Rs.31,76,667/ as interest on
the above mentioned amount at 12% per annum from
11/3/1999 upto 2/2/2017, totally amounting to
Rs.46,61,091/.
15. Claim 4 : reimbursement of expenses for
longer stay at the work site for the purpose of
executing the work.
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With regard to above claim 4, it is the case of the
plaintiff that delay in completion of the work is only
attributable to the defendants and the execution of the
work beyond the stipulated date of completion has
resulted in incurring extra expenditure on additional
monthly overhead charges by him. He had taken 10% of
the cost of work at his quoted rates viaaviz stipulated
period of contract as the cost of overhead charges to meet
the overheads both at head office and site office which
included payment towards managerial, consultancy, legal
advise, engineering, supervision, accounts, stores and
traveling. The overhead charges are fixed in each and
every month and will not increase or decrease in
proportion to the quantum of work executed in each
month. The establishment engaged on the works cannot
be retrenched or reduced till the completion of the work.
Hence, the expenditure on monthly overheads continued
from the date of contract period from 15/11/1995 till the
cancellation of the contract on 11/3/1999. The plaintiff
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has claimed a sum of Rs.7,22,357/ towards
reimbursement of expenses for longer stay at the work
site and also claimed a sum of Rs.15,45,844/ as interest
on the above mentioned amount from 11/3/1999 upto
2/2/2017 @ 12% per annum. Plaintiff has totally
claimed a sum of Rs.22,68,201/ towards this claim
No.4.
16. Claim 5 : Loss of profit on the balance work.
With regard to the above mentioned claim No.5 is
concerned, it is the case of the plaintiff that the work was
entrusted to him at his tender rate with tender cost of
Rs.42,91,526/. Since the defendants failed in fulfilling
their contractual obligations, such as, supply of working
drawings in time, making site clear by removing the
municipal underground water lines, removing the high
tension electrical lines and telephone lines, the work was
prolonged beyond contract period and could not be
completed within time. The defendants without fulfilling
their contractual obligations have chosen to cancel the
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contract on 11/3/1999 for no fault of the plaintiff. With
great difficulties he had achieved progress of
Rs.17,83,296/ out of the tender value of
Rs.42,91,526/. The balance of the cost of work was
Rs.25,08,230/. Even in the achieved progress there was
payment due to him. The defendants reserved some of
the amounts which was payable to him due to shortage
of funds which was clearly mentioned in RA bills. The
plaintiff has claimed a sum of Rs.3,76,234/ for loss of
profit on the balance cost of work and also claimed a sum
of Rs.8,05,140/ as interest on the above mentioned
amount @ 12% per annum for the period between
11/3/1999 upto 2/2/2017. On claim No.5 plaintiff has
totally claimed a sum of Rs.11,81,374/.
17. Claim 6 : Release of reserved amount in the
RA bills.
With regard to above mentioned claim No.6 is
concerned, it is the case of the plaintiff that the
defendants reserved the amounts to extent of
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Rs.79,147/ for want of funds which was clearly
mentioned in the running account bills No.8 & 9. It is
the duty of the defendants to make arrangements for the
funds for regular payments. The cause of delay in
making irregular payments also attributable to the
defendants only. With regard to claim No.6, the plaintiff
has sought for a sum of Rs.79,147/ towards the amount
payable to him in RA bills No.8 and 9 and also sought for
a sum of Rs.1,69,374/ as interest @ 12% per annum for
the period between 11/3/1999 upto 2/2/2017. On claim
No.6 plaintiff has totally claimed a sum of Rs.2,48,521/.
18. Claim 7 : Payment of interest @ 12% on all
the claims.
With regard to the above mentioned claim No.7, the
plaintiff has sought for interest @ 12% per annum on all
the amounts claimed in the present suit and sought for
future interest @ 18% per annum on the suit claim from
the date of the suit to the date of payment. It is further
case of the plaintiff that the claim amount quantified by
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him is valid, legitimate and he is entitle for the same in
terms of the agreement conditions and the
correspondences from the time of awarding the contract
till its cancellation of work and thereafter. That he has
issued a legal notice to the defendants under Section 80
of CPC for settlement of claims vide letter dated
19/12/2014 and defendants have not taken any action
even after the decision of Apex Court of the Land for
settlement of the claim raised by him. Plaintiff further
contended that this court is having territorial jurisdiction
to try the suit and the suit is filed within the period of
limitation. On these grounds, the plaintiff has sought for
recovery of a sum of Rs.1,32,53,718/ from the
defendants towards the amount of claim made by him
with respect to contract No.10/9394 dated 11/8/1993
together with costs and future interest @ 18% per annum
from the date of filing of the suit till the date of realization
of the amount.
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19. In response to the suit summons, the
defendants No.1 to 3 have contested the suit by filing
their joint written statement. The defendants in their
written statement have contended that the suit of the
plaintiff is not maintainable either in law or on facts and
same is liable to be dismissed. Defendants further
contended that the plaintiff has filed a false, frivolous and
vexatious suit against them with a malafide intention of
harassing them. The suit of the plaintiff is speculative in
nature and misconceived one and liable to be dismissed.
Plaintiff has not properly instituted the suit as required
U/S.79(b) and Section 80(i)(c) of CPC.
20. Defendants further contended that the suit
claim of the plaintiff is hypothetical and illogical. The
plaintiff has caused substantial delay of 4 years in
constructing the building, as such, he could not claim
the overhead charges, labour charges, establishment and
maintenance of labourers and machinery. Due to poor
performance in construction activity and financial
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activity, the contract was terminated by them. Since the
plaintiff has failed to discharge the terms and conditions
of the agreement, he is not entitle for any relief sought
for.
21. The defendants in the written statement have
not disputed the fact that the plaintiff was a class I
contractor and he being the lowest tenderer, he was
awarded the work of construction of Mini Vidhana
Soudha at Sidlaghatta vide contract agreement
No.10/9394 dated 11/8/1993. The defendants have
also not disputed the plaint averments with regard to
cost of the contract work, date of issuance of work order,
date of commencement of the work and date of
completion of the work stipulated in the above mentioned
contract. The defendants have denied the plaint averment
that final bill of the contract has not been prepared. The
defendants have contended that plaintiff has not come
forward to put his signature and received the same. The
defendants have denied the plaint averments that the
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plaintiff has started the construction work immediately
after receiving the work order in a portion of the site
made available to him and in the portion which was
cleared without any obstruction. The defendants further
contended that the plaintiff has not started his work after
receipt of the work order and he has delayed the to
commencement of the work at site. The defendants have
also denied the plaint averments with regard to
mobilization of the resources and camping of the plaintiff
at the site to execute the work and also denied the
averments that the site was not cleared as the electric
and telephone lines obstructing the work. The
defendants have also denied the plaint averments that
since the electric and telephone lines were not shifted,
there was stoppage of construction work for a major
period during the stipulated period of performance.
Defendants further contended that the plaintiff has not
complied the terms of the agreement dated 11/8/1993.
When the site was handed over to the plaintiff, they have
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remitted a sum of Rs.9,893/ vide cheque No.965438 dt.
14/6/1993 to shift the electric lines and poles and also
sum of Rs.8,192/ was transferred to BSNL account vide
M.B.No.5572 shift the telephone lines and poles. After
receipt of the said sum by the above departments, they
have shifted the poles and lines from the site. There was
no obstructions for commencement of the work by the
plaintiff and there is no latches on the part of the
defendants.
22. The defendants in their written statement have
also denied the plaint allegations with regard to the
alleged reasons shown by the plaintiff for non completion
of the work within the stipulated period of time. The
defendants have denied the plaint allegations that there
was delay by the defendants in supply of approved
working drawings, which resulted in non completion of
the work in the contract period. Defendants further
contended that as per letter dated 7/4/1993 the
approved structural drawings were given to the plaintiff
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and plaintiff has suppressed the same. Defendants
further contended that as per the request of the plaintiff
made through letter dated 11/5/1994, the AEE, PWD
South Division, Chikkaballapur has caused a letter dated
26/10/1994 to the plaintiff asking him to collect the
required drawings in connection with the construction
work. The defendants further contended that though
they have supplied the required drawings to the plaintiff,
plaintiff is trying to extract money from them through
illegal mode. Defendants further contended that the
plaintiff received drawing for foundation on 7/4/1993
and entire drawings upto the floor, ceiling, beam, canopy
columns and beams on 26/10/1994, but he has
achieved progress of only Rs.6,25,420/ as on
23/3/1994 to the target progress of Rs.23,54,500/, as
per the terms of the agreement.
23. The defendants in the written statement have
also denied the plaint allegations with regard to non
shifting of high tension electric line, telephone line and
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Municipal water line from the site made against them as
reason for delay in construction work. Defendants
further contended that they have given respective
amount to the concerned department for shifting of
electric lines and telephone lines on 14/6/1993 and
inspite of it, the plaintiff has made false allegation
against them. Defendants have further contended that
inspite of shifting of electricity lines and telephone lines,
the plaintiff had given financial implications of only
Rs.6,25,420/ as on 23/3/1994 instead of
Rs.23,54,000/, as per the tender agreement.
Defendants further contended that the plaintiff has given
unwanted reasons to execute the work and he has
commenced the work in the month of November 1993
and there was no delay for payment. Under clause 15(c)
of the schedule form, they have never given direction to
stop the work, plaintiff has not deployed his labourers at
the site.
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24. The defendants have also denied the plaint
allegations that non availability of essential building
material at a reasonable distance as one of the reason for
delay in construction work. Defendants further
contended that the plaintiff being class I contractor has
to look after the supply of building materials and he
cannot depend upon the defendants for collecting the
building material to complete the tender work. The
defendants have also denied the plaint allegations that
they were irregular in payment for the work done by the
plaintiff. Defendants further contended that the amount
for the work done by the plaintiff has been disbursed to
him as per the allocation of funds made by the
government. There was no any inordinate delay in
preparing the bills on their side. Defendants have also
denied the plaint allegations that even at the time of
canceling the contract there was substantial pending
payment to the plaintiff. The defendant further
contended that as on the date of cancellation of work,
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plaintiff had received a sum of Rs.17,40,149/ on
19/2/1999. Such being the case, the question of delay
in payment to the plaintiff by them will not arise.
25. The defendants in the written statement have
also denied the plaint allegations that inspite of severe
impediments, the plaintiff was executing the work under
most trying circumstances and defendants have illegally
canceled the contract with a threat to execute the
balance work at plaintiff's risk and cost. The defendants
have also denied the plaint allegations with regard to
breach of contract made against them. Defendants
further contended that they have caused a notice to the
plaintiff on 22/11/2002 by objecting the illegal acts of
the plaintiff. The plaintiff on one or other way trying to
put them into trouble to gain unlawful means at their
cost. The plaintiff himself has caused delay of about 4
years in executing the work, impliedly they have allowed
the plaintiff to work till 11/3/1999. Actually the term
fixed for completion of the work as per the agreement was
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on 15/11/1995. There is no breach of contract on their
part. On the other hand the plaintiff has failed to comply
the terms and conditions of the contract and he has
failed to achieve the stipulated financial progress in
terms of the contract.
26. The defendants in the written statement have
admitted about the receipt of notice on 5/9/2002 and on
7/11/2002 from the plaintiff and further contended that
they have suitably relied the said notice. The defendants
have also admitted the proceedings between the plaintiff
and defendants that took place before the Hon'ble High
Court of Karnataka and Hon'ble Supreme Court of India
and the orders passed in the said proceedings.
27. The defendants in the written statement have
denied the claim No.1 of the plaintiff seeking cancellation
of contract as illegal and desisting them from applying
risk and cost action of completing the balanced work and
for payment of damages to the plaintiff. Defendants
further contended that the plaintiff making false
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allegation against them to over come from the action to
be taken by them against him for causing loss and
inconvenience to the public at large. The plaintiff has no
right to make claim against them under the law. They
have not taken any illegal action against the plaintiff in
canceling the contract. There was no delay on their side
in clearing the site for executing the work and there is no
delay in payment. Plaintiff himself caused inordinate
delay in executing the tendered work and caused loss to
the state. They have supplied the required drawings to
the plaintiff on time to time and they have made
payments to the plaintiff on the bills prepared and filed
by him. Since the plaintiff has failed to complete the
work within stipulated period as per clause 3(b) & (c) of
the schedule Tender, they have canceled the contract on
cost and risk basis and have forfeited the security deposit
to the government. Since they have canceled the
contract in terms of the contract and forfeited the
security deposit, the question of considering the claim
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made by plaintiff for a sum of Rs.1,63,470/ together
with interest will not arise. Defendants further
contended that there was no contractual obligations on
their part of pay 12% interest. Once the forfeit clause is
opened by them, the question of considering the claim of
the plaintiff will not arise.
28. With regard to the second claim of the plaintiff
pertaining to payment of idle charges of men and
machinery suffered by him, defendants have contended
that since there was no stoppage of work by them at any
stage during subsistence of contract, plaintiff cannot
make any claim for compensation as per clause 15 of the
schedule of contract form. They reserves the right to take
action against plaintiff for the delay in execution of the
work. The plaintiff has not maintained the men and
machineries in the site during the subsistence of
contract. There is no default and breaches committed by
them. Plaintiff unnecessarily making false allegations
against them. The claim of plaintiff for a sum of
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Rs.43,81,236 as damages for idle charges of men and
machineries is an imaginary claim. At no point of time
the plaintiff has not shown the idle of men and
machinery at the site during the subsistence of
agreement. Plaintiff has not made any representation in
this regard. Plaintiff has not produced a single piece of
document to substantiate the above mentioned claim.
Plaintiff has not used any machinery for doing the work
at site.
29. With regard to claim 3 of the plaintiff pertaining
to payment of equitable revised rates for the work done
beyond the stipulated period of contract is concerned, the
defendants have contended that there is no legal base for
the plaintiff to make said claim. Plaintiff has not
produced any document to substantiate the said claim
and there is no provision under the contract for payment
of interest @ 12% per annum. The vouchers produced by
the plaintiff are all self serving documents. At no point of
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time, the plaintiff has produced any single voucher before
them certifying the said amount.
30. With regard to claim No.4 pertaining to
reimbursement of expenses for longer stay at the work
site for the purpose of executing the work claim made by
the plaintiff, the defendants have contended that the said
calculation made by the plaintiff is self serving one and
not based on any document and only on assumption the
plaintiff has calculated the amount and he is not entitle
for the said relief. Defendants have further contended
that since the plaintiff has failed to reach the monthly
progress of the tender work prescribed under the
contract, plaintiff is not entitle for the said claim. The
plaintiff has not engaged any man power near the
building very long time. Hence this claim of plaintiff is
liable to be rejected.
31. With regard to claim 5 of the plaintiff pertaining
to loss of profit on the balance work is concerned, the
defendants have contended that the plaintiff had
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achieved the financial progress of Rs.17,04,149/ instead
of stipulated progress of Rs.42,91,526/ in the contract.
Since the plaintiff has failed to achieve physical and
financial progress in terms of the contract is not entitle
for any claim pertaining to loss of profit on the balance
work sought for by him.
32. With regard to claim No.6 of the plaintiff
pertaining to release of reserved amount in RA bills is
concerned, the defendants have contended that a sum of
Rs.79,147/ was paid to the plaintiff after release of letter
of credit from the government and the bill was passed on
30/8/1997, as such, there is no dues by the defendants
to pay towards the plaintiff and hence plaintiff is not
entitle for the said claim.
33. With regard claim No.7 of the plaintiff pertaining
to payment of interest @ 12% per annum on all the
claims is concerned, defendants have contended that
since there is no contractual obligations with regard to
36
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the interest, plaintiff is not entitle for payment of interest
@ 12% per annum on all the claim sought for by him.
34. Defendants in their written statement have
further contended that they are government authorities
and they are discharging their duties under the public
works department as per the statutory norms and
guidelines issued by the government, they are engaging
the civil work through out the state as and when
government called for. Since the plaintiff has quoted
lowest rate in his tender pertaining to construction of
Mini Vidhana Soudha at Sidlaghatta, he was awarded the
above mentioned construction work in terms of contract
agreement No.10/9394 dated 11/8/1993. As per the
terms of the above mentioned agreement, the
construction work should have been started on
19/8/1993 and should have been completed on or before
15/11/1995 with a monthly stipulated progress of
Rs.2,14,576/. The contractor - plaintiff has not
completed the work as per the schedule and delayed very
37
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badly. Consequently, the 2nd defendant - Chief Engineer
has canceled his contract as per the rules applicable by
his order dated 19/2/1999 and same was communicated
to the plaintiff by the 3rd defendant vide letter dated
22/11/2002. After termination of the contract, plaintiff
has written several letters to 3rd defendant, which were
replied suitably. The 3rd defendant gave a notice to the
plaintiff on 26/10/1994 to get the structural drawing.
On 23/6/1995 a letter was also issued to the plaintiff to
get the approved structural plan from the office of the
defendants on 4/1/1996. Another notice was issued to
the plaintiff to receive the drawing pertaining to the
construction. On 19/2/1999 approval was given by the
2nd defendant for cancellation of the tender. On
22/11/2002, a notice was also issued to the plaintiff by
the 3rd defendant. The notices dated 13/10/1993,
1/1/1994, 30/5/1994, 2/6/1994, 18/6/1994,
30/8/1994, 29/9/1994, 15/12/1994, 8/5/1995,
23/6/1995, 26/2/1996, 8/3/1996, 20/1/1996 &
38
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11/3/1999 issued by the 3rd defendant to the plaintiff
clearly reflects that the plaintiff has not properly
complied the terms of the tender agreement and hence he
is liable to be penalized for the delayed work at site.
35. Defendants further contended that there is no
cause of action for the plaintiff to file the present suit
against them. Defendants further contended that the
court fee paid by the plaintiff is not sufficient and suit of
the plaintiff is barred by time. On these grounds the
defendants have sought for dismissal of the suit.
36. Based on the above pleadings of the parties and
documents produced on record, this court has framed
following :
ISSUES
1) Whether the plaintiff proves that defendants have
failed to perform their part of contractual
obligations of the contract dated 11/8/1993 entered
between him and the defendants?
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2) Whether the plaintiff proves that the cancellation of
the contract dated 11/8/1993 made by defendants
on 11/3/1999, is illegal and wrongful?
3) Whether the plaintiff proves that defendants are not
entitled to apply cost and risk action of completing
the balance work of the contract against him?
4) Whether the plaintiff proves that defendants are
liable to pay him a sum of Rs.5,13,295/ towards
return of EMD, FSD & NSC made by him?
5) Whether the plaintiff proves that defendants are
liable to pay him a sum of Rs.43,81,236/ towards
payment of damages of idle charges of men and
machinery suffered by him towards stoppage period
of execution of the work in contract period?
6) Whether the plaintiff proves that defendants are
liable to pay him a sum of Rs.46,61,091/ towards
payment of equitable revised rates for the work done
beyond the stipulated period of contract?
7) Whether the plaintiff proves that defendants are
liable to pay him a sum of Rs.22,68,201/ towards
reimbursement of expenses for longer stay at the
work site for the purpose of executing the work?
8) Whether the plaintiff proves that defendants are
liable to pay him a sum of Rs.11,81,374/ for loss of
profit on the balance work of contract?
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9) Whether the plaintiff proves that defendants are
liable to pay him a sum of Rs.2,48,521/ towards
release of reserved amount in the RA Bills?
10) Whether defendants prove that suit of the
plaintiff is not properly valued for the purpose of
payment of court fees?
11) Whether defendants prove that suit of the
plaintiff is barred by limitation?
12) Whether the plaintiff is entitle for the suit
claim sought for?
13) Whether the plaintiff is entitle for the future
interest @ 18% per annum as sought for?
14) What order or decree?
37. Parties have entered into trial. In proof of the
case of the plaintiff, the plaintiff got himself examined as
PW.1 and tendered Ex.P.1 to P.19 documents in
evidence. On behalf of the defendants, initially the 3 rd
defendant - Executive Engineer of PWD Division,
Chikkaballapur District was examined as DW.1.
Thereafter, the learned ADGP has filed a memo to discard
the evidence of DW.1 on the ground that he was
41
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transferred to some other department. Thereafter, on
behalf of the defendants, the present Executive Engineer,
PWD Division, Chikkaballapur was examined as DW.2
and Ex.D.1 to D.17 documents were marked in his
evidence. On the application filed by the counsel for the
plaintiff, the defendants have produced the schedule of
contract form pertaining to Ex.P.1 contract, which
contains the terms and conditions of Ex.P.1 contract and
for the purpose of convenience of the reference of the
court, the said document is marked as Ex.P.1(a).
38. Written arguments filed on behalf of the plaintiff
and also on behalf of the defendants.
39. Perused the materials placed on record.
40. My findings on the above framed issues are as
follows:
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : In the negative.
Issue No.5 : In the negative.
Issue No.6 : In the negative.
Issue No.7 : In the negative.
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Issue No.8 : In the negative.
Issue No.9 : In the negative.
Issue No.10: In the negative.
Issue No.11: In the negative.
Issue No.12: In the negative.
Issue No.13: In the negative.
Issue No.14: As per final order for the following:
41. ISSUES No.1 & 2 : Since these two issues are
interconnected with each other, to avoid repetition of
facts and findings, both issues are taken up together for
consideration.
42. There are certain undisputed facts pertaining to
the parties to the present suit. The fact that the plaintiff
who was a Class I Contractor has submitted tender in
response to the tender notification issued by government
of Karnataka for the work of construction of Mini
Vidhana Soudha at Sidlaghatta, Kolar District. Since the
plaintiff was the lowest tenderer, he was entrusted the
above construction work vide contract No.10/9394
dated 11/8/1993 is not in dispute. Ex.P.1 if the contract
43
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dated 11/8/1993 executed between the plaintiff and
defendants. Ex.P.1(a) is the schedule of contract forms
which contains the terms of Ex.P.1 contract. Further fact
that the cost of the construction work under the contract
was Rs.42,91,526/ is also not in dispute. Further fact
that the date of commencement of the construction work
stipulated in the contract was 19/8/1993 and the
stipulated date of completion of the work was on
15/11/1995 including the monsoon period is also not in
dispute. Further fact that in the contract the monthly
stipulated progress of construction was fixed at
Rs.2,14,576/ is also not in dispute. Further fact that on
24/8/1993, the 3rd defendant Executive Engineer has
issued work order to the plaintiff is also not in dispute.
Further fact that on the allegation that the plaintiff has
failed to achieve the stipulated progress in terms of the
contract, the 2nd defendant Chief Engineer has
rescinded the contract on 19/2/1999 is also not in
dispute. Further fact that till the rescission of the
44
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contract, the plaintiff had achieved the approved work
progress of only Rs.17,58,071/ is also not in dispute.
Further fact that subsequent to the communication of
rescission of the contract, plaintiff has filed CMP
No.47/2003 before the Hon'ble High Court of Karnataka,
Bangalore for appointment of an Arbitrator in terms of
the conditions of the contract and said CMP No.47/2003
was dismissed by the Hon'ble High Court of Karnataka,
Bangalore by its order dated 11/7/2003 on the ground
that Clause 29 of the contract do not contain an
arbitration clause. Thereafter, the plaintiff has filed WP
No.49896/2003 before the Hon'ble High Court of
Karnataka, Bangalore, seeking appointment of an
arbitrator and the said writ petition also came to be
dismissed by the Hon'ble High Court of Karnataka,
Bangalore by its order dated 6/11/2003. Thereafter, the
plaintiff has filed SLP in Civil Appeal No.1558/2004
before the Hon'ble Supreme Court of India, seeking
appointment of an Arbitrator and said SLP also came to
45
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be dismissed on 25/10/2013. Further, the review
petition filed by the plaintiff against the common
judgment passed in connected SLP leave petitions were
also dismissed by the Hon'ble Supreme Court of India by
its order dated 16/9/2014 is also not in dispute. Ex.P.8
is the certified copy of the judgment passed by the
Hon'ble Supreme Court of India in Civil Appeal
No.1586/2004. Ex.P.9 is the certified copy of the order
dated 16/9/2014 passed by the Hon'ble Supreme Court
of India in Review Petition No.1984/2014 in Civil Appeal
No.1587/2004.
43. The plaintiff has filed this suit for recovery of
money against the defendants, on the allegations that
they have failed to perform their part of the contractual
obligations of the contract dated 11/8/1993 entered
between him and the defendants and rescission of the
contract dated 11/8/1993 made by the defendants on
11/3/1999 is illegal and and wrongful. Based on the
above mentioned allegations, plaintiff has sought seven
46
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claims in the present suit. On the other hand,
defendants have contested the suit by denying the plaint
allegations with regard to non performance of their part
of contractual obligations of contract dated 11/8/1993
and also denied the plaint allegations that the rescission
of contract dated 11/8/1993 made by them on
19/2/1999 is illegal and wrongful. In view of the rival
contentions taken by the parties to the suit, the burden
of proof is that plaintiff to prove that defendants have
failed to perform their part of the contractual obligations
of the contract dated 11/8/1993 and also to prove that
rescission of contract dated 11/8/1993 made by the
defendants on 19/2/1999 is illegal and wrongful.
44. A perusal of the pleadings and evidence of the
plaintiff discloses that it is the case of the plaintiff that
immediately after receiving the work order, he has started
the construction work in portion of the site made
available to him, which was clear without any
obstructions. He has mobilized the resources including
47
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men and machinery, establishment and other matching
equipments and camped at site to execute the work.
Since the site was not clear as the electric and telephone
lines were obstructing the work, he could execute a
minor portion of the work for a period of some time.
Thereafter, there was stoppage of construction for a
major period during the stipulated period of performance,
since the site was not clear from major obstructions.
45. The plaintiff has pleaded and lead evidence
stating that due to failure on the part of the defendants
to perform their part of the contractual obligations, he
could not complete the work within the stipulated period
of time stated in the contract. A perusal of the pleadings
and evidence of the plaintiff discloses that the plaintiff
has mainly highlighted the following alleged four
contractual obligations, which the defendants alleged to
have failed to perform which are the alleged reasons for
the plaintiff for non completion of the construction work
within stipulated period of contract.
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(1) delay in supply of approved working drawings.
(2) delay in shifting of hightension electric line,
telephone line and Municipal water supply lines from the
site. (3) non availability of essential building materials at
a distance shown by the defendants at the time of
tendering. (4) irregular payments for the work done by
him under the contract.
46. With regard to the first reason pertaining to the
alleged delay in supply of approved working drawings by
the defendants is concerned, it is the case of the plaintiff
that defendants have failed to supply the working
drawings, designs and details in time. The defendants
were not in a position to supply the working drawings at
a time along with the work order. The designs, drawings
for RCC foundation were supplied only in the month of
November 1993 with a delay of 3 months. The drawings
for basement were issued only on 30/10/1994 with a
delay of 14 months. The drawings for ground floor, roof,
beam and slabs were issued to him only on 25/11/1995
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with a delay of about 28 months after commencement of
the work. Until the expiry of original contract period, the
defendants were not in a position to issue full working
drawings for all the items, even for ground floor, whereas,
the contract consist of ground floor and first floor.
Inspite of abnormal delay in supply of working drawings,
the defendants have not fixed any further period for
performance of the contract. He has brought all the
details to the knowledge of the defendants through
several letters issued by him to the defendants.
47. To prove the alleged delay in supply of approved
working drawings by the defendants, the plaintiff has
mainly relied on Ex.P.5 which contains 18 letters dated
25/11/1993, 11/5/1994, 10/6/1994, 24/10/1994,
28/11/1994, 30/12/1994, 24/12/1994, 4/1/1995,
16/2/1995, 27/7/1995, 19/10/1995, 15/2/1996,
5/11/1996, 16/4/1997, 4/9/1998, 5/10/1998,
14/10/1998 and 25/11/1998, which were addressed by
him to the 3rd defendant - Executive Engineer. Plaintiff
50
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has also relied on Ex.P.18 and P.19 drawings issued by
the defendant to the plaintiff. A perusal of the above
mentioned letters discloses that in letter dated
25/11/1993 which was the earliest letter addressed by
the plaintiff to the 3rd defendant he has not stated
anything about the alleged delay in supply of approved
working drawings. However, in subsequent letters dated
11/5/1994, 10/6/1994, 24/10/1994, he has requested
the defendants to send the approved working drawings
and further stated that the construction work is held up
for want of drawings. In the letter dated 28/11/1994
addressed by the plaintiff to the defendants, he has
stated that he had received drawings from
Chikkaballapur Sub Division on 26/11/1994 and
assured that the construction work will be taken up
early. In letter dated 6/2/1995 addressed by the plaintiff
to the 3rd defendant, he had sought for supply of design
particulars and drawings from the department. In the
letter dated 30/10/1995 addressed by the plaintiff to the
51
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defendants, he has alleged that he had not received
approved drawings for the major items of roof, beam, roof
slab for the ground floor and first floor and also not
received roof drawings. In the letter dated 5/11/1996
addressed by the plaintiff to the 3rd defendant, he has
alleged that the first floor drawings were not received by
him till the date of addressing the letter and sought for
supply of detailed approved drawings for all the items of
the floor. In the letter dated 16/4/1997 addressed by the
plaintiff to the 3rd defendant, he has alleged that
approved canopy drawings and first floor drawings were
not supplied to him by the department. In letters dated
4/9/1998 and 5/10/1998 addressed by the plaintiff to
the 3rd defendant, again he has alleged that the drawings
of some of the items in ground floor itself were not
received by him from the department. In the letter dated
14/10/1998 addressed by the plaintiff to the 3 rd
defendant, he has further alleged that the department
has not supplied the designs and drawings of canopy in
52
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the ground floor and for roof, beam and roof slab in the
first floor. In the letter dated 25/11/1998 addressed by
the plaintiff to the 2nd defendant - Chief Engineer, he has
alleged that the defendants have not supplied him
designs and drawings for the first floor, inspite of his
repeated requests.
48. On the other hand, the defendants have pleaded
and lead evidence by denying the allegations of non
supply of working drawings and designs to the plaintiff in
time and the alleged inordinate delay caused in supply of
the working drawings and designs to the plaintiff. The
defendants have pleaded and lead evidence stating that
the required drawings were already given to the plaintiff
along with the work order and the approved drawings
were given after getting the signature of the competent
authority and plaintiff had made false allegations of non
supply of working drawings and designs in time only to
overcome the inordinate delay in completion of the
construction work by him. As per the request of the
53
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plaintiff's letter dated 11/5/1992, issued to the
Assistant Executive Engineer, PWD Sub Division,
Chikkaballapur, plaintiff was intimated by letter dated
26/10/1994 to collect the required drawings in
connection with the construction work. The plaintiff had
received the drawings of foundation on 7/4/1993 and
entire drawings upto the floor cill beam, canopy column
and beams on 26/10/1994.
49. In support of their defence, the defendants have
mainly relied on Ex.D.9 letter dated 26/10/1994. A
perusal of contents of Ex.D.8 letter dated 7/4/1993
issued by the 2nd defendant - Chief Engineer to the
Superintendent Engineer, PWD, Bangalore discloses that
the structural drawings No.CBS/SD/MVS/S.Ghatta/
1,2,3/ 199293 showing the details of excavation colomn
footing were supplied to the 3rd defendant - Executive
Engineer pertaining to the construction in dispute.
Ex.D.9 letter dated 26/10/1994 issued by the 3 rd
defendant - Executive Engineer, Chikkaballapur to the
54
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plaintiff discloses that by that letter, the plaintiff was
directed to go to the office of Assistant Executive
Engineer, Chikkaballapur and to collect necessary
drawings in connection of the construction work.
50. A perusal of the contents of Ex.P.1(a) schedule
of contract form discloses that clause 2(b) of the contract
provides for preparation of program of work. Clause 2(b)
of the contract provides that the time allowed for carrying
out of the work as entered in the tender shall be strictly
observed by the contractor. It shall be reckoned from the
date of handing over to the contractor not less than 75%
of the work site area comprising a contiguous block. It
provides that the work through out the stipulated period
of the contract be proceeded with all due diligence. It
provides that to ensure good progress during the
execution of the work, the contractor shall be bound to
comply with the time schedule according to the program
of execution of the work as agreed upon and enclosed to
the contract.
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51. A perusal of the materials on record discloses
that as per clause 2(b) of the schedule of contract form,
which provides for preparation of program of work, the
contractor was required to carry out the work of tender
within the stipulated period of time and to ensure good
work progress during the execution of the work and to
comply with the time schedule contractor was required to
prepare program of execution of the work. However, a
perusal of materials on record discloses that the plaintiff
has neither pleaded nor lead any evidence with regard to
the preparation of program of work pertaining to the time
schedule of supplying working drawings by the
defendants required for construction work. In the
absence of producing any program of work agreed upon
by the plaintiff and defendants pertaining to supply of the
working drawings, the contention of the plaintiff that
defendants have failed to provide him necessary working
drawings within the stipulated period of time and there is
56
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inordinate delay on the part of the defendants to furnish
the working drawings cannot be accepted.
52. A perusal of the evidence on record discloses
that in letter dated 25/11/1993, which was the first
letter addressed by the plaintiff to the 3 rd defendant
marked as one of the letter in Ex.P.5 bunch of letters,
plaintiff has not whispered the fact that the working
drawings were not furnished to him by the defendants.
Only in the letter dated 11/5/1994 addressed by the
plaintiff to the 2nd defendant, which was issued almost 9
months after the commencement of the work, the plaintiff
has alleged that the construction work is held up for
want of drawings of basement and above and sought for
furnish working drawings from the defendants.
53. A perusal of the letters dated 28/11/1994,
addressed by the plaintiff to the 2nd defendant, he had
admitted that he had received the drawings from
Chikkaballapur Sub Division on 26/11/1994. In the
letter dated 27/7/1995 addressed by the plaintiff to the
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3rd defendant, he had admitted that he had received
detailed drawings pertaining to lintels on 24/6/1995.
Further a perusal of Ex.D.8 letter dated 7/4/1993
addressed by the 2nd defendant - Chief Engineer to the
Superintendent Engineer, PWD, Bangalore, discloses that
the approved structural drawings showing the details of
excavation RC columns and footing were ready with the
department. Considering the documentary evidence
produced on record, this court is of the opinion that the
plaintiff has failed to prove that the defendants have
failed to furnish him the necessary working drawings
which resulted in delay in construction of the work.
54. The second ground urged by the plaintiff for
non completion of the construction work within the
stipulated period of time by him is the alleged failure on
the part of the defendants to get the hightension electric
lines, telephone lines and Municipal water supply lines
shifted from the construction site in time. With regard to
this alleged failure of the defendants to perform their part
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of contractual obligations is concerned, plaintiff has
pleaded and lead evidence stating that since hightension
electric lines, telephone lines and water supply lines were
passing through below the ground level of the site, it was
difficult for him to execute the work in the absence of
clearance of this obstruction in the working site. That he
had brought the fact of delay caused in clearing the
obstruction to the knowledge of the defendants through
several letters. There was abnormal delay on the part of
the defendants by making the site clear by removing the
obstruction, which resulted in stoppage of work and
abnormal delay in executing the work. To prove the
alleged delay caused by the defendants in clearing the
obstruction in the work site, plaintiff has mainly relied on
Ex.P.5 18 letters addressed by him to the 3 rd defendant.
A perusal of the contents of Ex.P.5 letters discloses that
in these letters, plaintiff has alleged that there is delay on
the part of the defendants to get the electric, telephone
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and water supply lines to be shifted from the working
site, resulted into delay in construction work.
55. On the other hand the defendants in their
pleadings and evidence have denied the allegations of
inordinate delay on their part in shifting the electric
lines, telephone line and water supply lines from the
work site. Further the defendants have pleaded and lead
evidence stating that when they have handed over the
construction site to the plaintiff, they have remitted a
sum of Rs.9,893/ vide cheque No.965438 dated
14/6/1993 to shift the electric lines and poles and also
transferred a sum of Rs.8,192/ to the BSNL Account
vide MD No.5572 to shift the telephone lines and poles.
After the receipt of the said sum by the above said two
departments, the said departments have shifted the poles
and lines from the site. There was no obstruction for
commencement of work by the plaintiff. In support of
their defence, the defendants have relied on Ex.D.6
endorsement pertaining to payment of sum of Rs.8,192/
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to the BSNL Department to shift the telephone lines and
poles from the construction site. Further, the defendants
have also relied on the proforma bill annexed to Ex.D.6
evidencing payment of a sum of Rs.9,893/ by the 3 rd
defendant for shifting of electric lines and poles from the
construction site. Defendants have also produced Ex.D.7
letter addressed by the Assistant Executive Engineer,
PWD Sub Division, Chikkaballapur to the KEB pertaining
to payment of Rs.9,893/ vide receipt No.28911 dated
23/6/1993 by the defendants for shifting of electric lines
from the schedule site. Ex.D.6 and D.7 documents
produced by the defendants supports their contention
that there was no delay on their part to get the electric
lines and poles and telephone lines and poles to be
shifted from the construction site.
56. A perusal of the materials on record discloses
that the plaintiff who has made allegations of inordinate
delay against the defendants for shifting electric lines,
telephone lines and water supply lines has not produced
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the program of work as required under clause 2(b) of the
Ex.P.1(a) schedule of contract form, wherein, the agreed
time stipulated for the defendants to get the electric lines,
telephone lines and water supply lines shifted from the
construction site and to get the site clear. In the absence
of production of program of work before the court, the
contention of the plaintiff that there was inordinate delay
on the part of the defendants to get the electric lines,
telephone lines and water supply lines shifted cannot be
accepted. Apart from that a perusal of the materials on
record discloses that in letter dated 24/10/1994
addressed by the plaintiff to the 3rd defendant, he had
admitted that electric lines were shifted in the month of
September 1994. In the letter dated 27/7/1995
addressed by the plaintiff to the 3rd defendant, he has
admitted that telephone lines were also shifted.
57. By perusing the materials produced on record,
this court is of the opinion that the plaintiff has failed to
prove that there is abnormal delay on the part of the
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defendants in fixing the high tension electric lines,
telephone lines and Municipal water supply lines, which
has resulted in stoppage of work, thereby, there is breach
of contractual obligations on the part of the defendants in
performing their part of the contract.
58. The third alleged reason stated by the plaintiff
for non completion of the work within the stipulated
period of time is non availability of building materials at
the distance shown by the defendants at the time of
tendering. With regard to this reason, the plaintiff has
pleaded and lead evidence stating that the essential
building materials were not available to him at a
reasonable distance and he had to go in search of the
building materials, since same were not available at the
place shown by the defendants at the time of tendering,
which has caused further delay in executing the work
which incurred extra cost and required much more
investments by him. On the other hand the defendants
in their written statement and evidence have denied this
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allegation and further contended that plaintiff being a
classI contractor has to look after all the things, he
cannot depend upon the defendants for collecting
material to complete the tender work.
59. A perusal of the evidence on record discloses
that plaintiff has not produced any document to show
that the defendants have assured him about availability
of building materials at a reasonable distance when he
has entered into contract with the defendants. Even in
Ex.P.1 tender document there is no clause stating that
defendants have assured the plaintiff about availability of
building materials at a reasonable distance from the work
site. Apart from that the plaintiff has not produced the
program of work to show that the defendants have
assured him about availability of essential building
materials at a reasonable distance at the time of
tendering. In the absence of production of any
documentary evidence to show that the defendants have
assured the plaintiff about availability of essential
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building materials at a reasonable distance, the
contention of the plaintiff that the essential building
materials were not available at a reasonable distance
shown by the defendants which has caused further delay
in execution of the work by him incurring extra cost and
making more investment by him cannot be accepted.
60. The fourth reason stated by the plaintiff for non
completion of the work within stipulated period of time is
the alleged irregular interim payments made by the
defendants with regard to the construction work done by
him. With regard to this reason, the plaintiff has pleaded
and lead evidence stating that the contract provided for
payment for the work done in each month. There were in
ordinate delays in preparing and payment of bills by the
defendants. In some occasion, the defendants took 6 to 8
months for making one running bill payment. The
irregular payments made by the defendants has created
unbalance working condition and delayed the completion
of the work. Even at the time of cancellation of the work
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there were substantial pending payments. The delay in
making payments were brought to the knowledge of the
defendants through various letters addressed by him to
the defendants.
61. On the other hand the defendants in their
written statement and also evidence have denied the
allegations of irregular payments made by them with
regard to the work done by the plaintiff. Defendants
further contended that the amount for the work done by
the plaintiff has been disbursed as per the allocation of
funds made by the government and there was no
inordinate delay in preparing the bills on their side.
Defendants further contended that as on the date of
cancellation of the contract, the plaintiff had already
received a sum of Rs.17,40,149/ on 19/2/1999, which
shows that there is no delay in payment to the plaintiff
with regard to the work done by him.
62. A perusal of the pleadings and evidence of the
plaintiff discloses that except stating the fact that the
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defendants were irregular in interim payments for the
work done by him, plaintiff has not stated the details
about the preparation of the running bills and the date of
alleged delayed payments made by the defendants
pertaining to the running bills. Admittedly, the value of
work done till cancellation of the work as per the plaint
averments is Rs.17,83,296/. On the other hand,
defendants contends that as on the date of cancellation
of the work plaintiff had received a sum of
Rs.17,40,149/, which is not seriously disputed by the
plaintiff. In the absence of production of reliable
documentary evidence the contention of the plaintiff that
there is inordinate delay on the side of defendants in
preparing and payment of running bills and the interim
payment for the work done by him were very irregular by
the defendants cannot be accepted.
63. A perusal of the materials on record discloses
that Ex.P.1 contract was entered between the plaintiff
and defendants on 11/8/1993. Date of commencement
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of the work under Ex.P.1 contract was fixed on
19/8/1993. Date of work order was issued on
24/8/1993. Date of completion of the work as per Ex.P.1
contract was 15/11/1995. A period of 27 months was
fixed for performance of contract under Ex.P.1 contract.
The defendants have rescinded the contract only on
19/2/1999 i.e. after 66 months of entering into the
contract.
64. In the present case, the plaintiff has pleaded the
alleged delay in supply of working drawings, alleged delay
on the part of the defendants to get the hightension
electric lines, telephone lines and Municipal water supply
lines as the main reasons for non completion of the work.
However, in Ex.P.5 letters addressed by the plaintiff to
the defendants, he has admitted about the shifting of
electricity lines in the month of September 1994, shifting
of telephone lines in the year 1995 and also receipt of
working drawings in the month of November 1994. Since
the plaintiff has admitted about the shifting of electricity
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lines in the month of September 1994, receiving of
working drawings in the month of November 1994 and
shifting of telephone lines in the year 1995, the alleged
reasons shown by the plaintiff for non completion of the
work within the stipulated period of time cannot be
accepted.
65. A perusal of the pleadings and evidence of the
plaintiff discloses that plaintiff has alleged that delay on
the part of the defendants in supply of approved working
drawings, delay in shifting of hightension electric lines,
telephone lines and Municipal water supply lines from
the working site, non availability of construction
materials at the distance shown by the defendants at the
time of tendering, irregular interim payments made by
the defendants for the work done by him as the reasons
for non completion of the contract work within the
stipulated period of time. However, a perusal of Ex.P.1
schedule of the contract form discloses that clause 29 of
the contract provides for settlement of dispute or
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difference that arose between the 3 rd defendant -
Executive Engineer and the Contractor regarding any
dispute arose with regard to the execution of the work
during the progress of the work to be referred to the 2 nd
defendant - Chief Engineer, who has jurisdiction over the
work. In the present case, a perusal of materials on
record discloses that the plaintiff who has made
allegations of non performance of contractual obligations
by the 3rd defendant during the period of execution of the
contract has admittedly not referred the said dispute to
the 2nd defendant - Chief Engineer. The very fact that the
plaintiff has not referred the settlement of the dispute in
terms of the clause 29 of the contract is another
circumstance which goes against the case of the plaintiff
with regard to alleged failure of the defendants to perform
their part of the contractual obligations as the reason for
the plaintiff for non completion of the contractual work
within the stipulated period of time.
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66. With regard to recession of Ex.P.1 contract by
the defendants on 19/2/1999 is concerned, the plaintiff
had pleaded and lead evidence stating that inspite of non
performance of contractual obligations by the defendants
which has caused delay in execution of the work, he has
executed the work to the possible extent and trying to
complete the work. Meantime, the defendants have
chosen to take illegal, wrongful and unwarranted action
of canceling the contract with a threat to execute the
balance work at his risk and cost, though the delay in
execution of the work were attributable to the
defendants. The defendants were not even bother to fix
further period for performance to make time essence of
the contract, after original contract period expired on
15/11/1995. Inspite of repeated requests made by him
for extension of time before the expiry of the contractual
period, the defendants have not extended the period for
performance of the contract and illegally and wrongfully
canceled the contract on 11/3/1999.
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67. On the other hand, the defendants in their
written statement and their evidence have denied the
plaintiff's allegation that the cancellation of the contract
on 19/2/1999 by them was illegal and wrongful. On the
other hand, the defendants have pleaded and lead
evidence stating that as per the terms of the Ex.P.1
contract dated 11/8/1993 the construction work should
have been started on 19/8/1993 and should have been
completed in all respects on or before 15/11/1995 with a
monthly stipulated progress of Rs.2,14,576/. The
contractor - plaintiff has not completed the work as per
schedule and delayed the work very badly. Plaintiff
himself has caused delay of about 4 years in executing
the work and they have impliedly allowed the plaintiff to
work till 11/3/1999. Plaintiff has miserably failed to
comply the terms and conditions of the tender agreement
with regard to achievement of financial progress. The
plaintiff has only achieved financial progress of
Rs.17,04,149/ instead of contractual financial progress
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of RS.42,91,520/ fixed in the Ex.P.1 contract. Due to
failure on the part of the plaintiff to achieve the financial
progress in the terms of the agreement, the Chief
Engineer C&B (S), Bangalore has canceled the contract of
the plaintiff as per rules and same was communicated to
the plaintiff by the 3rd defendant - Executive Engineer
through his letter dated 22/11/2002.
68. A perusal of the pleadings and evidence of the
plaintiff discloses that the main grievance of the plaintiff
with regard to recession of the contract dated 11/8/1993
by the defendants on 19/2/1999 is that due to failure on
the part of the defendants to perform their part of the
contract, he could not able to perform his part of the
contract and complete the construction work within
stipulated period of time, as a result of which, he has
addressed several letters to the defendants before expiry
of the period of contract seeking extension of time to
perform his part of the contract and defendants have not
bothered to extend the time for performance of the
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contract to make time essence of the contract, after
expiry of original period of contract have illegally
rescinded the contract.
69. A perusal of the pleadings and evidence of the
plaintiff discloses that he claims that time was not the
essence of Ex.P.1 contract and the action of the
defendants to rescind the contract without giving
extension of time to perform his part of the contract is
illegal.
70. At this juncture, it is relevant to consider a
decision of the Apex Court of the Land reported between
State of Maharastra & another V/s. Digambar Balwant
Kularni reported in AIR 1979 Supreme Court 1339,
wherein, the Apex Court of the Land has held that :
"Contract Act (9 of 1872), Ss.39 and 55 - Works
contract - Time mentioned as of essence of contract - But
contract enforceable till completion of work or its
abandonment - Rescission of contract and consequent
forfeiture of security deposit held proper within terms of
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contract. Appeal No.534 of 1969, dt. 11/7/1968 (Bom),
Reversed."
71. In the above cited decision the Apex Court of the
Land has interpreted the clauses of a work contract
similar to that of Ex.P.1 contract and held that time was
essence of the contract in the limited sense that the
contract will be continued to be in force till the
completion of the work or its abandonment. In the said
decision by interpreting the clauses of the work contract
similar to that of Ex.P.1 contract, the court held that the
rescission of the contract and forfeiture of the security
deposit by the Executive Engineer on the failure of the
part of the Contractor to achieve the work progress was
valid.
72. The aspect as to whether the time was the
essence of Ex.P.1 contract or not has to be considered by
going through clauses of Ex.P.1(a) schedule of the
contract form.
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73. A perusal of clause 2(b) of Ex.P.1(a) schedule of
contract form discloses that the same provides that the
time allowed for carrying out the work as entered in the
tendering shall be strictly observed by the Contractor. It
further provides that the work shall through out the
stipulated period of the contract be proceeded with all
dues diligence (time being deemed to be the essence of
the contract on the part of the contractor). It also
provides that to ensure good progress during the
execution of the work, the contractor shall be bound to
comply with the time schedule according to the program
of execution of work as agreed upon enclosed to the
contract.
74. A perusal of clause 2(d) of the contract which
provides for penalty for delay discloses that it provides
that in respect of shortfall in progress assessed due to
the delay on the part of the contractor as per clause 2(b)
& (c), the contractor shall be liable to pay as penalty an
amount equal to 1% of the estimated cost of the balance
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work assessed according to the program for every day
that the due quantity of work remains incomplete.
Further clause 3 of the contract provides that in any case
in which under any clause or clauses of the contract, the
Contractor shall have rendered himself liable to pay
compensation or penalty amounting to the whole of his
security deposit including the amount deducted in
installments from his bills as further security deposit, the
Executive Engineer on behalf of the Governor of
Karnataka shall have power to adopt the recourses, such
as, forfeiture of security deposit, recession of the
contract. Clause 3(e) of the contract provides that in the
event of the Executive Engineer taking recourses with
regard to forfeiture of security deposit of the contract and
for recession of the contract, the Contractor shall have no
claim to compensation for any loss sustained by him.
75. A perusal of the above mentioned provisions of
Ex.P.1 contract stated in Ex.P.1(a) schedule of the
contract form, if read together and interpreted with
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reference to each other provision and read as single
whole closely goes to show that the contract was to
continue to be in force till the completion of the work or
its rescission. The time was the essence of the contract
only for the limited sense that if the plaintiff completed it
within the original contractual period, he would not be
liable to pay any compensation, but in case of non
completion of the contract within the contractual period,
plaintiff has to compensate the defendants for non
completion of the work and right of recession of the
contract would accrue to the defendants on non
completion of the work by the plaintiff. Hence, the
contention of the plaintiff that under Ex.P.1 contract
dated 11/8/1993 the time was not the essence of the
contract and the act of the defendants to rescind contract
without extending period of time for performance of the
contract is illegal cannot be accepted.
76. With regard to the grievance of the plaintiff
pertaining to non extension of time to perform contract
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by the defendants is concerned, a perusal of clause 5 of
the schedule of contract discloses that the same deals
with grant of extension of time. Clause 5(a) of the
contract provides that :
" If the contractor shall desire an extension of the
time for completion of the work on the ground of his
having been unavoidably hindered in its execution or on
any other ground, he shall apply in writing to the
Executive Engineer before the expiration of the period
stipulated in the tender or before the expiration of 30
days from the date on which he was hindered as
aforesaid or on which the cause for asking for extension
occurred, whichever is earlier and the Executive Engineer
or other competent authority may, if in his opinion, there
are reasonable grounds for granting an extension, grant
such extension as he thinks necessary or proper. The
decision of such competent authority in this matter shall
be final."
77. A perusal of the clause 5(a) of the schedule of
contract form discloses that the aspect of extension of
time with regard to performance of the contract was in
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the discretionary of the 3rd defendant - Executive
Engineer. The decision of the 3rd defendant - Executive
Engineer in the extension of time is final. In the light of
the clause 5(a) of the contract, a perusal of the materials
on record discloses that on the letters addressed by the
plaintiff to the defendants seeking extension of time to
perform his part of the contract, the defendants though
have not extended the time for performance of contract in
writing, but have impliedly granted extension of time till
recession of the contract. However, the 2 nd defendant
considering the fact that the plaintiff has failed to achieve
the required work progress has issued Ex.D.10 to D.16
notices to the plaintiff on various dates calling upon him
to make up the shortfall of the work progress and on
failure of the part of the plaintiff to make up the shortfall
of the stipulated work progress has issued Ex.D.7 final
notice dated 27/2/1996, calling upon the plaintiff to
make up the shortfall in the work progress and on the
failure of the plaintiff to reach the stipulated work
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progress has rescinded the contract through Ex.D.5 letter
dated 19/2/1999 addressed by the 2nd defendant to the
3rd defendant permitting to rescind Ex.P.1 contract of the
plaintiff on cost and risk basis in terms of clause 3 of the
contract.
78. On the aspect of recession of Ex.P.1 contract is
concerned, a perusal of the contents of Ex.P.1(a)
schedule of the contract form discloses that clause 2(d) of
the contract deals with penalty for delay in respect of
shortfall in progress assessed due to the delay on the
part of the Contractor in completing the work. Clause
2(d) of the contract provides for payment of penalty by
the Contractor in case of shortfall in progress an amount
equal to 1% of the estimated cost of the balance work
assessed according to the program for every day that the
due quantity of work remains incomplete.
79. A perusal of clause 3 of the contract discloses
that it provides that in any case in which under any
clause of the contract, the Contractor shall have rendered
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himself liable to pay compensation / penalty, the
Executive Engineer under clause 3(a) of the contract have
right to rescind the contract by issuing a written notice to
the Contractor.
80. In light of the above mentioned provision of
clause 2 and 3 of the Ex.P.1 schedule of contract form a
perusal of the materials on record discloses that the
Assistant Executive Engineer, PWD Department,
Chikkaballapura has issued Ex.D.10, D.12, D.13, D.14,
D.15 & D.16 notices dated 2/6/1994, 1/1/1994,
18/6/1994, 30/8/1994, 30/9/1994 & 15/12/1994,
calling upon the plaintiff to make good the shortfall in the
progress of the work and to achieve the work progress in
terms of the contract. A perusal of contents of Ex.D.17
final notice dated 27/2/1996 issued by the 3 rd defendant
- Executive Engineer to the plaintiff discloses that in the
said notice it is alleged that inspite of repeated notices
issued to the plaintiff, he had failed to achieve the
necessary work progress in terms of the contract and as
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on 15/11/1995 there was shortfall of work progress
amounting to Rs.34,25,092/ and plaintiff had stopped
the construction work in the month of December 1995
and had not commenced the work since then. It is
further alleged that since the plaintiff has failed to
achieve the required work progress, the defendants have
decided to impose penalty on the plaintiff for the shortfall
of the work and called upon the plaintiff to start the
remaining construction work within 15 days, failing
which his contract will be rescinded on cost and risk
action. Thereafter, ExP.1 contract was rescinded on
19/2/1999 under Ex.D.5 letter dated 19/2/1999
addressed by the 2nd defendant to the 3rd defendant.
81. A perusal of the materials on record discloses
that the fact that under Ex.P.1 contract dated 11/8/1993
the agreed monthly stipulated progress fixed was
Rs.2,14,576/ is not in dispute. Further fact that even
after completion of the stipulated period of contract on
15/11/1995 and upto recession of the contract on
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19/2/1999, plaintiff could only achieve approved work
progress of Rs.17,58,071/ instead of the required work
progress of Rs.42,91,526/ is also not in dispute. Plaintiff
who has alleged that the alleged defaults on the part of
the defendants in performing their part of the contractual
obligation as reasons for non completion of the work
within the stipulated period of time has failed to prove
the same. On the other hand, the defendants on the
ground that the plaintiff has failed to achieve the
required stipulated progress of work have issued Ex.D.17
final notice dated 27/2/1996 stating that they have
decided to impose penalty in terms of the Ex.P.1 contract
for the shortfall in the work progress have decided to
rescinded the contract in terms of Ex.P.1 contract on
failure of the plaintiff to reach the stipulated work
progress and to commence the work which had stopped
by him. Thereafter, the defendants have rescinded
Ex.P.1 contract through Ex.D.5 letter dated 19/2/1999
on the ground that plaintiff has failed to make up the
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shortfall of the stipulated work progress in terms of
Ex.P.1 contract. Since the defendants have rescinded the
contract in terms of Ex.P.1 contract for failure on the
part of the plaintiff to achieve the required progress of the
work, the contention of the plaintiff that the recession of
the contract dated 11/8/1993 by the defendants on
19/2/1999 is illegal and arbitrary, cannot be accepted.
82. The learned counsel for the plaintiff in his
written arguments and further written arguments filed
before the court has mainly relied on Section 52 to 55 of
the Indian Contract Act and argued that since the
defendants have failed to fulfill their promise in terms of
the Ex.P.1 contract, the plaintiff could not able to
complete the construction work within stipulated period
of time. It is further argued that inspite of failure on the
part of the defendants to perform their part of the
contract, the plaintiff was executing the work under most
trying circumstances. Inspite of it, defendants have
chosen to take illegal, wrongful and unwarranted action
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of cancellation of the contract with a threat to execute
balance work at his risk and cost, though the delays and
defaults were attributable to the defendants. It is further
argued that the defendants were not even bothered to fix
further period of performance to make time essence of
the contract after expiry of original contract period. It is
further argued that in view of the breach of contractual
obligations by the defendants, plaintiff is entitle for the
damages which the plaintiff has sought for as suit claims
in the present suit.
83. On issues No.1 and 2 are concerned, the
learned counsel for the plaintiff in his written arguments
and additional written arguments has relied on following
citations, which will be considered one by one.
(1) In Hind Construction Contractors V/s. State of
Maharastra reported in AIR 1979 page 720, wherein, the
Apex Court of the Land has stated about the tests for
deciding if the time was essence of the contract when
Contractor has not completed the contract within
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stipulated period of time and when no term in contract
making the time essence of contract.
84. I have perused the ratio of the above cited
decision. However, unlike cited decisions in the present
case in hand in clause 2(b) of Ex.P.1 schedule of contract
form, it was specifically stated that time being deemed to
be the essence of the contract on the part of the
Contractor. Hence, the ratio of the above cited decision
is not helpful for the plaintiff to prove that time is not the
essence of the contract under Ex.P.1 agreement.
85. The learned counsel for the plaintiff has also
relied on a decision reported between State of Karnataka
V/s. Sree Rameshwara Rice Mill, Theerthahalli, reported
in 1987 AIR 1359, wherein, the Apex Court of the Land
has held that in case of breach of agreement amount of
assessment of damages is to be made by the independent
body and not by parties to the contract.
86. I have perused the ratio of the above cited
decision also. However, unlike cited decision, plaintiff
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has failed to prove that defendants have committed
breach of condition of agreement and he is entitle for
damages. Hence the ratio of the above cited decision is
also not helpful for the plaintiff.
87. The plaintiff's counsel has also relied another
decision reported between J.J.Engineers Private Limited
V/s. Union of India and another reported in 2011(2)
ARB.LR.84(SC), wherein the Apex Court of the Land held
that the question whether the other party committed
breach cannot be decided by the party alleging breach. A
Contractor cannot provide that one party will be the
Arbitrator to decide whether he committed breach or the
other party committed breach, the question can only be
decided by an adjudicatory firm i.e. a Court or an Arbitral
Tribunal.
88. I have perused the ratio of the above cited
decision. However, considering the fact that the Ex.P.1
contract do not provide for arbitration clause for decide
breach of contract by the defendants themselves who are
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the parties for the contract, the ratio of the above cited
decision is also not helpful for the plaintiff.
89. The learned counsel for the plaintiff has also
relied on another decision reported in Municipal
Corporation of Delhi V/s. Jagannath Ashok Kumar
reported in Arbitrators Law Reporter 1987(2) page 344,
wherein, the Apex Court of the Land has held that if the
contract has a provision for extension of time or
compensation then it cannot be said that time was
essence of the contract.
90. I have perused the ratio of the above cited
decision. Unlike cited decision in Ex.P.1(a) schedule of
contract form it was specifically stated that time was the
essence of the contract. The provision for extension of
time for performance of contract was given at the
discretion of the defendants. Considering the fact that in
Ex.P.1 contract it was specifically stated that time was
the essence of the contract and work of plaintiff was
required to perform his part of the contract strictly within
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the specific period of time, the ratio of the above cited
decision is also not helpful for the plaintiff.
91. By perusing the oral and documentary evidence
produced on record and over all assessment of the same,
I hold that plaintiff has failed to prove that defendants
have failed to perform their part of contractual
obligations of the contract dated 11/8/1993 entered
between him and the defendants. Plaintiff has also failed
to prove that cancellation of contract dated 11/8/1993
made by defendants on 19/2/1999 is illegal and
wrongful. With these observations, I answer issues No.1
and 2 in the negative.
92. ISSUE NO.3 : With regard to issue No.3 is
concerned, the plaintiff has pleaded and lead evidence
stating that the stipulated period of contract expired on
15/11/1995. Inspite of several delays and defaults
committed by the defendants, he continued the execution
of the work even beyond he stipulated period. The
defendants have also implied and permitted him to
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complete the execution of the work. His repeated request
for grant of extension of time to perform part of the
contract was kept in silent by the defendants and made
him to continue the work. All of a sudden the defendants
have taken illegal action of canceling the contract by
applying cost and risk action of completing the balance
work.
93. On the other hand, the defendants have pleaded
and lead evidence stating that since the plaintiff
contractor has failed to complete the work within
stipulated period, they have canceled the tender of the
plaintiff on cost and risk basis as per clause 3(b) & (c) of
the schedule of the contract.
94. In the present case in hand, the plaintiff has
failed to prove that cancellation of the contract dated
11/8/1993 made by the defendants on 19/2/1999 is
illegal and wrongful. On the other hand, perusal of
evidence on record discloses that admittedly the plaintiff
has failed to achieve monthly stipulated progress of the
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work in terms of the contract. On the date of
cancellation of the contract, the plaintiff was required to
achieve the work progress of Rs.42,91,526/, against
which, he had reached the approved work progress of
only Rs.17,58,071/. A perusal of clause 2(d) of the
contract discloses that it provides for payment of penalty
by the contractor in respect of shortfall in progress due to
delay on the part of the contractor as per clause 2(b) & (c)
of the contract. Clause 3 of the contract provides that in
cases in which under any clause of the contract, the
Contractor shall have rendered himself liable to pay
penalty, the Executive Engineer have power to rescind
the work under clause 3(a) of the contract and cancel the
contract on risk and cost basis as per clause 3(c) of the
contract.
95. A perusal of the materials on record discloses
that since the plaintiff - Contractor has failed to reach
the stipulated work progress and the shortfall in work
progress was assessed due to delay on the part of
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contractor, defendants rescinded the contract of the
plaintiff on cost and risk basis as per clause 3(b) & (c) of
the schedule tender. Since Ex.P.1(a) schedule of contract
form provides for recession of the contract on cost and
risk basis and since the defendants have rescinded the
contract on cost and risk basis in terms of the Ex.P.1(a)
schedule of contract form, the contention of the plaintiff
that the defendants cannot apply the cost and risk action
for completing the balance work against him in case of
recession of contract cannot be accepted. With these
observations, I answer issue No.3 in the negative.
96. ISSUE NO.4 : With regard to issue No.4 is
concerned, the plaintiff has pleaded and lead evidence
stating that due to several delays and defaults committed
by the defendants, he was unable to complete the
construction work within stipulated period of time. The
defendants instead of granting extension of time to him
to complete the construction work have wrongfully
rescinded the contract. That the defendants are liable to
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refund EMD of Rs.40,000/, FSD recovered under bills
amounting to Rs.1,10,770/ and NSC recovered in bill
amounting to Rs.12,700/, totally amounting to
Rs.1,63,470/. Plaintiff has claimed interest @ 12% per
annum on the above mentioned sum of Rs.1,63,470/
amounting to Rs.3,49,825/. Plaintiff has sought for
total claim of Rs.5,13,295/ on the above mentioned
amounts.
97. On the other hand, the defendants have pleaded
and lead evidence stating that since the plaintiff has
failed to complete the work within stipulated period of
time, they have canceled the contract on cost and risk
basis as per clause 3(b) & (c) of the schedule of contract
and security deposit has been forfeited to the
government. Hence, the question of considering the
claim made by the plaintiff for a sum of Rs.1,63,470/
and interest of Rs.3,49,825/ will not arise. Once the
forfeiture clause is opened by them, the question of
considering the above claim of the plaintiff will not arise.
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98. In the present case in hand, the plaintiff has
failed to prove that recession of the contract dated
11/8/1993 on 19/2/1999 by the defendants is illegal
and wrongful. On the other hand, since the plaintiff has
failed to reach the stipulated work progress in terms of
the contract, the defendants by invoking clause 3(a) of
the contract have rescinded the contract and forfeited the
security deposit of the plaintiff - Contractor. Since the
defendants have forfeited the amount deposited by the
plaintiff in term of clause 3(a) of the contract, the
contention of the plaintiff that defendants are liable to
pay him claim of Rs.5,13,295/ on the forfeited security
deposits cannot be accepted. With these observations, I
answer issue No.4 in the negative.
99. ISSUE NO.5 : As claim No.2 plaintiff has sought
for payment of damages of Rs.43,81,236/ from the
defendants towards payment of damages of idle charges
for men and machinery suffered by him towards stoppage
period of execution of the work in contract period. With
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regard to this claim is concerned, the plaintiff has
pleaded and lead evidence stating that the execution of
the work was stopped on several occasions for want of
design details and due to obstruction on work site and
lack of payment. The total period of stoppage was 339
days during the period of execution of the work from
commencement of the work to the cancellation of the
contract due to various defaults and breach committed
by the defendants, as a result of which, he has suffered
damages in the form of idle charges for men and
machinery. He had written various letters to the
defendants by intimating the stoppage of the work before
the expiry of the contract period. He has kept separate
men and machinery for this work. He has no chance to
mitigate the damage suffered during the idle period and
there are no other opportunity to utilize the
establishment made by this aspect and he was always
ready at work site waiting for instructions of defendants
to execute the work. The idle charges per day works out
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to Rs.3,600/ including labourers machinery. The
defendants are required to compensate him for idle
charges at the rate of Rs.3,600/ per day for the period of
339 days. The idle charges were calculated for the
construction period when the stoppage was occurred. On
this claim, the plaintiff has sought for payment of
damages of Rs.12,29,400/ plus interest of
Rs.30,60,836/ @ 12% per annum, totally amounting to
Rs.43,81,236/.
100. With regard to the above mentioned alleged
claim No.2 of the plaintiff is concerned, the defendants
have pleaded and lead evidence stating that the payment
of damages by them for the idle charges of men and
machinery alleged to have been suffered by the plaintiff
do not arise, since there was no stoppage of work ordered
by them at any stage during the subsistence of the
contract. The Contractor cannot made any claim for
compensation as per clause 15 of the schedule of
contract form. They reserved their right to take action
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against the plaintiff for the delay in execution of the
work. Plaintiff has not maintained the men and
machinery in the site during the subsistence of the
contract. There is no default and breach committed by
them. Plaintiff unnecessarily making false allegations
against them and has sought for imaginary amount of
compensation on this claim. At no point of time, plaintiff
has shown the idle of men and machinery at the site
during the subsistence of agreement and plaintiff has
not made any representation in this regard.
101. In support of this claim of damage for idle
charges of men and machinery alleged to have been
suffered by him, plaintiff has mainly relied on Ex.P.16 -
56 vouchers pertaining to some payments made by
plaintiff to one D. Kuppuswamy on various dates towards
4 skilled and 15 unskilled workers. Except producing
Ex.P.16 vouchers before the court, plaintiff has not
proved the contents of the said vouchers by examining
the above mentioned D. Kuppuswamy to prove that he
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had made any payments to him with regard to the
labourers as alleged in the said vouchers. Hence mere
production of Ex.P.16 vouchers are not helpful for the
plaintiff to claim any compensation towards idle charges
of men and machinery, alleged to have been suffered by
him.
102. A perusal of the evidence on record discloses
that the plaintiff has failed to prove that the stoppage of
work of construction was ordered by the defendants at
any point of time. No documentary evidence produced on
record by the plaintiff to show that the total period of
stoppage of the work was 339 days. Plaintiff has not
produced any documentary evidence to show that he has
kept separate men and machinery for this work and as a
result of the alleged stoppage of the work he has suffered
any damages. Plaintiff has also not produced any
documentary evidence to show that he had incurred
expenses of Rs.3,600/ per day as idle charges for
stoppage of the work. On the other hand, a perusal of
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the evidence on record discloses that admittedly, plaintiff
has failed to reach the stipulated work progress in terms
of the contract. Inspite of issuance of repeated notices by
the defendants to the plaintiff, he has failed to make up
the shortfall of the work, as a result of which, defendants
have rescinded the contract of the plaintiff in terms of the
contract. A perusal of Ex.P.1(a) schedule of contract
form discloses that clause 3 (d) of the contract provides
that if the contractor does not maintain the rate of
progress as required under clause 2 of the contract and
failed to maintain the rate of progress even after taking
action under clause 2(c) & (d) by the Executive Engineer,
then the contractor will have no claim for compensation
for any loss sustained by him owing to such actions.
103. Since the plaintiff has failed to prove that due
to various defaults and breaches committed by the
defendants, he has suffered damages in the form of idle
charges for men and machinery and since clause 3 (b) of
the contract provides that the plaintiff will have no claim
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for compensation for any loss sustained by him due to
failure on his part to maintain the rate of progress as
required under the contract, plaintiff is not entitle for
payment of damages of idle charges for men and
machinery alleged to have been suffered by him. With
these observations, I answered issue No.5 in the negative.
104. ISSUE No.6 : With regard to issue No.6
pertaining to claim No.3 sought for by the plaintiff is
concerned, the plaintiff claimed a sum of Rs.46,61,091/
as payment of equitable revised rates for the work done
by him beyond the stipulated period of time.
105. With regard to this claim is concerned, the
plaintiff has pleaded and lead evidence stating that the
period of performance of the contract was prolonged
beyond the stipulated date of completion, due to several
defaults and breach of contract committed by the
defendants. Due to the defaults committed by the
defendants he was forced to execute the work in the
prolonged period beyond the stipulated period of
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completion facing the burnt of all round increase in the
market price during that period. There was no justice in
insisting him to do the work at tender rates, since the
delay in completing the work was not at all attributable
to him, he is entitle for payment of equitable revised rates
for the work done beyond the stipulated period taking
into consideration of the changed market conditions and
circumstances under which the work was executed. He
has requested the defendants to pay the equitable revised
rates for the quantity of work executed beyond the
stipulated period of completion of 15/11/1995, but the
defendant has kept silent and not made payment at
equitable revised rates for the work done by him beyond
the statutory period of contract. On this claim, plaintiff
has sought for a sum of Rs.14,84,424/ and interest of
Rs.31,76,667/ from 11/3/1999 upto 2/2/2017, totally
amounting to Rs.46,61,091/.
106. On this alleged claim of the plaintiff, the
defendants have pleaded and lead evidence stating that
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the alleged payment of equitable revised rates for the
work done beyond the stipulated period of contract does
not fall under the schedule of contract form. The plaintiff
by making false allegations has claimed huge amount
from them according to his whims and fancies and the
claim of the plaintiff is hypothetical and illogical.
107. In the present case in hand, the plaintiff has
failed to prove that the period of completion of work was
prolonged beyond the stipulated date of contract due to
several defaults and breaches committed by the
defendants. On the other hand, a perusal of the evidence
on record discloses that admittedly it is the plaintiff who
has failed to reach the stipulated work progress in terms
of the contract and inspite of issuance of number of
notices by the defendants, the plaintiff has failed to make
up the shortfall of the stipulated work resulting into
recession of the contract by the defendants. Further, a
perusal of the Ex.P.1(a) schedule of contract form
discloses that there is no provision for payment of
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equitable revised rates for the work done beyond the
stipulated period of contract as claimed by the plaintiff
particularly when the plaintiff has failed to prove that the
period of performance of the contract was prolonged
beyond the stipulated date of completion due to default
and breach of contract committed by the defendants.
Since the plaintiff has failed to prove that the period of
performance was prolonged beyond the stipulated date of
completion due to defaults and breach of contract
committed by the defendants, plaintiff is not entitle for
any payment for equitable revised rates for the work done
beyond the stipulated period of contract. With these
observations, I answer issue No.6 in the negative.
108. ISSUE No.7 : With regard to issue No.7
pertaining to claim No.4 of the plaintiff is concerned, the
plaintiff has sought for a sum of Rs.22,68,201/ as
reimbursement of expenses for longer stay at the work
site for the purpose of executing the work. With regard to
this claim is concerned, the plaintiff has pleaded and lead
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evidence stating that as a result of defaults and breach of
contract committed by the defendants, the execution of
the work prolonged beyond the stipulated date of
completion due to which he was made to incur extra
expenses and additional monthly overhead charges. He
had taken 10% of the cost of work at quoted rates visa
vis stipulated period of contract as the cost of over head
charges to meet the overhead both at head office and site
office, which included payment towards managerial
consultancy, legal advise, Engineering, Supervision,
Account stores and traveling overhead charges are fixed
in each and every month and will not increase or
decrease in proportion to quantum of work executed in
each month. The establishment engaged on the works
cannot be retrenched or reduced till the completion of the
work. Hence the expenses on monthly overhead
continued from the date of contract period dated
15/11/1995 till the cancellation of the contract on
11/3/1999. On this claim, plaintiff has sought for a
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reimbursement of Rs.7,22,357/ along with interest of
Rs.15,45,844/, totally amounting to Rs.22,68,201/ as
reimbursement expenses from 11/3/1999 upto
2/2/2007 for longer stay at the work site for the purpose
of executing the work.
109. With regard to this claim is concerned, the
defendants have pleaded and lead evidence stating that
there is no base for the plaintiff to claim a sum of
Rs.22,68,201/ as reimbursement expenses for the
longer stay at the work site for the purpose of executing
the work. The plaintiff on assumptions has calculated
the amount. Since the plaintiff has not reached the
monthly tender work, which prescribed under the
agreement, the plaintiff is not entitle for the said claim.
110. A perusal of the evidence on record discloses
that the plaintiff has failed to prove that the construction
work prolonged beyond the stipulated date of completion
due to defaults and breach committed by the defendants.
The alleged breach of contract and the alleged defaults
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committed by the defendants resulting into delay in
performance of the contract work is base for the plaintiff
to make this claim. In the absence of proving the alleged
default and breach of the contract by the defendants
resulting into longer stay of the plaintiff at work site,
plaintiff is not entitle for this claim. Apart from that
except his interested oral evidence, plaintiff has not
produced any documentary evidence to show that he had
incurred any expenses for longer stay at the work site for
the purpose of executing the work. In the absence of
production of any reliable evidence with regard to the
alleged expenses incurred by the plaintiff for longer stay
at the work site for the purpose of executing the work,
plaintiff is not entitle for this compensation also.
111. With regard to issue No.7 is concerned, the
learned counsel for the plaintiff has relied on a decision
reported between Government of Karnataka V/s
Sudhakar Reddy reported in ILR 1992 Karnataka 3276,
wherein, with regard to the tender agreement it was held
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that whatever be the quantity of work that remains over,
the Contractor should have been in readiness to complete
the work and for that purpose he should keep his entire
establishment and machinery idle for the entire period. In
that view of the matter, it cannot be said that overhead
charges should have been calculated only on the quantity
of work that remains over beyond the period in question.
112. I have perused the ratio of the above cited
decision. Unlike cited decision, in the present case in
hand the plaintiff has failed to prove that the defendants
have ordered for stoppage of the construction work. On
the other hand, due to the inability of the plaintiff -
Contractor to reach the stipulated work progress the
contract was rescinded by the defendants. Hence the
question of defendants paying overhead charges with
respect to the balance of the construction work will not
arise. Hence the ratio of the above mentioned decision is
not helpful for the plaintiff.
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113. Plaintiff's counsel has relied on another
decision between Mcdermott International Inc. V/s burn
standard co. Ltd. & others reported in 2006(2) Arb.Lr 498
(SC), wherein the Apex Court of the Land has held that in
case of challenge of the arbitration award, the scope of
intervention of the court is envisaged in few
circumstances only like in case of fraud or bias by
arbitrators, violation of natural justice where arbitrator
has gone contrary to or beyond expressed law of contract
or granted relief in matter not in dispute would come
within purview of Section 34. When Arbitrator quantified
claim by taking recourse to Emden formula which is
widely accepted one. Arbitrator cannot be committed an
error warranting interference by court.
114. I have perused the ratio of the above cited
decision. Since the plaintiff has failed to prove that the
recession of the contract by the defendants is illegal, the
question of defendants paying any compensation to the
plaintiff towards reimbursement of expenses for longer
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stay at work site will not arise. Hence, even the ratio of
this decision is also not helpful for the plaintiff.
115. Plaintiff has also relied on another decision
reported between M/s. National Highways Authority of
India Vs. M/s. TantiaTBL (JV) rendered in OMP 482 of
2009 dated 16/2/2012, wherein the Hon'ble High Court
of Delhi has upheld the finding of the arbitral tribunal
that when the contractor issued early warning notices to
the National Highways Authority of India seeking
extension of time and when National Highways Authority
of India had notified with compensation event, the
contractor has not committed breach of contract. The
Delhi High Court has also upheld the finding of the
Tribunal that when the construction work undertaken by
the contractor prolonged because of indecisiveness on the
part of the NHAI it had resulted in loss and damage to
the contractor.
116. I have perused the ratio of the above cited
decision. Unlike cited decision, in the present case in
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hand the plaintiff has failed to prove that the contract
work was prolonged because of indecisiveness on the
part of the defendants. On the other hand, the contract
was rescinded due to failure on the part of the plaintiff to
reach the stipulated work progress. Hence, the ratio of
the above cited decision is also not helpful for the
plaintiff.
117. The learned counsel for the plaintiff has relied
on another decision between M/s. National Highways
Authority of India V/s. M/s. ElsamexTWSSNCJV
rendered in OMP 789 of 2012, wherein, the Hon'ble High
Court of Delhi has rejected the petition filed by the
National Highways Authority of India challenging the
award passed by the Arbitral Tribunal by awarding
compensation to the Contractor on the breach of the
contract.
118. I have perused the ratio of the above cited
decision. Unlike cited decision in the present case in
hand, the plaintiff has failed to prove that the delay in
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execution of the work was not due to the reasons
attributable to him. On the other hand, the contract was
rescinded by the defendants for failure on the part of the
plaintiff to reach the stipulated work progress. Hence,
the ratio of this decision is also not helpful for the
plaintiff.
119. The plaintiff's counsel has relied on another
decision reported between U.P.State Electricity Board
V/s. Om Metals and Minerals (Pvt) Ltd, reported in
Arbitration Law Reporter 1994(2), wherein Allahabad
High Court has upheld the finding of the arbitral
Tribunal granting compensation to the contractor where
delay of construction work was resulted due to obstacle
created by the U.P.State Electricity Board in providing
suitable site.
120. I have perused the ratio of the above cited
decision. Unlike cited decision in the present case in
hand, the plaintiff has failed to prove that due to
obstacles created by the defendants, he could not able to
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complete the construction work within stipulated period
of time. Hence, the ratio of this decision is also not
helpful for the plaintiff.
121. The learned counsel for the plaintiff has also
relied on another decision reported between Government
of Karnataka V/s. K. Sudhakar Reddy reported in ILR
1992 Karnataka 3276, wherein, while interpreting the
clause of tender agreement it was held that over head
charges not confined only to balance of quantity of work,
entire establishment and machinery kept idle by the
plaintiff.
122. I have perused the ratio of the above cited
decision. However, unlike cited decision in the present
case the plaintiff has failed to prove that due to default
on the part of the defendants to perform their part of the
contract, he has failed to complete the construction work
within stipulated period of time. Hence the question of
payment of over head charges by the defendants to the
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plaintiff will not arise. Hence the ratio of this decision is
also not helpful for the plaintiff.
123. The learned counsel for the plaintiff in his
arguments has also relied on a decision reported between
Rail India Technical and Economic Services Limited, New
Delhi V/s. Ravi Constructions, Bangalore and another
reported in 2001 (Suppl) Arb. LR 436 Karnataka (DB),
wherein, the Division Bench of Hon'ble High Court of
Karnataka has held that parties are bound to strictly
abide by the appointment procedure pertaining to the
Arbitral Tribunal.
124. I have perused the ratio of the said decision.
The ratio of the said decision is not helpful for the
plaintiff.
125. By perusing the materials produced on record,
I hold that the plaintiff has failed to prove that the
defendants are liable to pay him a sum of Rs.22,68,201/
towards reimbursement of expenses for longer stay at the
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work site for the purpose of executing the work. With
these observations, I answer issue No.7 in the negative.
126. ISSUE No.8 : Issue No.8 of the present suit
relates to claim No.5 of the plaintiff, claiming loss of
profit on the balance work amounting to Rs.11,81,374/.
With regard to this claim is concerned, the plaintiff has
pleaded and lead evidence stating that the work was
entrusted to him at his tender rate with the tender cost of
Rs.42,91,526/ by the defendants. Inspite of failure on
the part of the defendants to fulfill their contractual
obligations he continued with the construction work and
with great difficulty he had achieved his progress of
Rs.17,83,296/ out of the tender value of
Rs.42,91,526/. The defendants though failed to perform
their part of the contract have illegally canceled the
contract. The defendants are liable to make payment of
loss of profit on the balance cost of work of
Rs.25,08,230/ @ 15% interest per annum, totally
amounting to Rs.3,76,234/, the defendants are required
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to pay him interest of Rs.8,05,140/ @ 12% per annum
on the sum of Rs.3,76,234/. Plaintiff has sought total
sum of Rs.11,81,374/ towards loss of profit on the
balance work.
127. With regard to issue No.8 is concerned, the
defendants pleaded and lead evidence stating that since
the plaintiff had achieved financial progress of only
Rs.17,04,149/ instead of the financial progress of
Rs.42,91,526/ in terms of the contract, the plaintiff is
not entitle for any compensation for loss of profit on the
balance work.
128. A perusal of the evidence on record discloses
that the plaintiff has failed to prove that the defendants
have failed to perform their contractual obligations and
failed to prove that the recession of the contract dated
19/2/1999 was illegal. On the other hand, the
defendants have rescinded the contract of the plaintiff in
terms of the contract for failure on the part of the plaintiff
to reach the stipulated work progress in terms of the
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contract. Further, a perusal of the clause 3(d) of the
schedule of contract form discloses that it provides that
when the contractor does not maintain the rate of
progress as required under clause 2 of the contract and if
the Executive Engineer take action against the contractor
under clause 3(b) or (c) pertaining to failure on the part of
the Contractor to make up the shortfall of the work, the
Contractor will have no claim for any compensation for
any loss sustained by him owing to such actions.
129. It is pertinent to note that the defendants have
rescinded the contract of the plaintiff, since he has failed
to reach the stipulated work progress in terms of the
contract. In view of the provision of clause 3(b) of the
schedule of the contract form, plaintiff is not entitle for
any compensation pertaining to loss of profit on the
balance work as claimed by him.
130. With regard to issue No.8 is concerned, the
learned counsel for the plaintiff has relied on two
decisions reported between M/s. A.T.Brij Paul Singh and
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Bros V/s. State of Gujarath reported in AIR 1984
Supreme Court 1703 and between Dwaraka Das V/s.
State of Madhya Pradesh and another rendered in Civil
Appeal No.1209/1992, wherein, the Apex Court of the
Land has held that wherein the work contract, the party
entrusting the work commits breach of contract, the
Contractor would be entitle for claim damages for loss of
profit, which he expected the earn by undertaking the
works of contract. The measure of the damages depends
on facts of each case.
131. I have perused the ratio of the above cited
decisions. Unlike cited decisions in the present suit,
plaintiff - Contractor has failed to prove that the
defendants who have entrusted the contract work to him
have committed breach of contract. On the other hand,
the contract of the plaintiff was rescinded for failure on
the part of the plaintiff to reach his stipulated work
progress. Hence, ratio of the above cited decisions is not
helpful for the plaintiff.
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132. By perusing the materials produced on record,
I hold that the plaintiff has failed to prove that the
defendants are liable to pay him a sum of Rs.11,81,374/
for loss of profit on the balance work of contract. With
these observations, I answer issue No.8 in the negative.
133. ISSUE No.9 : Issue No.9 pertains to claim No.6
sought for by the plaintiff, by which, he has sought for
payment of a sum of Rs.2,48,521/ as the release of
reserved amount in RA Bills. With regard to issue No.9 is
concerned, the plaintiff has pleaded and lead evidence
stating that the defendants have reserved the amounts to
an extent of Rs.79,147/ for want of funds, which was
clearly mentioned in running account bills on 8 th and 9th.
It is the duty of the defendants to make arrangement for
the funds for regular payment to him. The cause of delay
in making regular payments also attributable to the
defendants only. The defendants are required to release
the reserved amount of Rs.79,147/ with respect to 8 th
and 9th RA bills. The defendants are required to pay him
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interest of Rs.1,69,374/ @ 12% per annum on the
reserved amount of Rs.79,147/, totally amounting to
Rs.2,48,521/.
134. With regard to issue No.9 is concerned, the
defendants have pleaded and lead evidence stating that
the alleged reserved amount of Rs.79,147/ was made
after release of letter of credit from the government and
the bill was passed vide SBR No.72 dated 30/8/1997, as
such, they are not due any amount to the plaintiff
towards the release of reserved amount in RA bills
claimed by the plaintiff.
135. A perusal of the materials on record discloses
that except his oral evidence, plaintiff has not produced
any documentary evidence to prove that the defendants
are due a sum of Rs.79,147/ towards the release of
reserved amount in RA bills No.8 and 9. On the other
hand, the defendants have taken a specific contention
that the alleged amount due was released to the plaintiff
on 30/8/1997 vide SBR No.72. Plaintiff has not filed any
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rejoinder to the written statement of the defendants by
denying the release of this amount of Rs.79,147/
towards RA bill No.8 and 9. Apart from that a perusal of
Ex.P.6 and P.7, the claim statement of the plaintiff made
to the 2nd defendant prior to filing of suit discloses that in
this claim statement, the plaintiff has not stated that the
defendants were due any amount to him towards release
of reserved amount in RA Bills No.8 and 9. If the
defendants were due any amount to the plaintiff towards
release of reserved amount as alleged by him, certainly
defendants would have stated the same in Ex.P.6 and P.7
claim statement. The very fact that the plaintiff in Ex.P.6
and P.7 claim statements has not claimed the alleged
amount due by the defendants towards release of
reserved amount in RA bills supports the contention of
the defendants that they were not due any amount to the
plaintiff towards release of reserved amount in RA bills.
136. By perusing the materials produced on record,
I hold that the plaintiff has failed to prove that the
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defendants are due a sum of Rs.2,48,521/ to him
towards release of reserved amount in RA bills. With
these observations, I answer issue No.9 in the negative.
137. ISSUE No.10 : The defendants in the written
statement have taken a defence that the court fee paid by
the plaintiff is insufficient. However, a perusal of the
evidence on record discloses that the defendants have not
lead any specific evidence to prove that the plaintiff has
not properly valued the suit for the purpose of payment
of court fee and court fee paid by him is insufficient. On
the other hand, a perusal of the materials on record
discloses that on the suit claim of Rs.1,32,53,718/, the
plaintiff has paid a court fee of Rs.2,73,394/ as per
clause 79 and schedule (1) Article (1) of the Karnataka
Court Fees & Suits Valuation Act, 1958. By considering
the materials produced on record, I hold that defendants
have failed to prove that the suit of the plaintiff is not
properly valued for the purpose of payment of court fees.
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With these observations, I answer issue No.10 in the
negative.
138. ISSUE No.11 : The defendants in the written
statement have taken another legal defence that the suit
of the plaintiff is barred by limitation. However, a
perusal of the pleadings and evidence of the defendants
discloses that they have not lead any specific evidence to
prove that the suit of the plaintiff is barred by limitation.
Further no arguments were addressed on the aspect of
limitation by the counsel for defendants. In the absence
of specific pleadings and evidence to prove that the suit
of the plaintiff is barred by limitation, a stray sentence in
the written statement of the defendant is not sufficient to
come to the conclusion that the suit of the plaintiff is
barred by limitation. By perusing the materials placed
on record, I hold that the defendants have failed to prove
that suit of the plaintiff is barred by limitation. With
these observation, I answer issue No.11 in the negative.
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139. ISSUE No.12 : Since plaintiff has failed to
prove that the defendants have failed to perform their
part of the contractual obligations of contract dated
11/8/1993 entered between him and the defendants as
the reasons for non completion of the contract work
within the stipulated period of time and also failed to
prove that rescission of the contract dated 11/8/1993
made by the defendants on 19/2/1999 is illegal and
wrongful, plaintiff is not entitle for the suit claims sought
for. With these observations, I answer issue No.12 in the
negative.
140. ISSUE No.13 : In the present suit, plaintiff has
sought for future interest @ 18% per annum. The
learned counsel for the plaintiff on the aspect of payment
of future interest has relied on number of decisions in his
written arguments. However, since the plaintiff has
failed to prove that he is entitle for suit claims sought for,
the question for awarding future interest on the suit
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claims sought for by the plaintiff do not arise. Hence, I
answer issue No.13 in the negative.
141. ISSUE No.14 : In view of my findings on issues
No.1 to 13 and the reasons assigned thereon, I proceed
to pass the following:
ORDER
Suit of the plaintiff is dismissed.
Parties are directed to bear their costs.
Draw decree accordingly.
[Dictated to the Judgment Writer; transcript thereof corrected, initialed and then pronounced by me, in the Open Court on this the 25th day of October 2019] [S.A.Hidayathulla Shariff] LXXXIII Additional City Civil Judge.
BENGALURU.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Sri. M. Keshava Raju
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 : Sri. H.P.Ajith (discarded) DW 2 : Manjunatha L.N 125 CT 1390_Com.O.S.232019_Judgment .doc
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Agreement.
.
Ex.P.1(a) Schedule of contract form.
Ex.P 2 Schedule B - 18 sheets.
Ex.P 3 Note
Ex.P 4 Note of schedule A.
Ex.P.5 Correspondence - 28 sheets.
Ex.P.6 Claim statement of plaintiff.
Ex.P.7 Claim appeal before the 2nd
defendant.
Ex.P.8 Certified copy of order on civil Apeal
No.1586/2004.
Ex.P.9 Notice dt. 19/12/2014 - 10 sheets
Ex.P.10 to Postal Receipts.
12
Ex.P.13 to Postal Acknowledgements.
15
Ex.P.16 to Payment voucher, Certificate, Two
19 drawings.
4. List of the documents marked for the defendant/s:
Ex.D.1 Letter of correspondence by the defendant for taking measurement. .
Ex.D.2 Postal Acknowledgement dt.
13/7/2018.
Ex.D.3 Copy of the Mahazar dt. 18/7/1998 126 CT 1390_Com.O.S.232019_Judgment .doc Ex.D.4 Contract certificate dt. 22/10/1998.
Ex.D.5 Rescind Order dt. 19/2/1996.
Ex.D.6 Letter addressed by defendant to BSNL.
Ex.D.7 Letter executed by defendant to KEB.
Ex.D.8 Letter dt. 7/4/1993 addressed to Superintendent Engineer, PWD.
Ex.D.9 Letter addressed to the plaintiff by AEE, PWD to collect drawings.
Ex.D.10 Notice dt. 2/6/1994 addressed to the plaintiff.
Ex.D.11 RPAD Acknowledgement.
Ex.D.12 Notice dt. 1/1/1994 addressed to the plaintiff.
Ex.D.13 Notice dt. 18/6/1994 addressed to the plaintiff.
Ex.D.14 Letter dt. 13/8/1994 addressed to the plaintiff.
Ex.D.15 Notice dt. 13/9/1994 addressed to the plaintiff.
Ex.D.16 Notice dt. 15/12/1994 addressed to the plaintiff.
Ex.D.17 Final notice dt. 22/2/1996 addressed to the plaintiff.
[S.A.Hidayathulla Shariff] LXXXIII Additional City Civil Judge.
BENGALURU.
127 CT 1390_Com.O.S.232019_Judgment .doc 1 CT 1390_Com.O.S.232019_Judgment .doc 3 .
1 CT 1390_Com.O.S.232019_Judgment .doc 3 .