Hindustan Construction Co vs Karnataka Power Corporation Ltd on 29 January, 2020

[Cites 14, Cited by 0]

Bangalore District Court

Hindustan Construction Co vs Karnataka Power Corporation Ltd on 29 January, 2020

                                               1
                                                                  Com.O.S.No.423/2004

      IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
               JUDGE,BANGALORE CITY.(CCH.83)

                         Dated, this the 29th day of January 2020.

    PRESENT : Sri. Jagadeeswara.M.,B.Com,LL.B.,
              LXXXII Addl.City Civil & Sessions Judge,
              Bangalore.

                                    Com.O.S.No.423/2004

PLAINTIFF                             Hindustan Construction Co., Ltd.,
                                      having its Registered Office at
                                      Hincon House
                                      Lalbahadur Shastri Marg
                                      Vikkrili (West)
                                      Mumbai - 400 083
                                      Represented by Power of Attorney Holder
                                      Smt.Niyati Sareen
                                      Manager (Business Development)

                                      (By Sri.D.N.Nanjunda Reddy - Advocate)
                                      VS
DEFENDANT                             Karnataka Power Corporation Ltd.,
                                      82, Shakthi Bhavan
                                      Race Course Road
                                      Bangalore - 560 002
                                      Represented by its
                                      Managing Director

                                      (By Sri.K.G.Raghavan-Advocate)
Date of institution of the suit :     16.01.2004
Nature of the suit (suit on           Suit for recovery of money
pronote, suit for declaration
and possession suit for
injunction,etc) :
Date of the commencement              07.01.2009
of recording of the evidence
                                          2
                                                        Com.O.S.No.423/2004
 Date on which the Judgment     29.1.2020
 was pronounced
 Total duration                 Year/s       Month/s   Day/s
                                 16           00        13



                                        (Jagadeeswara.M.)
                               LXXXII Addl.City Civil & Sessions Judge,
                                             Bangalore.


                               JUDGMENT

This suit is filed by the plaintiff for judgment and decree against the defendant to pay a sum of Rs.1227.53 Lakhs with interest at the rate of 24% p.a., from the date of suit till realisation.

2. The brief facts of the plaintiff's case are as under:

2(a). It is contended in the plaint that plaintiff is a public limited company and engaged in the business of execution of building and engineering works. The defendant, KPCL, is a Company engaged in electric power generation and is a Government of Karnataka undertaking. Defendant had undertaken Kalinadi Hydro Project, Stage-II. As a part of the said project, kadra Concrete Dam-Reach II was to be constructed across river Kalinadi. Defendant had originally awarded the above said work in favour of M/s Hindustan Steel Works Construction Ltd., in the year 1984. As the said Company did not complete the execution of work, in April 1989, the defendant approached the plaintiff, as it had originally 3 Com.O.S.No.423/2004 submitted its tender for the work, enquiring whether the plaintiff would take up balance work of the project as the contract with M/s Hindustan Steel Works, stood terminated. Defendant accepted the revised offer of the plaintiff vide Letter of Intent dated 26.9.1989. Plaintiff and the defendant executed an Agreement dated 22.12.1989 incorporating the terms and conditions of the contract. Plaintiff mobilised all the necessary resources of manpower and equipment in order to complete the work well within time. Plaintiff faced several hindrances which rendered execution of the contract on the terms within the time specified for reasons wholly beyond its control. The reasons for the delay and the consequences in terms of extra and infructuous expenditure incurred by the plaintiff had prompted the plaintiff to raise a claim for Rs.356.70 Lakhs in October 1991 and an updated claim of Rs.571.94 lakh as of June 1992. The plaintiff had stressed that it would not be in a position to continue with the work after the closure of the monsoon season and without further extension of time. The major causes for the delay are that (a) delay in handing over work site (b) delay caused by the defendant to ensure supply of adequate electric power at work site (c) default of the defendant in furnishing mobilisation advances and advance towards purchase of machinery (defendant) scarcity of diesel and other petroleum products due to war in Gulf in the year 1990-91 and

(e) failure of defendant to allot sufficient stone quarries.

2(b). It is further contended in the plaint that in view of above facts, 4 Com.O.S.No.423/2004 it was estimated that there would be a delay of 21 months. A Technical Sub-Committee was appointed by the defendant, to study the claim of the plaintiff upto April 1992 and the said committee had accepted that the plaintiff was entitled to an extension of 12 months time as against 21 months time claimed and directed the plaintiff to submit a revised claim as on 19.5.1993 for a total sum of Rs.426 Lakhs including a sum of Rs.62.08 lakh towards overburden generated in the stone quarry. Defendant failed to make a firm commit in respect of the claims of the plaintiff and only by letter dated 25.3.1994 the defendant agreed to : (a) extend the time for completion till the end of March 1996, (b) to pay revised rates in variance with the agreed rates, applying the scheduled rates fixed by the defendant for the year 1993-94 plus 24% for the balance work done from 1.8.1993 upto the end of march 1996, to pay at defendant's rate for the year 1993-94 plus 33% for the works done during 1.4.1993 to 31.7.1993, (c) to recover cost of materials and royalty charges at varies rates, (d) to adopt different indices in the formula in calculating escalation of cost, (e) to adopt varied base date, namely 1.8.1993 for calculating escalation on power tariff (f) to release the amount to the plaintiff for work done from 1.4.1993 to 31.7.1993, (g) to settle the claims of the plaintiff within reasonable time and (h) to enter into a supplementary agreement to incorporate a term relating to ceiling limit of interest. On the basis of the above assurances, the plaintiff recommenced the work in the first week of April 1994 and a 5 Com.O.S.No.423/2004 Supplementary Agreement dated 7.12.1994 was also executed. Even though the defendant failed to settle the claims of the plaintiff, plaintiff continued to execute the works. By the end of December 1995, it became apparent that the work could not be completed on account of several reasons beyond the control of plaintiff and the plaintiff vide letter dated 21.12.1995 communicated the same to the respondent and sought for extension of time beyond March 1996 for completion of work. The defendant did not dispute the reasons put forth by the plaintiff and plaintiff was permitted to carry on with the work. Plaintiff completed the work in all respects as on 15.6.1997 and submitted final bill for Rs.6.43 Crores.

2(c). It is further contended in the plaint that during the course of execution of the contract, defendant had agreed to vary the base date for escalation on power tariff as 1.8.1993. The KEB had revised power tariff from August 1993. The revision of tariff for supply of electrical energy consumed was as per the first meter reading on or before 1.8.1993. Defendant is bound to reimburse plaintiff towards the increase in power tariff and on this account, the defendant is liable to pay a sum of Rs.75 lakhs to the plaintiff. It was agreed by the defendant that additional ad-hoc advance of Rs.125 lakhs would be released. The claims of the plaintiff has been rejected without affording any reasons, which is wholly contradictory to the assurance and agreement as spelt out at para-g page 34 of the Supplementary Agreement dated 7.12.1994. Defendant chose to recover an 6 Com.O.S.No.423/2004 earlier advance of Rs.219 lakhs along with interest in the first instance, while deliberately and unjustly postponing the recovery of subsequent advance, which enabled the defendant to recover an additional interest of Rs.32 lakhs from the plaintiff. The method of collection of interest at the highest balance for the month is not correct. Delay in payment is not attributable to the plaintiff and hence it would not be penalized while delaying payments of its bills. The extended stay of the execution of works during such extended period involved various expenses and overheads which would not have otherwise been incurred and since the same is wholly on account of the defendant and other third party agencies engaged by it, the additional expenses and costs are liable to be reimbursed by the defendant to the plaintiff. The several heads under which plaintiff claims reimbursement are : (a) power failures (b) delay in handing over works by other agencies (c) not being allowed to plug the construction sluices

(d) delay in release of construction drawings (e) delay in raising of several blocks (f) short supply of cement and (g) non-availability of funds etc. Though accumulated delays of work out to 669 days, it was the diligence and expedition of the plaintiff that reduced the same to the period beyond 31.3.1996 to the period April 1996 to June 1997.

2(d). It is further contended in the plaint that there were several issues which the plaintiff had raised as incidental and additional claims arising in the course of execution of the work which have remained 7 Com.O.S.No.423/2004 unresolved and they are (a) recovery of variation in cement,

(b) reinforcement used for construction of sluices (c) additional lead distance to the quarry (d) short weight of steel (e) cement used for mortar

(f) under water extraction of sand and (g) construction of coffer dam during 1994-95 etc. Plaintiff who had raised the above claims at various points of time and the defendant had given assurances in writing, but did not honour its commitment. On the other hand, the defendant had, without any justification and without assigning any reason, unilaterally proceeded to reject all claims and issues raised during the subsistence of the contract and the extended period, which was intimated to the plaintiff by a letter dated 23.6.1998. The Act of the defendant in this regard is blatantly fraudulent and amounts to unjust enrichment of itself at the cost of the plaintiff. Plaintiff has been denied its legitimate dues which were assured to be paid, in writing, at earlier points of time.

2(e). By letter dated 6.12.1999, defendant informed plaintiff that the final bill submitted by the plaintiff had been forwarded to the accounts department for scrutiny and had directed the plaintiff to attend the office for acceptance of the bill. Plaintiff upon verification of the final bill passed, found that the same to be unacceptable. After further discussion with the Managing Director of defendant, plaintiff was directed to furnish revised claim as on 15.12.1999. Accordingly plaintiff submitted a consolidated and revised claim amounting to Rs.1259.60 lakhs. By letter dated 8 Com.O.S.No.423/2004 23.9.2000, the Ex.Engineer of the defendant informed the plaintiff of a final recovery position allegedly taking into account monies due to the plaintiff and alleged amounts said to be payable to the defendant and indicated a sum of Rs.66.97 lakhs as being payable by the plaintiff. Plaintiff had by a letter dated 27.2.2001, informed the Managing Director of defendant that pursuant to the meetings with the Superintending Engineer & other officials, the claims amounting to Rs.64.50 lakhs had been voluntarily dropped and the officials of defendant had accepted the case of the plaintiff with regard to short weight of steel, which entitled the plaintiff to Rs.23.78 lakhs. Accordingly plaintiff resubmitted a further revised claim for Rs.1171.23 lakhs. By a cryptic letter dated 1.4.2002, defendant informed the plaintiff that all the claims preferred by the plaintiff stood rejected except for the claim regarding short weight of steel due to rolling margin and directed the plaintiff to attend the office for acceptance of final bill on or before 15.4.2002 failing which, action would be taken to finalise the bill and adjust the amount due from it out of bank guarantees furnished by the plaintiff. Further, by letter dated 11.4.2002 the Ex.Engineer has reiterated the fact of rejection of claims of plaintiff.

2(f). It is further contended in the plaint that being aggrieved by the action of defendant, plaintiff filed WP No.25743/2002 before the Hon'ble High Court of Karnataka and the Hon'ble High Court by its Order dated 16.9.2003 disposed off the writ petition by reserving liberty to the plaintiff 9 Com.O.S.No.423/2004 to work out its remedies in a civil suit. Hence, the plaintiff has filed this suit for recovery of a sum of Rs.1227.53 lakhs from the defendant with interest and the details of the claims of the plaintiff shown in para No.19 and page No.19 of the plaint are as under:

Sl.No.     Details of Claim                                     Rs. in Lakhs
 i.       Claim towards delay in handing over site                 363.83
          enabling works and other concerned connected
          works
 ii.      Claim towards       excessive over-burden and              62.08
          inadequate quality rock in the stone quarry made
          available
iii.      Interest recovered on Adhoc Advance with                  113.07
          interest
 iv.      Reimbursement of excess power tariff from                  72.95
          August 1993
 v.       Expenses on construction of Coffer dam during              21.96
          1994-95
vi.       Additional expenses of dewatering during 1994-              5.10
          95
vii.      Towards reinforcement steel used in constructing           65.08
          of two additional sluices
viii.     Towards construction of two additional sluice              18.65
          gates
ix.       Towards extended stay beyond March 1996                    415.16
x.        Premium on cement recovered                                 10.00
xi.       Short weight of steel-rolling margin                        23.87
xii.      Paid on 21.10.2003 under protest, under threat of           56.48
          invocation of Bank Guarantee
                                               TOTAL                1227.53

The bank guarantees furnished by the plaintiff are held by the defendant 10 Com.O.S.No.423/2004 and the same have been continued from time to time. Defendant has been threatening to invoke the same illegally. Defendant having committed serious and legally indefinable default in honouring its fiscal commitments to the plaintiff, is precluded from invoking the bank guarantees. Accordingly, the plaintiff has requested to decree the suit.

3. In pursuance of the suit summons the defendant appeared through counsel and filed its written statement. In the written statement it is the contention of the defendant that the plaintiff has filed this suit for recovery of a sum of Rs.12,27,53,000/- from the defendant. The suit is not maintainable either in law or on facts. The suit is barred by law of limitation . The Claims made are contrary to express contract between the parties. Denying the averments made in the plaint, it is contended by the defendant that the defendant had detailed examination of various issues and granted extension of time upto March 1996 without penalty and with the following package reliefs to the plaintiff:

a. To grant extension of time upto March 1996 without penalty for completing balance work.

b. Payment of revised rate at SR-1992-93 plus 33% for the period from 1.4.1993 to 31.7.1993 and R 1993-94 plus 24% for the period from 1.8.1993 to 31.3.1996.

c. Revision of escalation formula based on minimum wages for unskilled category workers.

d. To adopt base date for escalation of power tariff as 11 Com.O.S.No.423/2004 31.3.1993 in respect of work done from 1.4.1993 to 31.7.1993 and as 1.8.1993 in respect of work to be done beyond 1.8.1993.

e. To limit the interest for advances given to contractor to the extent of Rs.108.70 lakhs.

f. Apart from this an additional ad-hoc advance of Rs.125.00 Lakhs as secured advance was granted against Bank Guarantee carrying simple interest at current bank over draft rates as a support to financial constraint faced by the contractor for progressing the work.

3(a). It is further contended in the written statement that plaintiff having accepted the above said package, included a Supplemental Agreement dated 7.12.1994. The lead increased when an embankment was raised across the road during the execution of Kadra earthen Dam Works (Reach-III) during 1990-91. For the period between 1990-93, plaintiff has been paid enhanced lead of Rs.10.12 lakhs as calculated under Clause 3.01.12. For the period subsequent to 1993, the revised rate took a lead of 7 Kms into consideration in arriving at the revised rate. The quantity of short weight of steel recovered at Schedule-A rate was only for the Supplementary period, as in terms of Clause 6.7.00 the apparent increase/decrease in weight of steel issued and paid was deemed to have been taken into account by the plaintiff in its rate, as expressly provided for in the contract. The detailed specifications at Clause-6.6.18 clearly provides that the layer of 10mm thick mortar of proportion as that of 12 Com.O.S.No.423/2004 concrete is to be laid after necessary cleaning of each construction joint. The rates approved for extended period of contract was based on the schedule of rates, which clearly contemplates mortar laying and finishing as being part of the work. The plaintiff has been offered a revision of rate with some additional relief as package after considering various aspects as existed at the site, such as water extract in etc. Plaintiff having been so paid, no further payment on this account is payable. Denying all other allegations made in the plaint, the defendant has requested to dismiss the suit.

4. From the above pleadings of the parties, the following issues are framed :

1. Whether the plaintiff proves that the work under taken by it from defendant could not be completed within the stipulated time for the reasons as mentioned in para-5 of the plaint ?

2. Whether the plaintiff further proves that as per the supplementary agreement dated 7.12.1994 further work could not be completed for the reasons as mentioned in para-7 of the plaint ?

3. Whether the plaintiff proves that during the course of execution of contract the defendant had agreed to vary the base date for escalation on power tariff as on 1.8.1993 ?

4. Whether plaintiff proves that it has incurred additional expenses and costs due to the act of defendant ?

Com.O.S.No.423/2004

5. Whether plaintiff is entitled for reimbursement of those additional expenses and costs from defendant as mentioned in para-11 of the plaint ?

6. Whether plaintiff is entitled for incidental and additional claims arising in the course of execution of the work from the defendant as mentioned in para-12 of the plaint ?

7. Whether plaintiff is entitled for recovery of amounts due under different heads from defendant as mentioned in para-19 of the plaint ?

8. Whether plaintiff is entitled for interest at the rate of 24% per annum on the suit claim ?

9. Whether the suit claim is barred by limitation ?

10. What order or decree ?

5. On perusal of the Order sheet, it is noticed that on 17.10.2019 learned advocate for plaintiff filed a memo requesting to delete Issue Nos.1 to 6. Said Memo was rejected by an order dated 10.12.2019.

6. In proof of suit claim, the then General Manager of the plaintiff company got examined himself as PW.1 and got marked documents as Ex.P.1 to Ex.P.10. On the other hand, authorized representative of the defendant Company got examined himself as DW.1 and got marked one document as Ex.D.1.

7. Heard the arguments of both sides.

8. My findings on the above issues are as follows: -

Com.O.S.No.423/2004 Issue Nos.1 & 2 : Partly in the affirmative Issue No.3 : Affirmative Issue Nos.4 to 8 : Negative Issue No.9 : Affirmative Issue No.10 : As per final order for the following:

REAS O NS

9. Issue No.1 : It is submission of learned advocate for plaintiff and it is also contended in his notes of argument that plaintiff could not complete the execution of the work within the original contract period due to the delay caused by the defendant in handing over the work site, site for labour camps and stone quarry as per the terms of agreement. Further, defendant caused delay to ensure supply of adequate electric power at work site. Grid power was made available only in April 1990 which was unreliable and erratic. Further defendant also defaulted in furnishing the mobilazation advance and advance towards purchase of machinery. During the period between October 1990 to February 1991, on account of the war that broke out in the Persian Gulf, there was scarcity of diesel and other petroleum products resulting in machinery and vehicles not being capable of utilised to maximum extent. Further, defendant had allotted only one stone quarry which failed to produce adequate rock. Due to this reason plaintiff was not in a position to obtain the necessary aggregate for erecting the dam. Further it is submission of learned advocate for plaintiff that PW.1 15 Com.O.S.No.423/2004 in his oral evidence has clearly deposed relating to major causes for the delay as explained in para-5 of the plaint. DW.1 in his cross-examination has admitted that entire work site was not handed over to the plaintiff at one stage. Further he has also admitted that one portion of the site was handed over to the plaintiff in the month of October 1989 and another portion of the site was handed over in August 1990 and one more portion was handed over in the month of June 1991. Plaintiff did several correspondence to the defendant explaining the major causes of the delay. Due to this reason, Supplementary Agreement at Ex.P.4 was entered into on 7.12.1994 for the revision of rates and also extending time to complete the work. Accordingly learned advocate for plaintiff has requested to answer Issue No.1 in the Affirmative.

10. On the other hand, it is submission of learned advocate for defendant and it is also contended in his notes of argument that no doubt various delays were caused in the construction of the project and the plaintiff raised several claims by way of letters and therefore Supplementary Agreement at Ex.P.4 was entered into between the parties on 7.12.1994, for revised rates in the extended period. There was no obligation on the defendant to ensure that stone quarry was made available. The plaintiff was supposed to identify the quarry and to pay royalty to the State and to mine the stones. The defendant was obliged to only pay the lead charges. The cost of stones is included in the schedule 'B' items. If 16 Com.O.S.No.423/2004 there was over burden to the plaintiff, the plaintiff had to find out alternative quarry. There is no pleading or proof as to how the expenditure has been incurred and towards what. No documentary proof is furnished by the plaintiff and there is no reference to any contractual clauses and no pleadings as to by what date defendant was supposed to give the mobilization advance and what was the delay. There was no requirement under the contract to furnish advance towards purchase of machinery. PW.1 has admitted that plaintiff had the machinery. Accordingly learned advocate for defendant has requested to answer Issue No.1 in the 'Negative'.

11. After having heard both sides, I have carefully gone through the delay factors pleaded by the plaintiff in para No.5 of the plaint, which are:

(a) in terms of contract, the work site, site for labour camps and a stone quarry was to be handed over within 30 days from the date of LOI. But defendant was not in a position to handover the required site in entirety to the plaintiff. The defendant was finally able to handover a further extent of land in August 1990 and then it was only in June 1991 defendant was able to handover the entire work site.

Thus, there was considerable delay in handing over work site.

(b) Defendant was not able to ensure supply of adequate electric power at work site. Grid power was made available only in the month of April 1990 which was unreliable and erratic.

(d) During the period from October 1990 to February 1991, there 17 Com.O.S.No.423/2004 was war in the Persian Gulf which resulted in scarcity of diesel and other petroleum products.

(e) Defendant had allotted only one stone quarry to the plaintiff which failed to produce adequate rock.

Though defendant in its written statement has denied these major causes for the delay, but it is undisputed fact that various delays were caused in the construction of the project and the plaintiff had raised several claims by way of letters and subsequently Supplementary Agreement dated 7.12.1994 was entered into between the parties extending the time and revising the rates during the extended period.

12. PW.1 in his oral evidence has reiterated major causes for the delay as shown in para-5 of the plaint. It is evidence of DW.1 that defendant had handed over portion of site in the month of October 1989 to the plaintiff. DW.1 has expressed his ignorance to the suggestion that another portion of the site was handed over to the plaintiff in August 1990 and one more portion was handed over to the plaintiff in the month of June 1991. Further DW.1 has admitted that the project was completed on 15.6.1997 and the time to complete was extended without imposing penalty to the plaintiff which means that there was no fault of the plaintiff in execution of the work.

13. As noted above, it is undisputed fact that due to various delays were caused including the delay in handing over the work site to the 18 Com.O.S.No.423/2004 plaintiff, extension of time was made without imposing penalty on the contractor and this extension of time with revised rates was made by entering into Supplementary Agreement dated 7.12.1994 at Ex.P.4. These materials on record clearly show that there was delay caused by the defendant in handing over work site to the plaintiff.

14. Another contention of the plaintiff relating to delay is that the defendant was not able to ensure supply of adequate electric power at work site. Grid power was made available only in April 1990 which was unreliable and erratic. PW.1 in his oral evidence has deposed in this regard. No doubt, in the cross-examination at page-8 it is evidence of DW.1 that defendant had given grid power to the plaintiff for which no amount was spent for supply of grid power to the plaintiff and said grid power was erratic and unreliable. Due to such type of evidence deposed by DW.1, it cannot be held, under circumstances of this case, that plaintiff has proved that the defendant was not able to ensure supply of adequate electric power at work site and grid power was made available only in April 1990 which was unreliable and erratic, for the reasons that under the contract it was not obligation of the defendant to ensure supply of adequate electric power at work site and to supply grid power. Original Agreement between the plaintiff and defendant was entered into on 22.12.1989 as per Ex.P.3. Clause-3.02.10 of the Agreement reads as under:

"The contractor shall make suitable arrangements with the 19 Com.O.S.No.423/2004 Karnataka Electricity Board for the supply of power required for the work either for high tension supply or for low tension supply as the case may be. In case the contractor desires for HP supply, he shall make his own arrangements to provide for the transformer and the required switch gear and then extend the LT lines to the points wherever required at his own cost. The contractor shall comply with necessary formalities and conditions of the KEB in this regard from time to time. He shall install all the voltage regulators at his own cost. Regarding tariff etc., he should consult the KEB and enter into agreement with them for the payment of energy charges. The contractor shall make arrangement at his own cost for alternative types of motive power for work until the electrical power is available at him at work site. No extra payment on this amount shall be made. No compensation is payable to the contractor on account of power interruptions, failure, damages caused to transmission lines during the period of contract."

Thus, from the above noted clause of the original agreement at Ex.P.3, it is clear that it was obligation of the contractor/plaintiff to make its own arrangement to ensure supply of electric energy by entering into agreement with the KEB and it was for the contractor to make arrangement at its own cost for alternative types of motive power for work until the electrical power is made available. Therefore, there are no materials to hold that delay was caused since defendant was not able to ensure supply of adequate electric power at work site and grid power was made available in April 1990 which was unreliable and erratic.

Com.O.S.No.423/2004

15. Another delay stated by the plaintiff in para-5 of the plaint is that defendant defaulted in furnishing mobilization advance and advance towards purchase of machinery. In para-9 of the plaint, it is stated that prior to execution of Supplementary Agreement dated 7.12.1994, it was agreed by the defendant to grant additional advance of Rs.125 Lakhs which should not carry interest. Defendant chose to recover the earlier advance of Rs.219 Lakhs along with interest against the agreed terms. From the pleadings of the plaint, it is clear that mobilization advance was given by the defendant to the plaintiff. In the oral evidence of PW.1, it is simply stated that the defendant defaulted in furnishing mobilization advance and advance towards purchase of machinery. Last para in page No.2 of Supplementary Agreement at Ex.P.4 reads as under:

"Whereas, the KPCL had agreed to limit the interest on advances given to the contractor to the extent of Rs.108.07 lakhs and as the Contractor has to return the amount of advance outstanding along with interest accrued by the time 90% of the work is completed, it is agreed that 17.00% of amount shall be recovered from each gross running bill of the Contractor so as to ensure that the entire advances along with interest is recovered by the time 90% of the work is completed."

In the cross-examination it is evidence of PW.1 in page Nos.18 and 19 as under:

"It is true to suggest that the defendant corporation had agreed to limit interest for advance given to the plaintiff Company to the extent of 108.70 lakhs. I tis true to suggest that at the time of supplementary agreement the defendant 21 Com.O.S.No.423/2004 corporation has provided secured advance of Rs.125 crores against the bank guarantee. It is true to suggest that by accepting the packages given in the supplementary agreement plaintiff company recommenced the work."

In the cross-examination it is evidence of PW.1 that plaintiff had the machinery to carry out the project. In view of the above noted clause of the agreement and oral evidence of PW1, there are no materials to hold that defendant also defaulted in furnishing mobilization advance and advance towards purchase of machinery.

16. Another delay factor stated by the plaintiff in the plaint is that during the period between October 1990 to February 1991, on account of the war broke out in Persian gulf, there was scarcity of diesel and other petroleum products. This fact is admitted by DW.1 in page-8 of the cross- examination as "It is true that between October 1990 and February 1991, petrol, diesel and products of petroleum were not available due to Persian Gulf war. There is no fault during that period if plaintiff was unable to carry out the work." Thus, the gulf war during the period from October 1990 to February 1991 is admitted by DW.1 and the said gulf war resulted in scarcity of diesel and other petroleum products resulting in machinery and vehicles not being capable of utilised to the maximum extent.

17. Another delay factor stated by the plaintiff is that the defendant had allotted only one stone quarry to the plaintiff which failed to produce adequate rock. Relating to this contention of the plaintiff is concerned, it is 22 Com.O.S.No.423/2004 relevant to note that it is submission of learned advocate for plaintiff that DW.1 in his cross-examination in page No.8 has admitted that defendant had given stone quarry to the plaintiff. But, DW.1 has denied the suggestion that there were no sufficient rocks in the stone quarry. Further it is submission of learned advocate for plaintiff that plaintiff wrote letter as per page No.28 of Ex.P.4 Agreement explaining non-availability of sufficient stones in the stone quarry and problem for identifying additional suitable quarries.

18. On the other hand, it is submission of learned advocate for defendant that under the agreement there was no obligation on the defendant to ensure the stone quarry available. Plaintiff was supposed to identify the quarry, pay royalty to the State and mine the stones. The defendant's obligation was to pay transportation charges of stones/sand to the plaintiff if a new quarry was chosen by the plaintiff. If there was over burden, the plaintiff had to find alternative quarry. But, plaintiff did not do so.

19. It is pertinent to note that Clause-3.2.12 of the agreement reads as under:

"Map showing the quarries for stone and sand is enclosed. The leads for stone and sand quarries are as indicated in the quarry map enclosed (attention is drawn to lead statement in the quarry map). The contractor shall take into account these leads in quoting his rates. If these quarries are found inadequate and if it is necessary to exploit fresh quarries involving extra lead beyond 23 Com.O.S.No.423/2004 the leads indicated, extra lead charges for materials brought from such quarries will be made at prevailing KPC schedule of rates."

From the above clause of the agreement it is clear that map was furnished by the defendant to the plaintiff showing the quarries for stone and sand and also the leads for stone and sand quarries which were required to be taken into account by the contractor in quoting its rates and if those quarries were found inadequate and it was necessary to exploit fresh quarries, then contractor was entitled for extra lead charge only. It was the obligation of the contractor/plaintiff to find alternative or fresh quarry if the quarries shown by the defendant are found inadequate. Therefore, there are no materials to hold that the defendant failed to allot quarry to produce sufficient rock aggregate. For these reasons, Issue No.1 is answered partly in the affirmative relating to plaint para No.5(a) & (d) only.

20. Issue No.2 : It is contended in para No.7 of the plaint that defendant failed to make a firm commitment in respect of the claims of the plaintiff. Through letter dated 25.3.1994, the defendant has agreed to :

(a) Extend the time for completion till the end of March 1996

(b) To pay revised rates

(c) To recover cost of materials and royalty charges at varied rates

(d)To adopt different indices in the formula in calculating escalation cost.

(e) To adopt base date 1.8.1993 for escalation on power tariff.

(f) To release payment for the work done from 1.4.93 to 31.7.1993.

(g) To settle the claims of the plaintiff within a reasonable time.

(h) To enter into Supplementary agreement.

Accordingly Supplementary Agreement was entered into on 7.12.1994. However, by the end of December 1995, work could not be completed on 24 Com.O.S.No.423/2004 account of several reasons beyond the control of the plaintiff and plaintiff explained the same in its letter dated 21.12.1995 and those reasons are:

(a) Delay in handing over Power Blocks to enable the plaintiff to execute further works.

(b) The plaintiff was prevented by the defendant from concreting and raising several Blocks due to delay in execution of work by role of these agencies.

(c) Delay in erection of embedded parts by another contractor engaged by the defendant in respect of the works.

(d) Postponement of erection of sluice gates from February 1996 to May 1996 at the instance of the defendant.

(e) Constant power shut down and loan shedding during November 1995.

(f) Shortage of Cement.

(g) Non-supply of construction drawings in time.

(h) Non-availability of quick rock for preparation of aggregate for concreting etc.

21. It is contended in the notes of argument of learned advocate for the plaintiff that letter dated 25.3.1994 is a part of Ex.p.4 which is not in challenge. The paragraph No.7 of the plaint states what is stated in the letter dated 25.3.1994. Since this letter is accepted, entire para No.7 of the plaint stands admitted. Para No.7 of the plaint states several reasons regarding certain lapses of defendant which are partly admitted in para No.12 of the written statement. Extension of time upto March 1996 with revised rates being payable is admitted fact. Para No.7(c) & (d) as well as Para No.11(a) to (g) of the plaint are overlapping each other. Accordingly learned advocate for plaintiff has requested to answer Issue No.2 in the 25 Com.O.S.No.423/2004 Affirmative.

22. As could be seen from plaint averments, Para No.7(c) & (d) of page No.6 of the plaint are overlapping with para No.11(a) to (g) of the plaint and this is admitted in para No.16 of notes of argument of learned advocate for plaintiff. Not only this, several claims of the plaintiff are overlapping in several paras of the plaint. The submission of learned advocate for plaintiff that defendant has admitted claim in para No.7 of the plaint is not correct. The admission of defendant in para No.12 of the written statement is relating to Supplementary Agreement dated 7.12.1994 was entered into for extension of time and for revised rates etc., only. The defendant has denied and disputed delay factors attributable to it, as narrated in page No.7 of the plaint. Plaintiff has not furnished details of delay facts stated in (a) to (h) of page No.7 of the plaint.

23. As noted above, delay factor stated by the plaintiff in para-7 are detailed in page-7 of the plaint. Among them delay factor No.(a) stated in page-7 of the plaint is delay in handing over Power Blocks to enable the plaintiff to execute further works. Relating to this delay factor is concerned, it is relevant to note that there is no specific pleading and proof of the plaintiff as to on which date defendant was required to handover Power Blocks and when it was handed over to it and how many days delay was caused for supply of Power Blocks etc. In the cross-examination of DW.1, there are no much details elicited to show that there was delay in 26 Com.O.S.No.423/2004 handing over of Power Blocks. Therefore, there are no materials to hold that there was delay caused by the defendant in handing over Power Blocks which is shown in page-7 (a) of the plaint.

24. Delay factor stated in page-7(b) of the plaint is that the plaintiff was prevented from concreting and raising several Blocks due to delay in execution of works by role of other agencies. The delay factor stated in para-7(c) is that the delay in erection of embedded parts by another contractor engaged by the defendant in respect of the works. Relating to these two delay factors stated in page-7(b) & (c) of the plaint is concerned, it is relevant to note that in the cross-examination at page-11, it is the evidence of DW.1 as under:

"It is true that work entrusted to the plaintiff was associated to the work given to the other contractors. It is true that the work of the plaintiff was also depended upon the work done by the other contractors. It is true that as other contractors had not done the work, the plaintiff also could not carry on the works entrusted to it. It may be true that there was substantial delay in that regard."

Further, in the cross-examination at page-13, it is evidence of DW.1 as "Time was extended because other contractors had not completed the work in time". Further in the cross-examination at page-16, it is evidence of DW.1 as "It is true that plaintiff was not permitted to raise Block No.12, 13 & 14 due to construction by other agencies."

25. The above noted oral evidence of DW.1 clearly proves the 27 Com.O.S.No.423/2004 contention of the plaintiff that plaintiff was prevented from executing concreting and raising several Blocks and also erection of embedded parts due to delay in execution of works by other agencies. Thus, plaintiff has proved delay factors stated in page-7(b) & (c) of the plaint.

26. Delay factor stated in page-7(d) of the plaint is postponement of erection of sluice gates from February 1996 to May 1996 by the defendant. DW.1 in his cross-examination at page-19 has admitted this fact as under:

"It is true that we have not permitted the plaintiff to do the said work till May'1996."

Due to this admission of DW.1, plaintiff has proved delay factor shown in page-7(d) of the plaint.

27. Delay factor stated in page-7(e) of the plaint is constant power shut down and load shedding during November 1995. In the cross- examination at page-12 of DW.1, suggestions were put to the effect that there was load shedding for four hours per day between 6.11.1995 to 17.11.1996 and due to load shedding there was delay in carrying out work by the plaintiff. DW.1 has expressed his ignorance relating to these suggestions. Except putting these suggestions for which DW.1 has expressed his ignorance, there are no other useful material brought out in the oral evidence of DW.1 to show power shut down and load shedding during February 1995. There are no reliable records produced by the plaintiff to prove this delay factor shown in page-7(e) of the plaint.

Com.O.S.No.423/2004

28. Delay factor stated in page-7(f) of the plaint is shortage of cement. In the cross-examination it is evidence of DW.1 at page-10 as under:

"We agreed to supply cement to the plaintiff. It may be true that between 16.2.1996 to 16.3.1996 we supplied 170 MT of cement to the plaintiff. It may be true that the said supply of cement was not sufficient. It may be true that plaintiff has repeatedly requested the defendant to supply sufficient quantity of cement. It may be true that we have not supplied sufficient quantity of cement to the plaintiff."

The above noted admission of DW.1 clearly supports the delay factor shown in page-7 (f) of the plaint.

29. Delay factor shown in page-7(g) of the plaint is not supply of construction drawings in time. DW.1 in his cross-examination has denied this delay factor. DW.1 has specifically denied that there was delay in supply of construction drawings to the plaintiff. There are no other materials to hold that there was delay in supply of construction drawings in time to the plaintiff.

30. Another delay factor shown in page-7(h) of the plaint is that non- availability of quality rock for preparation of aggregate for concreting etc. This delay factor shown in page-7(h) is overlapping with delay factor shown in para-5(e) of the plaint. For the reasons given in para Nos.17 to 19 of this judgment, while considering the delay factor shown in para-5(e) of the plaint, plaintiff has failed to prove the delay factor shown in page-

Com.O.S.No.423/2004 7(h) of the plaint. For these reasons, this Issue No.2 is answered partly in the Affirmative, relating to delay factors shown in para-7(b),(c), (d) & (f) only.

31. Issue No.3 : Letter dated 25.3.1994 sent by the defendant to the plaintiff is in page-33 & 34 of the Supplementary Agreement at Ex.P.4. This letter is also part of Supplementary Agreement. It was agreed by the defendant in the said letter. Clause No.(e) is as under:

(e) To adopt the base date for erection of power tariff as 31.3.1993 in respect of works done from1.4.1993 to 31.7.1993 and as 1.8.1993 in respect of works to be done from 1.8.1993."

In the cross-examination at page-9 though DW.1 has denied the suggestion that plaintiff has suffered loss to the extent of Rs.75 lakhs towards increased power tariff of KEB, still it is admission of DW.1 in the last para of same page No.9 as "It is true that KEB has increased the tariff from August 1993. We have agreed to pay increased rates to the plaintiff ". It is evidence of PW.1 in his cross-examination at para No.32 as under:

"32. It is true to suggest that as per the Supplementary Agreement between the plaintiff and defendant for the work done beyond 1.8.1993, base date for escalation of power tariff is 1.8.1993. It is true to suggest that taking the base date as 1.8.1993, the amount is calculated and paid to the plaintiff for the work done beyond 1.8.1993."

Due to the above noted Clause-(e) of the letter dated 25.3.1994 at Page Nos.33 & 34, which is part of Supplementary Agreement at Ex.P.4 and due to above noted admission of DW.1 and also evidence of PW.1, it is clear 30 Com.O.S.No.423/2004 that defendant had agreed for the escalation of power tariff dated 1.8.1993 in respect of works done after 1.8.1993 and it was also paid accordingly. For these reasons, Issue No.3 is answered in the 'Affirmative'.

32. Issue Nos. 4 to 7 : These issues are inter related to each other and finding of any one issue will have bearing effect on the other issues. As noted above, delay factors stated in para Nos. 5,7,11,12 & 19 of the plaint are overlapping with each other. The claim made by the plaintiff in para- 19 of the plaint is based on the alleged delay factors stated in para-5,7,11 and 12 of the plaint. Therefore, consideration of these Issue Nos.4 to 7 require consideration of common factors and evidence. In order to avoid repetition of facts and evidence, I have taken up these issues together for consideration.

33. Plaintiff has made claim for Rs.1227.53 Lakhs under different headings in para-19 of the plaint due to the delay factors shown in para Nos.5,7,11 & 12 of the plaint. Delay factors narrated in para-5 of the plaint are already narrated and discussed in this judgment under Issue No.1. Similarly delay factors shown in para No.7 of the plaint are already narrated and discussed in this judgment under Issue No.2. Delay factors shown in para-11 of the plaint are : (a) power failures, (b) delay in handing over works by other agencies, (c) not being allowed to block the construction sluices, (d) delay in release of construction drawings, (e) delay in raising of other Blocks, (f) short supply of cement, and (g) non-

Com.O.S.No.423/2004 availability of funds. Plaintiff has made claim No.(i) of para-19 of the plaint for Rs.363.83 lakhs towards delay in handing over site enabling works and other concerned connected works. This claim is based on the delay factors stated in para-11 (a) to (g) of the plaint. Similarly, delay factors stated in para-12 of the plaint are: (a) recovery of variation in cement for which claim is made for Rs.10 Lakhs in para No.19(x) of the plaint, (b) Reinforcement used for construction of sluices for which claim is made in para No.19(vii) of the plaint for Rs.65.08 Lakhs, (c) Additional lead distance to quarry, for which claim is made in para-19(ii) of the plaint for Rs.62.08 Lakhs, (d) Short weight of steel, for which claim is made in para-19(xi) of the plaint for Rs.23.87 Lakhs, (e) Cement used for mortar for which no claim is made in para-19 of the plaint, (f) Water extraction of sand for which no separate claim is made in para-19 of the plaint and (g) Construction of coffer dams during 1994-95 for which claim is made in para 19(v) of the plaint for Rs.21.26 Lakhs.

34. So far claim made in para-19(i) of the plaint is concerned , it is relevant to note that plaintiff has made this claim for Rs.363.83 Lakhs towards delay in handing over site enabling works and other concerned connected works. It is argument of learned advocate for plaintiff and it is also contended in his notes of argument that the delay in handing over site enabling works and other connected works are clearly pleaded in para-5(a) to (e), Para-7, para-11(a) to (g) of the plaint. PW.1 has clearly deposed in 32 Com.O.S.No.423/2004 this regard in para-5(a) to (e), Para-7, para-11(a) to (g) of the chief examination affidavit. This claim No.(i) in para-19 of the plaint is partly covered in Issue No.1. It is pleaded in para-6 of the plaint that plaintiff suffered huge loss due to delay and plaintiff has proved that there was delay. Further it is submission of learned advocate for plaintiff that DW.1 has admitted in page-20 of his cross-examination that work was completed on 15.6.1997. Factually the work was to be completed by 31.3.1993, as found in page-1 of Ex.P.4. Thus, there was delay of 4 years and three months during which period the rates had gone up and plaintiff has to be compensated. It is pleaded in para-7 of the plaint that certain lapses which are partly admitted in para-12 of the written statement. Entire thing is found at page-33 of Ex.P.4 which has not been challenged by the defendant. Accordingly, it is submission of learned advocate for plaintiff that plaintiff is entitled to recover Rs.363.85 lakhs from the defendant towards delay in handing over site enabling works and other concerned connected works as claimed in para-19(i) of the plaint.

35. On the other hand, it is submission of learned advocate for defendant and it is also contended in his notes of argument that the plaintiff is not entitled to claim any loss, damages or compensation towards any delay in view of various clauses of the contractual agreement.

36. After having heard both sides in this regard, I have carefully gone through the materials on record and various clauses of original/first 33 Com.O.S.No.423/2004 agreement dated 22.12.1989 at Ex.P.3. It is relevant to note that it is necessary to go through the relevant clauses of the agreement at Ex.P.3 to find out as to whether plaintiff is entitled to make this claim shown in para- 19(i) of the plaint on the ground of delay. Clause-15 of this agreement reads as under:

"CLAUSE 15: NO CLAIM TO ANY PAYMENT OR COMPENSATION FOR ALTERATIONS OR RESTRICTION OF WORK;

(I) If at any time after the execution of the contract documents, the competent authority shall, for any reason whatsoever, require the whole or any part of the work as specified in the tender, to be stopped for any period or shall not require the whole or part of the work to be carried out at all or to be carried out by the contractor, he shall give notice in writing of the fact to the contractors, who shall thereupon suspend or stop the work totally or partially as the case may be. In any such case, except as provided hereunder, the contractor shall have no claim to any payment of compensation whatsoever on account of any profit or advantage which he might have derived from the execution of the work in full but which he did not so derive, in consequence of the full amount of the work not having been carried out, or on account of any loss that he may be put to on account of materials purchased, or for unemployment of labour recruited by him. He shall not also have any claim for compensation by reason of any alterations having been made in the original specifications, drawings, designs and instructions which may involve any curtailment of the work as originally contemplated. He shall not also have any claim for compensation by reason of any delay caused to him by the reasonable difficulties encountered by the other contractors in the execution of their portion of the work 34 Com.O.S.No.423/2004 who are to co-ordinate their work with his work."

In the same way, it is also necessary to note Clause-16 of the agreement at Ex.P.3, which is relevant to decide the claim made by the plaintiff in para- 19(i) of the plaint and the said Clause-16 of the agreement is as under:

"CLAUSE-16 : NO CLAIM TO COMPENSATION ON ACCOUNT OF LOSS DUE TO DELAY IN SUPPLY OF MATERIAL BY THE CORPORATION:

The contractor shall not be entitled to claim any compensation from the corporation for the loss suffered by him on account of delay by the corporation in the supply of materials entered in schedule 'A'.

In the case of such delay in the supply of materials, the corporation shall also grant such extension of time for the completion of the work as shall appear to Divisional Engineer or other competent authority to be reasonable in accordance with the circumstances of the case. The decision of the Divisional Engineer or other competent authority as to the extension of time shall be accepted as final by the contractor."

In the same way, it is also necessary to note Clause-37 & 38 of the agreement at Ex.P.3, which are relevant to decide the claim made by the plaintiff in para-19(i) of the plaint and the said Clause-37 & 38 of the agreement reads as under:

"CLAUSE-37: CLAIM OR COMPENSATION FOR DELAY IN STARTING THE WORK:

No compensation shall be allowed for any delay caused in the 35 Com.O.S.No.423/2004 starting of the work on account of acquisition of land or in the case of clearance works on account of any delay in according sanction to estimates.

CLAUSE-38: CLAIM FOR COMPENSATION FOR DELAY IN THE EXECUTION OF WORK:

No compensation shall be allowed for any delay in the execution of work on account of water standing in borrow pits or compartments. The rates are inclusive for hard or cracked soil, excavation in mud, sub-soil water, or water standing in borrow pits and no claim for an extra rate shall be entertained unless otherwise expressly specified."

As per the above noted Clause-15 of the Agreement at Ex.P.3, the Contractor is not entitled to claim any payment or compensation for any delay caused to him by the reasonable difficulties encountered by the other contractors in the execution of their portion of the work and further contractor is not entitled to claim compensation for any alterations made in the original specifications, drawings, designs and instructions involving any curtailment of the work as originally contemplated. Further, contractor is not entitled to claim any compensation for total or temporary stoppage of work made by the employer/KPCL after giving notice to the Contractor. As per the above noted Clause-16 of the Contractual Agreement at Ex.P.3, the Contractor is entitled for extension of time only and not entitled to claim any compensation for the loss suffered to him on account of delay by the KPCL in supply of materials entered in schedule-A. As per the above noted 36 Com.O.S.No.423/2004 Clause-37 of the Agreement at Ex.P.3, Contractor is not entitled to claim compensation for any delay caused in the starting of the work on account of acquisition of land or in the case of clearance of works on account of any delay in according sanction to estimates. As per above noted Clause-38 of the Agreement at Ex.P.3, contractor shall not be allowed to claim compensation for any delay in the execution of work on account of water standing in borrow pits or compartments.

37. It is relevant to note that supplementary agreement dated 7.12.1994 as per Ex.P.4 was entered into between the parties extending time with revised rates as shown in it. Para Nos.2 & 3 in page No.3 of Supplementary Agreement at Ex.P.4 are as under:

"Whereas, in all other respects, the definitions contained and terms & conditions specified in the original agreement shall continue to be in force, effect and binding on the parties hereto.

This agreement is supplementary to the original Agreement dated 22.12.1989 for the construction and completion of all the balance works of construction of Kadra Concrete Dam with Appurtenant works Reach.II of Kadra Dam as per the revision of rates, quantities, terms and conditions as stipulated herein beyond the original contract period. There shall be no further revision of rates/claims till completion of balance works in all respects."

In view of the above noted terms in page No.3 of Ex.P.4, the Clause Nos.15,16,37 and 38 of the original Agreement at Ex.P.3, which are noted 37 Com.O.S.No.423/2004 supra, shall continue to be in force. After considering carefully the above noted clause of original Agreement at Ex.P.3 and more particularly by considering Clause-37 of Ex.P.3, plaintiff/contractor is not entitled to claim compensation on the ground of delay in handing over site enabling works and other concerned connected works. Therefore, plaintiff is not entitled to recover Rs.363.83 Lakhs as claimed in para No.19(i) of the plaint.

38. Relating to the claim made by the plaintiff in para-19(ii) of the plaint is concerned, it is relevant to note that plaintiff has made this claim for Rs.62.08 Lakhs towards excessive over burden and inadequate quality rock in the stone quarry made available. It is submission of the learned advocate for the plaintiff and it is also contended in his notes of argument that para- 5(e) of the plaint deals with inadequate quantity rock in the stone quarry and plaintiff has given his evidence in this regard in page No.3 last para(e) of chief examination affidavit. There was no suggestion that there was quality rock or the allegation is ill founded. DW.1 in his cross-examination at page-8 has admitted that one quarry was given to the plaintiff. But he has denied the suggestion that there was no sufficient rock in the said stone quarry. Factually, stone quarry was allotted, but there were no sufficient rocks in it. Plaintiff has narrated this fact by sending letter which is page- 28 of Supplemental Agreement at Ex.P.4. This letter has not been challenged by the defendant. Accordingly learned advocate for plaintiff has requested to allow this claim shown in para-19(ii) of the plaint.

Com.O.S.No.423/2004

39. On the other hand, it is submission of the learned advocate for defendant and it is also contended in his notes of argument that there was no obligation on the defendant to ensure that stone quarry is made available. Plaintiff was supposed to identify the quarry, pay royalty to the State and mine the stones. Defendant was obliged to only pay the lead charges i.e., the charges for transportation of stones/sand if a new quarry is chosen by the plaintiff. The cost of stones is included in the schedule-B items. Hence, if there was over burden, the plaintiff had to find alternative quarry, which the plaintiff did not do. Accordingly learned advocate for defendant has requested to reject this claim made by the plaintiff in para- 19(ii) of the plaint.

40. Delay factor stated in para-5(e) of the plaint is that defendant had allotted only one stone quarry to the plaintiff which failed to produce adequate rock and therefore plaintiff has suffered loss. This delay factor which is stated by the plaintiff in para-5(e) of the plaint, is already considered, discussed and recorded finding in para-17 to 19 of this judgment. As observed in para-19 of this judgment, the map was furnished by the defendant to the plaintiff showing the quarries for stone and sand and also the leads for stone and sand quarries which were required to be taken into account by the contractor in quoting its rates and if those quarries were found inadequate and it was necessary to exploit fresh quarries, then the contractor was entitled for extra lead charge only. It was the obligation 39 Com.O.S.No.423/2004 of the contractor/plaintiff to find out alternative or fresh quarry if the quarries shown by the defendant were found inadequate. Therefore, there are no materials to hold that the defendant failed to allot quarry to the plaintiff to produce sufficient rocks.

41. Apart from the above, it is also relevant to note that PW.1 in his cross-examination at page-28 has admitted as under:

"28. It is true to suggest that from the quarry till dam construction area the distance was about 3 km. It is true to suggest that as per the distance being agreed as 3 km., calculation is done and amount is paid. It is true to suggest that till 1991 when the embankment was raised, the plaintiff construction company made use of 3 km. Lead distance. It is true to suggest that when the embankment was raised, to reach the dam construction area, we had to use the highways and cover the lead distance to the extent of 7 km., that means the lead distance was 7 km. From the year 1989 i.e., commencement of contract work till 1991 we used 3 km lead distance. That means the lead distance was 3 km. It is true to suggest that after construction of the embankment, as we had to cover the lead distance of 7 km, the computation was made and Rs.10 Lakhs additional cost was paid by the defendant towards additional lead distance."

From the above admissions of PW.1, it is clear that as per the terms of the agreement, defendant considered extra lead distance and made additional payment of Rs.10 lakhs to the plaintiff towards extra lead distance. Either in the plaint or in the oral evidence of PW.1, there are no details furnished showing calculation so as to the claim amount of Rs.62.08 Lakhs as shown in para-19(ii) of the plaint towards excessive over burden and inadequate 40 Com.O.S.No.423/2004 quality rock in the stone quarry. Therefore, plaintiff is not entitled for this claim shown in para-19(ii) of the plaint.

41. So far as Claim made by the plaintiff in para No.19(iii) of the plaint is concerned, it is relevant to note that plaintiff has made this claim for Rs.113.07 Lakhs towards interest recovered as ad hoc advance with interest. It is submission of learned advocate for plaintiff that defendant had agreed in the supplementary agreement to release additional ad hoc advance of Rs.125 Lakhs. Defendant had assured that this amount would not carry interest and this advance would be adjusted against the claim of the plaintiff, which was outstanding in a sum of Rs.426 lakhs or in the alternative, recovered with simple interest at the rate of 21.25% p.a., after expiry of 31.3.1995. But, contrary to this assurance, defendant recovered this advance amount with interest and rejected the claims of the plaintiff without assigning any reasons. Accordingly it is submission of learned advocate for plaintiff that plaintiff is entitled for this claim shown in para No.19(iii) of the plaint.

42. On the other hand, it is submission of learned advocate for defendant that Clause Nos.5.1.02 to 5.1.04 are governing clauses relating to the advances. Neither there is documentary evidence nor calculation produced by the plaintiff to show how the amount of Rs.113.07 Lakhs has been arrived at. This claim of the plaintiff is contrary to the contractual clauses. Recovery of advances was agreed in Supplementary Agreement.

Com.O.S.No.423/2004 Plaintiff has not protested the deduction of the amounts from the running bills. PW.1 in his cross-examination at para-33 has accepted that the defendant was entitled to claim interest on the advances made by it. Accordingly it is submission of learned advocate for defendant that plaintiff is not entitled to the claim shown in para No.19(iii) of the plaint.

43. After having heard both sides relating to this claim shown in para No.19(iii) of the plaint, I have gone through the materials on record. It is relevant to note that last para of page No.2 of Supplementary Agreement at Ex.P.4 is as under:

"Whereas, the KPCL had agreed to limit the interest on advances given to the contractor to the extent of Rs.108.07 lakhs and as the Contractor has to return the amount of advance outstanding along with interest accrued by the time 90% of the work is completed, it is agreed that 17.00% of amount shall be recovered from each gross running bill of the Contractor so as to ensure that the entire advances along with interest is recovered by the time 90% of the work is completed."

As per this Clause in the Supplementary Agreement, defendant had agreed to limit interest on the advance given to the Contractor to the extent of Rs.108.07 lakhs and Contractor had agreed to return advance outstanding with interest by the time 90% of the work is completed and it was agreed 17% of the amount shall be recoverable from each gross running bill of the Contractor.

44. In the last lines of page No.16 of the cross-examination, it is evidence of DW.1 as "It is true that we have recovered interest of Rs.113.07 42 Com.O.S.No.423/2004 lakhs, but it is not loss to the plaintiff but we are entitled to collect." From this type of evidence of DW.1, it cannot be held that plaintiff is entitled to recover back this amount of Rs.113.07 lakhs from the defendant for the reasons that apart from this oral evidence of DW.1, there are no documentary evidence placed by the plaintiff to show that defendant has recovered interest illegally and contrary to the terms of contract. There is no calculation produced to show as to how the amount of Rs.113.07 lakhs has been arrived at. If it is the say of plaintiff that the total interest recovered is Rs.113.07 lakhs and that has to be reimbursed, then it is contrary to the contractual clauses as rightly submitted by the learned advocate for defendant. There is nothing placed to show plaintiff has protested the deduction of the amounts from the running bills. Such recovery in the running bill was agreed in the Supplementary Agreement. Apart from this, it is evidence of PW.1 in para No.33 page Nos.28 and 29 as under:

"33. It is true to suggest that defendant could have recovered the advance and interest from the plaintiff from all the bills so raised. It is true to suggest that the defendant in the supplementary agreement has restricted the claim of the interest to Rs.108.7 lakhs though it was entitled to claim 15% simple interest. It is true to suggest that at the time of entering into supplementary agreement the concession so stated above was given to the plaintiff by the defendant, it was one of the concession. It is true to suggest that at the time of entering into supplementary agreement, the defendant has made an advance of Rs.125 lakhs as an ad-hoc advance. It is false to suggest that this providing ad-hoc advance was also one of the concession 43 Com.O.S.No.423/2004 given by the defendant to the plaintiff. Witness says that it is a part of the agreed contract. It is true to suggest that the defendant was entitled to recover the entire advance amount and along with interest by the time 90% of the contract work is completed. It is true to suggest that the defendant has recovered the entire advance amount along with interest by the time 90% of the work was completed."

This evidence of PW.1 shows that though defendant had restricted the claim of interest to Rs.108.07 lakhs in the supplementary agreement, but defendant released an advance of Rs.125 lakhs to the plaintiff at the time of entering into supplementary agreement and the defendant has recovered advance amount with interest by the time 90% work was completed. Therefore, there are no materials to hold that defendant has illegally and contrary to the contractual clauses, had recovered interest on advances. Hence, plaintiff is not entitled to recover the amount shown in para No.19

(iii) of the plaint.

45. So far as claim made in para No.19(iv) of the plaint is concerned, it is relevant to note that plaintiff has made this claim for Rs.72.95 lakhs towards reimbursement of excess power tariff from August 1993. It is submission of learned advocate for plaintiff that as per page No.41 of original contract at Ex.P.3, price escalation is payable towards increase in the rate of labour, material and petroleum products. It is admission of DW.1 in his cross-examination at Page Nos.9 & 10 that KEB has increased the tariff from August 1993 and the defendant had agreed to pay increased 44 Com.O.S.No.423/2004 rates of the tariff to the plaintiff. Further it is also submission of learned advocate for plaintiff that even defendant had agreed in the Supplementary Agreement at Ex.P.4 to pay escalation on power tariff from 1.8.1993. Plaintiff has made this claim No.19(iv) for Rs.75.95 lakhs towards power tariff increased from August 1993. Accordingly it is submission of learned advocate for plaintiff that plaintiff is entitled for this claim made in para No.19(iv) of the claim.

46. On the other hand, it is submission of the learned advocate for defendant that increased power tariff from 1.8.1993, as agreed between the parties, was already paid to the plaintiff and this fact has been clearly admitted in para No.32 of the cross-examination of PW.1 and therefore plaintiff is not entitled for this claim made in Para No.19(iv) of the plaint.

47. After having heard both sides relating to this claim made by the plaintiff in para No.19(iv) of the plaint, I have carefully gone through the relevant clause of Supplementary Agreement at Ex.P.4 and the evidence deposed by PW.1 in his cross-examination at para No.32.

48. The letter dated 1.4.1994,which is page Nos.35 to 39 of Supplementary Agreement at Ex.P.4, which is signed by both parties, is part of Supplementary Agreement at Ex.P.4. Para No.2 of this letter is as under:

"2) Escalation on power tariff:

In para(e) of your letter, the base date for escalation on 45 Com.O.S.No.423/2004 power tariff as 31/3/03 in respect of works done from 1.4.93 to 31.7.93 is correctly communicated. But for the works to be done from 1.8.93 the base date for escalation on power tariff should be prior to 1.8.93. Hence, the base date for escalation on power tariff should be 31.7.93 in respect of works to be done beyond 1.8.93."

In the cross-examination at page No.9 it is evidence of DW.1 as "It is true that KEB has increased the tariff from August 1993. We have agreed to pay increased rates to the plaintiff. It is false to suggest that plaintiff has suffered loss to the extent of Rs.75 Lakhs towards increased KEB tariff" . Thus, it is undisputed fact between the parties that KEB had increased the power tariff from August 1993 and defendant had agreed to pay increased rates of the power tariff to the plaintiff. It is important to note that PW.1 in his cross-examination at para No.32 in page No.28 has deposed as under:

"32. It is true to suggest that as per the Supplementary Agreement between the plaintiff and defendant for the work done beyond 1.8.1993, base date for escalation of power tariff is 1.8.1993. It is true to suggest that taking the base date as 1.8.1993, the amount is calculated and paid to the plaintiff for the work done beyond 1.8.1993."

Thus, it is admission of PW.1 that defendant has already calculated the power tariff by taking the base date as 1.8.1993 and has paid the amount to the plaintiff for the work done beyond 1.8.1993. It is relevant to note that it is the claim of the plaintiff in para No.19(iv) of the plaint for recovery of Rs.72.95 Lakhs. Whereas in para No.56 of the notes of argument, it is 46 Com.O.S.No.423/2004 submission of learned advocate for plaintiff that defendant is liable to pay Rs.75 Lakhs towards increased power tariff from August 1993. Whereas in the cross-examination of DW.1, at page No.9 it was suggested that plaintiff has suffered loss to the extent of Rs.75 Lakhs towards increased KEB tariff. There are no acceptable records produced by the plaintiff to show that defendant has not paid increased power tariff beyond 1.8.1993. As noted above, it is admission of PW.1 that defendant has calculated the increased power tariff by taking the base date as 1.8.1993 and has paid this increased power tariff to the plaintiff. Therefore, the plaintiff is not entitled to recover this claim shown in para No.19(iv) of the plaint.

49. So far as claims made by the plaintiff in para-19(v), (vi), (vii) & (viii) are concerned, it is relevant to note that plaintiff has made claim for Rs.21.26 lakhs in para-19(v) of the plaint towards expenses on construction of Coffer dam during 1994-05. Further plaintiff has made claim for Rs.5.10 lakhs in para-19(vi) of the plaint towards additional expenses of de-watering during 1994-95. Further plaintiff has made claim for Rs.65.08 lakhs in para-19(vii) of the plaint towards reinforcement steel used in construction of two additional sluices. Further plaintiff has made claim for Rs.18.65 lakhs in para-19(viii) of the plaint towards construction of two additional sluice gates. Two claims made in para No.19(vii) & (viii) are nothing but one and the same.

50. It is submission of learned advocate for plaintiff and it is also 47 Com.O.S.No.423/2004 contended in his notes of argument that it is pleaded in the plaint that plaintiff was compelled to construct Coffer dam and this fact has not been denied by the defendant. In the cross-examination at page-19 it is admission of DW.1 that plaintiff had constructed Coffer dam for the 2 nd time. DW.1 has expressed his ignorance to the suggestion that plaintiff had spent Rs.31.26 lakhs for construction of Coffer dam. Therefore, plaintiff is entitled for the claim shown in para-19(v) of the plaint. Further, it is also submission of the learned advocate for plaintiff that it is clearly pleaded in para-12(f) of the plaint relating to water extraction. Even PW.1 in his examination in chief has clearly deposed in this regard. This fact has not been disputed by the other side. It is admitted by the defendant that payment for this work has not been made. Therefore, plaintiff is entitled for the claim made in para-19(vi) of the plaint. Further it is also submission of learned advocate for plaintiff that regarding reinforcement steel for additional sluices, there is clear pleading in para-12(b) of the plaint and also there is evidence of PW.1 at page-11(b) of the chief examination. Plaintiff was required to reinforce the construction sluices during the execution of the work. In the specification of schedule-B item No.20 included "Sluices" as a payable item. There is no cross-examination of PW.1 regarding this matter is concerned. DW.1 in his cross-examination in page-10 has admitted that plaintiff was to reinforce construction sluices and this work was done by the plaintiff. Further he has admitted that 48 Com.O.S.No.423/2004 defendant has not paid amounts to the plaintiff for this work. DW.1 has expressed his ignorance to the suggestion that plaintiff has spent Rs.65.08 lakhs towards reinforcement steel used in constructing two additional sluices. Further it is evidence of DW.1 that defendant is not liable to pay the said amount. Further in the cross-examination at page-6 it is evidence of DW.1 that there was short supply of reinforcement rods to the tune of 126 MT and as such, plaintiff has suffered loss. Accordingly it is submission of learned advocate for plaintiff that plaintiff is entitled for claim made in para-19(vii) of the plaint.

51. Further, it is also Submission of learned advocate for plaintiff that the claim of the plaintiff towards construction of additional sluice gates is pleaded in para-9(c) as well as para-12(b) & (d) of the plaint and this sluice gate is payable item as per the specification of schedule-B item-20. There is evidence of PW.1 in this regard in page-9 as well as page-12(b) & (d) of the chief examination and there is no effective cross-examination of PW.1 relating to this claim is concerned. Further, it is also submission of learned advocate for plaintiff that DW.1 has expressed his ignorance to the suggestion that plaintiff has spent Rs.18.65 Lakhs towards construction of additional sluice gates. However, it is is further evidence that defendant is not liable to pay the said amount. Accordingly it is submission of learned advocate for plaintiff that plaintiff is entitled for claim made in para- 19(viii) of the plaint.

Com.O.S.No.423/2004

52. It is submission of learned av for defendant and it is also contended in his notes of argument that coffer dam construction written statement part of the main dam construction. Coffer dam is a temporary structure made to stop the flow of water. It is covered under the item of Site Clearance and River Diversion in the Contract. PW.1 has admitted that a separate estimate in respect of construction of coffer dam has been made by the plaintiff and the amount in that regard has already been received. Further it is submission of learned advocate for defendant relating to claim of plaintiff towards de-watering that de-watering was covered under the item Site Clearance & River Diversion. PW.1 has admitted that he received the amounts towards de-watering. Further, it is submission of learned advocate for defendant relating to claim of plaintiff towards construction of two additional sluice gates by using reinforcement steel that construction of sluices was part of river water diversion works and same was not paid separately. All items used for the same were included in that cost. Payment to the steel was made on weight basis as per the terms of contract and this fact is admitted by PW.1. Accordingly it is submission of learned advocate for defendant that plaintiff is not entitled for the claims made in para Nos.19(v) to (viii) of the plaint.

53. After having heard both sides relating to claims made in Para Nos.19(v) to (viii) of the plaint, I have carefully gone through the relevant clauses in the agreement and also oral evidence of the parties placed in this 50 Com.O.S.No.423/2004 regard. At this stage it is relevant to note the evidence of PW.1 at page-26 of his cross-examination relating to these claim Nos.19(v) to (viii), which is as under:

"26. It is true that river diversion work was made as separate item and price was quoted separately and it was paid. It is true to suggest that for diverting the water, plaintiff has constructed the sluices within dam portion. It is true to suggest that construction of sluices is mainly for diversion of river water. Witness says that it is the part of dam work."

Further it is also relevant to note that the evidence deposed by PW.1 in his cross-examination at page-26 para-29 relating to construction of coffer dams, which is as under:

"29. To construct the coffer dam we have dig the land to a minimum extent. It is not necessary to dig the land very deep. It is true to suggest that in the tender we have quoted the price towards construction of coffer dam and river diversion work. It is true to suggest that construction of coffer dam is part of river diversion work."

Further, it is also relevant to note that the evidence of PW.1 at page-27 para-31 of his cross-examination is as under:

"31. It is true to suggest that construction of coffer dams was part of the dam construction. It is true to suggest that with regard to the construction of coffer dam, we made a separate estimation in the tender and it was accepted and amount was received by us."

Further, it is also relevant to note that the evidence of PW.1 at page No.32 and para No.36 of his cross-examination is as under:

Com.O.S.No.423/2004 "It is true to suggest that for site clearance and river diversion work we have quoted as separate item and accordingly we have received the amount. It is true to suggest that sluices are built as temporary outlets for flowing out the river water at the site of dam construction."

As noted above, PW.1 in his cross-examination has clearly admitted that river diversion work was made as separate item and price was quoted separately and it was paid. Construction of coffer dam and sluices was mainly for diversion of river water and it was part of the dam work. Plaintiff quoted the price towards construction of coffer dam and river diversion work and made separate estimation in the tender, it was accepted and amount was also received. It is also relevant to note that plaintiff has not produced records to show calculation of claims shown in para Nos.19(v) to (viii) of the plaint. It is not shown as to how plaintiff arrived at the amounts shown in para Nos.19(v) to (viii)of the plaint. Therefore, plaintiff is not entitled for claims made in para Nos.19(v) to (viii) of the plaint.

54.Relating to claim made in para No.19(ix) of the plaint is concerned , it is relevant to note that plaintiff has made this claim for Rs.415.16 lakhs towards extended stay beyond March 1996. It is submission of learned advocate for plaintiff and it is also contended in the notes of arguments that the time was extended without any penalty and there is no dispute to the fact that plaintiff has done the work beyond March 1996. Plaintiff has pleaded delay factors in para Nos.6 & 10 to 12 of the plaint. In para-6 of 52 Com.O.S.No.423/2004 the plaint, it is stated about the delay and extension of time. Time was extended upto 15.6.1997 through letter of the defendant dated 23.6.1998. Plaintiff has stated various other expenses and increased expenses due to longer stay. Further, it is also submission of learned advocate for plaintiff that it is admitted by DW.1 in the cross-examination at page-15 and para-2 that defendant had extended the time from 1.4.1996 to 15.6.1997 to complete the work. It is say of DW.1 that the delay was natural process and not for the fault of the parties. DW.1 has expressed his ignorance to the suggestion that plaintiff has suffered loss due to extension of time beyond March 1996. Accordingly learned advocate for plaintiff has requested to allow this claim made in para No.19(ix) of the plaint. In support of this argument, learned advocate for plaintiff has placed copies of decisions in ILR 1992 KAR 3276 (Government of Karnataka Vs. K.Sudhakar Reddy) in which under the facts & circumstances of that case, it is held that it cannot be said that the overhead charges should have been calculated only on the quantity of work that remained over, beyond the period in question. Further, learned advocate for plaintiff has also placed citation in AIR 2011 SC 754 (R.L.Kalathia & Co., Vs. State of Gujarat) in which, under the facts and circumstances of that case, it is held that submission of final bill and acceptance of the final bill does not prevent claim for damages.

55.On the other hand, it is submission of learned advocate for defendant that the claim of the plaintiff for loss towards extended stay is 53 Com.O.S.No.423/2004 baseless and it is false claim. The extended period was only 440 days whereas plaintiff claimed for 669 days. As per Clauses-15,16,37 & 38 of the contract, plaintiff is not entitled to claim compensation/loss/damages etc., on account of delay. Accordingly it is submission of learned advocate for defendant that plaintiff is not entitled for the claim made in para No.19(ix) of the plaint.

56. After having heard both sides relating to claim made in para No.19(ix) of the plaint, I have carefully gone through the materials on record and also relevant clauses of the contract. It is relevant to note that as discussed in para No.36 of this Judgment, as per Clause-15 of the agreement dated 22.12.1989 at Ex.P.3, contractor is not entitled to claim any payment of compensation for alterations or restrictions of the work. Similarly, as per Clause-16 of the said agreement, the contractor shall not be entitled to claim any compensation for the losses suffered by him on account of delay caused by the defendant in supply of the materials. Similarly, as per Clause-37 of the said agreement at Ex.P.3, no compensation shall be allowed for any delay caused in the starting of the work on account of acquisition of land or in the case of clearance works on account of any delay in according sanction to estimates. In the same way, as per Clause-38 of the said agreement at Ex.P.3, no compensation shall be allowed for any delay in the execution of work on account of water standing in borrow pits or compartments. The conjoint reading of the 54 Com.O.S.No.423/2004 above noted clauses in the agreement at Ex.P.3 makes it clear that contractor shall have no claim in case of delay in execution of the work. Contractor was entitled for extension of the time in case of the delay caused by the defendant as stated in Clauses-15,16,37 & 38. There is no dispute to the fact that agreement at Ex.P.3 was entered into between the parties on 22.12.1989 and the original period of contract was till 31.3.1993. Since there was delay in execution of the work, supplementary agreement dated 7.12.1994 as per Ex.P.4 was entered into between the parties extending time till 31.3.1996 and also allowing the revised rates for the works done by the contractor after 1.4.1993. It is stated by the plaintiff that again through letter dated 23.6.1998 of the defendant, time was extended retrospectively till 15.6.1997 to complete the work. Due to above noted Clauses-15,16,37 & 38 of the agreement at Ex.P.3, contractor is not entitled to claim losses or damages towards extended stay beyond March 1996. Therefore, plaintiff is not entitled for this claim made in para No.19(ix) of the plaint.

57. Relating to claim made in para No.19(x) & (xi) of the plaint is concerned, it is relevant to note that plaintiff has made claim No.19(x) of the plaint for Rs.10 Lakhs towards premium on cement recovered and made claim No.19(xi) of the plaint for Rs.23.87 lakhs towards short weight of steel-rolling margin. It is submission of learned advocate for plaintiff that as per Clause-6.6.14 of the agreement at Ex.P.3, the variation in the 55 Com.O.S.No.423/2004 rate of cement & steel was to be adjusted at the schedule-A rate which makes it clear that the variation in the rate of cement & steel does not carry any premium. It is admitted fact that defendant collected Rs.10 lakhs towards premium on cement. In the cross-examination it is evidence of DW.1 in page-10 that defendant had agreed to supply cement to the plaintiff and accordingly defendant supplied 170 MT of cement to the plaintiff during the period from 16.2.1996 to 16.3.1996 and this supply of cement was not sufficient. Further, in the cross-examination at page No.6 DW.1 has admitted that there was short supply reinforcement rods to the tune of 126 MT and due to this reason plaintiff has suffered loss. Therefore plaintiff repeatedly requested the defendant to supply sufficient quantity of cement and steel. But, defendant failed to supply sufficient quantity of cement & steel to the plaintiff. Plainitff has suffered loss of Rs.23.87 lakhs due to short weight of steel rolling margin. Accordingly it is submission of learned advocate for plaintiff that plaintiff is entitled to recover these claims made in para-19(x) & (xi) of the plaint.

58. On the other hand, it is submission of learned advocate for defendant that the recovery of cement was made as per the relevant clauses of the agreement. It is admission of PW.1 in his cross-examination at page-30 & 31 that when the cement quantity is reduced from standard ratio, the defendant is entitled to withhold amount with regard to corresponding reduced cement rate. Accordingly the premium was 56 Com.O.S.No.423/2004 collected in the bills submitted by the plaintiff. The payment has been made on weight of steel utilized and this fact is admitted by PW.1 in his cross-examination in para No.37. There are no reliable records produced by the plaintiff to show the rates of the cement in each day during the execution of the work and further to show how this Rs.10 lakhs was arrived at which is claimed in para-19(x) of the plaint and to show how Rs.23.87 lakhs was arrived at which is claimed in para-19(xi) of the plaint. Accordingly, it is submission of learned advocate for defendant that plaintiff is not entitled for the claims made in para-19(x) & (xi) of the plaint.

59. I have carefully gone through the relevant clauses of the agreement at Ex.P.3. It is material to note that Clause-3.01.06 of the agreement at Ex.P.3 provides that the cement will be supplied in bulk as well as in bags. The contractor shall receive the cement in bags in weighment basis. The recovery of cost of cement will be based on weight as supplied. Whenever it is not possible to issue cement on weight basis, due to breakdown of weight bridge etc., sample weighment of bags shall be carried out and the quantity issued by weight will be based on the sample weight. The contractor shall also receive bulk cement as and when issued. Clause-3.01.07 provides that bulk cement will be issued and should be used for all the concrete works in the dam and appurtenant structures and shall be used only through the batching plant after weighment. The 57 Com.O.S.No.423/2004 contractor shall make his own arrangements to receive the bulk cement at work site by constructing silos of adequate capacity. Clause-3.01.08 provides that the contractor shall maintain an account of receipt and use of cement, steel and explosive each day and submit the same monthly to the Corporation in the prescribed form. Clause-3.01.11 provides that if excess cement or steel is found issued over the actual quantity required at the time of final bill, the same should be returned to the Corporation stores in good condition. Otherwise, the excess quantity of cement and steel so issued shall be charged at double the issue rate and the amount recovered from the bills of the contractor.

60. In the cross-examination in para-35, it is evidence of PW.1 as under:

"35. It is true to suggest that for carrying out the certain work items in schedule-B the engineers of the defendant Corporation prescribed exact ratio of ingredients to be used in the execution of work item. It is true to suggest that it is depending upon the standard ratio of ingredients used in the execution of the particular work item the amount is fixed for each particular item. It is true to suggest that the engineers of the defendant Corporation used to reduce the quantity of cement from the standard ratio as per the requirement. So also if required the engineers used to instruct the quantity of the cement as per the standard ratio and above that. It is true to suggest that whenever the standard ratio are reduced and increased the rates of particular item also used to vary. It is true to suggest that whenever there is variation of cement quantity, the defendant Corporation used to pay the amount accordingly. It is true to suggest that whenever the cement quantity is reduced from the standard ratio the defendant Corporation was entitled to 58 Com.O.S.No.423/2004 withhold the amount with regard to the corresponding reduced cement rate. It is true to suggest that whenever the work is being completed then only the defendant corporation used to know the exact utilization of the cement and amount incurred towards the particular work item. It is true to suggest that because of this utilization of the cement and knowing of the same only after completion of the work item then only we used to understand the exact amount incurred therefore, we used to pay the premium only after completion of work item. It is true to suggest that this practice is prevailing in all types of contract."

61. Relating to steel used for the execution of the work is concerned it is relevant to note that no doubt it is evidence of DW.1 in his cross- examination at page No.6 that there was short supply of reinforcement rods to the tune of 126 MT and plaintiff has suffered loss. It is also further evidence of DW.1 that plaintiff has suffered loss because of agreemental stipulations. On the basis of this type of evidence of DW.1, it cannot be held that plaintiff is entitled to recover Rs.23.87 lakhs as claimed in para No.19(xi) of the plaint towards short weight of steel-rolling margin for the reasons that in the cross-examination at page-37, it is evidence of PW.1 as under:

"37. ............................ It is true to suggest that for doing the contract work, the required steel is supplied on weight basis. It is a usual practice in all contracts. It is true to suggest that supply of the steel is billed on length basis. It is true to suggest that in this contract also the steel was supplied on weight basis and billed on linear measurement basis. I was knowing that defendant corporation adopts this methodology in billing about the steel supply. ..........."

Com.O.S.No.423/2004 As noted above, it is evidence of PW.1 relating to supply of cement for the execution of the work that the engineers of the defendant prescribed ratio of ingredients to be used in the execution of the work item depending upon the standard ratio of ingredients of the particular work item and accordingly amount is fixed for each particular item. Those engineers used to reduce the quantity of cement from the standard ratio as per the requirement and if required, they used to instruct the quantity of the cement as per the standard ratio and above that and rates of particular item used to vary as per the standard ratio are reduced and increased. Defendant used to pay the amount as per the variation of cement quantity. In case of reduction of the cement quantity from the standard ratio, the defendant was entitled to withhold the amount with regard to the corresponding reduced cement rate. The defendant used to know the exact utilization of the cement after the completion of the work only and accordingly plaintiff used to pay the premium only after the completion of work item which is prevailing practice of all types of contract. Similarly, as noted above, relating to steel supplied by the defendant, it is evidence of PW.1 that required steel was supplied by the defendant on weight basis which is usual practice in all contracts and supply of the steel was billed on length basis and the steel was supplied on weight basis and billed on linear measurement. In view of this evidence of PW.1 and also due to above noted clauses of the agreement relating to supply of steel and cement and 60 Com.O.S.No.423/2004 in the absence of reliable records produced by the plaintiff to show on what basis it arrived at the claims, there are no materials to hold that plaintiff is entitled for these claims shown in para Nos.19(x) & (xi) of the plaint. Therefore, plaintiff is not entitled to these claims shown in Para Nos.19(x) & (xi) of the plaint.

62. Relating to Claim made in Para-19(xii) of the plaint is concerned , it is relevant to note that plaintiff has made this claim for Rs.56.48 lakhs towards the amount paid on 21.10.2003 under protest and under threat of invocation of bank guarantee. It is submission of learned advocate for plaintiff and it is also contended in the notes of argument that plaintiff has raised plea relating to this claim in para No.20 of the plaint. There is no specific denial made by the defendant in the written statement relating to plea raised in para No.20 of the plaint. DW.1 in his cross-examination has admitted that plaintiff has paid Rs.56.48 lakhs requesting the defendant not to encash bank guarantee. Accordingly it is submission of learned advocate for plaintiff that plaintiff is entitled for claim made in para No.19(xii) of the plaint.

63. On the other hand, it is submission of learned advocate for defendant that defendant was entitled to deduct any payment from the final bill. The amount was not paid by the plaintiff but deducted. There is no proof of pleading regarding the same. Since nature of the amount itself is not stated, it is not possible to find any applicable clause. There is no 61 Com.O.S.No.423/2004 documentary evidence placed by the plaintiff to prove this claim. Accordingly, it is submission of learned advocate for defendant that plaintiff is not entitled to the claim shown in para No.19(xii) of the plaint.

64. After having heard both sides relating to this claim made by the plaintiff in para No.19(xii) of the plaint, I have carefully gone through the materials on record. No doubt, DW.1 in his cross-examination at page No.18 has deposed that defendant told to the plaintiff that it is going to encash the bank guarantee in the year 2003 and during that time plaintiff has paid Rs.56.48 lakhs requesting the defendant not to encash the bank guarantee. DW.1 has denied the suggestion that there was no occasion for the defendant to encash the bank guarantee and defendant collected Rs.56.48 lakhs from the plaintiff by threatening and as such, defendant is liable to pay said amount to the plaintiff. From this type of evidence deposed by DW.1, it cannot be said that plaintiff is entitled for this claim shown in para No.19(xii) of the plaint for the reasons that it is stated in page No.27 of the written argument filed by the learned advocate for plaintiff that pleading related to this claim of the plaintiff is in para No.20 & page-20 of the plaint. The said para No.20 of the plaint is as under:

"20. It is submitted that the bank guarantee furnished in terms of the contract by the plaintiff, are held by the defendant. The same have been extended from time to time. The defendant has been continuously threatening to invoke the same illegally and unjustly. It is submitted that having regard to the demonstrably fraudulent conduct of the said defendant, in having entertained the plaintiff's claims earlier and having found the same to be 62 Com.O.S.No.423/2004 tenable at earlier points of time and to change its stand unjustifiably, abruptly and brusquely rejecting all claims after the works are complete, smacks of egregious fraud. The claims of the plaintiff were pending throughout the period of execution of the work - to the knowledge of the defendant - and the same were never disputed, except in an attempt to determine the total claim amount payable. It is submitted that the plaintiff will now suffer irretrievable injury and will face financial ruin if the bank guarantees are invoked and which the banker is likely to honour without demur. In the present economic state of affair the onerous burden will certainly spell doom for the business of the plaintiff who is at the mercy of the defendant unless this Hon'ble Court intervenes. In any event, the defendant having committed serious and legally indefinable default in honoring its fiscal commitments to the plaintiff is precluded from invoking the Guarantees. As explained above, far from the plaintiff owing any money to the defendant, it is the defendant, which is liable to pay huge amounts to the plaintiff which are claimed in this suit."

In this para-20 of the plaint, there is no pleading as to when plaintiff had paid Rs.56.48 lakhs to the defendant and under which receipt/document it was paid and further there are no materials placed by the plaintiff to show the said amount was paid under protest. Except the admission of DW.1 in page No.18 of the cross-examination, there are no records to show that defendant had collected said Rs.56.48 lakhs from the plaintiff by using threat. It is undisputed fact that defendant was entitled to deduct any payment from the final bill. This amount claimed by the plaintiff is not towards bank guarantee. It is not specifically stated as to what was the nature of the amount claimed in para No.19(xii) of the plaint. There are no supportive documentary evidence placed by the plaintiff to prove this 63 Com.O.S.No.423/2004 claim. Therefore, plaintiff is not entitled to this claim made in para No.19(xii) of the plaint.

For the above discussed reasons, Issue Nos. 4 to 7 are answered in the 'Negative'.

65. Issue No.8 : In view of findings recorded to issue Nos. 1 to 7, plaintiff is not entitled for interest as claimed in the suit. Hence, this Issue No.8 is answered in the 'Negative'.

66. Issue No.9: It is contention of defendant that suit of the plaintiff is clearly barred by limitation. It is submission of learned advocate for plaintiff and it is also contended in his notes of argument that defendant had sent letter dated 6.12.1999 at Ex.P.6 to the plaintiff stating that 56 th and final bill is prepared and forwarded to Accounts Officer for scrutiny and the escalation bill is under process and after finalization, the same would be informed. Thus, it is clear that escalation was not finalized as on 6.12.1999 and the accounts for final bill were not settled by that time. Even defendant through its letter dated 11.4.2002 at Ex.P.7 extended the time till 30.4.2002 to the plaintiff for accepting the final bill. Suit came to be filed in the year 2004 and as such, suit is not barred by limitation. Further it is also submission of learned advocate for plaintiff that the settled law is that relating to contract work, the amount payable shall be decided on finalization of the bill. It is Sec.18 of the Limitation Act which is relevant since defendant has acknowledged its liability and also jural 64 Com.O.S.No.423/2004 relationship of debtor and creditor through its letter at Ex.P.7. Therefore, the time was extended from the date of acknowledgment made by the defendant in its letter at Ex.P.7. In support of this submission, learned advocate for plaintiff has placed copies of citations in AIR 1971 SC 1482 (Lakshmirattan Cotton Mills Co.Ltd. & Behari Lal Ram Charan Vs. The Aluminium Corporation of India Ltd.) , AIR 1988 SC 1007 (Major(Retd) Inder Singh Rekhi Vs. Delhi Development Authority), AIR 1998 Delhi 356 (Surinder Kumar Gupta Vs. Delhi Development Authority & Anr.) and AIR 1999 Delhi 303( Oriental Structural Engineers Ltd. Vs. Rites & Anr).

67. On the other hand, it is submission of learned advocate for defendant that the contract was for construction of dam which is nothing but a works contract. The plaintiff has made claims for reimbursement of alleged extra items of work. The cause of action for the same arose when the work was done by the plaintiff as per Article 18 of the Limitation Act. The work was admittedly completed on 15.6.1997 and suit is filed in the year 2004. The period of limitation is three years which was over on 15.6.2000. Even as per the plaint averments, all the claims of the plaintiff were rejected on 23.6.1998 and the period of limitation of three years from 23.6.1998 was ended on 23.6.2001 and therefore, suit filed by the plaintiff in the year 2004 is barred by limitation. Ex.P.7 does not extend the time as Sec.18 of the Limitation Act requires an acknowledgment in writing by the defendant. There is no such acknowledgment in Ex.P.7 since claims of the plaintiff were rejected. Ex.P.7 is nothing but reiteration of the letter dated 65 Com.O.S.No.423/2004 23.6.1998 rejecting the claims of the plaintiff. Accordingly it is submission of learned advocate for defendant that suit is clearly barred by limitation.

68. As noted above, learned advocate for plaintiff has placed copy of judgment reported in AIR 1971 SC 1482 (Lakshmirattan Cotton Mills Co.Ltd. & Behari Lal Ram Charan Vs. The Aluminium Corporation of India Ltd.) i n which it is held by Hon'ble Apex Court relating to the acknowledgement, at page No.10, as under:

"It is clear that the statement on which the plea of acknowledgment is founded must relate to a subsisting liability as the section requires that it must be made before the expiration of the period prescribed under the Act. It need not, however, amount to a promise to pay, for, an acknowledgment does not create a new right to action but merely extends the period of limitation. The statement need not indicate the exact nature of the specific character of the liability. The words used in the statement in question, however, must relate to a present subsisting liability and indicate the existence of jural relationship between the parties, such as, for instance, that of a debtor and a creditor, and the intention to admit such jural relationship."

Though there is no dispute relating to the proposition of the above noted judgment of Hon'ble Apex Court, but, with due respect to it, the same is not applicable to the facts and circumstances of this case for the reasons that in Ex.P.7, upon which plaintiff wants to lay more importance to state that it amounts to acknowledgment of the liability, is the letter dated 11.4.2002 in which time was extended, as per the request of the contractor, 66 Com.O.S.No.423/2004 for accepting the final bill upto 30.4.2002 and further it is stated that KPCL decided to reject all the issues and claims preferred by the contractor. It is stated in para No.8 of the plaint that the plaintiff completed the work in all respects as on 15.6.1997 and submitted final bill for Rs.6.43 Crores. This means in the year 1997 itself final bill was submitted by the plaintiff. Ex.P.6 is letter dated 6.12.1999, which is produced by the plaintiff itself in this case. This letter was sent by the defendant to the plaintiff stating as under:

"56th & final bill for the above said work is prepared and forwarded to our accounts office for scrutiny. It is requested to attend our accounts office at Kadra for acceptance of the bill.

Escalation bill is under process. On finalization, the same will be informed to you."

Thus, in the year 1999 itself, defendant sent letter as per Ex.P.6 stating that 56th & final bill for the work is prepared and forwarded to the accounts office for scrutiny and accordingly called upon the plaintiff to attend the accounts office for acceptance of the final bill. On careful reading of Ex.P.7, it is manifest that it is plaintiff who went on requesting to extend time to accept the final bill. Even in para-13 of the plaint itself, it is pleaded that defendant through its letter dated 23.6.1998 rejected all the claims and issues raised by the plaintiff. Therefore, under these circumstances of the case on hand, it cannot be held that letter at Ex.P.7 amounts to acknowledgment of liability of the defendant so as to extend 67 Com.O.S.No.423/2004 the time to the plaintiff to file suit.

69. Further, learned advocate for plaintiff has also placed copy of the judgment reported in AIR 1988 SC 1007 (Major(Retd) Inder Singh Rekhi Vs. Delhi Development Authority) wherein application filed under Sec.20 of the Arbitration Act, 1940, seeking a direction from the court to the respondent to file the Arbitration Agreement to the court and then to refer the dispute for arbitration, was dismissed on the ground that application was barred by time and this dismissal was confirmed by the Division Bench of Hon'ble High Court of Delhi. Hon'ble Apex Court has set aside the said dismissal with the observation that a dispute has arisen regarding non-payment of the alleged dues of the contractor. Therefore the question is when did such dispute arise. The High Court proceeded on the basis that the work was completed in 1980 and, therefore, contractor became entitled to the payment from that date and the cause of action under Article 137 arose from that date. But in order to be entitled to ask for a reference under Sec.20 of the Act, there must not only be an entitlement to money but there must be a difference or dispute must arise. Further it is observation of the Hon'ble Apex Court that on completion of the work a right to get payment would normally arise but where the final bills have not been prepared and when the assertion of the claim was made on 28.2.1983 and there was non- payment, the cause of action arose from 28.2.1983 and not in the year 1980 when the work was completed. This proposition of the judgment of the 68 Com.O.S.No.423/2004 Hon'ble Apex Court, is not applicable to the facts and circumstances of the case on hand for the reasons that, undisputedly the contract of the case on hand was for construction of dam which is nothing but a works contract and it is Article 18 of the Limitation Act applicable to the case on hand. Even in page No.8 of the plaint itself it is stated that work was completed in all respects on 15.6.1997 and final bill was also submitted accordingly. But, suit on hand came to be filed in the year 2004.

70. Further, learned advocate for plaintiff has also placed copy of another judgment reported in AIR 1998 Delhi 356 (Surinder Kumar Gupta Vs. Delhi Development Authority & Anr.) in which the Arbitral Tribunal negatived the preliminary objections raised stating that claims were barred by limitation, by observing that non-payment of the amount due gives rise to a claim and the claimant cannot be barred on the basis of the preliminary objections. This finding of the Arbitral Tribunal came to be confirmed. This proposition is not applicable to the facts and circumstances of the case, which will be discussed herein afterwards.

71. Further, learned advocate for plaintiff has also placed copy of another judgment reported in AIR 1999 Delhi 303( Oriental Structural Engineers Ltd. Vs. Rites & Anr) in which based on the facts and circumstances of that case, it was held that claim is not barred by limitation and the applicable provision is Article 137 of the Limitation Act and the limitation period shall have to be competent from the date when the final 69 Com.O.S.No.423/2004 bill was passed.

72. It is undisputed fact that the contract of the case on hand was for construction of dam which is nothing but a works contract. Even in the notes of argument filed by the learned advocate for plaintiff, it is stated that Article 18 of the Limitation Act is applicable. However, it is further contention of learned advocate for plaintiff that since letter at Ex.P.7 amounts to acknowledgment of liability by the defendant and suit is filed within three years from the date of Ex.P.7, and as such suit is not barred by limitation.

73. It is relevant to note that, as noted above, it is contended in para No.8 of the plaint that plaintiff completed the work in all respects as on 15.6.1997 and submitted a final bill in respect of works done for Rs.6.43 Crores. This means plaintiff submitted final bill in the year 1997 itself. It is contended in para No.13 of the plaint as under:

"13. It is submitted that the plaintiff who had raised the above claims at various points of time and was reiterated time and again. The defendant had given the assurance in writing and which are placed on record did not honour its commitment. On the other hand, the defendant had, without any justification and without assigning any reason, unilaterally proceeded to reject all claims and issues raised during the subsistence of the contract and the extended period. This was intimated to the plaintiff by a letter dated 23.6.1998. It is submitted that the act of the defendant in this regard is blatantly fraudulent and amounts to unjust enrichment of itself at the cost of the plaintiff. The plaintiff has been denied its legitimate dues which were assured to be paid, in writing, at earlier points of time."

Com.O.S.No.423/2004 Thus, in para No.13 of the plaint, it is clearly admitted by the plaintiff that all the claims and issues raised by the plaintiff were rejected by the defendant through its letter dated 23.6.1998. As noted above, on 6.12.1999 itself defendant had sent letter at Ex.P.6 to the plaintiff calling upon the plaintiff to attend the accounts office at Kadra for acceptance of the final bill. Details of Ex.P.7 shows time was extended, as per the request of the plaintiff for acceptance of final bill, upto 30.4.2002. Though letter at Ex.P.7, extending time for acceptance of final bill, which time was extended as per the request of plaintiff, was sent on 11.4.2002, but plaintiff has filed this suit on 16.6.2004. It is relevant to note that it is held by Hon'ble High Court of Punjab & Haryana in its reported judgment in AIR 1984 P&H 185 (Jullundur Improvement Trust, Jullundur Vs. Kuldip Singh) as under:

"4. The main controversy in this appeal is: whether the suit of the plaintiff wan within time or not? It is the common case of the parties that it is Article 18, Limitation Act, 1963, which would govern the plaintiffs case. It provides a limitation of three years from the time the work is done. The present suit was filed on 9-2-1971. According to the plaintiff the cause of action arose to him on 14-12-1967, when the payment of the final bill, Exhibit D.19, was received by him under protest whereas the case of the defendant is that the period of three years would commence from the date the work was done which according to it was completed on 28-9-1967, as admitted by the plaintiff himself vide, Exhibit D.4, dated 28-9-1967, written in this own hand wherein he had stated that 90 feet wide road under 84 acres scheme was complete and, therefore, his final bill, be prepared accordingly. In any case, according to the defendant, in the final bill, Exhibit D.19, the certificate to the effect that necessary detailed measurements have been taken as recorded in the Measurement Book 71 Com.O.S.No.423/2004 No. 44, was given on 7-10-1967, by the Engineer in charge Mohinder Singh, who appeared as D.W. 7. Thus, it was argued on behalf of the defending that even after that date. i. e. 7-10-1967, the present suit filed on 9-2-1971, even after allowing the notice period of two months was barred by time. According to the trial Court, the cause of action would arise to the plaintiff for the price of the work done only on furnishing of the completion certificate by the Engineer in charge. The certificate of the Engineer in charge, according to the trial Court did not bear any date. Since, according to the trial Court the payment of the last bill was received by the plaintiff on 14-12-1967, under protest, the period of limitation will start from that date and that after allowing the notice period of two months, the suit filed by the plaintiff on 9-2-1971, was within time. The trial Court also found that the plaintiff prosecuted with due diligence another civil proceeding founded upon the same cause of action in a Court which could not give the relief and, therefore, he was entitled to get, the period spent in prosecuting those proceedings excluded under S. 14, Limitation Act, (hereinafter called the Act).

5. After hearing the learned counsel for the parries, I am of the considered opinion that the plaintiffs suit was barred by time.

6. It could not be successfully argued that the cause of action for filing the present suit had arisen to the plaintiff on 14-12-1967, when the payment of the final bill, Exhibit D. 19, was received by the plaintiff under protest. The completion certificate given on the. final bill, Ext. D. 19, was required to be recorded for making the payment. The amount which is being claimed in the per-sent suit was never the subject-matter of the bills submitted by the plaintiff at any stage. Therefore 'for the purposes of filing the present suit, under Art. 18 of the Act, the work bill be deemed to have been done when it was duly entered in the measurement book and on the basis of which the final bill was prepared. As stated earlier, according to the plaintiff, the work was completed by him on 28-9-1967, vide Ext. D. 4, and in any case on 7-10-1967, when it was certified on Exhibit D. 19 by the Engineer in charge Mohinder Singh, D.W., that the necessary detailed measurements had been taken as recorded in, Measurement Book No.

44. The further certificate that the work had been duly completed according to the terms of the contract and that the measurements and 72 Com.O.S.No.423/2004 other calculations entered into the bill were correct was necessary only for the purpose of 'making the payment of the final bill. It may be that the said certificate does not bear any date, but it does not mean that it will be deemed to have been given on 14-12-1967, when the plaintiff received the payment of the bill under protest. In any case, at certificate does not furnish any cause of action to the plaintiff for filing the per-sent suit for which the limitation began to. run from the date when the work was done. According to the plaintiff, the work was done, the moment it was entered into the Measurement Book and the final bill was prepared accordingly. The furnishing of the final certificate by the Engineer in charge is required under clause 6 of the conditions, of contract, Exhibit P. 6, and is meant for a, deterrent purpose. Besides, as already observed, the plaintiff never claimed the suit amount in the final bill submitted by him i.e., Exhibit D. 19, and, therefore, any final certificate given thereon was immaterial for the purposes of filing the present suit. It is not disputed that in case 28-9-1967, or 7-10-1967, is taken to be the date when the work was done, then the suit filed by the plaintiff on 9-2-1971 even after allowing the notice period of two months, was barred by time."

The above proposition of Hon'ble High Court of Punjab & Haryana in Jullundur's case, was followed by the Hon'ble High Court of Bombay in the case of Minu F.D.Mehta Vs. Ratnasale Madavrao Vakil reported in 2001(1) Mh.L.J. 881. This proposition of law is aptly applicable to the case on hand for the reasons that facts and circumstances of Jullundur's case are exactly similar to the facts and circumstances of the case on hand. As noted above, in para No.13 of the plaint, it is clearly admitted by the plaintiff that all the claims and issues raised by the plaintiff were rejected by the defendant through its letter dated 23.6.1998. As noted above, on 6.12.1999 itself defendant had sent letter at Ex.P.6 to the plaintiff calling upon the plaintiff to attend the accounts office at Kadra for acceptance of 73 Com.O.S.No.423/2004 the final bill. Details of Ex.P.7 shows time was extended, as per the request of the plaintiff for acceptance of final bill, upto 30.4.2002. Though letter at Ex.P.7, extending time for acceptance of final bill, which time was extended as per the request of plaintiff, was sent on 11.4.2002, but plaintiff has filed this suit on 16.6.2004. There are no materials to hold letter at Ex.P.7 amounts to acknowledgment of liability by the defendant. The claim made in this suit is relating to escalation due to delay in handing over of site, recovery of damages/losses on account of the same, recovery of premium on cement, reimbursement of power tariff etc. These claims could not have been the subject matter of the running bills. It is undisputed fact that plaintiff went on submitting running bills No.1 to 55 and defendant released amounts of those bills after making adjustments. 56 th bill was the final bill and as per pleading in page No.6 of the plaint, work was completed in all respects on 15.6.1997 and then plaintiff submitted a final bill for Rs.6.43 Crores. Plaintiff had made the claims, which are now made in the suit, to the defendant and these claims were clearly rejected by the defendant through its letter dated 23.6.1998 as pleaded in para-13 of the plaint. Therefore, when it is clearly pleaded in para No.13 of the plaint that claims and issues raised by the plaintiff were rejected by the defendant through its letter dated 23.6.1998, the period of limitation for these claims started on 23.6.1998 and the limitation of three years was ended on 23.6.2001. Suit filed by the plaintiff in the year 2004 is clearly barred by 74 Com.O.S.No.423/2004 limitation. For these reasons, this Issue No.9 is answered in the 'Afffirmative'.

74. Issue No.10: For the above discussed reasons and my findings on the above issues, I proceed to pass the following:

ORDER Suit of the plaintiff is dismissed.

Under the circumstances of this case, both parties shall bear their own cost.

(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open Court on this the 29th day of January, 2020).

(JAGADEESWARA.M.), LXXXII Addl. City Civil & Sessions Judge, Bangalore.

AN N EXU RE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:

PW.1             D.V.Giri

LIST OF DOCUMENTS MARKED FOR PLAINTIFF

Exs.P-1          Power of attorney
" P-2            Authorization letter
" P-3            Book containing Agreement
" P-4            Supplementary Agreement
" P-5            Copy of plaintiff's letter
" P-6            Letter of defendant dated 6.12.1999
" P-7            Letter of Ex.Engineer of defendant dated 11.4.2002
" P-8            Bills of running account
                                      75
                                                 Com.O.S.No.423/2004

" P-9      Letter of defendant dated 25.3.1994
" P-10     Letter of plaintiff dated 22.6.1992

LIST OF WITNESSES EXAMINED FOR DEFENDANT:
DW.1      M.S.Kudlannavar

LIST OF DOCUMENTS MARKED FOR DEFENDANT

Exs.D-1       Authorization letter



                 (JAGADEESWARA.M.),
             LXXXII Addl. City Civil & Sessions Judge,
                       Bangalore.

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Hindustan Construction Co vs Karnataka Power Corporation Ltd on 29 January, 2020