Himachal Pradesh High Court
State Of H.P. And Another vs Kapil Dev Bansal on 1 October, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RFA No. 100 of 2008 .
Reserved on : 25.09.2019
Decided on: 01.10.2019
State of H.P. and another ....Appellants
Versus
Kapil Dev Bansal ...Respondent
_____________________________________________________________ Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1 No For the Appellants: Mr. Vinod Thakur, Addl. A.G. with Mr. Bhupinder Thakur, Ms. Svaneel Jaswal, Dy. A.Gs., and Mr. Ram Lal Thakur, Asstt. A.G. For the Respondent: Mr. Suneet Goel and Mr. Anil Sharma, Advocates.
_________________________________________________________ Justice Tarlok Singh Chauhan, Judge The defendants are the appellants, who aggrieved by the judgment passed by learned trial Court whereby the suit of the plaintiff/respondent was decreed for recovery of recovery of Rs.5,35,000/ alongwith future interest at the rate of 6% from the date of filing the suit till its realization, have filed the instant first appeal.1
Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 2
2. It is not in dispute that the facts as necessary for the adjudication of this appeal has been correctly reproduced .
by the Court below, therefore, the same are extracted as it is.
3. Sh. Kapil Dev Bansal, carrying on the business in the name and style of 'M/s Kapil Dev Constructions (hereinafter referred to as plaintiff) filed the suit for declaration and recovery of Rs.5,35,000/ on the allegations that he is a Class 'A' contractor enlisted with the H.P.P.W.D. for execution of civil works relating to buildings and roads and that he has been executing civil works for various departments of the State of H.P. as well as other organizations. During the course of his business, he had entered into a contract with the State of H.P. (hereinafter referred to as defendant No.1), through the Executive Engineer, Bilaspur Division No.II HPPWD, Bilaspur (hereinafter referred to as defendant No.2) for the execution of the work relating to "Improvement of riding quality to NH88 (Shimla Bilaspur Hamirpur Nadaun Ranital Kangra road) from Km 60/600 to 75/600 (SH: providing Bituminous macadam layer of 50 mm thickness by correcting old surface by bituminous macadam, providing and laying semidense bituminous concrete and PCC road side drain Km 60/600 to ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 3 75/600)" (hereinafter referred to as Work). The said contract between the parties was reduced into writing on the standard .
form of contract adopted by defendant No.1 for civil works. It was further averred that the tender of the plaintiff was duly accepted for and on behalf of defendant No.1 by defendant No.2, who is authorised under Article 299 of the Constitution of India to enter into contracts for and behalf of defendant No.1 vide letter dated 5.6.2000 with a time limit of six months for its completion. However, the said letter was not despatched by the defendants and that only on 23.6.2000, it was posted. The stipulated date of start of the work was 15 days from the issue of letter of award dated 5.6.2000. It was further averred that immediately after posting the said letter of award on 23.6.2000, defendant No.2 issued another letter dated 27.6.2000 purporting to be a corrigendum to the award letter dated 20.6.2000 . As far as those conditions contained in letter dated 27.6.2000 were concerned, the same had never been agreed upon the plaintiff. In fact, the said unilateral action of imposing conditions was protested by the plaintiff but defendant No.2 refused to withdraw the unilateral corrigendum. Although, the agreement between the parties comprised of reciprocal promises was expressly fixed ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 4 by the agreement. However, the nature of the transaction between the parties required the defendants to perform their .
part of performance relating to:
a) making available the site for the work.
b) providing the designs, drawings and
instructions for the work.
c) making available to the plaintiff the required
quantities of the stipulated building materials and
d) making regular monthly payments to the plaintiff before the plaintiff could be expected or required to execute and complete the work.
4. It was further averred that in the absence of the defendants performing the said reciprocal promises, the plaintiff could not have been expected to execute the work till the defendants had performed their promises of providing the site and the designs, drawings, instructions and material required for executing the works. Further, as per the conditions of the contract, all the material including the bitumen required for the work was to be procured by the plaintiff. As far as the bitumen is concerned, it is available only from the refinery and that too on the basis of an authorisation duly signed by the concerned authorities. For this reason, the plaintiff had made a request to defendant ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 5 No.2 for issuing a letter certifying his requirement so as to enable him to procure the bitumen from the Oil Refinery. It .
was further averred that inspite of his repeated requests, defendant No.2 did not issue the said letter which prevented him from procuring the bitumen required for the work. Since, defendant No.2 was bound to afford all reasonable facilities for the performance of the contract and that defendant No.2 neglected to do so, when there was no fault on the part of the plaintiff qua the nonperformance of the contract. Knowing fully that defendant No.2 was in breach of the contract, it tried to coerce the plaintiff into executing certain specific items of the work awarded to him but he (plaintiff) insisted upon execution of the work as a whole and not in a piece meal fashion. His such stand did not suit defendant No.2, who then tried to threaten him with illegal rescission of the work and penal action under the contract. The said threats were also duly resisted and replied to by the plaintiff. It was further stated that as per the provisions of the contract, the plaintiff was required to execute the work in accordance with the drawings, designs and instructions issued by the defendants but his requests to make available the same were ignored by the defendants. In this way, the defendants ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 6 prevented him from executing the work and thus lost the right to take any punitive action against him. Further, since .
the work involved the resurfacing of the road which could have been done with the help of machinery, it was necessary to either close all traffic on the road or to divert the same so that the finished surface would not have been disturbed/damaged for the period of 12 to 24 hours as it required for the lowering of the temperature of the bitumen surface and also for the unhindered operations of the machinery of the plaintiff. In this regard his requests were ignored by defendant No.2. For this reason, he was prevented from executing and completing the work as per the provisions of the contract. Further, inspite of the fact that he had been prevented from executing the work, defendant No.2 vide letter dated 26.9.2000 cancelled the contract and forfeited the earnest money amount of Rs.4,97,525/. Pursuant to the said action, the defendants realized the said amount by encashing the fixed deposit receipt given by the plaintiff as earnest money and by doing so realized the interest on the FDR without having any right to do so. By their such action, he was also deprived of the anticipated profit from the execution of the work which is to the tune of 15% of the gross ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 7 value of the work. It was further alleged that in view of the arbitration agreement between the parties which covered the .
said aspect, the plaintiff reserves his right to seek his remedy for recovery of anticipated profit by resorting to arbitration.
Since the dispute relating to rescission of the work and forfeiture of the security is not covered by the arbitration agreement, for this reason, the plaintiff has sought redress by filing this suit. It was further maintained that the action of the defendants in cancelling the contract/work and forfeiting the security deposit is illegal, arbitrary and not binding on the plaintiff and he is entitled to recover the amount of earnest money together with interest thereon as per detail given below:
a) Amount of earnest money: Rs.4,97,525.00
b) Interest on earnest money Rs. 37,314.00 I.e.10% p.a. from 20.5.2000.
c) Cost of legal notice : Rs. 1,100.00
Total Rs.5,35,939.00
It was averred that the plaintiff restricts his claim to only Rs.5,35,000/ and prayed that a decree for the recovery of Rs.5,35,000/ alongwith pendentlite and future interest with ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 8 costs may kindly be passed in favour of the plaintiff and against the respondents.
.
5. The suit was contested by the defendants by raising preliminary objections qua maintainability, estopel, bad for want of legal notice under Section 80 CPC and cause of action. On merits, it was admitted that the tender for the execution of the work was given to the plaintiff as per letter of award dated 5.6.2000 but it was denied that this letter was despatched and posted on 23.6.2000. Moreover, defendant No.2 had also sent a telegram on 6.6.2000 giving the complete reference of letter of award with the direction to the plaintiff to contact Assistant Engineer,HPPWD, Namhol (hereinafter referred to A.E.) for lay out and to start work immediately so that maximum progress could have been achieved during the month of June, 2000. The copy of such telegram had also been sent by post to the plaintiff. Again the plaintiff was informed by telegram on 20.6.2000 to start the work immediately as no infrastructure was on the site on 20.6.2000 to start the work immediately and this telegram was also sent by post. It was further pleaded that on having received the letter of award, the plaintiff had signed the agreement alongwith Executive Engineer (defendant No.2) ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 9 amicably and at that time, no objection of late despatch of letter of award was raised by him. It was further asserted .
that since the plaintiff did not commence the work immediately after the award letter, for the same, he is at fault. As far as the issuance of corrigendum dated 27.6.2000 to letter of award dated 5.6.2000 is concerned, it was very well within the competency of defendant No.2 under the provisions of relevant rules. Further, the corrigendum was the part of letter dated 5.6.2000 read with the terms/conditions as contained in (e) (I) of Form 8 of contract agreement duly signed by the plaintiff in which the time period to commence the work had been left to the competency and discretion of defendants. For this reason, the requests of the plaintiff to withdraw the said corrigendum was rightly and legally rejected by defendant No.2. It has also been maintained that since the work related to the improvement of riding quality of the already functioning National Highway 88, the site was already available on or before and even after the date of award and that for the execution of such type of work, no design and drawings were required. For the execution of the work, two kinds of material were required i.e. Bitumen and Cement. Whereas, bitumen ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 10 was to be arranged by the plaintiff, the cement was to be supplied by the department as per the stipulation in the .
contract agreement. In both the aforesaid cases, the plaintiff had failed to perform the contract regarding bitumen and also cement which was sufficiently available in the Divisional store under the control of defendant No.2, but the plaintiff never bothered to lift the same despite the fact that a sufficient period of three months had elapsed. Thus, there had been a nonperformance of the contract on the part of the plaintiff which amounts to breach of the contract before commencing the work. It was further pleaded that the plaintiff was required to get the site of installation of the machinery inspected and approved by the Engineerin Charge/defendant (hereinafter referred as Engineer), under the provisions of M.O.S.T. specifications stipulated in the contract agreement. Neither the plaintiff informed nor get the site of installation as well as specified machinery inspected by the Engineer inspite of various notices issued from time to time by defendant No.2. This is another point of non performance of contract on the part of the plaintiff. As per the conditions of contract agreement, the bitumen of grade 60/70 was to be arranged by the plaintiff and for this reason, ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 11 defendant No.2 was not in any manner, concerned with the same. In case, bitumen manufacturing company had .
required the certificate of the actual requirement of bitumen for the work, it was the duty of the plaintiff to have supplied the said requirement from the schedule of quantity of contract agreement duly signed by him for the procurement of bitumen and not defendant No.2. Moreover, the plaintiff had never applied/approached the office of defendant No.2 for any assistance in this regard by giving the name of the Company from which he intended to purchase the bitumen.
It was further maintained that the plaintiff was to install the machinery as per the site approved by the Engineer in view of the M.O.S.T. specification clause 504.3.1. Thus, defendant NO.2 was legally bound to inspect all the components of required machinery installed at the site approved by the Engineer before the commencement of work by the plaintiff. It was further stated that defendant No.2 had gone to such extent of giving one after another opportunities to the plaintiff that in case he could not commence the work, atleast, he may get the machinery inspected to the satisfaction of Engineer. Since the plaintiff did not get the machinery inspected by the Engineer, it is a clear breach of contract on ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 12 his part. Even, he failed to get the site of installation approved by the Engineer. Moreover, the plaintiff had never .
informed defendant No.2 about the location where machinery was to be installed. On the contrary, he was being properly informed from time to time to get the machinery/site inspected under the provisions of M.O.S.T. specification. It was denied that for getting executed the work, the complete traffic had to be blocked on the portion of the National Highway where work was to be carried out/executed. It was further denied that he was, in any manner prevented from executing and completing the work by defendant No.2 as per the provisions of the contract agreement. In fact, the plaintiff committed the breach of the contract by not commencing the work as per the letter of award and contract agreement. In these circumstances, the defendant No.2 was left with no other alternative but to cancel the contract as per condition
(e) (I) Form 8 of the agreement duly signed by the plaintiff read with corrigendum of letter of award issued by defendant No.2 because he did not start the work after the lapse of a period of three months. While the month of July and August were most appropriate for doing the same and that there had been a sufficient period for the procurement of the bitumen.
::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 13In these circumstances, the cancellation of the said work by forfeiting the earnest money is bonafide, legal and as per the .
clause of agreement and that the same cannot be termed as malafide and arbitrary. As far as the interest on the earnest money i.e. amounting to Rs.10851/ is concerned, it had been refunded to the plaintiff vide letter dated 4.4.2001 after getting the bank formalities completed. The other allegations as levelled in the plaint were denied.
6. By way of filing replication, the plaintiff reaffirmed his own allegations by denying those of the defendants.
7. On 29.7.2005, the following issues were framed:
1. Whether the action of defendant No.2 taken vide order dated 26.9.2000 canceling the work and forfeiting the security deposit is illegal, void, without jurisdiction and not binding on the plaintiff, as alleged, if so its effect? OPP
2. Whether the plaintiff is entitled to a decree for declaration as prayed for? OPP
3. Whether the plaintiff is entitled to a decree for sum of Rs.5,35,000/ as alleged? OPP
4. Whether the suit of the plaintiff is not maintainable. OPD
5. Whether the plaintiff is estopped from filing the suit? OPP
6. Whether the suit of the plaintiff is bad for want of legal and valid notice under Section 80 CPC? OPD ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 14
7. Whether the plaintiff has no cause of action to file the suit? OPD .
8. Relief.
8. After recording evidence and evaluating the same, the learned Court below decreed the suit of the plaintiff, as aforesaid, constraining the defendants to file the instant first appeal.
9. It is vehemently argued by Mr. Vinod Thakur, learned Additional Advocate General for the appellants that the findings recorded by the learned Court below being perverse are liable to be setaside.
10. On the other hand, Mr. Suneet Goel, learned counsel for the plaintiff/respondent would argue that since the judgment passed by the learned Court below is based on correct appreciation of the pleadings as evidence on record, therefore, the same warrants no interference.
11. I have heard learned counsel for the parties and have gone through the records of the case carefully.
12. At the outset, it needs to be noticed that this Court is dealing with first appeal which is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law.
::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 15This Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the .
questions whereby the issues and the contentions put forth, and pressed by the parties for decision before this Court.
13. Having set out the respective pleadings of the parties, the Court would now proceed to analyze the evidence brought on record.
14. PW1 Devi Singh Kaundal has proved the notice inviting tender Ext.PW1/A, award letter dated 5.6.2000 Ext.PW1/B and agreement that was signed between the parties Ext.PW1/C.
15. PW2 is no other than the plaintiff himself, who stated that he was a class "A" Government contractor and had entered into an agreement Ext.PW1/C regarding the execution of the work. Award letter Ext. PW1/B had been received by him on 26.6.2000 and thereafter he asked for the instructions from the department regarding the work. After the receipt of award letter, he had received a corrigendum dated 27.6.2000 Ext. PW2/A sent by defendant No.2 to which he protested vide letter dated 30.6.2000 Ext. PW2/B. He deposed that there was no agreement between the parties regarding the corrigendum and the same had unilaterally ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 16 been issued by the defendants on its own. As per the agreement, the defendants were required to make available .
the site, designs, drawings and instructions etc. to him further in order to get procured the bitumen to be used in the work, authority letter was also required to be issued by the defendants on the basis of which alone the plaintiff could have purchased the same from refinery. Now, in absence of such authority letter in which the quality and quantity was mentioned, the bitumen could not be purchased as the same is not available in the open market. The work could not be started as the defendants failed to make available the material including free site for the execution of the work.
Besides, nothing was done for getting diverted the traffic to facilitate the execution of the work. As far as the work was concerned, the same could not have been carried out in piece meal. He further deposed that it was not possible for starting the work in July as it was a rainy season. He further deposed that all these facts were brought to the notice of the defendants vide letters Exts. P1 to P3 sent through post, the postal receipts qua which are Exts. P4 to P7. The witness further stated that despite bringing all these problems he was threatened that the agreement would be ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 17 cancelled which ultimately came to be cancelled vide letter Ext. PW2/D. Before filing the suit, the plaintiff issued notice .
Ext. PW2/E to the defendants. Consequent upon the cancelling of the tender, his security, as earnest money in the sum of `4,97,525/ was wrongly forfeited.
16. In crossexamination, the plaintiff admitted that the award letter dated 5.6.2000 was received by him on 26.6.2000. He denied that this award letter Ext. PW1/B was dated 23.6.2000 and that he had been told by the defendants to contact SDO, Namhol so that the work could be started.
He denied having received any telegrams Ext. DA and Ext.DB. He further denied that corrigendum had been issued as per the agreement. However, he admitted that the work was not started in time. He volunteered to state that there was no fault/mistake on his part in not commencing the work.
17. On the other hand, defendants examined DW1 Promila Verma, who brought the relevant record pertaining to this case including agreement file No.17. However, on being crossexamined, the witness was not in a position to state that which dates award letter dated 5.6.2000 and telegram dated 6.6.2000 had been despatched. However, she denied ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 18 that the telegram had not been despatched and for this reason, the relevant stamp and despatch registers had not .
been brought by her.
18. DW2, B.S. Parmar was the Executive Engineer, Division No.II, HPPWD, Bilaspur at the relevant time. He stated that on 20.5.2000, the tender was opened and vide letter dated 5.6.2000, the offer was made to the plaintiff vide Ext.DW2/A. When the plaintiff failed to start the work after the award letter on 6.6.2000, he was asked to start the work through telegram Ext. DA, but even then, the work was not started. Thereafter on 20.6.2000, A.E. Namhol sent a telegram Ext.DB, the copy of which was also sent through post. Agreement between the parties was executed vide Ext.
DW2/B and on 27.6.2000, a corrigendum was issued to the plaintiff vide Ext. DW2/C. Thereafter, through letter dated 18.7.2000 Ext. DW2/D, the plaintiff was again asked to start the work and when he failed to do the needful, then another letter dated 20.8.2000 Ext. DW2/E was issued requesting him to start the work. Vide another letter Ext.
DW2/G, the plaintiff had been informed regarding the non stop of the work. Even, A.E. Namhol vide letter dated 19.8.2000 Ext. DW2/H had informed the plaintiff that even ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 19 the equipment and machinery had not been brought on the site by the plaintiff. He had issued corrigendum Ext. DW2/C .
as per his competence and claimed the same to be legal as per the terms and conditions of the agreement. He further stated that besides the material, the plaintiff was not required to be provided any other special facility as per the agreement. He was only to be supplied the cement. However, since the plaintiff had not started the work, he cancelled the offer as per letter dated 26.9.2000 Ext. DW2/D and forfeited the earnest money. As far as the bitumen and cement works were concerned, the same could have been started separately.
19. In crossexamination, the witness admitted that the plaintiff was 'A' class contractor and could have been registered as such if he satisfies the required conditions. The period of six months to complete the work was to reckon/ start from 15th day from the issuance of letter of award. He admitted that award letter Ext. DW2/A was sent by the office on 23.6.2000 through registered post. He denied that Ext. DW2/C was issued unilaterally. Self stated that it was a part of letter/offer dated 5.6.2000. The award work was specialized one and that it could not have been executed/ ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 20 carried out by an ordinary person. He feigned ignorance about the fact that bitumen is not available without any .
authority letter. However, he denied that in order to give benefit to a particular person, the award was cancelled. He further feigned ignorance regarding the award of the work having been made thereafter in favour to a particular person for ` 2.5 crores.
20. DW3 Kishori Kumar remained posted as J.E., Jukhala Section from August 2000 to July, 2003. He deposed that as per the agreement, the work upto length of 4 Kms 600 meters was to be executed/carried in his section.
The plaintiff had neither started any work nor installed any machinery/equipment. In case the plaintiff had installed the machinery, he would have informed him. In cross examination, he stated that for carrying out bitumen work, certain temperature is to be maintained and that this type of work could not be carried in rainy season. It is only after finishing the bitumen work, the cement work can be started keeping in view the level of the road. The road level gets higher when 50 mm Macadam is used. The work in question had thereafter been completed by one Ashok Thakur, but the witness did not know that he executed the same for `2.5 ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 21 crores. He further feigned ignorance that the work in question remained under criticism and regarding the same .
there were also news items.
21. DW4 B.B. Bhardwaj remained posted as Assistant Engineer, Sub Division, Namhol from 12.6.2000 to 4.3.2003. He deposed that the work in question was to be carried out within the jurisdiction of his Sub Division by the plaintiff. Although, r it was required to be started by 20.6.2000, but no work was started by the plaintiff. Before the execution of the work, the Contractor was required to install hot mix plant, which he was required to be got inspected from him (DW4). Neither any such plant was installed nor the same was got inspected from him. In this regard, he had sent a telegram Ext. DB to the plaintiff, but despite that no work was started. On 19.8.2000, he sent a letter to Executive Engineer, Bilaspur Ext. DW2/H informing him in this regard. He further stated that there was a lot of cement available in the store for carrying out the cement work. Since the road was already in existence, there was no need for making available the site to the plaintiff. In cross examination, the witness denied that the award letter was issued on 23.6.2000. He admitted that class 'A' contractor ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 22 was given licence only on seeing his man power and machinery.
.
This in entirety is the evidence of the parties.
22. Notably, the only reason on the basis of which the suit of the plaintiff has been decreed is contained in para20 of the judgment, which reads as under:
"20.......In case the award was required to be cancelled for the reason that the plaintiff had failed to comply with the terms and conditions of the work/agreement still it was the legal duty of the defendant to have issued him the show cause notice to the effect as to why the tender/award be not cancelled for the reason that he(plaintiff) had failed to start the work as per the terms and conditions. This clearly shows that no opportunity was afforded to the plaintiff before canceling the award/tender. ....."
To say the least, the reasons as recorded by the learned Court below are not only fallacious but absurd. No doubt, the plaintiff received the letter of award on 26.6.2000, but then admittedly he did not commence the work and rather tried to use the corrigendum issued to him as a ground for not commencing the work.
23. Now, adverting to the corrigendum Ext.PW2/A, the same reads as under: ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 23 HIMACHAL PRADESH PUBLIC WORKS DEPARTMENT .
"CORRIGENDUM"
In continuation of this office letter of award No.NBT/103Tender/CA/2000313247 dated 05/06/2000, for the work improvement to riding quality to NH88 (SH: ShimlaBilaspurHamirpur NadaunRanitalKangra road from Km 60/600 to 75/600 (SH: Providing Bitumenious Macadam Layer of 50 mm thickness by correcting old surface bitumenious concrets and P.C.C. road side drains Km. 60/600 to 75/600), awarded to Shri Kapil Dev Bansal (Sole Prop.) M/s Kapil Construction Engineers and builders,Glen Mire, Long Wood, Shimla (HP). The additional condition on letter of award is hereby imposed that the work shall be started with bonafied reasonable strength of Machinery and labour immediately as per period prescribed on the letter of award, otherwise work shall be cancelled by forfeiting earnest money deposited by the contractor.
Sd/ Executive Engineer, Bilaspur Divn.No.II, HPPWD, Bilaspur."
24. I really fail to understand how the corrigendum in any manner could have been taken to be considered or taken to be a hindrance in the execution of the work after all what the corrigendum required of the plaintiff was that he would start the work bonafide reasonable strength of machinery ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 24 and labourer as per the period prescribed as per letter of award. This condition did not in any manner alter the terms .
of the contract or even the work to the disadvantage to the plaintiff. The plaintiff was executing the work regarding National Highway, which could only be awarded to a Class 'A' Contractor and thus was expected to have the requisite machinery and desired strength of labourer so as to commence the work and complete the same within the time stipulated in the contract.
25. Here is a case where the plaintiff did not even commence the work, that too, for no real reasons. Merely because there was a delay of three weeks in issuance of the letter, the same itself could not have been made a ground for not commencing the work. The question of providing bitumen and spectrum layer would only arise after by correcting whole road, but admittedly, the plaintiff neither deployed any manpower nor machinery for the aforesaid purpose, that too, despite repeated reminders. It is evident that the plaintiff in fact had no intention to do the work. It is not the case of the plaintiff that he did not receive the letter of award dated 26.6.2000 and in fact he admitted the receipt thereof in his crossexamination. Had the intention of the plaintiff been ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 25 sincere, he would have commenced the work after receipt of the letter. But even after receipt of the telegrams, the same .
had no effect on him (plaintiff).
26. Now, the only ground which remains is whether the cancellation of the tender before the expiry of the six months worked to the disadvantage of the plaintiff. The Court below as observed above held that in absence of show cause notice to the plaintiff before terminating his contract, the action of the defendants was bad in law as the plaintiff still had about three months to complete the work. To say the least, the aforesaid findings, are without any basis. Had the plaintiff even shown the slightest of intention to commence the work, it could have been understood that the action of the defendants was illegal. But when the plaintiff failed to commence the work and did not even put in place a single machine or a labourer on the site, it was clear that the plaintiff had no intention to commence the work.
27. However, more importantly, it would be noticed that even after termination of the tender award, the plaintiff did not choose to write a single letter expressing his willingness to still execute the contract within the stipulated period. The possibility of executing the work as held by the ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 26 learned Court below would have arisen only if the plaintiff would have shown his willingness to execute the work. Once .
there is no willingness on the part of the plaintiff, the learned Court below could not have raised an assumptions to this effect.
28. The contract in question was cancelled on 26.9.2000 and the legal notice was issued by the plaintiff within three weeks of the cancellation of the contract on 17.10.2000. But even in this notice, the plaintiff nowhere expressed his desire or even willingness to complete the work within the stipulated period nor sought extension of the period which clearly proves that the plaintiff was never interested to execute the work in question.
29. It is vehemently argued by Mr. Suneet Goel, learned counsel for the plaintiff that the Executive Engineer had not issued any letter for procurement of bitumen despite several requests. Even this contention is without merit as admittedly the plaintiff had received the award of contract letter dated 26.6.2000 and that in itself was sufficient for him to have commenced the work.
30. As regards the quality of bitumen, the same was stipulated in the agreement that the bitumen of grade 6070 ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 27 was to be arranged by the plaintiff and as regards the quantity, obviously the same would have been procured by .
the plaintiff as per the requirement and in no given case the whole quantity of bitumen could be procured at once as the plaintiff was to carry out the work of laying down bitumen macadam layer of 50 mm thickness for a considerable length of the Highway. The entire quantity of bitumen would not have been/could not have been purchased or procured by the plaintiff at one go and even otherwise it is difficult to spell out the exact quantity of bitumen that may be required taking into consideration the nature of the work to be executed in this case. Moreover, the plaintiff never applied/approached the office of the defendants for any assistance, if any, required by giving the name of the Company from which he intended to purchase the bitumen. In case the plaintiff was serious, he could have procured the bitumen in the month of July and August, but since he did not purchase a single bitumen drum or barrel that clearly reflects and proves that he was not at all interested in commencing much less executing the work as awarded to him.
31. At the last ditch effort, Mr. Suneet Goel, learned counsel for the plaintiff would argue that the plaintiff was ::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 28 required to execute the work according to the designs, drawings and instructions issued by the defendants and for .
failure to do so, that too, despite repeated request of the plaintiff, the plaintiff had no option but to execute the work.
Even this contention is equally without merit and is rather fallacious. It is the specific case of the defendants that the designs and drawings are required only for works relating to building construction whereas for the work of the present kind the design and drawings were not at all required. For work in question what is relevant for strengthening of the road to improve the road quality are only the specification and schedule of quality, which in fact has been duly agreed in the contract agreement and duly signed by the parties.
32. It would be evident from the aforesaid discussion that it was the plaintiff, who in fact, failed to even commence the work and thereby committed breach in performance of the contract and, therefore, the defendants were well within their right in forfeiting the earnest money. This was a fit case where the steps for delisting or blacklisting the contractor, who have deprived the general public of good quality of road, that too, valid or justifiable ground, should have been taken.
::: Downloaded on - 01/10/2019 20:27:17 :::HCHP 2933. In view of the aforesaid discussion and for the reasons stated hereinabove, the appeal is accordingly .
allowed. The judgment and decree passed by learned Court below is setaside and the suit of the plaintiff/respondent is dismissed. Pending application(s), if any, also stands disposed of. The parties are left to bear their own costs.
1 October, 2019.
st
*GR*
r to (Tarlok Singh Chauhan),
Judge
::: Downloaded on - 01/10/2019 20:27:17 :::HCHP