Madras High Court
Thiru.P.Janakiraman vs Government Of Tamil Nadu on 3 January, 2025
Author: P.Velmurugan
Bench: P.Velmurugan
C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 03.01.2025
Coram:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
---
Civil Suit (Comm.Div).Nos.817 and 818 of 2012
and
Civil Suit (Comm.Div).No.576 of 2014
and
Appln.Nos.3192 and 3193 of 2014
----
Thiru.P.Janakiraman,
Civil Engineering Contractor,
PJR Square, No.8.B, 3rd Floor,
Sivashanmugam Street,
West Tambaram, Chennai-600 045. - Plaintiff in all the suits
Vs.
1. Government of Tamil Nadu,
Highways Department,
Represented by the Superintending Engineer (Highways),
Chennai Metropolitan Development Plan Circle,
Chennai-600 035.
2. Government of Tamil Nadu,
Highways Department,
Represented by the Divisional Engineer (Highways),
Chennai Metropolitan Development Plan Division-I,
Guindy, Chennai-600 032. .. Defendants in all the suits
Plaint filed under Order VII Rule 1 of CPC read with Order IV Rule 1 of the
Original Side Rules of this Court, and the suit numbered as C.S.No.817 of 2012, praying
for judgment and decree as follows:
(a) directing the defendants to pay to the plaintiff a sum of Rs.1,67,18,083/-,
together with interest thereon at 18% per annum on the principal sum of
Rs.1,31,30,703/- from the date of suit till the date of realisation and
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C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
(b) directing the defendants to pay the costs of the suit.
Plaint filed under Order VII Rule 1 of CPC read with Order IV Rule 1 of the
Original Side Rules of this Court, and the suit numbered as C.S.No.818 of 2012, praying
for judgment and decree as follows:
(a) directing the defendants to pay to the plaintiff a sum of Rs.2,05,85,090/-
together with interest thereon at 18% per annum on the principal sum of
Rs.1,61,67,925/- from the date of suit till the date of realisation and
(b) directing the defendants to pay the costs of the suit.
Plaint filed under Order VII Rule 1 of CPC read with Order IV Rule 1 of the
Original Side Rules of this Court, and the suit numbered as C.S.No.576 of 2012, praying
for judgment and decree as follows:
(a) directing the defendants to pay to the plaintiff a sum of Rs.8,03,24,691/-
together with interest thereon at 18% per annum on the principal sum of
Rs.5,56,89,914/- from the date of suit till the date of realisation, and
(b) directing the defendants to pay the costs of the suit.
For plaintiff : Mr.N.Manokaran in C.S.Nos.817 and 818 of 2012 and
Mr.V.Srikanth in C.S.No.576 of 2014
For defendants in all suits : Mr.R.Ramanlal, Addl. Advocate General,
assisted by Dr.S.Suriya, Addl.G.P. (Civil Side)
COMMON JUDGMENT
Page No.2/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Pleadings in C.S.No.817 of 2012:
Plaint averments:
The plaintiff is engaged in the business of undertaking contracts for laying of roads, construction of bridges, culverts and other allied civil works. The plaintiff is a Class-I contractor in the Highways Department, State Level in the State of Tamil Nadu and has executed several Government works for Highways and other Department's road works.
2. The Department is the Government of Tamil Nadu, represented by the Superintending Engineer, Highways, Chennai Metropolitan Development Plan Circle, Anna Salai, Nandanam, Chennai-600 035 and the Divisional Engineer, Highways, Chennai Metropolitan Development Plan, Division-1, Guindy, Chennai-600 032.
3. The Chief Engineer, Highways, METRO, Alandur, Chennai-600 016, had invited tenders for the work of widening two lane to four lane and strengthening of Mount- Madipakkam Road, K.M.1/6--3/0". The plaintiff in his usual course of business, submitted his tender for the above work on 15.04.2008, while evaluating the tenders by the Chief Engineer, Highways, Metro, Chennai-600 016. The plaintiff was found to be the lower tenderer among others. The Chief Engineer, Highways, Metro, Chennai, had issued the intimation of acceptance of plaintiff's tender for a contract value of Rs.2,94,74,653/- by Letter No.784/2008/SDO, dated 14.08.2008. The agreement for the same had been concluded on 03.11.2008 (L.S.Agreement No.27/2008-2009, dated 03.11.2008). The period of contract fixed for completion was 12 months as per the Page No.3/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) above agreement.
4. The Agreement had 4 schedules which forms part of the contract, namely Schedule A to D. Schedule A -- contains the description of items to be executed by the plaintiff, the quantity to be executed, the relevant MORT & H Clauses and the rates for the work to be executed. Schedule--B contains list of drawings i.e. Key map, typical cross section of Road -- two numbers and cross section of Culvert 1 No. Schedule--C contains descriptive specification report, descriptive source of materials and lead statement and special conditions of contract. Schedule--D contains the Rules for the provisions of health and sanitary arrangements for workers.
5. The date of commencement of the work as 03.11.2008. The period of contract for completion was 12 months. Targeted date of completion was 02.11.2009 and date of completion of work was 18.03.2011.
6. The details for the delay in completion of the subject work are as follows:
(a) In the letter dated 22.05.2009, the plaintiff has submitted to the second defendant as follows:
The entire length of the road i.e. K.M 1/6 - 3/0 lies in built-up area, encroachments and market area. Hence, it was not possible to commence the work. Months were passing, but the Department had not taken any tangible action to acquire the required area of land for the widening work. Repeatedly, the petitioner was approaching the concerned Departmental Engineers to give free site for the work, in person and through letters. No reply was received by the plaintiff. Unnecessarily, the plaintiff was put to financial hardship and loss and the same has to be compensated to Page No.4/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) the plaintiff by the Department. Hence, the plaintiff requested that the Divisional Engineer (H), CMDP, Division-1, to acquire the required lands, evict the encroachments and also the market and pave way to proceed with the work, or, close the contract and settle the plaintiff's account smoothly as per the Rules in force. There was no response from the second defendant.
(b) Again, the plaintiff, by letter dated 21.07.2009 had requested the second defendant to acquire required area of lands, evict the encroachments and the markets.
Due to delay in handing over the free site, the work could not be proceeded with, for which, the Department alone is responsible. Hence, again the plaintiff has requested the second defendant to close the contract and settle the account and also requested to refund the EMD and ASD, and for which also, there was no response from the secondd defendant.
(c) Hence, the plaintiff, by letters dated 04.09.2009, 17.11.2009 and 23.12.2009, had requested the second defendant to close his account duly refunding the EMD, ASD and retention money, failing which, the plaintiff has no other option left with except seeking remedy as per the terms and conditions of contract by including the two claims, i.e. idling charges for the machineries and site Engineers (TAs) and prevented the profit earnings by way of not handing over the site for execution.
(d) At this stage, the Assistant Engineer (H) Section IX - 1/c, CMDP, Division-1, had issued a Telegram, dated 20.05.2010, with a post copy confirmation as follows:
"Lot of Pot-holes and patches were developed in K.M.1/6 - 3/0 of Mount- Madipakkam Road. Attend these pot holes immediately in war-footing basis to avoid any Page No.5/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) public inconvenience and criticism. Avoid any delay in this regard", in response to which, the plaintiff replied by letter dated 20.06.2010 after attending pot-holes and patches, stating as follows:
"I wish to submit that the work of widening two lane to four lane and strengthening of Mount-Madipakkam Road K.M.1/6 - 3/0 has been entrusted to me vide reference 1st cited for a contract value of Rs.2,94,74,653/-.
The period of contract fixed for completion was 12 months. But the site for execution has not been handed over to me even up to 20.05.2010 i.e. even after a lapse of 18-1/2 months time from the date of agreement. This delay causes time over run and cost over run. This has to be compensated to me by the department. Further I wish to submit that all of a sudden on 21.05.2010. I have received a Telegram from the concerned Assistant Engineer (H), vide reference 8th cited to attend the lot of pot holes and patches developed in K.M.1/60 - 3/0 of Mount Madipakkam road duly referring the agreement 18th cited.
In this connection, I would like to submit that the department, as well as the concerned Assistant Engineer(H) without considering my letters under reference 2nd to 7th cited for a lapsed contract has issued a Telegram and Post copy confirmation (Ref.8th cite0d) to attend pot holes and patches. However to maintain with a good will, with the Highways CMDP-Divisional Engineer and his representatives, I have carried out and covered the pot holes and patches and executing widening work wherever possible for a minimum width of widening site shown and it will be completed within a month's time.
Page No.6/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) To widen the entire area the department is to hand over the free site to me. Even as on this date the department has not acquired/evicted the required lands for widening for which the department alone is solely responsible and attributable and the prolongation of contract by the department is created a loss of profit and over heads to me. This has to be compensated by the department to me.
Further I submit that to complete the entire work after handing over the free site, it requires a time for another 9 months from the date of handing over of free site.
I therefore, request that the department may be pleased to grant extension of time according to the status prevail as on date for acquisition/eviction of required lands and make the contract alive and also request that payment for the work done now as requested by the Assistant Engineer (H) CMDP-Division-1, Section-IX I/c. Chennai- 600032 may be pleased to pay to me at the earliest."
(e) The Assistant Engineer (H) CMDP Division-1, Sub-Division-1, Chennai-600032 by a Letter No.01/AE1/CMDP-1/Mount-Madipakkam Road/2010 dated 27.07.2010 has informed to the plaintiff stating that:
"In K.M. 1/6-3/0 widening work is in progress from chainage 1/6-2/8 (Right Side) and 2/0-2/050(Right side) as per the available ROW.
(i) The work has to be speeded up and should be completed before 20.08.2010.
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(ii) Patches formed in the riding surface have to be attended immediately.
Moreover, necessary barricades, signs, lights and other adequate warning devices are to be placed at work site to protect the work and to provide safety and convenience for the public.
Also, Honourable Minister for Highways and Minor Ports is proposed to visit Mount-Madipakkam Road within 3 days. Also, you are hereby requested to remove the surplus materials and debries along the side berms and over the widened surface. Patches formed on the riding surface should be attended immediately at war-footing basis."
(f) That apart, the second defendant, without considering the hindrances such as delay in acquisition of required lands, delay in eviction of encroachments and fine of Rs.1000/- by a Letter No.427/2009/A1, dated 15.09.2010 and granted extension of time upto 31.10.2010. Again the second defendant has imposed a fine of Rs.10,000/- by a Letter No.427/2009/A1, dated 20.09.2010. Once again the second defendant by a Letter No.427/2009/A1 dated 29.09.2010 has imposed a fine of Rs.1,00,000/- (received on 04.11.2010). It reveals that the second defendant without handing over the free site for execution, he has imposed fine on three times, viz., 1st time at Rs.1,000/- on 15.09.2010, 2nd time at Rs.10,000/- on 20.09.2010 and 3rd time at Rs.1,00,000/- on 29.09.2010. (The total amount is Rs.1,11,000/-) , which are to be paid within 14 days three times fine imposed totally to a sum of Rs.1,11,000/- which is against the principles of natural justice and against the terms and conditions of contract. Immediately, on Page No.8/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) receipt of the second defendant's two letters, dated 15.09.2010 and 20.09.2010, the plaintiff has by a letter dated 18.10.2010 requested the second defendant to withdraw the impugned orders of fine imposed at two times for Rs.1,000 + 10,000 = Rs.11,000/- and again, on receipt, 3rd imposition of fine at Rs.1,00,000/- on 29.10.2010 (DE's Letter dated 29.10.2020 dispatched on 02.11.2010 received on 04.11.2010) from the second defendant, the plaintiff by letter dated 18.10.2010 and 08.11.2010, had requested the second defendant to withdraw all the three impugned orders of imposition of fine amounting to Rs.1,11,000/- and requested to grant EOT upto 30.11.2010 so as to finalize the final bill.
(g) Without considering the above, in respect of the the plaintiff's request, the second defendant had granted suo-motu extension of time upto 31.03.2011 with a fine of Rs.1,000/- by letter No.427/2009/A1, dated 31.01.2011. The plaintiff had completed the work in all respects wherever free site was handed over to him and requested the second defendant to make payment of final bill by letter dated 28.02.2011. Accordingly, the defendant had paid the final bill amounting to Rs.97,86,108/- on 30.03.2011 and the same had been received by the plaintiff "under protest" on 30.03.2011 itself. The first defendant has issued the Completion Certificate by Memo No.CC/2010/CR(5) years dated 30.03.2011, wherein the first defendant has admitted that in all the items of work, there are savings due to non-availability of Road width for execution. This is a clear admission made by the defendants that have not handed over the full free site to the plaintiff for execution and hence, treated this contract as completed.
(h) Out of the value of contract of Rs.2,94,74,653/-, the second defendant had Page No.9/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) identified the available site for execution and completed to a value of Rs.97,86,108/-. Thus, the second defendant had prevented the plaintiff to execute the work to a tune of Rs.1,96,88,545/- (Rs.2,94,74,653 (-) 97,86,108 = Rs.1,96,88,545/-. Therefore, the following claims have arisen out of this contract and the same are submitted to the second defendant for redressal by letter dated 18.04.2011, with a copy to the first defendant:-
Claim No.1 : Request to make payment of compensation for the payment made to the Technical Assistants employed for the work with effect from 03.11.2008 to 03.06.2010 - Rs.30,02,000/- :-- As per Clause 8 of 11 commercial conditions of contract, he has to employ two B.E.(Civil) Engineers + six Diploma holders in Civil Engineering. Accordingly, the plaintiff employed 2 BE Civil Engineers and 6 Diploma holders in Civil Engineering. Accordingly, the plaintiff had employed 2 BE (Civil Engineers) and 6 Diploma in Civil Engineering holders exclusively for the above work.
The above said Technical Assistants were paid by the plaintiff for the idle period also, due to delay in acquiring required lands/eviction of buildings and markets by the defendants with effect from 03.11.2008 to 03.06.2010, i.e. for 19 months as detailed below:
(i) BE degree holders in Civil Engineering, i.e. 2 Nos. @ Rs.25,000/- per month, each for 19 months = 2 x 25000 x 19 = Rs.9,50,000/-.
(ii) Diploma holders in Civil Engineering - 6 Nos. @ Rs.18,000/- per month each for 19 months = 6 x 18,000 x 19 = Rs.20,52,000/-.
The total payment made = 30,02,000/- (Rs.9,50,000 + 20,52,000). Page No.10/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) At no fault on the part of the claimant, he has incurred an extra expenditure of Rs.30,02,000/- as payments to the Technical Assistants for the delay in handing over of free site for execution, i.e. for the idel period.
(ii) Claim No.2: Request to make payment of compensation for the prevention made by the Department for the completion of entire work - Rs.19,68,855/-. The Department had not handed over the free site for execution and completion of the work. The defendants themselves have admitted in Completion Certificate issued by the first defendant by Memo No.CC/2010/ /CR(5) years, dated 30.03.2011 in all the items of the work, as follows:
(a) Savings in quantity due to non-availability of road width as per estimate (for items 1 to 6 & 9, 10, 12, 13, 14 and 15).
(b) Centre median not provided due to non-availability of road width, hence, quantity increases due to increase in area (for items 7 and 11).
Hence, in the above context, the plaintiff has received the final bill on 30.03.2011, under protest, for an amount of Rs.97,86,108/- and hence, the plaintiff had totally received a sum of Rs.97,86,108/- as final bill. Therefore, the plaintiff had proved beyond doubt that the Department, by way of non-handing over the full site for execution as detailed below:
(i) The value of contract - Rs.2,94,74,653/-
(ii) Total value of final bill - Rs.97,86,108/-
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Page No.11/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Presented value of work (i) - (ii) Rs.1,96,88,545/-
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Normally, the contractor will expect a profit margin of 10% minimum on the value of contract. Therefore, the prevented profit earnings at 10% value of left out work due to land acquisition and encroachments = Rs.1,96,88,545/- = Rs.1,96,88,545 x 10/100 = Rs.19,68,854.50, i.e. Rs.19,68,855.00 Claim No.3: Request to make payment for the loss of profit and over-heads met with by the plaintiff due to prolongation of contract at no fault on him. Rs.80,48,848/- :
For this, it is the stand of the plaintiff that due to delay in handing over of free site and due to delay in acquisition of required lands for widening due to delay in eviction of encroachment, the Department was extended the period of contract from 02.11.2009 to 18.03.2011 and the work has been completed wherever the site had been handed over to the plaintiff.
The loss of profit and over-heads had been arrived at based on HUDSON's formula, i.e. Percentage x contract sum x extended period in weeks, divided by contract period in weeks.
where the percentage is equal to 20% (i.e. profit 10% and over-heads 10%) Contract sum = Rs.2,94,74,653/-
Contract period = 12 months = 52 weeks from 03.11.2008 Date of completion = 18.03.2011 Page No.12/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Extended period = 02.11.2009 to 18.03.2011 = 1 year 4 months 16 days = 52+17+2 = 71 weeks.
Loss of profit & Over-heads = (20/100) x 29474653 x 71/52=Rs,80,48,847.55, i.e. Rs.80,48, 848/-.
Claim No.4 : Request to refund the fines imposed and recovered by the Department by illegal means. Rs.1,11,000/-.
As per the plaintiff, the second defendant had not handed over the free site for execution. This action of the second defendant itself is a Breach of Contract, such being the facts, the second defendant had imposed fine on three times as given below:
(i) First time on 15.09.2010 = Rs.1,000/-
(ii) Second time on 20.09.2010 = Rs.10,000/-
(iii) Third time on 29.09.2010 = Rs.1,00,000/-
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Rs,1,11,000/-
==========
Within five days' time, the above said fines had been imposed and recovered by the second defendant by illegal means. Therefore, the plaintiff made representation on 18.10.2010 and 08.11.2010 to the second defendant to withdraw to the fines imposed, since the Department alone held responsible for the delay in handing over of site.
7. The total value of the above said four claims are as under:
Claim No.1 - Rs.30,02,000/-
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C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
Claim No.2 - Rs.19,68,855/-
Claim No.3 - Rs.80,48,848/-
Claim No.4 - Rs.1,11,000/-
============
Total Rs.1,31,30,703/
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for which, according to the plaintiff, there was no response from both the defendants till 02.03.2012.
8. Hence, for the reasons stated above, the plaintiff issued notice, dated 03.03.2012 under Section 80 of the Civil Procedure Code (i.e. CPC) to the defendants calling upon them to pay the plaintiff the abovesaid legitimate dues, with interest. But there was no reply to the same from both the defendants.
9. As per Clause 11 of the "commercial conditions of the agreement, dated 03.11.2008", in case of any dispute/difference between the parties to the contract, either during the progress or after the completion of the work or after determination/abandonment of the contract or any matter arising there-under and if the claim value exceeds Rs.2 lakhs, the same shall be settled by filing a Civil Suit before a Civil Court, having jurisdiction for decision. Hence, the plaintiff had filed the present suit. Therefore, the plaintiff is filing the present suit before this Court as per the clause of the agreement between the parties, after giving notice under Section 80 CPC to the defendants within the period of limitation. Hence, the plaintiff has filed the present suit in C.S.No.817 of 2012 for the prayers stated supra.
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10. Plaint averments in C.S.No.818 of 2012:
The plaintiff is engaged in the business of undertaking contracts for laying of roads, construction of bridges, culverts and other allied civil works. The plaintiff is a Class-I contractor in the Highways Department, State Level in the State of Tamil Nadu and has executed several Government works for Highways and other Department's road works.
11. The Department is the Government of Tamil Nadu, represented by the Superintending Engineer, Highways, Chennai Metropolitan Development Plan Circle, Anna Salai, Nandanam, Chennai-600 035 and the Divisional Engineer, Highways, Chennai Metropolitan Development Plan, Division-1, Guindy, Chennai-600 032.
12. The Chief Engineer, Highways, METRO, Alandur, Chennai-600 016, had invited tenders for the work of widening two lane to four lane and strengthening of Mount-Madipakkam Road, K.M.1/6--3/0". The plaintiff in his usual course of business, submitted his tender for the above work on 04.02.2008, while evaluating the tenders by the Chief Engineer, Highways, Metro, Chennai-600 016. The plaintiff was found to be the lower tenderer among others and after negotiation with the plaintiff, the Chief Engineer, Highways, Metro, Chennai-600 016 had issued the intimation of acceptance of plaintiff's negotiated tender for a contract value of Rs.4,35,06,888/- by a Letter No.729/2008/SDO, dated 18.06.2008. The agreement for the same had been concluded on 29.09.2008 (Vide Agreement No.23/2008-2009, dated 03.11.2008). The period of contract fixed for completion was 12 months as per the above agreement. Page No.15/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
13. The Agreement had 4 schedules which forms part of the contract, namely Schedule A to D. Schedule A -- contains the description of items to be executed by the plaintiff, the quantity to be executed, the relevant MORT & H Clauses and the rates for the work to be executed. Schedule--B contains list of drawings i.e. Key map, typical cross section of Road -- two numbers and cross section of Culvert 1 No. Schedule--C contains descriptive specification report, descriptive source of materials and lead statement and special conditions of contract. Schedule--D contains the Rules for the provisions of health and sanitary arrangements for workers.
14. The date of commencement of the work was on 04.11.2008. The period of contract for completion was 12 months. Targeted date of completion was 03.11.2009 and date of completion of work was 18.03.2011.
15. The details for the delay in completion of the subject work are as follows:
(a) As per the letter of the plaintiff, dated 20.10.2008 addressed to the second defendant, the plaintiff had requested the second defendant to hand over "free site" at the earliest to commence the work.
(b) The site wherever free for execution has been handed over on 04.11.2008 and commenced the work on the same day.
(c) As per the plaintiff's letter dated 04.04.2009 addressed to the second defendant, it has been reported as follows:
(i) carried out work upto DBM between the stretch at K.M.0/770 and K.M.1/530, further work is in progress in this stretch.
(ii) The stretches between K.M.0/0 and 0/770 and Page No.16/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) K.M.1/530 - 2/0 lies in built up area and hence, there is no space to carry out any work. Hence, the plaintiff's machineries are kept idling at site for want of free site and because of this, the plaintiff put into heavy financial loss.
(iii) Request to acquire the required lands and hand over the free site for execution of the work.
for which, there was no response from the second defendant.
16. The plaintiff states that again he has requested the second defendant by letter dated 22.05.2009 as follows:
(i) DBM completed in K.M.0/770 to 1/530 centre median provided wherever possible.
(ii) K.M. 0/0 - 0/770 and K.M.1/530 - 2/0 lies in built up area.
17. The Department has not acquired the required area of land. For this delay, the Department is solely attributable and responsible, sine the machineries are kept idle at a site for want of space. Plaintiff was paying idle charges un-necessarily and put into loss.
18. As there was no response for the request relating to free site for completion of the contractual work, the plaintiff requested to close the contract and settle his account smoothly as per Rules in force, for which also, no response from the Department/defendants.
19. Repeatedly, the plaintiff has requested the second defendant by letters Page No.17/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
(i) dated 21.07.2009, (ii) dated 04.09.2009, (iii) dated 17.11.2009 and 23.12.2009 to hand over free site for execution or settle his accounts smoothly and the plaintiff further informed that, failing in the above request, the plaintiff has no other option left with except seeking remedy as per the terms and conditions of contract and includes some more claims such as idling charges for the machineries and site Engineers and prevented the profit earnings by way of not handed over the free site for execution.
20. In the peculiar situation prevailing at site, it is submitted that the second defendant has requested the plaintiff to complete the work within the available Row (Road of Way) by a letter No.1152/2009/A1, dated 20.09.2010 has issued a Notice alleging slow progress and imposed a fine of Rs.10,000/-, for which the plaintiff has furnished his reply in the letter dated 18.10.2010 that, "Now I am (plaintiff) carrying out the work where Row is available between chainage 500 to 2000. Due to L.A. pending between the chainage 0 to 500 the plaintiff unable to do any widening work as on today."
21. That apart, a minor bridge at K.M.1/10 is to be constructed. But this minor bridge falls within the Metro Rail Project. The CMDP Engineers are often discussing about the Metro Rail Project. They are discussing about the shifting of alignment. Hence, decision on the shifting of alignment is absolutely necessary to take up the construction of Minor bridge.
22. In view of the above, the plaintiff submitted that the delay in completion of the above work is solely attributable to the Department only. Hence I put into heavy financial loss and the same has to be compensated to me by the Department. However, Page No.18/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) the plaintiff stated that the entire work wherever Row is available will be completed within 15 days from today.
23. Therefore, the plaintiff has requested the 2nd defendant to withdraw the impugned fine of Rs.10,000/- imposed by the second defendant. Without considering the above facts, the second defendant once again by letter No.1152/2009/A1, dated 29.10.2010 has imposed a fine of Rs.1,00,000/- as alleged as slow progress of work.
24. On receipt of the above letter dated 29.10.2010 of the second respondent, the plaintiff has submitted the reasons for the delay in completion of the work due to delay in handing over of free site, by letter dated 08.11.2010 stating that in the earlier in the letter dated 23.12.2009, the plaintiff stated that in response to the Divisional Engineer's (H), CMDP, Division-1, Chennai-600 032, letter, the plaintiff wished to submit that in the letter cited 23.12.2009, the plaintiff stated that the contract period of 12 months was over on 28.09.2009 and hence, the contract/agreement for the above work has lost its value and not in alive. It is construed that the agreement has automatically came to an end. Even after a lapse of 15 months' time, the Department is not in a position to hand over the free site for execution. Therefore, the plaintiff requested that the Divisional Engineer (H), CMDP-Dn-1, Chennai-600 032, may settle my accounts i.e. EMD, ASD and Retention money at the earliest, failing which, according to the plaintiff, he has no other option left with except seeking remedy as per the terms and conditions of contract and include some more claims such as, (i) Idling charges for the machineries and site Engineers (T.As) and (ii) prevented the profit earnings by way of not handed over the free site for execution or which no reply from the Department. Page No.19/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
25. The department has admitted and instructed in the letter dated 27.07.2010 at Serial No.5 stating that the Road widening should be done for the ROW available at site and work should be completed before 20.08.2010. In this connection, the plaintiff submitted that the Department has admitted that they have not handed over to me the free site up to 27.07.2010, since they have not acquired the required land as on 08.11.2010.
26. Further, the plaintiff stated that, wherever site is available, he had carried out the work up to WMM and the entire work will be completed soon as the rain stops. Further, plaintiff also stated that there was no instruction received yet from the Department in respect of the construction of minor bridge at K.M.1/10, as it falls within the "Metro Rail Project".
27. Without considering the above factual position, the Division Engineer (H) CMDP-Dn-1, Chennai-32 has imposed fine as follows:
(i) On 20.09.2010 = Rs.10000.00
(ii) Ono 29.10.2010 = Rs.100000.00
------------------
Total Rs.110000.00
28. Hence, the plaintiff withdrew the work forthwith, without following the official procedures and without considering the facts imposition of fine is highly illegal and it comes under "Miss use of Powers".
29. Hence, the plaintiff stated that the Notice issued by the Divisional Engineer Page No.20/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) (H), CMDP-Dn-1, Chennai-32, is not at all warranted at that stage, since the work was going to be completed when the rain is over.
30. In view of the above, the plaintiff requested that the Divisional Engineer (H), CMDP-Dn-1, Chennai-32, may withdraw the fines imposed at two times as stated supra for an amount of Rs.1,10,000 at the earliest and grant EOT up to 30.11.2010 to keep the contract alive since the EOT granted up to 31.10.2010 in the Divisional Engineer's (H) CMDP, Division-1, Chennai -32 letter No.427/2009/A1 dated 15.09.2010, is over as on today (08.11.2010), so as to complete the work in the available ROW. To this request, there was no response from the second defendant.
31. However, the plaintiff has completed the work wherever Row was available on 15.02.2011 with great difficulty and heavy loss of finance and the same has been informed to the second defendant with a copy to the first defendant and requested payment of final bill.
32. The second defendant has paid the final bill on 30.03.2011 to a sum of Rs.34,78,399/- and the same has been received by the plaintiff duly signed UNDER PROTEST ON 30.03.2011. The total value of completed is for Rs.2,15,99,886/- as against the value of contract is Rs.4,35,06,888/-. In the meanwhile the 1st defendant has issued the completion certificate by a memo.CC/2010/ /CR (5) years dated 30.03.2011. In the completion certificate it may be seen that in all items of work there are savings due to "Non availability of Road width". It is a clear admission made by both the defendants in respect of free site is not available for execution of full work.
33. Since the plaintiff has received the final bill on 30.03.2011 "under protest", Page No.21/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) the plaintiff has submitted the following claims in detail for redressal by a letter dated 07.05.2011, to the second defendant with a copy to the first defendant :-
Claim 1 : Request to make payment of compensation for the idle period for the payment made to site Engineers (Technical Assistants) employed for the work with effect from 04.04.2009 to 27.07.2010 - Rs.24,88,500/- :
The plaintiff submits that in para 4 of his letter dated 07.05.2011 has clearly stated that his machineries with crews, staffs and site engineers were kept idle between 04.04.2009 and 22.07.2010 for want of free site for execution. Even then the plaintiff has now claimed only to the site Engineers who were kept idle for want of free site for execution i.e. 2 BE Holders and 6 Diploma Holders. Their salaries works out to Rs.24,88,500/- as detailed below:
1) BE Degree holders in Civil Engineering 2 Nos. @ Rs.25000/- per month each for 15.75 months = 2 x 25000 x 15.75 = Rs.7,87,500/-
2) Diploma Holders in Civil Engineering
6 Nos. @ Rs.18000/- per month each
for 15-75 months = 6 x 18000 x 15.75 = Rs.17,01,000/-
Total payment made 1 + 2
Rs.7,87,500/- + 17,01,000 ------------------------
Rs.24,88,500/-
=============
Claim No.2: Request to make payment of Rs.21,90,700/- due to prevention of Page No.22/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) profit earnings due to foreclosure of contract by non-handing over of site for the completion of work :
The plaintiff submits that the details furnished in para 1 to 6 of his letter dated 07.05.2011 are reiterated here again:
(i) The value of contract - Rs.4,35,06,888/-
(ii) Final Bill value (i.e. the work
done wherever Row is available)
Received payment - Rs.2,15,99,886/-
=============
(iii) Value of department prevented
to do further work (i) - (ii) Rs.2,19,07,002/-
(iv) 10% as profit on the amount of - Rs.2,19,07,002/- x 10 / 100 Rs.21,90,700.20 i.e. Rs.21,90,700/-
Claim No.3: Request to make payment for the loss of profit and over heads met with by me (plaintiff) due to prolongation of contract at no fault on me (plaintiff) Rs.1,13,78,725/- :
The plaintiff submits that he has claimed this claim as per HUDSON's formula for finding out the loss of profit and overheads due to prolongation of contract at no fault of the plaintiff.
Hudson's formula = percentage x contract sum x Extended period in weeks Page No.23/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Contract period in weeks where, Percentage = 20% (profit 10%, overheads 10%) Contract sum = Rs.43666888/-
Contract period = 12 months = 52 weeks from 29.09.2008 Date of completion = 18.03.2011 Extended period = 29.09.2009 to 18.03.2011 1Y 3M 20D = 52 + 13 + 3 = 68 weeks Loss of profit & over heads = 20/100 (x 43606888) 68/52 = Rs.11378724.55 i.e. Rs.1,13,78,725/-.
Claim No.4: Request to refund the fines imposed and recovered by the Department by illegal means : Rs.1,10,000/-.
The plaintiff submits that the second defendant has imposed a fine of Rs.10,000/- on 20.09.2010 and again a fine of Rs.1,00,000/- on 29.10.2010 Totally Rs.1,10,000/- at no fault of the plaintiff.The total value of the above said four (4) claims work out as follows:
Claim No.1 = Rs.24,88,500/-
Claim No.2 = Rs.21,90,700/-
Claim No.3 = Rs.1,13,78,725/-
Claim No.4 = Rs.1,10,000/-
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C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
=============
Total Rs.1,61,67,925/-
=============
for which, there was no response from the defendants. Hence, the plaintiff has once again reminded the second defendant with a copy to the 1st defendant. for which also no response from the defendant. The plaintiff submits that there was no response from both the defendants till 02.03.2012.
34. In the circumstances stated above, it had caused a notice dated 03.03.2012 under Section 80 of the Civil Procedure Code to the defendants calling upon them to pay the plaintiff the above said legitimate dues with interest. There was however no reply to the same from both defendants.
35. The plaintiff submits that as per Clause 11 of the "Commercial conditions of the agreement dated 29.09.2008", in case of any dispute difference between the parties to the contract either during the progress or after the completion of the work or after determination / abandonment of the contract or any matter arising there under and if the claim value exceeds Rs.2 lakhs the same shall be settled by filing a civil suit before a civil Court having jurisdiction for decision". Therefore the plaintiff is filing the present suit before this Court as mandated by the Clause of the Agreement between the parties after giving notice under Section 80 of the CPC to the defendants within the period of limitation. Hence, the plaintiff has filed the present suit in C.S.No.818 of 2012 for the prayers stated supra.
Written statement filed by the second defendant in C.S.No.817 of 2012: Page No.25/170
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36. The Chief Engineer (Highways), METRO, Alandur, Chennai-600 016, invited tender for the work of widening two lane to four land and strengthening of Mount-
Madipakkam Road Km 1/6 - 3/0. The tender was awarded to the plaintiff-P.Janakiraman, since his tender was the lowest responsive and the agreement for the same had been concluded, vide agreement No.27/2008-2009, dated 03.11.2008, for a contract value of Rs.2,94,74,653/-. The period of contract was 12 months. The site was handed over to the plaintiff on 03.11.2008 and instructions were given to him to commence the work on the agreement day, i.e. on 03.11.2008 itself.
37. The plaintiff was not able to commence the work from the date of handing over of site, i.e. from 03.11.2008 onwards. The statement of the plaintiff in his letter, dated 03.03.2012 that the work has been stopped by the land owner on 03.11.2008 is not correct, as he or his representatives did not come to the site to start the work. The plaintiff has started the work only after a lapse of 17 months, as evidenced upto page 57 of measurement book 337 and upto page 88 of measurement book 372 with the date of measurement as 06.05.2010.
38. The entire length of the widening area lies in built-up area, encroachment and market etc., only land acquisition is pending and hence, the plaintiff was asked to execute the work within the available right of way (ROS). However, the plaintiff has not achieved the rate of progress for the available ROW and hence, the penalty was imposed on various occasions.
39. Only the plaintiff had requested to settle his accounts, such as EMD, ASD, retention money, etc., with some more claims like:
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(i) idle charges for machineries and Site Engineers (TAS);
(ii) Presented the profit earnings by way of not handing over the site for execution. The plaintiff has just mentioned certain claims only without furnishing the necessary details to substantiate their claims.
40. The site has been handed over to the plaintiff on 03.11.2008 itself and not on 20.05.2010 as alleged by the plaintiff. The plaintiff's statements in this regard, are false, and the said factum of handing over of the site can be witnessed on perusal of the measurements recorded for the work done up to page 57/M-Book 337 and upto page 88/M Block 372 respectively. From the beginning of the agreement, the plaintiff was requested to carry out the widening work within the available right of way (ROW) and hence, the plaintiff has been levied penalty on various occasions for non-compliance of the rate of progress for the given ROW. Regarding attending patches and pot-holes, it is the sole responsibility of the plaintiff (contractor) to carry out any repairs noticed in the completed works within the defect liability period. Therefore, the work of attending pot- holes and patches are not eligible for payment as alleged by the plaintiff.
41. Further, fine was imposed by the defendant on 15.09.2010, 20.09.2010 and 29.09.2010 because of the slow progress of work done by the plaintiff in the available ROW. As per the agreement concluded with the plaintiff by the first defendant, the fine can be imposed upto 5% of the contract value, i.e. Rs.14,77,733/-, whereas the defendant has imposed a fine of Rs.1,11,000/- only. The action of the defendants are only as per the scope of the terms of the mutually agreed agreement.
42. The plaintiff was levied penalty only for the inordinate delay in the progress Page No.27/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) of work in the available ROW. The plaintiff has completed the work in the available ROW only on 18.03.2011 as agreed by the plaintiff in his letter, dated 18.04.2011. Accordingly, the final bill was paid to the plaintiff by the defendant on 30.03.2011. Since the plaintiff neither mobilised any men and machineries, nor collected/stored/processed any materials required for the balance value of work.
43. The plaintiff has not done any work for the period from 03.11.2008 to 03.06.2010 for Rs.30,02,000/- and the plaintiff has not engaged any Engineers during the said period, and he had not brought any Engineers to the site. The plaintiff has not furnished the details mentioned below in support of the first claim:
(i) The actual date of mobilisation of the Engineers;
(ii) The intimation given to the Engineer (The Divisional Engineer) about the mobilisation of the Engineer.
(iii) The name of the Engineers said to be employed by the plaintiff for the work.
(iv) The payment details along with the acquittances.
(v) The details of the works carried out by the plaintiff's Engineers.
(vi) Diaries of the said site Engineers.
(vii) Days of idleness of the plaintiff's Engineers and the payment made by the plaintiff to his site Engineers with proof of having made the payment. Hence, the claim made by the plaintiff with regard to the alleged employment of site engineers charging 03.11.2008 to 03.06.2010 is not eligible.
44. The defendant has not prevented the plaintiff for completion of the entire work. As per Clause 105.03 of preliminary specification to SSRB (this forms the part of Page No.28/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) the mutually signed agreement), the plaintiff ought to have furnished the detailed programme of each of the major elements of the work for approval to the Engineer-in- charge of the work (and in this case, the Divisional Engineer - second defendant). The plaintiff failed to furnish any such programme. The plan of work to be furnished, the equipment to be used and the amount and character of the labour to be employed, should have been furnished by the plaintiff and approved by the Engineer, whereas, the plaintiff had conveniently ignored these aspects and wrote only letters to build the case for the claims. In this context, the plaintiff had not furnished the following details:
(i) Number of plants mobilised by the plaintiff for executing the work with current calibration certificate;
(ii) The actual date of mobilisation of the plants and the make of the plants;
(iii) The intimation given to the Engineer-in-charge about the mobilisation of plant;
(iv) The copy of the definite approved programme of works and its limits with the mobilisation of plants;
(v) The plant log books and the number of days worked and number of idle days along with log books;
(vi) The name of the Site Engineers (Technical Assistants) employed by the plaintiff for the work;
(vii) The payment details along with the acquittances;
(viii) The details of works carried out by the plaintiff's site Engineers;
(ix) Wages and diaries of the plaintiff's Site Engineers and Page No.29/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
(x) Days of idleness of the plaintiff's Site Engineers and the payment made to them with the proof of having made payment. Further the alleged claim of payment of compensation for prevention made by the Department for completion of work, is not having any valid substance. Imposition of fines for slow progress of work of the plaintiff in the available width of the road, proves that there was no prevention of work by the defendant. Hence, the claim made by the plaintiff with regard to the said prevention made by the Department (defendant) for completion of entire work is not eligible and the same may be rejected.
45. With regard to the claim of loss of profit and over-heads, the prolongation of contract was only due to the fault of the plaintiff for not completing the work within the available width as per the fixed time frame. Since there is no definite programme of works furnished by the plaintiff for progressing the work and hence, the anticipation of profit is not quantified. Prolongation of contract period is purely due to plaintiff's negligence and therefore, the question of payment for the loss of profit, does not arise.
46. Moreover, the claims made by the plaintiff are not at all admissible, as they did not contain any authenticated documents.
47. The site was handed over to the plaintiff immediately after signing of contract documents, i.e. on 03.11.2008 itself and even after repeated instructions by the defendant's office, the plaintiff has not carried out the work within the stipulated time fixed. The plaintiff has been frequently advised to complete the work within the available width of the road and even in the available width also, the plaintiff had not completed all the work in the specified time. The fine imposed by the defendant, is just Page No.30/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) too lower than the actual entitlement. The claim made by the plaintiff with regard to the loss of profit, is not all admissible and deserves to be rejected. Hence, for the above reasons, the plaint may be rejected.
Pleadings in C.S.No.576 of 2014:
Averments made in the plaint:
48. The plaintiff is engaged in the business of undertaking contracts for laying of roads, construction of bridge, culverts and other allied civil works. The plaintiff is a Class-I contractor in the Highways Department, State Level in the State of Tamil Nadu and has executed several Government works for Highways and other roads.
49. In pursuance of call of tenders for the work of "widening from single lane to two lane and strengthening of Sholavaram-Orakkadu-Arumanthai-Perumallaivoyal Road, K.M.0/0-10/- by the Chief Engineer (H), Metro, Alandur, Chennai-600 106, the plaintiff had also participated in that Tender along with others and found that the plaintiff's tender was the lowest and the intimation of acceptance of tender was issued by Letter in No.784/2008/SDO, dated 14.08.2008 for a contract value of Rs.9,50,12,505/- @ 4.93% above estimate rate (2008-2009). The plaintiff submitted F.D.R. for Rs.2,67,000/- along with the tender as E.M.D. obtained from South Indian Bank Ltd., bearing No.996439, dated 10.09.2008. The plaintiff submitted the further security deposit (F.S.D) amount of Rs.7,61,000/- before execution of agreement which is detailed as under: (i) Rs.1,65,000/- No.B 996280, dated 30.01.2008, South Indian Bank Ltd., Mount Road, Chennai. (ii) Rs.5,96,000/- deposit receipt No.1589818, dated Page No.31/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) 17.09.2008, City Union Bank Ltd., Mount Road Branch, Chennai. Further, an agreement was thereafter entered into between the plaintiff and the Chief Engineer (H), Metro, Alandur, Chennai-16 on 19.09.2008, reflecting the terms and conditions under which the work was to be executed for a total contract value of Rs.9,50,12,505/-, vide C.R.Agreement No.20/2008-09, dated 19.09.2008. The period fixed for completion of the above work was 15 months as per the above agreement. The work was commenced on 19.09.2008. The targeted date of completion was 18.12.2009. The plaintiff made all efforts to complete the work within the stipulated period of contract. But the contract was ordered to foreclose by the first defendant on 23.01.2012 even after lapse of 26 months of the contract, vide defendant's letter N.1343/2011/JDO, dated 23.01.2012, stating that for want of free site for execution based on the recommendation of the second defendant.
50. By letters, dated 19.01.2009, 04.04.2009, 22.05.2009, 10.08.2009, 04.09.2009, 12.10.2009, 17.11.2009, 23.12.2009, 24.05.2010, 01.11.2010, 30.11.2010, 02.12.2010, 28.02.2011 and 07.06.2011 have clearly requested the defendants to hand- over free site for execution and completion of the work. But the defendants were not in a position to acquire the required lands for execution of: (i) widening the road on both sides, (ii) construction of 4 Nos. of culverts and (iii) construction of drain. Thus, the first defendant has ordered for foreclosure of the contract on 23.01.2012, vide memo No.1343/2011/JDO, dated 23.01.2012 based on the recommendation of the second defendant by letter No.1631/2011/A1, dated 19.01.2012 duly admitting the delay in acquisition of required lands and delay in shifting of water main and the electrical and Page No.32/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) other cables.
51. Without handing over of free site and without shifting of water mains and electrical cables, the second defendant has unnecessarily imposed fines and recovered a sum of Rs.25,000/- on 17.02.2011, for which, the plaintiff, by his letters dated 28.02.2011, 07.06.2011 and 05.07.2011, requested to withdraw the impugned fine recovered at Rs.25,000/-. That apart, without considering the above valuable and genuine reasons, the second defendant has again and again, without issuing any notice, had recovered Rs.1,97,106/- in LS.IX and part bill and another sum of Rs.9,93,021/- in LS X and part bill in the name of liquidated damages. The total amount of liquidated damages comes to Rs.11,90,127/- which had been recovered without any prior intimation or notice. As per G.O.Ms.No.281, Highways and Minor Ports (HFI) Department, dated 13.09.2010, a notice was to be served on the contractor under P.S.No.109.05(a) of PS to SSRB duly mentioning the shortfall in the mile stone progress and then only, penalty can be imposed on the contractor. This procedure has not been followed by the second defendant.
52. The Recovery of Rs.11,90,127/- made under liquidated damages by the second defendant, is not just and proper, for which, the plaintiff, by letters dated 07.06.2011 and 05.07.2011, has requested both the defendants to release the above said amount of liquidated damages ordered by the second defendant. Considering the delay in execution of work at no fault on the part of the plaintiff, and since the free site has not been handed over for execution, admitting the facts, the second defendant has recommended the same to the first defendant, seeking orders for refund of the amount Page No.33/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) of Rs.11,90,127/- to the plaintiff by a letter No.1631/2011/A1, dated 24.01.2012. Accepting the recommendation of the second defendant, the first defendant, by Memo No.1343/2011/SOAPM road 0/0 - 10/0 / JDO, dated 25.01.2012 has ordered to refund 75% of the LD amount to the plaintiff. But the second defendant who has already been recommended for refund, has not yet refunded the same to the plaintiff and illegally holding the said amount. The plaintiff, by letters dated 06.03.2012, 04.06.2012 and 11.08.2012, has repeatedly requested the second defendant for refund with a copy to the first defendant, for which, there was no response either from the first defendant or from the second defendant till this date. Therefore, it is proved beyond doubt that the second defendant has failed to obey the orders of the superior/first defendant and unnecessarily keeping the amount with him. Hence, the plaintiff is entitled to receive Rs.11,90,127/- from the defendants.
53. The said agreement provides 'price variation clause' wherein, it is stipulated that if prices of construction materials such as cement, steel, bitumen, metal etc., P.O.L and labour increases, the same should be added and paid to the contractor and prices of the above said construction materials, P.O.L and labour decreases the same which should be recovered from the contractor as per G.O.Ms.No.60, Public Works (G2) Department, dated 14.03.2008 and as per G.O.Ms.No.101, Public Works (G2) Department, dated 10.06.2009. These Government Orders clearly spelt out that the price adjustment shall be calculated only on the Departmental Estimated Cost of the work. Contrary to the above stipulations, the Divisional Engineer/second defendant worked out by his own method and recovered a sum of Rs.28 lakhs in the 5th and Part Page No.34/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) bill and a sum of Rs.5.80 lakhs in the 6th & part Bill. Therefore, the total amount of recovery made by the second defendant is Rs.28 lakhs + Rs.5.80 lakhs = Rs.33.80 lakhs and afterwards from the first and part bill to fourth and part bill and 7th and part bill to till 12th and part bill, no price adjustment had been worked out and paid to the plaintiff. As per the stipulations of the said two G.O., he worked out the price variation from first and part bill to 13th and final bill, that comes to Rs.2,01,36,128/-, but at the same time, the second defendant calculated the price adjustment on minus side as Rs.17,97,241/- and recovered the same along with 13th and final bill as against the claim of Rs.2,01,36,128/- of the plaintiff.
54. The Chief Engineer, Buildings, PWD, Chennai-5, had issued a clarification in respect of the method of calculation of the price adjustment, since he is the authority for issuance of the said two price adjustment Government orders, by Letter No.HDO(A).2933/d011, dated 19.01.2011 and the same has been communicated to the plaintiff on 21.02.2012 and the same has been submitted to the second defendant by the plaintiff, wherein, it has been specifically clarified that the price adjustment shall be calculated only on the departmental estimated cost of the work, which are technically sanctioned by the authority designated as per Clause (iii) of sub-para (1) of paragraph 3, as amended in G.O.(Ms).No.101, P.W(G2) Department, dated 10.06.2009 and the rates adopted for justification while acceptance of tender shall not have any role in that regard and should not be considered for P.A.
55. The second defendant calculated the price variation in the final bill as Rs.33,80,000/- duly recovering/adjusting the minus amount of Rs.17,97,241/-, he paid Page No.35/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) a sum of Rs.15,82,759/- as price variation (i.e. 3380000-1797241 = 1582759) without considering the Chief Engineer's Buildings, PWD clarification. As stipulated in the said two Government orders and as per the above clarification of the clause, the plaintiff has worked out the price variation amount as Rs.2,01,36,128/- and also eligible to receive the amount from the defendants. Since the second defendant has already recovered a sum of Rs.17,97,241/- as minus amount from price adjustment. This amount is to be added with the price adjustment actually to be paid to the plaintiff, i.e. Rs.2,01,36.128/- + Rs.17,97,241/- = Rs.2,19,33,369/- as per the above said G.Os. and clarification issued by the Chief Engineer, PWD, Buildings. Hence, the plaintiff is entitled to receive an amount of Rs.2,19,33,369/- as price variation from the defendants.
56. It is the further averment of the plaintiff that his machineries were kept idle at site for want of free site for execution. The plaintiff, by letter dated 19.01.2009 has spelt out the impediments, bottle-necks, hurdles and hindrances met at the site during the execution and brought to the knowledge of the second defendant as detailed below and the existing condition of the Road K.M. wise is furnished hereunder:
(i) KM 0/0 - 1/0: The width of the existing road is less than 3.75 meters. There are lamp posts and telephone posts. They have to be removed/shifted. Then only, even and compacted surface can be achieved. The provision for B.T. is to be given for existing stretch of road.
(ii) KM 1/0 - 2/0: The width of existing road is less than 3.75 meters. There are EB lamp posts and telephone posts and these hindrances have to be cleared and then only, widening work can be taken up at this stretch of road. The provision for B.T. is to Page No.36/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) be given for the existing stretch of the road.
(iii) KM 3/0 - 4/0: The width of the existing road is less than 3.75 meters. On both sides of the road, there are agricultural lands. There are EB lamp posts and telephone posts and these hindrances have to be cleared. Then only, widening work can be taken up. In the existing surface of the stretch, no B.T. surface is available. Provision for B.T. is to be given.
(iv) KM - 4/0 - 5/0 : The width of the existing road is less than 3.75 meters. Land acquisition is involved in this stretch. There are built-up area. Agricultural lands and a tank fund on the right side of the road obstructing the widening on both sides of the road. These hindrances have to be cleared. Similarly, there are EB lamp posts and telephone posts and the same have to be shifted at the earliest. Provision for B.T. is to be given on the existing surface of this stretch of the road. The agricultural land is 1.50m depth of the existing surface of the road. This 1.50m depth has to be filled with earth and to bring to the level and to made good the road. This provision has to be given.
(v) K.M.7/0 - 8/0: There are EB lamp posts and telephone posts in this stretch also. These are obstructing the execution/widening of the road. These hindrances have to be cleared and made free for execution.
(vi) KM.8/0 - 9/0: There are EB lamp posts and telephone posts in this stretch also. These are obstructing the execution/widening of the road. These hindrances have to be cleared and made free for execution.
(vii) KM 9/0 - 10/0 : The existing surface of the road is only of WBM surface and Page No.37/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) no B.T. surface is available. Provision for BT has to be given and there is one tank bund and other side agricultural lands. Hence, after acquisition of lands only, widening work can be taken up. There are E.B. lamp posts and telephone posts exists at the site.
57. Apart from the above, 24 culverts have to be constructed as per agreement. Out of 24 culverts, 3 culverts work are over and there is no space to form the diversion road for remaining 21 culverts to be taken up and the plaintiff states that necessary land acquisition may be done and entrusted to the plaintiff at the earliest.
58. That apart, to construct drain in the stretch between 1/0 - 1/350, 4/0 - 4/090, 6/0 - 7/100, 8/2 - 8/450 and 8/8 - 9/0 of this road, the built up area has to be evicted/vacated/acquired and a clear site may be handed over to the plaintiff, at the earliest.
59. The above hurdles, hindrances and measurements taken over by the plaintiff and pointed out by the plaintiff, had been handed over to the Assistant Divisional Engineer (H) concerned and on all the above issues, plaintiff seek early compliance and orders.
60. At last, the plaintiff seek to execute and complete the entire work, within the time frame of contract and prays that the above said provisions may be given sooner, i.e. bituminous item DBM and SDBC over the existing surface of the road to merge with the widening area.
61. Due to delay in handing over free site for execution, the plaintiff suffered idleness of his machineries at site during the second mile stone period, third mile stone Page No.38/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) period and fourth mile stone period. A statement showing the period of idleness of the machineries and its idle charges have been worked out and submitted to the second defendant by the plaintiff by letter dated 04.06.2012. The total expenditure incurred by the plaintiff is Rs.33,48,574/-, which is to be compensated by the defendants to the plaintiff, since the entire delay in handing over the free site for execution, which is solely attributable by the defendants. Hence, for these reasons, the plaintiff prays to receive an amount of Rs.33,48,754/- under the head 'idle machineries' from the defendants.
62. It is the averment of the plaintiff in the plaint that he has to carry out the following two bituminous items of work as per the approved job mix formula:
(i) Providing and laying dense bituminous macadam (DBM) to a thickness of 50mm using 60/70 grade bitumen, which shall consist of construction in a single course of 50 to 100 mm thick base/binder course, confirming to the specification on a previously prepared base (using CMP, paver and power roller) MORT & H.No.111, 112, 501, 507 and 900 (S.L.No.7 in the schedule "A" of agreement.
(ii) Providing and laying 25 mm thick compacted semi dense bituminous concrete (SDBC) using 60/70 grade bitumen, which shall consist of construction in a single course binder/wearing course on a previously prepared bituminous base on a previously prepared bituminous base to the requirements of the specification (using CMP, Paver and Power Roller) MORT & H Nos.111, 112, 501, 507 and 900 (S.L.No.8 in the Schedule "A" of agreement).
63. In the above context, the grievance of the plaintiff is that he has to carry out the above two items as per the MORT & H Clauses stipulated against the above Page No.39/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Schedule items 7 and 8 of agreement. The above two items of work are to be carried out as per the job mix formula required by the MORT & H Clause and as approved by the Director, Highways Research Station, Chennai. Further, the job mix as required by the Director, Highways Research Station (HRS) is detailed in the column below:
Sl. Item Percentage of Bitumen Percentage of
No. of content required (Job Bitumen content as
work mix) as per MORT & H per approved Job
CL. 507 Mix formula by Excess Bitumen
Director HRS content utilised as per
Memo Job Mix
No.Bitumen/Design/
1168/2009, dated
18.02.2009
1 DBM 4.5% 4.6% 0.16%
2 SDBC 5.0% 5.15% 0.15%
Thus, the plaintiff had executed the above two bituminous items of work utilising higher percentage of bitumen as per the approved job-mix formula.
64. Further, Clauses 507.9 and 508.9 of the MORT & H reads as under:
Clause 507.9: Rate: The contract unit rate for dense graded bituminous macadam shall be payment in full for carrying out the all required operations as specified and shall include but not necessarily limited to all components listed in Clause 501.8.8.2 (i) to (xi). The rate shall include the provision of bitumen at 4.25 percent by weight of the total mixture. The variance in actual percentage of bitumen used will be assessed and the payment adjusted, up or down accordingly.
Clause 508.9: Rate: The contract unit rate shall be all as specified in Clause 507.0 except that the rate shall include the provision of bitumen at 4.75 percent, by weight of total mixture. The variance in actual percentage of bitumen used will be Page No.40/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) assessed and the payment adjusted up or down accordingly. The plaintiff had utilised the excess percentage of bitumen in the above two items of work more than that of the required percentage of job-mix, i.e.
(i) for DBM = 0.16%
(ii) for SDBC = 0.15% excess quantity, for which, a statement showing the excess quantity of bitumen utilised in the work as per the job mix formula and the excess expenditure incurred by the plaintiff had been worked out annexed along with the plaintiff's claim letter submitted on 04.06.2012 for redressal to the second defendant with a copy to the first defendant. As per the above statement, the plaintiff had incurred an extra expenditure of Rs.18,55,531/- to complete the above two items of work. Hence, according to the plaintiff, he is entitled to receive an amount of Rs.18,55,531/- from the defendants.
65. The second defendant had mistakenly calculated the price variation on the negative side and recovered an amount of Rs.28 lakhs in the 5th and Part bill. Similarly recovered an amount of Rs.5.80 lakhs in the 6th and part bill. Total recovery made Rs.28 lakhs + 5.80 lakhs = Rs.33.80 lakhs as on 07.05.2010 which is against the terms and conditions of contract and also against G.O.Ms.No.60, Public Works (G2) Department, dated 14.03.2008 and G.O.Ms.No.101, Public Works (G2) Department, dated 10.06.2009 and the clarification issued by the Chief Engineer (Buildings) Public Works Department, by a letter No.HDO (A) 2933/2011, dated 11.01.2011. But the second defendant, during the 13th and final bill time, he has calculated the price variation from the beginning and assessed only an amount of Rs.17,97,241/- comes on Page No.41/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) negative side as per his own method of calculation and paid a sum of Rs.15,82,759/- duly deducting the sum of Rs.17,97,241/- from the amount of Rs.33.80 lakhs on 29.03.2012. This action of the second defendant proves that he has unnecessarily retained/recovered an amount of Rs.33.80 lakhs with effect from 07.05.2010 till 29.03.2012. Therefore, the plaintiff is entitled to receive interest at the rate of 18% per annum from 07.05.2010 to 29.03.2012 for an amount of Rs.33.80 lakhs, which works out to:
D M Y 29 03 2012 07 05 2010
---------------
22 10 1
---------------
691 days (365 + 304 + 22 = 691) 33980000 x (18/100) x (691/365) = Rs.11,51,792.87, i.e. Rs.11,51,793/-.
Thus, the plaintiff is entitled to receive an amount of Rs.11,51,793/- as interest for Rs.33.90 lakhs from the defendants.
66. Due to delay in acquisition of required lands for construction of culverts and drain and due to delay in shifting of BSNL Cable E.B. posts and drinking water pipes, the work could not be completed within the stipulated period of (15 months) contract and after extension of time granted upto 30.12.2011. Admitting these facts, the second defendant has recommended on 19.01.2012 to the first defendant to foreclose the contract when 72.85% of work was completed. Accepting the recommendation of the Page No.42/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) second defendant, the first defendant has ordered to foreclose the contract by a Memo No.1343/2011/JDO, dated 23.01.2012. Thus, the defendants/Department prevented the completion of work as well as profit earnings to the plaintiff due to foreclosure of contract.
67. Normally, the contractor is expected to earn profit by a margin of 10% of the value of contract. It is a trade secret. The value of the left out work due to land acquisition, delay in shifting of electrical posts, BSNL cables, drinking water pipes, etc., is given under:
Sl.No. Heads Amount in Rs.
(i) Value of contract 9,50,12,505/-
(ii) Value of work done 7,08,80,884/-
(iii) Value of work not done due to non-
handing over of free site for execution
and foreclosed the contract (i) -- (ii) 2,41,31,621/-
(iv) Prevention of profit @ 10% on the Rs.2,41,31,621/- x
value of left out work
(10/100)
= Rs.24,13,162.10 i.e.
Rs.24,13,162/-
Thus, the plaintiff is entitled to receive an amount of Rs.24,13,162/- under this head from the defendants.
68. Further, the work had been prolonged at no fault of the plaintiff from the targeted date of completion, i.e. 18.12.2009 to 23.01.2012 being the date of issue of orders to foreclose the contract by the first defendant, i.e. for 2 years one months and 5 days, due to delay in acquiring the required lands for construction of culverts and Page No.43/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) drain, delay in shifting of BSNL Cables, E.B posts and drinking water pipes. Further the details of prolongation are as below:
Sl.No Heads Dates
1 Date of acceptance of agreement 19.09.2008
2 Date of commencement of work 19.09.2009
3 Period of contract fixed for completion 15 months
4 Targeted date of completion 18.12.2009
5 Foreclosure of contract order on 23.01.2012
6 Prolongation of contract period 23.01.2012
18.12.2009 (-)
05.01.0002
i.e. 2 years one
month and 5 days
69. The plaintiff met with loss of profit and over-heads due to un-necessary prolongation of contract ordered by the defendants, and the first defendant has granted extension of time upto 30.12.2011, vide his letter No.1343/2011/S.O.A.P. Road/JDO, dated 08.08.2011 and foreclosed the contract on 23.01.2012, vide Memo No.1343/2011/JDO, dated 23.01.2012 when the contract was not in force. Further, as per the HUDSON's formlua, the loss of profit and over-heads can be arrived at and the same is unilaterally accepted in all Courts in India, including the Apex Court of India. Accordingly, the loss of profit and over-heads had been arrived at as detailed under:
HUDSON's formula:
(Percentage x contract sum x extended period in weeks) / contract period in weeks Percentage - 20% (profit 10%, over-heads 10%) Contract sum = value of work done = Rs.7,08,80,884/- Page No.44/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Extended period in weeks: 2 years 1 month 5 days = 765 days = 109 weeks Contract period = 15 months = 65 weeks The loss of profit and over-heads = (20/100) x 7,08,80,884/- x (109/65) = Rs.2,37,72,358/- Accordingly, the plaintiff is entitled to receive a sum of Rs.2,37,72,358/- under this head from the defendants.
70. The plaintiff had raised the following claims based on the above details and submitted the same to the second defendant, with a copy to the first defendant, by letter dated 04.06.2012 :
Claim 1 : Request payment for the machineries kept idle at site for want of free site for execution of work based on mile stone stipulated: By letter dated 19.01.2009 had been clearly spelt out the impediments, bottlenecks, hurdles and hindrances prevails at the site for the execution of work chainage-wise.
(i) Width of existing road is less than 3.75 m
(ii) Built up area - L.A. pending
(iii) E.B. lamp posts to be shifted
(iv) Telephone posts to be shifted
(v) Agricultural lands and a tank bund on the right side of the Road obstructing the widening on both sides of the road in between Km 4/0 - 5/0.
(vi) Out of 24 numbers of culverts, 3 numbers of culverts completed and there is no space to form the diversion road for construction of remaining 21 Nos. of culverts.
(vii) In the existing carriageway, there is no B.T. surface. The Department had Page No.45/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) not provided any B.T. provision. It has to be provided with B.T. surface, then only widening area can be merged with the existing surface area.
(viii) To construct drain in the stretch between KM 1/0 - 1/350, 4/0 - 4/90, 6/0 -
7/100, 8/2 - 8/450 and 8/8 - 9/0 of the road likes in built-up area. This built-up area has to be evicted/vacated/acquired and to hand over to the plaintiff by the defendants. Because of the above said impediments and hindrances, the plaintiff's machineries were kept idle site for want of free site for execution in the (i) second mile stone period, (ii) Third mile stone period and (iii) fourth mile stone period, during the 1st quarter from 19.09.2008 to 18.12.2008, 2nd quarter from 19.12.2008 to 18.03.2008, 3rd quarter from 19.03.2009 to 18.06.2009 , 4th quarter from 19.06.2009 to 18.09.2009, 5th quarter from 19.09.2009 to 18.12.2009. The abstract for idle charges for machinery are: 1st quarter - Nil; 2nd quarter - Rs.7,53,852.74; 3rd quarter - Rs.1,64,791.49, 4th quarter - Rs.9,32,764.71 and 5th quarter = Rs.14,97,164.94 = Rs.33,48,573.88, i.e. Rs.33,48,574/- incurred as extra expenditure by the plaintiff. A detailed calculation sheet is enclosed as Annexure-I in the plaintiff's letter dated 04.06.2012. Thus, the plaintiff is entitled to receive an amount of Rs.33,48,574/- from the defendants under the head of idle charges for the machineries kept idle at site for want of free site for execution.
Claim 2: Request payment of Rs.18,55,531/- for the excess bitumen utilised in the DBM and SDBC items of work executed as per job mix formula approved by the Director HRS. The plaintiff has carried out the DBM and SDBC items of work as per approved job mix formula by the Director of Highways Research station by a Memo Page No.46/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) No.Bitumen/design/1168/2009, dated 18.02.2009. The binder content of bitumen required as per MORT & H job mix formula and as per approved job mix formula, the binder content of bitumen utilised are shown below:
As stipulated in Percentage of
Sl.No. in the Description of work MORT & H % of binder content of
agreement binder content of bitumen utilised in
bitumen the work as
approved by HRS
7 Providing and laying Dense
Bituminous Macadam to a
thickness of 50mm using 4.5% 4.66%
60/70 grade bitumen which
shall consist of construction
in a single course of 50 to
100mm thick base/binder
course confirming to the
specification on a
previously prepared base
(using CMP, paver and
power roller)
8 Providing and laying 25mm
thick compacting semi
dense bituminous concrete
using 6/70 grade bitumen
which shall consist of 50% 5.15%
construction in a single
course binder/wearing
course on a previously
prepared bituminous base
to the requirements of the
specification (using CMP,
Paver and power roller)
The plaintiff has carried out the above two bituminous items of work duly utilising excess percentage of work, i.e. (i) for DBM 4.66% against 4.5%, excess 0.16%, (ii) for SDBC 5.15% against 5.00%, Excess 0.15%. Further, a statement showing the excess bitumen utilised in the work as per job-mix formula and the extra cost spent is also Page No.47/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) annexed in Annexure-II along with the plaintiff's letter, dated 04.06.2012, which shows that a sum of Rs.18,55,530.95, i.e. Rs.18,55,531/- had been incurred as an extra expenditure by the plaintiff. The relevant clauses of MORT & H is hereby extracted below and to receive the extra expenditure incurred by the plaintiff as per approved job-mix formula: As per Clause 507.09, the contract unit rate for dense grade bituminous macadam shall be payment in full for carrying out the all required operations as specified and shall include, but not necessarily limited to all components listed in Clause 501.8.82 (i) to (xi). The rate shall include the provision of bitumen at 4.25 percent by weight of the total mixture. The variance in actual percentage of bitumen used will be assessed and the payment adjusted, up or down accordingly. Here, the percentage of bitumen content % by mass of total mix square, is taken as minimum 4.5 percent as per Table 500.10, composition of dense graded bituminous macadam pavement layers. Here, the plaintiff had utilised 4.66% of mix, i.e. extra bitumen content used as 0.16%. As per Clause 508.9, relating to Semi dense bituminous concrete, the contract unit rate shall be all as specified in Clause 507.09 except that the rate shall include the provisions of bitumen at 4.75 percent by weight of total mixture. The variance in actual percentage of bitumen used will be assessed and the payment adjusted up or down, accordingly. Here, the percentage of bitumen content % by mass or total mix square, is taken as minimum 5.0 percent as per Table 500.15 composition of semi dense bituminous concrete pavement layers and here, the plaintiff has utilised 5.15% of mix, i.e. extra bitumen content used 0.15%. Based on the Clauses 507.9 and 508.9, of the MORT & H, the plaintiff is entitled to receive an amount Page No.48/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) of Rs.18,55,531/- under this head from the defendants.
Claim No.3:- Request payment of Rs.2,19,33,369/- as price variation as per price variation clause available in the agreement:- The agreement for the subject work contemplates price variation clauses for materials, labour and POL under Clause 16. Clause 16 states that the price adjustment clause will be applicable as per G.O.Ms.No.60, Public Works (G2) Department, dated 14.03.2008. The said G.O., has been subsequently amended by the Government in G.O.Ms.No.101, Public Works (G2) Department, dated 10.06.2009 and the same is deemed to come into effect from 14.03.2008. The amended G.O., i.e. in G.O.Ms.No.101, P.W.D (G2) Department, dated 10.06.2009 and the same is deemed to come into effect from 14.03.2008. The amended G.O.Ms.No.101, P.W.D (G2) Department, dated 10.06.2009 provides Clause (1) Price adjustment, and Clause 2 and these price clauses shall be calculated only on the departmental estimated cost. Clause b(iv) states that, "in respect of bitumen and POL, it may be considered on 'pass through' basis with payment of actual rates/price at the rate charged by Indian Oil Corporation. Based on the above clauses, the plaintiff is entitled to receive the payment of price adjustment. Hence, the plaintiff by letter dated 13.02.2012 has requested the second defendant stating that the plaintiff would like to submit the Divisional Engineer (H), CMDP Division-2, Chennai-15 has already been recovered in the 5th & Part bill and 6th and part bill to a tune of Rs.33,80,000/- under the head price variation as against G.O.Ms.No.40, Public Works (G2) Department, dated 14.03.2008. If so, why the Divisional Engineer (H) CMDP, Dn-2, Chennai-15 has not worked out and paid the price variation since from 1st to 4th and part bill and 7th to till Page No.49/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) the pre-final bill. If the prices are increased kindly make payment of the varied amount and if decreased the prices, recover the amount from the bill paid to me." "The above being the factual position, the plaintiff have worked out the price variation from the 1st and Part bill to final bill as per the said G.O. of price variation as Rs.2,13,06,128/- and the plaintiff entitle to receive the same from the department. The above said price variation has been worked out, based on the reference 2 cited ..." The plaintiff again reminded the second defendant to make payment of price variation to a tune of Rs.2,13,06,128/- by a letter dated 06.03.2012. The plaintiff on the same day, i.e. on 06.03.2012 by another letter written to the 2nd defendant stating that, "Please refer my letter 15th cited (dated 13.02.2012) wherein, the plaintiff had requested the Divisional Engineer (H) CMDP-Division-2, Chennai-15: (i) to make payment of price variation for an amount of Rs.2,13,016,128/- which the plaintiff entitled to receive the same as per G.O.Ms.No.60, Public Works (G2) Department, dated 14.03.2008 and clarification issued by the Chief Engineer (Building) PWD, Chennai-5, vide reference 2nd cited (dated 19.01.2011), to make final bill payment since the completion certificate has been issued by the Superintending Engineer (H) CMDP Circle, Chennai-35, vide reference 14th cited; to refund a sum of Rs.33,80,000/- received under 5th & Part bill and 6th and part bill as price variation against the terms and conditions of contract. But no orders/payment have been made by you yet. Because of the delay in making payment by the Department, the plaintiff unnecessarily paying interest to my financiers and Bankers. These aspects may be pleased to look into it and speed up your action to make payment tome at the earliest. In view of the above, I request that the Divisional Page No.50/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Engineer (H) CMDP-Div.2 may be pleased to make the payment of (i) price variation (ii) final bill payment and (iii) refund of Rs.33.80 lakhs illegal recovery in the name of price variation at the earliest so as to avoid of payment of further interest to my financiers and bankers and thus render justice." In reply to the above, there was no response from the Department side. By a letter dated 09.04.2012, the plaintiff has requested the Secretary to Government, Highways and Minor Ports Department, Chennai-9, to issue orders/guidelines/clarifications to the Highways Department of all wings in Tamil Nadu to adopt the one and the same procedure /method of calculation in respect of price adjustment as that of being followed the procedure in the public works department; to issue orders to the Chief Engineer of Highways Department to arrive at a procedure to calculate the price adjustment with the consultation of the Chief Engineer (Buildings), P.W.D., Chepauk, Chennai-600 005 and to issue orders to consider the plaintiff's calculations of price adjustment worked out based on the clarifications issued by the Chief Engineer (Buildings), PWD, Chepaukm, Chennai-600 006 and make payment. But the plaintiff had not received orders from the Secretary to Government, Highways and Minor Ports Department, Chennai-600 009. The details of amount under this head of price variation to be paid to the plaintiff by the defendants are stated hereunder for easy reference: Price variation for the entire period of contract amounting to Rs.2,13,06,128/-, as per the statement appended here with to the Divisional Engineer (H) CMDP-Dn.2, Chennai-600 015 by letter dated 06.03.2012 and to the Secretary to Government, Highways and Minor Ports, Chennai-600 009, dated 09.04.2012. The second defendant / Divisional Engineer (H) CMDP-Dn.2, Chennai-600 015 has recovered Page No.51/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) a sum of Rs.33.80 lakhs in the 5th and 6th part bills as price adjustment. The second dependant has not worked out and paid the price variation amount to the plaintiff between 7th and part bill to 12th and part bill. In the 13th and final bill, the second defendant has paid a sum of Rs.15,82,759/- as price variation on 29.03.2012 duly adding and adjusting the amount of Rs.33.80 lakhs, i.e. 3380000 - 1797241 = Rs.15,82,759/- The plaintiff has received the said amount under protest. However, the plaintiff has worked out the price variation as per Sl.No.12 of the G.O. and it works out to Rs.20136128/-. The second defendant has recovered a sum of Rs.1797241/- as against the actual escalation in the plus side, and finally, the plaintiff is entitled to receive an amount of Rs.21933369/- as per the terms and conditions of agreement, G.Os., and the clarifications issued by the Chief Engineer (Buildings), Chepauk, Chennai-600 005. The plaintiff is entitled to receive the payment of Rs.2,19,33,369/- as price variation from the defendants.
Claim No.4: Request payment of interest at the rate of 18% per annum for the amount of Rs.28.00 lakhs and Rs.5.80 lakhs illegally recovered as price adjustment from 5th and part bill and 6th and part bill respectively. The second defendant / Divisional Engineer (H) CMDP - Dn.2, Chennai-15 has calculated the price adjustment against the terms and conditions of G.O.Ms.No.60, Public Works (G2) Department, dated 14.08.2008, G.O.Ms.No.101, Public Works (G2) Department, dated 10.06.2009 and the clarifications issued by the Chief Engineer (Buildings) PWD, Chennai-600 005, dated 19.01.2011 and recovered the amount from the plaintiff : Vth and part bill dated 07.05.2010 @ Rs.28 lakhs plus VI and part bill dated 07.05.2010 @ Rs.5.80 lakhs = Page No.52/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Total : Rs.33.80 lakhs. The said amount of Rs.33.80 lakhs had been returned to the plaintiff during 29.03.2012 along with 13th and final bill duly realising the wrong calculations made earlier. Thus, the second defendant has unnecessarily retained the amount of Rs.33.80 lakhs with the Department. At the same time the plaintiff has paid the interest to their Bankers and financiers unnecessarily. The simple interest @ 18% per annum with effect from 07.05.2010 is worked out : Interest for Rs.33.80 lakhs till the date of payment made on 29.03.2012, is calculated to the effect that the interest for 1 year 10 months and 22 days = Rs.33880000 x 18% x 691/365 = (365+304+22) = 691 days .. Rs.33800 x 18 x 1.893 = Rs.11,51,792.87, i.e. Rs.11,51,793/-. In all, the plaintiff is entitled to receive an amount of Rs.11,51,793/- as interest for the amount recovered illegally by the second defendant during V & part bill and VI part bill.
Claim No.5: Request to make payment of Rs.25,000/- recovered as fine at no fault on the plaintiff: The plaintiff has reported the hurdles and hindrance met with during the course of execution of work such as delay in shifting of electrical poles, transformers, telephone posts and cables and delay in acquisition of lands in built-up area and other L.A. involved stretches by letters dated 19.01.2009, 04.04.2009, 22.05.2009, 10.08.2009 and 04.09.2000. Without taking tangible and fruitful action to remove the above said hurdles and hindrances obstructing the execution of work, the second defendant/Divisional Engineer (H) CMDP-Dn.2, Chennai-600 015, without any prior notice, has imposed fine of Rs.25,000/- by a notice No.20/2008/A2, dated 17.02.2011. The action of the second defendant is against the G.O.Ms.No.281, Highways and Minor Ports (HFI) Department, dated 13.09.2010 and hence, it is against Page No.53/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) the principles of natural justice. Further, the plaintiff, by letters dated 28.02.2011, 07.06.2011 and 05.07.2011, had requested to withdraw the impugned order of fine imposed by the second defendant by illegal means. But, no orders have been received by the plaintiff. Therefore, according to the plaintiff, he is entitled to receive the said amount of Rs.25,000/- from the defendants.
Claim No.6: Request to refund an amount of Rs.11,90,127/- levied as liquidated damages against the terms and conditions of contract and recovered by the second defendant/Divisional Engineer (H), CMDP - Dn.2, illegally:
(a) There is no provision to levy liquidated damages in this contract/agreement, but the second defendant/Divisional Engineer (H) CMDP - Dn-2, Chennai-600 015 has levied the liquidated damages and recovered the same in two occasions without any prior notice: LS IX & Part bill = (1,97,106) + LS X & Part bill = (9,93,021) = Rs.11,90,127). This recovery in the name of liquidated damages made by the second defendant is against the terms and conditions of contract and hence, it is against the principles of natural justice and contrary to G.O.(Ms).No.281, Highways and Minor Port (HF1) Department, dated 13.09.201. The Department alone is held responsible for the delay in execution of work, i.e. due to delay in shifting of electrical poles/posts, transformers, telephone posts and cables and delay in acquisition of required lands and buildings which are in built-up area. Even after a lapse of two years after 15 months contract period is over, the Department was not in a position to handover free site for construction of four culverts and for construction of drain. Admitting the facts, the work has been foreclosed by the first defendant/Superintending Engineer (H) CMDP Circle, Page No.54/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Chennai-600 035, by a memo No.1343/2011/JDO, dated 23.01.2012, based on the recommendation of the second defendant/Divisional Engineer (H) CMDP - Dn.2, Chennai-600 015, Letter No.1631/2011/A1, dated 19.02.2012. Such being facts, the liquidated damages imposed and recovered an amount of Rs.11,90,127/- by the second defendant amounts to breach of contract. Hence, the plaintiff by letters dated 07.06.2011 and 05.07.2011 has requested refund of the said amount of Rs.11,90,127/-.
Admitting and considering the genuine request of the plaintiff, the second defendant/Divisional Engineer (H), CMDP, Dn.2 by the letter No.1631/2011/A1, dated 24.01.2012 has recommended to the first defendant/Superintending Engineer (H), CMDP Circle, Chennai-600 035, to revoke the liquidated damages levied to an amount of Rs.11,90,127/- and sought for orders to refund the same to the plaintiff. Accepting the recommendation of the second defendant, the first defendant, who is empowered to revoke the liquidated damages, by Memo No.1343/2011/SOAPM Road 0/0 - 10/0 JDO, dated 25.01.2012 has ordered to refund 75% of liquidated damages levied to the plaintiff. But no refund had been made to the plaintiff by the second defendant till this date. Repeatedly, by letters, dated 06.03.2012, 04.06.2012, 11.08.2012 and 18.02.2013 (legal notice) requested for refund. But no refund has been received by the plaintiff. Hence, according to the plaintiff, he is entitled to get refund of entire L.D. amount of Rs.11,90,127/0 from the defendants.
Claim No.7: Request payment for the loss suffered by way of prevention of profit earnings due to foreclosure of contract:
The work has been awarded to him for a contract value of Rs.9,50,12,505/- and Page No.55/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) allowed to execute to a value of Rs.7,08,80,884/-. Due to delay in acquisition of required lands in the built-up area, delay in shifting of electrical poles, transformers, telephone posts and cables, the work had been foreclosed by the first defendant by a Memo No.1343/2011/JDO, dated 23.01.2012. Thus, the plaintiff had been prevented to carry out the work to a value of by the defendants. Accordingly, the plaintiff has received the final bill under protest and the Department has prevented the profit earnings by the plaintiff. Normally, the contractor is expected to earn profit by a margin of 10% of the value of contract. A sum of Rs.2,41,31,621/- has been prevented to do work. Thus, the profit margin of 10% value of left out work, works out to:
= 24131621 x 10% = Rs.24,13,162/-.
Hence, the plaintiff is entitled to receive an amount of Rs.24,13,162/- from the defendants.
Claim No.8: Request payment for the loss of profit and over-head met with by the plaintiff due to prolongation of contract at no fault on the plaintiff:
The work had been prolonged at no fault of the plaintiff from the targeted date of completion 18.12.2009 to 23.01.2012 the date of issue of orders to foreclose the contract by the first defendant, i.e. for two years one month and 5 days due to delay in acquiring required lands for construction of culverts and drain, delay in shifting of BSNL cables, E.B. posts and drinking water pipes. The details of prolongation are furnished below:
(i) Date of acceptance of agreement : 19.09.2008
(ii) Date of commencement of work : 19.09.2008 Page No.56/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
(iii) Period of contract fixed for completion : 15 months
(iv) Targeted date of completion : 18.12.2009
(v) Foreclosure of contract order on : 23.01.2012
(vi) Prolongation of contract period : 23.01.2012 - 18.12.2009 = 05.01.0002 i.e. 2 years one month and five days.
71. Further, the plaintiff met with loss of profit and over-heads due to unnecessary prolongation of contract ordered by the defendants, the first defendant has granted extension of time upto 30.12.2011, vide his letter No.1343/2011/S.O.A.P. Road/ JDO, dated 08.08.2011 and foreclosed the contract on 23.01.2012, vide Memo No.1343/2011/JDO, dated 23.01.2012, when the contract was not in force.
72. As per HUDSON's formula, the loss of profit and over-heads can be arrived and the same is unilaterally accepted in all Courts in India, including the Apex Court of India. Accordingly, the loss of profit and over-heads had been arrived at as under:
Hudson's formula:
(percentage x contract sum x extended period in weeks)/contract period in weeks Percentage - 20% (profit 10%, overheads 10%) Extended period in weeks: 2 years 1 month 5 days = 765 days = 109 weeks Contract period - 15 months = 65 weeks Therefore, the loss of profit overheads = 20% x 7,08,80,884 x (109/65) = Rs.2,37,72,358/-. In fine, the plaintiff is entitled to receive a sum of Rs.2,37,72,358/- under this head from the defendants.
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73. THE OVER-ALL TOTAL VALUE OF EIGHT CLAIMS WORKS OUT TO:
Claim No.1 33,48,574
Claim No.2 18,55,531.00
Claim No.3 2,19,33,369.00
Claim No.4 11,51,793.00
Claim No.5 25,000.00
Claim No.6 11,90,127.00
Claim No.7 24,13,162.00
Claim No.8 2,37,72,358.00
Total claim 5,56,89,914.00
74. On 04.06.2012, the plaintiff wrote to the defendants, but there was no response from the defendants. Hence, the plaintiff once again reminded the second defendant with a copy of the first defendant on 11.08.2012, for which also, there was no response from the defendants. Further, there was no response from both the defendants till 17.02.2013. Therefore, the plaintiff caused a notice dated 18.02.2013 under Section 80 of the Code of Civil Procedure, to the defendants calling upon them to pay the plaintiff the above amount with interest, but there was no reply from both the defendants. Hence, as per Clause 11 of Schedule - D of the agreement, dated 19.09.2008, in case of any dispute or difference between the parties to contract either during the progress or after completion of the work or after determination / abandonment of the contract or any matter arising thereunder and if the claims value exceeds Rs.2 lakhs, the same shall be settled by filing a Civil Suit before a Civil Court having jurisdiction for decision. Hence, the plaintiff has filed the present suit before this Page No.58/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Court as mandated by Clauses of the agreement between the parties, after giving notice, dated 18.02.2013 under Section 80 of the CPC to the defendants with further reminder on 19.05.2014 within the period of limitation. For all the reasons stated above, the plaintiff filed C.S.No.576 of 2014, praying for direction to the defendants to pay the plaintiff Rs.8,03,24,691/- together with interest at 18% per annum on the principal sum of Rs.5,56,89,914/- from the date of suit till the date of realisation and the plaintiff prayed for a direction to pay the costs of the suit.
Written statement in C.S.No.576 of 2014
75. The written statement filed by the first defendant, adopted by the second defendant, states as follows:
(a) While denying the averments of the plaintiff in the plaint, the defendants state that the same are devoid of merits and against evidence. The suit is not maintainable in law or on facts.
(b) The work of widening from single lane to two lane and strengthening of Sholavaram--Orakkadu--Arumandhai-Perumullaivoyal Road KM-0/0 - 10/0, is one of the works taken up under the Chennai Metropolitan Development Authority (CMDA) and infrastructure investment plan, 2005-06 and administratively sanctioned for Rs.700 lakhs in G.O.Ms.No.229/HW1/dated 14.11.2005. After detailed investigation, the estimate for the work was prepared and technically sanctioned for Rs.582 lakhs. This work was entrusted to the plaintiff in tender at 85% above estimate rate for 2005-2006, vide CR Agt.No.20/2008-09/dated 19.09.2008 for Rs.950.13 lakhs. The period fixed for Page No.59/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) completion of the work is 15 months. Accordingly, the work might have been completed by 18.12.2009. As per the articles of the agreement entered, the preliminary specification to standard specifications to Roads and Bridges Volume-I, Part-I, forms part of the agreement and the contract is covered by the said conditions. Clause 103.03 of the said specifications, the bidder is required to examine carefully the site of the work, source of materials of the proposals, plans, specifications, special provision and contract forms for the work contemplated. It will be construed that the bidder has investigated and is satisfied as to the conditions to be encountered for performing the work as scheduled or as any times altered in conformity with PS 105-05 and as to the character, quality and quantities of work to be performed and materials to be furnished including increase and decrease and as to the requirements of contract. It is mutually agreed that submission of tender shall be considered conclusive evidence that the bidder has made such examination and is satisfied as to all the conditions and contingencies.
(c) As per Clause 107.08 of the said specification, the contractor shall co-operate with the authorities responsible for water mains, gas mains, sewers, electric lines and cables, telegraph and telephone lines, service connection and all other utility appurtenances which are to be relocated or moved in accordance with the special provisions. The contract shall have considered in his bid all the permanent and temporary utilities in their present or re-located positions and no additional compensation will be allowed for any delays, inconvenience or damaged sustained by him due to any interference from the said utility appurtenances or the operation of Page No.60/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) moving them.
(d) As per Clause 105.05, the right is reserved at any time during which the contract is in force to make any alterations in the work, that may in the opinion of the Engineer be necessary and for that purpose, he shall have power to order that contractor to do and the contractor shall do any of the following:
(i) increase or decrease in quantities of any item of work included in the contract;
(ii) to omit any portions of work;
(iii) change the specifications for any item of work;
(iv) change the lines, levels, positions and dimensions of any part of the work;
(v) execute additional work necessary for the completion of the work and
(vi) alterations in the plants.
76. The quantities furnished in Schedule-A of the agreement is the tentative quantities prepared based on the estimate and proposal of the Department. The final payment will be made as per the actual quantities executed by the contractor.
77. The plaintiff has completed the work to a value of Rs.692.92 lakhs (72.85%) up to 13.10.2011 and requested the respondents to foreclose the contract, vide letter dated 18.01.2012. Accordingly, the contract was foreclosed on 23.01.2012 by the respondents. The completion certificate was issued on 30.01.2012.
78. The scope of the work as per the contract involves widening and strengthening of road for a length of 10 Kms (KM-0/0 - 10/0), construction of side drain Page No.61/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) for a length of 3150 m on both sides and construction of 24 cross drainage works. Out of the agreement value of Rs.950.13 lakhs, the value of road work is Rs.587.18 lakhs, the value of drain is Rs.273.83 lakhs and the value of cross drainage works Rs.89.12 lakhs.
79. The issues raised by the plaintiff are only in small stretches in the road work. Out of 24 cross drainage works, 20 cross drainage works were free of any encumbrance. Hence, right from the commencement of the work, there was always sufficient work space available for the plaintiff to perform his work. Out of Rs.951/- lakhs contract value, the plaintiff has completed the work to a value of Rs.692.92 lakhs. This scope of site were available right from the commencement of the work, whereas, the plaintiff has completed only Rs.212.06 lakhs works up to 9 months and were doing the balance work till the foreclosure of the contract. Hence, the statements made by the plaintiff in his letters cited, are against the facts, and merely an after-thought built up correspondences to cover up his lapses and to evade from penal action. The defendants have also informed the plaintiff to complete the work within the available right of way. These facts were informed to the plaintiff by the defendants, vide the second defendant's letters dated 26.10.2009, 09.12.2009, 03.06.2010, 16.11.2010 and 10.06.2011. Necessary penal action were also taken against the plaintiff under the terms of contract then and there, vide the defendant's letter dated 01.10.2010 and therefore, the statement of the plaintiff in his said letters, are after-thought, built up correspondence only and are not maintainable either, and the facts of the case or under the terms of the contract. Without prejudice to the above, it is stated that the Page No.62/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) foreclosure option exercised by the plaintiff might have been exercised earlier, if the plaintiff had actually suffered anything due to non-availability of site and relieved himself. The recovery of fine imposed at Rs.25,000/- had not been recovered from the plaintiff, even though it has been imposed for slow progress. As far as imposing of liquidated damages, is concerned, out of the contract value of Rs.9,50,12,505/-, the road work is Rs.5,87,17,779/-, value of drainage work is Rs.2,73,83,215/- and the value of cross drainage work is Rs.89,11,511/-. The plaintiff reported patches and pot holes only in the centre portion at KM 0/0 - 3/0, KM 4/2 - 4/6, KM 6/8 - 7/0 and KM 9/0
-10/0. Hence, exempting the above stretches, value of road work that could be executed at the inception itself was Rs.4,43,92,409/-. The balance road work value of Rs.1,43,25,370/- alone could not be executed due to non-provision of item to close the patches and pot-holes. Similarly, out of 24 cross drainage works, is concerned, 20 could be executed to the value of Rs.70,57,916/- and similarly, out of 6300m of total length of drain 854m, could be executed for the value of Rs.36,96,734/-
80. Totalling all the above works, the road work drainage work and cross drainage work to a value of Rs.5,51,47,059/- could have been executed in the free encumbrance site at the time of handing over of work site (i.e) inception time itself, on 19.09.2008. The contract value of Rs.9,50,12,505/- has to complete in all aspects for the contract period of 15 months at the rate as per the mile-stone given in the agreement. The corresponding period for the value of work Rs.5,51,47,059/- is nine months, i.e. as per the mile stone, the contractor should have completed Rs.5,51,47,059/- in nine months. But in nine months, the plaintiff had completed to Page No.63/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) value of work for Rs.2,12,06,334/- only, i.e. upto 24.06.2009 and completed the balance value of work for Rs.5,51,47,059/- in 21 months, i.e. upto 16.06.2010. As per Clause 13 under price variation, if the contractor fails to maintain the rate of progress in accordance with the time fixed, he has to pay a liquidated damage at 1/2% of the contract sum for every month of delay till its completion. The liquidated damages to be imposed for this delay, i.e. 12 months (which is more than 10 months and 1/2% for every month and 5% for 10 months) is Rs.27,57,350/-, however, the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II had imposed the liquidated damages only for Rs.1,97,106/- as on 24.09.2010.
81. A revised estimate was prepared for improving the damaged stretches, i.e. KM 0/0 - 3/0, KM 4/2 - 4/6, KM 6/8 - 7/0 and KM 9/0 - 10/0, which was not done during the contract period for want of revised administrative sanction (i.e) for value of work Rs.1,43,25,370/- and approval obtained from the Government on 20.09.2010 for revised administrative sanction of Rs.1064.20 lakhs. As per the revised mile stone, this balance works for the value of Rs.1,43,25,370/- should be completed in three months, i.e. on or before 19.12.2010. However, the contractor has not completed the value of work for Rs.43,80,131/- till 19.12.2010. He has taken 10 months to complete this work, i.e. upto 19.07.2011, i.e. after a delay of 7 months. The liquidated damages had to be imposed for this delay of 7 months to complete the work is Rs.5,36,382/-. The total liquidates damages had to be imposed to contractor is Rs.32,93,732/-. However, the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II viewed the situations and weighted the same and considering the slow progress of work by the Page No.64/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) contractor, the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II has imposed Rs.11,90,127/- totally as liquidated damages. Therefore, from the above grounds of the facts, the liquidated damages have been imposed only for the available work front from the beginning of the contract period is justified and have been done properly as per agreement condition. Further, the statement of the plaintiff regarding imposing up liquidated damages and revoking of the liquidated damages is not true and misleading. Before imposing liquidated damages, several slow progress notices have been issued to the plaintiff as per Clause 109-05 of PS to SSRB by the defendants on 15.09.2009, 26.10.2009, 09.12.2009, 04.05.2010, 07.06.2010, 16.11.2010, 10.06.2011 etc.
82. The letters of the defendants cited by the plaintiff, are merely an inter- departmental correspondences and no orders have been issued by the respondents, as alleged by the plaintiff. In the second dependent letter, dated 24.07.2012 cited, it has not been recommended for revoking of liquidated damages as alleged by the plaintiff. Only the request of the plaintiff has been submitted to the first defendant. Similarly, the first defendant has also not ordered refunded of liquidated damages as alleged and only it has been recommended to the second defendant to refund 75% fine recovered. The first defendant alone is empowered to order refund as per Clause 109.05, but he has not issued any such order. For this letter of the first defendant, the second defendant had also submitted a detailed reply to vindicate his standard. Hence, the liquidated damages cannot be recovered under the circumstances explained above.
83. The plaintiff is totally misunderstood and misleading the provisions of the Page No.65/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) price variation clause in the Government Orders and the provisions made in the agreement. He has not even understood the concept of price variation clause. The relevant provisions of the price variation clause, as provided in the Government Orders and in the agreement relevant to the issue, is reiterated as below:
(i) Full price adjustment on all the components including cement, steel, bitumen and petrol, oil and lubricants shall be applicable to the works with contract period more than 12 months.
(ii) The price adjustment shall be calculated only on the departmental estimated cost of the work.
(iii) In respect of bitumen and POL, it may be considered on "pass through"
basis with payment of actual rates/price at the rates charged by Indian Oil Corporation.
(iv) All works for which price variation is contemplated must have mile-stones fixed in physical terms and have a prefixed time-line for use of inputs-clearly indicating the nature and quantum of eligible inputs to be used for the work for the relevant period between two mile-stones. Price variation will be applicable for those quantities "actually" used by the contractor including additional quantities, if any, used or achieved ahead of the time-line. However, if the contractor does a certain quantity at the work in the third quarter which ought to have been done in earlier quarter, price variation/escalation will still be applicable on that quantity at the rates applicable in the relevant quarter as per time-line or period of actual use whichever is less.
(v) Liquidated damages will be imposed on the contractor for the lapses/shortfall in achieving the rate of progress as per existing schedule. Page No.66/170
https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
(vi) The price adjustment mechanism will cease to operate for value of work executed beyond the agreement period. But agreement period shall include the "actual work" for which the work was "suspended officially" and extension of time permitted for any valid reasons such as, war, natural calamities, like flood, earth-quake and other risks arising out of Acts of Gods during the agreement period; work delayed due to the land acquisition process; change in design, change in scope of work, etc., which is given in writing by the Tender Calling Officer of the respective work.
(vii) Price variation will be calculated once in a quarter in respect of all components except bitumen and petroleum, oil and lubricants (POL) for the works with contract period of more than 12 months, as per the specified formula from the last date of submission of bid upto the end of agreement period provided, if the agreement is signed within the minimum specified time, failing which, the price variation will be applicable from the date of agreement only, based on the wholesale price indexes of RBI. The quarter would be reckoned with reference to the quarter of the calendar year in which the last date on bid submission is fixed. In case of delayed agreement, the quarter in which the agreement is signed, will be reckoned for the purpose of calculation of price adjustments.
84. As per the provisions of the Government Orders cited, suitable price variation clause have been incorporated with suitable formula's for implementations of the orders. This classes are final and binding both the parties as per the provisions of the agreement. As per the above provisions and the principal of price variation and also based on the principles of natural justice also, the provision of price variation clause is Page No.67/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) only to cover the increase or decrease in the prince from the date of agreement upto the end of agreement period. Further, as per the provisions of the agreement, the above variation will be applied only on estimated cost of work as per department rates. The increase in the price between the rates at the time of estimate and at the time of tender proposal by the contractor, are included in the tender proposals and the contractors are quoting their rates accordingly. The contractor had quoted 85% above the estimate of the department to over the increase between estimate and tender. This has also been clearly mentioned in the tender approval proceedings. Hence, claiming variation again from the date of preparation of estimate is absolutely against the principles of escalation, orders of the Government and the provisions of the agreement. It actually leads to double payment. The plaintiff actually is misinterpreting the estimated cost of work and the base price. The rates of materials incorporated in the work has actually come down during the operative period as follows:
The rate of bitumen in the agreement quarter is Rs.39,100/- and come down to Rs.29,518/- during actual execution similarly the cost of steel come down from Rs.45,989/- to Rs.37,605/-. Hence, the value of price variation has worked out to minus Rs.28 lakhs upto Vth and part bill and the same was adjusted in that bill. Similarly, the total price variation has been worked out as minus Rs.33.80 lakhs upto 6th and part bill and the balance of Rs.5.80 lakhs was adjusted in the 6th part bill. After completion of the work, the total escalation increase as per the provisions cited supra, was Rs.17,90,786.50 and the same was duly adjusted in the final bill. The escalation amount arrived at by the contractor as Rs.2,01,36,128/- is totally incorrect and are against the Page No.68/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) provisions and based on wrong concept. The same was corrected as Rs.15,88,759/- by the respondents and was paid along with final bill as per the provisions of the agreement.
85. The plaintiff is confusing with the estimated cost of work and the base line index to be adopted for arriving the price variation. The estimated cost of work is for arriving at the variable 'Po' in the formulas and the variation in the price are to be operated from the operative date which is the date of commencement of work as per the provision of Price Variation Clause.
86. The further averment of the defendants in C.S.No.576 of 2014 in the written statement is that the plaintiff has not even submitted a single piece of evidence for the same such as log sheets of vehicles, vehicle legger etc., except the mere built up correspondences. These machineries have not been bought only for the site and these can be easily moved from one site to another site of work. Always he has the option of demolishing and remobiling as per requirement and optimised the utilisation. The plaintiff is a Class I register contractor in this department and executing various works with the Department. Hence, the allegation regarding the idleness of machinery are not true. The plaintiff in the same period has executed the work of Sadras-Chengalpattu- Kanchipuram-Arakkonam-Thiruvallur Road KM 24/4 - 27/0, 29/8 - 32/6 and 33/6 - 36/0 to an estimate value of Rs.200 lakhs with the Divisional Engineer (H), C & M, Chengalpattu Division and for Rs.275 lakhs with the Divisional Engineer (H), CMDP Division-I in the work of widening from two lane to four lane of Mount-Madipakkam Road KM 0/0 -2/0 and hence, the statement of the plaintiff regarding the idle machinery Page No.69/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) are not true and not maintainable either on facts or in the terms of agreement or under law.
87. The defendants further stated in the written statement that the claim of the plaintiff regarding the alleged use of excess bitumen is against the facts and the same is not maintainable under the terms of the contract. The plaintiff raised the claims on the basis of the M.O.R.T.H. specifications. As per the special conditions of the contract in the agreement, the M.O.R.T.H specifications have been issued in Part-II of the special conditions of the contract. As per the agreement insofar as any substitute, modified and additional clause, may conflict or be inconsistent with any of the provisions of Part-I, General Specifications under reference, the substitute, modified and additional clause shall always prevail. As per Clause 13 of Part-II, all the items contemplated in the tender are for the work to be carried out as per MOST (IV Revision) specifications only, for semi-dense bituminous concrete/bituminous concrete, the work has to be done as per MOST specification and the said application required necessary mix design based on the quality materials proposed by the contractor to be used for the work. Therefore, necessary job mix formula is to be obtained by the contractor from the competent authority of Highways Research Station/Indian Institute of Technology, Chennai. Further, the contractor is bound to get the job mix formula and to do the work based on the test results as given by the Highways Research Station/Indian Institute of Technology, Chennai, including expenses towards the above said job mix formula and no extra rate of claim will be considered for doing the items of work as per job mix formula. The percentage of bitumen content required as per MORTH specifications, Page No.70/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) which is only the minimum specified. The actual requirement of bitumen will depend on the quality of materials produced by the contract. The binder contact of 4.6% and 5.15% is the requirement as per job mix formula. However, the same may go up to 0.3% on both ways. That is, the contract may use the mix with a binder content of 4.3 to 4.9 for the designed binder content of 4.6. Similarly 4.85 to 5.45 for the binder content of 5.15%. Hence, it is pertinent to note that the contractor's claim are based on the job mix formula not based on the actual use of the bitumen and hence, the same is not maintainable under the term of the contract and as per the special conditions of the contract, based on facts.
88. The allegations of the plaintiff are totally wrong and misleading. As per the provisions of the contract agreement on price variation clause, the contract price shall be adjusted for increase or decrease in rates and shall be paid accordingly. Hence, the price variation up to Vth and Part bill was arrived as (-) Rs.28,15,385/- and hence, adjusted in the Vth and Part Bill. Similarly, the price variation up to VIth and Part bill, was arrived as totally (-) Rs.33,79,545/- and the balance Rs.5,64,160/- was adjusted as per the provisions of the agreement based on the indices prevailing on the date. On completion of the work, the over-all final variation in prices was arrived as (-) Rs.17,90,787/- and after adjusting the previous recoveries of Rs.33,79,545/-, the balance amount of Rs.15,88,759/- was refunded to the plaintiff in the final bill. Hence,the payment were made fully as per the provisions of the agreement and any allegation in this regard is not true and not maintainable under the terms of the contract. Moreover, as per the clause 110-02(a) of PS to SSRB, all interim payments Page No.71/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) made to the contract, shall be treated as advances in respect of LS contract and hence, on payment of final bill only, the amount shall be deemed to be due to the contractor. Hence, the claim of interest made on this head is not maintainable and no amount is due to the contractor.
89. The quantities furnished in Schedule-A of the agreement is only tentative quantities furnished in the Schedule-A of the agreement, is only tentative quantities and the final payment will be made only as per the actual quantities executed by the contractor. Further, the right is reserved at any time during which the contract is in force to make any alteration in the work be increase or decrease the quantities that may be in the opinion on the Engineer be necessary. Further, the contractor has completed 72.85% of the work and the balance was foreclosed only based on the request of the contractor. Hence, the allegation of the contractor in this regard is no maintainable under the terms of the contract and the claim of loss of profit on the alleged balance of the work is not admissible.
90. It is further stated in the written statement of the defendants in C.S.No.576 of 2014 that the delay in completion/prolongation of the contract is not attributable to the Department and the plaintiff alone is responsible for the prolongation of the contract period. The claim of the plaintiff towards loss of profit and over-head is not correct and the same is without any single piece of evidence other than the built-up correspondences. The plaintiff has calculated the loss of over-heads and profit, based on the HUDSON's formula, but as per this formula, a claimant must prove a necessity to maintain the resources on the project and an inability to re-allocate them to more Page No.72/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) profitable and must given evidence of the process within head office to enable assessment of the portion of over-heads, if any, that are attributable to the delay caused by the breach. Further, the claimant himself has executed various works in the Department during the same period. Hence, the claim of the plaintiff regarding loss of profit and over-heads, are not true and the same are not maintainable either under the terms of the contract or under law. The plaintiff has claimed an amount of Rs.5,56,89,914/- under 88 heads, along with interest at the rate of 18% per annum, totally Rs.8,03,24,691/- along with further interest from the date of suit.
91. Clause No.(1): Ideal machinery charges:
The allegations of the plaintiff regarding the availability of site is not true. The plaintiff has not even submitted a single piece of evidence regarding log sheets of vehicles, vehicle ledger etc., except the mere built up correspondences. These machineries have not been brought only for the site and these can be easily moved from one site to another site for work. Always, he has the option of demolishing and re- mobilising as per the requirement and optimised the utilisation. The plaintiff is a Class-I registered contractor in the defendants-Department and executing / executed various works with the defendants/Department and hence, the allegation regarding the idleness of machinery are not true. Hence, the statement of the plaintiff regarding the idle machinery, is not true and not maintainable either on the facts of the case and the terms of the agreement or under law.
Clause No.2: Excess use of bitumen:
The claim of the plaintiff regarding the alleged use of excess bitumen is against Page No.73/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) the facts and the same is not maintainable under the terms of the contract. The plaintiff raised this claim on the basis of the terms of the MORTH specifications. MORTH specifications are general specifications in Part-I, for which, supplemental specifications are general specifications have been issued in Part-II of the special conditions of the contract. As per the agreement insofar as any substitute, modified and additional clause may conflict or be in consistent with any of the provisions of Part-I. General specifications under reference, the substitute modified and additional clause shall always prevail. The contractor is bound to get the job mix formula and to do the work based on the test results, as given by the Highways Research Station/Indian Institute of Technology, Chennai, including expenses towards the above said job mix formula and no extra rate of claim will be considered for doing the items of work as per job mix formula. Hence, the contractor is claiming based on the job mix formula and not based on the actual use of the same in the site.
Clause No.3 Price variation: The plaintiff has totally misunderstood and mislead the provisions of the price variation clause, as provided in the Government Orders and the provisions made in the agreement. The provision of price variation clause is only to cover the increase or decrease in the price from the date of agreement upto the end of agreement period. The increase in the variation in the price between the rates at the time of estimate and at the time of tender proposal by the contractors, are included in the tender proposals and the contractors are quoting their rates accordingly. In this case, the contractor has quoted 85% above the estimate of the Department to cover the increase between estimate and tender. Hence, claiming variation again from the Page No.74/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) date of preparation of estimate, is actually leading to double payment. The rates of materials incorporated in the work, has actually come down during the operative period. The rate of bitumen has in the agreement quarter, is Rs.39,100/- and came down to Rs.29,518/- during actual execution similarly the cost of steel come down from Rs.45,989/- to Rs.37,605/-. Hence, the value of price variation has decreased and worked out to Rs.(-)28,15,385/- up to Vth and part bill and the same was adjusted in that bill. Similarly, the total price variation has been worked out as Rs.(-)33,79,545/- up to 6th and part bill and the balance of Rs.5,64,160/- was adjusted in the 6th part bill. After completion of the work, the total price variation as per the provisions was (-) Rs.17,90,787/- and the excess amount already recovered, was refunded to the contractor along with final bill. The escalation amount arrived by the contractor as Rs.2,01,36,128/- is totally incorrect and are against the provisions and based on wrong concept. The same was corrected as Rs.15,88,759/- by the defendants and was paid along with final bill, as per the provisions of the agreement. Hence, no payment is due to the contractor under this head.
Clause 4: Payment of interest on price adjustment: As per the provisions of the contract agreement on price variation clause, the contract price shall be adjusted for increase or decrease in rates and shall be paid accordingly. Hence, the price variation up to Vth and Part Bill, was arrived as (-) Rs.28 lakhs and hence, adjusted in the Vth and Part Bill. Similarly, the price variation up to VIth and Part Bill was arrived as totally (-) Rs.33.80 and the same was adjusted as per the provisions of the agreement, based on the indices prevailing on the date. On completion of the work, the overall final Page No.75/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) variation in price was arrived as Rs.17,97,241/- on negative side and the same was adjusted in the final bill. Hence, the payment was made fully as per the provisions of the agreement and any allegation in this regard is not true and not maintainable under the terms of the contract. As per Clause 110-02 (a) of PS to SSRB, all interim payments made to the contractor, shall be treated as advances in respect of LS contract and hence, on payment of final bill only, the amount shall be deemed to be due to the contractor. Hence, the claim of interest made on a imagination is not maintainable and no amount is due to the contractor.
Clause 5: Refund of fine required: The recovery of fine imposed for Rs.25,000/- has nt been recovered from the plaintiff, even though it has imposed for slow progress and hence, the question of refund does not arise.
Clause 6: Refund of liquidity damages: Regarding imposing of liquidity damages, out of the contract value of Rs.9,50,12,505/-, the road work is Rs.5,87,17,779/-, value of drainage work is Rs.2,73,83,215/- and the value of cross drainage work is Rs.89,11,511/-. The plaintiff had reported patches and pot holes only in the centre portion at KM 0/0-3/0, KM 4/2 - 4/6 KM 6/8 - 7/0 and KM 9/0 - 10/0. Hence, exempting the above stretches, value of road work that could be executed at the inception itself, was Rs.4,43,92,409/- and the balance road work value of Rs.1,43,25,370/- could not be executed due to the non-provision of item to close the patches and pot-holes. Similarly, out of 24 cross drainage works, 20 could be executed to the value of Rs.70,57,916/- and similarly, out of 6300 m of total length of drain, 854m could be executed for the value of Rs.36,96,734/- and summarising all the above, the road work drainage work Page No.76/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) and cross drainage work, a value of Rs.5,51,47,059/- could have been executed in the free encumbrance site at the time of handing over of work site, i.e. inception time itself on 19.09.2008. The contract value of Rs.9,50,12,505/- has to complete in all aspects for the contract period of 15 months at the rate as per the mile-stone given in the agreement. The corresponding period for the value of the work Rs.5,51,47,059/- is 9 months, i.e. as per the mile-stone, the contractor should have completed Rs.5,51,47,059/- in 9 months But in 9 months, the plaintiff had completed to value of work for Rs.2,12,06,334/- only, ie. upto 24.06.2009 and completed the balance value of work for Rs.5,51,47,059/- in 21 months, i.e. upto 16.06.2010. As per Clause 13 under price variation, if the contractor fails to maintain the rate of progress in accordance with the time fixed, he has to pay liquidated damage at 1/2% of the contract sum for every month of delay till its completion. The liquidated damages to be imposed for the delay, i.e. 12 months (which is more than 10 months and 1/2 % for every month and 5% for 10 months) is Rs.27,57,350/-, however, the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II had imposed the liquidated damages only for Rs.1,97,106/- as on 24.09.2010. As per the revised mile-stone, the balance works for the value of Rs.1,43,25,370/- should be completed in three months, i.e. on or before 19.12.2010. However, the contractor has not completed the value of work for Rs.43,80,131/- till 19.12.2010 and he has taken 10 months to complete the work, i.e. upto 19.07.2011. that is, after a delay of 7 months. The liquidated damages to be imposed for this delay of 7 months to complete the work is Rs.5,36,382/-. The total liquidated damages to be imposed to contractor is Rs.32,93,732/-. However, the Page No.77/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II view the situations and weighted the same and considering the slow progress of work by the contractor, the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II, has imposed Rs.11,90,127/- totally as liquidated damages. Therefore, from the facts, it is seen that the liquidated damages imposed for the given site to the contractor in the beginning of the contract period, is justified and have been done properly as per agreement condition. Hence, the claim for refund of the same, does not arise.
Clause 7: Loss of profit: The quantities furnished in the Schedule-A of the agreement is only tentative quantities and the final payment will be made only as per the actual quantities executed by the contractor. Further, the right is reserved at any time during which, the contract is in force to make any alteration in the work be increase or decrease the quantities that may be in the opinion on the Engineer be necessary. Further, the contractor has completed 72.85% of the work and the balance was foreclosed only based on the request of the contractor. Hence, the allegation of the contractor is not maintainable under the terms of the contract and the claim of loss of profit on the alleged balance of the work, is not admissible.
Clause 8: Loss of profit and over-head: The delay in completion/prolongation of the contract, is not attributable to the Department and the plaintiff alone is responsible for the prolongation of the contract period. The claim of the plaintiff towards loss of profit and over-head is not correct and the same is without any single piece of corroborative evidence other than the built-up correspondences. The plaintiff has Page No.78/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) calculated the loss of over-head and profit based on the HUDSON's formula, but as per this formula, a claimant must prove a necessity to maintain resources on the project and an ability to re-allocate them to more profitable and must give evidence of the process within head office to enable assessment of the portion of over-heads, if any, that are attributable to the delay caused by breach. The claimant itself has executed various works in the Department during the same period. The claim of the plaintiff regarding loss of profit and over-heads, is not true and not maintainable either under the terms of the contract, or under law. Hence, the defendants in C.S.No.576 of 2014 seek to reject the plaint.
92. Learned counsel for the plaintiff in C.S.No.817 of 2012 contended as follows:
(a) The plaintiff was the successful tenderer for the work of widening two lane to four lane and strengthening Mount-Madipakkam Road K.M. 1/6 - 3/0. The plaintiff's tender for the work was accepted for a value of Rs.2,94,754,653/-. The formal agreement was signed on 03.11.2008. The period of execution of the work was 12 months. As per the contract, the following are the schedule of dates:
(i) Date of commencement of the work : 03.11.2008
(ii) Period of completion - 12 months;
(iii) Targeted date of completion : 02.11.2009, and
(iv) Date of completion of work - 18.03.2011.
93. The nature of work was to widen the existing two lands into 4 lanes and Page No.79/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) strengthening the same. The existing road had a width of 7 meters. The tendered work was for widening the existing 7 meters road into 15.7 meters, thereby requiring 8.7 meters of additional width to the existing road on the date of transfer. The defendant did not take any steps to acquire the lands so as to enable execution of the tendered work of widening the road for about 8.7 meters. The road as was existing at the time of tender is in a vary busy locality, market place with permanent structures on both the sides.
94. The defendants ought to have provided for unhindered free site for expansion of the road on both the sides. The defendants failed to acquire the lands and were not able to give free site for execution of the tendered work. It is an accepted case of the defendant that though the tendered work was to the tune of Rs.2,94,74,653/-, however, the value of the work that could be executed in the available free site, was only to the tune of Rs.97,86,108/-. Accepting their inability to provide free site, the defendants' time to time instructed the plaintiff to execute the work with the available ROW (road of way). These instructions by the defendants are a clear admission of the fact that they were not able to provide free site for execution of the tendered work. The plaintiff was fully equipped with infrastructure, gadgets, men and machines that were required for execution of the work, to be executed within a period of 12 months. However, since free site was not made available to the plaintiff, he was put to enormous loss and hardship, unproductive dry over-heads, idle machinery and labour, besides the loss of expected profit and also prevented from taking any other work, in view of the extension of time (EOT) granted by the defendants, without Page No.80/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) actually giving free site for execution of the work.
95. On the instructions of the officials of the defendants, the plaintiff commenced the work and executed the strengthening of the existing road in the available ROW. However, the site conditions was appalling, densely encroached with permanent structures on both sides. Non-provision of free site by the defendants, despite which the plaintiff was compelled to continue to remain in the site, had caused enormous loss and unnecessary over-heads and idling men and machinery.
96. The plaintiff, through letter dated 22.05.2009 (Ex.P-5) stated that the site is full of encroachments and in a busy market area and no steps were taken to acquire the lands for widening the work, had been taken by the defendants. The plaintiff stated that his machines are kept idling at the site for want of free site and that he is incurring un- necessary financial hardship and loss, which has to be compensated by the defendants. By the said letter, the plaintiff has also categorically demanded the defendants to provide free site (or) in the alternative, close the contract and settle the accounts as per the Rules in force. Therefore, the plaintiff had made it clear that unless the encroachments are cleared and provided with free site for execution, it is not possible to execute the road work and the plaintiff had also opted to close the contract and has demanded to settle his account in view of the defendants' inability to provide free site. The defendants neither provided free site nor did close the contract to settle the account of the plaintiff. Instead of responding to the clarion call made by the plaintiff through letters dated 22.05.2009 (Ex.P-3), 21.07.2009 (Ex.P-4), 04.09.2009 (Ex.P-5), 17.11.2009 (Ex.P-6), all within the targeted period of completion of 12 months. Page No.81/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Thereafter also through their letters dated 23.12.2009 (Ex.P-7), the plaintiff had requested to provide free site by clearing encroachments in the site for execution. If the defendants were unable to provide free site, they could close the contract and relieve the plaintiff. It was cautioned that unless the defendants take appropriate steps, the plaintiff will be seeking remedy to recover the loss incurred on account of the idle charges of machines and site Engineers, prevented profits and such other claim as is available to him in law.
97. The witness examined on behalf of the defendant D.W.1 Mr.G.Dakshinamoorthy, Divisional Engineer, Highways Department, had admitted to the fact that he was not aware of any land acquisition proceedings being initiated for providing free site for execution of tendered work. It is also elicited from the evidence that the plaintiff was asked to complete such portion of the road which was free from encroachment. The defendants' witness D.W.1 reflected the stance of the Highways Department, who had conceded to the fact that they were unable to provide free site for execution of the tendered work. Further, the defendants, through Ex.D-12, requested the plaintiff to complete the work within the available ROW.
98. By communication dated 20.06.2010, Ex.P-10, the plaintiff intimated the defendants that in view of their good relationship with Highways Department, he had carried out the work of widening the work wherever possible for a minimum width. Even in the said letter, dated 20.06.2010, it was pointed out by the plaintiff that the required site has not been acquired, encroachments not cleared and free site required for execution, has not been given to him. It was also stated that compensation will be Page No.82/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) sought for non-provision of free site for execution of road work.
99. The defendants, instead of addressing the issues raised by the plaintiff, through the above said letters, unmindful of the non-availability of free site, have sent communications, dated 27.10.2010, directing the plaintiff to attend path-holes, patches wherever required. However, there was no response from the defendants on any of the grievance raised by the plaintiff through their above said letters.
100. Further, the defendants, instead of providing free site, had issued notices on various dates from 15.09.2010 (Ex.D-11), 31.01.2011 (Ex.D-13), 11.10.2011 (Ex.D-
18), 26.03.2012 (Ex.D-19), had imposed liquidated damages citing various provision of PS-SSRB threatening termination of the contract. However, despite so much of caution and threat, the defendants being conscious of their inability to provide free site, did not terminate the contract as threatened in the said notices, instead, closed the contract , issued completion certificate and made the final bill on 30.03.2011 (Exs.P-19 and 20). The defendants, through their final bill marked as Exs.P-18 and 20, dated 30.03.2011, had clearly admitted that the tendered work could not be executed due to "non- availability of road width as per the estimate". The completion certificate issued by the defendants, marked Ex.P-20, dated 30.03.2011, clearly admits to the fact that a major portion of contract work could not be executed for want of free site. The un-executed portion of work for want of free site, had been recorded as savings due to shortage of free site. The defendants have admitted their failure and breach arising out of their inability to provide free site. The breach committed by the defendants, stands established. The failure of the defendants to hand over site, amounts to breach of Page No.83/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) agreement, consequent liability of the defendants to compensate the plaintiffs of their loss of over-heads, profits , prevention of execution of work, idle machinery, idle labour, the defendants are legally bound to compensate as made in the suit.
101. The plaintiff has proved the suit claims by overwhelming evidence and as such, the issues framed in the suit, deserves to be answered in favour of the plaintiff and decree may be passed as prayed for by the plaintiff with costs.
102. The learned counsel for the defendants argued as follows in C.S.No.817 of 2012:
The plaintiff has filed the suit for damages and compensation under four heads of claims of Rs.1,67,13,442/- together with interest @ 18% from the date of filing of the suit and till realisation on the principal of Rs.1,31,30,703/-. The defendants invited tender for the work of widening two lands to four lanes and strengthening of Mount- Madipakkam Road KS 3/6 - 3/0. The tender was awarded to the plaintiff, since he is the lower bidder and an agreement in ExP-2, dated 03.11.2008 was entered into. The contract value was Rs.2,94,74,653/-. The schedule of contract as per Ex.P-2 is as follows:
Particulars Dates
Date of handing over of site and date
of commencement of the work 03.11.2008
Period of contract for completion of
work 12 months
Targeted date of completion 02.11.2009
Plaintiff's date of completion of work 18.03.2011
Delay of completion of work 1 year 4 months 16 days
1st letter issued by the plaintiff to 22.05.2009
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Particulars Dates
defendant (for free site) (6 months 19 days)
103. The following claims are as per the plaint:
Claim No.1: Request for payment of compensation for payment made to the Technical Assistants employed for the work with effect from 03.11.2008 to 03.06.2010 - Rs.30,02,000/- :
As per the plaint averment, the plaintiff is alleged to have employed the following persons:
B.E. Degree holder in Civil Engineer - 2 persons at Rs.25,000/- per month, each for 19 months calculated - Rs.9,50,000/-.
Diploma holder in Civil Engineer - 6 persons at Rs.18,000/- per month, each for 19 months calculated - Rs.20,52,000/-
The plaintiff has not furnished the following details in support of the claim No.1, either in the plaint, or through documents filed by him:
(a) The actual date of mobilisation of the Engineers;
(b) No intimation given to the Engineer (The Divisional Engineer) about the mobilisation of the Engineer;
(c) The name of the Engineers alleged to have been employed by the plaintiff for the work;
(d) The salary details along with the proof for payment of salary for two B.E. degree holders and 6 Diploma holders;
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(e) The details of the works carried out by the plaintiffs' Engineers;
(f) Diaries and wages of the said site Engineers, and
(g) Days of idleness of the plaintiff's Engineers and the payment made by the plaintiff to his site Engineers with proof of having made the payment. Thus, from the evidence available on record, the learned counsel appearing for the plaintiff submitted that the Claim No.1 made by the plaintiff with regard to the alleged employment of Site Engineers, charging 03/11/2008 to 03/06/2010 is not eligible and deserves to be rejected.
Claim No.2: Request for payment of compensation for the prevention made by the Department for completion of entire work - Rs.19,65,210/- :
It is alleged in the plaint that free site is not handed over and the same is not correct. As per the admission of the plaintiff, the free site was handed over on 03.11.2008. The plaintiff has started the work after a lapse of 17 months on 06.05.2010, which was in Ex.-18 in the measurement book taken on the site based on the work and on verification, it was found that the work commenced only on 06.05.2010. So, the claim of free site was not given, is an excuse for the delay occasioned due to the fault of the plaintiff. The claim as per the plaint is as follows:
(i) Value of contract - Rs.2,94,74,653/-
(ii) Total value of final bill - Rs.98,22,551/-
(iii) Prevented value of work - Rs.1,96,52,102/-
(iv) 10% profit margin - Rs.19,65,210/-
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https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) As per Clause 105.03 of preliminary specification to SSRB (forming part of the mutually signed agreement), the plaintiff ought to have furnished the detailed programme of each of the major elements of the work for approval to the Engineer-in-charge of the work, i.e. the second defendant. But, the plaintiff has failed to furnish any such rate of progress under the head of programme for completion of the work, in accordance with the mile-stone fixed as per Ex.P-2 and the same was not followed by the plaintiff as percentage in agreement, marked as Ex.P-5. Further, the plan of work to be furnished, the equipment to be used and the amount and nature of the labour to be employed, should have been furnished by the plaintiff and get approved by the Engineer, whereas, the plaintiff has conveniently ignored these aspects and had written only letters marked as Exs.P-3 to P-7, Ex.P-10, Ex.P-15, Ex.P-16, Ex.P-18, Ex.P-21, Ex.D-11, Ex.D-10 and Ex.D-15 to build the case for claims. Purposely, the entire letters issued by the plaintiff is for free site, refund of fine, refund of security deposit (EMD, ASD) and extension of time for slow progress in order to escape from condition to the agreement of contract. In the above context, the plaintiff has not furnished the following details:
(i) Number of plants mobilized by the plaintiff for executing the work with current calibration Certificate;
(ii) The actual date of mobilisation of the plants and make of the plant;
(iii) The intimation given to the Engineer-in-Charge about the mobilisation of plant;
(iv) The copy of the definite approved programme of works and its limits with the mobilisation of plants;
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(v) The plant log books and the number of days worked and number of idle days along with the log books;
(vi) The name of the site Engineers (Technical Assistant) employed by the plaintiff for the work;
(vii) The payment details along with the acquaintances ;
(viii) The details of works carried out by the plaintiff's site Engineers
(ix) Wages and diaries of the plaintiff Site Engineers;
(x) Days of idleness of the plaintiff's Site Engineers and the payment made to them with proof of having made payment.
104. Further, the question of the defendants preventing the plaintiff from executing the work is highly imaginary. The plaintiff has received the entire final bill Ex.P-19 and Ex.P-20, there is no privity of contract between the plaintiff and the defendants and the claim is not sustainable. The plaintiff made an endorsement in Ex.P- 19 under protest, but not stated as to why the plaintiff is receiving the bill under protest. There is evidence of P.W.1 in this regard in cross examination. On the contrary, imposition of fines for the slow progress of work of the plaintiff in the available width of the road itself proves that there was not prevention of works by the defendants and only because of plaintiff's slow progress, such claim was issued. Hence, the claim made by the plaintiff with regard to the said prevention made by the Departments (defendants) for completion of entire work is not eligible and deserves to be rejected.
105. Claim No.3: Request to make payment for the loss of profit and over-heads met by the plaintiff due to prolongation of contract at no fault on him. Page No.88/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) As per the plaint, no free site was handed over to the plaintiff and so, the plaintiff applied Hudson formula for compensation - Rs.80,48,848/-.
Hudson formula = % x contract sum x extended period of weeks, divided by the contract period in weeks.
Loss of profit and over-heads as claimed by the plaintiff. The prolongation of contract was only due to the fault of the plaintiff for not completing the work within the available width as per the fixed time frame. Since there is no definite programme of works furnished by the plaintiff for progressing the work as per the agreement in the rate of progress under the head of programme for completion of work by way of mile-stone fixed as percentage is marked as per Ex.P-5. Therefore, the anticipation of profit is not quantified. The prolongation of contract period is purely due to the plaintiff's negligence and slow progress and delay in work by the plaintiff. Hence, the question of payment for the loss of profit, does not arise. Hence, Hudson formula cannot be accepted in this case. There is no proof for 10% profit and 10% over-head charges.
Claim No.4: Request to refund of fines - Rs,1,11,000/-
1st time = Rs.1,000/-
2nd time = Rs.10,000/-
3rd time = Rs.1,00,000/-
Total fine = Rs.1,11,000/-.
106. Learned counsel for the plaintiff in C.S.No.817 of 2012 is seeking refund of Page No.89/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) the fine amount. The claim that the site was not handed over is false. The site was handed over on 03.11.2008, which is admitted by the plaintiff. Even after repeated instructions by the Defendant's office, the plaintiff has been frequently advised to complete the work within the available width of the road. Even in the available width also, the plaintiff has not completed all the work in the specified time. Apart from the above, it is submitted that the fine imposed by the defendants is just too lower that the actual entitlement. Therefore, the alleged claims made by the plaintiff with regard to the loss of profit is not at all admissible and deserves to be rejected. Further, as per the agreement concluded with the first defendant, the fine can be imposed upto 5% of the contract value, i.e. Rs.14,77,733/-, whereas the defendants had imposed only fine of Rs.1,11,000/- and hence, the allegation made by the plaintiff that the defendants have imposed Rs.1,11,000/- as fine may not be appreciated and instead, the action of the defendants is only as per the scope of the terms of the mutually agreed agreement. The plaintiff has not completed all the works in the available ROW within the stipulated time frame. Hence, the fine was imposed on various occasions and also extension of time was given as requested by the plaintiff which is marked as Ex.P-10 in order to keep the contract alive. After getting extension, it is not open to the plaintiff to claim refund of the fine amount.
107. Learned counsel for the defendants in C.S.No.817 of 2012 further contended that the contract value Rs.2,94,74,653/- and total value of final bill Rs.98,22,551/- Ex.P-19 and the contract had not executed any work for the balance bill amount of Rs.1,96,52,102/- which is admitted by the plaintiff, claims itself. For the delay Page No.90/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) and non-completion of work as per contract and SSRB fine of Rs.1,11,000/- was imposed by the defendants, is admitted in the averment made in the plaint pleadings and claim of the plaintiff.
108. Further, the defendant had invited tender for the work of "widening two lane to four land and strengthening of Mount-Madipakkam Road Km 1/6 - 3/0. The tender was awarded to the plaintiff and since his tender was the lowest responsive and the agreement for the same had been concluded, vide agreement No.27/2008-2009, dated 03.11.2008, Ex.P-2 for a contract value of Rs.2,94,74,653/- and the period of contract was 12 months. The site was handed over to the plaintiff on 03.11.2008 and the instructions were given to him to commence the work on the agreement day (i.e. on 03.11.2008) itself and no dispute regarding commencement of contract on 03.11.2008 and P.W.1 also admitted in the deposition.
109. The learned counsel for the defendants in C.S.No.817 of 2012 further contended that the plaintiff was not able to commence the work from the date of handing over of site (i.e. from 03.11.2008 onwards). The plaintiff started the work only after a lapse of 17 months, which was evidenced upto page 57 of the measurement book 337 and upto page 88 of the measurement book 372 with the date of measurement as 06.05.2010, and the same is marked as Ex.D-6 (page 71), Ex.D-7 (page 73), Ex.D-20 (page 75) of the defendants' typed set. As per Ex.D-20, the measurement at page 102 of the typed set filed by the plaintiff, the work was commenced on 06.05.2010.
110. Further, the free site is available for the plaintiff to commence the work and Page No.91/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) hence, the plaintiff was asked to execute the work within the available right of way. However, the plaintiff has not achieved the rate of progress for the available right of way and hence, the fine was imposed on various occasions, dated 15.09.2010 - Rs.1,000/- fine imposed for non-completion and on 20.09.2010 - Rs.1,00,000/- as per the terms of the agreement. As per the time schedule in Ex.P-2, the work has to be completed on 02.11.2009. As per SSRB to the agreement Rules 105.18, 108.18, 109.05(a), 109.07 for slow progress of the work, the work extended beyond the contract period, the fine was imposed as per Ex.P-12 letter, dated 29.10.2010 and Ex.P- 17 letter dated 31.01.2011. Further, the plaintiff has requested to settle his accounts such as EMD, ASD, Retention money, etc., with some more claims like idle charges for machineries, what all machineries used and the actual date of mobilisation of the Engineers and the claim is not proved by the plaintiff for non-intimation given to the Divisional Engineer about the mobilisation of the men and machineries and the name of the Engineers alleged to have been employed by the plaintiff for the work. Further, the payment details along with the vouchers and bills, the details of the works carried out by the plaintiff's Engineers, the diaries and wages of the alleged site Engineers and the number of days of idleness of the plaintiff's Engineers and payment made by the plaintiff to his site Engineers with proof of having made the payment, and these are the claims requested by the plaintiff to settle his accounts. Learned counsel further contended that a single piece of document is marked by the plaintiff and necessary pleadings were made in the plaint to substantiate their claim. In the evidence, the plaintiff admitted that he has neither pledged nor proved the alleged employment of Page No.92/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Engineers, etc., in the prosecution witnesses cross made.
111. It is further contended by the defendants in C.S.No.817 of 2012 that the allegation of non-availability of free site is of no use made to the cover up the delay in execution of work, Ex.P-3, dated 22.05.2009 and Ex.P-4 dated 21.07.2009 reveals the same, which were written after completion of six months of the contract period, dated 02.11.2009. Agreement marked as Ex.P-2 clearly mentioned the rate of progress under the head of programme for completion of work in the way of mile-stone fixed as percentage. The documents, i.e., Ex.P-10, Ex.P-15 and Ex.P-16 marked on the side of the plaintiff will clearly reveal that the claim for free site is not correct and the plaintiff failed to commence the work in time and consequently delayed the project. The said three documents will clearly reveal that the claim of non-availability of free site is made to cover up the delay in execution of the work. The plaintiff sought extension of time and when extension is sought in an admission that the site is available for the plaintiff to do the work. Exs.P-11, 12, 13 and 14 show that the plaintiff is not entitled for the claim. These exhibits will have to be checked with the plaintiff's response in Exs.P-10, P-15 and P-16. The plaintiff seeks extension of time for time says violation of principles of natural justice. By these documents, the plaintiff accepts the delay and hence, the plaintiff is not entitled for any claim. Ex.P-5 dated 22.05.2009 was written alleging free site was not available by the time the plaintiff ought to have completed 75% of the work as per the agreement rate of progress, which was not achieved by the plaintiff and so, it is clear that Ex.P-5 is written to cover up the delay. The plaintiff had not commenced the work on time, which is evidenced by perusal of the measurements Page No.93/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) recorded for the work done up to page 57/M Book 337 and up to page 88/M book 372, respectively, marked as Exs.B-6, B-7, B-20, just to escape from foreclosure and the action by the defendant. All of a sudden, the plaintiff woke up after six months from handed over the site the plaintiff and started writing letters to the defendant in Ex.P-3 to Ex.P-7.
112. It is further contended that the site for execution had been handed over to the plaintiff (contractor) upto 20.05.2010 as alleged. Instead, it is submitted that the site has been handed over to the plaintiff on 03.11.2008, which was admitted in the plaintiff witness--PW1, dated 11.08.2021. From the beginning of the agreement, the plaintiff was requested to carry out the widening work within the available right of way (ROW). That is why the plaintiff had been levied penalty on various occasions for non- compliance of the rate of progress for the given ROW. Regarding the attending patches and pot-holes, it is the sole responsibility of the plaintiff (contractor) to carry out any repairs noticed in the completed works within the defect liability period. Hence, the work of attending pot-holes and patches are not eligible for payment as alleged by the plaintiff. The defendant imposed fine to the plaintiff on 15.09.2010 (Exs.P-12 and D-11), 20.09.2010 (Ex.P-13 and Ex.D-16) and 29.09.2010 (Ex.P-14) only because of the slow progress and non-completion of work by the plaintiff in the available ROW. Further, the plaintiff was levied penalty only for the inordinate delay in the progress of work in the available ROW and the plaintiff has not completed the work on 15.02.2011 as alleged in his letter dated 28.02.2011 which is marked as Ex.P-18. The plaintiff has not filed any documents to show that Ex.P-20 served on the defendant. Instead, the plaintiff Page No.94/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) has completed the work in the available ROW only on 18.03.2011 as agreed by the plaintiff in the letter dated 18.04.2011, which is marked as Ex.P-21. Accordingly, the final bill was paid to the plaintiff by the defendant on 30.03.2011. The defendant has not prevented the plaintiff to execute the work to a tune of Rs.1,96,88,545/-, since the plaintiff has neither mobilised any men and machineries, nor collected/stored/processed any material required for the balance value of work. P.W.1 (plaintiff) admitted that during that period of time, the plaintiff was working in another road contract for widening from single lane to two lanes and strengthening of Sholavaram-Orakkadu- Arumathai-Perumullaivoual Road Km 0/0 - 10/0 with the same second defendant. The contract period from 19.08.2008 to 18.12.2009 within the same period of contract and the abovesaid case period of contract was commenced from 03.11.2008 to 02.11.2009. Further, in the another contract also, the plaintiff had filed a suit for compensation and damages in C.S.No.576 of 2014 under similar heads of claim like above said case. The plaintiff is the habitual delinquent and the defendants pray for dismissal of C.S.No.817 of 2012.
113. Learned counsel for the defendants further contended as follows in C.S.No.817 of 2012:
(a) In the suit, the plaintiff had not followed Section 80 of the Code of Civil Procedure. As per Section 80 CPC, it is mandated that prior to institution of suit, notice under Section 80 CPC should have been issued and delivered to the defendants. The plaintiff filed a letter dated 03.03.2012 marked as Ex.P-22 alleged to have been a notice issued under Section 80 CPC, but Section 80 CPC mandates that such a notice should be Page No.95/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) delivered to the defendants. The acknowledgement card is not filed and marked as an exhibit. Hence, it is clear that Ex.P-22 is not in accordance with Section 80 CPC. The plaintiff has not filed any proof for delivery of notice under Section 80 CPC and hence, it is clear that issuance of notice under Section 80 CPC, had not been followed by the plaintiff, due to which, the suit is liable to be dismissed.
(b) The defendants relied on the decisions of the Supreme Court reported in 1962 SCC Online SC 273 (Amar Nath Dogra Vs. Union of India) and 1984 (2) SCC 627 (Bhari Chowdhary and another Vs. State of Bihar and others) for the proposition that the effect of Section 80 CPC is clearly to impose a bar against the institution of a suit against a Government or Public Officer in respect of any purported to be done by him in his official capacity until expiration of two months after notice in writing has been delivered to or left at the office of the defendant. The plaintiff herein has not discharged his burden. The provisions of Section 80 CPC is mandatory. Further, in another decision of the Supreme Court reported in 2001 (1) SCC 555 (Bishandayal and sons Vs. State of Orissa), it was observed by the Apex Court that where the plaintiff's cause of action is against the Government and the plaint does not show that notice under Section 80 CPC was served, it would be duty of the Court to reject the plaint.
(c) In the evidence, when D.W.1 was in box, he was confronted with the above facts in the cross examination. Further, as the plaintiff does not have any answer for the question relating to the non-production of the acknowledgement and hence, it has to be accepted that there is no notice at all under Section 80 CPC and hence, on this ground alone, the suit is liable to be dismissed.
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(d) Further, the plaintiff had discharged the contract by performance and so, the contract has come to an end by performance and hence, he is not entitled to make any claim after receipt of the Completion Certificate Ex.P-20 and the money due for the work done. As per Ex.P-2, as escalation Clause VII, there is escalation of 42.50% above the estimate rate for the year 2006-2007 and 4.80% above the estimate rate for the year 2008-2009, and so, the total will be 47.30% over and above the estimate rate. The estimate value of the tender is Rs.2,06,83,967.25 and the tender excess is Rs.87,90,687.08 and since there is a tender excess, the plaintiff's claim Nos.1 to 4 will not arise and liable to be rejected. For the work done as per Ex.P-19, the plaintiff has received the entire amount due, which has been accepted by the plaintiff and he is not entitle to any amount.
114. The learned counsel for the plaintiff in C.S.No.818 of 2012 contended as follows:
(a) The plaintiff has filed the above suit seeking compensation and damages under various heads, on account of breach committed by the defendants arising out of their inability to hand over free site for execution of the tendered road work, resulting in loss and hardship to the plaintiff.
(b) The plaintiff was the successful tenderer for the work of widening two lanes to four lanes and improving Mount-Madipakkam Road KM 0/0 - 2/0. The plaintiff's tender for the work was accepted for a value of Rs.4,35,06,888/-. The formal agreement was signed on 29.09.2008. The period for execution of the work was 12 Page No.97/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) months. As per the contract, the following are the schedule of dates:
(a) Date of commencement of the work - 04.11.2008
(b) Period of date of completion - 12 months
(c) Targeted date of completion - 03.11.2009
(d) Date of completion of work - 18.03.2011
(c) The nature of the work was to widen the existing two lanes into 4 lanes and strengthening the same. The existing road is a width of 7 meters. The tendered work was for widening existing 7 meteres road into 15.7 meters, thereby, requiring 8.7 meters of additional width to the existing road on the date of tender. The defendants did not take any steps to acquire the lands so as to provide free site for execution of the tendered work of expanding the road for about 8.7 meters. The road as was existing at the time of tender, was in a very busy locality, market place with permanent structures on both sides. The defendants ought to have provided for unhindered free site for expansion of the road on both sides. The defendants failed to acquire lands and were not able to give free site for execution of the tendered work. It is an accepted case of the defendants that though the tendered work was to the tune of Rs.4,35,06,888/-, however, the value of the work that could be executed in the available free site, was only to the tune of Rs.2,15,99,886/-. Accepting their inability to provide free site for execution of the tendered work, the defendants time to time instructed the plaintiff to execute the work with the available ROW (right of way). These instructions by the defendants are clear admission of the fact that they were not able to provide free site Page No.98/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) for execution of the tendered work.
(d) The plaintiff was fully equipped with infrastructure, gadgets,men and machineries that were required for execution of work, within a period of 12 months.
However, since free site was not made available to the plaintiff, he was put to enormous loss and hardship, unproductive dry over-heads, idle machinery and labour, besides the loss of expected profit and also prevented from taking any other works, in view of extension of time (EoT) granted by the defendants without actually giving free site for execution of the work.
(e) On the instructions of the officials of the defendants, the plaintiff commenced the work and executed the strengthening of the existing road in the available ROW, however, the site conditions were appalling, densely encroached with permanent structures on both sides. Non-provision of free sit by the defendants, despite which the plaintiff was compelled to continue to remain in the site, had caused enormous loss and un-necessary over-heads and idling men and machinery.
(f) Further, the plaintiff, in the letter dated 04.04.2009 (Ex.P-4), has clearly stated that the site is full of encroachment and in a busy market area. No steps were taken to acquire the lands for widening the work, which had only been taken by the defendants. The plaintiff has also stated that his machineries are kept idling at the site for want of free site, and he is incurring un-necessary financial hardship and loss, which has to be compensated by the defendants.
(g) The plaintiff has categorically stated through his letter dated 22.05.2009 (Ex.P-5) demanding the defendants to provide free site, or in the alternative, close the Page No.99/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) contract and settle the accounts as per the Rules in force. Therefore, the plaintiff made it clear that unless the encroachments are cleared and provided with free site for execution, it is not possible to execute the road work. The plaintiff also opted to close the contract and has demanded to settle the account in view of the defendants' inability to provide for free site.
(h) The defendants neither provided free site, nor did close the contract to settle the account of the plaintiff. Instead of responding to the clarion call made by the plaintiff through letters dated 22.05.2009 (Ex.P-5), 21.07.2009 (Ex.P-6), 04.09.2009 (Ex.P-7), 17.11.2009 (Ex.P-8) and 18.10.2012 (Ex.P-11), all within the targeted period of completion of 12 months. Thereafter also, through letters dated 23.12.2009 (Ex.P-9), the plaintiff requested to provide free site by clearing the encroachments in the site for execution. If the defendants were unable to provide free site, they could close the contract and relieve the plaintiff. It was cautioned that unless the defendants take appropriate steps, the plaintiff will be seeking remedy to recover the loss incurred on account of the idle charges of machineries and site Engineers, prevented profits and such other claim available to him under law.
115. D.W.1--Mr.G.Dakshinamoorthy, Divisional Engineer, Highways Department, had approved the fact that he was not aware of any land acquisition proceedings being initiated for providing free site for execution of tendered work. It is also clear from the evidence of D.W.1 that the plaintiff was asked to complete such portion of the road which was free from encroachment. D.W.1 reflected the stance of the Highways Department and conceded to the fact that they were unable to provide Page No.100/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) free site for execution of the tendered work. It was further requested to the plaintiff to complete the work within the available ROW (right of way). The defendants, instead of addressing the issues raised by the plaintiff through the above stated letters, unmindful of the non-availability of free site, have sent communications dated 20.09.2010 (Ex.D-
5), directing the plaintiff to attend the work. However, there was no response from the defendants on any of the grievance raised by the plaintiff. On the contrary, through letters dated 28.09.2009 (Ex.D-2), 30.04.2010 (Ex.D-3), 15.09.2010 (Ex.D-4), 20.09.2010 (Ex.D-5), 29.101.2020 (Ex.D-6) and 31.01.2011 (Ex.D-7) have imposed liquidated damages citing various provisions of PS-SSRB threatening termination of the contract. However, despite so much of caution and threat, the defendants being conscious of their inability to provide free site, did not terminate the contract as threatened in the said notices, instead closed the contract, issued completion certificate and made the final bill on 30.03.2011 (Ex.P-16).
116. The defendants, through their final bill marked as Ex.P-16 dated 30.03.2011, have clearly admitted that the tendered work could not be executed due to non-availability of road width as per the estimate. The completion certificate issued by the defendants marked as Ex.P-16, dated 30.03.2011 clearly admits to the fact that a major portion of contract work could not be executed for want of free site. The un- executed portion of work for want of free site, had been recorded as savings due to shortage of free site. The defendants have admitted their failure and breach arising out of their inability to provide free site. The breach committed by the defendants stands established. The failure of the defendants to hand over free site, amounts to breach of Page No.101/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) agreement, consequent liability of the defendants to compensate the plaintiff of the loss of over-heads, profits, prevention of execution of work, idle machinery, idle labour that the defendants are legally bound to compensate as made in the suit. Thus, according to the plaintiff, he has proved the suit claims by overwhelming evidence, and as such, the plaintiff prays for decreeing the suit.
117. The learned counsel for the defendants argued as follows in C.S.No.818 of 2012:
(a) The plaintiff is a successful tenderer for widening of two lanes to four lanes road and strengthening of road from Mount Madipakkam Km 0/0 - 2/0. The tender was awarded to the plaintiff, since his tender was the lowest and an agreement was entered into between the plaintiff and the defendant in Agreement No.23/2008/209, dated 29.09.2009 (Ex.P-2).
Particulars Dates
Date of agreement of contract 29.09.2008
Handing over of site on 29.09.2008
Date of commencement of the work 04.11.2008
Period of contract for completion of 12 months
work
Targeted date of completion 29.09.2009
Value of contract work Rs.4,35,06,888/-
Plaintiff date of completion of work 18.03.2011
Delay of completion of work 1 year 5 months 18 days
(b) The suit is liable to be dismissed for non-compliance of Section 80 CPC. Page No.102/170
https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Ex.P-19 is the notice alleged to have been issued under Section 80 CPC, but no acknowledgement is filed or proof of filing the notice is not marked as evidence and hence, the suit is liable to be dismissed for not complying with Section 80 CPC. The plaintiff has not obtained the dispensing with issuance of notice under Section 80 CPC. The suit is not maintainable for the reason that as per Ex.P-2 agreement, there is a tender excess at 42.50% above the estimate rate for the year 2006-2007 and 4.85% above, the estimate rate for the year 2008-2009, if the amount is worked out as per Ex.P-20 completion certificate. The quotation of the plaintiff is Rs.2,06,83,967.25 and the tender excess is Rs.87,90,787.08, in view of the tender excess, the plaintiff cannot claim any amount from the defendant.
(c) The plaintiff had fully discharged the contract and the settlement has been effected by issuing the final bill as per Ex.P-19 and the discharge certificate as per Ex.P-20, even though the plaintiff in Ex.P-19 has received the amount under protest, and he has not stated as to what is the protest he is liking and hence, in view of the fact that the contract has come to an end.
(d) The sit was handed over to the plaintiff on 29.09.2008 as per Ex.P-12. As per the evidence of P.W.1, as per the agreement, 12 months' time is given to complete the work which falls on 29.09.2009. As per the plaint, it is admitted that the plaintiff addressed a letter dated 20.10.2008 Ex.P-3, stating that free site was not given, which means that for nearly a month, no work commenced. As per Ex.D-1 "M" book No.155, page 1, commenced the work only on 04.11.2008, and so it is clear that the defence of non-availability free site is a false plea put up to cover up the delay in commencing the Page No.103/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) work. In the entry on 19.11.2008, page No.2, the plaintiff also signed. The reason as claimed in the plaint is regarding free site, is not available. As per paragraph 7(i) of the plaint, the land acquisition was pending between chainage 0 to 500(ii), a minor bridge falls within the Metro Rail project. The plaintiff has not substantiated the claims. Even from the plaint averment in paragraph 6 (c) and Ex.P-4, the plaintiff's claim is not correct. In paragraph 6(c) of the plaint, while referring the plaintiff's letter, dated 04.04.2009 addressed to the second defendant, it is stated therein to carry out the work upto DBM between the stretch at KM 0/770 and KM 1/530 and that further work has been in progress in that stretch and the stretch between KM 0/0 and 0/770 and KM 1/530 - 2/0 lies in the built-up area and hence, there is no space to carry out any work. Hence, the plaintiff's machineries are kept idle at the site for want of free site and because of this, the plaintiff has been alleged to have been put to heavy financial loss, as stated in the said letter. The plaintiff also requested to acquire the required lands and hand over the free site for execution of work. To the said letter, dated 04.04.2009, of the plaintiff, there was no response from the second defendant.
(e) When it is admitted that the plaintiff is able to complete DBM work between the stretch at KM 0/770 and KM 1/530, how can there be land acquisition in the chainage between 0 to 500 and regarding the bridge, there is no communication with CMRL and the plaintiff is making the allegation to cover up the delay. Further, as to how the plaintiff approached the above issue by falsely claiming free site not available, which can be seen from the cross-examination of D.W.1.
118. Claim No.1 : Requested to make payment of compensation for the idle Page No.104/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) period for the payment made to the Site Engineer (Technical Assistants) employed for the work with effect from 04.04.2009 to 27.07.2010 - Rs.24,88,500/-:
The plaintiff is stated to have employed B.E. Degree holders in Civil Engineering Nos.2 at Rs.25,000/- per month each for 15 months 75 days, calculated - Rs.7,87,500/- and the Diploma holder is Civil Engineer - 6 Nos., at Rs.18,000/- per month for 15 months 75 days calculated - Rs.17,01,000/- and total claim is Rs.24,88,500/-. Further, the plaintiff failed to prove that he had incurred the damages claimed under Claim No.1, and that the following details are lacking from the plaint or in evidence:
(i) Number of machines with crew mobility by the plaintiff for executing the work with current calibration certificate.
(ii) The actual date of mobilisation of the machines with crew to the site.
(iii) The intimation given to the Engineer-in-charge about the mobilisation of machineries with crew.
(iv) The copy of the definite approved programme of works and its limits with the mobilisation of machineries with crew.
(v) The log books and the number of days worked and number of idle days along with log books.
(vi) The name of the Site Engineers (Technical Assistants) employed by the plaintiff for the work.
(vii) The payment details along with the acquaintances.
(viii) The details of works carried out by the plaintiff's Site Engineers.
(ix) Wages and diaries of the plaintiff's Site Engineers. Page No.105/170
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(x) Days of idleness of the plaintiff's Site Engineers and the payment made to them with the proof of having made payment.
119. The claim made by the plaintiff with regard to the said alleged employment of Site Engineers, charging 04.04.2009 (Ex.P-4), 17.11.2009 (Ex.P-8), 23.12.2009 (Ex.P-
9) is not eligible and deserves to be rejected.
120. The plaintiff has examined himself alone and none of the persons is alleged to have employed or proof for payment of salaries is filed and hence, the claim is liable to be rejected. The evidence of P.W.1 assumes importance to show that the plaintiff has not substantiated Claim No.1. The learned counsel for the defendants, while showing the evidence of P.W.1, submitted that the Claim No.1 is to be rejected.
121. Claim No.2: Claim for a sum of Rs.2,19,07,002/- to works prevention of profit earnings due to foreclosure of contract by non-handing over of site for completion of the work:
As per the plaint, the value enumerated is as under: i.e., value of contract is Rs.4,35,06,888/-, the total value of final bill is Rs.2,15,99,886/- and the balance value of work is Rs.2,19,07,002/-. 10% earning profit is Rs.21,90,700/-. Further, as per the agreement dated 29.09.2008, Ex.P-2, the period of contract is 12 months. The plaintiff commenced the work after lapse of 1 month, which is evidenced from page 1 of the measurement book 155 Ex.D-1, with the date of measurement as 04.11.2008. Further, as per Ex.D-3, the clause 109.05 speaks of preliminary specification to SSRB and this forms part of the mutually signed agreement. The plaintiff ought to have furnished the Page No.106/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) detailed programme of each of the major elements of the work for approval to the Engineer-in-charge of the work. In this case, the Divisional Engineer, defendant No.2. But the plaintiff has failed to furnish any such programme. Further, the plan of work to be furnished, the equipment to be use and the amount and character of the labour to be employed, should have been furnished by the plaintiff and get approved by the Engineer, whereas the plaintiff has conveniently ignored these aspects and had written only letters to build the case for all plaint claims. The letters are marked as Ex.P-3 (20.10.2008), Ex.P-5 (22.05.2009), Ex.P-6 (21.07.2009), Ex.P-7 (04.09.2009), Ex.P-8 (17.11.2009), Ex.P-9 (23.12.2009) and Ex.P-11 (18.10.2010). According to the defendants, the plaintiff has not furnished the following details:
(i) Number of the machine with crew mobilised by the plaintiff for executing the work with current calibration certificate.
(ii) The actual date of mobilisation of the machineries with crew make of the plant.
(iii) The intimation given to the Engineer-in-charge about the mobilisation of machineries with crew.
(iv) The copy of the definite approved programme of works and its limits with the mobilisation of machineries with crew.
(v) The machineries with crew log books and the number of days worked and number of idle days along with log books.
(vi) The name of the Site Engineers (Technical Assistants) employed by the plaintiff for the work.
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(vii) The payment details along with the acquaintances.
(viii) The details of work carried out by the plaintiff's Site Engineers.
(ix) Wages and diaries of the plaintiff's Site Engineer.
(x) Days of idleness of the plaintiff's Site Engineers and payment made to them with the proof of having made payment.
122. The alleged claim of payment of compensation due to prevention of profit earnings due to foreclosure of contract is not having any valid substance. On the contrary, imposition of fines for slow progress of work on various dates, are marked as Ex.D-3 (28.09.2009), Ex.D-4 (30.04.2010), Ex.D-5 (15.09.2010), Ex.D-6 and Ex.P-10 (20.09.2010), Ex.P-12 and Ex.D-7 (29.10.2010) and Ex.D-8 (31.01.2011). As per the agreement - rate of progress and non-disclosure of weekly report as per manual of SSRB, the plaintiff is not able to make any progress in the available width of the road,which proves that there was no prevention of work by the defendants. Hence, the claim made by the plaintiff with regard to the said prevention made by the Department (defendants) for completion of entire work is not correct and deserves to be rejected. The plaintiff sought extension of time and the same was allowed as per Ex.D-3 and so, the claim of prevention of work will not arise. The measurement book D1, D2 and D14 will clearly reveal that the plaintiff was doing work but not as per Schedule, the plaintiff has been asked to do work ROW (right of way), which even the plaintiff could not do. In order to overcome the slow progress of work, the plaintiff is falsely claiming prevention of work.
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123. Claim No.3: As per the plaint claim No.3 is to make payment for the loss of profit and overheads met with by the plaintiff due to the prolongation of contract at no fault on it - Rs.1,13,78,725/-
(a) As the plaintiff failed to prove that during the relevant period, he would have made certain sum of money in another contract, the plaintiff is not entitled for such a claim, as per the decision reported in 2023 Live Law (SC) 817 (Batliboi Environmental Engineers Limited Vs. Hindustan Petroleum Corporation Limited and another) and also as per S.L.P(Civil).No.8791 of 2020 (M/s.Unibros Vs. All India Radio), dated 19.10.2023.
(b) According to the defendants, Hudson's formula is not acceptable. The plaintiff made calculation on hypothesis. There is no evidence to show as to how the formula is applicable to the facts of the case. The plaintiff admitted that with hurdles, he entered into the agreement and so, the plaintiff is not entitled for loss of profit and overheads. The prolongation of the contract was only due to the fault of the plaintiff for not completing the work within the available width as per the fixed time frame contained in the agreement. As per Ex.P-2, time is the essence of the agreement. Since there is no definite programme of works furnished by the plaintiff for progress of the work and hence, the anticipation of profit is not quantified The prolongation of contract period is purely due to the plaintiff's negligence and hence, the question of payment for the loss of profit does not arise. Hence, based on the above submissions and reasons, the above claim by the plaintiff is not at all admissible, since they did not contain any authenticated documents. It is not explained as to how the amount is arrived at. The Page No.109/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) plaintiff asked for extension of time as per Ex.P-3 which was given, but the plaintiff failed to execute the work within the extended period and so, the question of loss of profit will not arise. Seeking extension of time is a bar to claim loss of profit.
124. Claim No.4 : As per the plaint, this claim relates to fines imposed and recovered by the Department:
The details of fine recovered are as under:
1st time 29.09.2010 - Rs.10,000/-
2nd time 29.09.2010 - Rs,1,00,000/-
Total fine = Rs.1,10,000/-.
125. Even after repeated instructions by the defendants' office, the plaintiff has not carried out the work within the stipulated time fixed. The plaintiff has been frequently advised to complete the work within the available width of the road. Even in the available width also, the plaintiff has not completed all the work in the specified time. The fine has been imposed to the plaintiff for slow progress of work in the available road width from Km 0/500 - 2/0 as per the terms of the agreement only and hence, the action of the defendants by imposing fine is not illegal and misuse of power as alleged by the plaintiff. Fine is imposed as per the agreement. The fine imposed on various dates as per Clause 109.03 of SSRB is marked as Exs.D.3 (28.09.2009), Ex.D-4 (30.04.2010), Ex.D-5 (15.09.2010), Ex.D6 and Ex.P-10 (20.09.2010), Ex.P-12 and Ex.D7 (29.10.2010) and Ex.D.8 (31.01.2011) for slow progress and as per Clause 105.03, the plaintiff failed to file the weekly report. As per SSRB clause 109.05, 109.05(a), 109.07, Page No.110/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) 105.18 and 108.18, the plaintiff had not followed the time schedule and there is slow progress of work and so, the fine had been imposed by the defendant is just too lower than the actual entitlement. Therefore, the alleged claims made by the plaintiff is only against two fine amount marked as Ex.D-6 and Ex.P-10 (20.09.2010), fine Rs.10,000/-, Ex.P-12 and Ex.D-7 (29.10.2010) fine Rs.1,00,000/-. The claim with regard to the refund amount is not at all admissible and deserves to be rejected. There is no clause in the agreement for the refund of fine amount. As contended by the plaintiff, it is not that the defendant had not handed over the site for execution of the work. Instead, the site was handed over to the plaintiff immediately after signing of the contract, i.e. on 29.09.2008 itself as per Ex.P-2. The plaintiff's statement that the entire length of the widening area lies in the built-up area, encroachment and market, etc., is false. Only in certain packets, the land acquisition was pending and therefore, the plaintiff was asked to execute the work within the available right of way (ROW).
126. Further, the plaintiff had written a letter dated 07.10.2011, which is not marked as a document, with a request to settle his account, such as EMD, ASD, retention money etc., with some more claims like:
(i) idle charges for the machineries and Site Engineers (Technical Assistants) and
(ii) prevented the profit earnings by way of not handing over the free site for execution. In the above context, the plaintiff has just mentioned certain claims only without furnishing the necessary supporting details to substantiate their claims.
127. Further, the plaintiff, in his letter dated 04.04.2009/Ex.P-4, claimed that machineries are idling and also stated that free site is not handed over, he further Page No.111/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) claimed that he carried out the work upto DBM between Km. 0/770 to Km 1/530 and further work is in progress. Thus, the plaintiff has executed upto DBM for a length of 760 meter only for a period of six months, which is very much less than the rate of progress as mentioned in the agreement.
128. The plaintiff's men and machineries were not kept idle at site for want of working area, no proof is filed, instead, the site had been handed over to the plaintiff on 29.09.2008 itself and P.W.1 admitted the same in his evidence. Moreover, the plaintiff's statements are false, which can be witnessed on a perusal of the measurements recorded for the work done up to page 28/M Book 155, which is marked as Exs.D-1 and D2, the date of commencement is only 04.11.2008. There is no question of idling the men and machineries at the site. Because of the plaintiff's lethargic attitude and inability in properly organising the men and machineries, material, the plaintiff (contractor) would have kept idling the machineries. The plaintiff's slackness, the Department may not be held responsible.
129. Further, there was no discussion held with the plaintiff by the CMDP Engineers (defendant-Engineers) about the Metro Rail Project slated to come in the minor bridge at Km 1/10. The contention of the plaintiff with regard to the above discussion, is not at all true. There is no discussion held with the plaintiff by the defendant-Engineers with regard to the shifting of alignment at Km 1/10. Hence, the delay in completion of the above work is solely attributable by the plaintiff only and hence, the plaintiff is not eligible for any compensation and the relevant documents are marked as Ex.P-11, dated 18.10.2010.
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130. The plaintiff has not completed the work on 15.02.2011 as alleged, instead, the plaintiff has completed the work in the available ROW only on 18.03.2011 as agreed by the plaintiff in his letter dated 07.05.2011. Accordingly, the final bill was paid to the plaintiff by the defendant on 30.03.2011 / Ex.D-9 and the plaintiff as P.W.1 admitted the same in the evidence. Further, the plaintiff has received the payment Ex.D-9 equivalent to Ex.P-15 as 'under protest' and has not stated as to why he had received the payment under protest and so, the plaintiff has pre-planned everything for building up a case. The plaintiff has been paid for the work he had done and there is no balance. The plaintiff has admitted in the evidence with regard to the above protest. For all the above reasons, the defendants pray to dismiss the suit in C.S.No.818 of 2012.
131. Learned counsel for the plaintiff in C.S.No.576 of 2014 contended as under:
The defendants called for tenders on 11.04.2008 for the work of widening from single lane to two lane and strengthening of Sholavaram-Orakkadu-Arumanthia- Perumullaivoyal Road K.M. 0/0 - 10/0 by the Chief Engineer (H), Metro, Alandur, Chennai-600 016. The plaintiff's tender was accepted, vide letter dated 14.08.2008 (Ex.P-1). The contract value awarded was to the tune of Rs.9,50,12,505/- (Rs.903.13 lakhs). The technical value of revised estimate was Rs.1064 lakhs (Ex.D-18, admitted by D.W.1. A formal agreement was executed between the parties on 19.09.2008. The period of completion of the tendered work was fixed as 15 months from 19.09.2009.
The targeted date of completion was 18.12.2009 (15 month). The work was foreclosed by the first defendant on 23.01.2012 (Ex.P-33). The process of widening of the road is on both sides (road worth-Rs.587.18 lakhs) . Construction of side drain work is Page No.113/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Rs.273.83 lakhs. Construction of cross drainage works (Rs.89.12 lakhs) and the total project completion is Rs.950.13 lakhs. The tendered work could not be completed in its entirety for want of free site for execution. The plaintiff faced innumerable hurdles from the date of commencement of work on 19.09.2008. The plaintiff had no control over the hurdles, as the road-site in many places, were encroached, and in some places there were permanent structures including a Temple. By the following letters, the plaintiff requested to hand-over free site:
Sl.No. Date Exhibit No.
1 19.01.2009 P-5
2 04.04.2009 P-6
3 22.05.2009 P-7
4 10.08.2009 P-8
5 04.09.2009 P-10
6 12.10.2009 P-11
7 17.11.2009 P-13
8 23.12.2009 P-15
9 24.05.2010 P-16
10 01.11.2010 P-17
11 30.11,.2010 P-19
12 02.12.2010 P-20
13 28.02.2011 P-21
14 07.06.2011 P-23
132. However, the defendants were not in a position to acquire the lands for execution even after lapse of 26 months from the targeted date fixed for completion. Upon realising their inability to handover free site, the defendants foreclosed the Page No.114/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) contract through their proceedings, dated 23.01.2012 (Ex.P-33). At the time of foreclosure, an extent of 72.85% of work only could be completed in the available free site. An extent of 27.15% of tendered work was unavailable at the site for execution. The value of work unavailable is Rs.2,57,95,895/-. The plaintiff was deprived from executing the said 27.15% value of work of the tendered quantity for no fault of his, resulting in loss of profit and over-heads on the unavailable portion of the work which is 27.15%. The plaintiff relies on the relevant provisions in the agreement governing such increase or decrease as mentioned in the preliminary specifications to standard specification to roads and bridges and PS to SSRB 105.05. The agreement provides for variation of quantities (plus or minus) increase or decrease of 25% only. Admittedly, in the plaintiff's case, the reduction is 27.15% which is not permissible, as the same is above 25%. The defendants, having deprived 27.15% of the tendered work, are liable to compensate the plaintiff for loss of profit and over-heads on the deprived quantity of work.
133. The inability of the defendants to provide obstruction free site is breach. The reduction in quantity of tendered work by 27.15% is a breach. The following claims arise a direction consequence of the Breach committed by the defendants.
Claim No.1 : Request payment for the machineries kept idle at the site for want of free site execution of work based on the mile-stone stipulated. (Claim amount :
Rs.33,48,574/-.
Claim No.2 : Request payment of Rs.18,55,531/- excess bitumen utilised in the DBM & SDBC items of work executed as per job mix formula approved by Director HRS. Page No.115/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Claim No.3 : Request payment of Rs.2,19,33,369/- as price variation as per price variation clause available in the agreement.
Claim No.4 : Request payment of interest at the rate of 18% per annum for the amount of Rs.28,00,000/- and Rs.5,80,000/- illegally recovered as price adjustment from fifth and Part Bill and sixth and Part Bill respectively. (Claim amount:
Rs.11,51,793/-).
Claim No.5: Request to make payment of Rs.25,000/- recovered as fine for no fault of the plaintiff.
Claim No.6: Request to refund an amount of Rs.11,90,127/- levied as liquidated damages against the terms and conditions of contract and recovered by the second defendant/Divisional Engineer (H) CMDP-DN.2 - illegally.
Claim No.7 : Request payment for the loss suffered by way of prevention of profit earnings due to foreclosure of contract. (Claim amount: Rs.24,13,162/-).
Claim No.8: Request payment for the loss of profit and over-heads suffered by the plaintiff due to prolongation of contract for no fault of the plaintiff (Claim Amount : Rs.2,37,72,358/-).
Total claim amount (8 heads) : Rs.5,56,89,914/-
Interest @ 18% p.a. between 29.03.2012 to 14.08.2014 for the claim amount: Rs.2,46,34,777/-. Total : Rs.8,03,24,691/-.
134. The defendants have admitted their inability to provide free site, and therefore, have foreclosed the contract, 26 months after the scheduled date of Page No.116/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) completion as per Ex.P-33, dated 23.01.2012. In Ex.D-18 completion certificate, it is clearly mentioned in the remarks column that "drain constructed for 850m, only out of 6,300m due to non-availability of land and shifting of water lines" and "out of 22 nos. of culverts 17 Nos. completed, 5 Nos. not completed due to non-availability of land", respectively. The defendant, in Ex.P-35, dated 25.01.2012, have recommended to refund 75% of the penalty imposed due to their inability to provide free site which ultimately delayed the work. The defendants have admitted in Exs.P-33 and P-35. Therefore, the defendants have committed "breach" of agreement in failing to provide free-site.
135. The plaintiff's men, machineries, office and site over-heads were kept idle for the said period. The idle over-heads incurred by the defendants have to be compensated by the defendants. The defendants changed the item of work from DBM (Dense Bitumenous Macadam) to Semi Dense Bituminous Carpet, incurring additional Bitumen content, since the job mix formula directed to be done consumed additional bitumen than the one specified in the Bill of Quantity (BOQ).
136. The contract was foreclosed, as admitted by the defendants also, due to their inability to provide free site. Unmindful of the fact that they were not able to provide free site, the defendants have imposed liquidated damages and have deducted the same from the part-bills. A total sum of Rs.11,90,127/- had been deducted by the defendants from the running bills for no fault of the plaintiff. Besides, there was no prior notice about the proposed levy of liquidated damages and the recovery was not in accordance with the preliminary specifications P.S.109/05 of PS to SSRB. Page No.117/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
137. The plaintiffs through their letters dated 07.06.2011 (Ex.P-24), 05.07.2011 (Ex.P-25) and 24.01.2012 (Ex.P-34) requested the defendants to reverse the levy of illegal deduction of alleged liquidated damages. The defendant/Divisional Engineer recommended the release of the said amounts of Rs.11,90,127/-, as the same was not on account of any default on the part of the plaintiff. The first defendant, through proceedings dated 25.01.2012 (Ex.P-35) ordered refund of 75% of liquidated damages, which were illegally deducted from the part bills. However, despite orders to release, the said amounts have not been paid to the plaintiff. The defendants are retaining liquidated damages illegally recovered, which was ordered to be refunded by the first defendant, vide proceedings, dated 25.01.2012 (Ex.P-35).
138. In the course of execution of the above said tendered work, the escalation and price variation of the input materials, viz., cement, steel, bitumen, blue-metal, POL and labour ought to have been granted to the plaintiff. The plaintiff is entitled to receive a sum of Rs.2,01,36,128/- for the works executed by him under price variation for the works executed by the plaintiffs, as per the terms of the above said Government Orders. The mis-application of the above said Government Orders, had resulted in recovery of Rs.17,97,241/-, instead of actual payment of Rs.2,01,36,128/- which the plaintiff is justly entitled to receive. Hence, the plaintiff is entitled to price adjustment for the executed work as per the said G.Os. in a sum of Rs.2,01,36,,128/-.
139. The manner in which escalation was applied to running bills by the Divisional Engineer / second defendant is completely contrary to the scope, ambit and purport of G.O.Ms.No.60 / Public works / G2 Department, dated 14.03.2003 and Page No.118/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) G.O.Ms.No.101, Public Works G2 Department, dated 10.06.2009. In this connection, the Chief Engineer (Buildings), PWD, Chennai-600 005, by letter dated 19.01.2011 (Ex.P-48) had issued clarification on the manner of application of price adjustments, as directed in the said two G.Os. In the said letter, the Chief Engineer had directed that the price adjustments shall be calculated only on the "departmental estimated cost of the work", the cost which are technically sanctioned by the designated authority. For the purpose of price adjustments, the rates prevailing at the time of acceptance of tender, shall not be criteria. For the purpose of price adjustment, it is only the departmental estimated cost of the work technically sanctioned by the authorities had to be applied. Therefore, for the purpose of price adjustment as per the above referred two G.Os. (Ex.P-37) and the clarification made by C.E. PWD (Ex.P.48) clearly establishes that the Departmental estimated cost of the work would be the criteria for application of price variation to the contract work. Hence, the plaintiff is entitled to receive the sum of Rs.2,01,36,128/- towards price variation on the value of the works executed.
140. The price of input materials, particularly POL had been always on the upswing. The Department estimates for the present tendered work, were prepared in the year 2005-06. However, the tender was floated in the year 2008 and the plaintiff's tender was accepted on 14.08.2008. Therefore, the estimated cost of work which was technically sanctioned for the present work, were the departmental estimated cost worked out for the year 2005-06. The price variation of critical inputs of raw materials, vz., cement, steel, bitumen, metal, POL (petrol, oil and lubricants) and labour charges should be added and paid to the contractor, as per G.O.(Ms).No.60, Public Works (G2) Page No.119/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Department, dated 14.03.2008 and G.O.Ms.No.101, Public Works (G2), dated 10.06.2009. As per the said G.Os., the price adjustment shall be calculated on the estimated cost of the work. The estimate for the present contract was prepared in the year 2004-05. The Divisional Engineer/second defendant, without understanding the scope and purport of the above said G.Os., and in complete violation of the same, had deducted a sum of Rs.28 lakhs in the five Part Bills and a sum of Rs.5.80 lakhs in the 6th and part bill. Totally, a sum of Rs.33.80 lakhs has been illegally deducted by mis- applying the referred G.Os. It is an admitted fact that price variation for bitumen and POL shall be granted on pass-through-basis. The defendants are legally bound to apply the guidelines specified under the said G.Os. and grant price variation of Rs.2,19,33,369/- to the plaintiff.
141. At the time of sanctioning of part bills for the completed works, there shall be three different rates that the officials would be confronted with, i.e (a) departmental estimated cost of the work which are technically sanctioned for the purpose of floating tender (2005-06); rates that prevail at the time of acceptance of the tender (2008-09); rates that prevail on the date of execution of the work (actual bill date). Further, in order to compensate the contractor/plaintiff, and to have uniformity of application of price adjustment, the said G.Os., in G.O.Ms.No.101 and G.O.Ms.No.60, are issued, guiding the application of price adjustment in the sanctioning the running bills.
142. The second defendant/Divisional Engineer had mis-applied the price adjustment clause while sanctioning the bills of the plaintiff. The price adjustment as directed in the said two G.Os. ought to have been made applicable to the plaintiff's Page No.120/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) case. However, the second defendant, in utter disregard to the directives issued in the said two G.Os., and also in complete disregard to the Chief Engineer's clarification letter, dated 19.01.2011 (Ex.P-48), failed to grant the price adjustment that the plaintiff is justly and legally entitled to. In all, the plaintiff has marked 48 documents in support of his claims, and therefore, the defendants cannot deny their liability arising out of the foreclosed contract.
143. Learned counsel for the defendants in C.S.No.576 of 2014, contended as under:
(a) The suit is filed for damages at Rs.5,56,89,914/- together with interest. The plaintiff was examined as P.W.1 and Exs.P-1 to P-47 were marked. On the side of the defendants, the second defendant was examined as D.W.1. and Exs.D1 to D-23 were marked.
(b) The plaintiff was entrusted with the work of widening of roads from single lane to two lanes and strengthening of Cholavaram-Orakalu-Arumanthai-Perumullavoyal Road, KM 0/0 - 10/0. The administrative sanction for the said work is Rs.700 lakhs. The estimate was prepared and sanctioned for Rs.582 lakhs. The work was entrusted to the plaintiff for 85% over and above the estimated rate, vide dated 19.09.2008 for Rs.950.13 lakhs Ex.P-2. As per the admission in the plaint, the following had to be noted:
(i) Date of acceptance of agreement : 19.09.2008
(ii) Date of commencement of work : 19.09.2008
(iii) Period of contract fixed for completion: 15 months Page No.121/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
(iv) Targeted date of completion : 18.12.2009, and
(v) Foreclosure of contract order on : 23.01.2012.
He further contended that the prolongation of contract period two years one month and 5 days. The plaintiff has not completed the work within the time and hence, the claim in the plaint is liable to be rejected. The period fixed for completion of work is 15 months. Time is essence of the agreement as per Ex.P-2.
144. The learned counsel also submitted that the contract was ordered to be foreclosed by the first defendant on 23.01.2012, even after lapse of 26 months of the contract, vide defendants' Letter No.1343/2011/JDO, dated 23.01.2012, stating that, for want of free site execution, based on the recommendation of the second defendant. The plaintiff asserted in the plaint that the first defendant had ordered for foreclosure of the contract on 23.01.2012, vide memo No.1343/2011/JDO. The plaintiff's claim solely proceeds on the basis that the contract has been foreclosed by the defendants. Further, the plaintiff has suppressed the facts regarding foreclosure. To bring out the truth regarding foreclosure, the plaintiff is confronted with letter, dated 18.01.2012 Ex.D-1. There is no reference in the plaint about Ex.D-1, dated 18.01.2012. The plaintiff conveniently suppresses the fact that the contract was foreclosed on the basis of the plaintiff's request. Since the plaintiff is aware of the fact that he has foreclosed the contract and so, he is not eligible for any damages, so, the plaintiff suppressed the facts and claims damages as if the defendant themselves foreclosed the contract without any reference by the plaintiff. Subsequently, in the cross-examination on 27.09.2021, the plaintiff (P.W.1) had stated regarding the contract foreclosure and to refund the Page No.122/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) amount. Ultimately, the contract was foreclosed at the request of the plaintiff as per Ex.P-33. Thus, it is crystal clear that it is the plaintiff who has sought for foreclosure. Moreover, the plaintiff is aware that he only sought for foreclosure of the contract as per Ex.D-1 knowing fully well that since the plaintiff has rescinded the contract and hence, he could not claim damages, which according to the defendants, the plaintiff has deliberately suppressed that he has foreclosed the contract. The plaintiff admits that he has received the amount due for the work completed by him.
145. It is further contended that the plaintiff has ratified the contract by commencing the work completed 72.85% work. After completing 72.85% of the work involved in the contract, it is not open for the plaintiff to foreclose the contract. In case of voidable contract, the plaintiff has alternatives open to him, firstly to avoid the contract at the first instance and secondly, to affirm the same. if the plaintiff opts for the alternative and prefers to avoid the contract, the contract becomes void and thereafter unenforceable. On the other hand, if he opts to affirm the contract, the same becomes binding on him and his right to avoid the contract comes to an end.
146. Further, Section 19 of the Indian Contract Act enables a party to the contract, whose consent had been obtained by fraud or mis-representation, to avoid the contract. There is no such defence that the contract has been obtained by fraud. So, the question of using Section 19 will not arise. The contract is also not a voidable contract, more so, because the plaintiff has received the entire amount for the work he has done and hence, the suit itself is not maintainable on this sole ground that the suit may be dismissed.
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147. Further, as per Section 39 of the Indian Contract Act, when a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified by words or conduct and his acquaintance in its continuance. The plaintiff wanted to foreclosure after completing 72.85% of the work and on the other hand, the claim of the plaintiff for damages, will not arise, since the claims contained the plaint are pursuant to the act of foreclosure alleged to have been made by the defendants. The defendants have established that the foreclosure is made on the request of the plaintiff as per Ex.D-1. The question of damages will not arise and the defendants are entitled to claim liquidated damages. The defendants exercised their provisions under Clause 1(b) of the contract, Ex.P-2. Since the plaintiff has suppressed the fact that he sought foreclosure as per Ex.D-1, the suit may be dismissed in-limine.
148. Learned counsel for the defendants relied on Clause 103.03 of the Tamil Nadu Highways Manual and stated that the bidder is required to examine carefully the site of the work, source of materials, plans, specifications, special provision and the contract, forms for the contract (Ex.P-2). As per the above clause, it is construed that the bidder has investigated the site condition and participated in the bid and subsequently entered into agreement. Further, the question regarding the land acquisition assumes importance to show that the plaintiff is falsely claiming that free site is not available. The plaintiff has entered into the contract after inspecting the site condition and so, his allegation that free site is not given, is made to cover up the delay. As per Ex.D-3, the plaintiff has written Ex.P-3 on 06.10.2008 and according to the Page No.124/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) learned counsel, there is no reference about free site or land acquisition proceedings pending in Ex.P-3. Further, as per Ex.P-4, dated 20.10.2008, there is no reference to free site or land acquisition or other defects as claimed in the plaint. In Ex.P-5 alone, dated 19.01.2009, the plaintiff had come up with a different story, when the plaintiff is not able to achieve the time line set in the contract Ex.P-2. In Ex.P-2, clause 4 stated that the time is the essence of the agreement and the rate of progress is set, as per which, in the first quarter, preliminary and 20% of the work should have been completed on the date of Ex.P-5, dated 19.01.2009 and that the target is not achieved. As per Ex.D-5, dated 15.09.2009, the site was handed over on 19.09.2008 and the plaintiff has completed only 23% of the work, as on 15.09.2009. Thus, it is unambiguously clear that only to cover up the delay, the plaintiff is taking up the defence of site condition.
149. The plaintiff cannot take up the defence of site condition, as it can be demonstrated that the defence is deliberately made to cover up the delay. As per Ex.P- 5, km.3/0 - 4/0 speaks of the width of the road, E.B. lamp post and telephone post, width of the road, built up area, agricultural land, E.B. lamp post, telephone post, etc. If the road width is not available, acquisition is required and how the plaintiff is able to complete the work here, speaks about hindrance of a Temple in between 5/0 - 6/0. In evidence, it is admitted that there is no land acquisition and so, it is clear that the claim of hindrance, land acquisition, free site, etc., are made in order to cover up the delay in execution of the work.
150. In Ex.P-7, dated 22.05.2009, the plaintiff speaks about profile correction for Page No.125/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) which, a separate contract is entered into and even that the work the plaintiff is not able to do it in time. In the written statement, the defendants stated that, " ..... a revised estimate was prepared for improving the damages stretches, i.e. KM 0/0 - 3/0, KM - 4/2 - 4/6, KM 6/8 - 7/0 and KM 9/0 - 10/0, which was not done during the contract period for want of revised administrative sanction, i.e., for value of work Rs.1,43,25,370/- and approval obtained from the Government on 20.09.2010 for revised administrative sanction of Rs.1064.20 lakhs. As per the revised mile stone, this balance works for the value of Rs.1,43,25,370/- should be completed in 3 months, (i.e.) on or before 19.12.2010. However, the contractor has not completed the value of work for Rs.43,80,131/- till 19.12.2010. And he has taken 10 months to complete this work (i.e.) upto 19.07.2011, that is, after a delay of 7 months."
151. The learned counsel relies on Ex.D-17 to substantiate regarding the liquidated damages between the parties. So, it is clear that the plaintiff is making allegations contrary to the records and in order to cover up the delay. The same allegations are made in Ex.P-8 and Ex.P-10. As per Ex.P-3 and Ex.P-10, the plaintiff seeks switch over to WMM, instead of WBM, which is sanctioned and the plaintiff executed the work accordingly. As per Ex.D-18, WBM replaced with WMM by passing an order and also at the same Ex.P-18, and payments were accordingly made. As per Clause 105.05 therein, the defendants' right is reserved at any time during which the contract is in force to make any alterations in the work, that may in the opinion of the Engineer be necessary and for that purpose, he shall have power to order that contractor to do and the contractor shall do any of the following: Page No.126/170
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(i) increase or decrease in quantities of any items of work;
(ii) on omit any portions of work;
(iii) to damage the specification for any items of work;
(iv) A change the lines, levels, positions and dimensions of any part of the work;
(v) execute additional work necessary for the completion of the work;
(vi) alterations in the plans..
The same power to alter by way of addition or deduction is found in the contract Ex.P-2.
152. The plaintiff has sought for the claims under the following heads:
Claim No.1 Damages for getting the machineries idle at the site for want of free site for execution of the work. Under Claim No.1, the amount claimed is Rs.33,48,574/-.
Claim No.2 For excess bitumen utilised in the DBM and SDBC items of work executed as per the job mix formula approved. Amount claimed is Rs.18,55,531/-.
Claim No.3 Price variation: As per price variation, clause available in the agreement. Amount claimed Rs.2,19,33,369/-.
Claim No.4 Interest @ 18% per annum for the amount of Rs.2,85,080 lakhs illegally recovered as price adjustment from 5th part and 6th part of the bill.
Claim No.5 To make payment of a sum of Rs.25,000/- recovered as fine. Claim No.6 To refund a sum of Rs.11,90,127/- recovered as liquidated damages.
Claim No.7 For the loss suffered for prevention of work, the amount claimed is Page No.127/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Rs.24,13,162/- .
Claim No.8 For the loss of profit and over-heads made by the plaintiff due to prolongation of the contract. The amount claimed is Rs.2,37,72,358/-.
The total sum claimed as damages is Rs.5,56,89,914/-.
153. Claim No.1 : Idle machinery:
Under this claim, the plaintiff claims that he has not been given free site to execute the work and hence, he kept all his machineries idle and for keeping the machineries idle, the plaintiff has claimed damages. To prove the same, the plaintiff has not produced any documents to show that he has specific number of machineries that were kept idle. The plaintiff must have produced the number of vehicles, the names of the drivers and other staff who are managing the vehicles. None of the above documents have been filed.
154. Further, according to the learned counsel for the defendants in C.S.No.576 of 2014, the pleadings also do not contain particulars of machineries that were kept idle. The claim is vague. No documents or evidence are produced to show that machineries were kept idle and hence, the plaintiff is not entitled for the claim. P.W.1, in his evidence, was not ever given the exact number of vehicles owned by him.
155. Further, the plaintiff claims himself as Class-1 contractor and he admitted in his evidence that he was the owner and number of the contract he was doing at the relevant point of time and so, it is highly improbable that he kept his machineries idle. The plaintiff has also filed C.S.Nos.817 of 2012 and 818 of 2012 before this Court. It is a Page No.128/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) proof that the plaintiff is having other works and it is highly improbable that the machineries were kept idle for the same contract period. Evidence of log book maintained, salary given to the drivers, name of the drivers and number of machineries are not pleaded and proved by the plaintiff. It is not clear as to how the claim amount is spent, the details are missing and no break-up is given and therefore, the claim is not proved by the plaintiff and the burden is on the plaintiff to prove the same. As the plaintiff had not discharged the burden, this claim is liable to be rejected.
156. Claim No.2: There was excess use of bitumen. The plaintiff had not proved the excess use of bitumen. On the basis of abstract formula, the claim is worked out and the plaintiff claims it as damages. There is no bill produced for the purchase of bitumen. No proof is filed for the quantity of bitumen used in the project. There is no proof for the actual purchase and usage of bitumen. A worksheet on the basis of formula is pleaded and no proof is filed. Further, in view of Ex.P-2 commercial condition Clause 13, the plaintiff cannot claim for the use of excess use of bitumen. The use of bitumen as per the contract is to be based on job mix formula. The contractor has to get a random quality control test to be done. The same has been marked as Ex.D-9, dated 23.04.2010. As per Ex.D-9, dated 23.04.2010 and Ex.D-13, dated 16.06.2010, the bitumen is used lesser than what is prescribed as per job mix formula and in the column Binder, as per job mix formula, what is required is 5.15, but the test result reveals that 4.85, even though within limit, since the plaintiff claims excess use, it is to be seen that there is no excess use. If it is excess, it should be more than 5.15. As per Ex.P-2 page 161, Clause 5, heading "adjustment in the cost of bitumen". If there is any Page No.129/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) price variation, the price adjustment shall be calculated on pass through basis, with payment of actual areas, at the rates charged by the Indian Oil Corporation. No bill is produced for the purchase of Bitumen on pass-through basis. Only, proof of purchase alone will be prove as to whether there is excessive Bitumen or not. Hence, the claim that the plaintiff had used excessive Bitumen, is not correct and the claim under Claim- II is liable to be rejected. Further, the claim of the plaintiff as per MORTH formula, the minimum usage of Bitumen is fixed at 4.5, but he claims that he has used more than that prescribed which is factually incorrect, because the MORTH formula fixes the minimum usage of Bitumen and the usage of Bitumen depends upon the quality, shape and size of the metal used by the contractor and also depends upon the place where it is used. Ex.D-9 and Ex.D-13 reveals this fact. Moreover, as per Clause 11.3 of Ex.P-2, the quoted rate shall be inclusive of cost of Bitumen, Bitumen emulsion, conveyance and handing charges and other requisites as contained in Clause 103.04 of P.S. to S.S.R.B. This clause makes it clear that the plaintiff cannot sustain Claim No.2. The Claim No.2 amounts to double payment. Hence, for the above reasons, Claim No.2 may be rejected.
157. Claim No.3: Price variation : As per Ex.P-2 under the heading "Price Variation", clause 1(c) therein, the price variation cannot be claimed for any work which was executed beyond the agreement period. The same is found in G.O.No.60 and G.O.No.101. Further, in Ex.P-31, it is clear that, since time extension was given up to 31.12.2011, the price variation will be decided as per G.O.No.60, which prohibits claiming of price variation, if contract is extended. So, the plaintiff cannot claim price Page No.130/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) variation. Further, price variation is to be calculated once in a quarter in respect of all the components, i.e. materials used for the construction of the road based on the formula, i.e. price that was existing on the last date of submission of the Bid and up to the end of the agreement period, provided the agreement is signed within a specified time. The variation is based on the wholesale price index issued by the R.B.I. The plaintiff seeks price variation from the period of estimate 2005-06 and 2008-09, which cannot be done due to the tender excess of 85% above the 2005-06 rate and 4.93% for the year 2008-09 rate. In this context, the cross-examination of P.W.1 is proved. But the plaintiff had claimed price variation from the date of preparation of estimate which is against the principles of escalation and the provisions of Ex.P-2. If calculation of the plaintiff is to be accepted, the plaintiff will be receiving double payment. Already 85% had been increased taking into account, the price variation by claiming once again the amount of price variation, which amounts to double claim and the plaintiff wanted to unduly enrich himself.
158. Further, the price variation shall be calculated only on the departmental estimated cost of work as per G.O.No.60 and 101. The price variation shall be applicable to the works with a period of more than 12 months, which has been subsequently modified in G.O.Ms.No.101 and the period extended to one year. The date of operation of the price variation clause is as per the date of commencement of work, i.e. from 19.09.2008. The plaintiff has a different claim in respect of price variation. The plaintiff claims variation from the date of estimate which is of the year 2005-06. The relevant Clause is in Ex.P-2 is Clause 1(a) on the above aspect. Moreover, as per the admission Page No.131/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) of the plaintiff and as per Ex.D-3, the date of commencement of the work is 19.09.2008.
159. The calculation of price variation at Rs.2,01,36,128/- is without any basis. The details as to how this amount is arrived at, has not been produced with evidence. The Department is the author to calculate and they have calculated the price variation as per the RBI Index, which has come to the tune of Rs.15,88,759/- and the same was adjusted in the Bill and so, the plaintiff cannot claim towards this head.
160. According to the learned counsel for the defendants, the plaintiff has wrongly been using the formula in claiming the price variation. The plaintiff had confused the estimate cost of work and the index to be adopted in arriving at the price variation. The plaintiff is using the formula for calculating the price variation from the date in which the estimate was made. But, the estimate has to be taken on the operative date, i.e. the date on which the work is going on. In this case, the estimate was of the year 2005. The plaintiff is taking for calculations from the year 2005, which is incorrect. The price variation will come into force on the operative date in which the work is going on, as per Ex.D-3 and plaint admission the date of Ex.P-2 and the commencement of work is 19.09.2009. The price variation is adjusted as per the final bill Ex.D-18. Hence, this Court may reject this claim.
161. Claim No.4 : Payment of interest and price adjustment:
The claim as per the plaint is that the second defendant has not followed G.O.Ms.No.60, Public Works (G2) Department, dated 14.08.2008 and G.O.Ms.No.101, Public Works (G2) Department, dated 10.06.2009, for which, no proof is filed. The claim Page No.132/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) is settled fully as per the above G.O. As per Ex.P-2, the agreement price variation is to be calculated based on the evidence adduced on the side of the plaintiff.
162. Claim No.5: In continuance of price variation in different field under the Claim No.5, the adjustment in the cost of Bitumen will have to be looked into. Further, Clauses 9 to 13 of Ex.P-2 have also to be considered. As per the above terms, the price variation is the adjustment of increase or decrease in price. No price escalation can be claimed if extension of time is granted. The plaintiff sought for extension of time on more than one occasion. As per Ex.P-17, the plaintiff seeks for extension of time. Likewise, as per Ex.P-26, the plaintiff sought for extension of time and time was extended as per Ex.P-27. As per the terms of Ex.P-2, the plaintiff is not entitled for price variation or interest in the price adjustment. Further, the price was adjusted during the relevant period, i.e. the date of commencement of the work and the price of the materials have come down and hence, the price was adjusted as per the provisions contained in Ex.P-2 and completion of the work from the overall final variation was arrived at Rs.17,97,241/- on the negative side and the same was adjusted in the final bill. As per the agreement Ex.P-2, no amount is due. The plaintiff has claimed Rs.2,01,36,128/-, which is not substantiated by any evidence, and since the Claim No.3 itself is not proved, the claim for interest under Claim No.4, also fails. The plaintiff cannot claim any interest as per the terms of Ex.P-2. As per Clause 110.02 of PS to SSRB, all interim payments made to the contractor (plaintiff) shall be treated as advances in respect of the lump-sum contract and hence, on payment of final bill only, he shall be deemed to be due to the contractor and so, the plaintiff is estopped from Page No.133/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) claiming interest as per the contract Ex.P-2. From the evidence of P.W.1, it is to be noted that the plaintiff himself admitted that he had claimed interest for the amount deducted, wrongly.
163. As per Ex.D-18, the Bill is settled and the plaintiff had also admitted the same. The plaintiff admits that the final Bill is settled and completion certificate issued and hence, the payment of interest on price variation will not arise. From Ex.P-36, it is clear that if the price is increased, the plaintiff is entitled for varied amount and if there is decreased price, the amount will be recovered from the Bill. During the relevant period, there is decrease in price and hence, the amount is adjusted from the Bill and hence, the claim as made in the plaint that a sum of Rs.33.80 lakhs, had been returned to the plaintiff on 29.03.2012 along with 13th and final bill, on duly realising the wrong calculation made earlier, which is not correct, as no amount is returned to the plaintiff. The plaintiff has not filed any evidence to show that a sum of Rs.33.80 lakhs is returned to the plaintiff. Further, in the plaint, the plaintiff stated that he has worked out the price variation and enclosed the same along with Ex.P-36, but Ex.P-36 actually did not contain any enclosure. In the cross-examination, P.W.1 (plaintiff) proves the same that he had made no enclosures, as is evidence from his answer in cross. From all the above evidence , it is to be seen that the plaintiff is speculating and the claims are not based on record and so, the claim is liable to be rejected. The annexure relied on by the plaintiff's counsel, is not part of evidence and the same may be rejected.
164. Claim No.5 Request to refund a sum of Rs.25,000/- recovered as fine. Page No.134/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) The plaintiff seeks recovery of Rs.25,000/- which is a fine amount imposed as per Ex.P-2 for slow progress of work. The categorical stand of the defendant that the fine is not recovered from the plaintiff and hence, this claim is not maintainable. As per Ex.D-5, the fine was levied, but not recovered. The final bill Ex.D-18 shows that the sum of Rs.25,000/- is not recovered. While P.W.1 (plaintiff) himself was in the witness box, deposed that the amount was not deducted and that the records are maintained by the Department for deduction. Since the amount was not deducted, the plaintiff is falsely claiming that the document is with the Department, and this was denied by P.W.1 during his examination in the box.
165. Claim No.6 : Refund of liquidated damages: As per Ex.P-2 Clause 13 under the heading price variation, the defendant has got power to levy liquidated damages. Before claiming liquidated damages, the plaintiff has been issued with notice about slow progress of work. Further, liquidated damages is claimed by the defendant as per Ex.D-12. The plaintiff has been asked to speed up the work. As per Ex.D-14, Rs.5,000/- was levied as fine and the time has been extended twice to speed up the work, but has not complied with the same. Further, as per Ex.D-11, Rule 105.03 of the SSRB Rules, it was informed to the plaintiff that there is slow progress of work and the plaintiff was warned to fast track the work in the interest of public, otherwise, action will be initiated under Rules 109.05, 109.5(a), 109.07, 105.18 and 108.18 of SSRB Rules. As per Ex.D- 12, dated 03.06.2010, it was stated that, "Hence, I request you please to take earnest efforts to complete the works, as already informed, without any further delay." A Page No.135/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) similar exercise as per Ex.D-14 was sent to the plaintiff stating that a fine of Rs.5,000/- per day will be levied if the works are not commenced. The excuses given by the plaintiff is negatived in Ex.D-12. Further, Ex.D-16 makes it clear that as per Ex.P-2, the price variation clause, the Engineer is empowered to levy liquidated damages upto 5% of the contract value for the delay beyond the contract period. Further, Ex.D-16 also makes it clear that there is absolutely no progress of work from March 2021 till date of Ex.D-16, i.e. 10.06.2011. Moreover, Ex.D-17 contents show that liquidated damages to the tune of Rs.11,90,127/- was levied and Ex.D-17 explains as to how the amount was arrived at.
166. Learned counsel for the defendants in C.S.No.576 of 2012, further contended that the road work, drainage work and cross drainage work to the value of Rs.5,51,47,059 could have been executed in the encumbrance free site at the time of handing over of work site, i.e., inception time itself on 19.09.2008. The contract value of Rs.9,50,12,505/- had to be completed in all aspects of the contract period of 15 months as per the mile-stone given in the agreement, i.e. up to 18.12.2009, the corresponding period for the value of work, Rs.5,51,47,059/- is nine months, i.e. as per the mile-stone, the contractor (plaintiff-P.W.1) should have completed Rs.5,51,47,059/- in nine months. Further, in nine months, the contractor had completed the value of work at Rs.2,12,06,334/- only, i.e upto 24.06.2009 and completed the balance value of work for Rs.5,51,47,059/- in 21 months, i.e. upto 16.06.2010. The liquidated damages to be imposed for this delay, i.e. 12 months, which is more than 10 months and 0.5% for every month and 5% for 10 months, is Rs.27,57,350/-, but however, the Divisional Page No.136/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Engineer (H), CMDP-2 had imposed the liquidated damages only for Rs.1,97,106/- as on 24.09.2010. Further, a revised estimate was prepared for improving the damaged stretches, i.e. Km 0/0 - 3/0, Km 4/2 - 4/6, Km 6/8 - 7/0 and Km 9/0 - 10/0, which was not done during the contract period of revised administrative sanction, i.e. for value of work Rs.1,43,25,370/- and approval obtained from the Government on 20.09.2010 for revised administrative sanction of Rs.1064.20 lakhs. As per the revised mile-stone, this balance works for the value of Rs.1,43,25,370/-, however, the contractor has only completed the value of work for Rs.43,80,131/- till 1912.2010. He has taken 10 months to complete the work, i.e. upto 19.07.2011, i.e. after a delay of 7 months. The liquidity damages to be impose for this delay of 7 months to complete the work is Rs.5,36,382/- and the total liquidity damages to be imposed to contractor is Rs.32,93,732/-. However, the defendant's view the situation and weighed the same and considering the slow progress of work by the contractor, imposed Rs.11,90,127/- totally as liquidated damages. Even though the defendants levied a sum of Rs.32,93,732/- as liquidated damages, a licence view was taken and imposed Rs.11,90,127/-, as liquidated damages. The plaintiff is giving only excuses for the delay and inventing reasons for the delay, even though there is no cause for the delay. The reason attributed by the plaintiff against the defendants, are not in existent made without any basis. According to the defendants, for the above reasons, the defendants claim that they are correct in imposing liquidated damages and the plaintiff is not entitled for refund of the liquidated damages.
167. Claim No.7: Loss of profit:
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https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) The plaintiff is not entitled for such a claim, as the plaintiff failed to prove that during the relevant period, he would have made certain sum of money in another contract. In support of the same, the learned counsel for the defendants relied on the decisions of the Honourable Supreme Court, reported in 2023 Live Law (SC) 817 (Batliboi Environmental Engineers Limited Vs. Hindustan Petroleum Corporation Limited and another) and also as per S.L.P(Civil).No.8791 of 2020 (M/s.Unibros Vs. All India Radio), dated 19.10.2023.
168. Claim No.8 : The prolongation of the contract was only due to the fault of the plaintiff in not completing the work within the available width as per the fixed time frame contained in the agreement. As per Ex.P-2, time is the essence of the agreement Since there is no definite programme of works furnished by the plaintiff for progress of the work, the anticipation of profit is not quantified. Prolongation of contract period is purely due to the plaintiff's negligence and hence, the question of payment for the loss of profit, does not arise. Hence, based on the above submissions and reasons stated thereunder, this claim made by the plaintiff is not at all admissible, since they did not contain any authenticated documents. Further, it is not explained as to how the amount is arrived at. The plaintiff asked for extension of time as per Ex.P-26, which was given, but the plaintiff failed to execute the work within the extended period and so, the question of loss of profit will not arise. Seeking extension of time is a bar to claim the loss of profit.
169. As per the version of the plaintiff, relying on Ex.P-9, it is hereby claimed that the work is in active progress. As per Ex.D-18, being the final bill, it is stated that Page No.138/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) the total number of culvert is 22 Nos., out of which, the plaintiff had constructed 17 Nos., and received the bill for the same. It is further contended that if the site is not available, how the plaintiff is able to do so much of work. In Exs.D-5, D-6 and D-7, it is pointed out that the work goes on slow speed. These documents show that the plaintiff is at fault.
170. Heard both sides and perused the materials available on record.
171. The following common issues are framed by this Court in C.S.Nos.817 and 818 of 2012 on 17.12.2009:
(i) Whether the claims raised by the plaintiff are maintainable in view of the contractual clauses ?
(ii) Whether the defendant failed to handover the vacant site to the plaintiff for execution of the contract work ?
(iii) Whether the delay in executing the project is attributable to the defendant ?
(iv) Whether the plaintiff is entitled for any compensation ?
(v) Whether the plaintiff is entitled for the expenses incurred for providing technical assistants between 03.11.2008 to 03.06.2010 ?
(vi) Whether the plaintiff is entitled for Rs.80,48,848/- towards loss of overheads and profits ?
(vii) Whether the plaintiff can claim refund of fine and liquidated damages levied ?
(viii) Whether the plaintiff is entitled for any interest for the money claim ? Page No.139/170
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(ix) What other relief for the plaintiff is entitled ?
172. The following issues are framed by this Court on 27.11.2019 in C.S.No.576 of 2014:
(i) Have not the defendants failed to hand over free sites for execution of the contract work ?
(ii) Have not the defendants called for tenders for widening the road under the contract agreement, even before acquiring the lands required for widening the road ?
(iii) Have not the defendants committed breach of contract agreement ?
(iv) Have not the defendants admitted their inability to provide free site for execution, by foreclosing the contract through their communication dated 23.01.2012 ?
(v) Whether the delay in executing the project is attributable to the plaintiff ?
(vi) Whether the plaintiff is entitled for the reliefs as prayed for ?
173. Issue No.1 in C.S.576 of 2014: Have not the defendants failed to hand over free sites for execution of the contract work :
According to the defendants, the plaintiffs have not performed the contractual work in proper perspective and they have prepared the investment amount correctly and also the machineries. They could not proceed further and due to improper plan in the site, they could not complete the work within time, resulting in loss. According to Page No.140/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) the defendants, the site in question was immediately handed over after the procedural formalities in the contract. Therefore, in the tender, there is provision that even prior to the filing of the tender applications, the plaintiff was entitled and also permitted to inspect the site and after inspecting the site also, field visit was conducted and then only, the plaintiff had made application and participated in the tender process. Therefore, the contention of the plaintiffs are not acceptable and that the site was handed over without any defects therein. Therefore, the defendants have clearly stated that the site was handed over immediately. Further, the plaintiffs have not established that they have completed the work, even though the site was already handed over. The defendants have also forfeited the right in the contract. The first issue in C.S.No.576 of 2014 is answered accordingly.
174. Second Issue in C.S.No.576 of 2014: Have not the defendants called for tenders for widening the road under the contract agreement, even before acquiring the lands required for widening the road ?
According to the defendants, the contract/tender itself is only for widening the road. As per the contract agreement, earlier, the plaintiff was permitted to inspect the site and also the field inspection, and after conducting the field inspection only, the plaintiff had participated in the tender, and therefore, now the plaintiffs cannot take a stand with regard to the classification of the land. The second issue in C.S.No.576 of 2014 is answered accordingly.
175. Third issue in C.S.No.576 of 2014: Have not the defendants committed Page No.141/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) breach of contract agreement:
Nowhere, the plaintiff had established that the defendants had committed breach of contract. According to the defendants, even the communication between the parties clearly shows that the defendants had handed over the site much earlier and the plaintiff did not complete the work. This issue is answered accordingly.
176. Fourth issue in C.S.No.576 of 2014: Have not the defendants admitted their inability to provide free site for execution, by foreclosing the contract through their communication, dated 23.01.2012 ?
The contract was properly foreclosed at the proper stage and even as per the agreement, the defendants had handed over the site much earlier, to the plaintiff, but they did not complete the work in proper perspective. The foreclosure of the contract itself, was through the communication dated 23.01.2012 itself. This issue is answered accordingly.
177. Fifth issue in C.S.No.576 of 2014: Whether the delay in executing the project is attributable to the plaintiff:
As per the contract, the site was handed over on completion of agreement between the parties. Admittedly, the project was not completed as per the terms and conditions of the contract, therefore, the defendants have also foreclosed the contract. Since the contract is only for widening the road and before commencement of the tender, the contractor (plaintiff) was permitted to inspect the site and only after giving proper opportunity only, the tender was called for. At the time of signing the contract and only after inspecting the site, the parties have signed the contract. The Page No.142/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) communication between the parties, coupled with the view of the Engineers, shows that the site was immediately handed over on due inspection by the plaintiff. Since the plaintiff had not completed the widening of the road and he had only completed in less percentage of the work, and therefore, the defendants have foreclosed the contract by their communication dated 23.01.2012 itself. The suit came to be filed in the year 2014 and sought necessary relief in the plaint. It is the duty of the plaintiff to plead and prove that the defendants if at all had committed any breach of contract, and therefore, within the stipulated time, the contract was properly foreclosed. It is the foremost duty of the plaintiffs to prove that the defendants have not acted upon the contract. Therefore, in this case, the plaintiff had not established their pleadings and also whatever the work they have done, they were paid and therefore, in the above circumstances, the plaintiff is not entitled to get any relief, since they have not completed the work as per the terms and conditions of the contract.
178. Admittedly, before participating in the work and applying the tender, the contractor/plaintiff was permitted to inspect the site and field inspection. After then only, the plaintiff had participated in the tender. Therefore, the plaintiff cannot say that before acquisition of the land, the tender was finalised and called for and the defendants have duly handed over the site only after inspection of the site. The plaintiff should have completed the work on or before the closure of the tender. Therefore, it is for the plaintiff to prove that the defendants have not completed the work. Admittedly, in this case, the work had not been completed within time stipulated in the contract. Therefore, the plaintiffs are not entitled for any relief. Moreover, only after permitting to Page No.143/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) inspect the site, the plaintiff proceeded to commence the work and later on, the plaintiffs cannot say that the property was not acquired or handed over. Hence, in the above facts and circumstances, the plaintiff is not entitled for the relief as sought for in the plaint, and hence, C.S.No.576 of 2014 is liable to be dismissed.
179. Issue No.1 in C.S.Nos.817 and 818 of 2012: Whether the claims raised by plaintiff are maintainable, in view of the contractual clauses:
It is the specific case of the plaintiff that before the tender process/agreement, the plaintiff was found to be the lowest bidder. The plaintiff has duly carried out the work on the basis of the agreement entered into by both the parties. Due to various unavoidable circumstances, the plaintiff could not carry out or execute the work, even though the site/lands were handed over to the custody of the plaintiff. The plaintiff has claimed 8 claims as stated in the plaint.
180. The main defence taken by the defendants is that they have handed over the free sites, and the plaintiff could not carry out the entire work as per the tender/contract terms and conditions. It is to be noted that prior to the filing of the present suits, even though the defendants have adhered to Section 80 of the Code of Civil Procedure Code (for short, CPC), but they have not sent the notice prior to the filing of the suits, as the defendants are Government Departments. On this score, the suits themselves are not maintainable. In the above scenario, Section 80 of the CPC relating to issuance of notice therein, is extracted:-
Section 80: Notice: (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect Page No.144/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of--
(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;
(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;
(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;
and, in the case of a public officer, delivered to him or let at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice,--
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(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated."
181. After arguments are almost over in these three suits, the defendants/Government had preferred applications before this Court in A.Nos.3192 and 3193 of 2024, seeking to hear the issue of non-compliance of Section 80 CPC as a preliminary issue. This cannot be heard as a preliminary issue at this stage.
182. It is to be noted that the defendants called for tender on 11.04.2008 with regard to the widening two lane to four lane and strengthening of Mount-Madipakkam Road. The tender of the plaintiff was accepted on 14.08.2008 and the same is marked as Ex.P-1. A formal agreement was entered into between the parties. The contract should have been completed within one year from the date of commencement of the work. Foreclosure of contract order was on 23.01.2012. The process of work is widening of the road on both sides. The plaintiff could not complete the tender work in entirety for want of free sites. The plaintiff faced many hurdles from the date of commencement of work, and hence, according to the plaintiff, due to unavoidable/inevitable circumstances, including the natural reasons like rain, etc., he could not venture into the contract. Even the Temples have to be removed from the sites, which could not be done and there were also permanent structures in some Page No.146/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) places, which could not be removed at once.
183. However, according to the plaintiff, the defendants were not in a position to acquire the required land(s)/site(s) for execution of the contractual work even after lapse of time to conclude the contract. Hence, the defendants foreclosed the contract. Only nearly 70% of the work could be completed by the plaintiff. According to the plaintiff, the plaintiff was deprived from executing the contracted work for no fault of the plaintiff, which had resulted in loss to the defendants under various over-heads.
184. The defendants have admitted their inability to provide free sites, and therefore, resultantly, they could not facilitate the plaintiff in executing the contract. The struggle for the plaintiff to complete the contract, is also due to water pipe lines in the process of the widening of the lane works. All the above stated hurdles led the plaintiff to conclude the contract on the mid-way at the cost of the defendants/Department, resulting in delaying the execution of the work. Ultimately, there was breach committed by the defendants in the process of tender work, as the defendants could not provide free sites to the plaintiff in completing the contract.
185. Further, the machineries, over-heads, etc., were kept idle in the on-going process, due to non-availability of free sites, at the instance of the defendants. Dense Bituminous Macadam (DBM) were not given to the plaintiff, properly, to execute the contractual work, and this is the main inability of the defendants in not helping to complete the work.
186. The specific case of the plaintiff is that the tender was given for the total extent of sites/roads and this, even according to the defendants, had resulted in Page No.147/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) prolongation of the work and the plaintiff could not be compensated on this score in executing the work.
187. Further, according to the defendants, the plaintiff had not taken proper steps before venturing into the contract to complete the contract work with the defendants.
188. It is settled law that the time is the essence of any contract. According to the defendants, the plaintiff has suppressed the defendants regarding the foreclosure, which has not been clearly spelt out in the plaints. Hence, on this sole ground, the plaintiff is not entitled to get either the refund of fine, or the liquidated damages. From the evidence on record, it is crystal clear that the plaintiff has suppressed the defendants with regard to certain contractual dealings.
189. Even according to the defendants, the plaintiff has been compensated for the work done and and no amount due is to be paid to the plaintiff. The defendants had reserved their right to foreclose the contract, which is evidence from the agreement entered into between the parties. Further, the contract has been foreclosed only based on due instructions from the plaintiff regarding the part of completion made by the plaintiff, even though the plaintiff visited the sites much earlier to the award of the contract, but to the shock and surmise of the defendants, the plaintiff has resulted in loss to the defendants/Department. At the risk of repetition, it is to be stated that only on due inspection before the award of contract, he has proceeded his work. Only after understanding the difficulties in the completion of this larger contract, he has agreed to do the work, but it is too late in the date for the plaintiff to contend that the defendants Page No.148/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) had not compensated him.
190. From the above factual drop, it is clear that the plaintiff has made indelible ink on the agreement by not properly fullfiling the terms and conditions of the contract. This shows that he is ineligible to perform the contract.
191. For all the reasons stated above, issue No.1 in C.S.Nos.817 and 818 of 2012 is answered against the plaintiff and that the claims made by the plaint are not maintainable, more particularly, the clauses in the agreement have not been answered by the plaintiff in proper perspective.
192. As agreed by the parties, only on due inspection, the contract had been awarded to the plaintiff and only on the basis of the inspection of the vacant sites, the plaintiff had been duly awarded the contract and the sites were handed over accordingly. Hence, issue No.(ii) in C.S.Nos.817 and 818 are answered accordingly against the plaintiff.
193. The defendants have duly made all arrangements to complete the contract work, but the plaintiff has missed the bus while performing the contract. Hence, the delay in executing the project is not attributable on the defendants. Issue No.(iii) in C.S.Nos.817 and 818 of 2012 are answered accordingly, as the plaintiff could not blame the defendants simply on the ground that they have not made the clear way in executing the contract/project.
194. As already discussed above, the plaintiff is not entitled to be compensated for the contract, as the defendants have proved their case based on preponderance of probabilities. Issue No.(iv) in C.S.Nos.817 and 818 of 2012 are answered against the Page No.149/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) plaintiff.
195. As far as issue No.(v) in C.S.Nos.817 and 818 of 2012 is concerned, the plaintiff is not entitled for the expenses incurred for providing the technical assistants between 03.11.2008 and 03.06.2010, as the plaintiff has not performed his part of the work in time as agreed by him while the award of the contract.
196. As far as the loss of over-heads is concerned, the defendants have proved that the plaintiff has been assisted by appropriate Engineers in the field and only knowledgeable persons have been used in executing the contractual work. This is clear from the factual aspects made in the plaints. Hence, issue No.(vi) in C.S.Nos.817 and 818 of 2012 are answered accordingly.
197. Further, as discussed in the foregoing paragraphs, the refund of fine and liquidated damages, cannot be made, as the defendants have made out a case in their written statements that the plaintiff is not even entitled for fine, or the liquidated damages, as the case may be.
198. As far as interest claimed by the plaintiff in awarding interest for the money claims made in the plaints, the same cannot be requested by the plaintiff, as the facts are clear that the blame has to be put only on the plaintiff in not duly executing the contract in proper perspective.
199. As far as issue No.(ix) is concerned, there is no iota of evidence on record for the plaintiff to claim the expenses incurred by the plaintiff in performing the contract. There is no evidence, oral or documentary, to show that the plaintiff has been in a position to perform the contract entrusted to him in letter and spirit. Page No.150/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
200. Only on analysing the pros and cons of the agreement, the plaintiff has entered into the contract with the defendants, and hence, at this stage, the plaintiff cannot blame the defendants in not providing the required assistance and the defendants have not breached the terms and conditions of the agreement duly entered into between the plaintiff and defendants.
201. On a combined reading of the oral and documentary evidence, it is clearly admitted by the defendants that the plaintiff did not take proper steps in executing the contract within the time stipulated in the agreement. The plaintiff has not come to the Court in clean hands, keeping in view the agreement entered into between the parties, i.e. the plaintiff is duty bound to prove that defendant had violated the terms and conditions of the contract.
202. The plaintiff cannot simply blame the defendants for visiting/handing over the site in advance, as he had not proved his case in consonance with the agreement entered into between them and he has not proved his case that he had completed the contract within time agreed between them.
203. For the reasons stated above, the suits in C.S.Nos.817 and 818 of 2012 and 576 of 2014 are dismissed without costs. The connected pending applications are closed.
204. The decisions/citations relied on by the learned counsel appearing for both the parties, are distinguishable on facts, and the same are not applicable to the facts of the present case.
Page No.151/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) 03.01.2025 (1/2) Index: Yes/no Neutral Case citation: Yes/no Speaking Order: Yes/no cs To
1. Government of Tamil Nadu, Highways Department, Represented by the Superintending Engineer (Highways), Chennai Metropolitan Development Plan Circle, Chennai-600 035.
2. Government of Tamil Nadu, Highways Department, Represented by the Divisional Engineer (Highways), Chennai Metropolitan Development Plan Division-I, Guindy, Chennai-600 032.
C.S.No.817 of 2012 & C.S.No.818 of 2012 List of witness:
PW1 : P. Janakiraman DW1 : Thiru.G.Dhakshinamoorthy List of Documents marked on the side of plaintiff in C.S.No. 817 of 2012 Ex. Date Description of Documents No. 1 14.08.2008 Intimation of acceptance of Tender-Oringinal 2 03.11.2008 Agreement executed between the Plaintiff and Page No.152/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Ex. Date Description of Documents No. Defendant- copy 3 22.05.2009 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-
Office copy 4 21.07.2009 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-
Office copy 5 04.09.2009 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-
Office copy 6 17.11.2009 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-
Office copy 7 23.12.2009 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-
Office copy 8 20.05.2010 Telegram from the Assistant Engineer (H), CMDP, Section IX to the Plaintiff-Original 9 20.05.2010 Telegram with post Copy confirmation from the Assistant Engineer (H), CMDP, Section IX to the Plaintiff.-Original 10 20.06.2010 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-
Office copy 11 27.07.2010 Letter from the Assistant Engineer (H), CMDP, Section IX to the Plaintiff-Original 12 15.09.2010 Letter from the 2nd Defendant to the Plaintiff.-
Original 13 20.09.2010 Letter from the 2nd Defendant to the Plaintiff.-
Original 29.09.2010 Letter from the 2nd Defendant to the Plaintiff.- 14 Original 15 18.10.2010 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-
Page No.153/170
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Office copy 17 31.01.2011 Letter from the 2nd Defendant to the Plaintiff.-
Original 18 28.02.2011 Letter from the Plaintiff to 2nd Defendant with a copy to 1st Defendant.-Office copy 19 30.03.2011 Final Bill-Original 20 30.03.2011 Completion Certificate.-Original 21 18.04.2011 Letter from the Plaintiff to 2nd Defendant with a copy to 1st Defendant.-Office copy 22 03.03.2012 80 CPC Notice issued by the Plaintiff.-Office copy List of documents marked on the side of plaintiff in C.S.No.818 of 2012:
Ex. Date Description of Documents
No.
1 18.06.2008 Intimation of acceptance of Tender- Original
2 29.09.2008 Agreement executed between the Plaintiff and
Defendant-Office copy
3 20.10.2008 Letter from the Plaintiff to 2nd Defendant with a
copy to Chief Engineer (H) Metro, Chennai-Office
copy
Letter from the Plaintiff to 2nd Defendant with a
04.04.2009 copy to Chief Engineer (H) Metro, Chennai-Office 4 copy 5 22.05.2009 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-Office copy 6 21.07.2009 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai Page No.154/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Ex. Date Description of Documents No. 7 04.09.2009 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-Office copy 8 17.11.2009 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-Office copy 9 23.12.2009 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-Office copy 10 20.09.2010 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-
Original 11 18.10.2010 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-Office copy 12 29.10.2010 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-
Original 13 81.11.2010 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai.-Office copy 14 28.02.2011 Letter from the Plaintiff to 2nd Defendant with a copy to Chief Engineer (H) Metro, Chennai-Office copy 15 30.03.2011 Final bill-Original 16 30.03.2011 Completion certificate-Original 17 07.05.2011 Letter from the Plaintiff to 2nd Defendant with a copy to the 1st defendant.-Office copy 18 07.11.2011 Letter from the Plaintiff to 2nd Defendant with a copy to 1st Defendant.-Office copy 19 03.03.2012 80 CPC Notice issued by the plaintiff.-Office copy List of documents on the side of defendants in C.S.No. 817 of 2012 Page No.155/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Exhibits Description Ex.D1 The letter dated 07.10.2011 is marked as Ex.D1.
Ex.D2 Letter dated 08.03.2012 is marked as Ex.D2.
Ex.D3 attested copy of Tender schedule dated 12.08.2008.
Ex.D4 show cause notice dated 02.11.2009.
Ex.D5 show cause notice dated 30.04.2010.
Ex.D6 the photocopy of the measurement book
Ex.D7 the photocopy of the measurement book (pages 3 and 4 )
dated 12.05.2010
Ex.D8 the original telegram dated 20.05.2010.
Ex.D9 the office copy of the letter sent to the contractor dated
27.07.2010.
Ex.D10 the office copy of the letter sent to contractor dated
10.08.2010.
Ex.D11 the show cause notice sent to contractor dated 15.09.2010.
Ex.D12 the office copy of the letter sent to contractor from
Divisional Engineer dated 20.08.2010.
Ex.D13 the copy of show cause notice dated 31.01.2011.
Ex.D14 memo of payment to the contractor with enclosures
(5pages) dated 30.03.2011.
Ex.D15 office copy of the letter received from the contractor
dated 18.08.2011.
Ex.D16 office copy of show cause notice issued to the contractor
dated 20.09.2010.
Ex.D17 office copy of the telegram dated 13.09.2011.
Ex.D18 office copy of show cause notice to the contractor dated
11.10.2011.
Ex.D19 office copy of show cause notice sent to the contractor
dated 26.03.2012.
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C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
Exhibits Description
Ex.D20 the photocopy of the measurement book No.372 issued on
0412.2009 containing 100 pages
Ex.D21 the original Random Quality Test (5 pages) dated
22.12.2010.
Ex.D22 the original letter received from the contractor dated
07.10.2011.
Ex.D23 the office copy of the defendant counsel notice to the
plaintiff dated 28.09.2021.
List of documents marked on the side of defendants in C.S.No. 818 of 2012 S.No Exhibits Description 1 Ex.D1 Ex.D1 is the copy of measurement book No.0155 (page No.1 dated 04.11.2008 Page No. 28 dated 12.05.2009) (Original verified and returned) 2 Ex.D2 Ex.D2 is the true copy show cause notice issued to the contractor dated 28.09.2009.
3 Ex.D3 Ex.D3 is the true copy show cause notice issued to the contractor dated 30.04.2010.
4 Ex.D4 Ex.D4 is the true copy show cause notice issued to the contractor dated 15.09.2010.
5 Ex.D5 Ex.D5 is the true copy show cause notice issued to the contractor dated 20.09.2010.
6 Ex.D6 Ex.D6 is the office copy of the show cause notice sent to the contractor dated 29.10.2010..
7 Ex.D7 Ex.D7 is the office copy of the show cause notice sent to the contractor dated 31.01.2011.
8 Ex.D8 Ex.D8 is the original copy of memo of payment dated
30.03.2011 (containing 7 sheets)
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C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div)
S.No Exhibits Description
Ex.D9 Ex.D9 is the true copy of the telegram sent to the
9 contractor dated 13.09.2011.
Ex.D10 Ex.D10 is the office copy of the show cause notice sent
10 to the contractor dated 11.10.2011.
Ex.D11 Ex.D11 is the copy of telegram sent to the contractor
11 dated01.11.2011.
Ex.D12 Ex.D12 is the office copy of the letter sent to the
12 contractor dated 26.03.2012.
Ex.D13 Ex.D13 is the copy of the measurement book No.0155
issued on 15.05.2005 containing 100 pages with subject 13 to proof and relevancy. (original verified and returned) Ex.D14 Ex.D14 is the office copy of the defendant advocate to 14 the plaintiff counsel dated 28.09.2021 List of witnesses examined on the side of plaintiff in C.S.No.576 of 2014 P.W.1 P.Janakiraman List of exhibits marked on the side of the plaintiff in C.S.No.576 of 2014:
Exhibit Description of document Letter dated 14.08.2008 from the Office of the Chief Engineer (H) Metro, Alandur, Chennai-16 addressed to P-1 Mr.P.Janakiraman, No.2-A, Govinda Pillar Street, Arumugapettai, Walajabad, Kancheepuram District.
Agreement of the Government of Tamil Nadu. Highways Department, Division : CMDP Division-II, Wing -Chief P-2 Engineer (Highways) Metro, relating to widening single lane to two lane and strengthening of Sholavaram-
Orakkadu-Arumanthai-Perumullaivoyal Road KM.0/0 -
Page No.158/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Exhibit Description of document 10/0 P-3 Letter dated 06.10.2008 issued by P.Janakiraman, Civil Engineering Contractor, Highways (H & RW), No.2-A, Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District, to the Chief Engineer (H), Metro, Alandur, Chennai-16.
Letter dated 20.10.2008 issued by P.Janakiraman, Civil Engineering Contractor, Highways (H & RW), No.2-A, P.4 Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-2, Near Guindy Road Over Bridge, Guindy, Chennai-600 032 Letter dated 19.01.2009 issued by P.Janakiraman, Civil Engineering Contractor, Highways (H & RW), No.2-A, P-5 Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-2, Near Guindy Road Over Bridge, Guindy, Chennai-600 032 Letter dated 04.04.2009 issued by P.Janakiraman, Civil Engineering Contractor, Highways (H & RW), No.2-A, P-6 Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II, Guindy, Chennai-600 032 Letter dated 22.05.2009 issued by P.Janakiraman, Civil Engineering Contractor, Highways (H & RW), No.2-A, P-7 Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II, Guindy, Chennai-600 032 Letter dated 10.08.2009 issued by P.Janakiraman, Civil P-8 Engineering Contractor, Highways (H & RW), No.2-A, Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II, Guindy, Chennai-600 032 Letter dated 10.08.2009 issued by P.Janakiraman, Civil P-9 Engineering Contractor, Highways (H & RW), No.2-A, Page No.159/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Exhibit Description of document Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-2, Guindy, Chennai-600 032 Letter dated 04.09.2009 issued by P.Janakiraman, Civil P-10 Engineering Contractor, Highways (H & RW), No.2-A, Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-2, Guindy, Chennai-600 032 Letter dated 04.09.2009 by P.Janakiraman, Civil P-11 Engineering Contractor, Highways (H & RW), No.2-A, Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-2, Guindy, Chennai-600 032 P-12 Letter dated (despatched on 05.10.2009) in Tha.No.20/08- 09/A2, dated 15.09.2009 addressed by the Divisional Engineer (H) Office, Chennai Metropolitan Development Plan, Division-2, Chennai-32 to Mr.P.Janakiraman, Contractor, No.2.A, Govindapillai Street, Arumugapettai, Walajabad.
P-13 Letter dated 12.10.2009 issued by Mr.P.Janakiraman, Civil Engineering Contractor, Highways ( H & RW), No.2-A, Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District to the Divisional Engineer(H), Chennai Metropolitan Development Plan, Division-2, Guindy, Chennai-600 032.
P-14 Letter dated 26.10.2009, issued by Mr.V.Narayanan, B.E., Divisional Engineer (H), CMDP Division-II, Guindy, Chennai-32 addressed to Mr.P.Janakiraman, Contractor, No.2-A, Govinda Pillai Street, Arumuga pettai, Walajabad, Kancheepuram District.
P-15 Letter dated 17.11.2009 addressed by Mr.P.Janakiraman, Civil Engineering Contractor, Highways (H & RW), No.2-A, Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District to the Divisional Engineer (H), Chennai Metropolitan Development Plan, Division-2, Page No.160/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Exhibit Description of document Guindy, Chennai-600 032 Letter dated 23.12.2009 addressed by Mr.P.Janakiraman, P-16 Civil Engineering Contractor, Highways (H & RW), No.2-A, Govinda Pillai Street, Arumuga Pettai, Walajabad, Kanchipuram District to the Divisional Engineer (H), Chennai Metropolitan Development Plan, Division-2, Guindy, Chennai-600 032 Letter dated 24.05.2010 addressed by Mr.P.Janakiraman, P-17 Civil Engineering Contractor, Highways, Arumuga Pettai, Walajabad, Kanchipuram District to the Divisional Engineer(H), Chennai Metropolitan Development Plan, Plan Division-II, Guindy, Chennai-600 032 G.O.(Ms).No.281, Highways and Minor Ports (HF.1) P-18 Department, dated 13.09.2010 Letter dated 01.11.2010 addressed by Mr.P.Janakiraman, P-19 Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kanchuipuram District to The Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II, Guindy, Chennai-600 032 Letter dated 30.11.2010 addressed by Mr.P.Janakiraman, Civil Engineering Contractor, Arumuga Pettai, Walajabad, P-20 Kanchuipuram District to The Divisional Engineer (H), Chennai Metropolitan Development Plan Division-3, Guindy, Chennai-600 032 Letter dated 02.12.2010 addressed by Mr.P.Janakiraman to P-21 the Divisional Engineer(H), Chennai Metropolitan Plan Division-2, Guindy, Chennai-600 032 Letter dated 17.02.2011 in Thaakeedu No.20/2008/A2, P-22 addressed by the Divisional Engineer (H) Office, Chennai Metropolitan Development Plan Division-2, Chennai-15 to Mr.P.Janakiraman, Contractor, No.2A, Govinda Pillai Street, Arumugapettai, Walajabad Letter dated 28.02.2011 addressed by Mr.P.Janakiraman, P-23 Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kanchipuram District to the Divisional Engineer(H), Chennai Metropolitan Plan Division-2, Saidapet, Chennai-600 015.
Page No.161/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Exhibit Description of document Letter dated 07.06.2011 addressed by Mr.P.Janakiraman, P-24 Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kanchipuram District to the Divisional Engineer(H), Chennai Metropolitan Plan Division-2, Saidapet, Chennai-600 015.
Letter dated 05.07.2011 addressed by Mr.P.Janakiraman, P-25 Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kanchipuram District to the Divisional Engineer (H), Chennai Metropolitan Plan Division-2, Saidapet, Chennai-600 015 Letter dated 27.07.2021 addressed by Mr.P.Janakiraman, P-26 Civil Engineering Contraactor, Arumuga Pettai, Walajabad, Kanchipurama District, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division, Saidapet, Chennai-600 015 Letter dated 08.08.2011 in Letter P-27 No.1343/2011/S.O.A.P.Road/E.Va, addressed by Mr.K.Durairaj, B.E., Superintending Engineer (H), Chennai Metropolitan Development Plan Division, Nandanam, Chennai-35 to Mr.P.Janakiraman, Contractor, Arumuga Pettai, Walajabad, Kancheepuram.
Letter dated 14.10.2011 addressed by Mr.P.Janakiraman, P-28 Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kanchipuram District, to Superintending Engineer (H), Chennai Metropolitan Development Plan Division, Guindy, Chennai-32 Letter dated 24.11.2011 addressed by Mr.P.Janakiraman, P-29 Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kanchipuram District, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-2, Saidapet, Chennai-600 015 Letter in Lt.No.1631/2011/A1, dated 31.12.2011 addressed P-30 by Mr.C.Chandramohan, Divisional Engineer (H), CMDP Division-II, Chennai-15 to the Superintending Engineer (H), CMDP Circle, No.485, Anna Salai, M.T.B.Building, 1st Floor, Chennai-35 Letter dated 31.12.2011 in Memo P-31 No.1343/2011/S.O.A.P/I.Va.A, by the Superintending Page No.162/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Exhibit Description of document Engineer (H), Chennai Metropolitan Development Plan -
Division, Nandanam, Chennai-35 to the Divisional Engineer (H), Chennai Metropolitan Development Plan, Division-2, Chennai-15.
Letter dated 18.01.2012 addressed by Mr.P.Janakiraman, P-32 Civil Engineering Contractor, Arumuga Pettai, Walajabaad, Kanchipuram District, to the Superintending Engineer (H), Chennai Metropolitan Development Plan Circle, Anna Salai, Nandanam, Chennai-600035 Letter dated 23.01.2012 in the Memo P-33 No.1343/2011/I.Va.A, addressed by the Superintending Engineer (H), Chennai Metropolitan Development Plan Office, Nandanam, Chennai-35 to the Divisional Engineer (H), Chennai Metropolitan Development Plan, Divisioni- II, Saidapet, Chennai-15, with a copy marked to Mr.P.Janakiraman, Arumuga Pettai, Walajabaad Letter dated 24.01.2012 addressed by Mr.P.Janakiraman, P-34 Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kanchipuram District-631605, to Superintending Engineer, Chennai Metropolitan Development Plan Office, Nandanam, Chennai-35 Letter dated 25.01.2012 addressed by the Superintending P-35 Engineer (H), Chennai Metropolitan Development Plan Circle, Nandanam, Chennai-35 to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II, Saidapet, Chennai-16, with a copy marked to the Contractor Mr.P.Janakiraman, Siva Shanmugam Road, West Tambaram, Chennai-45 Letter dated 13.02.2012 addressed by Mr.P.Janakiraman, P-36 Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kanchipuram District-631 605, to the Divisional Engineer (H), Chennai Metropolitan Plan Division-2, Saidapet, Chennai-600 015 Letter dated 21.02.2012 in Letter No.HDO(A)/2933/2011, addressed by Er.K.Venkateshwaralu, AMIE, Deputy Chief P-37 Engineer (Buildings) and Public Information Officer, O/o Engineer-in-Chief (Buildings) and Chief Engineer (Buildings), Chennai Region and Chief Engineer Page No.163/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Exhibit Description of document (General), P.W.D., Chennai-5, to Mr.P.Janakiraman, Arumuga Pettai, Walajabad, Kancheepuram District.
Letter dated 06.03.2012 addressed by Mr.P.Janakiraman, P-38 Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kanchipuram District---631 605, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-2, Saidapet, Chennai-600 015.
Letter dated 06.03.2012 addressed by Mr.P.Janakiraman, P-39 Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kanchipuram District-631605, to the Divisional Engineer (H), Chennai Metropolitan Development Plan Division-2, Saidapet, Chennai-600015.
Letter dated 06.03.2012 addressed by Mr.P.Janakiraman, P-40 Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kancheepuram District to the Divisional Engineer (H), Chennai Metropolitan Plan Division-2, Saidapet, Chennai- 600015 Letter dated 09.04.2012 addressed by Mr.P.Janakiraman, P-41 Civil Engineering Contractor, Walajabad, Kanchipuram District, to the Secretary to Government, Highways and Small Ports Department, Chennai-600009 with RPAD acknowledgement card Letter dated 02.05.2012 addressed by Mr.P.Janakiraman, P-42 Civil Engineering Contractor, Walajabad, Kanchipuram District to the Divisional Engineer (H), Chennai Metropolitan Plan Division-2, Chennai-600015 Letter dated 04.06.2012 addressed by Mr.P.Janakiraman, P-43 Civil Engineering Contractor, Walajabad, Kanchipuram District to the Divisional Engineer (H), Chennai Metropolitan Plan Division-2, Saidapet, Chennai-600 015 Letter dated 11.08.2012 addressed by Mr.P.Janakiraman, P-44 Civil Engineering Contractor, Walajabad, Kanchipuram District to the Divisional Engineer (H), Chennai Metropolitan Plan Division-2, Saidapet, Chennai-600 015. Extract of Ministry of Road Transport and Highways, Section 500 of Base and Surface courses (Bituminous) P-45 Page No.164/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Exhibit Description of document Pages 168-191 Letter dated 18.02.2013 addressed by Mr.M.D.Subramanian Advocate, Madras High Court to the P- 46 Government of Tamil Nadu, Highways Department, Superintending Engineer(H), Chennai Metropolitan Development Plan Circle, Nandanam, Chennai-600 035 and also to the Government of Tamil Nadu, Highways Department, Divisional Engineer (H), Chennai Metropolitan Development Plan Division-2, Saidapet, Chennai-600 015.
Letter dated 28.01.2022 in
No.Thu.Tha.Poo(Ka)/Na.A.Oo.sa - 2005/15077 and
P-47 16548/2021, dated 28.01.2022 addressed by General
Information Officer/Assistant Chief Engineer/Principal Chief Engineer (General) and Chief Engineer, Chennai Division Office, Public Works Department, Chepauk, Chennai, to Mr.P.Janakiraman, PJR Square, No.88, 3rd Floor, Siva Shanmugam Street, West Mambalam, Chennai-
600 045 Letter dated 28.01.2022 addressed by General Information P-48 Officer/Assistant Chief Engineer/Principal Chief Engineer (General) and Chief Engineer, Chennai Division Office, Public Works Department, Chepauk, Chennai, to Mr.P.Janakiraman, PJR Square, No.88, 3rd Floor, Siva Shanmugam Street, West Mambalam, Chennai-600 045 List of witnesses examined on the side of defendants in C.S.No.576 of 2014:
D.W.1 A.Ravichandran List of exhibits marked on the side of the plaintiff in C.S.No.576 of 2014:
Exhibit Description of document Letter dated 18.01.2012 addressed by Mr.P.Janakiraman, Civil Engineering Contractor, Walajabad, Kanchipuram D-1 District, to the Superintending Engineer (H), Chennai Metropolitan Development Plan Circle, Nandanam, Chennai-600 035 Page No.165/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Exhibit Description of document Document of Government of Tamil Nadu, Highways D-2 Department, relating to widening single lane to Double lane and strengthening of Sholavaram Oragadu Arumanthal Perumullaivoyal Road, KM 0/0 - 10/0.
Form No.1.9 - Notice of handing over site issued by the D-3 Office of the Asst. Divisional Engineer(H), CMDP, Sub-
Division-IV, Chennai-600 040, addressed to Mr.P.Janakiraman, Contractor, Arumuga Pettai, Walajabad Measurement Book of Assistant Divisional Engineer (H), D-4 CMDP Sub-Division-IV, Chennai-32 Letter dated 15.09.2009 in Tha.No.20/09-09/A2 issued by D-5 Divisional Engineer (H) Office, Chennai Metropolitan Development Plan, Division-2, Chennai-32 to Mr.P.Janakiraman, Contractor, Arumuga Pettai, Walajabad Letter signed on 26.10.2009 issued by Divisional D-6 Engineer (H), CMDP Division-II, Chennai-32 to Mr.P.Janakiraman, Contractor, Walajabad Letter signed on 09.12.2009 in Lr.No.20/2008-09/A2 D-7 issued by Divisional Engineer (H), Chennai Metropolitan Development Plan Division-II, Guindy, Chennai-32 to Mr.P.Janakiraman, Contractor, Walajabad Report dated 19.04.2010 of 25 mm thick semi dense D-8 bituminous concrete (SDBC) mix for the work of CMDP Div.II Random Quality Control Test, dated 23.04.2010 issued by D-9 Assistant Divisional Engineer (NH), Quality Control Sub-
Division, Chennai-25 and Assistant Engineer (NH), Quality Control Section -III, Chennai-25.
Report dated 29.04.2010 of 60 mm thick semi dense D-10 bituminous Macadam (DBM) mix for the work of CMDP Div.II , issued by Director, Highways Research Station, Chennai-32 Letter in No.20/2008/A2/dated 04.05.2010 issued by Mr.V.Narayanan, B.E., Divisional Engineer (H), Chennai Page No.166/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Exhibit Description of document D-11 Metropolitan Development Plan, Division-2, West Saidapet, Chennai-15, to Mr.P.Janakiraman, Civil Engineering Contractor, Arumuga Pettai, Walajabad.
Letter in No.20/2008-09/A2, dated 03.06.2010 issued by the D-12 Divisional Engineer (H), Chennai Metropolitan Development Division-II, West Saidapet, Chennai-15 to Mr.P.Janakiraman, Contractor, Arumuga Pettai, Walajabad, Kanchipuram District.
Random Quality Control Test, dated 16.06.2010 issued by D-13 Assistant Divisional Engineer (NH), Quality Control Sub-
Division, Chennai-25 and Assistant Engineer (NH), Quality Control Section -III, Chennai-25.
Letter No.20/2008/A2/dated 01.10.2010 issued by D-14 Divisional Engineer (H), Chennai Metropolitan Development Plan, Division-2, Saidapet, Chennai-15, to Mr.P.Janakiraman, Civil Engineering Contractor, Arumuga Pettai,Walajabad, Kancheepuram District-631 605. Letter in No.20/2008-09/A2, dated 16.11.2010 issued by the D-15 Divisional Engineer(H), Chennai Metropolitan Development Plan Division-II, Saidapet, Chennai, to Mr.P.Janakiraman, Civil Engineering Contractor, Arumuga Pettai, Walajabad, Kanchipuram District.
Letter dated 10.06.2011 in No.20/A1/2009, issued by the D-16 Divisional Engineer(H), Chennai Metropolitan Development Plan Division-II, Chennai-15 to Mr.P.Janakiraman, Contractor, Arumuga Pettai, Walajabad, Kancheepuram District.
Letter dated 24.01.2012 in No.1631/2011/A1, issued by the D-17 Divisional Engineer(H), Chennai Metropolitan Development Plan, Division-2, Saidapet, Chennai-15, to the Superintending Engineer(H), Chennai Metropolitan Development Plan Circle No.485, Nandanam, Chennai-35 Memo in No.CC/2012/JDO/CR(5) years/dated 30.01.2012, D-18 issued by the Superintending Engineer(H), CMDP Circle, Nandanam, Chennai-35 to Superintending Engineer(H), CMDP Circle, Chennai-35 Letter dated 22.02.2012 issued by the Divisional Page No.167/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Exhibit Description of document D-19 Engineer (H)I(A/C), CMDP Division - II, Chennai-600 015 to the Superintending Engineer (H), Chennai Metropolitan Development Plan, Nandanam, Chennai-600035 Letter No./2014/A3/, dated 20.11.2014 issued by the Divisional Engineer(H), Construction and Maintenance, D-20 Chengalpet Division, Chengalpet to the Divisional Engineer(H), Chennai Metropolitan Development Plan, Division-2, Chennai-600015.
Letter No.01/cases/2014/E.Va.A2/ dated 08.12.2014 issued D-21 by Divisional Engineer(H), Chennai Metropolitan Divisional Plan, Division-1, Chennai-600 032 to the Divisional Engineer(H), Chennai Metropolitan Development Plan, Division-2, Chennai D-22 Letter No.1717/2011/JDO, dated 12.12.2011, issued by the Divisional Engineer(H), Chennai Metropolitan Development Plan Division-II, Chennai15 to Mr.P.Janakiraman, Contractor, Arumuga Pettai, Walajabad Letter dated 28.09.2021 issued by Dr.S.Suriya, Govt. D-23 Advocate (CS) from Government Pleader Office, Madras High Court, Chennai-600 104 to Mr.V.Srikanth, Advocate/ 03.01.2025 (2/2) Page No.168/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) P.VELMURUGAN, J cs Pre-delivery common Judgment in C.S.Nos.817 and 818 of 2012 (Comm.Div) and 576 of 2014 (Comm.Div) Page No.169/170 https://www.mhc.tn.gov.in/judis C.S.Nos.817 and 818 of 2012 and 576 of 2014 (Comm.Div) Judgment Delivered on 03.01.2025 Page No.170/170 https://www.mhc.tn.gov.in/judis