Patna High Court
The State Of Bihar & Ors vs M/S Indu Construction,Hajipur on 16 May, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court FA No.251 of 2008 dt.16-05-2012
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IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.251 of 2008
(Against the judgment and decree dated 22.08.2008(decree signed
on 08.09.2008) passed by Sri Man Mohan Sharan Lal, Sub Judge I,
Bettiah, West Champaran in Money Suit No.2 of 1997).
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The State Of Bihar through the Collector, Bettiah & Ors
.... .... Defendants-Appellants
Versus
M/S Indu Construction, Hajipur
Plaintiff-Respondent
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Appearance :
For the Appellant/s : Mr. J.S. Arora, S.C. 6
Mr. Ajay Kumar, A.C. to S.C. 6
For the Respondent/s : Mr. Kamal Nayan Choubey, Sr. Advocate
Mr. Jitendra Kumar, Advocate with him.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Date: 16-05-2012
Mungeshwar 1. The defendants, State of Bihar and its authorities have filed this
Sahoo, J.
First Appeal against the judgment and decree dated 22.08.2008 passed by Sri
Man Mohan Sharan Lal, the learned Subordinate Judge I, Bettiah, West
Champaran in Money Suit No.2 of 1997 decreeing the plaintiff-respondent's suit
for Rs.66,15,633.80 with interest at the rate of 12% per annum from the date of
institution of the suit till realisation.
2. The plaintiff-respondent, M/S Indu Construction through its
partner, Dinanath Singh filed the suit for realization of Rs.66,15,633.80 with
pendente lite and future interest till realization at the rate of Rs.18% per annum
and also for cost of the suit.
3. The plaintiff's case in short is that the plaintiff is a partnership firm
and carries contract work throughout Bihar. The Executive Engineer, Gandak
Project Irrigation, Don Branch Canal Division, Ramnagar invited two tenders for
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earth work, turfing, raising, widening and strengthening the Bandh. One tender
was from R.D.00 to R.D.191 and the second tender was from R.D.191 to
R.D.307.50. The estimated cost of both the tender was Rs.74 lacs. The plaintiff
filed tender on 05.09.1989 and his tender being lowest were accepted by the
Department and for both tenders one agreement being No.3F-2/90-91 dated
14.06.1990were executed between the State of Bihar through Executive Engineer and the plaintiff. According to the plaintiff, prior to this agreement, the Chief Engineer, Motihari informed the plaintiff by letter dated 10.04.1990 to appear in his office on 17.04.1990 for the purpose of settling the rate. Thereafter, by letter no.1891 dated 14.05.1990, issued work order to perform the work from R.D.00 to R.D.100. This fact will again appear from the letter no.1200 dated 08.06.1990. By this letter, the Executive Engineer directed to begin the work at once and the work should be completed by 30.06.1990. The superintending Engineer also by letter no.1414 dated 25.05.1990 wanted that the work should be started and be completed by 30.06.1990. Again the Executive Engineer by letter no.1021 dated 28.05.1990 and letter no.1147 dated 06.06.1990 informed the plaintiff that the work should be started soon as the work is to be completed by 30.06.1990. Therefore, before the agreement on the order of Superintending Engineer by letter no.1414 dated 25.05.1990, the plaintiff started the work on 26.06.1990 within the allotted range from R.D.00 to R.D.100. The plaintiff accordingly informed the Department. Thereafter on 14.06.1990, agreement was executed between the plaintiff and the Department. On 15.06.1990, the plaintiff informed Executive Engineer, Don Canal Division, Ramnagar through Junior Engineer and S.D.O. that he has started the work on essential places between R.D.00 to R.D.100 and the Junior Engineer after inspection reported on the said letter that between R.D.75 to 81.20 and 84.50, 86 to 86.10 and 89.10, 91.1 to Patna High Court FA No.251 of 2008 dt.16-05-2012 3/ 42 91.50, the contractor has started the work at war level. On 13.06.1990, the plaintiff had also informed the Department that work had been started and requested for execution of the agreement. As per agreement dated 14.06.1990, the work was to be completed by 14.03.1991 but there was provision for extension also in the agreement. As per agreement, the authorities were entitled to take works beyond the agreement if the situation arises. The work could not be completed because of latches and negligence on the part of the Department, hence, the time was extended upto 31.12.1991 within which the plaintiff completed the entire work. The authorities also took extra work beyond designs. For extra work, the plaintiff was to be paid extra amount. By filing an application on 13.08.1990, the plaintiff requested the Executive Engineer for appropriate order as on essential points the works are being carried out rapidly which was being inspected by Executive Engineer on 05.08.1990 and it was informed to him that earth was not available near the site hence, it was to be collected from the distance from 2000 feet to 3500 feet through tractor. The plaintiff also informed that at most sensational places, extra work like chacheries, bamboos and jhakars have been done and the plaintiff is entitled for all such extra works done by him and so he requested for the payment.
4. The further case of the plaintiff is that he by letter dated 21.09.1990 informed the Executive Engineer that he has completed the work of earth and turfing between R.D.51.06 to 75.00 but the plaintiff was not satisfied with the measurement done by Junior Engineer, Sri Alam. The extra work performed by the plaintiff is of Rs.1,20,000 and, therefore, he requested that another Engineer should be appointed for measurement and payment should be made but no action was taken. The plaintiff by letter dated 25.11.1990 informed the Executive Engineer that all works from R.D.00 to R.D.100 have been Patna High Court FA No.251 of 2008 dt.16-05-2012 4/ 42 completed and requested the Department that if any work remained unfinished, the Department should direct the plaintiff but the Department has not answered this letter. Beyond the agreement, extra works were done by the plaintiff such as carriage of earth from distance through tractors, clearance of jungles, bamboos, chucheries and jhakars were fixed at the essential places and for extra work, plaintiff claimed Rs.4,35,519 out of which, Rs.80,000 has been paid and the remaining amount is still due. Besides this, the plaintiff also performed the extra works which were essential for completing the works. The plaintiff by letter no.1200 dated 08.06.1990 informed the Superintending Engineer, Tirhut Canal Division that he has completed the work more than 10% work than the approved amount and he requested for measurement and payment. Thereafter by letter dated 25.01.1992 and various other letters demanded payment. The Executive Engineer by letter no.1234 dated 09.07.1991 informed the plaintiff to complete the work and likewise, various letters were issued by the Department which have been mentioned in detail in the plaint.
5. The further case of the plaintiff is that all the works done by the plaintiff was recorded in measurement book which is in the custody of the Department. A supplementary agreement was executed i.e., 3F-2/90-91 between Executive Engineer and the plaintiff on 06.01.1992 for extra item, the estimated value of which was Rs.86,215 only. The earth work, turfing and widening, clearance of jungle, pitching with dry bricks and sand filling etc. were very necessary and essential for flood control specially for production work as such, the Executive Engineer allowed the plaintiff to complete the said work which would be evident from the letter no.1317 dated 10.04.1990, letter no.1891 dated 14.05.1990 written by Chief Engineer. The letter no.1414 dated 25.05.1990, letter no.1021 dated 28.05.1990, letter no.1200 dated 08.06.1990 written by Patna High Court FA No.251 of 2008 dt.16-05-2012 5/ 42 Superintending Engineer by which the plaintiff was allotted the work from R.D.00 to R.D.100. By letter no.2053 dated 21.11.1990, the Executive Engineer allowed the plaintiff to bring earth from outside. The Executive Engineer vide his letter no.1191 dated 23.06.1991 written to S.D.O. and Junior Engineer directed them to get the work done by the plaintiff first from R.D.75 to R.D.100 as the said distance was very sensitive. Likewise, letter no.2323 dated 06.07.1991 was written by Superintending Engineer to the Executive Engineer for getting the work done by the plaintiff from R.D.66. The Bandh was damaged due to flood and to complete the work, some extra work was necessary to raise the height of the Bandh and which would be evident from the letter no.269 dated 17.07.1991. The plaintiff completed the extra work as per direction and order of the Executive Engineer and S.D.O. which would be evident from letter no.17 dated 16.01.1993. The works were completed in 1991 itself. All the works were entered in measurement book. The plaintiff submitted the claim book No.242 in prescribed form on 24.01.1994 to Superintending Engineer with a copy to Chief Engineer, Motihari and Executive Engineer, Ramnagar for the works done and the plaintiff was legally entitled to get Rs.60,51,432. On 8 th on account bill as per measurement book 3, no.1586, page 82-97 was for Rs.17,45,913 which was not paid to the plaintiff. After much endeavor, the Department paid only Rs.13,84,823.85 paise and the remaining amount of Rs.3,06,189.15 is still due. The plaintiff gave notice on 26.08.1993 and the Executive Engineer by his letter no.1166 dated 11.09.1993 admitted the correctness of the claim of the plaintiff. The plaintiff demanded payment through various letter and also through Advocate notice demanding Rs.43,05,519 which is due to be paid to the plaintiff but plaintiff was not paid. Thereafter, notice under Section 80 was sent. Hence, the suit was filed stating that the suit is not barred by law of limitation. Patna High Court FA No.251 of 2008 dt.16-05-2012 6/ 42
6. On being noticed, the defendants-appellants filed a contesting written statement. The defence in short is that the tender was invited for the work in two parts i.e., from R.D.00 to R.D.191.250 and R.D.191.250 to R.D.307.50 and the estimated cost was Rs.31 lacs and Rs.26 lacs respectively. This was again revised and published in Hindustan Times on 27.08.1989 in which the value of the work was Rs.33 lacs and Rs.36 lacs respectively. Therefore, the total value of two works were Rs.33 lacs + Rs.36 lacs = Rs.69 lacs only and not Rs.74 lacs as claimed by the plaintiff. Two lowest tenderers were called for negotiation i.e., M/S Indu Construction and M/S Universal Construction who agreed to execute the work at 4.5% above the schedule rate in lieu of their quoted rate on tender document which was 4.99% above the schedule rate. In view of the facts, the work between R.D.00 to R.D.191.250 was equally divided between these two successful tenderers. The first part was allotted to M/S Indu Construction, the plaintiff and the second part was allotted to M/S Universal Construction. The Executive Engineer by letter no.1021 dated 28.05.1990 directed these two contractors to execute the agreement and then start the work within one week. On the failure of the plaintiff, again by letter no.1147 dated 06.06.1990, the reminder was given. Again by letter no.1200 dated 08.06.1990, the plaintiff was requested to execute the agreement for work between R.D.00 to R.D.100 for Rs.23.50 lacs. This instruction was obviously against the allotment order of Chief Engineer. Hence, by letter no.1246 dated 12.06.1990, M/S Universal Construction was allotted to execute agreement for work between R.D.80.600 to 191.250. The agreements were executed by these two contractors. The agreement executed by M/S Universal Construction was for the work between R.D.80.600 to R.D.191.250 on 14.06.1990 and the agreement executed by the plaintiff, M/S Indu Construction was for R.D.00 to R.D.80.600 Patna High Court FA No.251 of 2008 dt.16-05-2012 7/ 42 on 14.06.1990 and this agreement was numbered as 3F-2/90-91. Therefore, this agreement superseded the earlier letter issued by the Department. The Executive Engineer by letter no.1255 dated 14.06.1990 informed the plaintiff that the work from R.D.00 to R.D.80.600 for value of Rs.17,30,000 should be started immediately. No any work was done by the contractor before execution of the agreement dated 14.06.1990. The remark given by the Junior Engineer on the letter of the contractor dated 15.06.1990 is not in the official record and it was never sent to Executive Engineer. Whatever work was done by the contractor was entered in the measurement book and payments have been made. The completion of the work within extended period was admitted. The contractor filed the application for extension of time on the ground that because of the public objection, the work could not be completed within the period and the Department finding it reasonable extended the period twice. The latches and negligence of the Department is denied. All the works done by the plaintiff either regular or beyond agreement was entered in the measurement book and payments have already been made. The Liability Committee found that excess payments were made to the plaintiff and, therefore, for recovery of the excess payments, Money Suit No.2 of 1994 has been filed in the court of Sub Judge I, Bagaha. The suit is liable to be stayed under Section 10 C.P.C. till the disposal of Money Suit No.2 of 1994 filed by the State. By various letters of the Department, the plaintiff was directed to complete the work according to the agreement from R.D.00 to R.D.80.600 for Rs.17,30,000. Other allegations were denied.
7. On the basis of the aforesaid pleadings, the learned court below framed the following issues:
I. Is the suit as framed maintainable?
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II. Has the plaintiff any cause of action or right to sue?
III. Is the suit barred by law of limitation?
IV. Has the plaintiff completed the work from 00 R.D. to 100 R.D. or he has
completed the work from 00 R.D. to 80.600 R.D.?
V. Whether the plaintiff is entitled to get the reliefs as claimed?
8. After trial, the learned court below came to the conclusion that Exhibit 2 series and Exhibit 5 show that the plaintiff had worked from R.D.00 to R.D.100. Hence, the oral evidence cannot prevail against the documentary evidence. Thus, decided issue no.4 in favour of the plaintiff. The learned court below also found that the suit of the plaintiff is not barred by law of limitation. The learned court below granted 12% interest per annum on Rs.43,05,519 from the date of the suit till realization.
9. It may be mentioned here that the plaintiff-respondent has filed cross-objection against that part of the decree whereby the learned court below instead of allowing 18% interest as claimed by the plaintiff has allowed only 12% interest per annum.
10. During the course of hearing of this First Appeal, the plaintiff- respondent on 14.03.2012 filed an application being I.A. No.1882 of 2012 under Order 41 Rule 27 C.P.C. praying for direction on the appellant to produce original measurement book Nos.1256, 1257, 1680, 1586, 1521, 1583, 1581, 1620 and 1590 and also original claim book No.242 dated 12.02.1992.
11. The learned S.C.6, Mr. J.S. Arora appearing on behalf of the appellants submitted that by the agreement, Exhibit-1, the plaintiff-respondent was allotted the work from R.D.00 to R.D.80.600 only. This agreement was executed on 14.06.1990. Therefore, whatever letters were issued earlier will not prevail on the agreement between the parties. Whatever extra work was done by Patna High Court FA No.251 of 2008 dt.16-05-2012 9/ 42 the plaintiff-respondent was measured and thereafter additional agreement was entered into between the parties on 06.01.1992(Exhibit 1/A) for Rs.86,215. According to the plaintiff itself, all the works were completed by the extended period i.e., by 31 st of January, 1991. After this completion of the work, the additional agreement with respect to extra work done by the plaintiff was entered between the parties. In such circumstances, the total work done by the plaintiff- respondent as per agreement is covered by the agreement, Exhibit 1 and the extra work done by the plaintiff is covered by the additional agreement, Exhibit 1/A. There is no other third type of work done by the plaintiff but in the entire plaint, the plaintiff has claimed that he has done the extra work according to the direction of the authorities i.e., from R.D.00 to R.D.100 and the extra work to the extent of Rs.43,05,519. For this alleged extra work, the plaintiff never entered into any agreement. If in fact, these extra works were done by the plaintiff, there is no reason as to why agreement would not have been executed because additional agreement was executed after completion of the work on 06.01.1992 but that was only for Rs.86,215. The plaintiff never insisted for execution of any other agreement regarding the work done for Rs.43 lacs and odd. The plaintiff never claimed this amount although, the work was completed in 1991 i.e., 31.12.1991. The State of Bihar never recognized the so called extra work which would be evident from additional agreement, Exhibit 1/A dated 06.01.1992. When the State of Bihar did not execute any agreement for the extra work done by the plaintiff for more than Rs.86,215, the cause of action arose on the said date but the suit has been filed in the year 1997 i.e., dated 24.01.1997. Therefore, the suit is barred by law of limitation. The learned counsel further submitted that it is surprising that the original agreement was entered for the work valued at Rs.17,30,000 only i.e., Exhibit 1 but no agreement was entered between the Patna High Court FA No.251 of 2008 dt.16-05-2012 10/ 42 parties regarding the work which according to the plaintiff is valued at Rs.43,05,519. The plaintiff-respondent is claiming that he has completed the work which was also allotted to another contractor i.e., M/S Universal Construction. The learned trial court in the garb of clause 22 and 25 of the agreement held that on the direction of the authorities, the plaintiff has completed the extra work without considering the fact that the work was allotted to M/S Universal Construction by the agreement. Therefore, the authorities had no jurisdiction to direct the plaintiff to complete the work allotted to another in the garb of clause 22 or 25 of the agreement. According to the learned counsel, plaintiff-respondent is trying to take undue advantage to some minor mistakes in different letters issued by the defendants but the learned court below without considering as a whole wrongly interpreted Exhibit 2 series, the various letters issued by the Department and held that the authorities has directed to complete the work which is unsustainable in the eye of law. The plaintiff approached the court for payment of the money for the work which is alleged to have been completed by him but there is no foundation for that work. The so called measurement book No.242 has been filed by the plaintiff two years after completion of the work and cannot be relied upon. The plaintiff has not adduced any reliable evidence or produced any order issued by the authorities to so that the work order given to M/S Universal Construction has been cancelled and now the said work has been re-allotted to the plaintiff-respondent.
12. The learned counsel further submitted that to confuse the court the plaintiff filed two money suits in the same court being Money Suit No.1 of 1997 and Money Suit No.2 of 1997 and in both the suits, the plaintiff claimed realization of money for the work done by him pursuant to the agreement, Exhibit 1. In the cross-objection, the judgment of Money Suit No.1 of 1997 has Patna High Court FA No.251 of 2008 dt.16-05-2012 11/ 42 been produced by the plaintiff-respondent from which it would appear that in that case also, the same issue no.4 has been framed by the court below and same finding has been recorded again and decreed the suit. According to the learned S.C.6, if the plaintiff has done the work as per the same agreement i.e., Exhibit 1, then two suits for the same relief was not maintainable and even if two suits were filed both should have been amalgamated.
13. The learned counsel further submitted that the plaintiff-respondent approached the court with unclean hand with malafide intention so much so that in the plaint, he concealed the fact that he entered into agreement for the work from R.D.00 to R.D.80.600 and claimed that he completed the work from R.D.00 to R.D.100. Although, on the same date, within the knowledge of the plaintiff, another agreement was executed between the State of Bihar and M/S Universal Construction for the work from R.D.80.600 to R.D.190.250. The plaintiff intentionally concealed this fact and with a view to confuse the matter filed two money suits. The learned court below has wrongly relied upon Exhibit 2 series without going through the letters and also wrongly gave much emphasis on Exhibit-5. The State of Bihar never admitted that the amount claimed by the plaintiff is due to be paid to him, therefore, the suit itself was barred by law of limitation but the learned court below wrongly held that the suit is not barred by law of limitation. The Liability Committee examined the materials and found that the plaintiff has been paid excess amount amounting to Rs.9 lacs and odd and, therefore, for the recovery of the said amount from the plaintiff for the work done by him as per agreement, Exhibit 1, Money Suit No.2 of 1994 has been filed. This fact was not denied by the plaintiff that money suit has been filed for recovery of the amount wherein the plaintiff has appeared and filed written statement. The plaintiff never denied that this money suit relates to Exhibit 1 but Patna High Court FA No.251 of 2008 dt.16-05-2012 12/ 42 the learned court below wrongly held that the defendant-appellant failed to prove that, that suit has been filed regarding the agreement dated 14.06.1990, Exhibit 1. Although, the fact was never denied by the plaintiff-respondent and the facts admitted need not be proved. According to learned counsel, the partner of M/S Universal Construction has been examined in this case on behalf of the appellant who claimed that the plaintiff has done the work from R.D.00 to R.D.80.600 only but the learned court below wrongly disbelieved the statement and decreed the plaintiff's suit. The learned counsel further submitted that the measurement books were produced before the court but the learned court below wrongly drawn adverse inference for non-production of measurement book. On these grounds, the learned counsel submitted that the judgment and decree are liable to be set aside and the First Appeal be allowed with cost.
14. On the other hand, the learned senior counsel, Mr. Kamal Nayan Choubey submitted that the defendants have admitted the fact that the plaintiff has done extra work. The various letters relied upon by the court below clearly show that the authorities directed the plaintiff to complete the work from R.D.00 to R.D.100. Now, therefore, the defendants-appellants are stopped from denying the claim of the plaintiff-respondent. According to the promissory estoppel, when one party has by his words or conduct made to the other a clear and unequivocal promise or assurance which was intended to affect the legal relation between them and to be acted accordingly, then once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert. According to the learned counsel, by Exhibit 2 series, the authorities directed the plaintiff to complete the work and accordingly the plaintiff completed the work. Therefore, the learned court below has rightly come to the conclusion that the plaintiff has completed the work Patna High Court FA No.251 of 2008 dt.16-05-2012 13/ 42 according to the direction of the authorities which is covered under clause 22 or 25 of the agreement, Exhibit 1. The appellant filed application under Section 10 of the C.P.C. for stay of the suit on the ground of pendency of Money Suit No.2 of 1994 but the same was rejected by the court below and the same order was never challenged by the appellant. Now, therefore, the same matter cannot be agitated by the appellant before this court. The Money Suit No.1 of 1997 and Money Suit No.2 of 1997 were filed on the same day. So far Money Suit No.1 of 1997 is concerned, it is for realization of amount which is due according to the work allotted to the plaintiff under Exhibit 1 whereas the amount claimed by the plaintiff in Money Suit No.2 of 1997 giving rise to the present First Appeal is the amount for extra work done by the plaintiff beyond Exhibit 1.
15. The learned senior counsel further submitted that the learned court below has wrongly not allowed 18% interest per annum prior to institution of the suit on the claimed amount and interest pendent elite in future and, therefore, the cross objection is filed which is fit to be allowed. The learned counsel relied upon AIR 2005 Supreme Court 2071(Bhagwati Oxigen Limited vs. Hindustan Copper Limited) on this point. According to the learned counsel, there is no legality in the impugned judgment and decree and, therefore, the same cannot be set aside. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed with cost and this cross objection filed by the plaintiff-respondent is fit to be allowed.
16. The learned counsel for the respondent regarding the Interlocutory Application for additional evidence submitted that the work done by the plaintiff has been mentioned in the measurement books detailed in the application. Therefore, the appellant should first produce the said measurement book which would clarify the matter. The application was filed in the court below but the Patna High Court FA No.251 of 2008 dt.16-05-2012 14/ 42 defendant-appellant never produced the said measurement books. In reply to this, the learned S.C.6 submitted that the measurement books relating to agreement, Exhibit 1 and Exhibit 1/A (additional agreement) for the work done by the plaintiff were produced before the court below and in fact, the case of the appellant is that all the works done by the plaintiff has been entered in the measurement book for which the plaintiff has already been paid and for the excess payment, Money Suit No.2 of 1994 has been filed.
17. In view of the above rival contention of the parties, the point arises for consideration in this appeal is as to "whether the plaintiff-respondent has been able to prove its case of completion of work from R.D.00 to R.D.100 and extra work as claimed by the plaintiff-respondent and whether the impugned judgment and decree are sustainable in the eye of law?"
18. The case of the plaintiff according to the plaint in short is that he was allotted the work from R.D.00 to R.D.100. The plaintiff to prove this fact has brought on record numerous documents which have been marked as Exhibit 2 series. The plaintiff has also produced oral evidences. According to the plaintiff, the extra work which were essential for the completion of the work under the agreement were done by him according to the direction of the authorities from R.D.00 to R.D.100 but the defendants-appellants have not paid the extra work done by the plaintiff. On the contrary, according to the State, appellants the plaintiff was allotted only the work from R.D.00 to R.D.80.600 through agreement, Exhibit 1 for Rs.17,30,000. For the extra work done by him, another additional agreement was entered into between the parties after completion of the work on 06.01.1992 for Rs.86,215. For the work done by the plaintiff, extra amount of Rs.9 lacs and odd was paid. Therefore, for recovery of the extra amount, Money Suit No.2 of 1994 has already been filed by the Patna High Court FA No.251 of 2008 dt.16-05-2012 15/ 42 appellant against the plaintiff-respondent. To prove this fact, the appellants have also produced documentary as well as oral evidences. Now let us consider the case of the plaintiff first. From perusal of the impugned judgment, it appears that the learned court below on the basis of Exhibit 2 series recorded the finding that plaintiff completed the work from R.D.00 to R.D.100.
19. Exhibit 1 is the agreement dated 14.06.1990 executed between the appellant and the plaintiff-respondent through partner, Dinanath Singh for the work R.D.00 to R.D.80.600 for Rs.17,30,000. This document has been produced by the plaintiff. It is admitted case that the work was to be completed within the extended period i.e., 31.12.1991. This agreement dated 14.06.1990 is 2F-2/90-
91.
20. Exhibit 1/A is additional agreement dated 06.01.1992 executed between the parties regarding the extra work done by the plaintiff-respondent for estimated cost of Rs.86,215 only. This Exhibit has also been produced by the plaintiff. Now, therefore, from these documents produced by the plaintiff itself it is evident that the plaintiff was allotted work from R.D.00 to R.D.80.600 only.
21. From perusal of the impugned judgment, it appears that the learned court below considering Exhibit 2 series came to the conclusion that the plaintiff was directed by the competent authorities to perform the work from R.D.00 to R.D.100. Issue no.4 has been framed to the effect that "has the plaintiff completed the work from 00 R.D. to 100 R.D. or he has completed the work from 00 R.D. to 80.600 R.D.". Considering Exhibit 2 series, the learned court below from paragraph 17 onwards, recorded a finding at paragraph 22 that the court is of opinion that the plaintiff has worked from R.D.00 to R.D.100. It may be mentioned here that Money Suit No.1 of 1997 and Money Suit No.2 of 1997 have been filed by the plaintiff-respondent. The learned senior counsel, Mr. Patna High Court FA No.251 of 2008 dt.16-05-2012 16/ 42 Kamal Nayan Choubey appearing on behalf of the plaintiff-respondent submitted that Money Suit No.2 of 1997 giving rise to this First Appeal relates to the claim of the plaintiff regarding extra work only and the other Money Suit No.1 of 1997 relates to the claim of the plaintiff regarding the work done by him within the agreement, Exhibit 1. From perusal of the plaint, I do not find any such statement made by the plaintiff that this Money Suit No.2 of 1997 is with respect to the extra work done by the plaintiff only. No issues have been framed to that effect. The finding recorded by the court below at paragraph 22 is that plaintiff completed the work from R.D.00 to R.D.100. Therefore, the submission of the learned counsel for the plaintiff-respondent is not supported by the pleading or the finding recorded by the court below. The court below proceeded to record the finding on the issue no.4 and the question was as to whether the plaintiff completed the work from R.D.00 to R.D.100.
22. Now let us consider Exhibit 2 series on the basis of which the finding has been recorded by the court below. So far the oral evidences are concerned, that may be considered later on. According to the plaintiff, prior to the agreement by letter no.1891 dated 14.05.1990, the Chief Engineer issued work order whereby the plaintiff was entrusted to perform the work within R.D.00 to R.D.100 and this fact will appear from the letter by Executive Engineer being letter no.1200 dated 08.06.1990 vide paragraph 3 of the plaint. The letter no.1891 dated 14.05.1990 has been marked as Exhibit 2. From perusal of this Exhibit 2, it appears that the subject of the letter is the work from R.D.00 to R.D.191.25 and in the second paragraph of the letter, it has specifically been mentioned that in the first portion of the distance, the plaintiff-respondent, Indu Construction has been allotted the work and the second portion of the distance has been allotted to the M/S Universal Construction. These two contractors have Patna High Court FA No.251 of 2008 dt.16-05-2012 17/ 42 been allotted equal work. In the third paragraph, it has been mentioned that the contractors may start work after obtaining necessary orders and directions from the concerned authorities. This letter has been addressed to both the contractors. Therefore, the pleading of the plaintiff at paragraph 3 that plaintiff was entrusted to perform the works within range of R.D.00 to R.D.100 is entirely contrary to Exhibit 2. The second letter referred in paragraph 3 of the plaint is letter no.1200 dated 08.06.1990. This letter has been marked as Exhibit 2/D. In this letter, the letter dated 28.05.1990 and dated 06.06.1990 has been referred to and regarding that letter, this letter has been issued. In this letter addressed to M/S Indu Construction, it has been directed that the security money of Rs.51,000 may be deposited and after entering into agreement, the work should be started. This letter has been issued not independently but in connection with earlier letter dated 28.05.1990 and 06.06.1990. From perusal of this Exhibit 2/D, it cannot be said that the plaintiff-respondent was allotted the work from 00 R.D. to 100 R.D. Now let us see the two letters referred to in this Exhibit 2/D. The letter dated 28.05.1990 has been marked as Exhibit 2/B. This letter has been addressed to both contractors i.e., M/S Indu Construction and M/S Universal Construction and the subject is work from 00 R.D. to 191.25 R.D. and for execution of the agreement. In this letter, it has specifically been mentioned that by letter dated 21.05.1990, both of them were allotted equal work within this 00 R.D. to 191.25 R.D. and they were requested to enter into agreement and then start the work so that it may be completed within 30.06.1990. The letter dated 06.06.1990 has been marked as Exhibit 2/C. In this letter again, the reference of letter Exhibit 2/B has been given and the plaintiff respondent was requested to enter into agreement and then start the work. In view of these letters discussed above, it cannot be said that the plaintiff was given the work from 00 R.D. to 100 R.D. Patna High Court FA No.251 of 2008 dt.16-05-2012 18/ 42 The earlier letter is dated 14.05.1990, Exhibit 2 wherein it has specifically been mentioned that both the contractors have been allotted the work in equal distance between 00 R.D. to 191.25 R.D. Thereafter letter dated 25.05.1990, Exhibit 2/A was issued wherein again both the contractors were requested to enter into the agreement and start the work. In this letter, reference has been given to Exhibit 2 i.e., letter dated 14.05.1990. Thereafter again on 28.05.1990, Exhibit 2/B, both the contractors were requested to enter into agreement and they were informed that by letter no.1891 dated 14.05.1990(Exhibit 2), they were already informed earlier.
23. The letter no.1147 dated 06.06.1990 has been marked as Exhibit 2/C. Again in this letter reference has been made to the letter dated 28.05.1990(Exhibit 2/B) and the plaintiff was requested to enter into agreement with respect to half portion of the work from 00 R.D. to 191.25 R.D. and then to start the work. From the above letters, Exhibit 2 to 2/D, it is clear that both the contractors i.e., plaintiff, M/S Indu Construction and the another M/S Universal Construction were allotted half and half equally from R.D.00 to R.D.191.25. Both of them were requested repeatedly to enter into agreement and then to start the work. In none of these letters, there is any mention that the plaintiff, M/S Indu Construction has been allotted the work from R.D.00 to R.D.100 except in the subject of the subsequent letters issued after 14.05.1990, Exhibit 2.
24. Exhibit 1 is the agreement dated 14.06.1990. Admittedly, by this agreement, the plaintiff-respondent was allotted the work from R.D.00 to R.D.80.600. The letters referred to above were prior to agreement and the plaintiff and M/S Universal Construction were requested by the authorities to enter into agreement and then to start work. Therefore, the case of the plaintiff that he had already started work prior to entering into agreement is not believable Patna High Court FA No.251 of 2008 dt.16-05-2012 19/ 42 as in view of the above letters, the contractor was always directed to enter into agreement and obtained necessary orders and directions and start working. Now, had the plaintiff- respondent started the work from R.D.00 to R.D.100, there is no reason as to why he entered into agreement for doing the work from R.D.00 to R.D.80.600 only. In such view of the matter, the earlier letters by which the plaintiff was requested to enter into agreement merged in the agreement Exhibit 1 which is from R.D.00 to R.D.80.600 only.
25. It is not the case of the plaintiff-respondent that by undue influence or pressure, the State of Bihar or the authorities of State of Bihar got the agreement executed with the plaintiff from R.D.00 to R.D.80.600 instead of R.D.00 to R.D.100. After entering into agreement, therefore, now the plaintiff- respondent cannot be allowed to say that he had worked beyond the distance agreed upon by Exhibit 1. It is not disputed that M/S Universal Construction was allotted the work from R.D.80.600 to R.D.191.25. It is not the case of the plaintiff that although the M/S Universal Construction was allotted the aforesaid distance, the M/S Universal Construction did not perform the work and, therefore, that portion of the distance allotted to M/S Universal Construction was cancelled and the authorities directed the plaintiff-respondent to perform the work of that distance also.
26. Exhibit 2/E is letter no.2053 dated 21.11.1990 addressed to both the contractors. It was directed to both of them to fulfill the formalities and thereafter obtaining orders from the authorities the rest work should be done. They will collect the earth from distance, if the earth is not available near the spot after obtaining order from S.D.O.
27. Exhibit 2/I is letter dated 09.07.1991 issued from the office of Executive Engineer to the plaintiff with regard to the work at R.D.66.50. Exhibit Patna High Court FA No.251 of 2008 dt.16-05-2012 20/ 42 2/J also relates to the work at R.D.66.50.
28. Exhibit 2/K is letter written by Executive Engineer to Chief Engineer dated 17.02.1992 wherein it has been mentioned that the partner of M/S Indu Construction namely Sri D.N.Singh was giving pressure for payment of the bill for Rs.6 lacs. This Exhibit has been produced by the plaintiff. This letter is dated 17.02.1992. It may be mentioned here that the work has been completed by the plaintiff on 31st of December, 1991. Thereafter also, according to the plaintiff, he was demanding payment of Rs.6 lacs in connection with the work done by him.
29. Exhibit 2/M is letter dated 16.01.1993 issued by Executive Engineer to Superintending Engineer. The subject is the work from R.D.66 to R.D.80. In the letter, it has been stated that M/S Indu Construction had performed the work from R.D.66 to R.D.80 in the year 1990-91. According to the agreement no.3F-2/90-91, the amount was Rs.17,30,000 and according to the agreement, the plaintiff, M/S Indu Construction has performed the work upto Rs.16,67,984 and, therefore, in that agreement, amount of Rs.62,200 has been saved. If the contractor is directed to perform 10% extra work then the amount will be Rs.2,36,000. From perusal of this letter, it appears that the work from R.D.76.00 to R.D.76.130 was measured.
30. Exhibit 2/N is letter dated 26.07.1996. Exhibit 2/P is dated 18.11.1992. By this letter, M/S Indu Construction was informed that the work of agreement no.3F-2/90-91 has been closed. Therefore, by this letter also, the work allotted to the plaintiff-respondent by the agreement, Exhibit 1 has been closed. However, in the subject, the distance from R.D.00 to R.D.100 has been written in hand. The learned counsel for the respondent submitted that this proved that the plaintiff was allotted the work from R.D.00 to R.D.100. Only Patna High Court FA No.251 of 2008 dt.16-05-2012 21/ 42 because in the heading of subject in the letter, the distance has been mentioned, it will never override the agreement entered into between the parties.
31. We have discussed the letters by which according to the plaintiff- respondent, he was allotted the work from R.D.00 to R.D.100. From the discussion above, it is clear that in none of the letters after agreement any allotment of work was made from R.D.80.600 to R.D.100 in favour of the plaintiff-respondent. In Exhibit 1, he has specifically been allotted the work from R.D.00 to R.D.80.600. The earlier letters to this agreement was only by way of information to the plaintiff that both the contractors have been allotted half and half equal works and, therefore, they were requested to enter into agreement and thereafter the work should be started. However, the agreement was executed in favour of the plaintiff from R.D.00 to R.D.80.600 only.
32. Exhibit 2/Q is letter dated 15.01.1993. Exhibit 2/R is letter dated 19.01.1994. By this Exhibit 2/R, the Irrigation Commissioner replied the legal notice to the effect that the matter was forwarded to Engineer-in-Chief, Govt. of Bihar. Exhibit 2/S is letter dated 29.06.1995 by which again the plaintiff was informed by Engineer-in-Chief that the matter regarding claim has been forwarded to Chief Engineer for necessary action. These are the letters produced by the plaintiff on the basis of which it was argued that the plaintiff was allotted the work from R.D.00 to R.D.100. We have discussed the letters in detail above.
33. Exhibit 2/T is letter dated 20.04.1992 issued by the plaintiff- respondent demanding Rs.5,22,000 only against the work done by him. The letters, Exhibit 2/U to 2/W are letters issued by M/S Indu Construction.
34. Exhibit 3 is said to be book no.242 dated 12.02.1992. This is also the document after completion of the work according to the agreement. It may be mentioned here that for extra work, additional agreement was executed on Patna High Court FA No.251 of 2008 dt.16-05-2012 22/ 42 06.01.1992 i.e., Exhibit 1/A. This extra work was estimated at Rs.86.215 only. If the plaintiff's case is believed that he has done extra work of Rs.43,05,519 then why there was no additional agreement executed regarding the said work.
35. The learned counsel for the plaintiff-respondent submitted that the authorities had power to direct the contractors pursuant to clause 22 and 25 of the agreement, Exhibit 1 to do any work which are essential for completion of the work under agreement and accordingly, the authorities directed the plaintiff to do those essential works which are covered under clause 22 and 25. So far this submission is concerned, let us examine clause 22 and 25 of the agreement, Exhibit 1 or Exhibit 1/A. Clause 22 says that all works to be executed under the contract shall be executed under the direction and subject to the approval in all respect of the Superintending Engineer of the circle for the time being who shall be entitled to direct at what point or points or in what manner they are to be commenced and from time to time carried on. Therefore, this clause 22 speaks about the work to be executed under the contract. Clause 25 says that in the case any class of work for which there is no such specification as is mentioned in rule 1, such work shall be carried out in accordance with the circle specification and in the event there are no circle specification then in such case the work shall be carried out in all respect in accordance with the instructions and requirements of the Engineer-in-charge. Therefore, clause 25 speaks about the work for which there is no specification. In this connection, clause 26 is most important clause which has not been considered by the trial court. Clause 26 says that the expression "work" or "works" where used on these conditions shall unless there be something in the subject or context repugnant to such construction be construed and taken to mean the works by virtue of contract committed to be executed whether temporary or permanent or whether original, alter, substituted Patna High Court FA No.251 of 2008 dt.16-05-2012 23/ 42 or additional. Therefore, the work must be related to the works contracted between the parties and for doing the said work, if it is necessary to do some extra work then the authorities are empowered to direct the contractor to do that extra work for completion of the work contracted. In my opinion, this may be explained by giving an example as follows:
"A ditch is required to be filled up by earth(soil) and the authorities concerned estimated that for filling up the said ditch, 50 trucks earth is necessary and the cost was estimated. At the time of doing the work, it was found that in fact, for completing the work, 55 trucks earth is necessary. In such circumstances, the authorities can direct the contractor to compete the work by doing the extra work i.e., putting the extra 5 trucks earth."
36. In the present case, this is not the case of the plaintiff. According to the plaintiff, the authorities directed him to do extra works which are not specified in the agreement and the said works are essential for completion of the work contracted. It may be mentioned here that the work for which agreement was executed in favour of the plaintiff-respondent was estimated at Rs.17,30,000. In addition to this Rs.17,30,000 covered under agreement, the plaintiff is claiming Rs.43,05,519. Therefore, from the above facts, it appears that for the work of Rs.17,30,000, tenders were invited and agreement was executed. It cannot be said that without visiting the spot, the cost was estimated or that the contractors without visiting the spot submitted the tenders. Therefore, the authorities and the contractors were fully aware of the fact that for completion of the work under agreement which works are necessary for completion of the work. If according to the authorities, the extra work of Rs.43,05,519 is necessary for completion of the work of Rs.17,30,000 then the tender should have been invited for the extra work also. The other aspect of the matter is that when extra Patna High Court FA No.251 of 2008 dt.16-05-2012 24/ 42 work was done by the plaintiff, additional agreement was executed i.e., Exhibit 1/A. There is no explanation as to why no agreement was executed with respect to this so called extra work for Rs.43 lacs and odd. When the appellant is inviting tenders for the work of Rs.17,30,000 why the work for Rs.43 lacs and odd, no tender will be invited. If the plaintiff's case is believed then the authorities will always invite tender for very meager amount of work and in the garb of clause 22 and 25, major amount of work will be directed to be completed without there being any tender for agreement. In my opinion, this cannot be the intention of the clause 22 or 25 of the agreement. If the case of the plaintiff is accepted then the State Government's treasury i.e., the public money will be opened for being looted by unscrupulous persons. The State of Bihar by letter no.09/Code-115/77/1151 dated 16.03.1978 issued letter/direction(see at pg.325 of Bihar Public Works Account Code, Seventy Edition 2011 by Malhotra Brothers) that if there is possibility of increase of 5 percent above the sanctioned amount for a work then there should be re-estimate of the value and then after obtaining sanction the work should proceed. In this case, there is nothing on record regarding re-estimate or sanction or anything.
37. Exhibit 4 series are the postal receipts. Exhibit 5 is the certificate granted by Executive Engineer dated 10.02.1992. During the course of argument, the learned counsel for the respondent gave much emphasis on this certificate. In the certificate, it has been mentioned that M/S Indu Construction has done the work from R.D.00 to R.D.100 and the cost of which is Rs.19,30,000. On what basis this certificate has been granted has not been mentioned because the work was completed on 31st of December, 1991 and thereafter this certificate has been granted. If this is believed then also according to the authority only, the amount for the work was Rs.19,30,000. There is Patna High Court FA No.251 of 2008 dt.16-05-2012 25/ 42 nothing in this certificate that the plaintiff has done extra work amounting to Rs.43 lacs and odd claimed in the suit. So far mentioning of distance is concerned, it is contrary to the agreement, Exhibit 1. It is not understandable how the plaintiff completed the work upto R.D.100 particularly when he was allotted the work upto R.D.80.600 and from R.D.80.600 onwards, M/S Universal Construction was allotted the work. There is no explanation at all. Merely because here and there in some letters either in the body of the letter or in the heading of subject, the distances have been mentioned from R.D.00 to R.D.100, it cannot be said that the plaintiff completed the work from R.D.00 toR.D.100 particularly when agreement, Exhibit 1 was never modified or altered or substituted. No specific letter or order has been produced by the plaintiff whereby he was also allotted the work from R.D.80.600 to R.D.100. The letters which have been produced as discussed above do not prove the fact claimed by the plaintiff. Therefore, on the basis of Exhibit 5, no conclusive finding can be recorded that the plaintiff completed the work from R.D.00 to R.D.100. Exhibit 6 is the legal notice under Section 80 C.P.C. Exhibit 7 series are the letters written by the plaintiff-respondent to various authorities demanding the amount.
38. Now let us consider the oral evidence of the plaintiff. P.W.1 is Dinanath Singh, the partner. He has stated the same thing as pleaded in the plaint i.e., by letter no.1891 dated 14.05.1990, work order was issued to him from the distance 00 to 100 and again stated about the letter no.1414 dated 25.05.1990, 28.05.1990 and 06.06.1990. We have discussed in great details these letters which have been marked Exhibit 2 series. At paragraph 12 of his evidence, he has stated that in addition to the work under agreement, he has done extra work from R.D.51.06 to R.D.75, the cost of which was Rs.1,20,000. Except this other works were also taken the cost of which was Rs.4,35,519 out of that Rs.80,000 Patna High Court FA No.251 of 2008 dt.16-05-2012 26/ 42 has been paid. Therefore, the plaintiff's claim is based on the letter, Exhibit 2 series i.e., Exhibit 2 to 2/D. In the cross examination, this witness has admitted that along with him another contractor i.e., M/S Universal Construction was allotted the part work. However, when suggestion was given to him that M/S Universal Construction was allotted the work from R.D.80.600 to R.D.191.250 by agreement, he conveniently stated that he had no knowledge.
39. P.W.2 and P.W.3 have stated that plaintiff has performed the work from R.D.00 to R.D.100. However, P.W.3 in the cross examination at paragraph 17 has stated that all the works were done according to the agreement. P.W.4 has stated that the work from R.D.00 to R.D.100 was performed on his supervision. At paragraph 13, he has stated that for the extra work, a supplementary agreement was executed on 06.01.1992. At paragraph 17 of his cross examination, he stated that he cannot say from what distance to what distance extra work was being done. Whatever work has been done was according to the agreement. These are the oral evidences. Therefore, merely on the basis of oral statement of the witnesses that the work from R.D.00 to R.D.100 was done by the plaintiff cannot be accepted in view of the written agreement between the parties, Exhibit 1 and 1/A.
40. D.W.1 is the partner of M/S Universal Construction. He has stated that M/S Indu Construction was allotted the work from R.D.00 to R.D.80.60 and agreement was entered into on 14.06.1990. At the time of agreement, he was also there. The cost for that work was estimated at Rs.17,30,000. The agreement of the plaintiff was 3F-2/90-91 and according to that agreement, the plaintiff completed the work from 00 R.D. to 80.60 R.D. From R.D.80.600 to R.D.191.250, the work was allotted to M/S Universal Construction for Rs.17,72,000 and on the same day i.e., 14.06.1990, the Patna High Court FA No.251 of 2008 dt.16-05-2012 27/ 42 agreement no.2F-2/90-91 was entered with the M/S Universal Construction. Under his supervision, M/S Universal Construction performed the work from R.D.80.600 to R.D.191.250. The evidence of this witness is according to the agreement. There is no denial about this fact that the plaintiff was allotted the work from R.D.00 to R.D.80.600 by agreement, Exhibit 1. The only case of the plaintiff-respondent is that he was allotted the work prior to the agreement from R.D.00 to R.D.100 and he had already started the work. We have discussed the documents on which the plaintiff based his claim. There is nothing such allotment of work from R.D.00 to R.D.100 in favour of the plaintiff-respondent. Always request letters were issued to the plaintiff to enter into agreement and then to start work and thereafter agreement was executed on 14.06.1990, Exhibit
1.
41. D.W.2 has also supported the case of the defendant. D.W.3 is the Executive Engineer during the period when the work was executed. He has proved Exhibit C, the tender document. He has also stated that by Exhibit 1, the plaintiff was allotted the work from R.D.00 to R.D.80.60 for Rs.17,30,000. He has also stated that within the distance, the extra work were taken from the plaintiff, contractor for which additional agreement was executed for Rs.86,215.
42. Exhibit A is the letter no.1255 dated 14.06.1990 written by the authorities to the plaintiff-respondent wherein specifically it has been mentioned that he was allotted the work from 00 R.D. to 80.60 R.D. and requested to complete the work within 14.03.1991.
43. Now let us consider the reasoning of the trial court. At paragraph 17, the trial court mentioned the case of the plaintiff and the case of the defendant. At paragraph 18, the oral evidences have been considered. I have already mentioned above that when the documentary evidences are available, the Patna High Court FA No.251 of 2008 dt.16-05-2012 28/ 42 oral evidences will not override the documentary evidences. The terms and conditions have been mentioned in the agreement entered into between the parties. The oral evidence adduced by the plaintiff is contrary to this agreement. The learned court below has not considered this aspect of the matter. The oral evidence contrary to the terms and conditions of the documents is inadmissible. At paragraph 19, the trial court although mentioned that by agreement, Exhibit 1, the plaintiff was allotted the work from R.D.00 to R.D.80.600 for Rs.17,30,000 but relying on Exhibit 2, 2/N, 2/O, 2/P, 2/S and Exhibit 5 held that the plaintiff has completed the work from R.D.00 to R.D.100. I have dealt these letters in great details in the preceding paragraphs. In short, it may be mentioned here that by Exhibit 2, the letter dated 14.05.1990 only it was directed to the contractors that they should start work after obtaining necessary directions and orders from the Executive Engineer and Assistant Engineer. The plaintiff has not produced any order or direction by which the plaintiff was directed to start the work prior to agreement. Exhibit 2/N is a letter dated 16.07.1996 issued by Engineer-in- Chief whereby the application of plaintiff dated 04.06.1996 was forwarded to the Chief Engineer and nothing more. However, in the subject, it has been mentioned from R.D.00 to R.D.100. It may be mentioned here that the heading subject will not be the decisive factor for recording a finding that the plaintiff was allotted the work and completed from R.D.00 to R.D.100. Moreover, this application is of the year 1996. The plaintiff might have mentioned the subject of the letter which was copied in this forwarding letter. Therefore, from bare perusal of this letter, it is clear that the application filed by the plaintiff was only forwarded by the Engineer-in-Chief to Chief Engineer and nothing more.
44. Exhibit 2/O is claim book no.242 dated 12.02.1992. It may be mentioned here that according to the plaintiff itself, the work was completed by Patna High Court FA No.251 of 2008 dt.16-05-2012 29/ 42 31st of December, 1991 and this claim book is dated 12.02.1992. When the plaintiff was admittedly allotted the work from R.D.00 to R.D.80.600 by agreement, Exhibit 1, how he worked beyond 80.600 R.D. There is no explanation at all. It is submitted on behalf of the plaintiff that on the direction of the authorities as provided under clause 22 and 25 of the agreement, he completed the work. This submission cannot be accepted simply because in the garb of clause 22 or 25, the authorities cannot direct one contractor to do the work of another contractor particularly when in the present case, the other contractor has not been made party and the partner has been examined who stated that he has done the work beyond R.D.80.600. Therefore, the claim book is also not the conclusive proof.
45. Exhibit 2/P is the letter dated 18.11.1992 whereby the plaintiff- respondent was informed that the agreement no.3F-2/90-91 is closed now. Therefore, by this letter, the contractor was informed regarding the closure of agreement Exhibit 1. It appears that again in the heading of subject, R.D.00 to R.D.100 has been mentioned. Much emphasis has been given at the time of hearing. As stated above, the subject is not the decisive factor of the contents of the letter. The contents to be read as a whole. In the present case, by this letter only, information was sent to the plaintiff informing him that the agreement with him is now closed. It appears that the plaintiff-respondent is trying to take undue advantage of the distance mentioned in the heading "subject". Moreover, this mentioning of distance is hand written whereas letter is typed copy.
46. Exhibit 2/S is dated 29.06.1995 by which Engineer-in-Chief informed the plaintiff-respondent that his application dated 17.01.1995 was forwarded to Chief Engineer for necessary action. Therefore, the meaning of this letter is only communication to the plaintiff that his application has been Patna High Court FA No.251 of 2008 dt.16-05-2012 30/ 42 forwarded. In this letter again, in the heading "subject", the distance has been mentioned 00 R.D. to 100 R.D. Therefore, only because the communications were made to the plaintiff regarding his claim application from 00 R.D. to 100 R.D. has been forwarded to proper authority, no presumption can be drawn or no finding can be recorded that in fact, the authorities admitted that plaintiff had worked from 00 R.D. to 100 R.D.
47. The learned trial court has not considered the contents and implications of these letters in their right prospective. It appears that the trial court considering only the distance mentioned in heading subject recorded a finding that the plaintiff completed the work from R.D.00 to R.D.100. Exhibit 5 is again the certificate granted by Executive Engineer. It may be mentioned here that the Executive Engineer i.e., the authority of the Exhibit 5 has not been examined as witness. It will not be out of place to repeat here again that on the basis of the heading "subject", the finding has been recorded by the trial court without considering the contents and meaning of the letters in face of Exhibit 1 series. The witnesses examined on behalf of the defendant-appellant clearly support the case of the defendant and the terms and conditions mentioned in the agreement. Exhibit A has been filed to show that plaintiff was allotted the work from R.D.00 to R.D.80.600. The learned court below has not assigned any reason as to why these evidences of the appellant were not accepted. I find no reason to discard these evidences which are in consonance with the pleading and the agreement.
48. It further appears that the learned court below has drawn adverse inference against the appellant on the ground that the plaintiff claimed that all the works done by him were entered in measurement book which is in custody of the appellant but the same has not been produced by the appellant. Here, it may be Patna High Court FA No.251 of 2008 dt.16-05-2012 31/ 42 mentioned that the plaintiff is claiming that he has completed the work beyond the agreement which was allotted to M/S Universal Construction. This fact is admitted. In such circumstances, the onus is always on the plaintiff to prove this fact as to how he worked beyond R.D.80.600. He being the plaintiff cannot take advantage of weakness of the defendant's case particularly when all the facts are admitted. The plaintiff has not produced any order issued by any authority specifically directing him to work beyond 80.600 R.D.. No material has been brought on record either oral or documentary to prove that the work allotted to M/S Universal Construction beyond 80.600 R.D. was not done by M/S Universal Construction, therefore, agreement with M/S Universal Construction was modified and M/S Universal Construction was allotted the work from R.D.100 onwards and that part of the work was re-allotted to the plaintiff-respondent. The plaintiff is only relying on the heading of "subject" in some of the letters without examining the contents and implications of the letters.
49. The other aspect of the matter is on the same date the plaintiff- respondent and M/S Universal Construction entered into agreement separately with the State of Bihar. The plaintiff-respondent was allotted the work from R.D.00 to R.D.80.600 and beyond that M/S Universal Construction was allotted the work. The partner of the M/S Universal Construction has been examined by the appellant who deposed that he has done the work according to the agreement. In such circumstances, the State of Bihar, appellant has already paid the amount to the M/S Universal Construction. It is not the case of the present plaintiff that M/S Universal Construction has not been paid the amount for the work done. The plaintiff is again demanding for the said amount for the work claiming that he has completed the work from R.D.80.600 to R.D.100 also. So far this distance is concerned, there is rival claim which would be evident from the Patna High Court FA No.251 of 2008 dt.16-05-2012 32/ 42 evidences discussed above. In one hand, plaintiff is saying that he has completed the work on the other hand, the partner of M/S Universal Construction saying that he has completed the work. Therefore, in absence of M/S Universal Construction as party in the present suit, no finding could have been recorded by the trial court because this finding will affect the right of M/S Universal Construction. In my opinion, therefore, for this claim, M/S Universal Construction was a necessary party and in its absence, no finding can be recorded that a part of work allotted to M/S Universal Construction has been completed by the plaintiff-respondent.
50. The learned counsel for the plaintiff-respondent as has been stated above submitted that this suit has been filed for only the extra work done by the plaintiff. We have discussed in great details the documentary evidences. In none of the letters, the plaintiff was directed by any authority to do this and that extra work. In none of the letters, there is any mention about the value of extra work that has to be done by the plaintiff. From perusal of these letters, it only appears that the plaintiff was directed to complete the work allotted to him by the agreement. Therefore, according to the learned counsel for the plaintiff- respondent, the work done by the plaintiff from R.D.80.600 to R.D.100 is extra work for the plaintiff-respondent. So far this submission is concerned, it is not acceptable because this work was allotted to M/S Universal Construction. How the authorities will direct the plaintiff to do the work allotted to another contractor. There is no explanation at all. Only statement is that the plaintiff has done the work according to the direction of the authorities. On the contrary, there is no any such direction. The learned trial court has not at considered these aspects of the matter.
51. The learned counsel for the plaintiff-respondent submitted that Patna High Court FA No.251 of 2008 dt.16-05-2012 33/ 42 this suit is only for the extra work and the Money Suit No.1 of 1997 has been filed for the amount due to be paid for the work done under the agreement. So far this submission is concerned, it may be mentioned here that there is no such pleading in the plaint to this effect. Nowhere it is pleaded that the plaintiff has filed this Money Suit No.2 of 1997 claiming the amount for the extra work only. There is no such issue also tried by the court below. Issue no.4 as stated above is relating to the distance from 00 to 80.600 R.D. or 00 to 100 R.D. The trial court also recorded the finding that the plaintiff has completed the work from R.D.00 to R.D.100. There is no finding that which extra work has been done by the plaintiff and from which distance to which distance. There is no evidence also. Only some bald statements have been made by the witnesses that beyond the agreement, some extra works were done. If the extra work is beyond agreement as claimed by the plaintiff then there must be some basis for claiming the amount. When the amount of work under agreement is only Rs.17,30,000, can it be believed that extra work for the amount of Rs.43 lacs and odd was done by the plaintiff without there being any basis or order or agreement. The learned trial court recorded a finding that the plaintiff completed the work from 00 R.D. to 100 R.D. and abruptly came to the conclusion that the amount claimed by the plaintiff is due to be paid. It is not the case that the work from the distance R.D.80.600 to R.D.100 is valued at Rs.43,05,519 nor it can be said that it is an extra work because it is the work under agreement allotted to M/S Universal Construction. In my opinion, therefore, only on the ground of non-production of measurement book which is also disputed by the appellant, the plaintiff's claim cannot be accepted.
52. The learned S.C.6, Mr. Arora submitted that prior to agreement according to the plaintiff, he had done the work and the agreement is dated Patna High Court FA No.251 of 2008 dt.16-05-2012 34/ 42 14.06.1990. If this case is believed then the plaintiff's claim is barred by law of limitation because in spite of the work done by the plaintiff no agreement was executed in connection to the extra work or the work beyond 80.600 R.D. Therefore, the claim of the plaintiff was refused as far back as in 1990 and the present suit has been filed in the year 1997. In reply to this, the learned senior counsel, Mr. Choubey submitted that the defendants acknowledged the plaintiff's claim earlier. Only by letter no.450 dated 14.02.1992, the plaintiff's claim was denied by Superintending Engineer and the suit has been filed within 3 years. So far this submission of the learned counsel for the respondent is concerned, it may be mentioned here that after completion of the work the right to obtain the payment accrued to the plaintiff. Admittedly, the original work was completed by 31st of December, 1991 and the extra work under Exhibit 1/A was completed by 12.02.1992. Therefore, the limitation will start from that date. The limitation will not stop running only because the plaintiff-respondent was demanding before the authorities. There is no acknowledgement given by the appellant about the amount due to be paid. Only the applications were filed by the plaintiff which were forwarded through proper channel. That does not mean that the authorities or the State of Bihar ever acknowledged the claim of the plaintiff. The submission of the learned counsel for the respondent to the effect that for the first time on 14.02.1994, the plaintiff's claim was denied is concerned, in my opinion, the limitation will not depend on the denial of the appellant. If this position is accepted then if the appellant will not deny and communicate the intention nor pay the demand for more than a decade or more the limitation will not stop running. It can only be said that the limitation will start running from the date of acknowledgement. Here there is no such evidence on record that ever the appellant acknowledged the due to the plaintiff. The learned court below has Patna High Court FA No.251 of 2008 dt.16-05-2012 35/ 42 wrongly held that the limitation will start running from the date of rejection of the claim and, therefore, the suit is within limitation. As stated above, the limitation will never stop running from the date of claim till it is denied. In my opinion, in the present case, when the work was completed in the year 1991, the right to recover the amount due accrued to the plaintiff. The suit has been filed in the year 1997. Therefore, the claim is time barred.
53. In view of the above discussion, the following facts emerge:
(a) The plaintiff-respondent was awarded the work from R.D.00 to R.D.80.600 only by agreement, Exhibit 1, the value of which was Rs.17,30,000 only.
(b) It is admitted that from R.D.80.600 onwards upto R.D.191.250, M/S Universal Construction was allotted the work.
(c) Prior to entering into agreement, the contractors were requested by the authorities to enter into agreement and start the work which is supported by the letter, Exhibit 2 to 2/D.
(d) There is no material except the bald statement of the witnesses that the plaintiff-respondent was ever directed to do the work which was allotted in favour of M/S Universal Construction.
(e) There is nothing on record to show that plaintiff was directed ever to do some extra work except the work covered under Exhibit 1/A. The only evidence is bald statement of the witnesses.
(f) For the extra work done by the plaintiff, supplementary agreement, Exhibit 1/A was executed on 06.01.1992.
(g) There is no pleading or evidence that at what point or distance, the plaintiff completed the extra work which was directed by any authority either by oral or by written order. The only statement is that the plaintiff also completed the extra work.
Patna High Court FA No.251 of 2008 dt.16-05-2012 36/ 42
(h) The State authorities invited tenders for the work and allotted a portion of the same after negotiation to the plaintiff for the cost of Rs.17,30,000. There is no explanation as to why no tender was invited for the so called extra work which was even more valued i.e. more than double cost from the original work.
(i) There is no pleading as to why no agreement was executed between the parties regarding this so called extra work particularly when supplementary agreement was entered into between the parties(Exhibit 1/A) on 06.01.1992 which was for Rs.86,215 only.
(j) There are only two agreements for doing main work and extra work and the claim of the plaintiff is flowing from those agreements, Exhibit 1 and 1/a but the plaintiff filed two separate money suits. According to the plaintiff, this money suit is for extra work but there is neither such pleading nor such issue nor any evidence to that effect. In other words, for same cause of action and same set of facts and same claim two money suits have been filed.
(k) There is nothing on record to show that agreement, Exhibit 1 was ever substituted or modified or that the agreement with M/S Universal Construction was substituted or modified.
(l) There is no basis for claim by the plaintiff, therefore, it was entirely onus of the plaintiff to prove this fact satisfactorily.
(m) There is nothing on record produced by the plaintiff that he ever demanded within the limitation period, the amount claimed by him in this money suit. According to the plaintiff himself as pleaded in the plaint he filed writ application being CWJC No.9022 of 1993 and he represented before the Liability Committee which was rejected. From perusal of the order passed by Division Bench of this court on 25.01.1994 passed in CWJC No.9022 of 1993, it is clear that the writ application was filed for payment of the dues with regard to the earth work done Patna High Court FA No.251 of 2008 dt.16-05-2012 37/ 42 in terms of the agreement entered into between the parties. Therefore, even in the year 1994, the plaintiff did not demand payment for this so called extra work.
(n) The suit has been filed in the year 1997 although, the work was completed in the year 1991 and as claimed the amount was due from the date of the completion of the work.
(o) The measurement book has been filed by the State of Bihar which is available on record. From perusal of it, it appears that the same was closed on 10.07.1994. There is no mention of any extra work.
54. The learned senior counsel, Mr. Choubey appearing on behalf of the plaintiff-respondent submitted that at paragraph 4 and 5 of the plaint, there is specific pleading that the plaintiff did extra work beyond designs on the order of the authorities and the defendants-appellants did not deny this fact. The plaintiff also pleaded that extra work like chucheries, bamboos and jhakars had been done. So far this submission is concerned, it may be mentioned here that in paragraph 6 of the written statement, the appellants clearly stated that all the works done by the plaintiff was entered in the measurement book whether the same were regular or beyond agreement or extra work. Therefore, there is denial in the written statement. Moreover, on the basis of pleading only, this case cannot be decided. The plaintiff is claiming 43 lacs and odd. We have seen above that there is no basis except this pleading and oral evidence to that effect. The question is whether on the ground that there is no specific denial, the public money be allowed to be looted. As discussed above, nothing has been brought on record whereby it can be recorded that by this order or that order, the plaintiff was directed by this authority or that authority to do this particular extra work beyond designs and for what value.
55. The learned counsel next submitted that in paragraph no.1514 of Patna High Court FA No.251 of 2008 dt.16-05-2012 38/ 42 Halsbury's Law of England, promissory estoppel has been explained in which it is provided that when one party has, by his words or conduct made to the other a clear and unequivocal promise or assurance which was intended to affect the legal relations between them and to be acted accordingly, then once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert. So far this legal position is concerned, it is well settled and there cannot be any dispute but the law will be applicable if the fact is established and not in the air. In the present case, as stated above the plaintiff has failed to produce any order or any letter whereby in clear and unequivocal promise or assurance, any of the authorities directed the plaintiff to do extra work. Therefore, the plaintiff is required to prove this fact that the authorities ever promised or made assurance. The learned counsel submitted that various letters have been produced. So far this submission is concerned, we have discussed the various letters i.e., Exhibit 2 series. I do not want to repeat the same again here. It may be mentioned here that elaborate written arguments have been filed by the parties. From perusal of the same, it appears that the plaintiff-respondent based his claim on these Exhibit 2 series which we have already discussed above.
56. Mr. J.S. Arora, the learned S.C.6 appearing on behalf of the appellants submitted that the plaintiff approached the court with unclean hand and suppressing the fact. Within his knowledge, the agreement was executed between the plaintiff and the defendant-appellant and also between the defendant and M/S Universal Construction but he did not disclose this fact anywhere. Although, there is no order or letter issued by the authorities, he tried to take undue advantage of mentioning of distance in the heading "subject" in the various letters and has been able to mislead the trial court. The learned counsel Patna High Court FA No.251 of 2008 dt.16-05-2012 39/ 42 further submitted that to confuse the trial court, two money suits were filed and the claim is based on Exhibit 1 and 1/A only. No reason has been assigned as to why two money suits have been filed. Although, it is argued at the time of hearing that this Money Suit No.2 of 1997 is with respect to extra work but this argument is baseless as there is no foundational pleading and there is no mention that this suit has been filed only for extra work and another money suit is being filed today itself for the claim relating to work under contract. In this way, the plaintiff when approached the court with unclean hand, he is not entitled to any relief and his claim should be thrown at any stage outrightly.
57. In the case of S.P.Chengalvaraya Naidu vs. Jagannath, AIR 1994 Supreme Court 853, the Apex Court has held that the courts of law are meant for imparting justice between the parties. One who comes to the court must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of the litigation. A litigant who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. In the present case, the plaintiff-respondent concealed the fact that M/S Universal Construction was allotted the work from R.D.80.600 onwards and pleaded that he was allotted the work from R.D.00 to R.D.100. We have discussed each and every material available on record in great details above from which it appears that in fact, the plaintiff approached the court with unclean hand.
58. So far the I.A. filed by the plaintiff-respondent being I.A. No.1882 of 2012 is concerned, the prayer has been made that the State of Bihar Patna High Court FA No.251 of 2008 dt.16-05-2012 40/ 42 may be directed to produce measurement book. It may be mentioned here that as stated above at paragraph 6 of the written statement, the State of Bihar has mentioned that all the works done by the plaintiff have been mentioned in the measurement book and the measurement book is available which has been produced. As stated above, the learned trial court has drawn adverse inference against the appellant for non-production of particular measurement book. It will not be out of place to mention here that the onus is on the plaintiff to prove his case. He did not produce any order or direction given by the authorities. There is no agreement. There is no pleading that this suit is for extra work only. In view of the decision of the Apex Court reported in AIR 1965 Supreme Court 1008, a party cannot be allowed to adduce additional evidence at appellate stage for pronouncing judgment in a particular way. It is not the case that on the basis of the evidence available on record, the judgment cannot be pronounced. I, therefore, find no merit in the I.A.. Accordingly, it is rejected.
59. In view of my above discussion, I find that the plaintiff- respondent has failed to prove that he has done any extra work beyond the agreement. The plaintiff has also failed to prove that he was allotted the work from R.D.00 to R.D.100. However, it is admitted fact that he was allotted the work from R.D.00 to R.D.80.600. In view of my above finding, the finding recorded by the court below is unsustainable in the eye of law. I also find that the claim of the plaintiff is time barred. Accordingly, the finding of the court below on this point is set aside. Thus, the findings of the trial court are reversed. The point is decided in favour of the appellants and against the plaintiff- respondent.
60. The cross objection has been filed by the plaintiff-respondent claiming interest at the rate of 18%. I have already found above that the plaintiff Patna High Court FA No.251 of 2008 dt.16-05-2012 41/ 42 failed to prove that he has done any extra work beyond Exhibit 1 or Exhibit 1/A and that the claim if any, is time barred, therefore, the plaintiff is not entitled for any amount. In such circumstances, there is no question of granting interest arises.
61. The learned S.C.6, Mr. J.S. Arora submitted that the claim of the plaintiff-respondent is frivolous and without any basis but intentionally he dragged the State of Bihar upto this court with ulterior motive. In view of the above facts, the plaintiff-respondent is liable to pay the exemplary cost as without there being any basis, the State of Bihar has been dragged to various litigation in connection with illegal demand. The learned counsel relied upon the case of Salem Advocate Bar Association vs. Union of India, (2005)6 Supreme Court Cases 344. The learned S.C.6 further submitted that during the pendency of this appeal as condition of stay of execution case, the State of Bihar had deposited Rs.50 lacs and out of that, the plaintiff-respondent has already withdrawn Rs.25 lacs from the Executing Court. According to the learned counsel, since the decree of the trial court was money decree, the usual condition was imposed which was complied with by the State of Bihar.
62. From perusal of the order dated 09.11.2010 while granting stay of execution case, this court relying on the decision of the Apex Court i.e., (2009)2 Supreme Court Cases 426(Malwa Stripes vs. Jyoti Limited) had directed the State, appellant to deposit Rs.50 lacs i.e., the 50% of decreetal amount and out of that 50% i.e., Rs.25 lacs was allowed to be withdrawn which has been withdrawn by the plaintiff-respondent. Since I have recorded a finding in the preceding paragraphs that the claim of the plaintiff is baseless and is not entitled to any relief, the plaintiff is liable to repay i.e., refund the said amount within one month to the appellants before the Executing Court and if it is not refunded within this Patna High Court FA No.251 of 2008 dt.16-05-2012 42/ 42 period, the State of Bihar shall realize the same through process of the court.
63. In the case of Salem Advocate Bar Association (supra), the Apex Court held that "judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) CPC. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for costs to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefor."
64. In view of the above settled proposition of law, in my opinion, the plaintiff-respondent is not only liable to refund the amount withdrawn from the Executing Court but also liable to pay cost of the litigation throughout.
65. In the result, this First Appeal is allowed. The impugned judgment and decrees are set aside and the plaintiff's suit for recovery of money is dismissed with cost of Rs.1 lakh to be paid to the appellants, State of Bihar within one month failing which the State of Bihar shall be at liberty to realize this cost also along with above stated amount of Rs.25 lacs withdrawn by the plaintiff- respondent.
(Mungeshwar Sahoo, J) Saurabh/A.F.R.