Calcutta High Court
B.K. Saha & Company vs C.M.D.A. on 4 January, 1993
Equivalent citations: AIR1993CAL249, AIR 1993 CALCUTTA 249
JUDGMENT
1. This suit was originally instituted against the trustees for the improvement of Calcutta. Since then the name of "Calcutta Metropolitan Development Authority (C.M.D.A.)" has been substituted in place and stead of the original defendant which has superseded the original defendant, pursuant to a notification of 1989 issued by the Governor of West Bengal. In the suit the plaintiff has claimed a sum of Rs. 49,39,813/-under different heads of claims. The plaintiff also originally claimed specific performance of the Contract No. 5269 dated 27th November, 1981 and for declaration that the purported termination of the contract is void. The plaintiff alternatively claimed an enquiry to ascertain the damages payable to the plaintiff. The plaintin also claimed reiund of security deposit and retention money.
2. Particulars of the different claims forming part of the said sum of Rupees 49,39,813/- are set out in Schedules B, C, D and E to the plaint. In Schedule 'B' of a sum of Rs. 28,87,716/- has been claimed on account of the price for supply of silver sand relying on the terms of the contract and on the ground the price for supply of silver sand was not included in the contract and/or the schedule thereunder. In Schedule 'C' the plaintiff has claimed Rs. 75,000/- for carrying out extra non-scheduled works as mentioned in paragraph 16 which includes Rs. 25,000/- for sal bullah piling, pumping out of water from different tanks, removal of water hycinths from different tanks, removal of sludge from a tank which according to the plaintiff are extra carried out by the plaintiff at the request of the defendant. In Schedule 'D', the plaintiff is claiming a sum of Rs. 3,74,097/ - on account of scheduled items as pleaded in paragraph 17 of the plaint. These items include sand filling due to silt at the tank at 42, Bedadanga 2nd lane Rs. 2,89,296/- earthwork in filling the said tank, Rs. 38,437/-, sand filling due to error of calculation on reduced level for tanks Rs. 21,120/- and sand filling for pond at 2113, Bose Pukur Road Rs. 25,242/-, making a total of Rs. 3,74,097/-. These are works which according to the plaintiff were carried out by the plaintiff, but were not included and/or were not taken into account in the measurement book. The claim contained in Schedule 'E' to the plaint is on account of payment for idle labour and for lorry hire at the rate of Rs. 11,100/- per day for a period of 145 days commencing from 5th June, 1982. This claim in Schedule 'E' comes to a total of Rupees 16,09,000/-.
3. In short, the case of the plaintiff is that the work order was issued to the plaintiff for construction of road and sewerage for Rash Behari Avenue Connector within the city limit under the Scheme of Eastern Metropolitan Bypass on 30th April, 1981. The tender was accepted at 23% above price schedule amounting to Rs. 40,16,019.00 p. The said sum of Rs. 40,16,019/- was of course the estimate of the defendant, on account of the various items of works which included labou as well as supply items at specified rates for the estimated-quantum of work and/or the estimated quantum of materials required. The work order was to be completed within 18 months commencing from the date of the said work order. The contract is such that the items of work on actual execution may be more or less, supplies of the items may also be more or less on actual execution and the price for each item of work and/ or supply was to be calculated at the rate specified in the contract schedule with 23% above the schedule. The contract also provided that the defendant could require additional or extra item of work to be carried out by the plaintiff and in case such additional or extra item of works are to be carried out then the rates were to be fixed in the manner as specified in the contract.
4. By letter dated 25th May, 1981, the plaintiff made a suggestion that the two ponds, jheels should be filled with sand because sand is almost incompressible and settlement in sand takes place immediately. By letter dated 22nd June, 1981 the defendant informed the plaintiff that the proposal of filling of tanks with silver sand as per tender rate in place of earth filling has been approved in the defendant's works committee meeting dated 8th June, 1981. The defendant requested the plaintiff to proceed with the work. The contract schedule provided for only 730 cubic meter of filling in water body as may lie within the area of embankment with silver sand as directed @ Rs. 32 per cubic meter. As a result of the change with regard tot he filling in of silver sand in the ponds, the quantum of work as required increased to more than 50,000 cubic meters. The item which was estimated to cost in the contract schedule Rs. 25,360/-only increased to more than Rs. 15 lakhs even at the rate provided in the contract schedule. Apart from that another controversy had also arisen. According to the plaintiff the cost of supply of silver sand was not included in the contract schedule. The defendant took the view that the cost of supply of silver sand was included in item 1B of the contract schedule. The plaintiff also claimed thaat the measurement with regard to the supply of silver sand had to be made in stakes before the same is put into the water bodies. The defendant took the view that the measurement has to be made on the basis of pre-work level and post-work level, after the work is done. This also raises a substantial claim because according to the plaintiff the silver sand after it is put in water bodies loses its volume to the extent of 1/3rd.
This claim was also not accepted by the defendant. As already mentioned above, the claim on account of supply of silver sand has been made up to Rs. 28,87,716/-. The other claim is on account of price for non-schedule works that is extra works which is also totally disputed by the defendant. The next claim is on account of schedule hems which were not taken into account in the measurement book and the last claim is on account of idle lorries, idle labourers amounting to Rs. 16,09,000/-.
All the said claims have been disputed and ;
denied by the defendant.
5. After some initial difficulties for which : according to the plaintiff the defendant was responsible and for which the defendant denies responsibility, the work was com- menced sometime towards the end of August, 1981. The work was carried on up to 5th June, 1982. Thereafter the work was stopped. The plaintiff blames the defendant for non- availability of sites and/ or ponds whereas the defendant blames the plaintiff for wrongfully discontinuing further working. Three running bills were prepared and paid to the plaintiff from time to time. The measurement book has been tendered in evidence which is ; Exhibit-3 in this suit. The total amount of the measured work has been valued at Rupees 19,83,114.71. The said measurement book is signed by the parties. It appears from evi- dence on record that a sum of Rs. 1,58,649/- was retained on account of retention money out of the said amount and a net sum of Rs. 18,24,465/- was paid to the defendant. After June, 1982 the disputes between the parties went on and ultimately the contract was sought to be terminated by the defendant. The defendant thereafter caused another tender to be floated in respect of the balance work and it is at that stage that the instant suit was instituted in this Court on 20th April, 1983.
6. The suit originally also contained a relief for specific performance and alternatively for damages. An interlocutory application was made in the suit by the plaintiff and that interlocutory application was disposed of by order dated 21st November, 1983 which was made by consent of the parties. The said agreed order provided as follows:--
"By consent of the parties the application is disposed of on the following terms and conditions;
a) The defendant shall invite fresh Tender for completion of balance of the work remaining unexecuted for construction of road and sewerage for Rash Behari Avenue connector within the City limit under the scheme of Easterm Metropolitan By-pass and allow the plaintiff to participate in the said fresh tender and shall supply the requisite Tender papers.
b) Upon the said fresh Tender being opened if it is found that the quotation of rate given by the plaintiff is lowest the defendant will accept the Tender and issue the work order.
c) The security money deposited by the plaintiff for the previous work standing in the name of the plaintiff shall be transferred for and on account of the fresh tender when accepted.
d) The above order will not in any way prejudice the plaintiff's claim under and right to proceed with the suit excepting specific performance of the agreement and refund of the Security money claimed in the suit."
7. After the aforesaid consent order was made, the plaintiff also participated in the fender for the balance work and tender for the balance work was allotted to the plaintiff. The tender for the balance work was given to the plaintiff for a sum of Rs. 53,97,009.86 by work order dated I8th April, 1984, which ultimately was put into writing being contract No. 5478 dated 19th September, 1984. The defendant has made a counter claim in this suit. The amount claimed by the defendant on account of counter claim is Rs. 19,97,294.82 being excess cost involved for carrying out the left out work by the plaintiff. The defendant has also counter claimed a sum of Rupees 1,96,800/- on account of damages due to wastage of silver sand on account of failure on the part of the plaintiff to protect both sides of the sand embankment.
8. At the time of trial, the following issued were framed;
ISSUES
1) Is the suit bad for non-compliance of the provisions of Section 156 of the Calcutta Improvement Act, 1911?
2) Was the termination of the Contract by the defendant wrongful?
3) (a) Was the rate of Rs. 32/- per cubic meter, as mentioned in the Contract, exclusive of supply of silver sand?
(b) Is the plaintiff entitled to claim any extra sum of money towards supply of silver sand and for filling the tank as pleaded in paragraph 15 of the plaint? If so, to what extent?
4) a) Did the plaintiff carry out any extra works or make any extra supplies as alleged in the plaint? If so, what is the amount, if any, which the plaintiff is entitled to claim on such account?
b) Is the plaintiff entitled to claim any damages as pleaded in paragraph 19 of the plaint?
5) Is the defendant entitled to claim payment of the sum of Rs. 21,94,094.82 from the plaintiff?
6) To what reliefs, if any, are the parties entitled?
ISSUE NO. 19. I shall first deal-with the issue No. 1 abovenamed. It has been submitted by the learned Counsel on behalf of the defendant that there was no notices under Section 156 of the Calcutta Improvement Act, 1911 and as such the suit is liable to be dismissed on that ground alone. Section 156 of the Calcutta Improvement Act, 1911 reads as hereunder:
"156. Notice of suit against Board, etc. No suit shall be instituted against the Board, or any Trustee, or any Officer or servant of the Board, or any person acting under the direction of the Board or of the Chairman or of any officer or servant of the Board, in respect of any act purporting to be done under this Act or any rule made hereunder, unfil the expiration of one month next after written notice has been delivered or left at the Board's office or the place of abode of such officer, servant or person, stating the cause of action, the name and place of abode of the intending plaintiff, and the relief which he claims, and the plaint must contain a statement that such notice has been so delivered or left."
The said Section came up for consideration before a Division Bench of this Court in the case of the Trustees for the Improvement of Calcutta v. Shyamal Ghosh, reported in 1987 CWN 216 (sic). In the said case the suit was for realisation of money for works done or executed by (he plaintiff in pursuance to a cohfract. A similar objection was taken on behalf of the trustees for the Improvement of Calcutta that the suit was barred by Section 156 of the Calcutta Improvement Act as there was no notice under the said Section. In the said case it was held that Section 156 of the Calcutta Improvement Act contains provisions almost similar to Section 538 of the Calcutta Municipal Act, 1923, Section 535 of the Bengal Municipal Act, 1932 and Section 586(1) of the Calcutta Municipal Act, 1951. The Division Bench held that Section 156 of the Calcutta Improvement Act, 1911 was not of universal application and the said provisions applied to certain kind of suits not to all suits against the authorities mentioned in the said provision. It was held that no notice would be necessary when the Act of the Corporation or the authority concerned is alleged to be ultra vires or dehors the particular statute. It was further held that in case a suit against the Corporation or the authoiity is in respect of their obligation or liability under the general law of the land, the Courts have not insisted upon notice of suit. It was also held that no notice under Section 156 .of the Calcutta Improvement Act would be necessary in case the suit does r.ot relate to acts done-under the Act. Where the plaintiff alleged breach of obligation by the defendant to perform the contract entered into with him and does not institute the suit against the trustees for the improvement of Calcutta in respect of any Act purported to be done under the Calcutta Improvement Act, 1911, no , notice under Section 156 of the Act was necessary. Mr. B. N. Sen, learned Counsel appearing on behalf of the plaintiff submitted that the claim in the instant suit wholly arises under and/ or in pursuance of the contract in writing and/or the general law of the land j namely the Contract. Act and/or a Specific . Relief Act. That submission of Mr. Sen, can hardly be disputed in this case. The plaint in this suit clearly shows that the cause of action as pleaded by the plaintiff is based under the Contract Act and/or the Specific Relief Act and/or the general law of the land. It cannot in my opinion be said in this case that the suit is to be in respect of any act purported to be done under the Calcutta Improvement Act, 1911.
10. In that view of the matter, I am of the view that Section 156 of the Calcutta Improvement Act has no application to the instant suit and no notice as required under the said Section was necessary.
11. It was also argued on behalf of the defendant that by and under the consent order dated 21st November, 1983 made at the intertocutory stage in the above suit, the , plaintiff gave up his claim for specific performance of the agreement and refund of the security money as claimed in the suit. According to the defendant the effect is that the plaintiff cannot therefore claim the relief for damages. Of course it is clearly mentioned in the said consent order that the order in any manner will not prejudice the plaintiff's claim under and right to proceed with the suit excepting the specific performance of the agreement and refund of the security money. The learned Counsel on behalf of the defendant relied on the judgment reported in 55 Ind App 360 : (AIR 1928 PC 208), Ardeshir Mama v. Flora Sasson. The Privy Council in the said case held that if a plaintiff who by his plaint has claimed, specific performance of a.;
contract and compensation in addition or in substitution, subsequently given notice abandoning his claim for specific performance, he cannot recover damages for breach of the contract without amending his plaint. In the case before the Privy Council the plaintiff had debarred himself from asking at the hearing for specific performance and the Privy Council held that in such circumstances, the result was that the plaintiff could not claim damages and the Court could award none. In the instant case, of course the plaintiff by virtue of the consent order could not claim specific performance and the result is that the plaintiff could not claim damages either in lieu or in addition to specific performance but so far as other claims of the plaintiff on other heads namely, for price of work done or goods supplied are concerned, the same are not for damages either in lieu or addition to specific performance. The consent order also specifically provides that the consent order will not in any way prejudice the plaintiff's claim under and right to proceed with the suit except, of course the specific performance of the agreement. In my opinion the said consent order only affected and/ or barred the right of, the plaintiff in respect of specific performance and damages in lieu of specific performance. So far as other claims made in the suit are concerned, the same were specifically preserved by the consent order itself and the same were not in any event given up by the said consent order. So far as claim for refund of security deposit is concerned, the same was already refunded by transfer of the said security deposit to the credit of the plaintiff, when the fresh tender of the plaintiff was accepted and as such the claim to the extent of such refund already made, does not survive in this suit, and is not being claimed either.
12. 1 am, therefore, of the view that the issue No. 1 should be answered in the negative.
ISSUE NO. 2.
13. The next issue is: was the termination of the contract by the defendant wrongful? Clause 6 of the contract provides for recovery by the defendant of liquidated damages in the event of delay in commencement, progress and completion of the work. Clause 9 provides that for the convenience of the contractor, the Engineer shall at intervals of not less than one month during the progress of the works estimate the value of the work and materials actually done or used and for advance on that basis to the extent of 92%. Clause 12 provides for rejection of work or materials and power of Chairman to have work completed or material supplied through other agencies without terminating contract. Clause 15 provides for the right of the defendant to terminate contract and to retain and apply deposit money. The said clause 15 reads as hereunder:
"15. If the contractor shall be adjudicated insolvent or shall file a petition in Insolvency or being a company go into liquidation or shall compound with or make any assignment for the benefit of his creditors or shall delay either in part or in whole the performance of his part of the contract as provided in clause 6 hereof or shall fail to comply with or shall commit a breach of any of the terms and conditions contained herein or in the said particulars or specification set out and contained in the said Schedule hereto (any particulars of specifications therein contained as to the materials to be supplied being a condition of the contract the breach of which shall give the Trust the right to reject the materials in respect of which any default has occurred and to refuse to accept the same) then and in every such case it, shall be lawful for the Trust in its absolute discretion by notice in writing signed by the Chairman and sent by registered post to the Contractor at his usual place of abode or business to enter upon the works and the site thereof and expel the contractor therefrom and to use the material and plant upon the premises for the completion of the works and to employ any other Contractor to complete the works and/or to remedy the breach of the terms and conditions contained in the contract committed by the Contractor, or for Trust itself to complete the works and/or remedy any such breach and for any such purposes to retain and apply the said deposit moneys or any part thereof and upon such entry the contract shall be determined save as to the rights and powers conferred upon the Trust and the Engineer thereby but any such determination as aforesaid shall not give the contractor any right of action against the Trust and the exercise of any of the said rights by this clause given to the Trust shall be in addition to and without prejudice to any other right or remedy which the Trust may have against the Contractor. The certificate of the Engineer as to the happening of any of the events referred to in this clause shall be conclusive proof as between the Contractor and the Trust of the statements contained in such certificate."
14. It is to be noted that the work as per the work order dated April 30,1981 was to be completed within 18 months from the date of the work order i.e. within October, 1982.
15. It is to be seen that on 22nd May, 1981, Drawing No. 3K was handed over to the plaintiff. On 25th May, 1981, the plaintiff asked the defendant with regard to the two Jheels shown to the plaintiff as to whether they should be filled in with silver sand as suggested by the plaintiff. On 22nd June, 1981 the decision of the defendant was communicated to the plaintiff approving filling of silver sand. On 22nd June, 1981 the defendant intimated that taking of pre-work level of the two tanks would commence on 25th June, 1981 that is the tank at 42, Bediadanga 2nd lane and at No. 70, R. K. Chatterjee Road. On 22nd June, 1981 the plaintiff wrote to the defendant that in view of the decision taken to fill in with silver sand the question of taking pre-work level does not arise. As the mode of measurement for sand is not stipulated in the Tender, it is to be taken as in the P.W.D. Presidency Circle Schedule as per items of contract and according to the plaintiff as per the Presidency Circle Schedule, the mode of measurement would be according to Us stacks and as soon after the stack is made possible. By letter dated 14th July, 1981, the defendant stated that the prayer regarding the mode of measurement of silver sand for filling of tanks has been discussed in the works committee which was held on 9th July, 198! and it had been decided that the mode of measurement should be on pre-work and post-work basis as provided in Item 1A of the Tender. On 15th July, 1981, the plaintiff held a meeting with the Deputy Chief Engineer in presence of the Executive Engineer and the plaintiff felt that the defendants' said officers under the impression that the rate of item 1B was inclusive of supply of sand but in fact, according to the plaintiff it was not so. The plaintiff wrote a letter dated 16th July, 1981 asserting the plaintiffs point of view in the matter. By letter dated 18th July, 1981 the Deputy Chief Engineer communicated to the plaintiff that the Committee decided that the item No. IB was inclusive of supply of silver sand and hence the claim for bulkage of sand and mode of measurement as on Us stacks could not be accepted. The defendant, of course, asked the plaintiff to commence the work in full swing. This request of the defendant was on the basis that the plaintiff was liable to and should supply the silver sand as according to the defendant the cost of supply of silver sand was included in item No. 18 of the Schedule.
16. The controversy could not be resolved with regard to the cost of supply of silver sand and the mode of measurement, and the plaintiff did ndt accept the interpretation given by the defendant to item No. IB of the Schedule. However, joint measurements were taken with regard to the pre-work level some time prior to 10th of August, 1981. By letter dated 10th August, 1981, the plaintiff in formed the defendant that the two tanks contained 1.5 meter lose silt. According to the plaintiff, the staff was placed all through on top of the silt. The plaintiff requested the defendant that the amount of silts may be verified by the Survey Department before the actual work could be started by the plaintiff. The plaintiff also requested to hand over the reduced level drawing of these tanks as early as possible. The controversy with regard to the silt was also not cleared and the plaintiff started work on or about 28th of August, 1981.
17. The aforesaid facts show that it could not in the circumstances be said that the delay in commencement of work was due to the plaintiffs fault only. The joint measurement was in any event necessary before the work could be started and resolving of the various controversies was also necessary. Even after the period of contract came to an end in October, 1982, the control was being treated by both parties as subsisting. By letter dated 4th January, 1983 the Chief Engineer of the defendant wrote to the plaintiff inter alia stating that it is expected that the plaintiff would resume work immediately without further delay. By letter dated 9th February, 1983 the defendant wrote to the plaintiff that the various claims made by the plaintiff for sand filling were found to be not admissible under the contract. By the said letter it was stated that since June, 1982 the plaintiff had been called upon to recommence the work in full swing. By the said letter the defendant informed the plaintiff that the Trust had decided to give plaintiff an opportunity for the last time to commence the work within a specified period that is 19-2-1983 failing which the contract would stand ipso facto terminated and/or cancelled without further reference to the plaintiff whatsoever.
18. Furthermore, the said notice dated 9th February, 1983 inter alia stated and/or notified that the Trust had decided to give the plaintiff an opportunity for the last time to commence execution within a specified period, that is, 19-2-1983, failing which the contract will stand ipso facto terminated and/or cancelled without further reference to the plaintiff whatsoever. Firstly, this is a notice under which the termination and/or cancellation of the contract has been made dependent on a future contingency, viz., failure of the plaintiff to commence execution of the work within 19-2-1983. The mode of termination as provided under clause 15 is by a notice in writing signed by the Chairman and sent by registered post to the contractor at his usual place of business to enter upon the works and the site thereof and expel the contractor therefrom. The clause also provides that upon such entry, the contract shall be determined. Therefore, in terms of clause 15, there has to be a notice to enter upon the works and expel the contractor therefrom and it has to be followed by actual entry and that is how, the determination of the contract takes place. There cannot be and the contract does not provide for any ipso facto termination.
Secondly if the contractor did commence work by 19-2-1983, then the question of the said notice having any effect does not and cannot arise. As a matter of fact, the plaintiff's partner in his evidence has stated that, he commenced the work on or before I9th February, 1983. There are also letters written by the plaintiff to that effect. B. K. Shah in his evidence in question Nos. 864, 865, 915, 916 and 917 has stated so. There are several letters written by and on behalf of the plaintiff being letter dated 14-2-1983 (Ext. DD), 3rd March, 1983 (Ext. XX), 3rd March, 1983 (Ext, EE), 3rd March, 1983 (Ext. FF), letter dated 10th March, 1983 (Ext. GG), which suggest that the plaintiff did commence the work as orally stated by the plaintif's witness. The plaintiff's witness, inter alia, has stated that the commencement of the work was held up because of the various acts of the defendant. According to the plaintiff's witness, the two drawings supplied respectively of 22nd May, 1981 and 6th September, 1982 were not sufficient. Even up to the alleged termination, no alignment 'drawing was supplied and no layout had been made of central pegs nor was such drawing supplied, although sites were not available and the engineering drawing did not contain all the particulars. The defendant officers on a number of departmental Memos which have been tendered in evidence and which are Exts. GGG, HHH, HI, JJJ, KKK, LLL, MMM, NNN, OOO, PPP and QQQ mentioned that the plaintiff was not supplied with an alignment drawing. Ext. NNN which is internal Memo dated 24th March, 1983 addressed by the Assistant Engineer to the Executive Engineer, Deputy Chief Engineer and the Assistant Engineer has not only stated that the work had been taken up by the plaintiff but it has also been stated that the official survey drawing showing the alignment was not even issued till that date. All these documents of the defendant to to show that the work was commenced by the plaintiff and they also show that there was no factual entering upon work or turning out the contractor even after the expiry of 19-2-1983.
19. By the said internal memo requisition was made for issuing the necessary drawing without any further delay. Furthermore, the plaintiff was making claim for price of silver sand and for bulkage etc. and if there was any substance in the said claim, then also the termination could not be effected inasmuch as the said dues of the plaintiff were payable and the defendant was not paying the same.
20. Even the Certificate as mentioned in Clause 15 of the Agreement was not signed until 18th of March, 1983. Notice dated 25th March 1983 which has been described as notice of termination of contract No. 5269 is not really in a sense a notice of termination. The language used is 'The undersigned is pleased to stage that the contract No. 5269 stands terminated pursuant to the notice already given to M/s. B. K. Saha & Co. by the undersigned vide letter No. CE/III-1836/ 3904'. As already discussed above, if the termination was pursuant to the notice dated 9th of February 1983, then there was no necessity to issue any other notice of termination and furthermore the notice dated 25th March 1983 does not also terminate the contract by the said notice. Furthermore, so far as the notice dated 9th of February 1983 is concerned, I have already stated that the said (contd. on col. 2) notice was not in accordance with clause 15 of the Contract and in my opinion, the same did not become nor was made operative since even the internal departmental memos mentioned that the contractor had commenced the work. I have no hesitation in holding that the contractor did commence work on or before 19th of February 1983 and any minor commencement of the work may be sufficient to undo the effect of the letter dated 9th of February 1983. In the premises both the notices dated 9th of February 1983 and 25th March 1983 did not and could not terminate the contract. In the premises Issue No. 2 is answered in the affirmative. In my opinion there was no termination of the contract on 19-2-1983 or immediately thereafter in terms of Clause 15 of the contract and all such allegations are wrongful and not supported by facts.
ISSUES NOS. 3(a) and 3 (b)
21. So far as Issue No. 3 (a) is concerned, one has to look to the terms of the contract to find out as to whether the rate of Rs. 32/ - per cubic meter as mentioned in the contract is exclusive of cost of supply of silver sand. Some of the relevant portions of the contract schedule are set out hereunder :
Name of work Quty. or No. Rate Per Amount Rs. Paise
1.
(a) Earthwork in filling in compound tank low land ditches etc. in layers not exceeding 150 mm. as directed with carried good earth supplied by the contractor including cost of carried earth and consolidating same with thorough saturation of water and rumming payment will be made on pre work & post work measurement after deducting 1/9th of the volume for sinkage and shrinkage.
40,000 Cu.M. 12/50 Cu.M. 5,00,000 00
(b) Fill in water body as may line within the area of embankment with silver sand as directed 730Cu.M. 32/-Cu.M. 23,300 00
(c) Removal of detetarious deposits from embankment area as directed.
730 Cu.M 12/50 Cu.M 9,125 00
2. Earthwork in road embankment with carried good earth supplied by the contractor including cost of carried earth, land in layers of 25 Cm. breaking clods and rough dressing to correct profile complete involving any lift and any load and consolidating the same with thorough saturation of water rumming rolling complete. Payment to be made on the basis of prework and post work measurement after deducting 1/9th for sinkage or shrinkage of carried earth or section measurement as directed by the Engineer-in-charge. The top 0.5 M of the embankment shall be compacted to 100% proctor density the portion below shall also be compacted to 95% proctor density.
7,300 Cu.M. 12/50 Cu.M. 91,250 00 5
(a) Supplying and transporting brick bats ballast and stacked at road side in regular stacks as per template or as directed.
(payment to be made on stack measurement of brick bats with deduction of 1/9th sinkage and or shrinkage. (150 mm. the compacted) 2,800 Cu.M. 50/Cu.M. 1,40,000 00
(b) Do --do-- Jhama metal 5 Cm. to 6.5 Cm. -- do -- as above measurement will be paid after deducting 1/9th for void (100 mm. th. compacted) 1.237. Cu.M. 78/50 Cu.M. 97,104 50
22. The contract consisted of labour as well as supply of materials. Wherever the supply of material was involved cost it is clearly mentioned in the contract schedule that the cost of supply of material is included therein. For example, in Clause l(a), the I filling in of the compound tank by earth ore is mentioned and it is also mentioned that the same will be done with carried earth supplied by the contractor including the cost of carried earth. Even consolidating of the earth with saturation of water and rumming is speci-
fically mentioned. The mode of measurement is also mentioned in Clause 1(a) which will be in pre-work and post-work measurement after deducting 1/9th of the volume for sinkage and shrinkage. As against that, in Clause 1(b) there is no mention that the silver sand is to be supplied by the contractor or that the price included the cost of supply of silver sand. Even the mode of measurement is not mentioned in the said clause. If we take the next clause that is clause (2) there is also mention of earth work and therein it is clearly mentioned that the carried earth is to be supplied by the contractor including the cost of carried earth. In Clause 5(a) and (b) also, supplying and transporting of brickbats and zama material is clearly mentioned and the mode of measurement is also clearly mentioned. These things, namely that the contractor is to supply the silver sand or to bear the cost of supply of silver sand is noi at all mentioned in Clause 1(b). The mode of measurement of silver sand is also not mentioned therein.
23. It is to be noted that the plaintiff from the very beginning stated and/or insisted that the cost of supply of silver sand is not included in Clause 1(b) and the cost of supply of the same has to be in accordance with the Presidency Schedule. It is also stated that the mode of measurement is also in accordance with the Presidency Schedule as there is no ; item in the contract. The definition of the ; works as given in the Agreement is as here-under.
"The word 'Works' shall mean all the works and materials contracted for as set out and described in the said Schedule hereto and in the particulars and specification and the drawings thereof any of them or implied in or by the same or any of them and forming part of this Agreement."
24. Clause 1(b) speaks of rate for labour only and it does not in any way say that the skid rate is inclusive of the cost of supply of silver sand.
25. The defendant all throughout insisted that the cost of supply of silver sand is not payable by the defendant. This is something which is not borne out by the contract. The defendant by taking a wrongful stand could not alter the contractual rights of the plaintiff. The defendant all throughout required of the plaintiff to supply the sand and also to carry out the work of filling in. The defendant also refused to measure the work in the manner as suggested by the plaintiff, viz., in stacks.
26. Under the terms of the contract as contained under the heading 'Roads --B' Clause 10 provides as follows;
"Sometime extra items of work are required to be executed in addition or substitution of contract schedule items of works. In other cases the rates will be derived in either pf the following ways whichever is applicable.,
i) Rates for extra works will be derived with the help of analogous items of contract schedule items.
ii) If the rates as in (i) above are not available, contract schedule of rates of Presidency Circle, PWD will be followed with adjustment of basic cost of material issued by Trust & cost of such material considered in P.C. Schedule.
iii) In case where rates for extra items cannot be derived from either of above two methods, market price of material, labour hire charges of tools & plants will be consid' ered with usual 10% profit to the contractor, In all the above 3 cases % above or below or as per quoted by the contractor will be applicable. This method of arriving at rates for extra items of works will supercede any other relevant condition is given in the works contract."
27. It was argued on behalf of the defendant that in case it is held that the cost of supply of silver sand is not included in Item 1(b) of the Schedule, then and in that event the total rate for cost of supply of silver sand and filling in will become unreasonably high. It was stated by B. K. Saha in his evidence that the other contractor M/ s. Bild Rite Construct Company who was engaged by the defendant in relation to the construction of the other part of the R. B. Connector was being paid at the rate of Rs. 72/ - per cubic meter for supply of silver sand (B. K. Saha -- question No. 84). This has not been controverted by the witnesses for the defendant. Furthermore, the Presidency Circle Schedule provides for measurement on stack basis. The defendant however refused to do so and/or to take measurement on stack basis. The plaintiff's witness proved that silver sand when it is Saturated in water the volume reduces by 1 / 3rd. This was also shown by demonstration in Court, This part of the evidence was not contradicted either.
28. It was sought to be argued that the rate of Rs. 32/- per cubic meter is unrealis-tically high to represent labour rate only. My attention was drawn to the Presidency Circle Schedule where the rate of labour was Rs. 2.25p. per cubic meter and for every additional load of 30 meters the rate increases. If the load had to be carried for a long distance the rate could very well increase to as such as Rs. 32/- per cubic meter also. It was also shown that in the Presidency Schedule there is a great difference in rates for carriage of earth and of silver sand. The rate of carriage for silver sand is very high in comparison to earth. If the rate is as per contiact terms, it is hardly of any legal consequence that the agreed rate is high. Considering all the facts and circumstances of the case, including the observations made herein-above, my answer to issue No. 3(a) is that the rate of Rs. 32/- per cubic meter as mentioned in the contract was exclusive of the cost of supply of silver sand and accordingly Issue No. 3(a) is answered in the affirmative.
29. So far as Issue No. 3(b) is concerned it is quite clear that the plaintiff was required by the defendant to supply silver sand. The rate for silver sand as provided in the presidency schedule is Rs. 30/- per cubic meter and the Presidency Circle Schedule provides that it has to be measured in stacks. The plaintiff did request the defendant to measure the silver sand in stacks but the defendant refused to do so. The defendant also refused to pay for the silver sand as per the rate provided in Presi-
dency Circle Schedule. From the measurement book which is Ext. 3 in the suit, it appears that the total quantity of silver sand supplied as per measurement after filling in the water body, came to 50,178 cubic meters, That there was silt is also proved both by the evidence of B. K. Saha and also by the drawings prepared by the defendant and/ or the witnesses of the defendant. Mr. B. K. Saha stated that the quantity of silver and required for filling in silt came to 7,350 cubic meters. The total amount of silver sand thus came to 57,528 cubic meters. Taking into account the bulkage which is to the extent of half the total quantity. It comes to another 28,764 making a total of 86,292 cubic meters. From the said figure if l/9th is deducted for sinkage and shrinkage the 1/9th comes to 9,588 and deducting the said quantity from the aforesaid total quantity, the net quantity comes to 77,704 cubic meters. At the rate of Rs. 30/-per cubic meter the price comes to Ru- pees 23,01,120/-. We have to add 23% to the aforesaid amount, that being the rate at which the contract was accepted. 23% comes to I Rs. 5,29,257.60p. Thus the total comes to Rs. 28,30,377.60p. I have not taken into account the claim of the plaintiff on account of the alleged arrear in calculation in reduced levels on tanks amounting to 500 cubic meters and the claim for 2113, Bose Pukur Road tank amounting to 600 cubic meters. So far as these two claims as mentioned in Schedule B are concerned, in my opinion, when the plaintiff accepted the measurement book and '' signed it the work done by the plaintiff was taken into account in the measurement book. So far as the claim on account of the price of the silver sand or the silver sand supplied for filling in silt or for bulkage etc. is concerned : the plaintiff was entitled under the terms of the contract and the claims were made by the plaintiff and were wrongfully rejected by the defendant. Taking the terms of the contract : into account, it cannot be accepted that the , cost of supply of silver sand was included in item l(b) or that the measurement of supply of silver sand had to be done as provided in ; l(a), l(a) appliels only to earth and l(b) is a , separate work, which relates to silver sand.
30. In the premises, so far as Issue No. 3(b) is concerned, I hold that the plaintiff was and is entitled to the payment of the price of silver sand and also on the basis and in the manner and to the exient as stated above and the issue is answered accordingly.
Issues Nos. 4(a) and 4 (b).
31. So far as the claim of the plaintiff on account of Schedule 'C' to the plaint is concerned, I am of the view that there is no request by the engineer of the defendant in writing for carrying out any of the non-scheduled or extra work as mentioned in Schedule 'C' of the plaint. The contract provides as here under;
"5. In executing the works the contractor shall carry out such variation as the Engineer may direct him to carry out and the works with such variations shall be taken to be the works to be executed under the contract PROVIDED ALWAYS that if the Engineer states in writing that the variations are extra works then the Contractor shall be entitled to receive from the Trust such payment for them in addition to the total contract amount as the Engineer shall by his certificate of completion award but not otherwise and if the engineer holds that there are omissions from the works then the Trust shall be entitled to deduct from the total contract amount such sum in respect thereof as the Engineer shall by his certificate of completion award. The engineer in fixing : such additional payment of deduction shall . have regard as far as possible to the rates set out in the schedule hereto, but if these rates are not applicable the Engineer shall adopt as the basis of his calculation the standard rates sanctioned by the Trust for the period during which the contract is in force.
It shall be the duty of the Contractor at the time when such variation are ordered by the Engineer to ask for and obtain from the Engineer his statement in writing that any variations are extra works, and to submit an estimate of the additional payment to which he considers himself entitled. If the Engineer is of opinion that the variations are such as to make it reasonable that the Contractor should have an extension of time for completing the works the Chairman may be writing under his hand to extend the time for completion".
32. Under the said clause if an extra work is to be performed then the engineer has to state in writing that the workis extra. Admittedly there is no such written request from the engineer. In the premises, I am unable to hold that the plaintiff is entitled to claim any payment for the items as mentioned in Schedule 'C' to the plaint. The reasoning will also apply with regard to the claims made in schedule 'D'. These claims are on account of schedule items. It is to be noted that the schedule items were to be entered in the measurement book. In the mesurement book the schedule items were in fact entered and the case of the plaintiff is that the items mentioned in schedule 'D' though performed by the plaintiff were not entered in the measurement book. Measurement book has been signed by the plaintiff and also by the engineers of the defendant and I do not think that the plaintiff is entitled to challenge the correctness of the measurement book having signed the same and having accepted payment on that basis. If at all his case was that some work has not been included in the measurement book then he should have got the same entered in the measurement book or lodge a protest before accepting the payment. In that view of the matter, in my opinion, plaintiff is not entitled to claim any of the amounts as mentioned in Shedule 'D'. My answer to Issue No. 4(a) is that the plaintiff has failed to prove that extra work or extra supplies were asked to be made in writing in terms of the contract, in respect of items mentioned in schedule 'C' to the plaint or that the plaintiff performed those works as extra works. I also hold that the plaintiff is not entitled to any amounls as mentioned in schedule 'D' to the plaint and the plaintiff is not entitled to make any claim on account of the items mentioned in schedules C and D to the plaint.
33. So far as Issue No. 4 (b) ;s concerned, it has to be noted that the plaintiff himself stopped the work on and from 5th of June, 1982. Even if there was no further work there, in hand then also it was the duty of the plaintiff to stop all expenses and not to incur any further expenses' thereon. Furthermore, in my opinion, the plaintiffs witness has failed to prove that any alleged expenses were in fact incurred on account of any lorry hire or on account of idle labour. No document whatsoever had been produced before this Court. No books of accounts have been produced. No source of alleged funds have either been disclosed before this Court. It is also unbelieveable that a man should go on paying on account of idle labours and hired lorries day in and day after for 145 days without taking any work from them. The plaintiff before stopping the work on or about 5th of June, 1982 had stated that due to paucity of funds and in view of non-payment of his bill he was unable to carry on the work any further. If there was such a paucity of fund, then it is difficult to believe as to how the plaintiff could go on incurring expenses at the rate of Rs. ll,10p/- per day for 450 labourers and 22 lorries without any work being done by them. I have gone through the evidence of the plaintiff in this respect and I am unable to believe that the plaintiff incurred such expenses as alleged. Furthermore if you voluntarily stop work, it is you who has to suffer the consequences thereof. The defendants witnesses have denied that any such alleged expenses were incurred by the plaintiff for idle labour or for idle lorries and I am inclined to believe the same in the facts and circumstances of this case. The issue No. 4(b) is therefore answered in the negative.
Issue No. 534. As I have held that there was no legal termination of the contract in terms of the contract and that the purported termination of the contract was wrongful and not in accordance with the terms of the contract. I dosnot think that the defendant is entitled to claim any loss or damages as sought to be counter-claimed in this suit. The defendant by wrongly insisting on non-payment of price of silver sand and also by non-supply of sufficient and proper drawings and non-delivery.-of sites brought about a situation where the work could not further be carried out by the plaintiff excepting those as stated by the plaintiff. The so-called termination was in my opinion, no termination of the contract and if the defendant would have carried out its obligation by payment on account of price of silver sand then such a situation could not have occurred. Furthermore, the defendant has failed to give any particulars with regard to the alleged damages. The items are dif ferent, the quantities are different and the particulars of the alleged counter-claim are not at all particularly given. In that view of the matter my answer to Issue No. 5 is in the :
negative.
35. Coming to the question of reliefs, I have already held that the plaintiff is entitled to a siim of Rs. 28,30,377.60 P. as already mentioned above. Furthermore the plaintiff is also entitled to the payment of the retention money amounting to Rs. 1,58,649/- which was the amount deducted from the bills of the : plaintiff and retained by the defendant as there was wrongful termination of the con- : tract and as the defendant failed to pay the dues of the plaintiff as per terms of the contract at least in respect of silver sand. The plaintiff is entitled to the payment of the said sum of Rs. 1,58,649/- in addition to the said, sum of Rs. 28,30,377.60. Therefore, there will be a decree for a sum of Rs. 29,89,026.60 paise. Since the plaintiff has been kept out of the aforesaid dues in spite of being entitled to the same the plaintiff is also entitled and there will be a decree for a interim interest and ' interest on judgment on the Said decretal amount @ 15% p.a. The plaintiff is also entitled to and there will be a decree for costs' for the suit, in favour of the plaintiff.
36. Stay is asked for on behalf of the defendant and is declined.
37. Order accordingly