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24. Due to various acts of commission and omission on the part of defendants, plaintiff could not gear up its men and machinery to the optimum which resulted in slow progress of work which caused huge loss. The defendants being responsible for lower productivity and consequential loss by the plaintiff, plaintiff is entitled to payment towards idle charge of men and machinery it deployed on the work. As against 96.83% of contemplated work by the end of 24-1-1992, the progress achieved is 47% and loss in progress works out to 49.83% of contract price and the loss of productivity of men and machinery works out to 24.91% of total value. Plaintiff is entitled for payment of amount worked out at 25% of 24.91 i.e., 6.23% of contract price and as adjustable by price adjustment clause. By the time, plaintiff was expelled i.e.. on 26-3-1992, out of the contract value of Rs.8,42,93,617, plaintiff executed work to a tune of Rs.4,63,24,503/-which comes to 55% and hence loss in progress works out to 45% of the contract price. The loss of productivity of men and machinery works out to 22.5% of contract price. In all. plaintiff is entitled to a sum of Rs.47,41,515 worked out at 25% of 22.5% of contract price towards loss on account of low progress of work, occasioned on account of omissions and commissions on the part of defendants.

25. By the lime plaintiff was expelled on 26-3-1992, though plaintiff executed work to the tune of Rs.4,63,24,503/-, it was paid only Rs.4,38,78,000/-. Defendants have not measured the work the plaintiff had executed by that time and hence it is entitled to recover the balance of Rs.23,46,503/-.

26. Plaintiff had received Rs.1.26 lakhs from the 3rd defendant towards mobilisation advance loan against the bank guarantees as prescribed in the contract under Clause 9 Section 2, Vol.1 of contract with interest at 14% and the loan should be completely repaid by the plaintiff out of the current earnings under the contract. 3rd defendant effected recovery of additional amount contrary to clause 10, Section 2, Vol.1 of contract. When pointed out the same to the defendants, plaintiff was threatened that the bank guarantees would be encashed on the ground that plaintiff is not keeping up progress of the work. Section 2 Vol.1 of the contract makes it clear that the recovery of mobilisation advance is coterminous with the execution of work. The delay in the execution of work is only due to the commissions and commissions on the part of the defendants. Plaintiff by letter dated 19-10-1991, (Ex.A68 requested for extension of contract period upto 31-12-1992 and by letter dated 24-10-1991, 2nd defendant requested the plaintiff communicated the same and also agreed to keep the bank guarantees alive until the dale of completion of work, vide letter dated 26-10-1991. In the meeting with the dcfendanls and by a series of letters, plaintiff explained about the delay in settling payments and the elimination of physical obstructions and for extension of time. However, by notice dated 26-3-1992, 2nd defendant threatened the plaintiff mat penal action would be initialed for slow progress of work ignoring the commissions and commissions on their part which resulted in delay in execution of the work. Earlier, in fact there was recommendation for extcntion of contract period upto 31-12-1992. By letter dated 26-3-1992 also proposed to enter upon the site and informed the plaintiff that the bank guarantees covering mobilisation advance and interest would be encashed and adjusted towards the mobilisation advance. Subsequently, plaintiff was expelled and the three bank guarantees covered by 7/4, 7/5 and 7/6 for Rs.42,00,000/- each aggregating to Rs.1.26 crores were encashed and appropriated towards mobilisation advance alleged to be due.

27. The action of the 2nd defendant in expelling the plaintiff from contract is illegal and arbitrary. The slow progress of work was solely attribuiable only to the acts of commission and commissions on the part of the defendants, Invoking of bank guarantees is arbilrary and illegal. If the defendants had passed the paid bills for the work done in accordance with contractual conditions, the entire mobilisation advance would have been repaid from the recovery of bills by the plaintiff. By arbitrary withholding of the amounts which were legitimately due, the defendants made the plaintiff to suffer the consequences of encashing the bank guarantees which are liable to be borne by the defendants. Plaintiff by borrowing amounts from third parlies at 24% interest paid the amount to the bank. Therefore, plaintiff is entitled to be compensated for the loss caused to it by the illegal and arbitrary encashing of bank guarantees. Plaintiff is entitled to be reimbursed a sum of Rs.30,24,200/-.

44. It is incorrect to say that the plaintiff could not achieve progress of work owing to various acts of commissions and omissions on the part of defendants. Plaintiff achieved only 47% of work as against 96.83% and the shortfall at the end of 25-1-1992 is 49.83%. Defendants are not responsible for lower productivity of work and hence no compensation is payable.

45. The plaintiff was expelled by the 2nd defendant by teller dated 13-4-1992 and not from 26-3-1992 as alleged by the plaintiff. The allegation that plaintiff has done work to a tune of Rs.4,63,24.505/- is not correct. Payment was done to him for the work done. Plaintiff has not furnished any details for the balance payment of Rs.23,46,503/- as claimed by it. As per clause 50(iii) at page 2.56 of agreement if the employer expels the contractor, the contractor is not entitled to be paid any money on account of the contract until the expiration of the period of maintenance and thereafter until the cost of execution and maintenance damages for delay in completion, if any, and all other expenses have been ascertained and the amount thereof certified by the engineer. So the claim of the plaintiff that it is entitled for payment of Rs.47,41,515 - towards loss on account of slow progress of work by reason of acts of omissions and commissions on the part of defendants is not correct.