PANNA LAL Vs. STATE OF BOMBAY

JUDGEMENT

(1.) The appellant is a building contractor. He constructed buildings for the Bai Gangabai Memorial Hospital Gondia, Kunwar Tilaksingh Civil Hospital, Gondia, and also for the Twynam Hospital, Tumsar all within the district of Bhandara in Madhaya Pradesh in execution of three separate contracts in respect of the three hospitals which were concluded between him and the Deputy Commissioner of Bhandara. Though he received part payment in respect of each of these contracts he claims not to have received full payment of what was due to him. On April 1, 1548 he brought the three suits out of which these three appeals have arisen for obtaining payments which he claims were due to him. His averments in all the three plaints are similar, except that in respect of one of the suits, viz, the one in respect of the construction work done for the Bai Gangabai Memorial Hospitals he has also claimed the price of some furniture said to have been supplied by him at the request of the Deputy Commissioner. The common case of the plaintiff in these three suits was that the Deputy Commissioner entered into these contracts "as representative of the Provincial Government" after having obtained previous sanction of that Government. It was further his case that the Deputy Commissioner Bhandara as the administrative head of the hospital entered into these contracts and as such was liable to pay the amounts due on the contracts. The plaint also averred that the Gondia Municipal Committee, Gondia, in the suit in respect of Bai Gangabai Memorial Hospital and the Dispensary Funds Committee in the other two suits were liable to satisfy plaintiff's claim inasmuch as they had taken the benefit of the work done under the contract which was not intended to be done gratuitously. On these averments the plaintiff impleaded the Provincial Government of the province of the Central Provinces and Berar as the first defendant, and the Deputy Commissioner of the Bhandara District, as the second defendant, in all the three suits. The Gondia Municipal Committee was impleaded as the third defendant in Suit No. 3-B of 1948, i.e., the suit in respect of Bai Gangabai Memorial Hospital. The Dispensary Funds Committee was impleaded as the third defendant in the other two suits. In both, the members of the Dispensary Funds Committee were also impleaded by name as defendants. Mr. G.K Tiwari, who as Deputy Commissioner, Bhandara, signed the agreement was impleaded in his personal capacity in all the three suits (Defendant No.4 in Suit No.3-B, Defendant No.9 in Suit No.2-B and defendant No.14 in Suit No. 1-B). The State of Madhya Pradesh was later substituted for the Provincial Government of-the Province of Central Provinces and Berar as the first defendant in all the three suits.

(2.) It was admitted in the plaint that the construction could (sic-not ) be completed within the time mentioned in the contracts but it was pleaded that the time was not the essence of contract and further, that the delay was due to the Deputy Commissioner's failure to supply the necessary materials in time and inclemency of weather and also that time was extended by the Deputy Commissioner. In all the three suits the plaintiff made his claim at a higher rate than the contract rate on the plea that the Deputy Commissioner had sanctioned these higher rates. For the purpose of the present appeals in which we are concerned solely with a question of law it is unnecessary to mention the various other averments in the plaint.

(3.) It is necessary to mention however that in Suit No.3-B, the plaintiff asked for a decree of Rs. 21,281/- with costs and interest from the date of suit against defendants 1 to 3, and in the alternative, against defendant No. 4, i.e., Mr. G. K Tiwari. In Suit No. I-B, the plaintiff claimed a decree for Rs. 12,000/ with full costs and future interest from the date of suit against 1 to 3 and or defendant No. 14 i.e., Mr. G. K. Tiwari. In Suit No. I-B, the plaintiff asked for a decree for Rs. 32, 028/with costs and future interest against defendants 1 to 3 and/ or defendant No.9, i.e., Mr. G. K. Tiwari.