KARNATAKA ELECTRICITY BOARD KPTCL Vs. M S ANGADI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of dismissal of the suit filed by the appellant in O. S. No. 66 of 1994 passed by the Prl. Civil Judge (Senior Division) at Jamkhandi, on 15. 10. 2001. Assailing the said judgment and decree of dismissal of the suit, the Executive Engineer of Karnataka Electricity Board, Belgaum division, has come up with this appeal.

(2.) BRIEF facts leading to this appeal are that the appellant/karnataka electricity Board now 'kptcl' is claiming damages of Rs. 1,51,000/- with interest thereon. Initially, the appellant/plaintiff issued a tender notification for construction of Masonry Earth and Hume Pipe Drain all round O. D. yard at 220 K. V. Station at Mahalingapura, Mudhol Taluk. The respondent/defendant submitted his tender as per the notification, which was accepted by the appellant and to that effect, entered into an agreement dated 22. 11. 1988 to complete the work within 4 months from the date of layout given to the defendant by the plaintiff/kptcl. The respondent ought to have completed the work on or before 7. 4. 1989 inspite of payment of part of the bill and also 200 bags of cement were also supplied and time was extended for completion of work undertaken by the respondent but he failed to complete and handover the same to the appellant/kptcl. Therefore, an agreement entered into on 22. 11. 1988 came to be terminated by the appellant and to that effect, a letter was communicated on 1. 1. 1992 thereafter, the said work was entrusted to another contractor by name S. C. Chikka Reddy, P. W. D. Contractor, bijapur, for Rs. 2,57,931-37 Ps. at 20. 7% excess cost over the amount put to tender based on S. R. rates of 1992-93. Therefore, the appellant/plaintiff board has incurred additional expenditure of Rs. 1,51,000. /- and has suffered loss due to the breach of agreement by the respondent/defendant. Before filing the suit, the legal notice came to be issued on 23. 9. 1993 calling upon the respondent/defendant to refund the amount i. e. , damages. Since the respondent failed to pay the amount, suit came to be filed. In pursuance of the notice issued to the respondent/defendant, he appeared through the counsel and filed a detailed written statement and denied the averments of the plaint contending that as per Clause 30 of the agreement/ex. P. 2 such disputes were to be referred to the Arbitrator to resolve the same, therefore, the suit filed by the appellant/plaintiff is not at all maintainable. The appellants have not made any attempt to refer the matter to the Chief executive Engineer (Major Works) which is premature. Therefore, the civil Court has no jurisdiction to entertain the suit. Since the appellant/ plaintiff has not supplied the materials as undertaken to complete the work within the stipulated period of 4 months, the appellant/kptcl itself is liable to pay 10% of the tender amount i. e. , Rs. 16,000/- on account of breach of contract. When there is a delay of more than 2 years in supply of materials like cement, there is no fault or negligence on the part of the respondent/defendant in completing the work entrusted to him and the appellant cannot even entrust the work to other contractor.

(3.) ON the basis of the available pleadings, the following issues were framed by the trial Court and additional issues as under:-