STATE OF UTTRANCHAL Vs. HUKUM SINGH

JUDGEMENT

(1.) This First Appeal has been-filed to set aside the judgment and decree dated 3-5-1985 passed by Sri V. C. Agrawal, the then learned District Judge, Uttarkashi in Original Suit No. 6 of 1982 decreeing the suit of the plaintiff/respondent for the recovery of Rs. 26,608.11 with proportionate costs and he further directed pendente lite and future interest at the rate of 9% per annum.

(2.) Brief facts for the disposal of this appeal are that a suit was filed for the recovery of Rs. 40,000/- for the work done by the plaintiff/respondent for the construction of Badali Canal, Job No. 2, District Uttarkashi. According to the plaint allegations, the Irrigation Department, Uttarkashi invited the tenders for the construction of the said canal. According to the plaintiff/respondent, tenders for Rs. 1,31,469/- was accepted by the defendant/appellant for the execution of the said work. After accepting the said tender on 16th July 1978, an agreement was executed in between the plaintiff/respondent and the defendant/appellant. It was also agreed in between the parties that the work to be started from 16th December, 1978 and it was to be completed by 15th August, 1979. Time was the essence of the contract. It was also provided under the Contract that the cement had to be supplied by the defendant/appellant. The cost of which was to be deducted from the bills of the plaintiff/respondent. The plaintiff/respondent had to deposit the earnest money as agreed between the parties. The plaintiff/respondent went to the site on 18th December, 1979 alongwith labourers but he found that there was no signs of cutting at the site and the plaintiff/respondent made a request to that effect to the defendant/ appellant. When plaintiff/respondent reached at the site on 18th December, 1979, he found that there were a number of trees of forest department standing on the said land and the plaintiff/respondent informed the defendant/appellant to have the trees cleared so that the work may be executed. The said trees were not cleared till 18-8-1979 till the date when the work was to be completed. It was further alleged by the plaintiff/respondent that the defendant/appellant did not provide the cement till 17-2-1979 in spite of the repeated requests made by the plaintiff/respondent to the defendant/appellant. Only 60 bags of cement were issued to the plaintiff/respondent in the month of February, 1979. It was further alleged that the drawings of patra cutting given to the plaintiff/respondent did not tally with the spot and the officials of the Irrigation Department did not co-operate with plaintiff/respondent. The plaintiff/respondent further alleged in the plaint that the trees were not removed and cement was also not provided to him and he could not complete the work till 15-8-1979. The plaintiff/respondent also requested to the defendant/ appellant to measure the work done but no heed was paid by the department. The measurement work taken on the back of the plaintiff/respondent by the defendant/appellant ultimately on 23-5-1981. The remaining work was entrusted to another contractor without rescinding the contract of the plaintiff/respondent and the another contractor disfigured the work already done by the plaintiff/r.espondent. The plaintiff/ respondent had also alleged that he had done work of Rs. 84,060/- and only Rs. 46,673/- were paid. After deducting Rs. 1,350/- for cement, the plaintiff/respondent was entitled to get Rs. 36,037/- besides Rs. 12,214/- as earnest money. The plaintiff/ respondent served a notice upon the defendant/appellant but the defendant/appellant did not pay the claimed amount as such, suit for recovery of Rs. 40,000/- was filed before the trial Court.

(3.) The defendant/appellant filed the written statement alleging therein that the time was not the essence of the contract. The plaintiff/respondent did not start the work for which a notice dated 3-1 -1979 was issued to him. It was further alleged in the written statement that it was the bounden duty of the plaintiff/respondent to construct the pillars and level khuntis were to be fixed after that, which the plaintiff/respondent failed to do so. The defendant/appellant further alleged in his written statement that no trees existed at the site. The plaintiff/ respondent had wrongly claimed that he had completed 95% of patra cutting work. Pursuant to that agreement, the defendant/ appellant supplied 60 bags of cement on the demand of the plaintiff/respondent and that quantity was sufficient for the construction of the pillars. The defendant/appellant was not guilty for the delay in doing the work. The defendant/appellant further alleged that the plaintiff/respondent was not willing to work further and he was guilty for the delay of doing the work. The defendant/appellant also stated in his written statement that the work was measured by the defendant/appellant in presence of the plainliff/respon- dent and it was entered in the measurement book rather he refused to sign the same. At the request of the plaintiff/respondents, the work already measured by the J. E., Hat Ram were checked again in the presence of the plaintiff/respondent by the Assistant Engineer In-charge and that measurement were found correct. Alter inviting the plaintiff/respondent, J.E., was sent again to measure the work at the site on 23rd May, 1981 but in spite of the service of the letter: the plaintiff/respondent did not reach at the spot. Thereafter, the contract of plaintiff/respondent was rescinded by the defendant/appellant and the remaining work was entrusted to another contractor. The defendant/appellant had also alleged in his written statement that the plaintiff/respondent did the work of Rs. 62,536/- only and a sum of Rs. 46,673/- had been paid to him including the cost of cement. The defendant/ appellant further alleged that the remaining amount of Rs. 15,863/- was to be adjusted against the other items which has been written in the written statement. It was further alleged that the appellant had suffered a loss of Rs. 52,519/- and as such the plaintiff/respondent is not entitled to get the security amount from the defendant/appellant.