GUJARAT HOUSING BOARD Vs. S K GHADVI

JUDGEMENT

(1.) These two First Appeals are directed against the judgment and decree passed in Civil Suits Nos. 856/85 and 925/85 decided on 19th April 1990 by the City Civil Court at Ahmedabad.

(2.) In Civil Suit No.856/85, the plaintiff M/s.S.K.Gadhvi and Co. came with the case that it was a partnership firm registered under the Partnership Act; Shri S.K.Gadhvi, Shri M.K.Gadhvi, and Shri B.S.Gadhvi being its partners. Shri M.K.Gadvi and Shri B.S.Gadhvi retired from the partnership firm in the year 1973 and Shri S.K.Gadhvi became the sole proprietor of the said firm. On 22nd January 1974, the firm was reconstituted with fresh registration with the Registrar of Firms, consisting of Shri S.K.Gadhvi, Shri G.R.Gadhvi, Shri D.S.Gadhvi, and minor Rajendra S.Gadhvi as its partners. On 31st March 1975, Shri S.K.Gadhvi retired and rest of the partners continued in the firm which was reconstituted on 28th April 1980 when Shri G.R.Gadhvi and Shri B.S.Gadhvi retired, whereas Shri S.K.Gadhvi and Ranjanaben A.Taperia joined the said firm and the plaintiff firm filed the present suit. The plaintiff firm came with the case that the concerned Executive Engineer of the Gujarat Housing Board, i.e. defendant had invited tenders for constructing Tenements at Wadaj Group-I, at Ahmedabad. The plaintiff firm submitted the tenders for Rs.15,52,092.40ps against the estimated cost of Rs.12,22,120.00. Thereupon a regular agreement was entered into by the parties for execution of the work as aforesaid and the work order was given to the plaintiff by the Executive Engineer on 19th June 1973, but the date was reckoned to start from 21.6.1973. The work under the contract was required to be completed within 15 months, i.e. on or before 21st Sept.1974. The plaintiff claimed that the suit contract created certain reciprocal contractual obligations to be performed by the parties and that there was no express provisions in the contract fixing the order in which the said reciprocal obligations were required to be performed and therefore, the reciprocal obligations were required to be performed in terms of the nature of the transaction under Sec.52 of the Indian Contract Act. It was further the case of the plaintiff that the defendant miserably failed to perform the following reciprocal contractual obligations:

(3.) The defendant has sought to traverse the claim of the plaintiff by filing the written statement at Exh.10 denying all the allegations contained in the plaint and asserting that the Court had no jurisdiction to try and entertain the suit; that the suit was barred by the law of limitation and the suit notice was not legal and valid. According to the defendant, the plaintiff was required to carry out the work in accordance with the terms and conditions of the tender, i.e. the suit contract. According to the defendant, the materials were supplied as and when required by the plaintiff and whenever it was necessary, extensions had also been granted by the competent authority to the plaintiff. With regard to the extra items it was stated that the same were sanctioned and nothing had remained pending on that account. It was further the case of the defendant that the plaintiff had delayed the completion of the work beyond reasonable time even after the supply of materials as per Schedule-'A' by the defendant to the plaintiff and that the defendant was therefore entitled to levy compensation as per the suit contract and the authority was compelled to levy penalty after considering the progress of the work and there was no question of refund of the penalty imposed by the Department. The defendant also denied the allegation that the work was prolonged on account of the defaults on the part of the defendant. According to the defendant, the plaintiff failed to carry out and complete the work inspite of the notice given by the defendant to the plaintiff, as a result of which, the defendant was compelled to carry out and complete the work with the help of another contractor at the risk and cost of the plaintiff. That therefore, the defendant deducted an amount of Rs.93,826.00 from the final bill. The recovery of Rs.3,406.00 from the final bill of the plaintiff was perfectly justified and there was no question of refunding the said amount. The plaintiff's claim for interest in the sum of Rs.2,46,713.00 was not tenable at law. The defendant also stated that the plaintiff had accepted the amount of final bill in full and final settlement and therefore, the plaintiff's suit was required to be dismissed with costs. On the aforesaid pleadings, the issues were framed and the findings were recorded as mentioned below against each of the issues: