STATE OF GUJARAT Vs. SHYAMJI MAYA

JUDGEMENT

(1.) The present appeal has been filed by the appellants-State original defendants being aggrieved with the impugned judgment and order rendered in Special Civil Suit No. 47/83 by the learned Civil Judge (S.D.), Kutch at Bhuj dated 7.1.1989 on the grounds stated in the memo of appeal, inter alia, that the judgment and decree is contrary to the material and evidence on record. It is also contended that the court below has failed to appreciate the oral evidence. It is contended that the court below ought to have appreciated that the material used by the respondent-original plaintiff was not of the specified size and therefore a notice was issued for the same. Thereafter, the respondent-original plaintiff had agreed to get the material according to the appropriate size and grade and thereafter also the respondent-original plaintiff did not carry out the work of watering and rolling. Therefore, it is contended that the court below has erred in coming to the conclusion that the department having carried out the watering and rolling work at the site, the material used by the respondent-original plaintiff (contractor) was of the specific quality. It is also contended that the court below ought to have appreciated that the respondent-original plaintiff (contractor) was informed by the department vide letter dated 12.5.1983 to complete the work, and as it did not start the work and was in default, the respondent-original plaintiff was not entitled for any amount as claimed.

(2.) Heard learned AGP Shri P.P. Banaji for the appellants-State and learned counsel Shri J.R. Nanavati for the respondent-original plaintiff.

(3.) Learned AGP Shri Banaji has referred to the papers and the impugned judgment and submitted that the respondent-original plaintiff (contractor) was given the work which it was required to complete within the stipulated period. However, it has not completed the work and had also not used the material specified in the contract and therefore notices were issued asking the respondent-original plaintiff to use the specified material and complete the work. Learned AGP Shri Banaji submitted that in fact the Vigilance Commission had verified and made the report and laboratory testing of the material was also made. He also submitted that as per the contract, the respondent-original plaintiff was required to do the work of metal moram whereas, admittedly, it had not used the material as it was not as per the specification. He has also referred to the evidence including the deposition of the Executive Engineer, Jr. Engineer and the respondent-original plaintiff. He pointedly referred to the letter exh.70 and submitted that by the said letter the respondent-original plaintiff was asked to stop the work. Learned AGP Shri Banaji submitted that it clearly suggests that the material was not according to the specification and even the progress of the work was slow. He submitted that by registered letter respondent-original plaintiff was asked to start the work again. Therefore, as the respondent-original plaintiff had not completed the work within the stipulated period and as there was no explanation, the respondent-original plaintiff was liable and therefore it is not entitled to the claim made in the suit. He submitted that the court below ought to have appreciated these aspects and the material and evidence on record. He submitted that as the relevant aspects including the material and evidence have not been considered, the judgment and order is erroneous. He has also referred to the correspondence including exhibits 126, 127 and submitted that not only the respondent-original plaintiff had not completed the work within the stipulated period, but even the material was not according to the specification. He strenuously submitted that even thereafter an opportunity was given to the respondent-original plaintiff by notice to use proper material and complete the work which he has failed. He submitted that the court has failed to appreciate this aspect and merely because the watering and rolling work was done by the department, the presumption has been made that the material was as per the specification and grading, otherwise such work would not have been permitted. He has therefore submitted that the present appeal may be allowed.