STAE OF GUJARAT AND ORS Vs. HITESH CONSTRUCTION

JUDGEMENT

(1.) THIS appeal under Section 100 of the Civil Procedure Code is at the instance of the original defendants against whom the respondent original plaintiff filed Special Civil Suit No.93 of 1990 for recovery of Rs.4,63,328.80. It is the case of the plaintiff that the plaintiff was awarded public contract for construction of structure (except acquaduct) on Karjan Left Bank Main Canal from Ch.43.175 to 51.005 kilometers. For the said purpose, agreement was executed between the parties and the plaintiff was required to commence the work from 29.11.1983 and the same was to be completed within a period of 24 months i.e. on or before 28.11.1985. As per the agreement, the work contract was of Rs.26,10,020.63. It is further case of the plaintiff that the parties were to perform mutual contractual obligation. However, due to delay, hindrance, breaches and failure on the part of the defendants, the work could not be completed within stipulated time limit. The defendants had not acquired the entire site and, therefore, could not give line out of the project site to the plaintiff. The defendants also were required to give designs, drawings, instructions etc. but the same were not provided to the plaintiff. The defendants were also required to supply material as per Schedule A to the plaintiff, however, the same was not supplied to the plaintiff. The plaintiff was always ready and willing to abide by all terms of the contract within the time limit, however, because of the fault on the part of the defendants, the work could not be completed within stipulated time period though the plaintiff was ready and willing to carry out the work if time limit was extended. However, instead of accepting the demand of the plaintiff for extension, the defendants resorted to action of termination of contract. The plaintiff then called upon the defendants for compensating the plaintiff for future in execution of the work and though there were meetings between the parties, there was no amicable settlement between the parties and ultimately, the defendants did not extend time limit and instead proceeded with illegal action of termination of contract. It is further case of the plaintiff that during the pendency of the contract, the defendants did not pay legitimate dues to the plaintiff. The plaintiff was, therefore, constrained to issue legal notice dated 09.06.1986 demanding the payment from the defendants. However, the defendants did not settle the bill of the plaintiff and, therefore, the plaintiff had to file Special Civil Suit No.30 of 1987 for appointment of Arbitrator and the learned Civil Judge (S.D.) was pleased to appoint Arbitrator to arbitrate upon the disputes between the parties. It is further case of the plaintiff that after the above suit was filed, the defendants passed an order dated 13.02.1987 terminating the contract and since such termination of contract was illegal and since the plaintiff was entitled to claim amount for the work done, the plaintiff filed the present suit for the recovery of the due amount with interest at the rate of 20% from filing the suit till its realization. The suit of the plaintiff was resisted by the defendants by filing written statement at Ex.15 inter alia stating that the suit was bad for want of notice under Section 80 of the Civil Procedure Code. The plaintiff was required to do twelve kinds of work under tender and they were not connected with each other and, therefore, it was the duty of the plaintiff to start the individual work, that the plaintiff was already handed over the possession of the site and the defendants had not wasted time for handing over such site to the plaintiff, that the plaintiff was also supplied necessary material as per the terms of the contract and it was the plaintiff who committed mistake by not taking over the possession of the material within time limit and by not supplying the material to the labourer within time and, therefore, plaintiff was responsible for not completing the work under the contract within stipulated time. It is further stated that it was the plaintiff who was responsible for the breach of contract. The defendants have also stated in written statement that the suit is based on the agreement between the parties and as per the said agreement, the dispute is first required to be referred to the Arbitrator and before resorting to the arbitration, the Court is not competent to hear the suit and, therefore, the suit deserves to be dismissed.

(2.) ON the basis of the pleadings, the learned trial Judge framed the issues at Ex.15A as under.

(3.) BEFORE the trial Court, the plaintiff examined one witness at Ex.125 and also adduced documentary evidence. Similarly, the defendants also examined one witness at Ex.195 and adduced documentary evidence.