EXECUTIVE ENGINEER Vs. SUBHASH VASUDEV TILVE

JUDGEMENT

(1.) THE defendants have filed the above appeal against the Judgment, Order and Decree dated 27/09/2002 passed by the learned Civil Judge Senior Division, Bicholim, ("Trial Judge", for short) in Special Civil Suit No. 17/1999. THE Plaintiff of the said suit has filed the cross objection.

(2.) THE parties shall hereinafter be referred to in the manner in which they appear in the cause title of the said Special Civil Suit No. 17/1999.

(3.) THE defendants contested the suit. In their written statement, the defendants have briefly stated as under:- THE plaintiff did not attend the office of the defendant no. 2 in order to see the line out of the work and the plaintiff was sent a letter on 05/01/1996 calling upon him to attend the office. THE site was handed over to the plaintiff on 10/01/1996 and the plaintiff had to carry out the renovation of the old canal but was delaying to start the work and hence a letter dated 28/2/96 was issued to him. It is false that the paddy fields were cultivated and water was flowing through the canal and therefore the plaintiff could not carry out the work. It was the duty of the plaintiff to study the condition prior to quoting. A letter dated 14/2/96 was sent to the plaintiff as he failed to commence the work. THE reply dated 12/03/1996 sent by the plaintiff confirms his ignorance in quoting the tender. Since the grounds stated in reply dated 12/03/1996 were not acceptable to the defendants, the termination notice dated 4/4/1996 was issued to the plaintiff. THE plaintiff was further allowed to go ahead with the work after 04/04/1996 in order to give him an opportunity to achieve good progress of the work before the monsoon and a telegram was also sent to him on 23/05/1966. THEre was inordinate delay on the part of the plaintiff to start the work and to achieve the progress on the work in spite of an additional opportunity given to him. It was beyond the capacity of the plaintiff to complete the work allotted to him and therefore he was asked to stop the work on 12/06/1996 and to go for the joint measurement to be taken on 26/06/1996. THE plaintiff was solely responsible for the termination of the contract which was done within the clauses of the agreement. THE plaintiff was given sufficient opportunity to show progress of the work as per clause 2 of the agreement. As the work was not completed in terms of the contract there was heavy lapse on the part of the plaintiff and the work had to be stopped. THE defendants had no other alternative than to invoke clause 3(c ) of the contract. Since the defendants were paying for the completed contractual work, they had right to ask the plaintiff to submit materials for testing even after the termination of the contract. It is false that by their conduct, the defendants have treated the rescission of the contract as having no legal effect. THE plaintiff was present for the measurements at the site on 26/06/1996 but he refused to sign the measurement book. THE defendants are not liable to pay any compensation to the plaintiff and they have rightly forfeited the earnest money deposited, under clause 3(c) of the contract.