STATE OF MAHARASHTRA Vs. S N DAHAD

JUDGEMENT

(1.) THE State of Maharashtra, who were the defendants in Special Civil Suit No. 61 of 1972, on the file of Joint Civil Judge senior Division, Jalgaon, have preferred this appeal against the judgment and decree, dated 13th October. 1977. The decree had declared that the orders dated 30th June, 1969 and 5th July, 1969, passed by the authorities of the defendants-Government imposing a fine at the rate of Rs, 200/-per day on the respondents/plaintiffs, was illegal and not binding on the plaintiffs. The decree had also restrained the appellants/defendants from recovering the said fine, in pursuance of the said orders. The claim of the respondants/plaintiffs for a declaration that the action taken by the defendants under clause 3 (b) of the contract was illegal, and that the defendants were, therefore, not entitled to recover the difference in the cost of completion of the remaining work and the estimated cost, was dismissed along with the relief for consequential injunction. The defendants were directed to pay to the plaintiffs a sum of Rs. 6,456/-in final settlement of the suit contract including the amount of Security Deposit with future interest at 6% per annum from the date of the suit till oavment The respondants/plaintiffs had felt aggrieved by the disallowance of certain monetary claims by the learned Civil Judge. Thus the defendants have come in appeal in respect of the claim decreed and the plaintiffs have come in appeal with cross-objections only m respect of rejection of some monetary claims, which ought to have been accounted for by the defendant-Government and the declaration regarding application of clause 3 (b) of the contract

(2.) THE dispute in question had arisen out of a contract entered into by the authorities of the appellants-defendants with the registered firm of the respondents/plaintiffs. In pursuance of tenders dated 22nd June, 1966 (which were tendered on record as a part and parcel of the contract ex 56) for the construction of "pachora Water Supply Scheme-constructing inspection well, gallery, laying of pipe and jack well with circular pump house at head works. " The contract was entered into by the authorities of the defendants with the plaintiffs firm on 10th June, 1966. The work order was issued on the very same day. The entire work was to be completed within a period of 15 months from the date of the work order i. e. upto 10th September, 1967. The work in the contract was of a total value of Rs. 1,00,994. 00, According to the respondents/plaintiff time was not essence of this contract. The execution of the work was dragged on due to several reasons. Ultimetely, under a letter, dated 4-6-1969 it was reported that the Contractor had stopped the work altogether According to the plaintiffs, they had carried out substantial work worth Rs. 98,247. 17 ps. and some minor items had remained to be executed. According to them, the work was delayed because of the change in the site and other conditions created by the defendants. In this context it was further contended by the plaintiffs, that when the tenders were invited, the water flow in Oirna river was meagre and the cost of dewatering the said meagre flow was estimated on that basis. The work, particularly or inspection well and gallery was to be carried out in the river bed and it was to be done generally in the summer, i. e when the flow of water was meagre. some Government authorities from other Department had discharged water in a large quantity in order to reduce the level of the water in girna dam, for the purposes of effecting some repairs to the gates of panzan dam in the summer of 1967-68. As a result, the flow of water in the river bed, at the relevant spot, had increased considerably and, conseauently, there was substantial increase in the original de-watering work When the plaintiffs had requested the Government authorities to comoensate them for that extra work, those requests bad fellen on dert ear The cost of the work of dewatering had consequently Increased to an enoromous extent The expectation of the defendants that the plaintiffs should carry out the work, even under the changed circumstances, was unreasonable and indeed, contrary to the terms of the contract. Instead of finding out any remedy for the wrong that was being done, the Executive Engineer, Public Health Works Division at Jalgaon, Insisted on the plaintiffs completing the work, and ultimately, proposes in a letter dated 30th June, 1969 to impose on the plaintiffs a fine of Rs. 200/-per day with retrospective period from 16th June, 1969. The Superintanding engineer upheld his proposal on 5th July, 1969. The plaintiffs, therefore, contended that the aforesaid action was arbitrary, unwarranted, beyond the authority, illegal and mala fide. The plaintiffs contended further, that they were always ready and willing to perform their part of the contract and to complete the remaining work, and they had, in fact, requested the authorities of the defendants to carry cut the work of excess dewatering initially at the cost of the plaintiffs, without prejudice to the rights of the parties, in that behalf. Their said proposal also was turned down. It was alleged that the Government authorities were obstinate and wanted to carry out the remaining work departmentally, and even when they had taken up such works departmentally, they were unable to carry out the same on account of the adverse circumstances on the site. The decision to recover from the plaintiffs fine to the tune of Rs. 10,000/- and to carry out the work departmentally, in spite of the willingness of the plaintiffs, was unwarranted and illegal. Even then, the Executive Engineer, Public Health Works Division, Jalgaon, chose to have recourse to Clause 2 (b) of the contract and to carry out the work departmentally at the cost of the plaintiffs. Contending that the defendants were not entitled to do so, the plaintiffs prayed that the final bill be ordered to be prepared without directing the aforesaid recoveries as against the plaintiffs The plaintiffs had issued a notice under Section 80 of the Code of Civil Procedure, calling upon the defendants not to continue with the breach of contract and not to do any work departmentally, but they continued in perpetrating the wrong, and in doing so, they utilised cement porous pipes belonging to the plaintiffs worth Rs. 1,300/ -. The plaintiffs contended that they were entitled to recover that amount of rs. 1,300/-, as also Rs. 3,000/- towards the extra cost incurred by them for dewatering. It was also contended that on account of change of site, the plaintiffs were required to do additional work of excavation of pipe gallery to the extent of 10,800 Cubic feet, worth Rs. 2,440/ -. They maintained that even after the excavation work was completed, on the changed site, the same was washed away due to increase in the water level, causing a further loss of Rs. 8,320/ -. The plaintiffs contended that, thus, they were entitled to recover from the defendant Rs. 14,720/-, as detailed below <FRM>JUDGEMENT_167_MHLR2_1994Html1.htm</FRM> The plaintiffs also contended that the deposit of Rs. 4,040/- made by them to the dependents was sought to be forfeited by the defendants and they were entitled to recover the same in addition to the aforesaid claims,

(3.) THE defendants resisted the suit contending that the firm of the plaintiffs was not a registered firm, that time was not essence of the contract, that the tender in question was of B-2 type, that the time limit for the suit work was 15 months from the date of issue of the work order, and that the plaintiffs were to complete the work by. 6th of September, 1967. They maintained that despite the five extensions granted to the plaintiff, they did not complete the work. They denied that the non-completion of work was due to change of site or letting of more water in the river bad from the Dam. It was, further, maintained that though the cost of the work was Rs. 1,00,994/-, the plaintiffs had quoted the total cost at rs. 1,37,246/- without specifying the rate for each item. According to them, the plaintiffs had completed work worth Rs. 97,649/- and the remaining work was worth Rs. 54,700/ -. They denied that the remaining work was in the nature of minor work. The defendants admitted that the suit contract did not mention the quantity of the flow of water in the river, but the plaintiffs were aware Of the extent of discharge of water in the river bed, when their tender was accepted. They maintained that the work of dewatering was by itself a complete job and it was not on the basis of flow of water. They denied that the estimated cost and the quoted cost were on the basis of meagre flow of water, at the work site. They denied that the work of the inspection well and the gallery was to be done only in the summer, i. e. when the water flow was less, because, according to them, the agreement was not made on those lines. The change in circumstances was denied. . Excess flow of water was denied and the demand of the plaintiffs for the extra amount of cost incurred by them, due to the additional water flow, was also denied. They admitted that the plaintiffs had, actually, completed four wells, but maintained that they could bail out the necessary water for that work at the estimated cost of Rs. 2,000/- per inspection well. They denied that the performances of the contract was made imposssible on account of the excess flow of water. They admitted that the plaintiff had laid in river bed four well, 96 fit of infilteration gallery in the said river bed, but maintained that the remaining length of 380 ft. was left incomplete! according to the defendants, the plaintiffs had, for their benefits, working seasons of 1967, 1968 and 1969, available on account of the extensions granted, and that, even then, the work was left in complete in the year 1969 and that, therefore, they were obliged to have recourse to Clause 3 of the agreement. A notice in that behalf was issued to the plaintiffs on 25-11-1969, informing the intention of the authorities to act under clause 3 (c) of the contract. It was maintained that in view of the invocation of that clause, the plaintiffs were not entitled to claim any compensation for any loss sustained by them, by reason of having purchased or procured any materials, etc. The action of levying fine was sought to be justified, and it was contended that though the plaintiffs were to construct temporary coffer dams to divert the flow of water, no such coffer dams were, in fact, constructed. It was maintained that the defendants were entitled to have the work completed at the cost of the plaintiffs. They maintained that the final bill was since prepared and it was a minus bill showing recovery of the amounts from the plaintiffs towards the cost of unfinished works, material supplied, to the plaintiffs and the amount of penalty. The details of the claims made out by the plaintiffs In the plaint, were denied, and it was contended that the defendants were entitled to forfeit the security deposit of Rs. 4,040/-, They prayed that the suit be dismissed with costs.