STATE OF MAHARASHTRA Vs. SAIFUDDIN MUJJAFFARALI SAIFI

JUDGEMENT

(1.) THE State of Maharashtra and its Officers have preferred this appeal against the judgment and decree passed by the Civil Judge, Senior Division, Dhulia, in Special Civil Suit No. 17 of 1984, directing the appellant/state to pay Rs. 2,18,755/-, together with six per cent interest from the date of filing of the suit till realization to the respondent/plaintiff. The matter arises as follows. The State proposed to construct the bridge across river Serpani at Mile No. 76 (622 Kms.) on Surat-Dhulia-Edlabad-Nagpur road. Accordingly, the tenders were invited and in response thereto various contractors submitted their tenders on due date and in time. On the scrutiny of those tenders, the tender of the plaintiff was found to be lowest as he had quoted rates at 4. 91 per cent above the estimated rate. The plaintiff had attached certain conditions while submitting the tender, but later on withdrew those conditions and submitted the letter to that effect. Briefly, therefore, the tender of the plaintiff was accepted at the rate 4. 91 per cent above the estimated amount of the tender. It seems that the tender was published for Rs. 4,55,273/-, but in pursuance of the acceptance of the tender of the plaintiff, the estimated cost of the work rose to Rs. 4,77,627. The appellant/defendant No. 2 issued the work order AB/t/4781/78 on 5-7-1978 and it is not in dispute that the plaintiff started the work of the construction of the bridge across the said Serpani river. The prescribed time limit for this work was 18 months which on the basis of 5-7-1978 was 4-1-1980. It is, however, not in dispute that this date remained on paper and on account of several circumstances beyond the control of the plaintiff as well as the defendants, the construction of the bridge was completed on 15-2-1981.

(2.) THE allegations of the plaintiff are that during the execution of the work, the plaintiff found several defects in putting up the foundation both for abutment and piers. The excavation had to be done deeper than the designed level and this necessitated further dewatering in the river bed. The plaintiff, therefore, wrote a letter to defendant No. 2 on 25-10-1978 pointing out the difficulties in respect of excavation of foundation and dewatering. It was stated in the said letter that the rates in the tender for this work were far less than the cost which he was required to incur for carrying out this work. To the details of this letter, we shall come later, but suffice it to say at this stage that the differences started right from 24-10-1978. As usual, the appellants did not respond to this letter and this was followed by another letter, from the plaintiff dated 2-10-1979, inter alia, making the same grievance about the demand for rise in rates for the works indicated above. It is further contended that the defendant No. 2 under his letter No. E-8/nw/7594, dated 2-11-1979, replied to the plaintiff that the excavation was made in the soft strata as well as hard strata and thus the total quantity of excavation for foundation had not increased. It may be stated here that in the tender there was no reference whatsoever to the soft strata and digging had to be done or excavation had to be done, it was inhard strata. With this reply, the differences multiplied as the respondent/plaintiff could envisage that the appellants/defendants were determined not to pay him as per his demand. The appellant/defendant emphasized that the respondent/plaintiff could not demand the rate for hard strata. There was a classification in strata and the payment could only be made according to the hard strata and soft strata. It must be stated here that for hard strata, the rate was Rs. 30/- per cubic metre. There was no reference whatsoever to soft strata, but the appellant has relied upon, for that purpose, on District Scheduled Rates (D. S. R. ). For this purpose, reference was made to Clause 38 of the Agreement read with the instructions contained in Government, B. and C. Department Circulars/memorandums No. CAT/1268/59382, dated 14-3-1974 and No. CAT/1268/29382/q-Desk-2, dated 22-2-1978. Attention of the plaintiff was also drawn to specification item No. 2, which, according to the appellant/defendant clearly provided that the rates specified in the specification No. 2 included even the additional dewatering sequal to increase in depth. Briefly stated, the stand that was taken by appellant/defendant No. 2 was that under the stipulated conditions of tender, the plaintiff was not entitled to the additional amount or extra rates for excess excavation and dewatering.

(3.) TURNING to the further contentions raised by the plaintiff, it is stated that the plaintiff was expected to excavate 431. 20 cubic metres for foundation in hard strata including shoring and structuring at the above stipulated rate, but the defendants called upon him to go deep in the matter of excavation. The plaintiff has contended that this was strictly done on the implied consent or rather implied persuasion by defendant No. 2. Besides the above letters, the plaintiff sent further letters on 14th December, 1978 and 1-2-1979 claiming Rs. 75/- per cubic metre for the purposes of excavation. This was based on the reasoning that he had to employ additional labours. The defendant did not dispute this position. On the other hand, according to the plaintiff, the defendant No. 2 promised the plaintiff that he will be paid the difference at the claimed rates and as per the instructions of the Executive Engineer, the plaintiff completed the excavation for foundation to the additional depth of 1. 81, 0. 31, 0. 01. 1. 06 R. M. in the pier and 1. 78/1. 51 R. M. in the abutment, with the result that the total additional excavation for foundation in hard strata was 1186. 61 cubic metres. According to the plaintiff/respondent, the defendants had accepted the liability for extra payment and admitted the extra quantity of work done by him. He disputed the strata classification as suggested by defendant No. 2. In pursuance thereof, the plaintiff accepted the running bill under protest and without prejudice to his legal rights and contentions. The plaintiff had claimed Rs. 40,972/- extra for excavation at the rate of Rs. 75/- per cubic metre.