STATE OF MAHARASHTRA Vs. R N PATTIWAR

JUDGEMENT

(1.) By this appeal, filed under Section 96 of the Code of Civil Procedure, the State of Maharashtra and its Executive Engineer, P.W. Division, Chandrapur, defendants in Special Civil Suit No. 3/1979, have challenged the judgment and decree dated 31/12/1985 delivered by the Civil Judge, Senior Division, Chandrapur therein asking them to pay to the plaintiffs( present respondents) an amount of Rs. 7,09,021/- together with future interest @ 12% per annum from the date of suit till its realization. This Court has while admitting the first appeal on 2nd May, 1986 directed the present appellants to deposit the amount as per decree and the present respondents were permitted to withdraw the said amount after furnishing bank guarantee.

(2.) The plaintiffs Nos. 1 to 3 ( present respondents No.1 to 3) are stated to be partnership firms, duly registered with Indian Partnership Act. We are not concerned with the situation of the said firms in the present matter. The firms appeared to be approved contractors and undertaking the work of construction, etc. The State of Maharashtra decided to raise road level between Chimur and Warora, as the said road would have been submerged because of Chargaon Nallah Project. Because of urgency, the Government divided the work and invited quotations on 16/2/1976.

(3.) Nine plaintiffs submitted their quotations, which were approved in due course and agreement were also entered into between the parties. The plaintiffs filed civil suit after serving notice under Section 80 of the CPC, contending that they could not lift the earth required for raising the road level from 50 metres lead as mentioned in quotations and hence, they were required to undertake extra leads & lifts. They also contended that the rates mentioned in quotation by them were for completion of work manually, but later-on Department insisted for early completion of work, the plaintiffs should use machineries supplied by the Irrigation Department. The Department also agreed to charge normal rate for lending the machineries to the plaintiffs. The machineries could not be used as by the side of road there were pits and ditches and hence, to use machineries, those pits and ditches were required to be filled in, a slope or gradual gradient was required to be prepared for using the machineries. They contend that for this additional earth work was required to be done. Not only this soil was required to be brought from distance beyond 50 meters, additional expenditure was incurred by the plaintiffs for such long leads/lifts and though they were promised reimbursement for such additional leads and additional lifts, the amounts were not paid. They also contended that the Department promised that water was available within half kilometer, but in fact the plaintiffs were required to procure water with the help of tankers from the leads of 5 kilometer entailing additional expenses for transportation. In view of the understanding given to them that the water was available within 1.5 kilometers, the plaintiffs claimed that they submitted quotations by calculating rate accordingly. But when they realised the long leads required to be followed, they brought the difficulty to the notice of the Executive Engineer, who directed plaintiffs to procure water from wherever available and they would be paid at CSR rate for the said extra leads. The plaintiffs, therefore, claimed amount on account of such transportation of water also. They also claimed that CSR rate made applicable in their case was not correct and it was less by Rs.1.53 per cubic meter, on finishing earth work. Hence, they pointed out that by applying the correct rate of Rs.6.47 per cubit metre certain amount in addition to above amount was also receivable by them from the appellants. They also claimed refund of security amount from the appellants. In addition to these four claims, there were also some other claims, but those claims are already rejected. The trial Court framed the issues and after recording evidence passed the decree as mentioned above. The issues framed by the Trial Court are reproduced below for ready reference. Issues and findings