MUNICIPAL CORPORATION, INDORE Vs. BALURAM

JUDGEMENT

(1.) Being aggrieved by the order and final decree dated 23.8.1990 passed in Civil Suit No. 5-B/78 by XI Additional District Judge, Indore, whereby appellant has been directed to pay the balance amount of Rs. 1,39,562.47 paise with interest @ 6% per annum to the respondent, the present appeal has been filed.

(2.) Short facts of the case are that the respondent filed a suit against the appellant for realization of a sum of Rs. 2,72,571.07 paise on 19.6.1978 alleging that lenders were invited by the appellant for construction of apron at Yashwant Sagar Dam and other civil works which was submitted by the respondent alongwith other contractors. On 24.2.1973 appellant informed the respondent that the tender submitted by the respondent has been accepted by the appellant vide order dated 21.2.1973 and respondent was called upon to execute the agreement. On 13.3.1973 the agreement was executed by the respondent in favour of the appellant. According to the k agreement respondent was to complete the work as per specification on or before 10.5.1974 and in case there is a default then the appellant was at liberty to get the work done at the cost of the respondent and the amount could have been recovered from the security deposit of the respondent and the damages can also be recovered from the property of the respondent. It was also one of the terms of the agreement that construction of ABCD portion of the apron as shown in the map would he completed before 31.5.1973.

(3.) Further case of the respondent is that as per agreement, steel and cement was required to be arranged by the respondent, but because of the non-availability of the cement in the open market the appellant was bound to extend the period of contract for completing the work. Further case of the respondent was that since the cement was not available in the open market, therefore, repeatedly request was made to the appellant to supply the cement vide letters dated 27.3.1973, 29.3.1973, 13.4.1973 and 27.4.1973, but inspite of repeated requests cement was not supplied by the appellant, therefore, the construction work of ABCD portion of apron could not be completed on or before 31.5.1973. It is further alleged that on 8.6.1973, 966 bags of cement were supplied by the appellant to the respondent, with a further direction that another lot of cement will follow soon. After receipt of the cement the work of ABCD portion of apron at Yashwant Sagar Dam was completed by the appellant upto 22.6.1973 which was tested by GSITS and report was given on 23.6.1973 and the report relating to strength of the work was also given by the same Institute on 3.7,1973. It was alleged that due to unusual heavy rains at Indore between 8.7.1973 and 9.7,1973,25 syphons of Yashwant Sajjar Dam were opened as a result of which heavy pressure of water fell on recently repaired apron and damaged it.