UNION OF INDIA Vs. KHETRA MOHAN BANERJEE

JUDGEMENT

(1.) This appeal is from a decision by Mitter, J. In a suit brought by the respondent Khetra Mohan Banerjee, a contractor, against the appellant the Union of India for a sum of money said to be due to him for work done in accordance with a contract, by which the learned Judge after recording his decision on several of the issues has directed a reference for the ascertainment of the amount due and payable by the defendant to the plaintiff, after

(2.) Briefly stated the plaintiff's case as mentioned in the plaint was that tender having been invited on behalf of the 'Government of India, Public Works Department, in P. W. D. Form No. 6 for construction of 20 officers' quarters in Calcutta, he submitted his tender and this was accepted, but that ultimately he signed contract documents in P. W. D. Form No. 7; that after work was commenced on and from the 11th of May 1945 on plans and specifications and drawings which were given to him on the 11th of May 1945, the work he was asked to do and which he actually executed differed considerably from the original plans, specifications and drawings, and that 145 items of the 170 items altogether executed being absolutely new and different, he is entitled to get his remuneration for these items on the basis of rates and analysis submitted by him. For the remaining 25 items the plaintiff claimed remuneration at 15 per cent over the tender rates "on account of the increase of wages of labour etc." His case was that the analyses submitted by the plaintiff had been accepted on behalf of the Government of India and/or Governor General in Council and his claim at 15 per cent increase had also been so accepted. The total amount due, according to him, for the work done on the basis of the rates as claimed applied to the quantity of work done for the different items, amounted to Rs. 6,02,475/-. After giving credit to Government for the sum of Rs. 1,66,040-7-0 said to have been received in the shape of materials and Rs. 1,46,136-4-0 received by cheques, he put his claim at a sum of Rs. 3,11,895-5-0 and for recovery of this amount he brought the present suit. The defence contention was that the plaintiff was bound by the terms of the agreement as executed by him in P. W. D. Form No. 7 but that he was not entitled to the rates submitted by him as analyses rates as these analyses were never accepted. The defendant also denied that the plaintiff was entitled to an enhanced rate of 15 per cent over the tender rates in respect of any item. It was, further, urged that the work done fell under 116 items -- 27 of the items, being contained in the schedule to the agreement, 16 being altered items of work done under Clause 12, 4 being substituted items of work under Clause 12A and 69 more being additional items of work done under Clause 12A of the agreement. The defendant contended that on the rates accepted and sanctioned by the competent authority after due consideration of the analyses of rates submitted by the plaintiff, the plaintiff was entitled for his work to a sum of Rs. 3,55,009/- out of which he had already received Rs. 2,03,397-4-0 towards materials supplied for work and Rs. 1,46,139-4-0 by cheques and only an amount of Rs. 6,472-8-0 remained due to the plaintiff. It appears that at the trial the plaintiff based his case on the contract as in P. W. D. Form No. 7 and claimed analyses rates for 145 items on the basis of Clause No. 12 in that contract and an enhanced rate for 25 items on the basis of Clause 12A thereof. It also does not appear to have been seriously disputed that 145 items of work were work of the nature for which the contractor was entitled to submit analysis rates within 7 days of the placing of the order therefor. The question raised in issue no. 2 was, therefore, the most important question raised, namely, whether the analyses of rates submitted by the plaintiff were accepted by the defendant and whether these analyses were binding on the defendant. Both parts of the question were answered by the learned Judge in the affirmative. The answers given by him to the different issues were as follows:-- Issue No. 1 -- The contract between the parties was embodied in the document referred to in this suit as P. W. D. Form No. 7. Issue No. 2-- The analyses of rates submitted by the plaintiff must in my view be held to have been accepted by the defendant. The rates mentioned in the analyses were binding upon the defendant provided there were no arithmetical or other manifest mistakes. In view of the extremely fair attitude taken up by the learned standing counsel on behalf of the defendant that the plaintiff should be paid for the work concerned at reasonable rates which I regard as market rates and in view of my direction in that regard the finding that the analyses were binding upon the defendant is of little practical effect. Issue No. 3-- It is common case that 25 items of work were done as per schedule to the contract. In paragraph 10 of the written statement it is stated that 27 items of work were in accordance with the schedule to the tender. This is a mistake. It should be 25 as paragraph 12 shows. The plaintiff furnished a list showing what items were done according to the schedule to the tender. This statement is supported by the plaintiff's evidence and can, therefore be taken as containing items of work for which the rates quoted in the tender should be applicable. If the plaintiff is able to prove his case under Clause 12A then he will be entitled to add not more than 15 per cent on account of labour charges for excess quantities alone. Issue No. 4-- The rest of the items, 145 in number must come under Clause 12 of the contract, I have already indicated the method to be employed in determining the value of this quantity of work. Issue No. 5-- I have already dealt with this topic. It is not necessary to answer the issue as framed. I have also held that there was no need for any decision final or otherwise by the Superintending Engineer. Issue No. 6-- I have already indicated what the plaintiffs present case is under Clause 12A of the contract. Issue No. 7-- My comments with regard to this issue are those I have already made in connection with issue No. 5. It being common case that the rights of the parties are to be governed by contract, issue No. 8 does not arise for consideration. Issues Nos. 8 and 9 -- As above. Issue No. 10-- If the plaintiff can prove the rise in the labour charges, he would be entitled to get a percentage added depending upon the extent of the rise but as he has not claimed anything more than 15% he can only get up to 15%. Issue No. 11-- It transpired in the course of the plaintiff's evidence that Government had not given the plaintiff credit for quantities of materials taken away by them. This is a comparatively simple matter and can be dealt with in the reference upon both sides adducing evidence as to what are called "recoveries". The value of the recoveries will be determined by the Referee on the basis of the rates which are given In the tender except as to logs of wood the value as to which must be determined upon evidence. The value to be determined must in this case depend upon the current market rates. There is no question of want of jurisdiction to try the suit. Mr. Hazra contended that issues Nos. 5 and 7 did not arise. Whether that is so or not is immaterial in view of my finding that the analyses of rates concerned must be deemed to have been accepted by the defendant.

(3.) Three main points were raised in the appeal. The first is that the learned Judge was wrong in his conclusion that the analysis-rates were accepted by the defendant or that they were binding on the defendant, and that in any case the learned Judge was not entitled to ask the Referee to ascertain the market rate. Next it was urged that the learned Judge was wrong in his conclusion that the plaintiff was entitled to an extra not exceeding 15 per cent, on the basis of increase in labour charges, provided such increase was proved; thirdly it was urged that the learned Judge was wrong in directing the Referee to take into consideration correspondence addressed by the plaintiff to the authorities in ascertaining the quantity of work done. Objection was also taken to the Judge's directions about interest and sale-tax, and to the directions about the correspondence being examined as regards the quantity of work done.