STATE OF ORISSA Vs. SIMANCHAL DAS

JUDGEMENT

(1.) THE State of Orissa represented through the Collector, Ganjam, Superintending Engineer, Southern Minor Irrigation Circle, Berhampur and Executive Engineer, Minor Irrigation Division, Ganjam -I, Berhampur and Assistant Engineer, Minor Irrigation Sub -Division, Paralakhemundi have preferred this appeal against the judgment and decree dated 31.10.2000 and 15.11.2000 respectively passed by the learned Civil Judge (Senior Division), Berhampur in Money Suit No.77 of 2002 decreeing the suit of the plaintiff -respondent for a sum of Rs.52,89,093/ -and for future interest @ 12% per annum.

(2.) BRIEFLY stated, the case of the plaintiff -respondent is that he is an 'A Class Contractor and in response to the tender call notice issued by defendant no.3 for specific items of work under special repair programme, he submitted his tender. The tender of the plaintiff -appellant being the lowest, the same was accepted by the defendant no.3 and the plaintiff -appellant was entrusted with the work after executing the required agreement and complying with other formalities. The appellants further case is that, while the contract work was in progress as per the terms and conditions of the original agreement, the defendant -department felt that the works were to be taken up in its entirety instead of doing the same in piecemeal, as the department felt it necessary to strengthen the embankments in full length. The matter was referred to the Chief Engineer, Minor Irrigation, who in his office letter no.37014 dated 13.07.1987 accorded sanction to do the excess quantity of work through the plaintiff -appellant, if he was willing to take up the work as per the terms and conditions of the existing agreement. The plaintiff -respondent vide his letter dated 16.10.1987 expressed his willingness to take up the extra work in each of the fifteen items of work at the tendered rate under respective agreements. So the defendant no.3 vide his letter No.11044 dated 16.10.1987 directed the plaintiff to proceed with the extra work and the plaintiff was supplied with the necessary materials by the department and the plaintiff completed the agreement work as well as the extra work in all respect within the stipulated time and intimated the fact to the defendant no.3 in his letter dated 11.07.1988. In spite of such completion of work, while taking up the final measurement, defendant no.4 confined his measurement only to the works undertaken in respect of the items mentioned in the agreement and did not take note of the actual quantity of extra works done by the plaintiff at the instance of the defendant no.3, though the plaintiff objected to the measurement and requested the defendants 3 and 4 to make full measurement of all the works done by him and to make payment. Defendant no.4 in his letter no.1 dated 07.01.1989 informed the plaintiff that payment for the balance work done beyond the different agreements would be made separately and was requested to accept the part measurement. The plaintiff -appellant was given to understand that the deviation statement would be submitted before the competent authority for approval and payments for such extra work would be made only after the approval of the deviation statement. Though the work as per the agreement was completed and the bill was submitted, the plaintiff -appellant was not paid the balance amount of Rs.1,92,483/ -. The plaintiff also was entitled to get an amount of Rs.19,43,087/ -towards extra work done by him over and above the agreement items. In spite of repeated demands, the defendants did not pay his dues. Therefore, the plaintiff served a notice under Section 80 of the Code of Civil Procedure, 1908, hereinafter referred to as the 'Code, for brevity, but it yielded no result. Thereafter, the plaintiff filed the suit against the defendants for realisation of his dues.

(3.) BEING aggrieved by that judgment and decree, the respondent preferred First Appeal No.268 of 1996 before this Court and a Division Bench of this Court, as per the Judgment dated 30.08.2000 have set aside the Judgment and decree of the learned Civil Judge (Senior Division) and decreed the suit in full. Further directions were given to quantify the additional work of the appellant as accepted by this Court after giving opportunity of adducing evidence and pass necessary decree in terms of the Judgment passed by this Court.