STATE OF PUNJAB Vs. HINDUSTAN DEVELOPMENT BOARD LTD

JUDGEMENT

(1.) THIS regular first appeal has been preferred by the State of Punjab and cross-objection have been filed by the respondent. This appeal arose out of a suit filed by the plaintiff for the recovery of Rs. 46,000/ -. The plaintiff is a Company engaged in building work. By a notice dated 9-2-1948 the Superintending Engineer, Development Circle (North) Ambala invited tenders for supply of windows and C-windows (Clerestory Windows) for 500 houses at Jagadhri Township. A contractor Dewan Raj Paul Nanda submitted his tender which was accepted and work was allotted to him at the flat rate of Rs. 1/12/- per square foot but later on he could not perform the contract which was cancelled by the Superintending Engineer and the Executive Engineer was directed to have the work carried out by negotiation through some other contractor. The Executive Engineer negotiated with the plaintiff-company and it agreed to carry out the work at the same rate, that is at Rs. 1/12/- per square foot. It is the case of the plaintiff-company that it had undertaken to supply glazed windows in accordance with the plan and designs given to them by the Government. These windows were to be glazed but the costs of glass panes and fixing charges were to be borne by the Government. After the plaintiff had manufactured windows covering 2000 cft. In accordance with the original designs, the plan was revised and the plaintiff-company was required to manufacture and supply panelled windows, and panels were to be made by the plaintiff from other timber paid for them and with their labour. As a result of the revised plan higher costs were entailed as the work required more timber and labour. The plaintiff-company on 5-5-1948 asked the Executive Engineer Incharge for enhancement of the flat rate from Rs. 1/12/- per sq. ft. to Rs. 2/12/- per sq. ft. The Executive Engineer Incharge required the plaintiff to supply detailed analysis in support of the plaintiff's demand for enhanced rate which was done on 26-5-1948. The Executive Engineer recommended to the Superintending engineer that the rates of the new work be enhanced from Rs. 1/12/- to Rs. 2/10- per sq. ft. It was also alleged that the Executive Engineer advised the plaintiff to carry on with the supply like a good contractor and that this would be in his own interest. The plaintiff consequently completed the supply as per new design but the Superintending engineer did not agree to the enhanced rates and the matter had to be referred to arbitration. The arbitrator who was the Superintending Engineer himself, allowed only Rs. 6720/- to the plaintiff under the terms of the award dated 15-2-1950. Both the award and the reference was later on set aside by the Senior Sub-Judge on objections having been preferred by the plaintiff-company. The plaintiff after serving notice as required under S. 80 of the Civil Procedure Code has instituted the present suit for recovery of Rs. 46,000/ -. This sum has been arrived at in the following manner as stated in the plaint.

(2.) THE defendant denied the plaintiff's claim, and averred that after the plaintiff had supplied some windows the Superintending Engineer asked for the supply of panelled windows and on this the plaintiff requested to be paid Rs. 2/12/- instead of Rs. 1/12/- per sq. ft. Though the plaintiff did not at first agree to be paid at the rate of Rs. 1/12/- per square foot but loter on consented to receiving the remuneration at the old rate previously agreed upon, on 28-3-1949, executed and signed the agreement and, therefore, the plaintiff-company was bound by the terms, embodied therein. The plaintiff filed a replication reiterating what had been pleaded in the plaint. The pleadings between the parties gave rise to the following issues:

(3.) UNDER issue No. 1 the learned Advocate-General has argued that the rate of Rs. 1/12/- per sq. ft. was the agreed rate not only for glazed windows, which the plaintiff was required to make at first, but also for the panelled windows which the Company was subsequently required to make. The oral and the documentary evidence to which our attention has been drawn by the advocate-General and which will presently be referred to does not bear out the appellant's contention.