JULLUNDUR IMPROVEMENT TRUST JULLUNDUR Vs. KULDIP SINGH

JUDGEMENT

(1.) THIS appeal have been filed on behalf of the Jullundur Improvement Trust. Jullundur the defendant-appetent, against whom the decree for Rupees 175000. 00 has been passed by the trial Court.

(2.) THE case of the plaintiff-respondent is that he cantered into the agreement dated May 2, 1966, Exhibit P. 7, with the defendant to construct 90 feet wide road in the development scheme of 84 acres behind Civil Hospital, Jullundur connecting Vijay Nagar Road to Nakodar Road and to finish the work an 14-12-1967. In connection with that work, the payment of the last bill was received by him. au 14-12-1967, under protest as his full dues were not paid. According to him there was a material stipulation in the contract that the work will be done and executed strictly in accordance with the Punjab P. W. D. specifications and that clause 12 of the condition of contract Exhibit P. 6, further provided that if during the procure of the work any additional work was involved for which no rate was fixed in the contract, then such class of work shall be carried out at the rates entered in the schedule of rates of the district. According to him regarding the earth filling item of the work he quoted the rare of the Rs. 56. 00 per thousand cubic feet against the scheduled rate of Rs. 81. 50, this quotation was accepted by the defendant and that the regular agreement, Exhibit P. 7, was executed. Since no earth was available within a radius of two miles from the site of the work except 27,589 cubic feet earth taken from the borrow-pits along side the road he did the earth work to the following extent (a) 16,37,975 cubic feet with a lead of seven miles and two furlongs; and (b) 27,589 cubic feet with a lead of 75 feet. The defendant paid the bills for part (a) at the rate of Rs. 56. 00 per thousand cubic feet and for part (b) at the rate of Rs. 15. 10 per thousand cubic feet. None of the above two items (a) and (b), related to the earth filling actually involved in execution of the work corresponding to the item of earth filling two miles as stipulated to in the contract and therefore a clause 12 of the conditions of contract was to be resorted to for the purpose of arriving at the rates payable to him. The defendant applied the above condition only with regarded to the work involved in item (b) by applying the rates provided in the common schedule of the rate but failed to apply this condition for arriving at the rate fore the earth filling involved for the work at item (a) above. It was thus contended by him that was entitled to 16,37,975 cubic feet earth filling with a lead of seven miles and two furlongs as per the rate provided in the common schedule of rates at the rate of Rs. 1,15,477. 23 as the balance amount payable to him. He also alleged that payments were made to him after deduction of earth work at the rate of ten per cent. On account of shrinkage and that this deduction could not be made under the P. W. D. specification because he had executed the work of earth filling to the extent of 18,19,972 cubic feet by layers duty compacted with watering and ramming. According to him, this deduction could be made only in cases of uncomplicated fills Thus, he dammed a further amount of Rs. 23,023. 00 on this account. The plaintiff, also alleged that since he laid the earth in nine inches thick layer, he was entitled to Re. 3,640. 00 at the extra rate of Re. 2/- per thousand cubic feet as per Serial No. 6. 2 (G) (I) of C. S. R Vol. X read with clause 12 of the conditions of contract. He further alleged that he suffered a loss of Rs. 6,200. 00 on account of the washing away of 2 lace cubic feet earth in the storm water in the year 1966. He thus made a total claim of Rs. 1,48,340. 23 on account of the above accounts with interest at the rate of 6. per cent per annum thereon from Jan 15, 1968, which amounted to Rs. 26,700. 00 as the money was unlawfully detained and retained by the defendant. He, therefore, prayed for a decree in the sum of Rs. 1,75,000. 00. As regards limitation, it was alleged in para 12 of the plaint that the cause of action arose to him on 14-12-1967, when the payment of the final bill was received by him under protest and when his full claim was rejected by the defended. It was further stated in para 14 thereof that the suit was within time taking the period of notice of two months which was obligatory under the Town Improvement Act and also as he bad been prosecuting another civil proceeding under the Arbitration Act from May 28, 1968 to Nov. 18, 1970, bona fide under S. 14, Limitation Act. The per-sent suit was filed on Feb. 9, 1971.

(3.) THE suit was contested on behalf of the defendant inter alia on the ground that the suit was barred by time. The plaintiff was debarred from filing the present suit by his own acts and conduct. On merits it was averred that according to clause 12 in tender no additional work was over ordered as claimed by him and therefore the question of carrying out any additional work by him did not areas. It also denied the non availability of the earth within the radius of two miles from the site of work on the issuance of any instructions by the Engineer in charge. It was alleged that he had quoted that rate of Rs. 56. 00 per thousand cubic feet irrespective of lead and that the payment bad. been rightly made to him. It also denied his all other claims. On the pleadings. of the parties; the trial Court framed the following issues: