STATE OF RAJASTHAN Vs. MOTILAL

JUDGEMENT

(1.) THIS is an appeal by the State of Rajasthan against the judgment and decree dated 31st October, 1961, of the Senior Civil Judge, Jaipur City No. 1, decreeing the plaintiff's claim for Rs. 16653/ -.

(2.) RESPONDENT Motilal was given a contract for constructing five miles of road on the Kothari, Karoli and Hindaum route on 29-12-53. The work was to be completed upto 20th March, 1955 RESPONDENT's case in the court below was that he had completed the work within the stipulated time and the work was carried out according to the directions of the officers in charge, that payment of eight running bills amounting to Rs. 93,816/- was made to him and though the final bill for Rs. 7116/- was prepared, its payment was not made. Similarly, the appellant with held payment of the amount of earnest money that is Rs. 1400/-and further sum of Rs. 8137/- which was deducted as security amount from his running bills. Thus he was entitled to recover Rs. 16-653/- from the appellant. The said amount was not paid in spite of several reminders. On the other hand, objections were raised about the quality of the material used and the workmanship, though these objections were not tenable because he collected the stone soling and ballast from one mile lead according to the terms of the contract and the material was also approved by the officers who were supervising the work. It was further alleged that he had used soft stone for soling, which was available within a lead of one mile. It was also alleged that soling was not done on some portions of the road because the surface was rocky and the officers supervising the work did not permit him to do so. As for the reasons the road gave way, it was explained in the plaint that it was due to the unexpected heavy traffic of trucks and carts with heavy loads which plied on the road and the Public Works Department in spite of this did not get the road painted by tarcoal. No culverts and cause ways were prepared for protecting the road from the rains. Thus it was alleged that there was no defect of material or workmanship in the construction of the road and it had given way on account of other reasons for which respondent could not be held responsible. Since his final bill had been prepared and the work had been fully checked up and approved, he was entitled to the suit amount.

(3.) IN Davis vs. Hedges (1), it was held - "in an action for damages for the non-performance and improper performance of certain work which the plaintiff had employed the defendant to do, the defence set up was that the defendant had sued the plaintiff for the price of the work alleged to have been improperly done, and the plaintiff had settled by paying the whole amount then sued for ; and that, as the plaintiff might have given the non-performance and the defective performance complained of in evidence in reduction of damages, the plaintiff was precluded from bringing a cross action for them: Held, that though the plaintiff might have used the causes of action for which he sued in reduction of the claim in the former action, yet he was not bound to do so, but might maintain a separate action for them. My finding, therefore, is that respondent did not use soling stone and ballast as specified in the agreement and was liable to replace it in spite of the fact that his eight running bills had been paid for and the final bill was prepared. Further, the appellant was not estopped from raising this objection even though the Overseer and the Assistant Engineer might have allowed the respondent to use such material.