STATE OF RAJASTHAN Vs. SATYA NAND SARDANA

JUDGEMENT

(1.) THIS is a defendant's appeal against the judgment and decree of the Senior Civil Judge, Bundi, dated 28th November, 1962.

(2.) THE respondent is a P.W.D. contractor who by virtue of an agreement between the parties was given a contract for the construction of an earthen dam at village Talvas. It was a lump -sum contract and the work was to commence from 30th October, 1954, and was to be completed within a period of eight months. For some unavoidable reasons, the work could not be completed within the agreed time and the respondent applied for extension of time to the Chief Engineer and the latter vide Ex. A -2 dated 27th October, 1956 allowed extension of time upto 15th March, 1957 Even upto this date the work was not completed and it appears from Ex.3 dated 17th April, 1957, that the Executive Engineer gave directions to the Overseer to see that the work was finished before the rains set in. However, the work remained in progress even after the rains and continued upto 30th June, 1958, without any objection at least upto 9th May, 1958, when the Executive Engineer Irrigation Kota Division Bundi vide Ex. A -3 rescinded the contract under Clause (3) of the agreement and further gave directions that the work may be finalised at the same stage as it was and the remaining work may be got complete early before rains either departmental or on works basis. This letter was communicated to the respondent and there is no dispute about it. It is, however, admitted on behalf of the appellant in para 7 of the written statement that on the request of the respondent he was allowed to restart the work which he continued upto 36th June, 1958, inspite of the recision of his contract on 2th May, 1958 According to the appellant even on the 30th June, 1958, the work was left incomplete inasmuch as 267386 cubic feet of earth work of inner and outer slopes and of the top of the bundh from chains 15 to 21 still remained to be done. The respondent, however, does not admit that any portion of the work was left unfinished on 30th June, 1958. On the other hand, it is alleged in paragraphs 7 and 8 of the plaint that the work was completed as desired by the defendant within a reasonable time, that is by 30th June, 1958, and the defendant took over the work, duly completed on 30th June, 1958, and also the final bill of the work was prepared on 27th July, 1959 by the defendant's Engineer Incharge of the work and duly signed by him. There is no dispute between the parties that payment of all the bills of the respondent had been made. The only dispute between them is that the appellant did not refund the security deposit of Rs. 0393/ -

(3.) ALTHOUGH the case has been tried on several issues framed by the lower court, the real issue between the parties is whether the contract was lawfully rescinded by the Executive Engineer on 9th May, 1958, according to Clause 3(a) of the conditions of contract If the Executive Engineer rightly rescinded the contract, then as a consequence the security deposit of the contractor stands forfeited and in that case the appellant was justified in not refunding the security deposit. If, on the other hand, the order of recision of the contract was not justified, then the appellant was bound to refereed the security deposit. Therefore the decision of the case turns upon the question whether the contract was rightly rescinded.