STATE OF RAJASTHAN Vs. BAIJNATH PRASAD GULAB SINGH

JUDGEMENT

(1.) THIS is defendant's appeal and arises out of a suit brought by Messrs. Baijnath Prasad Gulabsingh plaintiffs against the State of Raj for recovery of Rs. 82, 809. 48P. The plaintiffs were given a contract for the construction of wasteweir of Guda Irrigation Dam in Bundi District under Agreement No. 72 dated 15.3.54. The work was rock cutting and dumping at the site in stacks within 200 feet distance. The estimated quantity of work was 42, 92, 500 cft. to be paid at the rate of Rs. 70/ - per 1000 cft. The plaintiffs were required to carry the spoils beyond a distance of 200 feet. The plaintiffs therefore claimed extra lead Rs. 275 per 100 cft. The Chief Engineer sanctioned the extra lead Rs. 3 -per 1000 cft. per chain, as according to him the rate for such an extra lead was not specified in the Schedule of Races. The plaintiff's claim was that they were entitled to Rs. 1, 02, 836 95 and the Public Works Department (Irrigation) allowed them only Rs. 40,650.47 in accordance with the rate sanctioned by the Chief Engineer. On this account the plaintiffs claimed in the present suit a sum of Rs. 62 186 48. Besides this about the rate the plaintiff's grievance in the plaint was that the amount of Rs. 20, 623 - has been deducted from their final bill as charges towards the use of machinery employed by Messrs. Baijnath Prasad and Company under contract No. 73. They thus claimed a decree for Rs. 82, 809. 24 with pendente little and fute interest. The defendant admitted that the plaintiff's work involved an extra lead. It was, however, pleaded that the extra lead involved was about 100 to 200 feet and as the extra item was not mentioned in the schedule of rates, the Chief Engineer was right in allowing the extra lead Rs. 3 - per 1000 eft per chain (100ft) and the plaintiff had been paid accordingly. There was nothing due to the plaintiffs on this account. As regards the second item, the defendant admitted that only a sum of Rs. 11, 771, 38 was deducted from the plaintiff's final bill and not Rs. 50.625, as alleged. It was also ad rutted that this amount concerned the work of Baijnath Prasad and Company. But it was asserted that the two firms were not separate and Shri Baijnath Prasad was the person who signed both the agreements.

(2.) THE learned trial Judge framed eight issues and after having tried the issues he allowed Rs. 62, 146, 48 towards their first claim and Rs. 11, 771, 38 towards the second. He thus decreed the plaintiff's suit for a sum of Rs. 73, 217, 86 with proportionate costs. Also allowed pendent lite and future interest 1 per annum.

(3.) IT has been contended by learned Counsel for the State that under the agreement the plaintiffs were to carry and dump the spoils after rock cutting at the site in snacks within 200 ft. distance according to the drawings and specifications. The cost for this work was included in the rate offered by the contractor. The rate for the extra lead is not provided in the schedule of rates and as such the Chief Engineer was the only authority to decide about the rate and the rate and the Chief Engineer by his letter dated 23.8.1955 (Ex. A. 5) decided that the extra lead was to be allowed Rs. 3/ - per 1000 cft per chain after deducing 2 chains lead already included in the original rate. On the other hand, learned Counsel for the plaintiffs contends that the spoil was material and for cartage of such material, rate provided in the schedule of rates. He places relience on the following item in the schedule: III. Carting Materials. 6. Stone, Bajri, Ballast etc. 1/2 mile at Rs. 2.75 per 100 cft. His father submission is that this lead was recommended by the Executive Engineer and it was the Executive Engineer who was to fix the rate in accordance with the footnote given in the tender form. According to him, the rates fixed by the Chief Engineer are not binding on the plaintiffs.