STATE OF RAJASTHAN Vs. CHANDRA MOHAN CHOPRA

JUDGEMENT

(1.) IN Civil Suit No. 2/ 1961 the plaintiff claimed a decree for Rs. 28,907.44 P. The learned District Judge, Kota passed a decree for Rupees 17,340.26 P. and dismissed the rest of the suit. It is against this decree that the defendant State has filed this appeal for the dismissal of the entire suit and the plaintiff -respondent has cross -objected and has claimed an additional decree for a sum of Rs. 6,835.29 P.

(2.) FOR the construction of Kansuan Aqueduct situated in Tehsil Ladpura. District Kota, the tender dated 29 -9 -1954 of the plaintiff was accepted by the Executive Engineer by his letter dated 29 -1 -1955, An agreement No. 26 of 1954 -55 to that effect was executed between the parties - In terms of the agreement, the work was to be completed by the plaintiff contractor upto 9 -1 -1956. According to the plaintiff, there were heavy monsoons in Rajasthan in the year 1955 and on account of that earth filled on 31/2 bays and behind the abutment and guide wall was washed off sometime in the month of August. 1955 and had caused damage and delayed the completion of the work. However, the plaintiff continued the work. He also applied for the extension of time. The extension was not formally granted, but he was allowed to continue the work. The plaintiff also pleaded that the officers of the defendant State failed to do the dewatering of the foundation in time and they could not take a decision for long as to whether the bed of the canal was to be cement plastered or to be constructed by cement concrete. However, the work was completed on 8th March. 1957. The plaintiff was paid all the running bills less the security deposit in terms of Clause 1 of the agreement. By wav of security deposit a sum, of Rs. 37,503/ - remained deposited with the Department. The final bill was also prepared for a sum of Rs. 4164/ - less 10%, security deposit, but it was not paid. The plaintiff thus claimed a refund of Rs. 37,503/ - and the amount of Rs. 3,748/ -of the final bill, in all Rs. 41,251/ -. The Public Works Department (Irrigation) though accepted the amount, but claimed to deduct a penalty of Rs. 15,000/ -alleged to have been imposed by the Chambal Control Board in its 34th Meeting held at New Delhi on 9 -8 -1958. The Department further claimed a deduction of Rs. 10.198.44 P. After having made this deduction, the defendant paid to the plaintiff in September. 1959 a sum of Rs. 16,052.56 P. The plaintiff represented the matter to the Department, but having failed, he instituted the suit for the recovery of Rs. 25.198.44 P. after having served the statutory notice under Sec. 80 of the Code of Civil Procedure. In addition to the above sum, he has also claimed Rs. 3,709/ - by way of interest at the rate of 6% per annum from 8 -7 -1958 -Thus his claim in the present suit is for Rs. 28,907.44.

(3.) THE learned trial Judge framed four issues and recorded the evidence of the parties. After having considered the evidence on record, the learned District Judge held under issue No. 1 that the penalty of Rs. 15,000/ - was unreasonable in view of the statement of the Chief Engineer (Irrigation) Rajasthan D. W. 1 Shri Motiram. He held that 1% of the estimated cost of the suit work which comes to Rs. 3,750/ - will be a reasonable compensation for non -completion of the contract work within time by the plaintiff. Under issue No, 2 he held that the recovery of Rs. 4,722.31 P was proper and the plaintiff was liable to pay the said amount. The learned trial Judge further held under Issue No. 3 that the plaintiff was entitled to get interest at the rate of 6% per annum from 22 -5 -1960 to the date of filing of the suit. He thus decreed the plaintiff's suit for Rs. 17,340,46 P and allowed pendente lite and further interest at the rate of 6%.