STATE OF RAJASTHAN Vs. BANARSHI LAL S LEGAL …

JUDGEMENT

(1.) THESE two appeals are directed against the decree and judgment dated July 20, 1976, passed by the District Judge, Bhilwara, by which the learned District Judge partly decreed the suit filed by the plaintiff.

(2.) PLAINTIFF Boota Mal filed a suit in the Court of the District Judge, Bhilwara, for the recovery of an amount of Rs. 1,01,300/ -. Rs. 21,500/ -were claimed on account of loss of profit' on the reduced amount of the work; Rs. 51,596/ - were claimed for the correct amount of 16th running bill; Rs. 55,598/ - were claimed as the refund of the security deposit, which the department did not pay and Rs. 2607/ - were claimed as interest on the amount illegally deducted by the defendant. Out of this total claim of Rs. 1,31,300/ -, the plaintiff has forgone his claim for Rs. 30,000/ - which amount was to be deducted on account of hiring charges of the tractors etc. by the department. It is alleged in the plaint that the plaintiff was granted the contract by the State Government for the construction of Part I of Gambhiri (Irrigation) Project Dam, Nimbaheda (District Chittorgarh) from Chain No. 10 to Chain No. 59.50 and the total value of the work was Rs. 10,49,561/ -. The work was to be started from December 1,1954, and was to be completed within the period of 1 -1/2 years, i.e., by June 30, 1956. The work could not be started on account of some technical difficulties and ultimately it was started on September 22,1955. The period for completion of the work was, thereafter, extended upto March 1, 1957. The plaintiffs work of the construction of the dam was in progress and the plaintiff had already completed 90% of the earth work and stone -pitching work by June 15, 1956, when the defendant abruptly decided to close the diversion of the river and to fill the water in the dam in the rainy season of 1956 and asked the plaintiff to hand -over the work as in stands. The plaintiff, therefore, requested the defendant to get the measurements completed before the rainy season starts and to prepare the bills of the work done by him, but the defendant did not pay any head to the request of the plaintiff and prepared the 16th running bill after about three months when the rainy season was over. In the rains, the earth work measuring 3,17,000 cubic feet and the stone -pitching work measuring 43,000 cubic feet, which was done by the plaintiff after the preparation of the 15th running bill and before the preparation of the 16th running bill, was washed away due to rains. The plaintiff completed the work during this period amounting to Rs. 59,095/ -, but the defendant prepared the bill only for Rs. 28,268/ - and that amount too was not paid to the plaintiff, but was illegally adjusted by the defendant towards the charges of hiring the tractors engaged by the plaintiff and for the stores supplied to the plaintiff, though the plaintiff was not liable for the engagement of the tractors and for the hiring charges Incurred thereon by the defendant. It is further alleged in the plaint that in the running bills No. 16th, 17th, 18th and the Final Bill No. 19, a deduction of 5% shrinkage was made by the defendant, which is illegal, improper and against the terms of the contract. According to the plaintiff, the Final Bill was prepared after a lapse of more than two years and by that time, two rainy seasons had already elapsed and the soil by that time had already settled and, therefore, on the basis of the measurements made after two years, the deduction of 5% on the ground of shrinkage could not have been made. It was further averred in the plaint that the defendant illegally forfeited the security amount of Rs. 55,598/ -and the forfeiture of the security amount was absolutely wrong and incorrect and is based on misinterpretation of the letter concerned. The forfeiture of the security amount was illegal, arbitrary, ultra -vires and malicious. It. was further averred in the plaint that though the notice was served upon the defendant under Section 80 C.P.C. for an amount of Rs. 1,76,818/ -, but the plaintiff has forgone his rest of the claim and claimed only Rs. 1,01,300/ - as mentioned in para No. 17 of the plaint. It was, therefore, prayed that the suit filed by the plaintiff may be decreed with cost.

(3.) ON the basis of the pleadings of the parties, the trial Court framed twelve issues. Both the parties led their evidence in support of their case. The plaintiff, in support of its case, examined himself as PW 1 and placed on record the statement of Mr. A.C. Sood, recorded in Civil Suit No. 4 of 1961 of the Court of the District Judge, Bhilwara, relating to the Part III of this very contract. Mr. A.C. Sood could not be examined in this case as. during the pendency of the suit, he died. The plaintiff, also, placed reliance over 18 documents. The defendant, in support of its case, examined four witnesses, namely, DW 1 Mr. B.V. Shah, who was working as the Technical Assistant to the Chief Engineer at the relevant time, DW 2 Arjun Singh, Executive Engineer, who was the Incharge of the work, DW 3 Sukhdeo Singh, Over -seer, Incharge of the work and DW 4 Narendra Kumar Kaushik, Assistant Engineer on the Project at the relevant time and placed on record 279 documents. The learned District Judge, after trial, decided issued No. 1, 4, 5, 6 -A. 6 -B and 11 in favour of the plaintiff and decided issues No. 2, 3, 7, 8, 9 and 10 against the plaintiff and decreed the plaintiffs suit only for an amount of Rs. 55,598/ - alongwith interest @ 6% p.a. from the date of the decree. Dissatisfied with the decree and judgment dated June 20, 1976, passed by the learned District Judge, Bhilwara, the State of Rajasthan preffered appeal No. 112 of 1976 the State of Rajasthan v. Banarsi Lal's Legal Representatives and Ors., while the plaintiff filed S.B. Civil First Appeal No. 113 of 1976 Smt. Aruna Sachdeva and Ors. v. the State of Rajasthan.