SOUTH INDIA RAILWAY CO LTD Vs. SMBHASHYAM NAIDU

JUDGEMENT

(1.) This is an appeal by the South India Railway Company, wherein the company object to some of the items which have been allowed by the lower Court, out of the claim made by the plaintiff on the basis of a contract between his grandfather and the company, in connection with the construction of the Shoranur Nilambur Railway. A number of items were claimed, a specified in several sub-paragraphs of para. 11 of the plaint; some of them have been allowed by the lower Court and some disallowed. In the appeal before us the learned Counsel for the company has argued only four items. The contractor has also filed a memorandum of objections, taking exception to the lower Court's decision in respect of two items, namely, these claimed in sub-paras. 2 and 4 of para. 11 of the plaint,

(2.) The main item in dispute between the parties is the one claimed in sub-paras. I to 9 of para.11. There is no dispute as to the amount awardable, if the right of the plaintiff to make a claim under this head is upheld. The argument has therefore been mainly directed to the question of the plaintiff's right to make a claim under this head, on the footing on which he has made it. This in turn involves two questions: (1) as to the proper construction of the clause under which the Km is made, and (2) whether the Court is altogether precluded from dealing with the matter by virtue of a decision given by the Chief Engineer of tie Railway, which decision is made final by Clause 41 of the agreement. On, the first question, namely, the construction of the agreement itself, if it is alone to the Court to deal with it, we up not say much, because the learned opnsel for the appellant has not seriously contested the view taken on that pifint by the lower Court. But as one two considerations bearing upon this question of construction will also have a hearing upon the second question, namely, as to the finality of the alleged desision of the Chief Engineer, it is just as well that we say a few words about it. The difference between the parties is whether in respect of certain banks constructed for the Railway, the contractor is to claim at what are called through rates from ground to formation level or only at what are described as sectional rates, There can be no doubt that according to Clause 19 of the specification form adopted by the company in 1909, only sectional rates Should have been provided for But we have the fact that in the present case the, tender, Ex A, was made by the contractor on a printed form supplied by the company specifically in connection with the construction of the Shoranur Nilambur Railway. For whatever reason it be, it cannot be deemed that this tender form has in several particulars departed from the details set out in the old specification of 1909. The tender expressly provided for through rates in certain cases and sectional rates in certain other oases, and it has not been disputed that in accordance with the terms of that tender the present claim for through rates is justified. That tender was accepted by the company's agent and after that acceptance, the agreement, Ex B, was entered into between the parties. In view of a suggestion made in the course of the examination of D.W. 1. in the Court below, namely that the words through rates ought to have been struck out and that by mistake they have been allowed to remain in the form used by the Railway, It is necessary to point out that not merely was this not the case put forward by the Railway Company in the written statement but the reference to through rates is entered in manuscript in the Schedule to Ex. B. Hence, there appears to be no basis for the suggestion that there was any mistake j or omission to score out some clauses. "With these preliminary remarks we may come to the few documents which bear upon the question which was mainly argued before us under this head, namely whether there has been any decision by the Chief Engineer which by reason of Clause 41 of the agreement could be said to have become final between the parties. It is necessary to refer only to Exs. I-a, KK and II. Ex I-a is a circular letter addressed by the acting Chief Engineer to all the Executive Engineers and Assistant Engineers working on the Mayavaram Tranquebar Railway on the 29 October 1925. The material portions of Ex I-a are the following: Apparently there is some doubt existing about the interpretation of this item which reads: Increment for additional height or depth over six feet with the sub items (a), (b) etc.... The whole section should not be paid at the initial rate plus the increment for a bank 18 feet high. The printed specification of works, III Earthwork, para. 19 is quite explicit OH how payments should be made.

(3.) Pausing here for a moment, we must point out that this apparently had no reference to any particular contract, but was a kind of instruction which the Chief Engineer thought fit to issue under para. 19, Section 3, Ex. 4 before him. On the terms of that provision there is hardly any room for doubt. But it will be impossible to connect Ex. 1-a with the suit contract, not only because no claim had been made under the suit contract at the date of Ex. 1-a, but also because the suit contract has not followed the language of Ex. 4 in this respect. The next document Ex. KK is a letter, dated 22 December, 1926, sent by the Chief Engineer to the Executive Engineer of the Shoranur Nilambur Railway. Referring to the question of payment for earth work the Chief Engineer there says: This was discussed with you on the 16 instant at Angadipuram. The interpretation to he given to the clause these are through rates from ground to formation level is, the rates are through from ground to formation, i.e., on the various steps 0 to 6, 6 to 9, 9 to 12 and so on. It would be absurd to claim that the first 6 feet in a bank 9 feet: high cost any more to V1 throw up than the 6 feet in a bank 6 feet high. In fact it would be the other way round as there would be leas dressing to do in proportion to the contents.