(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. This appeal is filed by the original plaintiff, challenging the judgment and order dated 10.02.1999, passed by the learned 3rd Joint Civil Judge(SD), at Junagadh, in Special Civil Suit No.57 of 1991.
2. Briefly stated facts are as under:
The appellant-original plaintiff(hereinafter referred to as 'the Contractor') is a partnership firm. The appellant-firm entered into a work's contract for construction of a bridge over river Zangeasari, Visavdar-Manekwada Road, District : Junagadh.
3. Executive Engineer, Road & Building, Division-1, Junagadh had invited public tender for such purpose in November, 1984. Against an estimated cost of Rs.16,14,114/-, the plaintiff's tender amount was Rs.16,58,822/-. The offer of the Contractor being the lowest, same was accepted and such acceptance was communicated to the Contractor under letter dated 17.01.1985. Upon the appellant depositing security deposit, work order was issued in favour of the Contractor under letter dated 31.01.1985, written by the Executive Engineer. An agreement was also signed between the parties, shortly thereafter.
4. The work was to commence from 01.02.1985 and such work was to be completed within 24 months i.e. latest by 31.01.1987.
5. Admittedly, there was delay in execution of the work. Executive Engineer extended the period for completion of work till 31.12.1987. Since, even within the extended period, the progress in work was not satisfactory, no further extension was granted. The Contractor, however, prayed for further extension. Instead of granting such extension, the Executive Engineer imposed penalty of Rs.10/- per day for the period from 01.01.1988 and thereafter, at the rate of Rs.100/- per day for the period from 10.05.1988. The department, thus, levied penalty of Rs.48,300/- on the Contractor. The Contractor, thereafter, filed the above-mentioned Suit being Special Civil Suit No.57 of 1991 before the Court of 3rd Joint Civil Judge(S.D.), Junagadh, claiming a total of Rs.10,71,180/- from the defendants together with interest. The main basis of the Contractor's Suit was that the defendant Nos.2 and 3 failed to fulfill other obligations under the agreement. The case put forth by the Contractor was that on account of non-supply of steel, cement, etc. by the Department, the progress in the work was slow. The Contractor, therefore, claimed compensation under different heads, including loss of profit, loss of unrecoverable advance made to the labourers, the amount towards idle labour charges and towards extra costs incurred by the Contractor. The Contractor also claimed refund of the penalty imposed by the defendants.
6. Though, such recovery was worked out under different heads, the main foundation of the Contractor's Suit claim before the Civil Court was that it was on account of breaches committed by the Department and State Authorities that the Contractor could not perform his part of the work. Slowness in work, therefore, could be attributable solely on the breaches committed by the Departmental authorities in performing their part of obligations, under the agreement.
7. The Civil Court framed following issues:
“1. Whether plaintiff proves that the firm is registered under Indian Partnership Act?
2. Whether plaintiff proves that there is a concluded contract between the parties as alleged?
3. Whether plaintiff proves that the firm was ready and willing to perform its part of contract but deft. Fails to perform their respective part?
4. Whether plaintiff proves that there is a breach of contract on the part of Defendant?
5. Whether plaintiff proves alleged damage claim towards different head?
6. Whether defendant proves that time is the essence of the contract and plaintiff failed to complete the work in the stipulated time?
7. Whether plaintiff proves that the act of imposing penalty by the defendant is illegal, wrongful or unjust?
8. What order and decree?”
8. The conclusion of the Civil Court on such issues was as under:
“1. In the affirmative.
2. In the affirmative.
3. In the Negative.
4. In the Negative.
5. In the Negative.
6. In the affirmative.
7. In the Negative.
8. As per final order.”
9. The Civil Court, ultimately, dismissed the Suit of the Contractor. The Court came to the conclusion that the defendants had not failed to perform any of the obligations under the contract. The Court, in fact, came to the conclusion that the Contractor, despite repeated reminders from the Department, failed to speed-up the work. The Civil Court referred to a number of communications brought on record by the defendants in this respect. The Court was of the opinion that there was neither delay nor failure on the part of the Department to supply steel, cement, etc. to the Contractor. Primarily, on this basis, the Court came to the conclusion that the plaintiff failed to prove any of the claims. The learned Judge examined different individual claims separately. But, principally, on the ground that, though, the Department had always shown readiness and willingness to perform its part of obligations under the agreement, it was the Contractor who did not show any progress in the work, the learned Judge rejected the claims of the Contractor, referring to the different clauses of the Contract.
10. Before the Civil Court, the Contractor examined one Kantilal Devshibhai(Exhibit-39). In his oral deposition, he did say that necessary items, such as steel, cement, etc. were not made available by the Department. In the cross- examination, he was confronted with various letters issued by the Department, more particularly, those, produced at Exhibits-53, 54, 47, 69, 76 and 77 after which the department had levied penalty on the Contractor. He agreed that such letters were received by the Contractor. We would refer to such letters at a later stage.
11. On behalf of the defendants, one Sanjay Kiranbhai was examined at Exhibit-82. He was the Deputy Executive Engineer in the R & B Division, Junagadh District Panchayat. The work in question was under his supervision. In his deposition, he referred to the delay by the Contractor in execution of the work for which penalty had to be imposed by the Executive Engineer. He stated that during this period other staff including Assistant Engineer and Deputy Engineer had gone on strike for some period. He, however, stated that this had no effect on delay in execution of the work, despite which the Executive Engineer granted extension of 12 months to the Contractor. He referred to several letters issued to the Contractor for completing the work expeditiously. In his cross-examination, he denied that the Department failed to provide necessary quantity of steel and cement to the Contractor, timely.
12. On the basis of the documents and oral evidence, as already noted, the learned Judge of the trial Court came to the conclusion that the Department had supplied the necessary quantity of steel and cement, despite which the Contractor could not show any progress in the work. Even, after granting of extension of one year, over and above the original period of 24 months, the work could not be completed.
13. From the record, we find that the witness of the Contractor, Kantilal Devshibhai(Exhibit- 39), in his deposition did contend that steel and cement were not supplied by the Department within time. He could not produce any documentary evidence in support of such statement. On the
allegations. He had referred to the different correspondence between the parties. A number of letters were also shown to the witness of the Contractor, who agreed to have received such letters.
14. We may, therefore, refer to some of the documents on record. Exhibit-46 is the letter of the Department to the Contractor, dated 30.10.1985, in which it was stated that despite written instructions to the Contractor he had not resumed the work. Exhibit-47 is the letter of the Executive Engineer, dated 21.11.1985, to the Contractor, stating that the work progress was extremely slow, which should be increased or else steps would be taken against the Contractor. Exhibit-48 is a letter of the Sarpanch of the Gramp Panchayat, Dhebar, to the Executive Engineer, stating that the construction work of the bridge was closed since two months. Exhibit-
49 is a letter of the Deputy Executive Engineer to the Contractor, dated 12.05.1986, stating that the work had stopped since long and despite repeated instructions of the Department the same had not been resumed. Similar letters were written dated 27.05.1986 at Exhibit-50, 15.07.1986 at Exhibit-51, 27.12.1987 at Exhibit-
52, 13.02.1987 at Exhibit-53.
15. On 20.05.1987, the Executive Engineer vide letter Exhibit-54 wrote to the Contractor urging him to complete the remaining work promptly. It was also stated, therein, that the required quantities of steel and cement were kept reserved for the purpose.
16. At Exhibit-65, there is a letter dated 07.10.1987 of the Executive Engineer to the Contractor stating that representative of the Contractor had remained present before the committee on 17.08.1987, in which he had undertaken to complete the construction work of certain portion of the work immediately, for which purpose necessary quantity of steel was issued. Cement was also kept reserved for such purpose. Despite which no progress was made in the work.
17. It is not necessary to burden this order with a series of such letters issued by the Department. Suffice it to record that several letters were written by the Department urging the Contractor to speed-up the work. In number of letters, the Department also communicated that necessary quantity of steel and cement, even though, issued or kept reserved for such purpose. Despite such letters, instructions and reminders, the Contractor did not show any progress in the work. It was on account of these reasons that for the entire period of two years of contract as well as for an extended period of one more year, no substantial work could be performed. It was on this count that the Department was forced to decide not to extend the time-limit any further for the construction work. We do not find that the trial Court committed any error in dismissing the Suit of the Contractor. We are of the opinion that the Contractor failed to establish that the slow progress in the work was attributable to the breaches committed by the Department.
18. We may recall the main ground of the Contractor was that the Department did not supply necessary quantity of steel and cement, which hampered the work progress. The record, however, reveals otherwise. The Department had been issuing letters repeatedly, urging the Contractor to resume the work and complete the same, expeditiously. Letters were also written informing the Contractor that necessary quantity of steel and cement were available.
19. Under the circumstances, we have no reason to interfere. In view of the above discussion, we do not find it necessary to examine the claims separately. No serious disputes or arguments were made before us with respect to individual claims. In the result, the first appeal is DISMISSED. R & P be transmitted to the concerned trial Court, forthwith.
(AKIL KURESHI, J.) (C.L. SONI, J.) Umesh/