IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2626 of 2002 For Approval and Signature:
HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE C.L. SONI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= STATE OF GUJARAT & 1 - Appellant(s) Versus NARENDRA R PATEL - Defendant(s) ========================================================= Appearance :
Ms. Moxa Thakkar, AGP for Appellant(s) : 1 - 2. MR BS PATEL for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE C.L. SONI Date : 30/08/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE C.L. SONI)
1. This appeal under section 96 of the Code of Civil Procedure, 1908 [“the Code” for short] is directed against the judgment and decree dated 30.10.2001 passed by the learned Civil Judge (S.D.) Bharuch in Special Civil Suit No. 150 of 1991 whereby the respondent is held entitled to recover Rs.16,88,812.00 from the appellants.
2. The facts which are noticed from the record of the case are stated as under:
The respondent was awarded public contract for work of Minor and Sub Minor of Narwadi Distributory from Ch. 0 to 4050 Mtrs. Of Choadway Irrigation Scheme. As per the agreement, the work was to commence from 10.4.1986and to be completed within eight months i.e. on or before 9.12.1986. The tender was accepted for Rs. 6,46,082.82. It appears that since the dispute had arisen between the parties, the respondent had issued notice for appointment of arbitrator to the appellants under clause 30 of the Agreement and subsequently filed suit under section 20 of the Arbitration Act, 1940 for appointment of arbitrator. The suit was allowed and the order for appointment of arbitrator was passed which was challenged by the respondent by filing appeal before this court. The respondent therefore filed the above referred Special Civil Suit in the Court of the learned Civil Judge (S.D.) Bharuch for recovery of Rs.28,89,000.00 with interest at the rate of 18 per cent per annum from the appellants. The suit was filed by the respondent mainly on the ground that the appellant did not make available the line out for work, that the canal line was passing through various ground level; that the canal land was not acquired by the department and was also not acquired at the time of acceptance of tender. That the appellant had failed to provide drawings and designs of the work contract to the respondent. That the respondent was not handed over possession of the land for carrying out the work.
3. In the suit, the respondents claimed following amounts:
4. Above amounts come to Rs.19,65,308.40 paisa. Respondent has further claimed interest on the above said amounts at the rate of 12 per cent per annum from 28.8.1987 i.e. date of notice till the date of filing the suit i.e. 28.8.1991. The amount come to Rs.28,89,000.00, as claimed in the suit.
5. The suit was resisted by the original defendants appellants herein by filing written statement at Exh. 61.
6. Following issues were framed at Exh. 24 and answered as under:
Issues:-
(1) Whether the plaintiff proves that the defendant no.2 had invited tenders publicly on behalf of the State of Gujarat for the work of Minor and Sub Minor of Narwadi Distributory from CH-O to 4050 Mts. of Chopadway Irrigation Scheme and the plaintiff filed up the tender and his tender was being accepted by the defendants as alleged?
(2) Whether the plaintiff proves that after his acceptance of tender agreement No. B-1 of 1986-
87 was entered into between the plaintiff and defendant and he had paid security deposit on all of Rs.11,097/- as alleged?
(3) Whether the plaintiff proves that defendant issued work order and plaintiff has required to start the work from 10.4.86 and complete the same on or before 9.12.86, it completing period of 8 months as alleged?
(4) Whether the plaintiff proves that he was ready and willing to perform his part of the agreement and defendant committed breach as alleged?
(5) Whether the plaintiff proves that though work completed the plaintiff send final bill to the tune of Rs.19,65,308.40 for the work done as narrated in claim No.1 to 14 and defendant fails to make payment thereof as alleged?
(6) Whether the plaintiff is entitled to claim interest as per claim no.15 as alleged in plaint?
(7) Whether the suit is barred under the period of limitation?
(8) What amount found due?
(9) What order and decree?
Answers:-
(1) In affirmative.
7. Before the trial court, the respondent examined his witness Shri Mahendra R. Rambhai Patel at Exh. 69 and from the appellants' side, one Shri Tulsidas Mavjibhai Choudhari was examined at Exh. 175. Parties also produced their documentary evidence on record.
8. The learned Judge allowed Claim No.1,2,3,4,9,11,12,13,14 and held that the plaintiff shall be entitled to the amount of Rs.11,41,087.00. On the above said amount, the learned Judge also allowed interest at the rate of 9% per annum from 28.8.1987 till the date of filing of the suit i.e.28.8.1991 and held that the plaintiff shall be entitled to Rs.5,49,725/-. The suit of the plaintiff, thus, came to be partly allowed and the plaintiff was held entitled to recover Rs.16,88,812.00 from the defendants appellants. The plaintiff was also held entitled to interest at the rate of 9% per annum on principal amount of Rs.11,41,087.00 from the date of filing of the suit till its realization.
9. We have heard the learned advocates for the parties.
10. Learned A.G.P. Ms. Moxa Thakkar has submitted that the suit of the plaintiff was barred by the provisions of Order 2, Rule 2 of the Code. She submitted that prior to the filing of the present suit, Special Civil Suit No. 304 of 1988 was filed by the plaintiff on the same allegations and averments. She would submit that the cause of action in the said suit was also same and, therefore, the prayers which are made in the present suit could have been made in the earlier suit. Since no leave was asked for and granted by the Court in the earlier suit for filing the another suit on the same cause of action, the present suit is barred by the provisions of Order 2, Rule 2 of the Code. In support of this submission, she relied on decision in the case of Kunjan Nair Sivaraman Nair versus Narayanan Nair and others reported in 2004(3) SCC 277; Gurbux Singh v. Bhooralal, reported in AIR 1964 SC 1810;
11. Learned A.G.P. also submitted that the suit of the plaintiff was otherwise time barred as the same was filed after the period of three years from the cause of action which had already arisen on 5.10.1987 when the plaintiff had issued notice to the appellants. She would submit that the respondent had already put the final bill of the work under the contract and thereafter, notice was issued and, therefore, limitation would be reckoned from the date of filing the bill and ultimately from the date of notice i.e. 5.10.1987. The suit was filed on 28.8.1991. Thus, it was filed after the expiry of three years' period, therefore, the suit was time barred.
Learned A.G.P. submitted that the plaintiff was not entitled to any of the claims made in the suit. The plaintiff was responsible for not completing the work as per the contract. She would further submit that the plaintiff would not be entitled to any claim because withdrawal of earlier suit would amount to abandonment of all claims by the plaintiff. She submitted that in a time barred suit, the learned Judge was not justified in allowing any of the claims made by the plaintiff. She would submit that the plaintiff has admitted in cross examination that the work was not completed as per the contract and that if the extension of time is asked beyond the contract period, no higher rate for the work done during the extended period is to be paid. She, therefore, submitted that the learned Judge has committed grave error in awarding the amount of Rs.6,53,640.00 towards claim No.2 for payment of higher rates as the contractor was at fault and responsible for not completing the work in time. Learned A.G.P. would further submit that the plaintiff was also not entitled to the amount of Rs.1,45,184.00 for claim No.3 on account of extra work in item no.6. She submitted that under the contract, it was for the contractor to make arrangement for bringing soil and murram and such claim could not be granted only on the ground that the plaintiff had to bring the material. The learned Judge has, thus, committed grave error in granting such claim which is against the terms of contract.
Learned A.G.P. further submitted that the plaintiff was not authorized to work beyond the limit of two kilometers and if the plaintiff had done the work beyond the limit without authorization, the plaintiff would not be entitled to the claim of Rs.27,123.00 and, therefore, the learned Judge has committed grave error in granting such claim.
As regards the claim of Rs.2366.00, learned A.G.P. submitted that there was no evidence in support of such claim. The fact that the measurement was not taken was itself a ground for not granting such claim for the work alleged to have been done.
As regards the claim No.11 for Rs.70,000.00 on account of over head and over stay, learned AGP submitted that since the plaintiff did not adhered to the time for completing the work under the contract and had asked for extension of time, the plaintiff was not entitled to such claim and the learned Judge has committed grave error in granting such claim. As per her submission, claim of the plaintiff was, otherwise, not supported by any evidence and, therefore, the plaintiff was not entitled to the amount of Rs.68,640.00 awarded by the trial court against the claim of Rs.70,000.00.
As regards claim of refund of the security deposit, Learned AGP further submitted that the plaintiff would not be entitled for the same because it was the plaintiff who was responsible for not completing the work in time. Lastly, learned AGP has raised serious grievance about awarding interest of Rs.5,47,725.00 for the period prior to the filing of the suit on the principal amount. She would submit that there is no agreement between the parties for awarding of such interest on the principal amount for the period before filing the suit. She pointed out that the plaintiff had issued notice on 5.10.1987 and thereafter, the plaintiff resorted to filing of the suit for appointment of arbitrator. After a period of three years from the date of notice, the plaintiff filed the present suit. Therefore, it is the plaintiff who is responsible for such delay in filing the suit, therefore, the plaintiff cannot be awarded any interest for his own wrong and fault for not approaching the Court immediately. The plaintiff cannot be given premium by awarding interest for such a long period. She submitted that since there is no specific agreement for awarding interest for the period prior to the suit and since the delay in filing the suit is attributable to the plaintiff himself, the learned Judge was not justified in awarding interest to the plaintiff for the period prior to the filing of the suit.
12. On the other hand, learned Advocate Mr. B.S. Patel appearing for the respondent contractor has submitted that the present suit would not be barred by the provisions of Order 2,Rule 2 of the Code because the earlier suit was only for the purpose of appointment of arbitrator under the provisions of the Arbitration Act, 1940. He submitted that simply because the plaintiff had to make some averments in the earlier suit like the present suit, that by itself would not be a ground for holding that the suit is barred by the provisions of Order 2, Rule 2 of the Code.
As regards limitation, he submitted that the appellant has never drawn final bill nor issued completion certificate of the work nor had at any time taken final measurement, therefore, simply because the contractor had submitted his bill and issued notice, that could not be taken as starting the period of limitation. Mr. Patel submitted that the contractor had earlier filed the suit for appointment of arbitrator and the suit was allowed and the arbitrator was ordered to be appointed but since the appellant had filed appeal before this Court against the said order appointing arbitrator, by virtue of section 14 of the Limitation Act, benefit of exclusion of time in the suit for appointment of arbitrator was available to the contractor, therefore, present suit is within the time limit. Mr.Patel also submitted that the contractor would be entitled to the bill only on receipt of completion certificate and since the last date for payment of the bill was not finalized by the appellant which was obligatory on the part of the appellant under the contract by virtue of Article 14 of the Limitation Act, the period of three years would be reckoned from the date of finalization of the bill by the appellant on issuance of completion certificate. He submitted that it was not a case of rescission of contract or cancallation of contract, therefore, under the contract, completion certificate was very much necessary and in absence of the completion certificate and drawing of the final bill by the appellant, the limitation would not begin to run. Mr. Patel submitted that in any case when the alternative mechanism under the Arbitration Act was being persuaded for getting the disputes resolved, and when the arbitrator was appointed by the competent court and ultimately when the appeal was required to be withdrawn, the time consumed in pursuing such alternative mechanism is to be excluded for the purpose of limitation and in the facts of the case, suit filed by the contractor is clearly within the time limit. In support of his submission, Mr. Patel relied on decision in the case of State of Rajasthan v. Ram Kishan reported in AIR 1977, Rajasthan 165; in the case of Gujarat Housing Board v. SK Gadhvi and Company in First Appeal No. 1615 of 1990 dated December 19, 2000;in the case of R.P. Souza and Co. versus Chief Engineer PWD reported in 1999 (3) BLR 193.
As regards different claims granted by the learned Judge, learned Advocate Mr. Patel submitted that the learned Judge has on correct appreciation of the evidence, granted different claims in favour of the plaintiff and, therefore, has not committed any error. Mr. Patel would submit that it was because of the fault on the part of the appellant that the work could not be completed within the time limit under the contract and the extension was required to be asked for. He submitted that the appellant did not make the line out available, did not supply designs and drawings and as a result of which it was not possible for the contractor to complete the work within the time limit as per the contract and, therefore, considering the reasons stated by the respondent, time was extended and during that time, work was completed and the respondent was entitled to all the claims as put forward by the respondent.
Mr. Patel submitted that the first claim is in respect of the remaining outstanding amount of the bill which was withheld by the appellant. Since the respondent had already worked under the contract, the learned Judge has not committed any error in allowing such claim.
As regards the second claim, he submitted that such claim is in respect of the higher rates for the work could not be done by the plaintiff in time and extension was to be asked for on account of the fault of appellant and, therefore, contractor was very much entitled for the same. Learned Judge has thus not committed any error in granting such claim.
As regards third claim, he submitted that the contractor had proved that the extra work was done in item no.6 and, therefore, learned Judge has rightly granted the said claim.
As regards other claims also, Mr. Patel submitted that since the contractor could not complete the work during the period under contract, he had to ask for extension and during that period, the contractor was within his right to claim on account of over head over stay etc. and for the work done by the contractor and, therefore, the learned Judge has not committed any error in allowing such claims.
For claim no.15 which was a claim for interest for the period prior to the filing of the suit, he submitted that when the contractor was entitled to the amount under different claims for the work done by the contractor under the contract and if the appellant for no justifiable reasons did not pay legitimate dues of the contractor, even after issuance of notice, the contractor would be entitled to claim interest for the period from the date of notice till the filing of the suit and, therefore, the learned Judge has not committed any error in granting such claim of interest to the contractor for the period prior to the filing of the suit. Mr. Patel relied on in the case of JC Budhraja versus Chairman, Orissa Mining Corporation and another reported in (2008)2 SCC 444; State of Gujarat v. Shirinbai Pirojshah Wadia and another (Legal representative and Legal Heirs of deceased Shri Wadia) reported in 1976 GLR 638. Ultimately, learned Advocate Mr.Patel submitted that the appeal is devoid of any merits and same is required to be dismissed.
13. We have perused the record and the impugned judgment.
As regards the first contention raised by the learned A.G.P. Ms. Moxa Thakkar that the suit was barred by the provisions of Order 2, Rule 2 of the Code, we find that though the plaint of the first suit is not on record, but the judgment in the said suit is on record and there is no dispute that the first suit was for the purpose of appointment of arbitrator. Said suit was allowed against which an appeal was filed before this Court. In the cause of action of the present suit, the contractor has clearly stated that after the order appointing arbitrator, since the appeal is filed, cause has arisen to file the present suit to be on safer side to save the limitation and notice under section 80 of the Code was served to the defendant- appellant on 16.11.1989 and the cause was still continuing.
14. In the decision of Hon'ble the apex court in the case of Gurbux Singh (supra), the apex court has laid down that in order to establish the plea under Order 2, Rule 2 of the Code, pleadings of the previous suit is to be filed in evidence to prove the identity of causes of action in two suits. Hon'ble the apex Court has further held that in order that a plea of a bar under O.2 Rule 2(3) of the Code succeed, the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of the cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed.
15. In the case of Kunjan Nair Sivaraman Nair, (supra), Hon'ble the apex court has held that it must be shown that the second suit is based on identical cause of action. The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense, “cause of action” means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff-respondent to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact is comprised in “cause of action”.
16. We have noticed that in the case of M/s. Bengal Waterproof Limited(Supra) reported in AIR 1997 SC 1398, Hon'ble the apex court has held that the pleadings in the first suit, if not produced on record, plea as to the bar to the second suit cannot be raised. It is also held that subsequent suit must be in respect of same cause of action on which previous suit was based.
17. In the case on hand, cause for filing the present suit has arisen for the contractor because of filing of appeal by the appellant against the order appointing arbitrator in the suit filed by the contractor. The respondent plaintiff has clearly stated about the events which had taken place in the cause of action itself and has further stated that in order to save the time limit, suit was required to be filed. The cause of action in the present suit therefore cannot be said to be the same cause of action on which the previous suit was based. It appears that the respondent was concerned with the violation or infraction of his right of making claims under the contract and, therefore, necessity had arisen for filing the second suit. We are therefore of the opinion that the second suit was not barred at all by the provisions of Order 2,Rule 2 especially when the first suit was subsequently permitted to be withdrawn at the appellant stage though unconditionally.
18. Next contention raised by the learned A.G.P. is about limitation. It was seriously contended that the contractor had issued notice on 28.8.1987 and thereafter, request was made by the contractor on 5.10.1987 for appointment of arbitrator and the suit was required to be filed by the contractor within three years from the said date. However, the suit was filed on 28.8.1991 which was clearly beyond the period of three years and, therefore, it was clearly time barred. We find that the time was extended to complete the work by the appellant . We find that no final bill was prepared nor completion certificate was issued by the appellant after the work was completed though beyond the time extended by the appellant. The contractor was therefore required to issue notice dated 28.8.1987 and since no payment was made, the contractor made request for appointment of arbitrator on 5.10.1987. In ordinary circumstances, limitation would have been reckoned from the date of issuance of the final bill or the completion certificate by the appellant as held in the case of Ram Kishan (supra), in the case of Gujarat Housing Board v. SK Gadhvi and Company in First Appeal No. 1615 of 1990 dated December 19, 2000.
Construing the clauses like in the present case, Full Bench in the case of Ram Kishan (supra) held that where the suit is based on a building contract containing Clause (6) and (7), in standard form, it is governed by Article 56 and the starting point of limitation would be the date when the Engineer-in-charge issues the certificate of completion and when the final measurements are made.
In the case of SK Gadhvi and Company (supra), this Court has held that the commencement of the limitation has to be the date on which the final bill is prepared. In the present case, final bill is not prepared. Therefore, it would have been continuous cause of action for filing the suit but we cannot ignore the fact that the contractor had already issued notice dated 28.8.1987 and the suit for appointment of arbitrator was filed on 11.1.1988 for getting the very claims made in the present suit resolved through arbitrator. Therefore, the limitation would have been reckoned from the date of notice i.e. 28.8.1987 for the present suit. By inviting appointment of arbitrator, the contractor had already put-forth his case which was denied, therefore, contractor could not have postponed accrual of cause of action for filing the suit for civil action. However, in the earlier suit, the arbitrator was appointed by order dated 7.1.1989 by the competent court. Against the order appointing arbitrator, appellant filed first appeal no. 841 of 1989, and stay was granted against order of appointment of arbitrator. Present suit is filed on 28.8.1991. The contractor would not have filed the suit for civil action if the appointment of arbitrator was not challenged by the appellant by filing the first appeal and, therefore, in fact, cause of action for filing the civil suit had actually arisen after the appellant had preferred appeal before the High Court challenging order of appointment of arbitrator in the year 1989 when the first appeal No. 841 of 1989 was preferred. These bundle of facts have been clearly stated by the contractor in the suit on hand. We are therefore of the opinion that the time would start running for filing the suit in the civil court by the contractor from the date of filing of the first appeal by the appellant before the High Court in the year 1989 and if we take the date of order for appointment of arbitrator on 7.1.1989 7.1.1989 and the date of the suit on hand, 28.8.1991, the suit can be said to have been filed within time limit. We accordingly hold that the suit of the contractor was filed within the prescribed period of limitation.
19. This brings us to consider the grant of different claims by the learned Judge.
As regards the first claim of Rs. 2,22,683.00 Amount remained outstanding towards the final bill put forth by the contractor for the work done, we find from the evidence on record that the finding recorded by the learned Judge that the work was already done though in extended period of time, therefore, contractor remains entitled for the said amount.
As regards claim No.2 for Rs.8,74,614.00 towards amount claimed for revised rate, we find that even after the time was extended by the appellant for completing the work till 6.4.1987, the contractor has not completed the work during that extended period and took further four months to complete the work. In fact, the witness for the contractor has also, in unequivocal terms, admitted that if the extension to complete the work under the contract is asked for and given, then, the revised rates shall not be required to be given for the work done during the extended period. At this stage, we would also like to refer the deposition of the contractor and some letters of the contractor. Witness of the contractor has clearly stated that the work could not be completed during the period of contract. During the extended period of contract also, the work could not be completed. Witness has further stated that since the line out was not given and since the lands were not acquired, possession of the total lands was not handed over, it was not possible to complete the work within the time limit. The witness has however confirmed the particulars stated in Exh. 76 wherein line out for measurement work were given and out of total work of Rs. 6,46,082.82, he could also complete the work after extended period of time of more than Rs.5,00,000.00. We find that there is no clause in the agreement for giving revised rate if the work is not completed within the time limit. Time was extended upto 7.4.1987 still the work could be completed only on 21.8.1987.Contractor had of course written letter Exh. 96 dated 20.3.1987 stating that since the line out was not given, more expenses were required to be incurred for completing the work, therefore, the higher rate was to be demanded. There is another letter at Exh. 117 dated 28.12.87 stating that the payment of the work in extended time would be as per the rates mentioned therein. After this, there was another letter Exh. 120 dated 23.3.87 written by the contractor demanding higher rate. He had also written three to four letters for giving line out. However, as stated above, Exh. 76 which is not disputed by the contractor wherein details about giving of line out though not of the entire site, were given. At this stage, we may refer to letter Exh. 141 written by the Deputy Executive Engineer to the Executive Engineer complaining that out of the entire site for particular work, line out was kept ready to be given to the contractor, the contractor was not coming forward to do the work in the said line out. Deputy Executive Engineer in his deposition at Exh.175 also stated that the line out was being kept ready but the contractor was not ready to do the work. The Deputy Executive Engineer also stated that 90% of the lands were acquired and the contractor did not do the work even as per the line out stated in Exh. 76. Said witness also stated that the line out were given and we find that there was no serious dispute about giving of design and specifications because as stated by the Deputy Executive Engineer in his deposition that it was available when the tenders were floated and the contractor was aware about the designs for doing the work and to get the line out as per the designs. From the above deposition, we find that it was not the case that the contractor was not given entire site of work and it was not the case that no line out were at all given to the contractor. Under the circumstances, we find that there is no justification for demanding revised rates by the contractor. The contractor has not clearly established that there was no fault on his part for not completing the work within time limit. The fact that the time was extended and the fact that even during the extended period also, the contractor could not complete the work and took four months more to complete the work would go to show that the appellant was not at all at fault for giving extension in getting the work completed by the contractor. In view of the above, we are of the view that the learned Judge was not justified in granting claim No.2 for Rs.8,74,614.00. We, therefore, disallow this claim of the contractor.
20. Next is the claim No.3 granted by the learned Judge for Rs.1,45,184.00 of extra work in item no.6 and claim No.4 for Rs.27,123.00 for amount claimed for work executed in item no.10. For these two claims, we find that the contractor has adduced evidence to prove the said claims. In fact, the claim of the contractor as regards Rs. 1,45,184.00 could not be contradicted by the appellant and, therefore, we concur with the finding recorded by the learned Judge in this respect. Likewise, claim for extra work done in item no.10, appellant could not contradict the evidence adduced by and on behalf of the contractor, therefore, we do not disturb the finding recorded by the learned Judge as regards this claim also.
So far as claim No.9 is concerned, claim No.9 is for Rs.2366.00 for the amount on account of loss for for not taking measurement. In respect of this claim also, we find that the evidence of the contractor has not been contradicted by the appellant, therefore, we do not disturb the finding recorded by the learned Judge on this claim.
Next is the claim No.11 for Rs.70,000.00 for the amount on account of over head and over stay. We have discussed above the evidence as regards non completion of the work by the contractor in specified time limit. The contractor did not complete the work within the time limit and asked for extension of time which was granted till April, 1987. Even during the extended time limit also, the contractor has not completed the work. The contractor then completed the work after a period of four months and claimed different amounts. We have discussed that the lands were acquired to the extent of 90%. The Deputy Engineer found that the contractor was not taking up the work though line out was given. We have also discussed that the contractor has not faced any difficulty as regards non availability of design and specifications. We therefore find that the extension which was granted to the contractor was not because of the fault on the part of the appellant. Even after the extension was granted, the contractor could not avail of the opportunity and complete the work during the extended period. Under the circumstances, we are of the view that the contractor is not entitled to any amount on account of over head and over stay and, therefore, we disallow this claim of the contractor.
For Claim No.12 for Rs.13,210.00 towards amount on account of payment made in hard murram, the contractor has adduced the evidence. Same is believed by the learned Trial Judge. We do not want to disturb the same.
So far as the claims as regards time limit deposit and security deposit are concerned, we find that the appellant has not taken any penal action and no notice was issued to the contractor, therefore, learned Judge was justified in allowing said claim No.13 and 14 and we do not want to disturb grant of these claims also.
Now what remains is about the claim No.15 of the contractor for interest from the date of notice till the date of filing of the suit. Learned Judge has observed that there is no contract between the parties for grant of such interest. However, learned Judge has granted interest at the rate of 9% per annum. This interest is granted for entire period from the date of notice till the date of filing of the suit. As stated above, after the notice was issued on 28.8.1987, the contractor had made request for appointing arbitrator on 5.10.1987. Then, the suit for appointment of arbitrator was filed on 11.1.1988 and order for appointment of arbitrator was passed on 7.1.1989. However, said order of appointment of arbitrator was challenged by the appellant by filing First Appeal No. 841 of 1989. It appears that before filing the present suit, contractor had issued notice under section 80 of the Code on 16.11.1989, still however, present suit came to be filed on 28.8.1991 i.e. almost after a period of one year and two months. There was no reason for not filing the suit immediately after issuance of notice under section 80 of the Code, meaning thereby, after two months from the date of issuance of the notice under section 80 of the Code. Contractor cannot be permitted to take advantage of delay occurred for his own fault for not filing the suit immediately after expiry of two months from the date of notice under section 80 of the Code, which could be 31.1.1990. Therefore, we are of the view that the learned trial Judge was not justified in granting interest from 28.8.1987 to 28.8.1991, the date on which the suit was filed. In our view, the contractor would be entitled to interest from the date of notice 28.8.1987 till 31st January, 1990.
21. In view of the above, the respondent-original plaintiff shall be now entitled to the following amounts:
22. On the aforesaid total amount of Rs.4,22,973.00, the respondent shall be entitled to interest for the period from the date of notice 28.8.1987 till 31st January, 1990. Thus, the respondent shall be entitled to the total amount of Rs.5,18,133.00 (Rs.4,22,973.00 being principal amount + Rs.95,160.00 towards the interest at the rate of 9% p.a.).
However, so far as the interest to be awarded from the date of suit is concerned, same shall be available to the respondent on the principal amount of Rs.4,22,973.00 at the rate of 6% per annum from the date of the suit till realization thereof.
23. In the result, the appeal is partly allowed. Respondent is held entitled to recover total amount of Rs.5,18,133.00 from the appellants. The respondent shall be entitled to interest on the principal amount of Rs.4,22,973.00 at the rate of 6% per annum from the date of the suit till realization thereof from the appellants.
The judgment and decree dated 30.10.2001 passed by the learned Civil Judge (S.D.) Bharuch in Special Civil Suit No. 150 of 1991 shall stand modified accordingly. No order as to costs.
(Jayant Patel,J.) (C.L. Soni,J.) an vyas