The present appeal has been filed by the appellants-State original defendants being aggrieved with the impugned judgment and order rendered in Special Civil Suit No. 47/83 by the learned Civil Judge (S.D.), Kutch at Bhuj dated 7.1.1989 on the grounds stated in the memo of appeal, inter alia, that the judgment and decree is contrary to the material and evidence on record. It is also contended that the court below has failed to appreciate the oral evidence. It is contended that the court below ought to have appreciated that the material used by the respondent-original plaintiff was not of the specified size and therefore a notice was issued for the same. Thereafter, the respondent-original plaintiff had agreed to get the material according to the appropriate size and grade and thereafter also the respondent-original plaintiff did not carry out the work of watering and rolling. Therefore, it is contended that the court below has erred in coming to the conclusion that the department having carried out the watering and rolling work at the site, the material used by the respondent-original plaintiff (contractor) was of the specific quality. It is also contended that the court below ought to have appreciated that the respondent-original plaintiff (contractor) was informed by the department vide letter dated 12.5.1983 to complete the work, and as it did not start the work and was in default, the respondent-original plaintiff was not entitled for any amount as claimed.
2. Heard learned AGP Shri P.P. Banaji for the appellants-State and learned counsel Shri J.R. Nanavati for the respondent-original plaintiff.
3. Learned AGP Shri Banaji has referred to the papers and the impugned judgment and submitted that the respondent-original plaintiff (contractor) was given the work which it was required to complete within the stipulated period. However, it has not completed the work and had also not used the material specified in the contract and therefore notices were issued asking the respondent-original plaintiff to use the specified material and complete the work. Learned AGP Shri Banaji submitted that in fact the Vigilance Commission had verified and made the report and laboratory testing of the material was also made. He also submitted that as per the contract, the respondent-original plaintiff was required to do the work of metal moram whereas, admittedly, it had not used the material as it was not as per the specification. He has also referred to the evidence including the deposition of the Executive Engineer, Jr. Engineer and the respondent-original plaintiff. He pointedly referred to the letter exh.70 and submitted that by the said letter the respondent-original plaintiff was asked to stop the work. Learned AGP Shri Banaji submitted that it clearly suggests that the material was not according to the specification and even the progress of the work was slow. He submitted that by registered letter respondent-original plaintiff was asked to start the work again. Therefore, as the respondent-original plaintiff had not completed the work within the stipulated period and as there was no explanation, the respondent-original plaintiff was liable and therefore it is not entitled to the claim made in the suit. He submitted that the court below ought to have appreciated these aspects and the material and evidence on record. He submitted that as the relevant aspects including the material and evidence have not been considered, the judgment and order is erroneous. He has also referred to the correspondence including exhibits 126, 127 and submitted that not only the respondent-original plaintiff had not completed the work within the stipulated period, but even the material was not according to the specification. He strenuously submitted that even thereafter an opportunity was given to the respondent-original plaintiff by notice to use proper material and complete the work which it has failed. He submitted that the court has failed to appreciate this aspect and merely because the watering and rolling work was done by the department, the presumption has been made that the material was as per the specification and grading, otherwise such work would not have been permitted. He has therefore submitted that the present appeal may be allowed.
4. Learned counsel Shri J.R. Nanavati referred to the material and evidence on record and submitted that the tender was invited for construction of the road from Bhuj to Mandvi and the time-limit was 18 months. He submitted that though the contention is raised that the work was not completed in time, in fact, the work has been satisfactorily completed and the payment has also been made to the respondent-original plaintiff. He submitted that measurement was also taken by the appellant-department for the work done and after that the payments have been made. Learned counsel Mr. Nanavati pointedly referred to the evidence including the deposition of the Executive Engineer at exh. 119 and the deposition on behalf of the respondent-original plaintiff at exh. 58 along with the correspondence. He strenuously submitted that in fact if the evidence of respondent-original plaintiff is considered, the present appeal deserves to be dismissed. For that he pointedly referred to the material and evidence including deposition of Dy. Executive Engineer at exh. 118, Executive Engineer Nikhilesh at exh. 119, deposition of Jr. Engineer at exh. 121 and executive engineer B.K. Suthar at exh. 125.
5. He has also referred to the correspondence and submitted that if this evidence is considered it is evident from the material and evidence that there is no testing done by the Vigilance Commission. He submitted that though a reference is made to the Vigilance that the Vigilance Commission had made the checking and the material was not as per the specification and gradation, no such report of the Vigilance Commission has been placed on record. He has also referred to the letter at exh. 70 dated 12.3.1982 and submitted that as per this letter there was some checking by the Vigilance. However, it cannot be presumed that the Vigilance Commission had taken away the papers or the files or the material. He submitted that there is no such evidence that samples were taken or any testing was made. He pointedly referred to the admission in the cross-examination by the department and referring to the deposition at exh. 118 he submitted that it has been admitted that the contractor was required to do the work of spreading the metal moram and watering and rolling work was to be done by the department.
6. Learned counsel Mr. Nanavati submitted that as per the contract, after the metal was spread, watering and rolling work was to be done by the department and it is also stated in the examination-in-chief by this witness that the material was do be tested in the laboratory by taking samples and it is also stated that in this work the sample was taken and after the testing in the laboratory as the material had passed the test, the submission that it was not according to the specification or grading cannot be believed. He further submitted that it is also admitted that no notice has been served to the respondent-original plaintiff (contractor) stating that the material was not according to the specification or grading. He submitted that this witness states about the vigilance checking and the fact that the vigilance commission had found that it was not according to the grading. There is no such report or material placed on record, nor there is any communication or notice to the respondent-original plaintiff (contractor).
7. He pointedly referred to the evidence and submitted that there is inconsistency in the evidence of the appellants itself. He submitted that if the sample was with the Vigilance Commission and if it was verified and the sample/material was taken by the Vigilance Commission, something ought to have been placed on record. However, admittedly, no such report is there. Learned counsel Shri Nanavati therefore submitted that if the Vigilance Commission had made the inspection and taken the sample and if the sample was not found according to the specification, there has to be some report.
8. Further, learned counsel Shri Nanavati submitted that according to the terms of the contract, if the material was not according to the specification, then, the contractor would be paid at the reduced rate. There is no such evidence placed on record that on the basis of any such report or even recommendation by the Vigilance Commission, the payment was made to the respondent-original plaintiff (contractor) at the reduced rate. Again, he has referred to the evidence and submitted that in fact the witness on behalf of the department himself has admitted that the respondent-original plaintiff (contractor) was required to do the work of spreading the metal moram and the department was required to do the work of watering and rolling. He has admitted that the sample of metal moram was tested by the department in the laboratory and after it was found proper the permission was given for spreading it. He therefore submitted that the material was tested by the defendant in the laboratory and after it has been approved it would have been permitted to be used. Further, after this work is done the subsequent stage of the work by the department like watering and rolling has been proceeded with by the department. Learned counsel Shri Nanavati therefore submitted that it is too late now to raise any such contention in view of their own evidence and admission of the evidences.
9. Learned counsel Shri Nanavati submitted that the bogey of vigilance case been raised but there is nothing on record to show that any notice was given by the Vigilance Commission. There was no report made by the Vigilance Commission or that after the sample was taken by the Vigilance for its inspection, what had happened to such sample. He submitted that there is no such report with regard to whether the sample was not according to the specification. Further, if it was not according to the specification, no such notice has been given by the Vigilance Commission. Learned counsel Shri Nanavati submitted that if it was so, then the work would have been stopped which is not the case. Further, learned counsel Shri Nanavati submitted that, on the contrary, the department has not resorted to any clause in the agreement that the respondent-original plaintiff (contractor) could be paid at the reduced rate if the material was not according to the specification and grading. He submitted that, on the contrary, the payment was made according to the agreed rate and not at the reduced rate. There is no evidence that before applying the reduced rate any notice was issued.
10. Similarly, learned counsel Shri Nanavati submitted that if the work was to be completed within the stipulated period and if it was not done, the respondent-original plaintiff (contractor) would have been served with the notice. Learned counsel Shri Nanavati submitted that in fact the work was completed satisfactorily and therefore the payment has been made. He submitted that, therefore, by implication even if there was some delay, it was condoned and the time was extended. He submitted that in fact the letter at exh. 86 is required to be considered which is addressed by the respondent-original plaintiff (contractor). He submitted that this letter would make the position clear. He further submitted that the letter exh. 70 is required to be read with the letter exh. 88. Therefore, learned counsel Shri Nanavati submitted that even the measurement book which is maintained by their own office also suggest that the work was completed and the measurement was taken.
11. Learned counsel Shri Nanavati, again, referring to exh. 70, submitted that the time was not the essence of the contract and there was no question of any extension. By letter at exh. 70 that the appellants-original defendants had addressed, the work was stopped. However, he submitted that this letter does not indicate that respondent-original plaintiff (contractor) had left the work and had gone away. In fact, it suggests that the appellant was required to stop the work and the respondent-original plaintiff (contractor) cannot be blamed for any delay. Learned counsel Shri Nanavati therefore submitted that the present appeal may not be entertained.
12. In view of rival submissions, it is required to be considered whether the present appeal can be entertained or not.
13. The points which are required to be considered and decided with reference to the issues involved are, whether it could be said that the material was not according to the specification, whether the respondent-original plaintiff (contractor) was liable for not completing the work within the stipulated time, and whether the respondent-original plaintiff (contractor) had completed the work as per the tender?
14. Form the discussion made hereinabove and the material and evidence on record, two aspects are required to be considered. One, whether the material was not according to the specification? Though this contention has been raised with reference to even the Vigilance Commission, as admitted in the evidence of the officers of the appellants itself, there is no evidence with regard to the report of the Vigilance Commission. Admittedly, on the one hand, it is claimed that there was some vigilance inquiry. No report of the vigilance commission is placed on record. Moreover, though it is claimed that the Vigilance Commission had visited the site and taken the sample, there is no such report that the sample was inferior or not up to the specification. Again, it is also stated that if the sample was taken in the presence of the contractor, then there has to be some evidence about having counter-signed the procedure of taking sample, testing and the report. There is no evidence except the say that orally the respondent-original plaintiff (contractor) was informed but no letter or notice has been issued. On the other hand, there is admission in the evidence of the officer of the appellant at exh. 118 that before spreading the material of metal moram the testing was made by the department and only after the approval it was permitted to be spread. Further, it is stated that only after such material is used and spread by the respondent-original plaintiff (contractor), watering and rolling work was to be done by the department. It is also stated that if the material was not according to the specification or grading, then the department would not permit the use of such material and would not proceed further with the work of watering and rolling. Admittedly, there is no notice given to the respondent-original plaintiff (contractor) and the letter at exh. 89 addressed by the appellant-original defendant to respondent-original plaintiff (contractor) dated 12.5.1983 it is an accepted position that no report was made by the Vigilance Commission for the inspection made in January 1982. On the other hand, admittedly, the payment has not been done according to the reduced rate though it is permissible under the terms of the contract. There is no notice for such payment at the reduced rate. No officer has been examined from the vigilance commission nor even any officer who has been examined has stated about the payment at the reduced rate.
15. The court below has referred to the 'Fundamentals of Public Works Procedure and Accounts' by K.N. Pandya referring to the poor workmanship and it refers to the fact that if the material is not approved and it is not according to the specification, the work has to be stopped and the engineer or site engineer in charge can stop the progress of the work. The junior engineer who is required to visit and scrutinize the work every day would cross check with regard to the quality of the work. Further, if the material is not according to the specification and is not approved, then the department is required to inform the contractor by registered AD notice. No such statutory procedure has been followed. Similarly, the measurement book has been there when the payment was made to the respondent-original plaintiff (contractor) for the work and it has been paid at the regular rate and not at the reduced rate. Admittedly, watering and rolling work which was required to be done by the department has been done by the department which would imply that the spreading of material by respondent-original plaintiff (contractor) was done properly. If the material was not according to the specification which was required to be spread, the next stage of watering and rolling by the department would not have been proceeded with. In fact there is no notice for such inferior or substandard quality of the material except the correspondence like the letter at exh. 70. Again, a close look at such letters exh. 70 and exh. 86 does not justify the submissions made by the appellants with regard to the substandard material.
16. Another facet of the argument that the work was not completed according to the terms of the contract and the respondent-original plaintiff (contractor) had delayed the work and had been served with the notice is also required to be considered in background of the discussion made in the impugned judgment. The impugned judgment has referred to the same book and has referred to the extension of time-limit. Admittedly, the time was not the essence of the contract and in fact there is no proposal for extension of the time. Much emphasis given on the letter at exh. 70 is required to be considered in totality of the entire evidence. As rightly contended, this letter does not indicate that the work was abandoned. However, if the work was stopped for some time, it would not be sufficient to presume that the work was abandoned. In fact, the correspondence would make the position clear that measurements were done by the officers of the department which is evident from the letter at exh. 104. At the same time, the communication exh. 83 is also required to be considered that the order has been passed. By the letter exh. 101 which is addressed by the Executive Engineer, the appellant original defendant, to the plaintiff, the plaintiff was asked to do the work and he was informed that according to the terms of the agreement the work order was given on 25.5.1981 and he was asked to start the work again. Similarly, the letter has been addressed by the respondent-original plaintiff (contractor) dated 12.3.1982 for payment and the reply has been given by the department that as the papers have been taken by the Vigilance Commission, the bill cannot be considered. However, there is no record produced with regard to the Vigilance Commission. The letter exh. 83 addressed by the department to the plaintiff asking the plaintiff to make mortar according to the specification which was oversize or undersize has been replied by the plaintiff vide letter exh. 85. It is clearly stated in this letter addressed by the plaintiff to the appellant original defendant that the material which has been approved has been used and thereafter the department has also proceed with the work of watering and rolling. It is stated that due to transport and other environmental reasons the sand could not be spread.
17. It is required to be mentioned that the letter at exh. 88 addressed by the Executive Engineer to the respondent-original plaintiff (contractor) refers to the fact that there was a dispute with regard to the specification of the material and ultimately it was settled that payment should be made at the reduced rate and the work can proceed. However, the respondent-original plaintiff (contractor) had not proceeded with the work and again it has been stated that according to the report of the Vigilance Commission, the material is not according to the specification and therefore it should be removed as per the letter/notice at exh. 88.
18. As discussed above, there is no vigilance report brought on record and these submissions cannot be accepted coupled with the fact that the payment has not been made, in spite of such notice, at the reduced rate. It is in these circumstances the contention with regard to the substandard material or the work having not been carried out according to the terms of the contract within the stipulated period is without any basis. The trial court has considered the aspect of payment of interest and the outstanding dues and having considered the same in detail, has passed the order allowing the suit by the plaintiff for the outstanding dues, which cannot be said to be erroneous.
19. It is in these circumstances, in light of the aforesaid discussion and the material and evidence on record, the present appeal deserves to be dismissed as this court is broadly in agreement with the reasoning given and the conclusion arrived at. The appeal is dismissed. No order as to costs.
(Rajesh H. Shukla, J.) (hn) Top