R. A. MEHTA, J. ( 1 ) ). The appellant-defendant had accepted the tender of the respondent-plaintiff and entrusted the work of the construction of the building of Medical College and Hospital at Surat to the respondent-defendant. The estimated cost of the tender was Rs. 7,94,642/- and the agreement was entered into in "b2" Form on 30th January 1964. The work order was issued to the respondent-plaintiff on 30th January 1964 and the work was required to be completed within one year, i. e. on or before 30th January 1965. The time was extended. Ultimately, the work was completed and certain payments were made. The respondent-plaintiff was aggrieved by non-payment of certain claims and therefore he filed Special Civil suit No. 210 of 1974 in the Court of the civil Judge (S. D.) at Surat. In respect of most of the items, the learned Trial judge has passed a decree in favour of the respondent-plaintiff and therefore the state has filed the present appeal. In respect of some of the items which were disallowed by the learned Trial Judge, the plaintiff has filed cross objections. ( 2 ) ). The claims allowed by the Trial Court are as follows: 1. Rs. 12,385/- in respect of using cement tiles on the terrace instead of rough Kota Stone. 2. 3. Rs. 159/- deduction for defective wooden shuttors. 4. Rs. 1,800/- Brass fittings instead of mortised locks. 5. Rs. 3,300/- For extra R. C. C. works 6. Rs. 17,232/- Loss of profit for the works included in the contract and not allowed to be done. 7.- 8. 9. Rs. 650/- Cartage. 10. Rs. 9,225/- G Penalty. 11. Rs. 6,480/- Interest at 9% on Rs. 72000/- paid late. 12. Rs. 1,ooo/- Expenses for extension of bank Guarantee. 13. Rs. 10,000/- Loss due to rise in prices of materials and labour during 1 years. Rs. 62,210/- ( 3 ) ). Although total of the aforesaid items allowed by the learned Trial Judge comes to Rs. 62,210/-, the operative part of the order states that the defendant shall pay to the plaintiff Rs. 66,210/ -. This is an obvious error of additional Rs. 4,000/ -. ( 4 ) ). The appellant-defendant is aggrieved by the aforesaid decree for the aforesaid claims and has challenged the same. ( 5 ) ). The respondent-plaintiff, having been aggrieved by the reduction of its claim no. 2 for Rs. 66,210/ -. This is an obvious error of additional Rs. 4,000/ -. ( 4 ) ). The appellant-defendant is aggrieved by the aforesaid decree for the aforesaid claims and has challenged the same. ( 5 ) ). The respondent-plaintiff, having been aggrieved by the reduction of its claim no. 2 for Rs. 2200/- in respect of plaster of extra thickness; claim No. 8 for Rs. 1600/- in respect of payment of octroi; claim No. 11 for Rs. 3520/- in respect of interest and claim No. 13 for Rs. 16000/- in addition to Rs. 10,000/- awarded by the Trial Court towards escalation in price of materials and labour, total Rs. 23320/ , has filed the Cross objections. ( 6 ) ). Claim No. 1: Rs. 12,385/- this claim is in respect of providing plain cement tiles on the terrace and the rate claimed is Rs. 145/- per 100 sq. ft. This work was originally required to be done as per tender Item No. 17 by providing and fixing to 2" thick rough tender or sucket stone flooring laid in lime mortar for which the tender rate was Rs. 70/- per 100 sq. ft. The work has been done by providing plain cement tiles, whereas the rate of Rs. 70/- was in respect of rough stone. The plaintiff has been paid at the rate of Rs. 70/- per 100 sq. ft. which was the rate for providing and fixing rough stone. The plaintiff has claimed Rs. 145/- per 100 sq. ft. for providing and fixing plain cement tiles on the basis of sanctioned schedule of rates for the relevant year for this item. ( 7 ) ). The learned Assistant Government pleader has submitted that the plaintiff was permitted to use plain cement tiles with a condition that the rate shall be rs. 70/ per 100 sq. ft. and therefore the plaintiff is not entitled to claim any higher amount. In the plaint, para 7 (Claim no. 1), it is alleged that this work of providing plain cement tiles was got executed as per the orders of the department. 70/ per 100 sq. ft. and therefore the plaintiff is not entitled to claim any higher amount. In the plaint, para 7 (Claim no. 1), it is alleged that this work of providing plain cement tiles was got executed as per the orders of the department. In the written statement paragraph 8, this is not denied and it is submitted that the claim put by the plaintiff as if it is an extra item is not correct and that the said work has to be paid according to the rate fixed in item No. 17 of the tender as decided by the Superintending Engineer. ( 8 ) ). The appellant-defendant has examined the Deputy Engineer at Exh. 186. In para 37 of his deposition, he has denied the allegation made in the deposition of the plaintiff that this change was made at the instance of the then minister of Health, who had visited the site. The Deputy Engineer has admitted that instead of Kota Stones, plain tiles have been used in the work of this item. But he states that the contractor was permitted to use plain tiles while he was told that he would not be paid extra charges. It is very unlikely and improbable that any businessman would use costlier materials to be paid at the lower rate. He has admitted in Para 38 of his deposition that plain cement tiles is costlier than rough Kota Stones and he has also admitted that the approximate rale of work of plain tiles done by the plaintiff would come to Rs. 151/- per 100 sq. ft. He also admitted that the work of plain tiles is not a tender item. ( 9 ) ). Exh. 267 is a letter written by the respondent-plaintiff to the Executive engineer. In that letter dated 15-6-1966, the plaintiff has stated that he had discussion with the Superindending engineer on the previous day and the plaintiff was instructed that Item No. 17 is to be considered as deleted and plain cement tiles and 4" thick brick bat concrete in lime mortar is to be provided in the terrace. There is no evidence to show that this was not directed by the superintending Engineer or that this was not the direction of the department. It is true that on earlier occasion by Exh. There is no evidence to show that this was not directed by the superintending Engineer or that this was not the direction of the department. It is true that on earlier occasion by Exh. 81 dated 6-5-1955, the plaintiff was told that the plaintiff may provide plain cement tiles instead of the stone on condition that even for using cement tiles for the terrace, he would be paid only at the rate of Rs. 70/- per sq. ft. and no higher rate would be payable. However, it was not agreed to by the plaintiff. This was in reply to the plaintiffs letter dated 12-4-1985 (Exh. 104 ). In that letter, while quoting tender Item No. 17, the plaintiff staled that this type of terraces resulls into leakages and involves additional expenditure. He has also referred to the visit of the then Health Minister who had instructed the Deputy Engineer in charge of Ihe work not to provide such terracing as it leaks terrible and brings disgrace to the department and Government for such wasteful expenditure. It is also stated in that letter that the Chief Engineer had visited the work in February 1965 and instructed to provide plain tiles in place of rough once. It was also pointed that in that region the rainfall is quite heavy and intense and therefore the terrace-portion should be protected by water-proofing and use of plain cement tiles and although the need for this change is accepted, the rate of Rs. 70/- was also sought to be insisted by the Government. However, it was not agreed to by the plaintiff. By the letter dated 3-6-1985 (Exh. 144), the Executive Engineer informed the plaintiff that for the change in the item, no confirmation was received from the higher authorities and the change in item may lead to certain complications at a later date and therefore the plaintiff was directed to carry out the work as per the accepted tender, and the plaintiff was directed to carry out the work of item No. 17 according to specifications of agreement. Even in spite of that, after about an year, in June 1966 the superintending Engineer had directed the plaintiff to do the work by using cement tiles and treating the item No. 17 as deleted. Even in spite of that, after about an year, in June 1966 the superintending Engineer had directed the plaintiff to do the work by using cement tiles and treating the item No. 17 as deleted. It is thus clear that the plaintiff has done this work under instructions of the department and the department has accepted that work. As stated by the deputy Engineer in his deposition para 38, the cost of such work would be Rs. 151/- per 100 sq. ft. The plaintiff has claimed Rs. 145/- per 100 sq. ft. and he has been paid at the rate of Rs. 70/.- per 100 sq. ft. This claim of the plaintiff for difference is fully justified and the plaintiff has done this work at the instance of the defendant and they are bound to make payment to him at a reasonable rate because there is no rate provided in the tender. When the defendants witness himself has admitted that the cost of such work would be Rs. 151/- per 100 sq. ft. , the claim of the plaintiff at the rate of Rs. 145/- per 100 sq. ft. is reasonable and justified and the learned trial Judge was right in allowing this claim and passing a decree for this claim. ( 10 ) ). Claim No. 2:rs. 2200/ -. It is a claim in respect of cement plast of extra thickness on one side of 9" wall. The learned Trial Judge has not discussed this claim at all for granting or refusing the same. Since that claim has not been granted, the plaintiff has filed cross-objections, and it is required to be considered on its own merits. ( 11 ) ). The plaintiff submits that he was required to apply cement plaster of " thickness. However, on the second side, the plaintiff was required to apply extra thick plaster of 3/4" thickness and this work was of 22000 sq. ft. and he had claimed Rs. 10/- per 100 sq. ft. The plaintiff has staled that tender-item is for a plaster of thickness and he has provided such plaster on one side. However, on the other side, on the instructions of the Executive Engineer he had to apply a plaster of 3/4 average. ft. and he had claimed Rs. 10/- per 100 sq. ft. The plaintiff has staled that tender-item is for a plaster of thickness and he has provided such plaster on one side. However, on the other side, on the instructions of the Executive Engineer he had to apply a plaster of 3/4 average. He has stated that the brick is always plain on one side and shorter on other side, and the other side is uneven and therefore extra thickness was required. In para 42 of his deposition, he has admitted that one side of brick would be uneven. Hence plaster on that side would be required to be done more and plaster of 3/44" thickness was required to be done on one side while on the side of even surface of the bricks, the plaster required was of thickness, and 3/4" thickness was required because of unevenness of the surface. The Deputy engineer in his deposition at para 9 has stated that the surface of wall on both the sides will be even, if bricks of the same size are used. However, if the bricks are of different sizes, one side would be even and the other side would not be even. As the plaintiff had not used the bricks of even size, the plaintiff was addressed a letter (Exh. 78) pointing out the defects and uneven surface of the bricks-structure and with a view to rectify the defect, the plaintiff was directed to apply plaster of 3/4" thickness; otherwise, the work will have to be rejected. In view of the aforesaid evidence, it is clear that as the bricks used by the plaintiff were not of uniform size and even thickness and as one side of the surface of the bricks-structure was even and other side was not even, with a view to cure this defect, the plaintiff was required to apply thicker plaster. However, on that account, he was not entitled to any extra payment. This claim of the plaintiff must, therefore, fail. ( 12 ) ). Claim No. 3:rs. 138/ -. The learned Judge has granted this claim only on the ground that the executive Engineer is required to give a notice in writing under Clause 17 of the tender, when there is any reduction in the rate. In this case, there is no question of giving any such notice. ( 12 ) ). Claim No. 3:rs. 138/ -. The learned Judge has granted this claim only on the ground that the executive Engineer is required to give a notice in writing under Clause 17 of the tender, when there is any reduction in the rate. In this case, there is no question of giving any such notice. It is not a reduction of rate, but it is due to the defective work that has been done that a reduction has been applied. In para 10 of his deposition, the Deputy Engineer has proved that in certain doors, there were defects and the plaintiff had affixed wooden strips to the shutters of the door-frames to make up the deficit in breadth and therefore the amount of Rs. 138/- was deducted for such defective doors and in that respect the plaintiff has been communicated by the letter (Exh. 121 ). The learned Judge has, without referring to this evidence and the document, has granted the claim only on the ground that there is no written notice. In fact, the clause of written notice would not be applicable to the present case. The plaintiff has not done the work as per the specifications and there is defect in the work, in respect of which a written intimation has been given by Exh. 121. The learned Trial Judge was, therefore, in error in allowing this claim and that part of the decree is required to be reversed. ( 13 ) ). Claim No. 4:rs. 1800/- the plaintiff has claimed Rs. 1800/- on account of brass fittings instead of mortised locks. The tender-item is of mortised locks and the plaintiff was asked to provide and fix brass fittings. The plaintiff has written the letters (Exhs. 239, 187, 195 and 196) to the defendant claiming extra amount because of brass fittings. The plaintiff has also proved quotations at Exhs. 94 and 95. He has claimed the rate at Rs. 30/- per door, i. e. Rs. 1800/- for 60 doors. The Deputy engineer has also admitted that a good quality of mortised lock costs Rs. 35/- to Rs. 40/ -. The learned Trial Judge was, therefore, right in allowing this claim and passing the decree. ( 14 ) ). Claim No. 5:rs. 3300/- the plaintiff has claimed this amount alleging that he had done extra work of fins, boxes, R. C. C. , stair-case railing, etc. 35/- to Rs. 40/ -. The learned Trial Judge was, therefore, right in allowing this claim and passing the decree. ( 14 ) ). Claim No. 5:rs. 3300/- the plaintiff has claimed this amount alleging that he had done extra work of fins, boxes, R. C. C. , stair-case railing, etc. and he has stated that this is not provided by the tender-items. Item No. 8 of the tender provides for laying cement concrete mix for R. C. C. work of columns footings slab, beams, lintels, Chhajas, etc. The fins are vertical sided attached to chhajas and box is a complete square of Chhaja and fins. These are clearly included in the tender No. 8 by the use of the words "chhajas etc. " The other works of stair-case and Pardhi would also be covered by this R. C. C. work and it cannot be said that the other items are extra items. The plaintiff has also not proved as to what is the quantum of work done in respect of items of stair-case and pardhi, etc. and has not proved the rate applicable to the same. In view of the fact that item No. 8 would cover the whole r. C. C. work, there is no question of any decree being passed in that respect and the learned Judge was, therefore, not justified in taking them as extra items and allowing this claim of the plaintiff. Therefore, the claim of the plaintiff in this respect has to be disallowed and decree in that respect reversed. ( 15 ) ). Claim No. 6: Us. 17,2327- the plaintiff has claimed that he has suffered a loss of profit of Rs. 17,232/- at the rate of 10%. This claim has been allowed on the ground that under Clause 15 of the tender, written notice is necessary before withdrawing any work and since no such notice was given, withdrawal of such work was held to be illegal and the plaintiff is held to be entitled to profit at 10%. The items which are mentioned as withdrawn items are items No. 20, 21, 23/a, 27, 34, 35 and 31 and the rough total of the completed works of these items would be near about rs. 17,000/- and if profit were to be calculated at 10% it would be about Rs. 1700/ -. The items which are mentioned as withdrawn items are items No. 20, 21, 23/a, 27, 34, 35 and 31 and the rough total of the completed works of these items would be near about rs. 17,000/- and if profit were to be calculated at 10% it would be about Rs. 1700/ -. The plaintiff in his evidence also at page 89 in Para 16, has admitted that the total of items not got done through him was Rs. 17,232/- and therefore he had demanded Rs. 1732/- as loss of profit. Even then, the learned Judge has curiously enough awarded the entire amount of Rs. 17,2327- as loss of profit. This is thoroughly erroneous and the result of utter non-application of mind by the learned Judge. When the value of the total work is Rs. 17,232/- and the loss of profit is claimed at 10% thereof and when the plaintiff has stated in his deposition that he demanded Rs. 1732/- as loss of profit, how could the learned judge award Rs. 17232/- as loss of profit ? this is beyond our comprehension. It is the total value of the work not done. In any case, the plaintiff is not entitled to even 10 per cent as loss of profit. Under clause 15 of the contract, the Government is entitled to require the contractor for any reason whatsoever not to carry out any particular work or part of the work and in such case the contractor shall have no claim to any payment or compensation whatsoever on account of any profit or advantage which he might have derived from the execution of the work in full but which he did not so derive in consequence of the full amount of the work not having been carried out. The learned Judge has brushed aside this clause merely on the ground that no notice in writing was given. There was no pleading whatsoever that such notice in writing was not given. In the absence of any pleading of this aspect, the plaintiff could not have relied upon this. If there was any pleading on this aspect, the defendant could have led evidence about the same. There was no pleading whatsoever that such notice in writing was not given. In the absence of any pleading of this aspect, the plaintiff could not have relied upon this. If there was any pleading on this aspect, the defendant could have led evidence about the same. In any case, this notice in writing would be in the nature of a directory requirement of Clause 15 of the contract and if the plaintiff had sufficient notice otherwise, the substantial requirement can be said to have been satisfied. Therefore, this claim for 10% of Rs. 17,232/- also cannot be sustained and this entire claim should have been rejected and the decree of the Trial Court in that respect is required to be reversed. ( 16 ) ). Claim No. 7:rs. 500/- this is a claim for Rs. 500/- in respect of forfeiture of deposit. This claim has been rejected by the Trial Court and there are no cross objections in respect thereof therefore, this claim need not be considered. ( 17 ) ). Claim No. 8:rs. 1600/ -. This claim relates to refund of octroi amount of Rs. 1600/ -. There is no discussion for granting or not granting this claim by the learned Trial Judge. Therefore, it has to be considered by us on its own merits. In this connection, the relevant clause in the tender is Clause 35 which provides that the octroi should be paid by the contractor who will be entitled to refund of such charges as are permissible under the rules on obtaining a certificate from the Engineer in charge that the materials were required for us. Thus, the contractor is liable to pay octroi to the local authorities and the contractor can gel refund from the local authorities. The only obligation on the Government is to issue a certificate and there is no obligation for paying the amount of octroi by the Government. Therefore, this claim of octroi-amount from the Government cannot be sustained and cannot be granted. Hence, this claim is dismissed. ( 18 ) ). Claim No. 9:rs. 650/- this is a claim for carting the necessary materials. The cement, steel, etc. which were to be supplied by the Government were to be supplied at the site in Surat. However, the contractor was required to lift them from other places such as navsari, Bharuch, etc. Hence, this claim is dismissed. ( 18 ) ). Claim No. 9:rs. 650/- this is a claim for carting the necessary materials. The cement, steel, etc. which were to be supplied by the Government were to be supplied at the site in Surat. However, the contractor was required to lift them from other places such as navsari, Bharuch, etc. The Government has admitted the liability for payment of the carting charges. However, they have disputed the amount claimed by the plaintiff. The Government had called the particulars of these items and they were furnished by the plaintiff as to what were the goods brought from which place. On those particulars, the Government had not quantified the amount of carting. The plaintiff has claimed only a small amount of Rs. 650/ -. That claim seems to be a reasonable one having regard to the nature and extent of the goods carried and the nature of times and distance covered. The decree in that respect is required to be confirmed. ( 19 ) ). Claim No. 10: Rs. 92251- claim No. 10 regarding return of the amount provided towards penalty and claim No. 13 regarding loss due to escalation in prices can be considered together. Therefore, this claim will be considered along with Claim No. 13. ( 20 ) ). Claim No. 11: Rs. 6480/- the plaintiff has claimed that a large amount of Rs. 72000/- was paid late after about 15 months of the completion of the work and on that amount he should have been paid interest at the rate of 12 %. The Trial Court has granted interest at the rate of 9% for one year and that amount is Rs. 6480/ -. The plaintiff by way of Cross Objections contended that the amount should have been paid as claimed in the plaint. On behalf of the government, it is submitted that this amount could not have been awarded at all. Although the plaintiff claims that the payment of Rs. 72000/- was delayed by 15 months, it appears that though the work was completed, the final bill thereof was submitted after about 15 months. However, the plaintiff himself has admitted that several amounts were paid during this period, such as: (1) Rs. 24316/- on 25-8-1967, (2) Rs. 19029/- on 4-11-1967, (3) Rs. 15441/- on 5-2-1867, (4) Rs. 3075/- on 27-2-1968, (5) Rs. 10268/- on 26-7-1968. However, the plaintiff himself has admitted that several amounts were paid during this period, such as: (1) Rs. 24316/- on 25-8-1967, (2) Rs. 19029/- on 4-11-1967, (3) Rs. 15441/- on 5-2-1867, (4) Rs. 3075/- on 27-2-1968, (5) Rs. 10268/- on 26-7-1968. The learned Judge has awarded interest as if the entire amount of Rs. 72000/- was paid late. In fact, as admitted by the plaintiff himself, substantial amounts were paid much before and therefore the learned Judge is obviously in error in awarding interest for the period of one year on the entire amount. As per the terms of the contract and the tender, clause 18, the final bill is required to be submitted by the contractor. The contractor submitted that bill in december 1967. Before that bill was submitted and after this bill was submitted, only an amount of Rs. 15,000/- or so was required to be paid and that was also paid within about a months time after submission of the final bill by the contractor. Thus, there is no delay on the part of the Government in making payment and therefore no interest can be awarded on any amount to the plaintiff. The decree passed in respect thereof is required to be reversed and the Cross objections are required to be rejected. . ( 21 ) ). Claim No. 12:rs. 1000/- this claim of Rs. 1000/- is for expenses for extending the Bank guarantee. In Para 19, the plaintiff has submitted that the original Bank guarantee was expiring in january 1967. However, the final bill was not prepared and payment was not made and hence the Bank guarantee was required to be extended. But, as noticed earlier, it was the duty of the contractor to prepare and submit the final bill and if he has failed in doing so and he was required to renew the Bank guarantee, it cannot be said that he has any claim for extension of such Bank guarantee. The learned Judge was, therefore, in error in allowing this amount and that part of the decree is also required to be reversed. ( 22 ) ). Claim No. 10: Rs. 9225/- claim No. 13: Rs. 10,000/ -. Claim No. 10 is for Rs. The learned Judge was, therefore, in error in allowing this amount and that part of the decree is also required to be reversed. ( 22 ) ). Claim No. 10: Rs. 9225/- claim No. 13: Rs. 10,000/ -. Claim No. 10 is for Rs. 9225/- which is the amount recovered by the government for delay in completion of the work, and as against that, the contractor has claimed damages and loss due to escalation in prices of materials and labour due to delay in the work. The learned Counsel for the Government has submitted that under Clause 2 of the tender the time allowed for carrying out the work has to be strictly observed by the contractor and has been reckoned from the date on which the work order was given to the contractor and the work should have been proceeded throughout the stipulated period with due diligence and time shall be deemed to be the essence of the contract on the part of the contractor and the contractor shall pay as compensation an amount equal to 1% or such smaller amount as the superintending Engineer may decide, of the amount of the estimated cost of the whole work that remains uncommenced or unfinished after the proper dates. It is further submitted that the contractor had sought an extension of six months and that was given and thereafter he had sought another extension that was refused and therefore the delay after the refusal of the extension of time has to be compensated by the contractor and therefore the penalty amount has rightly been recovered from the contractor. It is true that the work was to be completed within one year and thereafter one extension of six months was sought by the contractor and was given by the government and thereafter further extension sought by the contractor was refused by the Government. None-the-less, it clearly appears that in the initial period though the work-order was given on 30-1-1964 and the work was to be completed within one year, i. e. before 30-1-1965, it appears that the time-bound and stage-wise progressive programme was not given by the authorities. The soil analysis report was received on 9-3-1964. The drawings were given on 16-2-1964 and some of the drawings and designs were supplied in january 1965. The soil analysis report was received on 9-3-1964. The drawings were given on 16-2-1964 and some of the drawings and designs were supplied in january 1965. In these circumstances, the trial Court came to the conclusion that it cannot be said that there was any negligence or intentional delay on the part of the plaintiff. It is also an admitted position that itemwise programme was not fixed by the Government. In these circumstances, it cannot be said that there was any negligence on the part of the contractor in not commencing the work and not completing the work in the time fixed. No hearing was given before imposing the penalty and therefore also this unilateral recovery would be bad. Moreover, the Government has not proved that it had suffered any damage or loss due to the delay in completion of the work. In absence of any evidence, the question of imposing and recovering the penalty and damages from the plaintiff cannot arise. Therefore, the learned Trial judge was right in allowing this claim no. 10 for return of the penalty amount and the decree in that respect is required to be confirmed. Claim No. 13 is on the ground that there was delay of about two years in completion of the work and in this delayed period the plaintiff had carried out the work of about two lacs of rupees and during this period the prices of materials and labour had escalated and therefore he should be allowed a higher rate on the tender rate. He has claimed that he should be allowed 15% on the work worth rupees two lacs and in the Trial Court he claimed Rs. 30,000/ -. The learned Trial judge has awarded Rs. 10,000/ -. This is challenged by the Government. The plaintiff has filed Cross Objections that he should have been awarded Rs. 16,000/- more. It is an admitted position that there is no escalation clause in the present tender. ( 23 ) ). The learned Counsel for the plaintiff-contractor has relied on the judgment of the Supreme Court in the case of Hyderabad Municipal corporation v. M. Krishnaswanii mudaliar and Another, AIR 1985 supreme Court, 607. In that case, the work was to be completed within one year. But the contractor was requested to spread over the work for two years or more due to less budget provision. In that case, the work was to be completed within one year. But the contractor was requested to spread over the work for two years or more due to less budget provision. However, the contractor was agreeable to spread over the work for two years more as suggested, on condition that extra payment will have to be made to him in view of increased rates either of the material or wages. The Government had not replied to this and had not indicated that such extra increased rates would be paid. But the Government extended and spread over the work for a long period. In these circumstances, the plaintiff had submitted a final bill claiming 20% extra, over and above the original rates agreed upon between the parties. The Supreme Court observed that the high Court was right in taking the view that the Government was liable to make extra payment for the work done in the spread-over period of three years. In the present case, there is no such condition insisted upon by the contractor for delay in the work of extension of the period. In fact, the extensions were sought by the contractor himself. First extension was granted by the Government. Second extension was not granted by the government and at any stage the contractor had not indicated that he would be claiming extra payment because of any such delay. In the present case, in the tender-conditions, there is an express condition No, 10, which reads as follows : "10. Under no circumstances shall a contractor be entitled to claim enhanced rates for any items in this contract. " thus, not only that there is no express condition or escalation clause in this contract, there is an express and specific condition against claiming higher rate. Moreover, there is no stipulation or condition at any stage by the plaintiff-contractor that due to delay in the work, the plaintiff would charge higher rate. In fact, the plaintiff has not been able to prove that the entire delay was attributable to the Government. Although, initially, there was some delay in obtaining soil conservation report, drawings, etc. but thereafter it would not be possible to attribute delay to the government. For all these reasons, the plaintiffs claim for 15% higher rate for the work done in this period is not justified. The plaintiff has also not shown ! Although, initially, there was some delay in obtaining soil conservation report, drawings, etc. but thereafter it would not be possible to attribute delay to the government. For all these reasons, the plaintiffs claim for 15% higher rate for the work done in this period is not justified. The plaintiff has also not shown ! as to which work was done and when. He has stated that he had done work worth two lacs of rupees during 11/2 years and claimed 15% on this entire amount. He should have shown as to how much he had done in last month or last quarter. He cannot claim the same higher rate which he would have done in the first month or first quarter of this period. Thus, the plaintiff has failed to prove that he is entitled to any higher rate. ( 24 ) ). The learned Counsel for the respondent-plaintiff also relied on the judgment of the Supreme Court in the case of P. N. Paul v. Union of India, air 1989 Supreme Court, 1034. In that case, the Arbitrator had awarded escalation charges and costs, in absence of escalation-clause and it was challenged on the ground that it was not a matter referred to the Arbitrator and the arbitrator had travelled beyond his jurisdiction. The Supreme Court negatived this contention holding that the dispute that was referred to the Arbitrator was as to who was responsible for the delay, what are the repercussions of the delay in completion of the building and how to apportion the consequences of the responsibility. Thus, the dispute was referred to the Arbitrator and therefore the Arbitrator had jurisdiction to make an award in this respect. This judgment is, therefore, not a proposition that in every contract for every delay to whomsoever attributable, escalation has to ge given to the contractor. Even though escalation is a normal incidence arising out of time in this inflationary age in performing any contract, it cannot be straightway granted irrespective of the terms of the agreement and the facts of the case. In the present case, Clause 10 clearly bars any claim for increased rate for delay. Secondly, it has to be proved that there was delay unreasonably caused by the Government. In the present case, none of this is proved by the plaintiff and therefore the plaintiff is not entitled to any amount under this head. In the present case, Clause 10 clearly bars any claim for increased rate for delay. Secondly, it has to be proved that there was delay unreasonably caused by the Government. In the present case, none of this is proved by the plaintiff and therefore the plaintiff is not entitled to any amount under this head. Therefore, the decree for Rs. 10,000/- passed under this head by the Trial Court is required to be reversed and the Cross Objection in respect thereof is required to be dismissed. ( 25 ) ). The learned Trial Judge has, while partly allowing the claim, has saddled the appellant-defendant with costs for the entire claim. This is also not justifiable. Costs, if at all, could have been awarded only on the amount decreed. Therefore, that also will require to be modified. ( 26 ) ). In the result, Cross Objections fail and are dismissed with costs throughout. ( 27 ) ). The First Appeal is partly allowed and the decree is confirmed in respect of following amounts only: claim No. 1: Rs. 12. 385/- claim No. 4: Rs. 1,800/- claim No. 9: Rs. , 650/- claim No. 10: Rs. 9,225/- total: Rs. 24,060/- thus, the decree of the Trial Court is confirmed for Rs. 24,060/- with proportionate costs throughout. The rest of the claim of the plaintiff is dismissed with proportionate costs throughout. The learned Trial Judge has awarded interest at the rate of 9% per annum from the date of the suit till realisation. That is confirmed. The respondent-plaintiff, if he has realised the amount as per the judgment and decree of the Trial Court, shall return the excess amount for restitution under the decree of this Court with 9% interest from the date on which the amount was paid to him till the date when such amount is repaid to the appellant - defendant. Order accordingly. .