JUDGMENT - D.J. MOHARIR, J.:---This appeal is directed against a money decree of Rs. 19,099/- passed against the defendants in a suit for recovery of his dues by a contractor engaged by the defendants. 2. The appellants-defendants is the Maharashtra State Electricity Board (hereinafter referred to as the M.S.E.B.) and the second defendant is its Assitant Controller of Stores at Nasik Road. The defendant called for tenders under a tender notice dated 28th August 1971 pertaining to a transporting contract to be given for the year 1972 for its Nasik region. The contract to be given was for clearing, unloading, loading, transporting and stacking of equipments and material of all description and types including heavy machinery received by the Stores of the Defendant at Dhule through Railways, booked in wagons or in small bogies and through road transport to their Store centre as also from Store Centre to the railway station as would be directed by the officer in charge of the stores centre concerned. The respondent-plaintiff who was one of the persons who submitted his tenders in this behalf and the same was accepted as per Exhibit 119. A letter of indemnity was also issued on 3rd January 1972 as is admitted. 3. The respondent-plaintiff's work accordingly commenced with effect from 1st January 1972 and it went on, however, only upto 30th September 1972 on which date he gave a notice Exhibit 124 to the appellant-defendant M.S.E.B. informing that with effect from 1st October 1972, he would discontinue the work as per the contract and that the contract would as such stand terminated. It is also admitted, therefore, that no work was done by the respondent-plaintiff transport contractor from 1st October 1972 onwards. 4. The reason for so terminating the contract, according to the plaintiff, was this: Under the terms and conditions of the contract the respondent-plaintiff was to present his running bills on a fortnightly basis in triplicate together with relevant documents. These were to be submitted to the operating officer of the M.S.E.B. at Dhule. Separate bills in respect of separate freight charges and town charges were also to be submitted. In its turn, under the terms and conditions as agreed upon, the defendant M.S.E.B. was to make the payment of the bills within two months of the plaintiff-contractor's submission thereof. These were to be submitted to the operating officer of the M.S.E.B. at Dhule. Separate bills in respect of separate freight charges and town charges were also to be submitted. In its turn, under the terms and conditions as agreed upon, the defendant M.S.E.B. was to make the payment of the bills within two months of the plaintiff-contractor's submission thereof. The respondent-plaintiff had accordingly carried on the work of transporting goods from the railway station at Dhule to the Stores of the appellant-defendant. He had in that regard submitted 20 bills to the defendant for being passed and paid out. These were submitted in the period as also in respect of the period of his work i.e., 1st January, 1972 to 30th September, 1972. None of these bills was, however, and to the respondent's complete frustration, paid by the defendant M.S.E.B. By a letter dated 10th October, 1972 (Exhibit 125), the M.S.E.B. made a reply to the plaintiff's letter at Exhibit 124 dated 30th September 1972 and informed him that his bills were under scrutiny, that these would shortly be paid also, after making deductions for the loss of material, towards the security deposit and towards sundry recoveries, etc. He was also called upon not to discontinue the work as the transport contractor. It is the plaintiff's case that it is because no payment whatsoever was made to him under these bills, the first set of five running bills having been submitted as far back as on 11th April, 1972, that he went short of funds and found it impossible to operate his vehicles and carry out his obligation under the contract. It is, therefore, that he had been compelled, because of the attitude on the part of the defendant M.S.E.B. in not making payments, to terminate the contract. It appears that when the plaintiff thus terminated the contract, the defendant M.S.E.B. engaged another transport contractor Din Mitra Malvahatuk Mandal for the remaining period of the year. 5. According to the plaintiff, he was entitled to Rs. 16,926.59 p. towards his dues and additionally Rs. 2,101/- which he has deposited with the M.S.E.B. towards security deposit which was to be Rs. 4,200/-. He is also entitled to Rs. 22.41 as interest at the rate of 9% from 1st January, 1973 till the date of the suit and further Rs. 50/- as notice charges. 16,926.59 p. towards his dues and additionally Rs. 2,101/- which he has deposited with the M.S.E.B. towards security deposit which was to be Rs. 4,200/-. He is also entitled to Rs. 22.41 as interest at the rate of 9% from 1st January, 1973 till the date of the suit and further Rs. 50/- as notice charges. That was the extent of the claim in his plaint which was presented on 2oth March, 1973. 6. The claim was resisted by the defendant firstly on the premise of territorial jurisdiction. His contention is that the transporting agreement between the parties came to be executed at the Nasik head quarters or the Nasik division or circle of defendant M.S.E.B. and, therefore, the Court at Dhule had no jurisdiction to entertain the same. The second contention was that the plaintiff was not entitled to any relief what soever and could no, therefore, claim any dues in respect of the work which had been done by him till 30th September, 1972 for the reason that he had illegally terminated the contract between the parties which was for the period of the one full year. The third contention was in the nature of a set off. Referring to term Nos. 8, 10, 13, 19, 21 and 34 of the tender which was carried over into the contract, the defendant submitted that the plaintiff had acted in breach of these and was on that account liable to pay Rs. 14,896,98 to the defendant M.S.E.B. There was a term and condition that the plaintiff was to submit his running bills in a fortnightly manner and he had failed to do so. It was a set of five bills which he had submitted, all together, for the first time on the 11th April, 1972 and pertaining to the period 1st January, 1972 to 31st March, 1972. There was a measurement book which was maintained by the defendant M.S.E.B. and the plaintiff was required to sign and acknowledge the entires therein; there was no deliberate evasion on the part of the defendant of the duty to make payment to the plaintiff. Nor could it be contended by the plaintiff that the contract between the parties had to be most unwillingly and inevitably terminated on account of any lapse on the part of the defendant in its duty. The suit therefore, deserves to be dismissed with costs. 7. Nor could it be contended by the plaintiff that the contract between the parties had to be most unwillingly and inevitably terminated on account of any lapse on the part of the defendant in its duty. The suit therefore, deserves to be dismissed with costs. 7. The learned Judge of the Trial Court upon consideration of the evidence as led by the parties came to the conclusion that in the first place the plaintiff had worked in terms of the contract and worked as the transport operator for the transport of the defendant M.S.E.B.'s equipments and material for the period between 1st January, 1972 and 30th September, 1972. For the word done in this period, he was, as claimed by him, entitled to Rs. 16,926.59 p and about which as he has further observed in his judgment, there was in fact no dispute also. That the plaintiff had submitted in all 20 bills to the defendant for being cleared and payment being made was a fact duly established and the defendant's contention that these bills were not cleared or that these bills had required the defendant M.S.E.B. to make any back reference to the plaintiff, before the expiry of the period of two months within which payment was to be made, was also not true and correct. The breach, in regard to the contract in question was on the part of the defendant M.S.E.B. and it was the plaintiff who was, by reason of such non-payment in spites of his repeated demands, prevented from carrying on further work. It was the refusal on the part of the defendant M.S.E.B. to make payment of the amount stated in the 20 bills that in the first place disabled him from working further on the contract for the remaining period of the year and secondly that failure on the part of the defendant in fact relieved him of any liability to carry on further work in terms of the contract. The plaintiff was, therefore, found entitled to Rs. 16,926.59 p. as the amount due to him under the bills as also to a refund of Rs. 2,101/- which he had deposited towards the security deposit of Rs. 4200/-. A decree for Rs. 19,099/- with a direction to pay interest at the rate of 6% per annum on the principal amount of Rs. 19,026.59 came to be passed. 16,926.59 p. as the amount due to him under the bills as also to a refund of Rs. 2,101/- which he had deposited towards the security deposit of Rs. 4200/-. A decree for Rs. 19,099/- with a direction to pay interest at the rate of 6% per annum on the principal amount of Rs. 19,026.59 came to be passed. The aggrieved defendant has, therefore, come up in appeal. 8. Dealing with the first question of territorial jurisdiction of the Court of Civil Judge Jr. Division at Dhule to entertain the suit, the argument advanced by learned Counsel Smt. Baxi for appellant-plaintiff is that, in view of term No. 34, any dispute or difference arisen between the parties in regard to the implementation of the contract would be referable only to the Assistant Controller of Stores at Nasik for a final relief and that jurisdiction for all suits and legal proceedings in regard to the contract would be in the Court of '....' This is a very significant blank in the tender as it was issued. Exhibit 119 is in reality the letter issued by the defendant M.S.E.B. to the plaintiff that his offer in respect of the tender had been accepted and that in accordance with the terms and conditions of the tender he would be required to perform his part of the contract. As regards jurisdiction of the Court in the event of any suits or other legal proceedings starting between the parties, the term No. 34 is however found to read some what different. It would be proper to reproduce the term No. 34 as it is found in the tender and the same term No. 34 as it is found in this letter acceptance of the plaintiff's offer at Exhibit 119. In the tender Exhibit 118, term No. 34 reads as under:--- 34. If at any time, any dispute or differences, whatsoever, shall arise between the contractor and Stores Centres concerned, upon or in relation to or in connection with the contract, the same shall be referred to Asstt. Controller of Stores, Major Stores 'A', Nasik Road for the final ruling. However, the work shall be continued during such period till the final decision of the A.C.O.S. jurisdiction for all suits/legal proceeding in regard of this contract shall be the Court of ............. Controller of Stores, Major Stores 'A', Nasik Road for the final ruling. However, the work shall be continued during such period till the final decision of the A.C.O.S. jurisdiction for all suits/legal proceeding in regard of this contract shall be the Court of ............. Term No. 34 as one reads it in the letter Exhibit 119 is as under :--- "34. If at any time, any dispute of differences, whatsoever, shall arise between the Contractor and Stores Centre concerned, upon or in relation to or in connection with the contract, the same shall be referred to Asstt. Controller of Stores, Major Stores 'A' , Nasik Road for the final ruling. However, the work shall be continued during such period till the final decision of the A.C.O.S. Jurisdiction for all suits/ legal proceeding in regard of this contract shall be the District Court." The portion of term No. 34 under lined as above will also reveal that the particular District Court, the jurisdiction of which is accepted by parties for the purposes of resolution of any disputes or differences and consequent suits or legal proceedings is once again left blank. On this single premises itself it would not be open for the defendant to contend that the agreement between the parties was for invoking jurisdiction of the Court at Nasik and none other in the matter of any dispute between them. On the other hand, as the learned Judge of the Trial Court has rightly observed, even if the execution of the contract had taken place at Nasik as such, it was more than well understood by the parties that the performance of the plaintiffs part of the contract was to be confined to Dhule i.e. transporting the equipment and material received by the defendant M.S.E.B. through the railways from the Dule Railway Station to the Central Stores at Dhule. Therefore, and in any event, it is entirely undiputable now that a substantive part of the contract was to be performed at Dhule and, therefore, part of the cause of action for the present claim arose within the jurisdiction of the Civil Court at Dhule. Therefore, that Court has jurisdiction to try the suit. 9. The second point for consideration is whether the plaintiff, in terms of the contract as per tender Exhibit 118 and the letter to the plaintiff at Exhibit 119, is entitled to claim Rs. Therefore, that Court has jurisdiction to try the suit. 9. The second point for consideration is whether the plaintiff, in terms of the contract as per tender Exhibit 118 and the letter to the plaintiff at Exhibit 119, is entitled to claim Rs. 16,926.59 p. from the defendant towards such extent of the contract as he had till and upto 30th September 1972 performed or whether by reason of any breach on his part, he is not, as contended by the defendant, entitled to claim what might otherwise have been due to him, viz., the amount of Rs. 16,926.50 p. for the period from 1st January 1972 to 30th September 1972. Who therefore committed the breach of the contract is a question which has been raised as a rival one by both the parties. 10. It is not necessary to go into the minute details of the oral evidence led by the parties. Suffice it to say that it is agreed on all hands that though the duration of the transporting contract was one year from 1st January, 1972, it came to a stop at the expiry of 30th September, 1972 and further that it came to be terminated as such, no doubt, at the instance of the plaintiff by his letter Exhibit 124 dated 30th September, 1972 and with effect from 1st October ,1972. Whether, therefore, the plaintiff was justified in terminating this contract for the reasons stated by him in the main question of fact to be resolved. 11. Term No. 19 in the tender Exhibit 118 and the equivalent of which in the letter Exhibit 119 is the term No. 21 provides that the payment of the contractor's bills in respect of the said contract shall be presented on the prescribed bill proforma on a fornightly basis and within a week after the fortnight is over, that these would have to be presented in triplicate, alongwith the relevant documents. The term further provides that the bills received in the major stores at Nasik (which means that the bills would have to be forwarded by the Dhule office of the M.S.E.B. to the major office at Nasik) within two months from the date of receipt thereof provided that there are no back references and the bills are clear. Both the parties in fact rely on this term. Both the parties in fact rely on this term. The plaintiff contending that the duty imposed on the defendant to pay up his bills within a period of two months from the receipt thereof at the office of the M.S.E.B. at Nasik had not been complied with in as much as the first set of five bills which he submitted to the M.S.E.B. on the 11th April, 1972, had not come to be paid till 30th September, 1972, putting him under extreme financial pressure and virtually disabling him from carrying on his work any further from 1st October, 1972 onwards. It was in these circumstances that he therefore wrote the letter at Exhibit 124 informing the defendant M.S.E.B. that because of non-payment of his bills, even those which had been submitted as far back as on 11th April, 1972, it became impossible for him to work further in terms of the contract; that he would not accordingly be doing any work with effect from 1st October, 1972. 12. It appears that the appellant defendant made a reply Exhibit 125 to this letter on 10th October, 1972 and assured the plaintiff that his bills were undergoing a scrutiny and he amounts due to him would be shortly paid though after making such deductions which were material and in particular pertaining to the loss of material during transport by him as also deductions on account of sundry recoveries and outstanding against him and also after making recoveries of the balance of the total amount of Rs. 4,200/- towards security deposit (the plaintiff having paid Rs. 2,101/- only towards the same till the date of the defendant's reply). Even after this, it is not in dispute that, no payment whatsoever came to be made to the plaintiffs though by the very same letter he was asked not to discontinue the contract work. The plaintiff did not work in pursuance of the contract further from 1st October, 1972 onwards at all. And equally admittedly the defendant M.S.E.B. made no payment to him until the 31st March, 1973. When towards the plaintiffs' claim of Rs. 16,926.59 p. the plaintiff offered him a cheque for Rs. 2,710.75 'in full and final settlement of his claim'. The plaintiff did not work in pursuance of the contract further from 1st October, 1972 onwards at all. And equally admittedly the defendant M.S.E.B. made no payment to him until the 31st March, 1973. When towards the plaintiffs' claim of Rs. 16,926.59 p. the plaintiff offered him a cheque for Rs. 2,710.75 'in full and final settlement of his claim'. Reverting, therefore, to the question of who committed the breach of the contract, it will be appreciated that the plaintiff is after all a transport contractor and it is an admitted position that the payment due to him under the contract was not to be postponed till the last day of the year of the contract, that payments were to be made to him under running bills to be submitted by him, though to be styled as advances. In the absence or any such advances from time to time under the running bills submitted by him, no payment whatsoever having been made, it is quite understandable that he found it difficult to adhere to the contract and to perform his part therefor till the entire duration of one year i.e. upto 31st December, 1972. 13. Term No. 21 at Exhibit 119, it will be appreciated, requires the defendant M.S.E.B. to make payments under the bills submitted by the respondent plaintiff within a period of two months from the date of receipt of such bills at the main office at Nasik through the Dhule office of the defendant. There is no dispute that this time schedule was not observed by the defendant. The explanation offered in that behalf was that the respondent plaintiff had not in the first place made a deposit of the full amount of the security deposit of Rs. 4,200/- and that he had towards the same deposited only Rs. 2,101/-. It was also communicated to the defendant that the bills submitted by him were 'under scrutiny' in as much as the defendant M.S.E.B. had realised and noted that some of the material such as iron beams numbering 52 and G.T. straps numbering 332 had come to be short delivered to the defendant M.S.E.B. The defendant had, therefore, sustained a loss and was entitled to get reimbursed in respect of the same out of the amounts payable to the respondent-plaintiff under the bills which he had till then submitted. Whether or not any such loss had been occasioned to the defendant M.S.E.B. is an independent question of fact to which I will address myself presently. But, so far as the term or condition No. 21 Exhibit 119 reads, it is also necessary to bear in mind that any omission to make payments, of the amounts due under the bills presented, could be delayed or postponed or even withheld if there were some back references required to be made to the contractor or if the bills submitted by him were not clear. Now, it will be appreciated as a matter of fact that in the evidence of the defendant's sole witness Shri Bhat there is not a syllable uttered that any of the bills submitted by the respondent plaintiff were required to be referred back to the plaintiff nor is there any evidence led to the effect that any objection was taken in respect of any of the bills submitted by the plaintiff, that the bills as were received were not clear for any reason or on any account. This was the only circumstance and the condition which was available to the defendant M.S.E.B. for withholding payments of the bills presented to it and none other. 14. However, an attempt was made to show that the delay was on account of the discovery of the fact tht out of a certain consignment of consignments brought to Dhule by the railways, the respondent plaintiff when he carried the charge of the same for transporting the same to the Central Sores at Dhule, some pieces had been lost; that, therefore, there was a short delivery of 52 iron beams and 332 G.T. straps, that there was such a short delivery is no doubt admitted even by the respondent plaintiff in the course of his cross-examination. However, it is difficult to accept that from that admission the appellant defendant can stand to gain at all. Learned Counsel Smt. Baxi pointed to the condition No. 8 in the contract at Exhibit 119. It reads as follows : "8. The delivery should be taken by the contractor from Rlys./Transport Agencies duly checked as regards Nos./Weights etc. However, it is difficult to accept that from that admission the appellant defendant can stand to gain at all. Learned Counsel Smt. Baxi pointed to the condition No. 8 in the contract at Exhibit 119. It reads as follows : "8. The delivery should be taken by the contractor from Rlys./Transport Agencies duly checked as regards Nos./Weights etc. as per R.R./L.R./Invoice and in case of visual damages/shortages the required shortage Certificate should also be obtained from the carriers, failing which the contractor will be responsible to account for all Shortages/Damages." It is, therefore, argued that the total responsibility of taking the charge of the consignment which has arrived by the railways, to verify whether or not the same was in accordance with the description of the equipment or material in the railway receipt, that it was of the same weight or quantity, that it was visually found to be without any damage, etc., was entirely of the respondent plaintiff contractor. It was plaintiff's responsibility to obtain in such eventuality, the necessary shortage certificate from the railways authorities and lastly in the case of his failure in this behalf, he would be responsible to action for all shortages and damages. 15. The argument advanced is, therefore, with reference to the submission of learned Counsel for the respondent plaintiff that the plaintiff has stated in his evidence that there was admittedly a short delivery but it was for the simple reason that the railway authorities themselves had made such a short delivery to him and not because any loss had been occasioned during the respondent plaintiff's transporting the iron beames and G.T. strapes from the railway station to the Central Stores of the defendant M.S.E.B. at Dhule. That any such loss of iron beams and G.T. strapes had occured during the transporting of the material from the railway station to the Central Stores in not the case of the appellant. Even so, what is stressed by learned Counsel Smt. Baxi is that even if the respondent plaintiff was required to accept a short delivery of the material or equipment from the railways, it was for him to prove the same. That argument is, in my opinion, quite correct, if not, unexceptionable also. However, the totality of the evidence is yet to be appreciated. That argument is, in my opinion, quite correct, if not, unexceptionable also. However, the totality of the evidence is yet to be appreciated. Plaintiff's evidence also shows that when he was in formed about the shortage in the material, he had immediately proceeded to inform the authorities of the defendant M.S.E.B. that the delivery of the material to him was itself short at the railway station and by the railway authorities. In that view, by his letter dated 17-6-72 (Exhibit 75) he requested the appellant defendant that an enquiry may please be made both from the railway authorities and also the supplier as to whether the material actually deposited he railways was as per the description, quantity and quaity given in the railway receipt. Bhat has admitted that such a letter was received. He has also proceeded further to state that in pursuance of this representation of the respondent plaintiff an enquiry was in fact made from the railway authorities and he was then proceeded to make a statement that the railway authorities had replied that there was no short delivery by them to the respondent plaintiff contractor. Now, this was a piece of documentary evidence which was not only required to be placed on record but also required to be formally proved by examination of the concerned railway official as a witness for the defendant. That has not been done and, therefore, in my opinion, the learned Judge of the Trial Court rightly concluded that any liability for short delivery of the material could not have been fastened upon the plaintiff. This was, as he observed, for the further reason that the condition No. P-17 was endorsed as not complied with, by the railway authorities when the consignment was handed over for transport to the railway. Indeed, this would be a substantial addition of a circumstance to the strength of the contention of the respondent plaintiff that at his instance as such, there was no loss of material occasioned during the transport thereof from the railway station to the Central Stores at Dhule. 16. The argument has also been that the payment of the bills presented by the respondent plaintiff was required to be postponed for the reason that he had not made the full security deposit of Rs., 4,200/- and that after the deposit of Rs. 16. The argument has also been that the payment of the bills presented by the respondent plaintiff was required to be postponed for the reason that he had not made the full security deposit of Rs., 4,200/- and that after the deposit of Rs. 2,101/- initially by him, the balance was required to be paid by and consequently recovered from him by the appellant. Now, the futility of making such an explanation is, in my opinion, quite apparent. The need to make recovery of the balance amount of the security deposit is mentioned in the letter dated 10th October, 1972. The contract had already come to be terminated by the plaintiff by his letter dated 30th September, 1972. The contract was no more kept in force may be at the instance of the plaintiff but certainly it had come to be extinguished in which even it would only be idle for the defendant M.S.E.B. to insist upon the payment of the full amount of security deposit form the respondent plaintiff. In my opinion, this could not have been so insisted upon less of course the appellant defendant wanted to treat the deposit as being in the nature of a penalty imposed upon the defendant. For imposition of any such penalty there was neither any such provision in the contractor at Exhibit 119 nor justifiability. 17. In the totality of the evidence it would, therefore, be appreciated that it was the failure on the part of the appellant defendant M.S.E.B. in not making the payment though duty bound to do so in pursuance of the terms of the contract of the respondent plaintiff upon his presentation of the bills. Even the first lot of five bills presented on 11th April, 1972 remained unattended until the plaintiff gave a notice for termination of the contract on 30th September, 1972. It is not shown to me that any correspondence was entered into with the respondent-plaintiff in regard to his bills presented on 11th April, 1972. Even the first lot of five bills presented on 11th April, 1972 remained unattended until the plaintiff gave a notice for termination of the contract on 30th September, 1972. It is not shown to me that any correspondence was entered into with the respondent-plaintiff in regard to his bills presented on 11th April, 1972. It is not shown by any evidence on record that the respondent plaintiff's attention has been brought to bear on the fact that at a particular point of time, any short delivery had occurred at his instance or in respect of any bills submitted by him, there was any ambiguity or incorrectness which had resulted in making a back reference to him or that the bills were wanting in the excepted degree of clarity. It would, therefore, be appreciated that payment of plaintiff's bills was improperly withheld. This statement has to be made with a certain degree of force for the reason that otherwise even according to the appellant defedant, the total amount of Rs. 16,926.59 p. claimed by him under the total number of 20 bills presented upto 30th September, 1972 is fully correct and has never been otherwise challenged. 18. When therefore payment was not made, the respondent plaintiff had reluctantly informed his incapacity financially to perform his part of the contract for the remaining portion of the contract. The conclusion had also to be reached as it was rightly held by the learned Judge of the trial Court, that inability to perform any part of the agreement on the part of the respondent plaintiff by reason of the sudden termination of the contract by the letter dated 30th September, 1972 (Exhibit 124), cannot come to be styled as a breach as such. The learned Judge has rightly observed that the respondent plaintiff was left with no alternative and was virtually compelled, unwillingly though, to terminate the contract which he had perhaps entered into hopefully to make a reasonable profit from it. 19. The discussion above, will take care of two of the items of Rs. 6,000/- and Rs. 400/- respectively which the appellant defendant M.S.E.B. has sought to deduct from the amount under the 20 bills viz., Rs. 16,926.59 p. There were seven other items which comprise the total deduction of Rs. 14,896.98. Before dealing with the same in detail, the items may themselves be enumerated as under :--- Rs. 6,000/- and Rs. 400/- respectively which the appellant defendant M.S.E.B. has sought to deduct from the amount under the 20 bills viz., Rs. 16,926.59 p. There were seven other items which comprise the total deduction of Rs. 14,896.98. Before dealing with the same in detail, the items may themselves be enumerated as under :--- Rs. 1,060/- Demmurage required to be paid by the defendant M.S.E.B. In April 1972. Rs. 250/- On account of overtime wages required to be paid. Rs. 575/- On account of transit tax which was imposed upon failure on the part of the M.S.E.B. to remove the goods from the municipal area within the prescribed period of 24 hours from the time of arrival within the municipal limits. Rs. 2,100/- On account of security deposit (withwhich I have already dealt with). Rs. 3,578/- On account of extra expenditure in engaging another transport operator. Rs. 330/- On account of income-tax. Rs. 100/- On account of miscellaneous expenses. In respect of none of these items there is, in the first place, any documentary evidence adduced by the defendant and this, therefore, brings me to one of the major contentions as it has been called by the learned Counsel for the appellant, namely, of the disinclination on the part of the learned Judge of the trial Court to admit a large number of documents which were presented alongwith a list as per the defendant's application at Exhibit 162 dated 27th September, 1977. The production of the douments at the stage at which they were sought to be produced has been very legally and correctly disallowed by the trial Court, by rejecting the application Exhibit 162. The argument of learned Counsel Smt. Baxi was that a serious prejudice has been caused to the defendant M.S.E.B. by rejection of this prayer for production of documents. If any such consequent has resulted, the appellant finds none else to blame than itself. The documents should have been sought to be produced on record at the stage at which the suit was on 27th September, 1977. It has to be stated here that not only the evidence of the respondent plaintiff was over on 9th September, 1977 as per his purshis Exhibit 147 but on 20th September, 1977, even the deposition of the appellant's only witness Bhat had also comet to be already recorded. It has to be stated here that not only the evidence of the respondent plaintiff was over on 9th September, 1977 as per his purshis Exhibit 147 but on 20th September, 1977, even the deposition of the appellant's only witness Bhat had also comet to be already recorded. It was because the Court's working hours were over on 20th September, 1977 that the matter was adjourned to the next date i.e. 21st September, 1977. On that date the appellant defendant passed a purshis stating that it had closed its evidence and, therefore, the matter was adjourned for arguments on 27th September, 1977. The arguments were in fact heard on 27th September, 1977 as the order passed by the learned Judge on the application Exhibit 162 indicates. It was actually at the end of the arguments that the application was made as per this Exhibit 162, for permission to produce documents on record. 20. Such production could not have been allowed having regard to the provisions of Order VIII, Rule 1 of the Civil Procedure Code in the first and secondly provision of Order XIII, Rule 1 as well as Rule 2 of the C.P.C. It is admitted by the learned Counsel for the appellant that when the written statement was filed, no list of the documents to be relied upon by the defendant whether in the defendant's possession and power or not, was annexed along with the written statement. Order VIII, Rule 1(2)(b) of the C.P.C. require that even when written statement is not presented, the defendant shall present a list of documents to be relied upon by him, to the Court at the first hearing of the suit. The list is to contain all such documents upon which he would rely irrespective of the documents, being in the possession and power of the defendant or not. Order XIII, Rule 1(4) further provides that if such a list is not annexed with the written statement or presented, the defendant could be allowed such further time for the purpose as the Court may, deem fit. It is admitted that no extension of time for presentation of documents to be relied upon was at any stage sought for by the plaintiff. It is admitted that no extension of time for presentation of documents to be relied upon was at any stage sought for by the plaintiff. This is apart from the fact that when leave is granted and time is extended for the presentation of a list and the filing of the documents sought to be relied upon by the party, that has not to done as a matter of course or a mere formality. The extension of time has to be granted upon reasons to be recorded. 21. Apart from the fact that the appellant defendant did not therefore file all those documents which it, for the first time, sought to place on record at the end of the trial and even at the conclusion of the arguments, were not mentioned as relied upon by any list which was required to be presented when the written statement was filed. If there is a failure in this behalf, then, the provisions, of Order XIIII, Rule 1 and 10 come into operation. Order XIII, Rule 1 dealing with the production, impounding and return of documents provides that the parties or their pleaders shall produce at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filled in the Court as also all documents which the Court as also all documents which the Court may have ordered to be produced. Rule 2 of the Order XIII, provides that no documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirement of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof and the Court receiving any such evidence shall record the reasons for so doing. In as much as the suit had come to the stage of decision and decision had actually not been rendered, it may be assumed that the appellant defendant did have the right to seek indulgence of the Court for production of documentary evidence which it had earlier failed to produce. However, before such permission of documentary evidence could be obtained the prime requirement was of satisfying the Court that there was good cause for non-production earlier. However, before such permission of documentary evidence could be obtained the prime requirement was of satisfying the Court that there was good cause for non-production earlier. A perusal of the application at Exhibit 162 shows that in fact there was no reason put forward as to why the documents had not been placed on record earlier. The only effort at any explanation which was made was that in as much as the defendant's witness Sri Bhat had made reference to some documents during the course of his examination-in-chief and in as much as some question had also come to be asked to the plaintiff's witness during cross-examination, the appellant was now, at that stage also, entitled to produce the documentary evidence which was an explanation as unsustainable as it would be unacceptable. It has to be presumed that all these documents were all time during the pendency of the suit and until the conclusion of the evidence and argument, in possession of the appellant defendant. Why then these had not come to be produced, if so candidly relied upon, was never explained. And, therefore, it is not open to the appellant defendant to now contend that the fact of the deductions which it was allegedly entitled to make from out of the amount due to the plaintiff, ought to be allowed to be established with reference to this documentary evidence, merely because some vague reference had come to be made thereto in the course of the appellant's own witness. 22. The deductions sought to be made may, therefore, be considered now, of course, without any assistance to the appellant defendant of the documents that were sought to be admitted upon the application at Exhibit 162. 23. The defendant contended that a sum of Rs. 1,060/- was required to be paid by the appellant defendant to the railways by way of demurrage. This was in April 1972. Now, the agreement between the parties, in regard to the payment of demurrage as settled in the contract at Exhibit 119 is with reference to term No. 9. This provides that all demurages and wharfages charges due to late action on the part of the contractor will be borne by the contractor and if paid by the Board shall be recovered from the contractor's bills. This provides that all demurages and wharfages charges due to late action on the part of the contractor will be borne by the contractor and if paid by the Board shall be recovered from the contractor's bills. The essence of the term is, therefore, that demurrage must be found to have become payable due to any late action of the part of the respondent plaintiff contractor. The learned Judge of the trial Court has, therefore, rightly observed that the defendant's case is once again totally wanting in evidence. Not a single instance was shown by evidence when any particular consignment of equipment or material had arrived at a particular point of time, that the time of arrival had come to be know to the plaintiff and that in spite of the awareness of the availability of the equipments or material for being transported to the Central Stores, he had yet failed to take action, namely, failed to transport the goods to the Central Stores. Unless the evidence on this specific point was led by the defendant, there was no gain-saying that the appellant defendant was entitled to make deduction out of the contractor's bills on account of any such demurrage that was paid. The deduction sought to be made, therefore, was rightly turned down by the lower Court. 24. Similarly, want of evidence must be noted in respect of the deduction of Rs. 250/-, which the defendant has sought to make out of the amount admittedly due and payable to the plaintiff. The overtime charges of Rs. 250/-, before this can be allowed by way of a deduction must first be proved to have been actually paid, remembering that the claim of a set off is virtually one in the nature of the cross claim and each and every allegation pertaining to such set off is required to be established as much by the preponderence of probability by the party claiming the set off the just as allegations in plaint have to be proved by the plaintiff. Apart from the fact of actual payment of such overtime wages the learned Judge has also observed that it would be necessary for the defendant to prove as to why such overtime charges were required to be paid if they were. Apart from the fact of actual payment of such overtime wages the learned Judge has also observed that it would be necessary for the defendant to prove as to why such overtime charges were required to be paid if they were. That is, something which is in the nature of remissness in the performance of the duty by the contractor as per the contractual obligations has to be established by the defendant. The facts as they have come on record reveal that the working hours at the Central Stores were from 6.30 a.m. to 2.30 p.m. The plaintiff had found it difficult to carry on his work within these as the working hours at the Central Stores. It is admitted that he had, therefore, requested the defendant that the working hours be, in order to enable him to properly complete his work, extended from 2.30 p.m. to 5 p.m. He made a request in this behalf by his letter at Exhibit 85 dated 17-4-1972. It needs to be noted that this request was addressed by him to the main office of the defendant M.S.E.B. at Bombay and the grievance in this behalf also appears to have been very promptly considered by the letter as seen from the reply Exhibit 86 dated 25th April 1972. Actually Exhibit 86 is a letter which has been addressed by the Central office of the defendant at Bombay to the defendant's Central Stores at Dhule and a copy has been sent for information both the Circle office of the defendants at Nasik as also the plaintiff himself. In that view of the advice from the superiors which must be taken to be in the nature of really a direction or order or command, the defendant was bound to extend the hours of working from 2.30 p.m. to 5.00 p.m. No evidence has been led that accordingly this advice has been acted upon or the direction complied with. In the circumstance, the inevitability of payment of overtime wages to labourers is an accepted fact, not attributable to any laches on the part of the plaintiff. Therefore, further, the learned Judge was right in rejecting the defendant's contention that this amount Rs. 250/- on account of overtime wages was liable to be appropriated by the defendant from out of the amount of the bills payable to the plaintiff. 25. Payment of Rs. Therefore, further, the learned Judge was right in rejecting the defendant's contention that this amount Rs. 250/- on account of overtime wages was liable to be appropriated by the defendant from out of the amount of the bills payable to the plaintiff. 25. Payment of Rs. 575/- by the appellant defendant to the Municipal Council of Dhule on account of the transit tax imposed upon certain goods is another item. The appellant defendant sought to deduct this amount from the plaintiff's bills and claimed justification in doing so by a vague explanation that the respondent plaintiff had failed to remove the goods which had arrived within the municipal limit within the prescribed time under the Municipal Bye Laws, to avoid the imposition of the transit tax. This has to be called a vague piece of evidence in the sense that the particulars of such occasions datewise when the goods arrived at the Dhule railway station and the fact of delay as also of the unreasonableness involved in such delay in removing the consignment from the municipal limits for being taken to the Central Stores, has to be explained by proper evidence. that was not done. Unless such circumstance are established as clearly point to any laches on the part of the respondent plaintiff, the defendant, even if it is assumed to have paid such transit tax whether in lump sum or whether on different dates in different account, cannot claim the same form the respondent plaintiff. This much only on as assumption that the transit tax was in fact paid by the defendant; it was rightly pointed out in the trial Court and it has been so pointed out at this hearing also that actually there is no proof of the fact of payment of the transit tax of any amount to the Municipal Council. 26. The next item is of Rs. 2,100/-, according to appellant defendant towards the security deposit of Rs. 4,200/-. 26. The next item is of Rs. 2,100/-, according to appellant defendant towards the security deposit of Rs. 4,200/-. This has already been dealt with earlier to hold that once it becomes an admitted fact that the contract stands terminated with effect from 1st October, 1972, the defendant would not be in a position to assert that the liability to make full the amount of security deposit still continues or that without the deposit of the full amount of security, the payment of any bills in respect of which satisfactory completion certificates have been from time to time issued, can still be withheld. 27. A sum of Rs. 3,578/- was claimed as entitled to be deducted from the plaintiff's bills because according to the defendant after the plaintiff terminated the contract with effect from 1st October, 1972, the defendant was required to engage the services of Din Mitra Malvahatuk Mazdoor Sahakari Society, a transport organisation for the remaining part of the year The defendant was, as contended, required to pay the said amount which was in excess of what would have been payable to the plaintiff. Incidentally such a contention will also clearly lead to the position that the total 20 bills presented by the plaintiff amounting to Rs. 16,926.59 p. was the correct amount of the bills and Rs. 3,578/- were claimed to have been paid to the other transport contractor over and above that amount. However, and in the first place, there is no proof of such an additional payment having been required to be and actually made by the defendant to any such transport contractor. No evidence in this behalf was led in the trial Court, The evidence in this behalf is necessarily required to be documentary. The appellant defendant's witness Bhat, stated that to his knowledge payment of Rs. 387/- only had been made to the said other transporting contractor. Even in respect of that payment there is no documentary evidence adduced nor was the said other transport contractor called to the witness box to obtain his admission of receipt of Rs. 387/-. 28. So far as the income-tax of Rs. 387/- only had been made to the said other transporting contractor. Even in respect of that payment there is no documentary evidence adduced nor was the said other transport contractor called to the witness box to obtain his admission of receipt of Rs. 387/-. 28. So far as the income-tax of Rs. 330/- said to have been paid by the defendant is concerned, there is again no evidence in that behalf and learned Counsel for the appellant fairly agrees that she would be at a loss to explain as to how, in the absence of terms and conditions in that behalf in the contract Exhibit 119, the appellant defendant could set off this amount against the plaintiff's dues. 29. Lastly, demand of Rs. 100/- has been made on account of miscellaneous expenses. These miscellaneous expenses also stands unproved. In the result, the learned Judge of the trial Court was right in holding in the first instance that without providing particulars of the claim by way of a set off, the defendant could not have succeeded in claiming that relief. Secondly, as he proceeded on an assumption that the amount of set off Rs. 14,896-98 could properly be made by way of evidence as given by Bhat then, even that oral evidence, with the availability of the documentary evidence as the primary one, could not be paid any heed to, which would be inadmissible and, therefore, the trial Court was right in rejecting the appellant defendant's claim of a set off to be made towards the amount four to be due and payable to the plaintiff. 30. One aspect of the contention raised by the appellant defendant, namely that the breach of the contract Exhibit 119 had been committed by the plaintiff will only be found to be only a generalised contention, for the following reasons. 31. The submission and arguments as advanced appear to be that the breach of the contract lay in the non-submission of the running bills by the plaintiff within time as regulated by the stipulations in the contract. The running bill were to be presented fortnightly as such and within seven days from the completion of a given fortnight work. Admittedly that does not have been adhered to by the respondent plaintiff. The running bill were to be presented fortnightly as such and within seven days from the completion of a given fortnight work. Admittedly that does not have been adhered to by the respondent plaintiff. That in itself would not further result in stamping the respondent as guilty of any breach of the contract so long as the appellant defendant does not show that the non-submission of bills by the plaintiff within the prescribed time actually affected its own receipt of the goods and dealing with them in any way. It is also note worthy that no submission of the running bills in the manner agreed is not accompanied by any penalty under the terms of the contractor. The contract does not refer to any right given to the appellant defendant either to refuse to make any payment towards any such bills outright or to make a certain percentage deduction in the amount of the respecitve bills, for non-submission of the bill within time. The non-submission of such bills or the presentation of bills in a group of five for the first time on 11th April, 1972 would not, in my opinion, constitute any breach of the contract. In as much as I have remarked on the contentions about the breach of contract as being only a generalised contention, the second aspect of the contention may now be considered. Argument has been advanced that the plaintiff's work was not satisfactory by reason of the very same set of facts, namely, non-submission of bills in time. Assuming that such a defence would be taken, it will be appreciated that under the terms of the contract Exhibit 119; the plaintiff's work as a transporting contractor was to be watched and supervised for a period of three months and a report of his working satisfactorily or otherwise was to be submitted by the Dhule Central Stores to the Circle Office at Nasik every month. It is not in dispute that in fact three such reports were made about the respondent plaintiff's work for the period from 1st January, 1972 to 31st September, 1972 and it is also an admitted position that in each of these reports the plaintiff's work had been described as being satisfactory, competent and upto the marks. It is not in dispute that in fact three such reports were made about the respondent plaintiff's work for the period from 1st January, 1972 to 31st September, 1972 and it is also an admitted position that in each of these reports the plaintiff's work had been described as being satisfactory, competent and upto the marks. This fact afords little room for the defendant for raising any plea of unsatisfactory work or the unsatisfactory manner of working amounting to any breach of the contract itself, for dis-entitling him from claiming what was due to him for the work done by him upto 30th September, 1972. It has also to be reiterated that the defendant was bound to make payment of those bills in respect of which no back reference was required to be made or which was found not to be clear. The appellant defendant has not come forward with a case that any of these 20 bills submitted by him had suffered a back reference or was not clear. In that view of the matter, conclusion was rightly reached by the learned Judge of the trial Court that the defendant had unduly and improperly withheld payment of bills due to the plaintiff transporting contactor and that it was not entitled to any set off whatsoever. The claim was, therefore, rightly decreed. The judgment and decree do not appear to deserve any interference whatsoever in my opinion. The appeal is, therefore, dismissed with costs. Appeal dismissed. -----