MAJ. R. B. YADAV v. STATE OF M. P. — 1996 DIGILAW 663 (MP)

ORDER S. K. Dubye, J. - The two revisions under Section 19 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (for short 'the Act') arise out of award dated 13th December, 1989 passed in Reference Case No. 25 of 1987 by the M.P. Arbitration Tribunal, Bhopal (for short 'the Tribunal'). 2. The petitioner-contractor has filed C.R. No. 179 of 1990 aggrieved by the award whereby out of claim of Rs. 8 lacs was awarded a total sum of Rs. 54,821.49 paise while the State has preferred C.R. No. 227 of 1990 aggrieved by the award and also aggrieved by dismissal of its counter claim for Rs. 8,34,384/-. 3. Admitted facts in the case are thus : The petitioner was awarded a works contract No. 1/84-85 dated 30th November, 1984 (Ex. P. 2) for construction of balance work of W.B.M. road (Water Binding Macadam Road) from Bhopal Dam site in RD. 19.46 Km. to 30.50 Km., pertaining to Kolar Project, Division No. 1, village Birpur, District Sehore. The total cost of work was Rs. 11,26,000/-. The work was to be completed within nine months including rainy season from the date of issue of work order, i.e., 30.11.1984 (Ex. P. 3). Thus, the stipulated date of completion was 29.8.1985. The petitioner could not complete the work within the stipulated period, the Executive Engineer recommended vide Ex. P. 37(A) extensions as requested by the petitioner upto 28.8.1986. During the currency of the works-contract the petitioner was paid Rs. 4,28,320/- from time to time. 4. The petitioner's case in brief in his petition under Section 7 of the Act is that the respondents committed various breaches of the agreement by their acts and omissions which were not mended even after repeated oral and written requests made to them from time to time which resulted in hindrance to the work and thus execution of the contract was delayed. The breaches which the respondents are said to have committed are reproduced thus : (1) All central points with respect of bench marks, reference lines and reference pillars being part of the lay out, were neither marked nor erected; (2) Lay out of entire site was not given at once and at a time. Thus, lay out for Km. 23.50 to Km. 30.50 was never given. Only at the fag end, lay out for a part of reach from Km. 19.46 to Km. Thus, lay out for Km. 23.50 to Km. 30.50 was never given. Only at the fag end, lay out for a part of reach from Km. 19.46 to Km. 23.00 could be given by the department; (3) Deforestation and removal of root stumps on road alignments were not done; (4) Suitable numbers of compaction units including road rollers were not supplied. The supplied ones, were not in working condition with breakdowns, often; (5) No outlet was provided for Nallah at RD. 23 which resulted in washing away of earth work done by the contractor; (6) The running bills were not paid regularly, each month and consequently financial difficulties compelled the contractor to raise money at exorbitant rate of interests. (7) Rs. 10,000/- was illegally and unjustifidely deducted on 27.9.1986 as hire charges, when dozer was never supplied by the department to the petitioner; (8) Road from Km. 0 to Km. 19.46 and intervening culverts therein, were not constructed. Consequently, the contractor could not use it, as an approach road for work site which became inaccessible during rains; (9) Refused to give lead and lift for metal which was stacked far away from the road site; (10) Arbitrary reduction to the tune of Rs. 1.5 lacs was made, in actual work done by the contractor by manipulating ground levels in the M.Bs.; (11) The work could not be done due to scarcity of water due to drought conditions prevailing during the material period; (12) Justified further extensions were refused and illegal termination order was not withdrawn inspite of petitioner's requests. The petitioner averred that the delay so caused in execution of the contract were due to the aforesaid lapse on the part of the respondents. Even otherwise time was not the essence of the contract and this clause of the agreement was alleged to be void due to mutual mistake in estimation of nine months period of completion as work could not be completed by other debitable agencies even after four years. Hence, termination of the contract of the petitioner on 30.10.1986 by the department was illegal which resulted in losses to the petitioner. Therefore, the petitioner claimed the amount of Rs. 8 lacs detailed as under : ---------------------------------------------------------------------------- (i) Rs. 3,20,000 Infructuous over-head expenses and loss of profits. (ii) Rs. 30,000 Idling of labour. (iii) Rs. 25,000 Excalation. (iv) Rs. 3,30,000 Final Bill. (v) Rs. Therefore, the petitioner claimed the amount of Rs. 8 lacs detailed as under : ---------------------------------------------------------------------------- (i) Rs. 3,20,000 Infructuous over-head expenses and loss of profits. (ii) Rs. 30,000 Idling of labour. (iii) Rs. 25,000 Excalation. (iv) Rs. 3,30,000 Final Bill. (v) Rs. 45,625 Refund of earnest money and security deposit. (vi) Rs. 49,375 Interest pendente lite. Total Rs. 8,00,000 ---------------------------------------------------------------------------- 5. The respondents denied the claim in toto by repudiating the alleged breaches on their part. According to the respondents, the petitioner was a novice and had no experience of works contract. He did not avail the pre-tender conference to seek clarification. The respondents contended that the petitioner had no proper planning, even after execution of the works contract construction programme was not filed. The detailed construction programme prepared by the department was not adhered to by the petitioner. The petitioner engaged merely 10 to 20 labourers in place of requisite strength of 270 labourers per day. The reference pillar was to be erected by the petitioner himself under Clause 3(i) and 3(ii) as per Ex. P. 2. Inspite of all help extended by the department, the petitioner during stipulated period could execute 15.60% work merely and upto termination of the contract the progress achieved was 39.09% barely thereby leaving 61.90% work still though the petitioner was allowed to work for 22.5 long months as against 9 months only of stipulated period. The petitioner was fully aware of the site situations well before tendering. In exercise of powers in terms of Clause 45 and 46, the contract was legally terminated and the balance work was withdrawn which has since been completed through debitable agency at an extra cost of Rs. 8,18,941/-. The respondents in their written statement originally did not claim any amount of the losses suffered. However, they made counter-claim by amending their written statement and claimed Rs. 8,18,941/-. The respondents also claimed balance of mobilisation advance for purchase of tanker-trolly amounting to Rs. 10,000/- and a sum of Rs. 5,443/- towards interest accrued till 30th April, 1988. Thus, a total counter claim was made claiming Rs. 8,34,384/-. 6. The Tribunal on appreciating the pleadings and the evidence adduced oral and documentary, recorded findings of fact on the controversy raised before the Tribunal and held that under the works contract the petitioner was to execute the balance of W.B.M. road from Bhopal to Dam site 19.46 Km. Thus, a total counter claim was made claiming Rs. 8,34,384/-. 6. The Tribunal on appreciating the pleadings and the evidence adduced oral and documentary, recorded findings of fact on the controversy raised before the Tribunal and held that under the works contract the petitioner was to execute the balance of W.B.M. road from Bhopal to Dam site 19.46 Km. to 30.50 Km. only. Because in the said reach some of the work was already done by the previous contractor and some work was also done by the department itself and the incomplete road from Bhopal to Kolar Project was continuously used since then, by not only the previous and subsequent contractors of this road along but so also contractors who were engaged in the construction of Kolar Dam itself. On account of these factual position the petitioner admittedly started the work in R.D. 23510 to 23910 without lay out. The lay out of entire length of 11.04 Km. at once and at a time was neither necessary nor practical obviously for the reason that the road under construction was under constant use because the work in Kolar Dam was also in progress. The petitioner himself started work without lay out and because of non-providing of lay out for the entire length the work of the petitioner did not suffer. However, vide construction programme Ex. D. 2 the petitioner was to engage 269 labourers daily to complete the work within the stipulated period. But the petitioner could not engage even more than 50 labourers on any single day inspite of repeated directions by the department to employ a very large number of labourers and machines till the date of termination of the contract which resulted in non-completion of the work in the reaches as shown in para-8 of the award in the table. The petitioner did not submit the running bills which were prepared by the department on the basis of the entries made of the measurements in measurement-book No. 311 itemwise and log-book of which the amount was paid to him. During cross-examination, the petitioner admitted that there was no discrepancy in the work done, measurement recorded and in the running bills prepared on the basis of the measurements. Thus, it was held that the petitioner failed to substantiate the grounds of breaches of contract (1), (2) and (10). 7. During cross-examination, the petitioner admitted that there was no discrepancy in the work done, measurement recorded and in the running bills prepared on the basis of the measurements. Thus, it was held that the petitioner failed to substantiate the grounds of breaches of contract (1), (2) and (10). 7. As regards breach (3) regarding deforestation and removal of reach stumps on road alignments, the Tribunal found that the petitioner admitted himself that there were only two trees at 20 Km. which could not have any hindrance in the work. The petitioner failed to establish that the deforestation and removal of root or stumps on the road or alignments were either the responsibility of the respondents or they were not removed or they had caused hindrance in the execution of the contract work merely due to the presence of two trees at 20 Km. because even in the clear reaches he could not complete the work. Moreover, as per Clause 4.3 read with Clause 4.5 (S.P. 3/4) of the contract document, it was the petitioner contractor who was to remove all trees, stumps bushes, roots on road alignments for which he was not entitled to any separate payment. 8. As regards breach No. (4) the Tribunal held that as per the reciprocal promise the respondents were to supply the road roller as per Item No. 5 of Schedule-G at page G.C. 41(i) of the agreement. On the evidence adduced the Tribunal recorded a Finding that out of the two road rollers one required major repairs while one was repaired within two days. The petitioner did ask for a road roller for utilizing it in consolidation work whenever there was a breakdown it was not supplied to the petitioner. However, diesel roller No. 4 remained in order and from the monthwise statement contained in Ex. D. 28-A it is apparent that the machine was in working order during the periods 12/84 to 4/85, 6/85 to 1/86 and 3/86 to 9/86 and remained under major repairs during 2/86 and at the fag end of working period of contract. Out of 2062 of working hours during the said period this machine remained under repair for 325 hours and worked for 366 3/4 hours only. From the statement Ex. Out of 2062 of working hours during the said period this machine remained under repair for 325 hours and worked for 366 3/4 hours only. From the statement Ex. D. 28 which relates to the vibratory roller No. 4 when diesel road roller No. 4 went out of order this vibratory road roller was made available for 150 hours but the petitioner could utilise it only for 11 hours. The petitioner in para 47 of his statement admitted that the road-roller worked at his site for 2212 hours though on a second thought he had resiled by adding that he does not remember this fact but the reasons were not found correct. The Tribunal recorded a finding that during the month of February 1986 that road-roller remained out of order for 21 days and in October it remained under heavy repairs when alternative arrangement was made by the department by supplying vibratory roller in its place. During said months, i.e., when the road roller remained under heavy repairs or alternative arrangement was not made, the petitioner had ample site for different activities like metal collection, excavation of earth and spreading the metal, etc. which the petitioner accepted in para 63 of his deposition. Therefore, it is clear that the work never remained stopped for want of compaction unit, i.e., road rollers. The Tribunal also recorded a finding on the basis of the statement contained in Ex. P. 28 that the road roller remained out of order only for a period of 126 days. It is the petitioner himself who could not utilise the road roller with its full capacity which remained idle with him from time to time as is revealed from recitals in Ex. P. 28-A. Though the petitioner succeeded in substantiating that the road roller was not in good condition and suffered from break-down often, but this breach was merely technical and not fundamental because the petitioner's work never came to a standstill for want of compaction unit and sooner or later road roller was repaired or at the later stage a vibratory road roller was given when it had done out of order in the month of October 1986 for major repairs therein. 9. 9. As regards-breach No. 5 relating to not provided of outlet for Nallah at R.D. 23 which resulted in washing away of earth work done by the petitioner, the Tribunal on the evidence found that the evidence of the petitioner is at variance with the pleadings inasmuch as the petitioner shifted Nallah in 22 Km. whereas in Ex. P. 11 and Ex. P. 13 the petitioner made complaint to provide pipe culverts in other reaches. There was no claim in relation to Nallah at R.D. 23 or for washing away of the work for want of any let-out. 10. As to breach No. 6 relating to delay in payment of running bills, the Tribunal held that the petitioner submitted only fourth running bill to the Engineer-in- Charge and other bills were prepared by the department itself. Under Clause 33 (G.C. 23) the primary duty of submission of monthly bills was that of the petitioner. The payments were made to the petitioner by the department of the quantum of work done by the petitioner during each month. In place of 22 running bills payment of 8 running bills was made including the first running bill which was for machinery advance. However, the petitioner failed to substantiate that due to delay in payment of the running bills he had to borrow the money or had to pay exorbitant rate of interest on such borrowing. Therefore, though the respondents failed to pay running bills regularly each month but it was a technical breach. 11. As to breach No. 7, the Tribunal allowed the claim by holding that the department illegally deducted a sum of Rs. 10,000/- as hire charges when dozer D-50 was never supplied by the department to the petitioner. 12. As to breach No. 8, relating to non-construction of road from Km. 0 to Km. 19.6 and intervening culvert therein so as to make approachable road during rains, the Tribunal found that the petitioner was well aware of the road condition before submitting the tender, prevailing working condition and accessibility of the site which started only from 19.16 Km. to 30.50 Km. The petitioner admitted in his statement that there was in existence an approach road right upto 30.50 Km. to 30.50 Km. The petitioner admitted in his statement that there was in existence an approach road right upto 30.50 Km. because the work of constructions of the dam was going on since 1980 and that by the side of the road was a pilot road and was being utilised by other contractors also besides department. The petitioner failed to establish that the respondents were bound to construct intervening culverts etc. in Km. 0 to Km. 19.46 or it could not be used as an approach road for work site or it had become inaccessible during rains. 13. As to breach No. 9 refusal to give lead and lift for metal which was stacked far away from the road site, the Tribunal held that there is no claim for lift. Under G.C. 49 Note (ii) of Annexure-F of the agreement it is clearly provided that the quantity of metal collected by the department at quarry site and along road side will be issued free of cost and it will be binding on the contractor to use this metal. Such material is called RMR. The petitioner was paid at the contractual rate of Rs. 20/- per cum, as per measurement recorded in 8th running bill which the petitioner duly accepted. The petitioner was not entitled to claim any enhanced rate of Rs. 50/- per cum, as per Ex. P. 46 dated 30-5-1986. On the other hand, in para 35 in his cross-examination, the petitioner has rendered this claim further worthless by having admitted therein that he had claimed only for lead regarding metal at quarry site, for which the petitioner was already paid. The petitioner was not entitled to claim for any lead on the metal which was transported by him on his own account and did not belong to the department. The petitioner also did not establish datewise particulars of metal quantity about the lead which were claimed from the department and which were refused by the department. Therefore, on the basis of the evidence the Tribunal held that the petitioner failed to substantiate that the respondents unjustifiedly refused to give any lead and lift for metal which was stacked far away from road site or it had in any way affected adversely the progress of the work or it amounted to a breach of the contractual term as such. 14. 14. As to breach No. 11 i.e., the work could not be done due to scarcity of water due to drought conditions prevailing during, the material period, the Tribunal on the evidence adduced by the parties, found that it was the sole responsibility of the petitioner to make arrangement of water as it was an inbuilt item of Item No. 5 of G.C. 41(1) - "Schedule of Quantities", as per agreement. The petitioner was also given T and P advance. Therefore, the Tribunal observed that in view of department's letter Ex. D. 24 dated 13-5-1985 and Ex. D. 26 dated 23-4-1986 in case of scarcity the petitioner ought to have transported water by deploying the said trolley and tanker. Besides in the light of recitals of the letter Ex. P. 9 and Ex. P. 15, the petitioner applied for extension of time for completion of the works contract on the ground that his labour had bolted away from the site due to scarcity of water on account of prevailing drought conditions. However, the stand of the petitioner was contradictory as the petitioner's work never came to stand still and some labourers remained on the work site executing the work. In paras 46 and 49 of the statement the petitioner admitted that there was no scarcity of water during 1985. The petitioner alleged the scarcity of water of the period 1986 from 1.86 to 9/86 but in that period the petitioner had done work valued about Rs. 1,52,000/- out of the total work of Rs. 4,28,328/-, as per entries from pages 10 to 16 in Measurement Book No. 305 (Art. W-1). The Tribunal further observed that even if or argument's sake it is taken for granted that there was water scarcity, it created a 'Force Majeure' as per Clause 47 (GC-34) and for this the department cannot be held responsible for delay. Even otherwise, the petitioner was allowed time to complete the work in 22.5 months in place of stipulated period of nine months. 15. Even otherwise, the petitioner was allowed time to complete the work in 22.5 months in place of stipulated period of nine months. 15. As to breach No. 12 regarding unjustified refusal to extend time and refusal to withdraw the order of illegal termination of contract, the Tribunal on the evidence adduced, relying on the decision of the Supreme Court in M/s. Hind Construction Contractors v. State of Bombay ( AIR 1979 (SC) 720 ), recorded a finding that though the time was not the essence of the contract, yet, in the circumstances, letter of rescission Ex. D. 32 dated 13-10-1986 cannot be said to be illegal as the petitioner himself did commit the breach by failing to deploy requisite numbers of labourers etc. despite repeated warning issued vide notices Ex. D. 4 to D. 16 and Ex. D. 19 and D. 20. The petitioner could execute 38% work worth Rs. 4.28 lacs merely against contract work of Rs. 11.26 lacs in the total period of more than twenty-one months as against stipulated period completion of nine months. The petitioner was allowed to work for more than eleven and half additional months after the expiry of the stipulated period in anticipation of the sanction by a formal sanction by Superintending Engineer. The Engineer-in-Chief after inspecting the site on 2.9.1986 vide Ex. D. 19, pointed out neglects/failures etc. in proceeding with the works with due diligence on the part of the petitioner. Ex. D. 19 was issued as required by clauses 45 and 46 of the contract. The Superintending Engineer also inspected the site on 1.10.1986 and found inspite of the letter Ex. D-19 there was no activity on the site and no labour was working. This fact was duly brought to the notice of the petitioner vide letter Ex. D. 21 dated 1.10.1986. Hence, the contractor having failed to have taken satisfactory corrective action within fourteen days of the earlier notice Ex. D. 19, the Engineer-in-Chief rightly terminated the contract vide Ex. D. 32 dated 13.10.1986. The Tribunal in this application found interpolation as the typed work six was scored out so as to read 12 months by writing 12. This conduct of the petitioner was also not appreciated. D. 19, the Engineer-in-Chief rightly terminated the contract vide Ex. D. 32 dated 13.10.1986. The Tribunal in this application found interpolation as the typed work six was scored out so as to read 12 months by writing 12. This conduct of the petitioner was also not appreciated. The contention of the petitioner that the contract stipulating the period of nine months envisaging working in rainy season was void under Section 36 of the Contract Act due to the impossibility of performance inasmuch that various dubitable agencies could not complete the work in couple of year later on was also not accepted in view of the specific condition in the notice of inviting tender to which the petitioner accepted and after acceptance of the tender and issue of work order the petitioner was to proceed with the work according to chalked out detailed construction programme Ex. D. 3 showing number of labourers to be engaged, different job-wise during different periods, which was neither adhered to nor petitioner prepared his programme and thereby violating fundamental condition in Clause 15 of the agreement. The work could not be completed because of the default of the petitioner in mustering men and machineries accordingly for want of proper planning and not following schedule of allotted time for want of proper planning and not following schedule of allotted time for various jobs. The performance of the contract cannot be said to be impossible when the petitioner himself vide Ex. P. 27, offered to finish the remaining work by November 1986. The delay in completion of the work by debitable agency was for various reasons, entering the fresh contract, etc. which cannot be a ground for holding that the contract was void. 16. The Tribunal having found that for the alleged breaches the respondents cannot be held responsible, discussed the claims items wise and found on the evidence adduced not sustainable, except the claim of final bill Rs. 1,731.80, for work done and not paid Rs. 8,101.85 paise; excess recovery of Dozer hire charges Rs. 14,805.84 paise earnest money in FDR Bank plus interest accrued due upto 30.11.1986 Rs. 35,000.00 and security deposits deducted out of running bills Rs. 10,625.00, total Rs. 70,264.49 paise. 17. As to counter claim of the respondents the Tribunal dealt with the same in paras 71 to 77 of the award. 8,101.85 paise; excess recovery of Dozer hire charges Rs. 14,805.84 paise earnest money in FDR Bank plus interest accrued due upto 30.11.1986 Rs. 35,000.00 and security deposits deducted out of running bills Rs. 10,625.00, total Rs. 70,264.49 paise. 17. As to counter claim of the respondents the Tribunal dealt with the same in paras 71 to 77 of the award. Counter claim was raised in the written statement filed on 25.7.1987 by an application for amendment under Order 6 Rule 17 of the Code of Civil Procedure filed on 30th April, 1988 which was allowed. The Tribunal held that the respondents did not prefer counter claim in the written statement filed at the first available opportunity. However, the petitioner denied the counter claim and submitted it as an after thought by making manipulations, fictitious billings, prolonged delay in employing various debitable agencies and on other grounds. The Tribunal on the evidence adduced observed that the respondents failed to take action in view of Clause 45 of the agreement by not obtaining the certificate of Engineer-in-charge that on completion of works by debitable agencies the expenses incurred by the respondents were in excess of the value of the work contracted. Annexure R-37, i.e., statement showing expenditure debitable to the petitioner-contractor was-signed by the Executive Engineer but he did not appear in the witness box to prove the same. On the other hand, as Assistant Engineer P. K. Roy (D.W. 2) was examined to substantiate the claim of counter claim who did not prove the documents Ex. D. 43 to Ex. D. 132 Annexed R-37 of the counter claim with corresponding corroborative entries in the relevant M.Bs. and bills and only exhibited those documents without earing to link each and every items of the statement. The Tribunal found that it was the burden of the respondents to come with a clear case of excess expenditure itemwise and to substantiate the same but the burden was not discharged by the sketchy, sweeping and vague oral evidence of Dilip Bali (D.W. 1) and P. K. Roy (D.W. 2) and then dealt with itemwise claim and observed that the claims were not substantiated by the evidence. Items in column No. 7 of Annexure R-37 looking to Annexures A(1) to (III) were not got completed by the respondents through debitable agency and the proposed recovery of quantities still to be executed on theoretical suppositions is wholly untenable. Item Nos. 8 and 9 of Annexure R-37 pertaining to (i) completion of earth work and (ii) watering of earth work of compaction detailed in Annexures VIII and IX were outside the perview of stipulated item No. 1 of GC-41 (Schedule-G). Likewise Item No. 7 of R-37 as per details given in Schedule No. III was not tenable because transportation of water for W.B.M. alone was necessary and not for earth work. Item No. 10 of R-37 was also not proved by the respondents. The Tribunal found that the respondents did not take any step to recover liquidated damages under Clause 46 of the agreement but in a misguided zeal exaggerated the counter claim on imaginary unrealistic and wholly untenable grounds. The twines of false and genuine claims of excess expenditure by debitable agencies or otherwise are so admixed by the respondents that the two cannot be separated and whole of the claim was hence disallowed. However, it was found in paras 76 and 77 that for two items of works executed partly by the petitioner of which the admitted balance of Rs. 15,443,00/- inclusive interest upto 30th April, 1988 in respect of advance given to the petitioner for purchase of tractor-trolley was found due and was allowed. Thus, giving adjustment of the amount of counter-claim of Rs. 15,443/- in the claim of the petitioner to the extent of Rs. 70,264.49, the Tribunal passed an award of Rs. 54,821.49 paise in all, payable to the petitioner with interest ante lite i.e., from 25.7.1987 onwards and pendente lite out of which the amount of the F.D.R. Rs. 35,000/- was ordered to be released forthwith in favour of the petitioner with onwards interest. 18. Shri Abhay Sapre, learned counsel for the petitioner contended that when the Tribunal recorded a finding that providing of lay out for the entire length, road roller and payment of each month running bill regularly was the responsibility of the department, committed an error in holding that providing of lay out for the entire length was neither necessary nor practical. Shri Abhay Sapre, learned counsel for the petitioner contended that when the Tribunal recorded a finding that providing of lay out for the entire length, road roller and payment of each month running bill regularly was the responsibility of the department, committed an error in holding that providing of lay out for the entire length was neither necessary nor practical. Similarly, the Tribunal committed an error in holding that non-providing of road roller was merely a technical breach and so also the payment of monthly running bills. Having found that breaches committed on part of the respondents, the Tribunal ought to have decreed the claim as the breaches so found proved cannot be said to be the technical breaches which is the own creation of the Tribunal. Providing of a road roller was an integral part of the contract and was an important factor in completion of the work, therefore, it was a fundamental breach which was adversely affected the works contract. Without the payment of running bills the petitioner could not have worked. The petitioner's work was delayed. Finding recorded in respect of deforestation is also illegal as in view of Clause 8.3 read with Ex. P. 37-A, letter of the respondents dated 1.2.1986, it was the responsibility of the respondents. Lastly, it was submitted that the respondents illegally terminated the contract and did not accede to the prayer for extension of time even on the availability of sufficient grounds. In any case, as the unfinished work was completed after a long period, therefore, it is evident that the time was not the essence of the contract and that the contract in such circumstances was void in view of Section 36 of the Contract Act. 19. Shri A. K. Khaskalam, Deputy Advocate General submitted that the findings recorded by the Tribunal in respect of the so called breaches as alleged by the petitioner disallowing the claim are findings of facts which cannot be interfered in revisional jurisdiction under Section 19 of the Act. The work of the petitioner never came to stand still either for not providing lay out which was not necessary or for not providing road roller which was repaired and at the later stage a vibratory road roller was provided. The petitioner, as found by the Tribunal, could have worked even in the absence of road roller and could have employed his labourers. The petitioner, as found by the Tribunal, could have worked even in the absence of road roller and could have employed his labourers. The delay in payment of running bills was on account of the petitioner only, however, to extend the help the department prepared the bills and made the payments. As regards the counter-claim, it was submitted that the Tribunal illegally on surmises rejected the claim. Admittedly, the work was completed through debitable agencies and to prove that respondents filed all the documents, measurement books, level books and other documents, which were duly proved by D.W. 2 P. K. Roy, who was not cross-examined in respect of the details of the work done by the debitable agencies and expenditure incurred by the respondents. Therefore, the Tribunal ought to have allowed the counter claims. 20. After hearing the counsel and no re-appraisal of record, we are of the opinion that the two revisions have not merit. It is well settled that for interference in revisional jurisdiction by this court the revisionist has to make out any of grounds enumerated in Clauses (a) to (c) of sub-section (1) of Section 19 of the Act. The contentions are based on appreciation of evidence. Unless it is pointed out that the findings of facts recorded are perverse or manifestly illegal no interference in revisional jurisdiction can be made even if on re-appraisal of evidence a different conclusion can be arrived at. See the decision of this court in State on M.P. and others v. Vidyaram Rajani ((1995) ATLR 226). True the Tribunal has recorded a finding that it was the responsibility of the respondents to provide lay out, road roller and to make payment of the monthly running bills. However, on facts, the Tribunal observed that the breaches were not so, so as to be characterised as to fundamental nature which obstructed in execution of the works contract. The petitioner was to execute the balance work of W.B.M. road of which some work was already done by the previous contractor and some work was done by the department itself and incomplete road was continuously in use since then. On account of this factual position the petitioner admittedly started the work in R.D. 23180 to 23810 without lay out and without insisting for that as he was in know of the work which was to be executed by him. On account of this factual position the petitioner admittedly started the work in R.D. 23180 to 23810 without lay out and without insisting for that as he was in know of the work which was to be executed by him. The petitioner did not make any complaint that without lay out he cannot commence the work. On the other hand, he deployed a small number of 50 labourers to start the work. The petitioner did not deploy required number of labourers nor worked according to the scheduled programme. The work proceeded unsatisfactorily for months together. The Tribunal discussed this breach details in para 6 to 20, and in our opinion, the findings recorded that the petitioner could not substantiate breach Nos. 1, 2 and 10 do not call for interference. 21. Thus, non-payment of running bills in time can give a cause to stop the work and to take action in accordance with the terms of the contract and law if for that there is unreasonable delay without any unjustifiable cause. Clause 33 in respect of the monthly running bills provides that the payments will be made to the contractor at monthly intervals. The contractor shall submit his bills for the work done to the Engineer-in-Charge. The Engineer-in-Charge shall thereafter verify the claims in the bill, and arrange for admissible payments as far as possible within ten days of the presentation of the bill, after deducting therefrom all the amounts as per terms of the contract. Delayed and untimely payment of the running bills if they are in breach of Clause 33, would no doubt amount to breach of contract on the part of the respondents. The object of payment of running account bill which is not the final payment of bill but, in a way of advance payment so that the contractor may keep his contractual activities alive. Therefore, the non-payment of monthly running bills to a contractor for a long time without any unreasonable and unjustifiable cause would certainly give rise to temporary stoppage of work by the contractor and to take action in accordance with the terms of the agreement, and so proceed in accordance with law even to claim damages. But, that will depend on the circumstances of each case. But, that will depend on the circumstances of each case. However, in the present case, the evidence is that there was no abnormal delay on the part of the respondents in making the payment of running but on occasions it was the petitioner himself who was responsible for not submitting the bills in time and some times the bills were prepared by the department on the basis of measurement shown in the measurement book and the amount was paid so as to extend the help to the petitioner. Therefore, if there was some delay in payment of bills that cannot be said to be a fundamental breach in the circumstances of the case. Therefore, in our opinion, the Tribunal was right in holding that it was a technical breach which has not affected in any manner the execution of the contract by the petitioner. 22. Coming to the breach of not providing road roller the finding of the Tribunal is that though it was the responsibility of the respondents to provide road roller which was supplied to the petitioner which suffered break down but, in the fact, it was a technical breach and not fundamental as the petitioner's work never came to stand still and/or at a later stage vibratory road roller was given when it had gone out of order in October, 1986. 23. Coming to the last contention that the condition of stipulated period of nine months was void in view of Section 36 of the Contract Act as even for period of a couple of years the balance work could not be completed by debitable agency, therefore, the rescission of the contract by the respondents was illegal. The contention has no merit. Before submitting his tender the petitioner did not take part in pre-tender conference but with open mind submitted his tender and accepted to complete the work within the stipulated period of contract but could not complete the work and applied for extension and was allowed to complete the work during the currency of the contract, i.e., upto 13-10-1986. The Engineer-in-Chief and the Superintending Engineer warned the petitioner time and again to complete the work but he could not continue the work according to chalked out programme Ex. D. 3 showing a number of labourers to be engaged, different job wise during different periods. The Engineer-in-Chief and the Superintending Engineer warned the petitioner time and again to complete the work but he could not continue the work according to chalked out programme Ex. D. 3 showing a number of labourers to be engaged, different job wise during different periods. The petitioner was served with the notice and ultimately the contract was rightly terminated in terms of Clause 45 of the agreement after giving a reasonable time to the petitioner to complete the work, but the petitioner failed to complete the work even in 21.5 months . Therefore, the contention that Section 36 of the Contract Act would come into play is, in our opinion, of no substance as it was not a contingent agreement to do or not to do anything on happening of any impossible events which may be said to be void. 24. As to counter-claim, after notice of petition of reference the respondents filed their reply to the petition on 25.7.1987. In that the respondents did not raise counter claim. By an application (IA-7) under Order 6 Rule 17 of the Code of Civil Procedure moved on 13-9-1988 by proposed amendment in the reply the respondents raised their counter claim was opposed but allowed by the Tribunal by applying the provisions of Order 8 Rules 6-A to 6-G though the provisions of Order 8 Rules 6-A to 6-G have not been made specifically applicable to the proceedings before the Tribunal. It is not necessary for us to express any opinion about the entertainability of the counter claim in a reference petition filed before the Tribunal as the petitioner has not challenged the same. A counter claim so raised was in the nature of dispute which was entertained in the dispute so filed by a reference petition under Section 7 of the Act. The Tribunal dealt with the counter claim on merits. The Tribunal observed that the respondents did not take any action to recover liquidated damages under Clause 46 of the agreement for the reason best known to them. The respondents in terms of Clause 45 also did not obtain a certification of Engineer-in-charge showing a difference which was payable to the contractor by the Government. On the evidence adduced and scrutiny of Annexure R-37 item wise expenditure shown was not proved by legal evidence. The respondents in terms of Clause 45 also did not obtain a certification of Engineer-in-charge showing a difference which was payable to the contractor by the Government. On the evidence adduced and scrutiny of Annexure R-37 item wise expenditure shown was not proved by legal evidence. True, when the work was got completed through debitable agency the respondents must have incurred expenditure but that was not proved by legal evidence. Merely filing documents and statements contained in Annexure R-37 cannot be considered as evidence without their proof. Learned counsel for the respondents could also not point out from the evidence that items of expenditure contained in Annexure R-37 were proved by legal evidence. The findings disallowing the counter claim are findings of fact hence cannot be interfered in revision. 25. In the result, the two revisions have no merit and are dismissed with no order as to costs. Record of the Tribunal be sent back with the copy of this order.