Judgment - This appeal, preferred under Section 96 of Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 20-08-1982, passed by District Judge, Tehri Garhwal, in original suit No.8 of 1982, whereby plaintiff's suit was decreed for recovery of Rs. 54,243.24 with the proportional costs and 6% interest per annum thereon. 2. Heard. 3. Brief facts of the case are that plaintiff- Chattar Singh Negi, a contractor in the District of Tehri Garhwal, filed a suit for recovery of Rs. 73,574.38 against the defendant. It is pleaded in the plaint that the plaintiff obtained a contract from the defendant for construction of approach road to 220 K.W. sub station at Chamba on 02-06-1978. The contract was in two parts. In the first part, the road was to be constructed from chainage No. 0/8 to 0/29 and the tender money was Rs. 42,456.38. The second part was construction of road from chainage No. 0/29 to 1/20, for which tender money was Rs, 25,418/-. The work was to start on 05-06-1978. However, the agreement could be signed only on 08-08-1978, as such, the period for completion of the work i.e. 2},; months was to expire on 23-10-1978. Plaintiffs case is that when he started construction of the road, he faced the difficulties due to inaction on the part of the defendant (appellant), as he did not get clearance of construction of road from the Forest Department, over the land, which fell within the jurisdiction of the Forest Department. The plaintiff could complete the work where ever there was no obstruction in the construction work. It is pleaded by the plaintiff that several times he reminded and requested defendant to get clearance from the Forest Department so that he could complete the work. However, the defendant did not pay any heed to it. According to the plaintiff, for no fault on the part of the plaintiff he was not allowed to complete the work. And even then he could complete major portion of the work. His contract was rescinded by the defendant and he suffered loss due to the defendant's failure to perform their part of contract, hence the suit was filed for recovery of Rs. 73,574.38. 4. The defendant (appellant) contested the suit and filed its written statement before the trial court. And even then he could complete major portion of the work. His contract was rescinded by the defendant and he suffered loss due to the defendant's failure to perform their part of contract, hence the suit was filed for recovery of Rs. 73,574.38. 4. The defendant (appellant) contested the suit and filed its written statement before the trial court. In the written statement, it is admitted that the contract was given to the plaintiff for construction of the road in question. However, it is alleged in the written statement that plaintiff did not complete the work in terms of the agreement executed with the defendant and the contract was rescinded on 30-11-1978, According to the, defendant, only Rs. 2,277.57, was to be paid to the plaintiff apart from the two running bills already paid to him and the same was deposited in the trial court. 5. On the basis of the pleadings, the trial court framed following issues in the suit : 1. Whether the plaintiff was prevented from constructing certain portions of the road due to the default and negligence on the part of the defendant ? If so, is the plaintiff entitled to treat whole of the contract as fulfilled, as alleged in para-20 of the plaint? 2. Whether the plaintiff had to pay Rs. 17,000/- to his idle labour due 'to the fault of the defendant? If so, is he entitled to claim this amount? 3. Whether the plaintiff had done actual work worth Rs. 60,000/-, as alleged in para-19 of the plaint? 4. Whether the plaintiff is entitled to refund of security amounting to Rs: 5,968/- ? 5. Whether the defendant is entitled to impose a penalty of 10% on the plaintiff as alleged by the defendant? 6. To what relief, if any, is the plaintiff entitled? 6. After recording the evidence and hearing the parties, the trial court found that the defendant could not provide undisputed site to the plaintiff to complete the construction of the road, as such, in view of provision of Section 53 of Indian Contract Act, 1872, the plaintiff is entitled to compensation for the loss suffered by him. Aggrieved by said judgment and decree dated 20-08-1982, passed by District Judge, Tehri Garhwal, in original suit No. 08 of 1982, this appeal was preferred by the defendant before Allahabad High Court on 29-11-1982. Aggrieved by said judgment and decree dated 20-08-1982, passed by District Judge, Tehri Garhwal, in original suit No. 08 of 1982, this appeal was preferred by the defendant before Allahabad High Court on 29-11-1982. The appeal is received by transfer to this Court under Section 35 of Re-organisation Act, 2000. 7. The points of determination pressed and argued before this Court (Reference Order 41 Rule 31 C.P.C.) are as under :- 1. Whether the plaintiff could not complete the construction of the road due to the fault on the part of the defendant and is provision of Section 53 of Indian Contract Act, 1872, attracted? 2. What is the amount to which the plaintiff is entitled ? 8. Answer to points of determination Nos. 1 and 2 :-Admittedly, plaintiff submitted his tender on invitation from the defendant for construction of approach road for it (defendant) to 220 KW sub station at Chamba. It is also admitted that the tender of the plaintiff was accepted on 02-06-1978. It is also not disputed that actual agreement between the parties was entered into on 08-08-1978. It is also not disputed that plaintiff did start work but could not complete the same. The question now before this Court is whether the plaintiff failed to discharge his duty under the agreement or was he prevented due to inaction on the part of the defendant in completing the work. From the oral and documentary evidence on record, it is clear that the approach road, which was to be constructed by the plaintiff, had to go through the land belonging to Forest Department. It is also admitted by the defendant's witnesses before the trial court that the plaintiff did write letters to them to remove the difficulties in construction of the work, as the Forest officials are not permitting him to complete the construction of road. I agree with the trial court that the plaintiff could have been able to complete the work only when he is provided undisputed site the same. It is legally wrong on the part of the defendant to rescind the contract on the ground that the plaintiff has failed to complete the work, or to hold him responsible for the same. I agree with the trial court that the plaintiff could have been able to complete the work only when he is provided undisputed site the same. It is legally wrong on the part of the defendant to rescind the contract on the ground that the plaintiff has failed to complete the work, or to hold him responsible for the same. There is no evidence adduced from the side of the defendant that what did they do in providing undisputed site, particularly in respect of the land, which fell within the jurisdiction of the Forest Department. In the circumstances, I concur with the view taken by the trial court that provision of Section 53 of Indian Contract Act, 1872, is attracted in the present case, as there was implied promise on the part of the defendant to provide the land for construction of the road. Section 53 of said Act, provides that when a contract contains reciprocal promise, and one party to the contract prevents the other from performing his promise, the party to prevented is entitled to compensation from the other party. It is proved by the oral evidence adduced on behalf of the plaintiff before the trial court that he incurred expenditure of Rs. 50,000/- in constructing the road. He could not complete the construction of road, as the remaining part was Forest land and there was no clearance obtained from said Department by the defendant. The oral testimony of the plaintiff was corroborated from the document Ext. 32, which is copy of letter dated 25-10-1972, which shows that the plaintiff has done work amounting Rs. 50,000/-. 9. However, this Court does not find any sufficient reason to decree the suit for the whole of amount of contract money; as the work admittedly could not be completed by the plaintiff. The trial court to that extent, has committed error of law in decreeing the suit in toto for whole of amount of Rs. 67,874.38. The plaintiff is entitled only to payment of work, which he could complete. That being so, after deducting Rs. 17,321.57, which the defendant had paid towards running bills during the progress of work to the plaintiff out of Rs. 50,000/- the plaintiff was entitled only to Rs. 32,678.43. Apart from this, the plaintiff was entitled to get back the security of Rs. 5,968/- and the amount of Rs. That being so, after deducting Rs. 17,321.57, which the defendant had paid towards running bills during the progress of work to the plaintiff out of Rs. 50,000/- the plaintiff was entitled only to Rs. 32,678.43. Apart from this, the plaintiff was entitled to get back the security of Rs. 5,968/- and the amount of Rs. 2,277.57, deposited by defendant with the trial court, as admitted liability. Accordingly, the points of determinations No.1 and 2, stand answered. 10. For the reasons, as discussed above, the appeal is partly allowed. Judgment and decree, passed by the trial court is modified to the extent that the suit filed by the plaintiff shall stand to have been decreed for Rs. 32,678.43 instead of Rs. 54,243.24, with proportional costs and 6% interest per annum against the defendant. Apart from the aforesaid amount of Rs. 32,687.43, proportionate costs and 6% interest thereon, the plaintiff shall be entitled to get back security of Rs. 5,968, deposited by him with the defendant and also entitled to withdraw Rs. 2,277.57, deposited by the defendant with the trial court. No order as to costs of the appeal.