Judgment :- R.V. More, J. 1. The appellant (Original Defendants) takes exception to the judgment and decree dated 7th March, 1998 passed by the Civil Judge, Senior Division, Panvel, at Panvel in Special Civil Suit No.91 of 1992 wherein the appellants were directed to pay Rs.53,32,411/- to the respondents by way of damages with simple interest at 18 % p.a. From the date of the suit. The facts leading to the filing of the appeal are as follows: 2. One Ram Sable, predecessor-title of the respondents filed a suit against the appellants for a perpetual injunction and directing them to obey the agreements and resolutions passed from time to time for the construction of a hospital building. In the alternative, a claim was also made for recovery of an amount of Rs.35,65,411/- towards damages. (hereinafter for the sake of convenience Appellants and Respondents are referred to as defendants and plaintiff respectively.) The case of the plaintiff was that the defendants had called for tender for construction of a hospital building. The plaintiff filled in the tender and his tender being the lowest, the work of construction of hospital by a written agreement dated 19th August, 1980 was alloted to him. The period of completion of the construction of the said hospital was 18 months from the date of agreement. The defendants agreed to supply the required quantity of cement bags for the construction of hospital building. The work order in pursuance of agreement was issued on 21st August, 1980. The line out one was given on 12th September, 1980 and actual work of construction started on 15th September, 1980. The plaintiff thereafter, collected the required material for the construction of the building and also obtained loan from the Bank of Maharashtra to the extent of Rs.3,50,000/-. It is the specific case of the plaintiff that the defendants stopped supply of cement and therefore, the work was stopped. The rates of building material was in the meantime enormously increased. The plaintiff did not seek any escalation in the rate of construction for a period of 18 months. However, thereafter demanded higher rate for the construction in view of the escalation of the price of the building material and the defendants in pursuant to the demand of plaintiff passed a resolution bearing No.64 on 22nd July, 1983 and agreed to the escalation in price. However, thereafter demanded higher rate for the construction in view of the escalation of the price of the building material and the defendants in pursuant to the demand of plaintiff passed a resolution bearing No.64 on 22nd July, 1983 and agreed to the escalation in price. The plaintiff continued the construction work from August, 1983 but, on 31st March 1984 the Collector, Raigad stopped the construction work of the building on the basis of a complaint by one of the Councillors of the defendants. The plaintiff again sought for increase in the rate since the building material had become very costly during that period. The defendants passed a resolution bearing No.58 on 25th July 1986 and agreed to increase 25 % above the DSR of 1986. This resolution was again stayed by the Collector of Raigad and the plaintiff was compelled to suspend the construction activities. An appeal was filed against the order of the Collector to the Director of Municipal Administration. However, the same was dismissed and thereafter Revision application was filed before the State of Maharashtra. The State of Maharashtra allowed the appeal of the plaintiff and a direction was given that the plaintiff should complete the construction work as per the rates given in the resolution No.58 dated 25th July, 1986. 3. The plaintiff thereafter in pursuance of the order of the government executed a fresh agreement on 16th May 1988. This agreement was subsequently confirmed by defendants by passing Resolution No.51 dated 9th June, 1988. The plaintiff contended that they are ready and willing to complete the construction work as per the agreement dated 16th May 1988. However, officers of the defendants did not allow the plaintiff to commence the work and they worked against their interest. The defendants did not pay the plaintiff adequate money, did not supply cement and did not record the measurement in the measurement book. The plaintiff also averred that had the defendants co-operated, he would have constructed the hospital building in time and would have earned goodwill. However, for the adamant attitude of the officers of the defendants the work could not be completed for a period of 9 years. It was also contended that exorbitant interest was required to be paid for the loan obtained by the plaintiff from the Bank of Maharashtra. An amount of Rs.10,10,000/- was also claimed from the defendants towards running bills. However, for the adamant attitude of the officers of the defendants the work could not be completed for a period of 9 years. It was also contended that exorbitant interest was required to be paid for the loan obtained by the plaintiff from the Bank of Maharashtra. An amount of Rs.10,10,000/- was also claimed from the defendants towards running bills. This payment was also delayed by the defendants. The plaintiff ultimately served a notice on 21st August, 1989 and thereafter filed a suit requiring the defendants to obey the agreements and resolutions passed by them from time to time and an injunction restraining their officers, servants and agents from causing obstruction in the construction work. An amount of Rs.10,10,000/- was claimed towards outstanding bills as on 30th September, 1988. By way of damages, the plaintiff claimed an amount of Rs.6,60,000/- for the rent he had to pay for centering and machinery for a period of 11 months at Rs.60,000/- per month, Rs.15,76,818/- towards interest amount which the plaintiff was required to pay to the bank, an amount of Rs.3,13,700/- towards payment of salary to gateman and watchman and Rs.5,000/- for notice charges. 4. The plaintiff amended the plaint in pursuance of an order on Exhibit 32 and added para No. 39. By this amendment, he prayed for obedience of Resolution no.43 dated 9th May 1991. In pursuance of an order below Exhibit 75, the plaint was again amended so as to enhance the original claim of Rs.35,65,411/- to Rs.60,82,418/-. The plaintiff revised the claim for damages under the caption “interest” from Rs.15,76,811/- to Rs.17,18,811/-. The plaintiff further claimed centering material bills at Rs.60,000/- per month from the date of notice till the institution of suit totalling Rs.3,60,000/-. Thus, the claim for rent for centering and machinery and other material is calculated at Rs.10,20,000/- as on the date of suit. The plaintiff also added new claim of Rs. 19,50,000/-. This claim was made on the basis of resolution No.43 dated 9th May 1991. It is contended by the plaintiff that the defendants agreed to give construction rate as per DSR for 1991-92. Balance work of the hospital building was estimated at Rs.78,00,000/- and had the work was completed, he would have earned 25 % profit that is how claim of Rs.19,50,000/- was made. The plaintiff also claimed 24 % interest on the decreetal amount. 5. Balance work of the hospital building was estimated at Rs.78,00,000/- and had the work was completed, he would have earned 25 % profit that is how claim of Rs.19,50,000/- was made. The plaintiff also claimed 24 % interest on the decreetal amount. 5. The defendants by filing the written statement resisted the claim of the plaintiff. The facts in respect of calling for tender, contract with the plaintiff and issuance of the work order are not disputed by the defendants. It was contended by the defendants that they have supplied 3355 cement bags to the plaintiff during the period from 14th November, 1980 to 3rd December, 1981. It was contended that considering the total supply of cement bags to the plaintiff and the total work done by the plaintiffs at site, it cannot be said that the construction work was suspended due to non supply of cement. The defendants denied that they have committed any breach of the agreement for the supply of cement. It was the case of the defendants that payment of advance towards material, running account bills etc have been paid to the plaintiff and inspite of this he did not complete the construction of hospital within the agreed period and completely stopped the construction since November, 1981. The plaintiff was informed from time to time by letters dated 15th June 1986, 19th February 1982, 31st February 1982 and 12th July, 1982 for the lapses committed on his part. Notice dated 16th September 1982 was also issued to him. In the said notice, it was contended that the defendants complied with its obligation under the agreement and inspite of this, the plaintiff failed to complete the work within the prescribed period. It was specific case of the defendants that plaintiff raised false contentions of price escalation of building material and suspended the work. It also contended that brother of the plaintiff, Laxman Sable being a Municipal Councillor used his position to gain undue advantage and attempted to seek escallation in the amount of construction of the hospital building. It was contended that the plaintiff did not make sincere efforts for completion of the construction work within a period of 18 months. Inspite of resolution no.64 dated 22nd July 1983 granting him increased rates, the plaintiff started construction at a very slowly speed just to give a feeling that work was started. It was contended that the plaintiff did not make sincere efforts for completion of the construction work within a period of 18 months. Inspite of resolution no.64 dated 22nd July 1983 granting him increased rates, the plaintiff started construction at a very slowly speed just to give a feeling that work was started. The defendants supplied 1700 bags of cement during the period from 10th March 1983 to 8th October, 1984. An amount of Rs.2,00,000/- and Rs.1,00,000/- was paid on 30th December 1983 and 14th February 1983 respectively. Subsequently, resolution no. 58 dated 25th July, 1986 was passed under which the plaintiff was to be paid 25 % above DSR of 1986 and an amount of Rs. 2,00,000/- was to be given by way of advance. However, both the resolutions were quashed and set aside by the Collector and the respondents were directed to complete the work as per the original tender rates. It was contended that the government allowed the appeal of the plaintiff whereunder directions were given to complete the construction of hospital building as per resolution no. 58 dated 25th July, 1986. However, payment of Rs. 2,00,000/- was turned down which was agreed to be given as advance to the plaintiffs. In pursuance of this decision, the defendants supplied 1000 bags of cement between he period from 20th March 1988 to 29th April 1988. However, the plaintiff started demanding payment of all the work completed by them as per new rates which was contrary to the government order itself. The defendants paid to the plaintiffs 4th running bill of Rs. 6,09,600/-. It is specific case of the defendants that after receipt of this bill, the plaintiff again stopped construction work and did not obey the terms and conditions incorporated in the agreement dated 16th May 1988 executed in pursuance of government order. In such a situation, the defendants passed a resolution dated 23rd December, 1988 and thereafter the plaintiff was served with communication that he should start work within 15 days otherwise the work will stand withdrawn. Inspite of this notice, the plaintiff did not re-start the work. In the meantime, all the files were requisitioned by the Collector of Raigad. The defendants were ordered not to make payment to the plaintiff. Inspite of this notice, the plaintiff did not re-start the work. In the meantime, all the files were requisitioned by the Collector of Raigad. The defendants were ordered not to make payment to the plaintiff. In the above view of the facts, it was contended that the plaintiff was never interested in starting the work as per the latter agreement and filed a false suit. It is the specific contention of the defendants that they had recorded measurement of construction done by plaintiffs in their measurement book. No further work was done by the plaintiff beyond the work recorded in the measurement book. The running bills have been paid for the measurement that were recorded. The claim along with the amended claim have been specifically denied by the defendants. On the contrary, the defendants contended that they have made extra payment of Rs.4,55,000/- to the plaintiff. They also contended that they supplied in total 6055 cement bags to the plaintiff. However, plaintiff used 4020 cement bags and 2035 bags of cement were received by the plaintiffs in excess. The price of the same is at Rs.63,737/-. Thus, the defendants claimed an amount of Rs.5,18,937/- from the plaintiffs for which counter claim was made. 6. The plaintiff by filing written statement denied the counter claim of the defendants. At the stage of evidence, the plaintiff has restricted his claim to an alternate prayer for damages. 7. The learned trial Judge in view of the above pleadings framed as many as 13 issues. The plaintiff examined his brother who is the power of attorney holder as PW No.1. The plaintiff also examined one Jamalbhai Sisotia as PW2. On behalf of the defendants one Sunil Gawde, Civil Engineer was examined as DW 1. Both the plaintiff and the defendants relied upon number of documents to which reference will be made at an appropriate place. The learned trial Judge on the basis of the pleadings, documentary and oral evidence came to the conclusion that the defendants have committed breach of contract by stopping supply of cement by not making payment in time and by not giving cooperation to the plaintiff. The trial Court also held that the resolution no. 43 dated 9th May 1991 is legal and valid. The trial court also held that the defendants has not paid outstanding bill amount of Rs.10,10,000/- to the plaintiff. The trial Court also held that the resolution no. 43 dated 9th May 1991 is legal and valid. The trial court also held that the defendants has not paid outstanding bill amount of Rs.10,10,000/- to the plaintiff. The trial court granted damages including the above amount of Rs.10,10,000/- at Rs.53,37,411/- with 18 % interest p.a. from the date of the suit till realization of the decreetal amount. 8. Mr.Gautam Patel, learned counsel for the defendants took us through the oral evidence of the plaintiffs and the defendants. He also invited our attention to various correspondence and notices exchanged between the parties. He submitted that the defendants have not committed any breach in supply of cement bags to the plaintiff. The measurement of the work done by the plaintiff was forthwith taken into the measurement book. The plaintiffs was given from time to time amounts towards advances and running bills. The plaintiff has alleged breach in respect of the first agreement dated 28th August, 1980. However, that agreement was not produced on record. Earlier agreement dated 19th August, 1980 is superseded by latter agreement dated 16th May 1988. He submitted that if allegations of the plaintiff is about breach of the first agreement, then the said agreement ought to have been produced on record. However, the plaintiff has not done so. He also submitted that if the suit is on the basis of latter agreement dated 16th May 1988 then a grievance cannot be made about breach of the terms and conditions of the first agreement. He submitted that finding of the trial court cannot be sustained if the evidence on record is appreciated in its proper perspective. He submitted that the plaintiff’s brother Laxman Sable is an influential person being a Councillor of the defendants-council since 1975. The suit was filed by the said Laxman Sable as a power of attorney holder of the plaintiff. The said Laxman Sable had taken undue advantage of his position and got passed various resolutions from time to time. He also submitted that the plaintiff could not prove that the defendants had committed breach of the terms and conditions of agreement. On the contrary it was the plaintiff who was not interested in completion of the construction of the hospital work and only interested in getting increased rate in construction amount. He also submitted that the plaintiff could not prove that the defendants had committed breach of the terms and conditions of agreement. On the contrary it was the plaintiff who was not interested in completion of the construction of the hospital work and only interested in getting increased rate in construction amount. Mr.Patel also submitted that the plaintiff failed to prove that Rs.10,10,000/- is due and recoverable from the defendant-council. He submitted that the plaintiff also failed to prove damages under the head of ‘loss of profit’, salary of staff, rent of centering and machinery and interest on loan. He lastly submitted that the plaintiff’s suit is liable to be dismissed. 9. Mr.Aney, learned senior counsel appearing for the plaintiff invited our attention towards the prayers made in the suit and submitted that the suit was filed for enforcement of the various resolutions passed by defendants from time to time. He invited our attention to the text of the resolutions of the defendants passed in the years 1980, 1983, 1986, 1988 and 1991. He submitted that there is enough evidence on record to show that the defendants itself committed breach of the terms of contract and terminated the contract. Mr.Aney took us through the impugned judgment and submitted that the learned trial Judge has given cogent reasons in arriving at a conclusion that an amount of Rs.10,10,000/- is due and recoverable from the defendants to the plaintiff. He also submitted that their grant of damages under other heads are allowed on the basis of evidence on record and the same cannot be faulted with in any way. Mr.Aney lastly submitted that the appeal filed is devoid of substance and the same deserves to be dismissed. 10. While considering the rival contentions, it is necessary to be seen as to who has committed breach of contract. In this regard, voluminous evidence produced by the parties is required to be considered along with the oral evidence adduced by the parties and only thereafter liability of either parties will have to be fixed. There is no dispute that the plaintiff’s tender was accepted and work of construction of hospital building was allotted to him. Accordingly, agreement was executed on 19th August, 1980. Under this agreement, the defendants undertook to supply cement bags to the plaintiff. There is no dispute that the plaintiff’s tender was accepted and work of construction of hospital building was allotted to him. Accordingly, agreement was executed on 19th August, 1980. Under this agreement, the defendants undertook to supply cement bags to the plaintiff. The construction was to be completed within a period of 18 months from the date of execution of the agreement. 11. At this stage, the evidence of the parties is required to be appreciated. Laxman Sable was examined as PW 1 who is brother and power of attorney holder of the plaintiff. He deposed in his deposition that from 1978 to 1984 he was the Municipal Councillor of the defendant council. Thereafter, he deposed about the tender and agreement executed between the defendants and the plaintiff for construction of the hospital. He further deposed that cement bags were to be supplied by the defendants in accordance with the progress of construction and it was decided that construction material was to be procured by the plaintiff against which the defendants were to pay advances and these advances were to be adjusted in their running bills. He also deposed that a loan of Rs.3,50,000/- was obtained by plaintiff from the Bank of Maharashtra, Khopoli Branch, in the name of the Company and repayment was to be made within interest at the rate of 18 % p.a. He deposed that the first running bill was issued within 2/3 months from commencing of the construction and progress of construction was depending on the supply of cement bags from the defendants. He testified that supply of cement bags should have been atleast 1000 bags per month as the plaintiff had capacity to utilise 1000 bags of cement. Cement in those days was available on permit and till September 1981 the defendants supplied 3355 bags of cement. He testified that supply of cement was not regular after September, 1981 and construction was stopped for want of cement. He also testified that after September 1981 to July 1983 rates of building material were increased by 100% and therefore the defendants accepted his proposal for increase in rates of construction and passed resolution bearing no.64 of 1983. This resolution was stayed by the Collector, Raigad at the instance of one Councillor. He preferred a revision with the Commissioner, Raigad. However, the same was rejected and stay was confirmed. This resolution was stayed by the Collector, Raigad at the instance of one Councillor. He preferred a revision with the Commissioner, Raigad. However, the same was rejected and stay was confirmed. He also deposed that against order of the Commissioner, he filed an application to the government and the government allowed his application and as per this decision it was decided to enter into a fresh agreement which was executed on 16th May 1988 and thereafter resolution no.51 of 1988 was passed on 29th June, 2988. He deposed that he was ready and willing to perform his part of contract as per the new agreement but, the defendants were not ready. They did not abide by the terms and conditions of the agreement. They did not supply cement bags and did not make any payment against it. In para 17 he deposed that he has submitted the running bill of Rs.10,10,000/- to the defendants. However, payment under this bill was not paid to him and therefore on 21st August, 1989 notice was issued to the defendants. In para 8 he deposed that after filing of the suit there was a meeting between the office bearers of the defendants and himself on 31st December, 1990 and it was decided to make payment of the running bills of Rs.10,10,000/- and they further agreed payment of Rs.26,00,000/- towards damages subject to outcome of the suit. The defendants thereafter passed a resolution No.43 dated 9th May 1991. The defendants also wrote a letter on 5th December 1991 to the Collector, Raigad seeking permission to make payment of Rs. 10,10,000/-. However, the Collector, Raigad did not give permission and no payment is made till today. In para 8 he has deposed that during the pendency of the suit he became President of Khopoli Municipal Council and he advised the plaintiff to give up their claim regarding the construction of the hospital and suit claim is restricted for recovery of the amount of running bills and damages. 12. In cross examination, he admitted that he was the Councillor during the period from 1978 to 1984 and from 1996 onwards. He further admitted that whenever he was not Councillor somebody from his family used to be Councillor of the defendant-Council. However, he denied that he has influenced other Municipal Councillors. He also admitted that he was unable to give the account of the centering. He further admitted that whenever he was not Councillor somebody from his family used to be Councillor of the defendant-Council. However, he denied that he has influenced other Municipal Councillors. He also admitted that he was unable to give the account of the centering. In para 11 he admitted that whatever bills he has produced on record are as per the measurement maintained by the defendants. He further admitted that the completed construction was measured and plaintiff has submitted the running bills accordingly. He also admitted that there is no construction which is not measured by the defendants and about which no bill is prepared by him. In para 13 he has specifically admitted that the plaintiff had utilised 2355 cement bags upto February 1982. He also admitted that plaintiffs received 3355 cement bags from the defendants up to February 1988. He admitted that measurement books were signed by his brother. He admitted the measurement recorded in the books. He admitted having received 3 running bills. In para 14 he has deposed that he has not produced any document in respect of account of centering materials. He also admitted in this para that he has not produced any more document whatsoever in respect of the claim of Rs.10,10,000/-. He was confronted with the advocate’s letter dated 6th November, 1988 under which the plaintiffs agreed for deduction of an amount of advance from running bills. In para 15 he admitted that there is no documentary evidence in respect of the claim towards payment of salaries of watchman and gatekeeper. In this para he also deposed that he has not produced any document for refund of interest of loan amount to the bank or interest. 13. The plaintiff also examined one Jamal Sisotia as PW 2. This witness is doing business of contractor in the name of Universal Contractor. He deposed about the material required for slab work and cost of material. He has also given rate of rent of that material. In cross examination he has admitted that Laxman Sable is having his own centering materials 14. The defendants examined Sunil Gawde Civil Engineer as DW1. He deposed about the tender and agreement executed between the defendants and the plaintiff on 19th August, 1980. He has also given rate of rent of that material. In cross examination he has admitted that Laxman Sable is having his own centering materials 14. The defendants examined Sunil Gawde Civil Engineer as DW1. He deposed about the tender and agreement executed between the defendants and the plaintiff on 19th August, 1980. He deposed that up to 30th December 1981 the defendants supplied 3355 cement bags to the plaintiffs and there was no dispute between the parties about supply of cement. He further testified that the plaintiffs did not complete the construction of hospital in proportionate of supply of cement. The Chief Officer accordingly sent notices to the plaintiff from time to time which are exhibited at Exhibit 152 to 154. He specifically deposed that the plaintiff did not complete the work within the prescribed time but on the contrary demanded higher rent and thereafter removed the centering material from site and work was stopped. Notice was given accordingly on 16th September, 1982 to the plaintiff. He deposed that the plaintiff used to make request and accordingly he was given cement bags. He deposed that about the resolution of 1984 and 1986 regarding escalation of price. However, these resolutions were stayed by the Collector. In para 4 he referred to the letter dated 6th April, 1988 at Exhibit 163 in which the plaintiff agreed for the deduction of advance from the running bills. He has deposed that the defendants supplied total 6000 cement bags. However, the plaintiff utilised only 4000 cement bags. After the fresh contract of 1988, the plaintiff started work for sometime and again started demanding increase in rates. Thereafter, the defendants passed a resolution dated 23rd December 1988 calling upon the plaintiff to start work within 15 days. The plaintiff was informed accordingly by letter dated 4th January 1989. However, the plaintiff did not start work of construction. He specifically denied that demand of Rs.10,10,000/- was for the work done. He further deposed that there is no construction on site for which no payment is made to the plaintiff as per the measurements and defendants are not liable towards the loss for any unexecuted work. He also deposed that the defendants never restrained the plaintiff from carrying out further construction. 15. He further deposed that there is no construction on site for which no payment is made to the plaintiff as per the measurements and defendants are not liable towards the loss for any unexecuted work. He also deposed that the defendants never restrained the plaintiff from carrying out further construction. 15. In cross examination in para 14 he deposed that in the year 1980 Laxman Sable was Councillor from his family and thereafter in the next term in 1984 wife of Laxman Sable was the councillor. For the term 1990, son of Laxman Sable was the Councillor from his family and in the year 1992 Tukaram Son of Laxman Sable and wife of Laxman Sable were the Councillors. In para 20 he admitted that the plaintiff submitted bills for centering at Exhibit 121 dated 6th February 1989 and bills at Exhibit 126 and 127 claiming interest on bank loan and by Exhibit 128 claimed bills for watchman. In para 21 he denied that there was compromise between the defendants and the plaintiff in the year 1990 as per Exhibit 139. He expressed ignorance regarding the plaintiff’s application dated 16th March 1991 for payment of Rs. 10,10,000/-. 16. The plaintiff claimed breach of the agreement on the part of the defendants for want of supply of cement bags being not proportionate etc. If the case of the plaintiff is perused minutely then it is clear that the plaintiffs was alleging breach of the terms and conditions in supply of cement bag, prior to the executing the latter agreement dated 16th May 1988. It is not disputed that the second agreement was executed in pursuance of the government order and thereby agreeing to the rate of construction as per resolution nos. 58 dated 25th July, 1986. Under this agreement the plaintiffs were obliged to complete the construction within a period of 15 months. It is clear from this agreement that the rate as per resolution no.58 dated 25th July, 1986 was to be given to the plaintiff for further construction and further period of 15 months was also given to him to complete the construction. In view of these developments the plaintiffs could not have complained about the alleged breach of agreement on the part of the defendants namely non supply of cement bags etc which is prior to the execution of latter agreement of 1988. In view of these developments the plaintiffs could not have complained about the alleged breach of agreement on the part of the defendants namely non supply of cement bags etc which is prior to the execution of latter agreement of 1988. However, since it is the specific case of the plaintiffs made out in the plaint and in his deposition let us scrutinise the evidence in this regard. 17. In the light of the evidence adduced by the respective parties, we have to consider which of the party has committed breach of the agreement. It is the case of the plaintiff that the defendants have committed breach of the terms and conditions of the agreement by not supplying cement bags, by not recording the measurement in the measurement book because of non-cooperative attitude of the defendants and non payment of running bills. Case of the defendants on the contrary was that supply of cement bags were made as per the requirements of the plaintiff. The measurement of construction was taken in the measurement book and payment of advance of running bills were made to the plaintiff. The plaintiff was obliged to complete the construction of hospital building within a period of 18 months from the date of execution of the agreement dated 19th August, 1980. In para 13 constituted attorney of the plaintiff deposed as follows: We have utilised 2355 cement bags up to February 1982. Again I say that up to 3rd December 1981. It is true that we received 3355 cement bags from the appellant up to “February 1982.”. It is true that we received 3355 cement bags from the council up to February, 1982.” Above admission on the part of the C.A. of the plaintiffs do show that the Municipal council supplied 3355 cement bags to the plaintiff till February 1982. However, only 2355 bags were utilised up to February 1982 or 3rd December 1981. This admission totally demolish the case of the plaintiff that construction of hospital work was stopped due to non supply of cement bags. It is clear from the above admission that though adequate quantity of cement bags were supplied to the plaintiff, he could not utilise the total bags supplied by the municipal council. 18. This admission totally demolish the case of the plaintiff that construction of hospital work was stopped due to non supply of cement bags. It is clear from the above admission that though adequate quantity of cement bags were supplied to the plaintiff, he could not utilise the total bags supplied by the municipal council. 18. In para 11 of the cross examination, C.A. of the plaintiff Laxman Sable deposed as follows: “What ever running bills we have produced on record are as per the measurement maintained by the defendants. It is true that whatever construction was completed that has been measured and we have submitted the running bills accordingly. There is no construction which is not measured for and about which no bill is prepared by me.” This admission of the C.A. Of the plaintiff also falsify the plaintiff’s that they defendants did not measure the constructed work and running bills are not paid accordingly.” 19. In this regard, the defendants relied upon the documentary evidence at Exhibit 150 to 154. Exhibit 150 is letter dated 25th June 1981 addressed to the plaintiff by the defendants. It is stated in this letter that they have supplied the required cement and directed the plaintiff to start construction. Exhibit 151 is letter dated 18th August 1982 addressed to the plaintiff by the defendants. This letter indicate that since 30th September 1981 work is being stopped on site and the defendants agreed to consider the extention of time for construction of the building. Exhibit 152 is the letter dated 19th February 1982. in this letter complaint is made by the defendants that though in the month of 1981 advance is paid to the plaintiff by running bills the plaintiff did half of the slab work and then it was stopped. It is further pointed out that they have supplied cement for first slab and thereafter construction is being stopped. The defendants also pointed out that work of the plaintiff was not satisfactory. At exhibit 153 is letter dated 12th July 1982 by the defendants to the plaintiff. By this letter it was pointed out to the plaintiffs that he has removed the centering material from the site which is not proper behaviour. Exhibit 154 is letter addressed to the defendants by the plaintiff which show that due to rains there was damage and therefore the plaintiff removed the centering material from site. 20. By this letter it was pointed out to the plaintiffs that he has removed the centering material from the site which is not proper behaviour. Exhibit 154 is letter addressed to the defendants by the plaintiff which show that due to rains there was damage and therefore the plaintiff removed the centering material from site. 20. If the correspondence produced by the defendants at Exhibit 150 and 154 is considered in its proper perspective then it is clear to our mind that there is no substance in the contention of the plaintiff that the construction work was stopped for want of cement bags. The above documentary evidence coupled with the admitted fact that the plaintiff received 3355 cement bags till February 1982 do show that the plaintiff failed to complete construction work in proportionate with supply of cement bags by the defendants. 21. It is true that in resolution passed in the year 1983 and 1984 it is stated the work of hospital building could not be completed for want of supply of cement and accordingly, escalation in rates were granted to the plaintiff in construction. However, it is the case of the defendants that family of the plaintiff is influential and since 1974 members of the said family were continuously municipal councillors of the defendants. At one time there were 3 councillors from the family of the plaintiff and brother Laxman Sable C.A. of the plainitiff and who was occupying position of President of the council. It is the specific case of the defendants that the plaintiff’s family used to their influence to get undue advantage. From the evidence produced on record it is clear that entire correspondence in respect of the subject matter of the suit was made by Laxman Sable brother of the plaintiff with the defendant-council. Evidence was also given by the said Laxman Sable on behalf of the said plaintiffs. In these circumstances, the only inference can be drawn is that though tender was allotted and agreement was executed in the name of the plaintiff Ram Sable. Yet, construction was undertaken by Laxman Sable who was at the relevant time was councillor of the defendants. In our opinion, it is highly inappropriate on the part of a sitting councillor, to obtain contract of the municipal council in which he is a municipal councillor either in his name or in the name of the family member. Yet, construction was undertaken by Laxman Sable who was at the relevant time was councillor of the defendants. In our opinion, it is highly inappropriate on the part of a sitting councillor, to obtain contract of the municipal council in which he is a municipal councillor either in his name or in the name of the family member. We are of the clear opinion that brother of the plaintiff by utilising his position as councillors, and subsequently as President of the municipal council got passed resolutions mentioned above. In that view of the matter, in our view, weightage need not be given to the resolution passed in the years 1983 and 1986 while arriving at a conclusion as to who is at fault especially when witness of the plaintiff admitted that though the plaintiffs had received 3355 cement bags till December, 1982 only 2355 cement bags were utilised till February 1982. We find substance in the contention of the defendants that the plaintiff was and in fact only interested in getting escalation in the amount of construction and not in completing the construction within the stipulated time under the agreement in question. Thus, it is the plaintiff who has committed breach of the terms and conditions of the agreement by not completing the construction work and the defendants thus cannot be held liable for the same. 22. Once it is concluded that the defendants have not committed any breaches of the agreement and it is the plaintiff who has failed to complete the construction work within the stipulated time then in our view, the plaintiff is certainly not entitled for any damage under any of the heads. However, since the evidence is adduced by respective parties in this regard, we are dealing with the same aspect hereinafter. 23. Firstly, we will deal with the plaintiff claim of Rs.10,10,000/- towards running bills. This amount is claimed by the plaintiff on the basis of a writing dated 31st December 1990 at Exhibit 139 and resolution nos. 43 dated 9th May 1991 at Exhibit 163 and letter of the President of the defendant- Municipal council to the Collector, Raigad dated 5th December, 1992 at Exhibit 149. Exhibit 139 is the minutes of meeting. These minutes are signed by the President of the municipal council and 8 others. C.A. of plaintiff Laxman Sable and his wife are the signatories of these minutes. Exhibit 139 is the minutes of meeting. These minutes are signed by the President of the municipal council and 8 others. C.A. of plaintiff Laxman Sable and his wife are the signatories of these minutes. Wife of Laxman Sable is shown as councillor of defendant-council. Under these minutes the meeting was called for settling of the dispute between the parties and it was stated that the plaintiffs has filed a suit for damage of Rs. 36,00,000/- from the defendants. It is further stated that out of Rs.36,00,000/- amount of Rs.10,00,000/- is towards the running bills and amount of Rs.26,00,000/- is towards damages. It is further stated that the amount of damages will be subject to the final hearing of the suit and the plaintiffs should start work of construction of hospital and complete the same within a period of one year and within 8 days from the commencement of construction an amount of Rs.10,00,000/- is be given to the plaintiffs. Clause 5 of the minutes of the meeting is very specific under which final decision in this regard is to be taken after approval of the council and secretary of the Urban Development Department. 24. Exhibit 134 is the resolution no.43 passed on 9th May 1991. By this resolution the council considered the representation of the plaintiff dated 16th May 1991 and it is resolved that action regarding payment be taken in accordance with rules after obtaining report from the PWD of the government. It is further resolved that decision regarding payment to the plaintiff be taken in consultation with the technical Engineer of the government. It was further resolved that after obtaining opinion of the technical expert of the government decision regarding increase in the construction rate as per 1991-92 DSR be taken. 25. By a letter dated 5th December, 1992 President of the municipal council asked permission from the Collector, Raigad to pay to the plaintiff an amount of Rs.10,10,000/-. At this stage, it is worthwhile to make a reference to Exhibit 163. Exhibit 163 is the letter dated 6th November, 1988 by the plaintiff to the Chief Engineer of the defendants. By this letter the plaintiffs agreed that advance given to him may be deducted from the running bills so as to enable him to commence work. At this stage, it is worthwhile to make a reference to Exhibit 163. Exhibit 163 is the letter dated 6th November, 1988 by the plaintiff to the Chief Engineer of the defendants. By this letter the plaintiffs agreed that advance given to him may be deducted from the running bills so as to enable him to commence work. This writing was given by the plaintiffs after the order passed by the government granting escalation in rates in construction as per resolution no. 57 of 1986 and prior to execution of the agreement dated 6th May 1988. Exhibit 156 is the plaintiff’s letter dated 25th May 1988 under which they have acknowledged payment of Rs.6,21,496/- towards running bills. Of course this payment is accepted under protest. 26. Exhibit 124 is the letter by the plaintiff to the defendants’ C.E.O. Under which he claimed payment of Rs. 6,98,600.95 under bill dated 9th January 1989. In pursuance of this bill, the plaintiffs were paid an amount of Rs.6,21,496/- for which the plaintiff have executed receipt on 25th June, 1986 which is at Exhibit 156. 27. It is the specific case of the plaintiff that bill of Rs.10,10,000/- is due from the defendants as on 30th September, 1988. Plaintiff’s claim for Rs.10,10,000/- is falsified in view of the document at Exhibit 124 i.e letter dated 31st January 1989 in which he claimed an amount of Rs.6,98,600/- as per bill dated 9th January 1989. This claim of the plaintiff in letter dated 31st January 1989 is made over and the same is evidenced by document at Exhibit 156 which is receipt executed by the plaintiff on 25th May 1988 acknowledging Rs.6,21,696/- under protest. If the plaintiff as on 31st January 1989 claimed Rs.6,58,600/- and the defendants on 25th May 1988 paid to the plaintiff Rs.6,21,096/- then it is not understood how the plaintiff could claim further amount of Rs.10,10,000/- claiming the same to be outstanding as on 30th September, 1988. Again at this stage, it is relevant to mention that by document at Exhibit no.163 the plaintiff admitted the advance given to him by deducting from four running bills. 28. In this context, it is the specific case of the defendants that the plaintiff must establish that the claim of the outstanding amount of Rs.10,10,000/- which must be for the work done by him subsequent to execution of agreement dated 16th May 1988. 28. In this context, it is the specific case of the defendants that the plaintiff must establish that the claim of the outstanding amount of Rs.10,10,000/- which must be for the work done by him subsequent to execution of agreement dated 16th May 1988. However, the plaintiff have not given any particulars of this bill. The C.A. of the plaintiff in para 14 of his cross examination has specifically admitted that he has not produced any more document in respect of Rs.10,10,000/-. He was also confronted with letter dated 6th April 1988 at Exhibit 163. A conjoint reading of the above documentary evidence only conclusion that can be arrived at by the plaintiff claim of Rs.10,10,000/- not towards the work subsequent to the execution of the latter agreement but, the same is being claimed for the work by way of escalation in the rates of construction for the work done earlier between the period from 1980 to 1984 by way of difference in the rate granted in 1980 and the rates granted under the orders of the government mentioned above. In fact, it is clear from the government’s order that the rate as per resolution no.57 of 1986 was to be given for construction which is to be carried out subsequent to the order and not to the earlier construction which was completed prior to the date of the order. 29. It is true that under Exhibit 139 it was agreed that the amount of Rs.10,10,000/- was to be paid to the plaintiff. However, this amount was to be given after according necessary approval of the government and that of the Secretary in the Urban Development Department. It appears that this decision was influenced by the plaintiff’s brother Laxman Sable and his wife who was municipal councillor and who was present in the meeting. On the basis of this document, there is no doubt in our mind that the so called decision is taken under the influence of plaintiff’s brother and his wife. This minutes does not show the particulars of work completed by the plaintiff. Exhibit 147 is the copy of resolution no.43 passed on 9th May 1991. On the basis of this document, there is no doubt in our mind that the so called decision is taken under the influence of plaintiff’s brother and his wife. This minutes does not show the particulars of work completed by the plaintiff. Exhibit 147 is the copy of resolution no.43 passed on 9th May 1991. This resolution does not take the plaintiff’s case any further regarding payment of Rs.10,10,000/- in as much as in this resolution there is no reference regarding outstanding bill of the plaintiff to the extent of Rs.10,10,000.- and therefore, no relevant can be placed. 30. Letter dated 5th December, 1992 also cannot be relied upon by the plaintiff in this regard. The said letter is written by the President of the defendants. This letter is sent in pursuant of the resolution dated 9th May 1991 which is at Exhibit 147. As stated above, resolution at Exhibit 147 is silent about the so called due payment of Rs.10,10,000/- to the plaintiff. Therefore, the plaintiffs cannot contend that in this letter President of the defendants admitted the plaintiff’s claim for the due payment of Rs.10,10,000/-. 31. In the light of above we are of the clear opinion that the plaintiffs have failed to establish his claim of Rs.10,10,000/- from the defendants. 32. The plaintiff claimed for damages of Rs.17,18,811/- towards the interest amount which were required to pay to the bank due to delaying tactics adopted by the defendants, Rs.10,20,000/-towards the rent of centering materials as on the date of the suit,Rs.3,13,600/-, towards payment of salary to the gateman and watchman, Rs.65,000/-towards refund of security deposit and Rs. 19,50,000/- towards profit can be discussed hereinbelow: 33. Let us consider the plaintiff’s claim one by one: The amount of Rs.17,18,811/- claimed towards interest which the plaintiff was required to pay to the bank due to the delay in completing the project. It is case of the plaintiffs that he has taken a loan of Rs. 3,50,000/- from the bank. It is the specific case of the plaintiff that he obtained loan from the Bank of Maharashtra for doing the work in question. PW1 in para 12 specifically stated that there is no documentary evidence in his custody in respect of payment of Rs. 17,17,000/- to the bank by the plaintiff. 3,50,000/- from the bank. It is the specific case of the plaintiff that he obtained loan from the Bank of Maharashtra for doing the work in question. PW1 in para 12 specifically stated that there is no documentary evidence in his custody in respect of payment of Rs. 17,17,000/- to the bank by the plaintiff. He has contradicted the above statement by saying that the plaintiff obtained loan in the name of M/s Sable and Co. He has specifically admitted that he has not produced any document on record for refund of loan amount or interest. In this regard, he relied upon document at Exhibit 127. However, he admitted that it is not mentioned in document at Exhibit 127 that loan amount of Rs.3,50,000/- and interest thereon is due against the plaintiff Ram Sable. It is not disputed that amount of Rs.2,70,000/- was initially given to the plaintiff by defendants immediately upon execution of the first agreement towards advance. If that is so, it was not necessary for the plaintiff firstly to raise loan from the bank on undertaking execution of the construction work even if it is assumed for the sake of argument that the respondents obtained said loan from Bank of Maharashtra. However, absolutely there is no material on record to come to the conclusion that the plaintiff paid amount of Rs. 17,00,000/- towards interest to the bank which fact is admitted by the C.A. Of the plaintiff. We have already recorded a finding that the construction of hospital building was delayed because of the greedy attitude of the plaintiffs. In that view of the matter, we are of the clear opinion that the plaintiff failed to prove his claim for damages. 34. The plaintiff has claimed an amount of Rs. 3,13,600/- towards salaries of watchman and gatekeepers. In para 50 of the cross examination of the respondents C.A. he has specifically admitted that in respect of payment of salaries of watchman and gatekeeper, there is no documentary evidence. In this regard, the plaintiff could not produce books of accounts to substantiate his case. Be that as it may under Exhibit 154 the plaintiff agreed that due to rainy reasons, to avoid damages he removed the materials and machines. This was done in the year 1982 itself. If that is so, then it is not understood as to why the plaintiff was required to engage watchman and gatekeepers. Be that as it may under Exhibit 154 the plaintiff agreed that due to rainy reasons, to avoid damages he removed the materials and machines. This was done in the year 1982 itself. If that is so, then it is not understood as to why the plaintiff was required to engage watchman and gatekeepers. One can understand if machinery of the plaintiff is lying at the site for protection thereof. He is required to engage watchman. However, this machinery and materials was already removed. The plaintiff was not at all required to engage watchman and gatekeepers to protect the same. In absence of any material on record, the plaintiff cannot claim any damage under this head. 35. The plaintiff has further claimed an amount of Rs. 10,20,000/- towards rent of materials and machineries. In order to succeed in the plaint, the plaintiff are expected to produce documents of accounts showing that he paid amount for machineries. In para 14 C.A. Of the plaintiff specifically deposed that he is not going to produce any document in respect of account of centering machines claimed in the suit. Again in para 11 of the cross examination contradictory statements are made. At one place it is stated that C.A. Of the plaintiff by name Laxman Sable is owner of the material and at another place it is stated that the plaintiff- Ram Sable was owner of the centering machines. This material as per document at Exhibit 154 was already removed by the plaintiff. If that be so, then the question of damages towards rent of machines does not arise for consideration. The plaintiff in our view, failed to prove this damage under this head. 36. The plaintiff claimed Rs.19,50,000/- towards loss of profit. It is clear that on the basis of 15,60,000/- under this head it is clear that on the basis of resolution no.147 dated 9th May 1991. The resolution however, was subject to approval by the technical officer of the government. There is no evidence on record that this resolution was subsequently approved by the government and therefore the plaintiff cannot rely upon this resolution in order to claim loss of profit based on DSR of 1990-92. The resolution however, was subject to approval by the technical officer of the government. There is no evidence on record that this resolution was subsequently approved by the government and therefore the plaintiff cannot rely upon this resolution in order to claim loss of profit based on DSR of 1990-92. Be that as it may, we have already held that the plaintiff and not the defendants has committed breach of the terms and conditions of the agreement The plaintiff was only interested in hike in the rate of construction and therefore he stopped the construction. The plaintiff even tried to extract money from the defendants utilising his influential position in the defendant-council. In that view of the matter, we are of the considered opinion that the plaintiff is not entitled to claim damages under the head loss of profits. 37. Now, we will consider the counter claim of the defendants. The defendants made counter claim for recovery of Rs.5,18,937/-. Out of this amount, Rs. 5,50,000/- is towards recovery of advance and amount of Rs.63,937/- is towards cost of the unutilised cement bags by the plaintiff. 38. The evidence of the Engineer of the defendants disclosed that there is no proof for payment of advance. In our view, the defendant’s claim made in the counter claim cannot be granted for want of particulars in the evidence adduced by them on their behalf. The defendants have paid running bills of the plaintiff as on 25th May 1988 which is evidenced by at document at Exhibit 56. Regarding unutilised cement bags by the plaintiff there are no satisfactory evidence. In that view of the matter, we are not inclined to entertain the counter claim of the defendants. 39. Taking over all view of the matter, we are of the view that the plaintiff has failed to prove that the defendants have committed breaches in the agreement, further the plaintiff failed to prove his claim for damages. At the same time, the defendants also failed to prove its counter claim. We accordingly, quash and set aside the impugned judgment of the lower court. Special Civil Suit No.91 of 1992 on the file of the Civil Judge, Sr.Division, Panvel is dismissed with costs. Counter claim of defendants also stands dismissed. 40. This Court admitted the First Appeal on 17th July, 1998. We accordingly, quash and set aside the impugned judgment of the lower court. Special Civil Suit No.91 of 1992 on the file of the Civil Judge, Sr.Division, Panvel is dismissed with costs. Counter claim of defendants also stands dismissed. 40. This Court admitted the First Appeal on 17th July, 1998. and stay was granted to the effect and operation of the impugned judgment and decree on the condition that the defendants shall deposit the entire decreetal amount of Rs.75,00,000/-. This amount was allowed to be withdrawn by the plaintiff after furnishing bank guarantee. The plaintiff pursuant to this order has withdrawn the decreetal amount on furnishing bank guarantee Since we have dismissed the suit the plaintiff is directed to re-deposit the said amount in this court within a period of eight weeks from today.