Judgment: Heard Shri S. Vahidulla, learned Government Advocate appearing for the appellants and Shri Nitin Sardessai, learned Counsel appearing for the respondent. 2. The above appeal challenges the judgment and decree passed in Civil Suit No.11/2004 dated 30/06/2007 whereby the suit filed by the respondents was partly decreed and the appellants were inter alia directed to pay a sum of Rs.24,73,221.27/-. There was a further direction to the respondent to pay the costs of 175 barrels at the rate of Rs.8,439/- per metric ton to the appellants herein. 3. Upon being served, the respondent filed their cross-objection disputing the correctness of the direction to pay the said sum towards the costs of 175 barrels. 4. During the pendency of the above appeal an application came to be filed by the respondent under Order 41 Rule 27 of the Civil Procedure Code for leave to produce additional documents. This Court by an order dated 21/04/2008 directed that the above application be considered at the time of the final hearing of the above appeal. Consequently, the appeal along with the cross-objection and the above application came to be heard. 5. Briefly the facts of the case are that a suit came to be filed by the respondent alleging, inter alia, that they have been allowed to carry out the work of improvement of geometric S.H. between Digne-Surla section leading from Honda to Usgaon. It is further then case that the work order to the tune of Rs.54,76,089/-was issued to the respondent and the date of the commencement of the said work was 7/08/1998. It is further the case of the respondent that an amount due under the contract was not paid by the appellants. It is also their case inter alia that the respondent was asked to carry out some extra work which according to them were performed by them at the request of the appellants for which the amounts have not been duly paid by the appellants. It is the contention of the respondent that on account of such extra works as well as the amount due for the work actually performed by the respondent a total amount due to the respondent was Rs. 26,75,753/-. A break up of the said amount as claimed by the respondent has been specified at para 6 of the plaint. It is the contention of the respondent that on account of such extra works as well as the amount due for the work actually performed by the respondent a total amount due to the respondent was Rs. 26,75,753/-. A break up of the said amount as claimed by the respondent has been specified at para 6 of the plaint. It is further their case that there was default committed by the appellants and as such the work could not be completed and consequently the suit came to be filed for the purpose of recovering the said sum of Rs.26,75,753/- with interest at the rate of 20% per annum from 27/01/2003 up to the actual payment. 6. The appellants filed their written statement disputing the claim put forward by the respondent. It is the case of the appellants that the respondent had abandoned the work which was entrusted to them pursuant to the said work order. The appellants were attributing the delay as well as non performance of the work to the respondent. The appellants also disputed that any extra work was carried out by the respondent. All the amounts claimed by the appellants were disputed by the respondent in the written statement. It is further their case that respondent is not entitled for any amount as according to them the work was kept incomplete by the respondent. It is also the contention of the appellants that even Security Deposit could not be paid to the respondent as the work was incomplete. For all other reasons as stated in the written statement the appellants prayed that the suit be dismissed. 7. The learned Judge after framing the issues and recording of evidence by the impugned judgment and decree dated 30/06/2007 partly decreed the suit in terms as stated herein above. Being aggrieved by the said judgment and decree the appellants have preferred the present First Appeal. 8. The respondent has filed Cross-objections as stated herein above. 9. Shri S. Vahidulla, learned Government Advocate appearing for the appellants has assailed the impugned judgment on the ground that the learned Judge has not at all considered clause 12(iii) of the Agreement which clearly provides that any extra work was to be paid on the basis of GSR 1993. 8. The respondent has filed Cross-objections as stated herein above. 9. Shri S. Vahidulla, learned Government Advocate appearing for the appellants has assailed the impugned judgment on the ground that the learned Judge has not at all considered clause 12(iii) of the Agreement which clearly provides that any extra work was to be paid on the basis of GSR 1993. The learned Counsel has pointed out that the learned Judge whilst passing the impugned judgment has fixed the amount payable to the respondent on the basis of GSR 1997 which was not even contemplated or agreed between the parties. The learned Counsel further pointed out that the appellants have disputed that the respondent had carried out any extra work as according to them no such extra work was done by the respondent. The learned Counsel further pointed out that even assuming that any extra work was carried out by the respondent, the respondent were entitled to claim the value thereof only on the basis of GSR 1993. The learned Counsel further pointed out that according to the appellants such work was carried out partly during the subsistence of the agreement between the parties. The learned Counsel further pointed out that the learned Judge has fixed the compensation on the basis of GSR 1997 when according to him on perusal of the plaint filed by the respondent there are no pleadings on that count. The learned Counsel further pointed out that the learned Judge has come to the conclusion that such extra work has been carried out after the agreement has lapsed when according to him no pleadings to that effect are found in the plaint filed by the respondent. The learned Counsel further pointed out that as the alleged extra work was not authorized by the appellants the question of claiming any compensation on that count would not arise. The learned Counsel has thereafter taken me through the impugned judgment and pointed out that the learned Judge has failed to consider that the respondent had abandoned the work and consequently the question of awarding any compensation would not arise. The learned Counsel further pointed out that the value of the excavation fixed by the learned Judge is not in accordance with the terms of the agreement and consequently the respondent is not entitled for such amount. The learned Counsel further pointed out that the value of the excavation fixed by the learned Judge is not in accordance with the terms of the agreement and consequently the respondent is not entitled for such amount. The learned Counsel further pointed out that the learned Judge has rightly directed to pay the compensation on account of 175 barrels which were delivered to the respondent and not accounted for by the respondent. The learned Counsel further pointed out that the cross-objections filed by the respondent have no substance as according to him the contention raised by the respondent that the said barrels were utilised for carrying out some other work on behalf of the appellants has not been established by the respondent by any cogent evidence on record. The learned Counsel has taken me through the impugned judgment and pointed out that the learned Judge has not at all considered the material on record whilst passing the impugned judgment and consequently the appeal be allowed and the cross-objections be rejected. 10. On the other hand, Shri N. Sardessai, learned Counsel appearing for the respondent has supported the impugned judgment. The learned Counsel has pointed out that once it is established that the extra work carried out by the respondent was beyond the terms of the agreement the law is well settled that the respondent is entitled to claim such amount from the appellants. The learned Counsel further pointed out that the extra work were carried out after subsistence of the agreement between the appellants and the respondent and consequently in the meanwhile GSR 1997 was already in place and, as such, the learned Judge was justified to fix the compensation on that count. The contention of the appellants that no directions were given to the respondent to carry out such extra work cannot be accepted as according to him the very fact that the appellants themselves have verified that such extra work was carried out in the documents produced at exhibit 14-E itself shows that such works were duly carried out by the respondent. The learned Counsel has relied upon the judgment of the Apex Court reported in 2007 (13) SCC 544 in the case of Food Corporation of India & Ors. The learned Counsel has relied upon the judgment of the Apex Court reported in 2007 (13) SCC 544 in the case of Food Corporation of India & Ors. V/s. Vikas Majdoor Kamdar Sahakari Mandli Ltd. With regard to the next contention of the learned Counsel appearing for the appellants it is the contention of Shri Sardessai that the question of disputing the claim of the respondent towards the excavation is totally misplaced. The learned Counsel has taken me through the impugned judgment and pointed out that such amount has been fixed on the basis of the items of the appellants. The learned Counsel further pointed out that the escalation as claimed by the respondent has not been allowed by the learned Judge. The learned Counsel further pointed out that the question of disputing the correctness of the escalation amount is totally without any foundation. With regard to the contention of Shri S. Vahidulla, learned Government Advocate that the respondent is not entitled for the refund of the security deposit, the learned Counsel pointed out that once the work has been completed the question of retaining security deposit does not arise. The learned Counsel further pointed out that the appellants have not shown that any amounts are to be recovered from the respondent and consequently the question of retaining the security deposit is totally without any basis. The learned Counsel further pointed out that the respondent are entitled for the refund of the security deposit and as such the learned Judge has rightly directed the repayment of the said amount. In support of the cross-objections the learned Counsel pointed out that the respondent has filed an application under Order 41 rule 27 of the Civil Procedure Code for production of the additional document. The learned Counsel further pointed out that this documents are with regard to the correspondence from the office of the appellant which according to him discloses that 175 barrels were utilized at the instance of the appellants to carry out some work at different locations. The learned Counsel further pointed out that this aspect has not been considered by the learned Judge whilst directing that the respondent is liable to pay the costs of 175 barrels. The learned Counsel further pointed out that this aspect has not been considered by the learned Judge whilst directing that the respondent is liable to pay the costs of 175 barrels. The learned Counsel further pointed out that these documents were not produced at the earlier stage and contended that the same are from records maintained by the appellants and as such no prejudice would occasion to the appellants in case such documents are produced. The learned Counsel further pointed out that the learned Judge has erroneously refused the grant of interest to the respondents. The learned Counsel further pointed out that once the Court has found that the appellants are liable to pay the amount to the respondents the learned Judge ought to have exercised discretion under Section 34 of the Civil Procedure Code and awarded interest. The learned Counsel further pointed out that it is well settled that rights and liabilities of the parties crystallize as on the date of the filing of the suit and once the Court has come to the conclusion that specific amount is liable to be paid to the respondents the question of refusing interest to the respondents is without any justification. The learned Counsel further pointed out that the learned Judge has rightly fixed the amount payable to the respondents, but however, has erroneously refused the payment of interest as well as the direction to pay the costs of 175 barrels to the appellants. The learned Counsel, as such, submits that the appeal preferred by the appellants be dismissed and the cross objections and application under Order 41 rule 27 be allowed. 11. I have carefully considered the submissions of the learned Counsel and have also gone through the records. On the basis of the submissions of the learned Counsel appearing for the respective parties and on perusal of the record, the following point for determination arises in the present appeal: POINTS FOR DETERMINATION (i) Whether the learned Judge was justified to direct the payment of value of the extra work as claimed by the respondents. (ii) Whether the learned Judge was justified to direct the payment of Rs.3,44,275.34/-towards escalation and the security deposit of Rs.2,60,000/- to the respondents. (iii) Whether the learned Judge was justified to direct the respondents to pay the costs of 175 barrels at the rate of Rs.8,439/- per metric ton to the applicants. (ii) Whether the learned Judge was justified to direct the payment of Rs.3,44,275.34/-towards escalation and the security deposit of Rs.2,60,000/- to the respondents. (iii) Whether the learned Judge was justified to direct the respondents to pay the costs of 175 barrels at the rate of Rs.8,439/- per metric ton to the applicants. (iv) Whether the learned Judge was justified to refuse the grant of interest on the amounts awarded to the respondents. 12. Upon hearing the learned Counsel and on perusal of the record, I find that on going through the plaint filed by the respondents, there are no specific averments to disclose as to when the extra work was carried out by the respondents. So also, though specific amounts have been claimed for such extra work there are no pleadings to the effect that such amounts have been claimed as per GSR 1997. The learned Judge whilst passing the impugned judgment has held that the appellants have admitted that such extra work was carried out only after the agreement had lapsed. On perusal of the allegations in the plaint as no such pleadings are found as to when such extra work was carried out, I find that the learned Judge was not justified to come to the conclusion that it was admitted position that such work was carried out after the agreement had lapsed. No doubt, Shri Sardesai, learned Counsel appearing for the respondents is justified to contend that in view of the judgment of the Apex Court Food Corporation of India & Ors. (supra) the respondents are entitled for the value of the extra work carried out by the respondents beyond the terms of the agreement. The Apex Court in the said judgment has gone to the extent of holding that in such circumstances a reasonable compensation can be directed to be paid to such party. In the present case, the learned Judge whilst passing the impugned judgment has fixed the compensation on the basis of GSR 1997 but failed to consider that as per the terms of the agreement the amount for the work was to be fixed on the basis of GSR 1993. No doubt, in case such extra work was carried out beyond the terms of the agreement and after the agreement lapsed the respondents would be entitled for compensation for such extra work. No doubt, in case such extra work was carried out beyond the terms of the agreement and after the agreement lapsed the respondents would be entitled for compensation for such extra work. By considering the ratio laid down by the Apex Court in the judgment reported in Food Corporation of India & Ors. (supra) on perusal of the impugned judgment passed by the learned Judge with regard to the payment of compensation towards the extra work, I find that the basis on which the learned Judge has fixed the compensation cannot be accepted, taking into consideration the pleadings of the parties as well as the statements of the witnesses examined by both the parties. In such circumstances, without going into the rival contentions as to what amount has to be paid to the respondents for the extra work, I find it appropriate that the payment of compensation for such extra work would have to be considered by the learned Judge afresh after hearing the parties in accordance with law. In the present case, the learned Judge would have to consider the pleadings and the evidence to come to the definite conclusion as to whether the extra work was done beyond the terms of agreement. No doubt the respondents would be entitled for a reasonable compensation for carrying out such extra work based on such findings. Hence, in view of the above, as far as the first point for determination, I find that the finding of the learned Judge directing the payment of Rs.17,00,000/- towards extra work deserves to be quashed and set aside and the matter to be remanded to the learned Judge to decide the said aspect afresh after hearing the parties in accordance with law. 13. With regard to the second point for determination, I find that the learned Judge has rightly come to the conclusion that the appellants are liable to pay a sum of Rs. 3,44,275.34 on account of escalation. The said amount has been fixed on the basis of the admission of the appellants themselves. Apart from that, considering that the work was not completed the appellants could not withheld the security deposit paid by the respondents. The appellants were not entitled to retain the said security deposit once the terms of the agreement have been complied. The said amount has been fixed on the basis of the admission of the appellants themselves. Apart from that, considering that the work was not completed the appellants could not withheld the security deposit paid by the respondents. The appellants were not entitled to retain the said security deposit once the terms of the agreement have been complied. In such circumstances, the learned Judge was justified to direct payment towards the escalation as well as the security deposit. Hence, to that extent the impugned judgment does not call for any interference. 14. With regard to the third point for determination, on perusal of the impugned judgment, I find that the learned Judge has directed the payment of costs of 175 barrels on the assumption that respondents have not established that such barrels were carried out for some other work of the appellants. In the present case, along with the application filed by the respondents under order 41 Rule 27 some documentary evidence has been produced which is referable to the said dispute. Considering the documents are from the department of the appellants, I find no reason to refuse leave to produce the said documents. No doubt, the said documents would have to be proved in accordance with law by the respondents and the appellants would have to be given liberty to rebut the said document. In such circumstances, the direction of the learned Judge directing the payment of the value of 175 barrels would have to be quashed and set aside. The matter on that count would have to be remanded to the learned Judge to decide it afresh after permitting the respondents to produce the said documents as stated in the said application under Order 41 rule 27 in accordance with law. No doubt, the appellants would have right to lead rebuttal evidence in answer to any evidence on that count. 15. With regard to the fourth point for determination, it is well settled that the rights of the parties stand crystallized as on the date of the filing of the suit. The appellants have illegally withheld the security deposit and wrongly failed to pay escalation amount despite of the fact that the respondents were entitled for the said amount. Hence, I find that the learned Judge was not justified to refuse the payment of interest to the respondents. The appellants have illegally withheld the security deposit and wrongly failed to pay escalation amount despite of the fact that the respondents were entitled for the said amount. Hence, I find that the learned Judge was not justified to refuse the payment of interest to the respondents. In such circumstances, apart from two aspects referred to herein above including the value of the extra work, I find that the appellants are liable to pay interest at the rate of 6% p.a. from the date of the filing of the suit up to actual payment. To that extent, the impugned judgment would have to be modified. The payment of interest on account of extra work and towards the refund of the value of 175 barrels would have to be considered by the learned Judge after hearing the parties on its own merits in accordance with law. The fourth point for determination is answered accordingly. 16. At this stage, Shri Vahidulla, learned Government Advocate has pointed out that the appellants have deposited the decreetal amount before this Court. It is also pointed out that some amount was allowed to be withdrawn by the respondents and some amount was directed to be withdrawn with Bank Guarantee. The amount to be refunded if any would be considered when an appropriate application is filed for withdrawal of such amount. No doubt, if any amount is to be refunded by the respondents it would carry interest at the rate of 6%. 17. In view of the above, I find it appropriate that the matter be remanded to decide the following three points for determination: (i) Whether the respondents are entitled for the value of the extra work as claimed in the plaint. (ii) Whether the respondents are liable to refund the value of 175 barrels at the rate of Rs.8439/- per metric ton. (iii) Whether the parties are entitled for payment of interest on the said amounts and at what rate. 18. In view of the above, I pass the following order: ORDER (i) The appeal is partly allowed. (ii) The impugned judgment and decree dated 30/06/2007 passed by the learned Judge is modified. (iii) The direction to pay the amount of Rs.68,660/-towards escalation; excavation in foundation Rs.2,250/-, rubble packing Rs.563.18, RCC pipes Rs.1499.75, escalation Rs.3,44,275.34 and the security deposit of Rs.2,60,000/-is upheld. (ii) The impugned judgment and decree dated 30/06/2007 passed by the learned Judge is modified. (iii) The direction to pay the amount of Rs.68,660/-towards escalation; excavation in foundation Rs.2,250/-, rubble packing Rs.563.18, RCC pipes Rs.1499.75, escalation Rs.3,44,275.34 and the security deposit of Rs.2,60,000/-is upheld. (iv) The appellants are directed to pay the said amount with interest thereof at the rate of 6% p.a. from the date of the filing of the suit up to the actual payment. (v) The direction to pay to the respondents the value of Rs.17,19,753/- towards extra items as well as the direction to the respondent to pay the costs of Rs.175 barrels at the rate of Rs.8439/- metric tons to the appellants is quashed and set aside. (vi) Civil Suit No.11/2004 is restored to the file of the District Judge to decide the said points for determination referred to herein above in accordance with law. (vii) The appeal stands disposed of accordingly with no order as to costs. (viii) The parties are directed to appear before the learned District Judge on 8/02/2013 at 10.00 a.m.