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Bombay High Court · body

2012 DIGILAW 258 (BOM)

Executive Engineer v. Subhash Vasudev Tilve

2012-02-03

U.V.BAKRE

body2012
Judgment 1. The defendants have filed the above appeal against the Judgment, Order and Decree dated 27/09/2002 passed by the learned Civil Judge Senior Division, Bicholim, (“Trial Judge”, for short) in Special Civil Suit No. 17/1999. The Plaintiff of the said suit has filed the cross objection. 2. The parties shall hereinafter be referred to in the manner in which they appear in the cause title of the said Special Civil Suit No. 17/1999. 3. The plaintiff had filed the said suit for following prayers: (a) For a declaration that the letter dated 4/4/1996 issued by defendant no. 1 and received by the plaintiff on 13/4/1996 is illegal and void and said letter amounts to have been withdrawn by the defendants by their acts and deeds subsequent to said letter and that defendants are estopped from acting on the said letter. (b) For a declaration that letter dated 12/6/1996 issued by the defendant no. 2 and letter dated 17/6/96 issued by the defendant no. 1 are void and illegal and not binding on the plaintiff. (c) For a declaration that plaintiff was wrongfully prevented from executing the work from 12/6/96 and that determination of the contract is illegal and amounts to breach of contract. (d) For a declaration that in view of illegal determination of the contract, the plaintiff is entitled to recover compensation, damages and other loss incurred, from the defendants. (e) For an order directing the defendants to pay to the plaintiff a sum of Rs. 8,08,206.25 by way of compensation, damages, loss and value of the work done as stated in the plaint together with interest at the rate of 21% p.a. on the said amount from the date of suit till actual realization of the amount. (f) For an order of permanent injunction restraining the defendants, their successors in office or any other person holding or authorised in that behalf, from acting under clause 3(c) of the contract and further restraining them from recovering any amount from the plaintiff being the excess expenditure incurred on the said work after the same was re-tendered or being the difference in tender amount allotted to the plaintiff and retendered amount including any further amount sanctioned in excess of tender amount for completion of the work. (g) For permanent injunction restraining the defendants, their successors-in-office or authorised persons on their behalf from attaching, withholding or stopping payments due and payable to the plaintiff under various other works executed, under execution or which may be executed in future on behalf of the defendants or any other authority or departments of defendants in lieu of or as lien, charge of any amount allegedly claimed to be due and payable by plaintiff under the contract in dispute. 4. Case of the plaintiff is as follows: The plaintiff is a registered P.W.D. contractor and had submitted his tender for carrying out the work of renovation of the right bank canal of Bandhara of Assonora, in Bicholim Taluka, for the amount of Rs. 17,04,174.50 and had deposited a sum of Rs. 35,590/-as earnest money with the defendants. By letter dated 27/11/1995, the defendant no. 1 informed the plaintiff that his tender has been accepted and he should contact the office of defendant no. 1 for signing the formal agreement and for taking possession of the site and starting the work. The plaintiff immediately contacted the office of the defendant no. 1 but the defendant no.2, in spite of request of the plaintiff, did not show line out of the work and also did not hand over the possession of the site due to which the plaintiff could not start the work. The plaintiff received a letter dated 05/01/1996 from defendant no. 2 requesting him to attend his office on 10/1/1996 for taking the line out of the work allotted and the plaintiff accordingly remained present in the office on that date and was shown the line out of the work but the possession of the site could not be handed over to him. The paddy fields through which the said canal was passing were already cultivated by the cultivators and the water was flowing through the canal. As the only approach to the canal was through the paddy fields, the material could not be taken to the site unless harvesting of the paddy was done. As such the plaintiff could not take and defendant no. 2 could not give the possession of the site and the plaintiff had to wait till paddy was harvested, for taking the possession of the site and commencing the work. The plaintiff had received another letter dated 17/01/1996 from defendant no. As such the plaintiff could not take and defendant no. 2 could not give the possession of the site and the plaintiff had to wait till paddy was harvested, for taking the possession of the site and commencing the work. The plaintiff had received another letter dated 17/01/1996 from defendant no. 2 requesting to start the work immediately and in this letter it was admitted that the site was shown on 10/01/1996. The plaintiff contacted defendant no. 2 and pointed out that paddy fields were cultivated and water was flowing through the canal and defendant no. 2 told him that the letter was issued as the Village Panchayat of Assonora, wants the work to be started immediately. The defendant no. 2 again issued a letter dated 14/02/1996 calling upon the plaintiff to start the work immediately and he again contacted the defendant no. 2 and explained the circumstances at the site and the defendant no. 2 agreed that work could not be started. However, the plaintiff was surprised to receive a show cause notice dated 06/03/1996 issued by defendant no. 1 under clause 3 of the agreement alleging delay and slow progress of the work tendered and calling upon the plaintiff to show cause within 7 days as to why action under clause 3 of the contract should not be taken against the plaintiff. By letter dated 12/03/1996 the plaintiff replied pointing out that the water was flowing through the canal as the paddy fields are under cultivation and as there is no approach road to carry material at the site, the work could not be started. The plaintiff received letter dated 19/03/1996 from the defendant no. 1 informing that the reasons mentioned in letter dated 12/03/1996 are not acceptable. The plaintiff by letter dated 09/04/1996 informed the defendant no. 1 as to why the work could not be started and also pointed that the concerned Junior Engineer gave bed level of the work on 18/03/1996 and the work has been started and was going in full swing. On 13/04/1996, however, the plaintiff received letter dated 04/04/1996 from the defendant no. 1 thereby taking action under clauses 3(a), 3(b) and 3(c) of the contract and unilaterally terminating the said contract between the plaintiff and the defendant no.1 and further informing him that the work already executed by him would be measured on 22/04/1996. On 13/04/1996, however, the plaintiff received letter dated 04/04/1996 from the defendant no. 1 thereby taking action under clauses 3(a), 3(b) and 3(c) of the contract and unilaterally terminating the said contract between the plaintiff and the defendant no.1 and further informing him that the work already executed by him would be measured on 22/04/1996. But no measurements were taken on that date. By letter dated 18/04/1996, the plaintiff represented to the defendant no. 1 that the notice dated 04/04/1996 is totally illegal and bad and continued with the execution of the work after 13/04/1996 and the defendants did not prevent him from doing so. By letter dated 5/3/96, the plaintiff requested the defendant no. 2 to give bed levels for making rubble soling so that P.C.C. work and the laterite work could be started. The defendant no. 2 issued a letter dated 09/05/1996 to the plaintiff directing him to send sample of the materials to quality control for testing purpose and they gave him the bed levels on 03/05/1996. The plaintiff also received a telegram on 23/05/1996 from the defendant no. 2 requesting him to step up the work since monsoon was fast approaching. The plaintiff by letter dated 30/05/1996 explained to the defendant no. 1 the difficulties faced by him in execution of the work. However the plaintiff received letter dated 12/06/1996 from the defendant no. 2 stating that the work awarded to the plaintiff was terminated vide notice dated 04/04/1996 and he was called upon to stop the work immediately. The plaintiff also received another letter dated 17/06/1996 from the defendant no. 1 informing that the work of joint measurements was fixed on 26/06/1996. In the meantime the defendant no. 1 issued a fresh tender notice dated 20/06/1996 inviting fresh tenders for the same work at the estimated cost of Rs. 15,83,597/-with time limit of 480 days for completing the work excluding the monsoons. The letter dated 04/04/1996 of termination of the contract and also the letter dated 12/06/1996 calling upon the plaintiff to stop the work, are illegal and void. The plaintiff is, therefore, entitled for the reliefs claimed. 5. The defendants contested the suit. In their written statement, the defendants have briefly stated as under:- The plaintiff did not attend the office of the defendant no. The plaintiff is, therefore, entitled for the reliefs claimed. 5. The defendants contested the suit. In their written statement, the defendants have briefly stated as under:- The plaintiff did not attend the office of the defendant no. 2 in order to see the line out of the work and the plaintiff was sent a letter on 05/01/1996 calling upon him to attend the office. The site was handed over to the plaintiff on 10/01/1996 and the plaintiff had to carry out the renovation of the old canal but was delaying to start the work and hence a letter dated 28/2/96 was issued to him. It is false that the paddy fields were cultivated and water was flowing through the canal and therefore the plaintiff could not carry out the work. It was the duty of the plaintiff to study the condition prior to quoting. A letter dated 14/2/96 was sent to the plaintiff as he failed to commence the work. The reply dated 12/03/1996 sent by the plaintiff confirms his ignorance in quoting the tender. Since the grounds stated in reply dated 12/03/1996 were not acceptable to the defendants, the termination notice dated 4/4/1996 was issued to the plaintiff. The plaintiff was further allowed to go ahead with the work after 04/04/1996 in order to give him an opportunity to achieve good progress of the work before the monsoon and a telegram was also sent to him on 23/05/1966. There was inordinate delay on the part of the plaintiff to start the work and to achieve the progress on the work in spite of an additional opportunity given to him. It was beyond the capacity of the plaintiff to complete the work allotted to him and therefore he was asked to stop the work on 12/06/1996 and to go for the joint measurement to be taken on 26/06/1996. The plaintiff was solely responsible for the termination of the contract which was done within the clauses of the agreement. The plaintiff was given sufficient opportunity to show progress of the work as per clause 2 of the agreement. As the work was not completed in terms of the contract there was heavy lapse on the part of the plaintiff and the work had to be stopped. The defendants had no other alternative than to invoke clause 3(c ) of the contract. As the work was not completed in terms of the contract there was heavy lapse on the part of the plaintiff and the work had to be stopped. The defendants had no other alternative than to invoke clause 3(c ) of the contract. Since the defendants were paying for the completed contractual work, they had right to ask the plaintiff to submit materials for testing even after the termination of the contract. It is false that by their conduct, the defendants have treated the rescission of the contract as having no legal effect. The plaintiff was present for the measurements at the site on 26/06/1996 but he refused to sign the measurement book. The defendants are not liable to pay any compensation to the plaintiff and they have rightly forfeited the earnest money deposited, under clause 3(c) of the contract. 6. The plaintiff examined himself as PW.1 and produced various documents. He examined four other witnesses, two of whom are agriculturists namely Bhiku Bugde as PW.2 and Vithal Shirodkar as PW.3, one carpenter namely Jamal Mistre as PW.4 and one labourer namely Umesh Beuel as PW.5. The defendants examined their Assistant Engineer namely Pramod Badami as DW.1 and he has produced documents in support of the case of the defendants. 7. Upon consideration of the entire evidence on record, the Trial Judge held that the plaintiff could not prove his case of alleged delay caused by the defendants in showing the line out of the work and in handing over possession of the site and also the case of illegal termination of the contract. The Trial Judge held that in spite of having given ample opportunities to the plaintiff to carry out the work he failed to do so and forced the defendants to terminate the contract. According to the Trail Judge the defendants did not press for recovery of extra amount paid after re-tendering the work. The Trial Judge also concluded that the canal which was to be repaired was an old canal, the structure of which was existing and the same was dried up prior to the commencement of the work by the plaintiff. Consequently, the suit came to be dismissed. The Trial Judge further held that DW.1 has deposed that the plaintiff is entitled to Rs. Consequently, the suit came to be dismissed. The Trial Judge further held that DW.1 has deposed that the plaintiff is entitled to Rs. 18,762/-for his completed work and that the Government is ready to pay to the plaintiff the said amount towards the completed work. The Trial Judge further held that the plaintiff is entitled to receive the said sum of Rs. 18,762/-along with simple interest at the rate of 12% per annum, if not paid within 30 days, from the date of the decree till the date of final payment. Consequently, the suit came to be partly decreed as above. 8. The defendants, being aggrieved with direction to pay to the plaintiff the said sum of Rs. 18,762/-along with interest and for having held that they are not entitled to recover extra amount paid after re-tendering the work, have filed the present appeal. The plaintiff has filed cross-objection challenging the entire judgment and decree. 9. Shri Manish Salkar, learned Government Advocate argued on behalf of the defendants whereas Shri P. Kholkar, learned counsel, argued on behalf of the plaintiff. 10. Learned counsel for the plaintiff, in support of the cross-objection, urged that the contract was illegally terminated. He argued that the delay was on account of the defendants who did not show the line out of the work and also did not take steps for stopping the farmers from cultivating the fields at the site. He pointed out that two farmers have been examined by the plaintiff and they have confirmed that they had cultivated the fields at the relevant time. Learned Shri P. Kholkar, further argued that even after the termination of the contract by the defendants, the plaintiff has done work and he was allowed to do the said work and therefore on account of this subsequent conduct of the defendant, the termination of the contract stood withdrawn. He argued that once the termination notice was withdrawn, the defendants had to give fresh show cause notice to the plaintiff which has not been given. He argued that in terms of clause 2 of the agreement, assessment of the work done by the plaintiff could be done on the expiry of 1/4th of the whole time allowed to execute the work and 1/4th of 480 days is 120 days and that the said period of 120 days was not completed but the contract was terminated. He argued that in terms of clause 2 of the agreement, assessment of the work done by the plaintiff could be done on the expiry of 1/4th of the whole time allowed to execute the work and 1/4th of 480 days is 120 days and that the said period of 120 days was not completed but the contract was terminated. It is the contention of the learned counsel for the plaintiff that by the conduct of the Government, the plaintiff was disabled from executing the work and the Government has committed breach of the essential terms of the contract. He therefore argued that the plaintiff is entitled to the compensation as prayed for. He relied upon the following judgments namely: 1) M/s. A.T. Brij Paul Singh and Bros. V/s. State of Gujarat ( AIR 1984 SC 1703 ). 2) State of Kerala V/s. K. Bhaskaran ( AIR 1985 Kerala 49) 3) M/s. Hind Construction Contractors V/s. State of Maharashtra [ (1979) 2 SCC 70 ] 4) Dwaraka Das V/s. State of M.P. and another [ (1999) 3 SCC 500 ] 5) Hari Shankar Rastogi vs Sham Manohar & Ors [ (2005) 3 SCC 761 ] 11. Per contra, Shri M. Salkar, learned Government Advocate for the defendants, in support of the appeal, contended that in terms of the contract it was the duty of the plaintiff to take possession of the site within 15 days from the receipt of work order which the plaintiff did not do. He pointed out that thereafter letter dated 05/01/1996 (Exhibit PW.1/D) was sent to the plaintiff calling upon him to visit the office of the defendants. He further pointed out that a second letter dated 17/01/1996 (Exhibit PW.1/E) was sent by the defendant no. 2 calling upon the plaintiff to start the work immediately. He also showed another letter dated 14/02/1996 (Exhibit PW.1/F) send to the plaintiff calling upon him to start the work immediately. Shri Salkar argued that after all that the show cause notice dated 06/03/1996 which is at Exhibit PW.1/G was sent to the plaintiff calling upon him to show cause why the action should not be taken for breach of contract and only there after the termination notice dated 04/04/1996 (Exhibit PW.1/K) was issued to the plaintiff after considering his reply dated 12/03/1996 (Exhibit PW.1/H). Learned counsel for the defendants, therefore, argued that the termination was proper and legal. Learned counsel for the defendants, therefore, argued that the termination was proper and legal. He further argued that continuation of the work by the plaintiff after the termination of the contract was at his own risk and that cannot revive the contract which had been terminated. He argued that the termination of the contract was within the clauses of the contract. Learned Government Advocate pointed out that in terms of the clause 3(c) of the agreement, the defendants are entitled to recover the extra amount that has been paid after re-tendering the same work. He argued that the learned Trial Judge could not have relied upon the concession made by the advocate for the defendants since the said advocate was not authorized to make such concession. He therefore urged that the appeal filed by the defendants ought to be allowed whereas the cross-objection filed by the plaintiff should be dismissed. 12. I have gone through the entire material on record. 13. A perusal of the impugned judgment reveals that all the points which have been raised by the plaintiff in the cross-objection and by the defendants in their appeal and canvassed before this court by the learned counsel for the parties, were also raised before the learned Trial Judge and they have been fully and properly dealt with. When the appellate court agrees with the view of the trial court on evidence it need not restate effect of evidence or re-iterate reasons given by trial court. Expression of general agreement with reasons given by lower court would ordinarily suffice. (See “Girijanandini Vs Bijendra, AIR 1967 SC 1124 ). 14. The first question to be determined is whether the contract has been illegally terminated by the defendants. 15. The work order (Exhibit PW.1/C) was issued to the plaintiff on 27/11/1995 and it was the condition of the contract that time allowed for the work from the 15th day after the date of written order to commence was 480 days including monsoon period from 1st June to 30th September. Thus, as stated by DW1 it was mandatory on the part of the plaintiff to take possession of the site within 15 days from the date of receipt of the work order, so as to start the work as per the contract. Thus, as stated by DW1 it was mandatory on the part of the plaintiff to take possession of the site within 15 days from the date of receipt of the work order, so as to start the work as per the contract. It is seen from the records that plaintiff did not bother to take possession of the site and therefore letter 05/01/1996 (Exhibit PW.1/D) was sent to him calling upon him to visit the office on 10/1/1996, for taking the line out of the work. It is seen from the records that plaintiff went to the office of the defendant no. 2 on 10/01/1996 and was shown the site on the same day. PW.1, the plaintiff himself, has stated that he subsequently received the letter dated 17/01/1996 (Exhibit PW.1/E) calling upon him to start the work immediately. In this letter it was mentioned that the site was shown to him on 10/01/1996. The plaintiff himself has produced another letter dated 14/02/1996 received by him from the defendant no. 2 which is at Exhibit PW.1/F by which also he was called upon to start the work immediately. The records reveal that it is only after this, as argued by the learned Government Advocate, that the show cause notice dated 06/03/1996 (Exhibit PW.1/G) was issued to the plaintiff informing him that progress of the work was very slow and calling upon him to show cause as to why action should not be taken for breach of the contract. It is for the first time on 12/03/1996 by way of reply (Exhibit PW.1/H), to the said show cause notice, that the plaintiff disclosed that paddy field was cultivated and water was flowing through the canal and that there was no approach road and that site was not made available for him to work and that he will start the work by 18/03/1996. Thus, the delay is apparently caused by the plaintiff himself. If really the paddy field was cultivated and water was flowing through the canal on 12/3/1996, then the question arises as to how the plaintiff could have started the work by 18/3/1996. This question has not been answered by the plaintiff. The plaintiff, otherwise, has failed to prove that the paddy field was cultivated during the relevant period and that the water was flowing through the canal. This question has not been answered by the plaintiff. The plaintiff, otherwise, has failed to prove that the paddy field was cultivated during the relevant period and that the water was flowing through the canal. The evidence of PW.2 and PW.3 is not at all sufficient to prove that the paddy field was cultivated for the Vaingan crop during the relevant period. The evidence of PW.2 and PW.3, as has been rightly held by the learned Trial Judge, is totally not reliable. The defendant no. 1, thereafter, by letter dated 19/03/1996 (Exhibit PW.1/I) rejected the said contention of the plaintiff, and rightly so. It is only thereafter that the termination notice dated 04/04/1996 (Exhibit PW.1/K) came to be issued to the plaintiff. In his cross-examination, PW.1, the plaintiff has admitted that he has not done any correspondence with the defendants from 27/11/1995 till 05/01/1996 and that the first letter he wrote to the defendants was only on 12/03/1996. Considering the said correspondence between the plaintiff and defendants no. 1 and 2 between 05/01/1996 and 04/04/1996, it can certainly be said that there was delay on the part of the plaintiff in commencing the work and that there was no error on the part of the defendants in terminating the contract. In the contract admittedly there was no condition that the defendants should provide the approach route for carrying out the tendered work. PW.1 has himself admitted about this fact and has also admitted that once he had taken the contract and signed the terms and conditions under Exhibit PW.1/A, the duty to carry out the work was solely on the plaintiff. PW.1 has himself admitted about this fact and has also admitted that once he had taken the contract and signed the terms and conditions under Exhibit PW.1/A, the duty to carry out the work was solely on the plaintiff. Clause 3(i) of the contract provides as under: “The Engineer-in-charge may without prejudice to his right against the contractor in respect of any delay or inferior workmanship or otherwise or to claims for damage in respect of any breaches of the contract and without prejudice to any rights or remedies under any of the provisions of this contract or otherwise and whether the date for completion has or has not elapsed by notice in writing, absolutely determine the contract in any of the following cases: (i) If the contractor having been given by Engineer-in-charge a notice in writing to rectify, reconstruct or replace any defective work or that the work is being performed in any inefficient or otherwise improper or unworkmanlike manner shall omit to comply with requirements of such notice for a period of seven days thereafter or if the contractor shall delay or suspend the execution of the work so that either in the judgment of the Engineer-incharge (which shall be final and binding) he will be unable to secure completion of the work by the date for completion or he has already failed to complete the work by that date”. 16. Therefore, in terms of the above quoted clause no. 3(i) of the agreement, the Executive Engineer had powers to rescind the contract if there is delay in execution of the work by the contractor and if in his judgment the contractor will be unable to secure completion of the work. The Executive Engineer need not wait for completion of the prescribed period to complete the work. The contract has been rightly terminated. 17. The next question which arises for determination is whether on account of the conduct of the defendants in allowing the plaintiff to continue with the work, after the termination notice, the termination should be deemed to have been withdrawn. 18. In my view, the work done by the plaintiff, after the receipt of the termination notice, was at his own risk. Merely because he continued with the work, it cannot be considered that the contract was restored back. 18. In my view, the work done by the plaintiff, after the receipt of the termination notice, was at his own risk. Merely because he continued with the work, it cannot be considered that the contract was restored back. After receipt of the said written termination notice dated 04/04/1996 (Exhibit PW.1/K), the plaintiff did not write to the defendants for revocation of the termination notice and for restoration of the contract nor there is letter from the defendant thereby recalling the letter dated 04/04/1996. The letter dated 9/4/96 (Exhibit PW.1/J) was admittedly sent by the plaintiff before receipt of the termination letter and in reply to the letter dated 19/3/96 (Exhibit PW.1/I) sent by the defendant no. 1 to him. The termination letter dated 4/4/96 was received by the plaintiff on 13/4/96. DW.1 has stated in his cross-examination that the contract came to an end on the day mentioned in the termination notice and that there was no decision taken to allow the plaintiff to continue the work after 14/04/1996. DW.1 has stated that the termination notice was received by him only on 16/04/1996 at Bicholim office and he was holding charge of the office and was visiting Bicholim office only once in a week. DW.1 has stated that he came across the said termination notice only on 23/04/1996 and therefore the work of the plaintiff continued. DW.1 has stated that immediately after coming to know about the notice he instructed the Junior Engineer Mr. D. A. Pratavali, to see the work of the plaintiff and to stop the same. DW.1 has stated that on 12/06/1996 the Junior Engineer had gone to the site and physically stopped the work since the plaintiff was not stopping the same on his own inspite of his knowledge of the termination notice. Thus, it can be certainly said that the plaintiff continued with the work clandestinely, without permission of the department. It is true that between 04/04/1996 and 12/06/1996, the department by sending telegrams asked the plaintiff to carry out the quality control check of the materials kept at the site for using in the canal. By these telegrams, the plaintiff was called upon to step up progress of the work in view of the monsoon as the progress of the work was very slow. By these telegrams, the plaintiff was called upon to step up progress of the work in view of the monsoon as the progress of the work was very slow. The above act of the defendants may entitle the plaintiff to get payment of the work already carried out by him, but cannot amount to revocation of the termination letter. 19. As per clause 2 of the contract, the plaintiff was bound to complete 1/8th of the whole of work before 1/4th of the whole time allowed under the contract has elapsed; 3/8th of the work before 1 ½ of such time has elapsed; and 3/4th of the work before 3/4th of such time has elapsed. Since the time is considered to have started from 11/12/1996, it is the contention of learned advocate for the plaintiff that 1/4th of the period would expire on 11/04/1996 and the contract could not have been terminated before that date. However, as per the said clause no. 2, the plaintiff had to complete at least 1/8th of the whole of the work before 1/4th of the whole time allowed under the contract and since the plaintiff was allowed 480 days to complete the work, 1/4th period amounts to 120 days. Since the work had to be started from 11/12/1995, the plaintiff had to complete at least 1/8th of the work by 11/04/1996 which, admittedly, has not been done by the plaintiff. Besides the above, in terms of clause 3 of the agreement, the Executive Engineer need not wait for completion of the prescribed period, if in his judgment, the plaintiff would be unable to secure completion of the work by the date for completion. 20. Once it is held that the termination of the contract is proper, the question of granting any compensation to the plaintiff does not arise. Since there was breach of contract, on the part of the plaintiff, which resulted into rescission of the contract, the defendants have right to forfeit the earnest money, in terms of the contract. 21. It was the case of the plaintiff that till 12/6/96, he had executed the work of the value of Rs. 50.000/-. In this regard, except his own testimony, there is no corroborating oral or documentary evidence produced by the plaintiff. On the contrary, DW.1 has stated that after the plaintiff was asked to stop work, joint measurements were taken on 26/6/96. 50.000/-. In this regard, except his own testimony, there is no corroborating oral or documentary evidence produced by the plaintiff. On the contrary, DW.1 has stated that after the plaintiff was asked to stop work, joint measurements were taken on 26/6/96. According to the plaintiff, he had remained present for these joint measurements, but he refused to sign those measurements as they were taken down on loose sheet of paper. According to DW.1, as per the said measurements, the work done by the plaintiff was valued at Rs. 18,762/-and that the measurements were recorded in the measurement book. DW.1 says that the plaintiff was absent on that day. DW.1 has stated that the said measurement value was communicated to the plaintiff. The plaintiff filed the suit on 12/4/1999. He did not write any letter to the defendants objecting to the joint measurements taken on 26/6/96 and the value of the work arrived at. Therefore, it has been rightly held by the trial judge that the value of the work done by the plaintiff was Rs. 18,762/-. DW.1, in clear terms, has deposed that the Government is ready to pay to the plaintiff for the said work completed and that the plaintiff is entitled for Rs. 18,762/-. The Decree in favour of the plaintiff in the said sum of Rs. 18,762/-along with simple interest at the rate of 12% per annum as awarded by the trial judge is just and proper and cannot be faulted. 22. In so far as the contention of the learned Government Advocate that the Government Advocate appearing for the defendants before the Trial Judge had no authority to concede that the defendants are not pressing for the claim of extra amount spent on re-tendered work, is concerned, the same is without any legal basis. Once an advocate is appointed by the defendants by a document in writing, to appear on their behalf and to conduct the case, whatever he does, bonafidely, is on behalf of the defendants and therefore when the said learned advocate made a statement that the defendants are not pressing for any recovery of the extra amount paid on re-tendering the work, the same is binding on the defendants and the question of the Trial Court still holding that the defendants are entitled to invoke clause 3(c) of the agreement and recover the extra amount paid after re-tendering, would not arise. In any case, the defendants have not filed any counter-claim along with their Written Statement. 23. In view of the what has been held above, there is no need to discuss the citations relied upon by Shri Kholkar, learned Counsel appearing for the plaintiff, as the same are relied upon to support the contentions either about the question whether time is essence of the contract or regarding entitlement to and quantum of compensation. 24. The impugned judgment and order, therefore, is in accordance with the settled principles of law and is based on the correct appreciation of the entire evidence on record. No interference with the same is called for. 25. Hence I pass the following order: a) The appeal as well as cross-objection are dismissed. b) Parties to bear their own costs.