JUDGMENT K. SREEDHAR RAO, J.—These two Regular First Appeals are filed challenging the common Judgment dated 21.2.2005 passed in O.S. Nos. 34/1983 and 35/1983 by the Civil Judge [Sr. Dn.] at Sagar, decreeing the suit filed by the plaintiff and directing the defendants to pay to the plaintiff a sum of Rs. 1,42,000/- in O.S. No. 34/1983 and a sum of Rs. 75,000/- in O.S. No. 35/1983, in all a sum of Rs. 2,17,000/-with interest at the rate of 10% p.a. from the date of suit till the date of realisation. 2. The brief facts of the case in O.S. No. 34/1983 are as follows: The plaintiff being a licensed P.W.D. Contractor submitted his tender. The same was accepted by the defendants and issued a work order bearing No. APMC/1167/10/PRJ/78-79 dated 13.10.1978 to the plaintiff. Though, estimate amount of the contract for the full work was Rs. 6,58,000/-, the work portion entrusted to the plaintiff was only to an extent of Rs. 4,33,466/-. The plaintiff furnished Rs. 11,000/- Bank Guarantee. As per contract work had to start on 19.10.1978 and to be completed on or before 19.10.1979. Though the tender notification and work order stipulated that the time is the essence of the contract, the defendants did not supply the cement and steel as and when it was necessary for the progress of the work. Further, pending bills in respect of the work turned out by the plaintiff was not paid to him, soil testing report was un-necessarily delayed, design work of the building was not delivered to the plaintiff in time. In spite of repeated requests, the defendants did not heed his requests. Plaintiff collected the materials nearly Rs. 54,000/- worth of jelly, bricks and centering materials etc, at the spot. Plaintiff borrowed money from South Indian Bank and he un-necessarily paid the interest of Rs. 50,000/-If defendants supplied the cement and steel in time, the work could have been completed in time and he would have got net profit of Rs. 45,000/-, i.e., 10% of the quantum of work. The plaintiff wrote a letter to the defendants repeatedly and finally issued Lawyer’s notice to make all sorts of efforts to perform his work. He was ever ready to complete the work. The reasons for non-completing the contract work is due to defendants’ non-supplying of cement and steel. Defendants have terminated the contract and put the plaintiff in trouble. The plaintiff wrote a letter to the defendants repeatedly and finally issued Lawyer’s notice to make all sorts of efforts to perform his work. He was ever ready to complete the work. The reasons for non-completing the contract work is due to defendants’ non-supplying of cement and steel. Defendants have terminated the contract and put the plaintiff in trouble. On the date of cancellation of the contract, there was a stock of building materials worth of Rs. 54,000/-. The defendants are bound to pay a sum of Rs. 2,75,000/-to the plaintiff. However, the plaintiff has restricted his claim for Rs. 1,50,000/- out of Rs. 2,75,000/-. Hence, the plaintiff has filed the suit. 3. In pursuance of service of summons, defendants appeared through their Counsel. 2nd defendant has filed the written-statement and defendant No. 1 filed the memo stating that he adopts the same. 4. The written statement filed by the 2nd defendant is as under: Defendants admitted the tender accepted by them. But denied that the defendants did not supply the cement and materials as and when necessary. Plaintiff un-necessarily made delay in completion of work within time without reasons. Defendants admitted to cancel the contract. Plaintiff is not entitled for a sum of Rs. 2,70,000/- as claimed in the plaint. There is no cause of auction for the suit. Plaintiff is not entitled for Rs. 11,000/- alleged to have been paid by him towards E.M.D. by way of Bank guarantee. The plaintiff carried on work portion for value of Rs. 1,55,344.75 ps. as on the date of cancellation of contract. On that day, he had already paid Rs. 1,72,413.15. Hence, the plaintiff is due to the defendants for a sum of Rs. 17,058.40. The claim of Rs. 75,000/- towards cost of teak-wood and Rs. 5,000/-towards cost of tools alleged to have been stored by him are false. There were occasional short falls in the supply of cement and steel from the authorities, as the said materials became scarcity and controlled articles after contract was entered into. In spite of the same, the defendants made all possible efforts to get the cement from various sources, so that at no time un-necessary or un-reasonable delay was caused in the progress of the work. The defendant was performing his part of contract without unreasonable delay towards payment of bills. In spite of the same, the defendants made all possible efforts to get the cement from various sources, so that at no time un-necessary or un-reasonable delay was caused in the progress of the work. The defendant was performing his part of contract without unreasonable delay towards payment of bills. On the part of plaintiff, the construction work progressed slowly till November-December 1979 and since then, there was a complete stoppage of the construction work due to the negligence of the plaintiff. The balance portion of the construction was got executed by the defendants at the cost of Rs. 5,87,202.57 by investing tenders on item rates through a 3rd party on 16.02.1981. On account of this, the defendant has incurred an excess of Rs. 2,58,375.70 Ps. for the balance work portion to be completed. This expenditure is nothing but a loss incurred by this defendant on account of breach of contract committed by the plaintiff. In addition to that, the plaintiff is liable to pay Rs. 15,308.31 towards the excess steel taken by him and a sum of Rs. 7,819.69 towards excess cement taken by him. Thus, by way of counter claim, this defendant is entitled to claim amounts in all, Rs. 2,69,353.79. Hence, prays for dismissal of the suit and praying for decree the counter claim amount. 5. Thereafter the plaintiff has filed re-joinder and reply statement denying the allegations made by the defendant in the written-statement. 6. On the basis of above pleadings, the trial Court had framed the following issues: Issues (i) Whether the plaintiff proves that though the suit contract stipulated “the time is the essence of the contract in fact it was not so? (ii) Whether the plaintiff proves that he could not complete the suit contract work within the stipulated time for the non-supply of steel, cement and nonpayment of pending bills as per the terms of the contract? (iii) Whether the plaintiff proves that he had turned out more than 50% of the suit contract work? (iv) Whether the plaintiff proves that he was ready and willing to perform his part of the contract and that cancellation of the contract by defendants in not proper and legal? (v) Whether the plaintiff proves that on the date of the cancellation of the contract there was a stock of building materials worth Rs. (iv) Whether the plaintiff proves that he was ready and willing to perform his part of the contract and that cancellation of the contract by defendants in not proper and legal? (v) Whether the plaintiff proves that on the date of the cancellation of the contract there was a stock of building materials worth Rs. 54,000/- at the work spot and that the defendants have taken possession of the same? (vi) Whether the plaintiff proves that he is entitled to claim Rs. 2,70,000/- from the defendants under the various heads as detailed in para-13 of the plaint and that he is entitled to a decree as claimed in the said para? (vii) Whether the defendants prove that the cancellation of the suit contract is proper and legal? (viii) Whether defendants prove that the total value of the work portion completed by plaintiff as on the date of the cancellation of the contract of Rs. 1,55,354.75 Ps. including his percentage? (ix) Whether the defendants prove that the value of the work portion amounting to Rs. 1,55,354.75 Ps. includes the value of non-tendered items of work also? (x) Whether the defendants prove that the value of the materials on the date of the final measurement was worth Rs. 12,149,83 Ps. only? (xi) Whether the defendants prove that they have performed their part of the contract and were ever ready and willing to perform the same? (xii) Whether the defendants prove that the balance work portion of the suit contract was got executed by them at a cost of Rs. 5,87,202.57 Ps. through a third party and that on account of the same, they had to incur excess expenditure to the tune of Rs. 2,58,375.70 Ps.? (xiii) Whether the defendants prove that they are entitled to a decree for counter claim of Rs. 2,69,353.79 as detailed in para 14 of their written statement? (xiv) Whether the suit is barred by time? (xv) Whether the suit notice issued by plaintiff is not correct and proper? (xvi) Whether the defendants prove that the suit is not maintainable and that this Court has no jurisdiction to try the suit as contended in para-18 of their Written-Statement? (xvii) To what order or relief the parties are entitled? (xviii) What Order of Decree? 7. (xv) Whether the suit notice issued by plaintiff is not correct and proper? (xvi) Whether the defendants prove that the suit is not maintainable and that this Court has no jurisdiction to try the suit as contended in para-18 of their Written-Statement? (xvii) To what order or relief the parties are entitled? (xviii) What Order of Decree? 7. The brief facts of the case in O.S. No. 35/1983 are as follows: That the tender submitted by the plaintiff is accepted by the defendants and work order issued vide work order No. APMC/3602/9/PRJ/78-79 dated 11/18.05.1979 and the work portion entrusted to the plaintiff was to the extent of Rs. 3,10,200/- for construction of Office building and godown in favour of Taluk Agricultural Produce Marketing Co-operative Society Ltd., Sagar. The plaintiff furnished a bank guarantee for a sum of Rs. 8,000/- being 2.05% E.M.D. for the said work. As per the contract, the work has to start on 18.07.1975 and to be completed on or before 31.12.1979. After marking was made by the defendants, the digging of the foundation work was started. Design of wood work was not given to the plaintiff well in time inspite of requests made by him. Defendants have not supplied the materials as required. Even then, plaintiff collected the materials at the work spot and showed progress by turning out the work to the tune of more than 50%. He has collected the materials worth of Rs. 23,000/- on the spot. Defendants did not supply cement, steel etc. within time. The bills regarding the work turned out by him were not paid in time. Therefore, within the stipulated time work would not be completed. The plaintiff had borrowed money from the bank and paid interest more than Rs. 20,000/- due to the delay by the defendants. If plaintiff had completed the work in time, he would have made 10% profit, i.e., Rs. 31,000/- and, therefore, he suffered loss of Rs. 31,000/- towards profit. Plaintiff purchased the wood worth of Rs. 20,000/- in Forest auction for the purpose of contract work and he paid Rs. 8,000/- for Forest Department being 1/3rd amount of cost of wood. Defendants delayed the payment of the pending bills and, therefore, the plaintiff was unable to pay balance amount to the Forest Department and, therefore, the Forest Department forfeited the initial deposit of Rs. 8,000/-. 20,000/- in Forest auction for the purpose of contract work and he paid Rs. 8,000/- for Forest Department being 1/3rd amount of cost of wood. Defendants delayed the payment of the pending bills and, therefore, the plaintiff was unable to pay balance amount to the Forest Department and, therefore, the Forest Department forfeited the initial deposit of Rs. 8,000/-. On the date of cancellation of contract work, the building materials worth Rs. 23,000/- was stocked by the plaintiff. Defendant entrusted the balance work to the 3rd party in the year 1982 and taken possession of building materials belonging to the plaintiff, so, the plaintiff has suffered loss of Rs. 1,50,100/-. However, he has restricted his claim for Rs. 75,000/-. Hence, he has filed the suit. 8. Defendants appeared through their Counsel. The 2nd defendant has filed his written-statement. Defendant No. 1 has filed memo stating that he adopts the same. 9. The written-statement filed by the 2nd defendant is as follows: Defendant agreed the tender accepted and the work had to complete on or before 31.12.1979. He contended that the plaintiff has not completed the work within the time as per contract without genuine ground. Hence, he terminated the contract and that on the cancellation of contract, there was a stock of building materials worth Rs. 23,000/- on the spot is denied. Further, denied that the plaintiff purchased the timber worth of Rs. 20,000/- and paid Rs. 8,000/- as advance and the same was forfeited by the Forest department. The total value of work portion carried by plaintiff is only Rs. 1,12,864.33. The plaintiff has received the amount in excess of above said amount and he is due for a sum or Rs. 2,678.50. Hence, plaintiff is not entitled to the claim of Rs. 8,000/-towards cost of wood and Rs. 7,000/- by way of security deposit. Balance portion of construction was got executed by the defendants at the cost of Rs. 5,34,293.53 by inviting the tenders by 3rd party and the defendant had to incur the expenses of Rs. 2,59,657.86 for the balance work portion to be completed. On account of breach of contract-work completed by the plaintiff in addition to the said amount, he is liable to pay a sum of Rs. 1,108.59 towards cost of excess steel taken by him. Thus, by way of counter claim, this defendant is entitled to claim a sum of Rs. 2,63,444.95 ps. On account of breach of contract-work completed by the plaintiff in addition to the said amount, he is liable to pay a sum of Rs. 1,108.59 towards cost of excess steel taken by him. Thus, by way of counter claim, this defendant is entitled to claim a sum of Rs. 2,63,444.95 ps. Hence, prays for dismissal of the suit and praying for decreeing the counter-claim.” 10. On the basis of above pleadings, the trial Court had framed the following issues: Issues: (i) Whether the plaintiff proves that though the suit contract stipulates “the time is the essence of the contract” in fact it was not so? (ii) Whether the plaintiff proves that he could not complete the suit contract work within the stipulated time for the non supply of steel, cement and non payment of pending bills as per the terms of the contract? (iii) Whether the plaintiff proves that he had turned out more than 50% of the suit contract work? (iv) Whether the plaintiff proves that he was ready and willing to perform his part of the contract and that cancellation of the contract by defendants is not proper and legal? (v) Whether the plaintiff proves that on the date of cancellation of the contract, there was a stock of building materials worth Rs. 23,000/- on the work spot and that the defendants have taken possession of the same? (vi) Whether the plaintiff proves the he is entitled to claim Rs. 1,57,100/- from the defendants under the various heads as detailed in para-22 of the plaint and that he is entitled to a decree as claimed in the said para? (vii) Whether the defendants prove that the cancellation of the suit contract is proper and legal? (viii) Whether the defendants prove that the total value of the work portion completed by the plaintiff as on the date of cancellation of the contract is Rs. 1,12,864.33 including his percentage? (ix) Whether the defendants prove that they have performed their part of the contract and were ever willing to perform the same? (x) Whether the defendants prove that the balance work portion of the suit contract was got executed by them at a cost of Rs. 5,34,293.53 Ps. through a third party and that on account of the same, they had to incur excess expenditure to the tune of Rs. 2,59,657.86Ps.? (x) Whether the defendants prove that the balance work portion of the suit contract was got executed by them at a cost of Rs. 5,34,293.53 Ps. through a third party and that on account of the same, they had to incur excess expenditure to the tune of Rs. 2,59,657.86Ps.? (xi) Whether the defendants prove that they are entitled to a decree for counter claim of Rs. 2,63,444.95 Ps. as detailed in para-13 of their written statement? (xii) Whether the suit is barred by time? (xiii) Whether the suit notice issued by plaintiff is not correct and proper? (xiv) Whether the defendants prove that the suit is not maintainable and that this Hon’ble Court has no jurisdiction to try the suit as contended in para-18 of their written-statement? (xv) To what order or relief, the parties are entitled to? (xvi) What order or Decree? 11. To prove the case, plaintiff himself examined as PW.1 and got marked the documents Exs.P1 to P64. Defendants have examined DWs.1 to 7 and got marked the documents Exs.D1 to D94. 12. Considering the above evidence on record by Judgment dated 7.6.1991, the trial Court had dismissed both the suits of the plaintiff and also the counter claim of the defendants. Both the parties had approached this Court in RFA No. 118/1992 and connected appeals and by Judgment dated 16.4.1999, this Court had allowed the said appeals and the matters were remitted back to the trial Court with a direction to calculate the work done by the plaintiff and work out the figures for payment to the plaintiff. Thereafter, the plaintiff was further examined in his residence by appointing an Advocate Commissioner and after hearing, the trial Court passed the impugned Judgment, which the defendant challenges in these two separate appeals. 13. Heard Sri B.G. Sridharan, learned Senior Counsel and Sri A.C. Balaraj, learned Counsel for the appellant and Sri B.N. Shetty, learned Counsel for respondent No. 1(a to c). 14. Learned Counsel for the appellant submits that the trial Court has erred in holding that the time was not the essence of the contract, though the agreement contained a stipulation that the work should be completed within the stipulated time. 14. Learned Counsel for the appellant submits that the trial Court has erred in holding that the time was not the essence of the contract, though the agreement contained a stipulation that the work should be completed within the stipulated time. The defendant has adduced evidence both oral and documentary to clearly establish that the defendants at no point of time either expressly or through their conduct gave up the requirement of completing the contract within the stipulated time. The evidence of DW.1-Assistant Engineer and DW.7-Secretary of APMC., has not been clearly appreciated by the trial Court with reference to Sections 51 to 55 of the Indian Contract Act and hence, gross injustice has been done to the defendant. It is further submitted that, the finding of the trial Court that there was a delay in supply of Steel and Cement to the plaintiff/contractor and also payment of the contractor’s pending bills by the defendant is grossly erroneous since the defendant has established that he was ready and willing to perform his part of the contract and the delay is occurred only due to the non-performance of the obligations under the Contract by the plaintiff himself. It is submitted that the trial Court has grossly misread the oral evidence of PW.1. 15. Learned Counsel for the respondents on the other hand submits that the trial Court has rightly evaluated the evidence on record and has come to the conclusion that though it was mentioned in the agreement that the work has to be completed within a stipulated time, the time was not an essence of the contract. He has submitted that due to the non supply of cement and steel, the plaintiff could not complete the work and, therefore, what has been actually claimed by the plaintiff is nothing but the payment due to him for the work actually done by him. The plaintiff has submitted memo of calculations, which have been incorporated by the trial Court in para-28 of its Judgment. The trial Court has observed that the estimated quantity of work has been furnished in the said memos and the work done by the plaintiff is deducted from the estimate, the actual amount payable to the plaintiff could be arrived at and the trial Court has rightly calculated the same in para-29 of its Judgment. The trial Court has observed that the estimated quantity of work has been furnished in the said memos and the work done by the plaintiff is deducted from the estimate, the actual amount payable to the plaintiff could be arrived at and the trial Court has rightly calculated the same in para-29 of its Judgment. It is submitted by him that neither any factual error nor any error of law has been committed by the trial Court and hence the said Judgment of the trial Court is not liable to be interfered with and prays for dismissal of the appeal. 16. In view of the above submissions of both the Counsel, the points for consideration in this appeal are: (i) Whether the time was the essence of the contract between the plaintiff and the defendants? (ii) Whether the plaintiff has proved that the defendants have not supplied the cement and steel in time and had not made the payment of bills as per the terms of the contract to the plaintiff? (iii) Whether the Judgment of the trial Court in allowing the suits of the plaintiff for Rs. 1,42,000/- and Rs. 75,000/-respectively is just and proper or requires interference in this appeal? 17. Our finding to the above points are: (i) In the negative; (ii) In the affirmative; and (iii) Judgment of trial Court is upheld. Appeal is dismissed for the following reasons: 18. The plaintiff has examined himself as PW.1. There is no dispute that the tender of the plaintiff for construction of APSCOS and TAPCMS, Sagar was accepted by the defendants and for construction of building involved in O.S. No. 34/1983 work order was issued on 13.10.1978 and it had to be completed on or before 31.12.1979 and the value of the contract work was Rs. 4,33,466/-. In O.S. No. 35/1983, work order was issued to the plaintiff on 11/18.5.1979 for Rs. 3,10,200/- and the work had to be completed within 31.12.1979. Though it was mentioned that the period for completion of work was as above, the time was not the essence of the contract. In the evidence of the plaintiff, it has been clearly stated that the defendants were irregular with reference to supply of cement and steel as a result of which the work got delayed and the same could not be completed within the stipulated period. In the evidence of the plaintiff, it has been clearly stated that the defendants were irregular with reference to supply of cement and steel as a result of which the work got delayed and the same could not be completed within the stipulated period. In his evidence he has stated that he has participated in the timber auction, collected the sand, jelly, wood and bricks worth more than Rs. 54,000/- and Rs. 23,000/- at the work yard. However, he has stated that the said materials were kept idle for months for want of supply of cement and steel. DW.1-Ramanna, the Assistant Engineer has admitted in his evidence that the plaintiff showed good progress when he was supplied cement and steel in the beginning and that subsequently he has not shown his readiness and willingness to perform his contract and has been negligent as a result of which the contract was cancelled. However, the documents produced by the plaintiff namely., Exs.P10, 14, 18, 23, 53 and 54 indicate that the plaintiff has requested for supply of cement and steel. Though there is reply given by the defendants which are also marked as documents, there is necessarily a correspondence regarding supply of cement and steel. Under the circumstances, the trial Court has come to the conclusion that the defendants have not supplied the cement in time as and when demanded by the plaintiff. The trial Court has further observed that there was cold war between the parties and as a result of such bickering between them, the work got delayed. The trial Court has, therefore, found fault with the defendants themselves and hence, has answered the question as to whether the time was not the essence of the contract, in the affirmative. We concur with the finding of the trial Court and hold that time was not the essence of the contract in this case. 19. It is observed by the correspondence made between the plaintiff and defendants that the amount claimed by the plaintiff for the work done by him was delayed by the defendants and the plaintiff has in fact stated before the Court that he has used his own money to purchase materials like sand, jelly, wood, bricks and centering materials. 19. It is observed by the correspondence made between the plaintiff and defendants that the amount claimed by the plaintiff for the work done by him was delayed by the defendants and the plaintiff has in fact stated before the Court that he has used his own money to purchase materials like sand, jelly, wood, bricks and centering materials. It is clear that the defendants were not prompt enough to settle the bills of the plaintiff in time and hence the finding of the trial Court that the plaintiff could not complete his work within the stipulated time also due to the non payment of pending bills, does not call for interference as the same is based on the evidence on record. 20. So far as the issue No. 3 is concerned, from the memo of calculations produced by the plaintiff, it is seen that the plaintiff had completed the work as per the memos and, therefore, the finding of the trial Court on issue No. 3 in both the suits cannot be found fault with. 21. On a careful consideration of the evidence on record, more particularly the documents at Exs.P1 to P64, it can be safely held that the trial Court has followed the directions issued by this Court in the earlier round of litigation namely., the work done by the plaintiff has to be calculated and the quantity of work given under first tender minus the quantity of work extracted from the second contractor had to be calculated, which will lead to the amount of work done by plaintiff. On a thorough scrutiny of the materials and more particularly the memo of calculations, the trial Court in its para-29 of the Judgment, has clearly come to the conclusion that the plaintiff is entitled to the amounts namely., Rs. 1,42,000/- in O.S. No. 34/1983 and Rs. 75,000/- in O.S. No. 35/1983, in all a sum of Rs. 2,17,000/- with interest at the rate of 10% p.a. from the date of suit till realisation. The trial Court has dismissed the counter claim of the defendants in both the suits. 22. After giving our anxious thought to the entire materials on record and after due appreciation of the evidence on record, we find that the Judgment of the trial Court is neither perverse nor against the evidence on record, but it is based on the settled principles of law. 22. After giving our anxious thought to the entire materials on record and after due appreciation of the evidence on record, we find that the Judgment of the trial Court is neither perverse nor against the evidence on record, but it is based on the settled principles of law. We do not find any good ground to interfere with the well considered judgment of the trial Court and hence, these appeals are liable to be dismissed. Accordingly, both the appeals are dismissed.