ORAL JUDGMENT 1. By this appeal under Section 96 of the Code of Civil Procedure, the appellant has challenged the judgment and decree dated 24.09.2003 passed by learned Senior Civil Judge, Valsad in Special Civil Suit No.30 of 1989. 2. The parties described in this judgment are as per their status before the learned trial Court. 3. Short facts which emerge from the record of this appeal are as under: 3.1 The plaintiff-G.I.D.C floated a tender for carrying out the work of E.S.R (water tank) with a capacity of 4.5 lacs liters at the Industrial Estate, Gundlav, Valsad and in response to the tender notice, the defendants also applied for the same and quoted the lowest price of Rs.5,24,000/-. As the price quoted by the defendants was lowest, the plaintiff- G.I.D.C accepted the tender of the defendants. 3.2 Record further indicates that the defendants were given work order and started the work from 31.05.1983 with a stipulated period of 10 months and till 17.02.1986, the defendants carried out the work of Rs.4,84,700/- and raised running bills. 3.3 It is the case of the plaintiff-G.I.D.C that even though the defendants were informed to complete the work, defendants did not complete the work and thereby, committed breach of terms and conditions of the agreement executed between them. 3.4 The facts further reveal that on 07.01.1987, the water tank constructed by the defendants, completely collapsed as inferior quality of the materials were used by the defendants, which were not as per the specifications. It is the case of the plaintiff-G.I.D.C that as the defendants did not complete the work, the defendants were given notice to complete the said work by the notice dated 30.07.1987. However, the said work was not carried out by the defendants. The plaintiff-G.I.D.C, thereafter, informed the defendants that because of such an eventuality the plaintiff had to get the work through other agency viz. M/s.Rajpura Brothers by re- tendering the work. It is therefore, case of the plaintiff that the plaintiff had to incur more expenses of Rs.1,96,950/-. 3.5 Record further indicates that the plaintiff-G.I.D.C thereafter, issued a notice for recovery of Rs.4,84,700/-for the work done, which collapsed as well as the additional amount that the plaintiff-G.I.D.C had to incur. Accordingly, the plaintiff-G.I.D.C filed a suit being Special Civil Suit No.30 of 1989 and prayed for decree of Rs.6,81,650/-along with interest at the rate of 15%. 4. 3.5 Record further indicates that the plaintiff-G.I.D.C thereafter, issued a notice for recovery of Rs.4,84,700/-for the work done, which collapsed as well as the additional amount that the plaintiff-G.I.D.C had to incur. Accordingly, the plaintiff-G.I.D.C filed a suit being Special Civil Suit No.30 of 1989 and prayed for decree of Rs.6,81,650/-along with interest at the rate of 15%. 4. The learned trial Court by the impugned judgment, decreed the suit in favour of the plaintiff-G.I.D.C and passed the following order. “The suit of the plaintiff is hereby decreased. The plaintiff is entitled to recover the suit amount of Rs.6,81,650/-from the defandant with 10 % interest per annum from the date of the suit till realization. All the defendants are jointly and severally liable to pay the decreetal amount with interest to the plaintiff corporation. The defendants are hereby ordered to pay the cost of the suit to the plaintiff corporation and bear their own. Decree be drawn accordingly.” 5. Being aggrieved by the same, the defendants have filed the present appeal. 6. Heard Mr. K.G. Sukhwani, learned counsel for the appellants-original defendants and Mr. M.B. Gandhi, with Mr. C.M. Gandhi, learned counsel for the defendants-original plaintiff-G.I.D.C. 7. Learned counsel for the defendants submitted that the defendants have not purchased any cement from the outside but the cement was supplied by the plaintiff-G.I.D.C and hence, the defendants cannot be held liable for the damage. It was further submitted that the material supplied by the plaintiff-G.I.D.C was of inferior quality, because of which, the water tank constructed by the defendants collapsed without there being any fault of the defendants. 8. Learned counsel for the defendants has pointed out that the amount of Rs.4,84,700/-was paid by way of running bills, which were duly approved by the plaintiff-G.I.D.C and therefore, without going into the reasons that why the water tank collapsed, the plaintiff-G.I.D.C has no right under the law to recover the said amount. 9. It was further contended that the learned trial Court has not appreciated the evidence on record and has not appreciated the vital fact as to why the water tank constructed by the defendants collapsed. Learned Trial Court has not appreciated the evidence on record properly and hence, the present appeal deserves to be allowed and the impugned judgment and decree deserves to be quashed and set aside. 10. Learned Trial Court has not appreciated the evidence on record properly and hence, the present appeal deserves to be allowed and the impugned judgment and decree deserves to be quashed and set aside. 10. Per contra, Mr.Gandhi, learned counsel for the plaintiff-G.I.D.C supported the impugned judgment and decree passed by the learned Trial Court and has submitted that the learned Trial Court has not only properly appreciated the evidence on record but has correctly come to the conclusion that the defendants are responsible for the damage and has rightly passed the impugned judgment and decree. 11. Learned counsel for the plaintiff-G.I.D.C relying upon the observations made by learned Trial Court, contended that on each and every issue, the learned Trial Court has given its finding and it is based on true and correct interpretation of the evidence on record, and therefore, no interference is called for by this Court in its appellate jurisdiction. 12. Learned counsel for the plaintiff-G.I.D.C has further contended that the plaintiff has prayed for 15% interest, however, the learned Trial Court has wrongly given interest at the rate of 10% and therefore, while dismissing the appeal, this Court may award 15% per annum and modify the decree accordingly. No other and further submissions are made by learned counsel for the respective parties. 13. Considering the submissions made by learned counsel for the respective parties and on perusal of the record and proceedings as well as the impugned judgment and decree, it transpires that the tender, which was floated by the plaintiff-G.I.D.C was accepted in favour of the defendants for carrying out the work for construction of E.S.R ( water tank) at the Industrial estate, Gundlav, Valsad. 14. It is found from the impugned judgment and decree that the learned Trial Court has taken into consideration the oral deposition of witness of the plaintiff-G.I.D.C at Exhs:86 and 143. It has also considered the oral evidence of defendant No.1 at Exh:168, the Government Engineer at Exh:218 as well as the store keeper of the plaintiff-G.I.D.C at Exh:261; the Work Register at Exh:147 which has recorded each and every materials and cement supplied by the plaintiff-G.I.D.C to the defendants. 15. Even on perusal of the Test Report at Exh: 147, it is found that at no point of time, the defendants have raised any issue as regards the quality of the cement and/or raw materials. 15. Even on perusal of the Test Report at Exh: 147, it is found that at no point of time, the defendants have raised any issue as regards the quality of the cement and/or raw materials. On the contrary, on perusal of the receipt at Exh: 148 and the Inquiry Report of the Committee at Exh:149, it is found that the cement and materials supplied by the plaintiff- G.I.D.C are as per the tender conditions and are proper in quality. 16. As recorded by the learned Trial Court and as it emerges from the evidence on record, the plaintiff- G.I.D.C has paid total seven running bills amounting to Rs.4,84,700/-. The fact of the receipt of such seven running bills aggregating to Rs.4,84,700/-, clearly bornes out from the deposition of defendant No.1 at Exh:168. The learned Trial Court has also considered the aspect that at no point of time, any objection was raised as regards the quality of the cement supplied by the plaintiff-G.I.D.C and even in the evidence, nothing is brought on record that the cement, which was supplied was of inferior quality and therefore such contention raised by the defendants before the learned Trial Court as well as before this Court in this appeal is nothing but an after thought and mere imagination. 17. Learned counsel for the defendants has not been able to point out anything from the evidence on record to show that the cement and other materials supplied to the defendants were of inferior quality because of which, construction collapsed. 18. On the contrary, on perusal of the Inquiry Report at Exh:149, it is found that the cylindrical column shaft and container were of poor workmanship because of which, construction of E.S.R (water-tank) collapsed. The materials which were supplied to the defendants by the plaintiff-G.I.D.C were supplied after carrying out the test and none of the Test Reports, which are on record indicates that the materials supplied were of inferior quality. On the contrary has rightly recorded by the learned Trial Court, the Inquiry Committee in its report (at Exh:149) has clearly opined that the R.C.C work was of poor quality. 19. On the contrary has rightly recorded by the learned Trial Court, the Inquiry Committee in its report (at Exh:149) has clearly opined that the R.C.C work was of poor quality. 19. Record clearly reveals that because of inaction on the part of the defendants in not carrying out the tender work within time and as the construction collapsed as recorded hereinabove, the plaintiff-G.I.D.C had to re-tender the construction work of E.S.R (water-tank), which was accepted by another agency M/s. Rajpura Brothers at Rs.6,81,650/- and therefore, the plaintiff-G.I.D.C had to incur more expenses to the tune of Rs.1,96,950/-. 20. Even on re-appreciation of the evidence, this Court is of the opinion that the learned Trial Court has committed no error in deciding any of the issues. The learned Trial Court has correctly on basis of true and correct appreciation of the evidence on record held that the defendants were paid total seven running bills amounting to Rs.4,84,700/-and over and above the same, because of re-tendering the tender work, the plaintiff-G.I.D.C had to incur more expenses to the tune of Rs.1,96,950/-to construct the water tank denovo. 21. On re-appreciation of the evidence on record, this Court finds that other issues though not pointed out by the defendants in this appeal including aspect of the limitation, has been correctly appreciated by the learned Trial Court. 22. Considering the conduct of the parties and evidence on record, the learned Trial Court has rightly come to the conclusion that the defendants have committed breach of contract. Even though technical issue such as issue No.4(A) has been rightly answered by the learned Trial Court. 23. This Court finds that in light of the facts and circumstances of the case, the learned Trial Court has committed no error in coming to the conclusion that there was delay in approval of design and the executive engineer having extended time, time was not the essence of the contract. 24. Even while examining the contention raised by the plaintiff-G.I.D.C as regards the interest is concerned, it would be appropriate to refer to the judgment of the Division Bench of this Court in the case of Kothari & Associates Vs. State of Gujarat reported in 2011(5) GLR 4297:- “16. 24. Even while examining the contention raised by the plaintiff-G.I.D.C as regards the interest is concerned, it would be appropriate to refer to the judgment of the Division Bench of this Court in the case of Kothari & Associates Vs. State of Gujarat reported in 2011(5) GLR 4297:- “16. Section 3(1)(b) of the Interest Act, 1978 reads as under: "3(1)(b) If, the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings : Provided that where the amount of the debt or damages has been repaid before the institution of the proceedings interest shall not be allowed under this section for the period after such repayment.” 17. It would be evident from the above provision, that the plaintiff would be entitled to interest from the date on which it is demanded. Mr.Pahwa has relied upon the observations made by this Court rendered in First Appeal No.34 of 1992 dated 30.07.2003, which are as under: “5.14 As regards interest the learned counsel for the plaintiff has submitted that looking to the evidence at Exh.43, para 25 (page 119 of the paper book of the appellant) wherein witness has mentioned that for the ad hoc advance given by the appellant they have charged 15% interest and deducted from the bill. Thus, in fact, the trial court on the basis of the same, should have awarded 15% interest whereas interest awarded is 12% only. The principle of reasonability applied by the Hon'ble Supreme Court in the case of THE MANAGING DIRECTOR, J & K HANDICRAFTS VS. M/S. GOOD LUCK CARPETS reported in AIR 1990 SC 864 which clearly laid down in para 6 as under:- "para 6. This however, does not take away the jurisdiction of the Court to allow interest from the date on which the award is made rule of the Court. In the instant case this date is 28th May, 1987. We are of the opinion that it is a fit case where the respondent may be allowed interest on the amount of rupees 95,997.60 ps. from the said date. In the instant case this date is 28th May, 1987. We are of the opinion that it is a fit case where the respondent may be allowed interest on the amount of rupees 95,997.60 ps. from the said date. Coming to the question of the rate of interest the agreement between the parties contemplates payment of interest to the appellant by the respondent in a certain contingency at the rate of 18% per annum. The said rate, in our opinion, can be taken as a reasonable basis for fixing the rate on which interest is to be awarded to the respondent for the simple reason that even the appellant considered that rate to be reasonable for recovery from the respondent". 5.15 However, the learned counsel for the plaintiff has stated that he supports the finding of the learned trial judge to that extent. The plaintiff has filed Cross Objection before this court in which the plaintiff has stated that the claimed interest from the date of written demand of the suit claim vide letter Exh. 262 wherein interest has been claimed from the due date i.e. 5.3.1982. The plaintiff has claimed interest from due date and even in notice under section 80 which is at Exh.57 wherein also the plaintiff has claimed interest from the due date i.e. from 5.3.1982 and therefore the plaintiff is entitled for interest from the date demanded in the notice and on construing due date, date will be 20.6.1980 when the work was completed. He has relied on the judgement of the Hon'ble Supreme Court in the case of B.V. RADHA KRISHNA VS. SPONGE IRON INDIA LTD. reported in AIR 1997 SC 1324 in which at paragraphs 15, 16 and 17 the Hon'ble Supreme Court has observed as follows: 5.15A "Para 15 -Learned counsel for the appellant also submitted that the High Court went wrong in awarding interest only from 14.6.1984, on the ground that the notice demanding the amount was issued on that date only and, therefore, the appellant was not entitled to any interest prior to that date. According to the learned counsel, Section 3(1)(b) of the Interest Act, 1978, in unequivocal terms specifies that interest would be available from the date mentioned in the demand notice and without noticing that provision the High Court has wrongly given interest from the date of the notice. According to the learned counsel, Section 3(1)(b) of the Interest Act, 1978, in unequivocal terms specifies that interest would be available from the date mentioned in the demand notice and without noticing that provision the High Court has wrongly given interest from the date of the notice. 5.15B Para 16-On the question of interest we think the learned counsel for the appellant is right in placing reliance on Section 3(1)(b) of the Interest Act. The appellant-Company (sic) had issued notice on 14.6.1984, demanding payment of the specified amount and interest on that specified amount at the rate of 21% per annum from 1.4.1983 till payment. Section 3(1)(b) of the Interest Act, 1978, reads as follows: "3. Power of Court to allow interest.-(1) In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the Court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say, - (a) ........ (b) If the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings.” 18. We find that the trial Court, after taking into consideration the totality of circumstances as per the evidence is correct in coming to the conclusion that the plaintiff would be entitled to interest @ 9% i.e. the prevailing bank rate. The claim of the present plaintiff was not for the payment of any unliquidated damages or for the payment of any amount arising out of an inchoate or contingent obligation. It was for the payment of sum which was uncertainable on calculation if made in accordance with the terms of the agreement and, therefore, it was clearly a sum certain within the meaning of the Interest Act. Therefore the trial Court, taking into consideration the vital factor of current bank rate has not committed any error while granting 9% interest. It was for the payment of sum which was uncertainable on calculation if made in accordance with the terms of the agreement and, therefore, it was clearly a sum certain within the meaning of the Interest Act. Therefore the trial Court, taking into consideration the vital factor of current bank rate has not committed any error while granting 9% interest. However, we find that the plaintiff has raised the demand of interest vide notice dated 28.03.1982 and had specifically claimed interest from 19.02.1981 and, therefore, the plaintiff would be entitled to interest @ 9% from the date of such demand.” 25. The ratio laid down in the case of Kothari & Associates (supra) would squarely apply to the present case and hence, the learned Trial Court has rightly awarded 10% interest per annum and the contention raised that it should be increased at the rate of 15% per annum does not deserve in merit. 26. The appeal deserves to be dismissed and is hereby dismissed. Parties to bear their own cost. Record and proceedings be sent back to the learned Trial Court forthwith.