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2016 DIGILAW 1074 (GUJ)

Chairman/Secretary v. Rajesh Builders

2016-06-10

A.S.SUPEHIA, ANANT S.DAVE

body2016
JUDGMENT : A.S. Supehia, J. 1. This appeal is filed under Section 96 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 28.10.2005 passed by learned Principal Senior Civil Judge, Valsad, partly allowing the suit directing the appellants-original defendants to pay Rs. 10,40,902/- to the respondent-original plaintiff with 9% interest from the date of the suit till realization of decretal amount. 2. For the sake of brevity and convenience the parties shall be mentioned as per their original status in the suit. 3. The facts arising out of the present appeal are stated as under: 4. That the plaintiff (respondent herein) had instituted Special Civil Suit No. 65 of 1990 against the original defendants (the present appellants) for recovering an amount of Rs. 38,91,864.36 on 11.06.1990, inter alia, contending that the defendant-Corporation had invited tender for constructing the waste water collection system for Housing-II at Chanod. As the tender of the plaintiff was found competitive and lowest the same was accepted by the defendant-Corporation and accordingly an agreement was executed between the parties and work had commenced from 07.05.1983, which was to be completed within a period of eight months i.e. on or before 06.01.1984. Said work was for a sum of Rs. 15,37,948/-. 5. Due to delay and hurdle created by the defendant-Corporation, the said work could not be completed within the stipulated time period mentioned in the aforesaid agreement and, therefore, the plaintiff had instituted the suit for damages as under: Sr. No. Particulars Amount (Rs.) 1. Difference in rate of Kapchi 853.71 cm @ 70.20/c.m. 59,930=00 2. Due to change in design and performance of vent shaft then that stated in the tender at Schedule ‘B’ 1,07,231=00 3. De-watering due to breakage of water supply lines and collection of the same in the trenches. 8,400=00 4. Excavation of muddy soil from trenches 29,400=00 5. Shoring and strutting of the treacherous soil. 6,16,716=00 6. Refilling of the excavated area due to monsoon and to re-excavate the same. 50,488=00 7. Due to excavation of extra item of work of soft and hard rock the rates as prevailing in year 1987 was claimed. 1,91,824=00 8. Refilling of earth from outside in the trenches. 1,00,639=00 9. Illegal recovery of time limit deposit of Rs.18,315/- and water charges of Rs.11,315/- Total amounting to Rs.29,570/- with 20 % interest on it. 48,655=50 10. Due to excavation of extra item of work of soft and hard rock the rates as prevailing in year 1987 was claimed. 1,91,824=00 8. Refilling of earth from outside in the trenches. 1,00,639=00 9. Illegal recovery of time limit deposit of Rs.18,315/- and water charges of Rs.11,315/- Total amounting to Rs.29,570/- with 20 % interest on it. 48,655=50 10. Execution of the work of III Phase at Industrial zone not contemplated in contract for which additional rate of 50% was charged over tendered rate. 1,83,295=17 11. Idle charges of labourers due to want of instruction and decision from Corporation. 60,000=00 12. Claim of Bank Guarantee and amount deducted from R.A. Bill against the guarantee for due performance 43187 with 20 % interest plus bank commission on the same. 63,187=00 13. Excavation of the extra Qty. due to treacherous type of soil which has no binding effect. 1,05,05=00 14. Final bill submitted by plaintiff but no paid till June 1987. 50,000=00 15. Rise in price of material, labour petroleum for the prolonged period at 30% on work completed Rs.13,03,256/- 3,90,977=00 16. Additional expenditure towards staff salary, supervisor, driver, kitchen expenses, etc. due prolongation of the work of plaintiff 6,84,094=00 17. Damages by way of interest on 25 % amount blocked up in market on purchase of material from supplier.. 83,016/- 18. Interest @ 12% from May, 1987 till filing of suit i.e. 11.6.1990 on Rs.28,32,903/- 10,58,961=00 Accordingly, the suit was instituted for recovery of amount aggregating to Rs. 38,91,864=36 from the defendants. 6. In response to the suit, the defendants filed their written statement Exh. 24 dated 24.07.1991 denying the contentions raised in the plaint. It was stated therein that the tender was opened on 01.10.1982 and the plaintiff vide letter dated 07.03.1983 withdrew certain conditions, which were imposed and entered under the agreement without any objection to complete the work by 06.01.1984. It was further contended that if the defendant was unable to supply the cement in that case the contractor has to seek permission for purchase of the cement from open market and, therefore, he is not entitled to any enhanced rate. It was also contended that the total period of 51 months was utilized by the plaintiff and considering the four months of monsoon, the plaintiff could have completed the work in March, 1984 and hence, there is a delay on the part of the plaintiff. 7. It was also contended that the total period of 51 months was utilized by the plaintiff and considering the four months of monsoon, the plaintiff could have completed the work in March, 1984 and hence, there is a delay on the part of the plaintiff. 7. The trial Court framed the issues at Exh. 25 and observed that the plaintiff proved that they could not complete the disputed work within the stipulated period due to breach committed by the defendants and accordingly observed that the plaintiff also proved damages in part and the suit is decreed to the tune of Rs. 10,40,920/-. However, for different claims the trial Court observed as under: Claim No. 1 amounting to Rs. 59,930/- is rejected. Claim No. 2 amounting to Rs. 1,07,231/- on account of change in decision and performance of vent-shaft, is rejected. Claim Nos. 3 and 4 amounting to Rs. 8,400/- on account of de-watering and Rs. 29,400/- on account of excavation of muddy soil are proved by the plaintiff and, therefore, he is entitled to the said amount of Rs. 8,400/- and Rs. 29,400/-. Claim No. 5 amounting to Rs. 6,16,716/- on account of shoring and strutting of the soil is proved by the plaintiff and accordingly the said amount is awarded. Claim No. 6 amounting to Rs.50,488/- on account of refilling of the excavated area during the monsoon is done by the plaintiff and, therefore, he is entitled for the said amount. Claim No. 7 amounting to Rs. 1,91,824/- for excavation in hard rock and soft rock is rejected. Claim No. 8 amounting to Rs. 1,00,639/- for refilling of the earth in trenches brought from outside. The same is granted. Claim No. 9 amounting to Rs. 18,315/- and Rs. 11,315/- relating to time limit deposit. However, out of that, only Rs. 18,315/- was awarded and the claim for Rs. 11,315/- is rejected. Claim No. 10 amounting to Rs.1,83,295.00 relating to extra work in 3rd Phase of Industrial Zone is rejected. Claim No. 11 amounting to Rs.60,000/- on account of idle charges of labourers, is rejected. Claim No. 12 amounting to Rs.63,187/- on account of security deposit given by the plaintiff for due performance of the contract, the trial Court has held that the plaintiff is entitled to refund of the said amount. Claim No. 13 amounting to Rs. 1,05,050/- on account of excavation, the same is rejected. Claim No. 12 amounting to Rs.63,187/- on account of security deposit given by the plaintiff for due performance of the contract, the trial Court has held that the plaintiff is entitled to refund of the said amount. Claim No. 13 amounting to Rs. 1,05,050/- on account of excavation, the same is rejected. Claim No. 14 amounting to Rs. 50,000/- on account of non-payment of final bill, the same is rejected. Claim Nos. 15 and 16 amounting to Rs. 3,90,977/- and Rs. 6,84,094/- in respect of rise in price of material, labour and petrol and for the expenses incurred for staff salary, supervisor, office camp, chowkidar, etc. are concerned, the same are rejected. Claim No. 17 amounting to Rs. 83,016/- on account of blockage of money in material which was purchased by the plaintiff, the same is also rejected. Claim No. 18 amounting to Rs. 10,58,961/- being 12% of Rs. 28,32,903.36 interest, till date of filing of the suit i.e. 11.06.1990, 12% interest is awarded. In all the trial Court has awarded Rs. 10,40,920/- with 9% interest. 8. Mr. Rutvij M. Bhatt, learned advocate for the appellants-original defendants has specifically raised his grievance against Claim No. 5 only, pertaining to amount of Rs. 6,16,716/- granted on account of shoring and strutting of the soil. He has submitted that drawing of shoring and strutting were given along with the tender copy, and the same reveal that shoring and strutting from top to bottom was to be done by the plaintiff. He has further stated no evidence was led in support thereof and the Trial judge has based the findings only on the nature of soil which was black, red and yellow, and the same does not state the nature or the conditions of soil. Hence, the claim No. 5, amounting to Rs. 6,16,716/- on account of shoring and strutting of the soil awarded by the Trial court is erroneous and unjustified. 9. Mr. Nilesh Pandya, learned Advocate appearing on behalf of Original plaintiff has supported the judgment and decree passed by Trial Court. He has also urged not to interfere with the same since the decree is already executed and money is already withdrawn by the plaintiff before admission of this appeal 10. We may reproduce the observation of the Trial Court qua Claim No. 5 as under: "Claim No. 5. The next claim is amounting to Rs. He has also urged not to interfere with the same since the decree is already executed and money is already withdrawn by the plaintiff before admission of this appeal 10. We may reproduce the observation of the Trial Court qua Claim No. 5 as under: "Claim No. 5. The next claim is amounting to Rs. 6,16,716/- on account of shoring and strutting of the soil. It was the say of pltf. that as per terms & conditions of contract they were required to carry out the work in black, red and yellow murrum soil. The same is prescribed schedule-B item No. 1 at Ex-166. The pltf while executing the work, came across the soil which was of treacherous type and said soil has no binding effect and was of loose type of soil. That the defd. witness in his cross examination Ex-294 had admitted that shoring and strutting is considered on the basis of how the work to be carried out is in depth. The price of shoring and strutting is estimated on the foot basis and in drainage work such shoring and strutting is always there. The estimate were made for original soil. It is true that when there is drainage work or open gutter or leakage of water then shoring and strutting is required. The defd. contended that the design of shoring and strutting was provided with tender and that the defd. were knowing the type of soil and hence the shoring and strutting was provided with tender. That the inspected the soil & hence the tender was floated accordingly. The defd. further states that the pltf. were knowing the nature of soil & accordingly they have filled the rate. I am of its opinion that the tender was floated for the natural type of soil mentioned in it & as the soil on which the work was executed was of treacherous type and hence the extra efforts were made for shoring and strutting and for which the pltf. is entitled to amount. Hence, the claim of Rs. 6,16,716/- is hereby allowed." 11. The finding of the Trial Court about the nature of soil as being "treacherous type" cannot be disturbed since the Trial court on examination of the record has concluded that the soil had no binding effect and was of loose type of soil. is entitled to amount. Hence, the claim of Rs. 6,16,716/- is hereby allowed." 11. The finding of the Trial Court about the nature of soil as being "treacherous type" cannot be disturbed since the Trial court on examination of the record has concluded that the soil had no binding effect and was of loose type of soil. Before the Trial Court, the testimony of the then Executive Engineer is recorded wherein he has stated that the chances of sliding down of land are more in case where its depth is more and in the work of such drainage generally work of shoring and strutting is placed and at the time of estimate the same is to be considered. He has further stated that when the water pipe line or open gutter passes from nearby or there is leakage in it then shoring and strutting is required to be done so that the land does not slide down. In view of the specific statement made in Exh. 294 by the then Executive Engineer it cannot be said that the Trial Court has erred in allowing the claim of Rs. 6,16,716/- with 9% interest. 12. Mr. Rutvij M. Bhatt, learned advocate for the appellants-original defendants, has also objected to grant of interest @ 9% since the same is exorbitant. We are endorsing the view taken by the trial Court granting interest @ 9% since it was the prevalent rate in the nationalized bank at the relevant time. 13. The important aspect, which will affect the root of the matter, is that the plaintiff (present respondent) had subsequently filed execution proceedings being Execution Petition No. 36 of 2006 on 12.10.2006 against the defendants (the present appellants) for execution of the aforesaid decree drawn by the trial Court. On 16.03.2007, the defendants had deposited the decreetal amount with interest and cost, which comes to Rs. 27,36,257.32, which is already withdrawn by the plaintiff before admission of this appeal. 14. Thus, conjoint reading of evidence appreciated by the trial Court for arriving at just findings based on sound reasonings, in absence of any error of law do not persuade us to modify or disturb the judgment and decree passed by the trial Court at this stage. Accordingly, in absence of merit, the appeal is dismissed.