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2017 DIGILAW 1830 (RAJ)

State of Rajasthan v. Dwarkadas Doshi

2017-08-16

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT : Virendra Kumar Mathur, J. This civil First Appeal under section 96 CPC has been filed against judgment & decree dated 26.04.2000 passed by learned Additional District Judge No.3, Jodhpur in Civil Original Suit No.368/1989. 2. Briefly stated, a tender received on 15.02.1977 for the work "raising of approaches to Luni bridge at Gandhav on Barmer-Sanchore road NH-15, along with necessary protective works in Km 591/0 to 601/0 (Km 0/0 at Bikaner), Job No.RJ-15/168" was sanctioned in favour of M/s Dwarka Dass Doshi, PWD 'A' Class Contractor (a registered partnership firm), Chohatan by the Additional Secretary to the Govt., PWD (B&R), Rajasthan vide his order letter dated 11.03.1977, on behalf of Governor of Rajasthan, at the rate 2.95% below G-schedule, amounting to Rs. 60,03,921.58 only. The work order for the same was issued by the Executive Engineer, PWD (B&R), Sanchore vide his letter dated 29.03.1977, allocating Agreement No.01/1976-77 stipulating date of start & completion of the work as on 03.03.1977 to 29.03.1978 (12 months). 3. The original agreement with special conditions (Ex.2) was signed by Mr. Dwarka Das Doshi for the respondent-Contractor M/s Dwarkadas Doshi and the then Executive Engineer, PWD (B&R), Sanchore Division on behalf of the Governor of Rajasthan. The actual work completed on 20.04.1979 i.e. 12 months & 22 days after the stipulated date of completion. The total work done up to 20.04.1979 was for Rs. 82,23,593.47 and the final bill was paid on 19.10.1979, after granting final time-limit extension with 0.25% compensation levied as Rs. 15466/- (0.25% of estimated cost of Rs. 61,86,421/-). The extension was granted by the Chief Engineer, PWD (B&R), Jaipur (competent authority) vide his letter dated 28.09.1979, holding the Contractor liable to pay compensation as per clauses 2 & 3 of the Contract conditions for delay in execution of important construction work pertaining to National Highway No.15 (strategic importance). 4. It was stated that the Contractor (claimant) received payment and signed receipt on 19.10.1979 but the civil suit was filed on 17.12.1982, after passing of 03 years 01 month and 28 days, which was liable to rejected as barred by time. It was further stated that the contract Agreement between the parties was in prescribed form including special conditions and both legally agreed with the terms & conditions mentioned in it. This fact was accepted by the claimant-Contractor in para 2 of the civil suit. It was further stated that the contract Agreement between the parties was in prescribed form including special conditions and both legally agreed with the terms & conditions mentioned in it. This fact was accepted by the claimant-Contractor in para 2 of the civil suit. It was stated that full & final payment and security deposit of Rs. 4,86,680/- i.e. all dues have been paid to the claimant by the appellant and claims under paras No.5 to 17 are baseless and liable to be rejected with cost. 5. The trial court after framing the issues, on the basis of pleadings of the parties, decided the suit and decreed the suit partially in favour of the plaintiff by way of judgment dated 26.04.2000. The appellant, being aggrieved by the judgment & decree dated 26.04.2000, preferred this appeal on the grounds that the trial court has wrongly decided issue No.3 in favour of the plaintiff to the extent of Rs. 9,300/- for 9300 cubic meters of earth work @ Rs. 10/- per 10 cubic meters. In the first instance, the said finding on issue No.3 is contrary to the finding of the trial court on issue No.1, since claim of the plaintiff for excess transportation of earth has not been allowed and so there was no question of allowing said claim partly to the extent of Rs. 9,300/-. The final bill having been settled and paid to the Contractor, in accordance with the terms of the contract and calculations of earth used on sides of the road, on the basis of cross-section method as provided in the terms of the contract, was justified and the excess earth removed on account of slope cutting can not be counted or included and therefore, there was no justification for grant of any extra amount against excess earth collected and placed on the road sides. The trial court had accepted contention of the Department that the plaintiff failed to establish his claim in issue No.1 about lead distance, therefore, there was no basis for awarding Rs. 9300/- on account of said extra earth brought on the road sides. It was contended that the Department was justified in making deduction on account of alleged extra earth of 9300 cubic meters and therefore, no amount on this account could have been awarded in favour of the Contractor. 6. 9300/- on account of said extra earth brought on the road sides. It was contended that the Department was justified in making deduction on account of alleged extra earth of 9300 cubic meters and therefore, no amount on this account could have been awarded in favour of the Contractor. 6. It was contended that the trial court rightly decided issue No.4 against the plaintiff, on applicability of Clause 304.6 of MOST guidelines provided by the Ministry of Surface Transport and also in accordance with Clause 32.5.6.7 of the PWD Manual, while rejecting claim of Rs. 1,45,000/- on account of calculation of earth work on the basis of cross-section method as against the measurement of borrow pits from where the earth was excavated because it was not necessary that the earth so excavated was really transported to the site. On the same principle, excess earth removed from road side after slope cutting can not be counted and no claim on that count could be given. Thus, the finding given on issue No.3 is also contrary to the findings given by the trial court on issue No.4. Therefore, the trial court has committed illegality in deciding issue No.3 in favour of the plaintiff. 7. It was further contended that the trial court has also erred in deciding issue No.5 and directing refund of penalty/compensation of Rs. 15,400/- imposed and realised from the Contractor, on account of delay in completion of the contract work. The delay in execution of the contract was to the extent of one year & 22 days. The scheduled date for completion of the work was 29.03.1978 whereas the actual work was completed on 20.04.1979. On account said delay, several reminders and notices were given to the Contractor but the trial court ignored this evidence though there was no rebuttal of the same on the part of the plaintiff. The plaintiff wrongly alleged that the Department was responsible for the delay on account of said reasons like flood in Luni river, elections of Panchayats etc. 8. In view of the contentions raised by the appellant with respect to issues No.3 and 5, perused the pleadings and evidence placed on record. 9. In the written statement filed by the defendant-appellant, it was admitted that cross-sections were taken before measurement of the site but no mathematical calculation was done. 8. In view of the contentions raised by the appellant with respect to issues No.3 and 5, perused the pleadings and evidence placed on record. 9. In the written statement filed by the defendant-appellant, it was admitted that cross-sections were taken before measurement of the site but no mathematical calculation was done. DW1 also admitted in his statement that Lyksi dfVax djus ds ckn fdruh feV~Vh Qsadh x;h bldk bUnzkt dgha ij Hkh ugha gS o dzksl lsD'ku ls x.kuk dksEisd'ku ds ckn djrs gSaA From the evidence available on record, the trial court has rightly observed that: ^^dzksl lsD'ku ls tks feV~Vh dh x.kuk dh x;h og dksEisD'ku ds i'pkr dsoy ek= ftruh pkSM+kbZ dh lM+d Fkh o ftruh pkSM+kbZ ij jksM+jksyj pyk;k x;k feV~Vh dh ml ek=k dh x.kuk gh dh x;h gS o jksM+ jksyj pyk, tkus gsrq oknh }kjk lM+d ds nksuksa vkSj tks ,DlV~k feV~Vh M+kyh x;h Fkh mls jksM+jksyj ds i'pkr Lyksi dVhax dj Qsad fn;k x;k o mldh dgha ij Hkh dksbZ x.kuk ugha dh x;hA oknh }kjk ;g feV~Vh 9300 ?kuehVj gksuk crk;k x;k ftldk dksbZ [k.M+u izfroknh dh vkSj ls ugha gSA vr% Li"V gS fd oknh }kjk bl 9300 ?kuehVj feV~Vh dk tks dk;Z fd;k x;k mldk dksbZ Hkqxrku izfroknh dh vkSj ls oknh dks ugha fd;k x;k gSA** 10. So far as plea taken in respect of issue No.5, defendant's witness DW2 in his statement admitted that: ^^dk;Z dh lekfIr dh vuqcU/kkRed frfFk 30-03-1978 Fkh ;g le; vof/k ckn esa c<+kbZ xbZ Fkh o mls ;g irk ugha fd Hkwfe vokIr ugha gksus dh otg ls lek;kof/k c<+kbZ xbZ gks ;k bldk dkj.k ckbZikl nsjh ls feyuk gks o ywuh unh esa Dykstj gksuk bldk dkj.k gks mls /;ku ugha o mls ;g Hkh /;ku ugha fd bl dk;Z ds nkSjku iapk;r lfefr ds pquko gq, gksA 26- mijksDr lk{; ls ;g rF; fufoZokn gS fd dk;Z lekIr djus dh vof/k 30-03-1978 Fkh tks dk;Z ,d o"kZ 22 fnu i'pkr dh nsjh ls iw.kZ gqvk o oknh }kjk bl foyEc ds laca/k esa foHkkx dks voxr djk;k x;k o foHkkx }kjk izksohtuyh bl le;kof/k dks ,DlVsUM+ fd;kA ;g rF; Hkh fufoZokn gS fd oknh ij 15]400@& :i;s dh 'kkfLr yxkus ls iwoZ oknh dks fdlh izdkj dk dksbZ uksfVl ugha fn;k x;kA** 11. On the basis of evidence available on record, the trial court has rightly appreciated the evidence and decided the issue in favour of the plaintiff and against the defendant-appellant. 12. There is no ground to interfere in the judgment & decree dated 26.04.2000 passed by the trial court. The appeal is devoid of merits and the same is hereby dismissed.