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Himachal Pradesh High Court · body

2018 DIGILAW 135 (HP)

G. D. Engineering Construction v. State of H. P.

2018-01-11

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The plaintiff is a proprietary firm and has instituted the instant suit, through, its sole proprietor, one Ghanshyam Das Dhiman. In the instant suit, the plaintiff claims pecuniary damages against the defendants comprised in a sum of Rs. 1,10,65,673.00/- along with pendete lite and future interest @ 18 % per annum. 2. The plaintiff, who successfully bided, for execution of construction work, of, approaches and guide bunds, on, the link road of Badsla-Dathwara-Dhamandri. In consequent thereto, he was awarded the aforesaid work for its execution, besides a contract was executed inter se him and the defendants. In the apposite contract executed inter se them, the defendant covenanted, to complete the aforesaid work, within, four months, commencing, from 29.03.2003 also in the apposite contract executed inter se the plaintiff and the defendants, the aforesaid covenanted time, was, its essence. The claim of the plaintiff is anvilled, upon, the factum of defendant No. 2 not completely handing over vis-a-vis it, all the necessary sites, for his being hence enabled, to execute the awarded works, within the time schedule, specified, in the relevant contract of works executed inter se him and the defendants. He has submitted, that, though he had commenced the work in time and had also submitted progress charts, in respect of his making the necessary progresses, within, the covenanted scheduled time, prescribed, for executing the awarded work AND also avers, of, his within 25 days, since the awarding of the works, his, completing 30% of the works, costs whereof is computed in a sum of Rs. 18.19 lacs. However, he avers, of his being not paid the pecuniary sums, in commensuration thereof, hence, being disabled, to procure G. I. wires and boulders, both essential items, for completing the works awarded to him, thereupon, his failing to complete the relevant awarded works, within covenanted schedule, specified in the relevant contract. He has also proceeded to aver that owing to non settlement of disputes inter se the private owners of lands, whereon, works were to be executed, hence he was constrained to not complete the works, within, the period specified in the relevant contract. He has also proceeded to aver that owing to non settlement of disputes inter se the private owners of lands, whereon, works were to be executed, hence he was constrained to not complete the works, within, the period specified in the relevant contract. He has also averred that the second phase of the contracts of works awarded to him, AND, to be executed on the right side of the bank, of, the river, had come under execution in the month of May, 2003, yet his executions thereat, were stopped by the J. E. of the defendants, on the ground that the materials collected thereat by the other agency, were prior thereto, enjoined to be shifted therefrom by the government bulldozer, AND with the Government bulldozer being broken down, for, an inordinately prolonged, time, besides the onset of rainy seasons also sequelling haltings of execution of work, at, the bank of the river. He proceeds to aver that ultimately the site existing, at the right side of the bank of the river, was, handed over to him, in the month October/November, 2003. He has made candid averments, that, it was only on account, of, the aforesaid impeding factors, that he stood, deterred to complete the work, within, the covenanted schedule, specified in the contract. Furthermore, he has averred in his plaint, that, after conclusion of rainy reason, there occurred a sharp rise in the prices of G. I. wires AND the manufacturers of G. I. wires, were disabled, owing to scarcitys thereof in the country, to, hence supply in time, the aforesaid G. I. wires to him. He has proceeded to aver that he could not collect the aforesaid material in time, on account of the defendants, withholding, his payments vis-a-vis the running bills. In addition, he has averred that the defendants, were, obliged to under the apposite contract, to hence supply cement at cost basis, yet the defendants concerned, omitted to, make supplies of cement to him, within, the period covenanted in the contract AND hence there being delay on the part of the defendants concerned to supply the cement vis-a-vis him, thereupon, he has averred, that, all the aforesaid omissions, on, the part of the defendants concerned also sequelling, his not completing the awarded works, within, the time schedule specified in the apposite contract. In the month of February, 2004, the Superintendent of Engineer concerned, visited, the site and had directed him to stop the works, owing to some technical requirements and also had directed him for strengthening the pitching work. Thereafter, he avers that, despite his awaiting for 7 months, for his being purveyed by the defendants, the designs and specifications of additional work, yet the defendants concerned rather intimated him, that, the Superintending Engineer, has abandoned the idea of strengthening the PCC bank, rather has directed him, to carry out the work, as per original specifications in the contract, hence, the aforesaid factor constrained him, to, complete the awarded work, within, the covenanted schedule, specified in the apposite contract. The plaintiff also avers that, on, completion of rainy seasons, a ban was imposed by the Government, for, operating stone crushers, hence, constraining him, to purchase boulders, for, the relevant purpose, from, Kiratpur in Punjab, hence sequelling escalation in the expenses besides costs of the awarded work vis-a-vis him. He avers that owing to escalation in the costs of G. I. wires, since the awarding of work, till his collecting them, from, the open market, also sequelling escalation in the costs of executions of work awarded to him, since the date of its awarding vis-a-vis him, till his coming to execute them. Averments are cast in the plaint, that, upon the Superintending Engineer concerned, making, visits to the site, his assuring him that in consonance, with, the reimbursement clause, bearing clause No. 10(c), he would get the benefit of escalated expenses, incurred by him, for purchasing the materials, for completing the execution of the works, hence, he avers that, on, the assurances of defendant No. 2, he completed the works and further submits that in consonance with clause 10(c), his, on 31. 12. 2004, claiming reimbursement, from, the defendants concerned, a sum of Rs. 16.71 lacs, yet, the defendants concerned allowing him reimbursement, only, to the extent of Rs. 12. 50 lacs. He further avers, his slowing down, the pace of works, only for want of defrayments vis-a-vis him, of running bills in respect of the works completed by him. Defendant No. 2 rescinded the contract on 31. 5. 2005, rescission whereof is averred to be without any reason. 12. 50 lacs. He further avers, his slowing down, the pace of works, only for want of defrayments vis-a-vis him, of running bills in respect of the works completed by him. Defendant No. 2 rescinded the contract on 31. 5. 2005, rescission whereof is averred to be without any reason. The plaintiff, had, instituted a CWP No. 656 of 2005, before this Court, Civil Writ Petition whereof, was, disposed off, by this Court on 13. 9. 2005, whereby, this Court had directed the Engineer-in-Chief concerned, to decide the matter as per clause 10(c), of, the contract, especially vis-a-vis the claim, for, reimbursements borne in a sum of Rs. 16.71 lacs. However, with the Engineer-in-Chief, delegating, his powers to the Superintending Engineer, for making the relevant calculations, as per clause 10(C) of the apposite contract, thereupon, the plaintiff challenged, the apposite calculations, before this Court, by his instituting CWP No. 1293 of 2005, which came to be decided on 7. 12. 2006, whereby, this Court directed the Engineer-in-Chief, to, decide the claim of the plaintiff, for reimbursement of a sum of Rs. 16.71 lacs, upon, his making, in respect thereof, hence a representation before him. However, the decision recorded, on the plaintiff's representation, by the Engineer-in-Chief, went adversarial vis-a-vis the plaintiff. In the proceedings drawn before the Engineer-in-Chief, the plaintiff had foregone his claim for a sum of Rs. 16.71 lacs, rather he settled with the defendants, for theirs releasing his security vis-a-vis him. The plaintiff contends that the aforesaid abandonments or foregoings by him, of his claims, for reimbursement of Rs. 16.71 lacs, against the defendants, being a sequel of duress or compulsion being exerted upon him. 3. The defendants, contested, the averments constituted in the plaint, by instituting a detailed written statements thereto. In the written statement instituted by the defendants, a pointed contention, is reared, of despite the plaintiff covenanting, to, complete the works on or before 28. 07. 2003, besides time being the essence of the agreement, his failing to complete the execution of the awarded works, within, the aforesaid period, thereupon, constraining the defendants, to both impose penalty, upon, the plaintiff and also to forfeit the security amounts, besides theirs being constrained to, rescind the contract under letter of 31. 05. 2005. 07. 2003, besides time being the essence of the agreement, his failing to complete the execution of the awarded works, within, the aforesaid period, thereupon, constraining the defendants, to both impose penalty, upon, the plaintiff and also to forfeit the security amounts, besides theirs being constrained to, rescind the contract under letter of 31. 05. 2005. The defendants emphasized, upon, the factum of the plaintiff, during the course, of proceedings, held, by the Engineer-in-Chief, in pursuance, to the latter being directed by this Court, under, its pronouncement recorded on 8. 8. 2005, for deciding the representation of the plaintiff, embodying therein, his claim for reimbursement, comprised in a sum of Rs. 16.71 lacs, his thereat rather abandoning besides foregoing the aforesaid claim, rather his accepting the defendants releasing the security deposit vis-a-vis him. Consequently, it is contended that the aforesaid foregoings besides abandonments, estopping, the plaintiff to rear any claim with respect to his being entitled to Rs. 16.71 lacs, on account of escalations in expenses, arising, from escalation in costs of the apposite materials. The defendants pointedly, aver, that even before the onset of the monsoon, there was sufficient time available, with the plaintiff, to, execute the awarded works. The defendants also contended that, despite, a specific clause being borne in the relevant contract, whereby, the plaintiff, is enabled to apply for extension of time, yet his not invoking the said clause, rather his after elapse of 11 months, therefrom, striving to invoke the apposite claim, thereupon, the defendants contend, that the aforesaid belated invoking, of, the apposite clause borne in the contract, whereby, the plaintiff, is enabled to seek extensions of time, for his completing the awarded works, is per se personificatory, of, his gross un-interestedness in his completing the awarded works. The defendants contended that the delay, if any, in the execution of the work, is squarely attributable to the omissions of the plaintiff. The apposite valid payments, for, works completed, by the plaintiff is contended to be borne out by his signaturing, the relevant measurement book entries AND in consonance thereto, the relevant payments being released vis-a-vis him, hence, it is contended, that the releases of payments, by the defendants concerned, being in consonance with the accepted entries borne, in the measurement books maintained by them. The defendants, contend, that despite theirs making repeated communications, to, the plaintiff, under, letters of 7. 5. 2003, 23. 5. The defendants, contend, that despite theirs making repeated communications, to, the plaintiff, under, letters of 7. 5. 2003, 23. 5. 2003 and 5. 6. 2003, yet the plaintiff not paying any heed to them. It is also contended, that the delay, if any, in the belated procurement of the GI wires by him, is, solely attributable to the plaintiff, not making their procurements within time. It is also contended, that, despite existence of specific clause 10-B in the relevant contract, whereby, he could purchase and bring the material, to, the sites of work, against the secured advance of 75%, yet he failed to do so AND rather delayed in making the purchase of G. I. wires, after the onset of the rainy season, whereat, the price of G. I. wires, suffered escalation in the market, (i) thereupon, it is contended, by the defendants that the aforesaid lack, of diligence, on the part of the plaintiff, to not, within time hence purchase G. I. wires besides his not invoking clause 10-B of the apposite contract, (ii) beset upon him, a deterrent, of his being disabled, to claim damages from the defendants. It is also denied that the factum of stoppage of the stone crusher activities, within, the State of Himachal Pradesh, besetting, constraints besides disabling the plaintiff, to, complete the works within the contractually specified time. Even otherwise, the defendants contend, that, the stoppage of stone crushing activity, by orders rendered by this Court, occurring only on 17.09.2003, hence, after the expiry, of, the contractually specified time, for completion, of, awarded works, wherefrom, no leverage can be drawn. The defendants, contend, that the lands of the private land owners, whereon, part of the works was to be executed, being handing over by them along with their no objections certificate, (iii) hence, theirs purportedly, objecting, against the plaintiff's completing works, upon, their lands being a sheer contrivance. Lastly, the defendants, contend, that the plaintiff was not having sufficient man force and wherewithals, with him, for executing the awarded work, within, the covenanted time specified in the apposite contract. 4. The plaintiff herein filed replication to the written statement of the defendants, wherein, he denied the contents of the written statement and reaffirmed and re-asserted the averments, made in the plaint. 5. On the contentious pleadings of the parties, this Court on 7.01.2015, struck the following issues inter-se the parties at contest:- 1. 4. The plaintiff herein filed replication to the written statement of the defendants, wherein, he denied the contents of the written statement and reaffirmed and re-asserted the averments, made in the plaint. 5. On the contentious pleadings of the parties, this Court on 7.01.2015, struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled to a sum of Rs. 1,10,65,673. 00/- along with pendente-lite and future interest as damages from the defendants? OPP 2. Whether the suit is not maintainable in the present form? OPD. 3. Whether the suit is not maintainable for want of cause of action? OPD. 4. Whether the suit is not maintainable for want of notice under Section 80 of the CPC?OPD. 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 6. Whether the suit is time barred? OPD. 7. Whether the plaintiff is estopped to claim the relief as asserted in the plaint on account of his acts, conduct and acquiescence? OPD. 8. Relief. 6. For the reasons to be recorded hereinafter, my findings on the aforesaid issues are as under:- Issue No. 1. . . . . . . No. Issue No. 2. . . . . . . . Yes. Issue No. 3. . . . . . . . Yes. Issue No. 4. . . . . . . . No. Issue No. 5. . . . . . . No. Issue No. 6. . . . . . . . No. Issue No. 7. . . . . . Yes. 8. Relief. . . . . . . . . . Suit of the plaintiff is dismissed as per the operative portion of the judgment. Issue Nos. 1 and 7 7. Both the aforesaid issues, are taken together for discussion and decision as they are interlinked with each other besides when common evidence, upon, the aforesaid issues, hence, stand adduced by the contesting parties. 8. In proof of the apposite issues, the plaintiff, in consonance therewith, hence, rendered his testification in his examination-in-chief. Uncontrovertedly, time was covenanted, under, the apposite contract, to be its essence. The plaintiff was enjoined, to, complete the awarded works, within, four months, commencing from 29.3.2003. 8. In proof of the apposite issues, the plaintiff, in consonance therewith, hence, rendered his testification in his examination-in-chief. Uncontrovertedly, time was covenanted, under, the apposite contract, to be its essence. The plaintiff was enjoined, to, complete the awarded works, within, four months, commencing from 29.3.2003. The plaintiff was aware of the factum of existence, of a specific clause, in the contract, whereby, he was enabled, to before elapse of the covenanted period specified in the contract, for his completing the awarded works, hence, seek extensions of time. However, the plaintiff unavailed the aforesaid clause. Contrarily, he upon 11 months, elapsing, since the expiry of time within which, he covenanted, to execute the awarded works, hence asked for extensions of time for his completing the awarded works. Thereupon, with the extensions of time asked by the plaintiff, from, the defendants, for his completing the awarded works, hence being concerted much belatedly, beyond the contractually covenanted period, (i) thereupon, any refusals thereto, by, the defendants concerned is both valid and tangible, (ii) also the rescissions of the apposite contract, by the defendants, on arousals, of, apposite breaches thereof by the plaintiff, rather cannot be faulted, on account of its infringing, any covenanted terms and conditions, of the relevant contract, executed by the plaintiff vis-a-vis the defendants. The defendants had averred and proven of theirs, since 14. 3. 2003, upto five months therefrom, hence making repeated correspondences, with the plaintiff, for his completing the awarded works, within, the covenanted period, specified in the apposite contract. The defendants had averred and proven of theirs, since 14. 3. 2003, upto five months therefrom, hence making repeated correspondences, with the plaintiff, for his completing the awarded works, within, the covenanted period, specified in the apposite contract. (iii) However, the plaintiff remained unresponsive thereto, nor as aforestated, he applied, within the period, commencing, from 29.3.2003 upto four months thereafter, for time being extended vis-a-vis him, for enabling him, to complete the awarded works, (iv) also when he could, by making positive responses, to the communications addressed to him, by the defendants concerned, whereby, he was requested, to complete the awarded works, within, the covenanted schedule, specified in the contract besides, therein within four months commencing, from, 29.3.2003 upto four moths elapsing therefrom, rather hence efficaciously make echoings (a) of unavailability, of, G. I. wires in the open market, (b) unavailability, of, boulders within Himachal Pradesh, hence hampering him, to conclude the works, within the covenanted period, mentioned in the relevant contract, (c) whereas, his omissions aforesaid, rather, thereupon, rear a firm conclusion, of, his belatedly sought extensions of time, for completing the awarded works, being a sheer contrivance, (d) AND all excuses purportedly deterring him, to, execute the awarded works within the time also being an afterthought. (e) predominantly, his committing breaches, of, the apposite contract, hence, disabling him to claim damages. 9. The plaintiff has averred, that, owing to the sites being not completely handed over to him, by the defendants, his being disabled to conclude the works within the covenanted period, specified in the relevant contract, yet no firm evidence in respect thereto, stands adduced by the plaintiff. Contrarily, the officials of the defendants, who deposed as DW-1, makes clear voicings in his examination-in-chief, of all the sites, whereon the plaintiff, was, enjoined to execute the awarded works, being free from any hindrances. The aforesaid testification remained uneroded, of, its vigour, despite the plaintiff holding him to cross-examination. The factum, of certain works being enjoined, to be executed upon private lands and owners thereof, dissuading the plaintiff, from executing them thereon, is, also averred besides testified by the plaintiff, to be a major deterrent, in his not executing the awarded works, within, the prescribed time. The factum, of certain works being enjoined, to be executed upon private lands and owners thereof, dissuading the plaintiff, from executing them thereon, is, also averred besides testified by the plaintiff, to be a major deterrent, in his not executing the awarded works, within, the prescribed time. However, the omissions, of the plaintiff (i) to name the land owners also to bring forth the dates whereat, they impeded him, from, executing the works, rather constrains this Court, to draw, an adverse inference against him. Moreover, the plaintiff's omission to within the ambit, of, the contact move applications, wherein, he may have sought extensions of time, for his completing the work, hence, beyond the covenanted period, (ii) also obviously with there occurring, no echoings, of the names of the landowners, upon, whose lands, part of the works was to be executed AND who purportedly hampered him, from, executing them, also constrains this Court, to conclude that the aforesaid ground reared, by the plaintiff, for, his not completing the awarded works within the covenanted period, hence being an invention besides a concoction. 10. 10. Be that as it may, the plaintiff admittedly, accepted, his signaturing the apposite measurement books, wherein, depictions are borne, of, his executing 10%, of, the works, (i) in consonance wherewith, the running bills were released vis-a-vis him, (ii) he has not tendered any authentic measurements nor has concerted to elicit, from, the defendants concerned, any measurement books, with depictions, of, his beyond 10%, hence executing the awarded works, (iii) hence, for want of the aforesaid evidence, this Court is constrained, to conclude that the payments released vis-a-vis the plaintiff, by, the defendants concerned being in consonance, with, the measurement books maintained by the defendants, whereon, exist the signatures of the plaintiff, (iv) also this Court is constrained, to galvanise, an inference of absences, of the maintenance, of measurement books, by the plaintiff with depictions therein, of, the day today progress(es) achieved by him, in his, executing the awarded works besides displays therein, of, the reasons, for his not executing the works, within, the covenanted period, specified in the relevant contract also fomenting, a firm conclusion, of, all the omissions aforesaid, rather begetting inferences adversarial vis-a-vis the plaintiff, and also belittling all his espousals, of his not, breaching all the terms and conditions of the relevant contract AND, of, his not making any overt lapses, ascribed vis-a-vis him, comprised in his, not, completing the works awarded to him, within, the covenanted time, specified in the relevant contract. 11. The plaintiff had abandoned and foregone his claims vis-a-vis reimbursements vis-a-vis him, arising from, escalation in the costs of the apposite materials. As aforestated, the escalations in the costs, of the relevant material, ensued from, his abysmal failure to invoke apposite clause 10-B, of, the relevant contract, whereby, he had leverage, to, purchase the relevant materials besides bring them, to the site of works, against secured advance of 75 %. The effect of the aforesaid failures of the plaintiff, benumbs, his claim for reimbursements vis-a-vis the escalated costs, of, the relevant materials, since, the date of execution of the contract, upto, the period whereat it was to be completed, (i) hence, it appears that with the plaintiff, sensing, that his aforesaid omissions, would render him disabled, to claim reimbursements, of, escalations in the costs of the materials, he took to abandon his claim in respect thereof, rather opted to seek releases, of the security vis-a-vis him by the defendants. Consequently, it appears that the aforesaid abandonments and waivers, estop, the plaintiff, to in respect thereto, hence, rear any claim before this Court, besides any espousal of the plaintiff, of, his signing, the relevant statement, under, duress or compulsion, being also an afterthought, especially, when there is no protest existing underneath, his signatures, occurring on the relevant statement nor any complaint in respect thereto is made by him to the higher authorities, of the defendants concerned. 12. Consequently, Issues No. 1 and 7 are decided in favour of the defendants and against the plaintiff. Issue No. 2 and 3. 13. In view of my findings on the aforesaid issues, neither the plaintiff can maintain the instant suit nor he has any cause of action to file the instant suit. Consequently, both these issues are decided in favour of the defendants and against the plaintiff. Issue No. 4 14. From a perusal of the record, it is borne out that the plaintiff, before the institution of the instant suit, has issued on 29. 1. 2007 and 27. 10. 2009, notices under Section 80 of the CPC vis-a-vis the defendants, hence, the instant suit cannot be said to be bad for non issuance of notice under Section 80 CPC vis-a-vis the defendants. Accordingly, issues No. 4 is decided in favour of the plaintiff and against the defendants. Issue No. 5 and 6. 15. It has not been shown by the defendants as to how the suit is not properly valued for the purpose of court fee and as to how the suit of the plaintiff is time barred, hence, for want of evidence in regard aforesaid, issue Nos. 5 and 6 are decided in favour of the plaintiff and against the defendants. Relief. 16. In sequel to findings on issues aforesaid, the suit of plaintiff is dismissed. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All pending applications also stand disposed of.