JUDGMENT : 1. The challenge in this appeal is to the judgment and decree dated 1/7/2008 passed by the learned Senior Civil Judge at Panaji, in Special Civil Suit No.23/2001/B. By the impugned judgment, the learned trial court has dismissed the suit filed by the appellant for recovery of an amount of Rs.01,24,80,832.56 along with interest under various heads. 2. The brief facts necessary for the disposal of the appeal may be stated thus; Under a work order dated 3/2/1993, the respondent had awarded a contract to the appellant for construction of “Aqueduct cum Pressure conduit”, across Kalna river at village Hassapur in Pernem Taluka, which is more specifically described in the plaint. The period for completion of work was 600 days excluding monsoon. The stipulated dates of commencement and completion of work were 18/2/1993 and 11/10/1995, respectively. 3. The material case made out in the plaint is that since inception there were certain breaches of the terms of the contract committed by the respondents which had resulted in delay, in completion of the work beyond the agreed dates. It was contended that although the work order was issued on 3/2/1993, the department was not able to mark the layout, as a discrepancy was noticed between the original tendered drawings and the actual ground conditions. The contract drawings were specifically modified after about 45 days. When the appellant commenced the actual execution of the work, the inspecting officer of the respondent found that soil bearing capacity at the location was too low and it needed further investigation. Accordingly, the department carried out soil investigation work for foundation of certain piers and it was only after this exercise was conducted over a period of 90 days, that the department gave approval for continuation of work. Subsequently the department had ordered to defer the work in connection with a crucial and important component of work, namely, the RCC well and sloppy portion of the RCC duct and after the commencement of the work, the respondent had decided to refer the contractual drawings for hydraulic studies to Maharashtra Institute of Engineering and Technology (MERI, Nasik). As a result of this, the entire work schedule of the appellant was adversely affected and the appellant was compelled to hold most of the establishment idle. Ultimately the drawing for sloppy portion of the Acqueduct was handed over to the appellant on 12/1/1995. As a result of this, the entire work schedule of the appellant was adversely affected and the appellant was compelled to hold most of the establishment idle. Ultimately the drawing for sloppy portion of the Acqueduct was handed over to the appellant on 12/1/1995. The modified drawings for the well of Acqueduct, as per the recommendation of the model studies conducted by (MERI), Nasik with increase in depth of rocky strata were issued only on 27/4/1995 i.e. on the eve of the monsoon as a result of which the requisite excavation could be started only after monsoons. Even thereafter, the work was again obstructed as no details were available for well connection trough A-B which were finally provided on 4/1/1996. Thus according to the appellant, the major delay to the extent of 684 days was attributable to the respondent. 4. It was further claimed that as per the terms of the contract, the appellant was free to use wooden or steel supports for all casting of RCC items of work. However, in respect of some 15 metres spans (R-S & S-T), the second respondent insisted the appellant to use only steel truss in order to ensure structural safety. It was contended that the appellant had already erected wooden centering and shuttering, however, on account of the insistence of the second respondent was compelled to remove the said centering and shuttering and to provide for steel truss drawing for approval of the department in November 1994. On the request of the department a revised drawing was submitted on 16/2/1995. In May 1995, fresh drawings for the truss were supplied again on the eve of monsoons. As a result of this, there was yet another delay of 180 days. 5. It was then contended that there was some obstruction to the approach road to the site on account of the work undertaken by some other agency employed by the respondents in the vicinity. As per the original contract, there was a provision for earth filling below the transition portion. However, during the course of work, the same was substituted by machine compacted rubble packing for structural safety and there was certain conflicting decisions from the higher authority and by the time the same was clarified, there was further delay of 125 days. As per the original contract, there was a provision for earth filling below the transition portion. However, during the course of work, the same was substituted by machine compacted rubble packing for structural safety and there was certain conflicting decisions from the higher authority and by the time the same was clarified, there was further delay of 125 days. It was next contended that the appellant was also asked to carry out and execute certain extra items which were a deviation from items found in the contract as set out in para 10 of the plaint. It was also contended that the work was delayed also on account of the failure of the respondent no.2 to supply cement as and when required as stipulated in the contract. For instance between 14/11/1995 and 3/1/1996, the balance cement available at the department godown was only one bag. The appellant was, therefore, directed to procure the same from open market which also resulted in the delay. Inspite of various obstacles which are attributable to the respondents, the appellant could succeed in completing the work structurally on or about 30/6/1997. The last and final item of testing and commissioning of the Acqueduct could not be done as the respondents failed to issue the 'pressure hold cum pressure conduit' portion of the Aqueduct till December 1997. Thus according to the appellant it was entitled to have the time for execution of the contract extended till 30/4/1999 without levy of any damages. 6. The appellant had applied on 11/8/1995 and 11/9/1995 for extension of time for completion of the work in terms of Clause 5 of the contract. The same was granted by the respondents without prejudice to their rights to claim compensation and revision of rates. It was contended that various reasons for delay were intimated to the respondents from time to time and although the respondents had purported to grant provisional extensions without prejudice to levy the liquidated damages, such extension, according to the appellant are “extra contractual and without any legal effect”. 7. The appellant in such circumstances claims that it is entitled to full escalation of the price in terms of Clause 10-CC of the contract and for the purpose of operation of para 6 of the Clause 10-CC of the contract. 7. The appellant in such circumstances claims that it is entitled to full escalation of the price in terms of Clause 10-CC of the contract and for the purpose of operation of para 6 of the Clause 10-CC of the contract. The appellant in such circumstances made the following claims: CLAIM NO.1 : Final bill including escalation under clause 10CC: (a) Value of work measured till completion including extra items etc. Rs.23172235.56 (b) Escalation payable as per clause 10CC Rs. 4468910.00 (c) Total due as final payment (a+b) = Rs.27641145.56 (d) Less already paid vide R.A. Bill No.36 (-)Rs.25051920.00 (e) Payment due for the settlement of final bill (c-d) Rs. 2589225.56 Say Rs.2589226/- CLAIM NO. 2 :- Extra expenditure on overhead and establishment: (a) As per construction industry norms the cost of work includes 10% for overhead and establishment. Therefore based on the agreement cost and stipulated period for the completion the cost of overhead and establishment per month comes to: Contract amount x 10 x 1 --- – 100 20 = 18927120 x 10 = Rs.94635/- p.m. 100 x 20 Say 94600/- The work delayed for 19.90 month i.e. up to 30/5/1997 Extra expenditure incurred on overhead and establishment = 94600 x 19.00 = 1882540/- (b) Extra expenditure incurred on maintenance of contingent establishment at site from /6/97 to 30/4/99 @ 18500/- pm. = Rs.4,25,500/- Total a + b = Rs.23,08,040/- CLAIM NO: 3 :- Anticipated Profit: As per agreement the work costing Rs.18927120/- was to be completed within 20 month (6600 days).Normal profit to be earned on civil contract at the rate of 10% of value of work = Rs,1892712/- This was to be earned in 20 months. Hence monthly profit = 1892712 = 94636/- ----------- 20 Hence anticipated profit during the prolongation of Contract for 19.90 months = 94636 x 19.90 = Rs.1883256 CLAIM NO: 4 :- Extra expenditure incurred on the execution of work beyond stipulated date of completion on account of rise in cost of labour. The rates of agreement were based on the prevailing rates of labour and material in the month of opening the tender that is October 1992. The rates of agreement were based on the prevailing rates of labour and material in the month of opening the tender that is October 1992. WHOLESALE CONSUMER The cost index in the month of October 1992 232.40 244.00 The cost index in the month of October 1995 the stipulated dated of completion 297.20 319.00 The cost index as in April 1999 355.20 415.00 Value of work done till completion excluding escalation = Rs.2,27,02,116/- Less value of work executed upto the stipulated date of completion = Rs.1,47,40,363/- Value of work executed beyond the stipulated date of completion = Rs. 79,61,753/- Based on the index given above, the rise in cost of wholesale from 10/92 to 04/99 = 52.83% from 10/92 to 10/95 = 28.18 Average = 40.51% The rise in Consumer price index From 10/92 to 4/99 = 70.08 From 10/92 to 10/95 = 30.73 Average = 50.41 Taking weight age of 75 & 25% for material and labour, the average cost index for both material and labour comes to 40.51 x 75 + 50.41 x 25 ----------------------------- = 30.38 + 12.60 100 100 = 42.98 say 43% Extra expenditure for work executed beyond stipulated date of completion = 7961753 x 43 ---------------- = 3423553 100 Say Rs.34,23,550/- CLAIM NO.5:- Damages for idle machinery and equipment. The machinery and equipment was mobilized at site for the completion work costing Rs.18927120/- within 600 days Due to deviation and change of scope the actual cost of work changed to Rs.22702116/- Hence on priority basis the detention of machinery and equipment was justified for the work costing Rs.22702116/- for days = 600 x 22702116 ------------------- = 719 days 18927120 But on account of hindrance and delays the machinery was detained upto the date of completion that is 7/4/99 – 1897 days Hence following machinery & equipment remained idle for 1897-719 days = 1178 days (a) Loss suffered per day upto 30/5/97 (1) Concrete Mixer 3 nos @ Rs.600/- = 1800/- (2) Vibrator 6 nos. @ Rs.75/- = 450/- (3) Water pump 4 nos @ Rs.100/- = 400/- Total = 2650/- per days Loss upto 30/5/97 = 2650 x 478 = Rs.12,66,700/- (b) Loss suffered per day from 1/6/97 to 30/4/99 (1) Concrete Mixer @ Rs.600/- (2) Vibrator 1 nos. @ Rs.75/- (3) Water pump 1 no. @ Rs.75/- = 450/- (3) Water pump 4 nos @ Rs.100/- = 400/- Total = 2650/- per days Loss upto 30/5/97 = 2650 x 478 = Rs.12,66,700/- (b) Loss suffered per day from 1/6/97 to 30/4/99 (1) Concrete Mixer @ Rs.600/- (2) Vibrator 1 nos. @ Rs.75/- (3) Water pump 1 no. @ Rs.100/- ---------- Total Rs.775/- per day Loss from 1/6/97 to 30/4/99 = 775 x 700 = Rs,5,42,500/- Total loss a + b = Rs.18,09,200/- 8. The respondents resisted the suit inter alia on the ground that the delay was attributable to the appellant and not to the respondents. It was contended that the work was completed on 7/4/1999, as against the stipulated date in the contract i.e. 11/10/1995. It was contended that various factors attributable to the delay were not responsible for the ultimate completion of the work, as the appellant could have carried out the work of laying of the piers, notwithstanding the reference made to (MERI), Nasik. It was contended that there was inordinate delay on the part of the appellant in completing the work and the various extensions sought by the appellant were granted without prejudice to the right of the respondent to levy liquidated damages. It was contended that under Clause 12 of the contract the engineer-in-charge had reserved liberty to make alteration/additions or substitution for the original specification/drawings/designs and instructions that may be necessary, during the progress of the work looking to the fact that the work was of a highly technical nature. It was contended that as per Clause 12 of the contract, the appellant was bound to carry out the work in accordance with the instructions of the engineer in-charge. The respondents then went upon disputing each head of the claim made for reasons set out in the written statement. 9. It was contended that under the final bill the amount of Rs.19,43,720.85 has been paid to the appellant and yet another amount of Rs.3,78,46.35 was paid as escalation. According to the respondents there is an amount of Rs.3,92,153.98 recoverable from the appellant for which the respondents raised a counter claim. 10. On the basis of the rival pleadings the learned trial court raised the following issues : (i) Whether plaintiff proves that plaintiff is entitled to extension of Contract till 30/4/1999? According to the respondents there is an amount of Rs.3,92,153.98 recoverable from the appellant for which the respondents raised a counter claim. 10. On the basis of the rival pleadings the learned trial court raised the following issues : (i) Whether plaintiff proves that plaintiff is entitled to extension of Contract till 30/4/1999? (ii) Whether plaintiff proves that plaintiff is entitled to Rs.1,24,80,832.56 towards the work executed under the Contract?, If yes, (iii) Whether plaintiff is entitled to interest at the rate of 21% p.a.? (iv) Whether defendant proves that plaintiff is liable to pay sum of Rs.3,92,153.98 to the plaintiff? 11. At the trial the appellant examined Palvinder Singh Amar P.W.1 and Civil Engineer, Laxmikant Karmali, P.W.2 and produced several documents, except the contract. There was no oral evidence led on behalf of the respondent. 12. The learned trial court answered all the issues in the negative and dismissed the suit as well as the counter claim. The dismissal of the suit is subject matter of challenge in this appeal. The respondents have not filed any cross objection, in so far as the dismissal of their counter claim is concerned. 13. I have heard Shri Pangam, the learned counsel for the appellant and Ms. Linhares, the learned Additional Government Advocate for the respondents. With the assistance of the learned counsel for the parties, I have gone through the record. 14. It is submitted by Shri Pangam, the learned counsel for the appellant that there is enough evidence on record to show that the entire delay of 1349 days in completion of the work was attributable to the respondents. It is submitted that the appellant was entitled to extension of the contract till 30/4/1999. It is submitted that thus the issue no.1 ought to have been answered in the affirmative. In so far as the issue no.2 which is in respect of the monetary claim of the appellant, the learned counsel has taken me through the computation of the damages made under various heads as set out in the annexure to the plaint. He has referred to the escalation statement (Exhibit 144) in order to submit that the appellant would be entitled to the amount towards escalation of the material and labour cost for the period beyond the stipulated period of completion of the contract. He has referred to the escalation statement (Exhibit 144) in order to submit that the appellant would be entitled to the amount towards escalation of the material and labour cost for the period beyond the stipulated period of completion of the contract. The learned counsel has referred to the escalation statement which is prepared for each quarter from March 1993 to August 1998 in order to demonstrate that the compensation under Claim 1 would be payable. The learned counsel was at pains to point out that this is excluding the escalation of Rs.19.00 lakhs and odd paid to the appellant. 15. It is next submitted that claim no.2 pertains to expenditure on overheads and establishment and has been calculated on the normal construction industry norms where the cost includes 10% of overhead. It is submitted that the appellant was required to incur expenses on the maintenance of the contingent establishment from 1/6/1997 to 30/04/1999 and thus in addition to the expenditure on over heads and escalation for about 20 months would also be entitled to the expenditure incurred on the maintenance of the contingent establishment. It is submitted that the claim no.3 on account of loss of anticipated profit is also justified, inasmuch as the contract was required to be executed over the extended period, beyond the period of 600 days. It is submitted that the appellant is also entitled to the expenditure incurred towards rise in the cost of materials and labour as per the claim no.4 and lastly the damages as the machinery and equipment remained idle. He submits that the respondents had failed to lead any evidence and as such, the trial court ought to have decreed the suit as prayed. 16. On behalf of the respondents reliance is placed on the decision of the Supreme Court in the case of Food Corporation of India Vs. A. M. Ahmed & CO. and another (2006) 13 SCC 779 and K.N. Sathyapalan (dead) by Lrs. Vs. State of Kerala and anr. (2007) 13 SCC 43 ., in order to submit that where there is a delay in the execution of the contract which is not attributable to the contractor, the department would be liable to pay compensation/damages towards escalation of costs and other heads as claimed in the suit. Reliance is placed on the decision of this Court in the case of State of Goa Vs. Reliance is placed on the decision of this Court in the case of State of Goa Vs. Palvindar Singh in F.A. No.26/2008 decided on 2/3/2017 in which this Court had held that the contractor was entitled to 100% of the escalation in cost, for the period beyond stipulated date, in the agreement. He submitted that the trial court also erred in holding that one of the claims was barred by limitation although no such issue was raised. He, therefore, submits that the appeal be allowed. 17. On the contrary, the learned Additional Government Advocate has supported the impugned judgment. It is submitted that the report of the committee has not been challenged by the appellant and on the contrary it is the appellant who produced and relied upon the same during the course of his evidence. It is submitted that in the absence of a challenge to the report of the committee the appellant cannot now contend that he is entitled to extension till 30/4/1999. The learned Addl. Government Advocate has submitted that the appellant did not produce the contract before the trial court. The learned Addl. Government Advocate has submitted that the appellant sought as many as nine extensions which were granted without prejudice to the right of the respondents to levy liquidated damages. It is submitted that the appellant accepted all these extensions without any demur and continued with the contract and thus he cannot now turn around and claim compensation on the ground that there was delay which is attributable to the respondents. The learned Addl. Government Advocate has then questioned the individual heads of the different claims made in order to demonstrate that they are not admissible and cannot be granted. The learned Addl. Government Advocate also submitted that the claim would be barred by limitation. 18. I have carefully considered the rival circumstances and the submissions made. During the course of the arguments at bar it transpired that there are several rival submissions raised on behalf of the parties which have not been considered by the learned trial court. For instance, the trial court has noted that a copy of the agreement was not placed on record. During the course of the arguments at bar it transpired that there are several rival submissions raised on behalf of the parties which have not been considered by the learned trial court. For instance, the trial court has noted that a copy of the agreement was not placed on record. However, during the course of the arguments at bar, a copy of the said agreement was produced and referred to by both the parties which shows the that Clause 10-CC in a modified form was reintroduced under the contract. Thus the Claim no. I which is based on Clause 10-CC of the contract has to be considered on its own merits. There is a note appended to Clause 10-CC which shows that for the purpose of para 6 of Clause 10-CC the minimum basic wage of an unskilled labourer has to be reckoned at Rs.25/-. The learned counsel for the appellant submitted that as per the statutory notification applicable the rate at the relevant time was Rs.21/-. He has referred to the circular dated 6/3/1996 and 19/9/1991 and another circular dated 9/5/1996 in order to show that the minimum basic wage of an unskilled labourer was Rs.21/-. It was submitted that the difference in the calculation of the escalation under Clause 10-CC of the agreement is possibly due to the minimum basic wage being taken as Rs.25/- as against the prevailing rate of Rs.21/-. There are several other issues regarding the liability of the appellant to pay the royalty which has also not been considered by the learned trial court. At one stage this Court made an attempt to obtain the manner in which computation is made by the respondent/State whereunder the liquidated damages of Rs.19,43,720/- and another Rs.3,78,046/- have been paid towards the escalation. However, here again there was a difficulty on account of the fact that no evidence was led on behalf of the respondents before the trial court. This is a case which essentially turns upon the construction of the contract between the parties and the question whether the various claims made on behalf of the appellant are admissible. There are five claims set out in the annexure to the plaint and there are three other claims which the trial court has referred to. This is a case which essentially turns upon the construction of the contract between the parties and the question whether the various claims made on behalf of the appellant are admissible. There are five claims set out in the annexure to the plaint and there are three other claims which the trial court has referred to. A perusal of the impugned judgment shows that basically the trial court has gone on the evidence of P.W.2, who was an expert witness and the judgment does not show that the claims made under the various heads have been separately adverted to and considered. On hearing the learned counsel for the parties, in my considered view, the suit needs to be remanded back to the learned trial court for deciding it afresh in accordance with law. While doing so I am conscious of the fact that a suit of the year 2001 is required to be sent back. However, under the given circumstances, there appears to be no option than to send the suit back. In this regard the provisions of Order 41 Rule 23A of C.P.C may be noticed with profit. Under the said provision the powers of remand have been enlarged and the appellate court can remand the matter to the trial court if retrial is considered necessary. Here is a case which in my considered view requires a retrial with an opportunity being granted to the parties to produce oral and documentary evidence on record if so advised. 19. In such circumstances the following order is passed: ORDER: (i) The appeal is partly allowed. The impugned judgment and decree is hereby set aside. (ii) Special Civil Suit No.23/2001/B is remanded to the Court of the learned Senior Civil Judge at Panaji, for disposal according to law. (iii) The parties shall be entitled to produce documents and lead oral evidence, if any and if so advised. (iv) The trial court shall decide the suit as expeditiously as possible and preferably within a period of one year from the date of receipt of the order. (v) Parties to co operate for the time bound disposal of the suit. (vi) Parties to appear before the trial court on 6/3/2018. (vii) Rival contentions of the parties are left open. (viii) In the circumstances, there shall be no order as to costs.