JUDGMENT AND ORDER : M.R. Shah, J. Feeling aggrieved and dissatisfied by the impugned judgment and decree passed by the learned Judge, Commercial Court, Vadodara, in Commercial Civil Suit No.108/2016 (Old Case No.: Special Summary Suit No.77/2011) by which the learned Judge has partly decreed the said suit and has passed a decree against the appellants herein - original defendants for a sum of Rs.3, 61,33,579/- along with interest at the rate of 12% p.a. from the date of filing of the suit till the date of decree and 9% p.a. from the date of decree till realization of the amount, the original defendants have preferred the present First Appeal under Section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as "the Commercial Courts Act") read with Section 96 of the Code of Civil Procedure, 1908. 2. The facts leading to the present First Appeal in nutshell are as under: 2.1 That the respondent - original plaintiff (hereinafter referred to as the original plaintiff) initially filed summary suit against the appellants herein - original defendants, before the learned Civil Court for recovery of an amount of Rs.3,61,33,579/- along with interest thereon at the rate of 18% p.a. 2.2 That thereafter, on establishment of Commercial Court at Vadodara under the provisions of the Commercial Courts Act and as the dispute was a commercial dispute having value of more than rupees one crore, the said suit came to be transferred to the Commercial Court, Vadodara, which was numbered as Commercial Suit No.108/2016. 2.3 In the said suit, it was the case on behalf of the plaintiff and so averred in the Plaint that the plaintiff is a sole proprietor of M/s. Kesar Laminates and engaged in the business of rust preventive anti-corrosive work, stub strengthening and stub preparing work, stub repairing work and reconditioning work, 11 KV bus-bar insulation, IR value improvement and reconditioning etc. The plaintiff is working in the said field since long time and has been doing the work in several divisions in Gujarat area for Gujarat Energy Transmission Corp. Ltd. (for short "GETCO"). The defendant No.1 is company incorporated under the Companies Act, 1956 and is a State owned Corporation. The plaintiff is working in the said field since long time and has been doing the work in several divisions in Gujarat area for Gujarat Energy Transmission Corp. Ltd. (for short "GETCO"). The defendant No.1 is company incorporated under the Companies Act, 1956 and is a State owned Corporation. The defendant No.1 is engaged in transmission and distribution of electricity in the various parts of the State of Gujarat and defendant No. 2 to 4 are its officers looking after the main business, administration and management of the defendant No.1 Corporation. 2.4 It was the case of the plaintiff that an inquiry was sent to the plaintiff by the defendants in the year 2008 for rust preventive, anti-corrosive coating work, IR value improvements work, 11 KV bus-bar insulation work etc. and the plaintiff had agreed to execute the work for which the defendants had made inquiry on the rate clearly fixed between the parties. It was further the case of the plaintiff that all the work was done by the plaintiff for which payment was also made by the defendants at the relevant time and the entire amount was paid in respect of above referred work done by the plaintiff by the end of December, 2008. It was the case of the plaintiff that the plaintiff has completed the said work in the entire District of Kutchh and more particularly, in Nakhatrana division to the satisfaction of the defendants. It was further the case of the plaintiff that most of the work of the defendants are such that they require immediate attention and completion especially on account of electrification work mostly at remote places of Kutchh very close to border area, coastal and desert area etc. It was the case of the plaintiff that the common practice of the defendants was to call the plaintiff to do the work and thereafter they used to send inquiry and since the quotation of the earlier work were already with the defendants, they did not bother to call for the fresh quotation every time. The Executive Engineer of the respective divisions have power to get the work done upto Rs. The Executive Engineer of the respective divisions have power to get the work done upto Rs. 50, 000/- and it was the usual practice of the Executive Engineer to get the work done from the Contractors having experience and have carried out the work satisfactory in past and whose rates have been accepted and this was done by the Executive Engineers looking into the exigencies of the work and to get the work done on emergency basis. This was also the practice of the defendants because issuance of inquiry, calling for the tenders, finalizing the same and issuance of the work order was a very time consuming process and looking into the exigencies and emergency of the work, it was the normal practice in all the divisions to get the work done and therefore, the formal procedure of issuance of inquiry till issuance of work order was completed. It was further the ease of the plaintiff that whenever any maintenance was required, the Executive Engineer was taking shutdown and calling the contractors for the maintenance work. It was further the case of the plaintiff that such type of work was called for by Executive Engineer from the plaintiff number of times and after completing the formalities the work orders were issued and the payments were sanctioned and received by the plaintiff. 2.5 It was the case of the plaintiff that since it was a continuous work which was being done by the plaintiff, defendants used to tell the plaintiff orally to do the work and the plaintiff used to do that work without there being any formal contract. It was further case of the plaintiff that in all the cases, Site Engineer of GETCO used to certify the work done by the plaintiff and therefore, question of inquiry did not arise in all the cases. It was further the case of the plaintiff that as per the oral instructions of the Executive Engineer of Nakhatrana Division in Kutchh area, the plaintiff has completed the work amounting to the total Rs.2,54,76,700/- to the entire satisfaction of the defendants and the defendants have also certified for satisfactory completion of the work. 2.6 It was further the case of the plaintiff that after completion of work, the plaintiff received the inquiries for around 189 works and the plaintiff submitted the Tender for completing the formalities. 2.6 It was further the case of the plaintiff that after completion of work, the plaintiff received the inquiries for around 189 works and the plaintiff submitted the Tender for completing the formalities. However, for the said inquiries, the plaintiff did not receive the work orders and also did not receive inquiries for remaining completed work, for completing the formalities of issuance of work order, therefore, plaintiff wrote a letter dated 16.05.2009 to the defendant No.3 asking for the payment for the work completed by the plaintiff. Similarly, the plaintiff had also completed the work amounting to Rs.3,68,300/- for the Anjar Division of Kutchh, as per the verbal and oral instruction of the Executive Engineer, Anjar. 2.7 It was the case of the plaintiff that by a letter dated 09.10.2000, addressed to Executive Engineer (TR), Anjar, the plaintiff requested the defendants to make the payment for the work done by plaintiff and in response to the said letter, DE (Telecom) informed the Executive Engineer (TR), Anjar, to release the payment of the plaintiff because, the DE (Telecom) was holding the post of Executive Engineer at Anjar, when the entire work was carried out and completed by the plaintiff as per his instructions and orders. But in response to the said letter, the Executive Engineer (TR) did not take any action for making the payment of the plaintiff. Thereafter, several letters were sent to the defendants requesting them to make the payment of the work done satisfactorily by the plaintiff. In response to the said requests, the Chief Engineer (Transmission) replied that the plaintiff is not entitled to get any amount as the work orders have not been issued for the work done by the plaintiff. The stand taken by the defendants for not making the payment to the plaintiff for the work which is already carried out is highly illegal, untenable and unlawful. 2.8 It was further the case of the plaintiff that the defendant being a State Government Corporation has no right to withhold the payment of the contractor who has carried out and completed the work to the utmost satisfaction of the defendants and therefore, defendants have no right to deny the payment on the technical ground of non-issuance of the work orders. It was the case of the plaintiff that the plaintiff has spent huge amount towards wages, materials, chemicals and other required equipments. It was the case of the plaintiff that the plaintiff has spent huge amount towards wages, materials, chemicals and other required equipments. It was further the case of the plaintiff that the plaintiff had carried out the work as per oral and verbal instructions of the defendants No. 3 and 4 and their responsible officers, meaning thereby that there was an implied contract between the parties. The defendant No.1 Corporation is a 'State' within the meaning of Article 12 of the Constitution of India and the State is not allowed to get unjust enrichment and that too, at the cost of the contractor who has completed and carried out the work to the satisfaction of the defendants. Therefore, the plaintiff is legally entitled to claim and recover the amount of Rs.2,54,76,700/- for the work carried out at Nakhatrana Division of Kutchh and Rs.3,68,300/- for the work carried out in Anjar Division of Kutchh and the defendants have not refunded the earnest money deposit of Rs.10, 870/- which the plaintiff has paid with the tenders of Anjar Division. 2.9 It was further the case of the plaintiff that the plaintiff had sent several letters to the officers of the defendants including Chairman, but the plaintiff did not receive any payment. On the contrary, the defendant No.1 took a drastic and unconstitutional step of blacklisting the plaintiff from doing any contractual work of the defendant No.1. Therefore, plaintiff served a notice to the defendants through his lawyer on 06.05.2010, for the work done at Nakhatrana and on 08.05.2010, for the work done at Anjar, calling upon the defendants to make the payment of the outstanding amount and in the alternative to appoint an Arbitrator for resolving the disputes. Even after receipt of the said notices, the defendants did not make the payment nor did they appoint the Arbitrator but sent evasive reply through their advocate and in the said reply defendants took a single contention that the work orders in favour of the plaintiff have not been given and therefore, plaintiff is not entitled to any amount. Even after receipt of the said notices, the defendants did not make the payment nor did they appoint the Arbitrator but sent evasive reply through their advocate and in the said reply defendants took a single contention that the work orders in favour of the plaintiff have not been given and therefore, plaintiff is not entitled to any amount. It was further the case of the plaintiff that for the appointment of Arbitrator, the plaintiff approached the Hon'ble High Court of Gujarat by filing Arbitration petition but the said petitions have been dismissed by the Hon'ble High Court stating that there is no arbitration agreement between the parties and therefore, this suit has been filed for the recovery of outstanding amount of Rs.2,54,76,700/- along with interest from the defendants for the work which is carried out and completed by the plaintiff as per the verbal and oral instructions and to the satisfaction of the defendants. 2.10 In the above background, the plaintiff instituted the aforesaid suit for recovery of outstanding amount of Rs.2,54,76,700/- as well as interest thereon and also for an amount of Rs.3,68,300/- for the work carried out in Anjar Division of Kutchh and also for refund of earnest money deposit of Rs.10,870/- which the plaintiff has paid with the tenders of Anjar Division. 3. The summonses of the suit were issued to the defendants and in pursuance thereto, the defendants put their appearance through their learned advocate. At this stage, it is required to be noted that before the Civil Court, on the Purshis filed by the learned advocate for the plaintiff, the summary suit was converted into ordinary suit. Therefore, the learned advocate for the defendants filed a Purshis to treat the application for leave to defend at Ex.11 as written statement at Ex.11. Therefore, the application for leave to defend was treated as written statement of the defendants and reply to the application for leave to defend filed by the plaintiff was treated as rejoinder. 4. The defendants, in their written statement, denied all the averments made in the Plaint. It was the specific case on behalf of the defendants that the work carried out by the plaintiff was without authority and there was no contract and/or work order in favour of the plaintiff. 4. The defendants, in their written statement, denied all the averments made in the Plaint. It was the specific case on behalf of the defendants that the work carried out by the plaintiff was without authority and there was no contract and/or work order in favour of the plaintiff. It was submitted that as per the procedure to be followed, the work order/contract can be given only on inviting the tenders. It was submitted that the concerned Executive Engineer, on whose alleged instruction, oral and verbal to do the work, the plaintiff started the work, was not having any authority. The defendants also denied that the plaintiff has completed the work amounting to Rs.2,54,76,700/- to the entire satisfaction of the defendants. It was also specifically denied that the defendants have certified for satisfactory completion of work. That in fact, there was no work order issued by the defendants and therefore, there is no contractual agreement between the defendants and the plaintiff and hence, there was no question of works and issuance of any certificate regarding the works. The defendants also denied the allegation made in Paragraph 9 of the Plaint and contended that the plaintiff had not completed the work amounting to Rs.3,68,300/- for Anjar Division as per the verbal and oral instructions of the Executive Engineer, Anjar. 4.1 It was contended by the defendants that as per the purchase policy and its principles which are particularly applied for transmission of electricity, first of all inquiry must be done by issuing tender i.e. limited/advertised tenders for the budgetary offer from the agencies which is limited to minimum three parties. Thereafter the said offer received in sealed cover which are to be opened on opening date and after technical scrutiny only the price bids of those who are techno-commercially qualified will be opened and thereafter lowest bidder is to be ordered and for that, detail note to be prepared by Dy. Engineer (Technical) and approved of the same is to be taken as per the delegation of powers for which internal audit is to be scrutinized. Engineer (Technical) and approved of the same is to be taken as per the delegation of powers for which internal audit is to be scrutinized. So, after following the terms and conditions of the said purchase policy, work orders are to be issued for which security deposit @ 10% is to be deposited by the party and then and then only any type of work can be started as per work order and after completion of the said work, the defendants make the measurement with the details of the work done and then only the payments are to be paid by AC Payee cheque only to the party. So there being the compulsory implementation of the purchase policy and contract principle as per the delegation of powers, the defendants cannot issue any work order without following the above said purchase policy and procedure and therefore, no question of verbal or oral instruction or implied contract arises. Thus, the suit of the plaintiff is totally false, vexatious and fabricated and against the principle of the law, particularly against the terms and conditions of purchase policy of present defendants and hence plaintiff is not entitled for any amount as described in para 17 of the plaint from the defendants and the present suit deserves to be dismissed. 5. Against the reply of the defendants, the plaintiff filed reply to the application at Ex.17 which was treated as rejoinder. In the said rejoinder, the plaintiff denied the contents of the written statement filed by the defendants and contended that the GETCO is engaged in transmission network of electricity and they are maintaining all the sub-stations including equipments, transformers, tower lines and day to day maintenance of the line work. It was denied that the defendants have followed the terms and conditions of purchase orders given to the present plaintiff in 2008. It was also denied that the inquiry comes first and then the work order and thereafter, only work completed date comes. It was submitted that the statement and details given in page Nos. 5 and 6 of the Plaint are correct and the same can be verified with the records available with the particular sub-division. The plaintiff reiterated that it had completed the work amounting to Rs.2,54,76,799/- and denied that the statement given in Para 7 of the Plaint is false, incorrect and misleading. 5 and 6 of the Plaint are correct and the same can be verified with the records available with the particular sub-division. The plaintiff reiterated that it had completed the work amounting to Rs.2,54,76,799/- and denied that the statement given in Para 7 of the Plaint is false, incorrect and misleading. It was submitted that the plaintiff has not violated any principle or rule of the purchase policy and in fact, the defendants have got the benefit of the work executed by the plaintiff and while making the payment of the said work they are coming with the false excuse of not following the purchase policy. The excuse raised by the defendant is illegal and thereby the plaintiff cannot be deprived of his legitimate dues. It was denied that the work which is described in para 5 of the plaint, was completed after following the norms of purchase policy. The plaintiff has given all the details regarding date of completion, date of issuance of inquiry and date of issuance of work order. The crucial date is the date of completion of work for which the record is with the defendants. If the defendants produce the said record it can be easily verified that the work orders were issued after the completion of the work. Thus, the plaintiff is entitled to the claim described in para 17 of the Plaint. 6. That thereafter, the learned Commercial Court framed the following issues at Ex.106: "1. Whether the plaintiff proves that the defendant has awarded the work of rust preventive anti-corrosive coating work, IR Value improvement work, 11 KV bus-bar insulation work to him ? 2. Whether the plaintiff proves that the plaintiff has carried out the work as per oral and verbal instructions of the Executive Engineer of Nakhatrana Division of Kutch area? 3 Whether the plaintiff proves that the plaintiff has completed the work in Anjar Division of Kutch as per oral and verbal instructions of the Executive Engineer, Anjar? 4. Whether the plaintiff proves that the plaintiff is entitled to recover a sum of Rs.3,61,33,579/- on account of the work done by the plaintiff from the defendant? 5. Whether the plaintiff is entitled to recover the interest? If yes, on what amount and at what rate? 6. Whether the defendant proves that the plaintiff has not carried out the work as alleged by the plaintiff ? 7. 5. Whether the plaintiff is entitled to recover the interest? If yes, on what amount and at what rate? 6. Whether the defendant proves that the plaintiff has not carried out the work as alleged by the plaintiff ? 7. Whether the plaintiff proves that the common practice of the defendant was to get the work done and thereafter send inquiry and thereafter calling for the tender? 8. Whether the defendant proves that the plaintiff has not followed the terms and conditions of the purchase policy of the defendant ? If yes, then what effect ? 9. What order and decree ?" 7. That both the parties thereafter led the evidence, oral as well as documentary. 7.1 The plaintiff led the following oral as well as documentary evidence: ORAL EVIDENCE: Exh.109 Deposition in form of affidavit in lieu of Examination in Chief under Order-18 Rule-4 of CPC tendered by Mr. Sunilkumar Jethalal Patel and his Cross examination Exh.162 Deposition in form of affidavit in lieu of Examination in Chief under Order-18 Rule-4 of CPC tendered by Mr. Bhumeshkumar Manharlal Panchal and his Cross examination. Exh.164 Deposition in form of affidavit in lieu of Examination in Chief under Order-18 Rule-4 of CPC tendered by Mr. Keyur Devshibhai Visana and his Cross examination. Exh.165 Deposition in form of affidavit in lieu of Examination in Chief under Order-18 Rule-4 of CPC tendered by Mr. Hirenkumar Ramanbhai Patel and his Cross examination. DOCUMENTARY EVIDENCE: Exh. 38 Original letter No. KL/014 dated 16/05/2009 written by plaintiff to Ex. Engineer, Nakhatrana Exh. 39 Original letter No. KL/017 dated 16/05/2009 written by plaintiff to Ex. Engineer, Nakhatrana. Exh. 40 Original le tter No. KL/027 dated 01/07/2009 written by plaintiff to SE (TR), A njar. Exh. 41 Original letter No. KL/028 dated 01/07/2009 written by plaintiff to SE (TR), Anjar Exh. 42 Photocopy of letter dated 03/07/2009 written by Ex. Engineer (TR), Nakhatrana to plaintiff Exh. 43 Original letter No. KL/032 written by plaintiff to Ex. Engineer (TR), Nakhatrana dated 08/07/2009 Exh. 44 Original letter dated 09/10/2009 written by plaintiff to Ex. Engineer (TR), Anjar Exh. 45 Original letter No. KL/038 dated 15/10/2009 written by plaintiff to MD of Defendant No.1 Exh. 46 Original letter No. KL/042 dated 29/10/2009 written by plaintiff to MD of Defendant No.1 Exh. 47 Photocopy of letter dated 11/11/2009 written by MD of defendant No.1 to plaintiff Exh. Engineer (TR), Anjar Exh. 45 Original letter No. KL/038 dated 15/10/2009 written by plaintiff to MD of Defendant No.1 Exh. 46 Original letter No. KL/042 dated 29/10/2009 written by plaintiff to MD of Defendant No.1 Exh. 47 Photocopy of letter dated 11/11/2009 written by MD of defendant No.1 to plaintiff Exh. 48 Original letter dated 30/11/2009 written by plaintiff to C.E. (TR) of defendant No.1 Exh. 49 Original letter dated 17/12/2009 written by plaintiff to C.E. (TR) to plaintiff. Exh. 50 Office copy of notice dated 06/5/2010 sent by plaintiff through adv. Mr. Rohit E.Majmudar to defendant Exh. 51 Office copy of notice dated 06/5/2010 sent by plaintiff through adv. MI. Rohit E.Majmudar to defendant Exh. 52 Original reply of notice dated 06/05/2010 given by defendants through their advocate Dr. Lilu K, Bhaya to the plaintiff on 29/06/2010 Exh. 53 Original reply of notice dated 08/05/2010 given by defendants through their advocate Dr. Lilu K, Bhaya to the plaintiff on 29/06/2010 Exh. 54 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 02/12/2008 Exh. 55 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 02/12/2008 Exh. 56 Original work order given by defendant No.1 to plaintiff after completion dated 15/10/2008 Exh. 57 to Exh. 60 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 30/07/2008 Exh. 61 and Exh. 62 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 21/08/2008 Exh. 63 to Exh. 65 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 03/11/2008 Exh. 66 to Exh. 71 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 15/10/2008 Exh. 72 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 16/10/2008 Exh. 73 to Exh. 77 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 17/10/2008 Exh. 78 Original inquiry given by defendant No.1 (Anjar Trans Division) to plaintiff dated 29/11/2008 Exh. 79 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 02/01/2009 Exh. 80 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 01/01/2009 Exh. 78 Original inquiry given by defendant No.1 (Anjar Trans Division) to plaintiff dated 29/11/2008 Exh. 79 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 02/01/2009 Exh. 80 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 01/01/2009 Exh. 81 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 29/11/2008 Exh. 82 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 05/12/2008 Exh. 83 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 05/12/2008 Exh. 84 Original Work order given by defendant No. 1 to plaintiff after completion of work dated 29/11/2008 Exh. 112 Original letter written by plaintiff to Ex. Engineer (TR), Anjar dated 06/10/2009 Exh. 113 Original purchase order along with Memorandum of Minutes dated 21/07/2008 Exh. 114 Original purchase order along with Memorandum of Minutes dated 23/07/2008 Exh. 115 and Exh. 116 Original purchase order along with Memorandum of Minutes dated 28/07/2008 Exh. 117 Original purchase order along with Memorandum of Minutes dated 19/09/2008 Exh. 118 Original purchase order along with Memorandum of Minutes dated 24/03/2009 Exh. 119 Original purchase order along with Memorandum of Minutes dated 08/05/2009 Exh. 120 Original purchase order along With Memorandum of Minutes dated 28/08/2008 Exh. 121 Original purchase order along with Memorandum of Minutes dated 18/04/2009 Exh. 122 Original purchase order along with Memorandum of Minutes dated 23/09/2009 Exh. 123 Original purchase order along with Memorandum of Minutes dated 11/05/2009 Exh. 124 Original purchase order along with Memorandum of Minutes dated 11/05/2009 Exh. 125 Original purchase order along with Memorandum of Minutes dated 08/06/2009 Exh. 126 Original purchase order along with Memorandum of Minutes dated 31/08/2009 Exh. 127 Original purchase order along with Memorandum of Minutes dated 12/06/2009 Exh. 128 Original purchase order along with Memorandum of Minutes dated 20/06/2009 Exh. 129 and Exh. 130 Original purchase order along with Memorandum of Minutes dated 23/06/2009 Exh. 131 Original purchase order along with Memorandum of Minutes dated 26/06/2009 Exh. 132 Original purchase order along with Memorandum of Minutes dated 08/04/2009 Exh. 133 Original purchase order along with Memorandum of Minutes dated 31/07/2009 Exh. 134 Original purchase order along with Memorandum of Minutes dated 16/09/2009 Exh. 135 Original purchase order along with Memorandum of Minutes dated 05/10/2009 Exh. 131 Original purchase order along with Memorandum of Minutes dated 26/06/2009 Exh. 132 Original purchase order along with Memorandum of Minutes dated 08/04/2009 Exh. 133 Original purchase order along with Memorandum of Minutes dated 31/07/2009 Exh. 134 Original purchase order along with Memorandum of Minutes dated 16/09/2009 Exh. 135 Original purchase order along with Memorandum of Minutes dated 05/10/2009 Exh. 136 Original purchase order along with Memorandum of Minutes dated 23/10/2009 Exh.137 Original Work Completion Certificate given by Jr.Engineer of defendant No.1 Nakhatrana dated 19/01/2009 Exh.138 Original Work Completion Certificate given by Jr.Engineer of defendant No.1 Nakhatrana dated 12/11/2008 Exh.139 Original Work Completion Certificate given by Jr.Engineer of defendant No.1 Nakhatrana dated 16/02/2009 Exh.140 Original Work Completion Certificate given by Jr.Engineer of defendant No.1 Nakhatrana dated 10/01/2009 Exh.141 Original Work Completion Certificate given by Jr.Engineer of defendant No.1 Nakhatrana dated 27/12/2008 Exh.142 Original Work Completion Certificate given by Jr.Engineer of defendant No.1 Nakhatrana dated 03/12/2008 Exh.143 Original Work Completion Certificate given by Jr.Engineer of defendant No.1 Nakhatrana dated 26/03/2009 Exh.144 and Exh.145 Original purchase order given by defendant No.1 to plaintiff dated 17/11/2009 Exh.146 Original work order given by defendant No.1 to plaintiff dated 20/11/2008 Exh.147 and Exh.148 Original work order given by defendant No.1 to plaintiff dated 27/11/2008 Exh.149 Original purchase order given by defendant No.1 to plaintiff dated 27/11/2008 Exh.150 Original purchase order given by defendant No.1 to plaintiff dated 30/01/2009 Exh.151 Original work order given by defendant No.1 to plaintiff dated 20/11/2008 Exh.152 Original purchase order given by defendant No.1 to plaintiff dated 29/11/2008 Exh.153 Original work order given by defendant No.1 to plaintiff dated 01/01/2009 Exh.154 and Exh.155 Original purchase order given by defendant No.1 to plaintiff dated 04/12/2008 Exh.156 and Exh.157 Original work order given by defendant No.1 to plaintiff dated 10/12/2008 Exh.158 Original work order given by defendant No.1 to plaintiff dated 01/01/2009 Exh.159 and Exh.160 Original day to day Diary maintained by plaintiff for the work done by plaintiff Exh.161 Original photographs of work done by the plaintiff for the defendants (37 photos) 7.2 The defendants led the following oral as well as documentary evidence: ORAL EVIDENCE: Exh.167 Deposition in form of affidavit in lieu of Examination in Chief under Order 18 Rule 4 of CPC tendered by Mr.Jayeshkumar Natvarlal Jain and cross examination Exh.168 Deposition in form of affidavit in lieu of Examination in Chief under Order 18 Rule 4 of CPC tendered by Mr.Pradipsinah Parbatsinah Dodiya and cross examination DOCUMENTARY EVIDENCE: Exh.85 Original purchase order No.18827 dated 21/07/2008 Exh.86 Original certificate for works final bill dated 02/08/2008 Exh.87 Original buyer copy dated 04/08/2008 Exh.88 Original purchase order No.18964 dated 23/07/2008 Exh.89 Original agreement for PO No.18964 dated 01/09/2008 Exh.90 Original tax invoice dated 28/07/2008 Exh.91 Original purchase order No.19169 dated 28/07/2008 Exh.92 Original agreement for PO No.19169 dated 01/09/2008 Exh.93 Original purchase order No.19170 dated 28/07/2008 Exh.94 Original agreement for PO No.19170 dated 01/09/2008 Exh.95 Original purchase order No.21544 dated 19/09/2008 Exh.96 Original purchase order No.30527 dated 24/03/2009 Exh.97 Original purchase Order No.32352 dated 08/05/2009 Exh.98 Original tax invoice No.TI-185 dated 09/09/2008 Exh.99 Original acceptance of Tender dated 23/09/2008 Exh.100 Original purchase order No.33890 dated 29/05/2009 Exh.101 Original purchase order No.33886 dated 29/05/2009 Exh.102 Original Tax invoice No.TI-031 dated 13/06/2009 Exh.103 Original Acceptance of quotation (O.W. No.1221) dated 20/06/2009 Exh.104 Original purchase order No.39098 dated 05/10/2009 Exh.105 Original Retail invoice No.RI-060 dated 08/10/2009 Exh.169 Original Measurement book for works book No.55, page 71 work completed date 08/12/2008 Exh.170 Original Measurement book for works book No.55, page 66 work completed date 08/12/2008 Exh.171 Original Measurement book for works book No.3260, page 97 work completed date 15/10/2008 Exh.172 Original Measurement book for works book No.51, page 93 work completed date 15/08/2008 Exh.173 Original Measurement book for works book No.51, page 91 Exh.174 Original Measurement book for works book No.51, page 95 work completed date 12/08/2008 Exh.175 Original Measurement book for works book No.51, page 94 work completed date 12/08/2008 Exh.176 Original Measurement book for works book No.3260, page 139 work completed date 03/11/2008 Exh.177 Original Measurement book for works book No.3260, page 141 work completed date 03/11/2008 Exh.178 Original Measurement book for works book No.3260, page 140 work completed date 03/11/2008 Exh.179 Original Measurement book for works book No.3260, page 99 work completed date 15/10/2008 Exh.180 Original Measurement book for works book No.3260, page 100 work completed date 15/10/2008 Exh.181 Original Measurement book for works book No.3260, page 101 work completed date 15/10/2008 Exh.182 Original Measurement book for works book No.3260, page 102 work completed date 15/10/2008 Exh.183 Original Measurement book for works book No.3260, page 103 work completed date 15/10/2008 Exh.184 Original Measurement book for works book No.3260, page 104 work completed date 15/10/2008 Exh.185 Original Measurement book for works book No.3260, page 113 work completed date 16/10/2008 Exh.186 Original Measurement book for works book No.3260, page 117 work completed date 17/10/2008 Exh.187 Original Measurement book for works book No.3260, page 121 work completed date 17/10/2008 Exh.188 Original Measurement book for works book No.3260, page 123 work completed date 17/10/2008 Exh.189 Original Measurement book for works book No.3260, page 127 work completed date 17/10/2008 Exh.190 Original Measurement book for works book No.3260, page 128 work completed date 18/10/2008 Exh.191 Paper for IM 1450 W.O. 1606 dated 03/11/2008 Exh.192 Paper for IM 1526 W.O. 1609 dated 03/11/2008 Exh.193 Paper for IM 1499 W.O. 1607 dated 03/11/2008 Exh.194 Paper for IM 987 W.O. 1051 dated 12/08/2008 Exh.195 Paper for IM 974 W.O. 10149 dated 12/08/2008 Exh.196 Paper for IM 975 W.O. 1050 dated 12/08/2008 8. Thereafter, on appreciation of evidence and considering the material on record, the learned Commercial Court has answered the Nos.1 to 5 and 7 in the affirmative and Issues No.6 and 8 in the negative. On appreciation of evidence, the learned Commercial Court has held that the plaintiff has proved that it has carried out the work as per oral and verbal instructions of Executive Engineer of Nakhatrana. On appreciation of evidence, the learned Commercial Court has further held that it was the practice prevailing that the works were got done by the defendants on oral/verbal instructions which came to be accepted the payments were made. The learned Commercial Court specifically observed and held that the plaintiff has proved that the common practice of the defendant was to get the work done and thereafter send the inquiry and thereafter calling for the tender. However, thereafter, after holding so, the learned Commercial Court has passed the decree for the entire amount as claimed in the suit without any further discussion of evidence with respect to the entitlement of the entire amount as claimed and has passed the impugned judgment and decree which is the subject matter of the present First Appeal. 9. Shri S.P.Hasurkar, learned advocate, has appeared on behalf of the appellants - original defendants and Shri Unmesh D. Shukla, learned advocate, has appeared on behalf of the original plaintiff. 9.1 Shri Hasurkar, learned advocate appearing on behalf of the appellants - original defendants, has vehemently submitted that in the facts and circumstances of the case, the learned trial court has materially erred in allowing the suit and passing the decree of Rs.3,61,33,579/- against the appellants - original defendants. 9.2 Shri Hasurkar, learned advocate appearing on behalf of the appellants - original defendants, has vehemently submitted that while allowing the suit, the learned trial Court has not properly appreciated the fact that there was no work order in favour of the plaintiff; that the Executive Engineer at whose instance the plaintiff carried out the work had powers only to grant works upto Rs.50,000/- and therefore, any work carried out by the plaintiff pursuant to the instructions of the said Executive Engineer was absolutely unauthorized and contrary to the purchase policy. It is submitted that therefore, the learned trial Court has materially erred in holding the defendants liable to pay the amount for the work done/alleged to have been done by the plaintiff on the oral instructions of the Executive Engineer, who as such had no power to grant the works beyond Rs.50,000/-. 9.3 It is further submitted by Shri Hasurkar, learned advocate appearing on behalf of the appellants - original defendants, that the learned trial Court has materially erred in not properly appreciating the provisions of Section 70 of the Indian Contract Act in its correct perspective. It is submitted by Shri Hasurkar that even applying Section 70 of the Indian Contract Act to the facts of the case on hand, the plaintiff at the most shall be entitled to the compensation. It is submitted that therefore, the learned trial Court has materially erred in passing the decree for the alleged work done for an amount of Rs.2,54,76,700/-. 9.4 It is further submitted by Shri Hasurkar, learned advocate appearing on behalf of the appellants - original defendants that even otherwise, the learned trial Court has materially erred in passing the decree of Rs.2,54,76,700/- for the work alleged to have been done by the plaintiff. It is submitted that the plaintiff, in fact, has not proved by leading cogent evidence that the plaintiff in fact had done/carried out work valuing Rs.2,54,76,700/-. 9.5 It is further submitted by Shri Hasurkar, learned advocate appearing on behalf of the appellants - original defendants that the learned trial Court has straightaway and mechanically allowed the claim of the plaintiff of Rs.2,54,76,700/- for the work alleged to have been done by the plaintiff. 9.6 It is further submitted by Shri Hasurkar, learned advocate appearing on behalf of the appellants - original defendants that as such, there is no discussion and/or appreciation of evidence with respect to the claim of Rs.2,54,76,700/- and whatever is claimed by the plaintiff, the same is straightaway awarded without even proving by the plaintiff that in fact the plaintiff had carried out the work valuing Rs.2,54,76,700/-. 9.7 It is further submitted by Shri Hasurkar, learned advocate appearing on behalf of the appellants - original defendants that even otherwise, the learned trial Court has materially erred in passing the decree of Rs.1,02,77,709/- towards interest on the amount of Rs.2,54,76,700/-, i.e. @ 18% p.a. It is submitted that the original plaintiff, during the trial, has failed to prove, the basis on which it would be entitled to interest @ 18% p.a. 9.8 It is further submitted by Shri Hasurkar, learned advocate appearing on behalf of the appellants - original defendants that the learned trial Court has erred in believing that previously, in some cases, where inquiries were made and purchase orders were received, the same were issued subsequent to the completion of work and therefore, the same would also have occurred in the present case also. 9.9 It is further submitted by Shri Hasurkar, learned advocate appearing on behalf of the appellants - original defendants that the learned trial Court has materially erred in believing the case of the plaintiff that all works which the plaintiff had undertaken were required to be done on emergency basis. It is submitted that as such, all such works were regularly maintenance works and the officers of the defendant have, in order to circumvent the purchase policy, got the work done unauthorisedly by the plaintiff for which the appellant - Corporation shall not be liable to make any payment for such unauthorized work. 9.10 Making the above submissions and relying upon the decision of the Hon'ble Supreme Court in the case of State of West Bengal v. B. K. Mondal, (1962) AIR(Supreme Court) 113 (on applicability of Section 70 of the Contract Act), it is requested to allow the present appeal. 10. The present appeal is vehemently opposed by Shri Unmesh D. Shukla, learned advocate appearing on behalf of the original plaintiff. 10.1 Shri Shukla, learned advocate appearing for the original plaintiff, has vehemently submitted that in the facts and circumstances of the case, the learned trial Court has rightly passed the decree in favour of the plaintiff and the original defendants. 10.2 It is submitted by Shri Shukla, learned advocate appearing for the original plaintiff, that as such, the findings recorded by the learned trial Court while passing the decree are on appreciation of evidence. 10.2 It is submitted by Shri Shukla, learned advocate appearing for the original plaintiff, that as such, the findings recorded by the learned trial Court while passing the decree are on appreciation of evidence. 10.3 It is further submitted by Shri Shukla, learned advocate appearing for the original plaintiff, that in fact, the plaintiff carried out work as per the oral contract/instructions of the Executive Engineer/concerned Officer which was a practice prevailing, namely, the purchase orders are issued subsequent to the completion of the work. 10.4 It is further submitted by Shri Shukla, learned advocate appearing for the original plaintiff, that in the present case, in fact, the plaintiff had led the evidence by examining one Shri H.R. Patel at Ex.164 and one Shri Keyur Devji Visana at Ex.164. It is submitted that the plaintiff examined to prove the unpaid work related to Nakhatrana Division, Shri H.R.Patel at Ex.165 and also produced on record the work completion Certificate. It is further submitted that for the dues of the work carried out under the Anjar Division, the plaintiff examined one Shri Keyur Devji Visana at Ex.164, who certified the work carried out for Rs.3, 68, 300/-. It is submitted that therefore, in the present case, the plaintiff specifically led the evidences with respect to and in relation to the work undertaken and carried out by the plaintiff in Nakhatrana Division as well Anjar Division. 10.5 It is further submitted by Shri Shukla, learned advocate appearing for the original plaintiff, that in fact, it has come on record/evidence that the plaintiff carried out the work during shut-out period, which could not have been done without the knowledge of the Corporation/Officers of the defendant-Corporation. 10.6 It is further submitted by Shri Shukla, learned advocate appearing for the original plaintiff, that as the work undertaken/carried out by the plaintiff was not gratuitous and in fact it was also not the case on behalf of the plaintiff that the work carried out/undertaken by the plaintiff was gratuitous, the learned trial Court has rightly invoked/applied Section 70 of the Contract Act and has rightly passed a decree for the dues with respect to the work carried out/done. 10.7 Making the above submissions, it is requested to dismiss the present appeal. 11. Heard learned advocates appearing for the respective parties at length. 10.7 Making the above submissions, it is requested to dismiss the present appeal. 11. Heard learned advocates appearing for the respective parties at length. We have considered and gone through in detail, the impugned judgment and decree passed by the learned Commercial Court. We have re-appreciated the entire evidence on record from the Record and Proceedings received from the learned Commercial Court. 12. At the outset, it is required to be noted that the original plaintiff instituted the suit for recovery of Rs.3,61,33,579/- from the defendants and the claim comprises of Rs.2,54,76,700/- in respect of the work undertaken by the plaintiff at Nakhatrana Division and Rs.1,02,77,709/- towards the interest on the aforesaid principal amount @ 18% p.a. (presuit period) and Rs.3,68,300/- in respect of the outstanding dues for the work done for Anjar Division. That by the impugned judgment and decree, the learned Commercial Court has decreed the suit in toto. 13. It is the case on behalf of the appellants - original defendants that as there was no specific work order by the Corporation in favour of the plaintiff which was required as per the purchase policy and as the officer - Executive Engineer at whose oral instructions the plaintiff had undertaken the work was not having the authority to get the work done beyond Rs.50, 000/-, the defendants are not liable to pay any amount. However, it was the case on behalf of the plaintiff that it was the consistent practice in the Corporation to get the work done even before the actual purchase/work orders are issued and thereafter many a times after getting the work done and/or after commencement of the work, the purchase orders/work orders are issued. For the aforesaid, the plaintiff led numerous evidences. That the plaintiff also invoked Section 70 of the Contract Act and submitted that as the work done/carried out by the plaintiff was not gratuitous work and therefore also the plaintiff shall be entitled to amount in respect of the work done in light of Section 70 of the Contract Act. 14. For the aforesaid, the plaintiff led numerous evidences. That the plaintiff also invoked Section 70 of the Contract Act and submitted that as the work done/carried out by the plaintiff was not gratuitous work and therefore also the plaintiff shall be entitled to amount in respect of the work done in light of Section 70 of the Contract Act. 14. That on appreciation of evidence, both documentary as well as oral, more particularly, the documentary evidences produced at Ex.113 to 143 and the deposition of the plaintiff witness, PW-3 Shri Keyur Devji Visana examined at Ex.164 and the deposition of plaintiff witness, PW4 Shri H.R.Patel examined at Ex.165, and other evidences, the learned Commercial Court has specifically observed and held that the plaintiff had carried out the work as per the oral instructions/oral contract. The learned Commercial Court has also observed and held that the plaintiff has proved with respect to the completion of the work by producing documentary evidences, more particularly, the completion certificates (MoM). On appreciation of evidence, the learned Commercial Court has observed and held that as on completing the work the shut-down was required and the work could not be done without taking the shut-down and therefore, it is not possible for the plaintiff to complete the work without the consent of the defendants. It is an admitted position that when the plaintiff carried out the work, there was a shut-down, which could not have been without the consent of and/or knowledge of the defendants. Thus, on appreciation of evidence, the learned Commercial Court has rightly held that the defendants had awarded the work to the plaintiff orally and the plaintiff had completed the work of repairs both for Nakhatrana Division and Anjar Division. The findings recorded by the learned Commercial Court are on appreciation of evidence. On re-appreciation of the entire evidence on record, we are of the opinion that the findings recorded by the learned Commercial Court on appreciation of evidence are neither perverse nor contrary to the evidence on record. The findings recorded by the learned Commercial Court on Issues No.1, 2, 3, 6, 7 and 8 are on appreciation of evidence. We concur with the findings recorded by the learned Commercial Court on Issues No.1, 2, 3, 6, 7 and 8. 15. The findings recorded by the learned Commercial Court on Issues No.1, 2, 3, 6, 7 and 8 are on appreciation of evidence. We concur with the findings recorded by the learned Commercial Court on Issues No.1, 2, 3, 6, 7 and 8. 15. Now so far as the impugned judgment and decree passed by the learned Commercial Court in passing the decree for Rs.2,54,76,700/- in respect of the works done for Nakhatrana Division is concerned, at the outset, it is required to be noted that as such, the learned Commercial Court has not discussed anything on the actual claim of the plaintiff for Rs. 2,54,76,700/- in respect of the work carried out by it for Nakhatrana Division. There is no appreciation of evidence at all by the learned Commercial Court while passing the decree of Rs.2,54,76,700/- in respect of the work done/carried out by the plaintiff for Nakhatrana Division. Merely because it was proved by the plaintiff that the plaintiff carried out the work for Nakhatrana Division, automatically, there may not be any decree of the amount as claimed in the suit. The claim is required to be established and proved by the plaintiff by leading cogent evidence and the learned Commercial Court is required to appreciate the evidence with respect to each claim. From the discussion in paragraph-11 of the impugned judgment, it appears that the entire discussion is with respect to whether the plaintiff carried out the work as per the oral instructions and in fact whether the plaintiff completed the work of repair, or not. That thereafter, there is no further discussion and/or appreciation of evidence with respect to the actual work carried out and to what extent the plaintiff shall be entitled to the amount for the work done. Under the circumstances, the finding recorded by the learned Commercial Court with respect to Issue No.4 that the plaintiff is entitled to recover a sum of Rs.3,61,33,579/- on account of the work done by the plaintiff cannot be sustained and the same deserves to be quashed and set aside and the matter is required to be remanded to the learned Commercial Court to consider the claim of the plaintiff for Rs.2,54,76,700/- in respect of the work done by the plaintiff and therefore the matter is required to be remanded for fresh decision on Issue No.4 and consequently, Issue No.5 also. 16. 16. However, so far as the decree passed by the learned Commercial Court for Rs.3,68,300/- in respect of the work carried out for Anjar Division is concerned, as such, the same is established and proved by producing the Certificate/Work Certificate. Therefore, as regards the decree passed by the learned Commercial Court for Rs.3,68, 300/-, with respect to the work done in Anjar Division, the same is not interfered with. 17. Insofar as the submission of Shri S.P.Hasurkar, learned advocate appearing for the appellants - original defendants on applicability of Section 70 of the Contract Act and the submission that even in a case where Section 70 of the Contract Act shall be applicable, the person who has carried out the work not gratuitously at the most shall be entitled to compensation only is concerned, it is required to be noted that even it is not the case on behalf of the defendants that the plaintiff has carried out the work gratuitously. The case on behalf of the defendants is discussed hereinabove. Under the circumstances, as such, the learned Commercial Court has not committed any error in applying Section 70 of the Contract Act. 18. Now so far as the submission on behalf of the appellants - original defendants that even on applying Section 70 of the Contract Act, the person who has carried out the work not gratuitously shall be entitled to the compensation only is concerned, it is required to be noted that even the compensation is required to be ascertained and the person who has carried out the work may be entitled to compensation of the work done/carried out not gratuitously. Therefore, even for the purpose of ascertaining the amount of compensation also, what is required to be considered is the actual work carried out and to that extent the amount may be in the form of compensation and/or amount due and payable for the work done. 19. In view of the above and for the reasons stated above, the present appeal succeeds in part. The finding recorded by the learned Commercial Court on Issues No.1 to 3, 6 and 8 are hereby confirmed. However, for the reasons stated above, the impugned judgment and decree passed by the learned Commercial Court for Rs.3,61,33,579/- is hereby quashed and set aside, except for Rs.3,68,300/- with respect to the work carried out for Anjar Division. The finding recorded by the learned Commercial Court on Issues No.1 to 3, 6 and 8 are hereby confirmed. However, for the reasons stated above, the impugned judgment and decree passed by the learned Commercial Court for Rs.3,61,33,579/- is hereby quashed and set aside, except for Rs.3,68,300/- with respect to the work carried out for Anjar Division. The matter is remanded to the learned Commercial Court, Vadodara, to decide Issues No.4 and 5 afresh in accordance with law and on appreciation of the evidences already led. The aforesaid exercise shall be completed within a period of six months from the date of receipt of the present order. The present appeal is partly allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. Registry is directed to return the Record and Proceedings of the case to the learned Commercial Court, Vadodara, forthwith. In view of the above, Civil Applications stand disposed of.