ORDER : J.B. Pardiwala, J. 1. This first appeal is at the instance of the State of Gujarat (original defendant) and is directed against the judgment and decree passed by the Second Joint Civil Judge (S.D.) Ahmedabad Rural, Ahmedabad dated 27.8.1987 in the Special Civil Suit No. 153 of 1984 instituted by the respondent herein - original plaintiff for the recovery of Rs. 24,29,550/- towards the work of construction of earthen dam. 2. It appears from the materials on record that the respondent herein - original plaintiff is a registered partnership firm and is engaged in the business of construction. The Executive Engineer, Machhan Nala Project Division Diwada colony floated a tender for the work of construction of an earthen dam masonry spill way and other allied works of the Machhan Nala Irrigation Project. The plaintiff participated in the tender process by offering his bid and ultimately the tender filled in by the plaintiff was accepted by the defendant. An agreement in writing was entered into between the parties in this regard. The work order was issued in favour of the plaintiff dated 10.10.1980 and the contract work was to be completed within nine months i.e. on or before 15.6.1981. 3. However, dispute arose between the parties as regards the work of the contract which ultimately led to the institution of the Special Civil Suit No. 153 of 1984 referred to above. 4. The following issues were framed by the Civil Court at Ex. 13:- "ISSUES 1. Whether the plaintiff proves that the plaintiff firm is duly registered under the Indian Partnership Act? 2. Whether the plaintiff proves that a regular agreement has been entered into with the plaintiff bearing No. B/2/4 of 1980-81 for the work of constructing? 3. Earthen Dam Masonry Spill Way H.R. and other allied work of Machhan Nala Irrigation Project? 4. Whether the plaintiff proves that there was provision for supplying of rubble by the Department, but the Department could not supply the rubble as per the provision? 5. Whether the plaintiff proves that the Department have committed breach of the terms of the agreement? 6. Whether the defendants prove that the plaintiff firm have no cause of action to file the present suit against them? 7. Whether the plaintiff proves that the amount of Rs. 24,29,550/- found due from the defendant? 8. What order and decree?" 5. 5. Whether the plaintiff proves that the Department have committed breach of the terms of the agreement? 6. Whether the defendants prove that the plaintiff firm have no cause of action to file the present suit against them? 7. Whether the plaintiff proves that the amount of Rs. 24,29,550/- found due from the defendant? 8. What order and decree?" 5. The issues framed by the Civil Court referred to above came to be answered as under:- "My finding on the above issues are as under: 1. In the affirmative. 2. In the affirmative. 3. In the affirmative. 4. In the affirmative. 5. In the affirmative. 6. In the negative. 7. In the affirmative. 8. As per final order." 6. Ultimately the suit filed by the plaintiff came to be allowed. The operative part of the order passed by the Civil Court reads thus:- "ORDER The suit is decreed. The defendant do pay Rs. 24,29,550/- (Rs. Twenty four lacs twenty nine thousand five hundred fifty.) to the plaintiff with running interest at the rate of 15% per annum from the date of the suit till realisation. The defendant do also pay the cost of the suit to the plaintiff and shall bear its own cost. Decree be drawn accordingly." 7. Being dissatisfied with the aforesaid decree passed by the Civil Court the appellant is here before this Court with the present appeal. 8. Mr. Rakesh Patel, learned AGP appearing for the appellant invited the attention of this Court to the issue No. 4 framed by the Civil Court referred to above. Mr. Patel, the learned AGP concentrated more on the issue No. 4 while questioning the legality and validity of the decree passed by the Court below. The issue No. 4 is with regard to providing of rubble by the Department to the plaintiff. It appears that the case of the plaintiff is that as per the contract the rubble was to be provided by the Department but as the Department failed to provide the rubble, he had to purchase the rubble from the open market at the rate of Rs. 60/- per metric ton. The learned AGP would submit that the plaintiff could not have purchased the rubble from the market and that too at the rate of Rs. 60/- per metric ton. 60/- per metric ton. The learned AGP would submit that the plaintiff could not have purchased the rubble from the market and that too at the rate of Rs. 60/- per metric ton. According to the learned AGP, even if it is believed that the Department failed to supply the rubble, the amount at which the rubble was purchased from the market was on a higher side and, therefore, the plaintiff is not entitled to such amount. 9. On the other hand, this first appeal has been vehemently opposed by Mr. Dayani, the learned counsel appearing for the respondent (original plaintiff). The learned counsel would submit that no error not to speak of any error of law could be said to have been committed by the Court below in passing the impugned judgment and decree. Mr. Dayani invited the attention of this Court to paragraph 8 of the impugned judgment. According to Mr. Dayani, the relevant discussion with regard to the issue No. 4 is in paragraph 8. Paragraph 8 of the impugned judgment reads thus:- "8. The witness Bhailal Ambalal Patel Exh. 19 of the plaintiff has also stated in his deposition that the item No. 3, 4 and 5 was not supplied by the department as per schedule 'A' of the tender agreement Exh. 21 and so he had to purchase the items from outside at the rate of Rs. 60/- per C.M.T. Now how far the said fact is true in that connection we may see the evidence of defendant. The witness Vishvanathan Exh. 164 of the defendant has admitted in his cross-examination that item No. 3, 4 and 5 of schedule 'A' of the tender agreement exh. 21 were to be supplied by the department to the plaintiff, and he has also admitted in his cross-examination that item no. 3 and 4 (Rubble) has not been supplied to the plaintiff by the department and as per the agreement 15.782 C.M.T. of item No. 5 (Rubble) was to be supplied to the plaintiff by the defendant but the department only 15.782 C.M.T. supplied to the plaintiff. 3 and 4 (Rubble) has not been supplied to the plaintiff by the department and as per the agreement 15.782 C.M.T. of item No. 5 (Rubble) was to be supplied to the plaintiff by the defendant but the department only 15.782 C.M.T. supplied to the plaintiff. Thus considering such type of the defendant it is clear that the department has no supplied item No. 3, 4 and 5 of the plaintiff and as the plaintiff had to complete contract work within short period as per the instruction of the department so it is but natural that the plaintiff had to purchase the quantity of items from outside at the rate of Rs. 60/- per C.M.T. to complete the contract work. It is also significant to note here that the witness Bhailal Ambalal exh. 19 of the plaintiff has stated in his deposition that they purchased rubble at the rate of Rs. 60/- from Bajarwada and the witness Vishwanathan Ramchandra exh. 164 of the defendant has admitted in his examination-in-chief that Rajarwada-quarry is approved quarry and since the plaintiff has purchased the rubble from approved quarry so there is therefore no reason to disbelieve the evidence of the plaintiff that they purchased rubble at the rate of Rs. 60/- per C.M.T. for the contract work. It is also significant to note here that the witness Vishvanathan Ramchandra exh. 164 of the defendant has admitted in his cross-examination that the suit contract work had to be completed before monsoon, and considering such type of his evidence it is clear that the plaintiff was forced to purchase the items from outside to complete contract work before monsoon, and thus the evidence of the plaintiff is supported by the said witness of the defendant and under such circumstances there is therefore no reason to disbelieve the evidence of the witness of the plaintiff which goes to show us that the plaintiff purchased the item at the rate of Rs. 60/- C.M.T. as per statement exh. 148. Thus from my above discussion it is clear that due to change in the scope of the contract work the plaintiff had spend Rs. 1221400/- after the quantities and the plaintiff had to spend Rs. 12,08,150/- after purchasing rubble as the department did not supply the said item to the plaintiff and under such circumstances it can be said that the defendant has committed breach of contract." 10. 1221400/- after the quantities and the plaintiff had to spend Rs. 12,08,150/- after purchasing rubble as the department did not supply the said item to the plaintiff and under such circumstances it can be said that the defendant has committed breach of contract." 10. Mr. Dayani thereafter invited the attention of this Court to paragraph 9. Paragraph 9 of the impugned judgment reads thus:- "9. The learned D.G.P. Shri V.N. Vyas for the defendant has drawn my attention to the clause 14 of the tender agreement exh. 21 and submitted that even though the department has changed the drawings and designs of the contract work yet the plaintiff is bound to carry on the contract work and the plaintiff cannot claim damages or compensation, and if quantity exceeds more than 30% then at the most the plaintiff will be entitled to get the amount at the rate shown in schedule 'A' of the tender agreement exh. 21 and thus the plaintiff is not entitled to get the suit claim. Now in reply of the above agreement of the learned D.G.P. for the defendant I would like to refer section 73 of Indian Contract and Specific Relief Acts which runs as follow. "When a contract has been broken the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it." Now taking into considering the above legal position in the instant case since due to change of the designs by the defendant in the contract work the plaintiff had to increase the quantity of work and since as per my above discussion the defendant has admitted in letter dated 25.11.81 from file exh. 155 that the quantity of work increased upto 50% and as per my above discussion the defendant did not supply the items of schedule 'A' of the tender agreement exh. 21 and thereby the defendant has committed the breach of contract so the plaintiff will be entitled to get the suit claim as per section 73 of the get the suit claim as per section 73 of the Indian Contract Act. 21 and thereby the defendant has committed the breach of contract so the plaintiff will be entitled to get the suit claim as per section 73 of the get the suit claim as per section 73 of the Indian Contract Act. In support of my above views I would like to refer a decision of Hon'ble Supreme Court given in the case M/s. A.T. Brij Paul Singh and others V/s. State of Gujarat [(1984) 5 Supreme Court Cases Page No. 59], it is held therein that, "Contract Act, 1892 Section 73 damages claimed by contractor where Government committing breach by improperly rescinding the contract-contractor entitled to damages for loss of expected profit on the remaining work. For estimating the amount of damages, court should make a broad evaluation instead of going into minute details." I would also like to cite observation made in Law of Contract 4th addition by Avtar Singh at page 26. "The theory of fundamental breach has now found statutory recognition to some extent in the (English) Unfair Contract terms Act, 1977. The Act says that a party who commits breach of his contract cannot take the advantage of any clause in contract which either excludes or limits his liability. Further, if there is any provision in the contract to the effect that 'no performance "or" Substantially different performance" will be take has equivalent to performance, that will be of no avail. Thus the term "breach" will include a performance which is substantially different from that contemplated by the contract." I would also like to cite observation made at page No. 410 in law relating to Building and Engineering Contracts in India by G.T. Gajria. "Sometimes the excess or additional quantities of some of the tendered items exceed by 100% to 500% or even more. In such cases a question often arises whether the contractor under the variation clauses is liable to execute the extra or additional quantities of the tendered items at the tendered rates to an unlimited extent. If often happens that a contractor, for various reasons, quotes an abnormally low rates for certain items the quantities of which are few or he may be having some facilities to execute the items in question at comparatively low rates. If often happens that a contractor, for various reasons, quotes an abnormally low rates for certain items the quantities of which are few or he may be having some facilities to execute the items in question at comparatively low rates. Another aspect for consideration of this question will be that the contractor tenders his rates on the basis of the quantities mentioned in the tender and also the drawings, designs and specifications and if the quantities of any of the tendered items increase drastically or beyond any reasonable percentage, will he be liable to execute the same beyond any reasonable limit. Similar question will arise when there is a reduction in the tendered quantities of the tendered item or items. In such a situation the most important factor to consider will be as to what would be the reasonable variation in the tendered quantities so as to bind the contractor to execute at the tendered rates. It has been suggested by Dunham in his Treaties on Contracts, Specifications and law for Engineers, (1958) Edition, at Rs. 214 that a change of less than 5 percent would be insufficient to constitute a just claim for an extra. It has been further suggested that the contract should state the permissible variation in the quantities and such a statement will avoid many arguments." Thus applying the ration of the above case and observations to the instant case since the defendant had changed the design and drawings of the contract work and due to it the quantity of work was increased and the plaintiff had to do additional work and the defendant did not supply the materials as per agreement to the plaintiff and due to it the plaintiff had to purchase the items at higher rate from outside as per my above discussion and thereby the defendant has committed breach of contract so the plaintiff is entitled to get damages or compensation as claimed by the plaintiff in the suit. And under such circumstances I find issue No. 2, 3, 4, 5 in the affirmative and issue No. 6 in the negative." 11. The learned counsel appearing for the plaintiff would submit that in fact there is an admission at the end of the witness viz. Vishvanathan Ramchandra Ex. 164 examined by the defendant as regards the supply of rubble. And under such circumstances I find issue No. 2, 3, 4, 5 in the affirmative and issue No. 6 in the negative." 11. The learned counsel appearing for the plaintiff would submit that in fact there is an admission at the end of the witness viz. Vishvanathan Ramchandra Ex. 164 examined by the defendant as regards the supply of rubble. The witness examined by the defendant i.e. the appellant herein has admitted that as the work was to be completed before the onset of the monsoon and the rubble was not supplied to the plaintiff, the plaintiff was compelled to purchase the rubble from the open market at the rate of Rs. 60/- C.M.T. 12. Having heard the learned counsel appearing for the parties and having gone through the materials on record the only question that falls for our consideration is whether the Trial Court committed any error in passing the impugned judgment and decree. 13. The evidence of the witness viz. Vishvanathan Ramchandra Ex. 164 examined by the defendant makes the picture very clear. The relevant discussion in this regard is to be found in paragraph 8 of the impugned judgment referred to above. In our opinion, the appreciation of evidence at the end of the trial Court is correct and in the right direction. We do not find any error in this regard in the relevant discussion as contained in paragraphs 8 and 9 respectively of the impugned judgment. In our opinion, no case is made out for interference in this first appeal. 14. No other submissions have been canvassed on behalf of the appellant. 15. In the result, this first appeal fails and is hereby dismissed. 16. At this stage, Mr. Dayani, the learned counsel brought to our notice the order passed by this Court dated 17.2.1988 in the Civil Application No. 365 of 1988. The order read thus:- "Rule. Miss Bhavnani waives service. Interim stay on condition to deposit the decretal amount in the trial court within eight weeks from today. On such deposit the respondent at liberty to withdraw 1/2 of the amount on furnishing bank guarantee and the trial court to invest of the amount in long term fixed deposits in nationalised bank and continue to renew it during pendency of this appeal. Rule absolute. No costs." 17. On such deposit the respondent at liberty to withdraw 1/2 of the amount on furnishing bank guarantee and the trial court to invest of the amount in long term fixed deposits in nationalised bank and continue to renew it during pendency of this appeal. Rule absolute. No costs." 17. As the appeal has been ordered to be dismissed the bank guarantee furnished by the respondent - original plaintiff stands discharged and the balance amount invested by the trial Court in a long term fixed deposit with the nationalized bank shall now be disbursed in favour of the respondent-plaintiff with the interest accrued as on the date of actual disbursement.