ORDER : SANJEEV PRAKASH SHARMA, J. 1. Counsel appears for the appellant but is not ready to argue the case. This Civil First Appeal is pending since 1990 relating to challenge the judgment and decree dated 14.02.1990 passed by learned District Judge, Jodhpur whereby the suit of the plaintiff was decreed as against the appellants holding that the plaintiff is entitled to a sum of Rs. 11,620/- alongwith interest @ 6% on the original amount of Rs. 9162.18/- from the date of filing of the suit i.e. 28.02.1987. 2. The plaintiff in his suit has inter alia set up case claiming the aforesaid amount as against the deduction made by the department on account of penalty imposed. The plaintiff has stated that the contract was awarded to them for construction of office building at Bhinmal by the Rajasthan State Agriculture Marketing Board, vide order dated 26.05.1981. The cement for the said construction was supplied by the department and the plaintiff completed the construction and received the entire payment but the security deposit was not refunded whereafter the penalty was also imposed for delay in construction of the building. Thus, the plaintiff claimed that they were entitled to receive the security deposit as well as wrong penalty imposed upon them and were therefore entitled to receive a sum of Rs. 9162.18/-. The plaintiff accepted the deduction on account of difference in account and the interest was also paid @ 12% per annum and prayed for decree of Rs. 11,620/-. 3. The defendant-appellants contested the suit and submitted that the aforesaid security deposit was with the department till the final decision was taken in relation to the question of delay. Thereafter, decision was taken to impose the penalty and a sum of Rs. 5,280/- deducted from the security deposit and Rs. 3,880/- was deducted @131% above the price of other material which were lying at the site. The balance amount of security deposit was refunded to the plaintiff. 4. Thereafter, decision was taken to impose the penalty and a sum of Rs. 5,280/- deducted from the security deposit and Rs. 3,880/- was deducted @131% above the price of other material which were lying at the site. The balance amount of security deposit was refunded to the plaintiff. 4. Learned trial court framed 9 issues, which are as under:- 5- D;k izfroknh laŒ1 ds xyr i{kdkj cuk;k gS var% dEisulsVªh dksLV ds 2000@: ikus ds vf/kdkjh gS\ &izfroknh 6- vk;k okn 31-3-84 ls N% ekg dh vof/k esa is'k u gksus ls E;kn ckgj gS\ & izfroknh 7- vk;k okn U;k;ky; Dykt 23 ds dkj.k ds Jo.kkf/kdkj dk ugha gS\ & izfroknh 8- vk;k okn 07 :y 11 lhihlh ds rgr [kkfjt djus ;ksX; gS\ - izfroknh 9- nknjlh D;k gksxh\^^ Issues No. 6, 7 and 8 have decided as preliminary issues in favour of the plaintiff with regard to maintainability and after hearing the parties, issues No. 1 was decided in favour of the plaintiff. Issues No. 2 and 3 were decided jointly holding that imposition of penalty was not justified. It was further held that deduction of Rs. 3,882/- was also wrong and interest was awarded on the security amount from 01.10.1984 as the same was not refunded even after expiry of six months. Issue No. 4 was also decided against the appellants in view of the finding of issues No. 2 and 3 and issue No. 5 was decided holding that the defendant No. 1 were proper party. 5. Although, counsel for the State is required to assist the Court but as there was no assistance being provided and at the same time there is no counsel appearing for the respondent to argue the case. 6. This Court has gone through the record of the trial court and finds that PW-1 Budar Mal has deposed in his statement that the plaintiff is a registered Partnership Firm which had been allotted through the contract. He stated that there was no delay on their part and the decision with regard to construction were to be taken at the level of the Executive Engineer of the department, who did not advice the contractor timely and on account of delay in getting instruction from the officers, the work was not completed in time. He stated that there was no delay on their part and the decision with regard to construction were to be taken at the level of the Executive Engineer of the department, who did not advice the contractor timely and on account of delay in getting instruction from the officers, the work was not completed in time. It is also stated that certain incomplete work which had been left by another contractor were completed by him and the instruction in this regard were given belatedly, and therefore, fault cannot be put on him in causing delay in completing the works. In cross-examination, he has stated that extension of time was sought for by the contractor in lieu of delayed instruction received and the extensions were given by the department themselves and therefore, it cannot be said that there was any delay on part of the contractor. Such extension granted was in terms of the contract. The extension given to the contractor were known to the department. 7. On behalf of the appellant Mr. Mehta, Executive Engineer gave his deposition and submitted that once the extensions were given by the department, the contractor was required to complete it within time. The dates given by the contractor were at 131% more than G schedule rates for which sanction was taken from the Superintending Engineer, thus, in a way he has supported the contention of the plaintiff. 8. The argument pleaded in memo of appeal is that the cement was to be provided as per special condition no. 8 of the contract. The clause would therefore mean that supply of cement by the department to the contractor depend upon its availability. The plaintiff knew it well that at times cement was not available with the department in its stock and therefore, instead of waiting for supply of cement, plaintiff should have completed the contract on schedule after arranging for the cement itself. 9. I have considered the submissions and find that the argument is self-contradictory. Once a condition has been laid down in the terms of contract that the cement shall be made available from the department itself, if the contractor would have obtained cement from outside i.e. open market, the case against the contractor would have been set up for violating the terms of contract. Once a condition has been laid down in the terms of contract that the cement shall be made available from the department itself, if the contractor would have obtained cement from outside i.e. open market, the case against the contractor would have been set up for violating the terms of contract. Thus, if there has been a delay in making available cement for the purpose of construction on the part of the department, the department cannot turn around and impose penalty on the contractor. Similarly, it is seen that appellants have also admitted of having caused delay in providing instructions regarding the various constructions to be made. This delay at the part of the official cannot be allowed to be shifted on the contractor. Thus, learned court below has examined the provisions of clause 30 of the contract and reached to the conclusion that there has not been any deliberate delay on the part of contractor. Thus, the amount was wrongly withheld and this Court finds that the issue have rightly been decided in favour of the respondent-plaintiff. It is noticed that the appellants themselves press for stay of decreetal amount and the amount was deposited as per the order dated 29.08.1990 in the bank account in the name of the plaintiff-respondent. In view of the suit having been decided in favour of the plaintiff and in this appeal the judgment having been upheld, the plaintiff is held entitled to get the amount from the Bank alongwith interest accruing thereto in terms of the decree awarded. 10. The Registry is directed to accordingly prepare the decree. Accordingly, the Civil First Appeal is disposed of.