Research › Search › Judgment

Andhra High Court · body

2024 DIGILAW 316 (AP)

Dega Jayalakshamma v. District Collector

2024-03-05

VENUTHURUMALLI GOPALA KRISHNA RAO

body2024
JUDGMENT : Venuthurumalli Gopala Krishna RAO, J. This Appeal, under Section 96 of the Code of Civil Procedure [for short ‘the C.P.C.’], is filed by the Appellants/plaintiffs challenging the Decree and Judgment, dated 05.11.2003, in O.S. No.91 of 1995 passed by the learned Senior Civil Judge, Gudur [for short ‘the trial Court’]. The Respondents herein is the defendants in the said Suit. 2. The appellants/plaintiffs filed a Suit for recovery of a sum of Rs.13,16,101/- towards the loss and damages caused to them. 3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court. 4. The brief averments of the plaint, in O.S. No.91 of 1995, are as under: The first plaintiff’s husband by name Dega Sundararami Reddy, who is the contractor entered into agreement with the government for execution of the contract works i.e., construction of HLB across Challakalava at KM 18/6 of G.D. Road to Siddavaram (via) Kota (Balance work) covered by agreement No.99/86-87 dated 28.02.1987. As per the terms and conditions of the contract, the contract work in question has to be completed within a period of 2 months from the date of handing over of the site. The department handed over the site on 05.03.1987 and it is also obligatory on the part of the defendants to discharge their part of the contractual obligations as agreed upon. The contractor, soon after entering into the contract, taken all the steps with an intention to complete the contract work in the stipulated time. The defendants have committed the breach of contract by not supplying the requisite information and required cement in time and further the department has wrongly prepared the estimation and consequently there were lot of deviations so far as items covered by earth work was concerned. On account of these variations, revised estimation was required to be obtained from the higher authorities and the same could not be obtained from the higher authorities till 30.06.1992, which is the date of illegal termination of the contract. 5. The fourth defendant filed a written statement, which is adopted by the defendants 1 to 3, while denying the averments mentioned in the plaint, admitted with regard to the entrustment of the work to the contractor at his own request at the rates of original contractor and further contended as under:- One V.P.Kannaswamy was the original contractor. 5. The fourth defendant filed a written statement, which is adopted by the defendants 1 to 3, while denying the averments mentioned in the plaint, admitted with regard to the entrustment of the work to the contractor at his own request at the rates of original contractor and further contended as under:- One V.P.Kannaswamy was the original contractor. As he failed to complete the work, the department has withdrawn the part of the balance work from him and entrusted to the present contractor for the following works. 1. Laying of T-Beam slabs for P2-P3, P3-P4 and P4-P5 (3 slabs) 2. Balance work on abutment A2. 3. Balance work on approaches including metalling. The revised estimation was approved on 05.10.1990 vide memo No.6382/ECE/D1/DEE.III/ACE.3/85, dated 05.10.1990 and on that the department has also granted further extension of time up to 31.03.1991 and the 3rd defendant has also gave clearance and came to proceed with the work. As per the revised estimates regarding the formation of approaches and carted, the contractor carted the earth work to a quantity of 13784.5 cum meters in addition to the said earth quantity of 1184 cubic meters by February, 1990 and a part payment was also made for that work and he failed to make further arrangements to carry out the further earth work inspite of time extended from time to time. But the contractor, with a plea that the authorities have not approved the revised estimate, has stopped the work even though the department has given clearance in advance to proceed with required carted earthwork to complete the approaches to the bridge. He made all baseless charges against the department. The department has incurred an additional expenditure of Rs.2,19,000/- and with a further loss of 2 years time to complete the work after determining his work under clause 61 to prescribed specifications to A.P.Standard Specifications and inspite of the notice, the contractor could not resume the work and inspite of the request and not even applied for extension of time from 01.04.1991. At any point of time, the contractor was not asked to stop the work and he himself delay the work even though the payments were made for the work done by him on 03.04.1990. At any point of time, the contractor was not asked to stop the work and he himself delay the work even though the payments were made for the work done by him on 03.04.1990. The contractor was asked to stop further earth work till the approval from the Chief Engineer is received for carting earth and he was never asked to stop other works such as gravel base, metaling in the areas where earth work was completed already. 6. Based on the above pleadings, the trial Court framed the following issues: (i) Whether the plaintiffs are entitled for the suit amount? (ii) To what relief? 7. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 and PW2 were examined and Ex.A1 to Ex.A19 were marked. On behalf of the Defendants DW1 and DW2 were examined and Ex.B1 was marked. 8. After completion of the trial and on hearing the arguments of both sides, the trial Court dismissed the suit vide its judgment, dated 05.11.2003, against which the present appeal is preferred by the appellants/plaintiffs in the Suit questioning the Decree and Judgment passed by the trial Court. 9. Heard Sri T.Rama Koteswara Rao, learned counsel, on behalf of Sri M.Ravindranath Reddy, learned counsel for appellants/plaintiffs and learned Government Pleader for Appeals, appearing on behalf of the respondents. 10. Learned counsel for the appellants would contend that the trial Court wrongly came to conclusion in refusing to award the damages on the ground that the plaintiffs did not produce any oral and documentary evidence to prove the case of the plaintiffs and he would further contend that the trial Judge came to wrong conclusion and dismissed the suit and appeal may be allowed by setting aside the decree and judgment passed by the trial Court. 11. Per contra, the learned Government Pleader for Appeals on behalf of respondents would contend that on appreciation of the entire evidence on record, the trial judge rightly dismissed the claim of the plaintiffs and he would further contend that appeal may be dismissed. 12. 11. Per contra, the learned Government Pleader for Appeals on behalf of respondents would contend that on appreciation of the entire evidence on record, the trial judge rightly dismissed the claim of the plaintiffs and he would further contend that appeal may be dismissed. 12. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following point would arise for determination: Whether the decree and judgment passed by the trial court needs any interference, if so, to what extent? 13. Point: The contention of the plaintiffs is that the delay for undertaking the work was not occurred due to the fault of the contractor and the delay was caused due to not supplying the material as such the plaintiffs are entitled for refund of earnest money deposit and security deposit of Rs.87,292/-. The defense taken by the government is that inspite of repeated demands made by the defendants and even though an extension of time is also granted in executing the work from time to time, the contractor failed to complete the work within a stipulated time and ultimately the contractor was determined by issuing Ex.A16 notice. Prior to that letters were also addressed to the contractor under Ex.A12 to Ex.A15 demanding the contractor to complete the work. It is an admitted fact that the revised work was also sanctioned by the Chief Engineer vide its order dated 05.10.1990 under Ex.B1. The said revised estimation was approved by the Engineering Chief. Subsequent to the approval of the revised estimation, the government also issued notices under Ex.A13 to Ex.A16 by demanding the contractor to complete the work. Even though the contractor received the notices but he did not choose to complete the work, due to that reason the contract period was extended from time to time to complete the work. 14. The defendants relied on Ex.A19. As per clause 60(a) of prescribed specifications to A.P. Standard specifications, the time is an essence of contract. The claim of the plaintiffs is that in view of Ex.A12 notice issued to him to stop the earth work, due to that reason only, he could not attend the remaining work and that he could not complete the remaining work. As per clause 60(a) of prescribed specifications to A.P. Standard specifications, the time is an essence of contract. The claim of the plaintiffs is that in view of Ex.A12 notice issued to him to stop the earth work, due to that reason only, he could not attend the remaining work and that he could not complete the remaining work. But the fact remains that after revised estimation was approved by the engineering chief under Ex.B1 demand notices were issued by the defendants under Ex.A13 to Ex.A16 to the contractor to complete the work but he failed to complete the work within a time stipulated as prescribed in the agreement in between both the parties, therefore, in view of the violation of above clause 60(a) of prescribed specifications to A.P. Standard Specification Act, the plaintiffs are not entitled for refund of earnest money and security deposit as claimed by the plaintiffs. 15. The defendants have taken a defense in the written statement itself that the claim of the plaintiffs is barred by limitation. The material on record reveals that the contract was determined on 30.06.1992 under Ex.A16 and subsequently a statutory notice under Section 80 C.P.C. was also issued and 2 months period has to be deducted in computing the period of limitation for filing the suit, therefore, certainly the suit is filed within a period of limitation which is on the last date of limitation. As such, the suit is filed within a period of limitation. 16. Another plea put forth by the plaintiffs is that the department has not paid full rate and the defendants department paid only part of the rate and the plaintiffs are entitled the balance amount of Rs.1,43,379.35 paisa. As per the terms of the contract, for the supplementary items the rate will be paid as per the rate fixed for the main work. Even for new items also the similar rate has to be claimed by the contractor. If that is the case, the contractor has no right to claim any rate more than the agreed rate entered into in between both the parties in view of the violation of clause under the prescribed act (Ex.A19). Even for new items also the similar rate has to be claimed by the contractor. If that is the case, the contractor has no right to claim any rate more than the agreed rate entered into in between both the parties in view of the violation of clause under the prescribed act (Ex.A19). For the reasons stated above, the plaintiffs cannot claim full rate against to the terms and conditions of Ex.A19 the agreement entered in between the defendants and contractor and so the plaintiffs are not entitled the said alleged balance amount of Rs.1,43,379.35 paisa. 17. Another plea taken by the appellants is that the contractor advanced a sum of Rs.1,75,000/- to the labours and others and that they sustained a loss of Rs.1,75,000/- which has to be paid by the defendants. Admittedly till March, 1990 there are no disputes in between the contractor and the defendants and the contractor completed 2 items of the work and part of item No.3 was completed and also received the amount for the work done by him and failed to complete the remaining work, except the oral evidence of PW1 and PW2 there is no other material on record to prove that the contractor paid advance amount of Rs.1,75,000/- to the labours and others and that he sustained loss to the extent of Rs.1,75,000/-, admittedly the contractor failed to carry the work after March, 1990. 18. Another contention taken by the appellants is that the contractor gathered material like metal and sand worth of Rs.40,000/-. As seen from the material on record there is no other evidence to show that the contractor gathered material like metal and sand worth of Rs.40,000/- at the work spot to complete the contract work entrusted by the defendants, no other evidence is produced by the contractor to prove his contention to show that he spent Rs.40,000/- towards metal and sand, therefore, the plaintiffs are not entitled the said claim. 19. Another contention taken by the appellants is that the establishment was kept idle by which time the contractor paid the wages to the employees and the staff and he sustained loss of Rs.75,000/- and asked for repayment of the same. 19. Another contention taken by the appellants is that the establishment was kept idle by which time the contractor paid the wages to the employees and the staff and he sustained loss of Rs.75,000/- and asked for repayment of the same. As per the terms and conditions of the agreement he has to pay fair wages and also it is the duty to maintain necessary records and registers and he is also supposed to maintain the attendance register of the casual labour and so also other workers. Admittedly, no such evidence is placed by the plaintiffs to prove the said contention before the trial Court. Therefore, the amount of Rs.75,000/- claimed by the contractor for payment of wages to the employees and staff is not sustainable. The same is not at all proved by the plaintiffs. 20. Another plea put forth by the appellants is that the contractor made extra earth work to a tune of 5,000 cubic meters and which was not measured and the amount was also not paid by the defendants for which he is entitled an amount of Rs.1,06,650/-. Ex.A12 proceedings were issued by the Executive Engineer on 03.04.1990 and the same was received by the contractor. There is no denial on the part of the plaintiffs to that effect. Admittedly till 31.03.1990, the payment was made for the work done by the contractor, in such a case, it is not possible to make earth work of 5000 cubic meters within a span of 4 days only till receiving the orders under Ex.A12 from the defendants. The plaintiffs also failed to prove that after determination of the contract they have attended work to the extent of 5000 of cubic meters. Admittedly, no such evidence is placed by the appellants to show that the deceased contractor did earth work of 5000 cubic meters within a span of 4 days to 1 week, therefore, the plaintiffs are not entitled for the said claim. 21. Another plea put forth by the appellants is that due to non supply of material by the defendants within a prescribed time, the centering work raised by the contractor to lay the T-Beams between the points P3-P4 that it was collapsed due to gales on 10.05.1987 and that the plaintiffs sustained a loss and that the deceased contractor sustained a loss of Rs.12,960/- and claimed the said amount. Admittedly, the centering raised by the contractor was collapsed due to heavy wind and gales which can be treated as act of the god for which the government cannot be liable as there is no fault on the part of the defendants. 22. Another plea put forth by the plaintiffs is that due to escalation of prices and due to increase of costs in the market, the deceased contractor sustained a loss of Rs.1,38,000/- and that the plaintiffs wants to recover the same from the defendants department. As seen from Ex.A19 with regard to escalation of clause that the contractor to claim more than the rate agreed though there is a change in the market value and due to escalation of prices in view of the conditional clause entered into in between both the parties under Ex.A18, the appellants are not entitled to claim damage caused due to increase of cost in materials. Therefore, the appellants are not entitled the said claim of Rs.1,38,000/-. 23. On considering the entire material on record, the learned trial Judge rightly dismissed the suit and there is no need to interfere with the finding given by the trial Judge. I do not find any illegality in the decree and the judgment passed by the trial Court. Accordingly, the point is answered. 24. In the result, the Appeal Suit is dismissed confirming the decree and Judgment dated 05.11.2003 in O.S.No.91 of 1995 passed by the learned Senior Civil Judge, Gudur. No order as to costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.