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2024 DIGILAW 73 (GUJ)

CHAIRMAN/MANAGING DIRECTOR v. ASHOK BUILDERS

2024-01-09

BIREN VAISHNAV, NISHA M.THAKORE

body2024
ORDER : 1. The appellants, who were original defendants, have filed the present First Appeal on being aggrieved and dissatisfied with the judgment and decree dated 30.12.2000 passed by the Second Joint Civil Judge (SD), Himmatnagar, in Special Civil Suit No. 122 of 1990. Cross objections have been filed by the original plaintiff who filed the Civil Suit. 2. The case of the respondent-plaintiff, as narrated in the judgment and decree are as under: “1. The plaintiff is an engineer and contractor and registered under “A” Class, under the list of maintained by Public Works Department (PWD) and also approved by the various other authorities and is carrying on its activities as engineer and contractor. The Executive Engineer, Public Health Works Division, Himmatnagar, now renamed as Executive Engineer, Gujarat Water Supply & Sewerage Board, Himmatnagar. The defendant no. 2 had invited the tenders publicly on behalf of the defendant no. 1 for the work of laying sewerage collecting system at Talod and accordingly the plaintiff had purchased a blank tender form and had filled in the same and as the rates quoted by plaintiff was found lowest and compensative, hence the tender of the plaintiff was accepted by the defendants and regular agreement bearing no. B/1/37 of 1983-84 was entered into between the plaintiff and defendants. As per the terms and conditions laid down in the contract agreement and also in the work order issued to the plaintiff. The plaintiff was required to commence the work from 13.12.1983 and the said work was required to be completed within the period of eight months i.e. on or before 12.8.1984, but due to delays and preventions created by the defendant department the said work could not be completed within its stipulated time. The reasons for the non-completion of the said work within stipulated time are narrated in nutshell as under: (i) That due to non-availability of the funds the defendants had called upon the plaintiff to slow down the progress of the work. (ii) That the defendants were required to pay secured advance on the material, but the defendants have fail to make the payment of the material brought on the sight by the plaintiff. (iii) That there was much variation in the specification the work could not be executed and hence under the different type of situation the plaintiff was required to execute the work. (iii) That there was much variation in the specification the work could not be executed and hence under the different type of situation the plaintiff was required to execute the work. (iv) That the shorting and shuttering were required to be done at many places for which the plaintiff had all the time intimated the defendants and even the said work was never contemplated at the time of tendering in full reaches. (v) That no line out were given as and when required and the line out which were made available were given in piece meal. (vi) That material required to be supplied as per schedule-A were never supplied in time and even the material were not supplied after the stipulated time. (vii) That the C.I. Main holes covers were also not given to the plaintiff in time. (viii) That there was heavy water in the excavated land and hence the defendants had called upon by the plaintiff to provide encasing of cement concrete of 1:3:6, so that the uplift of the pipes be avoided. (ix) That due to crop-up of many extra items and failures to finalise the same the work could not be progressed. 2. That due to the abolitions, the said work could not be completed within its stipulated time the plaintiff had called upon the defendants to extend the time limit and to settle and pay price rise and other demand vide the letter dated 30.10.1986. But though the work thereafter continued by the plaintiff the defendants neither extended the time limit nor did settled and pay the price rise and ultimately the payment of work done was also not made, hence the plaintiff was concentrate to abandon/rescind/terminate the contract and, therefore, the plaintiff served a legal notice to the defendant on 3.1.1986 through his advocate. 3. Though the said notice was received by the defendants the defendants did not comply with the same nor did made the payments at mentioned therein. Hence the plaintiff has filed the present suit for recovery of their dues which are as under: Claim No. 1: (A) Amount of Rs. 3,35,722/- on account of work done not paid. (B) Amount of Rs. 6,48,820/- towards the rise in material, petroleum and labour in the said period. (C) Amount of Rs. 10,200/- on account of security deposit. (D) Amount of Rs. 3,35,722/- on account of work done not paid. (B) Amount of Rs. 6,48,820/- towards the rise in material, petroleum and labour in the said period. (C) Amount of Rs. 10,200/- on account of security deposit. (D) Amount of Rs. 10,000/- on account of bank commission, charges and loss of interest on security deposit bank guarantee. (E) Amount of Rs. 35,000/- on account of advance paid to the labourers. (F) Amount of Rs. 30,000/- on account of plaintiff was required to carry out the work in piecemeal and doing so had to incur additional expense of transporting the materials. (G) Amount of Rs. 3,300/- on account of running account bills towards time limit deposit which is required to be refunded back to the plaintiff. Claim No. 2: (A) Amount of Rs. 6,800/- on account of delay in making the payment of running account bills. (B) Amount of Rs. 6,84,000/- on account of overhead and overstay was continued till the plaintiff terminated the contract on 5.10.1987. (C) Amount of Rs. 36,006/- on account of profit of non-execution of work. Claim No. 3: (A) Amount of Rs. 8,45,906/- on account of interest. Hence, in all, the plaintiff has demanded Rs. 26,45,754/- from the defendants and as also demanded the interest at the rate of 18% p.a. from the defendants.” (S.I.C.) 3. On the written statement filed by the appellants, the Trial Court framed the issues and answered them as under: “(1) Whether it is proved that this Court has jurisdiction to decide this suit? (2) Whether it is proved that the suit is barred by Law of Limitation? (3) Whether it is proved that plaintiff has suffered loss due to non-cooperation and assistance from the defendants as per the stipulation of the contract? (4) If yes, how and in which manner the losses have been incurred or caused to the plaintiff? (5) Whether plaintiff becomes entitled to get refund of Security Deposit from the defendants? (6) What final order and decree? On appreciation of evidence which are produced or given or led by the parties and on the strength of application of laws to them. My findings on the above issues are as under: (1) In the negative. (2) In the negative. (3) In the affirmative. (4) As per the final order. (5) As per the final order. (6) As per the final order.” 4. Mr. My findings on the above issues are as under: (1) In the negative. (2) In the negative. (3) In the affirmative. (4) As per the final order. (5) As per the final order. (6) As per the final order.” 4. Mr. Vishrut Jani, learned counsel appearing for the appellants, made the following submissions: 4.1 The suit filed by the present respondent is not maintainable in the eye of the law. The appellant submits that the defendant-original plaintiff had filed the suit for the damages of Rs. 26,45,754/- is not tenable in view of Sec.21 of the Gujarat Public Works Contract and Dispute Arbitration Tribunal Act, 1992. 4.2 The defendant had preferred one Miscellaneous Civil Application being Misc. Civil Application No. 148/88 before the Civil Judge (SD) Baroda under Sec.20 of the Arbitration Act, 1940. In view of that application, one Mr. Subramaniam came to be appointed as Arbitrator. Since the arbitration proceeding was pending before the Arbitrator, no suit can be instituted on the same ground before the Civil Court, this point is not properly dealt with by the trial Court and therefore, the judgment and decree passed by the Trial Court is required to be quashed and set aside. 4.3 That contract was commenced on 13.12.1983 and the respondent-original Plaintiff was required to complete the contract work on or before 12.8.1984. Thereafter, extension was sought on behalf of respondent and the same was granted upto 31.7.1986. But the contract work was not completed on or before 31.7.1986. Further action was sought on behalf of respondent-plaintiff by an application dated 30.10.1986 but the same was not granted by the appellant-defendant. Therefore, the contract comes to an end on 31.07.1986 while the suit is filed by the respondent on 4.10.1990. It is a crystal clear principle that such suits are required to be filed within a period of three years but the period of three years expires on 30.06.1989 and therefore, the said suit is time barred but the said aspect is not properly dealt with by the Trial Court. 4.4 It is true that the appellant-defendant were not able to pay up the amount to the respondent-plaintiff but the said problem had arisen after one year three months and 11 days after the termination of the contract i.e. 31.7.1986. Therefore, there is question of delayed payment. 4.4 It is true that the appellant-defendant were not able to pay up the amount to the respondent-plaintiff but the said problem had arisen after one year three months and 11 days after the termination of the contract i.e. 31.7.1986. Therefore, there is question of delayed payment. The attention of the Trial Court was drawn to the said aspect by the written statement but the same is not properly considered by the Trial Court. 4.5 The Trial Court had further awarded Rs. 2,51,561=27p to the plaintiff on account of overhead and over stay. On this ground it is submitted that extension was sought by the plaintiff contractor upto 31.7.1986 and further extension was sought by an application dated 30.10.1986. It was not the appellant who sought extension neither on the part of the appellant the delay was caused. Therefore, there is no question of granting Rs. 2,51,561=27p to the defendant on account of overhead and overstay. 5. Mr. Sukhwani, learned counsel appearing for the original plaintiff, cross objector, made the following submissions: 5.1 Apart from supporting the decision on certain issues insofar as they have been answered in favour of the plaintiff-respondent, on the cross objections, he would submit as under: (a) The learned Trial Court exercised the jurisdiction not vested in it. (b) The learned Trial Court failed to exercise the jurisdiction vested in it. (c) The learned Trial Court failed to appreciate the ratio of various authorities cited on behalf of appellant. (d) The learned Trial Court having come to conclusion that work could not be completed due to the Respondents yet the damages are not awarded fully. (e) The learned Trial Court wrongly rejected the claim of 40% rise on the work during the extended period. (f) The learned Trial Court wrongly rejected the claim of 20% rise over and above original rates. (g) The learned Trial Court wrongly rejected the claim of Rs. 35,000/- on account of idle labour charges from 01/12/1985 for period of four to five months. (h) The learned Trial Court wrongly rejected the claim of Rs. 30,000/- on account of additional expenses of transportation due to piecemeal working. (i) The learned Trial Court wrongly rejected the remaining claim of Rs. 4,31,247.73 on account of overhead and oversteps. (j) The learned Trial Court wrongly rejected the reamining claim of Rs. 18,000/- on account of loss of profit. 30,000/- on account of additional expenses of transportation due to piecemeal working. (i) The learned Trial Court wrongly rejected the remaining claim of Rs. 4,31,247.73 on account of overhead and oversteps. (j) The learned Trial Court wrongly rejected the reamining claim of Rs. 18,000/- on account of loss of profit. The Trial Court wrongly rejected the claim of interest as claimed. (k) The Trial Court wrongly came to conclusion that Appellant is not entitled for remaining suit claims and Interest. (l) The judgment and decree not passed by the learned Trial Court is required to be considered by this Court. 6. Having heard learned advocates for the respective parties and having in detail perused the judgment and examined the reasons before us, on the question of jurisdiction of Issue No. 1, what is evident is that the suit in question was filed on 01.01.1994 and therefore, the Trial Court, as rightly held by it, had the jurisdiction to file the Civil Suit. In the case of Ajay S. Patel vs. State of Gujarat and Another, AIR 2007 Guj. 150 , while recalling the order dated 06/10/2005 passed in First Appeal No. 413 of 2000, this Court in paras 22 and 23, held as under: “22. A learned Single Judge of this Court in the judgment dated 4.4.1998 in Civil Revision Application No. 1286 of 1996 and another learned Single Judge of this Court in Vinodbhai Mohanbhai Vekaria vs. State of Gujarat have also taken this view. We may also note that the Gujarat Public Works Contracts Disputes Arbitration Tribunal had also taken similar view in its decisions. 22.1 In State of Gujarat vs. Jamnadas Babulal Joisar of Jamnagar, 1998 AWLJ 21 decided on 27-2-1997, the Tribunal dealt with a similar controversy and held as under: Even under Section 21 of the Tribunal Act, the Tribunal has no jurisdiction to entertain or decide any dispute relating to a works contract which is agitated in a civil suit and in respect of which no arbitration proceeding was pending on 1.1.1994. Obviously, therefore, a Civil Court will have jurisdiction under Section 9 of Code of Civil Procedure, to try and decide all disputes relating to any type of contract including a works contract which was pending in the Civil Court on 1.1.1994 but in respect of which no arbitration proceeding had been commenced before 1.1.1994. Obviously, therefore, a Civil Court will have jurisdiction under Section 9 of Code of Civil Procedure, to try and decide all disputes relating to any type of contract including a works contract which was pending in the Civil Court on 1.1.1994 but in respect of which no arbitration proceeding had been commenced before 1.1.1994. Section 13 of the Tribunal Act has, therefore, to be read not in isolation but in context of Sections 8 and 21 of the Tribunal Act in order to understand its full implications. Exclusion of jurisdiction of Civil Courts is not to be readily inferred. 23. In view of this settled legal position in this State, when the civil suits instituted prior to 1.1.1994 have been tried and decided by the Civil Courts and this Court as well as the Tribunal have taken a consistent view that Civil Court continued to have jurisdiction to try and decide civil suits instituted prior to 1.1.1994 and pending before the Civil Court as on 1.1.1994, which were not in the nature of arbitration proceedings, we are of the view that the judgment and order dated 6.10.2005 in First Appeal No. 413 of 2000 is required to be recalled.” 7. On the question of limitation too, what is evident is that the contract was terminated on 5.10.1987 whereas the suit was filed on 4.10.1990, and therefore, was within three years as per Article 55 of the Limitation Act. Even otherwise, as per the letter at Exh.135, the letter withdrawing the work was dated 23.01.1988 under Clause 15 of the agreement, and therefore, also there was no error in answering issue No. 2 as so rightly held by the Trial Court. 7.1 For Issue No. 3, since we agree with the findings of the Trial Court on the basis of evidence, it will be apt to reproduce Paras 12 to 14 and 17 of the judgment under challenge, which read as under: “12. It is an admitted fact that the plaintiff had purchased a blank tender and had failed in the same, and the tender of the plaintiff was accepted by the defendants and a regular agreement bearing no. B/1/37 of 1983-84 was entered into between the plaintiff and defendants. It is an admitted fact that the plaintiff had purchased a blank tender and had failed in the same, and the tender of the plaintiff was accepted by the defendants and a regular agreement bearing no. B/1/37 of 1983-84 was entered into between the plaintiff and defendants. As per the terms and conditions laid down in the contract agreement and also the work order issued to the plaintiff, the plaintiff was required to commence the work from 13.12.1983 and the said work was required to be completed within a period of 8 months on or before 12.8.1984. The learned advocate for the plaintiff has argued that they have call upon the defendants for production of document vide Exh.21, wherein the plaintiff has called upon the defendants for furnishing estimate and the said estimate is prepared for executing the work which is put to tender and accordingly looking to the said exhibit the plaintiff had filed in the said tenders and in the said estimate. It has been not provided to carry out the work of souring and shuttering in its full reaches, and if the estimate then in that circumstances the plaintiff would have proved the said documents that the work of souring and shuttering was not provided many places and by non-production of the said estimate which being in power and possession of the defendants by non-production of the said defendants. The plaintiff requested that an adverse inference was required to be drawn and for which the plaintiff places reliance on AIR 1968 S.C. 1413 . Further argued that the plaintiff has, during the execution of the work informed the department regarding souring and shuttering done at various places vide Exh.66, 87, 89, 91 and 112, on account of the said additional work has been delayed. 13. The first contention raised by the plaintiff is that the defendants were required to make the payment of the work done every month regularly. Looking to the contract Exh.118 and Clause 8, 9 and 10 of the said contract it is stated that payment of work done regularly every month. The witness of the plaintiff has mentioned in his oral evidence that the defendants were not having enough funds for making payments. And therefore, the plaintiff had informed vide Exhibits 61, 62, 63, 65, 66, 68, 70, 71, 91, 92, 95, 97, 98, 106, 108, 110, 112, 116, 152. The witness of the plaintiff has mentioned in his oral evidence that the defendants were not having enough funds for making payments. And therefore, the plaintiff had informed vide Exhibits 61, 62, 63, 65, 66, 68, 70, 71, 91, 92, 95, 97, 98, 106, 108, 110, 112, 116, 152. Looking to the letters addressed to the defendants department for payment and regarding non-availability of fund and, therefore, on account of non-payment, which is also the breach of the contract. It is also argued by the learned advocate for the plaintiff that the defendants were required to pay the secure advance on the material and the defendants have failed to make the payments of defendants for making the payment vide Exh.62, 73 and 91. Looking to the letter produced by the plaintiff, the defendants have not making the payment as secure advance on the material brought on sight, and therefore, the defendants committed the breach of the terms and conditions of the said contract. 14. Another contention raised by the plaintiff that there was much variation in the specification and whereby the plaintiff was required to execute the work entirely in different situation. The defendants advocate was argued that the argument advanced by the plaintiff side advocate does not support the plaintiff’s case because contractor has to act and work as per the tenders specification as well as an instruction the contractor did not make any progress in the work. In this case to the documentary evidence on record it is clear that the plaintiff had informed the department much variation vide Exhibits 62, 91 and 112, but the defendants have not given any reply to the said letter and, therefore, it is clear that there was much variation in the work to be carried out then that provided under specification and necessary decision and instruction required to be provided were not provided timely. xxx xxx xxx 17.......Looking to the arguments advanced by both the parties and looking to the documentary evidence on record, it is clear that the plaintiff had informed to the defendants for supplying the materials and letters are produced vide Exhibits 61, 66, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 84, 85, 90, 91 and 96. xxx xxx xxx 17.......Looking to the arguments advanced by both the parties and looking to the documentary evidence on record, it is clear that the plaintiff had informed to the defendants for supplying the materials and letters are produced vide Exhibits 61, 66, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 84, 85, 90, 91 and 96. The plaintiff had informed the defendants for supplying the materials and looking to this documentary evidence, it is clear that the plaintiff’s work was not completed within stipulated time. The plaintiff has raised another contention that there was heavy water in the excavated land and hence the defendants board had called upon the plaintiff to provide encashing of cement concrete of (1:3:6). It is argued by the learned advocate for the defendants that the plaintiff was supposed to deal as per tender’s specification and the work of dewatering is included in digging item. If the digging to the higher level is concerned and if there is no pressure of water the plaintiff himself has to make necessary arrangement at his level and therefore, regarding encashing of cement concrete is not tenable. Looking to the documentary evidence as well as oral evidence produced by that plaintiff the plaintiff witness have clearly mentioned in his oral evidence at Exh.151 regarding the said facts and the plaintiff had informed to the defendant of the said work done vide Exh.75, 76, 89, 91, 93, 95, 96, but the defendants have not produced documentary evidence as well as oral evidence regarding this work was not done by the plaintiff. And, therefore, it is clear that the plaintiff work was not completed within the stipulated period............Therefore, it is clear that the defendants have failed to provide the said quantity-wise programme and looking to the documentary evidence there is no any quantity wise programme has been given. Even in the oral evidence of the defendants witness has mentioned that no any quantity-wise/itemwise programme has been provided to the plaintiff. In this circumstance, the defendants committed the breach of the terms and conditions of this contract. The plaintiff has raised another contention that due to cropped upto extra item and failure to finalise the same the work could not be progressed. In this circumstance, the defendants committed the breach of the terms and conditions of this contract. The plaintiff has raised another contention that due to cropped upto extra item and failure to finalise the same the work could not be progressed. It is argued by the learned advocate for the defendants that as the place of sub-pumping station was changed by hydraulic station was changed by for that the contractor has been paid extra item in tenth running bill dated 12.03.1986. Looking to the documentary evidence produced by the plaintiff Exhibits 61, 66, 75, 87, 88, 89, 91, 93, 98, 106, 108 and 112. The plaintiff had informed to the defendants that the said extra item extra work no provided under the contract and for which defendants were required to make the payment. But the defendants had not replied to the plaintiff his letter regarding the extra work which not provided under the contract. And therefore, the plaintiff can not completed his work within stipulated time.” 8. The main bone of contention between the counsels for the respective parties was Claim 1(B) and 2(B), which read as under: “23. Looking to the arguments advanced by the plaintiff as well as the defendants in the present case, there is no such condition insisted upon contractor for delay in the work of extension of the period. In fact the extension was sought by the plaintiff himself first extension was granted by the defendants and second extension was not granted by the defendants. In the present case, in tender condition there is an express condition no. 10, which read as under: “10. Under no circumstances shall any contractor be entitled to claim enhanced rates for any items in this contract.” Thus not only that there is no express condition on escalation clause in this contract, there is express and specific condition against claiming high rates. The defendants advocate has further relied upon the judgment reported in AIR 1988 Supreme Court, Page No. 1166 wherein Hon’ble Supreme Court has held, in the abovesaid decision, we are of the opinion the High Court was right that District Judge was entitled to examine the contract. The defendants advocate has further relied upon the judgment reported in AIR 1988 Supreme Court, Page No. 1166 wherein Hon’ble Supreme Court has held, in the abovesaid decision, we are of the opinion the High Court was right that District Judge was entitled to examine the contract. In order to find out the legality of the claim of the appellant regarding extra cost towards rise in prices of material and labour as was pointed out by the learned District Judge, Clauses 2.16 and 2.4 stipulated that the contractor had to complete the work in spite of rise in prices of material and also rise in labour charges at the rates stipulated in contract this being so and contractor having completed the work, it was not open to him to claim extra cost towards rise in prices of materials and labour. The arbitrator misconducted himself in not deciding the specific objection raised by the State regarding the legality of extra claim of the appellant.” Relying upon above cited authorities defendants advocate argued that the plaintiff is not entitled for this claim. 24. The plaintiff witness has mentioned in his oral evidence regarding the rise on account of labour and material, and as per oral evidence the plaintiff is claiming rise of at the rate of 40%. The plaintiff’s advocate has relied upon judgment reported in AIR 1980 NOC 47 and AIR 1985 SC 607 in that case the work was to be completed within one year, but the contractor was requested to spread over the work for 2 years or more due to the less budget provision. However, the contractor was agreeable to spread over the work for 2 years more as suggested on condition that extra payment will have to be made to him in view of the increase rates either of the material or wages. In this circumstances, the plaintiff has submitted a final bill claiming 20% extra over and above the original rates agreed upon between the parties. The Hon’ble Supreme Court observed that High Court was right in taking the view that the Government was liable to make extra payment for the work done into spread over period of 3 years. In this present case, there is no such condition insisted upon by the contractor for delay in the work of extension of period. The Hon’ble Supreme Court observed that High Court was right in taking the view that the Government was liable to make extra payment for the work done into spread over period of 3 years. In this present case, there is no such condition insisted upon by the contractor for delay in the work of extension of period. In fact, the extension was sought by contractor himself and in the present case in the tender condition there is an express condition regarding enhance rates. The plaintiff has relied upon the another judgment of Hon’ble Delhi High Court has reported 1980 NOC 47. wherein Hon’ble Delhi High Court has held that, if a contractor is require to do work within certain time and the defendants fails to vacate the premises for carrying out the required work and after expiry of contracted period there has been sharp increase in prices of the material the defendants in prices of the material the defendants cannot compel the contractor to carry out the work at the same rates at which he had agreed to do the same within the stipulated period. Advanced by the plaintiff as well as defendants arguments and facts of this case and authority cited before me Hon’ble Supreme Court has held in the judgment reported 1988 AIR 166 and Hon’ble Gujarat High Court has held judgment reported in 1992 (1) GLH 683 . In the present case, clause-10 clearly bears any claim for increased rates for delay in the present case the ratio laid down by the Hon’ble Supreme Court and Hon’ble Guj. High Court the plaintiff is not entitled for any amount under this head. xxx xxx xxx 31..........In this case, it is true that the plaintiff has demanded Rs. 6,82,809/- from the defendants under this head, but he has not produced any account for the perusal of Court, so Court can estimate upto what extent the plaintiff is entitled to recover any loss under this head. But looking to the argument advanced by the plaintiff that the plaintiff has suffered a loss for the head office expenses, staff and labourers pay etc. and overstay such delays machinery etc. But looking to the written argument of the plaintiff that he has based on formula the sum works the computation of the loss that the consideration the 10% and various values as under. and overstay such delays machinery etc. But looking to the written argument of the plaintiff that he has based on formula the sum works the computation of the loss that the consideration the 10% and various values as under. The plaintiff has stated prolong period of 38 months (i.e. 12.8.1984 to 5.10.1987), but looking to the documentary evidence the plaintiff had written a letter to the defendants on 30.6.1984, which is produced at Exh.124. Looking to the letter, the plaintiff had requested for extension of time limit and on the request of the plaintiff, the defendants had extended time limit upto 31.7.1986. Looking to the such correspondence, the time limit was extended upto 31/7/86 on request of the plaintiff and looking to the contract agreement which is produced at Exh.118, the plaintiff has to complete the work upto 12.8.1984. But the plaintiff had sought an extension upto 31.7.1986 and, therefore, upto the period of 31.7.1986, it is not prolong period. Looking to the documentary evidence prolong period is started from 1.8.1986 and, therefore, 1.8.1986 to 30.9.1987, 14 months period of prolong period and based on the plaintiff formula the sum works out as under: 10/10 x 1437493/8 x 14 = 2,51,561.27 And based on which the total amount works out to Rs. 2,51,561.27 ps. The plaintiff is entitled to recover Rs. 2,51,561.27 ps from the defendant under this head.” 9. On other issues too, we do not find that the judgment and decree of the Trial Court be interfered with. 10. For the aforesaid reasons, the present first appeal along with cross objection is dismissed. Civil Application for additional evidence is also dismissed, accordingly.