JUDGMENT : A.Y. KOGJE, J. 1. This appeal is filed by the appellants against judgment and order dated 05.05.1999 passed by the Civil Judge (Senior Division), Bharuch in Special Civil Suit No.100 of 1991. 2. The original plaintiff is the contractor, while original defendant No.2 is the principal, defendant No.3 is the Executive Engineer of defendant No.2 and defendant No.1 is the State. 3. The tender was invited for construction of 408 B-type and 258 C-type quarters for Narmada Project at Kevadia Colony. The plaintiff filed suit for recovery of Rs.37,58,657/- and interest at the rate of 18% from the date of suit under several claims and the Civil Court by the impugned judgment and order, partly allowed the claim and decreed the suit for an amount of Rs.15,95,677.44 with simple interest at the rate of 15% from the date of filing of the suit till realisation. Being aggrieved by the impugned judgment and order, initially defendant Nos.2 and 3 preferred the present appeal against original plaintiff and defendant No.1-State. Later on, by order dated 23.06.2025, the State was transposed as appellant No.3. 4. The Court admitted the appeal by order dated 02.09.1999 and in accompanying Civil Application No.5446 of 1999, this Court passed an order granting ad interim relief in terms of para-9(a) on condition of deposit of decreetal amount. 5. Pending the appeal, an amendment was moved to raise a specific legal contention that the Civil Court has no jurisdiction to decide the dispute in view of the provisions of the Gujarat Public Works Contract and Disputes Arbitration Tribunal Act, 1992, which amendment was granted by this Court on 02.09.1999. 6. Though in the appeal memo, several grounds are raised, learned Advocate for the appellant has mainly argued on the issue of limitation, contending inter alia that considering the conclusion of the contract and the final bill having been paid on 17.10.1984, filing of the Civil Suit in the year 1991 is time barred. 7. Learned advocate has argued that the suit itself was not maintainable on the ground of limitation. According to the learned advocate, the limitation will ticking only on the first instance of the breach itself, which according to her, was prior to the final payment made in October, 1984. She has also relied upon the decision in the case of State of Gujarat Vs. According to the learned advocate, the limitation will ticking only on the first instance of the breach itself, which according to her, was prior to the final payment made in October, 1984. She has also relied upon the decision in the case of State of Gujarat Vs. Kothari and Associates reported in AIRONLINE 2015 SC 206 and relied upon Paragraph Nos.4 and 11 to make out a case that the breach which was alleged in the plaint itself had taken place pending the contract, and therefore, the limitation would have begun prior to Year-1984, whereas the suit has been filed in Year-1991. However, during the course of arguments or from the pleadings, there is nothing coming on record to indicate that the breach has taken place on any particular date because of which the limitation would have begun. 8. The respondent-original plaintiff has supported the impugned judgment and order. However, there is no cross Objections in connection with the claims which were not allowed. It is submitted that the respondent-plaintiff was able to satisfy the claims under each head and was also able to substantiate it by way of evidence on record. He has referred to the deposition of the plaintiff at Exh.45 and the documentary evidence, particularly the tender document. 9. Learned advocate for the respondent has submitted that at the stage of payment of final bill in October, 1984, had given a cause of action for the appellant to invoke the clause of arbitration. As the matter was not referred to arbitration, the respondent had to file a suit before the Civil Court, wherein, the Civil Court had partly referred the issues for arbitration, whereas for the remaining issues have left it upon the parties to pursue the civil suit. Considering the chronology of events, wherein the suit for arbitration was disposed of on 30.11.1990 would give new lease of limitation. 10. Having heard learned Advocates for the parties and having perused documents on record, the plaintiff in para-7 specifies the heads under which the claim is made, which is as under:- Sr. No. Head of the Claim Particulars 1. On account of illegal and unwarranted recoveries and under-payments, 2,43,962/-. (A) On account of increased quantities. 10. Having heard learned Advocates for the parties and having perused documents on record, the plaintiff in para-7 specifies the heads under which the claim is made, which is as under:- Sr. No. Head of the Claim Particulars 1. On account of illegal and unwarranted recoveries and under-payments, 2,43,962/-. (A) On account of increased quantities. 4,000/-The plaintiff says that when the defendant/department is responsible for getting increased quantities executed from the plaintiffs, the plaintiffs are not at all concerned with whether such excess has mot with the approval of the competent authority. However, the defendant/department has illegally recovered an amount of s. 4000/- from the provisional bill. Hence, the plaintiffs claim refund of the said amount from the defendants. 2. On account of under-payment in item no.3, 6765/-. The plaintiffs say that against the original condition No.6 of the Letter dated 15/3/1984, the plaintiffs had offered the rebate of a 5/- per Cit with ceiling limit of Rs. 5000/-for use of gravel / metal in place of brick-bets in C.C. 1:5:10 vide their letter dated 23/3/1982. This rebate was neither withdrawn nor modified in their letter dated 26/5/1982. However, the defendants have illegally taken rebate at the rate of Rs.10- per CM. The total quantity of item no.3 measured and paid is 1176.54 CM and at the rate of Rs.5/- per CM, the rebate should be Rs. 5082/70, limited to 5000/-. The plaintiffs therefore claim. 6775/- (i.e. Rs.11,765/- loss of Rs.5,000) on this count. 3. On account of recovery of bricks. 1,52,427/- the defendant department was to supply 1,20,77,500 nom. of bricks at the rate of 197/- per 1000. However, the defendant/department has supplied only 30,99,450 bricks. The bricks supplied by the department were undoriozed, unriped, as well as there van very heavy breakage. Time and again, the plaintiff had brought this fact to the notice of the defendants vide plaintiff's letter anted 20/9/82, 4/10/82, 12/10/83, 29/11/84/ 17/12/82) 20/12/82 22/12/82 and 10/4/83. In these letters, it was specifically informed that because of defective tricks there is more wastage. hence, recovery should be made at the rate of Rs. 420/- per CM. However, the defendant/department has recovered full cost of Rs. 30,99,450 nos. of bricks. Considering the consumption of bricks at the rate of Rs. In these letters, it was specifically informed that because of defective tricks there is more wastage. hence, recovery should be made at the rate of Rs. 420/- per CM. However, the defendant/department has recovered full cost of Rs. 30,99,450 nos. of bricks. Considering the consumption of bricks at the rate of Rs. 420/- per CM for masonry wall and at the rate of 51/- per CM for partition wall, only 23,25,715 non of bricks were required to be recovered. For broken pieces of bricks as well as powered quality of broken bricks the plaintiff had specifically requested the defendant to inform the brick supplier to lift the same vide above referred letters but the defendant/department has not considered the same and the plaintiff had strongly objected at the appropriate time vide above letters for illegally recovering of the costs of bricks. The plaintiff, therefore, claims refund of excess recovery of the bricks of 7,73,735 nos at the rate of 197/- per 1000, which comes to Rs. 1,52,427/-, Thus, the plaintiffs claim this amount from the defendants. 4. On account of water charges. 58,720/- The plaintiffs say that their tender was accepted with condition no.2 that the defendant/department should give water connection from the nearby distribution and charge as terrif i.e. liters basis, the defendant/dptt. Made lump sum recoveries from the bill no.4 to 31, Rs. 46,075/- and further amount of Rs.17,311/- i.e. in all, Rs.63,396/-was recovered from the provisional bill. The defendant/deptt. has refunded. 4,657/55 on 23/2/1988. As the defendant/deptt. had not installed water meters to know the exact quantity of water consumed by the plaintiffs. The plaintiffs object to any other ununiform method of working out consumption of water. The plaintiffs, therefore, claim refund of recovery of Rs.58,728/- on this count from the defendants. 5. On account of electric consumption charges Rs. 17,842/16 ps. The plaintiffs day that under the heading Electric Power Supply at page 24, recovery was to be effected at the rate of 0.72 ps. per unit for single phase and at the rate of 0.65 ps. per unit for three phase consumption. The defendant/department has made lump sum recoveries from R.A. Dill no.9 to 33 for Rs.29,300/- and further amount of 12,842/16 ps. was recovered from the supplementary bill paid on 18/11/1987. In addition, an amount of M. 5,000/-was paid by the plaintiff vide cheque no.517049 on 31/7/84 as demanded by the defendant/department. per unit for three phase consumption. The defendant/department has made lump sum recoveries from R.A. Dill no.9 to 33 for Rs.29,300/- and further amount of 12,842/16 ps. was recovered from the supplementary bill paid on 18/11/1987. In addition, an amount of M. 5,000/-was paid by the plaintiff vide cheque no.517049 on 31/7/84 as demanded by the defendant/department. The plaintiffs claim the refund of Rs.12,842/16 ps. (recovered from the Supplementary final bill) as well as cash payment of 5,000/ by cheque on 31/7/84, in all, a sum of Rs.17,842/-was recovered, which the plaintiffs claim refund thereof from the defendant/department. 6. On account of excess recovery of C.G.I. Sheets Rs. 4,200/. As per the common condition at page 30, C.G.I. Sheets were to be charged at the issue rate but actual recovery made was more, the plaintiffs had taken 20 M.T. of C.G.I. sheets at the issue rate, the amount to be recovered should be Rs.1,40,000/-. However, the defendant/department has recovered Rs. 1,44,200/-. Thus, the claim of refund of excess recovery made from the plaintiff is Rs.4700/-. The plaintiffs therefore claim the refund of the said amount from the defendants. 7. On account of Breakage of tiles and reduced efficiency Rs. 1,14,690/-. On account of issue of p.p.c. cement in place of ordinary Portland cement, for manufacture of plain as well no mosaic tiles, there was heavy breakage roughly upto 10% tiles while casting, pledng, banding-rehandling, etc., as well an, manufacturing efficiency vas also reduced by 20%. The plaintiffs, therefore, claim extra breakage at 10% as well as extra expenditure of about 20% on account of reduced efficiency. The total quantity of tiles manufactured from the P.P.C. is about 38,235 SM. The plaintiffs therefore claim for about 3823 SM of tiles at the rate of Rs. 25/-per SM i.e. Rs. 95,575/- and at 20%, on Rs. 95,575/- i.e. Rs. 19,115/- in all, Rs. 1,14,690/-. Thus, the plaintiffs are entitled for a cum of Rs. 1,14,690/- from the defendant-department. 8. On account of interest on blocking up of Royalty amount Is. 59,762/-. The plaintiffs say that as per accepted conditions of the contract, the royalty due and payable on account of mineral materials used by the plaintiffs in this work was to be paid by the plaintiffs directly to the Mines and Minerals Department and the plaintiffs were paying the royalty to the said department. 59,762/-. The plaintiffs say that as per accepted conditions of the contract, the royalty due and payable on account of mineral materials used by the plaintiffs in this work was to be paid by the plaintiffs directly to the Mines and Minerals Department and the plaintiffs were paying the royalty to the said department. In absence of any specific provisions in the accepted tender for recovery of royalty from the works bills, the defendant/department had no authority to recover any sum towards royalty. However, the defendants department had unauthorisedly recovered a huge amount of Rs. 64,313/- and kept in deposit for very long period upto 4/88. On account of blocking up of the plaintiff’s huge amount, the plaintiffs have undergone the loss of interest as under:- 9. On account of unexecuted work. 2,75,646/-. The plaintiffs say that the contract between the parties was for Rs.1,13,69,624/-, but, during the course of execution, the defendant/department, on account of abnormal decrease in the quantities as well as item not got executed, the value of work amounting to Rs. 18,44,306/- was not got executed from the plaintiff. Thus, depriving the reasonable right of profit of 15% of the plaintiff, the plaintiffs claim loss of profit of Rs.2,76,646/- from the defendant/department. 10. On account of overheads establishment and other Supervisory expenditure Rs.2,55,320/-. The plaintiffs say that during the prolonged period of the contract, the plaintiffs had to incur extra expenditure on overheads, establishment and other supervisory expenditure including the plaintiff's infructuous personal efforts, which the plaintiffs need not have incurred if the work would have been allowed to be completed by the original stipulated date of completion of 23/6/1984. As the plaintiffs had to incur the said extra expenditure dun to delay, hindrances and branches of the contract on the part of the defendant/department, the plaintiffs are entitled for compensation at the average rate of Rs. 1,23,345/- for Rs.2.07 prolonged months i.e. Rs.2,55,374/. Thus, the plaintiffs are entitled for a sum of Rs.2,55,324/- from the defendant/department. 11. As the plaintiffs had to incur the said extra expenditure dun to delay, hindrances and branches of the contract on the part of the defendant/department, the plaintiffs are entitled for compensation at the average rate of Rs. 1,23,345/- for Rs.2.07 prolonged months i.e. Rs.2,55,374/. Thus, the plaintiffs are entitled for a sum of Rs.2,55,324/- from the defendant/department. 11. On account of prolongation of machinery Rs.1,98,720/- The plaintiffs say that due to the delays, hindrances and broaches of the contract on the part of the defendant/department, the plaintiffs had to prolong their machinery like concrete mixture, vibrators, puma, car, trucks, elevated lift, machine cutting, etc., in the prolonged period of contract resulting in extra expenditure/ losses to my clients to the tune of atleast Rs.95,000/- per month on an average of Rs.1,98,720/- for the prolonged period of 2.07 months. The plaintiffs therefore, claim the said amount of Rs. 1,98,720/- as compensation on this account from the defendant/department. 12. On account of Prolongation of centering, shuttering, Scaffolding. 2,07,000/- The plaintiffs say that they had to incur extra expenditure and/or suffer losses on account of prolongation of their centering, shuttering, scaffolding and other construction equipments for which, the plaintiffs are entitled to be compensated at the average rate of Rs.1,00,000/- or Rs.2,07,000/- for the prolonged period of 2.07 months. The plaintiffs therefore claim a sum of Rs.2,07,000/-- as compensation from the defendants/deptt. 13. On account of prolongation of direct labour gange etc.. 1,77,350/ The plaintiff say that they had to prolong their direct labour gangs in the prolonged period of contract. The plaintiffs therefore, claim compensation at the rate of Rs.85,685/- for 2.07 prolonged months, which comes to Rs.1,77,360/- thus, the plaintiffs are entitled for a sum of Rs.1,77,360/- from the defendant/department. 14. On account of infructuous expenditures-Rs.12,15,090/-. The plaintiff say that during negotiations and modifications of various conditions, the plaintiffs had guaranteed to complete the entire work in only 21 months if the materials of Schedule-A are supplied to the plaintiff in time, drawings, designs are given in time and all the assistance as assured are given in time. Accordingly, the whole work of Rs.2,95,02,710/- was to be completed in the guaranteed period of 24-months, but, en account of delays, hindrances and breaches, the works could be completed in 26 months. Accordingly, the whole work of Rs.2,95,02,710/- was to be completed in the guaranteed period of 24-months, but, en account of delays, hindrances and breaches, the works could be completed in 26 months. Hence, out of 24 months, about 3 months were infructuous resulting into losses as under:- (a) Infructuous expenditure on overhead establishment and other supervisory expenditure including personal efforts at Rs.1,23,345/- for 3 months, which comes to Rs. 3,70,035/-. (b) Infructuous expenditure on machinery for 3 months at Rs.96,000/- per month, which comes to Rs. 2,88,000/-. (c) Infructuous expenditure on centering, shuttering, scaffolding etc. of Rs.1,00,000/- for 3 months, which comes to Rs. 3,00,000/-. (d) Infructuous expenditure on direct labour gangs for three months at Rs. 85,685/- which comes to Rs. 2,57,055/-. Thus, the plaintiffs claim a total sum of Rs. 12,15,090/-. 15. On account of Interest The plaintiffs say that the defendant/department were required to make the above said payments but have illegally and unwarrantably withheld the said amounts. The plaintiffs were called upon to make the payment on 3/6/88, and then a legal notice was served to the defendant no.23/3/1991 through their advocate, for making the payments of the above said claims, but, till date, the defendants have not made any payment to the plaintiff. Therefore, the plaintiffs are entitled for interest 12% per annum on the above said sum Rs.27,43,562/- from 03/6/88 till the date of filing of the present suit. Accordingly, the plaintiffs are entitled for a sum of is Rs.10,10,095/- towards interest on the above said claims. The plaintiffs are, therefore, in all, entitled for a total sum of Rs. 37,58,657/- from the defendants for which, this suit is filed for recovery of the same from the defendants. 11. Vide Exh.15, issues were framed. Out of the 14 issues relevant for the purpose of this appeal are following issues:- “(3) Whether the plaintiff are entitled to recover Rs.37,58,657.00 as alleged with various claims mentioned in plaint para7(1)(A) to 7(1)(R) and7(2) to 7(10) as alleged? (4) Whether the plaintiff is entitled to claim interest ? (5) What amount found due ? (7) Whether the suit in the present form and of the present nature is not maintainable at law as alleged in the written statement Exh.12 ? (12) Whether the suit is barred under the period of limitation?.” 12. The relevant issue being the claim under various heads has been dealt with. (5) What amount found due ? (7) Whether the suit in the present form and of the present nature is not maintainable at law as alleged in the written statement Exh.12 ? (12) Whether the suit is barred under the period of limitation?.” 12. The relevant issue being the claim under various heads has been dealt with. The Civil Court, while answering issue No.3, observed that the plaintiff have to prove that they are entitled to recover Rs.37,58,657/- ?s alleged. It is observed as under:- “In para 7(1)(A), the plaintiff have claimed a sum of Rs.4,000/- on account of increase in quantity, and the plaintiff have mentioned that, due to increase in the quantity, a sum of Rs.4,000/- has been recovered from the bill Exh.111 page 613, wherein it is ample clear that the said amount has been kept in deposit and the said amount, till date, has not been released and the same was admitted by the defendant witness at Exh. 101. This amount being for the work of excess quantity executed and the approval thereof has not been obtained by the defendants from their higher authority, and hence, kept in deposit and the same being the amount of work done and illegally kept in deposit. Therefore, the said sum of Rs. 4,000/- is proved by the plaintiff. Accordingly, they are entitled for the said claim. In para 7(1)(B), the plaintiff have claimed Rs. 6,765/- The plaintiff say that, as per the original conditions of the letter dated 15.3.1982 and 23.3.1982 which is at Exh.115 page No.77 to 80 and statement page 81 Sr. No.6, the plaintiff had offered rebate of Rs.5/-per CM with the ceiling limit of Rs.5000/- per using the gravel/metal in place of brick bats in CC 1:5:10 the plaintiff's letter dated 23.3.1982, and the said rebate was neither withdrawn nor modified and even looking to the work order, Exh.115, page 115 to 204, the said letter has been made a part of the Contract conditions, and the defendants are only entitled to recover a sum of Rs. 5000/-instead of which, the defendants have recovered a sum of Rs.11,176/54 ps. and the said recovery is more than that agreed upon and accordingly, the plaintiff have proved and they are entitled for the refund of Rs. 6,775/- from the defendants for the said claim. 5000/-instead of which, the defendants have recovered a sum of Rs.11,176/54 ps. and the said recovery is more than that agreed upon and accordingly, the plaintiff have proved and they are entitled for the refund of Rs. 6,775/- from the defendants for the said claim. In para 7(1)(C), the plaintiff have claimed a sum of Rs.1,52,427/- The plaintiff say that, as per Exh.128, Schedule-A, page 70, the defendants were required to supply the quantity of bricks as provided in the Agreement page 187. wherein the bricks have been mentioned as "First Class Bricks and the Second Class Bricks shall be similar to First Class Bricks" and the quality wise bricks are to be as"First Class Bricks" but the second class bricks as defined being slight distorted rounded eddes. The Schedule-A provides bricks to be supplied by the defendants, and therefore, the defendants have to supply the bricks of good quality. But, during the courses of the work, the bricks as provided by the defendants were of inferior quality and there was heavy breakage. for which, the plaintiff have from time to time written various letters to the department, which are at Eh. 115 page 50, 56, 57, 60, 61, 64, 84, 97, 111, 115 and 117 and at page 274, and Exh. 116, page 288, the bricks are shown to be needed in 1 CM of the work for 420 in numbers. Similarly, for partition 51 per SM and not CM as mentioned in the plaint. Thus, multiplying the total numbers of bricks required of good quality for carrying out the work and the item as executed of the bricks supplied by the department, from final bill which is at Exh.111, page 534, and Exh.116 page 289, item No.4, 8 and 9 and items and quantities executed and multiplying the same with the consumption as mentioned above, the total number of bricks of first class can be said to have been supplied to the tune of 2336409 nos. Now, against which the defendants have recovered the cost of bricks to the tune of 3099450 numbers, and the said recovery is not consonant with the actual bricks of good quality to be supplied, and therefore, the bricks which were supplied supplied of the inferior qualities to the tune of 763000 nos. and the rate of recovery made recovery from various R.A. Bills of being Rs.197. per 1000 nos. and the rate of recovery made recovery from various R.A. Bills of being Rs.197. per 1000 nos. The plaintiff are entitled for Rs.1,50,319, for the said claim. In para 7(1)(D), the plaintiff has claimed the amount of Rs.58,728/- on account of water charges. The plaintiff say that, as per Exh. 128 page 23, there is a condition No.2 of the Agreement which provides to supply of water by the department on ltr. basis and accordingly, meter was required to be provided by the department for charging the water consumption, but the department have not provided the meter and without providing the meter, have Rs. 58,728/- because, the conditions for charging water was not on the basis of lump sum. but, on the basis of ltrs of water used. The defendants argued that looking to Exh. 128, page 23, condition No.2, mentions that, all expenditure on account of water supply and consumption of water has to be argument of Learned Advocate for the defendants. and hence, the plaintiff are not entitled for any sum against the claim. So, I reject the claim of the plaintiff, In para 7(1)(E), the plaintiff have claimed the amount of Rs.17,842/16ps. on account of electrical consumption charges. The plaintiff argued that, under the heading "Electric Supply", at page 24 of Agreement Exh. 128 wherein, it has been mentioned that the recovery has to be effected at the rate of 072 per unit for single rate at 085 for unit for 3 phases consumption, and, looking to the same, the consumption charges, which the plaintiff were required to pay was based on unit basis. Further, in para 4, it is mentioned that the demand charges at at the GEB rate will be recovered from the contract, as per his demand. For the above stipulation, it was clear that no any recovery on the lump sum basis can be recovered. The defendants have recovered various amount from various R.A. bills and after completion, a sum of Rs. 12,842/16 ps. was recovered from the supplementary bill dated 18.11.1987, and thereafter, an amount of Rs.5000/- was called upon to be paid by the plaintiff on 31.7.1984 which the plaintiff has paid. Thus, a sum of Rs.17,842/- Was demand by the defendants and paid by the plaintiff, after the work was completed. No any electricity was required. 12,842/16 ps. was recovered from the supplementary bill dated 18.11.1987, and thereafter, an amount of Rs.5000/- was called upon to be paid by the plaintiff on 31.7.1984 which the plaintiff has paid. Thus, a sum of Rs.17,842/- Was demand by the defendants and paid by the plaintiff, after the work was completed. No any electricity was required. Thus, the excess recovery made by the defendants, amount to Rs.17,842/16 being refunded back to the plaintiff, and the plaintiff are entitled for Rs.17,842/16ps. from the defendants against this claim. In para 7(1)(f), the plaintiff have claimed a sum of Rs.4200/-on account of excess recovery on C.G.I. sheets. The plaintiff argued that, as per the terms and conditions of the contract, condition at page 30 of Exh. 128, the plaintiff have claimed for CGI sheets, wherein, it has been mentioned that, the same will be issued at the prevailing issue rate. The plaintiff has taken 20 M.T. of C.G.I. sheets and at the prevailing issue rate, the amount works but to Rs.1,40,000/- against which, the defendants have recovered Rs.1,44,200/- and the said amount as recovered has not been denied by the defendants. and hence, the plaintiff are entitled for Rs.4,200/- against this claim, from the defendants. In para 7(2), the plaintiff have claimed a sum of Rs.1,14,690/- on account of breakage of tiles and reduced efficiency. The plaintiff argued that, as per the conditions of the Contract, Exh. 128. Schedule-A, page 70, the defendants were required to supply the cement for tiles which is at Sr.No.1(B), for which the defendants were to charge the rate of Rs.854/-.. The cement was required to be supplied of the quality as provided in the Contract Agreement, i.e. M3, page 177, which mentions regarding ordinary Portland cement asper 199-269- 1967. This cement known as Gray cement, and for manufacturing of tiles M5 colour cement i.e. white or gray Portland cement was required to be provided. The cement was required to be supplied of the quality as provided in the Contract Agreement, i.e. M3, page 177, which mentions regarding ordinary Portland cement asper 199-269- 1967. This cement known as Gray cement, and for manufacturing of tiles M5 colour cement i.e. white or gray Portland cement was required to be provided. Even looking to M-28, at page 198, it mentions regarding ordinary Portland cement and colour cement in marble mosaic tiles which also being gray cement as mentioned above instead of ordinary Portland cement, the defendant have provided pozolona cement and the maid pozolona cement being made our of brick bat l.e. read in colour and of reduced strength and even otherwise the contract provided for ordinary Portland cement, and due to supplying of cement other than that provided in the contract, there was breakage. Against which, the defendants have not mentioned that the breakage to the said extent is not correct and therefore, it is ample clear that there is breakage. Due to breakage, extra efforts and extra labour involved, has resulted in the reduced efficiency, an therefore, on account of the same, the plaintiff have claimed due to breakage, a rate of Rs.25/- per SM, amounting to Rs.95.575/- and 20% on the said amount, due to reduction in efficiency, works out to Rs19,115/- and the said amount as averred in the oral evidence, has remained contravened and undisputed by the defendants, and the plaintiff are entitled for Rs.1,14,690/- from the defendants against this claims.In para 7(3), the plaintiff have claimed a sum of Rs.59.762/-account of interest on blocking of royalty. The plaintiff argued that, looking to Exh. 127, Clause 35, on page 67, which has been deleted at page 47, the said clause of royalty being dealt and therefore, the department has nothing to do as far as the royalty is concerned and it was the obligation of the plaintiff to deal with the department directly, but, instead of which, the department, illegally and unwarrantedly without any provisions under the Agreement, has made recovery of the royalty from the work bill and recovered Rs. 64,313/- and kept in deposit for a long period and the same was released on 4.8.1988. The oral evidence at Exh. 64,313/- and kept in deposit for a long period and the same was released on 4.8.1988. The oral evidence at Exh. 45, and the same has remained uncontradicted and undisputed, whereby, the recovery as made is not disputed and looking to the contract provision, the department has no any right to withhold any amount and thereby, the plaintiff claims the loss caused to plaintiff, the plaintiff are required to be compensated and for that, the plaintiff rely on the judgment reported in AIR 1992, SC, page 732, para 43 and AIR 1992, NOC. 20 (Madras) and AIR 1990 SC p.864 Further the plaintiff have. computed the loss in form of interest by considering 2% rate per month which works out to 24% per annum. Looking to page 35 of the Agreement, the defendants themselves have mentioned regarding charging of interest at rate of 20% per annum but I award interest on withheld amount at the rate of 18% per annum. The plaintiff are entitled for a sum of Rs. 44,822/- from the defendants against this claim. In para &(4), the plaintiff have claimed Rs.2,76,646/ on account of unexecuted work. The plaintiff argued that, as per the terms of the Contract, Exh. 121 and as per the Schedule-B. the plaintiff were required to execute the work amounting to Rs.1,13,69,624/- but on account of defendant's reasons, the plaintiff could not execute the work amounting to Rs.18,44, 306/-, and for which, the plaintiff place reliance on Exh.111 which being the saving statement, wherein there total value of work which has been curtailed, has been shown to the tune of Rs. 18,34,114/32 ps. whereas, the plaintiff has not done the work amounting to Rs.18,44,306/- which averments have remained uncontravened and not disputed by the defendants. Going through the Agreement Exh.128, page 62-63 Clause 15, it mentions regarding not required to execute or the work which may involve curtailment, it has been clearly provided that the Enginer-in-charge shall give in writing to the effect from the same. This fact in writing to be informed is mandatory in nature and no any such notice has been served to the plaintiff and in absence of the said notice, the plaintiff are entitled as decided in AIR 1975,SC page 763 and due to non-execution of the said work, the plaintiff have claimed anticipated profit of 15% and the plaintiff place reliance on AIR 1984, So. 0.1703, and the said 15% profit is reasonable as mentioned by the plaintiff witness at Exh.45, and the same has remained uncontradicted and undisputed and accordingly, the plaintiff are anat entitled for works out to Rs.18,34,114/32ps. shown in Exh.116, page 398, and 15% profit, the plaintiff are against this claim. In pare 7(5), the plaintiff have claimed Rs.2,55,324/- on account of overhead establishment and other supervisory expenses. The 23.6.1984, but due to the defendant's reasons, the work was prolonged and the time limit was extended by the Superintending Engineer, without levy of compensation, which is clear from Exh. 115, page 380, and the reasons given therein, being on the part of the defendants, and the failure in terms and conditions of the, contract, and entitled for Rs.2,75,117/- from the defendants plaintiff argued that as per the terms and conditions of the contract, the work in question was required to be completed on or before account of non- performance of the obligations on performance of the obligation, is the breach of the accordingly, when the breach is committed, section 73 of the Indian Contract is attracted which is for the purpose of compensating the compensation the parties who has been put to the loss on account of the breach committed by the other party, and in the present case, the Defendants have committed the breach and on account of the same. Looking to the explanation in Section 73, it says regarding estimation. The estimation is an assessment. The simple meaning of estimation is assessment, and accordingly, looking to Section73 it clearly assessment has to be done. The plaintiff place reliance on AIR 1963 Cal. P 163, Head Note-F, it also also says that, the wrong doer is not required to relieved and the party is required to be compensated by pure guess work. The plaintiff place reliance on AIR 1984, wherein also, the loss was assessed based on another cognate matter before the Supreme Court, and hence, Section 73 clearly contemplates for the purpose of assessment. The plaintiff place reliance on AIR 1984, wherein also, the loss was assessed based on another cognate matter before the Supreme Court, and hence, Section 73 clearly contemplates for the purpose of assessment. The plaintiff are entitled for overhead and accordingly, and the plaintiff are placing reliance on Building & Engineering Contracts by Gajaria, wherein, based on the Rates & Costs Committee Report, it has been mentioned that, 10% are the usual overhead of the Contractor and accordingly, the work if required to be carried out within the period of 24 months, then the overhead works out an under:- The overhead per month on account of staff, chowkidar, insurance of labourers, capital interest and expenditure, which are falling under overhead expenditure, works out to Rs.47.373/- per month. The plaintiff further argued that, they are required to kept their establishment and under the present Contract Agreement Exh. 128, page 35, the plaintiff are entitled for mobilization advance to the extent of 5% of the estimated cost. Now, this mobilization advances are for the purpose of establishment on the site and accordingly, the mobilization in form of establishment expenditure, such as, maintenance of labour camp. site, kitchen, roads, etc. and the expenditure thereof works out to Rs23,686/- per month. On account of overhead and establishment camp etc. the total overhead works out to Rs.71,059/-per month, and as the work was delayed for a period of 2 months and 2 days, i.e. 2.07 months. Thus, the overhead expenditure works out to Rs.1,47,092/-. The plaintiff argued that, they had to maintain the staff, chowkidar on site and looking to the work they had to keep 5 chowkidars per day shift and 5 chowkidar per night shift, and along with the same, 3 nos. of Bhisti per day, for extended period of time were required to be kept and these labourers for the miscellaneous job were kept for cleaning the site, and permanent labour gang of 20 labourers were kept on site, and the total expenditure, per day, on the said count works out as under:- and the plaintiff are incurring the expenditure of Rs.1,670/- per day, and for the period of 2.07 months, they have incurred the expenditure of Rs.1,03,707/- The plaintiff are, in all, entitled for the total expenditure incurred which works out as under:- In para 7(6) the plaintiff have claimed Rs.1,98,720/- on account of prolongation of machinery. The plaintiff argued that, they are entitled for the loss caused on account of prolongation, the loss caused on account of the said reasons, is required to be compensated under Section 73 of the Indian Contract Act and the reasons of assessment compensating the same, have already narrated in detail in the foregoing para, the plaintiff argued that, they had brought various machinaries, like concrete mixture, vibrator, pumps, trucks, elevated lift, cutting machine, etc. etc. and even in the oral evidence, at Exh.45: the plaintiff witness have mentioned regarding the same and they have clearly mentioned that; they were incurring the loss of Rs.96,000/- per month. Now, for the purpose of compensation, the plaintiff are required to be compensated even on the basis of rental value of the machinery and the plaintiff argued that, looking to the machinery which the there, the rent of Rs.96,000/- per month, and the said rent as mentioned has not been contradicted machinery and the expenditure mentioned have been denied to the extent that the same were not on the site for the prolonged period and hence, the amount as claimed being reasonable, the plaintiff say that, for the period of 2.07 months, the plaintiff are entitled for a sum of Rs.1,98,720/- from the defendants, against this claim. In para 7(7), the plaintiff have claimed an amount of Rs.0,07,000/-on account of prolongation of cantering, shuttering and scaffolding. In para 7(7), the plaintiff have claimed an amount of Rs.0,07,000/-on account of prolongation of cantering, shuttering and scaffolding. The plaintiff argued that nor disputed by the defendants, nor the list of along with the machinery, overhead and establishment, they had also brought the centering, shuttering, and scaffolding for executing the above maid work, but, on account of breaches, the said material were also kept for the prolonged period of 2.07 months, and accordingly, the plaintiff have claimed a sum of Rs.1,00,000/- per month for the cost in form of rental value and for the period 2.07 months, the plaintiff have claimed of Rs.2,07,000/- The plaintiff further argued that looking to the present contract, the building being of blocks, wherein, heavy cantering, shuttering and scaffolding were required to be used and 1000 SM of centering were brought for the purpose of executing this work and the rental charges per month being Rs.100/- per month, and the loss ca used, works out to Rs.1,00,000/- per month, which also being quite reasonable, requires to be compensated to the plaintiff, but, in the earlier claim of the plaintiff, the plaintiff have been entitled for Rs.1,00,000/- from the defendants, against this claim. In para 7(8) the plaintiff have claimed Rs.1,77,368/ on account of prolongation of direct labourers gangs, etc. The plaintiff say that, for executing the present work, they had to prolong the labourers for the period of 2.07 months, and for which they are claiming Rs.85,685/- per month, and the said direct labour loss requires to be compensated to the plaintiff. The plaintiff are not entitled for any amount against this claim, because, the plaintiff have already claimed this amount in para 7(5) and this claim is duplicate and hence, the plaintiff are not entitled for any amount against this claim and so I reject this claim of the plaintiff. In para 7(9), the plaintiff have claimed Rs.12,15,090/- on account of infructuous expenditure. In para 7(9), the plaintiff have claimed Rs.12,15,090/- on account of infructuous expenditure. The plaintiff argued that, as per the terms and conditions of the contract, they were required to complete the work within the period of 24 months, and the plaintiff argued that, during the negotiation and discussion, the plaintiff had guaranteed to complete the work within 21 months, if no delay in supply of Schedule -A material is caused, but, as explained in the foregoing para, the defendants failed in supply of Schedule-A material, thereby, the work in question could not be completed within the period of 21 months and accordingly, due to non-completion of the work, within the period of 21 months, which has been prolonged after the stipulated period, i.e. for 2.07 months, for which, for the prolongation after stipulated time period. The plaintiff would have completed the work if no delay in supply of Schedule-A material would have been caused by the defendants, but the defendants have failed in performing the said obligation and for the said reason, the plaintiff had to incur expenditure for three months and due to the breach, the plaintiff are entitled for the present claim which works out to Rs. 12,15,000/- but I totally disagree with the arguments put forth before me, by the Learned Advocate of the plaintiff, because, as per Agreement Exh.128 it is specifically mentioned that, the work was to be completed within a period of 24 months, so, the question of plaintiff had to incur expenditure for stipulated time of contract of three months does not survive and so. I reject the present claim of the plaintiff. In para 7(10), the plaintiff have claimed interest. I reject the present claim of the plaintiff. In para 7(10), the plaintiff have claimed interest. The plaintiff argued that, the present claim is on account of interest for the per suit period and a accordingly the plaintiff place reliance on the Interest Act, 1978, and as per the interest Act, 1978, if the demand of interest is made, then, the interest is payable from the date of demand and hence, the demand of interest was made vide Exh.67 dated 3.6.1988, and thereafter also, the payment of all the claims have not been made and hence the plaintiff argued that, they are entitled for interest at the rate of 12% of the then prevailing current rate of interest, and accordingly, the plaintiff are entitled for interest on debt and damages and the total amount as claimed in all the above claims, of Rs.11,67,284/16 ps. And the interest from 03.06.1988 till 25.06.1991 at the rate of 12% works out to Rs.4,28,393/28ps.” 13. The findings given by the Civil Court are based on sound reasonings and substantiated by the evidence and Court finds no reason to interfere. Moreover, the claims which are not accepted by the Court, there is no challenge by the plaintiff. The Court is therefore, of the view that no interference is required with the claims allowed. 14. The issue raised by the learned advocate for the appellants being that of the suit being barred by limitation. It is pertinent to refer to the cause of action pleaded in the plaint that the cause of action for filing the present suit has arisen within the jurisdiction of this Court; on the date when the tenders were invited, on the date when the tender of the plaintiffs was accepted; on the dates when the work was executed; on the date when the provisional final bill was paid i.e. 17/10/84 and on the date when the security deposit was released and on the date when the last payment was made i.e. on 26/4/88 and on the date when the Secy. P.W.D. Sachivalaya, Gandhinagar was called upon to appoint arbitrator for all claims i.e. on 22/6/88 and on the date when certain claims were referred to the sole Arbitrator by order dated 30/11/90 and on the date when the notice was served upon the defendant no.1 by plaintiff through their Advocate, calling upon the defendants to make payment I.e. on 23/3/91, and has continued till the date of payment. 15. Exh.45 is the evidence of the plaintiff, where it is deposed that the respondent did not prepare my final bill, but a provisional bill was prepared and payment was made to me, but I was not agreeable to such payment; therefore, I accepted the payment with objection. I had issued that provisional bill on 17/10/1984. As soon as I finish the work as per the contract, the Respondent is supposed to make payment to me as per the final bill. Since the payment is supposed to be made in accordance with the objection raised by me in respect of the provisional bill, on 03/06/1988, I had written a letter addressing the Executive Engineer regarding making payment as per the objection raised by me in the provisional bill, but the Respondent did not even make payment of the amount as per that letter. Respondent had submitted reasonable demands before the Secretary and made a request for an Arbitrator as per the clause of the contract, but the Secretary did not make appointment of an Arbitrator. Therefore, I had filed a suit bearing No. 423/1988 before the Court of Civil Judge (Senior Division) of Vadodara for appointment of an Arbitrator, under Section-20 of the Arbitration Act. Vide letter dated 03/06/1988, I had made a demand for our claim. As per the Clause-30 of the contract, the claims bearing Nos. 2 to 11, 13, 14, 15, 17, 19 to 24 and 30 were handed over to the Arbitrator and that since the Clause-30 of the contract does not incorporate the remaining claims mentioned the letter dated 03/06/1988, those claims were not handed over to the Arbitrator and the remaining claims were to be settled / adjudicated by the Court. On 23/03/1991, a notice was issued upon the Respondent through our Advocate and the reply to the said notice had not been given; therefore, I had filed the suit. 16. On 23/03/1991, a notice was issued upon the Respondent through our Advocate and the reply to the said notice had not been given; therefore, I had filed the suit. 16. According to the submission on behalf of the appellant, the provisional final bill was prepared and paid on 17.10.1984 and by letter dated 03.06.1988, the plaintiff respondent made the demand for payment of these dues. Therefore, the suit is beyond limitation. As per Section 5 of the Limitation Act, the suit for recovery is to be brought in within 3 years. However, as pleaded in the cause of action itself, the provisional final bill was paid on 17.10.1984, the security deposit was released on 26.04.1988 and on 22.06.1988, a notice to appoint arbitrator was given and on 30.11.1990 reference was made to the Arbitrator, pursuant to order in Special Civil Suit No.413 of 1988, which was filed under Section 20 of the Arbitration Act. 17. In the opinion of the Court, when certain claims of the respondent-plaintiff were refused to be refund to the Arbitrator gave a cause of action to the plaintiff to file a suit and therefore, the suit filed on 25.06.1991 is within the period of limitation. 18. The Court may also refer to the written statement of the appellant-defendant, where in para-16, it is contended that as many of the claims were not arbitrable in view of the Clause 30 of the Tender Agreement. There was no settlement regarding the claims on merits, but, the claims were sorted out and the parties had agreed with respect to the arbitrability and reference to those claims to the Arbitrator. The claims which did not fall within the ambit of Clause 30, were objected by the defendants for being referred to the Arbitrator. The plaintiffs, theretofore, agreed to the objection raised by the defendants, and had finally agreed to make reference with respect to claim no. The claims which did not fall within the ambit of Clause 30, were objected by the defendants for being referred to the Arbitrator. The plaintiffs, theretofore, agreed to the objection raised by the defendants, and had finally agreed to make reference with respect to claim no. 2 to 11, 13, 14, 15, 17, 19 to 24, and 30 to the Sole Arbitrator, on suggestion on behalf of the defendants, the Civil Judge was pleased to pass an order appointing Shri K.S. Chandrasekhor, as Sole Arbitrator, to arbitrate upon the above mentioned claims, disputes, only and the remaining claims which were ambit of clause 30, not falling within the plaintiffs have their right to get the reliefs by filling a Civil Suit in the Competent Court, and accordingly, the plaintiffs have filed the present suit. 19. Accordingly, no case is made out to interfere. The appeal therefore deserves to be and is hereby dismissed. R & P to be sent back to the concerned trial Court.