HONOURABLE SRI JUSTICE P. SWAROOP REDDY APPEAL SUIT No.2163 OF 1992 JUDGMENT: The unsuccessful plaintiff filed this Appeal Suit against the judgment and decree in O.S. No.199 of 1986 passed by the learned Principal Subordinate Judge, Visakhapatnam. 2. Appellant – Sri Venkateswara Electrical Wood Works is plaintiff and respondent – The Board of Trustees, Visakhapatnam Port Trust Visakhapatnam is defendant in the suit before the trial Court. 3. For the sake of convenience, the parties are referred to as arrayed in the suit before the trial Court. 4. Plaintiff’s case is that it is a contractor and on the notification issued by the defendant Board for laying up railway lines of electrical lines work, it submitted a tender and the same was accepted by the defendant. Plaintiff started the work on 18-12-1983. It submitted a sample of ACSR conductor on 08-02-1984 and the defendant disapproved the same. There was difference of opinion between the plaintiff and the defendant regarding ASCR conductor. By letter dated 12-06-1984, plaintiff informed the defendant that size of the conductor is not available and also requested to furnish information regarding address of the firm, where it is available. Thus, for want of ACSR conductor, contract work could not be completed in time. Defendant vide letter dated 29-06-1984 issued a show cause notice to the plaintiff and prior to that defendant furnished address, where ACSR conductor was available. In those circumstances, plaintiff vide letter dated 29-08- 1984 requested the defendant to close the contract and arrange for payment for the work done, for which defendant did not give any reply. Again plaintiff addressed a letter dated 27-09-1985 to the defendant for settlement of the bill. By letter dated 15-10-1985, plaintiff received a communication from the defendant stating that contract of the plaintiff was rescinded by letter dated 11-09-1984. But, plaintiff never received any such communication of rescission of contract. In the letter dated 15-10-1985 of the defendant, it was also mentioned that balance work was entrusted to some other contractor and that only after completion of the same, payment would be made to the plaintiff. Plaintiff issued a reply notice dated 22-10-1985. According to Clause – 3 of the conditions of contract, defendant is bound to measure up the work executed at the time of rescission and before it was entrusted to another contractor. Defendant has not chosen to follow this condition. Plaintiff submitted its bills for the actual work done by it on 24-12-1985, but nothing was paid. Plaintiff got issued a notice to the defendant calling upon it to pay the bill amount, to which defendant sent a reply on 17-05-1986 requesting the plaintiff to call on Executive Engineer (electrical maintenance) on 15-05-1986 at 10-00 am for attending to check measurements in connection with execution of the work. After receipt of the said letter, plaintiff went to the office of the defendant on 17-12-1986, but there was no response. Defendant is deliberately delaying payment. Hence, the suit was filed for recovery of Rs.26,941/- with interest at 18% per annum. 5. Defendant filed written statement denying the allegations in the plaint and further contending that period of completion of work as per the stipulation was 90 days, but plaintiff commenced the work on 18-12-1983 from the date of written orders and it never submitted any samples of material for approval, but requested for extension of time up to February, 1984 vide letter dated 14-01-1984. However, extension was granted up to 29-02-1984. It is a fact that sample of ACSR conduct submitted by the plaintiff was not accepted, as size of the same was not in accordance with the contract agreement. Plaintiff never secured the conductor of appropriate size and has not shown any interest towards execution of the work. As the progress of work was unsatisfactory, the Executive Engineer convened a meeting on 17-04-1984 i.e., after six months. During the meeting, minutes were signed by the plaintiff and assured to complete some items on or before 27-04-1984, but failed to do so. A show cause notice was issued on 29-06-1984, to which plaintiff did not respond. When the contract was rescinded vide letter dated 11-09-1984, plaintiff was informed that work would be got executed at its (plaintiff’s) risk and cost as per condition No.3 of the contract agreement. Measurement of the work done by the plaintiff revealed that it did not execute a single item in full, but submitted a bill for Rs.26,941/- for all the items except for ACSR conductor. Defendant incurred expenditure of Rs.20,967-41 paise in awarding the balance work to another contractor. Value of the work completed by the plaintiff was only Rs.4,500/-. 6. Based on the pleadings, the following issues were framed by the trail Court for trial: “1. Whether the plaintiff performed his part of the contract in execution of the work entrusted to him as per the contract entered by him with the defendant? 2. Whether the plaintiff is entitled to the suit amount and if not to what amount? 3. Whether the plaintiff is entitled to interest? 4. Whether the suit is barred by time u/s.120 of MPT Act? 5. Whether the suit as framed is not maintainable? 6. Whether the defendant is entitled to counter claim and if so, to what amount? 7. To what relief?” 7. To prove its case, plaintiff got examined PW.1 and got marked Exs.A-1 to A-38. On behalf of the defendant, DW.1 was examined and Exs.D-1 to D-23 were marked. 8. Based on the material on record, learned Subordinate judge decreed the suit only for Rs.4,500/-. A counter claim for Rs.20,961/- made by the defendant was rejected. Aggrieved of the refusal of remaining claim of the suit, plaintiff preferred this appeal. However, defendant did not prefer any appeal or cross-objections. 9. Now the point that arises for consideration is whether there are any grounds for allowing this appeal ? 10. The only question that arises for consideration is as to what was the exact quantum of work done by the plaintiff – appellant ? 11. In fact, on account of non-completion of the contract work by the plaintiff, it might not be entitled to any amount, but, with regard to the same, trial Court held in favour of the plaintiff and there is no appeal by the defendant, as such, there is no need to go into that question now. 12. Coming to the question of quantum of work executed by the plaintiff, it is not at all mentioned in the plaint as to what was the quantity of work i.e., value of the work, executed by the plaintiff. 13. PW.1, in his evidence, also never spoke as to what was the value of the work executed by the plaintiff. He spoke only about erection of four polls. It is not even stated as to what is the value of the work of erection of those four polls. 14. Learned counsel for the plaintiff - appellant, in the course of arguments, contends that in fact plaintiff has executed more work and has erected more than eight polls. 15. But, in support of the contention of the learned counsel, there is no material. Neither in the plaint stated about it nor PW.1 has spoken about the same in his evidence. A reading of the evidence of PW.1, the only witness examined on behalf of the plaintiff, shows that there is not even a suggestion by the plaintiff to show that value of the work executed by the plaintiff is more than the value of erection of four polls or that it has erected more than four polls. Thus, there is absolutely no material on record to show as to what was the exact value of the work done by the plaintiff. 16. It is the grievance of the plaintiff that defendant never took care to get the measurement of the work done by the plaintiff. This contention is obviously incorrect as the record reveals that defendant has issued notices to the plaintiff to come for measurement of the work done by it and there was negligence on the part of the plaintiff with regard to the same. 17. Thus, there is absolutely no material on record to show that plaintiff has executed the work worth more than Rs.4,500/-, as such, there are absolutely no grounds to interfere with the findings of the trial court. Hence, the appeal fails and is liable to be dismissed with costs. 18. Accordingly, the Appeal Suit is dismissed with costs. ______________________ P. SWAROOP REDDY, J September 17, 2010. PV