1 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT STATE V. BALDEV RAJ S. B. CIVIL FIRST APPEAL NO. NO.62/80 under Section 96, C.P.C., against the Judgment & Decree dated 12.03.1980 passed by Shri G.K.Sharma, District Judge, Sri Ganganagar in Civil Suit No. 8/73 DATE OF JUDGMENT March 31, 2009. PRESENT HON'BLE MR. JUSTICE C. M. TOTLA Mr.L.K.Purohit,Addl.G.A., for State-Appellant (s). Mr. M.S.Panwar for Ms.Rekha Borana, for Respondent (s) BY THE COURT: Appellant is defendant and challenge is to decree of Rs.81065.92 in favour of respondent-plaintiff. The respondent instituted suit on 15.8.73 averring that he was a partner of registered partnership firm M/s. Baldevraj Gurusaran dissolve w.e.f. 1.3.66 assigning all the assets, liabilities, business & property of the firm in his favour vide dissolution deed dated 18.4.66. The firm, on 2 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) acceptance of their tenders for carrying out construction of 'pucca' roads with bituminus carpet from R.D.240 to 265 and 265 to 190 of the Rajashan Main Canal in Rajasthan Canal Project, was allowed the work by the authority and work order issued on 22.3.65 - tenders and work orders accepted by Rajasthan Canal board at its meeting at Jaipur on 21.6.65 and agreements No. 1 and 2 of 65-66 executed between the firm and the State of Rajasthan through the Executive Engineer - work of RD 240 to 265 completed on 30.9.67 and RD 265 to 290 on 15.11.69 and as per final bill for agreement No.1 Rs.582 and for agreement No.2 Rs.39576 remained payable to the firm-and also payable is the 10% security deposit Rs.25,000. Plaintiff, in addition to Rs.40058.00 plus Rs.25000 as above. Claimed that tenders were accepted at rate 22.5 above the scheduled rates and contains the specific condition of additional water allowance on earth work 22.5% higher to tendered premium amount. Further claimed for (a) Jungle clearance of 36 ft. wide strip in the entire road length Rs.412/- plus 22.50% as above of higher tender premium Rs.92.70. (b) Carrying 26640 cft. Chandi grit and 5640 cft. Bikaner Bajri from Birdhwal Railway Station to the site of work – payment made at the rate of Rs.18.30 instead of 24.30% difference 2372.58. For work of agreement No.2, claimed (a) no water made available for excavation of 7,76,603 cft earthwork so at the rate of Rs.02 per cft and extra 22.50 % for this work = 1902.67P. (b) water allowance at the rate of 22.50% of tendered premium for 9000 cft. Earthwork 22.05, (c) 3 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) Transportation of 'pucca' bricks from the kiln was to be on 9.5 miles 'pucca' and 9 miles 'kuchcha' road but due to change in working situation 20,15,000 'pucca' bricks had to be carried at a distance of 10 miles 'kuchcha' plus 9 miles 'pucca' and at the rate of 29.05 % Rs.58535.75P. (d) for 33500 bricks at an average five miles 'kuchcha' and 40 miles 'pucca' at the rate of Rs.28.30% = 9480.50P. (e) carrying 909500 jhama bricks at the rate of Rs.29.05 Rs.26420.98. (f) carrying 3,27,505 Jhama bricks at the rate 28.3 per cent Rs.9268.39P. (2) Chandi grit had to be carried at a longer distance of (i) 26984 cft. From Birdhwal Railway Station to site of work 4 miles 'kuchcha' and 6 miles 'pucca' at the rate of Rs.23.20% = Rs.6269.29 P. (ii) 5996 cft. Bikaner Bajri from Birdhwal Railway Station to site of work at the rate of Rs.23.20P. = 1291.07P. and add. 22.50% higher premium = 25055.32. (iii) Proposed site brick kiln was changed to a further distance resulting in transportation of coal to longer distance-at kiln site so for 23540 'pucca' brick Rs.4230 for 1237005 Jhama bricks Rs.2226.61 with 22.50% higher premium Rs.7909.35P. (iv) For extra item, as per special conditions, for carriage of coal Rs.548.93P. As above, plaintiff claimed total Rs.8907.88 and deducting Rs.3960 as the amount payable from him, plaintiff requested for a decree of Rs.85115.88 – describing service of notice under Section 80 CPC on 14.11.72 also claimed interest at the rate of 12% and costs of the suit. Defendant No.2 the erstwhile partner of the firm obviously admitted 4 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) plaint stating ignorance to the day of dissolution of the firm. Appellants in their written statement averred ignorance of dissolution of partnership firm but admitted acceptance of tender and allotment of work to firm and also acceptance by the Rajasthan Canal Board – disputed all claims made, stating that (1) Jungle clearance not made and no such entry and measurement in record. (2) carries of grits and Bajri involved 4.1/2 miles and accordingly paid for so @ of 18.30. (3) executed earth work was 27146.89 cft. and water allowance paid for 19468.50 and for remaining earth work water was made available. (4) Dressing for the entire earth work 27146.89 cft. is already allowed and paid. (5) as per official record and measurement book, transportation of bricks involved 18.1/2 miles of which 14 'pucca' and 4.1/2 'kuchcha' and accordingly is allowed for two different type of bricks. (6) Actual lead from the change kiln site already allowed for in final bill. (7) Charged for carriage of coal already included in the bill. The defendants averred that recoveries of heavy amount is due to be made from plaintiff which for work No.1 includes penalty for extension of time limit, charges of road roller and sales tax (as described in the schedule annexed) Rs. 41051.05 and for work No.2 Rs. 33722.59. Appellant department submitted that only penalty for extension of time is Rs.52379 and total Rs.137508.24 is recoverable from plaintiff, whereas amount payable is not more than Rs.71106. Also stated that as per clause 25 of the agreement, recourse is to be taken for arbitration by 5 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) Chief Engineer so suit not maintainable. The plaintiff in rejoinder denying assertions of department submitted that only Rs.3960 is payable to department and plaintiff entitled for Rs.85115.83 as narrated. Following issues framed :- “(1) Whether the plaintiff is entitled to sue ? (2) Whether the plaintiff is entitled to Rs.504/70p on account of jungle clearance, as alleged in para 7 (a) of the plaint ? (3) Whether the distance between Birdhwal Station and the site of work was 9-1/2 miles Katcha route and so the plaintiff is entitled to the payment of Rs.2372/58p, as alleged in para 7 (b) of the plaint ? (4) Whether water was made available to the plaintiff for the execution of 7,76, 603 cft. Of Earth-work and so the plaintiff is not entitled to the payment of Rs.1902/67, as alleged in para 8 (a) of the written statement ? (5) Whether the plaintiff executed 9000 cft. Of earth-work in addition to the admitted quantity of 27,14,453 cft. And is entitled to be paid Rs.22/05p on account of the dressing of the same, as alleged in para 8 (b) of the plaint ? (6) Whether the plaintiff is entitled to the payment of Rs.10,757/60p as difference of the cost of carriage of material, as alleged in para 8 © of the plaint ? (7) Whether the plaintiff is entitled to the payment of Rs.7909/35p on account of longer distance of carriage of pucca bricks and jhama bricks, as alleged in para 8 (d) of the plaint ? (8) Whether the plaintiff is entitled to the payment of Rs.548/93p on account of 6 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) tendered premium on extra items of carriage of coal, as alleged in para 8 (e) of the plaint ? (9) Whether the defendant is entitled to the recovery of Rs.137058/24 from plaintiff as per details given in Schedules 'A & 'B' as alleged in paras 9 and 10 of the written statement ? If so, whether it can deduct and adjust the same out of the outstanding dues of the plaintiff ? (10) Whether the agreements No. 1 and 2 of 1965-66 are not in conformity with article 299 of the Constitution of India and if so, what is its effect ? (11) Whether the suit is time bared ? (12) Whether the suit is not maintainable as alleged in para 18 of the written statement ? (13 ) Relief.” Deciding issues No.10 and 12, vide order on 4.1.75. The learned trial Judge (for issue No.10) held that the agreements, not in consonance with article 299 of the Constitution, is void and plaintiff entitled to compensation or restoration under Section 70 of the Contract Act. For Issue No.12, finding is that the objection not filed before the written statement so not maintainable. On behalf of plaintiff, oral evidence is that of Baldevraj PW 2 and clerk of the plaintiff firm Deep Chand PW 1. For defendants, examined are the then AEns Mohan Lal DW 1, Satich Chand DW 4 and N.S.Gehlot DW 5, Sub-Engineers Shri Laxman Singh DW 6 & Kashmiri Lal DW 2 Superintending Engineer Shri R.N.Mathur DW 3. In rebuttal, again is 7 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) evidence is of plaintiff Baldevraj. On behalf of plaintiff, among exhibited documents is Ex.1 dissolution deed of the firm, and Ex.2 letter of department dated 25.9.70. For defendant, exhibited and proved are Exs.A1 and A2, agreement with schedule, copies of various communications, measurement book bills etc. Exs.A-3 to A-23. Learned District Judge minutely analyzing the evidence and related facts decided issues No. 1, 7, 8, 11, 13 in favour of respondent- plaintiff and issues No.2, 4 and 6 partially in favour of plaintiff respectively for 504.17, 1808.96 and 2571.28. Deciding issues No. 9 and 3 against appellant their claim (of Rs.137058.24) dismissed. Learned counsel for the appellant argued that (1) contract even as per respondent is void so no suit can be maintainable and consequently no decree of whatsoever amount can be in favour of respondent. (2) Section 70 of the Contract Act is not applicable. (3) The claim at least for work No.1 not within limitation as work completed in September, 1967. (4) Work whatever done by the plaintiff entered into measurement books bearing signatures of plaintiffs authorized representative so there cannot be any extra work other than those recorded-so no amount can be payable as is held in issues No. 1, 2, 4, 6, 7 and 8. (5) The defendants are entitled to recovery of Rs.95,000/- which is proved by evidence and produced official records and is recoverable after adjusting whatever amount found payable to plaintiff. Learned counsel for the respondents rebutting above arguments 8 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) submitted that (1) even as per final bills prepared by the department, amount Rs.46106 payable. (2) Security deposit Rs.25,000 admitted one. (3) For other extra work and water premium and longer distances, much more expenditure incurred and learned Judge rightly allowed, though less, about Rs.13-14,000/- and also did set off Rs.3960 the amount held payable by the plaintiff. (4) Defendant's alleged claim not tenable. (5) Agreement, even if void, is solely because of lapse of department, and respondent entitled for the cost of benefit that is cost of work performed for the department. Thoughtfully considered rival contentions and perused record. Admitted is the position that tenders of plaintiff were lowest and work order placed to plaintiff in March, 1965-tenders and work orders also accepted in the meeting of Canal Board on 21.6.65 which communicated to department officials on 19.1.66. The agreement Ex.A1 is executed by the Executive Engineer for Main Canal Investigation Division RCP Suratgarh describing that “the above tender is hereby accepted on behalf of the Rajasthan Government in the 41st meeting of the Rajasthan Canal Board held at Jaipur on 21.6.65 (copy of extracts enclosed)”. On the face of it, the agreement is not as per & provided by Article 299 of the Constitution of India so learned Judge rightly held it to be not in conformity with Article 299 of the Constitution of India. Now, coming to effect of contract, learned Judge has held vide order dated 4.1.75 that plaintiff is entitled to compensation or restoration 9 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) of benefit under Section 70 of the Contract Act. Elaborately dealing with the matter held that all the three conditions necessary for application of Section 70 are met and plaintiff-appellant benefited by the work performed by and at cost incurred by respondent. Section 70 of the Contract Act reads like this “where a person lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously, and as such another person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.” Necessary elements for application of section seem to be - (i) lawful act (work executed); (ii) for another person; (iii) not gratuitously; (iv) another person enjoys the benefit (work done for appellant). Here, in this case, (1) work was construction of 'pucca' road with bituminous carpet for Rajasthan Canal Project – there cannot be any dispute that job was lawful – the work order was given by the department and department permitted and allowed the plaintiff to work – meaning thereby the work was needed to be done and obviously, the work done for the department as the department desired it to be done. Tenders were invited and for the rates accepted, the work order was placed – so there is no question of doing work gratuitously. As the department needed and desired to get the work done and the Rajasthan Canal Board in its meeting accepted the tenders and communicated so and work was allowed to be performed & proceeded clearly denotes that the 10 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) department needed and enjoyed the benefits of the work carried out by the plaintiff – so and as such all the elements necessary for application of Section 70 are complete and the department is bound to make compensation. Though the agreement is void, but the work order was placed and work carried out was of roads, the compensation obviously and can only be the cost incurred to be calculated, unless otherwise is proved, on the tendered rates. Extensively dealing with the documents and oral evidence the learned Judge has allowed in addition to bill prepared by the department for following : (1) For issue No.2 – Rs.504.70 for Jungle clearance. (2) For issue No.4 – Rs.1808.96 as the water allowance as against claimed 1902.67. (3) Issue No.6 – for carrying material for extra distance at 'kachcha' and 'pucca'; roads Rs.2571.28 - claimed by plaintiff was Rs. 10757.60. (4) For issue No.7 – for transporting bricks at extra distance Rs.7905.35. (5) Issue No.8 – Rs.548.93 for carries of coal. Expenses claimed as per issues No. 3 and 5 are not held to be payable – a perusal of the judgment discloses that the above expenses are allowed considering oral evidence, entires in measurement book, bills and other documents – the findings are very sound one based on elaborately discussed material. The decree is for Rs. 81065.92 out of which Rs.40058/- is as per final bill prepared by appellant defendant, Rs.25,000/- of security deposit & as above allowed is about Rs.25,000/-. 11 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) The appellant's contention regarding limitation was not pressed in the trial Court. However, the first work was completed on 30.9.67 and second work completed on 15.11.69. Department's various letters exhibited shows that inspection of the work continued at least till November, 1969. Final bill for the first work Ex.A-22 not prepared earlier than December, 1968 and second work, completed on 15.11.69 not earlier than December, 1969. For the first work, claim is only of Rs.482, even otherwise, the suit instituted on 15.1.73 after mandatory notice under Section 80, CPC - thus cannot be said that suit barred by limitation. Now coming to last argument of defendants, regarding their outstanding to be recovered for which issue No.9 is, learned Judge has extensively dealt with this question and the basis for the findings are sound one. Final bill prepared is as per measurements made by department and any deviation to their measurement and details require good reasons and facts - to be established by appellant and their appears no reason to interfere with any findings. Even otherwise without repeating analysis of the learned Judge, it is worthwhile to mention that even as per averments in written statement, as appearing in paragraph 9, the alleged recoveries of the department pertain to “penalty for extension of time limit and charges of road roller and sales tax on coal etc.”. For penalty as the agreement is void, it is highly doubtful and hardly can be said that on the basis of void agreement, any penalty can be claimed – 12 S.B.Civil First Appeal No.62/80 (State v. Baldevraj Behal & Gurusharan) according to the said details annexed with written statement, the sales tax on coal is only Rs.1568.40, without going further into alleged recoveries due, suffice to mention that the final bill is prepared as per measurement books of the department prepared by the departmental personnels themselves-bills as such made by the department is hard to be discarded. Any how, there is no evidence for alleged dues or recoveries stated to be made so the finding on this issue too is correct and requires no interference. For the above reasons, the appeal having no force is dismissed. Costs of the appeal made easy. (C. M. TOTLA), J.