abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1518 OF 1996 R.S. Patel and Company .. Appellant V/s 1. State of Maharashtra 2. Maharashtra Water Supply and Sewerage Board represented by Member Secretary C.I.D.C.O. 3. The Chief Engineer (Urban) Maharashtra Water Supply and Sewerage Board 4. The Superintending Engineer Environmental Engineering Circle 5. The Executive Engineer Environmental Engineering Works Dn. No.1 6. Maharashtra Water Supply and Sewerage Board by its Secretary 7. Secretary Urban Development Department, Maharashtra State, Mantralaya, Bombay. .. Respondents Mr.S.M. Kamble i/b Mr.A.P. Mundargi for the appellant. Mrs.G.P. Mulekar, A.G.P. for respondents nos.1 and 7. Mrs.Neeta Karnik for respondent no.2. - 2 - CORAM : B.H. MARLAPALLE & D.G. KARNIK, JJ. DATE : 17TH MARCH 2009 ORAL JUDGMENT: (Per B.H. Marlapalle, J.) 1. This appeal filed under Section 96 of the Code of Civil Procedure arises from the judgment and order dated 2nd September 1996 rendered by the learned Joint Civil Judge, Senior Division, Kolhapur thereby dismissing Special Civil Suit No.177 of 1989 filed by the present appellant-plaintiff for recovery of Rs.23,98,000/-. 2. The plaintiff is a partnership firm with three partners, i.e. Shri R.S. Patel, Shri Anand Bapat (P.W.1) and Bhagwat. The underground sewerage work of Ichalkaranji town was entrusted to the plaintiff firm in the year 1984. Defendant no.2 is the Board established under the Maharashtra Water Supply and Sewerage Board Act, 1976 subsequently replaced by the Maharashtra Jeevan Authority Act, 1976 and defendant nos.3 to 5 are the officers of the said Board. The tender was signed by the plaintiff (Exhibit 83) to undertake the said work on or about 19th March 1984 for an estimated cost of Rs.35,14,670/-. The work included boring, laying and jointing, etc. R.C.C. pipes for outfall sewer Zone-A. - 3 - The plaintiff started the excavation of Item No.2 in Schedule-B of the Tender and noticed that the strata to be excavated was very hard like a sheet rock and it was impossible to carry out the work of excavation by chiselling and manual labour. It therefore made a representation to undertake the excavation by pneumatic drilling and as per the plaintiff, the Deputy Engineer recommended the said proposal and similar action was also taken by the Superintending Engineer. In the meanwhile, the plaintiff proceeded to undertake the excavation by pneumatic drilling and submitted its bills. However, the bills were turned down because they were on the higher side and the plaintiff was allegedly informed by the Board that the Member Secretary of the Board turned down the proposal to undertake the excavation work by pneumatic drilling rather than chiselling. This was informed to the plaintiff by the Executive Engineer by his letters dated 7th February 1986 and 26th May 1986. It appears that the plaintiff firm stopped the work and consequently the Superintending Engineer imposed fine under Clause 2 and subsequently intimated that under Clause "C" of the Tender, the contract stood terminated. The bank guarantee furnished by the plaintiff was also encashed. The incomplete work was assigned to some other contractor by following the normal method. It is under these circumstances, the plaintiff firm filed the - 4 - Special Civil Suit for recovery on the ground that it had executed the work of Rs.26 lacs thereby leaving the balance of Rs.3 lacs, in addition to the value of the work which remained unexecuted and withdrawn worth Rs.13 lacs. The plaintiff therefore made the following claims:- (A) Work done by pneumatic method .. Rs.13,86,000 (B) Profit on work withdrawn .. Rs. 1,38,000 (C) Refund of forfeited and adjusted amount .. Rs. 1,20,000 (D) Balance of payment of RCC pipes .. Rs. 2,00,000 (E) Damages on account of termination of contract .. Rs. 1,38,000 (F) Charges for pneumatic drilling .. Rs. 1,86,000 (G) Interest .. Rs. 2,30,000 ------------ TOTAL .. Rs.23,98,000 ============ The suit was filed on the basis that the cause of action arose on 22nd February 1988. 3. Defendants nos.2 to 6 opposed the suit by filing written statement at Exhibit-23. Defendants nos.1 and 7 did not file any written statement. On behalf of the plaintiff, four witnesses were examined, i.e. Anand Bapat (P.W.1), Sudhakar Ranade (P.W.2). Rajaram Supekar (P.W.3), and Vasant Kabnurkar (P.W.4). On behalf of the - 5 - defendants, Vallabh Shah (D.W.1) and Bhaskar Rotkar (D.W.2) were the two witnesses examined. Vallabh Shah was the Engineer and Contractor who was examined as an expert witness and who had undertaken the survey of the suit work, whereas Bhaskar Rotkar was the Member Secretary of the Board. He also was a qualified Civil Engineer with Master’s Degree in Engineering in Public Health, Post Graduate Diploma in Sanitary Engineering from Netherlands and possessed valid experience in water supply and sewerage management. The Trial Court, taking into consideration the pleadings of the parties, framed the following issues and answered them as noted against each issue. 1. Does Plaintiff prove that No. because of the impossibility to work on item No.2 for excavation work the contract was frustrated? 2. Does Plaintiff prove that the Yes. excavation work was only possible with pneumatic method? 3. Does the Plaintiff prove that Yes. his claim was arbitrarily rejected without enquiring and without giving any reasons? 4. Does the Plaintiff prove that No. the termination of contract by the department was arbitrary, unlawful, illegal and unjust? 5. Does Plaintiff prove that the No. encashment of the bank guarantees and imposition of fine were acts actuated by malice and vengeance? - 6 - 6. Does Plaintiff prove that the No. Defendants are entitled to reimburse the Plaintiff to the tune of Rs.23,98,000 as alleged in para 22 of the plaint? 7. Does Plaintiff prove that the No. contract in respect of item No.2 became void and as such Plaintiff cannot be penalised? 8. Do Defendants prove that the Yes. Plaintiff is entitled to claim only Rs.1,73,600 plus Rs.13,512? 9. Whether the Plaintiff is No. entitled for declaration? 10. Whether the Plaintiff is No. entitled to recover Rs.23,98,000? 11. Whether the Plaintiff is Does not entitled to recover the survive. interest? If yes, at what rate? 12. What decree and order? As per final order below. 4. It is pertinent to note that Issue Nos.1, 4, 5, 6 and 7 were the foundation of the claim and they came to be answered against the plaintiff. The Trial Court held that the plaintiff failed to prove regarding frustration of the contract on account of impossibility to work on Item No.2 for excavation. The plaintiff also failed to prove that the termination of the contract by the department was arbitrary, unlawful, illegal and unjust. The Trial Court further held that the defendants were justified in penalising the plaintiff in - 7 - respect of Item No.2 and the contract did not become void. The Trial Court, however, held that the defendants had admitted that the plaintiff was entitled to only Rs.1,73,000/- plus Rs.13,512/-. 5. Like the Trial Court, we have also gone through the terms of the Tender at Exhibit-87 signed between the parties as well as the depositions of all the six witnesses. The Trial Court, in our opinion, was justified in holding that the doctrine of frustration of contract was not applicable in the instant case and on the contrary, it was the plaintiff firm which made claims contrary to the terms of the contract and abandoned the work on the ground that bills submitted for pneumatic drilling were not released. The entire dispute between the parties revolves around Item No.2 of the Contract which reads as under:- "Item No.2:- Excavation in hard strata which shall include boulders above 0.1 M3 in size, soft & hard rock, including stone masonry, concrete, slabs in wet or dry conditions, by chiselling, including removing excavated stuff within a distance of 50 M. beyond the work site, stacking spreading as directed, barricading, guarding, lighting during nights etc. complete to required grade & level - 8 - for lifts as mentioned below." 6. It was the claim of the plaintiff firm that the excavation, as stated in Item No.2, was not possible by chiselling and, therefore, on its approach to the officers of the Board like the Deputy Engineer and the Superintending Engineer etc., it was agreed that drilling should be by pneumatic rather than by chiselling and, therefore, the plaintiff proceeded to undertake the excavation by pneumatic drilling. It submitted the bills for the same which were on the higher side and ultimately the bills were turned down which resulted a loss to the plaintiff and, therefore, it stopped the work. The notice of termination of Contract was not challenged and it claimed that Item No.2 be declared as inoperative. 7. On assessment of the entire evidence on record, we have noticed that there was no evidence that the bills submitted by the plaintiff were for excavation by pneumatic drilling. At the same time, Item No.2 did not leave any doubt regarding the method of excavation and it was very specifically stated to be by chiselling. At the same time, the strata was clearly indicated as soft and hard rock. In any case, if the plaintiff was satisfied that the excavation was required to be undertaken by pneumatic drilling rather than chiselling - 9 - and if the cost for pneumatic drilling was higher, the bills submitted did not indicate that the excavation was done by pneumatic drilling. The proposals allegedly submitted by the plaintiff could not be the foundation for its claim for the higher amounts under Item No.2. P.W.3 - Rajaram Supekar, who was the Deputy Chief Accounts Officer at the relevant time, in his examination-in-chief stated before the Trial Court that the Member Secretary turned down the claim for pneumatic drilling by recording his opinion that excavation by chiselling was the costliest and, therefore, the claim made by the plaintiff could not be considered. We have also noted that time was not the essence of the Contract and it was at no time the pressure of the Board to complete Item No.2 within a specific period. D.W.2, who was the Member Secretary at the relevant time, did not agree with the opinion of the Geologist, i.e. P.W.2 - Sudhakar Ranade and it is well-known that drilling by mechanical or pneumatic method would be cheaper than drilling by chiselling or any other means. The Trial Court has considered the terms of the Tender and more particularly Item Nos.2 and 4 as well as the letters at Exhibits 117, 118 and 119 and held that the plaintiff could not take advantage of its own wrongs. The Trial Court was justified in recording the finding that the plaintiff had unilaterally and unjustifiably refused to perform its part of the obligation and the defendants - 10 - were justified in imposing the penalty regarding the breach of contract. No interference is called for in the said findings as they cannot be termed as erroneous or vitiated on any count. We reiterate that the plaintiff raised the totally unjustified, illegal and unfounded claim to withdraw from the contract and refused to perform its part of the obligation for no legal or justifiable reasons. 8. In the premises, the appeal fails and the same is hereby dismissed without any order as to costs. (D.G. KARNIK, J.) (B.H. MARLAPALLE, J.)