:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE FIRST APPEAL NO.101 OF 1991 FIRST APPEAL NO.101 OF 1991 FIRST APPEAL NO.101 OF 1991 Maharashtra Industrial Development Corporation, Bombay ...Appellant. (Org.Deft.No.1) v. 1. M/s. Shyam Construction, a sole proprietory concern by its Proprietor Shri Shyam Hiranand Vazirani; 2. The State of Maharashtra ...Respondents. (Org.Plff and Deft.no.2) Mrs.Deepa Chavan with Mr.Kiran Gandhi i/by M/s.Little & Co., advs. for the Appellant. Mrs.S.P.Manchekar, AGP for the Respondent No.2/State. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 22nd September, 2008. DATE: 22nd September, 2008. DATE: 22nd September, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The original defendant no.1 Maharashtra Industrial Development Corporation (’M.I.D.C.’ in brief) has preferred this appeal against the decree passed by the learned Joint Civil Judge, Senior Division, Raigad in Special Civil Suit No.15 of 1985 filed by the original plaintiff, who is the respondent no.1 before this Court. 2. To state in brief, the defendant no.1/Appellant had called tenders for the purpose of construction of certain staff quarters and office building. The plaintiff submitted the tender and it was approved in :2: June, 1989. Period of contract was upto June, 1991 and the work was to be completed by the plaintiff by that time. Terms of the contract were reduced to writing. According to the plaintiff, he had completed work within the time and the Executive Engineer of M.I.D.C. had also issued a certificate of completion showing that the work was satisfactorily completed. According to the plaintiff, total value of the work done by him was Rs.15,15,300/-. Certain running bills were passed from time to time. However, when the final bill was prepared and passed by the Executive Engineer of M.I.D.C., he had without any justification reduced certain rates and also reduced the quantity of the work done by the plaintiff. According to the plaintiff, as per the Clause 31 of the contract, decision of the Superintendent Engineer of the concerned circle shall be final and binding on all the parties to the contract upon all questions relating to the meaning of the specifications, designs, drawings, quality of material used for work, etc. As the final bill was not passed to the satisfaction of the plaintiff and as per the work done, the plaintiff addressed number of letters to the Executive Engineer as well as to the Superintending Engineer to settle the matter but they failed to settle the claim of the plaintiff. Therefore, plaintiff issued notice under Section 80 of the Civil Procedure Code and as there was no response, he filed the suit on 22nd February, 1985 for recovery of Rs.2,01,376.68. :3: 3. Claim is divided in three parts, i.e., Schedule A, B and C. Schedule A in the statement showing reduction in the quantity of the work done. This is sub divided in item nos.1,2,3,4, and 5. According to the plaintiff, value of this work is Rs.97,476.79. He contends that the work done by him was already noted in running bills and the concerned work book prepared and signed by the Deputy Engineer. However, later on Executive Engineer reduced the quantity by making overwriting and scratches, which are not even signed by the plaintiff. He was not even given an opportunity to explain that the work was done as per the bills prepared by him. Schedule B is pertaining to the construction of office building and staff quarters and shows the list of items where the rate of work was reduced from the contract price about these items. Total value of such items is Rs.20,570.09. Schedule C shows the statement of work which was in excess of 25% of the agreed quantity of work as per the contract. According to the plaintiff, if the quantity of the work exceeds the agreed quantity of the work by 25%, he would be entitled to get price of work as per the market rate. Admittedly, he was paid for the work shown in Schedule C as per the rates fixed in the contract. However, because he claims that he is entitled to market rate, which was more than contract rate, he has claimed an amount of Rs.83,179.80 towards the difference in :4: contract rate and the market price. He also claims an amount of Rs.150/- towards the notice charges. 4. The suit was contested on behalf of the appellant/defendant no.1. Firstly, it was contended that the suit is barred by the limitation and then on merits also, it is contended that the plaintiff had made excessive claims. It is contended that as far as item 1 in Schedule A is concerned, he has been paid for the actual quantity of the murum used by him for the purpose of filling. His claim was in excess of actual work done. Therefore, that much quantity was reduced. As far as item 2 is concerned, it is contended that the plaintiff had claimed to have supplied 2000 Cu.M. of murum in excess of the contract but no such murum was actually supplied or used by him for the purpose of filling. As far as items 3 and 4 are concerned, he was claiming an amount for the same work twice because according to him, the flooring was required to be dismantled and to be reconstructed. It is contended that original work was not done properly and, therefore, the plaintiff was required to dismantle that work and to complete it as per the terms of the contract, therefore, he could not claim the bill twice for the same work. As far as Item 5 is concerned, it is contended that the rate was properly decided as per the contract in respect of item shown in Schedule B. It is contended that rates were properly reduced as per the terms of the contract. :5: In respect of schedule C, it is contended that there was no contract to pay market rate for any work in excess of the quantity shown in the contract and, therefore, this claim is not justified. 5. The learned trial Court framed several issues and decreed the suit in its entirety rejecting all the contentions raised on behalf of the defendant no.1. Therefore, defendant no.1 has preferred this appeal. 6. Heard the learned counsel for the appellant. None appeared for the respondent no.1, who is the original plaintiff. Perused the oral and documentary evidence placed on record by both the parties. 7. Following points arise for my determination and I record my findings against them for the reasons given below: i. Whether the suit was within limitation ? Yes. ii. Whether the plaintiff proves his claim for Rs.97,476.79 in respect of items in Schedule A ? He has proved his claim in respect of Items 1,3,4 and 5 from Schedule A and he is entitled to Rs.37,476.79. :6: iii. Whether the plaintiff is entitled to claim an amount of Rs.20,570.09 in respect of difference as shown in Schedule B ? Yes. iv. Whether the plaintiff proves that he was entitled to get market rate for the quantity of the work exceeding the quantity mentioned in the contract, by more than 25% ? No. v. What decree and order ? He was entitled to decree for an amount of Rs.57,046.88. 8. Admittedly tenders were floated in June, 1979 and tender of plaintiff was accepted in the same month. Period for completing the work was two years and, therefore, work was to be completed by June, 1981. By March, 1981, 27 running bills were submitted, passed and payments were also made. The Executive Engineer issued completion certificate on 24.3.1982, which indicates that work was completed satisfactorily as per the terms of the contract and thus, there was no grievance about the same. Final bill was passed on 15-5-1982 and according to the plaintiff final bill was not as per the running bills and the work, which was already done by him and approved by the concerned Deputy Engineer. The dispute about the payment arose after the final bill dated 15-5-1982 was passed. There is no dispute that the plaintiff entered into correspondence with the Executive Engineer as well as the Superintending :7: Engineer about his grievance about his bills and finally he issued notice under Section 80 on 24-7-1982. Suit was filed on 22-2-1985. As the final bill was passed on 15-5-1982 and that gave cause of action to the plaintiff, the suit could be filed within three years from that date. As the suit was filed on 22-2-1985, i.e. within three years from that date, the suit is within limitation. 9. Items 1 and 5 and the Items covered in Schedule B may be taken together for the sake of convenience. Admittedly, when the work was in progress, record of the same was being prepared and the work was recorded in a book. Entries were taken in the said work book by the concerned Deputy Engineer, who was in charge of the work. On the basis of work done by the plaintiff and the record in the said work book, 27 running bills were submitted and and those bills were also passed and the payments were made from time to time to the plaintiff. Final bill was expected to be prepared on the basis of the work recorded in the work book and in the running bills. As per the evidence of the plaintiff, the Executive Engineer made the changes in the quantity of the work recorded in the said book without giving opportunity to the plaintiff to explain as to how much work was done. Changes made by him were not even signed by the plaintiff and, therefore, the said changes are not binding on him. On behalf of the defendant no.1, :8: Executive Engineer D.W.Shrikant Parvate was examined. He admitted that the quantity in the work book was corrected by him and the corrected figures were shown in the red. He admitted that the original entries were taken by Deputy Engineer. He deposed that the executive engineer had power to check the work actually done before passing the bill and if the work is not done as shown in work book, he could make necessary corrections. Though this authority of the executive engineer was challenged in his cross-examination on behalf of the plaintiff, in my considered opinion, this authority of the executive engineer could not be disputed. If the executive engineer has no control and he can not make the corrections if he finds that the work is not done as per the contract or if the quantity shown in work book is excessive, he must be competent to correct the same. Of-course, if there is a dispute that can be referred to the Superintending Engineer, whose decision would be final as per the Clause 31 of the contract. Even though the executive engineer had this authority to check and correct the work book, he was expected to be fair to the contractor. Therefore, if he found that certain work was not properly done or the quantity shown in the work book was not correct, he should have called the contractor and in presence of the contractor, measurement of the work could be taken and relevant entries in the work book could be corrected. Presence of the contractor at the time of measurement and :9: correction should have been recorded. His signature should have been obtained, which would go to support the contention of the executive engineer that he had correctly measured the quantity of the work and corrections were correctly made. However, admittedly, in the present case, corrections made by the Executive Engineer do not bear the signature of the contractor or his representative . This provides corroboration to the contention of the plaintiff that the changes in the work book were made behind his back without giving him opportunity to show that the original entries in the work book as well as the running bills were correct. In respect of this, there is no proper explanation from the executive engineer and the defendant. Item 5 of Schedule A pertains to the quantity of work of de-watering. Executive Engineer admitted that the payment was made partly. According to the plaintiff, he had used 5 HP motor for the purpose of de-watering because before filling and construction work could be commenced, it was necessary to remove water from that tank. There is no dispute that it was necessary to take up de-watering work, to make the land available for the purpose of filling and then construction of the building on the same. If contractor would have taken contract for construction of the building for lumpsum amount, he could not claim bill for any specific work. However, it appears that steel and the cement were being supplied by the department and the contractor was entitled to claim :10: bills for the works done by him. In such case, he would be entitled to claim bill for every work, which he had done including de-watering work. This was also reduced by the executive engineer. The comments about the correction in the work book and the rejection of the work would be equally applicable to item 1, 3, 4 and 5 of Schedule B. 10. Items 3 and 4 in Schedule A are about his claiming bill twice for the same work. According to the plaintiff, he had completed work of flooring and other masonry work in the office building but the flooring had sunk and the tiles were broken. It became necessary to dismantle the same, to complete the filling again and to do the same work second time. There is no dispute that the same work was done twice and admittedly, payment was made for single work. Question is whether the plaintiff can claim bill for the same work twice. In the cross-examination executive engineer Parvate admitted that there is difference in load bearing capacity of the residential flooring and industrial flooring. In respect of residential building, murum filling has to be around 12 ft. deep at the basement while for the flooring of the office, it might be 2 ft. to 5 ft. He also admitted that this filling in the residential quarter as well as the office flooring was made without walls. He admitted that 213 M.T.S. of cement bags was supplied to him from the R.C.F. A security guard from :11: R.C.F. was provided. Cement bags were dumped in the office building. He admitted that the slab design of the office building had failed and started leaking and, therefore, cement was required to be shifted from the office building to the residential building. It is the contention of the plaintiff that due to the leaking and heavy weight of cement stock in the office building, its flooring had sunk and that required whole work to be done again, after dismantling the earlier work. Even though the D.W.Parvate did not accept the suggestions but there appears some substance in the same. If strength of the office flooring was not sufficient, the concerned officer should have taken care of the same and heavy quantity of the cement should not have been stacked there. Secondly, the slab design had failed resulting in leaking and, therefore, also this work was required to be done again. If the design was defective, contractor could not be held responsible for the same. Therefore, I find that plaintiff is entitled to claim in respect of Items 3 and 4 from Schedule A. 11. As far as item 2 in Schedule A is concerned, it pertains to supply of 2000 Cu.M. of murum over and above the agreed quantity as per the contract. Plaintiff claims price of the same and total price of this material is shown to be Rs.60,000/- at the rate of Rs.30 per Cu.M. Plaintiff did not produce any documentary evidence in respect of supply of 2000 Cu.M. :12: murum over and above contract quantity. According to him, he had entered into correspondence with the Executive Engineer and Superintending Engineer to which no response was given. In the cross-examination he admitted that except correspondence, there was no other material to support him claim. According to him, 2000 Cu.M. murum was used by him for the purpose of filling work in the year 1981. To support his claim, he relied upon the notice issued by the Collector in respect of excavation of murum and price of murum showing that the plaintiff had used the murum to the extent of 2120 brass. The said notice was replied on 1-10-1980. In that reply, the quantity of murum was shown to be 14.11.79 brass. It only shows that the said quantity of the murum was excavated by the plaintiff from the quarry for the purpose of this work in 1980. That murum was not used in the year 1981. According to him, excess work was done after 1st January, 1981. There is no material that he had excavated and used 2000 Cu.M. of murum after 1st January, 1981. The murum, which was excavated by him prior to the notice from Collector, must have been used during the year 1980. The learned trial Court did not properly consider this aspect of the matter and wrongly accepted the claim of the plaintiff in respect of 2000 Cu.M. of murum. In my considered opinion, in view of the admission that except the word of the plaintiff and his correspondence, there is no evidence to support his claim, the claim to that extent :13: should have been rejected. 12. As far as the claim in respect of Schedule C is concerned, there is no dispute that the excess work was done and for the same, plaintiff was also paid as per the rates fixed in the contract. Plaintiff claims that whenever the work exceeded the agreed quantity of the work shown in the contract by more than 25%, he would be entitled to claim price of the work as per the market rate. Schedule C is the difference of the price paid by the department as per the terms of the contract and the market rate claimed by the plaintiff. As there was written contract between the parties, parties would governed by the terms of the contract. In the cross-examination, plaintiff deposed that he can not say whether there is any condition of increase in the price in case the work exceeded by 25%. He also admitted that he could not definitely say whether the market rate quoted in column 9 Schedule C was actually incurred by him. According to him, he had bills but they were not produced. According to D.W. Shrikant Parvate, Executive Engineer, there was no such agreement to pay the market rate for the excess work. According to him, parties are governed by Clause 41 of the Contract, which reads as follows " Quantities shown in the tender are approximate and no claim shall be entertained for quantities :14: of work executed being either more or less than those in the tender or estimate." From this Clause, it is clear that the contractor would be entitled to claim contract rate for any quantity of the work done by him whether that quantity is less or more than the quantity entered in the contract. There is nothing to show that if the quantity of work exceeds 25% or more than agreed quantity, he would be entitled to market rate. Executive Engineer Mr.Parvate admitted in cross-examination that the Government had introduced clause in the terms of the contract for payment of excess price in respect of extra work, however, that condition was introduced recently. Evidence of this witness was recorded in December, 1989. The work of this contract was completed June, 1981. Plaintiff could not produce any document to support his claim that for excess work beyond 25%, he was entitled to market rate. The trial Court has not considered the evidence of the plaintiff and the executive engineer Mr.Parvate as well as the terms in Clause 41 of the contract before allowing the claim shown in schedule C. Taking into consideration the evidence on record, the claim for Schedule C could not be accepted. 13. In view of the finding that plaintiff is not entitled to claim Rs.60,000/- towards the alleged supply of 2000 Cu.M. of murum, which he could not prove, that :15: amount should have to be reduced from the claim shown in Schedule A. After the reduction of that claim, plaintiff is entitled to receive amount of Rs.37,476.79 being the price of items 1,3,4 and 5. He is also entitled to claim Rs.20,570.09 for the work shown in Schedule B. He is not entitled to claim anything towards the difference of the price shown in Schedule C. Therefore, he is entitled to decree for recovery of an amount of Rs.57,046.88. The learned trial Court committed error in passing the decree as per the entire claim in its entirety. Therefore, the appeal deserves to be allowed. As the claim made by the plaintiff was excessive, he will not be entitled to get cost of notice. 14. In view of the above, appeal is partly allowed and the judgment passed by the trial Court is hereby set aside. However, the defendant no.1 shall be liable to pay an amount of Rs.57,046.88 with interest at the rate of 12% p.a. from the date of suit till the realisation of the amount. 15. Parties shall bear their own costs throughout. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)