1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT ::: S.B. Civil First Appeal No.57/1988 The State of Rajasthan. vs. M/s. Parnami Construction Company. Date : 20th August, 2010 HON'BLE JUSTICE SHRI PRAKASH TATIA Mr.KR Saharan, for the appellants. - - - - - BY THE COURT : Heard learned counsel for the appellant/ defendant. This appeal is against the impugned judgment and decree dated 17.11.1986 by which the learned trial court decreed the suit of the plaintiff/ respondent for a sum of Rs.27,150/- with interest at the rate of 6% per annum from 20.10.1980. Hence, the State has preferred this regular appeal. Brief facts of the case are that the plaintiff is a registered partnership firm and gave its offer in response to the notice inviting tender of the defendant after which its tender was accepted 2 for lining work of part of Rajasthan Canal. For this work, a work contract no.19/1970-80 was executed. According to the plaintiff, in terms of the contract, it was obligatory for the defendant to supply the necessary water on site but due to shortage of water during the period of execution of the work, there was some delay in completion of work as the work should have been started on 22.3.1979 and it should have been completed by 21.12.1979 and since the defendant failed to supply water in time, therefore, the work was completed by 15.8.1980. According to the plaintiff, in the contract, there was a provision for getting extension of time for which the respondent's concerned officers gave letters to the higher authorities for extension of time. Be it as it may be, the plaintiff completed total work of Rs.2,00,075/- against which the plaintiff has been paid Rs.1,54,163/- and the remaining amount of Rs.30,703/- has not been paid. Therefore, the total plaintiff's amount due in the defendant was Rs.30,703/- for which the plaintiff submitted bill to the defendant which has not been paid by the defendant. The plaintiff also claimed that the plaintiff's security amount of Rs.15,209/- was not paid to the plaintiff. Therefore, the plaintiff's total dues in the defendant at the time of filing of the suit were Rs.45,912/-. The plaintiff claimed 18% per annum interest over that amount. The plaintiff gave a 3 notice under Section 80 CPC to the defendant and then filed the present suit. The defendants submitted written statement and denied the plaintiff's claim of money, however, after admitting the contract between the parties by specifically admitting paras no.1 to 8 in the written statement. The defendants' contention is that time was essence of the contract and work of removal of blown sand was not in the work order not the plaintiff removed the said blown stand. The defendants stated that the amount of Rs.3,541/- against the plaintiff's final bill is lying with the defendants with security amount of Rs.15,209/- totalling to Rs.18,750/- and this amount the defendants are ready to pay. The defendants, therefore, denied that the plaintiff's case of Rs.45,912/- after admitting their liability of Rs.18,750/-. The defendants denied the liability of interest also. The trial court framed the issues and the plaintiff produced PW1 Hansraj as its witness whereas the defendants produced DW1 Bhagwan Das Gupta and DW2 Deep Chand Kothari. The plaintiff and defendants produced their documentary evidence also. The issue no.1 was whether the time was essence of contract or not ? The trial court held that looking to the contents of the contract containing the conditions including the condition for extension of time and looking to the nature of 4 work, time was not essence of the contract. While deciding the issue no.2, the trial court observed that the defendants failed to produce material witnesses who were incharge of the work and there is entry of work done by the plaintiff in the M.B. maintained by the defendants themselves and the defendants' plea that those entries were wrongly made or it was done by forgery was rejected. The trial court decreed the suit of the plaintiff as stated above. I considered the submissions of learned counsel for the parties and perused the record. So far as issue no.1 is concerned, it is clear that it was a work contract of lining in desert area where admittedly as admitted by the defendants' own witnesses, the work could be done with the help of supply of water and because of desert conditions, without removing the sand from nearby area of the working place, the work could not have been completed. Therefore, in such type of work, normally time is not essence of the work. There is a provision in the contract itself for extension of time which also suggests that time was not essence of the contract. In this case, the plaintiff produced evidence that even its case was recommended for extension of time. Therefore also, the trial court was fully justified in holding that time was not essence of the contract. So far as whether the plaintiff is entitled to 5 the money claimed is concerned, more dispute is with respect to work of removal of blown sand. The defendants' witnesses themselves specifically admitted that the canal area is surrounded by the sand dunes and unless those sand dunes would not have been removed periodically, the work of lining could not have been completed. Corresponding entry of removal of sand from nearby area is recorded in the M.B. maintained by the defendants. The defendants failed to prove that those entries were made with connivance of the plaintiff. The defendants also did not produce the engineers in whose time, the plaintiff started and completed the work in question. In these facts and circumstances, the trial court was fully justified in holding that the plaintiff was supposed to remove the sand from nearby area which was essential for completion of the work in question and, therefore, the defendants were liable to pay that amount for that work. The security amount has not been paid to the defendants is also an admitted fact. In view of the above reasons, I do not find any illegality in the impugned judgment and decree. Consequently, this appeal, having no merit, is hereby dismissed. No order as to cost. [PRAKASH TATIA], J. S.Phophaliya