{1} fa55294.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. FIRST APPEAL NO.552 OF 1994 1 The State of Maharashtra, through the Collector, Jalgoan, District Jalgaon. 2 The Secretary, Irrigation Department, Mantralaya, Bombay-32. 3 The Executive Engineer, Minor Irrigation Division, Jalgaon. Appellants Versus M/s Abhiman Warke & Company, having its registered office near Nerinaka, Jalgaon, through its partner Shri Madhukar Abhiman Warke, age: 45 years, Occ: Contractor, R/o Jalgaon. Respondents Mr.P.P.More, Assistant Government Pleader, for the appellants. Mr.Sanket S. Kulkarni, advocate holding for Mr.V.T.Choudhari, advocate for the respondent. CORAM : R.M.BORDE, J. DATE : 30th August, 2011 JUDGMENT: 1 This is an appeal preferred by the State taking exception to the judgment and decree passed by the Civil Judge, Senior Division, Jalgaon in Special Civil Suit No.116/1986 decided on 30.04.1994. {2} fa55294.odt 2 Plaintiff M/s Abhiman Warke & Company is a registered firm having its Head Office at Jalgaon. The plaintiff deals with execution of construction contracts relating to construction of tanks and other irrigation projects. Defendant no.1, through its Executive Engineer, Minor Irrigation Division, had invited tenders for construction of M.I. Tank at Hiveakheda, Tq.Jamner, District Jalgaon. The said work included earth dam, waste weir to well, guide bund, head regulator and approach channel. The tender notice was published on 27.09.1977. The estimated cost of the work was Rs.7,74,484/- and earnest deposit was to the tune of Rs.7785/-. The security deposit was to the tune of Rs. 31,139.00. The last date for submission of tenders was prescribed as 19.11.1977. The period of completion of the work was 24 calendar months. The plaintiff firm submitted its tender with necessary details and estimated cost. The tender submitted by the plaintiff, being below estimated cost at 13.7%, was accepted by the defendants. The agreement was accordingly signed and the plaintiff was given work order on 30.12.1977 and commencement of work was since 04.01.1978. 3 As per the original plan and design, the height of the tank, was of varying meters in accordance with the technical suitability of the tank. The water storage capacity was stated to be 70 million cubic feet. The plaintiff accepted the work order below 13.7% estimated cost considering the design, plans and maps supplied by the defendants. The defendants, however, changed scope of the work during the period of execution. The original height of the tank, which was shown as per the plan attached to the agreement, was increased by 2.5 meters, whereas, storage capacity was doubled from 70 million cubic feet to 142 million cubic feet. On account of change in the plan and design, the plaintiff {3} fa55294.odt had to execute extra work and the quantities also increased beyond 25% which entitled the plaintiff to claim revision in the tender rates. Due to change in the storage capacity of the tank, the quantity of earthwork also increased to the extent of 100%. 4 The plaintiff, therefore, approached the Chief Engineer and apprised him of the excess quantities and increase in the contract work which was obviously beyond 25% of the contract work. It was assured by the Chief Engineer to the plaintiff that as the quantities increased beyond 25% of the estimated work, the case of the plaintiff in respect of revision of rates would be recommended to the State Government for payment at current DSR rates. The plaintiff continued to execute the work relying upon the assurance given by the concerned authority. The plaintiff was assured as regards payment of increased lead at DSR rates available since July 1982. The original work was required to be done below 13.7% of the estimated rates, however, there was material change in the contract work and the increase in extra items was beyond 25% and as such deduction at 13.7% was obviously not permissible in respect of extra item works. The final bill amounting to Rs.20,79,700/- was prepared on 16.06.1984. The final bill was paid to the plaintiff on making deduction at 13.7% which was in fact applicable for original contract work. The plaintiff received an amount of Rs.17,94,781.75 towards final bill. The plaintiff has, thus, staked his entitlement to the amount of Rs.1,78,266.70 deducted by the defendant @ 13.7% out of the extra work done by him amounting to Rs.13,01,216.75. The plaintiff has also raised certain other claims in respect of extra work and also prayed for interest @ 18% p.a. on the amount receivable by him to the tune of Rs {4} fa55294.odt 1,78,266.70. 5 The defendants appeared and resisted the suit by filing written statement. The contentions raised by the plaintiff in the plaint were denied in its totality. It is the contention of the defendants that the plaintiff is obliged to carry out the extra work as the tender agreement itself contains clause binding the plaintiff to carry out extra work on account of change in design. According to the defendants, there was very minor change in the design and the plaintiff was not required to carry out extra work beyond 25% . It is also contended by the defendants that though height of the tank was increased, there was neither change in the design nor change in the nature of the work. The defendants have made payment from time to time to the plaintiff in respect of increased work done by the plaintiff. The plaintiff is, thus, not entitled to claim rates as per DSR rates nor is entitled to claim the amount without effecting deductions as agreed by him to the extent of 13.7%. 6 The trial Judge, on considering the evidence led by both the parties, held that defendants were not justified in effecting deduction at 13.7% out of the extra item work for which the plaintiff was paid by the defendants. The suit presented by the plaintiff was, thus, decreed for Rs. 1,78,266.70 and the plaintiff was also held entitled to receive interest of Rs.54,818/- @ 18% p.a. 7 I have perused the judgment and decree passed by the trial Court and heard arguments advanced by learned Counsel for respective parties. On going through the evidence led by the parties, it is abundantly clear that there was material change in the work. It is {5} fa55294.odt admitted by the defendants that there was increase in the height of the tank by 2.5 meters and storage capacity of the tank was also doubled to the tune of 142 million cubic feet. On account of change in design, the plaintiff was required to execute extra work and carry out extra quantities beyond 25%. The plaintiff was paid for execution of the extra quantities to the tune of more than Rs.13 lacs. The plaintiff is justified in contending that the acceptance of the tender by him, as per the terms stated in the agreement, below 13.7% of the estimated cost, would apply only so far as the original work is concerned. The deduction to the tune of 13.7% would obviously not apply for extra work of the quantities which the plaintiff was required to carry out beyond 25% of the estimated work. It is proved by the plaintiff by leading evidence and it is also borne out from the record that the plaintiff was required to carry out the work beyond 25% of the estimated quantities. 8 Reliance is placed by the defendants on clause 38 of the contract, which reads thus: Clause 38 of B-1:- 1) Quantities in respect of the several items shown in the tender are approximate and no revision in the tendered rate shall be permitted in respect of any of the items so long as, subject to any special provision contained in the specifications prescribing a different percentage of permissible variation, the quantity of the item does not exceed the tendered quantity by more than 25% and so long as the value of the excess quantity beyond this limit, at the rate of the item specified in the tender, is not more than Rs.5000/-. 2) The contractor shall if ordered in writing by the Engineer, so to do, carry out any {6} fa55294.odt quantities in the excess of the limit maintained above in this clause, on the same conditions as and in accordance with the specifications in the tender and at the rate derived from the rates entered in the current schedule of rates and in absence of such rates, at the rate as prevailing in the market, which may be increased or decreased as the case may be by the percentage which the total tendered amount bears to estimated cost of the total work as put to tender. 3) Claims arising out of reduction in the tendered quantity of any item beyond 25 percentage will be governed by the provisions of clause 15 only when the amount of such reduction beyond 25 percent at the rate of the item specified in the tender is more than Rs.5000/-. It is argued that in view of clause 38 of the contract agreement, the plaintiff is not entitled to raise his claim in respect of making payment to him as per DSR rates. 9 It is proved by the plaintiff that he was required to execute quantities more than 25% of the original work, which obviously values more than Rs.5000/-. In this view of the matter, clause 38, on which reliance is placed by the defendants, does not apply. The defendants have placed reliance on clauses 14 and 15 of the contract agreement. Clause 14 provides that if additional or altered work includes any class of work for which no rate is specified in this contract, then such class of work shall be carried out at the rates entered in the Schedule of Rates of the Division. The trial Court has observed that in the instant case, clause 14 cannot be made applicable because complexion of the contract {7} fa55294.odt work has undergone complete change. Clause 15 of the contract agreement provides for suspension of the contract, which obviously is not attracted to the facts of the case. The trial Judge was, therefore, justified in holding that clauses 14, 15 and 38, relied upon by the defendants, have hardly any application to the facts of the case. 10 It is more than clear on perusal of the evidence that the plaintiff was required to carry out quantities beyond 25% and as per the final bill paid to the plaintiff, the amount to the tune of more than Rs.13 lacs has been paid towards extra quantities executed by the plaintiff. The defendants are not justified in making deductions at 13.7% in respect of the extra quantities or extra work, which the plaintiff was required to execute due to change in original plan and design. The trial Judge has adopted a correct approach and has passed the decree in respect of recovery of amount of Rs.1,78,266.70 in favour of the plaintiff. The interest awarded to the plaintiff @ 18% p.a. is as per the prevailing rates of interest at which the Banks used to lend advance. No interference is, therefore, called for in the judgment and decree passed by the trial Court. The appeal preferred by the State is devoid of substance. 11 In the result, appeal stands dismissed. No order as to costs. R.M.BORDE JUDGE adb/fa55294