°!'^S?'''?.t''u?l'@^SK'^'fH3^5g!i';ss'.;i'if^i:-'<~.';i'.> •• • •:;. :> .•• HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE h/IR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPLICANT: NON-APPLICANT: Civil Revision No.102 of 2008 M/s Jagatpal Singh Versus Chhattisgarh Tourism Board ORDER FOR CONSIDERATION Sa7- 5-7-ZUTU HON'BLE MR. JUSTICE R.L. JHANWAR R.L. Jhanwar Judge th Post foj^pronojjncement of order on 5"' July, 2010 Sd/- T.P, Sharma Judge F-1- ,..-;-»*•%•- :vt''~V'r-^_c tls3 HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPLICANT: RESPONDENT: Civil Revision No.102 of 2008 M/s Jagatpaf Singh, a registered partnership firm, acting in the premises through its partner Shri Jagatpal Singh, son of Shri Harnarayan Singh aged about 57 years, resident of T/5, Adarsh Nagar, Durg. Versus Chhattisgarh Tourism Board, Through the Managing Director, Chhattisgarh Tourism Corporation, Raipur (CG) (Revision petition under Section 19 ofthe Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983) Present: Mr. B.P. Sharma, counsel forthe applicant. Mr. Vimlesh Bajpai, counsel for the non-applicant. OR D E R (Passed on 5th July, 2010) The fQHowinfl order of the Court was passed bv T.P. Sharma, J: - 1. By this revision, the applicant has challengedlegality & propriety ofthe award dated 27-9-2007 passed by the Chhattisgarh Madhyastham Adhikaran, Raipur (for short 'the Adhikaran') in Reference Petition No.53/2005. 2. The award is impugned on the ground that by not allowing the claim of the applicant, the Adhikaran has failed to exercise the jurisdiction vested on it and committed gross illegality. 3. Facts necessary for the disposal of this revision, as per the claim of the applicant before the Adhikaran, are that parties came into an agreement for construction of restaurant-cum-toilet at Bhoramdev. Work order was jssued to , the applicant, but on account of inability, financial constraint and inter se dispute between the two departments of the State, the non-applicant was not in a position to provide facilities for completion of the contract. Finally the contract came to an end without completion of the contract. The applicant claimed for final bill including the expenses incurred for the purpose of contract on his part but the competent authority has not paid the claim and only part payment was made on which the applicant submitted its claim on 6- 2-95 to the non-applicant's Chief Engineer to initiate proceeding under clause 29 of the contract agreement which was denied and finally the applicant filed reference before the Adhikaran relating to claim for payment of idle wages, infructuous expenditure on technical and supervisory staff, loss of infructuous expenditure on steel trusses, infructuous expenditure on hutments and loss of profit for the left out work including antilite interest of total value Rs.2,47,550/-. The non-applicant has denied the claim of the applicant. After providing opportunity of hearing to the parties, the Adhikaran while allowing the claim of the applicant in part to the tune of Rs.34.930/-, rejected the remaining claim of the applicant. 4. We have heard learned counsel for the parties, perused the impugned award and record ofthe Adhikaran. 5. Learned eounsel for the applicant vehemently argued that the applicant, a registered partnership firm, has entered into an agreement for construction work, the applicant was always ready & willing to perform and complete the construction, and has tried its level best to perform thework assigned to it. Several times the applicant firm started work, but on account of delay, laches, inability, inter se dispute between the two departments of the Government, the non-applicant was not in a position to provide site, money and permission to complete the work. The applicant had written memos and letters regularly to - fhe non-applicant for timely completion of work in terms of the agreement, but ^ue to fault on the part of the non-applicant, the applicant has not completed 1 '?.. 1 lv ^..Jj; the work and finally the contract came to an end. Final bill for incomplete work was presented for payment, but the non-applicant has failed to pay the amount so claimed whereupon the applicant filed claim before the Chief Engineer, same has also been denied on which the applicant has filed reference before the Adhikaran under Section 19 of the Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983. Learned counsel further argued that after considering claim of the parties, the Adhikaran has partly awarded the claim of the parties, but has denied the claim especially relating to loss due to infructuous expenditure on steel trusses for which the applicant has paid Rs.27,000/- to the fabricator at Jabalpur, payment made to technical and supervisory staff to the tune of Rs.10,720/- and loss of anticipated profit to the tune of Rs.1,36,900/-. Learned counsel placed reliance in the matter of Mohd. Salamatullah and others v. Government of Andhra Pradesh in which the Apex Court has held that the applicant is entitled for anticipated profit in terms of Section 73 of the Indian Contract Act, 1872. Learned counsel further placed reliance in the matter of Dwaraka Das v. State of M.P. and another in which the Apex Court has held that when the breach of contract is held to have been proved being contrary to law and terms of the agreement, the erring party is legally bound to compensate the other party to the agreement and in case the contract found to have been improperly rescinded and thereby breach of contract is committed, the Contractor is entitled for loss of profit in terms of Section 73 of the Indian Contract Act, 1872. Learned counsel also placed reliance in the matter of hfl/s A.T. Brij Paul Singh and others v. State of Gujarat in which the Apex Court has held that in case where the Government is committing breach by improperly rescinding the contract, the Contractor is entitled to damages for loss of expected profit on the remaining work. 1 (1977)38cc 590 ,2 (1999)33cc 500 3 (1984)48cc 59 1 4 6. On the other hand, learned counsel for the non-applicant vehemently opposed the revision and submitted that the applicant has failed to prove the aforesaid claims which have been finally denied by the Adhikaran and the Adhikaran has allowed the claim to the tune of Rs.34,930/-. 7. Documentary evidence reveals that work was assigned to the applicant and the applicant was ready & willing to perform the work. The applicant has filed and relied upon letters of correspondence between the parties relating to the contract work, especially relating to day to day problem in carrying out the work. Letters Exs.P-2 to P-57 and Exs.D-1 to D-14 reveal that substantially both the parties have written letters and have answered the letters within reasonable time. The letters reveal that there was some problem relating to site, but that has been finally resolved. Ex.P-7 reveals that the applicant had stopped the construction work for a considerable long time and finally at the instance of the applicant and its letter dated 22-10-93 the construction work was finally closed vide letter Ex.P-8 dated 29-12-93. The applicant has specifically claimed that the applicant was not in a position to perform and complete the work on account of hindrance caused by the non-applicant and its departments. Ex.P-11 reveals that work order has been issued to the applicant and the applicant has received the same on 13-4-91. E:x.P-12C reveals that the applicant was not in a position to transport the material on account of some damar drum placed on the road, but Ex.P-3 filed on behalf of the applicant reveals that the same has not been placed on the road after the agreement and was placed much prior to the agreement & the work contract with a view to save the idol & deity kept in the temple from theft. Ex.P-12C further reveals that either the applicant has entered into agreement without inspecting the site or has tried to delay the work on fishy ground or by hooks or crooks. Entire documents filed on behalf of the applicant, especially Exs.P- ~i 7 & P-8 reveal that construction has been closed at the instance of the SfiB iSSBBBS applicantarid the non-apptic^nt Kas not ereat^ any^c closed the work or rescinded the contract. 8. As held by the Apex Court inthe mattersof nflohd. Salamatullah, Dwaraka Das & M/s A.T. Brij Paul (supra), in case of illegal termination of contract by opposite party, the opposite party is entitled for anticipated profit to the tune of 15% for the remaining work. But in the present case, the applicant has failed to prove that the work was closed or the contract was terminated illegally at the instance of the non-applicant or that the non-applicant is liable for such illegal termination of contract. Inabsence of such proof, the applicant is not entitled for the aforesaid damages and claims which it has claimed. 9. After considering the cases of the parties, the Adhikaran has partly awarded the claim which was necessary in the ends of justice and has rightly dismissed the claim of the applicant for which the applicant is not entitled. While awarding the daim in part and denying the remaining part of claim, the Adhikaran has neither exceeded the jurisdiction vested ?n it nor has failed to exercise the jurisdiction vested on it warranting any interference by invoking the revisional jurisdiction. Consequently, the revision is liable to be dismissed and it is hereby dismissed. Parties shall beartheir costs. lO.Advocate fees as per schedule. — Sd/- T.P.Sharma Judge Soma R.L. Jhauiwar Judge