THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.973 OF 2001 JUDGMENT: The plaintiff in O.S.No.6 of 1996 on the file of the Subordinate Judge, Proddatur, is the appellant herein. 2. The suit was filed for recovery of a sum of Rs.9,78,597/-. The plaintiff was entrusted with the work of providing flood protection arrangements for diverting Madur Channel at Kothapeta village into Penna river in Proddatur village and Town of Kadapa District. The value of the work was Rs.26,61,977/- and an agreement was entered on 23.05.1992. The period of completion of work is one year and the cement and steel are to be supplied by the defendants. The site was handed over on 10.07.1992 and the work has to be completed by 09.07.1993. The plaintiff has engaged the required labourers and vehicles and proceeded with the execution of the work. According to the case of the plaintiff by August, 1992, he completed earth work to an extent of 15,000/- cubic metres and part bill was prepared Rs.4,90,000/- and it was not paid. The defendants have not taken action in time. Required cement was not supplied and huge amounts were paid for the labourers, who received advance amounts and they left as the cement was not supplied within time. Periodical delays were caused by the defendants. The plaintiff made several representations. Thereafter, 10 tons of cement was supplied on 17.08.1993 and 10 tons of cement was supplied on 25.08.1993 and work could not be done as it was rainee season. Thereafter, on 06.10.1993 a sum of Rs.5,50,000/- was paid as first and part bill. The plaintiff wanted for extension of the time by letter dated 20.02.1994, and the Assistant Engineer took signature of the plaintiff in a form, which, the plaintiff came to know, was waiver of higher rates. The plaintiff did part of the work and a second part bill was claimed for Rs.2,82,936/- and it was paid on 31.03.1994 after delay. The plaintiff was asked to complete the work by 31.07.1994 by defendants 2 and 3. The plaintiff has completed the entire balance of work, and the 3rd part bill was paid on 06.10.1994 after long delay. There were laches on the part of the defendants in supply of the required cement and steel and the construction of the culverts could not be proceeded. The plaintiff informed these facts in his representation dated 23.10.1994. The defendants also requested to pay enhanced rates during the extended period for the work done by him. The plaintiff in his further representation claiming amount due to him and of legal notice was also given. The defendants have committed breach of contract and caused loss. Claims of the plaintiff are as follows: A. Payment of amounts and loss of advances paid to labour Rs.30,000/- and loss of wages paid to labour during their stay at work spot Rs.40,000/-. B. Payment of amounts withheld while making payment of part Bills Rs.1,12,395/-. C. Payment of the amounts less paid in part Bills by paying at lesser rates as against agreed rates Rs.82,371/-. D. Payment for the quantity deducted from work done in the M Books while making payment of Bills Rs.1,00,509/-. E. Payment of the cost of materials collected and stacked at the work spot Rs.50,761/-. F. Compensation for the damage resulted in the shape of loss of interest on amount of part bills on account of delay made in payments of part-bills. G. Quashing of forfeiture of amount as penalty (fine) and refund of the same to plaintiff Rs.500/-. H. Payment for the work done but measurements not recorded Rs.20,327/-. I. Payment for the part of work executed after expiry of period stipulated in agreement, at the rates prevailing at the time of actual execution of it, and thereby the difference amount on the payments already made Rs.2,69,800/-. J. Payment of compensation towards loss of 15% profit on the balance of work Rs.1,36,411/-. K. Refund of Earnest Money and Security Deposits Rs.66,550/-. Therefore, the plaintiff instituted the suit for recovery of the amounts claimed. 3. The 3rd plaintiff filed a written statement, which was adopted by the other defendants. The defendants admitted the agreement but denied the laches attributed to the defendants. The plaintiff is not entitled for the enhanced rates of the material or work or interest on any delay payment as per the clause No.59 of A.P.D.S.S. The claims preferred by the plaintiff are beyond time. At no point of time, the defendants were denied the supply of the steel or cement. The defendants have every right to impose the penalties. There is no breach of contract committed by the defendants. The amounts due to the plaintiff were paid and he failed to perform the work. The various claims in the suit were disputed and they are against the contract. The plaintiff failed to take delivery of the cement inspite of repeated demands. The plaintiff was not interested in completing the work and the plaintiff violated the conditions of the agreement and therefore, the suit is liable to be dismissed. 4. On the basis of the above pleadings, the following issues have been framed for trial: 1) Whether the plaintiff is entitled for the suit amount as prayed for from the defendants? 2) Whether there is any short-fall in the progress of work by the plaintiff? 3) Whether the plaintiff is not entitled for compensation for the delay in execution of work under Clause-59 of P.S. to A.P.D.S.S.? 4) Whether penalty can be imposed as per the agreement for the delay in execution of work and not keeping the progress of work by plaintiff? 5) Whether the plaintiff is not entitled to claim interest on any delayed payments under Clause-69 of P.S. to A.P.D.S.S.? 6) Whether the plaintiff is not entitled for any relief, as the claims preferred are beyond the specific period? 7) Whether the suit is not maintainable as the plaintiff violated the conditions of the agreement? 8) To what relief? 5. On behalf of the plaintiff, PWs.1 to 4 were examined and marked Exs.A.1 to A.14 and Exs.X.1 and X.2. On behalf of the defendants, DWs.1 to 3 were examined and marked Exs.B.1 to B.29. After considering the evidence on record, the learned Senior Civil Judge, dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed. 6. The points that arise for consideration are: 1) Whether the defendants have committed the breach of contract? 2) Whether the plaintiff is entitled for recovery of several amounts under different heads as pleaded in the plaint? 3) Whether the Judgment and decree passed by the learned Senior Civil Judge, Proddatur, is legal and sustainable? 7. POINTS: There is no dispute about the fact that the work was entrusted to the appellant in excess of 24.90% of the estimated value. The time was originally fixed for one year and the site was handed over to the plaintiff on 10.07.1992. It is also not in dispute that the plaintiff has only completed part of the work, which is 63.5% and the value of work is Rs.16,89,002/-. It is also not in dispute that three bills were paid to the plaintiff and as the plaintiff could not complete the work time was granted for extension. The basis of the claim of the plaintiff under several heads is for the delays, which were attributed to the defendants and also for incurring of his expenditure and the deduction of some amounts. 8. So far the cost incurred in excess is concerned, evidently there is no agreement between the parties, so also for the delayed payments if any the interest is as payable as per clause P.S.69 of APDSS. It is also not in dispute that as per clause 10 of Schedule D of the agreement, the dispute should be promptly reported to the Executive Engineer within 15 days and thereafter, the claims also cannot be made. 9. It is also not in dispute as per the agreement, there is a right for the defendants to levy the penalty. In fact, the supply of the cement and steel according to the defendants is as per the availability, but sometime even when it is available, it was not lifted by the plaintiff. 10. The defendants have also produced several letters to show about the availability of the cement. But, the plaintiff did not act properly and he did not receive the stock and has left the work. The letters are admitted by the plaintiff and he claims to have given the replies Exs.B.8 to B.13. According to the defendants, the claims are beyond time and they are to be rejected. Evidently, there is a lot of correspondence between the plaintiff and the defendants and the defendants were accommodative in extending the time and from the evidence on record, no serious laches could be attributed to the defendants in not co-operating for the completion of the work. 11. The learned Senior Civil Judge has dealt with the claims of the plaintiff item wise: According to the plaintiff, the claim under A-Schedule is said to be the loss suffered by him towards payment of advances to the labourers anticipating that the work will be in progress. Evidently, the plaintiff has employed his own labourers and whatever payment he makes to the labourers it is a matter between him and the labourers, and if the labourers are allowed to wait without any work as rightly contended by the defendants, it is only because of the lack of planning. The lower Court also did not consider the claim of the plaintiff with regard to the payment of the advance to PWs.3 and 4 and Exs.X.1 and X.2 as true since they were not pleaded earlier. Even in the plaint it was not pleaded for what period the advances were paid and what was the total extent of the expenditure incurred from these labourers and the period for which they were kept idle. Therefore, the lower Court has rightly rejected this claim. So far as the claim under B-Schedule is concerned, evidently as per the agreement whenever the part payments were made the department has got a right to deduct 7 ½ per cent of the bill only for the purpose of a security for performance of the contract as such, and that amount will be paid at the time of final bill. Therefore, in view of the above circumstances, B-Schedule claim cannot also be accepted. So far as the claim under C-Schedule is concerned, it is with regard to a claim for differential rates for different items. According to him, a sum of Rs.82,371/- was paid less even after the observation period of six months as against the agreed rates for the work. The lower Court considered this aspect and found that as per the contention of the defendants if full rates are allowed there is every possibility that the plaintiff will execute the work for which higher value is quoted and therefore till the completion of the contract the amounts are withheld. The fact remains that the entire work was not completed by the defendants. So far as the claim under D-schedule is concerned, according to the plaintiff, the defendants have committed breach of contract by not supplying the cement and steel and did not make the payments of the whole part bills and a sum of Rs.1,00,509/- was deducted from the work done at the time of payment of the part bill. According to the defendants, these amounts are also to be realised only after completion of the work under condition No.9 under clause C of the agreement, there was a deduction of 10% of the work value and it is according to the agreement. Having agreed for such terms with eyes wide open it is not permissible for plaintiff to contend that he is entitled to the amount. So far as the claim under E-schedule is concerned, according to the case of the plaintiff, the metal required for the work was stocked and the work could not be taken up due to the fault of the defendants. According to the case of the defendants, the materials are to be collected only after C.M. and C.D. works and if the material is collected earlier, it is his fault. As per the agreement, the defendants are not liable to pay for any value of the items. The learned Senior Civil Judge considered this aspect and also the evidence of PW.1 to the effect that if any material is stolen the department is not concerned and therefore, the claim is not bona fide. The claim under Schedule F of the plaintiff relates to the loss of interest on part bills due to the delays. The amount claimed is Rs.86,878/-. Evidently, as per the P.S.69 of APDSS no liability is there for payment of the interest on delayed payments and all the payments were made to the plaintiff as far as possible and from the record also there is nothing to show that there was any abnormal delay on the part of the defendants in making the payments. At any rate when there is no agreement to pay interest, the plaintiff is not entitled for the same. So far as the claim under G-Schedule is concerned, it relates to forfeit a sum of Rs.500/- is deposited, and the right of the defendants to impose penalty cannot be denied. So far as the Claim under H-schedule is concerned, the plaintiff claims that work was done by him and the measurements were not recorded for Rs.20,377/- and therefore, he is entitled for the same. According to the defendants, the levels of work have been taken and recorded in the L.F. books and the final levels will be taken only after the completion of the earth work, then only the payment will be arranged as per the agreement. Evidently, in this case, the plaintiff has not completed the work and he could not prove bona fides. Therefore, his claim cannot be considered. Claim under I-Schedule relates to the differential value of the work and the cost of the same during the extended period. The amount of claim is Rs.2,69,800/-. Evidently, as per the agreement, there is no condition that in case of extension of time, the difference in rates of the work have to be paid by the defendants. On the other hand, as can be seen from the Ex.B.15, the plaintiff gave an undertaking that he will not make any extra financial claim for higher rates. In view of the undertaking given by the plaintiff he cannot claim any amount and it was rightly rejected by the lower Court. So far as claim under J-schedule the loss of profit is concerned, the claim is for Rs.1,36,411/-. Evidently, several extensions were granted at the request of the plaintiff, and the plaintiff has not completed the work in time or totally. Therefore, his claim for profit does not arise and is rightly rejected by the Court below. So far as the claim under K-schedule is concerned, it is said to be for refund of a sum of Rs.66,550/- towards the deposits. According to the defendant, the amounts of deposit only be returned after satisfaction of the completion of the work and expiry of six months from the date of completion of work. The deposit is evidently meant for due performance of the contract. In spite of repeated reminders from the defendants about the availability of the cement and material and to complete the work, the plaintiff has failed to complete the work. Therefore, after giving notices to the plaintiff only under Exs.B.6, 8 to 13 to resume the work and in case of failure the amount will be forfeited, the amount is forfeited. 12. Therefore, from the narration of the facts stated above, the plaintiff has not completed the work and there is no satisfactory explanation on his part as to under what circumstances, the work was not completed and the attempt to put the blame on the defendants does not appear to be acceptable. The defendants have acted legally as per the agreement and also as per the A.P.D.S.S. The defendants must have incurred further expenditure for completion of the work. 13. Therefore, in view of the above circumstances, the plaintiff has failed to prove that the defendants have committed breach of the agreement and that he could not complete the work or perform his contract for the fault of the defendants. Hence, the judgment and decree passed by the learned Senior Civil Judge does not call for any interference of this Court. Accordingly, points are answered. In the result, appeal suit is dismissed. There shall be no order as to costs. _______________________ N.R.L.NAGESWARA RAO,J Date:12.07.2011 INL