( 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 ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION USJ SUIT NO.3341 OF 1992 SUIT NO.3341 OF 1992 SUIT NO.3341 OF 1992 Vidyadhar Gopal Soman carrying on business as Government Registered Contractors and Builders, in the firm name and style of M/s. Subhash Construction Co. as Sole Proprietor thereof and having his office at 4, "Krishnanjali", Tai Pingle Chowk, Bhagatsingh Road, Opp. Alankar Society, Dombivli (E), Maharashtra ..Plaintiff V/s. 1. Maharashtra Housing and Area Development Authority, through the President, Maharashtra Housing and Area Development Authority, Griha Nariman Bhavan, Bandra(E), Bombay-400 051. 2. The Chief Officer, Konkan Housing and Area Development Board, Griha-Nariman Bhavan, Bandra(E), Bombay - 400 051. 3. The Executive Engineer, Konkan Housing and Area Development Board, Griha-Nariman Bhavan, Bandra (E), Bombay - 400 051. ..Defendants ...... Mr. Deepak C. Natu i/by N.Deepak & Co. for plaintiff Mr. P.G. Lad, AGP with Ms. Kranti Jadhav for Defendants ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 3rd March, 2009 DATED : 3rd March, 2009 DATED : 3rd March, 2009 JUDGMENT : JUDGMENT : JUDGMENT : 1. The plaintiff has instituted the suit for recovery of Rs.42,26,813/- alongwith the interest and costs as set out in the prayer clauses. Plaintiff is ( 2 ) a proprietor of M/s. Subhash Construction Company. Plaintiff’s Company carries on activity in the nature of Civil Contractor and Builders. Defendant No.1 is Maharashtra Housing and Area Development Authoirty, a body established under the Maharashtra Housing and Area Development Act. Defendant No.1 manages the development of various properties for the purposes of housing and other purposes. Defendant No.2 is the Chief Officer of Konkan Housing and Area Development whereas defendant No.3 is the Executive Engineer of Konkan Housing and Area Development Board. Few facts necessary for the disposal of this suit are as under. 2. Defendant No.1 were interested in having certain work of providing Earth-filling for the composite plotted scheme at Chitalsar, Manpada, Dist. Thane. The defendants invited tenders and the plaintiff filed the said tender and complied with other terms and conditions. Defendants after processing the tender and after having dialogue with the plaintiff, accepted the tender and issued work order in favour of the plaintiff. This work order was issued on 25.1.1990 (Exh.P-6). Such issuance of work order is admitted by the plaintiff. As to what work which the plaintiff was required to carry out is at page 66 of the tender form. As per the tender form, the plaintiff was required to attend to composite ( 3 ) plotted development scheme at Chitalsar, Manpada, Dist. Thane in regard to 6 items and the said 6 items are more particularly described in schedule "B" to the tender form. The plaintiff has admitted that the total amount of tender cost was Rs.16,74,549.70 The plaintiff has facts in detail as to how the plaintiff wants to recover from the defendants Rs.42,26,813/-. The plaintiff in paragraphs 45 onwards has given the particulars as regards each item and has clarified as to how the plaintiff is entitled to recover the money from the defendants which are more particularly set out in paragraphs 45 to 48. 3. Plaintiff wants Rs.26,00,000/- towards the work executed but not measured or paid by the defendants. Rs.76,734/- are demanded on account of wrongful deduction from the 4th running bill. Plaintiff wants Rs.50,000/- towards Earth filling work which was done at the instance of the defendants to cover up the gaps between the boundaries of the plot acquired and the original natural ground, which has not been measured or paid to the plaintiff by the defendants. The plaintiff wants a sum of Rs.3,00,000/- towards the work being the difference payable to the plaintiff for the excess quantities over and above the agreement rates paid by the defendants. A sum of Rs.12,00,079/- is in the nature ( 4 ) of interest @18% per annum on Rs.30,26,734/- being the sum total of the 4 items which are set out in paragraphs 45 to 48. 4. It has been the grievance of the plaintiff that while the plaintiff carried out the work, the defendants did not give filling levels and work drawings. It is also the grievance of the plaintiff that they were required to change the alignment of 13.70 meters road on Survey No.153. The plaintiff claims that despite inaction on the part of the Officers of the defendants, the plaintiff carried out the work to the satisfaction of the defendants. It is also the case of the plaintiff that on above land there were heavy boulders, which the plaintiff was required to remove and for that the plaintiff was required to carry out extra work. It is specifically admitted by the plaintiff in his evidence that the suit is for recovery of extra work carried out by him. 5. It is also the case of the plaintiff that work was completed on 10.5.1990 and the measurements were taken on 10.5.1990. It is also the case of the plaintiff that measurements were taken again on 10.5.1991 and 15.1.1991 and the payments have been made on the basis of measurements taken on 10.5.1991 and 15.01.1991, which is illegal. According to ( 5 ) plaintiff, the plaintiff is entitled to the suit claim. 6. The defendants have filed written statement and the defendants have disputed the claim of the plaintiff as regards the money demanded in the suit. According to the defendants, the measurements taken on 10.5.1991 were for the purpose of preparing the running bill and final bill was to be prepared on the basis of measurements taken on 10.1.1991 and at that time, the question of shrinkage was also considered and that is how payment were made on the basis of measurements taken on 10.1.1991 and 15.1.1991 and that the payments to the tune of Rs.25,00,000/- and odd has been made to the plaintiff and that the said payment is in compliance with the contract between the plaintiff and the defendants keeping in the view the total cost of the tender is Rs.16,74,549.79. According to the defendants, the plaintiff has completed the job as per the items required to be carried out and set out in the tender form and measurements have been taken and payment has been made and as such nothing is due and payable to the plaintiff. 7. It is also the stand of the defendants that if it is the case of the plaintiff that the defendants’ ( 6 ) Officers orally ordered to carry out certain extra work, such orders were not binding on the plaintiff so as to make the defendants pay extra amount as the plaintiff were required to carry out extra work on the basis of written orders and in the absence of written orders from the Officers of the defendants, Plaintiff is not entitled to any amount even if it is the plaintiff’s contention that he has carried out extra work is considered. In substance, the defendants disputed the claim of the plaintiff. 8. Issues came to be framed on 7th July, 2004 and they are as under. ISSUES ISSUES ISSUES FINDINGS FINDINGS FINDINGS 1. Whether the plaintiff proves that he is entitled to the suit claim at the foot of In the Negative. the suit transaction as alleged ? As per the 2. What order ? operative part 9. Answer to each of the issue is mentioned ( 7 ) against the respective issue. 10. As the parties went to trial, plaintiff i.e. Vidhyadhar Gopal Soman, Proprietor of M/s. Subhash Construction Company, stepped into the witness box. His Engineer Mr. Rajshekhar Malkasamudra was examined as PW-2. That is to say two witnesses were examined on behalf of plaintiff, no witness was examined on behalf of defendants. 11. Learned Counsel Mr. Natu appearing on behalf of the plaintiff and learned Counsel Mr. Lad appearing on behalf of the defendants had taken me through the entire record in the manner in which they wanted to present their case before the Court. After having gone through the entire record and after considering the rival contentions, I am inclined to reject the case of the plaintiff. The reasons are as under. REASONS REASONS REASONS 12. Issue No.1 : Issue No.1 : Issue No.1 : It is required to be noted that the plaintiff had filed the tender and was required to perform 6 items so as to complete the job as per the tender. It is accepted by the plaintiff that the tender cost was Rs.16,74,549.70. If this is the ( 8 ) position, the plaintiff has to carry out work as per the tender requirements and receive Rs.16,74,549.70. Since, the plaintiff was required to perform the work in his capacity as a Civil Contractor and was required to perform work in respect of 6 items, it will have to be noted that the plaintiff was duty bound to comply with his contractual obligation in regard to these 6 items. What efforts the plaintiff was required to take for the purposes of fulfilling his contractual obligation, cannot be a matter of concern for the defendants. At the time of filing the tender, the plaintiff should have paid visit to the site, understand the precise nature of the work, make a note as to what efforts he would have to do to complete the job as per the tender requirement and then quote the figures which he expected to be receive from the defendants. It is admitted by the plaintiff i.e.Vidhyadhar Gopal Soman, PW-1 that the cost of the tender was Rs. 16,74,549/- if this be so, the plaintiff was required to do his job as per the tender specifications and accept Rs.16,74,549/-. It is admitted by Vidhyadhar Gopal Soman, PW-1 in his cross-examination that his firm has received Rs.24,02,309/- from the defendants by cheque towards the contract executed by him. If this be so, it is clear that the defendants have paid to the plaintiff not only the amount covered by the tender work but a ( 9 ) sum of Rs.8 lakhs and odd amount in excess of the tender amount. 13. Now we come to the question as to whether the plaintiff is entitled to the suit claim. The case will have to be considered from the angle namely the plaintiff has approached this Court with the positive case that he has claimed the amount for the extra work which carried out by him. This admission is seen in the cross-examination of Vidhyadhar Gopal Soman where Vidhyadhar, PW-1 admits that the suit filed by him is in respect of extra work carried out by him. He further says that excavation of work and filling of Earth was done on extra basis. He also says that while doing work on the site, he found certain big ditches which he had filled it by using Earth which was brought by out side with the help of 18 trucks / dumpers. He also says that on the site when the work was in progress two Engineers of the defendants namely Mr.Deodhar and Mr.Ahire had orally directed him to do so and therefore he had done this extra work. 14. Learned Counsel Mr. Natu appearing on behalf of plaintiff had drawn my attention to chapter 5 page 55 of the tender document and in particular clause 5. He wanted this Court on the basis of the aforesaid clause No.5 to hold that on the basis of the oral ( 10 ) orders issued by the Officers of the defendants, the job carried out by the plaintiff should be treated as the one for which the plaintiff is entitled to receive monies over and above the tender costs. He also submitted that as per clause 30 of the tender document, if the plaintiff was found carrying on certain work in excess of the tender requirements, the Officers of the defendants could have stopped plaintiff from doing the work and if such further order would have been issued then the plaintiff would not be entitled to receive any amount for the excess work. He submitted that in the present case, no officer of the defendants objected to the performance of the job by the plaintiff and therefore, the job done by the plaintiff was in consonance with the wishes of the defendants and, therefore, the plaintiff is entitled to recover monies from the defendants as claimed in the suit. 15. Considering the fact that the plaintiff has approached this Court for recovery of the amount for the extra work, which is carried out, the Court will have to decide whether the plaintiff is entitled to recover from the defendants the cost of the extra work, which is carried out by the plaintiff irrespective of the tender amount. In such a situation, the Court will have to consider as to under ( 11 ) what circumstances, the defendants would be liable to pay for the extra work which the plaintiff has carried out. For the purposes of deciding this question, one may assume for a moment that the plaintiff has carried out the extra work. In such a case, the only question is whether the plaintiff is entitled to receive monies for the extra work. 16. In connection with this, plaintiff himself i.e. Vidhyadhar, PW-1 has given certain admissions in his cross-examination and those admissions are relevant to be quoted. They are as under. Item No.1 :- Item No.1 :- Item No.1 :- It is true to say that if any work has to be executed in Government and Semi-Government Department, it requires the written order of the department. Item No.2 :- Item No.2 :- Item No.2 :- It is true to say that for carrying out extra work, we have not received any order in writing by the defendants. Witness volunteers that the work which we carried out at site at each stage, we have informed the defendants by writing. Item No.3 :- Item No.3 :- Item No.3 :- It is true to say that defendants had not issued any orders for carrying out ( 12 ) extra work. Item No.4 :- Item No.4 :- Item No.4 :- It is true to say that we do not have any record to show that we have incurred the expenses for the transportation of earth and the boulders. 17. The aforesaid admissions if perused carefully would clearly go to show that no instructions were received by plaintiff in writing from the defendants for the purposes of carrying out the extra work. He also admits that so far as practice in the Government and Semi-Government departments goes written order of the highest Officer of the Department is required for the work to be carried out. Even if it is accepted for a moment that the plaintiff has carried out extra work without their being written order from the Officers of the defendants, there is no justification for the plaintiff to carry out extra work, which was beyond the tender requirement. 18. It is also required to be noted that what was the total extent of the work required to carry out was known to the plaintiff and this is clear by the admission made by the plaintiff in his cross-examination, which is as follows. ( 13 ) "It is true to say that the proposed work which ought to have been carried out on the site was earlier explained to us before submitting the tender to the defendants". . If this be so, at the time when the plaintiff filed the tender he was fully aware of his responsibilities and the extent of the job, which he was required to carry out and the total amount of expenses which he will have to incur to comply with the tender conditions. If this is be so, any item of work which was ordered to be carried out by the Officers of the defendants at site in excess of the work covered by the tender, will have to be termed as an extra work. If the plaintiff was concious of the fact that in Government Department, written orders are required of the highest Officer for carrying out the work, the plaintiff did not insist for the written order and say that he did the work as per the oral orders said to have been passed by the Officers of the defendants. Even if it is accepted for a moment that such oral orders were issued by the Officers of the defendants, certainly the defendants in their capacity as a Government body cannot be held liable for the acts of his Officers, which were in excess of the responsibilities cast on the Officers by the ( 14 ) Government Department." 19. The plaintiff makes a grievance that the plaintiff was required to change the road line from South side to the Central side and for which some amount was required to be spent. The following question and answer is very material for the purposes of deciding this question. Que. Que. Que. Whether you have any documentary evidence in your possession to show that defendants’ then Officers have entrusted the work construction and changing of the road from South to Central side of the site, which is mentioned in the tender document ? Ans. Ans. Ans. No. 20. If this is the position, then the case of the plaintiff that he carried out this work regarding the road by modifying the terms and conditions of the tender document cannot be accepted. 21. A pertinent question was asked to Vidhyadhar, PW-1 in the cross-examination about the instructions in writing and the question and answer is very relevant. ( 15 ) Que. Que. Que. Whether you have obtained any letter from the then Engineer of the defendants in writing in respect of extra work carried out by you ? Ans. Ans. Ans. No. We have no documentary evidence in that regard. Mr. Vidhyadar PW-1 has volunteered to say something which is as follows. "The extra work was carried out on the site as per the oral instructions received from one Mr. Deodhar, the then Deputy Engineer of the defendants." . The aforesaid evidence will clearly go to show that according to plaintiff, oral instructions were given to carry out the extra work which will mean that the plaintiff acted on the oral instructions and not on the written instructions. If this be so, defendant No.1 as a body is not responsible to make the payment to the plaintiff. If Officers of the defendants orally told the plaintiff to carry out work, considering the fact that the oral orders pertained to ( 16 ) a work in excess of the tender requirement, it was absolutely necessary for the plaintiff to obtain written instructions and then proceed to perform the job. It is consistent case of the plaintiff that he proceeded to carry out extra work on the basis of oral instructions. If plaintiff proceeded to carry out extra work on the basis of oral instructions, the plaintiff cannot hold the master of the said Mr. Deodhar responsible. To that extent, stand of the plaintiff cannot be accepted." 22. The aforesaid discussion will clearly go to show that the plaintiff could do extra work only on the basis of written instructions. As the plaintiff carried out extra work without written instructions. The claim of the plaintiff cannot be granted as against the defendants. The plaintiff has examined his Engineer Rajshekhar as PW-2. Said Rajshekhar admits that he and others visited the site mentioned in the tender alongwith the company Officers namely Vidhyadhar Soman and one Mr. Subhash Pawar. He further admits that he personally surveyed the suit land and personally verified the nature of work as per the tender document. This will clearly go to show that the plaintiff’s Engineer who was to work at site was fully knowing the extent of work which was to be carried out and this assumes significance in so far as ( 17 ) the case of the plaintiff for extra work. 23. It is the grievance of the plaintiff that ground level measurements were not supplied. A question was asked to this witness Rajshekhar as to whether the ground level measurements were taken in presence and the company Officers of MHADA. Mr. Rajshekhar, PW-2 has answered in the affirmative. This will show that measurements were taken in the presence of the representative of the plaintiff and the representative of the defendants and therefore the plaintiff understood the nature of work and the work was done. 24. A reading of the evidence Vidhyadhar PW-1 and his Engineer, Rajshekahar Malkasamudra PW-2 shows that the plaintiff encountered certain difficulties in complying with the tender requirements in as much as he was required to put in extra effort to comply with the tender requirement. In my view, if a contract was to be performed by the plaintiff on the basis of tender conditions and tender specifications and if the plaintiff had estimated an amount to be spent to the job, plaintiff cannot make a grievance that in order to comply with the tender conditions, he was required to spent more amount of monies. This is being stated on the basis of the claim of the plaintiff that extra ( 18 ) work was required to be carried out by the plaintiff. In my view, it was the duty of the plaintiff to be cautious and to arrive at proper calculation and then submit the tender. The plaintiff submitted the tender cost as Rs.16 lakhs and odd amount and he did receive Rs.24,02,309/-, This will clearly go to show that the defendants have paid to the plaintiff the amount in excess of tender cost. It is required to be noted that it is not the case of the defendants that the plaintiff has not complied with tender specifications or the job carried out by the plaintiff was not in compliance with the tender requirements. If this be so, payment of a sum of Rs.24,02,309/- would show that the defendants have paid to plaintiff monies in excess of the tender cost as per tender conditions. 25. It was argued by the learned Counsel Mr. Natu appearing on behalf of the plaintiff that the Officers of the defendants have not stepped into the witness box and have not given evidence. Counsel for the plaintiff had relied upon the following Judgments. (i) Sardar Gurbaksh Singh V/s. Gurdial Singh and Anr. AIR, 1927 Privy Council, 230. (ii) Pirgonda Hongonda V/s. Vishwanath Ganesh and Ors. AIR 1956 Bom.251. (iii) Gopal Krishnaji Ketkar v/s. Mohamed Haji Latif and Ors. AIR 1968, SC, 1413. (iv) Nathuji Narayanrao Udapure v/s. Narendra Vasanjibhai Thakkar and Anr. 1981 Mh.L.J.446. (v) Deshraj Lakhiram Juneja v/s. Mohamad Ishaque S/o Sk. Ismail & Anr.2004(2) ALL MR 15. ( 19 ) . to contend that the adverse inference should be drawn against the defendants for not giving evidence in support of their case that they were not liable to pay the amount. It was argued by learned Counsel Mr. Natu that the plaintiff has discharged the burden so far as the extra work and therefore it was the duty of the defendants to give evidence to show as to how the defendants were not liable to pay monies to the plaintiff for extra work. As against this, learned Counsel Mr. Lad appearing on behalf of the defendants contended that if Vidyadhar PW-1 has given clear-cut admissions in his cross-examination that for performing a job in excess of tender requirements, i.e. to say for performing extra work, written orders are required and if the plaintiff has admitted in the cross-examination that no written orders were issued by the defendants, there was no question of the defendants giving evidence to prove that they were not liable to pay as per claim of plaintiff. 26. I have considered this aspect