IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :26.06.2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL APPEAL SUIT No.222 of 2001 - - - - R.Kannaiyan ... Appellant / Plaintiff Vs. 1.The Secretary Highways and Rural Works, Chepauk, Chennai-5. 2.Chief Engineer, Highways and Rural Works, Chepauk, Chennai-5. 3.Superintending Engineer (H) Highway and Rural Works, Trichy Road, Coimbatore. 4.Divisional Engineer, Highways and Rural Works, Bombay Castle, Ooty. 5.Assistant Engineer, Highways and Rural Works, Guddalore Via, Ooty. ... Respondents/Defendants Appeal suit filed under Section 96 of Code of Civil Procedure, against the judgment and decree dated 31.08.1999 in O.S.No.137 of 1993 on the file of the III Additional Sub-Judge, Coimbatore. For appellant : Mr.P.Saravana Sowmiyan For Respondents : Mr.V.Ravi, A.G.P. J U D G M E N T The appellant/plaintiff has preferred this appeal as against the judgment and decree made in O.S.No.137 of 1993 on the file of the learned III Additional Subordinate Judge, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 2.The necessary facts of the appellant/plaintiff's case are set out below: (i)The appellant/plaintiff is a Contractor doing civil work like construction of buildings, laying of road bridges etc. The construction work of a bridge at kilometre 5/4 of Hellan Yellamalai road in Nilgiris District has been entrusted to the appellant/plaintiff as per agreement No.C.R.22/85-86 dated 11.9.1985. The said agreement has been signed by the appellant and the Superintending Engineer (Highways and Rural Works) Coimbatre. In fact, the said agreement has been signed at Coimbatore by the appellant/plaintiff and the third respondent/third defendant prior to the agreement, tenders have been called for at Superintending Engineer viz., the third defendant and that the appellant/ plaintiff has accepted and the contract has been settled for Rs.21,27,373/-. (ii)The appellant/plaintiff in terms of the agreement dated 11.9.1985 has to complete the construction of the bridge within a period of 1 1/2 years from the date of handing over the site to the appellant. The respondents 4 and 5/defendants 4 and 5 have been acting according to the instructions of the third respondent and they have been dealing with the appellant at the works spot. the respondents 3 to 5 have agreed to hand over the site plan, detailed plans, and copies of the agreement etc. to the appellant/plaintiff before the commencement of the work. The appellant/plaintiff has not been in a position to start the construction work in the absence of specific plans and copies of agreement which have to be handed over with the signature of the third respondent/ third defendant, the appellant/plaintiff has not been in a position to start the construction work immediately in view of the inordinate delay in handing over the documents mentioned supra. The appellant/plaintiff later has inspected the site at Yellamalai road and to his surprise has found some huts, RCC terraced building and the same have been reported to the fourth respondent/fourth defendant as per letter dated 11.12.1985. (iii)The appellant/plaintiff has been threatened by the local people since they have raised an objection to the bridge on the footing that the excavation of hard rock work and blastering hard rock will endanger the private properties. The RCC terraced building will have to be demolished before the commencement of the work. The respondents 3 to 5/defendants 3 to 5 have failed to take proper steps for clearing the sites for the commencement of the work. The appellant/plaintiff has received the copy of the agreement and plan on 21.2.1986, after a delay of about five months as per the Assistant Divisional Engineer Gudalur's letter dated 21.2.1986. The appellant/plaintiff has to excavate the earth to a depth of six metre until hard rock has been found. when the appellant/ plaintiff has commenced the excavation work, he has not found the hard rock, even https://hcservices.ecourts.gov.in/hcservices/ after the earth has been prepared on the basis that hard rock can be struck at 6 metres as per the samples bore and a boring chart have been prepared and this has been reported to respondents 3 to 5 immediately and they have been orally instructed to stop the work. The respondents 3 and 4 have been informed the plaintiff that the work can be resumed after obtaining sanction from the Chief Engineer for the revised designs. In the meanwhile, in July 1986 there has been heavy flood, due to which the earth work already done has got silted heavily. (iv)When the appellant has asked the department either to remove the silt or separate the payment for silt clearance, the respondents 3 to 5 have replied that the appellant/himself has to do the same in pursuance of the terms and conditions of the agreement. However, the appellant/plaintiff has cleared the silt only with a good intention to carryout the work without any further delay at his own cost and in this regard, the appellant has expended a sum of Rs.23,323.06/-. (v)The sand required for the work as per agreement will have to be brought from Kakkanalla, which is at a distance of 36 kilometres from the site. During excavation it has been found out that the quarry Kakkanalla lies under the jurisdiction of Reserve Forest area (wild life) and hence the sand cannot be taken from this quarry. The Forest Department has objected for it and has not permitted the appellant/plaintiff to take sand from quarry. When the appellant/plaintiff has reported the said fact to respondents 3 to 5, they asked the appellant to bring the sand from Nilambur in Kerala which is at a distance of 87 kilometres from the site area. The fourth respondent/fourth defendant (Divisional Engineer) by virtue of his letter dated 29.9.1987 has agreed to pay for the expenditure incurred on account of extra expense of Rs.71,913.60. (vi)The appellant/plaintiff has to perform the work and fixing of Elastomsetric Rubber bearings of 500 x 320 x 84 mm including the cost of conveyance to work site, labour for fixing the bearing in correct position and all other incidental charges etc. for a total amount of Rs.28,800/- in terms of the agreement. (vii)The fifth respondent/fifth defendant as per his letter dated 25.11.1988 has asked the appellant/plaintiff to purchase the Neoprin Bearings together with its test certificate for fixing as in position and the same have been purchased from M/s.Killick Nickson Company Limited, Bangalore by the Department and a sum of Rs.14,976/- has been paid through cheque dated 1.12.1988. Though the Department has purchased the bearing, the appellant/plaintiff has brought the same from Bangalore to work site and fixed them in position at the cost of the plaintiff, as per the direction of the Department officers. A sum of Rs.13,824/- has to be paid towards reimbursement cost in bringing the bearings from Bangalore to the work site etc. The https://hcservices.ecourts.gov.in/hcservices/ appellant/plaintiff is also entitled to claim the interest for the aforesaid amount. (viii)The portion of the site only has been made available in February 1988 and that too after the delay of two years and the construction work of abutment at Yellamalai has been completed in October 1989 and the payment has been made during October 1989 and the appellant/plaintiff has received the same under protest because the amount paid has not been admitted by the appellant. The appellant/plaintiff has incurred a total loss of Rs.3,93,274/- because of the inordinate delay by means of fixing in correct quarry, not removing the encroachment, revising the design after the work has commenced and stoppage of work. The break-up details for the loss of Rs.3,93,274/- is as follows: Silt clearance work Rs. 23,323.06 Extra lead involved involved in the transfer of sand Rs. 71,913.60 Conveyance charges and labour charges for Neoprin Rubber bearing Rs. 13,824.00 Difference in rates between the year 1983-84 and 1989-90 Rs.2,84,213.65 --------------- Rs.3,93,274.31 --------------- (ix)The appellant/plaintiff is entitled to claim the interest at 18% per annum because the transaction is of a commercial nature, from the date of filing of the suit till date of realisation. Hence, the suit is *filed for the recovery of a sum of Rs.3,93,274/- with subsequent interest at 18% per annum from the date of suit till the date of realisation and for costs. 3.In the written statement filed by the respondents 4 and 5 (defendants 4 and 5) and adopted by third respondent, it is inter alia averred that there is no agreement to furnish the site plan, detailed plan and copies of the agreement and in fact, the copies of the agreement have already been given to the appellant/plaintiff and if at all, the appellant requires any plan, he can simply get such a document by a requisition in writing to the concerned official even apart from any agreement and without any recital in the agreement the appellant has averred in the plaint in regard to the alleged document and non furnishing of the same as though the officials have committed fault etc. and that the huts and RCC terraced buildings are situate only in the approach side entirely in a different side altogether, which has nothing to do with the construction and with a construction of the bridge in the place in question or in the work site and https://hcservices.ecourts.gov.in/hcservices/ because of the some encroachment at some place it does not mean that the appellant's works has been stagnated by the huts and RCC terraced buildings situate on the other end of the work site and no obstruction has been caused in any manner and therefore, the question of removal and the obstruction do not arise at all. 4.It is also the stand of the respondents 3 to 5 that the excavation of hard rock work or blastering of hard rock never be an endanger to any private properties and for commencing the work no building need be removed or demolished and nothing has been happened and the department has taken necessary steps to remove the encroachment and that the Government property has been recovered and this lawful action has nothing to do with the construction of work or with the commencement of the work. As such, there has been no delay that too for a period of five months as averred by the appellant. 5.The appellant/plaintiff has failed to start the work after having deleted the matter, the appellant has chosen to state that because of the encroachment and all other reasons projected by him, the delay has occurred and the reasons are all false one. Before the submission of his tender, a duty is caused on the appellant/plaintiff to satisfy and verify himself in regard to the hard rock and the depth. When the hard rock depth has been found out beyond 6 metres, the Chief Engineer has revised the rate and the excess amount has also been paid and the accounts have been settled. In regard to the flood silting and earth slips and structural collapse are concerned, these are all Acts of God and hence, the respondents are not responsible for these happenings, the respondents are not liable to pay the amount of Rs.23,323.06 towards silt clearance work and it is outside the scope of the agreement. There has been no agreement for making payment towards silt clearance and as such, the claim of the appellant is arbitrary and a baseless one. The appellant has not spent a large amount of Rs.23,323.06 towards silt clearance and that the expenditure incurred in this regard he has to bear the same by himself and he cannot pass on the buck on the respondents. In view of the provision contained in the agreement itself to which the appellant is a party, the appellant is not entitled to turn round and make the claim. 6.The appellant/plaintiff has a contractor's duty will have to secure sand for any work and after entering into the agreement it is not open to him take a plea that the sand is not available in the quarry and he has been perforced to take the same from a distant place and therefore, he has incurred an expenditure which must be paid by the Department. Whatever expenditure met by him he has to pay and it is his liability to look after the same. The appellant is to prove that he has expended Rs.71,913.60 and he must establish that the respondents are liable to pay the said amount. The respondents/defendants have not agreed to pay any extra amount, because it is the bounden duty of him to secure sand from the quarry https://hcservices.ecourts.gov.in/hcservices/ or from a distant place. The appellant/plaintiff cannot put the blame on the department and after having entered into an agreement then it is his duty to secure the sand from each and every place he likes. The appellant is not entitled to claim extra amount beyond the scope of the agreement. 7.The appellant/plaintiff has nothing to do with the bearings and he has not spent any amount towards the bearings and they are all false suits. As such, the question of reimbursement does not arise. The appellant is not entitled to claim a sum of Rs.13,824/- or any other amount. No loss has been sustained by the appellant to an extent of Rs.3,93,274/-. There has been no difference in rates between 1983-1984 and 1989-1990 to an extent of Rs.2,84,213.65 so as to enable him to claim such an amount at a belated stage. If at all the rates have been changed from the year 1983-1984 and 1989-1990 he should have obtained sanction for the different amount prior to the commencement of the work or atleast he should have entered into a fresh agreement with the department. By accepting the specific tender for a specific amount as per agreement it is not open to the appellant to claim the difference amount in rates and he is estopped from doing so. The subject matter is a contractual transaction and it is not a commercial one. There is no agreement for payment of interest the appellant is not entitled to claim any interest at all. The suit filed by the appellant is speculative. There is no cause of action for the suit and the cause of action alleged is false. The suit has framed as not maintainable. 8.After completion of the work as a willing and consenting party the appellant/plaintiff has settled entire amount and he has received the EMD, FDS amounts held by the Department and that too after the observation period and as such, the agreement has come to an end after the same having been fulfilled. Therefore, the appellant/plaintiff is precluded from reopening the matter and to contend differently without recourse to the arbitration clause etc. the filing of the present suit is a premature one and the same is not maintainable in law. 9.The appellant/plaintiff has not issued a mandatory notice as per Section 80 of the Civil Procedure Code. Therefore, the suit is to be dismissed with exemplary costs. 10.On the basis of the above pleadings, the trial Court has framed four issues. On the side of appellant/plaintiff, witness P.W.1 has been examined and Exs.A.1 to A.32 have been marked and on the side of respondents /defendants, D.W.1 has been examined and Exs.B.1 to B.20 were marked. On an appreciation of oral and documentary evidence and on consideration of available material evidence on record, the trial Court has resultantly dismissed the suit with costs. 11.The point that arises for consideration is: https://hcservices.ecourts.gov.in/hcservices/ Whether the appellant/ plaintiff is entitled to claim the sum of Rs.3,93,274/- with subsequent interest at 18% per annum from the date of filing of the suit till date of realisation from the respondents/ defendants together with costs? 12.Findings: The appellant/plaintiff as P.W.1 in his evidence has deposed that for constructing a bridge Ex.A.1 agreement has been entered into between the parties at Coimbatore and the time limit prescribed under the agreement is 18 months and before the completion of the 18 months the work has to be completed and that the plan has been furnished during February 1986 and from the date of site clearance the time limit for the agreement is 18 months and further that the site has not been cleard on Ex.A.1 agreement dated 11.9.1985 and in the site there have been shops and buildings in existence and that he has written a letter Ex.A.2 and the site has been cleared in entirety and handed over to him only during February 1988 and that he has completed the work during April 1989 and since the site has not been cleared by the defendants, there has been a delay in regard to the completion of the work an since he has constructed the bridge in 1989 he has to be paid as per the tender prize amount and there is difference between the 1984 tender amount and the 1989 tender amount. 13.It is the further evidence of the P.W.1 that when excavation work has been done upto a depth of 6 metres then there has been only a clay place and he has dug up to a depth of 6 metre breadth and 13 metre length and further that he has not been given the prize amount for bringing the sand from a distant of 100 kilometre from Neelambur and he has been given only a prize list for obtaining the sign from Kakkanalla only from a distant of 35 kilometres. 14.Added further, the P.W.1 during the course of his evidence has deposed that during October 1989 he has completed the work for which he has been given a cheque one month later and that he has received the same with objections and because of the respondent/defendant's activity he has incurred a loss and it is incorrect to state that he has to procure the sand, iron rods and since the delay has been committed by the respondents/defendants he has to be given the amount as per 1989 rates. 15.D.W.1 in his evidence has stated that the plaintiff has accepted the suit site on 02.3.1986 as per Ex.P.4 and after accepting the same he has signed in the said document and on 11.2.1986 the plaintiff has asked for the approved plan and that the same has been furnished by the defendants on 21.2.1986 and 02.3.1986 the plaintiff has accepted the site work place officially and he has received the approved plan before the 2nd March 1986 and as per Condition No.33 and as per Condition No.47 the plaintiff has to do the bore work in his individual capacity and to rectify the same and the corrected map is Ex.A.3. https://hcservices.ecourts.gov.in/hcservices/ 16.Continuing further, it is the categorical evidence of D.W.1 that as per Condition No.39 of Ex.B.1 if any delay is caused beyond the control of the department during the execution of the work then for causing such delay the department is not responsible and that as per condition No.59 the contractor has to take an insurance towards all risks and that the iron rods have been given by them and that it is not the work of the defendants to supply grips. 17.The Condition No.25 in Ex.B.1 Tender Document enjoins that 'the prices at which and the source from which certain materials shall be obtained by the Contractor are given at ... of the schedule accompanying the tender form etc. and notwithstanding any subsequent change in value for those materials the charge to the Contractor will be as originally entered in the written contract.' 18.In the clause 33 in Ex.B.1 Tender document it is laid down as follows: "In tender when submitting the tenders should certify in the tender that they actually inspected the site before tendering for the works and have examined before tendering the nature and extent of various kinds of soils at various depths and any deviations from these given by department and have based their tenders on such examination by them." 19.In the present case on hand, the conditions of Ex.B.1 tender plays a significant part and therefore, it is useful for this Court to extract the relevant clause 39 which runs as follows: "If any delay is caused beyond the control of the department during the execution of the work, such as acquiring lands, concurrence from other departments of supply tools and plants and cement, the department will not bear any responsibility." 20.The other condition clause 47 also goes on to point out that the levels are furnished in the plan are based upon the investigation done by this department. If there be any change in levels, water levels etc., during actual execution, the contractors are bound to accept them and they are not eligible for any extra claim for such change in levels. Apart from the above two conditions the condition No.58 in Ex.B.1 also point out that the contractor should take risk insurance at his cost, loss due to unpresented floods and other Acts of God as per G.O.Ms.No.620 TD dated 22.7.1978. 21.In the Standard Specifications for Road and Bridge Construction, in the chapter 1 Preliminary Specification it is mentioned under the caption PS:102 Scope 102-01 Scope of Preliminary Specification that the same shall form an inseparable condition of https://hcservices.ecourts.gov.in/hcservices/ contract in all agreements entered into by Contractors for executing works for the Madras Highways Department, and it shall not be necessary to append a copy of the specification to the agreement and if any of these conditions are not applicable to any particular contract or system of contracts, it will be clearly indicated in the tender notice. Furthermore, in Preliminary Specification 102-02 under the head Applicability of Standard Specifications it is stated that 'All work shall be performed in conformity with the Standard Specifications. The relevant portions shall be designated in the contract documents by the appropriate Standard Specification number. The text of such Standard Specification will not be recited in the tender documents. Every Contractor who tenders for or executes a work in the Department shall be deemed to have a through understanding of the Standard Specification in so far as they govern that work. 22.In case there is no Standard Specification for any particular item of work, or the Standard Specification needs to be modified the necessary additional specification or modification shall be set forth in detal as special provisions in Schedule C.' 23.As a matter of fact, in para 102-04 under the Delegation of Powers it is stated as follows: "Provided always that the authority who has accepted the agreement for the work shall make no delegation of powers to his subordinate in respect of orders and decisions concerning the extension of time for completing the contract or any other matter in which his decision is to be final and conclusive, the orders of the Engineer in these matters shall be subject to his ratification." Also in para 103-03 of the Preliminary Specification in regard to the examination of plans, specifications, special provisions and site of work it is laid down as follows: "The bidder is required to examine carefully the site of the work, the proposal, plans, specifications, special provisions, and contract forms for the work contemplated; it will be assumed that the bidder has investigated and is satisfied as to the conditions to be encountered for performing the work as scheduled or as at any time altered in conformity with PS:105-04. It is mutually agreed that submission of a tender shall be considered conclusive evidence that the bidder has mad such examination and is satisfied as to all the conditions and contingencies." Therefore, from the reading of clause 103.03 it is quite evident that the submission of tender is deemed to be a conclusive proof that a bidder has made such an examination has envisaged in the clause and https://hcservices.ecourts.gov.in/hcservices/ he has satisfied himself in regard to all the conditions and contingencies. 24.It is not out of place to point out that para 107-02 of the preliminary specification goes on to say 'All materials shall be obtained from the sources designated in the contract. The excavation of materials from sources designated in the contract shall be under the direction of the Engineer at all times in so far as selection of material or exact location of excavation is involved. If sources previously approved