IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.759 OF 1991 1. The Collector of Sindhudurg ) at Kudal, Dist. Sindhudurg. ) 2) The Chief Secretary to the ) Government of Maharashtra ) Mantralaya, Bombay ) 3) The Superintending Engineer ) Konkan Irrigation Circle ) Ratnagiri, Kuwarbav, Ratnagiri ) 4) The Executive Engineer ) Minor Irrigation Division ) Kudal, at Sawantwadi, ) Dist. Sindhudurg. )..Appellants (org.Defendants) Versus Shri Bhagwan Vishram Dalvi ) age about 49 years, Occupation ) Contractor, residing at ) Kuldaleshwarwadi, Tal. Kudal, ) Dist. Sindhudurg. )..Respondent (org.plaintiff) ---- Mr.Bharat H.Mehta AGP for the appellants. Mr.Neel G.Helekar for the respondent. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 18.6.2008 Judgment :- 1. This is an appeal filed by the Collector of Sindhudurg, the Chief Secretary, Govt. of Maharashtra, the Superintending Engineer, Konkan Irrigation Circle and the Executive Engineer, Minor Irrigation Division, Kudal who are the original : 2 : defendants in Special Civil Suit No.79 of 1986. The appeal impugns a judgment and order dated 26.4.1991 passed by the Joint Civil Judge (Senior Division), Ratnagiri in Special Civil Suit No.79 of 1986. The impugned judgment and order decrees the plaintiff’s suit which was for recovery of money, with costs. The impugned decree provided that the plaintiff was entitled to recover an amount of Rs.2,10,500/- from the defendant with interest at the rate of 6% per annum from the date of suit till its realisation. 2. The facts of the case were that on 6.8.1983, the Irrigation department of the Govt. published a tender in the local newspaper relating to construction of a checkwall and the plaintiff who was a Govt. Contractor filled the said tender on 22.8.1983. This tender was accepted at 4% above the costs, for an amount which was quantified as Rs.2,08,989/-. That after the acceptance of the tender by the defendants, the plaintiff immediately started to collect raw materials. He collected sand and rubble. According to the plaintiff he started his work of collecting sand on 17/12/1983, as he has to complete the tendered work within 30 days. The work order was issued to him on 23.12.1983. That on 25.12.1983 Executive Engineer of defendants visited the spot and orally instructed the plaintiff that the site was required to be changed. The official letter about change of site was however, issued to : 3 : him on 31.12.1983. That by the change so effected the check wall to be constructed, was shifted about 34 meters upstream away from the then existing waste weir bar. That because of this change, the quantity of excavation would have increased by about three times and it was impossible for the plaintiff to complete the work within the stipulated time of 30 days. The plaintiff accepted this change and continued his work. The work of dewatering also substantially increased due to the aforesaid change and by the end of January-1984 the work of excavation was practically completed. It was further case of the plaintiff that while he was so working, on 6.2.1984 the 2nd change was unilaterally effected and the height of the wall was directed to be raised. That the plaintiff continued with the work till 8.3.1984. That on 4.4.1984, a tender was taken out for construction of bandhara instead of a check wall. This was a different kind of work and the estimated cost was increased to Rs.4,92,000/- and on 16.4.1984 a new Contractor was appointed as per the new tender. It was contended by the plaintiff that he was not paid for the work done of for the cost of the material procured by him and in such circumstances, the plaintiff filed a suit for recovery of an amount of Rs.3,65,120.24/-, the particulars of which were given in paragraph-12 of the suit. This included an amount of Rs.60,000/- in lieu of damages in breach of contract and interest : 4 : calculated @ 12% from the date of the suit notice i.e. 15.9.1985 to the date of the execution of the suit. On behalf of the defendants a written statement was filed, denying the plaintiff’s case and in due course, issues were framed. 3. On behalf of the plaintiff, 4 witnesses were examined. Of these, plaintiff’s witness no.1 was Chandrakant S.Sawant who purported to be a panch of a private panchanama executed on 30.3.1984 to show the nature and quantities of the materials lying at the site. PW-2 was Shashikant Sundar Anavkar who also spoke about the quantity of sand lying at the place of construction. PW-3 Daji Vishram Aiar was the 3rd witness who was the person from whose land stones were blasted by the plaintiff for construction of an approach road. He also talked about the stone material which he saw on the plaintiff’s land. PW-4 Bhagwan Vishram Dalvi was the plaintiff and he stepped into the witness box to prove his case and justify his claim. 5. On completion of the evidence of the plaintiff, defendants examined DW-1 Doulatraj Godse who was a junior Engineer at the relevant time serving at the Hateri Minor Irrigation Tank. This witness produced certain documents including the final bill said to have been prepared after taking measurements and according to which the amount due and payable to the : 5 : plaintiff was Rs.18,776/-. 6. I have heard both sides and perused the entire record. In my view, the evidence clearly indicates that after tendering a contract the defendants unilaterally changed the nature of the work. The witness of DW-1 Doulatrao Godse admitted in his examination-in-chief that on 6.2.1984 it was decided to have a change of site. That in this change it was decided to extend the height of the check wall. However, in the cross-examination he further admitted that earlier on 25.12.1983 the Executive Engineer has visited the site and has suggested a change of the location. He further admitted that a letter dated 31.12.1983 recording this change was sent to the plaintiff. He however, contended that the work done by the plaintiff was worth Rs.26,000/- only. In my view, therefore, the fact that there were 2 unilateral changes in the nature of the work is virtually admitted. 7. The only question that remains was the amount that required to be paid to the plaintiff. In this regard though the version of the other witnesses of the plaintiff is vague and at variance as regards the quantity of sand and/or stones they found lying on the site, the version of the plaintiff in his examination-in-chief was as follows :- : 6 : " In all 19,000 were paid by me in advance to the labourers. I had constructed a shed to keep my material and machinery and I was required to spend Rs.5000/- for the said shed. Rs.30,000/- were spend for construction of road and Rs.5000/- for labourers. Rs.42,000/- for rubbles and Rs.15000/- for sand. I had paid Rs.8,500/- against security deposit to the defendants. I have claimed Rs.60,000/- as damages for assessing the profits for the year." 8. It is seen that though the plaintiff did not produce any bills or receipts to justify his claim, yet there was no cross-examination whatsoever on this point. In my view, the plaintiff would not be entitled for any damages. Apart from a bare claim for damages in the plaint and in his evidence, he has not given any heads or partidulars about the nature of the damages sufferred. As regards the other amounts claimed by him, they are Rs.19,000/- as advances to labourers, Rs.5000/- for construction of shed, Rs.30,000/- for construction of road, Rs.5000/- for labourers, Rs.42,000/- for procuring rubbles, Rs.15000/- for procuring sand and Rs.8500/- for security deposit. It is seen from the record that actual amount for security deposit was Rs.8,348/-. Allowing for this change the : 7 : plaintiff’s claim comes to Rs.1,24,348/-. I find that the plaintiff has completely failed to prove his claim for damages as he was required to give particulars and heads of damages and also to lead evidence to show that he suffered such damages. 9. In my view, therefore, the First Appeal requires to be partly allowed. The impugned judgment and order passed on 26.4.1991 in Special Civil Suit No.79 of 1986 is required to be modified. It is decreed by the plaintiff to recover amount of Rs.1,24,348/- from the defendants with interest @ 6% per annum from the date of the suit till its realisation. The amount deposited in Court will be dis-invested and remitted to the executing Court. If a darkhast is filed within a period of four months unless there is any further judicial order, the executing Court will calculate the amount due to the plaintiff and after retaining the same, will refund the balance if any, to the original defendants. If no darkhast is filed within a period of four months, the entire amount will be refunded to the defendant subject to the rights of the defendant of filing of appropriate darkhast in accordance with law. Appeal stands disposed off. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)