IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.11.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.No.171 of 2001 Union of India represented by the General Manager, Southern Railway, Chennai-600 003. ... Appellant/Defendant Vs. M/s.R.S.Venkataraman, Engineering Contractor, No.8, Sokkanatha Gounder Street, Erode. ... Respondent/Plaintiff Appeal Suit filed under Section 96 of the Code of Civil Procedure, against the Judgment and Decree dated 07.03.2001 made in O.S.No.105 of 1969 on the file of the Principal Sub Court, Erode. For Appellant : Mrs.Lita Srinivasan For Respondent : Mr.S.V.Jayaraman, Senior Counsel For M/s.V.Rama Jagadeesan JUDGMENT The Appellant/Defendant has filed this present Appeal as against the Judgment and Decree dated 07.03.2001 in O.S.No.105 of 1969 on the file of Principal Sub Court, Erode. 2.The trial Court, while passing the Judgment in the main suit in O.S.No.105 of 1969 on 07.03.2001, has, among other things, observed that 'the Respondent/Plaintiff has performed 9,81,000 cubic feet work and for that the Appellant/Defendant has to pay a proper amount and further it has also held that the Respondent/Plaintiff has proved his case clearly and has prayed for by the Respondent/Plaintiff, the Appellant/Defendant has to pay a sum of Rs.2,78,604/- for 9,81,000/- cubic feet work along with interest at 12% per annum from 17.4.66 to 1968 and resultantly, passed a decree directing the Appellant/Defendant to pay a sum of Rs.3,24,246.69 paise to the Respondent/Plaintiff and also directed the Appellant/Defendant to pay 12% interest for Rs.2,78,604/- from the date of filing of the suit till date of passing of the decree and further to pay 6% interest per annum from the date of passing of the decree till date of realisation together with costs.' https://hcservices.ecourts.gov.in/hcservices/ 3.Before the trial Court, 1 to 8 issues have been framed for adjudication in the main suit. On behalf of the Respondent/Plaintiff, witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 to A.27 have been marked. On the side of the Appellant/Defendant, witness D.W.1 has been examined and Exs.B.1 to B.18 have been marked. 4.Being aggrieved against the Judgment and Decree passed by the trial Court in O.S.No.105 of 1969 dated 07.03.2001, the Appellant/ Defendant as an aggrieved person has projected this Appeal before this Court. 5.The points that arise for determination in this Appeal are: (1)To what extent the rock stones, jellies and sand have been removed? (2)Whether the Appellant/Defendant has agreed to pay Rs.284/- for 1000/- cubic feet? (3)Whether a sum of Rs.46,153.31 paise has been paid to the Respondent/Plaintiff in full settlement of the claim in respect of the additional work performed? (4)Whether the Respondent/Plaintiff is entitled to claim a sum of Rs.2,78,604/- with future interest at 12% per annum from 17.4.66 [less the amount paid under 12th and part bill]? (5)Whether the suit filed by the Respondent/Plaintiff is liable to be dismissed as per Section 79 of Civil Procedure Code? (6)Whether the suit filed by the Respondent/Plaintiff is against Article 299 of the Constitution of India? Contentions, Discussions and Findings on Point Nos.1 to 4: 6.The Learned Counsel for the Appellant/Defendant submits that the trial Court has decreed the suit filed by the Respondent/Plaintiff without considering the oral and documentary evidence available on record and that the Executive Engineer, Olavakkot as per letter dated 26.5.65 has clearly stated that for additional work, payment would be only according to the Basic Schedule of Rates and as per terms of Annexure V to the Agreement, the Respondent/Plaintiff has seen the location and having received the communication is deemed to have accepted the rates since after receiving them the Respondent/Plaintiff went ahead and complete the work and there is no express or implied agreement to pay Rs.284/- per 1000 cubic feet. 7.The Learned Counsel for the Appellant/Defendant urges that the basic rates as per Item IV Schedule B, in respect of similar work is Rs.25/- per 10 cubic metres, upto a lead of 1 kilometre and Rs.29/- per 10 cubic metres upto a lead between 1 to 2 kilometres a total of Rs.46,153.31 has been calculated to be the amounts due in respect of the additional work and the same has also been paid and accepted by the Respondent in full settlement and after receiving the same, the https://hcservices.ecourts.gov.in/hcservices/ Respondent/Plaintiff is estopped from claiming any further amounts and moreover, the alleged assurance given by the Executive Engineer is not binding on the Administration nor a conclusive one and that the interest is also not payable and the actual quantity removed is only 617816 cubic feet and not 981000 cubic feet. 8.According to the Learned Counsel for the Appellant/Defendant, the measurement made by the Engineer in charge is final as per the General Conditions of Contract and there is also an arbitration clause in the General Conditions of Contract which forms part of the Agreement and as such, the suit filed by the Respondent/Plaintiff is not maintainable. 9.It is the further contention of the Learned Counsel for the Appellant/Defendant that D.W.1 is a responsible officer of the Appellant, who is competent to speak from the records and his evidence has to be given due weight by the trial Court, but the same has not been done and his evidence being rejected summarily is not a correct one. 10.The contention of the Appellant/Defendant is that the administration is measured the work done by the Respondent/Plaintiff and in fact, Ex.B.3-Agreement for the main job dated 14.4.65, Ex.B.6 sketch and Ex.B.7-sketch substantiate the actual quantity of work done by the Respondent and indeed, the Plaintiff has not chosen to attend the final measurement nor signed the document thereof and as per the General Conditions of Contract which forms part of the suit agreement, if after due notice, the contractor failed to attend the measurement, then the measurements as taken by the Engineer of the Administration is to be treated as final and binding on him and after due intimation, measurements have been done and the work of excavation done by the Respondent/Plaintiff has been plotted in the graph sheet and arrived as 617816 cubic feet. 11.The Learned Counsel for the Appellant/Defendant submits that the two Measurement Books along with other documents have been produced in the year 1973 pursuant to the notice given by the Respondent/Plaintiff and that the Measurement Books are missing from the Court Records and the trial Court has not taken any efforts to trace the same. 12.The Learned Counsel for the Appellant/Defendant contends that P.W.2-Executive Engineer as per Schedule of Powers is not competent to fix the rate for the additional work done by the Respondent/Plaintiff and as such, the evidence of P.W.2 is to be ignored. 13.On the side of the Appellant/Defendant, the Learned Counsel contends that the trial Court should have seen that P.W.2 being a Retired Officer of the Administration ought not to have given https://hcservices.ecourts.gov.in/hcservices/ evidence to substantiate their case of the contractor and against the interest of the Administration. 14.Expatiating the arguments, the Learned Counsel for the Appellant/Defendant submits that the evidence of P.W.2 is against the provisions of the Official Secret Act and also as per Sections 123 and 124 of the Evidence Act and as a matter of fact, P.W.2 has deposed about the various inter-department notes and correspondence. 15.Continuing further, it is the submission of the Learned Counsel for the Appellant/Defendant that the Respondent/Plaintiff as P.W.1 has clearly deposed that there is no written document to substantiate his contention that the rate of Rs.284/- per 1000 cubic feet has been accepted by the Administration. 16.Proceeding further, it is the contention of the Learned Counsel for the Appellant/Defendant that the trial Court failed to appreciate Ex.A.27-Letter dated 20.9.1965 of the Administrative Engineer [Works], Olavakkot is not admissible in evidence when he is not competent to accept the rates and the said Ex.A.27-Letter has been produced only at the time of trial. 17.The Learned Counsel for the Appellant/Defendant projects a plea that the Respondent/Plaintiff, after receiving Exs.B.11 and B.12 Letters of the Administrative Engineer, Olavakkot addressed to the Plaintiff dated 26.5.65 and 1.7.65 respectively, has gone ahead and completed the additional work without protest which would clearly imply that he had accepted the rates agreed by the Administration and after accepting the rates and completed the work, the Respondent/ Plaintiff is estopped from making any further claim much less Rs.284/- per 1000 cubic feet. 18.The Learned Counsel for the Appellant submits that 12% interest per annum awarded by the trial Court to the Respondent/ Plaintiff is an exorbitant one because of the fact that the Respondent/ Plaintiff is not entitled to legally claim any interest and that apart, the trial Court has no jurisdiction to award interest at 12% per annum because of the fact that Civil Procedure Code has been amended in the year 1976 which has come into force with effect from 1.2.1977 and by virtue of Section 97(e) of the Amending Act, it has been made clear that the provision of S.34 shall not affect suits filed prior to 1.2.1977 and in the instant case, the suit has been filed in the year 1969 and in reality, there is no agreement to pay interest. 19.Another contention put forward on the side of the Appellant/ Defendant is that the trial Court has not appreciated Ex.B.6-Sketch in a proper perspective and when the Respondent/Plaintiff himself has admitted in his evidence tacitly that he has not produced any document to substantiate his contention in regard to the quantum of https://hcservices.ecourts.gov.in/hcservices/ work, then, it is not appropriate for the trial Court to accept the case of the Respondent/Plaintiff that he has done the work to an extent of 981000 cubit feet. 20.The Learned Counsel for the Appellant submits that the trial Court ignored the Judgment of the Supreme Court in Civil Appeal No.921 of 1976 and the High Court, Madras in Civil Revision Petition No.2903 of 1973 and the trial Court ought to have considered I.A.No.910 of 2000 filed by the Appellant raising objections under Sections 123 and 124 of the Evidence Act and Official Secrets Act and the dismissal of I.A.No.910 of 2000 by the trial Court is an arbitrary one. 21.Lastly, it is the contention of the Learned Counsel for the Appellant that the trial Court has committed an error in casting the burden of proof lies upon a party claiming the compensation and in the absence of acceptable evidence, no damages can be awarded. 22.In short, it is the submission of the Learned Counsel for the Appellant/Defendant that the trial Court has not looked into the factual and legal position of the present case in a clear perspective, which has resulted in miscarriage of justice and therefore, prays for allowing the Appeal in the interest of justice. 23.In the instant case on hand, the evidence of P.W.1, P.W.2 and D.W.1 assume significance based on the facts and circumstances of the case. 24.The evidence of P.W.1 (Plaintiff) is to the effect that he has applied for construction of Diesel Shed in Erode and on 17.3.1965 the same has been approved by the Railway Board and on 14.4.1965 an Agreement has been entered into and before entering into an Agreement, the Engineers have come and inspected the place and on 22.3.1965 the Officers have come and inspected and at that time, for the first time in Railways Diesel Engine has been introduced and in short period before getting drenched due to rain, he has been directed to complete the work and in that place viz., at the building construction place jelly, sand have been lying to an extent of 10,00,000 cubic feet and without removing this matters, work cannot begin and the Officers have come and inspected the same and they decided to remove this articles by putting in the pit and directed him to commence the work and because of putting these materials in the pit, the money of the Railway getting saved and this job, remained as an additional one subject to the Agreement and he has been asked by the Chief Engineer to do this work and Balaraman is the Executive Engineer and thereafter, he has been asked to do the main job and he has informed them that he cannot do this work and by calling the other contractors they asked them to do this work but no one has come forward to do the same. https://hcservices.ecourts.gov.in/hcservices/ 25.It is the further evidence of P.W.1 that boulders, sand and jelly to an extent of 10,00,000 cubic feet will have to be removed and the Executive Engineer has asked him to do this work because other contractors on being asked have refused to do the same and he informed him that he will do the work and he demanded an amount of Rs.600/- to Rs.700/- for 1000 cubic feet without deduction and they agreed to pay Rs.400/- on an average and for boulders Rs.500/-, for sand and jelly Rs.300/- and in this, they agreed to pay Rs.400/- on an average and he has sent a letter dated 5.4.65, for which no reply has been received and they did the work on their own and on testing the same for them an amount of Rs.330/- has come and for removing the boulders skilled people services have been required and a lorry opening on three sides has been in need of and the rent of lorry has been high and the boulders will have to be equally placed and the lorry will move only in the first gear for which additional expense will have to be incurred and boulders cannot be taken in bullock carts and Executive Engineer-Balaraman has seen the same and during last week of March 1995 a test/check has been conducted and they informed that what he has said is correct and they agreed to pay one rate for which they asked him to agree and they directed him to commence the work and they agreed to pay the rate demanded by him and from 3.4.1965 he directed him to commence the work and accordingly, he commenced his work and completed the same and at that time, the Railway Officials have been present all along and they will note down the measurement in their books and in that book the entire job details will be there. 26.It is the further evidence of P.W.1 that through telephone and letter they have agreed for Rs.284/- and only in that respect he has put his signature and given the same and he has finished the additional work and in the summons they have obtained the signature for Rs.284/- and they informed him unilaterally that they will pay one rate and Exs.A.1 to A.26 are the letter correspondence between him and the Railways and they sent an information after agreeing to pay the same for which he has given his consent letter and that he has finished the additional work to an extent and that final bill has not been prepared by him and they fixed one rate to their liking and they have not put the bill amount as per agreed amount. 27.Added further, it is the evidence of P.W.1 (in cross examination) that while doing the additional work the Assistant Engineer has been present all along and looked after the same and further once in a week Balaraman-Engineer used to come and once in two weeks, Deputy Engineer used to visit and for Rs.284/- they have agreed and obtained his signature and accordingly, he has done the work but bill has not been prepared accordingly and they put a resolution by putting a flat rate and asked him to do the work, for which he has not agreed and also not done the work and later Engineer-Balaraman has come and inspected and at that time the work https://hcservices.ecourts.gov.in/hcservices/ has been stopped and again they informed that they will pay the rate amount of Rs.284/- as claimed by him and Balaraman informed him that after conducting the trial, he has agreed to pay the same and in his presence the trial has been conducted and by keeping a lorry the trial has been conducted and for 1000 cubic feet without deducting voids the flat rate of Rs.314/- has been worked out and since it is on the high side they asked him to agree for old rate of Rs.284/- for which he has not agreed and for this he sent a reminder and they have refused and he has been informed that the negotiation rate Rs.284/- has been recommended and sent and they asked him to work for the said rate and since in Andra at Goody place the engine to come for Erode Diesel Shed has been there and therefore, he has been asked to finish the work quickly and that he has worked day and night in lorry and ¾ work he has been finished and again a dispute has been raised and once again he stopped his work and the General Manager and the Chief Engineer have come to the spot and in his presence they have decided to pay at the negotiation rate and he has received a letter through the Department and in that they have informed that they have agreed for the rate stated by him and that letter has come from Palghat Olavakkot Engineer-Balaraman and he has finished his work and till date no final bill has been prepared and part bill only has been prepared and in that said bill they have not mentioned Rs.284/- and he has received the amount under protest and he has written like this and affixed his signature in the Defendant's bill viz., Ex.B.1 and he has finished the main and additional works. 28.P.W.1 in his further evidence has deposed that he has to be paid at the rate of Rs.284/- for 1000 cubic feet without deducting the void and he has not filed the account statistics details and further he has not filed a document for Rs.284/- and he is keeping an accounts expenses incurred for additional work which he has not filed and Exs.B.2 and B.3 are the Agreement and Ex.B.4 is the B.S.R. Book and he has record for providing jellies, sand etc. to an extent of 1,00,000/- cubic feet and he has a record for doing the work to an extent of 9,81,000 cubic feet and it is incorrect to state that he has done the work to an extent of 17494 cubic metre and it is not correct to state that 30.4.65 as per Book No.1089 from page 1 to 7, from page 10 to 13 he has done the work to an extent of 6,17,816. 29.P.W.2 [Retired Chief Engineer of Southern Railways] in his evidence has deposed that in the year 1965 he has served in Palghat he has been entrusted with the work of Diesel Shed and for carrying out this work Venkatraman-Plaintiff has been the contractor and though the said work has to be completed within a specified time the higher officials informed to finish the work quickly and above the place of work a high tension electric wire has been passing through and there have been many boulders at Olavakkot Division and only if the said boulders are removed/displaced, the work can be done and also that a telephonic wire has been passing through and the Deputy Engineer and Chief Engineer have come and inspected the place and he https://hcservices.ecourts.gov.in/hcservices/ has informed them of the details and instructed him to remove the boulders. 30.It is the further evidence of P.W.2 that if tender is invited for the work, then, there will be a delay of two or three months and therefore, it has been decided to give this work additionally to the Respondent/Plaintiff and if the work is given to another agency, then, there will be an inordinate delay because at a depth of 18 feet the foundation/base has to be made and initially the price has been fixed at Rs.320/- and they directed the Respondent/Plaintiff to do the work for Rs.284/- per 1000 cubic feet and since they compelled the Respondent/Plaintiff, he has agreed to pay a sum of Rs.284/- and completed the work and Ex.A.27 is the Letter dated 20.9.1965 written by him to the Respondent/Plaintiff and the Respondent/Plaintiff has agreed to complete the job without deducting voids at Rs.284/- for 1000 cubic feet. 31.P.W.2's evidence [in cross examination] is to the effect that removal of boulders is an additional work and at the Loco Shed work is the main work and the work commenced after his arrival at Erode and only after removing the boulders, the basement for the building can be put and only later the work can be commenced and till the completion of building work, he has not remained at Erode and he cannot say in which year he has been transferred but after the completion of additional work, and after the commencement of basement work, he has gone to transfer and before the commencement of work, the inside and outside measurements of boulders have been measured and written. 32.Continuing further, P.W.2 in his evidence has also deposed that he has not taken any notes separately at the time of doing the work and above him there have been higher officials and one Srinivasan, Assistant Engineer has helped him and his head office has been at Olavakkot and Exs.A.1 to A.6 are all his proceedings and he has sent the copies of Exs.A.4 to A.6 to the Assistant Engineer and it is his duty to send the copies to them and his job is to recommend the document given to him to the Chief Engineer and he cannot determine the rate and a rate can be fixed only if the higher official asks him to do so and only upon the orders of the higher officials for the additional job, he has determined the rate and send it. 33.Apart from the above, it is the evidence of P.W.2 that it is not correct to state that Ex.A.27-Letter dated 20.9.1965 has not been typed in the paper supplied by the Railway Department and signature in Ex.A.27-Letter belongs to him. 34.The evidence of D.W.1 [Section Engineer/works] is to the effect that he is serving in the Southern Railway as Section Engineer in Erode [Works Office] from the year 1995 and the presence of work https://hcservices.ecourts.gov.in/hcservices/ at the time of progression of the work are not in employment and they have retired and the suit documents pertaining to the year 1972-73 have been filed before the Court and besides this documents there are no other documents and that Ex.B.6 is the Plan pertaining to the suit place and by keeping a copy the work turned out by Respondent/ Plaintiff can be calculated and the suit property tender has been approved by the Chief Engineer and the Committee has approved the same in which the Respondent/Plaintiff has signed and in the Agreement, the boulder performed by the Respondent/Plaintiff has been removed and additional work has been done for which separate rate is available and B.S.R. rate has been fixed and Ex.B.4 is the related document of the year 1961 and after taking the boulder and dumping the same, the measurement already in existence and the measurements after dumping the boulders are mentioned in Ex.B.7-Plan. 35.Also, it is the evidence of D.W.1 that Ex.B.8 is the Chief Engineer's Inspection Report and that the Deputy Engineer's letter is Ex.B.9 addressed to S.G.Iyer and in that the B.S.R. Rate has agreed to be paid and the letter of Engineer-Balaraman addressed to the Assistant Engineer dated 19.4.65 is Ex.B.10 and Ex.B.11 is the letter written by the Administrative Engineer dated 26.5.65 addressed to the Plaintiff and Exs.B.12 and B.13 are the letters dated 30.6.65 sent to the Plaintiff and Ex.B.14 is the letter of the Plaintiff dated 1.4.60 addressed to the Administrative Engineer and Ex.B.15 is the letter addressed by the Plaintiff to the Assistant Engineer and Ex.B.16 is the reply letter dated 30.3.66 sent by the Engineer to the Plaintiff and on 30.6.65 the Engineer has sent Ex.B.17-Letter to the Plaintiff. 36.Added further, it is the evidence