Case: Konappa Rudrappa Nadgouda Vs. Vishwanath Reddy &amp; Anr

to Hudsons Building and Engineering Contracts. In one passage, Hudson regarded such a clause as in the nature of a repair clause. But Hudson was not dealing with the law of election when he was discussing a clause such as we have in this case. We have to interpret this clause in the context of election law. Now the contract must be said to subsist if a portion of it is required to be performed at any time, because so long as the contract has not been discharged, by full performance, it must be taken to subsist. Mr. Narasaraju contends that the phrase "contract for the execution of the work" shows that it is the execution of the original work which is contemplated and not any condition of guarantee for repair. In our opinion, this argument, however ingenious, is not acceptable because a similar point arose in the case to which we referred earlier. In Chaturbhuj Vithaldas Jasanis case 1954 SCR 817 = (AIR 1954 SC 236 ) (cit. sup.), Bose, J., dealt with a similar point in the following words:"It was argued that assuming that to be the case, then there were no longer any contracts for the "supply of goods" in existence but only an obligation arising under "the guarantee clause". We are unable to accept such a narrow construction. This term of the contract, whatever the parties may have chosen to call it, was a term in a contract for the supply of goods. When a contract consists of a number of terms and conditions each condition does not form a separate contract but is an item in the one contract of which it is a part. The consideration for each condition in a case like this is the consideration for the contract taken as a whole. It is not split up into several considerations apportioned between each term separately. But quite apart from that, the obligation, even under this term, was to supply fresh stocks for these three depots in exchange for the stocks which were returned and so even when regarded from that narrow angle it would be a contract for the supply of goods. It is true they are replacements but a contract to replace goods is still one for the supply of the goods which are sent as replacements."Applying these observations in the context of construction of buildings and roads, it is obvious that if some part is found defective and has to be done again, the contract of execution as such is still to be fully performed. It is possible to describe the action taken as one to repair the defect, but in essence it is a part of the contract of execution, because no execution can be said to be proper or complete till it is properly executed. Taking the fact that some portion of the original contracts remained to be performed with the fact that under the contracts the contractor was required not only to complete the original work but to repair defects or re-do something which he had not properly done, we think this matter must fall within Section 9A of the Representation of the People Act.This is not a case like the supply of a refrigerator which after giving service for some time goes out of order and something has to be done to replace a part which is defective. The analogy is not quite apposite. Here the building was completed very recently and the flooring had to be re-done and various other things were left unfinished and these had to be completed by the contractor. Similarly in relation to the road, although the surface was prepared and the road was in actual use, under the contract, mile and hectometer stones had to be fixed and certain other stones fixed at curves and boundaries. This was not done. The two contracts therefore were not fully performed and under clause 20 of the agreement, it was incumbent upon the contractor to complete this part of his obligation. In our opinion, the High Court was in error in holding that the contracts had been fully performed and therefore Section 9A did not apply.13. Mr. Narasaraju raises three legal points. The first is that under Article 299, the contract had to be signed by the Secretary to the Government whereas the contract was signed by the Executive Engineer. This point was also considered in Jasanis case, 1954 SCR 817 = (AIR 1954 SC 236 ) (cit sup.) and it was held that it did not go to save the bar of the election law to the candidature. Next it is argued that the section is applicable to a person whereas the contract was with a firm and therefore the first respondent was not barred from standing for the election. In our opinion, the High Court has taken the right view of the matter.The law requires that a candidate should not have any interest in any contract with Government and even a partner has an interest sufficient to attract the provisions of Section 9A. Lastly it is argued that the partnership itself had been dissolved. That would have no effect upon the relations between the first respondent and the Government. The first respondent could not by a private dissolution of the partnership escape his liability under the contract to the Government, and there was here no novation, because notice of the dissolution was not given to Government and the Government had not accepted Hampanna to whom the business was transferred in place of the firm. We view the transfer of the entire contracts to Hampanna with some suspicion.It appears that on the eve of the election, the first respondent who wished to contest the seat from Yadagiri, hurried through his contracts, manage to get a completion certificate which was not quite accurate, dissolved the partnership with a view to clear himself from all connections with the contracts so that he could stand for the election. In this effort, he has distinctly failed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. Now it is agreed on both sides that Items 1-7 were duly completed. The dispute is with regard to Items 8 to 12. Nomination to the Assembly had to be filed on 20th January, 1967 at the latest. 21st January was fixed for scrutiny of the nomination papers and the election was to follow in the month of February. On 18th January, 1967, the first respondent obtained a certificate (Ex. P-1) that his contracts had been fully performed. He approached the Executive Engineer on the 19th. The Executive Engineer was busy throughout the day. The respondent therefore asked his Personal Assistant (who incidentally is a gazetted officer of the rank of an Assistant Engineer) to give him the necessary certificate. The Personal Assistant telephoned to the Assistant Engineers in charge and on their statement that the work had been physically completed, he granted the certificates to that effect. It appears that the election petitioner was also busy in his turn. He obtained cancellation of these certificates from the Executive Engineer on the following day. The Executive Engineer asked the Assistant Engineers to state whether the work had been completed and the Assistant Engineers thereupon gave the certificate that Items 8-12 of the first contract were not complete. We have so far described the contract dealing with thePersonal Assistant explained that he had issued the certificates because they were urgently required for election purposes and because the Assistant Engineer under whose supervision the construction of the road was taking place had reported completion of the work. The Executive Engineer, however, verified this again from the Assistant Engineer and found that Item 8-12 remained to be completed. Mr. Narasaraju complains of the conduct of the Executive Engineer by saying that he did not visit the spot to see for himself whether the completion had been made or not. He states that in Ex. P-11 in which the completion was reported on 18th January, 1967, there in no mention of Items 8-12 and it is different in language from Ex. C-1 in which Items 8-12 are shown not to have been completed. We do not think that anything turns on that. The Officers of the Public Works Department have come to the witness box and have maintained that these items were in fact not completed before the election took place. We are satisfied that although the construction of the road was complete, the additional items which are described as "miscellaneous" in the contract still remained to be completed. What bearing this will have upon the election of the first respondent is something which we shall consider after we have analysed the evidence with regard to the hospital.In both the contracts, there was a condition that for a period of three months in one and for a period of one year in the other, the contractor would make due repairs to all the defective parts in the execution of the contract. The question is whether the contract can be said to be subsisting in view of this clause. Both sides referred us to Hudsons Building and Engineering Contracts. In one passage, Hudson regarded such a clause as in the nature of a repair clause. But Hudson was not dealing with the law of election when he was discussing a clause such as we have in this case. We have to interpret this clause in the context of election law. Now the contract must be said to subsist if a portion of it is required to be performed at any time, because so long as the contract has not been discharged, by full performance, it must be taken to subsist. Mr. Narasaraju contends that the phrase "contract for the execution of the work" shows that it is the execution of the original work which is contemplated and not any condition of guarantee for repair. In our opinion, this argument, however ingenious, is not acceptable because a similar point arose in the case to which we referredthese observations in the context of construction of buildings and roads, it is obvious that if some part is found defective and has to be done again, the contract of execution as such is still to be fully performed. It is possible to describe the action taken as one to repair the defect, but in essence it is a part of the contract of execution, because no execution can be said to be proper or complete till it is properly executed. Taking the fact that some portion of the original contracts remained to be performed with the fact that under the contracts the contractor was required not only to complete the original work but to repair defects or re-do something which he had not properly done, we think this matter must fall within Section 9A of the Representation of the People Act.This is not a case like the supply of a refrigerator which after giving service for some time goes out of order and something has to be done to replace a part which is defective. The analogy is not quite apposite. Here the building was completed very recently and the flooring had to be re-done and various other things were left unfinished and these had to be completed by the contractor. Similarly in relation to the road, although the surface was prepared and the road was in actual use, under the contract, mile and hectometer stones had to be fixed and certain other stones fixed at curves and boundaries. This was not done. The two contracts therefore were not fully performed and under clause 20 of the agreement, it was incumbent upon the contractor to complete this part of his obligation. In our opinion, the High Court was in error in holding that the contracts had been fully performed and therefore Section 9A did not apply.