Case: M/S National Building Construction Vs. State Of Maharashtra

consonance with the pleadings of the defendants in the written statement, specially in paragraph 5A of the written statement. The defendants? witness had clearly stated in his evidence that the rate of pitching as per the C.S.R. for the year 1981-82 was abnormal and was mentioned in square meters. According to the witness, the abnormality was pointed out to the Superintending Engineer and in view of the anomaly in the rate, there was a rectification of the mistake by the Government. It is stated that by the communication at Exh. 119, it was brought to the notice of the authorities that the C.S.R. rates for pitching for the year 1981-82 were wrongly quoted and the rate per cubic meter was Rs. 33.50 Ps. The plaintiff had been paid at the rate of Rs. 35.70 Ps. per cubic meter. The witness further deposed that the rate of Rs. 97.60 per cubic meter as claimed by the plaintiff had never reached at any point of time and the plaintiff was not entitled to claim at that rate only on the basis of the mistake in the C.S.R. for the year 1981-82. The finding on the first issue is recorded without considering the material evidence on record and without considering that there was a genuine mistake in the C.S.R. of the year 1981-82 so far as the item of pitching was concerned. It would also be necessary to refer to the document at Exh. 71A to deny the claim of the plaintiff towards pitching. It is necessary to reverse the finding of the trial Court on this issue and hold that the plaintiff would not be entitled to an amount of Rs.1,76,199/- towards pitching.? (emphasis supplied)10. In our opinion, the High Court was right, both on facts and in law, in rejecting the claim of the appellant in respect of pitching of stones, to the extent of Rs.1,76,199/-. We find that the finding of facts recorded by the High Court is in consonance with the pleading in the written statement and the oral and documentary evidences produced by the respondents (defendants) in that behalf. The appellant, however, relies on the observation made by the Trial Court that it was not open to the Superintending Engineer to modify the rates of CSR with retrospective effect. This argument does not commend us. The effect of typographical error in the CSR applicable for the financial year 1981-82, is not one of modification of the rates as such. Whereas, the effect of correcting the typographical error in the CSR rates is to restate the correct position as applicable for the relevant period and not one of modification of the rates, as contended. It is not disputed that in the previous financial year 1979-80, the rate prescribed in the CSR was Rs.27.60 per cubic metre. In the following financial year 1980-81, it was Rs.28.55 per cubic metre. It is, therefore, logical and rational to accept the stand taken by the respondents that the rates specified for pitching work in the year 1981-82, were erroneously mentioned in square metres which worked out @ Rs.80.33 per cubic metre. In the next financial year i.e. 1982-83, the rate prescribed for the same work was only Rs.46.65 per cubic metre. Thus, correcting the typographical error in the CSR rates was not an act of modification of those rates as such. That act cannot be construed as retrospective change introduced in the CSR by the respondents. The High Court has justly rejected this plea by giving an illustration that if the CSR rates were to be misprinted as Re.1 or Rs. 2 per cubic metre for the financial year 1981-82, the appellant would not have agreed to be bound by such rate. 11. Suffice it to observe that we find no error, much less any infirmity in the approach of the High Court in disallowing the claim of the appellant concerning pitching of stones to the extent of Rs.1,76,199/-. The view taken by the High Court, in our opinion, is just and proper, and a possible view. We find force in the argument of the respondents (defendants) that the Trial Court misled itself in misreading the pleading and discarding the legal evidence relied upon by the respondents (defendants) concerning Claim No.1. Further, the Trial Court has selectively referred to the deposition in the cross examination of DW1 and not analysed his evidence as a whole. Hence, no interference is warranted at the instance of the appellant in respect of Claim No.1. 12. Reverting to the Claim No.3 set up by the appellant regarding additional lead for water, we find that the Trial Court was swayed away by the fact that the appellant was required to transport water from some distance via Kaccha Road for which the appellant was entitled to such claim. The High Court in paragraph 21 of the impugned judgment, however, considered the said claim of the appellant with reference to the contract document. In that, Clause ?d? of tender Item No.8, pertaining to watering and mechanized compaction of earth work, clearly stated that the rates for earthwork raising are inclusive of watering and compaction at optimum moisture content. Further, in Clause ?d? of Item No.8, it has been made amply clear that no extra payment for these items would be given. The High Court held that the appellant having accepted the terms in the contract, which did not provide for any extra payment relating to lead for water, was not entitled to that claim. The High Court also took note of the document issued by the Executive Engineer dated 19th June, 1981 which also forms a part of record at Exh.-65A and noted that it reinforced the stand of the respondents that the appellant was not entitled to grant of the amount of Rs.80,000/- for additional lead for water. We find no infirmity in the view so taken by the High Court. The Claim of the appellant under this head is not supported by express terms of the contract document.

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

Explanation:
0[ds]9. Having perused the pleading in the written statement and the evidence produced by the respondents (defendants), the High Court, after analysing the same, concluded that there was obvious typographical error in the CSR rates pertaining to financial yearwhich was later on corrected, and gave benefit of that position to the respondents and came to hold that the appellant was not entitled to the claim amount of Rs.The High Court analysed the pleading as well as the oral and documentary evidences produced by the defendant to come to the said conclusion.In our opinion, the High Court was right, both on facts and in law, in rejecting the claim of the appellant in respect of pitching of stones, to the extent of Rs.We find that the finding of facts recorded by the High Court is in consonance with the pleading in the written statement and the oral and documentary evidences produced by the respondents (defendants) in that behalf. The appellant, however, relies on the observation made by the Trial Court that it was not open to the Superintending Engineer to modify the rates of CSR with retrospective effect. This argument does not commend us. The effect of typographical error in the CSR applicable for the financial yearis not one of modification of the rates as such. Whereas, the effect of correcting the typographical error in the CSR rates is to restate the correct position as applicable for the relevant period and not one of modification of the rates, as contended. It is not disputed that in the previous financial yearthe rate prescribed in the CSR was Rs.27.60 per cubic metre. In the following financial yearit was Rs.28.55 per cubic metre. It is, therefore, logical and rational to accept the stand taken by the respondents that the rates specified for pitching work in the yearwere erroneously mentioned in square metres which worked out @ Rs.80.33 per cubic metre. In the next financial year i.e.the rate prescribed for the same work was only Rs.46.65 per cubic metre. Thus, correcting the typographical error in the CSR rates was not an act of modification of those rates as such. That act cannot be construed as retrospective change introduced in the CSR by the respondents. The High Court has justly rejected this plea by giving an illustration that if the CSR rates were to be misprinted as Re.1 or Rs. 2 per cubic metre for the financial yearthe appellant would not have agreed to be bound by such rate.Suffice it to observe that we find no error, much less any infirmity in the approach of the High Court in disallowing the claim of the appellant concerning pitching of stones to the extent of Rs.The view taken by the High Court, in our opinion, is just and proper, and a possible view. We find force in the argument of the respondents (defendants) that the Trial Court misled itself in misreading the pleading and discarding the legal evidence relied upon by the respondents (defendants) concerning Claim No.1. Further, the Trial Court has selectively referred to the deposition in the cross examination of DW1 and not analysed his evidence as a whole. Hence, no interference is warranted at the instance of the appellant in respect of Claim No.1.Reverting to the Claim No.3 set up by the appellant regarding additional lead for water, we find that the Trial Court was swayed away by the fact that the appellant was required to transport water from some distance via Kaccha Road for which the appellant was entitled to such claim. The High Court in paragraph 21 of the impugned judgment, however, considered the said claim of the appellant with reference to the contract document. In that, Clause ?d? of tender Item No.8, pertaining to watering and mechanized compaction of earth work, clearly stated that the rates for earthwork raising are inclusive of watering and compaction at optimum moisture content. Further, in Clause ?d? of Item No.8, it has been made amply clear that no extra payment for these items would be given. The High Court held that the appellant having accepted the terms in the contract, which did not provide for any extra payment relating to lead for water, was not entitled to that claim. The High Court also took note of the document issued by the Executive Engineer dated 19th June, 1981 which also forms a part of record atand noted that it reinforced the stand of the respondents that the appellant was not entitled to grant of the amount of Rs.80,000/for additional lead for water. We find no infirmity in the view so taken by the High Court. The Claim of the appellant under this head is not supported by express terms of the contract document.