Case: Atma Das Vs. Suriya Prasad

the tools supplied to him were returned to pay the cost of the tools also. The appellant was called upon to deposit the amount demanded and the letter proceeded to state : "Further more, you are hereby informed that you have not to proceed with the work any more." By letter, dated June 27, 1958, the Superintendent, Department of Archaeology, addressed a memorandum to the appellant in continuation of the letter, dated August 13, 1958, reiterating that the cost of cement and stones may be reimbursed, and the tools may be returned. The appellant was informed that he "will be paid for the cost of R.C.C. work done by him", but that he was bound to rectify the defects in the work executed by him, as pointed out at the site. 9. By letter, dated July 19, 1959, the appellant wrote to the Superintendent, Department of Archaeology, that he was willing to carry out the orders regarding the repairs to the Burj, and that arrangements may be made to send the "work in-charge" at the site so that the work may be done according to his instructions. He also stated that he had never refused to comply with the orders. By letter, dated September 27, 1959, the appellant again reiterated his desire to rectify the defects pointed out to him. 10. It appears, however, that nothing concrete was done, and on April 12, 1961, the appellants lawyer addressed a letter to the Director-General, Department of Archaeology, asserting that the appellant had completed his "part of the work almost entirely" and that he was shown certain defects which he had also removed, but when the appellant demanded payment for the work done the Department asked him to do certain other things which were not to be done by him. He denied that the work done by him was defective. He also stated that if the defects were not intimated to him in writing and their photographs were not supplied within a month from the receipt of the letter, it will be presumed that there were no defects in the work done and that he will be entitled to receive the full amount for the work done. 11. This correspondence clearly evidences an intention to treat the original contract as determined. The appellant was told that the amount payable to him if he returned the building materials and the tools supplied to him, and rectified the defects pointed. The letters do not evidence a subsisting contract; they emphasise that the contract was treated as determined. 12. After April 12, 1961, there is on the record no correspondence between the appellant and the Government. The Government had claimed damages against the appellant for defective work executed by him and for return of certain materials supplied and the value of the tools and had called upon the appellant to carry out the repairs. The appellants claim was that he was entitled to payment for the work done by him, and that he had carried out the repairs. The security deposit had not been returned to the appellant, nor has he been paid the amount claimed by him. The amount alleged to be due by the appellant on account of defective workmanship and for the value of the materials supplied to him has also not been demanded by the Government. Failure to settle the respective claims does not evidence an intention to keep the original contract as subsisting. For more than 5 years 8 months the appellant and the Government of India have not taken steps for settlement of their respective claims. The alience was evidence of [acquiescence in the abandonment of the contract, an not of a subsisting contract. Even if the demand that the defects pointed out in the work executed by the appellant be repaired and the offer made by the appellant to carry out the repairs establish a contractual relation, inaction for nearly six years on the part of the Government and the appellant is evidence of abandonment of the contractual relation. 13. The learned Trial judge observed in his report in Paragraph 33 that : "No paper whatsoever, either from Bhopal Office or Delhi Office has been produced on record by the parties to this litigation showing that the Government expressly abandoned this part of the work at any time after the lawyers notice, dated April 12, 1961 till Shri Atma Das filed his nomination paper on January 19, 1967. So there was no express abandonment on the part of the Government as far as this part of the incomplete work is concerned. But the position seems to have been altered because of the attendant circumstances, conduct of the parties and inordinate delay during which neither party insisted on the performance of this part of the incomplete work." The learned Judge concluded : "Accordingly where, as here, neither party has insisted on the performance of this part of the work, namely, the rectification of the defects for more than 5 1/4 years which is undoubtedly an inordinate length of time, it is reasonable to infer that the parties, i.e., the Government and Shri Atma Das have mutually abandoned its performance before Shri Atma Das filed his nomination paper." The two letters, dated July 23, 1958 and August 13, 1958, clearly evince an intention on the part of the Government to determine the contract, and the demand for rectification of the defects did not evidence an intention either to keep the original contract outstanding or to enter into a fresh contract for carrying out the repairs in the work already executed. Even if insistence upon rectification of the defects be treated as an offer, and the willingness of the appellant to carry out the repairs he treated as acceptance of the offer, studied inaction for nearly six years by the appellant as well as by the Government in our judgment leads to an inference of abandonment. We accordingly agree with the finding recorded by the High Court on the second issue.

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

Explanation:
1[ds]4. Under the terms of the contract the appellant had undertaken to raise the height of the Burj to 46 feet. It is common ground that he did not raise the height of the Burj above 35 feet. The authorities were dissatisfied with the work done by him till the end of March 1956. Work was inspected by the Archaeological Engineer in 1957 and was found to be "defective, unsatisfactory and incomplete". The Archaeological Engineer made adverse remarks against the appellant and further work was discontinued. The Director-General visited the site in July 1958 and found the work incomplete, unsatisfactory and defective. He remarked that the contractor may "be categorically told that he is not to proceed with the work", and that "the remaining work which may include the heightening of the Burj by not more than two feet, filling up its interior and rendering its top water-tight may be done by departmental labour". Accordingly the appellant was informed by letter, dated August 13, 1958, that he was "not to proceed with the work any more". The appellant was clearly informed that he was not to raise the height of the Burj up to 46 feet as originally agreed : he was only asked to rectify the defects in the construction work executed by him. This was unmistakable evidence of determination of the contract10. It appears, however, that nothing concrete was done, and on April 12, 1961, the appellants lawyer addressed a letter to the Director-General, Department of Archaeology, asserting that the appellant had completed his "part of the work almost entirely" and that he was shown certain defects which he had also removed, but when the appellant demanded payment for the work done the Department asked him to do certain other things which were not to be done by him. He denied that the work done by him was defective. He also stated that if the defects were not intimated to him in writing and their photographs were not supplied within a month from the receipt of the letter, it will be presumed that there were no defects in the work done and that he will be entitled to receive the full amount for the work done11. This correspondence clearly evidences an intention to treat the original contract as determined. The appellant was told that the amount payable to him if he returned the building materials and the tools supplied to him, and rectified the defects pointed. The letters do not evidence a subsisting contract; they emphasise that the contract was treated as determined12. After April 12, 1961, there is on the record no correspondence between the appellant and the Government. The Government had claimed damages against the appellant for defective work executed by him and for return of certain materials supplied and the value of the tools and had called upon the appellant to carry out the repairs. The appellants claim was that he was entitled to payment for the work done by him, and that he had carried out the repairs. The security deposit had not been returned to the appellant, nor has he been paid the amount claimed by him. The amount alleged to be due by the appellant on account of defective workmanship and for the value of the materials supplied to him has also not been demanded by the Government. Failure to settle the respective claims does not evidence an intention to keep the original contract as subsisting. For more than 5 years 8 months the appellant and the Government of India have not taken steps for settlement of their respective claims. The alience was evidence of [acquiescence in the abandonment of the contract, an not of a subsisting contract. Even if the demand that the defects pointed out in the work executed by the appellant be repaired and the offer made by the appellant to carry out the repairs establish a contractual relation, inaction for nearly six years on the part of the Government and the appellant is evidence of abandonment of the contractual relationThe two letters, dated July 23, 1958 and August 13, 1958, clearly evince an intention on the part of the Government to determine the contract, and the demand for rectification of the defects did not evidence an intention either to keep the original contract outstanding or to enter into a fresh contract for carrying out the repairs in the work already executed. Even if insistence upon rectification of the defects be treated as an offer, and the willingness of the appellant to carry out the repairs he treated as acceptance of the offer, studied inaction for nearly six years by the appellant as well as by the Government in our judgment leads to an inference of abandonment. We accordingly agree with the finding recorded by the High Court on the second issue.