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

2. The appellant, a partnership firm engaged in civil construction works, had submitted a tender for work pertaining to construction of one Nishanghat Minor Irrigation Tank in pursuance of a notice issued by respondent No.1 – State of Maharashtra. After the appellant?s tender was approved and work order dated 21st December, 1978 was issued by the State in favour of the appellant, the parties executed an agreement at Nagpur. After completion of the contract work on 16th June, 1982, final bill was paid to the appellant on 22nd October, 1982, which the appellant disputed on the ground that it had performed extra work over and above the tendered work, for which payment was not included. Feeling aggrieved by the alleged shortfall in payment and unable to settle the dispute with the respondents, the appellant filed a suit against the respondents before the Court of 6th Joint Civil Judge (Senior Division), Nagpur being Special Civil Suit No.279 of 1985, inter alia seeking a decree for amounts due to it under the following heads ofClaim 1: Unpaid amounts arising out of difference inrates for work of excess stone revetment/pitching, amounting to Rs. 1,76,199.Claim 2: Unpaid amounts for difference in rates relating to excavation work, amounting to Rs.Claim 3: Unpaid amounts for extra lead for water works, amounting to Rs. 80,000/Claim 4: Unpaid amounts for extra lead for sand, amounting to Rs.Each of the above claims was specifically challenged by the respondents in their written statement. After considering the rival contentions and the evidence on record, the Trial Court passed a decree in favour of the appellant on 29th October, 1991, the operative part of which is reproducedSuit is decreed withDefendants do pay Rs. 4,98,769.87 to theThe decreetal amount to carry future interest @ 15% per annum from the date of filing of the suit till its actualDecree be drawn accordingly.The respondents preferred an appeal against the aforesaid decree passed by the Trial Court before the High Court of Bombay, Nagpur Bench, being First Appeal No.312 of 1992. Over the course of hearing, the learned Single Judge framed the following points forWhether the trial Court was justified in granting the claim of Rs.1,76,199/towardsWhether the plaintiff was entitled to an amount of Rs.90,165/for the excavation of the soft rock of theWhether the plaintiff was entitled to an amount of Rs.80,000/for additional lead forWhether the grant of compensation @ Rs.9,900/towards lead for sand was5. Ultimately, the High Court by its judgment and decree dated 1st September, 2009 partly allowed the respondents? appeal, modifying the decision of the Trial Court and reducing the decreetal amount asFor the reasons aforesaid, the first appeal is partly allowed. The judgment and decree passed by the 6th Joint Civil Judge (Senior Division), Nagpur on 29.10.1991 is hereby modified. It is held that the respondent plaintiff would not be entitled to claim an amount of Rs. 1,76,199/towards pitching an amount of Rs. 80,000/for additional lead of water. The findings recorded by the trial Court in regard to the entitlement of plaintiff to an amount of Rs. 90,165/for excavation of soft rock and an amount of Rs. 9900/towards lead of sand are hereby confirmed. The plaintiff respondent would, therefore, be entitled to only an amount of Rs. 1,00,065/with interest @ 15% per annum from the date of filing of the suit till its actualaccordingly. No order as toHigh Court, while partly allowing the appellant?s claims, viz. Claim 2 and Claim 4, struck off Claim 1 and Claim 3, having held that the said claims were granted by the Trial Court without considering the evidence on record. The High Court further held that while there was no dispute as to the work done by the appellant under this head of claim, the Government/C.S.R. rate at which such work was to be compensated was erroneously expressed in terms of square metres instead of cubic metres, resulting in confusion. The High Court came to hold that the respondents had produced evidence to show that this error had been rectified and, in fact, the appellant was paid at a rate higher than the rectified prescribed rate. The Court noted that despite this, the appellant was claiming payment under this head of claim at an exorbitant and abnormal rate, which was untenable. The High Court went on to hold that the Trial Court also erroneously granted the claim relating to extra lead for water (i.e. Claim 3). For, the agreement executed by the parties for the contract work clearly mentioned that the work done by the appellant under this head of claim would include watering and mechanized compaction of earth work and no extra payment towards lead for water would be payable. Further, the appellant was duly informed by the Executive Engineer, Minor Irrigation Division, Nagpur, that its claim relating to extra lead for water was not acceptable. Hence, such claim was rejected. The High Court, however, did not disturb the interest component as ordered by the Trial Court.

Reasoning:
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.