Case: Puran Lal Sah Vs. State Of U.P

2. The Appellant had submitted a tender to construct mile 3 of Nainital Bhowali Road at 13 per cent below the rates given in Schedule B to the Notice issued by the Government of the United Provinces on the 30th September, 1946. This tender was accepted and a contract was signed on 20th November 1946. It is alleged by the Appellant that the rates given in Schedule B were based on the calculation that stone required for the road construction work would be available at a distance of 26 Chains while as a matter of fact no stone was available within that distance. The Appellant had in fact to get stone from Gadhera and Bhumedar from a distance of 79 and ll0 chains respectively. It is his contention that by reason of the non-availability of the stone and the definite understanding and assurance given by the local authorities of the P. W. D. that higher rates would be given for the extra work done over and above the work provided in the contract he carried on the work. It was also alleged that during the construction work on the road very hard shale rock came in the way not originally provided for in the contract, as such he was entitled to get the costs for the work so done at the current rates from the P. W. D. which was not paid to him. In respect of these items of work done as also due to his having done the work by bringing stone from a longer distance than was given in the estimates the Appellant claimed Rs. 48,840- 0-0 due as balance together with interest by way of damages at 12% amounting to Rs. 17,582-0-0, making a total of Rs. 66,422-0-0. When this claim was rejected the Appellant gave notice under Section 80 of the C. P. C. and thereafter filed a suit for the above amount.3. The Defendant-Respondent resisted the suit and pleaded that no assurance was given to the Appellant by officers of the PWD as alleged, that the quantity of very hard shale shown in the plaint was incorrect and at any rate the contractor, under paragraph 5 of the special instructions must be prepared to execute the work at the original tender rate in excess of the given quantities of work upto 30% and if an increase in excess of 30 % is ordered over the work the contractor must intimate to the Engineer-in-charge in writing his willingness or refusal to do extra work at the original tendered rates. If he refuses to carry on at the original rates he is required to settle fresh rate for increased work over 30% before doing the work.4. On these averments the Trial Court held issues l, 2, 6 and 7 in favour of the .Appellant while issues 3, 4 and 5 were decided against him. In the result a decree for a sum of Rs. 20,495/- for extra lead plus Rupees 1663-14-0 for extra work done under the item very hard shale and Rupees 4,155/- interest by way of damages on Rs. 22,158-14-0 making a total of Rs. 26,313-14-0 was passed with interest at 3% per annum. In appeal the High Court reversed the decree holding that (1) the employment of the figure 26 chains in the estimate was for no other purpose than that of calculation and if knowing that the same was available within 26 chains it (PWD) worked out its estimates on that basis, it could not be held to have extended any assurance much less guarantee to the contractors that they would get stone within that distance; (2) the Plaintiff-Appellant performed the work required of him without exercising his right under paragraph 5 of the special instructions which gives the option to do the extra work in excess of 30% but if he refuses to do the extra work at the originally tendered rates he should settle fresh rates for increased work over 30% before doing the work which he failed to do. In view of these findings against the appellant the appeal of the respondent was allowed and the suit dismissed but in the special circumstances of the case left the parties to bear their respective costs in both the Courts.

Reasoning:
6. It is obvious from these clauses that the rates are given in Schedule B on the basis of certain plans and specifications. The person intending to tender for the work was required to examine this material and also inspect the site before tendering. These instructions were designed to make all those who were desirous of obtaining the contract responsible for their acts so that it cannot be said that any misrepresentation was made or they were misguided in any way. The contention of the learned Advocate for Appellant is that it was definitely stated in the estimates that stone was available at 26 Chains which representation was binding an the Respondents and if no stone was available within that distance he was entitled to claim higher rates if he had to get stone from places farther away. In fact the Appellant alleges that the Engineers assured him that he would be paid highermere fact that the estimates were prepared by the PWD) on the basis of the stone being available at 26 Chains which Respondents admitted as stated in the Judgment of Civil Judge, Nainital does not mean that there was any assurance or undertaking given that stone would be available at that place. In fact it is not denied that stone was available within the distance of 26 Chains but it was in the area belonging to the Cantonment, for the removal of which permission of the Cantonment authorities had to be taken. Evidently the contractor was not able to obtain that permission. In our view it was upto the contractor to have satisfied himself before entering into the contract that the Cantonment authorities would permit him to take stone from its jurisdiction just in the same way as permission will have to be taken from any private individual in whose land stone required for road building is found. If the contractor has failed successfully to negotiate with the owners of land from which he could bring stone it cannot be said that the estimate prepared by the PWD on the basis that the stone was available at 26 Chains was a statement which amounted to an assurance or constituted a condition of the contract.It is clear from this evidence that the Appellant before giving the tender inspected the site, went to the place where stone was said to be available and after satisfying himself that the stone was available he gave the tender. A perusal of the documentary evidence would also show that he actually commenced work after his request to allow him higher rate was rejected which was long after the time when under the contract he was required to start the work.It cannot therefore be said that the Appellant was in any way induced by any assurances given by the P. W. D. authorities that they would give a higher rate for the extra lead before he commenced work The case of the Appellant in these letters was that no stone was available within half a mile while in his deposition he gave a contrary version altogether.This letter seems to be a recommendatory letter by a subordinate to the higher officer but it does not in any way establish the right of the Appellant to obtain a higher rate, nor does the evidence justify this conclusion. In our view neither the terms and conditions of the contract nor the oral or documentary evidence justify the conclusion that the Appellant was entitled to any extrain our view is a far-fetched argument arid has no relation to the facts and circumstances of the case. Even assuming that the stand taken by the Appellant that the availability of stone at 26 Chains was a condition of the contract was justified, he had notwithstanding the rejection of his claim even before he started the work, acquiesced in the stand taken by the Respondents that he is not entitled to any higher rates, carried on and completed the contract as if there was no such condition. We, therefore, cannot understand the contention of the Appellants Advocate as to how the contract came to an end and who put an end to it. Even if at that stage the contract had been put an end to by the Respondents which is no ones case, as the Appellant had not started the work no question of quantum merit would arise. The principle of quantum meruit is rooted in English law under which there were certain procedural advantages in framing an action for compensation for work done. In order to avail of the remedy under quantum meruit, the original contract must have been discharged by the Defendant in such a way as to entitle the Plaintiff to regard himself as discharged from any further performance and he must have elected to do so. The remedy it may be noticed is however, not available to the party who breaks the contract even though he may have partially performed part of his obligation. This remedy by way of quantum meruit is restitutory that is it is a recompense for the value of the work done by the Plaintiff in order to restore him to the position which he would have been in if the contract had never been entered into. In this regard it is different to a claim for damages which is a compensatory remedy aimed at placing the injured party, as near as may be in the position which he would have been in, had the other party performed the contract.On the second question also the Appellant cannot succeed because under clause 12 of the contract Ex. Bl. the Plaintiff was bound to perform additional work which was required of him on the same terms and conditions on which he undertook to do the work for which he tendered. It appears that by a subsidiary contract entered into between the Appellant and the P. W. D. Ex B3 on the 12th April, 1946, the Appellant undertook to execute some additional work for the Department. The quantity of work which appellant actually performed was far in excess of what was mentioned in Ex. B3. The Appellant therefore claimed payment for the work done by him in excess of the quantity mentioned in the contract plus 30 per cent at the current rate as against the stipulated rates. It was submitted on behalf of the State of U. P. before the High Court that under clause 12 of the contract Ex. Bl and paragraph 5 of the special instructions the plaintiff was not entitled to any amount in excess of what he had already been paid. This contention was accepted because under the aforesaid clause 12 the con tractor was bound to perform ail additional work which was required of him on the same terms and conditions in which he undertook to do the maininstructions being part and parcel of the original contract Ex. B1 would govern the parties. As such the Appellant unless he gave notice under that paragraph that he is not prepared to do the extra work over the 30% at normal rates, he cannot claim anything other than at the rates mentioned in the contract, unless he had settled fresh rates for that extra work. There is no evidence nor is it claimed by the Appellant that he had given any notice as required under paragraph 5 of special instructions and since he did the work without fulfilling these requirements he is not entitled to claim any amounts at a higher rate for the extra work done.