State of Gujarat vs Gangji Ramji

M.D. Shah, J.—Both the First Appeal No. 526 of 1987 filed by the original defendant - State and the cross appeal being First Appeal No. 570 of 1988 filed by the original plaintiff-claimant challenge the impugned judgment and decree dated 29-12-1986 passed by the 2nd Joint Civil Judge (C.D.), Bhuj at Kachchh, in Special Civil Suit No. 80 of 1983 whereby the suit of the plaintiff was partly allowed entitling the plaintiff to recover Rs. 5,89,074=30 with proportionate costs and interest @ 6% p.a. from the defendant.

As there are identical facts involving common question of law on the basis of which impugned judgment and decree has been challenged, I propose to decide these First Appeals by this common judgment.

The facts of the plaintiff in brief are that an agreement was entered into between the plaintiff and the defendant for construction of Mathal Dam under Mathal Irrigation Scheme in pursuance of acceptance of tender submitted by the plaintiff. However, as the stone of quarry situated 3 km. away from the site was found to be unfit, plaintiff was asked to use the stone of Village Maru, Taluka Nakhatrana situated 19 kms. away from the site as it was found to be fit and it was told that needful would be done in the final bill. The plaintiff therefore requested that extra expenses incurred would have to be paid by the defendant. The Officers of the defendant assured that after the work was over, extra amount would be paid to the plaintiff. However, when the final bill was prepared by the plaintiff upon completion of the work, Officers of the defendant were not passing the final bill. Since the claim amount was not being paid, the plaintiff filed the present suit after serving a notice u/s 80 of the Code of Civil Procedure. The suit was resisted by the defendant vide written statement at Ex.12 contending inter alia that no map or any document has been produced by the plaintiff to show that the Maru quarry is situated at 19 km. away from the site. It was further contended that the plaintiff did not raise any objection against the terms and conditions mentioned in the acceptance order and since the demands are not in accordance with the condition of the tender, the plaintiff was not entitled to claim any extra expenses. The learned Judge, after hearing the learned Counsel appearing for the respective parties and on appreciation of evidence decreed the suit against the defendant. Hence, the present appeal by the original defendant.

I have heard the learned AGP, Mr. N.J. Shah for the original defendant-State and learned Counsel, Mr. J.R. Nanavati for the original plaintiff.

Mr. N.J. Shah, learned AGP for the State, submitted that the impugned judgment and decree is contrary to law and evidence on record. He further submitted that the plaintiff ought to have checked as to what quality of quarry would be available from which place and having not done so and having accepted the terms and conditions of the contract, the plaintiff cannot raise any dispute about the extra expenses incurred for bringing the stones of the quality prescribed from a distant place at a later stage. He also submitted that the trial Court failed to consider these aspects and hence, the impugned judgment and decree deserve to be quashed and set aside.

Learned Counsel, Mr. J.R. Nanavati, on the other hand, submitted that the trial Court ought to have appreciated that the suit claim was in respect of extra work done in addition to the contract work and hence, the trial court erred in interpreting condition No. 14 of the tender and in holding that having regard to the said term, the plaintiff was not entitled to award interest @ 18% p.a. in view of the fact that Ex.19 did not provide for condition relating to interest.

This Court has gone through the judgment and decree of the trial court and also the oral as well as documentary evidence shown to me by the parties.

It is to be noted that terms and conditions of the contract agreement stipulated that the contractor shall be entitled to compensation on account of failure of the quarry to supply the required materials and the contractor should do his own prospecting stones of sound, hard and durable quality. It is clear from the record that the stones of the Village situated 3.5 km away from the site were found to be unfit on laboratory test and hence, the plaintiff had to use the stones brought from the quarry of Village Maru situated at a distance of 14.5 km. from the site. Hence, as per the specific terms of the contract agreement, the plaintiff would be entitled to get amount of compensation for bringing the quality stones from the quarry of Village Maru. On an appreciation of the entire oral as well as documentary evidence, the court below held that the plaintiff was entitled to receive an amount of Rs. 5,89,074=30 as compensation from the defendant with running interest @ 6% p.a. from the date of the suit till realization. Said findings appear to this Court to be just, legal and proper and hence, they are not required to be interfered with in this appeal. Both the learned AGP for the defendant-State as well as the learned Counsel for the plaintiff-claimant could not point out any illegality or irregularity in the findings arrived at by the court below. Hence, both the appeals deserve to be dismissed.

Both the appeals are accordingly dismissed.