Dismissed

State of A.P. v. G. Damodar Naidu

Andhra Pradesh HC12 Dec 2023AS/3407/2004

Case brief

AI extract

What is this about?

The High Court dismissed an appeal by a contractor challenging a trial Court decree in a suit for recovery of damages and unpaid work value. The Court upheld the lower judgment, finding the contractor failed to prove machinery idle charges but was entitled to payment for work done and interest.

What did the court decide?

Appeal dismissed; trial Court decree confirming payment of Rs. 2,65,743/- with interest and rejecting idle machinery charges upheld.

State of A.P. Vs G. Damodar Naidu — Contract and Commercial Disputes | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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APPEAL SUIT No.3407 of 2004

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JUDGMENT:

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This regular appeal under Section 96 Code of Civil Procedure (hereinafter referred to as ‘CPC’) is directed against the decree and judgment in O.S.No.18 of 1998 dated 31.03.2004 on the file of the Court of learned I Additional District Judge, Nellore.

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The defendant, before the trial Court, is the appellant. The respondent herein is the plaintiff.

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The respondent instituted the suit against appellant for recovery of an amount of Rs.5,83,261-28 ps. together with subsequent interest at 24% p.a. on Rs.3,67,293/- from the date of the suit till the date of realization.

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Before adverting to the material and evidence on record and nature of findings in the judgment of the trial Court, it is necessary to scan through the case pleaded by the parties in their respective pleadings.

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The case of the respondent/plaintiff in brief in the plaint was as follows:

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(i) The respondent being contractor entered into an agreement dated 07.09.1993 with the State of Andhra

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Pradesh represented by the Superintending Engineer, Somasila Project Circle, Nellore for execution of work of “removal of earth deposits and providing lining in between KM 57.925 and KM 58.327 (M 36.0.0 to 36.2.00) of Kavali Canal in the foreshore of Gattupalli Tank” and the respondent had to complete the work within twelve months from the date of agreement. (ii) Soon after the execution of said agreement, the respondent made all necessary arrangement to complete the working within the time stipulated and invested large amounts to import labour, machinery and equipment and maintained the same to complete the said work. However, the work could not be completed within the period due to several delays, defaults and breaches of contract committed by the Department. As a result, he sustained heavy loss and his business was badly effected.

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(iii) The defaults and breaches of contract committed

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by the Department are that:

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a. as per agreement, the respondent is required to deposit the canal, excavate the original bed in fissured and fractured rock and boulders requiring blasting, providing lining to the bed of the canal with cement concrete using 60% of 40 mm and 40% of 20 mm hard broken granite mental of 20 CM thick and to construct side walls for 1(one) M height with cement concrete using 40 mm size hard broken metal.

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b. Immediately after execution of the agreement, the respondent got the jungle cleared on either side of canal to facilitate stocking of materials and requested the Section Officer and Deputy Executive Engineer to record and check measure the pre-levels to enable him to start desilting. He was told by them that the estimate was prepared with the levels taken recently;

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that the levels would be taken as pre-levels and the

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work may commence immediately.

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c. Believing their words, the respondent commenced desilting of canal and arranged for collecting of sand and metal required for bed lining and side walls by giving advances to the quarry contractors etc. A quality of 500 cum of sand, 80 cum of 20 mm HBG metal, 170 cum of 40 mm HBG metal and 250 cum of 40 mm HB metal was got collected at the work site. Besides the construction material, the respondent brought machinery and centering equipment to the work site with a view to execute the work as per the rate of progress given in the agreement.

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d. The plaintiff got the silt removed in the canal for a

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length of 155 M i.e., from KM 57.925 to KM 58.080. After removal of the silt, the bed cutting was also carried out to an average depth of 0.3 M.

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e. As per agreement, cement required for the work is to be supplied by the department and the cost thereof is to be recovered from the bills of the contractor. The Department supplied 40 tons of cement. The respondent started bed lining and constructing of side walls. The work was in full swing. The bed lining and the side walls were completed to a length of 125 M (from KM 57.925 to KM 58.050) with the 40 tons of cement supplied by the Department. The Department failed to supply further quantity of cement and therefore, the work of bed concrete and construction of side walls had to be suspended. The respondent was compelled to keep the machinery and equipment idle. The respondent requested the Department to supply cement to proceed with the further work. But the Department allowed water into the canal without any notice. The Department did not allow the respondent to

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execute the work even for two (2) months period after execution of agreement.

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f. Because of the failure of the Department in supplying cement and letting water into the canal, the respondent could not utilize fully the construction materials collected at the site. As a result, the machinery and centering equipment brought to the work site had to be kept idle. The respondent represented several times to the Field Officers to stop the water supply into canal even after Khariff season. But they continued to allow the water into canal till 15.07.1994. The balance quantity of sand was washed

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away due to rains and floods that occurred in November, 1993. The canal bed which was cleared earlier was silted again. The respondent incurred heavy loss due to payment of idle charges to the machinery and centering equipment and washing away of the balance quantity of sand available at the work site. The

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respondent is entitled to reimbursement of the expenditure incurred by him and the Department also delayed in releasing the payment of the first and part bill amount.

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g. The plaintiff resumed the work in July 1994 after the water supply into canal was stopped. The canal was again desilted from KM 58.050 to KM 58.327. The F&F rock required blasting was also excavated and removed from the bed in the balance length of the reach. Construction materials required for laying the bed lining and for construction of side walls were also collected. The Department supplied another 40 tons of cement when the work was resumed. The plaintiff had laid bed concrete and constructed side walls from KM 58.050 to KM 58.065 and from KM 58.080 to KM 58.190 with the 40 tons of cement by 15.09.1994. Bed lining and construction of side walls was not taken up in the reach of KM 58.065 to KM 58.080 as per the

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instructions of the Field Officers to facilitate verification of the work done by the respondent by the higher officials.

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h. The request for supply of further quantity of cement was complied with only on 27.09.1994. For want of cement, the respondent could not execute any further work and had to keep the machinery and equipment idle from 16.07.1994 to 27.09.1994 incurring idle charges. Meagre quantity of 10 tons of cement supplied on 27.09.1994 was exhausted by 30.09.1994. The Department again supplied 20 tons of cement on 03.10.1994.

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i. By the time water was let into the canal on 31.10.1994, the respondent had completed concrete bed lining upto KM 58.255 and side walls upto KM 58.240. The canal continued to draw water upto 25.04.1995. The bed of the canal which was cleared upto KM 58.327 was again silted up and the

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construction materials stocked on the bank were washed away due to heavy rains in November, 1994. The respondent incurred heavy loss in this behalf and he is entitled for reimbursement of the expenditure incurred on idle charges for machinery and equipment and cost of the materials washed away.

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h. The respondent resumed the work on 27.04.1995, bailed out water, cleared the canal bed, collected afresh the construction materials required for bed lining and constructions of side walls. The work was in progress. On account of cyclone from 06.05.1995 to 08.05.1995, there were heavy rains in the locality causing floods and due to which, the canal bank was breached at KM 58.060 and caused heavy damage. The oil engines deployed on the work for baling out water fell into the canal and damaged beyond repair. The centering equipment like iron sheets and casuarina bellies were washed away. The sand and metal collected for

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completion of work were also washed away. The plaintiff, thus, sustained heavy loss.

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j. The Department did not close the said breach caused to the canal at KM 58.060. Unless the breaches are closed, further work cannot be done in the canal bed. The respondent could not therefore continue further execution from May, 1995.

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k. However, the Executive Engineer, without appreciating the situation existing at site had chosen to send letters requiring the respondent to resume the work. The Executive Engineer finally determined the contract on 30.09.1995 under Clause 60(a) of A.P.S.S. purporting to forfeit the deposit amounts without any previous notice vide Executive Engineer’s letter dated 30.09.1995. The said action of the Executive Engineer is unjust and illegal. The Department is bound to release the said amounts to the contractor.

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l. The respondent was subjected to the severe loss for no fault on him. Because of breaches committed by the Department by not supplying the cement required and release of water into the canal without notice, the respondent is entitled for payment of the claim of Rs.86,500/- towards loss sustained for keeping the machinery and centering equipment idles for periods 31.10.1993 to 15.07.1994 and 16.06.1994 to 27.09.1994 and Rs.15,000/- towards loss sustained due to washing away of 200 cum of sand. A sum of Rs.1,06,478/- is due and payable to the respondent for the work done.

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m. The Department, while making part payment for the work done by the respondent paid only at part rates, retaining with them a portion of the rate payable to the respondent as per the agreement for all the items executed and recorded the part bill. For which, a sum of Rs.8,830/- is due and payable to the plaintiff.

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The appellant is liable to refund the original security deposit amount of Rs.16,730/- and further security deposit of Rs.39,599/- aggregating to Rs.56,329/-. The respondent also claiming Rs.94,106/- towards the loss of overhead.

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n. When the respondent issued a claim notice to the Superintendent Engineer, he did not consider the said claims. Hence, the respondent got issued statutory notice dated 31.05.1997 under Section 80 CPC addressed to the District Collector, Nellore. As the notice claims were not settled by the appellant, the respondent is obliged to file the suit for recovery of amount.

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The appellant/defendant denying the allegations in the plaint while admitting the execution of said agreement and terms thereon and contending in the written statement as follows:

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(i) The pre-measurements for clearing light jungle on either side of banks of canal were recorded and the same was accepted by the respondent. The exact quantity of construction material collected by the respondent could not be determined since they were not measured because the contract rate is exclusively for finished item of work only, but not for the materials collected at the work site and he has to procure the men, materials and machinery for execution of work.

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(ii) The respondent has removed the silt from KM 57.925 to KM 58.075 i.e., for a length of 150 M only and cutting done to a depth of 0.20 M for foundation under side walls and 0.10 M depth in the canal bed portion for providing lining as against 0.30 M depth. The measurements relating to the silt removal were recorded in M-Book on 20.09.1993 and the measurements relating to the canal bed cutting done by him were also recorded in M-Book on 25.09.1993 and 01.10.1993 and the respondent accepted the said measurements.

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(iii) The Department had issued a quantum of 20 Mts of cement, vide U.S.R.No.38, dated 24.09.1993, and 20 Mts, vide U.S.R.No.42, dated 04.11.1993. After handing over of the site, the respondent had proceeded ahead with the execution of the work upto 25.11.1993, which shows that the respondent has executed the work for a period of two months eighteen days and thereafter only water was let out into the canal to save the standing crop. The release of water into the canal was firmly informed to the respondent well in advance to take precautionary measures to safeguard the material if any.

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(iv) The respondent has completed the canal bed lining from KM 57.925 to KM 58.050 covering a length of 125 M only by 30.10.1993 and the respondent had laid the concrete mix under side walls in the said reach and both the measurements were recorded in M-Book and the respondent signed without any protest. The respondent had laid the concrete for side walls upto 25.11.1993. The connected measurements were recorded in M-Book and

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the plaintiff has furnished signatures without any protest. The respondent suspended the work from the end of 11/93 and resumed the work only in 7/94. Neither the plaintiff has kept any machinery at site nor the Department asked the respondent to do so. Since the water was released into the canal for supply of water to the standing crop, the Department did not supply any cement to the respondent for the balance work during the period from 01.12.1993 to 31.05.1994. The Department

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had supplied cement to the tune of 20 M.Tons on 26.05.1994 and 20 M.Tons on 01.06.1994 which were signed in token of receipt of the same by the respondent. Further, there is no precedent to issue cement in bulk quantity when the water is flowing in the canal.

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(v) As per Item Nos.5, 6 and 9 of the additional conditions of the agreement, the respondent should arrange for approach roads, bailing out water, protection to the work in progress, protection of works already completed, safety measures for men and material all

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precautionary steps to protect the works due to rain or floods or slipping and all the arrangements so required should be carried out and maintained at the costs of the respondent and no separate or additional payment is admissible. In unavoidable cases of delay, a suitable extension of time be granted to the contractor for the completion of work. Hence, the respondent is personally held responsible for any damage, loss of idle charges etc., if any actually caused.

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(vi) The quantity of 40 M.Tons of cement was issued to the respondent on 26.05.1994 and 01.06.1994 consequent to stopping of water to the canal by 15.05.1994. But the respondent did not take any steps or shown any interest in resuming the work immediately after the closure of water into the canal and he had resumed the work only after 08.07.1994 i.e., after a lapse of 15 days. The respondent had actually desilted the canal in the reach from KM 58.050 to KM 58.250 and F & F work was excavated in between KM 58.075 to KM 58.250

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only and the same were recorded in M-Book. Similarly,

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the measurements relating to earth work done for foundations under side walls under bed lining were also recorded in M-Book. Although the respondent laid the concrete for side walls by 15.09.1994, this being concrete work curing is must for 21 days and it is the procedure to record the measurement after the completion of the curing period.

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(vii) A notice was issued to the respondent on 30.08.1994 for slow progress of work and a fine of Rs.200/- was imposed on him. Deputy Executive Engineer in his letter No.130 M, dated 07.10.1994 had addressed to the respondent requesting him to resume the balance to work and complete the same in all respects by 31.10.1994 duly providing lining in the first instance in left over gap portion of 25 M in the reach from KM 58.050 to 58.075. It was made clear that he will be held responsible if any further damage is likely to occur for the

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work already executed by him, if immediate action is not taken to complete the balance work.

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(viii) A quantity of 10 M.Tons of cement and 17.75 M.Tons of cement was also issued on 27.07.1994 and 03.10.1994 for completing the balance work. Gap of 25 M has been left over by the respondent of his own accord and no field officer has issued any instructions. The total quantity of cement issued to the respondent at different stages through different U.S.Rs. works out to 107.75 M.Tons, while the quantity utilized for the work upto 23.10.1994 i.e., upto L.S.II and part-bill comes to only 89.35 Mts and therefore, a balance quantity of 18.40 M.Tons still with the respondent.

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(ix) The water was let out into canal for standing crop from 01.01.1995 below Chinakaraka Reservoir and allowed to be continued upto 30.04.1995. There was sufficient time left over without water in the canal from 24.10.1994 to 31.12.1994, during said period the respondent could have completed the balance work. He

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had actually cleared the silt in canal upto KM 58.250, but not upto 58.327 which was recorded by the Section Officer in M-Book. The respondent did not resume the balance work in the reach from KM 58.250 to KM 58.327. No materials were washed away due to rains in November 1994. Even if any materials are washed away, the Department will not be held responsible for such damages. Deputy Executive Engineer, vide letter dated 15.06.1995, asked the plaintiff to resume the balance work in the reaches from KM 58.050 to KM 58.075 and from KM 58.250 to KM 58.327 and complete the work immediately. If the work was actually resumed on 27.10.1994, the balance work could have been completed before 31.12.1994 duly utilizing the balance quantity of 18.40 M.Tons cement left over with him since 23.10.1994. (x) In the first spell, the contractor had started the work on 07.09.1993 and executed upto 25.11.1993. The time of execution for the first spell is from 07.9.1993 to 25.11.1993, it works to 80 days L.S. I and part bill

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measurements were recorded on 23.10.1994. Water was released in the canal from 01.01.1995 and therefore, the time left over in the second spell from 01.06.1994 to 31.12.1994 works out to 214 days. The quantity of 18-40 Mts of cement was left over with the respondent for completing the balance work.

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(xi) Again in the third spell, there was sufficient time left over for the respondent from 01.05.1995 to 30.09.1995 for completing the works which works out to 153 days and in all 447 days, more than agreement period of 12 months. The respondent did not turn up to resume the balance work inspite of notice dated 15.06.1995. Even though sufficient cement was available with him, he kept silent for 108 days without giving any

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reply to the Department. The Department found it impossible to get it work done by the respondent. Hence, the Department was constrained to terminate the contract, vide letter dated 30.09.1995, duly forfeiting the E.M.D., F.S.D. and the value of work executed by him and

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not paid to him by the Department under Clause 60(a) P.S. to APSS.

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(xii) The respondent is not entitled to any interest as alleged in the plaint. There is no privity of contract between appellant and respondent with regard to payment of interest. Hence, the suit is liable to be dismissed with costs.

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On these pleadings, the trial Court settled the following issues for trial:

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“1. Whether the defendant and the concerned authorities under it committed breach of the agreement without supplying cement as agreed upon to the plaintiff and by allowing water into the canal in violation of the agreement and other breaches mentioned in the plaint?

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2.Whether the plaintiff suffered losses mentioned by him under Claims 1 to 5 recited in the plaint?

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3.Whether the plaintiff is entitled to the sum of Rs.3,67,293/- for damages?

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4.Whether the plaintiff is entitled to interest and whether 24% p.a. interest is reasonable? and

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5.To what relief?”

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At the trial, on behalf of the respondent/plaintiff, P.W.1

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was examined while relying on Exs.A.1 to A.11 in support of his contentions. On behalf of the appellant/defendant, D.Ws.1 to 3 were examined and got marked Exs.B.1, B.1(a), B.1(b), B.2 and B.3.

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Basing on the material and evidence, trial Court came to conclusion that the work was delayed on account of nonsupply of cement by the Department and that allowing the water into the canal without prior notice and due to unprecedented rain on which the respondent had no control and thus, partly decreed the suit, while rejecting the claim towards idle charges of machinery and equipment.

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It is against this decree and judgment, the appellant/defendant preferred this appeal.

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Heard learned Government Pleader for Appeals appearing for the appellant/defendant and Smt.M.L.Neelima, learned counsel for the respondent/plaintiff.

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For the sake of convenience, the parties hereinafter referred to as they arrayed before the trial Court.

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It is against this backdrop, the following points, which arise for consideration now:

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Whether the decree and judgment passed by the trial Court is liable to be set aside, if so, to what extent?

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14. POINT :

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The main point focused by the learned Government Pleader appearing for the appellants is that the time stipulated in the agreement for completion of work is twelve (12) months and the site was handed over to the plaintiff on 07.09.1993. The premeasurements for clearing the light jungle on either side of banks of canal were recorded and the same was accepted by the plaintiff without offering any protest from his side. Now he cannot turn around that the premeasurements for clearing the jungle were not taken and that the same is incorrect.

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The learned Government Pleader further submits that no doubt the plaintiff has collected some quantity of construction materials, but not stated the exact quantity collected by him and further the quantity of material brought by the plaintiff for construction was not measured for the reason the contract is exclusively for finishing item of work, but not for the material collected at the work site. In fact, the plaintiff has actually removed the silt from KM 57.925 to KM 58.075 for a length of 150 M only and cutting done to a depth of 0.20 M for foundation under side walls and 0.10 M depth in the canal bed portion for providing lining as against 0.30 M depth. Thereby, there was a depth of 0.10 M in the canal bed portion.

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The learned Government Pleader further submits that the plaintiff has accepted the measurements and in token of his acceptance, he has furnished his signatures without recording any protest. Now filing the present suit is only to extract the money and that the measurements relating to the

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silt removed was recorded in the M-Book and that the measurements relating to the canal bed cutting done by the plaintiff was also recorded in M-Book on 25.09.1993 as well on 01.10.1993. Thus, if the said figures were taken into consideration, the plaintiff has to be non-suited.

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It is further focused by the learned Government Pleader that after handing over the site, the plaintiff has proceeded ahead with the execution of the work upto 25.11.1993 as record of the last set of measurements for L.S.I and part bill shows that the plaintiff has executed the work for a period of two (2) months eighteen (18) days and afterwards only water was let out into the canal to save the standing crop. Moreover, the release of water into the canal was firmly informed to the plaintiff well in advance to take precautionary measures to safeguard the materials if any. The measurements were recorded in M-Book and as per the M- Book the plaintiff laid the concrete for side walls upto 25.11.1993 only. The plaintiff attended the work from the end

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of November, 1993 and resumed the work only in the month of July, 1994. Neither the plaintiff has kept any machinery at the site nor the department asked him to do so. Since the water was released into the canal, for supply of water to the standing crop, the department did not supply any cement to the plaintiff for the balance work from 01.12.1993 to 31.05.1994. On 26.05.1994 itself, the department supplied 20 tons of cement and on 01.06.1994 again supplied 20 tons of cement and in token of the same a receipt was obtained from the plaintiff.

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He further submits that there is no precedent to issue cement in bulk quantity when the water is flowing into the canal and that plaintiff should arrange for approach roads, bailing out water, protection to the work in progress, protection of works already completed, safety measures for men and material all precautionary steps to protect the work due to rain or floods or slipping and all the arrangements so required should be carried out and maintained at the costs of

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the plaintiff and no separate or additional payment is admissible. Thereby, the plaintiff is personally held responsible for any damage, loss of idle charges etc., if any actually caused. A notice was also issued to the plaintiff on 30.08.1994 for slow progress of the work and plaintiff was also issued a letter dated 07.10.1994 requesting to resume the balance of work and complete the same in all respects by duly providing lining in the first instance in left over gap portion of 25 M in the reach from KM 58.050 to 58.075. It was also made clear in the letter that he will be held responsible for the work already executed by him if immediate action is not taken to complete the balance of work. But all these reasons the claim made by the plaintiff is not at all tenable.

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He further submits that there was sufficient time left over without water in the canal from 24.10.1994 to 31.12.1994 during which the plaintiff could have completed the balance work. Actually, the plaintiff cleared the silt in

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canal upto KM 58.250, but not upto 58.327 KM. Thereby, the trial Court erred in decreeing the suit for Rs.2,65,743/- with interest. 20. As against the same, the learned counsel for the respondent/plaintiff submits that though the plaintiff removed the silt in the canal and after removal of the same, the bed cutting was also carried out to an average depth of 0.3 M. As per the agreement, the cement required for the work is to be supplied by the department, but the same is not supplied as requested by the plaintiff. The plaintiff started bed lining and construction of side walls and when work was in full swing and the side walls completed to a length of 125 M, the department failed to supply further quantity of cement. Therefore, the work of the bed concrete and constructions of side walls had to be suspended. Not only the same, but the plaintiff was also compelled to keep the machinery and equipment idle.

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He further submits that though the plaintiff requested the department for supply of cement to proceed with further work, instead of supplying the cement, the department allowed the water into the canal without any notice. On account of failure of the department in supplying the cement and letting water into the canal, the plaintiff could not utilize fully the construction material collected at the site and resulting the machinery and equipment brought to the work site has to be kept idle and they continued to allow the water into the canal till 15.07.1994 and much quantity of sand which was collected was washed away due to rains and floods occurred in the month of November, 1993 and a canal bed which was cleared earlier again silted and the plaintiff incurred heavy loss due to payment of idle charges to the machinery, centering equipment and washing away of the balance quantity of sand available at the work site. Therefore, the plaintiff is entitled to reimbursement of the expenditure incurred on this.

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He further submits that the plaintiff resumed the work

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in July 1994, after the water supply into the canal was stopped. The canal was desilted again and has removed the silt. Even though many times he requested for supply of further quantity of cement, was not heeded by the officials of the department. For want of cement, the plaintiff could not execute any further work and had to keep the machinery idle from 16.09.1994 to 27.09.1994. Though the department supplied twenty (20) tons of cement on 03.10.1994, but water was again let into the canal on 31.10.1994. Resulting, he sustained loss of keeping the machinery and centering equipment idle, which calculated in Annexure I as Rs.86,550/- and loss sustained by the plaintiff due to washing away of 200 cum. of sand, which amounts to Rs.15,000/-, making total for a sum of Rs.1,01,550/-. Besides, though he completed the work done, but not paid sum of Rs.1,06,478/- by the defendant towards this claim. The defendant is also liable to return the security deposit of

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Rs.16,730/- and further security deposit of Rs.39,599/aggregating to Rs.56,329/-. Apart from, the defendant is also liable to pay towards reimbursement of extra overhead charges of Rs.94,106/- incurred on the work.

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Having regard to the above submissions, this Court closely perused the evidence placed before the trial Court. It is a fact that the plaintiff has entered into an agreement on 07.09.1993, vide agreement bearing No.68/SE/93-94 to execute repair works of Kavali Canal, which is a feeder canal to Kavali tank. Under the said agreement, the plaintiff has to execute the following works:

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i). Removal of earth deposits in the canal; ii). To clear silt;

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iii). Excavation of the canal bed to its original bed; iv).Providing the canal bed with cement concrete; and v). Construction of concrete side walls to the canal.

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The contract to complete the work was one year from the date of taking possession i.e., 07.09.1993. The evidence which was made before the trial Court clearly goes to show

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that the plaintiff could not execute the work from 28.10.1993 to 15.07.1994 i.e., more than eight (8) months for want of cement and owing to flow of water into the canal. For that, the defendant claimed that under this canal there is a lot of agricultural work is going on and since it is a feeder canal to Kavali tank, water has to flow in that canal, that is the reason from 28.10.1993 to 15.07.1994 water was let into the canal. 25. It may be true that the plaintiff might have failed when he agreed to complete the work within a year from 07.09.1993, because admittedly the canal said to be supplied water to Kavali tank as it is a feeder canal, it should be clear in mind that in Ex.A.1 agreement, there is a material fact to say if water is released into the canal it should be informed to the contractor in writing by the Executive Engineer. But in this matter, admittedly, the department has not issued any notice in writing to the plaintiff before releasing the water into the canal. The same was admitted by D.W.1 in his evidence. When such clear clause in Ex.A.1 is there i.e., water will be

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released into the canal by duly informing the same to the contractor in writing by the Executive Engineer and the contractor has to stop the work on such days and the contractor shall not claim any compensation, in the present case, admittedly, from 28.10.1993 to 15.07.1994 water was released into the canal and no notice was issued to the plaintiff. 26. It is also found from the record that plaintiff resumed the work on 27.04.1995 by bailing out the water, cleared the silt and procured the necessary material such as sand, metal and required machinery. In the meantime, there was a cyclone from 06.05.1995 to 08.05.1995, due to which, as per the plaintiff, tank received water and canal bund northern side wall was breached to a length of 10 meters and that Gattupalli tank water entered into the canal was filled with mud and silt to a length of 70 meters and to a height of 3 meters. This is all removed by the plaintiff and D.W.1 was also admitted that there was a cyclone from 06.05.1995 to

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08.05.1995 and then Kavali water entered into the canal, due to which breach of canal to a length of 10 meters.

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The plaintiff in his communication categorically informed that by 25.10.1993, he completed 155 M of earthwork and 140 M of bed lining and side walls. The earth work is only silt clearance. Though he has completed bed concrete and side walls for 140 M, but in M-Book 125 M of side walls and bed concrete alone recorded. Likewise, though earth work was completed in 155 M, only 140 M bed concrete and side walls was recorded in M-Book and in between July 1995 to September, 1994 entire earth work upto 58.327 was completed.

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The plaintiff asserted that on account of unprecedented rains and cyclones, it is impossible to execute the work and further it caused loss to him. Though he sought an extension of time, the Executive Engineer on 30.09.1995 terminated the contract.

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The plaintiff in his contentions as well in the evidence stated that while resuming the work in July, 1994 at the second instance, he requested the defendant department to take pre-levels measurements of the canal, but they failed to take pre-levels. But, they mentioned in Ex.B.1 L.F. Book that pre-levels said to be taken on 07.09.1993, which is absolutely incorrect. As per Ex.A.1, he has to execute bed cutting to a depth of 0.01 meters, but he was made to execute 0.03 meters.

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This Court also perused the documents produced before the trial Court. One more clear instance, which can be found from the record, is in Ex.B.2 M-Book underneath the signatures of the plaintiff, no dates were mentioned. In view of the signatures in M-Book, the defendant avoids the claim made by the plaintiff. Because the department has to pay the amount, for which it has to take up measurements.

¶134

Apart from that in Ex.B.2 page No.3 there is a difference of dates under the signatures of D.W.3 by name

¶135

¶136

Ch.Koti Reddy. In page No.3, D.W.3 mentioned the date as 09.09.1993, in page No.4, he mentioned as 20.09.1993, in page No.10, he mentioned the date as 15.09.1993 and in page No.12, he mentioned the date as 06.10.1993. If prelevel measurements were taken by D.W.3 before commencement of the work at the site, in Ex.B.2 the dates would have not been different, which goes any amount of doubt in the claim made by the defendant.

¶137

Besides, it is also an admitted fact that in view of the cyclone, for which the plaintiff has no control as well allowing the water into the canal without prior notice, completion of the work was delayed.

¶138

In those circumstances, the claims made by the plaintiff in-total Rs.3,67,293/-, out of which the plaintiff could not be able to establish that his machinery and equipment remained idle and on account of that no evidence put forth by him, for which he made a claim of Rs.1,01,550/-

¶139

¶140

cannot be granted. Therefore, the said amount is not entitled by the plaintiff.

¶141

So far as other claims made by him are concerned i.e., (1) Payment due to the plaintiff for the work done is Rs.1,06,470/-, (2) Release of amounts with held in LS II and part bill by along part rates Rs.8,830/-, (3) Refund of EMD and FSD Rs.56,329/and (4) payment towards reimbursement of extra overhead charges incurred on the work is Rs.94,106/-, which all goes to Rs.2,65,743/-, entitled by the plaintiff with interest. For which no contra evidence is established to deny the claims made by the plaintiff.

¶142

So far as the interest awarded by the trail Court is concerned, the plaintiff claimed interest @ 24% per annum, but, since it is a commercial transaction and after passing of thirty (30) years, the trial Court granted @ 15% per annum in the year, 2004 and at this length of time reducing the rate of interest is not so warrants in the circumstances of the case.

¶143

¶144

In view of the above findings, this Court does not find any grounds to interfere with the well-articulated judgment and decree of the trial Court. Therefore, there are no merits in this appeal and as such the same is liable to be dismissed.

¶145

In the result, the appeal is dismissed by confirming the decree and judgment dated 31.03.2004 in O.S.No.18 of 1998 on the file of the Court of learned I Additional District Judge, Nellore. There shall be no order as to costs.

¶146

Interim orders granted earlier if any, stand vacated.

¶147

Miscellaneous petitions pending if any, stand closed.

¶148

______________________ JUSTICE V.SRINIVAS

Date:12.12.2023 Krs

THE HON’BLE SRI JUSTICE V.SRINIVAS

¶153

APPEAL SUIT No.3407 of 2004

¶154

DATE: 12.12.2023

¶155

Krs

State of A.P. v. G. Damodar Naidu

Case brief

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State of A.P. v. G. Damodar Naidu

Case brief

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