State Vs Santwant Singh — Orissa HC (2024) — LawSathi Research

State Vs Santwant Singh — Orissa HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal allowed in part on contest without cost: the Trial Court's idle-labour award of Rs.1,35,075/- is set aside and deducted from the principal decreetal amount, leaving a revised principal decreetal amount of Rs.5,68,300.29/- carrying the same interest terms as originally decreed; the plaintiff-contractor's entitlement to Rs.190/- per CuM for the M-150 Grade works (differential Rs.1,22,253.03 paisa per the Trial Court findings) stands confirmed.

Issue for consideration

Referred issue (i): whether the work in question was extra work and/or covered by the agreement; if covered by the agreement, any assurance claimed is inconsequential and the stipulated rate governs. +1 more

Court's answer

Agreement Ext.1 stipulated a rate (Rs.190/- per CuM) only for M-200 Grade concrete cement works and contained nothing regarding the rate for M-150 Grade works; therefore the executed M-150 Grade cement concrete works were extra works not covered by the agreement.

Ratio / Principle

For the 474.487 CuM of M-150 Grade cement concrete works executed in Block No.18 of Upper Indravati Dam Project (measurement book Ext.Y), the plaintiff-contractor is entitled to Rs.190/- per CuM — the same rate as M-200 Grade works — since identical expenditure was incurred for both grades (P.W.1, retired Chief Engineer, and D.W.1 so deposed; corroborated by Ext.S, the Chief Engineer's 1986 opinion recording the then Chief Construction Engineer's agreement to parity), and defendant No.3, after receiving Ext.18, impliedly accepted the parity proposal by directing the works to proceed; the running bills had allowed only Rs.95/- per CuM (1982 Schedule) and the final bill reduced this to Rs.91.98 paisa per CuM without assigning any reason/basis.

Key takeaways

Having accepted the extension of the completion period up to 02.08.1985 (granted after the strike-induced stoppage of 26.02.1985–13.04.1985), the plaintiff-contractor waived/forgave any idle-labour claim and proceeded with the works without claiming for idle labour; he is therefore estopped under law from claiming money for stoppage of works on the ground of idle labour, and no payment for idle labour is due.ratio¶117
The Apex Court-formulated issue No.1 is answered in favour of the plaintiff-contractor (respondent in this First Appeal) and against the defendants (appellants).ratio¶118

Detailed headnote1 paragraphs

F.A. No.168 of 1991 (Orissa High Court, Cuttack; appeal under Section 96 r/w Order 41, Rule 1 CPC 1908 by State of Orissa & Others, appellants/defendants, against the part Judgment (20.03.1991) and Decree (02.04.1991) of the Learned Sub-Judge, Jeypore in money suit M.S. No.417 of 1986 brought by contractor Santwant Singh Gill (dead) & Others for Block No.18 works of the Upper Indravati Dam Project, Koraput) — re-examined and decided on 12.11.2024 by Ananda Chandra Behera, J. pursuant to the Hon'ble Apex Court's Judgment dated 24.07.2006 in Civil Appeal Nos.3113 & 3114 of 2006 (following this Court's dismissal of the appeal on 19.06.2002), on two limited issues: (i) Agreement Ext.1 carried a rate only for M-200 Grade concrete (Rs.190/- per CuM) and none for M-150 Grade; the executed M-150 Grade works were accordingly held to be extra works outside the agreement, yet payable at the same Rs.190/- per CuM as M-200 Grade works — parity resting on identical contractor expenditure for both grades (testimony of P.W.1, retired Chief Engineer, and D.W.1), the then Chief Construction Engineer's concurrence recorded in Ext.S, and defendant No.3's implied acceptance, after Ext.18, of the parity proposal by allowing the works to proceed (running bills had allowed only Rs.95/- per CuM per the 1982 Schedule, cut to Rs.91.98 paisa per CuM in the final bill without basis); the differential of Rs.1,22,253.03 paisa per the Trial Court findings stands; (ii) having accepted extension of the completion date to 02.08.1985 after the strike stoppage of 26.02.1985–13.04.1985, the contractor waived any idle-labour claim and is estopped; the Trial Court's idle-labour award of Rs.1,35,075/- is discarded. Principal decreetal amount correspondingly reduced from Rs.7,03,375.29 paise to Rs.5,68,300.29/- with interest terms unchanged. Appeal allowed in part on contest, without cost.

ORISSA HIGH COURT : CUTTACK

F.A No.168 of 1991

In the matter of an appeal under Section 96 of C.P.C, 1908.

State of Orissa & Others … Appellants.

-VERSUS-

Santwant Singh Gill (dead) & Others … Respondents.

Counsel appeared for the parties:

For the Appellant : Mr. S. Pattnaik, AGA. For the Respondents : Mr. A. Sanganeria, Advocate. P R E S E N T:

HONOURABLE

MR. JUSTICE ANANDA CHANDRA BEHERA

Dates of Hearing : 29.10.2024 :: Date of Judgment : 12.11.2024

JUDGMENT

ANANDA CHANDRA BEHERA, J.—

1. According to the Judgment dated 24.07.2006 passed in Civil

Appeal Nos.3113 & 3114 of 2006, by the Hon’ble Apex Court, this First

Appeal under Section 96 r/w. Order 41, Rule 1 of the CPC, 1908 (which

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was preferred against the Judgment and Decree dated 20.03.1991 and 02.04.1991 respectively passed in a suit vide M.S. No.417 of 1986 by the Learned Sub-Judge, Jeypore) was remitted back to this Court for reexamination of the following two limited issues i.e.

(i) to find out, as to whether the work in question was extra work was and/or covered by agreement. If it was covered by the agreement, the question of assurance, if any given as claimed is inconsequential. If it was a part of agreement it was to be covered by the rate stipulated. In that event, there is no question of any assurance having any role to play. This aspect has also not been considered by the High Court.

(ii) if work was to be completed by 02.08.1985 as claimed by the respondents, the question of any payment being made for idle work beyond the said date does not arise. This aspect was also required to be analysed by the High Court, which has not been done.

2. In order to re-examine and answer the above two limited issues as per the aforesaid directions of the Hon’ble Apex Court, it is felt proper to State the pleadings of the parties along with relevant oral and documentary evidence relating to the same available in the record hereunder:

The respondent (contractor) of this 1st Appeal was the plaintiff and the appellants were the defendants in the suit vide M.S. No.417 of 1986.

The suit vide M.S. No.417 of 1986 of the plaintiff (contractor) against

the defendants was a money suit.

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The case of the plaintiff (contractor) against the defendants in nutshell

as per his pleadings was that, after competition of lawful tender process, he (plaintiff) was entrusted with the works of Block No.18 of Upper Indravati Project of Indravati Dam in the district of Koraput by the defendants as per an agreement (Ext.1) commencing from 02.02.1985 to be completed on 01.05.1985 with a condition that, the defendants shall supply him (plaintiff) cement free of cost, but due to the strike of the employees of the Indravati Dam Project, the works of the plaintiff (contractor) was stopped from 26.02.1985 to 13.04.1985, to which, he (plaintiff) intimated on 01.03.1985 to the defendant No.3 (Executive Engineer of Indravati Dam Project). After considering the request of the plaintiff-contractor, the time period for completion of the work was extended from 01.05.1985 to 02.08.1985. During the course of execution of works by the plaintiff (contractor), the works were stopped on several occasions due to non-supply of cements by the Executive Engineer of the project (defendant No.3), failure of electricity and break down of the machineries of the project and continuance of the strikes of the staffs of Indravati Dam Project and accordingly, there was stoppage of works for the above reasons from 26.02.1985 to 13.04.1985 and from 03.07.1985 to 06.01.1986 for about 3 and half months. For which, the plaintiff’s labour remained idle during that period, but, he (plaintiff) paid them their remunerations from his own pocket even without work. In spite

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of such hurdles, not for his fault but for the fault of the defendants, even though, the (plaintiff) was interested to complete the work within the extended period i.e. within 02.08.1985, but, all on a sudden, the plaintiff received a notice from the Sub-divisional Officer of Indravati Dam (SubDivision-II), wherein, he (plaintiff) was directed to sign the first and final bill of the works executed by him till then and accordingly, the defendants through its officers took up the measurements of the works executed by the plaintiff without intimating him and directed him (plaintiff) to accept the final measurements done by them and assigned the said project works to an another contractor i.e. Mtial and Co. of Rajasthan.

3. The plaintiff had executed 168.615 CuM RCC cement works of M- 200 Grade and 454.448 CuM plain concrete cement works of M-150 Grade. He (plaintiff) had executed 168.615 CuM RCC Cement works of M-200 Grade as per agreement vide Ext.1 and at a time he (plaintiff) had also executed 454.448 CuM plain concrete works of M-150 Grade as per the directions of the defendants for providing required strength to the Upper Indravati Dam Project, for which, he (plaintiff) is entitled for the same rates of payment for the above both category of concrete cement works i.e. at the

rate of Rs.190/- per CuM. Therefore, in order to get the payment of the above executed works of the plaintiff, he (plaintiff) requested the defendants

through several letters, but, there was no response to the same, for which,

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after issuing the statutory notices under Section 80 of the CPC, 1908 against the defendants, he (plaintiff) filed the suit vide M.S. No.417 of 1986 against the defendants praying for recovery of Rs.8,93,659.91 paisa in total as principal amount with interest at the rate of 18% per annum thereon under the above two heads along with others indicating specifically in his plaint, to which, the defendants contested without disputing the entrustment of works to the plaintiff for construction of works of Block No.18 of Upper Indravati Project of Indravati Dam up to 626.50 with 66.03 percent excess thereon over the schedule of rates with their specific stands/pleas that, the plaintiff himself has committed breach of contract not executing the works within the stipulated period as per agreement vide Ext.1 and the allegations alleged by him (plaintiff) against the defendants i.e. about the strike of the staffs of the Indravati Dam Project and non-supply of cement by the defendants to him (plaintiff) for the works, failure of the electricity etc. are not correct. For which, the suit of the plaintiff is liable to be dismissed against them (defendants).

4. Basing upon the pleadings of the parties, 17 numbers of issues were framed by the Trial Court and the said issues are:

1. What is the quantity of R.C.C. work executed by the plaintiff and at what rate is the same payable?

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2. What are the extra items of work done by the plaintiff? What is the quantity of extra item of work done by the plaintiff and at what rate the same is payable?

3. What is the quantity of cleaning, chiseling and brushing of surface has been done by the plaintiff and at what rate is the same payable?

4. What is quantity of spreading cement slurry of cement water used over the previous executed surface and at what rate the plaintiff is entitled for payment?

5, What is the quantity of centering and shuttering work done by the plaintiff and at what rate the plaintiff is entitled for payment for the same?

6. What is the quantity of bending, binding, cutting and placing in position of M.S. rods in cement concrete done by the plaintiff and at what rate he is entitled to payment for the same?

7. What is the loss sustained by the plaintiff for stopping the work without the notice and engaging other agency to work and interfere in the work of the plaintiff?

8. What is the quantity of sand and R.R. stones stored by the plaintiff at the site and remained unutilized and at what rate the plaintiff is entitled for the said stock?

9. What is the quantity of R.R. Stones and C.R. stones collected at the quarry and at what rate the plaintiff is entitled for the same?

10. What is the coursed rubble stones, dressed stones transported to site which remains unutilsed for stoppage of work and at what rate the plaintiff is entitled for the same?

11. What is the amount of compensation the plaintiff is entitled on account of idle labour due to labour unrest and nonsupply of cement etc. and for what period?

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12. Whether the plaintiff is entitled for hutments and for approach roads to work site etc. constructed by the plaintiff and what is the amount of compensation on this head the plaintiff is entitled?

13. whether the plaintiff is entitled payment for the scaffolding fixed to the work and kept at site if so, what is the amount?

14. whether the plaintiff is entitled to the profits on the balance un-executed works and if so, what is the amount to which the plaintiff is entitled?

15. whether the plaintiff is entitled to interest by way of damages for wrongful withholding of the amount due to the plaintiff. If so, what is the amount which the plaintiff is entitled by way of interest and at what rate?

16. Whether the plaintiff is entitled to get back his security deposit?

17.To what relief, if any, the plaintiff is entitled?

5. In order to prove the case of the plaintiff, the plaintiff examined 10

witnesses from his side and relied upon several documents on his behalf.

On the contrary, the defendants examined only one witness i.e. retired

Chief Engineer of the Irrigation Department as D.W.1 and also relied upon several documents on their behalf.

6. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court decreed the suit of the plaintiff in part on contest against the defendants and directed the defendants to pay the decreetal amount i.e. Rs.7,03,375.29 paise as principal

with interests thereon as per its Judgment and Decree dated 20.03.1991 and

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02.04.1991 respectively assigning the reasons that, as per measurement, the

plaintiff has executed 169.034 CuM of M-200 grade concrete cement works and 474.487 CuM M-150 grade concrete cement works in total 643.521 CUM and as the nature of cement concrete works in M-200 (Covered in the agreement vide Ext.1) and M-150 Grade cement concrete works (not covered in the agreement vide Ext.1) are same, then, he (plaintiff) is entitled to be paid at the same rate i.e. at the rate of Rs.190/- per CUM for M-150 Grade concrete cement works like M-200 grade cement concrete works discarding the plea of the defendants that, the plaintiff is not entitled equal rate for M-150 Grade concrete works with M-200 Grade concrete cement works even though the same was not covered in the agreement vide Ext.1.

Likewise, the Trial Court also accepted the prayer of the plaintiff for idle labour indicating that, the labourers of the plaintiff had remained idle for the period from 26.02.1985 to 13.04.1985 and from 03.07.1985 till the end of August 1985, which roughly comes to three and half months, during the period of which, he (plaintiff) has paid them their remunerations without work.

7. On being aggrieved with the aforesaid part Judgment and Decree

passed by the learned Trial Court in the suit vide M.S. No.417 of 1986 against the defendants, they (defendants) challenged the same by preferring this First Appeal being the appellants against the plaintiff challenging that

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part Judgment and Decree passed by the Trial Court in the suit vide M.S. No.417 of 1986 in favour of the plaintiff.

8. After hearing from both the sides, this 1st Appeal preferred by the defendants was dismissed as per its Judgment dated 19.06.2002, to which, the defendants challenged before the Hon’ble Apex Court by preferring the Civil Appeal vide Civil Appeal Nos.3113 and 3114 of 2006.

9. After hearing from both the sides, the Hon’ble Apex Court as per its Judgment dated 24.07.2006 remitted back this 1st Appeal to this 1^st Appellate Court for re-examination of the above two limited issues indicated above in Para No.1 of this Judgment.

I have already heard from the learned Addl. Government Advocate for the appellants (defendants) and the learned counsel for the respondent (plaintiff-contractor).

10. So far as re-examination of the first issue as per the direction of the Hon’ble Apex Court i.e.

to find out, as to whether the work in question was extra work was and/or covered by agreement. If it was covered by the agreement, the question of assurance, if any given as claimed is inconsequential. If it was a part of agreement it was to be covered by the rate stipulated. In that event, there is no question of any assurance having any role to play is concerned;

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11. As per the pleadings and evidence of the parties as well as the agreement vide Ext.1, there was incorporation in that Ext.1 about the rate of payment to the plaintiff-contractor for execution of per CuM M-200 Grade concrete cement works i.e. at the rate of 190/- per CuM, but Ext.1 (agreement) does not contain anything relating to rate of payment to the plaintiff-contractor for execution of per CuM M-150 Grade concrete cement works, for which, the works (those have been executed by the plaintiff) in respect of M-150 grade concrete cements works in Upper Indravati Dam Project for Block No.18 were the works beyond the agreement vide Ext.1.

Therefore, it is held that, the executed works in respect of M-150 Grade cement concrete works were the extra works and the same were not covered in the agreement vide Ext.1.

12. Now, the question arises, whether the plaintiff-contractor is entitled to be paid Rs.190/- per CuM for M-150 Grade concrete cement works at the same rate like per CuM of M-200 Grade concrete cement works or not?

As per the measurement books vide Ext.A, A/1 & Y prepared by the Junior Engineer (who was supervising the day to day works of the plaintiff) checked by its higher authorities i.e. S.D.O and the Executive Engineer, Indravati Dam Division (defendant No.3) as well as the Superintending Engineer (D.W.1), the plaintiff has executed M-200 grade concrete cement works to an extent of 169.034 CuM and M-150 grade concrete cement

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works to an extent of 475.487 CuM and accordingly, the total executed works of the plaintiff for the above both categories i.e. for M-200 Grade Concrete Cement works and M-150 Grade Concrete Cement works comes to 643.521 CuM, but against which, the plaintiff has claimed payments for the execution of 643.437 CuM concrete cement works in total as per Para No.18(1) of his plaint.

Therefore, the claims of the plaintiff in respect of his 643.437 CuM concrete cement works in total for both the categories are not improper.

13. Out of the aforesaid total executed works, the plaintiff has executed in respect of M-200 Grade concrete cement works to an extent of 169.034

CuM and in respect of M-150 Grade Concrete cement works to an extent of 474.487 CuM.

There is no dispute between the parties regarding the rate for payment of per CuM in respect of M-200 grade concrete cement works. Because, as per Ext.1, the plaintiff is entitled to get at the rate of Rs.190/- per CuM in respect of M-200 Grade concrete cement works, but, there is dispute between them (parties) relating to the rate for payment in respect of M-150 Grade concrete cement works. As the plaintiff has executed M-150 Grade Concrete cement works at a time during the course of execution of M-200 Grade concrete cement works in the same Upper Indravati Dam project as

per the directions and requirements of the defendants and as he (plaintiff-

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contractor) has incurred same expenditures for execution of per CuM of M-

150 Grade concrete cement works like per CuM of M-200 Grade concrete cement works, for which, he (plaintiff) has claimed payment at the same rate for each CuM of M-150 Grade concrete cement works equal with M- 200 Grade Concrete cement works i.e. at the rate of Rs.190/- per CuM for both the categories. But, in the running bills vide Ext.A and A/1, the defendants had allowed the plaintiff to get at the rate of Rs.95/- per CUM for M-150 Grade concrete cement works on the basis of 1982 Schedule treating the same as an extra work beyond the agreement vide Ext.1, whereas in the final bill, the defendants reduced the same from Rs.95/- per CuM to Rs.91.98 Paisa per CuM without assigning any reason/basis.

14. The witnesses of the plaintiff i.e. P.W.1 (retired Chief Engineer) has specifically deposed in his evidence stating that, “the requirement of sand and chips for one CuM either for M-200 or for M-150 Grade Concrete cement works are equal and same. The proportion of cement is less in M- 150 grade concrete than M-200 Grade concrete, but, so far as the expenditures of the contractor is concerned, he bears the same expenditures for the execution of both categories of works.”

The witness of the defendants i.e. D.W.1 has deposed in his evidence

by stating that, “the labour charges for preparation and laying of the concrete are the same for both i.e. for M-200 Grade concrete cement works

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as well as for M-150 Grade concrete cement works, whatever may be the required proportion of cements for the same.”

15. The above evidence of D.W.1 has been corroborated through the document vide Ext.S containing the opinion of the Chief Engineer in 1986.

It appears from the letter vide Ext.S (letter of the defendant No.3 to the Superintending Engineer) that, the then Chief Construction Engineer had agreed that, the plaintiff contractor is to be paid at the same rate for both the nature of works i.e. for M-200 as well as M-150 Grade concrete cement works, as, in both the cases, the nature of works & required expenditures of the plaintiff (contractor) are the same. Accordingly, it was agreed by the defendants that, the plaintiff is to be paid at the rate i.e. Rs.190/- per CUM for M-150 Grade concrete cement works equal with per CuM of M-200 Grade Concrete Cement works. For which, the plaintiff as per Ext.18 informed the Executive Engineer of Indravati Dam project (defendant No.3) to start the works of M-150 Grade Concrete cement works at the same rate indicated in the agreement vide Ext.1 for per CuM of M-200 Grade Concrete cement works. After receiving that Ext.18, the Executive Engineer without giving any written reply to the same requested the plaintiff to start the execution of works of M-150 Grade Concrete cement in Upper Indravati Dam project and accordingly, the plaintiff executed M-150 Grade Concrete cement works in the said Dam Project. When by the above conducts of the

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defendant No.3, the defendants impliedly accepted the proposal of the plaintiff as per Ext.18 to provide payments at the same rate with M-200 Grade Cement Concrete Works for per CuM of M-150 Grade concrete Cement works and when, as per the evidence of P.W.1, D.W.1 and Ext.S, the same expenditures have been incurred by the plaintiff (contractor) for execution of both the categories of concrete cement works i.e. for M-200 Grade as well as for M-150 Grade and when as per the measurement book vide Ext.Y prepared by the defendants, the plaintiff has executed 474.487 CuM M-150 Grade Concrete works, for which, it is held that, for the execution of 474.487 CuM M-150 Grade Cement concrete works by the plaintiff in Block No.18 of Upper Indravati Dam Project, he (plaintiff) is entitled to be paid at the same rate for each per CuM of M-150 Grade concrete cement works i.e. at the rate of Rs.190/- equal with per CuM of M- 200 Grade concrete cement works.

So, the plaintiff is entitled for the differential amount of money i.e. Rs.1,22,253.03 Paisa as per the findings of the Trial Court.

16. So far as the re-examination of the 2^nd issue as per the direction of the Hon’ble Apex Court i.e. if work was to be completed by 02.08.1985 as claimed by the respondents, the question of any payment being made for idle work beyond the said date does not arise is concerned :

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17. It appears from the records and it is also the own case of the plaintiff

that, after the first strike of the workers of Indravati Dam Project, the plaintiff-contractor requested the defendants for extension of the duration of the work period on account of such strike of the workers and accordingly, the time period for completion of the works was extended up to 02.08.1985, to which, the plaintiff accepted and proceeded with the works without claiming any money from the defendants on the ground of idle labour i.e. for stoppage of works for any reason. Accordingly, the plaintiff had waived/forgiven his claim, if any, concerning the idle labour due to getting extension of the period for competition of the works. For which, the plaintiff is estopped under law to claim any money from the defendants for the stoppage of his works on the ground of idle labour. Therefore, the question of entitlement of any money by the plaintiff from the defendants for idle labour does not arise, because, extension of time was granted by the defendants to the plaintiff for completion of the works.

18. As per the observations made above, the issue No.1 indicated in Para No.1 of this Judgment as formulated by the Hon’ble Apex Court is answered in favour of the plaintiff-contractor (respondent in this 1st Appeal) and against the defendants (appellants in this 1^st Appeal), but, the issue No.2 indicated in Para No.1 of this Judgment as formulated by the Hon’ble Apex

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Court is answered against the plaintiff-contractor (respondent in this 1st Appeal) and in favour of the defendants (appellants in this 1^st Appeal).

19. On the basis of the aforesaid findings and observations made in respect of the above two limited issues, the Judgment and Decree passed by the learned Trial Court is required to be modified/altered to a limited extent. Because, he (plaintiff) is not entitled to get Rs.1,35,075/-, to which, he was entitled to get as per the Judgment and Decree of the learned Trial Court for idle labour.

When out of all the findings and observations of the learned Trial Court in favour of the plaintiff (contractor), the particular observation made by the learned Trial Court in issue No.11 in favour of the plaintiff to get money for idle labour has been discarded (set aside), maintaining/confirming the observations in respect of all other issues except the said observations in issue No.11, then, at this juncture, the plaintiff is entitled to get Rs.1,35,075/- less from the principal decreetal amount passed

by the learned Trial Court without changing any interest parts on the principal amount as passed in that decree.

As the principal decreetal amount was for Rs.7,03,375.29/- and the plaintiff is entitled to Rs.1,35,075/- less from the same, then, after deduction of Rs.1,35,075/- from Rs.7,03,375.29/- the plaintiff is entitled to get

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Rs.5,68,300.29/- as principal decreetal amount with same rates of interests

on the principal decreetal amount as passed by the learned Trial Court.

20. In the result, the appeal preferred by the appellants (defendants) is allowed in part on contest, but without cost.

(ANANDA CHANDRA BEHERA) JUDGE

High Court of Orissa, Cuttack The 12.11.2024// Rati Ranjan Nayak Sr.Stenographer

Signature Not Verified

Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cutt ack, India. Date: 20-Nov-2024 15:59:17

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