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In the Court of the District Judge, Anantapuramu
Present:- Sri A.Hari Haranadha Sarma,
District Judge, Anantapuramu.
Wednesday, the 25th day of January, 2017.
Original Suit No.10/2001
Between:
Reddy Veeranna S/o R.Sanjeevappa, Class-I Contractor, Hindu, Major, residing at Classic court, 2nd Floor, 9-1, Richmund Road, “B” Block, Bangalore, Karnataka State
......Plaintiff.
And
1. Govt., of A.P., Reptd., by the District Collector, Ananthapuramu district, Ananthapuramu (amended as per orders in IA.2382/2012 dated 14.12.2012).
2. The Superintendent Engineer, Irrigation Circle, Ananthapuramu.
3. The Executive Engineer, Y.V.R.P. Division, Mudigubba, Ananthapuramu District.
........Defendants.
This suit coming on 13.07.2016 for final hearing before me in the presence of Sri M. Manohar Naidu, Advocate for the plaintiff and of Sri B.Rajasekhar Gowd, Govt., Pleader for Defendants 1 to 3, having heard them and having perused the material papers on record and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
This is a suit filed, for granting money decree for an amount of
Rs.3,19,16,031/- (Rupees three crores nineteen lakhs sixteen thousand and thirty one only), by one R.Veeranna against the defendants. The first defendant is the Government of Andhra Pradesh represented by District
Collector, Ananthapuramu, second defendant is Superintendent Engineer,
Irrigation Circle, Ananthapuramu and third defendant is Executive Engineer,
Y.V.R.P. Division, Mudigubba of Ananthapuramu.
2.Case of plaintiff in brief is that, he is a Class-I contractor. The work of construction of spill way of Yogivemana Reservoir Project including construction of Road Bridge, Spill way Regulator and certain other works were entrusted to the plaintiff on successful acceptance of the tender of the plaintiff.
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The plaintiff submitted his tender in excess of 37.52% over the estimated rates based on 2SSR rates 1995-96. The agreement was concluded between the plaintiff and second defendant on 15.02.1997 for the value of Rs.7,53,70,360/-
The period of work is from 15.2.1997 to 14.2.1998 (one year). As per the understanding, certain obligations are to be fulfilled by both parties particularly plaintiff and defendant Nos.2 and 3. Second defendant did not fulfill his obligation before signing of agreement or even during the course of execution of agreement. Second defendant did not co-operate for execution of the contract and committed breach. Three years prior to contract with the plaintiff, another agency did some part of work. The defendants failed to acquire quarries from pattadars by paying compensation for procuring material i.e., stone, metal etc., The approaches to quarries had to be formed through patta lands. The lands necessary were not acquired to set up for approaches.
When the plaintiff started his agreement work, pattadars raised objection for obtaining material from the quarries. The same was brought to the notice of second defendant under letter dated 7.11.1997, but no action was taken. As per the terms of agreement, defendant Nos.2 and 3 shall supply all drawing according to which the work has to be executed. But the second defendant failed in that regard which has contributed some delay.
2(2).When the site is handed over to the plaintiff there shall not be any interference by the defendants or other contractors in case of LS contracts. But there was interference by the contractors of end blocks who could not maintain the progress of their work and the same has made the plaintiff to wait by keeping his labor idle for a considerable period. The construction work was monolithic and plaintiff had to raise the masonry on both ends. The interference was contrary to the system of agreement of contract which has caused some delay, for which the second defendant is responsible. It is the primary obligation of second defendant to obtain clearance of foundation from
Geologist. The end blocks 1 and 12 which are monolithic are covering 6 Mtrs.
in the spillway and the remaining portion of blocks are covered in left NOF and 3 right NOF. But for taking up the in the above blocks, the clearance of Geologist was obtained four months after the date of commencement of work which has resulted in prolonged execution of the work. Inspite of getting the same to the notice of defendant Nos.2 and 3 under letter dated 7.11.1997, they did not take any action. The Reservoir was receiving and storing water, as the earlier agency who executed the work raised the masonry above its average ground level. Due to heavy rains during August, September and October, 1997 the plaintiff was unable to do any work particularly due to standing water in the upstream and downstream. The work would be resumed only after water level was decreased. This is another factor contributed for the delay. The work site is prone to Malaria fever and the labour imported could not adjust to the climate, hence all of a sudden they abandoned the work. Hence fresh labour were mobilized by importing from other areas. The plaintiff has executed
additional work along with agreement work. But payment for additional work
was not made as per Cl.68 of P.S. to A.P.S.S. Long time was taken for approval of deviations and supplemental agreement and also availability of the funds by the defendants. The plaintiff has addressed letters dated 22.11.97, 01.12.97, 15.9.98 and 7.10.99, but expected response was not there from the defendants.
2(3). Further case of plaintiff is that, for removal of silt and stones accumulated and for execution of this additional item of work, plaintiff faced lot of difficulty. The accumulation and collection of silt and stones was due to gap of three years between the completion of agreement with the plaintiff and stoppage of work by earlier Contractor and the accumulation was to a depth of more than 1 Meter. The earlier agency of the plaintiff did his work upto +363.00 with M.2- concrete on front face of spillway,but the agreement of plaintiff was provided for continuing the work with M.15 inspite of seeking clarification under letter dated 24.2.1999, no clarification was furnished within time. The earlier agency has executed work as per the designs furnished by
A.P.E.R.L., but data for executing the plaintiff‟s work was based on Koulasnala 4
Project. The plaintiff sought clarification as to how to proceed with the work, but the clarification was given after considerable lapse of time. Hence the work was stopped to a maximum time. The Consultant from NABARD inspected the site in June, 1997 and suggested to take up remedial measures to prevent seepage through the foundation masonry constructed by earlier agency upto +363.00. This was additional work entrusted to the plaintiff. In the month of
June, 1997 the Chief Engineer, Medium Irrigation inspected the site and suggested drilling and grouting in all the blocks of the spillway. This is also an
additional work not contemplated in the agreement. The plaintiff had to
procure the necessary machinery and experienced labour for handling the machinery for accomplishment of the additional work. The end block No.1 and
Block No.12 which was opened by the plaintiff for the purpose of bonding were found full of voids. Hence the plaintiff was instructed to conduct the permeability test in some more blocks also. The work of core drilling, grouting for permeability tests could not be taken up in the months August, September and October of 1997 as working area is sub-merged due to floods and the work was taken up and completed in October, 1997. The said work was not only involving extra financial burden, but also time for its execution. The contract of this work is only consisting of civil work whereas the mechanical work has to be done by second defendant or it shall be executed through some other agency. The arrangements such as procuring mechanical parts, fixing an agency should have been made much earlier by the defendants. Instead the defendant started making all the arrangements when the plaintiff executed the work upto the level +377.00 at which mechanical parts are to be fixed. By the month of 1st January,1998 piers were raised upto fixtures level, but mechanical parts are not fixed. Even trunion box was not fixed till September, 1998.
Hence work beyond +377.00 could be resumed only after November, 1998.
Hence the work from January, 1998 to November, 1998 was held up due to the default and negligence of the second defendant. The requirement was brought to the notice of the defendants by the plaintiff under letters dated 15.9.98, 24.12.99 and 1.3.2000.
5 2(4). Further the case of plaintiff is that, additional work as to walkway bridge was also entrusted to the plaintiff. This was not contingent to the main work. For the purpose of executing this work, the plaintiff was constrained to procure men, material and spent time. The way in which additional item of work was entrusted indicates that estimates were made and tenders were invited without proper assessment of the total work to be done. Frequent inspections were conducted since 15.2.1997 by various officers. The plaintiff was asked to take up re-construction of bucket portion in block Nos.10,11 and 12 during October, 1999 which is one year 7months after the agreed period of completion. The work of re-construction is a rectification of work done by earlier agency which was damaged due to various reasons. This was an
additional work. Necessary drawings were not supplied in time and the supply
of drawings etc., took some time and contributed for certain delays. For several works which are not contemplated under the agreement done by plaintiff there was no payment and the same has caused delay in mobilizing
additional funds by the plaintiff. Even in respect of some items of work done by
the plaintiff, the payments were abnormally delayed inspite of repeated requests and certain times bills were returned due to lack of funds. Plaintiff was ready to perform his part of obligation under the agreement in time, but there was delay and non-cooperation by the defendant Nos.2 and 3. The second defendant granted extension of time for 8 times for a period from 2 to 10months. The second defendant insisted the plaintiff to keep open a contract of one year for an additional period of three years due to entrustment of
additional work to plaintiff. Absence of planning and co-ordination by the
defendants caused the delay. During the extended period of contract, several other departments entrusted various works in the surrounding areas at a very high premiums over prevailing SS rates. Hence the plaintiff is entitled for the same rates of labour. The defendants calculated at tender rates in the agreement basing on SS rates of year 1994-95, but the work was entrusted to the plaintiff when the SS rates are 1996-97 were in force. Hence the plaintiff is entitled for prevailing rates of Standard Schedule of the years of 6 work.(emphasis is added) The additional expenditure incurred by the plaintiff shall be reimbursed by the defendants. The Government used to revise the prices year by year. When the additional work is entrusted and executed after the agreed period, the plaintiff is entitled for revised rates. The delay contributed by the defendants and non-payment of the amounts has exposed the plaintiff to untold loss.
2(5). The further specific contention of the plaintiff is that, he is entitled for the payment for all items of work executed in terms of Sec.70 of Indian
Contract Act. He has incurred expenditure of Rs.1,00,000/- for payment to pattadars who did not allow the vehicles for transport. He has sustained huge loss because of non-cooperation of the defendants. The additional quantities of work uncovered by the agreement are, to a tune of Rs.1,41,93,891/-. The plaintiff had to conduct some negotiations with the pattadars and pay some amount as compensation for the standing crop. As per the terms and conditions of contract, certain tests like drilling, grouting and permeability tests etc., are to be conducted by defendant Nos.2 and 3 and the plaintiff has to provide only minimum assistance in the shape of labour. But the second defendant insisted that plaintiff should conduct the permeability test in the masonry constructed by the plaintiff. (emphasis is added). This additional work took four months time, but for this period no amount is paid despite requests.
The additional work of construction work of walkway bridge was entrusted in the month of October, 1998 and there was heavy flood on 26.2.2000 due to which rivers, sluice and reconstruction of bucket could not be executed, since the work area was sub-merged. The second defendant did not have clear concept or idea of the total work that they wanted to get done by the plaintiff.
The extension of time for 10 months, two months, four months, six months, three months, three months, three months and six months etc., time to time reveals that the second defendant failed to fulfill their part of contractual obligation and defendants have entrusted heavy additional works which were not covered by the agreement. During the extended period of contract i.e., 7 three years one month over and above, the actual period of completion the plaintiff incurred heavy expenditure by way of increasing labour charges, costs of material and hire charges of machinery. The other departments have led various works based on prevailing SS rates at higher premium. The plaintiff was forced to incur expenditure of 40% extra for the work during relevant period on par with the other contractors. Therefore, the plaintiff is entitled to receive the extra expenditure based on the conditions under the contract.
2(6). Further case of the plaintiff is that, Cl. 2.11.1 page 19 of the contract reveals that “The tenderer will however base his lumpsum tendered on this schedule of quantities”. According to this stipulation, the plaintiff submitted his tender to execute the quantities shown in Schedule-A and it also implies that the tenderers does not apply for additional quantities. The agreement of contract Cl. 3.16 at page23 stipulates that no escalation of the rates will be paid and the Contractor has to quote his rates taking into account the period involved for completion of work. The period for completion of work at the time of submitting the tender was 12 months. With anticipation that the defendants will co-operate and fulfill their obligations in time and there would be no deviation or additional work and by taking the period of completion of work, the tender was submitted by the plaintiff. But prolonged execution fo work due to various defaults and delays committed by second defendant exposed the plaintiff to incur huge expenditure and the plaintiff is entitled to claim escalated prices. The clause in the agreement contra restraining the entitlement of plaintiff does not imply. As per the agreement terms and conditions, the plaintiff estimated proper probable variations in the prices during the period of execution i.e., for the period from 15.2.1997 to 14.12.1998. but beyond the agreement quantities additional items were ordered for execution beyond 14.2.1998, such entrustment of additional items for additional period were not in anticipation. Hence the plaintiff is entitled for receiving additional sum for
additional expenditure incurred. (emphasis is added)
8 2(7).The plaintiff further claimed that for clearance of site, he has incurred expenditure of Rs.1,00,000/- for removal of silt, stone, boulders is 6500-CUMT. He is entitled for payment of Rs.1,00,000/- and he has paid compensation to the pattadars for quarry roads at Rs.1,00,000/-. Hence he is entitled for the same. He has paid Rs.4.5 lakhs as advance to the labourers, but in view of certain delays at elevation of +368.00 he has to suspend the works particularly for conducting drilling, grouting and permeability etc., tests and also due to heavy rains, floods, inundation etc. Further the labourers were affected with Malaria for which he has incurred expenditure. The plaintiff had to incur expenditure of costs of admixture in a sum of Rs.6,16,000/- which is the work supposed to be executed as per the design mix furnished by APERL, but for the reasons best known the second defendant estimated and adopted the data of Koulasnala Project of Nizamabad district. As per Cl.31.1.3 at page 104 of the agreement the defendant has to supply admixture free of costs, but the plaintiff has incurred the said costs. Therefore he is entitled for the same.
2(8).Plaintiff has further claimed that there was under utilization of machinery and equipment. He has invested Rs.24,00,000/- in terms of the agreement he has deployed at the site work all the required machinery i.e., 6
CC mixtures, one compressor, 100 KV Generator, 15 HP., 10 HP., and HP., pump sets each four numbers + other auxiliary machinery. But he could not utilize it to its optimum extent, during the extended period of three years which has due to delay of default committed by the second defendant in getting the contract work executed. The machinery was under utilization to an extent of 66 2/3% besides causing loss to the plaintiff in a sum of
Rs.24,00,000/- and he was also compelled to pay interest on that amount.
Hence he is entitled for the said sum.
2(9). Further the plaintiff claimed for conducting permeability tests, he has incurred expenditure of Rs.10,14,000/-. Earlier agency has conducted work upto +363.00. When plaintiff was directed to attend the permeability 9 test, he has attended the same but again at +368.00 stage, he was required to conduct once again the permeability test. These tests were conducted in two occasions in the work executed by the plaintiff, but the payments were not made. The Special Specification Nos.SS 601 and 615 does not specify that plaintiff has to do drilling, grouting and permeability tests also in the masonry.
The specification No.33.15.2 and 33.15.4 narrates the procedure adopted for conducting permeability test. But it does not specify that the plaintiff has to do it. The general condition at Cl.4.8.1 under sub-head “Standard Test and
Quality” at page 26 stipulated. As per which the day to day and periodical test carried out on the material and work finished or otherwise shall be specified by third defendant from time to time and plaintiff shall allow all the specialties and co-operation towards collection of samples, cores etc., It shall be done by the third defendant staff at Government expenditure. Cl. 4.8.4 at page 7 of the agreement stipulates that the Contractor shall access to all operations and tests that may be carried out.
2(10). Further case of the plaintiff is that above general conditions stipulated, the Government will conduct test and Contractor should co-operate. The special specifications 33.15.2 and 33.15.4 denotes the procedure adopted in conducting the tests. Since the tests were conducted by the plaintiff on behalf of the defendants, all expenditure incurred by him has to be refunded. The plaintiff is legally entitled for the same. The letter dated 15.11.1997 all masonry has to be done as per the agreement conditions
Clause 35.15.2 and 35.15.4. In the said para it is stated that the procedure to be adopted in conducting the tests and there is emphasis as to the necessity to conduct permeability tests for masonry blocks. The third defendant in his letter
dated 22.11.1997 has stated that permeability test may be conducted and
reimbursement for the items of work done will not be allowed till the quality of the work is rectified. The plaintiff was paid for the entire masonry constructed by him only after satisfying with the quality, but the expenditure on permeability tests was not refunded as contemplated by the third defendant.
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Therefore the plaintiff is entitled for an amount of Rs.10,14,000/- towards the expenditure incurred for permeability tests.
2(11).Further plaintiff claimed that due to floods in the month of
September and October, 1998 particularly on 13.10.1998 when there was an unprecedented rain, the water level reached beyond maximum flood level.
Even though the machinery and construction material was kept at safer level higher than the MFL, the flood level went beyond MFL, with the result CC mixers, winch oil, engines shuttering plates, scaffolding material, metal and sand washed out. Plaintiff lodged police complaint on 11.11.1998. The machinery that was washed out could not be traced by police, due to which the plaintiff has incurred loss to an extent of Rs.14,39,000/-. As per clause 50 of
P.S. to APSS, the Contractor is not liable for any loss or damage occasioned by or arising out of acts of god and in particular unprecedented floods. Therefore, the plaintiff is entitled for the said amount.
2(12).Further plaintiff claimed that he is supposed to get the material from specified quarries. Approach to quarries was laid and indicated by defendants. But due to unprecedented rains and flash floods, the approaches laid by the plaintiff on the shorted route got submerged for a quite long time.
There was no scope for receding of flood water. Since time was running out, the plaintiff had to search for an alternative. Hence he had to get the material from longer routes for which he has incurred Rs.50,000/-.
2(13).Further plaintiff claimed that he paid advance to M/s Bygging
India for slip form method to speed up work in a sum of Rs.4,00,000/-. The extension of time granted by defendants time to time was very short periods.
But they were not fulfilling their contractual obligations. In order to meet the target of time schedule, the plaintiff placed order with M/s Bygging India to place slip form centering, so that the piers can be raised faster than usual, for 11 which the plaintiff has incurred Rs.4 lakhs additional expenditure which has a loss to the plaintiff and he is entitled for the same.
2(14).Further the plaintiff claimed that as per the agreement only hard metal broken from local gutta quarry has to be used. But the Field Officers demanded that crushed metal should be used. This was conveyed form
Krishnamreddypalli Crusher which was near Ananthapuramu with a lead of 59
K.Ms. No Contractor will go in for a lead of 59 K.Ms at his risk and cost as against a lead of 6 K.Ms. provided in the agreement without any insistment from the Officials. For compliance of the insistment of the officials, the plaintiff has incurred an additional expenditure of Rs.2,50,000/-. Hence he is entitled for the same.
2(15).Further case of the plaintiff is that, as per Cl.2.15.1 at page 1 of the agreement, the Contractor has to pay Sales tax on certain items wherever payable and no separate payment on the account shall be paid by the
Department. Cl.3.7 at page 22 of agreement stipulates that the rates quoted in
Schedule-A shall be thorough rates for finished works inclusive of all incidental and contingent charges. In terms of the above clause, the Contractor was to make a provision in his rates for payment of sales tax on the items wherever payable. The sales taxes payable by the Contractor are Cement, Steel, Petrol,
Diesel and all other consumables. All the material was received at site only after the sales tax is paid. Cl.3.18 at page 23 of the agreement states that
APGST at a flat rate of 4% for the aggregate amount of bills will be recovered as per Sec.5F, 5C 5M of APGST Act. This clause can be made applicable only where there is provision for the sanctioned estimate for sales tax. As long as no such provision is there in the estimate, the question of any recovery does not arise. Especially when plaintiff paid sales tax, but ignoring the provision containing Cl.2.15.1 and 3.7 a recovery of Rs.19,63,000/- is made applied by redundant clause. The clause as to recovery of amount is redundant as the taxes are supposed to be paid by the plaintiff. Therefore the recovery of 12
Rs.19,63,000/- done by the defendants is contrary to the agreement conditions. Realizing the mistake committed by the defendant, a provision for
Rs.8 lakhs was made in the revised estimates to release sales tax in accordance with Sales Tax Act passed in the year 2000. This provision was made in the revised estimates and approval was also obtained with a specific view to refund the amount of Rs.8 lakhs for the work to be done beyond 2000.
Even this amount was not paid back. The plaintiff is lawfully entitled for
Rs.19,63,000/- recovered by the defendants.
2(16).Further case of plaintiff is that, plaintiff made a provision for over head charges such as salaries of technical, non-technical staff, agents,
Watchmen, Accountant, Crew and Office contingencies for a period of one year (period of tender). The execution of work was prolonged for additional period of three years which was never expected. It has become absolutely necessary to continue all the establishment and incurred additional expenditure for a period of 34 months. Monthly expenditure of Rs.1,00,000/- was incurred on the following for 34 months. One Graduate, Engineer, One Diploma holder
Engineer, 2 Non-technical agents, 2 Nos. of watchmen, one Accountant, 5 Nos.
of Crew. These amounts are to be paid by the defendants which are to a tune of Rs.34,00,000/-.
2(17).Further the plaintiff claimed that as per Clause 3.7 at page 7 of the agreement seignorage charges in respect of material used shall be borne by the Contractor. Accordingly a provision was made in the agreement rates.
While obtaining the material, the quarry owner collected seignorage and delivered material. The defendants recovered Rs.1,90,140/- towards said seignorage from the bills and the plaintiff is entitled for the same. Further plaintiff claimed that all the several amounts claimed by him were not paid time to time which made him to borrow additional finances from other
Financiers with huge rate of interest. Therefore, to compensate the plaintiff 13 from the said loss, he is entitled for Rs.55,00,000/- and the defendants are liable to pay the same.
2(18).Further claim of the plaintiff is that he did not do any work gratuitously and he has done all lawful works, hence he is entitled to recover all the amounts claimed in the suit. The plaintiff suffered loss due to breach of contract by defendants. He is entitled for damages in terms of Sec.73 of
Indian Contract Act. The legal notice got issued by the plaintiff in terms of
Sec.80 CPC did not receive any response. Therefore, the suit is filed for necessary relief.
2(19).In nutshell, the claims made by plaintiff are as follows:
1. Actual expenditure incurred during the Rs. 1,41,93,891-00 extended period of contract
2. Securing of site 1,00,000-00
3. Compensation paid to Pattadars 1,00,000-00
4. Advance paid to labourers 3,00,000-00
5. Cost of admixture 6,16,000-00
6. Under utilization of Machinery & Equipment 24,00,000-00
7. Conducting of permeability tests 10,14,000-00
8. Loss due to floods 14,39,000-00
9. Extra lead during the period of flood 50,000-00 10 Advance paid to M/s Bygging India Ltd., for 4,00,000-00 expediting the work 11 Expenditure incurred for crush material 2,50,000-00 12 Refund of Sales tax 19,63,000-00 13 Over head charges (extra wages to labour 34,00,000-00 etc.) 14 Seignorage charges 1,19,140-00 15 Loss sustained due to non-payment 55,00,000-00
TOTAL Rs. 3,19,16,031-00
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3.All the defendants are represented by Government Pleader. Written statement was verified by third defendant and the same was adopted for defendant Nos.1 and 2.
3(2).The case of defendants is as follows:
Allegations made in the plaint as to non-cooperation by defendant
Nos.2 and 3 in execution of the work is incorrect. The department has taken much initiation for due completion of the work. The plaintiff could not procure adequate number of workmen and machinery to carry out the work in accordance with the schedule, even though the plaintiff was provided with adequate finance in the form of mobilization advance. Regarding approach to the quarry of materials, a reply was given to plaintiff by third defendant and it was informed that foundation of the spillway was completed by October, 1996.
The work entrusted to plaintiff was started during February, 1997. The gap of time between entrustment of works is only 4 months. The earlier agency utilized all materials such as stone, metal etc. from the specified quarries. The other agencies who were entrusted with the construction work of left side and right side of MOF dam have utilized the material from the same quarries. The allegation that the department did not supply drawings for Block-10 is not correct. The plaintiff for his own reasons and convenience did not take up the construction in Block No.10 to keep the level of Block-10 at low level, so as to allow the water in flood seasons without hampering the work in other blocks. A letter dated 15.11.1997 was addressed to plaintiff to collect drawings and take up the work soon after the receding of flood water. The plaintiff did not act prudently and department is not responsible for the delays. The other two agencies to whom the work was entrusted were maintaining the progress of work. The plaintiff was aware at the time of tendering that he has to execute the work along with other agencies under mutual co-operation. There were no hindrances to the plaintiff by other agencies as alleged by him. The Geologist report is no way connected to the work agreed to be done by the plaintiff. Time to time instructions were issued to the plaintiff following the instructions of 15
Chief Engineer, Medium Irrigation, Hyderabad. It was clearly mentioned in every item of Schedule-A of the agreement. The plaintiff is trying to cover up his lapses under lame excuses. Whenever situation warranted, extension of time was granted on the requisition of the plaintiff depending upon the merits of the context. Whenever deviations are inevitable, the Contractor has to co- operate and comply with the deviations and execute the work properly. It is the bounden duty of the Contractor to execute the supplemental items. Some time it happens that payment of bills could only be made on approval of deviations and supplemental items by competent authority. Sometimes procedural delays may occur which may result in delayed payment of bills to the Contractor. But in case of plaintiff delay of any worth has not occurred barring one or two situations that too for two or three months only. Out of 32 bills, there was hardly normal delay for two bills only.
3(3). Further case of defendants is that the earlier agency executed the work was paid upto EL+363.00 M level. All amounts including deposits due to him were cleared only after clearing the site. Hence accumulation of silt and stones by the time of plaintiff commencing the work is not correct. There is no possibility of accumulation of silt and stone during the period September, 1996 to February, 1997 on spillway portion. The allegations contra made by the plaintiff are incorrect. In the agreement it was clearly mentioned vide item
No.1 of the Schedule-A, the specifications with which the plaintiff has to execute the work. When specifications are clear un-necessary correspondence is resorted to by the plaintiff. The plaintiff was informed that he has to execute all supplemental items since the contract is a Lumpsum contract. The incidental and contingent works need not be contemplated in the agreement.
The drilling, grouting and permeability tests are not new to the work. The contractor has to procure men, machinery and material necessary for completing the work. The plaintiff could carry out work block by block and he could execute usual civil work in the block on which drilling, grouting and permeability tests are already conducted without consuming much time. The 16 supplemental work accepted by the plaintiffs suggests the will of the plaintiff to do the work at offered price and he did not register any protest in this regard.
3(4).Further case of the defendants is that, the suit contract work has to be executed along with fixing up of mechanical parts simultaneously. But the progress of civil work was not hampered due to non-execution of mechanical works as claimed by the plaintiff. The allegation of the plaintiff that the work was held up from January, 1998 to November, 1998 is incorrect.
During January, 1998 to December, 1998 substantial amounts are paid for the work executed by the plaintiff.
3(5).The suit contract work was of magnum nature and entrusted to him as he was a Class-I contractor. Further it is a lumpsum contract. The contractor is bound to execute supplemental, incidental, essential and inevitable items during the execution of main work. The work of construction of walkway bridge and bucket portion in three blocks 10, 11 and 12 is agreed with the free consent of the plaintiff. Extension of time was granted to plaintiff as per Clause 59 to P.S. to A.P.S.S. depending upon the merits and in the interest of completing the work that too on unconditional request of the plaintiff. Considering the quantum of balance work, the time was granted.
The plaintiff could not adhere to the time schedule. Instead of working in positive way, the plaintiff dodged the matter and caused delay in execution of the work. The delay can be attributed to the conduct of the plaintiff but not to the defendants. The plaintiff was paid for all items of the work executed by him as per the agreement conditions. The plaintiff did not evince proper interest during the course of execution of the work. He was instructed orally and in writing number of times to mobilize adequate number of men and material, but he did not care to follow the instructions. The allegation that payment was not made for drilling and grouting is not correct and the plaintiff was paid for drilling work but payment for grouting which was an additional item, it could 17 not be paid until supplemental agreement was concluded by the plaintiff. After concluding the supplemental agreement payment was made to the plaintiff.
3(6).Further case of defendants is that, the allegation of plaintiff that various works in the surrounding areas were allotted to other Contractors with high premium is not correct. The plaintiff was entrusted with the suit contract work at higher rate tender premium of 37.52% as against the tender percentage of 48.91% which is mutually agreed by both the parties over estimated contract value.
3(7).Further defendants claimed that in respect of the cement, the estimated cost is Rs.2,470/- M.T. and the tender rate is Rs.3,400/-, the plaintiff‟s assured price is Rs.3,000/- per M.T. which shows that plaintiff was paid Rs.400/- per M.T. over and above his assured price of Rs.3,000-. In all towards the cement the plaintiff has consumed 8526-00 M.Ts on the work, the amount paid to plaintiff comes to Rs.34,10,400/- above the assured price.
3(8).In respect of steel as against the assured price of Rs.20,000/- per
M.T., Rs.1400/- was paid in excess per M.T. and in all Rs.4,01,800/- has been paid above the assured price. Plaintiff‟s contention that he is entitled for escalated price is not tenable. The plaintiff is entitled for agreed rate but not the enhanced prices. The absence of the plaintiff and lack of control over the working staff is the cause for delay payments were made to plaintiff as soon as the work was over and measurements are recorded.
3(9).Further case of defendants is that, the allegations as to pattadars of surrounding lands obstructing the plaintiff for carrying the material from quarry and plaintiff paid lakhs of rupees to the said Pattadars is false and plaintiff never informed the same to the department. The other agencies who are carrying out the material never made any such complaint. The department has been co-operated with the plaintiff at all necessary times and allegations 18 contra are false. The earlier agencies who have done the work are paid. The payments is made only after the clearance of the site. Therefore, the allegation of the plaintiff that the site was not cleared is false.
3(10).Further defendants claimed that it is the duty of the plaintiff to collect drawings for Block-10 and complete the work. The department was always ready with the drawings and the same was intimated to the plaintiff.
The allegation that amount is not paid for permeability test is false. The entire amount was paid to the plaintiff. All amounts are paid to plaintiff in respect of main and supplemental agreements. The extension of time was on the request of the plaintiff/contractor to facilitate him to complete the work and the same will not give right to plaintiff to demand money by referring to variation in prices etc. Therefore, the defendants are not liable to pay any extra amount or compensation to the plaintiff.
3(11).Further case of the defendants is that, the problems put forth by the plaintiff are baseless and motivated. The procuring of labour, finance, material, machinery etc., is the duty of the contractor and the defendants are nothing to do with the said difficulties. It is the duty of the plaintiff to procure adequate machinery and safe guard it. The plaintiff ought to have resorted to insurance to prevent the damages to the machineries covering fire, theft etc., reasons. Further the defendants claimed that the plaintiff was never insisted to use the crush material. The plaintiff procured HBG metal of required size for laying CC. The revised estimate is approved with the consent of the plaintiff and the same was sanctioned in G.O.Ms.No.60 dated 23.3.2001. The allegations contra and claim in that regard is not maintainable.
3(12).With regard to sales tax, the defendants are entitled for recovery of 4% as per the agreement conditions Cl. 3.18, but the department has recovered only 2.1% as per the prevailing rates. The other claims of the plaintiff as to over head charges, seignorage charges are not tenable. Further 19 the claim of the plaintiff for Rs.55,00,000/- towards the loss and non-payment of amount by defendants is untenable. The claims made by the plaintiff are baseless, excessive and the defendants are not liable to pay any amount.
4. Rejoinder/additional pleadings are filed for plaintiff and contentions of plaintiff under rejoinder are that, all preliminary specifications of APSS shall form inseparable conditions of contract. The variations in quantities cannot be more than 10%. In the present case, the value of work done is Rs.1200 lakhs, but the measurement is recorded at Rs.936 lakhs as against the contract value of Rs.753 lakhs. The variation to an extent of payment made is around 25%.
Hence quantity in Schedule-A are beyond approximation. The preliminary specification Nos.11 and 12 may provide the clause reserving right of defendants to increase or decrease the quantity, but the change shall not be in over all scope of the work. The variation in the instant case has changed the scope of the work (emphasis is added). The defendants are liable to pay the suit amount in view of the substantial variations. All the allegations made in the written statement are not correct. The handing over of site as claimed by the defendants is not correct. Merely on payment of mobilization advance, work cannot commence. No effort was made by defendants to acquire the quarries from the pattadars by paying compensation and laying approaches to quarries through patta lands. The assertion made by the defendants that earlier work foundation of spillway was completed by October, 1996 is false. It was actually completed during the year 1994. The payments were made in the year 1996 to the previous contractor and defendants are trying to convince the date of payment is the date of completion which is incorrect. There is clear gap of three years from the previous work.
4(2).Further the plaintiff claimed in the rejoinder that the defendant ought to have supplied the drawings by the time of signing the agreement. The assertion that the contractor has to collect the drawings is not correct. The defendant No.3 should send the drawings with a covering letter. Even 20 according to the statement of the defendants, a letter was addressed on 15.11.1997 requiring the plaintiff to collect drawings which indicates there was delay of 9 months after concluding the agreement. When the period for completion of the agreement is 12 months, supplying drawings after completion of 9 months shows that there was delay on the part of the defendants.
4(3).Further, in the rejoinder plaintiff claimed that generally there are two types of contracts, one is piece work contract and another is lump sum contract. In respect of lump sum contracts, time is the essence of the contract. There will be penal clause resulting in forfeiture earnest money deposit. The suit contract is a lump sum contract. In view of the vigor of the lump sum contract there shall not be any interference of other contractors or department when execution is in process. The defendant should have concluded the agreement with the plaintiff only after the other agencies on either side completed their contract work. The defendants never informed the plaintiff about doing work together in co-operation and co-ordination with other contractors and such stipulation is not there in the agreement. The defendants suppressed the material issues. The assertion of the defendants that Geologist report is no way connected to the work is false. There are standing instructions from the Government to all the officers‟ incharge of projects not to lay foundation unless and until the foundations are cleared by the Geologist.
The Geologist cleared the foundation only during July, 1997, which is four months after signing the agreement.
4(4).Further, the plaintiff in rejoinder stated that whenever any deviation occurs by way of excess quantity or a new item which is not covered by the agreement has to be executed a supplemental agreement shall be signed by both parties. Before taking up such item there is condition laid down in the agreement or in A.P.S.S that such item can be executed even without supplemental agreement. The plaintiff on many occasions obliged the 21 defendants in executing certain works without supplemental agreement, thus extended maximum co-operation. Having got deviations, variations etc., executed without any agreement, the defendants did not bother to make payment for such items by concluding supplemental agreement. The defendants mischievously taking the final payment to earlier Agency made in
November, 1996 as a period of conclusion of Contract, but that is not correct and the work of earlier contractor was completed by January, 1994 and the payment was made in April, 1996. Therefore, the defendants are not entitled to take the date of payment. However, from the date of completion of work if time is counted till the date of agreement with the plaintiff, there was more than 2 ½ years time, which had contributed for accumulation of silt, stones etc., 4(5).Further, the plaintiff claimed that the allegation as to the plaintiff making unnecessary correspondence with the defendants is not correct. When the earlier Agency did face concrete with M.20 concrete and when the suit contract providing M.15 concrete, clarification was sought. If the defendants were clear, they could have directed the plaintiff to execute the work as per agreement, but they made a lot of correspondence with superiors and they have taken considerable time for clarifying the said issue. Therefore, the correspondence made by the plaintiff cannot be considered as unnecessary.
There is no denial of the work relating to drilling, grouting and permeability tests undertaken by the plaintiff in the masonry level at + 366.00 and + 373.00. Therefore, the entitlement of the plaintiff for the amount claimed under the said head need not be doubted and the plaintiff is entitled for the payment in terms of Sec.70 of Indian Contract Act.
4(6). Further, the plaintiff claimed in the re-joinder that the assertions of the defendant as to the fixation of mechanical parts and civil work shall be done simultaneously at certain levels. The suit contract is for doing civil work, but not fixing of mechanical parts. The defendants could have taken up the 22 work of fixation of mechanical parts either by the Department or through some agency. But there was long delay from January, 1998 to November, 1998 from the end of the defendants in respect of fixation of mechanical parts, which has made the plaintiff to suspend the work to suffer loss.
4(7).Further, the plaintiff claimed that even according to defendants the walk Way Bridge is a supplemental item, not covered by the agreement.
For performing the same, the plaintiff has to procure additional men, material apart from finance. All these things have contributed for the delay. The defendants extended time due to entrustment of various supplemental items, all the allegations made against the plaintiff are not correct. If there was bad workmen ship and delay from the end of the plaintiff, the defendants should have issued notice and imposed some penalty. Nothing is done. On the contrary, time was extended and supplemental works are entrusted.
Therefore, the allegations made against the plaintiff shall be considered as false.
4(8). Further, the plaintiff claimed in the rejoinder that the allegation of the defendants that plaintiff is not entitled for escalation prices and he ought to have visualized time is not correct. If the work entrusted could have been completed within 12 months, the defendants stand is correct. In view of entrustment of supplemental works, the time was extended. The rates were quoted considering the time that may be taken for the work. But, in view of extended period, the plaintiff is entitled for the escalated prices and for payment of actual expenditure incurred during the extended period of the remaining quantities of the agreement.
4(9).Further, the plaintiff claimed in the rejoinder that the assertions of the defendants as to payment of price for cement and steel at excess amount is false, what has been agreed was paid. The estimation was done at low level by the Department and the price was quoted by the plaintiff considering the 23 possible hike in prices, what has been quoted and accepted was paid.
Therefore, there was no mercy or grace on the part of defendants in paying the amount agreed.
4(10). Further, the plaintiff claimed in the rejoinder that as per his information even the earlier contractor made certain inevitable payments to the pattadars of the land of quarries and also pattadars of access/road, the compensation paid was crop compensation. Absence of claim by earlier
Contractor is not a ground to refuse the claim of the plaintiff.
4(11).Further, the plaintiff claimed in the rejoinder that the work in
Block 10 could not be commenced along with other Blocks as this Block was not included in the tender and in the agreement. The drawings were furnished in November, 1997 i.e., nine months after commencement of the work and three months before the expiry of agreed period. This Block was executed under supplemental agreement. The other allegations of the defendants that plaintiff has to collect the drawings is not correct and the defendants are supposed to send. Even with regard to conducting of tests the Government has to do it. But, since the Government could not mobilize the required machinery equipment and also skilled labour, it was done by the plaintiff on behalf of the defendants. The 3rd defendant in the letter dt.27.11.1997 stated that permeability test may be conducted and reimbursement for this item will not be done till quality of work is satisfied. Since, final payment was made for whole work only after satisfactory completion of the work, the payment towards permeability test shall also be made. There is breach of contract and faith by 3rd defendant in this regard.
4(12).Further, the plaintiff claimed in the rejoinder that the allegation of the defendants that the plaintiff done extra work with his own consent and without any compulsion by entering into supplemental agreement is not correct. All the works are done based on the instructions of the Department.
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The agreements cannot be entered in to with any protest. It is against the rules to conclude the agreement after executing the work. But, this irregularity is regular feature done by the defendants. All supplemental agreements were concluded only after executing certain items. The defendants are supposed to supply admixture free of cost. But, the plaintiff was made to incur the expenditure for a sum of Rs.6,16,000/-. The denial of this claim by defendants is not correct. With regard to loss of floods and taking insurance, the plaintiff had taken insurance for twelve months for the original agreed period. But the subsequent extensions are only for short period. Therefore, insurance could not be taken. Hence, the claim made for the loss of machinery items etc., is sustainable.
4(13).The plaintiff in his rejoinder further claimed that the expenditure incurred for extra lead during flood period and the expenditure incurred for payment to M/s BIGGYING INDIA LIMITED, BOMBAY are denying and the plaintiff is entitled for the same from the defendants. The contention of the defendants that they have recovered only 2.1 % as against 4% of sales tax is not correct. As per the stipulations of the agreement, 2.15.1 at page 21 the
Contractor has to pay sales tax wherever payable. Accordingly, the plaintiff incurred the same and procured the material after paying sale tax. Therefore, any further recovery is not justified. Subsequently, the defendants realized the mistake made provision in the revised estimates to release the amount.
Though the revised estimates were approved, the amount of sales tax recovered was not released which is not correct and an amount of
Rs.19,63,000/- recovered from the plaintiff towards sales tax shall be returned to the plaintiff.
4(14).Further, the plaintiff claimed in the rejoinder that the denial of the plaintiff‟s claim for over head charges by defendants is incorrect. Likewise the denial of the defendants with regard to entitlement of the plaintiff for seignorge charges and damages for the loss suffered by the plaintiff or all 25 unsustainable and the work done by the plaintiff is more than Rs.1200 lakhs, which is in excess by Rs.450 lakhs. Therefore, amount is claimed in the suit along with compensation for mental agony, loss of reputation and financial loss etc.,
5.Additional Written statement is filed by the defendant No.3 after the rejoinder denying all the assertions made in the rejoinder particularly referring to P.S.11 of A.P.S.S that the defendant No.3 is reserved right to decrease or increase the quantity of work. The plaintiff never raised any sort of objection during the course of execution of work. If the plaintiff has raised objection, the defendants would not have entrusted the extra work to the plaintiff. While submitting representation for extension of time, the plaintiff has given written consent that he will not claim any compensation for the extended period. It is the duty of the plaintiff to inspect the site and quarry.
The payments made to the plaintiff or enclosed separately in the form of statement as per the agreement condition Cl.33.15.3. The plaintiff should conduct permeability test for constructed masonry to prove its permeability.
The defendants are not responsible for variation of rates. Regarding ad- mixture plaintiff should follow agreement condition Cl.31.1.3. The defendants never insisted for use of Admixture, crushed metal, slipen centering etc.,
Further, as per the agreement conditions, it is the duty of the plaintiff to procure sufficient machinery, labour etc., to complete the work. As per Cl.50 of A.P.S.S, the plaintiff has make his own arrangements of Insurance against fire, theft etc., Hence, the defendants are not liable. The plaintiff is not entitled for any relief.
6.On the strength of pleadings, the following issues are settled by my learned predecessor for trial:
1.Whether the plaintiff is entitled to recover the suit claim?
2.Whether the suit claim is barred by limitation?
3.Whether the interest claimed by the plaintiff is excessive?
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4.Whether there is no cause of action as pleaded by defendant?
5.To what relief?
7.During trial, on behalf of the plaintiff, the plaintiff has taken witness stand as P.W.1 and on his behalf one Vijaya Bhaskar said to be the
GPA Holder of plaintiff and assisted the plaintiff as Manager in getting the work executed by physically present at the site was examined as P.W.2 and T.Raju labour contractor was examined as P.W.3 and one Veerete Peeru Naik, said to be a pattadar, who objected the plaintiff for using the lands as access to reach the Quarry was examined as P.W.4.
8.On behalf of the defendants, one D.S.Prasad Executive Engineer of Irrigation Dept., who was said to be incharge of spillway work of
Yogivemana Bridge was examined as D.W.1 and one H.Govindaiah, Executive
Engineer, IB Division, Anantapuramu was examined as D.W.2.
9.Further, the plaintiff got Exs.A.1 to A.110 documents marked on his behalf and Defendants got Exs.B.1 to B.26 documents marked on their behalf.
10.Extensive arguments are advanced reiterating the respective pleadings and the evidence of the witnesses in almost five spells.
11.The learned counsel for the plaintiffs argued that the GPA Holder of the plaintiffs who worked as Manager on behalf of the plaintiff in execution of the suit subject work is examined as P.W.2 and his evidence is very clear.
Through P.W.2 Exs.A.6 to A.109 documents are marked. P.W.3 a labour contractor and P.W.4 a ryot/cultivator supported the case of the plaintiff and they have endorsed the validity of Ex.A.106 and A.104. The delay in execution of work is attributable to the conduct of the defendants. The schedule of the work is from 15.2.1997 to 14.2.1998, whereas the work was actually 27 completed on 30.09.2000. It shows that there was delay of two years seven months. Ex.A.9 is the work done certificate, dt.16.09.2002 issued by the 2nd defendant, which confirms all the aspects. Exs.A.10 to A.17 are the documents relating to extension of time for completing the work. The delay was caused on account of;
(i)The work done by previous contractor was not up to the mark.
(ii)There is long gap of time between completion of work by previous contractor and commencement of work by the plaintiff. Certain portion of work had to be re-done.
(iii)Drawings are not furnished along with agreement, particularly, relating to Block No.10.
(iv)Admixtures are not provided.
(v)Electro mechanical work required to be done by another agency was not completed, which hampered doing of civil work.
(vi)Concrete work could not be decided by the defendants in time.
(vii)Payments for the work done are not released in time as per the terms.
(viii)There was objection by the pattadars and they did not allow access through their fields.
(ix)Government failed to acquire land for laying approach to the
Quarry from the work site.
(x)Revised drawings for grove system were drawn and given on 2.6.1998.
(xi)There were floods which caused delay and around 121 working days were lost on account of floods.
(xii)There was epidemic of Malaria on account floods which caused several labour to leave the place in panic condition.
(xiii)Supplemental items of work and additional works were awarded.
11(2). He has further argued that, there is necessity to refer the agreement conditions vide Ex.A.98 and Supplemental agreement conditions 28
Exs.A.85, A89 and A91 and that there are several admissions by D.W.1 as to receiving of various letters addressed by plaintiff. Floods, necessity of
Geologist report, entrustment of additional work, entering into supplemental agreement, taking of SS rates of the year 1995-1996 in respect of suit contract and admissions of D.W.2 as to non production of certain documents like letters addressed by the plaintiff to the defendant, test registers of permeability, correspondence for site visit/inspection of Superintending Engineer, standard schedule rates pertaining to 1995-1996, 1996-1997, 1997-1998, 1998-1999, 1999-2000 and 2000-2001. Claim wise he has argued substantiating the merits in the claim of the plaintiff.
11(3). By addressing issues, he has claimed that the cause of action has arisen on 15.2.1996 when the agreement was entered into. The possession of site on completion of work was handed over on 30.09.2000 and Sec.80 CPC notice dt.12.8.2001 was issued and the suit was filed on 29.9.2001.
Therefore, the suit is in time. He has further submitted that the cause of action would arise only after completion of work i.e., 30.09.2000 and after payment of the final bill amount by the defendants on 31.3.2001 which amounts to part payment, the suit filed on 29.9.2001 well within time. With regard to claim of interest, he has submitted that the suit transaction is a commercial transaction. Therefore, the plaintiff is entitled for 24% interest in terms of Sec.34 of Civil Procedure Code. Usually banks are charging interest at 24% p.a., in respect of commercial loans. Therefore, the plaintiff is entitled for the same and there is cause of action for this suit. Therefore, all the suit claims must be held infavour of the plaintiff.
12. Per contra, the learned Govt., Pleader submitted that the suit is barred by time, either from the date of agreement or from the date of time fixed in 29 the agreement and the amounts are received by the plaintiff without any protest and had there been loss to the plaintiff and had there been any difficulty, he should have done the work to the extent of agreement stipulations without accepting the additional work. But, having accepted the
additional work and received the amounts agreed to be paid, now the plaintiff
cannot make any tall claims and the amount claimed under various heads in the suit is not sustainable in law and on facts and the suit is ill motivated to make wrongful gain and to knock away whatever the plaintiff can get and the suit is speculative in nature. Therefore, deserves dismissal with heavy costs.
13. Perused the pleadings and evidence of both sides carefully.
Thoughtful consideration is given to the arguments advanced. Findings of this court issue wise are as follows:
14. Issue Nos.2 and 4 are touching the route of the case and the very entertainability of the matter before this court. Therefore this court finds that it is desirable to consider Issue Nos.2 and 4 at first instance.
Issue No.4: Point relating to Cause of Action:
15. As per the pleadings, the cause of action for the suit is, plaintiff submitting the tenders and awarding of work/contract to the plaintiff and entering into the work contract/agreement on 15.2.1997, entrustment of
additional work in the form of supplemental agreement, performance of work
by the plaintiff, non-payment of amount time to time by the defendants, extension of time for performance of the obligations, lapses of defendants, issuing notice U/s 80 CPC are the cause of action apart from others like plaintiff incurring additional expenditure if any etc. The defence of the defendants is that there is no cause of action for the suit. Hence the present issue came up for consideration. As per law and settled practice, the plaint must disclose cause of action. Truth or otherwise of the cause of action is 30 different. In the present case page 28 of the plaint is giving the details of cause of action in nutshell and in the earlier paragraphs the plaintiff has mentioned various factors like entering into contract/agreement, the purpose of obligation, hindrances in the process of performance etc., Therefore the plaint filed need not be faulted for want of cause of action. There is no dispute about the awarding of contract to the plaintiff, extension of time for performance, entrustment of additional work. The dispute is with regard to whether the plaintiff has incurred the additional expenditure claimed and whether the plaintiff is entitled for damages and whether the plaintiff is entitled for a money decree for the amount claimed under various heads. All these aspects are the matters for determination under issue No.1. But to the extent of existence of cause of action, this court unhesitatingly concludes that there is clear cause of action for the plaintiff to file and prosecute the present case.
Issue No.4 is accordingly decided in favour of the plaintiff and against the defendants.
Issue No.2: Point relating to Limitation:
16. In the present case, the point of limitation is a mixed question of law and fact. The plaintiff is claiming that the tender was awarded in his favour on 15.2.1997. Period of work is till 14.2.1998. There was considerable delay by the defendants in getting certain important obligations of the defendants discharged like approval of damages, attending of some mechanical items etc., and apart from that additional and extra work which was not contemplated in the original agreement was entrusted to him. Due to entrustment of the
additional work and extension of time by the defendants time to time, the
period of work extended for three years. Although the work could have been completed by 14.2.98 due to the extra work and delays caused by the defendants, the work was complete by the year 2001 and the payment was made lastly on 31.03.2001. Thereafter plaintiff has assessed all the loss and got issued legal notice on 12.08.2001. As there was no response for the oral demands. The suit is in time from the date of payment lastly made.
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17. The plaint was verified on 26.9.2001 and it was presented on 29.9.2001. The reason of entrustment of additional work and completion of
additional work, payment of final bill are taken as basis for the calculation of
limitation by the plaintiff. It was suggested to the plaintiff/PW.1 during cross- examination that between January, 1998 to November, 1998 there was payment of 9 bills. In the written statement there is denial about the entrustment of additional work. Further at page 7 of the written statement there is reference to payment of bill on 28.2.2000. During cross-examination of PW.1 nothing is elicited to entertain a doubt as to the limitation. It was not even suggested that the suit is barred by limitation. The circumstances under which the time extended is a different issue. Whether the extension of time entitles the plaintiff to claim additional amount is also a different issue which will be discussed under the other issues. Further DW.1 has admitted in cross- examination at page 12 that final bill was paid to the Contractor on 31.3.2001.
Supplemental agreement was entered into between plaintiff and second defendant on 24.3.2001 and there is a practice in the department to prepare and pay a final bill on conclusion of agreements and on completion of works entrusted to the contractor including additional, supplemental and deviations.
Upon considering the payments and also the extended period of time and the final payment made including legal notice got issued by the plaintiff in terms of
Sec.80 CPC demanding dues and also the presentation of plaint which is within three years from the date of conclusion of the work or last payment of bills, this court finds that the suit is in time and the objection as to bar of suit for want of limitation is not sustainable. Therefore Issue No.2 relating to bar of limitation is answered against the defendants and in favour of the plaintiff.
Issue No.3: Relating to interest claimed by the plaintiff:
18. In the plaint there is prayer for awarding interest on the suit claim at 18% p.a., In view of Sec.34 CPC wherever a suit is for recovery of money granting of interest for pre-suit period shall be governed by agreement between the parties and for the pendent lite period as per the discretion of the 32 court and for the post-decreetal period, the plaintiff will be entitled for interest on the decreetal amount at 6% p.a. unless the transaction is commercial in nature. In respect of commercial transactions, 18% rate of interest charged by the Banks on commercial loans. Careful reading of the suit claim suggests that the plaintiff claimed interest from the date of suit till realization at 24% p.a. In view of Sec.34 of CPC and as there is neither specific agreement for awarding interest nor a claim for the pre-suit period, the point relating to entitlement of plaintiff for interest for the pre-suit period need not be discussed. With regard to pendenti lite period and post-decreetal period alone this court is under duty to consider the entitlement of plaintiff for the interest at any particular rate.
The transaction is not commercial in nature.
19. Upon considering the nature of the work entrusted and its purpose and objective being the public welfare the contract cannot be considered as commercial and that, this court cannot award interest at 24% p.a. or 18% p.a.
even in the event of entitlement of plaintiff for any money decree. This court finds that the entitlement of plaintiff for interest on the amount if any awarded under the decree shall be at 6% p.a. that too from the date of suit till the date of realization. By considering the nature of transaction and all other incidental factors, this curt finds that the plaintiff is entitled for interest on the decreetal amount at 6% p.a. from the date of suit till date of realization (Pendenti lite and post-decreetal interest). Issue No.3 is decided accordingly in favour of the plaintiff.
20. Issue Nos.1 and 3 are inter-linked. Hence discussed together.
Issue No.1:
20 (2). To substantiate his entitlement the plaintiff relied on Ex.A.1 to
A.110 documents and evidence of PW.1 to 4 and the admission in the evidence of Dws.1 and 2.
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Ex.A.1 is articles of agreement with general conditions and some plans at the site etc.,
21. The plaintiff made claim under 15 heads. Claim No.1 is pertaining to the escalation of prices from the date of entrustment of work till the date of completion. Plaintiff attributed several latches to the defendants. Main among them are, delay in entrustment of work (2) Delay in supplying of drawings (3)
Delay in making arrangements for electro mechanical work (4) Delay in clarifying as to concrete work (5) Delay in releasing the bill amount. Further the plaintiff claimed that due to floods non-cooperation by pattadars to provide access and heavy rains as the causes for delay.
22. Ex.A.10 to A.17 are the documents disclosing that the time was extended. In all these letters/proceedings there is reference to Cl. 5.1 of general conditions. Cl. 5.1 of general conditions attached to Ex.A.1 provides that “the contractor is not eligible for any compensation for inevitable
delay in handing over the site either in full or part. In such case
suitable extension of time is granted after considering the merits of
the case.” In all documents Ex.A.1 to A.17 there is a mention that the time is extended without imposing liquidated damages as contemplated U/s 11.3.1 of general conditions. 11.3.1 of general conditions provides that “If the
contractor fails to complete the work within the stipulated period
(including any bonafide extensions sanctioned by the competent
authority without levying liquidated damages due to natural calamities
or circumstances beyond human control) he shall pay to the
Department liquidated damages for such delay not as a penalty at the
rate of one tenth of one percent of contract value per calender day for
the period of delay (ie.,) from the proposed date of completion
(including bonafide extension if any) to the actual date of completion,
subject to a maximum of 10% of the contract value.”.
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23.In this context Standards Specifications of engineering contract are referred and relied by defendants vide AP Standard Specification PS.No.58 and 59. They are as follows:
P.S.58: Date of commencement and completion:- On notification of possession of the site (ore premises) being given to the contractor by letter registered for acknowledgment as provided in paragraph to supra, he shall forthwith begin the work, shall regularly and continuously proceed with them, and shall complete the same (except for painting or other work which, in the opinion of the Executive Engineer, it may be desirable to delay) by the date of completion as defined in “Articles of Agreement”, subject, nevertheless, to the provisions of extension of time mentioned in the next clause. The contractor shall under no circumstances be entitled to claim any damages from
Government if he incurs any expense or liabilities to payment under the contract before the date of commencement defined above. The contractor shall have the right to withdraw from the contract and obtain refund of his security deposit is such intimation of handling over the site is delayed more than two months from the date of acceptance of the agreement by competent authority.
P.S.59: Delays and extension of time:- No claim for compensation on account of delays or hindrances to the work from any cause whatever shall lie, except, as hereinafter defined. Reasonable extension of time will be allowed by the Executive Engineer or by the officer competent to sanction the extension for unavoidable delays, such as may result from causes, which, in the opinion of the Executive Engineer, are undoubtedly beyond the control of the contractor. The Executive Engineer shall assess the period of delay or hindrance caused by any written instructions issued by him, at twenty five per cent in excess of the actual working period so lost.
In the event of the Executive Engineer failing to issue necessary instructions and thereby causing delay and hindrance to the contractor, the 35 latter shall have the right to claim an assessment of such delay by the
Superintending Engineer of the Circle whose decision will be final and binding.
The contractor shall lodge in writing with the Executive Engineer a statement of claim for any delay or hindrance referred to above, within fourteen days from its commencement, otherwise no extension of time will be allowed.
Whenever authorized alterations or additions made during the progress of the work are of such a nature in the opinion of the Executive Engineer as to justify an extension of time in consequence thereof, such extension will be granted in writing by the Executive Engineer or other competent authority when ordering such alterations of additions.
24.As per Ex.A.10 to A.17 it is clear that the time was extended for completion of the work time to time without levying liquidated damages. Right to levy damages in the event of delayed work was reserved in favour of the defendants. Since Ex.A.10 to A.17 are not reflecting that the damages are not levied it is understood that the extension of time is justified. But by taking aid of this plaintiff is claiming that the delay is attributable to the defendants and on account of delay he has sustained huge loss.
25.Ex.A.85 to 91 and A.100 are disclosing that supplemental agreements were entered into. Ex.A.85 is relating to supplemental work of slipway. Value of the work to be done under Ex.A.85 is referred as
Rs.14,56,548/-.
26.Ex.A.86 is another supplemental agreement the sub works designed under this agreement are formation of platform and approach road relating to slipway for transport of crane. The value of work entrusted under this document is Rs.4,22,967/-.
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27.Ex.A.87 is another supplemental agreement relating to formation of road etc ., the value of this work is shown at Rs.16,24,260/-.
28.Ex.A.88 is another supplemental agreement for Rs.1,60,970/-.
Likewise Ex.A.89 is another sub-work relating to laying of secondary stage concrete value of the same is Rs.64,32,559/-.
29.Ex.A.90 is relating to another supplemental agreement relating to reconstruction of bucket and value of which is around Rs.37,60,000/-. Ex.A.91 is letter addressed by Superintending Engineer, Irrigation Circle,
Ananthapuramu to the plaintiff transmitting the 5th supplemental agreement.
Ex.A.110 is another supplemental agreement for Rs.2,41,13,127/-.
30.When all these supplemental agreements are seen by the very nomenclature they suggest that they are supplemental to the main agreement.
When there are no specific terms as to the prices payable and when the agreements are styled as supplemental it can be taken without any doubt that the original terms of agreement will follow. Further, here is a case where plaintiff is a Class-I contractor dealing with the matter of crores of worth.
31. The learned counsel for the plaintiff relied on the following authorities.
1. M.S.K.Projects India (JV) Ltd., Vs. State of Rajasthan and another reported in 2011 (10) SCC page 573. In Para 38 of the judgment
Hon'ble Apex Court observed that in common parlance “reimbursement”
means and implies restoration of equivalent for something paid or expended.
Similarly compensation means anything given to make equivalent and the
Hon'ble Apex Court referred to a case Dwaraka Das Vs. State of M.P. Vide
1999 (3) SCC 500 = AIR 1999 SC 1031 that a claim by a contractor for recovery of amount as damages as expected profit out of contract cannot be disallowed on the ground that there was no proof that he has suffered actual loss to the extent of amount claimed on account of breach of contract.
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2. J.G.Engineers Pvt. Ltd., Vs. Union of India and another 2011 (5)
SCC page 758. Para 30 and 31 of the judgment which reads as follows:
30. As noticed above, the stipulated date for completion was
9.1.1995. The respondents granted the first extension upto
31.7.1995 without levy of liquidated damages, vide letter dated
24.8.1995. In fact the respondent had paid the escalation in
prices under Clause (10)(cc) up to June 1995. The contractor
was however permitted to continue the work without levy of
any liquidated damages, until termination on 14.3.1996. It was
only on 30.9.1999, after the contractor had submitted its
statement of claim on 17.4.1997, the respondents choose to
levy liquidated damages for the period 10.1.1995 to 14.3.1996.
In view of the finding of the arbitrator that the contractor was
not responsible for the delay, the contractor was entitled to
second extension from 1.8.1-995 also without levy of penalty.
In fact, having extended the time till 31.7.1995 without any
levy of liquidated damages, the respondents could not have
retrospectively levied liquidated damages on 30.9.1999 from
10.1.1995. Be that as it may.
31. We extract below the reasoning of the arbitrator for
grant of escalation for the work done from 1.8.1995 to
143.1996 under Clause (10)(cc) of the contract.
“The escalation upto July 1995 has been covered under Claim 1.
The respondent has not paid any further escalation beyond July, 1995, since the extension thereafter has not been granted and the contract was rescinded... The respondent has denied the claim as the escalation is payable only for the stipulated period and the period extended without levy of penalty. As I have already decided that the action of rescission of the contract and the action of levying the compensation/penalty under Clause (2) by the respondent is incorrect and the claimant was not responsible for the delay, the escalation for the total work done, automatically becomes payable”.
The High Court therefore committed an error in setting aside
the award in regard to Claim 5 on the ground that it violates
Clause (10) (cc of the Contract.
38
By referring to this observations the learned counsel for plaintiff submitted that the plaintiff is entitled for escalation.
(3) R.L.Kalathia and Company Vs. State of Gujarat 2011(2) SCC
400. In this authority the point relating to whether after a contract comes to an end by completion of contract work and acceptance of final bill in full and final satisfaction and after issuing no demand certificate by contractor can any party to contract raise dispute was considered. In this connection reference was made to an age old maxim necessitas, non-habet legum which means necessity knows no law and that a person may sometimes have to succumb to the pressure of the other party to the bargain who is in a stronger position is referred. Further in para 11, 12 the similar aspect was observed and in para 13 the following principles are mentioned.
(i) Merely because the contractor has issued “no-dues certificate”, if there is an acceptable claim, the court cannot reject the same on the ground of issuance of 'no-dues certificate”.
(ii) Inasmuch as it is common that unless a discharge certificate is given in advance by the contractor, payment of bills are generally delayed, hence such a clause in the contract would not be an absolute bar to a contractor raising claims which are genuine at a later date even after submission of such “no-claim certificate”.
(iii) Even after execution of full and final discharge voucher/receipt by one of the parties, if the said party is able to establish that he is entitled to further amount for which he is having adequate materials, he is not barred from claiming such amount merely because of acceptance of the final bill by mentioning “without prejudice” or by issued “no-dues certificate”.
(4). In a case between A.T. Brij Paul Singh Vs. State of Gujarat reported in (1984) 4 Supreme Court Cases 59 in para 9 of the judgment it is observed that where in a works contract, the party entrusting the work commits breach of the contract, the contractor would be entitled to claim damages for loss of profit which he is expected to earn by undertaking the 39 works contract. What must be the measure of profit and what proof should be tendered to sustain the claim are different matters. But the claim under this head is certainly admissible.
In para 11 of the Judgment it is observed by the Hon‟ble Apex Court that a party guilty of breach of contract is liable to compensate the plaintiff/contractor who executed part of the works and the contractor would be entitled to damages by way of loss of profit.
(5). In K.N.Sathyapalan (dead) by L.Rs and State of Kerala and another reported in 2007 (13) Supreme Court Cases page 43 in para 31 of the judgment, it is observed that in the absence of any prices escalation clause in the original agreement and any specific prohibition to the contract in the supplemental agreement, a party could have made a claim on account of escalation of prices. Further in para 32 it is observed that ordinarily parties would be bound by the terms agreed upon under the contract but in the event one of the parties to the contract is unable to fulfill its obligations under the contract, which has a direct bearing on the work to be executed by the other party, the arbitrator is vested with the authority to compensate the second party for the extra costs incurred by him as a result of the failure of the first party to live up to its obligations.
(6). In the case National Fertilizers Vs. Puran Chand Nangia
reported in 2000 (8) Supreme Court Cases page 343 (1) Civil appeal
No.1329/1995 in para 22 of the Judgment it is observed that, the concept of variation of the question of work is no doubt a common feature of works contract. This is because in a contract relating to major works, the estimates of work at the time of tenders are invited can only be approximate. But it was also realized that the power of employer to vary the terms relating to quantum of work cannot be unlimited.
40
By referring to the authorities referred above, the learned counsel for the plaintiff argued that all the claims made by the plaintiff are perfectly justified and plaintiff is entitled for the entire amount claimed in the suit.
32.Per contra, the learned Government Pleader for the defendants relied on the following authorities.
(1) Ramnath International Construction Pvt. Ltd., Vs. Union of
India and another reported in 2007 (2) ALT 59 (SC) in para 11 of the
judgment Hon’ble Apex court observed that, the delays are attributable to the employer or any delay for which both the employer or contractor are responsible and when the contract seeks or obtains extension of time on that account he will not be entitled to claim compensation of any nature on the ground of delay.
(2) In A.P.S.R.T.C., Hyderabad Vs. M/s SEW Constructions Limited
Engineers and Constructions and others in para 18 and 19 of the judgment it is observed as follows:
18. As per articles of agreement entered into between the parties,
Clause 59 of the Standard Preliminary Specifications forms part and parcel of the contract. Clause No.3 of the articles of agreement reads as hereunder:
(3) Time shall be considered as the essence of part of the agreement and the contractor hereby agrees to commence the work as soon as this agreement is accepted by competent authority and the site or premises is handed over to him as provided for in the said good conditions and agrees to complete the work within 18 months from the date of such handing over of the site (ore premises) and to Progress; subject never the less to the provisions for extension of time contained in Clause 59 of the standard preliminary specifications.”
19. Clause 59 of the standard preliminary specifications reads as hereunder:
“Delays and extension of time: No claim for compensation on account of delays or hindrances to the work from any cause 41 whatever shall lie, except, as hereinafter defined. Reasonable extension of time will be allowed by the executive Engineer or by the officer competent to sanction the extension for unavoidable delays, such as maybe result from causes, which, in the opinion of the Executive Engineer, are undoubtedly beyond the control of the contractor. The Executive Engineer shall assess the period of delay or hindrance caused by any written instructions issued by him, at twenty five percent in excess of the actual working period so lost.
In the event of the Executive Engineer failing to issue necessary instructions and thereby causing delay and hindrance to the contractor, the latter shall have the right to claim an assessment of such delay by the Superintending Engineer of the Circle whose decision will be final and binding. The contractor shall lodge in writing with the Executive Engineer a statement of claim for any delay or hindrance referred to above, within fourteen days from its commencement, otherwise no extension of time will be allowed.
Whenever authorized alterations or additions made during the progress of the work are of such a nature in the opinion of the
Executive Engineer as to justify an extension of time in consequence thereof, such extension will be granted in writing by the Executive
Engineer or other competent authority when ordering such alterations or additions”.
It is evidence form Clause 3 of the articles of agreement, that Clause No.59 of the standard preliminary specifications forms part and parcel of the contract. Coming to Clause 59 of the standard preliminary specifications. It provides that neither party to the contract shall claim compensation on account of delays or hindrances to the work for any cause whatever”. That delays and hindrances contemplated by Clause 59 included the stoppage, hindrance and delays on the part of the department as well is clear form the following sentence in the first part of the said clause viz., “the Executive Engineer shall assess the period of delay or hindrance caused by any written instructions issued by him, at twenty five percent in excess of the actual working period so lost”. Indeed, the second para of the clause also contemplates delays and hindrances being caused on account of the failure of the Executive Engineer to issue necessary instructions. In such a case, the claimant has a right to claim the assessment of such delay by the Superintending Engineer of the Circle whose decision will e final and binding on parties. The arbitrators having referred Clause 42 59 of the APDSS proceeded to ignore the same on the premise that the said clause does not bar the claimant to claim compensation for the work done beyond the agreement period due to defaults of the Corporation. Such a construction, in our considered view, is permissible. The reason being the only benefit conferred on the claimant, in the event of unavoidable delays either because of his fault or the Corporation’s fault, is extension of period for completion of the work entrusted under the contract.
There is no other construction possible by reading Clause 59. Indeed this issue fell for consideration Ch.Ramalinga Reddy’s case (1 supra), wherein it has been held that Clause 59 of APDSS bars grant of any compensation even if any delay in handing over the site. Once Clause 59 of the APDSS the claimant from claiming any compensation for the work done during the extended period of contract, the arbitrators have no jurisdiction to award compensation under Claim No.3. Further in para 21 it is observed as follows:
21.It is pertinent to note in this behalf that the claimant did not choose to terminate the contract on account of
Corporation’s delay in handing over the sites. He requested for extension of period of contract and completed the work. It is not the claimant’s case that by allowing him to proceed with the work after the expiry of the original agreement period, he expressed his intention to claim compensation on that count. Hence, the award passed by the arbitrators under Claim No.3 is bad in law and cannot be sustained and accordingly, the same is hereby set aside.
(3) In a case between K.Niranjan Vs. Osmania University,
Hyderabad rep. by its Registrar and others reported in 2010 (3) ALT
496 (D.B.) in para 12 and 13 of the judgment it is observed that, the terms of the contract between the parties are contemplating that the work will be carried out in accordance with the APDSS and Cl.59 of APDSS is a self- explanatory and it is clear from the said provision that wherever reasonable extension of time is granted, the contractor shall have no claim for compensation on account of delays and hindrances to the work from any cause. The expression delay or hindrance to the work from any cause whatsoever should be given broad meaning and the contractor who willingly accepted to do the work cannot be allowed to turn around.
43
By referring to all these authorities, the learned Govt. Pleader submitted that the claims made by the plaintiff are untenable and the contractor has willingly accepted the additional works and the terms agreed are binding on the parties. Final payment is made in accordance with what has been agreed.
Therefore, the suit is liable to be dismissed.
33.Applicability of Andhra Pradesh Detailed Standard Specifications to the contract in question is not in dispute. The main contention of the plaintiff is that, there is extension of time without imposing penalty which shows that the extension of time is justified and the delay is attributable to the defendants. Therefore, he is entitled for the claim made under the head of escalation of prices.
34.The value of the work entrusted under the original agreement is
Rs.7,53,70,360/- covered by Exs.A.1 and A.98. The value of the work entrusted to the plaintiff as additional work etc., under supplemental agreements covered by Exs.A.85 to A.89 is Rs.1,00,96,250/-. The summary is as follows:
1. Under Ex.A.85 the value of the work Rs. 14,55,548-00 entrusted
2. Under Ex.A.86 the value of the work Rs. 4,22,967-00 entrusted
3. Under Ex.A.87 the value of the work Rs. 16,24,206-00 entrusted
4. Under Ex.A.88 the value of the work Rs. 1,60,970-00 entrusted
5. Under Ex.A.89 the value of the work Rs. 64,32,559-00 entrusted Total Rs. 1,00,96,250-00
35. The plaintiff has agreed to perform the work entrusted under Ex.A.1 and A.98 for Rs.7,53,70,360/-. No doubt there is extension of time. The reasons for the extension like laying of passage, floods, disturbance by pattadar holders, supply of designs are referred. Except supply of some designs and setting up of mechanical equipment, the others are not attributable to the defendants. However considering the genuinity of the 44 reason for the delay, the time was extended. When the value of the original work and additional work covered by supplemental agreements are compared, the increase in the work can be arrived at 13% of the original work entrusted.
It is not the clear case of the plaintiff that only due to entrustment of
additional work there is delay in completion of the work entrusted to him. He is
referring to certain other factors.
36.The plaintiff claimed that for clearance of the earlier bill he was forced to accept the extension of work and quite often only on completion of the extended work the supplemental works are awarded. Therefore he has no occasion to deny or refuse to perform the additional work. In one way the plaintiff is claiming that he was under undue influence of the defendants because of his financial necessity and he has no other option also.
37.In this context it is necessary to refer to what were the prices taken as base for awarding contract and what are the prices by the time of execution of work and whether there is any difference in the prices particularly in the terms of standard rates prescribed by the Government department and it is also necessary to refer to the oral evidence of the witnesses examined
before the court relating to the reasons for extension of time, value of the
work entrusted, standard rates prescribed for awarding the work.
38.Ex.A.92 to A.97 are filed by plaintiff to show that what are the
Standard Schedule Rates prevalent for Ananthapuramu, Kurnool district during the years 1995 to 2001. Ex.A.92 is the SSR for 1995-96, Ex.A.93 is SSR for the period 1996-1997, Ex.A.94 is the SSR for the period 1997-1998, Ex.A.95 is the SSR for the year 1998-1999, Ex.A.96 is the SSR for the period 1999-2000 and Ex.A.97 is the SSR for Rayalaseema region for the period 2000-2001.
Ex.A.76, A.77, A.80 and A.81 the correspondence between Chief Engineer,
Executive Engineer, Superintending Engineer of the Engineering division shows that the work was done to the satisfaction of the Officials and revised 45 estimates are submitted, particularly in the context of difference in SSR rates from 1995 to 2000. Plaintiff as PW.1 stated that he submitted his tender basing on the SSR of 1995-1996 and he has received the final payment under protest the department did not pay correct amount. During cross-examination he has stated that he has inspected the site prior to tender and signed in
Ex.A.1 after going through the contents. He has kept one Mr. Vijaya Bhaskar (PW.2) for the execution of the work. He did not refuse to sign the agreement on the ground that the drawings of Block-10 are not attached. It is the duty of the contractor to attend the welfare and health of the workers. All the
additional works are done supported by the supplemental agreements
containing the details of work. He has no right to refuse additional work. He do not know the exact particulars of additional work for which payment was not made and PW.2 knows the same. Except in respect of 10th block the work was in progress for other blocks. From January, 1998 to November, 1998 he has taken 9 bills.
39.PW.2 was cross-examined at length. During cross-examination he has stated that he has worked as Manager for plaintiff. Only for purpose of the contract in the present case he was worked as Manager. He is not the signatory to the work agreement. He has maintained entire accounts of the contract about how many labours were engaged and how much payments were made etc., details. After completion of the work he has handed over the books to the plaintiff and he do not know whether the books are available with the plaintiff. The Site Engineers maintenance placement register which discloses day to day in the work. As per Placement register shown to him the work was started on 10.3.1997. It is the duty of the contractor to lay approach roads but the acquisition of land for roads is the duty of department. It was suggested to PW.2 that since the laying of road is temporary there is no necessity to acquire. There were 12 blocks of spillway. Drawing were furnished for all the blocks except Block No.10. There was no refusal by plaintiff to sign on the agreement till supply of drawing for Block-10. The plaintiff was not forced by 46 the defendants to enter into contract. Even before the commencement of the work the defendants released 10% of the contract as mobilization advance. He has denied the suggestion that the contractual terms will be effective till conclusion of the entire work including supplemental agreement. There is a provision in the agreement Ex.A.1 that the plaintiff has to carry additional connected works. However PW.2 stated that the additional work shall not exceed 10% of the original work. When it was suggested to PW.2 that the plaintiff had option to reject any direction to do unconnected work , PW.2 stated that 3rd defendant issued an order in writing that amount will not be paid unless all the work is including unconnected is done.
40.The evidence of Pws.3 and 4 is nominal in nature with regard to
PW.3 providing labour and receiving advance amount of Rs.4,50,000/- and amount was paid to PW.3 under Ex.A.106. The evidence of PW.4 is relating to receiving of amount of Rs.10,000/- for allowing passing of vehicles through his land.
41.DW.1 is one B.S.Pradeep, Executive Engineer he has stated that the plaintiff has submitted his tender with excess of 37.5% over the estimated rates basing on the SSR rates of the year 1995-96 and he has also stated that the plaintiff is bound to execute all supplemental works. During cross- examination he has stated that the work was completed on 10.1.2001. There are 6 supplemental agreements between plaintiff and defendant No.2.
Geologist clearances are not necessary to the suit contract work. Some of the times/clauses in Ex.A.1 are not applicable to the suit contract. Extension of time was granted to plaintiff for 8 times without imposing any liquidated damage. Ex.A.9 is the work done certificate copy issued by 2nd defendant to the plaintiff. The work was commenced by the plaintiff in the year 1997 and completed in the year 2001. There were floods for certain period during the
September and October, 1997, July,September, October and November, 1998 and also in June, 2000. The department has agreed to provide admixture but the admixture was not supplied by the defendants and it is not known whether 47 the cost of admixture is Rs.32/- per litre and he do not know the plaintiff has paid Rs.16,00,000/- for admixture. (emphasis is added) Entire case of the plaintiff was suggested to DW.1. At page 11 of cross-examination DW.1 admitted that additional work was entrusted to the plaintiff but with his consent and the said additional work might have contributed for the delay.
Supplementary agreement entered between plaintiff and 2nd defendant is dated 24.3.2001 and its value is Rs.2,41,13,127/- and final bill was paid to plaintiff on 31.3.2001. Ex.A.110 is the copy of supplemental agreement dated 24.3.2001. The department will prepare and pay final bill only on conclusion of the agreement for all the work including additional, supplemental and deviations. By the date of Ex.A.110 the works set out therein are already completed. For the purpose of payment of balance separate agreement is executed. If the department has called for fresh tenders in respect of the works under supplemental agreement, the estimates will be prepared taking into account SSR rates prevailing as on the date of tender. Ex.A.1 is a fixed agreement which is to be signed by successful contractor to whom work is awarded so also the supplemental agreements. It was suggested to DW.1 that no meetings were held for fixation of the terms for supplemental agreement.
DW.2 is Executive Engineer by name Hari Govindaiah.
42.With regard to variation in SSR rates a statement vide Ex.A.99 is exhibited by plaintiff. As against the SSR rates of the year 1995 there is increase of 10% during the year 1996-97 and by 1997-98 there was 21% increase and by 1998-99 there was increase around 31% in respect of mason and 44% in respect of manmajdor and by the year 1999-2000 the increase is around 52% in respect of mason and 74% in respect of manmajdor. Validity of
Ex.A.99 is one aspect. Why this increase in SSR prices at particular quantum is not put and elicited from defendants' witnesses is another aspect. But it is pertinent to note that the plaintiff has quoted more than 37.5% in excess of the SSR rates of the year 1995-96. Even according to plaintiff by the year 1998-99 there was increase to a tune of 31% in respect of mason I class.
48
What was the work done during 1997-98 and what was the work done during 1998-99. Likewise what was the work during 1999-2000 are all the relevant factors. The plaintiff has simply bifurcated the value of the work done by
February, 1998 and the value of the work done subsequent thereto. The
additional work awarded to plaintiff even according to his own version is
around Rs.2,41,13,127/- vide Ex.A.110. By the time of Ex.A.110 even according to the plaintiff the work was already completed. The plaintiff has signed on Ex.A.110. He has received the final payment under protest which is evident from Ex.A.8.
43.It is evident from the correspondence to some extent that some claim was made by the plaintiff with regard to escalation of prices even before the finalization of amount. Particularly at the time of entrustment of work relating to damage to bucket etc. Generally parties to the contract bound to the terms. When the terms are clear, they are more binding. Unless there is any scope for interpretation or there is any confusion, the binding nature of the terms is certain. Final payment was made on 31.3.2001. From Ex.A.8 particularly the seal and receive endorsement it can be noted that the protest letter Ex.A.8 was submitted in the office of Executive Engineer on 3.4.2001 two days after the receiving of final payment. When a party receives the amount and two days thereafter submits the protest whether the same can be considered as receiving amount under protest is one issue. The reasoning of plaintiff is that if protest was submitted earlier the defendants might have been held final payment. Hence, he has no option than receiving payment and submitting protest.
In the light of the above evidence, material and reasoning it is necessary to examine the entitlement of plaintiff for various claims.
49 (A) CLAIM.NO.1:
(i) Claim No.1 pertains to the claim on escalation on account of delays on the part of defendants‟ Department. The question remains as to whether the plaintiff is entitled for the escalation on account of delays on the part of defendants. The defendants in the written statement as also in their evidence contended that the plaintiff is not entitled for escalation in the light of the specific conditions set out in the tender notice and the agreement conditions Ex.A-98. There is no doubt that the tender notice conditions and the general conditions of contract form part of the agreement and are binding on the parties.
(ii) The following terms set out in Ex.A-98 would be relevant for the purpose of considering the sustainability of claim No.1 of the plaintiff.
Exhibit Page Condition Condition
A- No. No. Reads as follows 98 13 3.16 No escalation in rates will be paid and the contractor has to quote his rates taking into account the period involved for the completion of work -do- 43 22.1.10 No escalation in rates will be paid. The tenderer has to (81) quote the rates taking into account any variation in rates during the period of execution.
A perusal of the above conditions would show that no escalation rates will be paid and the contractor has to quote his rates taking into account the period involved for the completion of work. Now it is on record that as per the tender conditions and notice, the period of completion as envisaged by the defendants themselves was 14.2.1998. Therefore, when the contractor gave his quotation, he would have taken into account the escalation in rates/variation in rates during this period. A contractor can never imagine or estimate the variation rates in infinity. Whenever a contractor gives his quotation, it is not only based on the rates as on that date, but he has to taken 50 into account the expected variations within which the work is to be executed and completed. Therefore, these conditions would apply only in a case where the contract work could not be completed within this period. Moreover, in the present case it is to be noted that as per the terms and conditions of the contract as agreed to by D.W.1 that the contractor is required to execute whatever additional works are entrusted to him or ordered to be done during the course of execution of the work. The contractor in this case has executed the additional and deviation items of work as and when ordered. The
additional works cannot be said to be incidental in the context of agreement
terms. It is a matter of common knowledge that whenever there are small deviations and additional works which are incidental to the main works crop up during the course of execution of work, the contractor is required to attend these works also for which he can claim the amounts and Department can pay the amounts in terms of the original agreement itself. It is also relevant to note that the supplemental agreements have been executed after the completion of the respective work. The defendants are now trying to contend that as the plaintiff agreed to the terms and conditions as set out under the supplemental agreements Exs.A-85 to A-89 and Ex.A-91 (5 numbers) the plaintiff is not entitled for any amounts other than what is agreed to under the supplemental agreement. Here it is necessasry to refer the cross-examination of D.W.1 at (page-12) where under D.W.1 clearly admitted that unless the supplemental agreements are executed and completed, the payments would not be released. Non-execution of supplemental agreement would have resulted in withholding of release even the admitted amounts.
(iii) For a contractor to survive it becomes absolutely essential that the amounts are released periodically so that he can in turn meet the expenditure and pay the amounts to all concerned and carry out the works.
Exs.A-92 to A-97 are the SSR rates as applicable to the area to Kurnool and
Anantapur Districts for the period 1995-96 to 2000-2001 respectively (for each year). A comparison of the SSR rates would clearly show the 51 escalation on the standard schedule rates from time to time. The SSR rates for these districts are prepared by the Government of Andhra Pradesh,
Irrigation and Command Area Department, Irrigation Circle. Ex.A-99 is the statement prepared by the plaintiff for escalation of percentage statement over the year 1995-‟96 and 2000-2001. The correctness of this statement is not disputed by the plaintiff. The plaintiff had quoted its rates in excess at 37.52% over the estimate rates with SSR of 1995-96.
(v) There is no restriction in the agreement barring the plaintiff from charging the amounts on account of escalation for the period beyond the contract work on account of latches on the part of Department. The works which were never envisaged under the original contract and works which cannot be termed as either additional or incidental in the strict sense were got executed by the defendants department for which supplemental agreements have been executed upon conclusion of these works and on the eve of the preparation of the bill and payment thereon. In this context this court finds it proper to note that DW.1 admitted that whenever the department calls for fresh tenders they will prepare fresh estimates. In the present case if the department was called for fresh tenders in respect of the works under supplemental tenders they would have prepared estimates taking into account SSR rates prevailing as on the date of tender. The plaintiff is, therefore, entitled for escalation. Even in the observations in the authorities cited above are justifying the entitlement of the plaintiff for
additional payment on the ground of escalation charges particularly the
observations of Hon'ble Apex Court made in a case National Fertilizers Vs.
Puranchand Nangia reported in (2000) 8 SCC page 343 = AIR 2001 SC page 53 vide para 28 to 30 of the judgment. But the important point remains for consideration is, what is the quantum of amount the plaintiff can claim against the defendants on the ground of escalation. The plaintiff in the tender itself estimated the rates by considering the possibility of escalation.
The estimation was submitted by the plaintiff quoting the price 37.5% in 52 excess of the SSR rates prevailing in the year 1995-96. As already noted above, by the year 1998-99 there was increase of around 31% in the prices in respect of masionary and 44% in respect of manmazdar. Subsequently the same was increased to around 50%. The delays are not completely attributable to the defendants. Some times there will be procedural delays.
The argument of the plaintiff is that there was no option for him to refuse the additional work. But only on acceptance of the additional work the department used to award the previous work. Had the plaintiff stopped accepting the additional work for the second time or third time the bill of one time would have been stopped even if the version of the plaintiff is true.
But one after the other the plaintiff has accepted all the additional works entrusted. The average increase of prices for year appears to be around 9 to 10%. Then from the SSR rates of the year 1995-96 to the year 1999- 2000 there will be increase of around four times which may be around to 40 to 45% over the SSR rates of the year 1995-96. The plaintiff has already estimated the rates adding 37.5%. Then hardly there will be difference of 5%. But the plaintiff has calculated his claim adding the entire 50% of the increase from the prices quoted in the agreements. The contract is not completely in commercial in nature. The situation is not that there were delays on account of and with a motive of some commercial gain to the defendants. The plaintiff is claiming the amount on the ground of quasi contractual obligations. Then the principle that can be considered is what is the benefit to the defendants and what was the loss to the plaintiff. The principle of 'quantum merit' suggests that to the extent of enrichment the party benefitted shall reimburse to the party on account of whom the enrichment is caused. Either actual loss or enrichment is around 5% to the respective party. Even if the work was done by 1995-96 as per the SSR rates of 1995-96 they include the profit a contractor will get. Therefore, the prices taken into consideration of any particular year would include the profit also. Likewise even the escalation added would include the profit. When escalation is accepted and the SSR rates of any particular period are 53 considered they would include the profit also. The plaintiff may claim that he had completed the work by the year 1997 as agreed, he would have gained more profit. May be by the year 1997 if there is increase of price around 15% by quoting 37.5% increase the plaintiff would have gained. But that cannot be the basis to consider a claim when equitable considerations are the guiding factors for considering a claim on quasi contractual obligations.
Contract entered into on visualization of profit and loss cannot be the basis for considering a context of a claim on quasi contractual obligations particularly on equitable considerations. Had the work was completed by the year 1997 he would have done the initial contract work alone that was entrusted to the plaintiff. The value of work he would have done might be certainly different. By considering and calculating the escalation around 50% the plaintiff claimed Rs.1,41,93,891/- under claim No.1. But when the escalation is to be considered at only 5% on the practical analysis of the things referred above, this court is of the view that the plaintiff will be entitled for 10% of what he has claimed under claim No.1 which will come to around Rs.14,19,389/-. However the same is rounded to Rs.14,00,000/-.
Therefore the plaintiff is entitled for a sum of Rs.14,00,000/- (Rupees fourteen lakhs only) under claim No.1.
(B) CLAIM No.2 (clearing the site)
The pleadings relating to Claim No.2 are set out in paragraph 5 of the plaint. The contention of the plaintiff is that he had faced difficulty to remove the accumulated silt and stones which is an additional item of work, as the earlier agency completed its work three years before the plaintiff concluded the contract agreement. There were three annual monsoons. The earlier agency worked up to 363.000 Level with M.20 concrete on front face of the spill-way. The consultant from NABARD inspected the site in
June,1997 and suggested to take up remedial measures to protect seepage through the foundation masonry constructed by the earlier agency. The plaintiff had to clear accumulated silt to the satisfaction of defendants. The 54 placement register entries also reflect the same. The plaintiff under his letter dt.07.11.1997 and 02.03.1998 (Ex.A-26) sought for payment on account of clearing the silt, bushes, plants, small boulders etc.,
In cross examination (Page.6, 14th Line) of D.W.1, he admitted that “Some silt was formed on the site of suit contract work before the commencement and same was cleared by the plaintiff”. By the time of acceptance of the work and entering into original contract the plaintiff is aware of the necessity to remove the material and clean the site. Therefore the claim made by the plaintiff under the present head found not sustainable and this court is of the view that the plaintiff is not entitled for any amount under this head.
(C) CLAIM No.3 (Compensation paid to pattadars)
Paragraph 13 of the plaint and paragraph 36 of the affidavit in chief of
P.W.2 deal with this aspect. The plaintiff is claiming a sum of Rs.1 lakh. The stone and metal quarry was from local gutta. It is the contention of the plaintiff that the pattadards were denied of the crop for the contract period and accordingly the plaintiff paid the amounts to the pattadars. The plaintiff under his letters dt.7.11.1997, 11.11.1998 (Ex.A32), 15.1.2001 (Ex.A41), 26.4.2001 (Ex.A43), 5.5.2001 (Ex.A44) and 7.7.2001 had requested the defendants to look into this aspect and sought for payment. Defendant No.3 in his letter dt.15.11.1997, as set out in paragraph 3 of the written statement, stated that it is for the plaintiff to lay the approaches. P.W.4 is one such pattadar who claimed that he was paid Rs,10,000/- and he had issued receipt under
Ex.A104. PW.4 failed to furnish details of his land and his evidence found self- serving. The names of other land owners is not referred by him. The document Ex.A.104 filed by plaintiff is not inspiring the confidence of the court.
The claim under this head found beyond the scope of the agreement between the parties, hence this court is of the humble view that the plaintiff is not entitled for any amount under this head.
55
I(D) CLAIM No.4 (Advance paid to labourers)
Paragraph 14 of the plaint deals with this aspect. Besides the evidence of P.W.2, the evidence of P.W.3 is also relevant in this regard. Ex.A106 was marked through P.W.3. When the claim of the plaintiff is that around 300 labour were engaged there must be a register and there must be enrolment with the concerned Labour department. The payment must have been made through Bank accounts or atleast under some acceptable receipts but there is no evidence or material indicating mandatory requirements. The evidence of
PW.3 that he and one Balaswamy sent 300 labours to the plaintiff found baseless and he was unable to furnish any relevant information. Further his evidence is that one Balaswamy received the amount of Rs.4,50,000/- towards advance. Said Balaswamy was not examined. What is the status of Balaswamy is not on record. Therefore this court finds that the claim of plaintiff is not sustainable under this head.
(E) CLAIM No.5 (Cost of admixture)
Paragraph 15 of the plaint sets out the details of this claim. It is the case of the plaintiff that the work was to be executed as per the design mix furnished by APERL in their letter dt.18.3.1992. The second defendant prepared the estimate adopting the data of Kaulasnala Project of Nizamabad
District. Defendant No.2 is required to supply such admixture as per Clause 31.1.3 at page 104 of Ex.A98. On account of the anticipated procedural delays, defendant Nos.2 and 3 directed the plaintiff to use admixture for workability and never gave instructions to the plaintiff to discontinue usage of admixture. The plaintiff under his letters dt.11.11.1998 (Ex.A31), 15.1.2001 (Ex.A41), 26.4.2001 (Ex.A42), and 15.5.2001 sought for payment under these heads. Paragraph 38 of the deposition of P.W.2 deals with this aspect. P.W.2 deposed that the admixtures were used as per the instructions of defendant
No.3 and as directed in the agreement at the rate of 150ml. for each pack of cement. These are used to improve the workability of the concrete and to increase the compressive strength. Besides the letters pointed out, the 56 plaintiff also sought for payment for the same under his letter dt.24.11.1998 as stated by P.W.2. In paragraph 19 of the written statement, the defendants contended that the plaintiff should follow the agreement condition No.31.1.3 and obtain instructions from defendant No.3 and that contrary to this, he is not entitled for any compensation. Condition No.31.1.3 of Ex.A98 at page 62 (printed) reads as follows:
CEMENT
Exhibit Page Condition Condition
A- No. No. Reads as follows 98 62 31.1.1 The contractor has to make hisown arrangements for the procurement of cement required for the works subject to the following.
31.1.2 The contractor shall procure 43 grade cement conforming to IS 8112-1989 in standard racking of 50 Kg/bag as fresh as possible from the authorized manufactures/dealers. Cement procured from non BIS licence firms will not be allowed. The contractor shall make necessary arrangements at the own cost to the satisfaction of the Executive Engineer for actual weighment of random samples from the available stock. Cement shall be got tested as directed by the Executive Engineer atleast 15 days in advance before its actual use on work.
Cement required for the testing shall be supplied by the contractor free of cost. However, the testing charges will be borne by the department. All tests shall be conducted in accordance with LS 4031-1988& IS 4032-1968 and IS 3535-1986. If the test results are unsatisfactory, the testing charges will be recovered from the contractor.
-do- -do- 31.1.3 The department will furnish air entraining agents and admixtures, if required, to the contractor free of cost at the site of work. The use of such admixtures and agents shall be made as per the instructions of the Executive Engineer. The cost of cart age/storing/batching mixing shall be borne by the contractor and shall be included by him in the unit prices quoted for items of work involving the use of cement.
57
Thus, it is to be noted that Clause 31.1.3 does not restrict the claim of the plaintiff. Further, as per the terms and conditions of the agreement, this work had to be executed with the admixtures to be provided by the defendant department. It is well settled that when a particular item is not provided by one of the parties though there is an obligation to provide, the work cannot be executed without that. However, the party is not entitled to procure and seek for payment as against this, and non-supply would not entitle the contractor to omit to add the admixtures. There is also a possibility of the work being adversely affected on account of non-use of these admixtures. The usage of admixtures will strengthen the concrete and that is why such a term is provided in the contract agreement. Under these circumstances, since the plaintiff admittedly used the admixtures by procuring the same, he has to be reimbursed. Section 70 of the Indian Contract Act also comes into play in a case of this nature. The cross examination of P.W.2 in this regard also does not reflect anything otherwise or disprove the case of the plaintiff. The plaintiff is, therefore, entitled for this claim.
In cross examination D.W. 1 in (6th Page, 22nd Line) admitted that “Admixture was used from elevation + 372.000 mtrs onwards. It is true that the admixture was not supplied by the defendants. It is true that it mentioned
Ex. A-1 Page No.104, (31.3) that the department will furnish admixture if required to the contractor free of cost at the site of work. Admixtures are used to increase the workability concrete”. Further admits in 11th line page no. 6 from bottom that “I was site Engineer at the time of use of admixture. Total
Quantity of Admixture used. The details of admixture used and the claim made under this head at Rs.6,16,000/- found sustainable and this court is of humble view that the plaintiff is entitled for the same.
(F) CLAIM.NO.6 (Under utilization of machinery)
Claim No.6 pertains to under-utilisation of machinery and equipment.
This claim is set out in paragraph 16 of the plaint and the plaintiff is claiming a 58 sum of Rs.24 lakhs under this head. It is the case of the plaintiff that for executing any work, he would have to get the required machinery and equipment for its proper execution. The plaintiff was awarded the work of spillway construction and, therefore, he had procured the required machinery for this purpose.
In cross examination of D.W. 1 in (8th Page 3rd Line) admitted that it is true that the plaintiff maintained the machinery at work site i.e. 6 No.s. of CC
Mixtures,1 Composer, 100 KV Generator, 5 HP Motors 2 No. , One 10 HP motor, 6 No. Welding Machines and four Tractors, 4 No. Wrinches. Merely because there is admission that the machinery was arranged by plaintiff it is not automatic that he is entitled to make a claim for the machinery. When plaintiff is doing a work of crores of worth he has to maintain machinery necessary. Therefore his contention that he has maintained some machinery found nothing strange or beyond the requirement of the contract. Hence this court finds that the plaintiff is not entitled for any amount under this head.
(G) CLAIM.No.7 (Conducting permeability tests)
Claim No.7 pertains to conducting of permeability tests for which a sum of Rs.10,14,000/- is claimed contending that, the foundation stone masonry was constructed up to +363 by the earlier agency, the plaintiff was directed to take up drilling and grouting and also conduct permeability tests in the foundation masonry laid by the earlier agency, subsequently, the plaintiff was also directed to conduct similar tests at +368.000 for the masonry constructed by the plaintiff from +366.000 to +368.000 and once again at +373.000 level and +377.000 level. These tests were conducted on two occasions, but payment in respect of this was denied by the defendants on the ground that the rates quoted by the plaintiff were inclusive of drilling and grouting and permeability tests. The operation was required to be carried out by the plaintiff as set out in „A‟ Schedule. Specification Nos.33.15.3 and 33.15.4 only set out the procedure to be adopted for conducting these tests. The details of 59 this claim are set out in paragraph 17 of the plaint and paragraph 40 of the affidavit in chief examination of P.W.1. There was also a reference to general conditions, particularly Clause 4.8.1 at page 26 of Ex.A98. However, plaintiff cannot claim that he is entitled for certain amounts for the incidental works done this work is found as incidental and inclusive to the main work allotted.
Under these circumstances, this claim of the plaintiff and reimbursement for the work done in terms of Section 70 of the Contract Act is found not sustainable and the plaintiff is not entitled for any amount under this head.
(H) CLAIM No.8 (Loss due to floods)
This claim for loss due to floods is put at Rs.14,39,000/-. It is the case of the plaintiff that there were flash floods in the month of September and
October, 1998 and on account of unprecedented rains, the water level reached beyond maximum flood level of the river. The machinery and construction material were kept at a higher level than the MFL (Maximum Flood Level).
However, the level beyond the MFL on account of C.C. mixtures, shuttering plates, cap holding materials and sand were washed out. A police complaint was also lodged on 11.11.1998 and the machinery could not be traced. Two concrete millers with 5HP motors, one Wrench motor, 5HP machinery…..160
Nos. of iron shutters were lost. Ex.A32 is the report dated 11.11.1998 regarding washing away of certain machinery and non-tracing of the same.
The defendants in paragraph 21 of their written statement stated that risk had to be borne by the plaintiff himself, and by virtue of Clause 50 of PS to APSSS, the plaintiff has to make his own arrangements and, therefore, he is not entitled for this amount. However, the plaintiff is relying on Clause 50 of PS to APSSS and claiming that said provision only states that the contractor is not liable for any loss or damage occasioned by or arising out of the acts of
God and in particular unprecedented floods etc. Plaintiff is relying on certain admissions made by DW.1 during cross-examination that one miller, Two motors, some cement and metal and sand work lost in the floods. Further he is claiming that, during October 1998 there were heavy floods hence he is entitled for the value of the items lost and damaged due to floods. As rightly 60 contended by defendants, the plaintiff ought to have made necessary arrangements for protection of his tools. The floods is an act of God. The value of the motors or any other item said to have been lost and damaged in the floods is estimated on notional base. Plaintiff is not liable of act of god for loss sustained by anybody does not mean that plaintiff is entitled against defendants in the event of loss due to act of god. Further proper material or legal foundation to entertain the claim is not found. Hence this court is of the humble view that the plaintiff is not entitled for any amount under this head.
(I) CLAIM.No.9 (formation of excess lead during flood period)
Paragraph 19 of the plaint and paragraph 42 of the affidavit in chief examination of P.W.2 deal with this aspect. The defendants have rebutted this claim in paragraph 21 of their written statement. The defendants have denied about the approaches having been laid by the plaintiff as false and that the department is not liable for this payment. It is the case of the plaintiff that due to unprecedented rains and flash floods, the approaches laid by him on the original short route got submerged for quite a long time and as the flood water was not receding and time was running out, the plaintiff had to get the material from the specified quarry. The restriction against the claim is set out in Clause 2.10.3 at page 90 of Ex.A98 where under the contractor is precluded from claiming extra in case he is found to have misjudged the materials available. The plaintiff is claiming that, in this case the misjudging does not arise at all as the regular approach got submerged and the plaintiff had to get an alternate route which was longer resulting in higher and extra expenditure and that the plaintiff had to resort to this in the interest of the timely completion of work. The plaintiff claimed a sum of Rs.50,000/- on account of this extra lead. There is no basis for the claim made either from the contractual obligation point of view or from the point of view of evidence.
Hence this court finds that the plaintiff is not entitled for any amount under this claim.
61 (J) CLAIM.No.10 (Advance paid to Bygging India)
Claim No.10 relates to advance paid to M/s. Bygging India. The plaintiff herein placed an order for slip form centring work to M/s. Bygging
India, Bombay so that the piers can be raised faster than the usual. This fact was informed to the defendants by the plaintiff under his letter dt.2.6.1998 vide Ex.A27. By referring to this aspect the plaintiff is making claim under this head adding that the defendants made abnormal delay in fixing the embedded parts and trunion. Further the plaintiff claimed that as the time provided under the agreement was short and the plaintiff was required to catch the speed of work within the time frame, the plaintiff proceeded with latest techniques in placing concrete by means of slip form centring rather than conventional method of centring. The defendants in paragraph 22 of the written statement, contending that the plaintiff never brought such kind of machinery to the site, and further contending that the defendants are not responsible to pay. Plaintiff is referring to Exs.A27 and A28 and claiming that they are clear proofs. Further plaintiff claimed that in cross examination of
D.W.1 (in 8th Page 18th Line) admitted that “ The Bygging India Company people came to work site at the instance of the plaintiff with 2 motors to speed of the work in Slip form centering method to construct piers. The contention of the plaintiff is that in order to speed up the work he took the assistance of
Bygging India Company. The assistance taken by the plaintiff appears to be out of the scope of contractual terms. Plaintiff is aware of the terms of the contract and the time schedule within which he has to perform his obligation, by the time of entering into contract. Further by the time of availing of services of Bygging India company he is aware of the expenditure is likely to incur on availment of such services. Then he ought to have taken a nod from the defendants to make an extra claim to an extent of expenditure incurred due to opting services of Bygging India Ltd., Upon considering all the relevant aspects this court is of the humble view that the plaintiff is not entitled for any amount under this head.
62 (K) CLAIM.No.11 (direction on the part of the defendants to the plaintiff to use the crushed metal instead of hard broken metal broken from local gutta quarry) para 21 of the plaint and paragraph 44 of the affidavit in chief of P.W.2 deals with this aspect while this claim is rebutted by the defendants in paragraph 23 of the written statement contending inter alia that the defendant department never insisted on crushed metal and that the plaintiff procured HBG metal of required size for laying CC and the revised estimate was approved with the consent of the plaintiff and sanctioned in G.O.Ms.No.60, dt.23.3.2001 and, therefore, the claim is not maintainable. As per the terms of the contract, the plaintiff was required to use hard metal, whereas during the course of execution of the work, the plaintiff was directed to use crushed metal. The usage of crushed metal results in better work and it strengthens the work, more particularly where the wear and tear was expected to be more. In the interest of the work and also as per the directions of the department, the plaintiff had to use crushed metal instead of the ordinary hard metal.
It is the case of the plaintiff that usage of crushed metal resulted in extra expenditure as the plaintiff conveyed 264.50 cmts. of 20 MM, 86.06 cmts. of 12 MM and 31.54 cmts. of 10 MM crushed metal used in the work. It is a matter of common knowledge that no contractor would like to involve and incur higher expenditure by using a better material unless he is called upon to do so. Therefore, the contention of the defendants that the plaintiff was never called upon to use crushed metal is incorrect and unsustainable.
In cross examination of DW1 in page 6th Line) admitted that “ crushed metal of 20 mm size was used for piers – caps, road bridge, wearing coats. The crushed metal of 20mm size brought from Krishnama Reddypalli quarry of Anantapur Mandal. The distance between Krishnamareddypalli quarry and work site is 59 Km, The crushed metal was used under size of 20 mm , 10mm, 6mm”. Further admitted in 17th line in same page that “ The crushed metal costlier than hand broken metal.” 63
Expenditure incurred in bringing the crushed metal to the site.
20 mm- 264 cub.mtrs @ Rs.600 per cub.mtr. = Rs. 1,58,400/- 10mm- 86 cub.mtrs @ Rs. 400 per cub. Mtr = Rs. 34,400/- 6 mm – 310 cub.mtrs @ Rs. 200 per cub. Mtr = Rs. 62,000/-
Total = Rs. 2,54,800/-
Rounded to Rs. 2,50,000/-
This claim made by the plaintiff found sustainable in the light of the evidence and other facts and circumstances of the case and in view of clear non-denial of using of material.
(L) CLAIM.No.12 (refund of sales tax)
The plaintiff is claiming a sum of Rs.19,63,000/- under this head. This claim is dealt with in paragraph 22 of the plaint and paragraph 45 of the affidavit in chief of P.W.2. The defendants have rebutted this claim in paragraph 24 of their written statement by contending that they are entitled to recover at 4% as per the agreement condition No.3.18 and that they recovered only 2.1% as per the prevailing rules and that the plaintiff is liable to pay the balance amount of sales tax to the department. It is the case of the plaintiff that by virtue of Clause 3.7 of Ex.A98, the rates quoted in Schedule A shall be through rates for the foundation work and inclusive of all incidental and contingent charges. Clause 2.15.1 at page 21 of the agreement stipulates that the contractor is required to pay sales tax on items wherever payable and no separate payment on account of the same shall be paid by the department.
The plaintiff took into account the tax components including the sales tax on material, seigniorage and other royalties that may be required to be paid by the plaintiff to the government in respect of the work undertaken by him. The sales tax payable by the contractor for cement, steel, petrol, diesel and such other consumable goods also had to be paid by the plaintiff. Unless sales tax is paid, the materials would not be supplied. Clause 3.18 states that APGST at flat rate of 4% from the aggregate amount of the bills would be recovered as per Sections 5G and 5H of the APGST Act. This clause would apply where the 64 estimate prepared would have a provision for this aspect also. In the estimates prepared by defendant No.1, there is no such provision. The defendant department, in fact, made a provision of Rs.8 lakhs in the revised estimates and made provision for release of sales tax as per Sales Tax Act in the year 2000. The same was obtained with the specific intention of refunding the amount of Rs.8 lakhs. The plaintiff claims that this amount was not paid and claims that in addition to the refund of Rs.8 lakhs of the work done beyond
January, 2000, the plaintiff is entitled for the refund of the amount paid prior thereto in all amounting to Rs.19,63,000/-. In cross examination D.W.1 (in 9th page 18 Line) admitted that Clause 2.15.1 read with Clause 3.7 does not place any embargo on the plaintiff claiming this amount “The sales tax was not shown in the estimation Ex.A-1. In 22nd Line same page that “It is true that the cement, diesel, Petrol , Lubricants are already levied sales Tax before reaching the work site. Cement & Steel were not provided by the defendants. The plaintiff himself procured them.” In further admitted in 5th line from bottom in same page that “ Diesel , Petrol and Lubricants were not supplied by the department.”
Plaintiff is claiming that amount deducted in bills towards sales tax is Rs.
19,63,000/-. It is not clear from the contention of the plaintiff that when a provision is made for Rs.8 lakhs towards sales tax how he is entitled to claim
Rs.19,63,000/-. Making provision for Rs.8 lakhs towards sales tax refund is not clearly denied by the defendants. Therefore, this court finds that the plaintiff is entitled for Rs.8 lakhs under this head of sales tax refund deduction etc., (M) CLAIM.NO.13 (over head charges)
This claim relates to overhead charges under which the plaintiff has made a claim of Rs.34 lakhs. Paragraph 23 of the plaint and paragraph 46 of the affidavit in chief of P.W.2 deal with this aspect of the claim. Paragraph 25 of the written statement of the defendants containing denial of this claim.
Where any quotation was submitted by the contractor, he would take into 65 account the expenditure that may be required to be incurred by him i.e.
salaries to the technical staff, non-technical staff, watchman, accountants, labour, machinery and arrangements for transporting materials etc. This estimate is prepared having regard to the time that may be required for executing the subject work. In any contract, when there is a reasonable delay of the contractor would not be justified in claiming overheads on account of delay as that can be treated as an incidence of the contract. The plaintiff claimed that in cross examination D.W.1 (10th page from beginning top) admitted that “Mess was maintained by the plaintiff during the period of execution of work, till completion, 2 cocks and 3 helpers were employed to maintain the mess. P.W. 2 was the site manager on behalf of the plaintiff.
Certain technical staff was maintained by the plaintiff. They have provided food in the mess on free of cost. Staff included one Dr. Janaradhan Reddy to look after the medical needs of work force. There were six miller operators. One
Suryanarayana Reddy and one Muralidhar were site engineers on behalf of the plaintiff. Two labour supervisory Agents namely Ramesh and Subbaiah, Two watchmen namely Narayana Reddy & Kullayappa and one Accountant by name
Allabakash, one Generator Operator by name Mohammed, two drillers namely
Narayana and another, two tractor drivers namely Nagendra and Ravi one Jeep driver by name Yerriswamy were also employed by the plaintiff during the period of execution of work. I don‟t know one foreman and one helper were also employed during that time. The plaintiff used to pay remuneration to all above staff.
The arrangements made by the plaintiff with regard to staff worked under him are his own arrangements. It is not the case that original contracted work completion itself was extended. It is a clear case where
additional work has contributed for extension of time. When for the extended
work, rates are quoted and the claim is made basing on modified SSR rates.
The present claim can be found as redundant and a covered one. Therefore, this court finds that the plaintiff is not entitled for any amount under this claim.
66 (N) CLAIM.NO.14 (seigniorage charges)
The plaintiff made a claim for Rs.1,90,140/- under this head. Paragraph 24 of the plaint and paragraph 47 of the affidavit in chief examination deals with this aspect. Paragraph 25 of the written statement of the defendants containing denial this claim. Clause 3.7 of the agreement stipulates that the seigniorage charges in respect of the material are to be borne by the contractor. As per the terms of the agreement, the material to be obtained from the quarry was to be given free of charge and perhaps it was given free of charge. However, the owner of the quarry and having regard to the statutory provision therein that any buyer or purchaser who procures the material from the quarry has to pay seigniorage charges collected seigniorage as it is a statutory collection. The plaintiff claims that once the material is given free and the department is liable to deliver the same, one would not imagine that this particular component of charges is required to be paid by the contractor. This contention found baseless. Since amount if any collected under seigniorage charges by the owner of the quarry is on statutory base in compliance of the Government directions or the statute, the defendants cannot be made responsible for it and this court is of the view that the plaintiff shall bear the said expenditure. Therefore, the plaintiff is not entitled for any amount under this head.
(O) CLAIM.No.15
This claim pertains to loss sustained by the plaintiff on account of delay, non-payment of the amounts within time, the expenditure incurred by the plaintiff during the course of execution of the work and the value of the work being more than the original contract value, and that loss of profit also can be included on this count. A sum of Rs.55 lakhs is claimed under this head. It is also the case of the plaintiff that he had to obtain additional finances from the financers with huge rate of interest. It is pertinent to note that the contract period was extended and additional work was entrusted and in respect of the
additional work the claim of the plaintiff for adopting enhanced SSR rates is
also considered by this court to some extent.
67
The defendants, in paragraph 26 of their written statement, denied this claim of the plaintiff by contending that the loss incurred due to non-payment is false, that the payments were made regularly as per the work done and that the department is not liable to pay any extra amount.
This claim is made by the plaintiff on the ground that there is loss to him and that he did not get the profit expected. There is no basis for arriving at the magic figure of Rs.55 lakhs claimed by the plaintiff. Upon considering entire evidence on record and facts and circumstances of the case, this court is of the view that the plaintiff is not entitled for any amount under this head.
In view of the discussion made above, the claims made and entitlement of the plaintiff under various heads is concluded as follows:
S.No. Head of claim Amount claimed Amount awarded
1. Actual expenditure incurred Rs. 1,41,93,891-00 Rs.14,00,000/- during the extended period of contract
2. Securing of site 1,00,000-00 Nil
3. Compensation paid to 1,00,000-00 Nil Pattadars
4. Advance paid to labourers 3,00,000-00 Nil
5. Cost of admixture 6,16,000-00 Rs.6,16,000-00
6. Under utilization of 24,00,000-00 Nil Machinery & Equipment
7. Conducting of permeability 10,14,000-00 Nil tests
8. Loss due to floods 14,39,000-00 Nil
9. Extra lead during the period 50,000-00 Nil of flood 10 Advance paid to M/s Bygging 4,00,000-00 Nil India Ltd., for expediting the work 11 Expenditure incurred for 2,50,000-00 Rs.2,50,000-00 crush material 12 Refund of Sales tax 19,63,000-00 Rs.8,00,000-00 13 Over head charges (extra 34,00,000-00 Nil wages to labour etc.) 14 Seignorage charges 1,19,140-00 Nil 15 Loss sustained due to non- 55,00,000-00 Nil payment TOTAL Rs. 3,19,16,031-00 Rs.30,66,000-00 68
For the reasons stated above, this issue No.1 is decided partly in favour of the plaintiff concluding that he is entitled for recovery of Rs.30,66,000/- only with proportionate costs and interest at 6% p.a. from the date of suit till the date of realization from the defendants.
Issue No.5:
In the light of discussion made and conclusions drawn under issue Nos.1 to 4 and in the result,
1. Suit is partly decreed.
2. A money decree is passed in favour of the plaintiff and against the defendants for an amount of Rs.30,66,000/- (Rupees thirty lakhs and sixty six thousand only) with proportionate costs and interest at 6% p.a. from the date of suit till the date of deposit or realization.
3. The suit in respect of the claim other than decreed above is dismissed without costs.
Dictated to the Stenographer Gr. I, transcribed by her, corrected and
pronounced by me in Open Court, this the 25th day of January, 2017.
DISTRICT JUDGE,
ANANTHAPURAMU.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF DEFENDANTS
PW.1: Reddy Veeranna DW.1: D.S.Pradeep
PW.2: Vijaya Bhaskar DW.2: B.Hari Govindaiah
PW.3: Thirumala Raju
PW.4: P.Peeru Naik
EXHIBITS MARKED ON BEHALF OF PLAINTIFF
Ex.A1 Agreement No.475 EA/96-97 dated 15.02.1997
Ex.A2 Office copy of legal notice dated 12.08.2001
Ex.A3 Postal acknowledgment of defendant No.1 dated 14.08.2001
Ex.A4 Postal acknowledgment of defendant No.2 dated 14.08.2001
Ex.A5 Postal acknowledgment of defendant No.3 dated 14.08.2001
Ex.A6 Authorization given to M.Vijaya Bhaskar dated 23.05.1998 69
Ex.A7 General Power of Attorney in favour of M.Vijaya Bhaskar by plaintiff
dated 09.06.2009.
Ex.A8 Receipt of final payment under protest dated 31.03.2001
Ex.A9 Work done certificate dated 16.09.2002
Ex.A10 Proceedings No.M-10/Spillway/DB dated 19.03.1998 extending time upto 30.06.1998 Ex.A11 Proceedings No.319/MP dated 06.08.1998 extending time upto 31.12.1998. Ex.A12 Proceedings No.7/MP dated 06.01.1999 extending time upto 28.02.1999. Ex.A13 Proceedings No.109/MP dated 29.03.1999 extending time upto 30.06.1999. Ex.A14 Proceedings No.356/MP dated 09.10.1999 extending time upto 31.12.1999 Ex.A15 Proceedings No.434/MP dated 31.12.1999 extending time upto 31.03.2000. Ex.A16 Proceedings No.233/MP dated 23.06.2000 extending time upto 30.06.2000. Ex.A17 Proceedings No.28/MP dated 16.08.2000 extending time upto 30.09.2000. Ex.A18 Photostat copy of G.O.Ms.No.23 PWD, dated 05.03.1999
Ex.A19 Letter No.RV/YVRP/1/97-98 dated 26.09.1997 addressed to Defendant No.3 Ex.A20 Letter No.RV/YVRP/3/97-98 dated 15.11.1997 addressed to Defendant No.2 Ex.A21 Letter No.RV/YVRP/4/97-98 dated 17.11.1997 addressed to Defendant No.3 Ex.A22 Letter No.RV/YVRP/5/97-98 dated 22.11.1997 addressed to Defendant No.3 Ex.A23 Letter No.RV/YVRP/2/97-98 dated 27.11.1997 addressed to Defendant No.2 Ex.A24 Letter No.RV/YVRP/9/97-98 dated 01.12.1997 addressed to Defendant No.3 Ex.A25 List of hindrances addressed to Defendant No.3
Ex.A26 Letter No.RV/YVRP/13/97-98 dated 02.03.1998 addressed to Defendant No.3 Ex.A27 Letter No.RV/YVRP/40/98-99 dated 02.06.1998 addressed to Defendant No.2 Ex.A28 Demobilization on slip form letter No.BIL/B/RV/6821/98 dated 06.06.1998 Ex.A29 Letter addressed to Defendant No.3 with a request to recover seignorage charges dated 12.06.1998 Ex.A30 Letter No.RV/YVRP/20/97-98 dated 15.09.1998 addressed to Defendant No.3 EX.A31 Letter No.RV/YVRP/21/97-98 dated 11.11.1998 addressed to Defendant No.3 EX.A32 Letter No.RV/YVRP/22/97-98 dated 11.11.1998 addressed to Station House Officer Mudigubba. Ex.A33 Letter Address To defendant No 3 dated 28.11.1998
Ex.A34 Intimation No.RV/YVRP/23/98-99 dated 12.03.1999 addressed to Defendant No.3 Ex.A35 Letter No.RV/YVRP/26/98-99 dated 15.03.1999 addressed to Defendant No.3 Ex.A36 Letter No.RV/YVRP/27/98-99 dated 15.06.1999 addressed to Defendant No.3 70
Ex.A37 Letter No.RV/YVRP/28/98-99 dated 1.09.1999 addressed to Defendant No.3 EX.A38 Letter No.RV/YVRP/29/98-99 dated 14.09.1999 addressed to Defendant No.3 Ex.A39 Intimation Sent To Chief Engineer Hyderabad Dated 25/11/1999 .
Ex.A40 Letter No RV/Site /1/2000 dated 16/05/ 2000 addressed to station House Officer to Mudigubba. Ex.A41 Requisition Sent to Defendant dated 15/01/2001 for settlement of claims. Ex.A42 Letter No.RV/YVRP/36 dated 26.04.2001 addressed to Chief Engineer Hyderabad. Ex.A43 Letter No.RV/YVRP/1/2001 dated 26.04.2001 addressed to Defendant No.2 Ex.A44 Reminder issue to defendant No.2 dated 5/05/2001 .
Ex.A45 Letter No DV/HO/2V5/74-M dated 03/03/1997 addressed to plaintiff by defendant No.3 Ex.A46 Letter by 2nd defendant to plaintiff in Lr.No.AEE/TS/T10©Spillway No.422M dt 6.3.1997 Ex.A47 Lr.No.F.2W/5A/DB/D2/225M addressed to plaintiff by 3rd defendant
dt 2.5.1997
Ex.A48 Lr.No.F.2W/5A/DB/D2/553M addressed to plaintiff by 3rd defendant
dt 24.09.1997
Ex.A49 Report of General Manager, NABARD dt 04.07.1997
Ex.A50 Inspection Notes of Superintending Engineer dt 20.7.1997
Ex.A51 Inspection Notes of General Manager, NABARD dt 29.09.1997
Ex.A52 Letter of Deputy Executive Engineer (Constn) addressed to the plaintiff dt 26.10.1997 Ex.A53 Letter of Deputy Executive Engineer (Constn) addressed to the plaintiff dt 27.10.1997 Ex.A54 Letter of Deputy Executive Engineer addressed to the plaintiff dt 28.10.1997 Ex.A55 Letter of Deputy Executive Engineer addressed to the plaintiff dt 29.10.1997 Ex.A56 Letter No.F2W5A/DB/D2/713M of defendant No.3 dt 12.11.1997 to the plaintiff Ex.A57 Circle letter addressed to Chief Engineer, Hyderabad dt 31.1.1998 by defendant No.2 Ex.A58 Communication of river sluice drawing vide letter No. F2W5A/DB/D2/106M dtd 07.02.1998 Ex.A59 Letter No.F2W5A/DB/D2/217M of defendant No.3 dt 11.03.1998 to the plaintiff Ex.A60 Letter No.F2W5A/DB/D2/224M addressed by defendant No.3 dt 16.03.1998 to the plaintiff Ex.A61 Letter of Executive Engineer, QC PVL Division, Pulivendula to defendant No.3 dt 21.03.1998 Ex.A62 Letter of Executive Engineer, QC PVL Division, Pulivendula to defendant No.3 dt 07.04.1998 Ex.A63 Letter No.S.10/DAO(W) 104 GL dt 10.05.1998 addressed to plaintiff by defendant No.3 Ex.A64 Letter No.F2W5A/DB/D2/571M addressed by defendant No.3 dt 17.07.1998 to the plaintiff Ex.A65 Observation report of NABARD authorities dt 13.08.1998 sent to
Principal Secretary
Ex.A66 Communication of design mixes dt 30.10.1998 in Cr.NO.E2/S4/60/97-98/521 from Director, AOERL, Hyderabad to defendant No.3 71
Ex.A67 Inspection Notes of Superintending Engineer dt 02.02.1999 defendant No.2 Ex.A68 Letter No.M10/Spillway/DB/D1/441M dt10.03.1999 addressed by defendant No.3 to the plaintiff Ex.A69 Letter No.F2W5A/DB/D1/332M addressed by defendant No.3 dt 03.05.1999 to the plaintiff Ex.A70 Observations of NABARD report dt 18.05.1999
Ex.A71 Executive Engineer‟s letter addressed to plaintiff dt 08.06.1999
Ex.A72 Intimation letter of the Deputy Executive Engineer dt 19.7.1999 addressed to the plaintiff Ex.A73 Letter of Executive Engineer addressed to the plaintiff dt 03.08.1999
Ex.A74 Inspection notes of Chief Engineer, CDO Hyderabad dt 4.9.1999 addressed to Chief Engineer, Hyderbaad Ex.A75 Letter of Executive Engineer addressed to plaintiff dt 09.10.1999
Ex.A76 Letter of Chief Engineer, Medium Irrigation addressed to the Secretary (Projects) I & CAD dt 30.10.1999 Ex.A77 Letter of Executive Engineer (AC) PUliuvendula addressed to Defendant No.3 dt 09.11.1999 Ex.A78 Letter of Pay & Accounts Officer, Ananthapuram to defendant No.3 dt 02.02.2000 Ex.A79 Divisional Letter addressed to defendant No.2 dt 20.10.2000
Ex.A80 Letter of Superintending Engineer addressed to Chief Engineer, Hyderabad dt 23.10.2000 Ex.A81 Letter of Superintending Engineer addressed to Pay & Accounts Officer, TCP HLC., Ananthapuramu 01.11.2000. Ex.A82 Final Quality Control Certificate issued by the Executive Engineer, PUlivendula dt 27.08.1997 Ex.A83 Copy of sanctioned estimate dt. Nil
Ex.A84 Approved Deviations dt 21.06.1999
Ex.A85 Supplemental Agreement No.SEA5/98-99 dt 21.6.1999
Ex.A86 2nd Supplemental Agreement No.SEA19/98-99 dt 27.05.1998
Ex.A87 3rd Supplemental Agreement No.SEA35/98-99 dt 24.03.1999
Ex.A88 4th Supplemental Agreement No.SEA12/99-2000 dt 10.6.1999
Ex.A89 4th Supplemental Agreement No.SEA15/98-99 dt 07.10.1999
Ex.A90 Letter of Civil Engineer, Hyderabad to defendant No.2 dt nil
Ex.A91 5th Supplemental Agreement No.10SEA/2001-01 dt 24.03.2001
Ex.A92 SSR rates for Kurnool and Ananthapuram District of 1995-96 to 1996-97 Ex.A93 SSR rates for Kurnool and Ananthapuram District of 1996-97
Ex.A94 SSR rates 1997-98
Ex.A95 SSR rates for Kurnool and Ananthapuram District of 1998-99
Ex.A96 SSR rates for Kurnool and Ananthapuram District of 1999-2000 72
Ex.A97 SSR for Rayalaseema Region 2000-2001
Ex.A98 Original Agreement between 2nd defendant and plaintiff for 1996- 1997 Ex.A99 Statement of escalation over the year 1995-96 and 2000-01
Ex.A100 Statement of Supplemental agreements
Ex.A101 Statement of Extension of time accorded by the department to the plaintiff Ex.A102 Statement of Bill wise amount particulars
Ex.A103 Drawing Spillway
Ex.A104 Receipts (6) for transportation of material through Ryots lands
Ex.A105 Receipt issued by Viswakarama Drilling Co.,
Ex.A106 Pronote issued towards Labour charges
Ex.A107 Proof of Malaria effect and death of one person
Ex.A108 Receipt issued by M/s Ramakrishna Engineering Works
Ex.A109 Commissioner Report
Ex.A110 Supplementary agreement 10SEA/2000-2001 dt 24.03.2001
EXHIBITS MARKED ON BEHALF OF DEFENDANTS
Ex.B1 Placement Register No.1
Ex.B2 Placement Register No.2
Ex.B3 Placement Register No.3
Ex.B4 Placement Register No.4
Ex.B5 Page No.23 of M Book No.185
Ex.B6 Page No.29 of M Book No.185
Ex.B7 Page Nos.52,53,54 of M Book No.185
Ex.B8 Page No.57 of M Book No.229 YPV (A)
Ex.B9 Page No.60 of M Book No.220 YPV (A)
Ex.B10 Bill XXIV cancelled page 63 of 231 YVP A
Ex.B11 Bill cancelled dt 28.12.1999 231 YVP A
Ex.B12 Page No.88 of 231 YVP A
Ex.B13 Page No.85 of 231 YVP A
Ex.B14 Page No.86 of 231 YVP A
Ex.B15 Page No.80 of 231 YVP A 73
Ex.B16 Page No.76 of MB 257 YVP A
Ex.B17 Page No.80 of MB 257 YVP A
Ex.B18 Page No.79 of MB 277 YVP A
Ex.B19 Page No.80 of MB 277 YVP A
Ex.B20 Page No.84,85 of MB 277 YVP A
Ex.B21 Page No.74 and 75 of MB 277 YVP A
Ex.B22 Page No.71 of MB 286
Ex.B23 Page No.68 of Final bill M Book
Ex.B24 Page No.69 of Final bill M Book
Ex.B25 Page No.81 of MB No.257 YVP A
Ex.B26 Page No.82 of MB No.257 YVP A
DISTRICT JUDGE,
ANANTHAPURAMU