High Court · 2011

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.7.2011CORAMTHE HON'BLE MR.JUSTICE A. ARUMUGHASWAMY A.S.NO.26 of 2003 and Tr.A.S.No.252 of 2007 1. M. Nadarajan (Died)2.N. Murugasamy 3.N. Balan4.N.Selvaraj (Appellants 2 to 4 are brought on record as L.Rs. of the deceasedsole appellant vide order of the Court, dated 5.11.2009 made in C.M.P.Nos.1567 to 1569 of 2009).. Appellants in A.S.No.26 of 2003/LRs of the plaintiff-Vs.-1.Union of India represented by Chief Secretary to Govt. of Union Territory of Pondicherry, Pondicherry. 2.SecretaryPublic Works DepartmentGovt. of Union Territory of Pondicherry, Pondicherry.3.Superintendenting EngineerCircle IIPublic Works DepartmentGovt. of Union Territory of Pondicherry, Pondicherry.4.Executive EngineerIrrigation DivisionPublic Works DepartmentPondicherry. .. Respondents in A.S.No.26 of 2003/Defendants 1.Union of India represented by Chief Secretary to Govt. of Union Territory of Pondicherry, Pondicherry. 2.SecretaryPublic Works DepartmentGovt. of Union Territory of Pondicherry, Pondicherry. https://hcservices.ecourts.gov.in/hcservices/

3.Superintendenting EngineerCircle IIPublic Works DepartmentGovt. of Union Territory of Pondicherry, Pondicherry.4.Executive EngineerIrrigation DivisionPublic Works DepartmentPondicherry. .. Appellants in Tr.A.S.No.252 of 2007/DefendantsV.1.M. Nadarajan 2.N.Murugasamy3.N.Balan4.N.Selvaraj ..Respondents in Tr.A.S.No.252 of 2007/ LRs of the plaintiff[Respondents 2 to 4 brought on record as LRs of the deceased Sole Respondent vide order of court dated 29.7.2011, made in Common Judgment in A.S.26/2003, and Tr.A.S.252/2007.[Memo filed dated 13.09.2011 USR No.5796/2011]Prayer:- Firt appeals are filed under Section 96 C.P.C., against thejudgment and decree dated 23.4.2002, passed in O.S.No.184 of 1999 onthe file of the Additional Subordinate Judge at Pondicherry. For Appellants in A.S.26 of 2003 and Respondents in TR.A.S.252 of 2007: Mr. V. Karunakaran for M/s.G.M. Mani AssociatesFor Respondents in S.D.26 of 2003 and Appellants in Tr.A.S.252 of 2007 : Mrs.Mala Additional Govt. Pleader C O M M O N J U D G M E N TAggrieved by the judgment and decree, dated 23.4.2002,passed in O.S.No.184 of 2009 by the Additional Sub Judge,Pondicherry, while the plaintiff filed the appeal in A.S.No.26 of2003, the defendants have also filed the appeal in A.S.No.141 of2002, which has been renumbered as Tr.A.S.No.252 of 2007. The memofiled by the appellant in Tr.A.S.No.252 of 2007 is recorded. https://hcservices.ecourts.gov.in/hcservices/

2. For the sake of convenience, the parties are mentionedas per their rank in A.S.No.26 of 2003. 3. The case of the plaintiff is as follows:-a. The plaintiff is the Class-I unlimited contractor inPondicherry. The plaintiff was given the work of improvements ofOulgret Pallamadugu Drainage Channel from Railway Culvert uptoMarapalam and the plaintiff offered to work for a sum ofRs.27,12,898/- and he being the lowest tenderer, his tender wasaccepted by the third defendant and work order was given by the 4thdefendant on 20.10.1994. The work could not be carried outbecause of heavy rain and due to technical defect caused by thedepartment in preparing the plan and estimate and because ofinadequacy of planning and flaw in technical guidance, he sustainedheavy loss due to escalation of prices. The plaintiff did the workto the tune of Rs.7,36,590/-. But he was paid only Rs.5,93,200/-. Asum of Rs.88,920/- was deducted towards cement supplied by thedepartment and a sum of Rs.16,314/- was withheld by the departmenttowards income tax and security deposit recovery. Still thedepartment has to pay a sum of Rs.38,148/- for having done the worktowards the value of Rs.7,36,950/-. As the department did not payRs.38,148/- due to him, the plaintiff could not get the refund ofsecurity deposit of Rs.72,649/- at 18% p.a. from 3.7.1996 to7.6.1999, which amounts to Rs.20,173/-. b. It is further stated that the plaintiff is alsoentitled to contract profit at 10% on the accepted tender minus theamount of work done by him due to the foreclosure of the contract bythe third defendant on 12.11.1998 and the plaintiff is entitled to asum of Rs.8,66,166/- from the defendants jointly and severally.After issuing notice to the defendants, the present suit has beenfiled for the recovery of a sum of Rs.8,66,166/- against thedefendants. 4. The defendants contested the suit by filing theirwritten statement inter alia contending that the plaintiff hasmiserably failed to complete the work in time and in fact only aportion of the work assigned was completed that too after in-ordinate delay and therefore, they sought for the dismissal of thesuit.5. Before the trial Court, on the side of the plaintiff onewitness was examined and Exs.A1 to A15 were marked and on the side ofthe defendants also one witness was examined and Exs.B1 to B13 weremarked. 6. On a consideration of the oral and documentary evidence,the Court below partly decreed the suit in favour of the plaintiffdirecting the defendants to pay jointly and severally a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.2,08,346/- with interest at 12% p.a. 7. Aggrieved by the same, both the plaintiff and thedefendants have filed the appeals as aforesaid. 8. The points for consideration in these appeals are:- a. Whether the plaintiff is entitled for the actual balanceamount of Rs.38,148/- or not?b. Whether the plaintiff is entitled for the return of theE.M.D. Amount. c. Whether the plaintiff is entitled for the contractprofit at 5% as awarded by the Court below ?d. Whether the plaintiff is entitled for the interest forthe said amounts, if so, from which date ?9. Heard the learned counsel for the appellants and therespondents in both the appeals. 10. The learned counsel for the appellant/plaintiffvehemently contended that though there was laches on the part ofthe Government, the Government has foreclosed the contract work givento the plaintiff and because of that he has incurred loss undervarious heads and therefore, he prayed that the appeal filed by himhas to be allowed. 10a. Further, the learned counsel for theappellant/plaintiff has confined his argument only in respect ofthe amount payable under the two heads, namely, the balance amount ofRs.38,148/- and the E.M.D. amount. 11. Per contra, the learned Additional Govt. Pleadercontended that they have also filed the appeal questioning the awardof the amount under two heads, which have to be rejected and furtherhe contended that the claim of the appellant/plaintiff has to benegatived since the laches is only on the part of theappellant/plaintiff in not completing the work in the given timeand because of that the Government has incurred revenue loss.12. I have considered the aforesaid submissions and perusedthe materials available on record. 13. It is not in dispute that the work order has beengiven on 20.10.1994 and the work was commenced on 25.2.1995 and thework was foreclosed by the third defendant on 12.11.1998. It isalso not in dispute that the contract work was awarded atRs.27,12,898/- and the plaintiff has received only Rs.5,93,200/-. https://hcservices.ecourts.gov.in/hcservices/

14. After elaborately considering the oral and documentaryevidence, the trial Court has come to the conclusion that thebalance amount of Rs.38,148/- has to be paid to theappellant/plaintiff for the work done by him. 15. A perusal of the evidence also shows that for the workdone by the plaintiff, he is entitled to claim a sum of Rs.38,148/-.Though the learned Additional Govt. Pleader contended that theappellant/plaintiff is only entitled for a sum of Rs.27,047/- nodocumentary evidence has been produced either before the Court belowor this Court and therefore, the Court below has come to the rightconclusion that on the measurement the plaintiff is entitled for thebalance amount of Rs.38,148/- and in such circumstances, I am ofthe view that the plaintiff is entitled for the balance amount ofRs.38,148/-, which has to be paid by the defendants. 16. As far as the E.M.D. amount is concerned, the trialCourt has rightly held that as per the agreement under Ex.A1 theE.M.D. amount is only a sum of Rs.71,383/- and not Rs.72,649/- asclaimed by the appellant/plaintiff and therefore, I am of the viewthat when the contract is foreclosed, the E.M.D. amount is liableto be returned to the appellant/plaintiff and accordingly, theappellant/plaintiff is entitled to get a sum of Rs.71,383/- towardsE.M.D. amount and not Rs.72,649/- as claimed by theappellant/plaintiff. 17. As far as the claim of contract profit is concerned,though the plaintiff claimed the contract profit of 10% on theaccepted tender minus the amount of work done by him to the tune ofRs.1,97,630/-, the Court below considering all the circumstances,awarded 5% on the accepted tender minus the amount of work done bythe plaintiff, namely, Rs.98,815/-. 18. The learned counsel for the appellant/plaintiffcontended that the price has been escalated and 10% interest on thecontract profit is generally given in these type of contract cases.Considering the escalation of price, the contract profit may beawarded as prayed for. 19. On the other hand, the learned Additional Govt. Pleadercontended that since the plaintiff accepted the tender, the questionof escalation of price does not arise. Since there is laches on thepart of the appellant/plaintiff in completing the work in the giventime, the appeal has to be dismissed. 20. However, I am of the view that the amount ofRs.98,815/- towards contract profit awarded by the Court below ison the higher side and I am inclined to restrict the same to thetune of Rs.50000/- and accordingly, the same is awarded. https://hcservices.ecourts.gov.in/hcservices/

21. Since the appellant/plaintiff is legally entitled forthe above said amounts, namely, the balance amount of Rs.38,148/-,the E.M.D. amount of Rs.71,383/- and Rs.50000/- towards contractprofit, the said amounts shall be paid to the appellant/plaintiffwith interest at the rate of 12% p.a. from the date of foreclosure ofthe contract, namely, 12.11.1998. 22. For the aforesaid reasons, the appeal filed by theplaintiff in A.S.No.26 of 2003 is partly allowed to the extent asindicated above, whereas the appeal filed by the defendants inTr.A.S.No.252 of 2007 is also partly allowed by reducing the contractprofit to Rs.50000/- from Rs.98,815/-. However, there will be noorder as to costs. 23. The judgment and decree of the trial Court is modifiedto the effect that:-The plaintiff is entitled for :- a. The balance amount of Rs.38,148/- for the work done by him;b. Rs.50000/- instead of Rs.98,815/- towards contract profit; c. Rs.71,383/- towards E.M.D. amount and all the saidamounts shall be paid to the appellant/plaintiff with interest atthe rate of 12% p.a. from the date of foreclosure of contracti.e.12.11.1998 till realisation. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarrnbToThe Additional Subordinate Judge, Pondicherry. 2 cc to M/s.G.M. Mani Associates , Advocate, Sr.No.463342 cc To Government Pleader, SR.No.46416 and 46418 A.S.NO.26 of 2003 and Tr.A.S.No.252 of 2007ksk(co)pmk.14.10.2011