R.Kannaiyan v. The Secretary Highways and Rural Works, Chepauk, Chennai-5

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :26.06.2009CORAMTHE HONOURABLE MR.JUSTICE M.VENUGOPALAPPEAL SUIT No.222 of 2001- - - -R.Kannaiyan... Appellant / Plaintiff Vs.

The Secretary Highways and Rural Works, Chepauk, Chennai-5.

Chief Engineer, Highways and Rural Works, Chepauk, Chennai-5.

Superintending Engineer (H) Highway and Rural Works, Trichy Road, Coimbatore.

Divisional Engineer, Highways and Rural Works, Bombay Castle, Ooty.

Assistant Engineer, Highways and Rural Works, Guddalore Via, Ooty.... Respondents/DefendantsAppeal suit filed under Section 96 of Code of Civil Procedure, against the judgment and decree dated 31.08.1999 in O.S.No.137 of1993 on the file of the III Additional Sub-Judge, Coimbatore. For appellant: Mr.P.Saravana SowmiyanFor Respondents : Mr.V.Ravi, A.G.P.J U D G M E N TThe appellant/plaintiff has preferred this appeal as against thejudgment and decree made in O.S.No.137 of 1993 on the file of thelearned III Additional Subordinate Judge, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

2. The necessary facts of the appellant/plaintiff's case are setout below: (i)The appellant/plaintiff is a Contractor doing civil work likeconstruction of buildings, laying of road bridges etc. Theconstruction work of a bridge at kilometre 5/4 of Hellan Yellamalairoad in Nilgiris District has been entrusted to theappellant/plaintiff as per agreement No.C.R.22/85-86 dated 11.9.1985.The said agreement has been signed by the appellant and the Superintending Engineer (Highways and Rural Works) Coimbatre. Infact, the said agreement has been signed at Coimbatore by theappellant/plaintiff and the third respondent/third defendant prior tothe agreement, tenders have been called for at SuperintendingEngineer viz., the third defendant and that the appellant/ plaintiffhas accepted and the contract has been settled for Rs.21,27,373/-.(ii)The appellant/plaintiff in terms of the agreement dated11.9.1985 has to complete the construction of the bridge within aperiod of 1 1/2 years from the date of handing over the site to theappellant.

The respondents 4 and 5/defendants 4 and 5 have beenacting according to the instructions of the third respondent and theyhave been dealing with the appellant at the works spot. therespondents 3 to 5 have agreed to hand over the site plan, detailedplans, and copies of the agreement etc. to the appellant/plaintiffbefore the commencement of the work. The appellant/plaintiff has notbeen in a position to start the construction work in the absence ofspecific plans and copies of agreement which have to be handed overwith the signature of the third respondent/ third defendant, theappellant/plaintiff has not been in a position to start theconstruction work immediately in view of the inordinate delay inhanding over the documents mentioned supra. The appellant/plaintifflater has inspected the site at Yellamalai road and to his surprisehas found some huts, RCC terraced building and the same have beenreported to the fourth respondent/fourth defendant as per letterdated 11.12.1985.(iii)The appellant/plaintiff has been threatened by the localpeople since they have raised an objection to the bridge on thefooting that the excavation of hard rock work and blastering hardrock will endanger the private properties.

The RCC terraced buildingwill have to be demolished before the commencement of the work. Therespondents 3 to 5/defendants 3 to 5 have failed to take proper stepsfor clearing the sites for the commencement of the work. Theappellant/plaintiff has received the copy of the agreement and planon 21.2.1986, after a delay of about five months as per the AssistantDivisional Engineer Gudalur's letter dated 21.2.1986. Theappellant/plaintiff has to excavate the earth to a depth of six metreuntil hard rock has been found. when the appellant/ plaintiff hascommenced the excavation work, he has not found the hard rock, even https://hcservices.ecourts.gov.in/hcservices/ after the earth has been prepared on the basis that hard rock can bestruck at 6 metres as per the samples bore and a boring chart havebeen prepared and this has been reported to respondents 3 to 5immediately and they have been orally instructed to stop the work.

The respondents 3 and 4 have been informed the plaintiff that thework can be resumed after obtaining sanction from the Chief Engineerfor the revised designs. In the meanwhile, in July 1986 there hasbeen heavy flood, due to which the earth work already done has gotsilted heavily. (iv)When the appellant has asked the department either to removethe silt or separate the payment for silt clearance, the respondents3 to 5 have replied that the appellant/himself has to do the same inpursuance of the terms and conditions of the agreement. However, theappellant/plaintiff has cleared the silt only with a good intentionto carryout the work without any further delay at his own cost and inthis regard, the appellant has expended a sum of Rs.23,323.06/-.(v)The sand required for the work as per agreement will have tobe brought from Kakkanalla, which is at a distance of 36 kilometresfrom the site. During excavation it has been found out that thequarry Kakkanalla lies under the jurisdiction of Reserve Forest area(wild life) and hence the sand cannot be taken from this quarry.

TheForest Department has objected for it and has not permitted theappellant/plaintiff to take sand from quarry. When theappellant/plaintiff has reported the said fact to respondents 3 to 5,they asked the appellant to bring the sand from Nilambur in Keralawhich is at a distance of 87 kilometres from the site area. Thefourth respondent/fourth defendant (Divisional Engineer) by virtue ofhis letter dated 29.9.1987 has agreed to pay for the expenditureincurred on account of extra expense of Rs.71,913.60.(vi)The appellant/plaintiff has to perform the work and fixing of Elastomsetric Rubber bearings of 500 x 320 x 84 mm including the costof conveyance to work site, labour for fixing the bearing in correctposition and all other incidental charges etc. for a total amount ofRs.28,800/- in terms of the agreement. (vii)The fifth respondent/fifth defendant as per his letter dated25.11.1988 has asked the appellant/plaintiff to purchase the NeoprinBearings together with its test certificate for fixing as in positionand the same have been purchased from M/s.Killick Nickson CompanyLimited, Bangalore by the Department and a sum of Rs.14,976/- hasbeen paid through cheque dated 1.12.1988.

Though the Department haspurchased the bearing, the appellant/plaintiff has brought the samefrom Bangalore to work site and fixed them in position at the cost ofthe plaintiff, as per the direction of the Department officers. A sumof Rs.13,824/- has to be paid towards reimbursement cost in bringingthe bearings from Bangalore to the work site etc. The https://hcservices.ecourts.gov.in/hcservices/ appellant/plaintiff is also entitled to claim the interest for theaforesaid amount. (viii)The portion of the site only has been made available in February 1988 and that too after the delay of two years and theconstruction work of abutment at Yellamalai has been completed in October 1989 and the payment has been made during October 1989 andthe appellant/plaintiff has received the same under protest becausethe amount paid has not been admitted by the appellant. Theappellant/plaintiff has incurred a total loss of Rs.3,93,274/-because of the inordinate delay by means of fixing in correct quarry, not removing the encroachment, revising the design after the work hascommenced and stoppage of work.

The break-up details for the loss ofRs.3,93,274/- is as follows: Silt clearance workRs. 23,323.06Extra lead involved involved in thetransfer of sandRs. 71,913.60Conveyance charges and labourcharges for Neoprin Rubber bearingRs. 13,824.00Difference in rates between the year1983-84 and 1989-90Rs.2,84,213.65---------------Rs.3,93,274.31---------------(ix)The appellant/plaintiff is entitled to claim the interest at18% per annum because the transaction is of a commercial nature, fromthe date of filing of the suit till date of realisation. Hence, thesuit is *filed for the recovery of a sum of Rs.3,93,274/- withsubsequent interest at 18% per annum from the date of suit till thedate of realisation and for costs. 3. In the written statement filed by the respondents 4 and 5(defendants 4 and 5) and adopted by third respondent, it is interalia averred that there is no agreement to furnish the site plan, detailed plan and copies of the agreement and in fact, the copies ofthe agreement have already been given to the appellant/plaintiff andif at all, the appellant requires any plan, he can simply get such adocument by a requisition in writing to the concerned official evenapart from any agreement and without any recital in the agreement theappellant has averred in the plaint in regard to the alleged documentand non furnishing of the same as though the officials have committedfault etc. and that the huts and RCC terraced buildings are situateonly in the approach side entirely in a different side altogether, which has nothing to do with the construction and with a constructionof the bridge in the place in question or in the work site and https://hcservices.ecourts.gov.in/hcservices/ because of the some encroachment at some place it does not mean thatthe appellant's works has been stagnated by the huts and RCC terracedbuildings situate on the other end of the work site and noobstruction has been caused in any manner and therefore, the questionof removal and the obstruction do not arise at all.

4. It is also the stand of the respondents 3 to 5 that theexcavation of hard rock work or blastering of hard rock never be anendanger to any private properties and for commencing the work nobuilding need be removed or demolished and nothing has been happenedand the department has taken necessary steps to remove theencroachment and that the Government property has been recovered andthis lawful action has nothing to do with the construction of work orwith the commencement of the work. As such, there has been no delaythat too for a period of five months as averred by the appellant. 5. The appellant/plaintiff has failed to start the work afterhaving deleted the matter, the appellant has chosen to state thatbecause of the encroachment and all other reasons projected by him, the delay has occurred and the reasons are all false one. Before thesubmission of his tender, a duty is caused on the appellant/plaintiffto satisfy and verify himself in regard to the hard rock and thedepth.

When the hard rock depth has been found out beyond 6 metres, the Chief Engineer has revised the rate and the excess amount hasalso been paid and the accounts have been settled. In regard to theflood silting and earth slips and structural collapse are concerned, these are all Acts of God and hence, the respondents are notresponsible for these happenings, the respondents are not liable topay the amount of Rs.23,323.06 towards silt clearance work and it isoutside the scope of the agreement. There has been no agreement formaking payment towards silt clearance and as such, the claim of theappellant is arbitrary and a baseless one. The appellant has notspent a large amount of Rs.23,323.06 towards silt clearance and thatthe expenditure incurred in this regard he has to bear the same byhimself and he cannot pass on the buck on the respondents. In view ofthe provision contained in the agreement itself to which theappellant is a party, the appellant is not entitled to turn round andmake the claim.

The appellant/plaintiff has a contractor's duty will have tosecure sand for any work and after entering into the agreement it isnot open to him take a plea that the sand is not available in thequarry and he has been perforced to take the same from a distantplace and therefore, he has incurred an expenditure which must bepaid by the Department. Whatever expenditure met by him he has to payand it is his liability to look after the same. The appellant is toprove that he has expended Rs.71,913.60 and he must establish thatthe respondents are liable to pay the said amount. Therespondents/defendants have not agreed to pay any extra amount, because it is the bounden duty of him to secure sand from the quarry https://hcservices.ecourts.gov.in/hcservices/ or from a distant place. The appellant/plaintiff cannot put the blameon the department and after having entered into an agreement then itis his duty to secure the sand from each and every place he likes. The appellant is not entitled to claim extra amount beyond the scopeof the agreement.

The appellant/plaintiff has nothing to do with the bearings andhe has not spent any amount towards the bearings and they are allfalse suits. As such, the question of reimbursement does not arise. The appellant is not entitled to claim a sum of Rs.13,824/- or anyother amount. No loss has been sustained by the appellant to anextent of Rs.3,93,274/-. There has been no difference in ratesbetween 1983-1984 and 1989-1990 to an extent of Rs.2,84,213.65 so asto enable him to claim such an amount at a belated stage. If at allthe rates have been changed from the year 1983-1984 and 1989-1990 heshould have obtained sanction for the different amount prior to thecommencement of the work or atleast he should have entered into afresh agreement with the department. By accepting the specific tenderfor a specific amount as per agreement it is not open to theappellant to claim the difference amount in rates and he is estoppedfrom doing so. The subject matter is a contractual transaction and itis not a commercial one. There is no agreement for payment ofinterest the appellant is not entitled to claim any interest at all. The suit filed by the appellant is speculative. There is no cause ofaction for the suit and the cause of action alleged is false. Thesuit has framed as not maintainable.

After completion of the work as a willing and consenting partythe appellant/plaintiff has settled entire amount and he has receivedthe EMD, FDS amounts held by the Department and that too after theobservation period and as such, the agreement has come to an endafter the same having been fulfilled. Therefore, theappellant/plaintiff is precluded from reopening the matter and tocontend differently without recourse to the arbitration clause etc.the filing of the present suit is a premature one and the same is notmaintainable in law.

The appellant/plaintiff has not issued a mandatory notice asper Section 80 of the Civil Procedure Code. Therefore, the suit is tobe dismissed with exemplary costs.

On the basis of the above pleadings, the trial Court hasframed four issues. On the side of appellant/plaintiff, witness P.W.1has been examined and Exs.A.1 to A.32 have been marked and on theside of respondents /defendants, D.W.1 has been examined and Exs.B.1to B.20 were marked. On an appreciation of oral and documentaryevidence and on consideration of available material evidence onrecord, the trial Court has resultantly dismissed the suit with costs.

The point that arises for consideration is: https://hcservices.ecourts.gov.in/hcservices/ Whether the appellant/ plaintiff is entitled to claim the sum ofRs.3,93,274/- with subsequent interest at 18% per annum from the dateof filing of the suit till date of realisation from the respondents/defendants together with costs?12.Findings: The appellant/plaintiff as P.W.1 in his evidence hasdeposed that for constructing a bridge Ex.A.1 agreement has beenentered into between the parties at Coimbatore and the time limitprescribed under the agreement is 18 months and before the completionof the 18 months the work has to be completed and that the plan hasbeen furnished during February 1986 and from the date of siteclearance the time limit for the agreement is 18 months and furtherthat the site has not been cleard on Ex.A.1 agreement dated 11.9.1985and in the site there have been shops and buildings in existence andthat he has written a letter Ex.A.2 and the site has been cleared inentirety and handed over to him only during February 1988 and that hehas completed the work during April 1989 and since the site has notbeen cleared by the defendants, there has been a delay in regard tothe completion of the work an since he has constructed the bridge in1989 he has to be paid as per the tender prize amount and there isdifference between the 1984 tender amount and the 1989 tender amount.

It is the further evidence of the P.W.1 that when excavationwork has been done upto a depth of 6 metres then there has been onlya clay place and he has dug up to a depth of 6 metre breadth and 13metre length and further that he has not been given the prize amountfor bringing the sand from a distant of 100 kilometre from Neelamburand he has been given only a prize list for obtaining the sign from Kakkanalla only from a distant of 35 kilometres.

Added further, the P.W.1 during the course of his evidence hasdeposed that during October 1989 he has completed the work for whichhe has been given a cheque one month later and that he has receivedthe same with objections and because of the respondent/defendant'sactivity he has incurred a loss and it is incorrect to state that hehas to procure the sand, iron rods and since the delay has beencommitted by the respondents/defendants he has to be given the amountas per 1989 rates.

D.W.1 in his evidence has stated that the plaintiff hasaccepted the suit site on 02.3.1986 as per Ex.P.4 and after acceptingthe same he has signed in the said document and on 11.2.1986 theplaintiff has asked for the approved plan and that the same has beenfurnished by the defendants on 21.2.1986 and 02.3.1986 the plaintiffhas accepted the site work place officially and he has received theapproved plan before the 2nd March 1986 and as per Condition No.33and as per Condition No.47 the plaintiff has to do the bore work inhis individual capacity and to rectify the same and the corrected mapis Ex.A.3. https://hcservices.ecourts.gov.in/hcservices/

Continuing further, it is the categorical evidence of D.W.1that as per Condition No.39 of Ex.B.1 if any delay is caused beyondthe control of the department during the execution of the work thenfor causing such delay the department is not responsible and that asper condition No.59 the contractor has to take an insurance towardsall risks and that the iron rods have been given by them and that itis not the work of the defendants to supply grips.

The Condition No.25 in Ex.B.1 Tender Document enjoins that'the prices at which and the source from which certain materialsshall be obtained by the Contractor are given at ... of the scheduleaccompanying the tender form etc. and notwithstanding any subsequentchange in value for those materials the charge to the Contractor willbe as originally entered in the written contract.'

In the clause 33 in Ex.B.1 Tender document it is laid down asfollows: "In tender when submitting the tenders shouldcertify in the tender that they actuallyinspected the site before tendering for the worksand have examined before tendering the nature andextent of various kinds of soils at variousdepths and any deviations from these given bydepartment and have based their tenders on suchexamination by them. "

In the present case on hand, the conditions of Ex.B.1 tenderplays a significant part and therefore, it is useful for this Courtto extract the relevant clause 39 which runs as follows: "If any delay is caused beyond the control of thedepartment during the execution of the work, suchas acquiring lands, concurrence from otherdepartments of supply tools and plants andcement, the department will not bear anyresponsibility. "

The other condition clause 47 also goes on to point out thatthe levels are furnished in the plan are based upon the investigationdone by this department. If there be any change in levels, waterlevels etc., during actual execution, the contractors are bound toaccept them and they are not eligible for any extra claim for suchchange in levels. Apart from the above two conditions the conditionNo.58 in Ex.B.1 also point out that the contractor should take riskinsurance at his cost, loss due to unpresented floods and other Actsof God as per G.O.Ms.No.620 TD dated 22.7.1978.

In the Standard Specifications for Road and BridgeConstruction, in the chapter 1 Preliminary Specification it ismentioned under the caption PS:102 Scope 102-01 Scope of PreliminarySpecification that the same shall form an inseparable condition of https://hcservices.ecourts.gov.in/hcservices/ contract in all agreements entered into by Contractors for executingworks for the Madras Highways Department, and it shall not benecessary to append a copy of the specification to the agreement andif any of these conditions are not applicable to any particularcontract or system of contracts, it will be clearly indicated in thetender notice. Furthermore, in Preliminary Specification 102-02 underthe head Applicability of Standard Specifications it is stated that'All work shall be performed in conformity with the StandardSpecifications. The relevant portions shall be designated in thecontract documents by the appropriate Standard Specification number. The text of such Standard Specification will not be recited in thetender documents. Every Contractor who tenders for or executes a workin the Department shall be deemed to have a through understanding ofthe Standard Specification in so far as they govern that work.

In case there is no Standard Specification for any particularitem of work, or the Standard Specification needs to be modified thenecessary additional specification or modification shall be set forthin detal as special provisions in Schedule C.'

As a matter of fact, in para 102-04 under the Delegation of Powers it is stated as follows: "Provided always that the authority who hasaccepted the agreement for the work shall make nodelegation of powers to his subordinate in respectof orders and decisions concerning the extensionof time for completing the contract or any othermatter in which his decision is to be final andconclusive, the orders of the Engineer in thesematters shall be subject to his ratification. " Also in para 103-03 of the Preliminary Specification in regard tothe examination of plans, specifications, special provisions and siteof work it is laid down as follows: "The bidder is required to examine carefully thesite of the work, the proposal, plans, specifications, special provisions, and contractforms for the work contemplated; it will beassumed that the bidder has investigated and issatisfied as to the conditions to be encounteredfor performing the work as scheduled or as at anytime altered in conformity with PS:105-04. It ismutually agreed that submission of a tender shallbe considered conclusive evidence that the bidderhas mad such examination and is satisfied as toall the conditions and contingencies. "Therefore, from the reading of clause 103.03 it is quite evident thatthe submission of tender is deemed to be a conclusive proof that abidder has made such an examination has envisaged in the clause and https://hcservices.ecourts.gov.in/hcservices/ he has satisfied himself in regard to all the conditions andcontingencies.

It is not out of place to point out that para 107-02 of thepreliminary specification goes on to say 'All materials shall beobtained from the sources designated in the contract. The excavationof materials from sources designated in the contract shall be underthe direction of the Engineer at all times in so far as selection ofmaterial or exact location of excavation is involved. If sourcespreviously approved are found to be unacceptable at any time and failto produce materials satisfactory to the Engineer, the Contractorshall furnish materials from other approved sources. The Contractorwill not be reimbursed for any expense in developing the new source, but allowance or deduction will be made as the case may be, for theincrease or decrease in cost due to an increase or decrease in thelength of haul and further, the change to the new source initiated bythe Contractor shall not be a ground for his demanding anycompensation or extension of time.'

As per the preliminary specification terms and conditions theappellant/plaintiff has signed the same and he has only made a claimfor the tender knowing fully well about the consequences.

On a careful consideration of Ex.B.1 tender conditions and thedifferent clauses of the Preliminary Specification mentioned earlierand also taking note of Ex.A.1 document, this Court comes to theinevitable conclusion that the terms and conditions are fully loadedagainst the appellant/plaintiff and before ever he has signed thesame with an open eyes he is certainly aware of the terms andconditions and therefore, at a later point of time, it is not open tothe appellant/plaintiff to take a different plea than what he hasagreed to abide by the same. In fact, the appellant/ plaintiff hasobtained Ex.A.27 report in regard to the loss sustained by him and hehas obtained the same from an Engineer. The said Engineer who hasfurnished the Ex.A.27 document has not been examined before the trialCourt. Even though the appellant/plaintiff has claimed a sum ofRs.71,913.60 paise for bringing the sand from Neelambur in KeralaState no documents like bills, receipts have been produced andtherefore, the claim of appellant/plaintiff in this regard fails inthe considered opinion of this Court. Moreover, as seen from Ex.B.17Measurement Book and the notes Ex.B.18 to 20 the job of fixing rubberbearings have been performed by the Technical Assistants and as suchthe claim of Rs.13,824/- made by appellant/plaintiff is ill-foundedand the plaintiff fails in this regard.

Also as per Standard Specifications for Road and BridgeConstruction clause 108-04 Public Safety, 108-06 responsibility fordamage claims, 108-07 use of Explosives, 108-08 Protection and Restoration of Property are all to be the responsibility of theappellant and that the Highway Department have lent a helping hand in https://hcservices.ecourts.gov.in/hcservices/ regard to the removal of encroachment as evidenced from documentsEx.A.4, 6, 11, 12, 28, Ex.B.6 and B.14. Continuing further, it isevident that there is no encroachment at all from 2.6.1986 when thework place has been handed over to the appellant. Even though thereis no contract between the parties for supply of grips toappellant/plaintiff and the steel rods have been in sufficient stockas duly informed to the appellant/ plaintiff by the HighwaysDepartment, no steps have been taken by the appellant/plaintiff toreceive the grips in the considered opinion of this Court.

Apart from the above, there is no *covenant in regard to theprice rise/escalation charges in Ex.A.1 Contract and this has beenadverted to in Ex.B.6 notice dated 01.9.1987 sent to theappellant/plaintiff by the Divisional Engineer. From the date oftaking possession of the work place i.e. 02.3.1986, theappellant/plaintiff has to complete the work within 18 months thereofafter getting necessary materials. Furthermore, the suit transactionis not a business one and in S.S.R.B. specification clause 110-11 aContractor is not entitled to claim interest upon any guarantee fundor payment in arrears etc. and for the completion of job contract, the appellant is not supposed to claim interest, much less theinterest of 18% per annum.

Suffice it for this Court to point out that as per PreliminarySpecification 102-04 under the delegation of powers theappellant/plaintiff for construction of bridge has accepted Ex.A.1and therefore, as per Ex.B.1 tender conditions since theappellant/plaintiff has not taken an insurance towards all risks thenone cannot lend a helping hand. Moreover, in the clause 47 of Ex.B.1tender conditions specifically speaks of ineligible of the appellantto make an extra claim for the change in levels, therefore, lookingat from any point of view even though the appellant/ plaintiff hasmade a tall claim to the suit amount together with interest andexemplary costs and this Court is of the considered view that theappellant/plaintiff after having entered into an agreement Ex.A.1having the terms and conditions in view of the fact that the StandardSpecifications for Roads and Bridge Construction clauses in therelevant paragraphs referred to supra in this judgment are all not infavour of the appellant/plaintiff and therefore, this Court comes tothe inevitable conclusion that the appellant/plaintiff is notentitled to the suit amount along with interest and resultantly, theappeal has no merits and the same is hereby dismissed to prevent anaberration of justice.