Chief Engineer, Kashmir, Civil Construction Division, Power Development v. Mohd. Yasin Wani

Department, Srinagar/Jammu

3. Managing Director, J&K PDD, Srinagar …… Proforma Respondent(s) Through: Mr S.F.Qadiri, Senior Advocate with Mr Syed Mansoor, Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT

1. Challenge in this appeal is thrown to judgement and decree dated 8th November 2005, which has been passed by the court of Principal District Judge, Srinagar, in a civil suit titled as Mohd. Yasin Wani v. State of J&K and others, and setting-aside thereof is sought.

2. I have heard learned counsel for parties and considered the matter. CFA no.04/2006

3. It is case of appellants that for design, supply, launching erection, testing, commissioning, including deck slab of steel trussed/girder super structure through type 2x25M (Clear Span) Bridge on Sindh Nallah near Prang on the Link Road to Power Canal with allied civil works, tenders notice was floated. All the works were to be executed on turnkey basis. Payments were to be made only after works are completed in all respects and handed over after test and checked by concerned agencies. Respondent no.1, as is also stated by appellants, participated in tender process. His tender was found lowest. Accordingly, contract was allotted to him. There were other certain allied works with above work which were also to be allotted to contractor. Agreement was executed. Work was to be completed within 09 months. Instead of completing work, contractor asked for payments. Contractor stopped and left the work.

4. Contractor/respondent filed a civil suit before the Trial Court. He prayed for a decree for recovery of Rs.86.00 Lacs along with interest from December 1996 till final realization. Defendant no.4 – Executive Engineer, Civil Construction Division- II, JVGHRD Ganderbal, in which it was stated that drawing of formal agreement was delayed by contractor for which measures were employed from time to time and that till the work was fully test commissioned to its designed load of Class-A, the contract money did not become due and therefore plaintiff had no right to claim enforcement of contract which was violated by him. It was also stated in written statement that for executing the work of construction of new bridge, old bridge was to be dismantled and Rs.1.5 Lacs was given to contractor for dismantling old CFA no.04/2006 bridge and timber thereof was obtained by contractor. Plaintiff committed breach of contract and agreement.

5. Taking into account rival contentions of parties, the Trial Court framed following issues for adjudication: (i) Whether plaintiff is entitled to an amount of Rs.86.00 Lacs with interest and damages from defendants on account of having completed the construction of allotted works? OPP (ii) Whether plaintiff is liable to pay an amount of Rs.4.88 Lacs to defendants as cost of timber? OPD (iii) Whether plaintiff has not completed the allotted works, if so, what is its effect upon the present suit? OPD (iv) Whether no notice u/s 80 CPC has been served upon the defendants? OPD (v) Whether plaintiff has no cause of action against the defendants? OPD (vi) Relief.

6. Plaintiff/respondent, on direction of the Trial Court, produced and examined the witnesses, namely, Ali Mohd. Mir; Mohd. Amin Bhat is A- Class contractor; Sonaullah Lone; Mohd. Nayeem; Showkat Ahmad Shahdad; besides plaintiff himself. Defendants also produced and examined the witnesses, namely, Ghulam Jeelani; Mohd. Yousuf Zargar; Ali Mohd. Parray. By virtue of impugned judgement and decree, the Trial Court has held plaintiff/respondent entitled to recovery of Rs.86.00 Lacs from defendants along with simple interest @ 9% from the date of institution of the suit till realization of the decretal amount. Plaintiff has also been held entitled to Rs.10,000/- for having paid on watch and ward for the timber of the dismantled bridge. However, the Trial Court has made it clear that Rs.4.88 Lacs shall be deducted from the decretal on account of the timber of the old bridge allotted to plaintiff on auction basis.

7. Learned counsel for appellants has stated that the Trial Court has not considered this aspect of the matter that the contract was on turnkey basis CFA no.04/2006 and in a case where work is on turnkey basis, it is to be presumed that contract is to be completed and payment can be made only after completion of work in all respects. He also avers that proper course of the Trial Court was to dismiss the suit and that it has nowhere been pleaded or provided at any point of time that contractor was asked not to lay the slab. The agreement specifically provides that contractor has to continue to work unless he receives written orders in contrary from Divisional Office. It is neither case of contractor in his pleadings nor any evidence has been led by him that he was asked to stop the work. It is also averred that Trial Court has relied upon two communications dated 29th September 1999 and 17th February 2000. The said communications have no bearing on the subject inasmuch as these letters had been internal correspondence between the department and not even a copy of the same was endorsed to respondent no.1 nor at any point of time he has been asked to stop the laying of the slab on the basis of two letters, though the authors of the letters are not even party to the suit. On the basis of pleadings, certain issues were required to be framed which issues were not framed by the Trial Court. Entire record was produced before the Trial Court but it did not properly appreciate and consider the record, although relationship of respondent and appellant is governed by terms and conditions of the contract and agreement.

8. Perusal of impugned judgement would reveal that before the Trial Court a reference had been made by learned counsel for respondent to communication bearing no.CE/KCC/PDC/130-34 dated 28th April 1998, addressed by Chief Engineer to Managing Director, PDC, regarding approval/clearing the work technically and the letter also mentions that CFA no.04/2006 work had already been executed and another communication bearing no.CE/KCC/PDC/ 404-45 dated 29th September 1999, addressed by Chief Engineer to Managing Director, in which instructions had been sought for the agency, i.e. contractor, for laying the slab over the bridge and also for arranging funds for clearance of work done liability. Reference appears to have also been made to another communication no.CE/KCC/PDC/ 647- 48 dated 17th February 2000, in which Chief Engineering, Civil Construction, PDC, Srinagar, wrote to Managing Director, PDC, Srinagar, that some decision regarding laying of slab of the bridge was yet to be taken and that decision be taken at the earliest. A reference had also been made before the Trial Court to Revised Agenda Note for Cost Estimate Engineering Committee for construction of Steel Bridge at Preng and other Civil Works, in which Chief Engineer had in addition to other things stated that the only bottleneck was to lay deck slab over the already launched bridge which was pending and as such request was made for issuance of orders for laying deck slab and that because no decision was taken by defendants/appellants, as such, great loss was caused to plaintiff/contractor and that he was denied payment of the amount which was due to him.

9. While considering the first issue, viz. whether plaintiff is entitled to an amount of Rs.86.00 Lacs with interest and damage from defendants on account of having completed the construction of allotted work, the Trial Court found that evidence on record shows that in fact the plaintiff/ respondent had executed the work allotted. He had constructed the steel bridge at Preng, executed the allied works and in fact the deck slab could not be laid because no decision was taken by defendants for clearance of CFA no.04/2006 laying the deck slab, which fact is evident from letters dated 29th September 1999 as also 17th February 2000. The witnesses produced and examined by plaintiff/respondent before the Trial Court also established the case of plaintiff that because of indecision of defendants/appellants, the deck slab could not be laid by plaintiff/ respondent. The Trial Court on perusing official record of appellants/ defendants found that on account of construction of steel bridge except laying of deck slab, which was not done due to indecision on the part of defendants/ appellants, the plaintiff/respondent is entitled to an amount of Rs.86.00 Lacs. Accordingly, the Trial Court decided issue no.1 in favour of plaintiff and against defendants.

10. While deciding issue no.2, the Trial Court has held that plaintiff is liable to pay an amount of Rs.4.88 Lacs to the defendants as cost of timber but after deducting Rs.10,000/- paid by plaintiff on watch and ward of timber.

11. After deciding all issues, the Trial Court has rightly passed impugned judgement, decreeing the suit of plaintiff/respondent, which does not call for any interference in view of above discussion.

12. For the reasons discussed above, the appeal fails and is, accordingly, dismissed with connected CM(s) and as a consequence of which, impugned judgement and decree is upheld. Interim direction, if any, shall stand vacated.

13. Copy of this judgement along with record be sent down. Srinagar 27.09.2024 Ajaz Ahmad, Secy. Whether approved for reporting? Yes/No. (Vinod Chatterji Koul) Judge CFA no.04/2006