BY AD v. K.BABU THOMAS

THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON

11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = R.F.A.No.501 of 2007 = = = = = = = = = = = = = = = = = = Dated this the 11th day of January, 2024 JUDGMENT The decree for money is under challenge by the defendants.

2. On 16.03.1990, the plaintiff entered into an agreement with the defendants for the works of “PVIP constructing IBMC from ch.22978 m. to 23273 m. including CD works”. The time for completion was 24 months from the date of handing over of the site. The site was handed over on

02.04.1990. Therefore, the time for completion of the work was till 01.04.1992. However, the work was completed only on 30.06.1994. The plaintiff alleges that the delay occurred at the hands of the defendants. On the other hand, the defendants alleges that the breach was committed by the plaintiff. The suit was filed claiming enhanced rate for the work done beyond the period of contract and for the extra items/additional R.F.A.No.501 of 2007 -: 2 :- works done.

3. The defendants denied the allegation that they were responsible for the delay in completion of the work. It was also contended that the plaintiff had agreed to do the delayed works at the original rate, and hence the claim is not sustainable. They prayed for dismissal of the suit.

4. The trial court found that the defendants were responsible for the delay in completion of the work. It was also found that the plaintiff is entitled for enhanced rate for the work completed beyond the originally stipulated period. The claim for value for the extra works was also granted.

5. I have heard the learned counsel on either side.

6. The following questions arise for determination in the appeal; i) Is the finding of the trial court that the defendants were R.F.A.No.501 of 2007 -: 3 :- responsible for the delay in completion of the work, based on evidence? ii) In the light of the supplementary agreement executed between the parties, is the claim of the plaintiff for enhanced rate sustainable?

7. According to the plaintiff, one of the reasons for the delay was the failure to give unobstructed/unhindered possession of the site. Ext.B3(d) communication dated 29.12.1992 reveals that the telephone and electric posts in the alignment were shifted only in November, 1992. Though the defendants contended that there was no necessity to shift the posts since they were standing on the margin of the alignment, the contention is disproved by Ext.B2(o) and B2(g) letters dated 25.11.1992 and 12.03.1993, relating to widening of the road. Though the defendants would contend that there was no necessity to close the road and divert the traffic, the said contention falls to the ground in the light of Ext.B4(f) and Ext.B2(p) R.F.A.No.501 of 2007 -: 4 :- communications. As per Ext.B4(f), the proposal for diversion was approved and communicated to the plaintiff only on 06.01.1993. Ext.B2(g) reveals that 235 meters of PWD road was converted to canal. The work regarding formation of diversion road was even included in the supplementary agreement. The contention that there was no necessity to form diversion road is liable to be repelled as evidenced through Ext.B4(f) communication dated 06.01.1993 approving the proposal for diversion. Further, Ext.A4 dated 22.09.1990, Ext.B2(a) dated

30.12.1993, Ext.B2(f) dated 29.12.1993, Ext.B2(g) dated

25.02.1993 and Ext.B2(o) dated 25.11.1993, all relate to the diversion, shifting of alignment, increasing of the proposed width, etc. It is also on record that the extra works required for diversion of traffic was finalized only by 12.10.1992. The initial level measurements with regard to earth work and excavation was approved only by

18.12.1990. That there was delay in taking the initial R.F.A.No.501 of 2007 -: 5 :- level is proved by Ext.B4(g) dated 12.03.1993.

8. The quantity of rocks required to be blasted was increased by 40%. This is evidenced by Ext.B2(h). The delay in granting sanction for using the contractors' own earth for completion of the diversion road also resulted in the delay. It is having due regard to the above facts and documents that the trial court found that the defendants were responsible for the delay in completion of the contract. As has been noticed, there was delay in approving the level, handing over of the unhindered site, etc. Therefore, the finding of the trial court that the defendants were responsible for the delay warrants no interference. Point no.1 is answered accordingly.

9. The claim of the plaintiff for enhanced rate in respect of the work done after the contract period, is defended by the defendants relying on the supplemental agreements executed by the plaintiffs. In the R.F.A.No.501 of 2007 -: 6 :- supplemental agreements it was agreed that the plaintiff would claim only the rates fixed in the original contract. The defendants attempt is to pin down the plaintiff to the rates fixed in the original contract. The term of the original contract expired on 01.04.1992. A revised schedule of rates had come into force on

01.07.1992 as is evidenced by Ext.A2. The plaintiff had issued Ext.B3(a) letter dated 19.11.1992 to the defendants seeking termination of the agreement on payment of the value of the work already done, or if the work is to be continued, he may be paid the rates as fixed in Ext.A2. It is the plaintiff's case that, to get payment for the works done, he was compelled/required by the defendants to execute supplemental agreements agreeing to do the remaining works at the original rates. Under such coercion and duress, he had no other go, but to execute the supplemental agreements in the manner as demanded by the defendants. The above is R.F.A.No.501 of 2007 -: 7 :- fortified by Exts.A7 and A8 and also Exts.B3(a) and B4(b) communications. Exts.B3(a), B3(c) and B2(i) communications reveals the demands made by the plaintiffs for payment at higher rates, his protest and the circumstance under which the supplemental agreements were executed. Ext.A8 is one of the replies given by the defendants warning termination of the contract. Therefore, the plaintiff is justified in his contention that he was compelled by the circumstances to execute the supplemental agreements agreeing to do the remaining works at the original rate.

10. As noticed, extra schedule of rates came into force on 01.07.1992. There was hike in the rates by more than 60% over and above the rate fixed in the original agreement between the plaintiff and the defendants. The above is admitted by DW1 in his cross examination. Having found that the plaintiff cannot be pinned down to the rates fixed in the original contract, and Ext.X2 R.F.A.No.501 of 2007 -: 8 :- rates having had already been come into force by the time the original period of the contract expired, the plaintiff is entitled to such rates for the work done after the contract period. Taking into consideration the revised schedule of rates, the trial court has found that the claim of the plaintiff for enhancement of the rate by 40% was reasonable. No interference is called for with the said finding.

11. Yet another head of claim is the idling charges for the establishment, engineering, technical, supervisory and managerial staff, vehicles, machinery and equipments. Ext.B2(f) and Ext.A2 evidence the same. Inspite of the notification by the plaintiff, there was delay in handing over of obstruction free site to enable the plaintiff to do the work. The court was right in having granted idling charges for the said period.

12. Regarding the value for earth utilised by the plaintiff, the court, though relied on Ext.X2, which R.F.A.No.501 of 2007 -: 9 :- fixed Rs.90/- per cubic meter as the rate, granted only Rs.60.70/- per cubic meter. The same warrants no interference.

13. The damages granted by the court is based on materials and warrants no interference.

14. The court has granted only 6% interest on the amount payable and that too from the date of the suit till realisation. The decree is just and reasonable. Resultantly, the appeal fails and the same is dismissed. No cost. Sd/- SATHISH NINAN, JUDGE