V.V. Vaze, J.
1. A notice inviting tenders for the construction of a bridge across Nilkantha River in File No. 7/7 of Barsi Tuljapur Road, was issued by the Executive Engineer of Sholapur (B. and C. Division). The estimated cost was Rs. 4,09,185 and 24 months were allowed as the time for execution of the work. The tender of Messers. S.N. Chawhan, a partnership firm of 560/69, South Sadar Bazar, Sholapur, was accepted. It was an item rate contract and rates for separate items such as excavation for foundation, diversion of water course and providing coffer dam, providing fabricating and setting out steel cutting edges for reinforced cement concrete wall curbs, providing and casting in situ cement concrete, sinking of foundation walls, bottom plug for walls, etc. were agreed upon. The work order was placed on 10-1-1967 and though the period of completion was 2 years the work was completed in December, 1970. As there was delay in executing the work, the Executive Engineer imposed a penalty of Rs. 13,080/- in the final bill. The contractor filed Special Civil Suit No. 76 of 1972 against State of Maharashtra for refund of the penalty with interest in the Court of the Civil Judge (Senior Division), Sholapur, who partly decreed the same to the extent of Rs. 13,080/-. Aggrieved, the State of Maharashtra comes up in appeal.
2. In a case like the present one, in order to pronounce upon the responsibility of delay in execution of the work, the test to be applied is contained in sections 52 to 55 of the Contract Act, relating to reciprocal promises. Section 52 provides that reciprocal promises have to be performed in that order which the nature of the transaction requires. Under section 53 if a party to the contract prevents the other from performing his promise, the contract becomes voidable entitling the aggrieved party to claim compensation. Under section 55 which deals with the contracts, where time is of the essence the promise is entitled to compensation from the promisor if the latter fails to perform certain things at or before specified times.
3. After the work order was issued on 19th January, 1967 the contractor vide Exh. 58 dated 14-4-1967 informed the Day. Engineer, Barsi, that he has made preliminary arrangements for starting the work but requested the Engineer to spare some time for personal discussion of the work programme and 'marking lining out of work'. In this letter the contractor also referred to an earlier letter dated 30th January, 1967 i.e. issued within 10 days of having received the work order on the same subject. No reply was sent to the 30th January letter nor Exh. 58, for a fairly long time in between, on 14th July, 1967 vide Exh. 59, the contractor requested for detailed measurements and drawings of R.C.C. curbs, stating dimensions of range etc. This was replied to on 4th August, 1967 Exh. 60 when the Executive Engineer expressed surprise about the complaint of non-supply of the drawings when they had been already, supplied. During the course of the trial, the plaintiff had called upon the defendant to produce the record showing as to when detailed measurements and drawings were supplied, but the defendants did not produce any record.
4. The 4th August, 1967 letter was replied to promptly on the next day by Exh. 67 wherein the contractor pointed out that the drawings which are supplied show only details of cutting edges but dimensions of bar have not been given without which R.C.C. work cannot be executed. By Exhibit 67 dated 14th September, 1967 this contention of the contractor was not entertained.
5. A contractor who is expected to construct a bridge will not be able to proceed with the work unless the line out of the bridge is given. Vide Exh. 63 dated 21-9-1967 the contractor informed the Executive Engineer that the Deputy Engineer has given the line out of the work and has promised to give dimensions of the bars for the curb works. This was done only in the second week of November. The contractor told the Department that he will start the work only after the dimensions of the bars with the curb works are given. On 30th November, 1967 vide Exh. 64 the Executive Engineer pointed out that the work is very slow because as per measurements on 19-11-1967 work of Rs. 11,255/- has been executed when work of the value of Rs. 1,25,000/- should have been done. Vide Exh. 63 dated 9-12-1967 the contractor asked for complete line out and decision from the Superintending Engineer regarding cutting edges of the curb which was not forthcoming though asked for as early as on 17-4-1967. Vide Exh. 66 dated 12-2-1968 he explained that the slow progress is due to delay on the part of the Department in giving line out and decision on steel cutting edge. Vide Exh. 67 dated 26-2-1968 the contractor claimed for the actual charges for having used plates of bigger size but the Department vide Exh. 68 dated 13-3-1968 imposed what they called fine at Rs. 10/- per day. The Department also told the contractor on 27th March, 1968 (Exh. 69) that the line out pillars have not been maintained by him properly. The contractor protested vide Exh. 70 dated 14-4-1968 that the Department has not provided diversion which hampered progress of the work and the decision regarding cutting edge was received in September 1967. The Department again maintained that line out and diversion has been provided for. The contractor approached the Superintending Engineer for waiver of the penalty which prayer was rejected by Exh. 74. The contractor again listed reasons of the delay vide Exh. 75 and Exh. 77 but no avail.
6. It may as well happen that the contract document may not contain an explicit term that the Department was to give a line out or dimensions of the bar. But such obligations are too numerous to be spelt out and to give business efficacy to the transaction will have to be implied in the contract. If the contractor were to tell the Superintending Engineer at the time of drafting the contract that a term should be incorporated therein that his Deputy Engineer should give a line out immediately after the contract is concluded, the Superintending Engineer would certainly have assured the contractor that the line out would be given and that there was no need to state the obvious. That is the way the doctrine of implied term has developed.
'Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that if, while the parties were making their bargain, an officious by stander were to suggest some express provision for it in their agreement, they would testify suppress him with a common 'Oh' of course!', Shirlaw v. Southern Foundries (1926) Ltd. (1939)2, K.B. 206, per Naokinnon, L.J.at p. 227.
7. The above discussion shows that the contractor complained about the delay in giving the line out and decision on the cutting edge at the earliest possible opportunity but the defendant State tarried for a long time and then maintained that all that was needed for the execution of the work has been supplied. The supply of drawings etc. to the contractor could have been easily proved by producing day-books and the role of the Deputy Engineer in giving the line out would be reflected either in his inspection notes or the entries in site order book. None of these records have been produced by the State inspite of a demand made by the contractor. A minute of notices and letters between the parties only indicates that the Department failed to perform their part of the contract which, in the nature of things, consisted of reciprocal promises. The result was that the performance of a promise by the contractor which was dependent upon the performance of another by the another contracting party viz., the Department was delayed. On account of this failure, that another party which was prevented from performing its part of the contract would be exonerated from the allegation of a breach of the contract. In view thereof there was no cause for the Superintending Engineer to invoke the penalty clause of the conditions of contract relating to delay in execution of the work.
8. The learned trial Judge was clearly right in decreeing the claim of the plaintiffs as respects the deductions made by the Department.
9. In the result, the appeal fails and is dismissed. The appellant to bear its own costs and to pay these of the respondents.