1. This appeal arises out of a suit brought by the plaintiff against the Secretary of State on foot of a contract of the 18th of March 1904 for the construction of certain buildings at a place called Mahoba in the Banda District. The buildings were required as the residence and Office of the Survey Officer and are situate in a place somewhat out of the way. According to the terms of the contract, the works were to be completed on or before the 30th of September 1904. As a matter of fact, the contract was not fulfilled until March 1905. The contract provided also that in the event of any part of the work nor, progressing satisfactorily the Public Works Department were entitled to take away that portion of the work and give it to other contractors. There was also provision for a penalty of Rs. 5 for every day that the work remained uncommenced or unfinished after the proper date, the maximum amount of such penalty being a sum of Rs. 870.
2. It is common case that portion of the work was taken away from the plaintiff on the ground of unsatisfactory progress. It is also common case, as stated above, that the work remained uncompleted until the time we have mentioned. The plaintiff claimed the sum of Rs. 8,713-13-10. The defendant admitted the claim to the extent of Rs. 2,555-0-6 after taking credit for Rs. 870 the maximum amount of the fine for the delay.
3. The Court below gave a decree for Rs. 4,254-7-2, giving against the plaintiff for the penalty mentioned.
4. The plaintiff not being satisfied with the credit decree has appealed to this Court.
5. The first item to which our attention was invited was the sum of Rs. 870 the penalty. The learned Advocate on behalf of the appellant claims that under no circumstances should this sum be allowed having regard to the finding of the Court below. The finding he relies upon is that the defendants failed to prove actual loss. It is argued that time was not of the essence of the contract and that the learned Judge so finds. This being so, the plaintiff claims that the defendants having failed to prove loss is entitled to no damages. We do not think that this contention is well founded. The argument neglects to consider the provisions in the contract as to the fine for non-completion. It is quite true that if the contract had no provision as to the payment of a fine in the event of non-completion and if time was not of the essence of the contract and the defendant failed to prove loss he would be entitled to no damages or compensation. However, Section 74 of the Contract Act expressly provides that where the contract provides for a penalty in the event of breach, the party complainant of the breach is entitled to compensation even though he is unable to prove actual loss. The amount of compensation is to be such sum as the Court shall, under all the circumstances, think reasonable, limited, of course, to the amount specified in the contract. We think, therefore, that the defendant was entitled to claim compensation.
6. The next question is as to the amount. The learned Judge, finding that the defendant did not prove actual loss says, 'the correspondence on the record shows that the urgency of the work was throughout insisted on'. Under these circumstances, we are unable to say that the learned Judge was wrong in awarding the full amount of the penalty.
7. Before we leave the question of the penalty, we may mention one other matter. The plaintiff contended that the delay (which he has to admit took place) was due to the obstruction he suffered at the hands of the Public Works Department Officials. The learned Judge has found that, even assuming that obstruction was given to the plaintiff, he has entirely failed to show that such obstruction was the cause of the non-completion of the works. This finding has not been seriously controverted and, of course, is a complele answer to this part of the plaintiff's case.
8. It was farther contended that there had been a waiver of the penalty. The only ground for this suggestion was that after the plaintiff had furnished his claim in fall the defendants put forward their claim where the only mention of the fine is in pencil. In our opinion there is no evidence whatever of any waiver. The document relied upon by the plaintiff clearly does not in any way show that the fine was waived, in fact rather the contrary. There are two entries relating to the fine, one shows what would be due if the fine was exacted, the other shows the amount if the fine was not exacted. Such entry could not in any way be regarded as a waiver of the claim.
9. On the general merits of the case it has not been shown to us that the learned Judge has made a mistake, in fact, as to any particular item of the claim of the plaintiff which he disallowed but it was suggested that he made a mistake in law in throwing the onus probandi on the plaintiff. At one period of the argument we were inclined to think that perhaps such a mistake of law had been made. It appears that daring the course of the work memoranda were from time to time signed by one of the officials in the Public Works Department, namely a Sub-Overseer of the name of Ram Chander. These memoranda purport on the face of them to give in detail the amount of work done up to date. At the end is a certificate to the effect that the works have been satisfactorily executed and all materials delivered, that the necessary measurements have been made by the Sub-Overseer and are clearly recorded in the measurement-book. These memoranda are useful for two purposes first of all they are sought to be at least a prima facie admission by both sides as to the state of the work on a particular date, and secondly, they enable the contractor to receive payments on account of his contract. It is difficult to understand how claims in respect of contract of such a nature could be satisfactorily adjusted between the parties without such periodic settlements. It must often happen that examination of the earlier work becomes impossible later on as the work proceeds. We were inclined to think that after the production of these memoranda the plaintiff should be absolved from proving any of the items specified in the memoranda and that the onus ought to lie upon the defendants of showing that any such item was incorrectly certified. Under ordinary circumstances, we consider that memoranda of this description ought to be deemed strong prima facie evidence of the completion of the contract as stated therein and that the onus should lie strongly on whichever side disputed the correctness of the entries to prove that they were wrong. We find, however, in the present case that both sides gave the go-by to these memoranda. They were disgracefully kept. The learned Judge says that they were wholly unreliable and incorrectly prepared, that there was great laxity of procedure and that the rules of the Public Works Department were neglected. The plaintiff did not come into Court relying, as he might have done, upon these memoranda as proving prima facie the case which entitled him to succeed unless the defendant proved the contrary. He came into Court on an independent case without any documents of any kind to support it, neither books nor accounts or even slips of paper. The consequence was that the Court below had to take the evidence of both sides and to weigh and consider that evidence as best as it could. As the result the plaintiff failed as to a large part of his case. The defendants were also punished for the laxity and neglect of their official. A large amount of the items claimed by the defendants for materials which were alleged to have been supplied to the plaintiff were disallowed. The learned Judge appears to have given the case great care and consideration and no attempt has been made to show that he has made any mistake upon the evidence. For the reasons we have already stated, and having regard to the way the case was conducted by the parties both on their pleadings and in the Court below we are dearly of opinion that no mistake in law was made.
10. The result is that the appeal fails and is dismissed with costs including in this Court fees on the higher scale.