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The State of Rajasthan Vs. Motiram - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal Nos. 5 and 22 of 1970
Judge
Reported inAIR1973Raj223; 1973()WLN132
ActsEvidence Act - Sections 115; Contract Act - Sections 56 and 73; Code of Civil Procedure (CPC) - Sections 151
AppellantThe State of Rajasthan
RespondentMotiram
Appellant Advocate A.K. Mathur, Dy. Govt. Adv.
Respondent Advocate H.C. Jain, Adv.
DispositionAppeals partly allowed
Cases ReferredState of Madras v. Gannon Dunkerley
Excerpt:
contract act - estoppel--contract entered into by an officer without authority--held, government not bound by it and rule of estoppel does not operate.;an officer of the government does not represent government unless he is authorised to do so. in the present case, there is nothing to suggest that the assistant engineer had the requisite authority on behalf of the government. unless the authority, actual or ostensible, to enter into a contract binding on behalf of the government is established, an act or omission on the part of the public officer cannot form the basis of the plea of estoppel against the government.;both these officers were the agents of the government and they were deputed to look after the contract works. they had no authority to give assurance for payment at enhanced.....sohan nath modi, j. 1. these two appeals are directed against the two separate judgments and decrees of the district judge. kotah, dated 31-5-69. as common questions of law and facts are involved in these appeals, they are being disposed of together.2. the plaintiff-respondent instituted two suits in the court of the district judge. kotah. suit no. 22 of 1963on 16-11-63 and suit no. 3 of 1964 on 31-1-64.3. the facts relating to suit no. 22 of 1963 are as follows:4. the executive engineer, right main canal, division i. chambal project, kotah invited tenders for constructing a drainage syphon at rd 87000 on right main canal. the plaintiff submitted his tender at 9.5 per cent above the estimated amount mentioned in g schedule attached to the tender form. the chief engineer, irrigation,.....
Judgment:

Sohan Nath Modi, J.

1. These two appeals are directed against the two separate judgments and decrees of the District Judge. Kotah, dated 31-5-69. As common questions of law and facts are involved in these appeals, they are being disposed of together.

2. The plaintiff-respondent instituted two suits in the Court of the District Judge. Kotah. Suit No. 22 of 1963on 16-11-63 and suit No. 3 of 1964 on 31-1-64.

3. The facts relating to suit No. 22 of 1963 are as follows:

4. The Executive Engineer, Right Main Canal, Division I. Chambal Project, Kotah invited tenders for constructing a drainage syphon at RD 87000 on Right Main Canal. The plaintiff submitted his tender at 9.5 per cent above the estimated amount mentioned in G Schedule attached to the tender form. The Chief Engineer, Irrigation, Rajasthan, accepted the plaintiff's tender on 18-5-56 and an agreement was executed between the parties which was signed by the plaintiff on the one hand and the Chief Engineer, Irrigation, on the other. Before the tender was formally accepted by the Chief Engineer, the plaintiff was asked to commence work and he actually commenced it on 20-4-56, The work was completed on 15-7-58, The plaintiff was paid for the work done by him as per rates mentioned in the tender and accepted by the Chief Engineer. He however claimed that as during the course of the progress of the work the quantities of various items of work were increased and certain additional new items of work were added, he was entitled to 40 per cent above the schedule of rates of the Chambal Project. This claim of the plaintiff was rejected by the Chief Engineer vide his letter dated 30-11-61. The plaintiff therefore filed the present suit for the recovery of Rs. 7804/- being the difference between the tender-rates and the rates 40 per cent above the tender or schedule of rates on the following increased and additional quantities of items of work carried out by him :

1. Earth work including lifts of the value ofRs. 3228/-2. Concrete work of the value ofRs. 2481/-3. Masonry work of the value ofRs. 11779/-4. Pointing work of the value ofRs. 633/-5. Plaster work of the value ofRs. 62/-6. Kharanja work of the value ofRs. 1326/-

TotalRs.19509/-

He claimed this amount of Rs. 7804/- on various grounds. These grounds are mentioned in paras Nos. 3, 4 and 5 of the plaint which run as under:

'3. During the course of the progress of the work the scope of work was altered so as to make major changes in the work. The number of syphon pipes was increased, their thickness was in-creased, steel content of pipes and RCC was increased and all round quantities of different items of work were also increased. Certain altogether new items of work like kharanja, curtain wall, wing wall, etc. were added for which tenders had not been invited. As a consequence of these changes, the cost of the work increased from the tender amount of Rs. 1,10,882/- to Rs. 1,47,796/-.

4. When the plaintiff was informed about the increased quantities and later on about new items of work to be done and was asked by the Assistant Engineer vide his letter dated 21-11-1956 to quote his rates, the plaintiff replied on 22-11-1956 that he would execute the increased quantities at 40% above the schedule of rates. The rates so quoted by the plaintiff were neither objected nor rejected forthright. The plaintiff was rather asked to proceed with the work. The defendant in this way tacitly accepted the rate quoted by the plaintiff. The Engineers gave verbal assurances to the plaintiff that he will be paid according to the rate quoted by him.

5. That the rate quoted by him was even otherwise fair and reasonable in the changed circumstances. Due to increased quantities and new items of work, the completion date was extended and the work was prolonged over a much longer period. The cost of labour and material in the meantime rose considerably higher and the Chambal Proiect authorities too revised the old schedule of rates during this interval. The new schedule of rates also provided rates which were 40 per cent more than the old schedule of rates in respect of items on which the plaintiff claimed 40 per cent excess over the old schedule of rates. The increased quantities of new items of work were executed during the currency of the new schedule of rates.'

Besides the above amount of Rs. 7804/-. the plaintiff further claimed a sum of Rs. 5020/- which according to him was wrongly deducted at the time of the preparation of the final bill on 16-11-1960. The details of deductions given by the plaintiff are as follow:--

1. Rs.941/-in respect of earth work2. Rs.3385/-in respect of iron and RCC work3. Rs.694/-in respect of sales-tax on steel

Rs.5020/-Total

The plaintiff alleged that the above deductions were irregular, unwarranted and illegal and therefore he claimed refund of the sum of Rs. 020/-.

5. The plaintiff gave notice to the defendant under Section 80 C. P. C. for the recovery of Rs. 7804/- and Rs. 5020/-total Rs. 12,824/- with interest at the rate of 12 per cent per annum. After expirv of two months from the date of the notice, the plaintiff filed the suit for the recovery of Rs. 12,824/- as principal and Rs. 1850/- by wav of interest at the rate of six percent per annum -- total Rs. 14,674/-.

6. Suit No- 3 of 1964 related to the construction a drainage svohon at RD 54733 on Right Main Canal. The plaintiff's tender relating to the above work was accepted on the samp date that is, 18-5-1956. The plaintiff commenced this work on 10-10-1956. The plaintiff completed it on 9-7-1959. The plaintiff was paid for all the items of work carried out by him in accordance with the tender rates. But he claimed 40% above the schedule of rates in respect of the following increased and new items of work carried out by him :--

Rs.1.(a) Earth work of the value of7016/- (b) Extra lifts for the above work of the value of1193/-2.Concrete work of the value of 5578/-3.Coarse stone masonry work of the value of13140/-4.Pointing work of the value of421.445.Plaster work of the value of53.766.Khararda work of the value of1026.26Total

Rs. 29.428.47 D.

Out of the total amount of Rs. 29,428.47 P., the plaintiff deducted Rs. 2218-27 P. as excess payment made to him and claimed Rs. 10,844.08 P. at 40% above the tender-rates on Rs. 27,210,20p. The grounds on which he claimed the above amount are similar to those which he put forward in suit No. 22 of 1963. The plaintiff further claimed a sum of Rs. 5925,58 P. which, according to him. were wrongly deducted at the time of the preparation of the final bill. The details of deductions are as follows :--

1. Rs. 2850.50Deducted on account of reducing the rate of RCC work from Rs. 4/- per cft. to Rs. 3.75 P. per cft.2.Rs. 1560.00Deducted on account of reduction of rate in RCC from Rs. 5.50 P. per cft. to Rs. 5.27 P. per cft.3.Rs. 600.00Deducted on account of sales-tax on steel4.Rs. 915.08Deducted from security deposit

Rs. 5,925.58

Total

The plaintiff gave a notice to the defendant on 30-7-1962 for the recovery of Rs. 10,844-08 P. plus Rs. 5925.28 P. total Rs. 16,769.68 P. and claimed interest at the rate of 12% per annum. After the expirv of two months from the date of the notice the plaintiff filed the suit for the recovery of Rs. 16,899.66 P. as principal (the correct figure is Rs. 16,769.68 P.) and Rs. 1400.34 P. as interest at the rate of six per cent per annum -- total Rs. 18,300/-.

7. The defendant in both the suite admitted having accepted the tenders of the plaintiff for the construction of drainage syphons at RD 87000 and RD 54733. It further admitted that due to alterations in the design, the plaintiff had to carry out increased quantities of work with the result that the cost of the work as estimated in G Schedule in respect of both the works was considerably increased. The defendant however pleaded that the plaintiff was bound to carry out additional items of work at the rates mentioned in the tender under Clause 13 at the agreement entered into between the parties. Thp defendant denied that its engineers accepted the rate quoted by the plaintiff or that they gave assurance to the plaintiff that he would be Paid for the increased items of work at the rates 40% above the schedule of rates. It was also pleaded in the alternative that the defendant was not bound by any verbal assurances given by its engineers. The defendant further pleaded that the plaintiff's claim at the rate of 40% above the schedule of rates was reiected by the Chief Engineer and that his decision was final. The defendant in both the suite denied that the plaintiff was entitled to claim 40% above the schedule of rates for the increased or additional items of work carried out by him.. As regards deductions, the defendant admitted having deducted from the final bill various amounts mentioned by the plantiff in both the suits, but pleaded that all those deductions were correctly made and were wholly iustified. The defendant also denied its liability to pay interest. In the end, the defendant raised the Plea of limitation and pleaded that the suite were barred by limitation.

8. On the pleadings of the par-ties, the trial court framed issues in both the suits. Later on. an application was made by the plaintiff that the suit No. 22 of 1963 be consolidated with suit No.3 of 1964. The District Judge allowed the application and ordered on 30-11-1965 that both the suits be consolidated. In pursuance of this order, evidence in both the suits was recorded in suit No. 22 of 1963. At the time of the final decision, the learned District Judge thought it more convenient to dispose of both the suits by separate judgments as the items in dispute in both the suits were different. He held in both the suits that the plaintiff was entitled to claim rates 40 % above the schedule of rates in respect of increased and additional items of work carried out by him. hP further held that the various deductions made from the final bill were unjustified and that the plaintiff was entitled to claim interest at the rate of six percent per annum. hP accordingly decreed both the suits in toto. In suit No. 22 of 1963 he passed a decree for the entire amount claimed by the plaintiff. In suit No, 3 of 1964 he passed a decree for Rs. 17,384.92 P. only because a decree in favour of the plaintiff for Rs. 915.08 P.had been passed on 22-4-1965 during the pendency of the suit.

9. The defendant State of Raias-than has filed these appeals from the decrees passed against it in both the suits.

10. I have heard learned counsel for the parties and eone through the record very carefully. The first question that arises for consideration is whether the plaintiff is entitled to claim 40% above the contract rates in respect of additional items of work carried out by him. It is not in dispute that on account of change in the design of the contract works, the Plaintiff had to carry out certain items of work much more in quantity than set out in the contracts. He was also required to carry out one such item of work in each contract which was not included in the two contracts. The items which fall within the first category, namely, where the plaintiff had to carry out increased Quantities of work are these: Suit No. 22/1963 relating to Drainage Syphon at RD 87000:

Items of workQuantity men-tioned in the contractQuantity of work actually executedAdditional quantityValue of addi-tional quantity as per contrac-tual rate as shown in para No. 7 of the plaint

1 2345

Rs.1.Earth work including lifts192000 cft.283383 cft.71383 cft. 3223.002.Concrete work39300 cft.41814 cft.5514 cft.2481.003.Mansonry work8500 cft.25045 cft.18545 cft.11779.004.Pointing work1150 sft.8197 sft.7047 sft.633.005.Plaster work250 sft.547 sft.297 sft.63.00

Suit No. 3 of 1984 relating to Drainage Syphon at RD 54733 :1.(a) Earth work145000 cft.300331 cft.155331 cft.7711.00(b) Extra lifts2000 cft.300331 cft.298331 cft.1193.002.Concrete work29550 cft.40706 cft.11156 cft.5578.003.Masonry work12300 cft.43800 cft.31500 cft.13140.004Pointing work600 sft.6868 sft.6288 sft.421.445.Plaster work250 sft.506 sft.256 sft.53.78

In the second category, namely, where the Plaintiff had to carry out altogether new items of additional work, the only item is Kharania in both the contracts. The kharania work as per schedule of rates (old) in suit No. 22 of 1963 has been valued at Rs. 1326/- and in suit No. 3 of 1964, at Rs. 1326.27 P. Again, it is not in dispute that the plaintiff has received payment for all the items of work mentioned above; for the items of work falling into first category at the rates stipulated in the contract and the items of work falling in the second category atthe rates provided in the schedule of rates of the Chambal Proiect prevailing on the date of the contract. The plaintiff has claimed in both the suits enhanced rates at 40% over and above the rates paid to him on the following grounds:--

1. That the defendant tacitly accepted the enhanced rates of 40% over the basic rates stipulated in the contract:

2. That the engineers gave verbal assurances to him that he would be Paid at the enhanced rates;

3. That there were major changes in the work on account of change in designwith the result that the cost of work increased to a considerable extent; and

4. That due to increased quantities and new items of work. the work prolonged over a longer time and in the meantime the cost of labour and material rose considerably high and the Chambal authorities too revised their schedule of rates during this interval.

11. I would like to deal with each' ground separately to find out how far the grounds urged by the plaintiff are Droved and whether on the aforesaid grounds the plaintiff can claim 40% above the rates paid to him,

12. The first ground relates to implied acceptance of the defendant to pay enhanced rates at 40% abovp the contractual rates. In this connection, reliance was placed in each suit on the letter by the Assistant Engineer and its reply by the plaintiff. The Assistant Engineer wrote to the plaintiff that it was proposed to increase the number of RCC pipes and the steel content therein and also to increase steel content in the RCC work in the bank portion of the canal. He therefore asked the plaintiff to let him know whether he would like to take up 'the additional work at the same rates and the applicable rates of the schedule' as provided in the agreement. The plaintiff wrote back to the Assistant Engineer that extra work other than that agreed uPon in the agreement would be executed by him at 40% above the Chambal Schedule of Rates. No replv was sent by the Assistant Engineer to this letter of the plaintiff asking for the increased rates. It is argued that the silence on the part of the Assistant Engineer amounted to implied acceptance of the rate quoted by the plaintiff. I do not think there is any warrant for the above contention. There is a clear distinction between an act done or omitted to be donp by an officer of the government and by the government. An officer of the government does not represent government unless he is authorised to do so. In the present case, there is nothing to suggest that the Assistant Engineer had the requisite authority on behalf of the government. Unless the authority, actual or ostensible, to enter into a contract binding on behalf of the government is established, an act or omission on the part of the public officer cannot form the basis of the plea of estoppel against the government. That apart, I fail to understand how omission to repudiate the proposal put forward by the plaintiff for charging enhanced rates would amount to an implied agreement to paV at the enhanced rates. In Union of India v. Watkins Mayor and Co. AIR 1966 SC 275 it was argued that the plaintiffhad given notice to the defendant claiming rent at the rate of Rs. 4 per ton per month and there was no protest on behalf of the defendant and therefore it must be taken that there was an implied agreement between the parties that rent will be paid at that rate. Their Lordships of the Supreme Court rejected the argument and observed:

'Merely because the plaintiff had claimed storage charges at the rate of Rs. 4 per ton per month and there was silence on the part of the defendant it cannot be deemed that there was acquiescence on the Part of the defendant and that there was an implied undertaking on its part to pay godown rent at that rate.' (Para 7 P. 278).

I therefore find no substance in the first ground.

13. The second ground relates to verbal assurances given by the engineers that the plaintiff will be paid at the enhanced rates. The plaintiff in his statement has deposed that verbal assurances were given to him by the Assistant Engineer and Executive Engineer. Both these officers appeared in the witness-box as DW 1 and DW 2. No question was put to DW 1 about the alleged assurance. DW 1 emphatically denied having given such an assurancp to the plaintiff. The plaintiff in his cross examination pointed out the name of Mr. Notra as the person who assured him about the payment at enhanced rates, but Mr. Notra was not examined by the plaintiff. The statement of the plaintiff is not at all convincing and I am not inclined to put implicit faith on his lone statement. I therefore hold that no verbal assurances as alleged by the plaintiff were given by the engineers. Assuming for a moment that the assurances as alleged by the plaintiff were in fact given by the Assistant Engineer and Executive Engineer, even then they are of no consequence. Both these officers were the agents of the government and they were deputed to look after the contract works. They had no authority to give assurance for payment at enhanced rates and this fact was within the knowledge of the plaintiff. No estoppel can arise from the representation of the agent unless it is within his actual or ostensible authority to make it. The second ground also fails.

14. I now take up the last two grounds. It is not in dispute that due to alterations in the design, the cost of work in both the contracts was considerably increased. The tender cost of work for constructing drainage svPhon at RD 54733 was Rs. 97,839/- but it actually cost Rupees 1,43,371/-. Similarly, the tender cost of work in respect of drainagesyphon at RD 87000 was Rs. 1,10,882/-, but it actually cost Rs. 1,47 796/-. It is again an admitted fact that under the agreement the works at RD 87000 and RD 54733 were to be completed on 19-7-57 and 9-10-57 but they were actually completed on 15-7-58 and 9-7-59 respectively, The main reason behind prolongation of works was increase in the quantities of various items of work. The plaintiff has deposed that during the intervening period the cost of labour and material rose considerable high. The plaintiff has not given any particulars in this connection. His statement is vague and not of much value. DW 2 Devendra-sinsh has deposed that the old schedule of rates was revised on account of rise in the cost of labour and material but he was not able to say when it was revised. DW 3 D. M. Sanehvi has deposed that the new schedule of rates came into force in the year 1958. Besides the oral evidence, the learned counsel for the plaintiff also invited my attention to letters Ex. 4 and Ex. 5 written by the Executive Engineer and Superintending Engineer respectively. By his letter Ex. 4, the Executive Engineer recommended that the contractor be paid at the schedule of rates for the excess quantities carried out by him. He based his recommendation mainly on two circumstances. Firstlv. the design was changed on account of which the work prolonged over a long period and secondly, the price index during this period rose very high. The superintending Engineer in his letter Ex. 5 agreed with the comments given by the Executive Engineer in his letter Ex. 4 and affirmed that during the period the rates of material and labour had increased and on that account the schedule had to be revised. From the evidence on the record it does appear that during the relevant period the cost of material and labour did rise but to what extent is not borne out by the evidence. The revised schedule of rates was brought into force in the year 1958 but it is again not clear to what extent and in what items of work the old rates were revised. The parties neither produced the old schedule of rates nor the new schedule of rates. It therefore cannot be said with certainty that during the relevant period the cost of labour and material increased by 40%.

15. Even assuming that there was an increase to the tune of 40% in the price index, the question still remainswhether the plaintiff is entitled to increased rates on the additional items of work carried out by him. This questiondeserves to be iudeed from three different angles. Firstly, whether the terms of the agreement entitle the plaintiff to claim increased rates on additional itemsof work. Secondly, whether on account of change in the design, prolongation of the period, increased quantities of work and shootins up of the prices, the agreement entered into between the Parties was frustrated and the plaintiff was entitled to increased rates on the basis of quantum meruit and thirdly even if the agreement was not frustrated, still the plantiff is entitled to increased rates on the basis of quantum meruit. The relevant clauses of the agreement are Clause 13 of the 'General Rules and Directions for the Guidance of Contractors' and Clause 16 of the 'Particular specifications for the construction of R. C. C. Pipe syphon at RD 87000 and RD 54733 of Right Main Canal'. Clause 13 runs as under;

'Clause 13. -- The Engineer-in-charge shall have power to make any alteration in, or additions to, the original specifications, drawings designs and instructions, that may appear to him to be necessary or advisable during the progress of the work and the contractor shall be bound to carry out the work in accord-dance with any instructions which may be given to him in writing signed by the Engineer-in-charge. and such alteration shall not invalidate the contract; and any additional work which the contractor may be directed to do in the manner above specified as part of the work shall be carried out by the contractor on the same conditions in all respects on which he agreed to do the main work, and at the same rates as are specified in the tender for the main work. The time for the completion of the work shall be extended in the proportion that the decision of Engineer-in-charge shall be conclusive as to such proportion and if the additional work includes any class of work, for which no rate is provided in this contract then such class of work shall be carried out at the rates entered in the schedule of rates of the government and if such last mentioned class of work is not entered in the schedule of rates of the government then the contractor shall within seven days of the date of this receipt of the order to carrv out the work, inform the Engineer-in-charge of the rate which it is his intention to charge for such class of work, and if the Engineer-in-charge does not agree to this rate, he shall, by notice in writing be at liberty to cancel his order to carrv out such class of work, and arrange to carry it out in such, manner as he may consider advisable provided always that if the contractor shall commence work or incur any expenditure in regard thereto before the rates shall have been determined as lastly hereinbefore mentioned then insuch case hp shall be entitled to be Paid in respect of the work carried out or expenditure incurred by him prior to the date of the determination of the rate as aforesaid according to such rate or rates as shall be fixed by the Engineer~in-charge. In the event of a dispute, the decision of the Chief Engineer will be final.'

Now, Clause 13 provides in the first place that the Engineer-in-charge shall have power to make any alterations in. or additions to, the original specifications, drawings, desisns and instructions during the progress of the work and the contractor shall be bound to carry out the work in accordance with such instructions of the Engineer-in-charge. Secondly, it provides that such alterations shall not invalidate the contract. It then provides the manner of ascertaining rates at which the contractor shall be paid for the additional items of work. It lavs down that the additional work shall be carried out by the contractor on the same conditions in all respects in which he agreed to do the main work and at the same rates as are specified in the tender for the main work. If the additional work includes any class of work for which no rate is provided in the contract, then such class of work shall be carried out at the rates entered in the schedule of rates of the government. If the additional work is of such class of work for which no rate is mentioned in the schedule of rates of the government, then the contractor shall emote the rate at which it is his intention to charge for such class of work.

16. Clause 16 runs as under:--'Clausp 16. -- For any extra work or item the rate of Chambal Schedule corrected upto date will be binding on the contractor.'

This clause enables the contractor to charge for extra work or item at the rate of Chambal Schedule corrected upto date. As noticed above. Clause 13 appears in 'General Rules and Directions for the Guidance of Contractors', whereas Clause 16 appears in 'Particular Specifications for the Construction of R. C. C. Pipe SvPhon at RD 87000 and RD 54733 on the Right Main Canal'. Both these clauses form the part of the agreement. It is argued on behalf of tbe State that Clause 16 relates to such class of additional or extra items of work for which no rate is specified in the tender but it is so provided in the Chambal Schedule corrected upto date. On the other hand, it is argued on behalf of the plaintiff that because Clause 16 is incorporated in 'Particular Specifications' for the disputed contracts and Clause 13 is incorporated in 'General Conditions'.the former abrogates the latter so far as it relates to extra or additional items of work. According to the learned counsel for all additional items whether thev are covered by the rates provided in the contract or not. Clause 16 applies and the contractor is entitled to charge for such additional work at the rates specified in the Chambal Schedule of rates corrected upto date. I have given mv anxious thought to the rival contentions put forward before me. It is an elementary rule of construction that when a single transaction is carried into effect by several instruments, the whole are treated as one instrument. Another rule of construction applicable to all written instruments is that the instrument must be construed as a whole in order to ascertain the true meaning of its several clauses and the words of each clause must be so interpreted as to bring them into harmony with the other clauses of the instrument if that interpretation does no violence to the meaning of which thev are naturally susceptible. The best construction of the deeds is to make one part of the deed expound the other and so to make all the parts agree. In view of the above principles, it is manifest that Clause 16 cannot be divorced from Clause 13 and one cannot be read and construed independently of the other. They must be so interpreted as to bring harmony with the other. If so interpreted, I am of the opinion that Clause 16 does not relate to all additional items of work but only to that class of additional or extra items for which no rate is specified in the contract. Now, to this class of additional work. Clause 13 provides the rate specified in the schedule of rates of the Government whereas Clause 16 provides the rate specified in the Chambal Schedule of rates. It is here that inconsistency arises between the two clauses. The rule of interpretation is that if there are two clauses or parts of a deed repugnant to each other, the first will be received and the latter rejected unless there is some special reason to the contrary. Refer to Midnapur Zemindari Co. Ltd. v. Jogen-dra Kumar Bhaumik. AIR 1921 Cal 750. In the present case, it is not possible to find out which of the two inconsistent clauses is earlier as both the clauses are incorporated in separate instruments which were executed at the same time. But one fact is clear that Clause 13 appears in 'General Directions' whereas Clause 16 appears in 'Special Directions' for the disputed Works. The clause in General Directions must therefore yield to the clausp in Special Directions. I am therefore of the opinion that according to the terms of the agreement, the Plaintiff was bound to carry out the additionalitems of work at the contractual rates if the rates for such work were specified in the tender. In case the additional items of work relate to such class of work the rates of which were not included in the tender, the plaintiff was entitled to charge for such items of additional work at the rates provided in the Chambal Schedule of rates corrected upto date- It is thus clear that under the terms of the agreement the plaintiff is not entitled to enhanced rates.

16A. The next question that arises Is whether the contract was frustrated on account of subsequent change in the circumstances and uncontemplated turn of events. Clause 13 in clear terms lavs down that alterations in specifications and designs during the progress of the work shall not invalidate the contracts. Even otherwise, as laid down by their Lordships of the Supreme Court in Alopi Farshad and Sons Ltd. v. Union of India, AIR 1960 SC 588 'a contract is not frustrated merely because the circumstances in which the contract was made are altered.' Section 56 of the Contract Act provides that :--

'A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.'

The plaintiff in the present case carried out the additional work and thus performed the contract. He also received payment for additional work at the rates stipulated in the contract. There is therefore no warrant for the conclusion that the performance of the contract had become impossible or unlawful and there- by the contract was frustrated.

17. I now turn to the question whether on account of changed circumstances the plaintiff was entitled to increased rates on the basis of quantum meruit even though the contract was not frustrated and it continued to be binding on the parties. In this connection, the learned counsel for the plaintiff strongly placed reliance on Sir Lindsay Parkinson & Co, Ltd. v. Commrs. of Works and Public Buildings, (1950) 1 All ER 208. In that case on 6-1-37 the plaintiff who were building contractors contracted with the Commissioners of Works to erect an ordinance factory. Under the original contract they were to be paid for the value of variations and additions to the works ascertained in accordance with prescribed rules, but a deed of variation subseaquently entered into by the parties owing to delay in the works providpd for completion within the time originally specified by using exceptional and un-economical methods and fixed the minimum and maximum net profits to be paid to the plaintiffs on the work done at 150,000 and 300.000 respectively. Owing to the fact that large additions to the work were required by the Commis-sioners under the terms of the contract, the work could not be completed within the time prescribed, and the payment based on cost plus profit under the deed of variation was much less than would have been due under a valuation of the additions in accordance with the terms of the original contract. The plaintiffs contended that the upper and lower limits of profit were based on an estimated cost of the works made at the time of the execution of the deed, and that, since that estimate had been greatly exceeded, he was entitled to be paid a reasonable remuneration in respect of the excess work, or, alternativelv, a quantum meruit for that work as not coming within the scope of the contract. The court upheld the contention of the plaintiff holding that a term must be implied in the contract that the commissioners should not be entitled to require work materially in excess of the specified sum. On the basis of the above authority, the learned counsel for the plaintiff argued that if on account of changed circumstances the work was materially chaneed outside contemplation of the parties, the terms of the contract should not apply to the new situation and in such a case the court should read the terms of the contract in a qualified sense so as to restrict them to the circumstances contemplated by the parties at the time of making the contract. He further argued that the contract in changed circumstances should not be applied and the contractor should be Paid on the principle of quantum meruit. that is, what is lust and reasonable. I do not feel inclined to agree with the above contention. In Alopi Parshad's case AIR 1960 SC 588 (Supra), their Lordships of the Supreme Court noticed the Parkinson's case (1950) 1 All ER 208 (Supra) in the context of the following observations made by Denning L. J., in British Movietonews Ltd. v. London and District Cinemas Ltd., (1951) 1 KB 190 :--

'.....no matter that a contractis framed in words which taken literally or absolutely, cover what has happened, nevertheless, if the ensuing turn of events was So completely outside the contemplation of the parties that the court is satisfied that the parties, as reasonable people, cannot have intended that the contract should apply to the new situation then the court will read the words of the contract in a qualified sense: it will restrict them to the circumstances contemplated by the parties: it will not applythem to the uncontemplated turn of events, but will do therein what is iust and reasonable.'

and held that the court in Parkinson's case (supra) did not proceed upon any such general principles as were assumed by Denning, L. J., in 1951-1 KB 190 (supra). In Alopi Parshad's case, it was laid down that 'The Indian Contract Act does not enable a party to a contract to ignore the express covenants thereof and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague Plea of equity.' Their Lordships placed reliance on the following speech of Lord Simon in British Movietonews Ltd. v. London and District Cinemas Ltd., 1952 AC 166 at pp. 185 and 186 :--

'The parties to an executory contract are often faced, in the course of carrying it out with a turn of events which they did not at all anticipate -- a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. Yet this does not in itself affect the bargain they have made. If. on the other hand. a consideration of the terms of the contract, in the light of the circumstances existing when it was made, shows that thev never aereed to be bound in a fundamentally different situation which has now unexepectedly emerged, the contract ceases to bind at that point -- not because the court in its discretion thinks it just and reasonable to qualify the terms of the contract, but because on its true construction it does not apply in that situation. - When it is said that in such circumstances, the court reaches a conclusion which is 'just and reasonable' (Lord Wright in Constantine Steamship Line Ltd. v. Imperial Smelting Corpn. Ltd.. 1942 AC 154 at p. 186 or one 'which justice demands' (Lord Sumner in Hirji Mulii y. Cheong Yue Steamship Co- Ltd.. (1926) AC 497 at p. 510 this result is arrived at by putting a iust construction upon the contract in accordance with an 'implication .....from the presumedcommon intention of the parties.'

Their Lordships then observed-

'There is no general liberty reserved to the courts to absolve a party from liability to perform his part of the contract merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous. That is the law both in India and in England and there is in our opinion no general rule to which recourse may be had..... relying upon which a partymay ignore the express covenants on account of an uncontemplated turn of events since the date of the contract.'

I am therefore unable to agree with the contention of the learned counsel for the plaintiff that the express terms of the contract should be ignored and the court may grant relief to the plaintiff on the basis of quantum meruit. That can only be done if the contract is frustrated. Their Lordships of the Supreme Court in Alopi Parshad's case AIR 1960 SC 588 (supra) clearly laid down that express terms of the contract cannot be departed from so long as the parties are bound by the contract :

'In India, in the codified law of contracts there is nothing which justifies the view that a change of circumstances, 'completely outside the contemplation of parties' at the time when the contract was entered into, will justify a court, while holding the parties bound by the contract, in departing from the express terms thereof'.

The plaintiff in the circumstances, cannot get increased rates on the basis of quantum meruit The last two grounds thus also fail.

18. The learned counsel for the plaintiff lastly contended that for such class of additional items of work which were not covered by the rates mentioned in the tender, the plaintiff was entitled to charge as per the Chambal Schedule of rates revised in 1958, as most of the additional work was carried out by him after the commencement of the revised Chambal Schedule of rates. In this connection he laid emphasis on Clause 16, particularly the words 'corrected upto date.' According to the learned counsel, the words 'corrected upto date' mean that schedule of rates which was in force at the time of the execution of the work. I do not agree with this. In my opinion the words 'corrected upto date' would only mean the schedule of rates nreva-lent and corrected at the date of the agreement.

19. For the reasons stated above, I hold that the plaintiff is not entitled to claim 40% above the rates alreadv paid to him.

20. That brings me to the question of validity of the various deductions made in the two suits. In suit No. 22 of 1963 the total amount of deductions is Rs. 5020/- and it consists of three items, namely, Rs. 941/-, Rs. 3385/- and Rs. 694/-. All these deductions were admitted to have been made by the defendant at the time of the preparation of the final bill. The question arises whether these deductions were made lawfully and correctly.

21. The first item of deduction of Rs. 941/- relates to earth work and itsrate in the G Schedule attached to the tender is Rs. 27/- per thousand cubic feet. It appears that at the time of the Preparation of the final bill the total quantity of earth work amounting to 3,10,646 cft. which was paid at the rate of Rs. 27/ per thousand cubic feet was divided into three parts -- (1) earth work in heavy soil -- 91265 cft. @ Rs. 27/- per thousand cft.. (2) Phawara work 46863 cft. @ Rs. 20/- per thousand cft. and (3) excavation in daldal 1,72,118 cft. @ Rs. 25/- per thousand eft., with the result that the total value of earth work was reduced by RS. 941/- and the same was deducted at the time of the preparation of the final bill. I find no justification for the said deduction. Only one rate of Rs. 27/- per thousand cft. for earth work was specified in the G Schedule and no separate rates were specified in it for phawara work and excavation in daldal. There is also no proof that in the schedule of rates of the government or of the Chambal there existed separate rates for different types of earth work. In the absence of such proof the deduction cannot be held to be proper.

22. The next item of deduction is Rs. 3385/-. It relates to R. a C. work. It appears that steel content in R C. C. work was increased during the progress of the work. In the running bills the plaintiff was paid for R. C. C. work at a particular rate but that rate was reduced at the time of the Preparation of the final bill, with the result that the total value of R. C. C. work was reduced by Rs. 3385/- and the same was deducted from the final bill. The learned Deputy Government Advocate was not able to satisfy me how the reduction in rate was justified. Thp learned trial Judge has found in favour of the plaintiff and I entirely agree with his finding.

23. The last item of deduction is Rs. 694/-. It relates to sales-tax on the price of the steel supplied to the plaintiff for use in the contract work. The learned District Judge has placed reliance on the decision of their Lordships of the Supreme Court in the State of Madras v. Gannon Dunkerley & Co.. AIR 1958 SC 560 and Clause 11 of the agreement. He held that the supplv of the steel to the plaintiff by the Government for use in the contract works did not amount to sale as proprietary rights in the steel never passed on to the plaintiff. The learnedDeputy Government Advocate was not able to show how the view taken by the learned District Judge is erroneous. Thereis also nothing to suggest that the sales-tax was paid by the government and that It was not included in the price of the steel charged in the final bill. I find noiustification for charging sales-tax from the plaintiff. I therefore hold that the deductions made by the defendant at the time of the preparation of the final bill in suit No. 22/63 were not iustified.

24. I now take up the deductions relating to suit No. 3 of 1964. The total amount of deductions in this suit is Rs. 5010.50 P. which consists of Rupees 2850-50, 1560/- and 600/-. The first two items relate to R. C. C. work The deductions were made in the final bill on the ground that the plaintiff was paid at higher rates in the running bills. The learned Deputy Government Advocate was not able to satisfy me how the reduction in rates at the time of the preparation of the final bill was iustified. I therefore see no iustification for these two items of deductions.

25. The third item of Rs. 600/-relates to sales-tax on the price of the steel supplied by the defendant to the plaintiff for use in the contract work. I have already held while deciding the similar claim in suit No. 22 of 1963 that the defendant was not entitled to charge sales tax from the plaintiff. This deduction was thus unjustified.

26. The learned Deputy Government Advocate argued that the plaintiff's suit in respect of these deductions is barred by time. According to him, Article 56 of the old Limitation Act applied to the claim for deductions. I find no substance in the above contention. The plaintiff had been fully paid for the items relating to the deductions. The plaintiff therefore could not have brought the suit till the deductions were actually made. The deductions were made at the time of preparation of the final bills in the month of April or May 1961. Both the suits were filed within three vears from the dates of preparation of the final bills. They were therefore filed within time.

27. The learned counsel for the plaintiff respondent also contended that since the two suits were consolidated during the course of the trial, the rial court should have passed one iudgment and decree and the Statp should have filed one appeal instead of two appeals. The learned counsel was however not able to point out how the two separate judgments and decrees and the two appeals therefrom prejudiced the plaintiff and resulted in failure of justice. He was also not able to show how separate judgments and decrees could be deemed to be void or ineffective. It may be mentioned here that the Code of Civil Procedure provides no specific Provision for consolidation of suits. It is under the inherent powers of the Court underSection 151 C. P. C. that the suits are consolidated. The whole obiect behind consolidation of suits is to avoid multiplicity of proceedings and to Prevent delav and avoid unnecessarv costs and expenses. Bv consolidation, it cannot be inferred that the court after consolidation ceased to have jurisdiction to dispose of consolidated suits separately. It is difficult to understand that when the court before consolidation could have dealt with them separately without any obiection, then. after consolidation, the court would be debarred from doing so even if separate decisions are desirable for the sake of convenience to the parties as well as to the court. It is true that ordinarily the court after consolidation should dispose of consolidated suits by one judgment and decree, but that does not mean that if separate judhments and decrees are passed, such decrees are illegal or void or ineffective. The fact that separate iudff-ments and decrees are passed in the consolidated suits, at best shows an irregularity in following a correct and ideal procedure and not lack of jurisdiction. This contention of the learned counsel for the plaintiff has therefore no force.

28. As for the claim of interest the learned District Judge has stated that on equitable grounds as well as under the Interest Act, he was allowing the claim from the date of the notice under Section 80 C. P. C. to the date of the suit. Section 70 of the Contract Act which is aimed at preventing any uniust enrichment must be kept in mind in such cases. The defendant who had taken benefit of the plaintiff's work and who had unnecessarily deducted certain sums from the final bills can be asked to Pay interest at the rate of six per cent, per annum from the date of demand made in the notice to the date of the suit. In suit No. 22 of 1963 the amount payable to the plaintiff has been found to be Rs. 5020/-. On this amount the amount of interest from 7-7-61 to 16-11-63 at the rate of six per cent, per annum comes to Rs. 712/-. Similarly, in suit No. 3 of 1964. the amount due to the plaintiff has been found to be Rs. 5010.50 P. The amount of interest on the said amount from 30-7-62 to 30-1-64 at the rate of six per cent, per annum comes to Rs. 451/-. The plaintiff is thus entitled to recover from the defendant Rs. 5732/- in suit No. 22 of 1963 and Rs. 5461.50 P. in suit No. 3 of 1964.

29. The result is that both the appeals are allowed in part and the decrees in both the appeals are modified as under :--

30. In Civil Appeal No. 5 of 1970 (Suit No. 3 of 1964). the plaintiff's claim is decreed for Rs. 5461.50p. He shall beentitled to receive pendente lite and future interest at the rate of six per cent per annum on the principal amount of Rs. 5010.50 P. The costs of the suit as also this appeal shall be borne by the parties.

31. In Civil Appeal No. 22 of 1970 (Suit No. 22 of 1963). the plaintiff's suit is decreed for Rs. 5732/-. He shall be entitled to receive pendente lite and future interest at the rate of six per cent per annum on the principal amount of Rs. 5020/-. The costs of the suit as also of this appeal shall be borne by the parties.

32. The rest of the claim in respect of both the suits is dismissed.


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