Kanta Bhatnagar, J.
1. This appeal is directed against the judgment and decree dated August 12, 1969, passed by the learned District Judge, Bhilwara.
2. Briefly stated the facts of the case giving rise to this appeal are as under : The State of Rajasthan through the Executive Engineer, PWD, at Udaipur and the Executive Engineer, PWD at Bhilwara invited tenders for the construction of several items of work for the metalled road from Mile No. 30 to 34 and 34 to 38. The plaintiff's tender being the lowest @ 11% above the 'G' Schedule was accepted at Bhilwara, with the prior sanction of the Chief Engineer, PWD on 11-2-1958. Contract agreements for the two works, Ex.A-5 and Ex.A-6 were duly executed from both the sides. On 1C-2-1958 the work order was issued with a direction that the road construction was to be completed by 14-2-1959. This is the admitted position of the parties.
3. The plaintiff has filed a suit for material supplied and work done amounting to Rs. 77,388/- on the ground that due to lack of timely cooperation on the part of the defendant and not raking the payment at proper time plaintiff could not complete the work at the stipulated time. It was also the grievance of the plaintiff that the measurements entered in the measurement books were faulty and he has not been paid even according to those measurements. That, as there was no timely alignment plaintiff could not commence the work earlier than 1-3-1958. For the aforesaid reasons plaintiff was left with no alternative but to treat the contract as repudiated by the defendant & treating himself as free from any further liability after June, 1959. Plaintiffs contention in the plaint was that he was willing and ready to complete the work even thereafter, but the Department failed to arrive at terms and conditions agreeable to the plaintiff. The incomplete work was got completed through other agencies by the Department and plaintiff was made to make good the difference for that work from the one stipulated in his contract. A penalty was also imposed on the plaintiff at the rate of 10% on the entire amount of work, the amount being Rs. 6200/- on the 1st Section and 5620/- on the IInd Section. All this caused grievance to the plaintiff. He has advanced his claim for an amount of Rs. 39146/- for the work at Miles 30 to 34 and an amount of Rs. 31242/- for the work at Miles No. 34 to 38, the total being Rs. 77388/- inclusive of Rs. 18876.50 by way of interest at the rate of 9% per annum and filed the suit in the court of District Judge, Bhilwara. The plaint contained the details of the claim on the various items of work and the supplies made for the same.
4. In the written statement, defendant denied the allegations of delayed payment, incorrect measurements and non-cooperation by the Department. It was also stated that the payment has already been made for the entire work done by the plaintiff. That, as the plaintiff could not complete the work, the remaining work was not done from other agencies for which separate tenders were invited and accepted at the rate of 26% above 'G' Schedule rate. The difference of the rate sanctioned to the plaintiff was to be realised from him as per agreement. As the plaintiff did not complete the work despite notice served upon him in that regard, the penalty at the rate of 10% had been imposed as per agreement. The claim of the plaintiff was denied and it was prayed that the suit be dismissed with costs.
5. On the basis of' the contentions raised in the pleadings, the learned District Judge framed issue Nos. 1 to 18 with regard to the claim of the 1st Section and issue Nos. 19 to 26 for the claim relating to the IInd Section. Issue Nos. 27 to 33 related to the common grounds taken regarding the work of both the Sections.
6. Plaintiff appeared in the witness box and examined seven other witnesses and placed reliance on 18 documents. From the side of the defendant, one witness was examined and 28 documents were tendered in evidence.
7. The learned District Judge decided Issue No. 29 relating to the limitation for filing the suit, in favour of the plaintiff. Issue No. 31 relating to the maintainability of the plaintiff's suit was also decided in his favour on the ground that the payment in respect of the final bill was accepted under protest and not in token of final settlement. Issue No. 1 in respect of earth work was partly decided in favour of the plaintiff. Issue No. 5 relating to the amount of binding material and Issue No. 8 relating to the claim towards cutting of decomposed rocks were decided in favour of the plaintiff. While deciding Issue No. 30, interest at the rate of 6% on the claim held to be proved instead of 9 percent as claimed by the plaintiff was allowed. All the other issues relating to the various claims for the work and compensation and penalties were held to be un-proved and decided against the plaintiff. In view of the decision of certain issues in favour of the plaintiff his suit for Rs. 2235.91 as principal and Rs. 771/- as interest total Rs. 3006.91 with costs on that amount was passed in favour of the plaintiff against the defendant. He was also allowed interest at the rate of 6% from the date of (he decree till realisation on the principal sum of Rs. 2235.9Jp. The rest of the suit was dismissed. The plaintiff was permitted to sue as pauper, the court fee realisable from him on that suit amount calculated to Rs. 4015/- was to be recovered and it was ordered that after adjusting the plaintiff's decreed claim against this court fee, if any amount towards court fee still remains, that would be paid by the plaintiff.
8. Being dis-satisfied by the dismissal of his suit for the various claim's, plaintiff had preferred this appeal in this Court.
9. We heard Mr. A.L. Mehta, learned Counsel for the appellant and Mr. M.D. Purohit, learned Additional Government Advocate and gave our anxious consideration to the material on record.
10. Issue No. 1 relates to the claim of a sum of Rs. 1502.85 more in respect of earth work. According to the averment by the plaintiff Tej singh he had dug 5,58,884 Cft. earth and the defendant also got the earth work done on behalf of the plaintiff for a measurement of 47,860 Cft. The defendant department is alleged to have recoverd from the plaintiff the amunt for the earth work got done by it. That, for the total work of 6,06,744 Cft. tte plaintiff has been paid only for 5,46,630 Cft and therefore the amount for the earth work measuring 60,114 Cft. at the rate of 25/- per 1000 Cft. plus 11% above is due from the defendant. All, this earth work finds place in the measurement book Ex.4. The learned District Judge in view of the entries in the measurement book and the report Ex.5 by the Assistant Engineer Yaqub Ali and Ex.6 by Har Narayan Overseer, held that the recommendation was made for the payment of this work. Plaintiff accepted the measurement at page 83 and 92 in the 9th running bill to be correct and his signature at page 92. The earth works mentioned therein is 51,370 Crt which was brought forward in the measurement book Ex.4. The learned District Judge referred to the various entries in the relevant measurement book and was of the opinion, that on account of rainy season the pits could be partly filled-up. Certain entries were admitted to have been cancelled and that portion bears the signatures of the Assistant Engineer Ramesh Chandra Joshi on 8-10-1959. He has not been produced from the defendant's side to clarify as to for what reasons the entries were cancelled. The re-measuring had taken place after three months of the rainy season and, therefore, certain portion of the pits could have been naturally filled with mud. In this circumstance, the learned District Judge opined that the deduction of an area 51,370 Cft in the final bill was made without jurisdiction. The payment of that area calculated to Rs. 1284/- at the rate of Rs. 25/- per 1000 Cft. was held to be due towards the defendant.
11. Issue No. 2 relates to the claim of Rs. 5073.91 in respect of supply of soling stones. The contention of the plaintiff was that from miles 32 to 24 his soling stones measuring 27,390 Cft. were lying at the site, but the Department spread it on the road and entered only 18,260 Cft. in the the measurement book Ex.7 at page No. 35. Out of the total supply amounting to 1,50,597 Cft. he had not recovered the payment of about 41,000 Cft. He had also claimed the payment for the soling stones measuring 10,000 Cft. spread by the department in rainy season in 1958-59 from miles 31 to 34. Some of these contentions find place in the report of the Assistant Engineer and the Overseer Ex. 5, Ex. 6 and Ex. 8. According to the plaintiff when he stopped work in February, 1960, 31,390 Cft soling stones were left at the site in possession of the department, out of which 5000 Cft. soling stones were stolen away by the village people. Plaintiff's contention is that he reported the matter to the Pradhan Panchayat Samiti Sajjangarh on 1-6-60 vide Ex.9. Mangilal (P.W.7) has proved the report Ex. 8. In cross-examination this witness has admitted that stones spread by the public were entered in the measurement book and it was the practice that the material collected at the site was first measured and then entered in the measurement book. The various entries in the measurement book do not substantiate the contention of the plaintiff and his witnesses, that unmeasured stones of the plaintiff were used in spreading on the roads or filling in the ruts. The plaintiff did not adduce a clear testimony to impeach the entries in the measurement book on the point of supply of stones and, therefore, this claim has rightly been held as unproved by the learned District Judge.
12. Issue No. 3 relates to the claim of Rs. 1868.50 more towards the costs of ballast. The contention of the plaintiff is that he supplied some what more than 83,000 Cft. of ballast, out of which he has not received the payment for 10,800 Cft. According to the plaintiff out of this unpaid supply, 5000 Cft. ballast was utilised by the department in rainy season in the year 1958-59 in ruts and pits. Ex.13, the relevant measurement book bears the signatures of the plaintiff. Mr. Mehta has contended that the plaintiff had signed the same under protest. Plaintiff has not given the period and reference as to when he male his protest and when he collected the ballast at the site. The depositions of his witnesses on the point are not supported by documentary record. He failed to produce his own documents to substantiate his contention. The plaintiff did not examine the Assistant Engineer to depose the actual fact from his personal knowledge. Plaintiff's supervisor Pannalal (P.W. 8) has admitted that he did not get the material entered in the measurement book by the Overseer, when the plaintiff left the work. Nothing in writing was given to the Overseer in that regard. Pannalal has stated that plaintiff's Munim Mohanlal was maintaining the account of supply and plaintiff was in possession of those documents. Despite that the plaintiff did not substantiate his claim from those' documents. Sohanlal D.W. I has completely rebutted plaintiff's contention and in the absence of any specific evidence from the plaintiff's side there is no reason to disblieve this witness. The learned District Judge has therefore, rightly decided this issue against the plaintiff.
13. Issue No. 4 relates to the claim of Rs. 597.58 for laying and consolidation of soling stones. According to the plaintiff he has not been paid the soling charges for 23,239 Cft. He has failed to corroborate his statement from his own documentary record or even from the record produced from the defendant's side. The witness examined by him do not give details of the measurements. Sohanlal D.W. I has rebutted plaintiff's evidence. The complete consolidation and laying work has been entered at page 32 of Ex. 13 and the final bill Ex.A-2 cantains the same measurement. The plaintiff's evidence was rightly not considered to be strong in comparision to the evidence of Sohanalal Overseer D.W. I supported by relevant document. This issue has, therefore, been rightly decided against the plaintiff.
14. Issue No. 5 relates to the claim towards binding material at the rate of Rs. 9/- per 100 Cft being a sun of Rs. 52.50 more on that court. The defendant did not dispute the rate being Rs. 9/- per 100 Cft. but has taken the plea that quantity supplied by the plaintiff was defective and therefore the payment was made at the rate of Rs. 7/- per 100 Cft. only. The defendant did not produce any document or any witness to depose that the quantity supplied was defective. In this view of the matter, the learned District Judge decided the issue against the defendant and held the plaintiff entitled for this claim.
15. Issue No. 6 relates to the claim of Rs. 1125/- more towards the the consolidation of ballast. The contention of the plaintiff was that he had to spread 88,000 Cft. of ballast on the entire four miles length of the road He has not given the details in the plaint regarding the same, nor has he given the measurement in his deposition and, therefore, the learned District Judge did not consider the entry in schedule 'A' on this point worth believing The learned District Judge has also taken into consideration the fact of the plaintiff signing the bill Ex.A-2 and the corresponding measurement book Ex 13 and held the plaintiff un-successful in proving the alleged supply of ballast. He has, therefore, right in deciding this issue against the plaintiff.
16. Issue No. 7 relates to the claim of the plaintiff for Rs. 572 80 more towards jungle clearance. According to the plaintiff Tej Singh, he was asked by Assistant Engineer and Overseer Mangilal for clearance of an area of 5,28,001 of the jungle but was paid only for the area of 2,41,600 Cft. He therefore, claimed payment at the rate of Rs. 2/- per 1000 Cft for the remaining area. In this concern there is the bald statement of the plaintiff He has admitted to have received the payment of this item by 4th running bill but stated that he protested on May 1, 1938. His own witness, Overseer Mangi Lal, does not corroborate him. No document showing the protest was attempted to be brought on record even while cross-examining DW 1 Sohan Lai. On account of lack of evidence, the learned District Judge rightly decided this issue against the plaintiff.
17. Issue No. 8 relates to the claim of Rs. 677.84 towards the cutting of decomposed rocks. The learned District Judge held the statement of the plaintiff worth of acceptance and, therefore, an amount of Rs. 677.84 was held to be standing to the credit of the plaintiff towards the plaintiff.
18. Issue No. 9 relates to the claim of Rs. 1500/- towards cutting of hard rocks. Except the bald statement of the plaintiff to the effect that he did hard rock cutting work of a quantity of 58,471 Cff. here is no other evidence. On the other hand, DW J Sohanlal has stated the measurement of this work to be 8479 C.ft. Mr. Mehta could not point-out as to how the bald statement of the plaintiff should be preferred to the statement of defendant's witness based on the entries in the relevant measurement book. Thus the decision of this issue also does not call for any interference.
19. Issue No. 10 relates to the claim of a sum of Rs. 504/-more towards cutting of hard rocks (Blasted). The grievance of the plaintiff was that this work measuring 3600 Cft. at the end of mile No. 32 was not entered in the measurement book. Sohanlal DW I with reference to the measurement book entry has stated that only 1 785 Cft. work was done by the plaintiff. The learned District Judge believing Sohanlal DW 1 has rightly decided issue against the plaintiff.
20. Issue No. 1 f relates to a claim of Rs. 70/- towards spreading of Morrum. Plaintiffs' deposition is that Morrum was spread over an area of 1,03,748 Sft, and he has not been paid the balance of Rs. 70/-. Contradicting this contention of the plaintiff, DW 1 Sohanlal has stated that Morrum was spread only in area of 21,654 Sft. This witness was not cross-examined in respect of any entry in the measurement book and, therefore, the decision of the issue requires no further consideration.
21. Issue No. 12 relates to the spreading of the stone ballast at the rate of 6/- per 100 Cft and the claim of the plaintiff for Rs. 215.70 more on that count. Mr. Mehta contended that plaintiff has been paid only at the rate of Rs. 1/- per 100 Cft. while he should have been paid at the rate of Rs. 6/- per 100 Cft. which rate is in confirmity with G.S.R. Learned Additional Government Advocate referred to the reply of the defendant to the effect that there is no provision for payment at the rate of Rs. 6/-. Plaintiff could not point out any instance in which payment at the rate stated by him might had been rightly decided against the plaintiff.
22. Issue No. 13 relates to the supply of 9817 Cft of sand and claim of Rs. 981.70 np. According to the plaintiff Tej Singh he supplied 9817 Cft of sand and claimed payment at the rate of Rs. 10/- per 100 Cft which amount it according to him was still due. The supply has been denied by defendant. There is no such entry in the measurement book. The plaintiff has admitted that the entries in the measurement book were generally correct. Plaintiffs' own witness Overseer Mangilal (PW 7) has not corroborated his version that he had supplied sand instead of Morrum at the direction of Assistant Engineer and the Overseer. In view of this type of plaintiffs' evidence, the learned District Judge has rightly believed the statement of DW 1 Sohanlal that no sand was supplied by (he plaintiff & the issue in our opinion, has been rightly decided against the plaintiff.
23. Issue No. 14 relates to the claim of Rs. 200/- for dressing of the earth work. The learned Additional Government Advocate submitted that the dressing of the earth is included in the rate of the earth work and therefore, the plaintiff' is not entitled to any extra claim. Plaintiff has not adduced any oral or documentary evidence in respect of his contention. On the other hand, he has admitted the correctness of the measurement book entries and discussion about this measurement with the Executive Engineer. This claim of the plaintiff has, therefore, been rightly rejected by the learned District Judge.
24. Issue No. 15 relates to the claim of Rs. 2000/-on the ground that the plaintiff had provided bye-passes on the road. Mr. Mehta submitted that plaintiff should have been given this amount for new detoure or the deviation roads during the period of construction of the road. The defendant's reply is that according the detailed Rajasthan PWD, specifications it was the responsibility of the plaintiff to prepare the bye-pass if required, when the construction work was in progress. The failure on the part of the plaintiff to cite any example in which such extra amount might have been paid for the bye-passes has rightly led the learned District Judge to decide this issue against the plaintiff.
25. Issue No. 16 relates to the claim of Rs. 1650/-as the costs of 15,000 Cft. of stone ballast on the querries by the plaintiff. Plaintiff has claimed this amount at the rate of Rs. 11/- per 100 Cft. which is the scheduled rate of ballast left at the querry. Defendant has deuied the liability for the stones lying or collected at the querries. Mr. Mehta could not point out any evidence on the point. Even in the trial court this claim was not agitated much. The decision of this issue against the plaintiff therefore requires no discussion.
26. Issue No. 18 relates to the claim for the refund of Rs. 2,385/-towards hire of the road roller. The averment of the plaintiff is that he was charged Rs. 45/- per day for the road roller provided by the department as against the scheduled rate of Rs. 17/-per day. The learned Counsel for the appellant strenuously contended that the department should not have charged at the higher rate when it was not so decided. Ex.A-18 is the letter giving cut the charge at the rate of Rs. 45/- from 1956. Tejsingh plaintiff has admitted to have received that letter. In view of this letter the plaintiffs' case loses all strength. Consequently the claim on this count was rightly rejected.
27. Issue No. 19 relates to the claim of Rs. 6675/- more towards the supply of soling stone for the work at Section II that is from mile No. 34 to 38. The grievance of the plaintiff is that whereas he had supplied soling stone to the quantity of 1,20,899 Cft. he has been paid only for 75,254 Cft. amounting to Rs. 9032.88 P. and the amount of Rs. 6675/- remains due. This is the admitted position that the plaintiff completed earthwork and spread the soling only in one mile & left the work incomplete in that Section. He did not spread the ballast or did any consolidation work at all in that Section. When the plaintiff has admitted that he was maintaining the accounts for the supply made by him and kept the stock register, it was incumbent upon him to support his version by documentary evidence. His failure to do so has led trial court to place reliance on the deposition of Sohanlal and the relevant entries in the' measurement books and the bills for the work. There is no scope for any interference on the decision of this issue.
28. Issue No. 20 relates to the claim of Rs. 2017.50 towards the price of the ballast regarding the work at the Section II. According to the plaint-averments, plaintiff has not been paid the balance of Rs. 2017.50 for supply of 12,000 Cft. of ballast. In his deposition Tejsingh plaintiff has admitted that he has been paid for 7000 Cft of stone ballast and that, only payment 5000 Cft ballast remains due. Here also, as in the issue on this item for the work in the Section I, except the bald statement of the plaintiff, there is nothing on the record to substantiate his claim DW 1 Sohanlal has pointed out that the payment was made according to the entries in the measurement book. The claim has, therefore, been rightly rejected by the learned District Judge.
29. Issue No. 21 relates to the claim of Rs. 2017.50 more towards laying and consolidation of stone soling. The claim of the plaintiff is based on the averment in the plaint for doing laying soling and consolidation work for the total quality of 85,200 Cft. But in his deposition in the court plaintiff has admitted to have done this work only to a quantity of 56,850 Cft and the rest of the work having been got done by the department. Defendant's reply was that the work was only to the extent of 20,625 Cft. Plaintiff did not produce the relevant documents with him, which could have disproved the entries in the measurement book and the final bill Ex. A. 1. This claim, therefore, has rightly been held to be unproved by the learned District Judge.
30. Issue No. 22 relates to the claim of a sum of Rs. 976.86 more for the binding material. As against the averment of the plaintiff that he supplied a quantity 94,450 Cft of binding material, the defendant's reply was that the binding material to the extent of 74,301 Cft only was supplied by the plaintiff, while material to the extent of 9295 CFT was got supplied through other agency. That the payment of the same has been made to the plaintiff at the rate of Rs. 9/- per 100 Cft as per agreement. Defendant's witness Sohanlal has proved this fact by entries in the final bill and the corresponding entries in the measurement book. Plaintiff could not controvert this contention by adducing any oral or documentary evidence. Hence there is no error in the decision of this issue.
31. Issue No. 23 relates to the claim of sum of Rs. 350/- more towards jungle clearance. Plaintiff has been paid for a quantity of 1,98,800 Cft as per entry in the measurement book on the basis of which 8th final bill Ex. Al was prepared. Plaintiff could not substantiate his claim that the clearance work was for 3,73,880 Sft and, therefore, in view of the evidence of Sohanlal DW 1, based on documentary proof, plaintiff's claim has been rightly awarded against him.
32. Issue No. 24 relates to the claim of Rs. 200/- for the dressing of the earth work. The discussion of issue No. 14 for Section I is applicable to the claim for this issue in view of plaintiff's failure to prove a separate scheduled rate of Rs. 2/- per 1000 Cft for earth dressing work and the same not being included in the rate of the earthwork. This claim has, therefore, been rightly rejected by the learned District Judge.
33. Issue No. 25 relates to the claim of Rs. 2000/- for providing bye-passes in the Section II. This issue is similar to issue No. 15 for the work in the Section I. As observed earlier it was the responsibility of the plaintiff to provide deviation road while road construction work was on progress. The rejection of this claim requires no consideration.
34. Issue Nos. 17 relates to the challenge of the authority and legality of the penalty imposed upon the plaintiff and for that reason claim for re-imburesment of Rs. 6200/- for the work in the Section I. Issue No. 26 relates to the claim of re-imbursement of Rs. 5620/- for the work of Section II, on the same ground. It is this claim which Mr. Mehta, learned Counsel /or the appellant has emphasized and most forcefully assailed the finding of the trial court.
35. Ex.A-17 is the order passed by the Chief Engineer, PWD (B.&R.;), Rajasthan, Jaipur dated 10-6-60 imposing the penalty. The Superintending Engineer was ordered to measure the work done by the contractor and get the remaining work done at the costs and risk of M/s Om Karyalaya contractor. This order was in accordance with the provisions of Clause 3(b)of the agreement.
36. Mr. Mehta, learned Counsel for the appellant has laboured much to convince us that the delay in the work was on account of the delayed alignment and the non-cooperation of the departmental personnel. Another ground taken to assail this imposition of penalty taken by Mr. Mehta is that the Chief Engineer has not acted judicially in imposting the penalty of 10% and, therefore, the order Ex.A-17 is illegal, arbitrary and void. To strengthen his argument he raised two points. Firstly, that the time was not the essence of the contract and as the defendants extended the time again and again, Clause 2 of the agreement for imposing of penalty was not attracted. Secondly, Ex.A-17, the order for imposing penalty was passed much after the expiry of the extended time and, therefore, can not be said to be a legal order. In this regard Mr. Mehta referred to the cases of South India Railway Co. Ltd. v. S.M. Bhashyam Naidu and Ors. : AIR1935Mad353 and Shambhulal Panalal Vaish v. Secretary of State AIR 1940 Sindh 1. It is pertinent to note that, Clause 2 of the agreement empowered the Chief Engineer or duly authorised Engineer to fix the compensation. The decision in writing of the Chief Engineer or duly authorised Engineer has been made final. This Clause provides for the compensation for failure to complete particular work or portion of work in the contract period. The various conditions regarding the compensation of the work are enumerated in Clause 2 of the agreements Ex.A-6. The last part of Clause 2 reads as under:
In the event of the contractor failing to comply with this condition, he shall be liable to pay as compensation an amount equal to one percent, or such smaller amount as the Chief Engineer (whose decision in writing shall be final) may decide on the said estimated cost of the whole work for every day that the due quantity of work remains incomplete, provided always that the entire amount of compensation to be paid under the provisions of this clause shall not exceed 10 percent on the estimated cost of the work as shown in the tender.
37. This is not in dispute that the work could not be completed within the specified period. The various letters Ex.A-9 to Ex.A-16 referred to by the learned District Judge were sent from the defendant Department to the plaintiff, intimating him that in case he does not raise the speed of work and complete the work in time, the work would be carried out through any other agency at his costs and risk and that suitable penalty will be imposed and deducted from his bills. The various notices issued to the plaintiff-contractor denote the warning to him and the intention of the Department to produce under Clause 2 and 3 of the agreements. In case his work was not per specification of Clause 2.
38. This is the admitted position that the work left incomplete by the plaintiff was got completed through another agency. Plaintiff has admitted that he had received notice regarding the slow progress in the work. He has also not denied defendant's case that he was intimated that recommendation has been made to the Superintending Engineer (B&R;) Udaipur to rescind (he contract with full compensation at '0% of the estimated cost of the work, as shown in tender under Clause 2 of the Condition and Execution of the work through other agency at his cost and risk. The various letters show the dis-satisfaction for the work of the contractor.
39. The two cases relied on by the learned Counsel for the appellant do not help him. In the case of South India Railway Co. Ltd. v. S.M. Bhashyam Naidu : AIR1935Mad353 , the question about the interpretation of the finality clause regarding the powers of the engineer regarding the matters of contract came for decision and it was observed, that, in case of the contract between the person and company, even when the party agrees that the decision of the engineer will be final, still it is entitled to say that engineer has not acted judicially. After discussing the relevant record in the case the learned Judge arrived at the conclusion that the evidence did not show that the Chief Engineer was at all conscious of the fact that the contract in the case differed in very important particulars from the printed specification in the company's standard work. While discussing the document Ex. 2, the reply sent to the contractor regarding his claim, the learned Judge observed that it only stated that the measurements have been prepared in accordance with the engineer's instructions on the subject and it as importing a further decision that these instructions were right, in view of the terms of the particular contract. It was from that point of view that the learned Judge attached particular significance to the fact that the contractor had not been heard all before Ex.2, was sent.
40. In the case in hand, the circumstances are altogether different. At various times, it was brought to the notice of the contractor that the work is not progressing as per terms of the Agreement and further, that, he would be liable to be proceeded under Clause 2 and 3 of the Agreement, in case he would not expedite the completion of the work. He was given particular time to complete the work and again it was extended. His explanation for (he delay was also duly considered. Ex.A-17 and other relevant documents show that the necessary record was before the Chief Engineer, PWD (B&R;), Rajasthan, Jaipur, when he considered the question of imposing penalty vide order Ex. A-17.
41. In this view of matter, we are of the opinion, that the order Ex. A-17 was passed after due consideration of the material on record and there was no necessity for any personal hearing of the contractor.
42. In the case of Shambulal Pannaial Vaish v. Secretary of State AIR 1940 Sindh 1 the question about the time being of the essence of the contract came for decision and it was observed as under:
The question whether or not time is of the essence of a contract is a question of the intention of the parties, to be gathered from the terms of the contract. Where there is an express provision that time is of the essence of the contract and at the same time, provision for extention of time in certain contigencies, and for the, payment of a fine or penaly for every day. or week, the work undertaken under the contract remains unfinished, on the expiry of the time provided in the contract, such provision is inconsistent with time being of the essence of a contract, and would be calculated to render in effective an express provision in a contract to that effect. In such a case it cannot be said that it was intended that time should be of the essence of the contract. This principle applies to PWD contracts.
43. Clauses 2, 3 and 6 of the Ex. 104 of that case were analogous to clauses of similar number in Ex. A 5 and Ex. A.6 in the case on hand. In view of the provision for extension of time in certain contigencies, time was not held to be of the essence of the contract. Penalty imposed in the case was not levied during the period of the contract but definitely when the extended period of the contract expired. The explanation given by the contractor in that case, such as the difficulty, in procuring labour, financial hardship etc. were not taken to be satisfactory and the contract was terminated. The security deposit was 10% of the entire estimated cost of work amounted to Rs. 3055/-. The respondents did not forfeit the security deposit under Clause 3(a). They imposed on the- appellant the maximum fine or compensation leviable under Clause 2 of the contract and ten percent of the estimated cost of the entire work and appropriated the security deposit towards the fine, as they were entitled to do under Clause (4) of the contract. An objection was raised that amount of Rs. 3055/- cannot be recovered as liquidated, damages and the time not being of the essence of the contract, respondents were at the most entitled to reasonable damages & they have given no proof of any. It was held that the case was covered by Section 74 of the Contract Act. However, the respondent's claim for amount of Rs. 700/- as paid excess to the new contract found favour and it was held that the respondents cannot have this sum of Rs. 700/- twice over. Respondent had already deducted from the amount payable to the appellant both Rs. 3055/- and Rs. 700/-. In this view of the matter, while maintaining the finding of the trial court for imposition of the penalty the appellant contractor was held to be entitled to recover from the respondents a slim of Rs. 700/- with interest: While deciding the case it was held that upon proper construction of the relevant clauses of the contract, the respondents had a legal tight to act as they did.
44. While assailing the legality of this imposition of the penalty, the learned Counsel for the appellant has submitted that it is a case of double jeopardy because the plaintiff has also been held liable for the excess expenditure incurred by the department for getting the work completed at its own level. The argument has no force because this expenditure had been recovered in view of the provision of Clause 3(b) of the Agreement, while the penalty has-been imposed in accordance with the terms of Clause 2, of the Agreements Ex.A-5 and Ex. A-6.
45. This being the position of law, we are of the opinion, that in the given circumstances of the case, order Ex.A-17 imposing 10% penalty is in accordance with the provisions of Clause 2 of the Agreement and cannot be said to be illegal or arbitrary. Hence these, issues have been rightly decided against the plaintiff-appellant.
46. Issue No. 27 relates to the claim of Rs. 5000/- on the ground that the plaintiff was prepared to complete the work but he was not allowed to do so by the defendant and as such this amount on account of difference of rates of the plaintiff and of person who completed the work left by the plaintiff should be credited to the plaintiff. This is evident from the record that, before getting the remaining work completed from other agency, the defendant department gave several notices to the plaintiff to expedite the work. While discussing Issues Nos. 17 and 26 we have dealt with this point. In view of Ex. 3. letter dated 21st December, 1960, issued by the Executive Engineer, plaintiff was informed of the Chief Engineer's order dated 15th December, 1960 that M/s Om Karyalaya can be permitted to get the work completed on the conditions (i) that the penalty of 10% already' imposed on the contractor for delay in the execution of the work originally will stand, (ii) that the contractor will execute a fresh agreement. This letter has been produced by the plaintiff himself. In this view of the matter, the argument that the department did not permit the plaintiff to complete the remaining work looses force. The learned Counsel for the appellant also did not lay much stress on this point. The decision of this issue therefore requires no more consideration.
47. Issue No. 28 relates to the claim of Rs. 5000/- as compensation on account of delayed payment of running bills resulting the plaintiff's labour remaining idle. The learned District Judge has discussed the conditions of the Agreements & has rightly agreed with the defendant's contention that as per Agreement, the actual cost was not to be paid through the running bills rather only advances against the final payment were to be made. Letter Ex. A 12 dated 9.3 60 has been produced from the defendant's side, indicating that the plaintiff was intimated for being paid twice a month since he started the work after November 1959 in Section I. It is not the case of the plaintiff that he communicated to the Executive Engineer, when the latter went to the Bite, the facts and figures regarding the non-payment of any time, left over. Without there being any specific case regarding delayed payment, the learned District Judge could not have allowed such a claim for the alleged loss.
48. Issue No. 29 relating to the question and Issue No. 31 relating to the maintainability of the suit having been decided in favour of the plaintiff require no discussion.
49. Issue No. 32 relates to the grievence of the plaintiff that he was forced to submit the tender for the work in question. In view of the Agreements Ex. A-5 and Ex. A-6 held to be executed wilfully, the issue was decided against the plaintiff. Mr. Mehta did not raise any point to assail that finding.
50. Issue No. 30 relates to the claim of the plaintiff to Rs. 18, 876.50 p. as interest at the rate of 9% per annum. The learned District Judge has held that plaintiff could not show any stipulation for charging interest at that rate. The learned District Judge, however allowed interest at the rate of 6% per annum by way of damages to the plaintiff from the date of the suit to the date of the decree and further till realisation on the amount found due against the defendant. The learned Counsel for the appellant did not assail the reasonings given by the learned District Judge.
51. From the discussion above, we are inclined to hold that the learned District Judge has decided the various issues on sound reasonings and his findings call for no interference.
52. Consequently the appeal having no merits is dismissed with costs.