The A.P.State Civil Supplies vs. The Assistant Director

SRI. K. VENKATAREDDY S/O SRI. K. JANGAMA REDDY HINDU, MAJOR CLASS I PWD CONTRCTOR AT USHA NILAYA, BESIDE SIDDARODA ASHRAMA AMARJYOTHI NAGARA KUNIGAL ROAD, TUMKUR, PIN CODE-572 101

…RESPONDENT

(BY SRI. V.B. SHIVAKUMAR, ADVOCATE)

THIS RFA IS FILED U/SEC.96, OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.09.2010 PASSED IN O.S.40/2004 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND CJM, TUMKUR, DECREEING THE SUIT FOR THE RECOVERY OF MONEY.

THIS REGULAR FIRST APPEAL HAVING BEEN RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS DAY, RAMACHANDRA D. HUDDAR J., DELIVERED/ PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE S.G.PANDIT AND HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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CAV JUDGMENT (PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)

This appeal is directed against the judgment and decree dated 30.09.2010 passed in OS No.40/2004 by the Senior Additional Civil Judge and CJM, Tumkur. 2. Parties to this appeal are referred to with reference to the ranks before the trial Court. 3. The defendants are in this appeal. 4. That plaintiff filed a suit against defendants for recovery of sum of Rs.4,88,07,144/- from the defendants. It is the case of the plaintiff that he is a Class-I PWD Contractor and as per the tender invited by defendant no.1 towards construction of cement concrete lining between 100 and 103 kms. of Tumkur Branch Canal, he submitted a tender which was accepted by the defendants and to that effect, an agreement was entered into between the plaintiff and the defendants on 28.02.1996.

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Executive Engineer concerned by his letter dated 20.06.1996 directed to suspend the work for free flow of water. It was in force till 06.11.1996 6. It is stated that the plaintiff made several correspondence with defendants and waited for change in design as directed by the defendants. The Executive Engineer issued reply admitting several abstractions and requested the plaintiff to carry over the work wherever there is no abstraction. Even the plaintiff has listed the equipments he has stored at the spot after issuing the work order. It is stated that the plaintiff completed the work during January 1998 and to that effect, the defendants preferred bills for Rs.37 lakh only by deducting the sale tax and income tax. 7. It is alleged by the plaintiff that before the completion of the work with regard to the concrete line between 102.4 kms to 103.00 kms. It was collapsed due to defect in the design. There were several experts given the report with regard to the defective design including

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Karnataka Engineering Research Station, Centre for Scientific and Industrial Consultancy for Indian Institute of Science. It is observed that the cotton soil is found from 103 kms. and there is Alasina Tank at a distance of 80.00 mts. So also there are irrigated paddy crops on either side of the canal. As per the reports for the causes of failure is non providing for reinforcement in the CC lining, non availing of super passage to drain out stagnated water and other factors so also, causing uplift pressure in the CC line. Though the reports suggested remedial measures but defendant did not care for the same. The said reports submitted by the aforesaid authorities, did not point out any defects in the work undertaken by the plaintiff. 8. It is alleged by the plaintiff that he has completed the work and in the month of June 1998, the bills were prepared for Rs.63,00,000/- deducting 20,00,000/- towards F.S.T, and Rs.43 lakh were payable by the defendants. But, defendants paid only 23 lakh. It is alleged that because of failure on the part of the

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defendants to pay the amount being submitted as per the bill submitted by him, after issuance of legal notice, the plaintiff filed a W.P.No.28793/2000 seeking writ of mandamus directing for payment of Rs.24,59,658/-. In the said writ petition, defendants admit that they are liable to pay Rs.46,83,586/-. An interim order was passed in the writ proceedings. The plaintiff got issued a legal notice on 20.10.2003 and called upon the defendants to comply the directions issued by the Hon’ble High Court. But, the Chief Engineer concerned rejected the claim of the plaintiff vide letter dated 07.11.2003. Therefore, the plaintiff was constrained to file the suit claiming the suit claim from the defendants as tabulated in para 6 of the plaint to the extent of suit claim stated supra. The defendants are liable to pay the same. Therefore, it is prayed by the plaintiff to decree the suit. 9. Pursuant to suit summons, the defendant appeared before the trial Court and it is defendant Nos.2 to 4 filed the written statement admitting about

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entrustment of a tender work as stated in the plaint and also issuance of work order dated 04.03.1996. It is contended that as per the agreement, a condition is imposed on the plaintiff that there is a program of work for allowing water by the end of June 1996 in Tumkur Branch so as to cater the drinking water to Tumkur Town up to 125 kms. an extension of time would be given as per the rules but without any extra rate. The other allegation with regard to the proceedings of the work by the plaintiff as stated in the plaint, carrying of the equipments and men etc. is denied. It is contended that the plaintiff fails to start the work with adequate men and machine though he was instructed to commence the work immediately but he went on issuing several notices. So far as change of design as directed by the Superintendent Engineer, it is not in dispute. According to the defendants, the said change of design is in confirmative with Class-13(a)(1) of agreement. The said change of design would benefit the plaintiff as the work of excavating the land would decrease considerably. As per the program of work from quarterly month, the

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plaintiff has failed to comply the same. Though there was a proposal for change of design, plaintiff would have proceeding without removing sheet, excavation of earthwork and would have done the bed work of the canal. Therefore, the delay could not have been attributed against the defendants. 10. It is contended that though there was a collapse of cement lining, it is plaintiff who is responsible for draining out the water. The contention that there was a damage to the super passing because of drain water is denied. So from the report from K.E.R.S. and I.I.S.C. is concerned, it is contended that because of improper maintenance by the plaintiff there was damage. For this wanton negligence on the part of the plaintiff, the defendants are not liable. According to the defendants, the work was to be completed on 04.09.1996. There is latches on the part of the plaintiff and he actually completed the work in the year 1998. Now, the claim of the plaintiff is barred by limitation as per class-8 of the agreement, as

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computation of date began from 02.02.1997. The defendants are not liable to pay the amount as claimed and both plaintiff and defendants are not bound by the agreement. It is contended that there is no provision in the agreement for making any separate payment towards establishment charges. The plaintiff was supposed to quote his tender rates after taking into consideration of the element such as materials, labours and establishment charges. Amongst other grounds, it is prayed by the defendants to dismiss the suit. 11. Based upon the rival pleading of both the parties, the learned trial Court framed in all 17 issued and one additional issue, they read as under: “1. Whether plaintiff proves that the work was suspended from 18/4/1996.? 2. Whether the plaintiff proves that the period of suspension was not informed to him." 3. Whether the plaintiff proves that suspension was in force till 6/11/96.?

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negative and ultimately, decreed the suit of the plaintiff directing the defendants liable to pay Rs.4,34,99,380/- to the plaintiff together with interest @ 12%p.a. from the date of suit till realisation fastening the liability on the defendants joint and several. 14. Now, the defendants have preferred this appeal challenging the impugned judgment of fastening the liability on the defendants jointly and severally to pay the amount so stated in the decree. 15. Trial Court records are secured. 16. The learned counsel for the appellants- defendants ardently submits that the claim of the plaintiff itself is barred by limitation as because though the work was completed in the year 1998 as per the case of the plaintiff, the plaintiff has filed the suit in the year 2004. Without any cause of action, the plaintiff has filed the suit which is time barred. It is further submitted that as per the conditions stipulated in the tender, the work was stopped on 20.06.1996 due to letting out of water to Tumkur town

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and on 06.11.1996, the defendants directed the plaintiff to resume the work with a request to complete the work expeditiously. There is no proper adherence to the request of the defendants by the plaintiff. 17. The learned counsel for the defendants would further submits that the stoppage of the work was strictly in accordance with the specific condition of the contract and now the plaintiff cannot contend that the defendants were responsible for delay in completing the tender work. In the month of November 1996, itself the respondents started correspondence with the plaintiff and even plaintiff also started addressing letters that defendants should give revised dates for the work executed beyond the original tender. This claim of the plaintiff is contrary to the tender condition. The learned counsel for the defendants would further submit that the plaintiff is not entitled for any new rates for the work done beyond the stipulated period and whatever he is entitled is as per the agreement. Even the appellant has paid the revised rates for all the items of the

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work as per the agreed tender conditions as admitted by the respondent in the cross examination. In view of the proviso to Section 70 of the Indian Contract Act, the learned counsel for the defendants would submit that the work so executed by the plaintiff was under non gratuitous contract. Therefore, the plaintiff is not entitled for new rates. Based upon the principles laid down upon the provision upon 70 of the Indian Contract Act, the principle of “Quantum meruiut” i.e., if any person does any work without any agreement and if the said benefit has been appropriate by the other party, then party who has done the work is entitled for payment to the extent of benefit taken by the other party. Therefore, the principle is aptly applicable to the claim of the plaintiff. There is no agreement between the plaintiff and the defendants that benefit is taken by the defendants. 18. The learned counsel for the defendants further would submit that as per the plaint averments, the plaintiff has claimed marked rate, but only claiming schedule rate

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for the works done beyond in excess of the agreement is not permissible. The quantity of the work done and equitable rate so claimed by the plaintiff is denied by the defendants. According to the learned counsel for the defendants, the scheduled rate and rates of the plaintiff so claimed by the plaintiff is the own assumption of the plaintiff. Ex.D20 shows the comparative statement showing the equitable rates claimed by the plaintiff. It is not considered by the trial Court. The learned trial Court adopted a policy of pick and chose in arriving at a conclusion. The learned counsel for the appellants- defendants further would submit that rightly the trial Court has rejected the claim of idle charge of labour, but upheld the clam of the plaintiff with regard to idle charge of machinery which is incorrect. There is an admission on the part of the plaintiff in his cross examination having incurred an expenses of Rs.35,50,800/- towards idle charges of the machinery and same is reflected in the expenditure account. The learned counsel for the defendants would submits that the trial Court has

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committed error in arriving at a conclusion that the plaintiff is entitled for the amounts so decreed. So far as preparation of the bill with regard to Rs.37,00,000/- the trial Court has committed error and has wrongly passed an order to release the said amount. Amongst other ground including the rate of interest charge on the suit claim, the learned counsel for the defendants would submit that the trial Court has committed grave error in decreeing the suit as prayed for. There is no proper appreciation of evidence by the trial Court. In addition to submitted fact of the case as well narration of evidence placed on record, it is submitted by the learned counsel for the appellants – defendants to set aside the impugned judgment and dismiss the suit. 19. In contrast to this submission, the learned counsel for the plaintiff-respondent justifies the findings of the learned trial Court as well as reasons given thereon in decreeing the suit of the plaintiff. According to the submission of the learned counsel for the plaintiff-

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respondent, the claim of the plaintiff is not barred by limitation as there was a continuing cause of auction to file a suit for recovery of amount. Several correspondence were made by the plaintiff brining to the notice of the defendants about the delay being caused in completing the work because on the lapse of the defendants. At the instance of the Superintendent Engineer, the design was sought to be changed and though several correspondence were made to change the design but defendants did not comply the request of the plaintiff. Even the Executive Engineer of the defendants admitted the cause of delay on the part of the defendants by addressing reply to the plaintiff. 20. The learned counsel for the plaintiff would submit that the trial Court has based upon the evidence and admissions of DW1 has rightly concluded that there is lapse on the part on the defendant and at the instance, there is delay and not on the part of the plaintiff. The learned counsel for the plaintiff would further rely upon the

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findings of the trial Court and pleadings of the plaintiff inconsonance of the same the evidence placed on record both oral and documentary. Therefore, supporting the reasons assigned by the trial Court, it is prayed by the learned counsel for the plaintiff to dismiss the appeal by confirming the impugned judgment. 21. We have given our anxious consideration to the arguments of both the side. Meticulously perused the records. 22. In view of the rival submission of both the side, the following points arise for our consideration: 1) Whether the trial Court has committed any illegality in holding that at the instance of the defendants there was a delay in the completion of the work and thereby plaintiff has to meet additional expenses towards purchase of the materials to complete the work entrusted to him?

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2) Whether the trial Court has committed any illegality or infirmity in appreciating the evidence placed on record by both the parties in holding that the work was carried out by the plaintiff in accordance with the specification and designs supplied by the defendants? 3) If so whether the trial Court is right in holding that plaintiff is eligible for new rates as a work was done beyond the stipulated period at the instance of the defendants? 4) Whether the judgment and decree of the trial Court suffers from any infirmity or illegality and require interference by this Court? 5) What order? Point Nos.1 to 3 are discussed together. 23. Before adverting to the other aspects of the case, let us analyse the admitted facts between both the parties.

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i) Plaintiff is a Class-I PWD Contractor applied as per the tender publication published by defendant No.1 for construction of cement concrete lining between 100 and 103 kms. Of Tumkur branch canal. ii) The tender so submitted by the plaintiff was accepted and to that effect on 28.02.1996 an agreement was entered into between plaintiff and defendants as per Ex.P1. iii) As per the agreement, it was stipulated that plaintiff has to complete the said work within six months including three months rainy season. iv) Plaintiff mobilised the required equipments, labours to the site. v) The Superintendent Engineer visited the place of work on

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10.04.1996 and noticed that the site slopes provided were not proper and recommended for change in design. vi) There were several correspondences between plaintiff and defendants seeking approval of the change in design vide letters dated 10.04.1996, 18.04.1996, 25.04.1996, 20.05.1996. vii) The work was stopped by the defendants on 18.04.1996 on the ground of change in the design. viii) Plaintiff informed the defendants by his letter dated 20.05.1996 that super passage at 100.5 kms. is broken and the area is getting flooded. ix) The Executive Engineer addressed a letter to the

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plaintiff dated 20.06.1996 and directed to suspend the work for flow of water and the said flow of water was in force till 06.11.1996. x) The Executive Engineer admitted several obstruction brought to his notice by the plaintiff but requested the plaintiff to carry out the work wherever there are no obstructions. xi) Plaintiff completed the work entrusted as per the tender by January 1998. xii) None of the defendants or any superior officers or experts found any defects in the work done by the plaintiff. xiii) The claim of the plaintiff was rejected by the Executive Engineer by his letter dated 07.11.2003.

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iv. Louring and Crushers – 1 and 2 v. Crushers – 1 no. vi. Other Necessary tools – as required for he work vii. Labourers are plenty – 100 nos. viii. Establishment consists of Managers, Site Engineers, Supervisors, Clerk etc. as required for the construction work at camp. ix. Camping equipments” 27. PW1- plaintiff throughout his evidence has stated the entire contents of the plaint averments and also narrated the placement of equipment/establishment so also other required machinery at the spot. He is specific in his evidence about lapse on the part of the defendants in complying the terms and conditions of the agreement. According to him, he has claimed only scheduled rates. 28. This PW1 is cross-examined by the defendants intensively. It is admitted by him that as per the conditions, he had agreed to stop the work whenever there is request to provide water to Tumkur town. He denied the suggestion that he has stopped the work on 04.06.1996.

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Even he admits that as per condition No.12A, it was fourth defendant who had powers to change the design. He further states that, it was defendants who got changed the design so also he agreed for removal of silt so also digging at the spot. He further states that, there was further new agreement in between himself and defendants. He further states that as per the agreement, he has to take steps to close the spot for the purpose of flow of the water to the `Nalas`. It is suggested to PW.1 that on 24.6.1996, the fourth defendant asked him to repair the super passage. As per Schedule-B, he has to charge the agreed rate for the purpose of removing the silt and defendants agreed to pay for the same. He admits that, as per Schedule–B, defendants have provided the rate as per the agreement and as per the Labour Act, he has completed the work. The suggestion that he has not carried out the work in accordance with the Labour Act is denied by him. He has denied all other suggestions directed to him.

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admits that, the Karnataka Engineering Research Institute had inspected the spot and submitted a report as per Ex.P12 so also their own Engineers have given the report pointing out no defect in the work carried out by the plaintiff. He admits that, from month of June till November in the said canal there is a flow of water to supply the same to Tumakuru Town. He admits that after April 1996, plaintiff brought the labours, equipments, machineries and started the work. There was no excavation. As per the contract, plaintiff had to use the steel and thereafter it was informed to him not to use the steel. Thereafter, by putting the gravel a thickness was made to the extent of Rs.1.2 mtrs. Even this fact is brought to the notice of technical sanction committee and based upon the report of technical committee they took the decision with regard to slope design by not using the steel etc.. As per his evidence, the report of Indian Institute of Science as well as the technical report are true and correct. In the further cross-examination, he states as under:

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deposited as EMD and FSD is still with the defendants. He further admits that, after trimming the work spot only, it is possible to put the lining. He further admits that, as the canal is old, it requires more trimming and further admits that, because of change in design with regard to the slope, the work became more with regard to the digging to construct the sloping. He further admits that, except falling of the canal sloping almost the plaintiff has completed the work. He admits that, the work force and men and machinery came to the spot on 20th 1996 and March until the completion of the work, they were there and plaintiff has demanded his claim towards the same. He states that there was no discussion or thinking of providing the schedule rate as claimed by the plaintiff and it was not considered. He admits that as per the schedule rates only, plaintiff has claimed his claim in the suit. He further admits that, whatever the report being submitted by the aforesaid authorities are accepted by his Department.

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design. Because of this, he is specific that, he was made to work beyond the stipulated time, therefore he is entitled for fresh rates. This assertion and claim of the plaintiff is denied by the defendants. 34. On scrupulous reading of the documents produced by the plaintiff i.e. by way of correspondences so marked in this case do suggest that, there were several correspondences made by the plaintiff with the defendants and they are marked at Ex.P3 P4 and P6 P7, 8 and ultimately Advocates notice at Ex.P15 was issued. Receipt of these letters is not denied by the defendants. Plaintiff has also produced three reports Ex.P10, 11 and 12 i.e. of KERC, IISC and KERC respectively and these reports are very much silent about any defects in the work carried out by the plaintiff. Even the Superintendent Engineer addressed letter as per Ex.P13 bringing to his notice that the work done by plaintiff is satisfactory. There was some rectification deed. As because, defendants did not make any payment, plaintiff filed writ petition as per Ex.P18

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wherein certain order was passed by writ court. The defendants categorically admitted about the due towards plaintiff’s work from them. The log books and other documents are produced by the plaintiff and even the bills also have been produced by the plaintiffs which are not denied by the defendants in material particulars. 35. From the evidence of PW.1 and suggestions directed to him, so also admissions given by DW.1 do suggest that, the said delay was caused not at the instance of the plaintiff but, because of the decision being taken by the defendants to change the design as well stopping of work to flow the water to Tumakuru town through the said canal. Thus, as rightly concluded by the trial Court, there was no fault on the plaintiff to complete the work beyond the stipulated time. 36. As per clause 13-A(i)(o) of the agreement, it was Executive Engineer who had power to make any alterations, omissions, additions, substitutions with regard to the original specification designs drawings and can give

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instructions which appear to him necessary. As per this clause only, the Executive Engineer has suggested certain change in design and directed the plaintiff to supply the new design in place of old design which has consumed sufficient time. Even as per this clause, as per the decision taken by the Executive Engineer to change the design, the plaintiff has to carry out the work, in accordance with the instructions given by the Executive Engineer. This variations so suggested by the defendants was carried out by the plaintiff as per the aforesaid three reports. The learned trial Court has culled out the said clauses in its judgment and has come to the conclusion that, because of delay in carrying out the work at the instance of the defendants, plaintiff had to meet extra expenses. It was directed to the plaintiff to stop the work. Even DW.1 admits that plaintiff to carry out as per the schedule which is claimed in the plaint. When there was delay on the part of the defendants to approve the new design or change or evidence brought on record, the time stipulated as per the agreement expired, the plaintiff proceeded with a work as

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admitted by DW.1 then, no fault can be found with the plaintiff. When delay is caused at the instance of the defendants, definitely plaintiff is entitled for schedule rates for the work carried out by him beyond the stipulated period as agreed. Though the defendants contend that plaintiff is not entitled but, the evidence of PW.1 clearly shows that the tender so accepted provided a rate of cement at the rate of Rs.124/- per bag and plaintiff had used 15,000 bags of cement. This fact is not denied by DW.1 throughout his cross-examination. To that effect, plaintiff has produced the bunch of bills as per Ex.P44 which are marked without any objections from defendant side, thereby the plaintiff had to spend Rs.26/- more towards each cement bag. In addition to the value of cement per bag, it is not ruled out that, plaintiff had to meet other incidental expenses also towards loading charges, transportation etc., Though the learned counsel for the defendants relied upon various judgments and evidence but, purchase of the cement at the rate of Rs.150/- per bag by the plaintiff from various places as

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stated in Ex.P44 bunch of bills and its loading and transportation charges is not denied by the defendants. If that is so, now the defendant cannot escape the liability towards plaintiff. 37. Even Clause 59 of the agreement, though specifically states about prohibiting compensation for delay beyond the contractual period, but, Sec.70 of the Indian Contract Act, comes to the rescue of the plaintiff wherein, it states that, it is the obligation of a period enjoin benefit of non-gratuitous Act. This section says “Where a person lawfully does anything for another person or delivers anything, not intending to do so gratuitously such other person enjoins the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore, the thing, so done or delivered.”

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worth to say that, a claim for compensation/rates now claimed by the plaintiff is to be granted. This Section 70 of Indian Contract Act comes into operation as it is not based on any subsisting contract between the parties. Its basis is that, something had been done by one party from the other which the other party has voluntarily accepted. Therefore, Section 70 and para. 3 of Section 73 are based on the `Doctrine of Restitution’ which prevents unjust enrichment by retaining anything received by a party which does not belong to him and he must return it to the person from whom he received it and if action is not possible pay him in its money value. 39. Based on the provisions of Section 70 of the Indian Contract Act, the principle of `Quantum meruiut’ i.e., if any person does any work without any agreement and if the said benefit has been appropriated by the other party, then party who has done the work is entitled for payment to the extent of benefit taken by the other party.

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Therefore, this principle is aptly applicable to the claim of the plaintiff. 40. Thus, by applying the provisions of Section 70 and 73 of IC Act as admitted by DW.1, certainly defendants cannot deny the work done by the plaintiff beyond the stipulated time at their instance and he was compelled to spend more amount than stipulated in the agreement and had to incur Rs.26/- more per cement bag. It is not the case of the defendants that, they entered into contract with plaintiff without any authority. The plaintiff met the said expensed who was entrusted with the work even beyond the period stipulated and he was under legal compulsion to complete the work and there was a pressure to complete the work. Therefore, the plaintiff has claimed the scheduled rates which cannot be denied by the defendants. Likewise, plaintiff has claimed certain amount from the plaintiff as stated above towards various claims and because of that delay and stoppage of the work by the defendants, the plaintiff was to pay the idle charges, so

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also other labour charges. Though the defendants deny about the same, but, it is plaintiff who is ultimately affected and there is failure to discharge the liability by the defendants. Therefore, under Section 72 of the Indian Contract Act, the plaintiff has a right to enforce his claim and make the defendants liable for the same who are guilty of delay. Section 73 of the Indian Contract Act speaks of compensation for loss or damage caused by a breach of contract. If the provisions of Section 73 of IC Act is applied to the present facts of the case, the first paragraph of Section 73 deals with compensation for loss or damage caused by breach of contract. In this case, there is no breach of contract and contract is not broken. But, however, the second paragraph speaks of no compensation is payable for any remote or loss or damage. But, the fourth paragraph provides that while assessing the damage, the existing work carried out has to be taken into consideration and such plaintiff cannot be put to any inconvenience and his claim cannot be denied. Even defendants have not stated that there is a breach of

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contract. A special right was given to the plaintiff for extending the time making him to comply the obligations of completing the work. no notice was issued by the defendants that they have terminated the work contract. By Feb. 1999, he completed the work. 41. It is a suit for recovery of money based upon the contract entered into between the plaintiff and defendants and the contract is concluded and now the plaintiff has claimed the scheduled rates. There is no breach of contract at any point of time. Therefore, as rightly concluded by the trial Court, as the delay occurred at the instance of the defendants and in view of the strict provisions of Indian Contract Act, the defendants are bound to pay the amount to the plaintiff.

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suit claim together with interest at 12% p.a. It has come in the evidence of PW.1 that, he had employed 100 labourers by paying them Rs.40 per day i.e.Rs.4,000/- per day and he claimed such amount for 320 days and he has produced Ex.P31 and 32 giving the particulars of labourers. Though it is the case of the defendants that, no proper account is maintained, but, in view of the clauses mentioned in the agreement, the plaintiff has to subscribe his workers to the contractor’s benevolent fund to the extent of 0.10 percent and to that effect, amount is to be calculated. The defendants have to deduct the subscription furnished by the plaintiff. As rightly discussed by the trial Court, there is no pleading to that effect by the plaintiff. Thus, the learned trial Court has concluded about entitlement of labour charges. The documents produced by the plaintiff i.e. log books marked at Ex.P25 to 30 shows the details of machineries and their use by the plaintiff during the aforesaid days. For the delay caused by the defendants, plaintiff has claimed the amount for men and machineries. We do not find any factual error in view of

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the documents so produced. These documents are undisputed by the defendants. Though the defendants contend so many factual aspects but, they admit about the delay caused by them. There is admission by DW.1 in the cross-examination that, “if there was no change in the design approval, the work would have been completed within the time stipulated in the agreement” itself shows that, at their instance there was a delay and plaintiff has to meet extra expenses because of that delay. 43. In view of all these factual features coupled with admissions of DW.1, it can very well be stated that, the learned trial court is right in concluding that the plaintiff is entitled for suit claim. 44. Though the defendants contend that, claim of the plaintiff is barred by law of limitation but, in view of the stand taken by the defendants in the written statement and stand taken by DW.1 in the cross-examination, his admissions in the cross-examination do establish that defendants still admit and acknowledge the subsisting

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liability towards the plaintiff. Therefore, plaintiff can take the benefit of Section 19 of Indian Limitation Act. That means when there is acknowledgement of liability by defendants and by virtue of correspondences made by defendants’ officials acknowledging the work carried out by the plaintiff and so also expressing their inability to pay the amount etc., now the defendants cannot contend that they are not liable to pay the suit claim as it is time barred. Therefore, we do not find any factual or legal error committed by the trial Court in decreeing the suit. Therefore, the claim of the plaintiff is based upon the factual pleadings and the work carried out by him. Though the defendants recognize the work of the plaintiff and appreciate that there are no defects in the work but, have withheld the amount due to the plaintiff which has made him to wait till this day to get his own money for which he is legally entitled. Therefore, the aforesaid points are answered accordingly.

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iv. Send back the trial Court records along with a copy of this judgment forthwith. Sd/- (S.G.PANDIT) JUDGE

Sd/- (RAMACHANDRA D. HUDDAR) JUDGE

SK/CT-VG List No.: 19 Sl No.: 2