HARIBHAI & BROTHERS Vs. GUJARAT HOUSING BOARD
LAWS(GJH)-2014-1-196
HIGH COURT OF GUJARAT
Decided on January 15,2014

Haribhai And Brothers Appellant
VERSUS
GUJARAT HOUSING BOARD Respondents

JUDGEMENT

- (1.) PRESENT First Appeal, under section 96 of the Code of Civil Procedure, has been preferred by the appellant herein original plaintiff challenging the impugned judgement and decree passed by the learned City Civil Court at Ahmedabad in Civil Suit No. 3296 of 1990, by which the learned Judge has dismissed the said suit instituted by the plaintiff.
(2.) THAT the original plaintiff, who is a building contractor, was awarded a contract to construct 192 tenements for lower income group at Sola Group -2, Division -3 at Ahmedabad by the original defendant Gujarat Housing Board. That acceptance letter dated 4/1/1979 (Ex.24) was issued to the plaintiff accepting the said contract and the Work Order was issued to the plaintiff on 26/2/1979 (Ex.25). That according to the work order, the work was required to be completed by the plaintiff within 12 months from 1/3/1979, however, the plaintiff completed the work on 31/3/1985 and the final bill was paid to the plaintiff on 24/12/1987. That thereafter, after a period of approximately 3 years i.e. on 3/7/1990, the plaintiff instituted the suit praying for a decree for an amount of Rs.34,26,000/ - being Rs.60,00,000/ - by way of increase in the rate for work of construction and Rs.18,24,000/ - by way of interest thereon at the rate of 18% per annum from March, 1984 till filing of the suit. That the defendant filed Written Statement at Ex.18 submitting that in the contract / work order, there was no clause for price escalation and therefore, the plaintiff is not entitled to any decree for any amount by way of increase in the rate for the work of construction. That the learned trial court framed the issues. The parties led the evidence documentary as well as oral. The plaintiff produced the following documentary evidences : - (1)Xerox copy of advertisement given in daily Sandesh by the defendant at Exh.72 (2)Xerox Copy of letter dated 5/3/1986 written by plaintiff to defendant's Chairman at Exh.73. (3)Xerox Copy of letter dated 4/2/1987 written by plaintiff to defendant's Chairman at Exh.74. (4)Xerox Copy of letter dated 19/6/1987 written by plaintiff to Executive Engineer of the defendant at Exh.75. (5)Xerox Copy of letter dated 24/12/1987 written by plaintiff to Executive Engineer of the defendant regarding final bill at Exh.76. (6)Xerox Copy of letter dated 27/3/1990 written by plaintiff to defendant regarding final bill at Exh.77. (7)Office Copy of notice issued by plaintiff to defendant at Exh.78 and (8)Copy of Certificate of registration of Firm at Exh.79. 2.01. The defendant produced the following documentary evidence : - (1)Tender acceptance letter at Exh.24. (2)Work Order at Exh.25. (3)Correspondence with ensued between the parties from Exhs.26 to 35 and Exh. 37 to 57, Exh.59 to 63 and Exh.65. (4)Rozkam at Exh.36. (5)Statement showing monthwise issue of cement Exh.58. (6)Undertaking request by plaintiff to defendant at Exh.64. (7)Statement showing particulars of compensation at Exh.66. (8)Original tender agreement at Exh.67. (9)Final Bill at Exh.68. (10)Copy of resolution debarring the contractors for poor workmenship at Exh.69. (11)Copy of resolution showing names of the debarred contractors at Exh.70. (12)Resolution of 16% deduction in price at Exh.71. (13)Letter and matter prepared for giving advertisement in daily news paper regarding the suit tenements and its price at Exh.97. (14)Letter regarding revised price of suit tenements at Exh.98. (15)Copy of allotment letter of suit tenements at Exh.99. (16)Copy of letter regarding reduction in price of suit tenements at Exh.100. (17)Measurement book at Exh.85. (18)Registers regarding issue of cement and steel at Exhs.84, 86, 87 and 88. 2.02. That the plaintiff examined one Mr.Jasubhai K. Patel, one of its partners at Ex.23 and the defendant examined one Mr.Jashbhai Harjivandas Patel Executive Engineer at Ex.101. 2.03. Thereafter, after appreciating the evidences on record, documentary as well as oral and more particularly considering the terms of the contract / work order in which as such there was no provision for price escalation and it was found that the defendant was not responsible for any price rise etc. and/or in any manner responsible for delay and even the raw material like cement etc. was supplied to the plaintiff as and when required and in advance, the learned Judge held the issue No.2 in negative and consequently also held the issue No.3 in negative and consequently has dismissed the suit. 2.04. Being aggrieved by and dissatisfied with the impugned judgement and decree passed by the learned Judge, City Civil Court, Ahmedabad in dismissing the suit, the appellant original plaintiff has preferred the present First Appeal. 2.05. Mr.Sukhwani, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned Judge has materially erred in dismissing the suit and not decreeing the suit. It is submitted that as such the learned Judge has not appreciated the evidences on record. It is submitted that as such the learned trial court has failed to appreciate that the plaintiff had not delayed the completion of the work and as such Schedule -A material like cement etc. was not supplied to the plaintiff timely and consequently there was delay in completion of the work and in the meantime, there was price rise / price escalation and therefore, the plaintiff was entitled to price escalation. It is further submitted that as such the learned trial court has misread the deposition of the plaintiff at Ex.23. 2.06. Mr.Sukhwani, learned advocate appearing on behalf of the appellant has further submitted that in any case when the delay in completion of the work was not attributed to the plaintiff, the learned trial court ought to have decreed the suit. It is submitted that as such the learned trial court misinterpreted and misread various clauses of the agreement / tender agreement / work order. It is further submitted by Mr.Sukhwani, learned advocate appearing on behalf of the appellant - original plaintiff that it has come on record that even other contractors left the work without completing the work and it was the plaintiff who continued the work on the assurance given by the officers of the defendant that his request for compensation for price escalation will be considered at appropriate time. It is submitted that the learned trial court has not properly appreciated the aforesaid facts while considering the prayer prayed for in the suit. By making above submissions, it is requested to allow the First Appeal and consequently decree the suit.
(3.) PRESENT appeal is opposed by Ms.Renu Singh, learned advocate appearing on behalf of Mr.Y.N. Ravani, learned advocate appearing on behalf of the respondent original defendant. It is submitted that on appreciation of evidence and more particularly when admittedly in tender agreement and work order there was no clause for price escalation and when the plaintiff had specifically admitted that the delay incompletion of the work and/or even price rise cannot be attributed to the defendant, the learned judge has rightly dismissed the suit. It is submitted that the impugned Judgement and Order passed by the learned trial court dismissing the suit is on appreciation of evidence, documentary as well as oral which is not required to be interfered with by this Court. By making above submissions it is requested to dismiss the present appeal. Heard the learned advocates appearing on behalf of the respective parties at length and perused the impugned Judgement and Order passed by the learned trial court and appreciated the entire evidence on record documentary as well as oral. 4.01. At the outset, it is required to be noted that the plaintiff instituted the suit for recovery of Rs.34,26,000/ - on the ground of price escalation increasing the rate for work of construction and interest on the said amount. However, it has come on record and it is an admitted position that in the tender agreement as well as work order, there was no provision for price escalation. In the evidence it has come on record and even it was admitted by the plaintiff that the delay in completion of the work could not be attributed to the defendant. The witness examined on behalf of the plaintiff has categorically admitted that there is no clause in the tender agreement / work order with respect to price escalation. In the evidence on record, it has come on record that as such Schedule -A items like cement etc. were supplied to the plaintiff timely, which is established by stock register maintained by the parties and signed by the plaintiff. It has also come on record and even the plaintiff has specifically admitted that it was the plaintiff who could not complete the work due to price rise in view of the budget declared by the Central Government and that the defendant is not at all responsible for delay and/or the delay in completion of the work and/or even non -supply of the Schedule -A Items. Considering the facts and circumstances of the case when the learned trial court has dismissed the suit, it cannot be said that the learned trial court has committed any error and/or the findings given by the learned trial court are perverse and/or contrary to the evidence on record. 4.02. It is an admitted position that as per the terms of the contract / work order, the plaintiff was required to complete the work within a period of one year from 1/3/1979 and the plaintiff completed the work after approximately six years i.e. on 31/3/1985 and even final bill was paid to the plaintiff on 24/12/1987 and the suit came to be instituted in the year 1990 i.e. on 3/7/1990 4.03. It is required to be noted and it has come on record that the defendant was not guilty of short supply of cement and steel. It has also come on record that number of notices were given to the plaintiff for delay in work / slow work and it was the plaintiff who submitted that due to financial difficulties faced by him, he could not complete the work in time and there was delay in completion of the work. Considering the facts and circumstances of the case, the learned Judge has rightly dismissed the suit, which is not required to be interfered with by this Court.;


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