(1.)This is a defendant's appeal from the judgment and decree of the learned Additional District Judge, Ganganagar dated February 7, 1972 whereby the plaintiff's suit for the recovery of a sum of Rs. 29153 18 was decreed with pendente lite and future interest at the rate of Rupees 6 per cent per annum.
(2.)As per averments made in the plaint, the plaintiff is a registered partnership firm. An agreement was made between the parties whereunder the plaintiff was to carry out the excavation work from R.D. 210 to R.D. 212-1/2 in Rajasthan Canal at the rate of Rs. 39.35 per thousand cubic feet. The agreement was later on reduced into writing on March 5, 1965 which is Ex. A.38. The work was to be completed within 12 months from the date the plaintiff was directed to commence it. The plaintiff was directed by the Engineer Incharge to commence the work on March 9, 1965. Thus, ire work was to be completed on or before March 9, 1966. Subsequently, the Engineer Incharge extended this date of completion from March 9, 1966 to December 15, 1966. The plaintiff excavated 11,000,00 cubic feet of earth upto October 13, 1966 and only 20,0000 cubic feet of earth was to be excavated to complete the entire work under the contract All of a sudden, on February 13, 1966, the Executive Engineer deployed departmental machinery to clear the bed of pilot channel. On February 1966, the plaintiff was carrying on the work with full strength and had deployed 50 camels, carts, 5 donkeys, 100 basket-labourers and many other skilled and unskilled labourers. Had he been allowed to clear and excavate the bed of pilot chancel, he would have completed it long before March 8, 1966 it was alleged that the Executive Engineer deployed the departmental machinery to clear the bed of pilot channel without any information or prior notice to the plaintiff This resulted in huge financial loss to the plaintiff. When the plaintiff submitted the final bill for Rs. 56,9.6.50 it wait not paid to him by the Executive Engineer on the ground that the department had to spend Rs. 55,172,50 in clearing the bed and excavation of the pilot channel. The grievance of the plaintiff was that the aforesaid amount was wrongly deducted from his final bill. At the most, the defendant was entitled to deduct a sum of Rs. 26,590.74 which he would have got for the work done by the department. The deduction Rs. 30,325.74 was wholly wrong and unreasonable. The plaintiff served a notice on the defendant asking for the payment of the aforesaid amount of Rs. 30325.74 But the attempt proved abortive. The plaintiff, therefore, instituted a suit for the recovery of Rs. 312355.50 (Rs. 30325.74 as principal and the rest as interest) against the defendant in the Court of the District Judge, Ganganagar. The suit came for trial before the learned Additional District Judge, Ganganagar. The suit was contested by the defendant. The agreement, the rate and time of the agreement as alleged by the plaintiff were admitted but the other material averments were denied., It was, however, admitted that the date of completing the work was extended upto December 15, 1966 on the plaintiff as he could not complete the work withing the stipulated time. It was averred that the speed at which the plaintiff was carrying on the work was too slow to complete the work within the extended time (December 15, 1966). The plaintiff was informed again and again to employ more employees and gear up the work. But that brought no effective result. On December 12, 1965, the plaintiff was directed the excavate the bed of the pilot channel in 20 feet width. The plaintiff paid no attention. Again, on December 18, 1965 the plaintiff was reminded to excavate the bed of the pilot channel but that too brought do results Ultimately on January 8, 1966, the plaintiff was in formed that since he had failed to perform be work of excavation of n e bed of the pilot channel this work was being tooled by trie department any deploying machines. He was also informed that the expenses incurred in carrying out this work and deploying the machines would be recovered from him The plaintiff even then did not commence the work of excavation of the bed of pilot channel. Per forte, the department tock up the aforesaid work in its hand on February 1, 1966 and deployed the machines, In carrying out this, work is excavation of the bed of the pilot chattel the department had to incur the expenses of Rs. 55172.50. The plaintiff was liable top y this amount to the defendant As such, the of re aid amount of Rs, 551 250 was deducted from the final bill of the plaintiff. The liability to pay interest was denied. Special costs were the claimed. On the pleading of the parties, the learned Judge raided three issues. One of them related to interest and the other to the special costs. The main issue was issue No. 1 which reads as under:
(1) whether the defendant has correctly deducted sum of Rs. 3032524 as per averments in para No. 9 of the written statement.
(3.)Both the parties adduced evidence. On the conclusion of trial, the learned Judge recorded his finding on issue No. 1 as under:
(i) the department had spent a sum of Rs. 55,172.50 in the excavation of the bed of the pilot channel:
(ii) the work of the excavation of the bed of the pilot channel was carried out by the defendant without any prior information or notice to the plaintiff and
(iii) the defendant could deduct only a sum of Rs. 26560.74 from the plaintiff's bill The deduction of Rs. 28581 64 was wrong and this amount could not be deducted from the plaintiff's final bill.