Ramendra Mohan Datta, J. - (1.) This is a suit for the recovery of a sum of Rs. 10,977/- which has been deducted by the then Province of Bihar from the plaintiff's bill in accordance with the conditions of a tender for the supply of stones, stone metals and gravel to the defendant for the purpose of repair and construction of certain portions of Grant Trunk Road. The tender was accepted by the Public Works Department of the then province of Bihar.
(2.) The said tender, inter alia, provided the following clauses in the conditions of contract: "2. The contractor is to deliver the materials on or before the dates mentioned in the Tender, failing which he shall be subject to pay or allow one per cent. On the total amount of the contract for every day not exceeding ten days that he shall exceed his time as liquidated damages. 3. In every case in which the payment or allowances mentioned in Clause 2 shall have been incurred for ten consecutive days, the Executive Engineer shall have power either to annul the contract altogether, or to have the supply completed without further notice at the contractor's risk and expense as he may deem best suited to the interests of Government, and the contractor shall have no claim to compensation for any loss that he may incur in any way. 4. If the contractor shall be hindered in the supply of the materials so as to necessitate an extension of the time allowed in this Tender, he shall apply in writing to the Executive Engineer, who shall grant it in writing if reasonable grounds be shown for it and without such written authority of the Executive Engineer, the Contractor shall not claim exemption from the damages leviable under Clause 2."
(3.) The materials were to be delivered on or before June 30, 1946 under the said contract. Sometime prior to the expiry of the said date of delivery the plaintiff applied in writing for extension on the ground that there were hindrances in the supply of the materials because of want of transport. The plaintiff states that the defendant allowed the time for delivery to expire but did not grant any extension in writing. The defendant by its conduct induced the plaintiff to effect delivery of the materials on the assurance of extending the time for such delivery. By a letter dated November 21, 1944 the plaintiff was informed that the Additional Chief Engineer had refused to grant the plaintiff any extension of time. By another letter dated November 25, 1944 the previous letter dated November 21. 1944 was cancelled. The plaintiff continued performance of the agreement on the basis that the time for the completion of the works thereunder had not expired and the defendant accepted the benefit of such performance of the agreement by the plaintiff.;