- (1.) This suit was originally instituted against the trustees for the improvement of Calcutta. Since then the name of "Calcutta Metropolitan Development Authority (C.M.D.A.)" has been substituted in place and stead of the original defendant which has superseded the original defendant, pursuant to a notification of 1989 issued by the Governor of West Bengal. In the suit the plaintiff has claimed a sum of Rs. 49,39,813.00 under different heads of claims. The plaintiff also originally claimed specific performance of the Contract No. 5269 dated 27th November, 1981 and for declaration that the purported termination of the contract is void. The plaintiff alternatively claimed an enquiry to ascertain the damages payable to the plaintiff. The plaintiff also claimed refund of security deposit and retention money.
(2.) Particulars of the different claims forming part of the said sum of Rupees 49,39,813/- are set out in Schedules B, C, D and E to the plaint. In Schedule 'B' of a sum of Rs. 28,87,716.00 has been claimed on account of the price for supply of silver sand relying on the terms of the contract and on the ground the price for supply of silver sand was not included in the contract and/or the schedule thereunder. In Schedule 'C' the plaintiff has claimed Rs. 75,000.00 for carrying out extra non-scheduled works as mentioned in paragraph 16 which includes Rs. 25,000.00 for sal bullah piling, pumping out of water from different tanks, removal of water hycinths from different tanks, removal of sludge from a tank which according to the plaintiff are extra carried out by the plaintiff at the request of the defendant. In Schedule 'D', the plaintiff is claiming a sum of Rs. 3,74,097.00 on account of scheduled items as pleaded in paragraph 17 of the plaint. These items include sand filling due to silt at the tank at 42, Bedadanga 2nd lane Rs. 2,89,296.00 earthwork in filling the said tank, Rs. 38,437.00, sand filling due to error of calculation on reduced level for tanks Rs. 21,120.00 and sand filling for pond at 2113, Bose Pukur Road Rs. 25,242.00, making a total of Rs. 3,74,097.00. These are works which according to the plaintiff were carried out by the plaintiff, but were not included and/or were not taken into account in the measurement book. The claim contained in Schedule 'E' to the plaint is on account of payment for idle labour and for lorry hire at the rate of Rs. 11,100.00 per day for a period of 145 days commencing from 5/06/1982. This claim in Schedule 'E' comes to a total of Rupees 16,09,000/-.
(3.) In short, the case of the plaintiff is that the work order was issued to the plaintiff for construction of road and sewerage for Rash Behari Avenue Connector within the city limit under the Scheme of Eastern Metropolitan Bypass on 30/04/1981. The tender was accepted at 23% above price schedule amounting to Rs. 40,16,019.00 p. The said sum of Rs. 40,16,019.00 was of course the estimate of the defendant, on account of the various items of works which included labour as well as supply items at specified rates for the estimated quantum of work and/or the estimated quantum of materials required. The work order was to be completed within 18 months commencing from the date of the said work order. The contract is such that the items of work on actual execution may be more or less, supplies of the items may also be more or less on actual execution and the price for each item of work and/or supply was to be calculated at the rate specified in the contract schedule with 23% above the schedule. The contract also provided that the defendant could require additional or extra item of work to be carried out by the plaintiff and in case such additional or extra item of works are to be carried out then the rates were to be fixed in the manner as specified in the contract.;