- (1.) This appeal has been preferred against the judgment and decree dated 14th May, 2010 passed by Smt. Shampa Dutt (Paul), Learned Civil Judge, (Senior Division) at Bankura in Money Suit No.7 of 2004.
(2.) A brief review of the relevant facts would suffice. The appellant is an enlisted Class-I Contractor under Bankura Zilla Parishad. Pursuant to a Notice Inviting Tender No.15 of 2001-2002 issued by the said Zilla Parishad, the appellant submitted a sealed tender and upon competing with the other participants, he emerged to be successful and he was accordingly issued work order on 22nd March, 2012 pertaining to the work of re-excavation of Keliapathar Barabundh at Mouza Keliapathar, Bhularkhap, J.L. Nos. 179, 149, Plot No.221, 226, P.S. Indpur and Construction of Pucca Sech Nala from Barabundh to Irrigation land under augmenting of traditional Water Sources under 11th Finance Commission (hereinafter referred to as the tender work). As per direction contained in the work order the appellant executed an agreement and started the work. On 27th March, 2002, the site of the project work was inspected by the respondent no.10 in presence of the respondent no.9 and after measurement of the pre-work-level, the said respondents gave the "Lay Out" for re-excavation and at the said juncture it came to the notice of the said respondents that a very large heap of earth was existing with the pre-level section of the work and it was found that the work under the said project cannot be successfully done unless and until the said heap of earth is removed/excavated therefrom and accordingly the said respondents instructed the appellant to remove the said heap of earth and to lay the same upon the existing embankment of the Bundh and to carry the remaining quantum of excavated earth and to dump the same at a place to be arranged with the help of the villagers and the members of the Beneficiary Committee. Pursuant to such verbal instructions, the appellant undertook such extra work. Thereafter, on 21st August, 2002 the said respondent no.10 proposed to draw up a work done estimate pertaining to the extra work and such proposal was approved by the respondent nos.8 and 4 on 31st August, 2002 and 10th September, 2002 respectively and accordingly the said respondent no.10 prepared a work done estimate pertaining to the extra work and upon perusal of the same the respondent nos.8 and 2 observed that the said work done estimate may be approved. In spite of such approval, no disbursement was made. By a letter dated 20th June, 2003 the appellant submitted the final bill pertaining to the excess work done and left out in the first R.A. Bill. The said final bill was of an amount of Rs.54,25,892/-. In reply thereto, the respondent no.8 issued a letter to the appellant on 26th June, 2003 observing that the extra work executed by the appellant was beyond the terms of the agreement and that as such no payment can be made. Aggrieved thereby, the petitioner preferred a Money Suit after issuing a notice under Section 80 of the Code of Civil Procedure.
(3.) The Zilla Parishad contested the suit by filing a written statement stating inter that the suit suffers from non-impleadment of necessary party and that the monetary claim of the appellant is beyond the terms of the contract and in the backdrop of the undisputed fact that the appellant had done the extra work only on the basis of a verbal permission, the suit itself is not maintainable. According to the respondents there was no written order in support of the extra work allegedly done by the appellant. It was also averred that the construction of the Sech Nala was cancelled by the Zilla Parishad and that as such the appellant is not entitled to the amount as claimed. The work under the tender was also not completed by the appellant and as such no completion certificate was issued. Through the said written statement the respondents also lodged a counter claim towards forfeiture of the security deposit since the appellant had acted in violation of the agreement by not completing the work as per the said agreement.;