Hiranmay Bhattacharyya, J. - (1.) The plaintiff in a suit for recovery of money has preferred the instant appeal challenging the judgement and decree dated December 23, 2015 passed by the learned Civil Judge (Senior Division), 3rd Court, Alipore in Money Suit No. 5 of 2004.
(2.) The appellant herein is an enlisted contractor of the Board of Trustees for the Port of Calcutta (hereinafter for the sake of brevity referred to as "Calcutta Port Trust"). The Calcutta Port Trust issued a Notice Inviting Tender dated June 12, 1991 for the work of thorough repairs of the existing office building at Falta. The plaintiff/appellant herein submitted his quotation for the said tender which was accepted by the defendant/respondent herein by a letter dated October 8, 1991. By the said letter, the plaintiff was directed to complete the settled work within a period of 16 weeks from October 8, 1991 with an additional 10 days for preliminary work. During the progress of the work, the defendant made various alterations to the original work allotted to the plaintiff and the plaintiff was also directed to undertake extra works not included in the tender. The plaintiff accordingly executed the extra works as per the verbal order of the Executive Engineer of the Calcutta Port Trust. The time for completion of the work was extended from time to time and the plaintiff ultimately completed the work by June 22, 1992. After completion of the work, the plaintiff repeatedly requested the Calcutta Port Trust to take measurement of the work done by the plaintiff, but in-spite of such repeated requests, the defendant did not perform their obligation to take measurement of the work done by the plaintiff. The defendant recorded the measurement of the works included in the Bill of Quantities partially but omitted to record the measurement of the extra work done by the plaintiff. The plaintiff submitted a bill on the basis of measurement done by him in presence of the officials of the defendant and requested the defendant to verify the same upon due notice to the plaintiff but the defendant did not measure the works done by the plaintiff. On October 28, 1993 the defendant made a part payment of a nominal amount and in-spite of repeated requests made by the plaintiff, the defendant failed to pay the balance sum. The plaintiff further stated that he suffered loss and damage at the rate of Rs. 1,500/- per month. Thus, the plaintiff prayed for a decree for recovery of a sum of Rs. 1,44,459.62/- on account of the balance sum due to the plaintiff. He further prayed for damages amounting to Rs. 52,500/- in addition thereto damages at the rate of Rs. 1,500/- per month till the passing of the decree was also prayed for. The plaintiff further prayed for awarding interest at the rate of 12% per annum along with other consequential reliefs.
(3.) The defendant after entering appearance in the said suit contested the same by filing a written statement denying the material allegations contained in the plaint. The defendant also filed an additional written statement. The defendant took the usual defences available in a Money Suit and in addition thereto, the specific defence taken therein is that the progress of the work done by the plaintiff was not satisfactory which was communicated to the plaintiff by a letter dated 28.12.1991 issued by the defendant. It was the further case of the defendant that the plaintiff did not complete the work as per the tender and as such he is not entitled to get any dues from the Calcutta Port Trust. The plaintiff was asked to carry out few extra works for successful completion of the job as per the general condition of the contract. The plaintiff was requested on many occasions to complete the balance work as mentioned in the tender appearing at item Nos. 6,12, 24, 25, 31, 37 and 42. The defendant made payment to the plaintiff on the basis of the measurement of the work carried by the plaintiff up to April 30, 1992, when the plaintiff abandoned the site. The bills submitted by the plaintiff was exhorbitant and baseless, which does not tally with the actual measurement. The plaintiff accepted the measurement recorded in the Measurement Book by putting his signature thereon. The defendant, thus, prayed for dismissal of the suit.;