BHARGAVA, J. - (1.) THIS is an appeal by the State of Rajasthan against the judgment and decree dated 31st October, 1961, of the Senior Civil Judge, Jaipur City No. 1, decreeing the plaintiff's claim for Rs. 16653/ -.
(2.) RESPONDENT Motilal was given a contract for constructing five miles of road on the Kothari, Karoli and Hindaum route on 29-12-53. The work was to be completed upto 20th March, 1955 RESPONDENT's case in the court below was that he had completed the work within the stipulated time and the work was carried out according to the directions of the officers in charge, that payment of eight running bills amounting to Rs. 93,816/- was made to him and though the final bill for Rs. 7116/- was prepared, its payment was not made. Similarly, the appellant with held payment of the amount of earnest money that is Rs. 1400/-and further sum of Rs. 8137/- which was deducted as security amount from his running bills. Thus he was entitled to recover Rs. 16-653/- from the appellant. The said amount was not paid in spite of several reminders. On the other hand, objections were raised about the quality of the material used and the workmanship, though these objections were not tenable because he collected the stone soling and ballast from one mile lead according to the terms of the contract and the material was also approved by the officers who were supervising the work. It was further alleged that he had used soft stone for soling, which was available within a lead of one mile. It was also alleged that soling was not done on some portions of the road because the surface was rocky and the officers supervising the work did not permit him to do so. As for the reasons the road gave way, it was explained in the plaint that it was due to the unexpected heavy traffic of trucks and carts with heavy loads which plied on the road and the Public Works Department in spite of this did not get the road painted by tarcoal. No culverts and cause ways were prepared for protecting the road from the rains. Thus it was alleged that there was no defect of material or workmanship in the construction of the road and it had given way on account of other reasons for which respondent could not be held responsible. Since his final bill had been prepared and the work had been fully checked up and approved, he was entitled to the suit amount. The suit was contested by the appellant and it was stated that the work was never done according to the directions of the officers nor was it done according to the agreement. It was stated that plaintiff was to use stone 6" thick of approved quality free from Kutcha stuff for soling purposes and similarly he was to use ballast l-1/2" gauge of approved quality free from Kutcha stuff and dust. However, he did not use the material of the above quality but used Kutcha stuff which was not approved. Soling material was not upto standard and consolidation work was also defective. The ballast was loosely packed and the work was of worthless quality and that is why the road gave way. It is stated that the specifications and the quality of the material to be used was an essential part of the agreement and since the plaintiff did not comply with the above terms of the agreement, he was not entitled to any sum under the contract. It is stated that even during the progress of the work after the inspection of the Superintending Engineer, it was brought to the notice of the plaintiff that the soling material and the ballast which he had stacked was soft and should be replaced. Validity of the notice under sec. 80 C. P. C. was also challenged. The learned Senior Civil Judge on the above pleadings framed the following issues: (1) Did the employees of the defendant prepare final bill of the plaintiff as alleged in para 5 of the plaint? (2) If finding on issue No. I is in favour of plaintiff, were there any defects in the work done by plaintiff as alleged by the defendant? (3) If there were any defects in the work done by the plaintiff, what amount is the defendant entitled to withhold? (4) Is the suit barred by time? (5) To what relief is the plaintiff entitled? In support of the issues, besides the documentary evidence, plaintiff examined three witnesses including himself and five witnesses were examined on behalf of the defendant. The learned Senior Civil Judge on a consideration of the evidence came to the finding that the final bill for Rs. 7116 was prepared and passed and it should thus be presumed that all formalities had been carried out. Consequently it was not open to the Government to say that the work was defective and the Government was bound by the bill for Rs. 7116/-, Issues Nos. 2 and 3 were also decided in favour of the plaintiff and the learned Judge based his conclusion broadly on these grounds. (1) that all the material before it was used by the respondent must have been approved by the Overseer and the Assistant Engineer and even if there were any defects as noticed by the Superintending (Engineer Shri D. N. Gupta, they must have also been removed because the respondent had been paid for his eight running bills. (2) that during the progress of work, no objection was raised that the material stacked at the site was Kutcha. (3) that the plaintiff's statement that soling was not done on some portions of the road because the officer in charge had verbally so directed, in the absence of any evidence in rebuttal deserved to be believed ). (4) that Girdharilal Overseer and M. M. Mathur, Assistant Engineer should have been produced as witnesses by the appellant and from their con-production adverse inference has to be drawn. (5) that the road had given way not because of defect of any material or workmanship but because heavy vehicles passed over it, it was not painted and that culverts and cause-ways had not been provided to protect the surface from floods and heavy rains. The learned Judge rejected the evidence of the Executive Engineers D. W. 2 and D. W. 4 on the ground that they had inspected the road after it was completed. He also rejected the evidence of Shri D,n. Gupta, D. W. 5 Superintending Engineer on the ground that the defects noticed by him must be presumed to have been removed because the respondent had been paid for the running bills, otherwise the Assistant Engineer and the Executive Engineer would not have passed the bills. Further there was no evidence on behalf of the defendant to show that the defects pointed out by Shri D. N. Gupta had not been removed. The learned Judge came to the conclusion that the contractor could not be made to suffer on the ground that he did not use the material which was contracted for. It would thus appear that the learned Judge attached too much importance to the fact that the Overseer and the Assistant Engineer did not raise objection about the defective quality of the material when the work was in progress. On the other hand, they allowed it to be used, measured it and passed the bills. Soling was also left out on some portions of the road because the plaintiff had been so directed by the Overseer and the Assistant Engineer and that the road had given way for reasons for which the plaintiff was not responsible. He has also held that because the final bill was prepared therefore the Government was bound by it. I am afraid, the conclusion reached by the learned Judge and the reasons give in support of it are not sound. The learned Judge while arriving at the decision has not kept in view the terms of the agreement which was made between the parties. He has also not considered the extent of authority of the Overseer and the Assistant Engineer in giving directions regarding alteration or variation of the work and the true effect of the payment of running bills to the plaintiff. The reasons given by the learned Judge for rejecting the evidence of D. Ws. 2, 3 and 5 also appear to be not sound. Plaintiff's tender for the construction of five miles road was accepted by the Chief Engineer and his acceptance was conveyed to him on 29 12 53 as alleged in para 1 of the plaint. It is provided in the Schedule that the plaintiff would collect 145000 cubit-feet of soling stone 6" thick of approved quality free from Kutcha stuff and 100000 cubit feet of stone ballast 1-1/2 gauge of approved quality free from Kutcha stuff and he was also allowed one mile lead to collect the said material. Shri D. N. Gupta D. W. 5 who was the then Superintending Engineer, Jaipur City Circle inspected the road on 12th March, 1954, and he found that the soling material was not according to specifications and was more like flag stones. He also did not find the ballast according to specifications. His inspection note is Ex. A-2 in which it is stated that the soling material was not to standard at several places and it was found to be like flagstones. Ballast in many of the stacks was found to be soft and flaky. Shri Gupta has proved this inspection report in his statement when he was examined on commission at Calcutta because by that time he had retired from service. At the time of inspection, he had directed the Assistant Engineer, to have the above material replaced and better material stacked even where payment had been made. Notice for these defects was given to the plaintiff and it appears to have been served upon one Ramswaroop who is plaintiff's own brother and who also used to supervise the work on his behalf. Plaintiff was asked about the signatures of Ramswaroop but he stated that the signatures did not appear to be that of Ramswaroop who was also present on the date when the plaintiff was being examined. He was not produced to deny this signature. It is not the plaintiff's case anywhere that he had replaced that material by some better material or that he had removed the defects which Shri D. N. Gupta had found in the material. It is surprising that the learned Senior Civil Judge has found that in the absence of any evidence to the contrary it would be presumed that the plaintiff had removed the defects of the material because they were used in the construction of the road without any objection by the Overseer and the Assistant Engineer and further that the plaintiff had been paid his eight running bills and that his final bill was also prepared. In the first instance, as said already, it is nowhere the plaintiff's case that he had removed the defects. Secondly, no certificate of approval was obtained by the plaintiff from officers who were supervising the construction of this road. The payment of the running bills does not debar the defendant from showing that the material was not according to the specifictions and that the work suffered from bad workmanship. Clause 7 of the agreement Ex. A-9 clearly provides: "but all such intermediate payments shall be regarded as payments by way of advance against the final payment only and not as payments for work actually done and completed, and shall not preclude the requiring of bad, unsound and imperfect or unskillful work to be removed and taken away and re-constructed, or re-erected or be considered as an admission of the due performance of the contract, or any part thereof in any respect, or the accruing of claim, nor shall it conclude, determine, or effect in any way the powers of the Engineer-in-charge under these conditions or any of them as to the final settlement and adjustment of the accounts or otherwise or in any other way vary or effect the contract. The final bill shall be submitted by the contractor within one month of the date fixed for completion of the work otherwise the Engineer-in-charge's certificate of the measurement and of the total amount payable for the work accordingly, shall be final and binding on all parties. " These interim payments of the running bills are made for the benefit of the contractor during the progress of the work but they are not conclusive in favour of either party in regard to the quality of the work or the materials. The learned Senior Civil Judge was, therefore, not right in giving too much weight to the fact that the plaintiff was paid for his eight running bills from which it should be inferred that no objection was raised with regard to the quality of the material by the Overseer or the Assistant Engineer. In regard to interim certificates, it is also stated in Hudson's Building Contracts, Eighth Edition by E. J. Rimmer and I. N. Duncan Wallace at page 260 - "provisions for interim or progress certificates are often inserted in building contracts for the benefit of the builder, to enable him to obtain payments on account during the progress of the work. As a rule the payments contemplated by such provisions only represent the approximate value (or a proportion of it} of the work done or materials delivered at the date of payment, and, in the absence of express provision, they are not conclusive or binding on either party, whether as an expression of satisfaction with the quality of the work or materials, or as a determination of its quality or price. Such certificates, therefore, are subject to readjustment upon final certificate, though they may be given binding effect as to the value of the work until the time for issue of the final certificate has arrived. " Not only this, the plaintiff in his reply dated 1st June, 1955, Ex. A-10 has admitted that the soling stone as well as the ballast was soft and the ballast was crushed to pieces due to heavy vehicular traffic. In his statement also, plaintiff has admitted that it was agreed that soling will have to be done with 6" thick pucca stone and not kutcha one. He stated that he had brought soling stone and ballast from Kothari quarries as he was verbally directed to do by Shri Murli Manohal, Assistant Engineer, and Girdharilal, Overseer. He has further stated that although this material was soft, but it was suitable for the construction of the road. He also admitted that a road constructed with such material was liable to give way due to heavy vehicular traffic. He has admitted that this road was constructed for the purpose of joining the main road with the quarries and that he knew that carts carrying stones would ply on this road. He stated that he had warned the Overseer, Assistant Engineer and the Executive Engineer that this kind of stone and ballast would not bear heavy traffic. But as he had shown the material to these officers, there was ho necessity of informing them in writing. He has admitted that under the contract he was to use stone free from kutcha stuff but according to him, soft material is not kutcha stuff. He has, however, admitted that generally blue stone is used for constructing roads but the stone which he had brought from the quarry was comparatively soft and is called sand stone. It would therefore, appear that the stone used for soling and ballast was soft and the plaintiff knew that it would not bear heavy vehicular traffic. He has, however, admitted that he knew that this road was to join the quarries with the main road and carts loaded with stones would] ply on it. It is. therefore, difficult to believe that the road which was built for joining with the quarries from where stones are transported was not likely to be used for heavy vehicular traffic. The plaintiff, therefore, cannot take this excuse that the road was not meant for heavy vehicular traffic and it gave way because of this fact. In the absence of any special term or direction in the contract as to the materials and the manner in which work is to be done there is always an implied warrantee that the article or thing shall be reasonably fit for the purpose for which it is to be used, and the work will be carried out in a workmanship like manner Plaintiff's version in Ex. A-10 that he had brought to the notice of the authorities that the quarry provided for collecting ballast etc. produced very soft stuff which may not last longer, cannot be accepted because in the agreement, no quarry has been specified. Under the contract the plaintiff was required to use stone and ballast which was to be free from kutcha stuff. It is true that under the contract only one mile lead was allowed to the plaintiff for collection of stone and ballast. But if no stone or ballast free from kutcha stuff was available within one mile, the plaintiff ought to have drawn the attention of the engineer incharge in writing to that effect so that the lead might have been increased or some other place where hard stone and ballast was available could have been pointed out to him. Plaintiff's contention that the material collected by him was approved by Gordhanlal Overseer and Sri M. M. . Mathur, Assistant Engineer, does not carry any meaning. Under the contract it is the Chief Engineer or other duly authorised engineer that is the engineer in charge whose approval of the material could have been binding upon the appellant. But no such approval is alleged to have been obtained by the plaintiff in this case. Even if the final bill was prepared and had been passed by the Executive Engineer, it could not stop the appellant from withholding the payment of the amount of the bill. The plaintiff did not obtain any final certificate as to the completion of the work from the Chief Engineer or other duly authorised engineer. Clause 14 of the agreement clearly lays down that if it appears to the Engineer-in-charge or his subordinate in charge of the work that any work has been executed with unsound imperfect or unskilful workmanship or with materials of any inferior description, or that any materials or articles provided by him for the execution of the work are unsound or of a quality inferior to that contracted for, otherwise not in accordance with the contract, the contractor shall, on demand in writing from the Engineer in charge, specify the work, materials or articles complained of, notwithstanding that the same may have been inadvertently passed, certified and paid for, to rectify or remove and reconstruct the work so specified in whole or in part, as the case may require. It would be abundantly clear from the above that in spite of the work having been passed, certified and paid for, it was still open to the Engineer in charge to call upon the contractor to remove the defects, replace the materials and reconstruct the work. The learned Senior Civil Judge overlooked the terms of the contract between the parties and was, therefore, not right in holding that after the final bill had been passed, the appellant was bound to pay the amount of the bill to the plaintiff.
(3.) IN Davis vs. Hedges (1), it was held - "in an action for damages for the non-performance and improper performance of certain work which the plaintiff had employed the defendant to do, the defence set up was that the defendant had sued the plaintiff for the price of the work alleged to have been improperly done, and the plaintiff had settled by paying the whole amount then sued for ; and that, as the plaintiff might have given the non-performance and the defective performance complained of in evidence in reduction of damages, the plaintiff was precluded from bringing a cross action for them: Held, that though the plaintiff might have used the causes of action for which he sued in reduction of the claim in the former action, yet he was not bound to do so, but might maintain a separate action for them. My finding, therefore, is that respondent did not use soling stone and ballast as specified in the agreement and was liable to replace it in spite of the fact that his eight running bills had been paid for and the final bill was prepared. Further, the appellant was not estopped from raising this objection even though the Overseer and the Assistant Engineer might have allowed the respondent to use such material. The next question is as to whether the road suffered from bad workman-ship. While the work was in progress, respondent was informed by the Overseer on the 29th October, 1954, that the consolidation of soling between 3rd and 4th mile of the road was bad as water had not been poured in sufficient quantity and that he would not be paid for that bad work After the work had been completed, the Executive Engineer Shri Durga Prashad D. W. 4 inspected it on 16th May, 1955, and he found that three miles of road from Kotri side had badly given way and it appeared that the work was hopelessly done. Shri Durga Prashad has deposed that when he inspected the road on 16th May, 1955, he found that it had given way and the material used in it was bad. The soling stone and the ballast used was kutcha. There-upon respondent was served with a notice on 23rd May, 1955, Ex. A-6 which bears his signature. The witness has stated that even prior to Ex. A-6, a notice was given to the respondent on 12th November, 1954. Ex. A-7 calling upon the respondent to remove the defects in mile number 3 and 4 and also informing him that the defective work will not be measured. The witness has stated that the road gave way because its soling stone and ballast was kutcha. He has also stated that inspite of the adverse report of the Overseer against the respondent, payment of the running bills was made because it was in the nature of an advance payment. It would appear from the statement of this witness that the road had given way within two months of its completion because the soling stone and the ballast which the respondent had used was kutcha. It also appears from Ex. A-6 that the ballast was loosely consolidated and so the respondent was also called upon to re-consolidate the remaining miles of the road to pack up the ballast properly. This action was taken against the respondent under clause 14 of the agreement. Again on 29th March, 1956, notice was given to the respondent vide Ex. A-3 about the rejection of the work from to 3 miles and he was asked to re-consolidate the surface after properly scraping it and adding new material to compensate for heavy pot holes and to re-consolidate the ballast on other miles. Since respondent in his reply Ex. A-10 had justified his action of using soft soling stones and ballast as also not laying any soling stones on some portions of the road between 0 to 3 miles he was asked vide Ex. A-4 dated 26th April, 1956, to produce the correspondence regarding the change of quarry and the authority for disallowing the soling in some portions of the road and to use soft material. Reminder was again sent on 11th September 1967 vide Ex. A 5 at the same time informing the respondent that the work was being undertaken departmentally at his cost and risk debitable to the amount of finall bill and the security deposit of the work. But the respondent was unable to satisfy the engineer in charge regarding all the above mentioned defects. It is admitted by the respondent both in Ex, A-10 and in his statement in the court that on some portions of the road where the surface was recky between 0 to 3 miles no soling was laid, the reason being that he was forbidden to do so by the Overseer and the Assistant Engineer. But no written order in this behalf had been produced. It is no doubt true that Shri Gordhanlal the Overseer and Shri M M. Mathur, Assistant Engineer, who were supervising the work have not been produced as witnesses by the appellant, even though they were material witnesses in the case. But even if it be assumed that no objection was taken by them regarding the use of soft material in the road and they further asked the respondent not to lay down soling stone at places where the surface was rocky, it would not afford any justification to the respondent for the use of defective material and bad workmanship. In Ex. A10, respondent has admitted that "at places where low level rocks and Khan portions already existed, soling stone was not allowed to be collected and packed, the roadway passing through hilly rocky track- The deletion also affected the soundness of the formation to some extent, since the existing natural rocky forms were not in such a position well in order to function as soling base. " It is further admitted that respondent had full scope to pack up soling in those portions too, but he was not allowed to do so. He has also admitted that as a matter of fact, the road surface had not given way, but the ballast was smashed to small pieces causing wheel tracks due to heavy traffic. In his statement, the respondent has admitted that under the contract, soling stone was to be laid on every portion of the road. Shri D. P. Rastogi D W. 2 has also stated that [soling was to be done on every portion of the road, Shri D. P. Rastogi who had taken over as Executive Engineer in November, 1955, and who also inspected the Work on the road on 25th November, 1955, has stated that the surface of the road for the first three miles had been spoiled and at number of places pits had appeared on the road. In the opinion of the witness, the reason for it was that consolidation was not properly done and the material used was also not proper and was kutcha. The learned Senior Civil Judge has rejected the evidence of D. W. 2 and D. W. 4 because they had inspected the road after the work had been completed ; but both these witnesses have described the causes which led to road giving way so soon after its completion. From their inspection of the road they could very well say what quality of the material was used therein as also about the workmanship. The fact that they had inspected the work after its completion does not seem to be of any importance so far as their opinion about material and workmanship is concerned. As pointed out earlier, the defect in the material as well as in the workmanship was pointed out to the respondent even during the course of the work and yet he did not take proper steps to rectify it with the result that the road gave way soon after its completion. It is to be remembered that the road had given way in May, 1955, that is before the rains had set in. It is, therefore, not open to road was not painted and no provision was made for construc-road gave way because of the heavy rains. Learned Counsel for the respondent urged that even though no soling was done on some portions of the road, no objection was taken on behalf of the appellant in that connection either during the progress of the work or even subsequently. It is also urged that even in the written statement, this objection has not been raised on behalf of the appellant. This argument has however no force. In the first instance, plaintiff himself has admitted in the plaint that one of the cause of the road having given way was that no soling was done on portions of the road where the surface was rocky. Besides this, in the written statement it has been generally stated in reply to para 4 of the plaint that besides other defects, the work done by the plaintiff was of hopelessly bad quality and the whole road gave way. The above plea, therefore, applies to ail kinds of bad workmanship including the non-laying of soling on some portions of the road. Even in Ex. A-4 dated 26th April, 1956 respondent was asked to show the authority which disallowed the soling in some parts of the road, which means Mat objection in this connection was taken on behalf of the appellant even before the filing of the suit. An estimate to repair and reconstruct the road between 0 to 3 miles was got prepared and it was reported vide Ex. A-l that a sum of Rs 20000/- was required to be spent on it. This estimate was prepared by Moha-med Amin D W. 1 who has testified to the correctness of the estimate. So this very fact that no soling was done on some portions of the road and due to which it gave way is ample proof of the fact that the work suffered from bad workmanship and under clause 14 of the agreement, action could be taken against the respondent. Since the respondent failed to remove the defects and reconstruct the road as desired by the Public Works Department, the appellant was entitled to withhold the payment of the final bill as also to forfeit the security amount. The learned Senior Civil Judge was, therefore, not right in decreeing the plaintiff's suit. The appeal is, therefore, accepted, the judgment and decree of the lower court is set aside and the plaintiff's suit is dismissed. But in view of the fact that the Overseer and the Assistant Engineer had shown negligence in allowing the respondent to use defective material, parties shall bear their own costs of both the courts. . ;