KANTA BHATNAGAR, J. - (1.) THIS appeal is directed against the judgment and decree dated August 12, 1969, passed by the learned District Judge, Bhilwara.
(2.) BRIEFLY stated the facts of the case giving rise to this appeal are as under : The State of Rajasthan through the Executive Engineer, PWD, at Udaipur and the Executive Engineer, PWD at Bhilwara invited tenders for the construction of several items of work for the metalled road from Mile No. 30 to 34 and 34 to 38. The plaintiff's tender being the lowest @ 11% above the 'G' Schedule was accepted at Bhilwara, with the prior sanction of the Chief Engineer, PWD on 11 -2 -1958. Contract agreements for the two works, Ex.A -5 and Ex.A -6 were duly executed from both the sides. On 1C -2 -1958 the work order was issued with a direction that the road construction was to be completed by 14 -2 -1959. This is the admitted position of the parties. The plaintiff has filed a suit for material supplied and work done amounting to Rs. 77,388/ - on the ground that due to lack of timely cooperation on the part of the defendant and not raking the payment at proper time plaintiff could not complete the work at the stipulated time. It was also the grievance of the plaintiff that the measurements entered in the measurement books were faulty and he has not been paid even according to those measurements. That, as there was no timely alignment plaintiff could not commence the work earlier than 1 -3 -1958. For the aforesaid reasons plaintiff was left with no alternative but to treat the contract as repudiated by the defendant and treating himself as free from any further liability after June, 1959. Plaintiffs contention in the plaint was that he was willing and ready to complete the work even thereafter, but the Department failed to arrive at terms and conditions agreeable to the plaintiff. The incomplete work was got completed through other agencies by the Department and plaintiff was made to make good the difference for that work from the one stipulated in his contract. A penalty was also imposed on the plaintiff at the rate of 10% on the entire amount of work, the amount being Rs. 6200/ - on the 1st Section and 5620/ - on the IInd Section. All this caused grievance to the plaintiff. He has advanced his claim for an amount of Rs. 39146/ - for the work at Miles 30 to 34 and an amount of Rs. 31242/ - for the work at Miles No. 34 to 38, the total being Rs. 77388/ - inclusive of Rs. 18876.50 by way of interest at the rate of 9% per annum and filed the suit in the court of District Judge, Bhilwara. The plaint contained the details of the claim on the various items of work and the supplies made for the same.
(3.) IN the written statement, defendant denied the allegations of delayed payment, incorrect measurements and non -cooperation by the Department. It was also stated that the payment has already been made for the entire work done by the plaintiff. That, as the plaintiff could not complete the work, the remaining work was not done from other agencies for which separate tenders were invited and accepted at the rate of 26% above 'G' Schedule rate. The difference of the rate sanctioned to the plaintiff was to be realised from him as per agreement. As the plaintiff did not complete the work despite notice served upon him in that regard, the penalty at the rate of 10% had been imposed as per agreement. The claim of the plaintiff was denied and it was prayed that the suit be dismissed with costs.;