MODI, J. - (1.) THESE two appeals are directed against the two separate judgments and decrees of the District Judge, Kotah, dated 31-5-69. As common questions of law and facts are involved in these appeals, they are being disposed of together.
(2.) THE plaintiff-respondent instituted two suits in the Court of the District Judge, Kotah, suit No. 22 of 1963 on 16-11-63 and suit No. 8 of 1964 on 31-1-64. The facts relating to suit No. 22 of 1963 are as follows. The Executive Engineer, Right Main Canal, Division I, Chambal Project, Kotah, invited tenders for constructing a drainage syphon at RD 87000 on Right Main Canal. The plaintiff submitted his tender at 9. 5 per cent above the estimated amount mentioned in G Schedule attached to the tender form. The Chief Engineer, Irrigation, Rajasthan, accepted the plaintiff's tender on 18-5-56 and an agreement was executed between the parties which was signed by the plaintiff on the one hand and the Chief Engineer, Irrigation, on the other. Before the tender was formally accepted by the Chief Engineer, the plaintiff was asked to commence work and he actually commenced it on 20-4-56. The work was completed on 15-7-58. The plaintiff was paid for the work done by him as per rates mentioned in the tender and accepted by the Chief Engineer. He however claimed that as during the course of the progress of the work the quantities of various items of work were increased and certain additional new items of work were added, he was entitled to 40 percent above the schedule of rates of the Chambal Project. This claim of the plaintiff was rejected by the Chief Engineer vide his letter dated 30-11-61. The plaintiff therefore filed the present suit for the recovery of Rs. 7804/- being the difference between the tender-rates and the rates 40 per cent above the tender or schedule of rates on the following increased and additional quantities of items of work carried out by him : (1) Earth work including lifts of the value of Rs. 3228/- (2) Concrete work of the value of Rs. 2481/- (3) Masonry work of the value of Rs. 11779/- (4) Pointing work of the value of Rs. 633/- (5) Plaster work of the value of Rs. 62/- (6) Kharanja work of the value of Rs. 1326/- Total Rs. 19509/- He claimed this amount of Rs. 7804/- on various grounds. These grounds are mentioned in paras Nos. 3, 4 and 5 of the plaint which run as under : "3. During the course of the progress of the work the scope of work was altered so as to make major changes in the work. The number of syphon pipes was increased, their thickness was increased, steel content of pipes and RCC was increased and all round quantities of different items of work were also increased. Certain all together new items of work like kharanja, curtain wall, wing wall, etc. were added for which tenders had not been invited. As a consequence of these changes, the cost of the work increased from the tender amount of Rs. 1,10,882/- to Rs. 1,47,796/ -. 4. When the plaintiff was informed about the increased quantities and later on about new items of work to be done and was asked by the Assistant Engineer vide his letter dated 21-11-56 to quote his rates, the plaintiff replied on 22. 11. 56 that he would execute the increased quantities at 40 per cent above the schedule of rates. The rates so quoted by the plaintiff were neither objected nor rejected forthright. The plaintiff was rather asked to proceed with the work. The defendant in this way tacitly accepted the rate quoted by the plaintiff The Engineers gave verbal assurances to the plaintiff that he will be paid according to the rate quoted by him. That the rate quoted by him was even otherwise fair and reasonable in the changed circumstances. Due to increased quantities and new items of work, the completion date was extended and the work was prolonged over a much longer period. The cost of labour and material in the meantime rose considerably higher and the Chambal Project authorities too revised the old schedule of rates during this interval. The new schedule of rate also provided rates which were 40 per cent more than the old schedule of rates in respect of items on which the plaintiff claimed 40 per cent excess over the old schedule of rates. The increased quantities of new items of work were executed during the currency of the new schedule of rates. " Besides the above amount of Rs. 7804/-, the plaintiff further claimed a yum of Rs. 5020 which according to him was wrongly deducted at the time of the preparation of the final bill on 16. 11. 60. The details of deductions given by the plaintiff are as follows : (1) Rs. 941/- in respect of earth work (2) Rs. 3385/- in respect of iron and RCC work (3) Rs. 694/- in respect of sales-tax on steel. Rs. 5020/- Total The plaintiff alleged that the above deductions were irregular, unwarranted and illegal and therefore he claimed refund of the sum of Rs. 5020/ -. 5. The plaintiff gave notice to the defendant under sec. 80 G. P. G. for the recovery of Rs. 7804/- and Rs. 5020/- total Rs. 12,824/- with interest at the rate of 12 percent per annum. After expiry of two months from the date of the notice, the plaintiff filed the suit for the recovery of Rs. 12,824/- as principal and Rs. 1850/- by way of interest at the rate of six percent per annum total Rs. 14,674/ -. Suit No. 3 of 1964 related to the construction of drainage syphon at RD 54733 on Right Main Canal. The plaintiff's tender relating to the above work was accepted on the same date, that is, 13-5-56. The plaintiff commenced this work on 10-10-56. The plaintiff completed it on 9-7-59. The plaintiff was paid for all the items of work carried out by him in accordance with the tender-rates. Bur he claimed 40 percent above the schedule of rates in respect of the following increased and new items of work carried out by him : 1. (a) Earth work of the value of Rs. 7016/- (b) Extra lifts for the above work of the value of Rs. 1193/- 2. Concrete work of the value of Rs. 5578/- 3. Coarse stone masonry work of the value of Rs. 13140/- 4. Pointing work of the value of Rs. 421. 44 5. Plaster work of the value of Rs. 53. 76 6. Kharanja work of the value of Rs. 1026. 26 Total Rs. 29,428. 47 P. Out of the total amount of Rs. 29-428. 47 P. , the plaintiff deducted Rs. 2218,27 P. as excess payment made to him and claimed Rs. 10,844,08 P. at 40 percent above the the tender-rates on Rs. 27,210. 20 P. The grounds on which he claimed the above amount are similar to those which he put-forward in suit No. 22 of 1963. The plaintiff further claimed a sum of Rs. 5925. 58 P. which, according to him, were wrongly deducted at the time of the preparation of the final bill. The details of deductions are as follows : (1) Rs. 2850. 50 Deducted on account of reducing the rate of RCC work from Rs. 4/-per cft. to Rs. 3. 75 P. per cft. (2) Rs. 1560. 00 Deducted on account of reduction of rate in RCC from Rs. 5. 50 P. per cft. to Rs. 5. 27 P. per cft. (3) Rs. 600. 00 Deducted on account of sales-tax on steel. (4) Rs. 915. 08 Deducted from security deposit Rs. 5925. 58 Total The plaintiff gave a notice to the defendant on 30-7-62 for the recovery of Rs. 10,844. 08 P. and claimed interest at the rate of 12 percent per annum. After the expiry of two months from the date of the notice the plaintiff filed the suit for the recovery of Rs. 16,899. 66 P. as principal (the correct figure is Rs. 16,769. 68 P.) and Rs. 1400. 34 P. as interest at the rate of six percent per annum total Rs. 18,300/ -. The defendant in both the suits admitted having accepted the tenders of the plaintiff for the construction of drainage syphons at RD 54733. It further admitted that due to alterations in the design, the plaintiff had to carry out increased quantities of work with the result that the cost of the work as estimated in G Schedule in respect of both the works was considerably increased. The defendant however pleaded that the plaintiff was bound to carry out additional items of work at the rates mentioned in the tender under clause 13 of the agreement entered into between the parties. The defendant denied that its engineers accepted the rate quoted by the plaintiff or that they gave assurance to the plaintiff that he would be paid for the increased items of work at the fates 40 percent above the schedule of rates. It was also pleaded in the alternative that the defendant was not bound by any verbal assurance given by its engineers. The defendant further pleaded that the plaintiff's claim at the rate of 40 percent above the schedule of rates was rejected by the Chief Engineer and that his decision was final. The defendant in both the suits denied that the plaintiff was entitled to claim 40 percent above the schedule of rates for the increased or additional items of work carried out by him. As regards deductions, the defendant admitted having deducted from the final bill various amounts mentioned by the plaintiff in both the suits, but pleaded that all those deductions were correctly made and were wholly justified. The defendant also denied its liability to pay interest. In the end, the defendant raised the plea of limitation and pleaded that the suits were barred by limitation. On the pleading of the parties, the trial court framed issues in both the suits. Later on, an application was made by the plaintiff that the suit No. 22 of 1963 be consolidated with suit No. 3 of 1964. The District Judge allowed the application and ordered on 30-11-65 that both the suits be consolidated. In pursuance of this order, evidence in both the suits was recorded in suit No. 22 of 1963. At the time of the final decision, the learned District Judge thought it more convenient to dispose of both the suits by separate judgments as the items in dispute in both the suits were different. He held in both the suits that the plaintiff was entitled to claim rates 40 percent above the schedule of rates in respect of increased and additional items of work carried out by him. He further held that the various deductions made from the final bill were unjustified and that the plaintiff was entitled to claim interest at the rate of six percent per annum. He accordingly decreed both the suits in toto. In suit No. 22 of 1963 he passed a decree for the entire amount claimed by the plaintiff. In suit No. 3 of 1964 he passed a decree for Rs. 17,384. 92 P. only because a decree in favour of the plaintiff for Rs. 915. 38 P. had been passed on 22-4-65 during the pendency of the suit. The defendant State of Rajasthan has filed these appeals from the decrees passed against it in both the suits. I have heard learned counsel for the parties and gone through the record very carefully. The first question that arises for consideration is whether the plaintiff is entitled to claim 40 percent above the contract rates in respect of additional items of work carried out by him. It is not in dispute that on account of change in the design of the contract works,the plaintiff had to carry out certain items of work much more in quantity than set out in the contracts. He was also required to carry out one such item of work in each contract which was not included in the two contracts. The items which fall within the first category, namely, where the plaintiff had to carry out increased quantities of work are these : Suit No. 22/1963 relating to Drainage Syphon at RD 87000 : Item of work Quantity mentioned in the contract Quantity of work actually executed Additional quantity Value of additional quantity as per contractual rate as shown in para No. 7 of the plaint 1 2 3 4 5 1. Earth work including lifts 192900 cft. 263383 cft. 71383 cft. 2228. 00 2. Concrete work 36300 cft. 41814 cft. 5514 cft. 2481. 00 3. Masonary work 8500 cft. 25045 cft. 16545 cft. 11779. 00 4. Pointing work 1150 sft. 8197 sft. 7047 sft. 633. 00 5. Plaster work 250 sft. 547 sft. 297 sft. 63. 00 Suit No. 3 of 1964 relating to Drainage Syphon at RD 54733 : l. (a) Earth work 145000 cft. 300331 cft. 155331 cft. 7716. 00 (b) Extra lifts 2000 cft. 300331 cft. 298331 cft. 1193. 00 2. Concrete work 29550 cft. 40706 cft. 11156 cft. 5578. 00 3. Masonry work 12300 cft. 33800 cft. 31500 cft. 13140. 00 4. Pointing work 600 sft. 6868 sft. 6268 cft. 421. 44 5. Plaster work 250 sft. 506 sft. 256 sft. 53. 76 In the second category, namely, where the plaintiff had to carry out altogether new items of additional work, the only item is Kharanja in both the contracts. The kharanja work as per schedule of rates (old) in suit No. 22 of 1963 has been valued at Rs. 1326 and in suit No. 3 of 7964, at Rs. 7326. 27 P. Again, it is not in dispute that the plaintiff has received payment for all the items of work mentioned above; for the items of work falling into first category at the rates stipulated in the contract and the items of work falling in the second category at the rates provided in the schedule of rates of the Cham-bal Project prevailing on the date of the contract. The plaintiff has claimed in both the suits enhanced rates 40 percent over and above the rates paid to him on the following : (1) That the defendant tacitly accepted the enhanced rates of 40 percent over the basic rates stipulated in the contract; (2) That the engineers gave verbal assurances to him that he would be paid at the enhanced rates; (3) That there were major changes in the work on account of change in design with the result that the cost of work increased to a considerable extent; and (4) That due to increased quantities and new items of work, the work prolonged over a longer time and in the meantime the cost of labour and material rose considerably high and the Chambal authorities too revised their schedule of rates during this interval. I would like to deal with each ground separately to find out how far the grounds urged by the plaintiff are proved and whether on the aforesaid grounds the plaintiff can claim 40 percent above the rates paid to him. The first ground relates to implied acceptance of the defendant to pay enhanced rates at 40 percent above the contractual rates. In this connection, reliance was placed in each suit on the letter by the Assistant Engineer and its reply by the plaintiff. The Assistant Engineer wrote to the plaintiff that it was proposed to increase the number of RCC pipes and the steel content therein and also to increase steel content in the RCC work in the bank portion of the canal. He therefore asked the plaintiff to let him know whether he would like to take up 'the additional work at the same rates and the applicable rates of the schedule' as provided in the agreement. The plaintiff wrote back to the Assistant Engineer that extra work other than that agreed upon in the agreement would be executed by him at 40 percent above the Chambal Schedule of Rates. No reply was sent by the Assistant Engineer to this letter of the plaintiff asking for increased rates. It is argued that the silence on the part of the Assistant Engineer amounted to implied acceptance of the rate quoted by the plaintiff. I do not think there is any warrant for the above contention. There is a clear distinction between an act done or omitted to be done by an officer of the government and by the government. An officer of the government does not represent the Government unless he is authorised to do sp. In the present case, there is nothing to suggest that the Assistant Engineer had the requisite authority on behalf of the government. Unless the authority, actual or ostensible, to enter into a contract binding on behalf of the government is established, an act or omission on the part of the public officer cannot form the basis of the plea of estoppel against the government. That apart, I fail to understand how omission to repudiate the proposal put forward by the plaintiff for charging enhanced rates would amount to an implied agreement to pay at the enhanced rates. In Union of India vs. Watkins Mayor and Co. (1), it was argued that the plaintiff had given notice to the defendant claiming rent at the rate of Rs. 4 per ton per month and there was no protest on behalf of the defendant and therefore it must be taken that there was an implied agreement between the parties that rent will be paid at that rate. Their lordships the Supreme Court rejected the argument and observed : "merely because the plaintiff had claimed storage charges at the rate of Rs. 4 per ton per month and there was silence on the part of the defendant, it cannot be deemed that there was acquiescence on the part of the defendant and that there was an implied undertaking on its part to pay godown rent at that rate. " (Para 7, p. 278) I therefore find no substance in the first ground.
(3.) THE second ground relates to verbal assurances given by the engineers that the plaintiff will be paid at the enhanced rates. THE plaintiff in his statement has deposed that verbal assurances were given to him by the Assistant Engineer and Executive Engineer. Both these officers appeared in the witness-box as DW 1 and DW 2. No question was put to DW 1 about the alleged assurance. DW 1 emphatically denied having given such an assurance to the plaintiff. THE plaintiff in his cross-examination pointed out the name of Mr. Notra as the person who assured him about the payment at enhanced rates, but Mr. Notra was not examined by the plaintiff. THE statement of the plaintiff is not at all convincing and I am not inclined to put implicit faith on his lone statement. I therefore hold that no verbal assurances as alleged by the plaintiff were given by the engineers. Assuming for a moment that the assurances as alleged by the plaintiff were in fact given by the Assist. Engineer & Executive Engineer, even then they are of no consequence. Both these officers were the agents of the government and they were deputed to look after the contract works. THEy had no authority to give assurance for payment at enhanced rates and this fact was within the knowledge of the plaintiff. No estoppel can arise from the representation of the agent unless it is within his actual or ostensible authority to make it. THE second ground also fails. I now take up the last two grounds. It is not in dispute that due to alterations in the design, the cost of work in both the contracts was considerably increased. The tender cost of work for constructing drainage syphon at RD 54733 was Rs. 97,839/-, but it actually costed Rs. 1,43,371/ -. Similarly, the tender cost of work in respect of drainage syphon at RD 87000 was Rs. 1,10,882/-, but it actually costed Rs. 1,47,796/ -. It is again an admitted fact that under the agreement the works at RD 87000 and RD 54733 were to be completed on 19-7-57 and 9-10-57 but they were actually completed on 15-7-58 and 9-7-59 respectively. The main reason behind prolongation of works was increase in the quantities of various items of work. The plaintiff has deposed that during the intervening period the cost of labour and material rose considerably high. The plaintiff has not given any particulars in this connection. His statement is vague and not of much value. DW 2 Davendrasingh has deposed that the old schedule of rates was revised on account of rise in the cost of labour and material but he was not able to say when it was revised. DW 3 D. M. Sanghvi has deposed that the new schedule of rates came into force in the year 1958. Besides the oral evidence, the learned counsel for the plaintiff also invited my attention to letters Ex. 4 and Ex. 5 written by the Executive Engineer and Superintending Engineer respectively. By his letter Ex. 4, the Executive Engineer recommended that the contractor be paid at the schedule of rates for the excess quantities carried out by him. He based his recommendation mainly on two circumstances. Firstly, the design was changed on account of which the work was prolonged over a long period and secondly, the price index during this period rose very high. The Superintending Engineer in his letter Ex. 5 agreed with the comments given by the Executive Engineer in his letter Ex. 4 and affirmed that during the period the rates of material and labour had increased and on that account the schedule had to be revised. From the evidence on the record it does appear that during the relevant period the cost of material and labour did rise but to what extent is not borne out by the evidence. The revised schedule of rates was brought into force in the year 1958 but it is again not clear to what extent and in what items of work the old rates were revised. The parties neither produced the old schedule of rates nor the new schedule of rates. It therefore cannot be said with certainty that during the relevant period the cost of labour and material increased by 40 percent. Even assuming that there was an increase to the tune of 40 percent in the price index, the question still remains whether the plaintiff is entitled to increased rates on the additional items of work carried out by him. This question deserves to be judged from three different angles. Firstly, whether the terms of the agreement entitle the plaintiff to claim increased rates on additional items of work. Secondly, whether on account of change in the design prolongation of the period, increased quantities of work and shooting up of the prices, the agreement entered into between the parties was frustrated and the plaintiff was entitled to increased rates on the basis of quantum meruit and thirdly, even if the agreement was not frustrated, hill the plaintiff is entitled to increased rates on the basis of quantum meruit. The relevant clauses of the agreement are clause 13 of the "general Rules and Directions for the Guidance of contractors" and clause 16 of the "particular specifications for the construction of R. C. C. Pipe Syphon at RD 37000 and RD 54733 of Right Main Canal". Clause 13 runs as under : "cl. 13 - The Engineer-in-charge shall have power to make any alteration in, or additions to, the original specifications, drawings, designs and constructions, that may appear to him to be necessary or advisable during the progress of the work and the contractor shall be bound to carry out the work in accordance with any instructions which may be given to him in writing signed by the Engineer-in-charge, and such alteration shall not invalidate the contract; any additional work which the contractor may be directed to do in the manner above specified as part of the work shall be carried out by the contractor on the same conditions in all respects on which he agreed to do the main work, and at the same rates as are specified in the tender for the main work. The time for the completion of the work shall be extended in the proportion that the decision of Engineer-in-charge shall be conclusive as to such proportion and if the additional work includes any class of work, for which no rate is provided in this contract, then such class of work shall be carried out at the rates entered in the schedule and if such last mentioned class of work is not entered in the Schedule of rates of the government of rates of the government then the contractor shall, within seven days of the date of this receipt of the order to carry out the work, inform the Engineer-in-charge of the rate which it is his intention to charge for such class of work, and if the Engineer-in-charge does not agree to this rate, he shall, by notice in writing be at liberty to cancel his order to carry out such class of work, and arrange to carry it out in such manner as he may consider advisable provided always that if the contractor shall commence work or incur any expenditure in regard thereto before the rates shall have been determined as lastly hereinbefore mentioned, then in such case, he shall be entitled to be paid in respect of the work carried out or expenditure incurred by him prior to the date of the determination of the rate as aforesaid according to such rate or rates as shall be fixed by the Engineer-in-charge. In the event of a dispute, the decision of the Chief Engineer will be final. " Now, clause 13 provides in the first place that the Engineer-in-charge shall have power to make any alterations in, or additions to, the original specifications, drawings, designs and instructions during the progress of the work and the contractor shall be bound to carry out the work in accordance with such instructions of the Engineer-in-charge. Secondly, it provides that such alterations shall not invalidate the contract. It then provides the manner of ascertaining rates at which the contractor shall be paid for the additional items of work. It lays down that the additional work shall be carried out by the contractor on the same conditions in all respects in which he agreed to do the main work and at the same rates as are specified in the tender for the main work. If the additional work includes any class of work for which no rate is provided in the contract, then such class of work shall be carried out at the rates entered in the schedule of rates of the government. If the additional work is of such class of work for which no rate is mentioned in the schedule of rates of the government, then the contractor shall quote the rate at which it is his intention to charge for such class of work. Clause 16 runs as under : "cl. 16 - For any extra work or item the rate of Chambal Schedule corrected upto date will be binding on the contractor. " This clause enables the contractor to charge for extra work or item at the rate of Chambal Schedule corrected upto date. As noticed above, clause 13 appears in "general Rules and Directions for the Guidance of Contractors", whereas clause 16 appears in "particular Specifications for the Construction of RCC Pipe Syphon at RD 87000 and RD 54733 on the Right Main Canal" Both these clauses form the part of the agreement. It is argued on behalf of the State that clause 16 relates to such class of additional or extra items of work for which no rate is specified in the tender but it is so provided in the Chambal Schedule corrected upto date. On the other hand, it is argued on behalf of the plaintiff that because clause 16 is incorporated in "particular Specifications" for the disputed contracts and clause 13 is incorporated in "general Conditions", the former abrogates the latter so far as it relates to extra or additional items of work. According to the learned counsel, for all additional items whether they are covered by the rates provided in the contract or not, clause 16 applies and the contractor is entitled to charge for such additional work at the rates specified in the Chambal Schedule of rates corrected upto date. I have given my anxious thought to the rival contentions put forward before me. It is an elementary rule of construction that when a single transaction is carried into effect by several instruments, the whole are treated as one instrument. Another rule of construction applicable to all written instruments is that the instrument must be construed as a whole in order to ascertain the true meaning of its several clauses and words of each clause must be so interpreted as to bring them into harmony with the other clauses of the instrument if that interpretation does no violence to the meaning of which they are naturally susceptible. The best construction of the deeds is to make one part of the deed expound the other and so to make all the parts agree. In view of the above principles, it is manifest that clause 16 cannot be divorced from clause 13 and one cannot be read and construed independently of the other. They must be so interpreted as to bring harmony with the other. If so interpreted, I am of the opinion that clause 16 does not relate to all additional items of work but only to that class of additional or extra items for which no rate is specified in the contract. Now, to this class of additional work, clause 13 provides the rate specified in the schedule of rates of the government whereas clause 16 provides the rates specified in the Chambal Schedule of Rates. It is here that inconsistency arises between the two clauses. The rule of interpretation is that if there are two clauses or parts of a deed repugnant to each other, the first will be received and the latter rejected unless there is some special reason to the contrary. Refer to Midnapur Zamindari Co. Ltd. vs. Jogendra Kumar Bhaumik (2 ). In the present case, it is not possible to find out which of the two inconsistent clauses is earlier as both the clauses are incorporated in separate instruments which were executed at the same time. But one fact is clear that clause 13 appears in "general Directions" whereas clause 16 appears in "special Directions" for the disputed contracts work. The clause in General Directions must therefore yield to the clause in Special Directions. I am therefore of the opinion that according to the terms of the agreement, the plaintiff was bound to carry out the additional items of work at the contractual rates if the rates for such work were specified in the tender. In case the additional items of work relate to such class of work, the rates of which were not included in the tender, the plaintiff was entitled to charge for such items of additional work at the rates provided in the Chembal Schedule of rates corrected upto date. It is thus clear that under the terms of the agreement the plaintiff is not entitled to enhanced rates, The next question that arises is whether the contract was frustrated on account of subsequent change in the circumstances and uncontemplated turn of events. Clause 13 in clear terms lays down that alterations in specifications and designs during the progress of the work shall not invalidate the contracts. Even otherwise, as laid down by their lordships of the Supreme Court in Messrs Alopi Parshad & Sons Ltd. vs. Union of India (3), "a contract is not frustrated merely because the circumstances in which the contract was made, are altered" Sec. 56 of the Contract Act provides that : "a contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. " The plaintiff in the present case carried out the Additional work and thus performed the contract. He also received payment for additional work at the rates stipulated in the contract. There is therefore no warrant for the conclusion that the performance of the contract had become impossible or unlawful and thereby the contract was frustrated. ;