MOHTA, J. - (1.) THIS appeal is directed against the judgment and decree dated 23. 10. 1984 passed by the learned Additional District Judge, Sri Ganganagar whereby the learned Judge has partly decreed the suit to the tune of Rs. 8342. 50 in favour of the plaintiff-firm and dismissed the rest of the suit and the counter claim filed by the defendant-State. It was also held that the plaintiff will be entitled to decretal amount of Rs. 8342. 50 with interest @ 12% per annum from the date of receipt of the legal notice under Section 80, CPC.
(2.) BRIEF facts giving rise to the present appeal are that the plaintiff - firm M/s. Sahiram Ram Chandra filed a suit against the defendant-State for recovery of Rs. 1,11,000/- (Rs. 1,02,901. 68 principal + 8,098. 32 interest ). The plaintiff-firm carries the work of contract with the Pubic Works Department (B & R ). The plaintiff firm is a registered firm under the Indian Partnership Act, 1932 and Sahiram is one of the partners in the said firm. The plaintiff firm took a contract for making ``sangaria-TB'' road from 15/5 kms. to 23/0 kms. (incomplete work) which was in the jurisdiction of the Executive Engineer, Public Works Department (B. & R.), Sri Ganganagar but at present, it comes in the jurisdiction of the Executive Engineer, Public Works Department (B. & R.), Rajasthan Nahar Pariyojna, Hanumangarh Division. Thereafter, Agreement No. 5 1976-77 was executed between the plaintiff and the defendant at Sri Ganganagar. According to the agreement, the contractual work was to be started from 15. 8. 76 and the same was to be completed by 24. 2. 78. The time was essence of contract. It was further alleged in the plaint for the purpose of construction of road, manufacturing of `bricks' and `jhamma Ballast' was to be done in addition to the work as mentioned in the work contracts. Before executing the contractual work, the PWD (B. & R.) was under an obligation to provide suitable land for installing `bhatta Bricks-kiln' and supply of requisite quantity of coal. After allotment of contractual work,the plaintiff-firm, in its letter dated 18. 9. 79, requested the Executive Engineer, P. W. D. Sri Ganganagar regarding allotment of suitable land for installing the `bhatta'. On 29. 9. 76, the plaintiff-firm gave a reminder by registered post. On 29. 12. 76, the information with regard to permission of the Collector, was given to the plaintiff-firm by the Executive Engineer, P. W. D. Sri Ganganagar vide communication No. EG/acctt/76/122/26 dated 3. 1. 77. Thus after 3. 1. 77, the plaintiff firm could start manufacturing of bricks on the `bhatta'. It was alleged that the plaintiff-firm was bound to execute the work within stipulated period upto 24. 2. 78 but the Assistant Engineer, P. W. D. (B. & R.) Sub- Division, Hanumangarh sent a Telegram to the plaintiff-firm on 7. 5. 77 to stop the operation of work due to scarcity of Government fund/budget. In compliance, the plaintiff-firm stopped the work. The plaintiff-firm against wrote a letter on 22. 7. 77 to the Executive Engineer, P. W. D. (B. & R.) Sri Ganganagar requesting him that in case, there was no possibility to start the work in near future, then according to Clause 32 of the Agreement, the rest of the work be withdrawn and a final sanction be given to the work as it existed. The defendant did not give reply to the letter dated 22. 7. 77 for about two months and did not give any direction to re-start the work, then, the plaintiff- firm by its letter dated 19. 9. 77 again brought in the knowledge of the Executive Engineer regarding stoppage of operation of the firm since May, 1977. Thereafter one more letter was given to them but of no avail. Vide letter No. 1012 dated 28. 1. 78, the Executive Engineer asked to re-start the work but it was not possible to complete the work as only one month was remained in hand for completing the contractual work as per agreement. Thus, the plaintiff submitted his final bill of Rs. 1,020. 50 on 20. 3. 78 in accordance with measurement book No. 1718/exg at page 34 to 42. It was also alleged in the plaint that out of five running bills the amount of security Rs. 7,322/- was deducted but the payment of last bill along with security amount was not made. It was also stated that the estimated cost of the rest of the work was Rs. 6,30,394. 50 and on its completion, the plaintiff-firm would have got atleast profit @ 15% i. e. Rs. 94,559. 18 but the work was not completed due to defendant's direction. Thus, he suffered loss of profit. The defendant has violated the terms and conditions of the contract and on giving letters to withdraw the contract. The Chief Engineer, P. W. D. (B. & R.) Rajasthan, Jaipur vide its letter No. F. 5 (4) PL/322-D/2583 dated 7. 9. 78 has imposed a penalty @ 10% amounting to Rs. 59,213/- for not completing the work, that was totally illegal unjust and against the terms of contract. The plaintiff-firm has preferred its claim to recover amount as under: 1. Amount of final bill Rs. 1 020. 50 2. Amount of Security deducted Rs. 7 322. 00 3. Amount of loss of profit Rs. 94 559. 98 Rs. 1 02 901. 68 4. Amount of interest (+) Rs. 08 098. 32 Rs. 1 11 000. 00 It was also stated in the plaint that this amount was demanded by giving notice under Section 80 CPC to the defendant but no payment was made thereafter the suit was filed praying that the suit may be decreed in favour of the plaintiff. On behalf of the defendant-State, a written statement to the suit was filed. The execution of Agreement No. 5 1976-77 was admitted and stated that the time was not the essence of contract. In the written statement, the defendant denied all the averments made in the plaint. It was stated that the plaintiff did not complete the work as per Agreement. Thus, he was defaulter. A penalty of Rs. 59,213/- was also imposed on him and the same was recoverable from the plaintiff-firm. The defendant further stated in his written statement that for the purpose of manufacturing the bricks, the defendant-State supplied 277 tonnes of coal on 1. 4. 77 and 268 tonnes of Coal on 12. 4. 77 total costing of Rs. 1,05,847. 56 but the coal was not used by the plaintiff-firm for manufacturing the bricks and the same was sold in the open market in black @ Rs. 300/- per tone prevailing at that time, therefore, the defendant is entitled to recover the amount of coal at the rate Rs. 1,61,415/- from the plaintiff-firm. In this way, the defendant claimed by way of counter claim, the cost of coal Rs. 1,61,415/- plus penalty amount @ 10% Rs. 59,213/- total Rs. 2,20,628/- and after adjusting the amount of final bill Rs. 1020/- and amount of security Rs. 7322/- total Rs. 8362/- net amount remained due Rs. 2,11,266/- against the plaintiff-firm. The defendant prayed that the claims of the plaintiff may be dismissed and the counter claim of the defendant may be decreed. The plaintiff-respondent filed rejoinder to the written statement and denied the allegation made against him. It was asserted that firstly, the land was not made available to the plaintiff as per agreement and secondly, the work was stopped by the defendant, therefore, he cannot be blamed for delaying the work as per the Agreement but it was delayed by the defendant- State. Further, in the rejoinder, the supply of coal on different dates were also denied and stated that the question of payment of coal does not arise. It was prayed that the counter claim may be dismissed.
(3.) ON the pleadings of the parties, the following issues were framed:- *** During the trial, on behalf of the plaintiff-firm P. W. Sahiram and P. W. 2 Phool Chand in rebuttal were examined and on behalf of the defendant D. W. 1 Rajpal and D. W. 2 Avinash Chandra were examined. From the plaintiff's side, documents Ex. 1 to Ex. 19 were exhibited and from defendant's side, document Ex. A/1 to Ex. A/6 were exhibited. The oral arguments were heard. After hearing of both the parties, the learned trial Court decided the issues No. 1 and 4 in favour of the plaintiff holding that the plaintiff-respondent is a registered partnership firm under the provisions of the Indian Partnership Act, 1932 and the plaintiff is entitled t recover the amount of the final bill Rs. 1020. 50 and security amount Rs. 7322/- total Rs. 8342. 50 from the defendant under issue No. 4 but dismissed the claim of the plaintiff with regard to loss of profit under issue No. 2. The counter claim of the defendant-appellant with regard to price of coal and penalty amount was also dismissed under issues No. 3 and 5. Thus, finally the suit was partly decreed in favour of the plaintiff and against the defendant for a sum of Rs. 8432. 50 plus interest @ 12% per annum from the date of receipt of the notice vide judgment and decree dated 23. 10. 84. ;