THE STATE OF MADRAS, REPRESENTED BY THE COLLECTOR Vs. D. MUTHIAH CHETTIAR

JUDGEMENT

(1.) The State of Madras represented by the District Collector of Ramanathapuram at Madurai, is the Appellant. The Respondent, Plaintiff the suit against the Appellant, Defendant for the recovery of a sum of Rs. 18,845, being the turn payable, according to the Plaintiff, by the Defendant in relation to services rendered and work done by the Plaintiff as contractor in the matter of the construction of a bridge on the highway at 10/5 mile from Madurai to Tondi. Under exhibit B -8, dated 25th February, 1956, a contract was entered into between the Plaintiff and Defendant in the matter of the construction of the various projects. This contract attracted the Madras Detailed Standard Specification Rules. The case of the Plaintiff is that the site for Construction of the after said perfect was hundred over to him only on 7th March 1956. According to the Plaintiff the officers of the Engineering Department, who were in charge of the supervision work, took a hostile attitude against him from the very beginning. Under exhibit A -6, dated 23rd May, 1956, the execution of the contract was stopped. Under exhibit A -8, dated 2lst June, 1956 the Divisional Engineer asked the Plaintiff to resume work. Under exhibit A -11, dated 11th October, 1956, the Plaintiff was accused of being slow in the matter of execution of the work. The Plaintiff's case was that there was sufficient reason for the slow progress of the work, as it was due to non -supply of essential materials to him for purposes of executing the work. Under exhibits A -15, A -17, A -18 and A -19, the Plaintiff was asked to start work and expeditiously complete the same. Under exhibit A -24 the time for performance of the contract was extended till 30th September, 1957. During the course of construction the Plaintiff brought to the notice of the higher authorities under exhibit A -27 about the attitude of the Assistant Engineer in relation to the particular contract. The Plaintiff's case is that he secured a copy of the contract (the agreement exhibit B -8) which included the Madras Detailed Standard Specification Rules also, only in April 1956 and that too on a request made by him for that purpose. Under exhibit A -29, curiously enough the work was again stopped in April, 1957 and when the Plaintiff protested, he was directed to complete the work within 15 days. Ultimately under exhibit A -36, dated 24th June, 1957 the contract was terminated. He appealed to the Divisional Engineer under exhibit A -38 and finally under exhibit A -52, dated 21st October, 1957 the Plaintiff appeal was rejected. In exhibit A -52, the Superintending Engineer Highways as the appellate authority says that the request of the Plaintiff for increased rates could not be entertained by the Department and when the contractor was asked to resume his work, he did not express his willingness to do so and it was in those circumstances, the Plaintiff's appeal against the order of cancellation of the contract was rejected. According to the Plaintiff the termination of the contract as illegal and he, therefore, filed an arbitration petition on 10th April, 1958 before the Superintending Engineer, Madras on 10th June, 1959, he was informed that the Superintending Engineer, Madras, was not the authority to arbitrage over the matters touching the contract and that the Superintending Engineer Sivaganga, was the proper authority. The Petitioner thereafter filed, an arbitration claim before the Superintending Engineer, Sivaganga and also the Superintending Engineer, Tiruchi, and claimed moneys for work done, under the contract and also included therein a claim for damage for premature termination of the contract. From the records, it appears that the matter was once again taken up by the Superintending Engineer for arbitration by the Madras Division, who under exhibit A -70, dated 29th May, 1961, passed an award on the arbitration claim made by the Petitioner as above before the various authorities already referred to. The Plaintiff was dissatisfied with the award, as he was of the view that the award passed by the Superintending Engineer, Madras, was not in accordance with law, as the same was passed beyond the period prescribed under the Arbitration Act. He. there fore, filed Original Petition No. 34 of 1961 on the file of the Court of the Subordinate Judge, Sivaganga to set aside the same. Ultimately, under exhibit A -73, dated 29th November, 1965 this Court by its order set aside the award. Whilst the proceedings to set aside the award of the Superintending Engineer Madras, were pending, the Plaintiff filed a suit on 2nd August 1968, on the file of the Subordinate Court, Sivagarga, clearing a sum of Rs. 18,845. This amount includes a sum of Rs. 13,789, as the amount payable by the Defendant to the Plaintiff for works already done and the balance as interest due on the same from 24th June, 1957 the date of the termination of the contract till the date of plaint.

(2.) The Defendant in its written statement denies that the department took an unreasonable attitude towards the Plaintiff. If the Plaintiff was found fault with, it was on legitimate grounds. It was the Plaintiff, who failed to carry out the work in spite of notices given to him to expedite the work. It is contended that the award is a valid one and that the suit is barred by time. In the additional statement a plea that the notice under Sec. 80 Civil Procedure Code was invalid was also taken.

(3.) On the pleadings the following issues were framed: