SUDHAKAR AND CO. Vs. THE CITY MUNICIPAL CORPORATION OF MADRAS, REPRESENTED BY ITS COMMISSIONER

JUDGEMENT

(1.) These two appeals arise out of a common judgment of the learned Fifth Assistant Judge. City Civil Court, Madras, rendered in Original Suit Nos. 3631 of 1966 and 3466 of 1967. For the purpose of this judgment, the parties will be referred to only as the Appellant and the Respondent. The Appellant was the sole Plaintiff in Original Suit No. 3631 of 1966 and the sole Defendant in Original Suit No. 3466 of 1967 while the Respondent was the sole Plaintiff in Original Suit No. 3466 of 1967 and the sole Defendant in Original Suit No. 3631 of 1966. Admittedly the Appellant herein entered into a contract with the Respondent, the Corporation of Madras for providing R.C.C. slabs covering the storm water drain in Habibullah Road, T. Nagar, Madras, on the side walls which had been constructed earlier. Under the original contract entered into between the parties, the work was to be completed before 31st March 1965. However, the Appellant herein wrote to the Respondent on 29th March 1965 under Exhibit A 13 stating that the work could not be completed within the prescribed period due to non -availability of materials in time. Under those circumstances, the Respondent extended the time for performance of the contract for a period of two months from 29th March 1965. Consequently, the Appellant had to complete the work before 28th May 1965. Admittedly the Appellant did not complete the work on or before 28th May 1965. After series of correspondence that passed between the parties, the Appellant instituted the former suit, namely, Original Suit No. 3631 of 1966 for recovery of a sum of Rs. 1,109 -85. This sum was claimed on the basis that the contract was rendered incapable of performance by the conduct of the Respondent itself, since the side walls were defectively constructed and they gave way preventing the Appellant from performing her obligation under the contract. The Appellant had made a security deposit of Rs. 1,650 and on certain bills submitted by the Appellant, a sum of Rs. 525 had been retained by the Respondent herein. Thus, according to the Appellant, her monies amounting to Rs. 2,175 (Rs. 1,650+525) were with the Respondent herein. At the same time, the Appellant conceded that for the value of certain materials supplied by the Respondent, credit must be given for a sum of Rs. 1,065 15 and after deducting the said sum, the suit was instituted for recovery of Rs. 1,109 -85.

(2.) The Respondent herein resisted the suit putting forward the contention that the Appellant did not complete the work as per the terms of the contract within the time stipulated, that therefore the Respondent had to take steps to complete the remaining work by entrusting the same to another contractor after calling for fresh tenders and that on account of the failure of the Appellant to complete the work as per the terms of the contract, the Respondent incurred heavy loss and damages to the tune of Rs. 6,358 -43. The Respondent denied that the non -performance of the contract by the Appellant was cue to any defective side walls which prevented the Appellant from performing her contract.

(3.) On the above pleading of the parties, the trial Court framed the following issues: