1986 PLP 1421 (MLD)

(iv) Providing diversion for the traffic during the progress of the work. (v) Extra cartage for transportation of the screening charges of 25% dust contained in the crush aggregate supplied by the (vi) Use of water in the preparation of snub 'grade, copies of the plaintiff's letter, dated 16‑2‑1965, 1‑3‑1965 and 20‑4‑1965 are annexed herewith and marked 'E', 'F' and 'G' respectively. The plaintiff had contended that since he demanded fixation of rate for the office of the appellant became hostile and moreover, carpet plant was not provided. Eventually, the said plant was provided in December, 1966 but it was not in working condition, and was thereafter, repaired. The work of the respondent was thereafter, terminated by the appellant. On 8‑8‑1967 the respondent claimed Rs.5,89,966.31 with interest of 7 % per annum. The Superintending Engineer gave his decision in respect of the items on 15‑5‑1969, but it was not implemented by the Government. The plaintiff, thereafter, filed the suit after giving notice. In written statement, it was asserted that the work was notl completed in time in spite of extension of time granted upto 8‑1‑1966, and therefore. the notices were issued to the respondent to complete the work otherwise the remaining work would be completed at his risks but the respondent failed to do the work. It was admitted in written statement that first three items of the additional work claimed by the respondent had been carried out by him. However, the other items were denied. It was asserted that the carpet plant was duly supplied and on 10‑3‑1967, it was asserted, that the respondent stopped the work and, therefore, he was directed to get the work measured. The following issues were framed:‑. (1) "Is the suit barred by section 69 of Partnership Act. (2) Whether the plaintiff failed to complete the work in question in terms of the Scheduled programme as laid down in the agreement in question if so, to what effect? (3) Whether the items V and VI mentioned in para. 6 of the plaintiff are extra items not provided for in the estimates and Schedule 'B' to the agreement and the plaintiff is entitled for separate payment for them? If so, at what rate? (4) Whether the defendant delayed the supply of carpeting plant to the plaintiff? If so, with what effect? (5) How and with what consequences, if any, the plaintiff stopped the work in question, before the completion? (6) Was the termination at contract in question by defendant arbitrary illegal and unwarranted? (7) Whether the plaintiff suffered losses or profits as claimed in Annexure 'R' to the plaint? (8) Whether the suit is maintainable in view of the decision of the Supreintending Engineer, dated 15‑9‑1969 (Annexure 'T' to the plaint)? Or is the said decision conclusive, final and binding on the parties and the suit is untenable? (9) Whether any cause of action accrued to the plaintiff for filing this suit? (10) What should the decree be? The parties led their evidence and filed documents. After consideration the documents filed by the parties and the deposition made by the witnesses the Hon'ble Single Judge decreed the suit in the sum of Rs.1,10,235.87 with interest of 7 % per annum from the date of suit which was 7‑3‑1970. We had heard Mr. A.R. Akhtar for the appellant on 17‑2‑1986 and after hearing, had dismissed the appeal by an oral order for the reasons to be recorded separately. Mr. A. R. Akhter had pressed only two grounds of appeal before us. No.1 was that the Hon'ble Single Judge had allowed an excess amount of Rs.8,000 in respect of the work of carpeting inasmuch as he had allowed excess rate in respect of carpeting. We do not find any justification for this submission. The appellant's counsel had taken objection to the rate of Rs.60.88 which was granted by the learned Single Judge in respect of these items. His submission was that the contracted rate was only Rs.52 per sqr. ft. and not Rs.60 per sqr. ft. He had referred to the Contract concede that the specification of the in this regard. But he had to cone work was changed and, therefore, the rate could not be applicable for this. Moreover, we have the judgment of the learned Single Judge in respect of the appellant had only pleaded that amount claimed if found due would be adjusted towards the expenditure by the defendant on completion of extra abandoned work. The appellants never contended that the rate was in any way in excess of what had been ultimately agreed between the parties. The appellants had merely claimed in respect of this work that the measurement was not correct as claimed by the plaintiff but they had never raised any objection to the rate demanded by the respondent. Moreover, the appellants have themselves made a payment of Rs.3,96,672.39 to the respondent, this payment was made at the rates claimed by the respondent and not in accordance with the alleged contract. The explanation of Mr. Hafeez Lakho, learned counsel for the respondent was that the increase in rate had been agreed to on account of addition in specification of the thickness of the carpeting. We find this explanation as correct in view of the persistent conduct and pleading of the appellant and, therefore, we do not see any justification in the submission made by the appellant's counsel that there was an excess of Rs.8,000 in respect of the claim of carpeting of the road. The learned counsel for the appellant had further stated that no set off had been allowed to the appellant in respect of the claim. However, we do not find any claim of set off made by the appellants. The claim of set off had to be pleaded in the written statement and the. actual amount for the same had to be specified, but the same was never done. The learned, counsel relied upon a statement which was filed by the appellant's counsel before Original side Judge on 17‑11‑1982 The same is on page 135 of the paper book. But this is neither exhibited nor it was proved by any one on behalf of the appellant. In fact this statement was filed on the last day of argument when every thing has been concluded. The appellant never applied for examining any one to prove the said statement, nor there is any consent by either side that the said statement should be taken on record and be considered as a part of documents of the appellant. Therefore, this statement is worthless piece of paper and has to be completely ignored. Apart from this, there is nothing on record, which can justify any claim of set off. Consequently, this appeal was found to be without any merits and was dismissed with costs on 16‑2‑1986 by oral order for the above reasons./ The decree should be satisfied by the appellant within three month from today. A.A. Appeal dismissed.