1983 PLP 2315 (CLC)

Tender Rate In Figure In words 1 2 3 4 5 6 7 19 2,00,000, Cft. Bailing or pumping subsoil water during execution or concreting p- ipe line and l- aying encasin- g (trench vol- ume below su-bsoil water level and concrete level respectively to be paid.) Rs.800/- Rs.eight hundred only Thousannd % Cft. Rs. 1,60,00 The contract therefore has specified the stages during which bailing of subsoil water was to be paid for. The plaintiff claims that there were 13 stages as specified in para. 9 of the plaint involved in the work and at each stage subsoil water was bailed out, therefore he should be paid for each of the stages. The defendants claim that only two stages were involved in it and according to agreement they were liable to pay for two stages which they have . paid. The plaintiff has stated that it was impossible to execute this item of work without bailing out water at each one of the 13 stages. He has, further. stated that in all types of work of this kind the contractors were paid charges for bailing out water at 13 stages or stages at which actually such work has been executed. He has stated that in execution of this work 507710 cft of water had to be drained out at each stage. He has further stated that the total quantity of water drained was 6600230 cft. and has claimed payment, at the rate of Rs. 800 per cft. He has therefore claimed Rs. 52,81.940 towards this work. He has been paid Rs. 7,76.586 and therefore he claims the balance of Rs. 45,05,

318. He has further stated that the quantity of water bailed out has been taken froth the measurement book prepared by the Engineer of the defendants. He has admitted in cross‑examination that 13 stages for draining subsoil water were not mentioned in any part of the contract or specification or any other document relating to the contract for this purpose. He further admitted that by his letter dated 27th September, 1963 first he made a claim for draining subsoil water on the basis of having done the work at 4 stages‑. By another letter dated 7th October, 1963 be maintained his claim for 4 stages and specified the quantity at 10.60087 cft. and claimed Rs. 8,48,069 for the same. By his third letter dated 18th October, 1963 be made claim on the, basis of work having been done in seven stages and claimed Rs. 20,66,

573. Finally before the Arbitrator the plaintiff claimed Rs. 45,03,597 on the basis of 13 stages. This clearly demonstrates how the plaintiff had been changing his claim from time to time. The plaintiff has examined Ahmed Yar Khan who has confirmed that the subsoil water was bailed out at 13 stages. The plaintiff has examined a retired Superintending Engineer as an expert who has deposed that although there are 13 stages, by combining some of them it can be lessened and according to him instead of 13 only 10 stages of dewatering were necessary. He has, however, stated that he had no occasion to see the work during its execution and the actual condition of the site should be taken into consideration for determining the stages of the work. He has also stated that irrespective of any site condition 13 stages were necessary. A witness for P. W. D. was examined on behalf of the plaintiff who has submitted that U. K. Construction' Company was paid for 8 operations in regard ‑ to bailing or pumping out of subsoil water. This witness stated that in respect of construction of National Museum the contractors were paid for 8 operations. The defendant's witness has denied that 13 stages were required as alleged by the plaintiff. According to this witness items 2, 3 and 6 mentioned in para, 9 of the plaint could be done at one time and similarly items 4, 5, 9, 10, 11 and 12 could be combined together. The key to this Issue is to be found in item No. 19 of Schedule to the contract which has been reproduced above. The evidence regarding payment to U. K. Construction Company to the exent of 8 stages may not be sufficiently relevant to prove the plaintiff's case as it depends entirely upon the terms and conditions of a particular contract and the nature of the work performed by the contractor. The Law Officer of. P. W. D. produced in Court has merely stated that for bailing out. subsoil water the contractor was paid for 8 stages. The contract and tender :documents have not been produced and therefore mere statement of this witness will not prove the plaintiff's case. The plaintiff has specified 13 stages which have been reduced to lesser stages even by the plaintiff's witness. The stages can be determined by reading item No.

19. During cross‑examination, the defendant's witness has stated :‑ It is correct that excavation is necessary for completion of the contract work. It is correct that shuttering is to be fixed for bed concrete for syphon. But this is part of the work. It is correct that shuttering was necessary for the completion of the work but it is the part of the item. It is correct that when the concrete is made it does require time for maturity. It is correct that the water comes up after laying the concrete and it is to be dewatered again and again continuously. It is also correct that trench has to be kept dry when M. S. Bars are laid for foundation rafts of chambers for syphon. It is also correct that then shuttering has to be fixed again. It is correct that dewatering has to be done again. It could not be stopped. It is correct that for every item dewatering is to be done. A reading of this evidence at the suggestion of the plaintiff makes it clear that there are 4 stages during which the water was to be bailed out. Item No. 19 also provides bailing of subsoil water during excavation, concreting pipelines, laying of pipe and encasing. This item also provides for 4 stages. This is also confirmed by the fact that the plaintiff had first submitted his bill on the basis of having completed the work at 4 stages. In the letter dated 27th September, 1963 which is a part of Exh. 17/1 the plaintiff while rebutting the defendant's claim that dewatering of subsoil water has to be paid only for two stages made the following claim :‑ "We legally claim for dewatering of subsoil water which should be paid to us 4 times i.e. (i) excavation, (fi) laying bed concrete, (iii) pipe laying and (iv) encasing piplines. Again in his letter dated 7th October, 1963 this claim was made in the following terms :‑ (1) Agreement item No. 19. "Bailing or pumping out subsoil water during excavation or concreting pipeline and laying encasing (trench volume below subsoil water level and concrete level respectively to be paid." (a) Construction of syphons Nos. 1, 2 and Halat syphon. (1) Payment of dewatering of subsoil water during excavation of chambers and pipeline of the above structures paid to us is acceptable to us which is 5,07.710 cft. Hence no claim. (ii) Payment of dewatering of subsoil water during encasing, of pipe line of the above structures has been paid to us upto concrete level but since for certain items of concrete we have only been paid upto subsoil water level and not upto top level of concrete we claim that either actual dewatering upto subsoil water level should be paid to us or the top level of the concrete. We however without prejudice to our claim for payment of subsoil water upto concrete level in all cases, claim the difference of concrete level and subsoil water level which works out to quantity of subsoil water paid during excavation of the trench m 1,40,805 cft. (‑) 96,118 cft. paid up to concrete level) 44,687 cft. You would apprec‑ate that encasing of pipeline could not be done without dewatering of subsoil water up to full height. Therefore difference claimed (44,687 cft. %. cft.) Rs. 35,749. (iii) During laying bed concrete (for complete syphons including chambers). (iv) During laying pipelines (for complete syphons including chambers). No payment has been made to us for dewatering of subsoil water during the above two stages of work. We claim that subsoil watel as paid during excavation (i) above should be paid to us twice which works out to 10,15,400 cft. You would appreciate that laying bed concrete, pipeline and .construction of chambers above pipeline, could not be done without dewatering the subsoil water upto full height. Therefore we claim 10,15,400 cft. Rs. 800 % 0 cft. = Rs. 8,12,

320. This clearly shows that to begin with the plaintiff's own interpretation and submission of bill was on the basis of only 4 stages but later on as an after thought it was increased to 13 stages. The assessment of the evidence oral and documentary clearly establishes that the plaintiff was required to be paid for this work at 4 stages only. The plaintiff has been already paid for 2 stages. The plaintiff has stated that at each stage he had bailed out 507709.87‑cft of water. This measurement is based on the figures mentioned in the measurement book prepared by the defendants. After this statement was filed it was not challenged by the defendants. On the basis of these figures at the rate of Rs. 800 per % 0 eft., the plaintiff's counsel has endeavoured to assess the claim. However the plaintiff in his letter dated 7th October, 1963 has quantified this claim at Rs. 81,12,

320. The plaintiff has submitted that the .defendants have paid Rs. 7.76,586 for two stages also the plaintiff will be entitled to Rs. 7,76, 5

86. ISSUE No. 10 : The arbitrator had awarded Rs. 17,36,000 but in view of Ordinance XXV of 1965 as the award has abated it cannot be pressed in service by the plaintiff nor it has any legal effect. ISSUE No. 11 : In view of the finding on the aforestated issues the plaintiff is entitled to Rs: 7,705,

586. ISSUE No. 12 : The plaintiff has claimed interest at 6% per annum from June, 1964 upto the date of filing of suit amounting to Rs. 10,88,

559. The plaintiff has further claimed interest at 6% per annum from the date of suit till realization. The plaintiff made the claim on 27th September, 1963 but did not give any notice for charging interest. Again when a request for arbitration was made on 7th October, 1963 the plaintiff had categorised his claim but no reference has been made to the claim for interest. In his statement also the plaintiff has not made any reference to his claim for interest. The learned counsel for the plaintiff has also not stated in what manner and on what basis the plaintiff is entitled to claim interest for the period June, 1964 to 26th March, 1968 when the suit was filed. From the award also it is not clear that any claim of interest was made and allowed. No document has been produced to show that any demand for interest was made and notice was served a, provided by the Interest Act. In these circumstances the plaintiff is no4 entitled to claim interest for the period June, 1964 to 25th March, 1968. The plaintiff will, however, be entitled to interest @ 6% per annum from the date of suit till recovery. ISSUE No. 13 : This Issue has not been pressed by the plaintiff and my finding is in the negative. In the result the suit is decreed for Rs. 7,76,586 with interest @ 6% per annum from the date of suit till recovery with proportionate costs. K. M. A. Suit decreed.