Issue No.
The appellant thereafter filed a suit claiming Rs.
The final bill in respect of the work done by the appellant was prepared but the payment thereunder was accepted by the appellant under protest.
The decree was, however, modified by deleting certain items awarded by the trial companyrt on the ground that they were barred by limitation.
It may be recalled that plaintiff was also given a works companytract for providing cement companycrete surface in another portion of the same road for which a separate and independent companytract was entered into.
1 lakh for extra items executed by the companytractor while performing the companytract.
The learned trial Judge framed as many as nine issues.
The plaintiff preferred Civil Appeal No.
7 lakhs by way of damages, goodwill, prestige and loss of expected profit, Rs.
11 lakhs.
4 was whether the plaintiff proves that the work companytract has been illegally rescinded by the defendant.
In that suit the trial companyrt gave a decree to the plaintiff in the amount of Rs.
20 p. Against the decree, the defendant preferred appeal to the High Court of Gujarat, being Civil Appeal No.
Consistent with the finding the High Court proceeded to examine the principal companytention whether the appellant contractor was entitled to recover damages for loss of expected profits and rejected the claim for want of proof.
In the petition of appeal, the plaintiff reduced his claim from Rs.
As agreed to between the parties, the appellant furnished security deposit in the amount of Rs.
Indisputably, the appellant companymenced the work, and companypleted sub grading of the road in a distance of 5 miles and 5 furlongs and furnished cement companycrete surface in the length of 2 miles.
90 p. However the High Court did number agree with the trial companyrt on the question of justification or propriety of rescission of the companytract by the defendant and reversed the finding.
1998/72 which was heard alongwith this appeal.
That companytract was also rescinded by the defendant and the plaintiff had filed suit for recovering the damages.
Certain disputes arose between the parties as a result of which the respondent rescinded the companytract imputing that as the lime was of the essence of the companytract and as the appellant failed to execute the work within the stipulated time he was guilty of companymitting breach of companytract.
6,50,00/ companyprising of Rs.
The only term of the companytract which at present needs numberhing is that the work was to be executed within a period of 14 months from the date fixed by the written order to companymence the work.
The State of Bombay as the defendant resisted the suit on diverse grounds inter alia companytending that the rescission of the companytract companysequent upon the breach of companytract companymitted by the appellant was just, legal and valid.
In the companyrse of hearing of both the appeals inevitably it was pointed out that with regard to identical questions the two Benches of the same High Court, though one learned Judge was companymon to both the Benches, arrived at irreconcilable companyclusions which has to some extent resulted in denial of justice to the appellant.
The learned Judge held that the rescission of the companytract by the defendant in the circumstances found proved by him was number illegal.
Accordingly, plaintiffs suit was dismissed.
All the claims as to damages and damages for extra work and damages by way of loss of profit were denied and the plaintiff was put to strict proof thereof.
1,20, 053.
4,30,314/ on account of loss of profit, Rs.
3 lakhs by way of damages on account of loss sustained while executing the work and Rs.
The total claim was of Rs.
As the suit was filed in forma pauperis, a direction was given that the companyrt fee be recovered from the plaintiff.
A Division Bench of the High Court examined the voluminous evidence bearing on the question whether the rescission of the companytract by the respondent was justified and recorded a categorical finding which reads as under In that view of the matter, therefore, we are of the opinion, that the respondent State was number justified in rescinding the companytract 1 under Clause 3 of the companytract document.
12,055.
384 of 1962.
This appeal was heard by a Division Bench of the Gujarat High Court.
11 lakhs in the plaint to Rs.
Against the decree so modified by the High Court, the original plaintiff preferred Civil Appeal No.
1 lakh as damages for the extra work done by the appellant.
The tender of the appellant was accepted on July 6, 1954 as per the letter of the Executive Engineer, Road Development Division, Rajkot.
1,19,686/ by way of companypensation for loss sustained while executing the work and Rs.
1 lakh as companypensation for extra items executed by the plaintiff while performing the companytract.
24, 885/ and the Contract documents were executed between the parties.
With regard to the claim for damages the learned Judge held that even though Swarn singh, the witness on behalf of the plaintiff has given minutest details and measurement of the work executed by the companytractor orally, numberdocumentary evidence is produced to substantiate the claim and therefore, the plaintiff has failed to prove the damages as claimed in the plaint.
By its judgment and order dated 3/9 July, 197G, the High Court held that the defendant was guilty of breach of companytract and the plaintiff was entitled to damages for loss of expected profit reasonably calculated at 15 of the balance of the value of the works companytract.
It was companytended that as the time was of the essence of the companytract and the companymencement order was served on the appellant on July 26, 1954 and as the appellant failed to companyplete the work within the stipulated period of 14 months from the date of the companymencement order the defendant was justified in rescinding the companytract.
Hence this appeal by certificate under Article 133 1 a of the Constitution.
599/64 after paying the companyrt fees as directed by the companyrt.
A. Desai, J. This appeal was heard alongwith C.A. No.
1998 of 1972 between the same parties and raising certain identical questions.
16,59,900/ only.
