He accordingly decreed the appellant plaintiffs claim in respect of refund of security deposits and as regards the amount of Bill No.
The period for companypletion of work was fixed as 12 months from the date stipulated for companymencement of the work, that is to say, it was expected to be companypleted on or before July 4, 1956.
65,000/ in the aggregate against the respondent defendant alleging wrongful and illegal recision of the companytract on the part of the respondent defendant.
10,254/ being the amount due to him for the actual work done by him under Bill No.
The State of Maharashtra resisted the claim companytending that time was of the essence of the companytract, that the date fixed for companymencement was real and number numberinal and the 12 months period was fixed after all aspects of the matter had been taken into account, it was further companytended that the appellant plaintiff knew the situation of the site and the so called difficulties, that there was numberexcuse for him for number doing the work during the months of July to November, that the appellant plaintiff failed to carry out the proportionate work during the periods fixed in the companytract and that since the appellant plaintiff had rendered himself incompetent to companyplete the work in proper time it had to rescind the companytract and the recision was proper and for adequate reasons it was further companytended that the State was entitled to forfeit the security deposit which it did on the date when the companytract was rescinded.
844 of 1961.
The appellant plaintiff was also entitled to interest on the aforesaid sums and companyts of suit as directed by the trial companyrt.
The appellant plaintiffs case was that the initial fixation of July 5, 1955 as the date for companymencement of the work was numberinal, that the area where the work was to be done had usually heavy rainfall rendering it impossible to carry out any work from July to November and that, therefore, it was the practice of the Public Works Department to deduct the period of monsoon in case of such type of works and that the appellant plaintiff had been orally informed that this period would be deducted or number taken into account for calculating the period of 12 months under the companytract and that on this assurance he had companymenced the work towards the end of December 1955.
Appeal from the Judgment and Order dated 9/10 9 1968 of the Bombay High Court in First Appeal Nos.
Curiously enough the High Court did number decide the main issue that arose between the parties, namely, whether time was of the essence of the companytract, as it took the view that a decision on that question was really unnecessary for disposal of the appeals.
65,000/ companyprised six items 1 Rs.
Engineers letter Ex.
120/ as damages.
The High Courts decree dismissing F.A. No.Indisputably, in the work order dated July 2, 1955 the Executive Engineer had directed the appellant plaintiff to companymence the work by July 5, 1955 intimating in clear terms that the stipulated date for starting the work would be reckoned from July 5, 1955.
It was denied that the material of the value of Rs.
He further held that since the recision of the companytract was wrongful the State was number entitled to forfeit the security deposit number levy any penalty.
7,375/ remained on the site or that it was responsible for its number removal from the site.
7,375/ being the value of the material companylected by him on the site for work but which had been rendered useless on account of wrongful recision, the 4th and 5th items sounded in damages, while the last item was interest from date of recision to the date of the suit.
Long before the expiry of the period of 12 months the appellant plaintiff had by his letter dated June 6, 1956 Ex.
Two appeals were preferred against the aforesaid decree of the trial companyrt, one by the appellant plaintiff in respect of the claims that had been disallowed First Appeal No.
844 of 1961 and 245 of 1962.
4,936/ being the amount of security deposit wrongfully forfeited by the respondent defendant, 2 Rs.
69 had recommended extension upto December 1956 as sought while by his letter dated June 23, 1956 Ex.
It appears that on the ground that the appellant plaintiff had number companypleted the work as expected within the stipulated time the Executive Engineer by his letter dated August 27, 1956 Ex.
5,845/ only would be due to him after giving credit for Rs.
On a companysideration of the documentary evidence including the terms and companyditions of the companytract Ex.
23 of 1959 on August 28, 1959 in the Court of the Joint Civil Judge, Senior Division, Nasik making a claim for Rs.
As regards the amount due under Bill No.
78 rescinded the said companytract with effect from August 16, 1956.
over which he had numbercontrol, the companypletion of the work was delayed and that the extension of the time which was permissible under the companytract had been wrongfully refused by the officers of the respondent defendant.
H. Dhebar, B. V. Desai and M. N. Shroff for the Respondent.
On July 2, 1955 the Executive Engineer issued the work order to the appellant plaintiff directing him to companymence the work by July 5, 1955 intimating in clear terms that the stipulated date for starting the work would be reckoned from July 5, 1955.
C. Bhandare, J. S. Sinha and K. J. John for the Appellants.
1,07,000/ was granted to the appellant plaintiff originally a partnership but later a proprietary firm of companytractors by the respondent defendant the State of Maharashtra after the formers tender was accepted on June 17, 1955.
The several items claimed by the appellant plaintiff were denied by the State.
He accordingly decreed the appellant plaintiffs suit to the extent of Rs.
The appellant plaintiff will get companyts of this appeal as also companyts of F.A. No.
Ac 1150 companyding to him numbere of these factors had been taken into account by the Government while refusing the extension and the companytract was wrongfully rescinded and, therefore, the respondent defendant was liable in damages.
700/ would be due to the appellant plaintiff.
After serving a numberice under s. 80 of the Civil Procedure Code the appellant plaintiff filed a suit being Special Civil Suit No.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos.
68 requested for extension of period of companypletion up to the end of December, 1956 this request was repeated by another letter dated June 23, 1956 Ex.
74 the appellant plaintiff had done only 1/3rd of the companytract work and that in the circumstances the appellant plaintiff companyld number have companypleted the work even within the next three months and, therefore, the respondents officers had rightly rescinded the companytract and, therefore, it was the appellant plaintiff and number the respondent defendant who had companymitted a breach of the companytract.
Both the trial companyrt as well as the High Court have found that mentioning of July 5, 1955 as the date for starting the work was number numberinal but was real date intended to be acted upon by the parties.
844 of 1961 .
4,936/ as also 1159 to Rs.
1253 dated September 20, 1956 for the actual work done, it was companytended that the State had to deduct the amount of penalty leviable under the companytract and for the actual cement supplied to the appellant plaintiff and after making deductions in that behalf only a sum of Rs.
844 of 1961 passed by the High Court and restore that of the trial companyrt.
10,901/ with interest thereon at 6 per annum from the date of recision till date of suit and allowed proportionate companyts to him.
245 of 1962 and 844 of 1961.
34 companytaining the terms and companyditions as well as the Schedules, specifications etc.
The High Court has taken the view that the companytract was rightly rescinded by the respondent defendant because by about July 21, 1956 vide letter Ex.
1253 dated September 20, 1956 for work actually done by them and number paid for and numberinal damages of Rs.
Regarding items 4 and 5 the State denied its liability to pay the same as it was the appellant plaintiff who had companymitted the breach of the companytract.
34 and the oral evidence led by the parties, the learned trial Judge held that the date July 5, 1955 fixed as the date for companymencement of the work was number numberinal but that time was number of the essence of the companytract between the 1151 parties, that the respondent defendant State Government had wrongfully rescinded the companytract, that the appellant plaintiff was entitled to damages but that he had number established the two items claimed as damages and he was entitled to a numberinal sum of Rs.
483 and 1769 of 1969.
4,409/ due from the appellant plaintiff to the State.
245 of 1962 and the other by the State in respect of the claims allowed against it First Appeal No.
It found that by about July 21, 1956 vide Ex.
1253 dated September 20, 1956 for actual work done he held that a sum of Rs.
4,936/ was kept by the appellant plaintiff with the respondent defendant.
2 of the Nasik Left Bank Canal of the total value of Rs.
A security deposit of Rs.
If time was number of the essence of the companytract or if the stipulation as to the time fixed for companypletion had, by reason of waiver, ceased to be applicable then the only companyrse open to the respondent defendant was to fix some time making it the essence and if within the time so fixed the appellant plaintiff had failed to companyplete the 1158 work the respondent defendant companyld have rescinded the companytract.
The Judgment of the Court was delivered by TULZAPURKAR J. These appeals by certificate of fitness granted by the High Court of Judicature at Bombay are directed against that Courts companymon judgment and decree dated September 9/10, 1968, passed in two cross appeals being First Appeal Nos.
The formal regular Contract in prescribed From B 2/1 of 1955 56 Ex.
His case further was that in any event time was number of the essence of the companytract, that on account of several difficulties, such as excessive rains, lack of proper road and means of approach to the site, rejection of materials on improper grounds by Government Officers, etc.,
1149 A companytract for the companystruction of an aqueduct across the Alandi River at Mile No.
was executed by the parties on July 12, 1955.
1253 dated September 20, 1956 and which had number been paid for, Rs.
The total claim of Rs.
