Judgment

MATHEW, J.:- This is an appeal by the defendant on the basis of a certificate against a decree passed by the High Court of Bombay in appeal from a decree in a suit for recovery of balance of amount due on account of extra construction work carried out by the plaintiff-respondent.

2. The State of Bombay prepared a scheme for construction of blocks in Sholapur and invited tenders for the same. The respondent, a firm, submitted its tender on 29-7-1948. The tender was in B-1 form, otherwise known as percentage tender. The tender was accepted on 6-I2-1948 by the Labour Department on behalf of the State of Bombay. The Bombay Housing Board came into being with the passing of the Bombay Act 69 of 1948 and under Section 54 of that Act, the above contract shall be deemed to have been entered into with the Board.

3. The order to carry out the work was issued to the respondent by the Housing Commissioner on 15-8-1948.The construction was to be completed within one year from the date of the order. The time was extended and the work was actually completed in March, I950 and possession was taken by the appellant some time between 5-5-50 and 30-5-50. The amount paid to the respondent on 30-3-1951 under the final bill was accepted by it under protest. As the disputes between the parties in respect of the claims made by the respondent could not be settled by agreement, the respondent filed the suit, claiming under 4 items, namely, A to D, a sum of Rs. 38,000-8-0.

4. As we are concerned in this appeal only with the claims specified in A-3, A-4, C-1 and C-2, it is not necessary to refer to the contentions of the appellant in respect of the other items. In regard to the claims in items A-3 and A-4, the appellant contended that they were for extra works carried out by the respondent without any agreement as to the rate to be charged and therefore the respondent was entitled to have the claim settled on the basis of the provision in clause of the contract for such works and that claims in items C-1 and C-2 were not maintainable by virtue of clause 15 in the contract and that the suit was barred by limitation.

5. The trial court decreed the suit for a sum of Rs. 2,865-0-0 with proportionate cost and future interest. It dismissed the claims made under items A-3, A-4, C-1 and C-2.

6. The respondent filed an appeal before the High Court for the balance of its claim and the appellant filed a cross appeal.

7. The High Court decreed the claims in items A-3, A-4, C-1 and C-2 and the sole question in this appeal is whether the claims in these items were sustainable in view of clauses 14 and 15 of the contract between the parties and whether there was evidence to establish them.

8. The amount claimed in item A-4 was Rs. 8,239 and that was mainly in, respect of the work of filling up of ditches etc., which was done by the respondent under the order of the appellant. The order to carry out this extra work was given on 7-11-1949. The respondent intimated by notice in writing, as required by clause 14, the rate for carrying out the work. The Engineer-in-charge did not exercise his liberty to cancel the order, or give the contract for the extra work to any other contractor. The respondent s case was that the amount due to it for the extra work under item A-4 was to be calculated on the basis of the rate specified in the notice. The appellant contended that in view of clause 14 of the contract, the respondent was entitled only to the rate as fixed by the Engineer-in-charge.

9. So, the question for consideration in respect of item A-4 is whether, in view of clause 14 of the contract, it was open to the respondent to make the claim on the basis of the rate quoted by it in the notice. Clause 14 provides:

Alterations in specifications and designs not to invalidate contracts -

The Engineer-in-charge shall have power to make any alterations in, or additions to, the original specifications, drawings, designs and instructions that may appear to him to be necessary or advisa