JUDGMENT

Arijit Pasayat, J. — Leave granted.

2. The appeal arising out of SLP (C) No.17187 of 2003 is directed against the judgment rendered by a Division Bench of the Orissa High Court in the First Appeal. The appeal relating to SLP (C) No. 16439 of 2003 is against the order passed on a review application filed by the appellant relating to the connected first appeal.

3. The factual background in a nutshell is as follows :

An agreement bearing No. 21F2 of 1984-85 was executed between the original respondent Santwant Singh Gill (who has died in the mean time and is represented by his legal representatives) and the Executive Engineer, Indravati Dam Division for construction of Concrete-cum-Masonry work of the Indravati Dam of Block No. 18 upto RI 625.5. Stipulated dates of commencement of work and completion of work were 2.2.1985 and 1.5.1985 respectively. Since the respondent did not complete the work and did not participate in the measurement, by letter dated 6.1.1986 the respondent was asked to accept the final measurements of the work done by him. Subsequently the work was assigned to another contractor. A writ petition was filed by the respondent questioning the decision. High Court disposed of the matter directing the authorities to consider the grievances. In September, 1986 the respondent filed a suit in the Court of Subordinate Judge, Jeypore being Money Suit No. 417 of 1986 claiming a sum of Rs.8,93,659.91/- with pendente-lite and future interest @ 18% per annum. The defendants in the said suit who are respondents No.2 to 4, herein i.e. State of Orissa, the General Manager, Upper Indravati Project and the Executive Engineer, Indravati Dam Division filed written statement denying the claim, except for a sum of Rs. 94,006.40/- and prayed for dismissal of the suit. The admitted amount was paid in November, 1987. The suit was decreed on 20th March, 1991 for Rs. 7,03,375.29/- along with pendente-lite interest at the rate of 12% and future interest at the rate of 9% p.a. on the principal amount of Rs.6,51,077.29/-

4. The respondents No.2 to 4 filed an appeal before the High Court which was dismissed. Pursuant to the enforcement of the Orissa Electricity Reforms Act, 1995 and Orissa Electricity Reforms (Transfer of undertaking, assets, liabilities, proceeding and personnel) Schemes Rules, 1997 framed thereunder, the Upper Indravati Hydro Electric Project alongwith all its circles and Divisions with all assets and liabilities was transferred by the State Government to the appellant with effect from 1.4.1996. Since the appellant was not a party in the First Appeal, prayer for permission to file SLP was made and has been granted, and that is how the appeals have been filed. As noted above the High Court dismissed the First Appeal and the application for review filed by the appellant was rejected by the High Court on the ground that no case for review was made out. At this juncture it is to be noted that certain stands which were not highlighted in the First Appeal were sought to be introduced by the appellant in the review petition.

5. Learned counsel for the appellant-Corporation submitted that basically two issues were considered by the High Court. They related to (1) whether any extra work was undertaken by the respondent and (2) whether damage on account of idle labour was payable. States stand was that Clause 11 of the Agreement clearly indicated that M-150 is purely an extra item and as such the plaintiff i.e. present respondent would be entitled to receive payment as per schedule of rate of 1982. The High Court proceeded on the basis that though the work in question is not stipulated in the agreement, it was known to the parties concerned that there was a change in the design and as given in the drawing (Exhibit N), the execution of M 150 grade concrete work was necessary. This according to learned counsel for the appellant runs counter to the observation of the High Court. The stand of the respondent before the courts b