Point of law: When the appeal is presented in terms of Section 96 CPC and when this Court is considering this appeal not only as a last Court of fact but also in terms of law, it is open for the appellants to canvass on all such issues relating to disputed facts and law.

JUDGMENT :

This is a regular appeal preferred under Section 96 CPC against the decree and judgment in O.S.No.31 of 2005 of the Court of the learned Senior Civil Judge, Kovur,

Nellore District.

2. The defendants are the appellants. The plaintiff is the respondent.

3. The respondent laid a claim against the appellants for Rs.5,60,564.96 ps. with future interest at 24% p.a. from the date of the suit till realisation and for costs.

4. This dispute is relating to a work contract which was in respect of special repairs to the road viz., K.M.13/4 to 17/4 via Gandavaram, Peddaputhedu and Peyyalapalem. An agreement was entered into between the respondent and the appellants when the respondent became lowest tenderer for value of Rs.10,73,702/-for the estimated contract value of Rs.9,79,771/-at 9.59% excess, based on SSR 97-1999. It was accepted by the 2nd respondent. The work was to be completed within six months of handing over the site and as per the work agreement, the site was handed over on 19.09.1998 on account of which the work was to be completed within six months therefrom by 18.03.1999. Breach of this contract is alleged by both the parties in performance of the terms and conditions thereunder which has lead to this action by the respondent against the appellants.

5. The specific case set up by the respondent in the plaint was as under:

(a) The appellants failed to hand over a specific work site to the respondent after delineating the parameters of the work drawing the center point and failed to provide a sketch to enable him to plan his work within the time frame settled in the agreement. Therefore, it was a fundamental breach and the site and the sketch were settled only a month later which lead to delay in execution of the work, making the respondents to keep the labour continued, engineering foreman, work materials and workmens’ sheds idle. The respondent did inform the same in his letter dated 04.04.2002 marking copies of the same to the 2nd appellant. By 20.02.1999 the respondent executed the work worth Rs.1,91,328-21 ps., which was not immediately paid when due and it was paid in three different instalments. Though the actual work turned out was worth Rs.2,51,000/-, M-book entries were maintained only to a tune of the above sum mischievously and thus defrauded the respondent of Rs.59,672/-. However, the appellants determined the contract on 30.01.2002 under clause 60(A) of the P.S. to APDSS unlawfully and without justification.

(b) Seven claims in all were raised by the respondent on account of the interest payable for delayed payments even though the appellants were required to make such payments fortnightly or monthly of submission of each bill, at the rate of 24% p.a. Second claim pertains to the amount withheld and pooled by the appellants of Rs.14,350/-towards further security deposit which was due for payment on 01.12.1999 on which he is also entitled for interest at 24% p.a. from 01.12.1999 to 31.03.2005 of Rs.14,063/-and in all Rs.28,413/-. Third claim is in respect of Rs.59,672/-that was not paid to the respondent for the work done, which is payable with interest at 24% p.a. and thus in all Rs.1,10,989-92 ps. Claim no.4 is in respect of overheads for establishment, salaries etc., in maintaining site office as well as regular office with interest thereon, in all Rs.1,41,504/-till date of the suit. Fifth claim is in respect of anticipated loss of profit at the rate of Rs.1,41,504/-computed at the rate of 15% on the total value of the contract. Sixth claim relates to retention of earnest money deposit liable to be repaid with interest and in all Rs.43,000/-. Seventh claim is for Rs.50,000/-for unjust determination of the contract.

(c)Thus, the respondent claimed the relief against the appellants and to pass a decree in his favour.

6. The 3rd appellant filed a written statement opposing the claim of the respondent adopted by the appellants 1 and 2.

(a) The specific contention of the appellants in the written statement was