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2011(4) ALL MR 497
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
S. C. DHARMADHIKARI & F. M. REIS, JJ.
M/s. Vijay Engineers & Developers – Appellant
Vs.
Suryadarshan Co-op. Housing Society Ltd. – Respondent
First Appeal No.266 of 2004 AND First Appeal No.267 of 2004
Decided on: 6th May, 2011
Contract Act, 1872-Section 73-Termination of contract-Contract for construction-Even after lapse of 24 months time limit, no work done by plaintiff-Period of 24 months passed in re-survey of land, change of zone and in obtaining necessary permissions-Said activities part of agreement-Terms of contract clearly states that time limit will start from date of obtaining all permissions-Plaintiff ready and willing to perform his part of contract-Termination of contract illegal.-All the aforesaid documents form the basis on which the plaintiffs were allotted the work of infrastructural development. On perusal of the said document, Court finds that whilst executing the agreement dated 21.1.1993, the cost of the infrastructural development was fixed at Rs. 7,65,904/-with 90% escalation which works out to Rs. 14,55,210. The letter dated 13.3.1993 and the said agreement further categorically confirm that the plaintiffs had obtained the sanad, completed the re-survey of the land and done the charge of zone. The said activities were part of the infrastructural development to be conducted by the plaintiffs as per the said work order. Hence the contention of the senior counsel for the defendants and the plaintiffs failed to do any work in the suit land for development after obtaining the work order cannot be accepted. So also the contention of the defendants that the development had to be completed with 24 months of the contract is contrary to the agreements which contemplate that the time starts from the date of receipt of permission with reasonable extensions. The evidence of the plaintiffs as well as the admission by DW1 and DW 3 Engineer examined by the defendants further corroborates the claim of the plaintiffs that the infrastructural development was substantially completed by the plaintiffs.
From the foregoing evidence on record and the documents produced by the plaintiffs Court finds that there was no justification for the defendants to terminate the agreement as records suggest that the plaintiffs had pursuant to the contract executed substantial works for the purpose of developing the suit land. The contention of senior counsel that the plaintiffs were not ready and willing to perform their part of the agreement and there are no pleadings to that effect cannot be accepted as there are specific averments in the plaint to that effect at para 34 of the plaint. The said aspect has been corroborated by the evidence adduced by the plaintiffs as enumerated hereinabove. The trial Judge is as such justified to come to the conclusion that the defendants defaulted by illegally terminating the contract.
F. M. REIS, J. :- Both the above appeals are taken up together for final hearing as both challenge the same Judgment and Decree dated 13-8-2004 passed by the learned Civil Judge, Senior Division at Mapusa in Special Civil Suit No.102/1999. The parties shall be referred to in the manner they so appear in the cause title of the impugned Judgment. The Appellant in First Appeal No.266 of 2004 are the Plaintiffs in the said suit whereas the Appellants in First Appeal No.267 of 2004 are the Defendants in the said suit.
2. The Plaintiffs filed a suit on the ground that on 19-1-1989 the Defendants invited tenders through newspaper from Civil Contractors to develop the land purchased by the Defendants admeasuring an area of 14,300 sq. meters situated at Britona village of Village Panchayat area of Penha de Franca and surveyed under No.13/6 of village Penha de Franca which included infra structural development as also construction of houses for its members who were 31 in number. It is further the contention of the Plaintiffs that they submitted the tender to the Defendants and the contract for the said development of the said property was allotted to the Plaintiffs on turn key basis by its work order dated 6-3-1989. The Plaintiffs further contend that they got a portion of the suit property changed to settlement zone from the concerned authorities which took about two years as the Plaintiffs had to get the said land re-surveyed by the survey authorities which took another one year. The Plaintiffs contend that pursuant to the said work order dated 6-3-1989, the Plaintiffs prepared blocked level contour plans of the suit property so as to enable the authorities to change the land into settlement zone and the fees thereof for the portion of the said plans worked out to Rs.83,000/- out of which the Defendants paid Rs.41,500/-. RCC designs were also prepared for which the total fees incurred was Rs.11 ,000/ - which was not paid by the Defendants. Infrastructural development contemplated in the said order according to the Plaintiffs included carrying out of works such as road drainage, levelling of land, construction of culvert, development of wall, etc. The Defendants decided to develop the suit land as a group housing scheme under which infrastructural development and the construction of houses was to be simultaneously taken up for development by the Plaintiffs. The Plaintiffs further state that in terms of the said work order, the Plaintiffs were entitled for mobilization advance to the tune of Rs.10,00,000/- for commencement of the work for infrastructural structure development and a further sum of Rs.15,75,000/- as the first instalment before construction of houses with 90% escalation thereof. It is further their case that the Defendants expressed their inability to pay mobilization advance of Rs.10,00,000/- and as such they offered to the Plaintiffs a suggestion whereby a portion of the suit land which was in excess after providing the land for houses for all the 31 members, would be given to the Plaintiffs for development on their own account and appropriate receipts thereof so as to meet the infrastructural development costs of Rs.14,55,217.60 for the suit land. The proposal was accepted by the Plaintiffs and the agreement for development was executed on 21-11-1993 between the parties hereto. The Plaintiffs contend that Defendants also agreed to accept the escalation contemplated in the work order dated 6-3-1989 as incorporated in the said agreement dated 21-11-1993. The Plaintiffs further state that the total area given to the Plaintiffs by the Defendants for the said development towards the costs of the said infrastructural development costs was totally admeasuring an area of 2,800 sq. meters as identified in Clause 2 of the said agreement. It is further their case that the Defendants took about one year to decide about the type of houses to be constructed in the said suit land to its members though 10 members out of 31 mem
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