The main legal point established in the judgment is the court's power to remand a case for retrial if necessary, as provided under Order 41 Rule 23A of the Code of Civil Procedure.

1. The challenge in this appeal is to the judgment and decree dated 1/7/2008 passed by the learned Senior Civil Judge at Panaji, in Special Civil Suit No.23/2001/B. By the impugned judgment, the learned trial court has dismissed the suit filed by the appellant for recovery of an amount of Rs.01,24,80,832.56 along with interest under various heads.

2. The brief facts necessary for the disposal of the appeal may be stated thus; Under a work order dated 3/2/1993, the respondent had awarded a contract to the appellant for construction of “Aqueduct cum Pressure conduit”, across Kalna river at village Hassapur in Pernem Taluka, which is more specifically described in the plaint. The period for completion of work was 600 days excluding monsoon. The stipulated dates of commencement and completion of work were 18/2/1993 and 11/10/1995, respectively.

3. The material case made out in the plaint is that since inception there were certain breaches of the terms of the contract committed by the respondents which had resulted in delay, in completion of the work beyond the agreed dates. It was contended that although the work order was issued on 3/2/1993, the department was not able to mark the layout, as a discrepancy was noticed between the original tendered drawings and the actual ground conditions. The contract drawings were specifically modified after about 45 days. When the appellant commenced the actual execution of the work, the inspecting officer of the respondent found that soil bearing capacity at the location was too low and it needed further investigation. Accordingly, the department carried out soil investigation work for foundation of certain piers and it was only after this exercise was conducted over a period of 90 days, that the department gave approval for continuation of work. Subsequently the department had ordered to defer the work in connection with a crucial and important component of work, namely, the RCC well and sloppy portion of the RCC duct and after the commencement of the work, the respondent had decided to refer the contractual drawings for hydraulic studies to Maharashtra Institute of Engineering and Technology (MERI, Nasik). As a result of this, the entire work schedule of the appellant was adversely affected and the appellant was compelled to hold most of the establishment idle. Ultimately the drawing for sloppy portion of the Acqueduct was handed over to the appellant on 12/1/1995. The modified drawings for the well of Acqueduct, as per the recommendation of the model studies conducted by (MERI), Nasik with increase in depth of rocky strata were issued only on 27/4/1995 i.e. on the eve of the monsoon as a result of which the requisite excavation could be started only after monsoons. Even thereafter, the work was again obstructed as no details were available for well connection trough A-B which were finally provided on 4/1/1996. Thus according to the appellant, the major delay to the extent of 684 days was attributable to the respondent.

4. It was further claimed that as per the terms of the contract, the appellant was free to use wooden or steel supports for all casting of RCC items of work. However, in respect of some 15 metres spans (R-S & S-T), the second respondent insisted the appellant to use only steel truss in order to ensure structural safety. It was contended that the appellant had already erected wooden centering and shuttering, however, on account of the insistence of the second respondent was compelled to remove the said centering and shuttering and to provide for steel truss drawing for approval of the department in November 1994. On the request of the department a revised drawing was submitted on 16/2/1995. In May 1995, fresh drawings for the truss were supplied again on the eve of monsoons. As a result of this, there was yet another delay of 180 days.

5. It was then contended that t