B. K. MEHTA, S. H. SHETH, J.

( 1 ) THIS is an appeal by the State of Gujarat against the judgment and decree of the City Civil Judge Ahmedabad dismissing the suit of the State Government for recovery of Rs. 36 781 paise after adjusting an amount of Rs. 11 536 paise being the amount of security deposit against an amount of Rs. 48 318 paise being the price of the materials namely steel cement and steel-wire as well as empty cement bags supplied to the respondent-contractor The suit has been dismissed by the learned City Civil Judge on the short ground that the suit was premature in view of the provision contained in Clause 30 of the suit contract requiring an aggrieved party to approach the Superintending Engineer before taking any legal action. The learned City Civil Judge has on the merits of the case found that the State Government was entitled to recover Rs. 36 781 paise from the respondent-contractor. It is this judgment and decree which is the subject matter of this first appeal before us.

( 2 ) AT the time of hearing of this appeal Mr. Chhaya the learned Assistant Government Pleader appearing on behalf of the State Government urged that the learned City Civil Judge was clearly in error in holding that Clause 30 of the suit contract precludes the aggrieved party under the contract to approach Civil Court without first referring the matter in dispute to the Superintending Engineer. In submission of Mr. Chhaya the provision contained in Clause 30 should not be construed either as a certification clause or as a clause providing for arbitration as a condition precedent to the filing of the suit. In support of his contention Mr. Chhaya relied on the decision of the Division Bench of this Court consisting of J. M. Sheth and B. K. Mehta JJ. (Per J. M. Sheth J.) in Appeal No. 34 of 1970 from Order with Civil Revision Application No. 298 of 1970 with Civil Revision Application No. 299 of 1970 decided on 19th/20th January 1971 He therefore urged that the learned City Civil Judge was therefore in error in dismissing the suit in spite of his finding that the State Government was entitled to recover Rs 36 781 paise from the respondentcontractor.

( 3 ) THE rival cases of parties be stated for appreciating the contention of the learned Assistant Government Pleader It is not in dispute that the respondent-firm was entrusted with the work of constructting 18 constabulary quarters at the Head Quarters Police Lines at Ahmedabad on the terms and conditions contained in the contract document Ex. 50. The work was commenced by the respondent-firm in the month of June 1956 and it submitted running account bills from time to time and payments were made to it accordingly the final bill was prepared and the respondent-firm was asked by letter dated November 2 1960 to attend at the office of the Deputy Engineer Shahi Bag Division Ahmedabad to finalise the bill. The partner of the respondent--firm requested the department to defer settlement of Bill till November 20 1962 The Deputy Engineer of the State Government by his letter of December 4 1962 informed the respondent-firm about the quantity of cement and steel not accounted for in the running account bills as also about the fact that empty cement bags were not returned by the respondent-firm The respondent-firm was accordingly informed by the letter of December 18 1962 to which the respondent-firm by its letter of December 25 1962 gave a false and evasive reply though the respondent-firm was asked to show the receipts for the return of empty cement bags the receipts were not produced and shown It was the case of the State Government that it supplied 498 tons of cement 95. 6 tons of steel and 0. 5t-3h-14 C. W. T. of steel-wires for the suit work through the Public works Department of the State Government and the quantity accounted for according to the State Government came to be Tons 353-1 Cwt of cement 64t-3h-00cof steel and the remaining quantity namely 144 Tons and 19 Cwt. of cement 31 C. W. T. To

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