Back
Gujarat High Court
Judgename :DEV KANT TRIVEDI, K.M.MEHTA
CHIEF SECRETARY THE STATE OF GUJARAT GANDHINAGAR - Appellant
Versus
KOTHARI AND ASSOCIATES - Respondent
First Appeal 34 of 1992
Decided On : 07/30/2003
General and Special damages in relation to liability, general damages are those which arise naturally and in the normal course of events; whereas special damages are those which do not arise naturally out of the defendants breach and are recoverable only where they were in the reasonable contemplation of the parties at the time they made the contract.
[Para 6.7D]
In relation to pleadings, general damages are those which will be presumed to be the natural or probable consequence of the wrong complained of, with the result that the plaintiff is required only to assert that such damage has been suffered, whereas special damages refers to those losses which must be specifically pleaded and proved.
[Para 6.7E]
(b) Limitation Act, 1963 (Central Act 36 of 1963) - Breach of Contract - Claim for damages - Successive breaches but suit filed from the last breach committed - Even otherwise the suit is filed within three years from the date of return of security deposit - Therefore, suit within period of limitation of three years.
The present suit is based on breaches committed by the appellant i.e. successive breaches and the suit is filed from the last breach committed and not based on each cause of action. Even otherwise the suit is filed from the date of return of security deposit which deposit was released on 27.1.1982 i.e. last payment of work done. The suit has been filed on 25.1.1985 i.e. within the period of three years from the last payment. Therefore, the suit is only within the period of limitation.
[Para 6.7J]
(c) Contract Act, 1872 (Central Act 9 of 1872) - Sec. 70 - Claim under - On account of change in item No. 4 i.e., cement lining instead of brick lining - The said work was carried out by the plaintiff reluctantly and under pressure of the department - The plaintiff has claimed Rs. 1,22,490 on account of difference in rate - The plaintiff has led necessary evidence in support of his claim - The trial Court has, therefore, rightly awarded the said amount.
The plaintiff has claimed amount of Rs. 1,22,490/- on account of change in item No. 4 instead of brick lining. The plaintiff has stated that the tender rate for the brick lining was Rs. 18.76 per sq. mt. Rate as per Government estimate Rs. 26.07 per sq. mt. Therefore, the difference of rate is Rs. 7.31 per sq. mt. Total quantity of work done in cement concrete lining 16,756.62 sq.mt. Amount to be recovered worked out to Rs. 1,22,490.00 (16,756.62 sq.mt. x 7.31). According to the plaintiff as per the terms and conditions of the contract, they were to provide brick lining but due to delay in the work in the year 1980, there was shortage of coal and also the department was insisting to get the said work executed within the said working season and, therefore, to get the work executed earlier, the department called upon the plaintiff to complete the work with cement, concrete lining 10 c.m. thick and wherever possible the work was to be completed by providing brick lining and accordingly, the plaintiff had proceeded with the work of concrete lining which was non-tendered item and, therefore, the same was an extra item not contemplated within the terms and conditions of the contract. The said work was carried out by the plaintiff reluctantly and under pressure from the department and the plaintiff has not been paid the concrete rate. Therefore, the plaintiff is entitled to the said amount as calculated above. The plaintiff has led necessary evidence in this behalf and in our view the learned Judge has rightly awarded the amount in view of Sec. 70 of the Contract Act as the contractor has done the work. Admittedly, the plaintiff is not reimbursed for the said work by the Government.
[Para 6.16]
(d) Contract Act, 1872 (Central Act 9 of 1872) - Sec. 73 - Damages - Claim for interest for non-payment - Plaintiff has claimed interest on amount under claim items No. 1 to 12 - He had served statutory notice on defendant on 7.8.1983 and on account of non-payment has claimed interest from said date - The Court has rightly awarded interest at the rate of 12 percent per annum from the date of legal notice.
The plaintiff has claimed Rs. 12,46,702/- on account of interest on the claims Nos. 1 to 12. The total additional amount is Rs. 13,61,574.20 ps. The plaintiff has claimed interest from 7.8.1983 to 25.11.1985. The learned trial Judge has granted interest at the rate of 12% per annum from 7.8.1983 to 25.11.1985. For claiming the said amount the plaintiff has stated that he has finished the work on 20.6.1980 and the suit has been filed on 25.11.1985. He has stated that final bill is paid on 1.1.1982. The plaintiff has vide letter dated 5.3.1982 called upon the defendant for making payment of all the 12 claims. The details thereof are submitted by the plaintiff on 5.3.1982 and, therefore, the plaintiff is entitled to interest from that date. The plaintiff has also served legal notice on 7.8.1983 on the defendant. The learned trial Judge has given interest from 7.8.1983 from the date of the statutory notice till filing of the suit i.e. on 25.11.1985. In our view the learned trial Judge was right in awarding interest on that amount.
[Para 6.21]
(e) Contract Act, 1872 (Central Act 9 of 1872) - Sec. 73 - Damages - Breach of contract - Quantum - Damages must commensurate with the injury sustained - Award of damages is compensatory and not retributive.
It is the fundamental principle of damages for breach of contract that these are awarded to place the injured party in the same position in which he would have been, had he not sustained the injury of which he complains. Hence, the damages must commensurate with the injury sustained. Damage may be defined as the disadvantage which is suffered by a person as a result of the Act or default of another. Damages are compensation for natural and probable consequence of the breach i.e. which could reasonably be foreseen. As a function of damages is compensatory and not retributive, this principle is applicable to torts as well as contracts.
[Para 6.7C]
(f) Contract Act, 1872 (Central Act 9 of 1872) - Sec. 73 - Claim of damages - Breach of Contract - Plaintiff was required to complete the work under contract within 18 months on or before 23.3.1978 but solely on account of defendant reasons the work got delayed by 27 months - Plaintiff, therefore, suffered damage itemised in plaint as 1 to 12 which he has proved by leading oral evidence, Ukai Formula and, therefore, he was entitled to decree his whole claim - Trial Court was justified in decreeing the plaintiff suit.
It is clear that the plaintiff was required to complete the work within 18 months i.e. on or before 23.3.1978 but the delayed work was actually completed on 20.6.1980. Thus, there was a delay of 27 months and the delayed performance was solely on account of defendants reasons. Therefore, the plaintiff had to incur extra cost by paying extra wages than that contemplated in the contract to the labourers and for the same, the plaintiff proved his case by leading oral evidence, Ukai formula at Exh. 63 and labour journal at Exh. 270.
[Para 6.8]
( 1 ) THE State of Gujarat, appellant, original defendant, has filed this appeal under Section 96 of the Code of Civil Procedure, 1908 against judgement and decree dated 4. 5. 1991 passed by the Civil Judge (S. D.), Anand, in Civil Suit No. 22 of 1985 filed by M/s. Kothari and Associates, original plaintiff. The learned Judge by his impugned judgement was pleased to partly decree the suit of the plaintiff. The learned Judge was pleased to direct that the defendants do pay to the plaintiff Rs. 13,61,574. 00 (Rupees thirteen lakh sixty one thousand five hundred seventy four) together with interest on the said amount at the rate of 12% per annum from 7. 8. 1983 till realisation of decretal amount.
( 2 ) THE facts giving rise to this appeal are as under:2. 1 m/s. Kothari and Associates, original plaintiff (hereinafter referred to as "the plaintiff") is a registered partnership firm carrying on the business of Engineers and Contractors. The Executive Engineer, Anand, Irrigation Division, Anand, invited tenders publicly for the work of providing lining to main canal mile 36 to 46 between 36 M and 41. 2 M Section I. The plaintiff submitted the tender form for the same. The State of Gujarat through Executive Engineer accepted tender of the plaintiff amounting to Rs. 33,71,213. 91 ps. against the estimated cost of Rs. 29,51,737/ -. Thereafter a regular agreement was entered into between the plaintiff in B2 form bearing agreement No. B2-1 of 1976-77 and the State Government. The said agreement has been produced at Exh. 234. One of the important conditions of the contract was Clause 45 which reads as under:"clause 45 - Condition to provide canal for carrying work of lining as order - The lining work to be done is in the existing canal from where the Kharif irrigation is being done. Probable period for kharif season is 15th June to 14th November. As such, the contractor will get normal working period of about 7 months from 15th November to 14th June next. Even during this period, the canal does not get dry, the contractor shall be liable to maintain the progress of work and the reason for not getting the canal dry, shall not be put forth for extension of time limit. "2. 2 the State Government, thereafter, issued work order on 24. 9. 1976 to the plaintiff and the work was required to be completed within stipulated period of 18 months i. e. on or before 23. 3. 1978. (Exh. 45 )2. 3 it is the case of the plaintiff that the contract creates certain mutual bilateral reciprocal contractual obligations inasmuch as certain reciprocal contractual obligations were required to be performed by the plaintiff and certain reciprocal contractual obligations were required to be performed by the Department. 2. 4 it was the case of the plaintiff in the plaint before the trial court that as there was a delay in handing over the site to the plaintiff by the Government, the plaintiff could not complete the work within the stipulated time. Hence due to delay on the part of the Government the plaintiff had incurred other expenditure and therefore the plaintiff had filed suit for damages on various grounds and hence the plaintiff filed suit for damages. The details of the said suit are as under:2. 5 the first season begins from 15th November 1976 to 14th July, 1977. Ordinarily, the site would be working for 213 days, if the same is made available in time. However, the site was made available on 15th January, 1977. 2. 6 it was further submitted that for construction of dam certain materials were to be supplied by the Government. The plaintiff stated that Material Supply Register produced on record which is described as USR Statement which at page 5 shows that the first issue of cement was made on 31. 1. 1977 of 2. 50 M. T. However, the work could not be commenced because the site was handed over as late as on 15. 1. 1977 and the cement was issued for the first time on 31. 1. 1977. In view of the same, the working days made available to the plaintiff
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
