1. This is yet another case wherein the dispute between the parties relates to contract of construction work. What is breach of contact? Incidentally, this case is also an illustration of plaintiff’s failure to prove the damages claimed by him for breach of contract.

2. The plaintiff claims damages mainly under the three heads. The plaintiff has summarized these claims thus:

(1) Rs. 1,37,202/: “on account of illegal recovery, extra expenditure, damages to the

materials, unnecessary shoring and strutting, work done but not

paid, diversion, security deposit etc.”

(2) Rs. 5,72,408/: “on account of loss of profit and idle establishment, over stay of

machinery, overhead etc.”

(3) Rs. 2,00,238/: “on account of interest over damages” (from 14.12.1987 to

24.4.1990)

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Total Rs. 9,09,848/

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3. Before referring to brief facts of the case, two words i.e. “abutment” and “pier” may be explained. In construction of bridge, pillars on each side/corner of bridge is known as “abutment”, while pillars placed in middle of the bridge are known as “piers”.

4. The defendant State had invited tenders for construction of bridge on Ankleshwar Hansot Highway on Amalkhadi. The plaintiff’s tender was accepted and initial deposit of Rs. 19,762/was deposited by the plaintiff towards security deposit. The contract was for Rs. 10,87,867/and the period of contract was from 21.3.1987 to 20.3.1988. The contract is known as B/1/37 of 198687. The work order was issued on 21.3.1987. It is the say of the plaintiff that as the work had delayed, he had called upon the defendant to revise the rates and to extend the period of contract. As the defendant did not pay any heed, the plaintiff had given a notice to the defendant on 25.5.1989 reiterating the aforesaid demands. Then, notice under Section 80 of CPC was given on 5.11.1989. Thereafter, Special Civil Suit No. 94/1990 was instituted praying decree for the above referred damages. The learned trial Court was pleased to dismiss the Suit. Hence, the present appeal.

5. The defendant filed Written Statement at Exh.25 denying all the assertions made by the plaintiff in the plaint. It is contended by the defendant that the contract could not be completed because of negligence and irregularity on the part of the plaintiff.

6. The parties have produced voluminous documentary evidence before the trial Court. It is exchange of correspondence. The plaintiff has produced 99 documents vide list Exh.99 and the defendant has produced 42 documents vide list Exh.209. The plaintiff has deposed at Exh.187 and one Mr. Patel, Deputy Engineer, has deposed on behalf of the defendant at Exh.215. No other oral evidence is led by the parties.

7. The findings of the learned trial Court may be summarized as under:

(1) The plaintiff is a registered contractor and is duly registered with the Public Works Department of the Government of Gujarat.

(2) Unless and until it is shown that the defendant has committed breach, the defendant cannot be directed to pay damages.

(3) From the voluminous documentary evidence, it is not possible to infer that the defendant has committed breach of contract.

(4) Quoting certain part of the cross-examination of the plaintiff, it has held that the plaintiff has miserably failed to prove, how much damages he has suffered.

(5) The say of the plaintiff about default committed by the defendant in handing over the site, design, drawings etc., is not possible to believe because the plaintiff could not have started the work of construction if such default is really committed by the defendant.

(6) The above submissions are in the nature of advancing contradictory theory by the plaintiff.

(7) Clause (13) of the agreement does support the say of the plaintiff that maps, drawings etc. are to be supplied by the defendant.

(8) In extension of time application/letter, the plaintiff also claims for price escalation. Clause (6) of the agreement does not provide for price escalation.

(9) By asking for price