JUDGMENT :

1. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (S.D.), Valsad on 16.12.1995 in Special Civil Suit No.16 of 1989, the defendant has preferred this Appeal under Section 96 of the Civil Procedure Code.

2. For brevity and convenience the parties are referred to herein as per their status before the trial Court.

3. The defendant has contended that the learned trial Judge has erred in holding that non-carrying out of work of Pump house amounts to breach of contract committed by the department. It is stated that even without the Pump house, the plaintiff could have carried out the other items in the contract in the absence of pump house. It is also contended that the plaintiff had not completed the work of fish Farm for which the site was provided within the stipulated time. It is also contended that the learned trial Court has erred in holding that the work of rolling and watering was to be carried out by the department. It is further contended that as per the terms of the agreement, the plaintiff was to carry out the work of watering and consolidation. It is also contended that the trial Court has committed error in holding that the department could not have imposed penalty under clauses 2 and 3 as well as holding that the time was not the essence of the contract.

3.1 It is also submitted that error has been committed by the learned trial Court in holding that the department has failed to prove that the plaintiff did not complete the work within the stipulated period due to its own fault. It is the contention of the defendant that the learned trial Court has not properly interpreted Exh-55 letter dated 4.1.1988 written by the plaintiff, which clearly indicates that the Contractor has abandoned the work and, therefore, he is not entitled to any damage. The defendant has also stated that the observation of the learned trial Court regarding entitlement of the plaintiff to the tune of Rs.1,04,905/- towards overstay and overhead account as well as Rs.52,000/- on account of loss of profit and Rs. 2 lakhs towards work done and not paid as well as awarding interest at the rat of 15% to the plaintiff. According to the defendant, the learned trial Court has failed to appreciate that the plaintiff itself has committed breach of the contract by not completing the work within stipulate period mentioned in the contract agreement and, therefore, he is not entitled to any compensation. According to the defendant, the learned trial Court ought to have held that that the plaintiff has abandoned the work as per letter Exh-55.

3.2 It is further contended that the learned trial Court has failed to appreciate that Section 13 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 puts a bar on the Civil Court to deal with or decide any question, which the Tribunal is empowered to deal with and decided uner the said Act. It is contended that the learned trial Court has committed jurisdiction error as well as did not appreciate oral as well as documentary evidence in proper perspective and wrongly passed the impugned judgment and decree in favour of the plaintiff and against the defendant.

4. Heard Mr. Soaham Joshi, learned AGP for the Appellant and Mr. B.S.Patel, learned Senior Counsel with Mr. C.B. Patel, learned advocate for the respondent-original plaintiff through videoconferencing.

5. Mr. Joshi, learned AGP has vehemently submitted the same facts which are narrated in the Appeal memo. While referring to the oral evidence on record, he has submitted that there is no dispute as to the execution agreement for carrying out the work in question. He has submitted that the work was to be completed in a stipulate period. However, the plaintiff has not completed the same and has abandoned the work by letter at Exh-55. Mr. Joshi has also submitted that as the plaintiff did not com