A fundamental breach of contract occurs when one party fails to perform essential obligations, justifying claims for damages by the aggrieved party.

JUDGMENT :

BIREN VAISHNAV, J.

1. Both these appeals are filed under Section 96 of the Code of Civil Procedure. On being aggrieved by the judgement and decree dated 29.10.1996 passed by the 4th Joint Civil Judge (SD), Godhra, in Special Civil Suit No.54 of 1988, First Appeal No.1170 of 1997 has been filed by the State insofar as, the suit of the plaintiff (respondent in the appeal) has been partly allowed. First Appeal No.1606 of 1997 has been filed by the original plaintiff insofar as some of the claims were disallowed and though the decree prayed for was of Rs.44,01,542/-, the Trial Court awarded a decree of Rs.14,86,414/-.

2. Facts in brief are as under:

2.1 The appellant of First Appeal No.1606 of 1997 is a partnership firm and approved ‘A Class Contractor’. A work order was invited for construction of Halol Diversion on Godhra-Halol- Baroda road Section No.I. The tender was allotted to the plaintiff for an amount of Rs.30,741.32. The work order was issued on 20.02.1985 which was to be completed within 21 months on or before 20.11.1986. It was the case of the plaintiff before the Trial Court that the defendant committed a fundamental breach of the contract inasmuch as, it required working drawing, item wise program, possession of the land etc. were not handed over. The plaintiff therefore, filed the suit listing 29 claims as set out in the plaint. The Trial Court allowed some of the claims, whereas, some of the claims were disallowed. Hence, both these appeals.

3.Mr.Vivek Bhamare learned counsel appearing in First Appeal No.1606 of 1997 would submit as under:

3.1 Mr.Bhamare would submit that there was evidence on record to suggest that though the work was done, no payments were made. It was a specific case of the plaintiff appellant that tender documents were not handed over in time, technical drawings were not handed over, lands were not vacated by the land owners and therefore, various claims were made. Mr.Bhamare would take us through the evidence on each claim and submit that insofar as the claims which were not either entertained at all or partly allowed, the Trial Court had committed an error. With regard to each claim, his submission was as under:

Claim-1: Mr.Bhamare would submit that the amount to be awarded was Rs.1,76,400/- whereas the award amount was Rs.1,60,200/-. Exhs.162, 165, 166, were referred to and it was submitted that it was admitted by the witness Shri N.V.Patel in cross-examination that earth work was done. In other words therefore, once there was clear admission of the work done, there should not have been a short payment.

Claim-9: With regard to this claim Mr.Bhamare would submit that though the amount asked was Rs.1,60,000/-, awarded amount was Rs.80,000/- when it was an admitted fact that the contractor had carried out work of Rs.22,00,000/- out of Rs.30,00,000/- and therefore, 20% of the amount of the difference of the work would come to Rs.1,60,000/-.

Claim-14: This claim was also not granted by the Trial Court, Mr.Bhamare would want us to refer to Exhs.79 and 80 and submit that it was clearly stated in the cross-examination of the witness of the defendant Shri N.V.Patel that the plaintiff had suffered a loss due to non-receipt of the entire possession of the land for the road to be constructed. The Trial Court committed an error in holding that the claim was too general. The evidence on record indicated that earth work was done that there was carting and staking of metal sand soft murrum and earth work of which measurements were on record.

Claim-15: Where the claim was on account of loss suffered by the strike of Government Servants from 07.06.1985 to 19.08.1985, where it was claimed that the loss suffered was Rs.7,32,000/-, the trial Court awarded only Rs.5,47,500/-. Mr.Bhamare would submit that it was not disputed that the Government Servants were on strike and in accordance with clause-16 of the tender, trucks engaged for collecting metal, sand etc. were not operated and therefore the claim should ha