A party may recover damages for breach of contract when the other party fails to fulfill its contract obligations, particularly regarding timely supply of materials.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present appeal is filed by the appellant – original defendant No.2 under Section 96 of the CIVIL PROCEDURE CODE against the judgment and decree dated 24.10.2005 passed by the learned Principal Senior Civil Judge, Civil Court, Gandhinagar (hereinafter referred to as “the trial Court”) in Special Civil Suit No.51 of 1997 (Old Special Civil Suit No. 96 of 1986) whereby the trial Court has allowed the suit and directed the original defendants to pay Rs.10,19,277/- along with the interest.

2. The original plaintiff – respondent No.2 herein is the company incorporated under the provisions of the Indian Companies Act, 1913 and carrying manufacturing of Pre-Stressed Concrete Pipes and also Civil Engineering Works relating to installation of pipe lines. The defendant No.2 is a statutory body established under the Gujarat Water Supply and Sewerage Board Act, 1978. By the said Act the work, assets, liabilities and benefits have been transferred from defendant No.1 to defendant No.2.

2.1 The defendant No.1 issued notice in August / September 1978, being Tender Notice for Bhavnagar Water Supply Scheme Shetrunji Pipeline Project for the purpose of providing, fabricating, laying and jointing of pre- stressed concrete pipes more particularly specified in the notice inviting tenders and the plaintiff submitted the offer for the aforesaid tender. Considerable correspondence, thereafter, ensued between the plaintiffs and the defendant No.1, by which various terms and conditions, as set out in the tender documents of defendant No.1 as also letter of ofÏcers of the plaintiff, were modified and mutually accepted. By a letter dated 27.12.1978, the defendant No.1 issued a work order to the plaintiff for carrying out the aforesaid project. The tender documents, the plaintiff’s letter of offer dated 13.09.1978 and the subsequent correspondence culminating in the Works Order dated 27.12.1978 collectively constitute the contract arrived at between the parties and are preferred to as "the Contract Documents".

2.2 That defendant No.1 had committed considerable default or delay in issue of the 1000 tons of cement such delay ranging from 1.1/2 months to 12 months after the issue of the work order, for which there was delay on the part of the defendant No.1 in issuing the said contract, the plaintiff had to incur additional costs by way of idle labour, interest and cost of raw materials. The damages incurred by the plaintiff amounted to Rs.2,94,000/- and, therefore, the plaintiff claimed the said amount.

2.3 That other outstanding dispute was in relation to the rate at which defendant No.1 were required to pay to the plaintiff for the excavation work under item'2 of Schedule "B". The total estimated excavation was 44,931 cm, the total quantity of excavation done was 39,156.95 cm i.e. the total excavation done was, in fact, less than the estimated quantity of excavation and there was no question of excess excavation. However, the excavation actually carried out was admittedly in harder strata of the soil and the same was required to be done at greater depths. Consequently, the plaintiff were required to be reimbursed for the same at higher rates as accepted by the defendants. There was no question of any alteration in/or addition to the original specifications, drawings, designs and instructions and, accordingly, clause 14 had no application whatsoever for the purpose of determining the rate applicable in respect of the excavation. The defendants, however, wrongly applied Cl.14 and purported to pay the plaintiff at the reduced rates prescribed in Clause 14. Applying the accepted rates for the actual excavation work done, the pla