JUDGMENT :

1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') takes exception to the judgment and decree passed in Special Civil Suit No.587 of 1988 by the learned Joint Senior Civil Judge, Vadodara (learned trial Court) dated 28.02.1997, whereby the suit filed by the respondent has been partly allowed and the appellant is directed to pay Rs.4,36,243/- along with 18% interest from the date of the suit till realization along with a sum of Rs.39,214.80/-.

2. The appellant is the original defendant and respondent is the original plaintiff. For brevity, they will be referred to as per their status before the trial Court.

3. The brief facts of the case, in a nutshell are as under:-

3.1 The plaintiff filed a suit for recovery of Rs.5,27,124.35/- from the defendant along with 18% interest per annum from the date of the suit till realization and with the averment that the plaintiff is a registered partnership firm and is a registered contractor approved in a list maintained by the Public Works Department (PWD, in short) as well as by the Gujarat Housing Board (GHB, in short).

3.2 In response to the tender floated by the GHB for construction of 284 TS under LIGH at Gotri, Vadodara, plaintiff applied and since his rate found competitive, the tender submitted by the plaintiff was accepted on 29.12.1981.

3.3 As per the terms and conditions of the tender, the plaintiff was required to pay a security deposit for due performance of the contract. Upon receipt of intimation, according to plaintiff, he paid Rs.45,902/- towards the security deposit initially and as per the terms and conditions, it was agreed to pay further Rs.45,902/- by deducting from the running account bill. Thus, in all plaintiff owes to pay Rs.91,804/- towards security deposit. The formal agreement was executed between the parties and consequently, plaintiff was issued a work order for construction of LIGH at Gotri commencing from 21.01.1982 for a period of 18 months. The work was, therefore, to be completed before 31.07.1983.

3.4 The work, which was to be carried out, was amounted to Rs.39,93,430.50/-. Plaintiff claimed that the work contract given to the plaintiff creates bilateral and reciprocal mutual promises and obligations and some of them were first to be performed by the defendant and consequent to the performance by the defendant, plaintiff was required to perform his part of the reciprocal contract. It is governed by Section 52 of the Indian Contract Act, 1872 (hereinafter referred to as the ‘Contract Act’).

3.5 Plaintiff claimed that at the instances of the defendant, hindrance, hiccups and delay occurred in performing the part by plaintiff, which is the reciprocal promise, and thus, plaintiff could not complete the work within stipulated time period. Various reasons are stated by the plaintiff in para 6 of the plaint for non-completion of the work within the stipulated time period.

3.6 The plaintiff, due to the various circumstances, could not complete the work in the given time period, and therefore, he sought an extension for completion of the work. The extension was duly accorded by the Gujarat Housing Board till its completion i.e. 28.07.1984.

3.7 On the basis of the aforesaid averments, plaintiff preferred various claims in para 7 of the plaint for recovery of Rs.5,37,124.38/- along with interest.

3.8 Claim 1(A) was preferred for recovery of Rs.46,480/- on the ground that the claim was linked to item No.7 of the tender contract for 15 “Dia mm ‘A’ class GI pipeline with specials”. Plaintiff claimed that these charges consists of cost of ferrale and it is made from gun metal and 7 kinds of valve. Since it was not a GI material and was not covered under the tender item, the plaintiff claimed that, therefore, the charges for fixing the same was also not forming the part of the tender contract. Also, to fix the valve, the plaintiff had to dig the land. It was a special job. Similarly, for the cost of 0.5 MT o