CHHANGANI, J.—In Civil Suit No. 2/1961 the plaintiff claimed a decree for Rs. 28,907.44P. The learned District Judge, Kota passed a decree of Rs. 17,340.26P and dismissed the rest of the suit. It is against this decree that the defendant State has filed this appeal for the dismissal of the entire suit and the plaintiff-respondent has cross-objected and has claimed an additional decree for a sum of Rs. 6,835.29 P.

2. For the construction of Kansuan Aqueduct situated in Tehsil Ladpura, District Kota, the tender dated 29 9-1954 of the plaintiff was accepted by the Executive Engineer by his letter dated 29-1-1955. An agreement No. 26 of 1954 55 to that effect was executed between the parties. In terms of the agreement, the work was to be completed by the plaintiff contractor upto 9-1-1956. According to the plaintiff, there were heavy monsoon in Rajasthan in the year 1955 and on account of that earth filed on 3-1/2 bays and behind the abutment and guide wall was washed off sometime in the month of August, 1955 and had caused damage and delayed the completion of the work. However, the plaintiff continued the work. He also applied for the extension of time. The extension was not formally granted, but he was allowed to continue the work. The plaintiff also pleaded that the officers of the defendant State failed to do the dewatering of the foundation in time and they could not take a decision for long as to whether the bed of the canal was to be cement plastered or to be constructed by cement concrete. However, the work was completed on 8th March, 1957. The plaintiff was paid all the running bills less the security deposit in terms of Cl. 1 of the agreement. By way of security deposit a sum of Rs. 37,503/- remained deposited with the Department. The final bill was also prepared for a sum of Rs. 4,164/- less 10% security deposit, but it was not paid. The plaintiff thus claimed a refund of Rs. 37,503/- and the amount of Rs. 3,748/-of the final bill, in all Rs. 41,251/-. The Public Works Department [Irrigation] though accepted the amount, but claimed to deduct a penalty of Rs. 15000/-alleged to have been imposed by the Chambal Control Board in its 34th Meeting held at New Delhi on 9.8.1958. The Department further claimed a deduction of Rs. 10,198 44 P. After having made this deduction, the defendant paid to the plaintiff in September, 1959 a sum of Rs. 16,052.56 P. The plaintiff represented the matter to the Department, but having failed, he instituted the suit for the recovery of Rs. 25,198.44 P., after having served the statutory notice under sec. 80 of the Code of Civil Procedure In addition to the above sum, he has also claimed Rs, 3,709/-by way of interest at the rate of 6% per annum from 8 7.1958. Thus his claim in the present suit is for Rs. 28,907 44.

3. The defendant State did not dispute the facts stated above, but it pleaded that the plaintiff contractor was liable to pay compensation to the full extent of the security deposit amount in terms of the agreement, but the Chief Engineer [Irrigation] took a lenient view in the matter and recommended that a sum of Rs. 10,000/- be imposed as a penalty, but the Chambal Control Board determined the amount of penalty as Rs. 15,000/- and thus the Government was justified to deduct a sum of Rs. 15,000/- from the amount due to the plaintiff. It was also contended by the defendant State that a sum of Rs. 4,722/5/- was recovered from the contractor for the various materials issued to him and for the service rendered by the Department. As regards the sum of Rs. 5,475.11 annas it was, stated that it was withheld on account of various objections pointed out by the Audit. It, however agreed to pay the said amount. The State also disputed the right of the plaintiff to claim interest.

4. The learned trial Judge framed four issues and recorded the evidence of the parties. After hiving considered the evidence on record, the learned District Judge held under issue No 1 that the penalty of Rs. 15.000/- wa

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