In turnkey contracts, payment is contingent upon the completion of work, and delays caused by indecision of the defendants do not negate the contractor's entitlement to payment.

JUDGMENT :

1. Challenge in this appeal is thrown to judgement and decree dated 8th November 2005, which has been passed by the court of Principal District Judge, Srinagar, in a civil suit titled as Mohd. Yasin Wani v. State of J&K and others, and setting-aside thereof is sought.

2. I have heard learned counsel for parties and considered the matter.

3. It is case of appellants that for design, supply, launching erection, testing, commissioning, including deck slab of steel trussed/girder super structure through type 2x25M (Clear Span) Bridge on Sindh Nallah near Prang on the Link Road to Power Canal with allied civil works, tenders notice was floated. All the works were to be executed on turnkey basis. Payments were to be made only after works are completed in all respects and handed over after test and checked by concerned agencies. Respondent no.1, as is also stated by appellants, participated in tender process. His tender was found lowest. Accordingly, contract was allotted to him. There were other certain allied works with above work which were also to be allotted to contractor. Agreement was executed. Work was to be completed within 09 months. Instead of completing work, contractor asked for payments. Contractor stopped and left the work.

4. Contractor/respondent filed a civil suit before the Trial Court. He prayed for a decree for recovery of Rs.86.00 Lacs along with interest from December 1996 till final realization.

Defendant no.4 – Executive Engineer, Civil Construction Division-II, JVGHRD Ganderbal, in which it was stated that drawing of formal agreement was delayed by contractor for which measures were employed from time to time and that till the work was fully test commissioned to its designed load of Class-A, the contract money did not become due and therefore plaintiff had no right to claim enforcement of contract which was violated by him. It was also stated in written statement that for executing the work of construction of new bridge, old bridge was to be dismantled and Rs.1.5 Lacs was given to contractor for dismantling old bridge and timber thereof was obtained by contractor. Plaintiff committed breach of contract and agreement.

5. Taking into account rival contentions of parties, the Trial Court framed following issues for adjudication:

(i) Whether plaintiff is entitled to an amount of Rs.86.00 Lacs with interest and damages from defendants on account of having completed the construction of allotted works? OPP

(ii) Whether plaintiff is liable to pay an amount of Rs.4.88 Lacs to defendants as cost of timber? OPD

(iii) Whether plaintiff has not completed the allotted works, if so, what is its effect upon the present suit? OPD

(iv) Whether no notice u/s 80 CPC has been served upon the defendants? OPD

(v) Whether plaintiff has no cause of action against the defendants? OPD 

(vi) Relief.

6. Plaintiff/respondent, on direction of the Trial Court, produced and examined the witnesses, namely, Ali Mohd. Mir; Mohd. Amin Bhat is A- Class contractor; Sonaullah Lone; Mohd. Nayeem; Showkat Ahmad Shahdad; besides plaintiff himself. Defendants also produced and examined the witnesses, namely, Ghulam Jeelani; Mohd. Yousuf Zargar; Ali Mohd. Parray. By virtue of impugned judgement and decree, the Trial Court has held plaintiff/respondent entitled to recovery of Rs.86.00 Lacs from defendants along with simple interest @ 9% from the date of institution of the suit till realization of the decretal amount. Plaintiff has also been held entitled to Rs.10,000/- for having paid on watch and ward for the timber of the dismantled bridge. However, the Trial Court has made it clear that Rs.4.88 Lacs shall be deducted from the decretal on account of the timber of the old bridge allotted to plaintiff on auction basis.

7. Learned counsel for appellants has stated that the Trial Court has not considered this aspect of the matter that the contract was on turnkey basis and in a case where work is on turnkey basis, it is to be presumed that contract is to be c