The delay in the work was caused by the defendant and not by the plaintiff, leading to the invalidation of the termination of the contracts and the entitlement of the plaintiff to compensation and earnest money deposit.

Common Judgment: (M. Chockalingam, J.)

1. This judgment shall govern these two appeals namely OSA Nos.15 and 268 of 2002, the former at the instance of the defendant and the latter at the instance of the plaintiff in C.S.No.1331 of 1993.

2. The respondent/plaintiff has filed C.S.No.1331 of 1993, seeking declaration and other reliefs, with the following averments:

a) The plaintiff, a partnership firm, are engineering contractors. The defendant called for tenders for the work of suction well and pump house including all pipe connections and allied civil works under the Coimbatore Drainage Scheme. The tender of the plaintiff was accepted and the work was awarded to the plaintiff and the plaintiff was issued work order, dated 13. 1990. The plaintiff entered into an agreement dated 26. 1990, and the plaintiff also deposited Rs.10,750/-towards earnest money deposit and also furnished the details regarding security deposit and other particulars as early as on 4. 1990, but the defendant did not finalize the agreement, and the same was done only on 26. 1990. The plaintiff has completed 90% of the work and on the oral instructions of the defendants Engineers and with a view to keep up the progress of work, the plaintiff excavated the hard rock. The plaintiff was able to enter into a supplemental agreement only after a period of one and half years. The designs were also changed without any intimation to the plaintiff and this resulted in an excess of Rs.2 lakhs over the original agreement. Whenever the plaintiff demanded payment, the officials of the defendant gave false promise and the defendant at every stage, committed breach. The defendant was called upon to make necessary arrangements to dewater, but they did not do so, and it was done at the plaintiffs own expenses, and they did not make any claim for the same. The plaintiff was very co-operative and wanted to proceed with the work smoothly, but due to the attitude of the defendant, the plaintiff was put to great loss and hardship.

b) The defendant had called for tenders for construction of Anaerobic Lagoon and for providing in-let and out-let arrangement to anaerobic lagoon under Zone III of Coimbatore Drainage Scheme. The plaintiffs tender was accepted. The tender amount is Rs.16,09,3370. The plaintiff was also issued work order, dated 28.03.1990, and he deposited a sum of Rs.32,200/- as earnest money deposit and also a security deposit of 2% of accepted contract value. The site was not handed over properly to the plaintiff by the defendant to enable the plaintiff to proceed with the work. Because of the breach committed by the defendant, the plaintiff was able to start the work only by 17. 1990. The work could not proceed and had to be stopped because bed level for pond I and II was not fixed by the defendant and finally, the same was furnished by the defendant by letter dated 13. 1991. As per the agreement, the bills amount are to be paid within a period of 14 days and the bill amounts to the tune of Rs.1.60 lakhs for work done have not been paid to the plaintiff. Further, since it was insisted that consolidation must be done using only sheep foot roller, the plaintiff sought for amendment of original agreement and there was no action on the part of the defendant. The work was done under the supervision and surveillance of the official of the defendant and at no point of time, the work was found fault with. Nearly 65 to 70% of the work has been completed. The plaintiff came to know that the consolidated soil was purported to have been sent for testing and the test results were not communicated to the plaintiff.

c) The earlier bills of the plaintiff (upto L S V and part bill) were paid to the plaintiff. The defendants stand for not paying the legitimate bills of the plaintiff is unsustainable. It is not the case of the defendant that the work of the plaintiff was bad. The Superintending Engineer has also certified in the measurement book that the work is in accordan