1. This is a petition under Section 115 of the CPC for revising the order dated 26.07.2014, delivered in Title Suit No.11/2014 by the Civil Judge (Senior Division), Court No.1, Agartala, West Tripura.

2. The petitioner herein, namely Hindustan Steelworks Construction Limited instituted a suit for declaration that they are entitled to a sum of Rs.5,00,56,231 for the damage they suffered for deliberate and wilful negligence of the respondent in performing his Part- of the “contract” being the excess payment received by the respondent, the value of the balance materials issued to him, hire charges for the use and utilisation of the steel plates and another sum of Rs.65,26,265 as the excess payment made for execution of the balance work by another agency with interest from 25.06.2013 till date of payment at 18% per annum.

3. The respondent also filed another suit, being Title Suit No.01/2014 in the same court of the Civil Judge, Senior Division, Court No.1, West Tripura, Agartala, seeking declaration that the oral agreement with the “go ahead letters” dated 30.07.2012 and 03.08.2012 and fixing of “risk and cost” condition is not enforceable and illegal. As such, the petitioner herein (the defendant No.1 in the suit) is liable to pay the respondent herein (the plaintiff in the suit) at the negotiated rate and also to compensate the loss suffered by the respondent for “illegal rescission” of “the contract” by payment of 20% on the balance work in the two contracts (Part-II and Part-III) on the estimated cost respectively Rs.9,52,78,000 and Rs.8,81,24,000 and, thus the respondent herein calculated the loss amounting to Rs.5.7 crores in all.

4. It is not in dispute that the petitioner herein had been engaged for execution of the work of covering some of the big drains within the Municipal area of Agartala town as a Part- of the beautification scheme, under the name : “Construction of RCC cover drain in Central Zone of Agartala Municipal area”. The petitioner was entrusted with the entire work, but in turn, they engaged the other contractors. According to the respondent, “under their supervision” the respondent and the petitioner entered into the agreement containing the conditions in detail. The respondent has stated that “no agreement was signed” and according to the bidding documents the work was not executable at that stage. But, the petitioner suddenly issued two “go ahead letters” in respect of two separate contractors as mentioned therein. One is dated 03.12.2012 and the other is dated 30.12.212. By the said letters the respondent was asked to start both the works (Part-II and Part-III) immediately.

According to the respondent, he then mustered all the infrastructure, purchased valuable machineries and collected manpower for execution of those works. The respondent has further stated that the materials were collected at the site and in compliance with the requirement under clause 3.3.8 of the bidding documents, two valuable equipments, namely (i) one set Cement Concrete Mixing Batch plant and (ii) two nos. RMC Mixer, costing about Rs.1.5 crores were purchased for execution of the contract work, which was scheduled to be completed in June, 2014. But, the plaintiff could complete one-fourth of the assigned work in Part-II, while for want of site the work in respect of the other contract could not be started. The respondent has further stated that for his illness he could not execute the work in the expected pace. On 03.07.2013, he received a letter of caution from the petitioner for resuming the work within 48 hours which was stopped for a pretty long time, else the contract would be rescinded in terms of clause 109 of the General Condition of Contract (GCC) and the balance work would be executed at the respondent’s risk and cost.

5. On 06.07.2013, the petitioner asked the respondents to be present for a joint measurement of the executed work, failing which the ex Part-e measurement would be taken, which would be again bind