IMPORTANT POINT
Section 70 of Contract Act, 1872 comes into operation only in absence of contract.

Vikash Jain, J.—The present writ petition has been filed for the following reliefs—

I. “For commanding and directing the concerned respondents to pay the petitioner a sum of Rs. 3,04,05,285/- only with regard to following items, after closing the agreement No. 01/CAMP/Dy. PM/PATNA dated 30.01.2006, without imposing risk and cost upon the petitioner because the delay is not attributable upon the petitioner for which, only respondents are responsible.

(a) Claim Bill for extra lead involved in carriage of loading from stockyard of Railway upto 15.04.2008.	Rs. 2,00,37,565/-
(b) Withheld money against forest royalty	Rs. 3,67,655/-
(c) Withheld money deduction against running account bill	Rs. 2,00,000/-
(d) Bill for work done, not yet measured	Rs. 18,00,000/-
(e) Entire Security Deposit Amount (as deducted from the bill of the petitioner	Rs. 80,00,000/-
Total	Rs. 3,04,05,285/-

II. For further directing the concerned respondent to pay the escalation prices of the materials and labour cost etc. on account of delay due to handed over the North Bank-Sonepur site on 10.02.2008.

III. For further directing the concerned respondent to consider the claim of the idle charges of machinery and vehicle and t pay a sum of Rs. 63.00 lakhs (approx) for the said claims.

IV. For further commanding and directing the concerned respondent to pay the interest @ 18% per annum upon the said amount from due date and till the date of its realization.

V. For pass such an order or orders for which the petitioner is entitled under the law in the facts and circumstances of this case.”

2. At the outset itself learned Senior Counsel Mr. Rajendra Narain confines the writ petition with respect to prayer no. 1 (a) for payment of Rs. 2,00,37,565/- towards extra leads involved in carriage. The remaining prayers are accordingly rejected as not pressed.

3. The short facts of the case according to the petitioner are that Agreement No. 01/CAMP/Dy. PM/PATNA dated 30.01.2006 for a value of Rs. 17,65,14,100.00 was entered into between the petitioner firm and the U.P. State Bridge Corporation Ltd., (hereinafter referred to as ‘the UPSBCL’) (respondent no. 1) for construction of Guide Bund, slope pitching and launching apron on north and south side of Rail Ganga Bridge, Patna towards upstream and downstream sides as per drawing and specification. The said work had been awarded to UPSBCL by the East Central Railway under a separate agreement executed between them. The UPSBCL in turn awarded the said work to the petitioner as its Sub-contractor. The petitioner was, inter alia, required to carry supplied materials like boulders from the stacking yard to the site of work at it own cost. Certain clauses of the General Conditions of Contract (GCC) forming part of the agreement may be reproduced hereinbelow for the sake of convenience—

30. Boulders required for the apron and pitching work will be supplied free of cost by department from its stacking yard shown n the CE©/GB drg. No. 3-2002 and 4-2002 enclosed. They will have to be taken over at the stacking yard and transported by the contractor at his own cost to the site of work. The rates quoted by contractor for items involving department boulders should include the cost of loading, unloading, re-handling, transporting carriage with all lead, lift and descent. The contractor at his own cost shall return and handover at supply points the departmental materials, which are rendered surplus to the requirement. The Corporation shall not be responsible for the loss and damage of materials during transit, from the point of delivery to be made by the Railway to the site of work.

36. The boulders required for the work will be handed over to the contractor in the boulder stacking yard after joint measurement by