ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)

1. This appeal has been filed by the original defendants, i.e. Food Corporation of India and its official, who shall be hereinafter referred to as 'FCI'. The appellants have challenged the judgment and decree dated 7.5.1999 passed by 5th Joint Civil Judge (S.D.), Panchmahal at Godhra in Special Civil Suit No.4 of 1989. 2. We may notice the brief facts, at this stage.

2.1. Respondent herein- M/s. Sorath Construction Company (hereinafter referred to as the 'Contractor') was awarded works contract by FCI. A contract was entered into between the parties on 24.2.1987. The works contract pertained to the construction of 25000 M.T. capacity convertible plinths with roads, drains and culverts for and on behalf of FCI at its site at village Bhumiya, District Godhra. Since the offer of the Contractor was found to be the most competitive, FCI awarded such contract after inviting tenders. Quotation of the plaintiff for executing the work was Rs.54,49,263.90 ps., which was accepted by FCI. As per the contract, work was to commence on 20.3.1987. Tenure of work being 12 months, construction was to be completed on or before 19.3.1988.

2.2. It is the case of the Contractor that on account of various breaches, by FCI, execution of work could not be completed. Principally, the grievance of the plaintiff was that FCI did not supply cement as promised in the contract. The plaintiff also complained of site not being available and also detailed plans not provided by FCI in time. In respect to these aspects, we would advert to at later stage. At this stage, we may notice that the main reason put forth by the Contractor for delay in work was non-availability of water. This was the bone of contention between both the sides, hotly contested before the Trial Court and before us.

2.3. The case of the plaintiff was that due to serious scarcity of water, sufficient supply of water was not available for construction. Construction required sufficient and regular supply of water. Since the Contractor could not arrange for such water due to scarcity,it was the duty of FCI to do so. Since FCI failed in supplying water, construction could not be carried out with sufficient promptness.

2.4. Main stand of the plaintiff Contractor before the Trial Court was that as per the terms and conditions of the contract, in case, the Contractor failed to raise sufficient quantity of water, required for construction, FCI had to provide the same. Through various letters written to FCI, the Contractor complained about non- availability of water. It was on this basis that FCI agreed to extend time limit for completion of the work by a period of three months. However, such extended period also ended in June 1988, by which time, there was no possibility of rainfall and consequently, non-

availability of water in a scarcity hit year.

2.5. The case of the FCI was that the Contractor from the beginning did not carry out the construction as per the schedule. Progress of the work was extremely slow and completely unsatisfactory. The Contractor had suspended work on more occasions than one despite availability of water. Finally, when the work was suspended on 4.4.1988, FCI, after issuing show cause notice and giving opportunity of being heard to the Contractor, rescinded the contract.

2.6. On account of cancellation of the contract and forfeiture of security deposit, the Contractor approached the Trial Court by filing Special Civil Suit No.4 of 1989. He claimed Rs.21,73,016.20 ps. by way of damages and different claims against FCI. FCI also raised counter-claim primarily on the ground that because of the conduct of the Contractor and breaches of the terms of the contract on his part, FCI had to reissue tender and fresh tender had to be awarded at higher rates. FCI, therefore, put forth a counter-claim of Rs.17,02,683.75 ps.

2.7. The Trial Court raised following issues:

(1) Whether plaintiff proves that the suit amount remaining outstanding f