The court affirmed that a contractor must complete work as per contract terms to claim payment, and failure to do so negates entitlement to revised rates.

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

This Regular First Appeal is filed by the appellant challenging the judgment and final decree dated 19.10.2019 passed in O.S.No.163/2013 by the learned III Additional Senior Civil Judge and JMFC at Hubballi.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants.

3. Brief facts, leading rise to the filing of this regular first appeal, are as follows:

4. The plaintiff filed a suit against the defendants for the recovery of money of Rs.1,56,61,745/- along with the interest at the rate of 18% p.a. from 01.04.2013, till the realization of the suit.

5. It is the case of the plaintiff that he is the Class-I Contractor and undertakes the contract for the construction of Government buildings and other major works on a large scale. The plaintiff had entered into an agreement with defendant No.3 on 23.09.1999 for the estimated amount of Rs.1,24,15,000/-. Defendant No.1, after price negotiation with the plaintiff, had accepted the tender with defendant No.3, at the lowest price of Rs.1,43,05,803/-. It is contended that the plaintiff had agreed to the construction work of a divisional workshop at Bagalkot. The date of commencement of work was considered from 25.10.1999 and the defendants had granted 18 months of time for completion of the work. The plaintiff has to completed the entire project on 17.10.2002, as per the terms and conditions of the said agreement. It is further contended that after completion of the work, the defendants have failed to settle the claim amount as requested by the plaintiff. The plaintiff issued a legal notice dated 10.04.2004 to settle the claim amount, but the defendants did not heed the said request. Hence, the plaintiff had filed an Arbitration Case No.1/2005. After hearing both sides, the trial court, allowed the petition and referred the matter to the Arbitrator. The order of the trial Court was challenged by the defendants, before the Hon’ble High Court, in W.P.No.5653/2008. The writ petition was dismissed and the plaintiff was permitted to file a fresh petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act of 1996’ for short). Thereafter, the plaintiff filed a Civil Miscellaneous Petition in CMP No.208/2011 before this Court, and said petition was dismissed on the ground that the plaintiff is prosecuting the litigation in an alternative forum and accordingly, sought to compute the limitation. It is the case of the plaintiff that there is no delay in completion of work, but the defendants have dragged the matter for one or the other reasons, to avoid the settlement of the bill amount. The plaintiff, due to delays and default on the part of the defendants, was forced to execute certain works beyond the contract period and therefore, it is contended that the defendants are bound to pay the equitable revised rates with an interest, including the charges and security deposits. Hence, prays to decree the suit.

6. In pursuance of service of summons, defendants Nos.1 & 2 appeared before the trial court through counsels and as per the order dated 25.08.2014, defendant No.3 was impleaded and in pursuance of service of summons, he appeared before the Court. Defendant Nos.2 and 3 filed the written statements separately, and defendant No.1 filed a memo, adopting the written statement of defendant No.2.

7. Defendant No.2 filed a written statement, by denying the plaint averments. He contended that the suit of the plaintiff is bad for non-joinder of the necessary party, as defendant No.2 is no way concerned with the suit in hand. It is further contended that the plaintiff has entered into a contract with defendant No.3 on 23.09.1999, and the contract work was carried out at Bagalkot and hence, he has no right to file a suit within the territorial jurisdiction of the Civil Judge and JMFC at Hubballi.