ORAL JUDGMENT

1. These Regular Second Appeals are arising out of a common judgment and decree dated 26.03.2013 passed in Regular Appeal Nos.136 of 2011 and 198 of 2011 by the learned Presiding officer, Fast Track Court-II, Hassan.

2. For convenience, the parties are referred to based on their rankings before the Trial Court. The appellants were the defendants, and the respondent was the plaintiff.

3. Brief facts, leading rise to the filing of these appeals are as follows:

4. The plaintiff initially filed a suit against the defendants for recovery of a sum of ₹3,00,000/- and subsequently, the plaint was amended from time to time and sought for recovery of a sum of ₹39,82,668/- with a direction to reimburse the Earnest Money Deposit, security deposit, Ramp EMD deposit and illegally recovered amount with interest at the rate of 24% + 2% from 01.03.1990 till the realisation.

5. It is the case of the plaintiff that the plaintiff is a Class I Public Works Department contractor. During the month of October 1987, the defendants invited a tender from the eligible contractors for doing earth excavation work and embankment from chainage 12,000 meters to 12,900 meters of HRBHLC division (Hemavathi Right Bank High Level Canal Division for short 'HRBHLC division') from Hemavathi Project, Gorur, of 13 k.m. (balance work). The tendered cost of work was ₹10,01,260/-. The plaintiff submitted an application. The plaintiff's tender was accepted and an agreement was executed between the plaintiff and the defendants and a work order was issued. During the existence of the contract between the plaintiff and defendants, the defendants have entrusted the additional work of removing debris on both the sides i.e., service road and inspection path sides and to shift the same.

6. As per the instruction of the officers of the defendants department, the plaintiff has completed the tender work to the tune of more than ₹18,00,000/-, as against the work order tendered around ₹10,01,260/-. The plaintiff has discharged the contractual obligation. Thereafter, defendant No.1 let in water into the canal and radically changed the working conditions. The plaintiff being the tender holder carried balance earth work excavation from chainage 12,000 meters to 12,200 meters as per the directions of the officers of the defendants and he shifted excavated stuff and debris from the spoil bank and dumped at Survey Nos.57, 58 and 59 of Kaniyar village. It is contended that the plaintiff has shifted 32,814 cubic meters of debris and 15% of the voids are to be added. Thus, the total quantity of the voids shall be added which amounting to 4,922.1 cubic meters and thus, in all, the total quantities of the debris removed by the plaintiff is 37,736.1 cubic meters. The plaintiff calculated and submitted a bill to the defendants to pay the amount. The defendants did not pay the amount as demanded by the plaintiff. Hence, a cause of action arose for the plaintiff to file a suit for recovery of money.

7. The defendants have filed a written statement admitting that plaintiff is the Class-I PWD Contractor and admitted that the work order was issued to the plaintiff for earth excavation and embankment from 12,000 meters to 12,900 meters. The defendants admitted regarding the execution of agreement between the plaintiff and the defendants on 05.10.1987 and it is denied that the plaintiff was entrusted with the additional work. It is contended that the plaintiff has not completed his work within time and the time was the essence of contract. The plaintiff filed a suit in O.S.No.123 of 2000 and obtained stay and hence, prays to dismiss the suit.

8. The plaintiff filed an application to amend the plaint.The said application came to be allowed and the plaintiff was permitted to carry out necessary amendment. The plaintiff by amending the plaint has sought for the relief of a recovery of ₹39,82,668/- instead of ₹3,00,000/- and subsequently got amended the plaint for ₹5,20,000/- and again he has f