The court affirmed that the decision of the DGM (Engineering) regarding measurement is final and binding, rendering the plaintiff's claims for additional payment unmaintainable.

JUDGMENT

The above suit has been filed by the plaintiff seeking to direct the defendant to pay the plaintiff a sum of Rs.2,67,98,211/- together with subsequent interest at 18% per annum on Rs.1,12,08,510/- from the date of the plaint till the date of realisation and for costs of the suit.

2. The averments as contained in the plaint are as follows :

(i) The defendant awarded a contract to the plaintiff for land development work at its CMT Irumpanam Terminal, Kerala (Phase II), covered by Work Order No.ENG.T.7033:45:003-96-97, dated 17.05.1996. The fundamental dispute that arose between the plaintiff and the defendant was about the initial survey to be carried out to determine the founding levels for the embankment fill in a marshy and yielding over layer of highly fluidized soil lying below water on top of a firm bed. On the representation made by the plaintiff, the defendant examined and recognized this fact and forthwith conceded by amending the mode of measurement in terms of their letter, dated 22.5.1996 in a manner, which was satisfactory to the plaintiff and the defendant, both technically and contractually. This letter was signed by the Deputy General Manager (DGM) (Engineering) of the defendant, who was the Competent Authority, in and by which, the mode of measurement stood amended and this formed part of the original contract.

(ii) In spite of the aforesaid letter dated 22.5.1996, amending the mode of measurement, the officials of the defendant did not implement the same at the site. In view of the above, one Mr.T.S.Anbazhagan, General Manager (Business Development) of the plaintiff had discussions with the DGM (Engineering) of the defendant-Corporation regarding initial levels. Ultimately, the General Manager (Business Development) of the plaintiff- Company sent a letter dated 27.6.1996 to the DGM (Engineering) of the defendant to take immediate steps to inform their staff present at the site to take measurements as per the letter dated 22.5.1996. Thereafter, by letter dated 15.7.1996 of the defendant, the mode of measurement stood amended, contrary to their earlier letter dated 22.5.1996.

(iii) To the said letter dated 15.7.1996, the plaintiff sent a reply dated 20.7.1996, setting out the facts and stating that the measurements should be taken as per the mode of measurement mentioned in the letter dated 22.5.1996, which was an amendment to the original contract. Thereafter, a meeting was convened on 26.7.1996 and the minutes of which have been recorded. To avoid the stalemate, it was agreed that two measurements would be taken; one set of reading, namely Reading 'A' as contended by the staff of the defendant; and another set of reading namely Reading 'B' would be taken as per the letter dated 22.5.1996. Further, it was made clear that Reading 'B' would be taken without prejudice to the rights and contentions of the defendant and that the plaintiff would be at liberty to pursue their claim as per Reading B' in accordance with the terms and conditions of the contract.

(iv) Even though the plaintiff-Company was entitled to payment as per measurement 'B', the defendant-Corporation had been making payment as per measurement 'A', contrary to the terms of the contract and also contrary to the letter dated 22.5.1996, by which, mode of measurement stood amended.

(v) The plaintiff, by their letter dated 05.3.1997, made it very clear that they should be paid as per Reading 'B' and accordingly, raised supplementary bills as per Reading 'B'. This was followed by another letter dated 30.7.1997 from the plaintiff to the defendant. There was a reply letter dated 24.10.1997 from the defendant stating that payment would be made as per Reading 'A'. Thereafter, the plaintiff, by their letter dated 11.3.1998, made the position very clear that the bills should be paid as per measurement 'B' and requested payments as per measurement 'B' and claimed the amounts due together with interest at 24% per annum. Along with the said letter, the plaintiff