1. ' The Plaintiff was awarded work involving making of a new earthen channel (canal) from Halejee connecting R. C. C. Canal. The contract was awarded after inviting tenders which contained all terms, conditions and specification of the work. The Plaintiff completed .The work and submitted the final bill on or about 31st December, 1963 but payments were not made in respect of certain items of work which were claimed as extra work and increased quantity of work. The plaintiff accepted the payment under protest and referred the matter to arbitration in which an award for Rs, 17,36,000 was made but due to promulgation of Ordinance XXV of 1965 the award and proceedings abated and the present suit was filed. The plaintiff has made claim under three heads : (1) Rs, 74,240 for. Bailing out accumulated water, (ii) Rs, 1,75,981 for bailing out subsoil water and
(iii) Rs, 45,03,507 for bailing out subsoil water during construction of chamber and syphon at 13 stages. The defendants have denied the claim mainly on the ground that the first two claims did not arise as according to the contract this work was included in the item of works which were to be performed by the plaintiff. As regards 3rd claim the defendants have denied that 13 stages were necessary for bailing out subsoil water during construction of chambers and syphons.
2. ' The plaintiff was paid for two stages which was accepted by him under protest. During the arguments with the consent of the parties the issues No, 3, 4-A and 4-B were amended as issues 3 and 4, issue No, 8 were deleted. The following are the issues :-
(1) Whether the suit is barred by limitation ?
(2) Whether plaintiff firm is not registered and the suit is barred under section 69 of Partnership Act ?
(3) Whether the plaintiff was required to do excavation work instead of filling work ? If so did the plaintiff bail out accumulated water between R. D. 8700 to 16000 and is he entitled to recover Rs, 74,240.
(4) Whether the plaintiff was required to do excavation work instead of filling work between R.D.
3. 8700 to 16000. If so did the plaintiffs dewater subsoil water while excavating 21996 eft and is entitled to recover Rs, 1,75,981 ?
(5) Whether the plaintiff had to bail out subsoil water at every stage of the work involved in the construction of the 3 syphons without which it was impossible to excavate the work ?
(6) What are the stages of work involved in the construction of syphons during which trenches are to be kept dry for executing the work ?
(7) Whether the plaintiffs are entitled to be paid for bailing out subsoil water for 13 stages of the work or any other number of stages as alleged by the defendants ?
(8) Whether the plaintiffs are entitled to a sum of Rs, 45,03,507 on account of the bailing out of subsoil water in the construction of the three syphons ?
(9) What is the effect of the award for Rs, 17,36,000 in favour of the plaintiffs against the defendants ?
(10) To what amount if any are the plaintiffs entitled for all the claims in suit ?
(11) Whether the plaintiffs are entitled to interest as claimed ?
(12) Whether the suit is false and vexatious and is liable to be dismissed with compensatory costs under section 35-A, C. P. C. ?
4. ' ISSUE No, 1 : The tender for the work was invited on 16th October, 1962 and the contract was awarded on 29th October, 1962. The plaintiff completed the work on 31st. October, 1963 and final bill was paid on 31st December, 1963 which was accepted under protest. However, the plaintiffs had referred the matter to arbitration and an award dated 10th October, 1964 for Rs, 17,36,000 was made. This award was filed in Court and the matter was registered as a suit. During the pendency K. D. A, (Abatement of Arbitration Proceedings) Ordinance XX V of 1965 was promulgated on 16th August, 1965. It provided that any award made by the arbitrator if it has not been made rule of the Court shall stand annulled and be of no effect, and any pending proceedings in respect of such award shall abate. In consequence the proceedings in suit No, 18/65 pending in this Court abated.
5. The plaintiffs filed the present suit on 26th March, 1968. Section 4 of the Ordinance provides that in computing the period of limitation time commencing from the date of making the reference to
(time) arbitration upto the coming into force of the Ordinance shall be excluded. The plaintiffs completed the work on 31st October, 1963 and referred the matter to arbitration on 27th September, 1963. As the time from 27th September, 1963 to 16th August, 1965 is excluded the suit is within time.
6. ' ISSUE No, 2 : The firm is duly registered. The registration certificate dated 26th May, 1955 has been produced. In view of this evidence the defendants did not press this issue.
7. ' ISSUE No, 3 : The admitted position is that the tender was invited and before submitting the tender the plaintiff had inspected the site. This was also a condition in the tender that contractor should inspect the site. Along with the tender documents, drawings and sketches were also annexed which indicated the nature of work which was to be performed. It may be mentioned that the claim under this issue is being made on the basis that the plaintiff had to perform extra work. By extra work it means those works which were required to be done during the pendency of the contracted work but were not specified in the contract. The nature of work awarded to the plaintiff was in respect of a link canal named as emergency canal between Haleji lake and Gujjo. The small channel called Gujjo minor was already existing and in a portion of the work allotted to the Plaintiff between R. D. 8700 and 16000 the plaintiff was required to remodel shape and design. The items of work which the plaintiff was required to do were as follows :
(i) The ground surface on which the embankment is to be made should be ploughed to the minimum depth of 6" and all grass and other undesirable objects removed to make the bank homogenous with the ground.
(ii) For the portions of the, canal where the existing section has deformed beyond the specified dimensions, filling the beds and side of the canal as required with excavated soil in. 6" layers including watering, ramming or rolling with suitable mechanical rammer or rollers as directed by the Engineer-in-charge to bring the section to the specified dimensions.
8. (iii)
(iv) General ramming with mechanical rammer of the side of the canal with mechanical means in accordance with the instructions of the Engineer-in-Charge in order to obtain a firm base wherever necessary.
(v) Keeping the canal free of any subsoil water, rain water or water collected from any other source.
9. ' The plaintiff was provided with drawings and he has admitted that the drawings showed both cutting and filing and also showed the level of the bed. The drawing also showed that in order to complete the contracted work the plaintiff has to excavate the sides of the old canal. The learned counsel for the plaintiff has contended that in the drawing it was not shown that there was any accumulated water present in this area which was to be bailed out. Perhaps it was not necessary because in terms of tender the contractors were required to submit their tender after having inspected the site. The plaintiff had inspected the site and having satisfied himself about the existing conditions of the canal and having examined the drawings in relation to the specific work required under the tender document, he had submitted his offer. Now at this stage it is too late to say that he was not aware of the correct situation or that he was misled by the drawings. The nature of work in which contract was awarded has been specified above. It clearly illustrates that the work involved bailing out of water, if any and filling the beds and sides of the canal. In any event it was provided that the contractor shall keep the canal free of any subsoil water, rain water or water collected from any other source. The specification is wide enough to include accumulated water. This accumulated water may have been there before carrying out the work, or it may have accumulated during the work. Any subsoil water which may have accumulated during excavation was also to be bailed out by the plaintiff.
10. ' In his evidence the plaintiff has stated that he had written letter to the defendants inviting their attention that in respect of filling work he had to perform extra work of drawing. Out water that was standing on site. He has stated that the defendants through their Engineer examined the level of soil at site and after examination he made recommendation to the defendants for preparation of extra item statement. Great emphasis has been laid on this piece of evidence. Suffice to say that this was merely a recommendation and the defendant's witness has explained that it was referred to the legal adviser for his comments as he would have examined the legality of the claim in relation to the contract. However, this is not the case of the plaintiff that after the recommendation the defendants accepted the claim and had agreed to pay for it. In these circumstances even if recommendation was made by the Executive Engineer it was not sufficient to entitle the plaintiff to claim such payment unless agreed by the defendants. In view of this discussion the finding is that the plaintiff was required to do excavation and filling work and also to bail out accumulated water and therefore he is not entitled to Rs, 74,240.
11. ' ISSUE No, 4 : In view of the discussion in Issue No, 3 my finding is that under the contract the plaintiffs were required to do excavation and filling work and to dewater subsoil water. They are not entitled to claim Rs, 1,75,981.
12. ' Issues Nos. 4, 5, 6, 7 and 8.-These issues related to construction of 3 syphons and therefore can be taken together. The plaintiff has claimed that he had to bail out subsoil water during the excavation work of 2 regulators and 3 syphons. According to the plaintiff the bailing out of water was carried out at 13 stages of the construction. Before considering the evidence on these issues it would be relevant first to refer to the provision of the contract which relates to this part of the work.
13. S. No.Quantities estimated but may be more or lessDescription of itemsTenderRate In Figure In words 1 2 3 4 5 6 7 192,00,000, Cft.Bailing or pumping subsoil water during execution or concreting p- ipe line and l- aying encasin- g (trench vol- ume below su-bsoil water level and concrete level respectively to be paid.)Rs.800/-Rs.eight hundred onlyThousannd % Cft.Rs.
14. 1,60,00 {{TABLE}} The contract therefore has specified the stages during which bailing of subsoil water was to be paid for. The plaintiff claims that there were 13 stages as specified in para. 9 of the plaint involved in the work and at each stage subsoil water was bailed out, therefore he should be paid for each of the stages. The defendants claim that only two stages were involved in it and according to agreement they were liable to pay for two stages which they have paid. The plaintiff has stated that it was impossible to execute this item of work without bailing out water at each one of the 13 stages. He has, further, stated that in all types of work of this kind the contractors were paid charges for bailing out water at 13 stages or stages at which actually such work has been executed. He has stated that in execution of this work 507710 cft of water had to be drained out at each stage. He has further stated that the total quantity of water drained was 6600230 cft. And has claimed payment, at the rate of Rs, 800 per cft. He has therefore claimed Rs, 52,81.940 towards this work. He has been paid Rs, 7,76.586 and therefore he claims the balance of Rs, 45,05,318. He has further stated that the quantity of water bailed out has been taken from the measurement book prepared by the Engineer of the defendants. He has admitted in cross-examination that 13 stages for draining subsoil water were not mentioned in any part of the contract or specification or any other document relating to the contract for this purpose. He further admitted that by his letter dated 27th September, 1963 first he made a claim for draining subsoil water on the basis of having done the work at 4 stages. By another letter dated 7th October, 1963 he maintained his claim for 4 stages and specified the quantity at 10.60087 cft. And claimed Rs, 8,48,069 for the same. By his third letter dated 18th October, 1963 he made claim on the basis of work having been done in seven stages and claimed Rs, 20,66,573. Finally before the Arbitrator the plaintiff claimed Rs, 45,03,597 on the basis of 13 stages. This clearly demonstrates how the plaintiff had been changing his claim from time to time.
15. ' The plaintiff has examined Ahmed Yar Khan who has confirmed that the subsoil water was bailed out at 13 stages. The plaintiff has examined a retired Superintending Engineer as an expert who has deposed that although there are 13 stages, by combining some of them it can be lessened and according to him instead of 13 only 10 stages of dewatering were necessary. He has, however, stated that he had no occasion to see the work during its execution and the actual condition of the site should be taken into consideration for determining the stages of the work. He hasalso stated that irrespective of any site condition 13 stages were necessary. A witness for P. W. D. Was examined on behalf of the plaintiff who has submitted that U. K. Construction' Company was paid for 8 operations in regard to bailing or pumping out of subsoil water. This witness stated that in respect of construction of National Museum the contractors were paid for 8 operations. The defendant's witness has denied that 13 stages were required as alleged by the plaintiff. According to this witness items 2, 3 and 6 mentioned in para, 9 of the plaint could be done at one time and similarly items 4, 5, 9, 10, 11 and 12 could be combined together.
16. ' The key to this Issue is to be found in item No, 19 of Schedule B to the contract which has been reproduced above. The evidence regarding payment to U. K. Construction Company to the exent of 8 stages may not be sufficiently relevant to prove the plaintiff's case as it depends entirely upon the terms and conditions of a particular contract and the nature of the work performed by the contractor. The Law Officer of P. W. D. Produced in Court has merely stated that for bailing out subsoil water the contractor was paid for 8 stages. The contract and tender documents have not been produced and therefore mere statement of this witness will not prove the plaintiff's case.
17. ' The plaintiff has specified 13 stages which have been reduced to lesser stages even by the plaintiff's witness. The stages can be determined by reading item No,
19. During cross-examination, the defendant's witness has stated :- ' It is correct that excavation is necessary for completion of the contract work. It is correct that shuttering is to be fixed for bed concrete for syphon. But this is part of the work. It is correct that shuttering was necessary for the completion of the work but it is the part of the item. It is correct that when the concrete is made it does require time for maturity. It is correct that the water comes up after laying the concrete and it is to be dewatered again and again continuously.
18. ' It is also correct that trench has to be kept dry when M. S. Bars are laid for foundation rafts of chambers for syphon. It is also correct that then shuttering has to be fixed again. It is correct that dewatering has to be done again. It could not be stopped. It is correct that for every item dewatering is to be done.
19. ' A reading of this evidence at the suggestion of the plaintiff makes it clear that there are 4 stages during which the water was to be bailed out. Item No, 19 also provides bailing of subsoil water during excavation, concreting pipelines, laying of pipe and encasing. This item also provides for 4 stages. This is also confirmed by the fact that the plaintiff had first submitted his bill on the basis of having completed the work at 4 stages. In the letter dated 27th September, 1963 which is a part of Exh. 17/1 the plaintiff while rebutting the defendant's claim that dewatering of subsoil water has to be paid only for two stages made the following claim :- "We legally claim for dewatering of subsoil water which should be paid to us 4 times i,e, (i) excavation, (ii) laying bed concrete, (iii) pipe laying and (iv) encasing pi planes.
20. ' Again in his letter dated 7th October, 1963 this claim was made in the following terms :-
(1) Agreement item No, 19.
21. "Bailing or pumping out subsoil water during excavation or concreting pipeline and laying encasing (trench volume below subsoil water level and concrete level respectively to be paid."
(a) Construction of syphons Nos. 1, 2 and Halat syphon.
(1) Payment of dewatering of subsoil water during excavation of chambers and pipeline of the above structures paid to us is acceptable to us which is 5,07.710 cft. Hence no claim.
(ii) Payment of dewatering of subsoil water during encasing of pipeline of the above structures has been paid to us upto concrete level but since for certain items of concrete we have only been paid upto subsoil water level and not upto top level of concrete we claim that either actual dewatering upto subsoil water level should be paid to us or the top level of the concrete. We however without prejudice to our claim for payment of subsoil water upto concrete level in all cases, claim the difference of concrete level and subsoil water level which works out to quantity of subsoil water paid during excavation of the trench 1,40,805 cft. (-) 96,118 cft. Paid up to concrete level) 44,687 cft.
22. You would appreciate that encasing of pipeline could not be done without dewatering of subsoil water up to full height. Therefore difference claimed (44,687 cft. %. Cft.) Rs, 35,749.
(iii) During laying bed concrete (for complete syphons including chambers).
(iv) During laying pipelines (for complete syphons including chambers).
23. ' No payment has been made to us for dewatering of subsoil water during the above two stages of work. We claim that subsoil water as paid during excavation (i) above should be paid to us twice which works out to 10,15,400 cft. You would appreciate that laying bed concrete, pipeline and construction of chambers above pipeline, could not be done without dewatering the subsoil water upto full height. Therefore we claim 10,15,400 cft. @ Rs, 800 % 0 cft. ---- Rs, 8,12,320.
24. ' This clearly shows that to begin with the plaintiff's own interpretation and submission of bill was on the basis of only 4 stages but later on as an afterthought it was increased to 13 stages. The assessm ent of the evidence oral and documentary clearly establishes that the plaintiff was required to be paid for this work at 4 stages only. The plaintiff has been already paid for 2 stages.
25. The plaintiff has stated that at each stage he had bailed out 507709.87 cft. Of water. This measurement is based on the figures mentioned in the measurement book prepared by the defendants. After this statement was filed it was not challenged by the defendants. On the basis of these figures at the rate of Rs, 800. Per % 0 cft., the Plaintiff's counsel has endeavoured to assess the claim. However the plaintiff in his letter dated 7th October, 1963 has quantified this claim at Rs, 81,12,320. The plaintiff has submitted that the defendants have paid Rs, 7.76,586 for two stages also the plaintiff will be entitled to Rs, 7,76,586.
26. ' ISSUE No, 10 : The arbitrator had awarded Rs, 17,36,000 but in view of Ordinance XXV of 1965 as the award has abated it cannot be pressed in service by the plaintiff nor it has any legal effect.
27. ' ISSUE No, 11 : In view of the finding on the aforestated issues the plaintiff is entitled to Rs, 7,705,586.
28. ' ISSUE No, 12 : The plaintiff has claimed interest at 6% per annum from June, 1964 upto the date of filing of suit amounting to Rs, 10,88,559. The plaintiff has further claimed interest at 6% per annum from the date of suit till realization. The plaintiff made the claim on 27th September, 1963 but did not give any notice for charging interest. Again when a request for arbitration was made on 7th October, 1963 the plaintiff had categorised his claim but no reference has been made to the claim for interest. In his statement also the plaintiff has not made any reference to his claim for interest.
29. The learned counsel for the plaintiff has also not stated in what manner and on what basis the plaintiff is entitled to D claim interest for the period June, 1964 to 26th March, 1968 when the suit was filed. From the award also it is not clear that any claim of interest was made and allowed. No document has been produced to show that any demand for interest was made and notice was served as provided by the Interest Act. In these circumstances the plaintiff is not entitled to claim interest for the period June, 1964 to 25th March, 1968. The plaintiff will, however, be entitled to interest @ 6% per annum from the date of suit till recovery.
30. ' ISSUE No, 13 : This Issue has not been pressed by the plaintiff and my finding is in the negative.
31. ' In the result the suit is decreed for Rs, 7,76,586 with interest @ 6% per annum from the date of suit till recovery with proportionate costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.