M/S A.K. Ghosh & Sons vs The State Of West Bengal
2026 Latest Caselaw 204 Cal/2

2026:CHC-OS:16-DB

10. Learned Senior Advocate also submitted that the delay in the

completion of the project was attributable solely to the laches and

inability of the Appellant. In particular, it was contended that the

Appellant failed to construct the two masonary wells during the dry

season, which rendered the adopted construction method unsuitable

and resulted in avoidable delay. In addition, Learned Senior Advocate

also submitted that the appellant was duly provided with necessary

materials for construction, including 15 metric tonnes of cement. The

appellant never provided a consumption letter regarding timely

consumption of the building materials supplied to the appellant.

11. According to the plaint case, the appellant participated in a

tender process. He submitted the tender in response to an invitation to

tender from the Superintendent Engineer, Project Circle, P.W.(CB)

Directorate, Burdwan for construction of new Primary Healthcare

(P.H.C) with staff quarters including Sanitation & Plumbing works

along with two masonry wells at Udoypur under Rampurhat - I Block,

District Birbhum.

12. The tender submitted by the Appellant was accepted by the

Superintending Engineer by letter dated 20th December 1988. The

tender was quoted at 4.85% above the departmental schedule of rates,

and the total tender value was assessed at ₹22,77,981/-. Pursuant to

2026:CHC-OS:16-DB

such acceptance, a work order dated 30 December 1988 was issued in

favour of the Appellant by the Executive Engineer, Birbhum Division-I,

P.W. (CB) Directorate. A formal agreement was executed by and

between the parties bearing contract number 29/SE, PCE of 1988 -

89/41/Birbhum Division - I of 1988 -89.

13. It was the further case that according to the contract, the

work was scheduled to begin from 16th January, 1989 and was to be

concluded by 15th April, 1990. Owing to alleged delays, the Appellant

sought extension from time to time lastly by letter dated 28th June,

1990. The contract period was extended up to 30th September, 1990.

The work was ultimately completed on 29th November 1991, resulting

in a delay of approximately 19 months and 14 days beyond the

stipulated completion period. Such delay, according to the appellant,

was mainly on account of the following grounds, namely:

i. Delayed handing over of site for the construction work. ii. Delay in finalising and handing over approved designs and drawings, and failure to take timely decisions in respect thereof;

iii. Failure in furnishing of required supply of specified store materials such as cement and steel which was the obligation of the Respondent to supply; iv. Additional expenditure incurred due to delay in and carriage of departmental materials;

2026:CHC-OS:16-DB

v. Delay due to monetary constraint placed on the Appellant because of non-release of funds as per Running Account (RA) bills on time.

14. Upon completion of work, the Respondent had prepared the

final bill, to which the Appellant had raised objections. According to

the appellant, a sum of ₹32,56,903/- was due and payable. The

respondent having failed and denied to pay the legal dues, the

Appellant instituted the suit claiming recovery of the said amount

along with interest at the rate of 22% per annum from January 1,

1992 to February 29, 1996, aggregating to a total claim of

₹83,74,613/-.

15. The Respondent/State contested the suit by filing a written

statement denying all material allegations contained in the plaint. It

was contended that the Appellant had accepted full and final payment

without any protest or reservation, and was therefore estopped from

raising any further claim.

16. It was the case of the respondent that upon completion of the

project, the appellant received full and final payment of their bill raised

towards the project work without any demur and as such, the

appellants were estopped from claiming any amount of alleged unpaid

bills or any damages. Moreover, according to the terms of the tender,

the work was to commence by January 16, 1989 and it was supposed

2026:CHC-OS:16-DB

to be complete by April 15, 1990. The appellant failed to commence the

work in time inspite of all possible cooperation rendered on the part of

the respondent. By reason of delay which was solely attributable to

inaction on the part of the appellant, the appellant sought for

extension of time. The respondent accepted the request for extension of

time and the time of completion of project was extended by the

respondent on condition that such extension would not entitle the

appellant/plaintiff for any compensation on account of delay. The

project work was completed on November 29, 1991 after a delay of 19

months and 14 days.

17. Although, the respondent/defendant suffered loss and

damages due to delay in completion of the project owing to inaction of

the appellant/plaintiff, nevertheless, the respondent made full

payment to the plaintiff/appellant by the 11th and final bill being

Voucher No. 7 dated February 29, 1996 amounting to ₹31,61,721/-.

The full and final payment of all supplementary items of works

approved by the superintending Engineer, Project Construction Circle

was also made to the appellant by Voucher No. 8 dated February 29,

1996. Such payments were made as per the bills duly made out on the

basis of mutually recorded measurements and the payment was made

by the respondent and accepted by the appellant without any

2026:CHC-OS:16-DB

reservation. According to the case made out by the respondent, the

appellant was required to submit a bill every month in terms of Clause

8 of the contract, however, the appellant failed to submit bills month

by month. For such reason, the respondent department prepared the

bills on the basis of recorded measurements and payments were made

to the appellant on the basis of such bills. In such fashion, 11 bills for

the contractual works and one bill for supplementary work, was

approved by the superintending engineer in terms of Clause 12 of the

agreement and was paid to the appellant.

18. On the basis of the pleadings put in by the parties, the learned

Trial Judge framed as many as 8 issues in order to adjudicate the

disputes in the proceeding, namely:

1. Was the execution on completion of the work under the contract between the plaintiff and the defendant delayed due to the fall or default on the part of the defendant or by reason of the latches and inability of the plaintiff?

2. Was there any agreement between the plaintiff and the defendant to pay at different rates for additional items of works done by the plaintiff?

3. Did the defendant make payment for all items under the contract in question including additional items of work not mentioned in the contract?

2026:CHC-OS:16-DB

4. Is the plaintiff entitled to the claims preferred in respect of execution of extra item of works as mentioned in paragraph 11 of the plaint?

5. Did the plaintiff suffer any loss due to default on the part of the defendant for prolongation of work beyond the date for completion of work mentioned in the contract in question?

6. If so is the defendant liable to compensate the plaintiff on account thereof as claimed by the plaintiff?

7. Is the suit barred by limitation?

8. So what relief the plaintiff is entitled?

19. Issue No.7 was decided by the learned Single Judge in favour

of the appellant/plaintiff. No arguments were advanced by the parties

at the time of hearing of the instant appeal in relation to such issue.

On perusal of the materials placed before us, we also find nothing to

differ with the findings of learned Trial Judge. So far as Issue No.1

with regard to delay in completion of project work is concerned, it

transpires that the learned Single Judge came to a conclusion that the

delay in the completion work was not attributable to the respondent.

The learned Judge also held that the deficiencies on the part of the

appellant itself were actually responsible for delayed completion of

project. While deciding the issue, learned Single Judge noted that by a

letter dated January 4, 1989, the appellant informed the assistant

engineer that the plaintiff had received the work order and was in a

2026:CHC-OS:16-DB

position to start work at an early date. On the same day, the assistant

engineer wrote a letter to the plaintiff with a request to start work. The

date of completion of work was fixed on April 15, 1990. Learned Single

Judge also noted that by a letter dated May 4, 1989 the assistant

engineer intimated the appellant that upon inspection of the work on

March 9, 1989, March 20, 1989, April 11, 1989, April 17, 1989, April

21, 1989, April 24, 1989 and May 3, 1989 it was observed that no

work of masonary well was done by the appellant although, site

representative of the plaintiff was requested several times in this

regard. The letter also stated that the appellant had wasted the dry

season which was the best time for digging masonary well. Such

allegation was also not denied on the part of the appellant.

20. Learned Trial Judge also noted in the impugned judgement

that while seeking extension of time by its letter dated June 28, 1990,

it was stated that segment was not available for two months from the

end of March 1990. However, learned Single Judge was of the opinion

that non-availability of cement for a limited period of two months can

be taken as a ground causing delay of the entire project. The learned

Single Judge also took note of an explanation sought to be given on the

part of the appellant that much time was consumed in the

construction of masonary well by sinking method and in doing so

2026:CHC-OS:16-DB

considerable quantity of material had to be carried by head load from

about a distance of half a kilometer as the road became un-motorable

for some months.

21. By a letter dated February 12, 1990, the plaintiff informed the

assistant engineer that the plaintiff had taken up construction of one

Masonary well at the site shown by the assistant engineer. The said

letter was responded by the assistant engineer by a letter dated

February 26, 1990 wherein it was stated that the plaintiff started

construction of the Masonary well on February 20, 1990 only when the

assistant engineer was inspecting the site. The appellant/plaintiff

wanted to know the exact location of the second Masonary well and it

was shown to him on such date. The appellant or his representative

never asked for identification of the location earlier. Learned trial judge

also noted that by its letter dated June 29, 1990, the appellant

informed the executive engineer to the effect that much time was

consumed in constructing Masonary well by the method of sinking.

Building materials had to be taken overhead for 1/2 kilometers as the

road had gone un-motorable.

22. The learned Single Judge also noted in the impugned order

that an instant report was supposed to be submitted by the contractor

if he was not able to execute the work due to unavoidable

2026:CHC-OS:16-DB

circumstances. However, in the case at hand, an extension of time was

sought by the appellant without assigning any specific reason, merely

citing 'reasons beyond control'. A second extension of time was sought

by a letter dated June 28, 1990 on the ground of non-availability of

cement for two months from March 1990. On this score, the learned

Single Judge observed that the project work was hampered for a

limited period of two months for non-availability of cement. It did not

cover the entire project timeline and did not accept the same as a

ground for delay in completion of the project. The learned Single Judge

also noted that by a letter dated April 13, 1990, the assistant engineer

wrote to the appellant that whitewash, paint and other works were yet

to be executed. The letter also stated that the appellant/plaintiff was

not executing the tender project earnestly.

23. The materials on record reveals that the appellant was

requested to start the construction work by a letter from the Assistant

Engineer on the very date when the appellant intimated the

respondent, after acceptance of his tender, that it was ready to

undertake the project. Therefore, the case of the appellant that there

was considerable delay in the delivery of the site, ready for the work

does not stand.

2026:CHC-OS:16-DB

24. The respondent has come up with a case that the appellant

was provided all cooperation and supply of building materials at

relevant time. The appellant has not been able to provide the details of

such delayed supply of building materials. On the contrary, evidence

led at the trial demonstrates that a considerable amount of cement etc.

was lying with the appellant, supplied by the respondent. In fact, the

appellant, in its letter, cited the reason for delayed execution of work

as non-motorable condition of road which obliged the appellant to

carry head loads to the project site for about ½ km. In such letter by

the appellant, there is no whisper of delayed supply of building

materials. Not only that, the appellant was obliged to submit

consumption reports of such articles. Our attention was not drawn to

any evidence which established that such report was submitted by the

appellant at any point of time.

25. According to the terms of the contract, the contractor was

under obligation to instantly intimate respondent of any circumstances

which hindered the execution of the project. However, no such report

appears to have been submitted by the appellant. The appellant

ventilated its inability at the time when it sought for extension of time.

His request for such extension also did not disclose any specific reason

of delay save and except 'reasons beyond control'. The evidence led at

2026:CHC-OS:16-DB

the trial also does not disclose that the appellants ever endeavored to

refute the allegation of the respondent to the effect that the appellant

lost the dry seasons without any reason in digging up the masonary

well. At the time of inspection of the first masonary well, the appellant

allegedly asked the Assistant Engineer for the location of second

masonary well which, of course, was shown to them. However, it

remains a mystery as to how the appellant agreed to execute the work

when the construction site was not known to him and as to what

prevented the appellant from taking instructions beforehand.

26. The evidence on record also shows that after the award of

contract work, the respondent conducted survey of the ongoing project

on several dates i.e. on March 9, 1989, March 20, 1989, April 11,

1989, April 17, 1989, April 21, 1989, April 24, 1989 and May 3, 1989.

By a letter dated May 4, 1989 the assistant engineer intimated the

appellant that upon inspection of the work it was observed that no

work of masonary well was done by the appellant although, site

representative of the plaintiff was requested several times in this

regard. Later, by a letter dated April 13, 1990, the assistant engineer

wrote to the appellant that whitewash, paint and other works were yet

to be executed by the appellant. We have noted hereinbefore that

project was to commence with January 16, 1989 and it was supposed

2026:CHC-OS:16-DB

to be complete by April 15, 1990. Extension of time was sought twice

by the appellant and was granted by the respondent.

27. So far as the case made out by the appellant is concerned,

according to them the delay was caused on account of belated

approval of construction drawings, delay in supply of building

materials, stale decision on the issues raised by the appellant.

However, at the time of hearing, the appellant did not draw our

attention to any specific act or omission on the part of the respondent

which could be accepted as genuine cause of delay. The appellant did

not point out the specific drawing which was provided to the appellant

belatedly. On the contrary, it appeared from evidence that the day

appellant intimated its readiness to execute the job, on the selfsame

day, by a letter from Assistant Engineer; he was requested to execute

the same. We have already noted that cement etc. was duly supplied to

the appellant and in fact, at the time of inspection, it was found that

considerable amount of cement was still lying with the appellant. The

appellant also did not refute the case of the respondent to the effect

that the appellant failed and neglected in submitting the consumption

statement of the building materials as required in compliance to the

terms of the contract.

2026:CHC-OS:16-DB

28. In such inspection, it was duly intimated to the appellant that

the project work was not being carried out with required speed. There

were several works to be accomplished. While asking for extension of

time, the appellant pleaded un-motorable condition of road where

building materials had to be taken as manually. According to the

terms and conditions of the contract, the appellant was supposed to

intimate the authorities about any circumstances hindering the

completion of project but our attention was not drawn to any such

communication on the part of the appellant/plaintiff. In view of the

aforesaid facts and circumstances, we find no reason to differ with the

findings of the learned Single Judge that the appellant was not able to

prove that delay in completion of the project work was attributable to

the respondent.

29. Issue nos. 3 to 6 were taken up and decided together. The

learned Trial Judge considered the evidence adduced on behalf of the

parties and observed that in accordance with the terms and conditions

of the contract more specifically Clause 12, the decision of the

Superintending Engineer of the circle was to be final. The learned

Single Judge also noted that after completion of the work, meetings

were convened. The minutes of the meeting disclosed that the

appellant participated in such meetings with regard to claim for

2026:CHC-OS:16-DB

carriage of departmental materials for distance beyond initial 20 km.

The claim of the appellant was considered and discussed in the first

meeting held on June 27, 1995. It was further discussed in the second

meeting dated July 14, 1995 and a final order was issued on August

28, 1995 by the Superintending Engineer. Learned Trial Court also

observed that the plaint filed on behalf of the appellant did not contain

any statement to the effect that the order dated August 28, 1995 was

not accepted by the appellant or it was passed in violation of any term

of the contract.

30. According to Clause 18 of the contract, the appellant was not

entitled to claim transportation cost of the building materials. It was to

be borne by the appellant himself. By a letter dated December 13,

1991, the appellant intimated the respondent that the work had been

completed and asked for a refund of the security deposit. By another

letter dated January 1, 1992, the appellant claimed reimbursement for

extra expenditure. The appellant also disputed the measurements of

different items of work recorded in the measurement book by a letter

dated March 2, 1992. By another letter dated March 16, 1992, the

appellant withdrawn his protest noted on the final bill prepared on the

basis of measurements dated February 21, 1992. It was observed by

learned Trial Judge that after withdrawing his protest, the appellant

2026:CHC-OS:16-DB

was estopped from raising any dispute in connection with the

measurements.

31. Evidence on record goes to show that final bill was made ready

and it was communicated to the appellant by a letter dated February

7, 1994 by the Executive Engineer. The appellant raises claim by a

letter dated November 22, 1993 addressed to the Chief Engineer which

was relegated to the Executive Engineer in terms of clause 12 of the

contract, with intimation to the appellant. It transpires that in terms of

letter dated June 15, 1998 issue by the Executive Engineer; all the

claims raised by the appellant were paid by voucher No. 8 dated

February 29, 1996, in terms of an order passed by the Superintending

Engineer, Project Construction Circle. The final bill of the appellant

was paid by T. O. Voucher No. Seven dated February 29, 1996. In such

fashion, the claims raised on the part of the appellant were finally

decided by the authorities. Nothing has been placed before us, at the

time of hearing, that the appellant was entitled for any claim other

than that was decided and paid to the appellant after affording due

opportunity to the appellant of hearing, in accordance with the terms

and conditions of the contract between the parties. In such view of the

facts, we are of the opinion that the learned Trial Court was quite

justified in deciding issue Nos. 3 to 6 against the appellant/plaintiff.

2026:CHC-OS:16-DB

32. Since, on the basis of evidence led at the trial, we are of the

opinion that the appellant has not been able to justify that the delay

caused in the completion of the project work was attributable to the

respondent/defendant. We have also come to a conclusion that the

appellant was paid all his bills including the final bill as well as the bill

raised for the additional works upon affording the appellant a

reasonable opportunity of hearing, we find no materials to hold that

the appellant is entitled for any damages.

33. In the light of discussions made hereinbefore, we find no

reason to interfere with the impugned judgment and decree. We affirm

the same.

34. Consequently, the instant appeal being AD-COM 1 of 2024

and CS 103 of 1999 along with all connected applications, if any, are

hereby dismissed however without any order as to costs.

35. Urgent photostat certified copy of this judgment, if applied for,

be supplied to the parties on priority basis upon compliance of all

formalities.

[MD. SHABBAR RASHIDI, J.]

36. I agree.

[DEBANGSU BASAK, J.]