K Sambasiva Raju vs M/S Essar Constructions Ltd
2024 Latest Caselaw 26576 Kant

Karnataka High Court

K Sambasiva Raju vs M/S Essar Constructions Ltd on 7 November, 2024

Author: S.G.Pandit

Bench: S.G.Pandit

                        -1-




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

 DATED THIS THE 7TH DAY OF NOVEMBER 2024

                     PRESENT

    THE HON'BLE MR. JUSTICE S. G. PANDIT

                       AND

   THE HON'BLE MR. JUSTICE C.M.POONACHA

        R.F.A. NO.851 OF 2012 (MON)
                       C/W
       RFA.CROB. NO.3 OF 2013 (MON)

R.F.A. NO.851/2012

BETWEEN:

K SAMBASIVA RAJU
S/O LATE SRI K A NARASIMHA RAJU
AGED ABOUT 60 YEARS
OCC: CONTRACTOR, R/O PLOT NO.118
NCC ENCLAVE, MEDCHAL ROAD
SECUNDERABAD-500055.
                                   ... APPELLANT
(BY SRI. PRASAD RAO, ADV. A/W
 SRI SAMPATH BAPAT, ADV.)

AND:

  1. M/S. ESSAR CONSTRUCTIONS LTD.,
     REP. BY ITS EXECUTIVE DIRECTOR
     ESSAR HOUSE, 11, KESHAVRAO MARG
     MAHALAKSHMI, MUMBAI-400034.
                         -2-




  2. THE SENIOR PROJECT MANAGER WORKS
     (PACKAGE IV & V)
     M/S. ESSAR CONSTRUCTIONS LTD.,
     JUBILEE COMPLEX
     25TH KM, PB ROAD, HONNUR
     GOLLAHATTI,
     DAVANGERE-577556.
                                  ...RESPONDENTS
(BY SRI BHARGAVA D BHAT, ADV. FOR R1)

     THIS APPEAL IS FILED UNDER SECTION 41 RULE 1 &
2 R/W SECTION 96 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 07.03.2012 PASSED IN OS NO.82/2007
ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE,
DAVANAGERE, PARTLY DECREEING THE SUIT FOR
RECOVERY OF AMOUNT.


RFA.CROB.NO.3/2013

BETWEEN:

ESSAR PROJECTS (INDIA) LIMITED
(FORMERLY KNOWN AS M/S. ESSAR
CONSTRUCTION LTD.,)
ESSAR HOUSE, 11,
KESHAVRAO KHADYE MARG
MAHALAKSHMI,
MUMBAI-400034
REPRESENTED BY ITS
DEPUTY GENERAL MANAGER
AND ALSO THE GPA HOLDER OF
THE APPELLANT.

(THE 2ND DEFENDANT SENIOR PROJECT MANAGER
WAS IN EXISTENCE WHEN THE CONSTRUCTION
WORK WAS IN PROGRESS. AFTER COMPLETION
                         -3-




OF THE WORK THE POST OF SENIOR PROJECT
MANAGER IS NOT IN EXISTENCE. HENCE NOT
MADE AS PARTY TO THIS CROSS OBJECTION).
                                  ... CROSS OBJECTOR
(BY SRI BHARGAVA D. BHAT, ADV.)


AND:

SRI K SAMBASIVA RAJU
S/O LATE SRI K A NARASIMHA RAJU
AGED ABOUT 60 YEARS
CONTRACTOR
R/O H.NO.PLOT NO.118
NCC ENCLAVE, MEDCHAL ROAD
SECUNDERABAD-500055
ANDHRA PRADESH.
                                  ... RESPONDENT
(BY SRI. PRASAD RAO, ADV. A/W
 SRI SAMPATH BAPAT, ADV.)


    RFA.CROB IS FILED IN RFA 851/2012 FILED U/O 41,
RULE 1 & 2 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 07.03.2012 PASSED IN O.S.82/2007 ON
THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE,
DAVANAGERE, PARTLY DECREEING THE SUIT FOR
RECOVERY OF AMOUNT.

     RFA NO.851/2012 AND RFA.CROB.NO.13/2013
HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
03.09.2024 COMING ON THIS DAY, S.G.PANDIT J.,
PRONOUNCED THE FOLLOWING:

CORAM:   HON'BLE MR JUSTICE S.G.PANDIT
         and
         HON'BLE MR JUSTICE C.M. POONACHA
                             -4-




                    CAV JUDGMENT

(PER: HON'BLE MR JUSTICE S.G.PANDIT)

Plaintiffs' appeal under Section 96 of the Code of

Civil Procedure, 1908 aggrieved by judgment and

decree dated 07.03.2012 in O.S.No.82/2007 on the

file of I Additional Senior Civil Judge at Davanagere

(for short, 'Trial Court'), by which, suit for recovery of

amount is partly decreed, rejecting major portion of

the claim.

2. The parties to this appeal would be referred

to as they stood before the Trial Court.

3. Plaintiff presented the plaint with a prayer

for a judgment and decree for recovery of a sum of

Rs.2,01,24,111/- with 24% interest per annum in

favour of the plaintiff against the defendants jointly

and severally. It is the case of the plaintiff that the

second defendant entered into a contract with the

plaintiff for execution of work i.e., excavation from

borrow source, transportation, dumping, spreading,

watering, greeding and compaction to most

specifications at Ranebennur bypass inclusive of testing

the whole duration of the work. It is stated that the

work order was issued on 01.09.2003 (Ex.P1) and in

terms of the work order the period of contract was

from 01.09.2003 to 31.12.2003. The work is to be

carried out as per instructions of Engineer In-charge.

The plaintiff was assured of 7,50,000 CUM of earth

work and for which payment shall have to be made

within thirty working days from the date of submission

of the bill. That on discretion of the first defendant and

based on the availability, diesel or any material shall be

issued to the plaintiff for construction and execution of

works in question and value of the same will be

recovered from RA bills. It is also stated that the

defendants have the right to increase/decrease the

scope of work and change the location. The contract

could be terminated by the defendants by giving seven

days notice if they are not satisfied with the

performance of the works executed by the plaintiff and

the plaintiff would not be entitled for any computation

or claim in that regard. Plaintiff further states that

pursuant to the work order and taking into consideration

the nature of work, he made all arrangements by

engaging required men, machinery and material and

deployed them at the site so as to complete the work

within the stipulated time. It is the case of the plaintiff

that though the work entrusted have been executed as

per specifications and as per the instructions of the

Engineer In-charge, payments were not made by the

defendants in terms of the contract, due to which, the

plaintiff suffered heavy financial loss. It is specifically

averred that as per the terms and conditions of the

contract, the defendants were obliged to show borrow

area from where necessary required earth have to be

procured. The contract work could not be completed

before 31.12.2003 on account of non-availability of

sufficient quantity of earth in the borrow area shown

by the defendants. The plaintiff could not achieve

progress of work as he had to move from one borrow

area to other borrow area as shown by the defendants.

Plaintiff further states that taking into consideration the

above and considering the letter of the plaintiff dated

18.12.2003, period of contract was extended up to

31.05.2004 and the same was confirmed by

defendants' letter dated 25.12.2003. It is further

stated that the defendants failed to show designated or

approved borrow area even during the extended

contract period, in spite of several requests made by

the plaintiff. Having waited, the plaintiff is said to have

written a letter dated 30.01.2004 informing about the

mobilization of men and machinery, which have

become completely idle because of non-showing of

borrow area and requested to do the needful at an

early date. Plaintiff states that the defendants having

failed to show the borrow area and having failed to

fulfill their part of contractual obligations and having

not paid the bills in terms of the contract for the works

executed, there is breach of contract by the

defendants. The plaintiff further states that to avoid

further loss, withdrew the machinery deployed at sites

from 10.03.2004 by keeping only skeleton staff. The

plaintiff addressed a letter dated 26.06.2004 informing

all the problems and sufferences encountered and

sought for settlement of payment in terms of the

contract and requested to refund of payments illegally

deducted from out of the bills towards diesel supplied

in excess of the rates fixed together with interest at

18%. It is the further grievance of the plaintiff that the

defendants dodged the plaintiff in making payment of

even admitted amounts and have not paid any final bill

to the extent of works executed and further failed to

entrust the works as agreed and pressurized for giving

no claim certificate in a dotted lines for the reasons

best known to them. The plaintiff got issued a legal

notice dated 18.10.2004 calling upon to make

payments of claim within 15 days and defendants

replied the said notice on 14.03.2005 falsely denying

the claim of the plaintiff.

4. The plaintiff claimed a sum of

Rs.34,86,028/- as the defendants had failed to make

payment for actual work carried out with regard to

earth work; claimed a sum of Rs.23,58,864/- towards

obtaining suitable material from excavation at borrow

area; claimed a sum of Rs.8,05,182/- towards

difference in quantity of lease charges; claimed a sum

of Rs.43,85,010/- towards loss of profit; claimed a

sum of Rs.24,85,000/- towards loss of idle charges;

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claimed a sum of Rs.5,67,000/- towards refund of the

excess excise duty recovered with interest at the rate

of 18% p.a., from 15.05.2004 till the date of suit and

24% p.a., from the date of suit till realization.

5. On service of summons, defendant No.1

failed to appear and was placed exparte. Defendant No.2

filed written statement through its Advocate denying the

whole claim, but admitted the entrustment of work under

Ex.P1 work order. It is stated that the contract period

was from 01.09.2003 to 31.12.2003 and the plaintiff

was required to carry on work as per specifications of

Clause (305) which is self explanatory. The second

defendant specifically denied the averment in the plaint

that the plaintiff was assured work of execution of

7,50,000 CUM of earth work for which, payment will

have to be made within thirty days from the date of

submission of the bill as false. Further it is stated that

the plaintiff has to do the work as per the stipulations

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made in the work order. Without completing the work

as per the stipulations, the plaintiff has no right to

submit the bill. The second defendant specifically

stated that the defendant company has made the

payments to the plaintiff in time as per the actual

work done by the plaintiff. The claim put forth by the

plaintiff was very high and the same was not

proportionate with the actual work done. The plaintiff

except commencing the work as per schedule has not

carried out the work as per schedule and thereby the

plaintiff has committed the breach of the terms and

conditions of the work order. The second defendant

specifically denied the averment of the plaintiff that

the contract shall be terminated by the defendants by

giving seven days notice if not satisfied with the

performance of the work as distorted version. The

second defendant specifically denied the allegation of

the plaintiff that the plaintiff executed work as per

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specifications and as per instructions of the Engineer

In-charge, payments were not made by the defendants

in terms of the contract and consequently the plaintiff

suffered heavy financial loss, as totally false.

6. The defendants specifically denied the

allegation of the plaintiff that as per the terms and

conditions of the contract the defendants obliged to

show borrow area from where necessary required earth

have to be procured, as false. The defendants admit

that contract work to be completed by 31.12.2003, but

denied the allegation that the work could not be

completed on account of non-availability of sufficient

quantity of earth in the borrow area shown to the

plaintiff by defendants. This defendant also denied the

allegation that the contract period was extended up to

31.05.2004, taking note of the problems of the plaintiff

and considering the letter of the plaintiff dated

18.12.2003 saying that the same is distorted version of

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the plaintiff. The second defendant also specifically

denied the allegation that the defendants failed to

show any designated or approved borrow area for

importing necessary earth. Further, the defendants

denied the allegation that the defendants have

committed breach of contract by not fulfilling their part

of contractual obligations right from the inception of

entrustment of work as such they are liable for

consequences and losses suffered by the plaintiff as

false. The defendants admit writing letter dated

09.06.2004 and states that the contents of the letter

are self explanatory. Further, it is stated that the

plaintiff has given no claim certificate on 10.06.2004 at

the time of receiving the payment of final bill amount

by giving no claim statement, the plaintiff has

unequivocally and categorically admitted that nothing

is due by the defendants to the plaintiff. The

defendants have specifically contended that the

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plaintiff has no right to interpret any of the terms and

conditions of the work order so as to suit his

convenience.

7. Lastly, the defendants contend that the

defendants made payment to the plaintiff on

31.12.2003, 17.01.2004, 17.02.2004, 19.03.2004,

17.05.2004 and 10.06.2004 and all these payments

are duly acknowledged by the plaintiff. As the plaintiff

has received the payments stated above, by issuing

no claim certificate, nothing is payable by the

defendants to the plaintiff. There is no cause of action

for filing the suit and the plaintiff is not entitled for

any relief or reliefs, as such prayed for dismissal of

the suit.

8. Based on the above pleadings, the Trial

Court framed as many as 13 issues which reads as

follows:

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"1) Whether the plaintiff proves that as per the work order Dt: 01/09/2003 he had to execute excavation work as detailed in para 1 of the plaint ?

2) Whether the plaintiff further proves that as per the work contract he was required to execute 7,50,000 cum of earth work for which payments were to be made as per Annexure-I appended to the work order?

3) Whether the plaintiff proves that the defendants have not made payments to him as per the terms of contract, due to which he suffered financial loss?

4) Whether the plaintiff further proves that on account of default and wrongful act on the part of the defendants the work could not be completed?

5) Whether the plaintiff proves the alleged breach of terms of contract by the defendants as alleged in para 4 of the plaint ?

6) Whether the plaintiff further proves the default of the defendant in making payment of bills to him in terms of contract?

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7) If so, whether the plaintiff is entitled for recovery of the suit claim amounts from the defendants as sought for?

8) Whether the second defendant proves that the plaintiff himself is guilty of breach of the terms of contract as contended in paras-8,11, 13 & 18 of his written statement?

9) Whether the second defendant proves his discharge from liability from paying the suit claim amounts in view of 'No Claim Certificate' issued by the plaintiff on 10/06/2004?

10) Whether the second defendant further proves that the suit of the plaintiff is barred by limitation?

       11)      Whether the suit of the plaintiff is
hit    by      the      doctrine         of    estoppel           and
acquiescence?


       12)      Whether         the      second        defendant

further proves the alleged payment of amount to the plaintiff as contended in para-32 of the written statement?

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13) What order or decree ?"

9. In support of his case, plaintiff examined

himself as PW1 and no other supporting witness is

examined apart from marking Ex.P1 to Ex.P32.

Defendants examined three witnesses as DW1 to DW3

and marked documents Ex.D1 to Ex.D25 in support of

their case. The Trial Court under impugned judgment,

decreed the suit to an extent of Rs.2,15,868/- holding

defendants are jointly and severally liable to pay the

said amount with interest at the rate of 18% p.a.,

from the date of the suit till realization, rejecting

major portion of the claim of the plaintiff. Plaintiff is in

appeal against portion of the judgment and decree by

which, his major claim is rejected.

10. Heard learned counsel Sri.Prasad Rao for

Sri.Sampat Bapat, learned counsel for

appellant/plaintiff, learned counsel Sri.Bhargav D.

- 18 -

Bhat, for respondents/defendants. Perused the appeal

papers as well as the Trial Court Records.

11. Learned counsel Sri.Prasad Rao for

appellant/plaintiff would submit that the Trial Court

committed grave error in rejecting major claims of the

plaintiff and only in decreeing to an extent of

Rs.2,15,868/- with 18% interest. Learned counsel

would submit that impugned judgment and decree is

the result of non-looking into the materials on record

and failure to appreciate the evidence on record.

Learned counsel would submit that the defendants

have not disputed the entrustment of work in terms of

work order dated 01.09.2003 (Ex.P1). Learned

counsel referring to Ex.P1 submits that, the major

portion of the work is excavation at borrow area and

transportation of earth from borrow area to the work

area. Since the defendants failed to identify the

borrow area and handover the same to the plaintiff,

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the plaintiff could not progress with the work, even

though the plaintiff had mobilized men and machinery.

As the mobilized men and machinery were to be kept

idle because of non-identification of borrow area, the

plaintiff would be entitled for idling charges. Further,

learned counsel would submit that even during the

extended period of contract, the defendants failed to

identify and handover borrow area which resulted in

further delay in carrying out the entrusted work.

Learned counsel would further submit that even the

bills submitted for the works carried out were not

paid. Learned counsel would further submit that the

defendants assured 7,50,000 CUM of earth work

quantity as per specification in terms of Ex.P1, but

failed to record proper measurement of the work

carried out by the plaintiff. Learned counsel would also

submit that the defendants alleged certain adhoc

payments not with reference to the actual works,

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without furnishing any particulars, obtaining signature

of the plaintiff on the RA bills prepared by the officials

of the defendants. It is specifically contended by the

learned counsel that payments have not been made

on the running bills at Ex.P16 to Ex.P19 which

resulted in breach of contract. Learned counsel for the

appellant/plaintiff would submit that the defendants

have not properly made payments for the work

executed as per the terms of specifications under the

strict supervision of defendants' engineers. Learned

counsel would further submit that the defendants

have failed to place on record the certification said to

have been made in respect of the works carried out by

the plaintiff. Learned counsel would submit that the

defendants have failed to make payments to the

plaintiff in respect of actual works turned out by the

plaintiff. Learned counsel would submit that plaintiff

as a sub-contractor has executed certain works and

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those works have to be measured and basing on that

measurement quantities which should be arrived at,

the plaintiff would raise the bills in the name of its

company. Learned counsel would further submit that

NHAI has entrusted certain works to the defendants

and in turn, a portion of the work was entrusted by

defendants to the plaintiff.

12. Learned counsel for the plaintiff inviting

attention of this Court to Ex.P1 - Work order submits

that, joint measurement in the presence of the

plaintiff and defendants' representative is mandatory

and the same shall be taken into consideration for

payment. It is submitted that in respect of Ex.P16 to

Ex.P19 - RA bills, though joint measurements have

not been taken, the defendants have taken signature

of the plaintiff on those RA Bills and adhoc payments

were made. Learned counsel would submit that DW1

in his cross-examination admitted the execution of

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excavation work by the plaintiff and in terms of the

work carried out, defendants have failed to make

payment. Thus, learned counsel would submit that the

claims made in the plaint are for the works carried out

by the plaintiff and also towards the period during

which the plaintiff could not carry out the work

resulting in keeping the men and machinery idle,

during which period if he worked could have earned

profit. Thus, learned counsel taking through the

entire evidence and documents on record, submits

that the Trial Court committed grave error in rejecting

the claim of the plaintiff and prays to allow the appeal.

13. On the other hand, learned counsel

Sri.Bhargav Bhat appearing for defendant No.2 and

Cross-Objector supports the judgment and decree

passed by the Trial Court, but opposes the portion of

judgment by which entire cost is awarded to the

plaintiff. Learned counsel would submit that vide order

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dated 20.04.2018 of the National Company Law

Tribunal, Mumbai Bench (NCLT) admitted EPC

Constructions India Ltd., into Corporate Insolvency

Resolution Process (CIRP) in terms of the provisions of

the Insolvency and Bankruptcy Code, 2016. It is also

submitted that NCLT appointed Mr.Abhijith

Guhathakurta as the Resolution Professional (RP) of

the Corporate Debtor and subsequently NCLT by order

dated 07.05.2021, directed initiation of liquidation of

the Corporate Debtor. Further, it is stated that

Corporate Debtor is in its last stage of a Court

appointed liquidation process. Since the liquidation

proceedings is in progress, he submits that the

present proceedings cannot continue inasmuch as it

would hamper the liquidation process. Further,

without prejudice to the above contention, learned

counsel would contend that the judgment and decree

under appeal is reasoned one and the Trial Court has

- 24 -

addressed all issues and would corroborate with the

documents on record. Thus, he prays for dismissal of

the appeal.

14. On hearing the learned counsel appearing

for the parties and on perusal of the entire records,

the following points would arise for our consideration:

1. Whether the Trial Court is justified in decreeing the suit only in respect of claim item No.2.04(a) to the tune of Rs.2,15,868/- and in rejecting other claims?

2. Whether as contended by the defendants, the present proceedings cannot be continued?

15. Answer to the point No.1 would be in

affirmative and to point No.2 in the negative for the

following reasons:

16. It is an admitted fact that NHAI had

entrusted certain work to defendants. The defendants

- 25 -

in turn had entrusted a portion of the work entrusted

to them by the NHAI to the plaintiff. There is no

dispute with regard to entrustment of work by

defendant No.2 to the plaintiff in terms of work order

dated 01.09.2023, (Ex.P1). The scope of work

entrusted to the plaintiff was excavation from barrow

source, transportation, dumping, spreading, watering,

grading and compaction to most specifications at

Ranebennur by-pass inclusive of testing the whole

duration of the work. In terms of the work order, the

quantity of work entrusted was 75,000 CUM. The

contract amount was indicated as at Annexure-A1 to

work order Ex.P1. The measurement Clause of

contract i.e. work order at Ex.P1 reads as follows:

"Quantities are indicated in BOQ is tentative. Quantities approved/accepted and certified for payments by Essar/consultant client shall be considered for payment. Joint measurement shall be taken in presence of your and Essar's representatives and the same

- 26 -

shall be considered for payment. Resources are to be provided as per the requirement of site management. The material delivery shall be as per the requirement of our engineers."

17. A reading of the above Clause makes it

abundantly clear that joint measurement shall be

taken in the presence of plaintiff's representative as

well as the representative of defendants and the said

joint measurement shall be the basis for payment.

Further, it also makes it clear that the quantities

approved/accepted and certified for payments by the

defendants or consultant of defendants shall be

considered for payment. The Clause with regard to RA

Bills under Ex.P1 work order reads as follows:

"The R.A. bill shall be prepared on monthly basis and submitted to our accounts department. All the bills shall be raised on Essar constructions Ltd., and the same shall be verified and certified for payment by our Engineer concerned. Cost for all services rendered shall be recovered from your bills."

- 27 -

18. The above Clause would state that the RA

Bills shall be prepared on monthly basis and shall be

raised on the defendants' construction company which

shall be verified and certified for payment by the

defendants' engineer concerned.

19. In the light of the undisputed Ex.P1 - work

order, entrustment of work and quantity of work to be

executed by the plaintiff i.e. 75,000 CUM is proved,

but the grievance of the plaintiff is that borrow area

was not identified and handed over to the plaintiff

which resulted in delay in execution of work and the

defendants failed to make payment for the works

carried out and in terms of RA Bills submitted.

20. Ex.P1, work order dated 01.09.2003 is the

suit document and the case of the plaintiff as well as

defendants rests on the said document. A perusal of

Ex.P1, work order indicates that, period of contract

- 28 -

was from 01.09.2003 to 31.12.2003. But, admittedly

plaintiff could not execute the work during the said

contract period and in terms of Ex.P3 - letter dated

18.12.2003, sought extension of time till 31.05.2004

so as to complete the work entrusted to him. The

reason stated in Ex.P3, letter dated 18.12.2003 is that

on account of non-availability of sufficient quantity of

earth in the borrow areas, he could not procure the

required earth for completion of work. Accordingly, in

terms of Ex.P4 - letter dated 25.12.2003 of the

defendants, the contract period was extended up to

31.05.2004 on the same terms and conditions of the

original work order. A careful reading of Ex.P1-work

order dated 01.09.2003, it would not indicate with

regard to borrow area and it is not a pre-condition for

the defendants to identify and hand over borrow area

to the plaintiff to commence his work or to complete

his work.

- 29 -

21. PW1 i.e. plaintiff in his cross-examination

has admitted that Ex.P1 contains the terms of contract

and he has agreed to work in terms of the said work

order. He has also admitted in his cross-examination

that the work entrusted by the defendants to him is

the work of NHAI. It is also admitted by PW1 that he

was working as sub-contractor under the defendants.

Further PW1 states that in terms of Ex.P1, work

carried out by him is to be jointly measured, but the

work carried out by him is not measured in the

presence of the representative of the defendants. It is

the claim of the plaintiff that Ex.P1 to Ex.P23 indicates

the work carried out by him. But, he also admits that

he has not obtained signature of the representative of

the defendants on the said Exhibits. At paragraph 19

of PW1's cross-examination, PW1 has categorically

admitted that there is no mention in Ex.P1 as to

whether the defendants have to provide or show or

- 30 -

arrange the borrow area. If that is the admission and

if that is the terms and conditions on which plaintiff

has agreed to carry out the work in terms of Ex.P1-

work order, the plaintiff cannot blame the defendants

that the defendants have failed to arrange or show the

borrow area, which resulted in delay in execution of

work.

22. In terms of Ex.P1-work order, the bills

submitted by the plaintiff qualifies for payment only if

it contains the certificate for payment by the

consultant of the defendants and if it is on the joint

measurement of plaintiff and defendants'

representatives, but none of the bills submitted by the

plaintiff is admittedly not based on the joint

measurement of the plaintiff and defendants'

representatives or it is certified by the engineer of the

defendants. At paragraph 16 of the cross-examination

of PW1, PW1 has stated as follows:

- 31 -

".................... £Á£ÀÄ PÉÊUÉÆAqÀ AiÀiÁªÀÅzÉà PÉ®¸ÀzÀ C¼ÀvÉAiÀÄ£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀ ¸ÀªÀÄPÀëªÀÄzÀ°è C¼ÀvÉ ªÀiÁr¹®è. ¥ÀæwªÁ¢AiÀÄjUÉ ºÀt ¥ÁªÀjUÁV ©¯ï UÀ¼À£ÀÄß PÀ¼ÀÄ»¸ÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è CªÀÅUÀ¼À eÉÆvÉ PÀªÀjAUï ¯ÉlgÀ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ £Á£ÀÄ JµÀÄÖ PÉ®¸À ªÀiÁrzÉÝÃ£É JAzÀÄ vÉÆÃj¸ÀĪÀ zÁR¯ÉUÀ¼À£ÀÄß MzÀV¹®è. ............. £Á£ÀÄ JµÀÄÖ PÉ®¸À ªÀiÁrzÉÝÃ£É J£ÀÄߪÀÅzÀgÀ DzsÁgÀzÀ ªÉÄÃ¯É £À£ÀUÉ ¥ÀæwªÁ¢AiÀÄjAzÀ ºÀt ¥ÁªÀw DUÀ¨ÉÃQvÀÄÛ JAzÀgÉ ¤d. £Á£ÀÄ JµÀÄÖ PÉ®¸À PÉÊUÉÆArzÉÝÃ£É JAzÀÄ vÉÆÃj¸ÀĪÀ zÁR¯ÉAiÀÄ£ÀÄß ºÁdgÀÄ¥Àr¸ÀzÉà ¥sÉÊ£À¯ï ©¯ï vÀAiÀiÁj¸À®Ä DUÀĪÀÅ¢®è.. ................. £Á£ÀÄ JµÀÄÖ PÉ®¸À ªÀiÁrzÉÝÃ£É JAzÀÄ vÉÆÃj¸À®Ä zÁR¯ÉUÀ¼À£ÀÄß £Á£ÀÄ EnÖ®è. .............. ¤¦ 1 jAzÀ ¤¦ 23 zÁR¯ÉUÀ¼ÀÄ £Á£ÀÄ JµÀÄÖ PÉ®¸À ªÀiÁrzÉÝÃ£É JAzÀÄ vÉÆÃj¸ÀĪÀ zÁR¯ÉUÀ¼ÁVgÀÄvÀzÉ . ¥ÀæwªÁ¢AiÀÄgÀ AiÀiÁªÀÅzÉÃ

- 32 -

¥Àæw¤¢AiÀÄÄ ¸À»AiÀÄ£ÀÄß ¤¦ 21 jAzÀ ¤¦ 23gÀ zÁR¯ÉUÀ¼À ªÉÄÃ¯É £Á£ÀÄ ¥ÀqÉzÀÄPÉÆAr®è."

23. Further, PW-1 has stated that he has no

knowledge about the specifications issued by the

Ministry of Road Transport and Highways with regard

to road and bridge work and he has also no knowledge

about the specifications issued by the Ministry of Road

Transport and Highways. He has also admitted that

there is no mention in Ex.P1 as to whether the

defendants have to provide or show or arrange the

borrow area. He has further stated that he has not

prepared the measurement sheet and have no

documents to show that joint measurement is done as

mentioned in the work order.

24. On the contrary, evidence of defendants

i.e. DW1 states that plaintiff is a sub-contractor and

the work entrusted to the plaintiff is the work given by

the NHAI. If the plaintiff had carried out work,

- 33 -

certainly the measurement of the work done by him

would have taken jointly and certified by ICT Ltd. DW1

has also stated that the plaintiff located the borrow

area and requested for soil testing. The borrow areas

located by the plaintiff is approved by the ICT, which

is consultant of NHAI. DW1 specifically states that

plaintiff has to maintain the measurement sheets in

respect of the work entrusted to him, but the plaintiff

has not maintained any measurement sheets. As the

plaintiff has not maintained the measurement sheets,

there is no basis for the claim made by plaintiff. It is

also stated that the plaintiff has not taken signatures

of any of the authorized representatives of the

defendants for any of the documents maintained by

him with regard to the work executed by him. DW1 in

his cross-examination has stated that for each work

undertaken by defendants, there would be Project

Manager and there would be separate contract cell to

- 34 -

monitor the sub-contractor's work. It is the case of

the defendants that they have recorded the joint

measurement in the presence of PW1 in respect of the

work carried out and they are marked as Ex.D2 to

Ex.D12. But, DW1 or his representatives have not

signed on those exhibits. Further, DW1 states that in

terms of Ex.D2 to Ex.D12, interim payments have

been made. It is also stated that Ex.D14 is the

document which shows the payment of RA bills of

DW1 on month-wise. It is stated that payment made

to the plaintiffs are based on Ex.P16 to Ex.P19 and on

actual work done.

25. From a careful analysis of the oral evidence

and documents on record, it could be said that the

plaintiff was entrusted work in terms of Ex.P1 and the

scope of work was mainly excavation from the borrow

source, transportation, dumping, spreading, watering,

grading and compaction to most specifications at

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Ranebennur Bypass. The work entrusted was

approximately 7,50,000 CUM. For payment, the

certificate by Essar/consultant shall be the basis

and also joint measurements taken in the

presence of representatives of both the plaintiff

and defendants. All the bills shall be verified and

certified for payment by the defendants' engineer

concerned. PW1 has admitted that there was no

joint measurement and RA bills submitted by him

were without joint measurements. It has also

come on record that the plaintiff has not

maintained measurement sheets. There is no

document to establish the volume of work

carried out by the plaintiff. The plaintiff would be

entitled for payment for the actual work carried out by

him. The defendants' evidence would show that they

have measured the work done by the plaintiff, but

plaintiff or his representative have not signed the

- 36 -

measurement carried out by them. It is also

established that the defendants have made interim

payment to the plaintiff to the extent of work carried

out by him, in terms of the measurement carried out

by the defendants.

26. The Trial Court under the judgment under

appeal has considered each claim of the plaintiff and

has recorded its findings. The Trial Court has found

that the plaintiff is entitled for claim amount only in

respect of item No.2.04(a). Trial Court on examination

of entire material on record has rightly come to the

conclusion that when PW1 himself proved to have

committed breach of terms of Ex.P1, he would not be

entitled to claim any amount under any of the Heads.

From careful examination of material on record as well

as careful scrutiny of the judgment under appeal, we

come to the conclusion that plaintiff has not

maintained any authenticated records to establish the

- 37 -

quantum of work carried out by him, when it is an

admitted fact that plaintiff would be entitled for

payment to the extent of work carried out by him.

Moreover, Ex.P10 is 'No Claim Certificate' issued by the

plaintiff himself, but that itself would not bar the

plaintiff from making any claim. But, it would have

some relevance to the claim made by the plaintiff in

relation to his admissions in the cross-examination.

27. With regard to point No.2, we need not

dwell much since we do not find any merit in the

appeal. Moreover, this is an appeal of the year 2012

instituted much earlier to the initiation of proceedings

under 2016 Code.

28. For the reasons recorded above, we do not

find any merit in any of the contentions of the

appellant/plaintiff to entertain the appeal and also in

- 38 -

the contentions of the respondents/defendants to

entertain the Cross Objections. Hence, the following:

ORDER

i) Regular First Appeal as well as Cross

Objections stand rejected.

ii) The judgment and decree dated

07.03.2012 in O.S.No.82/2007 on the

file of the I Additional Senior Civil

Judge at Davanagere is confirmed.

Sd/-

(S.G.PANDIT) JUDGE

Sd/-

(C.M. POONACHA) JUDGE

NC CT: bms