Madras High Court
Sree Ganesh & Co vs The State Of Tamil Nadu on 29 November, 2023
Author: R. Subramanian
Bench: R. Subramanian
A.S.No. 438 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 07.11.2023
Judgment Pronounced on : 29.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE R. SUBRAMANIAN
And
THE HONOURABLE MR. JUSTICE N. SENTHILKUMAR
A.S.No. 438 of 2014
Sree Ganesh & Co.,
a Registered Partnership Firm
represented by its Managing Partner
N. Ganesan. .. Appellant
Versus
1. The State of Tamil Nadu,
Represented by the Superintending Engineer (H),
Nabard and Rural Circle,
Maravaneri Extension,
Salem-636 007.
2. The Divisional Engineer,
(High Ways),
Nabard and Rural Roads,
Coimbatore. .. Respondents
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1/19
A.S.No. 438 of 2014
Appeal Suit filed under Section 96 and Order 40, Rule 1 of the Code
of Civil Procedure against the Judgment and Decree in O.S.No. 95 of
2010, dated 20.12.2013, on the file of the II Additional District Judge,
Salem.
For Appellant : Mr.T.R. Rajagopalan
Senior Counsel
For Mr.T.R.Rajaraman
For Respondents : Mr.T.Chandrasekaran
Special Government Pleader (Civil Side)
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JUDGMENT
N. SENTHILKUMAR, J.
This First Appeal has been preferred against the Judgment and
Decree in O.S.No.95 of 2010, dated 20.12.2013 passed by the learned II
Additional District Judge, Salem.
2. The appellant/plaintiff has filed the suit in O.S.No. 95 of 2010
under Section 26 and Order 7, Rules 1 to 14 of the Code of Civil Procedure
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against the defendants 1 and 2 for directing the respondents/defendants to
pay the suit amount with future interest amounting to Rs.44,60,919/-.
3. The case of the plaintiff is that the first defendant invited
Tenders for construction of a High Level Bridge across Aliyar river near
Atthupollachi including formation and improvement of approach road
from Km 85/4 of Avinasi-Thiruppur-Palladam-Pollachi-Cochin Road, Via
Meenakarai to Aathupollachi Km 0/0-3/2 and the plaintiff's tender was
accepted by the first defendant. An agreement was entered between the
plaintiff and the first defendant on 21.02.2007 in CR481A/06-07 for a
value of Rs.3,65,59,759/-. The time for completing the work was 15
months and based on the agreement dated 21.02.2007, the plaintiff
commenced the work as per schedule and the work was completed on
23.12.2008. After completion of work, the first defendant has issued the
completion certificate to the plaintiff on 31.12.2008.
4. According to the plaintiff, a prohibitory order was passed by
this Court in respect of sand quarrying from Paramiyam Depot in
Akkaraipalayam Village. The Superintending Engineer, Public Works
Department, has notified the same by way of Letter No.
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JDO/71B/662M/06, dated 12.12.2006. The designated quarry, which is
situated at 82/8 Km in SH-19, from where gravel and Carted Earth were to
be quarried was partly used as a road and hence gravel and carted earth
could not be quarried to complete the construction. The same was also
informed to the second defendant by the plaintiff through Ex.A8 and
Ex.A11 dated 13.06.2008 and 07.08.2008. The plaintiff further submitted
that according to the terms of the contract, the rates were fixed for (i) Sand
Rs.256.00, (ii) Gravel and Carted Earth Rs.24.00 and (iii) Blue Metal and
Rough Stone Rs.89.10, and such materials were not available from the
designated quarries. As regards the prohibition order imposed by this
Court regarding quarring of sand from Parambiyam Depot and the same
was notified by the Superintending Engineer, Public Works Department by
way of letter in JDO/71B/662M/06, dated 12.12.2006. The plaintiff had
collected the sand from Cauvery River bed in Kulithalai and Musri sand
quarries, which is situated 140 kilo-metres away, with an extra additional
distance of 54 kilo-metres from the original designated quarry, that is,
Paramiyam Depot in Akkaraipalayam Village in Amaravathi River Bed.
5. It is the further case of the plaintiff that the gravel and Carted
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Earth were also collected from Palaiyur Village, which is situated at 20
kilo metres away, with an extra lead of 15 kilo-metres and Blue Metal and
Rough Stones were purchased from Five Star quarry, with a lead of 30
kilo-metres and additional lead of 9 kilo-metres. Therefore, the plaintiff
has furnished the excess expenditure incurred by him, which are as
follows:-
Sl. Description of Qnty / Difference in Total Cost
No. Material Cost of Conveyance of Conveyance
1 Metal 10605.82 cum @ Rs.57.90 Rs.614,077.00
2 Sand 4905.85 cum @ 237.50 Rs.1,165,139.00
3 Gravel 3040.28 cum @ 81.50 Rs.247,783.00
4 Carted Earth 29864.05 cum @ 81.50 Rs.2,433,920.00
Total Rs.4,460,919.00
6. The defendants 1 and 2 have submitted that, based on the
contract agreement entered into between the plaintiff and the first
defendant on 21.02.2007, the time to complete the said work was fixed as
15 months. One of the conditions specified in the tender itself is that the
plaintiff should have to inform about the sources from Paramiyam Depot,
where the plaintiff/Firm is intended to quarry the materials, and out of
which, the plaintiff has not incurred any additional expenditure. The
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defendants have specifically denied that the plaintiff has actually incurred
any loss, as set out in Paragraph No.8 of the plaint which is follows:-
“8. The plaintiff submits that according to the contract
the transport charges for collection of sand was Rs.256.00 but
the actual cost involved was Rs.494.50p and there was an
excess expenditure of Rs.237.50. Similarly as per contract, the
transport charges for gravel was Rs.24.00 whereas the
plaintiff incurred the expenditure of Rs.150.50 and there was
an excess expenditure of Rs.81.50. Similarly according to the
contract the rate for transportation of blue metal and rough
stone was Rs.89.10 whereas by the collection of the materials
from other sources the plaintiff was to pay Rs.147.00 and there
was an excess expenditure of Rs.57.90. The plaintiff is
herewith furnishing the particulars of the quantities of the
materials collected and the excess expenditure incurred by the
plaintiff.”
7. Further, the defendants have denied the receipt of notice dated
13.06.2008 and March 2009 issued by the plaintiff and the defendants had
not received any notice in the month of March 2009. However, the
defendants have received the notice dated 07.04.2009 and the 2nd defendant
had sent a reply notice to the plaintiff stating that as per the agreement
dated 21.02.2007, the plaintiff is not entitled any additional claim.
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8. Based on the above pleadings, the following issues were
framed by the trial Court:-
(i) Whether the plaintiff is entitled to the extra
cost incurred due to increase in the length of haul for
collecting materials for the construction of high level
bridge across Aliyar River ?
(ii) Whether the plaintiff is entilted to recover
the suit claim ? and
(iii) To what relief, if any, the plaintiff is entitled
to ?
9. Before the trial Court, PW1 and PW2 were examined and
Exs.A1 to A21 were marked on the side of the plaintiff. DW1 was
examined and Ex.B1 to Ex.B7 were marked on the side of the defendants.
10. Upon consideration of the above documents and the evidence
on record, the learned trial Judge dismissed the suit. Aggrieved by the
same, the plaintiff has preferred the present appeal.
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11. We have heard Mr.T.R. Rajagopalan, learned Senior Counsel
assisted by Mr.T.R.Rajaraman, learned counsel appearing for the
appellant/plaintiff and Mr.T.Chandrasekaran, learned Special Government
Pleader (Civil Side) appearing for the respondents/defendants.
12. The learned Senior Counsel appearing for the
appellant/plaintiff contended that the appellant/plaintiff issued a notice to
the defendants on 13.06.2008 as per Ex.A8, narrating the additional
expenditure incurred by the appellant/plaintiff for transportation from the
subject place to complete the project. He further contended that, when this
Court has prohibited, quarrying operations from the Paramiyam Depot in
Akkaraipalayam Village, and the Superintendenting Engineer, Public
Works Department, vide letter in JDO/71B/662M/06, dated 12.12.2006,
prohibited the quarrying, the appellant/plaintiff had to complete the
construction work and has procured the sand from different places. The
defendants had not disputed the transportation of sand from the different
quarries and this fact goes unchallenged by the defendants as per Ex.A18
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13. The learned Senior Counsel further drew our attention that, to
complete the construction work as contemplated under the Tender, the
plaintiff has transported the sand from different places and other
designated places, namely, Kulithalai and Musri which is evident from
Ex.P8. He further pointed out that, due to perennial flow of water at the
time of construction, there was some delay in completing the project as per
the scheduled time and the construction work was completed on all aspects
on 23.12.2008.
14. The learned Senior Counsel further pointed out that the Tender
was originally given to one M/s.P.S.Construction Limited and the said
contractor was not able to execute the work, and therefore, the previous
contract was terminated and fresh tender was invited, whereby the
appellant/Firm submitted their Tender, which was accepted and the work
entrusted to them with a revised estimated cost 27.31%, above the
estimated rate, because the cost of sand, Carted Earth, gravel and blue
metals have been escalated and time was taken for preparation of tender
schedule and awarding the contract.
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15. The learned Senior Counsel further contended that, based
upon Ex.A18 receipt of purchase of sand from Kulithalai and Musri sand
quarry in Cauvery River Bed, emphasis was laid as per Ex.P19
specification report, which would go to show that the plaintiff had
collected and transported the sand from Kulithalai and Musri to the
construction site and the same was also duly intimated by the plaintiff to
the defendants by way of their letter dated JDO/71B/662M/06, dated
12.12.2006. Exs.A14 and A15 would clearly go to show that the plaintiff
had informed the respondents about the additional/extra cost of
Rs.44,60,919/-.
16. The learned Senior Counsel would point out that the
appellant/plaintiff had submitted the details of materials which were
procured from Five Star quarry, as per Ex.A6, which will go to show that
the blue metal and other materials were procured from far off places. That
by itself would demonstrate that the plaintiff is entitled for additional
claim.
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17. Per contra, Mr.T.Chandrasekaran, learned Special Government
Pleader (Civil Side) appearing for the respondents/defendants categorically
denied receipt of the letter dated 13.06.2008. According to him, as per
Ex.A10 postal receipts are dated 26.06.2008 and 27.06.2008, but the seal
of the first respondent herein (Superintending Engineer, Nabard), is dated
25.06.2008 and it is hard to believe as to how they could send the letter
with Postal Department Seal, showing the dates as 26.06.2008 and
27.06.2008 and the postal receipts show the date as on 25.06.2008 and this
demonstrates that the plaintiff had not sent any notice as per Ex.A8, dated
13.06.2008. The respondents/defendants have also vehemently contended
that the relevant portion of the contract which reads as follows:-
“107-2. Source of materials.- All materails shall be
obtained from the sources designated in the contract. The
excavation of materials from sources designated in the
contract shall be under the direction of the Engineer at all
times insofar as selection of material or exact location of
excavation as involved.
If sources previously approved are found to be
unacceptable at any time and fail to produce the materials
satisfactory to the Engineer, the Contractor shall furnish
materials from other approved sources. The Contractor
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will not be reimbursed for any extense in developing the
new source, but allowance or deduction will be made as
the case may be, for the increase or decrease in cost due
to an increase or decrease in the length of haul.”
(emphasis supplied)
clearly mandates that the plaintiff is bound to take (i) Aggregates and
rough stone, (ii) Sand, (iii) Gravel and (iv) Carted Earth, all of which
have to be collected from the designated places.
18. The learned Special Government Pleader would submit that
the Ex.A6 statement issued by the Five Star Metals Private Limited,
Moochamkundu, Govindapuram, Palakkad, to Sri Ganesh & Co., Ledger
Account for the period from 01.10.2007 to 28.01.2008 totally a sum of
Rs.1,70,500/-, from 01.02.2008 to 29.02.2008 totally a sum of
Rs.1,18,900/- and another one commencing from 01.02.2008 to
29.03.2008 toally a sum of Rs.2,15,900/- regarding the purchase of gravel
and carted earth and rough stone and therefore, the total amount which has
aggregated to the tune of Rs.5,05,300/- cannot be taken into consideration.
19. We have considered the rival submissions of the parties.
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20. The Tender was awarded to the plaintiff and according to the
tender conditions, (i) Aggregates (ii) Sand (iii) Gravel (iv) Carted Earth
and rough stone, had to be collected from the Parambium Depot and other
designated places. However, this Court was pleased impose ban on
quarrying sand from the Parambium Depot and the Superintending
Engineer, Public Works Department, had notified the same, by his letter
No.JDO/71B/662M/06, dated 12.12.2006. While that being the situation,
Ex.A18 will demonstrate that the appellant/plaintiff was left with no other
option, but to draw the sand from Kulithalai and Musri to complete the
process and to justify the same, he has produced the bills vide Ex.A21
series which were not disputed by the defendants herein.
21. The next contention of the appellant is that, the blue metal
was procured from the Five Star Quarry at Palakkad as per Ex.A6. But
there is no evidence to show that Ex.A6 is the bill to establish that they
have purchased or procured the same for the purpose of construction under
the above tender.
22. As rightly pointed out by the learned Senior Counsel
appearing for the appellant/plaintiff the letters dated 07.04.2009 and
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March 2009 i.e., Exs.A14 and A15 would go to show that the appellant
herein have explained the escalation cost and additional cost that were
incurred to complete the construction. Similarly, making a demand to pay
the additional income as per Ex.A8 also strengthens the case of the
appellant. As discussed earlier, there are bills which would establish that
Ex.A18 is for transportation of sand from Kulithalai and Musri to the
construction site. Though it is the claim of the appellant that Ex.A21,
would establish the case of the appellant on the details for the procurement
of blue metal for the purpose of construction, we are unable to rely upon
the Ex.A21 as there is no reference that the material was procured for the
purpose of this construction. Though the respondents have denied the
receipt of notice issued by the plaintiff dated 07.08.2008, it is evident from
Ex.A16 viz., a letter from the second respondent to the plaintiff's counsel
pointing out that the appellant has not followed the Tender conditions and
also the appellant had not raised such claim for the additional cost and the
appellant/plaintiff had incurred and the same cannot be taken into account.
The appellant, as per Exs.A14 and A16, had narrated all these
circumstances which warranted procurement of materials from far off
places. Though the letter issued by the second respondent as per Ex.A16
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by way of Letter No. 707/2009/DO/dated 01.06.2009. It is only a denial
without any basis. Clause 107-2 of the contract provides for allowance for
increase or decrease in cost due to increase or decrease in the length of the
haul.
23. Therefore, we are not inclined to accept the contention as well
as the objections raised by the respondents for the simple reason that,
Ex.A18 would demonstrate that sand was quarried from different
locations, namely, Kulithalai and Musri. At the same time, we are of the
opinion that there are no ample materials to establish that (i) Aggregates
and rough stone, (ii) Gravel and (iii) Carted Earth, were transported from
other places apart from the designated sites.
24. It is clear that the respondents have miserably failed to make
note of the order passed by this Court imposing a ban on any quarrying
activities at Parambiyam Depot, which is also evident from the letter of the
Superintending Engineer, Public Works Department through his letter No.
JDO/71B/662M/06, dated 12.12.2006. Having accepted the Tender
conditions which has a time frame, the appellant/plaintiff has produced
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sufficient materials by way of Ex.A18, dated 31.06.2012 which would go
to show that sand was transported from Kulithalai and Musri Depots.
DW1 in his cross-examination has admitted that there was a ban imposed
by this Court as evidenced by the Letter in JDO/71B/662M/06, dated
12.12.2006 issued by the Superintending Engineer, Public Works
Department regarding quarrying in the Parambiyam Depot.
25. Therefore, we are inclined to allow this appeal partly to the
extent the claim of transportation of sand, to the tune of Rs.11,65,139/-.
26. Though it was pointed out by the learned Senior Counsel
appearing for the appellant that the appellant had procured blue metal from
Five Star Quarry by way of Ex.A6, that by itself will not indicate the blue
metal was procured for the purpose of construction under the tender in
question. We are unable to rely upon Ex.A6 and the claim cannot be
accepted.
27. Accordingly, this Appeal Suit is partly allowed. The judgment
and decree in O.S.No. 95 of 2010, dated 20.12.2013 on the file of the II
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Additional District Judge, Salem, are set aside. There will be a decree for
payment of a sum of Rs.11,65,139/- [Rupees Elevan Lakh Sixty Five
Thousand and One Hundred Thirty Nine Only] in favour of the
appellant/plaintiff-Firm together with interest at the rate of 9% per annum
from the date of institution of the suit till the date of decree and thereafter,
@6% per annum from the date of decree till the date of realization of the
entire amount. There shall be no order as to costs in this appeal suit.
[R.S.M., J] [N.S., J]
29.11.2023
Index:Yes/No
Speaking order: Yes/No
Neutral Citation: Yes/No
MSM
To
1. The II Additional District Judge,
Salem.
2. The Section Officer,
V.R. Section, High Court, Madras.
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R. SUBRAMANIAN, J
and
N. SENTHILKUMAR, J
MSM
Pre-Delivery Judgment in
Delivered on
29.11.2023
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