IN THE HIGH COURT OF CALCUTTA
F.A. No. 26 of 2012
Decided On: 20.02.2015
Appellants: Gopal Chandra Bhui
Vs.
Respondent: Bankura Zilla Parishad and Ors.
Vs.
Respondent: Bankura Zilla Parishad and Ors.
Hon'ble Judges/Coram:Indira Banerjee and Tapabrata Chakraborty, JJ.
Commercial - Extra work - Compensation for - Entitlement therefor - Section 70 of Indian Contract Act, 1872 - Present appeal filed for challenging order whereby, Appellant's suit for compensation for extra work done in project was dismissed - Whether Appellant was entitled for compensation for extra work done in project - Held, undisputed that Appellant had raised bill for work including extra work - Respondents had admitted that some extra work, over and above work under tender, was undertaken by Appellant as per verbal instruction of Respondents - Section 70 of Act categorically specifies that where person lawfully does anything for another person, not intending to do so gratuitously, and such other person enjoys benefit thereof, latter is bound to make compensation to former in respect of thing so done.
Citation;AIR 2015 Cal 124
Tapabrata Chakraborty, J.
1. This appeal has been preferred against the judgment and decree dated 14th May, 2010 passed by Smt. Shampa Dutt (Paul), Learned Civil Judge, (Senior Division) at Bankura in Money Suit No. 7 of 2004.
2. A brief review of the relevant facts would suffice. The appellant is an enlisted Class-I Contractor under Bankura Zilla Parishad. Pursuant to a Notice Inviting Tender No. 15 of 2001-2002 issued by the said Zilla Parishad, the appellant submitted a sealed tender and upon competing with the other participants, he emerged to be successful and he was accordingly issued work order on 22nd March, 2012 pertaining to the work of re-excavation of Keliapathar Barabundh at Mouza Keliapathar, Bhularkhap, J.L. Nos. 179, 149, Plot No. 221, 226, P.S. Indpur and Construction of Pucca Sech Nala from Barabundh to Irrigation land under augmenting of traditional Water Sources under 11th Finance Commission (hereinafter referred to as the tender work). As per direction contained in the work order the appellant executed an agreement and started the work. On 27th March, 2002, the site of the project work was inspected by the respondent No. 10 in presence of the respondent No. 9 and after measurement of the pre-work-level, the said respondents gave the "Lay Out" for re-excavation and at the said juncture it came to the notice of the said respondents that a very large heap of earth was existing with the pre-level section of the work and it was found that the work under the said project cannot be successfully done unless and until the said heap of earth is removed/excavated therefrom and accordingly the said respondents instructed the appellant to remove the said heap of earth and to lay the same upon the existing embankment of the Bundh and to carry the remaining quantum of excavated earth and to dump the same at a place to be arranged with the help of the villagers and the members of the Beneficiary Committee. Pursuant to such verbal instructions, the appellant undertook such extra work. Thereafter, on 21st August, 2002 the said respondent No. 10 proposed to draw up a work done estimate pertaining to the extra work and such proposal was approved by the respondent Nos. 8 and 4 on 31st August, 2002 and 10th September, 2002 respectively and accordingly the said respondent No. 10 prepared a work done estimate pertaining to the extra work and upon perusal of the same the respondent Nos. 8 and 2 observed that the said work done estimate may be approved. In spite of such approval, no disbursement was made. By a letter dated 20th June, 2003 the appellant submitted the final bill pertaining to the excess work done and left out in the first R.A. Bill. The said final bill was of an amount of Rs. 54,25,892/-. In reply thereto, the respondent No. 8 issued a letter to the appellant on 26th June, 2003 observing that the extra work executed by the appellant was beyond the terms of the agreement and that as such no payment can be made. Aggrieved thereby, the petitioner preferred a Money Suit after issuing a notice under Section 80 of the Code of Civil Procedure.
3. The Zilla Parishad contested the suit by filing a written statement stating inter that the suit suffers from non-impleadment of necessary party and that the monetary claim of the appellant is beyond the terms of the contract and in the backdrop of the undisputed fact that the appellant had done the extra work only on the basis of a verbal permission, the suit itself is not maintainable. According to the respondents there was no written order in support of the extra work allegedly done by the appellant. It was also averred that the construction of the Sech Nala was cancelled by the Zilla Parishad and that as such the appellant is not entitled to the amount as claimed. The work under the tender was also not completed by the appellant and as such no completion certificate was issued. Through the said written statement the respondents also lodged a counter claim towards forfeiture of the security deposit since the appellant had acted in violation of the agreement by not completing the work as per the said agreement.
4. Records reveal that in support of the averments made in the plaint, evidence was tendered by the appellant and on behalf of the respondents evidence was tendered by the respondent Nos. 7 and 8.
5. Upon contested hearing the learned Court below dismissed the suit and allowed the counter claim of the respondents by the judgment and decree dated 14th May, 2010.
6. Drawing the attention of this Court to Exhibit Nos. 28, 28/1 and 28/9, Mr. Saktinath Mukherjee, learned senior counsel appearing for the appellant submits that there can be no denial of the fact that without removal and lifting of a large heap of earth, existing with the pre-level section of the work, the tender work could not have been undertaken and executed by the appellant and upon realizing such hurdle, the respondent authorities themselves asked the appellant to remove and lift the said heap of earth. As such, there can be no dispute that the said work of removal of the heap of earth was an extra work inseverable from the work under the tender. Referring to the Exhibit Nos. 28, 28/1, 29, the Inspection Book at Exhibit Nos. 30 and 31 and the Exhibit Nos. 43 and 44, he submits that the appellant was asked by the authorities to execute the extra work and accordingly the appellant lifted the said heap of earth and a portion of the same was layered on the embankment and the remaining was dumped at the place indicated by the Beneficiary Committee. As regards such extra work, the respondent No. 10 was asked to prepare the work done estimate which was accordingly prepared by the said respondent No. 10 categorically stipulating the amount towards such work to be of Rs. 85,46,949.27/-, including additional contingency of 5% and the said work done estimate was also approved by the respondent No. 8 and the then Secretary of the Bankura Zilla Parishad.
7. According to Mr. Mukherjee, the actual claim of the appellant was of Rs. 54,25,852/- and the same was illegally withheld and as such the petitioner preferred the suit praying for disbursement of the said amount along with interest to the tune of Rs. 14,74,356/- being 18% per annum for the period from 12th September, 2002 to 15th March, 2004.
8. He further submits that the allegation to the effect that the appellant has acted in collusion with the Assistant Engineer being the respondent No. 9 herein is not sustainable inasmuch as a regular disciplinary proceeding was initiated against the said respondent No. 9 incorporating a charge that he had instructed the respondent No. 10 to do a huge quantity beyond the specification and the tender value, without any administrative approval and financial sanction but the said respondent No. 9 was not found guilty of the said charge. Such fact has been brought on record in the instant appeal through an application under Order 41 Rule 27 of the Code.
9. He further submits that the District Engineer himself had admitted in his cross-examination that additional work was done by the appellant and the work done estimate was prepared by the respondent No. 10. The said statements clearly establish that the appellant had executed the extra work and is accordingly entitled to the amount as calculated through the work done estimate.
10. He further argues that the said extra work was done non-gratuitously and that such work was accepted by the respondents and having availed the benefit of such additional work, the respondents are bound to reimburse the appellant and that the principle laid down under Section 70 of the Indian Contract Act is applicable to the facts of the instant case.
11. Drawing the attention of this Court to Clause 13 of the agreement, Mr. Mukherjee submits that in case of any instruction given by the District Engineer, the Contractor would be under an obligation to carry out such extra work at the rates mentioned in the estimate for such work and if there should be no estimate for any such work then at the rate mentioned in the District Engineers' schedule of rates and that such extra work shall not invalidate the contract but the time for completion of the work will be extended and that the certificate of the District Engineer shall be conclusive.
12. According to Mr. Mukherjee the District Engineer has certified the extra work and that such certification, as referred to in Clause 13 entitles the appellant to realize the money spent for the extra work done.
13. In support of such contention, Mr. Mukherjee places reliance upon the following judgments:
"1. Ranendra Nath Pal v. Commissioners of Dhuliyan Municipal Office, reported in MANU/WB/0067/1956 : AIR 1956 Cal. 203.
2. State of West Bengal v. B.K. Mondal and Sons, reported in MANU/SC/0114/1961 : AIR 1962 SC 779.
3. Food Corporation of India and Others v. Vikas Majdoor Kamdar Sahkari Mandli Limited, reported in MANU/SC/4367/2007 : (2007) 13 SCC 544."
14. Drawing the attention of the Court to the project report being Exhibit-25, Mr. Amal Baran Chatterjee, learned senior advocate appearing for the respondents submits that total estimate for the work specified in the said report was of an amount of Rs. 33,33,200/- but for implementation of the project only Rs. 24,01,866/- was allotted from the 11th Finance Commission Fund and that accordingly the said amount was available to Bankura Zilla Parishad for the work specified in Serial No. 1 of the said project report.
15. The primary contention of Mr. Chatterjee is that the alleged extra work was not a work under the contract/agreement executed and accordingly there was no obligation on the part of the respondents to disburse any amount exceeding the amount specified for the work under the tender.
16. He further submits that it is an admission on the part of the appellant that the alleged extra work was done by him only on the basis of a verbal instruction and in the backdrop of such admission the appellant is not entitled to any payment whatsoever exceeding the payment specified for the work under the tender. Drawing the attention of this Court to the tender notice and the work order, he submits that there is no mention of any extra work and that for having allegedly executed a work in addition to the work under the tender, the appellant cannot claim any amount.
17. According to him, the work done estimate in Exhibit-44 is an inflated and exorbitant one and the calculation made therein does not stand fortified through appropriate evidence. It is the case of the appellant that a large heap of earth was removed from the site concerned and a part of the same was layered on the embankment and the remaining was dumped at a place as indicated by the Beneficiary Committee but there is no evidence on record in support of the calculation of the dues stipulated in the final bill and in the work done estimate.
18. He further submits that on perusal of the terms and conditions of the tender it is clear that the total value of the work was of Rs. 24,01,866/-. Before submission of the application pursuant to the tender the appellant was under obligation to inspect the site and the conditions of the locale. Admittedly, in the present case appellant visited the work site and thereafter submitted his tender application agreeing to 26.62% less of the total value and agreed of all terms and conditions of the contract. As such, the extra work alleged to have been executed by the appellant is beyond the contract/agreement.
19. Placing reliance upon a judgment delivered in the case of Union of India v. Sita Ram Jaiswal, reported in MANU/SC/0058/1976 : AIR 1977 SC 326, he argues that the claim of the appellant does not come under the purview of Section 70 of the Indian Contract Act, 1872 inasmuch as the appellant has acted in collusion with the subordinate officers and any verbal instruction, even if given by the respondent No. 8, is not binding upon the Zilla Parishad. The fact that the appellant did not complete the entire work would be explicit from the non-issuance of the completion certificate by the Zilla Parishad.
20. Mr. Chatterjee further submits that the work under the tender was of an amount of Rs. 24,01,866/- and the amount claimed by the appellant for the alleged extra work is more than double of the amount for the work specified under the tender. Furthermore, the second part of the work relating to construction of Pucca Sech Nala was cancelled.
21. I have heard the learned advocates appearing for the respective parties and I have considered the materials on record.
22. The undisputed facts are that the Bankura Zilla Parishad invited tender from willing contractors by a notice dated 6th February, 2002 and the appellant submitted his tender quoting the rate at 26.62% below estimated cost of Rs. 33,33,200/- for the work towards re-excavation of Keliapathar Bara Bundh and of pucca Sech Nala. Upon emerging to be successful the appellant entered into a contract with the Bankura Zilla Parishad and the work order was issued by the competent authority on 22nd March, 2002 and in the midst thereof, the appellant deposited the security money and thereafter the appellant started the work under the tender and submitted the first R.A. Bill and on the basis of the same he was paid an amount of Rs. 5,47,204/-. Subsequent thereto, the appellant raised the second R/A final bill of an amount of Rs. 54,25,892/- including the extra work.
23. The appellant sought to establish his claim by placing reliance upon the following documents:
"a) Ext. 23 - Condition of Contract.
b) Ext. 25 - A Project Report.
c) Ext. 26 - Inspection Book.
d) Ext. 28 and 28/1 - Writing dated 27th March, 2002 at page No. 3 of Site Inspection Book.
e) Ext. 29 - Signature dated 27th March, 2002 in the Site Inspection Book belonging to the Assistant Engineer.
f) Ext. 30 - Writing pages 3 and 4 of the Site Inspection Book on 11th April, 2002.
g) Ext. 38 - Collective entry dated 2nd June, 2002 in the Log Book of Vehicle No. WB - 67/3145.
h) Ext. 40 - First page of Measurement Book.
i) Ext. 40/1 - Writings at pages 1 to 18 of the Measurement Book (Objected to).
j) Ext. 40/2 - Writing and signature of the District Engineer dated 4th July, 2002.
k) Ext. 41 - 3 pages containing in the calculation of pre-work-level of earthen embankment (Objected to).
l) Ext. 43 - First of the 2 pages of Note Sheet written by the Sub-Assistant Engineer on 21st August, 2002 (Objected to).
m) Ext. 43/1 - Some portion of page Nos. 1 and 2 of Ext. 43 bearing signature of Sub-Assistant Engineer (Objected to).
n) Exts. 43/2 to 43/12 - Signatures of the concerned Officers in the Note Sheets (Objected to).
o) Ext. 44 - Work done estimate prepared by the Sub-Assistant Engineer (Objected to)."
24. I have carefully perused the contents of Exhibits 28, 28/1 and 29 which reveal that certain alterations were made by the authorities in the original 'Lay Out' and the appellant was verbally asked to excavate and lift a very large heap of earth existing within the pre-level section of the work of the project since according to the respondents the project cannot be successfully completed without excavation and removal of the said heap of earth.
25. The contents of Exhibit Nos. 30, 31, 31/1, 32, 33, 34 and 34/1 reveal that the site was visited on repeated occasions by the respondent No. 10 and on every occasion it was remarked that the work was in progress. A perusal of the note sheet at Ext. 43 reveals that the respondent Nos. 6, 8 and 9 approved the proposal of the respondent No. 10 to draw up an work estimate pertaining to removal of earth, which was not a part of the work under the tender and upon such approval a work done estimate was prepared by the respondent No. 10 as would be explicit from Ext. 44.
26. The said Exhibits thus reveal that the respondents themselves have admitted that some extra work, over and above the work under the tender, was undertaken by the appellant as per the verbal instruction of the respondents. A perusal of the judgment impugned reveals that the factum of execution of some extra work by the appellant was not totally disbelieved by the learned Court below but as the said extra work was not undertaken by the appellant on the basis of any written instruction of the competent authority, the claim of the appellant was denied since the learned Court was of the opinion that on the basis of a mere verbal instruction, the appellant ought not to have undertaken any extra work and in support of such finding the learned Court did scrutinize the Clause 13 of the contract wherein it has, inter alia, been stated that any alteration in the original design, drawing or instruction during the progress of the work under the tender can be undertaken by the contractor only on the basis of a written instruction of the District Engineer. The said officer, in the midst of cross-examination, has categorically stated that the excavated earth was layered by the appellant as far as possible over the embankment which was near the watery portion of the Bundh as per its capacity and the remaining was stacked at a place fixed by the Beneficiary Committee.
27. Now, it needs to be considered as to whether, even assuming that some extra work was done by the appellant on the basis of verbal instruction of the respondents and that such extra work does not come within the work stipulated under the project, the rendition of such extra work entitles the appellants to avail any money pertaining to such extra work.
28. The principle of quantum meruit is based on an equitable doctrine which is supported by Section 70 of the Indian Contract Act and such principle is applicable to the facts of the instant case. The remedy by way of quantum meruit is restitutory in nature, i.e., it is a recompense for the value of the work done by the person concerned in order to restore him under the position which he would have been in, for the contract had never been entered into.
29. Section 70 of the Indian Contract Act categorically specifies that where a person lawfully does anything for another person, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of the thing so done.
30. Furthermore, the said extra work which has been done by the appellant cannot, by the furthest of imagination, be construed to be gratuitous in nature since the Exhibits reveal that the respondent themselves decided to draw up a work done estimate pertaining to such extra work. According to the respondents, the work under the tender could not have been proceeded with prior to removal of the heap of earth and as such excavation of earth was completed by the appellant, as recorded by the respondent No. 8 in Ext. 45, it can be safely concluded that the respondents did enjoy the benefit of completion of such extra work. In the case of Food Corporation of India and Others (Supra) it has been inter alia observed as follows:
"If a party to a contract has done additional construction for another not intending to do it gratuitously and such other has obtained benefit, the former is entitled to compensation for the additional work not covered by the contract. If an oral agreement is pleaded, which is not proved, he will be entitled to compensation under Section 70. Payment under this section can also be claimed for work done beyond the terms of the contract, when the benefit of the work has been availed of by the defendant".
31. Considering the totality of the circumstances it can be safely implied that the extra work was done by the appellant as per the instruction of the respondents and in terms of the provisions of Section 70 of the Indian Contract Act, the petitioner is entitled to the amount actually spent for the extra work and that as such the learned Court below committed substantial error of law in dismissing the suit.
32. Now the question which arises to be determined is as to whether the appellant is entitled to the amount of Rs. 54,25,892/- as prayed for and as reflected in the work done estimate prepared by the respondent No. 10 in Ext. 44.
33. The learned Court below has dismissed the suit on the ground that the extra work allegedly done by the appellant does not come within the purview of the contract and that by conducting a work on verbal assurance, the appellant cannot claim the amount as prayed for. Thus, the learned Court below had no occasion to consider any issue as regards the quantum payable to the appellant for having conducted the extra work.
34. A perusal of the said Ext. 44 reveals that the same is nothing but a replica of the estimate prepared by the appellant for raising the final bill. There is no evidence on record as regards the exact quantum of earth removed by the appellant from the site and the distance covered by the appellant for dumping the earth, as excavated and removed. No member of the Beneficiary Committee, upon whose instruction the earth was dumped, has been examined. There is also no evidence on record as to whether the District Engineer's schedule of rates, as referred to in Clause 13 of the Contract is applicable to the work undertaken by the appellant on the basis of verbal instruction.
35. In respect of the work done estimate prepared by the respondent No. 10, the respondent Nos. 2 and 8 has observed that such estimate may be approved but there is no material to establish that the Zilla Parishad did adopt any resolution towards disbursement of the amount specified in the said work done estimate. The said work done estimate is nothing but a replica of the final bill raised by the appellant. In the suit no issue has been framed as to whether the final bill of the appellant and the work done estimate prepared by the respondent No. 10 is acceptable. Thus, there has been an omission on the part of the learned Court below to frame and try a just issue and to determine the question of fact as to whether the quantum of earth removed by the appellant by way of an extra work and as to whether the rate applied for preparation of the work done estimate is acceptable. In the absence of appropriate evidence on record, it is not possible for this Court to determine the cost actually incurred and the amount to which the appellant is entitled for the extra work done by him.
36. Records reveal that Ext. 44, being the work done estimate was objected to by the respondents. The said work done estimate was prepared by the Sub-Assistant Engineer and the same does not stand corroborated by the author of the said document. The appellant in the midst of cross-examination has categorically stated that the sanctioned value of the work was of an amount of Rs. 24,01,866/- and the tender was submitted by him with a less amount of 26.62% and that the Zilla Parishad subsequently cancelled the work of construction of such Sech Nala and that the bill for the entire work is subject to verification and confirmation by the concerned department. The appellant has also deposed that he did not make any written prayer to the Bankura Zilla Parishad requesting them to take measurement of the work and that it is not known to him as to whether the District Engineer did direct the Sub-Assistant Engineer to prepare the work done estimate pertaining to the extra work and that there is no letter of the District Engineer directing any of his subordinates in writing to measure the actual quantum of amount spent by the petitioner for the extra work.
37. This Court cannot take upon itself an investigative mantle to ascertain the quantum of extra work done by the appellant entitling him to the amount as prayed for. In order to come to a definite conclusion as regards such entitlement and as to whether the said amount of Rs. 54,25,892/- has been rightly calculated, the matter needs to be remanded to the learned Court below for determination of the issue as to whether the work done estimate prepared by the respondent No. 10 is sustainable.
38. There can be no doubt that for the purpose of having material points in controversy decided and to bring finality in the litigation the quantification of the claim pertaining to the extra work is required to be decided. The entire work under the tender was of an amount of Rs. 24,01,866/- and the amount claimed towards the extra work is almost double of the amount sanctioned for the work under the tender and that as such the quantification is exorbitant. It is the appellant's own case that the excavated earth was decided to be lifted and carried over the site and to be spread over the embankment of the Bundh and to carry the remaining quantum of excavated earth to a place for dumping/stacking as the plaintiff would be able to arrange with the help of the villagers and the members of the Beneficiary Committee but the appellant has not been able to establish the quantum of earth extracted and the distance covered for the alleged dumping/stacking of earth, though the said figures are absolutely essential for ascertainment of the quantum of costs. To establish the amount spent, no evidence has been adduced and as such the quantification of the said amount cannot be left to this Court and it is also impossible for this Court to decide the same and evidence is required to clarify such issue which is still obscure.
39. This Court cannot come to any conclusion as regards the actual amount payable to the appellant for the extra work, in the absence of appropriate evidence on record, moreso when public money is involved, the appropriate standards of probity and accountability is required to be on record.
40. For the reasons discussed above this Court holds that the appellant is entitled to be compensated for the extra work done and that accordingly the judgment and decree dated 14th May, 2010 passed by the learned Court below are set aside and the suit is remanded back to the learned Court below for determining the amount payable to the appellant for the extra work done upon granting liberty to the parties to adduce evidence.
41. With the above observations and directions, the appeal is disposed of.
42. There shall, however, be no order as to costs.
43. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
Indira Banerjee, J.
44. I agree.
No comments:
Post a Comment