M/S. B.K. BUILDERS, vs THE GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION,
- Court
- Gujarat High Court
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
Reserved On : 11/06/2026
Pronounced On : 03/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3856 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
=====================================================
Approved for Reporting Yes No
No
=====================================================
M/S. B.K. BUILDERS,
Versus
THE GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION,
=====================================================
Appearance:
MR GT DAYANI(271) for the Appellant(s) No. 1
MR CHINMAY M GANDHI(3979) for the Defendant(s) No. 1
=====================================================
CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. By IA order dated 06.04.2025, the matter was fixed
for final hearing, but the order-sheet does not reflect the order of
admission. Hence, this appeal is admitted . Learned advocate
Mr. Chinmay Gandhi waives the service of notice of admission.
2. With request of both the sides, the matter is taken up
for final hearing and decided by the following judgment.
Page 1 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
3. The Civil Suit being Civil Suit No.3722 of 1988 had
been filed by the appellant – M/s. B.K. Builders, a registered
partnership firm, against the Gujarat Industrial Development
Corporation (GIDC, for short) for recovery of Rs.8,59,583/- with
yearly interest at the rate of 18% per annum from the date of the
suit till realization, on the averment that the plaintiff is a
registered partnership firm, whereby the defendant is a statutory
corporation, having its office at Ahmedabad. According to the
plaintiff, defendant invited tender for construction of 10L and
5C1 types sheds at GIDC estate, Naroda.
3.1 The tender submitted by the plaintiff, since was the
lowest one, it was accepted by the GIDC and pursuant to which,
agreement No. B-164/81-82 was executed on 28.01.1982 in
favor of the plaintiff.
3.2 Construction of 10L and 5C1 types sheds were
required to be completed within 12 months from date of the work
order, i.e., on or before 27.01.1983. It was a bilateral reciprocal
contractual obligation between the parties, whereby according to
plaintiff, the GIDC failed to perform reciprocal obligation,
inasmuch as, GIDC did not supply requisite quantity of cement,
as provided in Schedule-A of the tender and did not give the
possession of the entire site along with the work order.
3.3 The plaintiff pleaded that, as a result of which, the
work could not be completed within the stipulated period. Upon
request of the plaintiff, the time to complete the work extended
up to 31.05.1983 without imposing a penalty.
Page 2 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
3.4 It is in this background of the facts, plaintiff came
out with the case that time was not the essence of the contract;
the Executive Engineer, who was required to give item-wise
program as per clause (2) of the agreement, since failed to give
the item-wise program and further, GIDC did not make regular
payment for the work done by the plaintiff, the plaintiff did not
complete the work. However, the GIDC did not pay the amount
towards the work done by the plaintiff – company. Mainly based
upon the aforesaid averment, the plaintiff break-up its claim as
under:-
i) Rs.42,652/- towards the recovery of security deposit.
ii) Rs.1,36,931/- towards the fourth running bill, which was
prepared but not paid.
iii) Rs.65,000/- as compensation on account of wrongful
termination of the contract.
iv) Rs.1,75,000/- towards dismantling, removing,
transporting, and carting the material.
v) Rs. 2,40,000/- on account of overstay of establishment
charge.
vi) Rs. 2,00,000/- on account of work done but not measured
and paid.
In total, recovery of Rs. 8,59,583/- has been sought
with interest.
Page 3 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
3.5 To claim the aforesaid relief, Civil Suit No.3722 of
1988 was filed before the Civil Court, Ahmedabad. The GIDC,
having been served, filed written statement Exhibit-34, denying
all allegations levelled in the plaint and contested the suit inter
alia on the contention that the suit is barred by law of limitation;
that the extension was given to the plaintiff with a view to enable
him to complete the work, though the time was the essence of
the contract; that the plaintiff was required to prepare the item-
wise program; that the defendant had already made payment of
three running bills in tune of Rs.4,49,907/- and the fourth
running bill was not paid on the ground that first floor slab of 5
units collapsed, as a result of which two children died and
several others were injured and the criminal complaint was filed.
Yet, the plaintiff did not bother to remove the debris to complete
the work.
3.6 Mainly on above contentions, it was pleaded that
since plaintiff was failed to perform his part of the contract, he
was not entitled to refund of the security deposit and since
plaintiff has abandoned the work and had committed breach of
terms and conditions of the contract, he is not entitled to any
relief and the work which, even before commencement has been
collapsed due to lack of quality, which has effect of deficiency in
action, having a fundamental breach of contract committed by
the plaintiff. Mainly upon aforesaid pleading, it was urged to
dismiss plaintiff’s suit.
3.7 The learned City Civil Court, after framing the issues,
permitted both the parties to lead their evidence and examined
the merits of the case on touchstone of the issues framed by it.
Page 4 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
On background of evidence led by either of the parties, the Court
No.5, City Civil Court was pleased to dismiss the suit by
judgment and decree dated 25.01.2007.
3.8 Being aggrieved, plaintiff has filed this appeal on the
grounds mentioned in the appeal memo.
4. Mr. G.T. Dayani, learned advocate appearing for the
appellant, having referred to the impugned judgment alongside
the evidence on record, mainly submitted that the learned City
Civil Court committed a gross error in dismissing the suit. The
impugned judgment is wrong, illegal, arbitrary and against the
settled principle of law.
4.1 He further argued that the learned City Civil Court
has failed to appreciate the oral as well as documentary evidence
and reached to the wrong conclusion.
4.2 Further, it is argued that the learned City Civil Court
has failed to appreciate that the GIDC has not provided the
requisite quantity and quality of the cement as per the terms
and conditions of the tender, which has bearing effect upon
collapse of the slab. The learned City Civil Court, even by a
whisper of thought, did not appreciate this aspect.
4.3 He has further argued that the documentary evidence
produced at Exhibit-20, 108, 126 are totally misread and
without their true appreciation, the learned City Civil Court has
committed serious error in dismissing the suit.
Page 5 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
4.4 That the learned City Civil Court has misread the
report produced at Exhibit-118, report by Mr. Jharundwala,
Superintending Engineer, Design Circle Gandhinagar, which
suggests that because of the poor quality of Pozzolana cement
used in brick masonry, resulted in failure of the centering work
and that was the proximate cause of collapse and not the
negligence or inaction of the plaintiff.
4.5 That the learned trial Judge has totally ignored the
expert report, which indicates that the Portland Pozzolana
th
cement supplied by the GIDC developed 1/4 strength, which
made the brick masonry a weak piece of construction, and it
could not withstand against the horizontal force.
4.6 That the learned City Civil Court misconstrued the
report at Exhibit-109. It is sought to be submitted that plaintiff
was ready and willing to carry out remaining work even after
collapse as to show his bonafide . However, the learned trial
Court differently dealt with this evidence and had committed
serious mistake in reading and appreciating the evidence.
4.7 The failure of the cement to meet the comprehensive
test and fineness test, attributed no fault on the part of the
plaintiff, yet this issue and report has not been appreciated.
4.8 Overall, it is submitted by learned advocate
appearing for the appellant that the learned City Civil Court has
committed serious error in appreciating the evidence and the
appeal, therefore, deserves consideration and is required to be
allowed.
Page 6 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
4.9 Upon above submission, learned advocate Mr. G.T.
Dayani submits to allow this appeal and to quash and set aside
the impugned judgment and to grant the decree as prayed by the
plaintiff.
5. Per contra , learned advocate Mr. Chinmay Gandhi
appearing for the GIDC refers to the judgment of this Court in
the case of Jayantilal Hargovandas Thakkar v. Gram
Panchayat, Ratangadh , reported in 2026 (0) GUJHC 24196
as well as in case of Gujarat Water Supply & Sewage Board
& Anr. v. Evergreen Trading & Construction Company, First
Appeal No.4979 of 2001 to submit that the plaintiff though
claimed to be a registered partnership firm, did not follow
procedure laid down in Order XXX of the Code of Civil
Procedure, 1908 to file suit at least through one of the partners.
5.1 It is further submitted that M/s. B.K. Builders even if
proved to be a registered partnership firm having non-existence
of legal entity, cannot file the Civil Suit in a Civil Court. This is a
basic defect in filing of the suit and goes to the root of the case,
which does not permit this Court to go into the merits of the case
and decide the same again.
5.2 As far as the merit of the case is concerned, learned
advocate Mr. Chinmay Gandhi refers to the tender conditions
and agreement executed between the parties and further
unquestioned incident that the construction carried out by the
plaintiff was collapsed, causing the death of two minor children
and injury to several, submitted that the plaintiff, who carried
Page 7 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
the work carelessly without quality, is not entitled to any of the
claim made by him, including the refund of the security deposit.
5.3 Supporting the judgment of the learned trial Court,
learned advocate Mr. Chinmay Gandhi would submit that it's a
contract, and where ordinarily, time is essence of the contract,
and the time limit stated therein should be treated as a time to
complete the contract. Merely extending the time to complete the
contract by few months, without imposing penalty, will not alter
the nature of the contract. Therefore, he submitted that the
learned trial Court has rightly believed that the time is essence
of a contract. Therefore, no interference is required.
5.4 He has further stated that the learned City Civil
Court in a comprehensive judgment dealt with every piece of
evidence, be it oral or documentary, and believed that the
plaintiff obviously failed to prove his case.
5.5 He would further submit that the sample sent for the
expert opinion is of lime pozzolana mixture and not of the
pozzolana cement itself. When lime is mixed with the pozzolana
cement, the strength of the cement would weaken, and therefore,
expert opinion, which came on the sample of lime pozzolana
mixture, would not be helpful to the plaintiff for shifting the
burden from the plaintiff to the defendant for collapse of the
structure. It is thoroughly discussed by the learned City Civil
Court in its impugned judgment and order.
5.6 Mainly upon this submission, it was submitted to
dismiss the appeal and to confirm the judgment and decree
passed by the learned City Civil Court.
Page 8 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
6. The following issues were framed by the learned City
Civil Court at Exhibit-33:-
“1. whether the plaintiff proves that the plaintiff is entitled to
recovoer a sum of Rs.8,59,583/- from the defendant by way
of damages as claimed in the plaint ?
2. whether the plaintiff is entitled to claim 18 % interest over
the suit claim from the date of the suit till realisation.
3. whether the suit is barred by law of limitation and
provisions of law of Gujarat Industrial Development
Corporation Act ?]
4. whether the defendant proves that the time is
(handwritten correction: was) essence of contract ?
5. whether the defendant committed the breach of contract ?
6. whether the defendant proves that the penalty imposed
by the defendant is legal and valid according to law ?
7. what order and decree ?”
7. Except issue Nos.4 and 6, all other issues were
framed are answered in the negative. Issue Nos.4 and 6 are
answered in affirmative and as per final order, the suit was
dismissed.
8. After deciding that the time is the essence of the
contract, the learned City Civil Court discussed the real dispute
involved in the matter in the judgment from para 16 to 20 of the
impugned judgment, which are extracted as under:-
“16. The real bone of contention raised by the ld. advocate
for the plaintiff in this suit is that the plaintiff had performed
Page 9 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
his part of contract and was willing to complete the
construction work as per the agreement after the collapse of
the sheds, but the defendant did not make the payment of
4th R A bill, and therefore, the plaintiff did not resume the
work. According to the plaintiff, the defendant had
committed breach of the contract by not respecting the
reciprocal obligations and on the contary imposed penalty on
the plaintiff and terminated the agreement. Now, there are
certain admitted facts in this case, such as, admittedly the
time limit set out for completion of the work was 12 months
from the date of issue of work order ; that there were certain
reciprocal obligations to be fulfilled by the defendant like
supplying cement; that the work was to be executed as per
the drawings and specifications given by the defendant and
was to be carried out under the supervision of the officers of
the defendant ; that payments of three R A bills were
already made by the defendant and the 4th R A Bill was
pending with the defendant; that in the meantime, on
26.4.83, the collapse of ground floor and first floor slabs of 5
units of 10 L type sheds took place in which two persons
died and several got injured; that thereafter, number of
correspondence took place between the plaintiff and
defendant and ultimately, since the plaintiff did not resume
the work the defendant imposing the penalty, terminated the
contract vide letter dated 26.7.85 exh.46.
17. At this juncture, it is necessary to refer to some of the
clauses of the tender document exh.96 and tender
agreement exh.97. As per Schedule - A contained in the
tender document, the cement was to be supplied by the
defendant and the price of the cement was to be charged
from the contractor. As per the additional general
specification no. 20 of the said tender document, all the
work in general was to be carried out as per the
specifications given in PWD Hand Book unless otherwise
specified by the Executive Engineer. As per clause (1) of the
terms and conditions of the contract contained in document
exh.97, the contractor was required to pay the security
deposit which was liable to be refunded to the contractor
after the expiry of 3 months from the date on which the final
bill was paid or after the expiry of the date upto which the
contractor had agreed to maintain the work in good order
whichever was later. As per clause (2) of the said
Page 10 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
agreement, the contractor had to carry out the work with all
due diligence throughout the stipulated period and was
liable to pay compensation for the delayed or unfinished
work. Clause (3) of the said agreement empowered the
defendant corporation to rescind the contract and forfeit the
security deposit of the contractor in case of abandonement of
the work by the contractor. Clause (4) of the said agreement
also empowered the Executive Engineer to take action
against the contractor if the general progress of the work
was found unsatisfactory. Clause (6) of the said agreement
deals with the extension of time limit if the work was not
completed by the contractor on the ground of having been
unavoidably hindred or on any other ground. Clause (10)
deals with the submission of bills and clause (13) deals with
the supervision for execution of the work in accordance with
the specification and drawings given by the Engineer-in-
charge . As per clause (17) of the said agreement the
Engineer in charge could take action if the work was found
imperfect or with unskillfull workmanship.
18. Having regard to the above mentioned terms of the
contract and the documentary as well as oral evidence on
record, let us examine as to whether the defendant was
justified in terminating the contract and imposing penalty ?
and whether the plaintiff is entitled to the claims as prayed
for in the suit ? It appears that after the collapse of the
sheds on 26.4.83, a preliminary report was submitted by
the Executive Engineer, Shri. D M Shah, which is produced
at exh.108. It has been stated in the said report inter alia
that the ground floor slabs of 10 units and first floor slabs of
5 units had collapsed while casting of slabs for 6 to 10 units
was in progress ; that three children were removed from the
debris and many others were injured ; that cement register
which was with the Work-Charge -Carkoon was burried
with the collapsed structure and therefore, not available ;
that the cause of collapse was not known ; that three R A
Bills were paid to the contractor and 4th R A Bill was
prepared and received but not paid. He has mentioned
about the names of Officers in charge of the work. It further
appears that thereafter an independent inquiry was set up
by the board of the defendant corporation and Mr. M A
Jalundhwala, Superintending Engineer, Design Circle,
Gandhinagar, was entrusted with the said inquiry. His
Page 11 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
report is produced at exh.109. In the said report in para 7,
he has mentioned about the probable causes of collapse and
s tated that the proximate causes of collapse appear to be
failure of centering coupled with the use of poor quality of
Pozolona cement in brick masonary. In the said report he
has discussed in detail about the analysis of data furnished
by the GIDC and analysis of the test results. In para 5.0
with regard to centering work he has observed that the
specifications were not followed so far as centering was
concerned and in para 6.0 as regards Pozolona cement he
has observed that as per the report received from the
Research Officer, North Gujarat Research Division, the
cement sample failed in comprehensive strength test and
fineness test. At this juncture, it is required to be mentioned
that the said report of Gujarat Engineering Research
Institute along with other correspondence has been
produced by the witness Shri. N A Vyas, along with the list
exh.66. It is true that in the statement showing test result of
the cement received from the defendant, it is mentioned that
the sample failed in comprehensive strength test and
fineness test. However, Mr. J F Mehta, ld. advocate for the
defendant had pointed out during the course of arguments
that the sample sent by the defendant was of lime Pozolona
mixture which was different from Pozolona cement and the
said sample was also not collected from the site of sheds
which was to be constructed by the plaintiff but has been
collected from the site of the sheds to be constructed by
another contractor. There is some substance in the said
submission of Mr. Mehta inasmuch as in the letter dated
30.7.83, of Assistant Research Officer, addressed to the
Deputy Engineer of the defendant Corporation, it has been
stated that the sample received from the defendant
corporation for testing was not of Pozolona cement but was
Lime Pozolona mixture, and that the tests for Pozolona
cement and Lime Pozolona mixture were different. The copy
of the said letter is on record at exh.95. The witness
Ashvinkumar Harilal Patel, who happened to be the Senior
Scientific Assistant in Gujarat Engineering Research
Institute, Gandhinagar, examined at exh.91, has also
confirmed about the contents of the said letter exh.95. The
submission of Mr. Mehta, also gets support from the report of
Mr. Jalundhawala exh.109, as regards analysis of test
report of Pozolona cement. Under the circumstances, there is
Page 12 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
no clear evidence on the finding of said Mr. Jalundhawala
that the Pozolona cement supplied by the defendant to the
plaintiff for the construction of tender work was of poor
quality. The only probable cause of collapse, therefore,
appears to be failure of proper centering work, inasmuch as
it has been offered by him that the specifications were not
followed so far as centering was concerned. It is true that
the work was required to be carried out by the plaintiff as
per the drawings and specifications and under the
supervisions of the officers of the defendant corporation and
there appears to be gross negligence and carelessness on
their part in not supervising the work more particularly, the
centering work. Some departmental inquiries also appear to
have been conducted against the Junior Engineer Shri. K R
Dave and Deputy Executive Engineer, Shri. J J Gariwala.
The reports of which are produced at exhs.105 and 106.
However, thereafter no concrete action appears to have been
taken in the matter for such a serious lapse on the part of
the officers of the defendant. It also appears that a criminal
complaint was also filed against the partners of the plaintiff
and the said officers of the defendant corporation in respect
of which criminal case no. 75 / 84 was registered in the
court of Judicial Magistrate First Class, Narol. However, all
have been acquitted by giving benefit of doubt vide order
dated 11th December, 1985. The copy of the judgment is on
record at exh.47. Thus, it appears that as such no liability or
responsibility of either the partners of the plaintiff or the
officers of the corporation was fixed at any point of time,
despite such a serious and unfortunate incident had taken
place where two persons had died and 21 persons were
injured.
19. After the said collapse on 26.4.1983, it appears that the
defendant corporation vide letter dated 10.8.83 had called
upon the plaintiff to resume the work under clause (17) of
the contract. The said letter is at exh.124. Thereafter, again
vide letter dated 17.8.1983 exh.119, the defendant had
requested the plaintiff to start the work immediately. Other
correspondence have also been produced by the defendant
at exhs. 120 to 123 from which it appears that the
defendant had requested the plaintiff to remove the debris
and start the remaining work . As against this
correspondence, the plaintiff has also produced number of
Page 13 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
letters at exhs. 36 to 43 requesting the defendant to release
the payment of 4th R A Bill and showing its inability to
resume the work till the outstanding amount was paid to the
plaintiff. It further appears from the letter exh.77 that the
plaintiff had ultimately removed the debris and was
requested to start the construction of 10 L type sheds from
the coping level. From the letter dated 25.7.84, exh.40, it
also appears that the plainitff had given undertaking to
complete the remaining work as per the tender conditions,
on the defendant agreeing to pay price escalation for
cement, steel and A C sheets to the limit morethan 10 % of
the estimated costs. However, thereafter, no progress was
done and the plaintiff did not resume the work and
completed the remaining part of construction. Ultimately, the
defendant vide letter dated 26.7.1985 exh.46, invoking
clause (2) of the agreement terminated the contract. In the
said letter it was mentioned that the work executed by the
plainitff was not in accordance with clause (2) and hence,
compensation at the rate of 75 per day w.e.f 1.1.84 upto the
amount of security deposit available with the department
shall be imposed. The plaintiff was also called upon to pay
the remaining amount of compensation as detailed in the
said letter. In view of the correspondence, that ensued
between the parties and in view of the terms and conditions
of the agreement, it clearly transpires that after the collapse
of sheds the defendant had repeatedly called upon the
plaintiff to resume the work and complete the remaining part
of construction which the plaintiff had failed to carry out. As
discussed hereinabove, the defendant was empowered
under the terms of the agreement to claim compensation
under clause (2) if the work was not completed within the
stipulated time limit and to rescind the contract and forfeit
the security deposit, if the contractor i.e. the plaintiff
abandoned the work under clause (3) of the said agreement.
Since it has been found that the entire structure callapsed
because of faulty centering work and since there is no
cogent evidence to show that the pozolona cement supplied
by the defendant was of inferior quality, it is required to be
held that the plaintiff did not carry out the work as per the
specifications and upto the satisfaction of the defendant
which resulted into the collapse of the structure. As such this
is a case of res ipsa loquitor, where the event of collapse of
entire structure has established the bad workmanship and
Page 14 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
unsatisfactory work on the part of the plaintiff. After the
collapse also the plaintiff did not complete the construction
work and abandoned the work despite several letters by the
defendant. The plaintiff has also not been able to show as to
how the defendant had committed breach of contract. Under
the circumstances, it is required to be held that defendant
was justified in invoking the terms of the contract, forfeiting
the security deposit, adjust the amount of compensation
from the security deposit and terminate the contract of the
plaintiff. In that view of the matter it is held that the plaintiff
is not entitled to the refund of security deposit as claimed by
it and also the amount claimed under the head of wrongful
termination of the contract.
20. As regards other claims under the head of work done
and not paid, on account of dismentalling, removing,
transporting the materials, on account of over stay of
establishment charges and on account of work done not
measured and not paid, the plaintiff has not adduced any
oral or documentary evidence to support these claims. These
claims have only been pleaded in the plaint but not been
substantiated by any evidence muchless cogent evidence. It
is trite that pleading is not the proof and the plaintiff is
obliged to prove each and every claim by leading cogent
evidence, which the plaintiff has miserably failed to do so in
the instant case. In that view of the matter, it is required to
be held that the plaintiff is not entitled to the claims made in
the suit. The issues nos. 1, 2, 3, and 5 are therefore,
answered in the negative and issues nos. 4 and 6 are
answered in the affirmative.”
9. On re-appreciation of evidence, what appears that the
facts like construction of 10L and 5C1 types sheds at GIDC
estate, Naroda; tender invited by the GIDC; plaintiff submitted
the lowest tender; acceptance of plaintiff's tender; issuance of
the work order; issuance of agreement; and work to be
completed within one year from 28.01.1982, and the constructed
portion was collapsed even before handing over to the GIDC on
Page 15 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
26.4.1982, resulting into the death of two persons and injury to
several persons, are wholly undisputed facts.
10. The facts also remain that the GIDC repeatedly wrote
letters to the plaintiff to complete the work, and it went to deaf
ears. No work was resumed and not carried out. Plaintiff to show
crocodile tears, subsequently showed his readiness and
willingness to complete the work, which was the remaining work,
and not the construction work, which was collapsed.
11. The learned City Civil Court deal with the deposition
of the expert witness and found that the sample sent for
examination is mixture of lime and pozzolana cement and not
the pozzolana cement itself, which is to be used for the purpose
of construction. There is a conspicuous difference between the
strength of lime mixed pozzolana cement and pozzolana cement
itself. The plaintiff has used the lime pozzolana mixtures to carry
the construction, and not the pozzolana cement. The learned
City Civil Court dealt with this issue, and according to this
Court, it was correctly dealt with.
12. It is also noticeable that the cement register, which
was maintained with the work-charge-carkoon, indicating how
much cement was supplied to the plaintiff, was buried into the
collapsed structure, and therefore it was not available. Thus, it
becomes a significant aspect that the plaintiff claims that GIDC
was not supplying sufficient quantity of the cement, and further
signifies that the structure, which has been constructed by the
plaintiff, was collapsed. A lot more can be said on the sequence
of incident, which typically appears in this Government work.
Page 16 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
Plaintiff, who failed to provide a good structure or stable
structure as required under the agreement, and the structure
which he constructed collapsed and took the lives of two persons
and yet, he, without any shame, came for recovering the amount
of the construction.
13. It is also noticeable that the three running bills were
paid to the plaintiff for constructing such fractured construction
and he is asking for recovery of the fourth running bill.
14. In Exhibit-109, an inquiry report prepared by Mr.
Jharundwala, Superintending Engineer, the probable cause of
collapse stated that the proximate cause of collapse appear to be
a failure of centering coupled with the use of poor quality of
pozzolana cement in brick masonry.
15. In para 5 thereof, it has been observed that the
specification of centering work were not truly followed. As far as
the sample of cement lime mixture is submitted, he has stated in
para 6 thereof that, as per report received from the Research
Officer, North Gujarat Research Division, the cement sample
failed in comprehensive strength test and fineness test.
16. The report with the list of Exhibit-66, tendered by
witness Mr. N.A.Vyas, carried out by the GERI, indicates that the
sample failed to true comprehensive strength test and fineness
test. The sample was drawn from mixture of lime pozzolana and
not from the pozzolana cement, which is indicative of the fact
that the plaintiff, without following the regulation and the
condition of the tender, carried out the construction.
Page 17 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
17. According to this Court, the learned City Civil Court
has thoroughly and exhaustively dealt with the issues raised
before it.
18. Learned advocate Mr. G.T. Dayani failed to bring that
the learned City Civil Court has left out any issue or evidence.
Therefore, in the aforesaid circumstances, this Court found no
reason to interfere with the impugned judgment and decree.
19. It is equally established that the suit filed by the
partnership firm, without including the partner as a plaintiff, is
not maintainable, as held by this Court in the aforesaid two
judgments.
20. Since this Court is concurring with the views and
finding taken up by the learned City Civil Court, it is not
required to rewrite the reasons to confirm the judgment and
decree.
21. In Laliteshwar Prasad Singh v. S.P.Srivastava (D) ,
reported in 2017 (2) SCC 415 , the Supreme Court held that
when appellate Court agrees with the view of the trial Court on
evidence, it need not to restate the facts or evidence or reiterate
the reasons given by trial Court; the expression of general
agreement with reason given by the trial Court would ordinarily
suffice. It is further held by the Supreme Court that, merely not
framing the separate points of determination of law would not
render the appellate Court’s judgment against the settled
principle of law, provided that the judgment covers all important
questions involved in the case and it should not be general and
Page 18 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
vague. Para 12 and 13 thereof reads as under:-
“12. An appellate court is the final court of facts. The
judgment of the appellate court must therefore reflect court's
application of mind and record its findings supported by
reasons. The law relating to powers and duties of the first
appellate court is well fortified by the legal provisions and
judicial pronouncements. Considering the nature and scope
of duty of first appellate court, in Vinod Kumar v.
Gangadhar, 2015(1) R.C.R.(Civil) 598 : 2015(1) Recent Apex
Judgments (R.A.J.) 285 : (2015) 1 SCC 391, it was held as
under:-
"12. In Santosh Hazari v. Purushottam Tiwari, 2001(3)
R.C.R.(Civil) 243 : (2001) 3 SCC 179, this Court held as
under: (SCC pp. 188-89, para 15)
"15. ... The appellate court has jurisdiction to reverse or
affirm the findings of the trial court. First appeal is a
valuable right of the parties and unless restricted by law,
the whole case is therein open for rehearing both on
questions of fact and law. The judgment of the appellate
court must, therefore, reflect its conscious application of
mind and record findings supported by reasons, on all
the issues arising along with the contentions put forth,
and pressed by the parties for decision of the appellate
court. ... while reversing a finding of fact the appellate
court must come into close quarters with the reasoning
assigned by the trial court and then assign its own
reasons for arriving at a different finding. This would
satisfy the court hearing a further appeal that the first
appellate court had discharged the duty expected of it."
The above view has been followed by a three-Judge
Bench decision of this Court in Madhukar v. Sangram,
2001(2) R.C.R.(Civil) 704 : (2001) 4 SCC 756, wherein it
was reiterated that sitting as a court of first appeal, it is
the duty of the High Court to deal with all the issues and
the evidence led by the parties before recording its
findings.
13. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC
243, this Court stated as under: (SCC p. 244, para 3)
Page 19 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
"3. The first appeal has to be decided on facts as well as
on law. In the first appeal parties have the right to be
heard both on questions of law as also on facts and the
first appellate court is required to address itself to all
issues and decide the case by giving reasons.
Unfortunately, the High Court, in the present case has not
recorded any finding either on facts or on law. Sitting as
the first appellate court it was the duty of the High Court
to deal with all the issues and the evidence led by the
parties before recording the finding regarding title."
14. Again in Jagannath v. Arulappa (2005) 12 SCC 303,
while considering the scope of Section 96 of the Code of
Civil Procedure, 1908, this Court observed as follows:
(SCC p. 303, para 2)
15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy,
2011(1) R.C.R.(Civil) 802 : 2011(1) Recent Apex
Judgments (R.A.J.) 222 : (2010) 13 SCC 530, this Court
taking note of all the earlier judgments of this Court
reiterated the aforementioned principle with these words:
(SCC pp. 530-31, paras 3-5)
"3. How the regular first appeal is to be disposed of by
the appellate court/High Court has been considered by
this Court in various decisions. Order 41 CPC deals with
appeals from original decrees. Among the various rules,
Rule 31 mandates that the judgment of the appellate
court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied,
the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm
the findings of the trial court. The first appeal is a
valuable right of the parties and unless restricted by law,
the whole case is therein open for rehearing both on
Page 20 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
questions of fact and law. The judgment of the appellate
court must, therefore, reflect its conscious application of
mind and record findings supported by reasons, on all
the issues arising along with the contentions put forth,
and pressed by the parties for decision of the appellate
court. Sitting as a court of first appeal, it was the duty of
the High Court to deal with all the issues and the
evidence led by the parties before recording its findings.
The first appeal is a valuable right and the parties have a
right to be heard both on questions of law and on facts
and the judgment in the first appeal must address itself
to all the issues of law and fact and decide it by giving
reasons in support of the findings. (Vide Santosh Hazari
v. Purushottam Tiwari, 2001(3) R.C.R.(Civil) 243 : (2001)
3 SCC 179, SCC p. 188, para 15 and Madhukar v.
Sangram, 2001(2) R.C.R.(Civil) 704 : (2001) 4 SCC 756
SCC p. 758, para 5.)
5. In view of the above salutary principles, on going
through the impugned judgment, we feel that the High
Court has failed to discharge the obligation placed on it
as a first appellate court. In our view, the judgment under
appeal is cryptic and none of the relevant aspects have
even been noticed. The appeal has been decided in an
unsatisfactory manner. Our careful perusal of the
judgment in the regular first appeal shows that it falls
short of considerations which are expected from the court
of first appeal. Accordingly, without going into the merits
of the claim of both parties, we set aside the impugned
judgment and decree of the High Court and remand the
regular first appeal to the High Court for its fresh disposal
in accordance with law."
13. The points which arise for determination by a court of
first appeal must cover all important questions involved in
the case and they should not be general and vague. Even
though the appellate court would be justified in taking a
different view on question of fact that should be done after
adverting to the reasons given by the trial judge in arriving
at the finding in question. When appellate court agrees with
the views of the trial court on evidence, it need not restate
effect of evidence or reiterate reasons given by trial court;
expression of general agreement with reasons given by trial
Page 21 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026
C/FA/3856/2007 CAV JUDGMENT DATED: 03/07/2026
court would ordinarily suffice. However, when the first
appellate court reverses the findings of the trial court, it
must record the findings in clear terms explaining how the
reasonings of the trial court is erroneous.”
22. For the reasons stated hereinabove, the appeal fails
and is accordingly dismissed.
23. Interim-relief, if any, granted earlier is discontinued.
24. Connected CA, if any, does not survive.
25. Registry to send the Record and Proceedings to the
concerned Court forthwith.
Sd/-
(J.C. DOSHI, J.)
Raj
Page 22 of 22
Uploaded by Raj Subhash Dhobi(HC01779) on Fri Jul 03 2026 Downloaded on : Fri Jul 03 16:05:17 IST 2026