The State Of Assam And 3 Ors vs Pradip Kumar Das
- Court
- Gauhati High Court
1
GAHC010138722024
2026:GAU-AS:13659
IN THE GAUHATI HIGH COURT
HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
RFA/5/2025
1.
The State of Assam
Represented by the Commissioner and
Special Secretary PWD Roads
Department Government of Assam
2.
The Chief Engineer PWD Roads Assam
Chandmari Guwahati 3
District Kamrup Metro Assam Pin 781003
3.
The Superintendent Engineer Public
Works Department Diburgarh Roads Circle
Dibrugarh
4.
The Executive Engineer PWD Dibrugarh
Rural Roads Division Dibrugarh
…..Appellants
-Versus-
1.
Pradip Kumar Das
S/O Lt. Abhoy Charan Das
R/O Fatasil Ambari Nipen Bora Road
Guwahati Kamrup Metro Assam Pin 781025
……Respondent
RFA No. 5/2025 Page 1
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For Appellants Mr. A. Biswas, Advocate
:
For Respondent Mr. N. Alam, Advocate
:
Date of Hearing 23.07.2026
:
10.09.2026
Date of Judgment :
BEFORE
HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT AND ORDER
1. Heard Mr. A. Biswas, the learned counsel for the appellants. Also
heard Mr. N. Alam, learned counsel for the respondent.
2. This appeal under Section 96 read with Order XLI Rule 1 of the
Code of Civil Procedure, 1908 has been filed by the State of Assam
and three others, impugning the judgment and decree dated
10.04.2023 passed by the Court of learned Civil Judge (Senior
Division) No. 2, Kamrup (Metro) in Title Suit No. 362/2014.
3. The facts relevant for consideration of the instant appeal, in brief,
are that the present respondent, namely Shri Pradip Kumar Das,
who was a registered Class I(A) contractor working under various
departments of the Government of Assam and other Public Sector
Undertakings, was, on 18.06.2007, allotted the work of construction
of road from (i) Grab Tea Estate to Bamunbari, (ii) Rajgarh to
Lengeri package, including cross drainage work and routine
maintenance of work for 5 years, bearing package No. AS-06-38.
Before allotment of the said work, the present appellants had
floated a Notice Inviting Tender (NIT) for the work of construction
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and maintenance of rural roads and cross drainage work under the
Pradhan Mantri Gram Sadak Yojana (Phase-VI) for the year 2006–
2007, and the present respondent had submitted his bid, which was
accepted by the appellants' authority. The respondent thereafter
signed the agreement and deposited the performance security.
Thereafter, the Chief Engineer, Public Works (Roads) Department,
Chandmari (defendant No. 3), issued notice to proceed with the
work. The value of the contract was at Rs. 3,09,48,000/- and the
time schedule for completion of work was 9 months from the date
of allotment.
4. It is pertinent to mention herein that there was a wooden bridge,
being bridge No. 2/1 at Tiniali Kenduguri Sologuri road, which was
the only way for the present respondent to carry materials to the
site from the approved quarries, and it was in a good condition. But
subsequently, after allotment of work, the respondent found that
due to heavy rain, the bridge became dilapidated and was unable to
bear the weight of vehicles carrying heavy materials.
5. It was contended by the respondent that he informed the Executive
Engineer, PWD, Dibrugarh Rural Road Division, Dibrugarh
(defendant No. 5), by his letter dated 09.07.2007, and thereafter on
28.08.2007, 20.09.2007, and 15.11.2007, to take necessary steps
for repairing the said bridge. However, no response was received by
him. As such, due to the poor condition of the only bridge which
was to be used for carrying the building materials to the work site,
the respondent was unable to start the work effectively. Due to the
poor condition of the only bridge, the present respondent had to
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bring the building materials from Nagaland/Sivasagar, whereby the
cost of the work was increased and its pace was slowed down. It
was further contended that local people also created obstructions in
using of the road by claiming the same to be their own land.
6. In spite of the aforesaid difficulties, the present respondent/plaintiff
continued the construction work and made satisfactory progress.
Thereafter, the appellants paid three running bills to the present
respondent after deducting an amount of Rs. 15,000/-, Rs. 80,000/-
and Rs. 20,000/- respectively therefrom as liquidated damages.
7. The respondent thereafter, by his letters dated 09.07.2009 and
10.07.2009, requested the Executive Engineer, PWD, Dibrugarh
Rural Roads Division, Dibrugarh (defendant No. 5), not to deduct
any liquidated damages from the bill amount as his work was
hampered due to reasons beyond his control and the same was
communicated by him. In the meanwhile, three extensions were
given to the respondent by the present appellants, and the last
extension of work order given to him expired in October 2008.
However, the respondent continued to execute the work without
extension, and he was paid for his bills on 20.11.2008.
8. Thereafter, by letter dated 26.05.2010, the Executive Engineer,
PWD, Rural Roads Division, Dibrugarh (defendant No. 5), informed
the respondent/plaintiff that he achieved 87.5% of physical progress
and that in the preceding month no work was done for 28 days, and
therefore, the contract has been rescinded.
9. Thereafter, the appellants passed a speaking order showing the
overall progress of work as 76.37%, to which the
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respondent/plaintiff requested to reconsider the matter and release
an amount of Rs. 70,17,207/- against the work done as well as the
security deposit deposited by the respondent/plaintiff.
10. Thereafter, the Secretary to the Government of Assam, Public Works
Department, issued a corrigendum to the effect that the overall
progress of work is 67% only.
11. Finding the rescinding of contract by the present appellants and
deduction of liquidated damages of Rs. 1,20,000/- after the present
respondent had attained 87.5% progress of work to be wholly
unjustified, the present respondent filed a title suit for declaration to
the effect that the order dated 26.05.2010 issued by the Executive
Engineer, PWD, Dibrugarh Rural Road Division, Dibrugarh
(defendant No. 5), whereby the work order/contract of the present
respondent/plaintiff was rescinded, as illegal, unfair, baseless, null
and void, and not binding on the plaintiff/present respondent. He
also prayed for a declaration that the overall progress of the work
made by the plaintiff is 87.5% as stated in the order dated
26.05.2010, and the corrigendum issued by defendant No. 5 on
03.03.2011 stating that physical progress of work of the plaintiff
was 67% as null and void and not binding on the plaintiff. The
plaintiff also prayed for a declaration that the letter dated
03.03.2011 issued by defendant No. 5 imposing penalty as well as
liquidated damages upon the plaintiff as null and void. It also
sought for a declaration that the decision of the Standing
Empowered Committee dated 19.01.2012 upholding the termination
of the work and holding the total physical work to be 67% as null
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and void. The plaintiff also prayed for a decree for realization of a
sum of Rs. 2,98,76,518.39/- as outstanding dues and a sum of
Rs. 1,00,00,000/- as compensation along with interest at the rate of
18% per annum thereon. The said suit was registered as Title Suit
No. 362/2014 in the Court of Civil Judge No. 1, Kamrup (Metro) at
Guwahati. Later on same was transferred to the Court of Civil Judge
No. 2, Kamrup (Metro) at Guwahati.
12. The present appellants, as defendants, had filed a joint written
statement denying the pleas of the plaintiff and taking usual
defenses like lack of cause of action, undervaluation of the suit,
non-payment of proper court fees, and other similar defenses. They
also took the plea that the plaintiff, being a contractor, was
supposed to be well aware of the site condition before bidding for
any work, and that similar type of works under the Pradhan Mantri
Gram Sadak Yojana package (AS-06-37) had been successfully
completed by another contractor using the same timber bridge
about which the plaintiff was complaining, and during the same
period.
13. It was further contended in the written statement that the payment
of running bills of the plaintiff was done from time to time as per
recorded measurements in the Measurement Book (MB), and it was
also contended that the imposition of liquidated damages on the
plaintiff was as per the relevant clauses of the tender agreement. It
was further contended that as per the Measurement Book records,
the physical progress of the work was 67% and not 87.5%, and as
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such, the same was informed to the plaintiff by corrigendum dated
03.03.2011.
14. It was also contended that there was more than 28 days of
continuous non-activity at the site by the plaintiff, and the same was
regarded as a fundamental breach of the tender agreement; as
such, the defendants have rightfully terminated the work order of
the plaintiff/present respondent.
15. On the basis of the pleadings of the parties, the Trial Court had
framed the following issues:
(i) Whether there is a cause of action for this suit?
(ii) Whether the suit is maintainable in its present form and
manner?
(iii) Whether the defendants illegally rescinded the contract
awarded to the plaintiff?
(iv) Whether the letter dated 03.03.2011 issued by defendant
No. 5 imposing penalty and liquidated damages upon the
plaintiff is illegal and liable to be declared as such?
(v) Whether the plaintiff is entitled to the decree and/or relief
as prayed for?
(vi) Whether the plaintiff is entitled to the compensation as
prayed for?
16. In support of his contention, the plaintiff/present respondent
adduced the evidence of four PWs. However, as only PW-1
appeared for cross-examination, hence it is his evidence only which
was taken up for consideration by the Trial Court. The defendants
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also examined one DW in support of their contentions. Ultimately,
by the judgment and decree which has been impugned in this
appeal, the Trial Court decided all the issues in favour of the plaintiff
and decreed the suit.
17. At the outset, it is pertinent to mention herein that the appellants
had also filed an interlocutory application under Order XLI Rule 27
of the Code of Civil Procedure, 1908 in this appeal to bring on
record two documents, namely, (i) The letter dated 21.04.2010
issued by the Executive Engineer, PWD, Dibrugarh Rural Road
Division, addressed to the Chief Engineer, PWD (Roads), Assam,
Chandmari; and (ii) The letter dated 27.04.2010 issued by the Chief
Engineer, PWD (Roads), Assam, Chandmari, addressed to the
Executive Engineer, PWD, Dibrugarh Rural Road Division, to show
that the Executive Engineer, PWD, was authorised by the Chief
Engineer by the aforesaid letters to rescind the contract. However,
the aforesaid interlocutory application was dismissed by this Court
by its order dated 10th of September, 2026 passed in I.A. (Civil) No.
525/2025 for the reasons stated in the said order, mainly, on the
ground that the appellants have failed to bring their case within the
ambit of Circumstances provided for in the Order XLI Rule 27 of the
Code of Civil Procedure, 1908. They have failed to justify as to why
for last 16 years the said letters could not be produced before the
Court and why no whisper about the existence of the said letters
was made earlier.
18. Mr. A. Biswas, the learned counsel for the appellants has submitted
that the Trial Court erred in decreeing the suit by passing the
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impugned judgment and decree without taking into consideration
the documentary evidence exhibited by the defendants, namely
Exhibit-A, Exhibit-B, and Exhibit-C, as well as other relevant
materials on record. He submits that the Trial Court, while coming
to the findings on Issue Nos. 3 and 4, had failed to appreciate the
fact that the present appellants were fully justified in terminating
the contract with the present respondent/plaintiff, who was granted
three extensions by the appellants, however, even after such
extensions, he failed to complete the entrusted work. He submits
that the Trial Court also failed to take into consideration that the
plaintiff committed fundamental breach of contract by remaining
idle for more than 28 days, as was permissible under Clause 52.2(a)
of the General Conditions of Contract.
19. The learned counsel for the appellants further submits that though
the Trial Court, while deciding Issue Nos. 3 and 4, had held that
defendant No. 5, i.e., the Executive Engineer, PWD, Rural Roads
Division, Dibrugarh, was not competent to issue the termination
letter, however, it failed to take into consideration that no such
pleading or evidence was adduced to that effect by the plaintiff, and
no formal issue with that regard had been framed by the Trial Court.
It also failed to take into consideration that, in absence of a
pleading wherein the authority of defendant No. 5 to terminate the
contract was questioned, and in absence of an issue thereto, the
present appellants were deprived of an opportunity to lead evidence
in support of such termination and to show such authority during
the pendency of the suit in the trial.
RFA No. 5/2025 Page 9
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20. He submits that such authority was given to the Executive Engineer,
PWD, Rural Road Division by the Chief Engineer, PWD, Assam by his
letter dated 27.04.2010, and the same is brought on record by
seeking leave of this Court to adduce additional evidence at the
appellate stage under Order XLI Rule 27 of the Code of Civil
Procedure, 1908.
21. The learned counsel for the appellants further submits that the Trial
Court also failed to take into consideration that the Measurement
Book (MB) was exhibited by the defendants as Exhibit-C; however,
the same was not considered by the Trial Court. It also failed to
take into consideration the oral testimony of DW-1 during his cross-
examination, when he deposed that the actual quantum of work
done under the contract can be assessed from the Measurement
Book available with the office of the Executive Engineer, that is,
defendant No. 5. The learned counsel for the appellants further
submits that the Trial Court failed to take into consideration that the
progress of work has to be assessed on the basis of entries made in
the Measurement Book and not on the erroneous mention about the
same in the termination letter dated 26.05.2010, which was
exhibited as Exhibit-8 by the plaintiff.
22. He submits that the Trial Court failed to take into consideration that
the contract was terminated not only because of the poor progress
of work, but also due to fundamental breach of the terms of the
contract by the plaintiff, and as such, he submits that the impugned
judgment of the Trial Court is liable to be set aside. In support of
RFA No. 5/2025 Page 10
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his submission, the learned counsel for the appellant has cited the
following rulings:
i. Madhukar vs. Sangram reported in (2001) 4 SCC 756
ii. Dheeraj Singh vs. Greater Noida Industrial
Development Authority reported in (2023) 19 SCC
214
iii.
Union of India vs. Vasavi Cooperative Housing
Society Limited, reported in (2014) 2 SCC 269
iv. Rangammal vs. Kuppuswami reported in (2011) 12
SCC 220
v. Birendra Shankar Sanyal vs. Dinesh Chandra
Sharma, reported in (2015) 2 GLR 731
vi.
State of Rajasthan vs. T.N. Sahani, reported in (2001)
10 SCC 619
vii. Union of India vs. Ibrahim Uddin reported in (2012) 8
SCC 148
viii. G.L. Litmus Events Private Limited vs. DDA , reported
in 2025 SCC OnLine Del 5772
23. On the other hand, Mr. N. Alam, the learned counsel for the
respondent has submitted that the Trial Court has rightly decreed
the suit after considering the materials on record and after correctly
appreciating the evidence on record.
24. He submits that the Trial Court rightly did not take into
consideration Exhibit-B and Exhibit-C exhibited by DW-1 to show
that the physical progress of the contractual work by the plaintiff
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was 67% at the time of termination, as no Measurement Book could
be produced before the Trial Court. He submits that Exhibit-B and
Exhibit-C, which were computer-generated documents, does not
mention as to from which Measurement Book said account was
prepared. No issue number, seal and signature of issuing authority,
and dealing persons, which were mandatory requirement of
handling the Measurement Book, were mentioned therein.
25. He further submits that the termination order dated 26.05.2010
(Exhibit-8) was issued by present respondent No. 4 (defendant No.
5). However, Exhibit A, that is, the tender agreement, was signed by
appellant No. 2. i.e., the Chief Engineer, PWD (Roads), Chandmari,
and not by appellant No. 4. He submits that as per Clause 52.1 of
the contract agreement, which contains the termination clause, it is
only the employer who can terminate the contract in case of any
fundamental breach of the contract. He submits that the employer
has been defined in the contract as the party who employs the
contractor to carry out the work. He submits that in the instant
case, it was the Chief Engineer, PWD (Roads), Assam, who had
signed the contract agreement, and as such, it is appellant No. 2
who was the employer in the instant case and who only had the
authority to rescind the contract. He submits that the Trial Court
rightly held that defendant No. 5, i.e., present appellant No. 4 did
not have the authority to rescind the contract. He submits that it is
the settled proposition of law that the authority signing/awarding
the contract only has the jurisdiction to terminate the same and no
other authority.
RFA No. 5/2025 Page 12
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26. The learned counsel for the respondent further submits that DW-1,
during his cross-examination, has deposed that the quantum of
actual work was assessed from Measurement Book, but same has
not been submitted or exhibited i.e., the Measurement Book
pertaining to package No. AS-06-38. He submits that in the
corrigendum dated 03.03.2011, which was exhibited as Exhibit-15,
there is no mention therein that the percentage of total progress of
work till withdrawal, that is 67%, was mentioned therein on the
basis of verification from Measurement Book. He further submits
that DW-1 also admitted during his cross-examination that Exhibit-B
and Exhibit-C were computer-generated documents prepared by
him just seven days prior to submission of his affidavit. As such, he
submits that the same cannot be regarded as Measurement Book,
and the Trial Court was right in discarding the same.
27. The learned counsel for the respondent has further submitted that
the present appellant had not objected to Exhibit-11 and Exhibit-12,
th
which clearly reflect that till the date of payment of 11 running
account bill dated 09.09.2009, the total percentage of work
completed by the respondent was 76.37%. He submits that even
after 09.09.2009, the respondent/plaintiff was allowed to carry out
the remaining contractual work till it was illegally terminated by
Exhibit-8 on 26.05.2010 on the ground that the present respondent
had not done any work for preceding 28 days from 26.05.2010,
which itself indicates that till preceding 28 days of 26.05.2010, the
work was going on. He submits that when the documents clearly
indicate that till 09.09.2009, 76.37% of work was already
RFA No. 5/2025 Page 13
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completed, hence the quantification of work as shown in Exhibit-8,
that is, 87.50%, was in conformity with the progress of work shown
in Exhibit-11 and Exhibit-12. He submits that the appellants, as
defendants, had failed to adduce any evidence to counter Exhibit-11
and Exhibit-12 during the trial.
28. The learned counsel for the respondent submits that though the
present respondent is questioning Exhibit-8, i.e., the termination
letter dated 26.05.2010, on the ground that the termination may
not be made by an authority which is not empowered to terminate,
as he was not the employer of the respondent in the contract,
however, he is not questioning the endorsement regarding progress
of work to the extent of 87.50% made therein. He submits that by
applying the doctrine of severability, though the authority of
appellant No. 4 to terminate the contract may be questioned,
however, the admission regarding the progress of work mentioned
therein may be accepted.
29. The learned counsel for the respondent, therefore, submits that the
Trial Court has rightly decreed the suit and there is no justification
in interfering with the same; as such, he prays for dismissing the
present appeal. In support of his submission, he has cited the
following rulings:
i. M/s Rank Projects and Development Private Limited vs.
State of Assam and others (Judgment dated 04.08.2025
in WP(C) No. 4359/2025)
ii. C ommissioner of Police, Bombay vs. Gordhandas Bhanji,
reported in 1952 AIR (SC) 16
RFA No. 5/2025 Page 14
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iii. Marathwada University vs. Seshrao Balwantrao Chavan,
reported in 1989 AIR (SC) 1582
iv. State of Punjab vs. Hari Kishan Sharma reported in 1966
AIR (SC) 1081
v. The State of Assam and others vs. Iqbal Hussain Laskar
reported in 2026 Supreme (Online) (GAU) 205
vi. Canara Bank vs. K.L. Rajgarhia (D) through LRs reported
in 2025 INSC 1278
30. I have considered the submissions of the learned counsel for both
sides and have gone through the materials available on record. I
have also gone through the rulings cited by the learned counsel for
both sides in support of their respective submissions.
31. The point to be determined in this appeal is as to whether the Trial
Court was correct in holding that defendant No. 5, namely, the
Executive Engineer, PWD, Dibrugarh Rural Road Division, was not
authorized to terminate the contract, and whether it was right in
declaring Exhibit-8 (the termination order dated 26.05.2010) to be
bad in law, while simultaneously relying on the same document to
conclude that the percentage of work completed by the respondent
was 87.50%, and whether it was right in decreeing the suit of the
plaintiff.
32. On perusal of the memo of appeal presented by the appellant, it
appears that out of the six issues framed by the Trial Court, the
appellant is aggrieved primarily by the findings on Issues Nos. 3 and
4 as well as Issues Nos. 5 and 6. The findings on Issues Nos. 1 and
2 have not been agitated by them in this appeal. This Court,
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therefore, affirms the findings of the Trial Court on the existence of
the cause of action and the maintainability of the suit, agreeing with
the conclusions drawn on Issues Nos. 1 and 2, respectively.
33. The main bone of contention between the parties in this appeal
centers on Issue No. 3, namely, whether the defendants illegally
rescinded the contract awarded to the plaintiff.
34. A perusal of Exhibit-A (the contract for the construction work
awarded to the plaintiff) reveals that the agreement was entered
into between the Chief Engineer, Public Works Department (Roads),
Chandmari, Guwahati (defendant No. 3 in Title Suit No. 362/2014)
and Sri Pradip Kumar Das, the plaintiff. However, Exhibit-8 (the
termination order dated 26.05.2010) was issued by the Executive
Engineer, PWD, Dibrugarh Rural Road Division, Dibrugarh
(defendant No. 5 in the suit). Hence, it is apparent that the contract
was not rescinded by the authority with whom the plaintiff had
executed the agreement.
35. Under Clause 52.1 of the General Conditions of Contract (GCC), the
"Employer" may terminate the contract if the contractor commits a
fundamental breach. Clause 1.1 defines the "Employer" as the party
named in the contract data who employs the contractor to carry out
the works, including routine maintenance. The records, in the
instant case, show that the Employer was the Chief Engineer, PWD
(Roads), Chandmari, Guwahati-3. The termination, however, was
done by an authority not falling within the definition of "Employer"
under the GCC. Although, the Employer may delegate powers, the
appellants failed to place on record any document, during the trial,
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for establishing that such authority had been delegated to
defendant No. 5 to rescind the contract. There was no whisper of
the letter dated 27.04.2010, allegedly issued by the Chief Engineer,
PWD (Roads), Assam, which purportedly authorized the Executive
Engineer, PWD, Dibrugarh Rural Road Division, to rescind the
agreement.
36. As discussed in the foregoing paragraphs of this judgment, though
the appellants tried to bring on record the aforesaid letter dated
27.04.2010 by filing an application under Order XLI Rule 27 of the
Code of Civil Procedure, 1908, however, by the order dated
10.09.2026 passed in I.A. (Civil) No. 525/2025, the prayer for
adducing additional evidence by the appellants at appellate stage
for introducing the aforesaid document was rejected, and as such,
said document cannot be taken into consideration.
37. Under such circumstances, there appears to be no material on
record to show that the Executive Engineer, PWD, Dibrugarh Rural
Road Division (defendant No. 5) was authorized to rescind the
agreement. Hence, as regards rescission of contract by the
defendant No. 5, the finding of the Trial Court that same is bad in
law, as it was not by the Employer who had the authority of
rescinding the contract or under his authorization that the said
rescission order was issued, cannot be faulted with. Hence, the Trial
Court was right in holding that, as far as rescission of contract by
the defendant No. 5 is concerned, same is bad in law.
38. The contention of the learned counsel for the appellant that the
authority of defendant No. 5 to rescind the contract was not
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questioned by the plaintiff in his plaint is also not acceptable,
inasmuch as the Issue No. 3 framed by the Trial Court pertains to
the illegality as regards rescission of contract awarded to the
plaintiff. Hence, had there been any authorization to the defendant
No. 5 to rescind the contract, same could have been produced by
the present appellants during the trial before the Trial Court. As
such, the finding regarding absence of authority on the part of
defendant No. 5 to rescind the contract does not appear to be
without any basis, and as such, same does not warrant any
interference by this Court.
39. However, as regards the percentage of work done by the plaintiff at
the time of issuance of Exhibit 8 is concerned, this Court is of
considered opinion that the percentage of work mentioned therein,
that is 87.50%, may be believed, as has been rightly done by the
Trial Court, for the following reasons.
40. On perusal of the impugned judgment as well as materials available
on record, it appears that the Trial Court did not rely on Exhibit-15,
which was issued by the Executive Engineer, PWD in form of a
corrigendum wherein it was mentioned that the progress of work
was 67%. The Trial Court took into consideration the fact that in the
Exhibit 15, nowhere it was mentioned that the statement regarding
progress of work of 67% was verified on the basis of measurement
book. Further, it also appears that the Trial Court correctly took into
consideration the fact that Exhibit-15 was issued after a lapse of
about 10 months of the date of issuance of Exhibit-8, without
indicating therein the basis on which Exhibit-15 was issued.
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41. It also appears that the Trial Court also took into consideration that
Exhibit-9 issued by the Chief Engineer, PWD also mentions that
overall progress of the work was 76.37% and it was issued on the
basis of work completed as on 09.09.2009, i.e., much before the
date on which the Exhibit-8 was issued. Further, the contention of
the respondent in Exhibit-11, which has not been controverted by
the appellant's side, that the respondent was paid in full against the
th
11 running account bill dated 09.09.2009, which shows that the
total percentage of work completed by the respondent was 76.37%,
has also not been controverted by the appellants’ side.
42. As such, the materials on record also indicate that till 09.09.2009,
the progress of work completed by the respondent was 76.37%.
Whereas, the contention of the respondent is that he continued to
work after 09.09.2009 also, and he was only stopped from working
further on 26.05.2010 by Exhibit 8. As such, the contention that the
work of the contract was progressing beyond 09.09.2009 and it has
reached to the tune of 87.5%, as indicated in Exhibit 8, may not be
disbelieved, as has been rightly done by the Trial Court on the
touchstone of the principles of preponderance of probabilities.
43. It also appears that the trial court did not take into consideration
the Exhibit-B and Exhibit-C, as it appears that during cross-
examination, the DW-1 admitted that the same were computer-
generated documents which were prepared by him only seven days
prior to submission of the affidavit. It also appears that no issue
number, seal, and signature of the issuing authority or the person
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who maintained such Measurement Book has been indicated
therein.
44. It is also apparent from the materials on record that no joint
verification of the work site was done to ascertain the final progress
of work in pursuant to the speaking order, which has been exhibited
as Exhibit-9. As such, the percentage of progress of work as
indicated in Exhibit-8 appears to be the correct indication of the
progress of work at the time of termination of the contract, as has
been rightly relied upon by the trial court.
45. The appellants have failed to produce the measurement book,
which was available in the office of the Executive Engineer, to justify
the lesser percentage of progress of work of the contract than what
has been indicated in the Exhibit-8. The Trial Court correctly
discarded the Exhibit-15, i.e., the corrigendum issued by the Chief
Engineer, where the overall progress of work was indicated as 67%,
as no indication was made therein that the said percentage of
progress has been mentioned therein on the basis of the entries
made in the measurement book. Hence, this Court is of the
considered opinion that the finding arrived at by the Trial Court
against the Issue Nos. 3 and 4 in the impugned judgment does not
require any interference by this Court in this appeal.
46. As regards the finding of the Trial Court on Issue Nos. 5 and 6 are
concerned, since the Trial Court came to the finding on Issue Nos. 3
and 4 in favour of the plaintiff (the present respondent) and since
the termination of contract by order dated 26.05.2010 (Exhibit-8)
was held to be illegal as well as the Exhibit-15 is also held to be
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issued without any basis, as discussed in foregoing paragraphs of
this judgment, the Trial Court was right in setting aside the
directions regarding imposition of penalty and liquidated damages
on the respondent as unjustified. Further, since the respondent was
found to have completed 87.5% of the contract work, he is entitled
to get the due amount against work, which has already been
completed and as such, the Trial Court was right in decreeing the
suit for realization of due amount of Rs. 2,98,76,518.39/- along with
an interest @ 6% per annum. The Trial Court, accordingly, also did
not erred in granting other reliefs sought for by the plaintiff as those
relief were consequent upon the findings on Issue Nos. 3 and 4,
which were already decided in favour of the plaintiff, i.e., the
present respondent.
47. For the discussions made and the reasons stated in the foregoing
paragraphs of this judgment, this Court finds no merit in the
present appeal and accordingly, the same is dismissed with cost.
48. Send back the record of the Trial Court to the concerned Court
along with a copy of this judgment.
JUDGE
Comparing Assistant
Amita Sharma
2026.09.15 17:50:01 +05'30'
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