Calcutta High Court
M/S. B.B.M. Enterprises vs State Of West Bengal & Anr on 16 April, 2025
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
C.S. (COM.) No. 20 of 2024
(Old No. C.S. 404 of 1997)
M/s. B.B.M. Enterprises
Versus
State of West Bengal & Anr.
Ms. Nilanjana Adhya
Mr. Supratik Basu
... For the plaintiff.
Mr. Dhruba Ghosh, Sr. Adv.
Ms. Noelle Banerjee
Mr. Priyankar Saha
Mr. Altamash Alim
Mr. Paritosh Sinha
Mr. Arindam Mandal
Ms. S. Ghosh
Mr. Aishik Chakraborty
Ms. Srijani Mukherjee
Mr. Ritoban Sarkar
... For the defendants.
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Hearing Concluded On : 11.03.2025
Judgment on : 16.04.2025
Krishna Rao, J.:
1. The plaintiff has filed the present suit praying for the following reliefs:
“a) Declaration that the said undated money receipt
(being a part of Annexure ‘KK’ hereto) be declared
null and void, illegal of no effect whatsoever and
not binding on the plaintiff;
b) Delivery up and cancellation of the undated
money receipt (being a part of Annexure ‘KK’
hereto);
c) Perpetual injunction restraining the defendant,
its officers and employees from taking any step or
further step in terms of and/or pursuant to the said
purported undated money receipt (being a part of
the Annexure ‘KK’ hereto);
d) Decree for Rs. 40,72,963.00;
e) In the alternative, an enquiry into damages
suffered by the plaintiff and decree for such sum or
sums, as may thereupon be found due to the
plaintiff;
f) Interest on and from March 1, 1997 till filing of
the suit, interim interest and interest on judgment
@ 24% per annum till compoundable quarterly on
the sum of Rs.40,72,963/- till actual payment
thereof by the defendant;
g) Receiver;
h) Injunction;
i) Attachment;
j) Costs;
k) Further and/or other reliefs.”
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2. The plaintiff is a partnership firm, registered under the Indian
Partnership Act, 1932, carrying on business as Class-I Government
Contractor.
3. The defendant is the State of West Bengal represented through the
Secretary, Irrigation and Waterways Department and the defendant no.
2 is the Chief Engineer-II, Irrigation and Waterways Department of the
State of West Bengal.
4. On 4th March, 1995, the defendants issued a work order dated 27th
February, 1995, in favour of the plaintiff for special repairs to Syphone
Aqueduct over Negua Diversion Channel at its crossing with O.O.C.
under M.C. Sub Division No. IV, Egra during the year 1994-95 under
Midnapore Construction Division, now named Contai, Irrigation
Division, under West Circle II and Chief Engineer-II and the said work
was to be completed within 2 ½ months starting from 6th March, 1995
till 21st May, 1995.
5. As per the work order dated 27th February, 1995, the plaintiff accepted
all the terms and conditions contained thereof and accordingly an
agreement bearing No. 46 MCD of 1994-95 was executed by and
between the parties.
6. The work order was given to the plaintiff on 4th March, 1995, with a
direction that the commencement of the said work should take place
from 6th March, 1995 and layout of the said work was given by the
Assistant Engineer and Sub-Assistant Engineer of the defendant no.1
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on or around 24th March, 1995 and the location of the site work, i.e.
Pani Parul, District Midnapore was handed over to the plaintiff on the
same day.
7. According to the drawing, the plaintiff had to dismantle two side wall
and dig upto the depth of 6.70 M. The dismantling of work was started
from the east side of the wall. Dismantling work was completed upto
the water level but it was suspended bailing out of water.
8. As per the case of the plaintiff on or about 13th April, 1995, the villagers
of Pani Parul Village obstructed to carry out the work awarded to the
plaintiff, finally permitted the plaintiff to put up four (4) cross bandhs.
The plaintiff had completed four cross bandhs by 17th April, 1995 and
bailing out of water was started but the defendants stopped it on 18th
April, 1995 without any reasons.
9. Due to accidently death of one local village boy near the work site, some
of the agitated villagers at the work site detained two Lorries bearing
No. WMK-8691 and WMK-8692 as well as the representative of the
plaintiff. The plaintiff by a letter dated 26th April, 1995 informed the
said incident to the Officer-in-Charge, Egra Police Station being G.D.
No. 1234. Due to the said incident, the work of the plaintiff was
stopped for one week. By a letter dated 27th April, 1995, the defendants
granted the plaintiff five days extension to complete the work i.e. upto
25th May, 1995.
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10. On 5th May, 1995, the defendants have issued a show cause notice
upon the plaintiff calling upon the plaintiff to submit reply within seven
days why an action under Clause 2 of the Agreement Form No. 2911 (ii)
would not be taken against the plaintiff. In reply to the said notice, the
plaintiff has informed the defendants that though the work order was
issued on 4th April, 1995 and the site was handed over to the plaintiff
on 17th April, 1995 and accordingly actual date of commencement of
the work should be reckoned from 17th April, 1995 and actual date of
completion would be 14th July, 1995. The plaintiff has also informed
the defendants that the plaintiff has executed the work of Rs.
3,62,000/- and requested the defendants to extend the time to
complete the work upto 30th July, 1995.
11. In reply to the said two letters of the defendants dated 29th June,
1995, the plaintiff has submitted his reply dated 3rd July, 1995 to the
then defendants with the request to confirm the executed item of works
and to grant necessary permission for excess/ supplementary items of
work. On being satisfied with the work of the plaintiff, the defendants
by a letter dated 5th July, 1995, extended the time of completion of the
work upto 30th July, 1995.
12. The plaintiff had informed the defendants by a letter dated 19th August,
1995 that the plaintiff had completed the work on 11th August, 1995
including some supplementary works amounting to a sum of Rs.
5,63,397.38. Thereafter, by a letter dated 29th August, 1995, forwarded
its second supplementary bill for the supplementary work and excess
6
quantity of items amounting to Rs. 4,12,371/- and requested the
defendants to clear the dues and make payment for all works done by
the plaintiff.
13. On 22nd September, 1995 upon completion of work on 11th August,
1995, the plaintiff as per Clause 7 of the Conditions of Contract raised
its 1st and Final Bill which included the value of work executed as per
work order along with the excess quantity and as recorded in the 1st
and 2nd Supplementary tender for a total sum of Rs. 24,63,099.27.
14. Ms. Nilanjana Adhya, Learned Counsel appearing for the plaintiff,
submits that the plaintiff by a letter dated 21st August, 1995 brought to
the notice of the defendant that the Executive Engineer had raised
questions regarding the quantity of earth and bailing out of water
without actually checking the measurements which was previously
noted by Mr. Barik, i.e. the Sub-Assistant Engineer on or around 5th
July, 1995. The plaintiff states that the Executive Engineer wanted to
reduce the measurement after the completion of the work. The
measurement according to the drawing, design and specification of the
work, the height of the concreting was fixed for 5.70 meters, which was
reduced to final length of 4.0 meters, as a result of which the plaintiff
was left with a lot of unused materials and had suffered financial loses.
15. Ms. Adhya submits that the plaintiff by a letter dated 31st August,
1995, had requested the defendants to withdraw the penal action
against the plaintiff as the prevailing conditions, natural calamities and
7
other conditions led to delay of completion of the work but inspite of
such hindrances, the plaintiff completed the work on or around 11th
August, 1995.
16. Ms. Adhya submits that the plaintiff had sent numerous letters to the
defendants requesting for payment for the work executed by the
plaintiff. By a letter dated 31st October, 1995, one cheque of Rs.
5,54,000/- was sent by the defendants to the plaintiff on 28th
September, 1995, being the part payment of total bill amount of Rs.
24,63,099.27.
17. Ms. Adhya submits that in order to get the balance payment payable by
the defendants within 31st March, 1996, following the usual practice,
the plaintiff through its agent sent an advance undated money receipt
on 30th March, 1996 to the Executive Engineer, Midnapore
Construction Division (now known as Contai Irrigation Division),
Contai, Midnapore, in duplicate wherein it is mentioned that “Received
Rs ……….. (Rupees …………….) against above noted work”.
18. On 30th March, 1996, the defendants made payment of Rs. 12,53,052/-
out of Rs. 24,63,099.27 but in the blank money receipt submitted by
the plaintiff, the defendants with a malafide intention, incorporated the
word “full and final” to deprive the plaintiff from claiming the balance
amount shown in the bill submitted by the plaintiff on 22nd September,
1995 by another type writer.
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19. Ms. Adhya submits that the words mentioned as “in full and final
settlement of all demands” in the undated copy of receipt was
wrongfully and fraudulently typed and incorporated by the defendants
and without the knowledge of the plaintiff only with the intention to
deprive the plaintiff from its legible claim.
20. Ms. Adhya further states that upon close scrutiny of the said undated
receipt copy, it will be evident that the words “in full and final
settlement of all demands” were typed after a ‘full stop’ and the typed
impression of the said words are different against the typed impression
of “against above noted work” and also it is stated by the plaintiff that it
will be evident upon close reading of the undated receipt copy that the
typed impression of figures “12,53,052.00” and the words “Twelve
Lakhs Fifty Three thousand and Fifty Two only” and “in full and final
settlement of all demands” are all of the same typed impression.
21. Immediately when the plaintiff came to know about the illegal act, the
plaintiff had sent a letter to the Executive Engineer, Midnapore
Construction Division (now known as Contai Irrigation Division),
Contai, Midnapore recorded its protest against the mishap and
unauthorized interpolation of the words done by the defendants, and
forwarded the same to the Superintending Engineer II, Western Circle,
Midnapore, Chief Engineer- II, I & W Department, Govt. of West Bengal,
Writers’ Buildings, Calcutta – 700001 and Secretary, I & W Directorate,
Govt. of West Bengal, Writers’ Buildings, Calcutta- 700001 for
investigation.
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22. Ms. Adhya submits that the plaintiff by a letter dated 17th June, 1996,
informed the Hon’ble Minister in charge, Irrigation and Waterways
Department, Government of West Bengal, Writers’ Building, Calcutta –
700001, informing about the incident and mentioning the amount owed
by the defendant to the plaintiff, and requested the Hon’ble Minister to
investigate the matter personally or get it investigated through a
responsible officer. Thereafter, during the investigation it transpired
that the Sub-Assistant Engineer had indeed reduced the measurement
at the instruction of Executive Engineer.
23. Ms. Adhya submits that the Chief Engineer- II, I & W Department,
Government of West Bengal, by a letter dated 18th September, 1996,
requested the plaintiff to place a Memorandum List and the same was
duly presented by the plaintiff to the defendant.
24. Ms. Adhya submits that on 16th October, 1996, the Superintending
Engineer in exercise of powers under clause 24 of the conditions of
contract acknowledged the claims and directed for payment. She
submits that the claim of the plaintiff on the basis of bill raised by the
plaintiff, admitted by the defendant.
25. Ms. Adhya, submits that by a letter dated 17th January, 1997, Mr. Asit
Kumar Barik informed the plaintiff that he was transferred from the
said work on or around 6th July, 1995 and he admitted that he was
forced by the S.D.O., Egra Irrigation Sub Division to reduce the
measurement, as a result, he had struck out the original measurement
10
recoded on 16th September, 1995. Further, the concerned S.D.O. had
put his signature in the measurement book on a back date, i.e. 16th
September, 1995 although he had put the signature on 23rd May, 1995.
26. The plaintiff finally on 4th March, 1997, through its Learned Advocate,
called upon the Chief Engineer-II, Irrigation and Waterways Directorate,
Government of West Bengal being the defendant no.2, to pay the sum
of Rs. 40,72,963/- within 15 (fifteen) days from the date of receipt of
the notice, to which the Executive Engineer, Contai Irrigation Division
of the defendant no.1, by a letter dated 27th March, 1997, addressed to
the Advocate-on-Record of the plaintiff, stated that the plaintiff is not
entitled to claim any amount for extra work and the plaintiff has not
executed any extra work.
27. Mr. Dhruba Ghosh, Learned Senior Advocate appearing for the
defendants submits that none of the claims made by the plaintiff in this
instant suit are tenable and the same is liable to be dismissed with
costs.
28. Mr. Ghosh submitted that the plaintiff has essentially made four claims
in this suit, amongst which the two claims, namely, claim for damages
suffered due to reduction of measurement not recorded in the
measurement book and business loss amounting to Rs. 20,00,000/-,
are not proved and the plaintiff has not even tried to prove any
damages or losses regarding the same.
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29. Mr. Ghosh further submits that from the facts and circumstances of
the case, it is evident that it was the plaintiff which attributed to the
delay in completing the project.
30. Mr. Ghosh submits that neither claims of the plaintiff has any merit at
all and the plaintiff has already been paid for the work done by it in
relation to the contract in full and final satisfaction and the same was
duly acknowledged by the plaintiff as well.
31. Mr. Ghosh submits that the plaintiff has used and relied on the forged
and fabricated documents in support of its purported claim and on that
ground the suit is liable to be dismissed.
32. Mr. Ghosh submits that in accordance to the work order dated 27th
February, 1995, the work was required to be completed within 2½
months reckoned from 6th March, 1995 within 20th May, 1995 but the
plaintiff was not able to complete the work within the said period due to
negligence and deficiency on its part and the plaintiff did not even
attend at the site until 24th March, 1995 for taking over the site.
33. Mr. Ghosh submits that the running measurement of the plaintiff’s
work was done on 23th May, 1995 and 26th June, 1995 and the said
measurement was duly confirmed by the plaintiff on 17th July, 1995.
He submits that on the basis of such measurement, payments have
been made to the plaintiff and the plaintiff has accepted the total
amount as full and final payment.
12
34. Mr. Ghosh submits that the plaintiff to justify the delay, has tried to
magnifying an incident involving the local villagers. The defendants
categorically assert that such incident never interfered with the work of
putting up of the cross bundhs on 17th April, 1997, what happened in
real was some villagers started fishing in the water collected in the
space between the cross bandhs, and in order to avert any possible
danger to the villagers, the Executive Engineer requested the plaintiff to
stop bailing out of water temporarily. Thereafter, on or around 26th
April, 1995, a local boy died by drowning in the water in the Aqueduct
but the next day of such incident, the site was again free to commence
work.
35. Mr. Dhruba Ghosh submits that from the measurement book also it
will appear that although the plaintiff claims to have been interrupted,
the plaintiff has claimed charges for running its pumps continuously
for 21 hours a day from 16th April, 1995 to 19th April, 1995 and again
from 26th April, 1995 to 27th April, 1995, therefore, it will appear that
the plaintiff’s allegation of forcible stoppage of work on 18th April, 1995,
is contrary to the facts.
36. Mr. Ghosh submits that the defendants denied that the plaintiff
executed any excess or supplementary items of work and as such, there
was no question of the defendants confirming any such excess or
supplementary work since the plaintiff has not produced any document
or any contemporaneous correspondence relating to authorization or
requirement for such alleged excess or supplementary work.
13
37. Mr. Ghosh submits that the measurement of the plaintiff’s work was
done on 23rd May, 1995 and 26th June, 1995 and that such
measurement was duly confirmed by the plaintiff on 17th July, 1995
and on the basis of such measurement, full and final payments were
made with the satisfaction of the plaintiff.
38. Mr. Ghosh submits that in any event supplementary claims could have
only been made if there was a supplementary tender issued and
approved in writing in favour of the plaintiff and in the instant case,
there was no second supplementary tender was issued or any excess
work was approved.
39. Mr. Ghosh further submits that the plaintiff tried to argue that the
Superintending Engineer had admitted the claim by way of his letter
dated 16th October, 1996, which is an incorrect interpretation of the
said letter, in the letter dated 16th October, 1996, it was stated that the
concerned officer will scrutinize the claims first and then will decide
whether the same are tenable and later on, by a letter dated 17th
February, 1997, the plaintiff was informed that the matter was
scrutinized and found to not be payable.
40. Mr. Ghosh submits that the contract provides that in case of an
additional work which is required to be undertaken should be
necessary by way of a supplementary tender and not otherwise and the
additional work commenced by the plaintiff was beyond the tender
14
schedule without the written order of the Engineer-in-Charge would be
entertained as provided in Clause 22 of the contract.
41. Considering pleadings of both the parties by an order dated 22nd April,
2004, the following issues were framed:
(i) Is the suit maintainable in its present form?
(ii) Has the plaintiff been paid in full and final
satisfaction in relation to the contract and has
the same been acknowledged by the plaintiff
as alleged in the written statement?
(iii) Was the plaintiff unable to complete the work
within time as alleged in the written
statement?
(iv) Did the plaintiff execute additional and excess
work as stated in the plaint?
(v) Has the plaintiff used or relied on forged and
fabricated documents in support of their claim
in the suit?
(vi) Is the undated money receipt being a part of
the plaint null and void, illegal and has no
binding force?
(vii) Is the plaintiff entitled to raise any claim in
relation to the contract?
(viii) Is the plaintiff entitled to a decree as prayed
for?
(ix) To what relief, if any, is the plaintiff entitled?
42. The plaintiff in order to prove its case has examined one witness,
namely, Nirmalendu Das, a partner of the plaintiff firm and had
exhibited a total number of “Forty-two (42)” documents which were
marked as Exhibit – “A” to Exhibit – “PP”.
15
Exhibit – A: Copy of the work order dated 27th
February, 1995.
Exhibit – B: Copy of an agreement entered by and
between the parties, regarding the commencement of
work.
Exhibit – C: Copy of a letter dated 24th April, 1995,
sent by the plaintiff to the Executive Engineer.
Exhibit – D: Copy of a Police Complaint lodged by the
plaintiff, on 26th Apri, 1995, with the Egra Police
Station in respect of public agitation.
Exhibit – E: Copy of a letter dated 27th April, 1995,
sent by the defendant to the plaintiff granting
extension for 5 days.
Exhibit – F: Copy of a letter dated 27th April, 1995,
sent by the defendant to the plaintiff.
Exhibit – G: A copy of a show cause notice dated 5th
May, 1995, issued by the Executive Engineer,
addressed to the plaintiff.
Exhibit – H: Copy of a letter dated 15th May, 1995,
wherein the plaintiff replied to the show cause notice
dated 5th May, 1995.
Exhibit – I: Copies of two letters dated 17th May,
1995 and 18th May, 1995, issued by the Executive
Engineer for the defendant, alleging that the plaintiff
has acted against the clause 2 of the conditions of
contract.
16
Exhibit – J: Copy of a letter dated 20th June, 1995,
sent by the plaintiff, addressing the Executive
Engineer for the defendant.
Exhibit – K: Copy of Letter dated 21st June, 1995
sent by the plaintiff to the defendant, addressing the
issue of wrongly imposing penalty as per the clause 2
of the conditions of contract.
Exhibit – L: copy of a letter dated 3rd July, 1995,
sent by the plaintiff to the defendant, wherein the
itemwise description of the work executed and to
what extent the work was executed was given.
Exhibit – M: Another copy of the letter dated 3rd July,
1995, sent by the plaintiff to the defendant.
Exhibit – N: Copy of a letter dated 5th July, 1995,
sent by the defendant to the plaintiff, extending the
time for completion of work.
Exhibit – O: Copy of a letter dated 14th July, 1995,
sent by the plaintiff to the defendant, stating that the
defendant had failed to issue iron rods and cement
required for commencement of work.
Exhibit – P: Copy of a letter dated 15th July, 1995,
sent by the plaintiff to the Executive Engineer,
Midnapore Construction Division, requesting to make
payment.
Exhibit – Q: Copy of a letter dated 19th July, 1995,
sent by the plaintiff to the Executive Engineer,
Midnapore Construction Division, informing the
17
defendant about the extra work executed by the
plaintiff.
Exhibit – R: Copy of a letter dated 24th July, 1995,
sent by the plaintiff to the defendant, complaining
about non-availability of the departmental staff.
Exhibit – S: Copy of a letter dated 19th August, 1995,
sent by the plaintiff to the Executive Engineer,
Superintending Engineer, and the Sub-Divisional
Officer, stating therein that the work had been
completed by the plaintiff.
Exhibit – T: Copy of a letter dated 19th August, 1995,
along with its enclosures, sent by the plaintiff to the
Executive Engineer, Superintending Engineer, and the
Sub-Divisional Officer.
Exhibit – U: Copy of a letter dated 21st August, 1995,
sent by the plaintiff, wherein the plaintiff wrote to the
Superintending Engineer stating about the reduction
of measurement done by the Sub-Assistant Engineer.
Exhibit – V: Copy of a letter dated 29th August, 1995,
along with the supplementary tender for an amount of
Rs.4,12,371/- and an excess statement on the same
date for Rs.92,912/-, sent by the plaintiff to the
defendant.
Exhibit – W: Copy of a letter dated 31st August,
1995, sent by the plaintiff to the defendant,
requesting to withdraw the penal charges.
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Exhibit – X: Copy of a letter dated 22nd September,
1995, sent by the plaintiff to the defendant,
submitting its 1st RA Bill.
Exhibit Y: Copy of a letter dated 27th September,
1995, sent by the Executive Engineer of the
defendant, to the plaintiff.
Exhibit – Z: Copy of a letter dated 31st October,
1995, sent by the plaintiff to the Executive Engineer of
the defendant, regarding raising of 1st and 2nd
Supplementary Bills.
Exhibit – AA: Copy of a letter dated 31st October,
1995, sent by the plaintiff to the Executive Engineer of
the defendant, informing the defendant about the
dues payable by them and acknowledging payment
of only Rs. 5,54,000/- out of the total due amount.
Exhibit – BB: Copy of a letter dated 4th December,
1995, sent by the plaintiff to the Executive Engineer of
the defendant, stating the measurements recorded by
Mr. Barik on 7th July, 1995.
Exhibit – CC: Copy of one undated receipt sent by
the plaintiff to the defendant, where the defendant
mentioned paying the entirety of the dues payable by
them “in full and final settlement of all demands”.
Exhibit – DD: Copy of a letter dated 30th March,
1996, sent by the plaintiff to the Executive Engineer of
the defendant, regarding the interpolation of the
contents of the undated receipt sent by the plaintiff to
the defendant for payment of dues.
19
Exhibit – EE: Copy of a letter dated 17th June, 1996,
sent by the plaintiff to the Hon’ble Minister-in-Charge,
Irrigation & Waterways Department, requesting him
to investigate the plaintiff’s issues.
Exhibit – FF: Copy of Memo No. 3715-CI/2P-12/96,
sent by the defendant to the plaintiff requesting the
plaintiff to send a memorandum list.
Exhibit – GG: Copy of a letter dated 7th October,
1996 sent by the plaintiff to the Chief Engineer-II,
Irrigation & Waterways Department along with a
memorandum list as asked by the defendants.
Exhibit – HH: Copy of a letter sent by the plaintiff to
the Executive Engineer of the defendant.
Exhibit – II: Copy of a letter dated 20th January,
1997 sent by the plaintiff to the Executive Engineer of
the defendant, explaining the flood situation.
Exhibit – JJ: Copy of a letter dated 27th January,
1997 sent by the plaintiff to the Chief Engineer – II,
Irrigation & Waterways Department to take
appropriate actions.
Exhibit – KK: Copy of a letter dated 4th March, 1997,
sent by the plaintiff’s Advocate to the Chief Engineer –
II, Irrigation & Waterways Department, requesting
payment of dues.
Exhibit – LL: Copy of a letter dated 27th March, 1997
sent by the defendant to the plaintiff, replying to the
Plaintiff’s Advocate’s notice.
20
Exhibit – MM: Copy of a letter dated 21st July, 1997,
sent by the plaintiff’s Advocate to the Chief Engineer –
II, Irrigation & Waterways Department and to the
Secretary of Irrigation & Waterways Department.
Exhibit – NN: Copy of a letter dated 24th February,
1995, sent by the Government of West Bengal,
Irrigation & Waterways Directorate, Office of the
Superintending Engineer to the Plaintiff, regarding the
tender for the work to be done by the plaintiff.
Exhibit – OO: Copy of a letter dated 16th October,
1996 sent by the Government of West Bengal,
Irrigation & Waterways Directorate to the Plaintiff,
explaining the work to be done by the plaintiff.
Exhibit – PP: A document dated 22nd January,1997,
written by the Executive Engineer, Contai, Irrigation
Department Contai, Midnapore, directing Sri Asit
Kumar Barik, S.A.E. directing him to state the
circumstances under which measurement was
cancelled.
43. The plaintiff in order to prove its case has examined one witness,
namely, Madhusudan Dey, former Executive Engineer of Contai
Irrigation Department and had exhibited four (4) documents which
were marked as Exhibit – “1” to Exhibit – “4”.
Exhibit – 1: Copy of the contract, entered between the
parties.
Exhibit – 2: Copy of a letter dated 17th May, 1995
sent by the Government of West Bengal, Office of the
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Executive Engineer, Midnapore Construction Division,
Contai, Midnapore, addressing the Executive Engineer
and the plaintiff.
Exhibit – 3: Copy of a Memo dated 28th March, 1996,
sent by the plaintiff to the Executive Engineer, raising
its 1st RA Bill.
Exhibit – 4: Copy of Supplementary Tender.
44. The plaintiff has made the following claim in paragraph 57 of the plaint
which reads as follows:
“57. In the circumstances, the plaintiff is entitled to claim
and claims a sum of Rs. 40,72,963/- against the defendant,
particulars whereof are set out hereunder:
PARTICULARS Amount
A. Executed value of work from Annexure "A" Rs.24,63,099.27
B. Interest @ 24% quarterly compounded from Rs.4,61,311.97
5th July, 1995 to 31st March, 1996
Rs.29,26,411.21
B/F Rs.29,26,411.21
C. Less payment including departmental
Materials and S.T.I.T. etc. (-) Rs.12,53,052.00
Rs.16,73,399.21
D. Interest from 1st April, 1996 to
28th February, 1997 @24% quarterly
Compounded Rs.3,99,393.61
Rs.20,72,962.88
Say Rs.20,72,963.00
E. Damage suffered due to reduction
of measurement and not recorded in
the Measurement Book Rs.10,00,000.00
F. Business loss Rs.10,00,000.00
22
Total: Rs. 40,72,963.00
---------------------------------."
45. The defendants have not argued the matter on the point of
maintainability of the suit. This Court finds that the plaintiff has filed
the suit in its proper form, has paid the Court Fees and this Court is
having jurisdiction to try and dispose of the suit filed by the plaintiff,
thus the issue no.1 is decided in favour of the plaintiff.
46. The issue nos. 2 to 9 are connected with each other, accordingly, all the
issues are taken up together for consideration. By a letter dated 27th
February, 1995, the Executive Engineer, Midnapore Construction
Division, Contai issued work order for special repairs to the Syphone
Aqueduct over Negua Diversion Channel at its crossing with O.O.C.
under Midnapore Construction Sub-Division No. IV, Egra during 1994-
1995. Subsequently, on 7th March, 1995, a formal written agreement
was executed between the parties. The work was to be completed within
2 ½ months starting from 6th March, 1995 and to be completed by 21st
May, 1995. By a letter dated 24th April, 1995, the plaintiff had informed
the Executive Engineer that the plaintiff has completed four numbers of
cross bandhs on 17th April, 1995 thereafter the plaintiff taken up the
work in full swing and bailing out of water started by engaging five
pump sets but the same was stopped by the Executive Engineer on 18th
April, 1995. In the said letter, it was informed by the plaintiff to the
defendants that time for completion of the work was allotted to the
23plaintiff is not sufficient and for completion of the said work will take
minimum 5 to 6 months. By a letter dated 27th April, 1995, the
Executive Engineer extended the time to complete the work till 25th
May, 1995. On the same day, the Executive Engineer has informed the
plaintiff that till 25th April, 1995, 68% time has been elapsed for
completion of the work but the plaintiff has only executed 10% of the
work and also requested the plaintiff to complete the work within the
stipulated period of time. On 5th May, 1995, the Executive Engineer has
issued the notice to the plaintiff under Clause 2 of the agreement to
show cause within 7 days why an action shall not be taken against the
plaintiff for dilatory tactics which is detrimental to the interest of work
and causing loss to the Government. On 15th May, 1995, the plaintiff
has submitted a reply informing that the work order was issued on 4th
April, 1995 but the site was fully handed over to the plaintiff on 17th
April, 1995 and as such the actual date of commencement of work is
from 17th April, 1995. In the said letter, it was informed by the plaintiff
to the defendants that from 27th April, 1995 to 4th May, 1995 due to the
death of one villager on 27th April, 1995, the work was hampered and
only on 4th May, 1995, the plaintiff has commenced the work. In the
said letter by calculating the holidays and the work hampered due to
the death of one of the villager, the plaintiff has informed that the
actual date of completion of work would be 14th July, 1995 and the
date of completion depends on weather condition. In the said reply, the
plaintiff has requested for extension of time to complete the work till
30th July, 1995.
24
47. On receipt of the said letter, the Executive Engineer by a letter dated
17th May, 1995, had sent a detailed reply to the plaintiff informing that
the plaintiff has only executed 15% of the work. Time and again, the
Executive Engineer requested the plaintiff not to make misleading and
fabricated fact in order to cover up the wrongful and inordinate delay in
executing the work within the stipulated period of time. On 18th May,
1995, the Executive Engineer issued a notice informing the plaintiff that
the reply submitted by the plaintiff to the notice under Clause 2 of the
agreement is not satisfactorily and also informed that the plaintiff would
be liable to pay levy as compensation at the rate and period to be fixed
and intimated to the plaintiff by the Superintending Engineer-II,
Western Circle but the plaintiff is directed to continue the execution of
the said work. By a letter dated 5th July, 1995 as per the request made
by the plaintiff, the Executive Engineer has extended the time to
complete the work till 30th July, 1995 without prejudiced to the right of
the department to recover liquidated damage in accordance with the
provisions of Clause 2 of the agreement.
48. The plaintiff by a letter dated 15th July, 1995, informed the Executive
Engineer that the work awarded to the plaintiff is going to be complete
shortly and no payment was received by the plaintiff and requested to
give necessary direction to Mr. Barik to prepare and submit the bill for
payment. By a letter dated 24th July, 1995, the plaintiff has again
informed the Executive Engineer that the scheduled date of final
concreting in right side of the work was fixed on 21st July, 1995 and the
25plaintiff has completed the shuttering work on 20th July, 1995 but
inspite of several calls, none of the departmental officials reached to the
site due to which the concreting work could not take place and from
21st July, 1995, the man and machineries were kept idle.
49. By a letter dated 19th July, 1995, the plaintiff also informed the
defendant that the plaintiff has executed some supplementary and
excess works as per verbal instructions of the Engineer-in-Charge but
the plaintiff has not received any written confirmation of the said extra
work. The plaintiff also informed the defendants that the work is going
to be complete within 30th July, 1995 and requested the defendants for
payment of the excess work executed by the plaintiff. By a letter dated
19th August, 1995, the plaintiff has submitted details of the extra/
supplementary works executed by the plaintiff to the defendants with
the request for payment of the work executed by the plaintiff.
50. By a letter dated 22nd September, 1995, the plaintiff has submitted 1st
Final bill for a total sum of Rs. 24,65,099/- with the request to the
defendants for release the payment as per the bill raised by the plaintiff.
On 27th September, 1995, the Executive Engineer sent a reply to the 1st
supplementary work wherein the Executive Engineer replied to the
plaintiff to the item wise works.
51. On 28th September, 1995, the plaintiff has received an amount of Rs.
5,54,000/- and the same was duly informed by the plaintiff to the
26Executive Engineer by a letter dated 31st October, 1995 and requested
to release the final payment.
52. It is the case of the plaintiff that on 5th July, 1995, a joint measurement
of the work executed by the plaintiff was taken and recorded in the
measurement book and such recording was done by Shri Asit Kumar
Barik who was the Sub-Assistant Engineer and was in-charge of the
said work. The plaintiff found that the entries of the joint measurement
have been reduced by another Sub-Assistant Engineer, namely,
Santosh Kumar Bhuniya. When the plaintiff came to know about the
same, immediately, the plaintiff by a letter dated 4th December, 1995,
informed to the Executive Engineer with the request to investigate into
the matter.
53. It is the further case of the plaintiff that on 30th March, 1996, the
plaintiff also came to know that the money receipt sent by the plaintiff,
in the said money receipt, the office of the defendants have fraudulently
typed in the said money receipt “full and final settlement of all demand”.
When the plaintiff came to know about the said fact, the plaintiff by a
letter dated 30th March, 1996, sent a protest letter to the Executive
Engineer. On receipt of complaint from the plaintiff, no action has been
taken by the defendants. The plaintiff on 17th June, 1996, has
submitted an appeal before the Hon’ble Minister-in-Charge, Irrigation
and Waterways Department, Government of West Bengal with the
request to investigate into the matter through a responsible officer so
that the plaintiff can get his legitimate claim.
27
54. On 17th January, 1997, Shri Asit Kumar Barik sent a letter to the
Executive Engineer copy to the Superintending Engineer and also to the
plaintiff wherein it is mentioned that:
“S.D.O. Egra Irrigation Sub-division took me to his chamber and
directed me to reduce the measurement recorded. He threatened me
that if I fail to agree to his proposal to reduce the measurement, my
provident fund, gratuity, would be held up and I will be suspended
though I was on the verge of retirement. I was afraid for the
threatening meted out to me by the S.D.O. Then I made an oral
submission before executive Engineer who told me to carry out the
order of S.D.O. failing which, penal action may be taken from his
end. Ultimately I was forced to reduce the measurement as a result
I, struck out the original measurement on 16.9.95. The concerned
S.D.O. put his signature in the M.B. by putting back date i.e. on
16.9.95 through actually he signed on 23.5.95.Now I give below a chart showing the original measurement
and reduced measurement in item wise:
ORIGINAL MEASUREMENT REDUCED MEASUREMENT.
RECORDE IN THE M.B.
ACCORDING TO ACTUAL
WORK DONE:
Item No.
5. 31,823.43 M3 21,727.81 M3
6. 26,413.43 M3 15,242.88 M3
7. 30,000 M3 10,233.33 M3
8. 2,340 M3 130.87 M3
10. 132.86 M3 104.93 M3
11. 169.00 M3 47.26 M3
22. 52,032.72 M3 16,823.75 M3
Till today, I could not understand why I was removed from the
work before its completion and why I was not allowed to prepare the
bill upto the execution of the said work on 5.7.95. In reply to your
quires I am submitting this statement which is true to my knowledge
and beliefs.
Thanking You,
Yours faithfully.”
28
55. On 20th January, 1997, Mr. Asit Barik, Sub-Assistant Engineer who
was the in-charge of the work had written a letter to the Executive
Engineer wherein Mr. Barik has described as to why the supplementary
work cropped up and the copy of the said letter was also provided to the
plaintiff. The letter dated 20th January, 1997, is marked as Exhibit -“II”.
56. The plaintiff has relied upon the letter dated 16th October, 1996 of the
Superintending Engineer addressed to the Chief Engineer wherein the
Superintending Engineer has observed as follows :
“(3) Earthwork item did not include earthwork
for removal of 4 Nos. cross bundhs which were
made for necessity of work. This was agreed by
S.D.O., Egra Sub-Division. Contractor would get it.
(4) Shuttering work for construction of R.C.C.
retaining wall did not include any missing item.
Contractor would get it. This was agreed by S.D.O.,
Egra Sub-Divn.
(5) Carriage of sand was actually made from
licensed dealer of Contai. But as per contract sand
is to be procured from a distance of 300 M. After
inspection of site by me it was revealed that sand
was not available atleast 2 K.M. on either side of
the site. The agency submitted realty receipts
regarding allocation of sand from Contai pits and
so it deserves payment regarding extra distance
carriage of sand. There is a pit at Dapal about 4
K.M. from site, but it is not an authorised pit by
L.A.C.
(6) As per Clause – II of our tender agreement
payment is to be made to the contractor monthly.
But when the contractor requests for payment it
should be done. But inspite of several requests Exe.
Engineer did not make payment in time but once
only i.e. 1st & final bill by which agency was
unnecessarily harassed.
(7) The agency has stated that if we make the
due payment as per 51. Nos. 3 – 5, he will not go
29
for court of law and further Exe. Engineer is being
instructed to make payment accordingly after
obtaining a letter from M/s. B.B.M. Enterprises that
it would not go for further payment to court of law if
we pay the dues. The claim papers of the agency is
being returned herewith.”
Relying upon the said exhibits, the plaintiff submits that the
Superintending Engineer has admitted the claim of the plaintiff and
directed the Chief Engineer for release of the payment but the
defendants failed to release the amount which the plaintiff is entitled to.
57. The plaintiff has further relied upon the Exhibit “PP” dated 22nd
January, 1997 i.e. the letter issued by the Executive Engineer to the
Sub-Divisional Officer wherein it is mentioned that “it is observed that
the measurement of the earthwork and de-watering has subsequently
been cancelled and which has not been duly signed by the agency. Now,
the agency is raising objection against the cancellation of the
measurements.
The General practice is that the measurement originally taken and
accepted by the agency if subsequently found to be wrong then the
concern agency should be given notice for the joint measurement, but
from the record of the Measurement Book, it is found that the original
measurement has been cancelled arbitrarily.
Under the circumstances, you are asked to straight reasons within
three days of the receiving of this letter for such type of action on your
part and under whose instruction the same has been made if any”.
30
The said letter (Exhibit “OO”) was also forwarded to Mr. Asit Kumar
Barik, Sub Assistant Engineer with a direction to state under what
circumstances he has cancelled the measurement which has originally
been accepted by the agency and why the agency has not been given
any notice before cancelling of the original measurement.
58. The defendants relied upon a letter dated 17th February, 1997, issued
by Shri Sisir Kumar Adak, Sub-Divisional Officer to the Executive
Engineer wherein the Sub-Divisional Officer in reply to the letter dated
22nd January, 1997, has denied the claim of the plaintiff and admitted
that it would have been proper to call the contractor for a joint
measurement, subsequently to leave no scope for him to come up with a
claim for the cancelled measurement afterwards. In the said letter, the
Sub-Divisional Officer has also mentioned that the plaintiff was fully
aware of the cancellation which will be evident from that he has
received final payment without recording any claim.
It is pertinent to mention here that the defendants have relied
upon the said document during the argument but the same was neither
exhibited nor was proved and thus the document cannot be relied upon.
59. The claim of the plaintiff is that the plaintiff has sent the pre-receipt
through his man and/or agent for receipt of the payment but the
defendants have manipulated the said receipts by incorporating the
word 12,53,052=00 (………….. Twelve lakhs fifty three thousand and
fifty two only………………..) in full and final settlement of all demands.
31
60. The plaintiff has claimed total amount of Rs. 24,63,099.27 being the
work executed by the plaintiff out of which the defendants have paid an
amount of Rs. 12,53,052/-. Exhibit “CC” i.e. the money receipt which
reveals that the words “12,53,052=00 (………….. Twelve lakhs fifty three
thousand and fifty two only………………..) in full and final settlement of
all demands” is being added by different typewriter and different font (in
light print) of Exhibit “CC”.
61. By a letter dated 22nd September, 1995 being Exhibit “X”, the plaintiff
has submitted 1st and Final Bill of Rs. 24,65,099/-. On receipt of the
final bill, the Executive Engineer by a letter dated 27th September, 1995,
sent a reply to the plaintiff being Exhibit “Y” which reads as follows:
“Dear Sir,
With reference to above I am to submit herewith item wise replies
of your claim for 1st and 2nd Supplementary tender received in your
letter Nos. referred to above.
1ST SUPPLEMENTARY TENDER: Replies
Item No.1: Providing from work with Necessary provision for
“MOUL” timber plank not less this item has been made
than 38 mm thick and staging in the approved schedule
including hire and labour of work in item No.14
charge complete for slabs and
beams culvert cross drainage
works and sluice upto 3 metre
clear span including tripping
off and removing after
completion of works as
specification and direction.
Upto the height of 5.70 metres.
In connection with item No.14
Item No.2: Extra rate for staging work for No standing work was
original item No.13 of the necessary and was not
32schedule. done.
Means concreting.
Left side staging.
Right side staging
Item No.3: Sand filling to plinth and Local sand available at
foundation, watering and Depal at a distance of
ramming complete in layer not above 8 K.M. He has not
exceeding 25 cm. got permission for
Sand carriage from contai collecting sand from
Distance 31 K.M. Contai and might have it
at his own discretion.
However, extra rate as
per Western circle
Schedule may be allowed
for 8 K.M. distance.
Item No.4: Supplying fitting and fixing This item may be
wooden board by POLITHIN allowed. But you have
SHEET. submitted an exorbitant
amount, quantity of
Polythine supplied with
market rate along with
reasonable labour charge
will be allowed after
obtaining approval of
analysed rate.
2ND SUPPLEMENTARY TENDER:
Item No.1: Supplying fitting and This item has been
fixing wooden Board provided for in the
by Polithin. (Balance approved schedule item
quantity after 1st No.14. Excess work if
Supplementary done will be made in
tender). the excess statement.
Item No.2: Earthwork for This item is included in
removing 4 Nos. the item earthwork with
cross bundhs. necessary lead and lift
as provided in the
approved work
schedule.
Item No.3: Extra lead for Replay is same as in
removing earth from item No.2 above.
cross bundhs.
33
Item No.4: Extra lift for both Reply is same as in item
ways. No.2 above.
Yours faithfully
Executive Engineer,
Contai Irrigation Division,
Contai : : Midnapore."
62. On receipt of the said letter, the plaintiff has sent detail letter to the
Executive Engineer on 31st October, 1995, explaining all the work which
is marked as Exhibit “Z”. Pending 1st and Final Bill, the defendants
have released an amount of Rs. 5,54,000/-on 28th September, 1995
being Exhibit “AA”.
63. In paragraph 33 of the plaint, the plaintiff has made out a case that the
plaintiff has received an amount of Rs. 5,54,00/- out of the total
balance amount of Rs. 12,12,047/-. In paragraph 36 of the plaint, the
plaintiff has made out a case that as per usual practice on 30th March,
1996, the plaintiff through its agent sent an advance undated money
receipt to the Executive Engineer and on 4th April, 1996, the plaintiff
received a cheque dated 30th March, 1996 for Rs. 1,99,387/- and one
copy of the undated receipt of the plaintiff and after going through the
said receipt, the plaintiff came to know that the defendants have filled
up by another typewriter which reads as follows 12,53,052=00
(………….. Twelve lakhs fifty three thousand and fifty two
only………………..) in full and final settlement of all demands.
34
64. In reply to the statements of the plaintiff, the defendants in their written
statement have stated that the cheque amount was Rs. 2,00,146/- and
not Rs.1,99,387/-. In the written statement, the defendants have stated
that the total bill amount was Rs. 12,53,052/- out of which the plaintiff
has received an amount of Rs. 5,54,000/-, Rs. 2,00,146/-, Rs. 69,738/-
and Rs. 4,39,168/- was adjusted being the cost of materials received by
the plaintiff departmentally.
65. In Exhibit “OO”, the Superintending Engineer has admitted that the
plaintiff has executed an extra work and directed to submit a report.
The defendants though relied upon the report dated 17th February,
1997 wherein the Executive Engineer has submitted a report denying
the claim of the plaintiff but the said document is not exhibited. In
contrary thereto the letter dated 22nd January, 1997, issued by the
Executive Engineer to the Sub-Divisional Officer being Annexure “PP”
reveals that the Executive Engineer also admitted that the
measurement originally taken and accepted by the plaintiff and if
subsequently found to be wrong then the concern agency should be
given notice for the joint measurement but from the record of
measurement book, it is found that the original measurement book has
been cancelled arbitrarily. Mr. Asit Kumar Barik who was the Sub-
Divisional Officer at the time of the execution work of the petitioner in
his letter dated 17th January, 1997 being Annexure “HH” has stated
that he was forced to reduce the measurement as a result, he struck
out the original measurement on 16th September, 1995. The concern
35
Sub-Divisional Officer put his signature in the measurement book by
putting the date i.e. 16th September, 1995 though actually the Sub-
Divisional Officer has signed on 23rd May, 1995. The Exhibit “HH”
issued by Mr. Asit Kumar Barik dated 17th January, 1997 is marked as
Exhibit “HH” by the plaintiff without any objection from the defendants.
In the said letter, Mr. Barik has given the details of original
measurement recorded in the measurement book according to actual
background and reduced measurement which reads as follows:
“Now I give below a chart showing the original measurement
and reduced measurement in item wise:
ORIGINAL MEASUREMENT REDUCED MEASUREMENT.
RECORDE IN THE M.B.
ACCORDING TO ACTUAL
WORK DONE:
Item No.
5. 31,823.43 M3 21,727.81 M3
6. 26,413.43 M3 15,242.88 M3
7. 30,000 M3 10,233.33 M3
8. 2,340 M3 130.87 M3
10. 132.86 M3 104.93 M3
11. 169.00 M3 47.26 M3
22. 52,032.72 M3 16,823.75 M3.”
66. The plaintiff has claimed total amount of Rs. 24,63,099.27 being the
work executed by the plaintiff out of which the defendants have paid an
amount of Rs. 12,53,052/-. Exhibit “CC” i.e. the money receipt which
reveals that the words 12,53,052=00 (………….. Twelve lakhs fifty three
thousand and fifty two only………………..) in full and final settlement of
all demands is being added by different typewriter and different font (in
36
light print which are encircled with red pen) of Exhibit “CC”. It is crystal
clear that the receipt submitted by the plaintiff to receive an amount
from the defendants, the defendants have incorporated the words and
now taken plea that the plaintiff has received full and final amount.
67. As regard to the claim of the plaintiff with regard to the extra work
executed by the plaintiff is proved by the plaintiff from Exhibit “OO” i.e.
the letter of the Superintending Engineer and the
manipulation/reduction of the work in the measurement of the actual
work executed by the plaintiff is proved from the letter of Asit Kumar
Barik i.e. Exhibit “HH” which is being corroborated by the letter of the
Executive Engineer i.e. Exhibit “PP”.
68. Considering the above, this Court finds that the plaintiff has proved the
that the plaintiff has executed extra work but only to debar the plaintiff
to get the amount of the extra work executed by the plaintiff, the
defendants have arbitrarily canceled the original measurement book of
the work executed by the plaintiff and have reduced the work
subsequently in the measurement book. From the letter of the
Executive Engineer i.e. Exhibit “PP” also proved that if measurement
book is to be corrected, notice is to be given to the contractor but in the
present case, it is admitted by the defendants that the defendants have
not issued any notice to the plaintiff for correction of the measurement
book. From the letter of Asit Kumar Barik i.e. Exhibit “HH”, it is clear
that the measurement has been reduced in the back date.
37
69. In view of the above, the plaintiff is entitled to get an amount of the
extra work i.e. an amount of Rs. 12,12,047/- as the plaintiff has only
received an amount of Rs. 12,53,052/- out of the total amount of the
Rs. 24,63,099.27.
70. With regard to the claim of the plaintiff as damage of Rs. 10,00,000/-
and business loss of Rs. 10,00,000/-, this Court finds that the plaintiff
has not brought any evidence to show that the plaintiff has suffered
damages and business loss. This Court not inclined to grant any
compensation and business loss as claimed by the plaintiff.
71. In view of the above, the defendants are directed to pay an amount of
Rs. 12,12,047/- (Rupees Twelve Lakhs Twelve Thousand and Forty
Seven only) to the plaintiff being the extra work executed by the plaintiff
along with interest at the rate of 9% per annum from the date of filing of
the sui till the realization of the said amount.
72. C.S. (Com) No. 20 of 2024 (Old No. CS 404 of 1997) is disposed of.
Decree be drawn accordingly.
(Krishna Rao, J.)
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