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CASE NO.: Appeal (civil)  6885-86 of 2003

PETITIONER: K.C. Skaria                                                              

RESPONDENT: The Govt. of State of Kerala & Anr.                          

DATE OF JUDGMENT: 10/01/2006

BENCH: Arijit Pasayat & R V Raveendran

JUDGMENT: J U D G M E N T

R.V. RAVEENDRAN, J.

       This is a plaintiff’s appeal against the common judgment and  decree dated 12.11.2002 of the High Court of Kerala in Appeal Suit  No.481/1992 filed by the defendants, and Appeal Suit No.697/1991  filed by the plaintiff both against the judgment and decree dated  16.2.1991 in O.S. No.24/1990 on the file of the Subordinate Court,  Muvattupuzha.

2.      The plaint averments, in brief, were as follows :

2.1)    The second respondent (The Superintending Engineer, PWD,  Central Circle, Alwaye, Kerala) invited tenders for execution of a  construction work (Improvements to Thalakkad to Mularinad Road).  The appellant’s offer was accepted and an agreement dated  7.6.1982 was executed between the State of Kerala as the  employer (represented by second respondent), and the appellant  as the contractor. The estimated cost of the work was Rs.  11,28,595/- and the security deposit payable by the appellant was  Rs.22,600/-. The contract required the work to be completed within  18 months from the date of handing over of the site. As the site  was formally handed over on 17.8.982, the work had to be  completed on or before 16.2.1984. According to the appellant, on  account of delays, defaults and breaches committed by the  Department, he could not complete the work.

2.2)    The appellant submitted an on account  bill for Rs. 5,36,800/-  on 25.8.1984. It was not paid. In spite of the delay in payment and  other breaches by the department, the Appellant proceeded with  the work and completed substantial portion of the work. He also  sent various letters seeking payment. The Executive Engineer by  letters dated 4.7.1985 and 18.10.1985 informed the Chief Engineer  (B&R) that the appellant had executed work worth about Rs.10 lacs  and the delay in payment was affecting the progress of the work.  In spite of it, the payment was delayed and ultimately  Rs.4,04,628/- was belatedly released on 26.3.1986 after making  certain deductions (that is 10% towards errors in measurement,   Rs.40,463/- as retention amount etc.). No further payments were  made by the Department.  

2.3)    The appellant alleged the following breaches by the  respondents :-

(i)     Delay in issuing cement and steel required for the work which  was the Department’s responsibility (delay of 16 months in

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issuing cement and delay of 26 months in issuing steel); (ii)    Default in releasing further cement and MS rods thereby  preventing him from completing the work (two bridges); (iii)   Failure to finalise the formation level of the road, thereby  preventing him from metalling the road (delay in approving  initial levels tentatively being 9 months); (iv)    Delay in making on account payments for the work done as  required by the contract terms (delay of 19 months in  releasing the payment towards first part of bill); (v)     Requiring him to do more than 25% in excess of the agreed  quantities in regard to certain items of work;

       The appellant contended that in view of the expiry of the  contract period as also the extended period and the breaches  committed by the Department preventing him from completing the  work within the extended period, he was not liable to execute the  balance work and that the Department cannot foist any liability on  him in regard to any extra cost in getting the balance work  completed through another agency.  

The appellant filed O.S. No.691/1987 on the file of the Sub- ordinate Judge, Ernakulam (later transferred and renumbered as  O.S. No.24/1990 on the file of Sub-Judge, Moovattupuzha) against  the respondents, for the following reliefs:  

(i)     For recovery of Rs. 2 lacs towards the amount due for  work done, with interest at 18% per annum. (The  appellant also claimed proper accounting and prayed  that if the amount due for the work done was in excess  of  Rs.2 lacs estimated by him, he may be permitted to  pay additional court fee in regard to the actual amount  found due); (ii)    For recovery of Rs.1,000/- as damages and breach of  contract with interest at 18% per annum thereon;  (iii)   For a declaration that he was not liable to execute the  remaining part of the work and that the completion of  the remaining work  shall not be at his risk and cost,  and for a consequential direction to refund the entire  security deposit and retention money with interest at  18% per annum; (iv)    For costs and such other reliefs as the court may deem  fit to grant in the circumstances of the case.  

3.      The appellant valued the suit, for the purposes of court fee,  as follows, under the Kerala Court Fees and Suits Valuation Act,  1959 (’CF Act’ for short) and paid court fee accordingly :-

S. No. Relief

Valuation CF paid (a) Relief (i) under Section 35 of  CF Act Rs.2,00,000 Rs.19,980 (b) Relief (ii) under Section 22 of  C.F. Act Rs.    1,000 Rs.    100 (c) Relief (iii) under Section

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25(d)(ii) of the Act

Rs.       300 Rs.      30

Total

Rs.2,01,300 Rs.20,110

4.      The suit was resisted by the State, inter alia, on the ground  that there was no breach on its part. It was alleged that the work  consisted of (a) cross drainage works, (b) Earth-work for forming  the roadway, (c) protective works and (d) supply of materials like  stone, metal etc. The respondents stated  that cement was issued  on 9.11.1983 when the appellant made arrangements for cross  drainage works. It was also alleged that a part of steel rods were  issued on 26.10.1984 and balance as and when the work  progressed. It was contended that major items of work (like  earthwork for road formation, supply of stone/metal for soling and  metalling work) did not involve cement and steel and nothing  prevented the appellant from proceeding with those works pending  issue of cement and steel. It was also alleged that any delay in  supply of materials by the Department would entitle the appellant  only to extension of time and not to any extra payment. It was  alleged that time was extended from 16.8.1984 to 31.3.1985 and  again up to 31.12.1985 with fine of Rs.100/- and the appellant did  not complete the work in spite of such extensions and in spite of  final notice dated 11.11.1986. The respondents contended that  they would get the unfinished work completed at the risk and cost  of the appellant and recover any extra cost in completing the work  as also the cost of unreturned material from the security and  retention amounts and other amounts due to the appellant.

5.      During the pendency of the suit, the Department passed an  order dated 31.5.1989 terminating the contract at the risk and cost  of the appellant and ordering forfeiture of the security deposit  amount of Rs.22,600/-.

6.      The trial court framed the following issues :

1.      Whether the defendants committed breach of  contractual obligation and if so, what is the amount  due to the plaintiff as damages for breach of  contractual obligations?

2.      Whether the plaintiff is entitled to get the value of the  work done and, if so, what is the amount due to him ?

3.      Whether the plaintiff is entitled for a declaration that  the balance work shall not be arranged at the risk and  costs of the plaintiff and consequently directing the  defendants to release security deposit and retention  amount?

4.      Whether the plaintiff is entitled to get 18% interest per  annum on the amount due to him from the date of the  suit 16-7-1987 till the date of realization.

5.      Cost and other reliefs."

7.      After appreciating the oral and documentary evidence led by  the parties, the trial court by a judgment and decree dated

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16.2.1991 decreed the suit, in part. It held that as per the  measurements contained in the Measurement Book (Ex. B-2)  maintained by the Department, the total value of the work done by  the appellant was Rs.10,05,466.42 and as Rs.4,36,963.29 had  already been paid, the balance due for the work done was  Rs.5,68,487.13, and after deducting the cost of the material  supplied by the Department, the amount due to the appellant was  Rs. 5,33,560/-. The trial court also found that the Department  committed breach by causing delays on various counts, thereby  preventing the appellant from completing the work. The trial court  held that though the amount due towards the work done was  Rs.5,33,560/-, as the appellant had claimed only a sum of Rs.2 lacs  on that count and paid court fee thereon, the appellant was entitled  to a decree for Rs.2 lacs only towards value of work done. As a  consequence of its findings, the trial court decreed the suit against  the respondents as follows :-

(i)     A decree for Rs. 2 lacs towards the cost of the work  done with 12% interest per annum from the date of suit  till the date of decree and, thereafter, at 6% per annum  till the date of realization; (ii)    A decree for Rs.1,000/- as damages for breach of  contract with interest as above; (iii)   A declaration that the appellant was not liable to execute  the remaining part of the work and the execution of the  balance work shall not be at the risk and cost of the  appellant; and (iv)    A direction to the respondents to refund the security  deposit amount and retention money within six months  to the appellant.

8.      The appellant filed an appeal in A.S. No.697/1991 contending  that the suit ought to have been decreed for Rs.5,33,560/- which  was found due, instead of Rs.2,00,000/- (towards the value of the  work done) by permitting him to pay the deficit court fee   in  regard to the balance amount.

9.      The respondents also filed an appeal in A.S. No.481/1992,  being aggrieved by the reliefs granted by the trial court. The  respondents contended that the appellant, who was an  independent contractor, was not entitled to maintain a suit for  rendition of accounts and, therefore, the trial court ought to have  dismissed the suit in entirety, as not maintainable. It was also  contended that the trial court ought to have held that the appellant  was in breach and that there was no breach on the part of the  respondents.

10.     A Division Bench of the Kerala High Court by  a common  judgment dated 12.11.2002 dismissed the appellant’s appeal and  allowed the respondents’ appeal thereby dismissing the suit in  entirety. It held that a suit by an independent contractor for  rendition of accounts by the employer, was not maintainable and,  therefore, there  could not be a decree for Rs.2 lacs towards cost of  work done, or for any other relief. It also held that there was no  breach on the part of the Department and, consequently, the trial  court could not have granted a declaration that the Department  was not entitled to get the balance work executed at the risk and  cost of the appellant.  

11.     Feeling aggrieved, the appellant has filed these appeals by  special leave. On the contentions raised, the following points arise  for our consideration :

(i)     Whether the appellant as an independent

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contractor engaged by the State Government for  execution of construction work, is entitled to  maintain a suit for rendition of accounts by the  employer? (ii)    Even if the prayer for accounts was not  maintainable, whether the suit could have been  dismissed in entirety by the High Court? (iii)   Whether the respondents (employer) committed  breach of its obligations under the contract ? (iv)    To what amounts, if any, the appellant is entitled  to?  

Re : Point (i) :

12.     The relationship between the first respondent and the  appellant was that of an employer and an independent contractor  engaged to execute certain work in terms of the contract. The  contract was an item-rate contract and payment for the work done  had to be made by the employer to the contractor as per the  measurements recorded in the Measurement Book maintained by  the Department. It is also not in dispute that while the appellant as  the contractor would approximately know the quantum of work  done by him, the exact quantities for purpose of payment could be  ascertained by him only by actually measuring the work done or by  having access to the measurement book maintained by the  Department. In the circumstances, the question that arises for  consideration is whether the remedy of the appellant, engaged as  an independent contractor to execute a  construction work (in a  item-rate contract where payment is to be made as per the  measurements recorded in the measurement book maintained by  the employer) in the event of non-payment for the work done, is  only to file a suit for the cost of the work done quantifying the  amount due, or whether he could file a suit for rendition of  accounts against the employer with a further prayer for a decree  for the amount due.

13.     Order 21 Rule 13 CPC provides that in  administration suits, a  preliminary decree directing accounts can be made. Order 21 Rule  15 provides that in a suit for dissolution of partnership or taking of  partnership accounts, the court before passing a final decree may  pass a preliminary decree declaring the proportionate shares and  directing accounts to be taken. Order 21 Rule 16 provides that "in a  suit for an account of pecuniary transactions between a principal  and an agent, and in any other suit not hereinbefore provided for,  where it is necessary, in order to ascertain the amount of money  due to or from any party, that an account should be taken, the  court shall, before passing its final decree, pass a preliminary  decree directing such accounts to be taken as it thinks fit." We may  clarify that Order 20 Rule 16 does not create or confer any  substantive right to seek rendition of accounts in any particular  type of cases, nor in all types of cases. It merely refers to a rule of  procedure and would apply where there is an existing right to seek  rendition of accounts having regard to the relationship between the  parties.

14.     It is now well-settled that the right to claim rendition of  accounts is an unusual form of relief granted only in certain specific  cases and to be claimed when the relationship between the parties  is such that the rendition of accounts is the only relief which will  enable the plaintiff to satisfactorily assert his legal right [vide  Jowahar Singh v. Haria Mal (1899) 60 P.R. 1899, followed in  Gulam Qutab-ud-din Khan v. Mian Faiz Bakhsh (AIR 1925  Lahore 100), State of Jammu & Kashmir v. L. Tota Ram (AIR  1971 J&K 71), Triloki Nath Dhar v. Dharmarath Council (AIR  1975 JK 76)]. The right to seek rendition of accounts is

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recognized in law in administration suits for accounts of any  property and for its administration, suits by a partner of a firm for  dissolution of the partnership firm and accounts, suits by   beneficiary against trustee/s, suits by a member of the joint-family  against the Karta for partition and accounts, suits by a co-sharer  against other co-sharer/s who has/have received the profits of a  common property, suits by principal against an agent, and suits by  a minor against a person who has received the funds of the minor.

15.     Even where there is no specific provision for rendition of  accounts, courts have recognised an equitable right to claim  rendition of accounts. In Narandas Morardas Gajiwala v.  S.P.A.M. Papammal   (AIR 1967 SC 333), this Court considered  the maintainability of a suit by an agent against the principal  for  accounts. Negativing the contention that only a principal can sue  the agent for rendering proper accounts and not vice versa, (as  Section 213 of the Contract Act provided that an agent is bound to  render proper accounts to his principal on demand without a  corresponding provision in the Contract Act enabling the agent to  sue the principal for accounts), this Court held :  

"In our opinion, the statute is not exhaustive and the right of  the agent to sue the principal for accounts is an equitable right  arising under special circumstances and is not a statutory right.  ............. Though an agent has no statutory right for an  account from his principal, nevertheless there may be special  circumstances rendering it equitable that the principal should  account to the agent. Such a case may arise where all the  accounts are in the possession of the principal and the agent  does not possess accounts to enable him to determine his claim  for commission against his principal. The right of the agent may  also arise in an exceptional case where his remuneration  depends on the extent of dealings which are not known to him  or where he cannot be aware of the extent of the amount due  to him unless the accounts of his principal are gone into."

16.     To summarise, a suit for rendition of accounts can be  maintained only if a person suing has a right to receive an account  from the defendant. Such a right can either be (a)  created or  recognized under a statute; or (b) based on the fiduciary  relationship between the parties as in the case of a beneficiary and  a trustee, or (c)  claimed in equity when the relationship is such  that rendition of accounts is the only relief which will enable the  person seeking account to satisfactorily assert his legal right. Such  a right to seek accounts cannot be claimed as a matter of  convenience or on the ground of hardship  or on the ground that  the person suing did not know the exact amount due to him, as  that will open the floodgates for converting several types of money  claims into suits for accounts, to avoid payment of court fee at the  time of institution.  

17.     Let us now examine whether a contractor engaged to execute  a particular work, can file a suit for accounts against the employer  in regard to payment for the work done. Such a right is not created  or recognized by any statute. The independent contractor is not an  agent of the employer. Nor is the employer in the position of a  trustee with reference to the independent contractor. Can the claim  be supported in equity by stating that  where the relationship is  such that rendition of accounts is the only relief which will enable  the contractor to satisfactorily assert his legal right ? A contractor  who is engaged to execute a work, is expected to maintain his own  accounts. At all events, there is no bar for a contractor to keep an  account of the work done. Even where the contract between the  employer and independent contractor may provide for payment on  the basis of measurements to be recorded by the employer,

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nothing prevents the contractor from measuring the work done by  him and then suing for the value of the work done. The contractor  may also demand joint-measurements to determine the quantum  of work done. If the employer for some reason does not co-operate  or prevents the contractor from taking a physical measurements,  the contractor can seek appropriate legal remedy which will enable  him to take measurements or to secure the information from the  measurement book in the custody of the employer. Therefore,  either the fact that  the measurement book is maintained by the  employer, or the fact that the contractor does not possess the  exact measurements, will not entitle the contractor to file a suit for  rendition of accounts against the employer.

18.     In this case, the appellant could have either himself  measured the work done by him or secured the information from  the respondents. The appellant has neither made out a right under  a statute nor any fiduciary relationship nor any right in equity by  establishing that except by calling upon the defendants in the suit  to render accounts, it is not possible for him to get relief. The  appellant has sued for Rs.2 lakhs and paid court fee thereon.  Nothing prevented him from suing for Rs.5,33,000/-. In para 5 of  the plaint, he states that the total value of  work done by him was  Rs.10,00,000/-. He knew that he had been paid only Rs.4,04,628/- . He also knew the value of material supplied by the employer. In  the circumstances, the prayer for rendition of accounts is not  maintainable.

19.     The appellant next attempted to press into service Section  149 of CPC to contend that he ought to have been given an  opportunity to pay the deficit court fee on the total amount due for  the work done. Section 149 provides that where the whole or any  part of court fee prescribed for any document has not been paid,  the court may, in its discretion, at any stage, allow the person by  whom such fee is payable, to pay the whole or part as the case  may be, of such court fee, and upon such payment, the document  in respect of which such fee is payable, shall have the same force  and effect as if such court fee had been paid in the first instance.  Section 4 of the Court Fee Act bars the court from receiving the  plaint if it does not bear the proper court fee. Section 149 acts as  an exception to the said bar, and enables the court to permit the  plaintiff to pay the deficit court fee at a stage subsequent to the  filing of the suit and provides that such payment if permitted by the  court, shall have the same effect as if it had been paid in the first  instance. Interpreting Section 149, this Court in Mannan Lal v.   Chhotka Bibi (AIR 1971 SC 1374) held that Section 149 CPC  mitigates the rigour of Section 4 of the C.F. Act, and  the courts  should harmonise the provisions of the C.F. Act and the CPC by  reading Section 149 as a proviso to Section 4 of the C.F. Act, and  allowing the deficit to be made good within the period to be fixed  by it. This Court further held that if the deficit is made good, no  objection could be raised on the ground of bar of limitation, as  Section 149 specifically provides that the document is to have  validity with retrospective effect.  

20.     A careful reading of Section 149 shows that it would apply  only in respect of the court fee payable at the time of institution of  the suit. If the court fee due on the plaint when instituted, is not  paid wholly or partly by the person instituting the suit, the court in  its discretion, may allow him to pay the court fee or deficit court  fee within the period fixed by it. Section 149 has no application  where the court fee, due on the plaint as per the valuation of the  suit, is fully paid, but subsequently it is found that a larger amount  is due to the plaintiff. For example, if the plaintiff values the suit at  Rs.2 lacs and the court fee payable is Rs.20,000/- and the plaintiff  

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pays a court fee of Rs.10,000/-, on his request time for payment of  balance of Rs.10,000/- can be extended by the court at its  discretion under Section 149 CPC. But where the claim was Rs.2  lacs and full court fee on Rs.2 lacs was paid at the time of  institution of the suit, and during evidence it transpires that the  amount due to plaintiff is actually Rs.5 lacs and not Rs.2 lacs, the  question of permitting the plaintiff to pay deficit court fee at that  stage by calling in aid Section 149, does not arise as no court fee  becomes payable at that stage. Plaintiff can increase the claim only  by seeking amendment of the plaint and paying additional court fee  on the amended claim. In regard to such amended claim also,  Section 149 may be pressed into service. But then amendment  would depend on limitation and may not be permitted after the  period of limitation. Where there is no deficit in court fee at the  time of institution and when there is no amendment to plaint  increasing the suit claim, there is no occasion for pressing Section  149 into service in regard to court fee payable on plaints.

Re : Point No.(ii) :

21.     The High Court treated the suit as one for accounts. In view  of its finding that a suit for accounts by a contractor is not  maintainable, it held that the suit in entirety ought to be dismissed  as not maintainable.

22.     The plaint contains all averments necessary for the plaintiff to  sue for the value of the work done. He  estimated the amount due  towards work done at Rs.2 lakhs and paid court-fee on the said  Rs.2 lakhs. If the plaintiff-appellant has established that the work  could not be completed on account of the breaches on the part of  the employer, and also establish that the value of work done by  him exceeded Rs.2 lakhs, we find no reason why he should be  denied a decree for at least Rs.2 lakhs. Merely because the plaintiff  also chose to seek accounting, he cannot be non-suited. This is not  a case where the plaintiff had sued only for accounts, paying court  fee on a mere Rs.1,000/- under section 35 of the Court Fee Act.  The prayer in the suit is for recovery of Rs.2 lakhs towards the  value of the work done with an additional prayer for accounting and  several other reliefs. In fact, plaintiff did not even seek in the  prayer column, a decree for any higher amount, if the amount  found due on accounting was found to be more than Rs.2 lacs. If  the prayer in regard to accounting was found to be not tenable,  that prayer could not be granted. But nothing could come in the  way of plaintiff getting a decree for the amounts claimed towards  value of the work done for which he has paid the court fee, by  proving that such amount was due for work done and by proving  that he was not at breach. Having regard to the frame of the suit,  we are of the view that the High Court was not justified in  dismissing the suit as not maintainable, ignoring the other prayers.  The second point is answered accordingly.

Re : Point No.(iii) :

23.     The trial court after exhaustive reference to the evidence and  the rights and obligations of the parties under the contract,  recorded clear findings of fact that there was inordinate delay on  the part of the respondents in supplying steel and cement, in  finalizing the formation levels which was a condition precedent for  further progress of work, and in making on account payment for  the work done. It consequently held that the employer  (respondents) was at breach and the contractor was not at breach.  The High Court however reversed the said findings and held that

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the respondents were not in breach merely on the following  reasoning, not based on evidence: "There is definite contention by the defendants that  department had made all arrangements to supply the  departmental materials and that the departmental materials  were issued only according to the progress of the work at site  in order to safeguard the interest of the Government. ..... As  contended by the defendants, supply of departmental  materials would have become necessary, only if there was  progress in the work done by the plaintiff. The defendants  submit that departmental materials were issued only in  accordance with the progress of the work at site. On the basis  of the materials available on records it is not at all possible to  say that there was breach of contract by the defendants."

24.     The contract work even according to the respondents,  consisted of four parts, namely, (i) cross drainage work, (ii)  earthwork for forming the roadway, (iii) protective works and (iv)  supply of material like soling stone, metal etc. The cross-drainage  work required cement and steel and under the contract, it was for  the Department to issue those materials. The site was delivered on  17.8.1982 and the work had to be completed within 18 months i.e.  by 16.2.1984. The schedule prescribed for progress/executions  required the cross-drainage work to be carried out first. But,  strangely, the first batch of cement was issued only on 9.11.1983  and the first batch of steel was issued only on 26.10.1984. When  the period stipulated for completion was 18 months and if the first  supply of cement is made after 15 months and first steel supply  was made after 26 months, very little is required to conclude that  there was inordinate delay and consequential breach on the part of  the Department, in supplying the material. The question is about  the initial delay in supplying the cement and steel. The High Court  has only referred to subsequent progressive supply of steel and  cement and is strangely silent about the enormous delay in  commencing the supply of steel and cement. The evidence  discloses that the appellant had written several letters (Ex. A5  dated 13.10.1982, A3 dated 8.12.1982, A4 dated 6.4.1983, A6  dated 10.8.1983 and A7 dated 17.8.1983 among others)  requesting for issue of steel and cement and pointing out that he  had collected the materials like rubble, metal, sand etc. for cross- drainage work and unless the Department issues cement and MS  rods, he cannot start the cross-drainage work. In spite of it, issue  of cement was commenced only on 9.11.1983. The delay of 16  months in issuing cement and 26 months in issuing steel is clearly  established by oral and documentary evidence. The fact that after  the initial delay, steel and cement were progressively supplied will  not wipe out the breach on account of the initial delay in supply.

25.     The Department contended that even though there was delay  in supply of cement and steel, the contractor could have  commenced the earthwork for road formation and metalling work  which did not involve cement and steel. But the various letters  exhibited by the contractor (referred to above) show that the  cross-drainage and road work were inter-connected and that  though he had collected the material for cross-drainage work  immediately after the site was handed over to him, earthwork for  the road could not be completed until the cross-drainage work was  executed. Further, as per the schedule for progress of work, cross- drainage work had to be done first. Ignoring this evidence and  ignoring the findings by the trial court on the basis of the evidence,  the High Court has concluded that there was no delay on the part  of the Department by holding that the departmental material was  to be issued only in accordance with the progress of the work and  that the Department had progressively issued the material and,  therefore, there was no breach. But what has been lost sight of is

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the fact that there was an initial delay of as many as 16 months in  regard to issue of cement and 26 months in regard to issue of steel  and until cement and steel were issued, the contractor could not  start the cross drainage work and the cross-drainage work was  linked to completion of the earthwork.

26.     The contractor has also established by evidence that there  was inordinate delay on the part of the department in approving  the levels (approved only on 2.6.1983) in spite of requests in Ex.  A5/13.10.1982, Ex. A3/8.12.1982 and A4 dt. 6.4.1983 and that  until levels were approved, road formation work could not be  carried out. The contractor has also clearly established that there  was inordinate delay in making payment for the work done. The  first bill was submitted on 25.8.1984 for Rs.5,36,800/-. After  certain deductions, a sum of Rs.4,04,628/- towards the said bill  was released only on 26.3.1986 i.e. after 19 months. This delay  remains unexplained.  

27.     The trial court has examined the evidence in detail and has  recorded clear findings of fact about the delays and the breach  committed by the Department. The finding of the High Court  without consideration of the evidence cannot be sustained. We  therefore restore the finding of the trial court that respondents  committed breach of their obligations and the appellant was  justified in refusing to complete the work, and the consequential  finding that the respondents could not therefore recover the extra  cost in getting the work completed from the appellant.

Re : Point No. (iv) :

28.     It is not in dispute that as per the measurements recorded by  the Department (in Ex. B2), the value of the work done was Rs.  10,05,466.42 and the amount due in regard to the work done after  deducting the part payment and value of the material supplied, was  Rs.5,33,560/-. The plaintiff had estimated the amount due for work  done as Rs.2 lakhs and paid the court-fee therefor. He did not  amend the suit claim nor pay any additional court fee. The claim  for accounting has been rejected as not maintainable. Therefore,  the plaintiff is entitled only to a decree for Rs.2 lakhs towards the  value of the work done, even though he has established that the  amount due in that behalf was Rs.5,33,560/-.

29.     As the appellant has established breach by the respondents,  the award of Rs.1,000/- as damages for breach by the trial court is  also upheld. As a consequence of the finding that the breach is on  the part of the respondents and not the appellant, the trial court  was justified in giving a declaration that the respondents were   entitled to recover any extra cost involved in getting the work  completed from the appellant. But it could not have granted the  further relief of directing the respondents to refund the security  deposit amount and retention deposit amount, as the appellant had  neither quantified the said security deposit/retention deposit  nor  paid court fee thereon. Therefore, the decree granted by the trial  court, to the extent it directs refund of the security deposit and  retention amount, cannot be sustained. The fourth point is  answered accordingly.

Conclusion :

30.     In view of our aforesaid findings, we allow this appeal, in  part, set aside the order of the High Court and restore the decree  granted by the trial court for Rs.2 lakhs plus Rs.1,000/- with  interest thereon as per the decree of the trial court. The appellant

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will be entitled to costs on the amount decreed throughout.