STATE OF GUJARATversusDAHYABHAI ZAVERBHAI

                         STATE OF GUJARAT                                      A
                                 v.
                       DAHYABHAIZAVERBHAI

                           FEBRUARY 24, 1997

             [K. RAMASWAMY AND G.T. NANAVATI, J.1.J                            B

        Contract :

        Rescission of Contract-Forfeiture of secwity deposit-Held, was per-
! ectly valid as the Contractor had abandoned execution of contract work in C
spite of opportunity having been given to him to complete the work.

        Mis. Hind Construction Contractors v. State of Maharashtra, A.l.R.
(1979) SC 720, held inapplicable.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1821 of                 D
1997.

     From the Judgment and Order dated 21.8.95 of the Gujarat High
Court in F.A. No. 3875 of 1995.

        Adhyaru Yashank Pravin, H. Wahi and N. Mukherjee for the Appel-        E
Iant

        KL. Janjani for the Respondent.

        The following Order of the Court was delivered :

        Delay condoned.
                                                                               F

        Leave granted. We have heard learned counsel on both sides.

     This appeal by special leave arises from the judgment of the Gujarat
High Court, dated August 21, 1995 passed in First Appeal No. 3875/95.          G
      Admittedly, the respondent-contractor had entered into an agree-
ment No. B-1/17 of 1981-82 to complete the work of protective measures
for the road bridge across river Ambica. The appellant had issued the work
order on June 3, 1981. It is true that there was a delay in handing over the
work sheet and the specifications. But the trial Court after considering the   H
                                     469
    470                  SUPREME COURT REPORTS                   [1997] 2 S.C.R.

A entire evidence had noted its finding thus :
            "In the present ease the land on which the construction work was
            required to be made was a land of the Government and not of
            private party or private owner, so there was no hurdle in the
            construction work of the plaintiff but the plaintiff himself has left
B           the construction and hence, in the present case, only the plaintiff
            can be held a person who has· revoked the contract. Before revok-
            ing the contract, the plaintiff was given sufficient time and
            reasonable opportunity to complete the work but the plaintiff has
            not done anything to complete the work and left the work and the
c           site so we have no option, the deft/Department to take the decision
            for revocation of the contract."

         In view of the above finding, the inevitable conclusion is that the
    respondent had abandoned the execution of the work in spi'4i of the
    opportunity having been given to him to complete the work. ci~use 3 of
D   the Contract reads as under :

             "Clause-3 : In any case, in which under any clause or clauses of
             this contract, the contractor shall have rendered himself liable to
             pay compensation amounting to the whole of his security deposit
E            (whether paid in the sum or deducted by instalments) or in the
             case of abandonment of the work owing to serious illness or death
             of the contractor or any othe·r cause, the Executive Engineer, on
             behalf of the Government of Gujarat shall have power :-

             (a) to rescind the contract (of which recession notice in writing to
F            the Contractor under the hand of the Executive Engineer shall be
             conclusive evidence) and in that case the security deposit of the
             Contractor shall stand forfeited and be absolutely at the disposal
             of Government.

                That in view of this express provision the Hon'ble High Court
G            erred in holding that the petitioner/State is not entitled to forfei-
             ture the deposit."

           A reading thereof would clearly indicate that in any case, under any
     clause or clauses of the contract, the contractor would. have rendered
H    himself liable to pay compensation amounting to the whole of his security
                          STATE v. DAHYABHAI                              471

whether paid in the sum or deducted by instalments; in the case of               A
abandonment of the work owning to serious illness or death of the contrac-
tor or a11y other cause, the Executive Engineer is empowered to have the
contract rescinded; in that case the security deposit of the contractor shall
stand forfeited and be absolutely at the disposal of the Government.· In
consequence, forfeiture of the security deposit, on account of abandonment       B
of the work by the appellant, was perfectly valid. The High Court, there-
fore, was not right in directing the appellant to refund the security deposit.
Learned counsel for the respondents contends that time was not the
essence of the contract, and therefore, the recession of the contract was
not for valid reason. We are, however, not on the validity of the recession
of the contract on the ground of time being the essence of contract but on       C·
the question whether the respondent had abandoned the contract or not.
The question in that backdrop arises : whether the recession of the contract
was correct in law? In view of the above facts, the action was legal. In that
perspective, the ratio in Mis. Hind Construction Contractors v. State of
Maharashtra,A.I.R. (1979) SC 720 has no relevance. Therein, the contract         D
was not rescinded. Work was executed after the extended time and the
claims were made before the Arbitrator for the work done during the
extended time. Therein, the contention was raised that time was essence
of the contract. Respondent and the contractor having not completed the
work within the schedule time, he was not entitled to the amount under
the award. In that contract, this Court had held that time was not essence       E
of the contract. That question, however, does not arise in this case for the
reason that the respondent had abandoned the contract.

       The appeal is accordingly allowed. No costs.

R.P.                                                        Appeal allowed.      F