VENKATESH CONSTRUCTION COMPNAYversusKARNATAKA VIDYUTH KARKHANE LIMITED (KAVIKA)

                         [2016] 1S.C.R.511



              VENKATESH CONSTRUCTION COMPNAY                             A
                                  v.
  KARNATAKA VIDYUTH KARKHANE LIMITED (KAVIKA)
                (Civil Appeal Nos.461-462 OF 2016)
                        JANUARY 20, 2016                                 B

[T.S. THAKUR, CJI., A.K. SIKRI AND R. BANUMATHI, JJ.)
      Contract - Execution of Work Contract - Suit by contractor
making a claim for Rs. 30 lakhs for the work already completed,
for extra work, stocking of materials etc. - Trial Court decreed the
suit and directed the defendant to pay Rs. 3,23,0001- to the plaintiff
                                                                         c
with 12% per annum interest - Cross appeals - High Court set
aside the decree - On appeal, held: Findings of trial court need not
be interfered with by the appellaie court unless they are erroneous
or reached ignoring the evidence on record - bi the present case
findings of trial court and the amount awarded was based -on             D
evidence and material on record - The High Court, without
considering oral or documentary evidence erroneously interfered
with the factual findings of trial court - In view of the facts of the
case, rate of interest is reduced to 6% per annum.
        Allowing the appeal, the Court                                   E
      HELD: 1. .The Appellate Court may uot interfore with the
finding of the trial court unless the finding recorded by the trial
court is erroneous or the trial court ignored the evidence on
record. The amount awarded by the trial court under various
heads was based on evidence and material on record. The High             F
Court reversed the decree passed by the trial court without
discussing oral and documentary evidence and several grounds
raised before the trial court. The High Court veered away from
themainissueandwenton to.elaborate on the law ofarbitration
and the mode of setting aside the arbitral award under Section
34 of the Arbitration Act, which was n'ilf warranted. The High           G
Court erred in interfering with the factual findings recorded by
the trial court. [Paras 15 and 16) [519-B-D)
      2. The defendant has not adduced any evidence to
discredit the testimony of PWs l and 3 that extra work was
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                                 511
512                  SUPREME COURT REPORTS                [2016] I S.C.R.



 A    required to be done on account of seepage of water and soil
      caving in and widening and deepening the trench. In so far as
      the direction of the respondent to stop the work is concerned,
      on appreciation of evidence, trial court rightly held that the
      respondent asked the appellant to stop the running work for
      want of revised design. So far as the claim of the appellant that it
 B
      suffered loss due to loss of stock of material, PWs 1 and 3 have
      stated that they have stocked the ·material of worth about
      rupees six lakhs at the work site. Even though the appellant
      has claimed rupees six lakhs on account of loss of the material
      stocked, as the appellant had not produced any bill relating to
 c    purchase of material nor produced authentic trip sheet, the
      trial court rightly awarded rupees one lakh only on account of
      loss of building material. (Paras 11, 12, 13 and 15([517-B-C, H;
      518-F-H; 519-A]
             3. The High Court took note of clause 11 of the
 D    contract which states that the contractor is not authorized to
      do any extra work or make any alteration without the previous
      consent in writing of the respondent. The respondent has not
      raised the plea relying upon clause 11 of the contract. Further,
      by perusal of Ex.P2 dated 20.12.1991, a letter addressed by the
      appellant to the respondent informing the respondent about the
 E    extra work which needs to be done and the fact that PW-4 was
      engaged hy the respondent to prepare the new design for the
      work, it is evident that the respondent was aware of the fact of
      the change in the nature of work and that there is alteration in
      the work done by the appellant. When the evidence and material
  F
       clearly depict the change of nature of work involved and when
      the extra work to be done was also admitted by DW-1, parties
       cannot be expected to go for a revised agreement/contract,
      and specially when the work was to be completed within a specified
       time-frame. The High Court was not right in placing reliance
       upon clause 11 of the contract to reverse the findings of fact
 G     recorded by the trial court. [Para 14] [518-A-J<']
           4. In the facts and circumstances of the case and having
      regard to the fact that the matter is pending for over two decades
      and in the interest of justice, it is appropriate that the interest
      of 12% per annum awarded by the trial court is reduced to 6%
 H    per annum. [Para 17] [519-F]
 VENKATESH CONSTRUCTION COMPNAYv. KARNATAKA VIDYUTH                      513
              KARKHANE LIMITED (KAVIKA)

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 461-                A
462 of2016
     From the Judgment and Order dated 15.06.2010 of the High Court
ofKarnataka at Bangalore in RFA Nos. 1051 and 1076 of2003 (MON)
      Partha Sil, Tavish B. Prasad for the Appellant.
                                                                         B
     P. Vishwanatha Shetty, E. C. Vidhya Sagar, Jennifer John, B. K.
Gautam, Subhash Chandra Sagar, for the Respondent.
      The Judgment of the Court was delivered by
      R. BANUMATHI, J. I. Leave granted.
       2. These appeals assail the judgment dated 15.06.2010 in R.F.A.
                                                                         c
Nos. I 051 of 2003 and 1076 of 2003, by which the High Court of
Kamataka vide the common impugned judgment reversed the judgment
of the trial court and allowed the appeal of respondent-defendant.
While doing so, the High Court dismissed the cross-appeal preferred by
the appellant-plaintiff.                                                 D
        3. Briefly stated case of. the appellant-plaintiff is that
appellant-company is engaged in construction of dams and other civil
works and registered as a civil contractor for the Government of
Karnataka amongst others. The respondent-defendant invited tender on
17.08 . 1991 'for constructing a compound 11•all along the boundw:v      E
line of Kavika and also for constructing underground sump. shed
to store usefal laminations and also core assembly shop for these
works". The appellant responded to the said tender and appellant's
tender was accepted by the respondent. On 12.02.1992, a
contract was executed between the appellant and the respondent
                                                                         F
incorporati11g the terms and conditions and the cost of work was
estiniated at Rs. I 0,86,200/-. The appellant had quoted the rates on
the premise that the earth work for the foundation was to the depth of
1.5 metres and average width of 4.25 metres. However, after the work
commenced, even while digging earth to one foot depth, it was noticed
that soil was caving in and there was seepage of water from              G
Vrushabhavathi river. The appellant was instructed by the respondent's
engineers to dig earth up to four metres depth until hard soil bed is
reached. Accordingly, in order to make a trench of four metres
depth, appellant had to excavate earth commencing from width of six
metres at the ground level and the entire nature of work changed and
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514                    SUPREME COURT REPORTS                    [2016] 1 S.C.R.


 A appellant had to incur additional expenses on account of the changed
      plan. The changed measurements were verified by the engineers
      nominated by the respondent and a payment of Rs.4,50,000/- was
      made in two running bills. The respondent then asked the appellant to
      stop the work till the new designs are given by the respondent which
      was not forthcoming. Vide several letters appellant sought permission
 B
      for continuation of the work, but, there was no response from the
      respondent. Finally, after issuing legal notice dated 15.03.1993, for which
      no reply was given by the respondent. The appellant filed a civil suit
      being Original Suit No.11037of1993 in the court ofAdditional City Civil
      Judge, Bangalore, making a claim of rupees thirty lakhs under various
 c    heads, iuteralia, on the work already completed, towards the extra
      earth work, stocking of materials and also Iiquidated damages and others.
             4. Admitting the execution of the contract dated 12.02.1992,
      the respondent filed a written statement contending that the construction
      of the compound wall was in accordance with the estimate and the
 D    question of the respondent's directing the appellant to stop the ongoing
      work for want of fresh design did not. arise. Respondent averred
      that the appellant unilaterally stopped the work and there is no question
      of defendant making further payment. It was averred that no 'extra
      work was done by the appellant and the respondent was not liable
      to pay any amount either towards the damages or towards the alleged
 E    loss sustained by the appellant.
              5. On the above pleadings, trial court framed seven issues.
      To subst~ntiate the claim, appellant-plaintiff examined four witnesses
      and produced thirty three documents. On behalf of respondent-
      defendant, DW-1- Jagadeesh Kumar-Deputy Manager was examined
 F    and five documents were produced. Upon consideration of evidence
      adduced by the parties, the first three issues were answered in favour
      of the appellant-plaintiff viz.: (i) appellant's claim as to extra work;
      (ii) respondent's direction to stop the running work for want ofrevised
      design a'1d (iii) due to stoppage of work side embankment began to
 G    fall in the trench due to the seepage of water and involving double
      work for the appellant-plaintiff to remove the fallen loose earth. Taking
      note of the factthat the respondent had paid only a sum of Rs.4,36,575/
      -to the appellant out of the assessed value ofRs.5,82, I 00/-, trial court
      calculated the balance of Rs.1,45,525/- as the balance amount payable
      in respect of completed portion of the work. On the value of building
 H
  VENKATESH CONSTRUCTION COMPNAYv. KARNATAKA VIDYUTH                              515
      KARKHANE LIMITED(KAVIKA) [R. BANUMATHl, J.l

material stock, trial court awarded Rs.1,00,000/- as against the                  A
appellant's claim of Rs.6,00,000/-. Trial court decreed the suit in
respect of extra earth work, embankment work and other heads and
directed the defendant to pay in all a sum of Rs.3,23,000/- to the
appellant with proportionate cost and interest on the said amount at
12% per annum from the date of the suit till the date of realization.
                                                                                  B
        6. Being aggrieved, respondent as well as the appellant
preferred appeals before the High Court and both the appeals were
heard together and disposed of by the impugned judgment. Referring
to the contract, the High Court held that the written contract governs
the terms between the parties and any variation thereof ought to be in
terms of the provisions of clause 11 of the contract and the appellant            c
having not gone through the procedure envisaged under clause 11, the
appellant cannot putforth a claim for a higher payment on the
premise that it has executed some extra work over and above the
stipulated quantity of the work. The High Court reversed the judgment
of the trial court observing that the trial court acted more like an arbitrator   D
in examining the suit claim and that the trial court erred in passing the
decree in favour of the appellant-plaintiff for a sum ofRs.3,23,000/
- with interest and proportionate cost.
        7. Learned counsel for the appellant Mr. Partha Sil has contended
that the High Court failed to appreciate that the change in work                  E
which materially changed the nature of intended work mentioned in
the tender document which was admitted by DW-1-Jagadeesh Kumar
during trial. It was further submitted that the High Court erred in·
ignoring the evidence adduced by the appellant which clearly establish
that the respondent directed the appellant to stop the work resulting in
doub!e work due to soil caving in trenches causing severe financial               F
loss and hardship to the appellant. It was submitted that upon
appreciation of evidence when the trial court recorded findings of
fact, the High Court was not right in reversing the same.
       8. Per contra, learned Senior Counsel for the respondent Mr.
P. Vishwanatha Shetty submitted that appellant was appointed to                   G
complete the given work as per the terms of the contract and it was
the duty of the appellant to collect the relevant information before
making an offer and the appellant was not justified in making an
exaggerated claim of rupees thirty lakhs which is thrice the estimated
cost .of the work. It was submitted that the appellant failed to prove
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516                   SUPREME COURT REPORTS                   [2016] I S.C.R.


 A    that he.had purchased material and they were brought to the site and
      there is no acceptable evidence to show that the appellant had stored
      large quantities of material in the site. It was submitted that the plea
      of the appellant that he was orally asked to stop the work and to await
      revised design is totally baseless and the High Court rightly reversed
      the judgment of the trial court.
 B
            9. We have carefully considered the rival contention and perused
      the impugned judgment and also the judgment of the trial court and
      other material on record.
          I 0. PW-1-Venkatesh, who is the proprietor of the appellant-
 c company stated that the alignment of compound wall to be constructed
   is in line with the existing flow of water from the river and that
   excavation for the compound wall was done in the river itself and
   when the work commenced, water started collecting in the trenches
   and the 1Jlaintiff had to dewater the same simulta~ously. PW-I
   further s~ated that the appellam. requested the respondent to consider
 D the m.atter and accord sanction for extra items namely, making
   temporary drain, dewatering work and that the appellant had to do
   extra work for removal ofloose earth and 'this caused double work for
   the appellant. PW-3-Hanumegowda, working as a supervisor under
   the appellant corroborated the version of PW" I and stated that while
 E doing the foundation work, seepage water from river flooded in and
   collected in trenches and the appellant had to do extra work in dewatering
   and removal of loose earth. PW-3 further stated that as per the estimate,
   depth of the earth excavation for the foundation work was only four
   feet and while digging the trenches it was found that the soil was
   loose and that the engineers of the respondent told the appellant to
 F dig the earth to a further depth till hard soil bed is reached and on this
   score also, the appellant had to do extra work. The version of PWs I
   and 3 is fartified by letter dated 06.05.1992 (Ex. P4) sent by the appellant
   to the respondent stating that there was seepage of water in the trench
   and that embankment had fallen in the trench and that the appellant has
 G to do extra work in dewatering and removing the loose soil lnspite of
   repeated letters (Exs. P4 and PS), there was no response from the
   respondent.
             11. D~-Jagadeesh Kumar working as Deputy Manager with
      the respondent had stated that the parties were not aware of the soil
 H    strength at the time of entrustrnent of the work to . the appellant.
     VENKATESH CONSTRUCTION COMPNAYv. KARNATAKA VIDYUTH                          517
         KARKHANE LIMITED (KAVIKAj [R. BANUMATHI, J. l

   Howevoc during cross-examination, DW-1 admitted that before                   A
   commencement of work, both parties were unaware of nature of
   different strata of soil. He also stated that in case soil testing had been
   done before, the records would have been available with the
   respondent. .But no such record was produced by. the respondent ..
   Be it noted that the defendant has not adduced any evidence to discredit
   the testimony of PWs 1 and 3 that extra work was required to be done
   on account ofseepage of water and soil caving in and widening and
   deepening the-trench. On appreciation of evidence of PWs I and 3 and
   other documentary evidence, the trial court recorded the fin\lings of
   fact that the appellant had to do extra work incurring additional
   expenditure.                                   ·                              c
           12. In so far as the direction of the respondent to stop. the work,
    PW-I stated that during the first week of April, 1992 officials of the
    respondent had asked the appellant to stop the work for getting the
    design from the architect on account of seepage of water. PW-2-
    Raghavendra Rao working as CivifEngineer in the appellant company,           D
    has also corroborated the version of PW- I and stated that the respondent
    askeC: the appellant to stop the work and that the work could be
    resumed later. Though DW-1 stated that the defendant did not issue
  ·any letter ~o the plaintiff complaining against the stopping of work, he
    also stated that the plaintiff was orally told about the same. By perusal
   ·of various letters, it is seen that inspite of number of letters by the      E
    appellant seeking permission to continue the work, there was no response
    from the respondent. Absence of any response on the part of the
    respc;ndent, only indicate~ that the respondent- was aware of the
    change of nature of work.
           · 13. PW4-Naresh Kumar-architect had stated about his visit to        F
     the work site at the ·request of,the respondent for preparing the design
     after the masonry wall for the length of hundred metres was over and
     that he gave the revised design; and PW-4 estimated the cost of the
   · work as per the revised design at rupees twenty lakhs. PW-4 was
   · engaged to prepare the design suitable to the soil strength only because    G
     of the chapge in the nature .:of the w.ork. OtherWise the need for
     engaging PW-4 for preparing new design would not have arisen if the
     earlier design WOl!ld. have been suitable. On appreciation of eyidence,
     trial court rightly answered issue No.2 in. favour of ihe appellant that
     the respondent asked the appellant to sfop the ru~ning work for want
~ - ofrevised design.         ·                  ·                               H.
518                    SUPREME COURT REPORTS                   [2016] I S.C.R.


 A            14. The High Court took note of clause 11 of the contract
      dated 12.02.1992 which states that the contractor is not authorized to
      do any extra work or make any alteration without the previous consent
      in writing of the respondent. High Court set aside the findings recorded
      by the trial court holding that the parties are governed by the terms of
      the written contract and any variation with the terms of the agreement
 B
      was required to be done strictly adhering to clause 11 of the contract.
      While saying so, the High Court brushed aside the admission by DW-1
      that extra work was done by the appellant and the High Court was not
      right in ignoring the same to hold that the admission ofDW-1 cannot
      have the effect on the contractual obligation of the parties. It is to be
 c    pointed out that the respondent has not raised the plea relying upon
      clause I I of the contract. Further, by perusal ofEx.P2 dated 20. 12. I 991,
      a letter addressed by the appellant to the respondent informing the
      respondent about the extra work which needs to be done and the fact .
      that PW-4 was engaged by the respondent to prepare the new design
      for the work, it is evident that the respondent was aware of the fact of
 D
      the change in the nature of work and that there is alteration in the
      work done by the appellant. When the evidence and material clearly
      depict the change of nature of work involved and when the extra work
      to be done was also admitted by DW-1, parties cannot be expected to
      go for a revised agreement/contract. Moreover, having regard to the
 E    fact that the work was to be completed within a specified time-frame,
      the parties cannot be expected to go for a second round of negotiation
      and reframe the terms and conditions of the work. While so, the High
      Court was not right in placing reliance upon clause I I of the contract
      to reverse the findings of fact recorded by the trial court.
 F            I 5. So far as the claim of the appellant that it suffered loss due
      to loss of stock of material, PWs I and 3 have stated that they have
      stocked the material of worth about rupees six Jakhs at the work
      site. The appellant also produced several letters (Exs. PS, P6 and P7)
      by which the appellant has informed the respondent that there was no
      progress in the work and tlia.t the building material are. lying waste.
 G    Apart from these letters, the appellant has also produced photographs
      (Exs. Pl 8 to P28) to substantiate their claim that the building material
      like bricks, size stones and other materials were stocked at the work
      site. Even though the appellant has claimed rupees six lakhs on account
      of loss of the material stocked, as the appellant had not produced any
 H    bill relating to purchase of material nor produced authentic trip sheet,
  VENKATESH CONSTRUCTION COMPNAYv. KARNATAKA VIDYUTH                            519
        KARKHANE LIMITED(KAVJKA) [R. BANUMATHI, J.l

 the trial court rightly awarded rupees one lakh only on account of loss        A
 of building material. As noticed earlier, based on the evidence of PWs
· I and 3 and other documents, the trial court has awarded amount on
 various other heads viz., the amount payable in respect of:- (i) extra
  earth work; (ii) embankment work; (iii) extra soiling work; (iv) extra
  bed concrete work and (v) extra stone masonry work. The amount
                                                                                B
  so awarded by the trial court under various heads is based on evidence
  and material on record.
        I 6. The Appellate Court may not interfere with the finding of the
trial court unless the finding recorded by the trial court is erroneous or
the trial court ignored the evidence on record. The High Court reversed
the decree passed by the trial court without discussing oral and
                                                                                C·
documentary evidence and several grounds raised before the trial court.
The High Court veered away from the main issue and went on to
elaborate on the law of arbitration and the mode of setting aside the
arbitral award under Section 34 of the Arbitration Act, which in our
view, was not warranted. Without considering the oral and documentary           D
evidence, the High Court erred in interfering with the factual findings
recorded by the trial court and the impugned judgment is liable to be
set aside.
        17. Trial court directed the respondentto pay a sum ofRs.3,23,000/
 - to the appellant with interest at the rate of 12% per annum from the         E
 date of suit till the date of realization. To award interest from the date
 of suit to date of decree and from the date of decree till the date of
 realization is entirely discretionary. The terms of the contract do not
 specify any" rate of interest. In the facts and circumstances of the
 case and having regard to the fact that the matter is pending for over
 two decades and ·in the interest of justice, it is appropriate that the        F
 interest of 12% per annum awarded by the trial court is reduced tci 6%
 per annum.
        18. In the result, the impugned judgment is set aside and the appeals
 are allowed. The judgment and decree passed by the trial court is
 restored with the modification of reduction of interest at 6% per annum        G
 from the date of the suit till the date of realization. In the facts
 and circumstances of the present case, no order as to costs in these
 appeals.
 Kalpana K Tripathy
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