9911796707
TMI Blog2000 (3) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... ement, the time for completion of the above work as two months from the date of handing over site. According to the petitioner, the site was handed over only on 5-5-1987. As per clause 4 of the agreement, time was the essence of the contract and petitioner had to complete 60% of the work during the first month and 100% in the second month. Work had to be completed as per the Schedule to the agreement. 3. Petitioner submits that for Initial work as per item 2 of the schedule, 178 bags of cement was required, which was not supplied by the second respondent. According to him, as per clause 10 of conditions of contract, when an estimate provides for use of any special description of materials, the same had to be supplied from the Execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the second respondent has no power to fix the liability in case of breach of contract. Counsel submitted that only after determining the liability, respondents could have proceeded to recover the amount. Counsel submitted that petitioner had not committed any breach of contract, and work could not be completed due to the fault of the department. In any view of the matter, counsel submitted that second respondent cannot resolve the dispute since he is a party to the contract. Counsel referred to the decision of the Supreme Court in State of Karnatakav. Shree Rameshwara Rice Mills, Thirthahalli, AIR 1987 SC 1359. Reference was also made to the decisions of this Court in Latheef v. Superintending Engineer, ILR (1993) 2 Kerala 426: V. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rendered himself liable to damages amounting to the whole of his security deposit, the Executive Engineer shall have power either to rescind the contract altogether or to have the work completed without further notice at the contractor's risk or expenses as he may deem best suited to the interest of the Government and the contractor shall have no claim to compensation for any loss that may accrue from any materials he may have collected or engagements he may have entered into, on account of the work and in the latter case the Executive Engineer shall have power to deduct whatever amount may be expended on the completion of the work from any sums that may be due or become due from the Government to the contractor on account of this or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny loss to Government results, the same will be recovered from him as arrears of revenue, but should it be a saving to Government, the original contractor shall have no claim whatever to the difference. Recoveries on this or any other account will be made from the sum that may be due to the contractor on this or any other subsisting contracts or under the Revenue Recovery Act, or otherwise the Government may decide. Note :-- 1. If the amount of contract does not exceed ₹ 5 lakhs, the amount of security will be 4%. If the amount of contract exceeds ₹ 5 lakhs the amount of security will be 2 per cent subject to a minimum of ₹ 20,000/-. (2) Investment in Treasury Savings Bank will alone be treated as accepta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they never wanted the dispute to be referred to an arbitrator, which is evident from the agreement itself. In fact arbitration clause was scored off from the agreement on consent of parties. Agreement stated that in case of dispute, the matter need not be referred to an arbitrator. Learned Government Pleader submitted since the arbitration clause has already been deleted on consent of parties. second respondent has got power on the basis of above mentioned clauses to determine the liability since petitioner committed breach. It is difficult to accept the contention of learned Government Pleader. Evidently, second respondent is a party to the agreement. When there is a breach of contract, party to the contract cannot determine as to who has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use. House of Lords in Dimes v. Grand Junction Canal Co., (1852) 3 HL Cas 759 held that decrees of Lord Cottenham, L.C. in favour of the canal company were voidable and must be reversed on the ground that when he made the decrees he was a shareholder of the company and this fact was unknown to the other parties to the suit. It is of utmost importance, said Lord Campbell, that the maxim that no man is to be a Judge in his own cause should be held sacred. This principle was reiterated in R. v. Barnsley MBC. (1976) 3 All ER 452 and in Herring v. Templeman, (1973) 3 All ER 569. 11. In view of the abovementioned judicial pronouncements, I am of the view that even if, parties have agreed that in case of dispute, the matter shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
