RSA No. 3074 of 2009 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 3074 of 2009
Date of Decision: 20.8.2009
The State of Haryana and others ......Appellants
Versus
Wazir Singh (Contractor) .......Respondent
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri Kulvir Narwal, Additional AG, Haryana,
for the appellants.
HEMANT GUPTA, J. (Oral).
The defendants are in second appeal aggrieved against the
judgment and decree passed by the Courts below, whereby suit for
declaration challenging the forfeiture of performance security of
Rs.1,17,200/-, was decreed.
The plaintiff-respondent was granted contract for construction
of change of alignment of Jind Distributory No. 7 for RD 4000 to 8360 and
relinking at RD 23500 on existing alignment. It is the case of the defendants
in the written statement that even if it was not possible for the department to
make the entire site available to the contractor, the contractor should have
arranged his working programme in terms of Clause 11 of the Conditions of
Contract. Therefore, the plaintiff is not entitled to the declaration sought for.
RSA No. 3074 of 2009 (2)
Both the Courts have found that not only the site was not made
available, but even the drawings of `L’ Section were not finalised and were
in fact, changed thrice. Therefore, the defendants are not entitled to
forfeiture of the performance security.
Learned counsel for the appellants has vehemently argued that
even in the absence of handing over of the complete site, the plaintiff could
have started the construction work and having failed to do so, the plaintiff is
not entitled to the declaration sought for.
It is not the case of the defendants that some site was made
available on which the plaintiff could possibly start the work. In fact, not
only the site was not made available, but even the drawings of the work
were not finalized. In view of the said situation, forfeiture of the
performance security is wholly unjustified and not sustainable in the eyes of
law, as has been rightly found by the Courts below.
Consequently, I do not find any patent illegality or material
irregularity in the finding recorded or that the finding recorded gives rise to
any substantial question of law in the present second appeal.
Hence, the present appeal is dismissed.
(HEMANT GUPTA)
JUDGE
20.8.2009
ds