Sathish Ninan, J.

1. The decree for money is under challenge in this appeal by the defendants.

2. The defendants issued Ext.B3 notice inviting tender for construction of MVIP Kuravilangad distributory from chainage 6400 metres to 7550 metres. The plaintiff was the successful tenderer. Ext.B1 is the agreement dated 05.10.2007, entered into between the parties, with regard to the work. As per the agreement, the work was to commence on 08.10.2007, and was to be completed before 07.10.2008. The plaintiff commenced the work. However, there was obstruction from the local residents against blasting of rocks. Such activity was necessary for carrying out the work in question. Due to such obstruction, the hard rock could not be removed by blasting and had to be carried out manually. This resulted in high labour charges and also delay in completion. The work was completed on 31.07.2009. The suit was filed claiming the extra expenditure alleged to have been incurred by the plaintiff consequent on the delay in completion.

3. The claim was denied by the defendants relying upon the supplemental agreements executed by the plaintiff whereunder, he agreed to carry out work during the extended period at the original contract rate. It was also contended that the defendants cannot be blamed for the delay and that the delay occurred due to the inefficiency of the plaintiff.

4. The trial court relied on Ext.C1(a) Expert Engineers' Report and granted a decree for realisation of Rs. 60,70,071/- with interest at the rate of 6% per annum from the date of suit till realisation.

5. We have heard learned Sri.P.I.Davis, the learned Special Government Pleader (Irrigation) for the appellants-defendants and Sri.K.S.Babu, the learned counsel for the respondent-plaintiff.

                  The points that arise for determination in this appeal are:-

                  (i) Was the plaintiff responsible for the delay in completion of the work?

                  (ii) Is the plaintiff entitled to claim higher rates on the ground of delay?

                  (iii) Does the decree and judgment of the trial court warrant any interference?

6. The agreed date for completion of the work was 07.10.2008. The work was completed only on 31.07.2009. Consequent on the delay extra expenditure had to be incurred. The claim is for the same.

7. According to the plaintiff, the reasons for the delay were public agitation against the blasting of rocks, the interdictions by the Panchayat and police authorities and also the interdictory orders in the suits OS 187/2008 and OS 231/2008, both of the Munsiff's Court, Pala.

8. That the work in question involved blasting and removing of hard rock, is not in dispute. Ext.A4 is the copy of the plaint in OS 231/2008, a suit filed by a nearby resident to restrain the plaintiff herein from causing nuisance to the peaceful residence and from conducting blasting operations without complying with the requirements under law. The suit was filed on 17.10.2008. Ext.A5 is the interim order of injunction on similar lines. Ext.A9 is the copy of the plaint in OS 187/2008. It is yet another suit for injunction by another local resident seeking injunction of similar nature. Clause 81.4 of the tender conditions provided for carrying out of blasting operations in due compliance with the provisions of the Explosives Act. Noticeably, the relief sought in the suit and the interim order of injunction passed by the court only restrained the plaintiff from carrying out the blasting operations except as sanctioned under law. Therefore, while it is possible that, under cover of the suits and the orders therein, the plaintiff might have had interference from the local residents in carrying out the work, it cannot be said that, by virtue of the filing of the two suits, there was an absolute prohibition on him. Hence the reliance placed on the suits as the reasons for the delay in performance, cannot be accepted in its entirety.

9. Ext.A3 is the stop memo issued by the Panchayat on the complaint of the local residents. There was interference by the police authorities also. Therefore, it is evident that there was interference from various quarters. If there was any obstruction he ought to have resorted to legal remedies. Anyhow, while the plaintiff cannot, by relying on the suits, the proceedings of the Panchayat, and the intervention of the police authorities, attempt to completely absolve him from the liability for the delay, it cannot also be said that he was solely responsible for the same. When the local residents were against the work, it is only probable that the carrying out of the work was affected. Incidentally it is also to be noted that there is no case that the defendants made any attempts to interfere with the issue to see that the work is smoothly carried out.

10. The fact that due to the delay that occurred, there has been rise in the prices is not in dispute. The contract was entered into based on the 2004 PWD schedule of rates. The contract was completed in October 2008. The quantum of the additional expenditure incurred consequent on the delay has been assessed by an expert as per Ext.C1(a). A reading of Ext.C1(a) indicates that, for calculating the extra expenditure, the expert has reckoned the market rates that prevailed during the period 2008-09 i.e. the relevant period of carrying out the delayed work. However, the expert has proceeded to add the tender excess of 40% to such amount. The tender was based on 2004 schedule of rates and it was therefore, that the quote was for 40% over and above the PAC. When the expert had assessed the cost at the market rate that prevailed during the period 2008-09, the tender excess could not have been added to it. Such calculation is apparently erroneous. It is based on such calculation in Ext.C1(a) that the expert has calculated the extra expenditure at Rs. 40,18,215.90 and add 40% tender excess to the same viz. Rs. 16,07,286.36 and thus calculated the total amount due to the plaintiff at Rs. 56,25,502.26.

11. The defendants having accepted the performance of the contract belatedly and with full knowledge of the rise in prices and also the inability of the plaintiff to carry out the work, is liable to make reasonable payment towards the work done. The defendants rely on the supplemental agreements which required the plaintiff to carry out the work during the extended period at the original contract rate. The trial court noticed that the evidence reveal that any refusal on the part of the plaintiff to execute the supplemental agreements would have resulted in termination of the agreement, requiring the plaintiff to yield to the execution of supplementary agreements. As held by the trial court, under such circumstances the plaintiff cannot be pinned down to the clause in the supplemental agreements with regard to the rate. The supplemental agreements were entered into by the plaintiff under the threat of termination of the contract resulting in drastic consequences. Such agreements executed under the compelling circumstances cannot be foisted upon the plaintiff to negate the additional expenditure incurred by him during the extended period.

12. The learned Government Pleader relied on the judgment of the Apex Court in General Manager, Northern Railway and Anr. v. Sarvesh Chopra (2002 (4) SCC 45), to contend that the contractor having chosen to perform the contract beyond the stipulated period with an undertaking not to make any claim for enhanced rate for the delay in performance, he is precluded from making the claim. We have noticed that it was under compelling circumstances that the plaintiff was constrained to execute the supplemental agreements agreeing to do the work at the original contract rate. As was noticed earlier, the tender was based on 2004 schedule of rates and work was completed during the period 2008-09. The expert has reported about the rate prevailing at the time of carrying the work. Any attempt to pin down the plaintiff to the contract rate will be harsh and inequitable. Hence we find that, on the facts of this case the judgments relied on by the learned Government Pleader is of no avail.

13. Having found that there had been obstruction at the site preventing the plaintiff from carrying out the work, we find it unjust to negate to the plaintiff the extra expenditure, in its entirety. At any rate, having found that the plaintiff also did contribute to the delay in the completion of work, he cannot seek to realise the entire extra expenditure incurred consequent on the delayed performance. On the totality of the facts, we hold that the plaintiff could be granted a decree for one half of the extra expenditure incurred (Rs. 40,18,216 / 2 = Rs. 20,09,108) which would be just and reasonable. The plaintiff is also entitled for an amount of Rs. 4,44,569/- retained by the defendants. The decree and judgment of the trial court is liable to be modified to the above extent.

                  In the result, the appeal is allowed in part. The decree and judgment of the trial court is set aside and modified decree is passed allowing the plaintiff to realise Rs. 24,53,677/- with interest at the rate of 6% per annum from the date of suit till realisation from the defendants and their assets. The plaintiff shall also be entitled for proportionate costs throughout.