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Gauhati High Court · body

2007 DIGILAW 27 (GAU)

Bindhya Agency v. State of Tripura

2007-01-11

H.N.SARMA, MAIBAM B.K.SINGH

body2007
JUDGMENT H.N. Sarma, J. 1. This appeal arises out of the judgment and decree dated 18.9.98 passed by the learned Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala in Title Suit No. 87 of 1993 dismissing the suit of the Plaintiff. 2. We have heard Mr. A.C. Bhowmik, learned Counsel for the Plaintiff/Appellant and Mr. S. Deb, learned Senior Counsel assisted by Mr. P. Dutta and Mr. S. Choudhury, learned Counsel for the state Respondents. 3. Filing the aforesaid suit the Plaintiff in the aforesaid suit, inter alia, prayed for a decree of Rs. 101,54,40,000/- as damage and compensation for breach of contract that was arrived at between the Plaintiff and the Defendants state authorities on 8.1.1993 (Exhibit 4). The Plaintiff initially framed and filed the suit for specific performance of the aforesaid Agreement with consequential relief of injunction. Later on, by way of amendment, the claim of damages was incorporated in the plaint, though no such damage was claimed initially. 4. The pleaded case of the Plaintiff, inter alia, is that the Plaintiff a partnership firm dealing with the business of running lottery having requested government authorities of the State of Tripura, was appointed as Organizing Agent for assisting the Government of Tripura in organizing the State lottery by entering into an agreement dated 8.1.1993 on the terms and conditions mentioned therein for a period of three years from the date the Agreement. 5. According to the agreement the Plaintiff was authorized to run maximum 15 (fifteen) draws in one day including daily, weekly, bumper and instant draw lotteries, the maximum number of draws would be limited to 5475 per year and it had to organize minimum 4 (four) number of draws in a day, and the minimum draw were fixed as 1460 numbers per year. It was also stipulated that the Plaintiff would pay Rs. 10,000/- to the Defendant/State per draw as guaranteed royalty. The Plaintiff further asserted in its plaint that after entering into the above referred agreement the Plaintiff appointed M/s Sanjoy Lotteries of New Delhi, as its sole selling Agent for marketing the tickets of Tripura State Lottery. The Plaintiff also submitted a proposal to start three lotteries namely, 'Dhan Daily Lottery', 'Chetak Daily Lottery' and 'Lav Laxmi Super Daily Lottery' along with the schemes and all relevant particulars to the Defendants/Respondents for according necessary approval. The Plaintiff also submitted a proposal to start three lotteries namely, 'Dhan Daily Lottery', 'Chetak Daily Lottery' and 'Lav Laxmi Super Daily Lottery' along with the schemes and all relevant particulars to the Defendants/Respondents for according necessary approval. But, the Defendant No. 3, the Director of State Lotteries neither rejected nor approved the schemes so filed by the Plaintiff nor did he communicated anything to the Plaintiff regarding acceptance or non-acceptance of the plan and proposal of the Plaintiff The Plaintiff decided and fixed to hold three Lotteries on 147.93 being the appointed agent. As there was no sufficient time in hand, the Plaintiff sent one Shri Basanta Subba as his Agent to Agartala to obtain necessary permission and to collected necessary papers to that effect from the Director, Defendant No. 3. But no such permission was accorded by the Defendants on various pleas. In the meantime, in anticipation of getting necessary permission/approval, the Plaintiff procured a specially designed Lottery machine and sent to the Government and also informed the Defendants that necessary engagement of printers to print the lottery tickets has also been made and all infrastructure are made ready to hold lottery on 14.2.93. In the meantime, specimen signature of the Director for printing in the tickets have also been obtained. It is also pleaded that although the Plaintiff offered to pay in total a sum of Rs. 54,54,750.00, out of which Rs. 4,54,750.00 was offered by the three Bank Drafts all dated 13.2.93 and Rs. 50,00,000,00 by a cheque, the same were refused to accept by the Defendant No. 3, and the draw fixed on 14.2.93 could not be held for non-cooperation of the Defendants. The Plaintiff also made allegation against the Defendants regarding filing of Paltanbazar PS Case No. 54/93 under Section 420, IPC, West Agartala PS Case No. 25 (2) 93 under Section 409, 468 and420, IPC, against the Plaintiff and its men stating those cases to be false and fabricated. It is further pleaded that on 16.2.93 Defendant No. 3 issued a show cause notice to the Plaintiff to show cause as to why the agreement dated 8.1.93 should not be cancelled, to which the Plaintiff replied on 27.2.93 and prayed for appointment of an arbitrator which was not attended to by the Defendants. It is further pleaded that on 16.2.93 Defendant No. 3 issued a show cause notice to the Plaintiff to show cause as to why the agreement dated 8.1.93 should not be cancelled, to which the Plaintiff replied on 27.2.93 and prayed for appointment of an arbitrator which was not attended to by the Defendants. Another notice dated 25.5.93 was also issued to the Plaintiff to show cause against the violation of the terms of the agreement threatening to rescind the same, if not replied within 15 days, to which the Plaintiff replied on 2.6.93. It is further pleaded that such action of the Defendant would go to show that the Defendants are determined to terminate the agreement in spite of Plaintiff having acquired right, title and interest to undertake the work and such termination would cause serious loss and injury to the Plaintiff which cannot be compensated by money, and that there exists no standard and assessment of actual damage for non-performance of the contract. With such allegations, the Plaintiff initially filed the suit praying for specific performance of the agreement dated 8.1.93 and for injunction both temporary and permanent, on 27.7.93 before the trial Court and also obtained an order of temporary injunction against Defendants not to rescind the contract. However, as indicated above, the Plaintiff by amending the plaint incorporated the paragraph Nos. 25 (a) and 25 (b) and also inserted in the prayer No. (g)(1) in the original plaint and made claim for a decree of damages for Rs. 101.54 crores by way of compensation. Consequently, the amended plaint was filed, in terms of the order dated 24.6.96 allowing the prayer for amendment granted by the learned trial Judge. 6. The Defendant No. 1/Respondent contested the suit by filing this written statement denying the allegations made by the Plaintiff. The Defendant in his written statement, however, admitted the Agreement dated 8.1.1993 that was entered into between the parties for running the business of State lotteries, and that the Plaintiff was appointed as sole Organizing Agent for the Tripura State Lotteries on the terms and conditions mentioned in the Agreement itself The Defendant pleaded that the Plaintiff did not comply with the specific terms and conditions of the Agreement for which it was asked to show cause as to why the Agreement dated 8.1.1993 should not be rescinded. The Defendant also denied submission of any scheme of lotteries as claimed by the Plaintiff for approval of the State authorities. It is also pleaded by the Defendant that the Defendant did not issue any print order of lottery tickets. Further pleading of the Defendant is that the Plaintiff though was required to pay royalty for the period when the draw of lottery was not held, it did not pay the same. According to the Defendant the Plaintiff violated Clause-15 of the Agreement by not furnishing any bank guarantee securing payment of royalty money as required render the said Clause. The Defendant also did not admit that the Director of State Lottery had violated any terms and conditions of the Agreement by lodging complaint against the Plaintiff and its Agent with the West Agartala Police Station on 16.2.1993 as it was required to be done for the offence of criminal breach of trust committed by them. The claim of damages has also been denied. Pleading in the aforesaid manner, the Defendant prayed for dismissal of the suit. 7. On the basis of the pleadings of the parties, the trial Court framed the following issues to decide the suit: (a) Whether the suit is maintainable in its present form? (b) Whether the Plaintiff was appointed Authorized Agent of the State of Tripura to hold the lotteries and if so whether the Plaintiff took necessary step to hold lotteries in pursuance of the Agreement ? (c) Whether the Defendants prevented the Plaintiff illegally to hold lotteries in violation of the Agreement with the Plaintiff ? And (d) Whether the Plaintiff is entitled to any relief and if so upto what extent? 8. In support of its claim, the Plaintiff examined three witnesses and submitted documentary evidence vide Exhibits 1 to 31 whereas the Defendant examined one witness, and also exhibited some documents. 9. At the close of the trial, the learned trial Court though decided the Issue No. (a) and (b) in favour of the Plaintiff but deciding the Issue No. (c) and (d) against the Plaintiff dismissed the suit by the impugned judgment and decree. 10. Challenging the impugned judgment, Mr. A.C. Bhowmik, learned Counsel for the Plaintiff submits that in view of the finding of Issue No. (a) and (b) in favour of the Plaintiff, the trial court acted illegally and inconsistently in dismissing the suit. 10. Challenging the impugned judgment, Mr. A.C. Bhowmik, learned Counsel for the Plaintiff submits that in view of the finding of Issue No. (a) and (b) in favour of the Plaintiff, the trial court acted illegally and inconsistently in dismissing the suit. According to the learned Counsel, findings of the trial Court on Issue No. (c) and (d) are vitiated for non-consideration of the relevant facts, which were proved in the suit. Mr. S. Deb, learned Senior Counsel for the Defendant, on the other hand, submits that the instant suit filed by the Plaintiff was initially for specific performance of the Agreement dated 8.1.1993 with consequential relief of injunction. Later on, the suit was converted into a suit for damage and compensation by amending the plaint but no specific cause of action has been pleaded regarding entitlement to damage to which the Plaintiff ultimately rested its claim. He further submits that the Plaintiff itself not having compiled with the terms and conditions of the Agreement cannot be heard to say that Defendants violated the contract and for such alleged violation, the Plaintiff is entitled to damage and compensation. The learned Counsel specifically refers to Clause 15 of the Agreement, which the Plaintiff did not comply with so as to enable to get a decree on account of breach of contract, either for specific performance of the contract or for damage. 11. We have considered the rival submissions made by the learned Counsel for the parties and also perused the connected records available before us. Although the suit was initially filed for specific performance of the Agreement dated 8.1.1993 with consequential relief of injunction, later on, the same was converted into a suit for damage and compensation by way of amendment of the plaint. After amendment of the plaint, the prayer portion of the plaint remained as follows: (a) A declaration that the Plaintiff is entitled to specific performance by the Defendants of the Agreement dated 8th January, 1993; (b) A decree against the Defendant Nos. 1, 2 and 3 for specific performance of the Agreement dated 8th January 1993 entered into between the Plaintiff and the said Defendants and allowing the Plaintiff to act as the sole organizing agent of Tripura State Lottery as the said Agreement dated 8th January, 1993; (c) A declaration that the Agreement dated 8th January, 1993 between the Plaintiff and the Defendant Nos. 1, 2 and 3 is valid and binding on the Government of Tripura whereby and whereunder the Plaintiff is entitled to act as its sole organizing agent; (d) A decree in the nature of mandatory injunction directing the Respondent Nos. 1, 2 and 3 to take all steps or holding and organizing daily lotteries through the Plaintiff; (e) A decree restraining the Defendant Nos. 1, 2 and 3 from appointing any organizing agent of entering into any Agreement of organizing agency with any one for the State Lotteries of Tripura of any nature, kind whatsoever; (f) A decree declaring that the Defendant Nos. 1, 2 and 3 have committed breach of the terms of the Agreement dated 8th January, 1993 by not allowing the Plaintiff to hold the draws and also subsequent draws and therefore liable to indemnify the Plaintiff; (g) A decree for declaration that the Defendants are guilty of causing special loss and injury to the Plaintiff and to its business reputation, name, fame and goodwill in the trade of lottery in India and a further declaration that the Defendants have invaded and have threatened to invade the Plaintiff's property, right acquired under the Agreement dated 8th January, 1993; (g1) A decree for damage for Rs. 101.54 crores (Rupees one hundred one crores and fifty four lakhs) only by way of compensation and damages to the Plaintiff with all interest accrued thereon till the date of payment; (h) A decree for costs of the suit and (i) A decree for any other relief or reliefs to which the Plaintiff maybe found entitled to under the law. 12. Let us now scan the evidence of the witnesses adduced by the parties in order to appreciate the submission of the learned Counsels and to scrutinize the legality of the impugned judgment, P.W. 1, Shri Ashoke Kumar Subba is the Managing Partner of the Plaintiff, which is a registered partnership firm. 12. Let us now scan the evidence of the witnesses adduced by the parties in order to appreciate the submission of the learned Counsels and to scrutinize the legality of the impugned judgment, P.W. 1, Shri Ashoke Kumar Subba is the Managing Partner of the Plaintiff, which is a registered partnership firm. This witness in his chief has stated, inter alia, that as per discussion held with the then Chief Minister, Tripura in the month of February, 1992 along with the General Secretary of the North-East Co-ordination Council Committee of Congress (I), he submitted a draft Agreement along with an application to the then Chief Minister of Tripura on 13.3.1992 for the purpose of appointing Plaintiff as Organizing Agent for starting and running Tripura State Lottery, an Agreement was executed between the Plaintiff and the Government of Tripura for a period of three years to run the State Lotteries of Tripura on 8.1.1993 which was exhibited as Exbt 4. The said Agreement was signed by him (P.W.-1) and the Joint Secretary of Tripura on behalf of the Government of Tripura on 8.1.1993. He also deposed that on 9.1.1993, he submitted a scheme to the Government along with a letter addressed to the Director, Institutional Finance, Government of Tripura together with a scheme enclosing certain annexures which were exhibited as Exbt 6 series, containing his signature. It is further stated by him that he did not receive any reply from the Government, for which he wrote another letter on 24.1.1993 to the said Director, vide Exbt. 7. It is also stated that he intimated the Government vide Exbt. 7 that the first draw of three daily lotteries would be held on 14.2.1993 and as per Agreement, the Plaintiff was authorized to draw 15 lotteries maximum and minimum 4 lotteries per day. Further deposition of this witness is that he submitted the scheme containing its first 3 daily lotteries, namely, 'Dhan Daily', 'Chetak Daily' and 'Lav Laxmi Super'. Vide letter dated 25.1.1993, he intimated the Director, Directorate of Institutional Finance, Govt. of Tripura the names and address of the printer of the tickets and the numbers of the tickets with numbers of denomination per ticket etc. By the said letter, he also sought for approval for 'Chetak Daily' lotteries scheme. The said letter was handed over to the Private Secretary to the Chief Minister vide Exbt. 8. of Tripura the names and address of the printer of the tickets and the numbers of the tickets with numbers of denomination per ticket etc. By the said letter, he also sought for approval for 'Chetak Daily' lotteries scheme. The said letter was handed over to the Private Secretary to the Chief Minister vide Exbt. 8. He further deposed that on 21.1.1993, one Mr. D. Chakraborty handed over his three specimen signatures to his Manager, Basanta Subba and on receipt of the said specimen signature, sent to the printer at Delhi, that the Government of Tripura did never cancel the scheme nor send any intimation disapproving the scheme. Further statement of this witness is that they printed the daily lottery tickets of all the three schemes, namely, 'Dhan Daily', 'Chetak Daily' and 'Lav Laxmi Super' and received a letter from Mr. D. Chakraborty, Director intimating that a detailed discussion was considered necessary for finalizing the operational details etc. vide Exbt. 9. He also deposed that acting on the Agreement Exbt. 4, they appointed Sanjoy Lotteries of New Delhi as sole Selling Agent of the Plaintiff for marketing the tickets of Tripura State Lotteries and before making such appointment, an Agreement dated 18.1.1993 was entered into between them vide Exbt. 10. This witness proved six tickets of the said 3 daily lotteries vide Ext. 11 series. He has also stated that they sent lottery machine to the Government from Delhi through their sole Selling Agent, Sanjoy Lottery and they did not receive any intimation from the Government disapproving the lottery machine. P.W.-1 admitted that the Plaintiff was to pay guarantee royalty of one crore forty-six lacs per annum only to the Government of Tripura for the said lotteries as per Agreement and, accordingly, they proceeded for further step for drawing up the first three weekly lotteries on 14.2.1993. P.W.-1 further stated that on receipt of the letter from the Government dated 28.1.1993, though the Plaintiff and their Manager, Basanta Subba met to the Defendant authorities/Respondents to discuss the operational details on 12.2.1993, but the said authorities having remained absent, no draws could be held on 14.2.1993, that the said authority, namely Mr. D. Chakraborty avoided the said meeting, that on 14.2.1993, he came to Agartala along with a partner of Sanjoy Lotteries with an A/c payee cheque of Rs. 50 lacs and three demand drafts Rs. D. Chakraborty avoided the said meeting, that on 14.2.1993, he came to Agartala along with a partner of Sanjoy Lotteries with an A/c payee cheque of Rs. 50 lacs and three demand drafts Rs. 4,54,750/- in favour of the Government of Tripura and when they wanted to hand over the cheque to Mr. D. Chakraborty, the Director, Institutional Finance (subsequently re-designated as Director, Lotteries) on 14.2.1993, they found the office of the Director of State Lotteries under lock and key and when they went again on 15.2.1993 and presented the cheque and drafts to Mr. Chakraborty, he did not receive the same, that no lottery could be held on 1.2.1993 (sic) because of the non-cooperation of the Defendants as well as Government officials, that P.S. Jain was the Agent of Sanjoy Lotteries, who prepared three drafts of Rs. 2,00,000/-, Rs. 1,68,750/- and Rs. 86,000/- in favour of the Government. The statement of account dated 28.7.1997 of Sanjoy Lotteries has been proved as Exbt. 16, which disclose that they had requisite fund in the year 1993 for honouring the A/c payee cheque for Rs. 50 Lakhs in favour of the Government of Tripura. By proving Exbt. 17, this witness has stated that the said document will prove that Vijoya Bank, New Delhi issued two demand drafts of Rs. 2,00,000/- and Rs. 1,68,750/- in favour of the Government of Tripura. This witness has also stated that on 18.2.1993, police arrested him and produced before the Chief Judicial Magistrate, Agartala in connection with a criminal case which was lodged by the Defendant No. 3. It is stated that the Defendant No. 3 lodged the aforesaid complaint falsely against them with a view to create pressure so that they surrender the Agreement dated 8.1.1993. P.W.-1 also stated that they received a show cause notice from the Defendant No. 3 to which they replied on 27.2.1993 vide Exbt 19. It is also and that they received another show cause notice dated 21.5.1993 from the Secretary, Finance, to which they replied vide Exbt. 21. Another notice dated 3.7.1993 from the Secretary, Finance is also admitted to have been received to which also they replied vide Ext. 23. It is stated that the Plaintiff was never asked to hold the State lotteries by the Government in spite of their readiness and willingness to do so. 21. Another notice dated 3.7.1993 from the Secretary, Finance is also admitted to have been received to which also they replied vide Ext. 23. It is stated that the Plaintiff was never asked to hold the State lotteries by the Government in spite of their readiness and willingness to do so. P.W.-1 also alleged suffering of pecuniary loss and also reputation in the lottery field. According to him, the entire episode cast a stigma to their concern for having another contract from another State Government for lottery business. He stated that the Plaintiff could have earned a sum of Rs. 91.54 crores by modest estimation in the period of three years having a minimum charge of 1 crore per draw excluding all bumper draws. It is further stated that as the Plaintiff did not violate any terms and conditions of the Agreement and the Defendants had no right or authority to issue show cause notice upon them. On cross-examination, this witness has admitted that they did not pay Rs. 50,00,000/- to the Government of Tripura by bank draft but offered by a cheque. It is also admitted that they did not furnish any bank guarantee covering the entire amount due and a part of it was paid by cheque. He has also admitted that according to the terms and conditions of the Agreement, they had to furnish a bank guarantee for an amount of Rs. 50,00,000/-. He further admitted that he did not personally meet the Finance Secretary in pursuance to Exbt. 22. He denied the suggestion that the authority had not sent any specimen signature to them. It is also admitted by this witness that the Government of Tripura did not authorize them in writing to print the lottery tickets and the Agreement does not provide to act on oral instruction, but he acted on good faith. 13. P.W. 2 is the Chartered Accountant and partner of M/s M.S. Murthy and Associates, who is the internal Auditor of Bindhya Agency for Arunachal Pradesh, the Plaintiff. This witness has stated about reconciliation statement of Account of Bindhya Agency, the Plaintiff in respect of Arunachal Pradesh vide Exbt 29. In cross, he stated that he is the internal auditor of the Plaintiff in respect of Arunachal Pradesh only. 14. P.W. 3, Sri Basant Subba, who was the Branch Manager of the Plaintiff. This witness has stated about reconciliation statement of Account of Bindhya Agency, the Plaintiff in respect of Arunachal Pradesh vide Exbt 29. In cross, he stated that he is the internal auditor of the Plaintiff in respect of Arunachal Pradesh only. 14. P.W. 3, Sri Basant Subba, who was the Branch Manager of the Plaintiff. He has stated in his deposition, inter alia, that he submitted the scheme and other documents to Mr. D. Chakraborty, the Defendant No. 3 who handed over three specimen signatures for printing the signature in the lottery tickets on 21.1.1993. In cross, he has stated that along with specimen signature, no letter was enclosed by the Defendant No. 3. He denied the suggestion that the Defendant No. 3 did not give any specimen signature. 15. The Defendants examined one Dibakar Chakraborty, the Secretary to the Government of Tripura as D.W.-1, as their lone witness in support of their case. This witness was previously the Director of Institutional Finance and the State Lotteries. In his deposition, he has stated, inter alia, that there was a contract Agreement in between Bindhya Agency, (the Plaintiff) and the Government of Tripura regarding Tripura State Lotteries. He stated that a letter Exbt.-8 was received by one Sarkar on behalf of the Chief Minister and thereafter he wrote Exbt. 9 dated 25.1.93 detailing the follow up actions to the Plaintiff. D.W.-1 has further stated that the Director of the State Lotteries was the competent authority to approve the lottery scheme and he did not accord any approval of the schemes of the State Lotteries. He has also stated that he did not gave any specimen signature to the Plaintiff for printing and publishing in the lottery tickets and did not accord any approval for the lottery machine. He denied to have given any verbal instructions to the Plaintiff or his authorized agent to go ahead with the lottery schemes nor any assurance given to the Plaintiff in this regard. In his cross, this witness has stated that at the relevant time, he was authorized person on behalf of the State to conduct the State Lotteries. He denied to have given any verbal instructions to the Plaintiff or his authorized agent to go ahead with the lottery schemes nor any assurance given to the Plaintiff in this regard. In his cross, this witness has stated that at the relevant time, he was authorized person on behalf of the State to conduct the State Lotteries. He further stated that in Exhibit-20 at Clause-8, it is written that the specimen signature of the Director of State Lotteries have to be obtained and that his specimen signatures were printed by them in the lottery tickets of various draws without his consent and approval, which is illegal and amounts to criminal offence and he endorsed the fact that it was rightly written in the aforesaid clause No. 8 of the agreement, Exbt.-20. D.W. further stated that Exhibit-22 letter dated 3.7.1993 was not a show cause notice and it was written by the Secretary, Finance asking the Plaintiff to appear before him on 30.7.1993. He further stated that he did not recommend to the Governor to cancel and/or terminate the Agreement dated 8.1.1993 and it is the State of Tripura who is competent to recommend to the Governor to cancel the Agreement. In cross, he further denied the suggestion that he handed over three specimen signatures to Mr. Basant Subba on 21.1.1993 after approval of the scheme for publishing and printing the signature in the lottery tickets. He has also denied suggestion that he approved the lottery scheme as submitted by the Plaintiff and that he approved the lottery machines as reportedly sent by the Plaintiff to him. He has further stated that he has gone through the written statement and also approved the same. Suggestions regarding giving approval to Basanta Subba to proceed with the scheme and also to place the printing order of the lottery tickets was denied by him. He further denied any liability of the State. 16. In the conspectus of the aforesaid evidence including the documentary evidence so proved, it is to be seen whether the Plaintiff has been able to establish his case as required under the law to get a decree of damage as prayed for in the suit. He further denied any liability of the State. 16. In the conspectus of the aforesaid evidence including the documentary evidence so proved, it is to be seen whether the Plaintiff has been able to establish his case as required under the law to get a decree of damage as prayed for in the suit. It is one of the basic principle of law in deciding a suit for specific performance of contract that the Plaintiff must be ready and willing to perform his part of obligation of the contract as per the terms of the contract. Although the declaratory suit initially filed by the Plaintiff was later on converted into a suit for damage and compensation, since the very genesis of the claim of the Plaintiff is the breach of Agreement dated 8.1.1993, the Plaintiff is required to show and establish that they have fulfilled the corresponding obligations as mentioned in the various Clauses of the Agreement in order to succeed in the suit for damage for breach of contract. Damage is claimed in the suit as sine qua non for the breach of the agreement and as such it is the burden of the Plaintiff to establish that such breach was out and out illegal and the Defendant was solely responsible for such breach, consequential to which only the Plaintiff would be entitled to a decree for such damage. That apart, after establishing the aforesaid contingency, the Plaintiff is also required to prove the entitlement of the exemplary damage/compensation as claimed in the suit as the instant suit is not for any notional damage. 17. In order to arrive at the aforesaid decision, we have scrutinized the various terms of the Agreement dated 8.1.1993 (Exbt. 4). For ready reference, the following necessary and relevant terms of the Agreement which are germane for decision of this appeal are quoted herein below: (6) The fixed royalty amount shall be paid within 10 (ten) days of the draw held. Provided that when the Organising Agent fails to pay any installment during the stipulated time referred to above they shall be liable to pay interest at the rate of 6% per annum for each day of default subject to a maximum of 90 (ninety) days and thereafter at the rate of 12% per annum for each day of default. Provided that when the Organising Agent fails to pay any installment during the stipulated time referred to above they shall be liable to pay interest at the rate of 6% per annum for each day of default subject to a maximum of 90 (ninety) days and thereafter at the rate of 12% per annum for each day of default. Provided that the loyalty for each draw must be paid within 180 (one hundred and eighty) days of the draw held. (7) The scheme for each lottery shall be submitted by the organizing Agent as per guidelines mentioned in the Agreement and shall be approved by the Director of State Lotteries, Government of Tripura within those days from the date of submission of the scheme by the Organising Agent, if satisfied. (9) (c). The Governor shall authorize the Organising Agent to settle such claim of the prize winning tickets upto Rs. 5,000/- (Rupees five thousand) which are not subject to deduction of tax liability at source and therefore the Organising Agent shall deposit with the Government of Tripura only the total prize money for which tax deduction at source is required. (12) The prizes in each draw which are not claimed by the prize winners within 90 (ninety) days from the date of draw shall not be disbursed, After 90 (ninety) days the unclaimed prize money shall be adjusted/refunded to the Organising Agent. (15) The Organising Agent shall provide the Government with Bank Guarantee of the Scheduled Bank at Agartala for a sum of Rs. 50,00,000/- (Rupees fifty lacs only) to cover the period of Agreement towards securing of prize money and royalty and which shall be liable to be forfeited by the Government of Tripura in case of the breach of the Agreement. (20) The Organising Agent shall be solely responsible for the sale of the entire lottery ticket printed for each draw. The Director of State Lotteries, Govt. of Tripura shall not be liable for any loss caused to the Organising Agent on account of lottery tickets remaining unsold. (22) In case of any difference or dispute between the parties making this Agreement, the same shall be referred for Arbitration to an Arbitrator to be appointed by the Government of Tripura. The Director of State Lotteries, Govt. of Tripura shall not be liable for any loss caused to the Organising Agent on account of lottery tickets remaining unsold. (22) In case of any difference or dispute between the parties making this Agreement, the same shall be referred for Arbitration to an Arbitrator to be appointed by the Government of Tripura. (26) If either of the parties wish to discontinue the running of lotteries under this Agreement, it shall give to other party a notice of not less than three months in writing of its intention to do so. 18. A careful reading of the Clauses referred to above unerringly show that a fixed royalty amount shall be paid within ten days of the draw held and the scheme for running such lottery shall be submitted by the Plaintiff to the Government which shall be approved by the Director, Lotteries, Tripura within three days from the date of submission of the scheme, if satisfied. It is also one of the terms of the contract that the Governor shall authorize the Organising Agent to settle the claim of the prize winning tickets upto Rs. 5,000/- which will not be subjected to the deduction of tax liability at source and the Organising Agent shall deposit with the Government only the total prize money for which tax deduction at source is required. Clause-12 of the Agreement provides that prizes in each draw which are not claimed by the prize winners within specific period of ninety days from the date of draw shall not be disbursed and after ninety days, unclaimed prize money shall be adjusted/refunded to the Organising Agent. 19. As per Clause-15 of the Agreement, the Plaintiff the Organising Agent, is required to provide the Government Bank guarantee of the scheduled Bank at Agartala for a sum of Rs. 50,000,00/- to cover the period of Agreement towards securing the prize money and royalty. There is also an arbitration clause for referring the dispute (s) arising out of the contract as per Clause-22. Cancellation of Agreement by either parties by issuing three months notice is also provided as per Clause-26. 20. The admitted fact in the instant case is that the Plaintiff offered the Defendants three Bank drafts for Rs. 4,68,000/- and Rs. 50,000.00/- by way of A/C payee cheque No. 475834 dated 12.2.93 drawn on Vijoya Bank. Cancellation of Agreement by either parties by issuing three months notice is also provided as per Clause-26. 20. The admitted fact in the instant case is that the Plaintiff offered the Defendants three Bank drafts for Rs. 4,68,000/- and Rs. 50,000.00/- by way of A/C payee cheque No. 475834 dated 12.2.93 drawn on Vijoya Bank. The said cheque was issued from the account of one Sanjoy Lottery. These amounts were offered by the Plaintiff in discharge of their liability as required under the Agreement. 21. Mr. S. Deb, learned Senior Counsel for the Defendants submits that the deposit or offer to pay the aforesaid amount by way of cheque as well as bank draft is not as per the specific requirement of Clause-15 of the Agreement and thus there has been clear infraction of Clause-15 of the Agreement. In reply, Mr. Bhowmik, learned Counsel for the Plaintiff vehemently opposing the said submission contends that the demand drafts, for all intents and purposes view is even better than other modes of payment inasmuch as the banker is bound to pay the amount mentioned in the demand draft on demand by the payee itself Referring to offer of the payment by the cheque in question amounting to Rs. 50,00,000/- as per Clause-15 of the agreement, it is submitted by Mr. Bhowmik that the said cheque was issued from the account of M/s Sanjoy Lottery, who is the sub-agent of the Plaintiff and Sanjoy Lottery has such authority to issue the cheque on behalf of the Plaintiff. The statement of account of the said Sanjoy Lottery from which the aforesaid cheque was issued was as Ext. 16 by the Plaintiff. On perusal of the aforesaid Exbt. 16 which is the statement of account for the period from 1.2.1993 to 28.2.1993, it is to be seen that the balance at the end of the month in the said account was Rs. 13,83,740.85p only which does not cover the cheque of Rs. 50,00,000.00 dated 12.2.93. Mr. Bhowmik submits that the aforesaid cheque of Rs. 50,00,000/- was dated 13.2.1993 and the said account of M/s Sanjoy Lotteries is a current account. Thus, although the Exbt. 16 does not cover the said cheque amount, the account in question being a current account, the Bank authority can always allow over draft to the extent of instruction issued by the drawer against such account. 50,00,000/- was dated 13.2.1993 and the said account of M/s Sanjoy Lotteries is a current account. Thus, although the Exbt. 16 does not cover the said cheque amount, the account in question being a current account, the Bank authority can always allow over draft to the extent of instruction issued by the drawer against such account. But in the instant suit, the Plaintiff has not proved those facts nor it has not been proved to what is the limit of drawal in the aforesaid current account and the related terms thereof and hence, it is not possible for the Court to accept the said submission of Mr. Bhowmik on surmises and conjectures, apparently, Exbt.-16 does not cover the cheque amount of Rs. 50,00,000.00 in the month of February particularly on 12.2.93 in the said account. 22. There is yet another aspect of the matter. It is the probity and essential terms of the contract that was arrived at by the parties that the aforesaid amount is to be furnished in a bank guarantee. Instead of that, the Plaintiff has offered the amount by an account payee cheque. A bank guarantee cannot be equated to a cheque. Both have different legal criteria and stand on different footing as regards their realistic standing inasmuch as a bank given guarantee is given by the bank to a customer on being satisfied by such bank. Such satisfaction may come by way of depositing the amount mentioned in the bank guarantee to the issuing bank or in view of certain old banker-customer relationship between fidelity. A bank guarantee when issued hardly can go uncovered but which does a cheque not undergo. After issuance of a cheque, the drawer can very well send an instruction to its banker not to encash such cheque. It appears that with a view to have a certainty on getting the payment, the said authorities incorporating the aforesaid provisions of payment by way of bank guarantee at Clause-15. That apart, the cheque amount in question is for less than the amount contained in the concerned amount as is evident from Exbt-16. 23. In view of the aforesaid discussion, I find that the Plaintiff itself violated the terms and conditions as mentioned in Clause-15 of the Agreement. 24. That apart, the cheque amount in question is for less than the amount contained in the concerned amount as is evident from Exbt-16. 23. In view of the aforesaid discussion, I find that the Plaintiff itself violated the terms and conditions as mentioned in Clause-15 of the Agreement. 24. That apart, the Plaintiff also in violation of the Clause-9 of the Agreement added that all claims of the prizes should be preferred within 30 days from the date of draw instead of 90 days as contained in Clause-12 of the agreement reducing thereby on their own, which is also not permissible. Further violation also lit large on the letter, Exbt. 6 document, dated 9.1.1993, written by the Plaintiff to the Defendant No. 3 wherein at Clause-14, the Plaintiff incorporated that there will be a deduction of 25% from the first prize holder besides the usual income tax deduction which is also not authorized as per Clause 9(c) of the Agreement. The period of limitation was reduced to 30 days, as per claim Clause-9 of Exbt. 6 which is also unauthorized as per Clause-6 of the Agreement. Inevitably, the conclusion from the aforesaid discussion is that the Plaintiff himself violated the terms and conditions of the Agreement and for that they cannot be said to be ready to perform the terms of the agreement so as to entitle the decree as prayed for. 25. Commenting seriously on the question of not giving formal approval of the scheme, it is strenuously urged by Mr. Bhowmik that such a scheme having been submitted by the Plaintiff to the Defendant/Respondents well ahead of time fixed for holding the lottery by them and the Defendants/Respondents not having accorded approval to the same or even not making any communication within three days as required as per the Agreement, such action of the Defendants deemed to have providing the necessary approval of the scheme submitted by the Plaintiff. But a perusal of the Agreement discloses that there is no such deeming provisions contained in the said Agreement. Even Clause-7 provides such approval within three days from the date of submission of the scheme contains the authority is to be given provided that the authority is satisfied with the scheme. The evidence of Defendant No. 3 unerringly go to show that the Defendants had never given any approval on any scheme. 26. Even Clause-7 provides such approval within three days from the date of submission of the scheme contains the authority is to be given provided that the authority is satisfied with the scheme. The evidence of Defendant No. 3 unerringly go to show that the Defendants had never given any approval on any scheme. 26. Although the Plaintiffs claim that the Director, Institutional Finance having written to the Plaintiff vide letter dated 28.1.1993 calling upon the Plaintiff for finalizing operational details etc., the said exhibit is an indicative of approval of the scheme, we are unable to accept the said contention inasmuch as in the said letter it is no where stated that the scheme submitted by the Plaintiff had been approved and accepted by the Defendants but the same not only included the methodology of holding the lottery game but also included certain other details Which might emanate from the Agreement arrived at by the parties. 27. The Plaintiff, in fact, pleaded in his plaint that he had an apprehension in his mind that the Defendants may not allow them to run the lottery smoothly. But without formal and express approval from the Defendant/Respondents, the Plaintiff took the risk of spending money for the purpose of holding lottery unilaterally. 28. The entire theme of the Agreement discloses that the lottery covered by the agreement would run on Mutual Agreement on the relevant issues and that was the reason why the scheme was required to be approved by the State Govt. The Plaintiff cannot be said to have been authorized, in the facts and circumstances to go on unilaterally for making preparation for holding lotteries and date fixed by them by spending a huge amount as claimed in spite of not furnishing necessary approval by the Defendants/Respondents/State authorities. 29. Another important facet of the case is that while the Plaintiff was asked to appear for necessary discussion by the Secretary Finance of the State, and instead of complying with the same, the Plaintiff approached the Court and filed the suit praying for specific performance of the Agreement with consequential relief of injunction and the learned Court having granted an ad-interim injunction on such prayer, the Defendants authorities could not go further towards cancellation of the Agreement though they so proposed. While the period of contract expired, in the meantime during the pendency of the suit, the Plaintiff ultimately amended the suit and converted it into a suit for damage and compensation but without any adequate pleading in its support and filed the amended plaint on 10.9.97. 30. In the suit, the Plaintiff/Appellant, referring his income as an Agent of the Arunachal Pradesh State Lottery, has submitted that as per the modest estimation, he could have earned an amount of Rs. 91.54 crores during the period of contract. The claim of the Plaintiff for damage is on the basis of on actual loss of profit and expenditure so made. No notional damage has been claimed in the instant suit. As such the Plaintiff is bound to give details of such loss to the satisfaction of the Court to assess such damages. But reading of the plaint as well as the evidence of P.Ws. 1 and 2 and the document so proved in the suit do not disclose that the Plaintiff has been able to prove his loss to the extent claimed in the suit. 31. It terms of the aforesaid discussion, we find that in the instant suit, the Plaintiff was not ready to perform their part of the contract although they might be willing for the same and in such a situation, the Plaintiff is not entitled to the relief as prayed for. 32. It is further to be noted that in terms of the averment made in the plaint, the Plaintiff had already sold the tickets of the related lotteries through his appointed agents throughout India and they had taken all necessary steps to hold the first draw on 14.2.1993. Exbt. 11 goes to show that the Plaintiff, in fact, printed such tickets and sold the same amongst the people. The trial Court has considered these aspects of the matter and held that though the Plaintiff did not furnish the tickets of all those lotteries scheduled to be held on 14.2.1993, yet there is/was no reason to disbelieve this fact. Exbt. 11 goes to show that the Plaintiff, in fact, printed such tickets and sold the same amongst the people. The trial Court has considered these aspects of the matter and held that though the Plaintiff did not furnish the tickets of all those lotteries scheduled to be held on 14.2.1993, yet there is/was no reason to disbelieve this fact. The Plaintiff submitted three tickets under different schemes of Dhan Daily which was fixed for drawal on 26.2.1993, Chetak Daily which was fixed for drawal on 14.2.1993 and Lav Laxmi Super daily which was fixed for drawal on 22.2.1993 and the trial Court is perfectly justified in holding that the Plaintiff had arranged for holding of the aforesaid lotteries with effect from 14.2.1993 to 26.2.1993 i.e. for 13 days for the first lot and the Managing Partner of the Plaintiff Sri A.K. Subba came to Agartala to attend the draw of the said lottery and prior to that date, their agent had sold tickets of the aforementioned three lotteries throughout the State. As such, it can safely be held that whatever the amount spent in order to making preparation of the lotteries has already been realized, even much more than that by selling tickets in the aforesaid manner. Since lotteries were not been held, admittedly, the Plaintiff appropriated those amount and on the contrary, no submission could be made to that effect on behalf of the Plaintiff. 33. In view of the aforesaid discussions, we do not find any merit in this appeal so as to set aside the final decision arrived at by the trial Court and we concur with the decision arrived at by the trial Court. Accordingly, the first appeal stands dismissed but the parties to bear their own costs. Appeal dismissed