JUDGMENT Hon’ble B.S. Verma, J. (Oral) This appeal is directed against the judgment and decree dated 24-12-2004, passed by Additional District Judge/F.T.C., Nainital, in Civil Suit No. 79 of 1998, Food Corporation of India Versus Sateyendra Kumar Goel, whereby the suit of the plaintiff was dismissed with costs. 2. Brief facts of the case giving rise to this appeal are that Food Corporation of India, does the work of storage and distribution of food grains and for this task invites tenders from the transporters to transport the food grains from one place to other. In this context the tender of defendant Satyendra Kumar Goel (now deceased) was accepted on 1.3.1993 and he was informed by telephone to start the work within seven days, but the defendant did not start the work and the food grains could not be supplied to remote areas of Kumaon Division and there was shortage of food grains. On 23.4.1993 notice was sent to defendant to deposit security money and start the work within a period of seven days, despite notice the defendant neither deposited the security money nor started the transportation work and the plaintiff had to execute the work with the help of other transporters and plaintiff suffered loss. Plaintiff again insisted upon the defendant to start the work without further delay and also told the defendant to do alternate arrangement to complete the work. Again letter was written to the defendant but the defendant did not come forward to complete the work. Therefore the Senior Area Manager, F.C.I. Lucknow forfeited the security money of the defendant to the tune of Rs. 20,000/- and another tender was invited at the risk of defendant and it was due to open on 23-6-1993 and its information was given to the defendant. The defendant came to the office of District Manager, F.C.I. Haldwani and requested to permit him to start the work. The defendant did not do the work during the period 8.4.93 to 18.6.93 and plaintiff suffered loss and this loss was to be recovered from the pending bills of the defendant for the work done by him @ 5%. It is further case of the plaintiff that on the request of defendant the plaintiff did not invite fresh tenders and the defendant did not make available sufficient trucks to transport wheat and there was shortage of wheat in Kumaun and Garhwal regions. It is further case of the plaintiff that on the request of defendant the plaintiff did not invite fresh tenders and the defendant did not make available sufficient trucks to transport wheat and there was shortage of wheat in Kumaun and Garhwal regions. The defendant was directed to supply 2000 quintals wheat to Tanakpur upto 30-11-93 but the defendant failed to do so and the plaintiff had to do alternate arrangements at the risk of defendant and plaintiff had suffered a loss of Rs. 2,68,030-73 due to negligence of defendant out of which a sum of Rs. 1,29,905/- was adjusted from the bill of the defendant and sent a demand notice to the tune of Rs. 1,58,125-73. The defendant had his security money to the tune of Rs. 1,20,785/- with the plaintiff and after adjusting this amount, a sum of Rs. 37,340-95 is due against the defendant and for the recovery of this amount suit was instituted by the plaintiff. 3. The defendant contested the suit by filing the written statement and alleged that he had given tender in 1993 for transporting food grain upto the distance of 50 kilometers from Nainital and he had deposited Rs. 20,000/- as security money but due to his sustaining injury, he could not join the work and the plaintiff had a right to forfeit his security money, but the plaintiff did the work through other persons at the risk of the defendant and its information was not given to him. When the defendant knew it he met to Regional Officer and agreed to deduct 5% from his bills towards the expenditure of department. After joining the work, the food grains was returned as the depot in charge and the labourers had loaded spoiled food grains and defendant was not paid the transport charges of food grains and the defendant had instituted suit in Udham Singh Nagar and also 3 filed a writ petition at Lucknow Bench of the Allahabad High Court which is pending. 4. The trial court on the basis of pleadings of parties framed following issues in the suit:- 1- Whether the plaintiff department is entitled to get a sum of Rs. 37,400/- from the defendant, after adjusting a sum of Rs. 1,20,785/- as security money of the defendant, from a sum of Rs. 1,29,905/- of bills due against the plaintiff, for not doing the work as per agreement dated 28-1-1993?. 37,400/- from the defendant, after adjusting a sum of Rs. 1,20,785/- as security money of the defendant, from a sum of Rs. 1,29,905/- of bills due against the plaintiff, for not doing the work as per agreement dated 28-1-1993?. 2- Whether the plaintiff department had acted illegally by forfeiting the security money of the defendant ?. 3- To what relief the plaintiff is entitled to get?. 5. Plaintiff in support of its case has examined P.W.1, Harish Singh Bisht, and P.W.2. Room Singh and also filed documentary evidence. 6. The defendant got examined himself as D.W.1 and also filed his medical certificate. 7. The trial court after considering the evidence on record and hearing the parties dismissed the suit of the plaintiff with cost. 8. Feeling aggrieved the appellant has filed this appeal before this court. 9. I have heard learned counsel for the parties and perused the record. 10. The learned trial court while deciding issue No.1 has recorded a finding that the defendant could not start the work upto 18-6-1993 despite the information given to him by the plaintiff on 31-3-93 and on 18-6-1993 the defendant moved an application to the plaintiff department to give him permission to start the work. The plaintiff has admitted that the defendant had deposited a sum of Rs. 50,000/- with the plaintiff as security money, out of which a sum of Rs. 30,000/- was deposited by way of T.D.R. and a sum of Rs. 20,000/- was deposited as earnest money, which was turned into security money. The case of the plaintiff was that it had to do the transport work from different transporters due to the reason that defendant had not done the work but the plaintiff could not file the details of the payment made to different transporters and the plaintiff also did not file statement of accounts before the trial court. The office not as well as the notice 23-Kha filed on record were also not proved by the plaintiff. The trial court has given a categorical finding that the plaintiff had failed to prove that the plaintiff suffered loss of Rs. 2,88,030-73 as claimed by the plaintiff, due to the non-performing the work by the defendant. The plaintiff could not prove that how-much money of the defendant was left with the plaintiff in the form of pending bills, out of which the plaintiff adjusted the amount of Rs. 2,88,030-73 as claimed by the plaintiff, due to the non-performing the work by the defendant. The plaintiff could not prove that how-much money of the defendant was left with the plaintiff in the form of pending bills, out of which the plaintiff adjusted the amount of Rs. 1,29,905/- and thereafter a sum of Rs. 1,20,785/- and how the plaintiff was entitled to get a sum of Rs. 37,400/- from the defendant. On issue No.2 the trial court gave a finding that the plaintiff had made deductions and forfeited the security of the defendant illegally. 11. The burden was upon the plaintiff to prove its case by cogent and reliable evidence, but as the plaintiff could not discharge its burden by proving its case by filing the statement of accounts, and the details and receipts of payments made to other transporters for the work taken by the plaintiff, I do not find any illegality in the conclusion drawn by the trial court. 12. The appeal lacks merit and is dismissed. No order as to cost.