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2014 DIGILAW 1 (GUJ)

Swati Iat Utpadak Audyogik Sahakari Mandali Ltd. v. Gujarat Housing Board.

2014-01-06

M.R.SHAH, R.P.DHOLAKIA

body2014
JUDGMENT R. P. DHOLARIA, J. The appellant original plaintiff (hereinafter referred to as the plaintiff) has preferred present appeal under Section 96 of the Code of Civil Procedure, 1908 challenging the judgment and order dated 15th February, 2000 passed by the learned Judge, City Civil Court, Ahmedabad (hereinafter referred to as the learned Judge) in Civil Suit No.4194 of 1985, whereby the learned Judge has dismissed the suit of the plaintiff. 2. The facts in nutshell are as under: 2.1 The plaintiff is a co-operative society registered under the Gujarat Co-operative Societies Act, 1961. The respondent herein original defendant (hereinafter referred to as the defendant) invited tenders for the work of manufacturing and supplying of bricks of standard size. After scrutiny, the tender of the plaintiff was accepted and consequently work order came to be issued in favour of the plaintiff on 29th June, 1981. The work entrusted was required to be completed on or before 31st December, 1981. It is the case of the plaintiff that the plaintiff was required to quote price for one crore bricks with basic rate of coal and labour and the defendant was expected to provide land for manufacturing of bricks for a maximum period of five years. The possession of the land was handed over to the plaintiff on 10th December, 1981. Thus, according to the plaintiff, the plaintiff got the possession of the land after about six months during which time the price of the materials, labour charges, etc. was increased. It is also the case of the plaintiff that the plaintiff also paid Rs.90,000/- as security deposit for the performance of the contract. It is the case of the plaintiff that the defendant had accepted only one crore bricks and the rest of the bricks manufactured were lying at the site and even the price of 1 crore bricks as agreed was not paid to the plaintiff. It is also the case of the plaintiff that the contract was for a period of five years and therefore he spent huge amount to develop the land. The plaintiff had thus claimed Rs.32,82,518/- under different heads along with interest @ 18% per annum from the date of the notice. 3. It is also the case of the plaintiff that the contract was for a period of five years and therefore he spent huge amount to develop the land. The plaintiff had thus claimed Rs.32,82,518/- under different heads along with interest @ 18% per annum from the date of the notice. 3. As against this, it is the case of the defendant that the contract was limited for manufacturing of one crore bricks only and no promises or assurance was given to the plaintiff that after receiving one crore bricks, the work of manufacturing of more bricks would be awarded to the plaintiff. It is also denied that the period of contract work was five years. It is also contended that the period consumed for cleaning the land cannot be given set off since the entire land of 22 acres was not required by the plaintiff for the purpose of manufacturing the bricks. It is also denied that no bricks were lying at the site and payment as agreed of one crore bricks was not made. 4. The learned Judge raised following points for determination at Exh.37. “1) Whether the plaintiff proves that the contract between the parties was for the period of five years? 2) Whether the plaintiff proves that the defendant has committed breach of contract? 3) Whether the plaintiff proves that the plaintiff is entitled to get Rs.32,82,518.80 ps. as claimed or any amount from the defendant? 4) Whether the plaintiff is entitled to get the relief as prayed for? 5) What order and decree? P 5. The learned Judge has recorded the findings as under: Å“1) In the negative 2) In the negative 3) In the negative 4) In the negative 5) As per final order. 6. We have heard Shri Shelat, learned advocate for the appellant and Shri Ravani, learned advocate for the respondent. 7. We have also perused the record and proceedings as well as judgment and decree passed by the learned trial Court. 8. Shri Shelat, learned advocate for the appellant plaintiff has drawn our attention to the oral as well as documentary evidence on the record so as to argue that the learned trial Judge has committed grave error in dismissing the suit. 8. Shri Shelat, learned advocate for the appellant plaintiff has drawn our attention to the oral as well as documentary evidence on the record so as to argue that the learned trial Judge has committed grave error in dismissing the suit. He has further argued that the plaintiff is the society engaged in the business of manufacturing the bricks only, whereas, the defendant Board is engaged in construction of housing units at various places and therefore a contract for supply of bricks has been entered into between the plaintiff and the defendant. However, the defendant has committed the breach of the contract, in consequent whereof the plaintiff has occurred a loss of Rs. 32,82,518/-. It is also submitted that the defendant has not performed its part of the contract and therefore the defendant is liable to make good the damages caused to the plaintiff on account of breach of the contract. 9. Per contra, Shri Ravani, learned advocate for the defendant has strongly opposed the appeal and vehemently argued that the oral as well as documentary evidence on the record is clearly indicative of the fact that the contract was limited to the extent of supply of one crore bricks only and the parties have never entered into a contract for about five years for supply of further bricks. It is submitted that after delivery of one crore bricks as per the stipulated rate, the plaintiff was supposed to quote a fresh rate for further supply of bricks. However, after supply of one crore bricks, admittedly, the plaintiff has never quoted fresh price list for further supply and therefore there is no question of breach of contract as the contract entered into between the parties was for the supply of one crore bricks only and the defendant has performed its part of the contract. It is also submitted that as there is no breach of contract, the question of damages on the ground of alleged breach of contract on the part of the defendant does not arise and the learned Judge has committed no error in dismissing the suit of the plaintiff. 10. In order to properly re-appreciate the controversy involved in the present appeal, it is necessary to narrate very brief oral as well as documentary evidence, which is relevant for the purpose of deciding the present appeal. 11. The plaintiff society has examined its Member Secretary Mr. 10. In order to properly re-appreciate the controversy involved in the present appeal, it is necessary to narrate very brief oral as well as documentary evidence, which is relevant for the purpose of deciding the present appeal. 11. The plaintiff society has examined its Member Secretary Mr. Gyanchandra Ayodhyaprasad at Exh.70 and he has deposed that the plaintiff society submitted the tender before the defendant to manufacture one crore bricks per year and the work was to continue for a period of five years. The tender of the society was accepted as the lowest price was quoted. The work order was issued to the plaintiff on 29.06.1981. The possession of the land was entrusted to the plaintiff on 12.11.1981. Thereafter the plaintiff had to work for about six months for cleaning the land as the land was covered with thorny bushes. In the first year, the plaintiff manufactured and delivered 50 lakhs bricks to the defendant. Similarly, on the second year, the remaining 50 lakhs bricks were manufactured and delivered to the defendant. Thus, in all one crore bricks were delivered by the plaintiff to the defendant. In the cross-examination, he has admitted that the plaintiff had a written contract with the defendant which is at Exh.103, which is binding to the parties to the contract. 12. The defendant has examined Brabhdev Jokhan Chonke and Harindra Bhanushanker Bhatt, the officials of the defendant Board vide Exhs.168 and 192 respectively. 13. On overall consideration of the materials on record, it appears that this is a pure and simple case wherein the plaintiff has set up its case that the contract between the parties was for manufacturing bricks for a period of five years, whereas, according to the defendant, the contract between the parties was for manufacturing one crore bricks only and after manufacturing and supplying one crore bricks, the plaintiff was at liberty to quote fresh price to the defendant and the defendant was at liberty to accept or not to accept the same. 14. As per the clear admission of the witness of the plaintiff, there was a written contract between the parties to the contract. The schedule of materials in form D, attached to the contract, clearly mentions: “The contractor shall quote for 1 crore with basic rate of coal and labour. Gujarat Housing Board will spare land for manufacturing of bricks for maximum period of five years. The schedule of materials in form D, attached to the contract, clearly mentions: “The contractor shall quote for 1 crore with basic rate of coal and labour. Gujarat Housing Board will spare land for manufacturing of bricks for maximum period of five years. For remaining years, they may quote rates on the basis of coal rates prevailing plans, price, labour charges, GHB will have choice to consider the offer for manufacture purpose for one year or more period. 14.1 The bare reading of the aforesaid clearly conveys that what was agreed between the parties to the contract was for manufacturing of one crore bricks and the maximum period was extendable up to five years. It is also clearly indicated that after receipt of 1 crore bricks as per the quoted price in the tender, it was left to the discretion of the defendant Board whether to accept or not to accept the fresh price list which the plaintiff was required to quote. However, admittedly, the plaintiff has not tendered fresh price list after supply of one crore bricks to the defendant Board. It is also clearly revealing from the letter dated 17.02.1981 annexed to the agreement at Exh.103 that the contract between the parties was for manufacturing one crore bricks only. The plaintiff has not tendered any documentary evidence to show that the contract was not related to manufacture of one crore bricks only but it was for continuous period of five years. On the contrary, the aforesaid documentary evidence is clearly suggesting that there was a contract for manufacturing and supplying one crore bricks only. The witness of the plaintiff itself at Exh.70 has clearly and categorically admitted that there was a written contract for manufacturing one crore bricks only. He has also admitted that as soon as that contract came to an end the defendant conveyed them to remove the materials used for manufacturing the bricks from the land provided to the plaintiff. 15. In view of the aforesaid oral as well as documentary evidence in the nature of written contract, it is clearly established that the contract entered into between the parties was only to the extent of manufacture of one crore bricks only. 15. In view of the aforesaid oral as well as documentary evidence in the nature of written contract, it is clearly established that the contract entered into between the parties was only to the extent of manufacture of one crore bricks only. The documentary evidence in the nature of ledger clearly indicates that the plaintiff has manufactured and delivered one crore bricks and the payment as stipulated has been made by the defendant is clearly established from the ledger book. 16. From the above, it is clearly established that the contract entered into between the parties was only to the extent of manufacture of one crore bricks only which was extendable up to five years subject to subsequent fresh quotation and acceptance on the part of the defendant. The witness of the plaintiff himself has admitted that after delivery of one crore bricks no fresh quotation was tendered to the defendant and there was no fresh contract. Therefore, as soon as the plaintiff delivered one crore bricks to the defendant, the contract came to an end for want of further proposal/quotation for manufacturing the bricks on the part of the plaintiff. As the contract was limited to the extent of manufacturing one crore bricks only, it cannot be said that the defendant has committed any breach of contract. Even otherwise also in absence of any further contract of manufacturing bricks beyond one crore, the question of breach of contract does not arise. 17. The plaintiff miserably failed to prove that the contract was for a period of five years and the plaintiff was to manufacture more than one crore bricks for the defendant, consequently the various claims advanced based on the alleged breach of the contract for the recovery of 28 lakhs bricks which were lying at the site as well as price rise and other damages are baseless and simply not sustainable as there is no breach of contract on the part of the defendant. 18. We have re-appreciated the evidence on record. We have also gone through the impugned judgment and decree passed by the learned trial Court and we are in complete agreement with the findings and reasons recorded by the learned trial Court. 19. For the reasons recorded hereinabove, the plaintiff miserably failed to prove the breach of contract and the various claims based upon the alleged breach of the contract. 19. For the reasons recorded hereinabove, the plaintiff miserably failed to prove the breach of contract and the various claims based upon the alleged breach of the contract. The entire claim of plaintiff was based upon the alleged breach of contract. In view of the aforesaid evidence on record, the case of the plaintiff proved to be baseless. In the result, the appeal deserves dismissal and accordingly it is dismissed and the judgment and decree passed by the learned trial Court in Civil Suit No.4194 of 1985 is hereby confirmed. R & P be transmitted back to the learned trial Court. Appeal dismissed.