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Gauhati High Court · body

2015 DIGILAW 625 (GAU)

Sunita v. Oil India Ltd.

2015-05-25

N.CHAUDHURY

body2015
JUDGMENT The judgment and decree dated 17.05.2008 passed by the learned Civil Judge, Dibrugarh in Money Suit No. 4/1989 has been called in question in this appeal. By that judgment and decree, the learned trial Court decreed the suit for Rs. 1,81,743.69 alongwith interest @ 12% per annum. By filing this appeal, the appellant has claimed that the decreed amount is not sufficient and decree ought to have been passed for further sum of Rs. 2.5 crores against the defendants/respondents. 2. Plaintiff, M/s Sunita Transport Agency, a registered partnership firm instituted Money Suit No. 4/1989 on 20.01.1989 in the Court of the learned Assistant District Judge, Dibrugarh against Oil India Limited and its two functionaries stating that by contract dated 21.08.1986, signed between the plaintiff and the defendant No. 2, the defendant No. 1 company allotted job of collection and transportation of POL (HSD, LDO, Kerosene, etc) from the wells of the defendant No. 1 in Tinsukia in approved bowsers and to deliver and decant the same at the specified place of activities at Duliajan, Moran, Arunachal Pradesh and other oil wells sites for a period of one year from 01.09.1986 to 31.08.2987. The said contract was renewable for further period of one year mutually. Accordingly, contract was extended up to 31.08.1988 vide letter dated 29.01.1987 without change of the terms and conditions of the previous contract. According to the plaintiff, out of bill submitted by it for the aforesaid period, plaintiff was entitled to get Rs. 4,11,281.28 and out of it, a sum of Rs. 1,81,743.69 remained outstanding till date. 3. The defendants failed and neglected to pay the amount to the plaintiff details whereof was given in Schedule – 1 to the plaint. Apart from that, the defendants without terminating the contract with the plaintiff, discontinued service and rather awarded contract in question to IOL (AOD), Digboi to engage tank, lorry for carrying out the job. This, according to the plaintiff, amounted to breach of contract and so plaintiff was entitled to compensation. 4. The plaintiff served notice dated 28.10.1998 upon the defendants by Registered Post requesting them to make payment not only of Rs. 1,81,743.69 being the balance against outstanding bills and also a sum of Rs. 2.5 crores as compensation for loss and injuries caused against the plaintiff alongwith interest, etc. 4. The plaintiff served notice dated 28.10.1998 upon the defendants by Registered Post requesting them to make payment not only of Rs. 1,81,743.69 being the balance against outstanding bills and also a sum of Rs. 2.5 crores as compensation for loss and injuries caused against the plaintiff alongwith interest, etc. The defendants did not respond to the notice and so being compelled, suit was instituted by the plaintiff claiming for a decree of Rs.2,51,91,285.19 with future interest @ 18 % per annum calculated from the date of institution of the suit till realization and also for a direction of refund of FDR of Rs. 10,000/- pm Allahabad Bank which was deposited as security by the Plaintiff. 5. Upon institution of the aforesaid suit, notice was issued to the defendants. They appeared and submitted written statement jointly denying the case of the plaintiff in entirety. Rather the defendants stated that plaintiff was liable to make payment of liquidated damage of Rs. 1,40,400/- as mentioned in paragraph 6 of the written statement. After deduction of the liquidated damage, total amount payable to the plaintiff was only Rs.2,28,043.83 where from income tax at source amounting to Rs. 4,647/-w as also liable to be deducted. Upon making the deduction, balance amount was paid to the plaintiff and so nothing was due to be paid to the plaintiff. In regard to demand of the plaintiff for refund of the security deposit, it is stated in paragraph 10 of the written statement that FDR has already been released but the plaintiff did not collect the same from the office of the defendants. 6. The defendants denied any liability to make payment or any compensation and/or other amount and prayed that the suit be dismissed with special cost of Rs. 10,000/- to the defendants under Section 35 A of the Code of Civil Procedure, 1908. In Annexure – A of the written statement, defendants furnished statement of accounts to show the amount billed and the amount payable to the plaintiff. 7. Upon consideration of the aforesaid pleadings of the parties, the learned trial Court framed as many as 7 issues and the same are furnished below: 1. Whether the suit is maintainable in law and in fact? 2. Whether there is cause of action for this suit? 3. Whether the plaintiff is entitled to a decree as prayed for? 4. 7. Upon consideration of the aforesaid pleadings of the parties, the learned trial Court framed as many as 7 issues and the same are furnished below: 1. Whether the suit is maintainable in law and in fact? 2. Whether there is cause of action for this suit? 3. Whether the plaintiff is entitled to a decree as prayed for? 4. To what relief, if any the parties are entitled to? 5. Whether the plaintiff is registered partnership firm and Smti. Sabitri Devi Sukhla is a partner thereof? 6. Whether the suit is barred by limitation? 7. Whether defendants made payment in full and final settlement of plaintiff’s dues? 8. Both parties examined one witness each and both of them adduced some documents. One Ram Kawal Shukla was examined as PW – 1. He proved firm registration certificate as Ext. 1 and stated on oath that he is the husband of the partner, Smti Sabitri Devi Sukhla. He has personal knowledge about the contract between the parties and he is also constituted Attorney vide Ext. 2. According to him, the contract between the plaintiff and the defendants was for a period of one year and the same was entered into on 21.08.1986. Ext. 3 is the contract, in which, Ext. 3(1) to Ext. 3(4) are his signatures as constituted attorney of the plaintiff firm. Ext. 3(5) is the signature of the defendant No. 2 on behalf of the defendant No. 1 company. Vide Ext. 4 the contract was extended for a further period of one year and this was done on being satisfied with the service rendered by the plaintiff firm. Because of Ext. 4, plaintiff performed contract work and furnished bill of Rs. 4,11,281.28, details of which is furnished as part of the plaint and out of this amount, a sum of Rs. 1,81,743.69 still remains unpaid. The defendants did not terminate the contract, but entrusted work to IOC (AOD) for which, a letter dated 17.10.1988 was given to the defendants. Ext. 5 is that letter in which Ext. 5(1) is his signature. This notice was sent by the defendant by Registered Post and Ext. 6 is the postal receipt and Ext. 7 is the acknowledgement due for the same. Apart from that, various letters were sent to the defendants from time to time, which are Exts. 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, etc. 5(1) is his signature. This notice was sent by the defendant by Registered Post and Ext. 6 is the postal receipt and Ext. 7 is the acknowledgement due for the same. Apart from that, various letters were sent to the defendants from time to time, which are Exts. 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, etc. He proved documents upto Ext. 18 to show that correspondences were made with the defendants for this amount. 9. The officer of the defendants wrote Ext. 19 letter to the plaintiff. He claimed that as the defendants stopped giving work to the plaintiff, it sustained loss, for which Ext. 21 notice was given to the plaintiff through Advocate. K. Bose. Ext. 21(1) and Ext. 21(2) are the signatures of Advocate, K. Bose. The defendants did not acknowledge the receipt of this letter. The defendants, therefor, are liable to make payment of Rs. 1,81,743.69 alongwith interest @ 18% per annum and they are also liable to refund the fixed deposit of Rs. 10,000/- and in addition compensation of Rs. 2.5 crores. 10. The defendants cross-examined this witness at length when he admitted that the annexure of the bill was not available with the records and that there was no mention anywhere as to which amount was payable against which work. He stated that after deduction of the amounts from his bill Rs. 1,81,743.69 was only paid to him. Liquidated damage was also deducted from the amount. He signed on the Certificate of Payment whereby liquidated damage was deducted from his dues. He stated that liquidated damage of Rs. 1,40,400/- was deducted from him. He denied that he was only entitled to Rs. 3,71,190.89 in all but it should be Rs. 4,11,281.28. He stated that liquidated damage was deducted from his bills as per the terms of the contract. He also admitted that there was no clause in the contract to the effect that work contracted to the plaintiff cannot be given to any other contractor and some of his works were given to IOC (AOD). As per the contract, only after report submitted every day on behalf of the plaintiff, work is allotted to it. He denied the suggestion that as plaintiff’s representative did not report for work, the same was allotted to other contractor. As per the contract, only after report submitted every day on behalf of the plaintiff, work is allotted to it. He denied the suggestion that as plaintiff’s representative did not report for work, the same was allotted to other contractor. He admitted that alongwith the plaint, the name of the driver, conductor and the details of the expenditure alongwith paper of vehicles were not submitted by him. However, he claimed that his goodwill to the tune of Rs. 2.5 crores was lost for which he made claim of this amount in the suit. 11. One Pratap Chandra Hazarika was examined as DW – 1. He stated that he worked in the defendant No. 1 company from 1956 to 1992 and in the material time, he was working as Assistant in the office of the defendants. From January, 1988 he was working as a Head Assistant in the office. The plaintiff had a contract with the defendant company on the basis of an agreement dated 21.08.1986 and the same was monitored from his office. As per the agreement, the plaintiff was supposed to carry materials of the defendants and as per the procedure, representative of the plaintiff used to report to the office every day. Whenever the representative used to come, work was allotted as per duty slip. Duty slip contained the information as to when and where the oil is to be carried. It also contained the amount of oil carried by the vehicle. As per the agreement, plaintiff was supposed to attend the office every day and the agent of the plaintiff used to report to him only. He wrote the requisitions and used to furnish copy to the plaintiff’s representative. Nobody else, except him issued such requisition slip. Mr. K.S. Singh was his superior officer. He died. Even if someone met Mr. K.S. Singh for work, he used to refer the party to himself. The plaintiff’s representative continued meeting him till first part of February, 1988 for getting requisition slip, and thereafter, stopped coming. As the plaintiff stopped coming to the office for getting work, he informed this to the superior officer, and thereafter, office boy was sent to the office of the plaintiff asking them to take requisition slip for getting work. The plaintiff was also informed that if transportation of oil is stopped, then operation well of various fields will closed. As the plaintiff stopped coming to the office for getting work, he informed this to the superior officer, and thereafter, office boy was sent to the office of the plaintiff asking them to take requisition slip for getting work. The plaintiff was also informed that if transportation of oil is stopped, then operation well of various fields will closed. Office boy was sent by defendant company to the plaintiff 2/3 times but even thereafter, plaintiff did not send its representation. Thereafter, being compelled IOC Limited (AOD) was entrusted with the job of carrying contract. Later on, K.S. Singh informed him that henceforward IOC (AOD) would carry oil of the defendants. Accordingly, oil was being transported by IOC (AOD). Thereafter, plaintiff or its agent did not visit the office of the defendants asking for requisition slip. However, contract with the plaintiff was not terminated if plaintiff’s agent would have come asking for work, they would have been entrusted with work. One Dubey, representing the plaintiff firm used to come for collecting requisition slip and he used to come to the defendants only. It is not a fact that defendants did not give allotment to the plaintiff. Having consulted the records, it appears that plaintiff were entitled to get only Rs. 3,71,190.83 from the defendants. Ext. A is the statement of bills of the plaintiff which has been annexed with the written statement. It is signed by Group General Manager and Ext. A(1) is the signature which the witness identified. After plaintiff submitted bills, the same used to be verified by both sides and then the payable amount used to be determined. Plaintiff’s bill for Rs. 3,90,204.79 on verification was found Rs. 3,71,190.83 only. Plaintiff accepted the amount and signed on the Certificate of Payment. Thereafter, Rs. 1,40,400/- was deducted towards liquidated damage and Rs. 4,647/- towards income tax. The balance amount was paid to the plaintiff. The liquidated damage was deducted from the entitlement to the plaintiff for late delivery and short-delivery of the goods. 12. This witness was cross-examined by the plaintiff. In course of cross-examination, he stated that he did not bring any certificate to show that he was working with the defendant company at the relevant time. He used to work in the Foreign Purchase Department of the said office prior to 1998 and before that he was working in Moran Branch. 12. This witness was cross-examined by the plaintiff. In course of cross-examination, he stated that he did not bring any certificate to show that he was working with the defendant company at the relevant time. He used to work in the Foreign Purchase Department of the said office prior to 1998 and before that he was working in Moran Branch. Prior to 1988, one N.C. Chakraborty worked as Head Clerk. He admitted that he did not know if any other paper was submitted by the defendants other then Ext. A. He also in course of cross-examination stated that at the time of preparation of the written statement, he was not consulted and he was not aware that when Ext. 3 was prepared. Ext. 3 was initially executed for one year and plaintiff was not given any notice for termination of the contract. As per the Ext. 3, if contract was to be terminated during continuance of the contract, giving of notice to the plaintiff was necessary but he could not say as to whether there is any provision to the contract requiring issuance of notice to the plaintiff if anybody else was to be entrusted with the work during continuance of the contract. Plaintiff was never informed about entrusting IOC with the work of transporting oil. The man of IOC did not come to him for collecting duty slip. He was not aware as to how challans were issued to the IOC. Calculation to the billed amount was done by accounts section of the office of the defendants. He admitted that calculation of liquidated damage was not furnished in the suit. Certificate of Payment was also not produced. Sometime, except Dubey some other persons used to come for collection of requisition slip. The fact that no one came for collecting requisition slip after February, 1988 was informed orally and not by any letter. He could not say which office boy was sent for informing the plaintiff as long gap of 10 years had passed in the meantime. There was no agreement for sending office boy and it is not mentioned in the official file as well. He denied the suggestion that no office boy was sent and that he did not inform the superior officer about failure on the part of the plaintiff to collect duty slip. He also denied the suggestion that plaintiff was deprived from duty slip willfully. He denied the suggestion that no office boy was sent and that he did not inform the superior officer about failure on the part of the plaintiff to collect duty slip. He also denied the suggestion that plaintiff was deprived from duty slip willfully. He could not say as to whether defendants gave any reply to Ext. 5 to Ext. 11 because the same did not come within his jurisdiction. He came for deposing the suit without being summoned. As Ext. 1 was not prepared by him and he could not say who prepared the same. Later on he said that this was prepared by Accounts Department and it does not show liquidated damage. He did not have any other records other than Ext. A. There was no record in regard to verifying the bills. He could not say as to whether bill was submitted for Rs. 4,11,281.28 but he maintained the stand that out of Rs.3,71,090/- plaintiff was paid the balance after deducting the liquidated damage. This amount was not paid to the plaintiff in one day and it was given on a number of days. He admitted that before deposing in the case, he did not consult the accounts section and without consulting the records he cannot say as to what payment was made to the plaintiff. He denied the suggestion that defendants had no authority to make deduction of liquidated damage. He also denied the suggestion that plaintiff sustained loss due to discontinuance of work by the defendant company. 13. Upon consideration of the aforesaid materials available on record, the learned trial Court decided all the issues in favour of the plaintiff. Issue No. 3 has been decided virtually without any discussion holding that the plaintiff is entitled to decree for recovery of Rs. 1,81,743.69 alongwith refund of FDR of Rs. 10,000/- and the interest @ 12% per annum on the aforesaid amount of Rs. 1,81,743/69. However, how this calculation has been arrived at has not been considered by the learned trial Court. Be that as it may, the defendants do not appear to have preferred any appeal against this judgment and decree before this High Court. This appeal, therefore, shall be confined to the question of compensation of Rs. 2.5 crores only as this appeal as been preferred by the plaintiff challenging non consideration of the claim. 14. I have heard Mr. Be that as it may, the defendants do not appear to have preferred any appeal against this judgment and decree before this High Court. This appeal, therefore, shall be confined to the question of compensation of Rs. 2.5 crores only as this appeal as been preferred by the plaintiff challenging non consideration of the claim. 14. I have heard Mr. G. N. Sahewalla, learned Senior Counsel assisted by Mr. P. Deka, learned counsel for the appellant and Mr. M.Z. Ahmed, learned Senior Counsel assisted by Mr. A.M. Dutta, learned advocate for the respondents. I have perused the evidence led by the parties and the documents relied by them. 15. Mr. G.N. Sahewalla, learned Senior Counsel for the appellant submitted that the learned trial Court having arrived at a finding that great financial loss was caused to the plaintiff firm because of discontinuance of work as many as 10 Nos. of oil tankers belonging to the plaintiff become ideal thereby, ought to have considered the claim of the plaintiff for compensation of Rs. 2.5 crores as claimed in the plaint. The said prayer has not received any consideration whatsoever and so the appeal is liable to be allowed in respect of that prayer only. 16. Par contra, Mr. M.Z. Ahmed, learned Senior Counsel appearing for the respondent argued that although the plaintiff made a claim of Rs. 2.5 crores towards compensation but no material fact as to how the amount was payable has been furnished by the plaintiff. Even in course of evidence, the sole witness of the plaintiff has not disclosed as to how the compensation of Rs. 2.5 crores was estimated. Since material facts are there neither in the pleading nor in evidence, the learned trial Court committed no error for not granting the same though prayed. 17. To understant the submissions made by the learned Senior Counsel of both sides, I have gone through the plaint as a whole. In the plaint, a statement of account has been furnished as Annexure – 1. It shows the details of the bills made in favour of the defendant company on various dates and sum total of the same has been shown to be Rs. 4,11,281.28 and after deduction of the liquidated damage of Rs. 2,24,890.59, the amount payable by the plaintiff has been shows as Rs. 1,81,743.69. It shows the details of the bills made in favour of the defendant company on various dates and sum total of the same has been shown to be Rs. 4,11,281.28 and after deduction of the liquidated damage of Rs. 2,24,890.59, the amount payable by the plaintiff has been shows as Rs. 1,81,743.69. In the plaint, the plaintiff has succeeded to give the material facts and particulars as to how it is entitled to a sum of Rs. 1,81,743.69. It is established law that plaint must contain concise statements as to material fact. It does not require to contain material particulars which may be furnished in course of evidence. Order VI Rule 2 of the Code of Civil Procedure, 1908 requires that every pleading shall contain, and contain only a statement in a concise form of material facts of which the party pleading relates for his claim or defence as to the case may be. A party is not supposed to disclose the evidence in the pleading. 18. Now what is a material fact is no longer res-integra. It is settled law that basic facts which are required to be proved for getting relief in a case constitute material facts for the purpose of the suit. Here in this case, plaintiff claimed compensation of an amount of Rs. 2.5 crores for loss of goodwill in the market. This is because, as per the version of the plaint, the defendants discontinued allotment of work to the plaintiff without terminating the contract and this had an adverse consequence on the goodwill of the plaintiff in the market. Such statements itself is not sufficient to form an opinion as to the quantum of the loss of goodwill. Plaintiff was duty bound to show as what was the goodwill of the plaintiff in the market and to what extent the same was damaged and if so as to how the defendants were responsible for such damage. These three ingredients would have formed the material fact to make out claim of compensation of the plaintiff on this count. This is because once the plaintiff would have disclosed these facts, it would have been the duty of the defendant to deal with the same either by admitting or denying the same. These three ingredients would have formed the material fact to make out claim of compensation of the plaintiff on this count. This is because once the plaintiff would have disclosed these facts, it would have been the duty of the defendant to deal with the same either by admitting or denying the same. Unless the facts are disclosed, defendants will be handicapped from placing materials in defence thereof and that is why disclosure of facts at least on the aforesaid ingredients would be material facts to make out a cause of action for compensation to the tune of Rs. 2.5 crores or for any other amount. Plaintiff has miserably failed to disclose the material facts and in that view of the matter, plaintiff disentitled itself of any adjudication in respect thereto. 19. Pleading of material fact is an essential precondition for trial. Because only after being aware of the material facts, the parties are to go for trial of the suit. No amount of evidence which is not pleaded can be considered by the Court and so to place evidence in support of such claims substratum has to be laid by making necessary pleading to that effect. It is established law that in the absence of material fact disclosed in the plaint, Court can dismiss the suit. If any reference is necessary, one can take help to the case of Hari Chand Vs. Daulat Ram, reported in AIR 1987 SC 94 . 20. Having gone through the plaint and the evidence led by the plaintiff, it appears that the plaint is deficient in disclosing the material fact as to claim of compensation from the defendants, not to speak of sum of Rs. 2.5 crores. Under such circumstances, the implied dismissal of the suit in respect of the claim of such compensation by impugned judgment and decree does not warrant interfere and accordingly the appeal is dismissed as devoid of any merits. 21. No order as to cost. Send back the records.