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2017 DIGILAW 16 (KER)

C. C. VARGHESE v. FOOD CORPORATION OF INDIA

2017-01-04

ANIL K.NARENDRAN, V.CHITAMBARESH

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JUDGMENT : Anil K.Narendran, J. The appellant is the plaintiff in O.S.No.133/1991 on the file of the Subordinate Judge's Court, Kozhikode, a suit for recovery of money filed against the respondents/defendants directing the 1st respondent/1st defendant to pay a sum of Rs.3,67,048.50 deducted from various bills together with interest @12% per annum. On receipt of summons the defendants entered appearance and filed written statement disputing the plaint claim. 2. On the side of the plaintiff PWs.1 and 2 were examined and Exts.A1 to A23 were marked. On the side of the defendants Ext.B1 was marked. After considering the pleadings and evidence on record the trial court decreed the suit in part allowing the plaintiff to recover a sum of Rs.89,789.50 as the amount unauthorisedly withheld by the defendants together with interest @6% per annum from the date of suit till realisation with proportionate costs. Feeling aggrieved by the judgment and decree of the trial court dated 5.11.1995 to the extent of limiting the decree to Rs.89,789.50 as against the total claim of Rs.3,67,048.50, the plaintiff is before this Court in this appeal. 3. We heard the arguments of the learned counsel for the appellant/plaintiff and also the learned Standing Counsel for the respondents/defendants. 4. During the course of arguments the learned counsel for the appellant/plaintiff would confine his arguments with regard to two claims, i.e., recovery of Rs.1,00,326/- deducted by the defendants as per bill Nos.23 and 24 dated 16.4.1986 and a further sum of Rs.29,729.50 deducted as per bill Nos.38 and 39 dated 19.5.1986. 5. Going by the pleadings and evidence on record the plaintiff was appointed as a loading/unloading, handling and transport contractor at the West Hill Depot of the 1st defendant Corporation for a period of two years from 22.1.1986 to 21.1.1988 as per the tender conditions entered into between the parties. According to the plaintiff, on receipt of the work order he made arrangements to start work from 22.1.1986. However, due to the unreasonable demands made by the head load workers at the West Hill Depot he could commence the work only by 3.2.1986, after a settlement was arrived at, at the intervention of the District Labour Officer concerned. Though the plaintiff had requested the defendants not to place any wagons till a settlement is arrived at, wagons were placed at the godown. Though the plaintiff had requested the defendants not to place any wagons till a settlement is arrived at, wagons were placed at the godown. Alleging that those consignments were re-booked, notices were issued to the plaintiff to show cause for not recovering demurrage charges, re-booking charges, etc. During the whole period of contract a total sum of Rs.5,78,944.50 was deducted from various bills as demurrage charges, re-booking charges, etc. Out of the said amount a sum of Rs.1,00,326/- was deducted towards re- booking charges as per bill Nos.23 and 24 dated 16.4.1986, which relates to the period January and February 1986 when there was strike by the employees demanding higher wages. A further sum of Rs.29,729.50 was deducted towards demurrage charges as per bill Nos.38 and 39 dated 19.5.1986, which relates to the period April 1986. 6. The deduction of Rs.1,00,326/- for the period January and February 1986 was immediately on the plaintiff taking up the contract. According to the plaintiff, though he was issued with the work order on 12.1.1986 to commence the work from 22.1.1986 he could not commence the work because of the agitation by the employees demanding higher wages and this dispute could finally be settled only on 2.2.1986, which according to the plaintiff was a reason beyond his control. 7. The Annexure to Ext.A3 tender dated 15.10.1985 contains the terms and conditions governing the contracts for loading/unloading, handling and transport of food grains, etc. at the godowns of the 1st defendant Corporation at Calicut. Clause XVII of the said terms and conditions deals with delays, strikes, etc. The said clause provides that, the contractors will not be responsible for delays which may arise on account of reasons beyond their control of which the Senior Regional Manager shall be the final judge. Strikes by contractor's labourers on account of any dispute between the contractors and their labourer as to wages or otherwise will not be deemed to be a reason beyond the contractor's control and the contractor shall be responsible for any loss or damage which the 1st defendant Corporation may suffer on this account. 8. Ext.A4 settlement memorandum would show that the dispute between the plaintiff and the labourers were settled on 2.2.1986 in the presence of the Labour Officer, Kozhikode by which 20% of the wages was agreed to be increased. 8. Ext.A4 settlement memorandum would show that the dispute between the plaintiff and the labourers were settled on 2.2.1986 in the presence of the Labour Officer, Kozhikode by which 20% of the wages was agreed to be increased. The said settlement was arrived at between the plaintiff and different labour unions at the interference of the District Collector, Kozhikode, the District Manager of the 1st defendant Corporation at West Hill Depot and also the Labour Officer, Kozhikode. The plaint averments in paragraph 4 would show that, the 1st defendant Corporation does not have anything to do with the labourers engaged by different contractors for loading and unloading work at its West Hill Depot. The plaintiff has admitted that these labourers were engaged by different contractors from time to time as a convention/customary practice. It has come out from the evidence of PW2, the present Secretary of one of the labour unions, who was examined at the instance of the plaintiff, that the labourers have formed a co-operative society and that society is doing loading and unloading work on contract basis. PW2 has also admitted that, the 1st defendant Corporation has not recognised these labourers as their employees and a demand in this regard is pending for long. PW2 has also deposed that whenever new contractors are appointed by the 1st defendant Corporation the unions used to make demands for increase of labour charges and only on accepting such demands the labourers start the loading and unloading work. 9. Appendix II to Ext.A3 tender would show that, at the time of entering into the contract in question, the plaintiff had 15 years experience in similar contracts in other depots. Therefore, conclusion is irresistible that he had entered into the contract in question with due knowledge of the convention/customary practice followed in the West Hill Depot of the 1st defendant Corporation in engaging labourers for loading and unloading work. Further, Clause XVII of the terms and conditions specifically excludes the disputes between the contractor and the labourers as a reason beyond the control of the contractor to get rid of the liability by way of loss or damage, which the Corporation may suffer on this account. 10. Further, Clause XVII of the terms and conditions specifically excludes the disputes between the contractor and the labourers as a reason beyond the control of the contractor to get rid of the liability by way of loss or damage, which the Corporation may suffer on this account. 10. As far as the deduction of Rs.1,00,326/- towards re- booking charges for the period January and February 1986, as per bill Nos.23 and 24 dated 16.4.1986, is concerned the plaintiff had issued Ext.B1 letter dated 2.7.1986 addressed to the Senior Regional Manager of the 1st defendant Corporation stating that they are withdrawing all their contentions regarding the re-booking charges of Rs.1,00,326/- and requested the Corporation to make the payment as early as possible. The contents of the said letter are extracted hereunder; "With reference to your notice under reference regarding the re-booking charges of Rs.1,00,326/- (Rupees one lakh three hundred and twenty six only) we would like to inform you that we are withdrawing all our contentions and we shall be highly obliged if you would make the payment as early as possible." 11. As evident from Ext.B1 letter, the plaintiff had withdrawn all its contentions regarding deduction of a sum of Rs.1,00,326/- towards re-booking charges in order to enable the defendants to make payment of other amounts due to it for the relevant period, i.e., January and February 1986. The plaintiff, having withdrawn all such contentions, had absolved the defendants from the alleged liability to refund the said amount. Having done so, the plaintiff cannot later turn around and contend that the defendants are not legally bound to return Rs.1,00,326/- deducted towards re-booking charges for the period January and February 1986. Therefore, we find absolutely no illegality in the rejection of the said claim by the trial court. 12. The deduction of a further sum of Rs.29,729.50 was towards demurrage charges as per bill Nos.38 and 39 dated 19.5.1986, which relates to the period April 1986. With regard to this deduction, there is no specific averments in the plaint as to how this deduction was made, except a bare statement in paragraph 5 that such deduction was without any reason. However, there are certain general statements in the plaint regarding the non-availability of sufficient space in the godown and also the demand made by one of the trade unions refusing to pile the bags more than 10 bags height. However, there are certain general statements in the plaint regarding the non-availability of sufficient space in the godown and also the demand made by one of the trade unions refusing to pile the bags more than 10 bags height. Exts.A6, A8 and A9 letters and the evidence of PW2 would show that there were some disputes between the plaintiff and the labourers in stacking the bags. In Ext.A22 memorandum of settlement arrived at in the presence of the Joint Labour Commissioner it has been agreed to stack 100 Kgs. bags upto 13 bags height and 95 Kgs. bags upto 15 bags height, with effect from 3.4.1986. Ext.A3 tender provides for seperate rates for stacking bags upto 25 bags height. Therefore, if there was any dispute with the labourers in stacking the bags it was for the plaintiff to settle such disputes with the intervention of the statutory authorities. It is the duty of the 1st defendant Corporation to ensure proper supply of food grains and other foodstuffs all over the country. Therefore, the 1st defendant is under no legal obligation to keep in abeyance the placing of wagons whenever demanded by a loading and unloading contractor on account of labour unrest in a particular depot. 13. In the instant case, the deduction made by the defendants for a sum of Rs.29,729.50 was towards demurrage charges which relates to the period April 1986. The defendants have not chosen to adduce any oral or documentary evidence in order to prove that they have paid a sum of Rs.29,729.50 to Railways towards demurrage for the said period. Having failed to establish such payment of demurrage charges to Railways, by adducing cogent and convincing evidence, the defendants are not entitled to withhold 29,729.50 payable to the plaintiff. In that view of the matter we hold that the defendants are liable to return the plaintiff is sum of Rs.29,729.50 deducted towards demurrage charges for the period April 1986, as per bill Nos.38 and 39 dated 19.5.1986, together with interest at the rate of 6% per annum from the date of suit till realisation. In the result this appeal suit is disposed of modifying the judgment and decree of the trial court to the limited extent indicated as above. The plaintiff shall be entitled to proportionate costs in this appeal.