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2017 DIGILAW 1845 (RAJ)

State of Rajasthan v. Mahabir Prasad Kothari

2017-08-17

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT : Virendra Kumar Mathur, J. This civil regular First Appeal under section 96 CPC has been filed against the judgment & decree dated 07.07.2015 passed by the Additional District Judge No.1, Sri Ganganagar in Civil Original Suit No.60/2005 whereby suit for recovery and permanent injunction filed by the respondent-plaintiff was allowed. 2. Briefly stated, a suit for recovery of Rs. 2,58,500/- was filed by the plaintiff-respondent before the District Judge, Sriganganagar, which was later on transferred to the court of Additional District Judge No.1, Sri Ganganagar. It was stated that the respondent-plaintiff was registered as temporary Class-C Contractor by order passed by the Superintending Engineer, Water Resources Division, Sriganganagar vide order dated 01.04.2002.It was further stated that the plaintiff-respondent applied for as many as 8 tenders including 4 short-term tenders, as mentioned in para 3 of the suit. It was also claimed that the last date for submitting the tenders was 03.04.2002. The rates quoted by the respondent-plaintiff for all 8 works were lowest and therefore, it was awarded 6 works, against which he deposited earnest money to the tune of Rs. 1,80,000/- through Bankers cheque. In pursuance of said selection of the plaintiff, the Executive Engineer, Ganga Canal Link, Sri Ganganagar issued work order for all 6 works as mentioned in the suit and Agreement numbers were assigned to the works. It was stated that the respondent-plaintiff was asked to execute the Agreements with the Executive Engineer within 10 days of the issuance of the work order i.e. on or before 27.05.2002 but the respondent-plaintiff ailed to sign the Agreements. Thus, the defendant-appellants initiated proceedings against the plaintiff-respondent under Conditions No.11 and 13 of the Notice Inviting Tender. 3. In the suit, it was claimed by the plaintiff-respondent that as the work orders have been issued and as the defendant-appellant has not permitted to execute the works, therefore, the plaintiff was not at fault and a suit for aforesaid relief was filed by the respondent-plaintiff. In the written statement filed by the defendant-appellant, it was submitted that the plaintiff-respondent did not execute the Agreement within the stipulated period i.e. on or before 27.05.2002, therefore, the defendant initiated proceedings against the plaintiff under Conditions No.11 and 13 of the Tender. It was stated that the plaintiff was not in position to execute the works and started correspondence on hypothetical grounds. It was stated that the plaintiff was not in position to execute the works and started correspondence on hypothetical grounds. It was claimed that the plaintiff vide letter dated 05.06.2002 intimated the appellant-defendant that the works allotted to their firm were to be started on 27.05.2002 but they deployed their men and machinery on 21.05.2002 but the work could not be started due to order of the Superintending Engineer. In the written statement it was also claimed that at the time of giving work order to the plaintiff, it was specifically stated that - "you are requested to please attend this office to complete the form agreement within 7 days of receipt of this letter" but the plaintiff did not turn up. Not only this, vide letters dated 12.06.2002, 30.06.2002 and 04.10.2002 the plaintiff was informed to execute the agreement but it did not turn up. 4. On the basis of pleadings of the parties, 6 issues were framed and after trial, the suit was decreed vide order dated 07.07.2015. Being aggrieved by this judgment & decree dated 07.07.2015, the appellant-defendant has preferred this appeal on the ground that the trial court committed grave illegality while deciding issues No.1 and 2. It was contended that merely using the words "you are requested to please attend this office to complete the form agreement within 7 days of receipt of this letter" can not be a ground to decree the suit. It was specifically stated before the trial court that as per rule 340 Part-I of the Rules of PWD, the plaintiff-respondent was under obligation to execute the agreement but he failed to do so and therefore, the defendant-appellant was right in initiating proceedings against the plaintiff under conditions No.11 and 13 of the Tender Notice. It was also pleaded that the trial court has wrongly decided issues No.3 and 5. The trial court has wrongly held that there was no condition for the plaintiff to appear before the defendant along with stamp of Rs. 500/- each for execution of the agreement. The fact of the matter remains that it was duty of the plaintiff to remain present before the appellant-defendant for execution of the agreement. The trial court has wrongly held that there was no condition for the plaintiff to appear before the defendant along with stamp of Rs. 500/- each for execution of the agreement. The fact of the matter remains that it was duty of the plaintiff to remain present before the appellant-defendant for execution of the agreement. However, the plaintiff failed to appear before the defendant for execution of the agreement despite repeated requests and therefore, the appellant was left with no option but to invoke conditions No.11 and 13 of the Tender Notice. 5. The trial has not considered this aspect. It was further contended that as the plaintiff neither executed the agreement nor started the work, action under clause 11 of the Tender Contract was initiated against the plaintiff, against which amount recovered is only Rs. 2,31,674/- in consonance with the rules prevailing at that time and clauses of the Notice Inviting Tender. Rest of the amount, to the tune of Rs. 3,08,26/- is yet to be recovered from the plaintiff, for which a case was registered under the PDR Act. The trial court without considering this aspect of the matter has passed the impugned judgment & decree. 6. In the context of arguments raised by parties, perused the pleadings and the evidence placed on record. 7. So far as contentions regarding findings on issues No.1 and 2 is concerned, from a perusal of record it is evident that in terms of the Notice Inviting Tender issued by the Executive Engineer, work orders Exhibits 8 to 13 were issued. In those works orders, it was written that "you are requested to please attend this office to complete the form agreement within 7 days of receipt of this letter". From this statement, it is very much clear that the Agreement between the parties was yet to be completed. For completion of the agreement, party has to appear before the Executive Engineer within 7 days of the receipt of the letter. Before execution of the Agreement, whatever letters exchanged between the parties, were proposal and counter-proposal. Unless these are accepted and agreement is signed, there was no concluded agreement. The trial court has rightly considered all the evidence available on record and has rightly decided issues No.1 and 2 against the defendant and in favour of the plaintiff. 8. Before execution of the Agreement, whatever letters exchanged between the parties, were proposal and counter-proposal. Unless these are accepted and agreement is signed, there was no concluded agreement. The trial court has rightly considered all the evidence available on record and has rightly decided issues No.1 and 2 against the defendant and in favour of the plaintiff. 8. So far as contentions of the appellant against decision on issues No.3 and 5 are concerned, from perusal of pleadings and evidence placed on record it is clear that as per Exhibits 8 to 13 written by the Executive Engineer, the respondent-plaintiff was required to attend the office of the Executive Engineer to complete formal agreement within 7 days of the receipt of the letters. Under section 7 of the Contract Act, acceptance was to be absolute and not a conditional acceptance. In the present case, the Executive Engineer in his work order placed two conditions for acceptance of the tender viz. to appear before him to complete the formalities within 7 days. The issue of the work order was subjected to completion/execution of formal agreement, without which the parties were not under any obligation. 9. It was alleged that for non-completion of the agreement, the respondent-plaintiff was liable under condition No.11 read with condition No.13 of the Tender Notice. In the present case, defendant's witness Balram Tak has specifically stated – ^^bl dk;Z ds vuqcU/k dk fu’iknu ugha gqvk gSA** When there was no execution of a lawfully enforceable agreement then the parties are under no obligation. After execution of a validly enforceable agreement if any party commits breach of the agreement then only it can be held liable, otherwise not. The trial court has rightly appreciated the pleadings and evidence placed on record in deciding issues No.3 and 5 also in favour of the plaintiff and against the defendant-appellant. The respondent has also placed reliance upon decision of this Court in S.B. Civil Second Appeal No.161/2015 (State of Rajasthan & others v. M/s Gopal Ram Gumani Ram) decided on 14.03.2016 wherein similar issue has been decided. 10. In the opinion of this Court, there is no ground for interference in the judgment & decree dated 07.07.2015 passed by the trial court. The appeal is devoid of merit and the same is hereby dismissed.