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2017 DIGILAW 227 (TRI)

Pranab Kumar Saha v. Food Corporation of India

2017-05-12

S.TALAPATRA, T.VAIPHEI

body2017
JUDGMENT : Talapatra, J. By means of this appeal, the judgment dated 10.07.2012 delivered in Money Suit No.127 of 1997 has been challenged by the defendant. To be noted at the outset that pursuant to the said judgment dated 10.07.2012, this suit has been decreed for realizing a sum of Rs. 26,24,403.20/- from the appellant as for his breach of the contract, the respondents have claimed to have suffered loss to that extent. Initially, the suit was dismissed by the judgment and decree dated 22.09.2000 by the trial court, the Civil Judge, Senior Division, Court No.2, Agartala, West Tripura. 2. The respondents being aggrieved filed an appeal being RFA 06 of 2001 to the Gauhati High Court and by the common judgment dated 05.05.2006, the appeal was partly allowed and the suit was remanded for fresh adjudication in the following terms: "15. In the facts and circumstances of the case, as narrated above, and having regard to the respective claim canvassed in the suits, we feel that it would be appropriate to remit the case to the learned Trial Court for decision afresh after giving the parties a chance to adduce further evidence-both oral and documentary. 16. For reasons above, we allow both the appeals and set aside the common judgment and decree dated 22nd September, 2000 and remit the matter back to the learned Trial Judge for decision afresh within a period of three months from the day of appearance of the parties before him after giving adequate opportunities to both the parties to adduce fresh evidence as indicated above." In terms of the said direction delivered in RFA 06 of 2001, the impugned judgment has been delivered by the trial court allowing the suit. Being aggrieved, the defendant has filed this appeal. 3. The plaintiff-respondents filed the suit for recovery of damage/loss amounting to Rs. 26,24,403.20/- for breach of contract under clause-X(b) of the agreement dated 29.11.1994. The pleaded case as emerges is that in response to the notice inviting tender dated 21.07.1994 floated by the plaintiff-respondent No.1 for engaging the transporting contractors for carrying food grains etc. under Public Distribution System from Rail Head/F.S.D., Dharmanagar to Agartala for a period of two years. The defendant-appellant participated in the said process and he was found the lowest tenderer. As a result, he was given the contract for the said work. 4. under Public Distribution System from Rail Head/F.S.D., Dharmanagar to Agartala for a period of two years. The defendant-appellant participated in the said process and he was found the lowest tenderer. As a result, he was given the contract for the said work. 4. The defendant-appellant and the plaintiff-respondents entered in an agreement dated 29.11.1994 in writing and the defendant-appellant deposited a sum of Rs. 1,00,000/- by way of fixed deposit as security. As per the agreement the appellant commenced the contractual carriage in the month of December, 1994. But he suspended the work unilaterally after February, 1995. Thus he continued the transportation for about 2 months in lieu of the agreed tenure of two years. The supply of food grains under the public distribution system, for such breach by the defendant-appellant, fell short at Agartala and other parts of the state. Despite being persuaded by the plaintiff-respondent by means of letters and telegrams to restore the carrying work of food grain the appellant did not. Such request did not bring any change whatsoever in the attitude of the defendant-appellant. Under such compelling circumstances and in order to face the emergent situation, the plaintiff-respondent requested the Government of Tripura for lifting the food grains as the defendant-appellant failed to perform his part of the contract. But for such carriage, the plaintiff-respondent had to pay the higher rate in comparison to the rate agreed by the defendant-appellant, resulting in huge pecuniary loss to the tune of Rs. 26,24,403.20/-. As per the terms of the agreement, the plaintiff-respondents were entitled to the alternative transportation by other agencies under Clause-X of the said agreement at the risk and cost of the defendant-contractor. Thus the plaintiff-respondents filed the suit for realizing the said damage they suffered for sheer breach of contract by the defendant-appellant on serving a demand notice dated 09.04.1995. 5. The defendant-appellant by way of filing the written statement has clearly admitted the position, but given the reason for suspending the carrying as follows: "The defendant before starting of transportation work in question had entered into a contract with the Tripura Truck Owners Syndicate and the Tripura Truck Operators Association on 04.12.1994 for supplying the trucks under their organizations for carrying the foodgrains of the FCI under the tender agreement and on the basis of their agreement, those two transport organization were bound to supply the trucks to the defendant. The agreement made by the defendant with the Tripura Truck Owners Syndicate and the Tripura Truck Operators Association was as made for carrying the destination as recorded in the agreement dated 20.08.1994 under reference @ Rs. 29.50 P per quintal. 6. The defendant-appellant has thereafter has alleged that the plaintiff-respondents allowed the said two Truck Owners Association and Truck Operators Association at the behest of the Government for carrying food grains. The rate of the carriage was much higher as the defendant-appellant could not discharge his obligation under the said agreement dated 29.11.1994. Thereafter, he has alleged against the plaintiff-respondents that the plaintiff-respondents were responsible for loading and unloading of the consignments of the PDS food grains. But the labourers who were engaged by the plaintiff-respondents did not cooperate with the defendant-appellant as they used to demand tips at a high rate per truck. 7. The defendant-appellant by several letters informed the plaintiff-respondents about that development but they did not take any deterring measure or initiative to engage a new batch of labourers to load and unload the trucks promptly. The defendant-appellant claimed that he executed the carriage till 05.04.1995, but when the plaintiff-respondent engaged those two transporting organisations to carry the food grains covered by the said agreement dated 29.11.1994, the transportation by the defendant-appellant collapsed totally as those two transport organisations with whom the defendant-appellant had entered in the agreement for supply of the required number of vehicles they refused to supply any more the vehicles for carrying the PDS food grains in connection with the said agreement dated 20.08.1994. For breach of the agreement, entered by the appellant with those two organisations, he failed to fully discharge his obligation. Even the defendant-appellant has denied that the total amount of Rs. 1,85,70,130.79/- was paid by the plaintiff-respondent to the Government of Tripura. Thus he has denied the loss as claimed by the plaintiff-respondents. 8. The defendant-appellant had claimed that he was always ready and willing to perform the work under the terms of the said agreement, but for the breach of the agreement by the plaintiff-respondent, he could not complete the carriage. Thereafter he has asserted that if any alleged excess payment has been made by the plaintiff-respondents, the defendant cannot be made liable for such damage/loss. The appellant has categorically denied his failure to perform his obligation in terms of the said agreement dated 29.11.1994. Thereafter he has asserted that if any alleged excess payment has been made by the plaintiff-respondents, the defendant cannot be made liable for such damage/loss. The appellant has categorically denied his failure to perform his obligation in terms of the said agreement dated 29.11.1994. The defendant-appellant has also raised a plea that the agreement was never terminated. However in the para-14, he has asserted in his written statement as under: "The defendant was not at all aware of the termination of the contract work by the plaintiff No.1, Sr. Regional Manager, FCI, Shillong, with the defendant, the Security Money lying with the plaintiffs is still in force and never forfeited by the plaintiffs. There was no compliance on the part of the plaintiffs of the clause X of the Notice Inviting Tender/Agreement. As such, all the actions taken by the plaintiffs in engaging the Govt. Agency in carrying food-grains are illegal and without jurisdiction." As necessary corollary, he has stated that the subsequent carriage was illegal and that caused damage to him. Thus he raised a counter-claim for a decree of Rs. 15,51,872.00/- which included the profit he would have garnered from the transportation work. The rest of the amount, according to him, is for the loss he has suffered. 9. For purpose of reference, few lines from the written statement is reproduced hereunder: "Thus, the defendant would have earned a net profit of Rs. 8,20,358.97 P. But as the defendant was not allowed by the plaintiffs to continue the work, he has suffered a loss of Rs. 8,20,358.97P. Thus, he is entitled to get this amount from the plaintiffs." That apart, he has asked for the refund of the money that he had deposited or has been deducted by the plaintiff-respondents. According to him, he had total security deposit of Rs. 2.5 lakhs. But out of that security deposit, a sum of Rs. 2,00,000/- according to him is lying with the plaintiff-respondents and that amount has not been refunded to the defendant-appellant. Further, a sum of Rs. 38,736.41/- is due to be paid by the plaintiff-respondents in connection with the running bill. Hence, the defendant-appellant is also entitled to get a sum of Rs. 38,736.41/- which was deducted without any reason. Thus the defendant claimed a sum of Rs. 10,58,95.38 from the plaintiff-respondents with interest @ 17.5% per annum with effect from 02.05.1995 for a period closing on 31.12.1997. Hence, the defendant-appellant is also entitled to get a sum of Rs. 38,736.41/- which was deducted without any reason. Thus the defendant claimed a sum of Rs. 10,58,95.38 from the plaintiff-respondents with interest @ 17.5% per annum with effect from 02.05.1995 for a period closing on 31.12.1997. Thus the interest according to the plaintiff has been accounted at Rs 4, 93,777.69/-. As the plaintiff-respondents withheld the said sum of Rs. 10,58,95.38/- the defendant-appellant claimed the interest over it. The total counter-claim therefore stood at Rs. 15,51,873.00/-. The further interest was also claimed from 01.01.1988 till realisation from the plaintiffs. The said counter-claim was registered as Money Suit No.2/1998 (Counter-claim) and both the Money Suit and the counter-claim were tried and adjudicated together in terms of the said order of the High Court. 10. For purpose of adjudication of the suit, the following issues were framed: "(A) Whether the suit maintainable in its present form? (B) Whether the plaintiffs and defendants exhibited any agreement in pursuance of the tender of the plaintiffs and if so, whether the defendant has performed his duties according to the terms and condition of the agreement? (C) Whether the plaintiffs are entitled to any relief, if so, upto what extent?" In terms of the judgment dated 05.05.2006 delivered by the High Court in RFA No.5 of 2001 and RFA No.6 of 2001, the following additional issue was framed by the trial court: "Whether as per terms of clause X(b) of the agreement dated 29.11.1994 the respondent (defendant) in M.S. No.127/1997 is liable to compensate the corporation for loss suffered by it on account of additional expenses incurred in transporting the food-grain through government agency?" 11. By the impugned judgment dated 10.07.2012, the trial judge has recorded the following observation: "On receipt back of the case dockets, on 5.6.06 SD this court framed an additional issue in M.S.(CC) 02 of 1998 as per direction of the Hon'ble High Court and asked both the parties to adduce their fresh evidence in the aforesaid two suits and initially both the parties expressed their willingness to adduce additional evidence in support of their respective pleadings in both the suits, and the parties to this suit also enjoyed so many adjournments for that purpose, but ultimately on 29th May, 2012 the parties in M.S. 127 of 1997 declined to adduce any further evidence in support of their respective cases. Similarly, in M.S.(CC) 02 of 1998 the parties to that suit expressed their unwillingness before this court on 12.4.2012 A.D. to adduced further evidence in support of their respective pleadings. So, on 16th June, 2012 this court heard argument of both sides at length in connection with the present suit and the counter suit." 12. On hearing and having appreciated the evidence on record, both oral and documentary, issues were decided in favour of the plaintiff-respondents on observing as under: "From the evidence in record it is found that at the time of entering into the agreement with the plaintiffs, it was clear to the defendant what kind of services he was bound to provide for performance the part of his contract and the defendant was very much aware about the consequence of his failure to perform his part of contract. But from the pleadings and the documentary evidence adduced by the defendant it is found that the defendant indirectly admitted the fact of his failure to perform the contract for want of trucks and in that regard the defendant raised question against the conducts of the aforesaid two transport organization of Tripura with whom the defendant entered into a contract for supplying huge numbers of trucks for carrying the food-grains from Churaibari to Agartala. But surprisingly, the defendant neither submitted any copy of agreement with those transport organizations for violation of terms and conditions of the alleged contract in between the defendant and those transport organizations and thereby the defendant himself supported the case of the plaintiffs. Moreover, the defendant being a carrying contractor was very much aware about the involvement of huge number of trucks for implementation of his contractual work and keeping the said fact in his mind, the defendant dropped his tender form and ultimately got the work order from the plaintiffs. Defendant was also very much aware about the terms and conditions of the agreement and he knew the fact that if the defendant failed to perform his part of contract, the Senior Regional Manager of F.C.I. shall have authority to terminate the contract with the defendant and to realize the damages and losses from the defendant and also to forfeit the security deposit. So, after acceptance of those terms and condition of the agreement, the defendant had no scope to deny the performance of his part of contract raising/showing different pleas and grounds and as such the defendant was no doubt negligent in carrying the food-grains from Churaibari to Agartala as per the agreement and, thereby, the defendant caused huge pecuniary loss and damages to the F.C.I." In the premises as above, the suit was decreed for realising a sum of Rs. 26,24,403.20/-. However, no interest was awarded as further compensation to the plaintiff-respondents. For in-adequacy of the evidence, the counter-claim was dismissed. 13. After analysing the oral evidence given by one Sri Sankar Chandra Sarkar for the plaintiff-respondent (PW-1), the trial court has recorded the following observation. "It is also an admitted fact though the plaintiffs submitted the original tender agreement dated 21.7.1994 by firisti on 04.08.2008, but the plaintiff did not examine any further witnesses to prove the contents of that agreement in spite of the opportunity given by the Hon'ble High Court." The defendant-appellant in his cross-examination as DW-1 has admitted that he had no grievance and complaint against any Officer of the F.C.I, as such the defendant had not stated anything for proving his counter-claim. 14. Mr. A.K. Bhowmik, learned senior counsel appearing for the defendant-appellant has submitted that no fresh evidence was adduced by the parties and the trial court has observed that the agreement dated 20.08.1994 has not been proved by adducing any witness. Mr. Bhowmik, learned senior counsel has brought the following finding of the Gauhati High Court in the common judgment dated 05.05.2006 delivered in RFA 5 of 2001 and RFA 6 of 2001 to our notice: "It is true that for want of original agreement, the learned Civil Judge was not in a position to appreciate the terms and conditions of Clause-X(b) of the agreement to determine the liability of the respondent. For this purpose, in the following order an appropriate issue is also considered necessary: Whether as per terms of Clause X(b) of the agreement dated 29.11.1994 the respondent (defendant) in M.S. No.127/1997 is liable to compensate the Corporation for loss suffered by it on account of additional expenses incurred in transporting the food grains through Government agency?" Mr. For this purpose, in the following order an appropriate issue is also considered necessary: Whether as per terms of Clause X(b) of the agreement dated 29.11.1994 the respondent (defendant) in M.S. No.127/1997 is liable to compensate the Corporation for loss suffered by it on account of additional expenses incurred in transporting the food grains through Government agency?" Mr. Bhowmik, learned senior counsel therefore argued that when that clause has not been proved how the impugned judgment and the money decree can be sustained. 15. Mr. C.S. Sinha, learned counsel appearing for the plaintiff-respondents did not place any befitting reply to that aspect. 16. The law is well settled. section 91 of the Indian Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act. The apex court in Tulsi & Ors. v. Chandrika Prasad reported in (2006) 8 SCC 322 , has unambiguously observed that Section 91 of the Evidence Act mainly forbids proving of the contents of a writing otherwise than by writing itself and merely lays down the 'best evidence rule'. It, however, does not, prohibit the parties to adduce evidence, in a case, the deed is capable of being construed differently to show how they understood the same. Here there is no dispute regarding interpretation of any clause. It is to determine the liability in terms of the Clause-X(b) of the agreement dated 20.08.1994. But the said agreement has not been on the records of evidence. 17. Since there was no plea of oral agreement in any manner and such, there is no relevance of Section 92 of the Evidence Act. There is no pleading of the oral evidence even. Thus, we are of the view that the plaintiff-respondents have utterly failed to prove their case by saddling contractual liability on the appellant and accordingly this appeal stands allowed. There is no pleading of the oral evidence even. Thus, we are of the view that the plaintiff-respondents have utterly failed to prove their case by saddling contractual liability on the appellant and accordingly this appeal stands allowed. However, we are not inclined to give any cost to the appellant in the given circumstances. 18. In the result, the impugned judgment and decree are set aside. As consequence thereof, the suit fails and is dismissed. 19. Prepare the decree accordingly and send down the LCRs forthwith.