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2022 DIGILAW 330 (TRI)

Pranjit Saikia v. Food Corporation of India

2022-08-11

S.G.CHATTOPADHYAY, T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - These appeals, being RFA 17 of 2016 and RFA 22 of 2017 challenging the judgment and decree dated 27.02.2016 in T.S.130 of 2012 and Judgment and decree dated 26.04.2017 in T.S.106 of 2012 passed by the Civil Judge(Sr.Div), West Tripura, Agartala respectively, have been clubbed together for disposal by a common judgment. 2. The appellant contract-transporter in RFA 17 of 2016 having been selected under tender dated 12.08.2009[Exbt.1] floated by the Food Corporation of India (FCI for short)[respondent herein] for transporting food grains on behalf of FCI for two years, started transportation of the same after depositing 50% of the total security deposit on condition of deducting remaining 50% from the admitted bills at 5% as per the tender provision, meanwhile after repeated communications by the Executive Director, FCI, since 01.06.2010, the appellant received letter on 07.06.2010 informing the appellant of possible termination of contract and imposing 'risk and cost terms' obligation under which the appellant would be allowed to carry the load prescribed by the respondent only which was reduced to half of the weight the appellant contractors would carry, as usual, on commencement of the contract work thereby causing huge loss of profit to the appellant. The appellant was compelled to stop transportation of goods in the face of unbearable loss to an unbearable extent. 3. Subsequently, the agreement between the appellant and the respondent was terminated on the face of failure of enforcement of load regulation and fresh tenders were invited on 12.07.2010 for the residual part of the terminated agreement applying the risk and cost condition under Clause X(a),(b) and (c) of the agreement. The appellant was entrusted for transportation of goods by three agreements/contracts on different routes as under: 1) Guwahati to Chandrapur [the work commencing on 01.07.2008] 2) Guwahati to Dharmanagar [the work commencing on 07.12.2009] 3) Guwahati to Aizwal [the work commencing on 20.01.2010] 4) Churaibari to CWC Hafania and Dharmanagar to Hafania. 4. For remaining major part of the works the respondents floated fresh tenders on 13.07.2010 showing new rate per ton at Rs.4,700/- which was 2,001/-(from Changsari to Agartala in the terminated contract) preventing the appellant from contesting in the fresh tender stating them as defaulters. According to the appellant, it was impossible to perform transportation under new rate causing huge loss of profit. According to the appellant, it was impossible to perform transportation under new rate causing huge loss of profit. It is pleaded that the appellant would have earned profit provided under Schedule-2, if that rate was allowed to the plaintiff for performing remaining major part of the works. 5. Invoking the provisions of clause X(c), the respondent, by issuing notice dated 24.11.2010[Exbt.27], also cautioned the appellant that in the event of non execution of the remaining part of the work entrusted, the appellant shall be liable to make good to the respondent and fresh tender dated 13.07.2010[Exbt.21] was floated for engaging new transport contractors for completing the remaining part of the work. 6. Besides withholding and forfeiting the security money as shown in Schedule-1 of the Annexure, the respondents also raised demand for a huge sum of money from the appellant to realize risk and cost by issuing notices dated 01.11.2011, 11.08.2011, 26.06.2011 and 26.08.2011 [Exbt. 26 series]. 7. So far the addition of clause in the said contract regarding load restriction is concerned, the appellant submits that no such clause was found available in the earlier tender notice dated 12.08.2009. Due to the severe restrictions imposed by the Government of Assam in respect of permitted load capacity, according to the appellant, the contract became impossible to perform. Thus the appellant cannot be made liable for any damage whatsoever. 8. The appellant has further submitted that a similar suit being T.S. 106 of 2012 was earlier filed by one Ranjit Kumar Saha [Appellant in RFA 22 of 2017] and hence he prayed for proceeding with the two suits together for avoiding divergent findings. 9. The appellant has categorically stated that he had suffered loss of profit. Apart from that he is also entitled to get back his security deposit as the contract was frustrated without fault. In that circumstances, in the suit, the plaintiff has asked for the following reliefs: i) A decree of declaration that the termination of the contract is improper, illegal and void. ii) a decree of declaration that NIT dated 12.08.2009 did not incorporate the load restriction pursuant to the direction of the apex court and hence the plaintiff suffered enforcing circumstances which led him to stop transportation and hence the said NIT is unfair, unreasonable, illegal and void. ii) a decree of declaration that NIT dated 12.08.2009 did not incorporate the load restriction pursuant to the direction of the apex court and hence the plaintiff suffered enforcing circumstances which led him to stop transportation and hence the said NIT is unfair, unreasonable, illegal and void. iii) a decree of declaration that the letter dated 12.07.2010 imposing risk and cost for the remaining period of the contract is illegal, unfair, and is not sustainable. iv) a decree of declaration that the forfeiture of the security money is illegal and the plaintiff is entitled to the release of the security deposit with interest. v) a decree of declaration that the plaintiff is entitled to a damage caused by the termination to the extent of Rs.3,00,000,00/- in terms of the account provided in schedule II of the plaint with usual cost of the suit. 10. Denying the claim of the appellant the respondents stated that imposition of the restriction cannot be a ground for stopping transportation since the provision in the statute existed since inception and the apex court in Paramjit Bhasin and Others v. Union of India and Others reported in (2005) 12 SCC 642 directed the concerned state Government to implement the direction of law. The respondents have categorically stated in their reply that the tenderer are supposed to quote the rate and abide all statutory provisions. According to the respondent, the security deposit of the appellant was withheld or forfeited to recover losses incurred by the respondent only. 11. According to the respondent, despite caution of risk and cost, the appellant stopped transportation of goods which compelled the respondent to make alternative steps by floating new tender notice on 12.07.2010 to get the work done to meet the severe food crisis in the north east region. 12. Thus the respondent prayed for dismissal of the suit without any interference with their demand. 13. Both the suits were taken up together and decided by the judgment dated 16.04.2017 and dismissed by the Civil Judge, Sr.Div, Court No.2 holding that the appellants have failed to prove their claim and as such they are not entitled to get compensation from the respondents (FCI) due to termination of agreement. 13. Both the suits were taken up together and decided by the judgment dated 16.04.2017 and dismissed by the Civil Judge, Sr.Div, Court No.2 holding that the appellants have failed to prove their claim and as such they are not entitled to get compensation from the respondents (FCI) due to termination of agreement. It has been further held that the communication dated 31.12.2007 terminating the contract with risk and costs under clause X(a), (b) and (c) is not illegal and termination of agreement by letter dated 12.07.2010 does not suffer any infirmities and as such, forfeiting of security money as described in Schedule-I of the plaint by the respondent is also not illegal. Therefore, the counter claimants are not entitled to get recovery of Rs.5,37,79,067.38/- with interest. 14. Being aggrieved, the appellant filed the instant appeal. The respondents herein did not challenge the finding returned by the Civil Judge, Sr.Div., Court No.2. 15. Heard Mr.D.K.Biswas, learned senior counsel assisted by Mr.G.K.Nama, learned advocate appearing for the appellants. Learned counsel contended that the tenders floated for transportation of the food grains did not carry any caution on load restriction. As a result, the appellant offered the rate less than half of the rate that was subsequently offered by the FCI. 16. Mr. Biswas, learned senior counsel further contended that the FCI has not suffered any loss. The FCI paid the contractors at the rate of the contract from October, 2009 to 2010 which was less the rate. The NIT would have been settled at double the rate i.e. the rate settled after the NIT No.10. Thus, prayed to allow the appeal. 17. The standing counsel representing the respondents argued that the appeal is liable to be dismissed as no allegations of grievances made and established against the respondents. The appellant has to strictly adhere to the terms and conditions of the agreement and in the light of the MV Act and Rules and Judgment of apex court they have to transport goods. 18. Admittedly, there cannot be any act or contract contrary to law as per the Motor Vehicles Act and Rules framed there under. Laden or un-laden weight is specifically prescribed and the same is reflected in the Vehicle's papers. The owner of the vehicle or the transporter needs to follow the Motor Vehicles Act and Rules and accordingly transport the goods. Admittedly, there cannot be any act or contract contrary to law as per the Motor Vehicles Act and Rules framed there under. Laden or un-laden weight is specifically prescribed and the same is reflected in the Vehicle's papers. The owner of the vehicle or the transporter needs to follow the Motor Vehicles Act and Rules and accordingly transport the goods. Any act of any authority permitting, willfully or ignorantly, the vehicle to transport the goods more than the permissible limit of laden weight cannot be treated as the right and license to carry excess weight in the goods vehicle. The order of the Apex Court in the case of Paramjit Bhasin and Others v. Union of India and Others reported in (2005) 12 SCC 642 also indicated the same. The observation of the apex court in this regard is as under: '5. Section 200 does not in any way authorize the State Government to permit the excess weight to be carried when on various inspection/detection it is noticed that there is carriage of load beyond the permissible limit. It only gives an opportunity of compounding so that instead of the amounts fixed, lesser amounts can be accepted by the authorised officers. The intention of uploading the excess weight is apparent from a bare reading of the Section 194(1). The liability to pay charge for uploading of the excess load is fixed on one who drives a vehicle or causes a motor vehicle to be driven in contravention of the provisions of Sections 113, 114 and 115. It is to be noted that compounding can be done either before or after the institution of the prosecution in respect of the enumerated offences. Any notification which runs counter to the clear import of Section 194 has no validity. As rightly submitted by learned counsel for the petitioners after compounding the excess load, same cannot be permitted to be carried in the concerned vehicle. Such carriage would amount to infraction of Section 113 of the Act. The object for which the maximum permissible weights have been fixed is crystal clear. On a perusal of the provisions it is clear that the maximum gross weight (in short 'GVB') of the trucks is 16.2 tonnes which enables loading of about 9 tonnes. The load rating is primarily based on the road design, specifications of Indian roads. The object for which the maximum permissible weights have been fixed is crystal clear. On a perusal of the provisions it is clear that the maximum gross weight (in short 'GVB') of the trucks is 16.2 tonnes which enables loading of about 9 tonnes. The load rating is primarily based on the road design, specifications of Indian roads. Rule 95(2) of the Central Motor Vehicles Rules, 1989 (in short 'the Central Rules') prescribes the principles which cover the fixation of GVB of the vehicles. The same reads as follows:- "Rule 95(2): The maximum gross vehicle weight and the maximum safe axle weight of each axle of a vehicle shall, having regard to the size, nature and number of types and maximum weight permitted to be carries by the types as per sub-rule (1), be i. Vehicle rating of the gross vehicle weight and axel weight respectively as duly certified by the testing agencies for compliance of the rule 126, or ii. the maximum vehicle weight and maximum safe axle weight of each vehicle respectively as notified by the Central Government, or iii. the maximum total load permitted to be carried by the tyre as specified in sub-rule (1) for the size and the number of the tyres fitted on the axles(s) of the vehicle. Whichever is less: Provided that the maximum gross vehicle weight in respect of all vehicles, including multi axle vehicles not be more than the sum total of all the maximum safe axle weights put together.' 19. There cannot be any grievance by the transporter against the Food Corporation of India. Having signed the contract, no party is permitted to wriggle out of the contract and further claim for compensation for their damages without performing their obligatory duty in terms of the contract cannot be appreciated. This court is not inclined to grant any compensation of their damages as claimed for to the appellant. 20. Learned counsel of the appellant, Mr. Biswas submitted that the issues in this petition came up before this court for consideration and one of us are party to the said judgment in RFA 14 of 2016 dated 26.02.2021 and prayed to grant the same relief in terms of the said judgment and to return the security deposit. 21. 20. Learned counsel of the appellant, Mr. Biswas submitted that the issues in this petition came up before this court for consideration and one of us are party to the said judgment in RFA 14 of 2016 dated 26.02.2021 and prayed to grant the same relief in terms of the said judgment and to return the security deposit. 21. In view of the same and following the judgment cited to supra, the present appeal is also disposed of granting relief to the limited extent of directing the respondents to return the security deposit to the appellants within two months. 22. In terms of the above, the appeal stands partly allowed.