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Judgment
By means of this appeal, the judgment dated 30.06.2012 delivered in Money Suit No.126 of 1997 has been challenged by the defendant. To be noted at the outset that pursuant to the said judgment dated 30.06.2012, this suit has been decreed for realizing a sum of Rs.33,46,127.65/- 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.
The respondents being aggrieved filed an appeal being RFA 02 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.
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 05 of 2001, the impugned judgment has been delivered by the trial court decreeing the suit. Being aggrieved, the defendant has filed this appeal.
The plaintiff-respondents filed the suit for recovery of damage/loss amounting to Rs. 33,46,127.65/- 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. from Churaibari, Dharmanagar to F.C.I. go-down 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.
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 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 2½ 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-respondents 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-respondents 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.33,96,127.65/-. 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 12.04.1995.
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 in connection with carrying of the foodgrains from Dharmanagar and Choraibari to Agartala FCI Godown Complex was made on 4.12.94 and the rate was fixed with them at Rs.29.50P per quintal and this agreement was made for 2 years in writing."
The defendant-appellant has thereafter alleged that as the plaintiff-respondents allowed the said two Truck Owners Association and Truck Operators Association at the behest of the State Government for carrying food grains, they did not co-operate with him. The rate of the carriage was much higher and 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.
The defendant-appellant by several letters informed the plaintiff-respondents about that development but they did not take any deterring measure or initiative by engaging 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 of 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 refused to supply 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.2,83,90,98.42/- was paid by the plaintiff-respondent to the Government of Tripura. Thus he has denied the loss as claimed by the plaintiff-respondents.
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 excess payment had 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 it was 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 foodgrains 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 against the damages quantified at Rs.25,40,471.50/- 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.
For purpose of reference, few lines from the written statement is reproduced hereunder:
"Thus, the defendant would have earned a net profit of Rs.14,18,255.30 P. But as the defendant was not allowed by the plaintiffs to continue the work, he had suffered a loss of Rs.14,18,255.30P. Thus, he is entitled to get this amount from the plaintiff."
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.64,261.5/- is due to be paid by the plaintiff- respondents in connection with the running bill. Thus the defendant- appellant is also entitled to get a sum of Rs.64,261.5/- which was deducted without any reason. That apart, a sum of Rs.49,622.85/- is entitled to the defendant-appellant as the admissible transit shortage deducted from the running bills. Thus, the defendant claimed a sum of Rs.17,32,139.66/- from the plaintiff-respondents with interest @ 17.5% per annum with effect from 02.05.1995 for a period closing on 31.12.1997. The interest according to the plaintiff is to be accounted for at Rs 8,08,331.84/-. As the plaintiff- respondents withheld the said sum of Rs. 17,32,39.66/- the defendant-appellant claimed the interest over it. The total counter- claim therefore stood at Rs. 25,40,471.50/-. The further interest was also claimed from 01.01.1988 till realisation from the plaintiff. The said counter-claim was registered as Money Suit No.5/1998 (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.
For purpose of adjudication of the suit, the following issues were framed:
"(i) Is the suit maintainable in its present form and nature?
(ii) Is the suit barred by limitation?
(iii) Is the suit barred by principle of estoppel, waiver and acquiescence?
(iv) Are the plaintiffs entitled to recover the sum of Rs.44,78,891.05 paise?
(v) Are the plaintiff entitled to get interest as claimed in the suit?
(vi) Was there any breach of contract under clause X(b) of the Agreement in question?
(vii) What other relief/reliefs the plaintiff are entitled?
By the impugned judgment dated 30.06.2012, the trial judge has recorded the following observation:
"Accordingly, as per order and direction of the Hon'ble High Court, this court re-admitted this money suit in its original number for fresh trial and asked the plaintiffs and the defendant to adduce further evidence in support of their pleadings. But ultimately on 12.4.12 the plaintiffs declined to adduce any further evidence and on the same day the evidence and on the same day the evidence of the plaintiff's side was closed. Thereafter, on 28.5.12 the defendant also informed this court that he is not interested to examine any further witness in this suit and accordingly on the same evidence of the defendant has also been closed.
Xx xx xx xx
On 13th June, 2012 this court heard argument of both sides at length and at the time of argument Mr. P. Chakraborty, Ld. advocate for the plaintiffs and Mr. S. Ghosh, Ld. advocate for the defendant verbally submitted that previously on 04-09-2001 the Ld. lawyer of the plaintiffs filed a written argument and subsequently, the Ld. lawyer of the defendant also filed a written argument and as such they had nothing more to argue in this suit and the Ld. lawyer of both sides also verbally submitted that this court can pronounc its judgment after perusal of the written argument of both the parties as aforesaid."
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:
"On the perusal of the said agreement I find that defendant Sri Pranab Kr. Saha put his signatures on the said agreement and, therefore, there is no doubt that the defendant had entered into a contract with the plaintiff side after submitting tender for carrying food grains from Churaibari to Agartala go-down complex.
From the Clause-X(c) of the agreement 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 before this court neither the defendant instituted any suit against those organizations for violation of terms and conditions of the alleged contract in between the defendant and those 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, as per Clause X(b), 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 terms and conditions of the agreement and, thereby, the defendant caused huge pecuniary loss and damages to the F.C.I.
However, on perusal of the terms and condition of the agreement it is found that the plaintiffs are/were no way empowered to realize interest on the amount of damages/losses liable to be recovered from the defendant by the plaintiff.
Hence, I am of the opinion that the plaintiffs are entitled to recover the sum of Rs.33,96,127.65 paise (Rupees thirty three lakhs ninety six thousand one hundred twenty seven and paise sixty five) only from the defendant as loss and damages, but the plaintiffs are not entitled to realize any interest on the said amount of money as claimed in the plaint.
Xx xx xx xx
It has already been stated here-in-above that the defendant in his pleading specifically stated that he could not perform his part of contract with the plaintiffs as the Tripura Truck Owners Syndicate and Tripura Truck Operator Association failed to provide required number of trucks to the defendant for carrying the food-grains from Churaibari to Agartala.
It is an admitted fact that the plaintiffs entered into an agreement with the defendant for carrying food-grains under public distribution system and the defendant also admitted in his pleadings as well as oral evidence that the defendant did not carry any food-grains after expiry of 4(four) months from the date of commencement of his contractual carrying works and it is also an admitted fact that the defendant did not invoked any court of law before the plaintiffs seeking necessary redress against the plaintiffs for termination of the contract with the defendant before expiry of stipulated period of two years and therefore, it is clear that there was breach of contract from the side of the defendant under Clause X(b) of the agreement in question.
However, after careful perusal of the evidence in record, I find no other relief or reliefs to grant in favour of the plaintiffs."
[Emphasis added]
On the premises, the suit was decreed for realising a sum of Rs.33,96,127.65/-/-. However, no interest was awarded as further compensation to the plaintiff-respondents. For in-adequacy of the evidence, the counter-claim was dismissed.
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.
"The demand notice and the letter dated 9-4-97 are exhibited and marked as exhibit-1(series). The demand notice was replied by the defendants by his letter dated 21-4-97. This is the letter Marked it as exhibit-2. On our demand letter dated 19 April 2000 Food and Civil Supplies Department informed us the approved rate of transportation from Churaibari to A.D. Nagar on different dates. This is the letter. There are exhibited and marked as exhibit-3(S.O.). We have no other alternative but to arrange the carrying on government approved rate. It takes 6 months time to call new tender and finalise the carrying contract. The defendants informed for non- availability of vehicles. F.C.I. did not object any carrying to the defendants at any time. The defendants also claim compensation against the F.C.I."
DW-1, the appellant, in his cross-examination has introduced the agreement which he signed. The said agreement is but the notice inviting tender signed by the authorised signatory of the plaintiff-respondents and the defendant-appellant [Exbt.A]. For purpose of reference, the entire text of the cross-examination which is relevant for this purpose is extracted hereunder:
"I did contract works of F.C.I. except this work. We used to sign printed tender form in every work. I do not know on what purpose I was asked to carry the foodgrains. This is the copy of the agreement where I signed marked and Exhibited on admission as Ext.-A. In all pages of the agreement my signature not found. It is the same format used in ever tender. It is not a fact that, I did not work as per condition of the tender agreement. Without cancellation of the contract with me F.C.I. cannot give the work to anybody as per agreement."
[Emphasis added]
For perusal of the said agreement, the Clause-X is, as a whole, extracted:
"X. SUMMARY TERMINATION :
(a) In the event of the contractors having been adjudged insolvent or going into liquidation or winding up their business or making arrangements with their creditors or failing to observe any of the provisions of this contract or any of the terms and conditions governing the contract, the Sr. Regional Manager shall be at liberty to terminate the contract forthwith without prejudice to any other rights or remedies under the contract and to get the work done for the unexpired period of the contract at the risk and cost of the contractors and to claim from the contractors any resultant loss sustained or costs incurred.
(b) The Sr. Regional Manager shall also have without prejudice to other rights and remedies, the right, in the event of breach by the contractors of any of the terms and conditions of the contract to terminate the contract forthwith and to get the work done for the unexpired period of deposit or any part thereof from the sum or sums due for any damages, losses, charges, expenses or costs that may be suffered or incurred by the Corporation due to Contractors negligence or unworkmanlike performance of any of the services under the contract.
(c) The contractors shall be responsible to supply adequate and sufficient labour, scales/trucks/carts/any other transport vehicles for loading/unloading, transport and carrying out any other services under the contract in accordance with the instructions issued by the Sr. Regional Manager or an Officer acting on his behalf. If the contractors fail to supply the requisite number of labour, scales and trucks/carts, the Sr. Regional Manager shall at his discretion, without terminating the contract be at liberty to engage other labour, scales, trucks/carts, etc., at the risk and cost of the contractors, who shall be liable to make good to the Corporation all additional charges, expenses, cost or losses that the Corporation may incur or suffer thereby. The contractors shall not, however, be entitled to any gain resulting from entrustment of the work to another party. The decision of the Sr. Regional Manager shall be final and binding on the contractors."
Mr. A. K. Bhowmik, learned senior counsel appearing for the defendant-appellant has submitted that since no fresh evidence was adduced by the parties, there cannot be any different finding inasmuch as by the common judgment dated 05.05.2006 as delivered in RFA 5 of 2001 and RFA 6 of 2001:
"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. C.S. Sinha, learned counsel appearing for the plaintiff-respondents has submitted that the Clause-X has been admitted by the defendant-appellant and the plaintiff-respondents by the letter dated 22.04.2000 written by the Director, Food and Civil Supply have proved the approved rate for carriage of the food grains for breach of the agreement by the defendant-appellant. The said letter dated 22.04.2000 [Exbt.3] has provided the following rates:
From 18/4/95 to 18/7/96 = Rs.36.75 per Qtl.
From 19/7/96 to 5/8/96 = Rs.38.58 per Qtl.
From 6/8/96 to Nov, 1996 = Rs.42.00 per Qtl.
That apart, Exbt.2 series are the delivery challans admitted in the evidence to prove that how much of the quintal were transported after termination of the contract agreement with the defendant-appellant. It will be clear if a calculation is made as has been done by the trial court that the sum of Rs.33,96,127.65/- were paid higher than what ought to have been paid to the defendant- appellant. The plaintiff-respondents in addition to the agreed rate have paid that sum. Therefore, in terms of the Clause-X(b), the defendant-appellant is liable to make good of that damage, losses, charges, expenses or cost that has been incurred by the plaintiff- respondents for his failure in performance of the said contract/agreement.
The submission of Mr. A.K. Bhowmik, learned senior counsel appearing for the defendant-appellant cannot be sustained as it is the defendant-appellant who has introduced the tender document which has been converted to the agreement and introduced in the evidence as Exbt.A. Thus, the Clause-X of the said contract/agreement has been well proved by the plaintiff-respondents. Moreover, by Exbt.2 series the delivery challans, the plaintiff-respondents have proved the transportation cost they have paid. The summary, at the overse of the form of release order, would show the total number of quintals carried against the said delivery challans. Simply by adding the rate, the claim of the plaintiff-respondents can be justified.
From the deposition of DW-1, the counter-claimant, it clearly appears that he has not made any attempt even to prove the loss that he has suffered. Thus, the trial court has correctly dismissed his counter-claim. Even no appeal has been filed against such dismissal by the impugned judgment and order dated 30.06.2012. In view of the above position, we do not find any infirmity in the impugned judgment and decree dated 30.06.2012.
Having held so, this appeal is dismissed being devoid of merit.
Draw the decree accordingly.
There shall be no order as to costs.