S C JAIN vs STATE OF M P AND ORS.

Appellant/original plaintiff has filed this second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 2.5.2011 passed by the Fifth Additional District Judge, Bhopal in Civil Appeal No.51-A/2010 affirming the judgment and decree dated 28.1.2010 passed by the Eighth Civil Judge ClassII, Bhopal in Civil Suit No.239-A/2008, whereby the suit filed by the plaintiff for declaration and perpetual injunction against the defendants was totally dismissed.

Admittedly, the original defendant/respondent No.4 had invited tenders for purchase of unuseful hipropicksor liquid of Radiological Department of defendant No.3 Gandhi Medical College, Bhopal and plaintiff''s tender was accepted by the defendants and by order no.1459/62, a work order was issued by the relating defendant directing the plaintiff to purchase 3800 litres unuseful hipropicksor.

The appellant filed a suit before the trial Court on pleadings that the defendant No.4 Superintendent and Joint Director, Hamidia Hospital, Bhopal had invited tenders for purchase of unuseful hipropicksor of defendant No.3 Gandhi Medical College, Bhopal. The tender filed by the plaintiff was accepted and by above mentioned order, plaintiff was directed to purchase 3800 litres unuseful hipropicksor. According to the executed agreement between the plaintiff and the defendants, upto 23.11.2007, 3800 litres unuseful hipropicksor was to be sold to the plaintiff. Defendants No.3 and 4 committed breach of the term of the agreement and closed the supply of hipropicksor liquid to the plaintiff. Despite getting price of Rs.43,350/- for 1700 litres hipropicksor from the plaintiff, only 1200 litres hipropicksor was delivered to plaintiff. Before expiry of the term of the agreement between the parties, which was upto 23.11.2007, the relating defendants have invited tenders from other persons to purchase the relating unuseful hipropicksor. Thus, the plaintiff filed suit for reliefs of declaring the second tender invitation issued by the relating defendant as illegal and for perpetual injunction against the defendants restraining them to sell the unuseful hipropicksor to any other person and to direct the defendants for delivery of 3440 litres hipropicksor at the rate of Rs.25.50 per litre and to adjust the paid price of 400 litres hipropicksor, which was not supplied.

Defendants No.3 and 4 in their pleadings rebutting the adverse pleadings pleaded that according to executed agreement only 2345 litres hipropicksor at the rate of Rs.25.50 per litre was to be sold to the plaintiff upto the date 23.11.2007 and its total price Rs.59,797/- was to be deposited in the office of defendants No.3 and 4, but the plaintiff himself did not comply with these conditions of the agreement and by a letter, plaintiff intimated to the relating defendant that he would be able to purchase only 1700 litres hipropicksor and its value Rs.43,350/- was deposited by the plaintiff and remaining 645 litres hipropicksor was not taken by the plaintiff upto 23.11.2007 and its price was also not deposited, thus the defendants reinvited the tenders, but the reinvited tenders were opened on 10.12.2007 whereas the term of the plaintiff''s agreement had expired on 23.11.2007. Thus, the plaintiff is not entitled to any relief and his suit be dismissed.

Learned trial Court framed issues and for appellant/plaintiff Sudhir Kumar (P.W.1) examined himself before the trial Court and for defendants, Dr.D.K.Pal (D.W.1), Joint Director and Superintendent, Hamidia Hospital, Bhopal was examined. After hearing, the trial Court recorded its findings that it was not proved that the defendants are not having right to sell hipropicksor liquid to any person other than the plaintiff; it was also not proved that reinvitation of tender by the defendants was illegal; it was not proved that plaintiff is entitled to purchase in total 3440 litres hipropicksor from defendants at the rate of Rs.25.50 per litre; it was also not proved that the plaintiff is entitled for adjustment of price of 400 litre of hipropicksor and in result, plaintiff''s suit was dismissed. Regular appeal filed by the plaintiff also remained unsuccessful.

Learned counsel for the appellant vehemently contended that both lower Courts have not properly and legally appreciated and analysed the oral and documentary evidence produced before the trial Court and appellant/plaintiff''s suit should have been decreed by each Court.

Plaintiff''s witness Sudhir Kumar (P.W.1) who has signed as dealer for the plaintiff on plaint proved letters (Ex.P.2 and Ex.P.5) sent by the defendant No.4 to the plaintiff and from conjoint reading of Ex.P.2 and Ex.P.5, it is clear that in terms of the invited tender, plaintiff was permitted to lift the unuseful hipropicksor liquid after use in x-ray department on depositing of Rs.59797.50. Thus from Ex.P.2 and Ex.P.5 themselves, it was not proved that the plaintiff was entitled to purchase in total 3440 litres of unuseful hipropicksor liquid during the term of his agreement, which was effective upto 23.11.2007. Sudhir Kumar (P.W.1) himself admitted in para 13 of his cross-examination that on 15.12.2006, he informed the Joint Director and Superintendent of Hamidia Hospital, Bhopal by a letter that due to lack of container and means, he is capable to lift only 1700 litres hipropicksor. He clearly denied the suggestion given by the defendants'' counsel in para 14 that on 16.12.2006, he himself had given receipt regarding receiving of 1700 litres hipropicksor and deposed that he had given only receipt for receiving 1300 litres of liquid and had demanded the remaining 400 litres of above mentioned liquid. He clearly deposed that he had deposited price only for 1700 litres hipropicksor.

Dr.D.K.Pal (D.W.1) deposed that according to agreement, plaintiff had to lift 2345 litres hipropicksor upto 23.11.2007 after depositing its value Rs.59,797/-, but the plaintiff lifted only 1700 litres hipropicksor and deposited only its value Rs.43,350/-. Letter dated 15.12.2006 sent by the plaintiff has been proved as Ex.D.10. According to the receipt (Ex.P.6) dated 15.12.2006 of the office of defendant No.4, Rs.43,350/- was deposited on that date by the plaintiff for purchasing 1700 litres hipropicksor and Dr.D.K.Pal (D.W.1) has proved a receipt which is dated 16.12.2006 pasted in the register of office of relating defendant. According to the written portion of Ex.D.12, 1700 litres hipropicksor was received by Santosh Kumar for the plaintiff. This receipt given by the receiver of 1700 litres hipropicksor on 16.12.2006 is pasted in the relating official register kept by the hospital concerned. On Ex.D.12 after signature separately ???Santosh Kumar??? is written for the plaintiff. Learned trial Court has compared the written words ???Santosh Kumar??? with signature of plaintiff on different pages of the plaint, wherein ???Sudhir Kumar??? is written as signature of the presenter of the plaint. The plaintiff has not rebutted the above mentioned receipt given on his behalf about receiving of 1700 litres hipropicksor on 16.12.2006. Much emphasis has been given by the appellant''s counsel that from the date 16.12.2006, plaintiff was writing letters to the defendants that he has not received 400 litres hipropicksor on 16.12.2006. In this reference, Ex.P.7 is on record. In top of the Ex.P.7, date 16.12.2006 is written, but in the middle portion of this hand-written letter, it is recorded that today on 17.12.2006, plaintiff is given only 1300 litres hipropicksor. At the bottom of this letter, some signature similar to the plaint of Sudhir Kumar is appearing, but below it, it is clear that date 17.12.2006 was written, but by overwriting same has been made as 16.12.2006. The middle portion of Ex.P.7 proved by the plaintiff himself totally destroys the case of the plaintiff and also clearly indicates the falsehood of the plaintiff. It is clear from the documentary evidence that reinvited tenders were opened by the defendants after expiry of the term of the previously executed agreement with the plaintiff.

Thus, it is clear that the learned trial Court has properly and legally appreciated and analysed the oral and documentary evidence produced before it by the parties and the learned Appellate Court has also not committed any error in affirming the judgment and decree passed by the learned trial Court.

In view of the aforesaid discussion, I have not found any substance or circumstance in the matter giving rise to any question of law rather than substantial question of law. Consequently, this appeal is devoid of any merits and is hereby dismissed at the stage of motion hearing. There shall be no order as to costs.