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Judgment
N.D. Vyas, J.—This is an appeal preferred by the original defendants against the judgment and decree dated 3rd May, 1985 passed by the Civil Judge, Senior Division, Satara in Special Civil Suit No. 38 of 1983 whereby the trial Judge has decree the plaintiffs suit in its entirety.
The plaintiff, a registered co-operative society, filed the suit claiming return of Rs. 55,269,50 being the total amount of earnest money and security deposit in respect of tenders for the years 1974-75 to 1981-82 awarded to the plaintiff. The tenders were in respect of lifting of coal ash between Pune and Miraj. It was the plaintiffs case that though it became entitled to the return of the said amount as the contract was completed, despite demands made, the same was not returned. The appellants - defendants had raised several pleas. Only one of them is required to be considered at this stage. It was the appellants'' contention that as per the terms of the contract, the plaintiff .was required to supply cinder baskets and, on its failure to do so, the amounts deposited as earnest money and security deposit would be forfeited. It was further contended that the claim of the plaintiff was time barred.
On the basis of these pleadings, issues were raised by the trial Judge which included issue as to whether the plaintiff was entitled to the refund of the deposits alongwith damages and interest; whether the defendants proved that the plaintiff had committed breach of the contract and whether the suit was barred by limitation. In fact, as many as 11 issues were raised. However, we are not concerned with the rest of the issues as, in our opinion, consideration of these three issues, by themselves, is enough to dispose of the present appeal.
The plaintiff led evidence of one Laxman Amane, the Manager of the society, and one Hindurao Ghorpade, Chairman of the society. On the other hand, the appellants-defendants led evidence of three witnesses, viz., one Rammurti Sheshadri and Kashinath M. Shinde. Several documents were also brought on record and the trial Judge answered the issue as far as plaintiffs claim for refund of deposits was concerned, in the affirmative, and the issues as far as the defendants'' plea that the plaintiff committed breach of the contract and the suit was barred by limitation were concerned, in the negative.
5.It is necessary to refer to some of the terms of the contract between the parties. Tenders were invited from year to year, Le., from 1st April every year up to 31st March of subsequent year. The claim, however relates to tenders for the years 1974-75 to 1981-82. In respect of each of such tenders, earnest money and security deposits were given by the plaintiff in respect of which amounts, there does not seem to be any dispute. The conditions of tender are the conditions which govern the performance of the contract and Condition 10(a) provides that the successful tenderer shall pay the amount of tender in full and balance to make up full security deposit of 10% of the value of the contract. Condition 10(d) provides as under :
The Administration shall be entitled to forfeit the whole or any part of the earnest money or security deposit for breach of any of the provisions of the contract without prejudice to any other action the administration may deem appropriate to take against the contractor for default.
Condition 11(a) provides as under :
The contractor will make all arrangements to hand over the cinders picked to the administration as will be indicated against each station duly measured in standard baskets supplied by the Administration for such measurement daily by hour or so as otherwise directed. The contractor will be responsible for the safe custody of the cinders till such time they are handed over to the administration or supplied to the authorised agent of the Administration. Receipts shall be passed for the quantity of cinders made over with such details as date, station etc. and shall be signed by both the parties. In the absence of such receipts no claim of the contractor of having handed over the stipulated quantity of cinders to the Railway Administration shall be entertained.
The appellants had produced material in the form of Exhibit 102 to show that although the plaintiff was required to supply cinder baskets as enumerated in the said Exhibit, it had failed to do so. It was the submission of the learned Counsel appearing on behalf of the appellants that the conditions, reproduced above, entitled the appellants to forfeit the amounts of earnest money and security deposit. We were taken through the evidence led before the trial Judge and it is clear that the plaintiff-respondent had not supplied any cinder baskets although required to do so under the contract. Condition 11(a) Specifically provides that receipts would be passed for the quantity of cinders made over with such details as date, station etc. and would be signed by both the parties and, in the absence of such receipts, no claim of the contractor of having handed over the stipulated quantity of cinders to the appellants would be entertained. Although in the evidence led by the plaintiff a vague attempt was made to suggest that cinders were supplied, no documentary proof of any nature was produced in the trial Court with the result that there is nothing to show that the plaintiff had, in fact, supplied the cinders. Looking at Exhibit 102, which is a statement containing particulars of cinders required to be supplied and in fact supplied by various contractors, it is clear that the plaintiff had not supplied any cinders in respect of the year in question. Therefore, in our view, the appellants were within their right to forfeit the amounts of earnest money and security deposits.
It was sought to be argued before us by the learned Counsel appearing for the original plaintiff that in fact certificate was issued on 5th September 1980 showing satisfactory performance on the part of the plaintiff. The said certificate is at Exhibit 41. A persual of the certificate makes it clear that it was for the period 1st April 1979 to 31st March 1980, and that too, for Section Valha to Saswad Road. By no stretch of imagination, this certificate can be considered applicable in respect of all the tenders for the year in question as, for every year, there is a new tender. At the same time, certificates are issued by various sections of the Railway Administration. In our view, this certificate does not help the plaintiff at all. Even assuming that this certificate can be considered to be valid and available to the plaintiff for showing satisfactory performance of the tender in respect of that particular section, there is nothing to show that the plaintiff, in fact, had, in respect of tender for the year 1st April 1979 to 31st March 1980, for other section, supplied the necessary cinders. Thus, there is no material to show that the plaintiff had, in fact, supplied the cinders as maintained by it. In these circumstances, we do not at all agree with the reasoning and finding recorded by the trial Judge.
In any view of the matter, the trial Judge has wrongly come to the conclusion that suit was not barred by limitation. The suit is in respect of tenders for the years 1974-75 to 1981-82, At least in respect of tenders for the years 1974-75 upto 1980-81, the suit appears to be barred by limitation inasmuch as that each tender is a separate transaction and in respect of each tender, the claim, if any, of the plaintiff would be distinct. In the absence of any acknowledgment of liability or part-payment, there is no question of the suit in respect of that part of the claim of the plaintiff, i.e., for the years 1974-75 upto 1980-81, being within limitation. As far as the claim in respect of the year 1981-82 is concerned, as mentioned above, there is no evidence to show that the plaintiff had supplied any cinders and, thus, in our view, the appellants were within their right to forfeit the amount of earnest money and security deposit in respect of that year also. We do not at all agree with the reasoning and the finding given by the trial Judge in respect of the issue as to limitation. The trial Judge has considered the notice sent by the plaintiff dated 8th September 1981 as the starting point of limitation as, according to him, the cause of action to file the suit arose on that date, and he calculated three years from that date. In our view, this approach has no basis, whatsoever, and is clearly wrong.
In view of the above, the appeal must succeed. Accordingly, appeal is allowed and the judgment and order passed by the Civil Judge, Senior Division, Satara in Special Civil Suit No. 38 of 1983 is set aside and the plaintiffs suit stands dismissed. Respondent shall pay costs of the appellants throughout.