RSA No. 1429 of 2011 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 1429 of 2011 Date of decision: May 26,2011 Haryana Ware Housing Corporation and another ..Appellants Versus M/s Garg Rice Industries ..Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present: Mr. Sunil Panwar, Advocate for the appellants ... L.N.Mittal,J.(Oral) Defendants- Haryana Ware Housing Corporation and its Manager, having lost in both the courts below, are in second appeal. The suit was filed by respondent-plaintiff/ M/s Garg Rice Industries against defendants/appellants. Plaintiff's case is that defendant No.1 floated tender inquiries for construction of open plinth for capacity of storing 15000 metric tons of wheat and other food grains. The tender submitted by the plaintiff was accepted by the defendants. Agreement dated 13.3.2001 was entered into between the parties. As per agreement, the plaintiff had to construct the open plinth and to hand over the same to the defendants till 31.3.2001. The defendants were to pay rent at the rate of `3/- per metric ton per month from the date of actual possession or 1.4.2001, whichever is later. Plaintiff accordingly constructed open plinth as per specifications of the defendants and gave its possession to the defendants. Defendants utilized the plinth for three years but failed to pay the rent at the agreed rate inspite of several representations and notice dated 26.9.2003. Defendant No. 2 issued letter dated 7.4.2004 requiring the plaintiff to carry out changes in the plinth to bring the same up to specifications. Vide this letter, the plinth was rejected for storage of procured RSA No. 1429 of 2011 2 wheat of Rabi,2004 crop due to low level of the plinth. Thereafter, vide letter dated 4.8.2004, defendants terminated the agreement. In the suit, the plaintiff challenged the aforesaid letter dated 7.4.2004 and order dated 4.8.2004. The plaintiff alleged that he constructed the plinth in time and the same was accepted after inspection and was being used by the defendants. Accordingly, defendants are bound to pay rent at the agreed rate up to 14.4.2005. The plaintiff sought declaration that the aforesaid letter dated 7.4.2004 and order dated 4.8.2004 are illegal and null and void. The plaintiff sought rendition of accounts of rent and payment of the outstanding amount along with interest. The defendants admitted that tender of the plaintiff was accepted and agreement was entered into between the parties. The defendants however pleaded that the plaintiff did not construct the plinth as per specifications and within the stipulated period. The plaintiff did not complete the plinth up to 31.3.2001 as per agreement. The plaintiff handed over the plinth of capacity of 5513 metric tons on 21.4.2001 and plinth of 9924 metric tons on 30.4.2001. The committee of the defendants inspected the plinth on 12.9.2001 and found many deficiencies. Accordingly, vide letter dated 28.2.2002, the plaintiff was required to rectify the deficiency. The plaintiff did not do so. The defendants had to utilize the plinth as they had no alternative at the last moment, although the plinth was below specification and incomplete. Consequently, defendants paid rent at the rate of `2.20 per metric ton per month on provisional basis subject to final settlement by the committee of defendants on receipt of final report regarding plinth. Defendant No.2 sent letter dated 7.4.2004 requiring the plaintiff to carry out necessary changes. It was also stipulated in the agreement that if the plinth became unfit for use due to fault of plaintiff or by act of God, the defendants would be at liberty to vacate the plinth. The Food Corporation of India (FCI) rejected the plinth being of low level and therefore, defendants had to terminate the agreement vide order dated 4.8.2004. Learned Additional Civil Judge (Senior Division), Panipat vide judgment and decree dated 22.3.2010 decreed plaintiff's suit. First Appeal RSA No. 1429 of 2011 3 preferred by the defendants has been dismissed by the learned additional District Judge, Panipat vide judgment and decree dated 27.9.2010. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that the plaintiff did not construct the complete plinth within the stipulated period and as per specification and therefore, defendants have rightly paid rent to the plaintiff at lower rate of `2.20 per metric ton per month. The contention cannot be accepted. Defendants accepted the plinth in April 2001 and utilized it for three years. During this period of three years, the defendants never said that the plinth was not up to specifications or that the defendants would pay rent at lower rate of `2.20 per metric ton per month instead of agreed rate of `3/- per metric ton per month. Letter dated 28.2.2002 sent for the first time by the defendants to plaintiff regarding alleged deficiencies in the plinth simply mentioned that the road works within the campus were still to be completed. No other deficiency in plinth was pointed out even at this belated stage. In the aforesaid context, it has to be noticed with significance that as per agreement, defendants could inspect the plinth either during its construction or at the time of taking possession thereof. However, it is defendants' own case that they took possession of the plinth on 21.4.2001 and 30.4.2001, but the plinth was inspected by the committee of the defendants on 12.9.2001, i.e., after almost 5 months. The defendants had no right to inspect the plinth at this belated stage because as per specific condition of the agreement, the defendants could inspect the plinth during construction or at the time of taking possession. It would also not be out of place to notice that even after the alleged inspection on 12.9.2001, communication dated 28.2.2002 was for the first time sent by the defendants to the plaintiff i.e., more than 5 months after the alleged inspection and even then except that road work in the campus was allegedly not completed, there was no other deficiency pointed out in the RSA No. 1429 of 2011 4 plinth. In addition to the aforesaid, the defendants utilized the plinth for three years. Even if in April, 2001, the defendants had to take the plinth on account of emergency or urgency, the defendants could vacate the plinth after utilizing it for one year in accordance with the terms and conditions of the agreement after intimating the deficiencies in the plinth to the plaintiff. However the defendants did not do so. Learned counsel for the appellants contended that the agreement stipulated that if the plinth was not up to specification, defendants could accept it at lower rate of rent. However, this contention also cannot be accepted because at no stage, the defendants intimated the plaintiff that the plinth was not up to the specification or that the defendants were accepting it at lower rate of `2.20 instead of `3/- per metric ton per month. Even according to the written statement, the defendants made payment of rent @ `2.20 per metric ton per month on provisional basis only and it was subject to final settlement by the committee of the defendants. However, the so called final settlement by the committee of the defendants has never been arrived at. Thus, there is neither any pleading nor any evidence to depict that in terms of the agreement, the defendants accepted the plinth at lower rate of rent than the agreed rate. Even after writing letter dated 28.2.2002, the defendants remained again silent for more than 2 years till letter dated 7.4.2004 was sent by defendant No.2. The defendants utilized the plinth and when the defendants had to pay the rent, they tried to find excuses for paying the rent at lower rate. It is clear breach of agreement by the defendants and unnecessary harassment of plaintiff because of dominant position of the defendants being State agency. Learned counsel for the appellants also referred to clauses XI and XII of the agreement requiring the plaintiff to maintain the plinth and stipulating that if the plinth became unfit for use due to the fault of plaintiff or by act of the God, defendants were at liberty to vacate it at any time and without proper notice. However, it is not the case of the defendants that the plaintiff has failed to RSA No. 1429 of 2011 5 maintain the plinth or that the plinth became unfit for use due to fault of the plaintiff or by an act of God. On the contrary, even in letter dated 7.4.2004, the defendants did not mention that the plinth had become unfit for use on account of any fault of the plaintiff or any act of God. It was rather mentioned that Food Corporation of India rejected the plinth during Rabi 2004 due to low level of the plinth. It is not mentioned in this letter as to how the plinth became of low level or that there was any fault of the plaintiff or any act of God. On the contrary, the FCI found the plinth to be of low level but the defendants had been storing the wheat and food grains on the plinth for three years at the same level and at no stage, it was ever conveyed by the defendants to the plaintiff that the plinth was of low level. For the reasons aforesaid, I find no merit in the instant second appeal. The findings have been recorded by the courts below in favour of the plaintiff after appreciation of evidence. There is no illegality or perversity in judgments of the Courts below so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. May 26,2011 (L.N.MITTAL) nk JUDGE