HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT Nos.2295 AND 2296 OF 1992 COMMON JUDGMENT: Both these appeals arise out of a common judgment in O.S.Nos.39 of 1984 and 39 of 1986 on the files of the Subordinate Judge, Nalgonda. 2. The appellant herein is the plaintiff in O.S.No.39 of 1984 and the defendant in O.S.No.39 of 1986. Therefore, the parties are referred as arrayed in O.S.No.39 of 1984. 3. O.S.No.39 of 1984 is a suit filed for recovery of Rs.1,27,389.95 ps. According to the case of the plaintiff, he is a Contractor engaged by the 1st defendant for supply of the labour for loading and unloading of the rice bags at Miryalguda railway station for a period of two years commencing from 01.09.1982 to 30.08.1984. The plaintiff has performed the contract from 01.09.1982 to September, 1983 without any complaint. The plaintiff unloaded the bags weighing more than 65 kgs but the Corporation has paid lesser rate. Therefore, the plaintiff is entitled for the difference of amount, which comes to Rs.16,485.12 ps. The 1st defendant has also to pay a sum of Rs.19,900.28 ps. towards the difference of the price towards the charges for silo packing numbering 1,00,000. The plaintiff also undertook direct loading of the paddy from the mills and has to get a sum of Rs.12,740.50 ps and also for direct loading of the paddy bags from the godowns and has to get a sum of Rs.7,942.05 ps. The plaintiff has also supplied labourers to the defendants corporation apart from engine, driver, boiler attendant etc., and a sum of Rs.48,600/- is payable towards the labour charges. The plaintiff was also made to pay a sum of Rs.11,667/- towards demurrage charges for the fault of the defendants. Therefore, the plaintiff is entitled for a total sum of Rs.1,27,389.95 ps., which is payable with interest. 4. The defendants filed a written statement denying the allegations in the plaint and also the contract work undertaken by the plaintiff. The various claims made by the plaintiff are disputed and submitted that the plaintiff himself has committed default. The plaintiff participated in the negotiations with the higher authorities and found the amounts payable by the defendants as correct. Therefore, the defendants pleaded for dismissal of the suit. 5. On the basis of the above pleadings, the following necessary issues have been framed by the trial Court in O.S.No.39 of 1984, for trial: 1) Whether the plaintiff is entitled to recover in all Rs.1,27,389.95 paise as per the detailed items given in paras 5 to 9 of the plaint? 2) Whether the plaintiff is entitled for any interest on the suit amount? 3) Whether the plaint claim is within the purview of the tender schedules and agreement accepted by the defendant corporation? 4) To what reliefs the parties are entitled to? 6. O.S.No.39 of 1986 was a suit filed by the 1st defendant in O.S.No.39 of 1984 for recovery of Rs.1,79,587.59 ps., admitting the fact that the plaintiff was the contractor and that he commenced the work from 01.09.1982 and his performance was not satisfactory from the beginning. The Regional Office gave a notice on 07.05.1983 to rectify the breach of contract. The grievances expressed by the plaintiff were considered at the joint meeting at the Regional Office on 14.06.1983 and on 30.06.1983, most of the complaints about the claims are found to be incorrect. It was pleaded that the defendant did not commence the work and stopped it and the contract was terminated on 07.09.1983 and fresh tenders were called for and excess amount has to be paid. The defendant also paid wages to the labourers to a tune of Rs.55.382.69 ps for the contract period and therefore, the total sum due to the defendant is Rs.1,79,587.59 ps., which includes the excess amount paid by the defendant after termination. 7. On the basis of the above pleadings, the following necessary issues have been framed for trial: 1) Whether the defendant committed breach of contract of tender agreement with effect from 01.09.1982 as per tender notice No.S & C.13(4)/82 Contd.I dated 01.05.1982? 2) What are the total loss incurred by the plaintiff corporation for breach of contract made by the defendant? 3) Whether the plaintiff is entitled to claim interest on the loss incurred by the plaintiff, if so, at what rate? 4) To what relief? 8. Both the suits were clubbed and recorded common evidence in O.S.No.39 of 1984. On behalf of the plaintiff, PW.1 was examined and marked Exs.A.1 to A.23. On behalf of the defendant, DWs.1 to 3 were examined and marked Exs.B.1 to B.19. 9. The lower Court on consideration of the material on record, decreed the suit of the plaintiff i.e., O.S.No.39 of 1984 for a sum of Rs.51,896/- and the suit of the defendant O.S.No.39 of 1986 was decreed for a sum of Rs.1,30,051.84 ps. with interest at 12% from the date of suit till the date of realisation. 10. The points that arise for consideration are: 1) Whether the plaintiff/appellant is entitled for the amount claimed in O.S.No.39 of 1984? 2) Whether the appellant is not liable to pay the amount as decreed in O.S.No.39 of 1986 and has not committed any breach of contract? 11. POINTS: The question to be considered is whether there was negligence on the part of the plaintiff in not performing the contract as per the agreement. On this aspect, there is the evidence of DWs.1 to 3 and also several letters written by the defendants about the failure of the plaintiff to perform the contract and therefore, the lower Court on the appreciation of evidence of DWs.1 to 3 came to the conclusion that the appellant has not performed the contract and the cancellation was valid and in fact, the defendant has to go in for fresh tender for a higher rate. The finding of fact, which was recorded by the lower Court, is not seriously disputable from the evidence available on record. The plaintiff was also informed by letter Ex.B.5 about all the previous correspondence and ultimately under Ex.B.10 the contract was terminated. It is also not in dispute under Ex.B.11 the work was entrusted to K.Veeraiah and company at the rate of Rs.790%. Therefore, I find that the cancellation of the contract is being valid, the plaintiff has to make good loses if any suffered by the defendant as rightly held by the lower Court. 12. According to the case of the plaintiff, there are different rates fixed for the loading and unloading of the bags and he was not paid properly for the loading and unloading of the bags weighing more than 65 kgs and he was only paid at the rate of below 65 kgs. His claim is for the same of Rs.16,485.02 ps towards that amount. He also claimed for a sum of Rs.19,900.28 ps., towards shifting of paddy bags weighing about 65 kgs of silo packing. It is not in dispute that as per the discussions reflected in the meeting on 14.06.1983 the average was to be taken into consideration. In the evidence of the plaintiff, it was elicited that work slips will be given by the Assistant Manager for the loading and unloading and he was not able to say that whether out of the total bags handled by him 52,385 bags were weighing more than 65 kgs each and he cannot also say if the handling charges for 49,089 bags weighing more than 65 kgs each were already paid and the balance was only 3,296 bags. Though he claims that he supplied more than 1,00,000/- bags weighing more than 65 kgs each, there is no material. Therefore, basing on the above facts the defendant claimed that only a sum of Rs.3,296/- payable, which was proved by the evidence and also the correspondence at the time of discussion and Ex.A.2. The material evidence on record does not show as to on what basis the difference has been claimed by the plaintiff. There is no other reason than to accept the contention of the defendant that only a sum of difference for more than 3,000 bags alone is payable at the rate of Rs.1/- per bag, which are weighing more than 65 kgs each. 13. The plaintiff also claimed a sum of Rs.12,740/- for direct loading of paddy in mills and a sum of Rs.7,942.05 ps at the godowns. Evidently, the tender schedule does not differentiate any payment for the work undertaken by the plaintiff as rightly found by the lower Court. Ex.A.1, the legal notice, does not reflect the same. The evidence of PW.1 on this aspect is also not satisfactory and in fact during the course of arguments and also the counsel for the appellant could not substantiate this claim and therefore, it was rightly rejected by the lower Court. 14. The 3rd claim of the appellant for a sum of Rs.48,600/- for supply of the boiler attendants, sweepers etc., and their wages were accepted by the lower Court and there was no appeal questioning the above quantum. 15. The claim for demurrages was not pressed by the plaintiff and for the further claim of Rs.4,055/- for loading and unloading grades and transport, but there is no evidence and in the appellate Court also no material could be shown to substantiate this claim. Therefore, the lower Court has rightly decreed the suit of the plaintiff with regard to the claim No.1 for a sum of Rs.3,296/- and also for a sum of Rs.48,600/-. The enhancement claimed by the plaintiff is therefore not tenable. 16. So far as the defendant is concerned, a sum of Rs.74,623.95 ps., was claimed as excess payment to the subsequent contractor for the default committed by the appellant and the consequential entrustment of the contract to another person. It has been already held that the cancellation of the contract and entrustment of the work to another person is valid and the loss suffered by the defendant has to be reimbursed by the plaintiff and therefore, the said claim has been rightly decreed by the lower Court, which was supported by the material on record. 17. So far as the claim for the loss incurred to the damage of the paddy is concerned, it was rejected and there is no appeal. The other claim, which has been decreed by the lower Court is for a sum of Rs.55,382.69 ps., which was said to be the wages paid as per the directions of the competent authority under the Payment and Wages Act consequent on the failure of the plaintiff contractor to pay the same. Evidently, it is for the plaintiff to pay the wages for the labourers employed by him and having forced the labourers to go to the Court and when the said amount was paid by the defendant, the plaintiff cannot avoid the said responsibility and consequently, the amount of Rs.55,382.69 ps granted by the lower court is correct. The total of the claim of the defendant to a tune of Rs.1,30,051.84 ps comprising for the two claims, consequent on the default of the plaintiff, are rightly awarded and they do not call for any interference. 18. The learned counsel for the appellant contended that the lower Court has granted decree with interest at 12% per annum from the date of suit till the date of realisation. Evidently, there is no contract to pay interest and under Section 34 of the Civil Procedure Code the power of the Court to grant interest after the decree is only at 6% per annum in case of money decrees. Therefore, in view of the above circumstances, while confirming the decrees passed by the lower Court, the interest is granted at 12% per annum from the date of suit till the date of decree and at 6% per annum from the date of decree till the date of realisation. The defendant can adjust the decretal amount in the suit of the plaintiff and can realise the balance amount. Accordingly, points are answered. 19. In the result, both the appeals are allowed in part. Each party shall bear their own costs. _________________________ N.R.L. NAGESWARA RAO, J Date:12.08.2011 INL