IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 2678 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE D.C.SRIVASTAVA sd/- and Hon'ble MR.JUSTICE H.K.RATHOD sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? No 2. To be referred to the Reporter or not? Yes : 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? No 4. Whether this case involves a substantial question No : of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? No : -------------------------------------------------------------- VIKAS MAJDOOR KAMDAR SAHKARI MANDLI LTD. Versus FOOD CORPORATION OF INDIA 3RD SPECIAL LAND ACQUISITION -------------------------------------------------------------- Appearance: MR BP TANNA for MR KG SUKHWANI for Petitioner MR PC KAVINA for M/S THAKKAR ASSOC. for Respondent No. 1 DS AFF.NOT FILED (N) for Respondent No. 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE D.C.SRIVASTAVA and MR.JUSTICE H.K.RATHOD Date of decision: 07/08/2000 C.A.V. JUDGEMENT (Per D.C.Srivastava, J.) 1. This is plaintiff's First Appeal against the Judgment and Decree dated 26.2.1999 passed by Shri Rajesh H. Shukla, City Civil Judge, Court No.4, Ahmedabad, dismissing the Suit of the plaintiff - appellant. 2. The plaintiff appellant herein filed a Suit for permanent injunction, mandatory injunction, and for recovery of Rs.68,07,113.20 ps. with interest at the rate of 18 % from the due date till its realisation on the following allegations : The plaintiff is a registered co-operative society dealing in business of stevedoring clearance handling and transport work, operating mainly at Kandla Port for loading and unloading. The plaintiff was appointed as a contractor for stevedoring, clearance, handling and transportation at Kandla Port by the defendant through telegram dated 29.7.1994. The appointment was in persuance of tender submitted by the plaintiff in response to public advertisement in the news paper made on behalf of the defendant. The defendant No.1 is the Food Corporation of India (for short "F.C.I.") and the defendants No.2 & 3 are respectively Joint Manager and Zonal Manager of the F.C.I. Under the terms and conditions of the tender notice the plaintiff was required to give daily out put and to handle 750 MT. per day as per charter Party contract and for such handling the rate fixed was Rs.108/- per MT. There were other conditions in the contract that the plaintiff was required to transport, handled cargo, to the godown of the F.C.I. which is situated within a distance of 10 to 15 k.mtrs. from Kandla Port. For transportation, the charges were fixed at Rs.15/- per tonne. By letters dated 30.9.1994 and 14.10.1994 the F.C.I. directed the plaintiff to handle more cargo than was prescribed under the conditions of tender. This request was made by the defendant No.1 in view of threat given by Kandla Port Trust that in case the F.C.I. will not give more out-put at the concerned Port, the Port will stop giving priority of berthing of vessels which were engaged by the F.C.I. In view of these letters the plaintiff started handling more cargo between 1200 to 1300 MT. per day as against contracted rate of 750 MT. per day. For handling more cargo the plaintiff had to incur more expenses on various counts, namely, it had to pay enhanced wages to the workers as a Gang of port and for transporting the extra cargo unloaded more vehicles were needed for transporting the handled cargo to the godown of the F.C.I. The plaintiff had also to bear more expenses of freight, on demurrage because of handling of more than charter party contract rate. In addition to this the plaintifrf had to incur additional expenses like giving more wages to casual labourers, watchmen, sweepers, etc. Consequently to meet these extra expenses the plaintiff by letter dated 25.10.1994 and Fax Message dated 28.10.1994 demanded more rate for handling extra cargo per day. The F.C.I. neither gave any reply to the above letter and Fax message nor asked the plaintiff to stop handling of extra cargo. The plaintiff had cleared four vessels for the F.C.I. at the rate of 1200 to Rs.1300 MT per day under good faith that the dispute regarding increased rate for handling extra cargo will be settled by the F.C.I. Again letter was sent to the General Manager of the F.C.I. requesting for enhancement of rates for clearance of additional cargo. The plaintiff reliably learnt that the Assistant Manager (Docks) had recommended to the Joint Manager (PO) the plaintiff's case and justifying the plaintiff's claim for enhanced rate. Still no action was taken by the F.C.I. to pay the plaintiff at the enhanced rate. On the other hand the plaintiff was telephonically threatened that if Kandla Port Trust will pull out the vessels of the F.C.I. then the consequential loss will be deducted from the payment which is to be made to the plaintiff. The plaintiff claimed enhanced rate for unloading at the rate of Rs.215/- per MT. and the total amount for this work comes to Rs.1,14,98,006.50 ps. The plaintiff received payment at the rate of Rs.108/- per MT. which comes to Rs.57,75,742.80 ps. The difference which is payable by the defendant to the plaintiff thus comes to Rs.57,20,263.70 ps. For transportation of Sugar bags the plaintiff shifted 36161.65 MT. sugar to F.S.D. Gandhindham. Accordingly the plaintiff claimed enhanced transportation charges at the rate of Rs.45/- per MT. which comes to Rs.16,27,274.25 ps. As against this the defendant had paid at the rate of Rs.15/- per MT. to the tune of Rs.5,42,424/hence a further sum of Rs.12,84,849.50 ps. is required to be paid for transportation charges. On the above allegations the Suit was filed claiming the above reliefs. 3. The Suit was resisted by the defendants through Joint written statement taking composite defence in reply to the plaint as well as in reply to the injunction application. It was pleaded that the Suit as well as injunction application is barred by Specific Relief Act inasmuch as alternative efficacious remedy is available and no suit for injunction can be maintained. The plea of estoppel, misjoinder and non-joinder of parties was also raised. It was alleged that the plaintiff failed to shift the discharged cargo from the vessels to the defendant's godown as per terms and conditions of the contract, still it wanted enhanced rate which is not permissible. It was alleged that the plaintiffs are obliged by the contractual provisions to give acellerated rate of discharge of cargo at their own interest, else they have to incur loss of dispatch money to the defendant. It was also pleaded that the plaintiff can claim payment from the defendant only for the service which it was asked to perform as per the provisions of the contract and for services rendered at their own interest and not covered by contract the defendant cannot be expected to pay anything to them. It was only to avoid payment of demmurage that the plaintiff undertook extra unloading hence the defendants are not obliged to pay any extra amount other than the rate mentioned in the contract. It is also pleaded that according to clause 41 of the contract the plaintiff is bound to abide by all the rules and regulations of inter-alia the Port Authorities, Railways, Police, etc. and since direction was given to the plaintiff keeping in view the threat given by Kandla Port Trust for extra handling of cargo the plaintiff is bound by those directions and no extra payment is to be made. It was denied that the plaintiff was not given full payment for the work done. Concluding averment in the written statement is that the plaintiff's claim for payment towards extra expenses for services not covered by the contract is untenable. It was also pleaded that the Court below had no jurisdiction to entertain the Suit. On these averments it was pleaded that the suit is liable to be dismissed. 4. The trial Court framed seven issues arising out of the pleadings of the parties. It was held by the trial Court that it had jurisdiction to entertain the Suit and decide the same. It was further held that the plaintiff was appointed as contractor for stevedoring, clearance and for transportation at Kandla Port persuant to the tender. It was further held that the plaintiff was carrying out the work of transport and handling the cargo as per terms and conditions of the tender. It was, however, found by the trial Court that the plaintiff is not entitled to enhancement of charges, for handling the cargo, raised from Rs.108/- per MT. to Rs.215/- per MT. It, however, found that the plaintiff was unloading the quantity of goods more than that stipulated in the tender. On the basis of the finding that the plaintiff is not entitled to enhancement of rate of handling the cargo from Rs.108/- per MT. to Rs.215/- per MT. it was held that the plaintiff is not entitled to recover the amount claimed in the Suit. 5. No issue was framed by the trial Court whether the plaintiff is entitled to enhanced transportation charges at the rate of Rs.45/- per MT. as against the contracted rate of Rs.15/- per MT. Likewise there is no issue or finding that the plaintiff is entitled to declaration, injunction, mandatory as well as prohibitory as claimed in the plaint. 6. On the above findings the Suit of the plaintiff was dismissed by the trial Court with no order as to costs, hence this Appeal by the plaintiff. 7. We have heard Shri B.P.Tanna, Senior Advocate on behalf of the Appellant and Shri P.C.Kavina representing M/s. Thakkar Associates, on behalf of the respondent. We have examined the voluminous record of the case. 8. On 26.4.2000 this Court (Coram : H.R.Shelat & H.H.Mehta, JJ.) ordered that the notice be issued making it clear that the Court may hear the Appeal finally on 14.6.2000. Accordingly the Appeal was heard finally at the admission stage. The record from the lower Court was summoned. In these circumstances in view of the order of the earlier Bench priority has been given for final hearing of this Appeal of 1999. 9. After examining the Judgment under Appeal it is found that the trial Court has not properly applied its mind to the real controversy between the parties. Proper issues were not framed. No issue was framed regarding claim of the plaintiff for enhanced transportation charges and no finding has been given in the Judgment any where whether the plaintiff is entitled to enhanced transportation charges or not. Likewise no finding has been given by the trial Court on the relief of declaration, injunction, permanent and mandatory, nor any issue has been framed on these pleas. However, we do not find it expedient to remand the case for framing proper issues in the case and for de-novo trial because that would simply delay the disposal of the Suit. Since the evidence is already on record and parties adduced evidence fully knowing well their respective cases the matter can be decided finally by the Appellate Court. 10. We further find that in the Judgment except repetition for 5-6 times on the same point, may be in the nature of pleading or arguments or findings, there is no definite conclusion and clear expression of the mind of the trial Court. In these circumstances, being conscious of the fact that the Judgment of the trial Court is a sacred document no unnecessary stricture should be passed, hence we proceed to undertake the exercise of deciding the whole matter effectively and conclusively. 11. So far as the first relief in the plaint is concerned the plaintiff has prayed that the defendant be restrained from recovering and/or withholding any amount from the bills of the plaintiff towards any alleged liability. The stand of the defendants in the written statement was that since the final bill was not submitted by the plaintiff there arose no occasion for withholding any amount from the bill of the plaintiff. However, in the course of argument Shri P.C.Kavina informed that payment for the extra work has already been made to the plaintiff at the contracted rate of Rs.108/- per MT. for clearance of cargo and at the rate of Rs.15/- per MT. for transportation and that the security money of the contractor - plaintiff has also been refunded and no deduction has been made on any count whatsoever. This statement of Shri P.C.Kavina was not controverted in the course of argument by Shri B.P.Tanna, learned Counsel for the plaintiff - appellant. Consequently the first relief cannot be granted now in this Appeal. The plaintiff is, therefore, not entitled to permanent injunction against the defendant as claimed in Para : 14(a) of the plaint. As a consequence of the above finding the relief of declaration sought for by the plaintiff also cannot be granted. 12. The second relief is for a declaration that the action of the defendant in recovering various amounts and not deciding the rates for the extra work is not tenable at law. No recovery is contemplated by the defendants against the plaintiff. Of course the decision regarding rates for extra work is yet to be taken. Shri P.C.Kavina has, however, contended that it will be implied rejection of the representation of the plaintiff wherein extra rate was claimed by the plaintiff. However, there is nothing like implied rejection and we will discuss this matter while dealing with Relief (e). It is, therefore, held that the plaintiff is not entitled to declaration sought for in Para : 14(b) of the plaint. 13. So far as relief in Para : 14(C) of the plaint is concerned it is in the nature of mandatory relief which cannot be granted straightaway. It will be discussed while considering relief 14(e) whether the plaintiff is entitled to extra amount claimed in the plaint. Consequently no mandatory relief claimed in this para can be granted. 14. We are then left with consideration of relief contained in Para : 14(e) wherein the plaintiff has claimed decree for Rs.68,07,113.20 ps. together with interest at the rate of 18 % p.a. 15. Shri B.P.Tanna, has rightly contended that the trial court has not given any clear finding and has made vague and casual reference of clauses 34, 35 and 41 of the Agreement to dislodge the claim of the plaintiffs. We have examined clauses 34 and 35 of the Agreement and we are in agreement with the contention of Shri Tanna that these two clauses could not be pressed in service for dislodging the claim of the plaintiff. We have already mentioned above that the Judgment of the Court below is specimen of repetition and no clear finding with cogent reason has been recorded. In the Judgment in Para : 15 it is mentioned that it was argued on behalf of the F.C.I. that under clauses 34, 35 and 41 of the Agreement the plaintiff contractor agreed to abide by the rules and regulations of other authorities. We have not been able to find clear answer to this argument incorporated in the Judgment of the trial Court. However, after examining clauses 34 & 35 of the Agreement we find that these two clauses are not relevant nor on the basis of these clauses the plaintiff could be non-suited. 16. So far as clause 41 is concerned it reads as under : "The contractor shall strictly abide by all rules and regulations of the port authorities, Railways, police, Municipal authorities, etc. The trial Court found that this clause applies with full force inasmuch as the F.C.I. was directed by Kandla Port Trust to undertake speedy unloading of the vessels failing which priority of berthing to the vessels will not be granted and the possibility of pulling out the vessels could not be ruled out. The question is whether such direction by the Kandla Port Authority to the F.C.I. could be binding upon the plaintiff contractor. Our answer to this is in negative. What is meant by clause (41) is that the contractor shall strictly abide by all rules and regulations of the Port Authorities. The contractor was bound, to observe rules and regulation of the Port Authorities and any oral direction not emerging from the rules and regulation of the Port Authorities given to the F.C.I. was hardly binding on the contractor. Consequently in our view the Court below was not justified in dislodging the claim of the plaintiff on the ground that under clause (41) of the Agreement the plaintiff contractor was bound to do extra work. 17. In the instant case the main dispute is regarding extra remuneration claimed by the plaintiff. The trial Court has observed that under the Agreement the plaintiff was bound to undertake extra clearance also and that the plaintiff could not claim extra remuneration. The trial Court has relied upon in its judgment clause XX, Part-I(i) for stevedoring in the Agreement which provides for stevedoring Clause (1)(i). It which reads as under : "The contractor shall ensure the discharge of cargo in a vessel handled by him at the rate not less than what is provided for in the Charter Party of the concerned vessel and ultimately if there has been any short fall in the discharge of the vessel at the stipulated rate and consequential demmurrage charges, the contractor will be responsible for the same and will make good whatever losses and expenses incurred by the Corporation, the Corporation shall have the right to deduct those losses from the admitted bills of the contractor." This clause in the Agreement was interpreted by the trial Court in the sense that under the Agreement minimum clearance expected from the contractor was 750 MT. per day. However, this clause in the Agreement has to be read along with Charter Party Agreement. In Charter Party Agreement the plaintiff contractor was not a party. However, in view of the Agreement referred to above reference to charter party has to be made and it cannot be said that the words "not less than" what is provided in the charter party in the main agreement mean that minimum expected from the plaintiff was to clear 750 MT. per day and there was no limit for maximum clearance. If this Agreement is read along with charter party agreement, Ex.91, it can be said that there is clear provision in clause (19) of the Charter Party Agreement that the emphasis is on average rate of 750 MT. per day clearance and not the minimum clearance of 750 MT. per day. There is distinction between the minimum rate of clearance and average rate of clearance. Minimum rate of clearance means that the contractor was to undertake minimum clearance at the rate of 750 MT. per day, but there was no outer limit and if some excess work is done nothing has to be paid to the contractor, whereas average rate means if on some day less clearance is done and on the other day more clearance is done then the average of these two days will be worked out and this average should not be less than 750 MT. per day. We are unable to agree with the contention of Shri P.C.Kavina that minimum of 750 MT. per day clearance was provided in the Agreement read with charter party agreement and there was no limit for excess clearance. It is a matter of common sense that the contractor could have agreed to submit the tender only at the rate contracted for and not beyond that. In Para : 22 of the charter party Agreement, Ex.91 it is further mentioned that ship to discharge at the average rate of 750 MT. Thus, from clauses 19 and 22 of the Charter Party Agreement it is clear that average rate of clearance at the rate of 750 MT. per day was expected. Since in the main Agreement it is mentioned that the contractor shall ensure the discharge of cargo in a vessel handled by him at the rate not less than what is provided in the charter party Agreement of the concerned vessel it means not less than the average of 750 MT. per day. Thus, it is the average of 750 MT. per day clearance which was expected from the contractor and not that it was minimum 750 mt. per day clearance as urged by Shri P.C.Kavina. 18. Shri P.C.Kavina further contended that the extra clearance was done gratituously by the contractor. We are again unable to agree with this contention. There is no reason to accept this plea that the contracotr could have undertaken extra clearance gratituously without being remunerated for extra expenses. After all it was a temporary contract for one year and not a permanent contract. There is no mention that any assurance was given to the plaintiff that in case extra clearance is undertaken fresh contract for the next year will be given to the plaintiff. We are therefore unable to accept the contention that the extra clearance or extra transportation was done by the plaintiff gratituously. 19. The trial Court has not taken into consideration clause (xvi) of the Agreement which provides for remuneration. The trial Court, therefore, did not consider a material clause in the Agreement hence the finding to the contrary recorded at by the trial Court has to be set aside. The finding which is given casually without reference to the record on the Agreement between the parties is no finding in the eyes of law hence it cannot be sustained. 20. Clause (xvi)(a) provides that the contractor shall be paid remuneration in respect of services prescribed in Para XX and performed by them at the contracted rates. Clause (xx) of the Agreement provides for services to be performed by the contractor. We have already quoted relevant portion of Part : I of this para earlier in our Judgment. Shri B.P.Tanna did not place reliance upon clause (xvi)(a) for the obvious reason that it is a general provision. He has, however, placed reliance upon clause (xvi)(b) of the Agreement which provides as under : If the contractors are required to perform any services in addition to those specifically provided for in the contract and the annexed schedule, the contractors remuneration for the same will be paid at the rate as negotiated and fixed by mutual agreement." 21. Placing reliance upon this clause, Shri Tanna contended that the contractor's remuneration for additional work other than specifically mentioned in the contract shall be paid at the rate as negotiated and fixed by mutual agreement. He further contended that the letters and Fax message were given by the plaintiff claiming enhanced rate for clearance as well as for transportation, but no action has been taken by the F.C.I. No negotiation took place nor any meeting was called between the officers of the F.C.I. and the plaintfif for ariving at mutual agreement and settlement for extra remuneration. It is because of this inaction of the F.C.I. that the plaintiff has filed the above mentioned Suit in the Court below. Mr.P.C.Kavina contended that if no action was taken by the F.C.I. or its officers it will be deemed that the request of the plaintiff was impliedly rejected. There is nothing like implied rejection of representation made by the plaintiff. If written representation was made by the plaintiff without loss of time claiming extra charges the same should have been considered and reply in writing should have been given to the plaintiff whether the extra claim was accepted or rejected. If no such written reply was given it will be deemed that no action was taken by the officers of the F.C.I. and not that the representations of the plaintiff have been impliedly rejected. There is no principle of law, general or administrative, that a representation which is not replied will be deemed to have been rejected. 22. Clause : XVI (c) of the Agreement further provides that the question whether a particular service is