RSA No. 1336 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1336 of 2008 (O&M) Date of Decision: 03.5.2011. Food Corporation of India .......Appellant Vs. Satvinder Singh ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. H.P.Verma, Advocate for the appellant. Mr. Arun Jain, Senior Advocate with Mr. Sunil Sharma, Advocate for the respondent. ..... SABINA, J. Plaintiff had filed a suit for recovery of ` 6,64,854.76 P. The case of the plaintiff-corporation in brief was that the tenders had been invited by the corporation for storage, handling and transport of the paddy. The tender of defendant was accepted and he was informed in this regard vide telegram dated 1.4.1986. Defendant was asked to deposit the security amount of ` 45,000/- with the District Office, Food Corporation of India, Patiala by 7.4.1986. The defendant, however, failed to deposit the security amount and join the work within the stipulated period. The contract was terminated by the Senior Regional Manager of the corporation. Since the defendant had RSA No. 1336 of 2008 (O&M) -2- failed to execute the work in terms of the tender dated 26.11.1985, the plaintiff corporation had to execute the work of handling and transportation at Food Storage Depot, Ghagga by calling fresh tenders. Satpal was appointed as adhoc contractor for three months and he joined the work on 27.4.1986 and during the said period, an amount of ` 3,81,724.79 ps. were paid to him in excess as risk and cost charges for the work done by him. Thereafter, tender was issued in favour of Naresh Kumar and he joined the work on 23.10.1986. Naresh Kumar was paid ` 1,79,344.97 ps. in excess as risk and cost charges. Since the defendant had failed to carry out the work during the period from 27.4.1986 to 10.4.1987 at his risk and cost, in terms of the tender dated 26.11.1985, he was liable to pay the risk and cost charges to the plaintiff which had been suffered by the corporation due to non performance of work by the defendant. Hence, the suit for recovery was filed by the corporation. Defendant, in his written statement, denied the contentions in the plaint. It was averred that the defendant had not executed the agreement with the corporation. Defendant had neither applied for any such tender nor any negotiation had taken place for any such work between the corporation and the defendant. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the suit has been competently filed on behalf of the plaintiff firm? OPP 2. Whether the defendants failed to execute the works in terms of the agreement between the RSA No. 1336 of 2008 (O&M) -3- parties and is liable to pay sum of Rs. 5,61,069.76 Ps. for non-execution of the work by way of compensation/damages on the grounds mentioned in the plaint? OPP 3. Whether the defendants were also liable to pay interest on unpaid amount, if so at what rate and what amount? OPD 4. Whether the suit is not maintainable on account of objection No.1 in the written statement? OPD 5. Whether the defendants are entitled to claim compensatory costs as given under Section 35-A CPC, if so, to what amount? OPD 6. Relief.” Additional Civil Judge (Senior Division) vide judgment and decree dated 30.4.1997, decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, defendant preferred an appeal and the Additional District Judge vide judgment and decree dated 23.2.2008 allowed the appeal. Consequently, the suit filed by the plaintiff was dismissed. Hence, the present appeal by the plaintiff corporation. Learned counsel for the appellant has submitted that the plaintiff corporation had been successful in proving its case. The defendant had agreed vide application Ex.PW-6/A that his earlier security be adjusted qua the new tender. Learned counsel for the respondent, on the other hand, has submitted that the tender in question was neither signed by the defendant nor the defendant had sought work from the plaintiff corporation. RSA No. 1336 of 2008 (O&M) -4- After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. In the present case, the case of the plaintiff- corporation was that the tender (Ex. P-2) in dispute had been duly signed by the defendant. The said document runs into 40 pages. The defendant, on the other hand, denied his signatures on the tender (Ex. P-2). Both the sides had examined their respective hand writing experts to substantiate their pleas. The experts, examined by both the sides, had given their opinion in favour of the party, who had examined them. A perusal of the tender (Ex. P-2) reveals that as per clause 5(b)(iv), if the successful tenderers had previously held any contract and furnished the security deposit, the same shall not be adjusted against this tender and a fresh security deposit will be required to be furnished. Admittedly, the defendant had not furnished any fresh security in terms of the said contract. The case of the corporation is that as per letter (Ex. PW-6/A), defendant had requested the corporation that the security of ` 10,000/-, earlier deposited by him, be adjusted in the present tender. However, no date qua its execution has been mentioned in Ex. PW-6/A. Moreover, the said request of the defendant ran contrary to clause 5(b)(iv) of the tender (Ex.P-2). No order was passed by the corporation on the request (Ex.PW-6/A) made by the defendant. The corporation placed reliance on telegram dated 1.4.1986 (Ex.P-1) to substantiate its plea that the offer of the defendant was accepted by the corporation but no postal receipt had been proved on record as to whether the telegram was actually sent to the defendant. As per condition No.4, tenders not accompanied RSA No. 1336 of 2008 (O&M) -5- by earnest money, shall be summarily rejected. Since the tender form was incomplete, the same could not have been accepted by the authorities as the defendant had not deposited ` 9,000/- towards earnest money or ` 4500/- towards security. In these circumstances, the suit filed by the corporation was liable to fail. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE May 03, 2011 Gurpreet