THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.C.C.A.No.28 of 1998 (Dated : 29-12-2010) Between: A.P.S.R.T.C rep. by its Vice Chairman & Managing Director Musheerabad, Hyderabad and another …Appellants A n d P.Krishna Kumar …Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.C.C.A.No.28 of 1998 JUDGMENT: ( Per Hon’ble Sri Justice B.Seshasayana Reddy) The defendants in O.S.No.218 of 1989 on the file of the V Additional Judge, City Civil Court, Hyderabad are the appellants. The respondent’s suit for specific performance has been decreed by the trial Court. 2. For the sake of convenience; the parties shall be referred to as the `plaintiff’ and `defendants’ throughout this appeal. 3. The Controller of Stores (Con)-1, A.P.State Road Transport Corporation, Musheerabad, Hyderabad-2nd defendant called for tenders for purchase of scrap tyres of 900X20 Nylan 14 ply tyres, by notice dated 6.4.1988. The approximate quantities of Scrap Tyres and Scrap Materials that would be available at various regions were shown in the Notification. The plaintiff submitted tenders for Bhagyanagar and Vizianagaram regions paying Earnest Money Deposit of Rs.25,000/- and Rs.15,000/- . He became the highest tenderer for Bhagyanagar region having offered a price of Rs.251/- per scrap tyre. His earnest money deposit of Rs.15,000/- deposited along with tender for Vizianagaram region came to be adjusted towards the amount, which he is required to pay for his being a successful tenderer for Bhagyanagar region. As per the terms and conditions of the tender, he was required to furnish balance security deposit of Rs.1,86,000/- either in cash or by way of bank guarantee. The plaintiff submitted bank guarantee for Rs.1,86,000/-. The bank guarantee furnished by him came to be returned for rectification of certain defects. The plaintiff received the bank guarantee for getting the defects rectified. He did not resubmit the bank guarantee. According to him, he inspected the Scrap tyres on 2.8.1988 and found that the scrap tyres were not meeting the specifications indicated in the tender notice and that the scrap tyres must be freshly removed tyres from the running buses of APSRTC. Some correspondence ensued between the plaintiff and the defendants. The defendants Corporation extended the time for furnishing Bank Guarantee as a special case up to 16.8.1988 under a letter dated 9.8.1988 (Ex.A.3). The plaintiff issued a reply dated 16.8.1988 (Ex.A.4) contending that he was to be provided with freshly removed tyres from the vehicle and that on making available such tyres, he would produce the Bank Guarantee and Income Tax clearance certificate. Since the plaintiff failed to furnish the bank guarantee for Rs.1,86,000/-, the defendants issued a notice on 21.9.1988 (Ex.A.5) directing the plaintiff to resubmit the bank guarantee within ten days from the date of receipt of the notice and in default, earnest money deposit of Rs.40,000/- shall stand forfeited and proceedings will be initiated for recovery of Rs.1,86,000/- and fresh tenders will be called for sale of 900X20 Nylon 14 ply tyres available in Bagyanagar Region and the plaintiff would be made liable for the result and loss, if any. Thereupon, the plaintiff filed the suit for specific performance of the agreement dated 13.7.1988 or in the alternative to direct the defendants to pay damages of Rs.22,59,000/- with interest at 12% per annum. 4. The defendants 1 and 2 filed written statement resisting the claim of the plaintiff. The sum and substance of the written statement is that the plaintiff is the defaulting party having not furnished the bank guarantee. The tender notification is clear that the successful tenderer has to lift the scrap tyres available in the respective regions and there is no term in the tender that the successful tenderer will be provided with freshly removed tyres from the running buses. It is also stated in the written statement that the scrap tyres are required to be taken by the successful tenderers AS IS WHERE IS BASIS only. There is also a clause as to Risk Sale. It means if tenderer fails to pay the security deposit within the stipulated time, the Earnest Money Deposit paid by the tenderer shall be forfeited by the Corporation and the above scrap tyres and scrap material shall be rendered at the risk of the previous defaulting purchaser. In case of any deficit in the tender, the Corporation shall realize such deficit together with cost and damages from the amount due from the Corporation in any manner according to law from the person and property of the previous defaulting purchaser but in case of excess in the re-tender, the previous defaulting purchaser shall not be entitled to such excess amount. 5. Basing on the above pleadings, the trial Court framed the following issues:- 1) Whether the plaintiff is entitled to specific performance of agreement dt.13.7.1988 or in the alternative, whether the plaintiff is entitled to damages of Rs.22,59,000/- with further interest as prayed for ? 2) Whether the defendants are entitled to counter claim of Rs.1,86,000/- with future interest @ 18% p.a from 2.3.1989 till realization as prayed for ? 3) To what relief ? 6. On behalf of the plaintiff, one witness was examined as Pw.1 and Exs.A-1 to A-6 were marked. On behalf of the defendants, one witness was examined as Dw.1 and Exs.B-1 to B-14 were marked. The trial Court on considering the material brought on record and on hearing the counsel appearing for the parties, decreed the suit granting specific performance of the agreement dated 13.7.1988 and also alternative relief of damages of Rs.22,59,000/- with interest at the rate of 12% per annum from the date of the suit till the date of realization, by judgment dated 14.7.1997. Hence, this appeal by the defendants. 7. Heard learned counsel appearing for the parties and perused the material brought on record. 8. Learned counsel appearing for the appellants-defendants submits that the trial Court granted decree for specific performance contrary to the clauses in the agreement dated 13.7.1988 and therefore, the judgment impugned in the appeal is liable to be set aside. He would also contend that the trial Court granted alternative relief of damages of Rs.22,59,000/- without there being any basis and rationale and in which case, the decree granting alternative relief is liable to be set aside. Learned counsel took me to the tender conditions and the agreement dated 13.7.1988. By referring the tender conditions and the clauses in the agreement, learned counsel contends that the agreement has become unenforceable since the plaintiff committed default by not furnishing the bank guarantee. In a way, his contention is that till the bank guarantee is furnished by the respondent-plaintiff, the contract is not concluded. In support of his contention, reliance has been placed on the decision of this Court in P.Purushotham Reddy v. M/s.Pratap Steels Ltd.[1] and the decision of Supreme Court in G.L.Killikar v. State of Kerala[2] and the decision of Madras High Court i n Marimuthu Gounder v. Ramaswamy Gounder[3]. In Purushotham Reddy’s case (1 supra), a Division Bench of this Court held that Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Court as to decreeing specific performance. The Court is not bound to grant specific relief merely because it is lawful to do so. It is true, the discretion conferred upon the courts is not arbitrary but is required to be exercised in a reasonable and sound manner guided by judicial principles. While exercising the discretion, the Court is required to meticulously consider all the facts and circumstances of the case. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. It is also held that in a specific performance of agreement of sale, the parties seeking equitable relief of specific performance must come to Court with clean hands. In G.L.Killikar’s case (2nd supra), the Supreme Court held that the plaintiff in order to succeed in a suit for damages for premature cancellation of a contract by defendant must establish that such cancellation was wrongful. In Marimuthu Gounder (3rd supra), the Madras High Court held that proof of actual damage is a sine qua non to seek damages. The person claiming has to plead such amount and to further substantiate it by acceptable evidence. 9. Learned counsel appearing for the respondent-plaintiff submits that as per the terms of the agreement dated 13.7.1998, the respondent-plaintiff under Ex.A.4 notice dated 16.8.1988 expressed his willingness to submit the rectified bank guarantee and also income tax returns and it is to be construed of his readiness as to the fulfillment of his obligation as provided under the agreement and making the opposite party i.e., appellants- defendants to accomplish their part by providing scrap tyres with specified specifications. He would also contend that the respondent-plaintiff issued Ex.A.5, notice dated 16.8.1988 indicating that he is prepared to furnish bank guarantee along with income tax returns. Instead of providing scrap tyres with the specified specifications, the appellants-defendants hurriedly issued telegraphic notice intimating the respondent-plaintiff regarding the forfeiture of the Earnest Money Deposit amount. Learned counsel took us to the evidence of Dw.1 to convince that the scrap tyres means tyres freshly removed from the running vehicles. Much emphasis has been laid on the relevant portion of the evidence of Dw.1, which reads as hereunder:- “ Scrap tyres means after removing the tyres from the vehicles they will be inspected by Asst. Mechanic Engineer (Tyres) he will certify the mass scrap tyre if they are not fit for futher use on the vehicle and also not retradable/reparable. On these things are not described in the tender Notice. The Asst. Mechanical Engineer (Tyres) will not put any seal or imprint on the scrap tyres after his certification. The plaintiff has submitted the Bank gurarantee within time. Witness adds: but it was invalid bank guarantee. Except samples no tyres were available at the scrap yard. Every stores will got a scrap yard. I do not know the number of Depots during the year 1988. The APSRTC got re-trading company/recapping unit. It varies from tyre to tyre of its re-trading. We have not obtained any signature of the participants and affixed to the scrap tyres. It is not true to say that the plaintiff shown the tyres to be sold. It is not true to say that the defendant has offered to show are not according to the samples whether the plaintiff did not intend to purchase. We have received the complaint under Ex.A.4 but we have not shown the tyres as stated. Witness adds that the contents of Ex.A-7 are false. It is not true to suggest that because APSRTC failed to supply 9000 scrap tyres as per the samples, the plaintiff sustained loss of Rs.22,59,000/-. Witness adds the agreement did not came into force”. 10. The issues that calls for adjudication in this appeal are:- 1. Whether the plaintiff is entitled for specific performance of agreement dated 13.7.1988 ? 2. Whether the plaintiff is entitled for alternative relief of damages of Rs.22,59,000/-? 11. ISSUE NO.1: Indisputably, the 2nd appellant-defendant issued notification calling for tenders for purchase of scrap tyres 900X20 Nylan 14 ply for various regions. The respondent-plaintiff submitted tenders for Bhagyanagar region and Vizianagaram region. He became successful tender for Bhagyanagar region having offered Rs.251/- per tyre. Clauses 8, 11 and 19 of the tender notification (Ex.B.2) need to be noted and they are thus:- “8. The successful tenderer will have to execute an agreement and furnish the Security Deposit for 10% of the value of the Contract. The EMD will be adjusted towards Security and balance amount is to be paid either in cash or Demand Drat in favour of `FINANCIAL ADVISER & CHIEF ACCOUNTS OFFICER, APSRTC, MUSHEERABAD, HYDERABAD’ or in the form of Bank Guarantee from a Scheduled Bank (valid for one year fro m the date of issue) as per or Proforma within seven days from the date of demand failing which the offer will be treated as null and void and the administration will be at liberty to forfeit the Earnest Money Deposit. No interest is payable on these deposits. 11. The Scrap Tyres and Scrap Material in this tender are sold in `AS IS WHERE IS BASIS ONLY’. The Tenders shall be permitted to inspect the sample of the above Scrap Tyres and Scrap Material at the respective places during office hours on any working day. The segregation of foreign material if any will be done by the Purchaser. 19. RISK SALE: If the Tenderer fails to pay the Security Deposit within the stipulated time, the Earnest Money Deposit paid by the tenderer shall be forfeited by the Corporation and the above Scrap Tyres and Scrap Material shall be returned at the risk of the previous defaulting purchaser. In case of any deficit in the retender, the APSRTC shall realize such deficit together with cost and damages from the amount due from the Corporation in any manner and according to law from the person and property of the previous defaulting purchaser but in case of excess in the retender the previous defaulting purchaser shall not be entitled to such excess amount.” 12. Pursuant to the plaintiff becoming successful tenderer for Vizianagaram region, an agreement came to be entered between the parties on 13.7.1988 (Ex.B.5). As per the terms of the agreement, the plaintiff has to submit bank guarantee. We deem it appropriate to refer the relevant term in Ex.B.5 agreement, which reads as hereunder:- “ The purchaser has agreed to submit the Bank Guarantee for Rs.1,86,000/- (Rupees one Lakh eighty six thousand only) in lieu of Security Deposit. The Security Deposit in the form of Bank Guarantee shall be retained by the Corporation till the successful completion of the contract at the above Region and it shall not carry any interest. The agreement comes into force only from the date of submission of Bank Guarantee”. 13. By reading the terms of the tender notification and the agreement dated 13.7.1988, they do not give any room for doubt that the contract comes into force after the plaintiff furnishes bank guarantee for Rs.1,86,000/- The terms also do not give any room for doubt that the purchaser has to lift the scrap tyres in `AS IS WHERE IS’ basis . It is nowhere indicated either in the tender notification or in the agreement that the purchaser is required to be provided with freshly removed tyres from the running buses. The whole grievance of the respondent-plaintiff is that the scrap tyres made available for verification on 2.8.1988 were not freshly removed tyres from the running buses. There is no such clause in the tender notification or in the agreement that the scrap tyres must be freshly removed tyres from the running buses. So, the plea advanced by the respondent-plaintiff that the scrap tyres were not meeting the requirements of specifications in the tender notification do not stand to reason. Instead, there is a specific clause in the tender notification that the scrap tyres are required to be lifted by the purchaser AS IS WHERE IS condition. There is no stipulated specification which the scrap tyre is required to comply. The plaintiff while being examined as Pw.1 admitted that the defendants returned the bank guarantee for rectification of certain mistakes and subsequently, he did not re-submit the bank guarantee. For better appreciation, we may refer the relevant portion of the cross-examination of Pw.1 in his own words and it is thus:- “ Ex.B-1 is the tender (copy of the tender)filed by me. Ex.B.2 is copy of terms and conditions of the tender. I have inspected the scrap tyres at Uppal Depot before filing the tender. My tender was for the purchase of said tyres. They were fit for use at the time of my inspection. It is not true to say that the defdt. did not promise me to sell the tyres of running buses. On 2.8.1988 I went to the site to lift the tyres. I have not seen the tyres prior to 2.8.1988 after entering into agreement. It is not true to say that I have not furnished Bank guarantee. The defendants have returned back the bank guarantee to me stating that there were some corrections and it was invalid. Ex.B-3 is the acknowledgment given by me for having taken back bank guarantee. It is true that thereafter we have not submitted any other bank guarantee. Witness adds: I have inspected the tyres on 2.8.88 and that when I was about to resubmit the bank guarantee the defendants have shown me the tyres which could not be used. It is not true to say that the defendants never agreed to supply me the tyres which could be used to ply. At the time of my inspection there were 14 plytures. It is not true to say that when I went to lift the tyres , they were the same tyres which I had inspected earlier. As per the agreement the bank guarantee was to be furnished within 15 days from the date of Agreement. Witness adds; defendants have extended time on my request for a period of one month. As the tyres were substituted with unsuitable tyres I did not furnish the Bank guarantee within extended period. I have received Ex.B-4 which is a letter dated 16.6.1988. Ex.B.5 is the agreement executed by me. Ex.B.6 is the letter written on 12.7.1988 taking extension of time for period of fortnight from 12.7.88. I have received Ex.B.7 the letter dated 14.7.88 written by the defendant. I have also received Ex.B.8 letter dated 9.8.1988. I have received the telegram dt.18.8.88, which is marked as Ex.B-9. I have received the telegram dt.26.8.88 which is Ex.B.10. I have received the legal notice dt.21.9.88 under Ex.B.11. I have also received the letter dt.1.12.1988 vide Ex.B.12. It is not true to say that the defendant agreed to supply the tyres whenever accumulated time to time. It is not true to say that I have not submitted the Income Tax clearance as per the agreement. It is not true to say that as per the Agreement the defendant undertook to supply those tyres which ply for 1000 kilometers and unfit for retrading. I got issued a notice for cancellation of the agreement when the defendants failed to supply agreed tyres. Again witness says I never wanted to cancel the agreement and I never asked to cancel the same. It is not true to say that I never shown my readiness to purchase the tyres in accordance with the agreement and that I am not entitled for the relief of specific performance much less damages and that I am liable to pay damages of Rs.1,86,000/- to the defendants and that by resealing the terms and conditions of agreement I made false claim and that the suit agreement never came in force”. 14. The evidence of Pw.1 is crystal clear that he did not resubmit the bank guarantee. As per the terms of the agreement, the contract comes into force after the respondent- plaintiff submits the bank guarantee. By the date of filing of the suit, the respondent-plaintiff did not resubmit the bank guarantee. It can be said without fear of contradiction that agreement has become unenforceable because of the respondent-plaintiff not furnishing bank guarantee. When the respondent-plaintiff is a defaulting party, he is not entitled for specific performance of the agreement dated 13.7.1988. The point is answered accordingly. 15. ISSUE NO.2:- With regard to alternative relief of damages, the plaintiff pleaded in para 10 of the plaint as hereunder:- “ In view of what is stated supra, the Plaintiff is entitled for specific performance of the tender which was culminated into agreement dated 13.7.1988 and is entitled for the supply of 9000 scarp tyres freshly removed from the running buses and in the event of this non-supply , the said agreement is incapable of performance on their part by the defendants , the plaintiff may be awarded with damages of Rs.22,59,000/- with interest @ 12% per annum from the date of suit till payment.” 16. The trial Court has not correctly read the terms and conditions of the tender and also agreement dated 13.7.1988 and thereby, erred in recording a finding that the defendants committed default and therefore, the plaintiff is entitled for specific performance of the agreement dated 13.7.1988. The plaintiff while being examined as Pw.1 did not specify as to how he assessed the damages of Rs.22,59,000/-. The plaint pleadings also are silent as to how the damages have been assessed. It is well settled that proof of actual damage is a sine qua non to seek damages. The person claiming damages has to plead such amount and to further substantiate it by acceptable evidence. Without there being any evidence, the trial court proceeded to accept the plea of the plaintiff with regard to the damages. The finding recorded by the trial Court on this issue cannot be sustained. The respondent-plaintiff is not entitled to claim damages from the appellants-defendants. 17. In the result, the appeal is allowed with costs setting aside the judgment and decree dated 14.7.1997 passed in O.S.No.218 of 1999 on the file of V Additional Judge, City Civil Court, Hyderabad. Consequently, the suit filed by the respondent-plaintiff shall stand dismissed with costs. _____________________ B.SESHASAYANA REDDY, J ________________ P.DURGA PRASAD, J Dt.29-12-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.C.C.A.No.28 of 1998 (Judgment of the Bench delivered by Hon’ble Sri Justice B.Seshasayana Reddy) (Dated : 29-12-2010) [1] 2002(5) ALT 438(D.B) [2] AIR 1971 SUPREME COURT 1196 [3] AIR 1979 MADRAS 189