- (1.) THIS first appeal arises from a suit instituted by the Harda Electric Supply company (Private) Limited (hereinafter called the Company) against the Municipal committee, Harda (hereinafter called the Municipality) for recovery of Rs. 50,000/-as damages and for other alternative reliefs. The suit was resisted by the municipality, The Additional District Judge, Hoshangabad, passed a decree for Rs. 40,000/ -. The Municipality has filed this appeal the Company has filed cross-objections.
(2.) THE plaintiff's case was that by an agreement dated July 31, 1936, the Electro mechanics Ltd. , Bombay, agreed to supply the Municipality with electric energy for the purpose of pumping approximately 3 lac gallons of water daily. The agreement was to operate for 25 years. Of the terms and conditions contained in it one was that the water pumped per unit would not be below 1000 gallons on an average "at the specified head of 130 feet". By another clause, it was agreed between the contracting parties that the Municipality would pay to the Company two annas per unit of energy consumed. On November 29, 1939, the said Electro Mechanics Ltd. , assigned all their right, title and interest in the aforesaid agreement to the plaintiff-Company by virtue of a deed. In or about the year 1944 the Municipality, by surreptitiously making or opening new tappings and by directly pumping water through them, lowered the pumping head so that the discharge of water per unit increased and the Company was consequently put to loss of income. When the Company became aware of the resultant breach of the agreement, on the part of the Municipality, it protested. After some correspondence, the Municipality, by its resolution No. 4 dated October 15, 1951, agreed to pay to the Company 20 per cent surcharge on the total units consumed every month. This was accepted by the Company. Later on the municipality resiled from this subsequent agreement for additional payment (hereinafter called the supplementary agreement ). Calling it a concluded contract, the plaintiff-Company claimed a decree for Rs. 12,206/5/3 for the period between 1-4-1950 and 31-3-1953 and Rs. 20,667/8/9 for the period between 1-4-1953 and 30-9-1956, total Rs. 32,873/14/ -. Alternatively, it claimed a sum of Rs. 40,000/- on the basis of the right-to enhance rates under the Electricity (Supply) Act, 1948. As a second alternative, the plaintiff claimed a decree for Rs. 48,707/1/3 as damages for loss of income caused by pumping larger quantities of water for fewer number of units. This claim was for the period between 1-4-1950 and 30-9-1956. In addition to this, the plaintiff claimed damages for injury to the machinery and plant due to overloading: Rs. 2,650/1/9 actually expended on repairs and Rs. 9,349/14/3 as compensation for the shortening of life of the pumping eets by wear and tear, total rs. 12,000/ -. The appellant resisted the suit, inter alia, on the ground that no new tappings were made by the Municipality. By the existence and working of the tappings the water head was not appreciably lowered, that is, to 80 or 85 feet, as alleged by the plaintiff. Even if there was any such lowering of the water head, it did not in any way offend against the terms of the agreement; nor did it cause any damage to the plaintiff's pumping sets. The stipulation as to 130 feet head in Clause 10 of the agreement meant and had always been understood to mean that it was the maximum height; there was no restriction for lowering the height to which water would be pumped either to fill up the reservoir or to supply water by direct pumping to some parts of the town. At the most, the total head might have been lowered to 112 or 113 feet only. The plaintiff-Company should have installed 25 bhp instead of 20 BHP motors. The Company was entitled only to the rates fixed in the agreement and to no enhanced rates. There was no concluded contract for payment of 20 per cent surcharge and if there was any, it was not enforceable against the Municipality.
(3.) THE trial Judge has found that the Municipality committed breach of the agreement. The supplementary agreement which was initiated under the resolution of the Municipality was binding on it and it was estopped from resiling from it. The plaintiff was entitled to realise 20 per cent surcharge upto 31-3-1953, the amount being Rs. 8,093/8/ -. The plaintiff was entitled to charge the defendant at enhanced rates, the amount allowable being Rs. 40,000/ -. The plaintiff was alternatively entitled to compensation for damages on account of loss of income to the extent of Rs. 38,707/1/3. The plaintiff was further entitled to Rs. 2,650/1/5 by way of damages for injury to the plant and machinery of the pumping sets. In the result, he passed a decree for Rs. 40,000/ -.;