ARIJIT PASAYAT, J. - (1.) THESE two appeals have a common matrix. The Food Corporation of India and Others are the appellants in Civil Appeal No. 7440 of 2000 while the respondent in the said appeal is the appellant in the other appeal i.e. Civil appeal No. 2540 of 2002. Parties in this judgment are described as per Civil Appeal No.7440 of 2000.
(2.) CHALLENGE in these appeals is to the judgment of a Division Bench of the Gujarat High Court holding that the suit filed by plaintiff (respondent) was to be partly decreed for recovery of Rs.68,02,973/- from the defendants i.e. present appellants together with pendente lite and future interest at the rate of 6% per annum with appropriate cost throughout. It is to be noted that the respondent had filed a suit (Civil Suit No. 6040 of 1994) before learned City Civil Judge Ahmedabad for injunction restraining the appellant No.1- Corporation and its functionaries from recovering and/or withholding any amount from the bills of the respondent herein and also for a declaration that action of appellant No.1- Corporation in recovering various amounts without deciding the rates for extra work was bad in law and for directing the appellant-Corporation to make payment for the extra work at the rates demanded by the respondent. It was averred that as per the tender notice the respondent herein was required to handle 750 MT per day as per the charter party and for handling for which rate was fixed at Rs.108 per MT. It was further stated that the appellant-Corporation by the letters dated 30.9.1994, 14.10.1994 directed the respondent herein to handle more cargo than what was prescribed above and consequently the respondent herein started handling cargo to the tune of 1200 to 1300 MT per day against the contracted rate of 750 M.T. In view of the accelerated discharge, the respondent had to incur additional expenses towards enhanced rate of wages, payment to the workers and demurrage to wagons. The respondent claimed that its entitlement for enhanced transportation charges was Rs.45 per MT in place of Rs.15 per MT which was stipulated in the contract. The appellant No.1-Corporation in its written statement took the stand that it had no intention of withholding any payment demand as per the terms of the contract and that whatever bill was raised as per the terms of the contract had been paid and the final bill had not been settled as yet. On the claim towards additional expenses due to the accelerated discharge, the Corporation contented that as per the terms of the contract the respondent herein was bound to carry out discharge so as to avoid any demurrage being incurred and it was bound to follow the rules and regulations of the Port authorities under which it had to discharge at a faster rate. The Corporation also denied that the respondent had incurred any extra expenses because of the accelerated discharge. The appellant-Corporation also denied the claim towards enhanced rate for transportation charges. Subsequently the respondent herein amended the claim to an amount of Rs.68,07,113.20 with interest at the rate of 18% per annum from the due date. Towards stevedoring charges the respondents herein claimed Rs.215/- per MT instead of agreed rate of Rs.108/- per MT. A sum of Rs.51,20,263.70 was claimed as the difference. The respondent further claimed the enhanced transportation charges and on that account claimed an additional sum of Rs.12,84,847.50. The appellant-Corporation filed its additional written statement denying the claim for enhanced compensation. Learned Civil Judge (Court No.14), Ahmedabad framed the following issues for determination. (i) Whether the Court has jurisdiction to entertain the suit? (ii) Whether the Plaintiff proves that the Plaintiff appointed as contractor for stevedoring, clearance for transportation at Kandla Port pursuant to the tender? (iii) Whether the Plaintiff proves that the plaintiff was carrying out a work of transport and handling the cargo as per the terms and conditions of the tender? (iv) Whether the plaintiff is entitled to the enhancement rate from Rs.108/- per M.T. to Rs.215/- per M.T. as alleged? (v) Whether the plaintiff proves that the plaintiff was unloading the quantity of the goods more than stipulated in the tender? (vi) Whether the plaintiff is entitled to recover the amount from the defendant as prayed in para 12(A) and (B) of the plaint? (vii) What order and decree? The learned trial Judge decided issues (i), (ii), (iii) and and (v) in favour of the Respondent/Plaintiff. However, the learned Judge dismissed the suit on the basis of findings in issue Nos. (iv) and (vi).
(3.) THE following findings inter alia were recorded by learned trial judge. (i) Clause XX (1)(i) of the contract provided for a minimum discharge rate of 750 M.T. per day as provided in the Charter Party, so that the vessel would not suffer any demurrage. Thus, the Respondent herein (Plaintiff) had carried out the work of handling cargo as per the terms of the contract. (ii) THE Appellant Corporation (Defendant) had insisted for discharge of cargo at higher rate with a view to comply with the direction of the port authorities. THE Respondent Plaintiff had discharged additional quantities. Clause 41 of the contract provides that the contractor shall comply with the rules and regulation of the Port Authorities, and since the Port Authorities had demanded discharge at faster rate the Respondent herein (Plaintiff) was under obligation to discharge at faster rate. (iii) In any event, the Respondent (plaintiff) had not established by evidence any additional cost incrred by him for such additional discharge. (iv) THE Respondent (Plaintiff) was entitled to only contractual rate of Rs.108/- per M.T. and not at higher rate of Rs.215/ per M.T. (v) THE claim for enhanced rate for additional quantity discharged under S.70 of the Contract Act on the principle of quantum meruit would not be applicable since there was a stipulation under the contract for payment at the rate of Rs.108/- M.T only. On the basis of the aforesaid findings the suit was dismissed. Aggrieved by the above judgment respondent herein filed First Appeal No. 2678 of 1999 before the Gujarat High Court. A Division Bench of the Gujarat High Court reversed the judgment of the trial court and decreed the suit for a sum of Rs.68,02,973/- with interest at the rate of 6% from the date of suit.;