- (1.) The appellant in this appeal with certificate from the judgment and decree of the Allahabad High Court, had in February 1944 submitted a tender for the supply of meat to the army authorities at Allahabad and Banaras. This tender was accepted in March 1944 for the supply of meat for one year from April 1, 1944 to March 31, 1945. The formal acceptance was conveyed on May 18, 1944. The controversy centres round the condition contained in para 51 of the special conditions for the meat supply. This condition reads as under : "51. (a) No enhancement of rates will be considered in the case of contracts concluded for periods of 3 or 6 months. (b) In the case of annual contracts, revision of rates i.e. increases or decreases, will be provided for, but no revision will be considered or allowed within six months of the commencement of the contract. (c) Rates for annual contracts will be subject to review, according to the rise or fall of market rates by referees appointed by Government, the reviewing Tribunal for contracts to consist of the Deputy Commissioner or his representative, the C. R. I. A. S. C. or his representative and the local purchase officer (Military). The three members will constitute a quorum. The contractor will attend to present his case, but will not be a member of the Tribunal. The final recommendation in all cases reviewed, shall rest with the officer sanctioning the contract."
(2.) On September 4, 1944 the appellant wrote a letter to C. R. I. A. S. C. (Commander Royal Indian Army Supply Corps) Lucknow, requesting for increase of rates. In October, 1944 he sent a reminder praying for immediate increase of the existing rates as contemplated by condition 51(b). In December, 1944 a Tribunal was constituted at Allahabad for the purpose of reviewing the contract rates of the supply of meat at Allahabad. After considering the matter from the various aspects brought to the notice of the Tribunal, recommendation was made for enhancing the rates as contained in Ex. G. On April 24, 1945 the appellant applied for the refund of the security amount of Rs. 18,100 paid by him along with the tender. Along with this application a 'No Demand Certificate' was given by the appellant. The appellant thereafter sent several reminders to C. R. I. A. S. C. regarding enhancement of the contract rates. On January 2, 1946 the appellant inquired from C. R. I. A. S. C., Lucknow as to when the question of enhancement of rate would be finally settled (Ex. 15). In reply to this inquiry on January 9, 1946 the headquarters at Lucknow informed the appellant that his case had been held up at the headquarters pending inquiry from the civil authorities about the market rates (Ex. 19). A copy of this letter was also sent to the O. C. I. S. S. D., Banaras, with the following note: "Reference your No. 0709-C of 9th December, 1945. Please obtain the Civil Market rates personally in consultation with the Civil Authorities and arrange to hold tribunal with reference to this office No. 8601-ST of 3rd July, 1945. The proceedings of tribunal together with the documents referred to in this office No. 8601-ST. 13th of April, 1944 should immediately be forwarded to this H. Q. for submission to higher authorities". After some further correspondence between the appellant and the headquarters at Lucknow on March 26, 1946, the latter wrote to O. C. I. S. S. D., Allahabad that the prayer for the revision of contract rates for the supply of meat by the appellant at Allahabad had been rejected by the higher authorities (Ex. 25). On April 7, 1946 the appellant wrote a letter to the headquarters at Lucknow requesting them to supply him the reasons for the rejection of his claim by the higher authorities. On April 15, 1946 the appellant was asked to attend the meeting of the Tribunal on April 29, 1946 for representing his case. This letter was received from the O.C.I.S.S.D., Banaras. On April 17, 1946 the appellant was informed by the headquarters, Lucknow that he should take up the matter direct with the headquarters Central Command. In the meantime on March 30, 1946 a notice was issued by the B. R. I. G. on behalf of the Major General Incharge Administration Central Command, notifying, inter alia that no fresh claim for revision of R. I. A. S. C. contract rates or for the reopening of cases on which decision had already been made would be entertained after May 15, 1946 in regard to contracts for the period ending March 31, 1945 (Ex. 73). On May 6, 1946 the appellant wrote to C. R. I. A. S. C. at Lucknow for the enhancement of rates. On May 10, 1946 the appellant served a notice through his lawyer on the headquarters demanding revision of the department's decision rejecting his claim for enhancement failing which legal action was threatened. A copy of this notice was also sent to C. R. I. A. S. C. at Lucknow with reference to their letters dated March 26, 1946 and April 17, 1946 (Ex. 29). On May 14, 1946 the Tribunal at Banaras also recommended enhancement of rates (Ex. H). On June 10, 1946 the appellant wrote a letter to the Controller of Military Accounts, Central Command, Meerut, stating that his 'No Demand Certificate' accompanying his request for the refund of security money had been inadvertently furnished and should be treated as cancelled because the matter regarding enhancement of rates was under consideration with the authorities. It was added that the appellant would submit a 'No Demand Certificate' for refund of the security money as soon as his claim for enhancement of rates was settled. On June 21, 1946 the appellant sent an express telegram to B. R. I. A. S. C. Command, Agra requesting for expeditious payment of his dues without resorting to litigation. On June 22, 1946 B. R. I. A. S. C., Central Command wrote to the appellant's lawyer in answer to the letter dated May 10, 1946 and telegram June 21, 1946, stating that the claim was being investigated and the decision arrived at would be communicated to him in due course (Ex. 32). Thereafter repeated inquiries were made by the appellant about the probable date of the settlement of his claim but every time it was said that the matter was still under consideration and that the decision would be communicated in due course. It is unnecessary to refer to the correspondence in detail. The last reply on these lines was sent to the appellant on December 13, 1947 (Ex. 50). After serving another reminder on March 15, 1948 the appellant sent a statutory notice under Section 80, Civil P. C. on May 3, 1948 and instituted the present suit in November, 1948, claiming a decree for Rs.1,15,735/6/8 with future interest. This amount included enhanced rates for the supply of meat and security deposit and interest thereon. The claim in regard to enhanced rates was resisted by the respondent. It was pleaded in the written statement, inter alia, that the final recommendation in regard to enhanced rates rested with the officer sanctioning the contract, who was stated in the additional pleadings to be the Commander Lucknow District, and that the said officer had declined to sanction enhanced rates. The appellant's right to the refund of the security money was conceded but it was pleaded that he could receive that money only on furnishing a 'No Demand Certificate' as required by the agreement.
(3.) The following issues were settled at the trial: 1. Whether there was a rise in the market rates of goods supplied by the plaintiff as alleged by him 2. If so, was plaintiff entitled to enhancement in the contractual rates in terms of the tender and agreement 3. What is the effect of the reference to the Tribunals 4. Were the old rates mentioned in the tender abandoned 5. Is the suit not maintainable as pleaded in paragraph 24 of the written statement 6. What is the effect of the revocation by the plaintiff of the 'No Demand Certificate' 7. (a) Is the claim excessive as pleaded (b) Is the plaintiff not entitled to any interest 8. To what relief if any is the plaintiff entitled 9. Is the plaintiff' s suit barred by time ;