M.N. FAROOQI Vs. STATE OF UTTARANCHAL
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
M.N. Farooqi son of Sri Abdul Hameed r/o Ajanta House, Ganga Vihar, Haridwar Road, District - Dehradun
State of Uttaranchal through Executive Engineer Establishment Division Workshop, Roorkee, District -Haridwar
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Hon'ble U.C. Dhyani, J. -
(1.) THIS appeal, preferred by the plaintiff/appellant, under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 20.11.2002 passed in Civil Appeal No. 169 of 2001, whereby learned Additional District Judge/4th F.T.C Dehradun has partly set aside and modified the judgment and decree dated 21.08.2001 passed by the then Civil Judge (Senior Division), Dehradun in Original Suit No. 427 of 1996 titled as M.N.Farooqi vs. State of U.P. whereby plaintiff's suit was decreed against the defendants for Rs. two lacs along with the interest at the rate of 10 % per annum pendente lite and future. Brief facts of the case are that original plaintiff/appellant M.N.Farooqi instituted Original Suit No. 427 of 1996 for a decree for the recovery of Rs. 2 lacs in his favour along with interest at the rate of 2% per mensem pendente lite and future against the defendant/respondent State of Uttar Pradesh. It was averred in the plaint that he was carrying on a business of contractor in the name of M/S Ajanta Arts Service as its sole proprietor at Rishikesh, District Dehradun. The Executive Engineer (Establishment) Ex. En. U.P. Government Workshop, Roorkee issued a notice dated 03.08.1994 inviting tenders for the following works :
i. Painting with coaltar apoxy paint after sand blast and primer coating shutter and its parts of radial gate in bay No. 1, 2 & 3 of Jawalapur Head Regulator site at Km. 6.04 of Upper Ganga Canal Modernization (World Bank) Project. The approximate quantity of the work was 6.50 sq. meters. In the execution of the work apoxy zinc rich primer and coaltar apoxy were to be issued (lot No. 1).
ii. Painting with coaltar apoxy paint sand blast cleaning and primer coating shutter and its parts of radial gates in bay nos. 4, 5 & 6 of Jawalapur Head Regulator site at Km. 6.04 of upper Ganga Canal Modernisation (Word Bank) Project. The estimated quantity of the work was 650 sq. meters. The paints to be used in the execution of the work apoxy zinc rich primer and coaltar apoxy (lot No. 2.).
iii. Painting with synthetic Enamel Paint after primer coating on hoist bridge and hoist assembly in 1 no, bays of Jawalapur Head Regulator and cross regulator site at 6.4 k m of upper Ganga Canal Modernization (Word Bank) Project. The estimated quantity of the work was 2150 sq. meters. The paints and the primer to be used were red oxide primer and synthetic enamel (lot No. 3).
(2.) THE plaintiff deposited a sum of Rs. 16,000/ - as earnest money along with tender in respect of the aforesaid three works in the form of post office Savings Bank Account duly placed in favour of the Executive Engineer (Establishment), Roorkee. The period of execution of work in respect of lot No. 1 and lot No. 2 was 15 days each and in respect of lot No. 3 was one month. The Executive Engineer accepted the rates kept by the plaintiff/appellant in respect of lot No. 1 and the acceptance was communicated through letter dated 30.09.1994. The plaintiff/appellant was required to deposit Rs. 20,000/ - security money either in the form of Savings Certificate or Savings Bank Account duly pledged in favour of the Executive Engineer (Establishment). The plaintiff/appellant was further required to submit stamp papers worth Rs. 1950 for executing the work within a week. The Executive Engineer accepted the rates kept by the plaintiff /appellant in respect of lot No. 2 and communicated the acceptance through letter dated 30.09.1994. He directed the plaintiff to deposit Rs. 20,000/ - as a security money either in the form of Savings Certificate from post office or Saving Banks Account duly pledged in favour of Executive Engineer for a period of six months and to submit stamp papers of the value of Rs. 1950 for executing the agreement within a week. The plaintiff/appellant on receiving the letter informed the Ex. En. vide letter dated 06.10.1994 that the post office and banks were closed for the last four days due to imposition of curfew and in such circumstances, the Savings Certificate or Savings Bank Account could not be furnished. The plaintiff/appellant requested the Ex. En. to deduct the amount of the security money in respect of both the lots from the first ruing bill. Stamp papers up to the value Rs. 1950+1950 were submitted in the office of Ex. En. along with the tender letter dated 06.10.994. It was also averred in the plaint that the plaintiff/appellant through his letter dated 15.10.1994 informed the Executive Engineer that he has made arrangements for material, tools, plants and labour for the execution of work. On that day signatures of plaintiff/appellant were obtained on the agreements. The plaintiff was informed on 07.10.1994 that the Canal was likely to be closed on 14.10.1994. Plaintiff/appellant was informed that the closure of Canal has not been notified in the gazette and it was expected to be notified in a day or two, as usual period of closure was from the middle of October to the end of October. The plaintiff/appellant again sent a letter dated 17.10.1994 to the Executive Engineer requesting for intimating the date of closure and also requested that a copy of the agreement be furnished to him. On 17.11.1994 Executive Engineer informed the plaintiff/appellant that the canal has not been closed in the month of October, 1994 and therefore, execution of the work was not possible. Ex. En. cancelled the acceptance of the tender vide letter dated 17.11.1994. The plaintiff/appellant made arrangements for paints, labour etc. in the second week of October, 1994 and the labour remained engaged till the receipt of letter dated 17.11.1994. The plaintiff / appellant suffered loss due to cancellation of acceptance of tender. The paint which was to be used in the aforesaid works was not a marketable item. It was manufactured specially according to the demand. plaintiff / appellant requested M/S Rishikesh Hardware for the supply of the required quantity of primer and paints. The plaintiff / appellant paid a sum of Rs. 15,000/ - in cash and Rs. 33,500/ - by cheque to M/S Rishikesh Hardware as advance and promised to pay the balance price of paint and primer on lifting of said items. plaintiff / appellant assured M/S Rishikesh Hardware that he would purchase the primer along with paints and on the assurance of plaintiff / appellant, M/S Rishikesh Hardware placed order for the supply of primer and paint with the manufacturer. The total cost of paint and primer was Rs. 2,43,677/ -. The life of paint is only six months and thereafter the paint cannot be used. The plaintiff / appellant could not procure any other contract in the month of October and November due to the aforesaid works. The plaintiff / appellant gave contract to Shri Surendra Datt Joshi for painting work as the labour required for painting was to be provided by Surendra Datt Joshi. His services were engaged on 11.10.1994 and he was paid a sum of Rs. 10,000/ - as advance. The plaintiff / appellant gave the contract for carrying out the work of sandblast cleaning to one Shri Santosh Kumar. He engaged his services for the said work on 12.10.1994. He was to be provided required labour for execution of the aforesaid work and was paid a sum of Rs. 15,000/ - as advance. According to the plaint the plaintiff / appellant suffered following losses due to non -execution of the work :
(3.) PLAINTIFF / appellant sent a notice under Section 80 C.P.C. dated 28.01.1995 to the defendant/respondent saying that he is small scale entrepreneur and is entitled to recover the said amount along with interest at the rate of 2 % per mensem from 10.101.994 till the date of payment by way of interest as well as by way of damages.;
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