- (1.) This is plaintiff's appeal under Section 96 of the Code of Civil Procedure arising from judgment and decree dated 07.12.1999 passed by Sri Chandramauli Shukla, Additional Civil Judge (Sr. Div.), Shahjahanpur, decreeing partly, plaintiff's Original Suit No. 120 of 1993.
(2.) Food Corporation of India (hereinafter referred to as 'FCI') the plaintiff, instituted aforesaid Original Suit No. 120 of 1993 in the court of Additional Civil Judge (Sr. Div.), Shahjahanpur for recovery of Rs. 57,15,705/- from defendants and also interest at the rate of 18% per annum on the aforesaid amount, pendente lite, besides cost of suit.
(3.) The plaint case set up by plaintiff FCI is that it is a statutory body established under Food Corporation Act, 1964 (hereinafter referred to as 'Act, 1964') having its Headquarters at 16-20, Barakhamba Lane, New Delhi and Regional Office at 506, Habibullah Estate, Hazratganj, Lucknow. The tender for construction of 30,000 MT capacity godowns at Butter Complex, Roza Road, Shahjahanpur was called on 11.05.1987. Defendant no. 1, M/s Raibareilly Construction Company through its managing partner Sri Kamlesh Kumar Singh, submitted tender and it was accepted vide telegram dated 21.07.1987. An agreement was executed between FCI and defendant no. 1 on 27.12.1987. The estimated cost and tender value of the work were Rs. 1,26,23,488/- and Rs. 1,51,22,933/- respectively. The stipulated date of start and completion of work were 28.07.1987 & 27.10.1988 respectively as per agreement. Defendant no. 1 commenced work pursuant to agreement and executed it till 30.04.1990. It failed to complete work despite given sufficient extension of time and notices. The defendants abandoned the work of construction on 01.05.1990 without any intimation to plaintiff FCI. Show cause notice dated 27.04.1989 was served by registered post but remained un-replied by defendant no. 1. The defendants tendered several undertakings on different dates to complete work but failed every time. The plaintiff ultimately rescinded the contract by notice dated 25.07.1990. The defendants were served a notice to attend joint and final measurement of work performed by them on 27.08.1990, as per the procedure, failing which measurement work would be done ex-parte which would be final and binding upon defendants. Again defendants failed to attend joint measurement and final measurements were taken in their absence. The plaintiff was always ready and willing to execute and perform his part of contract but the defendants failed to perform their contract and complete the work within stipulated period. The time was essence of the contract. Since remaining work was got to be done, plaintiffs had to proceed for further tenders. The loss, if any, to be suffered by plaintiff, the defendants were liable thereto. The plaintiff incurred an extra cost of Rs. 45,21,973/- in getting balance work completed. The details of balance work and the manner in which it was completed by third party, was explained in para 18 as under:- 589662-3;