Debangsu Basak, J. - (1.) IN or about October 1976 the Defendant Nos. 1, 2 and 3 formulated a scheme to increase the hired storage capacity of food grains for the Defendant No. 1 by offering private parties guaranteed occupation of such godowns for the periods from 3 to 5 years implying a mechanism to repay the loans that may be advanced by banks to private entrepreneurs availing of the scheme from out of the rent receivable. The plaintiff availed of the scheme and constructed 20 godowns for the Defendant No. 1 at Burdwan. According to the plaintiff, the Defendant No. 1 had agreed to take 20 godowns to be constructed by the plaintiff for an agreed period at an agreed rate. The plaintiff constructed the godowns in accordance with the specifications required by the Defendant No. 1. The Defendant No. 1 took two godowns and did not take the balance 18 in spite of offers by the plaintiff to the Defendant No. 1. The plaintiff offered the 18 godowns to Defendant No. 1 on April 4, 1979. The plaintiff, thereafter, approached this Hon'ble Court and obtained leave to let out those 18 godowns to third parties. The 18 godowns were let out to third parties on November 20, 1980. The plaintiff was, therefore, seeking compensation on account of rent for a period of 19 months at the agreed rate of 40 paise per square feet, for the area which the Defendant No. 1 did not takeover, and for the period, from the date when the godowns were ready, and the date when they were let out to third parties pursuant to orders of Court.
(2.) THE claim of the plaintiff was contested by the Defendant No. 1. The Defendant No. 1 filed a written statement. According to the Defendant No. 1, the construction of the godowns was not as per specifications. Moreover, the construction of the godowns was not completed within the stipulated time. The Defendant No. 1 also contended that, since there were defects in the godowns constructed they were not liable to pay such rent. Admittedly, according to the Defendant No. 1 the plaintiff did not cure the defects and as such the Defendant No. 1 was not liable to pay any rent. Although the plaintiff claimed various reliefs, it limited its claim at the hearing of the suit to two claims; one was the claim for compensation on account of unpaid rent for the period between April 6, 1979 and November 20, 1980 being about 19.5 months at the agreed rate of 40 paise per square feet for an aggregate area of 2,38,560 square feet and the other was a direction upon the learned Advocate on Record for the Defendant No. 1 holding the sums receivable by the plaintiff as rent to be made over to the plaintiff.
(3.) THE parties disclosed their respective documents. The plaintiff produced one witness who was examined -in -chief and cross -examined. The Defendant No. 1 also produced one witness who was examined and cross -examined. On behalf of the plaintiff it was contended that, pursuant to the scheme formulated by the Government the plaintiff undertook construction of the godowns. The parties to the suit entered into an agreement dated March 19, 1977 whereby the plaintiff agreed to construct 20 godowns within 6 months and the Defendant No. 1 agreed to take such godowns on rent for 5 years at the rate of 40 paise per square feet. Such construction was financed by the Defendant No. 2. According to the plaintiff, the Defendant No. 1 had extended the date of completion of construction from time to time and had agreed to take delivery in phases. In support of such contention the plaintiff relied upon letters dated March 27, 1978, September 20, 1978 and January 30, 1979 being Exhibits 'I', 'K' and 'L' respectively. The plaintiff also relied upon the certificate of completion dated January 18, 1980, June 23, 1979 and April 26, 1980 marked Exhibits 'O', 'V' and 'W' issued by the Defendant No. 1. The plaintiff contended that, the Defendant No. 1 took possession of two godowns on October 16, 1978 as would appear from the certificate of completion dated January 18, 1980 being Exhibit 'O'. According to the plaintiff, it had requested the Defendant No. 1 to take possession of the remaining godowns which were all ready for delivery from April 6, 1979 within the mutually agreed extended time for completion of such godowns but the Defendant No. 1 had failed and neglected to take possession of the same, which the plaintiff contended, was in breach the agreement dated March 19, 1977. The plaintiff relied upon various letters in support of the contention that, the plaintiff had made repeated requests to the Defendant No. 1 but the Defendant No. 1 had failed and neglected to do so. The plaintiff contended that, the godowns were constructed exclusively for the Defendant No. 1 and, therefore, it was not easily marketable. Finding that the plaintiff was not taking possession of the godowns in spite of repeated requests, the plaintiff approached this Hon'ble Court under Article 226 of the Constitution of India for permission to let out such godowns to third parties in order to mitigate the damages. Upon such writ petition, the High Court passed an order dated March 21, 1980 permitting the plaintiff to let out 18 godowns to third parties. Pursuant to such order, the plaintiff had let out 15 out of the 18 godowns on varying dates between September 1, 1980 to October 28, 1981. The total area comprised in the 15 godowns was 2,19,380 square feet. The agreed rate of rent payable by the Defendant No. 1 was 40 paise per square feet in respect thereof. The plaintiff was seeking compensation for the period between April 6, 1979 to November 20, 1980 from the Defendant No. 1.;