Soumen Sen, J. - (1.) THIS is an application under Chapter XIIIA of the Original Side Rules of this Court for recovery of a sum of Rs. 42,33,423/ -.
(2.) ON 12th January, 2011, the plaintiff instituted a suit being CS No. 7 of 2011 praying, inter alia, for a decree for a sum of Rs. 42,33,423/ - against the defendant along with interest. The case of the plaintiff in short is stated hereinafter. On 11th February, 2009, the defendant floated a tender for purchase of whet by bulk consumers pursuant to the said tender. The plaintiff participated in the bid for lifting 10,000 quintals of wheat under OMSS (D) at the rate of 1138.63p per quintal. The offer of the plaintiff was accepted and the plaintiff was directed to deposit a sum of Rs. 1,14,43,232/ - by 8th of March, 2009 being the total cost of food grains. On 4th March, 2009, the plaintiff deposited a sum of Rs. 1,03,04,602/ - being the price of 10,000 quintals of wheat at the rate of 1138.63p per quintal along with market fees at the rate of 0.5% less the earnest money deposit amounting to Rs. 11,38,630/ -. The plaintiff also paid the balance security deposit. The defendant issued two release orders dated 4th March, 2009 and 5th March, 2009 respectively allotting 7500 and 2500 quintals of wheat to be lifted by the plaintiff from its Cossipore godown by 8th March, 2009. On 6th March, 2009, the plaintiff requested for permission to lift the allotted wheat by 60 lorries per day. The defendant, however, allowed the plaintiff to deploy 20 trucks on its godown to lift the stock of wheat. Between 6th of March, 2009 and 7th March, 2009, the plaintiff lifted 2606.21 and 2509.29 quantities of wheat respectively aggregating to 5115.50 quintals of wheat from the Cossipore Depot. The Cossipore Depot, however, could not deliver the balance quantity of 4884.50 quintals of wheat due to exhaustion of stock. The plaintiff was directed to lift short -fall quantity in two branches, namely, 2384.50 quintals and 2500.00 quintals under the two release orders from the Doharia and Barasat Depot of the defendant after obtaining permission from the area Manager. The defendant did not instantly inform its area Manager of such release orders and such communication was made after five days later, i.e., on 12th March, 2009. The defendant claimed storage charges at the rate of.25 paise per bag per day from the plaintiff from 9th March, 2009 till 15th March, 2009 as a pre -condition for release of the balance material. The plaintiff paid the aforesaid storage charges under protest on 13th March, 2009. Between 13th March, 2009 and 14th March, 2009 the plaintiff was allowed to lift 702.29 and 497.65 quintals of wheat respectively from the Doharia Depot of the defendant. On 15th March, 2009, the plaintiff deployed 30 trucks for the purpose of lifting the balance 3684.56 quintals of wheat from the godown of the defendant. The trucks of the plaintiff were, however, not allowed to enter the godown of the defendant as it was a holiday. The said quantities of wheat could not be lifted due to operational difficulties of the defendant on 16th March, 2009. The plaintiff requested the defendant to extend the time for lifting the balance quantity of wheat. The plaintiff, thereafter, sent numerous reminders and from time to time called upon the defendant to restore the consideration for the unlifted quantity of 3684.56 quintals of wheat and to refund the storage charges wrongfully claimed from the plaintiff. In spite of such demands the defendant has failed to refund price of 3684.56 quintals of wheat. The plaintiff under such circumstances, filed the suit praying, inter alia, for a decree for a sum of Rs. 42,33,423.00.
(3.) THE plaintiff has taken out this application for a final judgment.;