Bijayesh Mukherji, J. - (1.) This judgment governs two appeals numbered 110 and 111 of 1964.
(2.) Each is by the plaintiff, Ramji Dayawahla & Sons Private Ltd., a company incorporated under the Indian Companies Act, hereinafter referred mostly as "the appellant". Appeal No. 110 is from an order dated January 10, 1964, of A.N. Ray, J., staying the appellant's suit, being suit No. 1359 of 1963, and all proceedings thereunder. Appeal No. 111 is from an order dated February 6, 1964, of the same learned judge dismissing the appellant's application in that suit for injunction and vacating too the interim one granted on August 2, 1963--the very day the said application was filed and moved.
(3.) Suit No. 1359 of 1963 is a suit raised by the appellant on August 1, 1963, seeking to recover Rs. 4,25,343.00 from the sole defendant, (now the respondent before us and hereinafter referred to as "the respondent"), Invest Import, a company incorporated in Yugoslavia, with its registered office at Belgrade and a local office at 36 Ganesh Chandra Avenue within the jurisdiction of this Court. The origin of this suit lies in an agreement dated July 10, 1961, (hereinafter referred to as "the contract"), by which the respondent had appointed the appellant as the subcontractor for the erection of two (2) complete radiation type steam-boilers for a thermal power station at Barauni in the State of Bihar, for the erection of which, again, the respondent was under a contract dated February 27, 1960, or thereabouts, with the Bihar State Electricity Board. Apparently, the parties fell out at and during the time the work was on in terms of the contract. And the result has been this suit--No. 1359 of 1963--the plaint of which can broadly be divided into the following parts, where over possible in chronological order, (which the drafter of the plaint does not heed to), and also according as the averments purport themselves to be in terms of the contract or not, in order to see how the claim laid comes to Rs. 4,25,343.00. I. In terms of the contract. A. Construction of 3,500 tons of iron and steel structures--400 tons thereof having been in excess of the quantity stipulated upon. Price thereof at the contract rate of Rs. 155 a ton comes to Rs. 62,000.00 (Rs. 155 multiplied by 400) which the respondent had agreed to pay, but which remains unpaid, in spite of a bill dated February 8, 1963, having been lodged to that end. [Paragraph 5 of the plaint.] Rs. 62,000.00. B. The respondent failed to supply tools, equipments, machinery and cranes in time, in spite of having agreed to do so. Cranes were supplied, but only in February, 1962. In terms of the contract, however, the appellant was asked to start work in September 1961. Result: the appellant had to keep its labour idle from September 1961 to February, 1962, sustaining thereby a loss of Rs. 30,000 for which a bill was submitted on February 8, 1963, but in vain. [Paragraph 7 ibid.] Rs. 30,000.00 Total Rs. 92,000.00. C. Damages again for the respondent's failure to supply gas and electrodes, in terms of the contract, resulting in the appellant's labour having remained idle for a number of days, and thus causing loss which is assessed at Rs. 23,500. A bill dated April 4, 1963, to that end submitted for payment evoked no response. [Paragraph 8 ibid.] Rs. 23,500.00. Total Rs. 1,15,500.00. It appears to be worthy of note that of the plaint's three paragraphs just analysed, the first one (paragraph 5) begins: "Pursuant to the aforesaid contract......", and the last two (paragraphs 7 and 8) begin each: "According to the aforesaid agreement......" II. Purporting to be independent agreements, not in terms of the contract. A. In or about September 1961. (Paragraph 13 of the plaint where no firm date is mentioned) For periodic damage of the materials, which were insured with the Oriental Insurance Co., in or about September 1961 the respondent directed the appellant to do the repair and agreed to pay the appellant the amount realised from the said insurance company minus the respondent's supervision charge at 20 per cent. The respondent did realise from the insurance company Rs. 1,00,000.00, but failed to pay the appellant 75 per cent, thereof: Rs. 75,000, agreed upon though, and demand notwithstanding. [Quaere: why 75 per cent. ? 20 per cent, taken away, what remains is 80 per cent., which would lift the claim to Rs. 80,000.] Rs. 75,000.00. Total Rs. 1,90,500.00. B. January 6, 1962 [3 new agreements as set out in paragraphs 10, 11 and 14 of the plaint], (i) Paragraph 10. The contract provides for transport of materials within a radius of 100 metres. But the appellant did carry materials for more than 5 times the distance. It was therefore agreed on January 6, 1962, that the respondent would pay the appellant Rs. 42,595.00. For non-payment thereof. Rs. 42,595.00. (ii) Paragraph 11. For erection of the unit concerning "the refractory job", under the contract the respondent was to supply the appellant suitable firebricks of proper size. This the respondent did not do. The appellant had therefore to cut the firebricks supplied, in order to conform them to proper size and specification. It was accordingly agreed between the parties on or about January 6, 1962, that would be "treated as extra" for which the respondent would pay the appellant Rs. 3,625. For failure to pay so, Rs. 3,625.00. Total Rs. 2,36,720.00. (iii) Paragraph 14. The contract provides for supply by the respondent of materials from Yugoslavia "duly fabricated and ready for erection on unit basis". During the continuance of the work, however, "materials came in divided portion", and from "several other countries" too. That led to extra drilling, welding, cutting etc. with a view to making the materials suitable for erection of the unit. It was therefore agreed between the parties on January 6, 1962, that that "would be treated as extra" for which Rs. 40,000 has become due to the appellant and payable by the respondent. Rs. 40,000.00. C. October 4, 1962. [2 New agreements as set out in paragraphs 6 and 9 of the plaint.] (i) Paragraph 6. In view of the urgency of the work and with a view to ensuring a speedy construction, it was agreed between the parties on or about October 4, 1962, that the respondent would pay the appellant Rs. 20 a ton more than what Was stipulated in the contract for construction of iron and steel structures. Therefore, for 3,500 tons of such structures at Rs. 20 a ton. Rs. 70,000.00. Total Rs. 3,46.720.00. (ii) Paragraph 9. For a special type of insulation work, not provided for in the contract, it was agreed between the parties on or about October 4, 1962, that that would "be treated as extra" for which the respondent would pay the appellant Rs. 40,000. For failure and neglect to pay so. Rs. 40,000.00. Total Rs. 3,85,720.00. D. A certain day earlier than February 12, 1963. [Paragraph 15 of the plaint: Twice has it been averred here-- "It was agreed between the plaintiff (appellant) and the defendant (respondent)"--but without any date. The bill for the amount as the result of the agreements as pleaded is however dated February 12, 1963. So the date of the agreements is placed as a certain day earlier than February 12, 1963.] For the materials mentioned in paragraph 14 of the plaint the respondent directed the appellant to do the requisite sheeting work, having at the same time agreed to pay the appellant "for the said work as extra @ 50/- per 100 sq. feet". Rs. 7,000 became thereby due to the appellant and payable by the respondent. More, for the painting of the boiler drums, steel structure sheets and other work, the appellant had to employ labour 100 strong. It was therefore agreed between the parties that the respondent would pay the appellant an additional cost of Rs. 37,000 (probably inclusive of the preceding sum of Rs. 7,000, because no separate claim has been laid for that). For nonpayment thereof: the agreed amount of Rs. 37,000. Rs. 37,000.00. Total Rs. 4,23,720.00. E. A certain day earlier than February 16, 1963. [Paragraph 12 of the plaint where no date of any agreement is pleaded; what is more, no agreement even with the respondent is pleaded. Be that as it may, going by the date of the bill: February 16, 1963, submitted by the appellant, the date is placed as that: certain day earlier than February 16, 1963.] For a strike staged by the appellant's labour on or about May 8, 1962, Government had agreed to reimburse the appellant of the loss suffered, but only through the respondent, who realised Rs. 1,623 on that account from the authorities and yet made no payment to the appellant. Rs. 1,623.00. Grand Total Rs. 4,25,343.00.;