- (1.) This revision petition is directed against the order dated 5th September, 1989, passed by the learned Additional District and Sessions Judge, No. 7, Jaipur City, Jaipur, in Civil Misc. Appeal No. 101 / 1989, whereby he confirmed the order of rejection of the stay-application passed by the learned Addl. Munsiff Magistrate No. 2, Jaipur City, Jaipur.
(2.) Present petitioner filed a suit against the Food Corporation of India and M/s. India Machinery and Company, and prayed therein that the contract given by the Food Corporation of India, to M/s. India Machinery Co. should not be cancelled and tenders should not be invited and if invited no contract should be given to anyone. The case of the present petitioners is that the India Machinery Co., was the main contractor and the contract was given by the Food Corporation of India, to non-petitioner No. 2. Further case of the petitioner is that the petitioner was a sub-contractor. Mr. Kasliwal, learned counsel for the petitioner produced before me during the course of arguments some documents for my perusal and tried to convince me that by implication his client was recognised as a sub-contractor. From the perusal of the documents, it seems that the Food Corporation of India, was having correspondence with the present petitioner and there may be an implicit acceptance by the Food Corporation of India, that the petitioner is a sub-contractor agent of the main contractor to whom the contract was given. It is an admitted position that the petitioner was constructing on behalf of the non-petitioner No. 2.
(3.) The court below held that there was no privity of contract between the petitioner and the non-petitioner No. 1, Food Corporation of India. It was also held that even if it is assumed that there was a privity of contract and there will be no irreparable loss to the petitioner and he can file a suit for damages. Both the courts below declined to grant injunction and being aggrieved with the order of rejection of the stay-application for the grant of injunction the petitioner has preferred his revision petition. Erroneous decision on the point of facts or a mistake of law may not give jurisdiction to this court to entertain the revision petition in exercise of the powers conferred under S.115, C.P.C. unless the question of jurisdiction is there. Mr. Kasliwal, learned counsel for the petitioner has cited before me the case of Aggarwal Chamber of Commerce v. Ganpat Rai Hira Lal, AIR 1958 SC 269. Their Lordships were dealing with the provisions of Ss.40 and 42 of the Income-tax Act. Their Lordships have further held that the agent of the respondents for that part of the business of the agency that was entrusted to it may be considered and "privity of contract rose between the principal and the substitute." The case cited by Mr. R.C. Kasliwal, does not apply in the facts and circumstances of the present case. The petitioner is not a substitute for the construction of the building for which the contract was given to the non-petitioner No. 2. Non-petitioner No. 2, entered into a contract to perform the duties and fulfil the obligation relating to the construction within a stipulated period. Notice was served to the non-petitioner No. 2, that the work has not been completed within the stipulated time as such the contract is liable to be cancelled. After serving the notice to the non-petitioner No. 2, the contract was cancelled and the directions were given for the issuance of the new tenders. There is an accountability of the main contractor and he is liable for damages as the work was not completed within the time. The development work is only suffering as the work is taken by the big contractors and in practice it is executed by the petty sub-contractors. It is expected that ordinarily the work should be done by the main contractor as there is a privity of contract between the two. Mr. Kasliwal, submits that no notice was served to the petitioner and it was obligatory on the part of the petitioner to serve the notice on his client. It is not necessary to serve a notice to an agent particularly when the notice has been served on the principal, notice has also been served to the main contractor with whom the Food Corporation of India, has entered into a contract. The sub-contractor, is coming in it through main contractor, as such he cannot claim that he should also be served with a notice.;