GURUSHARAN SHARMA, J. - (1.) THE plaintiff is appellant. The suit for realization of Rs. 67,990.00 from the defendant No. 1, for price of coal -tar lifted by the defendant No. 2, as detailed in Schedule A to the plaint, plus Rs. 1,98,724.50 paise from the defendant No. 2, being the amount of loss suffered as detailed in Schedule B to the plaint or in alternative for realization of total amount of Rs. 2,66,714.50 paise from the defendant No. 2, in case it was found that the defendant No. 1 was not liable to pay Rs. 67,990.00 was dismissed, holding that the plaintiff was not entitled to claim the aforesaid sum from either of the defendants.
(2.) ACCORDING to the contract in question, the defendant No. 2, a registered partnership firm, during the period commencing from 1.1.1967 to 31.12.1967 was to lift 17.40 tones of coal -tar from the plaintiffs Coke Oven Plant at Giridih @ Rs. 390.75 paise per tone. As per Clause 10 of the General Conditions of tender contract, the defendant No. 2 was asked to deposit Rs. 67,990.00 towards security in cash. An option was offered to deposit Rs. 57,990.00 after adjustment of earnest money of Rs. 10,000.00 held by the plaintiff, under the contract. The contractor had also to deposit Rs. 56648.75 paise being the value of 145 tones of coal -tar. It was allowed to be lifted on production of cash receipt. The defendant No. 2 had accepted the contract and offered to furnish bank guarantee, in lieu of cash deposit of Rs. 67,990.00 and the plaintiff agreed to the said offer.
(3.) THE plaintiff claimed to have offered bank guarantee of Rs. 70,000.00. Up to May, 1967, the defendant No. 2 lifted total quantity of 318.025 tones of coal -tar only and inspite of repeated offers the defendant No. 2 failed to take delivery of the balance 1421.975 tones of coal -tar as per the contract.;