D.G.R.PATNAIK, J. - (1.) THIS appeal by the plaintiff / appellant, is directed against the judgment dated 30.11.1996 and its corresponding decree dated 6.12.1996 passed in Money Suit No. 22 of 1989 by the Sub -Judge - III, Ranchi, whereby the suit of the plaintiff was decreed in part in favour of the plaintiff and another part was decreed in favour of the defendant. A counter appeal under Order 41 Rule 22 CPC has also been filed by the defendant/appellant against the same impugned judgment of the court below.
(2.) THE case of the plaintiff is that the plaintiff had invited tender in the year 19X5 vide its tender notice No. S & C 13/1/85 dated 2.7.1985 for appointment of contractors for handling, transporting, loading and unloading of food grains and allied materials, etc from the railway head, Tatisilwai to the depot of the plaintiff at Tatisilwai. The contract was for a period of two years from the date of joining and the terms and conditions of the contract were appended to the tender notice, according to which, the contractor was to perform the work of loading and unloading of the food grains from the railway wagons, trucks, etc and stocking the same in bags, weighment handling and transporting the goods from the railway head to the Corporation's go -downs. Such work was to be performed by the contractor by engaging and appointing labours and workers on his own and the corporation was in no way responsible for the same. The terms and conditions stipulated in the tender notice required the contractor to deposit earnest security money and also laid down the mode of execution of the contract job. In response to the tender notice, several tenders were received. The tender submitted by the defendant was accepted and formal agreement was entered into by and between the plaintiff Corporation and the defendant. The defendant was required to submit Labour Registration Certificate and Income Tax Clearing Certificate in addition to the deposit of security money as per the terms of the contract. By his letter dated 6.9.1985 the defendant had submitted his joining report and commenced execution of the work. One Shiv Charan Sharma was appointed as supervisor to look after the execution of the contract work on behalf of the defendant in the absence of the defendant. As required, defendant submitted Labour Licence Certificate and Income Tax Clearance Certificate in (he month of November 1986. After working for few months, the defendant began avoiding performance of the contract from March 1986 on the ground of labour problem. In spite of letter issued by the plaintiff dated 25.3.1 1986 calling upon the defendant to take all suitable steps for the safety of the food grains and its safe handling and transportation in terms of the contract, the defendant by his letter dated 30.3.1986 expressed his inability to execute the contract on the ground of labour problem. Plaintiff claims that there was express stipulation with regard to the engagement of labours and workers mentioned in tender notice itself and in the formal agreement executed by the defendant whereby the responsibility for engaging labours and workers for the execution of contract job was entirely on the defendant. Reminding the defendant of such responsibility, and refusing to own responsibility for employment of workers at its own level, the plaintiff called upon the defendant by written correspondence to resume the work without delay and to avoid loss on account of demurrage and wharfage. The defendant failed to execute the work in terms of the contract resulting in substantial loss to the plaintiff and finding no other alternative, the plaintiff approached other contractor for execution of the work for unexpired period of contract at the risk and cost of the defendant. The plaintiff thereafter got the work, left uncompleted by the defendant, done through one Jai Prakash Agrawal, a contractor. The plaintiff adds that besides suffering loss on account of demurrage and wharfage, the plaintiff had to incur expenditure for completion of the work through the contractor. By its letter dated 17/18.1.1987 the plaintiff called upon the defendant to pay the loss and expenses which the plaintiff had sustained till then and by another letter dated 10.2.1989 plaintiff called upon the defendant to pay a sum of Rs. 20.09,4 16.14 towards excess payment to the labour, demurrage and wharfage charges and payment for differential loss, for getting the work executed through another contractor. The demand having not been met by the defendant, the plaintiff found cause of action to file the suit and the suit was accordingly filed. The defendant contested the suit by filing written statement, denying and disputing the entire claim of the plaintiff on the ground that the plaintiff has no cause of action and the suit is barred by principles of waiver, estoppel and acquiescence and is not maintainable. The defendant has acknowledged the fact that the plaintiff had issued tender notice, but denies its claim that the terms and conditions of the tender was appended to the tender notice. The defendant's case is that his tender was accepted by the plaintiff, where -after he was called upon to submit his joining report for executing his contract job and in response, he had submitted his joining report to the depot include of the plaintiff at Ranchi on 16.9.1985, although no formal agreement was ever executed by and between the plaintiff and the defendant. The defendant has claimed that the contract did not stipulate for the engagement of labour and workers at the level of the defendant and neither can any such responsibility be imposed on the defendant in contravention of the provisions of Contract Labour (Regulation and Abolition) Act, 1970. The defendant asserts emphatically that there was no contract imposing any obligation upon him for engaging his own labour and workers. As a matter of fact, the entire labour force operating at the Tatisilwai railway head an Tatisilwai depot of the plaintiff, are members of a registered Rule union called Food Corporation of India Workers Union, Ranchi, and recognized by the plaintiff and the plaintiff is the principal employer of the labours and workers under the union. The defendant has further pleaded that at the backing and instance of the plaintiff corporation, these workers and labours had refused to allow the defendant to conduct the work as a result of which, it became utterly impracticable for the defendant to execute work and he had expressed his difficulty to the plaintiff vide his letter dated 30.3.1986. The defendant has claimed that it is the plaintiff who had caused frustration of the contract and, therefore, the plaintiff is not entitled, to any differential loss from the defendant particularly in the absence of any contract to that effect. Defendant has also disputed the plaintiffs demand as made by them in letter dated 17/19.1.1987, as being totally false, unfounded and imaginary besides being over exaggerated, inflated and untenable which the defendant by his reply letter dated 20.4.1987, had totally denied the claim of the plaintiff. The defendant has on the contrary, claimed refund of the sum of Rs. 50,000.00 deposited by him by way of security money with the plaintiff and further sum of Rs. 1,25,000.00 for the works executed by him, which amount have been withheld by the plaintiff. The defendant has therefore made a counter claim of the aforesaid amount against the plaintiff.
(3.) ON the basis of the rival pleadings, learned trial court had framed following issues. i. Whether the suit as framed and filed is maintainable? ii. Whether the plaintiff has valid cause of action for the suit? iii. Whether the suit is barred by the law of limitation as well as on the principles of waiver, acquiescence and estoppel? iv. Whether there was any negligence or lapses on the part of the defendant in performing his part of the contract? v. Whether the plaintiff is entitled to a decree for Rs. 20,09,416.14 with interest? vi. Whether the defendant is entitled to a decree for counter claim to the tune of Rs. 1,75,000.00 ? vii. What other relief or reliefs, if any, the plaintiff is entitled to?;