D.G.R.PATNAIK, J. - (1.) THIS appeal by the appellant / plaintiff is directed against the judgment dated 6.10.1994 and its corresponding decree dated 16.11.1994 passed by the Sub - Ordinate Judge, 1 st, Bokaro at Chas in Money Suit No. 61 of 1985, whereby the plaintiffs suit was dismissed with cost.
(2.) PLAINTIFF namely the Steel Authority of India Ltd. had filed the suit against the defendant/respondent for recovery of money valued at Rs/ 13,76,278.80 together with interest pendente -lite and future till realization of the money. The case of the plaintiff is that in course of its business of manufacturing of steel, the rejected rolls, tender / skin pass rolls, Mill rolls, forged alloy steel, etc. were required to be cleared from the plant floors and the same were required to be disposed of from the various locations within the plaintiffs plant. For the purposes of clearance of the rejected materials, the plaintiff had invited sealed tender vide tender notice No. STCLA; DISP; 090; 81 -82; 03 from different contractors for one year @ 30 MT per month. The defendant had submitted its tender in response to the aforementioned notice by its letter dated 17.7.1981 which was accepted by the plaintiff by letter dated 26 / 28.10.1981 for the sale of the said materials subject to the terms and conditions mentioned in the aforementioned tender notice. The defendant by its letter dated 3.11,1981 acknowledged the offer of the plaintiff and submitted the requisite security deposit of Rs. 25,000/ - by a demand draft, The contract was to be strictly governed by Clause -12 (A) staled in the terms and conditions of the contract, Under the contract, defendant was required to pay value of the materials for one month @30 MT per month in advance and lift the same and so on for one year. The plaintiffs contention is that despite clear instruction, the defendant violated the terms and conditions of the contract and in most perfunctory manner, made payment of the value of the materials and lifted the same. The plaintiff explains that out of the total contracted quantity of 360 MT of materials to be lifted @ 30 MT per month, the defendant made payment and lifted only 41.5 MT of the materials during the period January 1982 to April 1982. The defendant was asked by the plaintiff through several letters to perform his obligation under the contract strictly according to the terms and conditions of the contract and to deposit the cost of the materials and lift the same as per the contract. The plaintiff by its several letters, had also issued warning that if the defendant fails to perform its part of the contract according to the terms and conditions of the contract, its security deposit would be forfeited and the materials will be resold to other party. In response to the plaintiffs last letter in this context dated 25.2.1982, the defendant replied by its letter dated 3.5.1982 expressing the reasons for the delay in depositing the cost of the materials and attributing the same to the labour problems. Even thereafter, the plaintiff had called upon the defendant to lift the stock of materials lying in its premises after depositing the cost thereof and in response, by its letter dated 15,4.1982, the defendant had assured to deposit the cost of materials by 18 th April 1982 and latest by 30 th April 1982. The plaintiff allowed time to the defendant to deposit the cost of the accumulated quantity of 150 MT of materials by 1 st June 1982 and to lift the materials within the stipulated time, failing which the security deposit of the defendant would be forfeited and materials will be resold to any other party at the cost of the defendant. By way of reminder when the defendant had failed to deposit the money by 1 st June 1982, the plaintiff sent a telegram on 15.7.1982 to the defendant reiterating its demand to the defendant to deposit the cost of 150 MT of materials by 24.7.1982. This with followed by another Idler dated 16,7.14X2 continuing the same contents together with the warning. Yet again, the defendant failed to deposit the money within the extended time. Ultimately, by its letter dated 11.10.1982, the plaintiff informed the defendant that since the defendant had failed to deposit the cost of the materials in spite of several opportunities given to them, the plaintiff has commenced its action for resale of the materials at the cost of the defendant and had also intimated that the request of the defendant for extension of the period of contract for one more year cannot be accepted. The plaintiff has further claimed that since the defendant has committed breach of contract, the plaintiff was entitled to forfeit the defendants security deposit of Rs. 65,000/ - and also to resell the materials and recover the loss sustained on such resale from the defendant. The plaintiff has claimed that in order to remove the blockage of space within the floor of the plant, plaintiff issued a fresh tender notice of resale of the materials and alter scrutinizing the tenders received in response to the tender notice, had awarded the contract for reselling the materials to M/s Agarwal Iron and Steel Industries at the rate of Rs. 6,388.85 per MT on the basis of the offer made by the said firm. Difference in total cost of the materials after re - tendering was assessed at Rs. 13,76,278.80, details of which is mentioned in Schedule to the plaint. The plaintiff thereafter issued a demand notice to the defendant by its letter dated 11.9.1984 demanding the amount of Rs. 13,76,278.80 from the defendant within 15 days from the date of receipt of the notice. In reply to the notice, the defendant by its letter dated 25.9.1984 levelled false allegation against the plaintiff making a counter -claim that it was the defendant who had suffered loss to the extent of Rs. 18,95,166,00 due to less delivery of the materials to them against the previous contract dated 7.4.1979, although the previous contract had expired as back as on 6.4.1980. Plaintiff has therefore, filed the suit for a decree for the aforesaid amount against the defendant. The defendant/respondent had contested the suit by filing its written statement and contending that the suit is not maintainable in its present form or for the relief(s) claimed and the suit is barred by waiver, estoppel and acquiescence. The defendant has pleaded that the plaintiff has not represented the facts of the case correctly and has in fact, tried to mislead the court. The case of the defendant, on the other hand, is that for the sale of the rejected rolls, the plaintiff had entered into a contract vide contract No. STO/A/DISP/090/78 -79/17 dated 7.4.1979. This was the first contract. Under the terms and conditions of the first contract, the defendant had performed its part of the contract by depositing security money as also the cost of the materials, to be lifted every month, in advance, but after a few months, the plaintiff failed and neglected to deliver the materials to the defendant in terms of the contract on the pica that they had no stock. The plaintiff had thus, committed breach of the contract, which was a deliberate act on the part of the plaintiff, and the plea of no stock was only a false plea. As a matter of fact, on account of rise in the price of materials, the plaintiff was reluctant to perform its part of the contract and in order to make wrongful gain for itself, refused to extend the period of contract with the defendant. The officers of the plaintiff company had given verbal assurance to the defendant to compensate in future for the financial loss and damages and thereafter, invited tender for a fresh contract and in response to which, the defendant had submitted its tender offering to pay higher amount of price for the materials. Defendants tender was accepted and thereafter, defendant had commenced to perform its obligation under the contract. There was some default in the timely deposit of the cost of the materials. The defendant had pleaded with the plaintiff to extend the period of the second contract so as to enable it to lift the materials for which it had offered enhanced rate and also reminding the plaintiff that the defendant had suffered loss on account of the fault of the plaintiff to perform its obligation under the previous contract The plaintiff has however refused to extend the period of contract or to allow any accommodation to the defendant. Further case of the defendant is that it was the plaintiff who had committed the breach of contract by inviting fresh tender for the resale of the materials even though the period of the contract with the defendant had not expired and had illegally terminated the contract even before the expiry of the contractual period. The defendant adds that if the plaintiff was aggrieved that the defendant had committed the breach of contract, then it should have filed the case for breach of contract on the first occasion i.e. first month of the commencement of the work, but the plaintiff waived all the purported breaches of contract as it had done earlier in the first contract. The defendant adds further that even during the third contract with M/s Agarwal Iron and Steel Industries, which was undertaken by the plaintiff on account of the purported breach of the second contract between the plaintiff and the defendant, the actual lifting of the materials by the other contractor, was much less than what was contracted for. Defendant asserts that the plaintiff is not entitled even to claim the difference in price of the actual sale which is liable to be set off in respect of the defendants claim for breach of the first contract committed by the plaintiff, Even otherwise, the plaintiff is not entitled for compensation for goods which were not sold and delivered, as admittedly, the third contractor had also not lifted the entire materials.
(3.) ON the basis of the rival pleadings, the learned trial court had framed following issues. 1. Is the suit as framed maintainable? 2. Is there any cause of action for the present suit? 3. Is the suit barred by principle of waiver, estoppel, and acquiescence? 4. Is the plaintiff entitled to get a decree of Rs. 13,76,278.80 as per details shown in the schedule of the plaint? 5. Is the plaintiff entitled to get the decree for interest pendentelite and future? 6. Is the plaintiff entitled to get any relief or reliefs as claimed for?;