TAMIL NADU ELECTRICITY BOARD Vs. N RAJU REDDIAR

JUDGEMENT

(1.) Leave granted.

(2.) This appeal by special leave is directed against the judgment of the Division Bench of the Madras High Court dated 6-9-1995 in O. S. A. No. 112 of 1987. The plaintiffs who are the respondents in this appeal filed the suit on the original side of the High Court for recovery of a sum of Rs. 46,08,820/- together with interest at 18% per annum. It was alleged in the plaint that the defendants who are appellants in this appeal invited tenders for transportation of iron and steel materials including unloading, weighment and stocking from various stock yards of the suppliers to the destination stores during the period 1-9-1978 to 31-8-1979. In pursuance of the aforesaid advertisement the Plaintiff No. 1 submitted this tender on 12-7-1978 and along with tender submitted, a letter was also enclosed. This offer of the plaintiff was accepted and an agreement was entered into. In accordance with the agreement the plaintiff furnished a bank guarantee and deposited the necessary earnest money and commenced the work of transport of materials. It was further alleged that the plaintiffs carried the material and delivered the same at various destinations as per the direction given from time to time by the defendants. In all a total quantity of 1,73,78,821 metric tonnes of iron and steel were transported and the necessary bills were submitted in November, 1979. But the defendant instead of making the payments in accordance with the terms of the contract postponed the payment of the bills. It was averred in the plaint that the defendant agreed to pay on multi slab basis which is apparent from letter of the plaintiff attached to the tender submitted by him and that was also the trade practice. The plaintiff finally issued a notice on 28-3-1980 calling upon the defendants to settle the bills but the defendants replied on 7-5-1980 making several misleading averments. As the plaintiffs' bills were not settled, the suit was filed for recovery of the amount as already stated.

(3.) The defendants in their written statement denied the allegations made in the plaint. The specific stand taken in the written statements was that the plaintiffs are not entitled to claim multi slab basis and on the other hand they are entitled to single slab basis. It was stated that the multi slab rates had never been accepted and not covered by the agreement executed by the parties. It was also stated that on the basis of instructions from headquarters the Superintending Engineers have been passing the bills on single slab basis on the plaintiffs remained silent during the entire tenure of the contract period but raised this issue after the contract period was over. The defendant further averred that the plaintiffs have not delivered the materials correctly at some destinations. In reply to the aforesaid written statement the plaintiffs also filed a reply statement denying the allegations made in the written statement and reiterated the stand taken in the plaint. On these pleadings the learned single Judge framed three issues and on Issue No. 1 came to hold that the rates mentioned in Exhibit D-8 will have to be calculated on single slab basis and not on multi slab basis as contended by the plaintiffs. So far as the letter Exhibit P-1 dated 11-7-1978 which was enclosed to the tender from Exhibit P-2, the learned single Judge negatived the contention of the defendant and came to hold that the words written in ink in Exhibit P-1 were there at the time of submission of the tender. The words were "I have quoted my rates for each slab and add for every extra one and part thereof". The plaintiffs' case is essentially based on the aforesaid expression in the letter which was enclosed to the tender and which according to the plaintiffs was ultimately accepted. The learned single Judge, however, construed the expression "for each slab" mentioned in Exhibit D-6 and came to hold that the tender was not on multi slab basis. The learned Judge also held that merely because the tender conditions are not clear one cannot accept the contention of the plaintiff that the rates agreed upon is on multi slab basis. Further taking into account the terms and conditions of Exhibit D-1 the learned Judge came to hold that the irresistible conclusion is that what was intended is only a single slab basis. The learned Judge also examined several other tenders and then negatived the plaintiffs contention that the agreement was on multi slab basis. On an analysis of the pattern of the working of the rates in several tenders the leaned Judge rejected the plaintiffs' contention that the contract was on multi slab basis. Though the plaintiffs relied upon several recommendations of the Superintending Engineer but the learned Judge on consideration of the same came to hold that those recommendations will have to be rejected. It was also held that the terms and conditions of a contract have to be decided on its own and production of other contracts will not be of any help in deciding what are the terms of the present contract. He also held that defendants failed to produce any other contemporaneous contract which has been granted on multi slab basis. On issue No. 2 the learned single Judge on consideration of entire evidence on record came to hold that the shortages alleged by the defendants had not been established. On Issue No. 3 the learned single Judge came to hold that there is considerable delay in the matter of payment of bills though such delay had occasioned on account of difference in the interpretation of the terms of the contract and the delay is on the part of the defendants on settling the bills. With these conclusion and on calculating on single slab basis the learned single Judge passed a decree for Rs. 9,31,157. 63 with interest at 12% per annum from 1-1-1980 till the date of decree and thereafter at 6% per annum. The suit was thus decreed in part. The plaintiffs challenged the decree by filing an appeal and the defendants also filed a cross-objection challenging that part of the decree in favour of the plaintiffs. The Division Bench of the High Court relying upon the hand written portion of Exhibit P-1 and the conduct of the Superintending Engineer in passing the plaintiffs' bills on multi slab basis as well as relying upon some other contracts came to hold that the plaintiffs are entitled to freight charges on multi slab basis. The Division Bench also held that the interpretation of the learned single Judge of the expression 'for each slab' is wholly erroneous and it could only mean that the rate was on multi slab basis. With these conclusion the Division Bench allowed the plaintiffs appeal and dismissed the defendants' corss-objection and hence the present appeal by special leave.