WESTWRN COALFIELDS LIMITED Vs. PRADEEP KUMR SONI

JUDGEMENT

(1.) THE appellant - defendant no. l has directed this appeal under Section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 23. 11. 93 passed by the Ist Additional District Judge to the Court of District Judge, Chhindwara in Civil Appeal No. 2-B/87 decreeing the suit of respondent no. 1 against it by setting aside the judgment and decree dated 14. 10. 1986 passed by the First Civil Judge, Class-1, Chhindwara in Civil Original suit No. 2-B/84 whereby such suit was dismissed.

(2.) THE facts necessary to adjudicate this appeal in short are that the plaintiff - respondent no. 1 herein filed money suit against the appellant for recovery' of Rs. 10500 in the trial court contending that he being Contractor-is doing the business of transportation of the coal for the appellant subject to acceptance of 1 is tender. In response of the NIT floated by the appellant the respondent no. 1 submitted his tender for transportation of the coal from the directed mines to the destination. He was directed to deposit Rs. 34,000 as earnest money. In this regard rs. 34,000 was permanently deposited with the appellant on dated 5. 2. 1982, out of which the earnest money was deposited. As the respondent no. 1 could not fulfill the vested interest of the official of the appellant, then such official with the connivance of some other Contractor even after accepting the aforesaid tender on dated 22,3. 1982 did not issue the work order to the respondent no. 1. While the respondent no. 1 by spending the huge sum engaged the trucks for the aforesaid work. In the absence of the work order he suffered the loss of Rs, 50,000, on which a notice dated 22. 4. 1982 was given to the appellant by him. The same was replied, vide dated 4. 5. 1982 by the appellant stating that the appellant is ready to issue the work order if the respondent no. I does not proceed for any proceeding in continuation of the said notice. After receiving such reply when the respondent no. 1 contacted the official of the appellant for issuing the work order then he was directed to deposit again Rs. 10,000 as earnest money. The same was deposited by him with the bank - respondent no. 2 and such receipt dated 21. 5. 1985 was submitted in the office of the appellant. Inspite of that no work order was issued to the respondent no.-1, on which the respondent no. 1 again gave a notice dated 4. 10. 1982 to the appellant and respondent no. 2 to refund the aforesaid earnest money of Rs. 10,000 but the same was not refunded on which the impugned suit for recovery of the money was filed by him.

(3.) IN the written statement of the appellant, it is stated that in response of the nit dated 4. 1. 1982- carrying out the transportation of coal from Dighinia open cost mines to the Railway Side Parasia, the plaintiff - respondent no. 1 submitted his tender on dated 6.-2. 1982 alongwith the receipt dated 5. 2. 1982 depositing Rs. 34,000 as earnest money in compliance of the terms of the tender form. On opening the aforesaid tender, vide dated 8. 2. 1982 due to difference of the rates such work could not be alloted to the plaintiff-respondent no. 1. Subsequent to this the earnest money of Rs. 34,000 was never claimed by the plaintiff, hence the same was not refunded. Thereafter in response of the another NIT dated 20. 2. 1982 for transportation of the coal from Sethia open caste mines to the directed destination the plaintiff submitted his tender on dated 22. 3. 1982 with a prayer to deposit its earnest money Rs. 10,000/- from the aforesaid Rs. 34,000/- deposited with respect of the earnest money of said earlier tender. Accepting, such prayer the tender of the plaintiff was taken in bid and on opening the same it was accepted as per directed terms and conditions. Thereafter on dated 19. 4. 1982 the work order was issued by the appellant to respondent no. 1. In compliance of the same when the work was not begun, then again by prescribing the time limit to begin the work a modified work order dated 24. 4. 1982 was also issued to respondent no. 1. Inspite it the work was not started with in the prescribed period. It is also stated that contrary to the terms of subsequent tender, the entire sum of Rs. 34,000/- of the earnest money of said earlier tender, out of which Rs. 10,000 was adjusted in the second tender on 22 March 1982, was withdrawn in toto by the respondent no 1. In order to rectify such mistake the respondent no. I again deposited Rs. 10,000/- as earnest money, vide dated 21. 5. 1982 and its bank receipt was submitted in the office of the appellant alongwith a covering letter stating that in compliance of the terms he deposited Rs. 10,000/- which has been withdrawn by him and also shown his incapacity to perform the directed work. Accordingly the respondent no. 1 plaintiff has neither fulfilled the terms of the tender nor started the work of the contract, hence in view of such violation of the terms his aforesaid earnest money has been forfeited. In such premises prayer for dismissal, of the suit is made.