ASSAM STATE ELECTRICITY BOARD Vs. RAJ ASSOCIATES

JUDGEMENT

(1.) This regular first appeal is by the defendant against the judgment and decree passed by the learned Civil Judge No. 2, Kamrup in Money Suit No. 137/2008.

(2.) The facts leading to the present appeal was that the respondent, as plaintiff, filed a suit (Money Suit No.137/2008) for recovery of Rs. 36 lakhs as compensation with interest against the appellant/defendant. The case of the plaintiff was that the defendant floated a tender inviting global bids for disposal of seven nos. of mobile gas turbine (for short MGT), each having capacity of 2.70 megawatt, installed at Geleki and Kothalguri. The plaintiff participated in the tender process quoting the price at Rs. 1.8 crores inclusive of taxes and eventually the plaintiff was awarded with the work. Later on, the plaintiff requested the defendant No. 2 for splitting up the lifting work in two phases and the plaintiff also offered to make 50 % of the payment for the first phase, which was agreed by the defendant. The plaintiff also offered to furnish bank guarantee for the remaining 50% value of the work. Accordingly, the plaintiff paid Rs.93,60,000/-, Rs. 90 lakhs being 50% of the purchase value and Rs. 3,60,000/- as VAT (@ 4% of the price). Upon such payment, the defendant issued the lifting order on 15-06-2006 in respect of three nos. of MGT sets at Geleki and spare parts stored at Kothalguri and Maibala stores. In the said lifting order, it was stipulated that the plaintiff should lift the goods within next 90 days. While issuing the lifting order, the defendant No. 2 also requested the Deputy Commissioner, Dibrugarh and Sivasagar to provide necessary security at the time of lifting the materials. While the plaintiff visited the Kothalguri and Geleki sites, it was found that the materials were lying without any proper security. The plaintiff brought the matter to the notice of the defendants and requested to make arrangement for security of the goods, which were yet to be lifted. On request of the plaintiff, defendant No. 2 wrote a letter to the defendant No. 4 on 26-07-2006, asking him to arrange for security measures. However, on the failure of the defendants to make necessary arrangement for security, incident of theft had taken place, and large numbers of valuable parts from the MGT sets were stolen away, for which, an FIR was also lodged by the defendant on 06-10-2006. When the plaintiff noticed, that a large number of valuable articles were stolen for want of proper security, they requested the defendants to make a joint inspection of the materials for assessment of the value of the goods, which were stolen. On 26-05-2007 a joint inspection was carried out by the representatives of the plaintiff and the defendants. During such inspection, it was revealed, that several valuable articles like copper cables, copper bus-bear etc were stolen and the defendants admitted the value of the stolen goods to be Rs. 16 lakhs. The plaintiff offered to pay Rs. 73 lakhs for the 2nd phase of the work by adjusting Rs. 16 lakhs towards compensation for the loss, due to theft of valuable parts of the MGT sets, as the defendants had already encashed the bank guarantee of Rs. 1 lakhs against earnest money deposit (EMD). However, the defendants insisted for payment of the entire value of 93, 60,000/- and assured the plaintiff, that the amount of compensation should be settled separately. Ultimately the plaintiff made the full payment for the 2nd phase of the work, upon assurance from the defendants, that the issue of compensation would be settled separately. It is further stated in the plaint that during lifting of the 2nd phase of work, the plaintiff noticed, that further incident of theft had taken place and the value of the stolen materials was more than 20 lakhs. Therefore, the plaintiff made a claim of Rs. 36 lakhs from the defendants as compensation for theft of various valuable parts from the MGT sets before they were lifted by the plaintiff.

(3.) The defendants in the written statement stated, that the Assam State Electricity Board entered into contract for sale of MGT sets on "as is, where is and no complain basis", and as such, there was no question of compensation, inasmuch as, there was no such contract between the parties for paying compensation. It was stated in the written statement that the plaintiff firm submitted the claim for Rs. 16 lakhs unilaterally without any consultation with the defendants and also challenged the correctness of the assessment of Rs. 16 lakhs. It was also stated in the written statement that the plaintiffs were requested to arrange their own security personnel to prevent any theft or pilferage, but the plaintiff failed to take any steps for providing any security arrangement from their end, though, the defendants engaged their security personnel in the respective sites of the MGT. As regards the claim of Rs. 20 lakhs the defendants stated that no joint inspection was made regarding the allegation of theft and also denied the incident of further theft after 26-05-2007. On the basis of the above pleadings, learned trial court framed the following issues :