STEEL AUTHORITY OF INDIA LTD Vs. ASHOK INDUSTRIES

JUDGEMENT

(1.) The judgment and decree dated 5.6.92 and the order dated 17.6.92 amending the earlier decree of 5.6.92 passed by the learned Assistant District Judge, Tinsukia in Money SuitNo. 120 of 1986 is the subject matter under challenge in this First Appeal No. 57 of 1992 preferred by thE defendant-appellant, namely, Steel Authority of India Ltd. as against the plaintiff- respondent, namely, M/s. Ashok Industries.

(2.) The facts of the case in a short compass are as follows : The plaintiff, M/s. Ashok Industries instituted a Money Suit being M.S. No. 16 of 1981 in the Court of the learned Assistant District Judge, Dibrugarh which was later on transferred to the file of the Assistant District Judge, Tinsukia bearing Money Suit No. 122 of 1988 as against the defendant, appellant herein, namely Steel Authority of India Ltd. for a Money Decree to the tune of Rs.9,48,950/- by contending inter alia, that since about April, 1976 and till 30th June, 1979, the plaintiff being appointed and engaged by the defendant duly acted for and rendered services to the defendant as the defendant's handling and storage contractor at Makum in the State of Assam for handling and storing of all iron and steel materials despatched from the defendant's plants at Rourkela,'Bhilai and Durgapur as also from Bokaro Steel Limited and India Iron and Steel Company Limited. On certain terms and conditions as stated in paragraph 3 of the plaint as agreed to by both the parties through a written agreement dated 28.4.76 lying with the defendant. According to the plaintiff, the plaintiff would be entitled to be reimbursed by the defendant in the event of the plaintiff's carrying materials from any place other than the nearest railway head and/or railway siding at Makum on account of costs of such carriage and the plaintiff also would be entitled to receive from the defendant and the defendant would be liable to pay all costs of stock verification to be carried out at the plaintiff's yard and during the period between 16.5.79 and 1.7.1979, the plaintiff duly submitted several bills to the defendant on account of such handling and storage charges, the aggregate value whereof is Rs. 15,823.70, and like-wise during the period between 13.6.79 and 1.8.79 the plaintiff further submitted to the defendant several bills of an aggregate value of Rs.6,281.80 on account of costs of carriage of materials from Tinsukia to Makum and the same were duly accepted by the defendant without raising any objection thereto. It is also the case of the plaintiff that a further aggregate sum of Rs.49,211.05 is to be paid by the defendant in respect of stock verification as the connected bills were duly accepted by the defendant, but the defendant wrongfully and illegally and without being entitled to deduct, a sum of Rs, 17,272.08 on account of alleged shortage of Pig Iron and further a sum of Rs.35,168.47 on account of shortage of other steel materials from the various bills submitted by the plaintiff had been deducted. As per terms of the agreement between the parties, the plaintiff duly furnished security deposit with the defendant, to the tune of Rs. 2 lakhs in or about May, 1976 and by reason of expiry and/or termination of the contract on and from 1.7.1979, the plaintiff also became entitled to and the defendant became liable to refund the said security deposit of Rs. 2 lakhs together with interest thereof at the rate of 18% per annum from the date of furnishing such security deposit till full realisation thereof. According to the plaintiff, when the question of extension of validity of the consignment Agency Agreement was raised, under the plaintiff's letter dated 28.11.78, expressing the plaintiff's consent for extension of validity of their Consignment Agency agreement for the period from 1.1.1979 for upto one year, but not less than six months the plaintiff wrote letter by expressing and rendering the following words to the defendant :

(3.) The case of the plaintiff was contested by the defendant by contending inter alia, that the plaintiff's suit is not maintainable and the same is barred by limitation ad the claim of the plaintiff made in the plaint is vague, some of it are fictitious and as such the plaintiff is not entitled for any relief. According to the defendant, there is no such clause as mentioned in paragraph 4 of the plaint and no claim can be made on this account ; and the accounts were not running, continuous and current account and it is not known what bills were submitted without specification etc. and as such the plaintiff is not entitled to any amount on account of costs and carriage of materials from Tinsukia to Makum as there was no such clause in the agreement for such entitlement as alleged by the plaintiff. It is also the case of the defendant that if those bills as claimed by the plaintiff with regard to the stock verification, the plaintiff is not entitled to any amount on this account inasmuch as there is no provision for making payment of stock verification in the agreement dated 28.4.1976. There was actual shortage of steel materials caused by the plaintiff who violated the terms and conditions by not submitting the Short Certificate to be issued by the Railway Authority whenever and wherever necessary as per related clause of the agreement and as such the plaintiff has no right to demand for refund of the said security deposit. It was further alleged in the written statement that the statement made in paragraph 15(a) of the plaint is not correct and the defendant referred to clause 3.7 and further, the defendant completely denied the statements made in paragraph 15(b) of the plaint by stating that in the deed of agreement nowhere mentioned about any interest and the interest Act or the Sales of Goods Act do not apply at all. According to the defendant, as per clause 3.7 of the agreement, the Company does not give any guarantee or assurance of handling and storage of any minimum quantity to the contractor, but the plaintiff has made a wrong interpretation of the defendant's letter of 4.1.79. In the said letter it was specifically written that the validity of the agreement for further period of six months from 1.1.79 (to 30.6.79 was extended on the existing terms and conditions and the rates and the words "validity of agreement' refers to the "Agreement" in between the parties dated 28.4.76 and the validity of the said agreement was extended thrice and as such the plaintiff cannotclaim that 9000 M/T at the rate of 1500 M.T. psr month ought to have been despatched by the defendant and that the plaintiff is not entitled any handling commission for 9000 M/ T at any rate. Making all these statements in the wnitten statement, the defendant made a prayen for dismissal of the suit with costs and award compensatory cost of Rs.3,000/-.