STATE OF BIHAR Vs. P K JAIN

JUDGEMENT

(1.) This is an appeal by the State of Bihar (Defendant) from an original judgment and decree dated 13 September, 1965, of the Additional Subordinate Judge II, Gaya. The question in this appeal is whether the respondent-contractor who was plaintiff in the money suit is entitled to certain damages as claimed by him and if so, how the damages are to be assessed. The claim for damage is based on breach of two contracts, Exts. B and B/i both dated 23rd March, 1956, executed by the Executive Engineer, P. W. D. East Division, Gaya acting on behalf of the State of Bihar. The respondent had agreed to supply about 31 lacs of bricks in groups A and B for the Panchanpur Daudnagar Road with link to Tekari. 1762992 bricks were to be supplied in group A to be delivered at 0 to 8 miles under the agreement (Ext. B/l) and 1330560 bricks were to be supplied in group B to be delivered at 9 to 16 miles under the agreement (Ext. B). The supply was to start from 15th February, 1957, and was to be completed by 30th June, 1957. The plaintiff supplied 582000 bricks in group A and 785000 bricks in group B by 15th July, 1957, and payment was made for the same as 1st and 2nd on A/C bills. The grievance of the plaintiff is that the Sectional Officer, P. W. D. Headquarters Subdivision 3 Gaya by his memo No. 229 dated 15th May, 1957, asked him to suspend the supplies until further notice in miles 0 to 12 and the link portion on the ground that the actual requirement would be intimated later to the firm after consulting the Sub-divisional Officer, P. W. D. Subsequently by memo No, 327 of 23rd June, 1957, the plaintiff was informed that the requirement was less. The Sectional Officer intimated to the firm to supply 293076 bricks in group A and 146520 bricks in group B as against the contracted quantities of 1762992 and 1330560 bricks in groups A and B respectively, that by memo No. 302 dated 15th July,1957, the Sub-divisional Officer, P. W. D, No. 3 informed the plaintiff that separata tenders had been called for supply of bricks in mile 1 and he restricted him from supplying any brick in mile 1. He further restricted him from supplying any bricks in other miles also. These two restrictions are said to constitute the breach of contract and causing loss to the plaintiff. It alleged that he sold the remaining bricks numbering 1180992 in group A and 545560 in group B at a very cheap price, namely, at Rs. 25/- per thousand as a result of which the plaintiff suffered a loss of Rs. 16/- per thousand. The total amount of loss thus being Rs. 67,697/-. The cause of action is said to have arisen on 30th December, 1958, when the plaintiff had to dose his kiln.

(2.) Shorn of verbiage the case of defendant 1 the State of Bihar who appeared in the suit and filed written statement is that as per condition 5 of the agreement the department was entitled to revise the agreement and the plaintiff could supply only such quantity of bricks as revised, that a separate tender was called for the supply of bricks because a separate estimate was prepared for the town portion. It denied to have committed any breach of contract. It was further pleaded that the suit was barred by limitation.

(3.) The Additional Subordinate Judge, Gaya has found, (i) that condition 5 of the agreement being unilateral and arbitrary is void, (ii) that the plaintiff was entitled to a decree for the difference of price as allgeed in the schedule of the claim calculating the sale price of the bricks at Rs. 25/- per thousand plus the transportation charges of 4 lacs of bricks at the rate mentioned in the schedule, (iii) that the suit was governed by Article 120 of the Limitation Act and was not barred by limitation, (iv) that the plaintiff was entitled to a decree for the establishment expenses at the two places in Panchanpur and Chandauit (Rs. 5,040+5,040), earnest money Rs. 1,800, to the refund of security money Rs. 1,069 and the rent of the land Rs. 2,000+2,000 and also to the expenses for the carriage of 4 lacs of bricks of group B from Panchanpur kiln to Gaya Rs. 6,400. He disallowed interest. On these findings he decreed the suit in part with costs.