SAHIB RAM AND COMPANY 4 C CHHOTI TEHSIL AND DISTRICT SRIGANGANAGAR Vs. RAJASTHAN STATE AGRICULTURE MARKETING BOARD JAIPUR

JUDGEMENT

(1.) APPELLANT is a registered firm and is registered as B Grade Contractor with the respendent, the Rajas than State Agriculture Marketing Board. A suit for permanent injunction was filed by the appellant claiming the relief that the respondent be restrained from appropriating the amount from the appellant, for satisfaction of its claim for damages for alleged non-performance of the contract. According to the appellant, tenders were invited for the work of construction of road. On 4. 12. 89, the appellant submitted its tender. Latter on, the appellant was informed by issuance of the work order about the acceptance of his tender for construction of the road to be completed within 12 months from 7. 3. 90. Inspite of the acceptance of his tender, no contract was executed by the respondent inspite of best efforts made in that direction by the appellant. The respondent has given a contract for the signature of the appellant, which was not acceptable to the appellant and, there fore, the appellant has not signed that agreement. Inspite of consistent efforts by the appellant, it was not permitted to execute the work of the contract. Later on fresh tenders were invited by the defendant-respondent and the plaintiff was in formed to that effect. It was also informed to the plaintiff that the penalty levied against him under Clauses no. 2 and 3 of the P. W. D. M. F. 107 and the amount of Rs. 2,67,148/- has to be recovered from him and he was advised to deposit that amount within 15 days. The case of the appellant was that he never signed the contract and thus, the amount cannot be recovered from him and particularly exercising the powers under Clauses no. 2 and 3. An application for temporary injunction was also moved claiming the ad-interim relief that amount should not be recovered from the appellant.

(2.) THE defendant entered appearance and filed reply. According to the defendant-respondent, the tendering contractor/appellant and the Executive Engineer signed special condition of contract and the acceptance of the tender was subject to the special condition of the contract as laid down in P. W. D. M. F. 107 particularly Clauses no. 2 and 3. THE execution of the deed of the contract was mere formality and thus the contract impliedly came into existence. Under the conditions, the respondent has a power to impose compensation and penalty and recover the same. THE appellant had committed a breach of the contract and, therefore, made himself liable for the payment of the amount. THE appellant had never started work neither had taken any steps in furtherance of the contract. He has deliberately not started the work and, therefore, under the computation the fresh tenders were invited. THE amount sought to be recovered is Rs. 1,44,153/-and not Rs. 2,67,148/ -. THE amount sought to be recovered is the amount spent additionally by the respondent and therefore, the respondent is entitled to recover this amount. THE application for temporary injunction was rejected by the trial court and this appeal is filed by the appellant.

(3.) THE plaintiff-appellant has a prima facie case and balance of convenience is in its favour. It shall suffer irreparable injury if the amount is recovered without adjudication. THE question whether there was a written contract entered between the parties, and the plaintiff-appellant is bound by the terms of the contract are still to be determined by the court but presently as the facts emerge, the respondent is not entitled to recover the amount named in Clause 2 of the condition of P. W. D. M. F. 107.