Delhi District Court
Anup Kumar Goel vs Food Corporation Of India on 8 February, 2016
IN THE COURT OF SH. APOORV SARVARIA, CIVIL JUDGE14,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Unique Case ID No. : 02401C0832562006
Suit No. : 528/15
1. Anup Kumar Goel
S/o Sh. Niranjan Lal Goel
Sole Proprietor
M/s Surya Rice Mills,
Phulljhar Road, Mahasmund493445
District Raipur (M.P.)
2. M/s Surya Rice Mills,
Phulljhar Road, Mahasmund493445
District Raipur (M.P.)
(Proprietory Firm) through
its SoleProprietor
Sh. Anup Kumar Goel ...... PLAINTIFF
VERSUS
Food Corporation of India
Head Office
1620, Barakhamba Lane,
New Delhi110001
Through its Managing Director ...... DEFENDANTS
Date of institution of suit : 29.06.1992
Date of reserving Judgment : 20.01.2016
Date of pronouncement : 08.02.2016
SUIT FOR RECOVERY OF RS. 1,00,000/
Suit No. 528/15
Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 1 of 25
JUDGMENT
1. In the present suit, the plaintiff has prayed for the following relief:
"It is prayed for a decree against the defendants in the sum of Rs.1,00,000/ with interest @ 18% per annum both pendentelite and future till recovery and realisation of the amount."
Plaintiff's case
2. In the plaint, it is stated that plaintiffs are a firm carrying on their business at its registered office at Phulljhar Road, Mahasamund, District Raipur (MP) and Sh. Anup Kumar is proprietor of the said firm. The plaintiff firm was awarded Paddy Milling Contract No. Proc./1(3)/RM/88 dated 15.06.1988 in compliance to the terms and conditions of the contract the plaintiff had deposited with the defendants the following amounts:
i. Rs. 5,000/ as earnest money by bank draft dated 18.05.1988. ii. Rs. 30,000/ as security deposit vide FDR No. 122/88 dated 23.06.1988 issued on Punjab National Bank in favour of FCI.
3. The plaintiff performed the contract in time and completed all obligations under the contract. After completion of the contract the plaintiff submitted paddy milling Bill on 24.07.1989 to the District Office, Raipur for the paddy milled as:
i. Bill No. 1/SRM/PM dated 24.07.1989 for Rs. 2041.88 Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 2 of 25 ii. Bill No. 2/SRM/PM dated 24.07.1989 for Rs. 142.80 ___________ Rs. 2184.68 ___________
4. The defendants are stated to have raised an illegal demand vide their letter no. Proc/1(3)/PM/hrm/8889 on 27.07.89 for Rs. 48,124.85 termed as recoveries against the aforesaid contract and also threatened the plaintiffs that only on payment of the aforesaid amount of Rs.48,124.85 so raised against Paddy Milling Contract, FCI will consider the release of Bank Guarantee and other amount furnished by the plaintiffs at the time of execution of Paddy Milling Contract, which were to the extent of Rs.6,35,000/ approximately as per details given below:
i. Rs.5,000/ as earnest money in the form of bank draft deposited along with tender on 13.05.1988. ii. Rs.30,000/ as FDR No. 122/88 dated 23.06.1988 issued by Punjab National Bank duly endorsed for the performance of the contract.
iii. Rs.1,00,000/ vide bank guarantee no. 2/88 dated 01.07.1988 issued by Punjab National Bank towards cost of Paddy. iv. Rs.2,00,000/ vide bank guarantee no. 4/88 dated 04.08.1988 issued by Punjab National Bank as an additional cost of Paddy.Suit No. 528/15
Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 3 of 25 v. Rs.3,00,000/ vide bank guarantee no. 10/88 dated 08.09.1988 issued by Punjab National Bank as an additional cost for the Paddy.
Thus, the total sum of Rs. 6,35,000/ were lying in the custody of FCI.
5. It is stated that on repeated illegal demand of FCI and a threat of unpleasant consequences, plaintiffs had deposited under protest on 07.09.89 Rs. 48,124.85 vide pay order no. 352/89 dated 07.09.89 issued by the Punjab National Bank, Raipur. It is stated that FCI admittedly recovered Rs.58,684/ by District Office, Raipur. The plaintiffs strongly emphasized that the aforesaid recoveries are illegal and against the Contract Act and the FCI is liable to refund the said illegally recovered amount with interest @ 18% per annum.
6. It is stated that the FCI surprisingly without any intimation encashed on 26.06.1990 the FDR No. 122/88 dated 23.06.1990 for Rs.30,000/ of Punjab National Bank furnished by the plaintiffs to the FCI as security deposit in the aforesaid contract. It is stated that this illegal act of encashment of FDR for Rs. 30,000/ on 26.06.1990 without any demand against the plaintiffs and intimation to the plaintiffs amounts to breach of trust on the part of FCI and are liable for damages. This amount so encashed illegally are refundable to Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 4 of 25 the plaintiffs with interest at the prevailing bank rate of 18% per annum.
7. It is stated that after encashment of FDR for Rs. 30,000/ FCI has again vide their aforesaid letter no. Proc/1(3)/PM/GENL/VOL.II of 31.08.90/14.09.90 raised the false and cooked up demand for Rs.28,884/ as the penalties for realising the FDR for Rs.30,000/ which were, however, already encashed by them on 26.06.1990.
8. It is stated that the aforesaid demand is an after thought and raised with an ulterior motive to save their skin, to hide the lapses and defaults committed by them during performance of the Contract, which are evident from the correspondence from time to time in the aforesaid Contract between the plaintiffs. It is stated that strangely enough FCI claimed Rs.10,580.40 as milling charges while levied Rs.20,367.95 as Quality out and Rs.17,290/ towards the unserviceable gunnies and lifted along with Paddy for milling returned after milling.
9. It is stated that alleged demand so raised towards Quality Out and Milling charges are frivolous and without consideration of the inferior quality of Paddy supplied for milling to the plaintiffs by FCI. In fact paddy stored for years at various centres in open cap storage for long period and atmospheric exposure to the vagaries of weather resulted 1015% discoloured and 5/6% damage Paddy Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 5 of 25 Grain. This very fact of inferior Paddy not fit for milling to FCI specifications were brought to FCI notice as early as on 02.08.1988, 13.10.1988 and 06.08.1988 on receipt of Paddy for millling.
10.It is further stated that due to inferior quality of paddy supplied by the defendants for milling to the plaintiffs, plaintiffs had to repeat process thereby not only extra labour incurred, but also were time consuming. Thus, question of demand of milling charges does not arise. On the contrary, FCI is liable to pay to the plaintiffs the extra expense incurred approx. to Rs. 1,50,000/.
11. It is further stated that the FCI have pointed the claim of quality cut totalling for Rs. 20,367.95. Actually plaintiffs have delivered the rice out of Paddy delivered by FCI for milling which were very inferior and thus, horse cannot be delivered out of goat. Besides this FCI failed to issue plaintiffs sample slip within reasonable period, thus, FCI demand is after thought and imaginary are not payable by the plaintiffs.
12.It is further stated that the FCI have demanded Rs. 17290/ as differential cost of unserviceable gunnies delivered by FCI packed with Paddy for milling returned by the plaintiffs after milling whatsoever gunnies were delivered were returned to the Corporation in the same condition. As already stated that paddy were bought from various Department and due to frequent handling from Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 6 of 25 purchase of paddy to delivery to the plaintiffs under several processes and transit and continuous storage in open cap storage exposing gunnies to atmospheric change and vagaries weather the condition of gunnies at the time of lifting paddy for milling and this very fact was brought to FCI notice at that time whatsoever gunnies were fit for packing the resultant rice were used returned. Thus plaintiffs cannot be held responsible for the quality of gunnies.
13.It is further stated that the FCI has again raised a demand of Rs.
27,059.00 as penal charges on account of delay in lifting paddy beyond 90 days and Rs. 958.70 as penal charges on account of unlifted paddy besides Rs. 11,144.15 as holding charges and Rs.184.85 as storage charges, The plaintiffs submit that the aforesaid demand totalling Rs. 39,347.10 claimed as holding charges and various other penalties are in fact the after thought and are to hide their defaults, delay and other lapses committed during execution of contract. In this contest, in FCI letters dated 12.08.88, 18.08.1988,18.10.1988, 13.10.1988, 26.11.88 & 06.08.1989 it is clear that the entire action of the Food Corporation of India - defendant was not justified and no demand could be raised against the plaintiff. Further, that the defendant could not claim any amount from the plaintiff and further that the notice of the plaintiffs dated 16.10.1991 was not complied with by the defendant nor even was replied by the defendant, hence this suit.
Suit No. 528/15Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 7 of 25
14. The plaintiff claims from the defendants the following amounts:
1. Claim of refund of the earnest money amount of Rs. 5000.00 deposited with the Tender by the plaintiff on 13.05.1988 by the Bank Draft which is neither refunded nor returned and also not adjusted towards the security deposit amount.
2. Interest amount of Rs.3600.00 for the period from 23.06.1988, the date on which the security money was deposited and earnest money amount became immediately refundable but not was refunded and fully utilized by the FCI on which plaintiff incurred interest charges at the rate of 18% p.a. upto the date of the filing of the suit.
3. Refund of security deposit amount of Rs. 30000.00 furnished by the plaintiff by way of fixed deposit receipt no. 122/88 dated 23.06.1988 on Punjab National Bank Mahasumand Branch Raipur which was encashed by the defendant on 26.06.1990 illegally and without any claim/amount being due in their favour.
4. Interest amount of Rs. 10,800.00 on the security deposit amount not refunded by the defendant in spite of completion of the Contract in time and the demands made by the plaintiff and on which plaintiff incurred interest loss of Rs. 10,800.00 at the rate of 18% p.a. from 26.06.1990 to the date of institution of the suit.
Suit No. 528/15Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 8 of 25 The contract was completed on 24.07.1989 in time and amount became refundable on that date.
5. Amount of Rs. 2184.68 being the amount due to the plaintiff in respect of the milling bill dated 24.07.1989 and not paid for by the defendant despite request and the demands of the plaintiff.
6. Amount of interest of Rs. 1144.50 due on the withheld amount of the milling bill as above for the period from 24.07.1989 to the date of the suit at the rate of 18% p.a.
7. Refund of the amount of Rs. 48124.65 wrongly claimed by the defendant from the plaintiff who deposited this amount under duress and the threats of the defendant for nonrelease of amount due in contract for Rs. 6,35,000/ lying with FCI.
8. Interest amount of Rs. 23793.00 being the amount due from 07.09.1989 the date from which deposit of Rs. 48124.00/ was made by the plaintiff to the defendant as wrongly claimed by the defendant and interest rate being at 18% p.a. from 07.09.1989 to the date of the filing of the suit.
9. Amount of Rs.865.00 being the excess amount claimed by defendant and deposited by the plaintiff over and above the defendant entitlement of milling charges amount.
Suit No. 528/15Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 9 of 25
10.Amount of interest of Rs. 576.00 due on the above amount of Rs. 865.00 Claimed as excess payment/amount by the defendant from the plaintiff.
15.Total amount due is stated to be Rs. 1,26.087.83 from the defendant.
But the plaintiff claims from the defendant only the amount of Rs. 1,00,000.00 (Rupees one lac only) and gives up the claim of remaining of amount of Rs. 26,087.00. Therefore, the amount due from the defendant is stated as Rs. 1,00,000.00 (Rupees one lac only) with interest.
Defendant's Case
16.In their written statement, it is stated that the suit of the plaintiffs is barred by time. It is stated that it is correct that M/s Surya Rice Mill, Mahasamund, has been awarded paddy milling contract bearing no. proc/1(3)/PM/8889 dated 15.06.1988 vide Regional Office Bhopal, telegram dated 15.06.1988 in respect of paddy milling tender opened on 13.05.1988 in respect of paddy milling tender opened on 13.05.1988 and negotiations held on 31.05.1988 at Regional Office Bhopal.
17. It is submitted that M/s Surya Rice Mill, Mahasamund, executed paddy milling contract agreement on 23.06.1988. Earnest Money of Rs. 5000/ was furnished in the form of Demand Draft on Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 10 of 25 13.05.1988, along with tender submitted at Regional Office Bhopal on 13.05.1988. Security deposit Rs. 30,000/ as per tender terms was furnished in the form of FDR bearing no. QDQ 952678/122/88 dated 23.06.1988, of Punjab National Bank Mahasamund branch. It is further stated that the plaintiff had not completed the milling work within the stipulated period mentioned at clause no.g (iii) of the agreement. Thereby plaintiff committed breach of the contract.
18. It is further stated that the plaintiff submitted two paddy milling bills. The milling charges Rs. 2184.65 payable to the miller for paddy lifted from Dhamtari, were adjusted in other recoveries as per the provisions contained in clause g(ii) of the Tender agreement and the defendant corporation has every right to adjust any amount arising in this contract to adjust from the bills of plaintiff. The details of adjustments of the bills amounts is as detailed below:
19.Fine: Rs. 14,570.60 Recoverable from party as per contract terms & conditions clause g(ii) towards quality cuts.
() Rs. 2,041.85 Milling charges bill no.1 dated 24.07.1989, payable to party are adjusted.
Rs. 12,528.75 Balance recoverable from the party. Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 11 of 25 Common:Rs. 7,982.00 Recoverable from party as her contract agreement terms and conditions clause g(ii) towards quality cuts.
Rs. 142.80 Milling charges bill no.2 dated 24.07.1989, payable to party are adjusted.
Rs. 7,839.20 Balance recoverable from the party. Thus the plaintiff is liable to pay to the defendant corporation an amount of Rs. 12,528.75 Ps + Rs. 7,839.20 Ps. (Rs. 20,367.95) towards quality cuts as per the clause g(ii) of the tender agreement.
20.The demand raised for Rs. 48,124.85 vide letter no.
Proc/1(3/PM/SRM/8889) dated 27.7.1989 was absolutely stated as per tender agreement terms & conditions towards recoveries under different heads such as quality cuts, holding charges, storage charges, differential cost of 8645 unserviceable gunnies returned in place of serviceable gunnies and cost of short delivery of rice. The demand was genuine and legal as per terms and conditions of agreement. As the liabilities raised by the defendant corporation was in accordance with the terms of tender agreement the plaintiff has deposited the amount and furnished NDC for finalization of this contract, itself proves that the liabilities are correctly raised and agreed by the plaintiff. On receipt of the dues as stated in defendants letter dated 27.07.1989, the bank Guarantee worth Rs.
Suit No. 528/15Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 12 of 25 6,00,000/ were released to the plaintiff on 15.09.1989. Therefore, the allegation that the amount of Rs. 6,00,000/ is in the custody of FCI is false.
21. It is further stated that the plaintiff had willfully deposited that said amount as per the provisions of the tender agreements. The remittance Rs. 48,124.85 vide pay order no. 352/89 dated 07.09.1989, made by plaintiff is towards legitimate FCI dues under different clauses, in accordance to tender agreement terms.
22.It is further stated that the plaintiff is due to pay to the defendant an amount of Rs. 87,568.95 towards the liabilities against various items which was conveyed to plaintiff vide letter dated 14.09.1990, which are due to the breach of contract committed by the plaintiff. The defendant corporation could realize only an amount of Rs. 58,684.85 from the plaintiff as against total dues of Rs. 87,568.95. The plaintiff is still due to the defendant corporation an amount of Rs. 28,884.10. Hence refund of Rs. 58,684.85 to the plaintiff does not arise.
23.It is further stated that the FCI has not committed any breach of contract since the plaintiff failed to fulfill the contractual obligations and could not complete milling of contracted quantity of paddy within stipulated time of 90 days given in clause g(iii) of the agreement and hence the security deposit of Rs.30,000/ and earnest Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 13 of 25 money deposit of Rs.5,000/ was withheld for want of submission of clear NDC by the plaintiff after depositing pending legitimate dues of Rs. 28,884.10 as per the tender agreement.
24.It is further stated that the plaintiff has been duly intimated vide letter no. Proc1(3)/PM/Genl/vol.II dated 14.09.1990, that the balance amount of Rs. 7074.60 is refundable to the party after adjusting pending dues from the security deposit and earnest money deposit amount. The BGs of worth of Rs. 6,00,000/ were not withheld and more over the said BGs were released to the plaintiff on 15.09.1989.
25.It is further stated that since the FCI had to recover dues on account of breach of contract by the plaintiff under different clause of milling contract agreement, the action of encashment of FDR bearing no. 122/88 dated 23.06.1988, for Rs. 30,000/ by FCI is quite correct.
26.It is further stated that the plaintiff has been duly intimated vide letter no. Proc/1(3)/PM/Genl/Vol.II dated 14.09.1990 that the balance amount of Rs. 7074.60 is refundable to the party after adjusting pending dues from the Security deposit and Earnest Money deposit amounts and advised to submit prereceipt for Rs. 7074.60 Encashment of FDR by the defendant corporation is legitimate and as per the provisions contained in the tender Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 14 of 25 agreement at Clause1, since the plaintiff failed to perform the contractual obligations and committed breach of contract. Hence the defendant corporation is neither liable to pay, any extra amount to the plaintiff except the amount shown in the letter dated 14.09.1990 nor any interest on the encashed FDR amount as per ClauseK.
27. It is further stated that the plaintiff was due to the defendant corporation a total amount of Rs. 87,568.95, which was derived while finalization of the contract. After adjusting the amount paid by the plaintiff on 07.09.1989, alongwith, other amounts, the plaintiff is still due to the defendant corporation an amount of Rs. 28,884.10. As this amount is the legitimate due to the defendant, the plaintiff was advised to either to deposit the dues to enable releasing SD and EMD amount or to give prereceipt for the balance amount of Rs. 7074.60 as a final settlement. The plaintiff failed to do the needful and thus encashment of FDR is justified.
28.It is further stated that the plaintiff failed to fulfill the contractual obligations and did not complete milling of entire quantity of paddy within stipulated time of 90 days from the date of acceptance of tender. The plaintiff intentionally prolonged the milling period and committed the breach of contract. Thus the liabilities raised by the defendant corporation in accordance to the terms of the tender agreement are just and legitimate.
Suit No. 528/15Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 15 of 25
29.It is further stated that the claim of Rs. 10560.40 as milling charges is correct as per the minus rates @ Rs. 1.10 per quintal for Mahasamund Paddy and Rs.1/ per quintal per Bagbahara paddy quoted in tender and accepted after negotiations held in Regional office, Bhopal by plaintiff. On final analysis of sample of rice delivered by plaintiff, various refractions/constituents were found beyond tolerance a limits in the District Laboratory. The quality cuts were imposed as per specification prescribed in tender agreement. Therefore the claim of Rs. 20,367.95 as quality cut is justified since the same is in accordance to tender agreement clause g(ii). Similarly claim of Rs. 17,290/ levied towards differential cost @ Rs. 2% per gunny for returning 8645 Unserviceable gunnies against serviceable gunnies supplied with paddy stocks is in accordance to tender agreement clause 'O' (iv).
30.It is further stated that while inviting tender, it was specifically mentioned in the tender that delivery of paddy for milling will be made on "As is where is basis". The plaintiff had inspected the paddy stocks thoroughly before offering tender and then only submitted tender and consequently entered into milling agreement. Therefore, the allegation of supply of inferior quality of paddy for shelling is not correct. The claim raised towards quality cuts were qualitycuts imposed for rice stock delivered as per the tender agreement clause of g(ii) and the specification conveyed to the plaintiff through tender form are applicable which is specified by Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 16 of 25 the Govt. of India. The milling charges are calculated as per rates quoted in the tender which was awarded after negotiations and the decision of negotiation are binding on the plaintiff.
31. It is further stated that the question of supply of inferior quality of paddy does not arise since the delivery of paddy is regulated on "as is where is basis" as per agreement clause 'C'. The milling charges are payable by plaintiff as per, minus rates quoted by plaintiff in the tender, accepted on negotiations held at Regional Office, Bhopal and is as per provisions contained in the agreement in para "payment" at clause (ii). The plaintiff had offered the milling rates for the paddy, he had seen before offering his tender as the paddy was tendered on "As is where is basis" for milling. The question of raising the additional milling charges by the plaintiff is mischievous and devoid of contractual obligations. The extra expenses of Rs. 1,50,000/ alleged to have been incurred by the plaintiff are against contract conditions and therefore, question of its reimbursement does not arise.
32.It is further stated that the claim of quality cuts raised for the stocks of rice was in accordance as per agreement clause g(ii). The allegation of issue of inferior quality of paddy was wrong. The paddy stock were delivered on "As is where is basis "as per agreement clause 'C' as explained in preparas 13,14 and 15.
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33.It is further stated that the stock of paddy was delivered to plaintiff in serviceable gunnies only and the delivery was taken by the authorized representative of the plaintiff who did not find deformity in the gunnies and did not raise objections while taking delivery. But at the time of return of empty gunnies plaintiff delivered 8645 unserviceable gunnies against serviceable gunnies. The plaintiff unlawfully utilized defendants gunnies for his own works and rendered them unserviceable. Therefore the differential cost of gunnies amounting to Rs. 17,290/ @ Rs. 2/ per gunny for 8645 unserviceable gunnies was correct and is in accordance to tender terms.
34.It is further stated that the penal charges Rs. 27,059.00 imposed on account of delay in lifting paddy beyond stipulated period of 90 days as per tender clause m(x), g(iii) Rs. 11,144.15, holding charges on failure to deliver resultant rice within the stipulated period of tenders of lifting of paddy stocks as per agreement clause m(vii) and Rs.184.85 as storage charges on failure to lift the paddy from godowns within the stipulated date mentioned on the release order as per agreement clause m(iii). The defendant corporation has acted in true spirit in regulating the contractual obligations and processed the liabilities taking in all possible exemptions that can be exempted before raising any liabilities. The waiver of Rs. 958.70 by the defendant corporation from the total liabilities against the plaintiff proves itself that the defendant corporation has meticulously Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 18 of 25 processed and given exemption though can be levied. The penalties imposed as mentioned above are lapses committed by plaintiff during execution of contract and are strictly in accordance to tender terms and not after thoughts as alleged by plaintiff.
35.It is further stated that the earnest money of Rs. 5,000/ deposited by plaintiff with tender is withheld to adjust towards various recoveries due from the plaintiff in the said contract. It is further stated that no interest is payable on the Earnest Money amounted as per tender terms and conditions stated at para ix(b) of tender. It is further stated that the security deposit in the form of FDR for Rs. 30000/ is encashable by the defendant corporation, since defendant had to recover dues on account of breach of contract committed by plaintiff under different clauses of milling contract as per agreement clause '1'. FCI intimated the plaintiff the balance amount of RS.7074.60 after adjusting the dues from the EMD and SD amount refundable to plaintiff vide letter no. proc/1(3)/Pm/Genl/Vol.II dated 31.08.1990/14.09.1990 and requested to submit prereceipt for Rs.7074.60 for finalizing contract but the plaintiff failed to do so.
36.It is further stated that the amount of Rs.2184.68, of milling bills are adjusted towards a part of quality cuts amount recoverable as per agreement clause of g(ii), therefore the milling charges bills payable to plaintiff remains unpaid is wrong. It is further stated that the milling charges bills amounts are adjusted towards part of dues Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 19 of 25 recoverable from the plaintiff the question of interest on milling charges bills does not arise.
37. It is further stated that the dues of Rs. 48,125.85 on account of various recoveries, quality cuts, holding charges, storage charges, return of unserviceable gunnies, cost of short delivered rice strictly in accordance to different clauses of agreement were claimed correctly with plaintiff and paid by the plaintiff as per the conditions of the contracts and hence refund of the amount of Rs. 48,124.85 does not arise. The bank Guarantees worth of Rs. 6,00,000/ were released on 15.09.1989. After adjusting the pending dues amount of Rs. 27,925.40 on account of delayed lifting of paddy i.e. beyond stipulated period of 90 days as agreement clause m(x) from the pending EMD and SD amount of Rs. 35,000/ the balance amount of Rs. 7074.60 only refundable to party on production of prereceipt bill and clear NDC and plaintiff has been duly intimated to submit prereceipt for Rs. 7074.60 and collect the amount from FCI vide letter proc/1(3)/PM/Genl/Vol.II dated 31.08.1990/ 14.09.1990.
38.It is further stated that the amount of Rs.48,124.85 paid by the plaintiff towards dues of FCI as per agreement towards and condition of contract. The claim of interest on the amount by plaintiff is wrong and illegal and the defendant is not liable to pay any amount to plaintiff as interests since the claim itself is devoid of Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 20 of 25 facts. It is further stated that the amount of Rs. 865.00 milling charges excess deposited by the plaintiff are adjusted towards dues recoverable from the plaintiff and intimated to plaintiff vide letter no. proc/1(3)/PM/SRM/8889 dated 27.07.1989, hence the amount of Rs. 865.00 is not refundable to the plaintiff.
39.It is further stated that the amount of Rs.865.00 was not due to the party the claim of interest Rs. 576.00 by the plaintiff on this amount is wrong and illegal. The claim of Rs. 1,00,000/ by the plaintiff with interest pendenilite etc., is wrong and illegal as per the facts stated in the above various earlier paras.
Issues
40.On 17.08.1994, following issues are framed:
1. Whether the suit is barred by time? OPD
2. Whether the plaint discloses no cause of action? OPD
3. Whether the suit has not been properly valued for the purposes of court fee? OPD
4. Whether this court has no jurisdiction to try this suit? OPD
5. Whether the defendant have rightly recovered an amount of Rs.
58,684.85 as from the plaintiff as penalty and if this issues is proved against the defendants, its effect? OPD
6. Whether the defendants have still to recover an amount of Rs.
28,884.10 from the plaintiff as penalty and whether the defendant the defendant can adjust this amount from the security Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 21 of 25 amount and the earnest money and if this issue is proved against the defendants its effect? OPD
7. Whether the plaintiff is entitled to recover/release the amount of Rs. 35,000/ as security money and earnest money? OPD
8. To what amount the plaintiff is entitled to? OPD
9. Whether the plaintiff is entitled to interest at what rate?OPP
10.Relief.
Evidence led by parties
41. Plaintiff produced Sh. Anoop Kumar Goel as PW1 who was examinedinchief and thereafter, crossexamined after which plaintiff closed the evidence.
42.Defendants produced DW1 Sh. S.P. Oka, Assistant Manager, FCI, Raipur who was examined in chief and thereafter, crossexamined after which defendants closed the evidence.
43.The suit was initially dismissed vide judgment dated 18.07.2000.
Thereafter, Ld. Appellate Court vide its judgment dated 06.09.2006 remanded back the case for fresh trial with directions to give opportunity to the parties to lead evidence and advance arguments.
44.Thereafter, certified copy of tender documents were filed by the plaintiff in compliance of order dated 13.09.2007 and the same were Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 22 of 25 marked Ex. B. On 10.01.2008, plaintiff's counsel made statement that plaintiff does not wish to lead further evidence.
45.On 24.08.2009, Ld. Counsel for defendant made statement that he does not want to lead DE.
46.This Court has heard Ld. Advocates for defendant and perused the record. Plaintiff did not appear to address arguments and plaintiff's opportunity was closed.
Findings
47. Issuewise findings of this Court are as under:
Issue no. 4: Whether this court has no jurisdiction to try this suit? OPD
48.Onus to prove this issue is on the defendant. The contract was awarded to the plaintiff by the Regional Office of FCI, Bhopal, M.P. for being carried in District Raipur. It has been alleged that no part of cause of action arose within the territorial jurisdiction of this Court. After going through the documents placed on record, the Court is of the view that plaintiff has failed to show any document which would suggest or infer that any part of the transaction between the parties took place in Delhi Office of FCI or anywhere else in Delhi. Merely because the head office is situated at Delhi Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 23 of 25 would not perse invite the territorial jurisdiction of Delhi Court. Therefore, this Court has no territorial jurisdiction to entertain the present suit since no part of cause of action has arisen in Delhi. Hence, this issue is decided in favour of the defendant against the plaintiff.
Issue no. 1: Whether the suit is barred by time? OPD Issue no. 2: Whether the plaint discloses no cause of action? OPD Issue no. 3: Whether the suit has not been properly valued for the purposes of court fee? OPD Issue no. 5: Whether the defendant have rightly recovered an amount of Rs. 58,684.85 as from the plaintiff as penalty and if this issues is proved against the defendants, its effect? OPD Issue no. 6: Whether the defendants have still to recover an amount of Rs. 28,884.10 from the plaintiff as penalty and whether the defendant the defendant can adjust this amount from the security amount and the earnest money and if this issue is proved against the defendants its effect? OPD Issue no. 7: Whether the plaintiff is entitled to recover/release the amount of Rs. 35,000/ as security money and earnest money? OPD Issue no. 8: To what amount the plaintiff is entitled to? OPD Issue no. 9: Whether the plaintiff is entitled to interest at what rate? OPP Suit No. 528/15 Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 24 of 25
49.In view of the finding of this Court on issue no. 4, since this Court has no territorial jurisdiction to entertain the present suit, so it would not be appropriate to deal with other issues on merit.
Issue no. 10: Relief
50.In view of the findings of this Court on the issue no. 4, this Court has no territorial jurisdiction to entertain the present suit. The plaint is accordingly returned to the plaintiff to be presented before the competent Court having territorial jurisdiction in the matter. File be consigned to Record Room.
Announced in the Open Court Apoorv Sarvaria,
on the day 8th February, 2016 Civil Judge14, Central,
Tis Hazari Courts, Delhi
Suit No. 528/15
Anup Kumar Goel & Ors. v. Food Corporation of India Page No. 25 of 25