Jharkhand High Court
Prem Kumar vs Steel Authority Of India ... on 17 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C. M. P. No. 958 of 2022
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Prem Kumar
... .... Petitioner
Versus
Steel Authority of India Limited/Bokaro Steel Plant represented
by its Chief Executive Officer & Anr. ... .... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : M/s Rahul Kr. Gupta & Rahul Lamba, Advocates
For the Opp. Parties : M/s Shresth Gautam & Abhijeet Tushar, Advocates
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Oral Order
04 / Dated : 17.02.2023
1. The instant petition has been filed for an appropriate order in the nature of
Certiorari for quashing the order dated 7.11.2022 in Original Suit No.48 of 2016
whereby the petition for adducing evidence under O 18 R 17 r/w Section 151 of the
CPC has been rejected.
2. The petitioner had earlier filed Money Suit No.45/83 which was decreed in his
favour vide order dated 9.4.1992 and the respondent was directed to refund the
advance amount of Rs. 2,03,822.50 with interest @ 12%, pursuant to it the amount
was refunded, but as per the petitioner the security amount was still lying with the
Respondent .
3. The petitioner find another Original Suit No. 48 of 2016 for specific performance
of contract in which the learned Court below allowed amendment petition vide
order dated 30.8.22 which are as under
"34A. That without prejudice to the above and also to the prayer of the Plaintiff
seeking specific performance of the contract for delivery to the Plaintiff of 495.450
MT of the concerned materials, being the used and old conveyor belts, at the
contracted rate of Rs. 6650 per MT plus sales tax, the Plaintiff humbly submits that
if the Defendants would have performed its contractual obligation of delivery the
495.450 MT of the concerned material, which is old and used conveyor belts, at the
contracted price of Rs.6650 per MT plus sales tax, then the Plaintiff would have
sold the said material in the market to third parties and the Plaintiff would have
made profit being the amount of market price of such material reduced by the
purchase price of the Plaintiff from the Defendant. However, as the Defendants
have failed to deliver the said materials to the Plaintiff, the Plaintiff has suffered
the direct loss of said profit which the Plaintiff shall have made by selling the said
material to third parties.
34B. That it is humbly submitted that the Plaintiff had requested the Defendants
vide its said letter dated 18.09.2015 to deliver 495.450 MT of the concerned
materials, being the used and old conveyor belts, at the contracted rate of Rs. 6650
per MT plus sales tax. However, the Defendants did not deliver the said materials
to the Plaintiff. The rate at which the Plaintiff could have sold the said materials to
third parties during September 2015 to early 2016 is Rs.35,000 per MT.
Accordingly, the Plaintiff would have made a profit of Rs.35000 - Rs. 6650 per MT
which comes to Rs.28,350 per MT. The total profit which the Plaintiff would have
earned is Rs.28350 per MT x 495.450 MT which comes to Rs. 1,40,46,007. Thus,
the Plaintiff has suffered a clear loss of earning or profit of Rs.1,40,46,007 because
of the non-performance of the contractual obligation of the Defendants to supply
495.450 MT of the concerned materials, being the used and old conveyor belts, at
the contracted rate of Rs. 6650 per MT plus sales tax. The Plaintiff is entitled to be
compensated by the Defendants for the said loss of Rs. 1,40,46,007.
34C. That in additional to the above, it is humbly submitted that the Plaintiff was
waiting for almost 36 years since 06.08.1980 to take delivery of 495.450 MT of the
concerned materials, being the used and old conveyor belts, from the Defendant.
The Plaintiff because of the non-delivery by the Defendants, could not sell the said
materials to the buyers or customers of the Plaintiffs. The plaintiff because of this
non-delivery to his customers suffered loss of reputation, good will and mental
harassment. The said long wait of 36 years has caused huge loss to the Plaintiff.
The Plaintiff has wasted valuable period of 36 years only because of the non-
performance of the contractual obligation by the Respondents. The plaintiff is
entitled to a compensation of Rs.20,00,000 for the loss of reputation, goodwill and
mental harassment.
34D. That the Defendants, since 28.01.1980, on one side are enjoying the security
deposit amount of Rs.50,000 given by the Plaintiff and on the other side the
Defendants are not performing their contract obligations of delivering the said
materials to the Plaintiff. The defendants cannot partly rely on the contract which
favours them and not perform the other part of the contract where they have
contractual obligations. Therefore, by way of compensation, the Plaintiff is also
entitled to payment by the Respondent of interest @ 18% per annum compounded
annually on the said amount of Rs.50,000 since 28.01.1980 along with the principle
amount of Rs. 50,000 till the date of actual payment to the Plaintiff."
4. Corresponding amendments in relief portion was also allowed.
5. After the amendment, the plaintiff moved the court below under Section 18 Rule
17 read with Section 151 CPC in the original suit seeking to recall the plaintiff
witness no. 1 Naresh Prasad Lodha. The petition has been rejected by the court
below for the reason that the petition was filed at a belated stage of argument as the
case has been recalled earlier for judgment after the amendment petition was filed.
6. It is submitted by learned counsel for the petitioner that after having permitted the
amendment in the plaint, it was necessary for the ends of justice to prove certain
documents in reference to the amended pleadings. Reliance has been placed on
(2011) 11 SCC 275 wherein it has been held that the matter for consideration is
whether the evidence sought to be produced either assist in clarifying the evidence
led on the issue or led to effective adjudication. Learned counsel for the
respondent-SAIL has raised no objection provided the respondent is also given
opportunity for rebuttal of evidence.
7. Object of Order XVIII Rule 17 C.P.C. is to permit a party to adduce into evidence
by recalling any witness to ensure that all relevant and best materials are allowed to
be brought on record, which could effectively, conclusively help in finally
adjudicating the dispute between the parties. Here, in the present case a substantial
amendment has been allowed by the learned Court below by which pleadings for
damages have been incorporate in the suit. A pleading without evidence is of no
avail. Therefore, the prayer of the petitioner to recall P.W.2, is allowed to prove the
relevant documents within one month from the date of receipt of order by the Court
below subject to the payment of cost Rs.5,000/-.
The O.P. No.2 will also have opportunity to adduce evidence in rebuttal.
Instant Civil Miscellaneous Petition is allowed.
(Gautam Kumar Choudhary, J.)
AKT
