For vs For
2021 Latest Caselaw 824 Tri

                        HIGH COURT OF TRIPURA
                              AGARTALA

                          Review Pet. 24 of 2021
For petitioner(s)             :        Mr. Arijit Bhowmik, Adv
For Respondent(s)             :        None.

HON'BLE MR. JUSTICE S. TALAPATRA

Order 01.09.2021

Heard Mr. A Bhomwik, learned counsel appearing for the review petitioner.

This is a petition filed under Section 114 read with Order 47 of the Civil Procedure Code, 1908 read with Chapter X of the Gauhati High Court Rules seeking review of the judgment and order dated 27.04.2021 delivered in WP(C) 111/2017 by this Court.

Mr. Bhowmik, learned counsel has strenuously argued that as per the contract the respondent entered with the petitioner, even from the future contract the demurrage charges can be recovered but the observation made in the impugned judgment that the petitioner shall not be allowed to recover the demurrage charges in view of the fact that dismissal of the counter-claim for recovery as instituted by the petitioner in the District Commercial Court, West Tripura, Agartala has created a legal embargo from exercising the right as recorded in clause XII(b) of the contract.

Mr. Bhowmik, learned counsel has pressed hard on the grounds B, C and D which are extracted below:

"B. For that the counter claim bearing CC No.14/2011 is not a decision on merits and therefore it is open for the review petitioner to recover the said demurrage liability from the respondent through any other mode as permissible by law. Section 11 of the Civil Procedure Code, 1988 lays down the principle of res-judicata bars a subsequent suit or action based on the same cause of action but the said section 11 of the Code requires that the former suit ought to be decided on merit. But in the instant case the CC No.14 of 2011 was not decided on merit and is therefore not binding upon the review petitioner or any other parties. Therefore the review petitioner can recover the said demurrage liability owed by the Respondent through any other mode permissible by law.

C. For that the review petitioner craves leave of this Honorable Court to highlight clause XII (b) of the agreement and states that apart from the

process of the court, the review petitioner can also recover the demurrage liability as per the agreement deriving force from clause XII

(b) of the agreement. For ready reference of this Honorable Court clause XII (b) of the agreement quoted herein below:

"The corporation shall be at liberty to reimburse themselves of any damages, losses, charges, costs or expenses suffered or incurred by them due to contractors negligence and un-workmen like performance of service under the contract or breach of any terms thereof. The total sum claimed shall be deducted from any sum than due or which at any time hereafter may become due to the contractors under this or any other contracts with the Corporation. In the event of the sum which may be due from the corporation as aforesaid being insufficient the balance of the total sum claimed and recoverable from the contractors as aforesaid shall be deducted from the security deposit furnished by the contractors as specified in Para XI. Should this sum also be not sufficient to cover the full amount claimed by the Corporation, the contractors shall pay to the Corporation on demand the remaining balance of the aforesaid sum claimed."

Thus as per the said provision of the agreement the Corporation i.e. the review petitioner can reimburse to themselves any damages, loss, etc. suffered or incurred by the Corporation due to contractors negligence and by the Corporation due to contractors negligence and un-workman like performance of service or any breach thereof. The total sum claimed can be deducted from any sum due to the contractor including security deposit deposited by the contractors. The term "Any sum then due or which at anytime hereinafter may become due" will also take into ambit the future contracts which the respondent may enter into with the review petitioners. Thus the Review Petitioners can recover the demurrage liability owed by the respondent from future contracts also but in case the direction issued by this Honorable Court holds the field, the demurrage liability owed by the respondent will be immune from recovery. Recovery as per clause of the agreement is also a legal mode of recovery.

D. For that this Honorable Court may appreciate that if the Review Petitioners float a transportation contract in future and the Respondent participate in the tender and is awarded transportation contract, the Review Petitioner can recover the demurrage liability from the running bills of the Respondents as per clause XII(b) as the said clause will operate in future contracts also. The language used in clause XII (b) is unambiguous and wide therefore this Honorable Court should not interpret clause XII(b) narrowly."

According to Mr. Bhowmik, for the observation made in the judgment as regards prohibiting the petitioner from recovering the demurrage in view of dismissal of the counter-claim be modified by this court by means of review, the subsisting contractual right of the petitioner will be eclipsed.

On a reading of these grounds, what appears to this court is that according to the petitioner, the decision in the said counter claim being CC No. 14 of 2011 adjudicated by the District Commercial Court, West Tripura, Agartala cannot constitute resjudicata as there was no decision on merit.

This Court while passing the judgment, as challenged in this petition, has clearly observed that since the petitioner did not adduce any evidence in the counter-claim, the District Commercial Court has dismissed the suit for adducing no evidence in support of the pleadings and for the reliefs as claimed in the said counter claim.

But according to Mr. Bhowmik, in that context, the petitioner cannot be prohibited from recovering the demurrage from the respondent. Mr. Bhowmik, learned counsel has repeatedly stated that in terms of Clause XII(b) of the Contract under reference, the petitioner has perennial right to recover the demurrage from any future contract.

The provision of the said clause reads as follows: "The corporation shall be at liberty to reimburse themselves of any damages, losses, charges, costs or expenses suffered or incurred by them due to contractors negligence and un-workmen like performance of service under the contract or breach of any terms thereof. The total sum claimed shall be deducted from any sum than due or which at any time hereafter may become due to the contractors under this or any other contracts with the Corporation. In the event of the sum which may be due from the corporation as aforesaid being insufficient the balance of the total sum claimed and recoverable from the contractors as aforesaid shall be deducted from the security deposit furnished by the contractors as specified in Para XI. Should this sum also be not sufficient to cover the full amount claimed by the Corporation, the contractors shall pay to the Corporation on demand the remaining balance of the aforesaid sum claimed."

In addition to these contentions, Mr. Bhowmik, learned counsel has submitted that since clause XII(b) operates for future contracts also, this prohibition is not tenable in law. These are the fundamental and prime grounds of this review petition.

On a query of this court, Mr. Bhowmik, learned counsel has submitted that no action has been taken by the petitioner to get over the decision of the District Commercial Court, as noted above, as yet and thus as

of now, the judgment and order dismissing the suit (counter claim) is undisturbed and it has generated a stage of finality.

This court has given anxious consideration to the contention raised by the review petitioner and is of the view that when the petitioner had filed the Counter Claim in response to the suit filed by the respondent and the petitioner did not adduce and evidence in support of the pleadings and consequentially, the suit has been dismissed for want of evidence and further, the petitioner has not taken any action against the said judgment, the judgment and order of the District Commercial Court operate against the petitioner. Hence, the petitioner cannot be allowed to say that the decision, whereby his counter-claim has been dismissed for absence of evidence, is not binding on him. The petitioner cannot restitute the said counter-claim by filing a review petition.

As such, this court does not find any merit in this petition for review, inasmuch as the clause XII(b) cannot run contrary to the finding and decision of the District Commercial Court.

As this Court does not find any impropriety or good cause on the face of the records or otherwise, for interfering with the judgment as challenged in the review petition, the review petition stands dismissed.

However, there shall be no order as to costs.

JUDGE

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