Sri. Pranjit Saikia vs Food Corporation Of India
2022 Latest Caselaw 760 Tri

                             1



              HIGH COURT OF TRIPURA
                     AGARTALA
                 RFA No.17 of 2016
                 RFA No. 22 of 2017

Sri. Pranjit Saikia, Proprietor, M/S. Saikia Trade and
Transport Company, Having its principal office at Srinagar,
Guwahati-781005 And branch office in other towns
including Agartala.
                                       -----Appellant(s)
                        Versus
1.Food Corporation of India, Head Office 16-20
Barakhamba Road, New Delhi - 110001, represented by its
Managing Director.
2.Executive Director, Food Corporation of India,
Zonal Office, Ulubari Road, Guwahati-781007.
3.General Manager, North East Region, Mid-Land
Shillong - 766003, Meghalaya.
4.Area Manager, Food Corporation of India, District
Office, Colonel Chowmuhani, Agartala -799001, West
Tripura.
5.Area Manager, Food Corporation of Indian, District
Office, Aizwal, Mizoram.
                                     -----Respondent(s)

                      RFA 22/2017

1.Shri Ranjit Kumar Saha, Partner of - M/S. Ranjit
Kumar Saha and Sons (A partnership firm)

2.Shri Subrata Kumar Saha Partner of - M/S. Ranjit
Kumar Saha and Sons (A partnership firm)

3.Shri Susanta Saha Partner of - M/S. Ranjit Kumar Saha
and Sons (A partnership firm)

4.Shri Manindra Debnath Partner of - M/S. Ranjit Kumar
Saha and Sons (A partnership firm)

5.Shri Pradip Saha Partner of - M/S. Ranjit Kumar Saha
and Sons (A partnership firm)
                                  2



6.Shri Anil Kr. Choudhuri Partner of - M/S. Ranjit Kumar
Saha and Sons (A partnership firm)
7.Shri Nani Gpal Paul    Partner of - M/S. Ranjit Kumar
Saha and Sons (A partnership firm)

8.Gopal Chakrabarty (now deceased) Partner of - M/S.
Ranjit Kumar Saha and Sons (A partnership firm) Having
its Office at Old Thana Lane, West Banamalipur Agartala
799001.

                                              ------Appellant(s)
                             Versus

1.Food Corporation of India Head Office 16-20
Barakhamba Road, New Delhi - 110001, represented by its
Managing Director.
2.Executive Director, Food Corporation of India, Zonal
Office, Ulubari Road, Guwahati - 781007.

3.General Manager, North               East    Region,   Mid-Land
Shillong - 766003, Meghalaya.

4.Area Manager, Food Corporation of India,       District
Office, Colonel Chowmuhani, Agartala - 799001, West
Tripura.
5.Area      Manager,       Food   Corporation   of   India,
District Office, Aizwal, Mizoram.
                                      ------Respondent(s)

                            BEFORE
       HON'BLE MR.JUSTICE T.AMARNATH GOUD

     HON'BLE MR. JUSTICE S.G CHATTOPADHYAY

For the Appellant(s)         : Mr. D.K.Biswas, Sr. Adv.
                               Mr. G.K.Nama, Adv.

For the Respondent(s)        : Mr. R.G.Chakraborty, Adv.

Date of hearing              : 04.08.2022
Date of Pronouncement        : 11.08.2022
Whether fit for reporting    :       YES/NO
                                        3



                             JUDGMENT

(Per T.Amarnath Goud).J

[1] These appeals, being RFA 17 of 2016 and RFA

22 of 2017 challenging the judgment and decree dated

27.02.2016 in T.S.130 of 2012 and Judgment and decree

dated 26.04.2017 in T.S.106 of 2012 passed by the Civil

Judge(Sr.Div), West Tripura, Agartala respectively, have

been clubbed together for disposal by a common

judgment.

[2] The appellant contract-transporter in RFA 17 of

2016 having been selected under tender dated

12.08.2009[Exbt.1] floated by the Food Corporation of

India (FCI for short)[respondent herein] for transporting

food grains on behalf of FCI for two years, started

transportation of the same after depositing 50% of the

total security deposit on condition of deducting remaining

50% from the admitted bills at 5% as per the tender

provision, meanwhile after repeated communications by

the Executive Director, FCI, since 01.06.2010, the

appellant received letter on 07.06.2010 informing the

appellant of possible termination of contract and imposing

'risk and cost terms' obligation under which the appellant

would be allowed to carry the load prescribed by the

respondent only which was reduced to half of the weight

the appellant contractors would carry, as usual, on

commencement of the contract work thereby causing huge

loss of profit to the appellant. The appellant was compelled

to stop transportation of goods in the face of unbearable

loss to an unbearable extent.

[3] Subsequently, the agreement between the

appellant and the respondent was terminated on the face

of failure of enforcement of load regulation and fresh

tenders were invited on 12.07.2010 for the residual part of

the terminated agreement applying the risk and cost

condition under Clause X(a),(b) and (c) of the agreement.

The appellant was entrusted for transportation of goods by

three agreements/contracts on different routes as under:

1)Guwahati to Chandrapur [the work commencing on 01.07.2008]

2)Guwahati to Dharmanagar [the work commencing on 07.12.2009]

3)Guwahati to Aizwal [the work commencing on 20.01.2010]

4) Churaibari to CWC Hafania and Dharmanagar to Hafania.

[4] For remaining major part of the works the

respondents floated fresh tenders on 13.07.2010 showing

new rate per ton at Rs.4,700/- which was 2,001/-(from

Changsari to Agartala in the terminated contract)

preventing the appellant from contesting in the fresh

tender stating them as defaulters. According to the

appellant, it was impossible to perform transportation

under new rate causing huge loss of profit. It is pleaded

that the appellant would have earned profit provided under

Schedule-2, if that rate was allowed to the plaintiff for

performing remaining major part of the works.

[5] Invoking the provisions of clause X(c), the

respondent, by issuing notice dated 24.11.2010[Exbt.27],

also cautioned the appellant that in the event of non

execution of the remaining part of the work entrusted, the

appellant shall be liable to make good to the respondent

and fresh tender dated 13.07.2010[Exbt.21] was floated

for engaging new transport contractors for completing the

remaining part of the work.

[6] Besides withholding and forfeiting the security

money as shown in Schedule-1 of the Annexure, the

respondents also raised demand for a huge sum of money

from the appellant to realize risk and cost by issuing

notices dated 01.11.2011, 11.08.2011, 26.06.2011 and

26.08.2011 [Exbt. 26 series].

[7] So far the addition of clause in the said contract

regarding load restriction is concerned, the appellant

submits that no such clause was found available in the

earlier tender notice dated 12.08.2009. Due to the severe

restrictions imposed by the Government of Assam in

respect of permitted load capacity, according to the

appellant, the contract became impossible to perform.

Thus the appellant cannot be made liable for any damage

whatsoever.

[8] The appellant has further submitted that a

similar suit being T.S. 106 of 2012 was earlier filed by one

Ranjit Kumar Saha [Appellant in RFA 22 of 2017] and

hence he prayed for proceeding with the two suits together

for avoiding divergent findings.

[9] The appellant has categorically stated that he

had suffered loss of profit. Apart from that he is also

entitled to get back his security deposit as the contract

was frustrated without fault. In that circumstances, in the

suit, the plaintiff has asked for the following reliefs:

i) A decree of declaration that the termination of the contract is improper, illegal and void.

ii) a decree of declaration that NIT dated 12.08.2009 did not incorporate the load restriction pursuant to the direction of the apex court and hence the plaintiff suffered enforcing circumstances which led him to stop transportation and hence the said NIT is unfair, unreasonable, illegal and void.

iii) a decree of declaration that the letter dated 12.07.2010 imposing risk and cost for the remaining period of the contract is illegal, unfair, and is not sustainable.

iv) a decree of declaration that the forfeiture of the security money is illegal and the plaintiff is entitled to the release of the security deposit with interest.

v) a decree of declaration that the plaintiff is entitled to a damage caused by the termination to the extent of Rs.3,00,000,00/- in terms of the account provided in schedule II of the plaint with usual cost of the suit.

[10] Denying the claim of the appellant the

respondents stated that imposition of the restriction cannot

be a ground for stopping transportation since the provision

in the statute existed since inception and the apex court in

Paramjit Bhasin and Others vs. Union of India and

Others reported in (2005) 12 SCC 642 directed the

concerned state Government to implement the direction of

law. The respondents have categorically stated in their

reply that the tenderer are supposed to quote the rate and

abide all statutory provisions. According to the respondent,

the security deposit of the appellant was withheld or

forfeited to recover losses incurred by the respondent only.

[11] According to the respondent, despite caution of

risk and cost, the appellant stopped transportation of

goods which compelled the respondent to make alternative

steps by floating new tender notice on 12.07.2010 to get

the work done to meet the severe food crisis in the north

east region.

[12] Thus the respondent prayed for dismissal of the

suit without any interference with their demand.

[13] Both the suits were taken up together and

decided by the judgment dated 16.04.2017 and dismissed

by the Civil Judge, Sr.Div, Court No.2 holding that the

appellants have failed to prove their claim and as such they

are not entitled to get compensation from the respondents

(FCI) due to termination of agreement. It has been further

held that the communication dated 31.12.2007 terminating

the contract with risk and costs under clause X(a), (b) and

(c) is not illegal and termination of agreement by letter

dated 12.07.2010 does not suffer any infirmities and as

such, forfeiting of security money as described in

Schedule-I of the plaint by the respondent is also not

illegal. Therefore, the counter claimants are not entitled to

get recovery of Rs.5,37,79,067.38/- with interest.

[14] Being aggrieved, the appellant filed the instant

appeal. The respondents herein did not challenge the

finding returned by the Civil Judge, Sr.Div., Court No.2.

[15] Heard Mr.D.K.Biswas, learned senior counsel

assisted by Mr.G.K.Nama, learned advocate appearing for

the appellants. Learned counsel contended that the tenders

floated for transportation of the food grains did not carry

any caution on load restriction. As a result, the appellant

offered the rate less than half of the rate that was

subsequently offered by the FCI.

[16] Mr. Biswas, learned senior counsel further

contended that the FCI has not suffered any loss. The FCI

paid the contractors at the rate of the contract from

October, 2009 to 2010 which was less the rate. The NIT

would have been settled at double the rate i.e. the rate

settled after the NIT No.10. Thus, prayed to allow the

appeal.

[17] The standing counsel representing the

respondents argued that the appeal is liable to be

dismissed as no allegations of grievances made and

established against the respondents. The appellant has to

strictly adhere to the terms and conditions of the

agreement and in the light of the MV Act and Rules and

Judgment of apex court they have to transport goods.

[18] Admittedly, there cannot be any act or contract

contrary to law as per the Motor Vehicles Act and Rules

framed there under. Laden or un-laden weight is

specifically prescribed and the same is reflected in the

Vehicle's papers. The owner of the vehicle or the

transporter needs to follow the Motor Vehicles Act and

Rules and accordingly transport the goods. Any act of any

authority permitting, willfully or ignorantly, the vehicle to

transport the goods more than the permissible limit of

laden weight cannot be treated as the right and license to

carry excess weight in the goods vehicle. The order of the

Apex Court in the case of PARAMJIT BHASIN AND

OTHERS VS. UNION OF INDIA AND OTHERS reported

in (2005) 12 SCC 642 also indicated the same. The

observation of the apex court in this regard is as under:

"5. Section 200 does not in any way authorize the State Government to permit the excess weight to be carried when on various inspection/detection it is noticed that there is carriage of load beyond the permissible limit. It only gives an opportunity of compounding so that instead of the amounts fixed, lesser amounts can be accepted by the authorised officers. The intention of uploading the excess weight is apparent from a bare reading of the Section 194(1). The liability to pay charge for uploading of the excess load is fixed on one who drives a vehicle or causes a motor vehicle to be driven in contravention of the provisions of Sections 113, 114 and 115. It is to be noted that compounding can be done either before or after the institution of the prosecution in respect of the enumerated offences. Any notification which runs counter to the clear import of Section 194 has no validity. As rightly submitted by learned counsel for the petitioners after compounding the excess load, same cannot be permitted to be carried in the concerned vehicle. Such carriage would amount to infraction of Section 113 of the Act. The object for which the maximum permissible weights have been fixed is crystal clear. On a perusal of the provisions it is clear that the maximum gross weight (in short 'GVB') of the trucks is 16.2 tonnes which enables loading of about 9 tonnes. The load rating is primarily based on the road design, specifications of Indian roads. Rule 95(2) of the Central Motor Vehicles Rules, 1989 (in short 'the Central Rules') prescribes the principles which cover the fixation of GVB of the vehicles. The same reads as follows:-

"Rule 95(2): The maximum gross vehicle weight and the maximum safe axle weight of each axle of a vehicle shall, having regard to the size, nature and number of types and maximum weight permitted to be carries by the types as per sub- rule (1), be

i. Vehicle rating of the gross vehicle weight and axel weight respectively as duly certified by the testing agencies for compliance of the rule 126,

or ii. the maximum vehicle weight and maximum safe axle weight of each vehicle respectively as notified by the Central Government, or iii. the maximum total load permitted to be carried by the tyre as specified in sub-rule (1) for the size and the number of the tyres fitted on the axles

(s) of the vehicle.

Whichever is less:

Provided that the maximum gross vehicle weight in respect of all vehicles, including multi axle vehicles not be more than the sum total of all the maximum safe axle weights put together."

[19] There cannot be any grievance by the

transporter against the Food Corporation of India. Having

signed the contract, no party is permitted to wriggle out of

the contract and further claim for compensation for their

damages without performing their obligatory duty in terms

of the contract cannot be appreciated. This court is not

inclined to grant any compensation of their damages as

claimed for to the appellant.

[20] Learned counsel of the appellant, Mr. Biswas

submitted that the issues in this petition came up before

this court for consideration and one of us are party to the

said judgment in RFA 14 of 2016 dated 26.02.2021 and

prayed to grant the same relief in terms of the said

judgment and to return the security deposit.

[21] In view of the same and following the judgment

cited to supra, the present appeal is also disposed of

granting relief to the limited extent of directing the

respondents to return the security deposit to the

appellants within two months.

[22] In terms of the above, the appeal stands partly

allowed.

                          JUDGE                              JUDGE




Saikat Sarma