3. Short facts of the case of the appellant/plaintiff i.e. the
contractor are as follows:
The original suit was filed by the appellant/plaintiff i.e. the
contractor before the Learned Trial Court, claiming detention charges along
with interest for delay in unloading of food grains beyond the stipulated period
due to shortage of storage space, as per the tender agreement.
3.1. The case of the appellant, in short, is that he runs a transport
business in the name of M/s Suvajit Paul and the respondents-FCI appointed
him as a transport contractor for a period of 2(two) years for transportation of
food grains/sugar and other allied materials including loading and unloading
works at Food Storage Depots from railway siding/FSD Dharmanagar to FSD
Arundhutinagar, Agartala. As per the tender agreement, the appellant started
transportation of food grains w.e.f. 01.05.2012 and had been carrying out the
work of loading of food grains from Railway Wagon at railway siding, FSD
Dharmanagar and transporting the same to FSD, Arundhutinagar, Agartala,
Tripura by using trucks/lorries under road movement permits issued by the
Depot in-charge, FCI, Dharmanagar, mentioning the date of dispatch with a
validity period of 3(three) days, including the date of dispatch and the date of
delivery at the destination. The appellant executed the work of loading and
unloading of food grains during the period of contract.
3.2. It was the case of the appellant that due to shortage of
accommodation in the FCI storage/go-down at Arundhutinagar, Agartala, the
delivery of food grains could not be effected within the stipulated period and
the respondents-FCI almost in all the occasions had detained the loaded
vehicles at the destination point for a period of about 4 to 20 days for which
the appellant had to suffer huge financial losses and also had to pay recovery
charges. The appellant had claimed a sum of Rs. 800/- per day for detention of
every loaded truck at the destination point by writing several letters to the
respondent-Area Manager but they did not pay any heed to those letters.
3.3. It was further the case of the appellant-contractor that the General
Manager, FCI, Regional Office, NEFR, Shillong by a letter dated 12.07.2013
supplying copy to the appellant/plaintiff informed the Director of Food and
Civil Supplies and Consumer Affairs, Govt. of Tripura that due to increase in
induction of food grains and inadequate storage capacity in the FCI go-down
in the State of Tripura, the respondent-Area Manager was not in a position to
unload the trucks. The appellant, from time to time, made claims for detention
charges of the vehicles to the respondents-FCI by submitting bills, but no
action was taken. Hence, the appellant/plaintiff filed the case before the
Learned Court below seeking relief(s) as stated above.
4. Defence of the respondents/defendants i.e. FCI:
The respondents-FCI contested the suit by filing written
statement stating inter alia that the appellant/plaintiff had entered into a tender
agreement with the respondents-FCI for transportation of food grains from the
railway siding/FSD Dharmanagar to FSD Arundhutinagar, Agartala. The
entrustment of the work of transportation of food grains was accepted by the
respondent no.2 i.e. the General Manager, pursuant to the NIT dated
13.09.2011 by a letter of acceptance dated 30.04.2012. According to the
respondents-FCI, due to failure of the appellant/contractor to supply trucks as
per indents issued by the respondents, the respondents-FCI had incurred huge
financial losses in terms of "demurrage charges" imposed by the railways.
4.1. It was further the case of the respondents-FCI that as per Clause-
X of the tender agreement, the appellant/plaintiff i.e. the contractor was liable
for all costs, damage, registration fees, charges and expenses incurred by the
Corporation due to negligence of the contractor and as per Clause-XII, the
Corporation would be at liberty to reimburse themselves for any loss, damage,
charges, costs or expenses suffered or incurred by the Corporation.
The respondents-FCI further took the plea that the rate quoted by
the appellant-contractor pertaining to transportation work was accepted by the
respondent No.2 i.e. the General Manager on 30.04.2012 and the appellant-
contractor was appointed as transport contractor for a period of 2(two) years
with effect from 01.05.2012 to 30.04.2014 which was subsequently extended
for a further period of 2(two) months. However, the respondents-FCI denied
the allegation of the appellant-contractor regarding shortage of
accommodation at the receiving depot. The respondents-FCI stated that as per
Clause-XVIII(vi) of tender agreement, no compensation was admissible to the
contractor in respect of detention of trucks at go-down or any other loading/
unloading points or any other place unless such detention is of an
"extraordinary kind" and the decision of the General Manager shall be final in
all such matters.
4.2. The respondents-FCI also denied the allegation of the appellant/
plaintiff regarding detention of 450 to 500 trucks at the receiving depots and
submitted that the said allegation was false and fabricated. It was further
stated that an enquiry was held in that regard and the appellant-contractor was
warned not to report any false compliant in future without verifying the facts.
The respondents-FCI further stated that the claim of the contractor for a sum
of Rs. 1,52,52,800/- along with interest was baseless, imaginary, arbitrary,
having no legal nexus.
4.3. The respondents-FCI further took the plea that the FCI was under
the process of calculating the exact amount of loss incurred by the FCI as
railway demurrage due to un-workmanlike performance of the contractor in
respect of transportation contract for transportation from Rail Head
Siding/FSD Dharmanagar to FSD Arundhutinagar, Agartala which was
awarded by FCI Regional Office, Shillong by a letter dated 30.04.2012. Thus,
by the written statement, the respondents-FCI denied the claim of the
appellant/plaintiff made in the original suit and prayed for dismissal of the suit
with costs.
5. Counterclaim of the respondents-FCI against the original
suit:
The respondents-FCI in their counterclaim took the plea that the
FCI is a Government of India undertaking primarily engaged for supplying of
food grains to maintain the public distribution system smoothly in each State
including the State of Tripura by engaging contractors for carrying of food
grains/allied materials etc. from railway sidings to various depots in the State
of Tripura.
5.1. It was pleaded in their counterclaim that the FCI had issued an
NIT on 13.09.2011 under a two-bid tendering system for appointment of
transport contractors for a period of 2(two) years for transportation of food
grains/sugar and also for loading and unloading of trucks at Food Storage
Depots from railway siding/FSD Dharmanagar to FSD Arundhutinagar,
Agartala. According to the respondents-FCI, the bid offered by the appellant-
contractor was accepted by the FCI and by a letter dated 30.04.2012, the FCI
appointed the appellant-contractor as a transport contractor for a period of
2(two) years for transportation of the food grains/sugar and other allied
materials. The period of contract was extended for a further period of 2(two)
months by the respondents-FCI. The respondent further took the plea that as
per agreement, the appellant-contractor was under obligation for placement of
adequate number of trucks in compliance of the indents issued in favor of the
appellant-contractor by the Siding/Depot in-charge, but for failure of clearing
the wagons, demurrage charges were being imposed by the railways on the
respondents-FCI and they had to incur huge loss.
5.2. It was further stated that the performance of the appellant-
contractor in carrying the food grains was not up to the mark, for which the
respondents-FCI had to pay railway demurrage w.e.f. May, 2012 to
September, 2013; October, 2013 to March, 2014 and April, 2014 to July, 2014
and the said demurrage charges could not be recovered from the bill of the
appellant-contractor due to a stay order passed by this Court.
5.3. It was stated that the respondents-FCI issued a letter on
22.12.2015 to the appellant-contractor explaining the grounds regarding the
demurrage suffered by the FCI for the above financial years on account of
failure to supply trucks for timely unloading of wagons at the siding, but after
several persuasions with the appellant-contractor, the performance of the
appellant-contractor was not improved, and due to their poor performance,
huge detention of wagons took place at Dharmanagar which caused serious
disruption to the Public Distribution Systems in the State of Tripura.
Consequently, the FCI had to pay huge amount of demurrage charges.
6. Reply of the appellant-contractor to the counterclaim:
The appellant-contractor contested the counterclaim by filing
written statement stating inter alia that the respondents-FCI had no cause of
action to file the counterclaim and as such, they are not entitled to get any
relief.
6.1. It was stated that there was no such provision for claiming
demurrage charges in the tender agreement. Further, as per the contract, there
was no clause for railway demurrage charges and the Division Bench of this
Court by a common judgment and order dated 03.10.2016 in WA No.25 of
2016 and other connected appeals held that FCI could not claim demurrage
charges in absence of any provision in the contract. So, the appellant-
contractor prayed for dismissal of the counterclaim filed by the respondents-
FCI.
6.2. To determine the suit, the Learned Commercial Court framed
four issues in the main suit filed by the appellant-contractor and four issues in
the counterclaim filed by the respondents-FCI.
7. Arguments on behalf of the appellant contractor:
On behalf of the appellant-contractor, Learned Counsel, Mr.
Kundan Pandey submitted that the appellant-contractor filed the suit seeking
recovery of money amounting to Rs.1,52,52,800/- along with interest for delay
in unloading of food grains beyond the stipulated period as per the tender
agreement.
7.1. It was further submitted that the Learned Court below at the time
of delivery of judgment, ignoring the evidence on record, only awarded a sum
of Rs.4,42,800/- with 9% interest per annum from the date of filing the main
suit till payment for which the appellant-contractor has been compelled to file
the appeal bearing RFA No.3 of 2024 for interference.
7.2. Learned Counsel for the appellant-contractor further submitted
that the appellant/plaintiff claimed Rs.800/- per day as detention charge per
vehicle from the respondent authority, which was not considered, although no
such amount in this regard was mentioned in the tender agreement. According
to Learned Counsel, as per road movement permit, a stipulated period of
3(three) days was fixed from the place of receipt of goods to the place of
delivery, but due to inadequate place of storage, the respondents-FCI did not
take any step for unloading of trucks, resulting which the appellant/plaintiff
had to incur huge amount of financial losses for payment of detention charges
of vehicles to the owners of the trucks beyond the stipulated period. The
respondent authority was informed on several occasions in this regard, but no
steps were taken by them to resolve the issue. Learned Counsel further
submitted that the respondents-FCI although filed written statement and
counterclaim, but in support of their contention, no documentary evidence was
adduced by the respondents-FCI.
7.3. Learned Counsel further submitted that on behalf of the
respondents-FCI, one Mr. Mukesh Pal, Divisional Manager, FCI appeared and
filed examination-in-chief in affidavit. His examination-in-chief in affidavit
was nothing but the replica of the written statement filed by the respondents-
FCI and that he had no personal knowledge about the subject matters in
dispute. Further, Learned Counsel submitted that before the Learned Trial
Court, the respective Area Manager who was posted on that relevant period of
time was not produced for examination by the respondents-FCI. Learned
Counsel, Mr. Pandey further submitted that there was no clause of demurrage
charges in the agreement.
7.4. It was further submitted that as stated by the respondents-FCI
regarding submission of inquiry report, no such report was produced before
the Learned Trial Court for marking of exhibit to substantiate the defence
case.
7.5. Learned Counsel further submitted that the appellant-contractor
filed the examination-in-chief in affidavit on his behalf and relied upon certain
documents which were marked as Exhibit Nos.1 to 72. Further, referring the
cross-examination of the said appellant-contractor, Learned Counsel submitted
that the respondents-FCI by cross-examination could not make any cloud to
disbelieve the case of the appellant-contractor. The said appellant as PW-1, in
course of his cross-examination submitted that they had to complete the work
of loading and unloading within 3 to 4 days of issuing requisition/indent and
after completion of such loading and unloading, next requisition is being
issued. The appellant, in his cross-examination further stated that as per
Clause-XVIII(a)(vi), he is entitled to get detention charges if such detention is
of "extraordinary kind" and in this connection, decision of General Manager is
final. It is further stated that the term "extraordinary kind" is not defined in the
agreement. The appellant/plaintiff approached to the Zonal Office of the FCI
for dispute resolution in terms of Clause-XX of the NIT. It is further stated
that the rate towards detention charges was not specified in the agreement.
Nothing more came out relevant from the cross-examination of the appellant-
contractor.
7.6. Learned Counsel for the appellant/plaintiff further submitted that
considering the evidence on record, Learned Trial Court, in respect of period
of detention beyond 3(three) days made a cut-off date of 6(six) days and
accordingly, made calculation without any basis for which the compensation
claimed by the appellant/plaintiff could not be properly ascertained by the
Learned Trial Court.
7.7. It was further submitted by Learned Counsel for the
appellant/plaintiff that in the main suit, certain documents namely Exhibit
Nos.40, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71 and 72 were produced
and duly proved by the appellant/plaintiff as exhibits regarding claiming of
payment of detention charge of the vehicles, but those exhibited documents
were not considered by the Learned Trial Court which resulted in improper
assessment of the compensation claimed by the appellant/plaintiff.
Finally, referring the evidence on record as well as the documents
relied upon by the appellant/plaintiff, Learned Counsel urged before this court
to allow the appeal filed by the appellant/plaintiff by setting aside the
judgment dated 14.12.2023 and decree dated 19.12.2023 passed by Learned
Judge, District Commercial Court, West Tripura, Agartala in Commercial Suit
No.11 of 2016 and Commercial Suit No.20 of 2016 and also to pass a decree
for recovery of Rs.1,52,52,800/- against the respondents-FCI with interest.
7.8. Further, Learned Counsel submitted that since there was no
clause of "demurrage" in the agreement and since this Court in WA No.25 of
2016 held that the FCI cannot claim any demurrage charges in absence of any
provisions in the contract so, the counterclaim of the respondents-FCI cannot
be sustained as per law.
7.9. Reliance was placed upon one judgment of the Hon'ble Supreme
Court of India in Food Corporation of India & Ors. v. Abhijit Paul1, wherein
in para No.30, Hon'ble the Apex Court has observed as under:
"30. We have every reason to believe that the Corporation,
statutorily obligated to procure and distribute foodgrains across the
nation, enters into contracts depending on the services it requires.
These contracts naturally vary depending on the needs and purposes
of the Corporation. With the aid of the provisions in the handling and
transport contract from 2010, we are able to understand the intention
of the parties while entering into the present road transport
contracts. As the present contracts do not involve the task of loading
and unloading of foodgrains from the railway wagons as a part of the
contractors' responsibility, there is no clause enabling the recovery
of demurrages from them by the Corporation. Thus, our
interpretation of the expression "charges", as exclusive of liability
for demurrages, stands confirmed."
Referring the same, Learned Counsel for the appellant/plaintiff
submitted that the principle of the said judgment also supports the case of the
present appellant-contractor.
8. Arguments made on behalf of the respondents-FCI:
On behalf of the respondents-FCI, Learned Counsel, Mr. Ratan
Datta submitted that the suit filed by the appellant/plaintiff was not
maintainable.
8.1. Learned Counsel further submitted that in the NIT dated
13.09.2011 no period was mentioned regarding claiming of detention charges
of trucks and as such, the appellant-contractor was not entitled to claim for
any detention charge of the vehicles. Rather due to non-supply of trucks by the
appellant-contractor on time, the respondents-FCI had to suffer huge financial
losses and had to pay railway demurrages which are attributable to the
appellant-contractor. Learned Counsel for the respondents-FCI submitted that
the Learned Commercial Court without appreciating the evidence on record,
(2023) 15 SCC 40
has partly decreed the suit in favour of the appellant/plaintiff, rejecting the
counterclaim of the respondents-FCI. It was further submitted that admittedly
due to some laches, no documentary evidences were produced by the
respondents-FCI but, the case of the appellant-contractor does not comes
under the purview of "extraordinary kind" as per the tender agreement. As
such, the appeal preferred by the appellant-contractor is liable to be dismissed.
8.2. Learned Counsel, Mr. Datta further submitted that in this case,
the appellant-contractor was under obligation to supply trucks as per the
indents issued by the FCI from time to time. However, the appellant-
contractor failed to do so, which resulted in huge detention of wagons at the
railway side causing disruption of Public Distribution System in the State. Due
to such poor performance of the appellant-contractor, the respondents-FCI had
to pay huge amount of railway demurrage charges. Learned Counsel
submitted that as per the tender agreement, the appellant-contractor was liable
to compensate the respondents-FCI and the FCI was also entitled to recover
such compensation. Finally, Learned Counsel for the respondents-FCI prayed
before this court to allow the appeal filed by the respondents-FCI and to set
aside the judgment and decree passed by the Learned Trial Court and to grant
a decree in favour of the respondents- FCI.
9. Analysis of evidence on record and observations:
We have heard both the sides at length and also perused the case
record including the plaint, the written statement and the documents submitted
by the parties as well as the judgment and decree delivered by Learned Trial
Court.
9.1. As already stated, Learned District Commercial Court in the main
suit as well as in the counter claim framed issues and decided all the issues
after elaborate discussions. However, in the present appeal filed by the
appellant-contractor Learned Counsel for the appellant-contractor only
confined his argument regarding fixing of cut-off dates as well as non-
consideration of some exhibited documents.
On the other side, Learned Counsel for the respondents-FCI in
addition to his reply against the submissions made by Learned Counsel for the
appellant-contractor confined his argument only to the extent that certain
relevant documents were not produced and proved in this case on behalf of the
respondents-FCI. So, let us confine ourselves to decide those points as raised
by Learned Counsel for the parties.
9.2. Admittedly, in this case, the initial tender for carrying of goods
was for a period of 2(two) years w.e.f. 01.05.2012 to 30.04.2014 which was
later on extended for a further period of 2(two) months. The appellant-
contractor claimed that as per the tender agreement, he has duly supplied
trucks for transportation of food grains/sugar from Dharmanagar to Agartala
from time to time. However, due to lack of storage space, the trucks could not
be unloaded at the respective depots of FCI for which the appellant-contractor
had to detain the trucks for period ranging from 4 days to 20 days on different
occasions. Consequently, the appellant-contractor claimed detention charges
beyond three days at the rate of Rs.800/- per truck along with interest and thus
claimed a total sum of Rs.1,52,52,800/- by filing the suit.
To substantiate the claim on behalf of the appellant-contractor, he
examined himself as PW-1 and relied upon some documents which were
marked as Exhibit Nos.1 to 72.
9.3. On behalf of the respondents-FCI, one witness, Sri Mukesh Pal
was examined as DW-1. However, no documentary evidences were adduced
by the respondents-FCI to contest the suit filed by the appellant-contractor.
In the counterclaim also, on behalf of the respondents-FCI, said
Mukesh Pal was examined as PW-1 and he relied upon certain documentary
evidences which were marked as Exhibit No.1(i) to 1(xxiv) and Exhibit No.2
to 6.
9.4. The appellant-contractor in his examination-in-chief tried to
support his version as set out in the plaint. During his cross-examination by
the respondents-FCI, he stated that as per the NIT, food grains were to be
transported from food go-down, Dharmanagar to food go-down,
Arundhutinagar and that the trucks were placed for carrying of food grains as
per the requisition of respondents-FCI. The appellant-contractor further stated
that as per Clause-XVIII(a)(vi), the contractor is entitled to get detention
charges if such detention is of "extraordinary kind" and the decision of the
General Manager, in this regard, was final. However, he also stated that the
term "extraordinary kind" was not defined in the agreement. Additionally, the
appellant-contractor stated that the rate towards detention charges was not
specified in the agreement and he acknowledged the receipt of letter dated
22.08.2013 (Exhibit No.33). No further material facts emerged from his cross-
examination.
9.5. Similarly, on behalf of the respondents-FCI, as already stated one
Mr. Mukesh Pal was examined as DW-1. He, in his examination-in-chief in
affidavit asserted the same facts as mentioned in the written statement as well
as in the counterclaim filed by the respondents-FCI. However, during cross-
examination by the appellant-contractor he stated that he was appointed as
Manager, FCI in the year 2005 and his first posting was at Muradabad, Uttar
Pradesh. He further stated that he did not know the definition of the term
"cause of action" and also expressed his inability to state who were holding
the post of Divisional Manager/Area Manager at Agartala during the period
from 2012 to 2016. He further deposed that he did not have any personal
knowledge regarding the disputes that arose during the subsistence of contract
during the period from 01.05.2012 to 30.04.2014. DW-1 further stated that the
extension beyond the period of agreement is/was being granted due to non
appointment of new contractor in time. The period of contract involved in the
suit ended on 30.04.2014.
DW-1 admitted that he did not produce the original agreement in
dispute. He further admitted that he has not submitted/furnished the break up
supported by documents to show as to how the respondents-FCI has suffered
loss to the tune of Rs.1,01,00,000/-.
DW-1 also could not say anything regarding the judgment dated
04.12.2015 rendered by this Court in WP(C) No.503 of 2012 and WP(C)
No.505 of 2012 and stated that the appellant-contractor had addressed several
communications to the FCI informing that the loaded trucks were stationed
beside the FCI go-down and accordingly, requested the FCI to arrange
unloading of goods from the truck. He volunteered that on receiving such
letters, the then Area Manager visited the go-down and enquired the matter,
and found the said information to be untrue. However, no such inquiry report
was submitted before the Court and the then Area Manager was also not
examined as witness. It was also stated that the matter in dispute was not
referred to the Grievance Cell Redressal Forum by the FCI.
He further stated that there was no clause in respect of demurrage
charges in the agreement.
In his cross-examination, DW-1 was confronted with a letter
dated 30.12.2013 issued by the then Area Manager namely, B.G. Bhuiya
where it was admitted that the appellant/plaintiff being contractor has
performed satisfactorily for the financial year 2012-13.
It was also stated that nothing was mentioned in the NIT or the
tender agreement in regard to the involvement of railway; and the road
movement permit in favour of the appellant-contractor was issued by the
respondents-FCI. DW-1 further admitted in his cross-examination that the FCI
did never lodge any case either civil or criminal against the appellant-
contractor during the subsistence period of agreement. The bills submitted by
the appellant-contractor contained the particulars such as date of receipt and
dispatch, as well as the delay caused in delivery of the goods and the
respondents-FCI raised no objection in regards to the contents of such
particulars.
DW-1 was again confronted with the letter dated
12.07.2013(Exhibit No.21) issued by the General Manager where he admitted
the contents of the letter.
9.6. At the time of hearing, being asked by this Court, Learned
Counsel for the respondents-FCI fairly submitted that the NIT was issued by
the department and in the NIT no such period was mentioned regarding
detention of trucks. Further, on being asked, Learned Counsel for the
respondents-FCI could not satisfy this Court as to why the respondents-FCI
issued road movement permits in favour of the appellant-contractor without
having any sufficient space/go-down for unloading of the goods carried out by
the appellant-contractor through trucks.
9.7. Learned Trial Court, in para No.26 of the judgment, considering
the evidence on record of DW-1 came to the finding that there was delay in
unloading of trucks of the appellant/plaintiff at the destination point of FCI.
Further, in para Nos.27 and 28, regarding "whether such detention is of
extraordinary kind", Learned Trial Court referred Clause-XVIII(a)(vi) of the
tender agreement which says that a contractor is not entitled to any
compensation in respect of detention of trucks at go-down or any other
loading and unloading points unless such detention is of "extraordinary kind".
In para No.28, Learned Court below described Clause (B) and in
para No.29, Learned Court below referred the exhibited documents bearing
Exhibit Nos.8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26,
29, 30, 32, 34, and 36 and also referred other exhibits bearing Nos.28, 41, 42,
43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57 and 58 and came to the
observation that on the ground of shortage of storage space in the go-down of
FCI, there may be a reasonably 1 to 3 days delay in unloading of trucks and
for such delay the appellant-contractor cannot be allowed to claim any
detention charge and such delay cannot be said to be extraordinary. So,
regarding the further delay of next three days, excluding the period prescribed
under road movement permits issued by the Depot in-charge, FCI, Court
below held that the appellant-contractor cannot be allowed to complain
regarding unloading of trucks at the destination point for the shortage of
storage space. It held that as per Exhibit No.21 there was shortage of storage
capacity as well as stranding of large numbers of trucks. Learned Trial Court
further came to the observation, the appellant-contractor being a transporter of
food grains might have had knowledge of such delay because at the unloading
point, there ought to have trucks of other contractors also.
In para No.30, the Learned Trial Court gave the following
observation:
"30. The tender agreement nowhere defined the term
"extraordinary". When both the parties intentionally agreed for
detention charge only in case of extraordinary delay then both the
parties carried the idea that delay in unloading for some days was
permissible considering the size and location of the unloading point.
Here in the present case maximum three days delay can be
allowed(excluding the period prescribed under road movement
permits issued by the Deport in-charge, FCI) to be called as non-
extraordinary. But after such days of delay, the defendant/FCI cannot
be allowed to take the plea of Clause-(xviii)(a)(vi) of the tender
agreement because for each day's engagement of trucks the
plaintiff/Contractor was supposed to pay charges to the truck
owners. So from the date of despatch till next six days there cannot
be any extraordinary detention. However beyond the period of six
days if there is any further delay in unloading of trucks then the same
can undoubtedly be termed as extraordinary detention. So, the
plaintiff/Contractor here is surely entitled to get compensation for
any delay in unloading of trucks beyond the period of six days. The
plaintiff/Contractor claimed Rs. 800/- per day for detention of every
loaded truck at the destination point. But the plaintiff did not produce
any documentary evidence regarding payment of such charge. It is
presumed that in 2012-2013 there ought to have been detention
charge of Rs.600.00 per day for detention of every loaded truck and
so here the plaintiff/Contractor is entitled to get Rs.600.00 per day
for detention of every loaded truck."
9.8. Thus, it appears to us that the Learned Trial Court determined
detention charges at the rate of Rs.600/- per day. Regarding this amount,
Learned Counsel for the appellant/plaintiff, at the time of hearing did not raise
any dispute, rather fairly submitted that the appellant-contractor agreed with
the said amount. However, the appellant-contractor raised concern about
determination of six days as cut-off days for detention of trucks for clearing of
loaded goods.
In this regard, we have also gone through the exhibited
documents.
From Exhibit No.21, i.e. the letter dated 12.07.2013 issued by
General Manager, Regional Office, NEFR, Shillong to the Director of Food,
Civil Supplies & Consumer Affairs it appears that by the said communication,
the respondents-FCI admitted that as the FCI has increased its induction for
the State of Tripura since last few months, there is a problem of storing for the
increased food grains as the FCI does not have enough storage capacity and
the matter has been aggravated due to on-going evacuation of stock in
Hapania. For the sake of convenience, let us reproduce hereinbelow the
communication dated 12.07.2013:
THE FOOD CORPORATION OF INDIA
REGIONAL OFFICE::NEFR::SHILLONG
No: G.5/NEFR/Genl.Corresp/13 Dated: 12.07.2013
The Director,
Food, Civil Supplies & Consumer Affairs,
Gopvt.of Tripura,
Agartala
Sir,
The FCI has increased its induction for the State of Tripura
since last few months. There is problem of storing for the increased
foodgrains as FCI does not have enough storage capacity. The
matter has been aggravated due to on-going evacuation of stock in
Hapania.
As per report, about 450 trucks are standing today at
different depots in Agartala Complex. More stocks are in the pipeline
and are likely to reach Agartala Complex and Chandrapur very soon.
The number of stranding trucks will, therefore increase in coming
few days.
The contractors namely Abhijit Paul and Subhajit Paul have
complained that large numbers of their trucks are standing in
Agartala since last many days. The Area Manager, Agartala is not in
a position to unload the stocks.
It is therefore, requested to kindly immediately lift the State
requirement of stock for the month of August' 13, so that space is
created in the godown for unloading of the stranded trucks and
stocks in the pipeline.
Yours faithfully,
-Sd illegible"
From the said communication, it is very much clear that the
respondents-FCI themselves admitted that they had no sufficient storage
capacity to keep the food grains. So, it is quite surprising as to how the
respondents-FCI, knowing fully that they had no capacity to unload the trucks
at the respective station, issued road movement permits in favour of the
appellant-contractor from time to time and rather, took the plea that the
appellant-contractor failed to supply the trucks for carrying of goods. This
argument of the respondents-FCI cannot be accepted as valid.
Further, from other exhibited documents relied upon by the
appellant-contractor, it appears that on many occasions, vide communications
dated 01.08.2012, 07.08.2012, 14.08.2012, 21.08.2012, 23.08.2012, 25.08.
2012, 20.11.2012, 30.04.2013, 31.05.2013, 15.06.2013, 25.06.2013,
29.06.2013, 01.07.2013, 15.07.2013, 16.07.2013, 17.07.2013, they have
requested the respondents-Area Manager for making arrangements for
unloading of sugar-loaded trucks. Those letters were marked as exhibits
before the Learned Trial Court by the appellant-contractor. Moreso, by letter
dated 20.07.2013 (Exhibit No.25), the appellant-contractor requested the
respondents-FCI not to issue any indent till the situation improves and urged
the department to utilize the vacant space in go-down at Dharmanagar to avoid
the detention of wagons. Subsequently, by another communication dated
25.07.2013, the appellant-contractor raised its demands towards detention
charges by enclosing their bills which were not considered by the respondents-
FCI.
Thus, after going through the exhibited documents and the
evidence on record, it appears to us that the delay beyond 3(three) days for
detention of trucks at the respective depot was entirely attributable to the
respondents authority.
Admittedly, the term "extraordinary kind" is not defined or
prescribed in the agreement. However, it was the admitted position from the
side of the respondents-authority that they issued road movement permits for
carrying of food grains fixing 3(three) days as limit, but it has been found
from the evidence on record that the loaded trucks were detained at the
respective depot from 4 to 20 days on different dates because of which the
appellant had to pay additional amount as hiring charges of the vehicles. The
respondents-FCI by their act and conduct also admitted that they had no
sufficient space/go-down for unloading of loaded goods and in this regard,
Learned Counsel for the respondents-FCI in course of hearing of argument
failed to satisfy this Court by placing any material to disbelieve the said facts.
Thus, the delay which occurred due to inaction of the respondents-FCI can be
satisfactorily termed as "extraordinary kind".
Thus, it appears that the Learned Trial Court rightly decided all
the issues but the observation of the Learned Trial Court fixing cut-off date for
6(six) days i.e. 3(three) days beyond the initial 3(three) days, was not proper,
which should be limited only for 3(three) days and in our considered view, the
appellant-contractor shall be entitled to claim detention charges for the delay
beyond the initial 3(three) days as per calculation made by the Learned Trial
Court below in the said judgment and decree.
9.9. In course of hearing of arguments, Learned Counsel for the
appellant-contractor drawn the attention of this Court that Learned Trial Court
although exhibited some documents which were marked as exhibit Nos.27, 59,
60, 62, 63, 66, 67, 68, 69, 70, 71, 28, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51,
52, 53, 54, 55, 56, 57, and 78 but those documents were not considered by the
Learned Trial Court at the time of delivery of the judgment and decree
resulting which the Learned Trial Court has determined a very lesser amount
of compensation in favor of the appellant-contractor. Learned Counsel for the
appellant-contractor further submitted that if those exhibited documents are
not taken into consideration, then the appellant-contractor shall suffer huge
financial losses.
9.10. As already stated, Learned Counsel for the respondents-FCI in
course of hearing of argument has totally failed to project their defence, to
rebut the claim of the appellant-contractor and as such, we are of the
considered view that those exhibited documents needs to be re-considered by
the Learned Trial Court.
9.11. Furthermore, regarding demurrage charges, there was no such
clause in the agreement, and in the common judgment and order of this Court
dated 03.10.2016 in W.A. No. 25 of 2016 it was held that FCI could not claim
demurrage charges in absence of provision in the contract, and the same
remained unchallenged. So, the respondents-FCI is not entitled to claim
"demurrage charges" from the appellant-contractor.
In addition to that, in the light of the judgment of the Hon'ble
Supreme Court of India as referred by Learned Counsel for the appellant-
contractor (supra), it is clear that there is no scope to fasten the liability of
demurrage upon the appellant-contractor.
9.12. Moreover, the witness of the respondents-FCI, in course of his
cross-examination very specifically admitted that nothing was mentioned
either in the NIT or in the tender agreement regarding involvement of railway
and also regarding claiming of demurrage charges. As such, the question of
claiming demurrage charges by the respondents-FCI cannot arise and it does
not seem to be a sound proposition to sustain the plea of demurrage in this
case. So, the respondents-FCI are also not entitled to claim any demurrage
from the appellant-contractor.
9.13. In the result, the appeal filed by the appellant-contractor bearing
RFA No.03 of 2024 is hereby partly allowed and the appeals bearing RFA
No.08 of 2024 and RFA No.09 of 2024 filed by the respondents-FCI is hereby
dismissed accordingly.
The judgment dated 14.12.2023 and decree dated 19.12.2023
delivered by Learned Judge, District Commercial Court, West Tripura,
Agartala is hereby partly interfered with. The matter is remanded back to the
Learned Trial Court for the limited purpose of re-determining the amount of
detention charges, fixing cut-off days only for 3(three) days instead of 6(six)
days as determined by Learned Trial Court in para No.30 of the judgment
(wherein it was observed that "So from the date of despatch till next six days
there cannot be any extraordinary detention") and also in para No.32 of the
judgment and, also to consider the exhibited documents bearing Exhibit Nos.
27, 59, 60, 62, 63, 66, 67, 68, 69, 70, 71, 28, 41, 42, 43, 44, 45, 46, 47, 48, 49,
50, 51, 52, 53, 54, 55, 56, 57, and 78 and thereafter to deliver a fresh judgment
within a period of 4(four) months from the date of receipt of a copy of this
judgment and order.
With this observation, the aforesaid appeals are disposed of on
contest with costs in favor of the appellant-contractor.
Send down the records.
Prepare decree
All pending application(s), shall stand closed.
(BISWAJIT PALIT, J) (M.S. RAMACHANDRA RAO, CJ)
Snigdha
SNIGDHA Digitally signed by
SNIGDHA DAS
DAS Date: 2026.04.09
16:12:12 +05'30'
