RSA-3113-2016 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

RSA-3113-2016 (OM)
Date of decision: 02.05.2019.

Confed District Officer, Gurgaon(henceforth called Gurugram)

…Appellant

Versus

Mukesh Kumar and others
…Respondents

CORAM: HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. Pankaj Jain, Advocate, and
Mr. Karan Rana, Advocate,
for the appellant.

Mr. Dhiraj Chawla, Advocate,
for respondent No.1.

****

JAISHREE THAKUR, J.

CM-8377-C-2016

This is an application that has been filed under Section 5 of the

Limitation Act seeking condonation of delay of 66 days in filing the appeal.

For the reasons mentioned in the application, the same is allowed.

Delay of 66 days in filing the appeal is condoned.

RSA-3113-2016

1. This regular second appeal has been preferred by defendant No.1-

appellant against the judgment and decree dated 31.01.2014, passed by Civil Judge

(Jr. Divn.), Gurgaon whereby the suit filed by the plaintiff was partly decreed as

also the judgment and decree dated 24.12.2015 of the Lower Appellate Court

whereby the appeal filed by the appellant has been dismissed.

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2. In order to avoid confusion, the parties hereinafter are being referred

by their original position in the suit i.e. the respondent as plaintiff and the appellant

as defendant.

3. Brief facts of the case are that; plaintiff Mukesh Kumar Saini

(respondent No.1 herein) was engaged in the business of transport under the name

and style of M/s Shiv Transport Company at Bahadurgarh, District Jahjjar. The

plaintiff being the highest bidder was allotted the contract of transportation of

APL/BPL/AAY/MDM schemes of wheat and rice for the financial years 2008-09,

2009-10 and 2010-11 by the defendants for the Sub Divisions, Gurgaon, Sohna

and Pataudi. Release Order No. 46-47 dated 7.10.2010 was received by the

plaintiff from defendant No.3 for loading wheat and rice and, therefore, the

plaintiff sent his vehicles to Sohna Mandi for loading the grains, however, the

storekeeper of defendant No.1 told the plaintiff that the stock will be loaded after

inspection and there was time in the R.O. upto 13.10.2010 to do so. As the plaintiff

was not allowed to load wheat/rice, he addressed a letter on 7.10.2010 itself to

defendant No.1 in this regard, but to no avail. On 19.10.2010, defendant No.1

intimated the plaintiff to load 13165 quintals of wheat and rice, so the plaintiff sent

10 of his vehicles but again no grain was loaded on his vehicles. On 25.10.2010,

the storekeeper of defendant No.1 told the plaintiff that he has been telephonically

directed by defendant No.1 not to load the vehicles of the plaintiff and writing in

this regard was issued by the storekeeper to the plaintiff. Defendant No.1 issued

three letters dated 23.10.2010, which were received by the plaintiff on 25.10.2010,

levelling allegations against the plaintiff. Fearing that defendant No.1 was seeking

to cancel his contract, a suit was filed seeking mandatory and permanent injunction

inter alia restraining the defendants from cancelling his contract, to make the

payment of the security amount as well as the transportation charges for the year

2009-10, pay transportation charges to the plaintiff for the financial year 2009-10

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along with interest thereon from the due date till payment.

4. On notice, defendants No. 1 to 4 appeared and filed their written

statement taking preliminary objections regarding maintainability, cause of action,

locus standi, estoppel, concealment of material facts and on merits denied the

averments made in the plaint. It was pleaded that defendant No.1 under the

guidelines of the Haryana Government to supply food grains to fair price shops,

depot holders in Gurgaon District at their doorsteps, had invited tenders for

transportation of the food grains and tender of the plaintiff was accepted for a

period of 01.08.2010 to 31.03.2011. An agreement was executed between the

plaintiff and District Confed Office, Gurgaon. It has been further submitted that on

01.10.2010, the plaintiff was given 70 quintals of wheat and 13 quintals of rice by

defendant No.2 for delivery to the agencies Centre. During transportation of those

grains, 3 quintals (6 kattas) loaded in truck No. HR-63A-3451 was sold by the

driver of the plaintiff with full knowledge, notice and connivance of the plaintiff

and FIR No. 231 dated 01.10.2010 under Section 406 IPC, at Police Station Sector

10-A, Gurgaon was lodged by one Suresh Kumar in this regard. It was further

pleaded that in spite of sending release order to the plaintiff on 07.10.2010 by

defendant No.2, the plaintiff did not lift the food grains from the concerned point

and despite reminders given on 18.10.2010 and 21.10.2010, the plaintiff failed to

transport the food grains. The plaintiff was also provided 25086 quintals of wheat

for the month of October 2010, and 22020 quintals of wheat for the month of

November 2010 for transportation to various destinations but the plaintiff could

lift only 3785.25 quintals of wheat upto 22.10.2010 and failed to carry the

remaining food grains. The plaintiff was given two notices dated 13.10.2010 and

21.10.2010 to comply with the terms and conditions of the agreement but the

plaintiff violated the terms and conditions of the agreement. In order to avoid

further delay in delivery of food grains to the depot holders and to avoid loss to the

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defendants, the defendants allotted the transportation of the food grains to other

three separate contractors for the period 10.11.2010 to 31.10.2010. The plaintiff

has caused loss by violating the terms conditions of the agreement, therefore,

the security amount of plaintiff stood forfeited and the contract of supply of wheat

and rice to Sub Divisions of Gurgaon, Sohna and Pataudi stood cancelled and

terminated on 25.10.2010 by the order of Deputy Commissioner, Gurgaon before

filing of the present suit. While denying the rest of the averments made in the

plaint, a prayer was made to dismiss the suit with costs.

5. Defendant No.5 adopted the written statement filed on behalf of

defendants No. 1 to 4. No replication was filed. From the pleadings of the parties,

following issues were framed by the trial Court :-

“1. Whether the plaintiff is entitled to a decree for mandatory
injunction directing the defendants not to cancel the contract
of supply of wheat and rice under APL/BPL/AAY/MDM
Schemes to Sub Divisions Gurgaon,Sohna and Pataudi for the
financial year 2010-2011 and not to give the said contract to
some other person instead of plaintiff in any manner
whatsoever and to make the payment of the security amount
as well as transportation charges to the plaintiff for the
financial year 2009-2010 along with interest thereon from the
date of due till payment, by declaring the letters dated
23.10.2010 as illegal, null and void and not binding on the
plaintiff ? OPP

2. Whether the plaintiff is entitled to a consequential relief of
permanent injunction on the grounds as alleged? OPP

3. Whether the plaintiff has no cause of action or locus standi to
file the present suit? OPD

4. Whether the suit is not maintainable in the present form?

OPD

5. Whether the plaintiff has concealed the real and true facts
from the Court? OPD

6. Whether the plaintiff is estopped from filing the present suit

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by his act and conduct? OPD

7. Relief.”

6. The plaintiff in order to prove his case examined Mukesh Kumar as

PW-1 and Bhanwar Pal Singh as PW-2. After tendering certain documents

plaintiff closed his evidence. On the other hand, the defendants have examined

Devender Kumar Khandelwal as DW-1 and Ct. Virender as DW-2. After tendering

certain documents, defendants closed their evidence. No rebuttal evidence was led

by the plaintiff.

7. The Lower Court, on appreciation of the evidence, partly decreed the

suit and the order dated 25.10.2010 vide which the security amount for the year

2010-11 was forfeited and the order blacklisting the plaintiff was set aside, being

violative of the principles of natural justice. The defendants were directed to give a

reasonable opportunity of hearing to the plaintiff and to pass an order thereafter.

The appeal preferred by the appellant and respondent No. 2 herein has been

dismissed by the lower Appellate Court while upholding the judgment and decree

passed by the trial Court. Aggrieved against the said orders, the instant second

appeal has been filed.

8. Learned counsel appearing on behalf of the appellant herein contends

that both the Courts below have erred in setting aside the order dated 25.10.2010

whereby the security amount deposited by the plaintiff was forfeited and he was

blacklisted with a direction that a reasonable opportunity be afforded to the

plaintiff before blacklisting him. It is argued that the plaintiff has failed to comply

with the terms and conditions of the agreement as he did not lift quantities of

wheat /food grains within the time specified in the release order which resulted in

the appellant being constrained to hire three separate contractors for the period

from 10.10.2010 till 31.1.2010. It was on account of his failure to perform under

the contract that the same was cancelled and terminated w.e.f. 23.10.20. It is also

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submitted that a suit for mandatory injunction would not be maintainable after the

contract has been terminated.

9. Per contra, learned counsel appearing on behalf of the respondents

herein contends that there is a concurrent finding of fact in his favour to the extent

that no reasonable opportunity of hearing was given before forfeiting the security

amount of ` 8,50,000/- and blacklisting the respondent from working with the

appellant in future. It is also argued that both the Courts below have only passed an

order to the extent that fair opportunity be given to the respondent before any

adverse orders are passed.

10. I have heard learned counsel for the parties and have gone through

the judgments and decree passed by the Courts below.

11. There is no doubt about the fact that in the agreement entered into

between the parties, the respondent herein was to supply vehicles to the appellant

to transport food grains to various shops and depots under a scheme that had been

initiated by the Haryana Government. The respondent set up a claim that he was

performing his work diligently, however, it was the appellant who did not confirm

to the release orders and did not load the food grains on to his trucks / vehicles.

This was done in order to harass him so that the contract could have been awarded

to someone else, which allegations have been denied by the appellant in its written

statement filed. It was alleged that on account of theft of the food grains during

transportation and incapability of the respondent in fulfilling the terms of the

contract, that the contract was terminated, a notice dated 23.10.2010 regarding

forfeiture of the security amount as well as blacklisting was issued. Both the

Courts below while considering the arguments and the evidence on the record,

noted that the appellant herein had issued three letters dated 23.10.2010 which

were served upon the respondent on 25.10.2010 and it was on the same day the

contract was terminated. These notices are available on the record as mark 5 to

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Mark 7 and admitted by the appellant as Ex. D-2 and D-3, which pertain to notices

given by the appellant to the respondents calling upon him to explain why his

contract should not be cancelled and notice stating that security amount had been

forfeited for the year 2010-11 while declaring him to be blacklisted. The Courts

below taking note of clause 14 of the terms conditions of the agreement entered

into between the parties, which provided that the Committee shall be competent to

cancel the agreement at any time after giving opportunity, concluded that there was

no adequate opportunity given. Notice dated 23.10.2010 was served upon the

respondent on 25.10.2010 itself and that very day itself the contract was

terminated. The Courts below set aside the order dated 25.10.2010 by which order

the security amount for the year 2010-11 was forfeited and he was declared as

blacklisted being violative of the natural justice. The argument as raised by the

counsel appearing on behalf of the appellant that the suit was not maintainable as

the contract stood terminated and there is no challenge to the same, is not

maintainable since both the Courts below have only allowed the prayer of the

respondent to the limited extent of deciding the issue of refund of security and

blacklisting. There is no such decision taken allowing the respondents to continue

with the contract over and above the specified period.

12. Therefore, finding that no substantial question of law arises in the

instant regular second appeal, the same is dismissed.

02.05.2019 (JAISHREE THAKUR)
Satyawan JUDGE

Whether speaking/reasoned Yes.
Whether reportable No.

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