Steel Authority of India Ltd. vs Ashok Industries

N.S. Singh, J.—The judgment and decree dated 5.6.92 and the order dated 17.6.92 amending the earlier decree of 5.6.92 passed by the learned Assistant District Judge, Tinsukia in Money Suit No. 120 of 1986 is the subject matter under challenge in this First Appeal No. 57 of 1992 preferred by the Defendant-Appellant, namely, Steel Authority of India Ltd. as against the Plaintiff-Respondent, namely, M/s. Ashok Industries.

The facts of the case in a short compass are as follows:

The Plaintiff, M/s. Ashok Industries instituted a Money Suit being M.S. No. 16 of 1982 in the Court of the learned Assistant District Judge, Dibrugarh which was later on transferred to the file of the Assistant District Judge, Tinsukia bearing Money Suit No. 122 of 1988 as against the Defendant, Appellant herein, namely Steel Authority of India Ltd. for a Money Decree to the tune of Rs. 9,48,950/- by contending inter alia, that since about April, 1976 and till 30th June, 1979, the Plaintiff being appointed and engaged by the Defendant duly acted for and rendered services to the Defendant as the Defendant''s handling and storage contractor at Makum in the State of Assam for handling and storing of all iron and steel materials despatched from the Defendant''s plants at Rourkela,''Bhilai and Durgapur as also from Bokaro Steel Limited and India Iron and Steel Company Limited. On certain terms and conditions as stated in paragraph 3 of the plaint as agreed to by both the parties through a written agreement dated 28.4.76 lying with the Defendant. According to the Plaintiff, the Plaintiff would be entitled to be reimbursed by the Defendant in the event of the Plaintiff''s carrying materials from any place other than the nearest railway head and/or railway siding at Makum on account of costs of such carriage and the Plaintiff also would be entitled to receive from the Defendant and the Defendant would be liable to pay all costs of stock verification to be carried out at the Plaintiff''s yard and during the period between 16.5.79 and 1.7.1979, the Plaintiff duly submitted several bills to the Defendant on account of such handling and storage charges, the aggregate value whereof is Rs. 15,823.70, and like-wise during the period between 13.6.79 and 1.8.79 the Plaintiff further submitted to the Defendant several bills of an aggregate value of Rs. 6,281.80 on account of costs of carriage of materials from Tinsukia to Makum and the same were duly accepted by the Defendant without raising any objection thereto. It is also the case of the Plaintiff that a further aggregate sum of Rs. 49, 211.05 is to be paid by the Defendant in respect of stock verification as the connected bills were duly accepted by the Defendant, but the Defendant wrongfully and illegally and without being entitled to deduct, a sum of Rs. 17,272.08 on account of alleged shortage of Pig Iron and further a sum of Rs. 35,168.47 on account of shortage of other steel materials from the various bills submitted by the Plaintiff had been deducted. As per terms of the agreement between the parties, the Plaintiff duly furnished security deposit with the Defendant to the tune of Rs. 2 lakhs in or about May, 1976 and by reason of expiry and/or termination of the contract on and from 1.7.1979, the Plaintiff also became entitled to and the Defendant became liable to refund the said security deposit of Rs. 2 lakhs together with interest thereof at the rate of 18% per annum from the date of furnishing such security deposit till full realisation thereof. According to the Plaintiff, when the question of extension of validity of the consignment Agency Agreement was raised, under the Plaintiff''s letter dated 28.11.78, expressing the Plaintiff''s consent for extension of validity of their Consignment Agency agreement for the period from 1.1.1979 for upto one year, but not less than six months the Plaintiff wrote letter by expressing and rendering the following words to the Defendant:

But we would like to point out that it would not be economical for us to operate unless an average of at least 1500 M/T per month is received in our yard, which we request you to kindly bear in mind at the time of renewal of our contract.

The said offer of the Plaintiff was kept valid till 31.12.1978 for acceptance of the Defendant and the Defendant accordingly accepted it vide letter of 4.1.79 issued by the Zonal Manager of the Steel Authority of India Ltd., thus extending the validity of the agreement for a further period of six months from 1.1.79 to 30.6.79 on the existing terms and conditions and the rates. The further case of the Plaintiff is that since the Defendant failed to keep the supply of minimum quantity of steel to the tune of 1500 M/T per month on the average and made the Plaintiff to incur expenses for handling that quantity of steel, the Plaintiff is entitled to the amount they spent, on the account to the tune of Rs. 2,38,653.90 as handling commission in terms of the related bills of 10.7.79 as the Plaintiff was delivered only 1044.870 M/T of steel instead of 9000 M/T of Steel during the entire period of extension of six months. The Plaintiff went on to state that an interest @ 18% per annum from 10.9.79 till 31.3.82 and further interest @ 18% per annum from 1.4.82 till the date of payment of the aforesaid amount is to be paid by the Defendant. Making all these statements, the Plaintiff claims a Money Decree for Rs. 9,00,950/- initially, but later on, the Plaintiff claims Money Decree for Rs. 9,48,950/-.

The case of the Plaintiff was contested by the Defendant by contending inter alia, that the Plaintiff''s suit is not maintainable and the same is barred by limitation ad the claim of the Plaintiff made in the plaint is vague, some of it are fictitious and as such the Plaintiff is not entitled for any relief. According to the Defendant, there is no such clause as mentioned in paragraph 4 of the plaint and no claim can be made on this account; and the accounts were not running, continuous and current account and it is not known what bills were submitted without specification etc. and as such the Plaintiff is not entitled to any amount on account of costs and carriage of materials from Tinsukia to Makum as there was no such clause in the agreement for such entitlement as alleged by the Plaintiff. It is also the case of the Defendant that if those bills as claimed by the Plaintiff with regard to the stock verification, the Plaintiff is not entitled to any amount on this account inasmuch as there is no provision for making payment of stock verification in the agreement dated 28.4.1976. There was actual shortage of steel materials caused by the Plaintiff who violated the terms and conditions by not submitting the Short Certificate to be issued by the Railway Authority whenever and wherever necessary as per related clause of the agreement and as such the Plaintiff has no right to demand for refund of the said security deposit. It was further alleged in the written statement that the statement made in paragraph 15(a) of the plaint is not correct and the Defendant referred to Clause 3.7 and further, the Defendant completely denied the statements made in paragraph 15(b) of the plaint by stating that in the deed of agreement nowhere mentioned about any interest and the interest Act or the Sales of Goods Act do not apply at all. According to the Defendant, as per clause 3.7 of the agreement, the Company does not give any guarantee or assurance of handling and storage of any minimum quantity to the contractor, but the Plaintiff has made a wrong interpretation of the Defendant''s letter of 4.1.79. In the said letter it was specifically written that the validity of the agreement for further period of six months from 1.1.79 to 30.6.79 was extended on the existing terms and conditions and the rates and the words "validity of agreement'' refers to the "Agreement" in between the parties dated 28.4.76 and the validity of the said agreement was extended thrice and as such the Plaintiff cannot claim that 9000 M/T at the rate of 1500 M.T. per month ought to have been despatched by the Defendant and that the Plaintiff is not entitled any handling commission for 9000 M/T at any rate. Making all these statements in the written statement, the Defendant made a prayer for dismissal of the suit with costs and award compensatory cost of Rs. 3,000/-.

On the basis of the pleadings of both the parties, the learned trial Court framed as many as seven issues for just determination of real points in controversy between the parties. Those issues are quoted below:

Whether the Court has jurisdiction to try the suit?

Whether the Plaintiff has right to sue the Defendant in the suit?

Whether the Plaintiff is entitled to a decree for Rs. 9,48,950.00 with interest, further interest, cost etc. from the Defendant?

Whether the suit is barred by limitation?

Whether there is any cause of action for the suit?

Whether there was an unconditional arbitration agreement between the parties?

Whether any other relief7reliefs to which the Plaintiff is entitled?

The Plaintiff examined one witness and made exhibits of 21 Nos. of documents and on the other hand the Defendant examined two witnesses and made exhibits of 8 Nos. of documents.

Upon hearing the parties, the learned trial Court decreed the suit with cost on contest for Rs. 9,00,950/- initially in the judgment and decree dated 5.6.92 which was subsequently corrected and modified by an order dated 17.6.92 in respect of the decretal amount to the tune of Rs. 9,48,950/-.

Being aggrieved by the impugned judgment and decree as passed by the learned trial Court in Money Suit No. 122 of 1986, the Defendant/Appellant preferred this appeal.

Shri P.C. Deka, learned senior counsel for the Defendant-Appellant submitted that the learned trial Court completely misinterpreted, misappropriated and misunderstood the agreement dated 28.4.1976 marked as Exhibit-4 while passing the impugned judgment and decree. After the expiry of the original contract as per agreement (Exhibit-4) the contract in question was extended on the terms and conditions as contained in Exhibit-4 and in such a situation the Plaintiff is precluded by law from demanding or claiming any benefits not provided by the terms and conditions contained in the said agreement and as such the learned trial Court erred in law and fact in granting the reliefs claimed in the suit. Drawing our attention to the documents, namely, the office letter dated 28.11.78 of the Plaintiff and also the office letter dated 4.1.79 of the Defendant as reflected in paragraph 15(a), Sri P.C. Deka argued that the validity of the agreement for a further period of six months from 1.1.79 to 30.6.79 on the existing terms and conditions and rates was extended vide order of 4.1.79 on the approach of the Plaintiff vide letter of 28.11.78, but the office letter of 4.1.79 does not permit the Plaintiff to receive minimum quantity of 1500 M.T. per month, but such extension was made purely on the existing terms and conditions and rates as enshrined under the related agreement marked, Exhibit-4. The learned trial Court failed to consider the issue No. 3 in its proper perspective and failed to consider the different amounts claimed by the Plaintiff under different heads and intermingling all the heads into one clubbed the entire claim thereby making the decision invalid in law and facts and on this count alone the decision on issue No. 3 is liable to be set aside, Shri Deka contended. According to Mr. Deka, the finding of the learned trial Court in the matter of interest in respect of all items is not only illegal and also baseless and arbitrary and the learned trial Court make out a vague case not pleaded by the Plaintiff and illegally awarded interest on the decretal amount which is not sustainable in law. Learned Counsel further argued that the finding of the learned trial Court to the effect that exhibit -''Kha'' to exhibit - ''Cha'' of the appeal have no evidentiary value is against the provisions of law and illegal and the judgment and decree passed without considering those documents are not sustainable in law.

None appears for the Respondent-Plaintiff. Despite absence of the Respondent or his counsel, we shall examine and consider the case of the Respondent on the basis of the available material/evidence on record.

Now this Court is to examine and determine as to whether the learned trial Court had misappreciated and misconceived the evidence on record and whether the impugned judgment and decree suffers from illegality, irregularity or incorrectness or not.

The Plaintiff claims handling and storage charges to the tune of Rs. 15,823.70 paise including interest of Rs. 7,120/- for the period between 16.5.79 and 1.7.79. The Plaintiff also made the following claims:

(a) Cost of carriage of materials from Tinsukia to Makum for an aggregate value of Rs. 6,281.80 paise with interest of Rs. 2,826;

(b) Cost of stock verification for a sum of Rs. 49,211.05 paise with an interest of Rs. 22,144/-;

(c) A sum of Rs. 17,272.08 paise which was wrongly deducted by the Defendant on account of shortage of pig iron with an interest of Rs. 9,326/-;

(d) Another sum of Rs. 35,168.47 paise which was wrongly deducted on account of alleged shortage of steel materials with interest of Rs. 18,990/-.

(e) A sum of Rs. 2 lakhs deposited with the Defendant as security deposit with interest of Rs. 2,08,000/-.

(f) An amount of Rs. 2,38,653.90 paise as handling commission in terms of the related bills of 10.7.79 with an interest of Rs. 1,18,133/-.

The total claim of the Plaintiff comes to the tune of Rs. 9,48,950/-. According to the Plaintiff there are sufficient evidence for proving his case and accordingly his case was proved on the basis of the available evidence on record. We have perused the impugned judgment and the evidence on record.

For better appreciation of the case in hand, it would be just and proper to examine the related documents marked Exhibit-4 i.e. the agreement. Thus we examined it an some related terms and conditions contained in the said agreement are reproduced as hereunder:

The Company shall arrange despatch from its plants at Durgapur, Bhilai and Rourkela and from Bokaro Steel Limited and Indian Iron & Steel Company Ltd. iron and steel materials to the contractor''s private siding and/or to the nearest railhead/Railway siding.

1.1 On arrival of the consignments at the destination railhead/railway siding of the contractor, the contractor shall unload, handle (and transport wherever necessary) and stock the matarials in his stores, yard or godown specially earmarked for this purpose and such materials shall be stocked or stored in the manner advised by the company. For all these operations the contractor shall use his own or hired machineries, equipments and labour.

1.2 The contractor shall weigh and handover to the company''s customers the materials only against delivery orders issued by the authorised officers of the company, duly nominated by the Zonal Managers of the Company, after taking due acknowledgment of the customers of his duly authorised representative on the challans for the materials actually delivered. The contractor shall also honour the delivery orders issued by the company for delivery against proper authorisation of the company.

1.3 The materials supplied by the company''s plants or Bokaro Steel Limited or Indian Iron & Steel Company Limited, should be stacked separately and shall be identified plantwise by marking on stocks and stored in distinct demarcated area. The premises used by the contractor, for this purpose will be exclusively for storing materials supplied from company''s plants or Bokaro Steel Limited or Indian Iron & Steel Company Limited and should not contain the contractor''s or others materials in the premises.

1.5 The contractor shall furnish Security Deposit of Rupees Two lacs of Property issued by a Scheduled/nationalised Bank and shall, in addition to such Security Deposit furnish a personal guarantee of the partner of the contractor for proper and due performance of the obligations under the contract. If the company suffers and loss or damage due to negligence and/or non-performance of the obligations under the contract by the contractors, the company reserves the right to recover such losses and/or damages from the Security Deposit as well as the personal guarantee without prejudice to any other legal remedies/recourses open to the company to proceed against the contractor for recovering the losses/damages. The decision of the company as to the amount of loss/damage suffered by the company shall be final and binding on the contractor. The Security Deposit furnished by the contractor as well as the personal guarantee referred to above shall be released only after the expiry/termination of the contract and on the contractor''s part producing a no-objection certificate from the company.

The contractor shall keep proper records of the all materials despatched to the contractor''s yard. The contractor shall be solely responsible for safe custody of all such materials and render such account of the stocks, as prescribed by the company from time to time. The contractor shall stock the materials sizewise, qualitywise and wagonwise. The contractor shall be responsible for all damages caused to the materials when the materials are in contractor''s custody, including the iosses, if any, caused during transportation and handling. The materials shall be deemed to be in the contractor''s custody as soon as the Railway Receipt/Consignment Advice are handed over the contractor by the company irrespective of the fact whether the materials are in transit or actually received by the contractor.

2.1 The receipt of the materials by the contractor shall be accounted on the basis of qualities despatched from company''s plants, Bokaro Steel Limited and Indian Iron and Steel Company Limited as per their consignment advice issued by the respective plants. However, to cover the hazards of shortage, the company would allow a maximum of 0.250% net shortage (after adjusting excesses, if any) in case of steel materials and in case of pig iron the above percentage shall be limited of 2%. All shortage in transit not supported by Railways Short Certificate shall also be included in the above maximum shortage a allowable to the contractor. Any net shortages (after adjustment of excess) in excess of these percentage as stipulated above, shall be to the contractor''s account the value of which shall also be responsible to accept the weight of relevant Railway Receipt/Consignment Advice unless otherwise the shortage, if any, are supported by the Shortage Certificate issued by the Railway. The contractor accepts the company''s practice of determination of weight for despatch by plant and sale by stockyard, as prevailing from time to time.

2.2 Any shortage supported by valid Short Receipt Certificates given by the Railways only, shall be excluded from the gross shortages for the purpose of arriving at the net shortages as stipulated above. But if the shortages are not supported with corresponding valid Short Receipt Certificate issued by the Railways, the contractor shall be responsible to reimburse to the company the value of all net shortage beyond the limit of shortages permitted under this clause hereinbefore. The company, however, always reserves the right to recover from the contractor''s bills and/or dues if such amount found due to the company.

The value of such recoverable shortage will be assessed at the company''s prevailing stockyard price for such materials for the month in which the shortages are determined. In addition, the company may depute its representatives at any time to determine the position of stocks and discrepancy thereof. For this purpose, the records of receipt and delivery should be maintained wagonwise. The amount due to the company as determined by the company shall be promptly settled by the contractor on demand from the company. The company, however, already reserve the right to recover from the contractor''s bills and/or dues any such amount found due to the company.

2.8 The company shall despatch materials from its plants/Bokaro Steel Ltd./Indian Iron and Steel Co. Ltd. to the nearest public booking point/railhead.

The relative Railway Receipts shall be raised showing the company as consignee, and the relevant Railway Receipts and consignment Advices will be handed over to the contractor duly endorsed by the officer/s of the company to the contractor. If the wagons arrive earlier than the receipt of the documents by the Company''s office or the contractor, the contractor shall make arrangements to obtain delivery by furnishing necessary Guarantee/Indemnity Bond to the Railways without any incidence of demurrage/whargage charges.

In case the materials are to be despatched to the private siding of the contractor, the Railway Receipt will be taken out in the name of the contractor. The contractor shall be responsible to clear the goods on arrival of the wagon irrespective of whether the relevant Railway Receipt has been delivered to him or not. On no account any demurrage or wharfage will be paid to the contractor when materials are despatched to his private siding.

For all the operations mentioned above, the company shall pay to the contractor a consolidated rate of Rs. 30/- per tonne of materials delivered to the company''s customers/or to the company as the case may be.

3.7 The company does not give any guarantee or assurance of handling and storage of any minimum quantity to the contractor, the contractor shall therefore make his arrangements in such a way as not to base his capacity on any assumed minimum guaranteed handling of materials. The failure of the company to supply any quantity during any particular month would not make the company liable for any damage whatsoever to the contractor.

3.12 The contractor shall store separately all bundling and packing materials and wooden logs received along with the steel materials separately and report to the company at regular intervals for arranging their disposal. The quantity of such materials likely to be received has been taken into account while fixing the allowance towards shortage.

3.13 The terms and conditions contained in this contract shall be extended to and be deemed to cover the agreements already entered into with the contractor. The terms and conditions hereof shall prevail over the terms and conditions contained in the contract earlier awarded.

It is an admitted fact of the parties that the Plaintiff issued/sent a letter dated 28.11.78 to the zonal Manager of the Defendant on the subject "Consignment Agency Agreement" expressing the Plaintiff''s consent to the extension of the Validity of the Plaintiff''s consignment Agency Agreement for the period from 1.1.79 for upto 1 year, but not less than six months. The said letter is reproduced as hereunder:

The Zonal Manger (Cal. Zone),

Steel Authority of India Ltd.,

Successors to Hindustan Steel Ltd.,

Branch Sales Office,

4, India Exchange Place,

Calcutta-700 001.

Kind Attn. : Sri N.A. Alwar,

Sub- Consignment Agency Agreement.

Dear Sir,

We hereby agree to the extension of the validly of our Consignment Agency Agreement for the period from 01.01.79 for upto one year but not less than 6 months.

But we would like to point out that it would not be economical for us to operate unless and average of at least 1500 M/T per month is received in our year, which we request you to kindly bear in mind at the time of renewal of our contract.

This offer is valid till 31.12.1978 for your acceptance.

Thanking you,

Yours faithfully

for Ashok Industries,

Sd/- D.R. Agarwal,

Attorney Holder.

It is also an admitted position that the Defendant extended the validity of the agreement for further period of six months from 1.1.79 to 30.6.79 on the existing terms and conditions and the rates under Defendant''s letter of 4.1.79 which is quoted below:

STEEL AUTHORITY OF INDIA LIMITED (A Government of India Enterprise)

Reference No. CAZ/12(Tinsukia)/19 Date Jan 4, 1979.

M/s. Ashok Industries,

Udyognagar, Tinsukia,

Assam.

Dear Sirs,

Kindly refer your letter No. Nil dated 28.11.78 regarding consignment yard being operated by you at Tinsukia. Accordingly, we hereby extend the validity of the agreement for a further period of six months from 1.1.79 to 30.6.79 on the existing terms and conditions and rates. We are also arranging for immediate despatch of materials which you may please receive and handle as per procedures/instructions hitherto in force.

Yours faithfully,

For and on behalf of

STEEL AUTHORITY OF INDIA LTD.

Sd/-

(H.A. Alwar)

Zonal Manager

The Plaintiff also highlighted the above facts in paragraph 15(a)and 15(b) of the plaint. On bare perusal of the above two letters of 28.11.78 and 4.1.79, it has been revealed and established that extension of the validly of the said agreement for the aforesaid period was made on the existing terms and conditions and the rates. As per clause 3.7 of the agreement, the company i.e. the Defendant does not give any guarantee or assurance of handling or storage of any minimum quantity to the contractors. Moreover, the letter of 4.1.79 did not speak a specific quantity of the articles/materials to be supplied by the Defendant and also the quantity to be received by the Plaintiff.

The existence of the said agreement marked, Exhibit-4 is also admitted by the parties. It is well settled that facts admitted by the parties need not be proved as contemplated u/s 58 of the Indian Evidence Act. The clause 3.13 of the agreement provides that the terms and conditions contained in this contract shall be extended to and be deemed to cover the agreements already entered with the contractor. It is also an admitted position that the validly of the said agreement was extended thrice. This factum of extension finds its place in paragraph 19 of the amended written statement of the Defendant. In our considered view there is no supporting evidence to establish the fact that 1500 M/T per month is to be despatched by the Defendant during the aforesaid extended period and as such the findings of the learned trial Court entitling the Plaintiff the handling commission for 9000 M/T per month i.e. Rs. 2,38,653.90 paise with interest under the impugned judgment and decree is not tenable in the eye of law and the same is illegal.

So far the claim of the Plaintiff with regard to the handling and storage charges to the tune of Rs. 15,823.70 paise, there is no reliable evidence on record and as such, the reliefs so far afforded in this regard by the trial Court is also illegal in the absence of reliable evidence. There is also no provision under the agreement for making payment for stock verification and the cost of carriage of materials from Tinsukia to Makum. So far the deduction of Rs. 17,272.08 paise on account of shortage of both Pig Iron and Steel materials, the Defendant had satisfied the learned trial Court by contending inter alia, that the Plaintiff was duly informed under the related letter of 23.2.77 as reflected in paragraph 16 of the amended written statement which was not duly considered by the learned trial Court while passing the impugned judgment and decree and as such this related finding of the learned trial Court is perverse. As per clause 1.5, the decision of the company is to the amount on loss/damage suffered by the company shall be final and binding on the contractor. Clause 2.2 further provides that any shortage supported by valid Short Receipt Certificates given by the Railways only, shall be excluded from the gross shortages for the purpose of arriving at the net shortage as stipulated above. But if the shortages are not supported with corresponding valid Short Receipt Certificate issued by the Railway, the contractor shall be responsible to reimburse to the Company the value of all shortage beyond the limit of shortages permitted under this clause hereinbefore . As there was shortage of steel materials, the aforesaid amount of Rs. 35,168.47 paise was deducted. In our considered view the Plaintiff has no right to demand as to cutting wastage as it is not allowed by any provisions of the agreement ad nowhere in India cutting wastage is allowed. We are also of the view that the learned trial Court also lost sight of this related provisions of Clause 2.2 of the agreement while passing the impugned judgment and decree. It is known to the parties that the aforesaid agreement marked Exhibit 4 is a contract between themselves and the same was made by the pre-consent of the parties competent to execute the same with a lawful object as enshrined in it and as such the said agreement is binding upon the parties, namely the present Plaintiff and Defendant in view of Section 10 read with Section 37 of the Indian Contract Act, 1872. But in the instant case, the Plaintiff could not produce any valid Short Receipt Certificates issued by the Railway concerned in support of his claim. Therefore, we are of the view that the learned trial Court lost this important aspect while rendering this related findings and, therefore, such finding is not tenable in the eye of law.

It is also an admitted fact that the Plaintiff duly furnished the security deposit with the Defendant to the extent of Rs. 2 lakhs and the said contract was expired/terminated on and from 1.7.1979. Now, we are to examine as to whether the Plaintiff shall be entitled to receive the said security deposit of Rs. 2 lakhs in view of the existing evidence on record. The Defendant in paragraph 22 of his written statement also admitted about the security deposit of Rs. 2 lakhs.

As per clause 1.5 security deposit furnished by the contractor as well as personal guarantee shall be released after the expiry of termination of the contract and on the contractor''s part producing a no-objection certificate from the company. According to the Defendant the security deposit of Rs. 2 lakhs against which the Defendant has to recover an amount of Rs. 1,38,442.74 paise as charges of shortage. Another amount of Rs. 1,81,041.10 paise was also to be recovered from the Plaintiff on account of various shortage during the period of contract, out of which an amount of Rs. 42,483.29 paise was already recovered from the Plaintiff as per provisions of clause 2.2. The Defendant could not make out a case to justify the recovery of the aforesaid amount of Rs. 1,38,442.74 paise plus the remaining amount as charge of shortage from the security deposit of Rs. 2 lakhs. No document was produced by the Defendant in support of such claim of the Defendant. D.W. No. 1 in his cross-examination admitted that nothing has been stated by the Defendant about recoverable amount of Rs. 1,38,557.81 paise from the security deposit amount of Rs. 2 lakhs by the Plaintiff. In other words, the Defendant had failed to establish and prove its case on this particular issue. Therefore, we are of the view that the Plaintiff is entitled to get back the security deposit of Rs. 2 lakhs. So far as the interest is concerned, there is no provision relating to interest chargeable by the Plaintiff or by the Defendant under the related agreement, Exhibit-4 during the existence of the contract amongst themselves, hence the finding of the learned trial Court affording interest upon the amounts claimed is perverse and illegal.

For the reasons and discussions made above, the Plaintiff Respondent is entitled to recover a sum of Rs. 2 lakhs from the Defendant Appellant only and as such the Appellant-Defendant shall pay the said security deposit of Rs. 2 lakhs to the Respondent Plaintiff within a period of one month from today if not already paid. The Plaintiff is not entitled to for other reliefs as claimed. The findings of the learned trial Court to the extent of money decree of Rs. 9,48,950/- with interest except the claim/relief of security deposit of Rs. 2 lakhs is set aside. In the result, this appeal is partly allowed, thus the decree appealed from is varied/modified accordingly. No costs.