9911796707
TMI Blog2007 (11) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be noted that the respondent had filed a suit (Civil Suit No. 6040 of 1994) before learned City Civil Judge Ahmedabad for injunction restraining the appellant No. 1- Corporation and its functionaries from recovering and/or withholding any amount from the bills of the respondent herein and also for a declaration that action of appellant No. 1- Corporation in recovering various amounts without deciding the rates for extra work was bad in law and for directing the appellant-Corporation to make payment for the extra work at the rates demanded by the respondent. It was averred that as per the tender notice the respondent herein was required to handle 750 MT per day as per the charter party and for handling for which rate was fixed at Rs. 108 per MT. It was further stated that the appellant-Corporation by the letters dated 30.9.1994, 14.10.1994 directed the respondent herein to handle more cargo than what was prescribed above and consequently the respondent herein started handling cargo to the tune of 1200 to 1300 MT per day against the contracted rate of 750 M.T. In view of the accelerated discharge, the respondent had to incur additional expenses towards enhanced rate of wages, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether the plaintiff is entitled to recover the amount from the defendant as prayed in para 12(A) and (B) of the plaint? (vii) What order and decree? 4. The learned trial Judge decided issues (i), (ii), (iii) and and (v) in favour of the Respondent/Plaintiff. However, the learned Judge dismissed the suit on the basis of findings in issue Nos. (iv) and (vi). 5. The following findings inter alia were recorded by learned trial judge. (i) Clause XX (1)(i) of the contract provided for a minimum discharge rate of 750 M.T. per day as provided in the Charter Party, so that the vessel would not suffer any demurrage. Thus, the Respondent herein (Plaintiff) had carried out the work of handling cargo as per the terms of the contract. (ii) The Appellant Corporation (Defendant) had insisted for discharge of cargo at higher rate with a view to comply with the direction of the port authorities. The Respondent Plaintiff had discharged additional quantities. Clause 41 of the contract provides that the contractor shall comply with the rules and regulation of the Port Authorities, and since the Port Authorities had demanded discharge at faster rate the Respondent herein (Plaintiff) was under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the issue holding that the respondent herein had substantiated the said claim by the letter dated 9.11.1994. (vii) In letter dated 14.11.1994 sent by the Assistant Manager of the appellant-Corporation he had recommended for the enhanced rate of payment that would constitute an admission of the enhanced rate as claimed by the respondent. 8. In support of Civil Appeal No. 7440 of 2000, learned Counsel for the appellants submitted that the contracts stipulated remuneration at the rate of Rs. 100/- per MT for discharge at the charter party rate for a period from 16.8.1994 to 15.8.1995. It does not preclude any higher discharge rate since its discharge rate is not pre-determined and it varies from ship to ship. The stipulation of the charter party rate is only for the purpose of ensuring that the appellant- Corporation does not suffer any demurrage on account of slow discharge. Since the rate of discharge is a variable factor from ship to ship, the remuneration in the present contract is not dependant on the daily discharge rate. Actual figures also show that the discharge rate has been varying daily. Therefore, the request of the appellant Corporation for a faster discharge was as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that the contractor was bound to discharge the articles at an average rate of 750/- per MT. In the event of failure to do so, the corporation was liable to pay demurrage at the rate of US$ 4000 per day. In case the rate was achieved, the Corporation was entitled to receive discharge money for working time saved at the rate of US$2000 per day. In the present appeal, the Corporation has withheld the information from the trial court as well as the High Court. Since the respondent-Society had started the execution of the work it had received a letter dated 30th September, 1994 from the Corporation "to rise to the occasion and to come forward with all the machinery geared up to ensure maintaining four gangs/cranes in each shift to achieve the target of not less than 2000 M.Ts. per day without fail". Another letter dated 14th October, 1994 was to similar effect. It is unconceivable as contended by the appellant-Corporation that no extra expenditure would be involved in getting a higher rate of discharge. The Customs authorities were delaying the clearance. There was delay even at the time of unloading. At the depot of the Corporation, the arrangements were very poor. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a more liberal interpretation; the principle of the section being wider than the principle of quantum meruit.' The principle has no application where there is a specific agreement in operation. A person who does work or who supplies goods under a contract, if no price is fixed, is entitled to be paid a reasonable sum for his labour and the goods supplied. If the work is outside the contract, the terms of the contract can have no application; and the contractor is entitled to be paid a reasonable price for such work as was done by him. 13. If a party to a contract has done additional construction for another not intending to do it gratuitously and such other has obtained benefit, the former is entitled to compensation for the additional work not covered by the contract. If an oral agreement is pleaded, which is not proved, he will be entitled to compensation under Section 70. Payment under this section can also be claimed for work done beyond the terms of the contract, when the benefit of the work has been availed of by the defendant. 14. The term 'extra' is generally used in relation to the works, which are not expressly or impliedly included in the original contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charter party of the concerned vessel and ultimately if there has been any short fall in discharge of the vessel at the stipulated rate and consequential demurrage charges, the contractor will be responsible for the same and will make good whatever losses and expenses incurred by the Corporation, the Corporation shall have the right to deduct these losses from the admitted bills of the contractors. Clause XXII - Ship to discharge at the average rate of 750 M.T. calculated on gross weight provided vessel can deliver at this rate per working day of 24 consecutive hours time from noon Saturday to 8 a.m. Monday (for local equivalent ) and from 5 p.m. day preceding holiday until 8 a.m, next working day excepted, even used, time employed in shifting anchorages or discharging places within the same port or its jurisdiction not to count as laytime, and shifting expenses to be for owners account. Clause XXIII of the charter party agreement provided as under: If longer detained in loading and/or discharging ports, demurrage to be paid at the rate of $4000.00 per day, or in proportion for any part of 1 day. Ship to pay $2000.00 per day or in proportion, dispatch money for all working ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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