The contractor is not liable for destination shortages absent sufficient evidence, affirming the court's findings on liability for withheld amounts.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present appeal is filed by the appellant – Food Corporation of India (original defendant) under Section 96 of the Civil Procedure Code, 1908 against the judgment and decree dated 23.07.2001 passed by the learned 6^th Joint Civil Judge (S.D.), at Jamnagar (hereinafter be referred to as “the trial Court”) in Special Civil Suit No. 98 of 1985, whereby, the learned Judge has partly allowed the suit filed by the original plaintiffs - respondents herein for recovery of damages and directed the appellant - Corporation to pay Rs.4,46,100/- to the respondents and also rejected the counter claim filed by the appellant.

2. The brief facts leading to present appeal in nut-shell are as under :

2.1 One Kanabhai Somabhai (Plaintiff-respondent, since deceased) was appointed as a stevedore clearing, handling and Transport contractor at Bedi/Rozi port for the period from 04.09.1982 to 03.09.1984 by the appellant after negotiating and telegram of acceptances was sent by the appellant to the deceased respondent which was received by him at Jamnagar. It was alleged by the deceased respondent that on several occasions, the appellant-Corporation had withheld the amount and was kept as deposit. That, the amount withheld from the various bills was illegal. That, the appellant, if liable, to reimburse all the amounts to the plaintiff. It was further alleged by the deceased respondent that the respondent was not responsible for the destination shortage of the goods being carried and loaded in railway wagons under the supervision and verification of the appellant staff. That, each wagon load was verified in the presence of appellant’s staff and a certificate was issued to that effect and Railway receipt was obtained in that case that if any shortage is found then appellant and its carrier would be liable for the goods. That, the appellant was bound to reimburse the amount of Rs.1,30,966/- which was deducted as the shortage and was kept as deposit. It is further averred that the appellant’s levies withheld various bills amounting to a total amount of Rs.1,96,128/ as per their letter dated 23.08.1984 as deduction towards security, without assigning any reasons. That, the appellant had also withheld Rs.25,500/- from the respondent’s bills and had illegally tried to forfeit the said amount as wagon registration charges.

2.2 In short, the appellant had withheld the amounts to the following effect as stated in para 16 of plaint, as under:-

[1] Payment made on behalf of the appellant as large detention charges. Rs.20,920/-

[2] Non Tender extra item at Minimum rates Rs.60,915/-

[3] Non-liability of alleged destination shortage deduction made 10% of bill amount and kept as deposit. Rs.1,30,965/-

[4] Amounts of various bills as per appellant’s letter dated 23.08.1984 withheld as security deposit. Rs.1,96,128/-

[5] Payment deducted as Railway Registration charges. Rs.25,500/-

[6] Central Bank of India guarantee furnished as initial security deposit. Rs.62,500/-

2.3 That, the above stated amount was due against the appellant. That, the deceased respondent had repeatedly demanded to pay up the dues but there was no response from the appellant and hence, a legal notice was served upon the appellant, inspite of that the appellant had not paid the said amount to the deceased respondent and therefore, the respondent had to file the suit being Special Civil Suit No. 98 of 1985 to recover Rs.4,96,930/- from the appellant.

2.4 That, the appellant had also filed Counter-claim for Rs.6,02,490.20ps., being the balance recoverable from the deceased respondent against the adjudged liability of Rs.11,04,572.54ps., under terms and conditions of the Tender Agreement.

2.5 That, the trial Court ha