Unilateral changes to a contract are invalid without mutual consent, and appellate courts must base decisions on presented arguments.

JUDGMENT

Mrs. Alka Sarin, J. (Oral)

The present appeal has been preferred by the plaintiff-appellant aggrieved by the judgment and decree dated 07.01.1993 passed by the First Appellate Court reversing the judgment and decree dated 16.11.1990 passed by the Trial Court.

2. The brief facts relevant to the present lis are that the present suit for injunction was filed by the plaintiff-appellant against the defendant-respondents i.e. Markfed Refined Oil and Allied Industries, Kapurthala etc. for restraining them from deducting the payment regarding item No.4.1 as mentioned in the schedule appended with the agreement (Ex.P1) executed between the parties. The case set up by the plaintiff-appellant was that he had been carrying on various jobs related to handling and re-handling of raw materials, finished products and packing materials etc. with the defendant-respondents on contract basis. The relevant contract period was 1987-1988. It was further averred that he had carried out various jobs of Markfed regarding lifting of bags of Markfed Refined Oil and Allied Industries, Kapurthala and it had agreed to make payments on the basis of the Schedule appended with the agreement. The defendant-respondents refused to make payments for item No.4.1, however, the remaining payments were made. Hence, the present suit. The defendant-respondents denied the allegations and contested the suit. Besides the preliminary objections, on merits it was admitted that the contractor i.e. the plaintiff-appellant had been carrying on contract work but stated that rates of contract of labourer were wrong. It was further stated that the plaintiff-appellant had made a request in writing on 22.10.1986 praying for payment of labour charges at the enhanced rate and the Committee decided that the contractor should be paid 37 paise per bag against his request of 55 paise on 22.10.1986 as Clause 4.1 merged in Clause 4.6.

3. On the basis of the pleadings of the parties the following issues were framed by the Trial Court :

1. Whether the plaintiff is entitled to the injunction prayed for ? OPP

2. Whether notice under section 79 of Cooperative Societies Act is required to be served on the defendant before filing the suit ? If so its effect ? OPD

3. Whether the suit is not maintainable ? OPD

4. Whether the proper court fee is not fixed ? OPD

5 Relief.

4. The Trial decreed the suit vide judgment and decree dated 16.11.1990. It is to be noted that the onus of issue Nos.2, 3 and 4 was cast upon the defendant-respondents who chose not to press issue Nos.2, 3 and 4 before the Trial Court. Aggrieved by the judgment and decree passed by the Trial Court, an appeal was preferred by the defendant-respondents which appeal was allowed vide judgment and decree dated 07.01.1993. Hence, the present regular second appeal.

5. Learned counsel for the plaintiff-appellant would contend that the plaintiff-appellant had been doing contract work for the defendant-respondents and for the year 1987-88 an agreement was entered into on 01.11.1987. As per Clause 1, the rates were to be paid as per the Schedule which formed part of the agreement. It is further the contention of the learned counsel that as per Clause 4.1, Rs.8/- were to be paid per 100 bags and as per Clause 4.6, Rs.37/- were to be paid per 100 bags. It is further the contention that though the other payments were made however it was the stand taken by the defendant-respondents that Clause 4.1 merged in Clause 4.6 and hence they refused to make the payments qua Clause 4.1. The learned counsel would further contend that there was no notice which was ever served upon the plaintiff-appellant intimating to him that Clause 4.1 had merged in Clause 4.6 nor was there any amendment to the Schedule. It is further the contention of the learned counsel that the plaintiff-appellant was orally conveyed that the said amount would not be paid under Clause 4.1 and the same had merged in Clause 4.6. However, in the written statement it was clearly stated th