The court affirmed the legality of contract termination due to imposed load restrictions, highlighting that contractual obligations must be fulfilled to claim damages.

JUDGMENT

T. Amarnath Goud, J. - These appeals, being RFA 17 of 2016 and RFA 22 of 2017 challenging the judgment and decree dated 27.02.2016 in T.S.130 of 2012 and Judgment and decree dated 26.04.2017 in T.S.106 of 2012 passed by the Civil Judge(Sr.Div), West Tripura, Agartala respectively, have been clubbed together for disposal by a common judgment.

2. The appellant contract-transporter in RFA 17 of 2016 having been selected under tender dated 12.08.2009[Exbt.1] floated by the Food Corporation of India (FCI for short)[respondent herein] for transporting food grains on behalf of FCI for two years, started transportation of the same after depositing 50% of the total security deposit on condition of deducting remaining 50% from the admitted bills at 5% as per the tender provision, meanwhile after repeated communications by the Executive Director, FCI, since 01.06.2010, the appellant received letter on 07.06.2010 informing the appellant of possible termination of contract and imposing 'risk and cost terms' obligation under which the appellant would be allowed to carry the load prescribed by the respondent only which was reduced to half of the weight the appellant contractors would carry, as usual, on commencement of the contract work thereby causing huge loss of profit to the appellant. The appellant was compelled to stop transportation of goods in the face of unbearable loss to an unbearable extent.

3. Subsequently, the agreement between the appellant and the respondent was terminated on the face of failure of enforcement of load regulation and fresh tenders were invited on 12.07.2010 for the residual part of the terminated agreement applying the risk and cost condition under Clause X(a),(b) and (c) of the agreement. The appellant was entrusted for transportation of goods by three agreements/contracts on different routes as under:

1) Guwahati to Chandrapur [the work commencing on 01.07.2008]

2) Guwahati to Dharmanagar [the work commencing on 07.12.2009]

3) Guwahati to Aizwal [the work commencing on 20.01.2010]

4) Churaibari to CWC Hafania and Dharmanagar to Hafania.

4. For remaining major part of the works the respondents floated fresh tenders on 13.07.2010 showing new rate per ton at Rs.4,700/- which was 2,001/-(from Changsari to Agartala in the terminated contract) preventing the appellant from contesting in the fresh tender stating them as defaulters. According to the appellant, it was impossible to perform transportation under new rate causing huge loss of profit. It is pleaded that the appellant would have earned profit provided under Schedule-2, if that rate was allowed to the plaintiff for performing remaining major part of the works.

5. Invoking the provisions of clause X(c), the respondent, by issuing notice dated 24.11.2010[Exbt.27], also cautioned the appellant that in the event of non execution of the remaining part of the work entrusted, the appellant shall be liable to make good to the respondent and fresh tender dated 13.07.2010[Exbt.21] was floated for engaging new transport contractors for completing the remaining part of the work.

6. Besides withholding and forfeiting the security money as shown in Schedule-1 of the Annexure, the respondents also raised demand for a huge sum of money from the appellant to realize risk and cost by issuing notices dated 01.11.2011, 11.08.2011, 26.06.2011 and 26.08.2011 [Exbt. 26 series].

7. So far the addition of clause in the said contract regarding load restriction is concerned, the appellant submits that no such clause was found available in the earlier tender notice dated 12.08.2009. Due to the severe restrictions imposed by the