HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND HON’BLE SMT. JUSTICE TIRUMALA DEVI EADA CITY CIVIL COURT APPEAL NOs.12 OF 2006 AND 33 OF 2011 COMMON JUDGMENT: (per Hon’ble Smt. Justice Tirumala Devi Eada)

These two appeals are filed by the appellant(s) aggrieved by the judgment and decree dated 30.07.2005 passed in O.S.No.447 of 2000 by the learned X Additional Chief Judge, City Civil Court, Hyderabad (hereinafter referred to as ‘the trial Court’).

2. For convenience and clarity, the parties herein are referred to as they were arrayed before the trial Court.

3. The case of the plaintiff before the trial Court is that the plaintiff is a company engaged in fabrication and erection of structural works in the industrial units and it has its registered office at Chandanagar, Hyderabad. The plaintiff company offered to execute the contract work of fabrication and erection of structural steel work at NTPC site, Simhadri on tonnage rate basis and that the defendant No.1 company has accepted the same and entrusted the work. While executing the said work, the plaintiff has experienced hardships and the same was communicated to defendant No.1 and that there were onerous job requirements to be performed and the designs adopted by defendant No.1 was found to be highly disproportionate to the market rates and due to the undue hardship, the plaintiff company wound up its operations with immediate effect in the month of May, 2000 and has informed the defendant No.1 company through its letter dated 18.05.2000. The plaintiff has requested the defendant No.1 to arrange a gate pass for removing its equipment as it has stopped its activity but the defendant No.1 failed to arrange for the same. His equipment and machinery got stalled in the defendant No.1 company and that he had to pay the suppliers for the equipment to an extent of Rs.22,01,500/- and that due to immobilization of the equipment, the plaintiff suffered damage every day. Further, defendant No.1 company has invoked a bank guarantee of Rs.7,30,000/- towards mobilization advance and appropriated the same but has failed to comply the request of the plaintiff in arranging the gate pass for removing the equipment. Thus, having suffered at the hands of defendant, he claimed Rs.1,11,000/- towards damages accrued and damages of Rs.3,000/- per day from the date of plaint, till the defendants permit the plaintiff to remove plaint schedule items from the site of defendant No.2 at Paravada, Visakhapatnam. Hence, he has filed the suit.

4. Defendant No.2 has remained ex parte and defendant No.1 has filed written statement denying the jurisdiction. The defendant No.1 has admitted the fact that defendant No.1 company has offered to execute the contract work of fabrication and erection of structural steel work with defendant No.1 company and that after several rounds of negotiations, the plaintiff submitted its revised offer and finally the defendant has accepted the offer of the plaintiff, subject to the terms and conditions setup therein and it also contended that a detailed work order was issued on 10.02.2000 to the defendant and that as per clause 32 of the terms and conditions annexed to the work order, the plaintiff has to provide all the construction equipments like Cranes, Hydro Cranes, Tools, Tackles and scaffoldings required for the contract and that the plaintiff was supposed to furnish the list of all the equipment that was going to be installed by him, but he failed to do so. It is further contended by defendant No.2 that once the plaintiff has agreed for the execution of contract, he cannot complain saying that it is an onerous job. It further contended that their Manager has called the Managing Director of the plaintiff company and requested him to continue the job in the month of May but the plaintiff’s company acted in violation of the contract and has abandoned the site without any justification, which amounts to breach of contract and that in fact he is liable to compensate the defenda