HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MANMOHAN SINGH
PRADEEP NANDRAJOG, J. (Oral)
1. Appellant had sought a declaration that no binding contract existed between the appellant and the respondent for supply of 5,000 MT of Gramwhole. Permanent injunction was sought to restrain the respondent from proceeding with risk purchase pursuant to Tender Enquiry dated October 28, 1988.
2. The basis of the claim was clause 4(a) of the Tender Enquiry Form, Ex.P-1 read with the offer Ex.P-2. Admitting acceptance of Ex.P-2 by the Acceptance Letter Ex.P-3 dated March 28, 1988, the case of the appellant was that the conditions of the supply with respect to the prices in the context of the freight and other charges not being settled between the parties, there was no concluded contract especially keeping in view Ex.P-4 & Ex.P-5. It was the case of the appellant that it never agreed to the condition of supply:
„Free on Rail‟.
3. On the pleadings of the parties, vide order dated August 31, 2009, following 7 issues were settled:-
(i) Whether no complete and concluded contract dated 28.03.1988 came into existence? OPP
(ii) Whether the alleged contract dated 28.03.1988 did not comply with the requirements of the Article 299 of the Constitution of India? OPP
(iii) Whether the alleged contract dated 28.03.1988 is void, as being vague and uncertain? OPP
(iv) Does the defendant prove that the plaintiff is stopped from contending that there was no concluded contract dated 28.03.1988, in view of the alleged part supply of the goods by the plaintiff to the defendant? OPD
(v) Whether the plaintiff is entitled to a declaration that there is no valid and binding contract between the plaintiff and the defendant for supply of 5,000 M.T. of gramwhole? OPP
(vi) Whether the alleged risk purchase by the defendant is illegal, contrary to contract, improper or oppressive as alleged in the plaint? OPP
(vii) Relief.
4. Suffice would it be to state that at the core, were issues No.1, 3, 5 & 6. The learned Single Judge took up said four issues for discussion after rendering an opinion on issue No.2 and issue No.4; the former decided against the appellant under latter against the respondent.
5. Discussing the evidence and certain case laws cited, in paragraphs 17 to 24, we find that the learned Single Judge has made certain observations which suggest a conclusion as if the learned Single Judge is holding against the appellant on merits, but a meaningful reading of the impugned decision would reveal that the learned Single Judge has ultimately non-suited the appellant not with respect to the issues settled but on an issue which was not even settled.
6. The learned Single Judge has referred to Section 34 of the Specific Relief Act, 1963 and has held that as per said Section no declaration could be granted which did not relate to any legal character or right to property. The learned Single Judge concludes on the discussion, in paragraph 24 as under:-
“To this Court, it appears that in the present suit too, the plaintiff is asking for a declaration, which does not relate to any legal character or right to property; all that is sought is that obligations under a contract, do not arise, as that was not the intention of the parties. Therefore, applying the logic and rationale contained in the above decisions, it has to be concluded that the present suit is similarly not maintainable, as it does not seek declarations in relation to legal right or character, or right to property.”
7. Suffice would it be to state that the impugned judgment cannot be read as concluding a final opinion that there was a concluded contract between the parties. Though the learned Single Judge has proceeded to analyze the subject with reference to issue No.1: Whether there was a concluded contract between the parties, but has not answered the same on account of view taken that the suit itself was not maintainable.
8. In view of aforesaid, the learned Senior counsel for the appellant states that if a further clarification is given that the impugned judgment does not operate as res-judicata on the question: Whether there was a concluded contract between the parties, he would not press for any further clarification in the appeal.
9. Suffice would it be to state that a prior decision would operate as res-judicata if it has decided a matter or an issue on merits. If a prior proceeding is held to be not maintainable, the substance of the dispute not being adjudicated, with reference to the substance of the dispute, it cannot be said that the decision operates as res-judicata.
10. Holding so, the instant appeal stands disposed of.
11. No costs.
(PRADEEP NANDRAJOG) JUDGE SEPTEMBER 26, 2012/ka (MANMOHAN SINGH) JUDGE