ANANT RAJ AGENCIES v. INDCRJIT AND BROTHCRS — 1996 DIGILAW 657 (DEL)

M. K. SHARMA ( 1 ) THIS is a suit for recovery of Rs. 2,54. 538. 00 from the defendants with a pendente life and future interest at the rate of 21 per cent per annum. ( 2 ) THE plaintiff is a registered Partnership Firm, of which Shri Anil Sarin is a registered partner. The plaintiff firm is engaged, inter alia, in the business of construction. The plaintiff firm for the purpose of cam-ing out some construction works awarded to it. required bricks and accordingly entered into an agreement with the defendant No. 1 who is engaged in the business of manufacture for supply of 20 lakhs 1st Class bricks at the rate of Rs. 350. 00 per thousand bricks, inclusive of Sales Tax, Cartage, etc. The plaintiff at the request of defendant No. 1 advanced a sum of Rs. 60. 000. 00 to defendant No. 1 vide Cheque No, P 600956 dated 13/12/1985 drawn on State Bank of Patiala. Hauz Khas, New Delhi and the said cheque was duly encashed by the defendant No. 1. Defendant No. 1 through its representative again approached the plaintiff for advancing Rs. 27,000. 00 which was urgently required bv it to enable it to purchase coal for supplying the bricks and the plaintiff advanced a sum of Rs. 27. 000. 00 vide Cheque No. 175401 dated 26. 12. 1985. which was also encashed by the defendant No. 1. The defendant No. 1. however. issued a cheque bearing No. 994965 drawn on State Bank of Patiala dated 3. 1. 1986 purporting to return the sum of Rs. 27. 000. 00 which was advanced by the plaintiff at the request of defendant No. 1, but the said cheque was returned unencashed with the endorsement "not arranged for . ( 3 ) IT is further averred in the plaint that the defendant in complete breach of the agreement failed to supply 20 lakh bricks as agreed upon to be supplied and when inspite of waiting by the plaintiff for the defendant No. 1 to make such supplies till May, 1986, the plaintiff made purchase from the open market at the risk and cost of the defendant by making purchase of the said bricks at the rate of Rs. 340. 00 to Rs. 350. 00. per thousand bricks. In that manner, the plaintiff purchased 19 lakh bricks costing in all Rs. 8,36,000. 340. 00 to Rs. 350. 00. per thousand bricks. In that manner, the plaintiff purchased 19 lakh bricks costing in all Rs. 8,36,000. 00 at the rate varying from Rs. 430. 00 to Rs 450. 00, whereas, the rate agreed with the defendant was Rs. 350. 00 per thousand bricks. It was further stated that the defendant No. 1 advanced a total sum of Rs. 87,000. 00 and suffered a loss of Rs. 1,71,000. 00 on account of breach of the defendant and accordingly the present suit has been filed seeking to recover the aforesaid amount of Rs. 2. 54,538. 00 seeking a decree thereof ( 4 ) THE defendants filed a written statement denying the allegations made in the plaint and also stating, inter alia, that the plaintiff gave an advance of Rs. 60,000. 00 to the defendants by cheque, which was encashed as against which the defendants supplied bricks of the value of Rs. 70. 000. 00 to the plaintiff and were prepared to refund a sum of Rs. 17,000. 00 in full and final settlement of the account between the plaintiff and the defendants. ( 5 ) ON the aforesaid pleadings of me parties, altogether eight issues were framed in the suit which read as follows:- , 1. WHETHER the plaintiff is a partnership firm duly registered under the Indian Partnership Act and the suit has been filed through a registered partner? OPP. 2. WHETHER the defendants agreed to supply 20 lakh bricks to the plaintiff as alleged in para 5 of the plaint? OPP. 3. WHETHER the defendants supplied two lakhbricks to the plaintiff ? OPD. 4. WHETHER the plaintiff purchased 19 lakh bricks valued at Rs. 8,36,000. 00 at the risk and costs of the defendants ? If so, its effect? OPP 5. WHETHER the plaintiff is entitled to receive the amount of difference of the original price and the price at which the plaintiff purchased the bricks at the risk of the defendants? OPP. 6. WHETHER the plaintiff is entitled to interest? If so, at what rate? OPP. 7. TO what amount is the plaintiff entitled? OPP. ( 6 ) ON behalf of the plaintiff, Mr. Pankaj Nagra, who is the Manager of the plaintiff firm was examined. After examining the said witness, the plaintiff closed his evidence on 26. 4. 1995. OPP. 6. WHETHER the plaintiff is entitled to interest? If so, at what rate? OPP. 7. TO what amount is the plaintiff entitled? OPP. ( 6 ) ON behalf of the plaintiff, Mr. Pankaj Nagra, who is the Manager of the plaintiff firm was examined. After examining the said witness, the plaintiff closed his evidence on 26. 4. 1995. As none was present on behalf of the defendants on that date, the evidence of the defendants was also closed. 7. The case was listed in the category of finals for arguments. When me matter was called out for hearing, the plaintiff was represented by its counsel, but none represented me defendants. I have heard the learned counsel for the plaintiff and now proceed to decide the suit. ISSUE N0. 1: ( 7 ) THE plaintiff in its pleading has pleaded mat the plaintiff firm is a registered partnership firm and to the aid effect, evidence lias also been led to prove that the plaintiff firm is a registered partnership firm and that the suit has been filed through a competent person. Accordingly, this issue is decided in favour of the plaintiff. ISSUES N0. 2 and 3: ( 8 ) AS these issues deal with the same facts and evidence, they are dealt with together. The plaintiff firm on being approached by the defendants entered into an agreement with the defendants for supply of 20 lakh bricks at Rs. 350. 00 per thousand bricks. The aforesaid agreement lias been exhibited and marked as Exhibit a and the signatures of Mr. Anil Sarin. signing as a partner of the plaintiff firm and of Mrs. Rushma Walia. signing on behalf of the defendants have been proved by public witness. 1. The aforesaid agreement proves and establishes that the defendants were required to supply 20 lakh bricks at Rs. 350. 00 per thousand preces of bricks to the plaintiff. It is pleaded in the plaint and also proved in the evidence thatunder the terms of the aforesaid agreement, the defendants supplied to the plaintiff only 75. 000 pieces of bricks. It has been further pleaded in the plaint and proved in evidence of public witness. I that the plaintiff in all paid Rs. 27,000. 00 to the defendants as advance through two different cheques which lias not been repaid by the defendants. public witness. 000 pieces of bricks. It has been further pleaded in the plaint and proved in evidence of public witness. I that the plaintiff in all paid Rs. 27,000. 00 to the defendants as advance through two different cheques which lias not been repaid by the defendants. public witness. I has proved that the defendants issued one cheque for Rs. 27. 000. 00 for refunding the amount of Rs. 27,000. 00 taken by the defendants from the plaintiff, but the said cheque returned dishonoured and that the plaintiff could not obtain any payment thereunder The said cheque is also an exhibit in the suit and is marked as Exhibit b . Thus. the plaintiff has been able to prove with sufficient certainty that the plainiff had paid Rs. 87,000. 00 to the defendants as advance for supply of 19 lakh bricks agreed upon to be supplied by the defendants to the plaintiff. As against the same. it is also proved on evidence that the defendants supplied only 75,000 pieces of bricks. Accordingly, a sum of Rs. 60,650. 00 is found to be the balance outstanding to be paid by the defendants to the plaintiff against the amount advanced by the plaintiff. Issues No. 2 and 3 are, therefore, decided in favour of the plaintiff and against the defendants. ISSUES N0. 4 and 5: ( 9 ) AS these issues also deal with same facts and evidence, they are dealt with together. ( 10 ) THE agreement marked Exhibit a , arrived at by the plaintiff firm and the defendants disclose that the defendants were to supply 20 lakh bricks at Rs. 350. 00 per thousand pieces of bricks as against which, the defendants supplied only 75,000. 00 pieces of bncks. The plaintiff has pleaded in the plaint and also has led evidence through public witness. I that it had made purchase of 19 lakhs pieces of bricks from the open market at a varying price of Rs. 430. 00 to Rs. 450. 00 per thousand pieces of bricks, as there was a failure on the part of the defendants to supply the bricks under the agreement. It is also pleaded and stated in the evidence that in view of the failure of the defendants to supply the bricks as agreed upon, the plaintiff had to make an excess pay-ment of Rs. 1,71,000. 00 per thousand pieces of bricks, as there was a failure on the part of the defendants to supply the bricks under the agreement. It is also pleaded and stated in the evidence that in view of the failure of the defendants to supply the bricks as agreed upon, the plaintiff had to make an excess pay-ment of Rs. 1,71,000. 00 by purchasing 19 lakhs pieces of bricks from the open market at a price varying from Rs. 450. 00 to Rs. 470. 00 per thousand pieces of bricks instead at the rate of Rs. 350. 00 per thousand pieces of bncks agreed upon between the plaintiff and the defendants. According to the plaintiff. the aforesaid purchase of 19 lakh pieces of bricks at an excess payment of Rs. 1. 71. 000. 00 was made after due intimation to the defendants that the said purchases were made by it at the risk and cost of the defendants. ( 11 ) I have carefully gone through the contents of Exhibit a , me agreement entered into between the plaintiff and the defendants. The said. agreement states that the defendants would supply 20 lakh pieces of bricks at Rs. 350. 00 per thousand pieces of bricks to the plaintiff. However, the said document does not contain any stipulation to the effect that on failure of the defendants to supply the aforesaid bricks, the plaintiff would be entitled to purchase the left over bricks from the open market at the risk and cost of the defendants. A bare reading of the aforesaid agreement would show and prove that there was no risk purchase clause in the said agreement I have also scrutinized the evidcnce minutely. Except for making a statement by public witness 1 that the plaintiff had made purchase of 19 lakh pieces of bricks,from the open market at a varying price of Rs. 450. 00 to Rs. 470. 00 per thousand bricks on the failure of the defendants to supply the bricks under the agreement, no supporting document to the aforesaid statement has been produced by the plaintiff. ( 12 ) MY attention was also drawn to the notice issued by the plaintiff to the defendants which is marked as Exhibit "e". The said notice is dated 22. 5. ( 12 ) MY attention was also drawn to the notice issued by the plaintiff to the defendants which is marked as Exhibit "e". The said notice is dated 22. 5. 1986 and states that in order to meet the requirements of the bricks, the plaintiff was forced to buy the said bricks from the open market at rates ranging between Rs. 410 to Rs. 440. 00 per thousand pieces and that the plaintiff would continue to buy the bricks at the risk and cost of the defendants at Rs. 430. 00 per thousand pieces of bricks. The aforesaid statement contained in the notice and also disclosed from the evidence of public witness. 1 does not conclusively prove and establish as to the exact price of the bricks at which the aforesaid purchase of 19 lakh bricks were made. No documentary evidence has been adduced by the plaintiff in support of the aforesaid statement, nor am document was forthcoming to prove and establish the actual price paid by the plaintiff for making the aforesaid purchase of brieks numbering 19 lakhs. Since the plaintiff alleged to have made purchase of the aforesaid 19 lakh bricks at the open market, the receipt for payment made for the aforesaid purchase could and should have been produced by the defendants The plaintiff, therefore, has withheld the best evidence available to decide upon as to the actual damage, if any suffered by the plaintiff because of the inaction and/or non- supply of the bricks by the defendants to the plaintiff. ( 13 ) TAKING the aforesaid factors into consideration, the only conclusion that could be arrived at is that the plaintiff has failed to prove the actual damage suffered by him due to inaction and/or failure on the part of the defendants to supply the bricks as agreed upon between them. ( 14 ) ACCORDINGLY. the aforesaid issues are decided against the plaintiff and in favour of the defendants. ISSUE N0. 6: ( 15 ) AS 1 have held that the plaintiff is entitled to recover an amount of Rs. 60. 650. 00 from the defendants on account of balance outstanding against the amount advanced by the plaintiff to the defendants. I hold that the plaintiff is also entitled to interest at the rate of 18 per cent per annum from the date of institution of the suit till the date of payment. 60. 650. 00 from the defendants on account of balance outstanding against the amount advanced by the plaintiff to the defendants. I hold that the plaintiff is also entitled to interest at the rate of 18 per cent per annum from the date of institution of the suit till the date of payment. ( 16 ) THIS issue is accordingly decided in favour of the plaintiff and against the defendants. ISSUES NO. 7 and 8: ( 17 ) ON the aforesaid findings, the plaintiff is entitled to recover from the defendants Rs. 60. 650. 00on account of outstanding balance against the amount advanced by the plaintiff to the defendants with pendente lite and future interest at the rate of 18 per cent per annum from the date of institution of the suit till the date of realization. ( 18 ) IN the result, the suit is partly decreed holding that the plaintiff is entitled to recover from the defendants an amount of Rs. 60. 650. 00 to be paid by the defendants to the plaintiff along with the interest at the rate of 18 percent per annum from the date of institution of the suit till the date of payment with costs. Let a decree be prepared accordingly.