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2002 DIGILAW 26 (JHR)

Hooghly Marine and Engineering Company, Calcutta v. Bharat Coking Coal Ltd.

2002-01-09

GURUSHARAN SHARMA

body2002
Judgment Gurusharan Sharma, J.-Defendant is appellant. Plaintiff instituted Money Suit No. 43 of 1984 for realisation of a sum of Rs. 73,938/- as per accounts given in Schedule to the plaint with interest from the defendant. 2. According to the plaintiff, a tender was invited for supply of 250 KVA transformer for M/s. Dughda Coal Washery, Dhanbad. Defendant Company submitted its tender dated 3.7.1981 (Exhibit 2), which was accepted and on 24.8.1981 purchase order valued at Rs. 37,950/- was issued. Defendant supplied the transformer in question on 15.7.1982 and it was commissioned on the same date. However, after commissioning it started giving trouble with out-put voltage of only 160 volts, instead of 400 Volts against in-put supply of 11000V, and later on from 23.8.1982 it completely failed to give any voltage. Inspite of several request-letters, defendant neither replaced the said transformer nor rectified the defects found therein. Plaintiff also asserted that instead of copper winding, aluminium winding was fitted in the transformer, which was against required specification. 3. Plaintiff in the suit claimed Rs. 39,668/-, being price of the transformer for which Purchase Order on 23.8.1981 was issued. Plaintiff also claimed Rs. 30,650/-, being cost of repairs of the transformer and interest thereon from 26.10.1981 till date of filing of the suit @ 18% per annum amounting to Rs. 3,600.20 paise. Hence, total claim of Rs. 73,938/- was made. 4. Defendant in its written statement completely denied to have entered into transaction with the plaintiff including submission of tender, supply of transformer in question and receipt of the aforesaid amount as price thereof. It also denied receipt of any letter from the plaintiff asking for either to replace the transformer or for its repairs. 5. It is relevant to state that prior to filing the suit, plaintiff referred the dispute to the Arbitrator, Sri. S. Some, but defendant by writing letters denied existence of any arbitration clause and hence, plaintiff had to file the money suit. 6. Plaintiff in order to substantiate its claim produced original letter inviting tender with instruction to the tenderers, quotations including the original tender submitted by the defendant, Work Order, inspection certificate, cash vouchers, bills and the correspondence letters in respect of replacement of the transformer or its repairs, which were marked as Exhibits 1 to 8. 7. 6. Plaintiff in order to substantiate its claim produced original letter inviting tender with instruction to the tenderers, quotations including the original tender submitted by the defendant, Work Order, inspection certificate, cash vouchers, bills and the correspondence letters in respect of replacement of the transformer or its repairs, which were marked as Exhibits 1 to 8. 7. On the other hand, one Sunil Kumar Sen claiming himself to be the sole proprietor of M/s. Hoogly Marine Engineering Company with its office and workshop at Babughat P.O. Bhadreshwar, district Hoogly in West Bengal denied the transaction in question including receipt of any amount by way of price for the transformer in question. But he failed to produce any evidence to support the claim, namely, documents of the relevant period, if any, to prove that Mr. S.K. Sarkar was not the manager and he was looking after the affairs himself as sole proprietor as well as his bank accounts relating to the Company to show that the aforesaid amount of Rs. 37,950/- by way of price of transformer in question was never received or credited to the bank account of the Company. 8. Trial court, in my opinion, in the aforesaid circumstance rightly observed that all the Exhibits, i.e. Exhibits 1 to 8 series, produced by the plaintiff show that tender was invited for supply of transformer against which supply was made by the defendant and bill was submitted therefor and payment was made by cheque through State Bank of India, ISM Branch, Dhanbad, to the defendant-company. 9. In ordinary course of business it was presumed that the aforesaid amount relating to the price of the transformer was paid through bank. Trial court, in my opinion, rightly decided that the plaintiff was not entitled to recover both, namely, price of the transformer amounting to Rs. 37,950/ as well as the cost of repairs of Rs. 30,650/ and in view of the fact that the plaintiff got the said transformer in question repaired according to the specification and was using the same, the claim for recovery of the price of the transformer in question was not justified. Consequently, trial court also reduced the rate of interest from 18% to 12%, and the suit was, accordingly, decreed in part. 10. I, therefore, find no reason to interfere with the impugned judgmen1 and decree. 11. Consequently, trial court also reduced the rate of interest from 18% to 12%, and the suit was, accordingly, decreed in part. 10. I, therefore, find no reason to interfere with the impugned judgmen1 and decree. 11. In the result, this Appeal is dismissed, having no merit, with cost assessed at Rs. 1000/-. Lower court records may be sent down.