BHASKAR BHATTACHARYA, J. ( 1 ) THIS appeal is at the instance of a defendant in a suit for recovery of money and is against the judgment and decree dated 28th March, 2003 passed by the Learned Judge, 6th Bench, City Civil Court at calcutta in Money Suit No. 234 of 1993 thereby granting a decree for Rs. 4,09, 840/- with interest @ Rs. 18 per cent per annum from 1st March, 1983 till the date of recovery of the decreed amount. ( 2 ) THE respondent filed the aforesaid suit being Money Suit No. 34 of 1993 against the appellant for recovery of Rs. 4,09,840/- along with interest @ 18 per cent per annum from 1st March, 1993 till recovery of the amount being the price of cost of manufacture of the goods ordered for supply, price of additional equipments, interest on the price of goods and cost or charges for storage of those goods from February, 1991 till February, 1993. ( 3 ) THE case made out by the plaintiff may be summarised thus: (a) The plaintiff carries on business of manufacture and supply of electrical control panel and the defendant is a public limited company which carries on various businesses including manufacture of electrical items and preparation of drawings and execution of projects particularly electrical projects. (b) Pursuant to an invitation or quotation made by or on behalf of defendant for manufacture and supply of six numbers of Relay Control Panels for 33 KV VOLTAS SF- six Breaker Controlling 33 KV 5 MVAR Capacitor, the plaintiff accepted the offer and ultimately a letter of intent dated 4th September, 1989 was issued on behalf of defendant and delivered to the plaintiff. (c) By a letter dated 4th October, 1989 addressed by defendant through its regional Manager, the defendant placed an order with the plaintiff for manufacture and supply of six numbers of Relay Control Panel for 33 kv VOLTAS SP-6 Breaker Controlling 33 KV 5 MVAR Capacitor as per details mentioned therein, within six months from the date of approval of the drawings in respect thereof at the price of Rs. 48,000/-each ex works aggregating to Rs. 48,000/-each ex works aggregating to Rs. 2,88,000/- of which 90 per cent was payable along with taxes duties, if any, within 15 days from the date of despatch and the balance 10 per cent was payable within 30 days from the date of receipt of those Relay Control Panels by defendant or its ultimate customers namely, Orissa State Electricity Board. (d) As the Relay Control Panels ordered by defendant were required to be custom-built, there could not be any type test of the same as are done in respect of some standard products of manufactured goods. The defendant never furnished to the plaintiff any money by way of advance for manufacture and supply of those ordered Relay Control Panels. (e) The defendant gave up and waived the conditions of type tests of the relay Control Panels and/or 5 per cent Bank Guarantee for supply or delivery of the said ordered Relay Control Panels within the stipulated period. (f) The plaintiff accepted the said order without the conditions aforesaid and loaded his shop floor in his workshop for the manufacture of those relay Control Panels and proceeded to make arrangements for manufacture of those panels as per order and advice given by defendant and requested the defendant to send to the plaintiff one set of the necessary drawings duly approved by or on behalf of defendant or the said Orissa State Electricity Board for manufacture of the same at an early date. (g) By letter dated 17th August, 1990 addressed by the defendant, the defendant forwarded and delivered to the plaintiff a copy of each of drawings duly approved by the Orissa State Electricity Board on 8th august, 1990 with a request to send copies of each of the final drawings duly modified and to inform the date of inspection of the materials or the Relay Control Panels prior to despatch. (h) Sometime in the last week of August, 1990, the plaintiff furnished to the defendant the desired copies of each of the said final drawings duly modified, as requested and the defendant accepted the said drawings as final. (h) Sometime in the last week of August, 1990, the plaintiff furnished to the defendant the desired copies of each of the said final drawings duly modified, as requested and the defendant accepted the said drawings as final. (i) On 30th July, 1990, the plaintiff informed the defendant about the progress of the said manufacture then nearing completion and also requested the defendant to make arrangements for stage inspections of the said Relay Control Panel under manufacture with a view to completing the manufacture and making delivery thereof at an early dale. (j) By the end of December, 1990, the plaintiff completed the manufacture of those six numbers Relay Control Panels as ordered and informed the defendant of the said fact of completion of the manufacture and also requested them to make inspection of those articles or to make arrangements for inspection. In spite of receipt of the said information, the defendant and its authorities remained quiet. At last, by letter dated 11th January, 1991 the plaintiff informed the defendant the fact of completion of the manufacture and requested them to inspect or make arrangements for inspection of the said manufactured goods then lying ready. (k) Although the defendant received the aforesaid letter dated 11th January, 1991, none from the side of the defendant came on any date before, on or after 11th January, 1991 for inspection of those Relay Control Panels fitted with additional equipments and accessories then lying ready for inspection and delivery or despatch. (1) In spite of repeated requests made by plaintiff to the defendant from december, 1990 the defendant remained inactive or silent or failed and neglected to make inspection of those manufactured Relay Control panels with additional equipments and accessories which were lying ready for inspection and despatch. (m) Sometime before September, 1992, the plaintiff came to know that the contract between the Orissa State Electricity Board and the defendant had been terminated or cancelled by reason of the defendant's laches and then, the plaintiff detected the reason for inaction or silence of the defendant on the question of inspection and non-delivery. Ultimately, by an order dated 9th July, 1992 addressed on behalf of defendant by its Branch Manager, Calcutta, the defendant expressed its inability to settle the claims of the plaintiff on false pretexts and false allegations. Hence the suit. Ultimately, by an order dated 9th July, 1992 addressed on behalf of defendant by its Branch Manager, Calcutta, the defendant expressed its inability to settle the claims of the plaintiff on false pretexts and false allegations. Hence the suit. ( 4 ) THE aforesaid suit was contested by defendant by filing written statement and the defences of the defendant were as follows: a) Pursuant to the letter of intent dated 4th September, 1989 purchase order dated 4th October, 1989 along with its subsequent amendments dated 27th october, 1989 was placed on the plaintiff by the defendant by which the plaintiff was required to supply the same within six months from the date of approval of drawing after necessary modification in the designs, if necessary, on the plaintiffs furnishing 5 per cent Bank Guarantee to cover the guarantee period i. e. for satisfactory performance of the equipment. b) The price fixed for each panel was Rs. 43, 200/- and all averments made in the plaint contrary to the aforesaid fact were denied. It was denied that there could not be any type of test of Relay Control Panels ordered by the defendant as they were required to be Custom-Built or that no type-test relay Control Panel was prescribed by Indian Standard Institution or Bureau of Indian Standard. The defendant never waived the conditions of type-test of the Relay Control Panel or of 5 per cent Bank Guarantee for supply or delivery within the stipulated period nor was the plaintiff ever requested by the defendant to waive the above requirements. It was further denied that in compliance of the request of the defendant, the plaintiff provided additional equipments and accessories and incurred alleged additional cost of Rs. 5,800/- for each panel aggregating Rs. 34,800a. c) In fact, by a letter dated 8th November, 1990 the plaintiff intimated the defendant company that the manufacture of Relay Control Panel should be completed within seven or eight days i. e. by 15th November, 1990 but the plaintiff has wrongly stated that said manufacture was completed by end of december, 1990 and inspection call was allegedly released by his letter dated 11th January, 1991. d) The actual fact was that the panel was never made ready and the defendant Company's Engineer, viz. d) The actual fact was that the panel was never made ready and the defendant Company's Engineer, viz. Sri Anupam Das visited the workshop of the plaintiff in response to the inspection call dated 11th January, 1991 and found that not even a single panel was in a ready condition. e) In terms of purchase order the plaintiff was to deliver the complete relay Control Panels by 17th February, 1991 which the plaintiff having failed to do, the endurance test as required by Orissa State Electricity board could not be undertaken, as a result of which Orissa State Electricity board terminated the contract finally by its letter dated 25th April, 1992 for which the defendant had to sustain substantial loss for the fault of the plaintiff. ( 5 ) AT the time of hearing, the plaintiff deposed in support of the plaint case while one Mihir Banerjee, the Branch Manager of the defendant and one anupam Das, an erstwhile engineer of the defendant gave evidence in opposing the claim of the plaintiff. ( 6 ) THE learned Trial Judge on consideration of the materials on record disbelieved the defence of the appellant and by relying upon the evidence adduced by the plaintiff decreed the suit. ( 7 ) BEING dissatisfied, the defendant has preferred the present appeal. ( 8 ) MR. Mitra, the learned senior advocate appearing on behalf of the appellant has made three-fold submission in support of this appeal. ( 9 ) FIRST, Mr. Mitra contends that the learned Trial Judge in passing the decree impugned erroneously came to the conclusion that the Orissa State electricity Board cancelled the prayer of extension of time made by the appellant which is not borne out by the materials on record. ( 10 ) SECONDLY, Mr. Mitra contends that from the materials on record the learned Trial Judge ought to have held that the plaintiff did not complete even one of the panels at the time of inspection by Anupam Das, the Engineer of the defendant, and as such, no question of acceptance of those articles by the defendant arose. In other words, Mr. Mitra contends that the plaintiff could not prepare the ordered articles within the time fixed by agreement and consequently, he is not entitled to get the decree as prayed for. ( 11 ) LASTLY, Mr. In other words, Mr. Mitra contends that the plaintiff could not prepare the ordered articles within the time fixed by agreement and consequently, he is not entitled to get the decree as prayed for. ( 11 ) LASTLY, Mr. Mitra contends that the plaintiff having failed to prove that he furnished the type-test report or gave performance guarantee, the learned trial Judge ought to have held that the plaintiff failed to prove his part of contract agreed and therefore, was not entitled to get the relief. ( 12 ) THE aforesaid contentions of Mr. Mitra are seriously disputed by Mr. Chakraborty, the learned Advocate appearing on behalf of plaintiff. Mr. Chakraborty contends that the learned Trial Judge on consideration of the materials on record rightly disbelieved the case of inspection by Anupam Das, an Engineer of the defendant and as such, there is no reason of setting aside that finding of fact recorded by the learned Trial Judge. Mr. Chakraborty further draws attention of this Court to Ext. A-7 showing that the Orissa State electricity Board really cancelled the defendant's order long before and that is the reason, the defendant did not show any eagerness to even inspect the property. ( 13 ) AS regards non-compliance of the clause of furnishing test report or bank guarantee, Mr. Chakraborty submits that those pleas have not been substantiated by the defendant in evidence and as such, the learned Trial Judge rightly decreed the suit. ( 14 ) AFTER hearing the learned counsel for the parties and after going through the materials on record we find that on 21st July, 1989 the respondent submitted quotation. As it appears from Ext. 30, it was specifically proposed that delivery would be made within six months after the receipt of final approved drawing from the appellant. It appears from Ext. A that on 4th September, 1989, the letter of intent was issued by the appellant in terms of the quotation letter dated 21st July, 1989. It further appears that on 7th September, 1989 respondent issued a letter to the appellant seeking further clarification since much time might be consumed for getting delivery of EE Make Relay from English Electric factory at Madras. It was also intimated that if Easun Make Relay" was issued in the Relay Control Panel, it could be made available earlier. It further appears that on 7th September, 1989 respondent issued a letter to the appellant seeking further clarification since much time might be consumed for getting delivery of EE Make Relay from English Electric factory at Madras. It was also intimated that if Easun Make Relay" was issued in the Relay Control Panel, it could be made available earlier. It was also communicated that "easun Make Relay" was much costlier than EE Make Relay. The appellant, however, did not object to the price quoted in Ext. 28 but ultimately issued final order confirming user of Easun Make Relay in the Relay control Panels. It reveals from the evidence that on 4th October, 1989 the appellant in furtherance to the letter of intent dated 4th September, 1989 issued order in favour of respondent and in the said order the appellant quoted that ee and Easun Reyrolle relays might be used. Ultimately, the appellant sent the approved drawing on 17th August, 1990 as it appears from Ext - 26 and thus, according to the contract, the delivery of the articles were required to be made within February 18, 1991. It appears from Ext. A-5, the letter written by the respondent to the appellant that he complained that some electrical items were yet to be delivered by the appellant and it was made clear that if those electrical items were supplied, the relay control panels would be made ready within seven or eight days thereafter and at that point of time, the respondent had still 101 days in hand for giving final delivery. Prior to that on October 5, 1990 the respondent issued letter to the appellant (Ext-25) informing progress of the work up to 70% and request was made for sending representative for inspection and also for making some payment when the respondent had 104 days in his hand to complete delivery. After completing the manufacture, the respondent on January 11, 1991 invited the appellant to inspect the materials and receipt of such letter has not been disputed. ( 15 ) IT appears from the letter dated 31st October, 1990 (Ext.-24) issued by the appellant to the Orissa State Electricity Board that appellant had sought for extension of the delivery period up to 18th December, 1990. It was also made clear that routine acceptance test would be conducted on capacitor only. ( 15 ) IT appears from the letter dated 31st October, 1990 (Ext.-24) issued by the appellant to the Orissa State Electricity Board that appellant had sought for extension of the delivery period up to 18th December, 1990. It was also made clear that routine acceptance test would be conducted on capacitor only. In terms of the said request of the appellant made in the letter dated 31st October, 1990, the Orissa State Electricity Board did not issue any inspection call letter by their accredited authority since the Orissa State Electricity Board refused to extend the time and cancelled the order as it appears from Ext - A-7 the letter dated April 25,1992 in which the Orissa State Electricity Board in clear terms reminded the appellant that the time schedule for delivery expired long back on September 1,1990 and as such, the purchase order was cancelled. The appellant could not produce any materials before Court showing that its request for extension of time made in Ext- 24 was accepted and the time was extended. ( 16 ) FROM the aforesaid fact it is clear that the appellant was aware of the fact that the Orissa State Electricity Board had not extended the time of delivery for their fault and cancelled the order and accordingly, did not respond to the letters of inspection issued by the respondent. ( 17 ) FROM the fact that Anupam Das, the DW-2, did not give any notice of the alleged inspection to the respondent and that the result of alleged inspection was not even communicated to the respondent within one year from the date of alleged inspection, it is apparent that the story of sending Anupam Das for inspection was a concocted one made out by the appellant. At this stage, it may not be out of place to mention here that DW-1 in his examination-in-chief admitted that there was no inspection of the ordered Relay Control Panels and that Anupam Das did not submit any inspection report. He even admitted that he was not in a position to give the date of inspection at that time and the visiting report was neither filed in the Court nor discovered at the stage of affidavit of document. He even admitted that he was not in a position to give the date of inspection at that time and the visiting report was neither filed in the Court nor discovered at the stage of affidavit of document. It is absurd to suggest that inspection was made without giving any intimation or that the alleged deficiency found on inspection was not even communicated to the defendant although about one month time was there to remove the shortfall. Thus, the inspection report was subsequently manufactured by the defendant only to give a false impression as if inspection was held. ( 18 ) THEREFORE, it is clear that although the respondent completed the manufactured panels within the time fixed by the agreement, it is the appellant who did not care to accept delivery as the Orissa State Electricity Board had cancelled their order and as such, the findings of the learned Trial Judge that the respondent performed his part of duty is quite reasonable and there is no scope of interference with the said finding based on correct appreciation of the evidence on record. ( 19 ) WE are also not impressed by the submission of Mr. Mitra, learned counsel appearing on behalf of appellant that the suit should be dismissed as the respondent has failed to prove that he gave five per cent of amount of guarantee money. In our view, the witnesses for the defendant having failed to prove that the defendant ever insisted for five per cent amount as performance guarantee, such plea is not tenable. From the evidence of the plaintiff we are convinced that the said provision was waived. It is also established that merely because at one stage plaintiff demanded certain amount of advance, for that reason the defendant could not cancel the contract awarded in favour of the plaintiff. At least no material has been produced showing that on those grounds the contract was cancelled; on the other hand, it appears from record that even when inspection was asked for, the defendant did not say that the agreement had already been cancelled for non-performance of those alleged essential parts of agreement or for demanding advance payment; on the contrary, it-tried to establish at the time of trial that the defendant's Engineer had inspected the property as if the contract was subsisting but the plaintiff was unable to complete the materials. We have already held that such plea has been found to be a deliberate false one. As it is proved beyond doubt that the defendant even did not inspect the materials ready for delivery, no question of failure on the part of the plaintiff to give type-test or furnish performance guarantee arises. ( 20 ) ON consideration of the entire materials on record, we, thus, find that the learned Trial Judge in the facts of the present case rightly came to the conclusion that the plaintiff performed his part of contract but it is the defendant who backed out by raising sham disputes and deliberately did not accept the finished materials as the Orissa State Electricity Board had already cancelled the agreement for the laches of the defendant. ( 21 ) WE, therefore, find no reason to interfere with the judgment and decree passed by the learned Trial Judge. The appeal is, thus, devoid of any substance and is dismissed with costs which we assess at 300 G. Ms. Rajendra Nath Sinha, J. : I agree. Appeal dismissed.