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Madhya Pradesh High Court · body

2006 DIGILAW 218 (MP)

Shivam Marketing Company v. State of M. P.

2006-02-07

SHANTANU KEMKAR

body2006
ORDER 1. The petitioner a proprietorship firm submitted its tender in response to the notice issued by the 4th respondent for supply of Pre-School Kits (toys for the children). The petitioner's tender was accepted. As per the condition in the agreement entered between the petitioner and the 4th respondent the material was to be compulsorily supplied on or before 10.10.2001 and the same shall not be accepted by the respondents after 10.10.2001. 2. The petitioner contends that on account of certain modifications suggested by the respondents, in the material to be supplied, anticipating the likelihood of delay, the petitioner wrote letter on 5.10.2001 to the 4th respondent seeking extension of time to supply the material up to the last week of October. Since the material was not supplied in the extended time the respondents levied surcharge @ 2% for 7 days for delayed supply. The petitioner stated that delay was not deliberate and having extended the time up to 17.10.2001 and accepted the material thereafter the respondents could not have levied the penalty on the petitioner. The petitioner challenged the letter dated 25.1.2002 by which the respondents deducted a sum of Rs. 1;63,143/- @ 20/0 per day for maximum 7 days from the payments made to the petitioner on account of delay in supply of the material. 3. In the return, the respondents have justified the deductions of the amount of Rs. 1,63,143/- on the ground that as per the agreement (Annexure A-3) the petitioner was bound to supply the material on or before 10.10.2001. However, on petitioner's request the time to supply was extended up to 17.10.2001 but even in the extended period of 7 days the petitioner failed to supply the material. As a result, the respondents informed to the petitioner vide letter dated 19.10.2001 (Annexure R-8) stating therein that the petitioner has committed the breach of agreement by not supplying the material even in the extended period, as such he would be liable for surcharge @ 2% per day for maximum 7 days from 20.10.2001 to be deducted from his payments. It is stated that after receipt of this letter dated 19.10.2001 (Annexure R-8), the petitioner supplied the material, which was received by them on 1.11.2001, thus the petitioner has no right to challenge the levy of surcharge of late supply of the material. 4. It is stated that after receipt of this letter dated 19.10.2001 (Annexure R-8), the petitioner supplied the material, which was received by them on 1.11.2001, thus the petitioner has no right to challenge the levy of surcharge of late supply of the material. 4. Having heard the learned counsel for the parties, only question requires to be decided in this petition is as to whether the respondents were entitled to recover surcharge from the petitioner or not. 5. Admittedly, as per the agreement (Annexure A-3) the material was to be supplied by the petitioner to the respondents on or before 10.10.2001. The petitioner by letter dated 5.10.2001 sought extension of time to supply the same. Its request for extension of time was considered and the time was extended up to 17.10.2001. Even in this extended period the petitioner could not supply the goods. As a result the respondents wrote a letter on 19.10.2001 to the petitioner stating therein that since he has failed to supply the material even in the extended period he would be liable for surcharge @ 2% per day from 20.10.2001 subject to maximum for 7 days. The receipt of this letter dated 19.10.2001 has not been disputed by the petitioner. The petitioner did not object the levying of surcharge vide the aforesaid letter, on the other hand acted upon it by supplying the material. Thus, having not disputed and/or objected and having supplied the material even on receipt of the letter dated 19.10.2001, it is not open for the petitioner to challenge the imposition of surcharge. If the petitioner was having any grievance he should have protested it immediately or should not have supplied the material. Having not done so and having acted upon it the petitioner cannot absolve from the liability to incur the surcharge for the delayed delivery of material. 6. In this view of the matter, I find no ground to interfere in this writ petition. Accordingly, the writ petition is dismissed. No order as to cost.