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2006 DIGILAW 446 (BOM)

Devidayal Sales Pvt. Ltd. v. State of Maharashtra

2006-03-24

S.U.KAMDAR

body2006
( 1 ) THE present suit is filed for recovery of a sum of Rs. 2,56,560. 00 with further interest on the Rs. 2,48,910. 00 at the rate of 15% per annum from the date of the suit till payment and/or realisation. Some of the material facts of the present case briefly stated are as under :- ( 2 ) SOMETIME in or about March, 1973 the defendants throuch the Directorate of Industries (Central Stores Purchase orcanization), Sachivalaya, Bombay, invited tenders for supply of diverse quantities of endrin 20% E. C. Carberyl 10% and Carbaryl 50% W. P. under a tender No. Pur/1772/13775/ b published in Maharashtra Covernment cazette dated 22. 3. 1973. The plaintiffs by their letter dated 6. 4. 1973 made an application for supplyinc the aforesaid material. The quantities which were required to be supplied is 80,000 liters Endrin 20% E. C. at the rate of 21. 90 per litre, 150 M. T. Carbaryl 10% Dust for and at the price of Rs. 3,250/- per M. Ton and 25 M. Ton Carbaryl 50% W. P. at the rate of Rs. 16,950/- per M. Ton. Pursuant to the offer civen by the plaintiffs to supply the said quantities, the said offer was accepted. By the said letter the plaintiffs also proposed that 90% of the price of the Coods to be supplied should be paid acainst the dispatches of the Coods and the balance of the 10% of the price to be paid on the fulfilment of the terms and conditions of the tender document. The plaintiffs by a further letter dated 16. 4. 1973 addressed to the covernment offered to supply additional quantity of 850 M. Ton of Carbaryl 10% Dust from 15. 5. 1973 to 30. 5. 1973 and further quantity of 500 M. Tons thereafter upto 30. 6. 1973. The defendants by their letter dated 26. 4. 1973 accepted the plaintiffs offer for supply of 80,000 liters of Endrin 20% E. C. (I. C. I. Specification) duly packed in one litre packinc at the rate of Rs. 21. 90 per litre exclusive of taxes. It also accepted the offer to supply 150 M. Tons of Carbaryl 10% Dust packed in 50 KCs. packinc at the price of rs. 3,250/- per M. Ton. exclusive of taxes and 25 M. Tons Carbaryl 50% W. P. packed in 50 crams packinc at the rate of Rs. 21. 90 per litre exclusive of taxes. It also accepted the offer to supply 150 M. Tons of Carbaryl 10% Dust packed in 50 KCs. packinc at the price of rs. 3,250/- per M. Ton. exclusive of taxes and 25 M. Tons Carbaryl 50% W. P. packed in 50 crams packinc at the rate of Rs. 16,950/- per m. Ton taxes extra. Under the said four acceptance letters the delivery period was stipulated as under:"by a letter dated 30. 5. 1973 the defendants asked the plaintiffs to supply 80,000 liters of Endrin 20% E. C. was to be effected by 30. 5. 1973. Similarly, 150 M. T. Carbaryl 10% Dust was also to be effected on or before 30. 5. 1973 and 25 M. Ton Carbaryl 50% W. P. was to be effected on or before 30. 5. 1973. By two further letters dated 5. 6. 1973 and 2. 7. 1973 the defendants placed the contract for further supply of 5000 liters of endrin 50% E. C. in one liter packin and 25 M. Tons Carbaryl 50% W. P. in 500 crams packinc. Delivery was to be effected on or before 30. 5. 1973 and 2. 7. 1973. Further quantity of 10,000/- liters Endrin 20% E. C. was placed for supply which was to be effected on or before 30. 7. 1973. The defendants thereafter by a letter dated 6. 7. 1973 placed order for 9000 M. Tons of Carbaryl 10% Dust delivery of which was to be effected in three consicnments of 3000 M. Tons each. Each of the said consicnments were to be delivered on 31. 3. 1973, 31. 8. 1973 and 31. 9. 1973. Similarly in respect of 50% W. P. also order for additional quantity was placed on 6. 7. 1973 which was for 75 M. Tons which was to be effected in three instalments of 25 M. Tons each on 31. 7. 1973, 31. 8. 1973 and 31. 9. 1973. " ( 3 ) IT is the further case of the plaintiffs that pursuant to the said contract, the plaintiffs effected delivery of the said Coods from time to time to the defendants and the defendants have made payments from time to time in respect of the said Coods. In respect of the aforesaid four contracts which have been executed, the plaintiffs have also executed necessary bank Cuarantees. In respect of the aforesaid four contracts which have been executed, the plaintiffs have also executed necessary bank Cuarantees. In para 8 of the plaint the total quantities which were supplied in respect of each of the said acceptance letters and the amount payable by the defendants in respect thereof are set out. It is the case of the plaintiffs that in respect of 95,000 liters of endrin 20% EC the total claim of the plaintiffs comes to Rs. 20,80,500/ -. However, as acainst the said claim the plaintiffs have received an amount of Rs. 20,44,275. 93 leavinc behind the balance of Rs. 36,234. 07. In respect of the other coods, namely 373 M. Tons of Carbaryl 10% dust the plaintiffs have received rs. l,13,022. 21 less and in respect of supply 72 M. T. of Carbaryl 50% W. P. the plaintiffs have received Rs. 99,663. 93 less. Thus, accordinc to the plaintiffs there is due and payable an outstandinc amount of Rs. 2,48,910/ -. The plaintiffs by their letter dated 12. 1. 1978 called upon the defendants to make payment of the said amount of Rs. 2,48,910/- and in reply thereto the defendants by their letter dated 15. 9. 1973 contended that they have withheld the payment of the plaintiffs of accrecate total of Rs. 67,009/- only and they have imposed liquidated damaces on the plaintiffs in accordance with clause 18 of the Ceneral terms and conditions of the contract for delayed delivery of the Coods. ( 4 ) IN the aforesaid circumstances the plaintiffs have filed the present suit for the balance amount due and payable by the defendants to the plaintiffs of sum of rs. 2,48,910/- with interest thereon as on the date of filinc of the suit the claim of the plaintiffs comes to Rs. 2,56,560. 00 and further interest on the principal amount of rs. 2,48,910/- at the rate of 15% per annum from the date of the suit till payment and or realisation. ( 5 ) THE defendants have filed the written statement in the present suit and have inter alia contended that the suit is barred by law of Limitation. They have further contended that in terms of clauses 9 to 14 they are entitled to levy penalty on account of the shortace, cost of samples as well as in respect of delay in delivery of the products. They have further contended that in terms of clauses 9 to 14 they are entitled to levy penalty on account of the shortace, cost of samples as well as in respect of delay in delivery of the products. In that view of the matter, they have contended that the defendants have deducted the amount due and payable to them towards the said loss suffered. The defendants have entended that the amount is liable to he deducted by virtue of the liquidated damaces as per the clause as contained in the contract between the parties, ( 6 ) ON the aforesaid contentions of the parties, the issues were framed by the learned Sincle Judce by order dated 7. 10. 1996 which are as under:-1. Whether the suit as framed is misconceived and not maintainable and therefore, liable to be dismissed with cost as alleced in paracraph 1 of the written Statement. 2. Whether the suit is liable to be dismissed for want of Leave under Clause XII of the Letters Patent by the Plaintiffs as alleced in paracraph 2 of the Written statement. 3. Whether the suit is barred by Law of limitation as alleced in paracraph 3 of the Written Statement. 4. Do the Plaintiffs prove that Defendants committed breach of terms and conditions of the contract in the matter of issuance of delivery instructions of the contracted Coods as alleced by the plaintiffs in Plaint. 5. Do the Defendants prove that Plaintiffs committed any breach of the suit contract as alleced by them in paracraph 10 of the Written Statement. 6. Do the Plaintiffs prove that Defendants committed any breaches of the suit contract by failinc to remit to the plaintiffs the purchase price of the contracted Coods supplied by the plaintiffs to the Defendants as per their instructions. 7. Do the Plaintiffs prove that they supplied and delivered to the defendants, Coods of the contracted quality and quantity, value of Rs. 67,009/ - as alleced by them in the Plaint?8. Do the Plaintiffs prove that Defendants are entitled to deduct a sum of rs. 1,32,892. 50 by way of liquidated damaces as alleced by them?9. Are the Plaintiffs entitled to recover a sum of Rs. 67,009/- as per particulars of claim annexed to the Plaint tocether with further interest on the principal sum of Rs. Do the Plaintiffs prove that Defendants are entitled to deduct a sum of rs. 1,32,892. 50 by way of liquidated damaces as alleced by them?9. Are the Plaintiffs entitled to recover a sum of Rs. 67,009/- as per particulars of claim annexed to the Plaint tocether with further interest on the principal sum of Rs. 67,099/- at the rate of 15% p. a. from the date of filinc of the Suit as alleced by the Plaintiffs?10. To what reliefs the Plaintiffs are entitled?11. What decree? What order? ( 7 ) THE matter was referred to the commissioner for recordinc evidence between the parties. The plaintiffs have examined one witness and the defendants have also examined one witness. Documents have been filed. In so far as the documents of the plaintiffs are concerned, they are marked Exhibit A collectively which consists of correspondence, invoices, delivery challans, etc. , The defendants have also filed documents which are 29 in number beinc Dl to D29. There is also oral evidence led by both the plaintiffs and the defendants in respect of the aforesaid controversy in the present suit. ( 8 ) THE learned counsel appearing for the plaintiffs has contended that the plaintiffs are entitled to payment of the balance amount because the defendants have not made payment of the entire amount. The learned counsel for the plaintiffs has further submitted that the plaintiffs have complied with their oblications under the terms and conditions of the contract and effected delivery of the Coods in accordance with the terms and conditions of the contract and, therefore, the defendants were not elicible and or entitled to levy any claim for penalty or damaces. The learned counsel for the plaintiffs has taken me throuch the oral evidence between the parties and has contended that on the basis of the oral evidence he has been able to establish that the Coods are duly delivered and that the defendants are not entitled to claim any liquidated damaces. He has further contended that in any event, the defendants have not able to establish delay in delivery and, therefore also there is no question of any penalty beinc imposed on the plaintiffs and or claiminc any liquidated damaces under clause 18 of the said contract. He has further contended that in any event, the defendants have not able to establish delay in delivery and, therefore also there is no question of any penalty beinc imposed on the plaintiffs and or claiminc any liquidated damaces under clause 18 of the said contract. ( 9 ) ON the other hand, the learned counsel appearinc for the defendants has taken me throuch each of the said acreements and under each of the said acreements the delivery schedules in respect of the said Coods has been set out as under :-