SANJAY KISHAN KAUL, J. ( 1 ) THE plaintiff, a limited company, filed a suit for recovery of Rs. 22,66,238. 56 along with future interest @ 12% p. a. The plaint states that the plaintiff is a premier manufacturer of compressors including screw compressors. The plaintiff placed an order dated 07. 05. 1981 in pursuance to a quotation of the defendant dated 12. 12. 1979 for purchase of 60 radiator-cum-oil coolers ( for short, 'rocs') for 300 cfm screw compressors with copper fins and oil coolers and brass tube in both at Rs. 6,825/- per unit. The delivery was to be effected from May, 1981 and 15 such ROCs were to be supplied every month. The payment was to be made at delhi through negotiation of documents by New Bank of India, Connaught Circus, new Delh. It is the case of the plaintiff that the defendant had given quality guarantee for all goods for a minimum period of 12 months from the date of receipt of the material. The material on receipt in the factory was to be inspected as per the drawing or approved sample by the plaintiff and while assembling the compressors, the plaintiff had the further right to reject such material as was found defective. The decision about such rejection by the plaintiff was stated to be final and binding on the defendant. The plaintiff also claims to have had the option to cancel the order or any part thereof if delivery was not made within time. There was also a specific clause in respect to disputes and jurisdiction to the effect that only civil courts at Delhi would have jurisdiction in the matter. ( 2 ) THE defendant is stated to have sent a telex on 09. 05. 1981 suggesting a revision of the price to Rs. 8,850/- and that they would deliver 10 such ROCs per month from June. This was followed up by a letter of 10. 05. 1981 where the defendant quoted the price of Rs. 8,850/- per unit F. O. R. destination. The price was confirmed by the plaintiff. The supplies made by the defendant were found to be defective inasmuch as the complaints started coming in of oil leakage in these ROCs. Small leakages also occurred during testing by the plaintiff. 05. 1981 where the defendant quoted the price of Rs. 8,850/- per unit F. O. R. destination. The price was confirmed by the plaintiff. The supplies made by the defendant were found to be defective inasmuch as the complaints started coming in of oil leakage in these ROCs. Small leakages also occurred during testing by the plaintiff. This resulted in communications between the parties and the defendant even deputed persons to rectify the defects and replaced some oil coolers. ( 3 ) THE grievance of the plaintiff is that the defendant supplied defective oil coolers and out of the total 58 such coolers supplied, 51 started leaking and were found to be defective. The remaining 7 were lying with the plaintiff along with the defective ones at the risk and cost of the defendant. The plaintiff claims that though he had returned 20 of the defective coolers to the defendant, no replacement was provided and the plaintiff had to carry out risk purchase for the benefit of its customers. Not only that, by the letter dated 10. 03. 1982, the defendant refused to replace the ROCs. ( 4 ) THE plaintiff claims that the total price paid for the defective 58 ROCs is to the tune of Rs. 5,78,538. 56. The plaintiff further claims to have spent an amount of Rs. 2,00,000/- in expenses for attempting to remedy the defects. The risk purchase made from the market was stated to be to the tune of rs. 14,87,700/ -. Thus, the suit was filed for the said total amount along with future interest. It may be noticed at this stage that during the course of arguments, learned counsel for the plaintiff had stated that the figure of rs. 14,87,700/- mentioned in the plaint appears to be a mistake and the amount ought to have been Rs. 8,35,513. 53. ( 5 ) THE suit was resisted by the defendant, who even filed the counter claim. The defendant disputed the jurisdiction of this Court and claimed that the plaintiff had suppressed material facts from this Court. The contract between the parties is not denied, but the terms and conditions as set out by the plaintiff have been denied since it is the case of the defendant that the same were never signed by the defendant. The defendant disputed the jurisdiction of this Court and claimed that the plaintiff had suppressed material facts from this Court. The contract between the parties is not denied, but the terms and conditions as set out by the plaintiff have been denied since it is the case of the defendant that the same were never signed by the defendant. It is the case of the defendant that the ROCs were made as per the specifications and drawings of the plaintiff and the defendant could not be faulted on that account. The first time the complaint stated to have been made was only on 03. 10. 1981 and on inspection the leakage was found due to mismatching of ROC to the higher working pressure of the plaintiff's compressors. The plaintiff directed the defendant to continue production even after the so-called problem and, thus, the defendant claims to be absolved of any responsibility on account of alleged defects. The defendant has denied any breach of warranty. The case of the defendant, thus, is that the ROCs were developed by the defendant according to the drawings, designs and other parameters furnished by the plaintiff, samples were supplied to the plaintiff, the ROCs were accepted by the plaintiff after testing and the leakage was discovered because of the mismatching in the coolers and the compressors intended to be used at much higher working pressure, the resultant change in specification by the plaintiff on realisation of its own fault and the absence of any manufacturing defect in the ROCs. ( 6 ) THE defendant has also filed a counter claim for Rs. 2,84,500/- along with future interest @ 18% p. a. This is stated to be the price of 12 such ROCs which the defendant was compelled to call back because of non-payment by the plaintiff and on account of unreasonable and unjust demand to replace free of cost all oil coolers straight to their customers. ( 7 ) ON the pleadings of the parties, the following issues were framed on 18. 08. ( 7 ) ON the pleadings of the parties, the following issues were framed on 18. 08. 1987 :- "issues : (1) Whether the plaint in this suit has been signed and verified by a duly authorised person" (2) Whether this Court has no jurisdiction to entertain this suit" (3) Whether the radiators-cum-coolers supplied by the defendant to the plaintiff were defective as alleged" (4) Whether the plaintiff have used the ROCs for a purpose for which it was not intended as alleged and its effect" (5) Whether the ROCs supplied by the defendants had been accepted by the plaintiff after inspection and without objection, if so what is the effect thereof" (6) Whether the plaintiff is entitled to claim damages as alleged, if so, how much and on what count" (7) Whether the defendant is entitled to claim the price of 12 ROCs for failure of the plaintiff to take delivery thereof" (8) Whether the plaintiff was under obligation to take delivery of the 12 ROCs for which the defendant has now submitted a counter claim" (9) Whether the plaintiffs or defendants are entitled to claim any interest in respect of their respective claims" (10) Relief. " ( 8 ) THE parties led their respective evidence and examined witnesses in support of their case. ( 9 ) LEARNED counsel for the plaintiff was heard on 23. 05. 2007. In fact, on 06. 03. 2007, the suit was directed to be set down for hearing in the Finals List commencing from 16. 04. 2007 to enable the parties to be ready with the matter and the parties were directed to file short synopsis. Only the plaintiff filed the synopsis. None appeared during the course of hearing on 23. 05. 2007 for the defendant, but adverse orders were deferred and the matter was again listed for 24. 05. 2007. On 24. 05. 2007, learned counsel for the defendant put in appearance and again requested for an adjournment which was declined and the judgment was reserved. There was no justification for the absence of the defendant and their unpreparedness of the matter especially where the matter is so old. The defendant earlier was proceeded ex parte on two occasions but the ex parte proceedings were set aside at the request of the defendant. There was no justification for the absence of the defendant and their unpreparedness of the matter especially where the matter is so old. The defendant earlier was proceeded ex parte on two occasions but the ex parte proceedings were set aside at the request of the defendant. ( 10 ) ON perusal of the pleadings, documents and the record of the case and on the basis of the submissions advanced by learned counsel for the plaintiff, the findings on the issues are as under. Issue No. 1 : Whether the plaint in this suit has been signed and verified by a duly authorised person" ( 11 ) LEARNED counsel for the plaintiff has drawn the attention of this Court to exhibit PW-1/2, which is the Memorandum and Articles of Association, wherein article 123 declares that the Managing Director and the Joint Managing Director shall always have the following powers jointly and severally and thereafter various powers are specified. Clause 17 of the said Article reads as under :- "123. Notwithstanding anything to the contrary in Article No. 122 and other powers conferred by these Articles, it is hereby expressly declared that the Managing Director and the Joint Managing Director shall always subject to the provisions of Act, have the following powers jointly and severally, that is to say : (17) To institute, prosecute, compound, defend, compromise, withdraw or abandon any legal proceedings by or against the Company or its officers or otherwise concerning the affairs of the Company and to act on behalf of the company in all matters relating to insolvencies or liquidations and to apply for and obtain letters of administration with or without will annexed to the estate of persons with whom the company have dealings. " ( 12 ) LEARNED counsel for the plaintiff points out that the suit has been instituted through Shri J. C. Khosla, Joint Managing Director and it is, thus, claimed that the suit has been properly instituted. ( 13 ) SHRI R. K. Rastogi appeared in the witness box as PW-1 and stated that he was appointed as Deputy Manager (Co-ordination) on 15. 02. 1988 and thereafter in april, 1994 took over as General Manager (Administration) and Company Secretary and has subsequently retired on 31. 01. 1998. The said witness brought the original Certificate of Incorporation and certified copy of the same was exhibited as Exhibit PW-1/1. 02. 1988 and thereafter in april, 1994 took over as General Manager (Administration) and Company Secretary and has subsequently retired on 31. 01. 1998. The said witness brought the original Certificate of Incorporation and certified copy of the same was exhibited as Exhibit PW-1/1. The Memorandum and Articles of Association were exhibited as PW-1/2. The witness identified the signatures of Shri J. C. Khosla. The plaintiff has, thus, been able to prove the proper institution of the suit. The issue is accordingly answered in favour of the plaintiff and against the defendant. Issue No. 2 : Whether this Court has no jurisdiction to entertain this suit" ( 14 ) THE case of the plaintiff is that the payments were to be made through a bank at Delhi and, thus, Delhi was at least one of the courts, which would have territorial jurisdiction in the matter. Not only that, by agreement, the parties agreed to confer the jurisdiction on the Delhi Courts. The aforesaid aspect, however, requires examination of two material documents. The first is Exhibit p-1 which is the purchase order. The office copy of the purchase order sets out that the mode of payment is 100% against dispatch documents through the bankers m/s. New Bank of India, Connaught Circus, New Delh. The goods had to be dispatched by rail to New Delhi / Faridabad Railway Station. There is, however, a dispute as to whether there are any other terms and conditions printed on the back of the Exhibit P-1 in the copies sent to the defendant, since this was disputed by the defendant. In this behalf, the relevant document is Exhibit pw-4/1. This is a format of the purchase order claimed to be sent to the defendant. It was, thus, the case of the plaintiff that the general terms and conditions contained at the back of the said purchase order were not contained in the copy retained by the plaintiff. The said general terms and conditions are as under:- "general TERMS and CONDITIONS OF PURCHASE 1. DRAWING : All the components shall be made as per drawing. A sample, if given, is for guidance. In case of doubt supplier should contact us before supply/manufacture. The said general terms and conditions are as under:- "general TERMS and CONDITIONS OF PURCHASE 1. DRAWING : All the components shall be made as per drawing. A sample, if given, is for guidance. In case of doubt supplier should contact us before supply/manufacture. The supplier shall undertake not to pass our drawing or samples of items manufactured as per our drawing or our samples provided to him to any other party or sub contractor without our prior written permission. 2. ACCEPTANCE : Duplicate copy of this order should be returned within 7 days from the date of its issue in token of acceptance of the order. 3. QUALITY GUARANTEE : The supplier shall give a quality guarantee for all goods for a minimum period of 12 months from the date of receipt of the material in our Works. 4. EXCESS SUPPLY : Supply of the material must not exceed the ordered quantity without our written consent as otherwise excess material will be returned entirely at the suppliers risk and cost. 5. PACKING : Sometimes the R/rs when received contain the following remarks:-(a) Not packed as per Railway Rules. (b) P. C. 17 is not complied with. All our consignments are insured and in case R/r or G/r is received with the above remarks and consignment reaches the destination in damaged condition the insurance Company does not accept the claim. Therefore the supplier shall ensure that whenever any consignment is despatched the same is packed in a strong railworthy packing and as per Railway Rules and Regulations. The supplier shall obtain a clear R/r or G/r. If this is no done and the stores, when received are found in a damaged condition and our claim is not accepted by the Railways or our underwriters the suppliers will be responsible for such damage. 6. MARKING ON R/rs.- G/rs : While offering goods to the Railway Road Transport the goods should be specified as "machinery Parts" or "compressor Components" if this is no done and excess payment is made for local taxes, such excess will be debited to the suppliers account. 7. INSURANCE : This will be arranged by us after receipt of supplier's despatch advice. However if such supplier's prices are F. O. R. destination, the insurance shall be covered up to our factory in Haryana State and 30 days storage thereafter. 8. 7. INSURANCE : This will be arranged by us after receipt of supplier's despatch advice. However if such supplier's prices are F. O. R. destination, the insurance shall be covered up to our factory in Haryana State and 30 days storage thereafter. 8. REJECTION OF MATERIAL : Material on receipt in our factory will be inspected as per our drawing or approved sample. It may be noted that while assembling or processing if further defects are noticed we reserve the right to reject such material even if in the first instance, it has been accepted by us. Our decision about such rejections at whatever time made, shall be final and binding upon the supplier and he will not object to it in any manner whatsoever. In case of rejection in part or fully, the material will be returned at the supplier's expense,. e. "freight to pay" by any suitable means of transport and a debit note raised. While making replacement the material should be despatched "freight paid". For replacement supply an invoice shall be raised with the remarks "replacement Supply" and our Challan No. and date under which rejected material was returned by us, should also be given. 9. EXTENSION OF DELIVERY DATE : If delivery period has expired extension of delivery date will be obtained from us before material is despatched. 10. FAILURE IN DELIVERY : In case the supplier fails to deliver the material in the quantities required within the period stipulated in this order, the comply reserve the right to:- (a)cancel the order or any part thereof. (b)effect purchase of required quantities of similar material from any other source at the risk and expense of the supplier and recover from him the extra cost paid if any. (c) recover from the supplier the liquidate damages to cover the loss in production if any or to meet any other extra expense caused due to failure on part of the supplier to deliver goods up to the quantities required and within the period stipulated. 11. CANCELLATION : The company reserve the right to cancel the order or any part thereof, if the delivery is not made within the stipulated period or on any other ground that it feels warrants such cancellation. 12. 11. CANCELLATION : The company reserve the right to cancel the order or any part thereof, if the delivery is not made within the stipulated period or on any other ground that it feels warrants such cancellation. 12. DISPUTES and JURISDICTION : All disputes of differences of opinion whatsoever which may at any time arise between the parties in connection with this purchase order shall always be deemed to have arisen in Delhi and no other court except the Civil Court within the state of Delhi shall have jurisdiction to such disputes of difference of opinion. " ( 15 ) IN order to prove the aforesaid documents, learned counsel for the plaintiff invited the attention of this Court to the cross-examination of DW"1, who is the only witness produced by the defendant. The witness states as under :- "i have seen the purchase order Exhibit P-1 and at the back of this purchase order, printed terms as shown in Exhibit PW-4/1 were printed. " it is, thus, stated that there is a clear admission of the witness that Exhibit p-1 contained the terms as set out aforesaid. On being specifically asked whether the defendant at any point of time addressed any communication to the plaintiff that it was not bound by these terms, the witness denied the suggestion, but in the same breath stated that there was no such letter available on the record. The witness states that since the document was not duly signed by the defendant, the same was not binding. ( 16 ) LEARNED counsel for the plaintiff pointed out that once the purchase order and the condition at its back are admitted, supplies are made in pursuance thereto and payment received with no material being brought on record of the defendant having ever objected to the terms and conditions, the terms and conditions would be deemed to have been accepted by the defendant. I am in agreement with the submission of learned counsel for the plaintiff and nothing to the contrary has been brought to the notice of this Court. If the aforesaid conditions are binding, the plea of the plaintiff of exclusive jurisdiction in the Courts at Delhi has to be accepted since Delhi is certainly one of the courts, which would have jurisdiction as the payments were to be made at Delhi and some of the goods were supplied at Delh. If the aforesaid conditions are binding, the plea of the plaintiff of exclusive jurisdiction in the Courts at Delhi has to be accepted since Delhi is certainly one of the courts, which would have jurisdiction as the payments were to be made at Delhi and some of the goods were supplied at Delh. The issue is accordingly answered in favour of the plaintiff and against the defendant. Issue No. 3 : Whether the radiators-cum-coolers supplied by the defendant to the plaintiff were defective as alleged" ( 17 ) THE plaintiff has claimed that the oil coolers supplied by the defendant were installed in the compressors of the plaintiff and then supplied to various customers in Northern India like Gwalior Rayon, General Agencies and suppliers, kalu Ram Ram Sukh, Diamond Cement, Satna Cement, Progressive Construction, bridge Inspector, Northern Railway, Niaz Ahmad Mobin Ahmad, Una Drillers, etc. The plaintiff, however, received complaints about there being leakages in the rocs and despite the officers being deputed both by the plaintiff and the defendant, the defect could not be remedied. ( 18 ) THE plaintiff has examined PW-5, Shri R. S. Bedi in this behalf, who was the Assistant Service Manager in 1981. He has deposed that he was deputed to check and find out faults in the compressors including at Bhilwara. It was found that the oil coolers fitted in the compressors had leaked and there was leakage of oil in the oil coolers. The witness has stated that he removed the oil coolers and took them to the market for repair, but during re-trial the same again started leaking. The witness stated that leakages in the oil coolers were on account of manufacturing defects and once the oil starts leaking, it is difficult to rectify the said problem. ( 19 ) LEARNED counsel for the plaintiff also drew the attention of this Court to exhibit P-4, which is a telegram sent by the defendant informing the plaintiff that they were deputing their mechanic to Nagda for attending to repairs guarding the ROCs. There is a mention also of requesting the Delhi office of the defendant to arrange for repair at the works of the plaintiff and regretting the inconvenience. Exhibit P-5 is a telex / telegram of the defendant referring to complaints received from Gwalior Rayon Chemical Division and deputing of service mechanic by the defendant. There is a mention also of requesting the Delhi office of the defendant to arrange for repair at the works of the plaintiff and regretting the inconvenience. Exhibit P-5 is a telex / telegram of the defendant referring to complaints received from Gwalior Rayon Chemical Division and deputing of service mechanic by the defendant. The telex also says that they were unable to send the ROCs, which were not in stock, but shall effect free replacement after receiving rejected ROCs back at the works due to excise problem. The copy of the telex has an office copy of the letter wherein the defendant has expressed its difficulty in sending new ROCs to Nagda in the absence of rejected ROCs being back at the works due to excise formalities and suggested to the plaintiff that it may send one ROC from its stock to the plaintiff's customers and in turn, the plaintiff may return the rejected ROCs to the defendant so that free replacement could be provided. ( 20 ) MR. G. Israni, Assistant General Manager of the plaintiff appeared as PW-3 and proved various documents including complaints from the plaintiff of leakage of oil and problem arising after repairs. Exhibit PW-3/1 is copy of the telex sent by the plaintiff to the defendant about the leakage problem. PW-3/2 is the letter by Gwalior Rayon Silk Manufacturing Co. Ltd. addressed to the plaintiff stating that the ROCs replaced had leaked again and expressing the doubt about the ROCs as they were apparently of sub-standard quality. An immediate replacement was requested for. PW-3/3 is again a reference to such complaint. The witness also proved similar complaints by different customers of the plaintiff. ( 21 ) MR. Vinay Bahl appeared as PW-4 and proved the terms and conditions of the purchase order as Exhibit PW-4/1. He also proved various complaints which had been received and the correspondences exchanged between the parties as Exhibit pw-4/2 to PW-4/44 and PW-4/51 to PW-4/65. The said witness established that out of 58 ROCs, 51 ROCs started leaking and the rest were not commissioned and lying at the works of the plaintiff. The witness also proved the purchase orders placed on M/s. Tekson and M/s. Hindustan Radiators as Exhibit PW-4/46 to pw-4/50. The witness also proved similar complaints by different customers of the plaintiff. The said witness established that out of 58 ROCs, 51 ROCs started leaking and the rest were not commissioned and lying at the works of the plaintiff. The witness also proved the purchase orders placed on M/s. Tekson and M/s. Hindustan Radiators as Exhibit PW-4/46 to pw-4/50. The witness also proved similar complaints by different customers of the plaintiff. There is no material cross-examination in regard to purchase of the material from M/s. Tekson and M/s. Hindustan Radiators. ( 22 ) THE aforesaid documents along with the deposition show that there were repeated complaints about the problem arising in the ROCs and even when they were sought to be replaced or remedied, there was persistent failure. ( 23 ) IN view of the weight of this evidence on record, it can hardly be said that the ROCs supplied by the defendant to the plaintiff were not defective. The customers of the plaintiff repeatedly complained and the defendant itself deputed its service people for repairs and even replaced some of the ROCs. Not only that, the defendant even requested the plaintiff to take urgent action where required for which ROCs would be provided later on as replacement by the defendant. ( 24 ) I am of the considered view that there were persistent defects in the ROCs supplied by the defendant with the result that they failed to serve the purpose for which they were purchased by the plaintiff. A total of 58 ROCs were supplied and the complaint relates to 51 of them. Seven of the ROCs could not even be commissioned and are stated to be lying with the plaintiff available for the defendant to receive the same. The defendant is also stated to have received 20 ROCs and for replacement / rectification, which were not replaced. ( 25 ) IN view of the aforesaid, the issue is answered in favour of the plaintiff. Issue No. 4 : Whether the plaintiff have used the ROCs for a purpose for which it was not intended as alleged and its effect" ( 26 ) ON perusal of the evidence, I do not find anything by which the defendant has been able to establish that the ROCs were used for the purpose other than which they were meant for. In fact, the case of the defendant is that the ROCs were manufactured as per the specifications of the plaintiff. In fact, the case of the defendant is that the ROCs were manufactured as per the specifications of the plaintiff. However, the issue is not whether the defendant so manufactured the ROCs, but that the ROCs manufactured and accepted by the plaintiff failed in the performance of the task for which it was meant. It was not in doubt that these ROCs were meant to be installed in the compressors of the plaintiff. I, thus, find the issue against the defendant. Issue No. 5 : Whether the ROCs supplied by the defendants had been accepted by the plaintiff after inspection and without objection, if so what is the effect thereof" ( 27 ) THE result of the aforesaid issue is dependent on the terms and conditions of the supply. The defendant had initially refused to accept that there were any terms and conditions agreed upon as stated by the plaintiff. However, while considering issue No. 2, a conclusion has been reached that the terms and conditions as specified in Exhibit PW-4/1 were binding on the parties. Clause 8 of the general terms and conditions of purchase clearly provides that even after initially accepting it, the plaintiff had a right to reject the material if found defective subsequently. It was also agreed that the decision in this behalf by the plaintiff would be final and binding upon the defendant, who would not object to it in any manner. In view of these agreed terms and conditions, it can hardly be said that the plaintiff is not entitled to reject the material on the failure of the ROCs. Clause 3 also provides for quality guarantee for a period of 12 months from the date of receipt of the material at the works of the plaintiff. A combined reading of these two clauses as well as the warranty of quality expected from the defendant gives rise to a clear finding that the plaintiff rightly rejected the defective goods supplied by the defendant. The issue is answered accordingly. Issue No. 6 : Whether the plaintiff is entitled to claim damages as alleged, if so, how much and on what count" ( 28 ) THE plaintiff has claimed damages on two accounts. The first is the price of 58 ROCs paid to the defendant by the plaintiff. The issue is answered accordingly. Issue No. 6 : Whether the plaintiff is entitled to claim damages as alleged, if so, how much and on what count" ( 28 ) THE plaintiff has claimed damages on two accounts. The first is the price of 58 ROCs paid to the defendant by the plaintiff. The goods were found to be defective and 20 of these ROCs were returned to the defendant, but not replaced. There are 7 ROCs lying with the plaintiff which the defendant is free to collect. The defendant has not collected them so far. In view of the terms and conditions of the contract, I am of the considered view that the defendant can collect the same. ( 29 ) INSOFAR as the aforesaid damages are concerned, it has to be seen that the plaintiff was duty bound to satisfy its customers and had to carry out purchases from the market of such ROCs and supply the same to its customers. The plaintiff has claimed two amounts : 1. price of the defective goods Rs. 5,78,538. 56 2. risk purchase made from the market Rs. 8,35,513. 53 (wrongly mentioned in the plaint as Rs. 14,87,700/-) ( 30 ) MR. Vinay Bahl appearing as PW-4 proved various complaints which had been received and the correspondences exchanged between the parties as Exhibit PW-4/2 to PW-4/44 and PW-4/51 to PW-4/65. The witness also proved the purchase orders placed on M/s. Tekson and M/s. Hindustan Radiators as Exhibit PW-4/46 to pw-4/50. There is no material cross-examination in regard to purchase of the material from M/s. Tekson and M/s. Hindustan Radiators. ( 31 ) SHRI P. K. Bansal has appeared in the witness box as PW-2, who joined in october, 1993 as Senior Accounts Officer. The said witness deposed on the basis of the books of accounts maintained in the ordinary course of business and proved the monies paid for the purchase of ROCs. The total amount proved is rs. 8,35,514/ -. In view of the defendant having supplied defective goods, I am of the considered view that the plaintiff is entitled to a sum of rs. 5,78,538. 56. ( 32 ) INSOFAR as the aspect of risk purchase is concerned, the risk purchase price has been proved at Rs. 8,35,513. 53. The total amount proved is rs. 8,35,514/ -. In view of the defendant having supplied defective goods, I am of the considered view that the plaintiff is entitled to a sum of rs. 5,78,538. 56. ( 32 ) INSOFAR as the aspect of risk purchase is concerned, the risk purchase price has been proved at Rs. 8,35,513. 53. I am, however, of the considered view that the plaintiff is not entitled to claim the total amount as that would amount to double accounting since the plaintiff would be entitled to only the differential of the price, which was paid to the defendant and the extra amount which the plaintiff has had to incur for the purchase of ROCs for its customers. The differential amount, thus, would be Rs. 8,35,513. 53 less Rs. 5,78,538. 56 totalling to Rs. 2,56,974. 97. ( 33 ) THE plaintiff has also claimed a sum of Rs. 2,00,000/- on account of expenses for deputing its officers and other costs of repairs. Learned counsel for the plaintiff did not dispute that there was no direct evidence led in this behalf, but claimed that this amount is a reasonable amount of damages. I am not willing to accept the said plea. The plaintiff ought to have led evidence in this behalf. The plaintiff is being held entitled to refund of the amounts paid to the defendant as well as the differential in the price. Further the defendant had been deputing its technical people to remedy the ROCs, though the same did not work out. I am, thus, not inclined to hold that the plaintiff is entitled to the sum of Rs. 2,00,000/ -. ( 34 ) IN view of the aforesaid, I am of the considered view that the plaintiff is entitled to Rs. 5,78,538. 56 on account of price of the goods paid to the defendant for defective goods and the risk purchase price of Rs. 2,56,974. 97 totaling to Rs. 8,35,513. 53. The issue is answered accordingly. 2,00,000/ -. ( 34 ) IN view of the aforesaid, I am of the considered view that the plaintiff is entitled to Rs. 5,78,538. 56 on account of price of the goods paid to the defendant for defective goods and the risk purchase price of Rs. 2,56,974. 97 totaling to Rs. 8,35,513. 53. The issue is answered accordingly. Issue No. 7 : Whether the defendant is entitled to claim the price of 12 ROCs for failure of the plaintiff to take delivery thereof" issue No. 8 : Whether the plaintiff was under obligation to take delivery of the 12 ROCs for which the defendant has now submitted a counter claim" ( 35 ) THE defendant has claimed that it had to take back 12 ROCs on account of failure of the plaintiff to accept the same. In this behalf, learned counsel for the plaintiff has invited the attention of this Court to Exhibit P-52, which is a Memorandum of Minutes dated 16. 04. 1982. Para 7 of the said Minutes reads as under :- "7. It was emphasised upon Mr. Patel that 51 ROCs would have to be replaced before supply of fresh ROCs commences and KGK will not be in a position to lift any ROC till matter is sorted out. It was, therefore, decided that 5/6 rocs which had failed in the field, would be returned to Banco so that they could ascertain the cause of failure and take remedial action to rectify these. " ( 36 ) A reading of the aforesaid clause shows that the question of fresh supplies was to be only considered once 51 ROCs were replaced. These were never replaced. There was, thus, no occasion to accept any fresh supplies when the earlier supplies were found to be defective. ( 37 ) IN view of the aforesaid, the defendant is held not entitled to claim the price of the 12 ROCs as there was no obligation of the plaintiff to accept the same. Issue No. 9 : Whether the plaintiffs or defendants are entitled to claim any interest in respect of their respective claims" ( 38 ) THE plaintiffs have claimed interest @ 12% p. a. The interest has been claimed only from the date of institution of the suit. The suit has been filed in the year 1983 when rates of interest were much higher though the same have been declined now. The suit has been filed in the year 1983 when rates of interest were much higher though the same have been declined now. Suffice to say that the rate of 12% simple interest can hardly be said to be excessive or not payable to the plaintiff on the outstanding amount from the defendant. The plaintiff is, thus, held entitled to 12% p. a. interest. Issue No. 10: Relief ( 39 ) THE suit of the plaintiff is decreed for the sum of Rs. 8,35,514/- along with interest @ 12% p. a. from the date of institution of the suit,. e. , 15. 02. 1983 till the date of realisation. The plaintiff would also be entitled to proportionate costs. ( 40 ) THE counter claim of the defendant is rejected. The defendant can, however, collect the ROCs lying with the plaintiff. Decree-sheet be drawn up accordingly.