JUDGMENT : Heard the parties. 2. This appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 28.8.2002 passed by the Sub Judge-VII, Dhanbad in Money Suit No. 35/1992 by which Sub Judge-VII has decreed the suit of the plaintiff-appellant for Rs.4,99,355.14 only and has decreed the counter claim of the defendant-respondent for Rs.11,21,359/- and ordered that the amount payable to the plaintiff shall be adjusted from the decretal amount of the defendant and also directed the plaintiff to pay Rs.6,22,023.86 with interest at the rate of Rs. 12% per annum from the date of filing of the counter claim within two months to the defendant. 3. The case of the plaintiff-appellant in brief is that the plaintiff issued a Press Advertisement on 19.12.1990 for supply of cold drawn seamless steel tubes conforming to BSS-3059/2 with Boiler Inspection Test Certificate. In response to the said Press Advertisement, the defendant submitted quotation which was accepted and the plaintiff issued purchase order dated 19.4.1991 for supply of the said seamless steel tubes. After delay the defendant submitted the bill dated 21.8.1991 along with several enclosures such as test certificates, many of which were forged/not genuine showing that the aforesaid materials were dispatched on 21.8.1991. The documents were retired from the bank and the goods were taken delivery. The goods were found with the following defects:- (i) The actual dimensions of the tubes supplied were not as per specifications mentioned in the purchase order. On random checking, OD has been found as 82.69mm and 83.14mm thickness 5.4mm and 5.62mm. (ii) Some tubes were having pitting, some have deep grooves as deep as 2 to 4mm depth, some have holes throughout the thickness, internal surface has scales/rust. It appears that these tubes were old and reconditioned. At some places circumferential void was also seen. 4. The Materials Manager of the plaintiff by sending telex requested the defendant to immediately replace the same and to send the defendant’s representatives to see the things himself. Ultimately a telex confirmation was sent by the defendant whereby the defendant promised to send his representative after Durga Puja for personal verification of the pipes and if the defendant’s representative found the pipes defective, the same would be replaced free of cost. Ultimately a telex confirmation was sent by the defendant whereby the defendant promised to send his representative after Durga Puja for personal verification of the pipes and if the defendant’s representative found the pipes defective, the same would be replaced free of cost. Ultimately, the defendant vide his letter dated 26.12.1991 informed the plaintiff about crediting the account with a sum of Rs.4,99,335.14 due to rejection, which was received by the defendant vide his bill bearing no. 837 dated 21.8.1991. It is averred by the plaintiff that the plaintiff had paid a sum of Rs.5,00,842.44 when the papers were retired from the State Bank of India, Sindri Branch and also a sum of Rs.28,295/- was paid to the transporters. The defendant’s representative also came and saw the defective tubes. The plaintiff requested the defendant to send the amount by bank draft within 15 days but the same was not paid by the defendant. Thereafter the plaintiff served a notice through its Advocate which was duly received by the defendant, to which the defendant sent a reply containing false and frivolous pleas. Hence the plaintiff filed a suit for decree of Rs.6,24,817.44 which was calculated by adding interest at the rate of 22% per annum from 6.9.1991 till 1.7.1992 which worked out to Rs.95,680/- to the amount of Rs.5,00,842.44 being the amount paid by the plaintiff through bank and transport charges of Rs.28,295/-. 5. After appearance, the defendant filed written statement in which a counter claim was also made. The defendant also deposited the court fee of Rs.19,500/- along with the said written statement-cum-counter claim though no separate suit was instituted in respect of the counter claim yet the plaintiff filed the written statement to the counter claim of the defendant also. In the written statement the defendant besides the usual defence inter alia pleaded that none of the certificates furnished by it was forged or not genuine. The defendant also denied that there was any defect in the goods supplied by it and also pleaded that the said defects were proposedly levelled by the plaintiff whimsically but in view of maintaining its reputation as well as good relation with the plaintiff, the defendant agreed to replace the goods free of cost. The defendant also denied that there was any defect in the goods supplied by it and also pleaded that the said defects were proposedly levelled by the plaintiff whimsically but in view of maintaining its reputation as well as good relation with the plaintiff, the defendant agreed to replace the goods free of cost. It was further pleaded that there was no delay on the part of the defendant at all in meeting the contents of the telex message sent by the plaintiff to the defendant. The defendant also admitted of having issued credit note for Rs.4,99,335.14 but pleaded that the same was issued with a condition that the credit note shall be honoured subject to honouring of the next order dated 10.9.1991. The defendant further pleaded that vide purchase order bearing no. 1327 dated 10.9.1991, order for 2280 pieces of tubes valued at Rs.23,05,422/- was also place by the plaintiff. The defendant vide telex message dated 25.9.1991 and telex message dated 7.10.1991 informed the plaintiff to inspect the articles before the dispatch as the articles under the said purchase order dated 10.9.1991 were ready but the plaintiff in spite of several letters did not send its engineer representative to inspect the said articles and kept total silence and ultimately vide letter dated 4.12.1991, the plaintiff arbitrarily cancelled the said purchase order. It is further pleaded by the defendant that because of the cancellation of the said purchase order no. 1327 dated 10.9.1991 by the plaintiff, the defendant suffered heavy loss. The defendant through his Advocate demanded a sum of Rs.11,21,359/- from the plaintiff. The defendant has also pleaded that vide purchase order bearing no. 1327 dated 10.9.1991, the plaintiff further placed an order for purchasing 2280 pieces of seamless steel tubes wherein following conditions were mentioned:- a. The defendant had to furnish manufacturers test certificate regarding chemical composition and the physical properties and harness should be as per ASDM standard and the same should be duly certified by M/s LLOYD’s. b. Each tubes to be marked with specification and size of the tubes to be provided with caps, plugs at both ends for protection purpose. c. 1180 tubes were immediately required by the plaintiff and to give information immediately on receipt of the said order regarding inspection to enable to the plaintiff to send their inspector for inspection of the goods before dispatch. c. 1180 tubes were immediately required by the plaintiff and to give information immediately on receipt of the said order regarding inspection to enable to the plaintiff to send their inspector for inspection of the goods before dispatch. d. All facilities to be provided to the Inspector of the plaintiff for inspection of the goods. e. The plaintiffs were in urgent need of the said tubes and asked the defendant to keep ready the said goods for inspection and confirm by telex. f. Road permit was to be provided by the Inspector of the plaintiff.” 6. It is further case of the defendant that after receiving of the said purchase order dated 10.9.1991, the defendant made telephonic talk with Shri S.K. Choudhary, Material Manager of the plaintiff with regard to amendment in Condition No. 1 by which M/s LLOYD had to certify the standard in view of the fact that the articles were urgently required by the plaintiff and if the certificate from M/s LLOYD was to be obtained, it would take about 6 to 8 months. Upon this Shri S.K. Choudhary, Material Manager of the plaintiff, agreed on telephone that the inspection would be made by the engineer of the plaintiff and the defendant also sent a letter dated 14th September, 1991 for the said amendment and in the said letter the defendant also referred the said telephonic talk and confirmation of the clause with regard to inspection by the engineer of the plaintiff only. As per the defendant, the agreement confirmed by Shri S.K. Choudhary over telephone constituted a valid amendment. Though over telex message the defendant requested the plaintiff to send its engineer for inspection of the said articles in respect of the purchase order bearing no. 1327 but the plaintiff did not reply to the said letter and Shri S.K. Choudhary, Material Manager of the plaintiff, when contacted by the partner of the defendant namely, Mr. Babulal Shah, replied to Mr. Shah that no one was available to take inspection of the goods and hence no reply to various telex message could be sent to the defendant. The defendant also suggested the plaintiff that the goods are lying ready at Ankaleshwar near Baroda in Gujarat and the inspection could be carried out by M/s PDIL, Baroda which was an independent and competent body but no reply was made by the plaintiff. The defendant also suggested the plaintiff that the goods are lying ready at Ankaleshwar near Baroda in Gujarat and the inspection could be carried out by M/s PDIL, Baroda which was an independent and competent body but no reply was made by the plaintiff. Learned counsel further pleaded that after receiving of the said arbitrary, illegal and malicious cancellation order, which was also without jurisdiction, the defendant waited for some time and lastly intimated to the plaintiff vide telex message dated 1.6.1992 that the plaintiff has no right to cancel the said contract and that the tubes are ready for delivery and requested the plaintiff to take delivery of the said tubes within four days failing which the defendant will sell the same in the open market which may fetch 50% of the value and the loss, which would be sustained by the defendant, shall be recovered from the plaintiff. The plaintiff also did not care to the reply of the letters/messages of the defendant in this respect and lastly the defendant sold the said articles to M/s Sun Rise Tubes Corporation of Bombay for Rs.11,83,320/- on 8.6.1992. Hence, the defendant made a counter claim of Rs.11,21,359/- with interest at the rate of 24% per annum which worked out to Rs.16,14,525/- and further interest thereof. 7. In its written statement to the counter claim of the defendant, the plaintiff controverted the pleadings of the defendant that the goods supplied in respect of first purchase order was not defective and the plaintiff pleaded that the goods are still physically available and the same can be physically examined to bear out the evidence. It was further pleaded by the plaintiff that the plaintiff has a multiple tier system of inspection by the qualified engineers and on such inspection, the goods supplied in respect of first supply order was found to be substandard. Learned counsel further pleaded that the tubes on order were for the use of Boilers and use of substandard tubes will not only cause heavy damage to property but also the loss of human lives and for this reason, the Government has also instituted Boiler Inspectorates in all the States whose authentication about quality is essential before use of the tubes and the tubes had no such Boiler Inspector’s genuine certificate which was contrary to the conditions mentioned in the purchase order. The plaintiff further pleaded that the allegation of loss sustained by the defendant due to cancellation of the purchase order by the plaintiff is baseless and keeping in view the substandard quality of material goods supplied by the defendant, the plaintiff insisted for M/s LLOYD’s inspection certificate in respect of the materials mentioned in the purchase order bearing no. 1327 and as the defendant has given credit note, so it has to accept its liability. The plaintiff further pleaded that keeping in view the conduct of the defendant in course of execution of supply against the plaintiff’s order bearing no.5068 dated 19.4.1991, the plaintiff could not take chance for getting into the trap as was intended to be done by the defendant and in absence of M/s LLOYD’s certification the plaintiff had no alternative than to cancel the purchase order. 8. In paragraph-10 of the written statement, the plaintiff has pleaded that the statement about the telephonic discussions made at paragraphs-17 and 18 of the written statement could only take place in good faith. 9. It is pertinent to mention here that the plaint was signed on behalf of the plaintiff which is a Central Government Undertaking, by the Senior General Manager of FCI Sindri Unit and the written statement to the counter claim was signed by the General Manager, FCI, Sindri Unit. 10. On the basis of the rival pleadings, learned court below framed the following issues:- (i) Whether the suit of the plaintiff is maintainable? (ii) Whether the plaintiff is justified in rejecting the materials supplied, under Purchase Order dated 19.4.1991? (iii) Whether the plaintiff is justified in cancelling the purchase order dated 10.9.1991? (iv) Whether the counter claim of the defendant is maintainable? (v) Whether the plaintiff is entitled to the relief claimed? If so what? (vi) Whether the defendant is entitled to counter claim? If so what? 11. In support of the case, the plaintiff examined two witnesses of which Shri S.K. Choudhary, Material Manager of the plaintiff, is P.W.1 and Shri V.V. Rao is P.W.2. The plaintiff also proved the documents such as carbon copy of the inspection report, marked as Ext.1; carbon copy of the Advocate’s notice, marked as Ext.2; letters issued by the plaintiff regarding the defect dated 15.10.1991, 31.10.1991, 26.4.1991, marked as Ext.3, 3/A & 3/B; A/D card and postal receipt of the Advocate’s notice, marked as Exts. The plaintiff also proved the documents such as carbon copy of the inspection report, marked as Ext.1; carbon copy of the Advocate’s notice, marked as Ext.2; letters issued by the plaintiff regarding the defect dated 15.10.1991, 31.10.1991, 26.4.1991, marked as Ext.3, 3/A & 3/B; A/D card and postal receipt of the Advocate’s notice, marked as Exts. 4 and 5 respectively; challan of the defendant dated 21.8.1991, marked as Ext.6; photo copy of the consignment note, marked as Ext.7; purchase order dated 4.12.1991, marked as Ext.8; telex messages of the defendant, marked as Ext.9 to 9/g. 12. From the side of the defendant, two witnesses were examined of which D.W.1 is Babu Lal Sang Das Saha and D.W.2 is Manoj Kumar. The defendant has also proved the documents. Ext.A to A/2 are the photo copies of the test certificates. Ext.B is the purchase order bearing no. 1327 dated 10.9.1991; Ext.B/1 is the purchase order no.5068 dated 19.4.1991; Ext.C to C/4 are the carbon copies of the letters dated 14.9.1991, 31.10.1991, 3.9.1991, 23.8.1991, 27.11.1991; Ext.C/5 is the letter dated 4.12.1991; Ext.D to D/2 are the postal receipts; Ext.E to E/5 are the copies of telex messages; Ext.F to F/4 are the copies of telex messages; Ext.G is the notice of the Advocate dated 11.6.1992; Ext.H is the A/D card; Ext.I is the copy of bill showing the sale of 2280 pieces of seamless tubes by the defendant to the M/s Sun Rise Tubes Corporation of Bombay; Ext.J to J/1 is the photocopies of the test certificates; Ext.K is the photocopy of the certificate of registered firm; Ext.L is the letter of the defendant addressed to M/s Sun Rise Tubes Corporation of Bombay dated 5.6.1992; and Ext.M is the photocopy of the letter dated 6.6.1991. 13. The learned court below after taking into consideration the materials and evidences available on record in respect of Issue No. 2 came to a conclusion that no specific defects in the specification of the materials have been pointed out and hence held that the rejection of the material was not proper and not justified and no defect in the materials supplied was proved satisfactorily. In respect of Issue No. 3, learned court below observed that the silence of the authority of the plaintiff in not replying to the letters of the defendant may be treated as admission and it was observed by the court below that P.W.1 could not explain as to why the third party inspection by M/s LLOYD was insisted upon when its own engineering experts were able to inspect the material and take their own independent decision about the quality of the materials to be supplied. Learned court below also observed that the plaintiff did not get the materials inspected through their own team of expert engineers or the third party agency M/s PDIL, a Government of Indian concern and sister concern of the plaintiff, under the control of Ministry of Fertilizers and thus held that the cancellation of the order dated 10.9.1991 by the plaintiff is not justified. 14. In respect of Issue Nos. 4 and 6, learned court below held that since the defendant has suffered loss to the extent of Rs.11,21,359/-, the defendant is granted simple interest at the rate of 12% per annum on the said amount from 11.8.1991 to 12.8.1993. 15. In respect of Issue Nos. 1 and 5, learned court below observed that the plaintiff has committed breach of the terms of contract by cancelling the order dated 10.9.1991 and by rejecting the materials supplied under order dated 19.4.1991 but the court below further observed that as the defendant has admitted to allow the plaintiff to make adjustment of Rs.4,99,325.14 by issuing the credit note, hence, the defendant has admitted its liabilities to that extent and therefore the court below has granted the plaintiff a decree for Rs.4,99,335.14 only without interest and costs of the suit and held that the plaintiff is entitled to receive the said amount from the defendant and ordered that the said amount will be adjusted from the decretal amount if any receivable by the defendant from the plaintiff. Thus, answering the Issue Nos. 1 and 5, the court below held that the defendant is entitled to a decree of Rs. Thus, answering the Issue Nos. 1 and 5, the court below held that the defendant is entitled to a decree of Rs. 11,21,359/- without interest and the plaintiff is also entitled to decree for Rs.4,99,355.14 from the defendant which will be adjusted from the decretal amount of the defendant against the plaintiff and in the result, the defendant will get a sum of Rs.6,22,023.86 and the defendant is entitled to receive interest at the rate of 12% per annum from the date of filing of the counter claim and directed the plaintiff to pay decretal amount within two months from the date of the order. 16. Mrs. Shweta Bharti, learned counsel appearing for the appellant, submits that the judgment and decree passed by the learned court below is perverse and is not based on fact as well as law. Learned counsel further submits that the learned court below has failed to take into consideration the evidence on record in its proper perspective and arrived at incorrect finding. It was further submitted that in Ext.1 it has been categorically mentioned in the back side in the hand writing of P.W.2 that the specific defect was found by him during the course of inspection of the said materials, hence the learned court below ought not have held that no specific defect in the specification of the materials has been pointed out. It is further submitted that the plaintiff being a Public Sector Undertaking was well within its right to impose any condition in its purchase order including the condition of a test certificate from M/s LLOYD, which is an internationally renowned inspecting agency, and it was up to the defendant to accept it or not but certainly the defendant is not entitled to force the plaintiff to accept the materials on the set of condition proposed by the defendant, which condition was never in fact accepted by the plaintiff. It is further submitted that the appellant being a Public Sector Undertaking and the Body Corporate, Shri S.K. Choudhary, Material Manager, which is comparatively junior ranking officer, is not authorized on behalf of the plaintiff to change the terms and conditions of the purchase order and even the Material Manager, who has been examined as P.W. 1, has categorically stated that he never accepted the request for amendment of the condition of the purchase order by deleting the condition of furnishing the test certificate form M/s LLOYD in respect of the materials to be supplied by the defendant to the plaintiff. 17. Learned counsel for the appellant drew attention of this Court to Ext.B, which is the purchase order dated 10.9.1991, wherein it has been specifically mentioned that the delivery date is essential part of the contract and it has also been mentioned that the delivery period should be 16 weeks from the date of the purchase order which is 19.4.1991 and submits time being essence contract and the material in respect of purchase order (Ext.B/1) having been dispatched beyond the stipulated delivery period, so on this score also the defendant has failed to discharge his obligation in respect of the time period of supply as stipulated in the purchase order. Learned counsel for the appellant further drew attention of the court to the condition at Serial-3 as mentioned in the purchase order which has been marked as Ext.B, in respect of the purchase order no. 1327 dated 10.9.1991, wherein it has been categorically mentioned that no revision of that order shall be valid or binding on the buyer unless confirmed the buyers and submitted that as it has specifically been mentioned that unless the confirmation of the buyer is made to the revision of that order such revision shall not be valid and in this case the plaintiff has not accorded confirmation in express terms, which obviously means that the alleged telephonic discussion of the defendant with Shri S.K. Choudhary, Material Manager of the plaintiff, is insufficient to establish that the terms of the aid purchase order has been revised by waiving the clause of furnishing of test certificate from M/s LLOYD and the learned court below erred by accepting such submission. 18. 18. Learned counsel for the appellant further drew the attention of this Court to Section 16 of the Sale of Goods Act, 1930 which reads as under:- “16. Implied conditions as to quality or fitness.—Subject to the provisions of this Act and of any other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:- (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be reasonably fit for such purpose.” and submits that since the plaintiff in this case being the buyer, expressly makes known to the seller, in this case the defendant, the particular purpose for which the goods are required, so as to show that the plaintiff relies on the defendant’s skill or judgment that the goods are of a description, which it is in the course of the defendant’s business to supply, though the defendant is not producer or manufacturer, so it is an implied condition that the goods shall be reasonably fit for such purpose. The P.W.2 has categorically stated that the same were defective which has been mentioned in Ext.1 also and such evidence having not been demolished or discredited in any manner the learned court below ought to have held that the plaintiff has the right to reject the materials in connection with the purchase order which has been marked as Ext.B & B/1. More so, because the plaintiff has categorically stated that the goods are still lying for inspection and the defendant before filing of the suit neither sent any expert to contradict the inspection report of the plaintiff nor took any step in this respect during pendency of the suit. 19. Learned counsel for the appellant further drew attention of this Court to Section 51 of the Indian Contract Act, 1872 which reads as under:- “51. 19. Learned counsel for the appellant further drew attention of this Court to Section 51 of the Indian Contract Act, 1872 which reads as under:- “51. Promisor not bound to perform, unless reciprocal promisee ready and willing to perform.—When a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise.” And submits that since the plaintiff was not ready and willing to accept the condition imposed by the defendant in respect of the purchase order which has been marked as Ext.B, and in spite of that if the defendant has procured the materials, the plaintiff cannot be held liable in any manner for the same and the plaintiff cannot be saddled with punitive charges by way of compensation as has been made by the court below, for the loss, if any, sustained by the defendant. 20. Learned counsel for the appellant further submits that there is absolutely no evidence in the record as to from which producer the defendant has procured 2280 pieces of seamless steel tubes and at what price and in absence of that essential information which obviously was withheld by the defendant deliberately, there was absolutely no evidence in the record for the learned court below quantify the loss sustained by the defendant. She further submits that the plaintiff is no way responsible for such loss, if any, sustained by the defendant, hence, it is submitted that the impugned judgment and decree passed by the Sub Judge-VII, Dhanbad in Money Suit No. 35/1992 being not sustainable in law be set aside and the suit of the plaintiff be decreed. 21. Mr. She further submits that the plaintiff is no way responsible for such loss, if any, sustained by the defendant, hence, it is submitted that the impugned judgment and decree passed by the Sub Judge-VII, Dhanbad in Money Suit No. 35/1992 being not sustainable in law be set aside and the suit of the plaintiff be decreed. 21. Mr. J.K. Pasari, learned counsel for the respondent, on the other hand defended the impugned judgment and submits that in paragraph-10 of the written statement of the plaintiff filed in respect of the counter claim by the plaintiff, it has been categorically mentioned that the conversation was made between D.W.1 and P.W.1, which implies that the plaintiff accepted the amendment sought by the defendant regarding purchase order hence the plaintiff having agreed for waiving the requirement of furnishing the test certificate from M/s. LLYOD, and consequent upon that the materials which was to be supplied in respect of the purchase order was procured by the defendant but still the plaintiff having not sent any engineer for inspection of the materials, the defendant have sustained loss for which the plaintiff is solely responsible and liable, hence the learned court below has rightly held that the plaintiff is liable to pay a sum of Rs. 11,21,359/- to the defendant. 22. It is further submitted by the learned counsel for the respondent that as the P.W.1 has categorically admitted in his deposition that he had telephonic conversation with D.W.1 wherein the D.W.1 told P.W.1 that it will take 6 to 8 months for procuring the certificate from M/s LLOYD, hence this oral conversation coupled with the contents of Ext. C proves the case of the defendant that the plaintiff agreed for waiving the condition of furnishing the test certificate of M/s LLOYD but still the plaintiff did not send its engineer for inspection of the materials and consequently did not receive the materials to be supplied by the defendant in response of the purchase order, marked as Ext. B. 23. Learned counsel for the respondent drew attention of this Court to the contents of Ext. B. 23. Learned counsel for the respondent drew attention of this Court to the contents of Ext. B wherein it has been mentioned that 1180 tubes out of 2280 tubes, for which the purchase order was issued, were immediately required by the plaintiff and the defendant was given only 15 days’ time to make such tubes ready for inspection hence, no fault can be attributed to the defendant for making ready the said tubes for inspection without test certification from M/s LLOYD, rather the same was the natural conduct expected from a good business organization like the defendant more so in view of the overwhelming evidence put forth by the defendant to the effect that the plaintiff waived the condition of furnishing the test certificate of the materials from M/s LLOYD. It is also submitted that the learned court below has rightly allowed the counter claim hence the impugned judgment and the decree being rightly passed, the same need no interference by this Court and this appeal being without any merit be dismissed. 24. Having heard learned counsel for the parties and on going through the materials on record, the following points for determination arises in this appeal i. Whether the plaintiff is entitled to reject the materials supplied under the purchase order dated 19.4.1991? ii. Whether the plaintiff is justified in cancelling the purchase order dated 10.9.1991? iii. Relief to which the parties to the suit are entitled to? 25. So far the first point for determination is concerned, after going through the evidence on record, I find that P.W.1 Shri S.K. Choudhary, Material Manager of the plaintiff, has deposed about the supply of the materials in respect of purchase order, marked as Ext.B/1, by the defendant for Rs.4,91,022/- with CST of 4% and the plaintiff paid Rs.5,00,842.44 to the bank to collect the bilty and also paid freight charge of Rs.28,295/-. P.W.1 has also deposed that Deputy Chief Manager being P.W.2 inspected the materials and noted the condition of the tubes. After telex message was sent, the defendant sent his representatives for getting it audited and the defendant admitted that the materials are not as per the order and issued a credit note. The plaintiff has made full payment of freight charges. After telex message was sent, the defendant sent his representatives for getting it audited and the defendant admitted that the materials are not as per the order and issued a credit note. The plaintiff has made full payment of freight charges. In his cross-examination P.W.1 has stated that he had conversation directly with the defendant in respect of the order dated 10.9.1991 in connection of supply of 2280 pieces of tubes. There was condition that M/s LLOYD’s inspection certificate is required for the materials to be supplied under the order dated 10.9.1991. He had a conversation with the partner of the defendant namely, Babu Lal Sang Das Saha (D.W.1) who told him that it will take 6 to 8 months for getting M/s LLOYD’s test certificate but he denied having told the defendant that after the material is manufactured he should be informed so that he will send its engineers/representatives for inspection of the materials. He has also denied the suggestion that it is a fact that M/s LLOYD’s test certificate condition was amended. The defendant sent a letter on 14.9.1991, which has been marked as Ext. C. P.W.2, Mr. V.V. Rao, is the person who inspected the materials supplied by the defendant vide Ext. B/1. Vide purchase order, marked as Ext. B/1, he has proved the carbon copy of the consignment on the back side of which inspection note has been mentioned and he has categorically stated that the content of the said Ext. B/1 was in his hand writing. He denied the suggestion that Ext. B/1 is forged and fabricated. D.W.1 Babu Lal Sang Das Saha, who is partner of the defendant, has, inter alia, stated about the dispatch of seamless tubes in respect of the purchase order dated 19.4.1991 through transport. He has denied that the test certificate accompanying the material was fake and forged. He has also stated that the defect pointed out vide Ext. B/1 is baseless and without any grain of truth. Neither he has been supplied any copy of the inspection report nor any inspection was made in his presence. He sent the credit note for Rs.4,99,355.14 in respect of the said materials supplied, which were found to be defective, as per the inspection made by the plaintiff, though in fact there was no defect. Neither he has been supplied any copy of the inspection report nor any inspection was made in his presence. He sent the credit note for Rs.4,99,355.14 in respect of the said materials supplied, which were found to be defective, as per the inspection made by the plaintiff, though in fact there was no defect. In the purchase order dated 10.9.1991 the plaintiff imposed a condition that the test certificate from M/s LLOYD’s must be furnished. He had conversation with P.W.1-Shri S.K. Choudhary, Material Manager of the plaintiff that it will take 6 to 8 months for obtaining the test certificate from M/s LLOYD. Shri S.K. Choudhary told D.W.1 that he will send his representative and told D.W.1 to make his materials ready and M/s LLOYD’s certificate is not required. He has mentioned all the conversations in his letter dated 14.9.1991 marked as Ext.C, and when the material was ready, several telex messages were sent but nobody from the side of the plaintiff did come for inspection and on 4.12.1991 the plaintiff cancelled the order dated 10.9.1991. D.W.1 waited for six months and ultimately he sold the said materials to M/s Sun Rise Tubes Corporation of Bombay for Rs.11,83,320/- on 8.6.1992. In his cross examination, D.W.1 has stated that in respect of the order dated 19.4.1991 he had to submit along with the materials boiler inspection certificate and test certificate that the goods were not imported. He did not make any physical inspection of the materials which has been purchased and supplied to the plaintiff. He did not furnish the inspection certificate separately in respect of those materials. The said materials were never in his godown rather the same were with the manufacturer of the said materials and from there he supplied the materials. In Ext.6 it has not been mentioned that the material has been supplied from the godown of the party. In Ext.2 length of the pipe has been mentioned as 40 feet but in the purchase order it has been mentioned as 8.007 metre, 6.4metre and 7 metre. He did not furnish any certificate from any manufacturer regarding the supply of the material. He received the money of the said materials. He has further stated that as per the purchase order dated 10.09.1991, M/s LLOYD’s certificate was not to be furnished but there is no letter to this effect. He did not furnish any certificate from any manufacturer regarding the supply of the material. He received the money of the said materials. He has further stated that as per the purchase order dated 10.09.1991, M/s LLOYD’s certificate was not to be furnished but there is no letter to this effect. He requested the plaintiff for amendment of the purchase order vide letter dated 14.9.1991. He never approached M/s LLOYD for inspection of the material. He has no testing report regarding the material. He was to send the material from Bombay. Vide his letter dated 30.10.1991 he informed that he will either replace/reject the materials or will repay its price. He never told the plaintiff that he will supply the material having M/s LLOYD’s certificate. He could not show any document as to from whom he purchased the materials of the second purchase order. He did not advertise for the materials which were kept with him to be sold. In Ext.I, which is the bill regarding selling of the materials; there is no reference of any test report. The detail of the purchase order has not been reflected in Ext.I. D.W.2 – Manoj Kumar is the partner of the Firm M/s Sun Rise Tubes Corporation of Bombay. He has stated that 2280 pieces of seamless tubes were purchased from the defendant on 8.6.1992 at the rate of Rs.519/- per piece. In his cross examination, he has stated that he cannot say to whom he sold the said materials purchased by the defendant and at which price. 26. From the evidence on record, it is crystal clear that the testimony of P.W.2 regarding the defects in the material supplied by the defendant to the plaintiff in respect of the purchase order no. 5068 dated 19.4.1991 has not been demolished. In the cross examination D.W.1 has categorically admitted that he did not furnish the boiler test certificate in respect of the said materials. D.W.1 admitted that though it has been mentioned in the test certificate marked as Ext.2 that the materials were imported goods but the materials supplied by him were not imported goods. The D.W.1 has stated that the said materials were never in his godown rather it was in the godown of the manufacturer from there he has supplied it though this matter was never expressly informed by the defendant to the plaintiff. The D.W.1 has stated that the said materials were never in his godown rather it was in the godown of the manufacturer from there he has supplied it though this matter was never expressly informed by the defendant to the plaintiff. Considering the aforesaid facts and circumstances, I have no hesitation in holding that the evidence in the record is sufficient to establish that the materials supplied by the defendant to the plaintiff were defective and the plaintiff has rightly canceled the purchase order. So the point for determination no. 1 is answered accordingly. 27. So far as the point for determination no. 2 is concerned, it is the admitted case of the parties that the plaintiff has imposed condition of furnishing the test certificate from M/s LLOYD in respect of the material to be supplied. The purchase order, marked as Ext. B, contained a specific condition in this respect which the defendant was certainly at liberty either to accept or not to accept and certainly the defendant was not within its right, in view of the said specific condition, to waive of the condition of test certification of M/s LLOYD’s unilaterally, on the ground of requirement of delivery of the materials within a short period of time. There is no material on record that P.W.1-the Material Manager of the plaintiff, was competent to take the decision on behalf of the plaintiff-which is a Government of India Undertaking and a Body Corporate, to waive the condition expressly mentioned in the purchase order. Under such circumstance, I have no hesitation in holding that the plaintiff was well within its right to cancel the purchase order for failure on the part of the defendant to furnish the test certificate of M/s LLOYD. 28. It will be pertinent to mention at this stage that the court below went beyond its jurisdiction in observing that the plaintiff did not get the materials inspected by their own team of expert engineers or the third party agency-M/s PDIL, a Government of India concern and sister concern of the plaintiff under the control of the Ministry of the Fertilizers. Certainly, the plaintiff was at liberty to impose any condition in any purchase order as is suitable to its own satisfaction and no fault could be found on the plaintiff on this score. Hence point for determination no. 2 is answered accordingly. 29. Certainly, the plaintiff was at liberty to impose any condition in any purchase order as is suitable to its own satisfaction and no fault could be found on the plaintiff on this score. Hence point for determination no. 2 is answered accordingly. 29. So far as the point for determination no. 3 is concerned, as I have already held that the plaintiff was well within its right to cancel the purchase order in view of failure of the defendant to fulfill the condition of the purchase order to furnish the test certificate from M/s LLOYD’s, hence I have no hesitation in holding that the defendant is not entitled to get any compensation or damages from the plaintiff. Otherwise also the plaintiff has failed to put forth any evidence whatsoever that the price at which it purchased the materials which were ultimately as per its case was sold to M/s Sun Rise Tubes Corporation. In the absence of the said essential evidence regarding the price at which the defendant purchased the materials the loss if any sustained by it cannot certainly be quantified, because even if the claim of the defendant is to be accepted the loss sustained by it is the differential amount of the price at which the defendant purchased the materials from its manufacturer and the prince at which it sold the same to M/s Sun Rise Tubes Corporation. Further there is also no evidence in the record that the materials sold by the defendant to M/s Sun Rise Tubes Corporation of Bombay, were as per the specifications of the materials mentioned in the purchase order bearing no. 1327 dated 10.9.1991, marked as Ext.B. D.W.1 has categorically admitted that there is no document with him to show which material was ever purchased by the defendant and from whom. 1327 dated 10.9.1991, marked as Ext.B. D.W.1 has categorically admitted that there is no document with him to show which material was ever purchased by the defendant and from whom. There is no test certificate of the material sold by the defendant to M/s Sun Rise Tubes Corporation of Bombay to establish that in fact the materials sold by the defendant to M/s Sun Rise Tubes Corporation were the same materials which the defendant procured to supply the same to the plaintiff in respect of the purchase order, marked as Ext.B. So far as the claim of the plaintiff is concerned, it is the admitted case of both the parties that the material supplied vide order dated 19.4.1991 on being rejected by the plaintiff, the defendant issued a credit note of Rs.4,99,335.14 and over and above that the plaintiff has paid Rs.28,295/- towards transportation charges, which is also not in dispute but so far as the claim of interest thereon at the rate of 24% per annum is concerned, it appears to be an exorbitant rate of interest and in the facts and circumstances of the case, simple interest at the rate of 6% per annum will be proper. So, the plaintiff is entitled to a decree of Rs.4,99,335.14 and another Rs.28,295/- which comes out to Rs. 5,27,630.14 with simple interest there on at the rate of 6% per annum thereon. Hence the suit of the plaintiff is to be decreed to this extent only. But as the defendant has failed to establish its claim set forth in its counter claim hence the counter claim of the defendant is liable to be dismissed. Hence the point for determination no. 3 is answered accordingly. 30. In view of the discussions made hereinabove, I have no hesitation in holding that the impugned judgment and decree dated 28.8.2002 passed by the Sub Judge-VII, Dhanbad in Money Suit No. 35/1992 is not sustainable in law. Accordingly, the same is hereby set aside. 31. The suit of the plaintiff is decreed, the defendant is directed to pay Rs.4,99,335.14 + Rs.28,295/- = Rs. Accordingly, the same is hereby set aside. 31. The suit of the plaintiff is decreed, the defendant is directed to pay Rs.4,99,335.14 + Rs.28,295/- = Rs. 5,27,630.14 along with simple interest thereon at the rate of 6% per annum from the date of filing of the suit to till the date of payment within three months from the date of the judgment failing which, the plaintiff will be at liberty to realize the decretal amount with interest thereof from the date, in accordance with law. 32. Vide order dated 15.9.2017 passed in I.A. No. 7354 of 2017 the appellant was directed to secure the decretal amount with interest by furnishing a bank guarantee, renewable from time to time, before the learned Court below within a period of one week from the date of that order, it is submitted by learned counsel for the appellant that such bank guarantee has been furnished. 33. In view of the dismissal of the counter claim of the defendant, the appellant is discharged from the liability of the said bank guarantee. 34. In the result, this appeal is allowed but in the circumstances without any costs. 35. Let the lower court records be sent back to the court below forthwith, along with a copy this Judgment forthwith.