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2025 DIGILAW 873 (TS)

N. Srinivas Rao v. A. P. Suresh Ram

2025-06-10

TIRUMALA DEVI EADA

body2025
JUDGMENT : 1. This is an appeal filed by the appellant, being aggrieved by the judgment and decree, dated 20.02.2019 passed in O.S.No.833 of 2013 by the learned IX Additional Chief Judge, City Civil Court, Hyderabad (for short “the trial Court”). 2. The appellant herein is the plaintiff and the respondents are the defendants before the trial Court. The parties herein are referred to as they were arrayed in the suit before the trial Court for the sake of convenience and clarity. 3. The case of the plaintiff before the trial Court was that the plaintiff is engaged in the business of sales, supply and service of all kinds of pre-owned imported medical equipment to the Hospitals in India and that it got a chance to import sophisticated pre-owned 1000 number of Horizon NXT Infusion Pumps (needle less IV system) manufactured by M/s.B.Braun, Melsungen Ag., (a German Medical and Pharmaceutical device company) from the supplier by name M/s.DOTMed.com Inc.USA. That the plaintiff was not aware whether the compatible IV sets were available in India or not and that the sophisticated pumps were not sold in India and therefore, the plaintiff approached M/s.DOTMed.com expressing its interest that it would be taking up the deal if the compatible IV sets are available in India. It is its further case that in the Website of defendant No.2 the name of M/s.B.Bruan Medical (India) Private Limited is reflected as a manufacturer doing its business in India at Mumbai and that it is engaged in manufacturing various range and types of health care products such as infusion pumps, IV sets, Intensive care, cardiology, extracorporeal blood treatment units etc., and are also the stockiest Distributors and suppliers of multi brand health products etc., and also they are the service providers. Having gone through the website the plaintiff could find that one Mr.Jagdish Chandra Modi, is the person entrusted with the responsibility of Indian Operations and that he is taking care of the business operations in India, thus, the plaintiff negotiated with the concerned person and enquired whether the said company can supply compatible IV sets on regular basis for importing the counterpart equipment viz., Braun Horizon NXT Infusion Pumps by the plaintiff and has addressed a mail to that effect on 15.03.2012. It is its further case that in reply to the said email, defendant No.1 has directed its Regional Sales Manager Mr.Mahender Reddy at Hyderabad to attend to the plaintiff’s requirement and the said person has confirmed the availability of IV sets named “Intrafix ECO” for the Horizon NXT Pumps and quoted a price of Rs.17/- per set along with VAT. Thus, in view of the confirmation, the plaintiff has accepted for the same and gave his confirmation to the supplier M/s.DOTMed.com and went ahead and got imported 500 units of pre-owned Braun Horizon NXT pumps out of proposed 1000 units in the first phase. The plaintiff has paid for all the necessary charges. After receiving the first consignment containing the 500 units of pre-owned Braun Horizon NXT pumps, he contacted the defendant No.1 to arrange the supply of the compatible IV sets and that the defendant No.1 has supplied one packet of IV sets containing 50 numbers and the plaintiff paid an amount of Rs.1,050/- towards its charges but the plaintiff was shocked to know that IV sets were not compatible with the imported Horizon NXT Infusion Pumps. Immediately, the plaintiff has intimated about the said fact to the defendant No.1 and requested for arrangement of suitable IV sets. The Regional Sales Manager of D1 offered to depute their Technical expert Mr.Ravikanth to check the equipment and find out whether the IV set is compatible and after due inspection the said person has informed that they are not compatible to the Horizon NXT Pumps and the same was informed to defendant No.1. It is the case of the plaintiff that he suffered a huge loss due to the above contract because the entire Horizon NXT pumps which were bought by him were rendered useless without the compatible IV sets. That the defendant No.1 was careless and negligent and has acted in an unprofessional manner, thereby making the plaintiff to suffer a huge loss of Rs.9 Lakhs which includes warehousing charges and interest thereon. That on account of failure of defendant No.1 and his breach of agreement, the imported equipment is lying idle and useless, as a result, the plaintiff suffered huge financial loss and he also lost his business contacts. That on account of failure of defendant No.1 and his breach of agreement, the imported equipment is lying idle and useless, as a result, the plaintiff suffered huge financial loss and he also lost his business contacts. When he informed the same to defendant No.1 and requested to find a solution, defendant No.1 has expressed apologies and had informed that the item is not a routine item and hence, no confirmation would be given without checking in all aspects and has expressed his inability with regard to the non-availability of compatible IV sets and further informed that there was no written confirmation about supply of compatible IV sets. Thus, the plaintiff has issued a legal notice dated 19.12.2012 calling upon defendant No.1 to pay Rs.12 lakhs to the plaintiff as compensation for the failure of non-supply of compatible IV sets, to which the defendants have issued a reply and again the plaintiff has issued a rejoinder on 20.02.2013. It is the further case of the plaintiff that defendant No.1 is a subsidiary company of defendant No.2 company. Thus, defendant No.2 is also equally responsible for the acts and the breach of contract of defendant No.1 and therefore, both are liable to pay his claim. Thus, he claimed an amount of Rs.13,75,000/- including interest. 4. The defendants have filed a written statement denying the averments and have submitted that the plaintiff has raised a false claim against them. The mail dated 15.03.2012 is admitted and that in response to the said mail, they have addressed a mail on 16.03.2012 categorically stating that they can supply a different brand name called “Intrafix Eco” IV sets and not Horizon NXT Infusion Pumps as asked by the plaintiff company. But the plaintiff without making any further enquiry as to whether “Intrafix Eco” would go along with used Braun Horizon infusion Pumps has blindly proceeded and placed an order with the distributor in Hyderabad. Subsequent thereto, plaintiff has sent a mail to Regional Sales Manager of the 1 st defendant that they were unable to connect “Intrafix Eco” IV sets to Horizon NXT sets and on the very same day, the defendant No.1 responded stating that the said Horizon NXT is exclusive for markets in USA and that they are not available in India, as such, the compatible IV sets for Horizon NXT are not locally available in India. In its response to the plaintiff mail dated 01.11.2012, they have expressly informed the plaintiff that they have never assured to provide IV sets compatible with Horizon NXT and that the plaintiff cannot dispute this. The defendants have further contended that when the plaintiff has requested for the compatible IV sets through its mail dated 02.11.2012, they have responded by saying that the said compatible sets would cost upto 5 USD per set and the plaintiff responded seeking a volume base discount on the rates of the IV sets owing to the large number that the plaintiff offered to purchase and to their surprise on 03.11.012 the plaintiff has sent a mail alleging that the 1 st defendant indulged in breach of trust and unfair trade practice and sought to raise a claim that they had suffered a loss due to the 1st defendant and asked for an amicable settlement of the issue. Thus, the defendants case is that they have always been clear that they have agreed to provide only “intrafix Eco” IV sets and that they cannot provide with the compatible IV sets with Horizon NXT system and that to the said mail expressing the high cost of IV sets compatible with Horizon NXT system, there was no response from the plaintiff. The plaintiff was careless and failed to verify before placing the order as to whether he is placing an order for the right product or not but instead he has simply gone ahead and has ordered for Intrafix Eco and now because of its failure to use the same with the Horizon NXT sets, is raising a false claim against the defendants. 5. The 2 nd defendant is no way concerned with the alleged transaction between the plaintiff and the 1 st defendant and that the 2 nd defendant is falsely implicated in the present suit. The defendants have therefore contended that the plaintiff has filed frivolous claim against them and wants to get benefit out of the loss suffered due to his own negligence. Therefore, prayed to dismiss the suit. 6. Based on the above pleadings, the trial Court has framed the following issues for trial: “1. Whether the plaintiff is entitled for compensation for monetary loss amounting to Rs.10,75,000/- as prayed for? 2. Whether the plaintiff is entitled for damages amounting to Rs.3,00,000/- as prayed for? 3. Therefore, prayed to dismiss the suit. 6. Based on the above pleadings, the trial Court has framed the following issues for trial: “1. Whether the plaintiff is entitled for compensation for monetary loss amounting to Rs.10,75,000/- as prayed for? 2. Whether the plaintiff is entitled for damages amounting to Rs.3,00,000/- as prayed for? 3. Whether there is cause of action to file the suit? 4. Whether the suit is properly valued? 5. To what relief?” 7. At the time of trial, PW1 was examined on behalf of the plaintiff and Exs.A1 to A48 were marked. On behalf of the defendants, DW1 was examined and Exs.B1 to B6 were marked. 8. Based on the evidence on record, the trial Court has dismissed the suit. Aggrieved by the said judgment and decree, the present appeal is filed by the unsuccessful plaintiff. 9. Heard the submissions of N.Srinivasa Rao, learned counsel for the appellant and Sri A.P.Suresh, learned counsel for the respondents. 10. The learned appellant counsel submitted that the judgment passed by the trial Court is totally devoid of merits and contrary to the evidence placed on record. That the trial Court has failed to appreciate the documentary evidence adduced by the plaintiff under Exs.A1 to A48 and that the said documents establish their case against the defendants and that the trial Court ought to have decreed their suit and that their claim was admitted by DW1 during his cross examination and the same is ignored by trial Court. He further argued that the unfair trade practices have been adopted by defendant No.1 and that they have committed a breach of contract basing on false and fictitious promises and thus, they are liable to pay the amount claimed by the plaintiff. He further argued that the plaintiff has suffered a huge loss just because of the careless attitude of the defendant and that it has lost its business contacts and that the plaintiff could prove the negligence and breach of contract committed by defendant No.1 but the trial Court failed to appreciate the same. He further argued that the plaintiff has suffered a huge loss just because of the careless attitude of the defendant and that it has lost its business contacts and that the plaintiff could prove the negligence and breach of contract committed by defendant No.1 but the trial Court failed to appreciate the same. He argued that the trial Court failed to consider the admission made by defendant No.1 that they have deputed one of their engineer to check the compatibility of IV sets to Horizon NXT to the place of plaintiff and that if really the defendant No.1 was not under a contractual obligation, there was no reason for them to send the Engineer to check the compatibility. Thus, if the trial Court has appreciated the evidence in a proper perspective, their suit ought to have been decreed, he therefore prayed this Court to set aside the judgment and decree passed by the trial Court and allow the present appeal. 11. The learned respondents counsel, on the other hand, has submitted that the case of the plaintiff is based on a fictitious claim and that the plaintiff cannot take advantage of his own wrong and make the defendant responsible to pay for the same. He further argued that there is no default committed by the defendants and that the plaintiff himself has raised an indent for supply of intrafix Eco IV sets inspite of the defendant expressing that they cannot supply the compatible Iv sets for Horizon NXT and that now the plaintiff cannot fix up the defendant for the non compatibility of the IV sets. He further submitted that the trial Court has appreciated the entire evidence on record and has arrived at a proper decision of dismissing the suit and has therefore, prayed this Court to uphold the same. 12. Based on the above rival submissions, this Court frames the following points for consideration: 1) Whether there was any valid contract between the plaintiff and the defendant? If so, whether there was any breach of contract committed by defendant No.1? 2) Whether the plaintiff is entitled for claiming compensation and damages claimed in the suit? 3) Whether the judgment and decree of the trial court is sustainable in law and under the facts? 4) To what relief? 13. If so, whether there was any breach of contract committed by defendant No.1? 2) Whether the plaintiff is entitled for claiming compensation and damages claimed in the suit? 3) Whether the judgment and decree of the trial court is sustainable in law and under the facts? 4) To what relief? 13. POINT NOs.1 AND 2 a) The case of the plaintiff is that the defendants have committed breach of contract for which the plaintiff is claiming compensation as well as damages. Therefore, in the first instance it has to be examined whether there was any valid contract between the two parties. b) A perusal of Ex.A3 reveals that the plaintiff has addressed a mail to one Mr.Modi on 15.03.2012 saying that one of its principal have offered 1000 numbers of Braun Horizon NXT Infusion pumps and that the plaintiff wanted to know whether defendant No.1 can supply IV sets on a regular basis if they buy the above described equipment and he also wanted to know the cost. To this, the defendants have replied on 16.03.2012 stating that they can supply a different brand by name Intrafix Eco IV sets @ Rs.17/- per set. Thus, the plaintiff has enquired as to the availability of the compatible IV sets in the said mail but it cannot be held to be a concluded contract under Ex.A3. c) The plaintiff has filed documents from Exs.A1 to A48 but none of the documents can be taken to be a valid contract between the plaintiff and the defendant. On the other hand, Ex.A8 shows that the defendant has responded to the mail of the plaintiff saying that they do not have the compatible IV sets but they have only Intrafix Eco and it has expressed that it has only Intrafix Eco IV sets @ Rs.17/- per set and that it requested for confirmation if any. Nowhere it is mentioned that they are compatible to the NXT IV sets. To say that there is a breach of contract by the defendants, at first instance there should be a valid contract between them. The plaintiff failed to place any piece of evidence showing that there exists a contract between himself and the defendant. Nowhere it is mentioned that they are compatible to the NXT IV sets. To say that there is a breach of contract by the defendants, at first instance there should be a valid contract between them. The plaintiff failed to place any piece of evidence showing that there exists a contract between himself and the defendant. If at all he has received a confirmation mail saying that the defendant has the compatible IV sets suitable for Horizon NXT, then the plaintiff could have placed the same on record but none of the mails show this confirmation. d) On the other hand, the plaintiff has written to the defendant saying that on a confirmation about the availability of compatible IV sets, he has imported the said Horizon NXT sets and thus, has requested the defendant to ensure the availability of the compatible IV sets. In response to the said mail, immediately the defendant has responded saying that the said model Horizon NXT is sold only in USA and thus, the compatible IV sets are not available in the Indian market. These mails do not in any way confirm the availability of the compatible IV sets in India and if at all the defendant has confirmed in any way that they can supply the compatible IV sets , the plaintiff should have placed the same on record but no such piece of evidence is placed by the plaintiff. In the absence of which, it cannot be held that there was a concluded contract between the plaintiff and the defendant and as a result of which, the defendant cannot be held to have committed any breach of contract. e) Further, PW1 has admitted that under Ex.A1 in the e-mail sent by him he has not mentioned the purpose for procurement of medical equipment mentioned therein and that he also admitted that in reply to Ex.A1, defendant No.1 has given reply stating that they have only the IV sets namely Intrafix Eco for the Horizon NXT Pumps as against the request for compatible IV sets as in Ex.A1. It is the evidence of PW1 that Ex.A8 is the confirmation given by defendant No.1 to go ahead with proposed import of product mentioned in Ex.A1 but a perusal of Ex.A8 reveals that defendant No.1 has clearly expressed that they have only Intrafix Eco IV sets @ Rs.17/- per set, but they have no where mentioned in the said mail that the said Intrafix Eco are compatible to Horizon NXT sets and they further have asked the plaintiff whether he is interested to confirm and that they are awaiting confirmation. Thus, Ex.A8 cannot be taken as a confirmation made by defendant No.1 and PW1 has further admitted that there was no confirmation with regard to availability of product mentioned in Ex.A1 and also that defendant Nos.1 and 2 have not given any confirmation to proceed with the import of 500 units of pre-owned braun horizon NXT pumps from M/s dot.med.com from overseas. To a specific question posed in this regard, PW1 has answered negatively saying that the defendants have not given any confirmation with regard to the availability of the product mentioned in Ex.A1 and also that they have not asked the plaintiff to proceed with the import of the said equipment from abroad. Thus, such an admission by PW1 and also a perusal of the mails addressed by the plaintiff to the defendants and the mails received from the defendant in this regard do not establish any concluded contract between the plaintiff and the defendants. Thus, though the plaintiff is under an impression that Ex.A8 itself is a confirmation, a perusal of Ex.A8 does not reveal the said fact as discussed supra. Therefore, it is held that there is no valid contract between the plaintiff and the defendants and as a result of which there cannot be any breach of contract. When there is no valid contract, it cannot be held that the defendants committed any breach of contracts. Therefore, it is held that the defendants are not liable to pay any amounts as claimed by the plaintiff. When there is no valid contract, it cannot be held that the defendants committed any breach of contracts. Therefore, it is held that the defendants are not liable to pay any amounts as claimed by the plaintiff. f) It is the contention of the plaintiff that one Mr.Mahender Reddy, who is the incharge of the defendants company at Hyderabad has informed him over phone that the infusion sets are compatible with the Horizon pumps and that the said Mahender Reddy would depute one technical expert to help in fixing the IV sets to the Horizon pumps and also that one person by name Ravikanth was sent in the month of October, 2012 and that on their examination, they found that the said sets are not compatible to the Horizon NXT pumps. It is his contention that if at all the defendants were not aware of the incompatibility they could not have deputed a person to examine the compatibility. But on the other hand, it goes against the plaintiff that without any verification and confirmation as to whether the said IV sets would be compatible to the Horizon NXT infusion pumps, the plaintiff has placed an indent for the same and has procured the same at his own risk. g) The mails addressed by the plaintiff do not reveal that the plaintiff had ever enquired with regard to the compatibility of the said IV set Intrafix Eco to that of Horizon NXT Infusion pumps, though the defendants have clarified that they can only supply only Infrafix Eco, the plaintiff did not bother to enquire its compatibility to horizon NXT. h) It is elicited through the evidence of DW1 that as per the request of the plaintiff company they had sent their engineer to check the machine and that they have supplied the IV sets as per the requirement placed by the plaintiff company. h) It is elicited through the evidence of DW1 that as per the request of the plaintiff company they had sent their engineer to check the machine and that they have supplied the IV sets as per the requirement placed by the plaintiff company. DW1 has further admitted that defendant No.1 company is not marketing in India and that he has not given any authorization to import and sell the said machine in India and that their company has no license to market the said machines in India but they sell similar infusion pumps and it is further admitted by DW1 that they never informed that they are not marketing the said products in India i.e. Horizon NXT IV pumps, before they were being imported by the plaintiff company and it is elicited through DW1 that the plaintiff never asked their company about the import supply of the machines. Though the plaintiff tried to elicit from DW1 that defendant No.1 is aware about their import of Horizon NXT infusion pumps, he was not successful in eliciting the said fact from DW1. On the other hand, DW1 has deposed stating that they do not sell the said Horizon NXT Pumps in India but they sell similar pumps. i) A perusal of Ex.B6 reveals that it is a mail addressed by the plaintiff to the defendants on 08.11.2012 saying that to his mail dated 15.03.2012 informing his intention to import 1000 numbers of used Horizon NXT Infusion Pumps and his enquiry with regard to the availability of compatible IV sets he is referred by Mr.Mody to Mr.Mahender Reddy, the Regional Manager, at Hyderabad and that he called Mr.Reddy on 16.03.2012 to which Mr.Reddy has confirmed the availability of compatible IV sets to the Horizon NXT Pumps by name Intrafix eco and quoted a price of Rs.17/- per each set. A perusal of the said mail dated 16.03.2012 which is filed under Ex.A9, reveals that the defendant has never stated that intrafix eco is compatible to Horizon NXT infusion Pumps. Thus, it is the apprehension and assumption of the plaintiff that the said IV set is compatible to Horizon NXT Infusion Pumps. Nowhere in the mail dated 16.03.2012, it is mentioned that the said IV set is compatible to NXT infusion pumps, which falsifies the case of the plaintiff. Thus, it is the apprehension and assumption of the plaintiff that the said IV set is compatible to Horizon NXT Infusion Pumps. Nowhere in the mail dated 16.03.2012, it is mentioned that the said IV set is compatible to NXT infusion pumps, which falsifies the case of the plaintiff. j) The learned appellant counsel has relied upon a decision in Motilal Padmapat Sugar Mills Co. Pvt. Ltd. v. State of U.P. AIR 1979 SC 621 wherein the Apex Court has discussed about the Doctrine of Estoppel and held that the true principle of promissory estoppels therefore, seems to be that where one party has by his words or conduct made the other a clear and unequivocal promise which intended to create a legal relations or affect a legal relationship to arise, knowing or intending that it would be acted upon by the other party and if it is in fact so acted upon by the other party, then the promise would be binding on the party making it and he would not be entitled to go back upon it. If it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. Thus, the counsel argued that though there is no express contract between the plaintiff and the defendants, the communication made between them and the way they have acted upon by supplying the equipment, there seems to be a pre- existing relationship between the parties and thus, it has to be taken as concluded contract and that the defendant cannot go back on the terms of contract. But a perusal of the said emails as discussed supra would reveal that the defendant was clear enough in stating that he has only Introfix Eco IV Set and that nowhere he has committed that it is suitable to that Horizon NXT Injusion Pumps, therefore, it cannot be inferred that there was a pre-existing contract in this case. But a perusal of the said emails as discussed supra would reveal that the defendant was clear enough in stating that he has only Introfix Eco IV Set and that nowhere he has committed that it is suitable to that Horizon NXT Injusion Pumps, therefore, it cannot be inferred that there was a pre-existing contract in this case. k) Further, the learned counsel relied upon a decision in Coffee Board Karnataka v. Commercial Taxes, Karnataka, (1988) 3 SCC 262 wherein it was held that offer and acceptance need not always be in an elementary form, nor does the law of contract or sale of goods required that the consent to a contract must be expressed. Offer and acceptance can be spelt out from the conduct of the parties which cover not only their acts but omissions as well. He further relied upon a decision in Bharat Petroleum Corp Ltd. Vs. Great Eastern Shipping Co. Ltd. AIR 2008 SC 357 wherein it was held that the general rule is that an offer is not accepted by mere silence on the part of the offerree, yet it does not mean that an acceptance always has to be given so in words. Under certain circumstances, offerree’s silence, coupled with his conduct, which takes the form of a positive act, may constitute the acceptance – an agreement sub silentio. Therefore, the terms of the contract between the parties can be proved not only by their words but also by their conduct. Through, these case laws the counsel stressed upon the point that from the conduct of the parties, offer and acceptance can be made out. It is once again reiterated in this regard that the conduct of the party in the present case do not lead to an inference of accepting an offer. The plaintiff has requested for supply of compatible IV set but the defendant has in clear terms stated that it could supply only Introfix Eco IV Sets and nowhere it has specified that it is suitable to Horizon NXT Infusion Pumps and is waiting for the acceptance of the plaintiff. However, there is no further communication in this regard by the plaintiff, thus, it cannot be said to have been an acceptance of the said offer. However, there is no further communication in this regard by the plaintiff, thus, it cannot be said to have been an acceptance of the said offer. l) The only issue that has to be looked into is whether there was a concluded contract between the plaintiff and the defendants with regard to the supply of IV sets compatible to Horizon NXT. There is no evidence on record to show that the defendants have agreed to supply Horizon NXT compatible IV sets to the plaintiff. m) In view of the discussion held supra, it is held that there was no concluded contract between the plaintiff and the defendant and thus, question of its breach does not arise at all. Therefore, the plaintiff is not entitled to claim any compensation or damages. Point Nos.1 and 2 are answered accordingly. 14. POINT NO.3: In view of the reasoned findings arrived at point Nos.1 and 2, it is held that the judgment and decree passed by the trial Court are found to be well reasoned and hence, they are held to be sustainable in law and under the facts and circumstances of the case. 15. POINT NO.4: In the result, the appeal is dismissed upholding the judgment and decree, dated 20.02.2019 passed in O.S.No.833 of 2013 by the learned IX Additional Chief Judge, City Civil Court, Hyderabad. No costs.