Delhi High Court
Smt. Prem Lata vs M.C.D. on 16 August, 2002
Equivalent citations: AIR2003DELHI211, (2003)134PLR1
Author: R.C. Jain
Bench: R.C. Jain
JUDGMENT Usha Mehra, J.
1. Appellant/plaintiff submitted her tender for the supply of 5000 street light brickets on 4th of June, 1965 to the respondent. The said tender was accepted and the supply order was placed on her on 8th June, 1965. According to the plaintiff, the said supply order contained incomplete information. The details were missing with regard to type of hold to be provided in the refectories. That the complete details were supplied to her only on 9th August, 1965, hence the delay in supply. Moreover for lack of details and delay in furnishing the details she suffered losses. She, therefore, made claim for the balance payment, damages, interest and refund of the earnest money as well as the price of the goods supplied in excess, total claim amounting to Rs. 14,000/-.
2. That the suit of the appellant was contested by the respondent, inter alia, on the grounds that complete information was furnished in the supply order dated 8th June, 1965. Moreover as and when any information was sought the same was supplied immediately and within time. But the material supplied by the appellant was of inferior quality, hence the respondent rejected the same. That the number of brickets supplied. were 3,667. Payment for 3,534 brickets was made. Respondent admitted that an amount of Rs. 3,255.92 paise was still due. Respondent also admitted receipt of 1300 holders excess which were lying with them. That the respondent was prepared to pay the market price for the same.
3. On the pleadings of the parties number of the issues were framed, relevant for purposes and the decision of which is assailed in this appeal are reproduced as under;
Issue No. 2Whether the order dated 8.6.65 is incomplete and deficient in details about the goods to be supplied as alleged? It so, its effect? OPP Issue No.3 Whether the goods were supplied to the deft. in time? If so, its effect? Opp Issue No. 4 Whether the goods supplied were not in accordance with the order and were of inferior quality? OPD Issue No.5 What quantity of the goods was supplied to the deft.? OPP Issue No.7 Whether the deft, was competent and justified to levy the penalty and forfeit the security of the plaintiff? If so, to what effect? OPD Issue No. 8 Whether the plaintiff is entitled to recover amount from the defendant? If so, to what extent?
Issue No. 10Is the pltf. entitled to any damages etc.? OPP Issue No. 11 Is the pltf. entitled to any interest? If so, for what amount? OPP
4. All the issues have been decided vide the impugned judgment against the appellant. Issue No. 2 to 5 & 7 to 11 for purposes of disposal can be clubbed together. On the allegations of incomplete and deficient details, inferior quality and delay, overwhelming evidence was led by the respondent/MCD to prove that details with full particulars were furnished to the appellant in the supply order dated 8th June, 1965 itself. Moreover, it was never the case of the appellant that material particulars wee missing. As per her own showing what she meant by incomplete order was that the two samples submitted by her to respondent who never informed to her as to which sample was approved. Secondly commencement period was not indicated, the tender was submitted with the unassembled samples whereas the respondent desired supply in the assembled from which according to the appellant was not practicable.
5. We find the above arguments contrary to the facts available on the record. So far as the furnishing of the details is concerned those were given to her as is apparent from Ex. DW6/1 i.e. the copy of the order for supply of 5000 brickets. Comprehensive details were furnished therein, therefore to our mind, the learned trial court was right in concluding that all necessary and material details were duly furnished to the appellant herein vide Ex. DW6/1. Appellant on the basis of those details could have worked out which of the sample matched with those details. Be that as it may, this appellant was informed vide respondent's letter dated 26th June, 1965 Ex. PW6/7 that the sample marked "R" was approved. Further the appellant was asked to commence the work from 10th July, 1965 and complete the same within 4/5 months. The stipulated date of completion was given up to 10th November, 1965. The documents relied by the appellant Ex. P4 dated 28th/30th July, 1965 in which the clarification on 4 points were sought by the respondent was duly replied. In spite of receipt of the clarifications this appellant did not commence the work in time nor supplied the material in time. It was for the First time that this appellant asked for the type of reflectors to be supplied. While clarifying the quarry raised by the appellant, it was indicated that the appellant herein was putting off the supply on one pretext or the other and which she was doing in order to delay the execution of the contract and making out excuse for extension of delivery period indirectly because she failed to adhere to the delivery schedule stipulated in the order. It was reiterated that the reflectors required were of type 'B'. She was further requested to make the supply immediately. In the meantime the respondent also indicated that it would consider her request for extension of delivery period. Vide letter dated 3rd August, 1965 (Ex. D5), respondent even agreed to accept the supply of the unassembled from i.e. the shade and accessories and pump separate but made it clear that the pipes pieces, the bush, nipple and holder shall be supplied as assembled. Again on 22nd August 1965 vide Ex. D6, this appellant was apprised of the fact that all her querries having been answered vide letter dated 28th June, 1965, 30th July, 1965, and 3rd August, 1965 there was no reason to delay in execution of the order. It was regretted that in spite of clarification having been given, the appellant herein had not made the supply till that date i.e. 21st August, 1965. A final reminder was issued to this appellant to supply immediately without entering into further correspondence. It was only on 19th September, 1965 that this appellant intimated that the material was ready. She was informed that the material would be inspected on receipt at the store of the respondent. The fact that appellant committed the delay in commencing the work has in fact been admitted by her vide letter dated 24th September, 1965 Ex. D8 wherein she admitted that due to unfortunate disturbances or Pakistani war with India, G.I. Pipes arrived late and brass holders from Phagwara could not be received in spite of reminders to the manufactures. Even the supply of holders was awaited. Only 3000 Nos. of reflectors were ready, the rest were under manufacturing process. She further mentioned that only after receipt of intimation from Phagwara that the ret of the supply could be made. This letter was followed by another letter dated 29th September, 1965 Ex. D-9 wherein she intimated that 1250 Nos. of street light brickets with reflectors, nipples and wood bushes had been dispatched and another 1250 Nos. would be booked subsequently. these documents are clear indications that it was this appellant who committed delay in execution of the contract from the day one. She had been delaying by unnecessary entering into correspondences on one pretext of the other. In the tender order dated 8th June, 1965 all details had in fact been furnished and even subsequently vide letter dated 28th June, 1965 whatever clarifications were sought had been answered still the appellant did not commence the supply in time. Hence, the learned trial court's conclusion that the delay in executing the contract was that of the appellant cannot be faulted. From the documents as discussed above it becomes clear that it was in fact this appellant who committed breach of the terms of the contract by not adhering to the schedule fixed for the supply of the goods. The decision of the learned trial court on issues No.2 and 3 is based on the sound reasoning and the material available on record, therefore, we find no infirmity in the same.
6. Now turning to the question of material being of inferior quality, the respondent vide its evidence to show that the goods were not up to the standard and that was the reason the appellant herein had to reject the same. Regarding quantity/number of goods supplied, it has been proved on record that only 3,667 pieces were supplied by the appellant. Appellant miserably failed to prove that the number of pieces supplied were 5000. The husband of the appellant appearing as PW-6 could only prove that 1250 pieces of street light brickets complete in all respect were supplied till the last week of September, 1965 and another 1250 pieces complete in all respect were supplied in the 1st week of October, 1965 which were received by the respondent and for which 90% payment was made. Thereafter another 1100 pieces were supplied. Copy of the details is Ex. PW6/12. The respondent made 90% payment against this bill and stated that appellant could not prove that any other material was supplied. Therefore, the learned trial court in view of this admission could not have rendered any to her verdict. Respondent accounted for 3,667 brickets, that according to respondent was the supply made by the appellant. We see no reason to differ with the conclusion arrived at by the learned trial court which is based on sound reasoning.
7. Appellant herein also failed to establish as already pointed out above that the supply was made in time. As per the term of the contract Ex. DW6/1, the respondent was justified in forfeiting the earnest money and the security. The appellant since failed to establish any damages or negligence on the part of the respondent, therefore, the learned trial court rightly concluded that this appellant was not entitled to damages nor entitled to interest.
8. For the reasons stated above, we find no merit in the appeal. Dismissed but with no order as to costs.