Delhi District Court
M/S Jagdamba Tmt Mills Ltd vs M/S Transformers & Rectifiers (I) Ltd on 30 October, 2013
1
IN THE COURT OF SH. LAL SINGH
ADJ03 (SOUTH WEST), DWARKA COURTS COMPLEX, NEW DELHI.
Suit No 371/11/10
M/S JAGDAMBA TMT MILLS LTD
A338 (C), ROAD NO.17,
V.K.I. AREA, JAIPUR
RAJASTHAN ........PLAINTIFF
VERSUS
M/S TRANSFORMERS & RECTIFIERS (I) LTD
S24, 2ND FLOOR, MANISH TWIN PLAZA,
PLOT NO.2, SECTOR11,
DWARKA, NEW DELHI110075.
REGD OFFICE AT:
SURVEY NO.344350
OPP PWD STORES,
SARKHEJ BAVLA HIGHWAY,
VILLAGE:CHANODAR, TALK: SANAND,
DIST.AHMEDABAD382213 ..........DEFENDANT
Date of Institution of the suit: 19/03/2010
Date on which case was reserved for Judgment: 13/9/2013
Date on which Judgment was passed : 30/10/2013
2
JUDGMENT
1 By this judgment I shall dispose off the suit for damages to the tune of Rs.8,71,525/ alongwith mesne profit, pendentelite and future interest filed by the plaintiff against the defendant. 2 The brief relevant facts for the disposal of present suit are that the plaintiff is a company, carrying on its business of manufacturing miled steel ingots, having its registered office at 8, Ganesh Chand Avenue, Saha Court, First Floor, Kolkota,(WB) and works at A127/128 A S.K.S IND area, Reengus, District Sikar, Rajasthan. 3 Defendant is the company engaged in business of manufacturing transformers and rectifiers having its office at S4, 2nd Floor, Manish Twin Plaza,Plot No.2, Sector11, Dwarka, New Delhi. It is averred that the plaintiff being desirous of purchasing the transformers and therefore, approached the defendant and placed the purchase order dated 1st June, 2009 for supply of one "T&R" make transformer 1725X2=3450 KVA, 33KV/575X2,with tapping range+5%to5% in steps of 2.5% by OTCC 3 with 2 core 2 winding alongwith specifications indicated in the annexure 1 forming part of purchase order dated 1st June, 2009 (hereinafter referred to as "said transformer"). It is averred in plaint that total cost of the said transformer as quoted by the defendant was Rs. 14,51,000/. The specification of the said transformer, inter alia specifies maximum extent of no load loss at 3.5KW and load loss at 21.5KW, which is the essential parameter in deciding the cost/benefit of the transformer and its supplier. It is averred that alongwith purchase order dated 01.06.2009, the plaintiff had also issued a cheque bearing number 476963 dated 01.06.2009 for a sum of Rs. 2,00,000/ towards the advance money. It is also averred that purchase order was duly accepted by the defendant and a separate letter dated 05.06.2009 was sent by the defendant to plaintiff specifically accepting the purchase order. The cheque dated 01.06.2009 in a sum of Rs. 2,00,000/ made towards advance payment was duly encashed by the defendant. It is also stated that the defendant in the said acceptance letter categorically stated that the order placed by the plaintiff was already taken up for 4 manufacturing process under work order bearing number 910198. It is averred that the purchase order placed by the plaintiff to the defendant was duly accepted and agreed and plaintiff also made advance payment of Rs. 2,00,000/, thus the contract was entered into between the plaintiff and the defendant. Thereafter, to the utter shock and surprise of the plaintiff, and the utter disregard to the agreement, an email dated 26.06.2009 from Mr. Anil Gupta, Regional Manager(Marketing) of the defendant was received by the plaintiff, wherein the defendant rejected the purchase order dated 01.06.2009. Alongwith the said email, a regret letter dated 25.06.2009 was also attached, wherein the defendant stated that the order price of the said transformer was not acceptable to the defendant. Thereafter, on receipt of email dated 26.06.2009 and regret letter dated 25.06.2009 attached with the said email, plaintiff replied vide letter dated 26.06.2009 expressing displeasure of the communication received from the defendant. Plaintiff vide letter dated 26.06.2009, expressed that there is no possibility of backing out or renegotiation on the specification or price of the said 5 transformer as mentioned in the purchase order which was accepted by the defendant. Defendant was also requested by the plaintiff for the drawings of the said transformer immediately to enable the plaintiff to advise its civil engineer to draw the construction plan for installing the said transformer. Thereafter, plaintiff received a cheque for a sum of Rs. 2,00,000/ bearing number 153730 dated 01.07.2009 drawn on SBI Ahmadabad from the defendant. On receiving the said cheque, the plaintiff again wrote a letter on 09.07.2009 to the defendant expressing displeasure and also expressed that the cheque received was presumed to be return of advance payment for the said transformer which was ordered vide purchase order dated 01.06.2009. Even after, letter dated 09.07.2009, no reply was received by the plaintiff from the defendant. Plaintiff states that this shows the conduct of the defendant and it was made amply clear to the plaintiff that the defendant had no intention to perform the contract. It is averred that the plaintiff in order to meet urgent requirement of transformer, was left with no other option but to place another order for transformer from 6 another vendor. On account of failure on the part of defendant to perform the contract, the plaintiff had to compromise with the parameters of no load losses /load losses. The plaintiff was left with no other option but to place fresh order for transformer with lower specification, thereafter, plaintiff placed purchase order to M/s. M.P. Transformers, for transformer with specification ''one M.P. make 1725x2=3450KVA, 33KV/575X2, Furnace load transformer with tapping range+5% to5% in steps of 2.5% by OTCC with 2 core winding (two transformers in one tank), alongwith others specifications''.
4 It is averred that on account of untimely termination of contract by the defendant, the plaintiff had suffered huge losses in the business and reputation and also had to purchase a transformer for a lower specification. Due to the purchase of the above said transformer for lower specification, the plaintiff has been recurring the losses due to enhancement of electricity @ Rs. 265/ per day and for this plaintiff is claiming a damage from 05.12.2009 to 28.02.2010 which comes to around 7 Rs. 22,525/ and still continued. Plaintiff has sent a legal notice dated 28.07.2009 to the defendant to compensate for the damages to the tune of Rs. 5 lacs apart from cost of transformer. The defendant replied to the said legal notice vide reply dated 01.10.2009. It is stated that plaintiff is entitled to claim damages from the defendant to the tune of Rs. 5,00,000/ towards loss of business and reputation and @ Rs.265/ per day towards no load loss and also towards differential in the amount from transformer ordered to the defendant from the transformer ordered to M/s MP Transformers vide purchase order dated 20.07.2009. The differential amount comes out to Rs. 3,49,000/. It is averred that as the transformer ordered to the defendant was of Rs. 14,51,000/ and the one that has been ordered to M/s MP Transformers for lower specification was for Rs. 18,00,000/, hence, the differential amount comes to Rs.3,49,000/. Plaintiff prays the decree in the sum of Rs. 8,49,000/ towards the damages and damages for recurring loss on electricity @ Rs. 265/ per day which comes to Rs. 27,525/ alongwith interest in favour of the plaintiff against the defendant. 8 5 The defendant has filed the WS. In the WS, the defendant took preliminary objection stating that the suit is not maintainable because parties of the suit did not enter into a contract/ agreement as alleged by the plaintiff. It is also averred by the defendant that there was no terms and conditions have been endorsed by way of letter dated 05.06.2009 of the defendant but the said letter was a business letter of thanks which oftenly used to give by the defendant to the customers. In WS, the defendant also averred that plaintiff as well as defendant are companies and are registered under Companies Act and in the present suit, the main question is that no tender was issued by the plaintiff regarding the said requirement and thus, the acceptance, if any, is revocable. Defendant in WS denied the allegations and averments of the plaintiff. The plaintiff has also filed the replication to the WS and denied the averments of the written statement of the defendant and reiterated averments made in the plaint.
6 Thereafter, vide order dated 18.08.2010, after 9 completion of pleadings, following issues are framed: 1 Whether there was validly concluded agreement between the plaintiff and defendant?............(OPP) 2 Whether the plaintiff is entitled to the decree of damages as prayed?.............(OPP) 3 Whether the plaintiff is entitled to the recovery of damages on account of loss of electricity?...............(OPP) 4 If yes to issue no.2 and 3 above, whether the plaintiff is entitled the interest and to what rate?...............(OPP) 5 Relief.
7 In order to discharge the onus upon the plaintiff of proving the issues, on behalf of plaintiff, PW1 Sh. B.L. Gupta, authorised attorney of the plaintiff and PW2 Sh. Ashok Suman were examined. Whereas the defendant examined only one witness namely Sh. Anil Gupta, Regional Director/authorized attorney of the defendant. 8 I have heard the arguments. Counsel for plaintiff submitted that the plaintiff had placed a purchase order dated 01.06.2009 for supply of one " T & R" make Transformer 1725x2=3450 KVA, 33 KVA/575x2 with tapping range +5% to 5% in steps of 2.5% by OCTC with 2 core 2 winding and other specification to the defendant. He also 10 argued that the purchase order was duly accepted by the defendant vide letter dated 05.06.2009 sent by the defendant to the plaintiff. He also submitted that defendant had duly intimated to the plaintiff that the order placed by the plaintiff had been already taken up for manufacturing process under work order bearing No. 910198. Plaintiff has also issued cheque in a sum of Rs. 2 lacs to the defendant towards the advance payment. He submitted that subsequently defendant malafidely sent an e mail dt. 26/6/2009 to the plaintiff, rejecting the purchase order dt. 1/6/2009. Counsel for the plaintiff submitted that the cheque bearing No. 153730 dated 01.07.2009 in the sum of Rs.2 lacs has been received by the plaintiff without any covering letter, however the same was encashed by the plaintiff under protest and intimation qua this had also been sent to the defendant vide letter dated 09.07.2009. Counsel for the plaintiff has vehemently argued that due to the act of the defendant the plaintiff has to purchase the transformer of lower specification and plaintiff has been recurring losses due to enhancement of electricity approximately @ Rs. 11 265/ per day as well as the plaintiff is entitled for the damages from the defendant for loss of business and reputation and also the differential amount for purchasing the transformer of lower specification at the higher price from M/s M.P Transformers. Counsel for plaintiff also argued that defendant is liable to pay for breach of contract. Counsel for plaintiff has relied upon the judgments of Chief Secretary Vs. Kothari and Associates (2003) 3GLR 2177, M/s. Nanak Builders and Investors Pvt. Ltd. Vs. Vinod Kumar Alag AIR 1991 DELHI 315, Sunrise Enterprises Vs. Union of India 2001 VAD (Delhi) 140, S.K. Gupta Vs. Avtar Singh Bedi & Ors. 122(2005) Delhi Law Times 437.
9 On the other hand, counsel for the defendant submitted that after receiving the purchase order from the plaintiff, the said order was handed over to Engineer of Work shop who examined the rate fixed by the plaintiff and returned the same to the defendant by stating that the price of the transformer had already been increased. Thereafter, the defendant cancelled the said purchase order of the plaintiff vide letter 12 dated 25.06.2009 and E. mail order dated 26.06.2009. He further submitted that as per contract Act acceptance of offer must be absolute and it should be expressed in some usual and reasonable manner, unless the tender prescribed by any other manner in which it should be accepted. He submitted that defendant never offered to sell the transformer at Rs. 14, 51000/ and defendant did not accept such an offer by letter dated 25.06.2009 and thus the negotiation did not proceed beyond the stage of offer and counter offer and did not materialize into binding contract. Counsel for the defendant also submitted that regarding the damages, there is no specific allegation regarding the market rate prevailing at the time. He further submitted that plaintiff did not adduce any evidence to prove the interest etc. Counsel for the plaintiff submitted that the suit of the plaintiff is liable to be dismissed.
10 I have considered the rival submissions and perused the file.
11 My issue wise findings are as under: 13 ISSUE NO.1 Whether there was validly concluded agreement between the plaintiff and defendant?..............(OPP) The onus to prove the issue No.1 is upon the plaintiff.
The plaintiff has examined PW1 Sh. B.L Gupta and PW2 Sh. Ashok Suman to prove the above said issue. PW1 Sh. B.L. Gupta has filed his affidavit Ex.PW1/A and also relied upon document Ex.PW1/2 i.e the purchase order, acceptance letter Ex.PW1/3, statement of account of the plaintiff, reflecting debit of Rs.2 lacs towards advance payment to the defendant Ex.PW1/4. PW1 has also relied upon email dt. 26/6/2009 alongwith regret letter dt. 25/6/2009 Ex. PW1/5 (collectively). Also relied upon the copy of the letter dt. 26/6/2009 Ex.PW1/6, copy of the letter dt. 9/7/2009 with postal receipt and an acknowledgment card Ex.PW1/7 (collectively), quotation given by the vendor i.e. M/s. Uttam Bharat Electricals (P) Ltd. Ex.PW1/8, statement of account and copy of invoice dt. 9/10/2009 of the M/s. M.P. Transformers Ex.PW1/9 and Ex.PW1/10, legal 14 notice dt. 28/7/2009 Ex.PW1/11 alongwith postal receipt Ex.PW1/12 and reply dt. 1/10/2009 vide Ex.PW1/13 to the legal notice.
Document dated 01.06.2009 i.e. Ex.PW1/2 is the purchase order. As per document Ex. PW1/2 ie. Purchase order the rate of transformer has been mentioned as Rs.14,51,000/. The said purchase order Ex.PW1/2 has been issued by plaintiff to the defendant. In purchase order Ex.PW1/2 description of transformer and the rate of transformer has been clearly mentioned alongwith terms and conditions. I have also perused the document Ex.PW1/3 which is acceptance letter of the defendant in response to the purchase order of transformer placed by the plaintiff. In the letter of order of acceptance dated 05.06.2009 Ex.PW1/3 issued by defendant to the plaintiff, it has been categorically mentioned by the defendant in the said letter that the order of the plaintiff has already been taken up for manufacturing process under work order bearing No. 910198. It is also specifically mentioned in letter Ex.PW1/3 i.e letter of order acceptance that the defendant will try their level best to manufacture 15 the same as per delivery schedule which is mentioned in P.O. In the acceptance letter Ex.PW1/3 on behalf of the defendant, it is categorically stated that '' we once again thank you for your confidence on ''T & R (Ltd.)''that shall be unfailingly reciprocated with, by our quality product back with long standing expertise and experience and our core competence''. Thereafter vide E.mail 26.06.2009 alongwith regret letter dated 25.06.2009 sent by the defendant to the plaintiff vide Ex.PW1/5, whereby the defendant informed to the plaintiff that the ordered priced for transformer are not acceptable to the defendant because the said order transformer is totally new design and new parameters and cost of raw material does not allow them to accept the price that has been mentioned in the purchase order. The defendant vide E.mail letter dated 25.06.2009 had given counter offer considering PO's parameters and stated that the defendant can sell the same to the plaintiff for Rs.26 lacs. Thereafter, in response to E.mail dt. 25/6/2009 of the defendant, plaintiff vide letter dt. 26/6/2009 Ex.PW1/6 issued a letter to the defendant stating therein that 16 alongwith purchase order, plaintiff has also sent a cheque of Rs.2,00,000/ in advance and having accepted the advance, the defendant has confirmed the acceptance of order vide letter dt. 5/6/2009. In the letter dt. 26/6/2009 the plaintiff also reminded that the defendant had confirmed that manufacturer of the transformer was taken up under work order No. 910198. In the said letter also the plaintiff stated that there is no possibility for backing out or renegotiation on the issue of basic specification/price of the transformers mentioning in the purchase order placed by the plaintiff to the defendant and which as per plaintiff accepted by the defendant. In the letter dt. 26/6/2009 vide Ex. PW1/6, plaintiff categorically stated that plaintiff is ignoring E.mail dt. 25/6/2009 of the defendant and requested the defendant to execute the work as per order dt. 1/6/2009 and arranged to deliver the ordered transformers within delivery schedule indicated in the said purchase order. Hence, it is amply clear that vide letter dt. 26/6/2009 Ex.PW1/6 plaintiff has categorically rejected the E.mail letter dt. 25/6/2009 of the defendant whereby the defendant on the ground of 17 escalation of price of the transformers due to new design and new parameters and cost of raw materials gave a counter offer to sell the transformer @ Rs.26 lacs. Thereafter, vide letter dt. July,9, 2009 the plaintiff again sent a letter to the defendant stating that defendant without reply to the letter dt. 2/7/2009 has sent cheque beairng No.153730 dt. 1/7/2009 in the sum of Rs. 2 lacs drawn on SBI, Ahmedabad, in which plaintiff presumed the same against the advance which had been paid by the plaintiff alongwith the purchase order dt. 1/6/2009. In the letter dt. 9/7/2009 plaintiff also stated that as no covering letter has been annexed with the said cheque, hence, it is amply clear that defendant has no reply to the issues raised by the plaintiff in letter dt. 2/7/2009. In the said letter dt. 9/7/2009 the plaintiff also stated that the cheque is being presented by the plaintiff under protest without prejudice to the rights to claim damages initiate other proceeding against the defendant company on account of unilateral termination of the contract.
Perusal of aforesaid documents clearly indicates that 18 there has been valid contract entered into between the parties qua purchase and sale of transformer as mentioned above. Vide purchase order Ex.PW1/2 dt. 1/6/2009 the plaintiff gave purchase order to the defendant for the purchase of transformer, of above mentioned specification and price as mentioned in the purchase order. The purchase order was duly accepted by the defendant vide Ex.PW1/3 . In Ex.PW1/3 which is letter of acceptance issued by the defendant to the plaintiff, it is categorically mentioned in the said letter stating therein that " your Order has already been taken up for manufacturing process under WORK ORDER #910198 for 1725x2=3450KVA,33KV/575x2, Furnace Load Transformer with tapping range +/ 5% in step @ 2.5 % which may be used as a reference for future correspondence while inquiring for stages of manufacturing and completion status/date. We will try my level best to manufacture the same as per your delivery schedule which is mentioned in P.O."
Bare reading of the letter Ex.PW1/3 dt. 5/6/2009 makes it amply clear that the defendant has accepted the purchase order given by 19 the plaintiff for purchase of transformer in the above specification and defendant also promised to manufacture the same as per delivery schedule as mentioned in the P.O. It also reflects that even the purchase order has already been taken up for manufacturing process under work order 910198. Once the defendant accepted the purchase order of the plaintiff and also placed order for manufacturing the same and also promising to deliver the same as per delivery schedule, it is clear that there has been valid contract entered into between the parties. The subsequent counter offer on the ground of escalating price of the transformer given by the defendant to the plaintiff, is seems to be an after thought of the defendant and by subsequent counter offer defendant can not annul or repudiate already valid contract entered into between the parties. Furthermore, defendant initially even accepted the advance cheque of Rs.2 lacs sent by the plaintiff to the defendant alongwith the purchase order. Once the defendant accepted the purchased order placed by the plaintiff and also confirmed that order has been placed for manufacturing under work order and 20 promised to deliver the same as per schedule, the defendant can not back out from the contract/agreement entered between the parties. Hence, in view of the above facts and circumstances, there was a validly concluded agreement between the plaintiff and defendant. Therefore, issue No.1 is decided in favour of plaintiff and against the defendant. ISSUE NO.2 Whether the plaintiff is entitled to the decree of damages as prayed?(OPP).
The onus to prove this issue also is upon the plaintiff. It is the contention of the plaintiff that on failure of the defendant to perform the contract as per purchase order Ex.PW1/2, and in order to meet other requirement of the transformer for the purpose of implementation of schedule of the project which already undertaken by the plaintiff, plaintiff was left no other option but to place another order for transformer from another vendor of lower specification as compared to transformer ordered by the plaintiff to the defendant, and that also of higher price. As per 21 plaintiff initially after failure of defendant to perform the contract as per purchase order, the plaintiff while placing the order, the transformer from another vendor, price of the transformer with the same specification ordered earlier to the defendant had increased numerously. The plaintiff has also placed the quotation given by the one of the vendor M/s. Uttam Bharat Electricals (P)Ltd. Vide Ex.PW1/8 for the transformer with same specification as ordered to the defendant and as per which the price for transformer had been increased numerously as compared to the transformer for which order was placed to the defendant. It is the contention of the plaintiff that thereafter the plaintiff placed the purchase order to M/s. M.P. Transformers for a transformer with lower specification as compared to the transformer ordered by the plaintiff to the defendant. The plaintiff has also placed the invoice Ex. PW1/10 of M/s. Madhya Pradesh Transformers, as per which the price of transformer per unit is shown as Rs.18 lacs. Plaintiff has also placed the ledger account Ex.PW1/9 showing that the plaintiff also paid Rs.3 lacs in advance vide cheque 22 bearing No.476975 dt. 20/7/2009 towards advance payment to M/s. M.P. Transformers. It is contention of the plaintiff that due to failure of the defendant to perform the contract, the plaintiff was compelled to purchase the transformer from the M/s. M.P. Transformers, of lower specification and also of higher price and hence, the defendant is liable for damages as well as for the differential amount as damages which comes out to Rs. 3,49,000/.
It is apparently clear that due to nonperformance of the agreement entered into between the plaintiff and defendant, as well as failure of the defendant to deliver the transformer of the specification as mentioned in purchase order Ex.PW1/2 even after receiving the advance and acceptance of the purchase order by the defendant, the plaintiff has been certainly suffered losses/damages as the plaintiff was compelled to purchase some other transformer of lower specification from M/s. M.P. Transformers for the higher rate, in comparison of the purchase order placed to the defendant by the plaintiff vide purchase order Ex.PW1/2. 23 Hence, the defendant is liable for damages for breach of contract and differential amount as damages which was paid by plaintiff for purchase of transformer of lower specification in high rate. Therefore, issue No.2 is accordingly decided in favour of the plaintiff and against the defendant. ISSUE NO.3 Whether the plaintiff is entitled to the recovery of damages on account of loss of electricity?(OPP).
The onus to prove this issue is upon the plaintiff. It is the contention of the plaintiff that after failure of the defendant to execute the agreement entered into the parties, the plaintiff placed purchase order to M/s M.P. Transformers, for transformer with the specification i.e. " one make 1725x2=3450KVA, 33KV/575X2,with tapping range+5%to5% in steps of 2.5% by OTCC with 2 core winding (two transformers in one tank) with other specifications'' and the said transformer was of lower specification as compared to the transformer ordered by the plaintiff to the defendant. As per plaintiff, due to the act of the defendant, the plaintiff 24 has to purchase the above said transformer of lower specifications and plaintiff has been recurring losses due to the enhancement of electricity approximately @ Rs.265/ per day. Plaintiff has examined PW2 Sh. Ashok Suman, electrical consultant. PW2 stated in his affidavit Ex.PW2/A that no load electricity consumption of furnace transformers through out the period, it is energized for
a) The transformer delivered by M/s. Madhya Pradesh Transformers is 5.31 KWH per hour and
b) The transformer for which the order was placed by the plaintiff to the defendant would have been 3.50 KWH per hour.
It is stated in the affidavit of PW2 that thus a difference of 1.81 KWH per hour. As per PW2, the estimated loss suffered by the plaintiff at then commercial electricity rate per unit which was Rs.4.41 per KWH, which comes to Rs.191.57/ per day. In his cross examination PW2 also stated that due to use of transformer of lower specification "no load loss" would increased. He also admitted in his cross that the loss of electricity occurred due to use of lower specification of electric 25 transformer. PW2 has not stated as to what basis the difference of 1.81 KWH per hour has been mentioned in document Ex.PW2/2. PW2 has also not categorically specified the parameters for arriving at the conclusion, for difference of 1.81 KWH per hour qua no load loss, between the transformers of M.P. Transformer and transformer of the defendant. Only stating in the affidavit of PW2 that transformer for which the order was placed by the plaintiff to the defendant no loss would have been 3.50 KWH per hour and transformer of M.P. Transformer would be of 5.3 KWH is not sufficient. The plaintiff has to prove the same by specifying the parameters of any test etc. for arriving at the said conclusion for difference between two transformers but the plaintiff failed to prove the same. The plaintiff ought to have shown the documents so as to prove the actual loss of electricity.
PW2 in his cross examination has admitted that due to use of a transformer of low specification "no load loss'' would increased. He also admitted that in case M/s. Madhya Pradesh Transformer were in 26 position to supply higher specification transformer then plaintiff would not have suffered losses. PW2 also categorically admitted that loss of electricity occurred due to use of lower specification transformer. From the testimony of PW2 it is clear that loss of electricity was due to low specification transformer purchased by the plaintiff from the M/s. Madhya Pradesh Transformer. After failure of agreement/contract to deliver the transformer as specified in purchase order Ex.PW1/2, by the defendant, the plaintiff themselves opted to purchase transformer of low specification from M/s. Madhya Pradesh Transformer. To avoid the loss of electricity the plaintiff could have purchase the transformer of higher quality or specification from any other company. Once the plaintiff opted to purchase transformer of low specification from M/s. Madhya Pradesh Transformer than for loss of electricity, the present defendant can not be burdened with liability for loss of electricity due to low specification transformer purchased from other company than the defendant. Moreover, the plaintiff has failed to prove the parameters for reaching the difference 27 qua no load loss qua the transformer of M.P. Transformers and transformer of defendant for which purchase order was given by the plaintiff. Hence, keeping in view the facts and circumstances, the plaintiff is not entitled to recovery of damages on account of recurring loss of electricity from defendant. Therefore, issue No.3 is decided against the plaintiff and in favour of the defendant.
ISSUE NO.4.
If yes to issue no.2 and 3 above, whether the plaintiff is entitled the interest and to what rate?(OPP).
The onus to prove this issue is upon the plaintiff. As discussed above issue No.2 is decided in favour of the plaintiff and issue No.3 has been decided against the plaintiff. Hence, it is clear that the plaintiff is entitled for the damages only as observed in issue No.2 for the damages for breach of contract and differential amount for the purchase of transformer from M/s. Madhya Pradesh Transformers. I am also of the view that the plaintiff is entitled for interest @ 9% per annum from the 28 date of filing of suit till its realization.
Relief As issue No.1 ,2 and 4 are decided in favour of plaintiff and against the defendant and issue No.3 is decided against the plaintiff and in favour of the defendant. In view of the specific findings on the aforesaid issues, the suit of the plaintiff is decreed as under:
i) A decree of recovery of damages in the sum of Rs.
3,49,000/ alongwith interest @ 9% per annum from the date of filing of the suit till realization is passed in favour of plaintiff and against the defendant.
ii) The plaintiff is also entitled to cost.
12 Decree sheet be prepared accordingly.
13 File be consigned to record room.
ANNOUNCED IN THE OPEN COURT
ON 30/10/2013
(LAL SINGH)
ADDL. DISTRICT JUDGE03,
DWARKA COURTS, NEW DELHI.
29
Suit No 371/11/10
M/S JAGDAMBA TMT MILLS LTD
VERSUS
M/S TRANSFORMERS & RECTIFIERS (I) LTD
30/10/2013
Present: None.
Vide separate judgment of even date, issue No.1 ,2 and 4 are decided in favour of plaintiff and against the defendant and issue No.3 is decided against the plaintiff and in favour of the defendant. Hence, suit of the plaintiff is decreed in view of the specific findings on the aforesaid issues.
Decree sheet be prepared accordingly.
File be consigned to record room.
(LAL SINGH) ADDL. DISTRICT JUDGE03, DWARKA COURTS, NEW DELHI.