Delhi District Court
M/S. Indian Oil Corporation vs M/S. Mastana Jogi International Pvt. ... on 21 December, 2011
1
IN THE COURT OF MS. SUJATA KOHLI
ADDITIONAL DISTRICT JUDGE(WEST)
TIS HAZARI : DELHI
C.S. No.266/10
M/s. Indian Oil Corporation
World Trade Centre,
Babar Road,
New Delhi.
.....Plaintiff
VERSUS
M/s. Mastana Jogi International Pvt. Ltd.,
A-96-97-99, DDA Complex,
Okhla Industrial Area, Phase-II,
New Delhi-110020.
...Defendant
Date of filing of the suit : 21.03.1992
Date of reserving of the Judgment : 25.11.2011
Date of delivering of the Judgment : 21.12.2011
JUDGMENT:
The present suit has been filed by Indian Oil Corporation for recovery of Rs.10,57,370.62p alongwith interest from the defendant, towards damages and loss (being differential cost on higher rate) sustained by the plaintiff due to the breach of contract by the defendant in carrying out its part of the contract under a purchase order No.288 dated 03.02.1989, which was finalized against public tender floated by the plaintiff and had been opened on 27.12.1988. Under the Purchase Order awarded to the defendant, defendant was to supply consumer cards, booklets/domestic gas consumer cards as well as covering letter pads of the description and quantities as described in the schedule referred in the plaint.
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
22. It is alleged that the delivery schedule was part of the conditions in the purchase order with minimum supply stated therein and that after having accepted the purchase order containing the schedule and the other terms and conditions, the defendant made default and failed to honour its commitment despite repeated reminders. Due to the failure of the defendant to keep up the delivery schedule, there being a considerable delay a breach was committed by the defendant also due to the fact that the supply as made was short and ultimately the plaintiff had to get the remaining purchase order executed from the open market after inviting tenders.
3. Further alleged that as per the the relevant clauses of the purchase order, purchase order was to be read in conjunction with the general terms and conditions of the plaintiff's 'tender agreement' and as per Clause 4 of the purchase order, the prices as fixed were to remain 'firm' till the completion of the entire purchase order, and further that delayed delivery would render the defendant liable for damages on the unexecuted quantity @ ½ % per week upto a maximum of 10% as stipulated therein, further that in case of delayed delivery, plaintiff after the due date had the right to procure the material at the risk and cost of the 'party' and to recover the extra expenses from the 'party' in addition to the liquidated damages, besides the right of the plaintiff company to initiate any other action against the party, under the law.
4. It is the further case of the plaintiff that after having accepted the purchase order, alongwith all its terms and conditions, the defendant started raising demands to increase the prices for the material to be supplied and the first of such demand being vide its letter dated 02.03.1989. Same was not accepted by the plaintiff at any stage, since the price was to remain 'firm' as per the purchase order.
5. As per the plaintiff the defendant had committed breach of contract under the purchase order by making a short supply of the material of a total of 20,11,900 Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
3domestic gas consumer cards and total of 14,793 covering letters. Further alleged that plaintiff in accordance with Clause 2 of the purchase order, deducted an amount of Rs. 47,868.68p from the bills raised by the defendant on account of the delay in delivery and thereafter no further deliveries were made by the defendant in protest of the deductions so made.
6. Further alleged that plaintiff issued repeated reminders for the remaining delivery, vide letters dated 13.06.1989, 16.02.1990 and 24.05.1990 but, the defendant instead of supplying the materials, persisted on his demands to increase the price of the remaining material and also to refund the deductions already made by the plaintiff from the earlier bills due to delayed delivery. It is further alleged that vide letter dated 04.06.1990 defendant informed the plaintiff that it was no longer in a position to supply the material on the price mentioned in the purchase order.
7. It is further the case of the plaintiff that the inordinate delay in delivery of part material and refusal to deliver further material resulted in great loss to the plaintiff corporation who needs these materials on a day-to-day basis to carry on its functions. The plaintiff was therefore, constrained to procure the balance material from alternate sources, at much higher prices resulting in great monetary losses to the plaintiff and further alleged that plaintiff informed the defendant vide letter dated 06.02.1991 about these facts and that the reply given by the defendant to the same was not found satisfactory by the plaintiff.
8. Further alleged that plaintiff invited fresh public tenders on 09.10.1991 for supply of the balance materials, wherein 7 'tenderers' participated and the supply was finalized as per the detailed schedule of the quality, rates, amount and also showing the names of the different parties therein as contained in Para 17 of the plaint, and alleged that plaintiff has already received the said remaining materials from the other suppliers Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
4and also made the payments there for in which they incurred an additional cost of Rs. 10,57,370.62p in all and the details of the calculations have also been given in Para 17 of the plaint showing the comparative rates decided between the plaintiff and defendant and the increased rates on which the plaintiff had to procure the balance material.
9. Plaintiff also claims to have issued a legal demand notice to defendant on 14.10.1991 demanding the payment of the additional cost but after taking two extensions for giving reply, ultimately the reply dated 14.02.1992, received by the plaintiff on 17.02.1992 was not found satisfactory by the plaintiff and accordingly, the plaintiff has come to Court.
10. Defendant on the other hand has taken the stand in its written statement, pleading that there was no concluded contract between the parties and none could have come into existence without there being any formal agreement between them and that even the conditions in the purchase order in question, required execution of an agreement. According to him, purchase order cannot be treated as a contract, since the former is a unilateral act of the plaintiff without there being any consensus ad idem.
11. The version of the defendant is that plaintiff by a letter dated 01.02.1989 informed the defendant of its intention to place an order on the defendant against their public tender for supply of 25,00,000 consumer booklets and 25,000 forwarding letter pads as per defendant's quotation value which was about Rs.25,00,000/- exclusive of taxes and as per the defendant, before issuing the purchase order no.288 dated 03.02.1989, there should have been executed an agreement between the parties.
12. Defendant further claims that plaintiff had no authority and power to unilaterally fix a delivery schedule and other conditions stipulated in the purchase order, which according to him are arbitrary and further that the terms could have been binding on both parties only if there had been an agreement/contract.
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
513. Defendant also refers to the condition that prices were to remain firm, and alleges that this condition was also unilaterally imposed, never accepted or agreed to by the defendant at any point of time and the plaintiff had no right to impose such terms unilaterally.
14. Further it is also the defence that assuming but not admitting there being any formal contract between the parties and time being of the essence, defendant claims that it was due to the unavailability and scarcity of the required paper in the market, which made it impossible for the agreement to be performed, on account of the 'plaintiff' and accordingly, the said purchase order seized to bind the defendant and had become nonest.
15. In para 2C of the preliminary objections of the defendant, it is stated that plaintiff vide its letter dated 29.03.1989 granted a last extension for first delivery by one month and therefore, the alleged breach of the agreement had already been committed by the defendant on April 30, 1989 and in any event on 30 th July of the same year and as such plaintiff ought to have taken steps within a reasonable time thereafter for making alternate arrangements.
16. Defendant further goes on to submit that even assuming that he had accepted the purchase order alongwith all conditions therein, the same stood frustrated as defendant was perfectly within his right to demand for increasing the rates for the material to be supplied as was intimated by him by letter dated 02.03.1989 and also by subsequent letters. Defendant further alleges that he was assured that the rates will be revised and further that a number of requirements mentioned in the purchase order were revised from time to time by negotiations between the parties. Defendant has also relied upon his letter dated 31.03.1990 wherein according to him it had expressed inability to execute the order on the existing rates.
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
617. Defendant also attributes delay on the part of plaintiff who according to him did not clear the cover of consumer booklets on time.
18. Defendant also avers that defendant 'refused delivery' of the materials to the plaintiff not only in protest of the deductions made by the plaintiff but also because of unreasonable attitude of the plaintiff in not revising the rates despite assurances given. Defendant has relied on several letters particularly i.e. 13.06.1989, 16.02.1990, 24.05.1990, 31.03.1990 for their contents and submits that the defendant had even much earlier, informed the plaintiff that he will not be able to supply the material on existing rates. He denies having committed any breach whatsoever. Defendant further avers that he is not responsible for any delay and or refusal to deliver material, which is solely due to inaction on part of plaintiff, in not revising the rates and also making illegal deductions from the earlier bills of the defendant.
19. Defendant has also denied that plaintiff purchased the balance material from alternate sources at much higher prices and suffered monitory losses.
20. Through and through defendant has relied upon the entire correspondence between the parties and has also relied on letters dated 06.02.1991, 18.02.1991 and various other letters.
21. Plaintiff in his replication has denied the stand of the defendant and reiterated its version stating that an enforceable contract came into existence between the parties and that the preliminary objection of the defendant that there was no enforceable contract was simply a technicality in order to wriggle out from the concluded contract.
22. Apart from this, defendant has also disputed the competence of Ms.Nishi Sehgal, Assistant Manager, to sign and verify the plaint to do all other necessary acts on behalf of the plaintiff. In other words, the suit was not duly instituted by a competent person.
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
723. On the basis of the pleadings, following issues were framed:-
1. Whether Smt. Nishi Sehgal, Assistant Manager (Law) is a competent authorized signatory of plaintiff corporation and also competent to sign the plaint and to engage counsel? OPP
2. Whether there exists no agreement/contract between the parties in terms of Clause 14 of General terms and conditions of public tender or for want of execution of agreement on prescribed form with adhesive stamp of Rs. 10/-?OPD 2(A). (If answer to issue no. 2 comes negative then issue no. 2(A) is to be proved) whether time was of the essence of contract in accordance with the schedule laid down and reflected in para 5 of the plaint? OPP.
3. Whether the defendant failed to make supplies on due date or on defedant's failure to make supplies to the plaintiff, the plaintiff had invited fresh public tender for supply of balance material of short supply by the defendant under the purchase order? OPP 4(A). Whether the performance of contract became frustrated or impossible to perform u/s 56 of Indian Contract Act, 1872 due to scarcity and unavailability of required paper in the market? OPD 4(B). Whether the defendant is not liable to pay compensation U/s 73 of Indian Contract Act because of frustration of contract U/s 56 of Indian Contract Act, 1872? OPD
5. Whether the plaintiff is entitled for decree of Rs. 10,57,370.62 (i.e Rs. 10,11,784.51 qua short supply of domestic gas consumer cards, Rs. 45,566.11 on short supply of covering letter pads)? OPP
6. Whether the plaintiff is enttiled for decree for interest @ 18% p.a. pendant lite and future interest or at any other rate or period? OPP
7. Relief.
24. Smt. Nishi Sehgal being PW1 and she tendered documents in her affidavit Ex. PW1/1, PW1/2 to PW1/7 to PW1/7 and PW/PX. Besides Mr. Pankaj Mathur, Chief Manager, also tendered documents Ex.PW2/1 to PW2/12 on his affidavit Ex.PW2/A. The documents which have been tendered are as under:-
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.8
PW2/1 - Copy of document titled purchase order dated 03.02.1989. PW2/2 - Copy of General Tender conditions dated 26.12.1988. PW1/10 - Copy of Application form submitted by tenderer dated 26.12.1988.
PW1/14 - Copy of letter dated 24.05.2000 from plaintiff to defendant. PW1/11, PW2/3 - Copy of correspondence exchanged between the parties. PW2/5 - Photocopy of Publication of tender notice.
PW2/6, PW2/7 and PW2/8 - Copy of Agreement between plaintiff and third parties.
PW2/9 - Copy of legal notice.
PW2/10 - Reply to legal notice on behalf of defendant.
PW/2/11, PW2/12 - Copy of correspondence exchanged.
Ex.DW1/P2 - Letter dated 20.02.1989 from defendant to the plaintiff. PW2/4 - Copy of letter dated 04.06.1990 from defendant to the plaintiff.
25. Plaintiff also relied upon documents filed by defendant which were exhibited during cross-examination of DW1 as DW1/P1, DW1/P2, DW1/P3, DW1/P4, DW1/P5, DW1/P6 and DW1/P7, all letters admitted to have been received by the defendant company.
26. On behalf of defendant Mr. Rajiv Bhatnagar was examined as DW1 on his affidavit as Ex.DW1/A. He relied on documents Ex.DW1/3, 8 and 9.
Documents relied upon as Ex.DW1/2 to 15 - de-exhibited - marked A to H. Document as Ex.DW1/1 - copy of Extract of resolution.
Heard Ld. counsels at length.
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
9ISSUE NO. 1:
27. As regards the authorisation of Smt. Nishi Sehgal, Ld. counsel has relied upon judgment of Hon'ble Supreme Court reported in AIR 1997 SC (3) wherein it has been held that the suit instituted by a public corporation like a bank, public interest should not be permitted to be defeated on mere technicality and that procedural defects which do not affect the root of the matter should not be permitted to defeat a just cause and further there is sufficient power with courts under CPC to ensure that injustice is not done to any party. It has further been submitted that court can, on the basis of evidence on record, after taking entire circumstances of the case into account, specially with regard to conduct of trial, come to the conclusion that the corporation has ratified the act of signing of the pleadings of its officers and the officer had come and stated that plaint has been signed and verified.
28. The plaint in this case was signed and verified by Ms. Nishi Sehgal, Assistant Manager. She appeared in the witness box as PW1 and tendered her affidavit as Ex.PW1/A and wherein she has stated that she is working as Assistant Manager with the plaintiff corporation and that she is fully conversant with the facts of the case and was holding a power of attorney duly executed in her favour. Mr. B. S. Chhikara in turn held a power of attorney in his favour executed by the secretary of the company Mr. D.B. Puri who in turn was also duly empowered by GPA revised in his favour by the Board of Directors. Further that the General Power of Attorney was put before the Board and was approved and copy of Resolution was Ex.PW1/1. The power of attorney executed in favour of Mr. D.B. Puri being Ex.PW1/2. She has stated in the affidavit about the entire chain of power of attorneys leading up to her own authorization/empowerment. This witness had relied upon the documents which had already been Ex.PW2/1, PW2/3, PW2/9 and PW2/12 and besides also the document Ex.PW1/1 onwards till PW1/2, Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
10PW1/4, PW1/7, PW1/10 to PW1/14. Even otherwise the statement of the said witness remained unrebutted in as much as the defendant failed to cross-examine the said witness. None appeared, opportunity was closed and was never even sought to be reopened at the instance of defendant. As such it can be safely concluded that the defendant opted not to cross-examine the PW1 and accepted her testimony on all aspects as it stood, including her competence. As such issue no.1 is decided in favour of the plaintiff and against the defendant.
ISSUES NO. 2 & 2A:
29. During arguments addressed at length spread over several dates, it has been the contention on behalf of the plaintiff through out that in pursuance to the tender invited, defendant was placed with a purchase order no. 288 dated 03.02.1989 with request to supply the material as mentioned therein, which purchase order also contained the delivery schedule, and that the purchase order was to be read in conjunction with general terms and conditions which amounted to a contract.
30. On the other hand, the stand taken on behalf of defendant was that though the tender had been floated, in terms of the said tender, further agreement was required to be executed.
31. It was countered on behalf of the plaintiff that the very fact that in compliance of the purchase order, the defendant had already made part supply and for which he had even received payment, there was a valid agreement as is evident from conduct of the defendant.
32. As regards the non filing of the original documents by the plaintiff, the argument addressed on behalf of the plaintiff is that facts admitted in the pleadings need no proof. According to Ld. counsel for plaintiff the documents filed by the defendant had been specifically put to him and since they have been filed by defendant himself, the Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
11plaintiff gets the right to rely on them and from the entire documents it has been proved that purchase order had been placed and part supply had been made.
33. It is further the contention that the parties are bound by the terms and conditions of the agreement and therefore the defendant cannot be allowed now to turn around and state that there is no concluded contract between the parties and further that the original of the purchase order was in the custody of the defendant and even otherwise, since, the purchase order has been accepted, and been acted upon there is no need to prove the said purchase order.
34. Further Ld. counsel for plaintiff has also emphasized on the clause in the purchase order as per which the rates shall remain firm till completion of the purchase order and further that this purchase order should be read inconjunction with the general terms and conditions of the tender.
35. It was further argued on behalf of the plaintiff that plaintiff being public sector undertaking has to follow the laid down procedure for which approvals are required and though such procedures take time but still that would not mean that defendant would be entitled to escalation of rates, as rates agreed between plaintiff and defendant were to remain firm till completion of the purchase order.
36. As regards objection of defendant that there was no formal agreement ever in existence, it is the contention of ld. counsel for plaintiff that mere non execution of a formal agreement would not imply that there was no concluded contract.
37. The main contentions on behalf of the defendant in brief were that firstly the suit as filed was without the original documents and as such was not maintainable. He relied upon section 64 of Indian Evidence Act in this regard and also relied upon the judgment of Hon'ble Supreme Court in AIR 2007 17 titled Smt. J. Yasoda Vs. Smt. K. Sobarani as per which it was held that photostat copies which were not compared with Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
12originals cannot be accepted as evidence and that photostat copies are not acceptable under any provision of law.
38. Further it was also contended on behalf of the defendant that the alleged terms of the contract had not been proved by producing the original document by the plaintiff. The clause in the alleged purchase order has remained unproved. Ld. counsel for defendant has stated in so many words that the alleged purchase order is a fake copy taken by cutting and pasting by the plaintiff.
39. It is the consistent stand on behalf of the defendant that an agreement had to be executed between plaintiff and defendant in a prescribed format on a prescribed stamp paper and no such agreement in accordance with law had been executed. As such there was no concluded and enforcible contract executed between the parties.
40. It was also much disputed between the parties as to whether the alleged tender page and the general terms and conditions had any continuity between them or not. It has been contended by Ld. counsel for defendant that the alleged tender page had no continuity in as much as the second page of the alleged purchase order did not even contain the name of the defendant and the alleged purchase order (Photocopy) was not even signed by the defendant. It has been further contended that the alleged tender and purchase order are cut and paste photocopy prepared to suit the interest of the plaintiff.
41. Defendant has strongly disputed the terms of the alleged purchase order contending that defendant has never agreed to such terms and even otherwise the alleged purchase order and alleged tender are unilateral documents dominated by the plaintiff having adverse consequences against the defendant and as such reliance has been placed on provision of Section 16 of Indian Contract Act.
42. It was also argued on behalf of the defendant that the contract has been frustrated by the action of the plaintiff who according to defendant had taken so much Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
13time to clear the proof reading and also to decide on the quality of the paper they required for printing. Ld. counsel for defendant has relied upon the correspondence exchanged between the parties.
43. Further contended on behalf of the defendant that price was not quoted to defendant since no concluded agreement had been executed between the parties and as such the price had been unilaterally fixed by the plaintiff.
44. Further Ld. counsel for defendant has distinguished the present case from the case in question in the judgment of Hon'ble Supreme Court relied upon by the plaintiff in as much as the said matter related to a bank wherein all loan documents had already been proved, whereas in the present case not even a single document has been proved as per the Indian Evidence Act.
45. Ld. counsel for defendant has also referred to the deduction of Rs. 14,868.68/- from the payment for material supplied on account of delay as being arbitrary in as much as there was no forfeiture clause proved on record.
46. It has also been argued on behalf of the defendant that the case has been filed in order to protect some officers of the Corporation who had deliberately caused the delay to serve their own interest, as best known to them. It is also submitted that while the defendant is a small scale industry looking to the government for its survival and protection, defendant met huge losses because of the inaction of the plaintiff 's officials.
47. Although the defendant has taken the stand that there was no formal concluded contract, at the same time his own conduct reflects otherwise as he has admittedly supplied part of the goods to the plaintiff pursuant to the very purchase order, which he is bent upon denying, in court. Certain portion of the testimony of DW-1 are very relevant and which highlight his admission on this aspect. The same are being reproduced for an easy reference.
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
14"It is correct that plaintiff corporation invited tenders for supply of the material. I have submitted the offer and there is no difference between the tender and offer. It is correct that before submitting the offer, I/concerned staff gone through the terms and conditions of the tender. Q. Is it correct that Indian Oil corporation had accepted your tender? A. Yes, IOC had accepted our offer.
Q. In pursuance of that purchase order was placed with you? A. The alleged purchase order was not received by us. Again said, it was not accepted by us.
Q. Is it a fact that in pursuance of the purchase order placed by the plaintiff, you have supplied part of the goods to Indian Oil Corporation.
A. No. Q. Did your company supply the goods to the plaintiff? A. Small quantity was supplied.
Q. Did your company raise the bill on Indian Oil Corporation? A. Yes.
Q. Can you produce that bill?
A. I have not brought.
Q. Can you tell this Hon'ble Court as to what quantity of goods you have supplied to IOC and which quantity you had not supplied to IOC? A. I don't remember the quantity but I have supplied what I was requested verbally.
Q. Did you mention this fact in the written statement filed before this Court that you have made the supply on the oral request? A. I don't remember.
Q. You have stated that even if, the purchase order no. 288 dt. 3.2.1989 amounted to a contract between the parties, time was of the essence of the performance of the contract, in accordance with the schedule laid down therein and that letter dt. 29.03.1989 the time was the essence of the contract. I put to you that you have supplied the goods on the basis of the purchase order no. 288 dt. 3.2.1989?
A. Defendant company has not supplied.
Q. Kindly see Ex. DW-1/P2 dt. 20.2.1989 in which you have acknowledged that order no. 288 dt. 3.2.1989 has been received by you from the plaintiff for printing domestic gas consumer cards and you have stated that it is not possible for you to give serial numbering by Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.15
auto numbering?
A. Purchase order no. was mentioned for sake of reference as advised by IOC Officials.
Q. You are further asked by IOC to supply the goods against order no. 288 dt. 3.2.1989 in time and a reminder to this effect is given by this letter?
A. The purchase order no. was mentioned for the sake of reference as stated above sicne we cannot accept the purchase order nor the agreement was executed.
Q. I put to you that the purchase order was placed on your company and you have accepted the same and sought for extension of time? A. The purchase orde was not accepted by us as it had certain technical flaws such as auto printing etc. besides which, the excise etc. had increased on the raw material and we had made our representation. The extension was sought.
Q. For what purposes, you sought the extension for making the supplying to IOC?
A. For seeking approvals for manual numbering instead of auto numbering for printing the cover by offset, approval for proofs. etc. Q. Before submitting the tender, your company was requied to go through the tender condition, general terms and conditions and format of the agreement?
A. Yes.
Q. I put to you that your company was the successful party in the said tender?
A. Yes.
Q. I further put to you that the purchase order dt. 3.2.1989 was placed by IOC with your company in pursuance of the said tender? A. Not accepted by us.
Q. Kindly see letter dt. 19.5.1989, Ex. DW-1/P6, in which you have accepted the receipt of the purchase order and requested for extension in delivery schedule of the purchase order?
A. We have written the letter and mentioned the purchase order for the sake of reference as advised by IOC.
Q. I put to you tht you have raised bill no. 1449 dt. 10.7.1989 on IOC and a sum of Rs. 3067 was deducted as penalty for late supply? A. Yes a bill was raised.
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.16
Q. You are required to supply 25 lakhs of consumer cards to IOC? A. It is a matter of record.
Q. Against this you have only supplied only 2.5 lakhs consumer cards to IOC?
A. Yes. (Vol. said it was agreed by IOC for enchancing our rates and for approving).
Q. Do you have any document from IOC to show that they have agreed to amend the technical specification or any terms for serial number etc. to change?
A. I do not remember off hand but they have approved the changes subsequently, which is exhibited in the Court file, Ex. DW-1/P3. Q. Is it a fact tat first installment was to be delivered by you on 15.3.1989, second installment was to be delivered on 15.4.1989, and third installment was to be delivered on 15.5.1989 and fourth installment was to be delivered on 15.6.1989 and fifth installment was to be delivered on 15.7.1989?
A. Yes. (Vol. said since the approvals were not received by us from IOC for the technical flaw of the printing specification the same were not delivered).
Q. Do you have any document to show that IOC was required to approve further technical matters?
A. Yes, tender documents and verbal telephonic instructions for getting approvals which were also written with their approvals in writing. Q. Is it a fact that thereafter your company did not make any further delivery as required under purchase order?
A. There was no purchase order and hence no further supply was made.
Q. I put to you that you have received the purchase order and you have partly supplied the goods?
A. Purchase order no. was not accepted and yes some material was supplied.
It is further correct that we did not make second delivery to the plaintiff but it was for the reason that the plaintiff did not agree to the revised rates. The plaintiff never agreed to the revision of rates. There was no purchase order placed by the plaintiff upon the defendant company and hece the question of its breach does not arise. We did not accept the purchase order Ex. PW2/1.
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.17
48. From the above, there remains no doubt at all that the defendant has through and through tried to take shifting stands. First, there being no formal contract and secondly at the same time admitting that he had made part delivery. In case the purchase order was not accepted by the defendant, there would have been no question of his having supplied even a part of the goods which he has admittedly done.
49. The totality of the circumstances evident on record from testimony of DW-1 have very clearly established that though there was no formal agreement executed between parties, the purchase order itself contained the terms and had the same not been duly accepted by the defendant as alleged by him, defendant would not have started performing his part of the agreement and all the defendant had wanted was modification of the terms of the agreement i.e. on the point of price/rates for the remaining delivery.
50. As regards the contention of Ld. counsel for defendant, which he emphasized quite strongly that document Ex. PW-2/2, which was a photocopy, did not include any terms and conditions and the pages alleged to be a part of the said Exihibit were actually totally unconnected, and that there was no continuity; it is seen that the document Ex. PW-2/1 is titled purchase order dated 03.02.1989 and the said 'purchase order' is shown to be addressed to the defendant and its first page is also bearing the signature of the AR of the defendant. While the first page text is about the material to be supplied, the first page is shown to be continuing as words "Contd.....2 appear at the bottom part of the page and similarly page no. 2 pertains to some more material and shows the description of the material. There is a clause '2' which is as under:-
"For delay in supplies as per delivery schedule decided/specified in purchase order the party will be liable for liquidated damages on the unexecuted quantity/portion as under i.e. at the rate of ½ % (Half percent per week) upto maximum of 10 % and for this purpose, fraction of week will be taken as full week. Due to delay in supplies IOC at any time after the due date of Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.18
delivery will also have right to purchase the material/items at risk and cost of the party and recover the extra expenses from party in addition to liquidated damages. This will be without prejudice to IOC's right of taking any other action against the party as deemed fit.
Party should deposit security of 5% of the purchase order value maximum of Rs. 10,000/- (in cash or D. D. will be accpeted only).
4. The rate shall remain firm till the completion of purchase order.
5. This purchase order should be read in conjunction with terms and conditions of our Tender and agreement which will also apply.
Sd/-
D. K. Malik 3.2.1989"
51. The second page again leaves not even an iota of doubt that the said terms were very well in continuity and part of Ex. PW-2/1. The words "continued....3" at the bottom of the page 2 and also bearing signature of the AR of the defendant company, also make it clear that the third page itself is containing the specific time schedule for the delivery also, was very well a part of the entire document. Infact, the document is not even readable at all if its 3 pages are not read together and the document cannot be at all treated as being a complete document in the context. The plea taken by Ld. counsel for defendant that these documents are not part of the purchase order is absolutely unbeleivable and only a failing and last effort of defendant to avoid liability by any means.
52. It is also contended on behalf of the defendant that document titled as "general terms and conditions" was not a part and was not in continuity of the document Ex. PW-2/2. This again is not tenable at all in the entire context. Having referred to Ex. PW-2/1 wherein at page no. 2 itself it is very clearly stated at serial no. 5 that the purchase order should be read in continuation with terms and conditions of tender and the agreement leave no doubt that both, the general tender conditions and the general Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
19terms and conditions were forming part of one and the same document i.e. Ex. PW-2/2.
53. Clause 4 on the first page of Ex. PW-2/2 clearly states that contractor should read carefully and understand the tender/contract conditions and then quote their rates. The DW-1 on the oral testimony has also clearly admitted that the said terms and conditions had been read and understood. Now it does not lie in the mouth of the defendant to deny those very terms and conditions and that too on such frivolous contentions like that the general terms and conditions did not form part of and were not in continuity with Ex. PW-2/2.
54. Even otherwise, assuming for a moment that the second page, terms and conditions were not part of general terms and conditions, even so the purchase order in itself is complete document laying down the entire specifications of the goods to be delivered, the time schedule on which they are to be delivered and the consequences of non delivery on time as per the time schedule. In fact, the most material point involved in the contract has already been included in the purchase order, it has been duly accepted by the defendant going by his own conduct of delivering part of the goods (that too delayed).
55. Coming back to the general terms and conditions part of Ex. PW-2/2, clause 3 thereof which provides that the price would be fixed and valid until satisfactory completion of the order. It is further even more specifically laid down therein that the price should be firm and irrevisable and not subject to any change whatsoever even due to increase in cost of raw materials, compounding and labour cost till the completion of the scheduled delivery period of finished materials.
56. The language of the terms and conditions dated 26.12.1988 of course do show that the execution of a formal agreement was also contemplated as per clause 14 thereof but be that as it may, even though indeed there is no such formal agreement on Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
20record, still the purchase order in itself wold show that the intention to make a formal agreement had been waived off by the parties and simply the purchase order was placed containing all the necessary terms and pursuant to which the defendant acted and supplied part of the goods.
57. Section 10 of the Indian Contract Act, 1872 defines contracts as saying that all agreements are contracts if they are made by the consent of parties competent to contract, for a lawful consideration with a lawful object and are not thereby expressly declared to be void.
58. As regards acceptance, it is very clear that the tender was an invitation to offer and pursuant to which and after reading the conditions thereof, the defendant admittedly put in a bid. His bid was accepted pursuant to which a purchase order was placed.
59. About 'acceptance', the Interpretation Clause of the said Act provides that when one person signifies to another, his willingness to do or to opt from doing anything, with a view to obtain consent of that person, further to such act or abstenance, he is said to make a proposal and when the person to whom the proposal is made signifies his consent thereby, the proposal is said to be accepted.
60. The explanation to Section 10 that nothing herein contained shall affect any law in force in India and not hereby expressly repealed by which any contract is required to be made in writing or in the presence of witnesses or any law relating to the registration of documents, it is very clearly implied that apart from those exceptions, it is not required by the Act for a contract to be in writing.
61. Even oral contracts are there. In order to constitute a contract, all that is necessary is that both the parties must consent to the agreement- so held in Steel Authority of India Limited Vs. Salem Stainless Steel Suppliers, AIR 1994 SC 1415.
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
2162. Consent has also been defined in Section 13 as being when two or more person are said to consent when they agree upon the same thing, in the same sense. What is implied from here is that there is a meeting of mind, an intention to work upon the agreement and that is all. There is no whisper about any consent in writing or other wise. In the present case the very conduct of the defendant establishes it clearly that defendant was very well a party to the agreement, he had consented to supply the good and accordingly he started supplying the goods.
63. It was also one of the arguments addressed on behalf of defendant though as an after thought and quite half heartedly that the contract is also void in view of the Section 16 of Indian Contract Act in the sense that the plaintiff being the public sector undertaking was in a dominating position while the defendant is only a private company.
64. Section 16 of the Indian Contract Act defines 'undue influence' and it is stated that a contract was affected by undue influence when the relations subsisting between the parties are such that one of the parties is only in a position to dominate the will of the other and uses that position to obtain consent. It is further elaborated that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other or where he stands in fiduciary relation to the other or where he makes a contract with a person whose mental capacity is temporarily or permanently affected due the several reasons and where a person who is in a position to dominate the will of another, enters into a contract with him and the transaction appears on the face of it or on the evidence adduced to be uneven the burden of proving that such contract was not adduced by undue influence shall be on the person in a position to dominate the will of the other.
65. By any stretch of imagination, it has not been explained at all as to how the defendant would fit into any one of the categories who could be stated to be dominated Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
22or influenced by the plaintiff. The plaintiff who is itself a full-fledged private company, how it can be considered to be under influence of a public sector company has been left absolutely unexplained.
66. Some of the relevant portions of the correspondence between the parties would clearly highlight the fact that the defendant was fully in agreement and all that he was wanting was modification of the terms of agreement.
67. Ex. DW-1/P2 is a letter wherein defendant has clearly acknowledged the order no. 288 dated 3.89. (Year in question) for providing of domestic consumer cards and also they have expressed in this letter that technically it is not possible to have serial number, auto numbered as the defendant would take the job on an off set machine. The defendant has further however assured the plaintiff that they would do auto numbering of the covers of the cards and initial page number would be done manually. In this letter the defendant also sought confirmation from the plaintiff to inform them to proceed towards the execution of the order.
68. The letter dated 01.03.1989 was given by the plaintiff in response to this letter confirming that defendant may do manual numbering but the cover should be auto numbered and also stating that all cards should be given same number as printed on the cover as well as first page of the booklet. By all this there is hardly any doubt left that there was a concluded contract between the parties. As such both issues are decided in favour of plaintiff.
ISSUES NO. 3, 5 & 6:
69. With regard to loss alleged to have been caused to plaintiff on account of non supply by the defendant on time, plaintiff has claimed to have suffered a loss of Rs. 10,57, 370.62/-. On this aspect Ld. counsel has relied on the fact that the first witness Smt. Nishi Sehgal's testimony has gone unrebuttedand.
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
2370. As regards the loss alleged to have been suffered by the plaintiff, as per the Ld. counsel the loss stands proved beyond doubt as plaintiff had invited fresh tender for supplying the material, short supplied by the defendant, which fact was proved through the statement of Smt. Nishi Sehgal which went unrebutted. As such a breach of the loss having been established, Ld. counsel for plaintiff has pressed for damages in favour of the plaintiff.
71. As regards the alleged damages suffered by the plaintiff also the contention is similar that the damages/loss has not been proved by way of any original documents and the alleged alternate procurement of material remains unproved in as much as even original bills have not been produced and as such plaintiff had failed to prove liquidated damages.
72. Ld. counsel for defendant also highlighted the aspect that the alleged last delivery date was 30.07.1989 and the alleged alternative arrangement of the allowed fresh tender was 09.10.1991 plaintiff ought to have been taken steps within a reasonable time.
73. It was also submitted that it was plaintiff who themselves changed the alleged time schedule of delivery by their letter dated 29.03.1989 referred to as Mark 'A' and that the time schedule mentioned in the alleged purchase order was extended from time to time by negotiation between the parties.
74. During the course of argument Ld. counsel also took the stand that plaintiff had orally assured the defendant that they would consider about the rates but they failed to adhere to their assurance.
75. As regards Clause 12 of the general terms and conditions, same is risk purchase clause, which provides that IOC reserves the right to rescind or cancell the order either in full or in part thereof; if the vender fails to comply with the delivery Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
24schedule, specifications and other terms and conditions of the purchase order/contract. In that eventually, damages will be recovered from the defendant and the plaintiff would reserve the right to purchase the goods from other sources totally at the venders risk, responsibility and cost.
76. The agreement having been very well established; the breach thereof, has also been established on record; as it was not the case of defendant even at any point of time ever, in pleadings or in evidence that he had supplied the entire goods and on time. His only defence has been that he sought modification of the terms of the agreement and since the plaintiff did not accept the said modification in the terms, he decided not to supply the goods any more. The breach of the contract is writ large on the part of the defendant from the entire conduct as above referred.
77. The contract having been established, its breach also having been established, the only question that needs to be addressed is of the damages to which the plaintiff should be held entitled.
78. Chapter 6 of the Indian Contract Act deals with the consequences of breach of contract. Section 73 provides that in case of breach, the party who suffers is entitled to receive from the party who committed the breach, compensation for any loss or damage caused to him thereby which naturally arise in the usual course of things from such breach or which the party knew when they made a contract, to be likely to result from the breach thereof and further it clarifies that such compensation is not to be given for any remote or any indirect loss or damage sustained by reason of the breach. The illustrations (a) and (f) of Sec. 72 and 73 are provides as under:-
(a) A contracts to sell and deliver 50 maunds of saltpetre to B, at a certain price to be paid on delivery. A breaks his promise. B is entitled to receive from A, by way of compensation, the sum, if any, by which the contract Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.25
price falls short of the price for which B might have obtained 50 maunds of saltpetre of like quality at the time when the saltpetre ought to have been delivered.
(f) A contracts to repair B's house in a certain manner, and receives payment in advance. A repairs the house, but not according to contract. B is entitled to recover from A the cost of making the repairs conform to the contract.
79. However, it is quite clear that the actual loss must be established by the party to claim damages.
80. Where a corporation had placed the order on telephone, the entire transaction was oral and no attempt was made to produce any witness of the alleged buyer to support the contention that the market value of the goods was at the rate of Rs. 3,000/- per metric ton. The material on record does not show that the price of goods had risen to Rs.3,000/-. Therefore, the damages as a result of non-delivery of the alleged goods, having not been proved by the plaintiff, he was not held entitled to any damages; Thakral and Sons v. Indian Petro Chemicals Corporation Ltd., AIR 1994 Del 226.
81. Section 74 of the Act, however, provides compensation for breach of contract where the penalty is already stipulated and provides as under:-
When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.26
case may be, the penalty stipulated for.
Illustration (d) thereto is provides as under:-
(d) A gives B a bond for the repayment of Rs.1,000/- with interest at 12 per cent at the end of six months, with a stipulation that, in case of default, interest shall be payable at the rate of 75 per cent from the date of default.
This is stipulation by way of penalty and B is only entitled to recover from A such compensation as the court considers reasonable.
82. It was so held in Chunilal Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd. AIR 1962 SC 1314, where the right to recover liquidated damages under Section 74 is founds to exist no question of ascertaining damages really arises.
A clause in a contract can be described as penal if the party who has to pay a certain amount of money fails to pay the amount within the time stipulated. In such a situation the other party will be at liberty to recover the entire sum with interest and costs. Such a clause would be penal in character. But if half payment is made within the time stipulated, the other party waves hi right to the balance amount; Prithvichand Ramchand Sablok v. S.Y. Shinde, AIR 1993 SC 1934.
Section 75 of the Contract Act again provides as under:-
A person who rightfully rescinds a contract is entitled to compensation for any damage which he has sustained through the non-fulfilment of the contract. A, a singer, contracts with B, the manager of a theatre, to sing at his theatre for two nights in every week during the next two months, and B Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.27
engages to pay her 100 rupees for each night's performance. On the sixth night, A willfully absents herself from the theatre, and B, in consequence, rescinds the contracts. B is entitled to claim compensation for the damage which he has sustained through the non-fulfillment of the contract.
83. In the present case the plaintiff has clearly not led any evidence regarding the actual loss alleged to have been sustained by the plaintiff on account of non-supply of goods on time by the defendant. They have only brought on record certain photocopies of certain tender notices, they have alleged to have taken out in the Newspapers to begin a whole new process and also claimed that they purchased the same goods/quantities from other sellers, third party at much higher prices. Neither the original bills of the goods alleged to have been obtained/procured on higher prices have seen light of day and far from that even the original advertisements, tender notices, agreements or purchase orders placed upon the third party have been produced. Since the damages pecuniary/special are all about the loss sustained, the burden was of the plaintiff to establish their loss.
84. However, going by Section 74 of the Contract Act above referred, it is clear that the case of the plaintiff would be covered by the penalty clause contained in the purchase order as well as in the general terms and conditions above referred.
85. In this respect it was also the argument on behalf of defendant that plaintiff could hardly be held to have sustained any kind of loss as they themselves delayed the process of taking out fresh tenders, that is only assuming that the fresh tenders were taken out. Ld. counsel for plaintiff countered this and attributed the delay to the defendant who kept the plaintiff company engaged in lengthy correspondence and last of such letter in the chain of correspondence being dated in February, 1991 itself and as Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.28
such there cannot be said to be any undue delay between the period when the correspondence ended between the parties and the taking out of the fresh tenders.
86. Since the plaintiffs have failed to lead any evidence in accordance with the Evidence Act and have only filed photocopies of certain tenders alleged to have been taken out, they can be held entitled to damages only in accordance with the Section 74 of the Contract Act i.e. the penalty clause already included in the contract.
87. Ex.PW2/1, the purchase order on page 2, clause 2 has very clearly provided for the consequences of delay in supply and it has been specifically stated therein that for delay in supply as per the delivery schedule decided/specified in the purchase order, the party will be liable for liquidated damages for the unexecuted quantity/portion as under ½ % per week up to maximum of 10% and for this purpose fraction of a week will be taken as full week in addition IOC, will also have right to procure the material at the risk and costs of the party and recover the extra expenses from the party in addition to the liquidated damages and that this will be without prejudice to the right of IOC to take any other action against the party.
88. The letter dated 03.02.1989 Ex. PW-1/11 is one where the defendant has expressed extreme gratitude to the plaintiff for having placed an order upon the defendant for domestic consumer cards and covering letter pads and further this letter expresses regret that despite best efforts of the defendant to procure the raw material, they have not been able to get the paper on the rates that they had quoted in their tender and thereafter, they have gone on to elaborate about the hike in rates of raw materal in the market.
89. On the other hand Ex. PW-1/3 dated 06.02. 1991 is a letter where the plaintiff has clearly expressed and reminded the defendant that they have failed to make the delivery which was to be supplied by 17.9.1989 and inspite of various reminders, the Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
29defendant has failed to perform their part of the agreement. Plaintiff has also stated herein that due to non supply of the material, the work has been suffering and plaintiff are left with no choice but to place the order on an alternative source to procure the material.
90. It was argued on behalf of the defendant that it is plaintiff who consumed much time in giving approvals but this contention on behalf of the defendant was also found absolutely misplaced in view of the voluminous correspondence, through and through showing very clearly that plaintiff had done all that was necessary to give their approval.
91. It was also stated in letter dated 1.3.1989 Ex. DW-1/P3 that while on the subject they had also noted that proof submitted by the defendant had been handed over back to the defendant on 2.3.1989 and that they (the defendants) agreed to submit the final proof of the booklet for approval. Also a reminder was issued that the first delivery was to be made by the defendant by March 15, 1989 and for which the final proof should be submitted immediately.
92. The chain of correspondence (filed by the defendant himself and as such relied upon by defendant himself) establishes the entire case of plaintiff about breach of contract by delay in deliveries- Facts admitted need no further proof.
93. It is also seen that the first extension was sought for the first delivery scheduled vide a letter issued by defendant on 23.31989 i.e. after the date for delivery had already passed. The defendent did not even bother to seek extension prior to the date approaching. Extension was sought till 25th April, 1989 for the first delivery and also by one month w.e.f. 25.4.1989 for the subsequent deliveries. Defendant also assured, the plaintiff that they would not request for any further extension as is clear from Ex. DW-1/P4.
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
3094. By Ex. DW-1/P5 dated 3.3.1989 plaintiff again reminded the defendant that they should appreciate that time was the essence of the contract and that it was necessary for them to arrange paper from the mills in time. However, the plaintiff agreed to extend the delivery schedule for the first delivery to 30th April, 1989 and also the subsequent deliveries extended by one month each respectively. It is also seen that defendant had sought extension of the first delivery till 25th April, whereas the plaintiff agreed to extend the time for the first delivery till 30th April, that even 5 days more than time sought.
95. As per, Ex. D-1/1 dated 19.04.1989, defendant has told the plaintiff that the proof of the consumer cards, booklets were still lying in their office for over 15 days and they have further stated in this letter that time taken for checking the proof should be deducted from the delivery schedule. After this letter there is Ex. DW1/P6 dated 19.05.1989 also issued by the defendant to the plaintiff putting the blame upon the plaintiff and referring to the previous letter. By this letter more extension of time has been sought for the first delivery as well as for the subsequent deliveries.
96. The letter Ex. DW-1/11 is protest by the defendant to the plaintiff against deduction from their bill on account of late delivery. Although letter dated 6.2.1990 had not been admitted during examination in chief, Ld. counsel for plaintiff himself wanted to rely on this letter, copy of which had been filed by the defendant and as such at the stage of argument the contents of this letter were considered. This letter again specifies about increase in the price of the raw material as being reason for delay and this letter was again produced by the defendant against the deduction of Rs. 10,000/- from the bill.
97. Ex. DW-1/P7 is a letter from plaintiff dated 16.2.1990 where the plaintiff have simply told the defendant to deliver the balance material immediately and confirm the same failing which they shall be constrained to take necessary action. This letter has Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
31also referred to the delay already in the first delivery. It has been stated that though one part has been delivered but defendant has failed to complete the order as per the delivery schedule.
98. Going by the penalty clause already provided at clause no.2 in the purchase order as Ex.PW2/1 on page 2 thereof as per which, delay in supply as per the delivery schedule decided/specified in purchase order, the party will be liable for liquidated damages on executed quantity/portion is @ ½ % per week up to maximum of 10%. For this purpose fraction of the week will be treated as a full week. The further part of the clause deals with the extra expenses that the plaintiff may have to incur for purchasing the material from some other third party which is stated to be in addition to the penalty clause already stipulated. However, since plaintiff has failed to prove the expenses incurred in purchase from third party as they had not led any evidence relating to the said purchase alleged to have been made, had the plaintiff can be awarded damages only as per the penalty clause stipulated i.e. @ ½ % per week. The delivery schedule in question was as under:-
99. First installment of Rs.15,389/-
100. Second installment of Rs.15,489/- and going on up till 5th installment to be dated 15.07.1989, total value of the material to be supplied was Rs.21,25,000/- for the domestic gas consumer cards and Rs.2,21,000/- for covering letter pads. Total quantity supplied was 5,00,000 for domestic gas consumer cards and 5,000/- covering letter pads. They were delivered in installments i.e. 5,00,000/- gas consumer cards and 5,000/- covering letter pads in each installment of every month. Even as late as in June 1990, the defendant had not delivered the material as per schedule and had delivered only the following material on the said purchase order i.e. Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
32Domestic Covering Letter Consumer Cards pads (Date of Delivery) Amount No. (Date of Delivery) Amount No. 07.12.1989 95,875 20.12.1989 5,251 20.12.1989 76,500 10.07.1989 4,956 16.10.1989 83,725 01.03.1990 1,89,500 01.06.1990 43,000 Total 4,88,100 Total 10,207
101. Thus, a total of 4,88,100 domestic gas consumer cards had been delivered (which were also the late delivery) and a total of 10,207 covering letter pads were only delivered and as such the material was short supplied. However, since the plaintiff has not worked out the amount on the basis of their penalty clause, this court is of the view that only general damages to the tune of Rs.10,00,000/- alongwith interest @ 9% can be awarded in the circumstances. Issues No.3, 5 and 6 are accordingly decided in favour of plaintiff.
ISSUES NO. 4A & 4B:
102. Ld. counsel for defendant has also relied upon Section 56 of Indian Contract Act to contend that the contract was rendered impossible to be performed on account of delay by plaintiff and as such was rendered void. Plaintiff spent so much time in proof reading and in setting aside the odd numbering of the quality of the paper, and besides non availability/scarcity of the paper required; in the market; all together made impossible for the defendant to perform his part of the contract.
103. However, the entire chain of correspondence above referred clearly establishes otherwise i.e. that delay was solely part of the defendant itself. Said issues Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.
33are decided against the defendant and in favour of the plaintiff. RELIEF:
In view of the above discussion and the findings, plaintiff company/corporation is held entitled to a decree for a sum of Rs.10,00,000/- alongwith a interest @ 9% per annum from the date of filing the suit i.e. 24.04.1992 till 01.01.2000 and thereafter @ 12% till realization.
Decree sheet be prepared.
File be consigned to record room.
Announced in open Court
today i.e. 21.12.2011 (SUJATA KOHLI)
ADJ/WEST/DELHI
Indian Oil Corporation Vs. M/s. Mastana Jogi International Pvt. Ltd.