Delhi High Court
Eastern Telecom & Technology Ltd. vs B.C.C. Fuba India Ltd. on 16 July, 1997
Equivalent citations: 70(1997)DLT592
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
(1) This is a revision petition filed by the petitioner against the order dated 31.5.1995,bywhichthe learned Additional District Judge found the application of the petitioner under Order xxxvii, Rule 3, Cpc, for leave to contest without any merit and not raising any triable issue. The application was dismissed. However, the learned Additional District Judge decreed the suit against the petitioner only for a sum of Rs. 1.01,640.00 without any order as to cost and interest.
(2) The facts giving rise to the impugned order are that the petitioner had placed orders on the respondent for manufacture and supply of Mother Boards, Equalizer Boards and Led Board with components, vide purchase order Nos. 229 dated 17.7.1992,230dated 17.7.1992and231 dated 18.7.1992. The goods were required by the petitioner for being exported to its foreign buyers. It is the case of the petitioner that the respondent was to first submit the samples to the petitioner by 10.8.1992. The said samples were required to be approved by the foreign buyer. It is the petitioner's case that the respondent had delayed the supply of the samples.
(3) The petitioner claims that the foreign buyer had rejected the samples as the goods were not as per the required quality and specifications. There was no obligation on the part of the petitioner to accept the same or pay for the same. The petitioner submits that the supply was subject to the approval of the samples as it is evident from the stipulation in the invoice itself.
(4) The petitioner had given a cheque bearing No. 045381 dated 30.9.1993 for Rs. l,01,640.00 , drawn on the Standard Bank in part payment. Mr. Rajiv Nayyar, Senior Advocate appearing on behalf of the petitioner, submits that the cheque was issued as a gesture of goodwill since it was agreed and understood between the parties that fresh samples would be submitted for approval. The respondent, in these circumstances, was not required to present the said cheque for payment. Learned Counsel submits that there was no concluded contract which came into existence in the absence of approval of samples as the samples were rejected. The respondent failed to give fresh samples as had been agreed and accordingly the cheque given to the respondent was liable to be returned. Learned Counsel submits that the petitioner with a view to accommodate the respondent had gone to the extent of agreeing to give 5 cheques by splitting the amount on the understanding that fresh samples would be submitted.
(5) Learned Counsel submits that the trial Judge failed to notice triable issues, which required examination and trial as the goods were to be manufactured only after approval of the samples. Revision petition is accompanied with an application under Order Xli, Rule 7, Civil Procedure Code for being permitted to place on record the test reports dated 8.12.1992, rejecting the samples. It is stated that due to oversight, the petitioner remained under the impression that the said test reports alongwith the application for leave to contest had been filed, but in fact the same were not filed in the Trial Court.
(6) On a perusal of the application for leave to contest, I find that although the factum of rejection of the samples is mentioned in the application for leave to contest but there is no mention of any rejection reports in this regard. Learned Counsel for the petitioner fairly states that there is no correspondence filed on record, which would show that the test reports now sought to be produced on record were ever communicated to the respondent. No case is made out for additional evidence being adduced by permitting the test reports to be taken on record at this stage. However, even if, the same were considered for purposes of argument, in my view, it would not make any material difference.
(7) It is not necessary to dilate at length on the submissions made by the Counsel for the petitioner in view of the following facts. The petitioner itself filed a letter dated 1.12.1992, to the respondent stated as under: "PLEASE refer to our Purchase Order Nos. 229,230 and 232 wherein supplies were to be made after approval of samples. Kindly note our principals have informed us that samples are acceptable. However, their detailed test report is awaited. Further, we are awaiting our Advance Licence for the Pcb which has been applied for since April 20th and is still not available. We shall do the needful in your favour as soon as we receive the licence."
It would be seen that in this letter, there is a specific intimation to the respondent that the principals of the petitioner have found the samples as acceptable. However, their detailed test report is awaited. Subsequent to that, the respondent has placed on record number of letters written to the petitioner wherein they were repeatedly reminded of the samples and the goods having been manufactured and being ready for delivery. These are letters dated 10.2.1993,10.3.1993,29.3.1993 and 25.5.1993. There does not appear to have been any response to the same. The petitioner, it appears in view of the persistent follow up by the respondent agreed and issued a post-dated cheque No. 045381 dated 30.9.1993 for Rs. l,01,640.00 in part payment of the purchase orders. This cheque was acknowledged by the respondent on27.9.1993. The petitioner, thereafter, had requested the respondent not to present the said cheque. The respondent deferred the depositing of the cheque for some time but finally deposited the same in the first week of December, 1993, intimating to the petitioner that they would be depositing the same. The petitioner of receiving the said letter, even at this stage, did not mention the rejection of samples as is now sought to be contended instead requested that amount of the cheque be split to smaller amounts to facilitate early clearance. The respondent accepted the suggestion of cheques of smaller amounts being exchanged with the cheque already issued. In the event, this did not happen and the petitioner presented the cheque.
(8) A striking feature which emerges from the entire correspondence that the petitioner did not at any stage inform the respondent in writing about the alleged rejection of the samples, or dispute the factum of respondent having successfully furnished the samples and the supplies being ready. Not only this, the petitioner issued on its own volition cheque No. 045381 dated 30.9.1993 for Rs. l,01,640.00 . The petitioner did not deny its liability for payment of the said amount but only requested that the amount be split in the smaller denominations The defense of the petitioner that the samples were rejected and the supplies did not conform to specifications is a sham defense. The plea that petitioner has no obligation to make payment is devoid of merit.
(9) Learned Additional District Judge while passing the impugned order has not granted any interest or awarded any cost. I do not find any material irregularity or jurisdictional error in the impugned order calling for interference under Section 115 of the Code of Civil Procedure. Revision petition has no merit and is dismissed.