Document Fragment View

Matching Fragments

Disputed Facts

14. There is no privity of contract between plaintiff and defendant. Mr Pradeep Batra of M/s Grandlays Electricals (India) had given cash discount of Rs 3,00,000/- for delay in delivery and Rs 4,00,000/- discount for supply of sub standard quality cables. Adjustment of an amount of Rs 1670.00/- for excess billing and an amount of Rs 29,631/- towards lab testing charges. Sum of Rs 3,878.46/- and Rs 5,320.23/- for rate difference in Bill No. 10367 and 10368.

Findings

39. DW1 deposing on the above lines relied upon test report Ex DW1/11. In cross examination he admitted that no representative of plaintiff was present when sample was sent for testing. He denied the suggestion that plaintiff never authorize defendant for sending the sample for testing or that false report has been obtained or that material was of good quality etc. Defendant has not examined any one from the lab which allegedly tested the sample. Defendant also did not prove payment of lab testing charges. Hence, test report as filed by defendant cannot be relied upon as the same has not been proved by the defendant as per law.

40. Ld Counsel for defendant has argued by referring to his cross examination that PW1 has admitted the report Ex DW1/11 but said contention is not sustainable. PW-1 has deposed that as per report supplied material failed in physical test for insulation. He did not admit that report was correct. What he admitted was that it was mentioned in the report that material failed the test. This is also apparent from the fact that he volunteered that samples were sent without their consent and knowledge and they were not aware whether the samples were their's or not. He also denied that he was not aware if any sum of Rs 29,631/- was paid to the lab. In these circumstance, it cannot be said that PW1 admitted that material supplied between 7.12.2001 and 28.12.2001 were of substandard quality entitling defendant to deduct sum of Rs 4 lakh and testing charges of Rs 29,631/-.