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10.In cross examination stated that he was working with the plaintiff Company since 2000 and was deposing on behalf of the Company on the basis of the record. He had no knowledge or had never been part of any deliberations or meetings with the defendant pertaining to the transactions or fixing of the rate. He stated that all the meetings were done by Directors/Managers of the plaintiff's Company.

CS (Comm.) No.642/2021 M/S Agrico Organics Ltd. v. Bharat Minerals and Chemicals Ind. Page No.5 of 5 They were maintaining a running account due to regular transactions with the defendant. There was no outstanding amount against the defendant as on 19.08.2016. He was not aware if plaintiff had entered into supply arrangements with the defendant as defendant had got contract/bid from CMSS. Document Ex.D­1 was sent on behalf of the plaintiff Company. With regard to the question that plaintiff had supplied goods on the basis of fixed price contract of the defendant with CMSS, witness stated that they had supplied goods only to the defendant. He stated that he could not comment on how the rates were finalized between the parties and he was not part of discussion or negotiation. The variations in the invoices about rates were due to market rates but admitted that they had not filed any documents in support of the market rates of the goods. He denied that the goods were supplied on the basis of Clause­ 6 of the defendant contract with CMSS. He denied that no amount was due from the defendant or that the plaintiff had claimed a false amount.

19.Defendant has also placed on record the copy of their agreement with CMSS as per which they were required to supply 1746.25 metric tons of the aforesaid chemical at the base rate of Rs.92,600 per metric ton exclusive of excise, sales tax and transportation etc. and the supply was to be made between 19.12.2016 to 17.06.2019. Thus the rate at which defendant had to supply the goods to CMSS was fixed at Rs. 926/­ per kg excluding taxes and transportation etc.

21.Thus, plaintiff's claim that neither the price was fixed nor the same could have been fixed considering the market fluctuations has neither been proved nor shown to be reasonable.

22. The next point for deliberation is as to what would be the price fixed by the parties of the product in question. As discussed above, defendant had brought this fact to the plaintiff's notice that they were to purchase goods from the plaintiff and thereafter supply to the CMSS where the rate and period were fixed. The probable price of the product could have been fixed somewhere nearer to the price quoted by the defendant in his bid with CMSS. The price of product in question which is visible from the agreement of CMSS with the defendant is around Rs. 92,600/­ per metric ton or Rs. 926/­ per kg exclusive of tax, transportation etc., and about Rs.1,10,000/­ per metric ton or Rs.1100/­ per kg inclusive of taxes. Defendant stated that they had agreed to purchase the product @ Rs. 1000/­ per kg i.e. Rs. 1,00,000/­ per metric ton. Plaintiff's case is that the price for disputed period was fixed as per agreement between the parties @ Rs. 1250/­ per kg.

23. However, if the price quoted by the CMSS is compared with the old and new price of the plaintiff then it became clear that defendant voluntarily could not have agreed for the new price of Rs. 1250/­ per KG as the quoted price for CS (Comm.) No.642/2021 M/S Agrico Organics Ltd. v. Bharat Minerals and Chemicals Ind. Page No.11 of 11 the product Alfa Cyper Methrin as per the award was Rs. 926/­ per kg excluding taxes etc. or Rs.1,18,154.63 P including tax & transportation or about Rs.1100/­ per kg including tax but excluding transportation. Plaintiff was originally supplying the said products @ Rs. 1000/­ per kg to the defendant. Thus defendant's cost price would be Rs.1000/­ and selling price Rs.1100/­ per kg to CMSS, thereby, defendant would be earning net profit of about Rs. 100/­ per kg. However, if the defendant's cost price from plaintiff is taken as Rs. 1250/­ per kg and selling price is Rs.1100/­ per kg then defendant would have to bear a loss of about Rs. 150/­ per kg of goods supplied to CMSS. It would thus, be highly improbable that defendant would have agreed to enter into business for loss or on the cost price at any rate more than Rs. 960/­ per kg without tax (or Rs.1100/­ per kg including tax) offered by them in their tender filed with the CMSS. As has already been discussed that defendant had ample opportunity for negotiating the price with the plaintiff which is clear from Ex. D­1 dated 20­09­2016 and the tender submitted by the defendant and opened on 20­10­2016 as per Mark C dated 13­12­2016. Thus, there seems to be no reason why defendant would not have preferred to fix or atleast negotiate the price before submitting the tender for supply of the chemical to CMSS. In view of letter Ex. D­1, plaintiff was also aware that he had to negotiate within the outer limits of the price being quoted by the defendant in CS (Comm.) No.642/2021 M/S Agrico Organics Ltd. v. Bharat Minerals and Chemicals Ind. Page No.12 of 12 his tender with the CMSS.