9911796707
|
Home
Issues Involved:
1. Concluded Contract 2. Breach of Contract 3. Forfeiture of Deposit 4. Equitable Set-off 5. Limitation for Damages Detailed Analysis: 1. Concluded Contract: The primary issue was whether there was a concluded contract between the parties. The plaintiff argued that there was no concluded contract and only negotiations were ongoing. However, the appellate court found that a contract was concluded with the acceptance of the tender under Ex. B-10 dated 27/31-5-1967. The court noted that the plaintiff accepted the rates of Rs. 2,715/- and Rs. 1,225/- for zinc dross and zinc ash respectively, subject to the tender conditions, including the right of the defendant to split up the tender as per Clause 4. The court held that the contract became concluded when the defendant accepted the plaintiff's offer and split the tender between the plaintiff and another party. 2. Breach of Contract: The trial court initially found that the plaintiff did not breach the contract and was willing to perform it. However, the appellate court held that the plaintiff committed a breach by refusing to share the contract with another party. The appellate court reasoned that the words "subject to other tender conditions" in Ex. B-3 included Clause 4, which allowed the defendant to split the tender. The plaintiff's refusal to share the contract was deemed a breach. 3. Forfeiture of Deposit: The defendant contended that it was entitled to forfeit the deposit of Rs. 5,000/- under Clause 9 of the tender notice, treating it as earnest money for the due performance of the contract. The appellate court, however, held that the defendant could not automatically forfeit the deposit without proving actual damages. This decision was based on the principles laid down by the Privy Council in Murlidhar Chatterji v. International Film Co. Ltd., which required the defendant to prove damages and set them off against the plaintiff's claim. 4. Equitable Set-off: The appellate court allowed the defendant to claim an equitable set-off for the damages suffered due to the plaintiff's breach, but only to the extent of Rs. 5,000/-. The court recognized the defendant's right to plead equitable set-off, provided it was not time-barred on the date of the plaintiff's suit (21-6-1968). The court noted that equitable set-off could be allowed if it arose out of the same transaction and it would be inequitable to drive the defendant to a separate suit. 5. Limitation for Damages: The plaintiff argued that the defendant's claim for damages was time-barred under Article 55 of the Limitation Act, 1963, as the breach occurred on 21-6-1967, and the appellate court allowed the defendant to file additional pleadings on 6-7-1970. The defendant contended that the breach was continuing and the limitation period started on 1-5-1968 when the accumulated zinc dross was removed by fresh contractors. The court did not decide on the limitation issue but noted that the defendant had filed a separate suit (O.S. No. 7279 of 1971) for the recovery of Rs. 34,291.55, which would address the limitation question. Conclusion: The appeal was dismissed with modifications and conditions. The defendant was allowed to file a proper written statement claiming equitable set-off, subject to paying Rs. 300/- to the plaintiff and the requisite court-fee on the claim of Rs. 5,000/-. The additional written statement filed in December 1970 was eschewed for not pleading an equitable set-off. The parties were directed to bear their own costs in the appeal.
|
