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TMI Blog2001 (6) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... ract on this the defendant raised the dispute that it will pay the price based on quantity of goods as per their dispatch from the port in bags. The defendant made part payment but a balance of more than rupees one crore remained to be paid. The plaintiff refuted the stand of the defendant regarding the payment by stating that as per the terms of the contract the payment was on COD basis i.e. cash on delivery basis. Delivery of the cargo took place on 7/8 June, 1995 because of 9th June, 1995 defendant started issuing instructions about the disposal of the cargo. the plaintiff was entitled to payment of price of the entire quantity of goods latest on 9th June, 1995. The payment could not be linked with dispatch of the entire quantity of goods nor the determination of the total quantity could be based on the dispatches. The defendant tool its own time in arranging for the dispatch of goods. the payment of price of the goods, Therefore, could not be made dependent on this. Ultimately the plaintiff filed the present suit for recovery of ₹ 1,05,55,490/- was the balance price while the rest was element of interest. 2. The crucial question for determination in this case is as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation it is argued that certification from the MMTC Official it cannot be said that a quantity of 14,250 MT was finally determined. Further it was argued that the plaintiff had only offered the quantity of 14,250 MT. The offer did not mean that the quantity had been officially determined. On actual delivery it was found that the quantity was less and the defendant was, Therefore, liable to pay only for the quantity supplied to it. 4. On the other hand the learned counsel for the respondent argued that the contract was for 14,250 MT. For this quantity sufficient proof had been offered to the defendant as per the terms of the contract. The defendant did not raise any dispute about quantity at the relevant time. It took delivery of the goods as offered by the plaintiff. The present dispute about quantity being short was an afterthought. It is explained that shortage, if at all, could have occurred while packing the goods in bags by the clearing agent as per instructions of the defendant. In sucha bulky cargo some amount of shortage could occur due to loss in packing. The cargo is received in the shape of granules and is packed in bags running into thousands. The defendant must have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means deliver instructions were issued on 7th June, 1995 itself. The third letter of 7th June, 1995 is by Vilas Transport Company i.e. the clearing agent to the MMTC i.e. the defendant/appellant. The letter needs to be reproduced: 07.06.95 The General Manager M/s. MMTC Ltd. Core 1, Scope Complex, 7, Institutional Area, Lodi Road, NEW DELHI. Dear Sir, We hereby confirm that we are clearing 14,250 MT of Di Ammonium Phosphate (DAP) of Jordanian origin arrived par vessel, m.v. A1. Shams imported by M/s. Dimple Overseas Limited, New Delhi. We further confirm that we are holding the above cargo spot purchase with us in JNPT cloys and will deliver as per the instructions to be received from you or from your Bombay office from time to time. We have also bagged 3,300 MT in 50 Kg Bags which is lying at the port ready for dispatch. Please give us dispatch instructions accordingly. Thanking you Yours faithfully, VILAS TRANSPORT CO. PARTNER 6. ON 8th June, 1995 appellant wrote to the respondent signifying acceptance of the offer to buy 14,250 MT of DAP in bulk. This shows that the entire quantity was lying in the shape of one consignment in bulk. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Bombay for further necessary instructions regarding dispatch and payment of transportation charges. this fax message from MMTC to the clearing agent in our view completely clinches the issues in favor of the plaintiff. Unless the property in goods had passed to the defendant/MMTC there could be no occasion for MMTC to issue dispatch instructions regarding goods to its clearing agent. M/s. Vilas Transport Company and Company were the clearing agents of the MMTC is established from MMTC's own inter-departmental fax message dated 19th June, 1995 where the said clearing agent has been described as our handling agent . In this connection letter dated 15th June, 1995 is also relevant and important. This is a letter from Vilas Transport Company i.e. clearing agent to MMTC where MMTC has referred to existing contract agreement with you . Further Vilas Transport Company informed MMTC in the said letter that deliveries have been effected as per your dispatch instructions dated 9th June, 1995 to the following places. 9. The clearing agent had confirmed to the defendant about quantity of 14250 MT held by them. The plaintiff had vide its letter dated 20th June, 1995 submitted follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors. Payment could not be linked to this. This plea taken by the appellant, in our view, was totally false and was intended to avoid payment. The MMTC letter dated 9th June, 1995 addressed to the Assistant Collectors of Customs wherein MMTC confirms having purchased 14,250 MT of DAP leaves no scope for the MMTC to dispute the quantity as at the time of delivery ex JNPT, Bombay and, Therefore, in our view the MMTC i.e. the appellant is liable to pay the price of 14,250 MT. No other dispute was raised. In view of this clear position emerging from admitted documents on record, no case was made out for grant of leave to defend the suit. In our view the learned Single Judge rightly rejected the application of the appellant for leave to defend the suit. 13. Accordingly we endorse the finding of the learned Single Judge that the plaintiff had divested itself of the possession and property in goods in favor of the defendant and the property in the goods vested in the defendant through their agent at the most on 9th June,1995. The sale and transfer of the property in the goods from plaintiff to the defendant this was complete on 9th June, 1995. This delivery was accepted by the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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