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TMI Blog2006 (3) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... rbaryl 10% Dust for and at the price of Rs. 3,250/- per M. Ton and 25 M. Ton Carbaryl 50% W.P. at the rate of Rs. 16,950/- per M. Ton. Pursuant to the offer given by the plaintiffs to supply the said quantities, the said offer was accepted. By the said letter the plaintiffs also proposed that 90% of the price of the goods to be supplied should be paid against the dispatches of the goods and the balance of the 10% of the price to be paid on the fulfilment of the terms and conditions of the tender document. The plaintiffs by a further letter dated 16.4.1973 addressed to the Government offered to supply additional quantity of 850 M. Ton of Carbaryl 10% Dust from 15.5.1973 to 30.5.1973 and further quantity of 500 M. Tons thereafter upto 30.6.1973. The defendants by their letter dated 26.4.1973 accepted the plaintiffs offer for supply of 80,000 liters of Endrin 20% E.C. (I.C.I. Specification) duly packed in one litre packing at the rate of Rs. 21.90 per litre exclusive of taxes. It also accepted the offer to supply 150 M. Tons of Carbaryl 10% Dust packed in 50 Kgs. packing at the price of Rs. 3,250/- per M. Ton. exclusive of taxes and 25 M. Tons Carbaryl 50% W.P. packed in 50 grams pack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received Rs. 99,663.93 less. Thus, according to the plaintiffs there is due and payable an outstanding amount of Rs. 2,48,910/-. The plaintiffs by their letter dated 12.1.1978 called upon the defendants to make payment of the said amount of Rs. 2,48,910/- and in reply thereto the defendants by their letter dated 15.9.1973 contended that they have withheld the payment of the plaintiffs of aggregate total of Rs. 67,009/- only and they have imposed liquidated damages on the plaintiffs in accordance with clause 18 of the general terms and conditions of the contract for delayed delivery of the goods. 4. In the aforesaid circumstances the plaintiffs have filed the present suit for the balance amount due and payable by the defendants to the plaintiffs of sum of Rs. 2,48,910/- with interest thereon as on the date of filing of the suit the claim of the plaintiffs comes to Rs. 2,56,560.00 and further interest on the principal amount of Rs. 2,48,910/- at the rate of 15% per annum from the date of the suit till payment and/or realisation. 5. The defendants have filed the written statement in the present suit and have inter alia contended that the suit is barred by Law of Limitation. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at decree ? What order ? 7. The matter was referred to the Commissioner for recording evidence between the parties. The plaintiffs have examined one witness and the defendants have also examined one witness. Documents have been filed. In so far as the documents of the plaintiffs are concerned, they are marked Exhibit A collectively which consists of correspondence, invoices, delivery challans, etc., The defendants have also filed documents which are 29 in number being D1 to D29. There is also oral evidence led by both the plaintiffs and the defendants in respect of the aforesaid controversy in the present suit. 8. The learned counsel appearing for the plaintiffs has contended that the plaintiffs are entitled to payment of the balance amount because the defendants have not made payment of the entire amount. The learned counsel for the plaintiffs has further submitted that the plaintiffs have complied with their obligations under the terms and conditions of the contract and effected delivery of the goods in accordance with the terms and conditions of the contract and, therefore, the defendants were not eligible and/or entitled to levy any claim for penalty or damages. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 M.T. in 500 grm pack. 31.8.73 M/s. Devidayal (Sales Pvt.Ltd.) Carbaryl 10% Dust. 25 M.T. in 50 grm. 31.9.73 The same is forming part of Exhibit A which are four letters namely dated 30.5.1973, letter dated 13.6.1973, letter dated 15.7.1973 and letter dated 6.7.1973. Under each of the said contract, the delivery was stipulated by each of the respective dates in respect of each of the said items. The learned counsel appearing for the defendants has taken me through the invoices which are forming part of Exhibit A and the goods which are delivered are mentioned in each of the invoices and the date of the delivery is mentioned in the invoices which are produced by the plaintiffs themselves which indicates delay in delivery of the goods. The learned counsel for the defendants has also drawn my attention to the three tables which were before the Commissioner giving break up and details of each of the consignments of delay in delivery and the quantum of penalty charges. He has also drawn my attention to the penalty in respect of the non-supply as well as short supply of the material. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defendants have to demonstrate that they were required to procure the said item from the open market and the amount of the difference has been claimed by them as and by way of withholding of the price of the goods sold and delivered by the plaintiffs. It is well settled that the claim for non-delivery or short delivery has to be based on the principles of mitigation of losses by the defendants even if right to claim damages is established. In the present case neither the defendants have been able to establish that there has been in fact any non-delivery or short-delivery of the goods nor they have been able to establish the quantum of damages. In view thereof the said claim for non-delivery and short-delivery is required to be rejected. In the present case the learned counsel for the defendants has failed to show any evidence on the record establishing non-delivery or short-delivery of the goods. In fact he has fairly conceded that it is not possible for him to identify any particular consignment which is not delivered or where there is short delivery. 12. This leads me to the last contention whether the defendants are entitled to liquidated damages in respect of delay in del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid facts and circumstances, I answer the issues which are framed as under :- (i). In so far as issue no. 1 is concerned, the answer to the said issue is in the negative. (ii). In so far as issue nos. 2 and 3 are concerned, neither of the parties has pressed the said issues. (iii). In so far as issue no. 4 is concerned, I answer issue no. 4 in the affirmative to the extent that the defendants have not made payment in respect of the balance of the price of the goods sold and delivered after deducting and adjusting the claim in respect of delay in delivery of the goods. (iv). In so far as issue no. 5 is concerned, I answer the same in the affirmative that the plaintiff has committed breach in effecting timely delivery as per the contract and thus there is delay in delivery of the goods. Consequently the defendants are entitled to damages in respect thereof. (v). In so far as issue no. 6 is concerned, I am of the opinion that answer to issue no. 6 is covered by answer to issue nos. 4 and 5. (vi). In so far as issue nos. 7, 8 and 9 are concerned, the answer to the said issues is that the plaintiffs are entitled to the sum of Rs. 1,60,102.55. In so far as inter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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