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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 ..... t the rate of 21.90 per litre, 150 M.T. Carbaryl 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . of Carbaryl 50% W.P. the plaintiffs have 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fs are entitled? 11. What 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has also claimed penalty in respect of sample charges. He has thus contended that no amount is due and payable by the defendants to the plaintiffs. 10. Now turning to the question of liquidated damages, the learned counsel for the plaintiffs fairly conceded that clause 18 of the contract provides for penalty or liquidated damages on delayed delivery or non-delivery but does not contemplate any claim of liquidated damages in respect of the non-supply of samples. The learned counsel for the plaintiffs has not been able to demonstrate from any of the documents or any of the record that there is a right in favour of the defendants to claim any amount towards the damages arising out of non-delivery of samples. Not only that even on record there is no evidence pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 delivery of the goods. From the evidence which is on record, it is clear that there was a time period and delivery period prescribed in the contract between the parties. It is also clear from the invoice and the date of delivery mentioned therein that there has been substantial delay in delivery of the goods of a substantial quantity of goods. Clause 18 of the contract provides for levy of damages and penalty in an event if there is a delay in delivery of the goods. Said clause 18 of the contract reads as under :- (18) Penalty. -- In case, the contractors fail to deliver the material or any consignment thereof, within the contracted period of delivery or in case the material is found not in accordance with the prescribed specifications and/or approved sample, the Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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