JUGGILAL KAMLAPAT Vs. PRATAPMAL RAMESHWAR

JUDGEMENT

(1.) I have gone through the differing judgments of my learned brethren Gupta and Kailasam. The difference arises, I find, primarily from divergent interpretations of what was pleaded by the parties. What Kailasam J. considers as having been admitted in the pleadings, by implication, was assumed by Gupta J. to be the matter put in issue by pleadings of the two sides which had to be decided.

(2.) After having considered the pleadings of the parties, I am unable to agree, with great respect, with my learned brother Kailasam that this case can be decided in favour of the plaintiff on the pleadings of the parties. It is true that the defendant admits the contract under which goods were to be delivered to the defendant under delivery notes to be supplied by the plaintiff for which payments were to be made by the defendant. But, that did not mean that the defendant accepted what the plaintiff alleges to be the contract between the parties with all its alleged implications. The crux of the whole matter was whether the plaintiff had carried out what it had undertaken and tendered delivery notes in respect of the contracts still left for us to consider so as to comply with the conditions of the contract really admitted by the defendant. In other words, there is a dispute on what the parties understood the contract to provide or mean. While the defendant accepts that there was a contract, he does not accept the plaintiff"s version about its due compliance by the plaintiff and a breach of it by the defendant. If this had not been so there could be no dispute. The whole dispute revolved round the question:Was tender of delivery orders containing certain additional conditions according to or at variance with the contract between the parties

(3.) The plaintiff realized fully that the difficulty in the way of an acceptance of its case was caused by the additional conditions sought to be attached to actual delivery by the delivery orders tendered by it, It therefore, amended the plaint by adding as follows: