LUCKY ENGINEERING WORKS REGD Vs. G S CHADHA

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 29.11.2001 by which the suit of the respondent/plaintiff for recovery of advance price paid to the appellants/defendants with respect to a machine (which was not supplied) was decreed. THE suit has been decreed for Rs.3,80,885/- alongwith costs and interest @ 12% per annum.

(2.) THE facts of the case are that there was a contract between the parties on 24.8.1998, Ex.PW1/1, by which the appellants/defendants agreed to supply a machine " 30 inch working width Roto Gravier Single Colour printing machine with single station RFA No.8/02 Page 1 of 5 coating machine roll to roll". THE total price of the machine agreed to be paid was Rs.4,80,000/- and of which a sum of Rs.2 lacs was received in advance. THE balance payment was Rs.2,80,000/-. THE delivery period was six weeks.

(3.) IN my opinion, one determinative issue which arose during the course of arguments in the present appeal was that the respondent agreed to make the payment of the balance amount of the machine even today so that the appellants should give the machine on payment of the complete price. When this was put to the appellant No.2, who is present in person, he outrightly refused on the ground that machine was no longer available as the same was burnt in a fire. Further, when another proposal was put to the appellant No.2 as to whether he is ready to refund the amount received with reasonable interest, the appellant No.2 stated that he is not ready to return even a single rupee.