EDCIL (INDIA) LTD Vs. VISESH INFOTECNICS LTD

JUDGEMENT

(1.) Appellant defendant no. 2 was acting as Consultant for defendant no. 3 National Institute of Foundry & Forge Technology (NIFFT), Hatia, District Ranchi, Jharkhand. Government of India through Secretary, Ministry of Communication and Information Technology was impleaded as defendant no. 1. However, defendant nos. 1 and 3 have not been impleaded in the appeal as respondents on the pretext that neither any decree has been passed against them nor any relief has been pressed in this appeal qua them.

(2.) Briefly stated facts are that defendant no. 3 requested the appellant to supply and install desktop computers at the institute of defendant no. 3 at Hatia, District Ranchi in the State of Jharkhand. In turn, appellant awarded contract to respondent for supply and installation of desktop computers along with accessories at the defendant no.3 institute vide purchase order dated 28th August, 2006. As per the purchase order, respondent was to supply HP DX 7200 desktop computers. As the said model was not available in the market at the time of delivery, therefore, specifications were changed with the consent of appellant and it was agreed that respondent will supply more advanced model, that is, HP-DC-7600. Respondent completed the supply and installation of computers by 5th January, 2007 to the satisfaction of defendant no.3.

(3.) As per the purchase order, full supply and installation was to be completed by November, 2006. There was delay of about two months in completion of contract. Appellant made payments from time to time but withheld Rs. 4,85,598/- on the ground that penalty @ 2% of the delivery price for each week, subject to maximum deduction of 8% was to be leviable on the respondent in terms of Clause 10 of purchase order, on account of delayed supply and installation of computers. Respondent was aggrieved on account of withholding of the amount of Rs. 4,85,598/- by the appellant, therefore, approached the trial court by filing the suit for recovery of Rs. 4,85,598/- together with interest @ 18% per annum. It was alleged that appellant could not have withheld Rs. 4,85,598/- towards penalty. Supply and installation of the computers at the premises of defendant no. 3 was done to the satisfaction of defendants. Specification was changed with the consent of defendant no.2 on account of non-availability of the ordered model. Thus, appellant had no right to withhold the payment of respondent to the extent of Rs. 4,85,598/-.