SHIV ISPA UDYOG PRIVATE LIMITED Vs. INDUS VALLY

JUDGEMENT

(1.) It is not denied that time for delivery of goods was extended upto 15-3-79. Nor is this in dispute that the seller delivered the goods by 12-3-79. Now in terms of the clause 5 which we have quoted above the purchaser is entitled to 1/1000 per cent of the total value of the goods for each day's delay. This is his right. He has no right to claim or "confiscate" the entire amount of Rs. 40.000.00 because the contract was never cancelled. Only where here is a delay of more than seven days the purchaser is given the right to cancel the contract and to "confiscate the guarantee of Rs. 0,000.00 ". But that is not the case here. In fact under the contract Supply was made and was accepted by the purchaser. The second part of the clause will not therefore, come into operation. The first part of the clause giving a right to claim damages at the rate of 1/1000 per cent of the total value of the goods is all that the purchaser is entitled to in this case.

(2.) Here the terms of the contract will govern the parties. The purchaser cannot claim anything more than what is stipulated in the contract. The guarantee bond was furnished in terms of the contract. The contract is paramount. The guarantee bond is subordinate to the contract. The rights and obligations of the parties are defined in the contract. The purchaser is entitled to damages in terms of the contract. The contract gives him a right to "confiscate" the entire amount of Rs. 40,000.00 only if the delay exceeds 7 days and the purchaserc ancels the contract. That will be a case where the seller has filed to deliver the goods. This is not so here.

(3.) The contract is of paramount importance. The guarantee is subordinate to its paramountcy. It is subject to its terms. The contract says that if there is a delay in delivery of goods damages will be ascertained on each day's delay at a given rate. If there is no delivery at all for more than seven days the purchaser will have a right to can cel the contract and confiscate the entire amount of Rs. 40,000.00 . This is the long and short of the whole case. Distinguished from :-