UNION OF INDIA Vs. RAM NARAIN DHAWAN

JUDGEMENT

(1.) The two regular first appeals arise out of a suit filed by Ram Narain against the Union of India for recovery of Rs. 37,131/10/9 and is directed against the Judg Shri Pritam Singh, Commercial Sub Judge, 1st Class, Delhi, dated 24th June 1955 granting Ram Narain Plaintiff a decree for Rs. 36,764/10/9. Regular First Appeal No. 128-D of 1955 has been filed by Ram Narain plaintiff praying that the decree of the trial Court be modified and he be granted interest on the sum of Rs. 36,764/10/9 at the rate of 6 per cent per annum from the 27th of February 1952 (the date of presentation) of the plaint ) to the date of payment or realisation. Regular first appeal No. 129-D of 1955 is by the Union of India against the decree granted by the trial Court in favour of the plaintiff.

(2.) The dispute arises oat of the agreement Exhibit D. 58 admittedly entered into between the plaintiff and the defendant for supply of milk (fresh standard) to Field Service Depot, Jammu, for the period from 1st of May 1951 to the 30th of September 1951. The supply was to be made either at Field Service Depot, Jammu, or direct at hospital Lines with in a five miles radious of G. P. 0. Jamma. The other terms of the contract relevant to the present controversy are contained in clauses (2), (5) and (II) of the Special Conditions governing the contract and in the schedule annexed to the said contract. Clause (2) inter aha provides that the supplies will be made at such times and in such quantities as the A. S. C. Officer concerned or his representatives may direct. Clause (5) about which there has been a lot of controvesy reads "if desired, the fresh milk will be supplied in two deliveries (one morning and the other evening ) at the times as ordered by Officer operating the contract." Clause (II) authorises the Officer operating the contract, to purchase from other sources, at the suppliers risk and expense, the articles agreed to be suplied or such substitutes therefor as have been shown in the schedule (1. A. F. Z. 2121) or any other substitutes that may be sanctioned by the Commander 21 L of C. AREA from time to time in case of failure on the part of the contractor to supply the contracted goods. The schedule again provides that thsupplies will be made at such times and in such quantities within the limits specified therein as ordered by the Officer operating the contract or his representative. It also sets out the approximate quantities of milk required under the contract, the rates and the authorised substitutes that can be purchased by the Government. In terms of the said schedule the substitutes for the contracted articles could be procured from the Government stocks at the risk and expense of the Contractor.

(3.) As we have said above the time for supply had to be determind by the Officer operating the contract and accordingly a demand note for 1st of May 1951 (Exhibit P. 41) was issued requiring the Contractor to supply milk as under :- <FRM>JUDGEMENT_6_DLT1_1965Html1.htm</FRM> The plaintiff went on supplying the milk to the extent of quantities demanded and at the time specified by the Officer operating the contract from 1st of May, 1951 to 24th of May 1951. There were some variations in timings up to the 25th of May 1951 a!so but the supplies continued to be made by the plaintiff. On 24th of May 1951 the time for supply of milk with effect from 26th May 1951 was fixed as under : - <FRM>JUDGEMENT_6_DLT1_1965Html2.htm</FRM> In the letter dated the 24th of May, 1951, Exhibit P. 4/A, fixing time as aforasaid, it was also stated that fresh milk will not be accepted after 06.00 hrs. for the first 07.00 hrs. for the second and 20.00 hrs. for the third lot. The plaintiff was dissatisfied with the change in time and did not supply any milk from 25th of May 1951 to 28th of May 1951. The plaintiff approached the Commander, Army Service Corps who changed the timings for the morning deliveries from 4 A.M. and 5 A.M to 5 A.M. and 6 A.M. and this change became effective for supplies from 29th May 1951. From 29th May to 6th July 1951 the plaintiff did not supply milk required to be supplied at 5 A.M. but supplied the requisite quantities which he was asked to deliver at 6 A.M. and 5.30 P. M. Dissatisfied even with the above timing the plaintiff approached higher authorities and the time was again changed from 7th of Jully as under :- <FRM>JUDGEMENT_6_DLT1_1965Html3.htm</FRM> The plantiff thereafter went on supplying milk as desired by the defendant. It may be pointed out that two hours of grace were allowed to the plaintiff for supply of milk. For instance supply to be made at A.M. could be made by 6. A.M. and the supplies required at 5 A.M. could be made up to 7 A.M. It has been admitted by Thakar Singh P. W. I that because of the two hours grace period 5. 30 A.M. supplies could be made by 7. 30 A.M. Since one of the argument made at the bar on the behalf of the plaintiff is that he was served with no demand notice with respect to the supplies to be made on 26th of May 1951 it would be appropriate to point out that by letter dated the 25th of May 1951 Exilibit D. 6/A the plaintiff informed the defendant that since it was impossible for him to make supplies at 4 A.M. and 5 A.M. he will not at all be responsible for non-supply of milk and that the time for first delivery should be extended so that he could continue to supply the milk. The learned counsel for the plaintiff would like us to read this letter to mean that the plaintiff declined to supply milk at 4 A.M. but there was no refusal to supply at 5-30 P.M. It is also necessary to set out certain facts regarding the issue of tinned milk by the Government stores on account of failure of the plaintiff to supply the milk from 25th of May 1951 to 28th May 1951 and partially from 29thofMay195lto6thof July 1951. Mention of these facts has become necessary as one of the contentions raised by the learned counsel for the plaintiff is that the Government was obliged to minimise damages even if there was a failure on the part of the plaintiff to supply milk and, therefore, they should not have issued tinned milk which was much more expensive but should have purchased fresh milk from the market. It has further been argued that the only substitute that could be purchased by the Govt. was fresh milk and not tinned milk. We have already pointed out that the substitutes were provided for in the Schedule and by the special conditions governing the contract it was agreed that in the event of failure on the part of the plaintiff to supply the contracted articles for any cause whatsoever those articles or their substitutes could be purchased at the risk of the plaintiff. In the plaint this matter has been referred to only in paragraph 13 (b) and (d) In the said paragraph no grievance has been made that tinned milk was not an authorised substitute for the fresh milk contracted to be supplied and the only grievance made is (a) that the supply of tinned milk was not necessitated on account of failure of the plaintiff and (b) that frash milk from other sources would have been cheaper than the tinned milk and therefore the Government should have reduced the risk of the plaintiff to a nominal amount by purchasing fresh milk rather then issuing tinned milk. The practice followed by the military authorities was to forward all the risk proformas to the plaintiff wherein the quantity of tinned milk issued and the extent of risk imposed on the plaintiff on account of short supplies was set out. In reply to such proformas the plaintiff addressed various letters to the authority concerned but in none of those did he raise any dispute either about the quantity of tinned millk: issued or about the substitite being unauthorised.