THE KERALA STATE CIVIL SUPPLIES CORPORATION LTD., MAVELI BHAVAN, GANDHI NAGAR, KOCHI Vs. SRI. SIVA POLYMERS, A REGISTERED FIRM AT IV/278, MARADU, KOCHI

JUDGEMENT

(1.) There was a short supply of polythene bags (intended for the retail sale of rice, pulses etc.) by the plaintiff to the defendant contrary to the tender specifications. The defendant therefore had to invite fresh tenders for the supply of the requisite polythene bags which was responded to of course at a higher rate. The loss suffered by the defendant on account of the retender was deducted while settling the bills of the plaintiff for the polythene bags supplied. The sum of Rs. 1,92,131.00 so deducted by the defendant has been claimed in the suit along with interest on the amount already released.

(2.) The defendant contended that Ext.B1 tender conditions itself provide for the set off of liquidated damages consequent to the breach of the contract. Unliquidated damages were sustained by the defendant on account of retender for the supply of polythene bags at a higher rate solely because of the breach of the plaintiff. The damages to the tune of Rs. 1,92,131.00 were adjusted towards the loss and the balance including the security deposit was paid by the defendant. The court below has decreed the suit for the sum of Rs. 1,92,131.00 with interest thereon and interest on the amount already released was however declined.

(3.) The defendant has come up in appeal contending inter alia that the plea of adjustment should have been considered notwithstanding the absence of counter claim. We heard Mr. N.D. Premachandran, Advocate on behalf of the appellant and Mr.Abraham Joseph Markose, Advocate on behalf of the respondent. We also heard Mr. Liji. J. Vadakedom, Advocate as amicus curiae who has done a commendable job with his usual calm, composed and sober approach.