STATE TRADING CORPORATION OF INDIA AGRICULTURAL PRODUCTION DIVN NEW DELHI WITHIN THE JURISDICTION OF THE DISTRICT COURT NEW DELHI AND BRANCH OFFICE AT 123 MOUNT ROAD MADRAS 6 Vs. S S MOHTE AND COMPANY REGISTERED FIRM OF PARTNERSHIP

JUDGEMENT

(1.) THESE two appeals arise out of the judgment of the learned Fourth Assistant Judge, City Civil Court, Madras, in O.S. No. 4534 of 1972. The plaintiff submitted its tender in response to an advertisement issued by the first defendant, for purchase of four items of Nutmegs with shell, Nutmegs without shell, Maco and Betelnuts. The total amount for which the plaintiff tendered came to Rs. 4,44,867. The plaintiff sent a demand draft for Rs. 44,487 being ten per cent of the value of the goods agreed to be purchased by him. The first defendant accepted the plaintiff's offer in relation to the second item, namely Nutmegs without shell, which was stored at Bombay. Out of this amount Rs. 26,409.65 due as and by way of deposit relating to the accepted quantity of the tender was retained and the balance was refunded. As a condition precedent for taking delivery of the goods, sales-tax was demanded by the first defendant and the plaintiff protested that it was contrary to the terms of the tender. Therefore, by a telegram, the plaintiff informed the first defendant that it was tendering the balance amount of price under protest on the ground that 40per cent, of the goods were deteriorated and became unfit for human consumption. The plaintiff's partner delivered a bank draft for a sum of Rs. 2,20,409.50 exclusive of sales-tax, under protest, and requested for delivery orders. This draft was returned to the plaintiff by the first defendant stating that the amount offered under protest could not be accepted. Thereafter, the plaintiff tendered a sum of Rs. 2,23,449.10 by bank draft which was inclusive of sales-tax and requested for delivery orders. This Bank draft was also returned on 26th September, 1969, as the amount had not been tendered in time, and the quantity was not, therefore, delivered. Apart from rejecting the bank draft on the ground that it had not been tendered within time, the first defendant refused to refund the balance of Rs. 26,498.65 stating that the amount had been forfeited on account of failure of the plaintiff to lift the stock. The plaintiff came forward with the present suit stating that the first defendant could not forfeit the deposit and that amount was liable to be returned. In the suit, the plaintiff impleaded not only the first defendant, the State Trading Corporation of India, but also the Union of India. In the written statement of the first defendant it was contended that no part of the cause of action arose at Madras, as the goods were stored at Bombay and they had to be taken delivery at Bombay. It was also contended that the tender was accepted only at Delhi. It was also contended by the first defendant that a sum of Rs. 26,499.65 was properly forfeited in accordance with the terms of the tender, which was accepted by the first defendant. The trial Court framed the following issues: 1. Whether the plaintiff is entitled for the recovery of the balance amount paid by way of earnest money"

(2.) WHETHER the plaintiff has committed breach of contract as contended by the defendant"

(3.) TO what relief"