PRECISION CONTROLS Vs. TUBES INVESTMENTS OF INDIA LIMITED

JUDGEMENT

(1.) THE appellants are the defendants 1 and 2 and the 3rd defendant is the second respondent herein in the suit in O. S. No. 7246 of 1983 on the file of the VIII Assistant Judge, City Civil Court , chennai. THE appellants have preferred this appeal as against the judgment and decree of the court below dated 30. 3. 1990.

(2.) THE first respondent/plaintiff filed the suit for recovery of Rs. 40,205/- with interest thereon at 12% p. a. from the appellants and the second respondent herein on the basis of the contract entered into between the first respondent on the one hand and the appellants as well as the 3rd respondent on the other for the supply, erection and commissioning of one Rotating and Tilting type Electrically Heated carbonitriding Furnace as per the specifications and description, on the terms and conditions and other details set out in the purchase order of the first respondent/plaintiff bearing No. 20/0504/2607 dated 18. 3. 1982.

(3.) THE averments in the written statement filed by the appellants as well as the second respondent herein are briefly as follows: - (a) It is true that the plaintiff placed an order on 18. 3. 1982 with the defendants agreed for the supply, erection and commissioning of one Rotating and Tilting type electrically Heated carbonitriding Furnace. It is admitted that by letter dated 20. 3. 1982, the first defendant-firm confirmed their acceptance of the order, but it is denied that the details set out in the purchase order were agreed to between the parties as alleged. Further, the insurance guarantee was not agreed to and instead of which an indemnity bond was given. (b) In the defendant's letter No. PC:tn:82 dated 2. 3. 1982, the delivery period was given as 15 to 18 weeks from the date of receipt of order. Even in the plaintiff's purchase order, the delivery period has been mentioned as under: - "complete plant and equipment will be supplied within 16 weeks from the date of placement of the order, a period of two weeks will be allowed for erection and commissioning of the furnace. &quot ; Hence the contention that the furnace should be supplied, erected and commissioned by 9. 7. 1982 is incorrect. (c) THE defendants supplied the furnace on 14. 12. 1982. but it is denied that the delay of 23 weeks was caused. In fact only around 10 weeks'delay was caused due to circumstances beyond the control of the defendants. THE order had been accepted subject to Force majeure Clause as per the general conditions of sales attached along with the defendant's offer. THE labour unrest and strikes prevailed in the defendants' factory had been communicated to the plaintiff in letter No. PC:wo:3993:82 dated 16. 4. 1982 and was also personally inspected by the representatives of the plaintiff when they came to the factory during that period. (d) THE plaintiff had also contributed to the delay by three weeks as the drawing of the equipment sent by the defendants on 16. 4. 1982 had been approved by the plaintiff only on 6. 5. 1982 and the same is received by the defendants on 10. 5. 1982. Further the technical defects encountered by the defendants beyond their control were to be tackled so as to complete the furnace with specific reference to the position of the "retort" forming part of the material. It was approved by the plaintiff only on 13. 10. 1982 and confirmed later on 22. 10. 1982 as they have stated that they needed the furnace along with the "retort" and not otherwise. THErefore the delay in delivery was acceptable to the plaintiff. Further, the various alterations were suggested by the technical personnel of the plaintiff as per their letter dated 2. 11. 1983 after the preliminary inspection. (e) It is denied that 10% retention money has to be paid by the defendants to the plaintiff since the managing Director of the defendants had a discussion with the General Manager of the plaintiff who confirmed to waive the retention money in view of the explanation given for the delay in delivering the equipment. THE equipment was inspected by the senior officials of the plaintiff in the defendants'factory site and clearance was given without insisting on any retention money. In the meeting held on 14. 12. 1982 both the parties agreed the same and recorded minutes of the meeting. (f) THErefore the defendants have not caused any wilful delay nor liable to pay any damages to the plaintiff. Hence, the suit may be dismissed.