S K AGRAWAL Vs. VARSHA A MAHESHWARI

JUDGEMENT

(1.) Challenge in both these Writ Petitions filed by rival Civil Procedure Code, subject to defendants depositing a sum of Rs. 34, 24,895/in Court or then furnishing a bank guarantee for that sum within a period of one month. The plaintiff claims in Writ Petition that such a relief could not have been granted and a decree for amount claimed with interest ought to have been awarded. Defendant no.1 has filed Writ Petition No. 5664/2010, and very same order to the extent it calls upon defendant no.1 to deposit the amount or to furnish Bank guarantee has been assailed in it claiming unconditional leave. In that Writ Petition on 23.11.2010 this Court extended time to furnish bank guarantee till 30.11.2010 and thereafter on 01.12.2010 the petitioner /defendant no.1 has accordingly furnished the Bank guarantee in that amount to the Trial Court.

(2.) Plaintiff through her Power of Attorney Holder while assailing the order in writ Petition No. 5364/2010 has invited attention to the purchase orders to show that the quality of powder supplied was to be inspected by the defendants at their end and thereafter, payment was to be released within 7 days. The material if found inferior was to be returned within 7 days. Various terms and conditions of the purchase order are indicated to urge that time has always been the essence of the contract. In view of this the defence of defendants that material supplied was of inferior quality is, stated to be by way of after thought and for that purpose attention is invited to the quantity of powder asked for in each purchase orders and how it has steadily increased. The details of bills and payments released are also shown to this Court pointing out that except for the entries at Sr. Nos. 37 to 44 in chart there has been no delay at all and all payments have been released duly after inspection. It is urged that the payments released were not in accordance with supply or could not be corelated and hence plaintiff was required to send a special representative to understand the accounts. For amounts remaining outstanding emails were required to be forwarded, but then it did not receive any response. When legal notice was sent on 03.03.2009, immediately within two hours reply notice was forwarded by defendants taking a stand that the material was of inferior quality.

(3.) Attention has also been invited to the alleged third party test reports and also to the test reports conducted by the defendants as alleged to show how plea as raised about inferior quality of material do not match with the said story. The Attorney of plaintiff contends that first grievance of poor quality has been made almost after nine months and then on the basis of the so called independent test reports, prorata deductions have been effected from all supplies. Out of total 77 trucks supplied, payments have been released for 55 trucks and there was never any complaint about remaining 22 trucks.