RAJASTHAN STATE ELECTRICITY BOARD Vs. DAYAL WOOD WORK

JUDGEMENT

(1.) This is an appeal preferred against the judgment and decree dated 7-12-1983 passed in O.S.No.87 of 1981 on the file of Subordinate Judge, Kothagudem. The appellants are the defendants. Hereafter, the parties would be referred to as plaintiff and defendants as per the ranking assigned to them in the Court below.

(2.) The plaintiff-respondent filed a suit for recovery of an amount of Rs.17,434/- from the defendants. According to the case of the plaintiff, an amount of Rs.16,200/- was deposited with the defendants vide Demand Draft No.539627, dated 20-1-1981, payable at State Bank of India, Kota, towards security deposit as per the negotiations between the plaintiff and the defendants for the supply of sleepers by the plaintiff to the defendants, as per the tender notification issued by the defendants. According to the case of the plaintiff, the contract was not concluded as per the tender offered by the plaintiff and as such the plaintiff was entitled for refund of Rs.16,200/- with interest, which comes to Rs.17,434/-. The plaintiff gave a legal notice dated 17-12-1980, but the defendants failed to refund the same, therefore, he filed the suit. By filing the written statement, the defendants denied the case of the plaintiff. If is further contended by the defendants that the tender was submitted by M/s. Dayal Wood Works and as per the request of M/s. Dayal Wood Works, the defendants sent a copy of general conditions of the contract and also a copy of technical specifications for the sleepers along with their letter dated 11-5-1980 and in pursuance of the same, M/s. Dayal Wood Works submitted their quotation by registered post dated 10-5-1980 and after considering the offer made by M/s. Dayal Wood Works, the Superintending Engineer of the defendants sent a telegram and asked M/s. Dayal Wood Works to depute their representative for negotiations with two per cent security deposits and accordingly the said M/s. Dayal Wood Works sent their representative Sri G.K.Agarwal on 24-6-1980 to Kota and after discussions, Sri G.K. Agarwal as Managing Partner of M/s. Dayal Wood Works agreed in writing the terms and conditions with regard to supply of 6,000 wooden sleepers, and after the conclusion of the contract, Rs.16,200/- was deposited as security on 24-6-1980 by M/s. Dayal Wood Works. It is further stated in the written statement that it was agreed between the parties that the rate per sleeper would be at Rs.134-56 Ps. They stated that it was further agreed that the price quoted in the letter of the defendants dated 10-5-1980 shall remain firm. But after sending the purchase order on 19-7-1980, the defendants sent a letter dated 20-7-1980 refusing to accept the purchase order stating that terms in the purchase order are entirely different than what were agreed upon between the parties. But they further stated in the written statement that there was no substantial variation in the terms agreed upon in the purchase order, however, the plaintiff has chosen to file a suit for refund of Rs.16,200/- and absolutely there is no cause of action for the plaintiff. They also contended that as per the contract for supply entered into between the parties, only the Court at Jaipur/Kota, Rajasthan has jurisdiction, but not the Court at Kothagudem. They further stated that it is only the plaintiff - firm, which failed to supply the wooden sleepers as per the agreed terms and in view of that, it is the defendants who have suffered a sum of Rs.2,40,027/- and defendants are entitled for the same along with interest at 12 per cent per annum, and costs of Rs.3,000/- and accordingly, they prayed for the dismissal of the suit.

(3.) On the above pleadings of the parties, the Court below framed the following issues:- (1) Whether the described contract in the, plaint with D-3 remained unconcluded and if so the plaintiff is entitled for the refund of Rs.16,200/- ? (2) Whether a valid tender was presented by the plaintiff to the defendants on 1-5-1980 and whether plaintiff deposited the alleged money of Rs.16,200/-? (3) What was the part played by the Managing Partner of M/s. Dayal Wood Works and what is its effect on the suit claim ? (4) Whether the purchase order was different regarding terms etc., from what was offered by the plaintiff? (5) Whether the plaintiff has privity of contract with the defendants? (6) Whether this Court has territorial jurisdiction ? (7) Whether defendants are entitled for costs of Rs.3,000/- under Section 35-A of C.P.C. ? (8) Relief. Additional issue framed on 18-4-1983:- Whether there is an arbitration clause in the agreement between the parties and if so whether the suit is not maintainable?