LAWS(CAL)-1982-12-2

AMERICAN PIPE COMPANY Vs. STATE OF UTTAR PRADESH

Decided On December 10, 1982
AMERICAN PIPE COMPANY Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) This appeal is directed against a judgment and decree dated Jan. 17 and 22, 1973 passed by Ajoy K. Basu, J. By the said judgment and decree, the learned .trial Judge dismissed the suit of the appellant. The appellant's suit was filed in the following circumstances :-- By a contract in writing dated 21st June, 1952 (together with annexures of special conditions dated 21st June, 1952) the appellant agreed to sell and the respondent agreed to purchase through the Superintending Engineer. Tubewell Circle, East Moradabad, 50,000 running feet of pipes on terms and conditions mentioned in the said contract read along with the said annexures of special conditions. The appellant submitted tender and offered to supply the said pipes from its place of business in Calcutta within the said jurisdiction and received the acceptance thereof at the said place. The appellant also received the tender notice at Calcutta within the said jurisdiction. The said contract, inter alia, contained the following terms and conditions -- (a) The person or persons whose tender is accepted shall within ten days after such acceptance deposit with the respondent either in cash or in securities such sum together with the earnest money amounting to Rupees 13,125/-. The appellant agreed to supply further quantity of pipes not exceeding 1,50,000 running feet over and above 50,000 running feet ordered on the same terms and conditions provided orders to supply were given within I 1/2 months from the date of signing the contract and the appellant would furnish security equal to 5% of the value of the subsequent order or orders immediately on receipt of such order or orders. (b) Payment would he made by the Executive Engineers concerned within a month of the supplies reaching the destination station in Uttar Pradesh in satisfactory condition after deducting 5% from the bill or bills as further security. Defective supplies will not be paid for. (c) The goods should be supplied within four months from the date of written order. It was further agreed expressly and/or im-pliedly by and between the parties that security deposit comprising of (deposit money along with the earnest money and of the 5% of every bill in respect of 50,000 running feet would be refunded and payable to the appellant after completion of delivery of 50,000 running feet and security in respect of 1,50,000 running feet would be similarly payable and refunded to the appellant on completion of supply of 1,50,000 running feet. (d) Payment according to the appellant would be made to the appellant in Calcutta within the aforesaid jurisdiction. (e) Pursuant to the said contract the appellant duly deposited the total sum of Rs. 13,125/- with the Executive Engineer, Tubewell Circle (South) as security equal to 5% of the estimated value of the order. (f) By its letter and telegram dated 22nd luly, 1952 tie respondent exercised the option under Clause (8) of the Special Conditions and placed a further order for 1,50,000 running feet of pipes and the appellant duly deposited the sum of Rs. 39,375/-as security equal to 5% of the value of the subsequent order.

(2.) According to the appellant, the deposit in respect of the order for 50,000 running feet should be refunded after the execution of the said order and the security amount in respect of the subsequent order should be refunded to the appellant after the execution of the said subsequent order. Pursuant to this contract the appellant started supplying pipes of 50,000 running feet in terms of the contract.

(3.) Time for performance of supply of 50,000 running feet was at the request of the appellant extended up to 31st Dec., 1952 and the time for supply of 1,50,000 running feet of pipes was similarly extended till July 31st, 1953 at the request of the appellant. According to the appellant, in respect of the order for 50,000 running feet of pipes the appellant supplied 49,050 running feet. But according to the respondent the appellant had supplied only 45,983 feet 8" pipes.