JAIN MILLS AND ELECTRICAL STORES Vs. STATE

JUDGEMENT

(1.) The plaintiffs prefer this appeal against the judgment dated 28-3-1979 and decree dated 10-4-1979 passed by the Subordinate Judge, Bhubaneswar, in O. S. No. 41 of 1975 III, disallowing the plaintiffs' claim to the extent of Rs. 47,792.04, while decreeing the suit in part only for a sum of Rs. 24,099.58.

(2.) The plaintiffs' case may be briefly stated as follows : The plaintiffs are the partners representing the registered partnership firm M/s. Jain Mills and Electrical Stores which deals in electrical goods and supplies electrical equipments, appliances and materials to Government and semi-Government Departments and also to the public in general. Defendant No. 2, the Executive Engineer, Lift Irrigation (Electrical, on behalf of the State of Orissa (defendant No. 1) invited tenders for supply of electrical goods and in response to the same, the plaintiffs' firm submitted its quotations on 5-2-1973. Defendant No. 2 accepted the quotations submitted by the plaintiffs' firm on 5-3-1973 and placed the purchase order in favour of the plaintiffs on 5-3-1973 with the direction that the materials should be supplied by 24-3-1973. The goods described in plaint Schedule A were despatched in time by rail, but in the transit there was some delay and so the said goods reached the defendants after 30-3-1973. The defendants have duly received the plaint schedule goods but in sipte of repeated demands from the plaintiffs for the payment, the defendants did not pay the price thereof. So ultimately the plaintiffs had issued letters to the defendants on 23-8-1973 and also on 18-9-1973 demanding of the defendants to return the 'A' schedule goods which the Lift Irrigation Department was wrongfully withholding without paying the price thereof the defendant No. 2 by his letter dated 27-9-1973 extended the stipulated period of supply of the goods which the plaintiffs had not supplied till 7-4-1973. Ultimately, on 20-5-1974 the defendant No. 3 had amended the purchase order No. 812 dated 5-3-1973 so as to include the 'A' schedule goods as well, indicating therein that the price payable for the same would be at the original contractual rate. As the prices of the said goods have considerably increased in the meanwhile, the plaintiffs did not agree to sell them at the prices stipulated in the original contract and so insisted on their return. The plaintiffs contend that in view of the conduct of the defendants, the plaintiffs are entitled to be paid for the goods at the prevailing market rate as on the date of S. 80, C.P.C. notice. Section 80, C.P.C. notice was issued by the plaintiffs on 16-10-1974. The defendants received the notice, but neither returned the plaint 'A' schedule goods, nor paid their price as demanded in the notice. So the plaintiffs filed the suit praying for the return of the plaint 'A' schedule goods and in the alternative prayed demanding payment of Rs. 66,735.62 towards the market value of the plaint 'A' schedule goods together with interest at 12 per cent per annum by way of damage from 16-10-1974, the date of issue of S. 80, C.P.C. notice. Hence the suit was filed for Rs. 72,891. 62 p. as per the calculation in plaint schedule B.

(3.) Defendant No. 1 is the State of Orissa and defendant No. 2 is the Executive Engineer and defendant No. 5 is the Assistant Engineer of the Lift Irrigation (Electrical), defendant No. 3 is the Executive Engineer, Lift Irrigation Division, New Capital, defendant No. 4 is the Managing Director and defendant No. 6 is the Chairman of the Orissa Lift Irrigation Corporation. All the above referred defendants Nos. 1 to 6 have jointly filed a written statement, the substance of which can be briefly summarised as follows : Defendant No. 2 has placed the purchase order with the plaintiffs by his letter No. 812 dated 5-3-1973 for supply of the goods, indicating that the goods mentioned therein should be supplied before 24-3-1973, failing which the plaintiffs would be liable to pay penalty as per the terms of the agreement. The plaintiffs have defaulted in making the timely delivery of the goods. The plaintiffs have so far not delivered cables worth Rs. 75,975.25 (valued at the rate of the purchase order). As there was some delay in the delivery of the goods, under clause 2 of the agreement the plaintiffs were liable to pay the penalty. As the quantity of goods supplied by the plaintiffs was less than the goods ordered for, the defendants suffered a loss to the extent of about rupees one lakh due to such short supply, due to the rise in prices in the meanwhile. The plaintiffs' claim for higher rates to the extent of 4 per cent at the initial stage and subsequently to the extent of 14 per cent on account of the alleged rise in prices, is contrary to the terms of the purchase order and the agreement and, therefore, such a claim is not sustainable in law. Considering the representation of the plaintiffs, the defendants took a liberal view in the matter. The purchase order was amended on 20-5-1974 limiting the quantity of the materials to the quantity actually supplied. The supply of goods (four types if cables of different sizes) under the purchase order was a package deal. With a view to accommodate the plaintiffs, the defendants, while agreeing to condone the short supply, proposed to pay for the goods already supplied at the contractual rate. But in the meanwhile the plaintiffs rushed to the Court and filed the suit with false allegations and the same is, therefore, not maintainable and is liable to be dismissed.