UTKAL AUTOMOBILES P LTD Vs. BIRAJA PRASAD ROY

JUDGEMENT

(1.) Plaintiff filed the suit for recovery of damages of Rs. 9,300/- from the defendant at the rate of Rs. 300/- per month from 24-12-1961 to 20-7-1964 for non-supply of a truck in time. Plaintiffs case may be stated in brief. He is 'A' Class contractor executing works under the State Government and was in urgent need of 2 trucks for his business. Defendant is the dealer of Tata Mercedes Benz trucks (hereinafter called the TMB trucks). Plaintiff placed orders with defendant for supply of 2 TMB trucks of 1.312/42-165 wheel base model and payment was to be made on delivery of the truck. Defendant acknowledged receipt of plaintiff's anplication and registered his name allotting him serial number C-195 and C-196. Plaintiff also deposited Rs. 2,000/- for each truck in the State Bank of India as guarantee. Plaintiff moved the State Government through Chief Engineer for delivery of the trucks to him on priority basis. Government sanctioned delivery on priority basis and the manufacturer Tata Engineering and Locomotive Company (hereinafter described as TELCO) was informed accordingly. TELCO also intimated that plaintiff would be supplied with 2 TMB trucks on special priority. Defendant supplied one truck to plaintiff, but subsequently did not supply the other truck in spite of several correspondence. Thereafter defendant asked plaintiff if he was willing to accept the alternative model. Plaintiff agreed to it and asked if that could be supplied within 30 days from the date of receipt of plaintiff's letter, but defendant remained silent. No truck was supplied to plaintiff even though notice was sent through his Advocate. Plaintiff claimed damages as defendant knowingly and deliberately defaulted in complying his part of the contract.

(2.) Defendant's case is as follows :--There was no completed contract between the parties for supply for trucks. One truck was supplied on priority basis, but no second vehicle was received by defendant from the manufacturer. Thereafter National emergency was declared and under the Commercial Vehicles (Distribution and Sale) Control Order, 1963 distribution of Vehicles was banned. According to this order plaintiff was not entitled to any preference and as the serial number of plaintiff was changed, no Vehicle was supplied of any model within the period. The bank guarantee of plaintiff expired on 20-7-1964. (The date on which the suit was instituted) and the plaintiff did not renew the guarantee and hence the defendant is not responsible for any breach of contract nor is liable to pay any damages.

(3.) The trial court held that there was no contract for sale of 2 TMB trucks to plaintiff and dismissed the suit. Plaintiff appealed against this decision. The learned Single Judge held that the defendant is bound by the contract to supply of 2 TMB trucks to the plaintiff. Defendant was in possession of the second truck for supply to the plaintiff and did not supply the same. As against this decision defendant has come up in appeal.