STATE OF ORISSA Vs. DURGA ENTERPRISERS JAGATSINGPUR

JUDGEMENT

(1.) Defendants are appellants. Plaintiff brought the suit for realisation of Rs. 1,30,987/- being the price of shutters manufactured by him against purchase orders Exts. 1 to 5 issued by the Executive Engineer (Defendant No. 4) taking delivery of the same from plaintiff's workshop. Plaintiff further claimed damages amounting to Rs. 15,720/at the rate of 12 per cent per annum on aforesaid sum with effect from 25-8-90 when the articles are claimed to have been made ready for delivery, till institution of the suit.

(2.) Plaintiff's case in brief was that he manufactured telescopic out-let shutters for hume pipes of various dimensions in his industrial unit and coming to know that the State of Orissa (defendant No. 1) was in need of such shutters, he submitted his quotations before the Executive Engineer, who acting on behalf of the State, placed orders between 16-7-90 and 20-7-90 for supply of 133 numbers of shutters at the price quoted by him. When Executive Engineer placed the orders, plaintiff represented to him that it may not be possible on his part to supply the shutters within the stipulated time on account of repeated load-sheddings by the Orissa State Electricity Board and he was assured that if he faced any difficulty on account of load-shedding, on his application time for supply of the shutters shall be extended. On such assurance from defendant No. 4, plaintiff started manufacturing the shutters. In course of manufacture there were frequent load-shedding. Therefore, on 28-7-90 plaintiff put in a written application to the Executive Engineer praying for extension of time, but received no reply. So then put in a second application on 10-8-90 for extension of time and received reply dated 25-8-90 to the effect that the purchase order had been cancelled. But by then the plaintiff had completed manufacture of all the 133 numbers of shutters. Thereafter the plaintiff approached the defendants several times to take delivery of the articles and make the payment, but to no effect. According to him, two other firms with whom orders were placed for supply of same type of shutters, were given extension of time and they made the supplies during the extended periods and have been paid the price but similar advantage has been denied to the plaintiff. It is specifically pleaded that time being not the essence of the contract and in view of the assurance given by the Executive Engineer, the plaintiff having manufactured the shutters and kept ready for delivery, he is entitled to a decree as prayed for.

(3.) Defendant No. 4 alone filed written statement in the suit. He contended inter alia that in the notice calling for quotation it was stated that the materials were to be supplied within 10 days from the date of issue of the supply orders and no extension of time whatsoever would be allowed. Plaintiff accepted this condition and submitted his quotation but failed to supply the shutters within the time stipulated in the purchase orders and consequently the plaintiff cannot legally claim any amount from the defendants. It is denied that the plaintiff was given any assurance that time for supply would be extended on account of load-shedding.