TIRUPATI RE TREADERS Vs. ATLANTIC AGENCIES

JUDGEMENT

(1.) This regular first appeal under Sec. 96 r/w Order 41 Rules 1 and 2 of CPC has been filed against the judgment and decree dtd. 6/4/1994, passed by the Additional District and Sessions Judge, Jaipur City, Jaipur in Civil Suit No.34/1993, whereby the suit of the plaintiff has been dismissed.

(2.) According to brief facts of the case, the plaintiff-appellant filed a civil suit against the defendant-respondent for recovery of Rs.76,100.00. It was alleged in the plaint that plaintiff firm was in need of an Air Cooled Kriloskar Power Diesel Generating Set for its business, therefore, the plaintiff firm demanded quotation of a generating set. The defendant firm issued a proforma bill for Rs.1,60,000.00 against which the plaintiff-appellant deposited a sum of Rs.15,000.00 with the defendant-firm. An acceptance letter was issued by the respondent on the same day after receiving Rs.15,000.00 as part payment of the price. Balance price was required to be paid at the time of delivery. The cost was F.O.R. at Alwar. The delivery of the generating set was to be given by the respondent immediately but the defendant-respondent did not perform its part of the agreement and meanwhile, price of the generating set started rising. The respondent failed to deliver the generating set as per the agreement, despite several oral and written reminders from the plaintiff-appellant. Hence, the suit was filed for recovery of the part payment deposited with the respondent and the difference of cost of the generating set with interest. The defendant-respondent filed written statement in which it was stated that the delivery of the goods was to be made in Jaipur and not in Alwar and the plaintiff firm did not pay the rest of the price money along with 'C' Form which was to be given at Jaipur. Therefore, the suit was not liable to be dismissed. The learned trial court framed the following issues on the basis of pleadings :-

(3.) After hearing both the parties, the learned trial court dismissed the suit filed by the plaintiff-appellant. The learned trial court held that the plaintiff was under an obligation to pay the remaining price of the generating set by 5/4/1990 and it was also the duty of the plaintiff-appellant to deliver 'C' Form after signing it, but the plaintiff had erred in the performance of this obligation. Therefore, the plaintiff-appellant was not entitled to the part payment of price, interest and the difference of cost of goods. The learned trial court also came to the conclusion that the loss caused to the defendant-respondent due to non-performance of the part of agreement by plaintiff-appellant was greater than the advance amount, therefore, plaintiff-appellant was also not entitled to receive back the advance payment deposited by them with the respondent. In view of this, the suit was dismissed. It is submitted on behalf of the plaintiff-appellant that the delivery was to be made at Alwar. There was no agreement to deliver the goods at Jaipur and the balance payment was to be made at the time of delivery which was not done by the defendant-respondent, therefore, the learned trial court has erred in dismissing the suit.