RAJASTHAN STATE ELECTRICITY BOARD Vs. INDIAN AGGRESSIVE INDUSTRY

JUDGEMENT

(1.) This S.B. Civil First Appeal under section 96 of the Code of Civil Procedure has been filed against the judgment and decree dated 06.10.1989 passed by the learned District Judge, Banswara in Civil Original Suit No.13/1981.

(2.) Briefly stated, the appellant-plaintiff filed a suit against the respondent-defendant for recovery of Rs. 31.127.51p. on the ground that the appellant-plaintiff, by order dated 21.08.1979 ordered for supply of wooden sleepers as per the details given in the para No.4 of the plaint. The goods were required to be supplied at Banswara by rail or road. The payment was to be made as per the specification given in the order on the condition of supply of goods in a good condition at Banswara. The goods were to be dispatched after the inspection of the authorised representative of the appellant-plaintiff. The representative of the appellant-plaintiff, on 21.12.1979 to 29.12.1979, inspected the goods and instructed for dispatch of the goods on 29.12.1979. The details of goods inspected were given in para No.6 of the plaint. On 30.01.1980, the goods were dispatched through RR No.A878204, which were received by the appellant-plaintiff on 12.04.1980 and 18.04.1980 through railway out agency, Banswara. The appellant-plaintiff had to pay Rs. 400/- as under charges to the out agency. On receipt of the wooden sleepers, the same were inspected and counted again. The measurement of the wooden sleepers were found as per the specification and out of 200, only 55 sleepers were found to be as per the specification and 145 sleepers were not found to be as per the specification. In the sleepers, there were cracks, gathans, and they were infected by termites and there were no marks on the sleepers, which was put by the representative of the appellant-plaintiff on the goods inspected. The appellant-plaintiff informed the respondent-defendant vide letter dated 13.05.1980 about the rejection of 145 wooden sleepers, which were not found to be as per the specification and was asked to supply other fresh sleepers. But, the respondent-defendant did not comply with the terms of the agreement. The respondent-defendant received 90% of the cost amounting to Rs. 34,128/- + C.S.T. Rs. 1516.80p. totaling to Rs. 34,644.80p. The appellant-plaintiff has also to pay Rs. 250/- for handling charges and Rs. 400/- for under charges. Thus, the appellant-plaintiff had to pay total amount of Rs. 36294.80p. It was also pleaded that out of the sleepers sent by the respondent-defendant, 55 sleepers were found to be as per the specification and the cost of which was Rs. 8,730.72p. + Rs. 349.23 as C.S.T. and Rs. 68.75p. for transportation totaling to Rs. 9148.70p. Thus, the appellant-plaintiff was entitled to recover the balance amount and claimed storage charges for defective sleepers amounting to Rs. 1809.73p. And loss of interest amounting to Rs. 2,171.68p., in total Rs. 31,127.51p.

(3.) The respondent-defendant filed written statement along with counter claim and admitted that the goods were supplied as per the specification after the inspection of goods by the representative of the appellant-plaintiff and stated that the representative of the appellant-plaintiff inspected the goods on 29.12.1979 and found the goods in good condition as per the specification and measured 200 sleepers and the goods were sent to the Railway Station by the representative of the appellant-plaintiff. The goods were not booked by the Railway, then the representative of the appellant-plaintiff instructed for sending the goods through goods transport. It was contended that it is wrong to say that 145 sleepers were not found to be as per the specification and cracks and gathans were there on goods and sleepers were infected by termites. The goods were supplied as per the specifications and all the goods were received by the appellant-plaintiff and paid 90% of the amount of goods. There was no hidden defect in the goods.