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Judgment
N. Kumar, J.
This is a defendant''s Regular First Appeal against the judgment and decree of the Trial Court decreeing the suit of the plaintiff for recovery of money with interest at 16%p.a.
For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
The plaintiff M/s. Antolini Luigi and SPA is a company registered in Italy. The plaintiff is in the business of importing granite blocks from India and other countries and the same are sold and marketed in Italy and other countries. The plaintiff has been purchasing the granite blocks of different colours, sizes and dimensions and paying the amount to the Indian suppliers in the form of US Dollars. The plaintiff has been importing granite blocks such as Red Multi colours, North Red, Hassan Green, Shivakashi Yellow, Kuppam Green, Galaxi Block, Indian Juparna Pink, etc. The 2nd defendant is the Managing Director of the 1st defendant. They have number of quarries and they are in a position to supply granite blocks as per the specifications of the plaintiff. The plaintiff made an advance payment of 1,00,000/- USD for supply of North Red granite blocks and colour granite blocks. The defendant expressed their readiness and willingness to supply the same. The defendants in terms of the agreement supplied North Red colour granite blocks at 870 USD for the big size granite blocks and 820 USD for small size granite blocks and entered into an agreement dated 07.09.1995. Further, after receipt of 1,00,000 USD from the plaintiff, the defendants did not perform their part of the contract. They committed default. The defendant was due in a sum of 755945 USD and after 12.07.2002, no supplies were made by the defendant to the plaintiff and the balance amount payable was 24052 USD and 17 cents. The plaintiff issued a legal notice on 01.11.2002 to the defendants to supply the granite blocks of Hassan Green, Shivakasi yellow, Kuppam green, Galaxy Block, Indian Juparana at the current market price to complete the dues of 24052 USD. After receipt of the legal notice, the defendant called upon the plaintiff to depute a responsible person to come to India to inspect the granite blocks. The plaintiff sent a reply on 19.02.2003 deputing Mr. Enrico Pere from the Head Office of the plaintiff company stating that he would be deputed in Bangalore in the first or second week of March 2003 and instructed the defendant to communicate the price for the supply of granite blocks. The letters were exchanged between the parties. The defendants did not meet the plaintiffs representative and therefore, the said supply of granite had not materialized. Therefore, they were constrained to issue one more letter calling upon the defendants to supply granite and in the alternative to refund the said amount. When the said demand was not complied with, they had no option except to file the suit for recovery of money.
The defendants filed their written statement. They did not dispute the receipt of balance amount due but, their specific contention was, in terms of agreement, plaintiff is not entitled to refund of any money. On the contrary, it was specifically agreed that the plaintiff has to receive the granite to be supplied by the defendants. Though the defendants were not able to supply the red granite block, they were ready and willing to supply other types of granite blocks. Plaintiff did not receive the same and therefore, the plaintiff is not entitled for any amount.
On the aforesaid pleadings, the trial Court framed the following issues:
"1. Was the amount of USD 100000 paid by the plaintiff to the defendant with the assurance of placing sufficient orders for supply of ''North Red'' type granite, and with a view to enable the defendant to develop the quarry?
Was it agreed between the parties that in the event of decline in the demand for ''North Red'' type granite in plaintiffs market, the amount of advance could be cleared by defendants through supply of other materials available through ''Stona Group'' of Granite Companies?
Is plaintiff entitled for refund of advance?
Is defendants liable to pay interest on the said amount of 24052 USD (Rs. 11,06,400/-) at 24% p.a.?
What decree or order?"
Plaintiff in order to substantiate its claim, examined one Sri Srinivasan as PW.1 and produced fourteen documents and marked them as Ex. P1 to P14. On behalf of defendant, one Sri G.V. Vyas was examined as DW.1 and produced seventeen documents which were marked as Ex. D1 to D17.
The trial Court, on appreciation of oral and documentary evidence on record held, the plaintiff has established payment of USD 10000 for supply of ''North Red'' type granite and the plaintiff has also established that in the event of defendant not able to supply ''North Red'' type Granite, they could clear outstanding amount by supplying any other material available under Stona group granite blocks but, it held that the defendants did not supply other granite blocks, therefore, they are liable to repay the amount of 24052 US dollar. In so far as rate of interest is concerned, it was held only 6% interest per annum as against 24% claimed by the plaintiff from the date of delivery till realization which in other words, claim of interest prior to date of suit was negatived. Aggrieved by the said Judgment and decree, the defendants are in appeal.
The learned counsel for the defendants, assailing the impugned and decree contended that the clause in the agreement did not provide for refund of money. He further submits, if the defendants are not able to supply the specified granite, the balance amount has to be discharged by supply of other type of granite. The defendants were ready and willing to supply other granite which plaintiff did not accept. The trial Court, on appreciation of material on record has erred in decreeing suit of the plaintiff. Therefore, he submits, a case for interference is made out.
In the light of the aforesaid pleadings of the parties and the argument canvassed before us, the point that arises for our consideration is:
"Whether the plaintiff was entitled to refund of the balance amount or was he entitled to only supply of granite in discharge of the said amount?"
Reliance is placed on the following clause in Ex. P2 the agreement between the parties:
"In case of NORTH RED Importers market demand failing off or if the Exporters should not be able to supply to the Importers the agreed quantities of NORTH RED dimensional granite blocks per month, the Importers will be able to ask for the restore of the balance money paid in advance and the same will recover the money paid in advance, accordingly with Exporters, by detracting US$ 250/cbm one each loading of other orders of STONA GROUP materials considering that the Exporters belong to this Group."
A perusal of aforesaid clause makes it clear, in case of North Red Importers market demand falling off or if the exporter is not be able to supply to the importer agreed quantities of North Red dimensional granite blocks per month, the importers will be able to ask for restoration of the balance money paid in advance.
Therefore, the language employed in the said provision is very clear and there is no ambiguity. The plaintiff is entitled to seek restoration of the balance amount paid in advance towards supply of North Red Granite. However, the same clause also confers a right to the plaintiff to recover the said money paid in advance by detracting US Dollar 25/cbm one each loading of other orders of STONA GROUP materials considering that the Exporters belong to this Group. Thus, option was there either to receive the advance amount or to place orders for the other materials.
Admittedly, payment of 1,00,000 US$ as advance is not in dispute. On receipt of said amount, the defendants have made exports and the balance amount for which exports were not made is only 24052 USD$ and 17 cents. In fact, in terms of the agreement, the plaintiff was ready and willing to receive the granite blocks of other colours, the defendants who called upon the representative of the plaintiff company to be available but, unfortunately, the meeting did not take place. Each one is blaming the other for not meeting.
It is only under those circumstances, the plaintiff had no alternative but to seek for restoration of the balance paid as advance. Therefore, we do not see any substance in the contention of the defendants. The trial Court was justified in decreeing the suit of the plaintiff directing the defendants to pay 24052 US dollars which is equivalent to Indian Rs. 11,06,400/- to the plaintiff. In fact, claim for interest at 24% per annum is negatived rightly by the trial Court as there was no agreement between the parties to pay interest at a particular date and has awarded interest at 6%.p.a. from the date of suit i.e. 27.7.2004 till realization of the entire amount.
There is no merit in this appeal. Accordingly, it is dismissed at the stage of admission.
It is submitted that the appellant has deposited a sum of Rs. 7.5 lakhs at the time of filing of this appeal before this Court. The Registry of this Court shall transmit the said amount to the trial Court for being paid to the plaintiff.