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Judgment
Indermeet Kaur, J.—Plaintiff is running the business of supplying tin plates and tree guards etc. under the name and style of Bansal General Store as its sole proprietor. The defendant is the conservator of the forest department entrusted with the responsibility of taking care of forests and the green belt areas in the Capital of Delhi. They require flat iron tree guards for their department to protect their trees and plants. On 16.3.1999, plaintiff made an offer to the defendant for supply of flat iron tree guards as per their requirements and specification. The department vide purchase order No. F.4(75)/ACF/Stores/99/7512 dated 31.3.1999 placed an order for 4,000 M.S. flat iron tree guards on the plaintiff valued at Rs. 21,33,600/-. This supply as per the purchase order was to be effected within thirty days and as per the specification contained in the document @ Rs. 498.50 for each tree guard. Sales tax was exclusive.
In terms of the aforestated purchase order the entire consignment of 4,000 flat iron tree guards was supplied by the plaintiff to the defendant vide three separate consignments.
The first consignment of 2,000 tree guards as per specification was supplied by the plaintiff against the bill no. 6809 on 27.4.1999 on which endorsement of acceptance of delivery was made by the defendant; the value of the consignment was Rs. 10,66,790/-.
The second consignment of 1550 tree guards as per specification was supplied by the plaintiff against bill no. 6813 on 29.4.1999 on which endorsement of acceptance of delivery was made by the defendant; the value of the consignment was Rs. 8,27,762.25.
The third consignment of 450 tree guards as per specification was supplied by the plaintiff against bill no. 6815 on 2.5.1999 on which endorsement of acceptance of delivery was made by the defendant; the value of the consignment was Rs. 2,40,027.75.
Plaintiff had performed his part of the contract in terms of the purchase order dated 31.3.1999. However, his payment was not forthcoming. On earlier dates also i.e.4.3.1999,16.3.1999 supply had been made by the plaintiff to the defendant''s department of tree guards.
On the instructions of an officer of the defendant''s department, the plaintiff in order to get his payment realized in good faith and under a bonafide belief gave a request letter dated 6.7.1999 to the defendant to realize his payment, in. this letter the plaintiff offered that he is ready to accept the payment after making necessary adjustments on account or deficiency, if any, in the supply of tree guards made by him; plaintiff also offered to the defendant his willingness to supply more tree guards in the ratio of the calculation of deficiency, if any.
In spite of this letter dated 6.7.1999 defendant failed to make the payment of the supply made by the plaintiff. Legal notice dated 27.4.2000 was sent to the defendant calling upon him, to make the outstanding payment of Rs. 21,33,579/- for the supplier made against purchase order dated 31.3.1999. No reply was sent to the legal notice.
Decree in the sum of Rs. 25,81,635/- has been prayed for which includes the principal amount of Rs. 21,33,579/-; a sum of Rs. 4,48,056/ - as interest @ 18% per annum on the principal amount for the period 1.6.1999 to 31.7.2000. Future interest and costs have also been claimed.
In the written statement, the defendant has taken a preliminary objection that the matter be referred to arbitration but thereafter the same was not pressed. The defendant''s department had inspected the supply of the tree guards made to the defendant on 4.6.1999 and several defects were observed in the said supply. The said defects related to the length, width and thickness of the tree guards; painting was not found up to the mark and stripes were found to be welded with circular rings. This report is dated 4.6.1999. The matter was referred to the Vigilance Department and thereafter the government constituted a committee i.e. Bhalla Committee to look into these irregularities of the supply which had been made. The report of the Bhalla Committee dated 29.11.1999 substantiated the inspection of 4.6.1999 which had pointed out these irregularities in the supply made by the plaintiff to the defendant. It was recommended that no payment should be released in terms of the purchase order dated 31.3.1999 as the supplies were substandard and defective.
It is submitted that the plaintiff in his letter dated 6.7.1999 has himself admitted that there was some minor shortage in the length of the tree guards; they have admitted their mistake and have stated that the supply was made only because of the urgency of the time period; the deficiency could be made up either by the plaintiff supplying more tree guards in the ratio of the calculation of the deficiency or the department may deduct the amount of money in the ratio of the aforestated calculation.
On merits, it is admitted that in terms of the bills dated 27.4.1999, 29.4.1999 and 2,5,1999 supplies had been made of 2,000, 1,550 and 450 tree guards by the plaintiff to the defendant. It is, however, denied that this was an acceptance of the consignment. It is stated that the material supplied by the plaintiff was not as per the specification and was not supplied within the stipulated period of 30 days from 31.3.1999. The entire consignment stood rejected as such the question of payment did not arise.
It is pointed out that in terms of the inspection carried out by the purchase committee of the department on 4.6.1999 these irregularities had been highlighted by the inspection committee. Thereafter the Bhalla Committee which was constituted by the government had made physical verification on 13.9.1999 where also the poor quality of the consignment had been noted. It was for the aforestated reasons that the payments were not released to the plaintiff.
Replication has been filed by plaintiff reiterating the averments made the in plaint and denying the submissions and the defence as set up by defendant. It is stated that the letter dated 6.7.1999 had been sent by the plaintiff to the defendant under a bonafide impression that this was the only way that he could get his payments; there was no admission in this letter that the material supplied by the plaintiff to the defendant was sub standard or deficient; this explanation has been furnished to the department only to get the payment released.
On the pleadings of the parties, on 5.7.2006. the following issues were framed:-
Whether the suit does not disclose any cause of action? OPD
Whether the goods supplied by the plaintiff were not as per specification or were of sub-standard quality? If so, to what effect? OPD
Whether the plaintiff is entitled to the suit amount? OPP
Whether the plaintiff is entitled to interest thereon? if so, for what period and at what rate? OPD
Relief.
The plaintiff in support of his case has examined himself as PW-1. The defendant in his defence has produced five witnesses. DW-1 Prabhat Tyagi, Deputy Conservator was the chairman of the purchase committee who had ordered the inspection of the material on 4.6.1999. D.W.2 Satvir Singh, was the member of the purchase committee who had carried out the inspection on behalf of the department on 4.6.1999. Tilak Chand, the Assistant Conservator of Forest, who had accepted these consignments from the plaintiff on the three dates on which the consignments were supplied i.e. 27.4.1999, 29.4.1999 and 2.5.1999 has been examined as DW-3; DW-4 M. S .Negi IFS Conservator of Forest who was a member of the Bhalla Committee was also a party to the inspection of the disputed material which was carried out under the aegis of the Bhalla Committee dated 10.9.1999 Ex.DW-4/X. Sh. Alok Singh, Inspector of CBI has been examined as DW-5; he had vide his report dated 24.1.2001 Ex.DW-5/1 reiterated the shortcomings in the supply of the material made by the plaintiff to the defendant.
Arguments have been heard and the record has been perused. Findings on the issues are as follows:-
ISSUE NO. 1:-
The onus to discharge this issue was on the defendant. It is stated that the plaint does not disclose any cause of action as the plaintiff has himself in his letter dated 6.7.1999 admitted that there were shortcomings in the material i.e. the tree guards which had been supplied by the plaintiff to the defendant; this admission of the plaintiff does not entitle him to claim any amount.
''Cause of action'' consists of a bundle of facts which give cause to enforce the legal injury for redress in a court of law. The cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. The cause of action has to be deciphered from the averments which are made in the plaint. Para no. 21 has described the cause of action; the cause of action in terms of these averments arose when in spite of the supplies having been made by the plaintiff to the defendant in terms of the purchase order dated 31.3.1999 the defendant did not make the payment against three bills raised against the defendant i.e. bill no. 6809 dated 31.3.1999, bill no. 6813 dated 27.4.1999 and bill no. 6815 dated 2.5.1999. In spite of legal notice dated 27.4.2000 by the plaintiff to the defendant payments were still not realized.
Plaint clearly makes out a cause of action. The defendant has not been able to discharge this onus.
Issue no. 1 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2:-
Purchase order dated 31.3.1999 had been placed upon the plaintiff by the defendant. This purchase order is Ex.P-5. As per this document, the defendant through the Assistant Conservator of Forest Prabhat Tyagi DW-1 had placed an order of the supply of 4000 number of MS flat iron tree guards upon the plaintiff; terms and conditions are contained in the said documents. The specifications recite the height of the tree guards to be supplied; they should be of 60 cm. diameter with a 2 meter height of 4 numbers 25 mm. x 6 mm. and 8 numbers 25 mm. x 3 mm. vertical M.S. Flat Iron rings in two reverted to 3 numbers 25 mm. x 6 mm.. The rate has been specified at Rs.498.50 per tree guard; sales tax is extra.
Pursuant to this purchase order three consignments of tree guards had been supplied by the plaintiff to the defendant. This is evidenced from the bills Exs.P-2 to P-4. Ex.P-2 is bill no. 6809 dated 27.4.1999 wherein a supply of 2,000 number of tree guards had been made by the plaintiff to the defendant. Bill is for Rs. 10,66,790/-; at point A on the back page of the said document there is an endorsement; it has been signed by the Range Officer Tilak Chand DW-3. At point A, it is stated that "tree guards had been received as per specification and good condition". Exs.P-3 and P-4 dated 29.4.1999 and 2.5.1999 are for the supply of 1550 tree guards and 450 tree guards. Ex.P-3 is a bill for an amount of Rs. 8,27,762.25 and Ex.P-4 is a bill of Rs. 2,40,027.75; on the back page of Exs.P-3 and P-4 there are similar endorsements on behalf of the defendant''s department showing that the said consignments had been accepted by the Range Officer DW-3 with the same remark "tree guards had been received as per specification and good condition" These are admitted documents.
Defendant has submitted that these tree guards which were received by the Range Officer were only delivered; the goods were yet to be inspected; the acceptance of the goods would have followed only after the necessary inspection. Inspection of these tree guards was conducted on 4.6.1999. Prabhat Tyagi DW-1 was the Chairman of the purchase committee comprising of three persons including Satbir Singh DW-2. On oath DW-1 has stated that this committee had inspected these three consignments consisting of the 4,000 tree guards; due notice of this inspection had been given vide letter dated 3.6.1999 Ex.DW-1/1 to the plaintiff. On inspection, these tree guards were not found up to the standard and the shortcomings with regard to the length, width, thickness of the tree guards had been noted in the inspection report Ex.DW-1/2. DW-1 has deposed that the matter was then referred to the Vigilance Committee and a C.B.I, inquiry was also held. Bhalla Committee had also been constituted by the Chief Secretary of the Delhi to look into these irregularities; the report of the Bhalla Committee dated 29.11.1999 Ex.DW-4/Y had also noted these shortcomings.
In his cross-examination, DW-1 has admitted that a reasonable time is given in the notice to the supplier, depending on the each case, so that it is possible for the supplier to be present at the time of inspection; during any such inspection where supplier is present efforts are made to prepare a document to show that inspection of the articles was carried out in the presence of the supplier. DW-1 has further stated that the presence of Mr. Bansal during this inspection dated 4.6.1999 has been recorded in the inspection note Ex.DW-1/1 but it does not bear his signature or name; DW-1 has stated that Mr. Arunesh Bansal and his brother were present at the time of this inspection.
DW-2 Satbir Singh, Assistant Conservator of Forest has identified the signature of DW-1 at point A on the letter dated 3.6.1999 Ex.DW-1/1 which is a letter notifying the plaintiff that an inspection is to be carried on 4.6.1999. DW-1 has deposed that vide this letter the plaintiff had been informed in advance about this inspection which would be conducted on 4.6.1999. In his cross-examination DW-2 has stated that he does not know by which mode Ex.DW-1/1 was dispatched to the plaintiff; he does not know whether this letter was served on the plaintiff or not. He has denied the suggestion that the inspection report dated 4.6.1999 Ex.DW-1/2 is a fabricated document. He admitted that in this report it has not been mentioned that the material supplied by the plaintiff is of substandard quality. He has further admitted that there was no identification mark on the tree guards supplied by the plaintiff. Defendant has also produced his dispatch register for period 5.4.1999 to 5.8.1999 showing an entry at point A that on 3.6.1999 a letter had been dispatched to the plaintiff i.e. M/s Bansal General Store. This dispatch register has not been proved in evidence.
These were two witnesses produced by the defendant to substantiate his submission that the date of inspection of 4.6.1999 had been duly intimated to the plaintiff vide letter dated 3.6.1999 Ex.DW-1/1.
Ex.DW-1/1 is this letter dated 3.6.1999. A copy of this letter has been addressed to Satvir Singh DW-2 as also to Tilak Chand DW-3. DW-3 is totally silent on this aspect; he has not whispered a word in his affidavit that any intimation had been sent to the plaintiff informing him of the date of inspection of 4.6.1999. DW-1 has admitted that a notice of the reasonable time is given; this is admittedly not so; inspection was held on 04.6.1999 and even as per the averments of the defendant this notice had been dispatched to the plaintiff on 3.6.1999. DW-1 has also admitted that a document about the presence of the supplier at the time of the inspection is normally prepared. The only document to this effect is the inspection report Ex.DW-1/2. Ex.DW-1/2 is a typed written document and there is an overwriting in ball pen that the inspection has been carried out in the presence of the supplier; admittedly this line has been added later on and did not find mention in the first type written script. DW-1/2 also does not contain any signature of the plaintiff mentioning his presence at the spot. In his cross-examination DW-2 has stated that on behalf of the supplier Mr. Bansal was present at the spot; this is contrary to the submission of DW-1 who in his cross-examination stated that from the side of the supplier the plaintiff Mr. Arunesh Bansal and his brother were both present. DW-2 has further stated that he cannot say if Ex.DW-1/1 was dispatched to the plaintiff or not. The dispatch register which has been placed on record has not been proved.
The plaintiff PW-1 has denied that he had received any notice about this inspection. He has categorically on oath deposed that the report of the purchase committee is not binding as this inspection was never done in their presence; it cannot be said as to which material was inspected by this purchase committee as the defendant had placed orders for supply of similar goods to a number of suppliers.
From this evidence which has come on record, it is clear that the defendant has failed to discharge the onus that prior intimation of the inspection of 4.6.1999 had been given by the defendant to the plaintiff; document to this effect is normally always prepared as per DW-1 but there is no such document in this case; presence of DW-1 in Ex.DW-1/2 has been hand written and is clearly an afterthought; there is no explanation as to why the presence of the supplier was not noted in the typed written script; if the plaintiff was present there is no reason as to why this inspection report Ex.DW-1/2 was not even signed by him; DW-1 has also admitted that a comfortable time period is given to the parties to be present for inspection; this document was dispatched on 3.6.1999 from the office of the defendant at Kamla Nehru Ridge Road to the address of the plaintiff which is at Main Bazar Subzi Mandi; inspection was to be held on following day i.e. 4.6.1999; by no stretch of imagination can it be said that this was a comfortable notice time. The prior intimation of this inspection to the plaintiff has thus not been proved by the defendant.
DW-1 in his cross-examination has admitted that there was no mark of the plaintiff on the tree guards supplied. To the same effect is the admission of the DW-2 who has also stated that there was no identification mark on the tree guards supplied by the plaintiff. DW-3 has in his cross-examination admitted that as per the directions of the department he used to receive material supplied by other persons also. In this scenario, the submission of the learned counsel for the plaintiff that as to whether the material of the plaintiff was inspected at all or not or whether it was some other material inspected by the purchase committee has force; tree guards of the plaintiff had no identification mark; plaintiff was not present at the time of inspection to identify his material; what was inspected by the purchase committee on 4.6.1999 was not necessarily the material of the plaintiff. Whether this substandard material was the material of the plaintiff or not has not been established. This inspection report Ex.DW-1/2 is not binding on the plaintiff.
Defendant had carried out a second inspection of the random tree guards picked up of the plaintiff on 10.6.1999. DW-2 had carried out this inspection. This was pursuant to the directions of the Bhalla Committee. The Bhalla Committee had been constituted by the State Government of whom DW-4 M. S. Negi was also a member. DW-2 has on oath deposed that the physical verification of the tree guards of the plaintiff dated 10.9.1999 is Ex.DW-2/A; this document has been signed by DW-2; there is no mention about the presence of plaintiff. Random samples which were examined are Ex.DW-2/B to Ex.DW-2/K. In his cross-examination, DW-2 has stated that he cannot say whether the plaintiff was notified about the inspection of 10.9.1999 which was carried out under the direction of the Bhalla Committee.
DW-4 M. S. Negi was a member of the Bhalla Committee. Admittedly these tree guards did not have any identification mark; the plaintiff was not notified of this inspection; what was inspected by DW-2, whether it was the tree guards of the plaintiff or the tree guards of the some other supplier has not been established and this is especially noteworthy in view of the specific averments of the plaintiff on oath corroborated by the admission of DW-3 that the defendant had other suppliers as well by whom he was supplied tree guards of a similar nature. This report of 10.9.1999 is also not binding on the plaintiff.
On 13.9.1999 the Bhalla Committee had again made a physical inspection of the material supplied by the plaintiff; this report is dated 29.11.1999 Ex.DW-4/Y. On oath, DW-4 has deposed that this report had also noted the deficiencies and shortcomings in the material supplied by the plaintiff to the defendant. These variations were noted in the height, diameter and thickness of the material; this is recited in para no. 6 of the Ex.DW-4/Y. Ex.DW-1/2 which is the inspection report dated 4.6.1999 has noted that measurements are done with steel measuring tape and may have error up to 5% to 10% in the samples and in the material supplied. A perusal of the chart as contained in para no. 6 of Ex. DW-4/Y shows that the variations in the material supplied from the original samples even otherwise would fall within the range of the 5% to 10% variation.
PW-5 Alok Kumar, Inspector CBI had also submitted his report on affidavit Ex. DW-5/1 dated 24.1.2001. This was pursuant to a vigilance inquiry. Counsel for the plaintiff has drawn the attention of this Court to the last page of this report wherein the inquiry had inter alia revealed:
(i) Sample of tree guards have not been taken even though on file it was noted that the party had supplied the tree guard.
(ii) Materials supplied by the firm was substandard and did not conform to the specifications stipulated in the purchase order. Despite this the material was accepted and was certified as OK and recommendation was issued for payment.
Above said facts show serious irregularities in the matter on the part of concerned forest officials for which suitable action may be taken at the end of the department.
It is pointed out by counsel for the plaintiff and rightly so that the sample of the tree guards had not been taken; in these circumstances whether the material supplied was substandard or not or whether it conformed to the specifications cannot be certified; the report had further held that suitable action for this irregularity be taken against the officers of the department.
Defendant had admittedly not sent any communication either oral or written to the plaintiff informing him that the material supplied by him was either substandard or deficient. There were three consignments which had been delivered by the plaintiff to the defendant; dated 27.4.1999, 29.4.1999 and 2.5.1999. These were in terms of the purchase order dated 31.3.1999. No document has been placed on record by the defendant to show that he had ever communicated to the plaintiff that this supply was lacking or was not as per the specifications.
Counsel for the plaintiff has heavily relied upon the letter dated 6.7.1999 addressed by the plaintiff to the defendant Ex.D-5 wherein the plaintiff had admitted that there are shortfalls in the material supplied by him to the defendant. It is pointed by counsel for defendant that this is an admitted document; plaintiff has himself admitted that there were shortcomings in his material that is why he had given an alternate option to the department either to supply further tree guards in lieu of the deficiency or the department may deduct the necessary amount from his dues; this admission of the plaintiff does not now entitle him to claim any amount from the defendant.
This document Ex.D-5 dated 6.7.1999 has been perused. It had been written two months four days after last supply had been made by the plaintiff to the defendant. Contention of the plaintiff is that in spite of repeated reminders the defendant was not paying his dues and at the request of an officer of the defendant the plaintiff had written this letter in order to get his payment released. A perusal of the document shows that the plaintiff has stated that there is some minor shortages in the length of the tree guards which were supplied by the plaintiff to the defendant; such a mistake had never been committed earlier; the material was supplied in urgency of time period; the department has never given any hint of any such mistake; permission be granted to rectify the same by supply of more tree guards in the ratio of the calculation under specification on pro-rata basis or the department should deduct the amount of money in ratio of calculation which is sought under specification.
This letter by no stretch of imagination can be said to be an admission by the plaintiff that the entire supply of goods which had been made by him to the department had fallen short of the specifications: it only speaks of some minor shortage in the length of the tree guards which could be rectified.
This letter has admittedly been received by the defendant and has been relied upon by department as their most precious document. However, no reply has been given by the defendant to this letter. Further it is also not the case of the defendant that he had even orally informed the plaintiff that his material was defective; nor were the legitimate dues of the plaintiff released to him. In these circumstances, on 27.4.2000 the plaintiff was constrained to issue a legal notice. No reply was given to this notice either. The lackadaisical and negligent attitude of the department continued.
DW-3 Tilak Chand was the ranger who had accepted these consignments. He has so stated on oath. In his cross-examination, he has admitted that he had taken delivery of these tree guards on a telephonic call received by him from the headquarters asking him to take this delivery; he has also admitted that back side of the Ex.P-2 to Ex.P-4 had been signed by him at points A, B and C respectively. Points A, B and C on Ex.P-2 to Ex.P-4 respectively reflect signatures of DW-3; they are endorsements of acceptance of these tree guards of the three consignments dated 27.4.1999, 29.4.1999 and 2.5.1999 with a further endorsement that tree guards had been received as per specification and in a good condition.
Plaintiff has appeared in the witness box as PW-1. He has categorically deposed that the delivery of the consignments was accepted after verification and inspection report regarding specification, quality and quantity of the tree guards and the same was recorded in the measurement book/stock register of the defendant. The entire material supplied was as per specification and the delivery of the entire quantity was accepted by defendant without any objection or protest; at no point of time the defendant ever pointed out any defect or rejected any part of consignment of tree guards supplied by the plaintiff; in good faith and under bonafide belief to get his payment released a request letter dated 6.7.1999 Ex.D-5 had been written to the defendant. Even at this point of time defendant never pointed out or brought to their notice any deficiency of any nature in the tree guards supplied to them; no inspection of the material was conducted in their presence; the report of the purchase committee, Bhalla Committee and CBI are not binding; no notice of these inspections was given; what was the material that was inspected is not known to the plaintiff.
In his cross-examination, PW-1 has stated that DW-3 had tested the quality of the tree guards when he took the delivery of the said consignment. DW-3 has also admitted about the receipt of these consignments.
Section 42 of the Sale of Goods Act (hereinafter referred to as the said Act) reads as follows:-
Acceptance- The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.
It is clear that the acceptance of the goods is complete either when the buyer intimates to the seller that he has accepted them or when the goods have been delivered to them and he does not take any action qua them or after a lapse of reasonable time he retains goods without intimating the seller that he has rejected them.
It is clear that in this case the defendant had accepted the goods without any demur or protest; he had at no point of time ever intimated to the plaintiff that he was not satisfied with the consignments which were supplied to him. u/s 43 of the said Act it is not necessary for the buyer to return the rejected goods and it is sufficient if he intimates to the seller that he has refused to accept the same. No such intimation was given by the defendant to the plaintiff at any point of time. u/s 41(2) of the said Act a reasonable opportunity on request is afforded to the buyer to examine the goods for the purpose of ascertaining whether they are in conformity with the contract. In the instant case the buyer had sufficient time to examine the goods, if he was dissatisfied with the consignment, the last consignment which was received by him on 2.5.1999 he had ample opportunity to intimate the plaintiff about the same but he had not exercised this option. In fact till date he had never intimated the defendant that he was dissatisfied with the goods which were sent to him. Defendant has failed to establish that the goods which were supplied to him were of substandard quality or were not as per the specification.
Issue no. 2 is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 3:-
Plaintiff in terms of the purchase order dated 31.3.1999 is clearly entitled to the amount claimed by him. The purchase orders Ex.P-2 to Ex.P-5 dated 27.4.1999, 29.4.1999 and 2.5.1999 in terms of the three bills for amount of Rs. 10,66,790/-, Rs. 8,27,762.25 and Rs. 2,40,027.75 are due and payable to him. These are in terms of bill nos. 6809, 6813 and 6815 respectively. The principal amount is Rs. 21,33,579/-. Interest claimed is Rs. 4,48,056/- which is interest calculated @ 18% per annum from 1.6.1999 up to 31.7.2000 i.e. the date of filing of the suit.
In M/s KLG Systel Ltd. Vs. M/s Fujitsu ICIM Ltd., , it has been held by a Bench of this Court that where intimation of the substandard quality of the goods was intimated after one year by the buyer to the seller it was not a valid defence entitling the buyer for any leave to defend the suit; the suit of the plaintiff stood decreed.
In Lohmann Rausher Gmbh Vs. Medisphere Marketing Pvt. Ltd., , it has been held by another Bench of this Court that where there was a delay on the part of the defendant to intimate the rejection of the goods; this was no defence and leave to defend was not granted.
In Jain Mills and Electrical Stores Vs. State of Orissa and Others, , it has been held that where the purchaser had not intimated the rejection of the goods but had retained them; there was an acceptance of the goods.
In Om Enterprises Vs. State of Bihar and Others, , it has been held that once the goods are accepted there is a simultaneous obligation to make the payment; for the services rendered are not gratuitous.
Plaintiff having supplied the goods to the defendant and the defendant having accepted the same, department is liable to pay the aforestated amount i.s. Rs. 25,81,635/- to the plaintiff.
Issue no. 3 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 4:-
Plaintiff has claimed future interest @ 18% per annum. Discretion of this Court to grant interest is contained in Section 34 of the CPC read with Section 5 of the Interest Act 1978. Interest @ 9% per annum is awarded in favour of the plaintiff and against the defendant which will accrue from the date of the decree till realization.
Issue no. 4 is decided accordingly. RELIEF:
Suit of the plaintiff is decreed for Rs. 25,81,635/- with future interest @ 9% per annum from the date of decree till realization. Cost is also awarded in favour of the plaintiff. Decree sheet be drawn. File be consigned to record.