B. D. Agarwal, J. - (1.) THIS is plaintiff's appeal.
(2.) THE plaintiff is a registered partnership firm engaged in the business of manufacture and sale of biscuits in Kanpur under the name and style of M/s. Sind Biscuits Manufacturing Company. THE defendant no. 2 was the sole proprietor of the business run in Moradabad in the name of the Delight Engineering Works. THE defendant no. 3 is his father. Later with effect from April 11, 1966 the defendant no. 2 has constituted a partnership firm the other partners being his mother and the father's sister. On September 20, 1965 the defendant no. 2 entered into a contract with the plaintiff by exchange of letters where under the defendant no. 2 undertook to supply to the plaintiff one travelling oven 60' long x 4-1/2' wide baking chamber oil fired having automatic heat control with standard specifications. The machinery was to be insulated on all sides with three inches thick glass woo) enclosed in 1/16" sheet. The chain was to be manufactured from l"xl/4" thick m.s. flat -2-1/2 shaft and rolls on both sides. It was to be completed with its driving arrangement and electric motors etc. The defendant no. 2 had also to instal the machinery at the plaintiff's premises in Kanpur. Firing chamber was to be specially designed as per the defendants specifications. Brick work for the foundation and the laying of fire bricks in the floor was to be done by the plaintiff. Unskilled labour was to be supplied by the plaintiff during the process of erection. The delivery was to be made by the defendant no. 2 within six months from the receipt of the order dated September 20, 1965. The cost was Rs. 40,000/-; 33% being the advance. Of the advance amount a sum of Rs. 5,000/- was to be paid by the plaintiff at the time when the order was placed and the balance of Rs. 8,000/- after 1-1/2 months when the work nearly 50% had been done. For the rest the stipulation was th;.t Rs. 18,000/- were to be paid against the delivery and the remaining sum of Rs. 9000/-after installation at Kanpur to the satisfaction of the buyer. The defendant no. 3 furnished guarantee for good performance of the oven. The delivery was initially agreed to be made ex-factory Moradabad but later by mutual consent this was changed to F. O. R. Kanpur. The defendant no. 2 despatched the oven in dismantelled and unassembled condition to the plaintiff on June 29, 1966. The assembly and the erection was to take place in Kanpur. This was completed by the defendant no. 2 on July 8, 1967, plaintiff paid in all Rs. 39533.82 towards this account leaving a balance of Rs. 466.18 only. The plaintiff contends that six months commencing from September 29,1965 to the date of the contract was of the essence. The defendant no. 2 committed "breach in this behalf. Further according to the plaintiff the oven suffered from numerous defects which made this unworkable :- (a) The first furnace attached to the oven was not properly constructed and the method of giving hot air blast to six square pipes had not been properly arranged so as to deliver uniform heat to each pipe and there was no space or way to regulate the hot air during the process. No baffe walls had been provided to retain back some heat to make the heat uniform in all the pipes prior to fixing the exhaust fan and chimney. No provision had been made to clean the passages and remove the soot out of these pipes. This applied to all the three furnaces attached to the oven. (b) The automatic temperature controlling equipment complied with the oil fired furnace was defective and was not working properly. (c) 3 pyrometers along with their proper theremocouples were required to measure the temperature of the oven at three different places, so that the temperature of entire continuous furnace might be known and there may not be any likelihood of burning of the biscuits during the process. (d) The method of providing heat to six boxes was also defective and biscuits got burnt due to excessive heat. (e) The conveyor chain arrangement for carrying biscuits trays for baking inside oven was not working in proper direction. The biscuits carrying trays were being carried to the oven on the slack side of the chain and as result or which the bricks of the chain conveyor were being subjected to compression and they were interfering with the frame work of the oven barring the smooth movement. (f) The motor and gear boxes had been installed at wrong places so they hampered the proper direction of the movement of the chain conveyor. (g) The oven did not function and regulated uniform heat was not generated and the automatic fire was, not uniform, stationary, regular and under control. (h) Welding was of unapproved type. Smoke was leaking out. (i) No fire bricks had been laid in the chambers-one of the chamber had burst and the chain had broken.
(3.) DESPITE being repeatedly asked for the defendants did not rectify these defects. The suit giving rise to the appeal was instituted by the plaintiff with these allegations on September 26,1967 claiming a sum of Rs. 22490.82 as damages. The break up for this amount as specified in the plaint is as under :- (a) Business loss of profit Rs. 720275/- at the rate of 1275/- per day from 21-3-1966 to 26-9-1967 (565 days). However the plaintiff claims only Rs. 12256.82 Ps. The rest of the claim is given up. Net claim Rs. 12256.82 (b) Loss of interest at Rs. 1% on the capital investment of One Lac-fifty thousand rupees from 21-3-66 to 26-9-67 Rs. 27500/-. However, the plaintiff claims only Rs. 9000/-. The rest of the claim is given up. Net claim. ...Rs. 9000.00 (c) Consumption of oil and wastage of biscuits and repairs upto 9-9-67 Rs. 1700.18 Rs. 2295700 The entire amount claimed in this manner comes to Rs. 22,957.00. Against this the plaintiff has adjusted Rs. 466.18 due to the defendant no. 2 and the relief claimed is for the balance namely Rs. 22,490.82.;