ASIM KUMAR RAY,J. - (1.) THIS is a suit on obtaining leave under Clause 12 of the Letters Patent praying for a decree of Rs. 29,89,511.77/- along with other consequential reliefs. The plaintiff Govind Prasad Dalmia is carrying on business of manufacturing aluminum conductors under the name and style of M/s. Govind Prasad Dalmia and Sons at Deogarh, Bihar. The said business is duly registered as small scale industry with the District Industrial Centre, Deogarh, Bihar having registration No. 03/14/01806/SSI dated 26-02-1977. The defendant West Bengal State Electricity Board had floated a tender bearing specification No. P-23/87 for supply of all aluminum conductors (AAC) and aluminum conductors steel reinforced (ACSR) of diverse sizes on various terms and conditions. In response to that tender the plaintiff submitted quotation along with earnest money by way of Bank Guarantee of Rs. 25,000/- on 11 th September, 1987. The said quotation was opened on 16 th September, 1987 and it was accepted by the defendant. The defendant issued its first order on 27 th November,1987 for supply of 100 KMs of AAC Ant and 150 KMs of ACSR Weasel at the agreed rate. The plaintiff duly supplied those goods to the defendant and received payment. On 19 th January, 1987 the controlled price of aluminum was increased by the Government and the plaintiff demanded increased cost on production. On 30 th January, 1988 the defendant issued second purchase order for supply of 1500 KMs ANT conductors to be delivered within June,1988. The plaintiff did not accept the offer and sought for clarification since the order did not provide for the increase rate of price of aluminum. On 8 th February, 1988 the defendant issued a third purchase order for supply of 900 KMs ACSR RABBIT conductor to be delivered within April, 1988. In February, 1988 the plaintiff was assured by the defendant that they will give effect to the price increase. Relying on the said assurance the plaintiff offered 456.200 KMs of AAC Ant for supply to the defendant subject to increase of price. On 29 th March,1988 the plaintiff submitted two bank guarantees for Rs. 1,86,500/- each (total for Rs. 3,73,000/- ) on account of security deposit against the order dated 30.1.1988. On 14 th March, 1988 the defendant issued instruction for delivery of 456.200 KMs. of AAC Ant after taking prior inspection of the said goods. In pursuance of the said despatch instruction the plaintiff supplied 455.755 KMs of AAC Ant between 19 th March, 1988 and 23 rd March, 1988 at different places according to the instruction of the defendant. Plaintiff submitted bills for a sum of Rs. 24,42,925.60 and also submitted a claim for Rs. 1,02,859.57 towards increase cost. The defendant from time to time paid a sum of Rs. 24,31,974.40 long after the due date after deducting Rs. 10951.04 on account of alleged penalty. The defendant by its letter dated 21 st August,1990 terminated the order dated 30 th January, 1988 and forfeited the security deposit and levied penalty on account of alleged late delivery of goods and non-delivery of goods.
(2.) IN pursuance of the order dated 8 th February, 1988 the plaintiff duly offered 315.225 KMs of ACSR RABBIT to the defendant on 8 th March,1988. On 17 th March,1988 defendant issued despatch instruction for 316.135KMs of ACSR RABBIT and between 27 th March,1988 and 28 th March,1988 316.22 KMs of ACSR RABBIT were supplied by the plaintiff to the defendant at different places according to their direction. The plaintiff submitted bill of Rs. 21,14,293.57. The defendant paid only a sum of Rs. 18,33,832.34 leaving an outstanding of Rs. 2,80,461.23. Out of the said sum of Rs. 2,80,461.25 a sum of Rs. 2,54,704.05 was appropriated by the defendant towards security deposit. The defendant also deducted Rs. 25,757.18 from the bill submitted by the plaintiff in pursuance of the deliveries made against despatch instruction dated 17 th March,1988. The plaintiff could not supply goods as per the order dated 8 th February, 1988 within the stipulated time for the reasons of non-payment of the amount within the due date. Plaintiff asked for extension of the period of delivery and was verbally assured by the defendant and the plaintiff expected that time for delivery would be extended. Relying on such assurance and having legitimate expectation as aforesaid the plaintiff further offered delivery of 136.359 KMs and 185.816 KMs of ACSR RABBIT on 3 rd June,1988 and 20 th July, 1988 respectively. The despatch instruction in respect of the said office were issued by the defendant on 22 nd June,1988 and 8 th April,1988 respectively. The plaintiff accordingly made further supplies of 322.175 KMs of ACSR RABBIT during the period between 24 th June,1988 and 18 th September,1988. The plaintiff raised bill of Rs. 21,99,523.94 against the supply of 322.175 KMs of ACSR RABBIT out of which the defendant paid only Rs. 20,46,338. 28 leaving an outstanding of Rs. 1,53,185.66. On 14 th March, 1988 the defendant issued an order for supply of 400 KMs Ant and 600 KMs ACSR RABBIT deliverable within April 1988 and March 1989 respectively but the said order did not provide for the increased rate in respect of AAC ANT. The plaintiff sought for necessary clarification of the said order. On 29 th April, 1988 the defendant had expressed its unwillingness to increase the rate of AAC ANT and the plaintiff refused to accept the order of dated 14 th March,1988 in so far as the same related to supply of AAC ANT. In May 1988 the defendant assured the plaintiff that period of delivery of ACSR RABBIT would be extended and acting on such assurance on 3 rd June,1988 the plaintiff offered for delivery of 211.497 KMs of ACSR RABBIT to the defendant . The defendant issued despatch instruction on 30 th July,1988 and the plaintiff delivered 211.497 KMs of ACSR RABBIT to the defendant at different places according to their instruction. A bill of Rs. 14,38,148.57 was submitted by the defendant . The plaintiff paid Rs. 10,21,469.78 leaving an outstanding of Rs. 4,16,678.79. Out of a sum of Rs. ,16,678.79 a sum of Rs. 21,098.50 was appropriated by the defendant towards security deposit and a sum of Rs. 19956.69 was deducted towards penalty for alleged late delivery. The plaintiff finding no alternative stopped further delivery of goods under the order dated 14 th March,1988. By two letters both dated 21 st August, 1990 the defendant terminated the order dated 8 th February, 1988 and 14 th March, 1988 and expressed that security deposit will be forfeited and there will be a penalty for delivery and non-delivery of goods. 4. An aggregate sum of Rs. 9,64,136.29 is due and payable by the defendant to the plaintiff. The plaintiff is also entitled to an interest @ 23.75% per annum under the act enacted subsequent to the Ordinance No. 15 of 1992 being the interest on delayed payment to Small Scale and Ancillary Industrial Undertakings Ordinance ,1992 and/or Sales of Goods Act with monthly rests from the due date indicated above which amounts to Rs.20,25,375.48. Thus, a sum of Rs. 29,89,511.77 is due and payable by the defendant to the plaintiff inclusive of interest calculated upto 31 st July, 1993. Defendant by filing a written statement has denied and disputed all the material averments set-forth in the body of the plaint and has contended, inter alia, that by letter dated 10 th December, 1987 the plaintiff expressed his willingness to supply the subject material to the defendant at the same rate and terms and solicited for placement of further orders of the subject materials. By another letter dated 7 th December, 1987 the plaintiff approached the defendant further to permit him to supply the subject materials manufactured by their sister concern. Thereafter by letter dated 10 th Decemeber,1987 the defendant informed the plaintiff that only upon completion of the delivery of the goods covered in the order dated 27 th November, 1987 within December 1987 further order for subject material would be placed by March,1988. The order dated 30 th January, 1988 was placed on the basis of request and assurance made by the plaintiff to the defendant by its letter dated 10 th December, 1987. It is denied and disputed by the defendant that the plaintiff did not accept the order dated 30 th January, 1988 and sought for clarification. The defendant did not assure the plaintiff regarding increase of price of the subject material and it is denied and disputed that the plaintiff offered for supply of subject material on the basis of any assurance of the defendant agreeing to increase the price of the said materials. The statement covering two bank guarantees being No. 31/5 and 31/6 both dated 28 th February, 1988 of Rs. 1,86,500/- each are not admitted. The plaintiff supplied 455.755 KMs of AAC ANT but the value of the said goods amounting to Rs. 25,45,785.17 as claimed by the plaintiff has not been calculated as per the relevant terms and conditions embodied in the order dated 30 th January, 1988. The defendant is not liable to pay the increased sum of Rs. 1,02,859.57 with interest. The plaintiff claimed Rs. 10,947.04 in the concerned bill in excess of the amount to which it is entitled too. The plaintiff had accepted the order dated 30 th January, 1988 unconditionally and has duly executed the said order in part on the terms and conditions contained therein. The termination of the order dated 30 th January, 1988, forfeiture of security deposit and levy of penalty for late delivery and nondelivery of goods were in accordance with the terms and conditions of the order dated 30 th January, 1988. The defendant has duly paid to the plaintiff the amount which the plaintiff is lawfully entitled to for the price of the subject materials supplied under order dated 30 th January, 1988.
(3.) THE plaintiff has failed to complete the delivery of the goods covered in the order dated 8 th February, 1988 within the time schedule. The defendant has duly paid to the plaintiff the amount which he is lawfully entitled to for the price of the materials supplied under the said order. The defendant has deducted Rs. 2,54,704.05 from the bill amount of the plaintiff in accordance with the terms and conditions governing the said order towards security deposit as the plaintiff did not make any security deposit although required to do so. The defendant has deducted Rs. 25,757.18 from the bill of the plaintiff towards penalty as the plaintiff failed to supply the subject materials within the time schedule. It has been denied specifically that the plaintiff asked for the extension of period of delivery and the defendant gave verbal assurance that the time for delivery of the goods under order dated 8 th February, 1988 would be extended. The plaintiff made part supplies of materials covered under the order dated 14 th March, 1988. No assurance whatsoever was given by the defendant to the plaintiff about the extension of time for completing delivery of the subject materials and the plaintiff could have any legitimate expectations to that effect. The order dated 14 th March, 1988 itself contained price variation clause to which the plaintiff agreed to. It is specifically denied that the plaintiff refused to accept the order dated 14 th March, 1988 in so far as the same related to supply of AAC ANT. The defendant has paid the bill raised by the plaintiff in respect of supplies effected by it under order dated 14 th March, 1988 to which the plaintiff was lawfully entitled to. A sum of Rs. 19,956.69 has been levied as penalty as the plaintiff failed to supply the goods within the stipulated period of delivery in accordance with the terms and conditions covering the said order dated 14 th March, 1988. A sum of Rs. 2,71,098.50 was deducted from the bill amount towards security deposit as the plaintiff failed to furnish security deposit in accordance with the terms and conditions covering the said purchase order dated 14 th March, 1988. The question of extension of period of delivery of goods by the defendant could not and did not arise. It is disputed that a sum of Rs. 4,16,678.79 is due and payable by the defendant to the plaintiff. The defendant has rightly terminated the order dated 8 th February, 1988 and 14 th March, 1988 as the plaintiff has failed to comply with the terms and conditions covering the said two orders. It is denied that the plaintiff did not accept the order dated 14 th March, 1988 in so far as the same related to supply of AAC ANT and it has been further denied that the plaintiff was prevented from supplying ACSR RABBIT under the order dated 14 th March, 1988 due to failure on the part of the defendant to make payment against the supply made within the agreed period. It is denied and disputed that anaggregate sum of Rs. 9,64,136.29 is due and payable by the defendant to the plaintiff. The plaintiff is not at all entitled to Rs. 20,25,378.48 towards interest from the defendant . The plaintiff is not entitled to a total sum of Rs. 29,89,511.77.The claim of the plaintiff is barred by law of limitation and the suit is liable to be dismissed.;