Dipak Kumar Sen, J. - (1.) Periwal Packing Industries Pvt. Ltd., the plaintiff, instituted this suit on or about the 25th November 1980 against the Fertiliser And Chemicals Travancore Ltd., the defendant, claiming inter alia a decree for Rs-75,237.37, alternatively, an enquiry into the damages and a decree on the amount ascertained costs and other reliefs.
(2.) The plaintiff's case is that an agreement was entered into by and between the plaintiff and the defendant on or about the 15th July 1977 where-under the plaintiff agreed to sell jute bags of specified quality and quantity at agreed rates to the defendant under inter alia the following terms and conditions recorded in the correspondence had between the parties and also in a purchase order issued by the defendant to the plaintiff: (a) 90% of the value of the goods supplied would be paid through the State Bank of India and the balance 10% would be paid within 30 days after the receipt of the goods at site. (b) In case the plaintiff defaulted in making delivery failed to explain such default and the defendant did not accept the extension of the delivery period, the defendant would be entitled to deduct from the bills of the plaintiff an amount subject to a maximum of 71/2 of the total value of the order, provided the delay in delivering was not due to any force majeure. (c) The parties would not be considered to be in default in the performance of their obligations under the contract if the same was prevented or delayed by reason, inter alia, of strikes. (d) Any litigation arising on account of the said contract would be taken up in a court of law in Kerala.
(3.) It is not in dispute that the plaintiff has delivered the goods which have been duly accepted by the defendant and that 90% of the payment of the price thereof has been made. It is also not in dispute that the entire supply was not made within the stipulated period and by reason of the delayed delivery the defendant has deducted from the bills of the plaintiff a sum of Rs. 50,3267- by, way of penalty and/or liquidated damages.;