DEBANGSU BASAK, J. - (1.) THE plaintiff wanted to set up a plant at Orgram in Burdwan, West Bengal. Plaintiff required large quantities of cement for the construction of the plant. The defendant was a manufacturer of cement. The plaintiff negotiated with the defendant for supply of cement. Negotiations were done verbally. By a letter dated October 24, 1997 the defendant offered to supply 1,500 metric tonnes of cement of a particular quality at the rate of Rs. 1,900/ - per metric tonne together with West Bengal Sales Tax as applicable F.O.R. at site of the plaintiff. The plaintiff issued a letter dated October 24, 1997 which the plaintiff claimed to be a counter offer where the plaintiff wanted supply of 1,500 metric tons of the same quality of cement at the same price. It was specified that the price would remain firm during the pendency of the order. According to the plaintiff, it sent a cheque for Rs. 3,00,000/ - along with the letter dated October 24, 1997 to the defendant. Such cheque was encashed by the defendant. With the encashment of such cheque, the plaintiff claimed, that a concluded contract came into being on the terms contained in the letter of the plaintiff dated October 24, 1997. According to the plaintiff, the parties acted on the basis of letter dated October 24, 1997 of the plaintiff. According to the plaintiff, out of the contracted of 1,500 metric tonnes the plaintiff received 577 metric tonnes leaving 923 metric tonnes to be delivered by the defendant to the plaintiff. From time to time the plaintiff made advance payments to the defendant aggregating to a sum of Rs. 13,00,000/ -. The value of the goods supplied by the defendant to the plaintiff was Rs. 10,96,300/ -. Therefore, according to the plaintiff the defendant was liable to refund a sum of Rs. 2,03,700/ - on account of the advance payment received by the defendant.
(2.) ACCORDING to the plaintiff, the defendant acted in breach of the contract and by a letter dated May 8, 1998 sought to increase the price to Rs. 2640 per metric tonne. The defendant was not entitled to do so. No supply was made subsequent to the letter dated May 1, 1998. The plaintiff being in urgent need of cement purchased the same from a different agency at the rate of Rs. 2,600/ - per metric tonne. The plaintiff claimed the difference of such supply from the defendant. The plaintiff claimed that in terms of the contract as understood by the plaintiff, the defendant was to supply cement at the site of the plaintiff which included the handling charges. Under the new contract the plaintiff was required to pay the handling charges. The plaintiff claimed the handling charges from the defendant. The plaintiff quantified such claim at Rs. 8,655/ -. The plaintiff in addition to the three claims as enumerated above claimed compensation at the rate of Rs. 2,00,000/ - per day. In its written statement the defendant claimed that the terms and conditions contained in the letter dated October 4, 1997 for the plaintiff was contradictory and/or was inconsistent with the terms and conditions agreed upon between the parties. It claimed that the supply made by the defendant was in terms of the defendant's letter dated October 24, 1997. The defendant claimed that it was entitled to increase the price. Price of cement was not fixed. The request for increase in price contained in the letter dated May 1, 1998 of the defendant was in terms of the agreement as understood by the defendant. The defendant claimed that the plaintiff repudiated the contract wrongfully. According to the defendant, the plaintiff was not entitled to any claim. Issues with regard to the instant suit were framed on September 9, 2013. Nine issues were framed which were as follows: - 1. Whether the sale and purchase of 1500 MT of ACC super Portland slag cement by the defendant to the plaintiff was governed as per the terms and conditions contained in the defendant's order dated 24th October 1997 or the Plaintiff's purchase order dated 24th October 1997? 2. Is there any agreement between the parties with regard to the price offered by the plaintiff for ACC super Portland slag cement throughout the tenure of the agreement as alleged by the plaintiff in paragraph 5 of the plaint? 3. (a) Whether the defendant committed breach in not supplying cement to the plaintiff at the rate of Rs. 1900/ - per MT? (b) If so, was the defendant liable to compensate the plaintiff for such breach? 4. Is the plaintiff entitled to Rs. 7,38,400/ - being the difference in price of the cement purchased from the market and the rice at which the cement was to be supplied by the defendant @ Rs. 1900/ - per MT? 5. Is the plaintiff entitled to Rs. 32,00,000/ - for loss and damages suffered as claimed in paragraph 11(b) of the plaint? 6. Is the defendant liable to return to the plaintiff Rs. 2,03,700/ - being the amount lying in deposit with the defendant? 7. Is the plaintiff entitled to Rs. 8,655/ - on account of unloading charges as claimed in paragraph 11(d) of the plaint/ 8. Is the plaintiff entitled to interest @ 18 % per annum? 9. To what reliefs the plaintiff is entitled? Two witnesses of the plaintiff were examined in chief by the plaintiff and cross -examined by the defendant. The defendant did not produce any witness. Nine documents were tendered in evidence and marked exhibits.
(3.) MR . Ajoy Krishna Chatterjee learned Senior Advocate for the plaintiff submitted that there was only one contract between the parties and that such contract was on the basis of the terms and conditions enumerated in the letter dated October 24, 1997 of the plaintiff being Exhibit 'B'.;