- (1.) THIS appeal is directed against the judgment and order dated 7.2.2014 wherein the appellant -defendant was directed to pay certain amounts claimed by the respondent -plaintiff. The facts that lead to the filing of the suit are as under. The respondent -plaintiff for setting up a plant at Orgram in Burdwan, West Bengal required large quantities of cement for the construction of the plant. The appellant -defendant, a manufacturer of cement, negotiated with the respondent -plaintiff for supply of cement and the correspondence between the parties indicate on what terms and conditions the supply of cement was agreed. According to the respondent -plaintiff, till the completion of the supply of cement under the order, the price was agreed to be Rs. 1900/ - (Rupees one thousand nine hundred) per metric tonne but according to the defendant, it was the price agreed for the supplies made till the end of January, 1998 provided, the orders were placed within November, 1997. According to the respondent -plaintiff, after May, 1998 no cement was supplied by the defendant and on the other hand they demanded Rs. 2600/ - (Rupees two thousand six hundred) per metric tonne which was outside the terms of concluded contract between them. The plaintiff further claimed damages, as the construction of the plant was under progress and they had to place orders for supply of cement in the open market and they were made to pay Rs. 2600/ - (Rupees two thousand six hundred) per metric tonne. Therefore, they are entitled for the amount, the difference in the price of cement purchased from the market and the price at which the cement was to be supplied by the appellant -defendant. They have also claimed another sum of Rs. 2,03,700/ - (Rupees two lakh three thousand seven hundred) as the amount lying in deposit with the appellant -defendant for which no supply of cement was made and the amount is in excess when compared to the quantity of supply of cement. They have also claimed Rs. 8,655/ - (Rupees eight thousand six hundred fifty -five) on account of unloading charges at the time when the contract was in force between the parties.
(2.) THE plaintiff has led oral evidence but the appellant -defendant did not examine any one on their behalf. In appraisal of material, the learned Judge opined that the plaintiff was entitled for the claims made in the suit as per the oral and documentary evidence brought on record. Further, 12 (twelve) per cent interest was awarded on and from the respective dates from which the plaintiff was found to be entitled to the respective amounts from the appellant -defendant till realisation. Aggrieved by the same, the appellant -defendant is before us. Mr. Dhruba Ghosh, learned Counsel arguing for the appellant, mainly relies upon the admissions said to have been made by the witness for the plaintiff in the evidence during the cross -examination. He contends that those admissions would clearly indicate terms of the contract. Over and above, the correspondence, the custom in the cement trading was that the price agreed between the parties would be valid for two months and, therefore, there is no justification in the claim of the plaintiff. He further contended that as the price did not vary subsequent to the conclusion of the contract till May, 1998, there was no occasion for the defendant to address any letter till 8.5.1998 indicating that there was increase in the price and they would supply the material only at Rs. 2600/ - (Rupees two thousand six hundred) per metric tonne. He also took us through the contents of a sheet of paper at page 174 of the paper book contending that this sheet of paper said to be the accounts pertaining to the supply of cement and the mode of payments and the quantum of payments made by the defendant are not substantiated by any ledger or book of accounts in respect of the business contracts. Therefore, reliance cannot be placed on this piece of paper. Similarly, he contended that they should not be made to pay Rs. 8 (eight) thousand and odd towards the loading charges which was never demanded by the plaintiff during the subsistence of the contract between them.
(3.) AS against this, learned Counsel arguing for the respondent -plaintiff took us through the Annexures A, B, C and D and contended that in the absence of any response indicating acceptance or rejection, so far as Annexure B is concerned, the letter dated 24.10.1997 addressed by the plaintiff to the defendant would indicate, there was a concluded contract so far as the price is concerned. Hence, there was no justification in placing reliance on certain admissions made by the witness which were out of context while answering questions during the cross -examination. According to learned Counsel, the documents clearly indicate, Annexure A is an offer and Annexure B was acceptance indicating on what terms they concluded the contract and in the absence of any further correspondence and especially receipt of cheque for Rs. 3,00,000/ - (Rupees three lakhs) without any objection, it would only indicate Annexure B was the concluded contract entered into between the parties. So far as admissions under Section 58 of the Evidence Act, he contends that unless there are pleadings to that effect, no amount of evidence brought on record through the evidence that is with regard to the period of two months would be of any assistance to defendant. So far as rate of cement; the admissions made in the evidence by the witness cannot be relied upon.;