- (1.) This is a suit for declaration for Rs.70,629.17 P. or in the alternative an enquiry into the loss and damages suffered by the plaintiff and decree for such sum as may be found due to the plaintiff.
(2.) The plaint case in brief is that by exchange of correspondence between the parties the plaintiff agreed to sell and the defendant agreed to purchase 95 Kms. of Galvanised Steel Stranded Wire having 7/3.15 mm. Steel Strands of Grade 3 as per ISS-2141/1968 of minimum tensile strength 110 K.G.f./mm @ Rs.2,510/- per Km. upon several conditions as incorporated in the plaint. The contract was concluded which will be evident by several letters referred in paragraph 2 of the plaint. By a telegram of November 3, 1972 as confirmed subsequently by Memo No. 14856/T-331/III dated November 6, 1972 addressed to the plaintiff at its office at Calcutta within the jurisdiction of this Court the defendant purportedly terminated the said contract unitarily, arbitrarily and without any just or bona fide cause, although the plaintiff was at all material time ready and willing to perform its part of the obligations under the said contract. It is also stated that acting on that contract the plaintiff, in fact, manufactured galvanized stranded wire of the contracted quality and specification. But despite repeated demands the defendant failed and neglected to inspect or cause the inspection of the said goods prior to delivery in terms of the contract. It is claimed in the petition that the real motive behind such cancellation was sharp decline in the price of the said goods falling below the contracted price. Having failed to persuade the defendant to take delivery of those manufactured goods the plaintiff was ultimately constrained to sell the same in the open market at the best available price @ Rs.4,000/- per Matric Tone and for an aggregate value of Rs.1,75,200/-. The plaintiff thus sustained a loss to the extent of Rs.63,250/-. It is claimed that the defendant had due notice and knowledge of the said sale and loss incurred by the plaintiff. Thereafter the plaintiff prepared its bill for the said loss of Rs.63,250/- and submitted the same to the defendant under covering letter No.2720/73 dated April 17, 1973 which was accepted by the defendant. In the circumstances, the present suit arose.
(3.) The suit is contested by the defendant by filing a written statement in which all the material allegations are denied and it is inter alia stated that by a telegram dated August 25, 1971 the defendant informed the plaintiff that offer in letter to supply the goods at the price had been accepted by them. But at the same time the defendant also imposed some conditions as below : "(i) Description of Material. Quantity in Km. Rate per Km. Galvanised Steel Stranded Wire having 7/3.15mm Steel Strands of grade 3 as per I.S.S. 2141/1968 minimum tensile strength 110KGF/mm. 95. Rs.2510/- Net Price. (ii) A contract agreement of the defendant's standard form will have to be executed between the plaintiff and the defendant; (iii) The delivery should commence within 2 months of the date of the issue of the purchase order and to be completed within 2 to 3 months time. The order is placed on the strict understanding that the entire work including manufacture and delivery, supply of material shall be completed within the period; (iv) This order constitutes the entire agreement. No variation or modification of this order, waiving of terms and provisions hereof shall be deemed valid unless mutually agreed upon in writing by both the purchaser and the supplier; (v) A sum of Rs.1200/- calculated at percent of the contract value of the purchase order as temporary security on Rs.20,000/- as permanent security shall have to be deposited by the defendant with the Accounts Officer of the plaintiff for faithful execution of the order; (vi) The plaintiff would acknowledge the receipt of the purchase order and signify his acceptance to the terms and conditions within seven days. The plaintiff would start supplies only after he had furnished such unconditional acceptance.";