NIKHIL NATH BHATTACHARJEE - (1.)This is a suit for recovery of unpaid sale price amounting to Rupees 3,813.24 ps. together with interest thereon amounting to Rs. 3,68,530.99 ps. for delayed payment aggregating Rs. 3,72,344.23 ps.
(2.)Plaintiffs case is that pursuant to an agreement entered into by and between the plaintiff and the defendant, the plaintiff sold and delivered to the defendant 50 metric tonnes of tea of agreed specification at the price at Rs. 32 per k.g. Deliveries were completed by 3rd June, 1985 and the defendant accepted the deliveries without raising any objection. After the supplies were effected the plaintiff raised and submitted to the defendant two bills both dated 27th June, 1985 for Rs. 16 lacs in total. In the bills the plaintiff indicated the prompt date, that is to say, the date for making payment of the price of the said supplies and the defendant accepted the said bills. The defendant from time to time paid the aggregate sum of Rs. 15,96,186. 76 to the plaintiffs and the balance Rs. 3813.24 ps. remained and is still due. By a letter dated 4th Feb., 1988, the defendant admitted its liability towards the plaintiff on account of the sale of tea and promised to pay the balance sum in terms of the agreement. The plaintiff is entitled to claim interest @ 18 per cent per annum 4 on and from due date of the said bills until realisation thereof. Due notice under the Interest Act, 1978 has been served upon the defendant. There is now due and owing by the defendant to the plaintiff the total sum of Rs. 3,72,344,23 ps. inclusive of interest calculated up to April 7, 1991. But in spite of demand the defendant having not paid the sum or any portion thereof, the present suit had to be instituted.
(3.)The defendant contests the suit by filing a written statement admitting that the plaintiff supplied 50 metric tonnes of tea valued at Rs.16,00,000/- as alleged in the plaint. The defendant alleges that the supplies were obtained from the plaintiff to meet the agreed supplies to the Tea Trading Corporation of India in accordance with the terms and conditions as set forth in paragraph 1 of the written statement. It is stated that none of the formalities for checking the tea supplied as provided in the agreement was observed by the plaintiff. It transpired that the entirety of the tea supplied was not as per sample. However, the defendant somehow managed to supply only 23.056 metric tonnes of tea to the Tea Trading Corporation of India by picking up the best quality, and the remaining 24.944 metric tonnes of tea could not be supplied to the TTCI. The defendant by its letters 27th July, 1985, 7th August, 1985 and 20th Nov., 1985 informed the plaintiff of the said deficiency in the quality of tea which was not in accordance with the sample provided and called upon the plaintiff to replace the same at the remaining 25 metric tonnes to the TTCI. The plaintiff by its letter dated 18th Nov., 1985 duly acknowledged the deficiency in the quality of tea supplied as indicated by the defendant and promised to replace the same. But plaintiff did neither forward a sample of the tea nor replaced the said inferior quality of tea. In the premises the defendant had to commit a breach of agreement with the TTCI and the TTIC after failing to obtain delivery of the remaining 25 metric tonnes of tea expressed its unwillingness to take any further tea from the defendant and terminated the contract. In spite of this and to keep up good business relations, the defendant from time to time paid to the plaintiff several sums as the price of the tea supplied but all along requested the plaintiff to replace the inferior quality of tea supplied and in such circumstances there was not the full payment and in fact, there were some deferred payment which the defendant was constrained to make by reason of plaintiff's failure to supply the tea as per sample provided and as the plaintiff all along promised to replace the inferior quality but failed to do so. The defendant could not take steps for disposing of the inferior quality of tea lying in their godown and in the meantime the market price came down. However, when the market price went up to Rs. 21.31 ps. k.g. and there being the possibility of the market rate going further up, the defendant sold the said inferior quality of tea at Rs. 21.31 ps. per kg. which was below the contractual price of Rs. 37 per kg. as defendant had contracted to sell to TTCI. The defendant thus suffered a loss of Rs. 15.69 per kg. aggregating Rs. 3,91,371. 36 ps. The defendant has made the counter-claim against the plaintiff in respect of the said sum.
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