Sankari Prasad Das Ghosh, J. - (1.) The defendant is the appellant in this appeal arising out of a suit brought by the plaintiff-respondent for recovery of money advanced for purchase of one price of Peeco Branch Oil Hydraulic 4 Pillar Type Multi-Daylight Hot-plate Press from the appellant.
(2.) On 12.6.71, the appellant made an offer to the plaintiff for sale of the Press on certain terms and conditions. The time for delivery was stated as 7 to 8 months from the date of receipt of Order. According- to this offer, 30% of the value of the Press to the tune of Rs. 60,000 was to be paid as advance along with the Order and the balance was to be paid after satisfactory test-run at the Works of the appellant but before effecting delivery. The offer was accepted by the respondent on 9.7.71, when formal Order No. 101 dated 9.7.71 was placed for supply of the Press as per the description and specification given in that order. The specification was changed regarding the size of the Plate in that Order. The time of delivery was also mentioned to be six months from the date of the Order. A cheque for Rs. 18,000 was enclosed along with that Order towards 30% advance. The terms of payment, as per that Order, were the payment of 60% after satisfactory test run at the Works of the appellant and 10% after one month's successful performance of the Press in the Works of the respondent, The appellant failed to deliver the machine within the stipulated time. On 14.10.72, the appellant wrote to the plaintiff explaining the delay in delivering the machine. The delay was stated to be due to the difficulties in obtaining Cast Iron Platens suitable for withstanding the steam pressure. By that letter the appellant requested the respondent to depute one of their representatives to inspect the progress of the Press, if desired, after 25.10.72 on prior intimation. The respondent sent a reply on 17.11.72 to the effect that the technical representative will be inspecting the Press on completion of the -final assembling. The appellant was requested by that letter dated 17.11.72 to send a technical representative to the respondent's Works for demonstration after delivery of the Press to the respondent. There was no reply thereafter from the appellant. On 28.9.73 the respondent wrote to the appellant that they did not require the Press any more as two years had since elapsed and the Government of West Bengal had cancelled their licence. It was also stated in that letter that the respondent had also failed to follow up properly. By that letter dated 28. 9. 78, the respondent requested the appellant to dispose of the parts assembled and to reimburse the amount of Rs. 18,000 paid to the appellant by them in advance. A reply followed from the appellant on 22.10.73 explaining the reason for their postponement of final assembling work of the Press. The reason, according to that letter was an alleged promise by Mr. S. K. Gupta, the Project Adviser of the respondent, to communicate with the appellant by the end of October, 1973 as, according to that letter, Mr. S. K. Gupta had informed the appellant that the technology, based on which the specification of the Press ordered for was drawn, was not correct and the respondent wanted to import Japanese know-how. The respondent sent a letter thereafter on 13.11.73 alleging that the appellant's letter dated 22.10.73 was nothing but an attempt by the appellant to deny the respondent's legitimate claim of Rs, 18,000 paid as advance. By that letter dated 13.11.73, the respondent requested the appellant to refund to them the sum of Rs. 18,000 paid as advance within one month, failing which interest would be charged at the rate of 10% per annum from that date (13.11.73) upto the date of payment.
(3.) As no refund of the sum of Rs. 18,000 was made by the appellant, the suit was brought on 3.5.74 for recovery of the sum of Rs. 18,000 along with intent at the rate of 10% per annum from 9.7.71 to March, 1974. The total claim, including interest for this period to the tune of Rs. 4800, was laid at Rs. 22,800.;