Ruma Pal, J. - (1.) This appeal has been filed from a judgment and decree dated 9th April, 1990, dismissing a suit filed by the appellant. The appellant's claim is on account of goods sold by the appellant to the respondent. The appeal has not been contested by the respondent before us.
(2.) The goods in question were C.I. Pipes of particulars specifications. The facts as emerging from the evidence are : Pursuant to a tender notice issued by the respondent on 28.1.82 the appellant offered to supply the goods and gave a written undertaking that the delivery would be completed within 45 days. The offer was accepted by the respondent by purchase order dated 28.1.82 (Ex.A). The formal agreement executed between the parties relating to the supply of the pipes (Ext. S) is dated 29th July, 1982.
(3.) It is not in dispute that the appellant deposited a sum of Rs. 40,521 by way of earnest money and further security deposit with the respondent. In terms of the agreement the delivery should have been completed by 15th March, 1982. At the request of the appellant the respondent extended the time till 31st July, 1982. On 7th August, 1982 the appellant wrote a letter (Exhibit, F) to the respondent stating that they could not complete the supplies because of the non-availability of materials, non-availability of wagons and fund shortages. It requested for extension of the delivery date till 30th September, 1982. Four bills totalling Rs. 4,14,658.45 were referred to in the letter which were allegedly pending payment for want of extension of delivery time. The appellant's request for extension was granted subject to imposition of fine equivalent to excess cost of the materials supplied after 31.7.82 over the current DGS & D rates (vide Ex. G). On 29.8.82 and 24.9.82 the respondent paid the appellant Rs. 1, 35,930.57 and Rs. 3, 07,946.29 against the lorry receipts submitted by the appellant.;