- (1.) Present appeal, at the instance of plaintiff, is directed against the judgment of reversal, whereby the learned Additional District Judge allowed the first appeal of the defendant, setting aside the judgment and decree of the learned trial Court and suit for mandatory injunction of the plaintiff, was dismissed.
(2.) Brief facts of the case, as noticed by the learned trial Court in paras 1 to 3 of its judgment, are that defendant agreed to supply five lacs first class bricks according to P.W.D. specifications to the plaintiff. A cheque of Rs.49,611/- dated 31.3.1977 was issued as the price of the bricks in full and final payment. An undertaking was signed by the defendant on that day that he would supply the bricks within five months. In case of failure to do so, he was to return the amount of the cheque in full alongwith 50% compensation. Acknowledgment of the bricks was to be valid if authenticated under signatures of S.O. concerned or S.D.O. The defendants supplied only three lac bricks and violated stipulations of the agreement. A registered notice was sent to the defendant but to no effect. Plaintiff filed the suit praying therein for a decree for mandatory injunction ordering the defendant to supply the remaining two lacs bricks as agreed upon.
(3.) The defendant contested the suit on legal objections as to limitation, estoppel and maintainability as also on merits. He has pleaded that the plaintiff was to make arrangement for carriage of the bricks after giving the permit and the work order which the plaintiff never did and thus violated provisions of clause 3 of the agreement. The said payment was made by the defendant from the bricks at the brick klin site being cost of the bricks and not for carriage of the same. The plaintiff had no intention on 3.10.1977 to purchase the said bricks. Only one work order dated 3.10.1977 was issued. It was firstly for five lacs bricks but afterwards a cutting was made and it was reduced to three lacs. No further work order was issued nor the plaintiff obtained required permit from the Food & Supply Department. Defendant had not agreed to supply the bricks within five months. Some other contractor had to carry the bricks after issue of the work order. The plaintiff failed to manage the permit and to issue work order and the bricks were not carried by the plaintiff. The defendant was entitled to a claim for watch and ward of the bricks and the rent of the site. The plaintiff took back the money from the contractor which was given to him for supply and carriage of bricks and this showed that the plaintiff was not in need of the bricks. The supply was to commence within one week from the date of agreement after informing the S.D.O. Regarding the rate of carriage. The same was not done and the plaintiff was estopped from filing the suit.;