R.N. Mittal, J. - (1.) THIS judgment will dispose of R.F.A. Nos. 195 and 299 of 1975, which arise out of the same judgment.
(2.) BRIEFLY the case of the Plaintiff is that it is a partnership firm registered under the Indian Partnership Act. The Defendant issued an advertisement in the Tribune dated February 27, 1970, for the supply of bandages, surgical gauze and absorbent cotton wool. The Plaintiff submitted its tender on March 19, 1970, for the supply of 8,000 Kgs. of absorbent cotton wool, in rolls of 400 grams each, 1,50,000 metres of surgical gauze etc. The Defendant accepted the tender submitted by the Plaintiff and placed an order dated March 27, 1970, for the supply of 4,000 kgs. of absorbent cotton wool. The Plaintiff supplied 8,400 rolls of absorbent cotton wool in rolls of 400 grams each under goods receipt dated April 21, 1970, and 1,600 rolls under goods receipt No. 866 dated April 21, 1970. The Defendant received the goods on April 22, 1970. Bills for Rs. 25,032 and Rs. 4,768 were sent by the Plaintiff to the Defendant for the aforesaid goods, which were to be paid within thirty days from the date of the receipt of the goods. The Defendant did not make the payment within thirty days in accordance with the terms of the contract between the parties. On enquiry by the Plaintiff from the Defendant, it was revealed that an objection had been taken by it about the net weight of the cotton wool. The Plaintiff, who had been hard pressed for money, agreed to compensate the Defendant for the weight of the outer cover of 10,000 rolls arid despatched 850 rolls more of 400 grams each free of cost, on May 26, 1970. It was accepted by the Defendant. Thereafter, the Defendant paid Rs. 26,657.50 Paise as the price of 10,000 rolls of cotton wool at the rate of Rs. 2.98 per roll of 400 grams each. It is stated by the Plaintiff that Rs. 3,142.30 Paise were withheld illegally by the Defendant as the price of the weight of the inter -leaf paper. The Defendant, on April 3, 1970, placed an order for one lakh metres of surgical gauze with the Plaintiff. It started supplying the same in piece -meal. It is alleged that two bills, of the value of Rs. 3,807 and Rs. 2,538 are outstanding against the Defendant in respect of the said supply. Consequently, the Plaintiff instituted a suit against the Defendant for the recovery of Rs. 10,487.50 Paise. The suit was contested by the Defendant. The Defendant admitted that it placed an order for the supply of 4,000 Kgs. of cotton wool absorbent at the rate of Rs. 2.98 Paise per roll of 400 grams net weight. It, however, stated that 10,000 rolls of cotton wool were received but their weight was less and was not in accordance with the contract entered into between the parties. According to the Defendant, the payment for the material actually supplied amounting to Rs. 26,657.50 was made to the Plaintiff. The Defendant further stated that the Plaintiff supplied 843 rolls of cotton and not 850 rolls as alleged by the Plaintiff to compensate the Defendant for the short supply made by it in pursuance of the Defendant's order. The Defendant admitted that it placed an order for the supply of one lakh metres of surgical gauze with the Plaintiff. According to the Defendant, the Plaintiff failed to supply the goods within the stipulated period of thirty days and, therefore, the payment was withheld for the goods supplied. It is further stated that the Defendant had to purchase the goods in the market at the risk of the Plaintiff and that an amount of Rs. 28.36 is due from the Plaintiff. On the pleadings of the parties the Court framed the following issues: 1. Whether the Plaintiff is a partnership firm duly registered under the Indian Partnership Act and the person suing is shown as a registered partner in the Register of Firms? 2. Whether the weight of the overleaf or inter -leaf paper of the cotton rolls was to be included for the purposes of calculating the price of the goods? Whether the Defendant illegally withheld the payment of Rs. 3,142.50 Paise as alleged in paragraph 10 of the plaint?
(3.) WHETHER the Defendant is not liable to make payment of Rs. 3,807 and Rs. 2,538 for the supplies made by the Plaintiff?;