IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 290 of 1999(B)
1. KERALA AGRL.USTY
... Petitioner
Vs
1. M/S ARAFATH
... Respondent
For Petitioner :SRI.N.D.PREMACHANDRAN, SC, AGRL.UNTY.
For Respondent :SRI.SHAJI P.CHALY
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :01/01/2009
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 290 OF 1999
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Dated this the 1st day of January, 2009.
J U D G M E N T
This is an appeal preferred against the judgment and
decree in O.S.1524/94 of the Subordinate Judge, Thrissur. It
was a suit filed for realisation of an amount due to the plaintiff
from the defendant, Kerala Agricultural University towards the
value of materials supplied under the terms of the contract.
The plaintiff had entered into an agreement, Ext.B1 with the
defendant as per which it had undertaken to supply materials
for a period of one year, i.e., from 1st May, 1993 to 30.4.1994.
It is the case of the plaintiff that it had supplied materials
covered by invoice Nos.7 and 9 dated 28.4.94 and the value of
the materials come to Rs.35,231/-. It had been unlawfully
withheld by the University and therefore the suit is instituted
for realisation of the same.
2. On the other hand the University would contend
that two indents were placed on 28.3.94 and 15.4.94 for
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supply of materials but the plaintiff failed to supply the same
which forced the University to purchase materials from outside
resulting in loss to the University and therefore as per the
terms of the agreement it is entitled to appropriate the same
and withhold the payment.
3. In the trial court Exts.A1 to A12 and B1 to B14
were marked. PW1 and DW1 were examined. The Court
below decreed the suit repelling the contentions of the
defendant in favour of the plaintiff. It is against that decision
the defendant has come up in appeal.
4. The point that arises for determination is whether
the plaintiff has committed any breach of terms of contract
and by doing so has caused damages to the defendant which
entitles the defendant to appropriate the amount.
Point:
5. As per Ext.B1 agreement the plaintiff has agreed to
supply materials from 1.5.93 to 30.4.94 to the University. As
per clause (5) of Ext.B1 if the contractor defaults in due supply
of all or any of the articles correctly and promptly as above,
the University is at liberty to procure the same from elsewhere
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without canceling the contract and in such process if it incurs
at a higher cost than the agreed rate that can be deducted by
the University from the Contractor’s bill or adjusted or
otherwise realised from his security deposit or recover from
him by other means. So there is an enabling provision in
Ext.B1 agreement which entitles the defendant to appropriate
if a breach of contract is committed by the plaintiff.
6. So the point that arises for determination in this
case is that whether the defendant has placed two indents on
28.3.94 and 15.4.94 and the plaintiff has failed to supply
materials on the basis of such indents. The case of the
plaintiffs is to the effect that it has not received such an indent
at all and therefore the question of supplying of materials or
the breach of terms of contract does not arise. In support of
the contentions the defendant had produced documents in the
form of Exts.B3 and B5 which are the letters alleged to be
addressed to the plaintiff for supply of materials. Ext.B3 is the
copy of the said indent dated 28.3.94 whereby the orders are
placed for supply of 10,000 kgs. of yellow maize and 5000
kgs. of wheat bran. Ext.B5 is the copy of indent dated 15.4.94
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whereby the defendant has placed orders for supply of 15 tons
of yellow maize and 6 tones of ground nut cake. Ext.B4 is a
reminder. Exts.B8 to B13 are produced by the defendant to
show that it had taken steps to purchase these materials from
outside agency. Ext.B14 is the despatch register maintained
by the University and the specific contention of the University
and its witness is to the effect that an order has been placed
and posted through certificate of posting and therefore it will
conclude that there had been a despatch of the indent as
contended by the University. I had meticulously perused
Ext.B14 register. Whenever a material is sent by certificate of
posting there is a typed paper attached to it to evidence the
same. But when it comes to the indent dated 28.3.94 there is
absolutely nothing to show that it had been sent by certificate
of posting. So the very consideration of Ext.B14 and its
contents would reveal that there is evidence to show that it
has not been sent by certificate of posting. It is an important
matter in a case of this nature to establish that the indent had
been properly delivered to the defendant and under ordinary
circumstances when an indent is placed and for a considerable
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length of time when there is no response from the person who
is bound to supply articles certainly the authorities of the
University would have contacted them for the reason that
there is large supply of materials by the plaintiff to the
University. Therefore it cannot be said that Ext.B14 is
sufficient to discharge the burden placed on the defendant to
prove that it had despatched the indent and that it had been
received by the plaintiff. It has to be remembered that it is
the requirement of the defendant that was sought to be made
by placing such indent and certainly there would be some
materials or action taken by them when they are not receiving
it. It is not available in this case. Further for the supply of
such materials we find that action is initiated by the University
after the expiry of the terms of agreement under Ext.B1 i.e.
only in the last week of May. All these show that all is not well
with the case of the defendant. When it is so unless there is
evidence which will clearly establish that the plaintiff in spite
of receiving an indent had failed to supply materials, one
cannot hold that the plaintiff has committed a breach. It is
also to be remembered, after all, the plaintiff has demanded
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payment of amount for the materials which is supplied and
utilized by the University. Therefore unless the breach of
terms of agreement is established beyond doubt one cannot
direct the plaintiff to forgo the value of the materials which it
had supplied. Therefore I cannot find fault with the Court
below for analyzing the materials in that aspect and the mere
suspicion that just because an entry is made in the register it
would have been received by the plaintiff cannot be accepted.
Further the Court below has only granted reasonable interest
as well in this case and there is no defect in the judgment of
the trial court which calls for interference at the hands of this
Court. Therefore the appeal lacks merit and it is dismissed.
But under the circumstances without any order as to costs.
M.N. KRISHNAN, JUDGE.
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M.N. KRISHNAN, J.
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A.S. No. 290 OF 1999
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J U D G M E N T
1st January, 2009.