Punjab Metal Works Pvt. Ltd. vs Union Of India
2000 Latest Caselaw 822 Del

ORDER

Mukul Mudgal, J.

1. This suit, filed by the plaintiff against the Union of India through Secretary, Ministry of Works & Housing claims permanent injunction directing the defendantUnion of India not to prevent the plaintiff from taking supplies of dross metal and to deliver the same to the plaintiff in pursuance of Contract dated 5.1.79 and in the alternative seeks a direction to the defendant to pay damages of Rs.1,11,400/ and also seeks the release of security deposit by the plaintiff for Rs.20,000/.

2. On 6th October, 1978 the Govt. of India Press, New Delhi was seeking to dispose of about 200 quintals of metal dross. Accordingly, an advertisement was published on 7th October, 1978. The relevant portion of the said advertisement reads as follows:

"The General Manager Govt. of India Press, Minto Road, New Delhi, for and on behalf of the President of India invites sealed tenders in the prescribed form obtainable from his office free of cost for the purchase of Lino, Mono, Metal dross, all mixed together. The approximate quantity of the metal doers is about 200 quintals.

   A flat rate per quintal of Metal dross should be quoted in figure    and in words both as the dross is lying in mixed conditions."  
  

3.  Thereafter terms & conditions for the auction were prescribed on 6th October, 1978 and the relevant terms & conditions read as follows :     

   "A lot of 200 qts. (approx) of Metal Dross is lying for disposal    in the Government of India Press, Minto Road, New Delhi which    includes Lino and Mono Dross. The purchaser will have to accept    delivery of Metal Dross as it is and where it is basis. The    material can be seen and sample obtained if desired in the press    on any working day between 10.00 A.M. to 1.00 P.M. and 2.00 P.M.    to 4.00 P.M."  
  

4. On 15.11.1978 the plaintiff submitted a tender in pursuance of the advertisement issued by the defendant. The plaintiff quoted a rate of Rs. 993 per quintal for the metal dross and the plaintiff has laid stress on Clause 5 in its letter dated 15.11.78 (Annexure P1) which reads as follows:

"5. The undersigned hereby quotes the following rates:

   Metal Dross @ Rs. 993/ (Rupees Nine hundred Ninety three per    quintal. 
 

   The above rate is for Metal Dross only."  
  

5.  This tender of the plaintiff was accepted by the letter of the General Manager by its letter(Annexure P2) dated 5th January, 1979. The relevant portion of the said letter dated 5th January, 1979 on which reliance has been placed by the plaintiff reads as follows:     

   "With reference to your quotation dated 15.11.78 in response to    it on the subject mentioned above, I am to inform you for and on    behalf of the President of India, that your tender for the pur   chase of Metal Dross @ Rs.993/- (Rs. Nine Hundred and ninty-three    only) per quintal has been accepted on the terms and conditions    under which you tendered your offer."  
  

6. Thereafter a dispute arose between the parties. The plaintiff by a letter Annexure P3) dated 20th February, 1979 sought permission to separate the dross from metal and by their letter (Annexure P4) dated 9th March, 1979, the Govt. of India reiterated its condition advertised as well as the tender condition where the sale of the metal dross was to be on 'as is where is basis'. It was also stated in the said letter dated 9th March, 1999 that the plaintiff prior to submitting its tender had inspected the metal dross twice. On 23rd March, 1979, the defendant, Govt. of India issued another letter(Annexure P6) to the plaintiff to remove the dross immediately and by its Lawyer's letter(Annexure P7) dated 19th May, 1979, the contents of the Union of India's letter dated 23rd March, 1979 were disputed by the plaintiff and a Legal Notice dated 27th March, 1979 under Section 80 said to be sent by the plaintiff reiterated. Pursuant to the above notice, the plaintiff filed the present suit claiming the relief, as described above on 15th October, 1979.

7. The main case of the plaintiff is that in the letter of accpetance(Annexure P1) dated 15th November, 1978 the plaintiff had accepted the tender only for metal dross. The plaintiff had tendered its rates only for metal dross and this offer of the plaintiff was accepted by defendant's letter dated 5th January, 1979(Annexure P2) by which the tender was accepted on the terms & conditions under which the plaintiff tendered its offer. The plaintiff's case is that since the conditions under which the plaintiff had offered its tender was accepted, the term 'metal dross only' specified in the said offer clearly means that the plaintiff was entitled to separate the metal dross from the other waste which was lying with the metal dross in the mixed condition. In the written statement the defendant has reiterated that under the terms and conditions of the tender, the purchasers were required to accept delivery of metal dross on 'as it is and where it is basis' and tender terms clearly stated mixed dross on the tender from. It was also further pleaded that dross can never be pure and dross is molten scum and is impure. The insertion of the words "for metal dross only" was not only grossly inconsistent with the terms and conditions of the contract but the tenderers were allowed to inspect the dross before quoting. It was further pleaded that plaintiff had inspected the metal dross twice before the confirmation of the tender and there was no question of permitting plaintiff to lift the metal dross after sorting it out. The defendant has thus denied the averments of the plaint including the claim for damages or the plaintiff's prayer as to the release of the security deposit. The plaintiff in its replication reiterated the contents of the plaint. On 22nd April, 1997, the plaintiff has led its evidence through Mr. Vinod Kumar Bhandari (P.W.1), the Managing Director of the plaintiff Company, who has affirmed the averments made in the plaint. On 30th April, 1997, in his crossexamination, Mr. Bhandari (P.W.1) stated as follows:

"It is correct that we had inspected the goods before we had submitted our tender but I had not inspected the goods. Inspection may be once or twice. Mr. P.C. Bhandari who was the earlier Managing Director had inspected the goods."

8. On 16th September, 1997 the defendantUOI has led its evidence through its Manager, Shri T.N. Banerjee, D.W.1, who has affirmed the averments made on behalf of the defendant in the written statement. DW. 1 has inter alia deposed that metal dross was residue of the ashes with particles of metal and that tenders were invited for metal dross with mixed condition. He further stated that the plaintiff even prevented the defendant from lifting the material and the defendant was informed that that the material is to be lifted on 'as is where is basis'.

9. The main question involved in the present case is the meaning of the word 'dross'. The Webster's Dictionary (at Page No. 559 of the Dictionary) meaning of the word 'dross' is as follows:-

"dross...

   1. The scum or extraneous matter of metals, formed on the surface    in the process of melting; slag; scoria. 
 

   2. rust; crust of metals. [Rare.] 
 

   3. waste matter; refuse; any worthless matter separated from the    better part; impure matter."  
  

10. It will be readily seen that dross itself is the scum formed on the surface in the process of melting, slag, scoria, waste matter, refuse or any worthless matter separated from the better part or impure matter. In this view of the matter, the plaintiff's user of the word 'metal dross' only and the defendant's acceptance of the tender on the terms tendered by the plaintiff does not make any difference as the plaintiff was clearly bound to lift the metal dross in view of the definition of the word 'dross' which included impurities. The plaintiff's attempt to separate the mud and the other impurities from the metal dross tendered by the defendant was clearly unjustified and it was the plaintiff who was backing out of the tender accepted by him. The plaintiff's witness P.W.1, Mr. Bhandari admitted having had the inspection done by the company before tendering. The defendant's witness also deposed that dross was residue of ashes with particles of metal and tenders were invited for metal dross with mixed condition.

11. Thus the addition of the words "The above rates is for metal dross only" in the tender offer by the plaintiff does not make any difference since dross itself comprises of impurities and in this view of the matter the plaintiff was not justified in refusing to lift the metal dross. Consequently the detention of the security amount by the defendantUnion of India is justified and the plaintiff cannot seek its refund. In view of the above findings the question of grant of damages cannot survive.

12. Thus the plaintiff's claim framed in the plaint is totally unjustified and frivolous. The plaintiff is not entitled to the injunction and in fact its claim for damages is totally uncalled for. In this view of the matter and keeping in view the tender conditions the plaintiff's prayer as to release of security deposit of Rs.20,000/ is rejected.

13. The suit is, therefore, dismissed with costs. Costs are quantified as payable by the plaintiff to the defendant at Rs.10,000/- and are payable within eight weeks from today.