Delhi High Court
Trg Industries Pvt. Ltd. vs Chzk-Dormash Services And Ors. on 8 October, 2004
Author: H Malhotra
Bench: H Malhotra
JUDGMENT
H.R. Malhotra, J.
1. This is an application made by the plaintiff under Order 39 Rules 2 and 6 read with Section 151 CPC seeking directions of the court asking the defendants to remove grader from the site after furnishing the appropriate security or in the alternative to appoint Receiver to take charge of the grader and sell the same in the open market and deposit the sale proceed in the court.
2. Before dealing with this application it is necessary to give details of the facts in brief.
3. The plaintiff company was awarded the work of construction of 44 to 59.5 Km Lucknow-Kanpur Road. To enable the plaintiff to complete the work, the plaintiff required highly efficient and technically sound working machineries for smooth, timely and speedy execution of the work. Defendant No.3, representing itself as authorized dealer in Russain make Motor Grade DZ 180 fully hydraulic manufactured by defendant No.1 to be supplied by defendant No.2, approached the plaintiff with the specification, officiency, performance and quality brochure.
4. Series of discussions were held between the plaintiff and defendant No.3 who also represented defendant No.1 and 2. Defendant No.3 assured the plaintiff that the grader intended to be supplied to the plaintiff, was most suitable for the road work in India. Consequently the plaintiff placed a detailed purchase order for supply, commissioning and servicing of one motor grader as per specifications. An advance of Rs.15 lacs was made by the plaintiff with the purchase and balance price of Rs.27,08,69/- was paid by the plaintiff on 2.3.2002. Though, grader was supplied on 20.3.2002 but supply was not as per the work order of the plaintiff thus necessitating exchange of various correspondence between the plaintiff and defendants. It is stated that though representative of defendants visited the site many times for the purposes of installation of the machine but could not make it operational and could not commission the same and finally plaintiff was left with no alternative but to arrange another grader on hire.
5. Plaintiff by filing the present suit have sought refund of the amount paid by them with interest.
6. The defendants have contested the suit of the plaintiff by filing written statement attributing fault and negligences of the plaintiff in making the machine operational.
7. What is being sought by making this application is that since the grader proved totally useless for the plaintiff and plaintiff had also rejected the grader in terms of Sections 41 and 43 of the Sales Goods Act to either replace the grader or pay back the price of the grader instead the grader lying idle at site and is further likely to be deteriorated in due process of time and, therefore, this grader be allowed to be sold through Receiver and sale proceed should be deposited in court so that the decree if ultimately passed in favor of the plaintiff can be executed through such sale proceed. I may state that present suit is a suit for recovery of the amount which was paid by the plaintiff towards the price of the grader. If plaintiff really rejected this machine, they cannot ask for sale of this machine as it shall be domain of the defendants to deal with their property as they desire. Even otherwise, this court is yet to determine whether the supply of grader was in accordance with the terms of the contract and whether the machine so supplied was in perfect condition and could be made operational. To sum up the court is yet to adjudicate as to which of the parties were in error. Therefore, ordering its disposal at this juncture shall not be in the interest of justice as if ultimately court holds that plaintiff are entitled to the sum claim in the suit, the machine would have to be returned to the defendants and in case it is held otherwise, the title of the machine would pass on to the plintiff, therefore, making any order at this juncture in respect of the grader is not warranted, this being so, the prayer of the plaintiff either for its sale or directing the defendants to take it back cannot be made.
8. The application stands disposed of.
