M/S. Lucky Engineering Works ... vs Shri G.S. Chadha
2011 Latest Caselaw 3337 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No.8/2002

%                                                       14th July, 2011

M/S. LUCKY ENGINEERING WORKS (REGD.) & ANR. ...... Appellants
                     Through: Mr. Pankaj Batra, Advocate.

                           VERSUS

SHRI G.S. CHADHA                                   ...... Respondent
                           Through:   Mr. K.D. Kaushal, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


    VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this Regular First Appeal under

Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment and        decree dated 29.11.2001 by which the suit of the

respondent/plaintiff      for recovery of    advance price paid       to   the

appellants/defendants with respect to a machine (which was not

supplied) was decreed.       The suit has been decreed for Rs.3,80,885/-

alongwith costs and interest @ 12% per annum.


2.            The facts of the case are that there was a contract between

the       parties    on     24.8.1998,    Ex.PW1/1,      by    which       the

appellants/defendants agreed to supply a machine " 30 inch working

width Roto Gravier Single Colour printing machine with single station
RFA No.8/02                                                       Page 1 of 5
 coating machine roll to roll". The total price of the machine agreed to

be paid was Rs.4,80,000/- and of which a sum of Rs.2 lacs was received

in advance.     The balance payment was Rs.2,80,000/-. The delivery

period was six weeks.


3.           It was not disputed before the trial Court that the

appellants/defendants     have   in   fact   received   total     amount     of

Rs.3,50,000/-   from    the   respondent/plaintiff/buyer   i.e.    Rs.2    lacs

originally and thereafter two sums of Rs.1 lakh and Rs.50,000/-

respectively. The issue which was urged before me was that time of

performance was not the essence of the contract and there was no

breach on the part of the appellant as the appellant/defendant was

ready to deliver the machine for the first time in February, 1999 as

stated in Ex.PW1/3, but which delivery was not taken. Subsequent to

the letter Ex.PW1/3 dated 13.2.1999, there was certain correspondence

exchanged between the parties, including Ex.PW1/4 dated 23.2.1999.

In support of his argument learned counsel for the appellants also

relies upon a judgment of the Supreme Court in the case of Arosan

Enterprises Limited Vs. Union of India 1999 (9) SCC 449.


4.           The fact of the matter is that the appellants could not

manufacture and produce the machine within the contractual period of

six weeks.    The respondent/plaintiff was forced to pay an additional

amount of Rs.1 lakh on 16.9.1998 although the contract Ex.PW1/1

dated 24.8.1998 did not require any further payment to be made till
RFA No.8/02                                                       Page 2 of 5
 the supply of the machine inasmuch as the balance payment was

Rs.2,80,000/- with delivery period of six weeks meaning thereby that

the balance payment would only be payable on delivery. Not only the

appellants managed to extract an additional amount of Rs.1 lakh

beyond as stipulated in the contract (and which the respondent/plaintiff

paid inasmuch as it had already parted with a substantial amount of

Rs.2 lacs, yet, the appellants did not supply the machine), the

respondent/plaintiff thereafter was again forced to make payment of

Rs.50,000/- through cheque No.228816 dated 29.10.1998. The period

of delivery had expired in the meanwhile by about 7.10.1998. During

this entire period and in fact till February, 1999 i.e. a period of 24

weeks,   instead   of   six   weeks,   there   was   never   offer   of   the

appellants/defendants to deliver the machine. Even assuming that the

time of performance is not the essence of the contract, the fact of the

matter is that there cannot be interminable delay in supply of machine.

Learned counsel for the appellants stressed the fact that once the time

was not the essence of the contract, and the appellants vide Ex.PW1/3

dated 13.2.1999 offered to give the machine, it should be held that it

was the respondent/plaintiff who was guilty of breach of contract.           I

may note that except writing Ex. PW1/3, there is no proof which was

proved by the appellants that the machine was in fact ready when the

notice dated 13.2.1999 Ex.PW1/3 was sent. The fact that the machine

was in fact not ready even when Ex.PW1/3 dated 13.2.1999 was sent


RFA No.8/02                                                    Page 3 of 5
 becomes clear from the fact that the appellants disputed that certain

parts of machinery were in fact not to be supplied, though, the contract

is exhaustive so far as the machine to be supplied.


           In view of the fact that the machine was really not ready

and false stand was taken up that the machine was ready clearly

shows that there is no scope for applicability of the judgment in the

case of Arosan Enterprises Limited (supra) as cited by the learned

counsel for the appellants.


           A reference to para 5 of the written statement shows that

the appellant/defendant admitted that by the end of November a heat

control panel and 5 HPS. Motor with panel had not been fixed with the

machine   and   which   parts   still   had   to   be   purchased   by   the

appellant/defendant.    This stand in the written statement shows

therefore that the complete machine was in fact not ready in 1st week

of November, 1998 and therefore clearly what was therefore the letter

dated 13.2.1999 Ex.PW1/3 was only a ruse as nothing has been filed by

the appellant thereafter to show that these parts were purchased.


5.         In my opinion, one determinative issue which arose during

the course of arguments in the present appeal was that the respondent

agreed to make the payment of the balance amount of the machine

even today so that the appellants should give the machine on payment

of the complete price. When this was put to the appellant No.2, who is


RFA No.8/02                                                    Page 4 of 5
 present in person, he outrightly refused on the ground that machine

was no longer available as the same was burnt in a fire. Further, when

another proposal was put to the appellant No.2 as to whether he is

ready to refund the amount received with reasonable interest, the

appellant No.2 stated that he is not ready to return even a single

rupee.


6.         This Court is entitled to interfere with the impugned

judgment and decree only if the trial Court takes one view which is

illegal and which causes grave injustice which now is not so in the facts

of the present case. The facts show that not only the machine was not

ready, but, the respondent/plaintiff was forced to part with additional

monies in the hope that he will receive the machine. Even before this

Court, the appellants have taken a totally unacceptable stand of not

being ready to supply the machine on payment of balance price or not

agreeing to refund the advance price received with respect to the

machinery with a reasonable rate of interest. The respondent was

ready to accept any reasonable amount because he had already parted

with monies to the appellants.


7.         In view of the above, there is no merit whatsoever in the

appeal.   The appeal is accordingly dismissed, leaving the parties to

bear their own costs. Trial Court record be sent back.


JULY 14, 2011                                   VALMIKI J. MEHTA, J.

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