Union Of India vs Southern Alloy Foundaries (Pvt.) ...
2021 Latest Caselaw 13147 Mad

                                                                               S.A. No.432 of 2006 &
                                                                              Cros.Obj.No.12 of 2014

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 05.07.2021

                                                       CORAM

                               THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

                                               S.A. No.432 of 2006 &
                                               Cros.Obj.No.12 of 2014

                     1.Union of India,
                       rep. by the Secretary,
                       Ministry of Defence (DP & S),
                       Sena Bhawan, New Delhi – 11.

                     2.The General Manager,
                       Heavy Vehicles Factory,
                       Avadi, Chennai – 600 054.
                                                     ... Appellants in S.A.No.432 of 2006 &
                                                         Respondents in Cros.Obj.No.12 of 2014

Vs

Southern Alloy Foundaries (Pvt.) Ltd., Rep. by Sri S.Thiyagarajan, Chairman, 1-B, J.V.L. Towers, 117, Nelson Manickam Road, Chennai – 600 029. ... Respondent in S.A.No.432 of 2006 & Cross Objector in Cros.Obj. No.12 of 2014

PRAYER IN S.A.No.432 of 2006: Second Appeal filed under Section 100 C.P.C. against the Judgment and Decree dated 10.02.2004 by the Principal Judge, Chengalpattu reversing the judgment and decree passed in

https://www.mhc.tn.gov.in/judis/ S.A. No.432 of 2006 & Cros.Obj.No.12 of 2014

O.S.No.381 of 1992 dated 16.08.1992 passed by the Sub Court Poonamallee.

PRAYER IN CROS. OBJ.No.12 of 2014: Cross Objection filed under Order XLI Rules 22 of Code of Civil Procedure against the Judgment and Decree on the file of the Principal District Court at Chengalpattu partly reversing the Decree and Judgment dated 16.08.2002 made in O.S.No.381 of 1992 on the file of the Sub-ordinate Court at Poonamallee.

For Appellants in S.A.No.432 of 2006 & for respondents in Cros. Obj.No.12 of 2014 : Mr.B.Sudhir Kumar

For Respondent in S.A.No.432 of 2006 & for cross objector in Cros. Obj. No.12 of 2014: Mr.S.Murugaiyan

COMMON JUDGMENT

This second appeal has been filed by the Appellants aggrieved by the

Judgment and decree dated 10.02.2004 passed by the lower appellate court

viz., the Principal District Court, Chengalpet in A.S.No.71 of 2003 which

has reversed the findings of the Tribunal in O.S.No.381 of 1992 by partially

decreeing the suit in favour of the respondent/plaintiff.

https://www.mhc.tn.gov.in/judis/ S.A. No.432 of 2006 & Cros.Obj.No.12 of 2014

2. The Appellants are the defendants in the suit O.S.No.381 of 1992

before the Subordinate Court at Poonamallee and the respondent is the

plaintiff therein. The respondent/plaintiff filed a suit for recovery of a sum

of Rs.41,276.40 together with interest and costs against the

Appellants/defendants for the non-payment for the supplies made by them.

The defence of the Appellants/defendants in the suit was that the

respondent/plaintiff supplied the materials belatedly and therefore, they are

liable to pay the liquidated damages for the delayed supply and further, it is

their case that in respect of another purchase order placed by them with the

respondent/plaintiff, they failed to supply and has also suppressed the said

fact in the plaint. The Trial Court by its Judgment and Decree dated

16.08.2002 in O.S.No.381 of 1992 dismissed the suit filed by the

respondent/plaintiff agreeing with the defence raised by the

defendants/Appellants.

3. Aggrieved by the Judgment and Decree dated 16.08.2002 passed

by the Trial Court in O.S.No.381 of 1992, the respondent/plaintiff preferred

an appeal before the Principal District Court, Chengalpet in A.S.No.71 of

https://www.mhc.tn.gov.in/judis/ S.A. No.432 of 2006 & Cros.Obj.No.12 of 2014

2003. By its Judgment and Decree dated 10.02.2004, the lower appellate

court viz., the Principal District Court, Chengalpet in A.S.No.71 of 2003

partially allowed the appeal filed by the respondent/plaintiff by decreeing

the suit in favour of the respondent/plaintiff for a sum of Rs.17,013.55 with

subsequent interest at 12% per annum on Rs.14,201.64 from the date of

plaint till the date of realisation with proportionate cost and the remaining

suit claim was disallowed. Aggrieved by the Judgement and Decree dated

10.02.2004 passed by the lower appellate court in A.S.No.71 of 2003, this

second appeal has been filed by the defendants in the suit.

4. At the time of admission of this second appeal on 15.06.2006, this

Court formulated the following substantial question of law:

“ Whether the lower appellate court is correct in interpreting clause 14(c)(ii) and (iii) of the terms of the contract dated 05.07.1999?”

5. Thereafter, the respondent/plaintiff has also filed a cross objection

before this Court in Cros.Obj No.12 of 2014 seeking payment of the

disallowed amount of Rs.24,262.85 against the Appellants/defendants.

https://www.mhc.tn.gov.in/judis/ S.A. No.432 of 2006 & Cros.Obj.No.12 of 2014

6. Admittedly there was a delay in the supply of materials by the

respondent/plaintiff to the Appellants as per the contract dated 05.07.1989

entered into between the Appellants/defendants and the respondent/plaintiff.

The contract dated 05.07.1989 which was marked as Ex.A3 also provides

for liquidated damages. In case of any delay, the respondent/plaintiff is

liable to pay damages to the Appellants.

7. The lower appellate court in its judgment and decree dated

10.02.2004 passed in A.S.No.71 of 2003 has rightly taken into

consideration the liquidated damages clause found in the contract and has

rightly deducted a sum of Rs.16,774.76/- from and out of the total bills

raised by the respondent/plaintiff against the Appellants/defendants under

the contract dated 05.07.1989 and has awarded only the balance amount of

Rs.17,013.55 together with interest at 12% per annum on Rs.14,201.64 till

realisation with proportionate cost. The existence of liquidated damages

clause under the contract dated 05.07.1989 which was marked as Ex.A3

before the Trial Court is not disputed by the respondent/plaintiff, as seen

from the evidence available on record. However, it is the case of the

https://www.mhc.tn.gov.in/judis/ S.A. No.432 of 2006 & Cros.Obj.No.12 of 2014

respondent/plaintiff as seen from the cross objection viz., cros.obj.No.12 of

2014 filed before this court that they are not responsible for the delay in

supply of the goods as it is only due to the fault of the

Appellants/defendants, there was a delay in effecting the supplies.But from

the materials available on record, there is no iota of evidence produced by

the respondent/plaintiff before the Trial Court or the lower appellate court

in support of their contention that only due to the fault of the

Appellants/defendants, there was a delay in the execution of the contract

dated 05.07.1989 which was marked as Ex.A3 before the Trial Court.

Therefore this court is of the considered view that the lower appellate court

has rightly rejected the contention of the respondent/plaintiff that he is

entitled for the entire suit claim and has rightly partly decreed the suit only

for a sum of Rs.17013.55 with subsequent interest at 12% per annum on

Rs.14,201.64 from the date of plaint till the date of realisation with

proportionate cost after adjustment of the sum towards liquidated damages

for the delayed supply. Hence, this court is of the considered view that there

is no merit in the cross objection filed by the respondent/plaintiff.

https://www.mhc.tn.gov.in/judis/ S.A. No.432 of 2006 & Cros.Obj.No.12 of 2014

8. As regards, the contention of the Appellants/defendants in this

appeal that the lower appellate court has committed an error by partly

decreeing the suit in favour of the respondent/plaintiff as according to

them, in respect of another contract, the respondent/plaintiff failed to supply

the goods for which the Appellants/defendants are entitled to claim

damages, has not been considered by the lower appellate court in

accordance with the settled contract is concerned, the same has been

adequately considered by the lower appellate court.

9. This Court has perused and examined the impugned lower

appellate court judgment wherein the contention of the

Appellants/defendants before the Court has been duly considered under the

said judgment. In paragraph 23 of the impugned lower appellate court

judgment, the court has observed that the contract under which the

Appellants/defendants claim that the respondent/plaintiff has committed

breach of contract is concerned, the said contract is a totally different

contract and is an independent one and therefore, the Appellants/defendants

cannot withhold any amount payable to the respondent/plaintiff under the

https://www.mhc.tn.gov.in/judis/ S.A. No.432 of 2006 & Cros.Obj.No.12 of 2014

contract dated 05.07.1989 which was marked as Ex.A3 and which is the

subject matter of the suit O.S.No.381 of 1992.

10. The findings of the lower appellate court on the contention raised

by the Appellants/defendants is a correct finding in the considered

view of this Court. Each and every contract has its own terms and

conditions and the parties are bound by those terms and conditions.

The contract for which the suit was filed by the respondent/plaintiff

is an independent contract and admittedly it is not connected with the

contract for which the Appellants/defendants claim that the

respondent/plaintiff owes money towards damages. The terms and

conditions of the contract dated 05.07.1989 (Ex.A3) which is the

subject matter of the suit O.S.No.381 of 1992 may be different from

the terms and conditions of the contract for which the

Appellants/defendants claim that the respondent/plaintiff owes money

towards liquidated damages. Both the contracts cannot be clubbed together

as their terms and conditions are independent of each other. The lower

appellate court has rightly considered the same and has rightly rejected the

contention of the Appellants/defendants. Therefore, this Court is of the

https://www.mhc.tn.gov.in/judis/ S.A. No.432 of 2006 & Cros.Obj.No.12 of 2014

considered view that there is no substantial question of law involved in this

second appeal as the lower appellate court has rightly interpreted clause

14(c)(ii) and (iii) of the terms of the contract dated 05.07.1999. Further

being factual issues which have been rightly considered by the lower

appellate court and there being no debatable issues of fact or law involved,

there is no merit in this second appeal. Accordingly, both the second appeal

and cross objection are dismissed, for the reasons stated above. No costs.

Consequently connected miscellaneous petition is closed.

05.07.2021 nl

Index: Yes/ No Internet: Yes/No Speaking Order/Non-speaking Order

To

1. The Principal District Court at Chengalpattu

2. The Sub-ordinate Court at Poonamallee

https://www.mhc.tn.gov.in/judis/ S.A. No.432 of 2006 & Cros.Obj.No.12 of 2014

ABDUL QUDDHOSE, J.

nl

S.A. No.432 of 2006 & Cros.Obj.No.12 of 2014

05.07.2021

https://www.mhc.tn.gov.in/judis/