Rajasthan High Court
M/S Tirupati Re-Treaders vs M/S Atlantic Agencies on 10 February, 2022
Bench: Manoj Kumar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Regular First Appeal No. 109/1994
M/s Tirupati Re-Treaders, Partnership Firm, Mungaska Delhi
Road, Alwar through its Partner Shri Mohan Lal Gupta Son of
Shri Dwarka Prasad Gupta, resident of Gram Babi Tehsil Khetri,
District Jhunjhunu.
----Plaintiff-Appellant
Versus
M/s Atlantic Agencies, Mirza Ismail Road, Jaipur.
----Defendant-Respondent
For Appellant(s) : Mr. Bihari Lal Agarwal through VC
For Respondent(s) : Mr. Ajay Agarwal through VC
HON'BLE MR. JUSTICE MANOJ KUMAR VYAS
Judgment
Reserved on : 24/01/2022
Date of Pronouncement : 10/02/2022
This regular first appeal under Section 96 r/w Order 41 Rules
1 and 2 of CPC has been filed against the judgment and decree
dated 06.04.1994, passed by the Additional District and Sessions
Judge, Jaipur City, Jaipur in Civil Suit No.34/1993, whereby the
suit of the plaintiff has been dismissed.
According to brief facts of the case, the plaintiff-appellant
filed a civil suit against the defendant-respondent for recovery of
Rs.76,100/-. It was alleged in the plaint that plaintiff firm was in
need of an Air Cooled Kriloskar Power Diesel Generating Set for its
business, therefore, the plaintiff firm demanded quotation of a
generating set. The defendant firm issued a proforma bill for
Rs.1,60,000/- against which the plaintiff-appellant deposited a
(2 of 4) [CFA-109/1994]
sum of Rs.15,000/- with the defendant-firm. An acceptance letter
was issued by the respondent on the same day after receiving
Rs.15,000/- as part payment of the price. Balance price was
required to be paid at the time of delivery. The cost was F.O.R. at
Alwar. The delivery of the generating set was to be given by the
respondent immediately but the defendant-respondent did not
perform its part of the agreement and meanwhile, price of the
generating set started rising. The respondent failed to deliver the
generating set as per the agreement, despite several oral and
written reminders from the plaintiff-appellant. Hence, the suit was
filed for recovery of the part payment deposited with the
respondent and the difference of cost of the generating set with
interest. The defendant-respondent filed written statement in
which it was stated that the delivery of the goods was to be made
in Jaipur and not in Alwar and the plaintiff firm did not pay the
rest of the price money along with 'C' Form which was to be given
at Jaipur. Therefore, the suit was not liable to be dismissed. The
learned trial court framed the following issues on the basis of
pleadings :-
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ds :i esa ;g nkok oknh dh vksj ls is'k fd;k\
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vyoj nh tkuk r; gqbZ Fkh\
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dh ,oa blfy, D;k oknh izfroknh ls 15][email protected]& #i;s ,MokUl]
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ds ewY; dk vUrj izkIr djus dk vf/kdkjh gS\
4- vk;k lafonk Hkax djus dk nks"kh oknh gS ,oa D;k blhfy, oknh dk nkok
[kpsZ lfgr [kkfjt gksus ;ksX; gS\
5- vuqrks"k\ß
(3 of 4) [CFA-109/1994]
After hearing both the parties, the learned trial court
dismissed the suit filed by the plaintiff-appellant. The learned trial
court held that the plaintiff was under an obligation to pay the
remaining price of the generating set by 05.04.1990 and it was
also the duty of the plaintiff-appellant to deliver 'C' Form after
signing it, but the plaintiff had erred in the performance of this
obligation. Therefore, the plaintiff-appellant was not entitled to the
part payment of price, interest and the difference of cost of goods.
The learned trial court also came to the conclusion that the
loss caused to the defendant-respondent due to non-performance
of the part of agreement by plaintiff-appellant was greater than
the advance amount, therefore, plaintiff-appellant was also not
entitled to receive back the advance payment deposited by them
with the respondent. In view of this, the suit was dismissed.
It is submitted on behalf of the plaintiff-appellant that the
delivery was to be made at Alwar. There was no agreement to
deliver the goods at Jaipur and the balance payment was to be
made at the time of delivery which was not done by the
defendant-respondent, therefore, the learned trial court has erred
in dismissing the suit.
Heard and perused the oral and documentary evidence
produced by the parties.
As per Ex.2, general terms and conditions which were
mentioned in the quotation for supply of goods included the
condition that quoted "prices are ex our godown, Jaipur". It was
also specifically mentioned that CST at the rate 4% inclusive in
above prices against Form 'C'. In absence of Form 'C', R.S.T. shall
(4 of 4) [CFA-109/1994]
be extra at the rate 5%. Thus, it is clear from Ex.2 that the quoted
prices were ex godown, Jaipur. Ex.5 also mentions a condition that
"payment to be made by 05.04.1990". Thus, a perusal of oral and
documentary evidence reveals that as per the agreement between
the parties, the goods were priced ex godown, Jaipur and the
plaintiff-appellant was required to pay the balance amount as well
as 'C' Form at Jaipur office of the defendant-respondent but the
plaintiff-appellant failed to discharge the performance of his part
of obligation under the contract, hence the plaintiff-appellant was
himself the defaulter in the performance of agreement between
the parties, therefore, the learned trial court rightly dismissed the
suit of the plaintiff.
No ground is made out for any interference in the impugned
judgment and decree of the learned trial court. The appeal is
devoid of any merit and is liable to dismissed.
Accordingly, the first appeal stands dismissed.
Pending applications, if any, also stand dismissed.
(MANOJ KUMAR VYAS),J
Hemant/17
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