IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 72 OF 1989 Maharashtra State Electricity Board & Anr. ...... ....Plaintiffs. V/s M/s.Panyam Cement & Minerals Ind. Ltd. ...... Defendant. Mr.K.H.Mody i/by M/s.Little & Co., Adv. For the plaintiffs. None For the defendants. CORAM: A.P.DESHPANDE, J. 2/5/08 ORAL JUDGMENT: Maharashtra State Electricity Board instituted a suit for recovery of a sum of Rs.6,31,512/- against the defendant. During the pendency of the suit plaintiff No.2 came to be impleded as party by name “Maharashtra State Power Generation Company Limited” as plaintiff No.2. As all the assets, liabilities and contract agreements etc. relating to the transmission undertakings of the plaintiff No.1 stood transferred and vested in plaintiff No.2 with effect from 6.6.05 consequent upon Maharashtra Electricity Reforms Transfer scheme on 2005 being framed the plaintiff No.2 has now become entitled to the relief sought in the suit by original plaintiff No.1. According to the plaintiff the defendant is a company registered under the provisions of 1 Indian Companies Act. For the purpose of business of the plaintiff from time to time it has to carry out construction of power projects and for allied purposes required cement supply. In the year 1985 cement was a controlled commodity regulated by Essential Commodities Act and Cement Control Order 1967. Under the scheme of order party interested in procuring cement had to obtain authorization from the office of the Cement Controller in the department of Industrial Development Maharashtra Industries, Government of India in favour of the supplier so as to ensure supply of cement. It is the case of the plaintiff that it obtained authorization on 15.7.85 in favour of the defendant for supply of 2000 m.t. Cement to the plaintiff. The said authorization issued by Government of India was initially valid for a period of four months. It thus postulates that the defendant had to supply cement of the given quantity to the plaintiff within the validity period of authorization. By a communication dated 18.7.85/6.8.85 the plaintiff informed the defendants that the defendant should arrange to supply 2000 m.t. Cement to the plaintiff at the various destinations mentioned in the said communication. The plaintiff deposited in advance the entire value of the order placed with the defendant. Under clauses 008 and 009 of the agreement/order placed by the plaintiff it is provided that the defendant has to pay the interest at the rate of 14% on the amount lying in advance with the defendant for the period exceeding 30 days from the date of receipt of advance. The plaintiff paid a sum 2 of Rs.18,60122/- to the defendant on 9.10.85 being the price of 2000 m.t. of cement. Pursuant to the order placed by the plaintiff defendant did dispatch certain quantities of cement to various destinations which is specifically mentioned in para 7 of the plaint. As the validity of the authorization was to expire on 15.11.85 the plaintiff obtained an extension of validity of authorization upto 2.1.1986 and accordingly informed the defendant that the validity of the authorization has been extended upto 2.1.86. According to the plaintiff against an order for supply of 2000 m.t. of cement defendant during the period of validity of authorization supplied only 1596.15 m.t. quantity of cement. Thus for recovery of amount of the quantity which was not supplied the instant suit has been filed making an additional claim for interest at the rate of 14% p.a. on delayed supply beyond period of 30 days. Neither written statement is filed nor the defendant is contesting the suit. Hence the only issue is : Whether the suit filed by the plaintiff should be decreed? The plaintiff has examined its witness by name Shri Chandrakant Laxmanrao Kayarkar working as Executive Engineer (Gen.St.-IV) with the Plaintiff-company. He has deposed that he is conversant with the facts of the present case. He has affirmed the contents of the affidavit of examination in chief. The witness has deposed that all the original documents on which the suit claim is based have been either lost or destroyed in the flood and despite best efforts to search the originals same were not traced. Hence to substantiate the claim 3 copies of documents are placed on record which are maintained by the plaintiff in the ordinary course of business. The evidence of the said witness has gone unchallenged as defendant has not contested the matter. The claim of the plaintiff stands established by evidence of the witness and hence decree need to be passed in favour of the plaintiff No.2 and against the defendant. Hence following order is passed: The defendant is directed to pay an amount of Rs.6,21,512/- to the plaintiff together with interest at the rate of 14% p.a. On Rs.4,23,227 from the date of filing of the suit till realization. Suit is decreed with costs. Decree be drawn accordingly. 2.5.2008 4