IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 AS.No. 296 of 1998(D) -------------------- OS.107/1995 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT(S): ---------------------- M/S. COCHIN REFINERIES LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT HAVING ITS REGISTERED OFFICE AT P.B.NO.2, AMBALAMUGHAL - 682 302. BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE RESPONDENT(S): ---------------------- 1. M/S. VISHAL ENGINEERING WORKS REGD. OFFICE AT 16, SWASTIK INDUSTRIAL ESTATE 1ST FLOOR, VIDYANANGARI MARG, SANTACRUZ (EAST), BOMBAY 400 098. 2. MR. SANTLAL BHOJANIA, PARTNER, M/S. VISHAL ENGINEERING WORKS REGD. OFFICE AT 16 SWASTIK INDUSTRIAL ESTATE, 1ST FLOOR, VIDYANANGARI MARG, SANTACRUZ (EAST), BOMBAY 400 098 3. MR. MOHANKUMAR BHOJANIA, PARTNER, M/S. VISHAL ENGINEERING WORKS REGD. OFFICE AT 16, SWASTIK INDUSTRIAL ESTATE 1ST FLOOR, VIDYANANGARI MARG, SANTACRUZ (EAST), BOMBAY 400 098. 4. MR. JAYASHREE BHOJANIA, PARTNER, M/S. VISHAL ENGINEERING WORKS REGD. OFFICE AT 16, SWASTIK INDUSTRIAL ESTATE 1ST FLOOR, VIDYANANGARI MARG, SANTACRUZ (EAST), BOMBAY 400 098. AS.No. 296 of 1998(D) : 2 : 5. MRS. BALA R. BHOJANIA, PARTNER, M/S. VISHAL ENGINEERING WORKS REGD. OFFICE AT 16, SWASTIK INDUSTRIAL ESTATE 1ST FLOOR, VIDYANANGARI MARG, SANTACRUZ (EAST), BOMBAY 400 098. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI.K.NARAYANAN SRI.PAULSON M.J. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON 24/06/2009 DELIVERED THE FOLLOWING: M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - A.S. NO: 296 OF 1998 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th Day of June, 2009. JUDGMENT This appeal is filed by the plaintiff in O.S 107/95 on the file of Sub Court, North Parur, Respondents are defendants in the suit. That is a suit for damages for the supply of defective materials. The case of the plaintiff is briefly as follows: 2. The plaintiff placed a purchase order dated 19.6.1991 for supplying of certain materials as per the specifications agreed between the parties. The materials were supplied by the 1st defendant and they had obtained the payment from the plaintiff. The materials when verified were found to be all inferior quality and defective. The plaintiff informed the defendant about the rejection of goods and the defendant agreed that the goods were defective and that they would supply materials as per this specification. Several correspondence followed but the defendants A.S. NO: 296 OF 1998 : 2 : did not take any steps to supply the materials as ordered by the plaintiff. Hence the claim for the plaint amount. 3. The defendants contended that the plaintiff was satisfied about the goods and had made the payment. It was further contended that they never undertook to replace the materials and if the goods were defective it should have been returned to the defendants. The defendants, therefore, denied their liability to pay the amount. 4. In the Sub Court, PW1 was examined and Exts. A1 to A16 were marked. On considering the evidences, Sub Court dismissed the suit with costs. Against that judgment and decree, the plaintiff filed this appeal. 5. Heard the learned counsel for the appellant and respondents. 6. Learned counsel for the appellant submitted that court below went wrong in dismissing the suit especially when the defendants undertook to replace the defective materials. A.S. NO: 296 OF 1998 : 3 : 7. There is no dispute that the plaintiff company called for quotation for supplying valve, suction assembly for HP cylinders as per specifications entered in the Tender document as well as Purchase Order and the defendants submitted their quotation which was accepted by the plaintiff and an order dated 19.6.91 was issued for supply of the items. The defendant company supplied the articles and payment was also effected. According to the plaintiff after receipt of the articles, some defect was noticed and therefore it was rejected. In Ext. A1, Purchase order, there is no specifications with regard to the size or any other conditions of the materials. Ext. A5 is the copy of the letter showing the defects stating that the size of the materials supplied is different and hence rejected. Ext. A 6 is the copy of the letter dated 5.5.92 issued by the plaintiff to the first defendant stating that since the size of two numbers of valves is different, the plaintiff is rejecting the articles and requested first defendant to arrange the replacement as per A.S. NO: 296 OF 1998 : 4 : the order. Ext. A7 is the copy of letter dated 6.6.92 issued by the first defendant to the plaintiff requesting the plaintiff to return the rejected materials which is essentially need by defendant's Quality Control Section to go into the reasons of rejection and to ensure that same defects do not repeat. Ext. A8 is the copy of the letter dated 27.7.92 issued by the plaintiff to the first defendant stating that the plaintiff will send back the rejected materials only after getting replacement as the first defendant had already drawn the payment through Bank. Ext.A9 is another letter dated 29.4.93 issued by the plaintiff repeating the same thing. Ext.A 10 is the the letter dated 19.5.93 issued by the first defendant to the plaintiff stating that the first defendant is prepared to arrange the despatch of the materials within 15th June. Ext.A11 is the copy of the letter dated 9.3.93 issued by the plaintiff asking first defendant to supply the materials immediately. Ext. A 11 letter is followed by Ext.A12 telegram. Ext.A 13 is the letter dated 21.8.94 issued by the A.S. NO: 296 OF 1998 : 5 : plaintiff asking first defendant to return Rs.60,734.72. Ext.A15 is the reply notice. Immediately after the receipt of the reply notice, the plaintiff filed the suit in order to save the limitation. Ext.A16 is the letter dated 7.7.95 sent by the first defendant after the filing of the suit stating that the material is ready and they are going to supply them to the plaintiff and that the plaintiff may there after return the defective materials. The first defendant also undertook to bear the cost of the filing of the suit. In A.1 order, the specific measurement of the articles to be supplied by the first defendant was not mentioned. As per the terms and conditions, the defects are to be notified within 14 days from the date of receipt of articles. The invoice is dated 19.2.92 and the plaintiff failed to inform the defect within 14 days. The plaintiff informed about the defects only after three months. 8. As observed by the Learned Sub Judge, before taking delivery, the plaintiff company ought to have sent their officers to A.S. NO: 296 OF 1998 : 6 : the factory premises of the defendant's company for inspection of materials, for such a right, is mentioned in Ext.A2 Purchase Order. The articles are still with the plaintiff. If the plaintiff had returned the defective materials, the defendants would have rectified the defects and supplied new materials. 9. If the materials are rejected, the plaintiff should have intimated immediately, within 14 days from the date of delivery. If the materials were defective, the plaintiff out to have rejected the materials at the site of delivery itself. As observed by the Learned Sub Judge, there were several correspondence between plaintiff and defendants and defendants asked the plaintiff to return the rejected materials. The plaintiff is keeping the goods with them without returning back the materials and therefore the plaintiff is not entitled to get any amount from the defendants as damages. Therefore, the Learned Sub Judge, is justified in dismissing the suit. Hence this appeal is liable to dismissed as it is without A.S. NO: 296 OF 1998 : 7 : any merits. Accordingly the appeal is dismissed. The Judgment and Decree in O.S. 107/95 in the file of Sub Court of North Parur is confirmed. The parties are directed to suffer their respective costs in this appeal. M. L. JOSEPH FRANCIS, JUDGE. dl/