IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 AS.No. 290 of 1999(F) ------------------------- OS.1524/1994 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT/ DEFENDANT: ---------------------------------- KERala AGRIcultural UNIversity REPRESENTED BY REGISTRAR, VELLANIKKARA, THRIssur. BY ADV. SRI.N.D.PREMACHANDRAN, SC, AGRL.UNTY. RESPONDENT(S)/PLAINTIFF: ---------------------------------- M/S ARAFATH & ARAFATH ASSOCIATES, 110, WEST VENKATASWAMY ROAD, R.S. PURAM, COIMBATORE, REPRESENTED BY ITS MANAGING PARTNER M.A. SUBAITHA BEGUM, AGED 58, 110, WEST VENKATASWAMY ROAD, R.S. PURAM, COIMBATORE. ADV. SRI.SHAJI P.CHALY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 290 OF 1999 = = = = = = = = = = = = = = = Dated this the 1st day of January, 2009. J U D G M E N T This is an appeal preferred against the judgment and decree in O.S.1524/94 of the Subordinate Judge, Thrissur. It was a suit filed for realisation of an amount due to the plaintiff from the defendant, Kerala Agricultural University towards the value of materials supplied under the terms of the contract. The plaintiff had entered into an agreement, Ext.B1 with the defendant as per which it had undertaken to supply materials for a period of one year, i.e., from 1st May, 1993 to 30.4.1994. It is the case of the plaintiff that it had supplied materials covered by invoice Nos.7 and 9 dated 28.4.94 and the value of the materials come to Rs.35,231/-. It had been unlawfully withheld by the University and therefore the suit is instituted for realisation of the same. 2. On the other hand the University would contend that two indents were placed on 28.3.94 and 15.4.94 for A.S. 290 OF 1999 -2- supply of materials but the plaintiff failed to supply the same which forced the University to purchase materials from outside resulting in loss to the University and therefore as per the terms of the agreement it is entitled to appropriate the same and withhold the payment. 3. In the trial court Exts.A1 to A12 and B1 to B14 were marked. PW1 and DW1 were examined. The Court below decreed the suit repelling the contentions of the defendant in favour of the plaintiff. It is against that decision the defendant has come up in appeal. 4. The point that arises for determination is whether the plaintiff has committed any breach of terms of contract and by doing so has caused damages to the defendant which entitles the defendant to appropriate the amount. Point: 5. As per Ext.B1 agreement the plaintiff has agreed to supply materials from 1.5.93 to 30.4.94 to the University. As per clause (5) of Ext.B1 if the contractor defaults in due supply of all or any of the articles correctly and promptly as above, the University is at liberty to procure the same from elsewhere A.S. 290 OF 1999 -3- without canceling the contract and in such process if it incurs at a higher cost than the agreed rate that can be deducted by the University from the Contractor's bill or adjusted or otherwise realised from his security deposit or recover from him by other means. So there is an enabling provision in Ext.B1 agreement which entitles the defendant to appropriate if a breach of contract is committed by the plaintiff. 6. So the point that arises for determination in this case is that whether the defendant has placed two indents on 28.3.94 and 15.4.94 and the plaintiff has failed to supply materials on the basis of such indents. The case of the plaintiffs is to the effect that it has not received such an indent at all and therefore the question of supplying of materials or the breach of terms of contract does not arise. In support of the contentions the defendant had produced documents in the form of Exts.B3 and B5 which are the letters alleged to be addressed to the plaintiff for supply of materials. Ext.B3 is the copy of the said indent dated 28.3.94 whereby the orders are placed for supply of 10,000 kgs. of yellow maize and 5000 kgs. of wheat bran. Ext.B5 is the copy of indent dated 15.4.94 A.S. 290 OF 1999 -4- whereby the defendant has placed orders for supply of 15 tons of yellow maize and 6 tones of ground nut cake. Ext.B4 is a reminder. Exts.B8 to B13 are produced by the defendant to show that it had taken steps to purchase these materials from outside agency. Ext.B14 is the despatch register maintained by the University and the specific contention of the University and its witness is to the effect that an order has been placed and posted through certificate of posting and therefore it will conclude that there had been a despatch of the indent as contended by the University. I had meticulously perused Ext.B14 register. Whenever a material is sent by certificate of posting there is a typed paper attached to it to evidence the same. But when it comes to the indent dated 28.3.94 there is absolutely nothing to show that it had been sent by certificate of posting. So the very consideration of Ext.B14 and its contents would reveal that there is evidence to show that it has not been sent by certificate of posting. It is an important matter in a case of this nature to establish that the indent had been properly delivered to the defendant and under ordinary circumstances when an indent is placed and for a considerable A.S. 290 OF 1999 -5- length of time when there is no response from the person who is bound to supply articles certainly the authorities of the University would have contacted them for the reason that there is large supply of materials by the plaintiff to the University. Therefore it cannot be said that Ext.B14 is sufficient to discharge the burden placed on the defendant to prove that it had despatched the indent and that it had been received by the plaintiff. It has to be remembered that it is the requirement of the defendant that was sought to be made by placing such indent and certainly there would be some materials or action taken by them when they are not receiving it. It is not available in this case. Further for the supply of such materials we find that action is initiated by the University after the expiry of the terms of agreement under Ext.B1 i.e. only in the last week of May. All these show that all is not well with the case of the defendant. When it is so unless there is evidence which will clearly establish that the plaintiff in spite of receiving an indent had failed to supply materials, one cannot hold that the plaintiff has committed a breach. It is also to be remembered, after all, the plaintiff has demanded A.S. 290 OF 1999 -6- payment of amount for the materials which is supplied and utilized by the University. Therefore unless the breach of terms of agreement is established beyond doubt one cannot direct the plaintiff to forgo the value of the materials which it had supplied. Therefore I cannot find fault with the Court below for analyzing the materials in that aspect and the mere suspicion that just because an entry is made in the register it would have been received by the plaintiff cannot be accepted. Further the Court below has only granted reasonable interest as well in this case and there is no defect in the judgment of the trial court which calls for interference at the hands of this Court. Therefore the appeal lacks merit and it is dismissed. But under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 290 OF 1999 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 290 OF 1999 = = = = = = = = = = = J U D G M E N T 1st January, 2009.