IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION. ORDINARY ORIGINAL CIVIL JURISDICTION. ORDINARY ORIGINAL CIVIL JURISDICTION. SUIT No.1422 of 1989. SUIT No.1422 of 1989. SUIT No.1422 of 1989. WITH WITH WITH NOTICE OF MOTION No.4582 of 2007 NOTICE OF MOTION No.4582 of 2007 NOTICE OF MOTION No.4582 of 2007 Maharashtra State Road Transport Corporation, having its office at Maharashtra Vahatuk Bhuvan, Bombay 400 008. ..Plaintiffs. ..Plaintiffs. ..Plaintiffs. Versus. 1. Gujarat Steel Tubes Ltd. having its registered office at Bank of India Building, Baroda, Ahemedabad 380 001 and a branch office at 712/715 Tulsiani Chambers, 212, Nariman Point, Bombay 400 021. 2. The Provisional Official Liquidator to the High Court of Gujarat at Ahmedabad, having his office at 6, Navyug Colony, near Gujarat Vidhayanath, Ahmedabad. ..Defendants. ..Defendants. ..Defendants. CORAM: V. C. DAGA, J. CORAM: V. C. DAGA, J. CORAM: V. C. DAGA, J. DATED: 21.02.2008. DATED: 21.02.2008. DATED: 21.02.2008. Mr Vishal Bodke, i/b Chitnis Vaithy & Co. Advocate Mr Vishal Bodke, i/b Chitnis Vaithy & Co. Advocate Mr Vishal Bodke, i/b Chitnis Vaithy & Co. Advocate for the Plaintiff. for the Plaintiff. for the Plaintiff. None for the Defendants. None for the Defendants. None for the Defendants. JUDGMENT. JUDGMENT. JUDGMENT. -------- 1. Heard learned counsel for the plaintiffs. ( 2 ) 2. None for the defendants. 3. The plaintiffs have filed the suit for recovery of Rs. 20, 32, 247.86 with interest thereon from the date of suit till realization of the decretal amount. The plaintiff-M.S.R.T.C. is a statutory body corporate. Defendants are manufacturer of steel and accessories. The plaintiffs for the purpose of running passenger transport in the State of Maharashtra are using various buses. The plaintiffs purchase the chasis, fabricate and construct body on the chasis. As such, they were in need of manufacturing steel tubes, ERW or CEW confirming generally to specification ISS No.3601 of 1966 Grade 17 made of cold rolled CA sheets as per IS 513 grade D. The contracted goods were required by the plaintiffs at its work shop at Dhapodi-Pune, Aurangabad and Nagpur. 4. The plaintiffs had invited offers by way of tenders for supply of contracted goods. The defendants’ offer was accepted and accordingly on or 3.2.1986 Rate Contract No. 424/1985-86 was executed between the plaintiffs and the ( 3 ) defendants. Relevant clauses of which are reproduced in paras 5, 6 and 7 of the plaint. It appears that under the erroneous assumption that the first, second and third rate contracts are successfully executed by the defendants. The plaintiffs discharged performance bank guarantee given by the defendants. However, sometime in the month of June, 1988 when the accounts of the plaintiffs were being audited it was brought to the notice that the defendants from time to time and on several occasions delivered M.S. Tubes, ERW or CEW types confirming to ISS No. 3601 of 1966, grade 17 and subject to passing flattening and bending tests prescribed therein for item Nos. 2 and 3 and for item No.1, IS specification is IS-513-D made out of C.R.C.A. sheet in respect of contracted goods and they were paid price of the contracted goods in performance of the obligations by the defendants under the said contract. Thus, case of the plaintiffs is that the defendants had effected delivery of the inferior quality of goods in breach of the said contracts, fraudulently, and has concealed the fraud and relevant documents in that behalf by the plaintiffs. Consequently, the plaintiffs wrote a letter to the defendants bringing this ( 4 ) fact to their notice but the defendants refused to accept the claim made by the plaintiffs. Consequently, the plaintiffs were required to file this suit for the recovery of their dues as stated herein. 5. On being served with the suit summons, the defendants though appeared and filed written statement; wherein, they denied claim of the plaintiffs. The defendants in their written statement pleaded estoppel against the plaintiffs for having accepted goods and also pressed into service doctrine of waiver for giving up their right in respect of the invoices raised by the plaintiffs or the goods supplied to the plaintiffs. The defendants also alleged that the plaintiffs have not set up the suit claim. 6. Considering rival pleadings of the parties on 26.9.2007 the issues were framed in the absence of the defendants since the defendants chose not to appear through any Advocate. The burden of first three issues lies on the plaintiffs; as to whether the goods supplied by the defendants to the plaintiffs under through contract were of inferior quality ( 5 ) and that the defendants fraudulently committed breach of contract and as to whether the plaintiffs are entitled to suit claim. Whereas burden of issue Nos. 4 to 7 lies on the defendants. 7. It appears that during the pendency of the suit, the Provisional Liquidator came to be appointed by the High Court of Gujarat since the defendant no.1 was facing winding up proceeding. Consequently, provisional official liquidator was employed as the defendant no.2. However, he also chose to remain absent and did not defend the suit. 8. The plaintiffs have filed affidavit of evidence duly affirmed by one Shri T. L. Palwe, Officer Incharge of Stores and Purchase and also filed documents in support of their claim. Some of the documents are photostate copy; whereas, some of the documents are in the form of original correspondence. In one of the letters dated 25.10.1988 written by the defendants "Gujarat Steel Limited" tried to justify their supplies. However, in their subsequent letter dated 17th October, 1988 the defendants did not accept that ( 6 ) they have supplied material against some specific purchase order after taking permission from the works unit of the plaintiffs. They went on to say that they are agreeably to proper production in price for the consignment of tubes out of H.R. materials. However, it appears that thereafter no steps were taken by the defendants to satisfy their claim set up by the plaintiffs. 9. The plaintiffs have filed affidavit of evidence and they proved the documents on record. None of the defendants are represented by any Advocates nor by any responsible officer. They did not cross-examine plaintiff’s witness. Under these circumstances the statements of the plaintiff’s witness made on oath as well as the documents filed on record went unchallenged. The plaintiff-Corporation, therefore, entitled for the suit claim in toto with costs. 10. In the result, the suit is decreed in terms of prayer clause (a) excluding bracketed portion with interest thereon @ 10% per annum. Hence, the following order. ( 7 ) ORDER ORDER ORDER ----- (i) The suit is decreed in terms of the prayer clause incorporated in the plaint. (ii) The defendants do pay to the plaintiffs Rs.20,32,247.86 ps. with interest thereon @ 10 % per annum from the date of the suit till realization of decretal amount in full and final with costs. (iii) Decree be drawn in terms of this order. (iv) Notice of Motion No.4582 of 2007 stands disposed of. JUDGE. JUDGE. JUDGE.