1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.2932 OF 1997 The Board of Trustees of the Port of Mumbai ..Plaintiff. Vs. M/s. J. Ishwarlal & Co. ..Defendant. .... Mr. U.J. Makhija with Mr. Parag Khandhar i/b Mulla & Mulla & CBC for the Plaintiff. Mr. Anil Chauhan i/b N.N. Vaishnawa & Co. for the Defendant. .... CORAM : DR. D.Y. CHANDRACHUD, J. 26th August, 2009. P.C. : 1. The suit has been instituted by the Port Trust for the recovery of a sum of Rs.3,07,412.10 together with interest. The Plaintiff floated a tender in 1993 for the purchase of material for uniforms of different sizes and length as prescribed in the tender. The Defendant submitted a bid on 22nd February, 1994. The tender Committee submitted a report dated 13th April, 1994 for acceptance of the tender of the Defendant which was approved by the Deputy Chairman of the Port Trust on 19th April, 1994. 2 By a letter dated 30th April, 1994 the Plaintiff communicated the acceptance of the tender to the Defendant. 2. The Defendant failed to supply the goods ordered. By a letter dated 18th August, 1994 the Defendants were called upon to deliver the material within two weeks failing which it was stated that the contract would be cancelled and the outstanding quantity would be purchased at the risk and cost of the Defendant. The Defendants having failed to supply the material, the Plaintiff issued a fresh purchase tender. In response thereto the bids which were received were scrutinized and the bid of M/s. Kumar Enterprises came to be accepted. On account of the risk purchase effected by the Plaintiff, the Plaintiff had to incur expenses of Rs.32,73,400/-. The case of the Plaintiff is that if the Defendant had supplied the goods under the contract, the Plaintiff would have paid to the Defendant a sum of Rs. 30,94,484.90. Extra expenses were therefore incurred of Rs.1,78,915.20. The Plaintiff has also claimed store supervision charges of Rs.37,572.20. The total claim is in the amount of Rs.2,16,487/-. Letters of demand were addressed to the Defendant on 23rd January, 1995 and 5th October, 3 1996 despite which payment has not been made. 3. The Defendant has been served with the writ of summons. Though the Defendant has entered appearance through an advocate, no written statement has been filed in the suit of 1997. The suit was transferred to the list of undefended suits on 31st March, 2005 by the Prothonotary and Senior Master. Even thereafter no written statement has been filed. On 24th June, 2009 and 22nd July, 2009 the Plaintiff was directed to file the original documents together with the affidavit of evidence. On both the dates of hearing, the advocate appearing for the Defendant was present. Though a sufficient opportunity has been granted to the Defendant to take out an appropriate application for filing a written statement, no application has been taken out nor is the written statement prepared even as of date. 4. In the absence of any written statement, the claim of the Plaintiff as contained in the Plaint has not been controverted. The claim has duly been established on the basis of the affidavit of evidence of the Deputy 4 Controller of Stores dated 1st August, 2009. The affidavit contains a reiteration of the facts which have been referred to in the earlier part of the order. The Plaintiffs have established (i) the existence of the contract with the Defendant; (ii) the obligation assumed by the Defendant under the contract to supply the contractual material to the Plaintiff; (iii) the breach on the part of the Defendant in fulfilling the terms of the contract; (iv) the floating of a new tender by the Plaintiff in exercise of its right of risk purchase; (v) The incurring of additional costs towards the risk purchase. A compilation of the original documents has been filed. The claim has been duly proved. The suit shall accordingly stand decreed in terms of prayer clauses (a) and (b) with the modification that the Plaintiff will be entitled to interest at the rate of 6% per annum on the principal sum from the date of the suit until payment or realization. *****