THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Writ Petition No.13846 of 2009 ORDER: The 2nd respondent established Institutions of Information and Technology at Idupulapaya in Kadapa District, Basara in Adilabad District and Nuzividu in Krishna District, with an intake of 6,000 candidates, per year. The institutions are purely residential in nature. It wanted to acquire 7,000 mattresses for their use. The 1st respondent is a Government owned Corporation, undertaking the activity of procuring the equipment of different categories and running other related services. On a request made by the 2nd respondent, the 1st respondent issued a tender notice, dated 22.05.2008. The petitioner and certain others submitted the tenders. The offer made by the petitioner for supply of 7,000 mattresses at Rs.1,600/- per mattress and pillow with pillow cover, was found to be more competitive. Accordingly, the tender was accepted and the order was placed on 10.06.2008. The petitioner commenced supplies and delivered the entire quantity of mattresses. The cost of 2,290 mattress, being Rs.36,64,000/-, was paid. However, the cost of 4710 mattress was not paid, on the ground that they are not up to the prescribed specifications. The petitioner submits that, it made several representations to undertake repairs, if any, or to replace the defective mattresses, but the respondents have put all the mattresses, including those, that were said to be defective; to use, and thereby, it has become impossible for them to undertake any replacement, or the repair. It is urged that, once the respondents have accepted the entire quantity supplied by the petitioner, and put to use, the consideration thereof cannot be denied. The 1st respondent filed a detailed counter-affidavit. It is stated that large part of the material was found to be substandard, and in spite of the repeated reminders, the petitioner did not undertake the replacement, or repair. The copies of the letters, that were exchanged between the parties, are filed. Heard Smt.C.Jayashree Sarathy, learned counsel for the petitioner, Sri Padmanabha Rao, learned counsel for the 1st respondent, and learned Government Pleader for General Administration Department, for the 2nd respondent. It is a matter of record that the petitioner has emerged as the successful tenderer, for the supply of mattresses for use by the 2nd respondent. The 1st respondent acted as the agency to issue tender notice and to process the purchase orders. After the purchase order was placed upon the petitioner on 10.06.2008, it commenced supplies and delivered the entire quantity of 7,000 mattresses and pillows to the respondents. In case the material supplied by the petitioner, in its entirety, or in part, was defective, or was found to be not up to the specified standards, it was always open to the respondents to return the same to the petitioner. For one reason or the other, that did not take place, and all the mattresses were put to use. Across the Bar, it is stated that, before the mattresses were put to use, as many as 290 were replaced. This only shows that the petitioner was very much conscious of its obligation, that the material of proper quality is supplied. There would have been scope for the respondents to replace the other mattresses also, had they not been put to use. Once the mattresses are in use, for the past more than one year, they cannot be expected to be replaced. On behalf of the respondents, it is contended that the occasion to put the mattresses to use arose, on account of the fact that all the students were admitted, and there was no other material for them. Even if this is a distressing factor, the petitioner cannot be made to suffer. The material placed before this Court discloses that, substantial correspondence ensued between the parties, as regards the lack of proper quality of mattresses. Even the petitioner did not dispute the same seriously. Though the respondents may have the right to insist the repairs that became necessary within relatively short time after supplies, the petitioner had expressed its inability to do so, on account of the fact that it has discontinued its business. This Court is of the view that the interests of the petitioner, on the one hand, and that of the respondents, on the other hand, need to be protected. The respondents cannot be compelled to suffer the inconvenience, caused on account of the supply of defective material, which is said to be in a substantial part. Even now, the repairs have to be caused by engaging an agency, which naturally would need substantial amount. It is felt that the respondents can be compelled to pay 60% of the cost of the entire material supplied by the petitioner, duly allocating the rest of the 40% for repairs, or for purchase of new mattresses, to the extent they are totally damaged. Hence, the Writ Petition is partly allowed, directing that the respondents shall arrange payment of 60% of the cost of the material supplied by the petitioner, as per the agreement, within two months from today. If the amount is not paid, within that time, it shall carry interest at 9%, per annum. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated:18.01.2010. GJ