JUDGMENT

RAY, J. :- Special leave granted. Arguments heard.

2. This is an appeal against the judgment and order passed in R.F.A. (O.S.) 3 of 1983 on March 14,1983 by the High Court of Delhi dismissing the Civil Writ Petition in limine against the judgment and decree rendered by Chawla, J. in Suit No. 50 of 1972 on Feb. 12, 1982.

3. The matrix of this case is stated hereunder:

The appellant M / s. Marwar Tent Factory is a firm having its registered office at Jodhpur (Rajasthan) and dealing in the manufacture and sale of tents and tarpaulins. The firm is a regular supplier of these goods to the defence services of India.

4. On March 13, 1968 tenders were invited for the supply of tents by the Directorate General of Supplies and Disposals, the respondent No. 2. Accordingly, the appellant submitted a tender which was accepted by the officer of the Directorate General of Supplies and Disposals on behalf of the President of India.. The said contract was of two kinds of tents Flies Inner and Flies Outer. The agreed rate for the Files Outer was Rs. 225/ per tent and quantity was 19,100. In accordance with the said terms of the contract the goods were to be inspected at the premises of the firm at Jodhpur and after the same being passed by the Inspector, the goods had to be despatched to the Commandant, C.O.D., Kanpur. It was further agreed between the parties that 95% of the price was payable on proof of despatch and production of the inspection note. The balance 5% was to be paid after receipt of the goods in good condition by the C.O.D., Kanpur.

5. On October 14, 1968, one consignment of 1500 tents was despatched to the C.O.D., Kanpur by the appellant under Railway receipt No. 502671 dated 14-10-1968 and 95% of the price was paid by demand drafts dated 17-10-1968 and 19-5-1969. The Commandant, C.O.D., Kanpur reported that 224 tents out of a sale consignment had not been received at Kanpur and consequently a sum of Rs. 51,912 (being the full price of those 224 tents inclusive of sales tax) was deducted from the amounts due to the appellant under another contract.

6. The appellant made repeated requests and sent repeated reminders for payment of the said sum of Rs. 51,912/ - from the respondent but without any effect. As such, the appellant filed a suit being Suit No. 50 of 1972 in the High Court at Delhi for recovery of the said principal sum as well as interest on the principal. The appellant further claimed interest on two other consignments as the price of the said consignments was paid after a great delay. The two consignments were of 700 and 1400 tents despatched on August 10, 1968 and August 27, 1968 respectively. Though 95% of the price was paid, the balance 5% amounting to Rs. 24,357/- was not paid till December 1, 1971 despite repeated requests and reminders. The said payment of Rs. 24,357/- was wrongfully delayed by about three years and a sum of Rs. 8,525 / - was, therefore, claimed as interest @ 12% per annum from 1-1-1969 to 1-12-1971 on the said amount. The total claim of the appellant was Rs.74,972 i.e. Rs.51,912/principal sum and Rs. 14,535/- as interest on this and Rs. 8,525 / - as interest on the sum of Rs. 24,357/- wrongfully withheld for three years.

7. A joint statement was filed by the respondents Nos. 1, 2 and 5 as their interest were identical. The defence was that 224 tents were received short under railway receipt No. 502671 and the sum of Rs. 51,912/ - was rightly deducted from the payment due to the appellant under other contracts.

8. The respondents Nos. 3 and 4 also filed a joint written statement stating inter alia that only 11 tents were delivered short under railway receipt No. 502671 for which the admitted liability was to the tune of Rupees 2,475/-. This sum had been paid to the C.O.D., Kanpur by debit adjustment.

9. T.P.S. Chawla, J. by his judgment and order dated February 12, 1982 though dismissed the claim of the appellant substantially but insofar as the amount of Rs. 2,475/ regarding the shortage of 11