PRANAB KUMAR CHATTOPADHYAY, J.

( 1 ) THIS appeal is directed against the judgment and decree dated 21st February, 1991 passed by the learned single Judge of this Court. Plaintiff filed a suit against defendant/appellant claiming damages for non-delivery of the ordered goods to the plaintiff in view of the difference in the contract price and the market price as on the due date for delivery of the goods before considering the arguments advanced on behalf of the parties, facts of this case are briefly noted hereunder.

( 2 ) THE plaintif No. 2, M/s. N. K. Industries, is a partnership firm which placed an order upon appellant/defendant for supply of High Tensile Galvanised Steel wire in the month of April, 1968. Admittedly the plaintiff No. 2 wanted to purchase from the appellant/defendant 500 M. Ton of High Tensile Galvanised Steel wire under certain terms and conditions which had been specifically mentioned in the written order dated 23rd April, 1968 placed by the said plaintiff No. 2 with the appellant/defendant. The price and delivery schedule was also specifically mentioned in the said written order.

( 3 ) IT has been alleged on behalf of the plaintiff that the delivery schedule as was agreed by and between the parties was not adhered to as a result whereof a considerable quantity of goods were not delivered to the plaintiff in terms of the agreement. On the basis of the agreed terms delivery of the material should have commenced by the 15th of June, 1968 and the material were required to be supplied @ 100 M. T. per month in regular installments of 25 M. T. per week.

( 4 ) ADMITTEDLY, defendant failed to deliver the goods as per the aforesaid schedule. But according to the plaintiff, by mutual consent of the parties, time schedule mentioned in the agreement for delivery of the material was expressly and/or impliedly waived and/or not given effect to.

( 5 ) ON 26th August, 1969 defendant asked the plaintiff to increase the price of the ordered material @ Rs. 275 per M. T. on account of increase of the price of High Carbonwire Rods by Hindustan Steel Limited. Plaintiff, however, in its written communication dated 1st September, 1969 disputed the aforesaid demand of the defendant for increase in the price of ordered goods referring to the contract as it was specifically provided in the contract that the price will remain firm through out the contract period. By the said letter plaintiff also requested the defendant to complete the delivery of the material at the original rate. It has been contended on behalf of the plaintiff that thereafter the plaintiff firm accepted the price increase as was suggested by the defendant and it communicated its decision to Mr. Lohia of the defendant company. The defendant supplied thereafter 3. 516 M. Tons of such material to the plaintiff No. 2 at the enhanced rate on 3rd October, 1969. Subsequent to the said period no material was supplied in spite of repeated demands made on behalf of the plaintiff. Plaintiff No. 2 by letter dated 8th July, 1971 called upon the defendant to effect supply of the balance material within 15 days from the date or receipt of the said letter but in the said letter it was specifically contended on behalf of the plaintiff that in case material is not supplied within 15 days from the date of receipt of the said letter then the plaintiff would arrange risk purchases on account of the defendant. The defendant neither replied to the said letter of the plaintiff nor did it supply the balance goods.

( 6 ) ACCORDINGLY, by letter dated 10th January, 1972 plaintiff served a notice on the defendant contending inter alia that the appellant had committed breach of contract by not supplying the balance goods in terms of the contract as a result whereof the plaintiff firm had suffered loss and damages to the extent of Rs. 8,21,321. 32 being the difference amount between the contract price and the market price which the appellant/defendant was liable to pay. Plaintiff called up

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