Vikramajit Sen,j. (Oral ).

( 1 ) THE facts which has led the parties into this litigation are that on 11. 4. 1989 the Tender of the Petitioner in respect of supply of Multimeters together with its "carrying Cases" was accepted by the respondents. As envisaged by the Acceptance of Tender (A. T.) the Security Deposit for a sum of Rs. 11,220 was duly furnished. The receipt of this sum stands admitted in terms of the letter of Respondent No. 1 dated 4. 1. 1990 The terms of payment are contained in Clause 18 (c) of the A. T. dated 11. 4. 1989 and this was in two stages - 95 per cent payment at the time of Inspection and Despatch and the remaining 5 per cent balance thereafter. It has been admitted that 88 Multimeters at the rate of Rs. 2400. 00 , valued at Rs. 2,11,200. 00 together with their Carrying Cases at the rate of Rs. 150. 00 , valued at Rs. 13,200. 00 thereby aggregating the total of Rs. 2,24,400. 00 were despatched on 26. 10. 1989. The delivery of these goods is not in dispute, but it is the case of the Respondent that this delivery was effected beyond the date envisaged in the A. T.

( 2 ) THE claims which fall for determination at this juncture were detailed in para 10 of the Statement of Claim before the Sole Arbitrator together with the reply filed thereto on behalf of respondent. Paragraph 10 reads as under:

( 3 ) THE claimant therefore is entitled for the following sums:-

( 4 ) RESPONDENTS demurrer to this claim appears to be based on the petitioner s/claimant s letter dated 21. 11. 1989 wherein a change of inspection site had been requested for by the latter to the consignee s premises where the goods had in fact already been delivered.

( 5 ) HAVING once accepted the goods contemplated by the A/t. I fail to appreciate any justification for the Respondent withholding the payment of their price. I have perused the counter statement filed on behalf of Respondents. It does not contain any claim on account of damages incurred by them as a consequence of the alleged late supply of the goods. The party preferring a claim for damages, must first prove that these damages have actually been suffered it. Even in those cases, where damages have been liquidated under the contract, the burden of proving that these liquidated damages reflect a realistic pre- estimate of the damages that have actually been suffered, lies on the party claiming damages. In this case, it is obvious that no damages have occurred to the respondents since none have been claimed. Claim No. 1.

( 6 ) AS is clear from the Award itself, the claim was for a sum of Rs. 2,20,640. 00 towards 95 per cent of the bill dated 6. 11. 1989. It is cryptically dealt with in the Award as follows:

"award - Claim No. 1 of the Claimant/contractor: It is disallowed on the following grounds:

1. As per letter dated 21. 11. 1989 of the Contractor/claimant the contract is not complete up to 21. 11. 1980. They have not filed any letter of amendment of A/t by Union of India.

2. Respondents/union of India have been under clause 18 and 18-A to withhold the amount from other A/ts. also. As per their letter dated 21. 8. 1990 the deduction was made under E. I.-7/1214".

( 7 ) I have already adverted to letter dated 26. 11. 1989. A perusal thereof will disclose that it was never the case of the claimant that the contract was not complete in the sense that an amendment to the A. T. was required. All that was asked for was the change of the venue of the inspection, that too for the "carrying Cases" only. I can only understand the first paragraph/sentence to be a statement of the contention raised, and not the finding of the Arbitrator. It should have been specifically stated by the Arbitrator than the claim was rejected. Even if it is assumed that the Arbitrator had arrived at the conclusion that the A/t was not complete, presumably meaning thereby that no contract had come into effect, this factor would not be an obstacle for the payment of the price of goods admittedly supplied to and used by

Click Here to Read the rest of this document