( 1 ) WITH the consent of both the learned advocates, these matters are taken up for final disposal.

( 2 ) THE Appeal From Order No. 286 of 2002 is filed being aggrieved by the judgement and order dated 19. 6. 2002 passed by the learned 10th Joint Civil Judge (Senior Division), Vadodara below exhibit 5 in Special Civil Suit No. 405 of 2002.

( 3 ) APPEAL From Order No. 287 of 2002 is filed being aggrieved by the judgement and order dated 19. 6. 2002 passed by the learned 10th Joint Civil Judge (Senior Division), Vadodara below exh. 5 in Special Civil Suit No. 363 of 2002.

( 4 ) THE point involved in both these matters is common. The two suits are filed, one pertaining to Wanakbori Thermal Power Station, the other pertains to Gandhinagar Thermal Power Station. The facts in nutshell are that the appellants herein, MSTC Limited which is acting as a selling agent of Gujarat Electricity Board (hereinafter referred to as "the Board" for brevity) invited offers/ tenders for sale of 35,000 MTs of rejected coal of different lots, each of different weight, lying in the premises of Gandhinagar Thermal Power Station and to the extent of 76,000 MTs. , lying at Wanakbori Thermal Power Station. It is the case of the appellants herein that the offers were invited on "as is where is" basis and on "no complaint" basis. It is also the case of the appellants that the rejected coal is the coal which is rejected on Bowl Mill of the Board. This rejected coal is dropped from hopper on concrete floor and the same is transported to the rejected coal yard. The appellants have specifically pleaded that there is no question of the Board adding any foreign material like stone, sand and dust. The Board is a public undertaking and it cannot have an intention of deteriorating the material- the rejected coal by adding any foreign material. However, the rejected coal may contain some sand, dust or pieces of bricks.

( 5 ) TAKING the glance at facts, on 20. 9. 2001 tenders were invited; on 2. 11. 2001 order was issued in favour of the plaintiffs, details to be set out hereafter. Terms and conditions of the transaction between the parties were agreed upon as per the tender document, terms of payment were also agreed upon. The payment was to be received by the appellants in 9 monthly instalments, payable on 7th of each month. The plaintiff paid the first instalment on 7. 11. 2001, he also paid the second instalment on 7. 12. 2001. On 7. 12. 2001 the plaintiff requested the Board for increasing the working hours. As the instalment which fell due on 7. 1. 2002 was not paid, on 21. 1. 2002 MSTC Limited, the present appellants requested the plaintiff for payment of the third instalment. On 31. 1. 2002 the request for payment of third instalment was repeated. The appellants did not received the third instalment, by that time the fourth instalment became due on 7. 2. 2002 which was also not paid. On 5. 3. 2002 the Board requested MSTC Ltd. , the present appellants to take action for disposal of scrap for realising the blocked funds of the Board. On 6. 3. 2002 the Board requested the present appellants to take action for collection of money and also ground rent from the plaintiff. On 7. 3. 2002, fifth instalment became due which was also not paid.

( 6 ) IT was on 19. 3. 2002 that the present appellants informed the plaintiff that the contract is terminated and that the Earnest Money Deposit (EMD) is forfeited. On 21. 3. 2002 the appellants wrote to the Bank for encashment of Bank Guarantee. The Board also wrote to the plaintiff to pay up the outstanding three instalments. As no payment was made by the plaintiffs on 10. 4. 2002 the Board informed the plaintiff not to send vehicles for lifting the goods. On 24. 4. 2002 the plaintiff filed two suits. Following are the prayers made in Civil Suit No. 363 of 2002 :" (I) declare that the defendants have not sold the goods of quality, which was agreed to in the contract. (II) declare that the defendants have co