The time was not the essence of the contract and the property in goods was transferred to the buyer. The defendant failed to retire the document from the bank and did not get actual delivery of the goods. The plaintiff was entitled to claim the price of the goods, interest, and notice charges.

JUDGMENT :

A.P. THAKER, J.

1. The appellant (original defendant) has preferred this Appeal under Section 96 of the Civil Procedure Code against the judgment and decree dated 29.9.1995 whereby the Suit filed by the respondent-original plaintiff has been decreed with interest.

2. At the outset, it is observed that while dictating the order, it was found that the oral as well as documentary evidence were destroyed by the trial Court and no such evidences are available on original Suit. Therefore, learned advocates for the parties were requested to ensure that if they have any certified copy of the oral as well as documentary evidence, then it may be produced in the matter. However, learned advocates for both the sides have submitted that they have no such Certified Copy with them, however, they have stated that the matter may be decided on the basis of the Paper-book supplied by the parties in present appeal. Accordingly, the present appeal is being disposed of after taking into account the Paper-book submitted by the parties in the matter.

3. For the brevity and convenience the parties will be referred to as Plaintiff and defendant as enumerated in the original suit.

4. It is the contention of the defendant that the plaintiff has instituted a summary suit no. 2339 of 1986 in the City Civil Court at Ahmedabad for principal amount of Rs. 66726.64 paise along with interest at the rate of 18% p.a. from 28.6.1983 to 23.3.1986 plus notice charges of Rs. 600/- aggregating to Rs. 1,00,200.64. It is contended that the plaintiff has filed Suit for the price of the goods (machine) said to have been delivered to the defendant as per the terms of the Agreement entered into between the parties dated 24.12.1982. According to the defendant, the plaintiff has not delivered the aforesaid machine in time as agreed between the parties. It is further the case of the plaintiff that the plaintiff is having office at Ahmedabad and the defendant had placed an order at Ahmedabad with the Plaintiff to manufacture and supply to the defendant the Hydraulic Power Unit with accessories and the defendant, who is having office at Ahmedabad, has paid Rs. 20,000/- as advance amount toward the order booked with the plaintiff. It is contended that the plaintiff has dispatched the hydraulic power unit through the transport operator M/s. Panchmahal Transport Company and the defendant was required to retire the documents on payment and obtain the delivery of the goods. It is also the case of the plaintiff that the goods in question was to be delivered to the defendant at Ahmedabad and the amount of the same is to be paid by the defendant at Ahmedabad but as per the request of the defendant the goods were despatched to the defendant's factory at Ankleshwar. As per the plaintiff, it has despatched the goods as per the agreement and it had reached the destination. But the defendant had failed to retire the documents by making the necessary payment. It is also case of the plaintiff that the plaintiff thereafter repeatedly requested the defendant to make the payment, but, the defendant has not complied with the terms of the agreement and thereupon the plaintiff issued Notice dated 30.4.1985 and called upon the defendant to make payment. It is also contended that as the Notice was not accepted by the defendant, the plaintiff was constrained to send the aforesaid notice on 29.5.1985 to the defendant's Office at Bombay. Thereupon, the defendant replied on 28.6.1995 wherein the defendant had agreed that an order was placed to the plaintiff for the supply of goods but it was contended in the Notice that the goods were to be delivered by April, 1983. It was also contended by the defendant that on account of late delivery, the defendant suffered the loss.

4.1 It is also contended by the plaintiff that it has to clarify the entire position in reply dated 5.7.1985, however, the defendant failed to comply with the plaintiff's reply dated 5.7.1985 calling upon the defendant to retire the d