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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, J.
Tamun Impex Company Private Limited – Appellant
Versus
Ozone Projects Private Limited – Respondent
Civil Suit No. 553 of 2012
Decided On : 12-12-2018
Contract Act – Sections 73 and 74 - Prayer for mandatory injunction - Suit pertains to supply of Unplasticized Polyvinyl Chloride windows and doors - Defendant is in industry of property development and real estate - Defendant embarked upon a project of developing a mixed use Township in name and style Metrozone in Chennai which shall hereinafter be referred to as suit project for sake of brevity - Suit project involved construction of towers consisting of residential apartments - At time of inception of suit towers were approved and five towers were in proposal stage - Defendant issued a notice inviting tenders for supply of suit products for three basements and residential towers - It is submitted that each tower consists of ground appurtenant structures - It is not in dispute that plaintiff responded to aforesaid notice inviting tenders plaintiff was initially given work order for suit products for three towers and subsequently it was reduced to one tower - Plaintiff commenced supply which continued till first week of June - While it is plaintiffs complaint that defendant suddenly stopped receiving and refused to receive suit products sent by plaintiff for suit project it is defendants case that there was quality issues qua materials and installation/workmanship was poor resulting in termination of work order - Whether revised purchase order and original work order as revised are distinct and separate documents or do they constitute a composite contract between plaintiff and defendant? Whether there was valid termination of aforesaid revised purchase order and original work order as revised? Whether plaintiff is entitled to damages qua? What other reliefs parties are entitled to? - Held, Before Court commence this discussion on rival submissions for purpose of finding answers to four issues it is to be noted that prayer in plaint has already been extracted supra - It has also been set out supra that plaintiff is now only on alternate prayer of damages of Crores besides costs as mandatory and permanent injunctive reliefs have become infructuous - To be noted this is stated position of plaintiff - This takes us to revised purchase does not in any manner alter obtaining position that are dovetailed - Only certain specifications and technical details contained in have been revised - Therefore it follows as a sequittur that certainly go together - It also has to be viewed in light of admitted/stated position of plaintiff that they did not merely supply materials but also embarked upon exercise of executing work by installing materials at site for suit project though through a contractor - Therefore cross reference in two exhibits or for that matter three exhibits namely read in conjunction with admitted position of plaintiff that they did carry out work of installing materials supplied under purchase order in site for suit project makes it clear that constitute one composite document - Our client states that in any event on account of quality issues our client has right to terminate contract as per Clause of Work Order without any Notice to you - Our client states that it has invoked said clause and material already supplied by you shall be installed by other vendors at your cost and remaining work also taken up by other vendors who have already commenced such work - An email of May states ? You are leaving us with no choice but to go to alternate vendors who are capable of delivering to our requirements in terms of time quality and cost - Appeal Dismissed
JUDGMENT :
M. SUNDAR, J.
1. There is a sole plaintiff and a sole defendant in the instant suit.
2. Factual matrix of the suit can be set out in a nutshell as facts are simple and not voluminous. In very simple terms, this suit pertains to supply of Unplasticized Polyvinyl Chloride (UPVC) windows and doors by plaintiff to defendant. The UPVC windows and doors shall hereinafter be referred to as "suit products" for the sake of convenience and clarity.
3. Defendant is in the industry of property development and real estate. Defendant embarked upon a project of developing a mixed use Township in the name and style "The Metrozone" in Chennai, which shall hereinafter be referred to as suit project for the sake of brevity. The suit project involved construction of 29 towers consisting of residential apartments. At the time of inception of the suit, 24 towers were approved and five towers were in the proposal stage. Defendant issued a notice inviting tenders dated 04.01.2012 for supply of suit products for three basements and 29 residential towers. It is submitted that each tower consists of ground + 16 appurtenant structures. It is not in dispute that plaintiff responded to the aforesaid notice inviting tenders, plaintiff was initially given the work order for suit products for three towers and subsequently, it was reduced to one tower.
4. Plaintiff commenced supply which continued till first week of June, 2012. While it is plaintiff's complaint that defendant suddenly stopped receiving and refused to receive suit products sent by plaintiff for the suit project, it is defendant's case that there was quality issues qua materials and installation/workmanship was poor resulting in termination of the work order.
5. In the aforesaid backdrop, this suit was presented on 24.07.2012 with a prayer for mandatory injunction to direct the defendant to purchase suit products according to the purchase order dated 08.02.2012 and amended purchase order dated 27.04.2012 with an alternative prayer to direct the defendant to pay a sum of Rs. 2,50,00,000/- as liquidated damages for breach of contract qua aforesaid purchase order and amended purchase order. Besides this prayer for mandatory injunction and alternative prayer for damages, there was also a prayer for permanent injunction to restrain the defendant from purchasing materials covered under the aforesaid purchase order and amended purchase order from any third parties. There was a prayer for costs and the usual residuary limb in the prayer paragraph.
6. The prayer paragraph in the plaint is paragraph No. 18 and the same reads as follows:
"18. The plaintiff prays for a decree and judgment:
(a) For a mandatory injunction directing the defendant to purchase materials as per purchase order No. OZ/MZ/PO1/PO/11-12/049 dated 8.2.2012 and as amended by purchase order No. OZ/MZ/PO1/PO/11-12/049 dated 27.4.2012, alternatively to direct the defendant to pay a sum of Rs. 2,50,00,000/- as liquidated damages for breach of contract under purchase order No. OZ/MZ/PO1/PO/11-12/049 dated 8.2.2012 and as amended by purchase order No. OZ/MZ/PO1/PO/11-12/049 dated 27.4.2012
(b) For permanent injunction restraining the defendant their men, agent or servant from purchasing the materials covered under purchase order No. OZ/MZ/PO1/PO/11-12/049 dated 8.2.2012 and as amended by purchase order No. OZ/MZ/PO1/PO/11-12/049 dated 27.4.2012 from any third person.
(c) For costs of the suit.
(d) For such further or other orders as this Hon'ble Court may deem fit and proper on the facts and circumstances of the case and render justice?
7. When this suit was taken up for arguments, Mr. Raja Kalifulla, learned Senior Counsel on behalf of counsel on record for plaintiff and Mr. P.V. Balasubramaniam of M/s. BFS Legal (Law Firm) on behalf of sole defendant were before this Commercial Division.
8. It was submitted by learned Senior counsel for plaintiff on instructions that the prayer for mandatory and permanent injunctions have become infructuous an
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