IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.11.2023 CORAM THE HONOURABLE Ms. JUSTICE P.T. ASHA S.A.No.277 of 2023 &

C.M.P.No. 8174 of 2023 The Superintending Engineer, Tamil Nadu Electricity Board, CEDC/ South, K.K. Nagar, Chennai – 600 078. ... Appellant Vs M/s.Ambica Gen Power Represented by its Proprietor Promod Kumar Dage, No.5, Bakers Street, 1^st Floor, Chennai – 600 001. ...

Respondent Prayer : The appeal is filed under Section 100 of the Code of Civil Procedure against the Judgement and Decree dated 10.12.2020 made in A.S.No.377 of 2018 on the file of XVII Additional Judge, City Civil Court, Chennai reversing the Judgement and Decree dated 28.06.2017 made in O.S.No. 5830 of 2011 on the file of the XVIII Assistant Judge, City Civil Court, Chennai.

For Appellant : Mrs. J.Hemalatha For Respondent : Mr. R.Anantha Ramakrishnan.

JUDGEMENT

The Tamil Nadu Electricity Board who was the defendant in the suit O.S.No.5830 of 2011 is the appellant before this Court challenging the Judgement in A.S.No.377 of 2018 reversing the Judgement and Decree in O.S.No.5830 of 2011 of the XVIII Assistant Judge, City Civil Court, Chennai. The facts are briefly set out herein below with the parties being referred to in the same rank as before the Trial Court.

2. The plaintiff had filed the above referred suit for recovery of a sum of Rs.4,87,755/- together with interest at 22 % per annum for the sum of Rs.3,11,002/- from the date of the plaint till the date of realisation. It is the case of the plaintiff that it is a proprietory concern dealing with copper enamel wires and electrical items. The defendant had invited tender for the supply of 640 Kgs of TC fuse wire 14 SWG for their use. On 26.05.2008, purchase order for the supply of these materials were placed and the plaintiff agreed to supply these goods to the defendant and the defendant after checking the sample had entered into the contract.

3. Pursuant to the approval of their bid, the plaintiff had paid security deposit and had also produced sales tax certificates and other documents as required. The plaintiff was called upon to effect supply and accordingly the plaintiff supplied goods to the tune of Rs.2,96,192/-.

4. On 04.08.2008, the Chief Stores Officer Central Stores /

CEDC (South) wrote a letter to the plaintiff stating that the goods supplied by the plaintiff were defective as the TC fuse wire had blown off immediately when tested and they wanted the plaintiff to replace the entire material, to this the plaintiff had issued a reply dated 06.08.2008, denying the allegation and contending that goods supplied were in conformity with the sample and they requested the material to be re-tested in a common lab i.e., National Test House, Tharamani, Chennai which is a Central Lab and they had requested the defendant to organise a joint inspection.

5. The plaintiff would submit that the report given by the defendant's lab has been issued in a biased manner and the defendant had inspected the materials in their own lab without their presence. On 06.09.2008, the plaintiff issued a notice to the defendant asking them to organise a joint inspection. The plaintiff would submit that this was not a new request that they were making. When a similar dispute had arisen in the year 2006, the materials were sent to the National Test House, Tharamani and the report issued by them was accepted by the defendant. On the basis of which the defendant had accepted the plaintiff's goods.

6. The plaintiff would further submit that on 24.12.2008 the defendant had issued a letter stating that the plaintiff had not come for witnessing the testing of the material and directed the plaintiff to take back the defective goods within a period of 15 days from the date of receipt of a letter and directed the plaintiff to pay a sum of Rs.32,781/-

(subsequently modified to Rs.47,590/-) towards purchase order PO.No.37/08-09 dated 26.05.2008. The defendant thereafter claimed a liquidated damages of Rs.26,919/- being 10% of the pu