TISARA PACKAGING INDUSTRIES LTD

TISARA PACKAGING INDUSTRIES LTD

Vs.

ATTORNEY GENERAL

SUPREME COURT
ALUWIHARE, J.
JAYAWARDENA,J.
FERNANDO, J.
SC/CHC/APPEAL/17/2010
HC/CIVIL/123/05(1)
AUGUST 2, 2018

Breach of contract-Waiver of rights-Onus of proof of waiver Contractual obligations-Damages

The Commissioner General of the Department of Educational Publications in the Ministry of Education had entered into an agreement with the defendant to print certain books. The defendant failed to meet the deadline to complete the order, as a result of which the Commissioner General was compelled to commission three other printing agencies to print the remainder. The Commissioner General sent a letter of demand seeking to recover the cost incurred to print the remaining copies. As there was no positive response to the letter of demand, action was instituted before the Commercial High Court claiming damages for breach of contract. At the trial, the defendant did not raise any issues or dispute the facts. The contention of the defendant was that partial performance of the contract was not in breach of the contract and the contract came to a mutually agreed termination as implied by the plaintiff's conduct. The High Court delivered judgment in favour of the plaintiff.

Held:

1. Even though a waiver could be implied by conduct, an intention to waive a right or benefit to which a person is entitled is never presumed. The presumption is against waiver and the onus of proof of waiver is on the person who asserts it. This burden has not been discharged by the defendant.

2. Breach of procedures stipulated under tender guidelines by public officials has no impact on the contractual obligations of the parties arising out of the agreement between them. Such a breach may only expose errant public officials to disciplinary action.

Cases referred to:

1. Fernando v. Samaraweera (1951) 52 NLR 278 at 285

APPEAL from the Judgment of the Commercial High Court of Colombo.

cur. adv. vult.

October 18, 2019

ALUWIHARE, J.

The Plaintiff-Respondent (hereinafter sometimes referred to as "Plaintiff'), instituted the original action in the High Court of the Western Province holden in Colombo on 1st July 2005, claiming damages amounting to Rs. 8,005, 536.88 with legal interest from the Defendant-Appellant (hereinafter sometimes referred to as "Defendant") for breach of contract.

On 3rd August 1999, the Defendant entered into an agreement with the Commissioner General of the Department of Educational Publications in the Ministry of Education (hereinafter "Commissioner General") to print the following school text books;

In terms of the agreement, the Defendant agreed to print 380,000 copies of the book "World Through English" for Rs. 14,568, 321/= and to deliver the said copies to the Commissioner General of the Department of Educational Publications on or before 30. 11. 1999. The said book consisted of 160 pages and was a given a unit price of Rs. 38.34/=. However, the Commissioner General subsequently reduced the number of pages to 136 and the Defendant-Appellant agreed to print the same number of copies taking Rs. 32.58/= as the new unit price...

It is the contention of the Plaintiff that the Defendant failed to meet the deadline and complete the order. The Defendant had only succeeded in printing 120, 400 copies and even those copies had been delivered past the deadline. As a result of the default, the Commissioner General was compelled to commission three other printing agencies to print the remainder.

Orders had been placed with Wishwalekha printers, AJ printers and Samayawardhana printers to print respectively, 100, 000 copies (Rs. 71.55/= per copy), 49, 910 copies (Rs. 69.25/= per copy) and 50, 000 copies (Rs. 78.07/= per copy) of the text book. The total cost

incurred to print the remaining copies amounted to Rs. 8, 005, 536/=. The final receipts and invoices pertaining to each order are marked fr

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