REGIONAL MANAGER, CEMENT CORPN. OF INDIA LTD. vs ADMINISTRATOR, M.R. KRISHNAMURTHY CO-OP. SUGAR MILLS LTD.

OF the four opposite parties in the O.P., the 2nd opposite party against which alone an award has been passed, is the appellant. The complainant Administrator, M.R. Krishnamurthy Co-opera- tive Sugar Mills Ltd., Sethiathope placed an indent to the 2nd opposite party-Regional Manager, Cement Corporation of India Limited, Madras for supply of 100 MT of cement on 4.3.1992. It appears as against the quantum of cement to be supplied as per the invoice being 87.100 MT, actually only 78.130 MT cement was . supplied. The complainant has paid an advance of Rs. 1,80,000/-. The construction work was started on 13.3.1992 and 150 bags of cement was used for RCC roofing and sunshade. While using the cement purchased, the Engineers of the complainant suspected the quality of the cement and therefore me work was stopped. On account of this, the complainant incurred a loss of Rs. 51,500/- After a legal notice and a telex message issued, one Mr. Natarajan, Sales OFficer of the 2nd opposite party visited the complainant''s factory on 20.3.1992 and noted the poor quality of the cement. The 4th opposite party carried the cement from the 2nd opposite party and delivered it to the complainant at the instance of the 2nd opposite party. The 2nd opposite party in their letters dated 17.12.1992, 15.7.1993 and 30.7.1993 acknowledged that the cement supplied was of inferior quality and undertook to refund the amount, but later on, wanted to replace the cement supplied with good quality cement. But nothing took place. Therefore the complaint in the District Forum.

IN the District Forum the 1st and the 3rd opposite parties were given up and the case proceeded against only the 2nd and the 4th opposite parties. The 2nd opposite party in its written version contended that they supplied 87.100 MT of cement and not 78.730 MT as stated by the complainant. It then contended that while the cement was duly transported by the 4th opposite party, some anti-social elements diverted the loads of cement to private sheds and there they got the cement bags replaced with adulterated cement. Therefore, the 2nd opposite party is not responsible for any shortage/adulteration. The complainant has sent the cement for testing only after he has already used 150 bags of cement. The sample should have been tested within one week from the date of delivery to the complainant but that has not been done so. In this case, while the cement had been delivered in the first week of March, 1992, the testing had been done only on 28.3.1992. Therefore, the testing was not valid. The 2nd opposite party is prepared to replace the cement bags which are in the complainant''s godown and the 2nd opposite party is not liable to refund the amount or to pay any interest. But the complainant was not agreeable to replacement of the cement. There fore the 2nd opposite party is not liable to pay any amount to the complainant.

The 4th opposite party in its written version contended that it was only a handling agent of the 2nd opposite party and there was no privity of contract between the complainant and this opposite party and therefore this opposite party is not liable to pay any amount to the complainant. It is further contended that the 2nd opposite party as well as this opposite party wrote to the complainant that new cement will be given on the complainant handing over the defective cement. But there was no response from the complainant. The complainant has been lethargic and is only trying to find fault with this opposite party. Therefore this opposite party is not liable to pay any amount to the complainant.

THE District Forum on consideration of the pleadings and evidence, came to the conclu- sion that only 78.230 MT cement had been supplied to the complainant. It further held that there was no doubt that the cement supplied was defective. It then held that only the 2nd opposite party is liable and not the 4th opposite party since there was no privity of contract between the 4th opposite party and the complainant. It further held that the 2nd opposite party is liable to refund the said sum of Rs. 1.80.000/- with interest thereon. Accordingly, it directed the 2nd opposite party to refund the said sum of Rs. 1,80,000/- with interest thereon @ 12% per annum from 20.3.1992 till the date of payment. It also directed the complainant to return the unused bags of cement to the 2nd opposite party. Now in the appeal, as regards the quantum of cement supplied, there was no argument advanced as against the finding of the District Forum that only 78.230 MT cement was supplied. As regards the finding of the District Forum that the cement was adulterated also, there was no argument advanced. As held by the District Forum, it is the case of admission by the opposite party that the cement was adulterated. The 2nd opposite party in its written version has unequivocally stated that while the cement was being transported some anti-social elements have diverted the cement loads to private godowns and there they replaced the cement with adulterated cement. Therefore, it is beyond a shadow of doubt that the case of the complainant that substandard cement was supplied, is absolutely true. However, it is argued that the opposite parties informed the complainant that they were prepared to replace the defective cement with good quality cement but the complainant has not responded at all for a long time and hence this mitigating circumstance must be considered. But it appears from the pleadings of the opposite parties that they wrote to the complainant that they will replace the adulterated cement with good cement on the complainant handing over the defective cement to them. From this, according to the opposite parties, the complainant must first hand over the defective cement and then they (opposite parties) would supply the complainant with good quality cement. But the opposite parties having committed such a serious thing of supplying adulterated cement, after receiving a heavy amount as advance, they ought to have immediately supplied good quality cement and then take back the defective cement. They cannot expect the complainant to deliver to them the defective cement first. Thus, there is no merit in this argument advanced by the appellant/2nd opposite party. No other argument was advanced. Therefore we find no merit in the appeal.

IN the result, therefore, the appeal is dismissed. However, there will be no order as to costs. Appeal dismissed.