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PETITIONER: PUNJAB URBAN PLANNING & DEV. AUTHORITY

       Vs.

RESPONDENT: M/S SHIV SARASWATI IRON & STEEL RE-ROLLING MILLS

DATE OF JUDGMENT:       24/03/1998

BENCH: K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. Venkataswami, J.      Special leave granted.      Heard counsel on both sides.      The appellant  filed a suit for specific performance of the contract  in question  by returning (delivery) the goods weighing  124.255   Metric  Tonnes  rail/blooms  or  in  the alternative to  direct the  defendant to  pay a sum of Rs. 2 lacs against  the non-delivery/Supply  of  the  said  goods. Brief facts are the following:-      According to  the appellant,  it was agreed between the parties that  the respondent  herein accepted  the offer for re-rolling of  M.S. bars  out of  rails and  blooms for  all dias, i.e.  10 MM  to  20  MM  on  certain  conditions.  The relevant  conditions   as  given   in  the  plaint  are  the following:-      Condition No. 2      Steel will be supplied weight to weight.      Condition No. 3      The firm  will be  responsible for the quality of steel out of the material supplied by the Board.      Condition No. 4      The supplier  shall be responsible for the safe custody of the material supplied by the Board to them.      Condition No. 7      About 2000 Mts. of rail or bloom shall be got re-rolled from you during 1976-77.      The admitted  facts are  that  the  appellant  supplied 1992.745 Matric Tonnes rail/blooms in 1997 for re-rolling to the defendant.  The respondent,  however, returned  1869.490 Metric tonnes  of re-rolled  materials as against the supply of 1992.745 Metric Tonnes rail/blooms. The respondent by its letter dated  16.11.78 informed the appellant that a balance of 18.765 Mt. of rail/blooms, in addition to Rounds weighing 2.299 Mt.,  were lying  in its  stock and the balance of the material was  burnt while  re-heating in  the furnace in the process of  re-rolling. According  to the  appellant, as per the terms and conditions of the contract, the respondent was liable  to   return  the   entire/equal  quantity   of   the rail/blooms  supplied  for  re-rolling.  As  the  respondent

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failed to  return  the  entire  quantity  supplied  for  re- rolling, the filing of suit became necessary.      The respondent  not only  resisted the  suit  but  also filed a  counter-claim stating that it has over supplied the re-rolled material  as such it was entitled to recover a sum of Rs.1,15,735/- on account of wastage of raw material.      The suit and the counter-claim were tried together. The plaintiff examined  one witness  to prove  Exh. P1, a letter (offer )  written by  the appellant  to the  respondent. The Trial Court framed as many as six issues and found that Exh. P1 (letter)  could not be said to be a valid agreement since it lacked  the signatures  of  the  representatives  of  the defendant and  in the  light of  the plaintiff’s (appellant) failure to  place all  the  relevant  documents  before  the Court, the  terms and conditions of the alleged contract had not been  proved. On  the  basis,  the  Trial  Court  partly decreed the  suit of  the appellant  to the  extent  of  the admission made by the respondent in its correspondence about the balance  of rail/blooms  available  with  it  after  re- rolling. As  regards the  counter-claim, it was dismissed on the ground  of failure  on the  part  of  the  defendant  to substantiate the  same. It  may be  noted that the defendant has examined any witness.      Aggrieved by  the  partial  decree  of  the  suit,  the appellant preferred  an appeal  to the  Appellate Court. The Appellate Court  carefully considered  the matter  and found that the Trial Court was not fully right in holding that all the terms  and conditions  of the  Agreement were not proved inasmuch as  certain terms  and conditions  extracted in the Plaint were  admitted  by  the  respondent  in  the  written statement.  Nevertheless,   the  Appellant  Court  dismissed appeal observing as follows:-      "Apparently,  the   defendant   had      carried out  work for the plaintiff      Board but  in the  absence  of  the      prior  correspondence  relating  to      the offer  made  by  the  defendant      Mill as  also response given by the      Mill to  the letter dated 13.5.1976      Ex. P1.  It would  be difficult for      the court  to gauze conclusively as      to what  were the  exact terms  and      conditions on  which the  defendant      had agreed  to carry  out the work.      Further more, from a perusal of Ex.      D1  a  notice  which  was  sent  on      behalf of the defendant company, it      is  apparent  that  there  is  some      dispute        regarding        the      interpretation  which  the  parties      were  putting   on  condition  No.2      which  says   that  steel  will  be      supplied weight  to weight inasmuch      as according  to the defendant this      term made allowance for the wastage      which according  to the plaintiff’s      own witness  necessarily took place      on account  of re-rolling  process.      Since on  behalf of  the plaintiff,      Gurdial  Singh   PW1     has   only      produced the  copy of the agreement      which was  exhibited as  P1 and  no      effort has  been  made  to  explain      what    according    to    business      terminology was  meant by supply of

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    the steel weigh to weight. It can’t      by any  stretch of  imagination  be      held that  the terms and conditions      of the  agreement that  was finally      entered into  between  the  parties      has  been   duly  proved   on   the      record."      As against  the said  judgment of  the Lower  Appellate Court, a  Second Appeal  was preferred to the High Court and it was  dismissed in  limine. The  present appeal by special leave has been filed in these circumstances.      Ms. Rachna  Joshi Issar,  counsel  for  the  appellant, vehemently contended  before us that the Trial Court as well as the First Appellate Court ignored the settled proposition of law  that facts admitted need not be proved. According to the learned  counsel, in  the absence of any evidence of the side of  the defendant  and more  so  when  the  defendant’s counter-claim was  dismissed, the plaintiff’s suit must have been automatically  decreed as  prayed for  and the  partial decree was  not adequate  on the facts of this case. learned counsel again  and  again  laid  stress  on  the  terms  and conditions set  out  in  the  Plaint  which  have  not  been controverted in  the written  statement and also the absence of evidence  on the  side of the defendant to drive home her point.      It must  be remembered  that Exh.  P1 is  only an offer made by  the  appellant/plaintiff,  which  was  preceded  by certain correspondence  emanating from the respondent and it can reasonably  be presumed that subsequent to Exh. P1 there must have  been some  response from  the respondent  to  the offer of  the appellant. All those documents were not placed before the  Court to appreciate correctly and completely the transactions  between   the  parties.  Further,  as  rightly pointed out by the Trial Court and the First Appellate Court that Gurdial  Singh PW1  was examined  only to prove Exh. P1 and he  was not  in a  position to  explain the  intricacies thereon, in  particular, the  relevant Condition No.2, which relates to supply and return of material. The language used, namely, ’weight  to weight’,  was not at all explained by PW 1. The whole evidence of PW1 has also not been placed before us. We  are of  the view  that the Lower Appellate Court was quite justified  in observing  that the appellant-Board, for reasons best  known to  it, had not placed all materials and no effort  has been  made to explain what according business terminology was  meant by  supply of  the esteem  weight  to weight. We  cannot take exception to the conclusion taken as above by  the Lower Appellate Court. The plaintiff/appellant must succeed  or fail  on  his  own  case  and  cannot  take advantage of  weakness in the defendant/respondent’s case to get a decree.      Therefore, on the facts as found by the Trial Court and the Lower Appellate Court, we do not think that any question of law  arises for  our consideration,  as contended  by the learned counsel,  in this  appeal. the  appeal fails  and is dismissed accordingly with no order as to costs.