FACTS
The Appellant and the Respondent entered into a contract whereby the services of the Appellant were retained for the supply of equipment to be delivered to the Respondent within 90 days from the signature date of the contract failure to which, liquidated damages per day of delay would apply.
The Appellant contended that it has delivered the equipment 135 days after the time limit for delivery and claimed that an excess amount was unduly retained by the Respondent. The Respondent maintained that the equipment was effectively delivered after 690 days from the signature date of the contract and further alleged that the equipment was not delivered in compliance with the specifications set out in the contract which the Appellant denied. The Respondent refused to pay the excess amount to the Appellant, which decision was upheld by the Honourable magistrate of the Trial Court.
MAIN ISSUES
The Appellant appealed against the judgment and submitted inter alia that:
(i) the learned magistrate erred in refusing to adjudicate on the date of delivery of the equipment being the main issue at hand;
(ii) in the light of the evidence on record, there was a clear misdirection on the part of the learned magistrate when she concluded that the Court could not possibly embark on the assessment as to whether the equipment was defective or not;
(iii) the learned magistrate erred in disregarding a document when the Respondent itself invited her to rely on the tender documents produced by the Respondent;
(iv) if the learned magistrate had effectively analysed the testimonial and documentary evidence on record, she would have given judgment in favour of the Appellant inasmuch as:
- the alleged snags did not at all constitute material departures from contract specifications;
- the date of delivery was 17th September 2010 (i.e. 135 days after signature of the contract) and the equipment was tested and driven on that day;
- if there existed any material departure from contract specifications, the Respondent would not have accepted the equipment.
DECISION OF THE COURT
The Court quashed the judgment of the learned magistrate and ordered the Respondent to pay the Appellant the sum of MUR 294.615.40 cts with interest based inter alia on the following:
(i) the learned magistrate erred when she declined to proceed with an assessment of the issues raised by the parties on the basis of the absence of evidence as to the specifications;
(ii) Grounds 1, 2 and 3 are well taken since the documentary evidence clearly establish the specifications with which the appellant had to comply for the supply of the equipment;
(iii) the learned magistrate failed to give judgment in favour of the Appellant in respect of Ground 4 whereas it is abundantly apparent from the evidence that on 17th September 2010, the Appellant did deliver the equipment in compliance with the contract specifications and that the alleged snags and defects which were belatedly invoked by the Respondent did not constitute a breach of the contract specifications. Consequently, the Respondent was not entitled to withhold payment on the ground of further delay in the delivery of the equipment for any of the alleged complaint subsequently made by the Respondent;
(iv) the Respondent accepted delivery of the equipment without any reservation on 17th September 2010;
(v) the Respondent’s list of defects was issued only when the Appellant requested payment of the remaining balance on 03 November 2010;
(vi) the equipment (being tractors and trailers) had been lawfully registered as being roadworthy by the National Transport Authority and were approved by a registered engineer before their delivery on 17 September 2010.
Attorney for Appellant: Jean Jacques Robert
