WALCHAND PANACHAND SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal preferred by the Original Plaintiffs against the judgment and order of the Civil Judge, Senior division, Sangli dated 2nd December 1986, The appellants had filed the suit for recovery of Rs.60,469.01 being the price of the goods confiscated with interest and costs thereon. The trial Court partly decreed the suit by passing decree in the sum of Rs.4,127.52 with interest at the rate of 6% p.a. Being aggrieved by the said order, the appellants have preferred the present appeal.

(2.) ONLY few facts are necessary to be stated for determining the issue involved in the present appeal. The 1st Appellant claims to be an agriculturist. On 17th October 1974 Tahsildar of Jath attached food grains bags belonging to the 1st Appellant at different villages under the provisions of the Maharashtra Schedule Foodgrains (Trade Monopoly) Act, 1972. These bags were claimed by the 1st Appellant as belonging to his family members. A panchanama was made on that day in respect of items attached. On 1st November 1974, a show cause notice under section 6 of the Essential Commodities Act was issued to the 1st Appellant and an enquiry was thereafter initiated by the District Supply Officer, Sangli. On 15th September 1976 an order of confiscation was passed and in the mean time, the foodgrains as they were perishable items, were sold. Being aggrieved by the order of the District Supply Officer, the 1st Appellant preferred an appeal to the Court of Sessions, Sangli, contending therein that the order of confiscation was illegal. However, the appeal was dismissed and it was held that the evidence showed that the 1st Appellant was a trader. Criminal Revision Application No.219 of 1978 was preferred to this Court by the 1st Appellant and after hearing the parties, this Court was pleased to remand the matter to the District Supply Officer, Sangli for proper determination on the basis of the directions given. The District Supply Officer came to the conclusion that the 1st Appellant was dealing in foodgrains without licence. This order was passed on 16th June 1980. The 1st Appellant again preferred an appeal being Criminal appeal No.111 of 1980 to the Court of Additional District Judge, Sangli, under the provisions of the Essential commodities Act, 1955. It was ultimately held in the said appeal that the State had failed to prove beyond reasonable doubt that the 1st Appellant was the trader and, therefore, the order of confiscation was set aside. This was on 10th February 1981. The additional District Judge, Sangli, inter alia in the said appeal held that the 1st Appellant was entitled to get back possession of the attached foodgrains. As, however, the seized foodgrains were sold through Fair Price Shops. the amount of the sale-proceeds was ordered to be refunded to the 1st Appellant. The 1st Appellant withdrew the said amount of Rs.33,770.80 which was the amount recovered by the State on sale of the seized foodgrains through the Fair Price Shops. This he did under protest. Thereafter in view of the order passed in the said Criminal Appeal, the appellants served on the Respondent-defendants notice dated 29th June 1982, demanding that the Respondents were liable to pay the market price of the foodgrains seized and that market price had to be that prevailing in the year 1974 with further raise of 10% from 17th October 1974 which were attached. As a result of non-compliance by the Respondents, a suit being Special Civil Suit No.107 0f 1983 was filed. In the plaint, the Appellants initially claimed that Rs.99,150/- was the value of the foodgrains attached on 17th October 1974 and gave the break up of the said amount. The Appellants also claimed Rs. 79,100/- as interest at 10% from 17th October 1974 to 29th September 1982. till the date of the suit, and after giving credit for Rs. 33,770.85 which was withdrawn by the appellants under protest, a claim was made of Rs.1,44,479.15. The appellants also challenged the calculation made by the Respondents on the basis of Government Resolution dated 24th July 1979 which according to them was illegal, and also challenged the deductions in respect of expenses incurred by the Respondents. It was contended that the rates supplied by the said order dated 29th September 1982 were not the correct rates, nor were weights properly taken into consideration. Alternatively, however, the appellants claimed a sum of Rs.60,155.36 on the basis of the figures available from the Respondents. In the suit ultimately the Appellants had prayed for the said amount of Rs.60,155.36, with notice charges and costs. The Respondents filed their Written Statement and generally denied the claim of the Appellants. They disputed the quantities given in the plaint and also disputed that the Appellants were entitled to the market price as of 17th October 1974. It was their contention that on the basis of the government Resolution dated 24th July 1979 certain deductions were permitted to be made and they were made and it was, therefore, their contention that the rate claimed cannot be the market price but has to be the rate at which the foodgrains were sold at the Fair Price Shops. According to the Respondents, therefore, the amount realized viz., Rs.33,770.85 was the proper amount and no further amount was payable by them. On the basis of the pleadings, relevant issues were raised. ONLY one witness was examined by the Appellants and that happened to be the 1st Appellant who inter alia deposed that as on 17th October 1974, 242 quintals of Jawar, 149 quintals of Bajari, 77 quintals of Wheat and 11 quintals of Khapali were attached and that he in his deposition gave the market price prevalent on 17th October 1974. He heavily relied on the notice which was addressed on behalf of the Appellants dated 23rd June 1982 and deposed that the contents thereof were correct. Interestingly enough in the cross-examination, he stated that the appellants had not maintained any account in respect of foodgrains, that the appellants had not mentioned anywhere about the weights of each commodity and that except his bare words, the appellants had no evidence about the weights. At trial, no evidence was led on behalf of the Respondents. The Appellants did not call upon the Respondents to produce the record in order to find out as to the exact quantity attached and seized by the Respondents. With the result that there was no material before the trial Court to proceed on the basis of alleged figures of quantity given by the Appellant No.1 in his evidence, when in his cross-examination he admitted that apart from his bare words, there was no other material available. In these circumstances, as far as the quantity given by the appellants in the plaint is concerned, there is no material to show that these were the very quantities which were seized. It is true that the Respondents have not come out with their entire record. However, the Appellants are also to be blamed for not seeing to it that the record was brought before the Court. In the event of their calling upon the Respondents to produce the evidence at the trial and if it was not produced, surely adverse inference would have been drawn. This takes care as far as quantities of foodgrains are concerned. As far as rates are concerned, although the Appellants prayed for market rate prevalent on 17th October 1974, under the provisions of Section 6-C(ii) of the Essential Commodities Act, 1955 when foodgrains are attached and seized, they are to be disposed of as per the provisions contained therein which thus rules out the claim for payment at the rate of market price. This thus, takes care of the submission in respect of market price being paid.