STATE OF WEST BENGAL Vs. AJIT KUMAR MUKHERJEE

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated March 6. 1963 bv the learned Subordinate Judge, 6th Court, Alipore, made in Money Suit No. 13 of 1958, The plaintiff respondent (hereinafter referred to as the plaintiff) at all material times and still is carrying on business under the name and style of Pearson Trading Company at 1/5, Raja Basanta Roy Road, Calcutta-26, as a contractor in food in the Police departments in West Bengal and several other mercantile concerns, pursuant to an invitation of a tender for the supply of die-tory articles, including cow and Bhaisa ghee by the Superintendent of Police, 24 Parganas, he on November 5, 1948 submitted a tender for such articles of cow and Bhaisa ghee at the following rates : <FRM>JUDGEMENT_273_AIR(CAL)_1977Html1.htm</FRM> Such tender of the plaintiff was accepted by the said Superintendent of Police by his letter of November 18, 1948 for the month of November, 1948 and he was directed to supply 100 maunds of Bhaisa ghee as per his sample. It is also an admitted fact that pursuant to such acceptance and order, the plaintiff at first delivered 26 maunds 6 seers and 14 chataks of Bhaisa ghee in 59 containers on November 19, 1948 and thereafter, on November 24. 1948 he delivered another consignment of 75 maunds 20 seers of Bhaisa ghee in 171 containers. It is also not disputed that the supplies in question were approved and accepted and thereafter, the plaintiff on Dec. 4, 1948 placed his bill for Rs. 23.891.14 as 3 pies, as price of 130 tins containing 101 maunds 26 seers 14 chataks of Bhaisa ghee. Since there were some errors in calculation, the said bill was ultimately returned to the plaintiff for correction, who thereafter on December 8, 1948 presented a corrected bill for Rupees 23. 892-14 as 3 pies for the goods supplied. It appears that by Memorandum No. R/543 dated December 21, 1948, the plaintiff was informed by the Superintendent of Police concerned that the supplies so made by him were adulterated end he was asked to take back the tins which were lying in the store of the said defendant and to sub-mit a fresh bill for the quantity of ghee actually consumed. Since there was delay in making the payments for such supply of ghee, the plaintiff on December 23, 1948 requested the Superintendent of Police concerned to send a cheque for the price of the goods so supplied. It also appears from the records that on receipt of the letter of December 21, 1948 from the Superintendent of Police concerned, the plaintiff by his letter of January 6, 1949 denied the charges of adulteration as was alleged. It would also appear that before the said letter of January 6, 1949, the plaintiff with his representatives had been to the Ration Store of the defendants on January 4, 1949 to take back the unconsumed tins lying at the said godown and at that time on proper examination of the tins it was found out to their utter surprise that they did not belong to them. Such detection was made when the plaintiff found that the secret marks "SB" which were given on the tins so supplied by him were conspicuously absent. By the said letter of January 6, 1949 the plaintiff also contended that the tins supplied by him have been replaced and that has placed 'him in such an awkward position that he could not take back those tins as per the directions as mentioned above. In the said letter the plaintiff also alleged that some underhand means have worked with the mala fide intention to harass him. It was also stated by the plaintiff in the said letter that the samples sent for test by the said defendants were not taken in his presence nor did they bear Ms official seals and signature and it was quite possible that samples were taken through oversight from the stocks supplied by other contractors. The plaintiff also made it clear in his letter under reference that he would have certainly submitted to the charges as levelled against him, if the procedure which was adopted in the month of December 1948 for taking samples in the case of Messrs. National Dairy, since such procedure was quite in order. From a reference to the said letter it also appears that the plaintiff made it clear that the supply of ghee from several tins which he had supplied, had actually been made and distributed to several Police Stations like Barrackpore and G. R. P. Sealdah and since those supplies have been called hack for the purpose of delivering them to him, also caused a suspicion in his mind. The plain-tiff, however, made it clear that for the act and action the said defendants he has suffered much and irreparable damages to his goodwill and in any view of the matter he requested for the payment of his bill at an early date. It has also been made clear that on failure of such payment, he would be compelled to charge the defendants interest @ 12 1/2%.

(2.) It also appears from the records that thereafter, proceedings were initiated against the plaintiff and another person named Sri S. Banerjee and they were placed on trial under Sections 420 and 227 of the I. P. C. Such proceedings of course ended in an acquittal of the (plaintiff and the said co-accused on April 22, 1950, by the learned trying Magistrate. Thereafter, the Superintendent of Police, 24 Parganas (defendant No. 2) filed a fresh complaint on the self-same allegations before the Additional District Magistrate and the plaintiff was summoned to face the trial. He in his turn moved this Court for quashing the said criminal proceedings and by the judgment of December 14. 1950, this Court was pleased to quash the said proceedings. Then at the instance of the Superintendent of Police, 24 Parganas, notices were issued on the plaintiff through the Court of the Magistrate, First Class, Alipore. directing him to take back the consumed containers of ghee and after considering the show cause by the plaintiff, the said learned Magistrate directed that the unconsumed ghee produced by the Superintendent of Police, 24 Parganas be made over to the plaintiff.

(3.) Even thereafter, the said defendants, instead of making due payment of the price of ghee as supplied, harassed the plaintiff in different criminal proceedings, which also failed. On the failure of the said defendants to make necessary payment for the supply of ghee as mentioned hereinbefore, the plaintiff on December 17, 1951 filed Money Suit No. 13 of 1958, for recovery of the price of goods sold and supplied and for damages. In the plaint it has been contended that the plaintiff was entitled to get Rupees 23.392-14 as. 3 pies as price of the ghee in question and as the said defendants have delayed the payment, so he was also entitled to damages by way of interest to the extent of Rs. 9,457-10 as. 4 pies. Thus his total claim in the said suit was Rupees 33,350-8 as. 7 pies. The said suit was preceded by a notice under Section 80 of the C. P. C. dated October 6, 1951.