MADANLAL SOHANLAL Vs. PROVINCE OF WEST BENGAL

JUDGEMENT

(1.) This is a suit for recovery of a sum of Rs. 37,088-12-6 from the Province of West Bengal and the Province of East Bengal.

(2.) The Plaintiff alleges in the plaint that the Province of Bengal, as it then was prior to the partition of India, sold and/or agreed to sell to it in Calcutta 22,000 mds. of Bajra at Rs. 2-13 per maund on or about the 9th August, 1944. Pursuant to this the Plaintiff paid to the then Province of Bengal Rs. 61,875 as the price of the entire quantity but got delivery of only 8,812 mds. 35 srs. of Bajra against a delivery order for 22,000 mds. given to the Plaintiff. There was thus a failure to deliver the balance of 13,187 mds. 5 srs. The Plaintiff claims the sum of Rs. 37,088-12-6 as refundable on account of moneys had and received by the Government to the use of the Plaintiff or in the alternative as the amount paid by the Plaintiff, the consideration for which had totally failed. The Plaintiff also relies on a letter of 6th August, 1947, written by an Assistant Secretary to the Government of Bengal as containing an acknowledgment of liability. According to the plaint both the Defendants are liable to discharge the debts and liabilities of the former Province of Bengal in accordance with the provisions of the Indian Independence (Rights, Property and Liabilities) Order, 1947. The Province of East Bengal has not entered appearance or filed any written statement but the Province of West Bengal is contesting the suit. By the written statement filed herein the contesting Defendant pleads that 13,187 mds. 5 srs. of Bajra mentioned in paragraph 4 of the plaint -was declared unfit for human consumption and as such delivery thereof could not be given to or taken by the Plaintiff. With regard to the allegations about the sale or the agreement to sell and the other averments the Defendant is content to say it does not make any admission in regard to them. The Defendant further denies its liability to refund sum claimed in the plaint either as money had and received or for moneys paid, the consideration for which has failed.

(3.) No issue was raised about the terms of the contract or the payment of the money or the failure to deliver 13,187 mds. 5 srs. of Bajra. Counsel appearing for the Defendant suggested only two issues which were accordingly framed as below: