BENGAL ENAMEL WORKS LTD Vs. APEJAY PRIVATE LTD

JUDGEMENT

(1.) This suit was interested on December 16, 1965, by the plaintiff-company, Bengal Enamel Works Ltd., against the defendant-company, Apejay Private Ltd., for the recovery of sum of Rs. 99,718.14 P., alternatively, for an enquiry into the amount due to the plaintiff and for a decree for such amount which is found due upon such enquiry and for costs.

(2.) The plaintiff-company's case is that the defendant-company was at all material time a registered stock-holder of the Iron & Steel Controller, Calcutta, and that the defendant was liable and bound to sell iron and steel stocks at the direction and at prices fixed by the said Controller. The Controller directed the defendant to deliver to the plaintiff certain stocks of iron and steel as alleged by the plaintiff-company. The plaintiff paid a sum of Rs. 7,47,452 P. to the defendant for the price of the iron and steel stocks during the period July 19, 1962 and December 31, 1962. Particulars of these payments are set out in Schedule A to the plaint. The delivery of these goods took place during August 6, 1962 and September 4, 1962. It is alleged by the plaintiff-company that such delivery was at prices to be fix or fixed by the said Steel Controller. On December 19, 1962, the Controller is said to have fixed the prices payable by the plaintiff in respect of those goods and it is the plaintiff-company's case that the defendant is entitled only to such price fixed by such Controller. On the basis of such prices a sum of Rs. 6,62,885.38 P. became payable by the plaintiff to the defendant. Therefore, the plaintiff's case is that it has overpaid the defendant to the extent of the sum of Rs. 84,567.07 P. as per particulars given in para 8 of the plaint. It is this sum of money that the plaintiff claims back from the defendant. An alternative claim is made in para 10 of the plaint on the basis of representations alleged to have been made by the defendant to the plaintiff which are said to have been false. A further alternative claim is made for the said sum of money as damages for deceit in para 11 of the plaint but which the learned Counsel for the plaintiff, Mr. M. N. Banerjee, has given up. In further alternative, the said sum is claimed on the ground of mistake of fact. Interest is claimed on the amount at the rate of 6 per cent per annum. It is pleaded in the plaint that by reason of certain letters dated May 1, 1963, November 22, 1963, February 4, 1964, May 19, 1964 and September 22, 1964, the defendant unconditionally admitted and acknowledged its liability to pay this excess amount. That in brief is the substance of the cause of action as pleaded in the plaint.

(3.) The defence is that the defendant-company was not a principal at all in this contract but was a handling agent of the Union of India represented by the Steel Controller. The defence is that the defendant delivered to the plaintiff-company these goods not as stockists but under an allotment letter issued by the Steel Controller in favour of the plaintiff under which the defendant as handling agent of the Controller was directed to deliver these goods as and when they came imported from abroad in the name of the Steel Controller.