HIMACHAL FRUIT GROWERS CO OP MARKETING AND PROCESSING SOC LTD Vs. UPPER INDIA FOOD PRESERVERS AND PROCESSORS P LTD

JUDGEMENT

(1.) The plaintiff has filed this suit for recovery of Rs. 51,550/- on the allegations that the plaintiff is a registered Society, having its Head Office at Simla. In August/September, 1979, defendant No. 2 approached the plaintiff and represented that defendant No. 1 carries on the business of a cold storage in the name and style "Him Cold Storage" at Parwanu and wanted to enter into business dealings with the plaintiff. Certain terms and conditions were orally settled between the plaintiff and defendant No. 2. These terms were confirmed in Exhibits P. 2 and P. 3. The plaintiff-Society assigned consignments of apple to defendant No. 2 for storage. Defendant No. 2 was to submit monthly bills and the stock position of these goods. Subsequently, defendant No. 1 claiming to be an owner/agent of defendant No. 2, started operating the business with the plaintiff. The plaintiff also accepted defendant No. 1 as owner/agent of defendant No. 2. The plaintiff paid Rs. 52,585/-to defendant No. 2 and Rs. l,35,920/-to defendant No. 1 by way of running payments but the accounts were not settled finally in spile of the repeated demands of the plaintiff. In July, 1980, 4509 apple-boxes of the plaintiff were lying in the cold storage with defendant No. 2. On demand, defendant No. 2 did not deliver these boxes to the plaintiff and thus committed a breach of the terms of the contract. The plaintiff suffered losses on account of these acts of the defendants. The value of the fruit boxes withheld by the defendants was Rs. 1,05,961-50 (according to the market value prevailing at the relevant time) and after adjusting the amount of Rs. 58,240/- being storage charges, till the middle of Juty, 1980 a loss of Rs. 47,721-50 was caused to the plaintiff. The plaintiff also claimed interest/damages on this amount to the tune of Rs. 3,579-10, at the rate of 18% per annum and after adding a further claim of Rs. 249-40 for notice charges, etc., the plaintiff's total claim is Rs. 51,550/-. The cause of action is alleged to have arisen in July, 1980, and the present suit was filed on 23rd December, 1980,

(2.) The defendants filed a written statement and claimed that the plaint does not disclose a cause of action. On merits, the defendants admitted the terms and conditions of the contract as are contained in Exhibits P. 2 and P. 3, but alleged that after 15th July, 1980, the plaintiff stopped removing the goods because of financial difficulties. The plaintiff could only remove the stocks of apple after payment of the storage charges but it was uaable to pay the same. The defendants have alleged that till 3lst March, 1980, an amount of Rs. 1 82,635/- was received and a further amount of Rs. 19,582-50 was received till 31st May, 1980. The defendants also alleged that till the month of June, 1980, an amount of Rs. 44,433-18 was due as rent from the plaintiff and the plaintiff failed to pay this amount to the defendants in spite of various demands and requests. The plaintiff issued a post-dated cheque of Rs 10,000/- but this cheque was dishonoured by plaintiff's bankers for want of funds. The defendants kepc the appleboxes till 1st March, 1981, but were compelled to auction the same. The auction price was adjusted towards the hire chasges. It is denied that the price of the apple was Rs. U23.000/-.

(3.) Defendants also filed a counter-claim for recovery of Rs. 78,007-98, with the allegations that apple boxes were to be stored by the defendants under a temperature between 30 to 32. They had been storing the apple boxes from 4th September 1979 to 1 5th July, 1980, by which time 4509 apple boxes were left with the defendants for storage. The plaintiff did not take delivery of these apple boxes after 15th July, 1980 and also did not pay any hire charges. The defendants had to issue notice to the plaintiff, calling upon the plaintiff to lift-the stocks. The defendants were repeatedly demanding their payment lor storage of apple-boxes, therefore, the plaintiff issued a post dated cheque for Rs.10,000/- on 15th July, 1980, as part payment of rental charges. The plaintiff refused to lift the apple boxes and pay the storage charges. As a last resort, the defendants bad to auction the apple boxes for which they gave advertisements in differ- ent newspapers and also by circulation of hand bills. The auction was foeld on 1st March, 1981, and the apples were sold for Rs 22,545/-. The defendants suffered losses and the total claim of the defendants on account of rental charges after adjusting the amount received by them in auction is Rs. 78,007-98.