RAM PRATAP KAMALIA MILLS Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two appeals arise out of the same suit. First Appeal No. 181 of 1958 was by defendants 1 to 3, but, after the death of defendant 2, Bhagirath Prasad Kamalia was substituted In his place. First Appeal No. 184 of 1953 is by defendants 1, 4, 5 and 6. The plaintiff, State of Bihar, instituted a suit for recovery of Rs. 13,830/14/-in the following circumstances. Defendants 2 and 3 were partners carrying on a partnership business under the name and style of Ram Pratap Kamalia Mills (defendant 1) in Warsaliganj. In the middle of 1949, defendant 1 was allotted Orissa paddy for milling into rice and that defendant agreed that the rate of extraction of rice would be 63.5 per cent of the paddy. A sum of Rs. 1/4/- per maund of the rice was fixed as the milling charges and defendant 1 agreed to deliver the rice on that basis. The plaintiff was to bear the transport charges of the paddy from the place of despatch to the gate of the Mill. Defendant 1 further agreed that rice would be delivered F. O. R. Patna Junction. According to Statement A of the plaint, defendant 1 received 29,700 maunds of paddy in 14898 bags between 10th June 1949 and 19th July, 1949 and, out of that, 80 mau'nds of paddy were of fine variety. According to the agreement, defendant 1 was to supply 18808 maunds 28 seers of medium rice and 50 maunds 32 seers of fine rice to the plaintiff. Plaintiff gave the various dates, waggon numbers and places of despatch in Statement A. According to Schedule B of the plaint, defendant 1 supplied 15965 maunds 25 seers 1 chatak of medium rice at Patna Junction and 982 maunds 20 seers of medium rice at Gaya, but did not supply 1860 maunds 20 seers 15 chataks of medium rice and 50 maunds 32 seers of fine rice in spite of various reminders. Schedule C of the plaint contained two headings. First one indicated the amount payable to the Mills and it came to Rs. 35,064/-, whereas the other heading was in respect of the amount payable by the Mills and, under that heading, the aggregate sum was Rs. 48,894/14/-. After adjustment of the claims, according to this Schedule, the plaintiff claimed a sum of Rs. 13,830/14/- in this suit. It appears from the written statement of defendants 2 and 3 that Ram Pratap Kamalia Mills (defendant 1) was being managed by a Board of Trustees under a trust deed and Sitaram Kamalia, Durga Prasad Kamalia and Chunnilal Kamalia also were the trustees. Accordingly, these three persons were added as defendants 4 to 6 on a petition dated 23-84956 filed by the plaintiff.

(2.) Defendants 2 and 3 admitted the agreement between defendant 1 and the plaintiff acting through its Secretary, Supply and Price Control Department, regarding the rate of extraction and delivery of rice in 1949, but took the plea that the agreement was vague and not enforceable. Their case was that there was no agreement or contract in accordance with the provisions of Section 175 of the Government of India Act and, as such, the plaintiff could not make any claim in respect of that agreement. They admitted in paragraph 7 of the written statement that there was an undertaking to supply rice at the rate of 63.5 per cent, (extraction rate) on the quantity of paddy received by them and to deliver the rice free of railway freight at Patna Junction. They challenged the accuracy of the figures given in Statement A of the plaint and stated that there was shortage of paddy in course of transit from Orissa to Warsaliganj'. They were not bound to supply 18808 maunds 28 seers, of medium rice and 50 maunds 32 seers of fine rice. In fact, they received only 29,261 maunds of paddy, as indicated in Statement ! of their written statement. They incurred heavy expenses in carrying on the consignments to the Mill premises and the milled rice from the Mill premises to the railway station at Warsaliganj. Thus they had to spend Rs. 7914/9/-, as indicated in Statement II. Milled rice was ready for delivery, but on. account of the laches of the plaintiff, it could not be despatched and it remained in godown for several months. On account of long storage, germination and refraction, there was shortage to the extent of 465 maunds, the value of which was Rs. 7440/- at the rate of Rs. 16/- per maund. This item was shown in Statement III. There was no agreement to supply fine rice and, in fact, no paddy was kept separate for that purpose. They had sent 1000/- maunds of rice to the District Magistrate of Gaya, according to the direction of the plaintiff. Defendants alleged that they were once given deduction in respect of 77 maunds 20 seers on account of transit shortage of rice from Warsaliganj to Gaya and Patna Junction, but the plaintiff had failed to take that into account, while making a claim. The defendants were thus, entitled to a sum of Rs. 1240/- in respect of that shortage. They were entitled to receive milling charges also at the rate of Rs. 1/4/- per maund of rice in respect of 542 maunds 20 seers and that came to Rs. 678/2A Accordingly, the Mill (defendant 1) had a counter claim to the tune of Rs. 20,929/12/6 and that was indicated in the written statement of defendants 2 and 3. After deducting the plaintiff's claim out of this amount, the defendants were still entitled to a decree for Rs. 7098/14/6. Defendants 4, 5, and 6 filed separate written statements and their case was that the contract was between the plaintiff and defendants 2 and 3 only. Ram Pratap Kamaha, during his life time, purchased the said Mills (defendant 1) from defendants 2 and 3, the two partners, and after his death, a trust was created for the administration of the estate left by him. They denied their liability in respect of any sum claimed by the plaintiff.

(3.) Plaintiff also filed a written statement, in answer to the claim for set off made by defendants 2 and 3. Plaintiff averred that paddy was brought from Orissa by the defendants under their supervision and they were liable to supply rice in respect of the entire quantity of paddy. The figures given in Statement I of the written statement were not correct, reasonable expenses had been already allowed to the defendants and there was no justification for the claims made by them. Defendants were not entitled to make any claim in respect of any shortage and plaintiff's liability in respect of the other claims also was denied.