BHIKHRAJ JAIPURIA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both these appeals arise out of a money suit that was instituted by the Stale of Bihar through the Collector of Shahabad in the Court of the first Subordinate Judge, Arrah, on the 4th of December, 1952, for recovery of Rs. 85,023-2-6 as principal and interest of Rs. 43,361-13-0 on that, at the rate of Re. 1/- per month from the 19th August, 1948 to October, 1952. The total claim was Rs. 1,28,385/-. The services of the defendant were enlisted by the Collector of Shahabad with the approval of the Trade Adviser and the Chief Controller of the Supplies, Bihar, to purchase food grains for the State of Bihar in the district of Shahabad, and accordingly the defendant purchased and supplied the food grains under the name of "the Grain Supply Agency". This was done during the years 1943 to 1945, In that connection, the defendant received within the period from May to September 1943, Rs. 55,21,021-4-0 from the District Officer Shahabad, under several receipts and Rs. 21,30,000 from the Trade Adviser to the Government of Bihar. All this money was taken by the defendant as advances for purchase and supply of food grains. He executed an indemnity bond on the 28th June, 1945, in favour of the Governor of Bihar in which he admitted the receipt of the abovementioned money (Rs. 76,51,021-4-0). According to the plaintiff, by the supply of food grains and otherwise the defendant aforesaid for Rs. 76,65,998-2-6, (sic). As the balance of Rs. 85,023 2-6 was not refunded by the defendant in spite of repeated demands, the plaintiff instituted the suit for recovery of the same with interest as stated above. For the period from the 5th August, 1948 to October 1952, interest was claimed by way of damage as the defendant held up the money with him for such a long period. The cause of action for the suit was stated to be on the 4th August, 1948 when the account of adjustment was made and on the 25th May. 1950, when MIC defendant was called upon to settle the account.

(2.) In the written statement filed on the 18th November, 1953 the defendant pleaded that the suit was not maintainable and asserted that it had been agreed between him and the then Collector of Shahabad acting on behalf of the State of Bihar that all the expenses incurred in connection with the purchase of food grains, viz., godown rent, cartage, establishment charges, salary of the staff, the expenses on account of travelling, postage, telegram, weighment, Coolie, sewing etc., were to be borne by the Government and the defendant was to get commission by way of his remuneration for his services. The rate of commission was left to the discretion of the authorities concerned. In accordance with that arrangement, the defendant submitted his bills where all incidental expenses were mentioned. By the accounts submitted by him to the discrict authorities no money remained due from him; on the other hand, the plaintiff owed a large sum to the defendant. About the indemnity bond of the 28th June, 1945, he stated that it was for different purpose and was not connected with the suit matter. The accounts attached to the plaint, according to him, were wrong and incomplete. On the accounts already given by the defendant, Rs. 96,622-12-7 remained due to the defendant. The plaintiff instituted the present suit to avoid the defendant's pressure for payment of his dues. About the audit report, on the basis of which the plaintiff claimed the money in suit, the defendant stated that the audit authorities had no right or justification to change or vary the terms and conditions agreed between the defendant and the officers of the State and he (defendant) was not bound by their report. He appended to the writ-leu statement a letter which he wrote by way of reply to the audit report on the 15th July, 1948. Several different items were mentioned in the written statement to show that the account filed with the plaint was incorrect. Other pleas such is limitation, waiver, incompleteness and vagueness were also raised.

(3.) Five issues were framed on the above pleadings of which the first two were about maintainability of the suit and bar of limitation and the last one was about other reliefs, if any, to which the plaintiff was entitled. The other two issues were: "Is the plaintiff entitled to refund of Rs. 85,023 or any amount from the defendant"? and "Is the plaintiff entitled to gel interest by way of damages over the amount to he ultimately refunded by the defendant?"