SHEO PRASAD SANTHELIA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been preferred by the plaintiffs against the judgment and decree passed by the Additional Subordinate Judge, Madhepura.

(2.) A suit was filed by the plaintiffs for recovery of Rs. 12,201/- on account of the dues which remained with the defendants on different items as mentioned in the plaint, for declaration that certificate case No. 147 of 1961-62 filed in the Court of the Certificate Officer. Supaul is illegal and liable to be cancelled and for the relief of a permanent injunction restraining the defendants from proceeding with the said certificate case. The plaintiffs case in short is that he was stockist of foodgrains for the Supply and Price Control Department. Supaul and plaintiff No. 2 had no concern with the aforesaid business at any time. The plaint states that plaintiff No. 1 was appointed as stockist on the 27th of May, 1955 and he executed a letter of undertaking Which was signed by plaintiff No. 1 on the one hand and by defendant No. 4, Welfare Officer, Koshi Project on the other. A copy of this agreement has been made annexure 'A' to the plaint. It is said that plaintiff No. 1 continued to work as stockist from 1955 till April, 1957 and an unilateral agreement was signed by plaintiff No. 1 alone on 18-6-1955. copy of which has been made annexure 'A'/1A to the plaint. The plaint further states that in May 1955, plaintiff No. 1 received 4837 Mds 37 seers of local rice from Nirmali and the said stock remained undisposed of in the Sodown of plaintiff No. 1 for about one and half years which resulted in the deterioration of the said foodgrains which became infested with worms. The department called tender for the disposal of the said stock but ultimately it was not disposed of. In December. 1956, there was a verification of the stock and it has been alleged that shortage found was 119 mds 37 seers 4 chataks. The further case of the plaintiff is that some time in May, 1956. Burma Arwa rice which wag stored at Allahabad for two years and deteriorated and infested with worms and insects was received by plaintiff No. 1 amounting to 9579 mds 37 seers 8 chataks. Thia stock remained with the plaintiff and had further deteriorated and became unfit even for storage and therefore plaintiff No. 1 requested the department to dispose of the said stock but the department did not pay any heed to the said request. It is said that there was a serious loss, deterioration and shortage of grain which wag beyond the control of plaintiff No. 1. The rice was used to be given to the dealer from time to time in presence of the Welfare Inspector after getting the same cleaned and separating the refuse from it which was the main cause of shortage. It has further been alleged by the plaintiff that in December, 1956, there was a partial verification of the aforesaid stock of Burma rice and on its basis calculation of shortage was made for the whole stock which came to 301 mds 36 seers 4 chataks. The plaint further states that in March and April, 1957, plaintiff No. 1 delivered the entire stock after clearing and seiving the foodgrain which caused huge shortage. This was done in presence of the Welfare Inspector and thus by the end of April. 1957 the whole stock was exhausted. The shortage was due to no fault of plaintiff No. I. It has been alleged that the rice used to be sold with gunny bags and the price realised by the Welfare Officer and plaintiff No. 1 had nothing to do with that. The dealers returned 3340 bags which were old and damaged and 392 bags remained in the godown of the plaintiff. Plaintiff No. 1 was always ready and willing to deliver the aforesaid bags to the department but the department never took delivery of the aforesaid bags. Plaintiff No. 1 has therefore claimed rent for the godown for keening the aforesaid bags. The plaint also gives the detail of items of accounts of claims in paragraphs 21 to 25 and 28 of the plaint. It has been further pleaded in the plaint that the department behind the back of the plaintiffs filed certificate case No. 1 of 1957-58 against the plaintiff No. 1 in which the latter filed an objection which was rejected but ultimately in appeal the same was allowed by the Additional Collector, Saharsa, who was pleased to remand the case by his order dated 10-6-1959. Thereafter the department withdrew the certificate case and accordingly it was dropped by an order dated 9-11-1959. Plaintiff No. 1 thereafter asked the department to pay his dues but no heed was paid by them. Thereafter the plaintiff No. 1 sent a notice under Section 80. Civil P. C. to the defendant in July, 1961. After receipt of notice, the plaint states, the defendants wrongfully filed a certificate case against plaintiffs Nos. 1 and 2 being certificate case No. 147 of 1961-62 claiming Rs. 9,903.43 paise besides interest after adjusting the security deposit. It has been pleaded in the plaint that the statement of accounts given with the said certificate case is wrong and nothing, is due to the department, plaintiff No. 2 was or is neither a partner with plaintiff No. 1 nor plaintiff No. 2 has executed any agreement with the department. He was never a stockist and he had nothing to do with the business and has been dragged in the aforesaid certificate case unnecessarily. The plaintiffs thereafter filed an objection to the aforesaid certificate case which was rejected by an order dated 21-7-1962. It has been further pleaded that the certificate officer had no jurisdiction to issue the aforesaid certificate and that the defendants have waived the notice under Section 80. Civil P. C. as they had secured orders for the distress warrant returnable within one month, that is before the expiry of two months as required under Section 80, Civil P. C. With the aforesaid allegations the present suit has been filed.

(3.) The defendants have jointly filed a written statement contesting the suit. They have however admitted that plaintiff No. 1 was the stockist of food-grain at Supaul under the Supply and Price Control Department from 1955 to April. 1957, and that he deposited Rupees 5,945/- as security deposit. It has been further admitted that the plaintiff was entitled to commission at the rate of 1 per cent on the value of the stock moved or sold and that a room was taken on rent from the plaintiff from 1-6-1955 to 31-12-1958 at the rate of Rs. 25/- per month which was the fair rent fixed for the said room. It has been further pleaded in defence that plaintiff No. 1 executed an agreement and he was removed from the stockist by a letter of the department dated 12-4-1957. The plaintiffs were responsible for the shortage found by the department and the said shortage was not due to any fault of the department taut due to negligence of the plaintiffs. It has also been pleaded in defence that the correct amount payable under various heads to the plaintiffs was Rupees 6,353/12/9 as contained in the statement of account which has been made a part of their written statement. The correct account has been furnished in certificate case No. 147 of 1961-62 and as per the said account the department is entitled to Rs. 9,903.43 paise which is the price of rice found short after adjustment of the dues payable to the plaintiffs. The further defence is that the suit is barred by limitation and notice under S. 80, Civil P- C. given by the plaintiffs is invalid and that on account of non-compliance of the provision of the said Section 80. Civil P. C. which is a mandatory one the suit is liable to be dismissed. The defendants have never waived the requirement of the aforesaid notice. With the aforesaid allegations the defendants have pleaded that the plaintiffs are not entitled to any relief and the suit is liable to be dismissed.