RAM SWARUP MARU Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal by defendant No. 2 is from the judgment and decree of the 2nd Additional subordinate Judge at Purnea passed in Money Suit No. 148/2 of 1956/1963 by which the suit of the plaintiff-respondent No. 1 has been decreed in part. The State of Bihar (Respondent No 1) filed the suit against the firm Messrs. Ganesh Rice Mill said to be also known as firm Jalalgarh Rice Mill of Jalalgarh in the district of Purnea and Ram Swarup Maru (defendant No. 2) said to be the proprietor of the firm defendant No. 1. The suit was for realisation of Rs. 29,492/10/3 pies. The plaintiffs case is that the defendants worked as purchasing and milling agent of the plaintiff during the years 1946-47. 1947-48 & 1948-49 under the grain supply scheme sponsored by the plaintiff. They had to supply rice extracted from paddy supplied to them on plaintiff's account at such scale, rate and quality as may be fixed by the prescribed authority on behalf of the plaintiff. The defendants executed an agreement dated 30-3-1948 to this effect. The plaintiffs case further is that the defendants received in all 22,748 maunds 2 seers of paddy from the plaintiff during the periods aforesaid including 16 maunds of paddy which was the balance due of the year 1946-47. The defendants were liable to supply 14.201 maunds 27 seers and 6 chhataks of rice to the plaintiff in lieu of the paddy received but they supplied only 13,620 maunds of rice on plaintiffs account between March, 1948 to March, 1950. They did not supply the balance of 581 maunds 27 seers 6 Chhataks of rice and retained the same with mala fide intention for wrongful gain and as such they are liable to pay the equivalent price of rice not supplied by way of damages to the plaintiff. The plaintiff has claimed a sum of Rs. 9.307/-on account of the price of rice at Rs. 16/-per maund and has adjusted a sum of Rs. 7,127/8/- that was payable to the defendants by the plaintiff against the account in question on account of their milling charge etc. due from the Government. The balance claimed is Rs. 2,179/8/-. The next item of claim was a small sum of Rs. 80/8/- on account of excess payment for cartage allowance on certain quantity of rice despatched.

(2.) The plaintiff's case further is that the defendants were supplied 58,000 new gunny bags and 38,092 once used gunny bags (which herein after will be referred to as the old bags) during the period between September, 1946 and March, 1948 while they were working as milling and purchasing agents. On accounting made by the plaintiff it was found that 24.514 new gunny bags and 3.074 old bags and 10.136 rotten bags remained with the defendants the value of which with sales tax came to Rs. 26.259/6/-. Adding to the various sums interest as per account given in schedule A appended to the plaint, the total claim in the suit as stated above, was to the tune of Rs. 29,492/10/3 pies.

(3.) Two written statements were filed by the appellant, one on 7-3-1963 and the other about a month later on 18-4-1963. The pleas taken by the appellant in the two written statements which are necessary to be stated are these The suit as framed Ss not maintainable The designation and description of defendant No. 1 indicating that Ganesh Rice Mill was also known as Jalalgarh Rice Mill is wrong and false. Defendant No. 2 was never the proprietor of the firm defendant No. 1. He was one of its partners along with seven others The partnership firm Messrs, Ganesh Rice Mill or Ganesh Rice Mill Company (whatever the name may be) was dissolved in or about the year 1951 and the firm was not in existence on the date of the suit which was not maintainable until and unless all the partners were impleaded as defendants in the suit. Ganesh Rice Mill worked as purchasing and milling agent of the plaintiff during the years 1946-47 to 1948-49 and supplied rice extracted from paddy supplied to the said mill. It was, however, not correct to say that the supply of rice was to be at such scale, rate and quality as prescribed by the prescribed authority on behalf of the plaintiff. The supply was according to the actual recovery. Defendant No. 2 only had executed an agreement on 30-3-1948 but the said agreement was not in accordance with law and it was not binding on the partnership firm. The figures given by the plaintiff in regard to the quantity of paddy or rice or its amount of claim on that basis were denied in the written statement The rate of rice to be Rs. 16/-per maund was also not admitted. Excess payment of cartage was also denied. In regard to the figure of bags it was asserted even in the first written statement that only 54,000 new gunny bags and 37,400 old gunny bags had been supplied to the defendants from the various persons on account of the plaintiff. As against the figure of receipt of bags, the mill's statement showed that 50,564 new bags and 14000 old bags were supplied back to the plaintiff during the relevant period. Besides that 19,790 bags got rotten when the defendants were handling paddy and rice on account of the plaintiff. Thus a balance of 10,046 bags only remained with the mill on 21-5-1950. The said statement of account was accepted by the District Supply Officer, Purnea. Even after 21-5-1950 the mill supplied rice to various individuals at the mill gate against permits issued by the District Supply Officer. Purnea and 480 new bags were utilised and supplied on the Government account for the purpose leaving a balance of 9,566 old and rotten bags only remaining with the defendant mill In spite of several requests made, the plaintiff did not care to remove those bags from the mill premises. The further case in the written statement is that while acting as purchasing agent Ganesh Rice Mill purchased paddy on Government account to the extent of 80,000 maunds and a large number of bags which were used in those transactions became torn and unfit for use on account of movement-storage of paddy in those bags. In the additional written statement some figures relating to the supply of paddy and rice were given. It was said that only 22,729 maunds of paddy were received on Government account obviously for husking and not 22,748 maunds as is the case of the plaintiff 50 maunds of paddy and 40 maunds of rice were lost by cyclone and rain in the year 1948 for which report was submitted to the District Supply Officer. Purnea and was verified by the Marketing Inspector of the plaintiff and it was found to be correct 60 maunds of rice were supplied to the District. Magistrate in the month of December, 1950 It was also claimed that there was shortage, shrinkage and wastage of rice and paddy and even permissible percentage under the Government circulars has not been allowed.