MALCHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff whose suit for for refund of Rs. 482.99 paise alleged to have been charged in excess as price of coal supplied to him and Rs. 30/ -on account of interest, total Rs 512. 99 paisa was dismissed by the Munsiff, Bikaner and whose appeal from the judgment and decree of the trial court was also dismissed by the Civil Judge, Bikaner.

(2.) THE facts giving rise to this appeal are short and simple The plaintiff made an application dated 2 -5 -1961 to the Mines Manager, Palana Colliery Mines. Falana for purchase of 108 Tons of coal on which the Mines Manager, D.W. 1 Shri M.C Fell ordered that a challan be issued for 108 Tons at the rate of Rs. 20/ -per Ton. A copy of this order has been placed on the record and marked Ex. 1. The plaintiff deposited Cs. 2160/ -being the cost of 108 Tons of coal at the rate of Rs. 20/ -per Ton at pits' amouth vide each challan dated 2 -5 -1961 marked Ex. 4. It appears that mean while the Government of Rajasthan had revised the rate of coel from, Rs. 20/ - to Rs. 24/ -per tone with effect from 27 -4 -1961 and on having received information to that effect by telegram a copy of which has been placed on the record, and marked Ex. A. 1, the Mines Manager demanded price of the coal from the plaintiff at the revised rate of Rs. 24/ -per tone, and the plaintiff deposited the difference on 12 -6 -61. The stipulated quantity of coal was delivered to the plaintiff but his grievance is that he was charged Rs. 482 99 paise more than the stipulated price. He, therefore, filed the present suit for refund of this amount along with Rs. 30/ -as interest, The suit was resisted by the State of Rajasthan.

(3.) LEARNED counsel for the appellant has urged that the finding of the learned Civil Judge that the plaintiff had not deposited the difference in the price under protest is incorrect as it has been clearly stated by the Mines Manager, D.W. 1 M.G. Fell that he could have refused to supply the stipulated quantity of coal to the plaintiff, if the latter had not deposited the difference in price. He has also contended that no such plea has been taken by the defendant in the written statement that the difference in the price was paid by the plaintiff voluntarily. It has also been argued that Sectoin 20 of the Indian Contract Act which has been pressed into service by the courts below has no application to the facts and circumstances of the present case as there was no mis -take as to a matter of fact essential to the agreement in the present case.