BHANWARLAL Vs. STATE

JUDGEMENT

(1.) This is plaintiff's first appeal against the judgment and decree of the learned Additional District Judge No. 1, Jodhpur, dismissing the plaintiff's suit for the recovery of Rupees 16,620.41 p.

(2.) The facts giving rise to this litigation are in a nutshell as follows: The plaintiff obtained a licence for the retail sale of the country liquor for Panna Niwas shop in the town of Jodhpur. The period of the licence was to commence from August 4, 1962 and was to end on March 31, 1963. The licence was issued by the excise authorities under the guarantee system evolved under the rules made under the Rajasthan Excise Act. Under the terms of the licence, the plaintiff had to lift the country liquor from the State godown worth Rs. 1,01,802.00 The State was to realise the issue price from the plaintiff for delivering the country liquor which may be in force up to March 31. 1963. It is said that in pursuance of the terms of the licence, the plaintiff lifted liquor valued at Rupees 77,654.99 p. It is further said that the plaintiff deposited Rs. 24,147.01 p. for lifting the balance of the liquor to be supplied to him under the licence but the State Government failed to deliver that liquor to the plaintiff because it had no stock of liquor in its godown. It is further averred that the plaintiff was required to deposit Rs. 1,608.90 p. more as a difference in ,issue price. Thus, the liquor worth Rs. 25,827.91 p. could not be delivered by the excise department and the money remained deposited with the department. The plaintiff demanded the refund of this amount of Rs. 25,827.91 p. but it is alleged that in spite of the repeated requests made by the plaintiff, the department did not decide for the refund of the said amount. According to the averments made in the plaint, the department vide its order No. Ex/GU/69 dated nil informed the appellant plaintiff that he is entitled for the refund of Rs. 11,326/- only and the rest of his claim was rejected. This letter was received by the plaintiff on 21-12-1969. After the receipt of this letter, a notice was issued under Section 80, Civil Procedure Code, to the defendant State and thereafter the present suit was filed for the refund of Rs. 16,620.41 p. alleging that the cause of action to file this suit arose on the date when the State Government through its officer decided to refund Rs. 11,326.00 on 21-12-1969. The plaintiff claimed interest pendente lite and future interest on this amount of Rs. 16,620.41 p.

(3.) The State Government filed its written statement alleging that the State had the stock to deliver the liquor to the plaintiff in accordance with the terms of the licence but the plaintiff could not manage the sale of the country liquor according to the terms of the contract and therefore the plaintiff himself failed to lift the liquor from the State godown as per the terms of the licence. It was however admitted that the plaintiff came to take the delivery of the liquor for the remaining guarantee as late as on 30-3-1963. According to the averments made in the written statement, the State had the stock at its Mandore distillery but the plaintiff deliberately avoided to take the delivery of the liquor and thus he committed the breach of the contract and the defendants were therefore entitled to retain the amount of the guarantee money for which the plaintiff failed to lift the liquor. A plea was also taken that the suit was barred by time.