HAZARILAL AND COMPANY Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE plaintiff has filed this appeal as the suit for refund of Rs. 34,179.50/ - has been dismissed by the trial court.

(2.) THE Civil Suit No. 2 of 1973 was filed by M/s Hazarilal and Company against the State of Rajasthan on 2 -1 -73, alleging that they are a partnership firm. The partners are Hazarilal, Brijlal and Dalip. The partnership has been registered under the Indian Partnership Act and possesses a certificate of registration. The three partners of the plaintiff firm took a Theka of the country liquor of Bolawali for the year 1969 -70. The licence was issued in the name of the three partners. In accordance with the terms of the Theka, the partners deposited a security amount of Rs. 31,790/ -and they were required to lift from the Government Godown a fixed quantity liquor after depositing every month a fixed amount. It was also agreed upon that the defendant State shall supply liquor on the tenth of each month at the rate of l/12th of the guarantee amount of issue price. The guarantee amount was Rs. 3,31,440. According to this contract the defendant State was required to supply liquor of Rs. 31790 every month. The partners lifted liquor of Rs. 347884.08 and only liquor of Rs. 33555.12 remained to be taken while an amount of Rs. 31790 and Rs. 2389.50 were lying deposit with the defendant State towards the price of liquor, excise duty and sales tax. The AEO of the defendant, however, failed to issue the requisite quantity of the liquor on the ground that they did not have the bottles for the purpose. The plaintiffs failed to lift the requisite amount of liquor on account of the failure of the concerned officers of the defendant State. At the end of the year the defendant State held that the plaintiffs failed to lift the minimum amount of liquor and adjusted a sum of Rs. 339.14 out of amount lying deposit with them

(3.) THE defendant State in reply alleged that the defendant State had given a Theka to Hazarilal, Brijlal and Dalip. The Theka was not to the partnership and, therefore, the firm was not entitled to bring the suit. The Excise Officers never refused to supply liquor and the failure was on the part of the plaintiffs themselves. The State was not liable to supply empty bottles to the licence holders. Therefore, the plaintiffs were not entitled to the refund of the deposit though the State agreed to refund the price of the liquor Rs. 2124 and the amount of Sales Tax Rs. 265.50 less Rs. 1765.92 of licence fee. The State also took an objection that the notice under Section 80, CPC, was not given by the licencees but by the firm and in the absence of notice by the partners the suit was not maintainable. Objections regarding the jurisdiction were also taken.