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High Court Of Calcutta
Anil Kumar Sen, M. N. Roy
STATE OF WEST BENGAL - Appellant
Versus
AJIT KUMAR MUKHERJEE - Respondent
F. A. 87 Of 1964
Decided On : 06/22/1976
SALE OF GOODS - CONTRACT - VALIDITY - SECTION 175 (3) OF THE GOVERNMENT OF INDIA ACT, 1935 - NOTICE UNDER SECTION 80 OF THE C. P. C. - SUFFICIENCY - INTEREST ON UNPAID PRICE OF GOODS - SECTION 61 OF THE SALE OF GOODS ACT.
Fact of the Case:
The plaintiff, a contractor in food in the Police departments in West Bengal, submitted a tender for the supply of ghee to the Superintendent of Police, 24 Parganas, which was accepted. The plaintiff supplied two consignments of ghee, which were approved and accepted by the defendants. However, the defendants later alleged that the ghee was adulterated and refused to pay for it. The plaintiff filed a suit for recovery of the price of the ghee and for damages.
Finding of the Court:
The court found that the plaintiff had supplied the ghee as per the contract and that the defendants had failed to prove that the ghee was adulterated. The court also held that the notice under Section 80 of the C. P. C. was sufficient and that the plaintiff was entitled to interest on the unpaid price of the goods from the date the price was withheld till the date of the institution of the suit.
Issues: 1. Whether the plaintiff had supplied the ghee as per the contract? 2. Whether the ghee was adulterated? 3. Whether the defendants were liable to pay for the ghee? 4. Whether the notice under Section 80 of the C. P. C. was sufficient? 5. Whether the plaintiff was entitled to interest on the unpaid price of the goods?
Ratio Decidendi: 1. The court held that the plaintiff had supplied the ghee as per the contract, as evidenced by the acceptance of the ghee by the defendants and the fact that a portion of the ghee had been consumed by the defendants. 2. The court held that the defendants had failed to prove that the ghee was adulterated, as the samples for the alleged tests were not drawn properly from the supplies effected by the plaintiff. 3. The court held that the defendants were liable to pay for the ghee, as they had accepted the ghee and consumed a portion of it, and had failed to prove that the ghee was adulterated. 4. The court held that the notice under Section 80 of the C. P. C. was sufficient, as it broadly made out the case which was proposed to be brought and specified the nature of the suit, the facts on which the claim was founded, and the precise reliefs asked for. 5. The court held that the plaintiff was entitled to interest on the unpaid price of the goods from the date the price was withheld till the date of the institution of the suit, as interest is payable under Section 61 of the Sale of Goods Act.
Final Decision: The appeal was dismissed and the cross-objections were allowed in part. The decree was modified to allow interest at three per cent per annum from the date the corrected bill was submitted by the plaintiff till the date of the decree.
( 1 ) THIS appeal is directed against the judgment and decree dated March 6. 1963 bv the learned Subordinate Judge, 6th Court, Alipore, made in Money Suit No. 13 of 1958, The plaintiff respondent (hereinafter referred to as the plaintiff) at all material times and still is carrying on business under the name and style of Pearson Trading Company at 1/5, Raja Basanta Roy Road, Calcutta-26, as a contractor in food in the Police departments in West Bengal and several other mercantile concerns, pursuant to an invitation of a tender for the supply of die-tory articles, including cow and Bhaisa ghee by the Superintendent of Police, 24 Parganas, he on November 5, 1948 submitted a tender for such articles of cow and Bhaisa ghee at the following rates :
(1) Buffalow ghee @ Rs. 235/- (2) Cows ghee @ Rs. 295/-
(No. 1)Guarantee % per cent.
(3) Cows ghee
per maund (No. 2)
@ Rs. 220/-
Such tender of the plaintiff was accepted by the said Superintendent of Police by his letter of November 18, 1948 for the month of November, 1948 and he was directed to supply 100 maunds of Bhaisa ghee as per his sample. It is also an admitted fact that pursuant to such acceptance and order, the plaintiff at first delivered 26 maunds 6 seers and 14 chataks of Bhaisa ghee in 59 containers on November 19, 1948 and thereafter, on November 24. 1948 he delivered another consignment of 75 maunds 20 seers of Bhaisa ghee in 171 containers. It is also not disputed that the supplies in question were approved and accepted and thereafter, the plaintiff on Dec. 4, 1948 placed his bill for Rs. 23. 891. 14 as 3 pies, as price of 130 tins containing 101 maunds 26 seers 14 chataks of Bhaisa ghee. Since there were some errors in calculation, the said bill was ultimately returned to the plaintiff for correction, who thereafter on December 8, 1948 presented a corrected bill for Rupees 23. 892-14 as 3 pies for the goods supplied. It appears that by Memorandum No. R/543 dated December 21, 1948, the plaintiff was informed by the Superintendent of Police concerned that the supplies so made by him were adulterated end he was asked to take back the tins which were lying in the store of the said defendant and to sub-mit a fresh bill for the quantity of ghee actually consumed. Since there was delay in making the payments for such supply of ghee, the plaintiff on December 23, 1948 requested the Superintendent of Police concerned to send a cheque for the price of the goods so supplied. It also appears from the records that on receipt of the letter of December 21, 1948 from the Superintendent of Police concerned, the plaintiff by his letter of January 6, 1949 denied the charges of adulteration as was alleged. It would also appear that before the said letter of January 6, 1949, the plaintiff with his representatives had been to the Ration Store of the defendants on January 4, 1949 to take back the unconsumed tins lying at the said godown and at that time on proper examination of the tins it was found out to their utter surprise that they did not belong to them. Such detection was made when the plaintiff found that the secret marks "sb" which were given on the tins so supplied by him were conspicuously absent. By the said letter of January 6, 1949 the plaintiff also contended that the tins supplied by him have been replaced and that has placed 'him in such an awkward position that he could not take back those tins as per the directions as mentioned above. In the said letter the plaintiff also alleged that some underhand means have worked with the mala fide intention to harass him. It was also stated by the plaintiff in the said letter that the samples sent for test by the said defendants were not taken in his presence nor did they bear Ms official seals and signature and it was quite possible that samples were taken through oversight from the stocks supplied by other contractors. The plaintiff also made it clear in his letter under reference that he would have cer
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