Advocates:
['M V DESHPANDE', '', 'S V KURUNDKAR', 'S V NATU', '', 'FOR R/ &']

{1}

FA 417.00.odt

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO. 417 OF 2000

Nanded Municipal Council,

Nanded and Nanded Waghala Municipal

Corporation, Nanded, through its

Commissioner.

.. APPELLANTS

[Ori. Plaintiff}

VERSUS

1] The Janata Sahakari Bank Ltd.,

Pune, Central Office 1444,

Shukrawar Peth, Thorle Bajirao

Road, Pune 411 002

2] The Janata Sahakari Bank Ltd.,

Pune, Branch at Aurangabad,

Through its Manager.

.. RESPONDENTS

[Ori. Defendants]

Mr. Murar V. Deshpande, Advocate for the appellants,

Mr. S.V. Natu, Advocate for respondents.

CORAM : B.P. DHARMADHIKARI

& A.M. BADAR, JJ.

DATE : 20TH NOVEMBER, 2014.

ORAL JUDGMENT [ PER B.P. DHARMADHIKARI,J}:-

1]

This appeal under Section 96 of CPC is filed by original plaintiff

challenging the judgment and decree dated 24.7.2000 delivered by Civil

Judge (Senior Division) Nanded in Special Civil Suit No. 164 of 1995,

dismissing the suit for recovery of the amount of Rs.68,97,235/- with future

interest @ 20% p.a. The amount represented the sum of bank guarantee

{2}

FA 417.00.odt

extended by present respondents (original defendants) in favour of a person,

who had been given a contract to collect octroi by appellant/Municipal

Council. Needless to mention that appellant is a local authority and a

Municipal Council constituted under the Maharashtra Municipalities Nagar

Panchayats and Industrial Townships Act, 1965.

2]

The trial court framed following issues and answered the same

as mentioned against each issue.

Sr.

No.

ISSUES

FINDINGS

1

Does the plaintiff prove the terms and

conditions of the contract dated 31.8.1994,

executed between plaintiff & Deogiri

Pratishthan

Yes

2

Does it further prove that, it has appointed

Deogiri Pratishthan, Aurangabad as an agent

for collection of Octroi duties for the period

for 1.9.1994 to 31.3.1995 for consideration

of Rs.3.87 Crores ?

Yes.

3

Does it prove that, defendant No.2 has

executed Bank Guarantees in its favour for

Rs.61,000,000/- on 30.8.1994 by way of

security

Yes.

4

Does it further prove that, the said agent

has defaulted in payment of Rs.68,50,824.04

ps. For the period of 12 weeks w.e.f.

1.9.1994 to 21.11.1994 ?

Yes

5

Does it prove that, all the four Bank

Guarantees were forfeited and were

forwarded for encashment but were

dishonoured ?

Yes

6

Does it prove that, the agent committed

breach of the terms and conditions and

therefore the agency was cancelled by

terminating the contract ?

Yes

{3}

FA 417.00.odt

7

Does it prove that, it demanded the said

amount by issuing demand notices ?

Yes

8

Is the suit bad for non-joinder of necessary

party ?

Yes

9

Is the suit barred by territorial jurisdiction ?

No

10

Does the plaintiff prove that, time was the

essence of contract ?

Yes

11

Do defendants prove that, the agreement of

contract is void agreement ?

No

12

Is the plaintiff entitled for the suit claims of

recovery of Rs.68,97,235/- with interest at

the rate of 20% per annum upto 30.6.1995 ?

Yes

13

Is the plaintiff entitled for future interest at

the rate of 20% per annum ?

Yes

14

Do the defendants prove that, the contract

has been frustrated ?

No

15

Whether the suit is maintainable for want of

notice U/sec. 164 of Maharashtra

Cooperative Societies Act ?

No.

16

What relief as to order and cost ?

The suit and the counter

claim are dismissed.

3]

Thus, the suit has been dismissed because of a finding that a

necessary party, namely, the contractor, who had agreed to collect Octroi

was not joined as party defendant and second ground given is tha