CSA/55/1983 of STATE Vs ALLABUX on 19 December 2005

Facts

(1) S.B. Civil Second Appeal No.54/1983

The State of Raj. vs. Sunder Lal & ors.

(2) S.B. Civil Second Appeal No.55/1983The State of Raj. vs. AllabuxThe State of Raj. vs. Allabux under Section 100 C.P.C. against the judgment anddecree dated 6.12.1982 passed by the District Judge,Udaipur in Civil Cases No.30/1981 and 29/1981respectively.

Date of Judgment:

December 19,2005.

PRESENTHON'BLE MR. PRAKASH TATIA,J.

Mr. O.P. Rathi, Deputy Govt. Advocate.

BY THE COURT:

Heard learned counsel for the appellant and perused the record also.

By this common judgment, both the appeals are being decidedbecause of the simple reason that the facts of both the case are entirelyidentical except the quantity of the goods and the amount paid by theplaintiff to the defendant, therefore, the facts of the case of State vs.Sunder Lal and ors. will serve the purpose for deciding appealno.55/1983.

Brief facts of the case are that the plaintiff-respondent gave bidto purchase 'kattha' and he was the highest bidder, therefore, the contract was awarded to the respondent at the rate of Rs.1605/- perquintal. The plaintiff deposited Rs.11,350/- on 8.6.1973, Rs.16,000/- on2.7.1973, Rs.25,000/- on 23.8.1973, Rs. 25,000/- on 10.10.1973 andRs.20,000/-on 18.10.1973. According to the plaintiff, the plaintiffdeposited all the amounts in time but the respondent-defendant-department was not in position to weigh and deliver the said 'kattha' tothe plaintiff because the 'kattha' was wet and it could have beendelivered to the plaintiff only after it is dried up by giving air. Despitethe fact that the respondents were not in position to deliver the goodsto the plaintiff and delayed the matter but charged the rent of the storefrom the plaintiff on the ground that the goods were not lifted by theplaintiff. However, the plaintiff had no option at that time, therefore,he deposited the go-down rent. The plaintiff thereafter filed suit forrecovery of total Rs.4193/-, which according to the plaintiff wasrecovered from the plaintiff illegally by the respondent. The appellant-defendant contested the suit of the plaintiff. The trial court held thatthe defendant could not have delivered the goods to the plaintiffwithout making the said commodity 'kattha' dried up and there was nofault of the plaintiff in taking delivery, therefore, the defendants haveno right to recover amount from the plaintiff. The trial court, therefore,decreed the suit of the plaintiff on 2.2.1981 for as sum of Rs.3907.35along with interest. The present appellant preferred appeal which was also dismissed by the first appellate court on 6.12.1982. Hence thissecond appeal.

Following substantial questions of law were framed by this Court while admitting second appeal on 24.10.1983:- “(1) Whether the findings of the courts below thatthe plaintiff was to obtain possession of the katha onlywhen it was dry and, therefore, he was not liable to go-down rent and interest, is based on mis-interpretation ofthe contract?

(2) Whether there could be an oral agreementregarding the delivery of the katha only when it was dry incontravention of the written agreement?(3) Whether the letter Ex.2 is not binding on theState?”

The learned counsel for the appellant submits that in the light of the written contract, the plaintiff-respondent could not have took theplea that the defendant-appellant agreed to sell the dried 'kattha' to the plaintiff. It is also submitted that the plaintiff's plea could not havebeen entertained which contradicted the written agreement and theEx.2 relied upon by the plaintiff is not binding on the State as it is aletter written by the officer of the State whereas the terms of theagreement are reduced in writing and the letter Ex.2 contradicts thewritten agreement between the parties.

I considered the submissions of the learned counsel for theappellant and perused the record also.

It may be noticed that in the agreement it is nowhere mentionedthat whether the kattha' is being sold as it is available only or it will befirst dried up and thereafter the commodity will be delivered to thesuccessful bidder. Therefore, it cannot be said that there was a writtenagreement between the parties that the only kattha' as is in existence,may it be wet or dried, is being sold. Any fact which supplements thefacts to the agreement Ex.A.1 and which was found in consonance withthe events taken place, cannot be said to be a fact contradicting thewritten agreement. The letter relied upon by the two courts belowclearly reveals that the plaintiff was informed that now the 'kattha' isdried and he may take delivery. In view of the above, it cannot be saidthat Ex.2 is not binding or the plaintiff wanted to contradict the writtenagreement by oral agreement. Hence the substantial questions no.2 and3 are decided against the appellant. Since the plaintiff successfullyproved that delay was not caused by the plaintiff in taking delivery butdelay was caused because the appellant-defendant was not in positionto deliver the goods to the plaintiff, therefore, the appellant-defendanthave no right to claim go-down rent from the plaintiff.

In view of the above, I do not find any merit in these appeals andhence the appeals of the appellant are dismissed.

( PRAKASH TATIA ),J.