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S.N. Barick Vs. State of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberSuit No. 1164 of 1951
Judge
Reported inAIR1963Cal79,66CWN861
ActsCode of Civil Procedure (CPC) , 1908 - Section 80; ;Contract Act, 1872 - Section 182; ;West Bengal Cement Control Act, 1948
AppellantS.N. Barick
RespondentState of West Bengal and anr.
DispositionSuit dismissed
Cases ReferredHari Charan Das v. Taraprasanna Sen
Excerpt:
- a.k. mukherjee, j. 1. this is a suit for the recovery of thesum of rs. 1512/2/3 pies from the defendants. thefacts and circumstances of the case are as follows : 2. some time in march 1949 the plaintiff made an application to the civil supplies department of the government of west bengal for a permit for the supply of 15 tons of cement. at that time the cement control act was in force and it was not possible to procure cement in the open market. the government of west bengal issued a permit in favour of the plaintiff for 15 tons of cement which under the terms of the permit were to be supplied by messrs. bharatiya byapar mondal, the defendant no. 2 in this suit. under the terms and conditions of the said permit delivery of the cement was to be taken within 20 days from the date of the.....
Judgment:

A.K. Mukherjee, J.

1. This is a suit for the recovery of thesum of Rs. 1512/2/3 pies from the defendants. Thefacts and circumstances of the case are as follows :

2. Some time in March 1949 the plaintiff made an application to the Civil Supplies Department of the Government of West Bengal for a permit for the supply of 15 tons of cement. At that time the Cement Control Act was in force and it was not possible to procure cement in the open market. The Government of West Bengal issued a permit in favour of the plaintiff for 15 tons of cement which under the terms of the permit were to be supplied by Messrs. Bharatiya Byapar Mondal, the defendant No. 2 in this suit. Under the terms and conditions of the said permit delivery of the cement was to be taken within 20 days from the date of the issue of the permit and the plaintiff was directed to deposit the price of the cement with the stockist within a week from the date of the receipt of the license. After obtaining the permit the plaintiff gave a cheque for the sum at Rs. 2264/14/- to the defendant No. 2. He was asked to go for taking delivery of the cement about a week after he had handed over the cheque so that the cheque could be encashed in the meantime. The defendant No. 2 gave a delivery challan. Subsequently the plaintiff was given delivery only of 5 tons of cement. This cement was of a very inferior quality and the plaintiff complains that after taking delivery of the bags of cement he found that the cement had been opened and rebagged obviously after it had been tampered with. Apart from these 5 tons of Cement of inferior quality the plaintiff did not receive any further quantity of cement. He wrote several times to the defendant No. 2 for delivery of the balance quantity of the cement but he does not appear to have received anything. He wrote to the officers of the State of West Bengal, the defendant No. 1, in this connection but all attempts to get further quantities of cement from the defendant No. 2 were futile. Thereafter this suit was filed on March 9, 1951.

3. The plaintiff makes the defendant 'Stale of West Bengal responsible for the loss that he has suffered on the ground that the defendant No. 2 was the approved agent of the defendant No. 1 and the sum of Rs. 22S4/14/-had been paid by the plaintiff to the defendant No. 2 as the agent of the defendant No. 1 and under the directions of the defendant No. 1.

4. The suit is being contested by the defendant No. 1. The defendant No. 2 did not enter appearance. In fact, it appears that the said defendant can no longer be traced and whoever were the proprietors of that firm have disappeared from the scene altogether.

5. In the Written Statement filed by the State of West Bengal they have taken the point that the defendant No. 2 was merely an authorised dealer and stockist of cement under the Cement Control Order regulating the sale and purchase of cement and that the defendant No. 2 was never the agent of the defendant No. 1. In the circumstances, the plaintiff has no cause of action against the defendant.

6. On these pleadings the following issues were settled for determination :--

(a) Did the defendant direct the plaintiff to deposit any amount to defendant No. 2?

(b) Did the plaintiff deposit any amount with the defendant No. 2?

2. Did the defendant No. 2 fail to deliver 10 tons of cement?

3. Was the sum of Rs. 2,264/14 as paid by the plaintiff to defendant No. 2 as agent of defendant No. 1?

4. Has the plaintiff any cause of action against defendant No. 17

5. Is the notice alleged to be under Section 80 C. P. C.valid and sufficient?

6. To what relief is the plaintiff entitled?

7. Dr. Das appearing on behalf of the plaintiff has made it clear that his client is not interested in any decree against the defendant No. 2. Obviously such a decree would be a paper decree and would give no relief to the plaintiff.

8. An agreed brief of documents (with the exception of four documents) was tendered at the time of hearing and marked by consent as Ex. A.

9. Two witnesses were examined on behalf of the plaintiff. The plaintiff Sachindra Nath Barik himself gave evidence regarding the actual facts of this case. Apart from the plaintiff there was one other witness namely Harendra Nath Das, an employee of the plaintiff's solicitor, Messrs. S. N. Mukherji and Co. He was examined to prove the service of the notice under Section 80 of the Civil Procedure Code. No evidence was adduced on behalf of the defendant No. 1.

10. The plaintiff's evidence, in short, is a mere statement in support of the case made out in the plaint. There is only one significant addition in so far as in his evidence in court the plaintiff seeks to represent for the first time that when he was given the permit to take delivery of cement from the defendant No. 2, the Director of Consumer Goods who issued the permit had made a categorical statement to the effect that the defendant No. 2 was an agent of defendant No. 1.

11. From the evidence adduced in court as well as from the documents which have been proved, there does not seem to be the slightest doubt that the plaintiff has, in fact, been defrauded of some money by the defendant No. 2. It is clear that the plaintiff received only 5 tons of cement. The allegation that he received inferior cement was not seriously sought to be proved before me and Dr. Das gave up his client's claim relating to these 5 tons. Dr. Das confined himself to the claim for the refund of the price of 10 tons of cement which have not been supplied to his client.

12. It is not seriously questioned or doubted that the plaintiff never received his 10 tons of cement from the defendant No. 2. On these facts, therefore it would have been very simple to give a decree against the defendant No. 2. But unfortunately the defendant No. 2 has completely disappeared from the scene after having defrauded the plaintiff of the value of this quantity of cement and any decree given against the defendant No. 2 would be poor consolation to the plaintiff. That is why the plaintiff has sought to get some relief against the defendant No. 1. The only important question, therefore, is whether the defendant No. 1 can be made liable for the money which the defendant No. 2 has taken from the plaintiff. In substance, the question is whether the defendant No. 2 was an agent of defendant No. 1 for, it the defendant No. 2 were such an agent, the defendant No. 1 would be clearly under an obligation to reimburse the plaintiff for the sum that he has lost. I now propose to apply myself to an investigation of that question.

13. The West Bengal Cement Control Act, 1948, (hereinafter referred to as the Act), gave power to the Provincial Government to control the production, supply, as well as distribution of cement. The Act authorised the Government to promulgate various orders making provisions, among other things, for regulating by licences, permits or otherwise storage, transport, movement, possession, distribution, disposal, acquisition, use or consumption of cement. The net effect of the various orders issued under the Act was to make it impossible for a consumer to procure any supply of cement from the open market. No person could sell or store for sale any cement except on the strength of a licence issued in this behalf by Government, nor could any person dispose of any cement except in accordance with the conditions contained in a written order by the Director of Consumer Goods. Every stockist of cement was bound under the same provisions to sell and deliver cement to the buyer who was armed with a written order from the Director of Consumer Goods within a reasonable time after payment of the price. In short, the distribution of cement from the manufacturer right up to the consumer through the various trade channels was strictly regulated by the issue of permits, licences and written orders under the various provisions of the Cement Control Orders issued under the Act. As this point is not seriously contested by Mr. Das and as this point is apparent from a mere cursory examination of the provisions of the Act as well as of the various notifications issued under the Act, I refrain from setting out the relevant provisions of the Orders and the Act.

14. There is nothing in the Cement Control Act or in the various Orders promulgated under the Act which make a stockist of cement an agent of Government. All that the Act and the orders effect is to bring the stockists under the control and supervision of Government. If the mere fact that a stockist is under the control and supervision of Government would make the stockist an agent of Government, it could be argued with equal strength that a consumer of cement, who also is under the strict control of Government in the matter of his user and consumption of cement, would be an agent of Government. Mr. Basak appearing on behalf of the defendants No. 1 argued that the very existence of the Act and the order made it clear that the defendant No. 2 was not, and could not be, an agent of defendant No. 1. I am afraid I cannot accept the argument of Mr. Basak. To say that the Act and the orders do not make a stockist of cement automatically an agent of Government is not the same Wing as to hold that the provisions of the Act and the orders would debar a stockist of cement from being an agent of Government. In fact, to my mind, the question of agency will not turn on the provisions of the Cement Control Act and Orders as they now stand. Even apart from the Act and Orders, there may be a relationship of agency between a stockist of cement and Government. That relationship will stand outside the scope of the Act and will be an entirely independent matter unaffected by the provisions of the Act or the Orders made thereunder. That is to say, whether a stockist of cement is an agent of Government or not will depend on independent facts having nothing to do with the provisions of the Cement Control Act or the Cement Control Orders.

15. Mr. Basak has drawn my attention to the case of Pasupati Gorai v. Brindaban Khan, ILR 1951 (1) Cal 82. That was a case concerning the Cotton Cloth and Yarn Control Order, 1945. In that case the plaintiff brought certain bales of textile goods from the defendant, who, after having obtained the full value of the goods, gave short delivery as well as failed to give delivery of certain goods for which he had received the price. The plaintiff claimed the price for which he had received no goods. The defendant took the defence in that case that the defendant was a mere handling agent of Govt. and sold the goods to the plaintiff as an agent of Government, so that, if there was any claim orthe plaintiff, such claim should have been pursued against the Government. The main point for determination in that case was also whether the provisions of the Cotton Cloth and Yarn Control Order of 1945, which are in many respects similar to the provisions of the Cement Control Act, founded any relationship of agency between Government and the handling agent. The matter cams up to the Calcutta High Court from a decision of the learned Small Cause Court, Calcutta. Das J. held that the defendant was not an agent on behalf of the Government and that the defendant was therefore personally liable for the claim of the plaintiff. In the opinion of Das J. the Cotton Cloth and Yarn Control Order does not affect the mutual relations of manufacturers, wholesale dealers and retailers but merely imposes a restriction as regards the price of the textiles and the persons who are entitled to deal with them in the market and in the scheme of things envisaged in that Order, it was a misnomer to describe, the defendant as an agent of the Government With respect, I agree with the views of Das J. that mere control or restriction does not connote a relationship of principal and agent.

16. Dealing with the question of creation of an agency Bowstead in his famous work on the Law of Agency, 11th Edition, states as follows:

The relationship of principal and agent may be constituted --

(a) by express appointment of the principal, or by a person duly authorised by the principal to make such appointment;

(b) by implication of law, from the conduct or situation of the parties or from the necessity of the case, or

(c) by subsequent ratification by the principal oracts done on his behalf.

17. In the present case there is no evidence to show that the defendant No. 2 was expressly appointed as an agent by the defendant No. 1. There is only evidence to show that he was subject to some amount of control, supervision and restriction by the defendant No. 1 but such control and supervision were obviously the results of the Cement Control Act and the Cement Control Orders promulgated under the Act. There is nothing to show that in the absence of the Cement Control Act and the Orders the defendant No. 1 would have had any control or right of supervision over the defendant No. 2. It cannot be said that the money was received by the defendant No. 2 on behalf of the defendant No. 1. It is a matter of common knowledge that monies due to Government are usually paid to Government by challans in the Treasury or by way of affixation of stamps. The plaintiff himself admitted this in evidence, though no evidence would really be necessary for this well-known practice. In the absence of any evidence to show that a special system had been introduced under which the defendant No. 2 was authorised to receive monies on behalf of the defendant No. 1 or to show that the monies received by the stockists of cement, and the defendant No. 2 in particular, were ultimately to find their way to the coffers of the defendant No. 1, I see no warrant for holding that the defendant No. 2 was a mere agent of the principal in receiving the price of cement from the plaintiff. The scheme of the Cement Control Act and the Orders thereunder show that the stockist in this case was merely acting under the orders of the defendant No. 1 in the, matter of sale of cement to the plaintiff.

18. Nor is there any evidence to show that the Act of the defendant No. 2 had been subsequently ratified bythe defendant No. 1 as an act done on its behalf. In fact it is not anybody's case that the Government of West Bengal received the money of the plaintiff. Therefore, the only other way by which the relationship of principal and agent could be established in the circumstances of this case is by implication of law from the conduct or situation of the parties. I know of no law which indicates that the conduct of the parties in this case was such as would imply that the defendant No. 2 was an agent of the defendant No. 1.

19. There has been an attempt on behalf of the plaintiff to give evidence to show that the Director of Consumer Goods described the defendant No. 2 as his agent. It is curious that in none of the various letters that passed between the plaintiff and the defendant No. 1 was any case made out by the plaintiff that the defendant No. 2 was the agent of the defendant No. 1. On the other hand, it is apparent from the various letters addressed by the plaintiff that the plaintiff was soliciting the good offices of the defendant No. 1 in the matter of getting a refund from the defendant No. 2. Thus in his letter of July 18, 1949 the plaintiff is complaining to Government against the defendant No. 2. There is not one word in the whole letter which shows that the plaintiff held the Government as responsible for the money. Thereafter in the letter of January 16, 1950 the plaintiff again wrote to the Deputy Director of Consumer Goods in which he requests the Deputy Director to direct the defendant No. 2 to refund the money due to the plaintiff. It will be noticed that the plaintiff complains 'that the money has not been refunded by the said firm' and ail that the plaintiff requests is that Government should 'direct the said firm to refund'. It is an obvious attempt to ask the Government to mediate. In a letter dated February 3, 1950 the Assistant Director of Consumer Goods, writing on behalf of the Director, ashed the defendant No. 2 to refund the money to the plaintiff. The defendant No. 2 is also asked to explain why the money had been held up. This letter only shows that the defendant No. 2 was subject to the control of the Government of West Bengal to some extent. It is apparent that any stockist who would defraud a consumer or who would not act pursuant to the direction of the Government would promptly lose his status as an approved stockist. That is the obvious sanction under which Government were directing the defendant No. 2 to make a refund of the money to the plaintiff. On May 31, 1950 the plaintiff was writing to the defendant No. 2. Here also the entire liability was placed on the defendant No. 2. There is not a word in that letter to show that the plaintiff looked upon the defendant No. 2 as a mere agent. The same is true of the letter of May 31, 1950 addressed by the plaintiff to the defendant No. 2. it is only in the letter of June 26, 1950 that the plaintiff, for the first time, holds the Government responsible for the fact that he has not received back the refund of money 'from your authorised stockist Bharatiya Byapar Mondal'. The same letter shows that on May 31, 1950 the plaintiff had addressed a letter to the stockist under registered post and that the letter had come back with the remark 'left' on 1-6-50. This explains the sudden change in the attitude of the plaintiff. The defendant No. 2 had suddenly disappeared with the money of the plaintiff. In the circumstances the plaintiff found himself in a position when he had lost some money and was without any hope of retrieving it unless the Government of West Bengal would agree to refund It. That is why at this very late stage the plaintiff is trying to throw the responsibility on the Government of westBengal and therefore calls upon the Government of West Bengal 'to arrange forthwith immediate refund of the money. After this the, only other letter the plaintiff addressed was the notice under section 80 of the Code or Civil Procedure which is actually written by his solicitor. The analysis of these various letters shows that until June 26, 1950 the plaintiff did not hold the Government of West Bengal responsible for his money. It was only after he had found that the defendant No. 2 had 'left' that he turned to Government of West Bengal for relief.

20. in his evidence before me the plaintiff has slightly tried to improve his case by saying that he had met the Director of Consumer Goods when he went to obtain the permit for 15 tons of cement and that the said Director had clearly directed him to deposit money with their 'approved agent'. The following questions and answers show the evidence of the plaintiff on this point ;

Q. 4. After you got the permit, what did you do?-- After obtaining the permit for 15 tons of cement, I went to the Civil Supplies Office and saw the Director of Consumer Goods. There I was directed to deposit money with their approved agent.

Q. 5. Who directed you? -- Perhaps at that time Mr. Mitter was there.

Q.6. Who is Mr. Mitter -- He was the Director of Consumer Goods.

Q. 7. State clearly what directions he gave you? -- He said, 'our approved agent is there. He will sell cement. After the deposit of money by you, the cash memo will be handed over to you and the delivery will be effected in your favour.'

Q. 48. You have told My Lord that the Government gave direction which was explicit on the permit that payment be made to approved agent. Will you find that out from that permit -- Yes, here is the direction -- it reads as follows: 'The delivery of materials allotted under this permit must be taken within 20 days from the date of its issue and the prices of materials involved must be deposited with the stockist'. This is the direction.

Q. 49. So, relying on this part of the document you say Govt. gave direction to make payment to the Govts. agent -- Yes, this is the direction. Apart from this,. Mr. Mitter asked me to do so.

Q. 50. Asked to do as stated in the permit -- Asked me to deposit money with their agent.

Q. 51. Agent as stated in the permit ?-- Yes.

21. There is no doubt that a mere statement of the Director of Consumer Goods would not make the defendant No. 2 an agent of the Government but the statement of the Director would certainly be an item of evidence in support of the actual existence of such a relationship. I am afraid, however, that I do not believe the testimony of the plaintiff on this point. There is no reference in any of his letters to this particular conversation that he had with the Director. If the Director had actually described the defendant No. 2 as an agent of the Government it stands to reason that the plaintiff in his letters addressed to the Director or the Assistant Director would have mentioned this conversation and would have in fact made Government responsible for the loss that he had suffered right from the beginning. There is, however, no indication of any such conversation in his letters. He gives an account of this conversation only after 13 years from the witness box. I can only regard it as an attempt to improve his case and to Introduce anelement of evidence in support of his case that the defendant No. 2 was an agent of the defendant No. 1.

22. I shall now deal with certain special arguments advanced by Dr. Das in support of his contention that the defendant No. 2 was the agent of defendant No. 1.

23. First, Dr. Das argued that the plaintiffs only transaction was with Government. He had made an application for permit to defendant No. 1. That was tantamount to an offer to purchase cement. In response to that offer, Government granted a permit to the plaintiff. The entire transaction of sale which was intended to take place was covered by such terms and conditions as are to be found in the permit. The name of Bharatiya Byapar Mandal, that is the defendant No. 2, appears on the permit as one who was to give actual delivery of the cement. Therefore, in this transaction, Government was clearly appearing as a principal and the plaintiff could treat only the defendant No. 1 as the principal.

24. Secondly, Dr. Das argued that the permit in question contained a positive direction by Government asking the plaintiff to hand over the money to defendant No. 2. In the absence of further evidence it is to be presumed that the defendant No. 2 was to act as an agent of Government in this matter. If the relationship between the defendant No. 1 and the defendant No. 2 was not that of agency, it was for Government to explain the trend of the various letters which Government addressed to defendant No. 2 directing the defendant No. 2 to refund the money to the plaintiff, and which express an attitude which indicates that they had certain amount of control over the conduct of the defendant No. 2.

25. Thirdly, Dr. Das argued that the defendant No. 2 was admittedly discharging certain functions under the Cement Control Act under the control and supervision of the Government of West Bengal. The exact relationship between the Government and the defendant No. 2 will appear from the terms of appointment of defendant No. 2 as a stockist. Since the Government has not disclosed any evidence as to such terms of appointment, an adverse inference should be drawn against Government in this matter and it should be presumed that the defendant No. 2 was actually the agent of Government and that this relationship would have been established if the actual contract of appointment of the defendant No. 2 as stockist had been disclosed.

26. Fourthly, Dr. Das argued that Bharatiya Byapar Mandal as stockist or dealer was certainly an agent of Government and Bharatiya Byapar Mandal received the price from the plaintiff also in pursuance of the directions from Government. Therefore, if it can be shown that the receipt of the price was incidental to taking delivery from the stockist, then the defendant No. 2 would be actually receiving the price qua agent.

27. I have carefully considered the arguments of Or. Das and I must say that I cannot persuade myself to accept the same. I shall deal with Dr. Dasis arguments one by one.

28. Dr. Dasis first argument turns on the proposition that the plaintiffs transaction was entirely with Government and that his application for permit was an offer to purchase cement. I am afraid I cannot accept this contention. It is a fact that the plaintiff had certain dealings with Government in so far as the plaintiff had to apply for and take out a permit for cement. But the actual sale transaction was between the plaintiff and the defendant No. 2. Some of the details if the sale transaction were indeed controlled by the Government but that was by reason of the specific provisions of theCement Control Act, Thus, Government indicated the source from where the plaintiff was to receive the stock of cement. Government also indicated the price and the time limit for taking delivery of the goods. But these are only mechanical details by which Government sought to impose its control over the distribution of cement. In all this, Government was trying to control the transaction of sale between the plaintiff and the defendant No. 2. This control was foisted from outside and it cannot be said that by virtue of this control the actual transaction became a transaction between the plaintiff and Government.

29. I shall now examine the second argument of Dr. Das that the defendant No. 2 became an agent of defendant No. 1 merely by reason of the fact thatdefendant No. 1 had directed the plaintiff to deposit the purchase price with the defendant No. 2. There are two aspects of this contention, Firstly, it may be contended that Government by directing the plaintiff to make payment to defendant No. 2 actually held out the defendant No. 2 as an agent and is now estopped from denying the agency of defendant No. 2. But since the plaintiff has not made out any such a case of estoppel in the plaint, this line of attack is not open to the plaintiff. Secondly, the plaintiff may contend that the fact that the Government directed the handing over of the purchase price to the seller would by itself make Government the principal. I do not find any merit or substance in this contention either. Obviously, Government was controlling the distribution (which includes the operation of sale) of cement. Sale of cement could take place only on the strength of a permit To impose such control It was not enough to introduce the provision for a permit, Government had also to lay down the details of the procedure by which the consumer and the supplier were to carry on their dealings. It is in the very nature of things that control and restriction can only be imposed and enforced by the issue of detailed procedural instructions, mat is why, while issuing the permit the Government told the buyer that the price would have to be deposited with the seller, i.e., the stockist in this case. This can hardly be construed as an act creating the relations of agency between one of the parties to the sale transaction and Government. Besides, Mr. Basak has drawn my attention to the case of Hari Charan Das v. Taraprasanna Sen : AIR1925Cal541 where it was held that A directs B to make payment to C, C does not, by virtue of that direction, automatically become an agent of A. In this connection it is important to remember that the Memo. Ext. B, and the delivery order, Ex. C., make it abundantly clear that those documents were issued by the defendant No. 2 on its own behalf and not on behalf of the Government of West Bengal.

30. As regards the third contention of Dr. Das, I do not see what documents could be disclosed by a Government regarding the relationship between the Government and the defendant No. 2. In fact, Government does not say that there is any relationship between the Government and the defendant No. 2, except that defendant No. 2 is subject to such control and supervision of Government as is envisaged by the Cement Control Act. I have already indicated how the functions discharged by Government under the Cement Control Act do not by themselves constitute a relationship of agency as between the defendant No, 2 and the defendant No. 1.

31. With regard to the fourth argument of Dr. Das I am afraid that there is nothing to show that theBharatiya Byapar Mondal was an agent of the Government even qua stockist or dealer. Had there been such evidence there might have been some force in the contention that as such stockist or dealer any receipt of price by the stockist or dealer would amount to receipt of the money qua an agent of the Government. The first premises that Bharatiya Byapar Mondal was an agent of Government qua stockist or dealer having failed in my opinion, this argument of Dr. Das also fails.

32. I can now straightway deal with the Issues.

Issue No. l(a) -- Yes.

(b) -- Yes. The fact that the amount had been deposited with the defendant No. 2 cannot be doubted and was not seriously questioned by Government.

Issue No. 2 -- Yes.

Issue No. 3 -- No.

Issue No. 4 -- No.

Issue No. 5 -- Yes. [ must state, however that a faint suggestion was made by Mr. Basak at the time et the hearing of the suit that the notice had not been properly served. It will appear from the letter dated 7th of August 1950, which is a common document and an admitted document, that the letter contains an endorsement that a copy was sent to the Secretary, Civil Supplies. Department, Writers Buildings. Some evidence has been given in this case by Harendra Nath Das, an employee of the plaintiff's solicitor, that the notice had been sent under certificate of posting. Though I am not inclined to believe all that was said by Harendra Nath Das, I have no doubt in my mind that a copy of the letter had been sent to the Secretary, Civil Supplies Department. The letter itself, which is an admitted document and. which has certainly been received by the Director of Consumer Goods, bears the endorsement 'Secretary, Civil Supplies Department, Writers Buildings.' It cannot be suggested that this endorsement was a subsequent interpolation. In view of this fact, even the slight evidence that has been adduced to show the posting of a copy of the letter to the Secretary, would, in my mind, be sufficient to indicate that a copy of the letter had in fact been sent to the Secretary, Civil Supplies Department. The fact that the original letter had been addressed to the Director of Consumer Goods does not, in my opinion, take away the legal effect of the letter. It is now well known that all that is required is substantial compliance with the provisions of section 80 of the Code of Civil Procedure.

33. Issue No. 6 -- In view of the fact that the plaintiff is not interested in any decree against the defendant No. 2 and does not want any decree against the defendant No. 2, and in view of my findings regarding the preceding issues, the answer to this issue must be that the plaintiff is not entitled to any relief as against defendant No. 1.

34. In the circumstances the suit is dismissed but I make no order as to costs.

35. Before parting with this case, however, I must place on record that the facts of this case leave a bitter taste in one's mouth. There can be no question that the plaintiff has been defrauded by defendant 2. There can also be no question that the plaintiff was robbed of this money because of following a procedure that was laid down by the defendant No. 1. Had it been a suit framed in tort, I am not sure that the result of this suit would not have been otherwise. In any event, 1 am convinced from the various letters proved in this case that the officers of the defendant Government of West Bengal did not do their best to bring the defendant No. 2 to justice. Thedefendant No. 2 apparently ran away with the money. Itis well known that the Government of West Bengal has anEnforcement Branch. Nothing appears from the evidenceto show that the officers of the Government of WestBengal made any attempt at ail to employ that machineryor in fact any other machinery to recover the money fromthe defendant No. 2 or to trace the defendant No. 2.Apart from writing two or three formal letters to thedefendant No. 2 directing the defendant No. 2 to pay upthe dues of the plaintiff, the officers of the defendantNo. 1 did nothing else. Their last letter dated the 2ndAugust, 1950 asking the plaintiff to 'seek redress in acompetent court of law' reads like a cruel joke. It iscertainly desirable that if Government direct consumersto go and deposit money in advance with stockists approved by them, they should provide for a machinery whichwill ensure that the consumers will receive the suppliesor at least will recover their money in the event of failureof supply.


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