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Himachal Fruit Growers Co-operative Marketing and Processing Society Ltd., Simla Vs. Upper India Food Preservers and Processors (P.) Ltd., Parwanu and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Suit No. 53 of 1980
Judge
Reported inAIR1984HP18
ActsContract Act, 1980 - Sections 51 and 73; ;Code of Civil Procedure (CPC) , 1908 - Order 8, Rule 6-A; ;Himachal Pradesh Co-operative Societies Act, 1969 - Section 76
AppellantHimachal Fruit Growers Co-operative Marketing and Processing Society Ltd., Simla
RespondentUpper India Food Preservers and Processors (P.) Ltd., Parwanu and anr.
Appellant Advocate O.P. Thakur, Adv.
Respondent Advocate Chhabil Dass, Adv.
Cases Referred(Secy. of State v. Kundan Singh
Excerpt:
- v.p. gupta, j.1. the plaintiff has filed this suit for recovery of rs. 51.550 on the allegations that the plaintiff is a roistered society, having its head office at simla. in august/september. 1979, defendant no. 2 approached the plaintiff and represented that defendant no. 1 carries on the business of a cold storage in the name and style 'him cold storage' at parwanu and wanted to enter into business dealings with the plaintiff. certain terms and conditions were orally settled between the plaintiff and defendant no. 2. these terms were confirmed in exhibits p-2 and p-3. the plaintiff-society assigned consignments of apple to defendant no. 2 for storage. defendant no. 2 was to submit monthly bills and the stock position of these goods. subsequently, defendant no. 1 claiming to be an.....
Judgment:

V.P. Gupta, J.

1. The plaintiff has filed this suit for recovery of Rs. 51.550 on the allegations that the plaintiff is a roistered Society, having its Head Office at Simla. In August/September. 1979, defendant No. 2 approached the plaintiff and represented that defendant No. 1 carries on the business of a cold storage in the name and style 'Him Cold Storage' at Parwanu and wanted to enter into business dealings with the plaintiff. Certain terms and conditions were orally settled between the plaintiff and defendant No. 2. These terms were confirmed in Exhibits P-2 and P-3. The plaintiff-Society assigned consignments of apple to defendant No. 2 for storage. Defendant No. 2 was to submit monthly bills and the stock position of these goods. Subsequently, defendant No. 1 claiming to be an owner/agent of defendant No. 2, started operating the business with the plaintiff. The plaintiff also accepted defendant No. 1 as owner/ agent of defendant No. 2. The plaintiff paid Rs. 52.585 to defendant No. 2 and Rs. 1,35,920 to defendant No. 1 by way of running payments but the accounts were not settled finally in spite of the repeated demands of the plaintiff. In July, 1980. 4509 apple-boxes of the plaintiff were lying in the cold storage with defendant No. 2. On demand, defendant No. 2 did not deliver these boxes to the plaintiff and thus committed a breach of the terms of the contract. The plaintiff suffered losses on account of these acts of the defendants. The value of the fruit boxes withheld by the defendants was Rs. 1.05.961-50 (according to the market value prevailing at the relevant time) and after adjusting the amount of Rs. 58,240 being storage charges, till the middle of July, 1980, a loss of Rupees 47,721-50 was caused to the plaintiff. The plaintiff also claimed interest/damages on this amount to the tune of Rs. 3.579-10. at the rate of 18% per annum and after adding a further claim of Rs. 249-40 for notice charges, etc., the plaintiff's total claim is Rs. 51,550/-. The cause of action is alleged to have arisen in July, 1980. and the present suit was filed on 23rd Dec. 1980.

2. The defendants filed a written statement and claimed that the plaint does not disclose a cause of action. On merits, the defendants admitted the terms and conditions of the contract as are contained in Exhibits P.2 and P.3, but alleged that after 15th July, 1980, the plaintiff stopped removing the goods because of financial difficulties. The plaintiff could only remove the stocks of apple after payment of the storage charges but it was unable to pay the same. The defendants have alleged that till 31st March. 1980, an amount of Rs. 1.82,635 was received and a further amount of Rs. 19,582.50 was received till 31st May. 1980, The defendants also alleged that till the month of June. 1980, an amount of Rs. 44.433-18 was due as rent from the plaintiff and the plaintiff failed to pay this amount to the defendants in spite of various demands and requests. The plaintiff issued a post dated cheque of Rs. 10,000 but this cheque was dishonoured by plaintiff's bankers for want of funds. The defendants kept the apple-boxes till 1st March. 1981, but were compelled to auction the same. The auction price was adjusted towards the hire charges. It is denied that the price of the a pole was Rupees 1.23.000.

3. Defendants also filed a counterclaim for recovery of Rs. 78.007-98, with the allegations that the apple boxes were to be stored by the defendants under a temperature between 30 to 320. They had been scoring the apple boxes from 4th Sept.. 1979 to 15th July. 1980, by which time 4509 apple boxes were left with the defendants for storage. The plaintiff did not take delivery of these apple boxes after 15th July. 1980 and also did not pay any hire charges. The defendants had to issue notice to the plaintiff calling upon the plaintiff to lift the stocks. The defendants were repeatedly demanding their payment for storage of apple-boxes, therefore the plaintiff issued a post dated cheque for Rs. 10,000 on 15th July, 1980, as part payment of rental charges. The plaintiff refused to lift the apple boxes and pay the storage charges, As a last resort, the defendants had to auction the apple boxes for which they gave advertisements in different newspapers and also by circulation of handbills. The auction was held on 1st March. 1981, and the apples were sold for Rs. 22.545. The defendants suffered losses and the total claim of the defendants on account of rental charges after adjusting the amountreceived by them in auction is Rupees78,007-98.

4. The plaintiff filed replication and denied all the objections of the defendants and re-asserted the allegations of the Plaint.

5. To the counter-claim, the plaintiff replied that the counter-claim of the defendants is not maintainable for want of a proper and legal notice and for want of non-production of books of accounts, etc. It is also alleged that the allegations in the counter-claim are wrong and the defendants are not entitled to any decree on the basis of the counter-claim. Regarding the cheque of Rs. 10.000, it is alleged that the same was given by way of running payments subject to furnishing of proper accounts, etc. but as the defendants failed to render proper accounts, etc. therefore, the plaintiff advised their bankers not to make payment of the cheque.

6. On the pleadings of the parties the following issues were framed on 26th May. 1981:

'1. What were the terms and the conditions of the contract entered into between the parties? O. P. Parties.

2. Are defendants liable for broach of contract or for wrongful acts thereby causing business/financial loss to the plaintiff? If so to what extent? O.P.P.

3. If issue No. 2 is proved, are defendants liable for further damages/interest to the plaintiff? If so, to what extent?

O.P.P.

4. Whether defendants' claim in thecounter-claim is not maintainable forwant of legal notice to the plaintiff andnon-production of books of accounts, etc.as alleged in the preliminary objectionby the plaintiff? O.P.P.

5. Whether the defendants are entitledto claim any amount from the plaintiffin the counter-claim made by them? Ifso to what extent? .O.P.D.

6. Relief.

7. The parties led evidence on these issues and arguments were heard. Issue No. 1.

8. The learned counsel for the parties have no dispute about the terms and conditions of the contract entered into between the parties and both the counsel admit that the terms and conditions incorporated in the letter dt. 3-9-1979 (Ex. P-21 and in Ex. P-3 are correct. Thus the terms and conditions settled between the parties are in Exs. P-2 andP-3. According to these terms and conditions the plaintiff was to store the apple boxes with the defendants, that is. Him Cold Storage, and was to take delivery of these apple boxes, after paying the rental charges in accordance with the terms and conditions. This issue is decided accordingly.Issues Nos. 2 and 3.

9. According to the terms and conditions the plaintiff was to store the apple boxes with the defendants and take delivery of the same after paying rental charges.

10. The plaintiff's counsel contended that the plaintiff was always ready and willing to pay the rental charges but the defendants did not allow the plaintiff to remove the apple boxes. It was contended that proper bills were not sent to the plaintiff and the defendants were receiving running payments from the plaintiff. The defendants failed to issue proper receipt for the amounts received by them and due to the negligence of the defendants the plaintiff's goods perished. The plaintiff was therefore, entitled to the amount claimed.

11. The learned counsel for the defendants contended that the plaintiff was not ready and willing to pay the rental charges of the apple boxes stored with the defendants. It was contended that in fact the plaintiff committed a breach of the terms of the contract and therefore, was liable to compensate the defendants for their losses.

12. In Para 7 of the plaint it is alleged that by the middle of July. 1980. 4509 apple boxes of the plaintiff were lying in the cold storage with defendant No. 2 and the defendants refused to deliver these goods to the plaintiff, thus causing financial/business' loss to the plaintiff.

13. In para 6 of the written statement the defendants have alleged that they received Rs. 1.82.635 as rental charges from the plaintiff till 31-3-80 and another amount of Rs. 19.582-50 till 31-5-80. It is also alleged that till the month of June. 1980, a sum of Rupees 44.433-18 was due as rent from the plaintiff. The plaintiff issued a cheque for Rs. 10,000 in the month of July, but this cheque was dishonoured. In para 7 of the written statement, it is alleged that the apple boxes were retained by defendants till 1-3-1981 but thereafter the defendants disposed of the same in exercise of their lien and adjusted the amount received by them towards thebalance amount of hire charges and interest, etc.

14. In replication it is stated that an amount of Rs. 2,02.217-50 was paid to the defendants on account of rental charges as running payments subject to settlement of accounts. It is also alleged that the payment of the cheque of Rupees 10,000 was stopped and that the defendants were guilty of wrongfully withholding the plaintiff's goods.

15. Now in the plaint or the replication, the plaintiff has not stated that the plaintiff was always ready and willing to perform its part of the contract or was ready and willing to pay all rental charges to the defendants on account of storage of the apple boxes.

16. According to the agreement, dt. 3-9-1979 (Ex. P-2) the hire charges for the storage of apple boxes were to be paid at the rate of one rupee per box per month. An amount of fifteen paise for loading and unloading charges was also to be paid besides this amount. 50 per cent of the hire charges were to be paid by the 7th of every month and the remaining 50 per cent were to be paid at the time of clearance. The defendants were to keep the goods in the cold storage by maintaining a temperature between 30 to 32 degrees F. H. to ensure that the goods were not deteriorated. According to condition No. 12 of Ex. P-3. if the owner of goods desired to lift the goods in part, then the owner was entitled to do so upon making payment of the dues in that proportion. Similarly, according to condition No. 6 the delivery of the goods could be taken on payment of full expenses, etc. otherwise the goods were liable to be auctioned. Under condition No. 9, if it was considered that for sufficient reasons the goods could not be stored then in that case the owner was to remove the goods within a period of 7 days from the receipt of the notice to receive the goods. Under condition No, 10, the company, that is defendants, were liable to pay the proportionate costs of the goods and make good the deficiency, if there was any deficiency in stocks.

17. It is admitted that the goods were kept in the cold storage by maintaining the temperature, which is a term of the contract. The dispute between the parties is that according to the plaintiff, the defendants did not allow the plaintiff to lift the goods while according to the defendants the plaintiff was not allowed to remove the apple boxes due to nonpayment of charges. This dispute arose in July 1980, and prior to that, there was no dispute.

18. In Ex. P-22 (letter dt. 29-1-1980) the plaintiff requested defendant No. 2 to release the goods against payment towards storage charges, to Shri B, B. Raina of M/s. Jivaji Fruit Merchants, Kashmir. Ex. P-23 (letter dt. 17-7-1980/ 18-7-1980) was issued by the plaintiff to defendant No. 1 stating that the defendant was not allowing the plaintiff to lift the apple boxes stored in the cold storage without payment of full cold storage charges. It is also stated that the plaintiff was short of funds and was expecting funds from the Government. A request was made that the plaintiff would make the payment of cold storage charges as soon as the plaintiff cleared all the stocks lying with the defendants and that in case the defendant did not allow the plaintiff to remove the goods, then the defendant would be responsible for all losses etc. Ex. P-4 is a reply to this letter from defendant No. 1 to the plaintiff, in which it was stated that the rental charges were to be paid at the time of the removal of the goods, but the plaintiff's agent wanted the delivery of the goods without payment of rental charges on the ground that money for payment was not available with the plaintiff. It is also stated that, defendant No. 1 was willing to accommodate the plaintiff and advised the plaintiff to pay in part and remove in part and as a special measure, the plaintiff was requested to remove the material in five parts on proportionate payment of rental charges. Some apple boxes were removed on 17-7-1980 by the plaintiff and the plaintiff issued a post-dated cheque. D/- 27-7-1980 for Rs. 10,000. The plaintiff was further requested to remove the entire material and clear the accounts. In Ex. p-25 (letter dt. 14-8-1980 from the plaintiff to defendant No. 1) it -is stated that the plaintiff was under financial crisis and the plaintiff never refused to pay the dues of the defendants. It is also stated that the defendants had not released the apple boxes to the plaintiff and that the plaintiff had retrenched all its workers. It was not now possible for the plaintiff to crush the apple and dispose them in the market. The plaintiff also made a claim of Rs. 1.60,000 on account of damages, etc. In Ex. P-26 (letter from defendant No. 1 in reply to Ex. P-25) defendant No. 1 has stated that the plaintiff was at liberty to remove the apple boxes even in instalments, as already decided. Defendant No. 1 also claimed damages from the plaintiff. In Ex. P-27 (letter dt. 18-9-1980 from the plaintiff to defendant No. 11 the plaintiff reasserted its claim and claimed damages. The essence of this letter is that the plaintiff was not allowed to remove the stock of apple boxes and was not supplied the accounts as well as the stock position lying with the defendants. The payment of Rs. 10,000 on the basis of cheque was stopped, because the plaintiff entertained doubts regarding the bona fides of the defendants. In Ex. P-28 (telegram dated 3-10-1980) from the defendants to the plaintiff, the defendants requested the plaintiff to remove the apple boxes. In Ex. P-33 (notice) the plaintiff claimed damages etc. from the defendants. Ex. P-34 is a reply to this notice from the defendants to the plaintiff. Exs. D-l to D-149 are the receipts to prove that the apple boxes were stored by the plaintiff with defendant No. 2. Exs. P-42 to P-83-A are the receipts regarding the payment of hire charges. Exs. P-84 to P-90 are the bank certificates. From these certificates it is proved that in July, 1980 (when the post-dated cheque was issued) the plaintiff had sufficient money in the banks. Exs. P-29 and P-30 are the copies from ledger with respect to the accounts of the defendants.

19. Thus from the aforesaid evidenceit is proved that on and from 17-7-1980 the plaintiff was not able to pay rental charges for lifting the apple boxes and as a consequence the defendants refused the lifting of apple boxes, The plaintiff lifted some apple boxes on 17-7-1980 without making cash payment of rental charges, and gave a post dated cheque (dt. 27-7-1980) for Rs. 10,000/-. (Ex. DA) which was dishonoured. The plaintiff had insufficient funds and the work of the plaintiff had come to a stand still. The defendants gave the plaintiff chances to remove the material on payment of charges but the plaintiff instead of removing the material claimed damages etc. from the defendant. All these facts clearly suggest that the plaintiff was not willing to pay the rental charges before lifting the apple stocks. Under the terms and conditions, It was a prerequisite condition that the stocks could be lifted only on payment rental charges. As the plaintiff failed to pay the rental charges, therefore, the defendants were justified in not allowing the plaintiff to lift the apple stocks. The plaintiff has alleged that running payments were made to the defendants but it is not proved that payments regarding rental charges were in excess, and for that reason the plaintiff was entitled to remove the apple stocks. In the plaint it is not stated that the plaintiff was ready and willing to perform its part of the contract or that the rental charges had been paid to the defendants and the defendants refused to allow the plaintiff to remove the apple boxes in spite of the fact that the rental charges had been maid.

20. Shri G. R. Chauhan (p. W. 1)Managing Director of the Plaintiff has stated that payments were being made to the defendants before lifting of apple boxes but the defendants did not allow the plaintiff to lift 4509 apple boxes in July, 1980. The plaintiff wanted to lift the apple boxes in lots but the defendants wanted that all the apple boxes should be lifted at one time. The plaintiff, however, was not willing to lift all the apple boxes at one time because the crushing capacity of the plaintiff's unit was not UP to that standard. It is also admitted that prior to issuance of notice (Exhibit D. 153) the plaintiff had filed the present suit. He has also stated that there was no letter from the plaintiff offering full payment to the defendants against the receipt of fruit.

21. Ashok Kumar (P.W 2) has staged that the payments made by the plaintiff were shown as running payments in the books. He approached defendant No. 2 for lifting apple boxes in lots but defendant No. 2 did not allow him to lift the boxes and asked him that either the boxes be lifted in one lot against payment or in the alternative payment of Rs. 1,50,000/- be made and thereafter apple boxes be removed at plaintiffs convenience. He further stated that full payment could not be made to the defendants and therefore, the apple boxes could not be lifted. He admits that no notice about this talk was given to the defendants.

22. Paras Ram (P.W. 4) is an Accountant, of the plaintiff and he states that the plaintiff-Society never earned any profit.

23. Narain Dass Puri (D.W.1) has stated about the auction of the apple boxes. He admits that final settlement of accounts was not done with the plaintiffand that defendant No. 1 has to pay some loan to Himachal Pradesh Financial Corporation.

24. The oral evidence is not of much value. It is, however, proved that the only dispute between the parties was regarding the payment of the rental charges. As the plaintiff was unable to make the payment, therefore, the defendants were justified in refusing the delivery of the apple boxes. Thus, I hold that the breach of contract is on the part of the plaintiff and not on the part of the defendants. In these circumstances issue No. 2 is decided against the plaintiff and it is further held that the plaintiff is not entitled to any damages or interest, as claimed.

25. The defendants' witnesses have stated that the apple boxes were auctioned after giving due notice to the plaintiff. When the plaintiff did not lift, the apple boxes then the defendant issued handbills and public notices in the newspapers for the auction of the apple boxes stored with them. The intimation regarding the auction was also sent to the plaintiff. As the plaintiff had committed a breach of the contract, therefore, the defendants were entitled to auction the apple boxes in accordance with the settled terms and conditions mentioned in 'Ex. P-3. Thus I hold that no financial loss was caused to the plaintiff due to the wrongful acts of the defendants or breach of any terms of the contract by the defendants.

26. As a result of the above discussion both these issues are decided against the plaintiff. Issue No. 4.

27. The learned counsel for the plaintiff contended that the counter-claim was not maintainable because the counter-claim was in the nature of a cross-suit and no suit could: be filed against a Society without a notice under Section 76 of the Himachal Pradesh, Co-operative Societies Act of 1.969 (shortly the Act). The counsel for the defendants, on the other hand, contended that the counterclaim was not a separate suit and only the procedure of a suit was to be followed for the decision of a counterclaim.

28. A counter-claim by a defendant can be filed under Order VIII, Rule 6A of the C.P.C. (shortly the Code) which reads as follows:--

'6A. Counter-claim by defendant-

(I) A defendant in a suit may, in additionto his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit hut before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether so counterclaim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.'

29. A counter-claim can be filed before the filing of a written statement or before the time limited for filing a written statement has expired e.g.. if the time allowed for filing a written statement is one month then the counter claim has to be filed within a period off one month.

30. A counter-claim has the effect of a cross-suit but only one final judgment is to be pronounced in the suit on the original claim of the plaintiff and the counter-claim of the defendant. The plaintiff can also file a written statement in answer to the counter-claim of the defendant and for this purpose a counter-claim is to be treated as a plaint and is governed by the rules applicable to the plaints.

31. Under Section 76 of the Act, no suitcan be instituted against a society or any of its officers with respect to any act touching constitution, management or the business of the society until the expiration of two months after notice in writing is delivered to the Registrar or left at his office stating the cause of action, the name, description and place, of residence of the plaintiff and the relief which he claims and the plaint shall, contain a statement that such notice has been so delivered or left.

32. The question to be determined is as to whether a counter-claim is to be considered as a suit for the purposes of Section 76 of the Act.

33. The provision of two months' notice is a mandatory provision and this period of two months cannot, be curtailed.

34. It is nowhere provided under Order VIII, Rule 6A of the Code that the counter-claim is a separate suit, although it has the effect of a cross-suit. A counter-claim is to be decided in the suit in which it is filed. Only one final judgment is to be pronounced meaning thereby that the suit remains one, The filing of a counter-claim does not convert the original suit into two suits and two judgments and two decrees are not to be delivered. Order VIII, Rule 6A (4) of the Code further states that the counter-claim is to be treated as a plaint and governed by the rules applicable to plaints. It clearly suggests that a counter-claim by itself is not a Plaint but is to be treated as a plaint and governed by the rules applicable to plaints. The words 'plaint' and 'suit' are not defined in the Code of Civil Procedure. 'Suit' ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint, as has been held in AIR 1933 PC 63 (Hansrai Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd.).

35. In AIR 1932 Lah 374 (Secy. of State v. Kundan Singh) an application under para 17. Sch. 2 Of the Code was filed. Such application is numbered and registered as a suit under sub-para (2) of para 17 of the Code. It has been held that such an application is not a suit within the meaning of Section 80 of the Code.

36. Thus a counter-claim filed by a defendant is to be treated as a plaint or a cross-suit, still it will not become a separate suit for the purposes of the Code because no separate judgment and decree is to be passed on this counterclaim and it has only to be decided in the judgment of the original suit filed by the plaintiff. It is a different matter that the plaintiff may Ret his suit dismissed or withdrawn but still the counter-claim is to be heard and decided. In any case a counterclaim does not become a separate suit and can only be treated as a limb of the original civil suit. Similarly if the proceedings in the original suit are stayed under Section 10 of the Code then in that case the proceedings in the counter-claim have also to be staved. Further, the defendant for filing a counter-claim cannot sleep over the matter, and has to file the counter-claim before filing the written statement or within the time allowed for filing the written statement. The purpose of notice under Section 76 of the Act is that the party concerned has full knowledge about the cause and the disputes between the parties. The giving of a notice in a case where a suit is filed against the defendant, loses its significance because disputes between the parties are already known to the plaintiff. The defendant has also no right to compel the court to wait for a period of two months to enable him/her to file a counter-claim. If the contention of the plaintiff's counsel is accepted then the defendant having a right to file a counter-claim can compel the court to wait for a period of two months so that the defendant may be able to serve a notice under Section 76 of the Act and thereafter file his counter-claim. This position is likely to create many complications. If the defendant can be precluded from filing the counter-claim simply for the reason that a notice as required under Section 76 of the Act has not been issued then in that case the defendants' claim can very easily be defeated and the defendant can be debarred from filing a counter-claim in an indirect manner that is by giving him a time lesser than two months for filing his written statement. This is not the intention of the Act or the procedure.

37. Thus the counter-claim of the defendant is not a separate suit although it has to be treated as a cross-suit and a plaint for the purposes of procedure only.

38. In view of what has been stated above no notice under Section 76 of the H. P.Co-operative Societies Act is required to be served in the present case. The non-production of the books of accounts is also not material as it is a matter of evidence only. In case the documents are produced at a later stage, then the court has powers to reject these documents or to allow their production for sufficient cause on terms. Issue No. 4 is decided against the plaintiff. Issue No. 5.

39. The defendants sold the apple boxes after due publication and notices. The apple boxes were sold for Rs. 22.545 as stated by D.W. 1. The amount whichthe defendants claim as hire charges along with interest after adjusting the amount of Rs. 22,545 is Rs. 78,097-98. The defendants have led evidence of Krishan Chand (D.W. 2) that the apple boxes were kept at a temperature which ranged from 30 to 32 degrees F. H. The defendants have also produced their accounts. There is no evidence in rebuttal by the plaintiff. According to Ex. DW 4/1 an amount of Rs. 1,82,635 was received as hire charges for the period 1-4-1979 to 31-3-1980. Another amount of RS. 19,582-50 was received as hire charges for the period 1-4-1980 to 28-11-1980 as is evident from Ex. DW 4/2. In this manner a total amount of Rupees 2,02,217-50 was received by the defendants from the plaintiff.

40. The plaintiff (defendants?) was entitled to Rs. 2,14.413-68 as hire charges for the period 1-4-1979 to 31-3-1980 (vide Ex. DW 4/1) and Rs. 55.790-25 for the period from 1-4-1980 to 28-11-1980. Thus the total amount payable to defendants was Rs. 2.70.203-93, In this manner an amount of Rs. 67.986-43 was due from the plaintiff to the defendants on account of hire charges till 28-11-1980. 4509 apple boxes of the plaintiff were still lying with the defendants and the plaintiff left these apple boxes in the cold storage till 28-2-1980. These were auctioned on 1-3-1981 for Rs. 22.545.00. The defendants claimed Rs. 18.036 as hire charges for storage of these apple boxes and according to the terms and conditions of the contract, the defendants are entitled to receive such hire charges. Thus the amount payable to the defendants on account of hire charges comes to Rs. 67.986-43 + 18.036-00 = 86,022-43. The apple boxes were auctioned for Rupees 22545-00. From the evidence produced by the defendants it is proved that the auction proceedings were conducted in a legal manner after giving due notice to the plaintiff as also to the public. The defendants have' further claimed interest from 28-2-1981 at 18 per cent per annum on the amount which was recoverable from the plaintiff. As previously, no interest was charged, therefore, this claim of the defendants for Rs. 13.302-60 cannot be allowed. The defendants have also claimed Rs. 787-95 as expenses incurred for the auctioning of the apple boxes and an amount of Rs. 440 on account of notices etc. No accounts for these amounts have been furnished but still I feel that the defendants should be allowed the amount ofexpenses incurred for auctioning of the apple boxes which is Rs. 787.95. The claim for the amount on account of notices etc. is disallowed. Thus after calculating the various amounts the claim of the defendants comes to Rs. 64.265-38. The learned counsel for the plaintiff con-tends that the bills Exs. p-4 and P-5 are in duplicate. This contention is correct. But in the accounts the amount had been adjusted only once. Similarly it is contended by the plaintiff's counsel that in the bill Ex. PW 4/82 the period for which the rent is charged is not shown. The defendants' counsel contends that there is no objection of this nature and in fact the non-mentioning of the period is by inadvertence. As there is no objection, therefore, this contention of the plaintiff's counsel cannot be accepted. The plaintiff's counsel also raised objections that some bills are in duplicate and the duplicates are signed by different persons. These bills have been accounted only once and the fact that the duplicates are signed by different persons is not very material. In these circumstances, I hold that the plaintiff is liable to pay Rs. 64.265-38 to the defendants, and the defendants are entitled to claim this amount from the plaintiff, by way of counter-claim. This issue is decided accordingly in defendants' favour. Issue No. 6.

41. As a result of my findings on various issues, the plaintiff's suit is dismissed and the counter-claim of the defendants for recovery of Rs. 64.265-38 is decreed against the plaintiff. Taking into consideration the various circumstances of the case. I leave the parties to bear their own costs.


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