Amitabha Dutta, J. - (1.) The petitioner M/s. S. Paul & Co., a registered firm was appointed sole agent for sale of Tripura State Lottery Tickets by a concluded contract of agency in the form of written agreement dt. 23rd Oct. 1982, in modification of an earlier agreement dt. 12th Nov. 1981 and the sole agency continued till the 166th draw of the lottery which was scheduled to be held on Oct. 4, 1983, after which it stood terminated by mutual agreement.
(2.) Clauses 8, 9 and 16 of the said agreement dt. 23rd Oct. 1982 (Annexure 'A' to the writ petition) were as follows : -- "8. That in consideration of the grant of the sole agency the sole agent shall pay to the Government a sum equivalent to 60% of the value of the tickets, balance 40% being retained by the sole agent as commission including expenses on publication of result, publicity for the lottery, checking of tickets and other organisational and administrative expenses of the sole agency. That it shall be obligatory for the sole agent always to pay in advance and/or execute bank guarantee equivalent to net values payable to the Government in terms of the foregoing paragraphs in lieu of lots of tickets earmarked for each draw, to the Government. It is agreed that the accounts in connection with a draw shall be completed squared up and/or settled by the sole agent within fifteen days from the date of each draw. 9. In order to popularise and to give an impetus to the purchasers of the tickets, the sole agent shall stand authorised to make direct payment in respect of claims from the individuals/agent/sub-agents/ sellers in prescribed form and to prize winners up to Rs. 1,000/- (Rupees One Thousand) for prize money/share of agents/ sellers com mission/incentive, etc., on prizes on surrendering of the prize winning tickets counterfoils invoices and the amount so paid would be reimbursed/ adjusted by the Government. Amount paid by the sole agent towards the prize winning tickets/commission/incentives should be submitted by the sole agent so as to reach the Government within the, period prescribed in the rules. 16. That copies of invoices issued by the sole agent to the agents against sale of tickets by sole agent will be forwarded to the Government on demand for records and verification."
(3.) During the material period lottery tickets worth Rs. 27,00,000/- used to be earmarked for each dsaw and 60% of that value is Rs. 16.20 lacs. The petitioner furnished two bank guarantees for Rs. 16.20 lacs each to secure payment of the contractual money to the Government of Tripura, one of which being dt. 21-10-1982 from United Industrial Bank, Ultadanga Branch expired on October 21, 1983. The other bank guarantee was executed by the Branch Manager of the Vysya Bank, Chittaranjan Avenue, Branch, Calcutta for Rs. 16.20 lacs favouring Government of Tripura being Bank Guarantee No. 13/83 dt. 4th July 1983 for one year which has been renewed for another year during the pendency of this case. A copy of the said bank guarantee No. 13/83 is annexure 'C' to the affidavit-in-reply sworn on the 2nd July 1984. Under it the bank guarantees payment of the sale money of the lottery tickets sold by the petitioner firm and "agrees to reimburse the amount of loss, if any, subject to the maximum limit of Rs. 16,20,000/- only.";