N.N. Bhattacharjee, J. -
(1.)This is a suit for a decree for Rs. 2,19,606.00p. on (sic) of price of goods sold and delivered but not paid. Plaintiffs Case, in short, is that plaintiff is a Government company engaged in manufacture and Sile of different products including Transistors/Radios under the brand name 'Kalpaka". By an order in writing dated May 14, 1981 placed on and accepted by the plaintiff at 75C Park Street, Calcutta within the jurisdiction of this Court, the defendant no 1 through Directorate of Adult Education. Department of Education agreed to purchase 600 'Kalpaka' two band Transistor sets with leather case at the agreed rates of Rs. 235.00p. per set and Rs. 40/ - per leather case plus 4% Sales -tax aggregating the amount of Rs. 1,71,600/ -. The defendant no. 2 agreed with the plaintiff at 75C Park Street, Calcutta to render services regarding execution of the said contract by and between the plaintiff and defendant no. 1. The job of the defendant no. 2 was that of Liaison services between the plaintiff and the defendant no. 1. The defendant no. 2 had no authority from the plaintiff to receive any payment from the defendant no. 1 in respect of the said contract for or on behalf of the plaintiff. The contract between the plaintiff and the defendant no. 1 as incorporated in the said order expressly stipulates that the payment in respect thereof would be made against delivery and no amount can be paid in advance. Pursuant to the said contract the plaintiff duly delivered to the defendant no. 1 in its Adult Education Department at Patna the said 600 'Kalpaka' Transistors/Radios in good and sound condition in or about July 1981. The goods were duly accepted by or on behalf of the defendant no. 1 without raising any objection as to quantity or quality thereof. The plaintiff did not sell or supply leather cases for the said Transistor set and the supply thereto was not insisted upon by or on behalf of the defendant no. 1. The' contract between the parties thus stood mutually modified to that extents The plaintiff submitted to the defendant no. 1 its Invoice dated September 30, 1981 for a total sum of Rs. 1.46,640/ - computed at the agreed rate of Rs. 235/ - per set together with 4% Sales -tax. The defendant no. 1 duly received and accepted the said Invoice. A copy of the order and a copy of the Invoice have been annexed to the plaint as part of the plaint. Not having received any payment against the said choice the plaintiff by a letter dated December 21. 1982 made a representation in writing - to the Director, Education Department, Govt, of Bihar and authorised its representative to collect payment of the said sum of Rs. 1,46,640/ -. But no such payment was make and instead by a letter dated April 5. 1983 the defendant no. 1 (sic) that all payments due on the supply had been made to the defendant no. 2 by two instalments i.e. Rs. 73,320/ - by a cheque dated May 23. 1981 as advance and Rs. 98,040/ - by a cheque dated September 1, 1981, aggregating Rs. 1,71,360/ -. The plaintiff is unable to appreciate the modus operandi of defendant no. 1 in making payment to the defendant no. 2 without any authorisation from the plaintiff and that too by cheques drawn not in favour of the plaintiff but in favour of the (sic) no.Further, the first instalment was paid in advance which was a clear breach of terms of the contract between the plaintiff and the defendant no. 1. The second payment was also made even before submission of the Invoice. What is intriguing is that against the contractual dues of the plaintiff amounting to Rs, 1,46,640/ -. payments aggregating Rs.1,71.360/ -. were alleged to have been made by defendant no. 1 to the defendant no. 2. The haste with which the payments were made was unprecedented foF a Govt. Department. The said payment cannot constitute payment of the contractual dues of the plaintiff, the defendant no. 1 remaining liable to make the payment of the said legitimate dows of the plaintiff. However, defendant no. 1 being a Government Department the plaintiff persuaded the defendant no. 2 to make the payment and in acknowledgement of its liability, the defendant no. 2 drew - a cheque dated July 21, 1983 in favour of the plaintiff for Rs. 1,46,640/ - and delivered the same to the plaintiff at 75C Park Street, Calcutta. The said cheque drawn upon SBI was however dishonoured on or about August 20, 1983 by the Drawee Bank on the ground of fund being not arranged for and further that the payment had been stopped by the Drawer. Even thereafter the plaintiff tried to persuade the defendant no. 2 to make the said payment which the defendant no. 2 agreed to make by instalments in a meeting held at 75C Park Street, Calcutta. The plaintiff tried to have a commercial solution but failed. The defendant no. 2 did not pay any amount to the plaintiff. It is obvious that the two defendants acting in collusion and conspiracy with each other perpetrated a fraud upon the plaintiff, the plaintiff is entitled to and claims interest at the rate of 18% per annum which is the current - lending rate of Nationalised Banks relating to commercial transactions., In the premises the defendants jointly and severally are liable to pay to the plaintiff a total, sum of Rs. 2.19,606/. which inspite of demands the defendants have failed and neglected to pay. A notice under Sec. 80(1) of the Code, of Civil Procedure was - duly -served upon the defendant no.1 on or about May 30, 1984 without. any material result. In the Circumstances plaintiff prays for - leave under Clause 12 of the Letters Patent and claims a decree for Rs. 2,19,606. Interim interest and interest on the judgment have also been prayed for.
(2.)Both the defendants have filed "written statements. They have raised pleas about jurisdiction and limitation. Whereas defendant no. 1 has asserted that the defendant no. 2 was the duly authorised dealer and/ or agent of the plaintiff and as such payments made to the defendant no. 2 should be considered as payments to the plaintiff, particularly when acceptance of the order for the supply was acknowledged and confirmed by the defendant no. 2 by its letter dated May 21, 1981 addressed to the Deputy Director, Adult Education, Govt, of Bihar, Patna. It has been alleged that the goods under the contract between the parties were delivered by the defendant no. 2 for and on behalf of the plaintiff and the same were accepted by the Department concerned as would appear from a copy of the delivery challan dated 24.8.81 issued by the defendant no. 2 addressed to the Deputy Director, Adult Education, New Secretariat, Patna. A copy of the challan is annexed with the written statement. All other allegations of the plaintiff has been denied by the defendant no. 2 addressed to the Deputy Director, Adult Education, New Secretariat. Patna. -A copy of the challan is annexed with the written statement. All other allegations of the plaintiff has been dented by the defendant no. 1. It has been asserted that the defendant no. 1 duly complied with the terms of the contract between the parties and that - the Department having paid to the defendant no. 2, the authorised dealer of the plaintiff there cannot be any dues remaining which can be claimed by the plaintiff.
(3.)So far as the defendant no. 2 is concerned, although a written statement was filed, laut during the course of hearing the learned Advocate Mr. Dipayan Ghowdhury of the defendant no. 2 prayed for Leave to retire on 27th May 1995, Such Leave was granted and the suit was directed to proceed ex -parte against the defendant no. 2. However after evidence on behalf of the plaintiff and the defendant no. 1 was concluded and the date was fixed for argument, an application was filed by the defendant no. 2 through Mr. K. K. Boral. Advocate, for leave to contest the suit. By an order dated August 28, 1995 the said application was allowed on payment of cost but thereafter inspite of several adjournments being (sic) the defendant no 2 did not appear and/or cross -examine the plaintiff's witness. On January 12, 1996 Mr. k.k Boral. Advocate, prayed for leave to retire for want of instruction. Leave was granted and plaintiffs witness was released. In the written statement the defendant no. 2 stated that in terms of the order, as it required that a specific symbol should be embossed on each Transistor and that equivalent number of leather cases should be supplied, the defendant no. 2 did the embossing and supplied the leather cases. That the defendant no. 2 had no authority from the plaintiff to receive any payment from defendant no. 1 in respect of the said order/contract has been denied; Supplied of 600 Transistor sets to the defendant no. 1 has been denied. It has been stated that plaintiff by its conduct waived its right to receive the payment from the defendant no. 1. ML allegations of the plaintiff has been denied by the defendant no. 1.