ASHA ARORA, J. - (1.) This First Appeal at the instance of the plaintiff/appellant arises out of the judgement and decree dated 19th November, 2012 passed by the learned Judge, VIIth Bench, City Civil Court Calcutta in Title Suit No. 315 of 1998.
(2.) The parties are referred to herein as they are arrayed in the suit.
(3.) The plaint case, sans unnecessary details is as follows: The plaintiff is a dealer and trader in various types of scrap items including scrap rubberized fabric (nylon) and red poly. By an auction notice No. 1/BT/97-98 dated 31st March, 1997 the defendant No. 1 M/s Birla Tyres, through its auctioneer the defendant no. 2 M/S Tirupati and Company notified sale of various scrap items including material described as "Scrap Rubberized Fabric (nylon) (including Red Poly)" weighing approximately 185 tons by public auction to be held on 17th April, 1997 at Kalamandir, Calcutta. Plaintiff participated in the aforesaid auction by offering a price of Rs. 17,800/- per metric ton which being the highest bid, was accepted by the defendants. As per terms and conditions of the auction sale plaintiff deposited Rs. 3,69,300/- as security deposit which was accepted by the defendant no. 1. Plaintiff lifted approximately 50 M.T. and 610 kgs of scrap rubberized fabric (nylon) including red poly and paid the price thereof including sales tax and excise duty amounting to Rs. 11,05,533/- to the defendant no. 1 who supplied about 12 tons of red poly along with the scrap material. In the bills and invoice raised by the defendant no. 1 the material was described as "scrap rubberized fabric (nylon)" and red poly was deliberately omitted therein. The defendant no. 1 illegally charged excise duty @ 18% on the red poly. Plaintiff made representation and protested against the matter but in vain. In spite of repeated requests and reminders the defendant no. 1 failed to refund an amount of Rs. 38,448/- paid by the plaintiff as excess excise duty. Plaintiff was unable to sell red poly which became an unaccountable item since it was not mentioned in the invoice. Due to breach of contract by the defendant no. 1 who failed to rectify the invoice, plaintiff was unable to lift the entire quantity of 185 tons of material purchased by him for valuable consideration thereby causing loss to his business. By a letter dated 17th September, 1997 the defendant no. 1 illegally forfeited the security deposit. By a notification no. 2/BT/97-98 dated 12th September, 1997 the defendant no. 1 through the defendant no. 2 notified the sale of the remaining quantity of the material which was purchased by the plaintiff. In the said second auction notice the item was described as scrap rubberized fabric (nylon) but red poly was not mentioned. With these assertions plaintiff claimed refund of the security deposit of Rs. 3,69,300/- and the excess amount of excise duty of Rs. 38,448/- with interest @ 18 per cent per annum on the said amount from 1st July, 1997 to 31st January, 1998. Plaintiff sought for a declaration that the forfeiture of security deposit by the letter dated 17th September, 1997 is illegal, arbitrary, void and not binding upon him. A decree for recovery of Rs. 4,50,561/- against the defendant no. 1 has also been claimed.;