Sahidullah Munshi, J. - (1.) Plaintiff has prayed for declaration that non-lifting of 255 bales of indigenous cotton by the defendants is unlawful and contrary to the terms of the contract and consequently to pass a decree for a sum of Rs. 30,15,706.12/-. The plaintiff has also prayed for interest at the rate of 13% per annum from 01.04.2017 until payment.
(2.) According to the plaintiff cause of action for the suit arose on 8th December, 2003 when the plaintiff made the first demand, on 30th November, 2004 when the plaintiff made its revised demand for payment of loss suffered on resale of 255 bales of cotton from the defendants, as well as on 25.08.2005, 06.03.2006 and 12.01.2007 when the defendants acknowledge their liability for payment of plaintiff's claim. According to plaint case on 3rd March, 2000 defendant no.1 entered into a contract with the plaintiff for purchase of 100 bales of cotton. The said agreement has been admitted into evidence and marked as Exhibit 'A'. the defendant no.1 entered into a further contract with the plaintiff for purchase of 205 bales of cotton (Exhibit 'B') and thereafter, on 29.09.1999 plaintiff entered into further agreement extending Godown Storage Facility to the defendant no.1 for storage on bales of cotton to be sold and delivered by the plaintiff to the defendant no.1. The said agreement is Exhibit 'C'. As per the first two contracts the defendant no.1 paid to the plaintiff 10% of the agreed price for sale of 305 bales and those bales were dispatched to the godown of Bhagalpur as nominated.
(3.) On behalf of the plaintiff the sole witnesses Mr. Amarendranath Gupta being the Senior Stenographer attached to the company, the Cotton Corporation of India has deposed that the plaintiff came into contact with the defendant that is Delite Spinning Mills (P) Ltd. in the normal course of business. According to the plaintiff as per clause (1) of the aforesaid first two contracts defendant no.1 paid to the plaintiff 10 % of the agreed price for sale of 305 bales and those bales were dispatched to the godown of Bhagalpur as nominated. As per Clause (3) of the aforesaid agreement buyer has to effect payment and take delivery of bales within 15 days from the date of the contract. In case of failure to take delivery, the contract is liable to be cancelled at the opinion of the seller and the Corporation is entitled to re-sale the entire or balance quantity reserving the right to recover loss sustained on such re-sale. According to the plaintiff as per Clause (4) of the aforesaid agreement, without prejudice to the aforesaid Clauses, the Corporation may carry cotton for a maximum period of 90 days from the date of contract. In the event, payment is not made and delivery is not taken within the extended period, the Corporation may forfeit advance deposit money inclusive of advance payment made towards carrying charges and re-sale the cotton and recover the loss if any, sustained in such a sale inclusive of price differences, carrying charges and interest on the accounts so payable. Plaintiff proved by evidence that defendant no.1 lifted only 50 bales of cotton out of 305 bales of cotton. From the evidence adduced by the plaintiff it is apparent that the plaintiff upon notice and in terms of the contract with the consent of the defendant no.1, re-sold 255 bales of cotton not lifted on 16.07.2003 and thereby, suffered loss for Rs.22,99,412.57p. After adjustment of deposit amount of Rs.2,43,722/-. Net loss suffered by the plaintiff, therefore, is Rs.20,55,690.57/- as on 31.03.2004.;