G.S. SANDHAWALIA - (1.) THE present appeal has been filed by the defendants, who are aggrieved against the concurrent findings of the Courts below whereby, the suit for recovery of Rs. 12,16,285.24 paise has been decreed in favour of the plaintiffs alongwith interest @ 6% per annum from the date of submission of bills. THE plaintiffs, who are numbering 52, filed the suit for recovery of amount of Rs. 18,08,326 i.e. Rs. 12,16,285.24 paise as balance amount of loading charges, transportation charges, charges of putting marka on gunny bags, charges of unloading of wooden crates and unloading of gunny bales and Rs. 5,92,040.76 paise as interest @ 18% per annum.
(2.) THE case set up by the plaintiffs was that the District Manager, Food Corporation of India, Ferozepur had engaged one Mali Ram as a contractor for loading and transportation of paddy from Mandi Talwandi Bhai during Kharif season 1997-98 and the procurement season started in the month of September 1997 and huge quantity of paddy was procured which piled up in the market yard of Talwandi Bhai. THE contractor Mali Ram appointed by the defendant-corporation did not lift any paddy and Arihtia Association, Talwandi Bhai submitted an application on 25.09.1997 expressing their readiness to lift the paddy @ 115% ASOR as thefts were taking place and it was in the interest of smooth running of the paddy season. THE said application was recommended for its acceptance by Quality Inspector posted in Mandi Talwandi Bhai, Assistant Manager Quality Control, Talwandi, Assistant Manager Depot A.M. (F) as per the proposed rates and on the instructions of the officials of the defendant-Corporation, the Arhtia Association lifted the paddy stock of Kharif season 1997-98 and transported the same to the destination. THE plaintiffs loaded and transported 3,18,863 bags and 2,53,693 kattas and submitted separate bills of loading to the tune of Rs. 2,80,476.85 paise. THE Assistant Manager (Storage), vide letter dated 01.08.1998, requested the Assistant Manager (Accounts), Food Corporation of India, Ferozepur to make the payment by withholding 20% of loading of the kattas till further orders besides Rs. 10,000 against the security and the Food Corporation of India, Ferozepur paid the plaintiffs a sum of Rs. 1,72,102 through cheque dated 01.08.1998 and withheld the balance amount of Rs. 1,08,374.85 paise besides Rs. 10,000 deducted as security amount. THEreafter, the plaintiffs submitted a separate bill of Rs. 10,46,408.44 paise in respect of transportation charges but no amount from this bill had been paid. THE plaintiffs had put marka on the gunny bags at the instructions of the staff of the Food Corporation of India and a separate bill of Rs. 49,231.90 paise had been raised and for unloading the wooden crates, a separate bill of Rs. 1,250 was submitted. THE plaintiffs unloaded gunny bales for which a separate bill of Rs. 10,120.50 paise was also submitted and the said bills have not been paid despite repeated requests and accordingly, the claim was made for Rs. 12,16,285.24 paise on account of loading charges, transportation charges, charges for putting marka on gunny bags, charges of unloading of wooden crates and charges of unloading gunny bales. THE interest was also claimed @ 18% per annum as per the usage and custom and accordingly claimed Rs. 5,92,040.76 paise as interest. THE Arhtia Association and its members had loaded the paddy, transported it, had put marks on gunny bags, unloaded the wooden crates, gunny bales and all the members had authorized its President to claim the amount and notice dated 10.06.2000 was also served upon the defendants and accordingly, the suit was filed by all the plaintiffs. The suit was contested by filing written statement and various objections were taken including non-joinder of necessary parties namely Mali Ram, the Transport Contractor and it was admitted that the plaintiffs were allowed to work on day-to-day basis but the presence of Mali Ram was necessary since Mali Ram had also filed a suit for recovery for the same period and work which was pending. The suit was objected to being not maintainable as the plaintiffs were not competent to file the suit and the Arhtia Association was not registered. The fact of the paddy piling up in the market yard of Talwandi Bhai and the request to allow the Katcha Arhtia Association to lift the paddy was admitted but it was till the MTC arrangement was made and the payment to Arhtias made in pay office after obtaining proper acknowledgment of paddy receipts from Assistant Manager (D). It was contended that Mali Ram had joined duties on 29.09.1997 and worked upto 02.10.1997 and Mali Ram did not lift paddy on 03.10.1997 and 04.10.1997 and thereafter did not turn up. The District Manager, Food Corporation of India had written letter dated 09.10.1997 whereby he directed the Quality Inspector that if the MTC fails to lift the stocks on day-to-day basis, the work be got done at his risk and costs to safeguard the purchased paddy stocks from unwanted rains/damages. On 09.10.1997, the Katcha Arhtia Association was asked to start the work of lifting paddy on day-to-day basis by the Quality Inspector and the paddy was lifted by Arhtia Association since Mali Ram did not turn up. It was contended that Mali Ram had also filed a suit for permanent injunction against the Food Corporation of India and he also filed a suit for recovery against the defendants. The plaintiffs had submitted a bill for Rs. 74,548.67 paise out of which Rs. 48,147 were paid after deducting Rs. 14,910 (20% withheld on account of loading of kattas, Rs. 10,000 on account of security, Rs. 1,491 as income tax) and the plaintiffs submitted second bill for Rs. 1,26,485.57 paise out of which Rs. 1,23,955 were paid and Rs. 2,530 were deducted on account of income tax, thus the plaintiff was paid Rs. 1,72,102. Thereafter, the plaintiffs submitted bill for Rs. 2,80,476.85 paise and claimed net Rs. 1,08,374.85 paise after adjusting Rs. 1,72,102 already received. It was further pleaded that the plaintiffs did not prefer any bill on account of transportation and that there was shortage of 572 quintals and 35 Kgs. in reconciliation statement, copy of which was attached and defendants were entitled to recover the cost of the same which came to Rs. 5,73,065.43 paise. The bill for Rs. 49,231.90 paise was pending and further a bill of Rs. 2,150 was pending for payment on account of unloading of wooden crates and the plaintiffs preferred a bill for unloading of bales for Rs. 10,120 and the admissible amount came only to Rs. 6,746.70 paise and all the bills were under process. However, regarding transportation charges, the same could be processed only after its submission subject to the reconciliation statement. Thus, it was admitted that the bills of Rs. 2,150, Rs. 10,120.50 paise, Rs. 49,231.90 paise and Rs. 1,08,374.85 paise were pending and the plaintiffs had not preferred the bill for Rs. 10,46,408.44 paise regarding transportation charges till date and it can be considered only on its submission. The defendants were entitled to recovery of Rs. 5,73,065 on account of shortage of paddy weighing 572 quintals and 35 Kgs. The claim of the plaintiffs for interest was also denied.
(3.) THE plaintiffs filed replication, wherein the presence of Mali Ram was denied as being not necessary and it was pleaded that the plaintiffs have already submitted the bills of the work done by them. It was also stated in the replication that the suit was filed by all the members of the Association, who were arrayed as plaintiffs no. 2 to 52 and the Association was not registered. THE right of Mali Ram to claim any amount was denied and it was for the Food Corporation of India to defend the suit and the plaintiffs had no concern with the same and the amount of bills had been illegally withheld by the defendants. THE factum of not submitting the bill of Rs. 10,46,408.44 paise was denied and it was specifically alleged that the same was properly verified by the officials of the Food Corporation of India posted in the Mandi and other field staff including the Assistant Manager (Depot), and who forwarded the same to the office of the District Manager for the payment and there was no shortage of 572 quintals and 35 Kgs., as alleged. THE plaintiffs were never associated in any reconciliation statement and the bags had been lifted at the instance of the officials of the defendants posted in Mandi and delivered at the destination as directed by them and there was no loss of any bag in transit and there was neither any question of shortage. THE plaintiffs had never been informed about any shortage and it was for the first time the ground had been taken in the written statement. THE defendants did not reply to the notice served by the plaintiffs before the institution of the suit. Accordingly, it was pleaded that the defendants have unnecessarily withheld the payment of the amount of the bills and the plaintiffs were entitled for the same. On the basis of the pleadings, the trial Court framed the following issues:- "1. Whether the plaintiffs are entitled to recover a sum of Rs. 18,08,326/- as alleged in the suit? OPP 2. Whether the plaintiffs are entitled to interest, if so, at what rate? OPP 3. Whether the suit is bad for non-joinder of the necessary parties? OPD 4. Whether the suit is not maintainable? OPD 5.Whether the suit has been preferred by the competent persons? OPP 6.Relief.";