- (1.) Having been non suited by both the learned courts below, thereby dismissing his suit for declaration, for rendition of accounts and mandatory injunction, plaintiff has approached this Court by way of instant regular second appeal.
(2.) Briefly put, the facts of the case, as noticed by the learned first appellate court in para 2 and 3 of the impugned judgment, are that on 29.1.1998, the plaintiff-appellant filed a suit for declaration, rendition of accounts and mandatory injunction with the averments that the plaintiff was a registered firm and Gian Chand was one of its registered partners and he was competent to file the suit on behalf of the plaintiff firm. According to the plaintiff/appellant, vide agreement dated 13.1.1995, the plaintiff/appellant was awarded milling contract of 500 M.T. Superfine and 500 M.T. fine quality of Haryana Paddy of crop 1994-95 by the defendants/respondents. As per the mutual consent of the parties, the plaintiff/appellant delivered 3737 qtls. of rice of superfine variety against which, the defendants/respondents had supplied 5000 qtls. of paddy of fine quality. According to the plaintiff/appellant, he was entitled to differential cost between two varieties of rice. The plaintiff/appellant was also entitled to differential cost of variety of cost between superfine and fine quality at the rate of Rs.40/- q1tls., which was the difference of price between the two varieties at that time. However, the defendants/respondents paid a sum of Rs.1,84,375/- to the plaintiff/appellant on the basis of the said difference of cost of two varieties of paddy instead of two varieties of rice. The defendants/respondents had also failed to deliver any paddy against the delivery of 201 qtls, 1 kg. and 300 gms of rice supplied by the plaintiff/appellant to them. As per the terms and conditions of the agreement, the plaintiff/appellant was entitled to 1 1/2 time cost of paddy from the defendants/respondents for the quantity arrived as per percentage of yield fixed by the defendants/respondents. According to the plaintiff/appellant, the defendants/respondents were only entitled to claim cost of balance gunny bags which remained with the plaintiff/appellant, at the rate to the extent of 60%, i.e. after giving a deprecation of 40% on the cost of gunny bags used in supply of paddy and the said amount was adjustable towards milling, stitching and other amounts payable to the plaintiff/appellant by the defendants/respondents. Besides this, the plaintiff/appellant was also entitled to refund of security amount and other amounts of cash deposited by the plaintiff/appellant with the defendants/respondents at the rate of 21% per annum with effect from 31.3.1995, when the milling contract was completed on the part of the plaintiff/appellant. The defendants/respondents were called upon by the plaintiff/appellant several times to render the complete accounts regarding the milling contract after giving due adjustment of the amounts mentioned herein before but the defendants/respondents failed to do the needful, hence, the present suit for declaration to the effect that the plaintiff/appellant was entitled to adjustment of the amount calculated as per the facts mentioned above. The plaintiff/appellant further sought a mandate to direct the defendants to render the complete and true accounts of the milling contract after giving necessary adjustment and pay the balance amount to the plaintiff/appellant with interest at the rate of 21% per annum with effect from 1.4.1995 till the date of realization.
(3.) The said suit was contested by the defendants/respondents. In the written statement, various preliminary objections regarding maintainability, locus standi, cause of action, jurisdiction etc., were taken, which shall be reflected in the issues. On merits, it was inter alia pleaded that there was no mutual consent as alleged and it was the plaintiff/appellant, who offered the said rice to the defendants/respondents.;