BALIA, J. - (1.) THIS is defendants' appeal against the judgment and decree passed by the Addl. District Judge No.1 Sri Ganganagar on 28.10.87 by which the plaintiff's suit for recovering Rs. 19105/ - was decreed with costs. Interest @ 10% since the date of filing of the suit until recovery was also awarded.
(2.) THE plaintiff -respondent is a registered firm dealing in sugar and other provision. The appellant -defendant no.1 is a Company registered under the Companies Act and is engaged in manufacturing the sugar and the sugar is sold to the licence -holders. Defendant No.2 is the part of defendant no. 1 who is alleged to have sold the sugar at fair price to employees of defendant no. 1 Company and is not a separate entity. On promulgation of the Sugar (Price Control) Order 1979 on 12.9.79 by the Central Government in exercise of its powers u/Sec. 3 of the Essential Commodities Act, 1955, the maximum ex -factory price of sugar as well as maximum price at which sugar could be sold in retail was fixed. According to the said Order of 1979, a manufacturer in Rajasthan could sale the sugar manufactured by him at maximumex -factory price of Rs. 268/ - pet quintal which was inclusive of Excise Duty and the dealer could sale the sugar at Rs. 2/98 paisa per kg. The defendant no.1 had refused to sell the sugar at the maximum price fixed under Control Order. In order to defeat the said provision and avoid consequences defendant no.1 Company devised a method under which it purports to sale sugar in the name of defendant No.2 at Rs. 285/15 paisa per quintal. Through this device the defendant no.1 sold 1114 bags of sugar @ Rs. 285.15 paisa per quintal and recovered the price of the same which was more than maximum ex -factory price which defendant No.1 could lawfully charge of sales made by him. It was also alleged that bills have been provided in the name of defendant no.1. The name of defendant no.2 was added in all the bills which were issued by defendant no.1 under the signatures of its own officer and payment also was made and received by the defendant no.1 in its own name. The defendant no.2 was alleged to be only a front. It was also alleged that defendant no.2 did not have any licence. The sugar at cheap price was sold !o the workers of the factory at the outlet. Defendant No.2 had no licence to sell sugar in wholesale and thus the defendant no. 1 has recovered Rs. 17.15 paisa per quintal in excess of ex -factory price at which the manufacturer was authorised to sell under the Order of 1979, from the plaintiff dealer to which he is entitled to restitution. The total amount recovered in excess was Rs. 19,105/ - In support of its claim, the plaintiff also pleaded that according to bye -laws and the Rules framed under the Rajasthan Agricultural Produce Market Act, 1961, the market fee is levied on the first sale of the product and not thereafter. In the bills given to the plaintiff, the defendant has charged the market fees which goes to show that it was the first sale by the manufacturer and intermediary there was no transaction between the manufacturer defendant No.1 and the so called shop defendant No.2. On these assertions the plaintiff claimed decree for Rs. 19,105/ -.
(3.) THE defendants denied the claim of the petitioner inter alia on the ground that defendant no.2 had independent licence. The defendant no.1 has not entered into any transaction of the sale with the plaintiff. The defendant no.2 has sold the sugar to defendant no.1 and the defendant no.2, who had sold the sugar in question to the plaintiff at Rs. 285.15 paisa per quintal was not under an obligation to sell the sugar at Rs. 268/ - per quintal to the plaintiff. Therefore, it was alleged, that sale by defendant No.2 to plaintiff was not in breach of the Control Order. The allegations that the defendant No.2 was only a front of defendant no. 1 was denied.;