VINEET KOTHARI, J. - (1.) THE appellant/defendant has filed the present first appeal assailing the impugned judgment and decree dated 04.11.1992 passed by the Additional District Judge No.1, Udaipur in Civil Original Suit No.25/75 Madhusudan Vegetable Product Co. Ltd. Vs. M/s Chiranjiv Lal Phool Chand and Ors., whereby the suit filed by the plaintiff -firm (respondent No.4 herein) for recovery of Rs.30,852.95 along with interest @ 6% per annum from the date of filing of the suit, was decreed.
(2.) THE plaintiff/respondent No.4 filed a suit against the defendants for recovery of Rs.30,852.95 which recovery was sought for supply of 200 Tins of "Ghee" ("Madhuram" brand). The said suit was contested by the defendants (judgment debtor) on the ground that the defendants earlier purchased another lot of "Ghee" of "Ghunghat" brand (550 Tins), however, out of which certain containers (118 in number) were found to be adulterated by the Food Inspector, Banswara, and therefore, the defendant had to suffer prosecution under the provisions of Food Adulteration Act. The defendant thus sought to adjust the price of such 118 adulterated tins of "Ghee" against the present consignment of 200 Tins of "Madhuram" brand "Ghee".
(3.) THE learned trial court, however, rejected the said defence of the defendants and proceeded to decree the suit filed by the plaintiff/respondent No.4 and hence the present first appeal has been filed by the appellants/defendants. Mr. M.K. Panwar, learned counsel for the appellants/defendants relied upon the judgment of Calculatta High Court in the case of The Board of Trustees of the Port of Calcutta Vs. Bengal Corporation Pvt. Ltd., 1979 AIR(Cal) 142 and submitted that since the goods were not of merchantable quality within the meaning of Section 16 of the Sales of goods Act, 1930, therefore, the price of earlier consignment of "Ghunghat" brand "Ghee" to the extent of 118 Tins, was required to be adjusted qua the the present consignment of "Madhuram" brand "Ghee". He, therefore, argued that the learned court below has erred in granting decree which is not sustainable.;