D. L. MEHTA, J. - (1.) THIS appeal has been preferred by the defendant appellant against the judgment and decree passed by the learned District Judge, Jaipur District Jaipur, on 23rd November, 1976.
(2.) THE respondent plaintiff filed a suit for the recovery of damages for a sum of Rs. 32,200/- against the appellant-defendant. A contract was entered into on behalf of the defendant-appellant by Sambhar Marketing Co-operative Society for the supply of 100 wagons of salt at the rate of Rs. 537/- per wagon. Plaintiff paid in advance a sum of Rs. 3,700/- and the receipt was passed by Mr. R. B. Tyagi a representative of the defendant-appellant. Agents of the defendant-appellant demanded the jute bags for 19 wagons and same was supplied by the plaintiff. THE costs of the jute bags has been estimated as Rs. 3,411,55 n. p. THE case of the plaintiff is that inspite of the supply of the Bardana (jute bags) the salt was not supplied to the plaintiff. In para 6 of the plaint it has been mentioned that the defendants asked the plaintiff to surrender 25 wagons and in pursuance thereof they surrendered the order of 25 wagons and now there remained the order for only 75 wagons. In para 9 they have given the details that the plaintiff suffered a loss at the rate of Rs. 7. 50 per bag per qtl. It was submitted that for 19 wagons they have suffered a loss of Rs. 10. 451. 05. For the remaining 56 wagons they have also stated that they suffered the loss of Rs. 20, 748/% Plaintiff also claimed interest on the said amount amounting to Rs. 1,000. 95. THE plaintiff thus fixed the liability of the defendant for the payment of Rs. 32,200/- and filed the suit. In para-11 of the plaint it has been specifically mentioned that under section 143 of the Co-operative Act notice has been served to the defendant as well as to the Registrar, Co-operative Society. The plaintiff has submitted Schedule A and B giving the details of the loss suffered by them. Defendant submitted that Shri Tyagi was their employee but was not the General Manager so he was not competent to enter into contract. It was also submitted that the sum of Rs. 3,700/- was received by the defendant but they were credited in their account at Sambhar and actually the disbursement was not made at Jaipur. It was also submitted that Sambhar Marketing Co-operative Society was not their agent. It was also submitted that the notice was not served on the Registrar. Learned District Judge after considering the pleadings of the parties framed the following issues: ******* Being aggrieved with the judgment and decree passed by the court below this appeal has been preferred. Mr. Singhi counsel for the appellant first of all submitted that the provisions of Section 143 of the Rajasthan Co-operative Societies Act are applicable. It was further submitted that the plaintiff has failed to prove that the notice under section 143 of the Rajasthan Co-operative Societies Act was served on the Registrar, Co-operative Society. It was also submitted that he has taken a specific plea in the written statements that there is no issue on this count. Mr. Ashok Sharma, counsel for the respondent has submitted that in para-11 of the plaint specific averment has been made by the plaintiff that notice under section 143 has been served on the Registrar. Mr, Sharma pointed out from the judgement of the court below. Court below has discussed this point and has held that there is averment in the plaint. Copy of the notice as well as the postal receipt was also submitted by the plaintiff with the plaint and both of them are on record. Court below has held that the plaintiff has not adduced the evidence only because of the fact that there was no issue and the defendant has not objected. Court below held that the defendants have waived this objection. Mr. Sharma, counsel for the respondent submitted that in the alternative the court should invoke the provisions of Order 41 Rule 27 suo motu as it is not the fault of the plaintiff. The mistake if any has crept in because of the waiver or silence of the defendant and also of the fact that the court has also not taken note of the pleadings. It was also submitted by Mr. Sharma that his client is present in the court and he should be examined. The court in exercise of its powers conferred under Order 41 Rule 27 C. P. C. read with Sec. 151 C. P. C. examined the plaintiff again in this court. The plaintiff proved five documents in all. Plaintiff has proved the copy of the notice which was served on the Registrar and which was on the file. Plaintiff has also proved the postal receipts which were on the file to show that the notice has been sent to the Registrar, Co-operative Society by a registered post Plaintiff also produced certificate of Superintendent of Post Office to show that the notice has been delivered to the Registrar, Co-operative Society on 25th August 1969. Thereafter, the court gave an oppor-tunity to Mr. Singhi to produce the evidence in rebuttal, if he so chooses. Mr. Singhi submitted that he does not want to produce any evidence in rebuttal, as such, the court continued the arguments. The controversy about the applicability of Section 143 is not necessary to be decided now because the plaintiff has prov-ed that he has also served the notice to the Registrar, Co-operative Society. The second contention of Mr Singhi is that the notice Ex. D. W. 1/c/l is not in accordance with the provisions of Section 143. In Para 9 complete details have been given and in Para 31 the respondents have been served with a notice that if after the receipt of the notice Rs. 32,200/- are not paid within a period of two months the suit shall be instituted. The plaintiff has also given the clear dates showing how the cause of action has accrued in his favour. I do not find any infirmity in the notice and the suit of the plaintiff cannot be dismi-ssed on the ground that the notice served is defective P. W. 1 Ram Mohan, has appeared in the witness box and he has produced Ex 5. copy of the power of attorney which was executed by Mr. S. R. Jain, Manager of the defendant Society in favour of M/s Sambhar Kraya Vikraya Sahkari Samiti Ltd. This Marketing Cooperative Society has been appointed as a local agent and to do all acts which are necessary in the matter of clearance of the vehicles dealing with the dealers, receiving the amount and receiving the gunny bags (Bardana ). From Ex. P. 5 which has remained un-controverted it is clear that Sambhar Kraya Vikraya Sahkari Samiti Ltd, was the authorised local agent of the appellant. Vide Para 10 of power of attorney they have been appointed as local agents to do all acts in relation to their salt business and they were authorised to execute and to do all deeds, acts or things as usual and effectively in all respects as the appellants themselves could do if personally present. They were also authorised to make payments and to receive payments. Vide Ex. 1 the payment of Rs. 3,700/- has been received by the defendant on 29th December, 1967.
(3.) ON behalf of the defendants Mr. D. R. Jain has appeared in the witness box. He has accepted that Mr. Tyagi was working with the appellant as an expert on deputation and he was a Joint Registrar of the State of Rajasthan. He has also admitted that Tyagi used to visit Sambhar in connection with the affairs of the appellant's business D. W. 2, Samrath Raj was the General Manager of the Bank. He says that in the file there is no contract agreement. He submits that after Ex. A. 4 there is no agreement on record. He accepts that if the Co-operative Societies failed to lift the salt the private parties were allowed to lift the salt on behalf of the appellant. He further admits that the Industries Department was objecting this system and he referred the matter to the Industries Department showing the difficulty of the appellant. He also admits that on 20th December 1967 it was resolved that in case the Societies are not in a position to lift the salt it may be lifted by the private parties. He further admits that on behalf of the appellant Mr. Tyagi used to visit Sambhar to deal with the business of the salt He admits that Ex. 34 is the document which bears his signature. Ex. 34 letter was addressed by Samrath Raj, General Manager to the Director of Industries on 8th March, 1968. In this letter he has mentioned that they have not received indents from the Society for part of supplies for third or 4th quarters and, as December was the closing month, they considered it proper that the quota should be allowed to be lifted through the private parties. In this letter he has also explained that on their persuasion the party has surren-dered 25 wagons. Thus, this letter explains how the 25 wagons were surrendered in favour of the defendants. This letter further goes to show that there was an agreement and as such, the question of surrendering of 25 wagons crept in and which were surrendered by the plaintiff. In this letter it has also been specifically mentioned that he has given an undertaking that in future they will not deal with the private party. Three facts stand established from the statement of Samrath Raj, General Manager that (i) Tyagi was dealing in the business matters relating to the salt at Sambhar, (ii) that private contract was given to private party, (iii) out of the contract the private party was asked to surrender the contract for 25 wagons. It is not the case of the appellant that the private party was other than the plaintiff. The plaintiff has surrendered 25 wagons goes to show that he was the person with whom the appellant entered into a contract. Mr. Samrath Raj, General Manager requested to Shri Roop Raj Purohit to reconsider the matter. D. W. 3 Lala Ram has appeared in the witness box. He was working under Mr. Tyagi. He submits that there was no agreement. He doer not show any personal knowledge about any transaction. He admits that Tyagi deposited the amount with the appellant. He is not in a position to say the name of the party who has surrendered 25 wagons. He admits that on Ex. 33 A to B are the signatures of the Manager, Marketing Society. Ex. 33 is the letter dated 7th March 1968 by which the plaintiff has surrendered 25 wagons vehicles of salt. This letter was received by the Manager of the Sambhar Kray Vikray Sahakari Ltd. Mr. Madan Mohan and his signatures have been proved by this witness. In Ex 34 there is a reference of surrender of 25 vehicles salt and from this letter it stands proved that there was an agreement for the supply of 100 wagons. Plaintiff was persuaded to surrender 25 wagons and he surrendered 25 wagons vide Ex. 33 dated 7th March 1968 Thereafter. Samrath Raj Jain on the next day i. e. on 8th March 1968 referred the matter for reconsideration to the Director of Industries and referred therein about the surrender of 25 wagons which was done by the plaintiff vide Ex. 33 dated 7th March 1968. ON behalf of the plaintiff PW 3 Ram Singh has appeared in the witness box. He was the Organisational and Financial Expert and was working with the appellant. He has stated that he was sent by the General Manager Samrath Raj in the. year 1968 to persuade the plaintiff to reduce the quantum of wagons agreed upon to be sold to the defendant. He admits that on his persuasion Ram Mohan surrendered 25 wagons and agreed that there should be contract for only 25 wagons. He proves letter Ex. 33 by which Ram Mohan surrendered 25 wagons. He further admits that Marketing Co-operative Society was working as local agent of the appellant. He submits that he came down to Jaipur and handed over Ex, 33 to Mr. Mathur General Manager and thereupon Mr. Mathur addressed the letter Ex. 34 to the Director of Industries. Pw 4 Kalyan Sharma was the employee of the Marketing Co-operative Society and he admits that Mr. Tyagi entered into an agreement with the plaintiff for the sale of 100 wagons on behalf of the appellant and Ex. 1 letter was signed by Mr. Tyagi and Mr. Tyagi received Rs. 3700/ -. He also supports the statement of P. W. 3 Ram Singh about the surrender of 25 wagons. P. W. 9 Bajrang Lal was the employee of the local agent Marketing Co-operative Society. He also admits about the contract which was entered into and the payment of Rs. 3,700/- made by the plaintiff to the defendant. He also supports the theory of surrender of 25 wagons. Mr. Tyagi who was the employee of the appellant has not appeared in the witness box and adverse inference can be drawn against the appellant for not producing Mr. Tyagi as a witness. ;