JUDGMENT 1. - This appeal has been preferred by the defendant appellant against the judgment and decree passed by the Earned 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. 8,700/- 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 the 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 15 wagons. In para 9 they have given the details that the plaintiff suffered a loss at the rate of Rs. 1.50 per bag per qtl. It was submitted that for 19 wagons they have suffered a loss of Rs. 10,451.05. For the remaining 5t, wagons they have also stated that they suffered the loss of Rs. 20,748/-. Plaintiff also claimed interest on the raid 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-II of the plaint it has been specifically mentioned that under section 143 of the Cooperative Act notice has been served to the defendant as well as to the Registrar, Cooperative Society. 3. 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. 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 Cooperative Society was not their agent. It was also submitted that the notice was rot served on the Registrar Learned District Judge after considering the pleadings of the parties framed the following issues : HINDI MATTER 373343 4. Being aggrieved with the judgment and decree passed by the court below this appeal has been preferred. Mr. Singhi counsel for the appellant first Societies Act are applicable. It was further submitted that the plaintiff has failed to prose that the notice under section 143 of the Rajasthan Cooperative Societies Act was served on the Registrar, Cooperative 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 judgment 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. 5. 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 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 Section 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 Register 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, Cooperative Society by a registered past. Plaintiff also produced certificate of Superintendent of Post Office to show that the notice has been delivered to the Registrar. Cooperative Society on 25th August, 1969. Thereafter, the court gave an opportunity to Mr. Singhi to product the evidence in rebuttal, if he so choses. 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 decide now because the plaintiff has proved that he has also served the notice to the Registrar, Cooperative Society. 6. The second contention of Mr. Singhi is that the notice Ex. D.W. 1 /C/ 1 is not in accordance with the provisions of Section 143. In Para 9 complete details have been given and in Para II the respondents have been served with a notice that it' 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 dismissed 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 expected by Mr. copy of the power of attorney which was expected by Mr. S.R. Jain, Manager of the defendant Society in favour of M/s. Sambhar Kray 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 dealt receiving the amount and receiving the gunny bags (Bardana). From Ex. p. 5 which has remained un-controverted it is char that Sambbar Kray Vikraya Sahkari samiti Ltd. was the authorised local agent of the appellant. Vide Para 10 of power of attorney they hale 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 percent. 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, 1961. 7. 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, Somrath 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 Cooperative Societies failed to lift the salt the private parties were allowed to lift the salt on behalf of the appellant. He further admitted that the Industries Department was objecting this system and he released 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. 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 surrendered 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 Somrath 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 enuired into a contract. Mr. Samrath Rajasthan General Manager requested to Shri Roop Raj Purohit to reconsider the matter. D.W. 3 Lala Ram hits appeared in the witness box. He was working under Mr. Tyagi He submits that there was no agreement. He does 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. 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 Sahkari 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 Ram 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, 1969. 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 he sold to the defendant. He admits that on his persuasion Ram Mohan surrendered 25 wagons and agreed that there should be contract for only 75 wagons. He proves the 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 addreseed the letter Ex. 34 to the Director of Industries. 8. PW-4 Kalyan Sharma was the employee of the Marketing Cooperative 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. 3,700/-. He also support the statement of P.W. 3 Ram Singh about the surrender of 25 wagons. PW. 9 Bajrang Lal was the employee of the local agent Marketing Co-operative Society. 1 letter was signed by Mr. Tyagi and Mr. Tyagi received Rs. 3,700/-. He also support the statement of P.W. 3 Ram Singh about the surrender of 25 wagons. PW. 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. 9. 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. 10. Mr. Singhi, counsel for the appellant, with all vehemence at his command submitted that it is nesessary to prove the loss and the loss has not been proved. He submits that this Court in the case of, (1) State v. Chandra Mohan Chopra 1971 WIN 1 , has held that it is the duty of the plaintiff to prove the loss and the Chief Engineer, Irrigation Department has c me in the witness box and he has categorically stated that on account of delay on the part of the contractor in completing the work in fact, there occasioned no loss to the Government and for this reason the appeal of the plaintiff was dismissed. 11. The meaning of the word 'Lose' (sic) in Webster's Third New International Dictionary has been defined as under : "Lose, get lost perish, destroy, to bring to destruction, ruin (what to ourselves in passion we propose, the passion ending cloth our purpose, now used chiefly in passive construction (ship was lost on the reef), to fail to keep at hand or accessible, miss from its customary or supposed place, to suffer deprivation of, part with esp. in an unforeseen or accidental manner)." Lose may be personal lose may be to the productivity, lose may be to the society, lose may be to the nation and further more lose may be positive, lose may be negative. With due respect for their Lordships of this Court, I think that their Lordships lost the site of the meaning of the word 'lose'. The appellant's counsel might have not brought to the notice of their Lordships the meaning of the word 'lose'. With due respect for their Lordships of this Court, I think that their Lordships lost the site of the meaning of the word 'lose'. The appellant's counsel might have not brought to the notice of their Lordships the meaning of the word 'lose'. I fail to understand how the delay in the construction of the irrigation project is rot a lose. Irrigation is the source of productivity and irrigation facilities are necessary for the production of the agriculture products. In terms of money one can say that the Government gave the contract for Rs. 50,000/- and the contract was completed after two years also for a sum of Rs. 50,000/- and, as such there is no lose. But the word 'lose' has not been considered at all by their Lordships in the said case. It is a national lose and the courts are not the courts of the feudal Judges but the courts are the courts of the welfare state. If the irrigation could not be started for two years on account of the delay in the completion of the project can it be said that the State has not suffered the lose. It is not only the State but the nation has suffered the lose, every individual has suffered the lose. The produce which might have increased. In cause of the irrigation could not increase, the cultivators suffered the lose because they failed to get the water supply for irrigation because of the delay done by the contractor. Consumer suffered the lose because of the shortage of the production on account of non-supply of water, because of the delay in executing the contract for the irrigation projects. Thus it is not a lose to an individual, lose to the nation, lose to the society, lose to purchaser, lose to consumer and lose to everyone. If this type of lose is not considered by the Judges sitting in the court and we shut our eyes then I feel that we are not doing the duty towards the society, towards the nation. I think that the Government Advocate has also failed in discharging its duty by pointing out the lose of the nature referred above on account of the non completion of the irrigation project within time. I think that the Government Advocate has also failed in discharging its duty by pointing out the lose of the nature referred above on account of the non completion of the irrigation project within time. With due respect and apology for my Lordships who have decided the case (supra) I am constrained to say that I cannot subscribe to the view which their Lordships have taken. But, in the instant case, the lose is altogether of a different nature. So, it is not necessary for me to refer to the case to the larger Bench, though, I differ with the decision of the case referred. 12. Mr. Singhi has cited Wore me the case of Hindustan Sugar Mills v. State of Rajasthan . This case cited by Mr. Singhi is not at all applicable in the facts and circumstances of the case. No one dispute the proposition laid down by their Lordships but it is necessary that the lose will have to be established and after determining the lose only the decree can be passed. The court is duty bound to ask question as to the quantum of lose suffered by the defendant by reason of the default if any, on the part of the appellant. Learned District Judge has also dealt with this matter in detail and it is not necessary for me to deal with it again. However, I will deal with it in a very brief way. 13. P.W. 1 Ram Mohan, plaintiff, himself has appeared in the witness box, he has produced his Accounts Books Ex. 7 to Ex. 11 and he has also produced the entries Ex. 16 to Ex. 3... He has also shown that there was a prior contract and in all the 19 bilitis the destination has been shown and the gunny bags were also suppled. He submits that inspite of the prep ration of the bilities Ex. 13 to Ex. 32 have not been handed over to the plaintiff. He has submitted that he entered into the contract with the other pasty. He also refers about the surrender etc. He has also proved the difference of rate. He submits that at the relevant time the rate of the salt was 7.50 or Rs. 8/- per qtl. and he entered into an agreement to purchase the salt at the rate of 5.37 per quintal. He also refers about the surrender etc. He has also proved the difference of rate. He submits that at the relevant time the rate of the salt was 7.50 or Rs. 8/- per qtl. and he entered into an agreement to purchase the salt at the rate of 5.37 per quintal. Thus, according to him there was a minimum difference of 2.13 per quintal This lose relates to 19 wagons for which the bilities were prepared outside the destination were shown but they were not handed over to the plaintiff. He has also claimed the cost of the Bardana supplied, thereby he submits that be has suffered the lose of Rs. 10,451/- He has also proved the lose of Rs. 20,748/- on account of 58 wagon; which he could not get. Plaintiff has also produced P.W. 2, Om Prakash and he has stated what was the cost of that salt ant how much is the difference. He has also proved that he purchased vide Ex. 40, (P.W. 2/40) salt at the rate of 9.75. He has also produced his Accounts Books and has shown that he has purchased the rate of Rs. 8.15 and Rs. 8/- salt in the month of July, He has given the details about the increase in the salt in his statement P. W. -5 Ram Bilas. is also the dealer. He has stated that he purchased the salt at the rate of 7.14 per quintal at Sambhar and he has also stated that vide Ex. 42 he has purchased salt with Bardana at the rate of 7.58 n p P.W. 6, Ram Niwas is also the dealer and be has also stated about the cost of the salt and be produced the document in his Accounts Books. P.W. 7, Madan Lal has also produced his Accounts Books Ex. 45 to Ex. 51 to show the prevailing rates of salt. P.W. 8 Chhote Lal has also produced the Accounts Books Ex. 51 to Ex. 54 to show the cost price at the relevant time P.W. 10 Ram Swarup has also produced the Accounts Books Ex 59 to Ex. 71 cost of the salt at the relevant time. P.W, 11, Govind Ram, has also produced his Accounts Books to show the costs of the salt and relevant entries are 72 to 88. 51 to Ex. 54 to show the cost price at the relevant time P.W. 10 Ram Swarup has also produced the Accounts Books Ex 59 to Ex. 71 cost of the salt at the relevant time. P.W, 11, Govind Ram, has also produced his Accounts Books to show the costs of the salt and relevant entries are 72 to 88. Thus, there is a positive evidence that the plaintiff has suffered the lose more than what be has claimed. It is not necessary to prove the actual lose. Anticipated lose of profit can be determined by the Court while awarding the compensation. Whit is necessary is that the plaintiff should establish what was the contractual rate of purchase and with it was the rate of the article on the date on which it was to be supplied. Th difference between the two is a lose to the purchaser if it is not been (sic) supplied by the seller to the purchaser. The argument of Mr. Singhi do not find favour. I consider that the court below has correctly appreciated the evidence and has rightly passed the decree in favour of the plaintiff. 14. No interest can be awarded by the Court on the amount of damages. In this case the appellant filed the appeal and the court granted stay in favour of the appellant in a way by which the effective execution of third decree was stayed. The court directed that the amount should be deposited in the fixed deposit and whoever will win the case will get the amount with interest accrued there on. Thus, on the day of the deposit the decree was executed, if the appellant with case it will be a case of restoration and the appellant will restore the amount. If the respondent succeeds he can withdraw the amount which is lying in the court on account of the execution proceedings. Thus, the payment or deposit in the court in lieu of the order of the court, granting a stay against the withdrawal is completion of the execution with a condition that it shall not be paid to the plaintiff respondent. Thus, the question of granting interest does not arise at all. It is the mesne profit which the appellant is getting and that too after the execution by way of deposit of the money in the court. 15. Thus, the question of granting interest does not arise at all. It is the mesne profit which the appellant is getting and that too after the execution by way of deposit of the money in the court. 15. For the reasons mentioned above, the plaintiff-appellant (sic) shall be entitled to get interest on the amount which has been deposited in the court under the orders of the Court, but the plaintiff cannot claim any interest of the intervening period i.e. from the date of the passing of the decree to the date of the deposit in the court and, for this reason no interest can be awarded for the intervening period. 16. In the result the judgment and decree of the court below is maintained and the appeal of the appellant is dismissed. The judgment and decree of the court below is modified only to the extent the it the appellant shall not be liable to pay interest for the intervening period i.e. from the date of passing of the decree to the date of deposit of the amount in the court. If the amount has been deposited in the court then the proportionate amount of interest alongwith the interest accrued thereon shall be refunded to the appellant. No order as to costs.Appeal dismissed. *******