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1994 DIGILAW 11 (ORI)

STATE OF ORISSA v. PRATHIBHA PRAKASH BHAVAN

1994-01-07

S.C.MOHAPATRA

body1994
S. C. MOHAPATRA, J. ( 1 ) DEFENDANTS are appellants in this appeal against a decree for realisation of Rs. 36,100 / - with interest @ 6% per annum from 10-6-1981 till it is realised and costs. ( 2 ) CASE of plaintiff is that he is owner of a Firm carrying on business of-supply of articles with the trade name Prathibha Prakash Bhavan. He received order for supply of articles on 25-2-1981 and supplied articles thereafter transported by common carrier which. were received by defendant No. 2 at Hemagiri, in Sundargarh district. Value of goods supplied was Rs. 36,100/- Bills were submitted on, 10-6-1991, and despite assurance, the same not having been paid notice under Section 80, C. P. C. has been issued and the suit has been filed, for realisation of principal with interest, @ 12% per annum. ( 3 ) DEFENDANTS filed a, joint written statement. Their case is that Block Development Officer was not authorised under the financial rules to place orders for such huge quantity. All the articles were not received and State Government was requested for allotment of funds but the same have not been received. It is claimed that suit at Berhampur is nor entertainable and it is barred by limitation. ( 4 ) PLAINTIFF examined himself and proved documents marked Exts. 1 to 25 in support of his case. Defendants examined one witness and proved documents marked Exts. A to M to prove their case. On consideration of these materials, trial Court has decreed the suit for the principal on the finding that the goods were received by defendants and has awarded interest at 6% per annum from the date of the bill till realisation. ( 5 ) IT is submitted on behalf of the appellants that trial Court ought to have held that the Court lacks territorial jurisdiction as goods were, supplied at Hemagiri in Sundargarh district, Besides, payment was to be made in Supdargarh district and no cause of action arises, within jurisdiction of Berhampur Court. Miss. Sanju Panda, learned counsel for plaintiff-respondent on the other hand submitted that the order of supply of goods (Ext. 1) was received by post from Block Development Officer, Hemagiri at Berhampur on basis of which supplies were made being transported through common career at Hemagiri in Sundargarh District. Bills were being sent from Berhampur and communications were made by the defendants to Berhampur. 1) was received by post from Block Development Officer, Hemagiri at Berhampur on basis of which supplies were made being transported through common career at Hemagiri in Sundargarh District. Bills were being sent from Berhampur and communications were made by the defendants to Berhampur. Cause of action in part having thus arose at Berhampur, suit at Berhampur is maintainable. ( 6 ) IN spite of objection to jurisdiction being raised in paragraph 7 of written statement, and an issue being settled trial Court did not consider the dispute specifically, Thus, judgment is vulnerable. However, the same cannot be a ground to reverse the decision if I find that suit is entertainable. ( 7 ) IN a contract; there is offer and acceptance. If offer and acceptance were complete earlier, and placing of order is only a formality, jurisdiction of Court would be where the agreement was complete by acceptance. Defendants have not made out any case of earlier acceptance. Therefore, placing of order can be treated to be an offer by defendants and acceptance of such offer completes the contract. Offer having been sent by post, place of acceptance is the place of contract. Court at the place of contract can entertain a suit for recovery of consideration money, My view is supported by decisions of this Court reported in ILR (1972) Cut 1111 (Orissa Cement Limited, Rajgangpur v. India Fire Bricks and Insulation Co. Ltd.) and (1978) 1 Cut WR 234 (Prag Oil Mills Depot v. Transport Corporation of India ). ( 8 ) IT is submitted on behalf of appellants that. Government transactions are based on rules. There is no rule that an offer is to be made by post. In that view (in?) Art. 299 of the Constitution it is provided that in respect of Government contracts, agreements are to be in writing and the place where written contract is to be executed is the place of contract. Thus, Hemgiri should have been held to be the place of contract and cause of action would arise at Hemgiri in Sundargarh District. If the rules would have been produced by defendants, there would have been scope to examine this question. No such rule has been produced. In this case, there is no written contract. Block Development Officer placed the order by post. If the rules would have been produced by defendants, there would have been scope to examine this question. No such rule has been produced. In this case, there is no written contract. Block Development Officer placed the order by post. In absence of any material, order sent by post from Hemgiri having been received at Berhampur to be accepted by plaintiff on basis of which, goods were transported through common carrier from Berhampur, Berhampur Court has jurisdiction to entertain the suit. ( 9 ) IT is submitted on behalf of appellant that the suit is barred by limitation. Bills were submitted on 10-6-1981 and suit was filed on 23-6-1988, seven years after. State and its officers should not raise question of limitation in a litigation by one of its Citizens. Even if it is permitted to be raised, I find that Block Development Officer had at different times within the period of limitation assured payment after receipt of allotment from State Government. Even in reply to the notice under S. 80, C. P. C. , it is stated that the bills in respect of goods supplied amounted to above Rs. 25,000 / - and for the balance the bills have not been received. Therefore, defendants always acknowledged their liability and assured payment. Suit in the circumstances is not barred by limitation. ( 10 ) IT is submitted on behalf of appellants that two packets were returned back and therefore, defendants would not be liable for the same. This is not correct. Goods in six packets were despatched. There is no dispute about receipt of goods in four packets. It is true that the transport receipts were returned back to plaintiff in respect of two packets. However, Ext. 22 indicates that those two receipts were again returned back by plaintiff stating that the goods in custody of the common career ought to be received by defendants. In the said letter, (Ext. 22) it is clearly mentioned that in the receipts sent back entries have been made on 16-6-1981 that the goods have been released. D. W. 1 has not given any explanation how there were such entries of the goods having been released on 16-6-1981. Accordingly, I am of the view that entire six packets have been received by the Block Development Officer. D. W. 1 has not given any explanation how there were such entries of the goods having been released on 16-6-1981. Accordingly, I am of the view that entire six packets have been received by the Block Development Officer. ( 11 ) IT is submitted on behalf of the appellant that under the financial rules, Block Development Officer had no jurisdiction to place orders for such huge quantity of articles. If the Block Development Officer would have absolutely no jurisdiction under the Statute, I would have ignored the placing of orders by him or receipt of goods to bind defendant No. 1. It is not the case of defendant No. 1 that Block Development Officer has received the goods in his personal capacity. Goods were received for being used officially in the block. Such goods were not intended to be handed over by plaintiff gratuitously. If Block Development Officer was not authorised, defendant No. 1 could have informed plaintiff to take back the goods. There is no such intention. When goods were received and were used for official purpose and at no stage plaintiff was intimated to take back the goods on account of violation of financial discipline by Block Development Officer, both defendants are liable to pay the price of goods as provided under S. 65 of the Contract Act. Therefore, plaintiff is entitled to the price of 6 packets of goods which amounts to Rupees 36,100 / - and defendants are liable to pay the same. ( 12 ) ON behalf of appellant it is submitted that interest is not payable on this amount as there is no stipulation for payment of interest. Normally, plaintiff being a businessman who has suffered on account of detention of money would be entitled to damages. But the correspondences in this case indicate that plaintiff tolerated defendants till he filed a suit. Therefore, plaintiff is not entitled to interest till the date of filing of the suit. Decree to this extent is reversed. Question of pendente lite and future interest, however, stand on a different footing. Trial Court has decreed interest @ 6% per annum. This is justified under Section 34, C. P. C. Hence, plaintiff is entitled to interest at 6% per annum pendente lite and future. ( 13 ) IN result, appeal is allowed in part. Plaintiff is entitled to Rs. Question of pendente lite and future interest, however, stand on a different footing. Trial Court has decreed interest @ 6% per annum. This is justified under Section 34, C. P. C. Hence, plaintiff is entitled to interest at 6% per annum pendente lite and future. ( 13 ) IN result, appeal is allowed in part. Plaintiff is entitled to Rs. 36,100/- with pendente lite and future interest at 6% per annum. Plaintiff shall be entitled to proportionate costs in the suit. There shall be no order as to costs in this appeal. Appeal allowed in part. .