JUDGMENT 1. - This first appeal filed under Section 96 of Civil Procedure Code is directed against judgment and decree dated 8.7.2002 passed by District Judge Udaipur in Civil Original Suit No. 148/1997 - Vaya Copy Manufactures & Stationers v. State & Anr. 2. Briefly stated, the facts of the case are that plaintiff-respondent filed a suit for recovery of Rs. 1,23,440/- against defendant-appellants stating inter-alia therein that the defendants invited tender for supply of stationery and other material and in response thereto the tender off respondent-plaintiff was accepted on 10.4.1996 being lowest one. The samples of stationery and other articles, which were to be supplied, were also submitted. After negotiations on 31.5.1996 and 19.6.1996, finally it was agreed that the plaintiff was to supply the stationery and other material as per the terms and conditions mentioned in Ex.2. Thus, the contract entered between the parties came into existence for supply of material desired by the defendant-appellants. There was delay in supplying the material but when the material was supplied, no objection was raised to that and the defendants utilised the material supplied. During the continuance of contract agreement, payments in regard to supply of material were also made. At the time of final bill in relation to first supply order, deduction was made from the cost of material @ 20% and regarding other work order deduction was made @ 30% of the cost of the material supplied. The case of the plaintiff-respondent is that as per the terms and conditions it was agreed between the parties that in case the supply of the material was not to the satisfaction of the defendant-appellants then after providing an opportunity to the plaintiff, the Collector (Literacy) Chittorgah, could pass order for the return of the material. In the instant case, the material was used and at no point of time any complaint was made that the material was not upto mark but without any rhyme and reason the deductions were made in an arbitrary manner. It was prayed that suit be decreed for the amount, which was required to be paid to the plaintiff by the defendants in pursuance to the supply of goods to the defendants. 3. The defendants in their written statement stated that the goods supplied were not upto the mark and further the supply was delayed. It was prayed that suit be decreed for the amount, which was required to be paid to the plaintiff by the defendants in pursuance to the supply of goods to the defendants. 3. The defendants in their written statement stated that the goods supplied were not upto the mark and further the supply was delayed. It is further case of the defendants that after examining the material supplied by the plaintiff defendants came to the conclusion that it was not as per the specifications and therefore the deductions were made from the cost of the material supplied by the plaintiff. It was prayed that the suit be dismissed. 4. Learned trial Court, on the basis of the pleadings of parties, framed following issues : 1. whether the material supplied by the plaintiff was of lower quality and therefore the defendants were entitled to deduct a sum of Rs. 1,10,215? 2. Whether the plaintiff was entitled to interest @ 18% per annum for the period upto the filing of the suit i.e. Rs. 13,225? 3. Whether the plaintiff assured the defendants that he shall be bound by the decision of the Committee constituted by the defendants? 5. The plaintiff in support of its case, examined PW1 Ramesh Vya, PW2 Vijay Kumar Vya and tendered some documents in evidence. The defendant examined DW1 Shyamlal Gurjar, DW2 Onkarmal Rajotiya, DW3 Ramkaran, DW4 Snehlata Panwar and DW5 Shyam Singh Mandaliya. 6. The trial Court, after hearing both sides, decreed the suit vide its judgment and decree dated 4.4.2000. The defendants, feeling dissatisfied with the judgment and decree passed by the learned trial Court, have filed the present appeal. 7. It has been contended by the learned counsel for the appellants that in this case the trial Court has wrongly shifted the burden of Issue No. 1 & 3 on the respondent-defendants whereas the burden to prove those issues ought to have been on the plaintiff, therefore, the findings arrived at on Issue No. 1 & 3 are not proper. It has also been contended that on account of delay in supplying the material and the material supplied by the Contractor was not upto the specification or the sample therefore the deductions were made. It has also been contended that on account of delay in supplying the material and the material supplied by the Contractor was not upto the specification or the sample therefore the deductions were made. It has also been submitted that the Committee constituted to check the material came to the conclusion that the supplied material was not upto the mark, therefore, the deductions were made and the plaintiff is not entitled for any deduction. According to the learned counsel for the appellant-defendants the deductions have rightly been made in an appropriate matter. 8. On the other hand, it has been submitted that the defendants without any objection received the material supplied. It has also been submitted that not only this but the materials supplied by the plaintiff were used by the appellant-defendants and at no point of time it was intimated to the plaintiff that the material supplied were not as per specification or the sample. It has been further submitted that deduction from the cost of material @20% or 30% is absolutely arbitrary as there was no such condition like that. It has also been submitted that it is not known as to how the percentage for deduction have been determined for with holding the payment of the plaintiff from the cost of the material supplied to the defendants. The learned counsel submits that the entire amount, which has been withheld by the defendants, is of plaintiff and since 1996 the amount is with them. In the last it was submitted that what to talk of profits, in fact the plaintiff has been put to loss of principal as well as interest thereon and nearly 10 years have passed and since then the defendants are utilising the money of the plaintiff without any rhyme and reason. 9. I have considered the submissions made before me and perused the material available on record. 10. In the present case, the questions, which require consideration, are as under : 1. Whether the plaintiff was ever intimated or given opportunity of hearing before the defendants made deductions? 2. Whether any objection was raised with regard to inferior quality of material supplied by the plaintiff to the defendants? 3. Whether the plaintiff is entitled for the amount due of the material supplied to the defendants? 4. Whether the plaintiff was ever intimated or given opportunity of hearing before the defendants made deductions? 2. Whether any objection was raised with regard to inferior quality of material supplied by the plaintiff to the defendants? 3. Whether the plaintiff is entitled for the amount due of the material supplied to the defendants? 4. Whether the learned trial Court has correctly disposed of the matter and what would be the rate of interest? 11. Now I propose to decide the questions framed by me. 12. Question No.1 & 2 are inter-linked, as such they are being disposed of together. 13. Though the defendants have in their written statements stated that the goods supplied by the plaintiff was not upto mark and the plaintiff was intimated and the Committee after examining the material came to the conclusion that it was not upto the specification but this fact has not been corroborated by the evidence adduced by the defendants. It shall be relevant here to quote Condition No.7 of Ex.2, which reads as under : HINDI MATTER 358408 14. Ex.1 is the tender. Ex.2, copy of which is Ex.2A, makes a condition that if the supply made by the plaintiff is not upto the satisfaction of the defendants then after proper opportunity to the plaintiff the District Collector could pass in order to reject the material. It is not in dispute that the entire material supplies under various orders in its totality has been used. The question is as to whether any objection was raised at the time when supplies were made that the material was not up to the mark and further as to whether any opportunity of hearing was given before passing an order of deduction of the amount, which was to be paid to the plaintiff on account of supply of material. The witnesses of the defendant have not stated the fact that before passing an order making deduction from the amount payable to the plaintiff, at any point of time any such opportunity was given. Though one of the witnesses has stated like that the plaintiff was intimated on telephone but the other witnesses of the defendants have completely denied this aspect. DW1 Shyamlal Gurjar has not stated anything in the statement-in-chief with regard to inferior quality of the material supplied by the plaintiff. Though one of the witnesses has stated like that the plaintiff was intimated on telephone but the other witnesses of the defendants have completely denied this aspect. DW1 Shyamlal Gurjar has not stated anything in the statement-in-chief with regard to inferior quality of the material supplied by the plaintiff. He has stated that the Committee Report was that the material supplied like roller Boards, chalks etc. were not upto the specification. In the cross-examination, he has stated that as per the orders, the entire material was supplied by the plaintiff but has stated that it was of lower quality. He has further stated that it is correct to say that for the material supplied an amount of Rs. 1,10,215/- was paid less. It has further been stated that the less payment was made for the reason that the material supplied was not upto the specifications. At page 3 of the cross examination, he has stated that orally he cannot say as to when the plaintiff was intimated about lower quality of the material. He further admitted that the samples and the material supplied have not been produced in the Court. It has been admitted that the sample was with them and it will be supplied later on in the Court. He has further stated that he does not know as to when the plaintiff was informed about lower quality of the material. This witness has tried to patch up the lacuna by saying that the plaintiff was intimated about lower quality of material supplied but the other witnesses have stated in clear terms that plaintiff was neither given any opportunity nor he was intimated about the lower quality of the material. DW2 Onkarmal, in the cross-examination has stated that it is correct that at the time of examining the sample and material, the plaintiff was not intimated. DW3 Ramkaran Omeriya, who has stated in the cross examination that it is correct that it was not his part of duty to call the plaintiff at the time of making inspection of the material supplied by the plaintiff. DW4 Smt. Sanehlata Panwar has stated in the cross-examination that it is correct to say that after the material was supplied by the plaintiff, when the samples were examined, the plaintiff was not present there and it was also not considered proper to call him. DW4 Smt. Sanehlata Panwar has stated in the cross-examination that it is correct to say that after the material was supplied by the plaintiff, when the samples were examined, the plaintiff was not present there and it was also not considered proper to call him. She is Member of the Committee, which has examined the samples. DW5 is Shyam Sunder Mandalia, the District Education Officer, Chittorgarh. In the cross-examination, he has stated that the samples were in his custody and he presented the samples before the Committee for inspection on 9.9.1996. In the cross-examination, he has accepted that though the earlier material supplied by the plaintiff was of lower quality even then again an order was placed second time with the plaintiff with the assumption that the plaintiff would supply the material as per specifications subsequently. He has admitted that it is correct to say that on 19.12.1996 or subsequently no notice was given to the plaintiff in writing regarding supply of lower quality material. The evidence of the plaintiff clearly states in the statements of PW1 Ramesh Vya and PW2 Vijay Kumar Vya that the plaintiff was never informed that the material supplied was of lower quality. 15. Now this takes me to consider Condition No.7. The condition reproduced above is clearly to the effect that it was the prerogative of the defendants to have rejected the material in case it was not found upto the mark. Condition No.7 further makes it dear that an order was required to be passed in relation to supply of lower quality material after opportunity of hearing having given to the plaintiff. When pointedly asked from the learned counsel for the appellant-defendants that what is the material to show that the plaintiff was intimated about the lower quality of material, it was only stated that one of the witnesses has stated that plaintiff was telephonically informed. 16. In view of above discussion, answer to Question No.1 & 2 is that the entire material which was required by the defendants as per the work orders was supplied to the defendants and before making deduction or at the time of supply of the material it was not objected that it was of lower quality and further before making deduction and passing order in relation to deduct the amount of the plaintiff, no opportunity of hearing was given as envisaged in Condition No.7 of Ex.2. The answer to question No.1 & 2 famed is accordingly. 17. While considering evidence in relation to Point No.1, it has been found that the entire material as per work order was received by the defendants as has been admitted by the witnesses of the defendants. In the above circumstance, there remains no iota of doubt that whatever work order was placed for the supply of material by the defendants was supplied in its totality. The file comprises of an order of the Collector (Literacy) dated 17.1.1997 to the effect that while making full and final payment, deductions were required to be made @ 20% and 30% of the cost of the material supplied. This order was passed on the basis of Committee's reports. Ex.A/1, A/3 & A/5 are the reports of the Committee. The reports nowhere mention that the plaintiff was ever intimated or given any opportunity of hearing before the order of deduction was made. It also does not appear from the Committee's reports and minutes that the plaintiff was given any notice for his presence at the time of inspection. The defendants have not produced any material to show as to how and in what manner they determined percentage of deduction from cost. A specific question was put to the learned counsel for the appellant-defendants that what is the criteria under which it has been ordered that the deduction for first supply should be @ 20% and in relation to second supply @ 30% of the cost but the learned counsel could not reply satisfactorily. Thus, it appears that there was no rule or procedure to reach to a conclusion regarding making deductions in relation to the material supplied. In the instant case, as discussed above, if the material was not upto the mark or to the specifications of the samples then at the first point of time plaintiff should have been intimated and the defendants were having right to reject the material but they neither intimated to the plaintiff regarding the material supplied being of lower quality and further gave no opportunity of hearing before passing any order of deduction of the amount due in relation to the articles supplied. Thus the answer to the Question No.3 is that plaintiff is entitled for the amount due against defendant-appellants. 18. Thus the answer to the Question No.3 is that plaintiff is entitled for the amount due against defendant-appellants. 18. The contention raised by the learned counsel for the appellants that the burden of issue No.1 & 3 was wrongly shifted on the defendants is also of no substance because had there been any such objection then it was required of the defendants to have moved before the Court but that has not been done. Be as it may, the crux of the matter is as to whether the material supplied under the contract was of lower quality and for that matter any opportunity of hearing was given to the plaintiff at any point of time and if that has not been done then in view of Condition No.7, the defendants were not entitled to deduct any sum from the amount which was due to the plaintiff on account of supply of the material as per contract work particularly when they received the same and utilised it without making any objection at any point of time. 19. Now the question, which arises for consideration is as to whether the trial Court while passing the decree has correctly determined the interest aspect in the present matter ? The trial Court while passing the decree has not correctly determined the interest aspect in the present matter. The trial Court has awarded interest @ 12% per annum which appears to be excessive and it requires to be reduced from 12% to 6% per annum for the reason that the Banks have reduced the rates of interest and ultimately the money, which shall be paid to the plaintiff in relation to interest is the public money. Therefore, in view of the facts and circumstances of the case, the rate of interest is reduced from 12% to 6%. The answer to question No.4 is, accordingly. 20. In the result, the appeal is partly allowed to the extent of awarding the rate of interest on the decretal amount which is reduced from 12% to 6%. The judgment and decree passed by the learned trial Court stands modified accordingly.Appeal partly allowed. *******