JUDGMENT Arun Mishra, J. This appeal has been preferred by the defendants/appellants calling in question legality of the judgment and decree dt. 16-7-2003 passed by the Additional District Judge, Beohari, district Shahdol in Civil Suit No. 1-B/2002 decreeing the suit filed by the plaintiff for a sum of Rs, 3,24,991/- along with interest @ 6% per month on account of supply of slate pencil by the plaintiff to the defendants. The plaintiff, Rakesh Kumar Gupta filed a suit submitting that he was proprietor of M/s Amar Paper Mart. District Literacy Committee, Shahdol was formed by the State of Madhya Pradesh for the purpose of literacy. The Collector is the President of the District Literacy Committee. The Secretary of District Literacy Committee floated a tender for supply of slate pencil etc. Plaintiff submitted a tender. His tender was accepted. He had deposited earnest money of Rs. 16,000/- on 27-2-1997. Work order was issued on 4-3-1997 to supply 2 lakh packets of slate pencil @ Rs. 1.60 per packet. Pursuant thereto the plaintiff placed an order with M/s Satish & Co., Agra for supply of 2 lakh packets of slate pencil. First lot was received on 21-4-1997 of which payment of Rs. 93,600/- was made, after comparing the sample as it was found in order, remaining 1,40,500 packets of slate pencil were supplied on 11-6-1997 and 19-6-1997, after obtaining it from M/s Satish & Company, Agra, supply was made in the office of District Literacy Committee. The plaintiff prayed for payment of it at an early date. In spite of oral direction of the President, payment was not made. On 25-7-1997 plaintiff wrote a letter to defendants No. 2 and 3 to make payment. In spite of demand made as per the aforesaid letter, only on 7-8-1997 verification of the second and third lot with sample was done. It was not found to be of requisite standard and a letter was written on 10-9-1997 to receive back the slate pencils which were supplied. The sample was compared behind the back of the plaintiff. It was in violation of principles of natural justice. Without any verification the goods were kept for two months without any care in the rainy season. Slate pencil is a commodity adversely affected by sunlight as well as rain. In case due to keeping the slate pencil insecure their quality was adversely affected, the defendants were responsible for it. It was in violation of principles of natural justice. Without any verification the goods were kept for two months without any care in the rainy season. Slate pencil is a commodity adversely affected by sunlight as well as rain. In case due to keeping the slate pencil insecure their quality was adversely affected, the defendants were responsible for it. On 18-9-1997 the plaintiff wrote a letter to the defendant No. 2 and asked for re-verification of the supply made with the sample. It was not done nor the payment was made. Ultimately plaintiff requested the defendants to give back the slate pencil, lot was not given back, in spite of demand made by the plaintiff. A notice u/s 80, CPC was served on 11-1-2000. Defendants No. 2 and 3 refused to accept it. They did not send any reply thereto. Again a notice was issued on 31-3-2000 by registered post to defendants. Consequently, the suit was filed for recovering the costs of slate pencil of Rs. 2,26,464/- along with interest @ 1% per month of Rs. 81,527/- for the period 11-6-1997 to 19-6-1997, notice expenses of Rs. 1000/-and security amount of Rs. 16,000/-. The suit was instituted on 19-6-2000. The defendants in their written statement contended that the plaintiff was not the proprietor of M/s Amar Paper Mart. Plaintiff did not participate at any stage of contract, nor signed any documents. There was no previty of contract with the plaintiff. Omprakash Gupta had submitted a tender. Consequently, Rakesh Kumar Gupta did not have any right to file the suit. Order was given to M/s Amar Paper Mart. Beohari Court was not having any jurisdiction to entertain the suit. The slate pencils were supplied on 11-6-1997 and 19-6-1997. Supply was compared with the sample earlier given by the plaintiff. The goods supplied were not found comparable with the sample handed over to the defendants. Writing on the slate with pencil was not visible, apart from that the slate pencils supplied broke as if effort was made to write with it. Thus, it was not possible to write with the help of such slate pencils. The lot supplied was kept in proper condition and special security. There was no chance of it being adversely affected by sunlight or rain. Slate pencil was not a commodity to be adversely affected by it. It was not perishable immediately. Thus, it was not possible to write with the help of such slate pencils. The lot supplied was kept in proper condition and special security. There was no chance of it being adversely affected by sunlight or rain. Slate pencil was not a commodity to be adversely affected by it. It was not perishable immediately. The plaintiff did not take back the goods in spite of request made by the defendants. It was open for the plaintiff to collect the goods from store. Plaintiff failed to supply the goods as per the standard sample. As such plaintiff was not entitled to claim the amount of price and interest thereupon. 66,000 packets were supplied on 11-6-1997, 75,540 packets were supplied on 19-7-1997. Several letters were written on 10-9-1997, 12-5-1998, 23-10-1998, 30-3-1999 and 17-1-2000 to the plaintiff to collect back the non-standard slate pencils from the store, but, he failed to do so. By the last letter dt. 27-2-2001 it was informed that in case plaintiff failed to remove the goods, they shall not be kept in the store at the risk of the plaintiff. The trial Court has found that at the time when the supply was made it was found to be in order as such it was kept in godown of the defendant No. 3. The trial Court has relied upon the statement of the plaintiff and Vijay Singh Senger (PW-3) a member of District Literacy Committee. Evidence adduced by the defendant has been disbelieved. Decree has been passed for the aforesaid amount. Consequently, this appeal has been preferred. Shri Sudesh Verma, learned GA, appearing on behalf of the appellants no. 1 and 2 and Shri Rajendra Tiwari, Sr. counsel with Shri Udayan Tiwari on behalf of the appellant No. 3 submitted that the suit was not maintainable in the Court at Beohari. Secondly, plaintiff was not entitled to file the suit as there was no previty of contract with Rakesh Kumar Gupta. Tender was submitted by Omprakash Gupta, brother of Rakesh Kumar Gupta. Consequently the suit was filed by an incompetent person. Consequently, it ought to have been dismissed. Thirdly it was submitted that the goods supplied were not as per the standard sample handed over to the defendants. Consequently, plaintiff could not have filed the suit. He was asked to remove the goods as per letter dt. 10-9-1997, but he failed to do so. Consequently, it ought to have been dismissed. Thirdly it was submitted that the goods supplied were not as per the standard sample handed over to the defendants. Consequently, plaintiff could not have filed the suit. He was asked to remove the goods as per letter dt. 10-9-1997, but he failed to do so. Goods were kept in store in perfect condition. There was no adverse effect by sunlight nor there was any kind of seepage owing to rain, thus, the decision taken by the Committee was proper. Committee was competent to take decision with respect to quality of supply, not the storekeeper or any other individual, thus the finding recorded by the trial Court was not only perverse, but, was ex facie illegal. They have further relied upon various correspondence in this regard to be referred later. Per contra, Shri Ashok Lalwani, learned counsel appearing on behalf of the plaintiff/respondent submitted that the suit was rightly filed in the Court at Beohari. There was no failure of justice occasioned, as such this question is academic. Judgment and decree cannot be set aside until unless place of trial has resulted into failure of justice. He submitted that Omprakash Gupta was given authority (P/17) to act on behalf of M/s Amar Paper Mart by the plaintiff; Rakesh Kumar Gupta its proprietor, authority was given on 28-5-1988 to Omprakash Gupta to submit the tender, make the supply, collect the payment and to do other kind of works relating to the business of the plaintiff. Tender was submitted on behalf of M/s Amar Paper Mart by Omprakash Gupta, Work Order (P/2) was issued in favour of M/s Amar paper Mart. Tender (D/1) also indicates that it was submitted on behalf of M/s Amar Paper Mart by Omprakash Gupta for which he had full authority. Thus, it could not have been said that the plaintiff; Rakesh Kumar Gupta was not competent to file the suit. As Rakesh Kumar Gupta was the proprietor of M/s Amar Paper Mart, he had legal right to institute the suit for recovery of the amount. With respect to 3rd submission of the appellants, he submitted that the slate pencils were not kept properly. Supply of second and third lot was in fact made on 11-6-1997 and 19-6-1997. As Rakesh Kumar Gupta was the proprietor of M/s Amar Paper Mart, he had legal right to institute the suit for recovery of the amount. With respect to 3rd submission of the appellants, he submitted that the slate pencils were not kept properly. Supply of second and third lot was in fact made on 11-6-1997 and 19-6-1997. There was undue delay on the part of the defendants to compare the goods supplied with the standard sample handed over and in rainy season slate pencils gain moisture, thus, the supply could not have been compared with standard sample, it could not be said if some of the slate pencils were broken while attempt was made to write with it that lot supplied was not as per sample. He has further submitted that the goods were not preserved. There being absence of evidence indicating that due precaution was taken to preserve the slate pencils from sunlight or seepage, it being a perishable commodity, gains moisture, the burden was upon the defendants to prove that they had taken the ordinary and reasonable precaution enjoined upon them so as to preserve the quality of slate pencils, till the sample test was made by the committee. In all fairness, it was incumbent upon the committee to call the plaintiff at the time when supply made was compared with the sample, when letter was written on 18-9-1997 by defendant to compare the sample again it was not done. When the plaintiff wanted to receive back the supply made, he found that the goods were not in the same order in which they were supplied, as such the plaintiff could not have taken the available goods. Thus, decree has been rightly passed for the sum claimed by the plaintiff along with interest. No case for interference in this appeal, consequently was made out. We take up the central question, i.e., third submission for consideration, first two submissions, are to be dealt with later. The question is whether the supply made was upto the sample standard and whether the defendants have rejected the supply with ulterior motive due to demand for payment made by the plaintiff and the defendants failed to keep slate pencils in proper condition from exposing it from sunlight or moisture so as to preserve the same before the supply made was put to the sample test. With respect to dates of supply, there is no dispute that 66,000 packets were supplied on 11-6-1997, with respect to supply dt. 19-6-1997 whether it was in fact made on 19-6-1997 or 19-7-1997 has been disputed at bar. Plaintiff has claimed that the supply of 75,540 packets of slate pencils was made on 19-6-1997. However, when we consider the receipt (ExP/23), signed by Shri Prajapati, the store keeper on 19-7-1997. In view the clear mention of the date on receipt (P/23) that supply was received on 19-7-1997 of 1259 cartons of slate pencils, apparently the claim of the plaintiff that the supply was in fact received on 19-6-1997 was not acceptable, thus, we hold that the supply of 75,540 packets contained in 1259 cartons was in fact made on 19-7-1997. Rakesh Kumar Gupta (PW-1), Omprakash Gupta (PW-2) and V.S. Senger (PW-3) have not been able to explain properly why Shri Prajapati would put a different date on receipt of supply. Whatever that may be fact remains that the supply was made. With respect to first consignment supply in particular it was not disputed that it was found upto the standard sample by the same committee and payment was made. A purchase and finance committee was formed as per the defendants to take a decision as to the goods supplied being upto standard sample. It was the committee that was competent to take a decision, not an individual Shri Prajapati or Shri A.L. Rathiya. In our opinion, no sample test was done for ensuring the standard of supply made, at the time when goods were placed in store. As per the plaintiff goods were placed in the store of Shri V.S. Senger (PW-3) as store owned by him was hired by District Literacy Committee. Plaintiff has stated in paragraph No. 18 that the supplied goods were kept in the house of Shri V.S. Senger. Shri A.L. Rathia (DW-1), Destrict Adult Education officer, Shahdol has stated that the purchase and finance committee was constituted by the District Collector, consisting of District Treasury Officer Shahdol, Assistant Commissioner, Tribal Welfare, Shahdol, Project Officer, Rural Development Authority, Shahdol, District Adult Education Officer, Non-Government members; Ramlal Baiga, Shri Phunde Lal, Shri Vijay Singh, Senger and Shri Rajeshwar Udainia. Shri A.L. Rathia (DW-1), Destrict Adult Education officer, Shahdol has stated that the purchase and finance committee was constituted by the District Collector, consisting of District Treasury Officer Shahdol, Assistant Commissioner, Tribal Welfare, Shahdol, Project Officer, Rural Development Authority, Shahdol, District Adult Education Officer, Non-Government members; Ramlal Baiga, Shri Phunde Lal, Shri Vijay Singh, Senger and Shri Rajeshwar Udainia. When meeting was convened of purchase and finance committee to take a decision to assess the quality of the goods supplied, Committee in the meeting dt.7-8-1997 has considered the question and has taken a decision after testing the slate pencils of each of the packets with the standard sample supplied by plaintiff, it was found that the supplied slate pencil's writing was not visible and as soon as an attempt was made to write with slate pencils it broke. Thus, lot was not found to be as per the standard sample. Thus, it was decided to reject the supply as per the resolution Ex.D/1 (II) dt.7-8-1997. The trial Court has found that after the goods were inspected, they were kept in store and thereafter receipt was issued. Factually we are not in agreement with the said finding. Apart from that it was only the purchase and finance committee that was competent to decide about the quality. Earlier the said committee has decided with respect to first supply that it was upto the mark. There was no mala fide attributed in the plaint neither any evidence has been adduced. Nor the plaintiff has attributed any mala fide in his statement to the committee. When we consider the decision of the committee taken on 7-8-1997, not only about the slate pencils but Tin slate supplied by the plaintiff. Apart from that the decision was also taken as per resolution Ex. D/1 (II), with respect to slate pencil supplied by M/s Singhai Store, Shahdol. The Tin slates supplied by the plaintiff were found to be as per the standard. With respect to slate pencils decision indicates that when writing was made with the sample, it was not possible to write as it broke into pieces when attempt was made to write with it. Thus, it was not found to be as per the quality of standard sample supplied by the plaintiff. In quite objective manner a decision had been taken by the purchase committee. Purchase and Finance committee was competent to take a decision. Thus, it was not found to be as per the quality of standard sample supplied by the plaintiff. In quite objective manner a decision had been taken by the purchase committee. Purchase and Finance committee was competent to take a decision. It had decided about the quality in its meeting dt.7-8-1997. Merely by the fact that the supply was received and it was placed in godown of defendant No. 3, it could not have been said that the quality supplied was found upto the standard. Shri Ashok Lalwani has not pointed out any condition that before receiving the supply, the supply made was required to be compared with the standard sample. When we consider the statement of the plaintiff; Rakesh Kumar Gupta (PW-1) a bald statement was made by him in paragraph No. 6 that after due comparison with the sample the goods were kept in the godown. He has not stated who compared the lot supplied with the standard sample. He has stated that the sample given by Omprakash was kept in safe custody. He has further admitted in paragraph No. 16 that the committee compared the sample consisting of several members. But it was done on 7-8-1997 with respect to 2nd and 3rd lot of supply not before it as apparent from evidence on record. Statement of Vijay Singh Senger (PW-3) that A.L. Rathia compared the sample while it was still loaded in the truck, when the goods were in the truck with the sample. Statement of Vijay Singh Senger is unnatural and unworthy of credence for several reasons. Firstly; he was a member of purchase and finance committee which took the decision unanimously that the slate pencils supplied were below the standard sample. Secondly, he has not put any dissent in the resolution Ex. D/1 (II), thirdly he had developed a grudge against defendant No. 3 as the godown that was taken on hire was vacated in the year 1998, witness has deposed that in the year 2002, he was removed from the committee. Ordinarily there was no occasion for a member of the committee, that has taken a decision to depose against its resolution. He deposed not only against the defendant No. 3, but, appears to be quite interested in plaintiff. Ordinarily there was no occasion for a member of the committee, that has taken a decision to depose against its resolution. He deposed not only against the defendant No. 3, but, appears to be quite interested in plaintiff. Thus, the context in which he has stated in para 4 that Shri A.L. Rathia compared the supplied goods with the sample could not be said to be reliable, it could not be said to be the method of comparing with the sample. What mode was adopted to compare the sample has not been stated by Shri Vijay Singh Senger. Moreover Shri A.L. Rathia not competent to take decision alone with respect to quality of goods, it was the purchase and finance committee that was competent. Thus, we have no hesitation in rejecting the statement of Vijay Singh Senger. Thus, we reject the claim of the plaintiff that the slate pencil supplied vide 2nd and 3rd instalments were in fact compared with the standard sample at the time when they were kept in store. In fact no such comparison was done. Thus, the trial Court has committed a grave error while holding that the goods were received after comparison of the sample. This finding was not only perverse, but, quite illegal as it was within the domain of committee to take such a decision. It could not be pointed out that any other person had been authorized by the committee to make the comparison. In the absence thereof the main reason adopted by the trial Court for decreeing the suit falls down. Coming to the submission raised by Shri Ashok Lalwani that the goods were not kept safely by the defendants. They were exposed to sunlight and rain. This submission is also found to be flimsy and not at all supported by the evidence on record. Rakesh Kumar Gupta (PW-1) has stated that the goods supplied were kept in store. Store was in the house of Vijay Singh Senger (PW-3). Stand was taken by the defendants in their written statement that the goods were kept in the store room and were not amenable to damage by sunlight or rain. This statement in the written statement has been supported by A.L. Rathia (DW-1), District Adult Education Officer. In paragraph No. 4 he has deposed that the sample supplied was preserved. Stand was taken by the defendants in their written statement that the goods were kept in the store room and were not amenable to damage by sunlight or rain. This statement in the written statement has been supported by A.L. Rathia (DW-1), District Adult Education Officer. In paragraph No. 4 he has deposed that the sample supplied was preserved. He has denied the suggestion that there was any negligence committed by the defendants. He has also denied the suggestion that the goods were not kept properly. It was not a case set up by the plaintiff that the goods were kept in open or there was any seepage of water in the store room, it has not been substantiated by plaintiff or his witnesses, nor it has been suggested in the cross-examination of the witnesses examined on behalf of the defendants. There is no material on record to infer that in the store where slate pencils were kept was exposed to sunlight or rain. Shri V.S. Senger (PW-3) has also not stated that there was seepage in the store room located in his house where the goods were kept. Shri Omprakash Gupta (PW-2) has stated that he had requested the Secretary to make the payment at an early date as during the rainy season there was likelihood of goods being deteriorated. Slate pencil could not be said to be commodity to be deteriorated without negligence during the rainy season. It appears that this statement was made fully realizing that the second and third lot supplied was not upto the standard sample that is why the claim was made to make payment at an early date before sample test was made. It could not be said that there was undue delay on the part of the committee to compare the goods supplied with the sample. Supply was made on 11-6-1997 and 19-7-1997, meeting was held on 7-8-1997. For convening the meeting notice was required. Thus, there was no undue delay, in comparing the goods supplied with the sample which could have resulted in deterioration of the goods supplied. They were kept properly in the store room and we do not find any material on record so as to infer negligence on the part of the defendants in keeping the slate pencils till date they were subjected to quality test. They were kept properly in the store room and we do not find any material on record so as to infer negligence on the part of the defendants in keeping the slate pencils till date they were subjected to quality test. It was a condition that the payment was to be made only in case supply was upto the standard sample. Man may lie, but, circumstances do not is the cardinal principle of an evaluation of the evidence. First time when supply was made same committee has evaluated the supply made and found it upto the mark as stated by Omprakash Gupta (PW.2) in paragraph No. 13 of his deposition. In the absence of any malice having been suggested in the plaint and proved by the plaintiff, we find that the committee has taken a decision in quite objective manner. When sample slate pencil was found to be better it did not break, whereas slate pencil supplied broke in pieces as soon as an attempt was made to write with it and they were taken out of each packet for sample test. The plaintiff has averred in the plaint that he wrote a letter dt. 18-7-1997 for fresh comparison of slate pencil supplied with the sample, but, no such letter has been placed on record. When the trial Judge had put a question to Omprakash Gupta whether you have filed such a letter requesting for re-examination of the goods supplied, he has answered that no such letter has been placed on record, this is also yet another circumstances which speaks against the plaintiff. It is clear that he has failed to apply for re-comparison of the sample nor adduced any objective evidence to prove that the decision of the committee was incorrect and illegal. He has admitted that the defendants wrote several letters to him on 10-9-1997, 12-5-1998, 13-10-1998, 8-10-1999, 17-1-2000, he was asked to take back the supplied goods. The plaintiff submitted a letter (P-24) on 13-6-1999 after about two years that he was ready to receive back the goods in the same condition in which he had supplied. Thereafter notice were served before filing the suit. The plaintiff submitted a letter (P-24) on 13-6-1999 after about two years that he was ready to receive back the goods in the same condition in which he had supplied. Thereafter notice were served before filing the suit. Plaintiff has orally stated when he went to receive back the goods they were not found to be in the same condition in which they were supplied, as such he refused to take back, but, he has not submitted in any letter that when he went to collect the goods, they were not found to be in the same condition in which they were supplied. It was also not mentioned in the notice that he had gone to receive back the goods as per the letter sent by the defendants and then on inspection he did not found the slate pencils in the same condition in which they were supplied. Absence of the aforesaid material aspect in the notice indicates that the plaintiff had made no attempt to receive back the goods in spite of insistence of the defendants right from the beginning and defendant has rightly pointed out that goods were still lying in the store and it was open to the plaintiff to collect the lot. Plaintiff wanted to realize the money after supplying sub-standard goods. He knew it very well that the supply was not accepted way back in the year 1997 as communicated to him in writing on 10-9-1997. It was also a suggestion given in the cross-examination that K.K. Prabhakar (DW-2). Assistant Commissioner, Tribal Development, Hoshangabad in paragraph No. 8, that though the plaintiff was present in the office on the date on which decision was taken by purchase committee on 7-8-1997, but, he was not called in person when samples were compared by the committee. Thus, plaintiff very well knew the decision right from the beginning. The circumstances point out that the plaintiff was responsible for not receiving back the goods, it was open to the plaintiff to take back the goods and no responsibility could be fastened on the defendants due to failure of the plaintiff to receive back the sub-standard goods. It was apparent that the IInd and IIIrd lot of goods supplied were sub-standard. Coming to futile submission raised as to jurisdiction of the trial Court to try the suit raised by defendants. It was apparent that the IInd and IIIrd lot of goods supplied were sub-standard. Coming to futile submission raised as to jurisdiction of the trial Court to try the suit raised by defendants. Since it was not argued that there had been any failure of justice due to trial of the case before ADJ, Beohari, district Shahdol, we reject the submission in view of settled proposition of law that unless there had been failure of justice on such a ground no interference can be made by the appellate Court. Coming to the equally baseless submission that the plaintiff; Rakesh Kumar Gupta was not having privity of contract, hence, he was not competent to file the suit. We find that Shri Om Prakash Gupta was having authority (P/17), he had submitted tender on behalf of the proprietorship concern of his brother M/s Amar Paper Mart, as apparent from tender document (D/1), the work order (P/2) was also issued in favour of M/s Amar Paper Mart. In view of aforesaid, we hold plaintiff Shri Rakesh Kumar Gupta to be competent to file the suit. Resultantly, we find that the judgment and decree passed to be illegal and impermissible. We set aside the judgment and decree, dismiss the suit with costs of the defendants to be borne by the plaintiff throughout. Counsel's fee as per rates if certified. Final Result : Dismissed