JUDGMENT : VIRENDRA KUMAR MATHUR, J. 1. This S.B. Civil First Appeal under section 96 of the Code of Civil Procedure has been filed against the judgment and decree dated 06.10.1989 passed by the learned District Judge, Banswara in Civil Original Suit No.13/1981. 2. Briefly stated, the appellant-plaintiff filed a suit against the respondent-defendant for recovery of Rs. 31.127.51p. on the ground that the appellant-plaintiff, by order dated 21.08.1979 ordered for supply of wooden sleepers as per the details given in the para No.4 of the plaint. The goods were required to be supplied at Banswara by rail or road. The payment was to be made as per the specification given in the order on the condition of supply of goods in a good condition at Banswara. The goods were to be dispatched after the inspection of the authorised representative of the appellant-plaintiff. The representative of the appellant-plaintiff, on 21.12.1979 to 29.12.1979, inspected the goods and instructed for dispatch of the goods on 29.12.1979. The details of goods inspected were given in para No.6 of the plaint. On 30.01.1980, the goods were dispatched through RR No.A878204, which were received by the appellant-plaintiff on 12.04.1980 and 18.04.1980 through railway out agency, Banswara. The appellant-plaintiff had to pay Rs. 400/- as under charges to the out agency. On receipt of the wooden sleepers, the same were inspected and counted again. The measurement of the wooden sleepers were found as per the specification and out of 200, only 55 sleepers were found to be as per the specification and 145 sleepers were not found to be as per the specification. In the sleepers, there were cracks, gathans, and they were infected by termites and there were no marks on the sleepers, which was put by the representative of the appellant-plaintiff on the goods inspected. The appellant-plaintiff informed the respondent-defendant vide letter dated 13.05.1980 about the rejection of 145 wooden sleepers, which were not found to be as per the specification and was asked to supply other fresh sleepers. But, the respondent-defendant did not comply with the terms of the agreement. The respondent-defendant received 90% of the cost amounting to Rs. 34,128/- + C.S.T. Rs. 1516.80p. totaling to Rs. 34,644.80p. The appellant-plaintiff has also to pay Rs. 250/- for handling charges and Rs. 400/- for under charges. Thus, the appellant-plaintiff had to pay total amount of Rs. 36294.80p. But, the respondent-defendant did not comply with the terms of the agreement. The respondent-defendant received 90% of the cost amounting to Rs. 34,128/- + C.S.T. Rs. 1516.80p. totaling to Rs. 34,644.80p. The appellant-plaintiff has also to pay Rs. 250/- for handling charges and Rs. 400/- for under charges. Thus, the appellant-plaintiff had to pay total amount of Rs. 36294.80p. It was also pleaded that out of the sleepers sent by the respondent-defendant, 55 sleepers were found to be as per the specification and the cost of which was Rs. 8,730.72p. + Rs. 349.23 as C.S.T. and Rs. 68.75p. for transportation totaling to Rs. 9148.70p. Thus, the appellant-plaintiff was entitled to recover the balance amount and claimed storage charges for defective sleepers amounting to Rs. 1809.73p. And loss of interest amounting to Rs. 2,171.68p., in total Rs. 31,127.51p. 3. The respondent-defendant filed written statement along with counter claim and admitted that the goods were supplied as per the specification after the inspection of goods by the representative of the appellant-plaintiff and stated that the representative of the appellant-plaintiff inspected the goods on 29.12.1979 and found the goods in good condition as per the specification and measured 200 sleepers and the goods were sent to the Railway Station by the representative of the appellant-plaintiff. The goods were not booked by the Railway, then the representative of the appellant-plaintiff instructed for sending the goods through goods transport. It was contended that it is wrong to say that 145 sleepers were not found to be as per the specification and cracks and gathans were there on goods and sleepers were infected by termites. The goods were supplied as per the specifications and all the goods were received by the appellant-plaintiff and paid 90% of the amount of goods. There was no hidden defect in the goods. 4. On the basis of the pleadings of the parties, issues were framed and evidence was recorded. After hearing both the parties, the learned trial court dismissed the suit of the appellant-plaintiff and allowed the counter claim of the respondent-defendant vide judgment and decree dated 06.10.1989. 5. Being aggrieved by the judgment and decree dated 06.10.1989 passed by the learned trial court, the appellant-plaintiff has preferred this appeal. 6. It was contended that the trial court has committed illegality in deciding the issue No.3 against the appellant-plaintiff. 5. Being aggrieved by the judgment and decree dated 06.10.1989 passed by the learned trial court, the appellant-plaintiff has preferred this appeal. 6. It was contended that the trial court has committed illegality in deciding the issue No.3 against the appellant-plaintiff. In this case, it is established on record that the respondent was bound to supply the goods as per specification and he was failed to supply full quantity of the goods as per specification. It was submitted that when the representative of the appellant-plaintiff went at Meerut to measure and mark the sleepers, he found the measurement of 200 sleepers as 790 CFT and it was directed to the respondent-defendant to dispatch the said sleepers but it so happened that those sleepers could not be dispatched through Railway at that time, therefore, the respondent-defendant sent the sleepers later on and when the sleepers were received at Banswara out agency and brought to the store of the appellant-plaintiff, on checking it was found that all the sleepers were not according to the specification and only 55 sleepers were found to be according to the specification. Remaining 145 sleepers were totally damaged and those sleepers were defective as there were cracks and gathans and the wood was found to be infected by termites. The defects came to the notice on checking by the departmental officer. It was found on checking that only 55 sleepers were as per the specification and it was measured as 181.890 CFT and remaining 145 sleepers, which were measuring 481.855 CFT, were damaged. The respondent-defendant did not send the total quantity as approved by the representative of the appellant-plaintiff because of the fact that the sleepers, which were approved, were not sent by the respondent-defendant. The learned trial court ought to have decreed the suit of the appellant-plaintiff. The learned court below has failed to appreciate the evidence on record properly. It was also contended that the learned trial court has also committed illegality in deciding the issue No.6 in favour of the respondent-defendant. 7. I have considered the arguments raised and also perused the record. 8. In the context of pleadings made in respect of issue No.3, perused the pleadings and evidence placed on record. 9. It was also contended that the learned trial court has also committed illegality in deciding the issue No.6 in favour of the respondent-defendant. 7. I have considered the arguments raised and also perused the record. 8. In the context of pleadings made in respect of issue No.3, perused the pleadings and evidence placed on record. 9. This issue was to the effect that whether 145 sleepers were not as per the specification, given under the agreement and only supplied only 663.745 CFT goods instead of 790 CFT goods? Virendra Kumar (PW-1), in his statement, stated that after the receipt of the goods, the defects were found and a letter (Ex.5) was issued in this respect, in which it was stated that 145 sleepers, which were measured as 481.855 CFT, were not as per the specification. In the cross-examination, he has admitted that he did not receive the delivery and inspected the goods after 18.04.1980. This witness failed to state that on what date, he inspected the goods after the date 18.04.1980 and he has also not stated whether 55 sleepers were found as per the specification was entered in the stock register or not and he does not have inspection report. 10. J.K. Purohit (PW-2) is the person who inspected the sleepers at the place of the respondent-defendant. He inspected and measured the wooden sleepers and prepared Ex.3 and Ex.4. He also stated that after the receipt of the goods at Banswara, he inspected the goods after about 2 months and found the goods not as per the specification and he has not found any mark on the goods, which he marked at the time of inspection and gave the report of inspection but the same was not placed on record. In the cross-examination, he has stated that he cannot say that whether the goods, which were shown to him at Banswara, were the same which were sent by the respondent-defendant were same. He has also admitted that the details of measurement given in Ex.6 were given by him. He failed to give the measurements of goods found defective nor was able to show the reason as to why he himself not measured. 11. Shri C.L. Arora (PW-3), in cross-examination, admitted that he himself has not measured the goods. He has also admitted that the details of measurement given in Ex.6 were given by him. He failed to give the measurements of goods found defective nor was able to show the reason as to why he himself not measured. 11. Shri C.L. Arora (PW-3), in cross-examination, admitted that he himself has not measured the goods. The representative of the appellant-plaintiff, Shri Purohit, inspected and measured the goods at the place of the respondent-defendant and prepared list Ex.A/6. Regarding Ex.A/6, this witness PW-3 stated that Shri Purohit has not given any details as mentioned in Ex.A/6 and measurements prepared by Shri Purohit in Ex.A/6 were not compared with the details given in Ex.4. 12. Om Prakash (PW-4), in his statement, stated that he was working under Shri Arora and under the orders of Shri Arora, he measured and inspected the sleepers received from the respondent-defendant. On measurement, 663.745 CFT was founds. 55 sleepers were found as per the specification and remaining 145 sleepers, measuring 481.855 CFT, were not in good condition. It was stated that on 13.05.1980, a report was given to the Assistant Engineer Shri Arora. 13. The appellant-plaintiff has not placed the report on record nor report prepared by Shri Purohit was placed on record. The appellant-plaintiff has not even produced the evidence of store incharge - Junior Engineer, who only could have explained as to in which store, the sleepers received from the respondent-defendant, were stored and the same were measured by the witness Om Prakash (PW-4). In cross-examination, Shri Om Prakash (PW-4) has stated that 55 sleepers were in good condition and 145 sleepers were found in bad condition but he could not give details of their sizes. This witness also could not state as to the numbers of sleepers in which cracks were found or gathans were found or the numbers of sleepers infected by termites. Without looking into the report, this witness was unable to state about the sizes of the goods ordered and the sizes of the goods received. From the evidence placed on record, this fact is not proved that out of the goods sent by the respondent-defendant and received by the appellant-plaintiff, the inspection and measurement was done by the authorized representative Shri Om Prakash (PW-4) and the appellant-plaintiff was unable to prove the defects in the goods supplied. 14. From the evidence placed on record, this fact is not proved that out of the goods sent by the respondent-defendant and received by the appellant-plaintiff, the inspection and measurement was done by the authorized representative Shri Om Prakash (PW-4) and the appellant-plaintiff was unable to prove the defects in the goods supplied. 14. The witness of the respondent-defendant Madan Mohan, in his statement, has categorically stated that the representative of appellant-plaintiff Shri Purohit on 29.12.1979, inspected the sleepers and prepared detailed list Ex.A/6 and gave letter Ex.3 and Ex.4 and the goods were sent through Ex.A/9, which were the same goods, the details of which have been given in Ex.3 and Ex.4. It was admitted that after the dispatch of the goods, Ex.5 was received, which was replied vide Ex.A/2. He stated that their goods were not infected by the termites nor was there any gathan or cracks and it was wrong to say that 145 sleepers were not as per the specification. In cross-examination, it was stated that he himself booked the goods and admitted that at the time of booking, the representative of the appellant-plaintiff was not present and the goods were not delivered at Meerut. 15. In the present case, undisputedly, the appellant-plaintiff has admitted the railway receipt and that it has received the goods at out agency and wherefrom the goods were taken to their store. It is also admitted position that after receiving the goods from the out agency, the goods were stored in the store of the appellant-plaintiff and after expiry of one month or more, it did not inform about the rejection of the goods. The letter Ex.5 was sent after a delay. In the present case, the goods were not inspected and measured at the out agency. In Ex.5 also, it was admitted that 55 sleepers were found to be as per the specification. It is also admitted position that there was only order for 200 sleepers and there is one agreement. Therefore, the appellant-plaintiff should have either to accept the goods as a whole or to reject the goods as a whole. The trial court has, after appreciating the evidence, has rightly observed that the appellant-plaintiff failed to prove that out of 200 sleepers, 145 sleepers were not as per the specification and found to be defective. Thus, the trial court has rightly decided the issue No.3 against the appellant-plaintiff. 16. The trial court has, after appreciating the evidence, has rightly observed that the appellant-plaintiff failed to prove that out of 200 sleepers, 145 sleepers were not as per the specification and found to be defective. Thus, the trial court has rightly decided the issue No.3 against the appellant-plaintiff. 16. So far as issue No.6 is concerned, it is admitted position that the respondent-defendant has not received remaining 10% amount and, therefore, the trial court has rightly decided the issue No.6 of counter claim in favour of the respondent-defendant. 17. In view of the above, there is no ground for interference with the impugned judgment and decree. The appeal is devoid of any merit and the same is hereby dismissed.