Tripura High Court

For vs Unknown on 11 July, 2022

                           HIGH COURT OF TRIPURA
                                 AGARTALA
                                   RFA 09 of 2020

For Appellant(s)                    : Ms. S. Debgupta, Adv.
                                      Mr. B. Paul, Adv.
For Respondent(s)                   : Mr. D. Bhattacharya, G.A.

Mr. S. Saha, Adv.

HON'BLE MR. JUSTICE T. AMARNATH GOUD

Order

11/07/2022

Heard Ms. S. Debgupta, learned counsel assisted by Mr. B. Paul,

learned counsel appearing for the appellant as well as Mr. D. Bhattacharya,

learned G.A. assisted by Mr. S. Saha, learned counsel appearing for the

respondents.

2. The plaintiff's case in a nut-shell is that the plaintiff is the publisher

of "AKSHAR" publication and distributor of National Book Trust, India. The

defendant issued a supply order for 1119 Nos. of sets of books for READING

CORNER for primary schools/sections of South Tripura under SSA to National Book

Trust, New Delhi during 2010-2011 vide No.F.2(28-56)EDN(S)SSA/09/2047 dated

21.01.2011. The plaintiff after getting the order from the defendant for supply of

NBT, Books for Reading Corner under SSA Project during 2010-11 Financial year

placed the same to NBT Authority. It is pleaded that the NBT Authority as was

having no sufficient stock of the order of the defendant at that moment planned

for fresh re-print of the total order of books and as such NBT Authority informed

the plaintiff that due to re-print the revised price of books would be little up. It is

pleaded that the NBT Authority also informed the plaintiff that the book would be

Rs.2,435/- each. It is pleaded that the plaintiff accordingly proposed the

defendant to accept the supply of NBT Books @ Rs.2435/- only which is the

sanction amount of the defendant for total 1119 copy each set comprising 74 titles

in place of 94 nos. titles. It is also pleaded that the plaintiff also clarified to the

defendant that price hike of books by NBT India ensued due to re-printing of

books as per their norms. The plaintiff also informed the defendant that the

plaintiff thoroughly examined the revised price of books and placed proposal

keeping in view the sanction amount of the defendant. It is also pleaded that the

plaintiff on 22.03.2011 informed the defendant of all these and requested the

defendant if the defendant would not agree the proposal of the plaintiff regarding

price hike of the books the defendant should inform the plaintiff in writing and

that if the defendant would not inform the plaintiff the plaintiff would presume

that the defendant has accepted his proposal and he would supply the books. It is

also pleaded that the plaintiff complied the order dated 21.01.2011 for supply of

NBT Book, related with reading corner and submitted the bill to the Inspector of

School office and raised a bill of Rs.24,52,000/- with the office of the defendant

under the bill no.AKH/NBT-2011/SSA/HD/S-UDP/14, dated 20.09.2011. It is

further pleaded that on 21.01.2012 the plaintiff received a part payment of

Rs.17,00,000/- vide cheque No.054877 on TGB, Udaipur Branch. Subsequently the

plaintiff requested the defendant to release the due amount of Rs.7,52,000/-

against supply of NBT, Book for Reading Corner during 2010-11. The plaintiff

waited for a long time for having the bill amount of Rs.7,52,000/-, which was

pending for part payment before the defendant, released, however, the defendant

did not pay the said amount to him no assigned any reason for the non-payment

of the same. It is also pleaded that suddenly on 29.11.2014 a letter was issued to

the plaintiff by the defendant whereby the plaintiff was informed that the

outstanding amount due to the plaintiff is Rs.54,368/- instead of Rs.7,52,000/-. It

is also pleaded that the plaintiff thereafter issued on 22.06.2015, 18.11.2015 &

20.11.2015 demand notice under section 80 of the CPC upon the defendants for

the early payment of his outstanding amount of Rs.7,52,000/- to which

defendants replied informing that the plaintiff's claim for an outstanding amount of

Rs.7,52,000/- only is quite unjustified, unlawful and unethical and this cannot be

entertained by the defendant at any cost due to breach of contract. It is also

informed by the defendants that they are ready to make payment of Rs.54,368/-

instead of Rs.7,52,000/-. The plaintiff pleaded further certain ancillary facts such

as about plaintiff having made a communication to the Additional State Project

Director who in turn on 21.08.2014 made a communication to the defendant and

requested the defendant to expedite payment of Rs.7,52,000/- to the plaintiff and

that again on 17.04.2015 Additional State Project Director requested the

defendant for payment of the outstanding amount to the plaintiff to which the

defendant not paying any heed.

3. Upon institution of the suit summons were issued upon the

defendants. The defendants having entered into appearance filed their joint

written statements contending inter alia that the instant suit of the plaintiff is not

maintainable in its present form and nature and also that it is not maintainable

either in law or facts and circumstances of the present case as well as that suit of

the plaintiff is bad for mis-joinder & non-joinder of necessary parties.

4. It is contended by the defendants that plaintiff has got no cause of

action as well as that the suit of the plaintiff barred by the law of limitation. It is

also contended that though the plaintiff served demand notice upon some of the

authority of the answering defendants but in fact but no notice was served to the

answering defendants as provided under section 80(1) CPC prior to the institution

of the present suit and hence the suit is not maintainable against the answering

defendants.

5. The vital limb of contention by the defendants as can be traced from

the written statement filed is that a supply order was issued to the Regional

Manager, NBT India Eastern Regional Office, Kolkata vide communication

No.F.2(28-56)-EDN(S)-SSA/09/2047 dated 20.01.2011 through their local

distributor Akshar Publication of Agartala. As pr the order, the supplying agency

had to supply to 1119 sets to book consisting of 94 titles in each set of books

consisting of 94 titles in each set for the reading corner. Total cost of the books

after allowing rebate was Rs.24,52,000/- only. Accordingly 1119 sets of books

were supplied to 5 nos. of Education Inspectorate of the then South District and a

bill amounting to Rs.24,52,000/- was raised before the District Project

Coordinator, SSA, South District on 20.09.2011. But it was noticed that supplier

supplied only 74 titles in each set instead of 94 sets of books violating the terms

and conditions of the order which was a breach of contract and hence a part

payment amounting to Rs.17,00,000/- out of actual cost of the books i.e.

Rs.17,54,368/- only was made to the supplier vide cheque No.054877 dated

21.01.2012. According to the defendants the plaintiff is not entitled to get any

further sum and that the claim of the plaintiff is not sustainable in law. According

to the defendants as per supply order dated 21.01.2011 the supplier i.e. NBT had

to supply the total 1119 sets of books consisting of 94 titles of books per set and

in between there can be no downsizing but they supplied only 74 books per and

thus thereby breached the contract. According to the defendants two

communication were made with NBT through their local agent vide No.F.2(28-

56)EDN(S)/SSA/09/1367 dated 19.10.2011 and No.F.2(28-56)-EDN(S)SSA/0506

dated 05.04.2013 to complete the short supply of books against the order but in

vain as they did not respond to their communications.

6. It is also contended that a communication with Sri Subhabrata Deb,

Pubisher, Akishar Publications was also made vide No.F.2(28-6)-

EDN(G)/SSA/2014/1304 dated 29.11.2014 to supply the balance number of books

against the supply order but Sri Deb did not reply to that letter, too. Accordingly

to the defendants the actual outstanding bill is Rs.54,368/- as per status of the

supply made and that the claim for an outstanding amount of Rs.7,52,000/- by the

plaintiff is highly untenable and the said claim of the plaintiff as aforesaid is liable

to be dismissed and rejected. According to the defendants the demand notice

served upon the defendants by the plaintiff was unjust and unlawful without any

basis and response was given to the plaintiff informing that the answering

defendants is not in a position to pay any outstanding amount to the tune of

Rs.7,52,000/- as claimed as the claim was not true and imaginary one. The

defendants admitted the fact about having received two communication from the

SSA Rajya Mission, Tripura requesting to expedite the payment of outstanding

balance of the plaintiff concerned. It is contended that in response to the first

letter dated 21.08.2014, their office wrote to Mr. Subhabrata Deb, with a copy to

the Additional State Project Director, SSA, to make his stand clear on the short

supply of books but he did not bother to revert back. In response to the second

letter dated 17.04.2015, letter was addressed to the Additional State Project

Director, SSA, Rajya Mission seeking suggestion for the next course of action and

permission to make payment to the party concerned but no reply was given as it

was unnecessary and the letters of the plaintiff are self explanatory and deserves

no answer from the answering defendants.

7. The trial court has framed the following issues :

ISSUES

i) Whether the suit is maintainable in its present form and nature ?

ii) Whether the plaintiff has cause of action for filing the instant suit ?

iii) Whether the suit of the plaintiff is barred by the Law of Limitation ?

iv) Whether the plaintiff is entitled to get an amount of Rs.7,52,000/- from the defendants for supplying the Books for Reading Corner for primary schools/Sections published by National Book Trust, India ?

v) Whether the plaintiff is entitled to get the decree as prayed for?

vi) To what other relief/reliefs parties are entitled ?

After hearing the learned counsel appearing for the parties and elaborate

discussion on the evidence, the trial court has dismissed the suit.

8. Ms. S. Debgupta, learned counsel appearing for the appellant has

submitted that the learned trial court has committed serious illegality while

passing the judgment and decree dated 29.02.2020 and 20.07.2020 inasmuch as

learned trial court dismissed the suit on the ground of limitation. The appellant

submitted his bill for Rs.7,52,000/-. On 29.11.2014 the respondents acknowledged

that the outstanding amount is not Rs.7,52,000/- but Rs.54,368/-. As such, the

limitation would start on and from 29.11.2014. The suit was filed on 15.03.2016

and was within the period of limitation.

9. Learned counsel appearing for the appellant has further submitted

that by the letter dated 22.03.2011 the respondent No.2 was informed regarding

price hike of books by National Book Trust due to reprint of books but the

respondent No.2 did not give any reply. Learned counsel has referred to the

following paragraph-36 from the judgment of the trial court which reads as under:

"36. In the instant case as it appears the plaintiff vide letter dated 22.03.2011(Exbt.2) informed the defendant No.2 about price hike of Books by NBT India due to reprint of books. As it appears the plaintiff by said letter dated 22.03.2011 has set a deadline, having included a clause there in the said letter dated 22.03.2011, for receipt of written reply from the ends of defendant no.2 and as well as for drawing presumption of acceptance of proposal of the plaintiff by the defendant in the event of non-receipt of written reply from the ends of said defendant."

10. The respondents have stated that the contention of the appellant

regarding information of enhancement of rate by the NBT is false. The office of

the respondent No.2 has never received any such communication. They have

further stated that out of the 94 sets ordered they have received only 74 sets and

as such, the due amount comes to Rs.54,368/-.

11. Having heard the learned counsel appearing for the parties and

considering the evidence on record, this court is of the view that the letter which

is relied by the appellant does not bare any acknowledgment of the defendants

with regard to the service of the letter. The judgment of Kerela High Court, as

relied by learned counsel for the appellant in Krishna Menon versus Cochin

Devaswom Board and Another reported in AIR 1963 Kerala 181 is not

applicable in the fact of the case. In so far as another judgment of Supreme Court