T.N. Singh, J.
1. This appeal is by defendants against whom a decree for a sum of Rs. 22,858.72 is passed in a suit claiming illegal deduction from bill amounts.
2. About the core fact that the plaintiff/respondent was a dealer in iron and steel goods and that some supplies were made by him to different departments of the State Government under orders made in that regard by the defendants/appellants, there is no dispute. However, contentions which Shri Roman, appearing for the defendants/ appellants has pressed are serious, substantial though, according to Shri Naik, those are technical. True, one of Shri Roman's contention is answered satisfactorily by Shri Naik on behalf of plaintiffs/respondents and about that, few words may be said in the beginning.
3. Admittedly, the suit, as framed and instituted, was in the name of 'M/s. Gwalior Iron and Steel Industries, Lohiya Bazar, Lashkar, Gwalior, Registered Partnership Firm, through Partner Rambabu Goyal'. Later, it transpired that there was no firm by that name as a registered partnership firm and plaint was amended when objection in that regard was taken and it is also not disputed that if the limitation is reckoned from the date of amendment, the suit would be time-barred. However, as Section 21(1), proviso, contemplates, if through mistake any plaintiff is added or substituted and in good faith that mistake was made, then as regards that plaintiff, the suit 'shall be deemed to have been instituted on any earlier date'. The fact that mistake has been committed has been accepted by the trial Court. That is established clearly on Ex. P/57. That is certified copy, issued from the office of the Registrar of Firms and Societies, Madhya Pradesh which shows that 'Gwalior Steel Sales' was a registered partnership firm and R. B. Goyal and S. B. Goyal were partners and it was registered on 23-9-1971 and it further disclosed that the said firm had Branch named, 'Gwalior Iron and Steel Industries, Lohiya Bazar, Gwalior' Shri Roman has, however, taken a different stand and has relied on Ramprasad Dagaduram, AIR 1967 SC 278 to submit that Section 22 is attracted, but on facts of that case, that provision was applied by their Lordships. In the instant case, there is no scope for application of that provision.
4. On facts proved, a case of misdescrip-tion it certainly was, attracting the ratio of Apex Court's decision in Jai Jai Ram Mano-harlal, AIR 1969 SC 1267. It has been held therein that it should not be considered to be a case of description of a non-existent person when description of the plaintiff by a firm-name in a suit under C.P.C. is not permitted because the suit would still be considered as instituted by individual partners of the business though the firm-name is cited. Evidently; in this case, 'Gwalior Steel Sales' was a registered firm and R. B. Goyal was its partner. Admittedly, also Gwalior Iron and Steel Industries was a Branch of the same firm. By no stretch of imagination, it could be said that on behalf of a non-existent person, the suit was instituted and it also could not be said that on behalf of an unregistered firm, the suit was instituted.
5. Now, other contentions of Shri Roman. His first and foremost contention which certainly cannot be treated as 'technical' is that the plaintiff pleaded nothing and proved nothing and so he could get nothing. Except that the plaintiff firm was a registered firm and that it was registered with 'Madhya Pradesh Laghu Ydyog Nigam, Bhopal' (defendant/ appellant No. 1) and that defendant/ appellant No. 2 was a Branch Office of the said Corporation and the plaintiff No. 1 dealing with the defendant, nothing is stated in clear, categorical and specific terms in regard to the contracts in question under which the supplies were made for which short payments, allegedly were received. Reference, in this connection, is required evidently to be made to Rule 1(e) and Rule 11(a) of Order 7, CPC as also to Order 6, Rules 2 and 8. The plaintiff, as per Rule 2, is required to state 'material facts' necessary for proving his claim so that in the case of a 'contract', the defendant may have an opportunity of denial contemplated under Rule 8 of Order 6 of that contract. Besides, as per Rule l(a), the plaint is required to contain 'the facts constituting the cause of action' and under Pule 11(a) of Order 7, a plaint is liable to be rejected when it does not disclose the cause of action. Povisions of Sections 4 and 5 of Sale of Goods Act, 1930, for short, the Act, are also to be juxtaposed at this stage. A distinction is made in Section 4 between 'a contract of sale' and 'an agreement to sell' and the formalities of the contract of sale are contemplated under Section 5. Reference may also be made in this context to Section 9 which contemplates that price in a contract of sale 'may be fixed by the contract or may be left to be fixed in manner thereby agreed or may be determined by the course of dealing between the parties'. Duties of the seller and buyer contemplated under Section 31 are also to be noticed and noted in this connection-- 'It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them, in accordance with the term of the contract of sale.'
6. In the longish plaint, paras 5 to 13 give merely detailed description of different bills in regard to claims made thereunder and of payment received on different dates and the position summed up in para 13 is that as slated in aforesaid paras 6 to 12, the plaintiff was entitled to recover Rs. 22,858.72 from defendants. The other statement made in the plaint is that on the bills submitted pursuant to the supply orders received and supply made, pursuant thereto, the defendants were entitled only to 'service charge' at the rate of 5% or 10%. They were not entitled to make any other deduction from the bills. How, under what terms and conditions, the different contracts of sale came into existence in respect of sale of different commodities for which bills were separately submitted, are not at all mentioned. Indeed, during trial also, no efforts was made by the plaintiff/respondent to prove any of the terms and conditions of the different contracts of sale, though admittedly on different dates, different supplies were made to different Government Departments.
7. On the other hand, during the course of trial, documents galore came from defendants/appellants, 'supply orders' proved as Ex. D/9 et. seq. In the written statement, plea was taken that prices charged for different commodities supplied at different times by the plaintiff in the bills submitted were inflated and that supplies were made to different Government departments from different branches/emporia of defendant No. 1 and different rates could not be paid to different supplies. Therefore, rates were standardised by Committee appointed for that purpose and correct and reasonable price for each item supplied and charged was paid to the plaintiff. D.W. 1 V.S. Parnerkar who was Manager of Gwalior Emporium of M.P. Laghu Udyog Nigam on 1-1-1980, gave evidence and he made a clear and categorical statement that before the supply orders were issued, there was no agreement between the parties. He stated that in his cross-examination and he stated further that quotations were invited by Gwalior Emporium, but that was done as per direction of Bhopal Head Office.
8, P.W. 1, R.B. Goyal, in his evidence, spoken nothing about the terms and conditions of the contracts, but merely proved the different bills (Exs. P/2 et. seq.) and he also proved letters written from Bhopal Head Office of the Corporation '(Exs. P/13(C) et. seq.) on different dates with which cheques were sent on account of supplies made under bills specified in the letters. Importantly, it is to be noted that in those letters, clearly and categorically, it was stated that 'in full payment' of the specified bills, noted in the letter, the cheques were sent. Nothing has come on record either as oral or as documentary evidence to suggest that at any time, any protest was made by the plaintiff firm that payments were not made according to prices 'fixed' or agreed between parties. It appears that in the supply orders (Exs. P/9 et. seq.) rates were specified and the plaintiff founded his claim on the fact that bills were submitted in accordance with those rates while D.W. 1 in his evidence stated categorically that as per condition No. 4 of the supply order, payments were made. He deposed also the fact that because the plaintiff had charged higher rate deduction was made in accordance with the decision of the Committee constituted for that purpose in the Head Office. True, he also stated that no hearing was given to the plaintiff when decision was taken by the Committee and indeed, those tenuous statements of the witness provide the feeble basis for trial Court's finding and conclusion resulting in the impugned decree being passed in plaintiffs favour.
9. This Court, in Kaluram Bhagwati Prasad, (1989) MPWN 136, has held that Section 5 of the Act is mandatory and plaintiff is required to mention all necessary particulars in the plaint of facts bearing on the original formation of the contract to be enforced for recovery of price of goods delivered or supplied. Having regard to the provisions of CPC aforecited and the language of Sections 4, 5, 9 and 31 of the Act, I have no hesitation to endorse that view. In regard to an enforceable contract of sale contemplated under Section 5, it is to be stated how an 'offer' was made to buy or sell goods and how that was accepted and what was the stipulation in regard to the price for the goods contracted to be sold. According to Section 9, in the contract, the 'price may be fixed', or it may be 'determined by the course of dealing between the parties'; while according to Section 31, the buyer is to pay for the goods delivered to him which he is bound to accept and payment has to be made 'in accordance with the terms of the contract of sale'. In the instant case, as per condition No. 4 of the supply order, issued by the Gwalior Emporium of the Corporation (defendant/appellant No. 1), bills submitted against supplies made were to be sent to Bhopal Head Office and from there, payments had to be made directly indeed, after receipt of payment from the department concerned to which supply is made. True, condition No. 3 spoke of payment of service charge of 10% to the emporium on the rates specified, but the crucial question is if any price for any of the different goods supplied under different bills and supply order, had at all been fixed and if that was done, in what 'manner'? Obviously the authority to make payment of the bill after delivery of the goods, was not the Gwalior Emporium, but Bhopal Head Office as per condition No. 4 and as such, what were the terms and conditions settled in that regard between the plaintiff firm and defendant Corporation were to be proved. If the rate specified in the supply orders were binding on the Corporation, that should have been pleaded and proved. But, that is not done. On| the other hand, when the defendant specifically pleaded in the joint written statement that the Corporation had reserved the right to 'fix' the price and accordingly, that was done by appointing a Committee for that purpose, nothing yet is proved by the plaintiff/firm to establish that the contract of sale did not envisage price of any item sold to be fixed in that manner. Obviously, it was overlooked that the plea was founded on Section 9 that the price could be determined by the course of dealing between parties.
10. It is beyond my comprehension how there can be scope for importing any principle of natural justice when any statutory provision occupies the field and due regard is not paid to that provision. According to Subsection (2) of Section 9, when the price is not determined as per Sub-section (1), 'buyer shall pay the seller the reasonable price' and it is also contemplated, 'what reasonable price is the question of fact dependent on the circumstances of each particular case'. In the instant case, it was open to the plaintiff/firm to plead and prove in the alternative, that reasonable price was not paid for the goods sold; but that has not been done. On the other hand, circumstances have been proved by the defendant Corporation in regard to plea in that regard set up in written statement. D.W. 1 has deposed that unreasonable price was charged by the plaintiff/firm and, therefore, a Committee was appointed to fix reasonable price and that was paid. Trial Court's finding and conclusion that plaintiff was entitled to hearing when that was done is obviously not acceptable in the facts and circumstances of the case. Because, plaintiff! failed to discharge its own duty in terms of Sections 4, 5 and 31 of the Act to plead and prove the origin and formation of the contract if that was one or even if there were different contracts in respect of different supplies, by indicating terms and conditions of those contracts about 'price' and other matters. When he failed to do that, the fault did lie at his door and not that of the defendant/ Corporation.
11. The other plea which the plaintiff/ firm made and which the trial Court accepted is also not valid and acceptable to sustain the impugned judgment and decree. Merely because in his evidence, D.W. 1 stated that as per bill submitted by the plaintiff/firm, the different departments of the State Government had made payment to the defendant Corporation, it could not be accepted that plaintiff firm had proved its case and established its claim to the payments which the defendant/ Corporation has received from the Government departments. The reason for my saying so is short and simple. Section 70, Contract Act, evidently has no application and it has never been the case of the plaintiff/ firm that there was any contract of supply of goods between the firm and the different Government departments and that the role of the defendant/Corporation or its branch/ emporium was that of an agent only. True, as per Section 216 of the Contract Act, the principal has to be restored the benefit which the agent has gained dealing on his own account in business of agency, but that is not the case here. Reference, in this connection, be made also to Gordon Woodroffe & Co.'s case, AIR 1967 SC 181 wherein test is indicated between a contract of sale and of an agency in similar circumstances. It was held that 'B', though alleged to be a del credere agent of 'A', he was not so and the contract was one of sale and not of agency. True, in that case, one of the tests indicated was the price being 'fixed' in the contract and in the instant case also, plaintiff/firm's case is of that being fixed in the supply orders, but whether that has been duly fixed in accordance with law has not been pleaded and proved. In this context, the decision in Kurapati Venkata Mallayya, AIR 1964 SC 818 deserves also to be referred to as the Court construed Section 9 to state the obvious that existence of a contract of sale was not dependent on prior fixation of price of the goods proposed to be sold.
12. From the discussion aforesaid, of pleading and evidence and of the law, stray findings though I have recorded here and there, in dealing Shri Roman's first and foremost contention, my conclusions are to be finally crystallised. Indeed, I am of the view, that contention itself is most valid and substantial and fatally non-suits the plaintiff/respondent. The suit essentially being for illegal deduction made by appellants/defendants from bills submitted by plaintiff/respondent for supply of goods, the cause of action for the suit essentially was non-payment of the price 'fixed' or agreed between the parties and payment of lesser price. It was incumbent, therefore, on the plaintiff to plead and prove all relevant material fact's in terms of Sections 4, 5, 9 and 31 of the Act in respect of the cause of action for which the suit was instituted. On the other hand, in the plaint, reference even to Supply Orders (which defendant/appellants proved in the course of trial) appears to have been deliberately and designedly avoided. To succeed, the plaintiff was required to plead and prove that the rate specified in the Supply Orders were duly 'fixed' and that was done in a manner which was binding on defendant No. 1, namely, the Corporation, or, for that matter, the Head Office despite the same being issued by the defendant No. 2, namely, the Emporium. Those were material facts of the contract of sale to enforce which the suit was filed on the footing evidently that one of the alleged terms of the contract of sale fixing the price for the goods sold had been breached by the defendant/appellants. As D.W. 1 deposed that quotations were invited by the Emporium under instructions of Bhopal Head Office and that evidence has remained uncontroverted, the onus lay evidently on the plaintiff/respondent to establish the contrary position clearly, categorically and affirmatively by pleading and proving that the Gwalior Emporium had either called the quotations at its own initiative and it had the duty and authority to fix the price accepting the quotations or that the quotations were duly approved by the Bhopal Head Office and the price was duly 'fixed' by Bhopal Head Office and was binding on both defendants/appellants. I am constrained, therefore, to hold that plaintiff neither pleaded nor proved the essential ingredients of the contract in accordance with the different provisions of the Act to prove his entitlement to any relief in the suit. On that ground itself, in my view, the suit is liable to be dismissed.
13. True, it was faintly suggested also by Shri Roman that the suit could not be instituted at Gwalior as the contract between the parties was made at Bhopal and in that connection, he cited Bhagwandas, AIR 1966 SC 543, but it is not necessary at all to deal with that contention.
14. As I have taken the view that the suit ought to have been dismissed and accordingly the appeal is to be allowed, I have no hesitation to hold that the cross-objection must fail. Because interest claimed was denied by trial Court, plaintiff/respondent has filed cross-objection in that regard and in that connection, Shri Naik cited State of Madhya Pradesh v. Nathabhai Desaibhai, AIR 1972 SC 1545 and Pilloo Dhunji Shaw, AIR 1970 SC 1201, but it is not necessary to deal with those decisions.
15. In the result, the appeal succeeds and is allowed. The cross-objection fails and is dismissed. However, in the facts and circumstances of the case, I make no order as to costs.