G.M. Lodha, J.
1. The plaintiff has filed this appeal as the suit for refund of Rs. 34,179.50/- has been dismissed by the trial court.
2. The Civil Suit No. 2 of 1973 was filed by M/s Hazarilal & Company against the State of Rajasthan on 2-1-73, alleging that they are a partnership firm. The partners are Hazarilal, Brijlal and Dalip. The partnership has been registered under the Indian Partnership Act and possesses a certificate of registration. The three partners of the plaintiff firm took a Theka of the country liquor of Bolawali for the year 1969-70. The licence was issued in the name of the three partners. In accordance with the terms of the Theka, the partners deposited a security amount of Rs. 31,790/-and they were required to lift from the Government Godown a fixed quantity liquor after depositing every month a fixed amount. It was also agreed upon that the defendant State shall supply liquor on the tenth of each month at the rate of l/12th of the guarantee amount of issue price. The guarantee amount was Rs. 3,31,440. According to this contract the defendant State was required to supply liquor of Rs. 31790 every month. The partners lifted liquor of Rs. 347884.08 and only liquor of Rs. 33555.12 remained to be taken while an amount of Rs. 31790 and Rs. 2389.50 were lying deposit with the defendant State towards the price of liquor, excise duty and sales tax. The AEO of the defendant, however, failed to issue the requisite quantity of the liquor on the ground that they did not have the bottles for the purpose. The plaintiffs failed to lift the requisite amount of liquor on account of the failure of the concerned officers of the defendant State. At the end of the year the defendant State held that the plaintiffs failed to lift the minimum amount of liquor and adjusted a sum of Rs. 339.14 out of amount lying deposit with them
3. According to the Rajasthan Excise Act, 1950, Rajasthan Excise Rules, 1956, Rajasthan Issue and Sale Price of Country Liquors Rules, 1964, the defendant was not entitled to forfeit the deposit. The amount of guarantee is nothing but excise duty and this is leviable only on the purchase of the Liquor. The State, therefore, was not entitled to forfeit any deposit made under the guarantee system. The total deposits of the plaintiffs with the defendant State was to the tune of Rs. 34.179 50. The defendant State refused to refund this amount inspite of making a demand and a notice for the same. The plaintiffs, therefore, prayed that a decree of the same amount be given in favour of the plaintiffs and against the State.
4. The defendant State in reply alleged that the defendant State had given a Theka to Hazarilal, Brijlal and Dalip. The Theka was not to the partnership and, therefore, the firm was not entitled to bring the suit. The Excise Officers never refused to supply liquor and the failure was on the part of the plaintiffs themselves. The State was not liable to supply empty bottles to the licence holders. Therefore, the plaintiffs were not entitled to the refund of the deposit though the State agreed to refund the price of the liquor Rs. 2124 and the amount of Sales Tax Rs. 265.50 less Rs. 1765.92 of licence fee. The State also took an objection that the notice under Section 80, CPC, was not given by the licencees but by the firm and in the absence of notice by the partners the suit was not maintainable. Objections regarding the jurisdiction were also taken.
5. The plaintiffs, then, filed a replication that the State stocks sealed bottles of country liquor and the licence holders are required to take such sealed bottles. For 11 months, the State delivered the liquor in sealed bottles to the plaintiffs. The price of the bottles was included in the price of the liquor. On 27-3-70 and 28/3/70 the Excise Officer refused to supply liquor because the Distillery had no empty bottles.
6. The following issue were drawn on the pleadings of the parties:
(1) Whether firm Hazarilal and Company was a registered partnership firm and Hazariial, Brijlal and Dalip were its partners and whether the plaintiff firm was entitled to sue on the basis of the agreement in dispute ?
(2) Whether the defendant failed to supply liquor according to the conditions of the licence and what is its effect ?
(3) Whether the notice was in accordance with Section 80, CPC ?
(4) Whether the plaintiffs were entitled to the refund of the suit money ?
(5) Whether the jurisdiction of the Civil Court is barred and, therefore, the suit is not within the jurisdiction of this Court ?
(6) Relief.
7. All other issues were decided in favour of the plaintiff, but issue No. 2, which is a material issue, was decided against the plaintiff. While deciding issue No. 2, the trial court took the view that there was no liability of the defendants to supply the liquor in sealed bottles and there is nothing to show that the bottles were supplied by the defendants.
8. The second limb on which finding of the issue is based is that the plaintiff, according to conditions No. 1 and 2 of the licence, was required to deposit the instalments by the 10th day of the month and since that was not done, the defendants were not liable to supply the liquor on the basis of the deposit made on 28-3-70, i.e., three days before the expiry of the licence.
9. I have heard Mr. H.M. Parekh, learned counsel for the appellant and Mr. G.M. Bhandan, learned counsel for the State-defendants. Both the elementary facts of the case, which are not in dispute, may be noticed at the very out-set and clarified lot of confusion, which prevails in the judgment of the trial court.
10. The first and the foremost important feature of the case is that the amount, which is now claimed, is the security amount, which was deposited by the licence plaintiff and which, according to the terms of the licence was to be adjusted in the instalment of March. Here Clause 1 Sub-clause (K) of the licence Ex. A/(c) contains the following important conditions:
ykblsUl/kkjh dh mijksDr /kujkf'k dks ckjg cjkcj ekfld fd'rks es tek djkuk gksxk vkSj mldh izR;sd ekg dh fd'r vkxkeh ekg dh 10 rkjh[k rd jktdh; dks'k es tek djkuh gksxh A ml ekg es ykblsUl/kkjh }kjk fuxZe ewY; ds ?kVd ds :Ik es tek djkbZ xbZ vkcdkjh M+;wVh dh jde ykbZlsUl/kkjh }kjk fuxZe ewY; ds ?kVd ds :Ik es tek djkbZ xbZ vkcdkjh M~;wVh dh jde ykbZlsUl Qhl dh fd'r isVs lek;ksftr dh tkosxh A ;fn fu'pr rkjh[k rd fd'r dh jde tek ugh gksxh A rks ykblsUl nsus okys vf/kdkjh dks 'krZ ua0 2 ds vuqlkj dk;Zokgh djus dk vf/kdkj gksxk A ykblsUl/kkjh }kjk tekur ds :Ik es tek djkbZ xbZ jde ;fn og ykblsUl dh fdlh 'kRkZ ds mYys?ku es ;g ch fd'r ckdh jgus ds dkj.k tCr ugh gksxh A rks ykblsUl Qhl dh vfUre fd'r es ckn es ns nh tk;sxh A
11. The last line of this clause clearly mentions that unless there is earlier forfeiture, the security amount would be adjusted in the last instalment. A. comprehensive reading of this clause would show that the instalment should be paid by 10th of the next month and so far as the last instalment is concerned, the security would be adjusted.
12. In the present case, it is common ground that there was forfeiture of the security amount earlier and, therefore security amount was to be adjusted in the last month of March. Here it is relevant to note that the plaintiff, in addition to the security amount also deposited Rs 2124/ after the challan was approved by the Inspector of Excise Department Sangariya on 26-3-70 and the amount was deposited on 27th March 1970. There is an endorsement that, in addition to the amount Rs. 265/- were deposited in the Commercial Taxes Department as sales tax by a separate Form No. ST 10 and the sales tax challan is dated 26-3-70.
13. The challan contains an endorsement that liquor could not be issued because the bottles were not available in the warehouse.
14. The plaintiff has examined himself and stated that inspite of the effort, the defendants did not issue the liquor because there were no bottles in the warehouse or godown, as the case may be. This evidence has not been rebutted by the defendant.
15. It is a difficult case where the defendant has not produced a single witness either from the godown/warehouse or the office of the District Excise Officer or Excise Inspector and it is obvious that the department wanted not to rebut the evidence of the plaintiff for the reasons best known to them. The most surprising feature of the case is that although in the written statement it has been denied that the plaintiff wanted to take liquor and the defendant refused to give delivery, but when the plaintiff examined evidence and produced a challan having an endorsement not the semblance of the effort was made by the department to show that the statement of the plaintiff is incorrect or false and the challan bears an endorsement of an unauthorised person or is a forgery.
16. The impression gathered by this Court after reading the order-sheets is that the defendant did not deliberately produce evidence and what were the reasons given only be guessed, On of the reasons can be that the defendant was not in a position to rebut the case of the plaintiff. The other reason can be of oblique motive for which no finding can be given by this Court unless the inquiry is made by the department concerned.
17. Be that as it may, the basis fact remains that the department did not make any attempt to lead evidence in rebuttal, even the stock registers of the godown were not produced to show there was never any stock in the month of March either on the date when the challan was filed or is not before or after that. No effort has been made by the defendant to show that from any term or condition of the licence or by any circular letter or oral demand, the plaintiff was required to bring the bottles, which were to be sealed by the defendant in the godown or warehouse.
18. In the absence of this, I am inclined to accept the contention of Mr. Parekh that the month of March being the last month of the entire amount of the security instalment being there and even the in-significant amount having been deposited on 27th March, it was the duty of the defendants to supply the liquor or to give sufficient explanation for non-supply and for putting the blame or default responsibility on the plaintiff. Nothing of the sort has been done. The trial court's decision that by 10th of the month, the amount was to be deposited only shows the perfunctory and superficial nature of the case. The trial court forgot that this was a last month of amount and whole amount of the instalment was to be deposited unless it was shown that the amount has been forfeited earlier. The trial court also forgot that 10th of the month even for the other months used to mean the 10th of the next month. The trial court also failed to consider that when challan was presented, the excise department did not raise any objection that it is too late in the month and now no amount can be deposited. On the contrary, the Excise Inspector approved the deposit of the money by putting the seal and signatures on the challan and permitting the deposit of the balance of the amount of instalment.
19. I am convinced, after reading the statement of the plaintiff, perusal of the challan, endorsement behind it and terms and conditions of the-licence, that the finding of Issue No. 2 cannot be sustained and consequently the same is reversed. The finding of this judgment should not mean that this Court would give any general decision in all cases of excise that bottles should be supplied by the department.
20. The result of the above discussion is that the plaintiff's suit deserves to be decreed, so far as the principal amount is concerned.
21. I would not allow any interest to the plaintiff because the plaintiff has allowed the entire month to pass and went almost only 2/3 days earlier to the date of expiry of the contract.
22. The defendant should pay the amount of decree within a period of three months from today if it has not been paid so far, failing which, it will be required to pay interest at the rate of 6% from the date of default till the date of realisation. The plaintiff would get the costs of both the courts.