1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.802 OF 2008 Subhash s/o Madanlal Soni, R/o. Shivajinagar, Hingoli, District Hingoli. .. Appellant Versus The State of Maharashtra through Dairy Manager, Government Milk Scheme, Parbhani, Dist. Parbhani. .. Respondent ... Mr. P.N. Kalani, Advocate for the appellant. Mr. M.L. Dharashive, A.G.P. for respondent - State. ... CORAM : K.K. TATED, J. RESERVED ON : 23rd JUNE,2009 PRONOUNCED ON: 14th,JULY, 2009 PER COURT : 1. Heard learned Counsel for the appellant and learned A.G.P. for the respondent - State. 2. Original defendant preferred present Second Appeal against the judgment and decree dated 2 26-06-2008 passed by the Principal District Judge, Parbhani in R.C.A. No.71/2005 arising out of the judgment and decree dated 25-07-2005 passed by the Civil Judge, S.D. Parbhani in Special Civil Suit No. 134/1995. The appellate Court by judgment and decree dated 26-06-2008 confirmed the judgment and decree passed by the trial Court decreeing the plaintiff's claim to the extent of Rs. 52,673/- towards excess expenditure incurred by the plaintiff for transportation of milk which was breach of the agreement entered into between the appellant and respondent - plaintiff except curdling charges Rs.3572/-. 3. Facts which are no longer in dispute are that the plaintiff - respondent herein and the defendant - appellant herein had entered into an agreement Exhibit-50, whereby the appellant had agreed to transport milk on Parbhani-Purna- Pimpla Batiya route and back during the period from 01-02-1993 to 31-03-1994. Agreement 3 Exhibit - 50 was signed by Devising Jatasing Girase, Dairy Manager of Government Milk Scheme Parbhani and defendant. The plaintiff stopped transportation work on 28-04-1993 in breach of agreement between the parties and therefore, the plaintiff had to engage another agency for transportation of the milk for the remaining period and therein incurred extra expenses 56,245/-. Both the Courts have concurrently held that the plaintiff proved that the defendant in breach of terms of agreement stopped transportation before the expiry of the agreement period and therefore, the plaintiff had to engage another agency and to incur extra expenses which the plaintiff was entitled to recover from the defendant. Trial Court passed decree for Rs.56,245/- alongwith simple interest @6% p.a. from the date of filing of the suit till realisation of decretal amount. The Appellate Court partly decreed the suit for Rs. 52,673/- and claim for curdling charges Rs. 3572/- dismissed. 4 4. Along with the learned Counsel for the parties, I have gone through the evidence on record and find that there is no legal infirmity in the said concurrent findings of the two courts below and as such, challenge of the learned Counsel for the appellant to the said concurrent findings must fail. 5. Learned Counsel for the appellant contended that plaint was not signed by the authorised person as provided in Order XXVII of the Code of the Civil Procedure and as such, said suit should have been dismissed. According to him, Courts below erred in holding that P.W. 2 Devising Jatasing Girase, Manager of Government Milk Scheme Parbhani was the authorised person to sign the plaint. Rule 1 and 2 of Order XXVII of the Code of Civil Procedure Code read as under. "1. Suits by or against Government.- In any suit by or against (the Government), the 5 plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case. 2. Persons authorised to act for Government.- Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government." 6. The plaint is signed by Devising Jatansingh Girase, P.W. 2, who was Manager of Government Milk Scheme Parbhani. The agreement Exhibit -50 entered in to between the parties is signed by P.W. 2 Devising Jatasing Girase on behalf of State. The Dairy Development Commissioner by letter, issued by Desk Officer, Dairy Development Division, directed Manager P.W. 2 to file suit against the defendant. P.W.2 Devising Jatasing Girase had singed agreement Exhibit-50, 6 entered into between the parties and he was directed by the Dairy Development Corporation to file suit against the defendant. Therefore, both the Courts below have rightly held that P.W.2 Devising Jatasing Girase had authority to file suit against the defendant and for that purpose to sign the plaint. Here it is to be noted that Apex Court in the matter of United Bank of India vs. Naresh Kumar and others, reported in A.I.R. 1997 S.C. 3 held that procedural defects which do not got to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of procedural irregularity which is curable. Therefore, I find that the Courts below have rightly held that P.W. 2 Devising Jatasing Girase was directed to file 7 suit and impliedly for that purpose to sign the plaint. 7. The plaintiff filed Special Civil Suit No. 134/1995 for recovery of a sum of Rs.56,245/- with interest @ 12% p.a. from the date of breach of the contract till realisation of the amount from the defendant. The defendant contended that Exhibit-51 i. e. terms and conditions governing the contract was not binding on them because same was not signed by anybody on behalf of them. Therefore clause 10(b) of Exhibit-51 is not binding on them and suit filed by the plaintiff is not maintainable. Clause - 10(b) of Exhibit-51 reads as under. "(b) The tenderer shall be responsible to provide sufficient number of trucks with necessary sealing arrangements to the trucks in accordance with the daily programme or movement or instructions issued by the Dairy Development Commissioner, M.S. Bombay, Officer-in-charge of the respective Milk Scheme or an Officer on his behalf authorised to so act. If the tenderer fails to supply the requisite no.of 8 trucks as and when required for transport of milk according to the programme for the day given to him the Dairy Development Commissioner, M.S. Bombay or the Officer-in-Charge of respective Milk Scheme, or an the Officer on his behalf authorised to so act, shall at his entire discretion, without terminating the contract be at liberty to engage other trucks or give the transport work to other person at the risk and cost of tenderer, who shall be liable to make good to the Govt. all additional charges, expenses, costs or losses that ever be entitled to claim from the Govt. any benefit or gain resulting from entrustment of the work to another party. The decision of the Dairy Development Commissioner, M.S. Bombay in regard to such failure and liability of the tenderer shall be final and binding on the tenderer." 8. It is to be noted that it is specifically stated in Exhibit-50 that conditions mentioned in the contract and also terms and conditions will be binding on both the parties. Terms and conditions at Exhibit-51 are part and parcel of agreement Exhibit-50. Therefore, submissions of learned Counsel appearing on behalf of the 9 defendant that terms and conditions at Exhibit-51 are not binding on the defendant cannot be held good in law. 9. I see no legal infirmity in the concurrent findings of the two Courts below on this point. There is no other legal question, leave apart substantial question of law involved in this second appeal. Hence, present Second Appeal is dismissed. No order as to costs. ( K.K. TATED, J.) sut/JUL09/sa802.08