THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.619 OF 1993 Dated.26-11-2010 Between: State of A.P. rep. by Secretary, Revenue Hyderabad and others …Appellants Vs. B.Sidda Reddy and another ..Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.619 OF 1993 JUDGMENT The defendants in O.S.No.44 of 1985 on the file of the Court of Subordinate Judge, Adoni are the appellants herein. The suit was filed for recovery of damages of Rs.50,000/- for non-supply of arrack to the plaintiff being a licensee. According to the case of the plaintiff, he is a contractor for sale of arrack for Adoni group of 115 shops commencing from 01-10-1983 on a monthly rental of Rs.9 lakhs. Defendant No.1 has to supply the arrack through the distillery and the lease period commences from 01-10-1983. The plaintiff has made every arrangement and the 1st defendant has fixed supply of 23,565 litres of arrack for the month of October, 1983 and the plaintiff remitted a sum of Rs.68,400/- on 28-09-1983 apart from sales tax. He made an indent for supply of 12,000 litres and the Excise Superintendent issued an order of indent on 29-09-1983 and deputed a constable to the 2nd defendant where distillery is located. The plaintiff has learnt that a private tanker bearing No.ATK 7555 reached Kodurupadu on 30-09- 1983 and the staff at distillery refused to supply the arrack and the plaintiff immediately contacted the Excise Superintendent, Kurnool and consequently all the 150 shops remained closed on 01-10-1983. After putting efforts, he received tanker at Adoni on 02-10-1983 at 6.00 A.M and consequently the plaintiff suffered a loss in business and claimed damages. The 3rd defendant filed a written statement contending that the suit is barred by time and the allegation of refusal to supply arrack is not correct. The excise contractor approached the distillery on 30-09-1983 and handed over the indent at 2.00 P.M and consequently there was no time to supply the arrack. Therefore, the fault is of the plaintiff. It was further claimed that according to Rule 16 of A.P. Excise Arrack Retail Sale Conditions of Licence Rules ( for short “the Rules), no damages or remission of State Government can be claimed in case of delayed supply or non-supply of arrack. The plaintiff has lifted all the quantities on 01-10-1983. Defendants 1 and 2 filed a written statement adopting the written statement of defendant No.3. The defendant No.4 also filed a written statement reiterating the contentions of the defendant No.3 and also pleading ignorance of the auction proceedings. The defendants received allotment of alcohol from Government only on 01-10-1983. Therefore, it could not be complied with. On the basis of the above pleadings, the following issues were framed for trial:- (1) Whether the plaintiff is entitled to a decree as prayed for? (2) To what relief? On behalf of plaintiff PW.1 is examined and marked Exs.A-1 to A-5. On behalf of the defendants DW.1 is examined. After considering the evidence on record, the lower court has granted a sum of Rs.35,000/- with interest @ 6% per annum and aggrieved by the said judgment, the present appeal is filed. Now the points that arise for consideration are:- (a) Whether the plaintiff is entitled for the suit claim and whether the amount granted by the lower court is legal and sustainable? (b) Whether the plaintiff is not entitled in view of Rule 16 of the Rules? (c) Whether the Judgment by the learned Senior Civil Judge is legal and sustainable? (d) To what relief? POINTS: There is no dispute about the fact that the plaintiff is a licensee commencing from 01-10-1983 on a monthly rental of Rs.9 lakhs. It is also not in dispute that the plaintiff was not supplied with arrack as on 01-10-1983 on which date he has to commence the business and consequently all 115 shops were closed. The blame is put on the plaintiff but not to defendants at the earliest point of time. As can be seen from the evidence of DW.3, the plaintiff is said to have gone to defendants on 30-09- 1983 at 2.00 P.M in spite of it, the same was not delivered. There is not of much evidence on the side of the defendant as to what is the negligence on the part of the plaintiff in not receiving the arrack. No witnesses on behalf of the defendant No.4 were examined to show that the plaintiff did not come to the defendants in time. Therefore, much of the arguments attributing the laches on the part of the plaintiff cannot be accepted. From the evidence on record, the lower court has accepted that there were no laches on the part of the plaintiff and there is no reason to come to a different conclusion and there is no other evidence. Learned counsel for the appellant contends that under Rule 16 of the Rules, there is no right for the licensee to get damages or remission and consequently the suit is not maintainable. On this aspect, the plaintiff relied upon a decisions reported in 1981(2) APLJ 226 and 1981 AWR 422; it was a case where a demand for rental for arrack, which was not supplied was made when the shop was closed illegally and the High Court found that the Government is bound to comply with the contractual obligations when the contractor is not able to do the business, the Government has no right to claim the rentals. It was also found that when there is no supply of the arrack by the Government, there can be no liability to pay the rentals. Learned counsel for the appellant contends that the said decision was rendered while dealing with a Writ under Article 226 of the Constitution of India. But the principle laid down in the decision is that when there is no supply of arrack, there is no liability to pay the rentals. If that is the principle, there is no reason as to why a party who has already paid the rentals was not entitled to the benefit of getting back the money, though the Rule 16 of the Rules may laid down that there shall be no claim for damages or remission when the law laid down by the High Court in the above decision that the Government is not entitled for the rentals. Consequently, the plaintiff at least is entitled for the reimbursement of the rental for the single day, though the suit as framed may be for damages, it can be treated as one for the same and the damages can be calculated as the day’s rental which was paid by the plaintiff without business and consequently the plaintiff will be entitled to the said amount. The mere fact that plaintiff has drawn the arrack subsequently is no ground since the payment for that day also made by the plaintiff. Therefore, taking into consideration the above fact and the principle as laid down in the above decisions, I feel that the plaintiff will be entitled to at least the refund of the one day rental if not as damages. The lower court has granted a sum of Rs.35,000/- as damages and if the monthly rent is Rs.9 lakhs for each day it comes to Rs.30,000/- and therefore the plaintiff will be entitled to that amount and not Rs.35,000/- as damages granted by the lower court. Accordingly, the decree of the lower court is modified and the plaintiff is found entitled to a sum of Rs.30,000/- as rental for the single day i.e.,. 01-10-1983 with future interest @ 6% p.a from the date of suit as granted by the lower court in stead of Rs.35,000/-. Accordingly, the Appeal Suit is allowed in part as indicated above. In the circumstances, there shall be no order as to costs. _______________________ N.R.L.NAGESWARA RAO,J 26-11-2010 TSNR