1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.229 OF 1999 Chhatrapati Shahu Sahakari Sakhar Karkhana Ltd. ....Appellant V/s. The Kolhapur Sugar Mills Ltd. ....Respondent Mr.V.B. Rajure for the Appellant. Mr.S.S. Patwardhan for the Respondent. CORAM : B.H. MARLAPALLE & S.J. VAZIFDAR, JJ. DATE : 8TH MAY, 2009. P.C. : 1. This appeal filed under section 96 of the Code of Civil Procedure arises from the judgment and decree dated 29.12.1997 passed by the learned Civil Judge (Senior Division) Kolhapur thereby partly allowing Special Civil Suit No.37 of 1994. 2. The Appellant – Plaintiff had supplied molasses to the Respondent sugar mill and the dispute between the parties was on the rate payable per M.T. The Plaintiff contended that after the Government of India had rescinded the Molasses Control Order, 1961 as per the Government notification dated 10.6.1993 and with immediate effect the Defendant was required to pay the agreed 2 rate at Rs.1405/- per M.T. The period of supply of molasses under dispute was from 18.5.1993 to 22.6.1993 and the total quantity supplied was 1750.24 M.T. The Plaintiff claimed recovery of Rs. 25,66,347/- towards the principal amount and Rs.14,81,665/- towards the interest at the rate of 21% with effect from the date of outstanding till 31.12.1993. 3. The Defendant filed its written statement at Exhibit – 17 and contested the claim stating that the supplies of molasses including its price was controlled by the Molasses Control Order, 1961 and per M.T. price above the maximum amount fixed under the said order would be a nullity . It is further submitted that vide its letter dated 17.5.1993, it had agreed to pay Rs.770/- per M.T. for supply of molasses by the Plaintiff and it had never agreed to pay the price of Rs.1405/- per M.T. 4. In support of its claim, the Plaintiff examined Phulchand Shah, Managing Director – PW 1, Vasant Govind Kashid, Assistant Accounts Officer – PW 2. The Defendant examined Vijay Ghorpade, Accountant - DW 1, whereas Suresh Murti, Deputy Manager Material – DW 2 . 5. There was no dispute between the parties that as of 10.6.1993 the Government of India rescinded the Molasses Control Order, 1961 and that the supply price of molasses was controlled by the said order till then. In the said order, the supply price was Rs. 378/- per M.T. inclusive of all levis etc. For the period 18.5.1993 to 3 10.6.1993, there was no dispute that the supply price ought to be Rs.378/- per M.T. and the trial Court has rightly granted the said amount. The dispute before us is limited to the supplies made between 10.6.1993 to 22.6.1993 and the total quantity during this period came to 686.87 M.T. The trial Court has dismissed the claim at the higher rate for the reason that the Government of Maharashtra issued a circular for the first time on 22.6.1993 and therefore, Molasses Supply Order stood rescinded from the said date. It further held that any offer beyond Rs.378/- per M.T. was invalid in law and any such contract could not be enforced by the Court. 6. As per Mr.Patwardhan, the learned counsel for the Respondent – Defendant, though the Molasses Control Order, 1961 was rescinded by the Government of India by its notification dated 10.6.1993, the same was brought to the knowledge of the Defendant only after 22.6.1993 by the circular of the Government of Maharashtra dated 22.2.1993. Hence the price control for supplies of molasses or the obligation of the Defendant to pay the contractual price would arise only after 22.6.1993 and not for the earlier period. Mr.Patwardhan therefore submitted that the decree passed by the trial Court granting supply price at Rs.378/- per M.T. for the entire period need not be interfered with. In support of these contentions, Mr.Patwardhan placed reliance on the judgment of this Court in the case of Union of India v. GTC Industries Ltd., 1991 (56) 4 E.L.T. 733 (Bom.) thereby confirming the earlier decision of the single Judge in the very same case and reported in 1988(33) E.L.T. 83 (Bom.). Mr.Patwardhan has also relied upon the decision of the Supreme Court in the case of Collector of Central Excise v. New Tobacco Co. & Ors. (1998) 8 SCC 250. 7. We have gone through the plaint as well as the written statement filed by the Defendant and the oral depositions recored on behalf of the respective parties. Except the said Government circular dated 22.6.1993, there is no other evidence placed on record by the Defendant in respect of its claim that it got knowledge of the notification dated 10.6.1993 only after 22.6.1993. It is admitted that the said notification was gazetted on the very same day i.e. 10.6.1993. We must also note that there is no evidence placed on record to show that this gazette notification was not made available to the public till 22.6.1993 as was the case in the decisions relied upon by Mr.Patwardhan and referred to therein. Thus the bar of Rule 7 of the Molasses Control Order, 1961 would not be operative for any supplies made from 10.6.1993 onwards and therefore, the contractual price shall be applicable for these supplies. The reasonings stated by the trial Court solely on the ground of the circular issued by the Government of Maharashtra dated 22.6.1993 is grossly erroneous. More so when the Molasses Control Order, 1061 was rescinded by the Union of India. It is not open to the Government of Maharashtra to fix any other rate. We 5 therefore, hold that the Defendant is required to pay Rs.770/- per M.T. of Molasses supply during the period from 10.2.1993 to 22.6.1993. 8. At the same time, it is pertinent to note that there is no evidence about the supply price at Rs.1405/- per M.T. having been agreed to by the Defendant. On the other hand, as per the letter dated 17.5.1993 issued by the Defendant the agreed contractual rate appears to be Rs.770/- per M.T. and this rate will be operative only for the supplies between the period from 10.6.1993 to 22.6.1993 for a total quantity of 686 per M.T. 9. In the premises, the appeal succeeds partly and we direct that the rate for the supply of 686.870 M.Ts. of molasses for the period from 10.6.1993 to 22.6.1993 shall be at Rs.770/- per M.T. Interest shall be payable at the rate of 6% p.a. from 22.3.1993 till realization for the entire amount or any balance thereof. (S.J.VAZIFDAR, J.) (B.H.MARLAPALLE, J.)