RSA No.2919 of 1985. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2919 of 1985. Date of decision 16 .08.2010. M/s Jindal Steel Works and others ...... Appellants. versus M/s Mohan Lal Mehra and others ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Kabir Sarin, Advocate, for the appellant. Mr. O.P.Goel, Senior Advocate with Ms. Kanwaljit Kaur, Advocate, for the respondent. K.C.PURI, J. This is regular second appeal directed by plaintiff against the judgment dated 1.6.1985 passed by Shri G.S.Sandhu, District Judge, Sangrur vide which the appeal preferred by the defendants against the judgment dated 8.10.1984 passed by Shri D.K.Sarpal, Sub Judge Ist Class, Malerkotla was accepted. M/s Jindal Steel Works and others filed a suit for recovery of Rs.84,802-75ps. against the defendants on the ground that defendants firm purchased iron plates worth Rs.50,050/- on the basis of bill No.353 dated 4.2.1981 and worth Rs.47,775/- on the basis of bill No.354 dated 4.2.1981 from the plaintiff-firm and paid a sum of Rs.17,000/- on 23.7.1981 and Rs.4000/- on 1.1.1982 leaving a balance of Rs.76,825/- RSA No.2919 of 1985. 2 out of the price of the goods in question. Since the said amount was not paid and as such the plaintiffs are entitled to claim interest to the tune of Rs.7977-75ps by way of damages upto the date of filing the present suit and in this manner suit for recovery of Rs.84,802-75ps. was filed. Defendant Nos.3 to 5 did not appear in spite of service before the trial Court. However, defendant Nos.1, 2, 6, 7 and 8 filed written statement whereby they contested the suit of the plaintiffs on the ground that the suit is bad for misjoinder and nonjoinder of necessary parties, the suit is hit by the provisions of Order 6 Rule 2 of the Code of Civil Procedure and the plaintiff has no cause of action. On merits, the defendants denied that the firm of the plaintiffs is a registered firm under Indian Partnership Act and has also denied the receipt of iron plates. They, however, took the plea that Rs.25, 037/-, the details of which is reported in para No.3 of the written statement, was paid by them to the plaintiff firm as advance amount for the purchase of iron plates but the plaintiff firm did not supply the goods to them and as such the plaintiffs are liable to return the amount of Rs.25,037/- to them. The defendants also contested the suit on the ground that this Court has no jurisdiction to try the present suit. The plaintiffs filed replication in which they admitted the receipt of Rs.3000/- more in addition to the amount mentioned in the plaint. They have denied that Rs.25,037/- was paid to the defendants as advance money or that they are liable to re-pay the said amount. The learned trial Court framed the following issues :- RSA No.2919 of 1985. 3 1. Whether the plaintiff firm is a registered partnership concern and plaintiffs Nos.2 and 3 are its registered partners ?OPP 2. Whether the plaintiffs are entitled to get a sum of Rs.76, 825/- out of the price of the goods supplied to the defendants as alleged ?OPP 3. Whether the plaintiffs are entitled to any interest ? If so, at what rate and for what period ?OPP. 4. Whether the present suit is hit by the provisions of Order 6 Rule 2 CPC ?OPD. 5. Whether the present suit is bad for misjoinder and nonjoinder of parties ?OPD. 6. Whether the plaint is not properly verified ? If so, its effect ?OPD. 7. Whether the defendants had paid Rs.25,037/- to the plaintiffs as advance money as alleged in the written statement ?OPD. 8. Whether the plaintiffs have no cause of action ?OPD. 9. Relief. The trial Court returned the finding on issue Nos.1 and 2 in favour of the plaintiffs. Issue No.3 regarding interest on amount of Rs.7977-75ps as damages was decided against the plaintiffs. Issue Nos.4, 5, 6, 7 and 8 were decided against the defendants. Consequently, the suit of the plaintiffs for recovery of Rs.73,825/- was decreed and the defendants were also held liable to pay interest @ 6% per annum from the date of institution of the main suit i.e. from 4.3.1982 till realization. Feeling dissatisfied with the above-said judgment, the defendants filed first appeal. The First Appellate Court reversed the finding on issue RSA No.2919 of 1985. 4 No.2 whereas no other point was argued before the First Appellate Court, consequently, in view of finding on issue No.2 the appeal was accepted and the suit of the plaintiff was dismissed. Feeling dissatisfied with the judgment and decree passed by First Appellate Court dated 1.6.1985, the present regular second appeal has been preferred. The learned counsel for the appellants has submitted that the First Appellate Court has misread and misinterpreted the evidence on the file. The plaintiffs have produced on file the bill Nos.353 and 354 dated 4.2.1981 for a sum of Rs.50,050/- and Rs.47,775/- regarding supply of iron plates. Vijay Kumar (PW-1) has proved the fact that Octroi has been paid in respect of 110 quintal of iron plates vide receipt No.113 book No.4089 on 8.2.1981 and another Octroi has been paid in respect of 105 quintal of Pati Loha in respect of truck No. PUP 8585 paid by Sadhu Singh driver. Excise duty on these bills were paid as proved by Sham Sunder (PW-2). The original bills were handed over to the defendants. Devinder Goyal (PW-3) has proved the carbon copies of Ex.P-7 and P-8. PW-4 Suresh Sharma has proved the receipt of the goods vide receipt Ex.P-9. Document Expert Atul Kumar Singla (PW- 8) has also proved that signatures on Ex.P-9 are that of Kapil Mehra, partner of the firm of the defendants. Biltis were prepared and handed over to banks but the defendants have not got released those bilities. At the request of defendants the goods were supplied for sale and receipt Ex.P-9 proved the fact that one consignment of goods were received. A cheque of Rs.40,000/- was issued on 26.5.1981 by the defendant firm as RSA No.2919 of 1985. 5 a part payment of the amount but the cheque was dishonoured on 30.5.1981. The same was handed over to the defendant firm as they undertook to pay the amount in cash. Thereafter, Rs.17,000/- was paid vide DDR No.7719 dated 23.7.1981. Another sum of Rs.2000/- was paid vide cheque No.9117 dated 3.1.1982 and again Rs.2000/- was paid vide cheque No.489500 dated 28.1.1982. In this manner a sum of Rs.24,000/- were paid as part payment. The defendants have taken a stand that an amount of Rs.25037/- was payable by the plaintiffs to the defendants as advance money paid to the plaintiffs by the defendants firm. However, that issue has been decided against the defendants. No prudent person would give advance money to the other party in spite of the dishonour of the cheque. So, the trial Court has misinterpreted and has ignored the cogent evidence regarding the part payment of the amount. There was no enmity on the part of the plaintiffs against defendants. The evidence, which goes unrebutted has been ignored by the First Appellate Court on flimsy grounds and as such the judgment of the First Appellate Court suffers from perversity and is liable to be set aside. It is further submitted that First Appellate Court has given much importance to the fact that bills were issued on 4.2.1981 and goods were supplied on that day but as per evidence goods were supplied on 7.2.1981 and 11.2.1981. So, that being in variance the evidence cannot be looked into. It is submitted that First Appellate Court has misread the pleading of the plaintiff in this regard. In para No.1 of the plaint, it is pleaded that bills were issued on 4.2.1981 RSA No.2919 of 1985. 6 whereas regarding the supply of goods, para No.6 of the plaint is relevant in which it has been specifically mentioned that GP No.1 was paid on 7.2.1981 and in respect of bill No.353 and Gate Pass ( in short -GP) No.102-81 was paid on 10.2.1981. So, prayer has been made for the setting aside the judgment of the First Appellate Court and for restoring the judgment of trial Court and further prayer for the grant of interest @ 18% per annum from the date of suit till realization. In reply to the above stated submissions, learned counsel for the respondents has supported the judgment of the First Appellate Court. It is contended that the First Appellate Court has rightly observed that pleading are invariance with the supply of goods. The First Appellate Court has itself compared the signatures of Kapil Mehra on receipt Ex.P9 and reached to the conclusion that the same are not of Kapil Mehra. So, that being a finding of fact cannot be interfered in regular second appeal. It is submitted that even if the High Court came to the conclusion that two views are possible after appreciating the evidence. In that case the view taken by the First Appellate Court shall prevail over the view taken by the trial Court. The amount of Rs.24,000/- was paid as an advance for supply of the goods. The goods have not been supplied. The payment of the cheque of Rs.40,000/- was not paid as no amount was due. So, prayer has been made for dismissal of the appeal. From the statement made by both the sides, the following substantial question of law has arisen :- 1. Whether the First Appellate Court in its judgment and RSA No.2919 of 1985. 7 decree dated 1.6.1985 has misread and misinterpreted and ignored the evidence and on that account it suffers from perversity ? In this case, the trial Court after appraisal of the evidence reached to the conclusion that plaintiff has supplied the goods worth Rs.50,050/- vide bill No.353 and Rs.47,775/- vide bill No.354 and that defendant paid an amount of Rs.24,000/- to the plaintiff firm and after adjusting that amount, a decree for Rs.73,825/- was passed in favour of the plaintiffs and against the defendants. The stand taken by the defendants that amount of Rs.24,000/- was paid by the defendant to the plaintiff firm through the drafts and cheques as mentioned in para No.3 of the written statement as advance money, is not proved on the file but that amount was a part payment towards goods purchased through the above said bills. The First Appellate Court has reversed the finding on issue No.2 by misreading the pleadings of the plaintiff, misreading the evidence on the file and ignoring the cogent and convincing evidence and as such suffer from perversity. The plaintiff in para No.3 of the plaint has pleaded that defendant firm has purchased iron goods worth Rs.50,050/- through bill No.353 dated 4.2.1981 and steel goods worth Rs.47,077/- through bill No.354 dated 4.2.1981 and in this manner a sum of Rs.97,825/- worth goods were purchased through bills mentioned above. Regarding supply of the goods, the plaintiffs in paragraph- 6 of the plaint have pleaded that whenever the goods are to be taken from the plaintiff firm, the excise duty has to be paid and vide GP No.1 RSA No.2919 of 1985. 8 Excise Duty regarding bill No.353 was paid on 7.2.1981 whereas vide GP No.1 excise duty regarding bill No.354 was paid on 10.2.1981. The First Appellate Court has observed that the pleadings of the plaintiff is invariance with the evidence produced by the plaintiffs which fact is wrong on the face of it. It is nowhere pleaded that goods were actually supplied on 4.2.1981 vide above said bills. The plaintiffs have proved that Octroi was paid in respect of goods sent through two different trucks. The plaintiffs have also proved Excise Duty for taking out these goods was also paid by the plaintiffs-firm. The plaintiffs also proved the fact that vide Ex.P-9 goods were received by the defendant-firm. There was no enmity on the part of the plaintiffs to falsely file suit against the defendants. The evidence produced by the plaintiffs, which is of unassailable nature has not even been discussed by the First Appellate Court, referred to above. The plaintiffs, in this case, examined the Document Expert Atul Kumar Singla, who is well qualified Finger Print and Signature Expert and he has given a categorical opinion that receipt Ex.P-9 bears the signature of Kapil Mehra, partner of the defendants firm. But, the Ist Appellate Court has not accepted his report. The observations made by the First Appellate Court are that Court (Ist Appellate Court) compared the signatures of Kapil Mehra and the same are not of Kapil Mehra but that finding are incorrect. No doubt, the First Appellate Court could itself compare the signatures but the facts of the present case, does not warrant so. The First Appellate Court should have also considered the other evidence available on the file in this regard. Admittedly, a RSA No.2919 of 1985. 9 cheque for Rs.40,000/- was issued by the defendants-firm in favour of the plaintiffs on 26.5.1981. It is admitted case of the parties that draft of Rs.17,000/- was issued by the defendants-firm in favour of the plaintiffs on 23.7.1981. It is also admitted case of the parties that on 31.1.1982 an amount of Rs.2000/- and on 28.1.1982 another sum of Rs.2000/- and on 24.2.1982 a cheque of Rs.3000/- was paid by the defendants to the plaintiffs. The stand of the defendants is that the said amount was paid as advance money for the payment for the supply of goods in future. The trial Court did not accept that plea of that defendants. The First Appellate Court also did not accept that stand, although on different reasoning that the counter claim has not been filed. The fact remains that after the dishonouring of the cheques dated 26.5.1981 on 30.5.1981, the defendants-firm would be the last person to make the payment to the plaintiff if no amount would have been due. No sane person would pay the amount of advance in such a small instalments. The only and irresistible conclusion, which can be drawn in respect of the said payments by defendants to plaintiff and dishonour of cheque is that the goods valuing Rs.97,825/-, were supplied by plaintiff to defendant and cheque of Rs.40,000/- was issued by the defendants firm to the plaintiffs firm and the above said amount of Rs.24,000/- was paid by defendant to plaintiff in respect of part payment of the said goods. The First Appellate Court has not even touched this aspect of the case and in this manner misinterpreted the evidence and misread the pleadings and has totally ignored cogent evidence while accepting the appeal. RSA No.2919 of 1985. 10 Consequently, the question of law framed above stands answered in favour of plaintiff/appellant and the findings of the Appellate Court on issue no.2 stands set aside and that issue stands decided in favour of the plaintiffs. Consequently, the appeal is accepted and the judgment and decree sheet of the First Appellate Court dated 1.6.1985 stands set aside and the judgment and decree of the trial Court stands restored. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 16th, 2010 sv