Regular Second Appeal No. 924 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 924 of 2010 Date of decision : March 02, 2010 The District Manager, Food Corporation of India ....Appellant versus M/s Nathu Ram Rishi Pal and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Jagjit Singh, Advocate for Mr. Chander Mohan Sharma, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant no. 3 District Manager of Food Corporation of India (FCI) has filed the instant second appeal. Respondent no. 1 M/s Nathu Ram Rishi Pal, Commission Agents filed suit against appellant and proforma respondents no. 2 to 5 i.e. FCI and its officers for recovery of Rs 1,81,290/- i.e. Rs 1,47,087.60 as principal amount and Rs 34,202.40 as interest thereon. The plaintiff's case is that the plaintiff supplied wheat to FCI on credit basis for Rs 24,29,362.60 in all. Out of it, the defendants has paid Rs 10,125/- as stitching charges of bags and also paid Rs 22,72,150/- on different occasions, leaving behind a sum of Rs 1,47,087.60 as the principal balance amount. The plaintiff claimed interest thereon for the pre suit period. The Regular Second Appeal No. 924 of 2010 -2- plaintiff sent notice dated 19.7.2001 to the defendants. In reply thereto, the defendants wrongly asserted that there was shortage of 110 quintals of wheat in the quantity of wheat supplied by the plaintiff. The defendants in the written statement admitted having purchased wheat from the plaintiff except 265 bags of wheat on 4.5.2000. The defendants also raised plea that the wheat supplied by the plaintiff was short by 110 quintals. Learned Civil Judge (Junior Division), Sunam vide judgment and decree dated 10.8.2006 held the plaintiff entitled to the principal amount claimed but by deducting the amount of 110 quintals of wheat which was claimed by the defendants to be short supply. Accordingly, suit was decreed for recovery of amount of 22 quintals 50 kilograms wheat at the rate of Rs 580/- per quintal along with interest thereon @ 6% per annum with effect from 4.5.2000, the date of supply of 265 bags (weighing 132 quintals 50 kilograms) till recovery. Plaintiff-respondent no. 1 only preferred appeal against the judgment and decree of the trial court. Learned District Judge, Sangrur vide judgment and decree dated 5.8.2009 allowed the appeal and modified the judgment and decree of the trial court and decreed the plaintiff's suit for recovery of Rs 1,47,087.60 with interest thereon @ 6% with effect from 19.7.2001 the date of the demand notice served by the plaintiff on the defendants, till recovery. Feeling aggrieved, defendant no. 3 has preferred the instant appeal. I have heard learned counsel for the appellant and perused the case file. The finding of the trial court that the plaintiff had also supplied Regular Second Appeal No. 924 of 2010 -3- 265 bags of wheat weighing 132.50 quintals to the defendants was not challenged by the defendants by filing first appeal. The said finding has, therefore, attained finality. The dispute remains regarding alleged shortage of 110 quintals of wheat supplied by the plaintiff to the defendants. Learned counsel for the appellant contended that defendants had sent letter dated 11.9.2000 to the plaintiff intimating the plaintiff about the short supply of the wheat by the plaintiff to the defendants. However, the plaintiff has denied having received any such letter. On the other hand, the plaintiff sent notice dated 19.7.2001 and in reply dated 10.8.2001 thereto, the defendants asserted that the plaintiff had supplied 110 quintals wheat less than the quantity alleged to be supplied. The wheat was supplied by plaintiff to defendants on 17.4.2000, 23.4.2000, 24.4.2000 and 28.4.2000 in which the shortage is alleged by the defendants. Last supply of 265 bags of wheat was on 4.5.2000. While accepting the delivery of the wheat, the defendants did not raise any objection regarding short supply of the quantity of wheat. Even if the defendants' version is accepted that they had sent letter dated 11.9.2000 intimating the plaintiff about short supply, it was after 4/5 months that the first intimation of alleged short supply of wheat was given by the defendants to the plaintiff. After the wheat had already entered the godowns of the defendants, plaintiff had no means to check and verify if the quantity of wheat supplied was short as alleged by the defendants. Consequently, the defendants unilaterally after 4/5 months could not have burdened the plaintiff with responsibility of alleged short supply of wheat when the defendants while accepting the delivery of wheat from the plaintiff Regular Second Appeal No. 924 of 2010 -4- did not raise any such objection. The defendants could have weighed the wheat when it was supplied by the plaintiff but the defendants could not have claimed alleged short supply of wheat after 4/5 months. There is no cogent evidence to substantiate the claim of the defendants that the wheat supplied by the plaintiff was short by 110 quintals. There is no infirmity or illegality in the finding of the lower appellate court to this effect. The said finding of fact is based of proper appreciation of evidence and cannot be said to be perverse or illegal in any manner. It is high-handedness of the defendants that they alleged short supply of wheat after several months when the plaintiff demanded his balance amount. The defendants cannot be permitted to do so. No question of law much less substantial question of law arises for determination in the instant second appeal. For the reasons aforesaid, the appeal is found to be without any merit and is accordingly dismissed in limine. A copy of this order be sent to Food Corporation of India (proforma respondent no. 2) so that remedial action may be taken by the concerned authorities to stop such mal-practices by officers of FCI so that the traders and farmers are not harassed un-necessarily. ( L.N. Mittal ) March 02, 2010 Judge 'tiwana'