RSA No.959 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.959 of 2010 Date of decision : March 04, 2010 M/s Arora Karyana Store ....Appellant versus The Nakodar Cooperative Sugar Mills Ltd. and another ....Respondents CORAM: HON'BLE MR. JUSTICE L.N. MITTAL Present : Mr. Pankaj Katia, Advocate for Mr. Sanjiv Bansal, Advocate, for the appellant. *** L.N. MITTAL, J. (ORAL) Defendant No.1 M/s Arora Karyana Store has filed the instant Second Appeal, having remained unsuccessful in both the Courts below. Respondent No.1 The Nakodar Cooperative Sugar Mills Ltd. filed suit against the appellant and respondent No.2 Surinder Pal Singh for recovery of Rs.7,44,839.50, which included Rs.5,33,288.63 as principal amount and Rs.2,11,550.87 as interest thereon @ 17% per annum since 16.02.1998 till 31.03.2000 for pre suit period. The plaintiff alleged that defendant No.1 had been purchasing sugar from the plaintiff on credit and was also appointed as agent of the plaintiff. RSA No.959 of 2010 -2- The suit amount was due from defendant No.1 towards cost of sugar supplied by plaintiff. Defendant No.1 issued about four post dated cheques bearing dates 15.10.1995, 15.11.1995, 15.12.1995 and 15.01.1996 for Rs.75,000/- each towards outstanding amount of Rs.3 lacs. However, the cheques were dishonoured. Thereafter the matter was amicably settled on 07.06.1996 through agreement. Defendant No.1 acknowledged the due amount of Rs.4,26,198.61 payable along with interest @ 17% per annum and defendant No.2 stood guarantor for payment of the said amount. The amount was to be paid in 21 monthly installments, the first being of Rs.75,000/- and the last of Rs.21,503.63 and the remaining installments of Rs.25,000/- each, starting from 14.06.1996 till 15.02.1998. Post dated cheques for the same were issued by defendant No.1. First two cheques of Rs.75,000/- & Rs.25,000/- were honoured. As against third cheque of Rs.25,000/-, defendant No.2 paid the amount in cash and the cheque was returned to him. The remaining cheques were dishonoured. Defendant No.1 thus paid Rs.1,25,000/- only after 07.06.1996. Defendant No.1 also purchased sugar worth of Rs.69250/- on 13.08.1996 against cheque for the said amount but the said cheque was also dishonoured. Thus, the plaintiff alleged that the suit amount was due from the defendants at the time of filing of the suit. Defendant No.2 was proceeded against ex-parte in the trial Court. RSA No.959 of 2010 -3- Defendant No.1 contested the suit. It was denied that he purchased sugar on credit or that he issued the cheques for the same. Defendant admitted that he used to purchase sugar from the plaintiff and was also its agent but the plaintiff was not fair in its business. The cheques were obtained by the plaintiff as security and the same were blank cheques which have been misused by the plaintiff. Learned Addl. Civil Judge(Senior Division), Nakodar vide judgment and decree dated 12.04.2007 observed that some payments, as per account statement Annexure Z signed by counsel for both the parties, were made during pendency of the suit. The trial Court allowed interest @12 per annum and after adjustment of the amount paid during the pendency of the suit, found that a sum of Rs.8,10,000/- was due from the defendants to the plaintiff on the date of judgment i.e. by including interest up to date of judgment for almost 7 years after the filing of the suit. Accordingly, the suit was decreed for recovery of Rs.8,10,000/- with future interest @12% per annum from the date of decree till recovery. First appeal preferred by defendant No.1 has been dismissed by learned Addl. District Judge, Jalandhar vide judgment and decree dated 03.11.2009. Feeling aggrieved, defendant No.1 has preferred the instant second appeal. I have heard learned counsel for appellant and perused the case file. RSA No.959 of 2010 -4- Learned counsel for the appellant contended that defendant No.1 as agent of the plaintiff mill was entitled to commission on sugar purchased by defendant No.1, but the commission amount has not been adjusted. The contention cannot be accepted because no such plea was even raised in the written statement. There is also no evidence to depict as to how much commission amount was would due from plaintiff. On the other hand, defendants settled the account with the plaintiff on 07.06.1996 through a written agreement and the amount found due was mentioned in the agreement and was agreed to be paid. Consequently, it is apparent that the commission payable to the defendants No.1 stood adjusted when the accounts were settled. The matter does not rest here. Before the trial Court, account statement was filed. The said statement Annexure Z was signed by the counsel for both the parties, admitting the same as correct. It would again depict that the commission payable to defendant No.1 stood adjusted. In view thereof, the aforesaid contention cannot be accepted. Both the Courts below have properly appreciated the evidence and come to concurrent finding against the defendants. The said finding is not shown to be perverse or illegal in any manner. On the other hand, defendants settled the account on 07.06.1996 through written agreement and again account statement was filed in the trial Court and the said statement was signed by counsel for both the RSA No.959 of 2010 -5- parties, admitting the same as correct. The learned Courts below have decreed the suit as per the said account statement. There is no infirmity, much less illegality or perversity, in the judgments of the Courts below. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. (L.N. Mittal) March 04, 2010 Judge vcgarg