RSA No.705 of 2007 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.705 of 2007 Date of Decision: 18 th May, 2011 M/s. Vijay Pal Bhisham Singh ….Appellant Versus Food Corporation of India ….Respondent CORAM: - HON’BLE MR. JUSTICE L. N. MITTAL PRESENT: Mr. Kul Bhushan Sharma, Advocate for the appellant. Mr. H. P. Verma, Advocate for respondent. * * * * * L. N. Mittal, J. (Oral) Defendant M/s. Vijay Pal Bhisham Singh being successful in the trial court but partly unsuccessful in the lower appellate court has filed the instant second appeal. Respondent-plaintiff Food Corporation of India (FCI) filed suit against defendant-appellant for recovery of Rs.1,00,520.03. It is undisputed that defendant was transport contractor for wheat of FCI from Haryana to Uttar Pradesh and Rajasthan. Plaintiff’s case is that in the consignments transported by the defendant, shortage of 43 full bags of wheat and partial shortage of 267.47 quintals wheat was found. Plaintiff claimed amount of the said short quantity of wheat. -1- RSA No.705 of 2007 Defendant controverted the plaint averments and pleaded that there was no shortage of wheat. It was also pleaded that some shortages have been written off by District Manager of FCI. It was also alleged that consignment as a whole has not been taken into consideration by the FCI and if gains and losses are both taken into consideration, there was no shortage. Various other pleas were also raised. Learned Civil Judge (Junior Division), Palwal vide judgment and decree dated 17.09.1998 dismissed the plaintiff’s suit. However, first appeal preferred by the plaintiff has been allowed partly by Additional District Judge, Faridabad vide judgment and decree dated 14.09.2006 and thereby plaintiff’s suit has been decreed partly for recovery of money on account of shortage of 43 full bags of wheat and 56.02 quintals of wheat being partial shortage. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant contended that the alleged shortage was written off by the District Manager. However, it has been rightly held by the lower appellate court that in view of instructions dated 13.04.1970 issued by the plaintiff, only Regional Manager was competent to waive off the shortage for good reasons -2- RSA No.705 of 2007 and District Manager was not competent to do so. Learned counsel for the appellant, however, referred to instructions dated 02.08.1979 and 10.10.1979 issued by the plaintiff. However, according to these instructions, District Manager can waive off the shortage regarding transportation of foodgrains from rail heads to depot only and not regarding long distance transportation as in the instant case. On the contrary, instructions dated 13.04.1970 are very clear that only Regional Manager can waive off the shortage and District Manager has no power to do so. Lower appellate court has examined the evidence in minute detail and has come to conclusion that in addition to 43 full bags of wheat, there was shortage of 56.02 quintals wheat only as against plaintiff’s claim of shortage of 267.47 quintals of wheat. The said finding is based on documents furnished by both the parties. Gains in some consignments have also been taken into consideration by the lower appellate court to arrive at the said shortage. Learned counsel for the appellant also contended that shortage of 43 bags was satisfied because 43 bags were supplied later on by the defendant to the plaintiff. However, defendant had no right to supply the short bags of wheat later on as per tender conditions and agreement. For the reasons aforesaid, I find no merit in the instant second appeal. Lower appellate court has analyzed the evidence in -3- RSA No.705 of 2007 minute detail and rightly decreed the plaintiff’s suit partly to the extent of short quantity of wheat found to have been proved. The said finding is based on proper appreciation of evidence on record and is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of the evidence on record. Consequently, said finding does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed. (L. N. MITTAL) JUDGE 18th May, 2011 ‘raj’ -4-