-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 1 OF 2011 M/s. Motiff Laboratories Pvt. Ltd., A Company Incorporated under the Companies Act, 1956 and having its registered office at 114, Bethora Industrial Estate, Margao, Goa. …... Appellant V e r s u s Smt. Netra Kelekar, w/o. Late Waman V. Keklekar, Aged 57 years, Indian National, R/o. Nilgiri Hills Apartments, Dhavali, Ponda, Goa, - Proprietress of M/s. Shri Mahalasa Plastics, having its Place of business at H. No. 937-1, Aqua Bhat, Kundaim, Goa. …... Respondent Shri S.D. Padiyar, Advocate for the Appellant. Shri S.D. Lotlikar, Senior Advocate with Ms. S. Pai Kir, Advocate for the Respondent. Coram :- F. M. REIS, J Date : 15 th September, 2011. ORAL JUDGMENT Heard Shri S.D. Padiyar, the learned Counsel for the Appellant and Shri S.D. Lotlikar, the learned Senior Counsel for the Respondent. 2. The above appeal challenges the judgments and decrees passed by the Courts below whereby the suit filed by the respondent was decreed and the Appellant was directed to pay to the respondent a sum of Rs.16,82,595/- along with interest thereon at the rate of 6% per annum as provided under Section 34 of the -2- Civil Procedure Code 3. The Respondent filed the suit on the ground that she is the proprietress of M/s. Mahalasa Plastics having their business premises at Aqua Bhat, Kundaim, Goa. Her business activities were looked after according to her by her husband and her son being authorised agents and constituted attorney and, as such, they were fully aware about the business transactions. According to the Respondent, in the year 2003 in the month of January, the business activities between the Respondent and the Appellant began whereby the Appellant placed a purchase order for the supply of 1,50,000 plastic containers with caps and plugs (75 gms.) for the purpose of packing the product known as “ABZORB”. It is further the contention of the Respondent that pursuant to the said Order, the Respondent supplied 1,00,000 containers with caps and plugs to the Appellant worth sum of Rs.35,67,963/-. The goods were duly accepted by the Appellant. Since the delivery of the said goods, a total sum of Rs. 18,85,368/- was paid to the Respondents on different dated leaving a balance of Rs.16,82,595/- which was to be paid on 11.01.2005. Despite of several requests, the said amount was not paid to the Respondent and ultimately, a notice came to be issued for the payment of the sum together with interest at the rate of 12 percent per annum amounting to Rs.21,21,520.61. Despite of the said notice, the amount was not paid nor any reply sent by the Appellant denying the said liability. As the Respondent had no other alternative, the suit came to be filed for the recovery of the amount payable to the Respondent. 4. On the other hand, it is the case of the Appellant that the Appellant does not owe any amount to the Respondent. It is further their case that though the -3- order was placed with the Respondent, the same was delivered with a suitable delay causing heavy financial losses to the Appellant. It is further their contention that the Respondent never completed their promises and as such requirements of their customers could not be met. As such, the Appellant disputed about any liability to the Respondent and, consequently, prayed that the suit be dismissed. 5. The learned Civil Judge, Senior Division, at Margao, by Judgment and Decree dated 26.02.2009, after recording of evidence and hearing the parties, came to the conclusion that the defence raised by the Appellant was not tenable and on the basis of the documentary evidence adduced by the Respondent, found that the Appellant was liable to pay a sum of Rs. 16,82,595/-. The learned Judge also found that the Respondent was entitled for interest at the rate of 6 percent per annum under the provisions of Section 34 of the Civil Procedure Code. Consequently, the suit came to be decreed directing the payment of the said sum of Rs.16,82,595/- together with interest at the rate of 6 percent per annum. Accordingly, the suit came to be rejected. Being aggrieved by the said Judgment, the Appellant preferred a Regular Civil Appeal no.204/2010, before the learned Addl. District Judge, South Goa, at Margao. By Judgment and Decree dated 13.08.2010, after reappreciating the evidence on record, the learned Judge came to the conclusion that the Appellant was liable to pay to the Respondent the said sum of Rs.16,82,595/- together with interest as awarded and found no infirmity in the findings of fact recorded by learned Trial Judge. The learned Appellate Court whilst coming to the said conclusion found that in the written statement, the Appellant had admitted that the amount due was Rs.16,82,595/- though claiming a sum of Rs.7,59,925/- was to be adjusted from the over said amount in view of a -4- mutual understanding. The learned Judge further found that such mutual understanding had not been established by the Appellant. The learned Judge further found that in the cross examination of the Appellant there were specific admissions to the effect that out of the total value of the goods supplied by the Respondent of Rs.35,67,963/-, the Appellant had paid an amount of Rs.18,85,368/- and that the balance amount of Rs.16,82,595/- was not paid. Further the learned Judge has also noted on the basis of the purchase orders,the invoices, the delivery challans and the correspondence on record fortifies the claim of the Respondent that the Appellant is liable to pay the said amount to the Respondent. Consequently, the Appeal preferred by the Appellant came to be rejected. 6. Shri Padiyar, the learned Counsel appearing for the appellant has assailed the impugned judgment essentially on the ground that the respondent had failed to establish by any evidence on record that the appellant was liable to pay to the respondent the said sum of Rs.16,82,595/- as claimed in the suit. The learned Counsel has taken me through the evidence of PW1 and his cross-examination and pointed out that the respondent has failed to produce income tax returns to establish as to whether such amount was due from the appellant. The learned Counsel has further submitted that the statement of accounts has also not been produced by the respondent to establish her claim and as such the learned Counsel pointed out that the Courts below have misappreciated the evidence on record and has come to the perverse conclusion to the effect that the appellant was liable to pay the said sum to the respondent. 7. On the other hand, Shri S. D. Lotlikar, the learned Senior Counsel -5- appearing for the respondent has supported the impugned judgment. The learned Senior Counsel has pointed out that there is no substantial question of law which arises in the present appeal as all the contentions raised by the learned Counsel appearing for the Appellant are questions of fact which cannot be questioned in the present Second Appeal. The learned Senior Counsel pointed out that on the basis of the evidence of the Appellant himself, the amount due to the Respondent has been duly established and, as such, the question of any interference in the impugned Judgments of the Courts below under Section 100 of the Civil Procedure Code does not arise at all. The learned Counsel as such submitted that the appeal deserves to be summarily rejected. 8. Having heard the learned Counsel and on perusal of the impugned judgment and the pleadings of the appellant, I find that the learned Judge has rightly considered the evidence on record and has come to the correct conclusion that the appellant is liable to pay the said amount to the respondent. The admission relied upon by the Courts below of Dw.1 by itself would be sufficient to establish that the Appellant is liable to pay the said sum of Rs.16,82,595/- to the Respondent. The learned Counsel appearing for the Appellant has not disputed that the Appellant had admitted the said aspect. The learned Judge, has also considered the further admission of said witness and non-examination of Mr. N. D. Sheldekar which are reflected in the impugned judgment at para 8. Apart form that, the learned Judge has also considered the documentary evidence adduced by the Respondent which is part of the record of the proceedings to come to the conclusion that the Appellant is liable to pay the said amount to the Respondent. Shri Padiyar, the learned Counsel was unable to point out any perversity in the said -6- findings of the Courts below. The learned Counsel has not pointed out that such findings have been arrived at by any misreading of the evidence on record. No infirmity has been shown in the findings of the Courts below which are on the basis of the oral and documentary evidence relied upon by the Respondent in the suit. The contentions of the learned Counsel appearing for the Appellant are essentially questions of fact which cannot be reappreciated by this Court under the provisions of Section 100 of the Civil Procedure Code. The main defence of the Appellant was the alleged existence of a mutual understanding between the parties about some adjustments to be made to arrive at the amount payable by the Appellant. But, however, both the Courts below have concurrently held that such evidence has not been established either by oral or any other evidence on record. The substantial question of law sought to be framed by the learned Counsel appearing for the Appellant, are purely questions of fact which cannot be considered in a Second Appeal. On the basis of the material on record and considering the Judgments of the Courts below, I find that no substantial question of law arises in the present Appeal under the provisions of Section 100 of CPC. 9. As such, there is no merit in the above appeal which stands summarily dismissed. F .M. REIS, J. arp/*