IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.16 of 2001 Judgment reserved on: 13.5.2008 Date of decision: 22.5.2008 Yash Pal Singh Rana …….Appellant Vs. M/s. C.L.K. Fruit Company & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Ajay Kumar, Advocate. For the Respondents : Mr. Chandranarayana Singh, Advocate, for respondents No.1 and 2. M. Gulzar Rathor, Advocate, for respondent No.3. Kuldip Singh, Judge. The appellant who was plaintiff has come in appeal against judgment, decree dated 1.9.2000 passed by learned District Judge, Shimla in Civil Suit No.20-S/1 of 1996, decreeing the suit of the appellant for Rs.26,619/- with proportionate costs and future interest at the rate of 12% per annum from the date of institution of the suit to the date of payment of the aforesaid amount of money as against the claim of Rs.2,69,540.50 of the appellant. Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 2. The facts in brief are that the appellant had filed a suit for recovery of a sum of Rs.2,69,540.50 against the respondents on the grounds that the appellant had dispatched 1222 boxes of apples to respondent No.1 through its local agent respondent No.2 for sale on commission basis, during the months of August and September, 1993. As per the sale memos of respondent No.1 the boxes had been sold for Rs.1,13,793/- and out of that amount a sum of Rs.81,000/- was paid to the appellant. The appellant has also pleaded that infact the prices of the apples at the relevant time were much higher than shown in the sale memos and according to appellant the prices in sale memos were shown less by about Rs.70/- per box. Therefore, the appellant had claimed Rs.85,840/- on account of difference of price of 1222 boxes as shown in the sale memos and the prices which the said boxes were supposed to be fetched. 3. The appellant had entrusted 264 apple boxes on or around 2.10.93 to respondent No.3 who was working as a forwarding agent for onward transmission to M/s. N.S. Commission Agents but respondent No.3 sent those 264 apple boxes to respondent No.1 which were received by respondent No.1 on or around 4.10.93. The respondent No.1 had not given any sale invoices with respect to the said 264 apple boxes. The prevalent market rate at the relevant time was Rs.240 per box. The appellant has also pleaded that an amount of Rs.5197/- was illegally deducted by respondent No.1 from the sale proceeds of …3… 1222 apple boxes. According to the appellant the respondents have thus withheld principal amount of Rs.1,85,890/- of the appellant and on this amount the respondents are liable to pay interest at the rate of 15% per annum which comes to Rs.83630.50. It has been pleaded that the respondents are jointly and severally liable to pay the suit amount. 4. The appellant in the suit, in brief, has claimed Rs.5197/- on account of illegal deduction from sale proceeds by respondent No.1 of 1222 apple boxes, Rs.32,793/- balance amount after adjusting Rs. 81,000/- out of the sale proceed of 1122 apple boxes, Rs.85,540/- difference of amount on account of lower sale shown by respondent No.1of 1222 apple boxes at the rate of Rs.70/- per box, Rs.62,360/- price of 264 apple boxes at the rate of Rs.240/- per box, total amounting to Rs.1,85,890/-. On principal amount of Rs.1,85,890/- the appellant has claimed interest at the rate of 15% per annum which comes to Rs.83,650.50. The appellant has thus claimed total amount of Rs.2,69,540.50 (Rs.1,85,890/-+ Rs.83,650.50) from respondents. 5. The suit was contested by all the respondents. The respondents No.1 and 2 have filed a common written statement. They have admitted that the appellant had handed over 1222 apple boxes to them in between 28.8.93 to 9.9.93. They have also admitted the delivery of another 264 apple boxes from appellant. They have denied that sale memos of 1222 apple boxes were under price. The respondents No.1 and 2 have said …4… nothing about sale proceeds of 264 apple boxes. They have taken the plea that in addition to Rs.81,000/- the appellant was paid another amount of Rs.70,000/-. The respondent No.1 has claimed that Rs.27,571/- is due from the appellant. The deduction of Rs.5197/- from the sale proceed of 1222 apple boxes was justified. They have taken the preliminary objections of limitation, valuation, maintainability, mis-joinder of parties, mis- joinder of causes of action, estoppel and jurisdiction of the Court. The respondent No.3 in his written statement has pleaded that appellant himself had instructed that 264 apple boxes entrusted to him be sent to respondent No.1 for being sold on commission basis. He acted only as a forwarding agent and is not liable to pay any amount of 264 apple boxes to appellant. The respondent No.3 in his written statement has taken preliminary objections as raised by respondents No.1 & 2 in their written statement. 6. On the pleadings of the parties the following issues were framed:- 1. Whether the first consignment of apples boxes dispatched by the plaintiff to the defendant No.1 through defendant No.2 has been under priced by the defendant No.1 in the invoices and unauthorized illegal deduction of Rs.5197/- has been made from the sale proceeds? ……. OPP 2. If issue No.1 is proved, what was the value of 1222 boxes at the relevant time and to what amount the plaintiff is entitled? .... OPP 3. Whether the consignment of 264 apple boxes was entrusted to defendant No.3 by the plaintiff with …5… clear instructions to deliver the same to M/s. N.S. Commission Agent, Delhi for sale on commission basis? ….OPP 4. If issue No.3 is proved, whether the plaintiff has suffered any loss or damage on account of the violation of the said instructions by the defendant No.3 and is entitled to damages, if so, how much and from whom? …OPP 5. If issues No.3 and 4 are not proved, whether the plaintiff is entitled to recover the price of 264 apple boxes, which the defendant No.3 delivered to defendant No.1, if so what is the price of said apple boxes? …OPP 6. Whether the suit is within time? …OPP 7. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? ..OPD 8. Whether the court has territorial jurisdiction to try the suit? …OP Parties 9. Whether the suit is bad for mis-joinder of the parties and causes of action? …..OPD 10. Whether the plaintiff is estopped to file the suit by his acts, deeds ad conduct? ….OPD 11. Relief. The learned District Judge had decided issue No.1 partly in favour of the appellant, no finding was given on issue No.2 in view of finding on issue No.1. The issue No.3 was answered in negative and in view of finding on issue No.3, issue No,.4 was held to have become redundant. The issue No.5 was decided in favour of appellant by holding that he is entitled to a sum of Rs.24,583/- on account of the price of 264 apple boxes, …6… the issues No.6 and 8 were decided in affirmative, while issues No.7,9 and 10 were answered in negative. The learned District Judge ultimately passed a decree of Rs.26,619/- in favour of appellant and against respondent No.1 as per operative part of the impugned judgment. 7. I have heard Mr. Ajay Kumar, learned counsel for the appellant and Mr. C.N. Singh, learned counsel for respondents No.1 and 2, Mr. Gulzar Rathor, learned counsel for respondent No.3 and gone through the record. The learned counsel for the appellant has submitted that learned District Judge has erred in decreeing the suit of the appellant for a sum of Rs.26,619/- only as per operative part of the impugned judgment. He has submitted that in fact on the basis of material on record the appellant is entitled to Rs.2,69,540.50 jointly and severally from the respondents along with interest as claimed in the suit. The learned counsel for the respondents have supported the impugned judgment, decree. 8. The respondents No.1 and 2 have admitted in their written statement the delivery of 1222 apple boxes as well as another consignment of 264 apple boxes which were sent by appellant. According to appellant the sale proceeds of 1222 apple boxes disclosed to him was Rs.1,13,793/-. It is also the case of the appellant that invoices in respect of sale proceeds of 1222 apple boxes were under priced. PW-3 K.P. Singh, Prosecuting Inspector of Market Committee, Azadpur, Delhi has proved …7… Ex.PW-3/E, Ex.PW-3/J, Ex.PW-3/K, Ex.PW-3/M, Ex.PW-3/O and Ex.PW-3/BB of daily market information bulletins maintained by Agricultural Produce Market Committee, New Delhi, in order to show prevalent market prices of the apples during the relevant period when 1222 apple boxes were sold. The learned District Judge in para-7 under issue No.1 of the impugned judgment has discussed rates of apples mentioned in sales memos of appellant and rates of sales of apples recorded in daily market information bulletins maintained by Agricultural Market Committee, Azadpur, New Delhi. The learned District Judge after comparing the rates of sales memos of appellant with the rates recorded in bulletins has recorded a finding of fact that rates fetched by the apple boxes of the appellant and shown in the sales memos were more or less the same as were prevalent at the time of sales of apple boxes of the appellant. The correctness of this factual finding has not been disputed nor shown to be wrong by either side at the time of hearing. It has not been pointed out how the inference drawn by the learned District Judge from the material on record is wrong to the effect that the apple boxes of the appellant were sold more or less at the same prices which were prevalent in the market at the time of sales of apple boxes of the appellant. Therefore, the learned District Judge has rightly rejected the contention of the appellant that sale memos of the appellant’s apples boxes were under priced and infact the market price of the …8… apples of appellant at the time of sale was more at least Rs.70/- per box in comparison to rate shown in sale memos. 9. DW-3 Tilak Raj sole proprietor of respondent No.1 has stated that deduction was made from the sale memos Ex.P- 23 to Ex.P-41 on account of security but, basis of deductions on the ground of security have not been explained. The learned District Judge has rightly held that the deductions of Rs.5197/- made from the sale memos is illegal, unauthorized and appellant is entitled to receive the said amount. 10. The respondent No.3 in his statement as DW-1 has denied that he was instructed by appellant to send the consignment of 264 apples boxes to a commission agent other then respondent No.1. The challan pertaining to 264 apples boxes are Ex.P-19 to Ex.P-21. The appellant in his statement has admitted that copies of challans were given to him by respondent No.3, therefore, it can be safely presumed that the copies of challans Ex.P-19 to Ex.P-21 were also sent to appellant but he never raised objection that 264 apples boxes were sent to wrong commission agent. The appellant has not proved written instruction to respondent No.3 that 264 apple boxes be not sent to respondent No.1, rather send those boxes to M/s.N.S. Commission Agent. The respondents No.1 and 2 have stated nothing how they dealt with 264 apple boxes which were sent to them by appellant. In evidence they have tried to show that these apples boxes were kept in a cold store on instructions of appellant and …9… were sold through open auction on 3.1.1994. They have tendered in evidence three sale memos Ex.D-44 to Ex.D-46. As per these sale memos the appellant is entitled to a sum of Rs. 9636/- on account of sale proceeds of 264 apples boxes. This evidence of the respondents No.1 and 2 has been rightly disbelieved by learned District Judge. In the written statement the respondents No.1 & 2 have stated nothing how they dealt with 264 apples boxes but in evidence later on they have brought Ex.D-44 to Ex.D- 46, this is nothing but after thought . The learned District Judge has rightly recorded the finding that respondents No.1 and 2 had sold these 264 apples boxes in open market at the time when these boxes were received by them in October, 1993, when they would have fetched the price proportionate to the price which 1222 boxes had fetched in August, 1993. In these circumstances no fault can be found with the finding of the learned District Judge that appellant is entitled to a sum of Rs.24,583/- on account of price of 264 apples boxes. 11. In view of above discussion, the appellant is entitled to Rs.1,43,573/-(Rs.1,13,793/-+Rs.24,583/-+Rs.5,197/-) from respondent No.1 on account of sale proceeds of two consignments of apples boxes. The respondent No.1 has alleged that already an amount of Rs.1,51,000/- was paid to the appellant. It has been submitted that the payment of Rs.81,000/- has been admitted by appellant in the plaint. In addition to Rs.81,000/- another amount of Rs.70,000/- was also paid to the appellant. …10… The learned District Judge in para-20 of the impugned judgment has considered each payment paid by respondents to the appellant and credit of such payment has been given to the respondents. On analysis of the evidence it has been rightly held by learned District Judge that respondents have proved payment of Rs.1,24,000/- and only an amount of Rs.19,573/- on account of principal plus Rs.7046/- on account of interest at the rate of 12% per annum upto the date of institution of the suit and thereafter at the same rate on Rs.26619/- till realization is payable by the respondent No.1. The appellant is not entitled to higher rate of interest over and above what has been awarded to appellant in the impugned judgment. The appellant has failed to make out any case for interference. The learned District Judge after due appreciation of material on record has rightly held that appellant is only entitled to Rs.26,619/- upto the date of the institution of the suit and on this amount future interest at the rate of 12% per annum from the date of institution of the suit has also been awarded. 12. No other point was urged. 13. The result of the above discussion, appeal fails and is accordingly dismissed. No order as to costs. ( Kuldip Singh) Judge May 22, 2008 (sks)