HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 270 of 2000 Decided on: 25.8.2010 Jai Chand ………Appellant/plaintiff. Versus The Kateri F.G. Cooperative Marketing and Processing Society Ltd. ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Romesh Verma, Advocate. For the respondent: Mr.Ajay Kumar, Advocate. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellants under Section 100 of the CPC against the judgment and decree, dated 31.3.2000, passed by the learned District Judge, Kinnaur at Rampur Bushahr, vide which he set aside the judgment and decree passed by the learned Sub Judge Ist Class, Rampur, dated 16.12.1998, decreeing the suit of the plaintiff for recovery of Rs.42,420/- alongwith costs and interest. 2. Briefly stated, the facts of the case are that the appellant, hereinafter after referred to as the plaintiff, filed a suit for recovery of Rs.55,000/-. The plaintiff alleged that he is an apple orchardist and also purchases apples from other growers and send them to the market through the defendant Society. The plaintiff ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - alleged that in the year 1996, he sent apple cases through defendant Society. The details of the amounts were mentioned in the plaint and it was alleged that he had sent apples worth Rs.63,205/- vide bills, out of which the defendant only paid Rs.14,000/- and also adjusted certain amounts. Thus, a sum of Rs.52,543/- remained to be paid by the defendant Society to the plaintiff for the apples sent through the Society. 3. The defendant Society contested the suit. It took up the plea that the plaintiff, in the year 1996, had purchased standing apple crop of one Sadh Ram, who had sold his apple crop to the plaintiff. The said Sadh Ram was supplied packing material by the defendant Society on credit amounting to Rs.42,420/-. The said Sadh Ram also informed the defendant Society, vide his letter dated 11.8.1996, about the sale of his apple crop to the plaintiff and also informed that the packing material so taken by him was handed over to the plaintiff and the plaintiff was liable to pay for the packing material supplied to said Sadh Ram. Thus, the defendant Society claimed that it is entitled to deduction of the sum of Rs.42,420/- for the packing material supplied to Sadh Ram and the defendant Society adjusted this amount against the amount due to the plaintiff. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court: - 3 - 1. Whether plaintiff is entitled to recover suit amount? OPP 2. Whether plaintiff has no locus standi to file the present suit? OPD 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff is estopped by his act and conduct from filing the suit? OPD 5. Relief. 5. The parties led their evidence and the learned trial Court, vide its impugned judgment and decree, decreed the suit of the plaintiff for recovery of Rs.42,420/- alongwith future interest. On appeal, the learned District Judge set aside the findings of the learned trial Court holding that the defendant Society was entitled to recover the packing charges due to Sadh Ram since the apples were sold to the plaintiff by said Sadh Ram. The learned District Judge also relied upon a letter written by said Sadh Ram to the defendant Society and accordingly, the appeal was accepted and the findings recorded by the learned trial Court were set aside. Hence the present appeal. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The only question which arises for consideration is as to whether the defendant Society was entitled to deduct the amount of packing charges supplied to the said Sadh Ram since he had sold his apples to the plaintiff. The learned trial Court referred to the practice prevalent in the market in this regard and also - 4 - relied upon a letter Ext.DJ written by the said Sadh Ram to defendant Society, dated 11.8.1996, vide which he had written to the defendant Society to adjust a sum of Rs.42,420/- for the packing material supplied to him, from the amount due to the plaintiff. The said letter Ext.DJ, dated 11.8.1996, written by said Sadh Ram to the defendant Society was relied upon and accordingly the defendant Society deducted the amount payable to the plaintiff. 8. There was no privy of contract in between the plaintiff and the said Sadh Ram to adjust the amount from the amount due from the defendant Society to the plaintiff. There is no dispute that the plaintiff was entitled to this amount and in so far as the deduction of the amount is concerned, the mere letter written by the said Sadh Ram to the defendant Society does not entitle the defendant Society to deduct this amount from the amount payable to the plaintiff. The plaintiff had never undertaken, in writing or by any document, to pay for the packing material supplied to the said Sadh Ram. In coming to its findings, the learned Appellate Court had also relied upon the statement of DW-4 Sadh Ram, apart from the letter Ext.DJ, in reversing the findings of the learned trial Court. In view of the fact that the plaintiff never admitted his liability to pay for the packing material supplied to the said Sadh Ram, therefore, even in spite of the statement of the said Sadh Ram or the letter Ext.DJ written by him to the defendant Society, it does not make the plaintiff liable for the payment of this amount, which - 5 - was due to the defendant Society from the said Sadh Ram. The defendant Society, at the most, could have filed a civil suit for recovery of the amount in question against the said Sadh Ram, but it was not entitled to deduct the amount payable to the plaintiff and as such, the findings of the learned First Appellate Court, to the contrary, are liable to be set aside and the findings recorded by the learned trial Court decreeing the suit of the plaintiff are liable to be restored. 9. In view of the above discussion, I accordingly hold that the appeal filed by the appellant deserves to be allowed and the same is allowed. Consequently, the findings recorded by the learned Appellate Court are set aside and those of the learned trial Court are restored. 10. The appeal stands allowed accordingly alongwith costs including lawyer’s fee. August 25, 2010. (V.K. Ahuja), (TILAK) Judge.