HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT Nos.1026 AND 1252 OF 1986 AND SECOND APPEAL No.483 OF 1986 COMMON JUDGMENT: The suits O.S.Nos.178 of 1975 and 182 of 1975 on the files of District Judge, Guntur and O.S.No.177 of 1975 on the file of Subordinate Judge, Guntur, were filed by the plaintiffs against the common defendants claiming for recovery of the amount of the paddy supplied to the defendants. The suit O.S.No.178 of 1975 was filed for recovery of Rs.15,588/- being the value of 119 bags of paddy at the rate of Rs.120/- per bag supplied from 08.02.1975 to 08.12.1975 with interest and O.S.No.182 of 1975 was filed for recovery of Rs.13,200/- being the value of 100 bags of paddy at the rate of Rs.120/- supplied from 08.02.1975 to 08.12.1975 with interest and O.S.No.177 of 1975, which relates to the Second Appeal was filed for recovery of Rs.13,596/- being the value of 103 bags of paddy supplied to the defendants with interest. 2. The claim of the appellants/plaintiffs is that the 1st defendant is firm, which is represented by the 2nd and 3rd defendants. According to the claim of the plaintiffs, they have supplied the paddy to the defendants on 18.12.1973 by the plaintiff in O.S.No.178 of 1975 and on 18.12.1973 by the plaintiff in O.S.No.182 of 1975 and on 14.12.1973 by plaintiff in O.S.No.177 of 1975 for sale of the same on the instructions of the plaintiffs. Receipts were also given acknowledging the carting of the paddy. One week prior to 28.01.1975 as the market was increasing, the plaintiffs demanded the defendants to sell the paddy at the rate of Rs.110/- to Rs.120/- per bag, but the defendants avoided. Notices were issued on 28.01.1975, but a false reply was given and therefore, the suits were filed for recovery of the value of the paddy at the rate of Rs.120/- per bag with interest. 3. The defendants filed a written statement contending that carting of the paddy to the factory of the 1st defendant is not true. The defendants never carried any such type of business to sell the paddy and in fact, the business of the defendants is only to purchase the paddy from others as per the directions of the Government but it is not for re-sale. The alleged receipts said to have been given are not true. Some amounts were invested by the plaintiffs and their relatives during the year, 1974 in the 1st defendant-firm and they pressed for the same and the suit was filed with false allegations. 4. On the basis of the above pleadings, the following necessary issues have been framed by the trial Courts, for trial: O.S.No.178 of 1975: 1) Whether the chit dated 28.12.1973 filed by the plaintiff is true and binding on the defendants? 2) Whether the claim of the plaintiff is enforceable in law? 3) Whether the defendants are liable for the suit claim? 4) Whether the defendants are entitled to claim interest? 5) To what relief? O.S.No.182 of 1975: 1) Whether the chit dated 28.12.1973 filed by the plaintiff is true and binding on the defendants? 2) Whether the claim of the plaintiff is enforceable in law? 3) Whether the defendants are liable for the suit claim? 4) Whether the defendants are entitled to claim interest? 5) To what relief? O.S.No.177 of 1975: 1) Whether the plaintiff on trusted 103 bags of Mossori paddy to defendant firm and took acknowledgment dated 28.12.1973 with a direction to sell the same under the instructions of the plaintiffs a future date? 2) What was the market rate of Mossori paddy in January, 1975? 3) Whether the plaintiff is not entitled to enforce the suit claim? 4) Whether the plaintiff entitled to any interest? 5) To what relief? 5. On the basis of the joint memo, both the suits i.e., O.S.Nos.178 and 182 of 1975 were tried together and common evidence was recorded in O.S.No.182 of 1975. On behalf of the plaintiffs, PWs.1 to 4 were examined and Exs.A.1 to A.20 were marked, on behalf of the defendants, DWs.1 to 3 were examined and marked Exs.B.1 to B.52. Exs.X.1 was also marked through Court. 6. In O.S.No.177/75, on behalf of the plaintiff, PW.1 and 2 were examined and marked Exs.A.1 to A.18 and on behalf of the defendants, DWs.1 and 2 were examined and got marked Exs.B.1 to B.27. Exs.X.1 to X.15 were marked through Court. 7. After considering the evidence on record, on 31.12.1985 the learned District Judge, Guntur pronounced a common judgment in O.S.Nos.178 and 182 of 1975 dismissing both the suits and consequently, the appeals A.S.Nos.1026 and 1252 of 1986 arose. On 29.12.1979 the learned Subordinate Judge, Guntur dismissed the suit in O.S.No.177 of 1975, as against that judgment an appeal was preferred in A.S.No.30 of 1980 before the District Judge, Guntur and the said appeal was also dismissed on 31.12.1985 and consequently, the Second Appeal No.483 of 1986 is filed. 8. The points that arise for consideration are: 1) Whether the plaintiffs have supplied the paddy as claimed? 2) Whether the plaintiffs are entitled for the amounts claimed in the suits? 9. POINTS: The contention of the appellants is that the 1st defendant-firm was doing business and the paddy was carted for the purpose of sale at higher price for the benefit of the plaintiffs. In O.S.No.178 of 1975 and O.S.No.182 of 1975, the chits, which were said to have been given on 28.12.1973, are marked as Exs.A.3 and A.4 and on the basis of them, the claims were made. The defendants have contended that the chits were not given by them and there is no carting of the paddy as claimed. The lower Court considered the fact that the alleged receipts Exs.A.3 and A.4 were not referred to in original notices Exs.A.5 and A.9 issued before filing of the suits on 28.01.1975 and the explanation given by the plaintiffs that they were not referred because there was no dispute was not accepted. This contention of the appellants cannot be accepted since the claim is made for the value of the paddy, which was carted for sale. If really, the chits were true and when a notice was issued after a long time, they would not have kept quiet without referring the same. Evidently, either in the plaint or in the evidence, the plaintiffs are not able to say that for how long the paddy was asked to be kept. It is difficult to believe having carted the paddy in December, 1973, the plaintiffs would have asked the paddy to be kept without being sold for more than one year. Even admittedly there is no understanding between the plaintiffs and the defendants as to the benefit if any to be derived by the 1st defendant. Further-more, when the paddy was said to have been supplied on a particular date, naturally a receipt will be issued on the same day when the paddy was carted. But, in this case, the receipts are said to have been given on a different date. Therefore, this is also a circumstance, which did not weigh by the lower Court. So also, when the paddy is said to have been supplied to the defendants, at least godown rent or storage rent has to be paid, but there was no plea of any such understanding. Evidently, even from the evidence of PW.2 whenever the paddy is taken to the premises of the 1st defendant, there will be checking and an entry in the register and there will be a way-bill for the lorry and a chit for carts. But, no such record is filed. Even otherwise the business said to have been conducted by the 1st defendant does not permit to store the paddy and sell the same at a subsequent date. Merely because the 1st defendant or its staff have indulged in some irregularities, which was noticed by the Commercial Tax Department, does not strengthen the case of the appellants. The mere excess stock with the 1st defendant does not mean that the paddy of the appellants was stored. Pertaining to the entries under Exs.B.22 and B.23 it was clearly deposed by DW.2 that the amount was paid. The learned Judge has considered the evidence on record and expressed doubt about the truthfulness of the claim of the plaintiffs and also doubted the truthfulness of the chits and consequently dismissed the suits. 10. In fact, except the interested evidence of PW.1 there is not of much other evidence to prove the claim of the appellants. When once the possibility of issuing the receipts after the delivery of the paddy is improbable, the long storage of the paddy with the 1st defendant is also not possible and the claim of the appellants cannot be accepted. The lower Court has considered the evidence on right perspective and discarded the evidence of the plaintiffs and dismissed the suits of the plaintiffs. 11. Even the suit O.S.No.177 of 1975 was dismissed on the same grounds and the appellate Court has also come to the conclusion that there was no proof of carting of the paddy and dismissed the appeal. It is a question of fact, which has been assessed by the lower Court and when once both the Courts have come to the conclusion that the appellant has failed to prove the delivery of the paddy, in the second appeal it is not permissible to assess the evidence and even the re- assessment, if possible, will not lead to any different conclusion. 12. Therefore, from consideration of the entire material, I hold that there are no merits in the appeal and the appeals are deserve to be dismissed. 13. In the result, Appeal Suits Nos.1026 and 1252 of 1986 and Second Appeal No.483 of 1986 are dismissed. There shall be no order as to costs. _________________________ N.R.L. NAGESWARA RAO, J Date:07.09.2011 INL