sa268.03.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No. 268/2003 M.S.R.T.C. Wardha ..vs.. Mohd. Farib Mohd. Galib Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr. S. C. Mehadia, Advocate for appellant. Mr. S. V. Sirpurkar, Advocate for respondent. Coram: R. K. Deshpande, J. Date : February 3, 2010 1. This appeal is preferred by original defendant challenging the judgment and decree dated 12.12.2002 passed by learned District Judge, Wardha in Regular Civil Appeal No. 16/1999 whereby appellant/defendant is directed to pay Rs. 21,390/- to the respondent/plaintiff along with interest at the rate of 6% p.a. from the date of filing of the suit till realisation. The appellant/M.S.R.T.C. forfeited an amount of Rs. 24,200/- deposited by respondent/plaintiff at the time of acceptance of auction. The respondent/plaintiff filed Special Civil Suit No. 146/1995 for recovery of the said amount. The said civil suit was dismissed by learned 2nd Jt. sa268.03.odt 2 Civil Judge Senior Division, Wardha by judgment and order dated 16.12.1998. Being aggrieved by that order, the plaintiff/respondent preferred Regular Civil Appeal No. 16/1999 and as stated earlier, by judgment and order dated 12.12.2002 the appeal has been decided directing appellant to pay the said amount with interest. Hence, original defendant/M.S.R.T.C. has filed the present appeal. 2. The appellate Court has recorded a finding that the plaintiff has proved that the appellant/defendant deliberately avoided to give complete delivery of goods and withheld the amount of Rs. 22,000/-. The appellate Court has recorded a finding that the plaintiff initially paid an amount of Rs. 24,200/- and, thereafter, on 03.04.1995, Rs.79,089/-. When the plaintiff went to take delivery of goods on 05.04.1995, there was shortage of goods and hence was asked to come later on. The plaintiff paid total Rs. 1,03,289/- till 13.04.1995 and thus there was no breach of contract by plaintiff. The appellate Court has further held that it was for the respondent to produce the stock register to indicate whether the stock was available on 05.04.1995 and in spite of that, the plaintiff had failed to take delivery of goods. The appellate Court has drawn an adverse inference that there sa268.03.odt 3 was no stock available which could be delivered to the plaintiff on 05.04.1995. Thus, there was a breach of contract on the part of the appellant/defendant. Hence, the forfeiture of the amount was held to be illegal and decree was passed. 3. Mr. Mehadia, learned counsel for the appellant, has urged that the appellate Court was not justified in ignoring the admitted position on record that the plaintiff was called upon by notice dated 24.04.1995 to take delivery of the goods and there was no response from the plaintiff to the same. He has further urged that there was no case made out for drawing adverse inference and the judgment of the appellate Court is, therefore, liable to be quashed and set aside on this ground. 4. The question whether the plaintiff had gone for taking delivery on 05.04.1995, is disputed question of fact. The appellate Court has recorded a finding on the basis of evidence available on record, that no stock was available, which could be lifted by the plaintiff on 05.04.1995. The appellate Court has further drawn adverse inference on the ground that if the appellant/defendant wanted to plead that there was stock available then nothing prevented the appellant from producing the stock register, which it failed to sa268.03.odt 4 produce. There is no perversity in recording such finding, pointed out. Be that as it may, if the plaintiff was not really interested in lifting the material on 05.04.1995, he would not have deposited the balance amount on 13.04.1995. In view of above, I do not find any substantial question of law which arises for consideration in the present appeal. In the result, there is no substance in the appeal, the same is, therefore, dismissed. No order as to costs. J UDGE kahale