The Tamilnadu Civil Supplies Corporation Limited v. 1.M.Velusamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 24.01.2008CORAM:The Honourable Mr.Justice S.TAMILVANANA.S.No.339 of 1996The Tamilnadu Civil Supplies CorporationLimited. Rep.its Regional Manager,Periyar Region,Erode.... Appellant/Plaintiff-vs-1.M.Velusamy2.Nachammal3.V.Gandhimathi (The respondents/defendants are the legal representatives of Mr.P.Muthusamy (Deceased)the first defendant in suit)... Respondents/Defendants Appeal is filed under Section 96 r/w 41-A of C.P.C.against the judgment and decree made in O.S.No.267 of 1987dated 18.10.1994 on the file of Subordinate Judge, Erode.For Appellant : Mr.V.Rangarajan For Respondents : Mr.A.K.KumarasamyJUDGMENTThis appeal has been preferred against the judgmentand decree dated 18.10.1994 made in O.S.No.267 of 1987 on thefile of the Subordinate Judge, Erode. The appellant herein wasthe plaintiff in the suit before the Trial Court.2.It is seen that the suit was filed by the appellantherein seeking a money decree against the estate of thedeceased late P.Muthusamy Gounder in the hands of therespondent herein. It is not in dispute that late P.MuthusamyGounder father of the respondents 1 to 3 had been a hullingagent under the appellant. As per the agreement dated26.10.1982, entered into between the appellant and lateMuthusamy Gounder, the appellant used to supply the paddy and https://hcservices.ecourts.gov.in/hcservices/ after hulling, the later Muthusamy Gounder should return therequired quantity of rice to the appellant. As per the case ofthe appellant, the late Muthusamy Gounder had received 270.614Metric Tonns of Paddy, entrusted in 4677 bags for hulling,between the period from 28.10.1982 to 01.11.1982 for which hehad to return 165.263 Metric Tonnes of rice. However, he hadsupplied only 105.680 Metric Tonnes of rice. Subsequently, theappellants sent various letters and remainders. In spite of thesame, balance of rice has not been supplied by late MuthusamyGounder. Hence, the suit was filed by the appellant/plaintiff,seeking a decree directing the respondents to pay a sum ofRs.3,09,197/- for the value of rice not supplied as per thecontract, from the estate of the deceased Muthusamy Gounder, inthe hands of the respondents. The respondents, as defendantshad disputed the claim of the appellant by way of fillingwritten statement. Considering the oral and documentaryevidence adduced by both sides and arguments advanced by bothsides, the Trial Court by the impugned judgment, rejected theclaim of the appellant and accordingly the suit was dismissedwithout costs. Aggrieved by the judgment and decree, thisappeal has been preferred.3.Learned counsel appearing for the appellant wouldcontend that as per Ex.A1, agreement, late Muthusamy Gounderhad agreed to take Paddy for hulling and as per Exs.A2 to A25and Exs.A26 to A39 paddy was supplied to late MuthusamyGounder. However, according to the learned counsel for theappellant, the Trial Court without properly appreciating theevidence, rejected the claim of the appellant. 4.Per contra, Mr.A.K.Kumarasamy, learned counsel appearingfor the respondents contended that as per the evidenceavailable, it has been admitted by P.W.1 that there was singlelock system maintained by the appellant whereby periodicallyminimum quantity of paddy was released to late MuthusamyGounder, for hulling. Only after getting back the requiredquantity of rice, further paddy bags were released to thedeceased. However, in order to substantiate the claim of theappellant, the account books, concerned registers maintained bythe appellant were not produced before the Trial Court. Thereis no acceptable proper reason given for the non-production ofthe relevant account books and Registers to substantiate theclaim of the appellant. Even in this appeal, no such registerhas been produced by the appellant by invoking Order 41 Rule 27C.P.C.5.In the suit, P.W.1 has deposed that there was a depositof Rs.50,000/- by late Muthusamy Gounder with the appellant.Similarly, he has admitted that for hulling of paddy, he wasentitled to get Rs.6.70 for hulling charges per quintal. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, he was entitled to Rs.7,080.60/- for 1056.80quintal of rice supplied. It is not in dispute that lateMuthusamy Gounder was not a signatory to Exs.A2 to A25 truckmemos, to establish that the alleged quantity of paddy wassupplied to him, as stated by the appellant, though Exs.A26 toA45 having marked as memos for the supply of paddy to lateMuthusamy Gounder. According to the appellant, late MuthusamyGounder had returned only 105 Metric Tonnes of rice atdifferent dates to the appellant for the supply of Paddy. Theappellant has not produced any register or account books toestablish the alleged supply of Paddy to Late Muthusamy Gounderfor the reasons best known to them. Admittedly, there was nolegal notice by the appellant, prior to the date of filing ofthe suit. The appellant has relied on Ex.A36 said to be aletter, given by the hulling agent, late Muthusamy Gounder. Asfound by the Court below, in the said document there is no datementioned. As per this letter late Muthusamy Gounder hadsought permission from the appellant to return 50 tonnes ofrice. There is no evidence on the side of the appellant, onwhat basis the hulling agent had sent the letter even without adate and other details. In the letter, only the appellant'sregistered office seal is available and as per this seal, thedate shown as 26.09.1984. 6.Learned counsel appearing for the appellant has notdisputed that there was a criminal complaint lodged against thehulling agent late Muthusamy Gounder, as per Ex.A48. Ex.A48 isthe copy of the office copy of the complaint given by theRegional Manager, Tamilnadu Civil Supplies Corporation Limited,Erode, before the Sub Inspector of Police, Perundurai, againstlate Muthusamy Gounder and two others. It has been admittedthat the Criminal case in C.C.No.579 of 1980 filed againstMuthusamy Gounder ended in acquittal. However, there is nobar in laying the civil case, if it is proved. To establishcriminal liability, the prosecution should prove the casebeyond reasonable doubt, before the Judicial Magistrate,whereas in a Civil Suit, preponderance of probability issufficient to establish a civil claim.7.It has been admitted by P.W.1 that he did not knowanything about the execution of Ex.A1. Admittedly, he was aSingle Lock Officer for releasing paddy to the hulling agent.Even by verifying the relevant register he could have statedwhat was the quantity of paddy supplied to the hulling agentand what was the quantity of rice returned by him afterhulling. He has stated that the registers and other accountbooks are in the office of the appellant but not produced inthe Court. P.W.2, who was the Branch Manager of the appellant,Erode Branch has also admitted in his evidence that the SingleLock Officer was the incharge of the Godown, which had released https://hcservices.ecourts.gov.in/hcservices/ paddy to late Muthusamy Gounder for the purpose of hulling andfor which registers were maintained by Single Lock Officer andthat there was a case filed against the Single Lock Officer formis-appropriation. P.W.4, who was the Manager(Apox) in theoffice of the appellant, had deposed that on perusal of theaccount books the correctness of Ex.A49, could be decided.Ex.A49 is said to be the document of balance, but it has beenprepared in a white sheet by ink and stated as office document.As contended by the learned counsel for the respondent withoutverifying the original account books Ex.A49 cannot be acceptedas a proper document to fix the responsibility of non-supply ofrice to the appellant.8.The appellant, mainly based on Ex.A46, has claimed thesuit amount against the respondent. The Firstrespondent/M.Velusamy, who was examined as D.W.1, has disputedthe signature available in Ex.A46. As per the case of theappellant, the document was signed by the deceased MuthusamyGounder. Even P.W.1 was not a witness to the document and noother witness had spoken to about the letter said to have beenaddressed by late Muthusamy Gounder was signed by him. Asfound by the Court below, the appellant has not produced therelevant account books and registers to establish the allegedfact that, what was the quantity of paddy given to the hullingagent and what was the quantity of rice returned by him, so asto decide the short supply of rice and to assess the valuethereon. Admittedly, no notice was given to the hulling agent,so as to get his explanation as found by the Court below.Similarly Ex.A46, cannot be accepted as a document to fix theliability on Muthusamy Gounder, the deceased hullingcontractor. It is seen from the certified copy of the judgmentrendered in C.C.No.57 of 1990 dated 23.11.1990, by the ChiefJudicial Magistrate, Erode, that the hulling agent MuthusamyGounder and others were acquitted after the trial of the case.9.In the above circumstances, I could find no error orinfirmity in the impugned judgment rendered by the Court belowin dismissing the suit filed by the appellant, so as to warrantany interference of this Court. In the result, confirming theJudgment and Decree rendered by the Court below, this appeal isdismissed. However, there is no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ SmiTo,1. The Subordinate Judge, Erode.2.The Record Keeper, V.R.Section, High Court, Madras.One cc to Mr.V.Rangarajan, advocate SR.No.2962A.S.No.339 of 1996KSK[CO]SKY/13/3