M/s Monika Print Store & Ors. v. Subash Chander

This is a regular second appeal directed by defendant- appellants against the judgment dated 24.12.1985 passed by Shri G.S.Chahal, District Judge, Amritsar vide which the appeal preferred by the plaintiff-appellant against the judgment dated 29.3.1985 passed by Shri Naginderjit Singh, Sub Judge IInd Class, Amritsar, who dismissed the suit of the plaintiff for recovery of Rs.4351/-, was accepted and the suit of the plaintiff stood decreed for the recovery of Rs.4351/- with costs throughout along with interest @ 12% from the date of appeal till payment. The case of the plaintiff in brief is that he was running whole- RSA No.1566 of 1986 2 sale cloth business under the name and style of M/s S.K. Trading Company being its sole proprietor. The defendant No.1 is the firm carrying on business at Batala and the defendants Nos.2 to 5 are its partners. The defendant firm purchased good worth Rs.4111.05 paise on three different dates. On 30.07.1982, the defendant paid Rs.700/- as part payment leaving a balance of Rs.3411.05paise and the defendants are liable to pay Rs.939.95paise as interest at the rate of 18% per annum. In spite of service of notices and demands the defendant had not paid the amount and hence the suit. On notice, the defendants contested the suit, denied the purchasing of the goods, making of the part payment and pleaded the suit of the plaintiff to be frivolous. It was also pleaded that the plaintiff was not authorised to sue in his own name and the firm M/s S.K. Trading Company was necessary party. The following issues were framed by the learned trial court:-

1. Whether the plaint is singed and verified properly by the competent person?OPP.

2. Whether the suit is not maintainable in the present form?OPD.

3. Whether the suit is not properly valued for purposes of court fees and jurisdiction?OPD.

4. Whether the suit is bad for mis-joinder of necessary parties as alleged?OPD.

5. Whether the plaintiff is entitled to recover the suit amount?OPP.

6. Whether the plaintiff is entitled to interest at the rate of 18% RSA No.1566 of 1986 3 per annum?OPP.

7. Whether this court has no jurisdiction to entertain and try the present suit?OPD.

8. Relief. The parties have led their respective evidence on the aforesaid issues and after appreciating the same and hearing the learned counsel for the parties, the trial Court dismissed the suit of the plaintiff. Feeling dis-satisfied with judgment dated 29.3.1985 passed by Shri Naginderjit Singh, Sub Judge IInd Class, Amritsar, the plaintiff preferred an appeal before the First Appellate Court. The said appeal was accepted by the learned District Judge, Amritsar after setting aside the judgment dated 29.3.1985 passed by the trial Court. Feeling dissatisfied with the judgment dated 24.12.1985, the defendant-appellants have preferred the regular second appeal. I have heard learned counsel for the appellants and have gone through the records of the case. The learned counsel for the appellants has submitted that for the proper decision of the appeal, the following substantial question of law have arisen :- i) Whether without proving the contract for sale, oral or written, the suit of the plaintiff-respondent could have been decreed by the Lower Appellate Court ? ii) Whether without there being any proof of delivery of goods to the defendants-appellants, the suit of the plaintiff- respondent could have been decreed ? iii)Whether the Lower Appellate Court without dealing with RSA No.1566 of 1986 4 all the findings given by the trial Court could have reversed the judgment and decree passed by the trial Court ? iv) Whether the judgment and decree passed by the Lower Appellate Court is perverse and hence triable to be set aside ? Learned counsel for the appellants has submitted that the trial Court has given a sound reasoning for dismissing the suit of the plaintiff. The plaintiff has failed to prove that goods covered by the bill in question were actually supplied to the defendants-appellants. The goods supplied to the transporters would not necessarily reach to the plaintiff. The Lower Appellate Court lost sight of the fact that entries in the accounts books of plaintiff cannot be taken as a gospel truth as the same have not been signed by any of the defendant/appellants. The plaintiff has also failed to prove that Rs.700/- were paid by the defendant/appellants to the plaintiff. The learned Lower Appellate Court has wrongly relied upon Section 39 of the Sales of Goods Act. The original GR has not been produced. So, in these circumstances, the Lower Appellate Court has committed illegality in decreeing the suit of the plaintiff for the recovery of amount of Rs.4351/- along with interest. It is further submitted that rate of interest @ 18% per annum is highly excessive. To support this contention, learned counsel for the appellant has relied upon the decision of this Court in RSA No.3978 of 2008-Satnam Singh vs. Malkiat Singh decided on May 05, 2010, vide which the future interest has been granted @ 6% per annum only in view of Section 34 of the Code of Civil Procedure. I have carefully considered the said submission made by the RSA No.1566 of 1986 5 counsel for the appellants and have gone through the records of the case. The reasoning given by the Lower Appellate Court for decreeing the suit of the plaintiff is on sound footing. The Lower Appellate Court has relied upon Section 39 of the Sales of Goods Act, which is again reproduced for ready reference :- “ (1) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, deliver of the goods to a buyer, delivery of goods to a carrier, whether named by the buyer or not for the purpose of transmission to the buyer, or delivery of the goods to a wharfinger for safe custody, is prima facie deemed to be a delivery of the goods to the buyer.” So, from the perusal of the said provisions of law, it is revealed that goods are handed over to the carrier in that case it would be presumed that goods have been delivered to the person for whom the same have been booked. The Lower Appellate Court has scanned whole of the evidence before passing the decree for recovery of the amount in question. The amount in question is not so huge that it will allure the plaintiff to forge false entries. No reasoning have been given by the defendants for filing the suit against defendant/appellants. The evidence on the file proved the fact that goods have been sent through the bills mentioned in the plaint to the defendant/appellant and the same were handed over to the goods carrier through a different billty. All the objections have been met by the Lower Appellate Court while deciding the appeal. The Hon'ble Apex Court in authority Mst. Sugani vs. RSA No.1566 of 1986 6 Rameshwar Das & Anr. 2006(4) R.C.R. (Civil) 319 in paragraph 25 held as under :- “25. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal, when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two interference are possible. One drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” So, the finding of fact decided by the Lower Appellate Court cannot be interfered unless the same is perverse. However, on perusal of the judgment of the trial Court it is revealed that the suit of the plaintiff has been dismissed on flimsy grounds. So, the substantial question of law raised by the appellants stands answered against the appellants and in RSA No.1566 of 1986 7 favour of the plaintiff. So far as the reliance of counsel for the appellant on RSA No.3978 of 2008 - Satnam Singh vs. Malkiat Singh's case (supra) is concerned that authority is distinguishable as in that case no commercial transaction was involved. In the present case, the goods were sold for a value and as such commercial transaction was there and in these circumstances the Section 34 of the CPC is not attracted. The discretion of the First Appellate Court in granting the interest cannot be lightly interfered by the High Court. In view of the above discussion, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. July 15th, 2010 (K.C. PURI) JUDGE