Sunil Berry v. State of Haryana

Mr. Anu Tiwari, Advocate for the appellant. Mr. Kulvir Narwal, Advocate for the respondent. Rakesh Kumar Garg, J. (Oral) This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for permanent injunction restraining the defendant from effecting recovery of an amount of Rs.7,50,000/- from the plaintiff on account of arrears of excise in any manner, was dismissed. As per averments made in the suit, the appellant is a resident of Ambala City and is carrying on his business there. Some of the officials of the respondent visited his residence and informed him that a firm namely M/s Madan Lal and Company of which the plaintiff was partner was and was holding L-2 licence for the year 1991-92 and an amount of Rs.7,50,000/- was due from the said firm and as such, the plaintiff being one of the partners was liable to be pay the said amount. Upon this, the plaintiff enquired about this fact. It was further pleaded that he was neither a partner in the said firm nor ever obtained any licence from the defendant for running any wine shop nor ever participated in any auction for running any wine shop nor ever participated in any bid for the purpose of obtaining licence. It was further pleaded that the officials of the defendant in collusion with the partners of the firm M/s Madan Lal & Company have RSA No.1157 of 2007 (O&M) 2 fictitiously entered the name of the plaintiff in the bid sheet and have forged and fabricated the signatures of the plaintiff. It was further pleaded that as per Excise Rules/Policy, the defendant was supposed to take action on the monthly basis, and if the instalment was not deposited by the holder of the licence, the wine shop was to be locked or confiscated at the end of the month. No such procedure was adopted by the defendant. The plaintiff has got no concern with the said licence nor has got any liability to pay the said amount. However, the officials of the defendant were adamant to recover the amount in question by him by coercive methods. The plaintiff requested the defendant to desist from adopting illegal means but to no avail which necessitated the filing of the suit for permanent injunction. In the written statement filed on behalf of the defendant various preliminary objections were raised. On merits, it was averred that a sum of Rs.9,29,839/- was due from M/s Madan Lal and Company for the year 1991-92 and not Rs.7,50,000/- as alleged by the plaintiff and the plaintiff was one of the partners of the said firm. It was further pleaded that after verifying the correctness of the arrears and the other facts that the plaintiff was one of the partners of the firm and he offered to pay in easy instalments at ridiculously low rate of Rs.500/- per month which was not acceptable to the defendant. It was further averred that the suit has been filed only to avoid the payment of the Government dues which was specifically averred that the plaintiff was partner in the firm M/s Madan Lal and Company for the year 1991-92 and he had effectively participated in the bid as well as in conducting the business from the liquor vend. In the end, prayer for dismissal of the suit was made. From the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiff is entitled for the permanent injunction as prayed for? OPP RSA No.1157 of 2007 (O&M) 3

2. Whether the suit is bad for non joinder of necessary parties? OPP

3. Whether No notice under Section 80 CPC has been served upon the defendant? OPD

4. Whether the suit of the plaintiff is not maintainable in the present form? OPD

5. Whether the plaintiff has suppressed the material facts from the court, if so, what effect? OPD

6. Relief.” To substantiate their respective case, both the parties adduced evidence. After hearing learned counsel for the parties and going through the record, the trial Court dismissed the suit of the plaintiff with no order as to costs. Feeling aggrieved thereby, the appellant filed an appeal before the Lower Appellate Court which was also dismissed. Still not satisfied, the appellant has approached this Court by filing the instant appeal submitting that the following substantial questions of law arise in this appeal: “(i) Whether the finding of the Courts below is absolutely perverse and contrary to the evidence produced on record? (ii) Whether the appellant can be made liable to make payment of amount for a company of which he could not proved to be a member? (iii) Whether the respondent are justified in demanding money from the appellant without any notice? (iv) Whether the judgments of the learned courts RSA No.1157 of 2007 (O&M) 4 below suffer from complete non-application of mind? In support of this appeal, learned counsel for the appellant has vehemently argued that both the Courts below have failed to appreciate the evidence on record from which it has been clearly established that the appellant was neither a partner in the firm M/s Madan Lal and Company nor was present at the time when the bid was held for auctioning the wine shop and the Courts below have without appreciating the aforesaid evidence and the fact that there was no rebuttal evidence against the report of the handwriting expert examined by the appellant, returned the findings against the appellant which are perverse and are liable to be set aside. I have heard learned counsel for the parties and perused the impugned judgment and decrees of the Courts below. The sole controversy before this Court is that as to whether the appellant was one of the partners in the firm M/s. Madan Lal & Company, and if so, as to whether he had participated and signed the documents in the auction bid for liquor licence for the year 1991-92. The aforesaid question is purely a question of fact. Both the Courts below on appreciation of evidence have recorded a concurrent finding of fact that the appellant was a partner in the firm of M/s. Madan Lal & Company, who had given bid in the open auction held for issuance of licence etc., and therefore, the appellant cannot avoid the liability to pay. No substantial question of law arises in this appeal. Dismissed. May 4, 2010 (RAKESH KUMAR GARG) JUDGE