M/s Suba Singh Harjit Singh Commission v. Sanjiv Kumar

Mr. Raman Mohinder Sharma, Advocate for the appellants. Rakesh Kumar Garg, J. CM No.6483-C of 2010 CM is allowed subject to all just exceptions. Delay, if any, in making up the deficiency in court fee is condoned. CM No.6484-C of 2010 For the reasons mentioned in the application, delay of 35 days in refiling this appeal is condoned. CM stands disposed of. RSA No.2134 of 2010 (O&M) This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit filed by the plaintiff- respondent for recovery of a sum of Rs.1,16,255.96 paise with proportionate costs along with interest @ 6% per annum on the said amount from the date of filing of the suit was decreed. As per the averments made in the suit, the appellants are running a Commission Agent shop and the plaintiff-respondent used to sell RSA No.2134 of 2010 (O&M) 2 his crops through them. However, the appellants failed to render the accounts.

The plaintiff-respondent sold the crops worth Rs.1,62,495/- through the appellants but they neither issued J-Forms nor made the payment for the aforesaid crops and further wanted to effect forcible recovery from him without any right, which necessitated the filing of the present suit. The suit was contested by the appellants admitting that the plaintiff-respondent was selling his agricultural produce at their shop. However, it was pleaded that he used to get the sale proceeds regarding his crops after each and every transaction and was obtaining advance from the appellants. It was denied that an amount of Rs.1,62,495/- was outstanding against them. However, it was pleaded that they were entitled to recover some amount from the plaintiff-respondent with interest thereon. The remaining allegations of the plaint were denied and dismissal of the suit was prayed for. The plaintiff-respondent filed replication controverting the averments made in the written statement and reiterating those of the plaint.

After hearing learned counsel for the parties and going through the entire record of the case, the trial Court came to the conclusion that the amount of Rs.1,44,668/- was due to the plaintiff-respondent as sale proceeds of agricultural produce and consequently, issues No.1 and 3 were decided in his favour. However, the trial Court concluded that the plaintiff-respondent was having knowledge regarding all the transactions and since he had claimed a specific amount by giving the details, the question of passing the decree for rendition of accounts does not arise. Thus, issue No.2 was decided against the plaintiff-respondent. The remaining issues were decided in his favour. Consequently, the trial Court RSA No.2134 of 2010 (O&M) 3 passed a decree for recovery of Rs.1,44,668/- against the appellants. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendants preferred an appeal before the Lower Appellate Court.

Along with this appeal, an application under Order 6 Rule 17 CPC for amendment in the written statement was also filed so as to raise a plea that the plaintiff-respondent had received the sale proceeds regarding agricultural produce sold by him and in fact, he was liable to pay to the appellants and the plaintiff-respondent had executed a compromise in this regard, the original of which was in his possession. However, the aforesaid amendment application was rejected by the Lower Appellate Court on the ground that the appellants wanted to introduce a plea on the basis of compromise deed (Mark-A) which was already to their knowledge from the very beginning and no reason was shown as to why the plea sought to be raised now, was not raised in the written statement. The Lower Appellate Court on reappraisal of evidence held that the plaintiff- respondent was entitled to recovery a sum of Rs.1,16,255.96 paise along with interest @ 6% per annum from the date of filing of the suit till its realization.

Consequently, the findings of the trial Court on issue No.3 were modified to that extent. Still not satisfied, the defendants are in appeal before this Court. It is relevant to point out that in the grounds of appeal, the learned counsel for the appellants has submitted that the following substantial questions of law arise in this appeal: “(i) Whether the Courts below can over look the evidence against plaintiff brought on the record? (ii) Whether an admission made by the plaintiff in his cross-examination regarding his signatures on a RSA No.2134 of 2010 (O&M) 4 document, is not a substantial piece of evidence against him? (iii) Whether a decree for recovery can be passed merely on the assertion of the plaintiff that he was not paid money for his crops sold by him time and again without receiving the money of earlier crops continuously for eight times with intervals of six months or less? (iv) Whether the Courts below should have not drawn an adverse inference against the plaintiff for non- production of the documents i.e.

J-Forms? (v) Whether the judgment of the Court which fails to take all the factors into consideration, is not perverse?” However, no worthwhile argument was raised by the learned counsel appearing on behalf of the appellants to support the aforesaid alleged substantial questions of law as raised by the appellants. I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. It is not in dispute that the plaintiff-respondent was selling the crops at the shop of the appellants. In fact, there is also no dispute with regard to the sale of crops for the period as alleged and the stand taken by the appellants is that the plaintiff-respondent used to receive the sale proceeds of the crops after every transaction. However, the appellants have failed to substantiate their aforesaid stand that the plaintiff-respondent was paid the sale proceeds of his crops.

No evidence has been produced on record by the appellants in support of their assertion. The only document on record, Mark-A, the alleged compromise between the parties on the basis of which it is claimed by the appellants that the plaintiff- respondent had received the sale proceeds of his crop, is inadmissible in RSA No.2134 of 2010 (O&M) 5 evidence. Thus, no substantial question of law, as raised by the appellants, arises in this appeal. Thus, I find no merit in this appeal. Dismissed. May 25, 2010 (RAKESH KUMAR GARG) JUDGE