M/s Chadrawalia Trading Company v. M/s Birla Corporation Limited

M/s Birla Corporation Limited respondent-plaintiff (hereinafter to be referred as “the plaintiff-Corporation”) filed the civil suit for recovery of Rs.1,21,425/- (Rs.97,922/- towards balance price of the goods supplied and Rs.23,503/- as interest) against M/s Chadrawalia Trading Company appellant-defendant (hereinafter to be referred as “the defendant-Company”).

2. The case set up by the plaintiff-Corporation, in brief, in so far as relevant, was that on 16.7.1997, the defendant-Company was appointed as its authorized stockiest at Bhuna for marketing Birla Chetak cement, by virtue of written contract. As per statement of account of the plaintiff-Corporation, an amount of Rs.1,72,922/- was outstanding towards the defendant-Company. The representative of the plaintiff-Corporation requested it to make the payment, vide various letters, but in vain. Having adjusted the security deposit of the defendant- Company, still a liability of Rs.97,922/- was outstanding towards it. The defendant-Company failed to make payment despite legal notice dated 3.11.2003. Regular Second Appeal No.508 of 2010 2

3. Levelling a variety of allegations, in all, according to the plaintiff- Corporation that since the defendant-Company did not pay the outstanding amount, so, no option was left with it to file the present suit for recovery. On the basis of aforesaid allegations, the plaintiff filed the suit for recovery against the defendant, in the manner indicated here-in-above.

4. The defendant-Company contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, locus standi and cause of action of the plaintiff-Corporation. On merits, according to the defendant, it was specifically agreed between the parties at the time of its appointment as stockiest that it shall be entitled to benefits/concessions/freight subsidy etc., but the same were not granted to it (defendant). The factum of issuance of letters/legal notice by the plaintiff- Corporation to the defendant-Company was admitted. Concisely, the defendant claimed that since the plaintiff did not adjust the amount of subsidy, so, it is not entitled to recover the impugned amount. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

5. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case.

6. In order to substantiate their respective pleaded cases, the parties produced on record the oral as well as documentary evidence.

7. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court decreed the suit of the plaintiff of Rs.1,21,425/- alongwith interest at the rate of 12% per annum, by virtue of impugned judgment and decree dated 28.3.2008.

8. Aggrieved by the judgment and decree of the trial Court, the appellant-defendant-Company filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 21.10.2009. Regular Second Appeal No.508 of 2010 3

9. The appellant-defendant still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal.

10. Having heard the learned counsel for the appellant-defendant- Company, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal.

11. As is evident from the record that the plaintiff-Corporation claimed that the defendant-Company was appointed as its stockiest to market its cement, but it has failed to pay the entire amount, as per the written agreement. It is not a matter of dispute that the plaintiff has appointed the defendant as its stockiest by way of written contract.

12. However, the main contention of the learned counsel, that since the subsidy amount was not adjusted, so, the plaintiff-Corporation was not entitled to recover the amount form the defendant-Company, is not only devoid of merit but misplaced as well.

13. The defendant has miserably failed to prove any agreement or other document that it was entitled to adjustment/reimbursement of the amount of subsidy. There is no stipulation in the contract in this relevant connection. In the absence of any such contract/obligation, it cannot possibly be saith that the plaintiff-Corporation was liable to pay the amount of freight subsidy to the defendant. Thus, the Courts below have rightly accepted the claim of the plaintiff and negatived the claim of the defendant in this context. Therefore, the contrary arguments of learned counsel for appellant-defendant “stricto-sensu” deserve to be and are hereby repelled under the present set of circumstances.

14. No meaningful argument has been raised by the learned counsel for the appellant-defendant to assail the findings of the Courts below in this behalf. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-defendant, in this relevant connection, have Regular Second Appeal No.508 of 2010 4 already been duly considered and dealt with by the Courts below.

15. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the concurrent findings of fact that the plaintiff-Corporation is entitled to recover the outstanding amount from the defendant-Company and the defendant is not entitled to any amount of freight subsidy etc. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-defendant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard.

16. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in Kashmir Singh's case (supra), so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case.

17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendant.

18. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed.

3.8.2010 AS (Mehinder Singh Sullar) Judge