Karnataka High Court
M/S Sathish Industries vs The State Of Karnataka on 25 April, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
REGULAR SECOND APPEAL No.1890/2010
BETWEEN:
M/s. Sathish Industries,
3rd Cross, Garden Area,
Shimoga City,
By its Proprietor,
K.B. Manjappachar,
Aged about 51 years,
S/o. Brahmachari,
R/o. Subhadra Bramashree
Nilaya, Kuvempu Road,
Shimoga - 577 201. ...Appellant
(By Sri. R. Gopal, Adv.)
AND:
1. The State of Karnataka,
Vidhana Soudha,
Bangalore-577 001.
By its Chief Secretary.
2. The Superintendent Engineer,
Bhadra Project Circle,
B.R. Project,
Lakkavalli,
Bhadravathi Taluk-577 301.
RSA.No.1890/2010
2
3. The Executive Engineer,
Bhadra Left Channel Division,
No.4, Bhadravathi - 577 301.
4. The Assistant Executive Engineer,
No.2. B.R.R. B.C. Sub-Division,
D.B. Halli,
Bhadravathi Taluk-577 301.
5. S.D. Maruthi,
S/o. Late Devappa,
Aged about 68 years,
Retd. Assistant Executive Engineer,
LBS Nagar,
Shimoga City-577 201. ...Respondents
( By Smt.N.Anitha, HCGP for R-1 to R-4
And Sri B.S.Prasad, Advocate for C/R-5
(CP.No.605/2010)
This Appeal is filed under Section 100 of CPC, against
the judgment and decree dated:21.04.2010 passed in
R.A.No.13/2007 on the file of the Prl. District Judge,
Shimoga, allowing the appeal and setting aside the judgment
and decree dated:28.02.2007 passed in O.S.No.97/1998 on
the file of the II Addl. Civil Judge (Sr. Dn.), Shimoga.
This Appeal coming having been heard and reserved for
judgment on 16.04.2018, coming on for pronouncement of
judgment, this day the Court delivered the following :
RSA.No.1890/2010
3
JUDGMENT
The present appellant was the plaintiff in O.S.No.97/1998 in the Court of the II Addl.Civil Judge (Sr.Dn.), Shivamogga, (henceforth for brevity referred to as "the trial Court") who has filed the said suit against the present respondents for recovery of a sum of `88,788/- with interest thereupon.
2. The summary of the case of the plaintiff in the trial Court was that, at the specific request of defendant No.5, who at the relevant point of time, was working as Assistant Executive Engineer in the 4th defendant's office, had supplied furniture and equipments to the said 4th defendant's office on 2.11.1996 and 15.11.1996 under delivery challan. The goods were worth `66,696/- The defendants even after receiving the supplies of furniture and equipments made by the plaintiff, have failed to make payment towards the same. In that RSA.No.1890/2010 4 connection, the plaintiff had written several letters to them demanding the amount due to it. 5th defendant sent a baseless reply. The plaintiff got issued a statutory legal notice under Section 80 of Code of Civil Procedure, 1908, to the defendants on 16.3.1998. Since the defendants did not pay the amount, the plaintiff was constrained to institute the suit.
3. The defendant Nos.1 to 4 entered appearance through the District Government Pleader. The 5th defendant appeared through his counsel. It was only the 4th and 5th defendants who have filed their written statements. The 4th defendant in its written statement had denied all the plaint averments, including the alleged supply of furniture and equipments by the plaintiff to it. It also expressly denied its liability to pay any amount to the plaintiff, much less, the suit claim amount with interest thereupon.
RSA.No.1890/20105
The 5th defendant also in his written statement denied all the plaint averments made by the plaintiff. He has specifically denied that he had made any request to the plaintiff to supply furniture and equipments and that the plaintiff had supplied the same. He also denied that he had made any promise to make payment immediately after the supply.
4. Based upon the pleadings of the parties, the trial Court framed the following issues:
1) Whether the plaintiff proves the suit transaction with defendants?
2) Whether plaintiff is entitled for interest at the rate of 21%?
3) Whether suit of plaintiff is barred by time?
4) Whether suit is bad for mis-joinder of parties?RSA.No.1890/2010 6
5) Whether plaintiff is entitled for the relief sought for?
5. In support of its case, the plaintiff got examined one witness as PW-1 and got produced and marked documents from Exs.P-1 to P-16. On behalf of the defendants, 5th defendant was examined as DW-2 and one more witness as DW-1 and no documents were got marked.
6. The trial Court after hearing both side and considering the material placed before it, answered issued Nos.1 and 5 in the affirmative, issue No.2 partly in the affirmative and issue Nos.3 and 4 in the negative and by its judgment and decree dated 28.2.2007, decreed the suit of the plaintiff in part, holding that the defendants are liable to pay principal amount of `66,996/- together with interest at the rate of 12% p.a. from 2.12.1996 till the date of filing of the suit and the RSA.No.1890/2010 7 interest at the rate of 6% p.a. on the principal amount from the date of suit till the date of realisation.
7. Being aggrieved by the judgment and decree passed by the trial Court, the 5th defendant preferred an appeal before the Prl.District Judge at Shivamogga (henceforth for brevity referred to as "the First Appellate Court") under Order XLI Rule 1 read with Section 96 of the Code of Civil Procedure, in R.A.No.13/2007. The respondents therein appeared before the Court and contested the matter.
8. The First Appellate Court framed the following points for its consideration:
1. Does respondent No.1 plaintiff prove that on the basis of the work order issued by defendant No.5 while he was serving as Assistant Executive Engineer in defendant No.4 office had placed work order and accordingly, he had supplied the furniture on RSA.No.1890/2010 8 2.11.1996 and on 5.11.1996 in all worth `66,996/- and so he is entitled to recover that amount with interest at 21% p.a.?
2. Does the appellant and defendant No.5 prove that he did not receive any furniture from respondent No.1/plaintiff and he is not liable to pay the suit amount and so the judgment and decree passed by the court below is erroneous, capricious, arbitrary, contrary to the facts and law and needs to be set aside?
3. What order?
After hearing both side and perusing the material placed before it, the First Appellate Court answered point No.1 in the negative and point No.2 in the affirmative and by its judgment and decree dated 21.4.2010, allowed the appeal, by setting aside the judgment and decree passed by the trial Court and dismissed the original suit with cost.
RSA.No.1890/20109
9. It is against the said judgment and decree of the First Appellate Court, the plaintiff has preferred this appeal.
10. This Court while admitting this appeal, framed the following substantial question of law :
" Whether the appellate Court was justified in dismissing the suit filed by the appellant in an appeal filed by R-5 herein in his personal capacity even though the judgment and decree passed by the trial Court had not been challenged by the respondents 1 & 4 to whom the furnitures were supplied by the appellant?"
11. In response to the notice, the respondent Nos.1 to 4 are being represented by the learned High Court Government Pleader and respondent No.5 is being represented by his learned counsel.
RSA.No.1890/201010
12. The lower Court records were called for and the same are placed before the Court.
13. Heard arguments of learned Counsel from both side. Perused the materials placed before this Court.
Learned counsel appearing for both side at the time of addressing their arguments on main appeal, also made a submission that apart from the substantial question of law, they would also address their arguments on the correctness of the judgment and decree passed by the First Appellate Court. Accordingly, both side addressed their arguments on the said aspect also.
14. For the sake of convenience, the parties would be referred to henceforth with the ranks they were holding before the trial Court respectively. RSA.No.1890/2010 11
15. The learned counsel for the appellant in his argument while reiterating the contention taken by the plaintiff in its memorandum of appeal also contended that the documents at Exs.P-1 and P-2 which bears the signature of defendant No.4 with rubber stamp would clearly establish the supply of furniture and equipments by the plaintiff to the 4th defendant. Even though there is not the strict compliance of the established procedure by the plaintiff regarding the supply of goods to a Government department, still, in view of the fact that the defendants have accepted and made use of the goods supplied by the plaintiff, they are liable to pay the claimed amount to the plaintiff under Section 70 of the Indian Contract Act, 1872.
16. Learned High Court Government Pleader appearing for respondent Nos.1 to 4 in her argument submitted that even though defendant Nos.1 to 4 did RSA.No.1890/2010 12 not prefer any appeal challenging the judgment and decree passed by the trial Court, however, it would not preclude from contesting the matter in view of the Order XLI Rule 4 of Code of Civil Procedure, 1908. She further submitted that the reasons given by the First Appellate Court in setting aside the judgment and decree passed by the trial Court is well reasoned, as such, it does not warrant any interference at the hands of this Court.
Learned counsel appearing for respondent No.5/defendant No.5 in his argument submitted that there is no privity of contract between the plaintiff and defendant No.5 and that the goods alleged to have been supplied were also not received by defendant No.5. Further the said defendant No.5 came to that office only 20 days earlier, as such, the suit itself was not maintainable as against defendant No.5. He further submitted that the price of the material supplied by the RSA.No.1890/2010 13 plaintiff also has not been proved by the plaintiff, as such also, he is not entitled for any amount payable by the defendants.
17. Admittedly, the defendants 1 to 4 are the State and its departments. Defendant No.5 was said to be working as Assistant Executive Engineer of 4th defendant's office at the relevant point of time. The plaintiff, which is a proprietorship concern, has identified itself in its documents, more particularly in its letter and Invoices at Exs.P-4, P-5, P-14 and P-15 and in its legal notice at Ex.P-6, as KSIMC Recognised Unit and Government of Karnataka SPD registered and also Government Departments and General Orders suppliers. Thus, it is expected that the plaintiff was fully aware of the legal procedure that are required to be complied with while entering into a contract with Government and its departments. According to the plaintiff, as well RSA.No.1890/2010 14 PW-1, the Proprietor of the plaintiff concern, there was no written request or placing of orders by the defendants, requesting the plaintiff to supply the furniture and equipments to them. According to the plaintiff, since certain miscreants had damaged the furniture and equipments in the office of the 4th defendant on 3.2.1996, the said office was in need of furniture, as such, the 5th defendant who was working as Assistant Executive Engineer in that office, requested the plaintiff orally for supply of furniture, accordingly, the plaintiff had supplied them. The pleading in this regard, as well the evidence of PW-1, has been specifically and categorically denied by both defendant No.4 and defendant No.5, both in their written statements, as well in the cross-examination of PW-1 and also in the evidence of DW-1 and DW-2. Even the document at Ex.P-16 produced and relied upon by the plaintiff itself, go to show that the 4th defendant office RSA.No.1890/2010 15 had to comply certain formality before purchasing any of the furniture and equipments. Accordingly, through its letter at Ex.P-16, it had requested the concerned Superintending Engineer to accord its permission for the purchase of furniture for the office of the 4th defendant. In that regard, the 4th defendant in Ex.P-16 had also collected a quotation by one M/s.Modern Industries, Davanagere, and submitted the same along with the said letter and further stated that the purchase would be in accordance with the rate/tariff prescribed by KSIMC. Thus, it is clear that the plaintiff has not either submitted its quotation or tender for supply of goods or received any written request from the defendants for supply of those goods.
18. Even defendant No.5 as DW-2, has specifically stated that, at no point of time, he had made any request to the plaintiff asking him to supply RSA.No.1890/2010 16 furniture and equipments to the 4th defendant office. As such, it is clear and evident from the pleading and the evidence placed before the Court that there was no existing contract between the plaintiff and the defendants for supply of furniture and equipments from the plaintiff to the defendants. Further, there was no privity of contract between the plaintiff and the 5th defendant. Merely because the 5th defendant was stated to be working as Assistant Executive Engineer of the 4th defendant, to which, the plaintiff is claiming to have supplied with the goods, the said 5th defendant has also been arrayed as a party in the suit by the plaintiff. However, the contention of the plaintiff that it is the supplier and seller of furniture and equipments, has not been denied or disputed from the defendants.
19. In order to show that he had supplied the goods to the 4th defendant, the plaintiff has mainly relied RSA.No.1890/2010 17 upon the documents at Exs.P-1 to P-3. Ex.P-1 is a delivery challan shown to have been issued from the plaintiff to the 4th defendant, giving the details of seven items of furniture in the form of Steel almirah, tables and chairs, which are said to have been delivered to the 4th defendant. In the same delivery challan, which is dated 2.11.1996, at the left side bottom, beneath the printed lines, acknowledgement of receipt of goods and signature of one Sri G.K.Rudrappa, is shown, who, according to the plaintiff, was an official working in the office of the 4th defendant. However, the 4th defendant has specifically denied that the said person by name Rudrappa was working in their office at the relevant point of time.
20. Ex.P-2 is an acknowledgement, acknowledging the receipt of 12 chairs, 3 small steel almirah and 1 table shown to have been acknowledged by the RSA.No.1890/2010 18 4th defendant's office. It bears an endorsement of acknowledgement and signature made on behalf of the 4th respondent with the rubber stamp of office of the 4th defendant and dated 15.11.1996. At the bottom of the same document, it is also shown that one typist table and one typist chair were returned on the very same day. Even though the defendant has denied or disputed any such acknowledgement issued by it, it has not denied or disputed that the said document bears the rubber stamp and signature of the 4th defendant. Interestingly, in the cross-examination of PW-1, a suggestion has been made from the defendants' side suggesting to the witness that the plaintiff has taken back a typist chair and a typist table shown in Ex.P-1, the said suggestion was admitted as true by PW-1. Thus, by making the said suggestion, the defendants have admitted that certain furnitures and more particularly, those shown at Ex.P-1, were delivered to it RSA.No.1890/2010 19 by the plaintiff. Otherwise, the question of the plaintiff taking back those two items from the defendants would not have been arisen.
21. Ex.P-3 is a reply letter by defendant No.5 as an Assistant Executive Engineer of defendant No.4, to the plaintiff. In the said letter, in the opening paragraph itself, defendant No.5 has clearly stated that the plaintiff has supplied few articles to the office of the 4th defendant without any notice to the defendant No.5 and that when defendant No.5 enquired with the Store Keeper, the said Store Keeper has stated that he does not know as to who supplied them, however, for having kept those articles, he has issued a receipt. Defendant No.5 in the same paragraph has also stated that since the quality of those articles were not satisfactory and since those articles were supplied to it without the defendant placing any order, it was informed to return RSA.No.1890/2010 20 those articles. From this categorical statement of defendant Nos.4 and 5 in the said letter at Ex.P-3, it is once again clear and established that the plaintiff had supplied or delivered certain articles to defendant No.4. Had defendant No.4 not received those articles, the question of it issuing an acknowledgement as per Ex.P-2 would not have been arisen. A Government department, that too, particularly a department like defendant No.4, would not have issued a `receipt' for anybody or everybody whoever keeps some articles with it. When defendant No.4 is not a clock room, why it has permitted the plaintiff to keep his articles with defendant No.4, is also not explained by the defendants. Further, Ex.P-3, the reply letter, also shows that defendant No.5 has informed his official to return those articles.
22. Admittedly, there are no document to show that those articles were returned by defendant No.4 to RSA.No.1890/2010 21 the plaintiff, except a typist chair and a table as shown in the bottom at Ex.P-2 and as admitted by PW-1 in his cross-examination. Therefore, the evidence of PW-1 when read with Exs.P-1, P-2 and P-3, clearly go to show that the plaintiff has supplied the articles shown in Ex.P-2 to the 4th defendant. The other documents produced by the plaintiff at Exs.P-4 to P-14 are only the exchange of letters in the form of legal notice and reply etc., Those documents cannot take away either the evidentiary value of Exs.P-1, P-2 and P-3 or the oral evidence of the parties given based on those documents.
23. Ex.P-15 is an Invoice shown to have been issued by the plaintiff to the defendant No.2. The said document is in torn condition and does not show the signature of defendant therein. However, DW-1 in his cross-examination has stated that his office has got the copy of Ex.P-15 with it. When DW-1 has admitted that RSA.No.1890/2010 22 his office has received copy of the said Invoice, then, it was for the said defendant to give explanation as to how, when and under what circumstances the said Invoice came to their possession. Under normal course, there would not have been any reason for a supplier of the goods to submit Invoice to a customer or purchaser of the goods when that customer or purchaser would not have intended or interested to buy them. In the instant case, as already observed above, the letter of the defendant No.4 to defendant No.2, which is at Ex.P-16 shows that defendant No.4 was in bad need of certain furnitures shown in the said letter, which they wanted to purchase, as such, by sending a quotation to defendant No.2 under the said letter at Ex.P-16, it has sought permission to purchase those furnitures shown in the said letter at KSIMC approved rate. Those articles shown in Ex.P-16 are the articles which also finds place in the Invoice at Ex.P-15. The acknowledgement at RSA.No.1890/2010 23 Ex.P-2 also speaks about receipt of those articles by defendant No.4. Therefore, it is clear that even in the absence of any specific tender or quotation, the defendant No.4 has received and acknowledged the furnitures and articles shown in Ex.P-2 and Ex.P-15 from the plaintiff.
24. From the above analysis, it is clear that the plaintiff had supplied the furnitures and equipments to the defendant No.4. It is also observed above that the said supply was made in the absence of any specific written contract between the defendants and the plaintiff. It is also not the case of the plaintiff that the supply of those articles was a gratuitous act on his part. He raising the Invoice and demanding the payment of those articles supplied by him to the defendant, itself go to show that it was a non-gratuitous act. In such a case, merely because there was no express contract, the RSA.No.1890/2010 24 services rendered or the articles delivered to other party as a non-gratuitous act, cannot be deprived of any consideration to the supplier in return. Since in the case on hand, the defendants and more particularly, defendant Nos.1 to 4, have allowed the plaintiff to supply to it certain furnitures and articles, which act, cannot be called an unlawful act and the said act not intending to be a gratuitous act on the part of the plaintiff, the said defendants who have enjoyed the benefit thereof by using those furnitures continuously, are bound to make compensation to the plaintiff in respect of the furnitures delivered to it. This principle is clearly enunciated under Section 70 of the Indian Contract Act, 1872. Otherwise, the defendants would be allowed to enrich themselves unjustly.
25. Learned counsel for the appellant in his argument relied upon two judgments of Hon'ble RSA.No.1890/2010 25 Supreme Court in Pillu Dhunji Shaw Sidhwa -vs- Municipal corporation of the City of Poona, reported in AIR 1970 SC 1201. In the said case, the Hon'ble Supreme Court while dealing with the provisions of Bombay Provincial Municipal Corporations Act, though was pleased to observe that a formal contract incorporating the agreed terms between the plaintiff and the Corporation was not and could not be executed and sealed as required by the Act, as such, the plaintiff was not entitled to maintain a suit for the price of motor spare parts supplied by him to Municipal Corporation relying upon any contractual obligation of the Corporation, still, the plaintiff may maintain his claim for compensation under Section 70 of the Contract Act. In the same case, their Lordships were further pleased to observe that the High Court, from the order of which the appeal was preferred, was in error in holding that the plaintiff was entitled not to the invoice value of the RSA.No.1890/2010 26 goods, but, only to the fair price of the goods. They held that the compensation would normally be the market price of the goods. The Hon'ble Supreme Court furthermore was pleased to observe that the plaintiff was also entitled to interest at the rate of 6% p.a. from the date one month after the date of supply till the date of institution of the suit, and at 6% on judgment from the date of the suit till payment.
In Mahabir Kishore and others -vs- State of M.P. reported in AIR 1990 SC 313, the Hon'ble Apex Court was pleased to explain the principles of unjust enrichment as discussed under Section 72 of the Contract Act as below :
" The principle of unjust enrichment requires : first, that the defendant has been `enriched' by the receipt of a "benefit", secondly, that this enrichment is RSA.No.1890/2010 27 "at the expense of the plaintiff"; and thirdly; that the retention of the enrichment be unjust. This justifies restitution. Enrichment may take the form of direct advantage to the recipient's wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved."
In the instant case, as already observed above, even though an express contract for supply of goods cannot be entered between the plaintiff and the defendant Nos.1 to 4, still, the defendants have been enriched by the receipt of furnitures and equipments supplied by the plaintiff. The said supply being a non-gratuitous act by the plaintiff, the enrichment of the defendant was at the expense of the plaintiff. The retention of the furnitures by the defendants is an unjust enrichment for them. Therefore, the defendants have to compensate.
RSA.No.1890/201028
Therefore, the defendants have to compensate the plaintiff though the plaintiff may not be entitled for the suit claim amount since the transaction has not proved to be a contractual one.
26. The description of the suit claim of the plaintiff as shown in the plaint is as below :
1) Principal amount `66,996/-
2) Interest at the rate of
21% p.a. of `66,996/-
From 2.12.1996 till the
The date of suit is `21,242/-
3) Notice charges `500/-
4) Typing charges `50/-
-------------
Total `88,788/-
--------------
The principal amount at `66,996/- is the price of the furnitures and articles supplied by the plaintiff to the defendants. Ex.P-15 is the Invoice in that regard. The said price shown in the Invoice is in consonance with the KSIMC rate which is shown in Ex.P-16. Even RSA.No.1890/2010 29 though the delivery challan at Ex.P-1 shows that seven articles have been supplied to the defendants, but the acknowledgement signature has been disowned by the defendants contending that there was no person by name Rudrappa in their office, which evidence has not been denied by the plaintiff. As such, it is only an acknowledgement under Ex.P-2 which can be taken as an acknowledgement of receipt of goods issued by the plaintiff. As such, it is only for those articles received by the defendants, they are liable to pay money as compensation to the plaintiff.
27. The total amount of the invoice, including the tax amount is `66,996/-. However, as could be seen in Ex.P-2, as well as admitted by PW-1 in his cross- examination, out of the total articles, one typist table and one typist chair has been returned back to the supplier. The cost of table is `2,085/- and chair is at RSA.No.1890/2010 30 `689/- as could be seen in Exs.P-15 and P-16. Therefore, after deducting the total amount of these two articles, which comes to `2,774/-, for the balance amount of `64,222/-, the plaintiff is entitled to. As observed by the Hon'ble Supreme Court in Pilloo Dhunji Shaw Sidhwa's case (supra), the plaintiff is also entitled for interest thereupon at 6% p.a.
28. It was the argument of learned counsel for the appellant that defendant Nos.1 to 4 since have not challenged the judgment and decree passed by the trial Court, they are liable to pay the entire decree amount as ordered by the trial Court together with interest thereupon.
Learned High Court Government Pleader in her argument drew the attention of this Court to Order XLI Rule 4 of Code of Civil Procedure, 1908, and submitted RSA.No.1890/2010 31 that non-filing of any appeal by defendant Nos.1 to 4 against the judgment and decree passed by the trial Court would not preclude from getting the benefit of reversal of the judgment and decree made by the First Appellate Court.
29. Order XLI Rule 4 of Code of Civil Procedure, 1908, reads as below.
" Rule 4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.- Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the RSA.No.1890/2010 32 plaintiffs or defendants, as the case may be."
It is also pertinent to refer to Order XLI Rule 33 of Code of Civil Procedure, 1908. which reads as below :
" Rule 33 : Power of Court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, RSA.No.1890/2010 33 although an appeal may not have been filed against such decrees.
Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
From a reading of the above rules under Order XLI of Code of Civil Procedure, 1908, it is clear that where there are more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the defendants, any one of the defendants may appeal from the whole decree and thereupon, the Appellate Court may reverse or vary the decree in favour of all the defendants.
In the instance case, even though defendant Nos.1 to 4 did not challenge the judgment and decree passed RSA.No.1890/2010 34 by the trial Court before the First Appellate Court and it was only defendant No.5 who challenged the said judgment and decree passed by the trial Court and succeeded in the appeal, the Appellate Court was not in error in setting aside the judgment and decree passed by the trial Court in its entirety and as against all the defendants before the trial Court, for the reason that the defendant No.5 had challenged the judgment and decree of the trial Court on the grounds that were common to all the defendants. Further, under Order XLI Rule 33 of the Code of Civil Procedure, the Appellate Court has the power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order, as the case may require, and the said power can be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Thus, the act of the First RSA.No.1890/2010 35 Appellate Court in passing the order making it applicable to the non-appellants before it would not make the said judgment and decree invalid.
However, in view of the above analysis, the said judgment and decree passed by the First Appellate Court now deserves to be set aside for the reason that the conclusion that has arrived at by the First Appellate Court in dismissing the suit of the plaintiff has now proved to be an erroneous finding. As such, the judgment and decree of the First Appellate Court deserves to be set aside and the judgment and decree passed by the trial Court may have to be restored and confirmed.
The restoration and confirmation of the judgment and decree passed by the trial Court is also not in its entirety for the reason that the decree passed by the trial Court is for a sum of `66,996/- along with interest RSA.No.1890/2010 36 thereupon at 12% p.a. from 2.12.1996 till the date of suit and thereafter, at the rate of 6% from the date of the suit till the date of realisation and also as against all the defendant Nos.1 to 5 before it. However, in the light of the judgment in Pilloo Dhunji Shaw Sidhwa's case (supra), the rate of interest is to be confined to 6% only in the case on hand also and in the light of the circumstances of the present case which is almost similar to that of said Pilloo Dhunji Shaw Sidhwa's case (supra), The defendant No.5 admittedly was only an officer discharging his official duty as an Assistant Executive Engineer of defendant No.4. Even according to the plaintiff, his business was only with defendant No.4 and superiors in its hierarchy, who are defendant Nos.2 and
3. According to the plaintiff, the goods were supplied to defendant No.4, whose next higher officer in the RSA.No.1890/2010 37 hierarchy is defendant No.3, but the bill passing authority is defendant No.2. Defendant No.5 though being an officer in defendant No.4, but, there is no material to show that he had placed order with the plaintiff. Ex.P-3 written by him and also the reply notice given by him at Ex.P-12 is very clear on the point. Moreover, even PW-1 also, no where has stated that, but for defendant No.5, he would not have supplied goods to the defendant No.4. On the other hand, he has identified himself as supplier of the goods to the government departments. As such, in the absence of any privity of contract or in the absence of any material or evidence to show that the defendant No.5 has acted in his personal capacity, the said defendant No.5 cannot be held personally liable to the plaintiff. As such, the confirmation of the judgment and decree passed by the trial Court is only with the said suitable modifications. RSA.No.1890/2010 38
30. Thus, answering the substantial question of law accordingly, I proceed to pass the following order:
ORDER The Regular Second Appeal is allowed. The judgment and decree dated 21.4.2010, passed by the Prl.District Judge, Shivamogga, in R.A.No.13/2007, is set aside. The judgment and decree passed by the II Addl.Civil Judge (Sr.Dn.), Shivamogga, in O.S.No.97/1998, dated 28.2.2007, is restored and confirmed, however, with the modification that the decreetal amount of `66,996/- is reduced and confined to `64,222/- (Rupees Sixtyfour thousand two hundred and twentytwo only). The rate of interest awarded by the trial Court at 12% p.a. and 6% p.a. is modified and it is held that plaintiff is entitled to interest at the rate of 6% p.a. from 2.12.1996 till the date of filing of the suit on the decreetal amount and thereafter, on the total amount at the rate of 6% from the date of the suit RSA.No.1890/2010 39 till its realisation. The defendant Nos.1 to 4 are jointly and severally liable to pay the decreetal amount together with interest awarded thereupon to the plaintiff. The suit against defendant No.5 is dismissed.
Draw modified decree accordingly.
Sd/-
JUDGE bk/-