Punjab-Haryana High Court
Gaurav Trading Company vs Food Corporation Of India And Another on 6 May, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.2966 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2966 of 2013 (O&M)
Date of decision:06.05.2014
Gaurav Trading Company, Ujhana ....Appellant
Versus
Food Corporation of India and another ....Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest? Present:- Mr. Sandeep Bansal, Advocate for the appellant.
RAKESH KUMAR GARG, J Appellant is carrying the business of Commission Agent in Anaj Mandi, Ujhana in the State of Haryana and is involved in the business of sale and purchase of food grains. As per the averments, the respondents purchased the wheat in the year 2008-2009 from the appellant firm amounting to `1,48,03,538/- w.e.f.15.4.2008 to 13.5.2008 but paid an amount of `1,47,53,659/-. Hence, a balance amount of `49,879/- was due against the defendants as per the regular account books of the plaintiff-firm. Since the defendant- department refused to make the payment, the instant suit for recovery was filed claiming the aforesaid amount along with interest Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2966 of 2013 (O&M) 2 @ ` 1.56% per month as per the prevailing custom in the market to recover debt.
The respondents in their written statement raised various preliminary objections. However, it was admitted that defendant department had purchased 27,774 bags of wheat weighing 13887 quintals from plaintiff-firm. The respondents checked the weight at the premises of the firm which was less than the standard weight. Thereafter, the test check was conducted on 3.5.2008 and shortage of wheat weighing 41 quintals 95 kilograms was found amounting to ` 46,335 and value of Tat Patti ` 3528/- and income tax ` 39,335/- was deducted from the payment of bills for the total amount of purchased wheat after deducting the shortage of wheat etc. was paid to the appellant. The signatures of the plaintiff-firm were obtained on original bill which were duly signed by one Gaurav on behalf of the appellant-firm in token of shortage of wheat. Since the respondents had paid the entire amount of the plaintiff, the suit was liable to be dismissed.
On the basis of the pleadings of the parties, following issues were framed:-
1. Whether the plaintiff is entitled for recovery of `53,000/-
i.e. principal amount of `49,879/- and `3021/- as interest and whether plaintiff is entitled for pendente lite and further interest? OPP
2. Whether plaintiff has no locus standi to file suit? OPD Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2966 of 2013 (O&M) 3
3. Whether plaintiff has no cause of action to institute the suit? OPD
4. Whether suit is not maintainable in the present form? OPD
5. Whether suit is bad for non-joinder and mis-joinder of necessary parties? OPD
6. Relief.
After considering the evidence on record and hearing learned counsel for the parties, trial Court decided issue No.1 against the appellant, whereas issues No.2 to 5 were decided against the respondents. Resultantly, the suit was dismissed with costs vide impugned judgment and decree dated 19.04.2012. While deciding issue No.1, trial Court observed as under:-
"18. In the present case, the plaintiff has stated that in the year 2008-2009, Food Corporation of India had purchased wheat worth ` 14803538/- from them, but paid only ` 14753659/- and thus a sum of ` 49879/- is still outstanding against them. It is not disputed that the defendants had purchased the wheat from Ujhana in the year 2008-2009 through the plaintiff commission agent firm for ` 14803538/- and ` 14753659/- was paid by the defendant Food Corporation of India to the plaintiff firm. Thus, the parties are not at issue regarding the actual payment due and the actual payment made. But the Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2966 of 2013 (O&M) 4 dispute is regarding the deducted amount of ` 49, 879/- by the defendants as shortage of 41 quintal 96 kgs of wheat was found. The onus to prove that the shortage was because of the negligence on behalf of the defendants was upon the plaintiff. The plaintiff has failed to place on record any document to prove the details of wheat which was ordered to be purchased and the amount of wheat which was actually delivered. The plaintiff firm has placed on file a copy of their register maintained in their regular course of business and perusal of the same shows that it is only regarding the payment due and the payment made, but nothing is mentioned of the quantity of the wheat. The defendants have very clearly mentioned in their bill Ex.D9 that the amount was deducted due to shortage of grain from the plaintiff firm and this bill has been duly signed by the representative of the plaintiff firm and the plaintiff has not denied his signatures on the bill. This clearly shows that the plaintiff had the knowledge of such deduction and he had admitted the correctness of the bill and hence he is estopped by his own act and conduct to deny the correctness of the bill at this stage. Thus, the plaintiff has failed to prove that he is entitled to recover the said amount from the defendants. In view of this discussion, Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2966 of 2013 (O&M) 5 this issue is decided against the plaintiff and in favour of the defendants."
Aggrieved from the judgment and decree of the trial Court, plaintiff filed an appeal before the First Appellate Court which was also dismissed vide impugned judgment and decree dated 01.03.2013 observing as under:-
"After giving my thoughtful consideration to the submissions so made by both the sides, I find no merit in this appeal, because weighment of the wheat was done by the respondents-defendant at the premises of the appellant-plaintiff and not in their own godown, because appellant/plaintiff has miserably failed to prove that weighment slips Ex.P2 to Ex.P6 pertains to their godown by leading any cogent and convincing evidence. Perusal of letter Ex.D7 written by the respondents-defendant to Secretary, Market Committee, Narwana shows that shortage of wheat was also found on re-weighment in their godown. Notice Ex.D8 was given by the respondents-defendant to the appellant-plaintiff about fulfillment of shortage, but it did not pay any heed. Vide notice Ex.D1 all the commission agents were well informed that they shall be responsible for any shortage in the wheat. Hence, it does not lie in the mouth of appellant-plaintiff that the aforesaid deduction of Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2966 of 2013 (O&M) 6 Rs.49,879/- was made illegally and arbitrarily from its account by the respondents-defendant. The facts and circumstances of 2010(4) PLR 89 (supra) relied upon by learned counsel for the appellant-plaintiff are altogether different from the facts of present case, therefore, no benefit whatsoever of the same can be given to it."
Still not satisfied, plaintiff has filed the instant appeal submitting that following substantial questions of law arise in this appeal:-
a) Whether it was incumbent upon the learned Courts below to have decreed the suit in view of specific provisions and Rules 24 and 25 of the Rules reproduced as above?
b) Whether the respondents are estopped by their own act and conduct?
c) Whether the learned Courts below can shift the onus of proving the shortage of wheat on the appellant in view of the facts and circumstances of the case?
d) Whether the findings of the learned Courts below are perverse, contrary to law, equity, justice, good conscience and natural justice and are liable to be set aside in view of the facts and circumstances of the present case?
In support of his case, learned counsel for the appellant Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2966 of 2013 (O&M) 7 has vehemently argued that in the present case, no notice was ever issued by the respondents to the appellant-firm at the time of weighment and packing of the produce as the respondents have no right or authority to deduct the amount from the appellant, who is only a commission agent and gets the commission for the sale purchase of the agricultural produce and weighment etc. is taken in the presence of the seller and purchaser. As per Rule 24(9) of the Punjab Agricultural Produce Markets (General) Rules, 1962, (hereinafter referred to as, "the Rules") the buyer is responsible to get the agricultural produce weighed immediately after the auction or on the same day. The Kacha Arthiya has to make payment to the seller immediately after the weighment is over. Accordingly, the purchaser is required to make the payment to the Kacha Arthiya and thus, no amount could have been deducted from him on account of alleged shortage of wheat. It is the further case of the appellant that as per Rule 25, test weighment is required to be carried out at the site of weighment and if no such test weighment is held at the site the produce shall deemed to have been correctly weighed, whereas in the present case, neither any such test weighment was carried out by the respondents at the site nor any such notice was sent to the other party for the weighment and thus, impugned judgments and decrees of the Courts below are liable to be set aside.
Learned counsel for the appellant has vehemently relied upon a judgment of this Court in RSA No.1471 of 2014 titled as Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2966 of 2013 (O&M) 8 Haryana Agro Industries Corporation Ltd. and others vs. Madan Lal decided on 19.3.2014 wherein this Court had a occasion to interpret the Rules 24 and 25.
However, the aforesaid judgment is not applicable in the facts and circumstances of the present case as in that case the wheat sold to the vendee was weighed at the time of weighment as per the Rules in accordance with Rule 24(9) of the Rules and the said weighment on the site was not disputed and the shortage was alleged on the basis of the test weighment done at the storage point at the back of seller/commission agent without issuing any notice to him whereas in the instant case, a finding has been recorded that the weighment was done at the premises of the appellant before lifting the wheat by the respondents and the said shortage of wheat was also found on re-weighment in their store.
Not only this, in the instant case, appellant was well informed for shortage of wheat which was duly accepted as noticed by both the Courts below.
Moreover, a concurrent finding has been recorded that the appellant has failed to place on record any document to prove the details of wheat which was ordered to be purchased and the amount of wheat which was actually delivered. The argument of counsel for the appellant that he was not responsible for shortage of wheat even at the time of weighment before leaving the same from his premises is without any substance and cannot be supported on the basis of the Kadian Savita 2014.05.09 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2966 of 2013 (O&M) 9 Rules and judgments produced by him.
In view of the aforesaid, no substantial questions of law, as raised, arise in this appeal.
No merits.
Dismissed.
May 06, 2014 (RAKESH KUMAR GARG)
savita JUDGE
Kadian Savita
2014.05.09 14:02
I attest to the accuracy and
integrity of this document
High Court Chandigarh