Punjab-Haryana High Court
Max Timber Traders, Hoshiarpur vs Food Corporation Of India And Others on 10 September, 2014
Author: Surya Kant
Bench: Surya Kant
RSA No.2283 of 1985 -1-
HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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RSA No.2283 of 1985 (O&M)
Date of Decision: 10.09.2014
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M/s Max Timber Traders, Mukerian . . . . Appellant
VS.
Food Corporation of India & Anr. . . . . Respondents
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CORAM : HON'BLE MR.JUSTICE SURYA KANT
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
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Present: Mr. Shailender Sharma, Advocate
for the appellant (in RSA-2283-1985)
for respondent No.1 (in RSA-2341-1985)
for respondent No.1 (in CR-74-1985)
Mr. Piyush Khanna, Advocate for
Mr. Hari Pal Verma, Advocate
for the appellant (in RSA-2341-1985)
for respondent No.1 in (in RSA-2283-1985)
Mr. VK Kataria, Advocate for petitioner (in CR-74-1985)
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SURYA KANT J. (ORAL)
(1). This order shall dispose of RSAs No.2283 & 2341 of 1985; CR No.74 of 1985 as the point in issue is common in these cases. The facts are being taken from RSA No.2283 of 1985.
(2). This Regular Second Appeal is directed against the judgement and decree dated 03.01.1981 passed by Senior Sub Judge, Hoshiarpur as well as the judgement and decree dated 29.03.1985 passed by the First Appellate Court whereby the trial court judgement has been modified in favour of the appellant. The facts giving rise to this appeal may be briefly noticed.
V.VISHAL2014.10.18 14:02 I attest to the accuracy and authenticity of this document RSA No.2283 of 1985 -2- (3). The Food Corporation of India (FCI) filed a suit for recovery of `2,43,143.50 paise or in the alternative for the recovery of 1726 quintals 55 kilograms of rice of the quality of IR8/TNI, 28 quintals & 22 kilograms Basmati Rice, 224 quintals and 14 kilograms of Parmal and 2 turpolines and 12,427 empty gunny bags (BT), against appellant No.1 - a partnership firm as well as the Cooperative General Insurance Society Ltd. - respondent No.2. It was averred in the suit that pursuant to the tenders floated by FCI inviting rice millers of Punjab for shelling of paddy of different varieties, the appellant also bidded and on acceptance of its tender dated 11.11.1970, a formal agreement was executed between the parties on 08.12.1970. As per the terms and conditions of agreement, a huge quantity of different varieties of paddy along with empty bags etc. was entrusted to the appellant for milling purposes during the period from 12.02.1971 to 10.03.1971. The appellant returned the milled rice in part but having failed to account for the balance quantity which stood misappropriated by it, the instant suit for recovery of the value of the misappropriated paddy or for the return of the equivalent quantity of same quality of paddy, was filed.
(4). The appellant-defendant No.1 as well as second respondent filed their respective written statements contesting the claim of FCI. The appellant's own case was that contrary to the agreed terms and conditions, it was forced to lift thousands of tonnes of paddy without taking care of the storage capacity and despite several V.VISHAL 2014.10.18 14:02 I attest to the accuracy and authenticity of this document RSA No.2283 of 1985 -3- communications sent to the officers of FCI that the quality of paddy was deteriorating and would no more be marketable, the appellant's request to lift the stock was not acceded to. It was claimed that a substantial part of the paddy stock was damaged or worn out due to exposure in the open weather. The appellant also claimed that the paddy entrusted by FCI was not appropriately dried-up and when it was kept in open its weight got reduced. Similarly, the residual part of the paddy after milling was statedly to be kept by the appellant as per the agreement.
(5). The Insurance Society - defendant No.2 admitted having issued the insurance policy for the period from 27.01.1972 to 26.01.1975 which was later on cancelled with effect from 07.08.1972 and the proportionate premium was statedly refunded to the appellant who accepted the cancellation of insurance policy. (6). The Civil Court on the basis of pleadings of the parties framed as many as 31 issues including:- "as to whether the plaintiff supplied goods to defendant No.1 over and above the goods admitted by defendant No.1 to have been supplied..." [Issue No.7] and "whether defendant No.1 returned goods over and above the goods admitted by the plaintiff to have been returned..." [Issue No.8]. (7). The trial court vide judgement and decree dated 03.01.1981 decreed the FCI's suit partly to the extent of recovery of 1726 quitanls 55 kgs. of IR8/TN1 rice, 28 quintals and 22 kgs Basmati rice, 224 quintals and 14 kgs Parmal rice and for the recovery of 3708 bags of V.VISHAL 2014.10.18 14:02 I attest to the accuracy and authenticity of this document RSA No.2283 of 1985 -4- B.Class category or in the alternative for the recovery of `2,07,105.40 paise with proportionate costs against both the defendants along with interest @ 12% per annum from the date of institution of suit. (8). The appellant and FCI both went in first appeal. The First Appellate Court vide judgement and decree dated 29.03.1985 accepted the appellant's appeal in part and dismissed that of the FCI. Resultantly, the FCI was held entitled to the recovery of Rs.52,591.40 paise out of which the appellant defendant was permitted to deduct a sum of `15,000 towards security and `5000/- towards loss thereby holding FCI entitled to a sum of `52,591.40 paise only. (9). Still aggrieved, the defendant-rice miller as well as the FCI have preferred these Regular Second Appeals.
(10). I have heard learned counsel for the parties and gone through the record. No substantial question of law was formulated at the time of admission of this appeal though learned counsel has earnestly urged that it is a case of misreading of evidence and/or violation of the terms and conditions agreed to by the parties and that these issues also amount to a substantial question of law requiring consideration by this Court.
(11). Having given my thoughtful consideration, I am of the considered view that no substantial question of law arises for consideration in these appeals. As may be seen from the facts noticed above, there were essentially two questions of facts which came across for adjudication, namely -
V.VISHAL2014.10.18 14:02 I attest to the accuracy and authenticity of this document RSA No.2283 of 1985 -5-
(i) how much paddy was entrusted to the appellant by the FCI as per the agreement executed between the parties and what was the quality/variety of the paddy so entrusted?
(ii) how much milled rice was returned by the appellant to the FCI, and if not entire quantity, whether its explanation regarding loss of weight or destruction of the stock on account of vagaries of weather, was correct?
(12). Both these issues were to be decided on appreciation of oral or documentary evidence led by the parties.
(13). The trial court as well as the First Appellate Court have considered the entire evidence threadbare and held that only a part of the milled rice was returned by the appellant to FCI. The appellant's plea re. (a) retention of residuary part; (b) reduction in weight when the paddy dried-up; (c) destruction of the stock on being kept in open, are pure question of facts to be answered on re-appraisal of the evidence on record.
(14). The appellant has not been able to show any non-reading of evidence on record. The re-appraisal or re-appreciation of the evidence is beyond the scope of Second Appeal. The construction or interpretation of the phrases or expressions contained in an agreement though can be a mixed question of law and facts if the fate of a case V.VISHAL 2014.10.18 14:02 I attest to the accuracy and authenticity of this document RSA No.2283 of 1985 -6- hinges upon such construction or interpretation. There is no such issue involved in the instant case.
(15). I thus do not find any question of law much less any substantial question involved in this appeal.
(16). Dismissed.
RSA-2341-1985
(17). As a necessary corollary to the above and on the same
analogy, there is no merit in the Appeal preferred by FCI also and stands dismissed.
CR-74-1985 (18). Adverting to the Civil Revision preferred by the FCI against the order dated 10.09.1984 passed by the Executing Court, it may be seen that the petitioner-Corporation filed an application for execution of the judgement passed in its favour by the trial court and it appears that the United India Insurance Company Ltd. was impleaded as a Judgement Debtor on the premise that the Cooperative General Insurance Society Ltd. who is admittedly defendant No.2 had merged into the United India Insurance Company Ltd. Since the Insurance Company objected to its impleadment, the Executing Court formulated the issue as to whether the decree could be executed against the United India Insurance Company Ltd. and decided the same against FCI observing that no notification was brought on record to establish merger of Cooperative General Insurance Society Ltd. with the United India Insurance Company Ltd.
V.VISHAL2014.10.18 14:02 I attest to the accuracy and authenticity of this document RSA No.2283 of 1985 -7- (19). Since the FCI has taken a categoric stand that the written statement itself was filed by it was the United India Insurance Company Ltd. (and not the Cooperative General Insurance Society Ltd.) who had filed written statement in the recovery suit and meanwhile, the judgement and decree was modified by the First Appellate Court which stands further upheld by this Court, I am of the considered view that the FCI deserves to be given an opportunity to establish that the above-named Insurance Company has stepped into the shoes of the Cooperative General Insurance Society Ltd. against whom the original claim was instituted.
(20). For the reasons afore-stated but without expressing any views on merit, the order dated 10.09.1984 is set aside and the execution proceedings are revived which shall be decided afresh in accordance with law.
(21). The Civil Revision stands allowed accordingly.
10.09
10.09.2014
.09.2014 (Surya Kant)
vishal shonkar
Judge
V.VISHAL
2014.10.18 14:02
I attest to the accuracy and
authenticity of this document