Punjab-Haryana High Court
Punjab State Co-Operative Supply & ... vs M/S Mahavir Rice Mills on 1 March, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
RSA No.5028 of 2010(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
RSA No.5028 of 2010(O&M)
Date of Decision: March 01, 2012
Punjab State Co-operative Supply & Marketing Federation.......Appellant
Versus
M/s Mahavir Rice Mills .......Respondent
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.Vikas Singh, Advocate for the appellant.
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TEJINDER SINGH DHINDSA, J.
CM No.14814-C of 2010 This is an application seeking condonation of delay of 47 days in refiling the appeal. The application is duly supported by an affidavit of Clerk of learned counsel for the appellant.
2. For the reasons recorded in the application, prayer is allowed. Delay of 47 days in refiling the appeal is condoned.
3. CM disposed of.
CM 14815-C of 2010
4. This is an application under Section 5 of the Limitation Act seeking condonation of delay of 8 days in filing the appeal. The application is duly supported by an affidavit of Shiv Kumar, Law Officer, Markfed, Chandigarh.
RSA No.5028 of 2010(O&M) 2
5. For the reasons recorded in the application, prayer is allowed. Delay of 8 days in filing the appeal is condoned.
6. CM disposed of.
RSA 5028 of 2010
7. The Punjab State Co-operative Supply and Marketing Federation Ltd. (for short to be referred as 'Markfed') is in second appeal before this Court as a suit for recovery filed by the Federation has been dismissed by the trial Court and in a civil appeal preferred, the judgment and decree of the trial Court stands affirmed.
8. A suit for recovery of Rs.4,07,107/- was filed by the Markfed against the defendant in terms of pleading that food-grains/paddy had been purchased from the market for milling purposes from various rice shellers. During the crop year 1999-2000, 11935 bags weighing 7757.75 quintals of paddy had been stored by the defendant-firm for milling purposes. It was pleaded that the defendant-firm failed to mill the paddy in time and accordingly, 5130 bags weighing 3334.50 quintals had to be shifted to other millers and 1792 bags of paddy were sold against tender. It was pleaded that there had been shortage of 144.62 quintals of paddy. Markfed had to pay Rs.1,18,474/- as excess milling charges for the paddy that had been returned by the defendant-firm unmilled. Markfed had also to suffer a loss of Rs.1,73,066/- as 263.43 quintals rice was not delivered and which had been kept by the defendant-firm. In all, for the losses suffered on various counts, Markfed pleaded that it was entitled to recover a sum of Rs.4,07,107/- from the defendant-firm.
9. The defendant-firm contested the suit stating that there was no RSA No.5028 of 2010(O&M) 3 written contract for milling the paddy between the plaintiff and the answering defendant. It was only to oblige Marked that 11935 bags of paddy had been stored in the premises of the defendant-firm. Such stored bags of paddy always remained under the sole control and custody of Markfed and the defendant-firm had no control over the same. 5130 bags were shifted by Markfed to other millers and 1792 bags were sold by Markfed. 4402 bags of paddy were milled by the defendant-firm on the request of plaintiff-Markfed which was equal to 2861.30 quintals of paddy and the same was duly delivered to the plaintiff. Resultantly, no paddy or rice remained with the defendant and in fact, a bill had been submitted by the defendant-firm to the plaintiff to recover an amount of Rs.9010/-. It was further stated that as the defendant-firm had not been allotted the agency for custom milling by Markfed in the year in question, as such, a rent of Rs.4500/- towards storage of paddy was due from Markfed.
10. Upon the pleadings of the parties, the trial Court framed the following issues:
1. Whether the plaintiff is entitled for the recovery of Rs.4,07,107/- along with interest? OPP
2. Whether the suit of the plaintiff is barred by limitation? OPD
3. Whether the suit of the plaintiff is not maintainable in the present form? OPD
4. Relief.
11. The trial Court dismissed the suit and even the civil appeal preferred by Markfed has been dismissed vide order dated 15.2.2010 by the first Appellate Court.
RSA No.5028 of 2010(O&M) 4
12. I have heard Mr.Vikas Singh, learned counsel appearing for the appellant at length.
13. Learned counsel would contend that the findings of the Courts below in dismissing the suit for recovery filed by Markfed suffer from mis- reading and mis-appreciation of evidence.
14. The finding of fact as recorded by the Courts below is to the effect that 11935 bags of paddy were stored with the defendant, out of which 7533 bags were shifted to other millers. The balance 4402 bags only remained in the premises of the defendant-firm. The defendant-firm had delivered 2861.30 quintals of rice to the Food Corporation of India in the account of plaintiff-Markfed as has been proved on record vide documents Exhibit D1 to Exhibit D9. The trial Court has taken note of the testimony of PW1 Anup Singh, Assistant Accounts Officer of Markfed who, in his cross- examination, clearly stated that he was not aware as regards the agency of custom milling having been allotted to the defendant-firm in the year in question. Such material witness was also ignorant as regards any agreement having been entered into between the parties for custom milling of paddy. Still further, PW2 Dhan Singh, Branch Incharge, Markfed admitted in his cross-examination that agency for custom milling had not been allotted to the defendant-firm in the year 1999-2000. As such, it is upon due appreciation of evidence led on record that the Courts below have dismissed the suit for recovery filed by Markfed against the defendant-firm.
15. Learned counsel appearing for the Markfed has not been able to show any mis-reading or mis-appreciation of evidence for me to hold the findings recorded by the Courts below to be perverse while exercising RSA No.5028 of 2010(O&M) 5 jurisdiction under Section 100 of the Code of Civil Procedure. The High Court in second appeal will not embark upon an exercise of re-appreciation of evidence. The findings of fact recorded upon due appreciation of evidence would be binding on the High Court.
16. I do not find any question of law, much less much less a substantial question of law that arises for consideration in the present second appeal.
17. The instant appeal is, accordingly, dismissed.
18. Appeal dismissed.
( TEJINDER SINGH DHINDSA )
March 01, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No