Punjab-Haryana High Court
The Suiting Shop vs Jct Limited on 14 March, 2012
Author: K.C.Puri
Bench: K.C.Puri
RSA No. 1237 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 1237 of 2012
Date of decision 14.03. 2012.
The Suiting Shop
...... Appellant.
versus
JCT Limited, Phagwara and another
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers 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?
Present : Mr. C.L.Sharma, Advocate for the appellant.
K.C.PURI, J.
Defendant-appellant-the Suiting Shop has directed the present appeal against the judgment and decree dated 28.11.2011 passed by Mrs. Gurmeet Kaur, learned Additional District Judge, Kapurthala, vide which the appeal against the judgment and decree dated 23.5.2009 passed by Shri Harish Anand, PCS, Additional Civil Judge (Senior Division), Phagwara, decreeing the suit of the plaintiff, was dismissed.
2. The facts in brief are that the plaintiff is public limited company duly incorporated under the Indian Companies Act having its RSA No. 1237 of 2012 2 registered office at Village Chohal, District Hoshiarpur, factory and works at G.T. Road, Phagwara. Rajmohan Singh being its Director (Operations) and a principal officer of the company, is fully conversant with the facts of the case and holds general power of attorney, whereby he has been authorized to institute the case till finality.
3. It has been pleaded that as per order of defendant No.1, the plaintiff got booked cloth to be delivered to defendant No.1 ex-Phagwara to Mumbai on various occasions in the financial year 1999-2000 to the tune of Rs.73,42,725/- and the same was booked through M/s Green Carriers & Contractors Pvt. Ltd. The defendant no.2 having branch office at Phagwara to be delivered to defendant no.1 only on their furnishing consignee copies of GRs. It was settled between the plaintiff and defendant no.1 that on booking of the goods with defendant no.2 or any other carrier, the copy of invoice shall be sent to defendant no.1 and on receipt of that invoice, the defendant no.1 would make payment of the amount mentioned in the bill/invoice. On receipt of the payment of particular bill/invoice the consignee copy of that GR, issued by defendant no.2 was to be sent to defendant no.1 who was then to take delivery of the goods after surrendering the consignee copy sent by the plaintiff and defendant no.2 was to deliver the goods booked after obtaining consignee copy of GR from defendant no.1. The plaintiff received certain payments of the goods, but did not receive the amount standing on the basis of remaining bills/invoices. The plaintiff had issued letter dated 9.4.2001 calling upon defendant no.2 to rebook the goods to the plaintiff. In response to the said letter, the RSA No. 1237 of 2012 3 defendant no.2 returned some goods to the plaintiff but did not return the remaining goods. On enquiry, it was revealed that defendant no.1 had lifted the goods worth Rs.42,15,944/- from defendant no.2 without submitting of consignee copies. Defendant no.2 in collusion and connivance with defendant no.1 delivered the goods to defendant no.1 without obtaining the consignee copy and thereby misappropriated the goods and as such, the liability of defendants is joint and co-extensive qua the claims of the plaintiff. The goods were booked with defendant no.2 at Phagwara and the payments were also received and to be received at Phagwara. Part of the goods were delivered at Phagwara, therefore, the Court at Phagwara has got the territorial jurisdiction to entertain and try the suit. The defendants were asked many a time to make the payment of the amount, but to no effect. Hence, the suit.
4. On put to notice, the defendants contested the claim of the plaintiff. Defendant no.1 filed separate written statement and inter-alia pleaded that this Court has got no territortial jurisdiction to entertain and try the suit. The goods were supplied at Mumbai and all the payments were made to the plaintiff at Mumbai. The suit is bad for non-joinder of necessary parties. Pardeep Nanglia/D.M. Anukampa of Pee Vee Textiles, Mumbai, who is the authorised agent of the plaintiff through whom the goods were supplied to defendant no.1 at Mumbai. The plaintiff has no cause of action. All the payments have already been made at Mumbai through cheques. While contesting the claim of the plaintiff on merits as well, it has been pleaded that Rajmohan Singh is not competent to sign and verify the plaint RSA No. 1237 of 2012 4 and instituted the suit. There was no settlement between the plaintiff and defendant no.1 as booking of the goods with defendant no.2 or any other carriers, the copy of invoice, the defendant no.1 will make payment of the amount mentioned in the bill/invoice. The consignee copy of that GR issued by defendant no.2 was to be sent to defendant no.1 who was to take delivery of goods after surrendering the consignee copy of GR. It has been denied that defendant no.1 lifted goods worth Rs.42,15,944/- from defendant no.2. In fact some times the plaintiff delivered the goods through Bank Bilty, Direct Bilty and Self Bilty to their authorised agent at Mumbai and it was to be decided by the authorised agent to whom the goods were to be delivered. The authorised agent Pardeep Nanglia used to collect the payments. All the payments have already been made to the authorised agent of the plaintiff. While denying all other averments made in the plaint, a prayer for dismissal of the suit has been made.
5. The defendant no.2 filed separate written statement and inter alia pleaded that this Court has no jurisdiction. The defendant no.2 had no office or branch at Phagwara at any time to accept direct booking of goods and consignment of any party or deal with them. The goods were booked by a general agent of various transport companies and the same were to be delivered to the concerned carriers either at Delhi or else where for transshipment for delivery to various destination in India so far as the answering defendant is concerned the goods so booked by the general agent/transporter, Ramesh Sharma carrying on business under the name and style of M/s Sharma and Company as also Phagwara Transport Corporation RSA No. 1237 of 2012 5 were usually handed over the goods to defendant no.2 at Delhi-UP border for further transshipment to Mumbai and other destinations. The plaintiff has a cause of action against defendant no.1 for the goods sold by the plaintiff. The defendant has been wrongfully impleaded as a party in the present case. Pardeep Nanglia and his concern of commission agents D.M.Anukampa and Pee Vee Textiles are necessary and proper parties. There has been novation of contract between the plaintiff and its commission agents and defendant no.1. The plaintiff has no cause of action against defendant no.2 as the goods stood transferred to purchaser/s on handing over the consignments to the carriers.
6. It has been further alleged that the recovery of balance price of the goods is between the seller and the buyer or the commission agent involved in the transaction and the matter does not concern with defendant No.2. The consignments covered by specific invoices and bills, according to the admission of the plaintiff, were supposed to be sent to the dealers and purchasers who were supposed to pay the invoice/bill amounts. Taking advantage of the goods receipts not being collected from it, the plaintiff has resorted to allegations of the dealer/purchaser lifting unspecified consignments and then has tried to cover up the actual transaction by only referring to goods receipts remaining with it. While contesting the claim of the plaintiff on merits as well, it has been pleaded that the plaintiff deliberately and with mala fide intention avoiding to give necessary particulars in respect of the alleged dealings for financial year 1999-2000 between it and defendant No.1 and clubbing all the alleged transactions RSA No. 1237 of 2012 6 together to come out with the meaningless and fictitious figure of Rs.73,42,712/-. The defendant No.2 has no concern with any such transaction between the plaintiff and defendant No.1. It was settled between the plaintiff and defendant No.1 that on booking of the goods with defendants No.2 or any other carrier copies of the invoices would be sent to defendant No.1 and on receipt of that invoice defendant No.1 was supposed to make payment mentioned in the bill/invoice the consignee copy of the goods receipts issued by defendant No.2 were to be sent to defendant No.1, who was then to take delivery of the goods after surrendering the consignee copies sent by the plaintiff and defendant No.2 were to deliver the goods booked after obtaining the consignee copy of the GR from defendant No.1 preposterous and of no consequence and contrary to facts. The plaintiff appointed Pardeep Nanglia as authorized agent and on his instructions, the goods were delivered to the dealer concerned. The consignee copy of the goods receipt were in most of the cases, in fact usually were not handed over. This was the mode of operation or practice resorted to by the plaintiff and its agent in Mumbai. Mr. Gurnam, Director of defendant No.2 visited both Phagwara and Mumbai and pursuant thereto specifically brought on record that the practice of delivery of goods being made as above noted as per instructions of D.M.Anukampa and Pee Vee Textiles. When the matter of clearance of consignment was cropped up, Mr. Gurnam Singh along with Mr. Ajit Bansal, Manager of plaintiff contacted Mr. Pardeep Nanglia and after discussion, the matter was settled and it was found that an amount of Rs.3,75,000/- was found payable. Pardeep Nanglia assured Ajit Bansal for RSA No. 1237 of 2012 7 payment of the said amount. The defendant No.2 without prejudice to its legal right, further assured the plaintiff that if for any reason Mr. Pardeep Nanglia did not make payment, then the payment would be made by defendant No.2. The details of letter No. GCC/HO/2002:108 dated 30.05.2002, are mentioned in the written statement
7. Earlier also, the said commission agent communicated to the plaintiff with a confirmatory copy to the answering defendant, wherein it was mentioned that goods have not been supplied to the defendants.
8. In response to the aforesaid letter, the plaintiff asked the defendant No.2 to provide competitive rates for different routes. The defendant No.2 was asked to deposit security amount of Rs.One lac. It was agreed that 15% per bill would be deducted from the freight payable to defendant No.2, where it was to be paid including incoming consignments. It has been further pleaded that once delivery of goods has been made to the agent of the carrier, the same be regarded being delivered to the branch under the provisions of Sale of Goods Act. All the goods were booked in the name of self were released as per instructions of the two agents of the plaintiff with knowledge of the plaintiff. There was no collusion between defendants. The record would show that the commission agent alone was responsible for the release of the goods. The plaintiff is not entitled to claim any amount from the defendant.
9. The plaintiff filed replications to the written statements, reiterating the averments made in the plaint and denying those of the written RSA No. 1237 of 2012 8 statement.
10. From the pleadings of the parties, following issues were framed :-
1. Whether the plaintiff company is a public Limited Company and Sh. Raj Mohan Singh is the director and general attorney for the company ? OPP
2. Whether the plaintiff got booked the cloth through defendant No.1 and defendant No.2 for delivery to defendant No.1 ? OPP
3. Whether the defendant No.2 delivered the goods to defendant No.1 without obtaining the consignee copy of good receipt ? OPP
4. Whether the plaintiff is entitled to the recovery of the amount of Rs.42,15,944/- on a/c of price of goods ? OPP
5. Whether the plaintiff is entitled to the interest of Rs.13,370/- ? OPP
6. Whether this Court has no jurisdiction to try the present suit ? OPD
7. Whether the suit is not maintainable ? OPD
8. Whether the suit is bad for mis-joinder & nonjoinder of parties ? OPD
9. Relief.
11. The parties have led their respective evidence on the aforesaid issues. After appraisal of the evidence, the trial Court decreed the suit of the plaintiff vide judgment and decree dated 23.5.2009 passed by Shri Harish Anand, PCS, Additional Civil Judge (Senior Division), Phagwara.
12. Feeling dissatisfied with the aforesaid judgment and decree dated 23.5.2009, the defendant preferred the First Appeal, which was heard by Mrs. Gurmeet Kaur, learned Additional District Judge, Kapurthala, RSA No. 1237 of 2012 9 who dismissed the appeal vide judgment and decree dated 28.11.2011.
13. Still feeling dissatisfied with the aforesaid judgments and decrees, the defendants have preferred the present regular second appeal.
14. The appellant in paragraph No.4 of the grounds of appeal, has mentioned that following substantial questions of law have arisen in the present regular second appeal :-
(a) Whether the suit for recovery of the amount for the goods supplied to defendant could be decreed without proving the dispatch of the goods to and receipt of the goods by the said defendant especially when the defendant has denied the transaction in the written statement itself ?
(b) Whether the courts below have misread/ignored the eviction on record ?
© Whether the plaintiff has discharged the onus to prove issue Nos.2 and 3 as per law ?
15. I have heard learned counsel for the appellant and have gone through the records of the case.
16. The learned counsel for the appellant has submitted that it is settled law that plaintiff has to prove his or her case. Plaintiff has failed to prove the facts that goods were actually supplied to the appellant. Even if the goods have been supplied to M/s Green Carriers & Contractors Pvt. Ltd. in the absence of any evidence of actually delivery of goods, the appellant cannot be held liable. It is further contended that both the Courts below have misread and misinterpreted the evidence. The plaintiff has to discharge the onus on issue Nos.2 and 3 for which they have utterly failed. So, the appeal is liable to be accepted.
17. I have carefully considered the said submission but do not find RSA No. 1237 of 2012 10 any force in that submission.
18. The regular second appeal can only be entertained in case any substantial questions of law has arisen. The only argument addressed during the course of argument is that plaintiff has failed to prove the delivery of goods. However, there is concurrent finding of fact recorded by both the Courts below that goods have been supplied to the appellant through M/s Green Carriers & Contractors Pvt. Ltd. The arguments now advanced are not available in the written statement. Impliedly, the appellants have admitted the factum of receipt of the goods. The appellant had taken the objection that since the goods were supplied at Mumbai and all the payments were made at Mumbai and as such the Courts at Phagwara has no jurisdiction. It has been further elaborated in the written statement that some of the payments have already been made at Mumbai through cheques. So, there is nothing on the file that both the Courts below have misread and misinterpreted the documents on the file. The plaintiffs have successfully discharged the onus on issue Nos.2 and 3. So, I have no hesitation in holding that no substantial question of law has arisen in the present regular second appeal.
Consequently, the appeal is without any merit and the same stands dismissed.
A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI )
JUDGE
March 14, 2012
sv
RSA No. 1237 of 2012 11