Andhra HC (Pre-Telangana)
M/S.Siddeshwara Trading Company vs The District Manager, Food Corporation ... on 19 November, 2012
Author: C.V.Nagarjuna Reddy
Bench: C.V.Nagarjuna Reddy
THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY
Writ Petition No.943 of 2010
19.11.2012
M/s.Siddeshwara Trading Company
The District Manager, Food Corporation of India, Near Karimnagar Bus
Stand,Karimnagar and others
^Counsel for the Petitioner: Sri A.Prabhakar Rao
!Counsel for respondents: Smt.Chintalapudi Lakshmi Kumari
<Gist:
>Head note:
?Cases referred:
1.(2009) 16 SCC 722
ORDER:
This writ petition is filed for a mandamus to declare the action of the respondents in deducting a sum of Rs.1,07,791/- from out of Rs.5,00,933/- covered by bill bearing No.14400, dated 15.12.2009, payable to the petitioner towards the recovery of amount payable by M/s.Mayur Traders, Huzurabad C/o.Omkar Modern Rice Mill as illegal and arbitrary.
I have heard Sri A.Prabhakar Rao, learned counsel for the petitioner, and Smt.Chintalapudi Lakshmi Kumari, learned Standing Counsel representing the respondents.
The petitioner averred that it is a proprietary concern belonging to the deponent of the affidavit, by name, Smt.N.Sujatha, W/o Tirupathi. It is stated in the affidavit that she is carrying on business at Omkar Modern Rice, Huzurabad from 19.11.2007 in the name and style of M/s.Siddeshwara Trading Company. That she has purchased 303.409 Mts of paddy on payment of minimum support price + Rs.50/- from the farmers and got the paddy milled in Omkar Rice Mill, Huzurabad and derived the resultant rice of 203.284 Mts. The Collector (Civil Supplies) on consideration of the application submitted by the petitioner issued certificate on 26.11.2009, authorising her to deliver 152.463 MTs of raw rice to the respondent-Corporation. The petitioner averred that it has delivered 270 quintals of rice to the Corporation vide bill bearing No.14400, dated 15.12.2009, and another quantity of 270 quintals of rice vide bill bearing No.14842, dated 18.12.2009. From out of the amounts payable to the petitioner, the respondents have deducted a sum of Rs.1,07,791/-. When the petitioner questioned the said action, the respondents issued proceedings, dated 18.12.2009, wherein it is mentioned that the said amount was deducted towards the excess cost paid to M/s.Mayur Traders, Huzurabad, by applying the price of rice for the year 2001-2002 instead of 2000-2001. This action is questioned in this writ petition.
On behalf of the respondents, respondent No.2 has filed a counter affidavit, wherein it is inter alia stated that the petitioner is a proprietary concern doing the business in the name and style of Omkaram Modern Rice Mill, Huzurabad, Karimnagar District from 2005 onwards, that prior to the petitioner came into existence, M/s.Mayur Traders was carrying on the business from 1996 to 2004, that the said M/s.Mayur Traders was owned by one Tirupathi, who is no other than the petitioner's husband. It is further averred that the said Tirupathi made a deficit supply of 3,050 quintals of rice towards supply of levy rice to the Corporation during the crop year 2000-2001 which was made up in the crop year 2001-2002 during which minimum support price is Rs.985/- per quintal for Grade-A quality as against Rs.935.10 ps for common category. That the said M/s.Mayur Traders has raised the bills at the MSP fixed for 2001-2002 for deficit quantity of 3,050 quintals liable to be supplied during the previous year and that accordingly payments were made by applying the said price. Subsequently, it was found that the Corporation has paid for the deficit quantity as per the MSP fixed during the year 2001-02 and that therefore, it has paid an excess of Rs.1,07,791/-. In order to recover the said excess payment, the same was withheld from the amount payable to the petitioner and adjusted the same towards the excess payment made to M/s.Mayur Traders. It is further stated that due to certain irregularities committed by the proprietor of M/s.Mayur Traders, its commercial tax licence was suspended in the year 2004 and that in order to continue the business, the petitioner was brought into existence. It is not in dispute that M/s.Siddeshwara Trading Company, the petitioner herein, and M/s.Mayur Traders are two different entities. While the former belongs to Smt.N.Sujatha, its proprietrix, the latter belongs to her husband. Except pleading that the two firms are owned by the wife and husband, the respondents are unable to substantiate their action with reference to any provision of law. The law does not presume that wife and husband are joint in conducting business even if they are running their own businesses separately. Unless the respondents are able to show that Smt.N.Sujatha is only a name lender for her husband, Sri Tirupathi, and that she has been running the business ostensibly for her husband, they cannot be permitted to treat the liability of Sri Tirupathi as the liability of his wife, Sujatha.
The learned Standing Counsel for the respondents placed reliance on the judgment of the Supreme Court in Surjit Singh v. Mahanagar Telephone Nigam Limited1. A perusal of the said judgment shows that the telephone connection of the husband was disconnected for the default committed by his wife having a separate telephone connection. While interpreting Rule 443 and 2(PP) of the Telegraph Rules, 1951 the Supreme Court held that where two relatives are living in the same house, a distinction has to be drawn between a telephone line in the name of a person who is economically dependant on another and the telephone line in the name of a person who has an independent source of income from which he is paying the telephone bills and that in case of the former i.e., a person who is economically dependent on another who is paying his telephone bills, the telephone line in the name of such other relative on whom the subscriber is dependent can be disconnected for non-payment of the telephone bills of the nominal subscriber.
As noted above, it is not the pleaded case of the respondents that Smt.N.Sujatha, the proprietrix of M/s.Siddeshwara Trading Company, is only a name lender and that she has no financial capacity to run the business. By the mere fact that her husband, who ran the business through an independent entity, fell in arrears, the respondents cannot saddle this liability on his wife. As the law recognizes the right of every citizen to carry on business on his/her own, no presumption can be drawn that wife is always a name lender for her husband. As no material has been placed before this Court to show that Smt.N.Sujatha is an ostensible owner and that her husband, Tirupathi, is the real owner, the action of the respondents cannot be sustained. For the above-mentioned reasons, the respondents are directed to release the sum of Rs.1,07,791/- to the petitioner within a period of two months from the date of receipt of a copy of this order. This order, however, does not preclude the respondents from recovering the said sum from Sri Tirupathi, proprietor of M/s.Mayur Traders.
The writ petition is accordingly allowed.
As a sequel to disposal of the writ petition, W.P.M.P.No.1190 of 2010 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 19th November, 2012