Karnataka High Court
M/S Paparam Bricks And Tiles (1976) vs The Block Development Officer on 2 January, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2nd DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
REGULAR FIRST APPEAL NO.802 OF 2002
BETWEEN:
M/s. Paparam Bricks & Tiles (1976)
Hunsur road, Hinkal,
Mysore.
Represented by its proprietor.
...APPELLANT
(By Smt. Nalina Mayegowda, for
M/s. Poovayya & Co. Advs.)
AND:
1. The Block Development Officer,
Ponnampet,
South Kodagu.
2. The Chief Secretary,
Government of Karnataka,
Bangalore.
... RESPONDENTS
(By Sri B.J. Somaji, Adv. for R1;
Sri Nasrulla Khan, HCGP for R2)
This RFA is filed under Order 41 Rule 1 of CPC
against the Judgment and Decree dated 10.6.2002 passed
in O.S.No.55/1996 on the file of the Civil Judge (Sr.Dn.),
Virajpet, dismissing the suit for recovery of money.
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This RFA having been reserved, the Court delivered
the following:
JUDGMENT
Appellant - plaintiff, filed the suit against respondents - defendants, to pass a money decree for recovery of `1,69,560/- with interest and cost, by stating that, on 25.4.1994, an order was placed by the 1st defendant over phone and was instructed to supply 72,000 numbers of roofing tiles, at the rate of `2.75 per tile, including the transportation and unloading charges and that it supplied between 24.5.1994 to 4.6.1994, the tiles to defendant No.1, under 18 consignments, which was acknowledged on the delivery notes. It was further averred that the 1st defendant is due in a sum of `2,16,000/- towards supply of tiles and when persistently demanded, only `10,000/- was paid. Alleging that there is an outstanding amount of `1,69,560/-, the suit was instituted for recovery.
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2. 1st defendant filed a written statement contesting the suit. It averred that no goods had been received by it from the plaintiff. According to defendant No.1, an order was placed for supply of tiles with one Sri K.N.Sughandhan, upon the acceptance of his tender by the Deputy Commissioner, Madikeri. It was averred that, Mr. Sughandhan supplied the tiles under the scheme "Neralina Bhagya" and the averments made in the plaint that the 1st defendant placed an order over the telephone for supply of tiles was denied. It was averred that, despite replying to the notice, plaintiff failed to produce any document for having got an order for supply of tiles and that the amount paid to the plaintiff on 3.1.1996 was as per the direction of the Deputy Commissioner and that there is no nexus between the plaintiff and defendants. It was further averred that the claim of the plaintiff is false and baseless and that the defendants are not liable to pay any amount.
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3. On the pleadings of the parties, learned Trial Judge raised the following issues:
1. Whether the Plaintiff proves that 72,000 tiles were supplied to the 1st Defendant by it in response to a phone message received by it from the First Defendant on 25.4.1994?
2. Whether the First Defendant proves that the contract for supply of tiles was only between him and one Sughandhan and not with the Plaintiff?
3. Whether the Plaintiff is entitled to the amount claimed in the Suit?
4. What decree or Order?
Addl. Issue:-
Whether the First Defendant proves that the Suit is bad for non-joinder of Sugandhan?
4. At the trial, plaintiff examined 2 witnesses and marked 27 documents. Evidence of PW-1 has to be ignored, since he died prior to his cross-examination. For the defendants, two witnesses were examined, through whom Exs.D1 to D29 were marked. Considering the rival contentions and the record of the suit, learned Trial Judge answered issue Nos.1 and 3 in the negative and issue No.2 and Additional issue in the affirmative and as a result, the suit was dismissed.
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5. Smt. Nalina Mayegowda, learned counsel for the appellant, firstly, contended that the Trial Court has not considered the delivery notes and acknowledgments issued by the defendants and the payment of `90,000/-. Secondly, the Trial Court has not considered the evidence of the defendants, wherein, the witnesses have admitted that they do not know as to who signed the delivery notes and that they have not denied the signatures and seal of the defendants on the delivery notes marked as Exs.P1 to P18. Thirdly, the plaintiff has supplied the tiles to defendant No.1 between 24.5.1994 to 4.6.1994 and that, Mr.Sugandhan had supplied only 84,000 tiles out of 1,72,000 tiles, which he was supposed to deliver as per the tender document. Fourthly, the appreciation of evidence by the Trial Court is perverse and illegal. Lastly, the delivery of tiles under Exs.P1 to P18 being well established, plaintiff is entitled to the relief prayed in the suit on the anvil of Ss.70 & 72 of the Indian Contract Act ('Act' for short). Reliance was placed on the decisions reported in AIR 1962 SC 779 (State of West Bengal Vs. 6 M/s B.K.Mondal and Sons) and AIR 2006 Punjab and Haryana 142 (Municipal Committee, Pundri and Another Vs Bajrang Rao Nagrath and Another).
6. Sri B.J. Somayaji, learned advocate and Sri Nasrulla Khan, learned HCGP, appearing for the respondents, on the other hand contended that there was no contract between the appellant and the 1st respondent for supply of tiles and that the appellant has failed to prove its case with regard to the supply of tiles and hence, the appellant is not entitled to sue the respondents for payment towards alleged supply of tiles. Learned counsel further submitted that, on facts, as found by the Trial Court, with reference to the evidence placed on record, the appellant is not entitled to any relief. Learned counsel made submissions in support of the view taken in the matter by the learned Trial Judge and sought dismissal of the appeal.
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7. Perused the record. In the light of the rival contentions of the parties, the point for determination is, whether the Trial Court is justified in dismissing the suit?
8. The Trial Court has found that the claim for the sum of money for the price of goods - tiles, cannot be upheld, primarily because of lack of an enforceable contract and there being no credible proof with regard to the plaintiff having delivered the tiles to the 1st defendant. The Trial Court in its judgment, impugned herein, has made detailed reference to the oral and documentary evidence brought on record by the parties and after appreciation of the material evidence and circumstances of the case has dismissed the suit.
9. Learned advocate for the appellant did not deny the fact that there is no written contract between the appellant and the 1st respondent for delivery of tiles. She submitted that the order for supply of tiles was placed over a phone on 25.04.1994, in pursuance of which, 72,000 numbers of roofing tiles was supplied under 18 8 consignments, between 24.05.1994 and 04.06.1994 and that the delivery obtained has been acknowledged on the reverse of the delivery notes, marked as Exs.P1 to P18. Learned counsel further submitted that, in view of the part payment made, the appellant has to be paid the price of the tiles supplied, by reason of the provision contained in S.70 of the Act.
10. In reply, learned advocates for the respondents contended that the case now sought made out on the basis of the provisions contained in Ss.70 & 72 of the Act has to fail, since there is no foundation in the plaint in the form of pleading/s. They further submitted that, any amount of proof without a pleading is of no legal consequence and hence the appeal has to fail.
11. The appellant/plaintiff, to get a money decree, must succeed or fail on its own case and cannot take advantage of weakness in the respondents'/defendants' case. The mandatory ingredients to support the cause of action under S.70 of the Act are:
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(i) The goods are to be delivered lawfully or anything has to be done for another person lawfully;
(ii) The thing done or the goods delivered is so done or delivered not intending to do so gratuitously;
(iii) The person to whom the goods are delivered enjoys the benefit thereof.
To make out a case under the said provision, there has to be pleading in the plaint. Unless the plaintiff has pleaded the said ingredients and proved all the three ingredients, it is not entitled to claim any sum in respect of or to restore the things so done or delivered.
12. Perusal of the plaint shows that there is no pleading in consonance with S.70 of the Act. Adjudication of a dispute by a Civil Court in a civil suit between the parties is governed by the Rules of pleadings. The evidence adduced through PW-2, even otherwise, does not meet the mandatory ingredients required, noticed supra.
13. Evidence of PW-1 has to be ignored, since he was not available for cross-examination. Evidence of PW-2 10 shows that the order for supply of tiles was received by cashier Shylesh Kumar (PW-1). No material has been produced in proof of the receipt of telephonic order and the supply of tiles in pursuance of such telephonic order. PW-2 has admitted that the day book and order book have not been maintained and that there is no record maintained with regard to the supplies made as per Exs.P1 to P18. PW-2 has admitted that he is unable to identify the signatures appearing on Exs.P1 to P18. He has admitted that, ordinarily, when an order is received from a Government/Department, for supply of tiles, an agreement would be entered into. In the instant case, there is no agreement and no material has been brought on record in proof of any order having been placed by defendant No.1 for supply of 72,000 numbers of tiles and the supply having also been made and acknowledged. Exs.P1 to P18 having been disputed and the same has not been proved by the plaintiff/appellant. In view of the inability of PW-2 to identify the signatures appearing on Exs.P1 to P18, 11 plaintiff/appellant has failed to prove the delivery of tiles to defendant No.1.
14. In the case of M/s B.K.Mondal and Sons (supra), the suit was against the party, who, admittedly, had been directly benefitted from the works done by the plaintiff unlike in the case on hand. The facts are thus distinguishable. Relationship between the parties as has been found in the said decision does not exist between the parties in the instant case.
15. The plaintiff cannot succeed on the weakness of his adversary's defence. The plaintiff has to succeed on the strength of his own case. Since the claim of the plaintiff, on the face of it, is not sustainable in law, the appellant's suit has rightly been dismissed.
16. The appreciation of evidence of the trial Court is neither perverse nor illegal. The Trial Court has taken note of the material evidence and has correctly appreciated the same. Hence, no interference is warranted. 12
For the foregoing reasons, the appeal being devoid of merit is dismissed. However, in the facts and circumstances of the case, the parties are directed to bear their respective costs.
Sd/-
JUDGE sac* Ksj/-