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2006 DIGILAW 2232 (RAJ)

Vijay Dal Mills v. Chaturbhuj

2006-07-17

MANAK MOHTA

body2006
Judgment Manak Mohta, J.-This appeal is directed against the Judgment and decree dated 04.02.1985 passed by the learned District Judge, Jodhpur in Civil Original Suit No.117/1979 whereby the suit filed by the plaintiff-respondent has been decreed with costs against the defendant-appellant. 2. Briefly stated the facts of the case are that the plaintiff -respondent filed a suit for recovery of 65,000/-against the defendant-appellant on the ground that he sold 197 bags of Moong (Agriculture Product). It was alleged in the plaint that the transaction was settled through Mohanlal Dalal with the partner of the defendant-firm Sheshmal for purchasing 97 Bags of “Moong” @ Rs.305/-per qntl. and 100 bags of “Moong” @ Rs. 321/-per qntl. (ST paid). According to the contract, the plaintiff delivered 97 bags of Moong to the defendant-mills at Jodhpur vide Bill No.718 dated 22.02.1979 amounting to Rs. 27,230.20 and rest of 100 bags of Moong were delivered to the defendant-mills from Bhinmal through Choudhary Transport Company vide Bill No.719 dated 22.02.1979 amounting to Rs.32,100/-. Further according to the plaint, the rate of interest was settled between the parties 18% per annum on delayed payment. Later on, it was agreed and reduced to 15% per annum. It was also alleged in the plaint that the plaintiff contacted on phone with defendant and his Dalal Mohanlal for the payment of the amount of the said goods. On 29.3.1979, he personally came to Jodhpur and asked the defendant to make payment of the bills. It is further alleged in the plaint that the partner of the defendant Sheshmal acknowledged the dues, also made entries in the books of account of the plaintiff , and assured to make payment Rs.58,430.10 as settled by him and admitted to pay interest @ 15 % p.a. It is further stated that payent was not made inspite of demand. The plaintiff gave a legal notice through his Counsel Shri Ram Ratan Nagori for the payment of entire due amount. Inspite of it, the defendant-firm did not make any payment, therefore, the plaintiff preferred a suit for recovery of cost of the goods and interest in the Court of learned District Judge, Jodhpur for recovery of Rs.65,000/-. 3. A reply to the plaint was filed by the defendant. It was admitted therein that the plaintiff agreed to purchase 303 qntl. of Moong but some dispute arose with regard to rate of Moong. 3. A reply to the plaint was filed by the defendant. It was admitted therein that the plaintiff agreed to purchase 303 qntl. of Moong but some dispute arose with regard to rate of Moong. The defendant in his reply also admitted the receipt of goods but raised dispute that the goods were not supplied as per the sample shown at the time of transaction. It was stated that due to inferior quality of goods, later on, it was agreed between the parties that the defendant would prepare dal of the Moong and sold it in the open market and whatever loss will incur, the plaintiff will be responsible. The goods could not be sold and remained with the appellant. It was further stated that the defendant is not liable to pay any amount and prayed that the suit may be dismissed. 4. On the basis of the pleadings of the parties, the following issues were framed:- 5. From the side of the plaintiff , the statements of Chaturbhuj (PW 1), Mohanlal (PW 2) and Multan Mal (PW 3) were recorded and certain relevant documents Ex.1 to Ex.19 were exhibited. In defence, the statements of Bhanwarlal(DW 1), Dhokal Singh (DW 2) and Pratap(DW 3) were recorded. The defendant produced document Ex.A/1. 6. After hearing the parties, the learned trial Court decided the issues in favour of the plaintiff and decreed the suit for original cost of Moong (goods) Rs.58430.10 plus interest @ 15% per annum and cost of notice etc. total Rs.65,000/-against the defendant vide Judgment and decree dated 04.02.1985. 7. Being aggrieved by the Judgment and decree dated 04.02.1985 passed by the learned District Judge, Jodhpur, the defendant-appellant has filed this appeal. 8. I have heard learned Counsel for the defendant-appellant and have carefully perused the record of the case. Despite service, the defendant did not choose to appear before this Court at the time of hearing. 9. During the course of arguments, the learned Counsel for the appellant submitted that the learned lower Court has not properly considered the material and has given erroneous finding on the issues and wrongly decreed the suit in favour of the plaintiff . It was contended that on behalf of the appellant, three important witnesses were produced. 9. During the course of arguments, the learned Counsel for the appellant submitted that the learned lower Court has not properly considered the material and has given erroneous finding on the issues and wrongly decreed the suit in favour of the plaintiff . It was contended that on behalf of the appellant, three important witnesses were produced. DW 1-Bhanwarlal has categorically stated that the quality of goods supplied was not as per sample but inferior, thus, that was not accepted and as per direction of the plaintiff , the dal was prepared from Moong and that is lying. Likewise, the statements of DW 2 Dhokal Sisngh (Mistry) and DW 3 Pratap (Chowkidar) are also supporting the same but these statements were not properly evaluated. It was contended that sufficient opportunity to produce other witnesses was not given by the learned lower Court. Thus, the appellant cannot be made responsible for the cost of goods, therefore, it was prayed that the Judgment of the learned lower Court may be quashed and set aside and the appeal may be allowed. 10. I have considered the contentions raised by the learned Counsel and perused the findings on issues and conclusion drawn thereon. From the side of the defendant, DW 1 Bhanwarlal has stated that the transaction of purchasing Moong was made with him. He denied the presence of Mohan Dalal, no other independent witness has been produced. In his statement, he admitted the purchase of goods but he further stated that the quality of Moong was not as per sample as shown at the time of transaction. The goods were of inferior quality, therefore, at the instance of the plaintiff , the dal was prepared. In his statement, he has referred to letter Ex.A/1 but neither this letter has been sent by registered post nor it has been properly proved by any other witness, thus, it is not reliable. DW 2 Dhokal Singh and DW 3 Pratap are Mistry and Chowkidar of the factory respectively. From their statements, the contentions are not proved. Sheshmal, is the person who has made the contact with the plaintiff and further acknowledged the due amount has not been produced from the defendants side. DW 1 Bhanwar Lal, in his statement, has admitted that Sheshmal is his brother. From their statements, the contentions are not proved. Sheshmal, is the person who has made the contact with the plaintiff and further acknowledged the due amount has not been produced from the defendants side. DW 1 Bhanwar Lal, in his statement, has admitted that Sheshmal is his brother. Further in cross-examination, he has shown his ignorance with regard to settlement of accounts by Sheshmal with the plaintiff and making of signature on Ex.13. He was the best person who could have explained the things but he has not been produced. No efforts were made to produce Sheshmal. From the record, it is revealed that the defendant tried to produce witness Anopchand only. The contention of the defendant that proper opportunity to produce the witness was not given, is not sustainable. Thus, the contentions raised in appeal are not tenable. From the side of the plaintiff-respondent, PW 1 Chaturbhuj (owner of the firm), and PW 2 Mohanlal (Dalal), who was the person in between the transaction have appeared and corroborated the facts. In addition to these witnesses, one more witness PW 3 Multan Mal, in whose presence, the partner of the defendant-firm Sheshmal acknowledged the due amount and made signature in the Accounts Book (Ex.13) of the plaintiff-firm. Thus, on the basis of the material, the learned Court-below has rightly concluded the issues and decreed the suit in favour of the plaintiff that should be maintained. 11. In the result, the appeal is liable to be rejected and it is hereby rejected. The Judgment and decree of the learned lower Court is confirmed. No order as to costs.