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2009 DIGILAW 1695 (PNJ)

Mukesh Kumar v. Continental Construction Limited

2009-09-24

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This appeal, is directed, against the judgment and decree, dated 13.10.2005, rendered by the Court of Civil Judge, (Senior Division), Karnal, vide which, it dismissed the suit of the plaintiffs (now appellants), and the judgment and decree, dated 07.03.2006, rendered by the Court of District Judge, Karnal, vide which, it dismissed the appeal. 2. According to the plaintiffs/appellants, they had supplied sand to defendants, vide bill No. 2, dated 18.06.93, worth Rs. 52,289.60/-, vide bill No. 4, dated 28.06.1993 for an amount of Rs. 73,427.20/-, and vide bill No. 6, dated 06.07.1993 for an amount of Rs. 11,417.60/-. It was stated that, in this manner, the sand for a total amount of Rs. 1,37,134/-, was supplied, to the defendants, by the plaintiffs/appellants. The sand, was received, and receipts were duly signed, by the employees of defendants. The defendants, did not make payment of the amount, due against them. A legal notice, was served, upon them, for payment of the amount, but to no avail. On the final refusal of the defendants, to make payment of the amount, due against them, left with no other alternative, a suit for recovery with interest, was filed. 3. The defendants/respondents, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was stated that no contract, was ever entered into between the parties, for the supply of sand. It was further stated that the suit, was barred, by time. It was further stated that, there was no jural relationship, between the parties. 4. On the pleadings of the parties, the following issues were struck :- (i) Whether the plaintiff is entitled to recover the suit amount of Rs. 2,11,187/- being costs of the sand of Rs. 1,37,134.40/ and interest @ 18% per annum of Rs. 74,052.60/-, as claimed for ? OPP. (ii) Whether the suit is within time ? OPD. (ii) Whether the plaintiffs have got no cause of action to file the present suit as mentioned in P.O. of the written statement in para No. 2 ? OPD. (iv) Whether the present suit is an abuse of the process of the Court ? OPD. (v) Relief. 5. After hearing the Counsel for the parties and on going through the evidence and record of the case the trial Court, dismissed the suit of the plaintiffs. 6. OPD. (iv) Whether the present suit is an abuse of the process of the Court ? OPD. (v) Relief. 5. After hearing the Counsel for the parties and on going through the evidence and record of the case the trial Court, dismissed the suit of the plaintiffs. 6. Feeling aggrieved, an appeal was preferred, by the plaintiff/ appellants, which was dismissed, by the Court of District Judge, Karnal, vide judgment and decree dated 07.03.2006. 7. Still feeling dissatisfied, the instant Regular Second Appeal has been filed by the plaintiffs/appellants. 8. I have heard the Counsel for the parties and have gone through evidence and record of the case carefully. 9. The following substantial questions of law arise in this appeal for the determination of this Court :- i) Whether the Courts below, recorded perverse findings, in the absence of any plea, having been raised by the defendants, in the written statement that M/s. Maheshwari and Company, was an unregistered firm and as such the suit filed by its partners to enforce a right arising out of a contract was not maintainable being barred by Section 69(2) of the Partnership Act? ii) Whether the Courts below recorded a perverse finding, on misreading and misappreciation of evidence that no order was placed, by the defendants with the plaintiffs for the supply of sand nor they supplied the same for the amount claimed by them (plaintiffs)? 10. The Counsel for the plaintiffs/appellants, submitted that no plea, was taken by the defendants, in the written statement, that M/s. Maheshwari and Company, was an unregistered firm, and the plaintiffs/appellants, being the partners thereof, were not competent to maintain a suit. He further submitted that even no plea was taken arising out of the contract. He further submitted that on the other hand the defendants, in the written statement, took up the plea that there was no contract, between the parties, for the supply of sand, nor any sand, was supplied. He further submitted that even the defendants, did not produce their books of account, and as such, withheld the best piece of evidence, regarding the supply of sand and the amount due against them. He further submitted that the Courts below, were wrong, in dismissing the suit of the plaintiffs/respondents, on the ground, that the same was not maintainable. He further submitted that even the defendants, did not produce their books of account, and as such, withheld the best piece of evidence, regarding the supply of sand and the amount due against them. He further submitted that the Courts below, were wrong, in dismissing the suit of the plaintiffs/respondents, on the ground, that the same was not maintainable. He also placed reliance on Purushottam & another v. Shivraj Fine Art Litho Works & others, 2007(1) R.A.J. 941 : 2007(1) RCR (Civil) 108 (SC), M/s. Raptakos Brett & Co. v. Ganesh Property, 1998 (4) RCR (Civil) 208 (SC), M/s. Haldiram Bhujiawala another v. M/s. Anand Kumar Deepak Kumar & another, AIR 2000 Supreme Court 1287, Kerala Arecanut Stores v. M/s. Ramkishore & Sons & another, AIR 1975 Kerala 144, V. V. Textiles v. M/s. Mahavir Fabrics, 2002(1) Civil Court Cases 475 (Madras), Rao Sahib v. Rangnath Gopalrao Kawathekar (Dead By LRs) & others, (1972) 4 Supreme Court Cases 181, State Bank of India & others v. S. N. Goyal, 2008(3) SCTI, Deputy Commissioner of Sales Tax (Law), Board, of Revenue, Taxes, Ernakulam, Kerala v. M/s. Kaycee Plantations and Cannings, Trichur, etc., AIR 1981, Supreme Court 976 and R. Kuppayyee and another v. Raja Gounder, 2004 (1) RCR (Civil) 316 in support of his contentions. He further submitted that the judgments and decrees of the Courts below, being illegal, are liable to be set aside. 11. On the other hand, the Counsel for the respondents submitted that it was M/s. Maheshwari and Company, which allegedly supplied the sand, to the defendants. He further submitted that no order was placed with the plaintiffs regarding the supply of sand nor they ever supplied the same to the defendants, in the sum claimed, by them, in the plaint. He further submitted that it was for the plaintiffs to describe in the plaint, as to whether, M/s. Maheshwari and Company, which allegedly supplied the sand to the defendants, for the amount, mentioned in the plaint, was a sole proprietorship concern a partnership firm or a private limited Company. He further submitted that it was for the plaintiffs to describe in the plaint, as to whether, M/s. Maheshwari and Company, which allegedly supplied the sand to the defendants, for the amount, mentioned in the plaint, was a sole proprietorship concern a partnership firm or a private limited Company. He further submitted that this fact formed part of the cause of action and if the plaintiffs, did not plead in the plaint, as to in which capacity, they were filing the suit and what was the status of M/s. Maheshwari and Company, referred to above, even if no objection was taken by the defendants, in the written statement as they could not possibly take the same in the absence of correct description, mentioned in the plaint, but if M/s. Maheshwari and Company was proved during the trial of the case, to be an unregistered firm, and the plaintiffs being its unregistered partners, then the Court could take notice thereof, and certainly dismiss the suit, being not maintainable. He further submitted that there was no necessity of production of the account books of the defendants, as it was for the plaintiffs to prove their case, and only after they had discharged their initial onus that the onus, that the onus lay upon the defendants, to disprove the same. He further submitted that non-production of books of account by the defendants did not give rise to an adverse interference, against them. He further submitted that the Courts below, recorded correct findings, in dismissing the suit, holding that the same was not maintainable and that the plaintiffs did not supply any sand, to the defendants, and, as such, were not entitled to the recovery of the amount. He further submitted that the judgments and decrees of the Courts below, being legal and valid, were liable to be upheld. He placed reliance on Andhra Pradesh Co-op. Wool Spinning Mills Ltd. and another v. G. Mahanandi & Company & others, 2003(3) Civil Court Cases 560 (Andhra Pradesh High Court), a case decided by a Division bench of that Court, and Puran Mal Ganga Ram Firm v. The Central Bank of India Ltd., AIR 1953 Punjab 235, a case decided by a Division Bench of this court in support of his contentions. 12. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion the appeal is liable to be dismissed with costs, for the reasons to be recorded, hereinafter.In Madvan Nair v. Bhaskar Pillai, (2005) 10 SCC 533, Harjeet Singh v. Amrik Singh, (2005) 12 SCC 270. H.P. Pvarejan v. Dasappa, 2006(1) R.C.R.(Civil) 646 : JT 2006(2) SC 228, and Gurdev Kaur and others v. Kaki and others, 2006(2) R.C.R.(Civil) 561 : JT 2006 (5) SC 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law laid down was that the High Court has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a "third trial on facts" or "one more dice in the gamble." It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The first question that arises for consideration is as to whether the orders were placed, by the defendants for the supply of sand and if so with whom and who supplied the sand for the amount claimed in the plaint. Vinod Kumar, P.W.-1, proved the bills, carbon copies, whereof are Ex. Pl to Ex. P3 and Ex. P7 to P8, regarding the supply of sand to the defendants. On the top of these bills, words "Maheshwari" and Company, outside Power House, Ladwa (Kurukshetra) are written. The bills are in the name of M/s. Continental Construction Ltd., Haryana Road Project Highway No. 1, Camp No. II, Gharunda. On these bills the description of the goods, the weight thereof, and the truck number through which same were supplied, were written. Ex. P5/A is a copy of the letter. Ex. P-9 (original), which was written by M/s.. Continental Construction Ltd. to M/s. Maheshwari and Company. From these documents, it is evident that if there was any alleged contract, that was between M/s. Maheshwari and Company and M/s. Continental Construction Ltd., referred to above. There was no contract whatsoever regarding the supply of sand, between the plaintiffs, and the defendants. Ex. P-9 (original), which was written by M/s.. Continental Construction Ltd. to M/s. Maheshwari and Company. From these documents, it is evident that if there was any alleged contract, that was between M/s. Maheshwari and Company and M/s. Continental Construction Ltd., referred to above. There was no contract whatsoever regarding the supply of sand, between the plaintiffs, and the defendants. It was for the plaintiffs to describe, in the plaint, as to what was their capacity in M/s. Maheshwari and Company. It was also required of them to describe in the plaint as to whether M/s. Maheshwari and Company was a partnership firma private limited company, a limited company or a proprietorship concern. Neither the alleged order for supply of sand, was placed, with them, nor did they supply the sand, vide the bills aforesaid to M/s. Continental Construction Ltd. The Courts below, were, thus, right, in holding, that the suit for recovery, could not be maintained by the plaintiffs. 13. Now, the next question, that arises, for consideration, is as to whether M/s. Maheshwari and Company, though the status thereof, was not described, in the plaint, as a partnership firm, proprietorship concern, a private limited company or a limited company was proved to be an unregistered partnership firm and the plaintiffs were proved to be its unregistered partners, during the trial of the case. Vinod Kumar, one of the plaintiffs who appeared as P.W. 1, during his cross-examination, admitted that he and his brother Mukesh Kumar, P.W. 2, were the partners of M/s. Maheshwari and Company. He further admitted that a partnership deed, was written, in the year 1993. He further admitted that this partnership firm, was an unregistered firm, at the time of filing of the suit. He admitted, during the course of cross- examination, that he and Mukesh Kumar, had filed the suit, on behalf of M/s. Maheshwari and Company, a partnership firm. From the admission,. made by Vinod Kumar, one of the plaintiffs, when he appeared as, P.W. 1, during the course of cross- examination, it was proved that M/s. Maheshwari and Company, which allegedly supplied sand, to the defendants, was an unregistered firm, at the time of filing. It the suit. From the admission,. made by Vinod Kumar, one of the plaintiffs, when he appeared as, P.W. 1, during the course of cross- examination, it was proved that M/s. Maheshwari and Company, which allegedly supplied sand, to the defendants, was an unregistered firm, at the time of filing. It the suit. Vinod Kumar, one of the plaintiffs, when appeared as P.W.1, during the course of cross-examination, also stated that no written order, was placed, for the supply of the goods, but only an oral order, was placed, by M/s. Continental Construction Ltd., as a result whereof, the goods were supplied to it. This clearly goes to show that the right, which was sought to be enforced, by the plaintiffs, arose out of a contract. The mere erroneous admission, made by the defendants, in the written statement, that there was no alleged contract, hardly mattered. In these circumstances, it is to be seen, as to whether, the, filed by an unregistered firm, or by the partners of an unregistered to enforce a right, arising out of a contract, was maintainable or not. Section 69(2) of the Partnership Act, creates a complete bar to the institution of a suit, by an unregistered firm, to enforce a right, arising out a contract, against a third party. Similar principle of law, was laid down, in Purshushottam and anothers case (supra), relied upon by the Counsel for the appellants, and Puran Mal Ganga Ram Firms case (supra), relied upon by the Counsel for the respondents. The Courts below were thus, right in holding that the suit by the unregistered firm, M/s. Maheshwari and Company through the plaintiffs, its unregistered partners, to enforce a right, arising out of a contract, was barred by the provisions of Section 69(2) of the Indian Partnership Act. 14. The next question that arises for consideration is as to what is the effect of non-taking of a plea in the written statement that the suit having been filed by the unregistered partners of an unregistered partnership firm, was not maintainable. In Andhra Pradesh Co-op. Wool Spinning Mills Ltd.s case (supra) decided by a Division Bench of the Andhra Pradesh, an objection was not taken, in the written statement that the suit filed by an unregistered partnership firm was not maintainable. In Andhra Pradesh Co-op. Wool Spinning Mills Ltd.s case (supra) decided by a Division Bench of the Andhra Pradesh, an objection was not taken, in the written statement that the suit filed by an unregistered partnership firm was not maintainable. The Division Bench, in the aforesaid case held that, even in the absence of any objection, in the written statement the suit must fail as the firm is required to plead and prove registration. Not only this, in Sunderlal & amp; Sons v. Y. N. Singh, AIR 1976 Calcutta, 471 such context of the decree, obtained by an unregistered firm. The question was whether such a decree, could be executed. The learned Judge, held that the decree itself, being a nullity, could not be executed. The Counsel for the appellants, however, placed reliance on V.V. Textiles case (supra) decided by a Single Bench of the Madras High Court, that in the absence of any objection, having been taken, in the written statement, the same must be deemed to be waived. In view of the principle of law laid down in Andhra Pradesh Co-op. Wool Spinning Mills Ltd.s case (supra), decided by a Division Bench of the Andhra Pradesh High Court, no help can be drawn, by the Counsel for the appellants, from V. V. Textiles case (supra), which was decided by a Single Bench of the Madras High Court. The Courts below were thus right, in holding that even such a plea, is not taken, in the written statement, but it is proved during the trial of the case, the suit could still be held to be not maintainable. 15. The Counsel for the appellants, however, submitted that a case not pleaded, could not be made out from the evidence adduced. He placed reliance on order 6 of the Code of Civil Procedure, by relying on Rao Sahebs case (supra). The facts of the said case, are clearly distinguishable, from the facts of the instant case. In Bloom Dekor Limited v. Subhash Himat Lal Desai, (1994) 6 SCC 322, in paragraph 28, the Apex Court, held that by `cause of action it meant every fact, which, if traversed, it would be necessary for the plaintiff, to prove, in order to support his right, to a judgment of the Court. In Bloom Dekor Limited v. Subhash Himat Lal Desai, (1994) 6 SCC 322, in paragraph 28, the Apex Court, held that by `cause of action it meant every fact, which, if traversed, it would be necessary for the plaintiff, to prove, in order to support his right, to a judgment of the Court. In other words, the cause of action, is a bundle of facts, which it is necessary, for the plaintiff to prove, in order to succeed in the suit. In Jaswant Singh v. Custodian of Evacuee Property, New Delhi, AIR 1985 SC 1096, in paragraph 14, the Apex Court, held that a cause of action for a proceeding, has no relation, whatever to the defence which may be set up nor does it depend upon the character of the relief, prayed for, by the plaintiff or the applicant. It refers entirely to the grounds set forth, in the plaint, or the application as the case may be to the cause of action, or in other words, to the media upon which the plaintiff or the applicant, asks the Courts to arrive at a conclusion, in his favour. The principle of law, laid down, in these cases, is fully applicable, to the facts of the instant case. Even, in the absence of raising a plea, in the written statement, as the same could not be raised, as no plea, was taken by the plaintiffs, in the plaint, that the suit had been filed, on behalf of M/s. Maheshwari and Company, which was the unregistered firm, and they were the partners thereof, a case could be made out, by the defendants, that the suit was not maintainable. Had a plea been taken in the plaint, the same could either be admitted or repudiated, in the written statement. Once such a plea, was not taken, by the plaintiffs, in the written statement, the question of admission or repudiation thereof, in the written statement, did not at all arise. The submission of the Counsel for the appellants, being without merit, is rejected. 16. The Counsel for the appellants emphasised that there was no contract between the parties nor a suit was filed, to enforce a right, arising out of a contract and as such the bar of Section 69(2) of the Indian Partnership Act, did come into play. The submission is without force. 16. The Counsel for the appellants emphasised that there was no contract between the parties nor a suit was filed, to enforce a right, arising out of a contract and as such the bar of Section 69(2) of the Indian Partnership Act, did come into play. The submission is without force. Recovery was sought for the price of sand, which was supplied on the basis of order placed by the defendants with M/s. Maheshwari and Company. The right sought to be enforced, thus arose out of a contract. In Kerala Arecanut Stores case (supra) relied upon by the Counsel for the appellants, a suit was filed, by an unregistered firm for the recovery of money on dishonour of cheque endorsed, in favour of it. In these circumstances, it was held that the right sought to be enforced, did not arise out of a contract and therefore, the bar under Section 69(2), will not operate, in such a case. In Purshushottam and anothers case (supra), no doubt a suit was filed, by an unregistered firm, against a third party, but the right sought to be enforced, did not arise, out of a contract. It was, in these circumstances, that it was held that the bar of Section 69(2), did not at all apply. In M/s. Raptakos Brett. & Co. case (supra), a lease was created, which expired. Thereafter, the status of the tenant became that of a trespasser. In these circumstances, it was held that right to file a suit, directing the tenant to vacate the premises, did not arise out of a contract, but was a remedy under the general law. In M/s. Haldiram Bhujiawala & another case (supra)., no contract was entered into. between the plaintiffs, and the defendants. In these circumstances, it was held that a suit filed, by the plaintiffs, being not for the enforcement of any right, arising out of a contract entered into between the unregistered firm, and third parties, bar of section 69(2) of the Indian Partnership Act, did not at all apply. In this view of the matter, the submission of Counsel for the appellants, is rejected. 17. The concurrent findings of fact, recorded by the Courts below, being based on the correct reading and due appreciation of evidence, and law, on the point do not suffer from any illegality or perversity, and warrant no interference, by this Court. In this view of the matter, the submission of Counsel for the appellants, is rejected. 17. The concurrent findings of fact, recorded by the Courts below, being based on the correct reading and due appreciation of evidence, and law, on the point do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgments and decrees of the Courts below, are thus, liable to be upheld. The substantial question of law, depicted above, are answered against the appellants. 18. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit must fail and the same is dismissed with costs.