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2015 DIGILAW 519 (GAU)

Deb Commercial Company v. Gupta Loha Bhandar

2015-05-05

N.CHAUDHURY

body2015
ORDER 1. The judgment and decree dated 05.07.2003 passed by the learned Civil Judge (Senior Division), Karimganj in Title Suit No. 38 of 2000 thereby dismissing the suit but decree the counter-claim of the defendant Nos. 1 and 2 for payment of Rs. 66,779/- with interest @ 9% per annum. 2. Plaintiff, M/s Deb Commercial Company, Karimganj instituted Title Suit No. 38 of 2000 in the Court of the learned Civil Judge (Senior Division), Karimganj on 21.07.2000 stating that defendant No. 2 firm owned by defendant No. 1 was engaged in purchasing and despatching grocery articles from respective proforma defendants from time to time upon telephonic orders placed by the plaintiff. The defendant No. 2 received value of the grocery articles on behalf of the defendant No. 1 firm alongwith its supervision charges on the total turnover but by furnishing a computerized statement of accounts for the period of 01.04.1998 to 13.03.1998 and 01.04.1998 to 26.04.1998, an amount of Rs. 22,809/- was shown as credit balance to be paid by the plaintiff on imaginary basis. According to the plaintiff, nothing was payable to the defendant Nos. 1 and 2. Rather defendant Nos. 1 and 2 were liable to make payment of Rs. 5,89,860/- to the plaintiff on various counts. 3. It is stated that claim under Item No. (a) of the schedule to the plaint was made by letter dated 03.03.1998, the claim under Item No. (b) of the schedule was made by letter dated 06.03.1998, the claim with regard to Item No. (c) was made by letter dated 08.03.1998, the claim with regard to Item No. (d) of the schedule was made by letter dated 06.04.1998 and claim in respect of Item Nos. (e) and (f) of the schedule was made by letter dated 31.10.1998 and all the letters were accepted by the defendants. 4. It is the further case of the plaintiff that in the later part of December, 1998, principal defendant No. 2 visited Karimganj for settling the dispute with regard to the aforesaid letters and ultimately he agreed to settle up the claim within 31.03.1999. This discussion took place by presence of a local businessman, Md. A. Ahmed but defendant Nos. 1 and 2 did not pay any heed to the claim of the plaintiff. Rather, on 22.06.2000, the defendant Nos. 1 and 2 sent a notice to the plaintiff asking for money. This discussion took place by presence of a local businessman, Md. A. Ahmed but defendant Nos. 1 and 2 did not pay any heed to the claim of the plaintiff. Rather, on 22.06.2000, the defendant Nos. 1 and 2 sent a notice to the plaintiff asking for money. Under such circumstances, cause of action of the suit arose and the plaintiff filed the suit only for declaration that plaintiff is entitled to realization of Rs. 5,89,860/- from the defendant Nos. 1 and 2 for payment of such amount with interest @ 18% per annum till realization and for further declaration that notice dated 22.06.2000 referred to above is malafide, etc. 5. On being summoned, the defendant Nos. 1 and 2 submitted their written statement only denying the claim of the plaintiff but also stating counter-claim for sum of Rs. 66,779/- pursuant to the aforesaid notice dated 22.06.2000. 6. It is the case of the defendants in the counter-claim that the defendant No. 2 acted as financer-cum-broker and the plaintiff made payment of Rs. 22,16,779/- to the proforma defendant towards the cost of the grocery articles and the commission fees but plaintiff made payment of Rs. 21,50,000/- only and thus an amount of Rs. 66,779/- remained payable by the plaintiff to the defendant No. 1. Defendant Nos. 1 and 2, further, demanded that a decree be passed for the aforesaid amount with interest. 7. The plaintiff submitted in his written statement against the counter-claim and refuted the claim of the defendant Nos. 1 and 2, both on the point of fact as well as on law. 8. Upon such rival contention of the parties, the learned Court had framed the following 5 Issues and the same is quoted herein below: 1. Is there any cause of action for the suit? 2. Is the suit maintainable? 3. Whether the Court has jurisdiction to try the suit? 4. Whether the plaintiff is entitled to get a decree as per prayer? 5. Whether the defendant is entitled to get a decree as per counter claim filed in the suit? 9. Plaintiff examined three witnesses including himself and the defendant examined one Mr. N.P. Saxena, constituted attorney of the defendant No. 1 firm and also exhibited 4 documents. 4. Whether the plaintiff is entitled to get a decree as per prayer? 5. Whether the defendant is entitled to get a decree as per counter claim filed in the suit? 9. Plaintiff examined three witnesses including himself and the defendant examined one Mr. N.P. Saxena, constituted attorney of the defendant No. 1 firm and also exhibited 4 documents. After perusal of the evidence and after hearing the parties, the learned trial Court decided Issue No. 1 in the affirmative in favour of the plaintiff holding that the suit has a cause of action. Coming to Issue No. 4, as to entitlement of the plaintiff to get a decree, the learned trial Court held that defendant Nos. 1 and 2 were not in picture with regard to purchase and supply of goods to the plaintiff. The proforma defendant sent the goods to the plaintiff directly for which payments were also made by the plaintiff directly to him. According to the learned Court, there is no scrap of paper to show that defendants had purchased or despatched the goods to the plaintiff firm. The plaintiff did not receive the goods with protest note. The claim of the plaintiff that goods supplied to him are of inferior quality also could not be established because no Food Inspector was examined to ascertain the quality of the article and the damage or quality of the goods supplied was not assessed by Surveyor and so unilateral books of accounts of the plaintiff would be no help for establishing the claim. According to the learned Court, Exhibits 2 to 6 were issued by the plaintiff asking the defendants to settle up the matter but the fact as to damage of the property and loss sustained by the plaintiff could not thereby be established. No written minutes of the meeting between the plaintiff and the defendant No. 2 could be brought on record by the plaintiff to establish that defendant No. 2 had come to Karimganj with a view to settling the dispute between the parties. Considering all these aspect of the matter, the learned trial Court held that Issue No. 4 deserves to be decided in the negative. The learned trail Court thus held that plaintiff was not entitled to any relief. 10. Considering all these aspect of the matter, the learned trial Court held that Issue No. 4 deserves to be decided in the negative. The learned trail Court thus held that plaintiff was not entitled to any relief. 10. With these findings, the Issue No. 2 was decided in the negative and Issue No. 3 was decided in affirmative holding that the Court has jurisdiction to try the suit. However, coming to Issue No. 5, the learned trial Court relied on the books of accounts vide Exhibit – C and held that on perusal of Exhibit – C, it reveals that Rs. 66,779/- is payable by the plaintiff to the defendants. Accordingly, decree has been passed on 05.07.2003 dismissing the suit of the plaintiff and decreeing the counter-claim of the defendants for Rs. 66,779/- alongwith interest @ 9% per annum. It is this judgment, which has been brought under challenge in the present appeal. 11. I have heard Mr. B.R. Dey, learned Senior Counsel, assisted by Mr. P.K. Debroy and Mr. T. Roy, learned counsel for the appellant. Also heard Mr. G.N. Sahewalla, learned Senior Counsel, assisted by Ms. R. Jain, learned counsel for the respondents. I have perused the lower Court records including the depositions and the witnesses and the documents adduced by them. 12. This appeal has been preferred against common judgment passed in both the suit as well as the counter-claim. Since the claim of the respective parties are passed on same transaction and they are inseparable each other, the appeal preferred by the plaintiff is considered to be an appeal not only against the decision rendered in the suit but also in the accompanying counter-claim. 13. The pleaded case of the plaintiff is that the defendant No. 2 being proprietor of defendant No. 1 acted as financer or broker and used to supervise his business. Defendant No. 2 used to supervise the business of purchase of grocery articles from the proforma defendants and used to make payment which in turn used to be reimbursed by the plaintiff. In paragraph 5 of the plaint, plaintiff claimed that with regard to Item Nos. (a) to (f) of the schedule to the plaint, plaintiff issued letters to the defendant Nos. 1 and 2 on 03.03.1998, 06.03.1998, 08.03.1998, 06.04.1998 and 31.10.1998 and wanted the defendant Nos. 1 and 2 to settle the matter. In paragraph 5 of the plaint, plaintiff claimed that with regard to Item Nos. (a) to (f) of the schedule to the plaint, plaintiff issued letters to the defendant Nos. 1 and 2 on 03.03.1998, 06.03.1998, 08.03.1998, 06.04.1998 and 31.10.1998 and wanted the defendant Nos. 1 and 2 to settle the matter. The plaint, however, is silent with regard to material fact as to how the plaintiff sustained loss and as to whether the defendant Nos. 1 and 2 were responsible for such loss. There is no material fact in paragraph 5 to establish the claims made in Item Nos. (a) to (f) of the schedule of the plaint. However, coming to the witness box, P.W. 1 as one of the partners of the plaintiff firm stated on oath that M/s Sree Durga Industries, sent 555 bags of rice valuing Rs. 4,40,568/- and plaintiff made payment for the same. Plaintiff sustained loss @ Rs. 80/- per bag and thus it sustained a loss of Rs. 44,400/- for which letter dated 03.03.1998 was issued to the defendants. Similarly, the same proforma defendant sent another consignment of 555 bags of rice amounting to Rs. 4,40,568/- and in that also, plaintiff sustained loss of Rs. 44,400/- in all, for which, letter was sent to the defendant No. 2 on 06.02.1998. Similar claim of equal amount has also been reiterated by letters dated 08.03.1998, 06.04.1998 and 31.10.1998. All these letters are exhibited as Exhibit – 2 to Exhibit – 6. 14. Now although in these letters it is stated that plaintiff sustained loss because good quality gunny bags were not used and commodity was also not of good quality but in these letters, there were no mention that plaintiff sustained loss to the tune of Rs. 80/- per bag. The claim made in the course of deposition in regard to loss sustained to the tune of Rs. 80/- per bag, therefore, is beyond pleadings and so such evidence of the plaintiff are not entitled to be considered at all. 15. Be that as it may, from the nature of pleading and proof produced by the parties, it appears that basic grievance of the plaintiff against the defendant Nos. 1 and 2 is that the proforma defendant did not supply goods of desired quality but for which plaintiff sustained loss. 15. Be that as it may, from the nature of pleading and proof produced by the parties, it appears that basic grievance of the plaintiff against the defendant Nos. 1 and 2 is that the proforma defendant did not supply goods of desired quality but for which plaintiff sustained loss. But what was the quality of goods desired by the plaintiff and how the goods supplied was not of the desired quality has neither been pleaded in the plaint nor has the same been brought on record otherwise. 16. The learned trial Court observed that it is the proforma defendant who directly sent the goods to the plaintiff without there being any role played by the defendant Nos. 1 and 2. But this finding that the learned trial Court also does not appear to be wholly correct in view of Exhibit – D, notice dated 22.06.2000. The defendants claim that they played the role of financing as well as supervising the business of the plaintiff with proforma defendant, for which they were entitled to commission and the plaintiff did not pay the same. Now even if it is held that the defendant Nos. 1 and 2 were acting as the intermediaries between the plaintiff and the proforma defendant, even in that event, to get a decree for damage of compensation, the plaintiff must establish that the supply was made of inferior quality than the ones for which orders were placed. The plaint lacks those material facts as to the orders placed by the plaintiff through the defendant Nos. 1 and 2 from time to time. 17. In the plaint itself, plaintiff claims that orders were placed over telephone. Even if such a fact is considered to be a one of oral evidence, in that event, plaintiff was duty bound to prove it that such an order was placed. Section 60 of the Evidence Act says that if an act can be heard or can be seen, such a fact cannot be believed unless evidence is adduced by examining witness to the effect that he had heard such facts or seen such fact. There was no witness when the plaintiff placed orders with the defendant Nos. 1 and 2 and so it cannot be said that plaintiff succeeded to establish the fact that it placed order to defendant Nos. 1 and 2 over telephone. 18. There was no witness when the plaintiff placed orders with the defendant Nos. 1 and 2 and so it cannot be said that plaintiff succeeded to establish the fact that it placed order to defendant Nos. 1 and 2 over telephone. 18. Coming to the question of the quality of the goods supplied, it is of the finding of the learned Court below that the plaintiff did not play its role in getting the goods examined by a Surveyor or by a Food Inspector for this purpose. The goods were supplied by proforma defendant to the plaintiff on various dates. By issuing letters vide Exhibits – 2 to 6, plaintiff informed the defendant Nos. 1 and 2 that goods supplied were of inferior quality and the gunny bags were also of inferior quality. But the claim that plaintiff sustained loss @ Rs. 80/- per bag is nowhere mentioned in these communications. In view of this, the learned trial Court has not committed any error in appreciating the evidence of the plaintiff and coming to the conclusion. Consequently, it is to be held that the learned trial Court did not commit any error in dismissing the suit of the plaintiff. 19. However, Issue No. 5 as to counter-claim has been decreed by the learned trial Court by a one paragraph finding. The learned trial Court had considered Exhibit – C, which is the computerized statement of accounts of the defendant Nos. 1 and 2. Without entering into the question of validity of this piece of evidence, learned trial Court decreed the counter-claim and directed the plaintiff to pay Rs. 66,779/- to the defendants. 20. The defendant No. 2 did not come to the witness box to prove his case rather one constituted attorney has been examined as D.W. 1 to prove the case of the defendant Nos. 1 and 2. In course of cross-examination, this witness has admitted that he has no knowledge with regard to the exhibits adduced by the parties. He could not name the Accountant, who used to look after the transactions. This witness also did not claim that he had personal knowledge about the same. He rather disclosed that defendant No. 1 is a partnership firm, of which defendant No. 2 is only a partner. He could not name the Accountant, who used to look after the transactions. This witness also did not claim that he had personal knowledge about the same. He rather disclosed that defendant No. 1 is a partnership firm, of which defendant No. 2 is only a partner. So it is evident from his cross-examination that D.W. 1 does not have any personal knowledge about the pleading made in the counter-claim and so he was not entitled to depose. Rather his evidence is nothing better than hearsay evidence In the case of Janaki Vashdeo Bhojwani vs. Indusind Bank Limited, (2005) 2 SCC 217 , the Hon’ble Supreme Court held that a constituted attorney cannot depose with regard to facts unless he has personal knowledge. In that view of the matter, defendant No. 2, not having coming to the witness box and having examined a constituted attorney, who does not have personal knowledge about the transaction, the defendant Nos. 1 and 2 miserably failed to prove their own case. 21. The learned trial Court failed to take note of this aspect of the matter and relied on such hearsay evidence to arrive at the conclusion. This being the position, the learned trial Court ought to have held that defendant Nos. 1 and 2 did not lead any evidence to establish their case and consequently, the counter-claim ought to have been dismissed. 22. Considering the facts and circumstances in its entirety, the finding of the learned trial Court is reversed. Consequently, the decree of counter-claim stands set aside. The appeal stands partly allowed in so far as it relates to the decree of counter-claim and it is dismissed in so far as it relates to dismissal of the suit. No costs. 23. Send back the records.