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2017 DIGILAW 773 (HP)

Lal Chand v. Jiwat Ram

2017-07-06

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. —The instant appeal stand directed against the concurrently recorded judgments and decrees by both learned Courts below, whereby, they decreed the suit of the plaintiff instituted against the defendant, wherein, he claimed recovery of a sum of Rs. 70,000/- from the defendant. In sequel thereto, the defendant/appellant herein is driven to institute the instant appeal herebefore. 2. Briefly stated the facts of the case are that the plaintiff on 10.09.1999 had instituted a Civil Suit for recovery of Rs. 70,000/- against the defendant on the allegations that the apple orchard of the plaintiff was situated in village Jahoo Deem, Sub Tehsil Nankhari. The plaintiff had been consigning his apple fruit to various parts of the country under the name and style of Kailash Orchard. The defendant had been carrying on business of forwarding of fruit from Rampur Tehsil to different parts of the country under the name and style of Best Apple Forwarding Agency. On 12.09.1996, the plaintiff had booked his 253 cases of selected royal apple as per G.R. copy Ex. PA through forwarding agency of the defendant. The apple fruit of the plaintiff was to be delivered to M/s. N.T.C. Delhi, who had been dealing in apple fruit at Delhi. In normal carriage routine, the consignment of apple fruit of the plaintiff was to reach the consignee at Delhi upto 15.09.1996. The plaintiff had alleged that the defendant had not carried his 253 apple cases to M/s. N.T.C., Delhi but had diverted the fruit elsewhere. The plaintiff had visited Delhi in the end of September, 1996 and had been informed by the consignee that fruit consignment of the plaintiff had not been delivered to him. It had been alleged that in September, 1996, at the relevant time, apple fruit was being sold in Delhi market at the rate of Rs. 350/- and 400/- per apple case. The plaintiff was entitled to a sum of Rs. 78,500/- on account of the proceedings of his apple fruit. After deduction of freight and commission, the plaintiff had claimed a sum of Rs. 70,000/- from the defendant on account of sale of his apple fruit. The defendant was bailee of the fruit and was required to account for to the plaintiff. In G.R. copy, Ex. PA the defendant had indicated a sum of Rs. After deduction of freight and commission, the plaintiff had claimed a sum of Rs. 70,000/- from the defendant on account of sale of his apple fruit. The defendant was bailee of the fruit and was required to account for to the plaintiff. In G.R. copy, Ex. PA the defendant had indicated a sum of Rs. 7,950/- payable by the plaintiff to the defendant on account of credit sale of packing cases. The plaintiff says that he had not purchased on credit or otherwise the packing material from the defendant. As such, the plaintiff was not liable to pay the amount of Rs. 7,950/- to the defendant. The defendant had been requested to clear the amount of 70,000/- on many occasions but without any result, hence the suit. 3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections inter alia limitation, non-joinder and maintainability. On merits, it is admitted that the defendant had received 253 apple cases of the plaintiff for delivery to M/s. N.T.C. Delhi vide G.R. Ex. PA. It had been stated that when the fruit was to be loaded in the truck, the plaintiff and his men had represented for delivery of goods to M/s. S.A.A. Delhi. As such, the men of the defendant had cancelled G.R. Ex.PA bearing serial No. 731 and had issued G.R. No. 733 in favour of the plaintiff. The defendant had carried the goods of the plaintiff from Rai Bahli and had delivered the consignment to M/S S.A.A.. The defendant had been paid freight charge and his commission in by the consignee. The defendant was not required to account for the sale proceeds in question. The sale proceeds of 253 apple cases of the plaintiff were payable to him by the consignee M/S S.A.A. The plaintiff was stated to be apple orchardist of Jahu Deem. It had been stated that on account of hailing, the apple fruit was not of good quality in 1996. Apple fruit of the area of the plaintiff had been sold in Delhi Market for Rs. 50/- per apple case. The plaintiff had not impleaded M/s. N.T.C. and M/s. S.A.A. as defendant in the suit. The plaintiff was not entitled to recovery the suit amount from the defendant. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. 50/- per apple case. The plaintiff had not impleaded M/s. N.T.C. and M/s. S.A.A. as defendant in the suit. The plaintiff was not entitled to recovery the suit amount from the defendant. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled to recovery of suit amount, as alleged? OPP 2. Whether the suit is within limitation? OPP 3. Whether the suit is bad for non joinder of necessary parties? OPD. 4. Whether the suit is not maintainable? OPD 5. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the defendant/appellant before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 6. Now the defendant/appellant herein, has instituted the instant Regular Second Appeal before this Court wherein he assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 7.09.2005, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- a) Whether the impugned judgment and decree is the result of misreading of both oral and documentary evidence? Substantial question of Law No. 1. 7. Ex. PA is the copy of consignment note/G.R., whereunder the defendant stood entrusted with goods/apple cases, ''of the plaintiff'', for their consignment to one M/S N.T.C. Delhi. M/s. N.T.C. Delhi, on receipt of apple boxes ''was'' obliged to sell them ''in an'' auction also were obliged to transmit to the plaintiff, the price of the laden apple boxes sold in an open public auction. However, the goods entrusted under Ex.PA by the plaintiff ''to the'' defendant never reached the consignee thereof, namely, M/s. N.T.C., Delhi. The plaintiff, hence, instituted a suit for recovery of the price of the apples carried in boxes, boxes whereof stood entrusted under Ex.PA to the defendant, for theirs being transmitted to the consignee thereof. Ex.PA is the copy of the consignment note, it obviously stood tendered into evidence by the plaintiff during the course of his examination-in-chief. The plaintiff, hence, instituted a suit for recovery of the price of the apples carried in boxes, boxes whereof stood entrusted under Ex.PA to the defendant, for theirs being transmitted to the consignee thereof. Ex.PA is the copy of the consignment note, it obviously stood tendered into evidence by the plaintiff during the course of his examination-in-chief. However, the learned counsel appearing for the defendant/appellant herein contends that no reliance can stand imputed thereto, ''for'' recording any conclusion that thereunder the goods of the plaintiff were entrusted to the defendant nor on anvil thereof, it can be concluded that the defendant had received them nor it can be concluded that the decree claimed by the plaintiff hence enjoined the learned Courts below to render it vis-a-vis the plaintiff. 8. The effort made by the learned counsel appearing for the defendant/appellant, to bely the contents embodied in Ex.PA, ''stands embedded'' in the factum of EX.PA, comprising the original of the purportedly apposite consignment note, being never standing delivered to the plaintiff whereas copy thereto being handed over to the plaintiff, whereupon with the original of the apposite consignment note, standing never delivered to the plaintiff, his holding it, is rendered suspect besides contents thereof hold no authenticity, for hence, reliance thereon being placed by this Court. However, the aforesaid contention is unacceptable, for the reasons (a) in the pleadings in respect thereto cast in the written statement instituted by the defendant vis-a-vis plaint, he has not with specificity enunciated therein that the original of the purported consignment note being retained by the driver of the vehicle, rather he therein in a nebulous phraseology, enunciates therein that a copy of the relevant purported apposite consignment note was handed over to the driver, therefrom it is not fit to firmly conclude that the original of the purported apposite consignment note ''stood'' transmitted to the driver of the vehicle nor it can be concluded that the plaintiff, as contended, in the written statement only received a copy of the original consignment note; (b) PW-1 during the course of his examination-in-chief, adduced in evidence Ex.PA, whereafter he stood subjected to a rigorous cross-examination by the counsel for the defendant, during course whereof, apposite suggestion(s) stood purveyed to him by the counsel for the defendant with respect to the original G.R./consignment note, being transmitted to the driver, suggestion whereof evinced from PW-1 an answer wherein he feigned his ignorance in respect thereto. For the defendant to succeed ''in establishing'' the aforesaid fact, he stood enjoined to adduce firm oral or documentary evidence personificatory of the norms of business appertaining to issuance of consignment note/G.R., ''mandating that'' the original thereof being transmitted to the driver, importantly when adduction of aforesaid evidence, would give immense strength to the submission of the counsel for the defendant, that its retention by the plaintiff also his tendering original thereof in Court, being suspect. However, omission(s) of adduction of best oral evidence emanating from persons engaged in the relevant trade, besides omission to adduce documentary evidence in respect thereof, constrains this Court to conclude their exist no norms in the relevant business, whereby, the original of the G.R./consignment note, imperatively warranted its retention by the apposite driver. Corollary whereof is that the retention of the original of the G.R./consignment note ''by the'' plaintiff does not gather any aura of scepticism, hence, in PW-1 tendering it into evidence ''not'' begetting any conclusion that its adduction into evidence not appertaining to the goods of the plaintiff, goods whereof stand delineated therein. Corollary whereof is that the retention of the original of the G.R./consignment note ''by the'' plaintiff does not gather any aura of scepticism, hence, in PW-1 tendering it into evidence ''not'' begetting any conclusion that its adduction into evidence not appertaining to the goods of the plaintiff, goods whereof stand delineated therein. (C) Furthermore, with the learned counsel for the defendant while holding the plaintiff to cross-examination his thereat putting a suggestion, couched in an affirmative phraseology holding echoing(s) therein that he possesses the original of G.R. No. 731, suggestion whereof evinced an affirmative answer thereto from the plaintiff, ''does sequel'' an inference that the defendant hence admits that Ex.PA, comprises the original of the apposite G.R./consignment note, therefrom the defendant is estopped to contend that Ex.PA does not appertain to the goods entrusted to the defendant by the plaintiff, for theirs being transported to M/S N.T.C. Delhi and (d) with the defendant not contesting the authenticity of the contents borne on Ex.PA nor his adducing evidence in respect of Ex.PA being stolen or its contents being fabricated, enhances an inference that Ex.PA as possessed by the plaintiff, comprises the original of the relevant consignment note/G.R., also its standing authorisedly issued besides contents borne therein, displaying the goods delineated therein being entrusted by the plaintiff to the defendant for their onward transportation to M/s. N.T.C, Delhi, hence, holding veracity. 9. The defendant contested the suit of the plaintiff ''by'' espousing that the goods borne in Ex.PA, reached their destination. However, for the aforesaid contention to garner any vigorous tenacity, it was enjoined to be proven by best evidence comprised in receipts in respect thereto being issued by the authorised officer of M/s. N.T.C., Delhi also stood comprised in the staff manning the relevant vehicle, deposing with categoricality in vivid display of theirs transporting the goods borne in Ex.PA, to M/s. N.T.C, Delhi. However, the best evidence in respect of goods borne in Ex.PA reaching their destination remaining unadduced, consequently, it is emphatically concluded that the defendant never delivered the goods of the plaintiff to M/s. N.T.C. Delhi, where to whom he was enjoined to deliver, corollary whereof is that with the plaintiff deposing that the prevalent price of apple laden carton boxes ranging between Rs. 350/- or Rs. 350/- or Rs. 400/- per apple carton, evidence whereof remains unconcerted to be belied, hence, begetting a conclusion that the suit of the plaintiff constituted in a sum of Rs. 70,000/- comprising the price of 253 boxes laden with apples, standing appropriately decreed by both the learned courts below. 10. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. Consequently, the substantial question of law is answered in favour of the plaintiff/respondent and against the defendant/appellant. 11. In view of the above discussion, there is no merit in the instant appeal, which is accordingly dismissed. The impugned judgments and decrees are maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back.