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M/S BANARSI DASS DHANPAT RAI v. SEHDEV & Ors - RSA-612-1980 [2005] RD-P&H 218 (7 November 2005)


R.S.A.No.612 of 1980

Date of Decision: 11-1-2006

M/s Banarsi Dass Dhanpat Rai ........Appellant v.

Sehdev and others .......Respondents



Present: Mr.Munishwar Puri, Advocate

for the appellant.

None for the respondents.



Respondent filed a suit for recovery of an amount of Rs.10,900/- on account of balance, out of advance amount of Rs.20,000/- and also interest accrued thereon. It was case of the respondent that he entered into an agreement with sole selling agent of the appellant on 7.7.1977 for supply of 50,000 kgs. of dyed staple mixed hosiery yarn and in pursuance to that agreement, he deposited an amount of Rs.20,000/- as an advance vide different cheques, subject to an understanding that RSA No.612 of 1980 [2]

the amount would be adjusted towards the price of the goods supplied under the aforesaid agreement. When the appellant failed to supply the entire material and also to make adjustment as agreed, respondent filed a suit for recovery which was decreed by the trial Court to the extent that the respondent was held entitled to recover an amount of Rs.7,656/-. Both the appellant and the respondent feeling dissatisfied went in appeal. Their appeals were dismissed on 29.1.1980. Hence, this Regular Second Appeal.

Appellate Court below after analysing evidence on record has observed as under:-

"9. The agreement, copy of which has been exhibited as PW4/1 on the record of this case is dated 7.7.1970. A perusal of document Ext.PW4/1 shows that its original had on it the signatures of Jai Bhawan, on behalf of defendants No.1 and 2 and of Shri Banarsi Dass, partner of defendant- appellant firm and the plaintiff Sehdev. The plaintiff has produced PW4 Tek Chand and PW5 Janak Raj, who claim themselves as attesting witnesses of this document and further deposed that this agreement was executed by the parties in their presence and the defendants had agreed to supply stapple yarn as specified in detail in the agreement. It was further deposed by them that the agreement, was prepared in triplicate and each one of the parties retained one-counter part of the agreement. It has also come in evidence that Sehdev, plaintiff, lost the copy of the agreement which was RSA No.612 of 1980 [3]

with him and he lodged the report with the police which has been exhibited as PW6/17. The defendants Nos.1 and 2 have not contested the suit.

Defendant no.3 was asked to supply the copy of the agreement with it but the same was refused as it did not possess any such copy of agreement and has even denied the existence of such agreement. The trial court allowed the plaintiff to lead secondary evidence under section 65 of the Indian Evidence Act as to the existence, conditions and contents of the agreement dated 7.7.1970. The existence of agreement dated 7.7.1970, copy of which has been exhibited as PW4/1 finds support from the letters received by the plaintiff from the defendants No.1 and 2 and which have been exhibited as PW6/11, PW6/12, PW6/13 and PW6/14. These letters find reference to contract No.51/303 dated 7.7.1970 regarding the supply of yarn no.5051.

Copies of all these letters are mentioned to have been sent to M/s Banarsi Dass Dhanpat Rai i.e. Defendant-appellant. The learned counsel for the appellant contends that these letters are clear case of forgery. According to the learned counsel these letters were never referred by the plaintiff in the notice served upon defendant No.1 and 2, copy of which has been exhibited as PW6/19. The contention of the counsel is of no avail to the defendants because in the notice the plaintiff had put forth his claim for non-supplying of the agreed commodity against payment. It was not mentioned about the existence of these letters in the body of the notice. Moreover, these letters RSA No.612 of 1980 [4]

show that copies of the same had been sent to the defendants. The defendants could very well summon the other defendants for denial of these letters as having not been issued from Kharar Textile Mills. The defendants did not produce any evidence to rebut the genuineness of the letters.

Another proof of the existence of this agreement is that admittedly the plaintiff paid Rs.20,000/- to the defendants through the defendant-appellant.

Otherwise in the normal course of business he was not required to have paid any advance to the defendants. The payment of Rs.20,000/- fully stands proved on the file from the statements of Shri Surinder Nath Sharma PW3.

The acceptance of such an agreement finds further prop (sic ?) from the fact that the defendants supplied stapple yarn to the plaintiff at one and the same uniform rate desniote the usual fluctuations in the market from day to day.

The contention of the defendant-appellant that in fact the plaintiff was an ordinary customer like many others, is belied from the fact that the defendant-appellant had been supplying stapple yarn at the same rate inspite of the fluctuations in the rates of the stapple yarn in the market. The contention of the learned counsel for the appellant that the rate in the alleged agreement was Rs.18/- per Kg. However, the plaintiff had been purchasing the stapple yarn at the rate of Rs.18.10 P. per Kg., which negatives the existence of the agreement. This argument of the learned counsel is alone of any avail because the defendant-appellant might have RSA No.612 of 1980 [5]

been charging 10 paise more than the agreed rate, because some other miscellaneous expenses had never been objected to by the plaintiff. The letters Exts.PW6/11 to PW6/14 can be referred to know as to how and when the dispute between the parties started. It appears that the supply of stapple yarn as mentioned in the agreement, was suddenly stopped by the defendants and the plaintiff demanded resumption of the supply and the defendants had shown their liability owing to unavoidable circumstances beyond their control. The plaintiff then had some dispute with the defendant-appellant regarding the supply, who informed defendant No.1 and 2 and vide letter PW6/14 the contract with the plaintiff was cancelled and the plaintiff was advised to settle the accounts with the defendant- appellant. As earlier referred to above, these letters very much show the defendant-appellant as party to the contract and supply of the contracted goods was to be made through him.

10. The case of the defendant-appellant that all the transactions of supply of the stapple yarn to the plaintiff were independent of defendant nos.1 and 2 and the plaintiff was a general customer, is fully belied when the defendant appellant himself in his statement, as DW2, admitted the bills Exts.PW6/20 to PW6/64 regarding the supply of stapple yarn of variety No.5051 and the payments made by the plaintiff have been credited in the name of defendant no.2. All these circumstances clearly show that the RSA No.612 of 1980 [7]

allegations of the plaintiff that all the defendants had entered into agreement, copy of which is Ext.PW4/1, for the supply of dyed stapple yarn to the plaintiff, was duly agreed upon on 7.7.1970 as per the conditions in Ext.PW4/1. The findings of the trial court on issue no.1 are, thus, hereby affirmed.

11. It had next been contended that the plaintiff has alleged agreement with defendant Nos.1 and 2, the decree if any could only be passed against the plaintiff and not against the defendant-appellant. The document Ex.PW4/1 clearly shows that the defendant appellant is signatory to the said agreement and equally bound itself is still within his rights to claim his dues against the defendants including the defendant-appellant.

12. It has also been argued that an independent decree in favour of the defendant-appellant should have been passed for the amount of Rs.4340/- admitted by the plaintiff to be due from him to the appellant, but the defendant-appellant, has, in its own averments in the written statement, claimed this amount as set off, which means that if any amount was found due from the defendant-appellant to the plaintiff, the said amount be adjusted and this is what the trial court has done in the present case. The case of the plaintiff also had been that it owed a sum of Rs.4344/- to the defendant-appellant to the plaintiff, the said amount be adjusted and this is what the trial court has done in the present case. The case of the plaintiff RSA No.612 of 1980 [8]

also had been that it owed a sum of Rs.4344/- to the defendant-appellant but the same is adjustable from the amount due to him from the advance of Rs.20,000/- after deducting Rs.8000/- already returned to the plaintiff on different dates by the defendants No.1 and 2 through defendant no.3.

13. It is proved on the file that the plaintiff had paid Rs.20,000/- to the defendants on various dates. The defendant-appellant had admitted that the plaintiff was returned Rs.8000/- on different occasions in between 13.11.1971 to 12.11.1974, which means that the defendants still owed Rs.12000/- to the plaintiff and in this way the amount of Rs.4344/- payable to the defendant-appellant can be adjusted and the remaining sum of Rs.7656/- is payable to the plaintiff from the defendants. The learned counsel for the appellant could not dislodge the finding of the trial court on issue no.3 as well. Thus, I do not find any force in the appeal filed by the defendant-appellant M/s.Banarsi Dass Dhanpat Rai, which is dismissed.

14. In the connected appeal it has been argued at length that if the defendants No.1 and 2 issued letter PW6/14 to the plaintiff, it was obvious that the defendants had cancelled the agreement dated 7.7.1970. It was contended that after 7.10.1970 i.e. The date of letter of Lext.PW6/14 written by the defendant the retention of the advance money given by the plaintiff, till its re-payment could only be on market interest, but the plaintiff could not bring a claim against the defendants more than what he had said in the notice RSA No.612 of 1980 [9]

Ext.PW6/19. It may be noted that the plaintiff has simply demanded Rs.12000/- from the defendants in his notice, copy of which is Ext.PW6/19.

So also there is no mention of any interest in the agreement between the parties, copy of which is Ex.PW4/1, nor there is any such, evidence adduced by the pla9ntiff firm which it can be inferred that the plaintiff is entitled to any interest on the amount to which he is entitled. I, thus, find no force in this appeal and the same is dismissed. The judgment and decree of the court below are hereby affirmed. The parties in both the appeals are left to bear their own costs."

The opinion arrived at by the Appellate Court below is perfectly justified and is based on proper appreciation of record. No substantial question of law has been raised which may necessitate any interference of this Court in pure findings of fact.



January 11, 2006. JUDGE



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