IN THE HIGH COURT OF , BENCH

DATED THIS THE 26 TH DAY OF FEBRUARY 2015

BEFORE

THE HON’BLE MR. JUSTICE S.N. SATYANARAYANA

RSA No.5464/2010 (MON) BETWEEN:

HIMALAYA CRAFTS, REPRESENTED BY SHRI JAGTAR SINGH, R/AT 3002/2, BHAGATH SING STREET, PAHAR GANJ, NEW DELHI-110055. .. APPELLANT (BY SRI.V.P.KULKARNI, ADV.)

AND:

1. IDEAL FOOD PRODUCTS, NO.871, ROAD, UDAYAMBAG, -590008.

2. SRI.GURURAJ S/O GUNDERAO LOKUR, AGED ABOUT 69 YEARS, R/O 1557, MARUTHI GALLI, BELGAUM – 590008.

3. SRI.NARAYAN S/O GUNDERAO LOKUR, AGED ABOUT 63 YEARS, R/O 1557, MARUTHI GALLI, BELGAUM – 590008.

4. SRI.SAMEER S/O GUNDERAO LOKUR, AGED ABOUT 38 YEARS, R/O 1557, MARUTHI GALLI, BELGAUM – 590008. 2

5. SRI.SUBODH S/O GUNDERAO LOKUR, AGED ABOUT 36 YEARS, R/O 1557, MARUTHI GALLI, BELGAUM – 590008.

6. SHIVA ENTERPRISES, NO.3002/2, BHAGATH SING STREET, PAHAR GANJ, NEW DELHI-110055.

.. RESPONDENTS (BY SRI.RAMACHANDRA MALI, ADV. FOR R2 TO R5, R1 SERVED)

THIS APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 06.03.2010 PASSED IN R.A.NO.152/2008 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, BELGAUM, DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT DATED 08.04.2008 AND THE DECREE PASSED IN O.S.NO.43/2003 ON THE FILE OF THE II ADDL. CIVIL JUDGE SR.DN. BELGAUM, DECREED THE SUIT FILED FOR RECOVERY OF MONEY.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT Defendant No.1 in O.S.No.43/2003 on the file of the II

Additional Civil Judge, (Sr.Dn.) Belgaum has come up in this second appeal impugning the concurrent findings of both the 3

Courts below in decreeing the suit of the plaintiffs for recovery of a sum of Rs.58,762/- with interest at 18% p.a. from the date of the suit till realization of the suit claim on costs of the goods supplied i.e., Rs.43,560/-.

2. The brief facts leading to this second appeal are as under:

Plaintiff-Ideal Food Products is the registered partnership firm, which is manufacturing the food products, of which, plaintiff Nos.1A to 1D are the partners. The case of the plaintiffs is that, defendant No.1 placed order on 16.02.2001 for supply of

600 bottles of badam thandai totally worth Rs.32,400/- at the rate of Rs.54/- per bottle and 60 bottles of pista syrup, badam kesar syrup, almond syrup each worth Rs.62/- per bottle totally

Rs.3,720/- per category under invoice No.54 dated 13.04.2001.

Under the said invoice, the goods supplied to defendant Nos.1 and 2 is worth Rs.43,560/-. It is stated that goods were sent through VRL and the same was received by the defendants. The defendants were also required to pay Rs.1481/- towards Central 4

Sales tax. As per the terms and conditions, the payment is required to be made within 15 days. In the said invoice, 15% discount was also provided. It is stated that, despite the fact that the goods were received by defendant Nos.1 and 2, they did not make payment. Hence, after several requests, legal notice was issued on 19.07.2002 and thereafter suit was initiated for recovery of the amount. In the said suit defendants entered appearance, filed written statement contending that they are Carrying and

Forwarding agents of the plaintiffs firm and that the goods were supplied to them for the purpose of selling the products on behalf of the plaintiffs, since some of the products were not sold, they returned the same, which is about 33 cartons containing 483 bottles, for which the plaintiff is not entitled to claim the value under the invoice and with reference to the balance, they are ready to pay the value shown in the invoice minus 15% discount, which is provided.

3. In the proceeding before the trial Court, issues were framed and parties were called upon to adduce evidence. On 5

behalf of the plaintiffs, one of the partners, namely, plaintiff

No.1A adduced evidence and in support of their claim, he produced in all 13 documents, which are marked as Exs.P1 to

P13. On behalf of the defendants, there is no oral and documentary evidence except taking the defence that they are

Carrying and Forwarding agents of the plaintiff. As such, they are not obliged to pay the invoice amount and they are only required to pay the value of the goods, which is sold and since they have already returned the unsold goods, for which, they are not required to pay any amount. The Court below did not believe the defence that defendant Nos.1 and 2 are Carrying and Forwarding agents and it accepted the supply of goods under invoice vide

Ex.P4 as regular sale and in view of the value of the invoice not being paid within stipulated time, held that defendants are also not entitled to any discount as provided under the invoice, since there is default in payment of money and accordingly, decreed the suit directing the defendants to pay the entire invoice amount with interest at 18% p.a. 6

4. Being aggrieved by the same, defendant No.1 preferred an appeal in R.A.No.152/2008 on the file of the II

Additional District Judge, Belgaum. However, defendant No.2 in the original suit namely, Shiva Enterprises, which is also by the same proprietor, who is representing defendant No.1 did not choose to challenge the judgment and decree passed in the original suit. The lower appellate Court on re-appreciation of the pleadings, oral and documentary evidence available on record proceeded to dismiss the appeal on the ground that the defendants have failed to establish the Carrying and Forwarding agency, which was pleaded in the Court below in denying its liability to pay the value of the goods, which is returned after expiry period of the goods has lapsed. Being aggrieved by the same, defendant No.1 in O.S.No.43/2003 has come up in this second appeal.

5. Heard the learned counsel Sri.V.P.Kulkarni appearing for the appellant and learned counsel appearing for respondent Nos.2 to 5. On going through the grounds of appeal 7

with reference to the pleadings and evidence available on record, it is clearly seen that, though defendant No.1 plead that he was appointed as Carrying and Forwarding agent of plaintiffs firm, there is nothing on record to show such relationship of principal and agent between plaintiff and defendant Nos.1 and 2. On the contrary, the document which is at Ex.P4 would clearly discloses that the suit transaction is a clear sale of certain goods under the said invoice for the price stated therein subject to terms and conditions referred to in the said invoice, which is at Ex.P4. The said document does not support the case of the defendant Nos.1 and 2 that the supply of goods is from principal to Carrying and

Forwarding agent as claimed by defendant Nos.1 and 2. On the contrary, it would disclose as if it is a clear sale of goods referred to in the said invoice from plaintiffs to defendant Nos.1 and 2. In that view of the matter, this Court find no justifiable grounds are made out to interfere with the findings rendered by both the

Courts below in decreeing the suit of the plaintiffs for recovery of invoice amount for sale of the goods. Accordingly, this second 8

appeal filed by defendant No.1 does not merit admission. Hence, the same is dismissed.

Sd/- JUDGE MBS/-