Bombay High Court
Vinay Gendmal Batiya vs Prakash Shekuji Patil And Others on 14 October, 2021
Bench: V. V. Kankanwadi
sa-384-2019 with 2 cas.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.384 OF 2019
WITH CA/7726/2019 IN SA/384/2019
WITH CA/10224/019 IN SA/384/2019
VINAY S/O GENDMAL BATIYA
VERSUS
PRAKASH S/O SHEKUJI PATIL AND OTHERS
...
Mr. Arvind Deshmukh, Advocate for appellant.
Mr. S. K. Chavan, Advocate for respondent No.1.
Mr. S. V. Chandole, Advocate for respondent Nos.2, 3 and 4.
...
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 09.08.2021
Pronounced on : 14.10.2021
ORDER :-
. Present appeal has been filed by original defendant No.1
challenging the concurrent findings and decree passed by the Courts
below. Present respondent No.1 - original plaintiff had filed Special
Civil Suit No.21 of 2009 before the learned Civil Judge Senior Division,
Parbhani for recovery of amount of Rs.21,25,387/- with interest at the
rate of 12% per annum till realisation of the entire amount. The said
suit came to be decreed on 06.05.2017. The present appellant
challenged the said judgment and decree in Regular Civil Appeal No.118
of 2017. It was heard by learned District Judge-4, Parbhani and it came
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to be dismissed on 29.04.2019. Hence, this second appeal.
2. Heard learned Advocate Mr. Arvind Deshmukh for the appellant,
learned Advocate Mr. S. K. Chavan for respondent No.1 and learned
Advocate Mr. S. V. Chandole for respondent Nos.2, 3 and 4.
3. It has been vehemently submitted on behalf of the appellant that
both the Courts below have not considered the facts and the
circumstances as well as law points involved in the case properly. The
present case is the unique example of non application of mind by both
the Courts below and, therefore, the findings rendered are perverse.
Another suit was filed before Debts Recovery Tribunal and, therefore,
present suit was barred under Section 11 of the Code of Civil Procedure.
Another fact that was not considered is that the appellant is a
partnership firm, yet the suit has been filed in the name of individual
person and not against the partnership firm. Therefore, it is barred
under Order XXX of the Code of Civil Procedure. The substantial
question of law, therefore, arises as no proper and sufficient opportunity
to lead evidence was given by the Courts below to prove that, in fact,
the transaction was with the partnership firm and not with the
individual partner. In fact, the present appellant had preferred an
application to allow him to examine the Registrar of Firms, however,
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that application was rejected. He had preferred Writ Petition No.6955 of
2017, however, during the pendency of that writ petition, the suit came
to be hurriedly disposed off and, therefore, this Court had granted
liberty to raise the issue before the first Appellate Court under Section
105 of the Code of Civil Procedure. When the appellant wanted to lead
evidence, the said evidence could not have been rejected by the Trial
Court on some flimsy grounds. Principles of natural justice are violated
by the Courts below. Further, the suit also suffered for misjoinder of
cause of action. Defendant No.4 had nothing to do with the main
transaction that was arrived at in respect of installation of machinery,
however, the plaintiff added the alleged transaction in respect of
purchase of car belonging to defendant No.4 with the cause of action in
the suit. In fact, the plaintiff has filed claim before the Debts Recovery
Tribunal on 24.05.2007 claiming amount of Rs.12,00,000/- which was
given by the plaintiff by way of blank cheque to the appellant -
defendant, which was deposited and encashed by the defendant. It has
been further vehemently submitted that what was supplied to the
defendant was substandard material and, therefore, the defendants were
not liable to pay the amount of installation to the plaintiff. Both the
Courts below have wrongly considered that there was separate
transaction in respect of sell of old Ford car belonging to defendant No.4
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when admittedly there was no direct transaction between defendant
No.4 and the plaintiff. He, therefore, prayed for admission of the second
appeal on the ground that substantial questions of law as contemplated
under Section 100 of the Code of Civil Procedure are arising in this case.
4. Per contra, the learned Advocate appearing for respondent No.1 -
original plaintiff supported the reasons given by both the Courts below
and submitted that no substantial questions of law are involved in this
case. Learned Advocate for respondent Nos.3 to 4 supported the
submissions on behalf of the appellant.
5. At the outset, it is to be noted that certain facts are admitted to
the parties. Plaintiff is proprietor firm running the business of small
scale industries of automatic bricks. Plaintiff used to provide machinery
for installation of automatic bricks known as "Clay Bricks Industries". It
was agreed that the machinery would be installed by the plaintiff for
amount of Rs.24,00,000/-. The said payment was to be made in
installment. The ultimate installment of the payment was to be made
after the production of one lakh bricks. Certain duties were cast on the
defendants also. Plaintiff had given blank cheque drawn on State Bank
of India as security to the defendants.
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6. What are the disputed facts are that the plaintiff had supplied
machinery, however, according to the defendants, they were not of good
quality and were of substandard material. Defendants had paid
Rs.15,77,000/- first and thereafter, additional amount of Rs.6,00,000/-
was paid by way of cheque and Rs.8,000/- by way of cash. According to
the plaintiff, amount of Rs.21,60,000/- was due from defendants. Out of
which, he had received amount of Rs.12,00,000/- by cheque as a
security. Further, the plaintiff contends that defendant Nos.2 and 3 had
requested him to purchase the old car lying in the suit premises. It was
unused and under repair condition. The consideration was fixed at
Rs.1,75,000/-. According to the plaintiff, he had spent much amount for
the repairs of the car, however, then defendant Nos.1 to 3 filed a false
complaint about theft of the said car. Therefore, the plaintiff filed the
suit for recovery of the amount.
7. The defence was that the alleged transaction in respect of old car
is false. No such agreement was entered into in respect of the said car
between them and the plaintiff. Though they agreed that there was
transaction in respect of machinery, yet, the machinery which was
supplied by the plaintiff was of substandard quality. They were required
to shutdown their business due to such substandard quality of the
machinery.
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8. Defendant No.4 - the owner of the car submitted that he had not
entered into the agreement with the plaintiff in respect of sell of his car.
9. Taking into consideration the rival contentions, issues came to be
framed and parties have led evidence. If we peruse the written
statement, it can be seen that there was no point raised by them
regarding bar under Section 11 of the Code of Civil Procedure in view of
some proceedings before the Debts Recovery Tribunal. Copy of the
judgment before the learned Presiding Officer, Debts Recovery Tribunal,
in Original Application No.31 of 2007 decided on 27.09.2007 would
show that the applicant therein was State Bank of India. The plaintiff as
well as present appellant - defendant No.1 and one M/s. Gurudeo Bricks
Industries, to which the appellant has been shown as proprietor, was
defendants in the said application which was filed for recovery of
amount of Rs.12,12,427/-. The said application was allowed against all
the three defendants. All the three defendants were directed to pay
jointly and severally amount of Rs.12,12,427/- together with interest at
the rate of 12% per annum till realisation of the entire amount. Thus, it
is to be noted that the present plaintiff had not filed that suit for
recovery, but it was filed by the State Bank of India. The transaction
involving bank was different than the transaction contemplated in the
present suit. Parties were not litigating to the said litigation under the
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same title as they were litigating in Special Civil Suit No.21 of 2009 and,
therefore, the suit for recovery of amount by present respondent No.1
was definitely not barred by the principle of res judicata. No substantial
questions of law on the said point is arising.
10. As regards the oral transaction in respect of sell of car is
concerned, according to the plaintiff, the said car was lying in unused
condition at the said premises and defendant Nos.1 and 2 had then
requested the plaintiff to purchase the said car. He was given an idea
that the car is standing in the name of defendant No.4 and he being the
father of defendant Nos.1 and 2, definitely, plaintiff would have been
under the impression that the father would have asked defendant Nos.1
and 2 to sell his movable property. In view of the fact that the plaintiff
had paid amount towards the sell of the car and incurring repairs to
make that car roadworthy, then definitely he is entitled to recover the
said amount and inclusion of that transaction in the present suit does
not amount to misjoinder of cause of action.
11. Turning towards the main transaction, it appears that voluminous
documents were produced by the plaintiff and he examined in all three
witnesses. Present appellant had examined himself. Both the Courts
below have scanned the evidence and arrived at the conclusion that the
evidence led by the plaintiff is not shaken at all in the cross-examination
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on material points. Perusal of the said evidence by this Court also will
definitely conclude that the defendants have failed to bring material
admissions, which will non suit the plaintiff. Installation of machinery
by the plaintiff is admitted by the defendants, but then the defendants
have come with the case that they were of substandard quality. No
conclusive evidence to support this defence has been led by the
defendants. Though defendant No.1 had tried to contend that the
machinery was not delivered within the stipulated period as per
agreement, yet his admission disproved his said statement. In fact, he
has received subsidy for several months from DIC, Parbhani which
contemplated that the machinery was installed and then only the
subsidy would be provided. When he has received the subsidy, now he
cannot come with the case that the installation of the machinery was
beyond the stipulated period. If there would have been dispute
regarding quantity of machinery, duration of the machinery or
installation thereof, it could have been taken up by the defendants
immediately with the plaintiff, however, no such communication
between them has been produced on behalf of defendants. Thus, when
the installation of the machinery has been done as per the agreement,
then definitely the plaintiff was entitled to get the amount which was
then due. It had come on record that total amount of Rs.24,00,000/-
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was due from defendants and out of that they had paid amount of
Rs.15,77,000/- till 31.01.2007. That means, amount of Rs.8,23,000/-
was due against them on the date of the suit. Though the defendants
had contended that they had made further payment of Rs.2,16,000/-,
they could not support it by documentary evidence. Same is the case in
respect of payment of Rs.6,00,000/- on 21.12.2006 by cheque and
Rs.8,000/- in cash. The learned Trial Judge has rightly observed that
this fact of payment could have been definitely supported by the
defendants by filing their bank record or examining the bank employee.
Both the Courts below have, therefore, rightly come to the conclusion
that amount of Rs.8,23,000/- was outstanding from defendant Nos.1 to
3.
12. The conduct of defendants was also considered by the Courts
below. They have not disputed that the disputed car was in the suit
premises in unused condition. They have also not explained as to why
the plaintiff had incurred the expenditure on the repairs of the car from
06.11.2006 to 19.04.2007. They failed to give explanation as to how
the car went in possession of the plaintiff just before carrying out the
repairs. They have not come with the case that they had got the car
repaired with their own money. It is to be noted that the defendants had
made complaint with the police that the plaintiff has stolen the said car.
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Then the said car was taken from his custody by the police and the said
car is in possession of the defendants. This shows that it was only
because of the police complaint made by them, the appellant had
intervened and took the possession of the car. The present appellant has
not explained as to why there was delay in lodging the complaint
regarding alleged theft of the car. Under this circumstance, whatever
amount has been paid by the plaintiff towards the transaction of the car
will have to be made good to the plaintiff.
13. Reference to all the abovesaid facts is taken by this Court just to
consider whether there is any substance in the point raised by the
appellant that the facts have not been considered by the Courts below in
proper perspective and it has rendered the finding perverse. As
aforesaid, after scanning the evidence, it can be concluded that there is
absolutely no perversity in the findings of both the Courts below.
14. The point has also been said that there was a partnership firm and
application was filed to examine the Registrar of Firms, which came to
be rejected by the learned Trial Court and in the writ petition, this Court
had given liberty to the appellant to raise the said point before the first
Appellate Court. No doubt, there appears to be an application to that
effect, however, it is to be noted that before the Debts Recovery Tribunal,
the said firm has been shown to be the proprietor and there is no
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whisper about the same in the present appeal memo as to whether such/
similar contention was raised to challenge the order passed by the Debts
Recovery Tribunal, Aurangabad. Further, in order to establish the fact of
a registered firm, the certificate issued by competent authority regarding
the registration of the firm would be sufficient proof. Unless that
document would have been produced, there was no necessity for the
Trial Court to allow defendant No.1 to call the Registrar of Firms for
evidence. That application appears to have been filed just to protract
the litigation. No fault can be found with the rejection of that
application by the learned Trial Court.
15. From all the angles, if the points raised by the appellants were
considered, then it can be concluded that no substantial questions of law
as contemplated under Section 100 of the Code of Civil Procedure are
arising in this case requiring admission of the second appeal and,
therefore, second appeal deserves to be dismissed at the threshold.
16. Civil Application No.7726 of 2019 was filed for stay to the
execution and operation of the decree passed by the Courts below. It is
to be noted that this Court by order dated 10.07.2019 had granted
interim protection subject to deposit of amount of Rs.5,00,000/- by the
appellant in this Court. It appears that such amount was deposited on
13.08.2019. Now, in view of dismissal of second appeal, the application
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for stay deserves to be rejected/disposed of. Accordingly, it is disposed
of.
17. Civil Application No.10224 of 2019 was filed by original plaintiff
for modification of order passed by this Court on 10.07.2019 in the stay
application, however, in view of dismissal of second appeal as well as
disposal of the application for stay, this application does not survives and
accordingly, it stands disposed of.
18. Before parting, when the amount has been deposited by the
appellant in this Court, which was towards the decreetal amount, then
the original plaintiff is at liberty to withdraw the said amount which is
pending before this Court along with the interest accrued thereon, if any.
This amount deserves to be adjusted from the decreetal amount.
Accordingly, the execution Court should take note of the deposit of the
amount before this Court and its distribution to the original plaintiff as
per the decree.
19. With these observations, the second appeal stands dismissed.
[SMT. VIBHA KANKANWADI, J.]
scm
